                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-2284
                                    ___________

Springdale Education Association,       *
Wendell Ridenour, President;            *
Wendell Ridenour; Susan Rowe,           *
                                        *
              Appellants,               *
                                        *   Appeal from the United States
      v.                                *   District Court for the
                                        *   Eastern District of Arkansas.
Springdale School District; Jim D.      *
Rollins, Individually and as            *
Superintendent of the Springdale        *
School District,                        *
                                        *
              Appellees.                *
                                   ___________

                         Submitted: December 11, 1997

                               Filed: January 9, 1998
                                    ___________

Before WOLLMAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

        The Springdale Education Association and its president, Wendell Ridenour, and
Ridenour and Susan Rowe, individually (hereinafter, collectively, “the union”), brought
this action pursuant to 42 U.S.C. § 1983 against the Springdale School District and its
superintendent, Jim Rollins, in both his individual and official capacities. The union
appeals from the district court’s dismissal of each claim with prejudice, and from the
denial of its motion to reconsider the dismissals. We affirm in part, reverse in part, and
remand.

                                             I.

       This appeal arises from an apparent conflict between Rollins and those
individuals in the district’s employ who have associated themselves with the Springdale
Education Association, a local union. In its initial complaint, the union charged that
certain actions and statements by Rollins (and other unnamed district employees)
evincing an anti-union sentiment were violative of the First Amendment. The union
sought to assign liability for its alleged constitutional injuries both to the district and
Rollins under section 1983. After the defendants filed a motion to dismiss under Fed.
R. Civ. P. 12(b)(6), the district court granted the union leave to amend its complaint.

       The union’s amended complaint alleged that on May 29, 1996, Rollins directed
the Springdale school board attorney to research the legal question whether the district
could legally terminate the employment of teachers for involvement in union activities.
 In addition, Rollins stated at a public meeting that as long as he was superintendent
“classified or non-certified district personnel were not going to be members of the
Springdale Education Association” and that “he would ‘not stand for it.’” Moreover,
“Rollins or those under his direction or control” encouraged or coerced employees of
the district not to join the union, subjected district employees to “ridicule and contempt
in public and private meetings,” and placed Rowe, a non-certified district employee, on
probation “in direct retaliation for her lawful activities” on behalf of the union. Further,
“[s]upervisors under the direction of and with the knowledge of Rollins” had expressed
to members of the union the hope that they could “be saved from this ‘satanic
organization,’ referring to the Springdale Education Association, AEA, and/or NEA.”
See Plaintiffs’ Amended Complaint at 2-3.


                                            -2-
      The defendants filed a motion to dismiss the amended complaint for failure to state
a claim. The district court granted this motion with respect to both the district and
Rollins, dismissing each action with prejudice, and denied the union’s motion to
reconsider.

                                            II.

        We conduct a de novo review of a district court’s grant of a motion to dismiss for
failure to state a claim. See Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir. 1993). A
complaint should not be so dismissed unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim that would demonstrate an entitlement
to relief. See id. When analyzing a dismissal under Rule 12(b)(6), we accept the factual
allegations contained in the complaint as true and construe them in the light most
favorable to the plaintiff. See id. We do not apply a standard of heightened specificity,
more stringent than the usual pleading requirements of the civil rules, in cases alleging
municipal liability under section 1983. See Frey v. City of Herculaneum, 44 F.3d 667,
671 (8th Cir. 1995) (citing Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 168 (1993)). At a minimum, however, a complaint
must contain facts sufficient to state a claim as a matter of law and must not be merely
conclusory in its allegations. See Frey, 44 F.3d at 671.

       To state a claim under section 1983, a plaintiff must set forth facts that allege an
action performed under color of state law that resulted in a constitutional injury. See
Haberthur v. City of Raymore, Mo., 119 F.3d 720, 723 (8th Cir. 1997). A local
government, however, cannot be held liable under section 1983 for an injury inflicted
solely by its employees or agents on a theory of respondeat superior. See Andrews v.
Fowler, 98 F.3d 1069, 1074 (8th Cir. 1996) (citing Monell v. Department of Social
Servs. of City of New York, 436 U.S. 658, 694 (1978)). Rather, a plaintiff seeking to
impose such liability is required to identify either an official municipal policy or a
widespread custom or practice that caused the plaintiff’s injury. See Board of County



                                           -3-
Comm’rs of Bryan County, Okl. v. Brown, 117 S. Ct. 1382, 1388 (1997); Kinman v.
Omaha Pub. Sch. Dist., 94 F.3d 463, 467 (8th Cir. 1996); McGautha v. Jackson County,
Mo., Collections Dep’t, 36 F.3d 53, 55-56 (8th Cir. 1994).

