Respondent, an untenured teacher (who had previously been
involved in an altercation with another teacher, an argument with
school cafeteria employees, an incident in which he swore at
students, and an incident in which he made obscene gestures to girl
students), conveyed through a telephone call to a radio station the
substance of a memorandum relating to teacher dress and appearance
that the school principal had circulated to various teachers. The
radio station announced the adoption of the dress code as a news
item. Thereafter, petitioner School Board, adopting a
recommendation of the superintendent, advised respondent that he
would not be rehired, and cited his lack of tact in handling
professional matters, with specific mention of the radio station
and obscene gesture incidents. Respondent then brought this action
against petitioner for reinstatement and damages, claiming that
petitioner's refusal to rehire him violated his rights under the
First and Fourteenth Amendments. Although respondent asserted
jurisdiction under both 28 U.S.C. § 1343 and § 1331, the District
Court rested jurisdiction only on § 1331. The District Court, which
found that the incidents involving respondent had occurred,
concluded that the telephone call was "clearly protected by the
First Amendment" and that, because it had played a "substantial
part" in petitioner's decision not to rehire respondent, he was
entitled to reinstatement with backpay. The Court of Appeals
affirmed. Petitioner, in addition to attacking the District Court's
jurisdiction under § 1331 on the ground that the $10,000
jurisdictional requirement of that provision was not satisfied in
this case, raised an additional jurisdictional issue after this
Court had granted certiorari and after petitioner had filed its
reply brief, claiming that respondent's only substantive
constitutional claim arises under 42 U.S.C. § 1983, and that,
because petitioner School Board is not a "person" for purposes of §
1983, liability may no more be imposed on it where federal
jurisdiction rests on § 1331 than where jurisdiction is grounded on
§ 1343.
Held:
1. Respondent's complaint sufficiently pleaded jurisdiction
under 28 U.S.C. § 1331. Though the amount in controversy thereunder
must
Page 429 U. S. 275
exceed $10,000, even if the District Court had chosen to award
only compensatory damages, it was far from a "legal certainty" at
the time of suit that respondent would not have been entitled to
more than that amount.
St. Paul Indemnity Co. v. Red Cab
Co., 303 U. S. 283,
303 U. S.
288-289. Pp.
429 U. S.
276-277.
2. Petitioner, in making its belated contention concerning §
1983, failed to preserve the issue whether the complaint stated a
claim upon which relief could be granted against it. Because the
question involved is not of the jurisdictional sort which the Court
raises on its own motion, it is assumed without deciding that
respondent could sue under § 1331 without regard to the limitations
imposed by § 1983. Pp.
429 U. S.
277-279.
3. Since, under Ohio law, the "State" does not include
"political subdivisions" (a category including school districts),
and the record shows that a local school board like petitioner is
more like a county or city than it is an arm of the State,
petitioner is not immune from suit under the Eleventh Amendment.
Pp.
429 U. S.
279-281.
4. Respondent's constitutional claims are not defeated because
he did not have tenure.
Perry v. Sindermann, 408 U.
S. 593. Pp.
429 U. S.
283-284.
5. That conduct protected by the First and Fourteenth Amendments
played a substantial part in the decision not to rehire respondent
does not necessarily amount to a constitutional violation
justifying remedial action. The proper test is one that protects
against the invasion of constitutional rights without commanding
undesirable consequences not necessary to the assurance of those
rights. Since respondent here satisfied the burden of showing that
his conduct was constitutionally protected and was a motivating
factor in the petitioner's decision not to rehire him, the District
Court should have gone on to determine whether petitioner had shown
by a preponderance of the evidence that it would have reached the
same decision even in the absence of the protected conduct. Pp.
429 U. S.
284--287.
529 F.2d 524, vacated and remanded.
REHNQUIST, J., delivered the opinion for a unanimous Court.
