The opinion of the court was delivered by: Mihm, District Judge.
On November 12, 1981, Plaintiff, Terry C. Knapp, a public high
school teacher, filed suit against Peoria School District No. 150
and three individually named Defendants, Harry Whitaker,
Superintendent of Schools; Russell McDavid, Principal of Woodruff
High School; and John Hatton, Assistant Principal, alleging an
abridgment of his First Amendment right to free speech and
further alleging that Defendants had retaliated against him for
exercising his First Amendment rights. An additional Defendant,
George Burdette, the Assistant Superintendent of Schools, was
named at a later date.
After a jury trial, which began January 25, 1983, Plaintiff was
awarded $514,333 in compensatory damages.*fn1 Immediately prior
to trial the Plaintiff filed a motion for partial summary
judgment, requesting the Court to rule that his speech was, as a
matter of law, protected by the First Amendment and that the
actions taken by the Defendants, in response to Plaintiff's
protected speech, constituted a violation of his First Amendment
rights. At trial, the Court ruled that Mr. Knapp's speech was
protected and that the Board policy, relied on by the Defendants
as justification for their actions against Plaintiff, was
unconstitutional on its face as well as the manner in which it
was applied to Mr. Knapp.
Following trial, the Defendants' motions for judgment
notwithstanding the verdict, for a new trial, or amendment of the
judgment were denied by the Court.
Despite Mr. Whitaker's statements, Mr. Knapp was allowed to
speak by the board members and related to those present what he
perceived to be the problems with the grievance procedure.
On April 29, Mr. Knapp was given an evaluation which, among
other things, admonished him for talking to board members both
individually and at public meetings about his personal employment
problems (in violation of board policy 2111.11) and ordered him
to refrain from doing so in the future. He was placed in a
remediation category which is one step above discharge.
On June 16, 1981, he was removed from his coaching position at
Woodruff High School. The Defendants have asserted that Plaintiff
was removed from his coaching position because of his phlebitis
condition. Later, in the fall of 1981, Knapp's paid study hall
was taken away from him because of his remediation status and at
the end of the 1981-82 school year he was given a second critical
evaluation and was involuntarily transferred from Woodruff High
School to Harrison Grade School.
This case has been remanded to the District Court for
reconsideration in light of the Supreme Court's decision in
Connick v. Meyers, ___ U.S. ___, 103 S.Ct. 1684, 75 L.Ed.2d 708
(1983). However, I do not believe that the Connick case requires
a reversal of either the Court's or the jury's earlier findings.
In Connick, an assistant district attorney in New Orleans, after
objecting to her transfer to another section of the criminal
court, circulated a questionnaire to her fellow staff members.
The purpose of the questionnaire was to solicit:
One of the other assistant district attorneys contacted the
district attorney for the Orleans Parish, Harry Connick, and
informed him that Meyers was creating a "mini insurrection"
within the office. Connick
then met with Meyers and told her that she would be terminated
for her refusing to accept the transfer and that her circulation
of the questionnaire was "an act of insubordination".
The Court, in examining whether the plaintiff's rights had been
violated, first focused on whether Meyer's questionnaire could be
"characterized as constituting speech on a matter of public
concern". Connick, ___ U.S. at p. ___, 103 S.Ct. at p. 1689.
After determining that one of the questions in the questionnaire
"touched upon a matter of public concern, and contributed to her
discharge", the Court was then required to determine "whether
Connick was justified in discharging Meyers". Connick, ___ U.S.
at p. ___, 103 S.Ct. at p. 1691.
The Court concluded:
"Meyers' questionnaire touched upon matters of public
concern in only a most limited sense; her survey, in
our view, is most accurately characterized as an
employee grievance concerning internal office policy.
The limited First Amendment interest involved here
does not require that Connick tolerate action which
he reasonably believed would disrupt the office,
undermine his authority, and destroy close working
relationships. Meyers' discharge therefore did not
offend the First Amendment." Connick, ___ U.S. at p.
___, 103 S.Ct. at p. 1693.
I believe that while Connick may be factually distinguishable
from our case, even the application of the principles set forth
in Connick do not support a change in any earlier rulings by this
Following the principles set forth in Connick, the Court must
first consider whether Mr. Knapp's speech involved a matter of
"public concern". As stated in Connick:
"Our task, as we defined it in Pickering [Pickering
v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731,
20 L.Ed.2d 811 (1968)], is to seek `a balance between
the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the
interest of the State, as an employer, in promoting
the efficiency of the public services it performs
through its employees'." 391 U.S., at 568 [88 S.Ct.,
at 1734]. Connick, ___ U.S. at p. ___, 103 S.Ct. at
"Pickering, its antecedents and progeny, lead us to
conclude that if Meyers questionnaire cannot be
fairly characterized as constituting speech on a
matter of public concern, it is unnecessary for us to
scrutinize the reasons for her discharge. When
employee expression cannot be fairly considered as
relating to any matter of political, social, or other
concern to the community, government officials should
enjoy wide latitude in managing their offices,
without intrusive oversight by the judiciary in the
name of the First Amendment." Connick, ___ U.S. at p.
