Petitioners Brief — Drew Municipal Separate School District v. Andrews

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| NOV 20 1975) |

MICHAEL RODAL

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In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 74-1318

DREW MUNICIPAL SEPARATE SCHOOL

DISTRICT, ET AL.,

Petitioners.

VS.

KATIE MAE ANDREWS, ET AL.,

Respondents. te

On Writ or CERTIORARI TO THE UNITED STATES COURT

oF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONERS

A. F. SUMMER

Attorney General

State of Mississippi

P. O. Box 220

Jackson, Mississippi 39205

WILLIAM A. ALLAIN

101 Bankers Trust Plaza Building

Jackson, Mississippi 39201

CHAMP T. TERNEY

100 Court Street

Indianola, Mississippi 38751

Attorneys for Petitioners

E. L. Mewpewwatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

TABLE OF CONTENTS

Opinions Below

Jurisdiction — ,

Constitutional Provisions Invol vd

I. The district court’s finding that the defendants’

failure to employ the plaintiffs was based upon

a constitutionally impermissible reason, i.e., the

bearing of illegitimate children, conflicts with

the Court’s decisions in Board of Regents v. Roth,

408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701, and

Perry v. Sindermann, 408 U.S. 593, 33 L.Ed.2d

570, 92 S.Ct. 2694

II. The school district rule, neutral as to sex and

race, does not violate the Due Process Clause

and/or Equal Protection Clause of the Four-

teenth Amendment to the Constitution of the

United States 8 eli Sa

Conclusion = 2

Table of Authorities

CASES

Adler v. Board of Education, 342 U.S. 485, 96 L. Ed. 517,

72 S.Ct. 380

Beilan v. Board of Ed. of Phila., 357 U.S. 399, 2 LEd2d

414, 78 S.Ct. 1317 1

Board of Regents v. Roth, 408 U.S. 564, 33 L.Ed.2d 548,

92 S.Ct. 2701 12

Boddie v. Connecticut, 401 U.S. 371, 28 L.Ed.2d 113, 91

S.Ct. 780 13

Brown v. Board of Education of Topeka, 347 U.S. 483,

98 L.Ed. 873, 74 S.Ct. 686 21

Cleveland Board of Education v. LaFleur, 414 U.S. 632,

39 L.Ed.2d 52, 94 S.Ct. 791 19

CSC v. Letter Carriers, 413 U.S. 548, 37 L.Ed.2d 769, 93

1 ˙;w danas 9

Davis v. Beason, 133 U.S. 333, 33 L.Ed. 637, 10 S. Ct. 299

, 14, 15

F.H.A. v. Darlington, 358 US. 84, 3 L.Ed.2d 132, 79

166 —ññ——̃ Sö⅜ al a 16

Ferguson v. Skrupa, 372 US. 726, 10 L.Ed.2d 93, 83

S.Ct. 1028 17

Goss v. Lopez, 419 US. 565, 42 L.Ed.2d 725, 95 S.Ct.

729 (Jan. 22, 1975) .. 4, 20, 21

Keckeisen v. Independent School District, 509 F.2d

1062, cert. denied, 44 U.S.L.W. 3194 (Oct. 6, 1975) ... 26

Labine v. Vincent, 401 U.S. 532, 28 L.Ed.2d 288, 91

S.Ct. 1017 15

McGowan v. Maryland, 366 US. 420, 6 L.Ed.2d 393,

Lü 0 17

McLaughlin v. Florida, 379 U.S. 184, 13 L. Ed. 2d 222, 85

. c 13

Meyer v. Nebraska, 262 U.S. 390, 67 L.Ed. 1042, 43 S.Ct.

625 (1924) 13

Murphy v. Ramsey, 114 U.S. 15, 29 L.Ed. 47, 5 S.Ct. 747

14, 15

ns. O'Neill, 359 U.S. 1, 3 L.Ed.2d 585, 79 S. Ct.

564 ...... 7 1 — 16

Paris Adult Theatre I v. Slaton, 413 US. 49, 37 L. Ed. 2d

446, 93 S.Ct. 2628 23, 24, 25

Perry v. Sindermann, 408 U.S. 593, 33 L.Ed.2d 570, 92

S.Ct. 2694 12

Peters v. Kiff, 407 U.S. 493, 33 L.Ed.2d 83, 92 S.Ct. 2163 11

Pickering v. Board of Education, 391 U.S. 563, 20 L.Ed.

2d 811, 88 S.Ct. 1731 . 19

Richardson v. Ramirez, 418 U.S. 24, 41 L.Ed.2d 551, 94

S.Ct. 2655 15

Roe v. Wade, 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct.

1409 = 12-13

Salsburg v. Maryland, 346 U.S. 545, 98 L.Ed. 281, 74

S.Ct. 280 16

Scott v. Macy, 402 F.2d 644 6G 35

Shelton v. Tucker, 364 U.S. 479, 5 L.Ed.2d 231, 81 S.Ct.

— . 19

Skinner v. Oklahoma, 316 U.S. 535, 86 L. Ed. 1655, 62

7e 13

Vlandis v. Kline, 412 U.S. 441, 37 L. Ed. 2d 63, 93 S. Ct.

9... —— —fpy „ 17

Wades v. Salfi, No. 74-2144. =e , 45

LA S82, 9B BCC. 2KLÿ⸗2ł—⸗év. 26

CONSTITUTIONAL PROVISIONS

AND STATUTES

Fourteenth Amendment to the Constitution of the

United States r 2, 13, 16, 18

28 U.S.C. 81254 (1)

28 U.S.C. 81343

42 U.S.C. 81981

42 U.S.C. 81983

42 U.S.C. 52000 (d)

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 74-1318

DREW MUNICIPAL SEPARATE SCHOOL

DISTRICT, ET AL.,

Petitioners.

On Writ or CERTIORARI TO THE UNITED STATES CouRT

or APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONERS

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 507 F.2d 611, and is

reproduced in Appendix A of the Petition. (pp. 1A-14A)

The opinion of the United States District Court for the

Northern District of Mississippi is reported at 371 F.Supp.

27, and is reproduced in Appendix B of the Petition.

(pp. 15A-37A)

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on February 3, 1975. The petition for

writ of certiorari was timely filed and was granted on

October 6, 1975. This Court has jurisdiction pursuant to

28 U.S.C. sec. 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Due Process Clause and the Equal Protection

Clause of the Fourteenth Amendment to the Constitution

of the United States.

QUESTIONS PRESENTED

1. Whether a person has a right derived from or

protected by the United States Constitution to bear illegiti-

mate children.

2. Whether the failure to employ plaintiffs in de-

fendants’ school district because they were unwed parents

of illegitimate children impinges upon some provision of

the United States Constitution.

3. Whether a school district rule, neutral as to sex

and race, which excludes parents of illegitimate children

from consideration for employment as teachers or teacher

aides in a small rural school district! violates the Due

Process Clause and Equal Protection Clause of the Four-

teenth Amendment to the Constitution of the United

States.

