                   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.     Jett v. Dallas Independent School District, 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 earlier 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   plaintiff-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 another

     *
      This decision is rendered by a quorum pursuant to 28 U.S.C.
§ 46(d).
DISD school violated his constitutional rights to equal protection

of the laws and freedom of speech.           The transfer was made on the

recommendation of Principal Todd and was ordered and approved by

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

who was not 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

the 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 individually, finding that

Principal     Todd's    transfer   recommendation       was      substantially

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

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

Defendant     Todd's     recommendation       without      any     independent

investigation."        Following remittitur of some of the damages,


      1
     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 that Todd had based
his recommendation on remarks Jett made to the media. Jett, 798
F.2d 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 district court insofar as it held Principal Todd

liable for making his transfer recommendation on the basis 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 official policy and actual or constructive

knowledge of the custom was attributable to the governing body or

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

759.3       We   further    held    that   the   same    standards    applied   to

        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
the 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 of a particular teacher-coach
would be made, also had 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 was so motivated."
Id. at 760. We noted in this connection that "Todd clearly was not
a policymaker." Id. at 761.
governmental liability under section 1981, and accordingly reversed

and remanded Jett's section 1981 claim against the DISD.    Id. at

761-763.

     The Supreme Court granted Jett's petition for certiorari 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' provided 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." Jett, 491
     U.S. at 735, 109 S.Ct. at 2722.4

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

holds that the school district may not be held liable for its

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

theory of respondeat superior."   Id. 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 Monell 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 respondeat


        4
      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." Id. 491 U.S. at 711,
109 S.Ct. at 2710.
superior was applicable.       Id. 491 U.S. at 737, 109 S.Ct. at 2723.

The Court then reviewed the standards for "determining where

policymaking authority lies for purposes of section 1983" 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 represent 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 alleged to have caused the particular
     constitutional or statutory violation at issue." Jett, 491
     U.S. at 737, 109 S.Ct. at 2723.

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

determine that 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...."         Id. 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 Court of Appeals, whose expertise in interpreting
      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."     Id. 491 U.S. at 738, 109
      S.Ct. at 2724 (emphasis added).

      Preliminarily,         we   observe   that      the    Court's   remand    order

focuses on whether Superintendent Wright, not Principal Todd, had

the   requisite        relevant    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 policymaking 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 possible

      5
      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 to 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 discharge, nor shall it otherwise
               discriminate against any individual with respect to
               compensation, terms, conditions, or privileges of
basis 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

enunciated by the plurality opinion in Praprotnik 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 independent 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 may


             employment; 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 DISD 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, it 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."
deem proper."     Id. § 23.26(d).     Nothing in the Texas Education Code

purports to give the Superintendent any policymaking authority or

the 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

court    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" from 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, the court applied the test of

whether the individual's exercise of governmental power was "

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

held that the superintendent did not meet that test.                     It also

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

employee or agent of the school board," id. at 659 (emphasis

     8
     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 provides that "[t]he
superintendent is the educational leader and the administrative
manager of the school district."
added), and "[a] school superintendent merely performs functions

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

abdicate their     statutory     authority       or   control."      Id.     at   660

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

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

discretionary review refused), where another Texas appellate court

stated "the Education Code ... gives the trustees the exclusive

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 that 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 to

    9
     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 issue an approval or
Superintendent    Wright's   testimony   that     he    was     the    final



          denial. 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 capricious, 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 accordance 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 related 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 conduct 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."
decisionmaker 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 protested individual employee

