# McFerren v. County Board of Education of Fayette County

> Court of Appeals for the Sixth Circuit · January 28, 1972 · 455 F.2d 199

URL: https://www.frixlaw.com/law-library/cases/8887260

## Case

- **Full name:** John McFERREN, Jr., and United States of America, Plaintiff-Intervenor, and Mrs. Mable C. Walker, Intervening v. COUNTY BOARD OF EDUCATION OF FAYETTE COUNTY, TENNESSEE
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 28, 1972
- **Citations:** 455 F.2d 199; 4 Fair Empl. Prac. Cas. (BNA) 368; 15 Fed. R. Serv. 2d 1295; 4 Empl. Prac. Dec. (CCH) 7652; 1972 U.S. App. LEXIS 11589
- **Precedential status:** Published
- **Opinion:** Dissent by Weick
- **Judges:** Edwards, Weick
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8887260

## Opinion text

WEICK, Circuit Judge
(dissenting).
In this case the County Board was required by a desegregation order of the District Court to maintain in the School System, as nearly as practicable a ratio of 60% Negro teachers to 40% white teachers. It is not claimed that this ratio was significantly altered at any time.
None of the 22 teachers who were not rehired for the school year 1970-71 had tenure under Tennessee law. T.C.A. § 49-1402 et seq. None had a statutory right to reemployment upon the expiration of his contract. Shannon v. Board of Educ., 199 Tenn. 250 , 286 S.W.2d 571 (1955). None was recommended to the Board for rehiring by the Superintendent of Schools.
Of the 22 teachers who were not rehired, 15 or 68% were black, and 7 were white. Six of the fifteen blacks who were not rehired were given adverse recommendations by their black principals. Of the seven white teachers who were not rehired, four had been given adverse recommendations by their black principals. During 1969-70 the School Board employed 260 teachers, of whom 156 or 60% were black. 42% of the untenured teachers in the School System were black.
Only thirteen of the black teachers who were not rehired claimed racial discrimination. None of the white teachers, not rehired, made any such claim.
About forty teachers resigned during the summer of 1970, of whom 10% were black. Replacements were hired, 19% of whom were black.
In my opinion, there was no evidence of discrimination and none has been pointed out in the failure of the Board to rehire either black or white teachers.
The Court denied defendants’ demand for a jury trial and held that the thirteen plaintiffs were entitled to recover damages in the amount that they would have earned had they been rehired, less what they could reasonably have earned in other suitable employment. The Court made no determination as to the specific amounts of damages, stating that he would determine them in a separate hearing. This part of the case is still pending in the District Court, and the equitable issues are pending here, with the result that we may have piecemeal appeals, which is certainly not contemplated by Rule 54(b), Fed.R.Civ.P.
The Court declined to hear proof offered by defendants as to the competency of the teachers who were not rehired. It held that the objective standards required in Rolfe v. County Bd. of Educ., 391 F.2d 77 (6th Cir. 1968), had not been followed, and hence proof of incompetency was not admissible. I respectfully disagree.
In my opinion, the District Court erred in excluding evidence relating to the competency of the teachers, not rehired. The Board of Education, in utilizing tax funds entrusted to it, had a duty to hire or rehire only competent persons to teach in the public school system. Rolfe may not be used to justify an order requiring the hiring of a teacher who may not be competent to teach.
In Rolfe, unlike the present case, the Board had violated the desegregation plan ordered by the District Court by assigning all Negro teachers to a particular *205 high school and hiring fourteen new teachers, all of whom were white.
In Rolfe, no standards had been adopted. In the present case the standards adopted by the Board to be followed in determining whether to offer employment to nontenured teachers, were:
“1. Teachers who would not be rehired due to the decreased enrollment would be taken from the non-tenure teachers employed by the Board.
2. Teachers would be judged on the following criteria :
(a) Competency. This included formal education of the teacher, knowledge of the subject matter and ability to convey it to the pupils, which included the ability to maintan discipline.
(b) Professional Attitude. This referred to the conduct of the teacher and included the teacher’s personal appearance, orderliness and cleanliness maintained in the school room and the teacher’s conduct in the community with regard to such matters as promptness in paying debts and evidences of morality and character.
(c) Recommendations or complaints. This included oral or written complaints from principals, supervisors and the superintendent of the system, with particular reliance upon a complaint by the principal of the teacher involved.
(d) The need for teachers certified in certain fields. This included whether or not the decreased enrollment would cause the Board to have too many teachers in a particular field, such as physical education or science.” (pp. 53a-54a)
See also page 346a.
In my opinion, these standards were objective, within the meaning of Rolfe. There was substantial evidence that these standards were adhered to by the County Board in determining not to rehire the plaintiffs.
In its decree, the Court ordered that in determining which teachers should be rehired in the event of further faculty or staff reduction, the sole standards to be applied should be: 1) State certification; 2) College work; and 3) Appropriate credits for length of experience.
In my opinion, this was an unwarranted interference with the functions of the County Board and was error. A teacher could have all of these attributes and still be a person unfit for hiring as a teacher.
I also disagree with the holding of the District Court that a “non-tenure teacher who has long periods of service acquires a protectible interest in his continued employment and his non-re-election must need minimal standards of procedural due process.” The Court relied on Lucas v. Chapman, 430 F.2d 945 (5th Cir. 1970), and Gouge v. Joint School Dist. No. 1, 310 F.Supp. 984 (W. D.Wis.1970).