1. The Drew Municipal Separate School District is a small

school district located in a rural Mississippi Delta town. The

town of Drew has a ulation of 2,574 individuals according to

the 1970 United States Report.

STATEMENT OF THE CASE

This is an action brought under 42 U.S.C. §§1981, 1983,

Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000(d),

et seq., and the Fifth and Fourteenth Amendments to the

Constitution of the United States. The plaintiffs, both be-

ing single and parents of illegitimate children, sought an

injunction voiding the school district's rule which ex-

cluded unwed parents of illegitimate children, both male

and female, from consideration for employment as teachers

and teacher aides. The plaintiffs also requested the district

court to require the defendants to enter into contracts of

employment with them. The district court found the regu-

lation to be unconstitutional as violative of the Due Process

Clause and Equal Protection Clause of the Fourteenth

Amendment to the Constitution of the United States“ and

required the defendants to execute contracts of employment

with the plaintiffs.

The rule was adopted based upon the judgment that

the role of a teacher, apart from imparting instruction, is

to mold character and development through being a “role

model.” (Pettey, Trans., pp. 7,8) The rule was not prom-

ulgated to automatically deny consideration for employ-

5 th plaintiffs made application for employment with the

3 district. Plaintiff Rogers ted on her ap-

plication that she was single and had one child. This child was

illegitimate and she later gave birth to another illegitimate child.

tiff Andrews indicated on her application that she was

e and had no children when in fact she had one illegitimate

child. When questioned about this matter, she readily admitted

that she “lied about it.” Her attitude LI 2 of an

employment application by anyone was, “

they wad get the job, by lying, sure.” (Tr. pp. 65 & unc

20, 1973)

_ The district court held that no rational relation exists

mre mM the school district’s rule and educational objectives and

further that in the alternative the rule was a sex-based classifi-

cation and therefore inherently suspect, but the court of appeals

did not address this issue since it affirmed the district court

“upon traditional equal protection grounds.

ment as teachers and teacher aides of unwed parents of

illegitimate children on the basis that such parents are

immoral, but on the basis that such parents regardless of

their present status of morality are improper models for

the many roles occupied by the teacher educator, ad-

viser, friend and, at times, parent- substitute“ during the

formative years of primary and secondary education. Goss

v. Lopez, 419 U.S. 565, 42 L.Ed.2d 725, 95 S.Ct. 729 [No.

73-898], decided January 22, 1975 (Powell, J., dissenting).

The rule is rested on educational considerations; the

superintendent’s testimony is clear that educational rea-

sons were involved. (Id., pp. 7, 8)

The superintendent’s testimony concerning morals has

been overworked and misapprehended by the lower courts.

The superintendent was not saying that the rule neces-

sarily would separate the moral from the immoral in litmus

paper fashion. Rather, his moral concern was that in the

school year 1971-1972, twenty-eight girls.ranging in age

from thirteen to seventeen dropped out of school because

of pregnancy. (Id., p. 8) He believed that the influences

created by application of this rule would arrest this trend.

Without insinuation that those who fell afoul of the rule

were necessarily presently immoral, the superintendent

believed that unwed parents of illegitimate children in

teaching positions would add to rather than help arrest

this alarming trend in his district. (Id., p. 9)

In this case of first impression, sociological and psy-

chological testimony was preeminently important. The dis-

trict court only paid lip service to the expert testimony,

371 F.Supp. 31, as being of a “judgmental nature un-

supported by any studies that provide a solid factual basis

for their conclusions.” Shunning these important opinions

of experts, the court rested its decision primarily on a

priori assumptions as to the invalidity of the classification

without considering how the classification works in prac-

tice. It is for this reason that the testimony of the ex-

perts, both pro and con, deserves considered attention.

Dr. Kenneth Clark while testifying for the plaintiffs

opined that “in addition to [the] basic academic skills

and competences a teacher ought to communicate to stu-

dents, even from the early grades, the importances of other

human characteristics.” (Dep. Clark, p. 13) He conceded

much importance to “role modeling”, wherein growing in-

dividuals derive models for their own behavior, attitudes

and feelings from adults and teachers. (Id. p. 15)* He

readily admitted that teachers “do affect the values of

young people who come in contact with them”; that “un-

wed parenthood [is] a component or part of role model”

and “it may well be a factor in influencing the child”.

(Id., p. 16) He further admitted that “teachers not only

communicate academic knowledge they communicate an

approach toward human beings, a style of life”. (Id., p.

17)

The Reverend John Perkins testifying for the plain-

tiffs stated that he was of the opinion that a teacher has

great effect in a classroom over the moral development

and character development of a child. It was his belief

that the teacher serves as a model for the student. (Tr., p.

26—May 31, 1973)

Dr. Ernest van den Haag, scholar and writer in the

fields of education, sociology and psychology, identified

other human beings for what are desirable char-

— r DL

ularl t adults in the life of human become

means growing individual looks to adults, and some-

wiry <> for their own behavior and attitudes and

times

feelings.” (Id., p. 15)

and elaborated upon a basis for the rule of the Drew Mu-

nicipal Separate School District. He testified that the

family and monogamous marriage are protected Ameri-

can institutions. (Deposition of Dr. van den Haag, p. 8)

Sexual activities are and have been regulated within the

social and legal norm of marriage. It then follows, ac-

cording to Dr. van den Haag, that those who do not con-

form to the institution of marriage “are legitimately made

to suffer some disadvantages, particularly if they delib-

erately fail to follow that institution.” (Id., p. 8)

Teachers, in van den Haag’s view, perform two func-

tions: (1) They teach cognitive knowledge to their stu-

dents, and (2) “Transmit and, inseparably from this cogni-

tive knowledge, the cultural heritage of the society or

community in which they are employed.” The cultural

transmission role is particularly strong in the lower grades,

since the primary influences on children are the home and

the school. The emotional attitudes of the teacher are

readily communicated to his students by the teacher’s per-

sonality and conduct. The authority of the teacher turns

on his acceptance by the pupil. The acceptance reaches

the degree of receiving the teacher as a person wherein

the students:

“take as a model to some extent, and indentify with

and, in fact, in effect, build their own identity on the

teacher’s general conduct, behavior, etc., to the extent

to which they are aware of it.” (Id., pp. 9-11)

The importance of proper role models is central to

Dr. van den Haag since “students seem to have sources of

information that I never have been able to fully find out,

but they seem to always know everything about their

teachers.” (Id., p. 11) Because Drew is a small town with

a small school, Dr. van den Haag believed that “whether

by gossip or information or general curiosity about the

lives of adults, that the students would know” about the

private lives of their teachers. (Id., p. 13) There is an

accompanying danger, according to van den Haag, that

children fond of a particular teacher would accept that

teacher tote lv and therefore accept her behavior that the

surrounding community regards as unacceptable. (Id., p.

