* This decision is rendered by a quorum pursuant to 28 U.S.C.

§ 46(d). United States Court of Appeals,

Fifth Circuit.

No. 85-1015.

Norman JETT, Plaintiff-Appellee,

v.

DALLAS INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.

Nov. 29, 1993

Appeal from the United States District Court for the Northern

District of Texas.

On Remand From the Supreme Court of the United States.

Before KING and GARWOOD, Circuit Judges. *

GARWOOD, Circuit Judge:

This case is before us on remand from the United States

Supreme Court. J ett v. Dallas Independent School Distri ct, 491

U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).

The facts and procedural posture of the case are reflected in

the Supreme Court's opinion and in our ea rlier opinions herein.

Jett v. Dallas Independent School District, 798 F.2d 748, rehearing

denied, 837 F.2d 1244 (5th Cir.1988). For present purposes, it

suffices to note that p laintiff-appellee Norman Jett (Jett),

formerly a teacher, coach, and athletic director at South Oak Cliff

High School (South Oak Cliff) in the Dallas Independent School

District (DISD), brought this suit under 42 U.S.C. §§ 1981 and 1983

against the DISD and the South Oak Cliff principal, Dr. Frederick

Todd (Principal Todd), complaining that his transfer from South Oak

Cliff to a teaching position without any coaching duties at another1 As noted in our prior opinion, Todd testified race played no

part in his recommendation, and Wright testified that neither

Jett's race nor his having made statements to the media played any

part in his decision and that he was unaware th at Todd had based

his recommendation on remarks Jet t made to the media. J ett, 798

F.2d at 761. DISD school violated his constitutional rights to equal protection

of the laws and freedom of sp eech. The transfer was made on the

r ecommendation of Principal Todd and was ordered and approved by

the DISD superintendent, Dr. Linus Wright (Superintendent Wright),

who was n ot made a defendant. Principal Todd did not purport to

order the transfer and he had no authority to do so. No action

respecting the transfer was taken by the DISD board of trustees,

nor was that matter ever brought, or sought to be brought, before

the board of trustees. Jett, who is white, claimed that Principal

Todd, who is black, was improperly motivated in making his transfer

recommendation by racial considerations and by Jett's exercise of

his First Amendment rights, and that he, Jett, had told

Superintendent Wright, before Wright approved the transfer

recommendation, that Principal Todd's real reason for recommending

t he transfer was that he wanted to replace Jett with a black

coach. 1

The case was tried to a jury, which awarded Jett damages

against the DISD and Principal Todd ind ividually, finding that

Principal Todd's transfer recommendation was substantially

motivated by both Jett's race and his exercise of First Amendment

rights an d that the DISD's transfer of Jett "was based solely on

Defendant Todd's recommendation without any independent

investigation." Following r emittitur of some of the damages,2 Jett also alleged in the district court, and the jury found,

that he had a property interest in his position at South Oak Cliff

which the DISD deprived him of without due process of law, and that

th e DISD constructively discharged him from its employment. We

reversed and rendered judgment against Jett on these claims,

holding that as a matter of law Jett was not constructively

discharged and that his transfer from South Oak Cliff did not

deprive him of a property interest as his full agreed compensation

was continued. These matters are no longer at issue. Nor is

Principal Todd's personal liability any longer at issue, as he and

Jett settled while the case was pending rehearing in this Court.

See Jett, 491 U.S. at 707-709, 109 S.Ct. at 2708.

3 We further held that the charge was deficient even if it were assumed that Superintendent Wright, having the final authority in

deciding whether a given transfer o f a particular teacher-coach

would be made, also ha d the requisite policymaking authority in

respect to such transfers, because nothing in the charge required

the jury to find "that Wright's decision was in fact improperly

motivated or that Wright knew or believed that (or was consciously

indifferent to whether) Todd's recommendation w as so motivated."

Id. at 760. We noted in this connection that "Todd clearly was n ot

a policymaker." Id. at 761. judgment on the verdict was entered for Jett and against the DISD

and Principal Todd.

