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Supreme Court Declines To Hear Case On Principal's Free-Speech Right

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WASHINGTON--The U.S. Supreme Court last week let stand a lower-court ruling in favor of a Texas school district whose board members dismissed the superintendent after he backed the losing slate in a school-board election.

The High Court on May 26 declined to review a decision by the full U.S. Court of Appeals for the Fifth Circuit that held that, "in light of his high-level policymaker and confidential position,'' the superintendent of the Salado Independent School District "stepped over the line'' by backing one slate of school-board candidates over another in an election in which his performance had become the main issue.

A series of High Court cases over the years has addressed the balance between the free-speech and association rights of public employees and the needs of government agencies to provide efficient public service.

Generally, the Court has said that public employees may comment on matters of public concern without fear of being fired. It has also held, however, that certain employees in top-level policymaking jobs are exempt from a ban on firings based on political affiliation.

The Texas case involves Nolan L. Kinsey, who sued the Salado district on free-speech and other grounds after he was dismissed in 1988. Mr. Kinsey had been superintendent of the small district since 1981, but by 1988, his performance had become a school-board issue.

Opposition Slate Wins

With three seats on the seven-member board up for election, Mr. Kinsey aligned himself with the three board members running for re-election who were supportive of him. A separate slate of candidates who opposed the superintendent was also on the ballot.

Mr. Kinsey talked to small groups of voters to voice support for the incumbents. He also published a letter in the newspaper praising one of his supporters on the board.

The three candidates opposed to the superintendent won the election, and they formed a four-person majority with another board member who opposed Mr. Kinsey. After trying unsuccessfully to buy out the superintendent's contract, the board voted to dismiss him with full pay.

Mr. Kinsey sued, alleging that his First Amendment rights to free speech were infringed because he el12lwas terminated based on what he said about a matter of public concern.

A jury awarded him $250,000 in damages, but the trial judge set aside the award and ruled in favor of the school district.

A panel of the Fifth Circuit court ruled 2 to 1 to overturn the trial judge. But after a rehearing, the full circuit court ruled 13 to 2 in favor of the school district. The Fifth Circuit has jurisdiction over Louisiana, Mississippi, and Texas.

While Mr. Kinsey's speech touched on matters of public concern, the majority said, his high-level and confidential position as superintendent potentially allowed to "disrupt and prevent effective performance.''

"There can be no doubt that as a result of his activities, he could not have an effective relationship with the board,'' the majority wrote.

The case was Kinsey v. Salado Independent School District (Case No. 91-1583).

Mail-Order Sales

Meanwhile last week, the Supreme Court issued a ruling that deflated, for now, states' hopes of raking in new tax revenues from mail-order sales.

The states have been barred under the High Court's 1967 decision in National Bellas Hess v. Department of Revenue from collecting use taxes for mail-order sales unless a company has a physical presence in a state.

Some 35 states have tax laws that would allow such use taxes to be collected. State groups have estimated that these states are missing out on about $3 billion in revenue a year as a result of the ban.

In its 8-to-1 ruling in Quill Corporation v. North Dakota (No. 91-194), the Justices overturned the North Dakota Supreme Court, which had upheld the state's authority to tax an out-of-state mail-order office-supply firm.

The state argued that the requirement of a physical presence of a company in a state for taxing purposes had been rendered obsolete by technological innovations and the explosion in direct marketing.

The legal question before the High Court was whether such taxes violated the constitutional guarantee of due process of the law or interfered with interstate commerce, as the Court in 1967 ruled they did.

The Justices overturned part of their precedent by ruling that due process was no longer a barrier to such taxes, but they said that use taxes would interfere with interstate commerce unless they were authorized by the Congress. The main opinion by Justice John Paul Stevens seemed to invite federal lawmakers to address the issue.

However, past attempts in the Congress to authorize such taxes have failed, and no bills that would do so are currently pending.

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