MT. HEALTHY CITY BOARD OF ED. v. DOYLE

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Argument of Philip S. Olinger

Chief Justice Warren E. Burger: We will hear arguments next in 75-1278, Mt. Healthy City School District against Doyle.

Mr. Olinger, I think you may proceed whenever you are ready.

Mr. Philip S. Olinger: Mr. Chief Justice, and May it please the Court.

The Mt. Healthy School District is a small school district on the outskirts of Cincinnati.

It has approximately, 7600 students and approximately 325 teachers.

In 1966, the Board of Education employed Fred Doyle, the respondent in this case.

He was employed on three one-year contracts and then he was given a two-year contract.

All of these contracts were nontenure.

In 1971, in the spring of that year, the Board, as was its usual custom, reviewed the contracts of the nontenured teachers, and determined that year, that ten of them should not be renewed.

Mr. Doyle happened to be one of those teachers whose contract was not renewed.

He requested a reason following his notice that he was not renewed and the superintendent sent him a letter and in that letter the superintendent stated, that “he was not renewed because it was felt he lacked tact in handling professional matters” and the superintendent went on to cite two examples.

One was a telephone call that Mr. Doyle had made to a local disc jockey at a radio station to criticize a dress code that had been sent around to the teachers and the second example cited by the superintendent was an obscene gesture that Mr. Doyle had made to some female students in the school.

After Mr. Doyle was aware that he was not going to be renewed in Mt. Healthy, he sought employment elsewhere.

In fact in June of 1971, obtained a job at the Miami Trace Local School District, which is 50 miles or so North of Mt. Healthy.

One month later in July, he filed this suit along with two other school teachers and he filed the suit against the five board members in their individual and official capacity, he filed it against the Board itself as a political entity of a state, and he filed it against the superintendent.

Unknown Speaker: Let me ask you question there if I may Mr. Olinger and I will try to be parochial, but I am used to the Arizona Organization of School, first let me give you that and ask you if it is like Ohio.

Where I practice in Arizona, there was a municipal corporation which was called a School District and it was very much analogous to counties or cities and things like that.

Then the Board that administered that district was called the School Board it was not a sueable entity in itself, it was just a collection of individuals.

Now what is the situation in Ohio?

Mr. Philip S. Olinger: In Ohio, Your Honor, there are different types of school districts, but the particular district we are discussing here is a, what is known as a city school district and basically it encompasses the district or the same boundary lines as the municipality of Mt. Healthy.

Now, however, in Ohio school districts that are city school districts do not have to be confined to that precise municipal boundary, and I think you will find for example with the Mt. Healthy School District it encompassed a larger amount of territory than the city itself, part of a township, and the same would be true for example with the Board of Education for the City of Cincinnati which encompasses the city of Cincinnati.

Unknown Speaker: What is the difference between the school district and the Board of Education?

Mr. Philip S. Olinger: Oh! Alright, I am not sure I know there is a difference in Ohio.

I think for all intents and purposes they have been treated as synonymous.

Unknown Speaker: And both are regarded as municipal corporations?

Mr. Philip S. Olinger: No, I have never heard a school district referred to as a municipal corporation.

It has always been refereed to as a school district.

Unknown Speaker: Or a Board of Education?

Mr. Philip S. Olinger: Or a Board of Education, either one.

Unknown Speaker: The Cincinnati Board of Education would be the defendant in the suit against the school district would it not, probably?

Mr. Philip S. Olinger: Yes, that is correct Your Honor.

Unknown Speaker: Well, supposing I have a contract claim against the school district and name the proper parties, out of whose treasury does that judgment pay?

Mr. Philip S. Olinger: That judgment would be paid out of general fund.

Unknown Speaker: Of what?

Mr. Philip S. Olinger: Of the school district or the Board of Education whichever prefer.

As I understand it in Ohio, Your Honor, a school district is a…

Unknown Speaker: Is the geographic.

Mr. Philip S. Olinger: Is the geographic area.

For example in this complaint, the respondent here in the initial lawsuit sued the Mt. Healthy City School District Board of Education.

Now in the statute, it says, “that a Board of Education shall be a body politic, capable of suing and being sued.”

Unknown Speaker: So they are really just almost synonymous for purposes of --

Mr. Philip S. Olinger: As I understand it, that is correct Your Honor.

Unknown Speaker: Does the constitution of Ohio provide for school boards or school boards of education as I think you call them?

Mr. Philip S. Olinger: The constitution of Ohio provides that there shall be a school system provided for, in Ohio.

I cannot recall the exact terms, Your Honor, and I do not…

Unknown Speaker: School Board members in Virginia are constitutional officers, is that true in Ohio?

Mr. Philip S. Olinger: Your Honor, I do not believe they are.

Unknown Speaker: I do not want to detain you on the point, I was just interested.

Your school boards do have authority to levy taxes, or do they?

Mr. Philip S. Olinger: In Ohio, Your Honor, there is what is known in Ohio is a ten-mill limitation and that ten-mill limitation must be shared.

In this, let us say in this particular case between the municipality and that would be the City of Mt. Healthy shared with the County of Hamilton in which the city resides and also must then be shared with the Board of Education so that is ten-mill.

Now, those ten-mills can be levied without the vote of the people, but once you reach that ten-mill limitation than the only way you can then get a tax levy is by submitting the matter to the public and I might say that in Mt. Healthy, in the past six years we have had five tax levies they have all failed, and most recent one was yesterday and we do not know the result of that yet.

Unknown Speaker: Who levies, the county, the city?

Mr. Philip S. Olinger: No, the school board itself Your Honor.

School board itself adapts a resolution to put a tax levy on the ballot and if it is passed, we can then have the…

Unknown Speaker: That is, the voters are all the people in the school district?

Mr. Philip S. Olinger: In the school district, that is correct Your Honor.

Unknown Speaker: But could you defer from the county or the city or anything else?

Mr. Philip S. Olinger: It could be.

Unknown Speaker: Boundary wise.

Mr. Philip S. Olinger: Yes, boundary wise only the voters who are in the school district may vote on that particular issue.

Unknown Speaker: And how about bond issues?

Mr. Philip S. Olinger: Same thing is true.

Unknown Speaker: Is there any authority to issue bonds up to limitation analogous to the ten-mill limitation without the vote of the people?

Mr. Philip S. Olinger: Your Honor, I am not sure, but I think that on bonds you have to submit all bond issues to the general elector.

Unknown Speaker: I do not want to detain you on this particular subject, but while we are on it, does the record show or do you know as a matter of public record, what percentage of the cost of operating the public schools in Ohio is borne by the state treasury?

In Rodriquez that was before this Court a few years ago I think they have not showed the example that some 45% came from state funds, this maybe relevant to the Eleventh Amendment issue in your case by a sequence.