Page 429 U. S. 276
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent Doyle sued petitioner Mt. Healthy Board of Education
in the United States District Court for the Southern District of
Ohio. Doyle claimed that the Board's refusal to renew his contract
in 1971 violated his rights under the First and Fourteenth
Amendments to the United States Constitution. After a bench trial,
the District Court held that Doyle was entitled to reinstatement
with backpay. The Court of Appeals for the Sixth Circuit affirmed
the judgment, 529 F.2d 524, and we granted the Board's petition for
certiorari, 425 U.S. 933, to consider an admixture of
jurisdictional and constitutional claims.
I
Although the respondent's complaint asserted jurisdiction under
both 28 U.S.C. § 1343 and 28 U.S.C. § 1331, the District Court
rested its jurisdiction only on § 1331. Petitioner's first
jurisdictional contention, which we have little difficulty
disposing of, asserts that the $10,000 amount in controversy
required by that section is not satisfied in this case.
The leading case on this point is
St. Paul Indemnity Co. v.
Red Cab Co., 303 U. S. 283
(1938), which stated this test:
"[T]he sum claimed by the plaintiff controls if the claim is
apparently made in good faith. It must appear to a legal certainty
that the claim is really for less than the jurisdictional amount to
justify dismissal. The inability of plaintiff to recover an amount
adequate to give the court jurisdiction does not show his bad faith
or oust the jurisdiction."
Id. at
303 U. S.
288-289. (Footnotes omitted.)
We have cited this rule with approval as recently as
Weinberger v. Wiesenfeld, 420 U.
S. 636,
420 U. S. 642
n. 10 (1975), and think it requires disposition of the
jurisdictional question
Page 429 U. S. 277
tendered by the petition in favor of the respondent. At the time
Doyle brought this action for reinstatement and $50,000 damages, he
had already accepted a job in a different school system paying
approximately $2,000 per year less than he would have earned with
the Mt. Healthy Board had he been rehired. The District Court in
fact awarded Doyle compensatory damages in the amount of $5,158 by
reason of income already lost at the time it ordered his
reinstatement. Even if the District Court had chosen to award only
compensatory damages and not reinstatement, it was far from a
"legal certainty" at the time of suit that Doyle would not have
been entitled to more than $10,000.
II
The Board has filed a document entitled "Supplemental
Authorities" in which it raises quite a different "jurisdictional"
issue from that presented in its petition for certiorari and
disposed of in the preceding section of this opinion. Relying on
the District Court opinion in
Weathers v. West Yuma County
School Dist., 387 F.
Supp. 552, 556 (Colo.1974), the Board contends that, even
though Doyle may have met the jurisdictional amount requirement of
§ 1331, it may not be subjected to liability in this case because
Doyle's only substantive constitutional claim arises under 42
U.S.C. § 1983. Because it is not a "person" for purposes of § 1983,
the Board reasons, liability may no more be imposed on it where
federal jurisdiction is grounded on 28 U.S.C. § 1331 than where
such jurisdiction is grounded on 28 U.S.C. § 1343.
The District Court avoided this issue by reciting that it had
not
"stated any conclusion on the possible
Monroe-Kenosha
problem in this case, since it seems that the case is properly here
as a § 1331 case, as well as a § 1983 one."
App. to Pet. for Cert. 14a-15a. This reference to our decisions
in
Monroe v. Pape, 365 U. S. 167
(1961), and
City of Kenosha v. Bruno, 412 U.
S. 507 (1973), where it was held
Page 429 U. S. 278
that a municipal corporation is not a suable "person" under §
1983, raises the question whether petitioner Board in this case is
sufficiently like the municipal corporations in those cases so that
it, too, is excluded from § 1983 liability.
The quoted statement of the District Court makes clear its view
that, if the jurisdictional basis for the action is § 1331, the
limitations contained in 42 U.S. C § 1983 do not apply. The Board
argues, on the contrary, that, since Congress, in § 1983, has
expressly created a remedy relating to violations of constitutional
rights under color of state law, one who seeks to recover for such
violations is bound by the limitations contained in § 1983 whatever
jurisdictional section he invokes.
