                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1883

                         TOBY KLANG WARD,

                      Plaintiff, Appellant,

                                v.

                      CAROL HICKEY, ET AL.,

                      Defendants, Appellees.

                                           

No. 92-2240

                         TOBY KLANG WARD,

                       Plaintiff, Appellee,

                                v.

                     CAROL A. HICKEY, ET AL.,

                      Defendants, Appellees.

                                           

           THE SCHOOL COMMITTEE OF THE TOWN OF BELMONT,

                      Defendant, Appellant.

                                           

No. 92-2241

                         TOBY KLANG WARD,

                       Plaintiff, Appellee,

                                v.

                     CAROL A. HICKEY, ET AL.,

                     Defendants, Appellants.

                                           

 No. 92-2271

                         TOBY KLANG WARD,

                      Plaintiff, Appellant,

                                v.

                      CAROL HICKEY, ET AL.,

                      Defendants, Appellees.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Robert E. Keeton, U.S. District Judge]
                                                      

                                           

                              Before

               Torruella and Stahl, Circuit Judges,
                                                  

                and Burns,1 Senior District Judge.
                                                 

                                           

     Americo  A. Salini,  Jr., with  whom Massachusetts  Teachers
                                                                 
Association, was on brief for plaintiff Toby Klang Ward.
           
     Andrew J. McElaney, Jr.,  with whom John M.  Griffin, Daniel
                                                                 
R.  Harris, and  Nutter,  McClennen &amp;  Fish,  were on  brief  for
                                           
defendants Carol A. Hickey and Mary N. Tinkham.
     David  C.  Hawkins,  with  whom  Robert  J.  Morrissey,  and
                                                           
Morrissey  &amp; Hawkins, were on  brief for the  School Committee of
                    
the Town of Belmont.

                                           

                          June 15, 1993
                                           

                    

1  Of the District of Oregon, sitting by designation.

          TORRUELLA,  Circuit   Judge.     Toby  Klang   Ward,  a
                                     

nontenured biology  teacher in the Belmont,  Massachusetts public

schools, sued the  School Committee  of the Town  of Belmont  and

three members of  the Committee as  individuals for violation  of

her  First Amendment rights  by the  Committee's decision  not to

reappoint her on the basis of a classroom discussion.  Defendants

Mary Tinkham, Carol Hickey, and the late Margaret Gibson cast the

deciding votes against  Ward's reappointment.  Based on  a jury's

answers to various special  questions, the district court entered

judgment  in  favor   of  defendants,   but  denied   defendants'

subsequent request for  attorneys' fees.  We  affirm the district

court's  judgment, albeit on different grounds.   In addition, we

affirm part of the  attorneys' fees judgment and remand  the rest

for a  determination  of whether  any  of Ward's  litigation  was

frivolous.

                            BACKGROUND
                                      

          The dispute arose  out of a discussion in  Ward's ninth

grade  biology  class  concerning  abortion  of  Down's  Syndrome

fetuses.1  Defendant  Tinkham learned of  this discussion from  a

parent of a student in that class.

          In  June 1982,  the  School Committee  voted on  Ward's

reappointment  for the  1982-83 school  year.   A  favorable vote

would  have granted Ward  tenure.  By  a deadlocked vote  of 3-3,

                    

1     Some  controversy  also  transpired   over  Ward's  alleged
discussion of  Proposition  2 1/2,  a  Massachusetts  referendum.
However, the jury found  that none of the defendants'  votes were
motivated by that  discussion, and  Ward did not  appeal on  that
issue.  We therefore leave it out of our analysis. 

                               -3-

however, the School Committee decided to deny reappointment.

          As a result of this decision, Ward sued, alleging:  (1)

defendants  retaliated  against her  for  discussing  abortion by

voting against  her  reappointment; (2)  defendants conspired  to

deny her constitutional rights by deciding not to rehire her; (3)

defendants acted arbitrarily and capriciously in violation of the

Fourteenth  Amendment; and  (4) defendants  wrongfully terminated

her in violation of the School Committee's internal policies.  On

November 16,  1989, a  magistrate recommended  that the  district

court  dismiss Ward's complaint for failure to state a claim, but

grant  Ward leave  to  amend her  complaint  to include  a  First

Amendment   "failure-to-forewarn"  claim.     According   to  the

magistrate, Ward had  a constitutional right  to notice that  her

discussion was prohibited before the School Board could retaliate

against  her  for  that discussion.    On  August  31, 1990,  the

district court adopted the magistrate's recommendation, dismissed

the complaint, and granted the requested leave to amend.

