Three Arguments Against Mt. Healthy: Tort Theory, Constitutional Torts, and Freedom of Speech - Michael Wells

• Publication year: 2000

Three Arguments Against Mt. Healthy: Tort Theory, Constitutional Torts, and Freedom of Speechby Michael Wells^*

I. Introduction

Mt. Healthy City School District Board of Education v. Doyle¹ is among the most important, and least discussed, cases in constitutional tort law.² It stands for the abstract principle that the "but-for" rule of causation, which is the usual test in common-law torts, applies in constitutional tort suits as well. To understand the principle and its implications, it is helpful to have in mind a concrete example of its application, and Mt. Healthy provides as good an illustration as any other case. Doyle, a nontenured school teacher, quarreled with another teacher, with school employees, and with students.³ Two specific incidents deserve mention. First, on one occasion he "made an obscene gesture to two girls in connection with their failure to obey commands made in his capacity as cafeteria supervisor."⁴ Second, after the principal circulated a memorandum on a teacher dress code, he called a local radio station to criticize the administration.⁵ "[C]iting 'a notable lack of tact in handling professional matters which le[ft] much doubt as to [his] sincerity in establishing good school relationships,'"⁶ and giving the radio station incident and the obscene gesture incident as examples, the school district declined to offer him a contract for the next school year.⁷

Doyle sued under 42 U.S.C. Sec. 1983,⁸ which authorizes victims of constitutional violations to sue for damages or injunctive relief.⁹ Though Doyle was able to show that protected speech played a part in the decision, a unanimous Court held that he could not recover damages for the discharge if the government could prove that he would have been fired anyway, for constitutionally permissible reasons.¹⁰ Otherwise, Doyle would be "in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing."¹¹ The Court adopted a two-part test for causation in mixed motive cases.¹² First, the plaintiff must show that the "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."¹³ Once the plaintiff meets the substantial factor test, the burden of proof shifts to the defendant to show "by a preponderance of the evidence that it would have reached the same decision . . . even in the absence of the protected conduct."¹⁴ The Court's rule is a variant of the but-for test that governs most cause-in-fact issues in the common law of torts, differing only in its allocation of the burden of proof.¹⁵ Unlike the issue of whether speech is protected by the First Amendment, which is a question of law for the court, the causation issue is for the jury, subject to the customary judicial oversight for reasonableness.¹⁶

As the other papers in this symposium attest, this mixed motives fact pattern arises frequently in constitutional tort law because the validity of government action may turn on the motive behind it.¹⁷ The Mt. Healthy causation rule has spread from First Amendment retaliation law throughout section 1983 litigation. The topic of the symposium is whether the Mt. Healthy rule goes to liability or only to damages. In my view, this is not the best way to frame the issue, for it seems to take the holding as a given and to focus attention only on the scope of the rule. The more fundamental question is whether either damages or liability ought to depend on meeting the Mt. Healthy test.

This Article argues that Mt. Healthy was wrongly decided and therefore should not be applied either in determining liability or in assessing damages. It should be replaced by a rule that allows the plaintiff to recover full damages whenever the constitutional violation was sufficient to cause them. Part II focuses on the role of causation in tort law. Examining Mt. Healthy from the perspective of general tort theory, I argue that the ruling is at odds with the fairness and deterrence goals of tort law. Part III shifts to the special features of the constitutional tort context. Quite apart from the general principles of tort law, the special role of constitutional tort law as part of the system of constitutional remedies justifies a more plaintiff-friendly causation rule for constitutional torts. In Part IV, I return to the First Amendment origins of Mt. Healthy and argue that certain distinctive features of retaliation cases, in particular the fragility of First Amendment rights, justify a special sufficient cause rule in this context, even if such a rule were rejected for other constitutional claims. Notice that, while the narrow focus of Part IV is the First Amendment retaliation doctrine, the rest of the analysis is relevant across the whole range of constitutional tort suits.

