Decision Date16 January 1975
Docket NumberCiv. A. No. 66-G-34.
Citation388 F. Supp. 738
PartiesMildred HARKLESS et al., Plaintiffs, v. The SWEENY INDEPENDENT SCHOOL DISTRICT OF SWEENY, TEXAS, et al., Defendants.
CourtU.S. District Court — Southern District of Texas





Weldon H. Berry, Houston, Tex., Sanford D. Bishop, Jr., Columbus, Ga., and Gabrielle K. McDonald, Houston, Tex., for plaintiffs.

Grant Cook, Reynolds, White, Allen & Cook, Houston, Tex., for defendants.


NOEL, District Judge.


In the spring of 1965, defendant Sweeny Independent School District (hereinafter called the District) adopted a plan of complete school desegregation and, pursuant thereto, ordered the number of its faculty reduced for the 1966-67 school year. In effecting this reduction, the District did not offer reemployment to seventeen Negro teachers.

On May 23, 1966, twelve of the seventeen filed this suit alleging racial discrimination in the decision not to rehire. Plaintiffs predicated their sole cause of action on 42 U.S.C. § 1983. Jurisdiction was asserted solely under 28 U.S.C. § 1343(3). The claim was brought as a class action on behalf of the twelve named plaintiffs and all others similarly situated, i. e., all Negro teachers not rehired by the District for the 1966-67 school year.

The original named defendants were the District, its superintendent and seven members of its Board of Trustees. Plaintiffs did not specify whether they were suing the superintendent and the members of the Board of Trustees in their official capacities only, or in their individual capacities as well.1 The complaint sought injunctive and other relief, including back pay and other allowances lost as a result of the allegedly improper refusal to rehire.

Much of the lengthy history of this case is traced in detail in previous opinions of this Court. Harkless v. Sweeny Independent School Dist., 278 F.Supp. 632 (S.D.Tex.1968) hereinafter called Harkless I (Dist.); Harkless v. Sweeny Independent School Dist., 300 F.Supp. 794 (S.D.Tex.1969) hereinafter called Harkless II (Dist.). In the interest of brevity, only the following summary is provided here.

Extended discovery and numerous pretrial conferences were necessary throughout this case. Early in the proceedings this Court held that the alleged class of plaintiffs was not so numerous as to make it impractical to bring all persons included therein before the Court individually. Accordingly, the case was stripped of its character as a class action on April 21, 1967.

In November, 1967, plaintiffs sought and were granted leave to amend their complaint. Defendants responded with an amended answer and requested a jury trial. On January 19, 1968, the Court held in Harkless I (Dist.) that the case was a proper one for a jury. Plaintiffs moved to dismiss their amended complaint insofar as it raised any jury issue and asked that the case be transferred to the non-jury docket. These requests were denied by the Court on June 6, 1968.

In March of 1969 the case proceeded to a trial by jury. During the course of the voir dire examination, plaintiffs moved for clear and obvious reasons of strategy to dismiss all claims they might have had against the individual defendants in their individual capacities. This motion was granted and plaintiffs' second amended complaint resulted. With only the District and its officers as such remaining as defendants,2 the Court requested the parties to submit briefs on the relevance of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) to the question of whether the remaining defendants were "persons" within the meaning of 42 U.S.C. § 1983. This question was carried with the case.

On March 13, 1969, the jury returned its verdict on special interrogatories. The jury's findings were uniformly favorable to the defendants3 with one exception: the jury found that "a factor relied upon by the board of trustees in not offering reemployment to seven of the plaintiffs was the fact that these particular plaintiffs were parties to this lawsuit."

Plaintiffs then sought and received leave to further amend their complaint to incorporate a ground of recovery consistent with the jury's verdict. Numerous other motions were not acted upon because the Court, relying on Monroe v. Pape, supra, determined that the plaintiffs had failed to state a claim upon which relief could be granted. See Harkless II (Dist.).