On the appeal to this Court by the DISD and Principal Todd, we

affirmed the distr ict court insofar as it held Principal Todd

liable for making his transfer recommendation on the basi s of

Jett's race and First Amendment protected speech. 2 We reversed and

remanded Jett's section 1983 equal protection and First Amendment

claims against the DISD because the district court's jury

instructions failed to state that the DISD "could be bound by the

principal or superintendent only if he was delegated policy making

authority (or if he participated in a well settled custom that

fairly represented offici a l policy and actual or constructive

knowledge of the custom was attributable to the governing body or

an official delegated policy making authority)." J ett, 798 F.2d at

759. 3 We further held that the same standards applied to4 The Court had earlier "assume[d]

... without deciding, that

petitioner's rights under § 1981 have been violated by his removal

and reassignment" since the DISD had never argued "that § 1981 does

not reach petitioner's employment injuries." I d. 491 U.S. at 711,

109 S.Ct. at 2710. governmental liability under section 1981, and accordingly reversed

and remanded Jett's section 1 981 claim against the DISD. I d. at

761-763.

The Supreme Court granted Jett's petition for ce rtiorari on

the section 1981 issue and also granted the DISD's cross-petition.

488 U.S. 940, 109 S.Ct. 363, 102 L.Ed.2d 353 (1988). As to the

former, the Court held that:

"... the express "action at law' pr ovided by § 1983 for the

"deprivation of any rights, privileges, or immunities secured

by the Constitution and laws,' provides the exclusive federal

damages remedy for the violation of the rights guaranteed by

§ 1981 when the claim is pressed against a state actor. Thus

to prevail on his claim for damages against the school

district, petitioner must show that the violation of his

"right to make contracts' protected by § 1981 was caused by a

custom or policy within the meaning of Monell [ v. New York

City Dept. of Social Services, [436 U.S. 658] 98 S.Ct. 2018

[56 L.Ed.2d 611] (1978) ] and subsequent cases." J ett, 491

U.S. at 735, 109 S.Ct. at 2722. 4

The Court accordingly affirmed our judgment "to the extent that it

holds tha t the school district may not be held liable for its

employees' violation of the rights enumerated in § 1981 under a

theory of respondeat superior. " I d. 491 U.S. at 738, 109 S.Ct. at

2724.

With respect to the DISD's sections 1981 and 1983 liability

under the standards of M onell and subsequent cases, the Supreme

Court determined, as we had, that the jury charge in this respect

"was manifest error" because it assumed that either Principal Todd

or Superintendent Wright was a DISD policymaker or that respondeatsuperior was applicable. Id. 491 U.S. at 737, 109 S.Ct. at 2723.

The Court the n reviewed the standards for "determining where

policymaking authority lies for purposes of section 1 983" as

enunciated in the plurality opinion in St. Louis v. Praprotnik, 485

U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Jett 491 U.S. at

737, 109 S.Ct. at 2723. It stated that " "whether a particular

official has "final policymaking authority" is a question of state

law,' " id. (quoting Praprotnik, 485 U.S. at 122-24, 108 S.Ct. at

924, quoting Pembaur v. Cincinnati, 475 U.S. 469 at 483-84, 106

S.Ct. 1292 at 1300 (1986) (plurality opinion)), that "the

identification of those officials whose decisions represen t the

official policy of the local governmental unit is itself a legal

question to be resolved by the trial judge," and that:

"Reviewing the relevant legal materials, including state and

local positive law, as well as " "custom or usage" having the

force of law,' Praprotnik, supra [485 U.S.] at 124, n. 1, 108

S.Ct. at 924, n. 1, the trial judge must identify those

officials or governmental bodies who speak with final

policymaking authority for the local governmental actor

concerning the action a lleged to have caused the particular

constitutional or statutory violation at issue." J ett, 491

U.S. at 737, 109 S.Ct. at 2723.

The Court noted that the DISD "urges us to review Texas law and

determine tha t neither Principal Todd nor Superintendent Wright

possessed the authority to make final policy decisions concerning

the transfer of school district personnel" and that "Jett seems to

concede that Principal Todd did not have policymaking authority as

to employee transfers

... but argues that Superintendent Wright had

been delegated [such] authority...." I d. 491 U.S. at 738, 109

S.Ct. at 2723. The Court then concluded by stating:

"We decline to resolve this issue on the record before us. We

think the C ourt of Appeals, whose expertise in interpreting5 A new trial might be required in that instance—indeed would

be under our prior opinion—because the jury charge did not

condition DISD's liability on a finding (and the evidence did not

establish as a matter of law) that "Wright knew or believed that

(or, perhaps, was consciously indifferent t o whether) Todd's

recommendation was ... based" on Jett's race or exercise of First

Amendment rights. Jett, 798 F.2d at 761. See note 3, supra.

