author: O’SULLIVAN, Senior Circuit Judge. FAIRCHILD, Circuit Judge

text:
    Clara S. BRUBAKER et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION, SCHOOL DISTRICT 149, COOK COUNTY, ILLINOIS, a body politic and corporate, et al., Defendants-Appellees.
    No. 72-1898.
    United States Court of Appeals, Seventh Circuit.
    Heard Sept. 24,1973.
    Decided July 31, 1974.
    On Rehearing En Banc Dec. 17, 1974.
    Fairchild, Circuit Judge, dissented and filed opinion.

      Allen H. Gerstein, Chicago, 111., for plaintiff s-appellants.
    Mitchell J. Overgaard, Chicago, 111., for defendants-appellees.
    Before ENOCH and O’SULLIVAN Senior Circuit Judges, and FAIR-CHILD, Circuit Judge.

       Honorable Clifford O’Sullivan of the Sixth Circuit, sitting by designation.

   O’SULLIVAN, Senior Circuit Judge.

This appeal concerns the discharge by defendant Board of Education of three public school teachers — plaintiff-appellants — for distributing or causing to be distributed to their eighth grade pupils allegedly obscene and improper reading materials. Action was brought against the appellees, Board of Education, its members and agents, in the United States District Court for the Northern District of Illinois, Eastern Division. For their cause of action, plaintiffs charged that defendants’ action abridged their civil rights secured to them by 42 U-S.C. § 1983, and their rights under the First and Fourteenth Amendments. Jurisdiction of the Court was based upon 28 U.S.C. §§ 1332 and 1343(3) and (4). The litigation was concluded in the District Court by an order granting defendant-appellees’ motion for summary judgment. From such order, plaintiffs appeal.

We affirm.

Clara S. Brubaker, John W. Brubaker and Ronald E. Sievert were teachers of eighth grade students in public schools operated by the Board of Education of District 149, Cook County, Illinois. They were all non-tenured, and their respective one-year contracts were to expire on June 12, 1970. Prior to the events here involved, the Brubakers had been advised that they would not be rehired, while Sievert had been notified that he would be retained for the 1970-71 school year.

In April, 1970, Clara Brubaker and another teacher, not involved here, attended the movie “Woodstock” which documented the 1969 rock festival by the same name. A number of relevant bro-^ chures were acquired at the theatre. These contained various articles, poems and pictures. One article — or poem— entitled “Getting Together” contained material which brought about the discharge of the plaintiffs. Its total content is set out in the brochure “Woodstock” a copy of which is made an appendix hereto. Those parts relating to : drugs, sexual behavior and what might be called vulgarities are as follows:

“Woodstock felt like home. A place to take acid. A place to make love. Felt a little like a place we'd been before, but hard to remember, like yesterday’s vision, like last night’s dream. But now it’s all now, and it feels like we’re never turning back. •X- -X- -X* 'X- . *
Woodstock felt like a swell of energy, wave of elation that fills the heart and flows on over the lover beside you.
Woodstock was freedom. Don’t ever forget that. Don’t ever settle for less. * * * -X- -X *
Oh joy overflowing, oh lover caressing, I am what I have to share, oh take me completely! * -X -X- -X- -x- *
Grass smoked together.
Stink of our shit; Music of Laughter.
Gathering together.
Bodies naked into the water, touching each other, opening hearts into greater awareness of being together of living on the planet
of being part of something — a movement, a motion, like a drop of water in the crest of the tide, moving together we’re a big fucking wave . ! ******
Its only the beginning.
* * * * * *- Old world crumbling, new world being born.”
(Emphasis supplied.)

As a message to the minds of eighth graders, the brochure’s poetry can and probably must be fairly read as an alluring invitation and a beckoning for them to throw off the dull discipline imposed on them by the moral environment of their home Hfe, and in exchange to enter into a new world of love and freedom— freedom to use acid and grass, freedom to take their clothes off and to get an early start in the use of such vulgarities as “shit,” “fucking,” and their companions.

It is probably a fair inference that by second or third year high school most American males have become familiar with, and at times employ, these and like words. Is it only a forlorn hope, however, that most of our young ladies will never employ that kind of speech ?

Clara Brubaker, who taught French at various primary grade schools, placed some of these brochures in the teachers’ lounges and also gave copies to her husband, John Brubaker, and to Ronald Sievert, allegedly for use in their classes. She did not herself distribute any brochures to students, but did display one of the brochure’s posters in her classroom.

Copies of the brochure were then made available to the eighth grade students in John Brubaker’s and Ronald Sievert’s classes. In due time, these brochures found their way into the homes of some of the students. When parents complained to the principal, ap-pellee John Condon, (especially about the poem “Getting Together”), appellants were asked by Superintendent James R. Albert whether they had made copies of the brochure available to the students. He was told that appellants had done so, and Albert reported his findings to the appellee Board of Education members at a closed session on April 30, 1970. The next day the Board resolved to dismiss appellants as of May 4, 1970. Each teacher received a letter advising of the Board’s adoption of the following Resolution :

“Resolve that [teacher’s name] be dismissed as a teacher of the District effective May 4, 1970 for circulating within the schools of the District certain promotional material entitled “Woodstock” which material is of an obscene and suggestive nature, promotes a viewpoint contrary to the requirements of the laws of the State in regard to teaching about the harmful effects of alcoholic drinks and narcotics, and was distributed contrary to the provisions of policy 3547 of the Policies and By-Laws of School District 149, Cook County, Illinois, prohibiting the distribution within the schools or on school property of any material other than material purchased, procurred [sic] or furnished under the initiative and with the approval of the Board of Education of the District for distribution and use in its Educational Program.
“Be It Further Resolved that the secretary of the Board be authorized and directed to prepare a letter to the teacher notifying him [or her] of this action and that the Superintendent be authorized and directed to deliver said letter to the teacher in person as soon as convenient.”

Before the efféctive date of discharge, an attorney contacted the School District, asking for “the setting of a hearing date with regard to the charges pursuant to which they [plaintiffs] were dismissed.” This request was reiterated in a letter of May 15, 1970, from a staff attorney for the American Civil Liberties Union to the School District’s attorney. The letter concluded:

“I also hereby demand a written bill of particulars, a list of witnesses who may or may not be called to testify on behalf of the school board, and copies of any written statements heretofore made by such witnesses in writing or made orally and committed to writing.”

In this letter, plaintiffs’ attorney also observed:

“There is a recent case, Roth v. Board of Regents, decided on March 9, 1970 in the federal court district for the Western District of Wisconsin, which, I am told, summarizes the procedural requirements for dismissal of non-tenured university professors at state institutions. However, I have not had time as yet to track down that opinion. Of course, it is our position that the same procedural due process standards apply to teachers in the public school system as to teachers in the public university system.”

On May 28, 1970, the School District attorney replied that the Board had considered plaintiffs’ request but declined to grant such a hearing. No further action was taken, nor address made to the School Board for about a year, and then on April 22, 1971, this lawsuit was started. The District Court decision of Roth v. Board of Regents, 310 F.Supp. 972 (W.D.Wise.1970), referred to in counsel for plaintiffs’ letter of May 15, 1970, was then pending on appeal in this Court.

In their complaint, appellants charged that appellees had abridged their First and Fourteenth Amendment freedoms and their civil rights and in addition had breached their contracts and defamed them. Appellants each sought reinstatement, together with an award of back salary and compensatory and punitive damages for willful defamation in the amount of $200,000 each. An award of attorney fees was also sought.

The complaint set out that Clara Bru-baker had placed a number of the brochures in the teachers’ lounges at four or five schools where she taught French, gave a number of copies to plaintiffs John Brubaker and Ronald K. Sievert, and “display [ed] the poster contained therein [in the brochure] in her classroom.” She made no allegation that the brochure or its contents were in any way relevant to what she was teaching. It was further alleged that plaintiffs John Brubaker and Ronald K. Sievert had placed the brochures on their desks to be available to their students.

Appellants claim that the brochure had relevancy to what was being taught to the eighth grade students. Appellant Sievert said it had relevancy to his teaching assignment — Language Arts— because under his guidance his class was studying the history of rock music. We are not advised what rock music has to do with Language Arts, but appellant Sievert testified:

“We were to begin a new unit that day, but since we had just finished the other unit on the evolution of music I took out a brochure and I opened it up and instead of showing it I said, T have a brochure here which might be of interest to you because it seems to pertain specifically to what we just studied.’
“And I said, ‘It has a very colorful poster in it as well, which I think you may well be interested in,’ and so I held up the poster part and got ooh’s and ahh’s from the class.”
******
“So most of them were rather impressed, I think, by the colorful poster, and after showing this to them I said they could have one after the class period.”
******
“Nobody took any until after the class period, when I said, ‘Okay. Now you can come up and get the poster,’ where they just rushed literally to the file cabinet and were just grabbing like crazy, trying to get as many as they could.”

He testified that the brochure was not given to him by the school authorities; also that examination of it would quickly disclose that its material had not been prepared for classroom use.

