                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                                                                   F I L E D
                                 REVISED JUNE 17, 2003
                                                                                     June 2, 2003

                                                                                Charles R. Fulbruge III
                    IN THE UNITED STATES COURT OF APPEALS                               Clerk

                                FOR THE FIFTH CIRCUIT



                                       No. 02-10351



       KAREN JO BARROW,

                                                         Plaintiff-Appellant,

                                           versus

       GREENVILLE INDEPENDENT SCHOOL
       DISTRICT, ET AL.,

                                                         Defendants,

       HERMAN SMITH, DR.,

                                                         Defendant-Appellee.


                   Appeal from the United States District Court for
                           the Northern District of Texas
           _______________________________________________________


Before KING, Chief Judge, REAVLEY and STEWART, Circuit Judges.

REAVLEY, Circuit Judge:

       Karen Jo Barrow claims that she was denied a public-school position because her

children attended private school, an alleged violation of her constitutional right to educate
her children in private school. The district court rendered summary judgment for the

school superintendent, Dr. Herman Smith, on the ground of qualified immunity, and

certified it as final.1 We reverse.

                                      BACKGROUND

       Barrow was a classroom teacher within the Greenville Independent School District

in July 1998 when she learned of an opening at the district’s middle school for the

position of assistant principal. Barrow expressed her interest in the position, but was

advised that to be considered for it she had to re-enroll her children in a public school.

Barrow and her husband met with Smith, then district superintendent, who told them that

the district required that the children of all principals and administrators attend public

school. Barrow refused to comply with the district’s policy, and as a result, the district

did not consider her for the position of assistant principal.

       Barrow initiated the instant action against the district and Smith under 42 U.S.C. §

1983. Smith moved for summary judgment asserting qualified immunity, allowing the

court to assume for that limited purpose that he decided not to promote Barrow in part

because she chose to educate her children in a private school. The district court

determined that Barrow had failed to allege the violation of a clearly established

constitutional right in 1998 and that Smith was therefore entitled to qualified immunity.

                                       DISCUSSION



       1
              See FED. R. CIV. P. 54(b).

                                              2
       Whether a public official is entitled to qualified immunity requires that the court

pass on two questions.2 First, viewing the facts in a light most favorable to the plaintiff,

the court must determine if the plaintiff has alleged the violation of a constitutional right.3

The second question (which we need address only if we answer the first question in the

affirmative) requires the court to determine if the constitutional right was clearly

established when the violation supposedly occurred.4 The right can be said to have been

clearly established only if all reasonable officials in the defendant’s position would have

concluded that the challenged state action was unconstitutional.5

       In her amended complaint, Barrow argued that Smith violated her right to select a

private-school education for her children as guaranteed by the First Amendment and “the

penumbra of familial privacy rights” (count I); her right under the Due Process Clause of

the Fourteenth Amendment to direct the upbringing of her children (count II); and her

right under the Free Exercise Clause of the First Amendment to provide a religious

education for her children (count III). We will consider these three claims together: at


       2
                 Smith argues that even if we reverse the district court’s determination that he is
entitled to qualified immunity this court can affirm the judgment below by finding that Barrow
would not have received the assistant principal position anyway. He argues (1) that Barrow failed
to complete a required written application for the position and (2) that the qualifications of other
candidates were superior to Barrow’s. Never having reached the merits of Barrow’s claims, the
district court of course did not address these arguments. On this record we cannot rule on these
issues as a matter of law.
       3
               See Saucier v. Katz, 533 U.S. 194, 201 (2001).
       4
               See id.
       5
               See Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 284 (5th Cir. 2002).

                                                 3
bottom all aver that Barrow, a public-school employee, has a constitutionally-protected

right to select a private-school education for her children. Our inquiry at this stage is

limited to the question whether there is a recognized constitutional right and not whether

that right is grounded in the First Amendment, the Fourteenth Amendment, or both.

       Twenty years ago, in Brantley v. Surles,6 we said that “[t]he parental interest in the

direction and control of a child’s education is central to the family’s constitutionally

protected privacy rights.”7 We also recognized that constitutional rights take on a

different hue in the context of public-school employment in light of the state’s interest “in

promoting efficiency in the educational services which it provides through its school

employees.”8 Thus, the state may restrict its employee’s constitutionally-protected

conduct “whenever that conduct materially and substantially impedes the operation or

effectiveness of the [state’s] educational program.”9 The question presented in Brantley

was whether a Mississippi school district superintendent could lawfully terminate

Brantley, an elementary-school cafeteria manager, who decided to transfer her son to a



       6
               718 F.2d 1354 (5th Cir. 1983).
       7
                 Id. at 1358 (citing Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Soc. of
Sisters, 268 U.S. 510 (1925)). In Meyer, the Court recognized that parents have a protected
liberty interest in the upbringing of their children under the Due Process Clause of the Fourteenth
Amendment. 262 U.S. at 399-400. In Pierce, the Court held that the liberty interest described in
Meyer protected the choice of parents to enroll their children in private school. 268 U.S. at 534-
35.
       8
               Id. at 1359.
       9
               Id.