6 The only evidence of DISD policy on discrimination was a

written policy adopted by the DISD board of trustees that included

the following:

"On the basis of an individual's race, color, religion,

sex, national origin, or age, the District shall not fail

or refuse to hire or discha rge, nor shall it otherwise

discriminate against any individual with respect to

compensation, terms, conditions, or privileges of Texas law is greater than our own, is in a better position to

determine whether Superintendent Wright possessed final

policymaking authority in the area of employee transfers, and

if so whether a new trial is required to determine the

responsibility of the school district for the actions of

Principal Todd in light of this determination.... We remand

the case to the Court of Appeals for it to determine where

final policymaking authority as to employee transfers lay in

light of the principles enunciated by the plurality opinion in

Praprotnik and outlined above." I d. 491 U.S. at 738, 109

S.Ct. at 2724 (emphasis added).

Preliminarily, we obser ve that the Court's remand order

focuses on whether Superintendent Wright, not Principal Todd, had

the requisite rel evant policymaking authority. There is no

evidence that Principal Todd had such authority, and Jett does not

claim otherwise. We further note that the Court adverted to the

possibility of a new trial only if it were determined that

Superintendent Wright had such policymaki ng authority. 5 In this

connection, there is no evidence or claim of any practice or custom

of transferring DISD personnel on the basis of race, the exercise

of First Amendment rights, or similar constitutionally proscribed

basis. The only evidence of official DISD policy in this respect

was that it proscribed any such action. 6 Thus, the only possibleemployment; nor shall the District limit, segregate, or

classify its employees, or applicants for employment, in

any way that would deprive or tend to deprive any

individual of employment opportunities or otherwise

affect the individual's status as employee."

The only evidence respecting DI SD policy concerning basing

employee transfers on their First Amendment protected speech

was the following testimony of Superintendent Wright on

examination by Jett's counsel:

"Q. Surely, Mr. Wright, i t is not consistent with your

own policy and the policy of the DISD to use as a reason for demotion or transfer the public speech or remarks

made by one of your employees, is it?

A. Not at all."

7 Section 23.023 provides that districts "with 64,000 or more

students in average daily attendance shall be under the management

and control of a board of nine trustees." bas is for DISD liability is if Superintendent Wright "possessed

final policy making authority as to employee transfers," a question

that the Court has directed be decided "in light of the principles

enu nciated by the plurality opinion in P raprotnik and outlined

above." Jett, 491 U.S. at 738, 109 S.Ct. at 2724.

The Praprotnik plurality and the Supreme Court's opinion in

Jett make clear that this is a question of state law. Texas law is

clear that final policymaking authority in an indepen dent school

district, such as the DISD, rests with the district's board of

trustees. Texas Education Code § 23.01 provides that "The public

schools of an independent school district shall be under the

control and management of a board of seven trustees." 7 The

Education Code further provides that "[t]he trustees shall have the

exclusive power to manage and govern the public free schools of the

district," id. § 23.26(b) ( emphasis added), and that "[t]he

trustees may adopt such rules, regulations, and by-laws as they may8 After the events here in issue, the Texas legislature enacted

section 13.351 of the Education Code (Acts 1984, 68th Leg., 2nd

C.S., ch. 28, art. III, part F, § 1), which pro vides that "[t]he

superintendent is th e educational leader and the administrative

manager of the school district." deem proper." I d. § 23.26(d). Nothing in the Texas Education Code

purports to give the Superintendent any policymaking authority or

t he power to make rules or regulations, whether as to teacher or

teacher/coach transfers or otherwise. 8 It is to be noted that the

Education Code gives the board of trustees not only what might be

described as a form of legislative power over the district they

serve—the power to make "rules, regulations and by-laws"—but also

a form of executive power, the power to "control" and the

"exclusive" power to "manage" as well as to "govern" the district.

This has been recognized in Texas appellate court decisions.

Thus, in Pena v. Rio Grande City Consolidated Independent School

District, 616 S.W.2d 658 (Tex.Civ.App.—Eastland, 1981, n.w.h.) the

cour t held that the superintendent of an independent school

district was not an "officer" of the district for purposes of

Tex.Rev.Civ.Stat.Ann. art. 5996a (Vernon Supp.1980-81), which

prohibited "any officer of any

... school district" fr om voting

for, confirming, or appointing to "any ... employment or duty ...

any person" within a certain degree of relationship to the officer.

