Ward v. Hickey

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-1883

TOBY KLANG WARD,

Plaintiff, Appellant,

v.

CAROL HICKEY, ET AL.,

Defendants, Appellees.

No. 92-2240

TOBY KLANG WARD,

Plaintiff, Appellee,

v.

CAROL A. HICKEY, ET AL.,

Defendants, Appellees.

THE SCHOOL COMMITTEE OF THE TOWN OF BELMONT,

Defendant, Appellant.

No. 92-2241

TOBY KLANG WARD,

Plaintiff, Appellee,

v.

CAROL A. HICKEY, ET AL.,

Defendants, Appellants.

No. 92-2271

TOBY KLANG WARD,

Plaintiff, Appellant,

v.

CAROL HICKEY, ET AL.,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella and Stahl, Circuit Judges,

and Burns,1 Senior District Judge.

Americo A. Salini, Jr., with whom Massachusetts Teachers

Association, was on brief for plaintiff Toby Klang Ward.

Andrew J. McElaney, Jr., with whom John M. Griffin, Daniel

R. Harris, and Nutter, McClennen & Fish, were on brief for

defendants Carol A. Hickey and Mary N. Tinkham.
David C. Hawkins, with whom Robert J. Morrissey, and

Morrissey & Hawkins, were on brief for the School Committee of

the Town of Belmont.

June 15, 1993

1 Of the District of Oregon, sitting by designation.

TORRUELLA, Circuit Judge. Toby Klang Ward, a

nontenured biology teacher in the Belmont, Massachusetts public

schools, sued the School Committee of the Town of Belmont and

three members of the Committee as individuals for violation of

her First Amendment rights by the Committee's decision not to

reappoint her on the basis of a classroom discussion. Defendants

Mary Tinkham, Carol Hickey, and the late Margaret Gibson cast the

deciding votes against Ward's reappointment. Based on a jury's

answers to various special questions, the district court entered

judgment in favor of defendants, but denied defendants'

subsequent request for attorneys' fees. We affirm the district

court's judgment, albeit on different grounds. In addition, we

affirm part of the attorneys' fees judgment and remand the rest

for a determination of whether any of Ward's litigation was

frivolous.

BACKGROUND

The dispute arose out of a discussion in Ward's ninth

grade biology class concerning abortion of Down's Syndrome

fetuses.1 Defendant Tinkham learned of this discussion from a

parent of a student in that class.

In June 1982, the School Committee voted on Ward's

reappointment for the 1982-83 school year. A favorable vote

would have granted Ward tenure. By a deadlocked vote of 3-3,

1 Some controversy also transpired over Ward's alleged
discussion of Proposition 2 1/2, a Massachusetts referendum.
However, the jury found that none of the defendants' votes were
motivated by that discussion, and Ward did not appeal on that
issue. We therefore leave it out of our analysis.

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however, the School Committee decided to deny reappointment.

As a result of this decision, Ward sued, alleging: (1)

defendants retaliated against her for discussing abortion by

voting against her reappointment; (2) defendants conspired to

deny her constitutional rights by deciding not to rehire her; (3)

defendants acted arbitrarily and capriciously in violation of the

Fourteenth Amendment; and (4) defendants wrongfully terminated

her in violation of the School Committee's internal policies. On

November 16, 1989, a magistrate recommended that the district

court dismiss Ward's complaint for failure to state a claim, but

grant Ward leave to amend her complaint to include a First

Amendment "failure-to-forewarn" claim. According to the

magistrate, Ward had a constitutional right to notice that her

discussion was prohibited before the School Board could retaliate

against her for that discussion. On August 31, 1990, the

district court adopted the magistrate's recommendation, dismissed

the complaint, and granted the requested leave to amend.

Subsequently, Ward filed a second amended complaint

alleging the violation suggested by the magistrate. The court

denied defendants' motion to dismiss with respect to that claim,

but granted it to the extent that the complaint alleged a

violation of a First Amendment right to discuss controversial

issues in a high school class. Ward voluntarily dismissed her

claim against Gibson after Gibson's death on January 3, 1991.

Ultimately, the case went to a jury in two phases. At

the end of Phase I, the court asked the jury for verdicts on six

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special questions.2 In response to the first five questions,

the jury concluded that Tinkham voted against reappointment

because of the content of Ward's classroom statements, and that

Hickey and Gibson were not so motivated. Inexplicably, in

response to question six, the jury found that all three committee

members who voted against reappointment did so based on what they

believed Ward said in her biology classroom without first

investigating the matter.3 The jury also found that Tinkham and

Hickey acted recklessly in this decision.

