Petition — Paxman v. Henrico County School Board

80-279 |

No.

'f = Supreme Court, U.S.

FILED

AUG20 1980

MICHAEL RODAK, JR. CLERK

———_—— oe

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

SUSAN PAXMAN AND LESLIE GOUGH,

Petitioners,

Vv,

HENRICO COUNTY SCHOOL BOARD AND

ALBEMARLE COUNTY SCHOOL BOARD, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

PHILIP J. HIRSCHKOP

BERNARD J. DiMuRo

HIRSCHKOP & GRAD, P.C.

108 North Columbus Street

Post Office Box 1226

Alexandria, Virginia 22313

(703) 836-6595

Attorneys for Petitioners

August, 1980

Washington, 0.C. + THIEL PRESS + (202) 638-4521

QUESTION PRESENTED

1. Whether the petitioners were properly denied,

on the basis of the “‘good faith” immunity defense, an

award of backpay in an action under 42 U.S.C. § 1983

for the violation of their constitutional rights by Virginia

school boards in light of this Court’s decision in Owen

v. City of Independence, Missouri, 48 U.S.L.W. 4389

(April 16, 1980).

Osa

(t)

TABLE OF CONTENTS

Page

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es wack hot ac ee Sis Owe eee eccasen sees 2

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CONSTITUTIONAL AND STATUTORY PROVISIONS ... 2-3

ES el 3-5

REASONS FOR GRANTING THE WRIT:

A. The Fourth Circuit’s Decision Is Directly Contrary

To This Court’s Decision In Owen v. City of Inde-

pendence, Missour, 48 U.S.L.W. 4389 (April 16,

a oir hi hs 0, WA bese a 0 0 6} 6 2 0 00 oh 5-7

B. Should This Court Not Reverse The Fourth

Circuit’s Decision Then Petitioners May Be The

Only Persons In Their Class Denied Relief In The

TT 50 ask 6 0 os 6500 0:0 #6 00's 64ers 7-8

ENO ET ET eT OCT EEE Eee 8

TABLE OF AUTHORITIES

- Cases: Page

American Pipe & Construction Co. v. Utah, 414 U.S. 538

Sa 6h a oo a8 8 6.v0 «be ha ho 6 0 Re A Slee 60 5

Cleveland Board of Education v. LaFleur, 414 U.S. 632

i 6d neato oo ah a aie ¢ 80 kw 6 0 6 0lw ewe 3

Heteering v. Wiese, 292 U.S. 614 (1988)... cc ccc vccne 6

Lewis v. Fidelity & Deposit Co., 292 U.S. 559 (1933)....... 6

Monell v. Department of Social Services, 436 U.S. 658

a cin ks af ace h Me ho o.0-0 6 v0 ¥.d 0 kk 888 6

Owen v. City of Independence, Missouri, 589 F.2d 335

Sars ae 6b Neo kee RA oe a ee ee 7

Owen v. City of Independence, Missouri, 48 U.S.L.W.

STEP ee ee ee eee ee passim

Paxman, et al. v. Wilkerson, et al., 390 F. Supp. 442

I Sad i de ds 0 4-6 0b 6. 4:0 'a ben 05 08 6 ew 1,4

(#1)

Page

Paxman, et al. v. Campbell, et al., 612 F.2d 848 (4th

| a eee Se ee Pe es See ee 1,4

Constitution:

United States Constitution, Fourteenth Amendment..... 2,3,4

Statutory Provisions:

A ar ee ea a eee ie ok gee 2,3,5,6

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

SUSAN PAXMAN AND LESLIE GOUGH,

Petitioners,

VU.

HENRICO COUNTY SCHOOL BOARD AND

ALBEMARLE COUNTY SCHOOL BOARD, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Petitioners, Susan Paxman and Leslie Gough, respect-

fully request that a Writ of Certiorari issue to review the

judgment of the United States Court of Appeals for the

Fourth Circuit entered on January 2, 1980 which denied

to the petitioners an award of backpay initially granted

by the district court.

OPINIONS BELOW

Paxman, et al. v. Wilkerson, et al., 390 F. Supp. 442

(E.D. Va. 1975).

Paxman, et al. v. Campbell, et al., 612 F.2d 848 (4th

Cir. 1980).

l

2

JURISDICTION

The decision of the United States Court of Appeals for

the Fourth Circuit, reversing the district court’s decision

in part, was entered on January 2, 1980, and denied the

petitioners an award of backpay initially granted by the

district court. Petitioners’ Petition for Rehearing en banc

was denied on March 27, 1980. On June 24, 1980 peti-

tioners’ application for an extension of time in which

to file a Petition for Certiorari was granted to and includ-

ing August 20, 1980. Jurisdiction of the Court is invoked

pursuant to 28 U.S.C. § 1254(1).

QUESTION PRESENTED

1. Whether the petitioners were properly denied,

on the basis of the “good faith” immunity defense, an

award of backpay in an action under 42 U.S.C. § 1983.

for the violation of their constitutional rights by Virginia

school boards in light of this Court’s decision in Owen

v. City of Independence, Missouri, 48 U.S.L.W. 4389

(April 16, 1980).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

42 U.S.C. § 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be sub-

jected, any citizen of the United States or other

person within the jurisdiction thereof to the depri-

vation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

Fourteenth Amendment to

the United States Constitution:

Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall make

or enforce any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

In 1971 the petitioners, Susan Paxman and Leslie

Gough, brought a bilateral class action under 42 U.S.C.

§ 1983 on behalf of all public school teachers in Virginia.

They sought declaratory relief, as well as backpay, claim-

ing that their teaching contracts were terminated in

violation of the due process and equal protection clauses

of the Fourteenth Amendment.! Specifically, petitioners

asserted that the mandatory maternity leave policies

enforced by Virginia school boards were unconstitu-

tional. These policies required that teachers who became

pregnant, either prior to or during a school term, relin-

quish their positions within certain time guidelines

without consideration of their personal physical condi-

tions or abilities.

On December 6, 1971 suit was filed in district court.

Eventually the district court entered summary judgment

for the petitioners’ class upon this Court’s decision in

1Susan Paxman had signed a contract with the Albemarle

County School Board and Mrs. Gough with the Henrico County

School Board.

4

Cleveland Board of Education v. LaFleur, 414 US.

632 (1974), holding certain mandatory maternity leave

policies, not substantially dissimilar to those in question

here, violative of the due process clause of the Four-

teenth Amendment. Paxman, et al. v. Wilkerson, et al.,

390 F.Supp. 442 (E.D. Va. 1975) (see Appendix at

2a). By that order the district court also amended the

defendant class to consist of members of school boards,

rather than the school boards themselves, and, sua

sponte, redesignated the suit as a class action within

Rule 32(b)(2), rather than Rule 23(b)(1) of the Federal

Rules of Civil Procedure. The district court ordered

that the plaintiff class be offered reinstatement with

backpay.

On January 2, 1980 the United States Court of Ap-

peals for the Fourth Circuit reversed the district court’s

decision in two major respects. Paxman, et al. v. Camp-

bell, et al., 612 F.2d 848 (4th Cir. 1980) (see Appendix

at 28a). First, the Fourth Circuit reversed, for reasons

not at issue here, the district court’s judgment certifying

this suit to proceed as a bilateral class action under Rule

23(b)(2). The court then dismissed all but the named

plaintiffs, Mrs. Paxman and Mrs. Gough, petitioners

herein, and the respective school boards with whom they

had contracts.?

Secondly, the Fourth Circuit’s decision reversed the

district court’s final order as to the award of backpay,

finding that the qualified good faith immunity barred

2The dismissal was without prejudice to the merits of the

controversy and the Fourth Circuit remanded the case to the

district court to entertain sympathetically, under Rule 24 of

the Federal Rules of Civil Procedure, the intervention of those

members of the plaintiff class who taught in Henrico or Albemarle

[footnote continued]

5

any such award. On April 16, 1980 this Court rendered

its decision in Owen v. City of Independence, Missouri,

48 U.S.L.W. 4839, holding that a municipality has no

immunity from liability under 42 U.S.C. § 1983 flowing

from its constitutional violations and may not assert the

good faith of its officers as a defense to liability for back-

pay. On April 21, 1980 petitioners moved the Fourth

Circuit for an order to recall its mandate to consider

reversal or amendment of its original decision in light of

Owen v. City of Independence, Missourt, supra, which

was denied on July 22, 1980.

REASONS FOR GRANTING THE WRIT

A. The Fourth Circuit’s Decision Is Directly

Contrary To This Court’s Decision In

Owen v. City of Independence, Missouri,

48 U.S.L.W. 4389 (April 16, 1980)

The Fourth Circuit’s decision reversing the district

court’s award of backpay to the petitioners is directly

contrary to this Court’s decision in Owen v. City of

Independence, Missourt, supra. The Fourth Circuit

expressly held that petitioners were to be denied a

backpay award based on the good faith of the defendant

school board officials. After a review of the scant case

law, including the appellate decision which this Court

reversed in Owen, supra, the Fourth Circuit noted that:

Counties. The decision further notes that the statute of limitations

is probably tolled for all members of the class originally certified

by the district court under American Pipe & Construction Co. v.

Utah, 414 U.S. 538 (1974). (Appendix at 41a.)

3Indeed this Court noted in Owen, supra, that the Fourth

Circuit’s decision below was one of five courts of appeals divided

[footnote continued]

6

[W]e are of the opinion and hold that the defendant

school officials connected with Henrico and Albe-

marle Counties, in their official capacities, are

immune from the claims of backpay because they

acted in good faith without knowledge that the

acts they took would violate the constitutional

rights of the plaintiffs, and because they did not act

with malicious intent. [See Appendix at 53a.|]

[Emphasis added. ]

This Court in Owen v. City of Independence, Missoun,

supra, held directly to the contrary stating that a munici-

pality may not assert the good faith of its officers or

agents as a defense to monetary liability under 42 U.S.C.

§ 1983.4

The obvious conflict between the Fourth Circuit’s

decision below and the Supreme Court’s decision in

Owen, supra, mandates that this Court grant certiorari

in this matter and summarily reverse the Fourth Circuit’s

decision on the authority of its own intervening decision.

Helvering v. Wiese, 292 U.S. 614 (1933); Lewis v.

Fidelity & Deposit Co., 292 U.S. 559 (1933). These

cases make it clear that it is of no consequence that the

Fourth Circuit’s decision below predated this Court’s

decision in Owen, supra. Indeed the Fourth Circuit’s

on the exact question decided by that decision; i.e., whether local

governmental units are entitled to a qualified immunity based on

the good faith of their officials. Owen v. City of Independence,

Missouri, supra, 48 U.S.L.W. at 4393, n.15.

*The Fourth Circuit recognized that school boards are “persons”

under 42 U.S.C. § 1983 in the context of a suit for backpay

pursuant to Monell v. Department of Social Service, 436 U.S.

658 (1978). The fact that the district court’s final order certified

the defendant class to consist of school board members did not

pose a problem for the court insofar as this Court in Monell, supra,

recognized that these members, sued in their official capacities,

are such “persons” also. Supra, at n.55.

7

decision relied, in part, on the Eighth Circuit’s opinion in

Owen v. City of Independence, Missouri, 589 F.2d 335

(8th Cir. 1978), expressly noting that certiorari had

been granted in that case. The Fourth Circuit would

have more properly stayed its decision below pending

this Court’s decision in Owen, supra, thereby obviating

the need for this unnecessary appeal.

B. Should This Court Not Reverse The Fourth

Circuit’s Decision Then Petitioners May Be

The Only Persons In Their Class Denied

Relief In The Form Of Backpay

The Fourth Circuit’s decision dismissed all of the

unnamed plaintiff and defendant class members leaving

only the petitioners and their respective school board

employers as parties. Nevertheless the Fourth Circuit

remanded the case to the district court to entertain

sympathetically motions for intervention by those

members of the plaintiff class that taught in Henrico

and Albemarle Counties. The court further opened the

possibility that future actions, by Virginia teachers who

terminated their contracts with Virginia school boards

under similarly unconstitutional maternity leave policies,

may be pursued by noting that the statute of limitations

was possibly tolled by the district court’s class certifica-

tion orders. See, n.2, supra. Hence it is possible that

other members of petitioners’ class, as certified by the

district court, may intervene in the district court below

or institute actions of their own claiming that they are

entitled to awards of backpay under this Court’s decision

in Owen, supra. Thus the anomalous situation may

occur where members of the petitioners’ class may obtain

awards of backpay as a result of this Court’s decision in

Owen, supra, while petitioners, whose suit established

the constitutional violations, are denied such relief. This

8

result would be grossly unfair and mandates that this

Court grant certiorari to summarily reverse the Fourth

Circuit’s decision below.

CONCLUSION

For the foregoing reasons, petitioners urge that this

Court issue a Petition for Certiorari to review the decision

below.

Respectfully submitted,

PHILIP J. HIRSCHKOP

BERNARD J. DiMuRO

HIRSCHKOP & GRAD, P.C.

108 North Columbus Street

Post Office Box 1226

Alexandria, Virginia 22313

(703) 836-6595

Attorneys for Petitioners

August, 1980

—

APPENDIX

la

APPENDIX A

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

Civil Action No. 683-71-R

[Filed: March 5, 1975]

SUSAN PAXMAN, et al.

Vv.

WOODROW WILKERSON, et al.

ORDER

In accordance with the memorandum of the Court this

day filed, and deeming it proper so to do, it is ADJUDGED

and ORDERED that:

1. The order of the Court under date of February 14,

1973, staying the judgment entered on January 23, 1973,

be, and the same is hereby, vacated.

2. Defendants’ motions to vacate the order of the

Court of October 30, 1972, be, and the same are hereby,

denied.

§. Plaintiffs’ motion to vacate the order of the Court

of January 23, 1973, be, and the same is hereby, granted

as to all matters except that portion of said order which

granted defendant Wilkerson’s motion for summary

judgment.

2a

4. Defendants’ motions for summary judgment be,

and the same are hereby, denied.

5. The Court’s order of October 30, 1972, be, and

the same is hereby, amended as to that portion of said

order defining the defendant class to read as follows:

‘*. ,. the defendant class is composed of all members of

all public county and city school boards of the State of

Virginia which require that a pregnant school teacher

cease her teaching at some time during her period of

pregnancy other than a time of her own choosing.”

6. The Court’s order of November 22, 1972, be,

and the same is hereby, amended as to that portion of

said order which reads “. . . having concluded that the

action is maintainable as a class action pursuant to Rule

23(b)(1)” to read as follows: “‘. . . having concluded

that the action is maintainable as a class action pursuant

to Rule 23(b)(2).”

7, Plaintiffs’ motion for summary judgment be, and

the same is hereby, granted.

It is further ORDERED that counsel for plaintiffs

submit, within fifteen days from the date of this order,

proposed methods by which backpay or other appro-

priate relief may be computed for each member of the

plaintiff class. The defendants shall, within ten days

thereafter, submit counterproposals if they so desire.

Let the Clerk send a copy of the memorandum and

this order to all counsel of record.

/s/

United States District Judge

Date: 3-5-75

3a

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

Civil Action No. 683-71-R

[Filed: March 5, 1975]

SUSAN PAXMAN, et al.

Vv.

WOODROW WILKERSON, et al.

MEMORANDUM

On December 6, 1971, plaintiffs, Susan Paxman and

Leslie Gough, instituted this class action, pursuant to

42 US.C. § 1983 and Rule 65(b) of the Federal Rules

of Civil Procedure, on behalf of all pregnant teachers

in Virginia against the members of all city and county

school boards having allegedly discriminatory maternity

leave policies which require pregnant teachers to leave

their positions at a fixed time prior to childbirth or

prevent their returning after birth of the child and

prevent teachers from availing themselves of leave policies

commonly available for other teachers who, for medical

reasons, require leaves of absence. The named defendants

consisted of the State Superintendent of Public Instruc-

tion, the Division Superintendents of the Henrico and

Albemarle County Public Schools, and the individual

members of the Henrico and Albemarle County School

Boards. Plaintiffs sought declaratory, injunctive and

4a

compensatory relief and invoked the jurisdiction of the

Court pursuant to 28 U.S.C. §§ 1343(3) and 2201.

The relevant facts in this matter are, in all material

aspects, undisputed. On May 6, 1971, plaintiff Paxman

signed an employment contract for the 1971-72 school

year to teach English at Albemarle High School. Subse-

quent to the signing of the contract, plaintiff learned

she: was pregnant and that her estimated due date was

December 26, 1971. On July 26, 1971, she was notified

by R. Ben Turner, Chairman of the English Department

of Albemarle High School, that she should terminate the

contract in accordance with the maternity leave policy

maintained by the Albemarle County School Board.!

Plaintiff Paxman appeared before the Albemarle

County School Board on August 9, 1971 to request that

1The maternity leave policy then in effect in the Albemarle

County school system provided:

A teacher who becomes pregnant prior to reporting for

duty at the beginning of a new school term shall report this

fact to the Superintendent and obtain a release from her

contract.