To determine "officer" status, th e court applied the test of

whether the individual's exercise of governmental power was "

" largely independent of the control of others. ' " I d. at 660. It

held that the superintendent did not meet that te st. It also

stated in this connection that "[a] superintendent is m erely an

employee or agent of the school board," id. at 659 (emphasis9 This six-page policy governed both voluntary and involuntary

transfers. Provisions respecting involuntary transfers included

those arising from reduced enrollment or budget (providing, inter

alia, for selection "based on the amount of seniority within

certified fields, subject to departmental/extracurricular duties"

and for restoration to position if justified by subsequent

enrollment or budget increase before instruction had begun) and

those for other reasons. As to the latter, the policy provides:

"Any time during a school year that an immediate

supervisor wishes to request the transfer of an employee

for the ensuing school year, he or she shall complete the

prescribed form, conduct a conference with the employee,

secure the signature of the employee and forward the form

to the office of the Subdistrict assistant

superintendent. The Subdistrict assistant superintendent

shall receive the request and iss ue an approval or added), and "[a] school superintendent merely performs fu nctions

delegated to him by the trustees who do not by such delegation

abdicate their statutory authority or control." I d. at 660

(emphasis added). The P ena opinion was cited with approval in

Hinojosa v. State, 648 S.W.2d 380 (Tex.App., Au stin, 1983,

discretionary review refused), where another Texas appellate court

stated "the Education Code

... gives the trustees the e xclusive

power to manage and govern the school district. The superintendent

and his subordinates were but employees or agents of the trustees."

Id. at 386 (emphasis in original). We are aware of no decision

which holds t hat under Texas law a school superintendent has

policymaking authority. Indeed, Jett does not argue to the

contrary.

Jett does contend that the DISD trustees had delegated final

policymaking authority as to employee transfers to Superintendent

Wright. He points to the fact that a DISD policy adopted by the

board of trustees made the superintendent the final decisionmaker

on an employee's challenge to his or her proposed transfer, 9 and todenial. If the request is approved, it shall then be

forwarded to the personnel services department for

processing, pending vacancies."

The policy provides for appeal as follows:

"For the purpose of this policy, the appeal procedure is

available only for those receiving involuntary transfers

and shall not be deemed a formal grievance. District

intent is to provide an expedited hearing for employees

involuntarily transferred who feel that District policies

were violated, action was arbitrary or c apricious, or

that constitutionally protected rights were violated.

Formal appeals shall be heard at the General

Superintendent level, and the General Superintendent

shall exercise final jurisdiction. Employees requesting

hearings shall do so in a ccordance with the following

guidelines:

1. Within ten days after receipt of involuntary transfer

notice, employees shall call or write the employee

relations office to schedule an appointment to

discuss the transfer and relate d concerns for the

appeal.

2. The employee relations office shall make every effort

to resolve the problem informally.

3. If efforts to resolve the problem informally are not

successful, an appeal committee shall be

established. The committee shall be composed of:

a. One classroom teacher.

b. One principal.

c. One ombudsperson appointed by the General

Superintendent.

4. The committee shall cond uct a hearing that affords

all parties the right to present information

according to procedures prescribed by the

committee.

5. The committee shall issue an advisory decision to the

General Superintendent.

6. The General Superintendent shall review the advisory

decision of the committee and issue a decision that

shall be final and binding." Superintendent Wright's test imony that he was the finaldecisionmaker in instances where a teacher/coach objected to his

proposed transfer.

However , that Superintendent Wright may have been delegated

the final decision in the cases of pr otested individual employee

transfers does not mean that he had or had been delegated the

status of policym aker, much less final policymaker, respecting

employee transfers. In P embaur and Praprotnik the Court carefully

distinguished between those having mere decisionmaking authority

and those having policymaking authority. P embaur first noted that

"municipal liability may be impos ed for a single decision by

municipal policymakers under appropriate circumstances," id. 475

U.S. at 480, 106 S.Ct. at 1298, and that "where action is directed

by tho se who establish governmental policy, the municipality is

equally responsible whether that action is to be taken only once or

to be taken repeatedly." Id. 475 U.S. at 481, 106 S.Ct. at 1299.

