Petition — Morton v. Charles County Board of Education

Supreme Court brief1975

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Supreme Court, U. 5.

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OctToBeR TERM, 1975

No 75-609 |

JosePH H. Morton, ET AL., Petitioners,

CHARLES County Boarp OF EDUCATION, ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

JosePH L. Rau, JR.

JOHN SILARD

Exuuiotr C. LICHTMAN

Ravu, Smarp AND LICHTMAN

1001 Connecticut Avenue, N.W.

Washington, D.C. 20036

Mrs. JUANITA JACKSON MITCHELL

MITCHELL AND MITCHELL

1239 Druid Hill Avenue

Baltimore, Maryland 21217

Attorneys for Petitioners

JACK GREENBERG

JaMeEs M. Nasnrit III

JaMeEs ©. Gray, JR.

10 Columbus Circle

New York, New York 10019

—————————=——

Paess or Braon S. ADAMS Paintino, Inc., WasHiNnoton, D. C.

“4 > »

INDEX

Page

NS i eee eli eeneueueeueeds 1

PE er errr re ee 1

SS TOMIIGED 6.66 nos cecsccccctccescaseceses 2

CONSTITUTIONAL AND Statutory Provisions INvotvep 3

STATEMENT OF THB CAGED 2. nc cc cccccsccccccsesccccess 3

1. The Period of Segregation Prior to 1967 .... 4

2. Racially Discriminatory Employment Practices

Between 1967 and State Board Ruling in 1970 5

3. The State Board’s Discrimination Findings and

I cod dake shnwdeesedeceeed ses 8

4. Continuing Employment Discrimination after

BAS SETI Ree ere ee nee 10

5. The Complaint in This Case and the District

Es Coc cdcasnbncedbenwesences eda 11

6. The Court of Appeals’ Decision ............ 12

Reason For Grantina Tue Writ: Taxis Covrt’s Re-

view Is Requirep To Insure DeseGREGATION IN

Tue Facutty CoMPoNENT OF FORMERLY SEGREGATED

Uses Bates, BOUND occ cc ccccccccveccccess 13

I. The Decision Below Severely Erodes The Impor-

tant Principle That Shifts the Burden of Justifi-

eation to a School System Which Curtails Its

Black Faculty Component at the Time of Student

POGORTORITIEE occ ccccccccncccssccencccsecceces 14

II. The Decision Below Erodes This Court’s Wright

Ruling by Refusing to Apply its Objective Stand-

ard to the Faculty Desegration Area ........... 17

{II. A Major Constitutional Issue Arises From the

Lower Court’s Refusal to Honor and Give Effect

to The State’s Own Findings of the School

Board’s Discriminatory Practices ............. 19

I ikki 6c kn tiecedntscdndesseeidaedseocaes 24

ii CITATIONS

CASES: Page

Bradley v. School Board, 382 U.S. 103 » ae 16

Brewer v. Hoxie School District, 238 F.2d 91 (8th

Cir. 1956) ....cccccccccccccccccccccccccecscess 22

Brown v. Board of Education, 347 U.S. 483 (1954) 4, 15, 17

Brown v. Gaston Co. Dyeing Machine Co., 457 F.2d

1377, (4th Cir. 1972) .......ee cence cence eeeeeees 17

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) ...... 19

Chambers v. Hendersonville City Board of Education,

364 F.2d 189 (1966) .........eeeeeeeceees 2, 12, 14, 16

The Civil Rights Cases, 109 U.S. 3 (1883) ......+++-- 21

Ex parte Virginia, 100 U.S. 339, (1880) ......-++++- 21

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ........-- 21

Green v. County School Board, 391 U.S. 430 (1968) . .13,17

Griggs v. Duke Power Co., 401 U.S, 424 CBRE) wccees 19

Keyes v. School District No. 1, Denver, Colorado, 413

U.S. 189 (1978) ...cccccccccccecccvcccccvees 2,12, 14

McDaniel v. Barresi, 402 U.S. 39 (1971) .....+---+>- 22

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1DTB) on ccoccccccevccccccsccvcccnsceessensers 17

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211

(Sth Cir, 1974) ......ccceeeecceccveeesereerers 17

Reynolds v. Sims, 377 U.S. 533, (1964) ......+-.+++: 21

Rogers v. Paul, 382 U.S. 198 (1965) ....--.--+eeeees 16

Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.

EEA REALE SS EOI LCOS EP 17

Swann v. Board of Education, 402 U.S. 1 (1971) . .13, 16, 17

Trenton v. New Jersey, 262 U.S. 182 (1923) .....---- 21

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) .. 22

Vulcan Society v. Civil Service Commission, 490 F.2d

387 (2nd Cir. 1973) ...... Jasasaesbanss ses vans 19

Williams v. Mayor and City Council of Baltimore, 289

U.S. 96 (19BB) 2. cccccccccccccecvcsccccsccees 21

Wilson v. Board of Education, 234 Md. 561, 200 A.2d

G7 (1964) ...ccccccccccccccccsccccscevccsccees 22

Wright v. Council of City of Emporia, 407 U.S. 451

(1972) ..ccccccccceccccccvvccceecceccess 2, 12,17, 18

so Tem ¢t —_—~ --

ee ET I

Citations—Continued iii

Page

ConsTITUTIONS AND STATUTES:

United States Constitution, Fourteenth Amendment

passim

United States Code:

BB UB.C. 619546 (1) ..ncccccceccccccccsscscecs 2

eS a iidhanengeese o% 11

OG, BI ovis cedndcieccessduakes iia 5 11

BD Was GD occ ccc cccceersesscensscsendans 22

Emergency School Aid Act (20 U.S.C. §§ 1601 et seq) 6

Maryland Constitution, Article VIII §1 ............ 20

Maryland Code

BO TE, OO kc ccvicndccessWoncsuvevesesseces 20

Articde 77, GUIS 2... cccccscccccscccccccccesees 20, 21

MISCELLANEOUS:

Amicus Curiae Brief of National Education Associa-

tion in United States v. Georgia (5th Cir. No.