          Subsequently,  Ward filed  a  second amended  complaint

alleging the violation  suggested by the  magistrate.  The  court

denied defendants' motion to dismiss  with respect to that claim,

but  granted  it  to the  extent  that  the  complaint alleged  a

violation  of a  First Amendment  right to  discuss controversial

issues  in a high school  class.  Ward  voluntarily dismissed her

claim against Gibson after Gibson's death on January 3, 1991.

          Ultimately, the case went to a jury in  two phases.  At

the end of Phase I, the court  asked the jury for verdicts on six

                               -4-

special  questions.2   In response to  the first  five questions,

the  jury  concluded  that Tinkham  voted  against  reappointment

because  of the content of Ward's  classroom statements, and that

Hickey and  Gibson  were  not so  motivated.    Inexplicably,  in

response to question six, the jury found that all three committee

members who voted against reappointment did so based on what they

believed  Ward  said  in  her  biology  classroom  without  first

investigating  the matter.3  The jury also found that Tinkham and

Hickey acted recklessly in this decision.

          Having narrowed the disputed issues to the vote cast by

Tinkham,  the  district court  asked  the  jury three  additional

questions in Phase II.  In response to these questions, the  jury

concluded that  Tinkham's  views  regarding  abortion  of  Down's

Syndrome  fetuses did not  conflict with  the views  that Tinkham

believed Ward espoused.

          Armed  with  the  jury  verdicts,  the  district  court

entered judgment  for defendants.  Specifically,  the court found

for Hickey because  the disputed discussion did  not motivate her

vote.  The court then relied on Perry Educ. Ass'n  v. Perry Local
                                                                 

Educators' Ass'n, 460 U.S. 37  (1983), to conclude that Tinkham's
                

disagreement with Ward's views was an essential element of Ward's

                    

2  See the jury's special verdict forms in the appendix.

3  The jury's  response to question six contradicts  its response
to  the  other questions  regarding  Gibson and  Hickey,  and the
contradiction was unexplained on the record.  However, since Ward
dismissed her claim against  Gibson, and did not appeal  her case
against Hickey, the issue is moot.

                               -5-

First Amendment claim.4   Since the  jury found no  disagreement,

the court  found  for  Tinkham.    As its  members  did  not  act

improperly, the court ultimately found for the School Committee.

          The court  also  offered alternative  grounds  for  its

judgment.    According  to  the court,  Tinkham  was  entitled to

qualified  immunity,  and Ward  failed  to  establish the  School

Committee's liability under 42 U.S.C.   1983 (1981).

          After the court announced its decision, Tinkham and the

School Committee filed conditional  motions seeking relief in the

event that this court vacates the district court's judgment.  The

motions sought  to set  aside the  jury's special  verdicts which

found  that Tinkham's  vote  was motivated  by the  controversial

classroom discussion,  and the  verdict which concluded  that the

individual  defendants  voted  without  investigation  into  what

occurred in  Ward's classroom.  The defendants contended that the

verdicts  contradicted  the  weight  of  the evidence.    In  the

alternative,  they requested a new  trial.  The  court denied the

motion  to set aside the  jury's special verdicts,  but granted a

conditional new trial due  to the clear weight of  the evidence.5

Ward  appeals from the final  judgment and order,  except for the

portion of the judgment relating to Hickey.

          After the court entered  its final judgment, defendants

                    

4   The  district court employed  the wrong legal  standard.  See
                                                                 
infra pp. 12-13.
     

5  As the  court determined that the investigation  issue related
only  to the School Committee's liability,  the court granted the
new trial  on that issue  for the School  Committee, but not  for
Tinkham.

                               -6-

filed a motion for attorneys' fees pursuant to 42 U.S.C.    1988.

The district court  denied the  motion but suggested  that if  we

reverse the fee ruling, we should only grant fees for the portion

of the litigation that occurred after January 3, 1992.  The court

also  indicated  that  the  fees defendants  requested  for  that

portion were reasonable.   Defendants appeal the denial of  fees,

and Ward cross-appeals,  arguing for a  reduction of the  court's

fee award in its alternative judgment.