14) Dr. van den Haag believes that even arithmetic teach-

ers in grade school will tend to communicate with the

children on an emotional basis about everyday events and

occurrences even within their own family. (Id., p. 16) It

his own values in the classroom’. Finally, van den Haag

believes that education in the lower grades is not just a

matter directed to the intellect:

Drew

patterns. It is unavoidable, it seems to me, that the pupils will

e, past presen

conduct, and it is unavoidable that the teacher, whether he likes

it or not, expresses his own values in the classroom.

children out of wedlock, such a teacher can hardly, at the same

time, pretend to the children in the classroom that it is wrong.

out

And that, of course, would have one of the two effects I

nantes ain, If the children accept the teacher in

they will accept his teaching. If, on the other hand, the teacher

behavior and this expression of values will make him even

—1 2 to such a point as to compare his or her ability

(Dep. of van den Haag, pp. 17 & 18)

“Children learn and learn only because they like their

teacher and wish to please him. Children learn for

the love of the teacher, so to speak. This is less so

as the children grow older, but it never stops. It is

hard to learn from a teacher you don’t care for; im-

possible for a young child, I would say.” (Id., p. 18)

The teacher cannot teach any subject unless a child

accepts him, likes him, and admires him. Along with role

modeling there exists role assimilation in which children

assume and learn to assume an identity of their own

formed by and incorporating part of the personality, con-

duct and values of adult models.

Schooling as seen by Dr. van den Haag is an effort to

impart the selected cultural heritage of the society of

which one is a part. This cultural transmission is a selec-

tive process. All the bad traits of a national character

such as propensity for crimes of violence should be avoided

and ideas of honesty, proper behavior and restraint or

avoidance of certain sexual practices, including those the

subject of the regulation, should be taught, (Id., p. 24)

Dr. van den Haag also highlighted the emphasis of the

rule upon status and not morality. In practice, it would

be impossible to regulate whether a prospective teacher

had extra or premarital sex. On the other hand, the status

of having an illegitimate child will be readily observable

in a town such as Drew.

The rule clearly regulates the situation of an individ-

ual having an illegitimate child rather than the situation

of an individual engaging in premarital sex. (Id., p. 30)

Addressing the issue of the supposed severability of

teachers’ conduct from students’ values and inferentially

their sexual practices, Dr. van den Haag commented:

“The impact varies with the degree of like and ad-

miration that the students have for the teacher. But

the impact is invariably great in elementary grade

schools and up to, I would say, junior high school.

There are, I think, numerous biographies and auto-

biographies of people who report on the impact that

an admired teacher had on their own development and

personality. I think that it is indisputable that when

you have daily and intimate and extended contact with

a person much older than you and you are very young

and plastic, so to speak, that person will, whether he

wants to or not, influence you and participate in the

formation of your personality.” (Id., pp. 45-46)

The vital center of Dr. van den Haag’s testimony is

that children are sent to school to learn useful and ac-

cepted patterns of society and to internalize them. “They

internalize them not so much by what the teacher for-

mally teaches but what he is and does in their relation

to him.”

Dr. Buchanan, presently Dean of the School of Edu-

cation at Delta State University, who served in the ca-

pacities of principal, assistant principal and superintendent

for over 22 years in school systems throughout Mississippi

agreed with the other authorities, testifying that “teachers

teach by concept and by example”. (Tr., p. 32, May 31,

1973) Based upon his many years of working directly

with teachers and students, he held to the view that:

“In the formative years, in the beginning years, the ele-

mentary, * * * the teacher has more impact, more in-

fluence even than parents in many cases. And certainly

as much in most cases. And most of all in many cases.”

(Id., pp. 32, 33) The sum of his testimony was that it

would be very destructive to a school system not only as

to the students but as to the other teachers and parents

to allow parents of illegitimate children to teach in the

system.

Mrs. Ruby Nell Stancill, a teacher in the Drew school

system for 22 years, testified that a teacher has a great

responsibility in the moral and character development of

school children since children desire to imitate their

teachers. It was her opinion that a teacher’s conduct and

life style have a great influence upon the students. (Tr.

96-7, May 31, 1973) She expressed concern that it would

be very difficult if not impossible to explain why an in-

dividual should not give birth to a child out of wedlock

if one or more teachers in the district had so done. (Id.,

p. 101)

SUMMARY OF ARGUMENT

There is no right derived from or protected by the

Constitution of the United States for unwed persons to

bear illegitimate children. Therefore, the failure of de-

fendants to employ instructional personnel based upon such

status does not impinge upon a constitutional right.

The school district has a right and a duty to promul-

gate reasonable rules in regard to employment of instruc-

tional personnel to meet the special circumstance of the

school district. The rule in question is constitutional and

was so applied in this case.

The defendant school district, faced with the grave

problem of an alarming rate of increase as to illegitimate

births among its students, properly applied a rule which

had been formulated based upon the distilled wisdom of

educators and others possessing expertise in this field. It

is beyond cavil that teachers and teacher aides who have

wilfully committed certain illicit acts, which acts have

placed them into the status of unwed parents of illegitimate

children, cannot function properly in their role as “educa-

tor, adviser, friend and, at times, parent-substitute.” It is

self-evident that such persons regardless of their present

state of morality cannot serve as a proper “role model” for

the children attending school in the Drew Municipal Sepa-

rate School District. Again, we emphasize that the rule

does not concern itself with the present status of morality

of an individual but serves the office of protecting the stu-

dents from being subjected to improper “role models” in

their educational training. The Court is on judicial rec-

ord that in certain areas of human involvement, appear-

ance is sometimes exalted over substance. The Court with

Mr. Justice Marshall as its organ announced that:

“Moreover, even if there is no showing of actual bias

in the tribunal, this Court has held that due process

is denied by circumstances that create the likelinood

or the appearance of bias.” Peters v. Kiff, 407 U.S.

493, 33 L.Ed.2d 83, 92 S.Ct. 2163. (Emphasis added)

If appearances rise to the dignity of constitutional rec-

ognition when an adult voluntarily or by fortune is placed

in circumstances which may dictate his or her future for

a finite period, can it be gainsaid that appearances (role

models) are of even greater importance in circumstances

of an individual during his or her formative years which

dictate their entire future?

ARGUMENT

The district court’s finding that the defendants’

failure to employ the plaintiffs was based upon a con-

stitutionally impermissible reason, i.e., the bearing

of illegitimate children, conflicts with the Court’s de-

cisions in Board of Regents v. Roth, 408 U.S. 564, 33

L.Ed.2d 548, 92 S.Ct. 2701, and Perry v. Sindermann,

408 U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694.

The district court lacked jurisdiction to consider these

claims for employment. 28 U.S.C. Section 1343 requires

the presence of a constitutional right. Where employment

is denied or terminated, some protected interest in “lib-

erty” or “property” rooted in the Constitution must be im-

plicated to grant jurisdiction. Board of Regents v. Roth,

supra. In the case of the new applicant, Andrews, there

is no “right” to employment such as would confer juris-

diction; there is only a countervailing duty of the State not

to infringe certain definable constitutional guarantees.

