1 United States Court of Appeals,

Fifth Circuit.

No. 94-30070

Summary Calendar.

Charles E. HILLIARD, Plaintiff-Appellant,

v.

Barbara FERGUSON, Superintendent of the Orleans Parish School System, and Orleans Parish School Board, Defendants-Appellees.

Sept. 8, 1994.

Appeal from the United States District Cour t for the Eastern

District of Louisiana.

Before WISDOM, KING, and GARWOOD, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiff in this case, Charles E. Hilliard, brought a

civil rights action against Barbara Ferguson, Superintendent of the

Orleans Parish School Board, and the Orleans Pari sh School Board

pursuant to 42 U.S.C. §§ 1983 and 1985(3). The district court

entered summa ry judgment for the defendants. We affirm that

decree.

I.

In early 1992, Hilliard applied for a job with Project

Independence, which was part of the Adult Education Program of the

Orleans Parish School System. He contends that James Raby, a

coordinator at Project Independence, told him that his application

would be denied because Board polic y precluded consideration of1 Hilliard had spent just shy of ten years in federal prison

for armed robbery.

2 Even if he were found to be a suitable candidate, other obstacles still stood in Hilliard's way. The Board informed him,

2 applicants with prior felony convictions. 1 Hilliard acknowledges,

however, that Raby also told him that, irrespective of his prior

conviction, no available positions existed with the Adult Education

Program. Raby recommended that Hilliard apply directly to the

Orleans Parish School Board.

Hilliard took that advice and submitted his application to the

Board. In response, the Board sent him a brochure outlining Board

policies. The pamphlet, "Application Procedures for a Teaching

Position with the New Orleans Public Schools" stated that "Felony

convictions will automatically eliminate an applicant from

consideration." Later, the Board informed Hilliard that it hired

only certified applicants (Hilliard still needed to p ass the

National Teacher's Exam).

While updating his application, Hilliard wrote to the Board's

personnel director. In his letter, Hilliard stated his belief that

the Board's automatic eli mination of convicted felons from the

application process violated federal law. The personnel director

informed Hilliard that his accusation w as premature because no

decision had yet been reached on Hilliard's application. Moreover,

the letter informed Hilliard that he would nonetheless be

interviewed and should, at that time, explain the details of his

conviction. After the interview, a decision as to Hilliard's

suitability would be reached. 2for example, that any vacancies would first be filled by surplus

teachers and then by fully certified teachers.

3 II.

Hilliard filed suit in fe deral court alleging that Ferguson

and the Board violated his fourth and fourteenth amendment rights

by denying him employment on the basis of his status as a convicted

felon. He also alleged that the Board's policy on this matter

constituted a conspiracy to deprive members of his class (convicted

felons) of their rights to equal protection.

The defendants moved for summary judgment on both claims. As

to the former, the defendants argued that Board policy does not

exclude all felons from employmen t. The Board contends (and

Hilliard admitted) that the statement in the pamphlet that all

convi cted felons are automatically eliminated was made in error.

Instead, the Board's actual and long-standing policy requires the

superintenden t to review the facts and circumstances of each

applicant's felony conviction. Then, an individualized

determination as to the suitability of the candidate is made.

F actors considered include the crime, the position sought, and

evidence of rehabilitation.

On Hilliard's second claim, the defendants argued that they

were entitled to summary judgment because a corporati on cannot

conspire with its own agents or employees. In this case, they

contend, the alleged conspiracy involved Ferguson, an employee or

agent of the board, and the Board itself. These are all factions

of the same legal entity: The School Board. The district court3 Fed.R.Civ.P. 56(c).

4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106
S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986).

5 Salas v. Carpenter, 980 F.2d 299, 304 (5th Cir.1992).

6 Monell v. Department of Social Services, 436 U.S. 658, 690,
98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978).

4 granted the defendants' motion as to both claims.

III.

We revi ew the district court's grant of summary judgment d e

novo. We look to see first, whether a disputed issue of material

fact exists and, second, whether the moving party is entitled to

judgment as a matter of law. 3 In this case, to defeat the Board's

motion for summary judgment, Hilliard must have set forth specific

facts showing the existence of a genuine issue for trial. 4 In our

examination, we view the evidence in a light most favorable to

Hilliard, the non-moving party. 5

IV.

Section 1983 provides a cause of action against "[e]very

pers on who, under color of any statute ... of any State ...

subjects, or causes to be subjected, any citizen

... to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws...." Moreover, section 1983 provides a cause

of action against local governmental units when the allegedly

improper action was taken pursuant to municipal policy or custom. 6

Hilliard's § 1983 claim that the Board policy excluding from

consideration any convicted felon violates his fourth and fourteen

amendment rights is con tradicted by his own testimony. He7 Hilliard admitted that the official Board policy regarding

the employment of convicted felons provides, in part:

An applicant must be of good character. If he/she has any prior record of arrest or conviction by any local,
state, or federal law enforcement agency for an offense other than a minor traffic violation, the facts must be reviewed by the Superintendent and his/her staff who shall decide whether the applicant shall be declared eligible for appointment.

Basic Employment Requirements of the Orleans Parish School Board, adopted Aug. 4, 1969, revised, Nov. 26, 1973 and

March 22, 1976.

8 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,
313, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520 (1976); Arceneaux v.

Treen, 671 F.2d 128, 133 (5th Cir.1982).

9 Baer v. City of Wauwatosa, 716 F.2d 1117, 1125 (7th Cir.1983); Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st Cir.1970).

5 testified at his deposition that Raby never told him that his

felony conviction automatical ly disqualified him for a position.

