Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 C 3588--Ann Claire Williams, Judge.
Walter J. Cummings, John L. Coffey, and Frank H. Easterbrook, Circuit Judges.
EASTERBROOK, Circuit Judge.
Dorothy Stevens was the principal of Mollison Elementary School in Chicago between 1962, when it opened, and 1981. Her career at Mollison ended unpleasantly. In December 1980 Dorothy Tillman was elected president of the Mollison School Local Advisory Council, a parent-teacher association sponsored by Chicago's Board of Education. Tillman launched the Council on a crusade to remove Stevens as principal. Tillman and supporters occupied Stevens's office at the school for three days running and served her with an "eviction notice"; they organized a boycott that (they claimed) kept more than 80% of the students out of school; they distributed handbills, picketed the school, and delivered tirades against Stevens at meetings of the Board of Education. In the spring of 1981 Stevens took five months' paid leave and was replaced as principal by Edith Dervin, whereupon the Local Advisory Council declared victory. When she returned to Chicago from her recuperation in Florida, Stevens was posted to another elementary school as principal. Tillman, by then a well-known figure, was elected to Chicago's City Council; Stevens retired at age 65 in 1985.
This case presents a claim under 42 U.S.C. § 1985(3) and two pendent claims under state law, defamation being the leading one. We shall need to decide some difficult questions concerning the difference between "facts" and "opinions" in the law of defamation and the scope of liability under § 1985(3) for conspiracies that violate state but not federal law.
The sit-in was illegal as trespass, and the boycott was a violation of the state's mandatory-attendance laws. Although the police arrested the parents for trespass in order to clear Stevens's office, the state's attorney chose not to prosecute them, and Stevens is not entitled to enforce these laws herself. The sit-in, during which Stevens was placed in fear for her person, was most likely an assault under Illinois law. An episode in which Tillman, backed by a crowd, shouted "Get her out of here or we are going to come and get her. We are going to come and get her ourselves" would put many a person in fear. For reasons she has kept to herself, Stevens chose not to complain about this; instead she filed suit under 42 U.S.C. § 1985(3). Stevens is white. Tillman and her aides, like almost all of the students at Mollison, are black, as is Edith Dervin. Stevens contends that Tillman campaigned to get rid of her on the basis of race, which Stevens believes violates § 1985(3) because in the process Tillman violated rights secured by state law. Tillman insists, to the contrary, that Stevens was dictatorial, condescending, and ineffectual; defects in her performance, and not her race, were the basis of the campaign against her. This attack on Stevens's fitness for her position led Stevens to present two state-law claims under the court's pendent jurisdiction: defamation and inducement to breach of contract.
During the pretrial proceedings, the district court held that all three claims presented triable issues. 568 F. Supp. 289 (N.D. Ill. 1983), modified in part by order of November 2, 1984. The § 1985(3) claim is sufficient, the court believed, because it alleges that the defendants (Tillman and other members of the Local Advisory Council) conspired on racial grounds to influence the Board of Education, a governmental body. The libel and inducement claims, the court thought, depend on factual issues that only a jury may resolve. Before the trial got under way, the case was assigned to another judge, who took a different view of things.
After Stevens had presented her case to the jury, the court granted judgment for the defendants on the inducement count under Fed. R. Civ. P. 50(a), finding that the Board of Education had not broken its contract with Stevens, so that the defendants could not be liable for inducing a breach. 661 F. Supp. 702, 712-13 (N.D. Ill. 1986). The court pared back the number of statements the jury would be allowed to consider under the defamation claim, holding that some were not clearly "of and concerning" Stevens and that most of the others to which Stevens objected are constitutionally protected as opinion. Id. at 708-11. And although the court allowed the trial of the § 1985(3) claim to continue, id. at 705-07, it concluded that only proof of violent or unlawful acts would be sufficient to make out a case; to the extent the § 1985(3) claim rested on public statements and lobbying, the constitutional right to petition the government for redress of grievances prevented liability. Even this allowance was withdrawn at the end of the defendants' case, when the court dismissed the § 1985(3) claim after concluding that Stevens had not been deprived of a federally-protected right.
Nine potentially-defamatory statements went to the jury, which was instructed that it could return a verdict for Stevens only if it concluded that the statement is false and that clear and convincing evidence shows that the speaker knew the statement to be false or acted with reckless disregard for the truth. The jury returned special verdicts answering, statement-by-statement, whether the speech is false; if it is, whether clear and convincing evidence showed that the defendant knew of its falsity or was reckless; if it is false and the speaker acted with the necessary scienter, whether Stevens suffered damages; and, if so, the damages attributable to that statement.
The jury found that at a public meeting of the Board of Education, Tillman made these false statements:
One child [in the entire school, covering grades K-8] was doing math at a sixth grade level and he was an eighth grade student, and the rest was below.
She [Stevens] called all the parents a bunch of welfare mothers, a bunch of welfare children.
One reason we were able to have an eighty-five to ninety percent effective boycott is because nine out of ten mothers in that school have been told by Miss Stevens that their child needs psychological, not to mention some of the other things that she told them.
We have teachers put in the wrong places. That's one of the reason our children are not learning.
The jury also found that Tillman and six other members of the Local Advisory Council prepared and circulated a handbill containing these false statements:
Her testing system was not working, yet she would not change it.
The results are: only one child doing math on sixth grade level; and the majority of students are reading below grade level.
The evidence showed that 93% of Mollison's students were reading below their expected level--worse than the norm in Chicago for schools in poor neighborhoods--but not that only one student in the school was up to 6th grade level in math. Although the jury found that these six statements are false, it also answered the question "do you find that there is clear and convincing evidence that the defendant knew the statement to be false when made or acted with reckless disregard for the truth when making that statement?" with "No" for all six.
The judge gave the jury two other statements from the handbill:
As of today, only half of the students have been tested this year for their levels.
Miss Stevens told several reporters that most of Mollison's parents are on ADC.
The jury found that these statements are true. This left one statement, which Tillman made at the ...