A teacher who becomes pregnant after commencing her

contractual duties shall relinquish her position four months

before the expected date of delivery except when the four

months period occurs with only one report card period

remaining to complete the contractual obligations for the

term. The teacher will be required to submit to her principal

a physician’s statement giving the approximate date of

delivery when the pregnancy becomes known.

Teachers in good standing who have completed one year

of service are eligible for maternity leave without pay. Such

teachers will be allowed to return to the system at a time

mutually acceptable to the teacher and the administration.

AT THE DISCRETION OF THE SUPERINTENDENT AND

PRINCIPAL, TEACHERS WHO BECOME PREGNANT MAY CON-

TINUE BEYOND THE ESTABLISHED TERMINATION DATE

WHENEVER SUITABLE REPLACEMENTS CANNOT BE FOUND.

5a

she be allowed to fulfill her contract. At that time

she presented a letter from her physician, Dr. Guy M.

Harbert, Jr., in which he stated that, in the absence of

unforeseen complications, he knew of no medical reason

she could not teach until the termination of her preg-

nancy. On August 10, 1971, Mr. Thomas Hurlburt,

Clerk of the Albemarle County School Board, wrote to

plaintiff Paxman to indicate that the Board had decided

to terminate her contract in accordance with their then

policy.

With respect to plaintiff Gough, on April 30, 1971,

she signed an employment contract to teach mathematics

at J. R. Tucker High School in Henrico County for the

1971-72 school term, which commenced on August 23,

1971. On or about October 1, 1971, she informed the

Henrico County School Board that she was pregnant and

that the expected due date was March 29, 1972. She

also requested to be permitted to complete the semester

which ended in January of 1972. On October 6, 1971,

Mr. A. P. Hall, Jr., Director of Personnel for the Henrico

County Public Schools, informed plaintiff Gough that

her employment contract would be terminated as of

November 23, 1971, which was apparently the date

required pursuant to the Henrico County School Board

pregnancy regulation then in effect.?

2The Henrico County regulation provided:

Pregnancy of four months duration shall be sufficient

cause for termination of contract, and earlier if deemed

advisable. This regulation may be waived by the superin-

tendent or his designated representative in individual cases

whereby the teacher may continue for another thirty (30)

days or so if deemed to be in the best interest of the school

system.

[footnote continued]

6a

On or about October 22, 1971, plaintiff Gough’s

physician, Dr. William T. Moore, provided her with a

letter, which she forwarded to the School Board, in

which he stated that he had given her permission to work

until her expected due date as long as the pregnancy

progressed normally. On November 11, 1971, plaintiff

Gough received a letter from Joseph B. Seller, Assistant

Superintendent for General Administration and Personnel

for Henrico County Public Schools, in which he indicated

that the School Board had denied her request to teach

until the end of the semester, January 23, 1972, but due

to the inability of the School Board to find a replace-

ment, she would be allowed to teach until December 17,

1971.

In view of the lengthy history of this matter, a reca-

pitulation of the proceedings is in order prior to turning

to the motions now pending before the Court. Following

the institution of this action, the named county defend-

ants filed appropriate answers to the complaint and each

If the employee continues to work during the pregnancy,

the school board shall not be held liable in case of miscar-

riage, accident or any injury to the mother or the offspring.

The teacher shall be required to submit to the Director

of Personnel a physician’s statement certifying the expected

delivery date and approval of continuation of employment.

Any teacher failing to notify the personnel office of

pregnancy at least thirty (30) days before the end of the

fourth month may be refused re-employment in the future.

A teacher who is on leave of absence, or who has resigned

due to pregnancy, may not be employed as a substitute

until such time as she would ordinarily be eligible for

re-employment.

A period of sixty (60) days must elapse after the delivery

date before a teacher may be contracted to teach. A medical

statement must be presented verifying the teacher is physi-

cally able to return to work.

7a

of the defendants filed motions to dismiss which the

Court subsequently denied. The suit was conditionally

declared a class action on October 30, 1972.

The matter came on for argument on November 15,

1972 on plaintiffs’ motion for summary judgment as well

as motions for summary judgment filed on behalf of

each of the named defendants. Having expressed its view

from the bench that plaintiffs were entitled to the relief

sought, and concluding that the action was maintainable

as a class action pursuant to Rule 23(b)(1), the Court

gave notice, under date of November 22, 1972, to each

member of the defendant class that it would entertain

written motions any member wished to file as to why

any such member should be declared an inappropriate

member should be declared an inappropriate member of

the class. Motions for exclusion were filed on behalf

of the School Board of the City of Staunton, Virginia,

and on behalf of each of the named county defendants,

which were also subsequently denied.

On January 23, 1973, the Court, by written memo-

randum, reiterated the opinion it had previously stated

from the bench that school board regulations setting

forth special provisions for termination of employment

or special leave policies, or other special provisions by

reason of pregnancy, were violative of the Fourteenth

Amendment to the United Staies Constitution. The

Court further indicated that this conclusion was premised

on Cohen v. Chesterfield County School Board, 326

F. Supp. 1159 (E.D. Va. 1971), which presented substan-

tially identical issues as in the instant cause,? and which

3In Cohen, the Chesterfield County rule provided that while

termination of employment of an expectant mother might be

extended if the superintendent received written recommendations

[footnote continued]

'»

8a

had been affirmed by a divided panel of the Fourth

Circuit Court of Appeals on September 14, 1972. The

Court noted, however, that on January 15, 1973, the

Fourth Circuit had reversed its earlier decision following

a rehearing en banc. Cohen v. Chesterfield County

School Board, 474 F.2d 395 (4th Cir. 1973). Considering

itself duty-bound to follow the law as enunciated by its

appellate court, this Court accordingly granted summary

judgment for the defendants and dismissed the action.

Thereafter, on February 7, 1973, plaintiffs moved the

Court to vacate its order of January 23, 1973 and to

refrain from entering a final order until such time as the

United States Supreme Court had an opportunity to rule

in the case of Cleveland Board of Education v. LaFleur,

455 F.2d 1184 (6th Cir. 1972),* for which a petition for

a writ of certiorari had been filed on November 26, 1972,

and until such time as counsel for plaintiff in Cohen,

who were the same attorneys serving as counsel for the

plaintiffs in the instant matter, had an opportunity to

file and obtain a ruling on a petition for a writ of cer-

tiorari in that matter. On February 14, 1973, the Court,

considering said motion to be one properly brought

under Rule 60(b)(6), Fed. R. Civ. P., ordered, pursuant

to Rule 62(b), Fed. R. Civ. P., that its previous judgment

from the expectant mother’s physician and her principal, and if

the superintendent felt that an extension would be in the best

interests of the pupils and school involved, termination would,

without such recommendations, become effective at least four

months prior to the expected birth of the child.

4In LaFleur, a divided panel of the Sixth Circuit Court of

Appeals held that the Cleveland rule, which required maternity

leave at the beginning of the fifth month of pregnancy and a

three-month post-delivery waiting period before becoming eligible

to return to teaching, violated the Equal Protection Clause of the

Fourteenth Amendment.

9a

be stayed pending disposition of plaintiffs’ motion to

vacate.

On March 5, 1973, plaintiffs filed a notice of appeal

from this Court’s order of January 23, 1973 in which

the Court had granted defendants’ motion for summary

judgment. The named county defendants, as well as

the School Board of the City of Staunton, thereafter

filed motions to dismiss plaintiffs’ appeal. In addition,

these parties filed notices of cross-appeal from this

Court’s orders of October 30 and November 22, 1972,

maintaining the class action nature of this suit.

Subsequently, on April 23, 1973, the Supreme Court

granted certiorari in both LaFleur and Cohen, 411

U.S. 947, to resolve the conflict between the Courts of

Appeals regarding the constitutionality of mandatory

maternity leave policies for public school teachers. These

matters were argued on October 15, 1973 and a decision

was rendered on January 21, 1974 in which the Supreme

Court held that such mandatory termination provisions

violated the Due Process Clause of the Fourteenth

Amendment. 414 U.S. 632 (1974). On the basis of that

ruling, plaintiffs in the instant matter filed a motion for

summary judgment on February 20, 1974, which, in

light of the fact that this action was then on appeal,

caused the Court to inform the parties on March 14,

1974 that no further action would be taken while the

matter was before the Court of Appeals. On August 2,

1974, the Fourth Circuit, in a per curiam opinion, dis-

missed the appeal for lack of a final appealable order,

finding that this Court’s stay of the order from which

the parties had appealed was still in effect.

Presently before the Court, therefore, are plaintiffs’

motions to vacate the Court’s order of January 23, 1973

and for summary judgment. Also before the Court are

10a

motions filed on behalf of the named county defendants

to vacate the Court’s order of October 30, 1972 and

cross-motions for summary judgment. On the basis of

the considerable record before it, the Court deems all

matters in this action ripe for disposition.

The named defendants advance basically four points

in support of their motions. First, they argue that they

are immune from suit since they are not “‘persons’’ under

§ 1983 and since they acted in good faith and in accord

with longstanding principles of law. Next, the defend-

ants contend that plaintiffs’ claims are now moot in light

of the school boards’ adoption of new policies which

strike all references to maternity leave and instead treat

these matters as they do all other extended absences due

to medical conditions. Third, they suggest that neither

the plaintiffs nor the defendants represent classes oi

interested individuals over which the Court may exercise

its jurisdiction. Finally, defendants argue that on the

basis of the facts before the Court, the instant matter is

distinguishable from and, therefore, not controlled by

the Supreme Court’s opinion in Cleveland Board of

Education v. LaFleur, supra, 414 U.S. 632 (1974).

With respect to defendants’ first two contentions, the

Court concludes that while a defense of immunity from

damages clearly has been incorporated into § 1983

doctrine, Skinner v. Spellman, 480 F.2d 539 (4th Cir.

1973); Eslinger v. Thomas, 476 F.2d 225 (4th Cir.

1973); Kirstein v. Rector & Visitors of University of

Virginia, 309 F.Supp. 184 (E.D. Va. 1970), this defense

does not apply to plaintiffs’ claims for back pay, which

are not simply claims for damages but are rather an

integral part of the equitable remedy of reinstatement.

Eslinger v. Thomas, supra at 230 n.4, citing Harkness v.

Sweeny Independent Schooi District, 427 F.2d 319 (5th

lla

Cir. 1970), and Smith v. Hampton Training School for

Nurses, 360 F.2d 577, 581 (4th Cir. 1966).

Moreover, the contention raised specifically by the

Henrico County defendants who, relying on City of

Kenosha v. Bruno, 412 U.S. 507 (1973), argue that they,

in their official capacities, are not ‘“‘persons”’ for the

purposes of obtaining either monetary or injunctive relief

pursuant to 42 U.S.C. § 1983, has been rejected by this

Court on a number of recent occasions. See Hirschkop

v. Virginia State Bar Ass’n, No. 74-0243-R, Mem. decis.

at 7-9 (E.D. Va., Jan. 7, 1975); Hogge v. Hedrick, No.

74-0488-R, Mem. decis. at 4-5 (E.D. Va., Nov. 29,

1974). Suffice it to say that acceptance of defendants’

contention would emasculate the Civil Rights Act of

1871 and would effectively overturn the line of cases

originating in Monroe v. Pape, 365 U.S. 161 (1961),

which have considered the principle settled that 42

U.S.C. § 1983 and 28 U.S.C. °§ 1343(3) confer juris-

diction upon federal district courts to hear civil rights

actions for both monetary and equitable relief against

municipal officials in their official capacities. In the

absence of specific guidance from either its appellate

court or the Supreme Court of the United States, this

Court is unwilling to return to a view of federal law

discarded nearly a decade and a half ago. In light of

this determination, the Court further concludes that

plaintiffs’ claims were not made moot by the subsequent

policy changes adopted by the named defendants. See

Arkansas Educational Ass'n v. Board of Education, 446

F.2d 763 (8th Cir. 1971).

As to the defendants’ third point, they suggest, on the

one hand, that the plaintiffs have failed to satisfy either

the numerosity requirements of Rule 23, Fed. R. Civ. P.,

_ or the requirement that they be representative of a class

l2a

in that the facts and circumstances controlling plaintiffs’

rights to continue teaching may vary from those of other

pregnant teachers because of differences in school board

policies, in prescribed termination dates, in teachers’

general health and responsibilities, and in the availability

of replacement teachers necessary to insure continuity

in the educational process. At the same time, the named

defendants assert that the defendant class is inappro-

priate. In this regard, the Henrico County defendants

argue, in an argument unappealing to the Court, that

since the various local school boards are constitutionally

independent of one another, in the absence of some

connective policy link they should not be made to

represent all other boards who may be similarly situated.

The Albemarle County defendants take a different

approach arguing, once again under City of Kenosha v.

Bruno, supra, 412 U.S. 507 (1973), that since school

boards are not “‘persons”’ under § 1983, the Court’s order

of October 30, 1972, in which it defined the defendant

class as “‘all public county and city school boards of the

State of Virginia which require that a pregnant school

teacher cease her teaching at some time during her period

of pregnancy other than a time of her own choosing,”

was improper.

While the instant matter may indeed present varying

facts and circumstances with respect to the individual

members of the plaintiff and defendant classes, Rule 23

does not require that all members of the class be iden-

tically situated. Kristiansen v. John Mullins & Sons, Inc.,

59 F.R.D. 99 (E.D. N.Y. 1973). Nor, for that matter,

contrary to the contention of the Henrico County

defendants, does the rule require that all persons in the

class desire to take advantage of the rights they may

have. The fact that some members of the class are

13a

personally satisfied with the action complained of is

irrelevant, Norwalk CORE v. Norwalk Redevelopment

Agency, 395 F.2d 920 (2d Cir. 1968), and the injunctive

or declaratory relief referred to in the rule does not

require the Court to look into the particular circum-

stances of each member of the class. See 3B Moore’s

Federal Practice, 9 23.40, at 23-651, 23-654 (2d ed.

1974).

This action appears to contain all the requisites of a

class action as contemplated by the drafters of Rule 23,

as amended. See Advisory Committee’s Note 39 F.R.D.

98, 102 (1966). The plaintiff class is readily identifi-

able as all pregnant teachers in the Commonwealth of

Virginia. That the class is so numerous that joinder of

all members is impracticable is evident from the fact that

in the Henrico County school system alone, fifty-six

teachers were separated during the 1970-71 and 1971-72

school years for reasons of pregnancy.5 See Exhibits H

and I to defendant Campbell’s affidavit, filed October 6,

1972. Moreover, questions of law and fact are indeed

common to the class, they being whether a member of

the plaintiff class was forced to leave or refrain from

returning to her employ as a teacher due to reasons of

pregnancy as a result of school board policy utilizing a

5The Henrico County system was but one of 138 public school

systems maintained in Virginia during that period; the number of

teachers in the Henrico system represented approximately 3.4%

of the number of teachers in the public school systems throughout

the State of Virginia. Moreover, defendants’ reliance on this

Court’s denial of class action status in Spratley v. Surry County

School Board, No. 475-70-R (E.D. Va. 1972), is misplaced since

there the Court found that only three teachers had in any way

been affected by the county’s allegedly unconstitutional maternity

leave policy.

l4a

conclusive presumption of incapacity.® Further, there is

no question in the Court’s mind that the claims of the

representative parties are typical of the claims of the

plaintiff class or that they, the named plaintiffs, will

fairly and adequately protect the rights of the class

members.’

With respect to the Albemarle County defendants’

contention concerning the impropriety of defining the

defendant class in terms of ‘‘school boards,’ the Court

concludes there is some merit to this claim in light of

the Fourth Circuit’s intervening per curiam opinion in

Singleton v. Vance County Board of Education, No.

73-2057 (4th Cir., May 8, 1974), wherein a majority

of the panel held that the “Board of Education’ was

©Manard v. Miller, 53 F.R.D. 610 (E.D. Va. 1971), aff’d, 405

U.S. 982 (1972), which is cited by the Henrico County defendants,

is clearly distinguishable from the case at bar. There, in an action

by Virginia college students claiming the right to register to vote

in the state, a divided panel of this Court, finding that the plain-

tiffs were not representative of other students desiring registration,

held that the suit could not be maintained as a class action in that

the facts and circumstances controlling the right of applicants to

register may vary in respect to each of them, especially in such

matters as residence and domicile, as well as in regard to the

nature and content of the questions propounded to them by their

respective registrars at the time they first sought registration. In

the instant matter, however, the class as well as the questions of

law and fact have been so carefully limited as to eliminate many

if not all of the problems identified by the majority of the Court

in Manard.

7The rights of members of the plaintiff class may well be

severely prejudiced should the Court grant the defendants’ motion

to vacate its order maintaining this matter as a class action in

light of the apparent running of the applicable two-year statutory

limitation period in effect at the time this suit was instituted. See

Almond v. Kent, 459 F.2d 200 (4th Cir. 1972).

