Can a Public School Prevent Its Employees from Enrolling Their Own Children in Private School?
December 20, 2007
Sara L. Doyle- Atlanta
Public school districts can take adverse employment actions against their employees for educating a child in private school if the public school district can prove that the employee’s selection of private school materially and substantially affects the public school system’s educational mission. So when does a public school employee’s enrollment of her child in private school materially and substantially affect the public school’s mission? Rarely, says the United States Circuit Court of Appeals for the Fifth Circuit in Barrow v. Greenville Independent School District, which was decided on October 23, 2007.
Karen Barrow, a teacher at the Greenville Independent School district, enrolled her children in a private religious school. When an assistant principal position at a middle school in the district opened, Barrow applied for the job. Her supervisor, Dr. Herman Smith, directed the superintendent for personnel to determine whether Barrow would move her children to public school so that she could be considered for the assistant principal position. Barrow refused to move her children to public school and the district hired another person. Smith later told Barrow that he had not recommended her for the position because her children attended private school.
Barrow filed suit against the school district and her supervisor, Smith, under 42 U.S.C. § 1983, claiming that they violated her constitutional rights. The district court granted summary judgment in favor of both defendants. After the Fifth Circuit overturned the judgment in favor of Smith, the case went to trial against him on multiple claims, including Barrow’s religious rights and parental rights claims. The jury found in favor of Barrow on her parental rights claim only, and awarded her approximately $35,000. The district court then awarded Barrow more than $650,000 in attorneys’ fees, expenses and taxable court costs. Both sides appealed.
On appeal, the Fifth Circuit, having previously determined that Barrow had a constitutionally protected right to educate her children in private school, decided whether the school district could prove that Barrow’s enrollment of her children in private school materially and substantially impeded the operation and effectiveness of its educational program. The court decided the answer was no, because Smith had not met his burden to demonstrate that the children’s enrollment in private school harmed the public school system. To do so, Smith could not rely on “belief alone” of harm or interference; rather, the belief must be supported by objective evidence. Additionally, the court said, the objective evidence must be tied to the specific employee’s conduct. For example, a general threat of a boycott in the event a public school employee enrolled children in a private, segregated school without a specific employee doing so is insufficient objective evidence. Further, testimony that interracial dissension may occur after a public school employee’s son enrolled in a private school is also insufficient.
In Barrow, Smith made no effort to establish objective evidence of harm. Rather, he focused on the level of scrutiny: strict or rational, that the Fifth Circuit should apply to his actions. Because the jury found against Barrow on her religious rights claim, Smith argued the court could not apply strict scrutiny, but rather should review the decision on a rational basis. The Fifth Circuit rejected this argument because without any objective evidence that Barrow’s enrollment of her child in private school harmed the public school district, the level of scrutiny did not matter.
The Fifth Circuit briefly discussed, but left standing, the attorneys’ fee award irrespective of Smith’s offer of judgment. Since the United States Supreme Court denied the petition for writ of certiorari, this ruling will stand.
What does this mean for school districts and supervisors? The Fifth Circuit implied that in other cases, the lack of a religious component may require a rational basis review, which could be favorable to a public school or public school supervision. A public school, however, should avoid making employment decisions based on where an employee’s children attend school unless it has objective evidence of harmful impact resulting to the district directly because of the specific employee’s private school environment.
For more information, email Sara Doyle at sara.doyle@hklaw.com or call toll free, 1-888-688-8500.