The question of whether the Board's arguments should prevail, or
whether, as respondent urged in oral argument, we should, by
analogy to our decision in
Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U. S. 388
(1971), imply a cause of action directly from the Fourteenth
Amendment which would not be subject to the limitations contained
in § 1983, is one which has never been decided by this Court.
Counsel for respondent at oral argument suggested that it is an
extremely important question, and one which should not be decided
on this record. We agree with respondent.
The Board has raised this question for the first time in a
document filed after its reply brief in this Court. Were it in
truth a contention that the District Court lacked jurisdiction, we
would be obliged to consider it, even as we are obliged to inquire
sua sponte whenever a doubt arises as to the existence of
federal jurisdiction.
Liberty Mutual Ins. Co. v. Wetzel,
424 U. S. 737,
424 U. S. 740
(1976);
Louisville & Nashville R. Co. v. Mottley,
211 U. S. 149,
211 U. S. 152
(1908). And if this were a § 1983 action, brought under the special
jurisdictional provision of 28 U.S.C. § 1343 which requires no
amount in controversy, it would be appropriate for this Court to
inquire, for jurisdictional purposes,
Page 429 U. S. 279
whether a statutory action had in fact been alleged.
City of
Kenosha v. Bruno, supra. However, where an action is brought
under § 1331, the catchall federal question provision requiring in
excess of $10,000 in controversy, jurisdiction is sufficiently
established by allegation of a claim under the Constitution or
federal statutes, unless it "clearly appears to be immaterial and
made solely for the purpose of obtaining jurisdiction . . . ."
Bell v. Hood, 327 U. S. 678,
327 U. S. 682
(1946);
Montana-Dakota Utilities Co. v. Northwestern Pub. Serv.
Co., 341 U. S. 246,
341 U. S. 249
(1951).
Here, respondent alleged that the Board had violated his rights
under the First and Fourteenth Amendments, and claimed the
jurisdictionally necessary amount of damages. The claim that the
Board is a "person" under § 1983, even assuming the correctness of
the Board's argument that the § 1331 action is limited by the
restrictions of § 1983, is not so patently without merit as to fail
the test of
Bell v. Hood, supra. Therefore, the question
as to whether the respondent stated a claim for relief under § 1331
is not of the jurisdictional sort which the Court raises on its own
motion. The related question of whether a school district is a
person for purposes of § 1983 is likewise not before us. We leave
those questions for another day, and assume, without deciding, that
the respondent could sue under § 1331 without regard to the
limitations imposed by 42 U.S.C. § 1983.
III
The District Court found it unnecessary to decide whether the
Board was entitled to immunity from suit in the federal courts
under the Eleventh Amendment, because it decided that any such
immunity had been waived by Ohio statute and decisional law. In
view of the treatment of waiver by a State of its Eleventh
Amendment immunity from suit in
Ford Motor Co. v. Dept. of
Treasury, 323 U. S. 459,
323 U. S.
464-466 (1945), we are less sure than was the District
Court
Page 429 U. S. 280
that Ohio had consented to suit against entities such as the
Board in the federal courts. We prefer to address instead the
question of whether such an entity had any Eleventh Amendment
immunity in the first place, since, if we conclude that it had
none, it will be unnecessary to reach the question of waiver.
The bar of the Eleventh Amendment to suit in federal courts
extends to States and state officials in appropriate circumstances,
Edelman v. Jordan, 415 U. S. 651
(1974);
Ford Motor Co. v. Dept. of Treasury, supra, but
does not extend to counties and similar municipal corporations.
See Lincoln County v. Luning, 133 U.
S. 529,
133 U. S. 530
(1890);
Moor v. County of Alameda, 411 U.
S. 693,
411 U. S.
717-721 (1973). The issue here thus turns on whether the
Mt. Healthy Board of Education is to be treated as an arm of the
State partaking of the State's Eleventh Amendment immunity, or is
instead to be treated as a municipal corporation or other political
subdivision to which the Eleventh Amendment does not extend. The
answer depends, at least in part, upon the nature of the entity
created by state law. Under Ohio law, the "State" does not include
"political subdivisions," and "political subdivisions" do include
local school districts. Ohio Rev.Code Ann. § 2743.01 (Page Supp.