15a

not a “person” subject to suit under § 1983.8 In the

interests of justice, however, and in view of its earlier

analysis of City of Kenosha v. Bruno, supra, 412 U.S.

507 (1973), the Court deems it appropriate to amend,

sua sponte, tne defendant class to include the “‘members’”’

of all such school boards which maintained allegedly

discriminatory policies with regard to maternity leave

for pregnant teachers.

One final matter remains with respect to the class

action nature of this suit. In its order of November 22,

1972, the Court stated that it deemed this action to be

maintainable as a class action pursuant to Rule 23(b)(1),

Fed. R. Civ. P. Upon reconsideration, the Court has

concluded that this is not the case. Since plaintiffs’

primary claim appears to involve equitable relief, with

damages in the form of back pay being but a part of

the equitable relief needed to obviate the alleged past

discrimination, this matter is more properly designated

a class action pursuant to Rule 23(b)(2). See Pettway v.

American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir.

1974); Sabala v. Western Gillette, Inc., 371 F.Supp.

385 (S.D. Tex. 1974). Accordingly, the Court’s previous

order defining the defendant class will be vacated and

modified to the extent it reflects a finding at variance

with this determination.

Finally, and as previously noted, the named defendants

have moved the Court for summary judgment, alleging

8While the Court finds persuasive Judge Winter’s dissenting

opinion in Singleton, in which he suggests that it is far from settled

whether a Board of Education is a ‘“‘municipal corporation” within

the meaning of § 1983 under both Monroe v. Pape, supra, 365

U.S. 167 (1961), and City of Kenosha, the Court, as previously

noted, considers itself duty-bound to follow the authority of its

appellate court.

16a

that Cleveland Board of Education v. LaFleur, supra,

414 US. 632 (1974), does not support plaintiffs’ motion

for summary reversal of the Court’s stayed judgment in

favor of defendants. The Henrico County defendants

specifically contend that the maternity leave policy

in effect within their system at the time this suit was

instituted combined termination date guidelines with suf-

ficient flexibility to avoid the rigid policies condemned

in LaFleur and its companion case, Cohen v. Chesterfield

County School Board. They allege that depending upon

the teacher’s health, the school calendar, the availability

of a replacement teacher and the teacher’s responsibil-

ties, their former policy permitted a pregnant teacher

to work well past her fifth month of pregnancy.

Once again, the Albemarle County defendants have

chosen a different route. They suggest that in the case

of plaintiff Paxman, it was not an instance of a teacher

being terminated under a five-month rule, such as was

disapproved in LaFleur. Rather, they argue that she was

terminated solely under the provision of the Albemarle

County maternity leave policy which stated:

A teacher who becomes pregnant prior to reporting

for duty at the beginning of a new school term shall

report this fact to the Superintendent and obtain a

release from her contract.

The Albemarle County defendants contend that this rule

has a rational relationship to the educational goal of

continuity of instruction recognized by the Supreme

Court in LaFleur and is, therefore, not in violation of

the Due Process Clause of the Fourteenth Amendment.

In LaFleur, the Supreme Court found that maternity

leave regulations directly affect the fundamental freedom

of choice in matters of marriage and family life and,

accordingly, the Court posited that “the Due Process

17a

Clause of the Fourteenth Amendment requires that such

rules must not needlessly, arbitrarily, or capriciously

impinge upon this vital area of a teacher’s constitutional

liberty.” 414 U.S. at 640. While the question squarely

before the Court in LaFleur was whether the interests

advanced in support of the rules of the Cleveland and

Chesterfield County School Boards—namely, continuity

of classroom instruction and the necessity of keeping

physically unfit teachers out of the classroom —justified

the particular maternity leave procedures they had

adopted, the language of Mr. Justice Stewart’s majority

opinion supplies the appropriate test for evaluating the

validity of the instant claims.

In terms of plaintiff Gough’s claim against the Henrico

County defendants, there is no question that Cohen v.

Chesterfield County School Board, supra, is dispositive

of this matter, for, while the defendants seek to avoid

Cohen by arguing that their maternity leave provision

provided considerably more flexibility than that which

the Supreme Court declared unconstitutional, the Court

concludes that this is a distinction without a difference.

While it is true that the relevant portion of the Henrico

County policy provided that the five-month termination

rule may be waived in individual cases ‘‘whereby the

teacher may continue for another thirty (30) days or

so if deemed to be in the best interest of tne school

system,” so, too, in Cohen, the Chesterfield County

policy allowed that the ‘‘[t]ermination of employment

may be extended if the superintendent receives written

recommendations from the expectant mother’s physician

and her principal, and if the superintendent feels that an

extension will be in the best interest of the pupils and

school involved.”

18a

That the Henrico County policy provided some flexi-

bility is evidenced by the fact that plaintiff Gough was

permitted to teach until December 17, 1971, while her

original termination date following notification of her

pregnancy to the school board had been established as

November 23, 1971. This extension, however, was

provided solely for the convenience of the school board

and, despite her request to do so, clearly did not permit

plaintiff Gough to teach until the end of the school

semester in January of 1972. These facts are nearly

identical to those presented in Cohen, concerning which

the Supreme Court noted:

Similarly, if continuity were the only goal, it seems

ironic that the Chesterfield County rule forced

Mrs. Cohen to leave work in mid-December rather

than at the end of the semester in January, as she

requested. [414 U.S. at 643.]

Moreover, the Court finds that the school board’s

willingness to extend plaintiff Gough’s termination date

for its own purposes weighs heavily against the ‘‘con-

clusive presumption”’ of incapacity apparently underlying

the remainder of the board’s leave policy. Since the

Henrico County defendants advance no _ justification

for their procedures other than those rejected by the

Supreme Court in LaFleur and Cohen, the Court must

conclude that the Henrico County maternity leave

provision was unconstitutional and that plaintiff Gough’s

due process rights were thereby violated.

Although plaintiff Paxman’s claim and the Albemarle

County provision pursuant to which her teaching con-

tract was terminated prior to the start of the 1971 school

year provide a slightly different question, the analysis

articulated in LaFleur is similarly controlling. Certainly

where a teacher is pregnant prior to the commencement

19a

of classes, there is good reason to believe that she will

require a leave of absence at some point and of some

minimal duration during the school year just prior to

and shortly after the birth of her child. Likewise, under

such circumstances there exists a reasonable expectation

that continuity of instruction may be affected, such that

a temporary substitute or more permanent replacement

teacher will be required, and that difficult administrative

decisions might be avoided by a scheme which is tanta-

mount to a unilateral rescission of the employment

contract.

With respect to the former concern, the Court in

LaFleur noted:

We thus conclude that the arbitrary cutoff dates

embodied in the mandatory leave rules before us

have no rational relationship to the valid state

interest of preserving continuity of instruction. As

long as the teachers are required to give substantial

advance notice of their condition, the choice of

firm dates later in pregnancy would serve the

boards’ objectives just as well, while imposing a

far lesser burden on the women’s exercise of con-

stitutionally protected freedom. [414 US. at 643.]

Similarly, with regard to the latter contention, the

Court in LaFleur responded to the school boards’ argu-

ment that the mandatory termination dates serve the

interest of administrative convenience since there are

many instances of teacher pregnancy and the rules

obviate the necessity for case-by-case determinations,

in the following manner:

While it might be easier for the school boards to

conclusively presume that all pregnant women are

unfit to teach past the fourth or fifth or even the

first month of pregnancy, administrative con-

venience alone is insufficient to make valid what

20a

otherwise is a violation of due process of law. The

Fourteenth Amendment requires the school boards

to employ alternative administrative means, which

do not so broadly infringe upon basic constitu-

tional liberty, in support of their legitimate goals.

[414 US. at 647.]

Since the Albemarle County School Board provision

under which plaintiff Paxman’s contract was terminated

clearly embodies an irrebuttable presumption of unfit-

ness, regardless of the stage of the pregnancy at the

time the school year begins, which presumption unduly

penalizes a female teacher for choosing to bear a child,

it too must be considered to be constitutionally defective.

Accordingly, plaintiff Paxman is entitled to relief in the

form of back pay consisting of the earnings she would

have received, less any amounts actually earned, had she

been permitted to teach until the termination date which

she herself had selected.

In view of the Court’s determination that this action is

maintainable as a class action pursuant to Rule 23(b)(2),

Fed. R. Civ. P., and, further, in view of the Court’s

conclusion that the plaintiff class is entitled to summary

judgment against the members of the defendant class, as

previously defined, the Court will order that counsel for

the plaintiffs will, within fifteen days after the date of

the order accompanying this memorandum, submit to

the Court proposed methods by which backpay or other

appropriate relief may be computed for each member

of the plaintiff class. The defendants shall have ten

days thereafter in which to file counterproposals. Cf.

Robinson v. Lorillard Corp., 319 F.Supp. 835, 843

(M.D. N.C. 1970), aff’d, 444 F.2d 791, 802 n.4 (4th

Cir. 1971).

2la

An order consistent with the findings of the Court

shall issue.

/s/

United States District Judge

Date: 3-5-75

22a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 75-1506

SUSAN PAXMAN and LESLIE GOUGH,

Appellees,

v.

DR. W. E. CAMPBELL, Division Superintendent,

Henrico County Public Schools; MRS. JOHN

DECESEBIO, Member, Henrico County School

Board; CECIL CHILDRESS, Member, Hen-

rico County School Board; MRS. BETTY

McMULLIN, Member, Henrico County School

Board; CECIL F. JONES, Member, Henrico

County School Board; OLIVER J. SANDS,

JR., Member, Henrico County School Board;

REV. WALTER WHITT, Member, Henrico

County School Board,

Appellants.

No. 75-1507

SUSAN PAXMAN, et al.,

Appellees,

v.

SCHOOL BOARD OF THE CITY OF ~~

STAUNTON, VIRGINIA,

Ae Appellant.

23a

No. 75-1508

SUSAN PAXMAN, et al.,

Appellees,

v.

CLARENCE S. McCLURE, Division Superintend-

ent, Albemarle County Public Schools; COMER

SMITH, Member, Albemarle County School

Board; DOUGLAS WHITE, Member, Albemarle

County School Board; ALLEN KINDRICK,

Member, Albemarle County School Board;

CARL M. VAN FOSSEN, Member, Albemarle

County School Board; H. EDWARD CHAPMAN,

Member, Albemarle County School Board;

RODGER RINEHART, JR., Member, Albemarle

County School Board,

Appellants.

No. 75-1678

SUSAN PAXMAN, et al.,

Appellees,

Vv.

DR. W. E. CAMPBELL, Henrico Division Superin-

tendent; MRS. JOHN DEUSEBIO, Member,

Henrico County School Board; CECIL CHIL-

DRESS, Member, Henrico County School Board;

MRS. BETTY McMULLIN, Member, Hen-

rico County School Board; CECIL F. JONES,

Member, Henrico County School Board; OLIVER

J. SANDS, JR., Member, Henrico County School

Board; REV. WALTER WHITT, Member, Hen-

rico County School Board,

Appellants.

24a

No. 75-1679

SUSAN PAXMAN, et al.,

Appellees.

v.

CLARENCE S. McCLURE, Division Superin-

tendent, Albemarle County Public Schools;

COMER SMITH, Member, Albemarle County

School Board; DOUGLAS WHITE, Member,

Albemarle County School Board; ALLEN

KINDRICK, Member, Albemarle County School

Board; CARL M. VAN FOSSEN, Member,

Albemarle County School Board; H. EDWARD

CHAPMAN, Member, Albemarle County School

Board; RODGER RINEHART, JR., Member,

Albemarle County School Board,

Appellants.

No. 75-1751

SUSAN PAXMAN, et al.,

Appellees,

v.

SCHOOL BOARD OF THE CITY OF

STAUNTON, VIRGINIA,

Appellant,

VIRGINIA SCHOOL BOARD ASSOCIATION,

Amicus.

25a

No. 75-1792

SUSAN PAXMAN, et al.,

Appellees,

v.

MARY ANNE LECOS, ANTHONY T. LANE,

MONA BLAKE, JOHN A. CHRISTIANS, RUTH

H. DELL, SAMUEL L. EURE, JR., ALFRED

S. HODGSON, ROBERT G. HUNT, ANN

KAHN, RODNEY F. PAGE, and MARIE B.

TRAVENSKY, individual members of the Fairfax

County School Board,

Appellants,

VIRGINIA SCHOOL BOARD ASSOCIATION,

Amicus.

No. 75-1948

SUSAN PAXMAN, et al.,

Appellees,

v.

VIRGINIA BEACH, VIRGINIA CITY SCHOOL

BOARD and their constituent members,

Appellants.

26a

No. 75-1951

SUSAN PAXMAN, et al.,

Appellees,

v.

MARY ANNE LECOS, ANTHONY T. LANE,

MONA BLAKE, JOHN A. CHRISTIANS, RUTH

H. DELL, SAMUEL L. EURE, JR., ALFRED

S. HODGSON, ROBERT G. HUNT, JOHN

A. GOLDSMITH, WILLIAM E. PERKLIK,

WILLIAM S. HOOFNAGLE, WALTER KURYLO,

NATHANIAL J. ORLEANS, DAVID J. PATTI-

SON, JOHN F. PEARSON, LENORA PLISS-

NER, JEFFERY O. WELLBORN, WILLIAM B.

WRENCH, RUFUS W. WRIGHT, GENE S.

BERGOFFEN, DANIEL R. ROSS, THOMAS

BRADLEY SHIPP, and PAUL FREEMAN,

Appellants.

No. 75-1963

SUSAN PAXMAN, et al.,

Appellees,

Vv.

VIRGINIA BEACH, VIRGINIA CITY SCHOOL

BOARD, and the CHESAPEAKE, VIRGINIA

CITY SCHOOL BOARD and their constituent

members,

Appellants.

27a

No. 75-1973

SUSAN PAXMAN, et al.,

Appellees,

Uv.

CLARENCE S. McCLURE, COMER SMITH,

DOUGLAS WHITE, ALLEN KINDRICK, CARL

M. VAN FOSSEN, H. EDWARD CHAPMAN,

and RODGER RINEHART, JR.,

Appellants.

No. 75-1989

SUSAN PAXMAN, et al.,

Appellees,

v.

ROBERT C. BEAM, JR., GERALD L. BIEHN,

THOMAS W. DIXON, GEORGE A. LaCAS,

WILLIAM B. OBENSCHAIN, C. S. PEELER,

D. W. PEMBERTON, VIRGINIA G. SHIPPLETT,

JOHN CHILES, A. ERSKINE SPROUL, and

ROBERT H. TRUXELL, being persons who

were or are, during the period December 6, 1969

to June 25, 1975, members of the Staunton,

Virginia City School Board, in their individual

and official capacities, and the SCHOOL BOARD

OF THE CITY OF STAUNTON, VIRGINIA,

Appellants.

28a

No. 75-1990

SUSAN PAXMAN, et al.,

Appellees,

v.

DR. W. E. CAMPBELL, MRS. JOHN DEUSEBIO,

CECIL CHILDRESS, MRS. BETTY McMULLIN,

CECIL F. JONES, JR., REV. WALTER WHITT,

and OLIVER J. SANDS, JR.,

Appellants.

Appeals from the United States District Court for

the Eastern District of Virginia, at Richmond.

Robert R. Merhige, Jr., District Judge.

Argued November 14,1978 Decided January 2, 1980

Before HAYNSWORTH, Chief Judge, WINTER,

BUTZNER, RUSSELL, WIDENER, HALL,

and PHILLIPS, Circuit Judges.

James L. Sanderlin (Warren E. Zirkle, McGuire, Woods

& Battle, on brief), Thomas J. Cawley (McCandlish,

Lillard, Church & Best, on brief) (Richard C. Hotvedt &

Harry A. Rissetto, Morgan, Lewis & Bockius; Andrew J.

Ellis, Jr., Mays, Valentine, Davenport & Moore; Benham

M. Black, City Attorney, Staunton, Virginia; William G.

Broaddus, County Attorney for Henrico County, John L.

Knight and Michael K. Jackson, Assistant County Attor-

neys; George B. Little, James K. Cluverius, John S.

29a

Graham, III, Browder, Russell, Little, Morris & Butcher,

on brief) for Appellants; Philip J. Hirschkop (John B.

Mann on brief) for Appellees; (Frederick T. Gray, Walter

E. Rogers, Robert L. Musick, Jr., Williams, Mullen &

Christian, on brief) for Amicus Curiae Virginia School

Boards Association; (Martin J. Flynn, Richard M. Sharp,

Frederick C. Schafrick, Shea & Gardner; David Rubin;

Michael W. Smith, on brief) for Amici Curiae National

Education Association and the Virginia Education

Association.

30a

PER CURIAM:

I.