                            DISCUSSION
                                      

I.  FIRST AMENDMENT

          In general, as Ward was a nontenured teacher the School

Committee  could have refused to rehire her without any reason at

all.   Mount Healthy City Sch.  Dist. Bd. of Educ.  v. Doyle, 429
                                                            

U.S. 274, 283 (1977).   However, a school committee  violates the

First Amendment, applicable to  the states through the Fourteenth

Amendment, if it denies rehiring in  retaliation for a nontenured

teacher's exercise of constitutionally  protected speech.  Id. at
                                                              

283-84; Perry v. Sinderman, 408 U.S. 593, 597 (1972).
                          

          To establish a First Amendment violation,  Ward had  to

show  that (1)  her  discussion of  abortion  of Down's  Syndrome

fetuses was  constitutionally protected;  and (2) the  discussion

was a motivating factor in the decision not to rehire her.  Mount
                                                                 

Healthy City Sch. Dist. of Educ., 429 U.S. at 287; see also Miles
                                                                 

v. Denver Public  Schs., 944 F.2d 773, 775 (10th  Cir. 1991).  If
                       

Ward  made  that  showing,  defendants  had  to  establish  by  a

preponderance  of the evidence  that they would  not have rehired

                               -7-

Ward even if she had not made the controversial statements.  Id.
                                                                

          We  begin with  the  proposition  that teachers  retain

their First Amendment right to free speech in  school.  Tinker v.
                                                              

Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969).
                                      

On the other  hand, it  is well-settled that  public schools  may

limit  classroom speech to promote educational goals.  See id. at
                                                              

507.   Courts  have long  recognized the  need for  public school

officials to  assure that their students  "learn whatever lessons

[an] activity is designed to teach, that readers or listeners are

not exposed to material that may be inappropriate for their level

of maturity, and that the views of the individual speaker are not

erroneously  attributed to the school."   Hazelwood Sch. Dist. v.
                                                              

Kuhlmeier, 484 U.S. 260, 271 (1988).
         

          In light of these competing principles, we  find that a

school committee  may regulate  a teacher's classroom  speech if:

(1)  the  regulation  is   reasonably  related  to  a  legitimate

pedagogical  concern, id. at 373; and (2) the school provided the
                         

teacher with notice of what conduct was prohibited, see Keyishian
                                                                 

v. Board of Regents, 385 U.S. 589, 604 (1967).
                   

          Through  varying  tests  courts  have  afforded schools

great deference in regulating classroom speech.  Krizek  v. Board
                                                                 

of  Educ., 713 F. Supp. 1131, 1138  (N.D. Ill. 1989).  See, e.g.,
                                                                

Zykan  v. Warsaw Community Sch.  Corp., 631 F.2d  1300, 1306 (7th
                                      

Cir.  1980) (abuse  of discretion  standard for  analyzing school

board's decision to remove books from  curriculum); Cary v. Board
                                                                 

of  Educ. Arapahoe Sch. Dist., 598 F.2d 535, 543 (10th Cir. 1979)
                             

                               -8-

(local  school  boards may  determine  subjects  taught, even  if

promoting particular viewpoint).   Similarly, in this circuit, we

have   determined   the  propriety   of  school   regulations  by

considering  circumstances  such  as  age  and sophistication  of

students,   relationship  between   teaching  method   and  valid

educational objectives, and  context and manner  of presentation.

Mailloux  v.  Kiley, 448  F.2d 1242,  1243  (1st Cir.  1971) (per
                   

curiam).

          Recently, the  Supreme Court in Kuhlmeier,  484 U.S. at
                                                   

273,  held  that  educators  may  limit  the  content  of school-

sponsored  speech  as long  as  the  limitations are  "reasonably

related to legitimate pedagogical concerns."  While the  facts in

Kuhlmeier differ from  those in  the present case,  at least  one
         

court has applied this  test to teachers' classroom speech.   See
                                                                 

Miles, 944 F.2d at 775-79; cf. Krizek, 713 F. Supp. at 1139.
                                     

          In  Kuhlmeier,  a school  principal  prevented students
                       

from  printing  certain articles  in  a  school  newspaper.   The

students participated in the production  of the newspaper as part

of a journalism  class.  The Court found that  because the school

newspaper  was  not  a  public forum,  the  school  could  impose

reasonable   restrictions  of   expression  through   the  paper.

Kuhlmeier, 484 U.S. at  260.  The newspaper did not  constitute a
         

public  forum because  the  school never  exhibited that  intent.

Indeed, the Court's  decision that  a school newspaper  is not  a

public  forum also derived from the fact  that it was part of the

journalism class  curriculum and a  "regular classroom activity."

