Murphy v. Mount Carmel High School

• Decision Date: 02 November 1976
• Docket Number: Nos. 75-1443,75-1631,s. 75-1443
• Parties: Daniel R. MURPHY, Plaintiff-Appellant, v. MOUNT CARMEL HIGH SCHOOL et al., Defendants-Appellees. Gerald A. SENESE, Plaintiff-Appellant, v. Robert SIMPSON et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1189

543 F.2d 1189

Daniel R. MURPHY, Plaintiff-Appellant, v. MOUNT CARMEL HIGH SCHOOL et al., Defendants-Appellees.

Gerald A. SENESE, Plaintiff-Appellant, v. Robert SIMPSON et al., Defendants-Appellees.

Nos. 75-1443, 75-1631.

United States Court of Appeals Seventh Circuit.

Argued Feb. 12, 1976.

Decided Oct. 4, 1976.

Rehearing and Rehearing En Banc Denied Nov. 2, 1976.

Edward J. Benett, Chicago, Ill., for plaintiff-appellant in 75-1443.

James R. Cox, Thomas F. Roche, Chicago, Ill., for defendants-appellees in 75-1443.

Michael J. Smith, Chicago, Ill., for plaintiff-appellant in 75-1631.

Marvin Gittler, Chicago, Ill., for defendants-appellees in 75-1631.

Before FAIRCHILD, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.

FAIRCHILD, Chief Judge.

Appellants in these two cases contend that they have asserted claims under 42 U.S.C. § 1985(3) which fulfill the requirements stated in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

I

No. 75-1443 Murphy v. Mount Carmel High School, et al.

The appellant, Daniel Murphy, was a tenured teacher of ten years at the appellee Mount Carmel High School, privately operated. On May 6, 1974, Murphy was dismissed by the defendants for failing to adhere to the school's recently enacted dress code. After a hearing, Murphy's dismissal was upheld.

The appellant alleges that defendant school administrators conspired to cause his dismissal from the school. Murphy claims that he openly advocated positions concerning racial and sex equality which defendants found objectionable. In addition, he alleges that his criticism of school policies regarding the hiring of minority faculty and the enforcement of a student dress code served as the real reasons for his dismissal. Murphy argues, that although he is a white male, the conspiracy by the school administrators deprived him of his First Amendment right to speak out on behalf of black people and women and resulted in his dismissal. He seeks compensatory relief and reinstatement to his position under the authority of § 1985(3). The district court, however, dismissed the appellant's complaint for failure to state a cause of action upon which relief can be granted. No. 75-1631 Gerald H. Senese v. Robert Simpson, et al.

The appellant, Gerald A. Senese, was an employee of the Woodlawn Hospital in Chicago. Defendants were attempting to organize the employees, and to promote a strike. Senese was not a union member. On June 14, 1972, he alleges that while he was attempting to enter the hospital, defendants, in an effort to single out a nonstriking employee, conspired to and did assault and injure Senese. Senese complains that this assault, causing him serious injury and preventing him from attending the place of his employment, deprived him of rights guaranteed by various provisions of the Constitution. The rights specifically referred to were the right to associate with non-union employees and to engage in his lawful trade.

The appellant argues that the conspiracy was motivated by an animus against non-union hospital employees and that this sufficiently meets the Griffin requirement of "class-based, invidiously discriminatory animus." He asserts that he was deprived of "federally protected rights" and therefore entitled to compensatory and punitive damages under § 1985(3) and two pendent state assault and battery claims. The district court, having determined that Senese did not allege "either class-based discrimination or state involvement," dismissed the complaint for failure to state a claim upon which relief can be granted.

II

In Griffin, the Supreme Court performed a two-level analysis of the complaint in order to decide whether a cause of action under § 1985(3) had been stated. It decided that the statute provided a cause of action albeit the conspirators were private persons, and construed the "language requiring intent to deprive of equal protection, or equal privileges and immunities," as requiring "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all." 403 U.S. at 102, 91 S.Ct. at 1798 (footnote omitted). The Court specifically held that to seek relief under § 1985(3) a complaint must allege four elements:

" . . . defendants did (1) 'conspire . . .' (2) 'for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.' It must then assert that one or more of the conspirators (3) did, or caused to be done, 'any act in furtherance of the object of (the) conspiracy,' whereby another was (4a) 'injured in his person or property' or (4b) 'deprived of having or exercising any right or privilege of a citizen of the United States.' " Griffin, supra, at 102, 91 S.Ct. at 1798.