Mr. Philip S. Olinger: Your Honor, there was no testimony present on that issue in the trial.

I do have the figures and they are…

Unknown Speaker: Are they matters of public record.

Mr. Philip S. Olinger: Yes.

Unknown Speaker: Well, what are they?

Mr. Philip S. Olinger: In the 1971-72 school year the state of Ohio contributed 48%.

In 1972-73 the state contributed 51%, In 1973-74 they contributed 50%, In 74-75 they contributed 53% and in 75-76 it also contributed 53%.

Unknown Speaker: That is an equalizing fund.

Mr. Philip S. Olinger: Yes under the equal yield formula.

I might say one another thing, Your Honor, these percentages of state contribution would have been higher except that in Ohio, the State of Ohio was finding itself in a very financially embarrassed position and has reduced the amount of equal yield of all the School Districts in Ohio.

After conclusion of the trial, the District Court dismissed the board members and the superintendent and found that the board was guilty and should pay to Mr. Doyle something over $5000 in wages, should pay something over $6000 attorney fees, assessed costs against the board and ordered Mr. Doyle to be reinstated in the Mt. Healthy School System on a tenured contract.

On appeal, the only thing that Sixth Circuit Court of Appeals did was to reverse the District Court in so for as attorney fees on the basis of the Alyeska versus Wilderness Society holding that attorney fees are basically cost.

The evidence, I think establishes beyond doubt that Mr. Doyle’s contract was not be renewed because the board members felt that he simply lack the tact or for an use of another word, maturity to be given a tenured contract in the Board of Education.

The court in its opinion cites five examples, if you will, of Mr. Doyle’s immaturity and as one board member said over the five years, there appeared to be no improvement in his maturity or lack of tact problem.

Now, in fact, I think perhaps the most important thing that I can find in the judge’s opinion was when he states, “in fact", as this Court sees that and finds both the board and the superintendent basically had ample reason not to grant Mr. Doyle a tenured contract without regard to the First Amendment problem.

The Court also pointed out that four board members and the superintendent stated without any denial or rebuttal that they did not determine not to renew Mr. Doyle’s contract because of a free speech problem.

Unknown Speaker: Mr. Olinger, the first question presented in your petition for Certiorari is whether the District Court had jurisdiction of this action under Section 1331, are you planning to discuss this in your…

Mr. Philip S. Olinger: Yes I am Your Honor, in fact I am…

Unknown Speaker: I do not mean to order your argument for you, I just wanted to know if you did plan that.

Mr. Philip S. Olinger: Oh! Yes I did, Your Honor.

I may not have very much time, but I do want to discuss every point that I have brought up.

The first point that I want to, the first proposition of law that I would like to present to the Court is that I do not really have any question if a Court wishes to accept the substantiality doctrine for the problem that is here today.

That is, we have a situation, where obviously there were a number of permissible reasons for the board could have not — could have used for not granting tenure and then we have this one non-permissible reason.

There is some argument, alright, the board did not consider that, but I am going to treat the matter as though the board and which they did, they were certainly well aware of the WSAI phone call.

My position is that I think as Judge Hogan who I an very fond of, looked at the case, he saw that the board had valid reasons not to renew the contract, but he saw the telephone call to WSAI and he felt under Pickering and as he cites ski him that he had no choice, but since there was a First Amendment problem in there that he had to rule against the board.

Unknown Speaker: I suppose Mr. Doyle had no legal advice when he stated the reasons, did he?

Mr. Philip S. Olinger: You mean the superintendent, Your Honor?

Unknown Speaker: Yes, superintendent.

Mr. Philip S. Olinger: I did not represent the board at that time and they had another attorney but he died and I do not know whether he was alive or not at that particular time.

I cannot advise this Court on that particular problem, Your Honor.

There is one other thought I would like to advance on that first theory and that is maybe it is similar to a reviewing court, who will not set aside a trial court, even if the trial court decides a case for the wrong reasons but comes to the right result and then my final theory is that I think under what I am starting to understand is the doctrine of federalism or commenting between the federal system and the state system that the matter of education is primarily a state concern, and therefore, should be left to the state to handle its own affairs.

Now, my second argument of course involves jurisdiction.

Unknown Speaker: And really logically that is your first argument?

Mr. Philip S. Olinger: Yes, I am sorry.

Unknown Speaker: If you are right about that we never get to that matter, is that correct?

Mr. Philip S. Olinger: Yeah, that is correct Your Honor.

The first argument involves jurisdiction.

Mr. Doyle brought his suit under course 1983 which then brings into play 1343 and 1341.

Unknown Speaker: 1331.

Mr. Philip S. Olinger: 1331.

In the first proposition, in my brief, I say that under Monroe versus Pape, City of Kenosha versus Bruno, Moor versus County of Alameda and this summer, I believe, the case of Aldinger v. Howard that this Court has consistently held that a municipality and a county are not a person under 1983 and consequently the federal courts have no jurisdiction either for legal, that is damages or equitable relief.

I am asking this Court today to extend that doctrine to boards of education.

Chief Justice Warren E. Burger: We will resume there at 1 o’clock, thank you very much.

You may continue Mr. Olinger.

Mr. Philip S. Olinger: If I recall correctly, we were discussing the 1983 issue in my brief and I am not going to spend any more time on it.

I believe that there is a valid reason to take the position that boards of education are entitled to the same immunity that has been granted to both municipalities and counties in this particular area.

I would like to move on now to the 1331 argument.

Unknown Speaker: Mr. Olinger, as you get into that, may I ask you this.

Do you conceive that if a bona fide claim of $10,000 or more as presented by this case that there is federal jurisdiction against this defendant?

Mr. Philip S. Olinger: No.

Unknown Speaker: Under 1331?

Mr. Philip S. Olinger: No, Your Honor.

I think …

Unknown Speaker: It was not clear to me.

It is a little more clear, I think from your supplemental brief.

Mr. Philip S. Olinger: Alright, when the brief was first prepared, when I prepared the petition for the Writ of Certiorari.

I was under the impression that that was the only issue left, with 1331 and the $10,000 amount.

The respondent’s brief brought up the subject in his brief and later after further research and looking at Bivens versus the Six Unknown Federal Narcotics Agents and Aldinger versus Howard, I have to reverse myself and saying no, I do not think that resolves the issue.

Unknown Speaker: That even if there is 1331 federal jurisdiction, nonetheless your client is not a person under 1983?

Mr. Philip S. Olinger: That is correct.

Unknown Speaker: Is that your position?

Mr. Philip S. Olinger: Yes, Your Honor.

Now, respondent says, well, this court has sua sponte jurisdiction, on its own sua sponte may raise a jurisdictional question.