TRI occccccsevtccvevecccescssusccssevesves 14

Hearings Before Senate Select Committee on Equal

Educational Opportunity, 91st Cong., 2nd Sess.

(1970), 92nd Cong. Ist Sess. (1971) .........55: 14

Se ELS ———

IN THE

Supreme Court of the United States

OctToBeR TERM, 1975

No.

JosePpH H. Morton, ET AL., Petitioners,

Vv.

CHARLES County Boarp OF EDUCATION, ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

Joseph H. Morton, et al., petition for a writ of

certiorari to review the Judgment and Opinion of the

United States Court of Appeals for the Fourth Cir-

cuit.

OPINIONS BELOW

The Opinion of the Court of Appeals (App. A, p.

la infra) is unreported at this time. The Judgment

is reproduced as Appendix B, p. 16a, infra. The Opin-

ion of the District Court (App. C, p. 17a, infra) is

reported at 373 F.Supp. 394.

JURISDICTION

The Judgment of the Court of Appeals was entered

on July 24, 1975, and this petition for certiorari is

being filed within 90 days of that date. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1254

(1).

QUESTIONS PRESENTED

In a racial discrimination case against a previously

segregated school system, where petitioners proved

that at the time of, and immediately subsequent to,

dismantlement of the segregated system

(a) the percentage of black teachers and prin-

cipals sharply declined;

(b) the School Board made far greater efforts

to recruit whites than blacks;

higher qualifications standards than white appli-

eants; and

(d) assignments of teachers were made on the

basis of race

1. Did the majority of the Court of Appeals err in

declining, in accordance with Keyes (413 U.S. 189

(1973) ) and Chambers (364 F.2d 189 (4th Cir. 1966) ),

to hold that the burden shifts to the School Board to

justify its hiring and promotion practices by clear and

convincing evidence.

2. Did the majority of the Court of Appeals err in

declining to apply to the School Board’s hiring and

promotion practices the ‘‘effect’’ discrimination test

under Wright v. Council of City of Emporia, 407 U.S.

451 (1972) rather than a racial motivation standard.

3. Did the Court of Appeals err in refusing to honor

the Maryland State Board of Education’s findings of

discriminatory faculty practices by Charles County

school officials, and in refusing to enforce the State

Board’s mandate that those practices be discontinued.

4. Did the majority of the Court of Appeals err in

refusing to permit petitioners to maintain a class

action.’

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The pertinent portions of the Fourteenth Amend-

ment, the United States Code and the Maryland Code

are set forth as Appendix D, p. 51a, infra.

STATEMENT OF THE CASE

This case presents in bold relief a widespread prac-

tice of school districts undertaking student desegre-

gation to alter their faculty employment policies to

the prejudice of black teachers and administrators. It

arises in a ‘“‘Deep South’’ district whose student

bodies remained segregated until the late 1960s.’

When the Charles County Board of Education finally

desegregated its student bodies 13 years after Brown,

it immediately undertook radical changes in its faculty

1 While the class action question is presented in this case, we

do not make it a separate reason for granting the writ. If certiorari

is granted, we will contend that the dissenting judge of the Court of

Appeals was correct on the class action issue (see pp. 14a-15a, infra)

and that a reversal on the merits should be accompanied by reversal

on the class action question in order to provide fully effective relief.

? Charles County was a ‘‘ Deep South’’ community when it under-

took student desegregation in 1967 and it remains so. As the in-

vestigative Committee appointed by the Maryland State Board of

Education stated in its 1970 Report to the Board (A. 837), Charles

County ‘‘is still basically a rural society. The races are segregated

socially and economically. . . . The traditions of the Deep South

run deep. The County as a whole still tends to be resistant to

change.’’ (‘‘A’’ references are to the Joint Appendix in the Court

of Appeals. )

hiring and promotion practices: prior to 1967 the fac-

ulty of the school system had been almost 50% black,

and exactly half the schools had black principals. But

black teachers and principals deemed good enough for

black students were viewed by the school system in

a different light when it came to integrated schools and

classrooms. In 1967-68, when white students were

finallv to be taught by black teachers, the school system

initiated new hiring and promotion practices which

resulted in the precipitous decline of the percentage of

the system’s black faculty and black principals. In-

stead of continuing the half white, half black faculty

proportion, in 1967 the School Board began a consis-

tent policy of hiring four white teachers for each black.

Moreover, while the number of black principals re-

mained static, the number of white principals was

doubled. In a few short years the black teacher compo-

nent dropped from 44% to 27% and the blacks de-

creased from 50% to 30% in the school principal posi-

tions.

The issues arising from this course of action by the

School Board with respect to the system’s faculty

component are of paramount importance, for they af-

fect many hundreds of school districts across the na-

tion required to develop unitary school systems and

manv thousands of black administrators, teachers and

applicants for employment with these districts. A brief

review of salient facts and the proceedings in this case

will place these issues in proper perspective:

1. The Period of Segregation Prior to 1967

For many years after this Court’s 1954 decision in

Brown v. Board of Education, the Charles County

Board of Education continued to operate a segregated

- ane oe se

school system. As late as the 1964-65 school year, only

296 black students attended white schools and only 2

white students attended black schools in a system

whose student enrollment number 8,999, of whom 45

percent were black (A. 707-09). Full student desegre-

gation occurred for the first time in the 1967-68 school

year (A. 509-10, 707-13). While faculty segregation

had also been continued until the middle 1960's, the

district had continued to hire and promote substantial

numbers of qualified blacks, although to teach or su-

pervise almost exclusively black students. Thus in

1964-65, 50 percent of Charles County’s school princi-

pals were black, and in the last year before student

desegregation, 44.2 percent of the teachers were black

(A. 129-32, 704-13, 1180).