Whatever actionable right to employment exists springs

only from a constitutionally protected interest. Plaintiff

Rogers, who was not rehired, has failed to allege the ex-

istence of any rules, tenure or understanding that “would

justify any legitimate claim of entitlement to continued

employment.” Perry v. Sindermann, supra.

Both claims, if they lie, must rest on the asserted

right to be free of barriers that penalize parents of illegiti-

mate children. Is such status constitutionally protected?

If it is, it rests on some penumbral First Amendment right

to complete liberty of procreation. True enough, certain

activities relating to marriage are in this zone of personal

privacy, Roe v. Wade, 410 U.S. 113, 35 L.Ed.2d 147, 93

S.Ct. 1409, but the Court has confined this constitutional

right to sexual activity within the confines of marriage.

“Marriage and procreation are fundamental to the very

existence and survival of the race.” Skinner v. Oklahoma,

316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). Again,

the rights growing from childbirth are “. . the right of

the individual to marry, establish a home, and bring up

children.” Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625,

67 L.Ed. 1042 (1924). Plaintiffs have misread these cases

and have in effect found a fundamental right to procreate

outside marriage which does not exist. Where race is not

a factor, states have a wide latitude in prohibiting illicit

conduct, none of which could be characterized as constitu-

tional. McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283,

13 L.Ed.2d 222 (1964). Thus, this suit for employment

must rise or fall on the existence of constitutional protec-

tion for the activity practiced. Unless this protection is

present, the state may deny a benefit to a person without

recourse.

Neither this Court nor any other court has ever placed

its imprimatur upon the bearing of illegitimate children.

Conversely, the Court has always recognized < sovereign’s

justified concern and interest in the sanctity, preservation

and encouragement of marriage and has repeatedly upheld

the sovereign’s right to enact certain laws to that end,

e.g., statutes dealing with bigamy, adultery, bastardy, etc.

Marriage is the very cornerstone of western civiliza-

tion, and any element which might tend to erode this

foundation is and should be of serious concern to all. The

Chief Justice acknowledged for the Court in Boddie v.

Connecticut, 401 U.S. 371, 374, 28 L.Ed.2d 113, 91 S.Ct.

780, “the basic position of the marriage relationship in

this society’s hierarchy of values.”

This Court has long been on record that rules, regula-

tions and policy which proscribe conduct which is inimical

to the sanctity of marriage are not only constitutional but

are praiseworthy. In a somewhat analogous case to the

case sub judice the Court upheld an Act which denied the

right to vote to any person who was in the “status” of a

bigamist or polygamist. The Court opined that the Act

did not proscribe the commission of the offense but rather

the “status”. The Court was of the opinion that Con-

gress had the authority to constitutionally attack such

“status” and reasoned that:

“For certainly no legislation can be supposed more

wholesome and necessary in the founding of a free,

selfgoverning commonwealth, fit to take rank as one

of the co-ordinate States of the Union, than that which

seeks to establish it on the basis of the idea of the

family, as consisting in and springing from the union

for life of one man and one woman in the holy estate

of matrimony; the sure foundation of all that is stable

and noble in our civilization, the best guaranty of that

reverent morality which is the source of all benef-

icent progress in social and political improvement.

And to this end, no means are more directly and im-

mediately suitable than those provided by this Act,

which endeavors to withdraw all political influence

from those who are practically hostile to its attain-

ment.” Murphy v. Ramsey, 114 U.S. 15, 29 L.Ed.

47, 5 S.Ct. 747

Sounding the same moral note the Court in Davis v.

Beason, 133 U.S. 333, 33 L.Ed. 637, 10 S.Ct. 299 admonished

that such conduct:

Tend[s] to destroy the purity of the marriage

relation, to disturb the peace of families, to degrade

woman and to debase man. Few crimes are more

pernicious to the best interests of society and receive

more general or more deserved purnishment. To ex-

tend exemption from punishment for such crimes

would be to shock the moral judgment of the com-

munity.”

Murphy and Davis were cited by this Court as recently

as June 24, 1974 in Richardson v. Ramirez, 418 U.S. 24, 41

L.Ed.2d 551, 94 S.Ct. 2655.

Although writing in dissent in Boddie, supra, no mem-

ber of the Court disagreed with Mr. Justice Black’s char-

acterization of marriage:

“It is not by accident that marriage and divorce have

always been considered to be under state control. The

institution of marriage is of peculiar importance to

the people of the States. It is within the States that

they live and vote and rear their children under laws

passed by their elected representatives. The States

provide for the stability of their social order, for the

good morals of all their citizens, and for the needs of

children from broken homes. The States, therefore,

have particular interests in the kinds of laws regu-

lating their citizens when they enter into, maintain,

and dissolve marriages.” 401 U.S. 390

Although the Court has never condemned the issue of

illicit unions, it has in the past allowed a state law to stand

against a constitutional attack, which law came down

hard upon the illegitimate issue rather than the parents.

Labine v. Vincent, 401 U.S. 532, 28 L.Ed.2d 288, 91 S.Ct.

1017.

II.

The school district rule, neutral as to sex and

race, does not violate the Due Process Clause and/or

Equal Protection Clause of the Fourteenth Amendment

to the Constitution of the United States.

There is perhaps no more basic precept of law than

that the enactments of a legislative body are presumed to

be valid. The burden of proving them invalid is a heavy

one and rests squarely upon the plaintiffs in this case.

The Court in F. H. A. v. Darlington, 358 U.S. 84, 90, 91,

3 L.Ed.2d 132, 137, 79 S.Ct. 141, in addressing itself to the

constitutional validity of a section of the National Hous-

ing Act, stated:

“If we take as our starting point what the Court said

in the Sinking Fund Case, 99 U.S. 700, 718, 25 L.Ed.

496, 501—‘every possible presumption is in favor of

the validity of a state statute, and this continues until

the contrary is shown beyond a rational doubt. We

do not see how it can be said that the 1954 Act is un-

constitutional as applied.”

The presumption of constitutionality of a statute is

the postulate of constitutional adjudication. New York v.

O’Neill, 359 US. 1, 3 L.Ed.2d 585, 79 S.Ct. 564.

In Salsburg v. Maryland, 346 U.S. 545, 550, 98 L.Ed.

281, 288, 74 S.Ct. 280, the Court announced that:

„[Wie do not sit as a super legislature or a censor.