1975). Petitioner is but one of many local school boards within the
State of Ohio. It is subject to some guidance from the State Board
of Education, Ohio Rev.Code Ann. § 3301.07 (Page 1972 and Supp.
1975), and receives a significant amount of money from the State.
Ohio Rev.Code Ann. § 3317 (Page 1972 and Supp. 1975). But local
school boards have extensive powers to issue bonds, Ohio Rev.Code
Ann. § 133.27 (Page 1969), and to levy taxes within certain
restrictions of state law. Ohio Rev.Code Ann. §§ 5705.02, 5705.03,
5705.192, 5705.194 (Page 1973 and Supp. 1975). On balance, the
record before us indicates that a local school board such as
petitioner is more like a county or city than it is like an arm of
the State. We
Page 429 U. S. 281
therefore hold that it was not entitled to assert any Eleventh
Amendment immunity from suit in the federal courts.
IV
Having concluded that respondent's complaint sufficiently
pleaded jurisdiction under 28 U.S.C. § 1331, that the Board has
failed to preserve the issue whether that complaint stated a claim
upon which relief could be granted against the Board, and that the
Board is not immune from suit under the Eleventh Amendment, we now
proceed to consider the merits of respondent's claim under the
First and Fourteenth Amendments.
Doyle was first employed by the Board in 1966. He worked under
one-year contracts for the first three years, and under a two-year
contract from 1969 to 1971. In 1969, he was elected president of
the Teachers' Association, in which position he worked to expand
the subjects of direct negotiation between the Association and the
Board of Education. During Doyle's one-year term as president of
the Association, and during the succeeding year when he served on
its executive committee, there was apparently some tension in
relations between the Board and the Association.
Beginning early in 1970, Doyle was involved in several incidents
not directly connected with his role in the Teachers' Association.
In one instance, he engaged in an argument with another teacher
which culminated in the other teacher's slapping him. Doyle
subsequently refused to accept an apology and insisted upon some
punishment for the other teacher. His persistence in the matter
resulted in the suspension of both teachers for one day, which was
followed by a walkout by a number of other teachers, which in turn
resulted in the lifting of the suspensions.
On other occasions, Doyle got into an argument with employees of
the school cafeteria over the amount of spaghetti which had been
served him; referred to students, in connection
Page 429 U. S. 282
with a disciplinary complaint, as "sons of bitches"; and made an
obscene gesture to two girls in connection with their failure to
obey commands made in his capacity as cafeteria supervisor.
Chronologically, the last in the series of incidents which
respondent was involved in during his employment by the Board was a
telephone call by him to a local radio station. It was the Board's
consideration of this incident which the court below found to be a
violation of the First and Fourteenth Amendments.
In February, 1971, the principal circulated to various teachers
a memorandum relating to teacher dress and appearance, which was
apparently prompted by the view of some in the administration that
there was a relationship between teacher appearance and public
support for bond issues. Doyle's response to the receipt of the
memorandum -- on a subject which he apparently understood was to be
settled by joint teacher-administration action -- was to convey the
substance of the memorandum to a disc jockey at WSAI, a Cincinnati
radio station, who promptly announced the adoption of the dress
code as a news item. Doyle subsequently apologized to the
principal, conceding that he should have made some prior
communication of his criticism to the school administration.
Approximately one month later, the superintendent made his
customary annual recommendations to the Board as to the rehiring of
nontenured teachers. He recommended that Doyle not be rehired. The
same recommendation was made with respect to nine other teachers in
the district, and, in all instances, including Doyle's, the
recommendation was adopted by the Board. Shortly after being
notified of this decision, respondent requested a statement of
reasons for the Board's actions. He received a statement citing "a
notable lack of tact in handling professional matters which leaves
much doubt as to your sincerity in establishing good school
relationships." That general statement was followed
Page 429 U. S. 283
by references to the radio station incident and to the obscene
gesture incident. [
Footnote
1]
The District Court found that all of these incidents had in fact
occurred. It concluded that respondent Doyle's telephone call to
the radio station was "clearly protected by the First Amendment,"
and that, because it had played a "substantial part" in the
decision of the Board not to renew Doyle's employment, he was
entitled to reinstatement with backpay. App. to Pet. for Cert.