Having narrowed the disputed issues to the vote cast by

Tinkham, the district court asked the jury three additional

questions in Phase II. In response to these questions, the jury

concluded that Tinkham's views regarding abortion of Down's

Syndrome fetuses did not conflict with the views that Tinkham

believed Ward espoused.

Armed with the jury verdicts, the district court

entered judgment for defendants. Specifically, the court found

for Hickey because the disputed discussion did not motivate her

vote. The court then relied on Perry Educ. Ass'n v. Perry Local

Educators' Ass'n, 460 U.S. 37 (1983), to conclude that Tinkham's

disagreement with Ward's views was an essential element of Ward's

2 See the jury's special verdict forms in the appendix.

3 The jury's response to question six contradicts its response
to the other questions regarding Gibson and Hickey, and the
contradiction was unexplained on the record. However, since Ward
dismissed her claim against Gibson, and did not appeal her case
against Hickey, the issue is moot.

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First Amendment claim.4 Since the jury found no disagreement,

the court found for Tinkham. As its members did not act

improperly, the court ultimately found for the School Committee.

The court also offered alternative grounds for its

judgment. According to the court, Tinkham was entitled to

qualified immunity, and Ward failed to establish the School

Committee's liability under 42 U.S.C. 1983 (1981).

After the court announced its decision, Tinkham and the

School Committee filed conditional motions seeking relief in the

event that this court vacates the district court's judgment. The

motions sought to set aside the jury's special verdicts which

found that Tinkham's vote was motivated by the controversial

classroom discussion, and the verdict which concluded that the

individual defendants voted without investigation into what

occurred in Ward's classroom. The defendants contended that the

verdicts contradicted the weight of the evidence. In the

alternative, they requested a new trial. The court denied the

motion to set aside the jury's special verdicts, but granted a

conditional new trial due to the clear weight of the evidence.5

Ward appeals from the final judgment and order, except for the

portion of the judgment relating to Hickey.

After the court entered its final judgment, defendants

4 The district court employed the wrong legal standard. See

infra pp. 12-13.

5 As the court determined that the investigation issue related
only to the School Committee's liability, the court granted the
new trial on that issue for the School Committee, but not for
Tinkham.

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filed a motion for attorneys' fees pursuant to 42 U.S.C. 1988.

The district court denied the motion but suggested that if we

reverse the fee ruling, we should only grant fees for the portion

of the litigation that occurred after January 3, 1992. The court

also indicated that the fees defendants requested for that

portion were reasonable. Defendants appeal the denial of fees,

and Ward cross-appeals, arguing for a reduction of the court's

fee award in its alternative judgment.

DISCUSSION

I. FIRST AMENDMENT

In general, as Ward was a nontenured teacher the School

Committee could have refused to rehire her without any reason at

all. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 283 (1977). However, a school committee violates the

First Amendment, applicable to the states through the Fourteenth

Amendment, if it denies rehiring in retaliation for a nontenured

teacher's exercise of constitutionally protected speech. Id. at

283-84; Perry v. Sinderman, 408 U.S. 593, 597 (1972).

To establish a First Amendment violation, Ward had to

show that (1) her discussion of abortion of Down's Syndrome

fetuses was constitutionally protected; and (2) the discussion

was a motivating factor in the decision not to rehire her. Mount

Healthy City Sch. Dist. of Educ., 429 U.S. at 287; see also Miles

v. Denver Public Schs., 944 F.2d 773, 775 (10th Cir. 1991). If

Ward made that showing, defendants had to establish by a

preponderance of the evidence that they would not have rehired

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Ward even if she had not made the controversial statements. Id.

We begin with the proposition that teachers retain

their First Amendment right to free speech in school. Tinker v.

Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969).

On the other hand, it is well-settled that public schools may

limit classroom speech to promote educational goals. See id. at

507. Courts have long recognized the need for public school

officials to assure that their students "learn whatever lessons

[an] activity is designed to teach, that readers or listeners are

not exposed to material that may be inappropriate for their level

of maturity, and that the views of the individual speaker are not

erroneously attributed to the school." Hazelwood Sch. Dist. v.

Kuhlmeier, 484 U.S. 260, 271 (1988).