2. Racially Discriminatory Employment Practices Between

1967 and State Board Ruling in 1970

When the Charles County Board of Education final-

ly yielded to this Court’s rulings and integrated its

student bodies in 1967, this school system which had

previously hired an almost half-black faculty sud-

denly changed its hiring and promotion practices.

This change occurred at the very moment that black

teachers and principa's were reassigned to teach white

students. Thus, with the onset of student desegrega-

tion, a school system which had previously hired al-

most 50% black teachers began hiring four white

teachers for each black. That 80%-20% white-black

hiring quota which was implemented each year after

1967-68, soon caused a precipitous drop in the percen-

tage of black teachers in the Charles County School

System. In the first year of student desegregation, the

44.2 percent black faculty dropped to 37.3 percent (A.

1180). By 1969-70, two years later, the black teacher

component had declined another 7 points, to 30.4 per-

cent (A. 1180). Thus within the first three years after

desegregation of the student bodies, there was almost

a one-third decline in the proportion of black teachers ©

in the system. By the time of the 1973 irial, the black

teachers had decreased to 27 percent. Since respond- _

ents continued to hire according to the 4-1 ratio, the

faculty proportions continue to decline to an ultimate

one-fifth black faculty.

The sharp decline in black teacher hiring was paral-

leled among black principals. Of the 16 principals in

1964-65, eight were black. In the very first year of full

student desegregation, there were twice as many

white principals (12) as blacks (6). By the time of

the 1973 trial, the number of black principals re-

mained 8 while the number of white principals had

more than doubled, to 18 (A. 1125-32, 707-13, 129-32).°

The reduction in the black teacher-principal compo-

nent is explained by the School Board’s recruiting and

hiring practices during the crucial post-1967 period of

student desegregation. Thus, between 1967 and 1970

*In 1973 the Department of Health, Education and Welfare

investigated respondents’ application for funding under the Emer-

geney School Aid Act (20 U.S.C. §§ 1601 et seg.) and denied it.

HEW wrote in a letter to the school district:

‘*Your district has had a disproportionate reduction of black

principals since the 1964-65 school year. In 1964-65, there was

a total of 16 principals, of whom eight (8) were black and

eight (8) were white. In 1964-65, black principals represented

50 percent of the total number of principals in the district

and white principals represented 50 percent. However, in

1972-73, black principals represent 29 percent of the total

number of principals and white principals represent 71 per-

cent of the total. Black principals have decreased by 25 per-

cent over the period, while white principals have increased

by 137 percent.’’ (A.704-05).

ee ie ee ee ee

Charles County recruited at 156 predominantly white

colleges, while visiting only 26 predominantly black

colleges. During that same period white recruiters

made visits on 197 occasions, while blacks made only

20 trips (A. 959-76, 871).

A comparison of the qualifications of black and

white persons hired during these years further dem-

onstrates the discrimination in Charles County’s hir-

ing practices. It was far easier for white applicants

to secure professional employment than for blacks

with comparable qualifications (A. 873-958). The

school system hired numerous whites without degrees

and with the lowest state qualifications, while hiring

virtually no blacks with such limited qualifications.‘

Similarly, during these years, the white professional

employees hired by the school system generally had

less teaching experience than the blacks hired. More-

over, among the teachers hired who did have teaching

experienc, blacks had a greater average teaching ex-

perience (id.). In sum, the record of diminishing

black faculty due to discriminatory recruitment prac-

tices was bolstered by undisputed evidence that dis-

parate qualification standards were applied.

In addition to limiting black hiring and leacership

in the years immediately following student desegre-

gation, the school system also discriminated in its

assignment of blacks already employed. Between 1967

‘During the 1967-68 school year, 21 whites hired (16.2% of the

new white employees) had a 4, 5, or 6 state department certification

status, while only one black hired (2.7% of the new black em-

ployees) had such a low rating. In the same year respondents hired

20 whites without college degrees while hiring only one black

without a degree. For the two following years, the Charles County

school system hired 23 whites but only two blacks with a 4, 5, or 6

rating.

and 1970, respondents’ faculty assignments were ra-

cially identifiable in almost two-thirds of its school

faculties, and the District Court did grant a declara-

tory judgment with respect to these racial assign-

ments (A. 1025-26, 1217-24).

Finally, the record shows that the school system

consistently employed a disproportionately low per-

centage of blacks in central office administrative posi-

tions, among the superintendent’s most immediate as-

sistants and among secretaries, maintenance workers

and eafeteria managers. Only black custodians were

employed in high numbers (A. 808-09, 1179, 1161-66,

317-30, 1213-14, 1216, 977-1019).

3. The State Board's Discrimination Findings and

Remedial Orders

The discriminatory practices just reviewed were the

subject of repeated complaints to the Charles County

Board of Education. When respondents failed to pro-

vide any redress, a formal complaint of discrimination

was filed with the Maryland State Board of Edu-

cation in 1969. Hearings were held by the State Board

in late 1969 and early 1970. Seventeen witnesses, in-

cluding 3 of the individual petitioners herein, testified

concerning discrimination suffered by blacks in hir-

ing, promotion, demotions and discharges (A. 783).

At the conclusion of the complainants’ testimony, the

State Board adopted a suggestion by Charles County

school officials and created a 4-member special com-

mittee to investigate in Charles County ‘‘the status of

integration, any deficiencies that can be noted, and

suggestions for future guidance”’ (id.). After a com-

prehensive investigation (A. 393-98), the State

Board’s Committee issued a Report to the State

Board on April 24, 1970 which generally upheld the

i mc

allegations of racial discrimination in the School

Board’s hiring and promotion practices (A. 789-90,

792-95, 799-800, 804-05, 808-19, 813-16).° In addition,

the Committee recommended corrective measures to

redress the discriminations found (A. 850-60). On

July 16, 1970, the State Board of Education upheld

the findings of its Committee and issued a series of di-

rectives essentially adopting the remedial measures

suggested by the Committee (A. 862-70). The Board’s

remedial orders required sharp modification in the

school system’s hiring and promotion practices, or-

dered deliberate and extensive recruitment of quali-

fied black personnel, significant increases in recruiting

at black or predominantly black colleges by black re-

cruiters, and the adoption of a policy and practice of

employing, assigning and promoting black staff mem-

bers in order to produce ‘‘greater equity’’ and to ‘‘in-

sure black students a greater opportunity for motiva-

tion and achievement’’ (A. 866-68).