                               -9-

Id. at 268.
   

          Similarly, a  teacher's statements  in class  during an

instructional  period are also part of a curriculum and a regular

class activity.  Like Kuhlmeier's school newspaper, the classroom
                               

is not a  public forum,  and therefore is  subject to  reasonable

speech  regulation.    See  Miles,  944  F.2d  at  776  (ordinary
                                 

classroom  is not public forum); Bishop v. Aronov, 926 F.2d 1066,
                                                 

1071 (11th Cir. 1991).

          After determining  that the newspaper was  not a public

forum,  the Supreme Court reasoned that because the speech in the

school newspaper was part of the school curriculum, and therefore

school-sponsored, the  school was  entitled to more  deference in

speech  regulation  than  it  would  be  with  respect  to  other

"personal  expression  that  happens   to  occur  on  the  school

premises."   Kuhlmeier, 484 U.S. at 271.  The Court reasoned that
                      

schools cannot be required to sponsor inappropriate speech.  Id.
                                                                

          Like  the  newspaper, a  teacher's classroom  speech is

part of the curriculum.   Indeed, a teacher's principal classroom

role is to teach  students the school curriculum.   Thus, schools

may  reasonably limit  teachers'  speech in  that  setting.   See
                                                                 

Miles, 944 F.2d at 776.
     

          This circuit's test of  teachers' speech regulation, as

set out in Mailloux, is consistent with the Supreme Court's test,
                   

as set out in  Kuhlmeier.  Cf. Krizek, 713  F.Supp. at 1139.   It
                                     

stands to reason that whether a  regulation is reasonably related

to legitimate  pedagogical concerns  will depend on,  among other

                               -10-

things,  the   age  and  sophistication  of   the  students,  the

relationship  between  teaching  method  and   valid  educational

objective, and the context and manner of the presentation.

          Even  if under the above  test a school  may prohibit a

teacher's  statements before she  makes them, however,  it is not

entitled to  retaliate against  speech that it  never prohibited.

Cf. Mount Healthy City Bd.  of Educ., 429 U.S. at  284 (classroom
                                    

speech was  constitutionally protected when school  board did not

suggest that teacher violated any established policy, or that the

board's reaction to the communication was "anything more than  an

ad hoc response  to [plaintiff's] communication .  . . .").   Few

subjects lack controversy.  If teachers must fear retaliation for

every utterance, they will  fear teaching.  As the  Supreme Court

warned  in Keyishian  385  U.S. at  604,  "[t]he danger  of  that
                    

chilling effect upon the exercise of vital First Amendment rights

must be guarded against  by sensitive tools which  clearly inform

teachers what is being proscribed."

          Although  the Court  in Kuhlmeier  did not  address the
                                           

notice issue  with respect to school-sponsored  speech, it stated

only that prepublication control need  not be pursuant to express
                                

regulation.  Kuhlmeier,  484 U.S. at 273 n.6.  This suggests that
                      

the  Court  would  agree that  postpublication  retaliation  must
                                                           

derive from some prior limitation.  Indeed, this circuit has long

recognized a  teacher's right to notice of what classroom conduct

is prohibited.  See, e.g.,  Mailloux, 448 F.2d at 1243; Keefe  v.
                                                             

Geanakos, 418 F.2d 359, 362 (1st Cir. 1969).
        

                               -11-

          Of course, while we acknowledge a First Amendment right

of  public school teachers to know what conduct is proscribed, we

do  not  hold  that  a  school  must  expressly   prohibit  every

imaginable inappropriate conduct by teachers.  Cf. Krizek, 713 F.
                                                         

Supp. at 1140 (warning that such requirement is an impossible and

undesirable burden).  The relevant inquiry is:  based on existing

regulations,   policies,  discussions,   and   other   forms   of

communication between school administration  and teachers, was it

reasonable for the school to expect the teacher to know  that her

conduct was prohibited?