In light of these competing principles, we find that a

school committee may regulate a teacher's classroom speech if:

(1) the regulation is reasonably related to a legitimate

pedagogical concern, id. at 373; and (2) the school provided the

teacher with notice of what conduct was prohibited, see Keyishian

v. Board of Regents, 385 U.S. 589, 604 (1967).

Through varying tests courts have afforded schools

great deference in regulating classroom speech. Krizek v. Board

of Educ., 713 F. Supp. 1131, 1138 (N.D. Ill. 1989). See, e.g.,

Zykan v. Warsaw Community Sch. Corp., 631 F.2d 1300, 1306 (7th

Cir. 1980) (abuse of discretion standard for analyzing school

board's decision to remove books from curriculum); Cary v. Board

of Educ. Arapahoe Sch. Dist., 598 F.2d 535, 543 (10th Cir. 1979)

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(local school boards may determine subjects taught, even if

promoting particular viewpoint). Similarly, in this circuit, we

have determined the propriety of school regulations by

considering circumstances such as age and sophistication of

students, relationship between teaching method and valid

educational objectives, and context and manner of presentation.

Mailloux v. Kiley, 448 F.2d 1242, 1243 (1st Cir. 1971) (per

curiam).

Recently, the Supreme Court in Kuhlmeier, 484 U.S. at

273, held that educators may limit the content of school-

sponsored speech as long as the limitations are "reasonably

related to legitimate pedagogical concerns." While the facts in

Kuhlmeier differ from those in the present case, at least one

court has applied this test to teachers' classroom speech. See

Miles, 944 F.2d at 775-79; cf. Krizek, 713 F. Supp. at 1139.

In Kuhlmeier, a school principal prevented students

from printing certain articles in a school newspaper. The

students participated in the production of the newspaper as part

of a journalism class. The Court found that because the school

newspaper was not a public forum, the school could impose

reasonable restrictions of expression through the paper.

Kuhlmeier, 484 U.S. at 260. The newspaper did not constitute a

public forum because the school never exhibited that intent.

Indeed, the Court's decision that a school newspaper is not a

public forum also derived from the fact that it was part of the

journalism class curriculum and a "regular classroom activity."

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Id. at 268.

Similarly, a teacher's statements in class during an

instructional period are also part of a curriculum and a regular

class activity. Like Kuhlmeier's school newspaper, the classroom

is not a public forum, and therefore is subject to reasonable

speech regulation. See Miles, 944 F.2d at 776 (ordinary

classroom is not public forum); Bishop v. Aronov, 926 F.2d 1066,

1071 (11th Cir. 1991).

After determining that the newspaper was not a public

forum, the Supreme Court reasoned that because the speech in the

school newspaper was part of the school curriculum, and therefore

school-sponsored, the school was entitled to more deference in

speech regulation than it would be with respect to other

"personal expression that happens to occur on the school

premises." Kuhlmeier, 484 U.S. at 271. The Court reasoned that

schools cannot be required to sponsor inappropriate speech. Id.

Like the newspaper, a teacher's classroom speech is

part of the curriculum. Indeed, a teacher's principal classroom

role is to teach students the school curriculum. Thus, schools

may reasonably limit teachers' speech in that setting. See

Miles, 944 F.2d at 776.

This circuit's test of teachers' speech regulation, as

set out in Mailloux, is consistent with the Supreme Court's test,

as set out in Kuhlmeier. Cf. Krizek, 713 F.Supp. at 1139. It

stands to reason that whether a regulation is reasonably related

to legitimate pedagogical concerns will depend on, among other

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things, the age and sophistication of the students, the

relationship between teaching method and valid educational

objective, and the context and manner of the presentation.

Even if under the above test a school may prohibit a

teacher's statements before she makes them, however, it is not

entitled to retaliate against speech that it never prohibited.

Cf. Mount Healthy City Bd. of Educ., 429 U.S. at 284 (classroom

speech was constitutionally protected when school board did not

suggest that teacher violated any established policy, or that the

board's reaction to the communication was "anything more than an

ad hoc response to [plaintiff's] communication . . . ."). Few

subjects lack controversy. If teachers must fear retaliation for

every utterance, they will fear teaching. As the Supreme Court

warned in Keyishian 385 U.S. at 604, "[t]he danger of that

chilling effect upon the exercise of vital First Amendment rights

must be guarded against by sensitive tools which clearly inform

teachers what is being proscribed."