‘To be able to find fault with a law is not to demon-

strate its invalidity. It may seem unjust and oppres-

sive, yet be free from judicial interference. The prob-

lems of government are practical ones and may justify,

if they do not require, rough accommodations—illogi-

cal, it may be, and unscientific.’” (cases cited omitted)

In McGowan v. Maryland, 366 U.S. 420, 425, 426, 6

L.Ed.2d 393, 399, 81 S.Ct. 1101, Mr. Chief Justice Warren,

speaking for the Court, enunciated that:

„Although no precise formula has been developed,

the Court has held that the Fourteenth Amendment

permits the States a wide scope of discretion in en-

acting laws which affect some groups of citizens dif-

ferently than others. The constitutional safeguard is

offended only if the classification rests on grounds

wholly irrelevant to the achievement of the State’s

objective. State legislatures are presumed to have

acted within their constitutional power despite the fact

that, in practice, their laws result in some inequality.

A statutory discrimination will not be set aside if any

state of facts reasonably may be conceived to justify

Mr. Justice Black, speaking for the Court in Ferguson

v. Skrupa, 372 U.S. 726, 730, 10 L.Ed.2d 93, 97, 83 S.Ct.

1028, stated that [wle have returned to the original con-

stitutional purpose that courts do not substitute their so-

cial and economic beliefs for the judgment of legislative

bodies, who are elected to pass laws.“ Further, at 372 U.S.

732, we find the admonition that “[s]tatutes create many

classifications which do not deny equal protection; it is

only ‘invidious discrimination’ which offends the Consti-

tution.”

The Chief Justice in his dissent in Vlandis v. Kline,

412 US. 441, 462, 37 L.Ed.2d 63, 77, 93 S.Ct. 2230, recog-

nized that:

“literally thousands of state statutes create classifica-

tions permanent in duration, which are less than per-

fect, as all legislative classifications are, and might be

improved on by individualized determinations so as

to avoid the untoward results produced here due to

the very unusual facts of this case. Both the anomaly

present here and the arguable alternatives to it do not

differ from those present when, for example, a State

provides that a person may not be licensed to practice

medicine or law unless he or she is a graduate of an

accredited professional graduate school; a perfectly

capable practitioner may as a consequence be barred

‘permanently and irrebuttably’ from pursuing his call-

ing without ever having an opportunity to prove his

personal skills.”

The rule in question serves a legitimate state interest

and has a rational relationship to such interest and does

not conflict with the Fourteenth Amendment to the Con-

stitution of the United States.

The Court announced in Adler v. Board of Education,

342 U.S. 485, 493, 96 L.Ed. 517, 524, 72 S.Ct, 380, that,

„a] teacher works in a sensitive area in a schoolroom.

There he shapes the attitude of young minds towards

the society in which they live. In this, the State has

a vital concern. It must preserve the integrity of the

schools. That the school authorities have the right and

the duty to screen the officials, teachers and employees

as to their fitness to maintain the integrity of the

schools as a part of ordered society, cannot be doubted.

One’s associates, past and present, as well as one’s

conduct, may properly be considered in determining

fitness and loyalty. From time immemorial, one’s

reputation has been determined in part by the com-

pany he keeps.”

The above referred to duty and right of a school dis-

trict was reaffirmed in Beilan v. Board of Ed. of Phila., 357

US. 399, 2 L.Ed.2d 414, 78 S.Ct. 1317.

When the Court was again called upon to address itself

to the right and duty of a state in regard to public educa-

tion and the employment of teachers, admonished that

“[t]here can be no doubt of the right of a State to investi-

gate the competence and fitness of those whom it hires to

teach in its schools, as this Court before now has had

occasion to recognize.” Shelton v. Tucker, 364 U.S. 479,

485, 5 L.Ed.2d 231, 235, 81 S.Ct. 247. In support of this

proposition, the Court cited Adler v. Board of Education,

supra. Continuing, Mr. Justice Stewart, speaking for the

Court, affirmed the proposition announced in Beilan, supra,

that there is “no requirement in the Federal Constitution

that a teacher’s classroom conduct be the sole basis for

determining his fitness. Fitness for teaching depends on

a broad range of factors.”

Although the Court in Pickering v. Board of Educa-

tion, 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731, upheld a

teacher’s right to criticize the school board (a First Amend-

ment right not present in the action sub judice) in CSC v.

Letter Carriers, 413 U.S. 548, 564, 37 L.Ed.2d 796, 808, 93

S.Ct. 2880, Mr. Justice White, speaking for the majority,

recognized that Pickering stands for the proposition that

“the government has an interest in regulating the conduct”

of its employees significantly different from those it pos-

sesses in connection with the citizenry in general.

Mr. Justice Powell in his concurring opinion in Cleve-

land Board of Education v. LaFleur, 414 U.S. 632, 656, 39

L.Ed.2d 52, 69, 94 S.Ct. 791, recognized that

“[s]chool boards, confronted with sensitive and widely

variable problems of public education, must be ac-

corded latitude in the operation of school systems and

in the adoption of rules and regulations of general

application.”

We submit to the Court that the rule promulgated by

the Drew Municipal Separate School District does not

operate against the present moral status of an individual

school teacher or teacher aide, but operates against the

example which such a teacher or teacher aide provides

the students in the said school district. Both the district

court and the court of appeals have opted for the position

that an individual who seeks employment with the defen-

dant school district should be given a due process hearing

to determine whether or not his or her status as an unwed

parent of illegitimate children would materially interfere

with the educational processes of the school district. We

suggest to the Court that such a hearing in and of itself

would cause material disruption of the said educational

processes and would avail little since it is not the present

moral character of the individual that is in question but

the individual’s role in regard to the students attending

school in the defendant school district. Mr. Justice Pow-

ell in his dissenting opinion in Goss v. Lopez, 419 US.

565 [No. 73-898], decided January 22, 1975, joined in by

the Chief Justice, Mr. Justice Blackmun, and Mr. Justice

Rehnquist, properly stated the role of a teacher when he

stated that:

“The role of the teacher in our society historically has

been an honored and respected one, rooted in the ex-

perience of decades that has left for most of us warm

memories of our teachers, especially those of the for-

mative years of primary and secondary education.”

He further acknowledged that a teacher must occupy

many roles, such as “educator, adviser, friend and, at

times, parent-substitute.” Although speaking in another

context, Mr. Justice Powell’s recognition that [wle have

relied for generations upon the experience, good faith and

dedication of those who staff our public schools” is equally

applicable to the situation now before the Court.

This Court acknowledged in Brown v. Board of Educa-

tion of Topeka, 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686, that

public schools are the principal instrument[s] in awaken-

ing the child to cultural values.” 347 U.S. 493. While this

acknowledgement was of importance then, it is of greater

moment today as recognized by Mr. Justice Powell in

Goss, supra:

“In an age where the home and church play a dimin-

ishing role in shaping the character and value judg-

ments of the young, a heavier responsibility falls upon

the schools.”

The beliefs of at least two of plaintiffs’ experts are at

total war with this universally recognized principle. Since

such fallacious beliefs underpin their expert conclusions,

such conclusions are of little value.