All of the members of the court except Judge Phillips

concur in parts I, II, III, and IV of Judge Widener’s

opinion. Judge Phillips concurs in parts I, III, and IV

of that opinion and concurs in the result in part II

thereof, but for reasons expressed in his separate opinion.

II.

Four judges would deny monetary relief.

As to Mrs. Gough, Judges Russell and Widener concur

in part V of Judge Widener’s opinion and would deny

monetary relief for the reasons expressed therein. As to

Mrs. Paxman, Judge Russell would deny all relief to her

for the reasons expressed in his separate opinion, while

Judge Widener would deny monetary relief to her for

the reasons expressed in part V of his opinion.

Judges Haynsworth and Phillips concur in the denial

of monetary relief for the reasons expressed in their

separate opinions.

Judges Winter, Butzner, and Hall dissent from part V

of Judge Widener’s opinion and would grant monetary

relief for the reasons expressed in Judge Winter’s opinion.

For the same reasons, they do not agree with Judges

Haynsworth and Phillips in the reasoning for their votes

to deny monetary relief. Neither do they agree with

Judge Russell’s reasons for denying monetary relief to

Mrs. Paxman.

3la

Ill.

Four judges would grant reinstatement. Judges Winter,

Butzner, Widener, and Hall concur in part VI of Judge

Widener’s opinion and would grant reinstatement for the

reasons expressed therein.

Judge Haynsworth and Judge Phillips dissent from

part VI of Judge Widener’s opinion for the reasons

expressed in their opinions. They would not grant

reinstatement.

While Judge Russell agrees with the principles ex-

pressed in part VI of Judge Widener’s opinion, he dissents

from the result reached therein for the reasons expressed

in his separate opinion.

IV.

All the members of the court concur in that part of

part VII of Judge Widener’s opinion which remands to

the district court the question of attorneys’ fees in that

court.

Four judges would remand the case for ascertainment

of an appellate attorneys’ fee in excess of $500.

Judges Winter, Butzner, and Hall believe the $500

appellate attorneys’ fee mentioned in part VII of Judge

Widener’s opinion is grossly inadequate. They would

remandfor ascertainment of an appellate attorneys’ fee

in excess of $500 for the reasons set forth in part III

of Judge Winter’s opinion in which they concur.

Judge Haynsworth also believes the appellate attor-

neys’ fee mentioned in Judge Widener’s opinion is

inadequate. He would remand for the ascertainment

of such attorneys’ fees for the reasons set forth in his

opinion.

32a

Judges Russell, Widener, and Phillips would grant an

appellate attorneys’ fee of $500 as set forth in part VII

of Judge Widener’s opinion.

The mandate of this court will require that the case be

remanded for action not inconsistent with this opinion,

and, in addition, upon remand, the district court will

inquire into and ascertain appropriate appellate attor-

neys’ fees for the plaintiffs’ attorneys as set forth in

part III of Judge Winter’s opinion and part IV of Judge

Haynsworth’s opinion.

All the members of the court concur in this per curiam

opinion.

The judgment of the district court is accordingly

AFFIRMED IN PART,

REVERSED IN PART,

and REMANDED.

33a

WIDENER, Circuit Judge:

This litigation arises out of allegedly unconstitutional

maternity leave policies enforced by the Albemarle and

Henrico County, Virginia school boards in 1971. Appel-

lees, Susan Paxman and Leslie Gough, brought a class

action under 42 U.S.C.A. § 1983! on behalf of all

pregnant public school teachers in Virginia. They sought

declaratory and injunctive relief, as well as back pay,

claiming that their teaching contracts were terminated

in violation of the due process and equal protection

clauses of the Fourteenth Amendment. Relief was

sought against the school boards as well as their members,

both in their official and personal capacities, as repre-

sentatives of a class of defendants ultimately defined by

the district court as consisting of ‘‘all persons who were

or are, during the period December 6, 1969 to June 25,

1975, members of a public county or city school board

of the Commonwealth of Virginia which required that

a pregnant school teacher cease her teaching at some

1§ 1983. Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress.

Jurisdiction is claimed under 28 U.S.C. §§ 1343 and 2201.

§ 2201, a part of the Declaratory Judgment Act, of course, is

not a section upon which jurisdiction may be based. There must

be an independent basis for jurisdiction before declaratory relief

may be sought under § 2201. Wright & Miller, Federal Practice

and Procedure, § 2766 (1973), and cases there cited. Jurisdiction,

here, is thus based on § 1343, and the cause of action on § 1983.

Our holding applies to cases under these statutes only. The Su-

preme Court made this same point clear in its decision in City of

Kenosha v. Bruno, 412 U.S. 507, esp. p. 513-514 (1973).

34a

time during the period of pregnancy other than a time

of her own choosing.”

From a judgment of the district court permitting this

suit to be maintained as a class action under F.R.C.P.

23(b)(2) and granting broad monetary and injunctive

relief against the defendant members of school boards

in both their official and personal capacities this appeal

was taken.

For reasons that follow, we reverse the district court’s

judgment permitting this suit to proceed as a class action

under Rule 23(b)(2). We also reverse the district court’s

granting of monetary relief against the named defendants

in either their official or personal capacities. We affirm,

however, the holding below that the maternity leave

policies under which Mrs. Paxman and Mrs. Gough were

required to leave their jobs violated the due process

clause of the Fourteenth Amendment, and hold that

injunctive relief, in the form of reinstatement, is available

against the Division Superintendents and members of

the Henrico and Albemarle County School Boards in

their personal capacities.?

I.

The facts are rather uncomplicated and are similar in

all material respects for each of the appellees. Susan

Paxman was an English teacher employed by the Albe-

marle County School Board. On May 6, 1971, she signed

an employment contract for the 1971-72 school year.

2The record indicates that in late 1972 both the Albemarle and

Henrico County School Boards rescinded their maternity leave

policies. Therefore, any issues relating to declaratory or injunctive

relief against the future enforcement of those policies have become

moot.

35a

Shortly thereafter, she discovered she was pregnant, and,

on July 26, 1971, was notified by the Chairman of the

Albemarle High School English Department that she

would have to terminate her contract in accordance

with school policy requiring immediate termination if

pregnancy occurred prior to the start of the school year.

On August 9, Mrs. Paxman appeared before the school

board to request that she be permitted to perform her

contract. She introduced a letter from her doctor, indi-

cating her fitness to teach until the termination of her

pregnancy. Nevertheless, the following day she was

formally notified that her contract would be terminated

in accordance with standard policy.

On April 30, 1971, Leslie Gough signed a contract

with the Henrico County School Board to teach mathe-

matics during the 1971-72 school year. She informed

the School Board of her pregnancy on about October 1,

1971, and requested permission to complete the semester.

3The Albemarle County maternity leave policy provided: A

teacher who becomes pregnant prior to reporting for duty at

the beginning of a new school term shall report this fact to the

Superintendent and obtain a release from her contract.

A teacher who becomes pregnant after commencing her con-

tractual duties shall relinquish her position four months before the

expected date of delivery except when the four months period

occurs with only one report car period remaining to complete the

contractual obligations for the term. The teacher will be required

to submit to her principal a physician’s statement giving the

approximate date of delivery when the pregnancy becomes known.

Teachers in good standing who have completed one year of

service are eligible for maternity leave without pay. Such teachers

will be allowed to return to the system at a time mutually accept-

able to the teacher and the administration.

At the discretion of the Superintendent and Principal, teachers

who become pregnant may continue beyond the established termi-

nation date whenever suitable replacements cannot be found.

>

36a

On October 6, 1971, she was notified that her contract

would be terminated as of November 23 under a policy

deeming pregnancy of four months’ duration sufficient

cause for termination.4 Mrs. Gough, too, introduced

a physician’s letter indicating her fitness to continue

teaching. She was ultimately allowed to continue until

December 17 because of the difficulty of finding a re-

placement, but was not permitted to finish the semester.°

On December 6, 1971, this suit was filed in the district

court. It was conditionally certified as a class action

by the district court on October 30, 1972, with the

defendant class composed of all public, county, and city

school boards in Virginia with mandatory maternity leave

policies. On November 15, 1972, arguments were heard

on motions for summary judgment, and, in its order

dated November 22, 1972, the district court entered

summary judgment in favor of the plaintiff class. In that

same order, the district court determined that the suit

should be maintained as a class action under F.R.C.P.

23(b)(1).6

“The Henrico County policy provided, in pertinent part:

Pregnancy of four months duration shall be sufficient

cause for termination of contract, and earlier if deemed ad-

visable. This regulation may be waived by the superintendent

or his designated representative in individual cases whereby

the teacher may continue for another thirty (30) days or

so if deemed to be in the best interest of the school system.

5The school semester ended on January 23, 1972.

6F.R.C.P. 23(b)(1):

An action may be maintained as a class action if the pre-

requisites of subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against indi-

vidual members of the class would create a risk of

[footnote continued]

37a

On January 15, 1973, this court, sitting en banc,

reversed an earlier panel decision in Cohen v. Chesterfield

County School Board, 474 F.2d 395 (4th Cir. 1973),

and upheld the constitutionality of a maternity leave

policy substantially similar to the ones involved in this

case. The district court properly overruled itself and

entered summary judgment in favor of the defendant

class. That judgment was stayed, however, pending final

disposition of the Cohen case by the Supreme Court.

On January 21, 1974, that Court reversed our decision

in Cohen and held certain mandatory maternity leave

policies, not substantially dissimilar to those in question

here, violative of the due process clause of the Four-

teenth Amendment. Cleveland Board of Education

v. LaFleur, 414 U.S. 632 (1974). The district court

then re-entered its grant of summary judgment for the

plaintiffs in the instant case, and at the same time, in

the same order, modified its previous rulings in two

respects that are critical to certain aspects of the dispo-

sition of this appeal. First, it amended the defendant

class to consist of members of school boards rather

than school boards themselves.? Secondly, it modified

(A) inconsistent or varying adjudications with respect

to individual members of the class which would establish

incompatible standards of conduct for the party opposing

the class, or

(B) adjudications with respect to individual members of

the class which would as a practical matter be dispositive of

the interests of the other members not parties to the adjudi-

cations or substantially impair or impede their ability to

protect there interests.

7The Court stated it followed Singleton v. Vance County Board

of Education, 501 F.2d 429 (4th Cir. 1974), in which this court

held that a school board is not a person within the meaning of

§ 1983.

38a

the class action designation of this suit, sua sponte, as

coming within Rule 23(b)(2), rather than 23(b)(1), on

the ground that primarily equitable relief was involved.

If the matter of designating the case a class action under

F.R.C.P. 23(b)(3) was ever considered, we do not find it.

II.

A class action is maintainable under Rule 23(b)(2) if

the four requirements of Rule 23(a)® are met, and if

‘“‘the party opposing the class has acted or refused

to act on grounds generally applicable to the class,

thereby making appropriate final injunctive relief

with respect to the class as a whole.” F.R.C.P.

23 (b)(2).

As is clear from the language of the Rule, it is applicable

to situations in which a class of plaintiffs seeks injunctive

relief against a single defendant—the party opposing the

class—who has acted on grounds generally applicable to

the plaintiff class. See Judicial Conference Advisory

Committee, Notes to Rule 23(b)(2), 39 F.R.D. 69, 102

(1966). To proceed under 23(b)(2) against a class of

defendants would constitute the plaintiffs as “the party

opposing the class,’ and would create the anomalous

situation in which the plaintiffs’ own actions or inactions

could make injunctive relief against the defendants

8Under Rule 23 (a), it is requisite to the maintenance of all class

actions that:

(1) the class is so numerous that joinder of all members is

impracticable,

(2) there are questions of law or fact common to the class,

(3) the claims or defenses of the representative parties are

typical of the claims or defenses of the class, and

(4) the representative parties will fairly and adequately protect

the interests of the class.

39a

appropriate. Wright and Miller, Federal Practice and

Procedure, Civil, § 1775 at 21-22 (1972), states the

proposition:

It should be noted that the injunctive relief must

be sought in favor of the class. As a result, an

action to enjoin a class from pursuing or failing to

pursue some course of conduct would not fall under

Rule 23(b)(2) and would have to qualify under

Rule 23(b)(1) or Rule 23(b)(3) in order to be given

class action treatment.

To the same effect is the 1978 pocket part of the text.

We do not feel that the presence of a plaintiff class in

this action alters our construction of the Rule, for, in

addition to the literal language of Rule 23(b)(2), we rely

upon the clearly expressed purpose for which the Rule

was adopted:

Subdivision (b)(2). This subdivision is intended to

reach situations where a party has taken action or

refused to take action with respect to a class, and

final relief of an injunctive nature or of a corre-

sponding declaratory nature, settling the legality of

the behavior with respect to the class as a whole, is

appropriate. Judicial Conference Advisory Com-

mittee, Notes on Rule 23(b)(2), 39 F.R.D. 69, 102

(1966).

We therefore hold that the district court erred in certi-

fying this case as a class action under Rule 23(b)(2),

and direct that the unnamed members of the defendant

class be dismissed (that is, all defendants except those

connected with Albemarle and Henrico Counties), such

dismissal, however, being without prejudice as to the

merits of the controversy.?

9Our holding in no way prevents the utilization of Rule 23(b)

(2) in cases in which a class of plaintiffs brings suit against more

[footnote continued]

i lll

40a

Such action renders unnecessary our consideration of

whether summary judgment was entered against those

defendants in the court below without meeting the

fundamental requisites of due process of law. Members

of the school boards other than Albemarle and Henrico

strenuously argue that they were not notified of the suit

until after summary judgment had been entered against

them on the merits of the case.!° See Pennoyer v.

Neff, 95 U.S. 714 (1877); Goldberg v. Kelly, 397 US.

254, 267 (1970). We do not reach that question here.

Ashwander v. TVA, 297 U.S. 288, 341 (1936) (Mr.

Justice Brandeis concurring).

Whether a class action by classes of plaintiffs could

have been maintained against the Albemarle and Henrico

defendants does not appear from the record. The plain-

tiffs did not attempt to establish that such a class would

be sufficiently numerous under Rule 23(a), and the

district court did not enter a class certification under

Rule 23(c)(1) with respect to such a class.

than one named defendant, each one of which has taken like

action affecting directly the individual members of the plaintiff

class. See East Texas Motor Freight v. Rodriguez, 431 U.S. 345

(1977); Hill v. Western Electric Co., Inc., No. 76-2439 (4th

Cir. 1979). Indeed, an intention of the Rule was to facilitate

class action treatment in the civil rights area, such as where, for

example, an employer and a union are joined as defendants in a

complaint alleging racial discrimination in employment. See

Wright, supra, § 1775.

In this case, in contrast, more than 130 different school boards

were free to adopt maternity leave policies of entirely unknown

differences or similarities. It is uncontradicted that there was no

state-wide policy in force, centrally directed or otherwise.

10Prior to the district court’s March 5, 1975 holding, in which

the court held that the plaintiff class was entitled to summary

judgment, members of such school boards that maintained al-

legedly discriminatory maternity leave policies were not part of

the defendant class as it had been previously defined.

4la

The plaintiffs have the burden of establishing that

the requisites of Rule 23(a) are met before they may

proceed as class representatives. Carracter v. Morgan,

491 F.2d 458, 459 (4th Cir. 1973); Poindexter v.

Teubert, 462 F.2d 1096 (4th Cir. 1972). We are of

opinion, however, that a remand for a class action

determination is not necessary to a fair disposition of

potential claims arising out of the Henrico and Albemarle

County maternity leave policies. In American Pipe &

Construction Co. v. Utah, 414 U.S. 538 (1974), the

Supreme Court held that

where class action status has been denied solely

because of failure to demonstrate that ‘‘the class

is sO numerous that joinder of all members is

impracticable”, the commencement of the original

class suit tolls the running of the [statute of limita-

tions] for all purported members of the class who

make timely motions to intervene after the court

has found the suit inappropriate for class action

status. Id. at 552-53.

We follow American Pipe and remand to the district

court to entertain sympathetically motions for interven-

tion under F.R.C.P. 24 for a reasonable period of time

to be set by the district court for those members of

the plaintiff class who taught in Henrico or Albemarle

Counties.!!

11F.R.C.P. 24(b) provides for intervention in the discretion of

the district judge upon timely application when, inter alia, an

applicant’s claim or defense and the main action have a question

of law or fact in common. Rule 24(a) concerns intervention as

a matter of right. See American Pipe, p. 525, n.22.

While our remand pertaining to intervention applies only to

school teachers in Henrico and Albemarle Counties, there is broad

language in American Pipe indicating that the statute of limitations

[footnote continued]

42a

Iil.

Appellants’ contention that the maternity leave

policies under which Mrs. Paxman and Mrs. Gough lost

their jobs were not constitutionally defective under

Cleveland Board of Education, supra, does not need

extended discussion. The district court found that

the two policies contained the same “‘irrebutable pre-

sumptions of unfitness’? found unconstitutional by the

Supreme Court. We agree, and, for reasons stated by

the district court, affirm its judgment on that point. We

note that Mrs. Paxman’s and Mrs. Gough’s pregnancies

were to terminate during the school year, as did Mrs.