Although the Court in Kuhlmeier did not address the

notice issue with respect to school-sponsored speech, it stated

only that prepublication control need not be pursuant to express

regulation. Kuhlmeier, 484 U.S. at 273 n.6. This suggests that

the Court would agree that postpublication retaliation must

derive from some prior limitation. Indeed, this circuit has long

recognized a teacher's right to notice of what classroom conduct

is prohibited. See, e.g., Mailloux, 448 F.2d at 1243; Keefe v.

Geanakos, 418 F.2d 359, 362 (1st Cir. 1969).

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Of course, while we acknowledge a First Amendment right

of public school teachers to know what conduct is proscribed, we

do not hold that a school must expressly prohibit every

imaginable inappropriate conduct by teachers. Cf. Krizek, 713 F.

Supp. at 1140 (warning that such requirement is an impossible and

undesirable burden). The relevant inquiry is: based on existing

regulations, policies, discussions, and other forms of

communication between school administration and teachers, was it

reasonable for the school to expect the teacher to know that her

conduct was prohibited?

II. THE DISTRICT COURT'S ANALYSIS

The district court found that under Perry Educ. Ass'n,

the School Committee's retaliation was permissible as long as it

did not suppress Ward's speech based on the viewpoint she

expressed. In Perry Educ. Ass'n, pursuant to a collective

bargaining agreement, a school permitted a teachers' association

to use the interschool mailing system and the teachers'

mailboxes. Under the same agreement, the school permitted no

access by rival teachers' associations. A rival association sued

alleging a First Amendment violation. The Supreme Court in that

case held that the preferential access did not violate the First

Amendment. Perry Educ. Ass'n, 460 U.S. at 44-54. The court

reasoned that a state may reserve public property for its

intended use. However, it may regulate speech on that property

only if the regulation is reasonable and not an effort to

suppress expression due to the view expressed. Id. at 46.

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Under the Kuhlmeier rationale, Perry Educ. Ass'n does

not apply to teachers' classroom speech. A faculty mailing

system significantly differs from a school-sponsored curriculum

being taught to a captive audience of youngsters. Schools need

not fear that speech on a faculty mailing system will prevent

students from learning appropriate classroom lessons. Indeed,

while citing Perry Educ. Ass'n, the Court in Kuhlmeier did not

require that school regulation of school-sponsored speech be

viewpoint neutral. See Kuhlmeier, 484 U.S. at 270.

Moreover, Perry Educ. Ass'n does not stand for the

proposition that where a state reserves property for its intended

use, regulation of speech on that property is permissible as long

as it is viewpoint neutral. Even under Perry Educ. Ass'n,

viewpoint discrimination is not an essential element of a First

Amendment claim. The Court in that case specifically held that

the regulation also must be reasonable. Perry Educ. Ass'n, 460

U.S. at 46. Thus, even if a regulation is viewpoint neutral, it

can be impermissible under Perry Educ. Ass'n.

III. APPLICATION TO THE PRESENT CASE

On appeal, Ward does not argue that the School

Committee was not entitled to limit her statements had they

chosen to do so in advance. She argues only that the School

Committee failed to notify her that her conduct was prohibited.

Since the trial jury never determined whether Ward received such

notice, she requests a trial on that issue. We find that she is

not entitled to one.

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Rule 51 of the Federal Rules of Civil Procedure states

that without objecting before the jury retires, no party may

later complain of a failure to give an instruction.6 This rule

equally applies to special interrogatories. Phav. v. Trueblood,

Inc., 915 F.2d 764, 769 (1st Cir. 1990) (citing Anderson v.

Cryovac, 862 F.2d 910, 918 (1st Cir. 1988)).

In the present case, Ward never requested a special

interrogatory on the issue of notice. Moreover, while Ward

essentially argues that she had no meaningful opportunity to

request such a question, we find otherwise. Before submitting

the Phase I special verdict form to the jury, the district court

judge held a conference in which he specifically invited the

parties' suggestions. (Conference on Verdict Form at 4). Ward

failed to request an interrogatory on notice at that time.

Additionally, Ward failed to mention the notice issue in both of

her submissions of proposed changes to the Phase I verdict form.

After considering the court's proposed verdict form, Ward moved

for additional interrogatories to the jury. Again, Ward made no

request for a question on the notice issue. Similarly, while

defendants' counsel inquired about the notice issue before

submitting the Phase II verdict form to the jury, Ward did not

6 Rule 51 provides in relevant part:

No party may assign as error the giving
or the failure to give an instruction
unless that party objects thereto before
the jury retires to consider its verdict,
stating distinctly the matter objected to
and the grounds of the objection.

