concurring and dissenting:
I concur in the denial of damages, but for reasons that differ from those expressed by my brothers. I dissent from the affirmance of the reinstatement order.
I agree there should be a qualified immunity for members of school boards sued in their official capacities from claims for damages. I do not agree that there is any such immunity from awards of back pay incident to the equitable remedy of reinstatement.
I think that reinstatement is wholly inappropriate and unwarranted in these cases and that the claims, while measured by lost pay, as in Monell, are claims for damages from which the qualified immunity is present.
I do not think that Mrs. Paxman has any constitutional claim for any relief.
I.
As long ago as Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966), it appears to me to have been settled that when reinstatement was an appropriate equitable remedy, the related remedy of a back pay award was available. That was the decision of a unanimous en banc court, and, until now, it has been consistently followed and applied in suits against defendants sued in their official capacities as shown by the cases cited in the opinion of Judge Winter.
Of course, we can depart from the rule established for this court by our en banc decision in 1966 if the Supreme Court, in *862effect, has directed us to do it. I do not read Monell as having done that.
Monell did not involve a claim for reinstatement, as recognized in Judge Widener’s opinion. Though measured by lost wages, it was simply a claim for damages, as is clearly and explicitly stated in the last paragraph of Judge Gurfein’s opinion. Monell v. Dept. of Soc. Services, 532 F.2d 259, 267 (2d Cir. 1976). In the Supreme Court, the opinions are not so explicit in characterizing the claim. We know from an opinion from the Second Circuit what it was, however, and it is perfectly apparent that the Supreme Court in Monell was not wrestling with a problem of a back pay remedy in the context of a valid claim for reinstatement. Hence, I cannot read Monell as saying that this court was wrong in its earlier cases differentiating between legal and equitable remedies and treating a back pay claim as an equitable one when sought in conjunction with a valid claim for reinstatement.
The thrust of Monell was to enlarge the remedies available to plaintiffs such as these when suing officials such as these school board members in their official capacities. It struck down what theretofore had been thought an absolute immunity. That thrust seems to be quite inconsistent with a reading that the Supreme Court, in passing, proscribed a remedy which theretofore had been thought generally available.
Thus, if there were a valid claim for reinstatement here, I think that lost back pay should also have been awarded.
II.
This is not a case in which reinstatement is appropriate, however. The Supreme Court, in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), found unconstitutional maternity leave regulations requiring termination of the teacher’s employment at a fixed time preceding the expected date of delivery. Such a regulation was said to impermissibly burden a teacher’s decision to bear children and to set up an irrebuttable presumption that, after so many months of pregnancy, a teacher was physically unable to continue teaching.
The two school boards had attempted to justify their pregnancy employment termination regulations on the basis of, among other things, service of the interest in continuity of instruction. Each of the school teachers in LaFleur, however, had discovered her pregnancy only after commencement of the school year, and the termination of her employment was scheduled to occur within that school year. Of course, the Supreme Court effectively demonstrated that the longer period of teaching by the pregnant teacher would serve the interest of continuity in instruction substantially better than the school board’s rules.
In LaFleur, the Supreme Court also considered post-delivery maternity leave rules. The Cleveland rules provided that, after delivery of her baby, the young mother might request a return to service provided it were done in writing at least six weeks before the beginning of a semester. She was not assured reemployment, but the rule provided for priority in reassignment to a vacancy for which the teacher was qualified. As Cleveland’s rule, Chesterfield County’s rule required proof of physical fitness. It also required assurance that the child’s care would no more than minimally interfere with job responsibility. It, however, guaranteed reemployment no later than the first day of the school year following declaration of the teacher’s eligibility for reemployment.
These reemployment rules were upheld under constitutional scrutiny. Cleveland had a provision that a teacher could not request reassignment until her baby was three months old. That provision was stricken, but the rest of the two sets of rules were held proper and enforceable. In this case, Albemarle County’s rule simply provided for a return from pregnancy leave at a time mutually acceptable to the teacher and the administration. That seems as much of a commitment to the teacher as Cleveland’s provision for priority in reassignment at the commencement of a semester at least six weeks after the request for reassignment. Henrico County’s regulation *863simply provided for the lapse of a period of sixty days after the birth before the teacher could be recontracted, the sixty day provision being invalid under LaFleur. It required a medical statement of the teacher’s physical fitness. As in Cleveland’s rule, the rules have contained no explicit guarantee of reemployment, but reemployment was clearly the contemplation of the rules of both the school districts involved in this case.