Dr. Edmund Gordon testified that while schools have

an influence on the development of specific academic skills,

they “tend to have relatively little impact on the so-called

moral development of youngsters.” (Dep.—Gordon, p. 25)

It is interesting to note and a’so somewhat disturbing that

Dr. Gordon is wed to the philosophy that in the selection

of teachers he:

“would probably shy away from the person who has

completely abstained from sexual behavior, because,

again in our society that is so atypical a pattern of

behavior as to suggest some possible personal problem

—less so, I would say, than a person who happens to

have become pregnant possibly by accident out of ex-

pression of normal aspect of behavior.” (Id., p. 26)

Adhering to this minority view, plaintiffs’ witness,

Ronald Samuda, added that “we have negligible effect

when we attempt to teach values directly in the classroom.”

(Tr., p. 8—March 19, 1973—Samuda) His testimony is

further discredited by his irresponsible statement, un-

supported by any evidence, that a great majority of the

practicing teachers throughout the country * * * have par-

ticipated in extramarital sex.” (Id., p. 5)

Without even pausing for reflection upon such an all-

condemning declaration, he plunged ahead as judge and

jury and convicted the entire student body of Stanford

University and three other unnamed universities of en-

gaging in “premarital sex.” (Id., p. 25) .

Samuda’s testimony and own moral values were

summed up in one short answer when he emphatically

admitted that he “believed in situation ethics.” (Id., p. 22)

The only concession that the witness made to the moral

values which prevail in this country today is that when

asked about the advisability of including homosexuals in

teaching positions, in schools, he said he would like to

think about that before forming an opinion. (Id., p. 34)

This constitutionally unassailable principle comes into

even sharper focus when viewed in the light of, the factual

situation of the Drew School District. The total student

enrollment for the district is 1,200. During the school year

1971-72 there were 28 schoolgirl pregnancies (Tr., p. 8,

March 16, 1973, Pettey) reported in the age group of 13 to

17 years. It takes little knowledge of arithmetic to figure

that this is approximately 10% of the number of schoolgirls

of childbearing age in this school district.

6. Approximately one-half of the school population —

is female and approximately one-half of the group is of

bearing age (300).

This alarming rate of illegitimacy, coupled with the

35.2% of illegitimate births in Sunflower County (1971)"

is more than ample support for this rule. (Pls. Exhibit

#3) Armed with these figures, school administrators

would be derelict in their duties not to fashion some type

of policy to attempt to arrest this rising threat to the over-

all moral values of the community.

The Court of Appeals was of the opinion that there

was no evidence in the record, other than speculation and

assertions of opinion, to support the contention that the

presence of parents of illegitimate children in a scholastic

environment contributes to schoolgirl pregnancies. Al-

though we submit that the statistics plus the opinions of

school personnel and educational experts (including plain-

tiffs’ witnesses) support such contention, the Court is on

the record that the school district carries no such burden.

This Court in Paris Adult Theatre I v. Slaton, 413 U.S.

49, 60-63, 37 L.Ed.2d 446, 93 S.Ct. 2628, the Chief Justice,

writing for the Court, stated:

“But, it is argued, there are no scientific data

which conclusively demonstrate that exposure to ob-

scene material adversely affects men and women or

their society. It is urged on behalf of the petitioners

that, absent such a demonstration, any kind of state

regulation is “impermissible.” We reject this argu-

ment. It is not for us to resolve empirical uncertainties

underlying state legislation, save in the exceptional

case where that legislation plainly impinges upon

rights protected by the Constitution itself. (Footnote

7. The rule in question will not help to decrease the

illegitimate births among the school tion but will have an

impact u the overall future county statistics by feeding into

the population adults who have been taught to disfavor bearing

out of wedlock.

omitted) Mr. Justice Brennan, speaking for the Court

in Ginsberg v. New York, 390 U.S. 629, 642-643, 20

L.Ed.2d 195, 88 S.Ct. 1274 (1968), said: “We do not

demand of legislatures ‘scientifically certain criteria of

legislation.’ Noble State Bank v. Haskell, 219 U.S. 104,

110, [55 L.Ed. 112, 31 S.Ct. 186.“ Although there is no

conclusive proof of a connection between antisocial be-

havior [413 U.S. 61] and obscene material, the legis-

lature of Georgia could quite reasonably determine

that such a connection does or might exist. In deciding

Roth, this Court implicity accepted that a legislature

could legitimately act on such a conclusion to protect

“the social interest in order and morality.” Roth v.

United States, 354 U.S., at 485, 1 L.Ed.2d 1498, quoting

Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 86

L.Ed. 1031, 62 S.Ct. 766 (1942). (Footnote omitted).

From the beginning of civilized societies, legisla-

tors and judges have acted on various unprovable as-

sumptions. Such assumptions underlie much lawful

state regulation of commercial and business affaizs.

(Cited cases omitted) 413 U.S. 60, 61.

The fact that a congressional directive reflects un-

provable assumptions about what is good for the peo-

ple, including imponderable aesthetic assumptions, is

not a sufficient reason to find that statute unconstitu-

tional. 413 U.S. 62.

If we accept the unprovable assumption that a

complete education requires certain books, see Board

of Education v. Allen, 392 U.S. 236, 245, 20 L.Ed.2d

1060, 88 S.Ct. 1923 (1968), and Johnson v. New York

State Education Depart., 449 F.2d 871, 882-883 (C.A.2

1971) (dissenting opinion), vacated and remanded

to consider mootness, 409 U.S. 75, 34 L.Ed.2d 290, 93

S.Ct. 259 (1972), id., at 76-77, 34 L.Ed.2d 290 (Marshall,

J., concurring), and the well nigh universal belief that

good books, plays, and art lift the spirit, improve the

mind, enrich the human personality, and develop char-

acter, can we then say that a state legislature may not

act on the corollary assumption that commerce in

obscene books, or public exhibitions focused on obscene

conduct, have a tendency to exert a corrupting and

debasing impact leading to antisocial behavior? “Many

of these effects may be intangible and indistinct, but

they are nonetheless real.” American Power & Light

Co., supra, at 103, 91 L.Ed. 103. Mr. Justice Cardozo

said that all laws in Western civilization are “guided

by a robust common sense. Steward Machine

Co. v. Davis, 301 U.S. 548, 590, 81 L.Ed. 1279, 57 S.Ct.

883, 109 A.L.R. 1293 (1937). The sum of experience,

including that of the past two decades, affords an

ample basis for legislatures to conclude that a sensitive,

key relationship of human existence, central to family

life, community welfare, and the development of

human personalit, can be debased and distorted by

crass commercial exploitation of sex. Nothing in the

Constitution prohibits a State from reaching such a

conclusion and acting on it legislatively simply be-

cause there is no conclusive evidence or empirical

data. 413 U.S. 63.”

The District Court and the Court of Appeals condemn

the rule in question on the ground that such rule does not

allow for the innocent“ parents of illegitimate children

who may not serve as an improper “role model.” Rules

— ae Saas cane Although these ex-

and regulations that may in practice not be perfect but

which serve a valid state interest rather than being con-

demned have been approved as constitutional by this

Court. In Weinberger v. Salfi, No. 74-214... U.S. ........