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

status of policymaker, much less final policymaker, respecting

employee transfers.   In Pembaur and Praprotnik the Court carefully

distinguished between those having mere decisionmaking authority

and those having policymaking authority.   Pembaur first noted that

"municipal liability may be imposed 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 those 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 municipal 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 employees without also being the county
     official responsible for establishing county employment
     policy.   If this were the case, the Sheriff's decisions
     respecting employment would 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 county liability. This would be true even if the
     Board left the Sheriff discretion to hire and fire employees
     and   the   Sheriff   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 establish final employment policy to
     the Sheriff, the Sheriff's decisions would 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 decisionmakers 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 example 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 and [they] exercised
     that discretion in an unconstitutional manner....' 475 U.S.,
     at 483, n. 12, 106 S.Ct., at 1300, n. 12." Praprotnik, 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

subordinate'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    discretionary
decisions made by one's subordinates, however, is not a delegation

to them of the authority to make policy."            Id. 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
     also 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 realistically be deemed to have adopted a policy that
     happened to have been formulated or initiated by a
     lower-ranking official." Id. 485 U.S. at 130, 108 S.Ct. at
     926-27.

Finally, Praprotnik expressly rejected the concept of "de 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

such 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    discretionary     decisions   of   an

official being constrained by policies not of his own making, as


         10
       "Nor do we believe that we have left a "gaping hole' in §
1983 that needs to be filled with the vague concept of "de facto
final policymaking authority.' Post [485 U.S., at 144, 108 S.Ct.],
at 935. Except perhaps as a step towards overruling Monell 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.
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.11      We took essentially the same

     11
          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 Washington, 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 bureaucracy makes the decision
             "final' but does not forge a link between "finality' and
             "policy'.... One may doubt the footing of Monell ... 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
             objective under Praprotnik of our search through local
             law—is authority to adopt rules for 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 department in a manner
             consistent with the ordinances of the city, the laws of
             the state, and the rules and regulations of the police
             board.' ... If, in the course of selecting senior staff,
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 final 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 Superintendent 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 were



           Rice discriminated on account of race and politics, he
           violated rather than implemented the policy of Chicago."
           Id. at 401.
      12
       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)." Bennett, 735
F.2d at 862. Part 3 of our initial en banc opinion in Bennett, 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] power 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."
     13
      These included those identified in notes 6 and 9, supra, and
the DISD's one hundred-plus-page "Professional Personnel Guide."
merely teachers, to be "a gray area" in which he "had developed

some practices" he "attempted to follow."14   This does not suffice

     14
       Superintendent Wright's testimony 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 transpired 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 directed him then that
          procedure was bypassed.

          Q. Are you in agreement 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 he
          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 has to be done is that the
          immediate supervisor 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 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.
Q. 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
that 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 Athletic 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 have a gray area that is not covered
here, Mr. Hill, in that Area Superintendents don't make
the decision on Athletic Directors and Coaches 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 policies 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 was aware of it. I doubt he
was aware of it.
to establish that the DISD board of trustees had delegated to



         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 to 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 describe the normal
         approaches or the normal ways in which that problem 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 administrative 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
         Superintendent 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 Superintendent 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).
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, supra ) speak of

"employee"      or    "employees,"      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, supra ) or whether, as Wright

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

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

initially go to the DISD's Athletic Department.16                    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 transfers, which is the only

issue here.

         Jett   contends      that   Wright       had   a   policy    of    approving

involuntary     transfers     sought   by     a    principal    even       though   the


    15
      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.
         16
          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.
principal was motivated by the employee's race or exercise of First

Amendment     rights,   so    long     as    there   was   an    irreconcilable

personality    conflict      between   the    principal    and   the   employee.

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

to infer that such a consideration 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 relies on Wright's testimony that "[w]e had something here

     17
      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
unreasonable," 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 conference did Mr.
            Jett suggest to you that Dr. Todd be transferred?

            A. Yes, sir, he did. He felt that Mr. McWhorter had been
            unsuccessful 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 and the coach it is
            obvious that the principal is responsible for the school
            and would be the one to stay unless he was in error
            himself and I hadn't found anywhere where Dr. Todd was in
            error." (Emphasis added).
that 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 support an inference that Wright

generally approved transfer recommendations despite their being

unconstitutionally motivated.        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

policymaking 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 policymaking authority" rejected in Praprotnik.

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 policy 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 "must
have been aware."   Praprotnik, 485 U.S. at 130, 108 S.Ct. at 926-

27.

      Accordingly, the judgment 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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