‘For example, concerning the School Board’s hiring practices,

the Committee found:

‘‘The Committee stresses that whether or not the hiring prac-

tices of the Charles County school system are or were pur-

posely intended to exclude or keep to a minimum the number

of blacks employed, the hiring practices have had just that

effect. Whether or not the original intent was or is to diserimi-

nate against blacks the result has been and is one of discrimi-

nation’’ (A. 815).

On the School Board’s hiring and recruiting policies, the Com-

mittee found:

‘« . the evidence before the Committee does indicate that

Charles County school officials have fallen into de facto dis-

criminatory hiring practices by following a procedure of

recruiting almost exclusively at predominantly white colleges,

using primarily white recruiters’’ (A. 793).

4. Continuing Ens ioyment Discrimination after 1970

Despite the findings and remedial directives of the

State Board in 1970, and the filing of this suit in 1971,

the Charles County Board of Education continued the

same discriminatory faculty practices. Respondents

continued to hire at the same 80 percent white-20 per-

cent black ratio which caused a continuing drop in the

proportion of black faculty (A. 873-958, 1180). The

percentage of black principals remained low at 30

percent, the School Board adding three white princi-

pals and only one black in the three years prior to the

1973 trial (A. 1176).

These hiring data reflected respondents’ continuing

discrimination in recruiting. Despite the State Board’s

Order requiring the Charles County Board of Eduea-

tion to engage in deliberate and extensive recruitment

of qualified black personnel and to place black staff

members on all recruiting teams, respondents contin-

ued to visit far more white colleges than black colleges

with far more white than black recruiters. Moreover,

the School Board’s continuing double standard t

vard white and black applicants was compounded

when its Director of Personnel issued a 1971 directiv >

requiring that only ‘‘superior’’ and ‘‘above average”’

black applicants be interviewed without placing any

such limitation on the interviewing and selection of

white applicants (A. 1119-21). Finally, the Charles

County system continued its racial assignment of

faculties despite the State Board’s express directive

that its school faculties must have ‘“‘balanced assign-

ments’’ (A. 868). During the years between the State

Board ruling and the 1973 trial, about half of the

school faculty assignments were racially identifiable

(A. 1025-26, 1217-24).

5. The Complaint in This Case and the District Court's Ruling

When the County School Board failed to implement

the 1970 remedial directives of the Maryland State

Board of Education, six black applicants and employ-

ees filed this action in 1971.’ They alleged individual

acts of employment discrimination and sought to rep-

resent a class of blacks who had likewise been refused

employment or promotion or been demoted by re-

spondents on grounds of race. The District Court

ruled that petitioners could not maintain a class ac-

tion, but it allowed nine additional applicants and

employees to intervene as named plaintiffs. After a

trial at which petitioners presented the above record

of racially discriminatory actions and policies, the

District Judge rejected most of petitioners’ claims.

Although he found racial discrimination in faculty

assignments and in the failure to promote a single

black Vice-Principal, the District Judge gave these

findings no weight at all when he reviewed the specific

challenged actions of the school officials and their dis-

eriminatory general hiring policies. Despite the his-

tory of segregation prior to 1967 and the unrefuted

proof that the Charles County Board of Education,

coincident with student integration, initiated vastly

‘ifferent hiriag and promotion procedures which had

the effect of progressively reducing the black faculty

component, the District Judge refused to shift the

burden of proof to the School Board to explain its

hiring and promotion actions. In his view, ‘‘[t]his

ease is nothing like Chambers v. Hendersonville

Board of Education, 364 F.2d 189 (4 Cir. 1966)”’ be-

cause the respondents had not discharged black fac-

ulty at the time of desegregation (p. 29a infra).

* Petitioners invoked jurisdiction of the District Court under

28 U.S.C. § 1331, 1343.

The District Court also declined to apply the prin-

ciple of Wright v. Council of City of Emporia, 407

U.S. 451 (1972): that even if not racially motivated,

desegregating school systems are proscribed from tak-

ing actions which have the effect of impeding desegre-

gation. Instead of granting relief against the Charles

County Board’s faculty employment actions, which

clearly had the effect of reducing the black faculty

component, the Court denied relief because of peti-

tioners’ failure to prove to its satisfaction that the

School Board’s actions had been motivated by racial

prejudice (see, e.g., pp. 29a, 36a infra). Finally, the

District Court refused to honor, or give any weight

at all to, the State Board of Education Committee’s

1970 finding of racially discriminatory faculty prac-

tices by respondents, and the ensuing remedial orders

of the State Board itself directing abandonment of

those practices (pp. 26a-27a infra).

6. The Court of Appeals’ Decision

Dividing two to one, a panel of the Court of Ap-

peals affirmed the District Court’s ruling on the

ground that the District Court properly placed the

burden of proof on petitioners because the 1967 stu-

dent desegregation was ‘‘voluntary’’ and because no

discharges of black faculty members accompanied the

desegregation. In the Court’s view, the immediate

precipitous drop in the black faculty proportion upon

integration of the student bodies was explained or

somehow justified by the expanding white student

population in the county. In short, the majority found

no justification to shift the burden of proof to the

School Board under this Court’s Keyes decision and

the Fourth Circuit’s Chambers ruling (pp. 5a-6a

infra).