The respondent takes the possession that that is not a jurisdictional question and that is the only point I disagree with.

I did not bring this subject up in my original brief.

I apologize for not being astute enough to recognize that as an issue at that particular time, but anyway, going to 1331 and the $10,000 issue.

At the time that Mr. Doyle filed this lawsuit, he of course had obtained employment elsewhere and just for argument purposes that salary was approximately $2,000 less than the salary that he would have received at Mt. Healthy.

If I understand what the federal courts are saying is that when an employment question is involved, it is the salary of that particular job that establishes the $10,000 jurisdiction.

Well, I am not sure exactly what the court means by that, but if you are taking one year salary, the salary of Mt. Healthy would have been a little bit more than $10,000 then under Columbia Insurance Company versus Wheelwright I suppose that this Court would say, well, that there was federal jurisdiction on the $10,000 issue, but the point I am trying to make is that if that is going to be the basis, if at the time he files the lawsuit, he has got another position paying out $8,000.

The only distinction is really the $2,000 between the two salaries.

Unknown Speaker: But Mr. Olinger is it not that true that under Ohio statutory law, if he had been rehired, he would then have had tenure for the rest of his life subject to being terminated for cause.

Mr. Philip S. Olinger: That is correct.

Unknown Speaker: So, that is the $10,000 a year for the rest of his working life, is it not?

Mr. Philip S. Olinger: That is correct.

Unknown Speaker: Discounted and then mitigated by any other employment he might have had, so that certainly on its face looks like more than $10,000, does it not?

Mr. Philip S. Olinger: Well, now if you want to say he had $10,000 for the rest of his life then I suppose you get into the question, well, how long is the employee entitled to claim this $10,000?

Is it $10,000 times the mortality rate for the rest of his life?

In other words…

Unknown Speaker: You will need one $10,000.

Mr. Philip S. Olinger: Well, I know.

Unknown Speaker: You need one $10,000 in one sentence.

Mr. Philip S. Olinger: I agree, Your Honor.

Unknown Speaker: That is all it means.

Mr. Philip S. Olinger: Yes I agree, but what I am pointing out is that if we are going to establish jurisdiction on the $10,000 amount on that basis, then we got to think in terms of damages.

Now, if we think in terms of damages, you are going to have to multiply $10,000 and Mr. Doyle, I say, was 30 years of age, let us say if mortality rate say he is going to live till 70, we have got 40 more years in there and the Federal District Court could assess a $400,000 judgment against the Mt. Healthy Board of Education.

Unknown Speaker: That is a kind of a computation that a jury is asked to make in every negligence case, is it not?

Mr. Philip S. Olinger: Yes Your Honor, that is basically true.

There is no question about that.

I guess the point I am trying to say, Your Honor, is that if you want to take $10,000 and multiply it over his life expectancy then I think that the employer should be entitled to take $8,000 and multiply it over his life expectancy.

Unknown Speaker: But that is still, the total still comes out to (Voice Overlap).

Mr. Philip S. Olinger: Alright, except there is one problem there Your Honor, and that is in educational, in computing salaries, of course, teachers are on steps etcetera and they reach a maximum point at some level.

Now, we do not know what the Miami Trace maximum level is but it could be greater than Mt. Healthy.

Unknown Speaker: Of course, ordinarily for ascertaining the substantiality of the jurisdictional model, you do not try the damages issue and argue all of the pros and cons, it is just kind of the idea, is it a coverable claim, is it not?

Unknown Speaker: Is it a bona fide coverable claim, that is the general….

Unknown Speaker: There are just some trumped off really to get you into Federal Court.

Mr. Philip S. Olinger: Alright but, what I am saying is that is if it is just a coverable claim then I wonder why $10,000 is even in the statute because…

Unknown Speaker: It is a little late to take it out.

Unknown Speaker: It used to be 3,000.

Mr. Philip S. Olinger: Right, it used to be 3,000, Your Honor.

Unknown Speaker: It may not have been a very effective limitation but certainly that is the way this Court and another Courts have read as being just is it in good faith more or less.

Unknown Speaker: It is effective when you are talking about a liquidated claim or on a contract action or something like that.

Mr. Philip S. Olinger: Yeah, it means something.

Here, I really have problems trying to tell the Court what I think is the proper way to handle the $10,000 jurisdictional question.

The only point I am trying to say is that when Mr. Doyle initially filed his lawsuit, he honestly knew that the only difference between the job that he was ever going to claim trace in the job at Mt. Healthy, there was a difference of $2,000.

Now, if we are talking about -- that is what we are talking about.

Unknown Speaker: Assume, he is talking about he want to keep the job that he has and I think he is talking about not being put out of that job.

I think it is a whole lot than just dissents.

Mr. Philip S. Olinger: Okay, Your Honor, except that he did not -- at the time that he filed suit, he did not have a right to that job.

This is not a case whether we have a tenured teacher, Your Honor.

I guess that is the point I am trying to make.

Unknown Speaker: But if he is right on the merits, and therefore, the allegations of his complaint are sufficient, then if rehired, his claim is that he should have been rehired then he would have had tenure under Ohio law, would he not?

Mr. Philip S. Olinger: Yes, he would; there is no question about that.

Unknown Speaker: When will he get tenure the new --

Mr. Philip S. Olinger: He already has tenure, Your Honor.

Tenure for Mr. Doyle would have occurred after three years.

Unknown Speaker: In the new job, Miami Trace job.

Mr. Philip S. Olinger: Right.

Unknown Speaker: After three?

Mr. Philip S. Olinger: Yes sir.

I am sorry it is either three, two or three years, but he has got tenure now at Miami Trace.

He has tenure there.

Unknown Speaker: Now, he has no problem there, according to you.

Mr. Philip S. Olinger: You are right; I am saying not only does he not have….

Unknown Speaker: He does not have any problems there, that is your position?

Mr. Philip S. Olinger: That is correct, -- yes, Your Honor.

Unknown Speaker: Because your more basic claim, jurisdictional claim is now as I understand it, that even assuming that the amount in controversy exceeds $!0,000 exclusive of interests and costs and that therefore is federal jurisdiction under Section 1331, nonetheless your client is immune by reason of 1983.

Mr. Philip S. Olinger: That is correct Your Honor.

Unknown Speaker: But let us assume for the moment that your client is immune under 1983, a suggestion has made by our opponents that a course of action may lie through the Fourteenth Amendment to enforce First Amendment rights without regard to 1983.

Do you respond to that?

Mr. Philip S. Olinger: Well, I am going to try, Your Honor.

I am not going to say I understand the theory completely, but…

Unknown Speaker: You have a lot of complaint there.

Mr. Philip S. Olinger: I am going to give it a try, and let me start off by saying that in 1912, there was a constitutional convention in Ohio, and at that convention, they amended the constitution and the constitution after the amendment read suits maybe brought against the state in such courts and in such manner as maybe provided by law.