       The identification of an official policy as a basis upon which to impose liability
ensures that a municipality is held liable only for constitutional deprivations “resulting
from the decisions of its duly constituted legislative body or of those officials whose acts
may fairly be said to be those of the municipality.” Brown, 117 S. Ct. at 1388; see also
McGautha, 36 F.3d at 55-56. Similarly, actions performed pursuant to a municipal
“custom” not formally approved by an authorized decisionmaker “may fairly subject a
municipality to liability on the theory that the relevant practice is so widespread as to
have the force of law.” Brown, 117 S. Ct at 1388; see also McGautha, 36 F.3d at 56-57.

       As the district court noted, neither the union’s complaint nor amended complaint,
read liberally, alleges that any constitutional injury was the result of an official policy or
widespread custom of the school district. Instead, every alleged action is attributed
specifically to Rollins, or to unnamed persons “under his direction or control.” The
district itself is mentioned but once within the alleged facts, by way of a summary
accusation that it violated the plaintiffs’ rights. See Plaintiffs’ Amended Complaint at
4. The amended complaint is thus insufficient, on its face, to state a claim against the
district. See, e.g., Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 735-36
(7th Cir. 1994) (dismissal of county school corporation proper when complaint failed to
adequately allege policies or customs on part of corporation).

       Nevertheless, the union attempts in its brief to attribute the actions of Rollins to
the district by asserting that Rollins is an authorized district policymaker. Any action
taken by Rollins, it contends, must therefore have constituted official district policy. We
have summarized the applicable law regarding this theory as follows:




                                            -4-
      Although municipal liability for violating constitutional rights may arise
      from a single act of a policy maker, that act must come from one in an
      authoritative policy making position and represent the official policy of the
      municipality. [internal citations omitted]. Therefore, “[w]hen 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.”

McGautha, 36 F.3d at 56 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127
(1988) (plurality opinion)). Whether a person is an authorized policymaker for purposes
of assigning municipal liability is a question of state law. See Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 737 (1989); Jane Doe “A” v. Special Sch. Dist. of St. Louis County,
901 F.2d 642, 645 (8th Cir. 1990).

       The district court determined that Rollins was not an authorized policymaker for
the school district under Arkansas law, precluding any claim against the district for his
actions under the “official policy” theory of municipal liability. We agree with this
conclusion. With regard to all school district policies, a school superintendent is
empowered only to “recommend” changes, which may or may not become “proposals.”
See Ark. Code Ann. § 6-17-205(c)(2) (Michie 1993). The union argues, however, that
Rollins was, in fact, the district’s final policymaker with respect to Rowe’s being placed
on probation in retaliation for union activities. Arkansas law does not establish
procedures for placing school district employees on some sort of explicit probation.1 A
superintendent does have authority to place a teacher or a non-certified district




      1
         Ark. Code Ann. § 6-17-1504, does provide that whenever a superintendent or
administrator has reason to believe that a teacher is having difficulties in meeting the
district’s expectations that might lead to termination or nonrenewal, the administrator
“shall bring the problems and difficulties to the attention of the teacher involved in
writing and shall document the efforts which have been undertaken to assist the teacher
to correct whatever appears to be the cause for potential termination or nonrenewal.”
Id. at subsection (c).

                                           -5-
employee on suspension. See Ark. Code Ann. §§ 6-17-1508(a), -1704. However, those
suspended are entitled to a hearing within ten days, and only the school board may
terminate employment or continue a suspension for any definite period of time. See Ark.
Code Ann. §§ 6-17-1508(e), -1509, -1705. An employee cannot lose compensation
without action by the board. See Ark. Code Ann. §§ 6-17-1508(f) & (g), -1705(e).

      Arkansas law is clear, then, that a school board, and not a superintendent, has
ultimate responsibility for all district policies, including policies involving unfavorable
employment action. See Ark. Code Ann. § 6-17-205; § 6-17-1501 et seq. (Teacher Fair
Dismissal Act); Western Grove Sch. Dist. v. Terry, 885 S.W.2d 300, 301-03 (Ark.
1994). Nowhere in the union’s amended complaint is it alleged that any “probation”
suffered by Rowe was ever ratified or approved by the board, tacitly or otherwise.
Accordingly, we agree with the district court that municipal liability for such an action
cannot be premised upon a vague allegation directed solely at Rollins or the anonymous
subordinates to which the union has repeatedly referred.