Cohen’s.

IV.

We next consider whether the district court erred in

awarding monetary relief, in the form of back pay,

against the individual defendants in their individual

capacities. We hold that the defense of qualified immu-

nity applies to this case and is sustained as a matter

of law.

In Wood v. Strickland, 420 U.S. 308 (1975), the

Supreme Court held that, where a suit for damages was

brought against school officials by suspended students,

those officials enjoyed an immunity from the imposition

of personal monetary liability as long as they acted in

good faith discharge of their official duties. This rule of

qualified immunity is grounded in policy considerations

would be tolled for all members of the class originally certified by

the district court. “We are convinced that the rule most consistent

with federal class action procedure must be that the commence-

ment of a class action suspends the applicable statute of limitations

as to all asserted members of the class who would have been parties

had the suit been permitted to continue as a class action.” 414

USS. at 554.

43a

encouraging school officials to exercise independent

discretion in daily decision making, free from the intimi-

dating effect of knowing that a wrong decision made

in good faith could result in personal financial loss. It

also reflects a recognition that capable candidates for

school board positions could well be deterred from

serving if a contrary rule were to prevail. See Wood uv.

Strickland, supra, at 319-21; Scheuer v. Rhodes, 416

U.S. 232, 241-42 (1974). “‘[I]t is not a tort for the

government to govern.’ Dalehite v. United States, 346

U.S. 15,57 (1953) (Mr. Justice Jackson dissenting).

We reject the distinction, urged by appellees, that,

since they characterize the relief sought as equitable,

the qualified immunity doctrine has no application.

Assuming, arguendo, that such characterization is correct,

money would yet flow ‘rom the pockets of individual

school board members to satisfy a judgment, and the

policies enunciated in Wood are no less persuasive.

While school officials may not be able to avail them-

selves of ignorance or disregard of “‘basic, unquestioned,

constitutional rights,’ Wood, supra, at 322, neither

should they be charged with bad faith for not antici-

pating the eventual outcome of constitutional issues

over which, for an example especially applicable here,

federal courts were differing. See Wood, p. 317. The

Albemarle and Henrico County School Boards enforced

a policy the validity of which was the subject of con-

flicting opinions in two United States Courts of Appeals,

compare Cohen v. Chesterfield County School Board,

474 F.2d 395 (4th Cir. 1973), with LaFleur v. Cleveland

Board of Education, 465 F.2d 1184 (6th Cir. 1972),

not to mention the divided panel and en banc opinions

of this court in Cohen, as well as the Supreme Court’s

division in LaFleur. It is also worth noting that both

44a

named school boards rescinded their maternity leave

policies following the initial panel decision of this court

declaring such policies unconstitutional. Under these

circumstances, and in the absence of any evidence

indicating a reason the rule should not apply, we are of

opinion the good faith immunity defense is established

as a matter of law. There is no indication the individual

defendants ‘‘knew or reasonably should have known

that the action[s] [t]he[y] took within the[ir] sphere

of official responsibility would violate the constitutional

rights of the ... [plaintiffs], or that ... [they] took

the action ... with ... malicious intention.’ Wood,

p. 322.

V.

The next issue before us is whether, under 42 U.S.C.

§ 1983, monetary relief in the form of backpay may

be awarded from the school board’s treasury by suing

individual school board members in their official capaci-

ties. We hold that in the instant case it may not.

Monell v. Department of Social Services, 436 US.

658 (1978), held that school boards were ‘“‘person{s]”’

within the meaning of § 1983 in the context of a suit

for backpay. It also held that their members sued in their

official capacities were such ‘‘person[s].’’ Monell, n.55.

By so ruling, the Court overturned its holding in Monroe

v. Pape, 365 U.S. 177 (1961), that Congress had not

intended that mhnicipal corporations be included as

“person[s]” within the meaning of the statute. Munici-

pality liability can only result where a constitutional

tort results “pursuant to official municipal policy of

some nature.” Monell, at 691. The Court by so stating

left intact that part of Monroe that rejected the presence

45a

of liability on the grounds of respondeat superior. It

stated:

We conclude, therefore, that a local government

may not be sued under § 1983 for an injury inflicted

solely by its employees or agents. Instead it is when

execution of government’s policy or custom,

whether made by its lawmakers or by those whose

edicts or acts may be said to represent official

policy, inflicts the injury that the government as

an entity is responsible under § 1983.

436 US. at 694.

The Court in Monell, while rejecting the doctrine of

absolute immunity for local governing bodies, refrained

from commenting on the scope of any municipal immu-

nity. Monell, supra, at 701. Although that issue was

not before it, the Court, in a separate part of the opinion

devoted solely to the subject of immunity, chose to

state: “We express no views on the scope of any munici-

pal immunity beyond holding that municipal bodies

sued under § 1983 cannot be entitled to an absolute

immunity, lest our decision that such bodies are subject

to suit under § 1983 ‘be drained of meaning’.’”’ Monell,

at 701.

Applying Monell to our case, the members of the

school boards and school administrative offices sued in

their official capacities are “‘person[s]” under § 1983 and

are therefore subject to suit for their unconstitutional

acts. The acts complained of here were the result of

policies set out by the school boards involved. Therefore,

the defendants are among those who may be liable under

Monell. Burt v. Abel, 585 F.2d 613 (4th Cir. 1978).!2

12In Burt and in Cale v. City of Covington, 586 F.2d 311

(1978), we considered the application of Monell, but in neither

case was the question of immunity considered or decided.

46a

The remaining issue, then, is whether the Court’s

decision in Monell leaves available any qualified immu-

nity as a bar to liability of a school board official sued

in his official capacity. We think that it does.

Prior to Monell, we had held in Eslinger v. Thomas,

476 F.2d 225 (1973), that good faith immunized a state

official sued only in his official capacity from liability for

money damages. Eslinger was a case in which a female

student at the University of South Carolina was deprived

of employment as a page in the South Carolina Senate

because of her sex. She brought suit against the State

Senators and various officers of the State Senate, in-

cluding Thomas, the Clerk thereof. She did not sue

Thomas in his individual capacity, rather only in his

official capacity as Clerk of the Senate. 340 F. Supp.

866, 890, 895. We held that the clerk was ‘‘. . . acting

in good faith and, we agree, should not be liable for

damages.” 476 F.2d at 228. We reasoned that “... in

the area of sex discrimination, the inchoate state of legal

guidelines suggests that good faith, coupled with reason-

able grounds to believe one is acting within the law,

should be sufficient to preclude liability for damages.

[Footnote omitted.] Properly applied, such a test,

based on the circumstances of each case, maintains the

effectiveness of § 1983 actions, while providing conscien-

tious state officials with some protection against the

cutting edge of a rapidly developing legal doctrine.’ 476

F.2d at 229. While we did require the district court to

give injunctive and declaratory relief in Eslinger, the only

money item sued for was $40 per week “. .. wages asa

result of the defendants’ discriminatory refusal to hire

her as a page.” 349 F. Supp. at 889. We stated that no

question of reinstatement was involved in the case, and

the damage claim, although labeled as one for backpay,

47a

was independent from plaintiff’s claim for injunctive

relief to ban invidious sex classifications in the hiring of

pages. 476 F.2d at 230, n.10. We see no distinction

between lost wages as a result of an unconstitutional

resolution of the South Carolina State Senate and lost

wages as a result of an unconstitutional resolution of a

school board, whether the lost wages be called backpay

or damages. The Court, in Monell, we think has ended

any distinction, sometimes made, between backpay

and money damages, for it described the “backpay,”

sued for as “‘equitable relief)’ Monell, p. 662, as ‘“‘mone-

tary ... relief,’ Monell, p.690. As in Eslinger, in

Monell there was no question of reinstatement. Bertot,

infra, slip opinion p. 8-9, is in accord.

Few courts have ruled on the issue of the existence

of good faith immunity as a defense to a § 1983 suit

since the decision in Monell. A search of the circuits

finds only a handful of cases discussing this matter.

Those courts which have ruled on the issue support our

belief that the defense of good faith immunity must be

made available to municipal government officials acting

in their official capacities.

In Bertot v. School District No. 1, Albany Co., Wy.,

—— F.2d —_, No. 76-1169 (10th Cir. 1978), over a

dissent, the court held that a school district was immune

from monetary damages on the ground that the school

district and its members, acting in their official capaci-

ties, acted in good faith. The court there reasoned that

if the doctrine of qualified immunity for good faith

actions were available to officers acting in their individual

capacities, it should likewise be available to the board

collectively and its members acting in official capacities.

The reasons compelling the good faith immunity are just

as compelling in all instances, the individuals are the

48a

same, and the restrictions on independent judgment are

the same, the court said.!3 Accordingly the court refused

to overturn the trial court’s decision refusing recovery

for the plaintiff on a jury finding that the officials had

acted in good faith.

In Owen v. City of Independence, Mo., 589 F.2d 335

(8th Cir. 1978), cert. granted 48 L.W. 3189 (1979), the

court construed Monell to imply the local governing

bodies may assert a limited immunity defense in § 1983

suits brought against them. Here, the court concluded

that although the defendant city had stigmatized the

plaintiff, a former police chief, through the city’s actions

regarding the plaintiff’s firing and subsequent grand jury

investigation, and as a result had violated the plaintiff’s

constitutional rights, the plaintiff could not recover

backpay from the city because the city and its officials

had acted in good faith. The court recognized the

validity of a defense of good faith immunity to cover

both individual defendants and the city as well, insulating

them from monetary liability. Owens, supra, at 338.

In Ohland v. City of Montpelier, __ F. Supp. —_,

100 L.R.R.M. 2975 (D. Vt., 1979), the district court of

Vermont applied the good faith immunity defense to

local governing bodies. The court reasoned that the

arguments in favor of strict governmental liability are

not stronger than those in favor of vicarious liability

which was specifically rejected by the Court in Monell.

The court further reasoned that both the legislative

history of § 1983 and the unique problems inherent in

the public sector require the insulation of government

13For a discussion of those reasons, see Wood v. Strickland,

420 U.S. 308 at 313-322. The court relied on Wood and Butz v.

Economou, 438 U.S. 478 (1978), and Scheuer v. Rhodes, 416

U.S. 232 (1974).

49a

from monetary responsibility for acts done with no

knowledge that those acts may later be ruled unconsti-

tutional in the same manner as individuals would be so

protected.

The district court of Maryland in Gross v. Pomerleau,

465 F.Supp. 1167 (1979), held the defense of good

faith immunity was available to local governing bodies

and their members acting in their official capacities.

Relying upon O’Connor v. Donaldson, 422 U.S. 563

(1975), and Wood v. Strickland, 420 U.S. 308 (1975),

the court noted that the Court’s holding in Monell, that

municipalities could be sued, did not mean that they

could not avail themselves of the defense of good faith

immunity that is necessary for the continuation of

government operating vigorously for the public interest.

All of these decisions support this court’s ruling in

Eslinger and illustrate that Monell should not disturb

our reasoning there. There, to repeat, in a § 1983 case,

we held that the Clerk of the South Carolina Senate,

sued in his official capacity, was not liable for damages

while acting in good faith pursuant to a resolution of

the South Carolina Senate. We conclude that Monell

does not overturn that decision. Therefore, we think

that Eslinger is persuasive and do not depart from it

here. As a result, under Eslinger, the plaintiffs are not

entitled to monetary relief in the form of backpay

because the defendant school board officials acted in

good faith. Nowhere in the record is there any indication

that the defendants were acting in other than good faith

coupled with reasonable grounds to believe they were

acting within the law. Eslinger at 229.

The Court in recent years has decided that a variety

of public officials are entitled to a degree of immu-

nity if their work is to go forward. E.g., Procunier v.

50a

Navarette, 434 U.S. 555 (1978); Wood v. Strickland,

420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232

(1974). Those and other cases are based on the reasons

that public decision makers should not bear the burden

of mistakes made in good faith in the course of exercising

their discretion; that a too rigid standard of liability

would inhibit their actions which are necessary for the

public good; that the good faith fulfillment of their

responsibilities within the bounds of reason will not

be punished; and that they should not exercise their

discretion with undue timidity. Wood established such

an immunity defense for members of school boards and

quoted Scheuer as follows, at p. 321:

‘Public officials, whether governors, mayors or

police, legislators or judges, who fail to make

decisions when they are needed or who do not

act to implement decisions when they are made

do not fully and faithfully perform the duties of

their offices. Implicit in the idea that officials

have some immunity—absolute or qualified—for

their acts, is a recognition that they may err. The

concept of immunity assumes this and goes on

to assume that it is better to risk some error and

possible injury from such error than not to decide

or act at all.”

Wood went on to establish a two-prong test. for ascer-

taining whether or not school board members should

receive a limited immunity for their official acts, and,

although that was in the context of student discipline,

we see no reason it should not apply here. The rule is

that a member of a school board is entitled to immunity

in a suit for damages if he is acting sincerely and with

a belief that he is doing right, but he is “not immune

from liability for damages under § 1983 if he knew or

reasonably should have known that the action he took

5la

within his sphere of official responsibility would violate

the constitutional rights of the student affected, or if

he took the action with the malicious intention to cause

a deprivation of constitutional rights or other injury

to the student. That is not to say that school board

members are ‘charged with predicting the future course

of constitutional law.’ A compensatory award will be

appropriate only if the school board member has acted

with such an impermissible motivation or with such

disregard of the student’s clear established constitutional

rights that his action cannot reasonably be characterized

as being in good faith.’’ 425 U.S. at 322.

While it may be true that there is additional reason

to extend immunity to school board members sued in

their individual capacities than those sued only in their

official capacities, the fear of having to pay a judgment

out of personal resources being an added consideration,

we, nevertheless, do not believe that the additional

reason to grant a defense of good faith immunity to a

school board member sued in his individual capacity

detracts from the reasons we have mentioned, which

apply equally to the member whether sued in his indi-

vidual or representative capacity. As one court has

pointed out, a conscientious school board member will

hesitate to act if he knows that his actions, although

taken in the utmost good faith and belief in their validity,

may subject the board or municipality which he serves

to extensive financial liability, and this is especially true

when we consider that municipal treasuries are of limited

resources.

Perhaps the best reasoned analysis of this problem we

have found is in Ohland, at p. 2989, which we quote

and endorse:

52a

‘We hesitate to extend the logic of strict liability in

the realm of private enterprise to the governmental

arena. Taxpayers are not private investors willingly

accepting the risks of doing business in return for

anticipated profits. Moreover, governments, unlike

private business, cannot choose to avoid acting

in areas of greater risk. Nor can governments

minimize liability for constitutional torts by

engaging in ‘product development’ or improved

procedures when the contours of future constitu-

tional decisions are unknown, and the rights of

different groups of possible plaintiffs are poten-

tially in conflict.” [Citations omitted. ]

“Because so many governmental decisions affect

large numbers of potential plaintiffs, a rule of

retroactive liability would pose a substantial threat

to the quality and efficiency of governmental

decisionmaking. The losses that some persons may

be forced to bear because a court’s finding of

unconstitutionality comes too late are not funda-

mentally different from the losses that many

individuals bear as a result of governmental deci-

sionmaking in the areas of health and safety and

economic regulation. [Citation omitted.] In all

these cases, absent an explicit legislative deter-

mination that these losses will be shared, they

should be considered part of the accepted risk

attending governmental decisionmaking in a

complex society.”’ !4

Applying the Wood test, then, to the facts in this case,

there is no evidence at all of any impermissible motiva-

tion on the part of any defendant in entering into or

administering the contracts involved. The federal circuits

14By quoting from Ohland, 23 do not imply our decision is

based on retroactivity; rather, it is based on good faith immunity.

53a

were divided on the question, as was this court. No rule

of settled indisputable law was established on the subject

until LaFleur, and before the decision in LaFleur both

Henrico and Albemarle Counties had revoked their

previous pregnancy regulations following our panel

opinion, and did not even attempt to reinstate them

when that opinion had itself been overruled by the en

banc court. Malicious intention on the part of the

defendants is not even claimed, and, if it were, there

is no evidence to support it.

Accordingly, we are of opinion and hold that the

defendant school officials connected with Henrico and

Albemarle Counties, in their official capacities, are

immune from the claims of backpay because they acted

in good faith without knowledge that the acts they took

would violate the constitutional rights of the plaintiffs,

and because they did not act with malicious intent.!44

VI.

As we have noted, Monell decided that a municipality

(school board) in a suit for backpay was a ‘“‘person”’

within the meaning of 42 U.S.C. § 1983. As well, it

decided that in such suits individual members of the

school board sued in their official capacities were such

“person[s]”. The case went on to state that local gov-

erning bodies can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief, as can local

government officials be sued in their official capacities

in those cases in which the local government could be

sued (p. 690 and note 55).!5

144Sala v. County of Suffolk, No. 1056 (2d Cir. 1979), decided

while our case was pending, is consistent with this opinion.