He said that as to the poem “Getting Together” he felt that the young people could handle it quite well — “I was fearing mainly the reaction of parents and administrators.”

Appellant John Brubaker’s teaching assignment was solely “Industrial Arts.” As to the relevancy of the Woodstock brochure to that subject, he said: “I think that this whole thing contributed to the interest of my class in musical instruments.” He added that such would be true of the poetry also, saying that as to the words of the poem, “there was nothing wrong with them * * * they were part of the regular vocabulary of youngsters of this age.” Neither Brubaker not Sievert explained to their students any claimed relevancy of the Woodstock brochure.

In due course appellees made a Motion to Dismiss the Complaint, averring that plaintiffs had no constitutional right to a hearing concerning the reasons for their discharge; that plaintiffs had admitted the misconduct which had brought on their discharge; that furnishing eighth grade students brochures containing the language set out above was not an activity protected by the First or Fourteenth Amendments or an exercise of civil rights; and that such material was without relevancy to the classes taught by plaintiffs. Appellees further contended that dismissal of plaintiffs was not a breach of their teaching contracts, that the truth of the alleged defamatory language had been admitted by plaintiffs, and that the allegedly defamatory statements were privileged.

This motion was denied by District Judge Hubert L. Will by order entered September 16,1971, as follows:

“Order defendants’ motion to dismiss the complaint is denied. Order defendants to answer complaint within 10 days.”

Following appellees’ ordered answer, plaintiffs on November 22, 1971, moved for a summary judgment as to its claims of “Violation of 1st and 14th Amendments” (Count I of their complaint) and “Violations of the Employment Agreements” (Count II). On December 21, 1971, District Judge William J. Bauer, to whom the case had been transferred, and upon the authority of this Court’s decision in Roth v. Board of Regents, 446 F.2d 806 (7th Cir. 1971) (Reversed thereafter in 1972 by the Supreme Court, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548), ordered the Board to provide appellants with a hearing and a statement of the reasons for their discharges.

The ordered hearings were held in early 1972 at which appellants were represented by counsel. Prior to such hearings each plaintiff was provided with a statement of the reasons for dismissal. The one given to John Brubaker included the following:

“1. That on or about April 20, 1970 John Brubaker, while employed as an industrial arts teacher of School District 149, made available to students of the district a brochure entitled ‘No one who was there will ever be the same’ with the knowledge and intention that students would take and retain copies of the brochure for their personal reading and inspection.
“2. That among the written material contained within said Woodstock brochure was a poem entitled ‘Getting Together’ containing language of an obscene and suggestive nature and promoting or otherwise favorably portraying the use of drugs and other hallucinogens.”

Reasons 3, 4 and 5 stated that the distributed brochure had not been approved for distribution and had not been prepared as a tool for school instruction; that appellants knew, or should have known, the contents of the brochure, and that Brubaker knew, or should have known, that:

“[T]he patent purpose of the brochure was to publicize a motion picture about and recorded music from the 1969 rock music festival known as the Woodstock Festival which festival was widely reported in newspapers and on television and criticized for the purported sexual promiscuity and drug use of its participants, and also since the film promoted by said brochure had been assigned and advertized as having an R rating by its distributors which rating provided that persons under 17 years of age were not to be admitted unless accompanied by a parent or adult guardian.”
Reasons 6 to 10 were as follows:
“6. That the language of the poem Getting Together contained in said brochure promoted a viewpoint contrary to the requirements of the laws of the State of Illinois in regard to teaching about the harmful effects of alcoholic drinks and narcotics as contained in Ill.Rev.Stat.1969, ch. 122, § 27-10.
“7. That the language in the poem Getting Together was contradictory and counteractant to the generally accepted objective of discouraging the use of drugs and other hallucinogens by young persons.
“8. That the language of the poem Getting Together contained in the brochure violates what are called the proprieties or the standards of what is socially acceptable in conduct, behavior and speech, especially as between adult and elementary school age children.
“9. That making the poem Getting Together as a part of the brochure available to elementary school age children without comment or criticism served no legitimate educational objective and that the language of the poem is not consistent with generally approved and professionally acceptable classroom material or generally accepted educational standards and practices.
“10. That the language and subject matter of the poem Getting Together contained in the brochure had no relevance or in any way related to the courses of study which John Brubaker was assigned to present nor which he was, in fact, giving.”

Those furnished Clara Brubaker and Ronald Sievert were of similar substance; the assigned reasons were substantially those originally given to appellants with notice of their dismissals.

At the relevant public hearings, testimony was presented by plaintiffs and by the Board. Plaintiffs produced two eminently educated men who expressed the view that the poem “Getting Together” was proper material to be given to eighth grade students. Both had received Ph.D’s from important American universities, and had studied and were currently active in the field of education.

The attention of these expert witnesses was called to the poem’s reference to the apparent joys of smoking grass— marijuana — and its invitation to Woodstock as “a place to take acid” — LSD— and to make love. They knew of the transports and ecstacies suggested by:

“Oh joy overflowing, Oh lover caressing * * * Oh take me completely * * * Grass smoked together. Stink of our shit; music of laughter. * * * Bodies naked into the water, touching each other, opening hearts into greater awareness. * * * Of being part of something — a movement, a motion * * * moving together we’re a big fucking wave.” (Emphasis supplied.)

Of the total work containing the above, one of such witnesses made the following comments:

“For all its apparent looseness as to Whitman, it has quality, it’s very tightly constructed, and it seems not too bad a poem.”

Further:

“I think there’s a good deal of artistic imagination and integrity in that poem.”

and, again,

“It would be very hard, I think to suggest that any of it is there for shock value, for crude and gross shock value. He does get some shock value out of the literary contrast, but for my money, it shows a great awareness of the literary tradition, a great sensitivity to language, to the development of English and American poetry.” (Emphasis supplied.)

and:

“You want a criticism, and I think myself that ‘Oh lover caressing’ is a little bit sentimental, but then you get from ‘Oh lover caressing’ down to the ‘Bodies naked into the water,’ where he plays the romantic sentimentality against the — well, the realism of ‘Bodies naked into the water’ is an actual knowledge of each other, the opening of hearts into greater awareness.” (Emphasis supplied.)
*X* * *X* ■X- -X- -X*
“I think the gentleness of this pose of lovemaking would be also of very great educational value. It might well have a considerable impression on them.”

This same witness also considered the furnishing of the poem to the eighth grade children and stated that he thought the teaching methods of Bru-baker and Sievert, employed in their Industrial Arts and Language Arts classes “are admirable.” He expanded this compliment by observing:

“It seems to me that they establish quite clearly that they had a good deal of sensitivity with the children and knew precisely' what children are interested in.”

He said of the words used in the poem that,

“there are perhaps better words than seem to have been suggested, but I think that, you know, in a way, these are sort of beautiful.” (Emphasis supplied.)

When asked whether the distribution of the brochure Woodstock would fit the “preponderant” opinion of the teaching profession, he answered, “it is the kind of material that is in public circulation and is, therefore, part of the material of the classroom.” He thought also that providing such material to the students would help to develop a “rapport with these students * * * as this all increases the general fluidity and realism of the classrooms.”

One of the experts also expressed himself as follows:

“[T]his is the real vision of the Woodstock thing, a whole notion of a new sense of community which I, for one, can deplore as having lost.” (Emphasis supplied.)

This witness also testified as follows:

“Q. I kind of get the feeling, Doctor, that what you are saying is that life is different really from what we adults and educators would like it to be and that we had better really attune our educational program to what it is really like as against what we prefer it to be.
“A. If we are to serve the children instead of our own anxieties, yes, by all means.”

Both of plaintiffs’ experts disclosed current activities having to do with training the minds of today’s children. One said he was,

“Engaged in the activity of the schooling and service training of teachers, to a degree watching them work with children.”

The other referred to his research for the National Institute of Child Health and Human Development. Thus the above quoted excerpts portray the attitudes and beliefs of some of the teachers of the teachers of today’s children. It was their opinion that teachers should not be required to get approval from school authorities before distributing such material as the Woodstock brochure to their students. Such a requirement, it was said, “demeans the teacher” and would,

“rigidify the teaching * * * it would simply make it at least difficult if not impossible to bring forth the kind of imaginative improvisation that * * * is especially important in a subject or a learning area like English.”

Questioned as to whether the poem’s suggestion of the joys of using drugs would offend the school’s obedience to an Illinois statute requiring the teaching of the effects of the use of narcotics, one of the experts disposed of the subject as follows:

“Q. Referring to the reference to drugs in that poem, do you think this poem * * * would tend to glorify that use?
“A. I think it may in part, that the latter would be true.”

And after some reference to what he described as our “drug .addicted society,” the witness concluded:

“ * * * so this additional exposure of the drug experience [its joyful use at Woodstock] I can’t conceive of it again as being anything but a trivial plus on the side of drug use.”

He later gave emphasis to the above by referring to the poem’s invitation to drugs as being “exceedingly trivial.”