___, 103 S.Ct. at p. 1689.
"We hold only that when a public employee speaks not
as a citizen upon matters of public concern, but
instead as an employee upon matters only of a
personal interest, absent the most unusual
circumstances, a federal court is not the appropriate
forum in which to review the wisdom of a personnel
decision taken by a public agency allegedly in
reaction to the employee's behavior." Connick, ___
U.S. at p. ___, 103 S.Ct. at p. 1690.
Conversely, an employee's speech on matters of public concern
occupies the "highest rung of the hierarchy of First Amendment
values" and is entitled to special protection. Connick, slip
Opinion at p. 6 (citations omitted).
Whether certain speech may be considered a matter of public
concern is determined by the "content, form, and context of a
given statement, as revealed by the whole record". Connick, ___
U.S. at p. ___, 103 S.Ct. at p. 1689.
The issue of whether Mr. Knapp's speech involved matters of
"public concern" was not really developed before or
during the trial.*fn4 However, it is clear that the thrust of
his meeting with individual board members and at the board
meeting was to make known the problems with the grievance
procedure. Mr. Knapp made his comments in response to the board
members' express request that they be made aware of any problems
any teacher had with the grievance procedure. The board members
were anxious to learn of Mr. Knapp's problems and even requested
that he contact them in the future.
In contrast, the Plaintiff in Connick distributed the
questionnaire solely in response to her displeasure with her
transfer. Furthermore, as the Court noted in Connick:
"Meyers did not seek to inform the public that the
district attorney's office was not discharging its
governmental responsibilities in the investigation
and prosecution of criminal cases nor did Meyers seek
to bring to light actual or potential wrongdoing or
breach of public trust on the part of Connick and
others." Connick, ___ U.S. at p. ___, 103 S.Ct. at p.
However, this is precisely what Mr. Knapp was attempting to do
in this case. The effectiveness and proper operation of the
grievance procedure was an important issue to the teachers in
District 150 and could potentially affect the efficient operation
of the school system as a whole. His conversations with the board
members and at the board meeting were an attempt by him to make
the issues known and seek to have the problems as he perceived
Furthermore, some of the examples cited by Mr. Knapp indicating
the ineffectiveness of the grievance procedure were clearly and
unequivocably matters of public concern. For instance, Mr.
Knapp's concern with the school district's liability insurance
affected not only the teachers in the school district but also
the students and their parents, who occasionally provided
transportation to athletic events. Indeed, the Defendants'
original denial of Mr. Knapp's grievance on this issue was
because they felt it was in the nature of a "class action" rather
than merely a personal matter.
Accordingly, the Court finds that Mr. Knapp's speech, with its
focus on the operation of the grievance procedure, was a matter
of public concern.
At this point, the Court would like to indicate its complete
disagreement with the statement on page 14 of the Defendant's
Memorandum on Remand which states:
"If any or all of Knapp's speech was unprotected,
Defendants must be granted judgment notwithstanding
the verdict, and Plaintiff must be `out of court'."
This result is entirely contrary to the Court's decision in
Connick. The Court in Connick stated:
"Because one of the questions in Meyers' survey
touched upon a matter of public concern, and
contributed to her discharge we must determine
whether Connick was justified in discharging Meyers."
Connick, ___ U.S. at p. ___, 103 S.Ct. at p. 1691.
The Defendants seem to have inverted the holding of the Connick
case. This Court must determine whether any or all of Knapp's
speech was protected rather than unprotected as suggested by the
Defendants. If any of the speech is found to be protected (as the
Court has already indicated it is) then the Court must move to
the next stage of the Connick test and balance the interests of
the school district in the efficient operation of its system with
the Plaintiff's right to speak on matters of public concern.
Initially, with regard to the balancing test, the Court notes
that there were no allegations by the Defendants that Plaintiff's
conduct was in any way whatsoever disruptive in nature. In fact,
for the Defendants stated at the jury instruction conference:
"We are not going to have a factual question here for
the jury on whether or not the speech disrupted the
activities at Woodruff High School. The jury is not
going to be called upon to answer that question
because we don't have a disruption issue here."
