Barrow v. Greenville ISD

United States Court of Appeals
Fifth Circuit
F I L E D
February 26, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-11151
KAREN JO BARROW,
Plaintiff-Appellant,
versus
GREENVILLE INDEPENDENT SCHOOL DISTRICT; ET AL,
Defendants,
GREENVILLE INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee.
______________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-913
______________________
Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
The district court held that the superintendent of defendant
Greenville Independent School District did not act as a policymaker
for the district in refusing to recommend a teacher for promotion.
Under Texas law, a school district’s board of trustees can hire or
promote only persons recommended by the superintendent. Yet the
Board has the power to hire and fire the superintendent.
Concluding that under Texas law the Board retains the ultimate
policymaking authority for hiring and promotion, we affirm.

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1 GISD disputes many of these facts, but on a motion for summary judgment
we resolve disputed facts in favor of the non-moving party, here Barrow.
2
I
Karen Jo Barrow was a teacher in the Greenville Independent
School District. When the Assistant Principal position at
Greenville Middle School became available, the future principal of
the middle school encouraged Barrow to apply. Barrow was
interested in and qualified for the position.
At the direction of Dr. Herman Smith, superintendent of GISD,
a senior school official asked Barrow if she would move her
children from a private Christian school to public school so that
Barrow could be considered for the job. Barrow affirmed her
interest in the job but stated she wouldn’t sacrifice her
childrens’ religious education.
After Barrow’s name was placed in the pool of applicants, Dr.
Smith directed Assistant Superintendent for personnel, William
Smith, to see if Barrow would be willing to move her children to
public school. She was not, and another person was hired for the
job. Later, Smith told Barrow and her husband that he didn’t
recommend Karen Jo for the job because her children went to private
school; he also stated that Barrow had “no future” at GISD while
that was the case.1
Barrow sued Smith and GISD in federal district court under §
1983, claiming a denial of constitutional rights, disparate impact
and treatment in violation of Title VII, and several violations of

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2 See Bennett v. City of Slidell, 728 F.2d 762 (5th Cir. 1984).
3 GISD failed to move for summary judgment as to that claim.
3
state law. GISD moved for summary judgment, which the court
granted in part and denied in part. Regarding § 1983, the court
concluded that the GISD Board of Trustees, not Smith, was the
policymaker because Smith only recommended candidates while the
Board had final approval. The district court also held that the
circumstance that the Board rubber-stamped Smith’s recommendations
was legally irrelevant and that a patronage requirement was not
custom or practice establishing GISD policy. It denied summary
judgment, however, finding that Barrow sufficiently alleged that
GISD actually knew of Smith’s behavior, knowledge it concluded was
sufficient to establish GISD policy if proved.2 The court granted
summary judgment for GISD on the Title VII claims, except as to
Barrow’s reasonable accommodation claim,3 concluding that the
failure to promote was due to Barrow’s choice to put her children
in private school, not because of her religion or the religious
nature of the private school she chose, and that Barrow presented
no evidence of disparate impact upon constitutionally protected
conduct. The court denied summary judgment on the state law
claims, except as to the claim for injunctive relief.
The remaining claims were tried to a jury, which found against

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4 Early in the case, the district court granted summary judgment for Smith
after concluding he had qualified immunity. Barrow appealed. GISD filed its
motion for summary judgment, and the court ruled on the motion during Barrow’s
appeal. We reversed the court’s grant to Smith of qualified immunity, see Barrow
v. Greenville Indep. Sch. Dist., 332 F.3d 844 (5th Cir. 2003), hence Smith re-
entered the case and was a defendant at the trial of Barrow’s remaining claims.
5 In a footnote, GISD states that it does not concede a violation of
Barrow’s rights, but it makes no argument to the contrary. Because we affirm
that Smith was not a policymaker, we do not address the argument.
6 See Monnell v. Dep’t of Soc. Servs., 436 U.S. 658, 689 (1978).
7 Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373,
376 (5th Cir. 2002).
4
Smith4 and for GISD, ordering Smith to pay Barrow about $35,000 in
damages and $650,000 in fees and costs. All parties filed post-
judgment motions, which the court denied. Barrow appeals the
court’s grant of summary judgment to GISD, contending that
Superintendent Smith was a policymaker. She asks that we reverse
and render judgment in her favor and against GISD given the jury
finding that Smith violated her rights.5 She also appeals the
summary judgment granted to GISD on the Title VII claim of
disparate impact.
II
A school district has no vicarious liability under § 1983.
Rather, it is liable for the unconstitutional conduct of its
policymakers, including persons to whom it has delegated
policymaking authority in certain areas.6 We review de novo the
district court’s conclusion that Smith was not such a policymaker
here.7
We have examined before the policymaking authority of