One of plaintiffs’ experts found hypocrisy in the contrast between contemporary society’s professed notions of morality and the total conduct of that society. He said,

“but as a social scientist it is my considered opinion that society in the form and conduct of that society is indeed a sick society.”

We ponder, then, whether a vaccine or therapy to be given to our eighth graders .for this sickness — the hypocrisy of their seniors — may be found in exposure to Woodstock and its invitations.

At the hearing, appellants Brubaker and Sievert said they had not read the poem “Getting Together” before they first made it available to their students. There was testimony by the Board’s representative, however, that when these teachers were approached by him, they did not rely on such excuse. Rather, Brubaker and Sievert indicated that what was in the poem was something that the students “could handle.” At the ordered hearing they reiterated such a view.

Relevant to the testimony of appellants Brubaker and Sievert that they had not read the quoted poetry when they gave it to their classes, it should be emphasized that a substantial interval of time elapsed between their claimed tardy reading of it, the Board’s reaction to its distribution, and their termination. Neither of them, however, employed this interval to make an explanation or to express to their students disapproval of the poem.

A member of the staff of the Superintendent of Public Instruction for the State of Illinois testified in support of the action of the defendant Board. He was director of the state program for gifted children. By education and experience he was qualified to express his view that the Woodstock brochure and its poetry had no educational value and was inappropriate for distribution to grammar school children. He found invalid the offered excuse that appellants had not read the brochure’s poem “Getting Together” before distributing it. We share this view. Parents of children who had brought- the Woodstock brochure home also testified in support of the Board’s action.

We think it right also to observe that upon learning of the Board’s reaction to what had happened, none of the plaintiffs expressed any regret over the matter; neither did any of them seek reinstatement by assurance that corrective measures would be taken. They made no effort to come to a friendly solution with the Board. Their first step was employment of a lawyer who demanded a plenary hearing. This lawsuit followed almost a year thereafter. Whatever their ambivalence as to whether what they did was at most an innocent mistake or done after deliberation, their lawsuit insists and relies solely upon a position that what they did— providing, with their apparent approval, the Woodstock poetry — was but an exercise of the academic freedom guaranteed them by the United States Constitution.

After the hearing, the Board, by resolution adopted April 8, 1972, ratified and confirmed the dismissal of plaintiff-appellants. The resolution stated in part:

“WHEREAS, the Board of Education has heard the evidence presented by and on behalf of the teachers, and on behalf of the School Administration and has heard the arguments of counsel
* -X * * * X
the Board * * * finds that each of the reasons for the dismissal of the teachers served upon them on January 14, 1972 by service on their attorneys has been sustained by the evidence; X X X »

Plaintiffs and defendants thereafter filed renewed cross-motions for summary judgment, and on August 21, 1972, District Judge William Bauer denied plaintiffs’ motion and granted defendants’ motion. In deciding the legality of plaintiffs’ discharge, the Court felt that the question before it was: “have the plaintiffs herein been discharged for a basis wholly unsupported in fact or for a basis wholly without reason?” It would appear that by this expression District Judge Bauer was employing the language used by the District Judge in the case of Roth v. Board of Regents, 310 F.Supp. at 979. Upon a review of the proceedings before the Board, the Court concluded:

“It is this Court’s opinion that the distribution of the brochure is a basis for discharge that is not wholly without reason. The brochure contains a poem entitled ‘Getting Together’ which contains profane words and favorable references to drugs; this Court cannot say that all reasonable men would find that this poem was suitable reading material for elementary school children.
“Accordingly, this Court holds that there was a basis for discharge of the plaintiffs which was not wholly unsupported in fact or wholly without reason.”

That part of the District Court order which reads, “this Court cannot say that all reasonable men would find that this poem was suitable reading material for elementary school children,” is unknown to us as a rule controlling the District Court’s disposition of the matter. We consider, however, that his order’s total language constituted a finding adequate to sustain the final judgment.

The Issues Presented for Review, as set out in appellants’ brief, are:

That the District Court erred,
“1. In failing to find that plaintiffs’ constitutional rights, including particularly their academic freedom rights as protected by the First Amendment, were infringed by defendants’ action in dismissing plaintiffs from their employment as teachers.
“2. In failing to award plaintiffs back pay and attorneys’ fees based on .the district court’s earlier ruling that plaintiffs had been denied procedural due process in that they had not been given notice and a hearing prior to their discharge.
“3. In summarily dismissing plaintiffs’ claim relating to defamation of character, when said claim raised genuine issues as to material fact which were incapable of resolution on a motion for summary judgment.”

I. First Amendment and Civil Rights.

We have set out the factual background of this case at the above length because we believe that such recitation exposes the correctness of our affirmance of the District Court’s holding that the School Board’s action was not arbitrary or capricious, and was not an invasion of the appellants’ constitutional rights. Appellants assert that making available to their eighth grade students the Woodstock brochure’s poem “Getting Together” was an exercise of the free speech guaranteed to them by the First Amendment and an exercise of their Civil Rights, protection of which is vouchsafed to them by 42 U.S.C. § 1983. They said that their dismissal invaded their Right of Academic Freedom, and they suggest that what was done would have a “chilling effect” on the exercise of academic freedom by other teachers.

We do not believe that however much the reach of the First Amendment has been extended and however eager today’s courts have been to protect the many varieties of claims to civil rights, the ap-pellee school board had to put up with the described conduct of appellants.

Appellants’ address to us includes this statement:

“[I]nquiry should be made by the court as to whether the publication in question was inappropriate reading for the students involved and whether a serious educational purpose was sought to be achieved. Plaintiffs’ expert testimony at the hearing before the School Board, and defendants’ lack of testimony concerning this issue, established beyond any reasonable doubt that the use of the Woodstock brochure by plaintiffs was not only appropriate, but admirable as a teaching tool.” (Emphasis supplied.)

Relevant to this assertion, we observe that neither the appellants nor their experts emphasized with any degree of specificity what parts of the brochure, other than the poetry, could be classified as “admirable as a teaching tool.” The experts primarily addressed their applause to the poem.

Appellants further argue that they were denied due process,

“because there existed a lack of ascertainable standards by which they could measure their conduct.”

They do not attempt definition of the relevant and ascertainable standards which they say the School Board should have promulgated. We will not fault a school board for not anticipating that eighth grade teachers might distribute to their students, without explanation or assigned reason therefor, poetry of the caliber of “Getting Together.” Appellants say that the Board was wrong because it reached a conclusion as to the poetry’s impropriety,

“[w]ithout the benefit of any supporting expert testimony in the fields of literature, obscenity or drugs.”

Experts should not be needed to support a conclusion that is obvious. Moreover, the Supreme Court, in Paris Adult The-atre I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446 (1973), rejected the contention that “ ‘expert’ affirmative evidence that the materials were obscene,” was necessary when the alleged obscene material was itself placed in evidence. Similarly in this case no “expert” testimony was required.

Relative to the brochure’s admitted invitation to the use of drugs, the evidence disclosed that Ill.Rev.Stat. ch. 122, § 27-10 required that the “Nature and effect of alcoholic drinks and narcotics and their effects on the human system” be taught to pupils below the second year of high school and above the third year of elementary school work. Appellants argue that they were not aware of such statute, and that, therefore, it “did not constitute the kind of constitutionally permissible ascertainable standard which should have placed plaintiffs on notice that their conduct in distributing the Woodstock brochure [with its glorification of grass and acid] would subject them to dismissal.” Whether they knew of the statute or not, we consider that these teachers should have known better than to hand to their young students something that invited the use of the described drugs. Additionally, appellants had been aware of and had participated in previously presented teaching programs expounding upon the baleful consequences of the use of drugs and alcohol.

In rejecting appellants’ claim of academic freedom, we note the following from the First Circuit’s opinion in Mail-loux v. Kiley, 436 F.2d 565 (1st Cir. 1971), where a claim of academic freedom was similarly raised. There the Court said:

“The court in no way regrets its decision in Keefe v. Geanakos, 1 Cir., 1969, 418 F.2d 359, but it did not intend thereby to do away with what, to use an old-fashioned term, are considered the proprieties, or to give carte blanche in the name of academic free dom to conduct which can reasonably be deemed both offensive and unnecessary to the accomplishment of educational objectives. Cf. Close v. Lederle, 1 Cir., 1970, 424 F.2d 988, cert. denied, 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140. Here, particularly, such questions are matters of degree involving judgment on such factors as the age and sophistication of students, relevance of the educational purpose, and context and manner of presentation.’’ 436 F.2d at 566. (Emphasis supplied.)

In affirming the District Court order on remand, the First Circuit also said in Mailloux v. Kiley, supra,

“With all respect to the district court’s sensitive effort to devise guidelines for weighing those circumstances, 323 F.Supp. 1387, we suspect that any such formulation would introduce more problems than it would resolve. At present we see no substitute for a case-by-case inquiry into whether the legitimate interests of the authorities are demonstrably sufficient to circumscribe a teacher’s speech.” 448 F.2d at 1243.