A detailed critique of the District Court decision in

the dissenting opinion of Judge Butzn:* (pp. 10a to

15a infra) emphasized that the District Court ruling

was marred by two basic errors of law: (1) applica-

tion of the Keyes-Chambers rule required that the

burden of proof should have been shifted to the School

Board because the Charles County school system had

a history of segregation and because the post-1967

hiring and promotion policies were shown to have a

racially discriminatory effect—a burden of explana-

tion which the school system failed to meet; (2) ap-

plying this Court’s Wright decision, the District

Court’s premise that petitioners were required to

show purposeful racial discrimination was fallacious.

In the ‘‘reason for granting the writ’’ we urge that

vital questions are presented concerning the faculty di-

mension of school desegregation, and that the narrow

distinctions espoused by the court below against the

governing authorities invite perpetuation among pub-

lie school faculties of the racial segregation which

this Court has ordered eliminated ‘‘root and branch’’,

Green v. County School Board, 391 U.S. 430, 438

(1968).

REASON FOR GRANTING THE WRIT

THIS COURT’S REVIEW IS REQUIRED TO ASSURE EFFECTIVE

DESEGREGATION IN THE FACULTY COMPONENT OF

FORMERLY SEGREGATED PUBLIC SCHOOL SYSTEMS.

The major student desegregation undertaken

throughout the South under this Court’s Green and

Swann rulings has increased rather than reduced re-

sistance to faculty desegregation. No problem has been

more unyielding in the process of school desegregation

than the substantial decline in the employment of black

teachers and supervisors which far too frequently has

occurred following the desegregation of pupils.’ This

ease presents in clearest illumination practices in-

dulged in by many school districts to continue discrim-

ination and segregation in the faculty component of

the school system. Moreover, we urge the necessity of

this Court’s review because the lower courts’ refusal

to apply established Fourteenth Amendment princi-

ples tangibly threatens the perpetuation in faculty em-

ployment of the racism formerly practiced under com-

pulsion of state law.

lL THE DECISION BELOW SEVERELY ERODES THE IM-

PORTANT PRINCIPLE THAT SHIFTS THE BURDEN OF

JUSTIFICATION TO A SCHOOL SYSTEM WHICH

CURTAILS ITS BLACK FACULTY COMPONENT AT THE

TIME OF STUDENT DESEGREGATION.

In Keyes v. School District No. 1, Denver, Colo-

rado, 413 U.S. 189 (1973) this Court quoted and

adopted the holding of the Fourth Circuit in Cham-

bers v. Hendersonville City Board of Education, 364

F.2d 189, 192 (1966) that ‘‘. . . in a school system

with a history of segregation, the discharge of a dis-

proportionately large number of Negro teachers in-

cident to desegregation ‘thrust[s] upon the School

Board the burden of justifying its conduct by clear

™See Amicus Curiae Brief of National Education Association in

United States v. Georgia, (5th Cir. No. 30,338) reproduced in

Hearings Before Senate Select Committee on Equal Educational

Opportunity, 91st Cong., 2d Sess. (1970), 92d Cong., Ist Sess.,

(1971) (herein ‘‘Hearings’’) pp. 5025, 5042, 5074; Hearings,

Part 10—‘‘Displacement and Present Status of Black School Prin-

cipals in Desegregated School Districts,’’ Appendix 5, pp. 5147-

5390; Hearings, ‘‘NEA Report of Task Force Survey of Teacher

Displacement in Seventeen States,’’ pp. 1082, 1124.

a PO ee eee ee ee ee

‘

and convincing evidence.’ ”’ (413 U.S. at 209). In this

ease, the majority below rejects the applicability of the

Keyes-Chambers principle, because in Charles County

in 1967 student desegregation occurred ‘‘voluntarily”’

and because no actual discharge of black teachers oc-

curred. Such a distinction disregards the underlying

meaning and purpose of the Keyes-Chambers rule.

While in Charles County the student desegregation

did not occur pursuant to a specific court order, its

ultimate action was belatedly undertaken to comply

with this Court’s order in Brown. Moreover, and more

importantly, while not discharging black teachers, the

School Board achieved the same result of curtailing

its black faculty component by initiating discrimina-

tory hiring and promotion procedures. Thus a school

system with almost 50% black teachers suddenly began

hiring four white teachers for each black. In the very

first year following student desegregation, the black

faculty dropped from 44% to 37% ; and in two more

years to 30%. The four to one white-black hiring ratio

has continued each year after 1967, even after the

Maryland State Board of Education in 1970 expressly

ordered a sharp modification in the School Board’s

hiring and promotion practices and directed the de-

liberate and extensive recruitment of qualified black

personnel. Just as Charles County initiated new

teacher hiring procedures at the time of desegregation,

it stopped promoting blacks to the important leader-

ship position of school principal. While the number

of black principals remained static, whites were con-

tinually appointed to these positions and more than

doubled in number, resulting in a decrease in the black

principal proportion from 50% to 30%.”

‘The majority of the Court of Appeals accepted respondents

argument that demographic changes in the Charles County popu-

The School Board thus accomplished by its hiring

and promotion policies what the school board in

Chambers accomplished by discharges. As the dissent-

ing Judge below stated:

‘The record demonstrates that, incident to de-

segregation of the schools, the board disadvan-

tageously treated a disproportionately large num-

ber of black personnel, not by discharge, as men-

tioned in Keyes, but by its hiring and promotion

policies. For the purposes of shifting the burden

of proof, the difference between discharging black

teachers and refusing to hire or promote them is

inconsequential. The board’s practices, though

more subtle than outright discharge, nevertheless

disproportionately diminish the black faculty”’

(p. lla infra).

Though perhaps ‘‘more subtle than outright dis-

charge,’’ the subtlety of the hiring discrimination was

certainly not lost on the system’s black pupils who

perceived the sharp curtailment in the black faculty

proportion. From their point of view, the discrimina-

tion was very real and, as this Court has held, the

impact of faculty discrimination on the students is the

paramount concern. Rogers v. Paul, 382 U.S. 198, 200

(1965) ; Bradley v. School Board, 382 U.S. 103 (1965) ;

Swann v. Board of Education, 402 U.S. 1, 18 (1951).°

lation during the 1960-1970 decade somehow explained the precipi-

tous drop in the black faculty component. But as Judge Butzner

persuasively pointed out in dissent, the record reflects that the

School Board ‘‘does not look only to the availability of white

teachers living in the county, and for years both black and white

teachers have been recruited from colleges all over the country.