II. THE DISTRICT COURT'S ANALYSIS

          The district court found  that under Perry Educ. Ass'n,
                                                                

the School Committee's  retaliation was permissible as long as it

did  not  suppress  Ward's  speech  based  on the  viewpoint  she

expressed.    In  Perry Educ.  Ass'n,  pursuant  to  a collective
                                    

bargaining agreement, a school  permitted a teachers' association

to  use   the  interschool  mailing  system   and  the  teachers'

mailboxes.   Under the  same agreement,  the school  permitted no

access by rival teachers' associations.  A rival association sued

alleging  a First Amendment violation.  The Supreme Court in that

case  held that the preferential access did not violate the First

Amendment.  Perry  Educ. Ass'n,  460 U.S.  at 44-54.   The  court
                              

reasoned  that  a  state  may  reserve  public property  for  its

intended use.  However,  it may regulate speech on  that property

only  if  the  regulation is  reasonable  and  not  an effort  to

suppress expression due to the view expressed.  Id. at 46.
                                                   

                               -12-

          Under the  Kuhlmeier rationale, Perry Educ.  Ass'n does
                                                            

not  apply to  teachers'  classroom speech.    A faculty  mailing

system significantly  differs from a  school-sponsored curriculum

being taught to a  captive audience of youngsters.   Schools need

not fear that  speech on  a faculty mailing  system will  prevent

students  from learning  appropriate classroom lessons.   Indeed,

while  citing Perry Educ. Ass'n,  the Court in  Kuhlmeier did not
                                                         

require  that school  regulation  of  school-sponsored speech  be

viewpoint neutral.  See Kuhlmeier, 484 U.S. at 270.
                                 

          Moreover,  Perry Educ.  Ass'n  does not  stand for  the
                                       

proposition that where a state reserves property for its intended

use, regulation of speech on that property is permissible as long

as  it is  viewpoint  neutral.   Even  under Perry  Educ.  Ass'n,
                                                                

viewpoint discrimination is not an  essential element of a  First

Amendment claim.  The  Court in that case specifically  held that

the regulation also must  be reasonable.  Perry Educ.  Ass'n, 460
                                                            

U.S. at  46.  Thus, even if a regulation is viewpoint neutral, it

can be impermissible under Perry Educ. Ass'n.
                                            

III. APPLICATION TO THE PRESENT CASE

          On  appeal,  Ward  does   not  argue  that  the  School

Committee  was not  entitled  to limit  her  statements had  they

chosen  to do  so in advance.   She  argues only  that the School

Committee failed to notify her  that her conduct was  prohibited.

Since the  trial jury never determined whether Ward received such

notice, she requests a trial on that issue.  We  find that she is

not entitled to one.

                               -13-

          Rule 51 of the Federal Rules of Civil Procedure  states

that  without objecting  before the  jury retires,  no party  may

later complain of a failure  to give an instruction.6  This  rule

equally applies to special  interrogatories.  Phav. v. Trueblood,
                                                                 

Inc.,  915  F.2d 764,  769 (1st  Cir.  1990) (citing  Anderson v.
                                                              

Cryovac, 862 F.2d 910, 918 (1st Cir. 1988)).
       

          In  the present  case, Ward  never requested  a special

interrogatory on  the  issue of  notice.   Moreover,  while  Ward

essentially  argues that  she  had no  meaningful opportunity  to

request such a  question, we find  otherwise.  Before  submitting

the Phase I special verdict form to  the jury, the district court

judge  held a  conference  in which  he specifically  invited the

parties' suggestions.  (Conference  on Verdict Form at 4).   Ward

failed  to  request  an  interrogatory on  notice  at  that time.

Additionally,  Ward failed to mention the notice issue in both of

her  submissions of proposed changes to the Phase I verdict form.

After considering  the court's proposed verdict  form, Ward moved

for  additional interrogatories to the jury.  Again, Ward made no

request for a  question on  the notice issue.   Similarly,  while

defendants'  counsel  inquired  about  the  notice  issue  before

submitting the Phase  II verdict form to  the jury, Ward  did not

                    

6  Rule 51 provides in relevant part:

            No party may  assign as error the  giving
            or the  failure  to give  an  instruction
            unless that party objects  thereto before
            the jury retires to consider its verdict,
            stating distinctly the matter objected to
            and the grounds of the objection.

                               -14-

request a question  on the  matter.  In  response to  defendants'

inquiry, the court stated that it would not address that issue in

Phase  II, and would address any further issues in future phases.

After the jury answered the Phase II questions, Ward again missed

her chance  to  request an  interrogatory  on the  notice  issue.

Indeed, after  Phase II, Ward specifically argued to the district

court that  "it's not necessary to  have a phase  that deals with

the question of  notice."  (Hearing on Motions, July  7, 1992, at

22).  Instead, Ward asked the court to find a lack of notice as a

matter of law, which the court  refused to do.  It was not  until

six days after  the court's entry of  a final judgment that  Ward

finally  requested  a  jury finding  on  the  notice  issue.   We

conclude that although Ward had numerous opportunities to request

a  jury determination  on the  principal issue  of her  case, she

failed to  do so.   She  therefore has waived  the right  to that

determination, and has not made her case against defendants.