The validity of our conclusion that the District Court properly found no violation of appellants’ First Amendment or Civil Rights emerges so clearly that we decline to add, by our own extended dissertation, to the already abundant literature on the subject we deal with.

II. Back Pay and Attorney Fees.

1) Back pay.

Appellants argue that in all events the Brubakers are entitled to an award for the pay that they would have received from the date of their termination— May 4, 1970 — to the end of the school year — June 12, 1970. Appellant Sievert seeks back pay for the above period and for the pay he would have received for the school year 1970-1971. As noted previously, all appellants were non-tenured teachers: the Brubakers had been advised before May 4, 1970, that they would not be employed for the following year. Sievert, however, had been advised before May 4, 1970, that they the 1970-71 school year. Appellants’ position is that notwithstanding that they had been given the reasons for their termination, they were also entitled to, but initially refused, a hearing. They argue that the court-ordered hearing did not provide them with due process.

Cases cited by appellants to support their claims for an award of back pay are distinguishable from the present case. Horton v. Orange County Bd. of Educ., 464 F.2d 536, 538 (4th Cir. 1972); Rolfe v. County Bd. of Educ., 391 F.2d 77, 81 (6th Cir. 1968); Jackson v. Wheatley School Dist. No. 28, 464 F.2d 411 (8th Cir. 1972); Bates v. Hinds, 334 F.Supp. 528, 533 (N.D.Tex. 1971); Callaway v. Kirkland, 334 F. Supp. 1034, 1038 (N.D.Ga.1971). In so distinguishing, we emphasize that the notices of termination given to appellants each set out the reasons therefor. As ordered, a plenary hearing was had before the School Board. The District Court held, and this Court now holds, that there was good cause for termination of each of the appellants.

In Horton v. Orange County Board of Education, supra, the court emphasized that:

“In none of the letters advising her [the discharged teacher] of the termination was she told of the grounds therefor.” 464 F.2d at 537.

Such failure is not present in our case.

Back pay was also allowed in Rolfe v. County Board of Education, supra, where the Sixth Circuit affirmed a District Court judgment,

“holding that the discharge of two schoolteachers, [plaintiffs] appellees herein, was discriminatory because it was based on consideration of race.” 391 F.2d at 78.

Also in Jackson v. Wheatley School District, No. 28 supra, the Eighth Circuit recited that in an earlier hearing of the same case,

“we held that the Wheatley School Board had unlawfully discharged three black teachers [the plaintiffs in the above cited case].” 464 F.2d at 412.

In Bates v. Hinds, supra, the District Judge’s opinion does not consider, nor rule upon, whether there were valid grounds for dismissal of the involved teacher. Although Bates was awarded back pay and attorney fees, the court’s ruling and award appear to have been bottomed upon the failure of the school authorities to give the discharged teacher a fair hearing or adequate notice of the reasons for his discharge. The District Judge said, inter alia:

“Plaintiff never received official word of his termination.” 334 F.Supp. at 531. * -X- * -X- * *
“The teacher * * * was not given written notice of the charges against him * * * ” 334 F.Supp. at 532. •X- -X- -X- -X- * -X-
“The Court concludes that Bates’ hearing satisfied neither the procedural due process standards set out by the Fifth Circuit nor the rudiments of fair play.” 334 F.Supp. at 533.

The case of Callaway v. Kirkland, supra, presented some procedural novelties inasmuch as the parties did agree upon a settlement. A District Judge, however, awarded back pay over and above the amount received by the teacher upon the settlement. In doing so, the District Court said:

“Since there has been no correction of the procedural defects connected with plaintiffs’ dismissal and no adjudication of the basis for the dismissal, the court need look no further than its ruling of December 29, 1970, to find that defendants unlawfully interfered with plaintiff’s expectancy of reemployment by summarily dismissing him without affording him procedural due process. Therefore, plaintiff is entitled to recover the back pay which he seeks.” •X- ->i * -x- * *
“Plaintiff has consistently denied defendants’ allegations of misconduct and has never been provided with 'a meaningful opportunity to counteract those allegations.” 334 F.Supp. at 1038. (Emphasis supplied.)

It is clear that none of the above eases are in point here where written notice of the reasons for termination were given, a court-ordered plenary hearing on the matter was had and the school board, a District Court, and this Court, hold that appellants were terminated for just cause.

We are essentially being asked to rule that where school authorities are made aware of a non-tenured teacher’s misconduct, they must continue such teacher in service until a full-dress hearing has been provided, or pay the terminated teacher’s salary until such hearing can be arranged. We decline to do so in this case where the propriety of the termination has been fully vindicated by the record made upon such hearing. It should also be emphasized that the attorney early engaged by appellants was promptly advised that his request for a hearing had been submitted to and declined by the Board. At the time .of these events, no decision of the United States Supreme Court, a United States Court of Appeals, or the courts of Illinois, had held that a hearing had to precede termination.

We mention, too, that appellants waited for almost a year from the time they received the reasons for their termination before instituting this lawsuit. At that time there was pending before this Court an appeal from a District Court holding that two non-tenured college professors were entitled to a hearing before they were refused reemployment for another year. The decision of this Court affirming such holding was announced July 1, 1971, after this suit was started, Roth v. Board of Regents of State Colleges, 446 F.2d 806 (7th Cir. 1971). Such decision was reversed by the Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The Supreme Court there held that non-tenured teachers are not entitled to a hearing upon a decision of school authorities not to reemploy them. That decision, however, held that termination of such teachers during an existing school year had to be accompanied by obedience to due process, 408 U.S. at 576-577, 92 S.Ct. 2701. But it did not say that termination had to await a hearing regardless of whether such hearing ultimately disclosed that the termination was for good cause.

We are aware of decisions which, under their facts, have said that a due process hearing should have preceded the challenged action. Such cases were referred to in footnote seven in Board of Regents of State Colleges v. Roth, 408 U.S. at 570, 92 S.Ct. 2701, cited to consider the need for a hearing “before the termination becomes effective.” Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). In Bell, a Georgia statute allowed suspension of the driver’s license of an uninsured motorist “involved in an accident * * * unless he posts security to cover the amount of damages claimed by aggrieved parties in reports of the accident.” (Emphasis supplied.) Such action would take place without reference to whether the public authorities had, or claimed to have, made any investigation as to whether the driver in question was at fault. In the present case, however, the school authorities had investigated the charged misconduct, and such misconduct was admitted to have occurred. The School Board’s decision to discharge appellants and their reasons therefor were made known to appellants. In the other case cited in Roth, Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), the Court stated the following:

“The Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest, ‘For, though “due process of law” generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings, . . . yet, this is not universally true.’ Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 280 [15 L.Ed. 372.] The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. Communications Comm’n v. WJR, 337 U.S. 265, 275-276 [69 S.Ct. 1097, 1103, 93 L.Ed. 1353]; Hannah v. Larche, 363 U.S. 420, 440, 442 [80 S.Ct. 1502, 1513-1514, 4 L.Ed.2d 1307]; Hagar v. Reclamation District No. 108, 111 U.S. 701, 708-709 [4 S.Ct. 663, 667, 28 L.Ed. 569]. ‘ “\_D~\ue process,” unlike some legal rules is not a technical conception with a fixed content unrelated to time, place and circumstances’ ” 367 U.S. at 894-895, 81 S.Ct. at 1748 (Emphasis supplied.)

We find no decision of the Supreme Court or of any of the Courts of Appeals holding that where, as here, the propriety of the discharge is sustained after plenary administrative and judicial hearings, the public authority — here a school board — must nevertheless pay the discharged employees their wages until such hearings shall have been concluded, however long delayed. The rule that appellants ask us to announce would require that, however wrong the admitted conduct of a school teacher, a school board must refrain from discharging her or him until a full dress hearing upon whether such conduct warranted discharge can be arranged and concluded. We decline to so hold.

We come finally to the question of whether the termination of the appellants without a prior hearing denied them due process of law. Since this case was heard in the District Court, and thereafter submitted to us on appeal, the Supreme Court opinion in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), has come down. We consider that its majority opinion sets at rest the question of whether, no matter what the cause, a hearing must as a matter of obedience to the Constitution, precede the termination of a teacher or any public employee. We read the opinion as holding that, such a prior hearing is not in all cases constitutionally essential. There, a civil service employee was terminated in conformity with an Act of Congress — 5 U. S.C. § 7501 — which, after setting out certain procedures that had to precede termination of a civil service employee, concluded:

“Examination of witnesses, trial, or hearing is not required but may be provided in the discretion of the individual directing the removal or suspension without pay.”

The Act required notice of the charges upon which termination was made and also provided for an appeal that could be taken after the termination to .test the validity of the discharge. Without resort to such departmental procedures, the involved employee began an action in the United States District Court attacking his discharge and asserting, as set out in Arnett v. Kennedy, supra,

“that the charges were unlawful because he had a right to a trial-type hearing before an impartial hearing officer before he could be removed from his employment * * 94 S.Ct. at 1637. (Emphasis supplied.)

