Terra Extraneus

Karen Barrows, a public school teacher, sent her children to a private Christian school. When she applied for the job of Assistant Principal, at the suggestion of the Superintendent, her boss, the Superintendent subverted her application because her children were in still in a private school. The Superintendent denied the reason was religious, but there seemed to be little doubt that the Superintendent made it clear that Ms. Barrows had no future in the school district as long as her children were enrolled in a private school.

The United States Court of Appeals for the 5th Circuit held, in an opinion you can find here, that Barrows could not state a §1983 claim for violation of her property rights in her governmental employment because an essential element of the claim, that the Superintendent was a policymaker and that his policy violated her rights, was not legally possible. The court held that the Superintendent was not a policymaker because under the laws of Texas, the policy making function was vested solely in the school board and the Superintendent was merely an agent of the Board.

There is absolutely no doubt the Circuit Court was right, the Superintendent was not the policymaker under Texas law. However, the Circuit Court was absolutely wrong. Clearly, under the facts both the trial court and the Circuit Court should have considered questions of fact for a trial, the Superintendent had usurped some policymaking authority, implemented it ultra vires, and in violation of the property rights of Ms. Barrows, added a job requirement that precluded her application. Also, the teacher, Ms. Barrows wanted her children to have a religious education. She told the Superintendent that was her motive. Nevertheless, the Superintendent imposed his policy anyway and the school board turned a blind eye.

Also, the Circuit Court was being intentionally obtuse. It is the rare school board that controls the Superintendent. That the school board can legally rein in the Superintendent is technically true but usually irrelevant. Ignoring reality, such as who was actually setting policy and implementing policy, harms the credibility of the Courts and in this case, denied the right of a school teacher to make a lawful parental choice about schooling her children without sabotaging her own career.