After that constitutional amendment was passed, the issue immediately arouse whether or not the State of Ohio had abolished its sovereign immunity.

After numerous cases, particularly involving municipalities, the Supreme Court of Ohio said, well, based on Hans versus Louisiana, based on cases in other jurisdictions, we do not think that that provision of the constitution is self executed that there must be a legislation enacted to carry out that permission that has been granted by that constitutional amendment.

Unknown Speaker: And that legislation could or might not waive sovereign immunity, is that not so?

Mr. Philip S. Olinger: That is correct, Your Honor.

Now, in the case of Aldrich versus the City of Youngstown, which was decided in 1922, as I said, it became clear that if the sovereign immunity of State of Ohio was to be abolished, it had to be abolished by specific provision of the legislature.

Now, trying to apply that theory to the Fourteenth Amendment theory and the First Amendment theory, first of all if I understand the problem, under 1983, it provides a remedy and a method to carry out the civil rights provisions.

Now, the First Amendment, as I understand it, only provides that there shall be no violation of the right to freedom of speech, but it does not provide a remedy etcetera.

Now, under the Fourteenth Amendment, if I understand correctly, and this is where I maybe wrong, the Fourteenth Amendment, under Section 5, provides that the Fourteenth Amendment will be implemented or required to be implemented by a legislation passed by Congress.

Now, the problem I have is, I presume that that language in this Fourteenth Amendment has to apply to the First Amendment because if I understand correctly, the first state amendments apply to the states through the Fourteenth Amendment and that therefore to carry out the First Amendment, there also has to be some sort of a congressional legislation in order to carry out the provisions of the First Amendment.

Unknown Speaker: And that 1983 is such legislation and it imposed limits i.e. that your client is not a person?

Mr. Philip S. Olinger: That is correct Your Honor.

In other words, the Congress did speak to the subject in the 1983 area but because of the Sherman Amendment was not adopted, the interpretation in this course has been that it does not then apply to political entities of the state.

Basically that concludes my argument and I thank you very much.

Chief Justice Warren E. Burger: Thank you, Mr. Olinger.

Mr. Gottesman.

Argument of Michael H. Gottesman

Mr. Michael H. Gottesman: Mr. Chief Justice, May it please the Court.

It has been said that the jurisdictional issues properly come first and I will address them first, but in doing so I do not want to leave the impression that the First Amendment claim is to be decided on the fact as they have been described today by my colleague, Mr. Olinger.

We think the facts are actually much more helpful to us and I hope I am going to have time to get to the First Amendment issue and talk about this first.

But first jurisdiction, the complaint allege jurisdiction on two separate statutory grounds predicated on two separate causes of action.

First of all it alleged that the defendant’s conduct had violated Section 1983 and the jurisdictional statute that was then available was 1343.

Separately, it alleged that there was a cause of action directly under the Fourteenth Amendment not based on 1983, but brought directly under the Fourteenth Amendment, for which 1331 provided jurisdiction.

Now, let me…

Unknown Speaker: 1331 would also provide a jurisdiction in a 1983 action if more than $10,000 were involved exclusive of interests and costs, is it not correct?

Mr. Michael H. Gottesman: Well, I suppose it would but of course, the plaintiff did not need 1331.

Unknown Speaker: But it would have been perfectly adequate jurisdictional statute upon which to rely.

Mr. Michael H. Gottesman: Yes, it would if in fact he could sue the school district under 1983 that is to say it would only provided a jurisdictional basis for a 1983 action if he had a cause of action on the 1983 and that turns on whether the school board is a person.

But as we will see in a moment, our main point will be that the person’s limitation of 1983 is not a limitation on the course of action directly under the Fourteenth Amendment.

Unknown Speaker: Where do you get this cause of action directly in the Fourteenth Amendment?

Mr. Michael H. Gottesman: Well, if I may just refer that for one moment, it is going to be the central focus of my discussion here, but I do want to just say one thing first because if I do not say it first, I am going to lose it and that is that in so far as this is a suit for reinstatement, let us forget the back pay for a moment.

There was clearly jurisdiction under 1983 and 1343 because this was a suit against the school board officials in their official capacities as well as against the school board.

And in so far, as it is to suit against the school board officials, the court had authority, they are persons within the meaning of 1983.

The court had authority to direct them to take the step of reinstating the plaintiff.

The jurisdictional predicate here is precisely the same as this Court has always used in all of the school desegregation cases.

Unknown Speaker: You say that is like Ex parte Young basis, would you?

Mr. Michael H. Gottesman: Well, except they were not concerned about the Eleventh Amendment theory, but it is the same kind of thing.

You get relief which the school board as an entity must in fact provide by directing the officers of the school board to provide it.

And indeed I think the moment start will make clear that all of the school desegregation cases, which result in orders directing school boards to take certain actions, are 1983 actions in which the award is obtained, where the relief is obtained by directing it to the school officials.

They are directed to take certain actions.

Justice John Paul Stevens: But Mr. Gottesman, here the trial court dismissed the claim against the individual defendants and you did not appeal from that?

Mr. Michael H. Gottesman: Well, we have a very peculiar problem, Justice Stevens, and in a sense we are going to have to ask for the Court’s indulgence on it.

No jurisdictional issue was raised in the District Court.

It was never asserted by the defendants that there was a lack of jurisdiction here.

As a result, when the District Court found 1331 jurisdiction over the school board and provided all of the relief that was sought, while technically the plaintiffs should have a cross appeal from the court’s failure to keep the school board individuals in and undoubtedly would have done so if there had been a jurisdictional issue raised in the District Court, they were lulled into not cross appealing by their belief that there were no jurisdictional issues confronting them down the road in this case.

Unknown Speaker: Is that a safe assumption ever as a jurisdiction remain in a case?

Mr. Michael H. Gottesman: Well, of course it does, Your Honor, and that is why I say we have to beg the Court’s indulgence if we lose on 1331.

Unknown Speaker: Mr. Gottesman, did you cite 1331 on your complaint?

Mr. Michael H. Gottesman: Yes, it was actually cited as 1931 but it was a typographical error and the District Court…

Unknown Speaker: That is what I want to know because that is the only reference I find as 1931.

Mr. Michael H. Gottesman: Yes, it was understood by the District Court as 1331.

That is our only barrier we are in (Inaudible).

But we would on the point that Justice Stevens raised, there have been a number of Court of Appeals decisions recently because the jurisdictional problems in this area are so complex that if held that a plaintiff if he appears to have a valid jurisdictional basis, even if he did not pleaded in the complaint, is entitled to have a remand so that he can in fact do so and so that his relief with the violation of his constitutional rights is not forever denied him because of the complexities of charting one’s way through this jurisdictional thicket.