He further asserted that statements made by him which caused his termination “were protected by the First Amendment to the United States Constitution.” It was. his position that his discharge prior to a hearing denied him “procedural'due process of law.”

A three-judge District Court, convened pursuant to 28 U.S.C. §§ 2282 and 2284, held that the discharge procedures authorized by the Act and attendant Civil Service and OEO Regulations denied appellee due process of law. By summary order it directed that appellee be reinstated in his former position with back pay, and that he be accorded a hearing prior to removal in any future removal proceedings. The District Court decision, reported as Kennedy v. Sanchez, 349 F.Supp. 863 (N.D.Ill.1972), sets out the claim which it sustained and its dispositive ruling as follows:

“[T]he procedure by which Kennedy’s employment was terminated deprives him and his class (which has not been determined) of due process under the Fifth Amendment by its failure to provide a full evidentiary hearing prior to termination, with the right to be heard by an impartial hearing officer ; the right to present witnesses; the right to confront and cross-examine adverse witnesses; and the right to a written decision indicating the reasons for discharge or suspension and the evidence relied upon. This Court agrees.” 349 F.Supp. at 864.

As we read it, the majority opinion of the Supreme Court in reversing the District Court held that a plenary hearing before a termination is not a constitutional essential of due process. There the Court was specifically dealing with a relevant Act of Congress wherein it was provided that in terminating a civil service employee it was not required that a hearing must be had prior to discharge. The thrust of the Court’s holding can best be gleaned from its statement as to the issue involved. The Court said:

“We must first decide whether these procedures established [by the Congress] for the purpose of determining whether there is ‘cause’ under the Lloyd-LaFollette Act for the dismissal of a federal employee comport with procedural due process, and then decide whether that standard of ‘cause’ for federal employee dismissals was within the constitutional power of Congress to adopt.” 94 S.Ct. at 1641. (Emphasis supplied.)

Its controlling opinion concluded that such procedures did comport with due process and that they were within the constitutional power of Congress to adopt. The opinion from which we quote above was written by Mr. Justice Rehnquist, with concurrence by the Chief Justice and Mr. Justice Stewart. A separate opinion was written by Mr. Justice Powell with the concurrence of Mr. Justice Blackman. Justice Powell’s opinion emphasized the post-termination procedures provided in the relevant Act of Congress. It began with the observation, inter alia, that,

“I also agree that appellee’s discharge did not contravene the Fifth Amendment guarantee of procedural due process.” 94 S.Ct. at 1649.

and concluded that:

“On balance, I would conclude that a prior evidentiary hearing is not required and that the present statute and regulations comport with due process by providing a reasonable accommodation of the competing interests.” 94 S.Ct. at 1653. (Emphasis supplied.)

We are aware that Justice Powell appears to have been motivated in part by the post-termination procedures available to, but not employed by, the discharged employee. As to the reach of the discussed opinion, we observe that it is the law that the Congress may not by its legislation override the Constitution any more than other public employers may do so. Applicable to the case at bar there did not exist any Illinois statute spelling out procedures to be followed in termination of a school teacher. In all events, the Kennedy decision sets at rest and denies appellants’ contention that absent a prior hearing the school board must pay back wages to the appellants. The appellants have now had a plenary hearing, the disclosures of which sustain the validity of the school board’s action. The fact that a hearing was initially refused and was had only when ordered by the District Court does not impair the rightness of what was originally done. We repeat that at the time of appellants’ termination there was no clear rule of law or constitutional command that a hearing was required. It is relevant too that appellants waited for nearly a year before invoking judicial help. At no time have appellants denied the doing of that which prompted the school board’s action. Their defense is, and was, that they had the right to do what they did. It should be mentioned that their initial demand for a hearing neither denied the factual recitals of the notice of termination, nor relied upon a claim ultimately made that what they did was merely an exercise of academic freedom.

Evidence at the hearing disclosed that complaints by the parents of appellants’ students activated the investigation which led to the board’s action. It was right for school authorities to take cognizance of such parental concern. The board did not act without providing appellants with opportunity to explain or offer justification for what they had done. Appellants did neither, and their first response was to employ a lawyer.

Upon consideration of the record before us, we decline to award back wages to appellants.

2) Attorney fees.

Allowance of attorney fees is an “inherent equitable power” of the court, utilized wherever “ ‘overriding considerations indicate the need for such a recovery.’ ” Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.2d 702 (1973). The Court in Hall stated the following principles for awarding attorney fees:

“Thus, it is unquestioned that a federal court may award counsel fees to a successful party when his opponent has acted ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.’ 6 J. Moore, Federal Practice If 54.77 [2], p. 1709 (2d ed. 1972); see, e. g., Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n. 4 [88 S.Ct. 964, 966, 19 L.Ed.2d 1263] (1968); Vaughan v. Atkinson, 369 U.S. 527 [82 S.Ct. 997, 8 L.Ed.2d 88] (1962); Bell v. School Bd. of Powhatan County, 321 F.2d 494 (CA 4 1963); Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (CA 4 1951). In this class of cases, the underlying rationale of ‘fee-shifting’ is, of course, punitive, and the essential element in triggering the award of fees is therefore the existence of ‘bad faith’ on the part of the unsuccessful litigant.
“Another established exception involves cases in which the plaintiff’s successful litigation confers ‘a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them.’” 412 U.S. at 5, 93 S.Ct. at 1946.

This Coui’t has long held that it is within the discretion of the District Court to allow or refuse the award of attorney fees, and that we will interfere only where that discretion has been abused. Gordon v. Illinois Bell Telephone Co., 330 F.2d 103, 107 (7th Cir.), cert. denied, 379 U.S. 909, 85 S.Ct. 197, 13 L.Ed.2d 182 (1964); Milwaukee Towne Corp. v. Loew’s, Inc., 190 F.2d 561, 571 (7th Cir. 1951), cert. denied, 342 U.S. 909, 72 S.Ct. 303, 96 L.Ed. 680 (1952); Official Aviation Guide Co. v. American Aviation Associates, Inc., 162 F.2d 541, 543 (7th Cir. 1947).

We find no such abuse in the present case. Our review convinces us that the board acted at all times in good faith; it did not intend to be oppressive as to the rights of appellants. We similarly find no benefit being conferred on “other members of an ascertainable class,” Hall, supra.

III. Defamation.

In count III of their complaint, appellants alleged that:

“The statements made by defendant members of the BOARD OF EDUCATION . . . were false and were known by said defendants to be false when made, recorded and published by them. Said statements were made by defendant members of the BOARD OF EDUCATION with the purpose of injuring plaintiffs.”

As a result of such statements, appellants claim to have suffered irreparable harm to their reputations. This claim was dismissed by Judge Bauer on defendants’ motion for summary judgment.

We first observe that the only relevant falsity resides in appellants’ above charge that the statements made by the Board “were false.” The truth of the facts upon which the terminations were made was admitted by appellants. We, however, discuss the subject this much further. Appellants’ brief alleges that “the matter” was discussed in “executive session” held on April 30, 1970, and an agreement as to dismissing appellants was reached on May 1, 1970. They allege further, however, that the resolution to dismiss, as set out at length herein, “was adopted in open session.” Statements made at such meetings have been held by the Illinois Courts to be absolutely privileged. McLaughlin v. Tilendis, 115 Ill.App.2d 148, 253 N.E.2d 85, 88 (1969); Larson v. Doner, 32 Ill.App.2d 471, 178 N.E.2d 399 (1961).

Because the question of whether an absolute privilege exists is a matter for the court to decide, Larson v. Doner, supra, 32 Ill.App.2d at 472, 178 N.E.2d at 400, and because there were no issues of material fact, the District Judge properly dismissed appellants’ defamation claim.

The decision of the District Court is affirmed.

FAIRCHILD, Circuit Judge

(dissenting).

I do not believe that the Woodstock brochure was either so irrelevant to educational goals or patently offensive that the plaintiffs were precluded from exercising their judgment as teachers and electing to employ it in their classes. Accordingly, I respectfully dissent from the majority's conclusion that the district court correctly held these discharges did not violate first amendment rights. I concur regarding the failure to award attorneys’ fees or back pay pending the Roth-type hearing,'and dismissal of the defamation action.

Freedom to discuss controversial or unpopular ideas in the schools is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1966). See also Tinker v. Des Moines School Dist., 393 U.S. 503, 506— 507, 89 S.Ct. 733, 21 L.Ed.2d 31 (1969). Academic freedom “d""''. not grant teachers a license to say or write in class whatever they may feel like.” Mailloux v. Kiley, 448 F.2d 1242, 1243 (1st Cir., 1971). See Clark v. Holmes, 474 F.2d 928, 931 (7th Cir., 1972), cert. denied 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695 (1973). However, particularly where the school board has not formulated standards to guide him, academic freedom affords a teacher a certain latitude in judging whether material is suitable and relevant to his instruction. “First Amendment freedoms need breathing space to survive. . . .” N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963).