Pembaur went on, however, to emphasize that, for the municipality

to be liable, the decision (whether or not one of policy) must be

made by an official with final policymaking authority in respect to

the matter decided, viz:

"Municipal liability attaches only where the decisionmaker

possesses final authority to establish municipal policy with

respect to the action ordered. [footnote omitted] The fact

that a particular official—even a policymaking official—has

discretion in the exercise of particular functions does not,

without more, give rise to munici pal liability based on an

exercise of that discretion. [citation and footnote omitted]

The official must also be responsible for establishing final

government policy respecting such activity before the

municipality can be held liable. 12 "

—————

12 Thus, for example, the County Sheriff mmay have discretion

to hire and fire employ ees without also being the county

official responsible for establishing county employmentpolicy. If this were the case, the Sheriff's decisions

respecting employment w ould not give rise to municipal

liability, although similar decisions with respect to law

enforcement practices, over which the Sheriff is the official

policymaker, would give rise to municipal liability. Instead,

if county employment policy was set by the Board of County

Commissioners, only that body's decisions would provide a

basis for co unty liability. This would be true even if the

Board left the Sheriff discretion to hire and fire employees

and the She riff exercised that discretion in an

unconstitutional manner; the decision to act unlawfully would

not be a decision of the Board. However, if the Board

delegated its power to est ablish final employment policy to

the Sheriff, the Sheriff's decisions w ould represent county

policy and could give rise to municipal liability." Id. 475

U.S. at 484 & n. 12, 106 S.Ct. at 1299-1300 & n. 12.

The example of the County Sheriff and Board of County

Commissioners clearly reflects that the Court sharply distinguished

between decisionmak ers and final policymakers. This example was

elevated from footnote to text in Praprotnik, where the Court held

that it was error to base liability on the employment decisions of

officials lacking final policymaking authority in that area, viz:

"This case therefore resembles the hypothetical examp le in

Pembaur: "[I]f [city] employment policy was set by the [Mayor

and Aldermen and by the Civil Service Commission], only

[those] bod[ies'] decisions would provide a basis for [city]

liability. This would be true even if the [Mayor and Aldermen

and the Commission] left the [appointing authorities]

discretion to hire and fire employees a nd [they] exercised

that discretion in an unconstitutional manner....' 475 U.S.,

at 483, n. 12, 106 S.Ct., at 1300, n. 12." P raprotnik, 485

U.S. at 130, 108 S.Ct. at 927.

Praprotnik similarly states that "the authority to make municipal

policy is necessarily the authority to make final policy.... When

an official's discretionary decisions are constrained by policies

not of that official's making, those policies, rather than the

subordina te's departures from them, are the act of the

municipality," id. 485 U.S. at 127, 108 S.Ct. at 926 (emphasis in

original), and that "[s]imply going along with discre tionary1 0 "Nor do we believe that we have left a "gaping hole' in §

1983 that needs to be filled with the v ague concept of " d e facto

final policymaking authority.' P ost [485 U.S., at 144, 108 S.Ct.],

at 935. Except perhaps as a step towards overruling M onell and

adopting the doctrine of respondeat superior, ad hoc searches for

officials possessing such "de facto' authority would serve primarily to foster needless unpredictability in the application of

§ 1983." Id. decisions made by one's subordinates, however, is not a delegation

to them of the authority to make policy." I d. 485 U.S. at 130, 108

S.Ct. at 927. The Court then observed:

"It would be a different matter if a particular decision by a

subordinate was cast in the form of a policy statement and

expressly approved by the supervising policymaker. It would

a lso be a different matter if a series of decisions by a

subordinate official manifested a "custom or usage' of which

the supervisor must have been aware. See supra, 485 U.S. at

127, 108 S.Ct. at 926. In both those cases, the supervisor

could realistical ly be deemed to have adopted a policy that

happened to have been formulated or initiated by a

lower-ranking official." I d. 485 U.S. at 130, 108 S.Ct. at

926-27.

Finally, Praprotnik e xpressly rejected the concept of " d e facto

final policymaking authority." Id. 485 U.S. at 129, 108 S.Ct. at

927. 10

While Praprotnik and Pembaur do not expressly use the word

"final" in their examples of officials who have decisionmaking but

not policymaking authority, that much seems clearly implied in the

description of the situation as one where the policymaking

authority "left the [decisionmaking official] discretion to hire

and fire employees," there being no suggestion of any qualification

s uch as "initial" discretion or the decisionmaker's action being

subject to appeal or the like. The same conclusion follows from

Praprotnik 's statement as to discret ionary decisions of an

official being constrained by policies not of his own making, as11 The Auriemma Court observed:

"On the plaintiffs' own theory, the buck stops with Fred

Rice. (The complaint alleges that Rice cleared his

decisions with Harold Washin gton, then the mayor, but

this is immaterial; the mayor is an executive, not

legislative, official in Chicago's system of government.)

Unless an entirely executive decision establishes

municipal policy because it is final, the plaintiffs must

lose.