These three arguments are sufficiently distinct to require separate treatment, yet they are variations on a single theme. The Court in Mt.

Healthy maintained that "[t]he 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."¹⁸ Each of the three arguments I advance is a ground for doubting whether the but-for rule sufficiently vindicates the free speech rights of public employees. Principles drawn from tort theory, constitutional remedies, and First Amendment law all suggest that the but-for rule falls short.

II. Tort Theory, Multiple Causes, and Mixed Motives

Because there are significant differences between the aims of ordinary tort law and the section 1983 cause of action, it would be a mistake to resolve constitutional tort issues by simply transplanting general tort principles into the constitutional context.¹⁹ Even so, general tort law is an appropriate place to begin the analysis of constitutional tort issues, provided one keeps in mind that it is only the beginning. Over many years courts and scholars have brought substantial intellectual resources to bear on the issues that arise in suits to recover damages for past wrongs, and many of their insights are relevant in the constitutional tort context. The goals of tort law are to achieve fairness between the parties and to deter socially objectionable conduct,²⁰ and the justification for the causation requirement is that it is a (more or less useful) tool for pursuing those ends.²¹ Though some theorists disagree,²² courts generally take it for granted that it is unfair to make even a faulty defendant pay damages if there is no connection between the fault and the harm. As for deterrence, the causation requirement is justified as a means of assuring that there is a real need for legal intervention. The absence of a causal link between the behavior and harm suggests that the defendant's actions do not have undesirable consequences, thereby undermining the case for liability.

The Court in Mt. Healthy applied the but-for test to the mixed motive issue with little analysis, as though it were a fundamental and incontestable rule of tort law. In reality, common-law courts do not view the but-for test as an immutable principle that applies without exception across the whole range of causation problems. It is a means toward realizing these aims and should not be used when fairness and deterrence are better served by other means.²³ In most circumstances, the but-for test serves these goals well by distinguishing the cases in which defendants bear no responsibility for the harm from those in which there is such a connection. But this is not always so. In a fact pattern that somewhat resembles the mixed motives problem, they have rejected the but-for test in favor of a rule that is far more favorable to the plaintiff. Suppose two fires, each large enough to destroy the plaintiff's house, advance inexorably toward the property. They come together before reaching the plaintiff's property, and the larger fire consumes the house. Even though the but-for test is not met with regard to either fire, a defendant responsible for either of them would be liable under the substantial factor—or, more precisely, a sufficient cause—test of causation.²⁴

The mixed motives issue decided in Mt. Healthy resembles the causation problem presented by the two-fires case. As a matter of fact, each of the motives may be sufficient to produce the dismissal. Indeed, this may be the typical case, yet under the Court's rule the defendant escapes liability so long as the jury finds that the permissible motive would have been sufficient.²⁵ The Court never quite faced up to this implication of its rule. It characterized the holding as a rejection of "[a] rule of causation which focuses solely on whether protected conduct played a part, 'substantial' or otherwise, in a decision not to rehire."²⁶ But this formulation fails to address squarely the case in which the impermissible motive does not merely play a part, but is sufficient to bring about the dismissal. It may well be that the plaintiff should lose if the permissible motive is sufficient to bring about the employer's action and the impermissible motive has a subsidiary role, merely "mak[ing] the employer more certain of the correctness of its decision."²⁷ By contrast, in a given case the jury may find as a matter of fact that each motive, the bad one as well as the good one, was sufficient by itself to produce the firing. Lower courts read Mt. Healthy as requiring them to find for the defendant in these circumstances.²⁸

There are good reasons, based on both fairness and deterrence, why common-law courts have rejected the but-for test as a rule for sufficient cause cases. First, the judgment of the common law is that fairness between the parties favors the plaintiff's recovery, for "it is quite clear that each cause has in fact played so important a part in producing the result that responsibility should be imposed upon it."²⁹ There is...