45 L.Ed.2d 522, 95 S.Ct. 2457, this Court recognized that

a rule which denied social security benefits to a surviving

wife or a stepchild who had their respective relationships

to a deceased wage earner for less than nine months prior

to his death “undoubtedly excludes some surviving wives

who married with no anticipation of shortly becoming

widows.” The Court further was of the opinion that “it

likewise may be true that the requirement does not filter

out every such claimant” because of certain circumstances

while acknowledging that the regulation may cut against

and exclude widows who were truly “innocent” of any

wrongdoing or sham arrangements. Even so this Court

declared the regulation to be constitutional.

Striking this same judicial chord, the United States Cir-

cuit Court of Appeals for the Eighth Circuit upheld as

constitutional a school district policy that prohibited em-

ployment of a husband and wife in an administrative-

teacher relationship. Keckeisen v. Independent School

District, 509 F.2d 1062, cert. denied, 44 US.L.W. 3194

(Oct. 6, 1975). The policy was formulated on the assump-

tion that such a husband-wife relationship may cause in

the future a conflict of interest and further may create a

morale problem among the other teachers. Although there

was no proof that the relationship of the plaintiff, princi-

pal of the school, and his wife, a teacher at the same

school, caused any problems and in fact the proof was to

the contrary the Court opined that where “possibilities

of conflicts of interest exist, the Board should [not] be

placed under a constitutional burden of having to wait

until a conflict of interest becomes a problem situation

before it can take action.” p. 1066. The Court further was

of the opinion that such a regulation did not impinge upon

the plaintiff's right to marry. In answer to the plaintiff's

contention that the regulation includes couples who may

not have a conflict of interest, the Court answered:

“We have no doubt that in many cases where hus-

bands and wives are employed in supervisor-super-

visee capacities, the married couple make an exemp-

lary effort to maintain fairness, but we cannot say a

policy based on the assumption that married couples

are susceptible to the natural prejudices of their re-

lationships is irrational, arbitrary, or capricious.” p.

1066.

We suggest to the Court that the case law, expert

testimony presented at trial, common experiences and just

plain common sense underpin rather than undermine the

policy of the Drew Municipal School District. Viewed in

light of the facts that exist in the school district and the

county as to the high rate of illegitimate births, the ques-

tioned policy is not only reasonable but compelling. Such

a policy is necessary to vouchsafe for the school children

of Drew teachers to whom they may look not only for

cognitive knowledge but as “adviser, friend and, at times,

parent-substitute.” How can it be seriously gainsaid that

the questioned policy serves a legitimate school interest

which meets all constitutional commands.

Plaintiffs attempt to counter defendants’ argument by

asserting that the act of giving birth to an illegitimate

child is not in conflict with the moral values of the legal

community. After plaintiffs’ attorney advised the Wit-

ness Gordon that in 1971 in Sunflower County, Missis-

sippi, where the Drew School District is located, 44.6%

of the live, non-white births were illegitimate he stated

in effect that it was therefore his opinion that the bearing

of illegitimate children was not contra to the moral values

of the local non-white community. (Dep. Gordon, p. 28)

The witness further opined that there exist in the

local community two separate and different cultures; i.e.,

a white culture with its own moral values and lifestyle,

and a non-white culture with its own moral values and

lifestyle. (Dep. Gordon, pp. 29-30, May 29, 1973) When

questioned about the school policy as to parents of ille-

gitimates, he stated that “to try to impose the same stan-

dard on both cultures, now I think, is not only incorrect

but discriminatory.” (Id., p. 30) In further recognition

of his beliefs, he condemned the school district for its ef-

forts to arrest this alarming rate of illegitimate births by

announcing:

“In this particular instance I am suggesting that in a

society where a particular pattern of behavior is the

norm, to rule that pattern of behavior out as illegal,

unacceptable, discriminates against the cultural group

that practices that behavior.” (Id., p. 33)

In a further attempt by the plaintiffs to establish that

giving birth to an illegitimate child is not against the

moral values of the local non-white community, they pre-

sented the testimony of Ms. Mae Bertha Carter, a black

citizen of the Town of Drew to the effect that “morals

have nothing to do with an unwed mother” having an il-

legitimate child. (Tr., p. 18—May 31, 1973) The witness

readily admitted that she had a “child that was the parent

of an illegitimate child.” (Id., p. 19) Even though the

witness held to these beliefs, she admitted on cross-ex-

amination that the Drew Public Schools had a problem

with unwed schoolgirl pregnancies. (Id., pp. 19-20)

In furtherance of this position, plaintiffs called as a

witness Ms. Hamer, a black citizen of Sunflower County,

who testified that the actions of these plaintiffs and their

conduct in regard to bearing illegitimate children “as per

the black community are quite moral.” (Tr., p. 91—March

20, 1973)

Pressing forward with this same point the plaintiffs

offered the testimony of Violet Burnett, a black citizen

of the community, who is an unwed parent of an illegiti-

mate child and had previously been employed with the

Drew School District. The tenor of her testimony is re-

flected from the following colloquy:

Q Well, do you feel that it would be wrong for

any of the students at the Drew High School to en-

gage in sexual intercourse?

THE WITNESS:

I feel like if that’s what they want, they can do

it. That’s just the way I feel.

MR. TERNEY:

Q In other words, if you were teaching at Drew

and some school girl came up to you, 13, 14, 15 years

old, and she looked up to you as a teacher and asked

you, said she really had a big problem, she wanted to

discuss it with you, she wanted to have sexual inter-

course with her boyfriend, you would tell her, “It’s

all right, go right ahead“?

A I would tell her if that's what she wanted and

she felt like that’s what she wanted to do, go right

ahead, (Tr., p. 32—March 20, 1973)

The plaintiff Rogers was questioned about her moral

beliefs in this regard and such is documented by the fol-

lowing:

Q Now, what is your feeling about the moral

issue? Is it right or wrong for you or for any in-

dividual to have sexual intercourse and not be

married?

A Well, I can’t say it's right and I can’t say it's

wrong. Because I think it’s left up to you as long as

you are not hurting anyone else. I think you should

do whatever you feel is right.

Q Do you intend to have any more children?

A I don't know.

Q. Haven't decided?

A No.

Q But you may have more children, even though

you are not married?

