Mt. Healthy and Causation-in-fact: the Court Still Doesn't Get It! - Sheldon Nahmod

• Publication year: 2000

Mt. Healthy and Causation-in-Fact: The Court Still Doesn't Get It!by Sheldon Nahmod^*

I. Introduction

Over fifteen years ago, I argued in a prior edition of my section 1983 treatise that the second burden-shift part of the Mt. Healthy¹ test, articulated by the Supreme Court in 1977, should go only to damages and not to liability.² I also argued that this causation-in-fact rule should not be limited to Mt. Healthy-type First Amendment employment cases, but should apply to constitutional damages actions generally and equal protection cases in particular.³ I remain convinced that both aspects of this position are normatively sound, even if no longer good law, in light of the Court's end-of-the-millennium decision in Texas v. Lesage.⁴ My position is supported by the following: (1) the Court's 1978 procedural due process decision in Carey v. Piphus;⁵ (2) the Court's 1995 after-acquired evidence decision in McKennon v. Nashville Banner

Publishing Co.;⁶ (3) causation-in-fact principles from tort law; and (4) the compensation and deterrence policies underlying section 1983.⁷

II. Mt. Healthy and First Amendment Violations

Mt. Healthy dealt with a section 1983 action for reinstatement and back pay arising out of a school board's refusal to renew an untenured school teacher's contract. Plaintiff claimed that his contract was not renewed because of protected First Amendment activity, while the school board asserted that it was not renewed because of plaintiff's obvious lack of professionalism. The Sixth Circuit affirmed the district court's ruling that plaintiff was entitled to reinstatement and back pay because his contract was not renewed as a result of protected First Amendment activity. Significantly, the district court also found that there was independent reason, apart from plaintiff's First Amendment activity, not to renew his contract.⁸

Vacating and remanding the district court's order of reinstatement and back pay, the Supreme Court set out the following test to be applied on remand:

Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a "substantial factor"—or, to put it in other words, that it was a "motivating factor" in the Board's decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent's re-employment even in the absence of the protected conduct.⁹

The Court reasoned that "[a] rule of causation which focuses solely on whether protected conduct played a part, 'substantial' or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing."¹⁰ It concluded, "The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct."¹¹

Thus, in cases in which there may be mixed motives for an employment decision, one motive allegedly violative of the First Amendment and the other motive permissible, there are two burdens under Mt. Healthy. The first is the plaintiff's: Did the plaintiff prove by a preponderance of the evidence that the impermissible motive was a substantial factor in the challenged decision? If the answer is no, then the plaintiff has lost on the First Amendment violation issue and there is obviously no need to address the remedy issue. If the answer is yes, then the burden-shift inquiry kicks in: Did the defendant prove by a preponderance of the evidence that it would have made the same decision anyway (i.e., did the defendant prove the absence of but-for causation)? If the answer to the burden-shift inquiry is no, then the plaintiff is entitled to reinstatement and back pay and any other damages attributable to the job loss because the First Amendment violation caused the job loss.

However, if the answer to the burden-shift inquiry is yes, then the plaintiff is not entitled to reinstatement and back pay because the First Amendment violation did not cause the job loss. Nevertheless, and here is the major point, I argue that there is a First Amendment violation in this situation and that the plaintiff should be entitled to whatever compensatory damages that he can prove are attributable to the First Amendment violation itself, excluding any damages attributable to the job loss.¹² For example, there may be emotional distress resulting from the chilling effect upon the plaintiff for being punished for past First

Amendment activity and from the frustration of the denial of the plaintiff's right of self-expression.¹³

Admittedly, this may be very difficult for a plaintiff to prove in the typical First Amendment employment case. But even when the plaintiff cannot prove any compensable emotional distress, the plaintiff should be entitled at least to nominal damages to vindicate the constitutional interest harmed. Perhaps the plaintiff should also be entitled to attorney fees as a prevailing party¹⁴ when the defendant is a local government¹⁵ or an individual not protected by absolute or qualified immunity.¹⁶ Indeed, without the possibility of recovering damages for First Amendment harm caused (again, apart from the job loss), the plaintiff is actually placed in a "worse . . . position than if he had not engaged in the conduct" because he is denied compensation for harm caused.¹⁷ The Court's emphasis in Mt. Healthy that the mixed-motive plaintiff is entitled to no more than the restoration of the status quo ante suggests that the plaintiff should be entitled to no less than that.