To state the issue in this way is to imply the

answer. For what can it mean to say "no vicarious

liability' unless there is a distinction between creation

and implementation of rules? Any city acts exclusively

through agents; the city is just a name for a complex of

persons. If it were enough to point to the agent whose

act was the final one in a particular case, we would have

vicarious liability. Action in the course of one's duty

is the basis of vicarious liability. That a particular

agent is the apex of a bureaucrac y makes the decision

"final' but does not forge a link between "finality' and

"policy'.... One may doubt the footing of M onell

... but

that decision is not to be sabotaged by calling the chief

bureaucrat who signs off on a particular action the

city's "policymaker' for that action." Id. at 399-400.

" "[R]esponsibility for making law or setting policy'—the

objec tive under P raprotnik of our search through local

law—is authority to adopt rules f or the conduct of

government. Authority to make a final decision need not

imply authority to establish rules. In Chicago it does

not. The Superintendent of Police in Chicago had no

power to countermand the statutes regulating the

operation of the department. The chief has "complete

authority to administer the depar tment in a manner

consistent with the ordinances of the city, the laws of

the state, and the rule s and regulations of the police

board.' ... If, in the course of selecting senior staff, that applies even to individual decisions which are not reviewable.

The Seventh Circuit expressly took this view of the matter in

Auriemma v. Rice, 957 F.2d 397 (7th Cir.1992), where it held that

the Chicago Superintendent of Police, Fred Rice, was not a city

policymaker respecting police officer demotions that were allegedly

racially motivated, notwithstanding that he had final authority to

make the complained of demotions. 1 1 We took essentially the sameRice discriminated on account of race and politics, he

violated rather than implemented the policy of Chicago."

Id. at 401.

1 2 We specifically identified this rejected line of authority

as that "discussed in part 3 [of our initial en banc opinion, 728

F.2d 762] and represented in particular by our opinion in Schneider

v. City of Atlanta, 628 F.2d 915 (5th Cir.1980)." B ennett, 735

F.2d at 862. Part 3 of our initial en banc opinion in B ennett, 728

F.2d 762 at 766, described Schneider as follows:

"We stated in Schneider v. City of Atlanta, 628 F.2d

915 (5th Cir.1980), that in those areas where a city

officer "is the final authority or ultimate repository of

[city] po wer his official conduct and decisions must

necessarily be considered those of one "whose edicts or

acts may fairly be said to represent official policy" for

which the [city] may be held responsible under § 1983.'

Id. at 920."

1 3 These included those identified in notes 6 and 9, supra, and

the DISD's one hundred-plus-page "Professional Personnel Guide." approach in the en banc opinions in Bennett v. City of Slidell, 728

F.2d 762, 735 F.2d 861 (5th Cir.1984), where "we rejected the line

of authority

... which would permit policy or custom to be

attributed to the city itself by attribution to any and all

officers endowed with fin al or supervisory power or authority."

Id. 735 F.2d at 862. 12

Although several policies of the DISD board of trustees were

put in evidence, 13 none purported to grant Superinten dent Wright

policymaking authority respecting employee transfers. Nor is there

any other evidence that the DISD granted Superintendent Wright such

policymaking authority.

Jett relies on the testimony of Superintendent Wright that he

considered whether the DISD policy on employee transfers set out in

note 9 above applied to those, such as Jett, who were coaches as

well as teachers, as opposed to applying only to those who were1 4 Superintendent Wright's testimo ny in this respect includes

the following:

"Q. And you were then of the opinion and still are that

that was the only procedure, that is the informal meeting

and conference that had trans pired that existed within

the D.I.S.D. to deal with the Jett situation?

A. No, it was not the only procedure but it just happened

that the end results would have ended up the same because

it would still have to come to me for the final decision.

Coach Jett could have had the opportunity —whether he was

aware of it or not I am not sure— of appealing the

decision of Dr. Todd and [sic] which time I would have

appointed a panel to hear that. They would have still

made the recommendation to me. Since Coach Jett came to

me directly as Mr. Santillo direc ted him then that

procedure was bypassed.

Q. Are you in agreem ent with Dr. Todd's testimony

yesterday however that under the written transfer policy

of the District that Coach Jett actually would have been

entitled to a hearing [sic] this matter?

A. If he had asked for it before he came to me and if he

had wanted it then we could have gone through a formal

hearing process but I considered that he considered h e was having his hearing when he was there with me.

