Appendix — Board of Education of Aurora Public School District No. 131 v. Aurora Education Ass'n East

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APPENDIX A

Part IV of Brief for Defendants-Appellees

in the United States Court of Appeals

for the Seventh Circuit, pp. 10-11

THERE ARE NUMEROUS OTHER DEFICIENCIES

IN THE COMPLAINT WHICH HAVE BEEN RAISED

IN THE MOTION WHICH JUSTIFIES DISMISSAL.

THE PLAINTIFFS MADE NO REFERENCE TO

THEM IN THEIR BRIEF.

The Board of Education, being a body municipal in

nature, is not a “person” within the meaning of the

Civil Rights Act. Monroe vs. Papa, 365 U.S. 167 (1961).

The individual defendants have been sued both indi-

vidually and in their official capacity for money dam-

ages. The actions complained of, however, occurred in

the discharge of their official duties. Such an action can-

not be maintained. This question was considered in Abel

vs. Gousha, 313 F. Supp. 1030 (DCED, Wisc. 1970)

where the Court said at page 1031:

“Although the members of the school board are

also sued in their individual capacities, the grava-

men of the complaint is that they acted improperly

as a corporate body in discharging the plaintiff. No

individual action by any member of the board is

complained about by the plaintiff. In my opinion

the complaint does not state a cause of action against

the individual members of the board, and they are

entitled to dismissal as individuals. However, as the

board of school directors, they must remain in the

action with respect to the claim for reinstatement.”

A similar issue was considered in Henson vs. City of

St. Francis, 322 F. Supp. 1034. The teachers in that

ease complained that they did not have their contracts

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renewed and received no explanation therefore. The

Court said at pages 1036-1037:

“To the extent that the plaintiffs seek damages

against the school board, the action must be dis-

missed. These defendants are not “persons” within

the meaning of that term as used in 42 U.S. §§ 1983

and 1985.

To the extent that equitable relief is sought, the in-

junction prayed for (to place the teachers on the higher

salary schedule) is mandatory in nature and is the equiva-

lent of a money judgment which has been ruled improper

in the Abel and Henson cases. Equitable relief is clearly

unnecessary.

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APPENDIX B

SHEA & GARDNER

734 Fifteenth Street, N.W.

Washington, D. C. 20005

October 4, 1973

Mr. Kenneth J. Carrick

Clerk

United States Court of Appeals

United States Court House

219 South Dearborn Street

Chicago, Illinois 60604

Re: Aurora Education Ass’n East v.

Board of Education of Aurora

Public School Dist., No. 73-1085

Dear Mr. Carrick:

In June, after the Aurora Education Association East

had filed its reply brief in this case, the Supreme Court

handed down two decisions which bear directly upon the

issues before this Court. These are: Broadrick v. Okla-

homa, 41 U.S.L.W. 5111 (June 25, 1973), which deals

with unconstitutional overbreadth of statutes affecting

First Amendment rights; and City of Kenosha v. Bruno,

41 U.S.L.W. 4819 (June 11, 1973), which holds that

municipalities are not subject to suit under 42 U.S.C.

$ 1983. We wish in this letter to bring to the Court’s

attention the following comments on these cases.

1. Broadrick v. Oklahoma: Overbreadth Under the

First Amendment.

* * * *

2. City of Kenosha: Suability Under 42 U.S.C. § 1983.

In City of Kenosha, the Supreme Court held that cities

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were not suable in an action for equitable relief brought

under 42 U.S.C. § 1988. It had already held in Monroe

v. Pape, 365 U.S. 167 (1961), that that section does not

create a cause of action for damages against cities. See

also Moor v. County of Alameda, 41 U.S.L.W. 4627 (May

14, 1973) (same result with regard to counties).

City of Kenosha raises a question whether the Aurora

school board is suable under Section 1983. While we take

the position that it is, this question need not be resolved

here. This is so because the complaint names other de-

fendants who are suable under that section—the school

superintendent and the members of the school board

(App. 1)—and the Court can therefore proceed to decide

the constitutional issues presented in the case and leave

the question of the suability of the school board for reso-

lution on remand with full briefing and development of

the facts.

City of Kenosha, Monroe and Moor do not affect the

suability of the school superintendent and the members

of the school board under Section 1983. Their holdings

were based on legislative history which indicated explic-

itly that cities and counties were exempted from suit

under Section 1983 while officials acting for those entities

were not.’ See, e.g., Monroe v. Pape, supra, 365 U.S. at

175-77, 190-91; Moor v. County of Alameda, supra, 41

U.S.L.W. at 4632 n. 24. Ex Parte Young, 209 U.S. 123,

159-60 (1908), establishes that government officials can

be sued even where the government entities for which

they acted are immune. This principle is reflected in

decisions of this Court in Section 1983 cases involving

both legal and equitable relief. Thus, in McLaughlin v.

Tilendis, 398 F.2d 287 (7th Cir. 1968), and Donahue v.

Stanton, 471 F.2d 482 (7th Cir. 1972), both decided

3In its opinion in City of Kenosha, the Supreme Court empha-

sized that “[t]he only defendants named in the complaints .. .

were . . . municipalities” (41 U.S.L.W. at 4821), and limited its

holding to municipalities.