15The declaratory and injunctive aspects of the case were moot,

as the Court acknowledged in its opinion. Monell, p. 661.

54a

Were these statements of the Court not enough, we

think the individual defendants involved here may be

required to perform their official duties in a constitu-

tional manner under Ex parte Young, 209 U.S. 123

(1908).

In our case, the unconstitutional policies relating to

dismissal or leave for pregnancy have been rescinded, so

they are moot. There is no indication the policies will

be reinstated. But the question remains as to whether

Mrs. Paxman and Mrs. Gough should have been offered

reinstatement to their teaching positions, which, of

course, is equitable relief and is prospective.

In Ex parte Young, the Attorney General of Minnesota

was enjoined to conform his future conduct of that

office to the requirements of the Fourteenth Amend-

ment. The relief there “was prospective only.” Edelman

v. Jordan, 415 U.S. 651, 664 (1974). When an official

acts under color of state law in a manner which violates

the Constitution, “. .. he is in that case stripped of his

official or representative character and is subjected in his

person to the consequences of his individual conduct.”

Young, p. 160. We see no difference between Ex parte

Young and the case at hand. The officials here, acting in

good faith under color of state law, have, as municipal

officials, nevertheless acted in an_ unconstitutional

manner. They should be stripped of their ‘official or

representative character,’ Young, p. 160, and required

to “‘conform” their “future conduct of .. . office,’

Edelman, p. 664, to the requirements of the Consti-

tution. The individual defendants, conforming their

conduct of office to the requirements of the Consti-

tution, must offer reinstatement!® to Mrs. Paxman and

16Whether Mrs. Paxman was eligible for medical leave without

pay and its accompanying provision for return to work appears

not to have been considered.

55a

Mrs. Gough at the first available opportunity, upon their

written requests, which will not affect the continuity

of instruction. See LaFleur, p. 648-650; Bertot, slip

opinion p.9. Such requests should be made within a

reasonable time.

VII.

While the defendants have substantially prevailed in

these appeals, we think the plaintiffs are entitled to

an attorney’s fee, from the Henrico and Albemarle

defendants, in the amount of $500, for defending their

reinstatement on appeal, for in that one aspect they

prevailed.

On remand, the district court will decide the question

of attorneys’ fees for the proceedings in that court. See

Burt, p. 617-618; Bonnes v. Long, No. 78-1168 (4th

Cir. 1979).

56a

HAYNSwoRTH, Chief Judge, concurring and dissenting:

I concur in the denial of damages, but for reasons that

differ from those expressed by my brothers. I dissent

from the affirmance of the reinstatement order.

I agree there should be a qualified immunity for

members of school boards used in their official capacities

from claims for damages. I do not agree that there is

any such immunity from awards of back pay incident

to the equitable remedy of reinstatement.

I think that reinstatement is wholly inappropriate

and unwarranted in these cases and that the claims,

while measured by lost pay, as in Monell, are claims for

damages from which the qualified immunity is present.

I do not think that Mrs. Paxman has any constitutional

claim for any relief.

I.

As long ago as Smith v. Hampton Training School for

Nurses, 360 F.2d 577 (4th Cir. 1966), it appears to me

to have been settled that when reinstatement was an

appropriate equitable remedy, the related remedy of a

back pay award was available. That was the decision

of a unanimous en banc court, and, until now, it has

been consistently followed and applied in suits against

defendants sued in their official capacities as shown by

the cases cited in the opinion of Judge Winter.

Of course, we can depart from the rule established

for this court by our en banc decision in 1966 if the

Supreme Court, in effect, has directed us to do it. I do

not read Monell as having done that.

Monell did not involve a claim for reinstatement, as

recognized in Judge Widener’s opinion. Though meas-

ured by lost wages, it was simply a claim for damages,

57a

as is clearly and explicitly stated in the last paragraph

of Judge Gurfein’s opinion. Monell v. Dept. of Soc.

Services, 532 F.2d 259, 267 (2d Cir. 1976). In the

Supreme Court, the opinions are not so explicit in

characterizing the claim. We know from an opinion

from the Second Circuit what it was, however, and it

is perfectly apparent that the Supreme Court in Monell

was not wrestling with a problem of a back pay remedy

in the context of a valid claim for reinstatement. Hence,

I cannot read Monell as saying that this court was wrong

in its earlier cases differentiating between legal and

equitable remedies and treating a back pay claim as

an equitable one when sought in conjunction with a

valid claim for reinstatement.

The thrust of Monell was to enlarge the remedies

available to plaintiffs such as these when suing officials

such as these school board members in their official

capacities. It struck down what theretofore had been

thought an absolute immunity. That thrust seems to be

quite inconsistent with a reading that the Supreme Court,

in passing, proscribed a remedy which theretofore had

been thought generally available.

Thus, if there were a valid claim for reinstatement

here, I think that lost back pay should also have been

awarded.

Il.

This is not a case in which reinstatement is appropriate,

however. The Supreme Court, in Cleveland Board of

Education v. LaFleur, 414 U.S. 632 (1974), found

unconstitutional maternity leave regulations requiring

termination of the teacher’s employment at a fixed

time preceding the expected date of delivery. Such a

regulation was said to impermissibly burden a teacher’s

58a

decision to bear children and to set up an irrebuttable

presumption that, after so many months of pregnancy,

a teacher was physically unable to continue teaching.

The two school boards had attempted to justify their

pregnancy employment termination regulations on the

basis of, among other things, service of the interest in

continuity of instruction. Each of the school teachers

in LaFleur, however, had discovered her pregnancy

only after commencement of the school year, and the

termination of her employment was scheduled to occur

within that school year. Of course, the Supreme Court

effectively demonstrated that the loi.ger period of

teaching by the pregnant teacher would serve the interest

of continuity in instruction substantially better than

the school board’s rules.

In LaFleur, the Supreme Court also considered post-

delivery maternity leave rules. The Cleveland rules

provided that, after delivery of her baby, the young

mother might request a return to service provided it were

done in writing at least six weeks before the beginning

of a semester. She was not assured reemployment,

but the rule provided for priority in reassignment to a

vacancy for which the teacher was qualified. As Cleve-

land’s rule, Chesterfield County’s rule required proof of

physical fitness. It also required assurance that the

child’s care would no more than minimally interfere

with job responsibility. It, however, guaranteed reem-

ployment no later than the first day of the school year

following declaration of the teacher’s eligibility for

reemployment.

These reemployment rules were upheld under constitu-

tional scrutiny. Cleveland had a provision that a teacher

could not request reassignment until her baby was three

months old. That provision was Stricken, but the rest of

59a

the two sets of rules were held proper and enforceable.

In this case, Albemarle County’s rule simply provided

for a return from pregnancy leave at a time mutually

acceptable to the teacher and the administration. That

seems as much of a commitment to the teacher as Cleve-

land’s provision for priority in reassignment at the

commencement of a semester at least six weeks after the

request for reassignment. Henrico County’s regulation

simply provided for the lapse of a period of sixty days

after the birth before the teacher could be recontracted,

the sixty day provision being invalid under LaFleur. It

required a medical statement of the teacher’s physical

fitness. As in Cleveland’s rule, the rules have contained

no explicit guarantee of reemployment, but reemploy-

ment was clearly the contemplation of the rules of both

the school districts involved in this case.

There is in this case no showing of any failure to

comply with any reemployment commitment. Neither

teacher sought post-birth reemployment, and neither

was wrongly denied it. Underly these circumstances,

“reinstatement”’ to a position never sought seems entirely

inappropriate.

If we are now to hold that there is any constitutional

right to reemployment, beyond the state law right to

enforcement of the reemployment rules according to

their reasonable intendment, we will be forging new

ground in a case in which it has not been overtly asserted,

argued or considered.! If we are to hold that a child-

bearing mother has a constitutional entitlement to

1There was no discussion of this matter in the district court’s

opinion. In its final, formal order, reinstatement was directed with

the payment of lost wages as if employment was, or should have

been, continuous. Of course, there is no basis for an assumption

that a childbearing mother would have a continuing availability.

60a

reemployment after delivery of her child, it should be

done only after careful consideration upon a record,

containing findings of fact, which reasonably presents

the question for consideration. There is no such record

here. There being no showing of a violation of a consti-

tutional right to reemployment, there was no showing

of a right to reinstatement.

Since the claim for lost pay is not pendant to any

claim for reinstatement, the qualified immunity defense

should be available.

Iil.

As to the measure of the qualified immunity, I find

myself in general agreement with the opinion of Judge

Phillips.

There is substantially less reason for a qualified immu-

nity for members of a school board sued in their official

capacities than there is when they are sued in their

individual capacities. Subjective good faith may be

the appropriate standard in the latter situation, but

something more ough! to be requisite in the former.

There can be subjective good faith in the presence of

unreasonableness and even foolishness. When defendants

are sued in their official capacities, the standard should

be one of good faith coupled with a standard of reason-

ableness which may include the performance of reason-

able steps to obtain information and advice upon which

to make an informed judgment. That is not to say,

however, that every wrong negligently inflicted by a

municipal official is converted into a constitutional viola-

tion. The constitutional violation should be apparent

before the problem of qualified immunity arises. Only

then need one consider the possible difference between

the qualified immunity available to a defendant sued in

6la

his individual capacity and that available to a defendant

sued in his official capacity.

After Judge Phillips had prepared his opinion, a new

issue of the Columbia Law Review was distributed. In it

there is an article? by an attorney for the plaintiffs in

Monell, who is a lecturer in law at Columbia, in which

he advocates just such an immunity, based upon tort

principles as suggested by Judge Phillips, for munici-

palities and members of their governing bodies when

sued in their official capacities.

He suggests three exceptions to the qualified immunity

rule. He would not allow it at all to the extent the

municipality had been enriched by its violation of the

Constitution or when the constitutional violation was

also a clear violation of local law. He would create an

absolute immunity if the constitutional violation arose

out of an affirmative action program designed and

operated in a good faith effort to conform to what was

perceived to be the requirements of the Constitution.

Of course, we are here concerned with no such possible

exceptions, and I need not consider whether any one

of the three should be recognized. I would embrace the

basic principle that the immunity problem respecting

municipalities and their officials should be approached

in terms of tort principles after a determination, without

resort to such principles, that there has been a depriva-

tion of a constitutional right.

2Schnapper, Civil Rights Litigation After Monell, 79 Col. L.

Rev., 213, 240 et seq.

62a

IV.

I think Mrs. Paxman had no constitutional claim.

In the spring of the year she signed an employment

contract for the next year, and she became aware of

her pregnancy a few days later. She notified the school

board, and weeks before the beginning of the new school

year she was informed that her employment was to be

terminated and that she would be replaced by a teacher

who could be expected to teach through all of the next

school year.

For a teacher known to be pregnant before the start of

a school year, the Albemarle rule expressly provided for

immediate termination. In LaFleur the Supreme Court

recognized the importance of continuity in instruction.

School boards may reasonably believe that the interest

of the children is furthered by beginning the school year

with a faculty each of whom may be expected to teach

throughout the school year. When a teacher discovers

her pregnancy only after the school year has commenced,

there is inevitable discontinuity, and the only question

addressed by the Supreme Court in LaFleur is the right

of the teacher in that context to determine when the

discontinuity will be experienced. I can find nothing in

La¥leur to suggest that continuity of employment of a

teacher of children cannot be considered by a school

board and carry the day in favor of employment of

some one else when the pregnancy is known well before

the school year commences. Hence, I would hold that

Mrs. Paxman suffered no constitutional wrong.

63a

V.

Even under my view, the declaratory relief granted

was enough to make the plaintiffs prevailing parties.

I agree that their lawyers are entitled to allowance of

attorneys’ fees. An award of $500 seems to me quite

inadequate. I would remand to the District Court with

instructions, after consideration of all relevant factors,

to determine and allow a reasonable fee.

64a

WINTER, Circuit Judge, with whom BUTZNER and HALL,

Circuit Judges, join, concurring and dissenting:

We agree with the majority that, for the reasons it

assigns, the district court’s certification of the plaintiff

and defendant classes and its entry of judgment against

the defendant school board members in their individual

capacities despite their qualified immunity should be

reversed. We also agree that the named plaintiff school-

teachers and of other schoolteachers who are permitted

to intervene as plaintiffs should be reinstated. Thus, we

concur in Parts I-IV and VI of the majority opinion.*

We cannot agree, however, that school board members

sued in their official capacities are entitled to the same

qualified immunity that they enjoy in their individual

capacities, either as advanced in Part V of the majority

opinion or in the concurring opinion. We would order

a backpay award against them in that capacity. We also

think that the attorney’s fee award of $500 granted to

plaintiffs’ counsel by the majority is inadequate. Upon

appropriate proof, we would grant a larger amount or

we would remand this aspect of the case to the district

court to fix a proper amount. Thus, from Parts V and

VII of the majority opinion, we respectfully dissent, and

we are, of course, in disagreement with the concurring

opinion.

*Since Parts I-IV and VI of the opinion of Judge Widener are

concurred in by all of the judges hearing the case and Part VII by

a majority of the judges hearing the case, we refer to it as the

“majority” opinion and those joining in it as the “majority,”

even though, with respect to Part V, they are only two in number.

The special concurrence of Judge Phillips, in which Chief Judge

Haynsworth joins, will be referred to as the “concurring” opinion.

65a

I.

Although the plaintiff schoolteachers were dismissed

from their positions in violation of their rights under

the fourteenth amendment,! the majority holds in

Part V of its opinion that the defendant school board

members cannot be held liable for backpay in their

official capacities. This holding proceeds from the

majority’s conclusion that a school board member or

other local official, even when sued in an official rather

than an individual capacity, is immune from liability

for any monetary award if he acted in good faith? in

violating the Constitution. The majority states that our

past decisions have already reached this conclusion,

relying upon Eslinger v. Thomas, 476 F.2d 225 (4th

Cir. 1973). We do not think that Eslinger supports that

proposition. To the contrary, in our view adherence to

our past decisions would require us to reject any qualified

immunity defense raised by the defendants in their

official capacities. Moreover, examination and considera-

tion of the principles and policies underlying the defense

of qualified immunity lead us to conclude that the

doctrine does not apply when the defendants are sued

in their official capacities.

1See Cleveland Board of Education v. LaFleur, 414 U.S. 632

(1974).

2The term “good faith” is used in this context to refer not

simply to the absence of malice, but rather to the subjective and

objective tests for good faith as employed by the Supreme Court in

its qualified immunity decisions. See, e.g., Procunier v. Navarette,

434 U.S. 555 (1978); Wood v. Strickland, 420 U.S. 308 (1975).

66a

A. The Eslinger Case.

Eslinger was a suit by a female college student who

had been denied temporary employment as a page of

the South Carolina Senate on the basis of its policy to

employ only males as pages. Although we held the policy

to be unconstitutional and enjoined the clerk of the

Senate from enforcing the policy in the future, we denied

Eslinger’s claim against the clerk for monetary relief in

the amount she would have earned in the temporary

position. Recognizing that the clerk had acted at a time

when sex discrimination was not generally viewed as

violative of the equal protection clause,? we held that

the clerk was immunized by his good faith from an award

of damages. Jd. at 228-30.

The majority regards the issue decided in Eslinger as

identical to the immunity issue before us in the instant

case. We believe, however, that the majority reads

Eslinger too broadly and that the instant case presents

issues that were neither addressed nor decided in Eslinger.

First, although the majority correctly states that Eslinger

was a suit against the clerk of the Senate in his official

capacity, it is significant that the majority, in supporting

its statement about the capacity in which the clerk was

sued, finds it necessary to cite the opinion of the district

court in Eslnger.4 Because we thought the fact of

so little significance to the issues on appeal, we only

obliquely mentioned and gave no express consideration

to the fact that the clerk had been sued in his official

3Plaintiff Eslinger had applied for a position as page a full year

before the Supreme Court announced its decision in Reed v. Reed,

404 U.S. 71 (1971).

4Eslinger v. Thomas, 340 F.S. 886, 890, 895 (D. S.C. 1972).

67a

capacity alone.5 At a time when the law on the immu-

nity of executive officers under 42 U.S.C. § 1983 was

in a state of flux, we devoted our attention to the

nature of the “good faith’ that was required for immu-

nity, rather than to the differences between defendants

sued in their individual capacity and those sued in their

official capacity.