IV.  ATTORNEYS' FEES

          Under  42 U.S.C.   1988  (Supp. 1992), a  court, in its

discretion,  may award attorneys' fees to a prevailing party in a

civil rights case.7   A  prevailing defendant in  a civil  rights

                    

7  Section 1988 provides in relevant part:

            In any action or proceeding to enforce  a
            provision of sections  1981, 1982,  1983,
            1985, and 1986 of this title, title IX of
            Public  Law  92-318, or  title VI  of the
            Civil Rights Act of  1964, the court,  in
            its discretion, may allow  the prevailing
            party,  other than  the United  States, a
            reasonable attorney's fee as part  of the
            costs.

                               -15-

case may recover attorneys' fees if it can show that "plaintiff's

action was  frivolous, unreasonable,  or groundless, or  that the

plaintiff  continued to  litigate  after it  clearly became  so."

Foster v. Mydas  Assocs., Inc.,  943 F.2d 139,  145-46 (1st  Cir.
                              

1991) (quoting Christianburg Garment Co.  v. EEOC, 434 U.S.  412,
                                                 

422 (1978)).

          The   district  court   denied   attorneys'   fees   by

analogizing  to the  interrelated  claims  doctrine discussed  in

Lipsett v.  Blanco, 975  F.2d 934  (1st  Cir.  1992).   Under the
                  

doctrine, once a court decides that a party has prevailed for the

purposes of  a fee-shifting  statute, the  fee award  may include

fees for  work performed on  unsuccessful claims if  that party's

unsuccessful claims are interrelated  to the successful claims by

a common core of facts or related legal theories.  Id. at 940-41.
                                                      

          In  the present  case,  the district  court found  that

while some of  Ward's legal theories  might have been  frivolous,

some of the claims were permissible.  The court also found all of

Ward's  claims   interrelated.     Thus,   analogizing   to   the

interrelated  claims doctrine,  the court denied  fees on  all of

Ward's claims.

          We   find  the   district  court's   reliance   on  the

interrelated claims  doctrine misplaced.   That doctrine  is used

for convenience in the  difficult task of calculating fees.   See
                                                                 

id.   It  is inapplicable  unless the  court initially  finds the
   

plaintiff a prevailing party.   A court may not use the  doctrine

to decide not to grant any fees.

                               -16-

          The standard  for a  civil rights defendant  to receive

fees  is high to encourage  legitimate civil rights  claims.  See
                                                                 

Foster v.  Mydas Assoc.,  Inc., 943  F.2d at 144.   On  the other
                              

hand, frivolous civil rights claims waste judicial resources that

would  otherwise  be  used  for  legitimate  claims.     See  id.
                                                                 

Accordingly, a  district court should not deny fees for defending

frivolous claims merely because  calculation would be  difficult.

We therefore  refuse to  adopt the district  court's primary  fee

judgment.

          In addition  to denying fees, the  district court ruled

in the alternative that  "even if persuaded" that some  of Ward's

claims were frivolous, the litigation that took place  before the

court's order of January  3, 1992 was not frivolous, and that the

requested  fees   for  the  litigation  beyond   that  time  were

reasonable.   Given the muddled state of the law surrounding this

case,  we  find  that  the  district  court  did  not  abuse  its

discretion  in  finding  that  Ward's  claims  were  not  clearly

frivolous before January  3, 1992.   Thus, we  adopt the  court's

ruling to the extent that it  denies fees for the litigation that

occurred before that time.

          However, in  its alternative ruling, the district court

never determined whether any  of Ward's litigation that continued

beyond that time was frivolous.  We  ask  the  district court  on

remand  to  make  that  determination,  and  calculate  any  fees

accordingly.

                            CONCLUSION
                                      

                               -17-

          We affirm the district  court's judgment for defendants
                   

on the merits.  We also affirm the district court's alternate fee
                              

ruling to the extent that it denies fees for the litigation prior

to  January 3, 1992.   However, we remand  for a determination of
                                         

which,  if any, of Ward's  litigation beyond January  3, 1992 was

frivolous.  If there  was any frivolous litigation, the  district

court should award fees to defendants accordingly.

                               -18-