A I don't know. (Tr., p. 43, March 20, 1973)

The moral values of the plaintiff Andrews have been

previously indicated by her testimony concerning the falsi-

fication of her application and her testimony as to the moral

aspect of having illegitimate children is substantially the

same as that of the plaintiff Rogers. (Tr., pp. 60 & 64 & 67,

March 20, 1973)

It is somewhat ironical that in the year 1975 plaintiffs

who are members of the class which sued this school dis-

trict to bring about total integration are now in all prac-

ticality asking this Court to turn back the clock and to

recognize and treat the populace of the Drew school district

as two separate and distinct cultural groups. Not only was

this a surprise to the defendants but the district judge

after hearing certain testimony was prompted to ask the

witness if he was of the opinion that the “Supreme Court

was wrong in Brown versus Board of Education in ordering

integration of education.” (Tr., p. 11, March 19, 1973)

Because this interpretation of the testimony may appear

incredulous we set out the following for the benefit of the

Court:

Let me ask you this question. In terms of

the rule itself there has been testimony to the effect

that the rule was created in order to create a proper

image for black children. Is it possible to infer that

this rule, in fact, is detrimental to the best interests of

black children in a situation where a majority or a

large number of those children, say a third or more, a

large number of those children come from homes with

a matriarch or come from homes which have an un-

wed parent?

A Well, as a matter of fact, I think that to infer

that a teacher must be a middle class person could

almost be psychologically detrimental to black chil-

dren. Because what you are really doing is intro-

ducing a foreign, an alien value system. There are dif-

ferences between the value system of black children

and that of white children, and these have historical

antecedents. It is based upon the fact of slavery.

Where does the matriarchal society come from? Why?

Is it a natural and ordinary, an African thing? In my

opinion, it is not. Africans have a very, very strict

code of morals. What has occurred in the interim is

that as a result of slavery the male slaves were de-

liberately taken away from the family, and this was

done in order to prevent unity. And also, the tribal

groups were broken up, the family was broken up

and males were deliberately removed from the family

so that there would not be rebellion. This was under-

standable because slavery was a fact. Now, this his-

torical fact, in my opinion, is the reason why you have

a sort of matriarchal tendency within the black com-

munity.

—

Now, the point I am trying to make is that there

is a kind of value system within the black community,

there is another kind of value system within the mid-

dle class white community. And these are different.

And when you place a white Anglo-Saxon, Protestant,

upper middle class person in a classroom to teach

black children, you have conflicting values. And, in

fact, I think that you would tend to produce an even

more psychologically damaging effect than if you have

this divergence of class structure. _

Q Hence the real effect of this rule, in essence,

to black children is indeed a very damaging one in

terms of their personal psychologies?

A In my opinion, to introduce strange and alien

values into a classroom is detrimental.

THE COURT:

Do you think, then, the Supreme Court was wrong

in Brown versus Board of Education in ordering inte-

gration of education?

THE WITNESS:

No, I wouldn't go so far as to say that, Your

Honor. What I am trying to say is that we need

to look at the way in which we are going to organize

educaticn in view of the fact that we have tried to be

fair. But it’s not a simple matter. I don’t think we

can just suddenly say, “All right, let’s put a lot of

white teachers into black classrooms and then we can

produce this kind of culture.” It’s not going to hap-

pen that way. The black people are a special kind

of people. They are almost like a foreign people.

I happen to have been born, for example, in Jamaica.

There are differences between my value structure and

the value structure of my colleagues who are white

Americans. This is what I am saying. That there are

differences in value and that we must be cognizant

of these and, in fact, to attempt to introduce new

values can be psychologically damaging to these chil-

dren. (Tr., pp. 9-12, March 19, 1973)

Q Are you familiar with the moral values in

this section of the country, of the United States?

A I believe so.

Q And you have told the Court that in your

opinion the black race holds different moral values and

standards than the white race?

A Different values. A different set of values, a

different set of psychological conditions. And that

these psychological conditions have been determined

by the historical antecedents of each particular group

of people. And that there is a different value system

within the white middle class community as opposed

to the black community, because the black community

has suffered many hundreds of years of slavery. (Id.,

p. 23)

MR. TERNEY:

Q Your testimony today, then, Doctor, is to the

effect that in minority groups, and particularly in the

black race, that in the home that there is a need for

a strong dominate parent figure outside of the home

that does not exist in the home, is that correct?

A Not necessarily. This is a presumption that

has been made. The point that I have been making is

this. There are many unscientific and untested hypo-

theses about the behavior of people. And that we

tend to assume that it must be right simply because

it is right and it is a part of the Anglo-Saxon, Protes-

tant ethic. And the Anglo-Saxon Protestant system

happens to be one kind of system, which is not nec-

sarily true for all people.

Q. Then, Doctor, do you feel it would be educa-

tionally sound, more sound than the situation we have

now, for the school districts to employ black teachers

for black classrooms?

A (No response)

Q Rather than a white teacher over a black

classroom?

A In my opinion, it would be sound if—given

two situations. And assuming that I were the super-

intendent of a district and I had two people of equal

qualifications and where I had a predominantly black

classroom and you were asking me which of these two

people would I employ, in my opinion, I would tend

to employ the black person. Because that is one other

way of producing the kind of climate and the kind of

affinity that is necessary for a good psychological at-

mosphere. (Id., pp. 28-29)

Plaintiffs have set sail upon a collision course with

prior decisions of this Court. The Court after years of

navigating through troubled waters has anchored in what

it has considered to be a safe harbor. Acknowledging that

it has not tied itself to the dock and still has room to drift

when necessary to accommodate special circumstances we

have serious doubts that the Court will veer from the bea-

con that no group has a constitutional right to preferen-

tial treatment based soley on race. We do not believe that

this Court will say to the Drew School District—“you

must recognize two cultures in your community and ac-

commodate them both”. No man can serve two masters.

Since this is an impossible mandate for this small rural

school district to follow, such a command, in effect, would

require these defendants to teach an alien doctrine to all,

both Black and White, that marriage and family were no

longer the cornerstone of this great nation but that such

had been replaced by “a number of cultures inside the

United States * * where formal marriage is not so much

the pattern but any variety of liaisons”. (Dep. Gordon, p.

29)

We urge the Court not to strike down a policy prom-

ulgated for a laudable purpose and in no way impinges

upon the constitutional rights of these plaintiffs. The

Court has always allowed latitude to the executive and

administrative bodies in determining the qualifications of

their employees. It has long been recognized by courts:

“That some human infirmities are beyond the control

of the applicant may be unfortunate but it does not

undermine the power of the Executive to hire only

those whose employment will ‘best promote the ef-

ficiency’ of the public service.” Scott v. Macy, 402

F.2d 644, 652 (Burger, Circuit Judge, dissent).

If this policy, born of necessity and reared in great

hope and expectation, can not survive the strictures of the

constitution then we hold faint hope for school adminis-

trators to fulfill their appointed role as guardians of the

educational processes of this nation. The demise of this

policy will cause irreparable damage to this small rural

school district and retard if not completely destroy its

efforts to “shape the attitude of young minds towards the

society in which they live“.

CONCLUSION

For the foregoing reasons, and on the basis of the au-

thorities cited, Petitioners urge the Court to declare the

policy in question to be constitutional and allow this small

rural school district to continue to carry out its function

—education “perhaps the most important function of state

and local governments”.

Respectfully submitted,