I n fact, Hilliard acknowledged at his deposition that the actual

Board policy requires a case-by-case examination into the

circumstances of each felon's conviction. 7 In other words, subject

to special clearance from the O rleans Parish Department of

Personnel, a convicted felon may be eligible for employment. This

admission precludes a finding of any disputed issue of fact as to

the Board's official policy.

Having ascertained t he Board's actual policy, we must

determine whether it runs afoul of the applicable legal standard.

It does not. Because the "right to hold public employment is not

a recognized fundamental right," 8 and con victed felons are not a

constitutionally protected suspect class, 9 no he ightened level of10 United States v. Galloway, 951 F.2d 64, 66 (5th Cir.1992).

11 Our holding is in keeping with other courts that have

examined this issue in other contexts. See, e.g., Upshaw, 435 F.2d at 1190-91 (convicted felon subsequently granted a full pardon by the state of Massachusetts sought appointment to the Boston Police Department after scoring well on his civil service examination; court upheld denial of his application on the basis
of his criminal record); McGarvey v. District of Columbia, 468 F.Supp. 687, 689-90 (D.D.C.1979) (upholding examination mandated by D.C.Code into the circumstances of a felony conviction prior to public employment).

6 scrutiny applies. Instead, we apply the rational basis test. We

examine the Board's policy to determine whether it bears "a

rational relationship to a legitimate end". 10

The Board's policy easily satisfies that minimal threshold.

Looking a little deeper into a convicted felon's background and, in

particular, at the circumstances of the convi ction is rationally

related to serv e the legitimate interest in protecting the

schoolchildren within that teacher's proximity and care. 11 We would

expect nothing less. The policy serves to ensure that the highest

degree possible of ed ucational services will be provided to the

children of Orleans Parish within a safe and secure environment.

V.

Hilliard also alleges a conspiracy between Ferguson and the

Board to deprive him of his civil rights. To state a claim under

42 U.S.C. § 1985( 3), a plaintiff must allege: (1) a conspiracy

involving two or more persons; (2) for the purpose of depriving,

directly or indirectly, a person or class of persons of the equal

protection of the laws; and (3) an act in furtherance of the

conspiracy; (4) which causes injury to a person or property, or a12 Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th

Cir.1987) (citing United Brotherhood of Carpenters and Joinders
of America, Local 610 v. Scott, 463 U.S. 825, 828-29, 103 S.Ct.
3352, 3355-57, 77 L.Ed.2d 1049 (1983)).

13 Burns-Toole v. Byrne, 11 F.3d 1270, 1276 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2680, 129 L.Ed.2d 814 (1994).

14 Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97
L.Ed. 1356 (1953).

15 926 F.2d 505 (6th Cir.), cert. denied, --- U.S. ----, 111
S.Ct. 2917, 115 L.Ed.2d 1080 (1991).

7 deprivation of any right or privilege of a citizen of the United

States. 12 In so doing, the plaintiff must show that the conspiracy

was motivated by a class-based animus. 13

The district court concluded that Hilliard had failed to show

that the conspiracy involved two or more persons. That conclusion

is sound.

It is a long-standing rule in this circuit that a "corporation

cannot conspire with itself any more than a private individual can,

and it is the general rule that the acts of the agent are the acts

of the corporation." 14 In this case, we apply that rule to the

School Board.

In Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. 15

, the

U.S. Court of Appeals for the Sixth Circuit did exactly that. In

Hull, the court applied our holding in Nelson to a § 1985(3) claim

alleging a similar conspiracy involving the Cuyahoga School Board.

The plaintiff in Hull alleg ed that the Cuyahoga School

Superintendent conspired with the executive direct or of the

district and a school administrator. All were employees of the16 Id. at 509-10.

17 See Moody v. Jefferson Parish School Board, 803 F.Supp.1158, 1166 (E.D.La.1992) (School Board, Principal, VicePrincipal, and various teachers are all employed by the Jefferson Parish School Board and, thus, are a single entity), aff'd 2 F.3d 604 (5th Cir.1993); Hankins v. Dallas Indep. Sch. Dist., 698 F.Supp. 1323, 1330 (N.D.Tex.1988) (high school and its officials constitute a single entity); Chambliss v. Foote, 421 F.Supp. 12, 15 (E.D.La.1976) ("the university and its officials are considered as constituting a single legal entity which cannot conspire with itself"), aff'd, 562 F.2d 1015 (5th Cir.1977),
cert. denied, 439 U.S. 839, 99 S.Ct. 127, 58 L.Ed.2d 137 (1978).

8 School Board. The court held that, as all were members of the same

c ollective entity, the conspiracy did not involve two or more

people. 16 Three district court cases in this Circuit have reached

the same conclusion. 17 We do so as well.

We do not overlook the ways in which a school board is unique

and distinct from a corporation. A corporation maintains a unified

face in the eyes of the law. It is in that vein that we say that

a corporation is a per son. A school board, however, is a

collection of individuals , some fill elected positions, some are

salaried workers. Still, that distinction is not dispositive. All

are employees of the school board. We follow the reasoning of the

other courts on this question and hold that a school board and its

employees constitute a single legal entit y which is incapable of

conspiring with itself for the purposes of § 1985(3).

VI.

We are convinced that Hilliard did not receive an offer of

employment because no positions for which he was qualified and

certified were available. The plaintiff is resting on "mere18 Liberty Lobby, 477 U.S. at 256, 106 S.Ct. at 2514.

9 allegations or denials" 18 in his effort to show that something more

serious or sinister was invol ved. This he may not do. Judgment

for the defendants was proper.

AFFIRMED.