American School Board Journal, September 2003: Vol. 190, No. 9:

It's easy to see why a school district might require its employees to send their own children to public schools. Such "patronage" policies, as they're called, help market public education to parents who have the option of sending their children to private schools. These policies say the district believes so much in the quality of its schools that it is willing to vote with its feet -- or rather, with the feet of its employees' children.

But are patronage policies constitutional? That's the question the 5th U.S. Circuit Court of Appeals tackled in its recent decision in Barrow v. Greenville Independent School District.

An educator -- and a mother

In 1998, Karen Jo Barrow was both a mother and a teacher. As a teacher she was employed by the Greenville Independent School District (GISD), near Dallas. As a mother, she and her husband chose to send their children to Greenville Christian School, a private religious school.

In July 1998, Barrow decided to apply for a position as assistant principal of Greenville's middle school. Superintendent Herman Smith told her that, under GISD policy, the school-age children of all principals and administrators were required to attend public school. Smith said he would not consider Barrow for the position unless she enrolled her children in public school.

Barrow and her husband refused to switch their children to public school, and Smith did not consider her for the job. According to the evidence summarized by the 5th Circuit, Smith did not penalize Barrow for sending her children to a religious school. Rather, the policy prohibited school officials from sending their children to any private school, religious or secular.

Barrow sued the school district and Superintendent Smith in U.S. District Court. She contended that the patronage policy violated her rights under the First Amendment and the Due Process Clause of the 14th Amendment to direct the upbringing of her own children and to send her children to private school.

Smith filed a motion for summary judgment, asking the court to dismiss the suit against him without the need for a trial. He based his motion on two grounds. First, he argued that the policy was constitutional. Second, he maintained that even if the court were to decide now that the policy violated the Constitution, the Constitution still shielded him with "qualified immunity" from Barrow's suit because it was not reasonably clear at that time that the policy was unconstitutional.

U.S. District Judge Sidney A. Fitzwater agreed with Barrow that the patronage policy violated the Constitution. However, the judge then ruled that qualified immunity protected Smith from the suit. Accordingly, Fitzwater dismissed Barrow's suit against Smith and postponed any decision on her suit against the school district.

Barrow appealed to the 5th Circuit, which covers Texas, Louisiana, and Mississippi. In a decision issued in June, the 5th Circuit ruled in Barrow's favor.

Balancing two interests

Judge Thomas M. Reavley wrote the opinion for a unanimous court. Reavley framed the case as a conflict between two legitimate interests: the right of parents under the Due Process Clause of the 14th Amendment to control the upbringing of their children, and the school district's interest in promoting the effective operation of schools.

Judge Reavley traced the legal roots of this controversy back to decisions by the U.S. Supreme Court three-quarters of a century ago. In Meyer v. Nebraska (1923), the Supreme Court ruled that parents have a right (though not an absolute one, of course) under the Due Process Clause to control the upbringing of their children. Then, in 1925, the court ruled in Pierce v. Society of Sisters that this right included the right to enroll their children in private school.

The next step in the history leading to this case was the Supreme Court's 1968 decision in Pickering v. Board of Education. When a school employee claims that a district's personnel decision interferes with the employee's constitutional rights, that decision said, the courts must balance the employee's rights against the district's interest in the efficient functioning of the schools.

The question in this case, then, was how to weigh Barrow's undisputed constitutional right as a parent to enroll her children in a private school against the school district's interest in promoting the effective operations of the Greenville public schools.

Looking to precedent

To answer that question, Judge Reavley looked to two previous decisions of the 5th Circuit for guidance. In its 1983 and 1985 decisions in Brantley v. Surles, the 5th Circuit ruled that a school district had violated the parental rights of the cafeteria manager in a mostly African-American elementary school by firing her for enrolling her son in a segregated private school.

The school district claimed that sending the boy to a segregated private school might cause racial tension in the elementary school where Brantley worked. The court concluded, however, that the school district's fear was merely speculative and not supported by "any objective evidence." In the absence of such evidence, the school district could not show that Brantley's decision materially interfered with the effectiveness of the school district's operation. Accordingly, the court ruled, Brantley's parental rights trumped the school district's interests.

Then, in Fyfe v. Curlee, in 1990, the 5th Circuit held that a school district violated the parental rights of an elementary school secretary by demoting her to a menial job in retaliation for her decision to send her daughter to a segregated private school. The school district had emphasized that it made the personnel decision during a period in which African-American citizens were boycotting local businesses to pressure the school district to hire more African-American teachers and administrators.

The court observed that the school district did not prove that the secretary's decision to send her daughter to a segregated private school played a causal role in the boycott. As in Brantley, then, the court held that the school district had failed to show that the parent's decision had materially interfered with the effective operation of the public schools.

A parent's right

Judge Reavley concluded that the decisions in Brantley and Fyfe applied to this case. As in Brantley and Fyfe, Barrow had an unquestioned constitutional right as a parent to enroll her children in a private school. As in those cases, the school district would have to show that Barrow's choice materially interfered with the operation of the district's schools. And, as in those cases, the district failed to present such evidence of material interference.

It's worth noting that the 11th Circuit (covering Florida, Georgia, and Alabama) also struck down a patronage policy for school district employees in 1984 in Stough v. Crenshaw County Board of Education.

Next, Reavley considered whether Superintendent Smith was shielded from Barrow's suit by the legal doctrine of "qualified immunity."

In Harlow v. Fitzgerald (1982), the Supreme Court held that a public official is immune from a suit claiming a constitutional violation unless the constitutional right at stake was clearly established at the time of the alleged violation so that any reasonable official in the same position would know that the official's conduct violated the Constitution. The rationale of Harlow is that it's unfair to hold a government official personally liable for a constitutional violation unless the law had given the official fair warning that his or her conduct violated the Constitution.

Reavley concluded that in 1998, in light of Brantley and Fyfe, any reasonable superintendent in the 5th Circuit would have known that the application of GISD's patronage policy to Barrow violated her parental rights under the Constitution.

Smith tried to distinguish Barrow's case from Brantley and Fyfe by arguing that Barrow sought a job as an administrator, while Brantley and Fyfe were not administrative employees. He maintained "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" and, therefore, that a patronage policy requiring administrators to enroll their children in public school has greater impact on the public's confidence in the public schools than one applying to nonadministrative employees.

Reavley assumed, for the sake of argument, that Smith's assessment of the significance of an administrator's personal educational decisions might be correct. But he still concluded that Smith had not shown that Barrow's decision would, in fact, undermine the public's confidence in the public schools. In other words, in the absence of objective evidence showing the impact of an administrator's decision to send her children to a private school on public confidence in the public schools, Smith's argument -- though plausible -- was still too speculative to override Barrow's parental rights.

A high burden of proof

The 5th Circuit's decision does not necessarily end the case. It merely reverses the district court's dismissal of Barrow's suit against Smith and sends it back to district court for a trial or settlement.

As a practical matter, however, it's hard to imagine how Smith can supply evidence to prove that hiring Barrow would have undermined the public's confidence in the Greenville public schools. Of course, it's possible that research might discover such evidence, such as surveys of relevant public opinion in Greenville or elsewhere in the country.

In the final analysis, though, I believe the 5th Circuit (along with the 11th Circuit in Stough) has erected a very high -- and maybe insurmountable -- burden of proof for school districts to show that policies requiring employees to live within the district are necessary to sustain public confidence in public schools.


Benjamin Dowling-Sendor, an authority on school law, is an assistant appellate defender of North Carolina in Durham.

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