Harkless v. Sweeny Independent School District

• Decision Date: 02 June 1970
• Docket Number: No. 28188.,28188.
• Parties: Mildred HARKLESS et al., Plaintiffs-Appellants, v. The SWEENY INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

427 F.2d 319 (1970)

Mildred HARKLESS et al., Plaintiffs-Appellants, v. The SWEENY INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellees.

No. 28188.

United States Court of Appeals, Fifth Circuit.

June 2, 1970.

Conrad K. Harper, Jack Greenberg, James M. Nabrit, III, William Bennett Turner, W. Haywood Burns, New York

City, Weldon H. Berry, Houston, Tex., for plaintiffs-appellants.

Grant Cook, Houston, Tex., for defendants-appellees.

Before JONES, BELL, and GODBOLD, Circuit Judges.

BELL, Circuit Judge:

This appeal involves an action brought by ten Negro teachers alleging that the failure of the school district to renew their teaching contracts when the school system was desegregated denied them rights secured by the Fourteenth Amendment. They seek reinstatement and back pay. Jurisdiction is premised on 28 U.S.C.A. § 1343(3) and 42 U.S.C. A. § 1983.¹

The district court, after full jury trial, granted the defendants' motion to dismiss for failure to state a claim upon which relief could be granted. This was the result of applying Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed.2d 492, to hold that the defendants — the school district, and the school trustees and the superintendent in their official or representative capacities — could not be sued under § 1983. Being of a contrary view, we reverse.

After adopting a plan for complete school desegregation in the spring of 1966, the Sweeny Independent School District was able to reduce the number of its faculty for the school year 1966-67. In the process, 17 of the 25 Negro teachers in the system were not offered re-employment. This suit followed.

The complaint originally named each member of the board of trustees of the district and the superintendent in his individual as well as his representative capacity. Over objection, the district court granted the demand of defendants for jury trial as to the prayer for back pay and exercised its discretion under Rule 39(b), F.R.Civ.P., to also order a jury trial on all other factual issues.² Because of the unwillingness expressed at the voir dire examination by two veniremen to assess monetary damages against the defendants as individuals, plaintiffs dismissed the complaint as to the defendants in their individual capacities. Thus the suit proceeded against the trustees and the superintendent as defendants only in their representative capacities. The suit also proceeded against the school district.

During the trial and after the defendants in their individual capacities had been dismissed, the applicability of Monroe v. Pape, supra, to the question whether a cause of action was stated was drawn into issue. Put differently, would a suit lie against defendants as being "persons" within the meaning of 42 U.S.C.A. § 1983? The jurisdictional statute, § 1343(3), supra, is to accommodate suits otherwise authorized by law, here under § 1983. Defendants moved to dismiss on this basis and the motion was carried with the case.

The case was submitted to the jury on special interrogatories. The jury returned a verdict finding that the decision not to rehire the plaintiffs was made without regard to their race, and that defendants acted in good faith, objectively comparing the qualifications of all teachers. However, the jury found that participation in this litigation was a factor in the decision not to offer re-employment to seven of the plaintiffs.

At this juncture, the district court granted the motion to dismiss. The court determined that plaintiffs had failed to state a cause of action under § 1983, relying on Monroe v. Pape, supra. See Harkless v. Sweeny Independent School District of Sweeny, Texas, S.D. Tex., 1969, 300 F.Supp. 794. This issue will be first considered. Because we conclude that it was erroneously decided, it will also be necessary, secondarily, to resolve the additional issue whether the court erred in granting a jury trial.

I.

The nub of this controversy is the breadth of the holding in Monroe v. Pape. We must follow that holding to its outer limits. The jurisdictional basis for this suit is 28 U.S.C.A. § 1343(3). It provides federal jurisdiction of civil actions authorized by law. As stated, the source of authorization claimed by appellants is 42 U.S.C.A. § 1983.³ The defendants contest this authorization on the basis of Monroe v. Pape.