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8 7 F.3d 1241 (5th Cir. 1993).
9 Jett never argued that the principal was a policymaker.
10 The Supreme Court left the question to us:
We decline to resolve this issue on the record before us. We think
the Court of Appeals, whose expertise in interpreting Texas law is
greater than our own, is in a better position to determine whether
[the superintendent] possessed final policymaking authority in the
area of employee transfers, and if so whether a new trial is
required to determine the responsibility of the school district for
the actions of Principal Todd in light of this determination"""" We
remand the case to the Court of Appeals for it to determine where
final policymaking authority as to employee transfers lay in light
of the principles enunciated by the plurality opinion in Praprotnik
and outlined above...(emphasis added).
7 F.3d at 1244 (citing Jett v. Dallas ISD, 491 U.S. 701, 738 (1989)).
5
superintendents of independent school districts in Texas. In Jett
v. Dallas ISD,8 a school principal recommended to the
superintendent, who had final approval over the matter under ISD
policy, that a teacher/coach be transferred. The superintendent
approved and ordered the transfer, unaware of the principal’s
discriminatory motive. The Board played no role. The teacher sued
the principal and the ISD, but not the superintendent, arguing that
his involuntary transfer was motivated by race and his exercise of
First Amendment rights. A jury awarded damages against the
principal and the ISD. We reversed the judgment against the ISD
for want of a finding that the superintendent had policymaking
authority for his relevant conduct.9 The Supreme Court granted
certiorari to decide another issue, ultimately remanding for a
determination of whether, under Texas law, the superintendent had
“final policymaking authority in the area of employee transfers.”10
The panel determined that, under Texas law, school boards make

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11 TEX. EDUC. CODE § 23.26 (repealed and reenacted as amended in 1999 as §
11.051) (emphasis added).
12 The court also stated that “[n]othing in the Texas Education Code
purports to give the Superintendent any policymaking authority or power to make
rules or regulations, whether as to...transfers or otherwise” (emphasis added).
Because the statutory question here is different from that in Jett, and because
the situation in Jett did not require a ruling on the policymaking authority of
superintendents in all instances, this statement does not dictate the result
here.
13 TEX. EDUC. CODE § 11.163(a)-(b).
6
policy and superintendents administer. It pointed to Texas law
giving the school board “exclusive authority to manage and govern
the public free schools of the district,”11 concluding that the
superintendent’s power to decide transfers was entirely delegated
by the board, hence the board had authority to modify or eliminate
that power, rendering it the policymaker.12
Here, however, a Texas statute directs ISDs to adopt a
personnel policy giving superintendents “sole authority to make
recommendations to the board regarding the selection of all
personnel, except that the board may delegate final authority for
those decisions to the superintendent....If the board rejects the
superintendent’s recommendation, the superintendent shall make
alternative recommendations until the board accepts a
recommendation.”13 Hence the superintendent’s power to recommend
comes from the legislature, not from the board of trustees,
although the board retains the power to accept or reject those
recommendations and to fire the superintendent. Barrow argues that
this structure gives policymaking authority over personnel

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14 Barrow makes three other, meritless arguments which are conflated with
her primary, strong argument. First, she argues that GISD’s rubber-stamping of
Smith’s recommendations renders him the de facto policymaker. The district court
properly rejected this argument because the question is whether GISD had the
authority to guide Smith’s discretion, not whether it actually did so. See Jett,
7 F.3d at 1247 n.10 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 129
(1988)). Second, she argues that GISD has a “custom and usage” of requiring
teachers to put their children in public school. The district court rejected
this argument for lack of evidence, and Barrow didn’t appeal the ruling and does
not now explain what sufficient evidence supports the claim. Third, Barrow
briefly asserts that GISD is a policymaker for failing, to this day, to adopt a
policy forbidding the superintendent from using the unlawful patronage practice.
This turns Monnell on its head. Although there is the argument that the absence
of a policy may be actionable where the absence was intended by the municipality
to avoid liability, see Cornfield v. Consol. High Sch. Dist., 991 F.2d 1316, 1326
(7th Cir. 1993), there’s no evidence of such intent here.
15 TEX. EDUC. CODE § 11.202©).
7
decisions to both the Board and Smith because both must agree on
candidates - and both have effective veto power over the other’s
candidates.14
Standing alone, Barrow’s argument has purchase because the
superintendent has “sole authority” to recommend. But it cannot
prevail against the backdrop of Texas’s legislative scheme, which
generally makes the board the policymaker and the superintendent
the head administrator. Texas’s system of bifurcating
recommendation and approval authority over hiring and promotion
neither gives the superintendent policymaking authority nor
abrogates the board’s general policymaking authority. Accenting
this point in the matter of selecting school principals, the Texas
legislature insists that the “board of trustees...shall adopt a
policy for the selection of a campus principal that includes
qualifications required for that position.”15 By its structure it
is evident that the bifurcated system was calculated to insulate

