Michael Wells

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Mt. Healthy City School District Board of Education v. Doyle is among the most important, and least discussed, cases in constitutional tort law. 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. 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." Second, after the principal circulated a memorandum on a teacher dress code, he called a local radio station to criticize the administration. "[Cliting '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. ...

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 "[tihe 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." 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.

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