Unknown Speaker: Well, is that a pleading point basically Mr. Gottesman that you do not have to plead jurisdiction, if it is apparent from the facts?

Mr. Michael H. Gottesman: It is not as broad as that.

What the courts have essentially done is created a special -- it is not pleading.

They say you brought the suit and you have asserted the wrong jurisdictional provision.

You could technically be barred forever, but given that this is a civil rights action, given that we found the violation of your constitutional rights, given that we believe there is an adequate jurisdictional basis upon which this action could have been predicated, we are going to remand and allow you to amend the complaint.

They are not saying the complaint in its present form suffices to actually raise this jurisdictional point even though you have not recited this action by its terms.

Unknown Speaker: That is not the quite the same thing I was saying that parties dismissed and is against whom the dismissal has become final can be reinstated after that point.

Mr. Michael H. Gottesman: Well, it is not quite the same.

There have been two Fifth Circuit decisions where they have allowed a remand to amend the complaint to bring in additional parties in a context where only the entity was sued and the court concluded that the suit should have been brought against the individual.

Unknown Speaker: There you do not have the res judicata problem.

Mr. Michael H. Gottesman: Well, that is right.

What we do not have one here either if this Court allows the remand because we are still in the same cause of action.

Unknown Speaker: But Mr. Gottesman, if we allow the remand, you really would not have to amend your complaint.

The complaint is perfectly alright.

Mr. Michael H. Gottesman: The complaint is perfect.

The problem is that…

Unknown Speaker: What we would have to be doing is remanding to let you take an appeal you did not take.

Mr. Michael H. Gottesman: In essence and that is why I say we beg the Court’s indulgence on it because obviously we do not have a right to that.

But let me go on because there are obviously more basis…

Unknown Speaker: Why petitioner (Inaudible).

Mr. Michael H. Gottesman: I suppose we are in the position that we cannot proceed to seek reinstatement under 1983 against the school officials in their official capacities for want of an appeal having been taken.

I think that is where we are at and assuming we are right on the merits, the teacher, who was in fact right, who brought this lawsuit, who has secured complete relief in the District Court and who presumptively for the moment is going to have it on the merits affirmed if only the Court would recognize the jurisdictional basis, we will go with our relief on reinstatement.

But let me go on because I think we avoid the problem if we are right that there is jurisdiction against the school board.

Now, neither the District Court nor the Court of Appeals has decided either of the 1983 person questions which would have to be decided.

If the Court were going to say that relief cannot be obtained under 1983 and those two questions are the following: Number one…

Unknown Speaker: What do you mean this, Mr. Gottesman?

You could not get an order even though you do not have the officials, a reinstatement against the school board itself?

Mr. Michael H. Gottesman: That is what this Court held in City of Kenosha.

Under 1983, if the school board is not a person, which has not yet been decided, but if the school board in not a person under 1983 and if there is not 1331 jurisdiction…

Unknown Speaker: Even for injunctive relief?

Mr. Michael H. Gottesman: That is what City of Kenosha squarely held.

Unknown Speaker: If you would equate the school board with a municipality.

Mr. Michael H. Gottesman: If you do that.

Unknown Speaker: That is Kenosha holds that you cannot get injunctive relief against them under 1983.

Mr. Michael H. Gottesman: That is correct, any relief.

Unknown Speaker: It cannot get any relief.

Mr. Michael H. Gottesman: Any relief.

Unknown Speaker: It is immune from liability under 1983.

Mr. Michael H. Gottesman: Well, it is not, Your Honor, it is not an immunity

It is simply that Congress did not create a cause of action.

Unknown Speaker: That does basically confer a cause of action against the municipality.

Mr. Michael H. Gottesman: That is correct and it is important that it is not an immunity because I will get to it in a moment.

Unknown Speaker: Does not fit out of the word 'person'.

Mr. Michael H. Gottesman: Right.

Now, neither the District Court nor the Court of Appeals has decided whether this school district is a person in the same sense that a municipality.

We have not briefed that question because neither court reached it.

It was our view that if this Court found jurisdiction was improper under 1331, that the appropriate step would be a remand for the District Court to decide an issue which neither it nor the Court of Appeals ever reached, particularly so because the issue may turn, not necessarily, but may turn upon the precise status of school districts in Ohio.

Unknown Speaker: Well Mr. Gottesman in the page 14 (a) of the petition for Certiorari, in paragraph 9 the District Court said that this court does not state any conclusion on the possible Monroe Kenosha problem in this case.

It seems that this case, we properly hear as a 1331 case, as well as an 1983 case, and you think that is fair enough that they did not reach the 1983.

Mr. Michael H. Gottesman: Oh! Clearly I think when it said it states no conclusion on the Monroe Kenosha problem what he means.

Unknown Speaker: The only decision has been 1331.

Mr. Michael H. Gottesman: That is right, I think the reference to 1983 was it was clearly a proper 1983 case against the school officials and he ruled on the merits that as individuals they would not have to pay the judgment because they had not engaged in that bad faith and etcetera that would be strict and would dictate, entitling liability.

Unknown Speaker: Isn’t the District Court mixing apples and oranges in that paragraph 9, to which my brother White has just referred because a 1331 is a jurisdictional statute and 1983 is a substantive.

Mr. Michael H. Gottesman: But they both are sort of short hands for a combination of a cause of action and the jurisdiction predicate, when one refers to 1983 commonly, the lower courts, when they refer to 1983 they refer to as jurisdictional, when of course it is a cause of action which provides jurisdiction under 1343 or for which the jurisdiction is provided.

Unknown Speaker: I would also assumes that 1983 is separate from, has no connect with 1331 and I think you got to reach that right now.

Mr. Michael H. Gottesman: Yes, I am going to reach that right now.

Unknown Speaker: It contrasted too.

Mr. Michael H. Gottesman: That is right.

Let me come now to that.

In Bivens, this Court held that one could bring a cause of action for damages directly under the Fourth Amendment.

Unknown Speaker: Directly under the Fourth Amendment and not under the Fourteenth.

Mr. Michael H. Gottesman: Directly under the Fourth Amendment, that is correct.

Unknown Speaker: Against Federal.

Mr. Michael H. Gottesman: Directly under the Fourth Amendment against Federal officials.

Unknown Speaker: And there is no federal analog of 1983.

Mr. Michael H. Gottesman: That is correct, but the point was that the Fourth Amendment itself coupled with the jurisdictional power granted by 1331 which enabled the Federal Courts to decide all questions arising under the constitution was sufficient to allow a cause of action for damages, now for the moment not against the municipality, we will get to that in a moment.

It was sufficient to allow a cause of action under 1331, even though Congress had not enacted any statute providing such a cause of action.

