The opinion of the court was delivered by: LUONGO
This is a civil rights action for allegedly unconstitutional dismissal from public employment. The plaintiff, Marita K. Boyce, alleges that she was employed by the School District of Philadelphia until her dismissal in the spring of 1976; that on March 6, 1976, she was informed "that she was being laid off from her job"; that after exhaustion of accumulated vacation pay, she was removed from the School District's payroll on April 13; and that she has never received any official notice from the School District that she was terminated, and all attempts to gain rehire have been spurned, although several other employees who were laid off with her have since been rehired through the intercession of various political leaders. Plaintiff alleges further that she was discharged because of her political opposition to Philadelphia Mayor Frank L. Rizzo:
"14. . . . Boyce was informed that School District of Philadelphia officials terminated Plaintiff because she was anti-Rizzo, supported Louis Hill in the 1975 Democratic [Mayoral] Primary, and had made allegedly slanderous remarks concerning Mayor Rizzo and his administration.
The complaint characterizes plaintiff's dismissal as "retaliation for her expression of opinion and that of members of her family on matters of public concern."
Plaintiff instituted this action on October 7, 1977, naming as defendants the School District; its superintendent, Michael P. Marcase; and its personnel director, Murray Bookbinder. The action is asserted under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, 1986, and jurisdiction is based on 28 U.S.C. §§ 1343, 1443.
Plaintiff contends that the defendants acted under color of state law and that the dismissal violated her right to freedom of speech and association. She seeks damages and equitable relief.
Defendants have moved to dismiss the action for lack of jurisdiction (Fed. R. Civ. P. 12(b)(1)) and failure to state a claim upon which relief can be granted (Fed. R. Civ. P. 12(b)(6)). Their main contention is that the conduct of which plaintiff complains was not considered unconstitutional under legal precedents at the time of the dismissal and that subsequent judicial decisions favoring plaintiff's position should not be applied retroactively. They also contend that the claim under 42 U.S.C. § 1986 is barred by the statute of limitations. The School District contends further that as a governmental entity it cannot be held liable under the 1871 Civil Rights Act. I shall discuss the latter contention before addressing the other two.
The Civil Rights Act of 1871 only imposes liability on "persons", and it is now firmly established that state governmental entities are not "persons" within the meaning of that statute. See City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Moor v. County of Alameda, 411 U.S. 693, 706-10, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973); Monroe v. Pape, 365 U.S. 167, 187-92, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). In this case, plaintiff sues the School District itself as an entity; she is not suing the members of its governing school board individually. Of course, school districts are Pennsylvania governmental units. See generally Public School Code of 1949, §§ 201-298, as amended, 24 Pa. Stat. Ann. §§ 2-201 to 2-298 (Purdon); First Class City Public Education Home Rule Act, 53 Pa. Stat. Ann. §§ 13201 et seq. (Purdon). They therefore should not be subject to 1871 Act liability. I recognize that there have been cases in which liability has been imposed on school districts under this statute.
See, e.g., Brenden v. Independent School District 742, 342 F. Supp. 1224, 1229 & n.5 (D. Minn. 1972) (citing cases), aff'd, 477 F.2d 1292 (8th Cir. 1973). I also recognize that this question has been left open by past decisions of the Supreme Court (see Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 279, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977)), and that it is before the Court this term (Monell v. Department of Social Services, No. 75-1914, cert. granted, 429 U.S. 1071, 97 S. Ct. 807, 50 L. Ed. 2d 789 (1977)
). To me, however, the correct resolution of this question appears clear: governmental entities, including school districts, are not "persons" within the meaning of the 1871 Act. I therefore adhere to my recent holding in Lewis v. School District of Bristol Township, 443 F. Supp. 923, 924 (E.D. Pa. 1978), that a school district may not be held liable under the Civil Rights Act of 1871.
Defendants contend that plaintiff's allegations fail to state a claim upon which relief can be granted because under legal precedents at the time of plaintiff's dismissal their action was not unlawful. In particular, they point to American Federation of State, County and Municipal Employees v. Shapp, 443 Pa. 527, 280 A.2d 375 (1971), in which the Supreme Court of Pennsylvania held that dismissal for political reasons of public employees hired through the patronage system does not violate the United States Constitution or the 1871 Civil Rights Act. Accord, Nunnery v. Barber, 503 F.2d 1349 (4th Cir. 1974), cert. denied, 420 U.S. 1005, 43 L. Ed. 2d 763, 95 S. Ct. 1448 (1975). They contend further that more recent decisions favorable to plaintiff's position -- particularly Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) -- should not be applied retroactively.
Elrod was decided on June 28, 1976, more than two months after plaintiff was removed from the Philadelphia School District's payroll. In Elrod, Cook County, Illinois, Sheriff's Office employees affiliated with the Republican Party were discharged upon the election of a sheriff who was a member of the Democratic Party; the sole reason for the discharge was that the employees were not Democrats. A divided Supreme Court affirmed the holding of the Seventh Circuit Court of Appeals that the dismissal violated the Constitution. In a plurality opinion, Justice Brennan, joined by Justices White and Marshall, stated in broad terms that patronage dismissals violated First Amendment freedoms of political belief and association. 427 U.S. at 349-74. Justice Stewart, joined by Justice Blackmun, concurred in the judgment, declaring:
"The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot."
Plaintiff contends that she has stated a cause of action under Elrod and that the Elrod holding should be applied retroactively to the date of her dismissal. In making this argument, she notes that the Seventh Circuit's decision in Elrod (509 F.2d 1133) was rendered on January 30, 1975, long before plaintiff's dismissal, and that the action had been before the Supreme Court since its grant of certiorari on October 6, 1975 (423 U.S. 821, 96 S. Ct. 33, 46 L. Ed. 2d 37). It is also noteworthy that the Seventh Circuit's ruling was based on a 1972 decision which had reached the same result, ...