More importantly, Eslinger differs from the instant

case in that it did not involve a claim for the equitable

remedy of reinstatement with backpay. Plaintiff had

never been employed as a page; she was not employed

and then wrongfully discharged. Although the plaintiff

in that case characterized the monetary relief she sought

as “back pay,’ we viewed her claim, in the absence of

any demand for reinstatement, as a claim for the legal

remedy of damages. We expressly noted the relation

between the nature of the claim for relief and the issue

of the clerk’s immunity in a footnote, id. at 230 n.4,

saying that the defense of immunity should not apply

when backpay is sought. We also noted that in the cases

relied upon by plaintiff to support her contention,

backpay had been sought “not simply [as] a claim for

damages, but rather [as] an integral part of the equitable

5The only acknowledgment in our opinion that the clerk was

being sued in his official capacity appears in a footnote stating that

the question of the applicability of the eleventh amendment to

suit against a state officer in his official capacity need not be

decided. 476 F.2d at 229 n.3.

6Eslinger was decided before the Supreme Court clarified the

elements and applicability of the qualified immunity defense in

Scheuer v. Rhodes, 406 U.S. 232 (1974), and Wood v. Strickland,

420 U.S. 308 (1975). The nature of the defense was a much

disputed issue before these Supreme Court decisions, and a number

of lower courts had reached widely varying conclusions on the

issue. See, e.g., cases cited in Wood v. Strickland, 420 U.S. at

315 n.7.

68a

remedy of reinstatement.’ Jd. Since Eslinger had

not sought reinstatement, we regarded her prayer for

monetary relief as a “‘damage claim,” id., and on that

basis we held that the good faith defense would apply.’

7Our view in the Eslinger footnote that the legal or equitable

nature of a claim for relief is relevant to the availability of a

qualified immunity defense finds support in the subsequent case

of Wood v. Strickland, 420 U.S. 308, 314 n.6 (1975), where the

Supreme Court stated: “[I]mmunity from damages does not

ordinarily bar equitable relief as well.’ The majority, however,

now seeks to avoid the force of the Eslinger footnote by arguing

that the Supreme Court, in Monell v. Department of Social

Services, 436 U.S. 658 (1978), ‘thas ended any distinction, some-

times made, between backpay and money damages.’ Maj. op. at

$2. If the majority’s expansive reading of Monell in this respect is

correct, then Eslinger can no longer be regarded as good authority

and the majority’s reliance on it is misplaced. As our discussion

of Eslinger and of subsequent cases in this circuit shows, the

Eslinger opinion relied heavily on the distinction between legal

damages and equitable backpay. If, as the majority states, this

distinction, so crucial to Eslinger, is no longer valid and must

be rejected, then the reasoning and holding of Eslinger must be

rejected as well.

In any event, we believe that the majority, in concluding

that the Supreme Court has ended the distinction between legal

damages and equitable backpay, seriously misreads Monell. The

full sentence in Monell on which the majority relies reads as

follows: “Local governing bodies, therefore, can be sued directly

under § 1983 for monetary, declaractory, or injunctive relief

where, as here, the action that is alleged to be unconstitutional

implements or executes a policy statement, ordinance, regulation,

or decision officially adopted and promulgated by that body’s

officers.” 436 U.S. at 690. Even if the majority’s reading of the

words “monetary . . . relief” to refer specifically to the backpay

requested by the Monell plaintiffs is accepted, there is nothing in

those words to indicate that the Court regarded backpay as iden-

tical to legal damages. The Court used the term “monetary” relief,

not “legal” relief, and it contrasted this term with “‘injunctive”’

relief, not “equitable” relief. We cannot accept the proposi-

tion that the Supreme Court’s passing reference to ‘monetary,

declaratory, or injunctive relief’ was a cryptic rejection of the

[footnote continued]

69a

The case now before us presents the question whether

a school board member, sued in his official capacity

for equitable relief in the form of reinstatement and

backpay, enjoys a qualified immunity for his unconsti-

tutional dismissal of a teacher. Eslinger, which did

not address the significance of an official capacity suit

and which upheld an immunity defense on the ground

that legal rather than equitable relief was sought, can

hardly provide a complete answer to that question. That

Eslinger should be so limited—and was intended by us

to be so limited—is also shown by three cases that

followed.

B. Post-Eslinger Cases.

Burt v. Board of Trustees, 521 F.2d 1201 (4th Cir.

1975), unlike Eslinger, required us to address in detail

the differences between suits against defendants in an

individual capacity and those against defendants in an

official capacity. In a suit against members of a school

board, the district court determined that the board had

dismissed the plaintiff teacher in violation of her due

process rights, and it awarded her backpay.® On appeal,

long-established distinction between legal damages and equitable

backpay incident to reinstatement. See, e.g., Albemarle Paper

Co. v. Moody, 422 U.S. 405, 441-47 (1975) (Rehnquist, J.,

concurring); NLRB v. Jones & Laughlin Steel Corp., 301 U.S.

1, 48 (1937). Indeed, since Monell, the Supreme Court has

stated that § 706(g) of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-5(g), which permits a backpay award for employment

discrimination, ‘‘authorizes only equitable remedies.’”’ Great

American Federal Savings & Loan Association v. Novotny, 47

U.S.LW. 4681, 4683 (June 11, 1979).

8Although the plaintiff teacher had originally sought backpay

in connection with reinstatement, she abandoned the demand for

reinstatement when she reached the normal retirement age. 521

F.2d at 1203.

70a

we vacated the district court’s decision and remanded

the case for further proceedings. Our concern was

that the district court had not made clear whether the

judgmemt was entered against the defendants in their

individual or their official capacities. Judge Craven’s

opinion for the court!® explained that the nature of

relief to which the plaintiff teacher would be entitled

depended on the distinction between individual capacity

and official capacity suits:

[T]he named defendants possessed the power to

reinstate and cause disbursement of back pay from

public funds only in their official capacities... .

Private citizens are not empowered to reinstate or

order back pay out of school board or county funds.

* * *

. . . If the defendants are liable in their individual

capacities, the measure of damages would not be

the equitable one of back pay but instead the value

of the contract defendants wrongfully broke... .

[Whatever the amount, the award would clearly be

money damages and not equitable in nature.

Id. at 1204.

Having explained this distinction, Judge Craven

proceeded to define the tasks of the district court on

remand. If the district court determined that the defend-

ant school board members were sued in their official

9Burt reaffirmed the principle then prevailing in this circuit that

a local official could be sued, even in his official capacity, as a

“person” under § 1983. 521 F.2d at 1205 (citing Harper v.

Kloster, 486 F.2d 1134, 1138 (4th Cir. 1973).

10Fach member of the panel filed a separate opinion. An intro-

ductory per curiam statement, however, made clear that Judge

Craven’s opinion represented the views of a majority of the panel

on every issue except the calculation of damages. 521 F.2d at

1203.

7la

capacities, then its judgment against them for backpay,

so clarified, could be reinstated. If, on the other hand,

the district court determined that the suit was against

the defendants in their individual capacities, then further

proceedings would be necessary. The relief would be

legal damages, rather than equitable backpay, and a jury

trial would therefore be necessary. If a jury trial is held,

Judge Craven noted, ‘‘[t]he defendants will be entitled

to assert the defense[e] . .. that they possessed the

qualified immunity from liability for damages as set out

in Wood v. Strickland, 420 U.S. 308 (1975).” 521 F.2d

at 1206. The holding of the court in Burt is thus clear:

Only if a teacher sues school board members for legal

relief in their individual capacities will the defense of

qualified immunity be available."

This holding was reaffirmed in Thomas v. Ward, 529

F.2d 916 (4th Cir. 1975). In that case, a schoolteacher

claimed that he had been dismissed in violation of his due

process rights, and he sued various education officials in

both their official and individual capacities. Although

the district court upheld the teacher’s claim on the

merits, it denied an award of backpay. The district

court determined that the defendants, in their official

capacities, could not be sued as “‘persons”’ under § 1983,

and that in their individual capacities they enjoyed a

qualified immunity for actions taken in good faith. The

plaintiff appealed only from the ruling regarding the

official capacity suit. Citing Burt, we held that the

officials could be sued in their official capacities under

11On remand, the district court made clear that the defendants

were sued in their official capacities, and it awarded extensive

equitable relief. On appeal from this decision, we found it neces-

sary to remand for further consideration in light of intervening

changes in law, not relevant to the present issue of immunity.

Burt v. Abel, 585 F.2d 613 (4th Cir. 1978).

72a

§ 1983.12, We therefore reversed the district court’s

decision in part and directed the entry of a backpay

award. This award was ordered despite the finding of

the district court, uncontested by plaintiff on appeal,

that the defendants had acted in good faith and were

therefore entitled to immunity in their individual capaci-

ties. Thus, as in Burt, we recognized that the defense of

qualified immunity does not apply when backpay is

sought from officials in their official capacities.

In Bursey v. Weatherford, 528 F.2d 483 (4th Cir.

1975), rev’d on other grounds, 429 U.S. 545 (1977), we

went further and held that officials sued in their official

capacities cannot defend on the basis of qualified immu-

nity, even when legal damages, rather than equitable

relief, are sought. Bursey had been convicted in South

Carolina for malicious destruction of property after

an undercover agent of the South Carolina State Law

Enforcement Division had participated in the offense

and had posed as Bursey’s co-defendant and engaged in

discussions with him outside the presence of counsel.

The agent later testified against Bursey at the criminal

trial. In a subsequent § 1983 action for damages, brought

by Bursey against the agent and other state law en-

forcement officers in both their individual and official

capacities, we held that Bursey’s rights to effective assist-

ance of counsel and to a fair trial had been violated.!3

Noting that the official in their individual capacities

could assert a qualified immunity, we remanded the

case to the district court for factfinding on the issue of

defendants’ good faith. In a footnote, however, we

12See n.9 supra.

13The Supreme Court reversed our holding that Bursey’s rights

had been violated, but it expressed no views on the immunity issue.

73a

added: “We note that if the suit against [defendants]

in their representative capacities is not barred by the

eleventh amendment, the defense that they acted in

good faith is inapplicable.” 528 F.2d at 488 n.8 (citing

Thomas v. Ward, 529 F.2d 916 (4th Cir. 1975)).

In the case now before us, plaintiffs seek reinstatement

with backpay from the defendant school board members

in their official capacities. Whether the backpay sought

is characterized as legal damages or equitable relief, our

decisions in recent years consistently hold that defend-

ants, in their official capacities, cannot invoke the

defense of qualified immunity. Those decisions should

supply the answer here. Certainly, they show that the

majority’s reliance on Eslinger, for a contrary result, is

misplaced.

C. Principles and Policies of Qualified

Immunity.

The majority seeks to support its recognition of

defendants’ good faith defense by examining the prin-

ciples and policies underlying the defense of qualified

immunity, and applying them to the instant case. We

agree that this should be done. None of the opinions in

Burt, Thomas, and Bursey contains any detailed analysis

of the principles of qualified immunity or of the reasons

for allowing or denying the defense in a given situation.

In view of the change in the law of official capacity suits

under § 1983 wrought by the Supreme Court decision

in monell v. Department of Social Services, 436 U.S.

658 (1978), it is proper to consider anew the applica-

bility of the qualified immunity defense in official

capacity suits.

We start with the two seminal cases, in which the

Supreme Court has explained the elemtns of the defense

74a

of qualified immunity and the reasons for allowing an

executive officer sued in his individual capacity under

§ 1983 to avail himself of the defense. In Scheuer v.

Rhodes, 416 U.S. 232 (1974), the Court held that the

governor of a state, the officers of the State National

Guard, and the president of a state university could assert

a qualified, but not absolute, immunity only for actions

taken in good faith. The Court explained that this quali-

fied immunity was based on two “‘mutually dependent

rationales”’:

(1) the injustice, particularly in the absence of bad

faith, of subjecting to liability an officer who is

required, by the legal obligations of his position, to

exercise discretion; (2) the danger that the threat

of such liability would deter his willingness to

execute his office with the decisiveness and the

judgment required by the public good.

Id. at 240. The Court thus saw as the two justifications

for qualified immunity the unfairness of imposing

personal liability on an officer for the innocent exercise

of the duties conferred upon him by law and the chilling

deterrent effect upon the exercise of such duties that

the threat of liability would create.

A year later, in Wood v. Strickland, 420 U.S. 308

(1975), the Supreme Court found the dual rationales of

Scheuer, particularly the deterrence rationale, to justify

extension of the qualified immunity defense to school

board member sued for damages in their individual

capacities. At the same time, the Court clarified the

nature of the defense, explaining that it contained both

a “‘subjective” and an “objective”? element of good faith:

[A] school board member is not immune from

liability for damages under § 1983 if he knew or

reasonably should have known that the action he

75a

took within his sphere of official responsibility

would violate the constitutional rights of the

student affected, or if he took the action with the

malicious intention to cause a deprivation of consti-

tutional rights or other injury to the student. ...

A compensatory award will be appropriate only if

the school board member has acted with such an

impermissible motivation or with such disregard of

the student’s clearly established constitutional

rights that his action cannot reasonably be charac-

terized as being in good faith.

Id. at 322.

These decisions, at the time that they were announced,

clearly had no application to suits against municipalities

or similar units of local governemtn, because at that time

the prevailing law held that a municipality was not a

“person” subject to suit under § 1983. Monroe v. Pape,

365 U.S. 167, 187-92 (1961). This aspect of Monroe,

however, was overruled in Monell v. Department of

Social Services, 436 U.S. 658 (1978),!4 which held that

a municipality or other local government unit is subject

to suit as a person under § 1983, but that a municipality

would not be liable for every unconstitutional action of

any of its officers under a theory of respondeat superior.

Id. at 694. Monell also held that the same principles

14The facts in Monell were strikingly similar to those in the

instant case. The plaintiffs were female employees of the Depart-

ment of Social Services and the Board of Education of New York

City. Their complaint alleged that the Department and the Board

had, as a matter of official policy, required pregnant employees to

take leaves of absence before such leaves were medically necessary.

Their suit, seeking injunctive relief and backpay, was brought

against the Department and its commissioner, the Board and its

chancellor, and the City of New York and its mayor. Each of the

individual defendants was sued in his official capacity only. 436

US. at 660-61.

76a

which govern suits against municipalities under § 1983

must also govern suits brought against municipal officers

in their official capacities. Jd. at 690 n.55. Monell

expressly did not decide, however, whether school

boards and their members sued in their official capacities

are entitled to the same qualified immunity as are the

members sued in their individual capacities.'5 Jd. at 701.

That question was “‘left to the lower federal courts,”

td. at 714 (Powell, J., concurring). We think that the

same rationales of fairness and deterrence that the

Supreme Court has applied in Scheuer, Wood, and their

progeny supply the answer.

The deterrence rationale is concerned with the chilling

effect on the administration of government that would

result from the imposition of liability for constitutional

violations perpetrated by public officials. In the context

of imposing personal liability for damages on school

board members, the Supreme Court in Wood noted that

such members have broad decisionmaking power that

requires the sound exercise of discretion, and that the

imposition of personal liability for deprivations of

constitutional rights would inhibit the exercise of such

discretion to an unwarranted degree and might actually

discourage prospective school board members from

seeking office:

The imposition of monetary costs for mistakes

which were not unreasonable in the light of all the

circumstances would undoubtedly deter even the

most conscientious school decisionmaker from

exercising his judgment independently, forcefully,

and in a manner best serving the long-term interest

of the school and the students. The most capable

15 Monell did hold that municipal bodies sued under § 1983 do

not enjoy an absolute immunity. 436 U.S. at 701.

77a

candidates for school board positions might be

deterred from seeking office if heavy burdens upon

their private resources from monetary liability

were a likely prospect during their tenure.

Wood v. Strickland, 420 U.S. at 319-20 (emphasis

added).

The Supreme Court recognized, however, that this

chilling effect must be balanced against the salutary

effect of imposing personal liability for constitutional

violations. If liability is imposed for at least some

constitutional deprivations, there is an obvious economic

incentive for the school board member or other public

official to conform his actions within constitutional

requirements. In striking this balance, the Court con-

cluded that school board members should not be immune

from liability for all unconstitutionl acts, no matter how

unreasonable: ‘‘[A]bsolute immunity would not be

justified since it would not sufficiently increase the

ability of school officials to exercise their discretion in

a forthright manner to warrant the absence of a remedy

for students subjected to intentional or otherwise inex-

cusable deprivations.” Jd. at 320. The Court thus

concluded, by balancing the favorable and adverse

deterrent effect of compensating victims of constitutional

violations from the personal resources of school officials,

that immunity was justified only for actions taken in

good faith.

When we turn to the question of compensating consti-

tutional deprivations trom public funds in the hands of

local government, however, we think that this balance

shifts significantly and that no immunity is warranted. !6

16See generally The Supreme Court 1977 Term, 92 Harv. L. Rev.

57, 322-23 (1978); Note, Damage Remedies Against Municipali-

ties for Constitutional Violations, 89 Harv. L. Rev. 922, 956-58

(1976).

78a

While we recognize that a conscientious public official

will act so as to avoid an unnecessary drain on public

funds, it is a fact of human nature that the official will

he less concerned with the expenditure of public funds

than with the expenditure of his own personal resources.

