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Constitutional Law No. 02-10351, 6/2/2003. Click here for the full text of this decision FACTS: Karen Jo Barrow claims that she was denied a public-school position because her children attended private school, an alleged violation of her constitutional right to educate her children in private school. The district court rendered summary judgment for the school superintendent, Dr. Herman Smith, on the ground of qualified immunity and certified it as final. HOLDING: Reversed. Whether a public official is entitled to qualified immunity requires that the court pass on two questions. First, viewing the facts in a light most favorable to the plaintiff, the court must determine if the plaintiff has alleged the violation of a constitutional right. The second question requires the court to determine if the constitutional right was clearly established when the violation supposedly occurred. The right can be said to have been clearly established only if all reasonable officials in the defendant’s position would have concluded that the challenged state action was unconstitutional. All of Barrow’s claims aver that Barrow, a public-school employee, has a constitutionally protected right to select a private-school education for her children. The court’s inquiry at this stage is limited to the question whether there is a recognized constitutional right and not whether that right is grounded in the First Amendment, the 14th Amendment, or both. Twenty years ago, in Brantley v. Surles, 718 F.2d 1354 (5th Cir. 1983), the court said that “[t]he parental interest in the direction and control of a child’s education is central to the family’s constitutionally protected privacy rights.” The court recognized that constitutional rights take on a different hue in the context of public-school employment in light of the state’s interest “in promoting efficiency in the educational services which it provides through its school employees.” Thus, the state may restrict its employee’s constitutionally protected conduct “whenever that conduct materially and substantially impedes the operation or effectiveness of the [state's] educational program.” The question presented in Brantleywas whether a Mississippi school district superintendent could lawfully terminate Brantley, an elementary school cafeteria manager, who decided to transfer her son to a segregated private school. Brantley was white and worked in a predominately black public school. The superintendent testified that interracial dissension “might” occur if the plaintiff’s son continued to attend the segregated private school. The court rejected this justification for terminating Brantley, concluding that it “was unsupported by any objective evidence.” Several years later the court decided Fyfe v. Curlee, 902 F.2d 401 (5th Cir. 1990). The plaintiff in that case, a secretary to a school principal, also decided to enroll her daughter in a segregated private school. As a result, the school superintendent transferred her to a menial position with no responsibility. Relying on Brantley, the court affirmed that the Fyfeplaintiff had a protected right to select a private-school education for her child “under the First Amendment and the penumbra of familial privacy rights recognized by the Supreme Court.” In Fyfe, black families threatened to boycott businesses in the town in which the school district was located unless the district promised to not hire anyone whose children attended a segregated private school. However, the school district offered no evidence of a causal link between the threatened boycott and Fyfe’s daughter’s attendance of the private school. In the absence of evidence that Fyfe’s choice of a private-school education for her daughter would substantially and materially interfere with the school district’s operations and effectiveness the court held that Fyfe must prevail as a matter of law. The court’s decisions in Brantleyand Fyfeleave no doubt that public-school employees like Barrow have a protected right to educate their children in private school. The state cannot take an adverse employment action against a public-school employee for exercising this right unless it can prove that the employee’s selection of private school materially and substantially affects the state’s educational mission. In this case, for purposes of this decision, Smith refused to consider Barrow for the position of assistant principal because her children attended private school. Refusal to promote is an adverse employment action. Because Smith failed to present a fact issue that Barrow’s children’s attendance of a private school would negatively impair district operations were Barrow selected for assistant principal, the violation of a constitutional right is shown. Brantleyand Fyfealso confirm that the constitutional right of public-school employees to select a private-school education for their children was clearly established when Smith refused to consider Barrow for the position of assistant principal. Smith argues that Brantleyand Fyfedoes not give fair warning to all reasonable officials in his place that refusing to consider Barrow for the assistant principal position would be unconstitutional. Initially, the court notes that the question whether there was a clearly established right does not turn on the existence of a court decision determining that conduct identical to that which is at issue here is unlawful. Anderson v. Creighton, 483 U.S. 635 (1987). Rather, the pertinent inquiry asks “whether the state of the law [in 1998] gave [Smith] fair warning that [his] alleged treatment of [Barrow] was unconstitutional.” Hope v. Pelzer,122 S. Ct. 2508 (2002). Smith points out that the plaintiff-school employees in Brantleyand Fyfewere in non-administrative positions, whereas Barrow sought the position of assistant principal. He suggests that requiring administrative employees to enroll their children in public schools better serves the district’s interest in public confidence in the public school system than imposing a similar requirement on non-administrative employees does. Smith may be correct that the public tends to be more attuned to the personal educational decisions of the school district’s administrative employees than of its other employees. The court also assumes that the district’s interest in public confidence in its schools is legitimate and important. However, the decisions in Brantley and Fyfe did not rest on a too attenuated nexus between the public confidence in public schools and the personal educational choices of cafeteria managers and secretaries. Instead, those decisions rely on the recognition that 1. public-school employees enjoy a protected right to enroll their children in private school; and 2. a state action that interferes with this protected right is unsustainable unless proved to further a state interest. Brantleyand Fyferequire the state to prove that a state action that interferes with protected educational choices of its public-school employees furthers the state’s interest in the efficient operation of its schools. Nothing about those two decisions suggests that the state can forgo this burden with respect to its more senior employees. The court holds that no reasonable official could conclude that the application of the school district’s public-school patronage policy to Barrow was constitutional. OPINION: Reavley, J.; King, Reavley and Stewart, JJ.

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