Unknown Speaker: It was implied by the Court, was it not in Bivens?

Mr. Michael H. Gottesman: Well, that is right.

The existence of the constitutional Amendment implied that once Congress than conferred federal jurisdiction under 1331 and said that questions arising under the constitution could be heard by the Federal Courts.

It was implied that there would be a cause of action for damages from the Fourth Amendment itself because otherwise the Amendment could not effectively be implemented.

If you take the words and let us forget for the moment the problem that we here have, municipality…

Unknown Speaker: It was not quite even though Congress had enacted no statute, it was when congress has enacted no statute.

Mr. Michael H. Gottesman: Well it does not say that Your Honor.

What it says is, that 13, that their implicit in the constitution is a cause of action for damages provided Congress confers the jurisdiction.

Unknown Speaker: It did not imply that Congress, if it did enact a statute could not have put limitations on it.

Mr. Michael H. Gottesman: That is true.

Unknown Speaker: That is what I afforded by.

Mr. Michael H. Gottesman: But I think we have to recall the chronology here.

When the Fourteenth Amendment was passed or enacted in the late 1860s, there was no federal question jurisdiction in the Federal Courts and so Section 5 of the Fourteenth Amendment of necessity had to say, as it did say, the Congress will enact such legislation as will be necessary to provide for the enforcement of this Amendment.

That was necessary because the whole predicate of the Amendment was there ought to be a Federal cause of action and there was no federal jurisdiction to enforce it.

Now, Congress’ first response to that, to Section 5 of the Fourteenth Amendment was the enactment of the Civil Rights Act of 1871 which contain what are both now 1983 and 1343.

The cause of action and the jurisdictional provision were enacted together to provide a cause of action for damages under the Fourteenth Amendment.

Now at that time in 1871, Congress taking its first tentative step in this area made the judgment not to permit suits against Municipality so at least so this Court held in Monroe v. Pape, there are many commentators you think that is a misreading of the legislative history, but we would accept that.

We are obviously bound by Monroe v. Pape.

In 1971, Congress said, we do not want to create this cause of action against the Municipality itself, but only against the officials and if that is where things stood, there would no predicate for bringing a suit in Federal Court against the Municipality.

But four years later, Congress enacted 1331.

At that time it expressed none of the cautions that it had expressed in 1871, indeed as this Court has repeatedly commented in discussing 1331, its intention was with certain very specific exceptions to invest the federal courts with the entire body of federal question jurisdiction which constitutionally could be invested in them.

Unknown Speaker: Well how do you explain Bell versus Hoods reservation of the point ultimately decided in Bivens if it is that clear?

Mr. Michael H. Gottesman: Well, what Bell versus Hood said was, and I think really this is a all this Court needs to decide in this case given and I will get to that in a moment, Bell versus Hood said if a plaintiff comes into Federal Court and says, “I claim a cause of action directly under an amendment of the constitution” and he asserts the $10000 as in controversy, the Federal Courts have jurisdiction to decide that claim on the merits.

Now, the Court in Bell v. Hood said there are a lot of questions the Court has going to have to decide on the merits.

The first question it is going to have to decide on the merits is there such a cause of action directly under the amendment.

But if Bell v. Hood emphasized that is a question on the merits, not a jurisdiction question, and if the Court says yes, there is a cause of action, then it is going to have to go on and decide the other merits of the questions, you know, do you have a good claim under that course of action.

But it is our view and we have a footnote in our brief to this effect, it is our view that if the defendant has never, throughout these proceedings, challenged the existence of the cause of action under the Fourteenth Amendment as a merits issue, that that issue is not properly here.

It was not one of the questions presented.

It has not been briefed by either party.

It maybe the most important civil rights question that this Court is going to have to decide in the next decade.

Unknown Speaker: Mr. Gottesman, let me just interrupt you again.

Did you in your complaint identify the Fourteenth Amendment as the basis for legal recovery?

I do not find any in your complaint.

Mr. Michael H. Gottesman: Well, let me find the complaint.

Unknown Speaker: Oh! I see, in paragraph 10 you have, I apologize, it is there.

Mr. Michael H. Gottesman: It says in contravention of the Constitution and of Section 1983, so it does allege both.

Unknown Speaker: Your position then would be and perhaps it is right, is that a plaintiff, even though in fact you cannot sue a municipal corporation under 1331 because 1983 places limitations on it and you have to -- that is the only way you can get into Court because of that even though 1331 is on the books.

You would say that if the plaintiff says I have a claim under 1983 that and nothing is raised about jurisdiction, the rest of it is a merits question.

Mr. Michael H. Gottesman: Well, not a claim under 1983, and the claim directly under the Fourteenth Amendment.

This complaint alleged the cause of action under the Fourteenth Amendment with jurisdiction on 1331.

The defendant challenged jurisdiction, he did not even challenge that to the Court of Appeals, but there he said there was not $10000 in controversy, but he never disputed the existence of the cause of action under the Fourteenth Amendment which is a merits question, Bell v. Hood said.

He never disputed it in the District Court, he never disputed it in the Court of Appeals and he did not identify it as a question presented to this Court, and in our view therefore that merits question, is there such a thing as a cause of action directly under the Fourteenth Amendment is not before the Court.

Unknown Speaker: However, if you are wrong, and it is in fact a jurisdictional question rather than a merits question, then I take it to the other view it prevails.

Mr. Michael H. Gottesman: Yeah, well, clearly if it is a jurisdictional question, it is before the Court.

I would urge the Court, if the Court were so minded and I think Bell v. Hood is squarely to the contrary, that before the Court decides an issue of that input, it ought to have briefs, because this is an issue -- the lower courts are deciding this issue by the legions.

You will have ample opportunity to decide it in the case when it is properly briefed.

You can even direct further briefing in this case, but I view if the real trepidation that the Court will decide the issue without briefs, we have a lot, we would like to say on that issue, but we did not understand that issue to be properly before the Court, because as we read Bell v. Hood it was not a jurisdictional question, but a merits question which was not raised.

The remaining jurisdictional question here is amount in controversy and really with my limited time, I would like to go on to other issues.

I think we dealt with that in our brief.

Unknown Speaker: Let me just ask one other question on the person issue.

Do you agree that the issue of whether or not the school board is a person is a jurisdictional issue?

Mr. Michael H. Gottesman: That is interesting.

Now, I guess -- it never occurred to me until Your Honor asked the question, but obviously for the same reason, the answer is no, it is not jurisdiction, although jurisdiction does depend on it.

That is to say, if I allege a cause of action under 1983 saying that a school board is a person, that is a merits question, is there such a cause of action and yet jurisdiction, I guess the mere allegation of it.