These instructors did not exceed the bounds which germaneness places on protected classroom speech. The discussion and distribution of the Woodstock brochure consumed no significant amount of school time. Compare State ex rel. Wasilewski v. Bd. of School Directors, 14 Wis.2d 243, 260-261, 111 N.W.2d 198, 208-209 (1961), appeal dismissed, 370 U. S. 720, 82 S.Ct. 1574, 8 L.Ed.2d 802 (1962). Further, it was arguably relevant to the course of instruction. Sievert’s class had just completed study of the history of rock music; Brubaker’s was considering the construction of musical instruments. The 1969 rock music festival at Woodstock, New York had at least some significance to these subjects, significance which was perhaps more evident in April, 1970 than it is today. More importantly, however, the appropriateness of a particular classroom discussion topic cannot be gauged solely by its logical nexus to the subject matter of instruction. A teacher may be more successful with his students if he is able to relate to them in philosophy of life, and, conversely, students may profit by learning something of a teacher’s views on general subjects. Academic freedom entails the exchange of ideas which promote education in its broadest sense.

The Woodstock brochure was not so offensive that its classroom use was obviously improper. The school board had not promulgated any standards against which plaintiffs could measure this type of literature to determine whether board policy forbade its use. The board points out that certain conduct patently exceeds “the bounds of the recognized standards of propriety” and a particular rule giving advance notice that it is forbidden is unnecessary. Wasilewski, supra, 14 Wis.2d at 257, 111 N.W.2d at 206. See also Shirck v. Thomas, 447 F.2d 1025, 1027 (7th Cir., 1971), vacated on other grounds, 408 U.S. 940, 92 S.Ct. 2848, 33 L.Ed.2d 764 (1972). However, the material in question does not fall into this category.

First, plaintiff’s experts in the field of education characterized the Woodstock pamphlet as suitable, even admirable, teaching material for eighth grade students. Whether or not this opinion be accepted, the classroom use of this work can hardly be considered “conduct, generally condemned by responsible men.” In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), reh. denied 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874 (concurring opinion). Second, the brochure is not obscene in the legal sense. The use of profanity does not transform the controversial into the obscene. See Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Fujishima v. Board of Education, supra note 2, 460 F.2d at 1359 n.7. Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973) described obscenity as limited to “works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” The bulk of the pamphlet consists of inoffensive factual accounts of the Woodstock festival. Even assuming the continuing validity of the variable obscenity doctrine, and making the widest allowances for the age of plaintiffs’ students, neither the brochure as a whole nor the poem “Getting Together” begin to satisfy the Miller criteria. See Jacobs, supra note 2, 490 F.2d at 610.

Whether the board could constitutionally have promulgated specific rules which would have prohibited the classroom use of this literature by eighth grade students is not the issue presented. I cannot conclude that these materials are so clearly improper as to justify the mid-term discharge of an instructor who elected to use them in his teaching.

I would reverse the district court’s summary judgment for defendants and remand for determination of the amount of back pay due plaintiffs as a result of their unlawful discharge.

Appendix to follow.

APPENDIX

ON REHEARING EN BANC

Before SWYGERT, Chief Judge, ENOCH, Senior Circuit Judge, and FAIRCHILD, CUMMINGS, PELL, STEVENS, SPRECHER and TONE, Circuit Judges.

ORDER

On consideration of the briefs and the arguments presented at the rehearing en banc, the judgment of the district court is affirmed by an equally divided vote.

      . Acid and Grass are words popularly employed to identify LSD and marijuana, respectively.

      . The school board’s Policy 3547 reads:
      “No material of any kind, whether or not bearing the imprint of a profit making organization, may be distributed by such organization, or any agent thereof, or any district employee, to students of the public school of this district, within the school, on school property, or at any district sponsored operation or function.
      “No material of any kind, supplied by any non-profit organization may be distributed by such organization, or any agent thereof, or any district employee, until the Superintendent of Schools has approved such distribution. The Superintendent’s decision shall be based on his judgment of the educational interests served in each individual case. Such decision will be reported to the Board of Education as informational items in its agenda.”
      Appellants Brubaker and Sievert testified that they were not aware of such policy. The Board was unable to prove the contrary.

      . The conclusion of their brief to this Court asks that:
      “the case [be] remanded to the district court for entry of a judgment in favor of plaintiffs with respect to the violation of their constitutional rights and for the granting of a trial with respect to their claim of defamation of character.”

      . Appellees present a preliminary procedural question asserting that the appeal by Clara Brubaker is not before us. The notice of appeal lists Clara 13. Brubaker, John W. Brubaker and Ronald K. ¡Sievert in their individual capacities as parties in this appeal. Relying on Rule 3(c), Federal Rules of Appellate Procedure, appellees argue . that because Clara died over one year before the appeal was taken, the notice should have stated that the appeal was being taken in the name of “John Brubaker, individually, and as representative of Clara Brubaker,” or words of like import.
      It may well be that given a narrow construction of Rule 3(c), we would have no jurisdiction to entertain Clara’s appeal. This view was adopted by the Ninth Circuit in Penwell v. Newland, 180 F.2d 551 (9th Cir. 1950). In that case, however, only one party was named in the notice of appeal, whereas in the present case, John Brubaker who is Clara’s personal representative by appointment of the Cook County, Illinois, Probate Court, is also a party. Her name is included in the notice of appeal. We believe that the estate of Clara Brubaker is a party to the appeal before us.

      . One of appellants’ arguments is that Judge Bauer’s August 21, 1972 dismissal of their claim on a motion for summary judgment was improper because Judge Will, on September 16, 1971, had refused to grant appellees’ motion for summary judgment. In Bowles v. Wilke, 175 F.2d 35, 37 (7th Cir.), cert. denied, 338 U.S. 861, 70 S.Ct. 104, 94 L.Ed. 528 (1949), this Court stated:
      “We think it beyond question that as to interlocutory orders entered in the District Court, the trial judge himself or any judge succeeding him in the disposition of a pending cause may vacate any such prior order. The only restraint upon a second judge in passing upon an interlocutory issue decided by another judge in the same case is one of comity only, which in no way infringes upon the power of the second judge to act.”
      Under the circumstances of this case, Judge Bauer did not act improperly in granting ap-pellees’ renewed motion to dismiss. A period of almost one year had elapsed between Judge Will’s and Judge Bauer’s rulings. It was during this period that the facts of the case were developed and the issues narrowed.

      . The Supreme Court recently noted, in the context of prisoner correspondence rights, the reciprocal nature of first amendment speech rights in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Similarly, academic freedom includes both the freedom of the student to hear as well as that of the teacher to speak.

      . The board relies in part on a provision in Ill.Rev.Stat. ch. 122, § 27-10 (1969) repealed effective Oct. 1, 1973 by P.A. 78-334, § 2:
      “The nature of alcoholic drinks and other narcotics and their effects on the human system shall be taught in connection with the various divisions of physiology and hygiene, as thoroughly as are other branches, in all schools under State control. I fail to see how this statute afforded an instructor any guidance whatsoever in determining whether a particular work which alludes to the use of alcohol and narcotics is suitable educational material.
      The board also refers to its policy no. 3547 which in effect prohibits the distribution of printed matter without its prior approval. This court has invalidated similar regulations for overbreadth. Jacobs v. Board of School Commissioners, 490 F.2d 601, 604-609 (7th Cir., 1973), cert. granted, 417 U.S. 929, 94 S.Ct. 2638, 41 L.Ed.2d 232. See also Fujishima v. Board of Education, 460 F.2d 1355 (7th Cir., 1972).

      . See, e. g., Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968).


source: Caselaw Access Project

author: GIBBONS, Circuit Judge.

license: Public Domain

text:
    Frank PHILLIPS, Sr., and Frank Phillips, Jr., by his natural guardian, Frank Phillips, Sr., Appellants, v. Fred A. TRELLO et al.
    No. 74-1012.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) June 13, 1974.
    Decided July 26, 1974.

      James C. Evans, Pittsburgh, Pa., for appellants.
    Ronald P. Koerner, Gatz, Cohen, Segal & Koerner, Pittsburgh, Pa., for Orsini, Lucenti, Fiasco & Spatara.
    Carmen R. Damian, Damian & Damian, Pittsburgh, Pa., for Trello.
    Albert G. Feczko, Jr., Feczko & Seymour, Pittsburgh, Pa., for Harvard & Casasanta.
    Submitted Under Third Circuit Rule 12(6)
    June 13, 1974
    Before STALEY, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from an order of the district court which granted a Rule 12(b)(6) motion by two of seven defendants to dismiss for failure to state a cause of action against them. The plaintiffs, residents of Coraopolis, Pennsylvania, alleging jurisdiction under 28 U.S.C. § 1343 and claims under 42 U.S. C. §§ 1983 and 1985, sued a councilman of Coraopolis, four local police officers, and the two appellees, Dora Harvard and Mary Casasanta, charging all defendants with a conspiracy to cause various police and other regulatory authorities of Cor-aopolis Borough to carry on a campaign of illegal harassment against the plaintiffs.- The complaint alleges:

“7. The defendants did conspire to commit and did commit the acts set forth hereinafter in concert with each other and/or with others.
8. The defendants did commit the acts set forth hereinafter in concert with each other and/or with others.
9. The acts set forth hereinafter did subject or cause to be subjected the plaintiff to the deprivation of his rights, privileges and immunities secured by the Constitution and the laws.”