Admittedly, the Court in Mt. Healthy focused on reinstatement and back pay. Thus, strictly speaking, Mt. Healthy did not address causation-in-fact in a damages setting. Still, my prior understanding of Mt. Healthy and the effect of the burden-shift rule was not necessarily inconsistent with the Court's language in the case. The above-quoted language mentions "[t]he constitutional principle at stake," thus suggesting that there was indeed a constitutional violation in Mt. Healthy.¹⁸ Also, in Mt. Healthy the remedy at issue was not damages but rather the equitable remedy of reinstatement and back pay, each aspect of which is connected to the loss of employment itself. That is, the Court did not necessarily hold that a person in the Mt. Healthy plaintiff's situation is precluded from recovering damages not attributable to loss of employment. Instead, its focus was on the loss of employment and fairness to the employer.

On the other hand, other parts of the opinion can be read very differently. For example, several sentences before the Court's reference to "[t]he constitutional principle at stake," the Court described the issue before it as whether, when an employer would have reached the same decision even apart from the impermissible motive, "the fact that the protected conduct played a 'substantial part' in the actual decision not to renew would necessarily amount to a constitutional violation justifying remedial action."¹⁹ This can be understood as indicating that a defendant who carries Mt. Healthy's shifted burden has prevailed on the merits of the constitutional violation itself.

All this demonstrates that exegesis is better reserved for sacred texts than for Supreme Court decisions.²⁰ For present purposes it suffices that reading the burden-shift rule of Mt. Healthy as going to remedy and not to liability was at least plausible and not necessarily inconsistent with the position that this burden shift should go to remedy. On the other hand, after Mt. Healthy most of the circuit courts addressing the issue understood Mt. Healthy's burden-shift rule as going to liability and not to remedy.²¹ Moreover, a majority of the justices, including Justice

Brennan, appeared to read Mt. Healthy the same way in Price Water-house v. Hopkins.²² Finally, in November 1999 the Court in Lesage, which was a unanimous per curiam decision without benefit of briefs and argument, declared that Mt. Healthy's burden-shift rule goes to liability in all section 1983 damages actions based on First Amendment and Equal Protection Clause violations.²³

III. Texas v. Lesage: A First Look

Lesage involved section 1981, section 1983, and Title VI claims for damages and injunctive relief brought by a white African immigrant against the University of Texas and others for allegedly rejecting, on racial grounds, his application for admission to the school's Ph.D. program in counseling psychology. He argued that the school's race- conscious admissions program violated his federal constitutional and statutory rights. Granting defendants' motion for summary judgment on all claims, the district court concluded that consideration of race did not affect plaintiff's rejection.²⁴ The Fifth Circuit reversed, stating that even if the school would have rejected plaintiff under a colorblind admissions process, that was "irrelevant to the pertinent issue on summary judgment, namely, whether the state violated Lesage's constitutional rights by rejecting his application in the course of operating a racially discriminatory admissions program."²⁵ It went on to observe that if plaintiff was rejected at any racially conscious stage of the admissions process, then he had "suffered an implied injury"—the inability to compete on equal footing with other applicants.²⁶ Because there was a factual dispute as to this, summary judgment for defendants was inappropriate.²⁷

The Supreme Court in turn unanimously reversed in a per curiam opinion.²⁸ As to the section 1983 damages claim, the Court expressly ruled that, under the approach of Mt. Healthy, even if defendants actually considered the impermissible criterion of race in rejecting plaintiff, they would "defeat liability"...