If in the same way that Bell v. Hood does, the mere allegation of that cause of action confers jurisdiction, but if the Court decides on the merits that the school board is not a person then on the merits, you fail on your cause of action.

Unknown Speaker: I am just wondering who has the burden of proof because it does not seem to me that anybody really addressed themselves to the problem in the District Court, even in the pleadings.

Mr. Michael H. Gottesman: Well, one of the terrible problems about this case Your Honor is that almost every issue that is before this Court and they are all terribly important issues, is here without having been raised by the defendants in the District Court with no record and a record would have been made both on jurisdiction and the Eleventh Amendment, if they have been put an issue, I can assure the Court…

Unknown Speaker: But of course if there is jurisdictional issue then it was the plaintiff’s job to push them, brief them and make a record of.

Mr. Michael H. Gottesman: Well, that is always true Your Honor, but I think the true meaning of Bell v. Hood is that a plaintiff who comes into Federal Court and says, “I have a cause of action and this is my cause of action” and who cites the appropriate jurisdictional provisions which that cause of action would trigger.

In fact has properly asserted jurisdiction and it then lies with the defendant to challenge the existence of the cause of action and that is not really an accurate statement, it always lies with the plaintiff to establish his cause of action.

But if the defendant never disputes the existence of the cause of action that is a merits question and the defendant is going, if the Court accepts that there is such a cause of action, the defendant is going to be stuck with it.

Unknown Speaker: What if the defendant never disputes the existence of jurisdiction?

Mr. Michael H. Gottesman: Now, the Court is always free to raise the…

Unknown Speaker: The Court is always free and so it becomes very important whether or not this is a jurisdictional question or a merits question.

Mr. Michael H. Gottesman: Now, on both questions, this Court does not have briefing from the parties.

Both questions are of, I cannot describe what great importance they are for school desegregation cases, for this kind of case, for almost any kind of Fourteenth Amendment case and I cannot plead too strongly with the Court that if the Court is going to disagree with us that they are not jurisdictional, and therefore, not properly before the Court that we would request an opportunity to brief them, or a great deal turns on this and it should not be decided in a case where it is not before the Court and where we really need to decide, is brief this issue.

Now, I have got about 7 minutes remaining by my count and I have got a choice between getting into what is really a fascinating First Amendment issue and a fascinating Eleventh Amendment issue and my instinct is to go to the First Amendment and I say that because if anyone wants to ask questions about the Eleventh Amendment, I may probably will not get to it.

Unknown Speaker: When was Eleventh Amendment issue raised?

Mr. Michael H. Gottesman: The Eleventh Amendment issue was raised in the opening appellate brief by the defendant.

Unknown Speaker: In the Court of Appeals, and it has never really been addressed by any courts below?

Mr. Michael H. Gottesman: Well, the District Court raised it on it is own motion.

I think that is how the defendant discovered that it existed.

Unknown Speaker: But it just that it was not raised.

Mr. Michael H. Gottesman: Well no, it said it is been waived.

Unknown Speaker: Back to that, it is the same Paragraph 9.

Unknown Speaker: But then it was never really discussed by any court?

Mr. Michael H. Gottesman: No, it was briefed by both sides in the Court of Appeals and the Court of Appeals affirmed without mentioning it and so it is here again in this peculiar posture that a terribly important issue and all of these issues, incidentally all of the Courts of Appeals are ruling in our favor, that is obviously not controlling in this Court but we would certainly like to bring to this Court’s attention the analytical guidance that those lower courts have provided before this Court rules on it, but the Eleventh Amendment issue was terribly important.

It has never been discussed by the Lower Courts in this case.

If it had been raised in the District Court, we would have made a record.

We would have shown that there is not any possible way that this judgment would have cost the state a penny, that there is an independent entity, the school board which is not the alter ego of the state.

Unknown Speaker: Of course you know from the Ford Motor Company that can be raised on appeal.

Mr. Michael H. Gottesman: Well, we at least know it from Edelman Your Honor, I am not sure…

Unknown Speaker: Well, the Edelman relied on Ford Motor Company’s…

Mr. Michael H. Gottesman: Yes it did.

There is not question that it did.

Unknown Speaker: You are under a fair warning on that in a District Court, I think?

Mr. Michael H. Gottesman: Again we are under fair warning, but it is a defense.

On that one this Court said both in Edelman and in Sosna versus Iowa, the Eleventh Amendment is a defense.

It is a defense that they do not waive by failing to raise it in the District Court.

They can assert this defense for the first time in the Court of Appeals or even in the Supreme Court, but it is nonetheless a defense, and the plaintiff does not have the burden to come in and prove the non existence of an immunity which is not asserted by the defendant.

This Court I believe in Sosna said it was in an affirmative defense so I do not want to overstate.

In any event, had it been raised, and it is a defense I think, had it been raised, we would have made a record.

That record would have shown beyond per adventure of doubt that an award in this case or back pay will not impact upon the Treasury of the State of Ohio.

That would impact only on treasury of the school board, and beyond that, it seems to me we had a further point to make which we do make in our brief, which is even if for some reason we could not collect this from the school board and the school board has been tendering suggestions to this Court that maybe they could not get the voters to approve a bond issue or a tax levy or whatever, even if we were unable to collect that would not implicate the State Treasury.

We would not be the first plaintiffs who got a judgment that was uncollectible, but it would not give us a cause of action then against the state to make the state pay.

It is a judgment against the school board.

Unknown Speaker: I, for one, would be interested and up to you if you like to spend your brief remaining moments in discussing the merits.

Mr. Michael H. Gottesman: Okay, thank you Your Honor.

There are two merits question, they are both fascinating.

The first one is was the school board entitled to rely on the phone call in making it is decision, not to renew this teacher’s employment.

We think the answer to that is clearly that they were no entitled to rely on it.

We have briefed that at some length, and I think as carefully as we could, in my limited time I would like to reach the other question which is really new to this Court and that is how are the Federal Courts to deal with the situation in which it is found that a school board or another public employer has relied on more than one reason in reaching it is decision not to continue employment.

One of those reasons is an impermissible reason upon which it had no right to rely and the other one or more, I think the District Court fairly read, found that there were only two reasons here, the second reason was a reason upon which they could rely, does that mean automatic…

Unknown Speaker: How about the misconduct in the lunch room cafeteria?

Mr. Michael H. Gottesman: Those things, the letter they gave him saying what was wrong.

Unknown Speaker: Now, you say too, that one was that telephone call…

Mr. Michael H. Gottesman: The other was the gesture to the students in the…

Unknown Speaker: The obscene gesture to the students.

Mr. Michael H. Gottesman: It characterizes itself, I will accept that.

In any event we do not assert that that is a First Amendment protective gesture.

Unknown Speaker: So you conceive that one was a proper foundation and submit that the other was not.