Moreover, it can hardly be argued that the imposition

of governmental liability will deter prospective public

officials in any degree from seeking office in the first

place. Thus, the chilling effect, recognized in Wood,

of imposing personal liability under § 1983 is much

more attenuated when the liability is to be satisfied from

governmental funds.?7

The Supreme Court itself has recognized the important

differences in deterrent effect between personal and

governmental liability in Hutto v. Finney, 437 U.S. 678

(1978), decided after Monell. In a suit brought against

Arkansas state prison officials in their official capacities

to remedy unconstitutional prison conditions, the district

court ordered broad injunctive relief, and the court of

appeals, in affirming, ordered the state to pay plaintiffs’

17On the other side of the balance, the positive deterrent effect

of imposing liability in encouraging governmental officials to

conform their actions to the requirements of the Constitution,

is of greater importance in an official capacity suit than in an

individual capacity suit. When an official is sued in his individual

capacity, the constitutional injury usually arises from an ad hoc

decision of that official and its adverse effect is usually limited to

the individual plaintiff or plaintiffs. By contrast, Monell requires

that in a suit against a local government or against a government

official in his official capacity, no liability may be imposed unless

the injury is caused by execution of a policy or custom estab-

lished by the government. Thus, the act complained of is not the

decision of a single government administrator, but rather the

application of a broad-based policy, more likely to affect a larger

class of persons. Where the establishment of such general policies

is concerned, the public interest in ensuring that constitutional

requirements are observed is accordingly greater.

79a

attorney’s fees for the appeal under 42 U.S.C. § 1988.

The Supreme Court affirmed this award of attorney’s

fees, holding that assessing the award against the state

would not contravene the eleventh amendment. 437

U.S. at 693-700. In response to a suggestion that the

fees should be borne by the individual prison officials

named as defendants, rather than by the state, the Court

stated in a footnote that since the state, rather than the

individual defendants, had made the decision to appeal

the district court’s order, it was appropriate that the state

should bear the costs of that appeal. The Court went

on to note that imposing the attorney’s fee award on the

individual officials would ‘“‘def[y] this Court’s insistence

in a related context that imposing personal liability in

the absence of bad faith may cause state officers to

‘exercise their discretion with undue timidity.’” Td.

at 669 n.32 (citing Wood v. Strickland, 420 U.S. at

321). Thus, the Supreme Court, while recognizing

that imposing personal liability on public officials for

attorney’s fees would have an undue chilling effect on

the exercise of their authority, nevertheless ordered that

the attorney’s fees should be paid from the state’s public

funds. This recognition by the Supreme Court of the

disparate deterrent effects of personal liability and

governmental liability supports our conclusion that in

a suit for recovery of damages from the government’s

funds, no immunity defense is warranted.!8

18Citing this passage from Hutto, an amicus brief argues that the

Supreme Court has already decided that local governments enjoy

no qualified immunity and that this decision is binding upon us.

We cannot agree with this extreme position. We do not believe

that the Supreme Court would use a brief remark in a footnote

as a cryptic way of deciding, as a matter of binding precedent, a

controversial constitutional issue upon which it has previously

[footnote continued]

80a

The other rationale for the immunity defense, as

set forth by the Supreme Court in Scheuer, is that of

fairness. The Court stated that a qualified immunity

for an official sued in his individual capacity would be

warranted because of “the injustice, particularly in the

absence of bad faith, of subjecting to liability an officer

who is required, by the legal obligations of his position,

to exercise discretion.’ 416 U.S. at 240. The “mutually

dependent”’ rationale of fairness has been little discussed

by the Supreme Court in its subsequent decisions on

qualified immunity in individual capacity suits, which

have been grounded largely on the deterrence rationale.

See Wood v. Strickland, 420 U.S. at 318-21; Procunier

v. Navarette, 434 U.S. 555, 561-62 (1978); cf. Butz v.

Economou, 438 U.S. 478 (1978) (immunity of federal

official sued in individual capacity). When the question

of the applicability of a qualified immunity defense in

official capacity suits is addressed, however, we believe

that the fairness rationale plays a more significat —indeed,

a decisive —role.

In individual capacity suits, it is hardly surprising that

the fairness rationale has not been more fully developed.

When the victim of a constitutional violation seeks to

hold personally liable a public official who has acted in

good faith, the case involves distributing the loss between

two innocent parties. In such a case, fairness considera-

tions are not decisive, and other considerations, such as

the importance of protecting the exercise of discretion

by public officials as recognized in Wood, assume primary

reserved decision. We do believe, however, that the Hutto foot-

note indicates Supreme Court agreement with our view that the

deterrence rationale, which led the Court to grant a qualified

immunity for officials sued in their individual capacity, has much

less force, if any, when applied in the context of official capacity

suits.

8la

importance. When the victim seeks compensation from

public funds in an official capacity suit, however, con-

siderations of fairness are quite different. Imposition of

liability in such a case would not shift the loss suffered

by the victim to another innocent individual but rather

would spread the loss among the public. Liability may

not be imposed upon the government, of course, unless,

as held in Monell, the constitutional violation occurred

by application of a policy or custom established by that

government. When an innocent person suffers a loss by

virtue of the execution of an unconstitutional policy or

custom affirmatively established by representatives of

the public, the choice between leaving the entire burden

of the loss on the victim or distributing it among the

public as a whole is self-evident.!9 We believe that

fairness in such a case permits—indeed, requires—that

the loss be shared, and that this fairness rationale applies

191m the context of common law tort suits against a municipality,

commentators have relied upon this loss-spreading analysis in

urging the abrogation of municipal immunities. See, e.g., K. Davis,

Administrative Law Treatise § 25.17 (Supp. 1970); W. Prosser,

Handbook of the Law of Torts § 131, at 978 (4th ed. 1971). One

commentator, who has employed the loss-spreading analysis in

endorsing the denial of qualified immunity to local governments

for constitutional violations, suggests that the analysis may be

inapplicable in “cases involving generalized injuries to broad

segments of the population,” such as actions for damages by an

entire black community for injuries caused by a segregated school

system. See Note, supra note 16, at 958. The instant case, of

course, does not present this difficult problem, and we express

no opinion on the matter. We note, however, that a denial of

damages in such a case might be based not on the good faith of

the government, but rather on the inappropriateness of a damage

remedy under § 1983 for such generalized constitutional injuries.

82a

whether or not the unconstitutionality of the policy or

custom was settled at the time it was established.?°

In sum, the rationales of fairness and deterrence,

asserted by the Supreme Court as the fundamental

justifications for the qualified immunity defense, do

not support the extension of that defense to suits against

local governments or against government officials in their

official capacities.24_ This conclusion is warranted, we

believe, whether the relief sought from the government

is characterized as legal or equitable. Holding in the

instant case that no immunity defense is available to

20Quoting from Ohland v. City of Montpelier, 467 F.S. 324,

345 (D. Vt. 1979), the majority argues that it is inappropriate to

view the public as ‘‘insurers’’ for injuries inflicted in good faith by

the government on individuals. We would agree with this argument

insofar as it applies to the constitutional violations committed

unknowingly by a single administrator carrying out his duties. The

government as a whole cannot fairly be deemed responsible for

such violations. But as the Supreme Court held in Monell, the

local government itself can be held liable for a constitutional

deprivation only if it resulted from the execution of a policy or

custom established by the government. Thus, governmental

liability is imposed not when the violation is committed by a

single administrator, who may err despite the most careful public

scrutiny and supervision, but only when the injury is the con-

sequence of an established policy, set by those officials most

responsible to the public and most sensitive to public opinion.

To compensate victims of such an unconstitutional policy from

governmental funds does not impose upon the public the unwitting

role of the helpless insurer, but rather places the responsibility for

such constitutional injuries where it belongs.

21As the majority notes, a few other federal courts have, since

Monell, concluded that local governments should enjoy the same

qualified immunity as their officials enjoy in their individual

Capacities, but we respectfully disagree with those decisions. We

note that one other federal court agrees with us that municipalities

sued under the Monell doctrine cannot invoke the qualified immu-

nity defense. Shuman v. City of Philadelphia, No. 75-1510 (E.D.

Pa. April 18, 1979).

83a

the defendant school board members in their official

capacities, we would therefore affirm the judgment

of the district court insofar as it ordered the named

defendants, in their official capacities, to give the named

plaintiffs full relief in the form of both reinstatement ??

and backpay.

Il.

While agreeing with us that there are significant dis-

tinctions between governmental liability and personal

liability which caution against extension of the holding

in Wood v. Strickland to local governments sued under

§ 1983, the concurring opinion would not deny local

governments a qualified immunity defense. Rather, it

would hold them immune from liability if they acted

with “reasonable care under the circumstances, objec-

tively assessed.” This test, it is claimed, is different from

the test in Wood because, under Wood, an individual

officer would be immune if he acted in “subjective good

faith,’ while, under the concurring opinion, the local

4

22Since the majority orders in Part VI of its opinion that the

named plaintiffs be reinstated, we concur in that result. We are

puzzled, however, by the citations in Part VI to Ex Parte Young,

209 U.S. 123 (1908), and Edelman v. Jordan, 415 US. 651

(1974), which we believe unnecessarily complicate the issue.

Young and Edelman deal principally with the absolute immunity

accorded states by the eleventh amendment, which has no appli-

cation to units of local government, see, e.g., Mt. Healthy City

School District Board of Education v. Doyle, 429 U.S. 274,

279-81 (1977). Surely there can be no doubt that § 1983 author-

izes reinstatement as an equitable remedy for an unconstitutional

dismissal. Even under the majority’s view that the school board

members in their official capacities are immune from a back-

pay award, reinstatement would nevertheless be authorized.

“(I}mmunity from damages does not ordinarily bar equitable

relief as well.” Wood v. Strickland, 420 U.S. at 314 n.6.

84a

government would enjoy immunity only if its conduct

was reasonable on an objective basis.

We think this an incorrect reading of Wood with

respect to the scope of the qualified immunity accorded

to officials sued in their individual capacities. Wood

makes it quite clear that subjective good faith alone is

not sufficient to immunize an individual school board

member from a damage award:

The official himself must be acting sincerely and

with a belief that he is doing right, but an act

violating a student’s constitutional rights can be no

more justified by ignorance or disregard of settled,

indisputable law on the part of one entrusted with

supervision of students’ daily lives than by the

presence of actual malice. ... Any lesser standard

would deny much of the promise of § 1983... .

[W]e hold that a school board member is not

immune from liability for damages under § 1983

if he knew or reasonably should have known that

the action he took within this sphere of official

responsibility would violate the constitutional rights

of the student affected, or if he took the action

with malicious intention to cause a deprivation of

constitutional rights or other injury to the student.

420 US. at 321-22 (emphasis added).?5

231t was the Court’s articulation of this objective standard that

caused Justice Powell, joined by three other Justices, to dissent:

It would impose personal liability on a school official who

acted sincerely and in the utmost good faith, but who was

found—after the fact—to have acted in “ignorance .. . of

settled, indisputable law.” ... This harsh standard, requiring

knowledge of what is characterized as “‘settled, indisputable

law,” leaves little substance to the doctrine of qualified

immunity.

420 U.S. at 327-28 (Powell, J., dissenting).

85a

Thus, the subjective and objective elements of the

qualified immunity recognized in Wood are not expressed

in the disjunctive and mere subjective good faith is not

sufficient to immunize an individual officer. It follows,

we think, that the proposed intermediate qualified

immunity for local governments is not significantly dif-

ferent from that already enjoyed by individual officials.

Recognition that the rationales of qualified immunity

for individuals do not apply to suits against local govern-

ments requires, in our view, that the qualified immunity

defense asserted here be unavailable to local governments

in any form.

ill.

Finally, while we agree with the majority’s conclusion

in Part VII of its opinion that plaintiffs are entitled to

attorney’s fees for this appeal under 42 U.S.C. § 1988,

we believe that the majority’s award of $500 is grossly

inadequate. It is true that plaintiffs have not been

granted all of the relief that they sought. They have not

been successful in obtaining relief on behalf of a plaintiff

class against a class of defendant school boards. Further-

more, the majority has held them not entitled to an

award of backpay. Nevertheless, the plaintiffs have

succeeded on this appeal in gaining reinstatement. The

24The concurring opinion asserts that we favor a “no-fault,

strict liability standard” for suits against local governments under

§ 1983. The statement is accurate only insofar as it states that we

would hold a local government liable for a constitutional violation,

regardless of whether it knew of the existence of the constitutional

right in question. The actor’s state of mind, however, may be

relevant to the question whether a constitutional violation was

committed at all, and thus whether a cause of action under § 1983

is stated. See Baker v. McCollan, 47 U.S.L.W. 4834, 4835 (June

26, 1979).

86a

extent to which plaintiffs obtained all of the relief they

sought is only one of many factors to be considered in

setting an attorney’s fee. See Wheeler v. Durham City

Board of Education, 585 F.2d 618, 624 (4th Cir. 1978);

Burt v. Abel, 585 F.2d 613, 617-18 (4th Cir. 1978);

Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir.),

cert. dented, _.. US. — (1978).

The majority’s award of $500, we believe, accords

inadequate recognition to the inescapable minimum

amount of time and effort that plaintiffs’ attorneys must

have expended in these cases. The appeal dates back to

1975, when briefs were filed and oral argument was held

before a panel of this court. In 1976, before a decision

was issued, the court ordered on its own motion that

the cases be set for rehearing en banc and asked the

parties to address themselves in particular to the issue

whether backpay could be recovered from a municipality

under § 1983. This order obviously required additional

preparation on the part of plaintiffs’ attorneys. Before

25The determination of a reasonable attorney’s fee required

consideration of a number of factors, including:

(1) the time and labor expended; (2) the novelty and

difficulty of the questions raised; (3) the skill required

to properly perform the legal services rendered; (4) the

attorney’s opportunity costs in pressing the instant litigation;

(5) the customary fee for like work; (6) the attorney’s

expectations at the outset of the litigation; (7) the time

limitations imposed by the client or circumstances; (8) the

amount in controversy and the results obtained; (9) the

experience, reputation, and ability of the attorney; (10) the

undesirability of the case within the legal community in

which the suit arose; (11) the nature and length of the

professional relationship between attorney and client; and

(12) attorneys’ fees awards in similar cases.

Barber v. Kimbrell’s, Inc., 577 F.2d at 226 n.28 (citing Johnson

v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)).

87a

reargument was had, however, we ordered that proceed-

ings be stayed pending the Supreme Court’s decision in

Monell. Once Monell was decided, additional motions

and supplemental briefs were filed by plaintiffs. Without

detailing every step, this recitation of required services

of which we are aware reveals the inadequacy of the

majority’s award.

Although plaintiff’s attorneys have requested a fee

award, they have filed no affidavits with this court

detailing the amount of time and type of effort expended

in representing plaintiffs in this appeal. Rather than

summarily ordering the minimal amount of $500, we

would either require the filing of such documentation

in order to give us a factual basis on which to determine

a proper fee, or remand the question to the district court

to take proof and to award an appropriate fee.

88a

RUSSELL, Circuit Judge, concurring and dissenting:

As to Mrs. Gough, I concur in all of Judge Widener’s

opinion except Part VI thereof, and as to that part of

his opinion I agree with the principles stated therein,

but on the facts of her case I would not require that

reinstatement be offered Mrs. Gough because she did not

ask for it after her baby was born.

As to Mrs. Paxman, I think she suffered no constitu-

tional wrong for the reasons stated by Judge Haynsworth

in Part IV of his opinion. Therefore, I think none of the

various opinions filed has any application to her except

Part IV of Judge Haynsworth’s opinion as mentioned.

89a

PHILLIPS, Circuit Judge, concurring and dissenting:

For reasons given in Chief Judge Haynsworth’s dissent-

ing and concurring opinion, I agree that neither of the

named plaintiffs has established a constitutional right to

be reinstated, and that the named plaintiff Paxman has

not established any violation of constitutional right. To

that extent, I dissent from the opinion of the court.

For reasons specifically given in this opinion I concur

in the holding of the court that the defendant school

boards and their members in official capacities are not

liable to any monetary claims by reason of a qualified

immunity.

Otherwise I join the opinion of the court.!

Considering that neither named plaintiff is entitled

to reinstatement and that the plaintiff Paxman has not

shown any violation of constitutional right in this action

now denied class action status, there remains for me only

the question whether the named plaintiff Gough has

established any right to monetary relief against her

school board and its members in their official capacities.

On this point, I of course agree with the court that

termination of her employment during the school year

violated her constitutional rights under LaFleur. For

this she is entitled to compensatory damages unless the

school board defendant and its members in their official

capacities enjoy a qualified immunity to this claim.

1Except that I would not find the class action improperly

certified under Fed. R. Civ. P. 23(b)(2) for the reason that a

defendant class against plaintiff class alignment is never appropriate

under 23(b)(2). The proper and sufficient reason

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