Local 858 of AF of T. v. SCHOOL D. NO. 1 IN CTY. OF DENVER

• Decision Date: 03 June 1970
• Docket Number: Civ. A. C-1393.
• Citation: 314 F. Supp. 1069
• Parties: LOCAL 858 OF the AMERICAN FEDERATION OF TEACHERS, a labor organization affiliated with the American Federation of Labor-Congress of Industrial Organizations, Franklin T. Garrison, for his own benefit and for the benefit of all other persons similarly situated, and Richard J. Rapp, Executive Secretary of Local 858, for his own benefit and for the benefit of all other persons similarly situated, Plaintiffs, v. SCHOOL DISTRICT NO. 1 IN the COUNTY OF DENVER and STATE OF COLORADO, Defendant, Denver Classroom Teachers Association, a Colorado corporation not for profit, Intervener.
• Court: U.S. District Court — District of Colorado

314 F. Supp. 1069

LOCAL 858 OF the AMERICAN FEDERATION OF TEACHERS, a labor organization affiliated with the American Federation of Labor-Congress of Industrial Organizations, Franklin T. Garrison, for his own benefit and for the benefit of all other persons similarly situated, and Richard J. Rapp, Executive Secretary of Local 858, for his own benefit and for the benefit of all other persons similarly situated, Plaintiffs, v. SCHOOL DISTRICT NO. 1 IN the COUNTY OF DENVER and STATE OF COLORADO, Defendant Denver Classroom Teachers Association, a Colorado corporation not for profit, Intervener.

Civ. A. C-1393.

United States District Court, D. Colorado.

June 3, 1970.

COPYRIGHT MATERIAL OMITTED

Lamm & Young, by Richard D. Lamm, Tom W. Lamm and H. Anthony Ruckel, Denver, Colo., for plaintiffs.

Henry, Cockrell, Quinn & Creighton, by Richard C. Cockrell, Denver, Colo., for defendant.

Fugate, Hobbs & Waldbaum, by Larry F. Hobbs, Denver, Colo., for intervener.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

This matter is before the Court on the motions of all parties for summary judgment. Plaintiffs are suing defendant School District and the Denver Classroom Teachers Association has intervened. Plaintiffs will be referred to as the AFT and the intervener will be referred to as DCTA. The essential factual background may be briefly summarized as follows. In the spring of 1969 an election was held in which a majority of the voting Denver teachers voted for the DCTA as their collective bargaining representative. The AFT lost. The School District and DCTA then entered negotiations for renewal of the previous agreement between them. At this time the AFT instituted suit, claiming that the denial by defendant of AFT's use and access to certain school facilities violated the constitutional rights of the AFT and certain individual AFT members.

Plaintiffs assert jurisdiction pursuant to 28 U.S.C.A. §§ 1343 and 2201 of a cause of action arising under the United States Constitution, Amendments One and Fourteen, and under 42 U.S.C.A. §§ 1983, 1985.

The AFT seeks a judgment declaring unlawful and enjoining the defendant from

1) denying AFT the right to use school buildings for meetings free of charge;

2) denying AFT the right to use school bulletin boards except during election campaigns;

3) denying AFT the right to use teachers' mailboxes except during election campaigns; and

4) denying AFT the right to have dues deducted from teachers' salaries.

These denials were made pursuant to the bargaining agreement between the School District and DCTA and are implemented by School District publications.

The parties agree that there is no genuine issue as to any material fact. The matter has been submitted on the respective motions for summary judgment, these motions having been fully briefed and oral argument heard.

ISSUES

The motions for summary judgment present, in essence, three issues.

1) Does this Court have jurisdiction to entertain this action? This is subject matter jurisdiction and depends primarily upon whether defendant School District is a "person" within the meaning of 42 U.S.C.A. § 1983.

2) Do the exclusive privileges granted DCTA deny the plaintiffs their First Amendment rights of free speech and association?

3) Do the exclusive privileges granted DCTA deny the plaintiffs their Fourteenth Amendment right of equal protection under the law?

JURISDICTION

Plaintiffs have claimed jurisdiction of the Court pursuant to 28 U.S.C.A. §§ 1343 and 2201. We assume that the jurisdiction claimed under § 1343 is that of subsections (3) and (4), which provide a jurisdiction, without regard to amount in controversy, Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), for cases in which a deprivation of a civil right by state action is alleged. Section 2201 provides for jurisdiction to provide declaratory relief where an actual controversy within the Court's jurisdiction is presented. In order that the Court have jurisdiction under 2201, it must already have jurisdiction under 1443. In order that the Court have jurisdiction under 1443, a cause of action must be alleged arising under 42 U.S.C.A. §§ 1983 or 1985.