The Court then considered, first, whether the facts alleged in the complaint before it fell within the terms of § 1985(3) as so construed. Secondly, recognizing that conduct within the terms of the statute might be beyond the power of Congress to regulate, the Court identified the source of congressional power to reach the conduct alleged.

The plaintiffs in Griffin were Negroes; the alleged purpose of the conspiracy was to prevent plaintiffs and other Negro-Americans from seeking equal protection of the laws and enjoying equal rights, privileges and immunities of citizens, including the right to travel, of association and of speech. The Court readily found that the allegations of the purpose of the conspiracy showed the necessary "racial . . . class-based, invidiously discriminatory animus," and that personal injury resulting from acts done in furtherance of the conspiracy was adequately alleged.

The Court then identified two sources of congressional power to impose liability for the conduct alleged. The first source was the Thirteenth Amendment: "We can only conclude that Congress was wholly within its power under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men." 403 U.S. at 105, 91 S.Ct. at p. 1800. The Court further concluded that the complaint sufficiently alleged that plaintiffs' "federal right to travel interstate was one of the rights meant to be discriminatorily impaired by the conspiracy," and that imposition of liability for conduct with such purpose is within the power of Congress to protect the right of interstate travel. 403 U.S. at 106, 91 S.Ct. at 1800.

III

Murphy's complaint is extremely detailed, if not prolix, and the theory of the asserted § 1985(3) cause of action is difficult to discern. It seems fair to say that the purpose of the conspiracy alleged was to deprive Murphy of his freedom of speech at the school, concerning school policies. Curtailment of speech, apparently, was the claimed deprivation "of the equal protection of the laws, or of the equal privileges and immunities under the laws." As will be developed hereinafter, a § 1985(3) federal cause of action for injury arising out of a purely private conspiracy to interfere with freedom of expression, without state involvement, is not constitutionally supportable.

It is true that Murphy is alleged to have spoken, among other things, against discriminatory practices of the school toward black students and teachers and women teachers. The complaint, in our view, falls short of charging that the conspiracy was aimed at discriminatory treatment of black persons or women. It never identifies the legal rights of which the conspirators wished to deprive members of those classes. Even if the complaint did charge a conspiracy to deprive members of those classes of equal protection of the laws or of equal privileges and immunities under the laws, consistent with Griffin, the question would remain whether a plaintiff who is an advocate for but not a member of the class can recover under § 1985(3) and whether the likelihood of fomenting discrimination by curtailing Murphy's speech at one school is not just too remote from the purposes of § 1985(3). At least in Dombrowski v. Dowling, 459 F.2d 190, 195, this court held that a white plaintiff cannot claim a cause of action on the Thirteenth Amendment theory of Griffin. We conclude that the complaint at bar does not require us to resolve these questions.

Senese alleges that the object of the conspiracy was to deprive him of his First Amendment right to associate with his fellow non-union employees. He claims that the assault upon him was an act in furtherance of this conspiracy. ¹ As a result of this act, he suffered bodily injury, and impairment of his right to freely associate with non-union workers and the right to attend and perform his job. ²

Appellants argue that curtailment of their interests secured by the First Amendment is a deprivation of equal protection of the law, and, therefore, satisfies the requirements of a § 1985(3) complaint as determined in Griffin. Such a denial is actionable under § 1985(3) if the Fourteenth Amendment may be interpreted as a source of congressional power for the protection of these First Amendment interests.

This question was not decided by Griffin. Decisions of this court, however, have indicated possible solutions. In Dombrowski v. Dowling, 459 F.2d 190 (1972), this court gave weight to the historical relationship between § 1983 and § 1985(3), and concluded that it is essential, in construing § 1985(3), to identify the interests Congress intended to protect from unequal treatment. "The breadth of the statute's coverage is yet to be determined, but three categories of protected rights have been plainly identified. Griffin gives express recognition to a black citizen's ...