12a-13a. The District Court did not expressly state what test it
was applying in determining that the incident in question involved
conduct protected by the First Amendment, but simply held that the
communication to the radio station was such conduct. The Court of
Appeals affirmed in a brief per curiam opinion. 529 F.2d 524.
Doyle's claims under the First and Fourteenth Amendments are not
defeated by the fact that he did not have tenure. Even though he
could have been discharged for no reason whatever, and had no
constitutional right to a hearing prior to the decision not to
rehire him,
Board of Regents v. Roth, 408 U.
S. 564 (1972), he may nonetheless establish a claim to
reinstatement if the decision not to rehire him was made by reason
of his exercise of constitutionally
Page 429 U. S. 284
protected Fist Amendment freedoms.
Perry v. Sindermann,
408 U. S. 593
(1972).
That question of whether speech of a government employee is
constitutionally protected expression necessarily entails
striking
"a balance between the interests of the teacher, as a citizen,
in commenting upon matters of public concern and the interest of
the State, as an employer, in promoting the efficiency of the
public services it performs through its employees."
Pickering v. Board of Education, 391 U.
S. 563,
391 U. S. 568
(1968). There is no suggestion by the Board that Doyle violated any
established policy, or that its reaction to his communication to
the radio station was anything more than an
ad hoc
response to Doyle's action in making the memorandum public. We
therefore accept the District Court's finding that the
communication was protected by the First and Fourteenth Amendments.
We are not, however, entirely in agreement with that court's manner
of reasoning from this finding to the conclusion that Doyle is
entitled to reinstatement with backpay.
The District Court made the following "conclusions" on this
aspect of the case:
"1) If a non-permissible reason,
e.g., exercise of
First Amendment rights, played a substantial part in the decision
not to renew -- even in the face of other permissible grounds --
the decision may not stand (citations omitted)."
"2) A non-permissible reason did play a substantial part. That
is clear from the letter of the Superintendent immediately
following the Board's decision, which stated two reasons -- the
one, the conversation with the radio station clearly protected by
the First Amendment. A court may not engage in any limitation of
First Amendment rights based on 'tact' -- that is not to say that
the 'tactfulness' is irrelevant to other issues in this case."
App. to Pet. for Cert. 12a-13a.
Page 429 U. S. 285
At the same time, though, it stated that
"[i]n fact, as this Court sees it and finds, both the Board and
the Superintendent were faced with a situation in which there did
exist in fact reason . . . independent of any First Amendment
rights or exercise thereof, to not extend tenure."
Id. at 12a
Since respondent Doyle had no tenure, and there was therefore
not even a state law requirement of "cause" or "reason" before a
decision could be made not to renew his employment, it is not clear
what the District Court meant by this latter statement. Clearly the
Board legally could have dismissed respondent had the radio station
incident never come to its attention. One plausible meaning of the
court's statement is that the Board and the Superintendent not only
could, but in fact would have reached that decision had not the
constitutionally protected incident of the telephone call to the
radio station occurred. We are thus brought to the issue whether,
even if that were the case, the fact that the protected conduct
played a "substantial part" in the actual decision not to renew
would necessarily amount to a constitutional violation justifying
remedial action. We think that it would not.