       The union also briefly argues that the amended complaint is sufficient to state a
section 1983 claim against the district under the theory that actions and statements by
Rollins and others indicate that the district has a widespread custom of unconstitutional
anti-union practices. Under such a theory, liability may be established through proof that
the alleged conduct was so pervasive among nonpolicymaking employees of the
municipality as to constitute a custom or usage with the force of law. See McGautha,
36 F.3d at 56. We have held that in order to state such a claim, a plaintiff must allege
facts which, if true, would tend to prove:

      (1) The existence of a continuing, widespread, persistent pattern of
      unconstitutional misconduct by the governmental entity’s employees;




                                           -6-
       (2) Deliberate indifference to or tacit authorization of such conduct by the
       governmental entity’s policymaking officials after notice to the officials of
       that misconduct; and

       (3) That plaintiff was injured by acts pursuant to the governmental entity’s
       custom, i.e., that the custom was the moving force behind the constitutional
       violation.

Jane Doe “A”, 901 F.2d at 646 (citing Harris v. City of Pagedale, 821 F.2d 499, 504-07
(8th Cir. 1987)). We agree with the district court that the amended complaint does not
allege facts which, if true, would be sufficient to demonstrate the district’s deliberate
indifference to or tacit authorization of any sort of pervasive custom of unconstitutional
conduct by district employees as measured by such a standard. See McGautha, 36 F.3d
at 57; Thelma D. by Delores A. v. Board of Educ. of City of St. Louis, 934 F.2d 929, 933-
34 (8th Cir. 1991).

        Accordingly, we conclude that the district court did not err in dismissing the action
against the district. Moreover, in light of the union’s inability to allege facts sufficient to
state a claim against the district even after being granted leave to amend, we cannot say
that the district court abused its discretion in dismissing the action with prejudice. See In
re NationsMart Corp., 1997 WL 721551 (8th Cir. Nov. 21, 1997) at *13 (district court
did not abuse discretion in denying leave to amend).

                                             III.

      The union’s section 1983 claim against the district and its claim against Rollins
must be recognized as analytically distinct. See, e.g., Andrews, 98 F.3d at 1078. In
dismissing the claim for individual liability against Rollins, the district court stated:

       Pursuant to the relevant statutes cited herein, the Court concludes that
       Rollins, as superintendent, could not be a final policymaker for the School




                                            -7-
District with respect to personnel decisions and unfavorable employment action. It
follows that the Court must therefore conclude, as a matter of law, that Rollins is not the
final policymaker for the School District and that he is not subject to individual § 1983
liability.

Order of Dismissal at 12.

        In fact, a supervisor may be subject to individual liability under section 1983 “if
he directly participates in a constitutional violation.” Andrews, 98 F.3d at 1078. This is
true regardless of whether the supervisor is an authorized policymaker for purposes of
municipal liability. See id. In other words, Rollins need not be a final policymaker for
the district in order to be subject to individual liability for actions that he himself
performed.

       Teachers have the right to associate with the union of their choice. See Missouri
Nat’l Educ. Ass’n v. New Madrid County R-1 Enlarged Sch. Dist., 810 F.2d 164, 166-67
(8th Cir. 1987). School officials, in turn, while “free to express their views on unions and
to urge teachers to join or not to join a union,” may not “terminate or otherwise
discriminate against employees who act against their wishes.” Id. Accepting as true her
allegation that Rollins was responsible for placing her on probation and that he took such
action intending to punish her for involvement in union activities,2 we conclude that Rowe
has stated a claim against Rollins that is sufficient to survive a motion to dismiss.3

      2
        This particular allegation by Rowe constitutes the only factual circumstance set
forth in the amended complaint that states a potential claim against Rollins upon which
relief under section 1983 could be based. In particular, we reject out of hand the
union’s suggestion that such liability could be premised upon Rollins’s having directed
the school board attorney to research the question whether the district could terminate
its employees because of their support of the union.
      3
        In their motion to dismiss, defendants also asserted that Rollins is entitled to
qualified immunity in this matter, an argument they renew in their brief on appeal. We
have held that a dismissal on this basis will be upheld on a 12(b)(6) motion only when
the immunity is established on the face of the complaint. See Hafley v. Lohman, 90
F.3d 264, 266 (8th Cir. 1996), cert. denied, 117 S. Ct. 1081 (1997). In light of our

                                           -8-
       The dismissal of all claims against the district is affirmed. The dismissal of claims
by the union and Ridenour against Rollins is affirmed. The dismissal of Rowe’s claim
against Rollins in his individual capacity is reversed, and the case is remanded to the
district court for further proceedings consistent with this opinion.

      A true copy.

             Attest:

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




holding in Missouri Nat’l Educ. Ass’n, we cannot say that immunity is established on
the face of the complaint.

                                           -9-