Mr. Michael H. Gottesman: That is right.

When we say we admit that the first would have been a proper foundation if that is in fact what would have actuated the words alone, to decide not to renew.

Unknown Speaker: Is not that second ground something broader than just a single episode, is it not?

It is a broad question of his lack of maturity.

Mr. Michael H. Gottesman: Well there was a dispute between…

Unknown Speaker: And there I have perhaps a dozen elements under that…

Mr. Michael H. Gottesman: Well, at most there are only five that were testified by the witnesses, including the written phone calls so there are two plus three others.

The critical piece of evidence, upon which the District Court appears to have relied and certainly supports the District Courts finding, was the letter they gave to the teacher, when he said why did you deny me renewal, and they said, one, two, but be that as it may whether it is two or five, we have a case…

Unknown Speaker: In which at least they which one is out, in your submission.

Mr. Michael H. Gottesman: Now, if we could only know what the school board would have done but for the phone call, we know how to, it seems to me how to deal with this case.

If we knew for example that but for the phone call the school board would have given him his contract, then it is clear that there is a remedy he ought to get his contract.

On the other hand if we knew that the other one or more incidents standing alone would have convinced them to deny him renewal, then it is clear that he ought not to get his contract as a remedy, or the back pay, but we cannot know, not only do we not know, we cannot know, because as a result of the improper reliance on that one issue, the school board never made the decision it was supposed to make.

Unknown Speaker: But that assumes about the improper reliance.

Mr. Michael H. Gottesman: Yes, it assumes that there was reliance on this which the District Court found and which the…

Unknown Speaker: Yes, but you have to assume it was improper.

Mr. Michael H. Gottesman: We have to assume that this was…

Unknown Speaker: That the first question…

Mr. Michael H. Gottesman: Yes, I have assumed it.

That is right and I have urged the Court that since I have now one minute we brief the preposition that it is improper and I want to address the question of how does the Court remedy the solution.

Unknown Speaker: Well, it has to be that you may not even rely on the phone call that is your lack of tact.

Mr. Michael H. Gottesman: In the facts of this case…

Unknown Speaker: Because that is projected First Amendment activity.

Mr. Michael H. Gottesman: Right and it is not, it was not a tactless phone call, they just put tact as a label on the fact that he made the phone call.

Now our view is that guidance is provided in a number of areas of what should you do when you have a mixed improper decision which is that you put the burden on the wrong doer, as Judge Leonard Han (ph) said in a very similar in NLRB case to disentangle the consequences for which he is chargeable, from those from which he is immune from responsibility.

It is his burden to persuade the trial effect that even without this incident he would have reached the same decision.

This court apply that same standard under Title VII of the Civil Rights Act, last year in Franks versus Bowmen Transportation saying that where race was a factor in a employer’s decision to deny employment to somebody that does not mean that he might not have denied employment to him anyway, but the burden is going to be on the employer to show that would have reached the same decision even if race had not been a factor.

Now, these have all been statutory causes of action, where the violation of the statutory right shifted the burden to the defendant, and we submit that the rule surely must be at least the same, when it is a violation of one’s constitutional right which has created this mixed motive dilemma that the burden must be on the defendant and as we explain in our brief, there was no evidence introduced in this case from which the Court could have find and indeed the Court did not find that the defendant met that burden.

Unknown Speaker: And before you sit down, just let me ask you this that would it not be true that however we decided to this case.

So far as future conduct when future behavior on the part of school boards around the country would be almost meaningless or else they would put them in terribly bad trap because let us assume in that if we decide the case in your favor, thereafter would it not be true that any incompetent teacher who knew that because of his incompetence or misconduct or bad behavior he was not going to be rehired could simply go out and make a speech, a very insulting speech against the school board and if that or any part of their decision not to rehire him, then he would have to be rehired despite his misconduct and incompetence on the one hand, and would it not mean on the other hand that if we decide it in your favor that any school board that could read or whose lawyer could read would know that when they failed to rehire a candidate, a teacher, all they had to do is not mention this speech and then they could fail to rehire him, so are we not just talking about meaningless words?

You might win or lose your case, but from the point of view of future conduct would be meaningless.

Mr. Michael H. Gottesman: I think not Your Honor, anymore than under Section 83 of the National Labor Relations Act which forbids discharges based on union activity or extension from union activity.

The labor board has been adjudicating for four decades in which the parties knew that a mixed motive termination led to what Judge Leonard Han said it led to it, disentangling of the consequences and the remedy dependent on that.

For four decades parties have developed a whole body of laws developed which is used by analogy in this First Amendment cases.

Of course the school board never rarely say as this one so candidly did, we relied on this and yet you can find from other evidence on occasions that they did.

You can find that the disparate treatment for example, ten people did the other things they are lying on, the only difference is this teacher made a speech and how would he goes.

There are a variety of those.

The other side of the coin is to us more troublesome which is if we do not have a burden on the defendant in the mixed motive cases, every school board that wants to fire a defendant for a First Amendment reason, well, simply no teacher can teach for five years without having done something that somebody could find objectionable.

Even though their motivation is solely the First Amendment reason, they will just tack on to two or three other incidents that are just.

Unknown Speaker: Without mentioning the First Amendment reason.

Mr. Michael H. Gottesman: Well, either with or without, if the Court says that as long as there is collection of reasons, as long if it is a mixed decision we are going to sustain it, then they can be perfectly candid and say well we do not like the fact that you made this First Amendment speech but we also notice that two years ago you made an obscene gesture in cafeteria, so ha, ha there is nothing you can do about it.

Unknown Speaker: This is something like have some resemblance at least to the harmless error rule, is it not?

Mr. Michael H. Gottesman: It does except – well, I guess that is right.

The burden is on the defendant to show that it was indeed harmless and in that sense it is the same, that is right.

Well, the prosecution was the wrong doer in that case, and the burden is on the wrong doer, if I can use that word.

Wrong doer is the wrong word for the prosecution.

The burden is on the party.

Unknown Speaker: Well sometimes it traps it is a right word.

Mr. Michael H. Gottesman: Well, I did not mean that.

The burden is on the party who wants sustain the result even though one of the factors that led to the result is now going to be removed to show that that factor was not critical to the result.

Unknown Speaker: The other alternative is to give no reasons at all and they do not…

Mr. Michael H. Gottesman: Well, and they are under no obligation to, but that does not mean that it would not be a First Amendment violation if we could find out independently that that was the reason that they did not.

Unknown Speaker: Very well.

You have anything further Mr. Olinger.

Rebuttal of Philip S. Olinger

Mr. Philip S. Olinger: No, I do not, Your Honor.

Chief Justice Warren E. Burger: Very well, thank you, gentlemen.

The case is submitted.