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16 The Board had informally discussed and rejected a patronage policy
during a public budget meeting. Moreover, the Board had a general anti-
discrimination policy which mirrored broad constitutional requirements (e.g., no
discrimination based on race, religion, or national origin), although it didn’t
explicitly mention the right at issue here.
8
routine personnel decisions from direct meddling by elected board
members, channeling board influence in such matters into the
board’s decision to hire or fire a superintendent and into its
power to set standards for positions. The legislature accomplished
this balance of its objectives by insisting that the board hire
only persons recommended by a superintendent, whom it hires and
fires. So fashioned, the legislation did not erode the
policymaking authority of the board; it reinforced it, albeit with
procedural traces for its exercise.
The statutory structure avoids the awkward scene of a
superintendent advancing an unconstitutional personnel policy that
the board has explicitly disavowed, leaving the board to protest
liability for a policy that it has denounced. We need not search
for evidence of such a risk of dueling, binding policies. There is
a strong suggestion here that, to the extent there was a Board
policy, it opposed patronage.16 That escape from such a scene is
offered by the power of the board to fire the superintendent
highlights that it is the board, not the superintendent, which has
policymaking authority.
This statutory structure is cemented by caselaw. As Jett
emphasized, an official whose discretionary decisions on a

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17 This court in Beattie v. Madison County School District, 254 F.3d 595,
603 (5th Cir. 2001), characterized Jett as holding that “a superintendent’s
transfer of a teacher to another position might be a final policy decision if
that action was unreviewable, even if the superintendent did not have complete
control over the hiring and firing of district personnel.” “Might be” does not
mean “is,” and a person is not a policymaker when he makes a decision simply
because that decision is unreviewable.
18 See Jett, 7 F.3d at 1247.
19 957 F.2d 397 (7th Cir. 1992).
9
particular matter are final and unreviewable,17 meaning they can’t
be overturned, is constrained if another entity has ultimate power
to guide that discretion, at least prescriptively, whether or not
that power is exercised.18 In Auriemma v. Rice,19 cited by Jett, the
Seventh Circuit concluded that the Chicago Police Chief, who by
city ordinance had unreviewable discretion to make personnel
decisions, would not have set city policy in allegedly
discriminating by race. Rather, the Chief would have violated city
policy, embodied in another city council ordinance generally
forbidding racial discrimination in hiring.
We AFFIRM the district court’s grant of summary judgment to
GISD on Barrow’s § 1983 claim.
III
The district court granted summary judgment to GISD on
Barrow’s claim that the patronage policy operated more harshly on
people patronizing private school for religious belief than people
opting for private schooling for other reasons. The court
explained:

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20 She also argues that GISD did not, in its motion for summary judgment,
argue anything about lack of evidence of disparate impact. That is wrong; in any
event, we can affirm the district court’s independent conclusion based on the
record.
10
To establish a prima facie case of disparate impact,
Barrow must show that facially neutral employment
standards operate more harshly on one group than another.
This initial burden includes proof of a specific practice
or set of practices resulting in a significant disparity
between the groups. Statistical disparities between the
relevant groups are not sufficient. A plaintiff must
offer evidence ‘isolating and identifying the specific
employment practices that are allegedly responsible for
any observed statistical disparities.’
Barrow has not furnished evidence of any observed
statistical disparities caused by GISD’s [alleged
practice]. At most, she has adduced evidence that this
requirement was applied to her twice, and to Pope once.
In response, GISD has introduced evidence that while
employed by GISD, Assistant Superintendent Mike
Cardwell...educated his children for twelve years in [the
same school as Barrow’s children], and during that time
was promoted to Assistant Superintendent....Taken as a
whole, the evidence on which Barrow relies does not
satisfy her initial burden of proving that GISD’s
employment practices have resulted in a significant
disparity between Christian and non-Christians, or
religious believers and non-believers.
The record evidence, read in the light most favorable to
Barrow, supports the district court’s conclusion that Smith did not
recommend Barrow because her children were not attending the public
schools, not because her children were attending a religious
school. There is no probative evidence that Smith’s decision had
any impact upon any First Amendment-protected freedom.20
We AFFIRM the district court’s grant of summary judgment to
GISD on the Title VII disparate impact claim.
AFFIRMED.

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