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Ninth Circuit:
Board Member’s Claim of Efforts to Silence Her Is Barred
Panel Says Eleventh Amendment Immunity Protects School Superintendent, Fellow Board Members
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday held that the Eleventh Amendment bars an action by a member of a school board against the four other members of the board and the district’s superintendent who, she asserts, are engaged in a continuing campaign to silence her through harassment, in violation of the First Amendment.
In a memorandum opinion, a three-judge panel affirmed a summary judgment granted by District Court Judge William Q. Hayes of the Northern District of California in favor of David Miyashiro, superintendent of San Diego County’s Cajon Valley Union School District (“CVUSD”), and Board of Trustees members James Miller, Jo Alegria, Tamara Otero, and Karen Clark-Mejia.
Plaintiff Jilanne D. Barto alleged in her complaint:
“Plaintiff has been outspoken in questioning the Board and the Superintendent, and his staff and administration, consistent with her fiscally responsible principles. The School District Board Superintendent and four other board members have retaliated against Plaintiff and conspired against her in violation of her First Amendment rights under the United States Constitution.”
She added:
“Defendants’ retaliatory conduct has repeatedly tried to prevent Plaintiff from frilly representing the constituents that elected her to the Board.”
Raised Issues
The plaintiff recited that she “raised issues about how much money District Superintendent Miyashiro has spent on his travel and conference costs, and raised questions about the size and nature of expenditures from his discretionary funds”; challenged a request from a trustee to be paid for a board meeting she failed to attend; and “raised questions about contracts with the District, particularly in connection with a $600,000 contract that Defendant Miyashiro proposed be and in fact was awarded to Dryw Otero, son of Board President Defendant Tamara Otero.”
Barto claimed that Miyashiro barred her from contacting school district employees directly, that her colleagues refused to reveal to her what transpired at an executive session she missed, she was denied access to recordings of board meetings and public comment cards, that she was eliminated from the prerogative of setting the agenda which alternates among members, her board credit card was cancelled, and she was otherwise discriminated against.
Joining in Friday’s opinion were Circuit Judge Jacqueline H. Nguyen, Senior Circuit Judge A. Wallace Tashima, and District Court Judge Sidney A. Fitzwater of the Northern District of Texas, sitting by designation. They found that Eleventh Amendment immunity shields the defendants.
Wording of Amendment
That amendment provides:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
The U.S.in 1997 declared in Idaho v. Coeur D’Alene Tribe of Idaho that the Eleventh Amendment applies where states are sued by its own citizens. School board members, the Ninth Circuit has held, are “arms” of the state.
To avoid Eleventh Amendment immunity, Barto invoked the U.S. Supreme Court’s 1908 holding in Ex parte Young permitting suits to bar a state’s continued violations of the U.S. Constitution or federal law. Her action, Barto declared, was aimed at preventing future conduct in an effort to chill of her free-speech rights.
“But even assuming arguendo that the relief Barto seeks is prospective,” Friday’s opinion says, “Barto cannot show an ongoing violation of the First Amendment.”
Requisites for Liability
The panel set forth:
“[P]laintiffs can establish liability in one of three ways: (1) by proving that an employee committed the violation pursuant to a formal policy or longstanding practice or custom that constitutes the standard operating procedure of the governmental entity: (2) by establishing that the individual who committed the constitutional tort was an official with final policy-making authority: or (3) by proving that an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for it….Here, Barto unavailingly relies on the first two theories.
“Barto failed to point to any record evidence that Appellees acted pursuant to a policy or longstanding custom to violate Barto’s First Amendment rights….And while the Board as an entity exercised final policy-making authority based on a majority vote, there is no evidence in the record that any of the Trustees named as defendants could make a ‘final decision’ that ‘may appropriately be attributed to the District.’…The record evidence confirms that Miyashiro did not make decisions that were final, unreviewable, and unconstrained by Board policies.”
A footnote says:
“We granted Appellees motion to take judicial notice of a public record showing that Barto withdrew her name as a candidate for the November 8. 2022 election for Cajon Valley Union Trustee Area No. 2….While Barto’s withdrawal raises doubt as to whether the relief she seeks remains prospective, we need not reach this question because Barto, in any event, cannot show an ongoing violation of federal law.”
The case is Barto v. Miyashiro, 21-56223.
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