Jurisdiction under § 2201 requires establishment of two principal jurisdictional facts. First, plaintiff must allege either a federal question or diversity of citizenship. Williams v. City of Wichita, Kansas, 279 F.2d 375 (10th Cir. 1960); Federal Insurance Co. v. Michigan Mutual Liability Co., 166 F.Supp. 537 (E.D.Pa.1958). Here there is no allegation of diversity, but the alleged activity of the defendant and intervener does present a federal question based upon the impairment of First Amendment rights of free speech and assembly. The second jurisdictional fact is the existence of an amount in controversy which exceeds the jurisdictional amount prescribed by 28 U.S.C.A. § 1331(a), unless the claim presents a federal question which is excepted from this requirement. Douglas holds that the federal question jurisdiction for deprivation of civil rights is excepted from the amount in controversy requirement. Thus, if the Court does have jurisdiction pursuant to 28 U.S.C.A. § 1343, and if a cause of action is alleged within the terms of 42 U.S.C.A. §§ 1983 and 1985, jurisdiction to provide a declaratory remedy is present.

The problem under 1983 and 1343 arises because Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), holds that a municipality is not a "person" within the meaning of 1983, and therefore cannot be held liable for damages under that provision. This means that for purposes of subject matter jurisdiction, the Court does not have the power to adjudicate claims for damages for alleged violations of civil rights by municipal corporations. Defendant and intervener seek to extend the Monroe holding to apply to this case and urge that the School District is, as a subdivision of the state, not a "person" within 1983.

However, this suit is an action for injunctive and declaratory relief, not for damages. We believe that Monroe is therefore distinguishable, and our disposal of this issue is governed by Dailey v. City of Lawton, Oklahoma, 425 F.2d 1037 (10th Cir. 1970). Dailey, a suit by several plaintiffs against the City of Lawton to enjoin the denial of a building permit for a low-income housing project, was brought under 28 U.S. C.A. § 1343 and 42 U.S.C.A. § 1983. The same argument concerning the scope of "person" was raised in that case, and the Tenth Circuit Court held that a municipality and its employees may be enjoined from action that violates Fourteenth Amendment rights.

Defendant seeks to distinguish Dailey from the instant case and asserts that Monroe is after all controlling, because the defendant here is a school district while the Dailey defendant was a municipality. Reliance is placed on Harkless v. Sweeny Independent School Dist., 300 F.Supp. 794 (S.D.Tex.1969), a case in which black teachers who were not rehired after an integration plan was put into effect sued the school district, the superintendent and members of the school board in their official capacities. The plaintiffs in Harkless alleged that the failure to offer them reemployment violated their civil rights. The district court there duplicated the Monroe analysis of the Civil Rights Act upon which 1983 is based and concluded that Congress intended to exclude municipalities from the liabilities imposed. It further concluded that since there was no evidence of an intent to distinguish municipalities from other political subdivisions of a state, a school district as such a subdivision is not a person within 1983.

This attempt to distinguish the controlling Tenth Circuit case, Dailey, aside from its logical inconsistency, is not persuasive. We have found one other case which holds that a school district is not a person under 1983 because a municipality is not a person under 1983. Harvey v. Sadler, 331 F.2d 387 (9th Cir. 1964), makes this extension of Monroe without discussion. There are, however, numerous cases allowing suits under 1983 against school districts and other political subdivisions of states.

Dailey mentions two instances where the defendants were municipalities in which Monroe has been held not to control suits for injunctive relief under 1983. Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir. 1961); Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969). Adams is expressly followed on this issue by Atkins v. City of Charlotte, 296 F.Supp. 1068, 1073 (W.D. N.C.1969), a suit challenging the constitutionality of statutes prohibiting government employees from joining national school districts and legislatures in which labor organizations.

We further note numerous cases naming as party defendants states, cities, injunctive relief from violation of constitutionally protected rights was sought under 1983. These cases ignore the Monroe holding, do not discuss the "person" issue, and were decided after Monroe, thus rendering the illusive meaning of the famous footnote 50, 365 U.S. at 191, 81 S.Ct. 473, irrelevant. See, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Raney v. Board of Education of Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); and Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).

The Harkless decision is contrary to the position of two judicial circuits, which have allowed the exact type of lawsuit against school districts by teachers displaced by implementation of integration plans. Wall v. Stanley County Board of Education, 378 F.2d 275 (4th Cir. 1967), and Rolfe v. County Board of Education of Lincoln County, Tenn., 391 F.2d 77 (6th Cir. 1968), were both decided without reference to the "pers...