Ordinarily, under our system of law, a decision of a higher court is binding as a precedent to the extent of the ratio decidendi of the case. As the Supreme Court has said, advisory opinions are prohibited by Art. III of the Constitution. Stovall v. Denno, 1967, 388 U.S. 293, 301, 87 S.Ct. 1967, 18 L. Ed.2d 1199. Under such a limitation, the holding in Monroe v. Pape would be restricted by the facts of the case to proscribing a suit against a municipality under the doctrine of respondeat superior for damages. Here the school district, under Texas law, is of the nature of a municipality, Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20, 26 (1931); Lewis v. Independent School District of City of Austin, 139 Tex. 83, 161 S.W.2d 450, 452 (1942), but the relief sought is equitable only — reinstatement and back pay. Smith v. Hampton Training School for Nurses, 4 Cir., 1966, 360 F.2d 577, 581, fn. 8.

Monroe v. Pape was an action to recover damages for the misconduct of police officers. The recovery was sought under § 1983 against the officers and also against their employer, the City of Chicago, under respondeat superior. The Supreme Court held that a cause of action could be maintained under § 1983 against the police officers but concluded that municipal corporations were not within the ambit of § 1983. Thus the ratio decidendi of the decision is that no cause of action lies against a municipality under § 1983 for damages under the doctrine of respondeat superior for the conduct of its police officers.

In footnote 50 to the opinion, the court stated with reference to its holding that a municipality was not included in § 1983:

"This has been the view of the lower federal courts. Charlton v. City of Hialeah, 5 Cir., 188 F.2d 421, 423; Hewitt v. City of Jacksonville, 5 Cir., 188 F.2d 423, 424; Cobb v. City of Malden, 1 Cir., 202 F.2d 701, 703; Agnew v. City of Compton, 9 Cir., 239 F.2d 226, 230; Cuiksa v. City of Mansfield, 6 Cir., 250 F.2d 700, 703-704. In a few cases in which equitable relief has been sought, a municipality has been named, along with city officials, as defendant where violations of 42 U.S.C. § 1983 were alleged. See, e. g., Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877 882, 87 L.Ed. 1324; Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L. Ed. 776. The question dealt with in our opinion was not raised in those cases, either by the parties or by the Court. Since we hold that a municipal corporation is not a `person\' within the meaning of § 1983, no inference to the contrary can any longer be drawn from those cases."⁴

The district court read footnote 50 as meaning that municipalities were not "persons" within the meaning of § 1983 for any purpose — in law or in equity and based its decision on Monroe v. Pape in this posture. No suit would lie against a municipality under § 1983 under any circumstances.

The position of the district court was two-fold: Monroe v. Pape prohibited a suit against the school district under § 1983; perceiving no legal distinction between the school district, and its trustees and superintendent acting in their representative capacities, it followed that no suit would lie against the trustees and superintendent. It is to be remembered that, at this point in the proceedings, plaintiffs had dismissed the trustees and the superintendent as individuals.

We do not read footnote 50 so broadly. We read it within the context of the holding of the court and the text to which it is appended. We think the court was saying in the footnote that the issue of damages against municipalities under respondeat superior was a question not raised in the equitable relief cases cited and that no inference may be drawn from those cases that a municipal corporation is a person within the meaning of § 1983 for the purposes of a damage claim against it under respondeat superior. We do not perceive that the court was expanding its holding by a footnote dictum to eliminate municipalities as "persons" under § 1983 for the purposes of equitable relief, a question not expressly considered in the cited equitable relief cases.

Moreover, there are other reasons which buttress our interpretation of footnote 50. For one, it is worth noting that the Supreme Court has not followed the district court interpretation of the footnote. It is true that the question has not been expressly considered but a ruling has been rendered against a school district in a § 1983 case with no mention being made of any such limitation as to equitable relief.

We have reference to the case of Tinker v. Des Moines Community School District, 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731. There injunctive relief was sought because of the expulsion of students. The school district was a defendant along with its directors and certain school officials. The injunctive relief was sought only against the directors and officials. Jurisdiction was based on 42 U.S.C.A. § 1983 and 28 U. S.C.A. § 1343(3). The court decided the case in favor of plaintiffs. There was no reference to the § 1983 question as it might apply to the school district.

In Tinker, the Supreme Court cited Ferrell v. Dallas Independent School District, 5 Cir., 1968, 392 F.2d 697, a suit seeking equitable relief against a Texas school district, the school superintendent and a school principal. The merits of the case were considered there just as was the case in Tinker and no question was presented as to the cause of action being barred under Monroe v. Pape.

In addition, the Seventh Circuit has twice held that Monroe v. Pape is not to be applied to prohibit suits against municipalities...