Q. Okay. I see. Well, in fact—let me just find that

policy real quickly. Looking at Plaintiff's Exhibit 9

under your Provisions for Involuntary Transfer it states

that the first thing that h as to be done is that the

immediate supervisor shall complete the prescribed form,

conduct a conference with the emp loyee, secure the

signature of the e mployee and forward the form to the

office of the sub District Superintendent, doesn't it?

A. In that case they are talking about teachers.

Q. Excuse me. Is that what it says?

A. That is what it says, yes.

Q. And it doesn't say teacher. It says any employee,

right?

A. Right. mer ely teachers, to be "a gray area" in which he "had developed

some practices" he "attempted to follow." 14 This does not sufficeQ. And if the transfer provisions were pertinent just as Dr. Todd said yesterday he didn't follow that, did he?

A. Not per se, no.

Q. Well, he didn't do any of that, did he?

A. He made a recommendation to his immediate supervisor

th at Dr. Todd be involuntarily transferred to another

position.

Q. I think you misspoke. You said Dr. Todd. You mean

Dr. Todd made a recommendation to his supervisor that he

be transferred?

A. Yes, sir.

Q. Yes, sir. But it doesn't say to his supervisor, does

it? It says it shall be sent to the office of the sub

District Assistant Superintendent, doesn't it?

A. In the case of a teacher that would apply. In the

case of a Coach or an Athle tic Director it would go to

the Athletic Department.

Q. First of all, I thought you told us a few minutes ago that the policy of the District where they say teachers

are customarily applied to Coaches and Athletic

Directors?

A. Except that we h ave a gray area that is not covered

here, Mr. Hill, in that Area Superintendents don't make

the decision on Athletic Directors and Co aches per se.

That is left up between the Athletic Department and the

principal and myself.

Q. Is there any written statement of that?

A. No, sir, there is not.

Q. Well, in addition to that Coach Jett was being

transferred involuntarily and a teacher too, wasn't he?

A. Correct.

Q. So these p olicies would be pertinent to Coach Jett,

wouldn't they?

A. That is what I meant a moment ago that he could have

made such a request if he w as aware of it. I doubt he

was aware of it.Q. Now, with respect to Coaches and Athletic Directors I

believe you have indicated several times here there is no specific policy that covers that?

A. Not per se, no.

Q. But you have developed some practices that you attempt

to follow within the District when those problems arise?

A. That is correct.

Q. And typically how is that situation handled?

A. Well, we try to follow the same procedures of trying

to make sure that employees' considerations, employees

are considered and the person making the recommendation

considered and in the case of Athletic Director and Coach

then it generally goes to the Administrator of Athletics

which is Mr. John Kincaid and the principal to help work

out those differences and then if it can't be resolved

there then it is supposed to go t o their immediate

supervisor and then on up the ladder to me which I am the

end of the appeal just like I am with teachers or anyone

else.

Q. (By Mr. Townend) Superintendent Wright, when a problem

arises between a principal and a Head Coach such as with

Dr. Todd and Mr. Jett, can you de scribe the normal

approaches or the normal ways in which that probl em is

dealt with within the District?

[Court overrides objection by Jett's counsel.]

A. Well, it is not only normal policy and practice but it

is not stipulated personnel policy but it is stipulated

in other administrati ve policies that any problem that

arises as far as an employee, it goes through channels.

In the case of athletics it goes from the principal to

the Administrator for Athletics and to the Assistant

Superinte ndent for district wide programs who has the

responsibility for Athletics and from that person to the

Superintendent.

If it is a teacher problem it goes from the principal to

the Area Administrator to the Area Assistant

Superintendent to the Superintend ent so there is a

channel for any problem that occurs that would be handled

and that is not only normal but it is prescribed by

policy under administration, not only personnel."

(Emphasis added). to establish that the DISD board of trustees had delegated to1 5 In other parts of the policy it does refer to "teachers" and

to "coaches," and, indeed, to "nurses," thus also indicating that

the broader word "employee" or "employees" was used advisedly.

1 6 Wright did not testify that the three-person hearing

committee procedures (see quoted material in last paragraph of note

9, supra ) were different for coaches or teacher/coaches than for

teachers. Superintendent Wright final policymaking authority concerning

employee transfers. Wright's testimony contains no such assertion.