The Court of Appeals for the Fifth Circuit reversed this holding saying that claims for equitable relief were not within the rule of Monroe. Harkless v. Sweeny Independent School Dist., 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971) hereinafter called Harkless III (Cir.). The opinion of the majority limited Monroe to suits for damages and found that the plaintiffs here sought the equitable relief of reinstatement and back pay only. The majority also expressly concluded that § 1983 contemplated equitable relief against individuals sued in their official or representative capacities. Finally, the Court of Appeals held that the opinion of this Court expressed in Harkless I (Dist.) was incorrect — that "a claim for back pay presented in an equitable action for reinstatement authorized by § 1983 is not for jury consideration . . .." Harkless III (Cir.), 427 F.2d at 324.

On remand, counsel for both parties stipulated, at the request of the Court, that the case could be decided on the record created by the jury trial supplemented by evidence adduced at hearings held before the Court in January and April, 1972. Upon the receipt of comprehensive post-trial briefs, the Court took the case under consideration.

In June, 1973, the Supreme Court handed down its decision in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). In that case, Justice Rehnquist, speaking for an eight-man majority, concluded that municipal corporations were outside the ambit of § 1983 for purposes of equitable relief as well as for damages. Thereafter, this Court directed counsel to submit memoranda on the application of that decision to this case.

The parties have now been heard at length on this question. The issues have been briefed and ample time for submission of supplemental memoranda has been allowed. As part of their reaction to City of Kenosha, supra, plaintiffs have sought leave to amend their complaint to include as defendants the superintendent and certain members of the Board of Trustees of the defendant District in their individual capacities.

Plaintiffs have also persuasively presented to this Court a request for a decision which will avoid where possible the need for a time-consuming remand of this case in the event of a successful appeal by either party. For this reason, the opinion which follows will present alternative grounds in support of the final judgment of this Court. The Court must, however, decline the opportunity to render hypothetical judgments.


In response to the Court's requests for memoranda of law on the applicability of City of Kenosha, supra, to this case, all defendants have moved for dismissal of this action for failure to state a claim upon which relief may be granted.4 They urge as a defense the same legal position taken by them when this Court ruled in their favor in Harkless II (Dist.). But the Court of Appeals, in Harkless III (Cir.), reversed this Court's ruling. The decision of the Court of Appeals — that the District and the individual defendants sued in their representative capacities were "persons" within the meaning of § 1983 — has now become the "law of the case". Cf. 1B Moore's Federal Practice ¶ 0.040410.

There is, however, an exception to the "law of the case" doctrine which is well recognized in this Circuit. The doctrine does not apply where "there is an intervening change in the law by authoritative declaration of the authoritative court." Page v. St. Louis Southwestern Ry., 349 F.2d 820, 821 (5th Cir. 1965). The instant case is a classic example of such an intervening change in the law.

The law governing this case changed when the controlling decision of the Court of Appeals for the Fifth Circuit was over-shadowed by the decision of the Supreme Court in City of Kenosha, supra. The result has been described by Chief Judge Brown of the Fifth Circuit in Cason v. City of Jacksonville, 497 F. 2d 949 (5th Cir. 1974):

In Harkless v. Sweeny Independent School District, 5 Cir., 1970, 427 F.2d 319 Harkless III (Cir.) we distinguished Monroe and held that a "municipality" — in that case a school district — was a "person" within § 1983 for the purpose of equitable relief . . . The Supreme Court in City of Kenosha v. Bruno, citation omitted rejected the Harkless distinction and held that a municipality is not a person within § 1983 whether for damages or equitable relief . . . Cason, supra, 497 F.2d at 951.

Plaintiffs have not even contended that the Sweeny Independent School District is not to be treated as a municipality for the purpose of applying City of Kenosha, supra. The Court of Appeals has already found in this case that "the school district, under Texas law, is of the nature of a municipality . . ." Harkless III (Cir.), 427 F.2d at 321. Since the decision in City of Kenosha, the Fifth Circuit has reaffirmed the principle that a Texas school district is "in the nature of" a municipality. Campbell v. Masur, 486 F.2d 554, 555 (5th Cir. 1973).

Now, therefore, it is hereby ordered that plaintiffs' complaint against the defendant District must be and same hereby is dismissed both (a) for failure to state a claim under 42 U.S.C. § 1983, and (b) for lack of jurisdiction under 28 U.S.C. § 1343(3). See note 4, supra.


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