School principal is not a policymaker under Monell

A unique aspect of Section 1983 litigation is that it is almost impossible to sue a municipality for a civil rights violation. A long time ago, the Supreme Court said that towns, villages and cities cannot be sued under this statute unless the plaintiff can show the civil rights violation was caused by a municipal policy or practice. Policy and practice can be proven in a variety of ways, but that is a difficult task, so most plaintiffs simply sue the individuals who violated their rights. But the question always remains, who is a policymaker?

The case is Agosto v. New York City Dept. of Education, issued on December 4. Plaintiff is a schoolteacher who claims that management violated his rights under the First Amendment because it retaliated against him after spoke out on matters of public concern. As it happens, the Second Circuit (Menashi, Lohier and Cabranes) says that plaintiff actually did not engage in First Amendment speech because his grievance were either personal to him or did not otherwise involve matters that would concern the community. 

Many Section 1983 plaintiffs who sue school districts will argue that the principal who retaliated against them was a municipal "policymaker" because the principal had final authority over the plaintiff's employment. That argument applies the general rule that a final policymaker is the only one who can make policy for the district. The seminal Supreme Court for that principle is Monell v. Dept. of Social Services, 436 U.S. 658 (1978). As the Second Circuit puts it,

Agosto  has  apparently  settled  on  the  theory  that  Ureña’s disciplinary letters and negative evaluations were unreviewable by higher-level  officials  within the Department  of  Education, making Ureña  the  de  facto  final  municipal  policymaker  on those  specific matters involving Agosto. Even assuming that Ureña’s actions were unreviewable, Agosto’s claim  still fails because the Supreme Court has rejected the “concept of ‘de facto final policymaking authority.’”

That argument will not work, the Court says, because it it another way of imposing respondeat superior liability onto the district for the principal's actions, and Monell prohibits that theory of liability. Instead, plaintiff says that "even if Ureña were not the final municipal policymaker for teacher discipline and evaluations, he was the  final  policymaker  at  least  for  his  own  “discriminatory and harassing behavior towards Mr. Agosto.” In support of this proposition, plaintiff cites a few dozen district court rulings that "for  the  proposition  that  'a  public school  principal acts as a final  policymaker  to  the  extent  that  the ultimate  harm  that befell  the  plaintiff  was  under  the  principal’s control.'" The Court of Appeals says these cases were all wrongly decided.

by erroneously equating a principal’s final decisions with  a  municipality’s  final  policies,  those  cases  make  the  same mistake as Agosto. We do not believe that approach is consistent with Monell and accordingly decline to adopt it. Such an approach would risk imposing Monell liability for almost every action a principal takes.

The real policymaker, then is the Department of Education, not the principal. The Second Circuit had previously held as such in an unpublished summary order, Hurdle v. Board  of Education of City of New York, 113 Fed. Appx. 423 (2d Cir. 2004). Agosto's case now confirms this is the law of the Circuit. To that end, this case is an important one for civil rights plaintiffs and their lawyers who seek to prove municipal liability under Section 1983. 

You may ask, who cares about Monell liability when you can sue the individual decisionmakers? Because if the decisionmakers are entitled to qualified immunity, the municipal liability is the only way to win the case, since municipalities cannot invoke qualified immunity. Also, if you think the government employer for some reason will not cover the individual defendant's damages, then you want to sue the municipality.