In my opinion, these decisions are contrary to the weight of authority. It is well settled that no person has a constitutional right to public employment. Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971). Such employment is not protected under the due process clause of the Fourteenth Amendment. Freeman v. Gould Special School Dist., 405 F.2d 1153 (8th Cir.), cert. denied, 396 U.S. 843 , 90 S.Ct. 61 , 24 L.Ed.2d 93 (1969). See also Jones v. Hopper, 410 F.2d 1323 (10th Cir. 1969), cert. denied, 397 U.S. 991 , 90 S.Ct. 1111 , 25 L.Ed.2d 399 (1970); Charland v. Norge Div., Borg-Warner Corp., 407 F.2d 1062 (6th Cir.), cert. denied, 395 U.S. 927 , 89 S.Ct. 1786 , 23 L.Ed.2d 245 (1969); Parker v. Board of Educ., 348 F.2d 464 (4th Cir. 1965), cert. denied, 382 U.S. 1030 , 86 S.Ct. 653 , 15 L.Ed.2d 543 (1966). As to Federal Government employees, see Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 , 81 S.Ct. 1743 , 6 L.Ed.2d 1230 (1961); Medoff v. Freeman, 362 F.2d 472 (1st Cir. 1966).
Lastly, the District Court erred in denying to the County Board a jury trial on the legal claim for damage. The majority opinion relies on NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 , 57 S.Ct. *206 615 , 81 L.Ed. 893 (1937), Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966), and Harkless v. Sweeney Independent School Dist., 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991 , 91 S.Ct. 451 , 27 L.Ed. 2d 439 (1971).
Smith and Harkless both were based on NLRB v. Jones & Laughlin. If Jones & Laughlin is inapplicable, then these decisions ought not to be followed.
The Seventh Amendment to the Constitution provides:
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”
Jones & Laughlin was not a suit at common law, but was a special statutory NLRB proceeding. Hence, Amendment YII had no application to the NLRB proceeding. Although the National Labor Relations Board performs some quasi-judicial functions, it is not an Article III Court, nor any other kind of a Court.
The Supreme Court recognized this difference in Jones & Laughlin when it said:
“The instant case is not a suit at common law or in the nature of such a suit. The proceeding is one unknown to the common law. It is a statutory proceeding. Reinstatement of the employee and payment for the time lost are requirements imposed for violation of the statute and are remedies appropriate to its enforcement.” (Id., 301 U.S. at 48, 49 , 57 S.Ct. at 629 ).
The present action, although based on an alleged violation of a statute (§ 1983), is either a suit at common law or is in the nature of such a suit. It was filed in an Article III Court. It sought in-junctive relief (reinstatement) and damages.
That legal as well as equitable claims are involved in such a case was held in Madison v. Wood, 410 F.2d 564 (6th Cir. 1969), where a Negro policeman filed an action under the Civil Rights Act seeking reinstatement to his position as sergeant and damages for loss of wages. When the statute of limitations was interposed as a defense he amended his complaint to seek only equitable relief. In that case we held :
“True, a remedy at law solely for damages would not have been adequate to restore Appellant to his former position as police sergeant, but the fact that Appellant amended his complaint to seek purely equitable relief does not transform his claim into a purely equitable one allowing him to escape the bar of the statute of limitations. Dixie Margarine Co. v. Shae-fer, 139 F.2d 221 (6th Cir. 1943). Because of the nature of the alleged wrong done to him, Appellant had a concurrent remedy at law for damages which, because of its inadequacy, entitled him to come into equity for more appropriate relief. Since we hold that Appellant’s legal remedy was barred by M.S.A. § 27.605, any equitable relief he may seek must also be barred.” (Id. at 567, 568)
National Union Elec. Co. v. Wilson, 434 F.2d 986 (6th Cir. 1970) was a cause of action for injunctive relief, for accounting and damages (compensatory and punitive), for conspiracy, and for return of salary payments. It involved unfair competition, and the alleged appropriation of customer lists, trade secrets, and orders. It was held that these averments in the complaint stated actions at law in which the defendants were entitled to trial by jury on the legal claims. We stated:
“In W. R. Grace & Co. v. Hargadine, 392 F.2d 9 (6th Cir. 1968), legal as well as equitable issues were involved. The trial court submitted the legal issues to a jury, and decided any equitable issues, including any injunctions. This is what the court should have *207 done in the present case, ” ( 434 F.2d at 988 )
In Dairy Queen, Inc. v. Wood, 369 U.S. 469 , 82 S.Ct. 894 , 8 L.Ed.2d 44 (1962), it was held:
“Where both legal and equitable issues are presented in a single case, any legal issues for which a trial by jury is timely and properly demanded must be submitted to a jury. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, pp. 470-473 [ 79 S.Ct. 948 , 3 L.Ed. 2d 988 ]” (Syl. (a))
The Court also held that “the legal claims involved in the action must be determined prior to any final court determination of respondents’ equitable claims.” Id. at 479, 82 S.Ct. at 901 .
In the present case the Court determined the equitable claims first and has not yet heard the legal claims.
In Ross v. Bernhard, 396 U.S. 531 at 542 , 90 S.Ct. 733 at 740 , 24 L.Ed.2d 729 (1970), the Court said:
“In the instant ease we have no doubt that the corporation’s claim is, at least in part, a legal one. The relief sought is money damages.”
The plaintiffs, instead of filing a separate suit to vindicate their rights, filed only a motion to intervene (setting forth their claims for relief in said motion) in a pending school desegregation case in which a plan for desegregation had already been approved. In my judgment the District Court should have, severed the motion and docketed it as a separate action. In a school desegregation ease a District Court does not sit as a super Board of Education to supervise the daily operation of the public schools and determine all controversies which may arise in connection with the hiring of teachers. In any event, the use of this device by plaintiffs cannot operate to deprive the defendants of their constitutional right to a jury trial. Ross v. Bernhard, supra, fn. 15 , at 541, 90 S.Ct. 733 , 24 L.Ed.2d 729 .
I would reverse the judgment of the District Court.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8887260. Public record. Not legal advice.