It then goes on to allege the series of claimed harassments quoted in the margin and alleges personal and business injuries including the expenditure of large sums of money to provide legal services in defense of the groundless criminal actions brought against him and his son. The order granting the Rule 12(b)(6) motion by defendants Harvard and Casasanta provides in full:

“And now, this 2nd day of March, 1973, upon consideration of motions of defendant Dora Harvard and Mary Casasanta to dismiss as to them, and of briefs in support thereof and in opposition thereto, and it appearing that said defendants are housewives and residents of Coraopolis, and that nothing is alleged against them except exercising their constitutional rights of petitioning their borough council for redress of grievances and of writing letters for newspaper publication [see Eastern R. R. Presidents Conference v. Noerr Motor Freight Inc., 365 U.S. 127, 135, 136, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); N. Y. Times v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)]; and it also appearing that said defendants are private citizens and that no State action is involved insofar as they are concerned ;
It is ordered that said motions be and it hereby is granted, and the above-styled action be and it hereby is dismissed as to said defendants.” Appendix at 33a-34a.

We reverse.

I.

There is no doctrine that housewives or residents of Coraopolis are immune from suit.

II.

The complaint certainly alleges more than the facts that Harvard and Casa-santa petitioned the borough council for redress of grievances and wrote letters for publication in newspapers. It alleges that all the defendants, the above included, acting in concert, conspired to commit the acts set forth in paragraph 10 of the complaint.

III.

The complaint sufficiently sets forth a cause of action under the Civil Rights Acts to survive a Rule 12(b)(6) motion.

A. The § 1988 cause of action

An action based upon § 1983 involves two distinct elements. First, the plaintiff must assert a deprivation of rights, privileges and immunities secured by the Constitution and laws. Next an assertion must be made that the defendants acted “under color of” state law. The appellees do not seriously contest that the charge of conspiracy to subject a citizen to such acts of improper harassment as illegal searches in violation of the fourth amendment is insufficient to satisfy the first element of a § 1983 action. They contend, however, that since they are citizens holding no official capacity, they cannot be regarded as having acted “under color of” state law. But the law has long been settled that when two or more persons conspire to violate the civil rights ,of another, if one or more of the conspirators is a state officer acting under color of state law, then the mere fact that other conspirators are not state officers is no defense to them in a suit under the Civil Rights Act. E. g., Adickes v. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Gillibeau v. City of Richmond, 417 F.2d 426, 439 (9th Cir. 1969); Hoffman v. Halden, 268 F.2d 280, 298 (9th Cir. 1959); Valle v. Stengel, 176 F.2d 697, 702 (3d Cir. 1949); Picking v. Pennsylvania R. R. Co., 151 F.2d 240, 249-250 (3d Cir. 1945). Thus the district court’s stated reason for dismissing, “that no State action is involved insofar as they are concerned” must be rejected.

B. The § 1985 cause of action

Moreover, the complaint relies on § 1985. In Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Supreme Court held that action “under color of state law” is not an element of a § 1985(3) cause of action. That section makes actionable private conspiracies to deprive a citizen of the equal enjoyment of rights secured to all. Griffin v. Breckenridge overruled Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), which had held that § 1985(3) did not reach the conspiracy alleged because it was private and not under color of state law. Since the plaintiffs in Griffin v. Breckenridge were Negro citizens of Mississippi and charged harassment on racial grounds, the Court expressly reserved the question whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable under § 1985(3). 403 U.S. at 102 n. 9, 91 S.Ct. 1790. Since then the task of defining the scope of the private conspiracy cause of action under § 1985(3) has been going forward in the lower federal courts. See Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973); Denman v. Leedy, 479 F.2d 1097 (6th Cir. 1973); Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973); Hughes v. Ranger Fuel Corp., 467 F.2d 6 (4th Cir. 1972); Azar v. Conley, 456 F.2d 1382 (6th Cir. 1972); McCurdy v. Steele, 353 F.Supp. 629 (D. Utah 1973).

Section 1985(3) was enacted as a part of the Civil Rights Act of 1871 and thus draws vitality from the fourteenth amendment as well as the thirteenth. As Judge Stevens explains:

“With respect to plaintiff’s protected interests, the language of §§ 1983 and 1985(3) also differs, but the coverage of the two provisions is probably co-extensive. Thus, the state involvement aspects of § 1983 cases which are directed to the ‘protected interests’ rather than the ‘proscribed conduct’ portion of § 1983 are relevant in understanding the coverage of § 1985(3).” Dombrowski v. Dowling, 459 F.2d 190, 194-195 (7th Cir. 1972). (footnote omitted).

Azar v. Conley, supra, is particularly enlightening since it recognizes a § 1985(3) cause of action on behalf of white plaintiffs based on allegations quite similar to those before us. 456 F. 2d at 1386.

Because settled law under § 1983 compels a reversal of the Rule 12(b)(6) dismissal, we think it premature to rule definitively upon appellants’ contention that the complaint adequately charges a § 1985(3) private conspiracy cause of action. We do suggest that the district court must consider that contention in the light of Griffin v. Breckenridge, supra, if as the facts develop only a private conspiracy not within the coverage of § 1983 should be proved. It may be that a private conspiracy to cause unlawful harassment by state enforcement officials which never succeeded to the point where action “under color of state law” occurred could nevertheless cause recoverable damage. We reiterate that our discussion of § 1985(3) is intended only to raise the issue for the district court’s initial consideration.

C. The defamation allegations

Paragraph 10(q) of the complaint refers to a libelous letter, and paragraph 10 (r) refers to the circulation of petitions directed at instigating efforts to have the police “run the plaintiff out of town.” The district court treated these paragraphs as allegations of activities protected by the first amendment. They may nevertheless be taken into consideration in evaluating the conspiracy allegation. See Azar v. Conley, 456 F.2d at 1390. Moreover, the plaintiff alleges that he has been personally slandered and libeled to the detriment of himself and his business. To the extent that the. allegations of the complaint set forth a cause of action arising under the defamation laws of the Commonwealth of Pennsylvania, since the libels and slander are claimed to arise out of the § 1983 conspiracy, the district court may undertake pendant jurisdiction over them. Hagens v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (U.S. March 26, 1974); Rosado v. Wyman, 397 U.S. 397, 402-405, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); United Mine Workers v. Gibbs, 383 U.S. 715, 721-729, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

The judgment of the district court will be reversed and the cause remanded for further proceedings consistent with this opinion.

      . The ease was before us on October 24, 1973 at which time we dismissed for lack of jurisdiction because there was, with respect to the order appealed from, no Rule 54(b) determination. Our order provided: “If the TRule 54(b)! determination and direction are made, a new appeal may come before us on the present briefs and record supplemented to show subsequent proceedings.” Thereafter a Rule 54(b) determination and order was made.