A rule of causation which focuses solely on whether protected
conduct played a part, "substantial" or otherwise, in a decision
not to rehire could place an employee in a better position as a
result of the exercise of constitutionally protected conduct than
he would have occupied had he done nothing. The difficulty with the
rule enunciated by the District Court is that it would require
reinstatement in cases where a dramatic and perhaps abrasive
incident is inevitably on the minds of those responsible for the
decision to rehire, and does indeed play a part in that decision --
even if the same decision would have been reached had the incident
not occurred. The constitutional principle at stake is sufficiently
vindicated if such an employee is placed in no
Page 429 U. S. 286
worse a position. than i he had not engaged in the conduct. A
borderline or marginal candidate should not have the employment
question resolved against him because of constitutionally protected
conduct. But that same candidate ought not to be able, by engaging
in such conduct, to prevent his employer from assessing his
performance record and reaching a decision not to rehire on the
basis of that record, simply because the protected conduct makes
the employer more certain of the correctness of its decision.
This is especially true where, as the District Court observed
was the case here, the current decision to rehire will accord
"tenure." The long-term consequences of an award of tenure are of
great moment both to the employee and to the employer. They are too
significant for us to hold that the Board in this case would be
precluded, because it considered constitutionally protected conduct
in deciding not to rehire Doyle, from attempting to prove to a
trier of fact that quite apart from such conduct Doyle's record was
such that he would not have been rehired in any event.
In other areas of constitutional law, this Court has found it
necessary to formulate a test of causation which distinguishes
between a result caused by a constitutional violation and one not
so caused. We think those are instructive in formulating the test
to be applied here.
In
Lyons v. Oklahoma, 322 U. S. 596
(1944), the Court held that, even though the first confession given
by a defendant had been involuntary, the Fourteenth Amendment did
not prevent the State from using a second confession obtained 12
hours later if the coercion surrounding the first confession had
been sufficiently dissipated as to make the second confession
voluntary. In
Wong Sun v. United States, 371 U.
S. 471,
371 U. S. 491
(1963), the Court was willing to assume that a defendant's arrest
had been unlawful, but held that
"the connection between the arrest and the statement [given
several days later] had 'become so attenuated as to
Page 429 U. S. 287
dissipate the taint.'
Nardone v. United States,
308 U. S.
338,
308 U. S. 341."
Parker v. North Carolina, 397 U.
S. 790,
397 U. S. 796
(1970), held that, even though a confession be assumed to have been
involuntary in the constitutional sense of the word, a guilty plea
entered over a month later met the test for the voluntariness of
such a plea. The Court in
Parker relied on the same quoted
language from
Nardone, supra, as did the Court in
Wong
Sun, supra. While the type of causation on which the taint
cases turn may differ somewhat from that which we apply here, those
cases do suggest that the proper test to apply in the present
context is one which likewise protects against the invasion of
constitutional rights without commanding undesirable consequences
not necessary to the assurance of those rights.
Initially, in this case, the burden was properly placed upon
respondent to show that his conduct was constitutionally protected,
and that this conduct was a "substantial factor" -- or, to put it
in other words, that it was a "motivating factor" [
Footnote 2] in the Board's decision not to
rehire him. Respondent having carried that burden, however, the
District Court should have gone on to determine whether the Board
had shown by a preponderance of the evidence that it would have
reached the same decision as to respondent's reemployment even in
the absence of the protected conduct.
We cannot tell from the District Court opinion and conclusions,
nor from the opinion of the Court of Appeals affirming the judgment
of the District Court, what conclusion those courts would have
reached had they applied this test. The judgment of the Court of
Appeals is therefore vacated, and the case remanded for further
proceedings consistent with this opinion.
So ordered.
[
Footnote 1]
"I. You have shown a notable lack of tact in handling
professional matters which leaves much doubt as to your sincerity
in establishing good school relationships."
"A. You assumed the responsibility to notify W.S.A.I. Radio
Station in regards to the suggestion of the Board of Education that
teachers establish an appropriate dress code for professional
people. This raised much concern not only within this community,
but also in neighboring communities."
"B. You used obscene gestures to correct students in a situation
in the cafeteria causing considerable concern among those students
present."
"Sincerely yours,"
"Rex Ralph"
"Superintendent"
[
Footnote 2]
See Arlington Heights v. Metropolitan Housing Dev. Corp.,
ante at
429 U. S.
270-271, n. 21.