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after Monroe, this Court held that damages could be

awarded against school board members (McLaughlin)

and hospital officials (Donahue) under Section 1983. See

Reply Brief at 10-11. And in Donahue, the Court also

held that the hospital officials could be ordered to rein-

state a former chaplain of the hospital, who had been

wrongfully discharged. To the same effect, see Harkless

v. Sweeney Independent School Dist., 427 F.2d 319, 323

(5th Cir. 1970) ; Diamond v. Pitchess, 411 F.2d 565 (9th

Cir. 1969); Board of Trustees of Arkansas A & M Col-

lege v. Davis, 396 F.2d 730, 734 (8th Cir. 1968). In

sum, there can be no doubt that Section 1983 creates a

cause of action against the individual members of the

school board and the school superintendent.

If the Court should pass on the question whether

plaintiffs also have a cause of action against the school

board under Section 1983, it should hold that they do.

City of Kenosha, Monroe and Moor dealt only with the

suability of cities and counties under Section 1983 and

were grounded in that statute’s legislative history indi-

cating that Congress did not intend to authorize a cause

of action against these parties. 41 U.S.L.W. at 4821; id.

at 4632; 365 U.S. at 187-92. That history is not directly

applicable to school boards, and the holdings in City of

Kenosha, Monroe and Moor therefore should not be ex-

tended to grant them immunity from suit under Section

1983. See Scher v. Board of Education, 424 F.2d 741,

743-44 (3d Cir. 1970) (Monroe distinguished on grounds

suit was against a school board, not a city); Kates and

Kouba, “Liability of Public Entities Under Section 1983

of the Civil Rights Act,” 45 So. Calif. L. Rev. 131, 152-55

(1972).

In any event, the Aurora School Board is properly

before the Court on other grounds. As stated in their

complaint, the association and plaintiff teachers have

causes of action against it under the First and Four-

teenth Amendments. See, e.g., Brown v. Board of Edu-

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cation, 347 U.S. 483 (1954); see also City of Kenosha

v. Bruno, supra, 41 U.S.L.W. at 4821-22. And jurisdic-

tion over those causes of action lies under 28 U.S.C.

§$ 1343(3) which grants United States District Courts

jurisdiction over civil actions authorized by law:

“{t]o redress the deprivation, under color of any

state law, statute, ordinance, regulation, custom or

usage, of any right, privilege, or immunity secured

by the Constitution of the United States... .”

Robles v. El Paso Community Action Agency, Project

Bravo, Inc., 456 F.2d 189 (5th Cir. 1972); Paul v. Dade

County, 419 F.2d 10, 11-12 (5th Cir. 1969); see Moyer

v. Peabody, 212 U.S. 78, 83 (1909) (“the question is

whether this is a suit authorized by law, that is, by [Sec-

tion 1983], or the Constitution, or both’); but see

Giancana Vv. Hoover, 322 F.2d 789 (7th Cir. 1963).* Ju-

risdiction over plaintiffs’ constitutional claims is also con-

ferred by 28 U.S.C. § 1331, which provides:

“The district courts shall have original jurisdiction

of all civil actions wherein the matter in controversy

exceeds the sum or value of $10,000, exclusive of

interest and costs; and arises under the Constitution,

laws, or treaties of the United States.”

These claims clearly arise under the Constitution. See,

e.g., Powell v. McCormack, 395 U.S. 486, 515-16 (1969) ;

Bell v. Hood, 327 U.S. 678 (1946). The other prerequi-

site of Section 1331—that “the matter in controversy

exceeds the sum or value of $10,000”—is also satisfied.

The right which the association seeks to vindicate in this

action exceeds $10,000 in value, for by refusing to recog-

nize it as the bargaining representative of the teachers in

the Aurora school system, the school board deprived the

association of its primary reason for existing. The requi-

*In City of Kenosha the Supreme Court did not consider whether,

wholly apart from Section 1983, the district court had jurisdiction

under Section 1343(3) over the constitutional claims raised in that

case. This possib:'ity was apparently not called to its attention.

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site jurisdictional amount is also met with regard to

plaintiff teachers. Each loses a substantial sum every

year he is denied his rightful position in the standard

schedule of salaries and benefits. Courts take into ac-

count the amount of future earnings and benefits which

an employee will lose as a result of a discharge or reduc-

tion in salary. See Nord v. Griffin, 86 F.2d 481, 483

(7th Cir. 1936); Friedman v. International Ass’n. of

Machinists, 220 F.2d 808, 810 (D.C. Cir. 1955); 1 Moore,

Federal Practice { 0.96[2] (2d ed. 1968). In sum, then,

the association and plaintiff teachers have justiciable

claims against the board under the First and Fourteen

Amendments, and this Court has jurisdiction of those

claims under 28 U.S.C. §§ 1843(3) and 1331.°

Thus, all the defendants in this case are properly

before the Court.

Respectfully,

/s/ Stephen J. Pollak

STEPHEN J. POLLAK

Counsel for

Encl: 24 additional copies Plaintiffs-A ppellants

Copies by airmail to:

Lambert M. Ochsenschalger, Esq.

Stephen J. Mrkvicka, Esq.

Reid, Ochsenschlager, Murphy & Hupp

75 So. Stolp Ave.

P.O. Box 1264

Aurora, Illinois 60577

5 The complaint in this case does not cite Section 1331 as one of

the statutory bases for jurisdiction, and it does not state that the

jurisdictional prerequisites of that section have been satisfied. We

hereby request that this Court permit amendment of the complaint

to add these allegations. Leave to amend complaints to state a

proper basis for jurisdiction is to be freely granted. E.g., United

Steelworkers of America, AFL-CIO v. Mesker Bros. Industries,

Inc., 457 F.2d 91, 93 (9th Cir. 1972); 3 Moore, supra, 7 15.09; see

also Eklund v. Mora, 410 F.2d 731 (5th Cir. 1969) ; 3 Moore, supra,

7] 15.11, at 969.