                                                 4
segregated private school. Brantley was white and worked in a predominately black

public school. The superintendent testified that interracial dissension “might” occur if

Brantley’s son continued to attend the segregated private school.10 We rejected this

justification for terminating Brantley, concluding that it “was unsupported by any

objective evidence.”11

       Several years later we decided Fyfe v. Curlee.12 The plaintiff in that case, a

secretary to a school principal, also decided to enroll her daughter in a segregated private

school. As a result, the school superintendent transferred her to a menial position with no

responsibility. Relying on Brantley, we affirmed that the Fyfe plaintiff had a protected

right to select a private-school education for her child “under the First Amendment and

the penumbra of familial privacy rights recognized by the Supreme Court.”13 In Fyfe,

black families threatened to boycott businesses in the town in which the school district

was located unless the district promised to not hire anyone whose children attended a

segregated private school. However, the school district offered no evidence of a causal

link between the threatened boycott and Fyfe’s daughter’s attendance of the private

school. In the absence of evidence that Fyfe’s choice of a private-school education for

her daughter would substantially and materially interfere with the school district’s


       10
              765 F.2d 478, 480 (5th Cir. 1985) (appeal following remand).
       11
              Id.; cf. Stough v. Crenshaw County Bd. of Educ., 744 F.2d 1479 (11th Cir. 1984).
       12
              902 F.2d 401 (5th Cir. 1990).
       13
              Id. at 403.

                                              5
operations and effectiveness we held that Fyfe must prevail as a matter of law.14

       Our decisions in Brantley and Fyfe leave no doubt that public-school employees

like Barrow have a protected right to educate their children in private school. The state

cannot take an adverse employment action against a public-school employee for

exercising this right unless it can prove that the employee’s selection of private school

materially and substantially affects the state’s educational mission. In this case, for

purposes of this decision, Smith refused to consider Barrow for the position of assistant

principal because her children attended private school. Refusal to promote is an adverse

employment action.15 Because Smith failed to present a fact issue that Barrow’s

children’s attendance of a private school would negatively impair district operations were

Barrow selected for assistant principal, the violation of a constitutional right is shown.

       Brantley and Fyfe also confirm that the constitutional right of public-school

employees to select a private-school education for their children was clearly established

when Smith refused to consider Barrow for the position of assistant principal. Smith

argues that Brantley and Fyfe do not give fair warning to all reasonable officials in his

place that refusing to consider Barrow for the assistant principal position would be

unconstitutional. Initially, we note that the question whether there was a clearly-

established right does not turn on the existence of a court decision determining that



       14
              Id. at 405-06.
       15
              See Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997).

                                              6
conduct identical to that which is at issue here is unlawful.16 Rather, the pertinent inquiry

asks “whether the state of the law [in 1998] gave [Smith] fair warning that [his] alleged

treatment of [Barrow] was unconstitutional.”17 Smith points out that the plaintiff-school

employees in Brantley and Fyfe were in non-administrative positions, whereas Barrow

sought the position of assistant principal. He suggests that requiring administrative

employees to enroll their children in public schools better serves the district’s interest in

public confidence in the public school system than imposing a similar requirement on

non-administrative employees does. Smith may be correct that the public tends to be

more attuned to the personal educational decisions of the school district’s administrative

employees than of its other employees. We may also assume that the district’s interest in

public confidence in its schools is both legitimate and important.18 However, our

decisions in Brantley and Fyfe did not rest on a too-attenuated nexus between the public

confidence in public schools and the personal educational choices of cafeteria managers



       16
               See Anderson v. Creighton, 483 U.S. 635, 640 (1987).
       17
               See Hope v. Pelzer, 122 S. Ct. 2508, 2516 (2002).
       18
                 Indeed, in some instances, the success of a public education program may depend
on the perception that it is superior to that of both other public schools and private schools. See
Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002) (upholding a state law authorizing parents to
assign tax dollars to another public school or to a private school upon their decision not to enroll
their children in the schools of the public-school district in which they reside). Further, it is
conceivable, as Smith suggests, that the public might interpret the decision of one or more senior
public-school employees to enroll their children in a private school as a vote of no-confidence in
school district in which they work. The burden of the school district would then be to prove that
the private school placement materially and substantially impeded the operation and the
effectiveness of the state’s educational program.

                                                  7
and secretaries. Instead, those decisions rely on our recognition that (1) public-school

employees enjoy a protected right to enroll their children in private school, and (2) a state

action that interferes with this protected right is unsustainable unless proved to further a

state interest. Brantley and Fyfe require the state to prove that a state action that

interferes with protected educational choices of its public-school employees furthers the

state’s interest in the efficient operation of its schools. Nothing about those two decisions

suggests that the state can forgo this burden with respect to its more senior employees.19

We therefore hold that no reasonable official could conclude that the application of the

school district’s public-school patronage policy to Barrow was constitutional.20

       REVERSED and REMANDED.




       19
                In support of his claim that the right of public-school employees to enroll their
children in private school is not clearly established, Smith offered the testimony of several
professional educators, all of whom opined that patronage policies like the one in this case are
lawful or are of uncertain legality. The question whether an asserted constitutional right is clearly
established is one of law. Smith’s subjective reasonableness has no place in our inquiry.
       20
                In so holding, we express no opinion on the particular degree of scrutiny a state
action must undergo to withstand a challenge to its constitutionality in a case like this one.
Instead, we simply recognize that the state cannot strip its school employees of the right to
choose a private-school education for their children without proving that the unfettered exercise
of this right will undermine a state interest. Barrow and amici curiae argue that any state action
that interferes with this right is subject to strict scrutiny. We need not take up this question today.
In the absence of objective proof that Barrow’s choice of a private-school education for her
children will undermine a state interest the district’s patronage policy fails irrespective of the
degree of scrutiny applied.

                                                  8
