                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-2272
                                   ___________

Jacquelyn Fales, Dr.; Mary Ann          *
Kahmann; Eileen Scarborough,            *
                                        * Appeal from the United States
              Appellees,                * District Court for the
                                        * Western District of Arkansas.
      v.                                *
                                        *
Lynn Garst,                             *     [PUBLISHED]
                                        *
              Appellant.                *
                                   ___________

                           Submitted: June 15, 2000
                               Filed: January 2, 2001
                                   ___________

Before LOKEN, ROSS, and HANSEN, Circuit Judges.
                            ___________

PER CURIAM.

       Lynn Garst appeals from the district court’s denial of his motion for summary
judgment, in which he had asserted a qualified immunity defense to this civil rights
action. We reverse.

       The plaintiffs are three teachers at West Fork Middle School (West Fork) where
Garst has been principal since 1994. Over a period of four years, tension arose
between Garst and the three teachers over the needs of special education students. As
a result, the plaintiffs complained about Garst’s administrative decisions and actions
to his superiors and others, including the media. The plaintiffs later filed this 42 U.S.C.
§ 1983 action, alleging that Garst had violated their rights to freedom of speech and
association under the First Amendment by instructing them not to discuss incidents
regarding special education students at West Fork and their rights to equal protection
under the Fourteenth Amendment by lowering their evaluations. They requested
injunctive and declaratory relief, and damages. Following submissions by all the
parties, the district court summarily denied Garst’s motion for summary judgment.

       A denial of summary judgment on the grounds of qualified immunity may be
reviewed on interlocutory appeal when the issue presented is whether the facts alleged
support a claim that a defendant violated clearly established law. See Pace v. City of
Des Moines, 201 F.3d 1050, 1052 (8th Cir. 2000). When an official claims entitlement
to qualified immunity, we first ask whether the plaintiffs have alleged a violation of
constitutional magnitude. See Weiler v. Purkett, 137 F.3d 1047, 1050 (8th Cir. 1998)
(en banc).

       Turning first to the equal protection claim, we conclude that the plaintiffs failed
to offer specific evidence of incidents in which they were treated differently than others
who were similarly situated. See Klinger v. Department of Corr., 31 F.3d 727, 731 (8th
Cir. 1994) (absent threshold showing that plaintiff is similarly situated to those who
allegedly receive favorable treatment, plaintiff does not have viable equal protection
claim), cert. denied, 513 U.S. 1185 (1995).

       As to the alleged First Amendment violations, the initial issue--whether the
speech of a public school teacher is constitutionally protected expression--is determined
by inquiring whether the speech may be described as “speech on a matter of public
concern.” If so, the court balances the teacher’s interest in speaking against her
employer’s interest in promoting the efficiency of the public service it performs through
its employees. See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968); Kincade
v. City of Blue Springs, 64 F.3d 389, 395 (8th Cir. 1995), cert. denied, 517 U.S. 1166

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(1996). “These two questions are matters of law for the court to resolve.” See
Kincade, 64 F.3d at 395.

       The plaintiffs’ complaints, which centered around the proper care and education
of special education students, touched upon matters of public concern. See id. at 396
(employee’s speech touches upon matter of public concern when it is a matter of
political, social, or other concern to community, but not when employee speaks upon
matters of only personal interest); Bowman v. Pulaski Co. Special Sch. Dist., 723 F.2d
640, 644 (8th Cir. 1983) (question of what constitutes proper care and education of
children is area of public concern).

       However, in applying Pickering’s balancing test, we conclude that the
undisputed facts show that the plaintiffs’ speech resulted in school factions and
disharmony among their coworkers and negatively impacted Garst’s interest in
efficiently administering the middle school. See Kincade, 64 F.3d at 397 (relevant
factors in conducting test are whether speech creates disharmony in workplace,
impedes speaker’s ability to perform duties, or impairs working relationships with other
employees). After one newspaper article was published, a West Fork teacher
confronted Kahmann and told her that she should not be talking to the newspaper. One
faculty member verbally accosted her several times, and another told her she should
leave West Fork. Scarborough and Fales were engaged in an ongoing battle with the
fifth-grade teachers concerning special education issues. The school climate led the
district’s superintendent to recruit a consultant to mediate the issues. The consultant’s
efforts did not resolve the situation; her meeting with the staff merely revealed that the
faculty was divided and the problems were serious. Ultimately, the middle school
became polarized, dividing into pro- and anti-Garst groups. Unlike the situation in
Belk v. City of Eldon, 228 F.3d 872, 881 (8th Cir. 2000), where there was a question
of whether the speech itself caused the workplace turmoil, here it is beyond
peradventure that the plaintiffs' speech caused the school upheaval. Because we
believe that the teachers’ interest in speaking on these matters was outweighed by the

                                           -3-
interest of efficient administration of the middle school, we conclude the district court
erred in not finding Garst was entitled to qualified immunity.

       Accordingly, we reverse the judgment of the district court and remand for entry
of an order granting Garst’s motion for summary judgment.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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