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request a question on the matter. In response to defendants'

inquiry, the court stated that it would not address that issue in

Phase II, and would address any further issues in future phases.

After the jury answered the Phase II questions, Ward again missed

her chance to request an interrogatory on the notice issue.

Indeed, after Phase II, Ward specifically argued to the district

court that "it's not necessary to have a phase that deals with

the question of notice." (Hearing on Motions, July 7, 1992, at

22). Instead, Ward asked the court to find a lack of notice as a

matter of law, which the court refused to do. It was not until

six days after the court's entry of a final judgment that Ward

finally requested a jury finding on the notice issue. We

conclude that although Ward had numerous opportunities to request

a jury determination on the principal issue of her case, she

failed to do so. She therefore has waived the right to that

determination, and has not made her case against defendants.

IV. ATTORNEYS' FEES

Under 42 U.S.C. 1988 (Supp. 1992), a court, in its

discretion, may award attorneys' fees to a prevailing party in a

civil rights case.7 A prevailing defendant in a civil rights

7 Section 1988 provides in relevant part:

In any action or proceeding to enforce a
provision of sections 1981, 1982, 1983,
1985, and 1986 of this title, title IX of
Public Law 92-318, or title VI of the
Civil Rights Act of 1964, the court, in
its discretion, may allow the prevailing
party, other than the United States, a
reasonable attorney's fee as part of the
costs.

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case may recover attorneys' fees if it can show that "plaintiff's

action was frivolous, unreasonable, or groundless, or that the

plaintiff continued to litigate after it clearly became so."

Foster v. Mydas Assocs., Inc., 943 F.2d 139, 145-46 (1st Cir.

1991) (quoting Christianburg Garment Co. v. EEOC, 434 U.S. 412,

422 (1978)).

The district court denied attorneys' fees by

analogizing to the interrelated claims doctrine discussed in

Lipsett v. Blanco, 975 F.2d 934 (1st Cir. 1992). Under the

doctrine, once a court decides that a party has prevailed for the

purposes of a fee-shifting statute, the fee award may include

fees for work performed on unsuccessful claims if that party's

unsuccessful claims are interrelated to the successful claims by

a common core of facts or related legal theories. Id. at 940-41.

In the present case, the district court found that

while some of Ward's legal theories might have been frivolous,

some of the claims were permissible. The court also found all of

Ward's claims interrelated. Thus, analogizing to the

interrelated claims doctrine, the court denied fees on all of

Ward's claims.

We find the district court's reliance on the

interrelated claims doctrine misplaced. That doctrine is used

for convenience in the difficult task of calculating fees. See

id. It is inapplicable unless the court initially finds the

plaintiff a prevailing party. A court may not use the doctrine

to decide not to grant any fees.

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The standard for a civil rights defendant to receive

fees is high to encourage legitimate civil rights claims. See

Foster v. Mydas Assoc., Inc., 943 F.2d at 144. On the other

hand, frivolous civil rights claims waste judicial resources that

would otherwise be used for legitimate claims. See id.

Accordingly, a district court should not deny fees for defending

frivolous claims merely because calculation would be difficult.

We therefore refuse to adopt the district court's primary fee

judgment.

In addition to denying fees, the district court ruled

in the alternative that "even if persuaded" that some of Ward's

claims were frivolous, the litigation that took place before the

court's order of January 3, 1992 was not frivolous, and that the

requested fees for the litigation beyond that time were

reasonable. Given the muddled state of the law surrounding this

case, we find that the district court did not abuse its

discretion in finding that Ward's claims were not clearly

frivolous before January 3, 1992. Thus, we adopt the court's

ruling to the extent that it denies fees for the litigation that

occurred before that time.

However, in its alternative ruling, the district court

never determined whether any of Ward's litigation that continued

beyond that time was frivolous. We ask the district court on

remand to make that determination, and calculate any fees

accordingly.

CONCLUSION

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We affirm the district court's judgment for defendants

on the merits. We also affirm the district court's alternate fee

ruling to the extent that it denies fees for the litigation prior

to January 3, 1992. However, we remand for a determination of

which, if any, of Ward's litigation beyond January 3, 1992 was

frivolous. If there was any frivolous litigation, the district

court should award fees to defendants accordingly.

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