      . Paragraph 30 of the complaint provides in full:
      “The acts committed against the plaintiff under color of statutes, ordinances, regulations, customs or usages of the Commonwealth of Pennsylvania, County of Allegheny and Borough of Coraopolis were:
      (a) The Fire Marshal of Coraopolis Borough, Eugene Zapparelli, did enter the buildings of plaintiff, Frank Phillips, Sr., on or about August 2, 1971 and did examine the same and again on August 16, 1971, along with the defendants, Fred A. Trello, Louis Lucenti, and .Tames Spatara. On August IS, 3971, a letter was sent to the jdaintiff wrongfully citing some 35 violations of rules established by the Fire Marshal in concert with others under Borough Ordinance No. 3225 to be specifically used against the plaintiff. The regulations were contrary to the law and were in conflict with the powers exercised by the State of Pennsylvania. Neither the Fire Marshal nor anyone else pursued the remedy set out under the Ordinance so as to permit the plaintiff an opportunity to test the validity of the action of the Fire Marshall [sic] in the Courts.
      (b) The defendant, Louis Lucenti, went upon the resident premises of the plaintiff and specifically into his garage located thereon on or about August 2, 1971 without a warrant and illegally, ostensibly to examine a motor bike located therein. No legal proceeding in the courts were brought by the officer concerning the motor bike.
      (c) The defendant, Fred A. Trello, did arrive at the commercial buildings of the plaintiff with the Borough police chief and two Allegheny County Health Department authorities or on about August 10, 1971 and did make inspéctions of the buildings. Defendant, Fred A. Trello, also acted as an employee of Allegheny County at this time, in addition to his other capacities as set forth hereinbefore. No legal proceedings were brought by any of the County employees concerning this inspection. At this time defendant Fred A. Trello, did slander Frank Phillips, Sr. by accusing him of acting like a god and thinking he could not be touched and also stating that he .would see him (Frank Phillips, Sr.) put out of commission and would see him in court.
      (d) An unknown County employee came to the commercial buildings of the plaintiff on August 11, 1971 and did ask to inspect Ms restaurant license and all of the buildings. The only restaurant license in any of the buildings was issued in the name of the tenant of the plaintiff. No legal proceedings were brought by this employee as a result of this inspection.
      (e) The defendant, Louis Lucenti, did on August 12, 1971 illegally and wilfully place a municipal ordinance violation tag upon a truck owned by plaintiff even though said truck was placed in a position approved by the Mayor of the Borough and was then being loaded with furniture from one of the commercial buildings of the plaintiff. No legal proceeding was brought by anyone concerning this ticket.
      (f) The defendants, Louis Lucenti and Gerald Orsini, did illegally and wilfully issue two (2) citations against Frank Phillips, Jr., one for parking on the sidewalk and one for parking on the highway in violation of the laws of the Commonwealth of Pennsylvania on August 12, 1971. The truck had been placed as is set forth in paragraph (e), above, and had been tagged as is set out above. The truck was also being loaded as set out above. These two citations did result in legal proceedings and the Common Pleas Court of Allegheny County did find Frank Phillips, Jr. not guilty of violating the laws of the Commonwealth of Pennsylvania.
      (g) The defendant, Louis Lucenti, after tagging the truck as set out above on August 12, 1971, did call defendant, Gerald Or-sini, and upon arrival, Gerald Orsini asked the plaintiff to move the truck and was informed that he would move the truck when the loading was complete. About 15 minutes later, Frank Phillips, Jr. started to move said truck when Gerald Orsini, defendant, stopped him, demanding the owner and operator cards. When Frank Phillips, Sr. went to give the owner’s card which he had in his possession, he was struck by Officer Orsini with a blackjack and pushed and shoved by both defendants, Louis Lucenti and Gerald Orsini. When Frank Phillips, Jr. went to shield his father, he was also struck with a blackjack by Officer Orsini. A neighbor of the plaintiffs was also struck by the blackjack of Officer Orsini. The plaintiffs, as well as the neighbor, were taken to the police station, booked, placed in cells and held until bond was put up for the release of the two adults, Frank Phillips, Jr., being taken from a cell to Juvenile Court and there released into the custody of his parents after a petition was filed against him.
      (h) The charges brought against Frank Phillips, Sr. were assault and battery of the two officer-defendants, resisting arrest and obstructing the two officer-defendants in making the lawful arrest of Frank Phillips, Jr. The Criminal Court Division of the Allegheny County Common. Pleas Court did throw out the charges of resisting arrest and obstructing the two police officer-defendants in making the lawful arrest of Frank Phillips, Jr. The jury found the plaintiff not guilty of assault and battery of the two police officer-defendants.
      (i) The charges brought against Frank Phillips, Jr. were assault and battery of the two officer-defendants, resisting arrest and obstructing two officer-defendants in process. Just prior to the hearing in Juvenile Court, Fred A. Trello, defendant, did approach the Juvenile Court judge in his chambers describing himself as the chairman of Public Safety in Coraopolis for the purpose of influencing the Court, said approach being made out of the presence of Frank Phillips, Jr. and his attorney. The final order of the Juvenile Court was dismissal of all charges against Frank Phillips, Jr.
      (j) The defendants, Fred A. Trello and Gerald Orsini, along with two other council members and the Fire Marshall, did on or about September 9, 1971 arrive at the commercial buildings of the plaintiff and did inspect them. No proceeding was taken as a result of this inspection.
      (k) At the request and urging of the defendant, Fred A. Trello, an employee of the Department of Labor and Industry, one Mr. Bulgarelli, did arrive at the commercial buildings of the plaintiff and did inspect them on or about September 10, 1971. On or about September 13, 1971, one Michael T. Kistler, Supervisor of the Pittsburgh Office of the Bureau of Inspection of the Department of Labor and Industry, did send a letter to plaintiff listing some 20 violations of the Building Regulations of the Commonwealth of Pennsylvania. Some of these alleged violations involved buildings which had been in existence for some 6 to 10 years during which time they had been visited by the Labor and Industry Department of Inspection, one such inspector being the same Eugene Zapparelli, the Fire Marshall [sic] of Coraopolis Borough and these buildings had been approved for occupation. Some of the requests made were contrary to the facts and requirements of the law and regulations. The plaintiff was given 90 days to comply with the request in accordance with this letter.
      (l) The aforesaid Michael T. Kistler, at the urging and request of Fred A. Trello, on or about September 15, 1971 or some two days after the letter set forth in paragraph (k), above, did send another letter rescinding the order of September 13, 1971, and demanding the termination of the occupancy of all except the ground floors of the building immediately, as well as making other requests, some of which were contrary to the fact and requirements of the law and regulations.
      (m) The same Michael T. Kistler, at the urging and request of Fred A. Trello, did send another letter stating that he had visited the commercial buildings of the plaintiff on September 14, 1971 and found that the order of September 15, 1971 had not been complied with and gave the plaintiff 5 days to comply or be faced with penal action. The plaintiff did appeal this action taken by Michael T. Kistler in accordance with the laws, rules and regulations of the Commonwealth of Pennsylvania.
      (n) The defendant, Rudy Fiasco, did cause to have sent to the plaintiff on or about October 8, 1971 an official notice to appear before a Justice of the Peace to answer a complaint by Officer Fiasco that the plaintiff’s automobile had been parked illegally on September 30, 1971 in that the back wheel was some 15 inches from the curb and the front wheel was against the curb. This complaint was not properly sworn to and was contrary to the law and the complaint was dismissed by the Court of Common Pleas of Allegheny County.
      (o) The defendant, Fred A. Trello, was quoted by a newspaper on October 14, 1971, such quote having been made during a meeting of council of the Borough of Coraopolis, that he would appeal the delay in the closing down of the plaintiff’s business which delay had been condemned by the defendant, Dora Harvard, in the same council meeting. This ‘delay’ is permitted under the laws of the Commonwealth of Pennsylvania in accordance with procedures established under such laws. The appeal stated by defendant, Fred A. Trello, was to be made to a politician with the intent to circumvent and deprive the plaintiff of his rights under the law.
      (p) The plaintiff did receive an official notice to appear before a Justice of the Peace to answer the complaint of the defendant, James Spatara, such notice being sent on or about November 6, 1971. The alleged violation was of a pick-up truck of the plaintiff being parked in violation of the laws of the Commonwealth of Pennsylvania on October 30, 1971. After a hearing on this charge, the Court of Common Pleas of Allegheny County did find the plaintiff not guilty of the charge.
      (q) The defendant, Dora Harvard, on or about August 18, 1971, did send a letter to the newspaper ‘The Record’, for the purpose of it being published and it was published. The defendant, Dora Harvard, did wrongfully accuse the plaintiff of assaulting a police officer and indicating that it had occurred on prior occasions also, of defying the police, of not being a respectable merchant, of violating laws and having an immunity because of officials in the community and of wrongfully stating that some unknown policeman had told her that he had orders to not bother the plaintiff. The defendant, Dora Harvard, further wrongfully accused the plaintiff of having an immunity from the law because of a financial interest in his commercial properties being held by some unnamed leader of the town. She also wrongfully accused the plaintiff of throwing trash into the street and not paying like the rest of the town folks for the trash and garbage collections. The purpose of this libelous letter was to give an excuse to the police and other officials of the Borough and the State to deprive the plaintiff of his rights, privileges and immunities secured by the Constitution and the laws.
      (r) The defendants, Dora Harvard and Mary Casasanta, did on or about September 15, 1971 have prepared and circulated a petition or petitions directed against the plaintiff and made oral statements about helping the police and other officials to run the plaintiff out of town for the purpose of influencing the police and other officials of the Borough to act under color of statutes, ordinances, regulations, customs or usages of the Commonwealth of Pennsylvania, County of Allegheny and Borough of Coraopolis to deprive the plaintiff of his rights, privileges and immunities secured by the Constitution and laws.
      (s) Defendants, Dora Harvard and Mary Casasanta, on or about October 4, 1971 did have prepared and circulated certain notices of a meeting in the Borough Building to be held on October 14, 1971 for the purposes of showing the backing of the police in their actions against the plaintiff so as to deprive the plaintiff of his rights, privileges immunities secured by. the Constitution and the laws.
      (t) The defendant, Fred A. Trello, caused to have information sent on or about September '15, 1971 to Nationwide Insurance Company upon which Nationwide Insurance Company relied and as a result, on September 17, 1971 did cancel the policies of insurance on the commercial buildings of the plaintiff to be effective 10 days after the receipt of the notice by the plaintiff. The information was false and the buildings had been in existence and covered by the Nationwide Insurance policies for a considerable period of time having been inspected and approved by Nationwide Insurance Company during this time and the conditions existing during this time being the same.” Appendix at 5a-13a.