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
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.
-3-
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
-4-
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.
-5-
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.
-6-
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
DISCUSSION
__________
I. FIRST AMENDMENT
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
-7-
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)
_____________________________
-8-
(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."
-9-
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
-10-
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).
________
-11-
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
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.
___
-12-
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
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.
-13-
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.
-14-
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
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.
-15-
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.
-16-
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
CONCLUSION
__________
-17-
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.
-18-