Thus, Mr. Knapp's conduct could not be viewed as a "mini
insurrection" as was the case in Connick. Further, there is no
evidence that Knapp's conduct interfered with his ability to
perform his responsibilities.
In Connick the Court considered the manner, time, and place in
which the protected speech was made to be a relevant factor in
the balancing test. There the Court noted that the questionnaire
was prepared and distributed at the office in a manner which
distracted Meyers as well as their colleagues from their official
work. Again, this does not appear to be the case with Mr. Knapp's
conduct. His speech in the fall of 1980 was done in response to
the board members' request that they be informed of problems with
the grievance procedure. As noted previously, the board members
encouraged the initial contact from Mr. Knapp as well as any
subsequent information he could relate to them regarding the
grievance procedure. In the spring of 1981, Mr. Knapp contacted
certain board members requesting that they sponsor him for the
April 6 school board meeting.*fn5 After receiving his
sponsorship, Mr. Knapp spoke at the board meeting regarding the
operation of the grievance procedure.
At no time during his conversations with the board members was
he informed that he was in violation of board policy nor did any
of the members seek to have him disciplined for his actions.
The Defendants have attempted to justify their actions based on
board policy 2111.11, which requires that communication between
any employee and a board member must be made through the
Superintendent of Schools. Board policy 2111.11, listed under the
"Powers and Duties" of the Superintendent, states:
"Communicates, or cause to be communicated, to all
employees, all actions of the Board relating to the
several employees, and all communications made to the
Board shall be through him."
Mr. Knapp was first informed of board policy 2111.11 at his
meeting with Superintendent Whitaker on April 1, 1981.
This Court believes that board policy 2111.11 was
unconstitutional both on its face and its application to Mr.
Knapp. The requirements of policy 2111.11 were not limited to
personal or non-public matters (or written as opposed to oral
communication) but included any communications to a board member.
By channeling all communications to board members through the
Superintendent, the Superintendent is given complete control in
determining which items will reach the ears of the board members.
The policy sets no guidelines or limits on the Superintendent's
discretion in this area.
The application of this policy in the case before us
demonstrates its unconstitutionality. In the fall of 1980 Mr.
Knapp communicated with board members with the knowledge of
Superintendent Whitaker and no action was taken. However, in the
spring of 1981, when the school administration apparently began
to disapprove of Plaintiff's actions, Mr. Whitaker cited policy
2111.11 in an attempt to silence Mr. Knapp.
Board policy 2111.11 is not contained in the teachers job
description but is only found in the Superintendent's job
description. There is no indication that any teacher had been
informed of its existence nor had any teacher ever been
disciplined for its violation. In fact, several teachers
testified that they had communicated both orally and in writing
to board members without channeling their communications through
Thus, the Court ruled, as a threshold matter, that policy
2111.11 was violative of the First Amendment. Accordingly, the
Defendants could not rely on policy 2111.11 to justify their
reprimand of the Plaintiff or for restricting his speech to board
members both individually and in public meetings.
Finally, the Court must consider the context in which the
dispute arose. If an employee's speech involves "an employment
dispute concerning the very application of that policy to the
speaker", the employer's belief that his authority may be
subverted is entitled to greater weight. See Connick, ___ U.S. at
p. ___, 103 S.Ct. at p. 1693.
While Mr. Knapp was affected by the issues he presented to the
board members the record does not indicate that he was motivated
solely by personal interest. The grievance procedure was listed
by the teachers as one of the three most important issues in the
collective bargaining negotiations in the fall of 1980. It was a
topic on which the board members felt they were not fully
informed and encouraged teachers to make known to them any
relevant facts regarding the grievance procedure.
Also, as mentioned previously, the liability insurance issue
cited by Mr. Knapp affected not only Mr. Knapp and all the
teachers in the district but the students and their parents as
well. Thus it could not be said that Plaintiff, in reporting to
board members the problems with the grievance procedure, was
motivated by purely personal reasons.
As to Defendants' comments (page 31 of their Memorandum on
Remand) that the giving of jury instruction # 10 was reversible
error, I can only say that the jury instructions in the case were
hammered out over several hours of lively debate. Instruction 10
was given because the Court concluded that the jury had to know
that the Court had determined the protected nature of the speech.
If this had not been done, the jury would have been forced to
consider the interrogatories in a vacuum. If the speech was not
protected, the interrogatories were meaningless to begin with.
Based on the foregoing discussion it is the Court's decision
that the case of Connick v. Meyers, ___ U.S. ___, 103 S.Ct. 1684,
75 L.Ed.2d 708 (1983), does not affect any of this Court's
rulings in this case and, therefore, IT IS ORDERED that the
Defendant's Motion for Reconsideration is DENIED.