There is in this case no showing of any failure to comply with any reemployment commitment. Neither teacher sought post-birth reemployment, and neither was wrongly denied it. Under these circumstances, “reinstatement” to a position never sought seems entirely inappropriate.
If we are now to hold that there is any constitutional right to reemployment, beyond the state law right to enforcement of the reemployment rules according to their reasonable intendment, we will be forging new ground in a case in which it has not been overtly asserted, argued or considered.1 If we are to hold that a childbearing mother has a constitutional entitlement to reemployment after delivery of her child, it should be done only after careful consideration upon a record, containing findings of fact, which reasonably presents the question for consideration. There is no such record here. There being no showing of a violation of a constitutional right to reemployment, there was no showing of a right to reinstatement.
Since the claim for lost pay is not pendant to any claim for reinstatement, the qualified immunity defense should be avail-, able.
III.
As to the measure of the qualified immunity, I find myself in general agreement with the opinion of Judge Phillips.
There is substantially less reason for a qualified immunity for members of a school board sued in their official capacities than there is when they are sued in their individual capacities. Subjective good faith may be the appropriate standard in the latter situation, but something more ought to be requisite in the former. There can be subjective good faith in the presence of unreasonableness and even foolishness. When defendants are sued in their official capacities, the standard should be one of good faith coupled with a standard of reasonableness which may include the performance of reasonable steps to obtain information and advice upon which to make an informed judgment. That is not to say, however, that every wrong negligently inflicted by a municipal official is converted into a constitutional violation. The constitutional violation should be apparent before the problem of qualified immunity arises. Only then need one consider the possible difference between the qualified immunity available to a defendant sued in his individual capacity and that available to a defendant sued in his official capacity.
After Judge Phillips had prepared his opinion, a new issue of the Columbia Law Review was distributed. In it there is an article2 by an attorney for the plaintiffs in Monell, who is a lecturer in law at Columbia, in which he advocates just such an immunity, based upon tort principles as suggested by Judge Phillips, for municipalities and members of their governing bodies when sued in their official capacities.
He suggests three exceptions to the qualified immunity rule. He would not allow it at all to the extent the municipality had been enriched by its violation of the Constitution or when the constitutional violation was also a clear violation of local law. He would create an absolute immunity if the constitutional violation arose out of an affirmative action program designed and op*864erated in a good faith effort to conform to what was perceived to be the requirements of the Constitution. Of course, we are here concerned with no such possible exceptions, and I need not consider whether any one of the three should be recognized. I would embrace the basic principle that the immunity problem respecting municipalities and their officials should be approached in terms of tort principles after a determination, without resort to such principles, that there has been a deprivation of a constitutional right.
IV.
I think Mrs. Paxman had no constitutional claim.
In the spring of the year she signed an employment contract for the next year, and she became aware of her pregnancy a few days later. She notified the school board, and weeks before the beginning of the new school year she was informed that her employment was to be terminated and that she would be replaced by a teacher who could be expected to teach through all of the next school year.
For a teacher known to be pregnant before the start of a school year, the Albe-marle rule expressly provided for immediate termination. In LaFleur the Supreme Court recognized the importance of continuity in instruction. School boards may reasonably believe that the interest of the children is furthered by beginning the school year with a faculty each of whom may be expected to teach throughout the school year. When a teacher discovers her pregnancy only after the school year has commenced, there is inevitable discontinuity, and the only question addressed by the Supreme Court in LaFleur is the right of the teacher in that context to determine when the discontinuity will be experienced. I can find nothing in LaFleur to suggest that continuity of employment of a teacher of children cannot be considered by a school board and carry the day in favor of employment of some one else when the pregnancy is known well before the school year commences. Hence, I would hold that Mrs. Paxman suffered no constitutional wrong.
V.
Even under my view, the declaratory relief granted was enough to make the plaintiffs prevailing parties. I agree that their lawyers are entitled to allowance of attorneys’ fees. An award of $500 seems to me quite inadequate. I would remand to the District Court with instructions, after consideration of all relevant factors, to determine and allow a reasonable fee.
. There was no discussion of this matter in the district court’s opinion. In its final, formal order, reinstatement was directed with the payment of lost wages as if employment was, or should have been, continuous. Of course, there is no basis for an assumption that a childbearing mother would have a continuing availability.
. Schnapper, Civil Rights Litigation After Mo-nell, 79 Col.L.Rev., 213, 240 et seq.