Consequently, the number of black applicants who live in the

county is irrelevant’’ (See p. 13a infra).

® While this case involves school desegregation, it, of course, also

concerns employment discrimination. In cases of employment dis-

crimination, statistical evidence has uniformly been held to estab-

et ee ae eee ees

ide <n et omen &

ne ee ee

During the middle and late 1960's thousands of

Southern black school administrators and teachers

were discharged, demoted and refused employment at

the time of desegregation.” The Chambers principle

which this Court adopted in its 1973 Keyes decision

provides an important deterrent to the continuation

of the practice of eliminating black faculty at the

time that these faculty members are assigned to teach

white children. Numerous school districts across the

country are still in the process of desegregation. The

pernicious effect of the majority opinion below is to

erode the important continuing protection furnished

by the Keyes-Chambers rule, which places a heavy

burden on the school district to justify its action. This

Court’s review is required where the opinion below

invites evasion of full desegregation by discriminatory

faculty hiring practices.

IL THE DECISION BELOW ERODES THIS COURT'S WRIGHT

RULING BY REFUSING TO APPLY ITS OBJECTIVE STAND-

ARD TO THE FACULTY DESEGREGATION AREA.

In Wright v. Council of City of Emporia, 407 US.

451 (1972), this Court enunciated an important prin-

lish a prima facie case shifting the burden to the employer to

rebut the inference of discrimination arising therefrom. See, ¢.7.,

Rrown v. Gaston Co. Dyeing Machine Co., 457 F.2d 1377, 1382

(4th Cir. 1972); Rowe v. General Motors Corp., 457 F.2d 348,

357-58 (5th Cir. 1972); Pettway v. Cast Iron Pipe Co., 494 F.2d

211, 225, n. 34 (5th Cir. 1974). The lower courts surely erred in

failing to apply these authorities to petitioners’ pattern or practice

of discrimination claim. Moreover, in treating petitioners individ-

ual clams of discrimination, the lower courts failed to shift the

burden of proof to the employer School Board in accordance with

the ‘‘order and allocation of proof’’ set forth in this Court’s

opinion in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-04

(1973).

1° See p. 14 n. 7 supra.

18 ©

ciple of school desegregation law flowing from Brown,

Green, and Swann: in evaluating a desegregating

school district’s actions it is the effect which is con-

trolling rather than the motivation of school officials.

As stated in Wright (407 U.S. at 462), where the court ©

below had upheld creation of a new school district ‘‘de-

signed to further the aim of providing quality educa-

tion’’ (442 F.2d 570, 572), the focus must be upon

“the effect—not the purpose or motivation—of a

school board’s action in determining whether it is a

permisible method of dismantling a dual system. The

existence of a permissible purpose cannot sustain an

action that has an impermissible effect.”

The District Judge, affirmed by the ruling below,

refused to apply the Wright ‘‘discriminatory effect’’

test to the faculty practices of the Charles County

School Board. For example, in denying relief to pe-

titioner William Griffis, a black principal for 16 years

in the segregated school system, who was demoted one

year after his school was integrated, the District Judge

‘equired petitioner to prove thai the demotion w.s

‘‘made on the basis of race, or because of any racial

prejudice’’ (p. 36a infra, see also p. 15a). As dissent-

ing Judge Butzner emphasized, the District Court's

Opinion contains a ‘‘basic error of luw that flaws this

case: the fallacious premise that the evidence must re-

veal purposeful discrimination in order for the com-

plainants to prevail’’ (p. 12a infra). To Judge Butz-

ner’s conclusion that the Wright ‘‘effect’’ test should

have been applied— and that its application requires a

finding of unlawful School Board conduct here—the

majority below makes no response. Plainly, Judge

Butzner is correct in rejecting any operative distinc-

tion which would make the Wright rule inapplicable

to the faculty component in school desegregation. This

Court’s review is thus required to vindicate the appli-

cability of an “‘effect’”’ standard for desegregation of

the faculties of formerly segregated school systems no

less than their student bodies.

Moreover, the refusal by the Court below to apply

an objective standard to the School Board’s employ-

iment policies sharply curtailing the black faculty com-

ponent, cuts directly against the grain of this Court’s

objective standard in employment cases covered by

the Civil Rights Act of 1964. Griggs v. Duke Power

Co., 401 U.S. 424 (1971)." Under Griggs, that is

true even though the employer has had no past segre-

gation record such as existed in Charles County and

even though the private employer is free of constitu-

tional limitations. Surely this Court ought review a de-

cision which makes inapplicable to public employment

the objective standard of Griggs which now applies

in all private employment.

I. A MAJOR CONSTITUTIONAL ISSUE ARISES FROM THE

LOWER COURT'S REFUSAL TO HONOR AND GIVE EFFECT

TO THE STATE’S OWN FINDINGS OF THE SCHOOL

BOARD'S DISCRIMINATORY PRACTICES.