He was merely interpreting or applying the written policy of the

DISD trustees, and, apparently, he was doing so erroneously, as the

parts of the policy addressed (see note 9, s upra ) speak of

"employee" or "emplo yees," not teachers or coaches or

teacher/coaches. 15 Moreover, Wright's testimony in this regard is

plainly directed only to the particular administrative channel to

be initially followed by the supervisor requesting a transfer be

made, namely whether the request is to go to "the Subdistrict

assistant superintendent" as the policy says (see quotation at end

of first paragraph of note 9, s upra ) or whether, as Wright

construed it, that did not apply to coach es (or teacher/coaches)

and that instead in such a case the supervisor's request would

initially go to th e DISD's Athletic Department. 1 6 Even if Wright

had the authority to provide for such a bureaucratic channel for

teacher/coach transfer requests to initially follow, this would not

suffice to show that he had relevant substantive policymaking

authority respecting teacher/coach tran sfers, which is the only

issue here.

Jett contends that Wright had a policy of approving

involuntary transfe rs sought by a principal even though the17 Principal Todd made various specific complaints about Jett,

including Jett's poor attendance at faculty meetings, equipment

purchasing policies, and lesson plan preparation. Wright testified

that he discussed these matters with Jett, who told Wright "he

[Jett] thought

... that whenever he [Todd] forced him [Jett] to

come to teachers' meetings or faculty meetings and keep records of

inventory and things like that that he [Jett] thought that was

unreas onable," and that Wright then told Jett "I don't consider

that unreasonable." Wright further testified:

"... I told Coach Jett that I felt that Dr. Todd was only

carrying out his responsibilities as principal and that

those were the kinds of things I expected him to do and

that if, you know, if he was being unreasonable that was

one thing but as far as the actual accountability of

expecting an accounting for money and requiring him not

make unauthorized purchases and requiring him to attend

faculty meetings or requiring he have lesson plans, all

of those were in the area of expectation of the teacher

or Coach or any other employee in that building."

Wright further testified:

"Q. (By Mr. Townend) In your first c onference did Mr.

Jett suggest to you that Dr. Todd be transferred?

A. Yes, sir, he did. He felt that Mr. McWhorter had been

unsucc essful and had been transferred and that he had

such a successful record that he felt that Dr. Todd was

the one in error. That is when I came to the conclusion

that there were differences that were not resolvable and

I told Coach Jett at the time that if I have to make a

decision between the principal an d the coach it is

obvious that the principal is responsible for the school

and would be th e one to stay u nless he was in error

himself and I hadn't found anywhere where Dr. Todd was in

error. " (Emphasis added). principal was motivated by the employee's race or exercise of First

Amend ment rights, so long as there was an irreconcilable

personality conflict between the principal and the em ployee.

Assuming, arguendo, that there was sufficient evidence for the jury

to infer that such a cons ideration motivated Wright's action in

respect to Jett, it was certainly not the basis Wright articulated

for his decision, 17 and there is no evidence that it was his policy.

Jett relie s on Wright's testimony that "[w]e had something herethat is unfortunate that happens a lot of time between two people

and when it occurs someone has to give and I have to make that

judgment decision as to who has to go and in this case it was coach

Jett." This is not inconsistent with Wright's testimony (see note

17) that he approved the Jett transfer because the differences were

irreconcilable "and I haven't found anywhere where Dr. Todd was in

error," and certainly does not suppo rt an inference that Wright

generally approved transfer recommendations despite their being

unconstitutionally motiva ted. More significantly, such would be

contrary to the policies of the DISD board of trustees and there is

nothing to suggest that they knew or can be assumed to have known

that Wright acted on such a basis. As previously observed, there

is no evidence of any other unconstitutionally motivated employee

transfer (or other personnel action) being taken or approved by

Wright. This is a single incident case.

The evidence is simply not sufficient to support a finding

that Superintendent Wright possessed final policymaking authority

in the area of employee transfers. Under Texas law such

p olicymaking authority rested exclusively with the DISD board of

trustees, and there is no evidence they had delegated it to

Superintendent Wright. Jett in substance argues for the kind of

"de facto final policyma king authority" rejected in P raprotnik.

485 U.S. at 129, 108 S.Ct. at 927. Moreover, there is no evidence

that Superintendent Wright's decision in Jett's case either "was

cast in the form of a pol icy statement and expressly approved by

the" DISD board or that "a series of decisions by" Wright in this

area "manifested a "custom or usage' of which the" DISD board "musthave been aware." Praprotnik, 485 U.S. at 130, 108 S.Ct. at 926-

27.

Accordingly, the judg ment against the DISD and in favor of

Jett is reversed and the cause is remanded with directions to enter

judgment in favor of the DISD as respects all of Jett's claims

against it.

REVERSED and REMANDED with DIRECTIONS

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