Aurora Ed. Ass'n E. v. Board of Ed., Etc., Kane County, Ill.

• Citation: 490 F.2d 431
• Decision Date: 20 December 1973
• Docket Number: No. 73-1085.,73-1085.
• Parties: AURORA EDUCATION ASSOCIATION EAST et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF AURORA PUBLIC SCHOOL DISTRICT NO. 131 OF KANE COUNTY, ILLINOIS, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

490 F.2d 431 (1973)

AURORA EDUCATION ASSOCIATION EAST et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF AURORA PUBLIC SCHOOL DISTRICT NO. 131 OF KANE COUNTY, ILLINOIS, et al., Defendants-Appellees.

No. 73-1085.

United States Court of Appeals, Seventh Circuit.

Argued October 17, 1973.

Decided December 20, 1973.

As Amended January 4, 1974.

Stephen J. Pollak, Washington, D. C., R. W. Deffenbaugh, Springfield, Ill., for plaintiffs-appellants.

Lambert M. Ochsenschlager, Aurora, Ill., for defendants-appellees.

Before SWYGERT, Chief Judge, CUMMINGS, Circuit Judge, and WYZANSKI^*, Senior District Judge.

WYZANSKI, Senior District Judge.

Seven public school teachers in Aurora, Kane County, Illinois and the Aurora Education Association East, of which they are members, are plaintiffs. The Board of Education of Aurora Public School District No. 131 of Kane County, the members of that Board, and the Superintendent of Aurora's school system are defendants.

June 9, 1971, during collective bargaining and wage disputes between the teachers represented by the Association and the Board, the Association at one of its meetings adopted this resolution:

"Be it resolved that the teachers of District # 131 will not return to the classroom in the fall if there is at that time no satisfactory settlement of the contract between the Board of Education and the AEAE and further that an open meeting be held on September 2 for all teachers to assess the position of the AEAE at that time."

Thereupon the Board, dropping its negotiations for a collective bargain with the Association, wrote to each teacher a letter offering him or her an individual contract for the 1971-1972 school year. Each proposed contract provided that the contracting teacher expressly agreed that

"(1) By urging, advocating, recommending, and asserting the right to strike by its members prior to the vote, and at the meeting held on June 9, 1971, the AEAE no longer qualifies as the organization that, under the established School Board Policy (1.30 Article II) is a bargaining representative of the teachers of the school system, and accordingly will not be recognized by the School Board as such agent for the teachers.

"Nothing in this paragraph is intended to prevent the Teacher from belonging to the AEAE, but relates only to AEAE\'s lack of qualification to act as the bargaining agent for the Teacher in negotiations with the School Board."

In the foregoing, the citation of School Board Policy 1.30 Article II is a reference to a provision permitting a labor organization to negotiate, on behalf of teachers, with the Board, but excluding from all bargaining rights "any organization (1) which asserts the right to strike against any . . . agency of the government, or to assist or to participate in any such strike, or which imposes a duty or obligation to conduct, assist or participate in any such strike. . . ." This emphasized exclusory language is the focal point on which this case at bar turns.

Many teachers executed the proposed contract, and thus became entitled to advantages not offered in the 1970-1971 contracts. To the seven individual plaintiffs, none of whom executed the proffered contracts, the Board offered continued employment for the new year on the old terms. Faute de mieux, the seven continued at work under the disadvantageous 1970-1971 terms, and then brought this suit in the District Court.

Relying on the United States Constitution's Fourteenth Amendment's due process clause and its alleged incorporation of the principles of the First Amendment, and also invoking Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, plaintiffs sought (1) a declaration that, as here applied, School Board Policy 1.30 was invalid, and that plaintiff teachers were entitled to be placed on the same salary schedule and like terms as those teachers who had executed the proposed 1971-1972 contract, (2) an injunction protecting for the future the rights so declared, (3) back pay based on the 1971-1972 schedule, (4) $25,000 actual damages, (5) $25,000 exemplary damages, and (6) an attorney's fees and costs.

Defendants moved to dismiss the complaint on the grounds that (1) the complaint failed to state a valid claim, (2) plaintiffs' purported claims under 42 U.S.C. § 1983 did not lie against the Board or its members, and (3) the Association was not a proper plaintiff to assert the alleged claim under 42 U.S.C. § 1983.

On the ground that it failed to state a valid claim, the District Court dismissed the complaint. Relying upon Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F.2d 456 (7th Cir. 1972), the Court's opinion held that the Board's proposed contracts for 1971-1972 and the Board's refusal to continue collective bargaining with the Association had not violated 42 U.S.C. § 1983 or plaintiffs' claimed rights under the due process clause of the Fourteenth Amendment.

Plaintiffs appeal from the District Court's dismissal of their complaint.

We address ourselves to the already quoted exclusory provision in School Board Policy 1.30.

National Ass'n of Letter Carriers v. Blount, 305 F.Supp. 546 (D.D.C.1969), appeal dismissed by stipulation, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970) and United Federation of Postal Clerks v. Blount, 325 F.Supp. 879 (D.D.C.), aff'd mem. as to issues not here involved, 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971), invalidated virtually identical provisions in a federal statute and a federal administrative provision. The cited cases pointed out that the language is ambiguous, leaving it unclear whether it encompasses the mere philosophical or political assertion of the declarant's belief that he has a right to strike. A governmental inhibition against the declaration of such a purely theoretical position is a plain case of an unconstitutional official interference with freedom of speech and is unconstitutional. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). Where a governmental body seeks by an over broad...