The duties of the Maryland State Board of Educa-

tion under the Fourteenth Amendment and state law

‘vere duly invoked in 1969 by charges filed with the

Board alleging widespread discrimination against

11 While Griggs was brought under Title VII of the Civil Rights

Act of 1964 (42 U.S.C. § 2000e et seq.), its standards have generally

veen applied in employment discrimination cases brought under

42 U.S.C. §§ 1981 and 1983. See, e.g., Vulcan Soctety v. Civil

Service Commission, 490 F.2d 387, 394 n. 9 (2d Cir. 1973);

Castro v. Beecher, 459 F.2d 725, 733 (1st Cir. 1972).

black faculty by Charles County school officials.” Fol-

lowing three days of hearings, the State Board ap-

pointed a four member investigating committee. The

State Board’s Committee conducted a comprehensive

investigation and in April 1970 issued a unanimous

report. Finding respondent School Board guilty of

discriminatory practices and policies inhibiting the

hiring and promotion of black faculty, the State

Board’s Commiiiee recommended corrective measures

to redress the discriminations found (A. 789-90, 792-

95, 799-800, 804-05, 808-10, 813-16, 854-59). Thereafter,

in July 1970 the State Board of Education itself up-

held the findings of its Committee and issued direc-

tives requiring respondent Charles County Board of

Education to modify sharply its hiring and promotion

practices and to deliberately and extensively recruit

qualified black personnel (A. 866-68).

While the District Court reluctantly received into

evidence the rulings of the State Board and its Com-

mittee, it chose to disregard the findings of the State

“oard’s Committee approved by the State Board.

Moreover, it declined to enforce or give any weight to

the requirements mandated by the State Board itself

** Under the Constitution of the State of Maryland, responsi-

bility for the operation and maintenance of the public education

system is placed upon the State (Maryland Constitution, Article

VIII, § 1). That State responsibility is vested in the State’s Board

of Edueation by Article 77 of the Maryland Code. Section 113

of Article 77 broadly prohibits any board of education from mak-

ing ‘‘any distinction or discrimination in favor of or against any

teacher . . . on account of race... with reference to... appoint-

ment, assignment, compensation, promotion, transfer, dismissal,

...'’ Under §6 of the same Article, the State Board of Education

must ‘‘cause the provisions of this article to be carried into effect’’,

and must ‘‘decide all controversies and disputes that arise under

it, and their decision shall be final.’’

Ne abd en Fae! ese de ee foe. ss aot NN th ill Ta A BA RE Aa

seeking to end the faculty practices which were sharp-

ly reducing the proportion of black teachers and prin-

cipals in the Charles County school system (pp. 26a-27a

infra). The Court of Appeals similarly refused to

honor the State Board Committee’s findings or to

enforce the State Board’s remedial mandate that the

discriminatory faculty practices be discontinued

(pp. 8a-10a infra). Indeed, the majority even eriti-

eized the dissenting opinion’s reliance on the State

Board ¢‘ommittee’s Report and the State Board’s re-

medial orders in finding a ‘“‘history of segregation”’ in

the Charles County system (p. 9a infra).

Thus the federal courts below have shrugged aside,

disregarded and declined to give effect to the State’s

own action, taken pursuant to its responsibility under

State law and under the Fourteenth Amendment.”

That Amendment provides that no ‘‘state”’ shall deny

equal protection to its citizens, and it is settled that

the state itself bears the equal protection responsibility

for the discriminatory acts of its agents or subdivi-

sions. See The Civil Riyhts Cases 109 U.S. 3 ( 1883) ;

Ex parte Virginia, 100 U.S. 339, 347 (1880); Gomil-

lion v. Lightfoot, 364 U.S. 339, 344-45 (1960) ; Reyn-

olds v. Sims, 377 U.S. 533, 575 (1964). Accordingly,

13 Both the Court of Appeals and the District Court state (pp.

9a, 27a infra) that the State Board and its Committee were not

charged with and did not purport to apply constitutional or sta-

tutory standards. But in finding racially discriminatory employ-

ment practices and in directing corrective action by the school

system, the State agency was discharging its duty to enforce the

Equal Protection Clause of the Fourteenth Amendment. More-

over, the State Board and its Committee were bound to enforce

Article 77, §113 of the Maryland Code which essentially dupli-

eates the Fourteenth Amendment in prohibiting any Board of

Education from racial discrimination in matters of faculty em-

ployment, promotion and assignment.

when the highest public education authority of Mary-

land made an appropriate investigation resulting in

findings that its subordinate agency—the Charles

County School Board—was engaging in discrimination

against black faculty and ordered corrective action,

the State was exercising its duty under the Fourteenth

Amendment precisely as the Amendment contemplates

and requires.**

An important question is thus raised by the lower

courts’ failure to give effect to the action properly

undertaken by the State Board under its equal pro-

tection obligation, as well as under the State law bar-

ring discrimination in faculty hiring. Given the high

importance of state respect for equal protection, the

state’s own compliance efforts are entitled to full

faith and credit in a federal litigation seeking Four-

teenth Amendment remedies. Cf. Brewer v. Hozie

School District, 238 F.2d 91 (8th Cir. 1956).** The occa-

‘* Moreover, under the Federal Constitution the State Board’s

ruling was binding on the Charles County Board of Education,

and it had no standing to challenge it. The Charles County Board

is a creature of the State of Maryland and cannot be heard in

federal court to challenge the rulings of the State Board of Edu-

cation. Williams v. Mayor and City Council of Baltimore, 289

1.8. 36, 40 (1933); Trenton v. New Jersey, 262 U.S. 182, 187-88

(1923). Since that is true even where as in Williams the sub-

ordinate agency claims that the State is acting in violation of the

Fourteenth Amendment, it is surely even more the case where,

as here, it is the State which has sought to secure Fourteenth

Amendment compliance and it is a subordinate School Board

which has flouted its remedial directives.

** Since Maryland courts honor and give effect to remedial orders

of the State Board of Education (see Wilson v. Board of Educa-

tion, 234 Md. 561, 563-66, 200 A.2d 67, 68-70 (1964) ), the federal

courts below should have done the same as a matter of pendent

jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 725

(1966) ; ef. 28 U.S.C. § 1739.

sions on which officials of the formerly segregated

states have themselves undertaken forthright correc-

tive action in the school desegregation area are un-

fortunately few and far between. Cf. McDaniel v.

Barresi, 402 U.S. 39 (1971). Surely when that hap-

pens, as here, federal courts cannot disregard that

action, giving a clean bill of health to School Board

officials for the same conduct which the State has

found racially discriminatory.

