# Petition — Paxman v. Henrico County School Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0292%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 449 U.S. 1129 ## Text 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 rr is 6b bk crip ede Oo we a Oe eee ee ow ee 1 es wack hot ac ee Sis Owe eee eccasen sees 2 nt een conch ceseceeenaceieeeee és 2 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 reinstatem [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0292%3A1. Public record. Not legal advice.