Maryland having found generally discriminatory

hiring and promotion policies practiced by the Charles

County Board of Education and having ordered their

discontinuance, there was provided to the District

Court an additional predicate for award of injunctive

and compensatory relief. Thus, both as a matter of

legal compulsion and as a matter of comity and judicial

wisdom, the lower courts should have given appropri-

ate effect to Maryland’s discrimination findings and

remedies. Their failure to do so presents an important

additional question for this Court’s review.

CONCLUSION

For the several separate and compelling reasons

stated, the writ should be granted.

Respectfully submitted,

JosePH L. Ravn, JR.

JOHN SILARD

Exuuiott C, LICHTMAN

Ravu, SILARD AND LICHTMAN

1001 Connecticut Avenue, N.W.

Washington, D.C. 20036

Mrs. JUANITA JACKSON MITCHELL

MITCHELL AND MITCHELL

1239 Druid Hill Avenue

Baltimore, Maryland 21217

Attorneys for Petitioners

APPENDIX

JACK GREENBERG

JAMES M. Napsnrit III

JAMES C. Gray, JR.

10 Columbus Circle

New York, New York 10019

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 74-1817 and 74-1818

Joserpx H. Morton, Wmuiam L. Garirris, Mrmsourne F.

Hutz, Veronica Apams, Annie C. Yates, Mary Linpa

Puater, infant, through her father, Cuartes L. PLAter,

Sr., Mary THERESEA WasHINGTON, infant, through her

mother, Mrs. Doris C. Wasuincton, Corpe.ia E. Kina,

Exnora Prnxney, Raymonp F. Sanperuin, Herome F.

Tuompson, Lacey Triiotson, Sanpra WasHINGTON

Hearns, Kennetn Wricnt, Josten A. Jones, BertHa

Key,

versus

Cuartes County Boarp or Epvucation, James E. WI:son,

individually and as a member of the Charles County

Board of Education, B. Patrick Cox, individually and

as a member of the Charles County Board of Educa-

tion, Josepu L. Garprner, individually and as a mem-

ber of the Charles County Board of Education, Dante

C. Garpner, individually and as a member of the

Charles County Board of Education, Joan L. Bow.ina,

individually and as a member of the Charles County

Board of Education, Mrs. Atrrep Paretta Mupp, in-

dividually and as a member of the Charles County

Board of Education, Jesse L. Starkey, individually

and as Superintendent of Schools, Charles County,

Maryland, Charles County Board of Education,

._ppellees-Appellants

Cross-appeals from the United Staes District Court for

the: District of Maryland, at Baltimore. Roszel C. Thom-

sen, Senior District Judge.

Argued March 5, 1975 - Decided July 24, 1975

Before Bryan, Senior Circuit Judge, and Burzner and

Frevp, Circuit Judges.

Elliott C. Lichtman (Joseph L. Rauh, Jr., John Silard,

Rauh and Silard, Mrs. Juanita Jackson Mitchell, Mitchell

and Mitchell, Jack Greenberg, James M. Nabrit, III, Nor-

man Chachkin and James C. Gray, Jr., on brief) for Ap-

pellants in No. 74-1817 and Appellees in 74-1818; William

L. Marbury and E. Stephen Derby (Judith K. Sykes, Ed-

ward S. Digges and Richard J. Clark on brief) for Appel-

lees in No. 74-1817 and Appellants in No. 74-1818.

Fievp, Circuit Judge:

This action was instituted in January of 1971 by eight

black individuals alleging discriminatory conduct in the

operation of the public school system of Charles County,

Maryland. Six of the plaintiffs were adults who charged

that they and the class of individuals which they purported

to represent had been refused employment or promotion,

or had been demoted or discharged by the defendants on

grounds of race. The other two plaintiffs were infants who

were students in the Charles County School System and

alleged that they sued on behalf of themselves and as rep-

resentatives of a class consisting of all black students in

the school system who were being deprived of their civil

rights because the defendants had maintained racially

identifiable faculties. The parties engaged in broad and

exhaustive discovery procedures and on November 9, 1973,

the court determined that the prerequisites to a class ac-

tion had not been met by either the adult or infant plain-

tiffs. Thereafter, nine additional adults moved to inter-

vene as plaintiffs, alleging that they had been the victims

of racial discrimination on the part of the defendants.

The district court conducted a twelve-day trial and filed

an opinion in which it engaged in a meticulous review of

the evidence and made detailed findings of fact. The claims

Dp Vain. niet “nee aca 2 toaticthtind tea es “Ts

of discrimination of the fourteen adult plaintiffs’ were

carefully examined and with the exception of one claim

were found to be without merit. In the case of Mrs. Elnora

Pinkney the court found that the failure to appoint her as

principal of an elementary school in 1969 was the result

of racial discrimination. With respect to the claims of the

student plaintiffs relative to the racial composition of

faculties, the court found that the School Board had at-

tained an appropriate faculty ratio as required by Nesbit

vy. Statesville City Board of Education, 418 F.2d 1040 (4

Cir. 1969), in all but five of its twenty-six schools.? The

court noted that in three of these five schools the shifting

of one teacher would bring the school into conformance

with the test suggested by the plaintiffs and that in all

other schools the shifting of only two teachers would be

necessary. The only school falling substantially below this

test was the Vocational Educational Center which included

a number of specialized faculty positions.

Based upon the findings in its opinion the court entered

an order which (1) granted judgment in favor of the de-

fendants with respect to the claims of all the adult plain-

tiffs with the exception of Mrs. Pinkney; (2) declared that

the ratio of black and white faculty members in each

school should be not less than 75 per cent nor more than

125 per cent of the ratio of black teachers throughout the

system;* (3) granted judgment in favor of Mrs. Pinkney

1 After the institution of this suit one of the plaintiffs, Ortis J.

Cobb, was permitted to withdraw as a party plaintiff on October

12, 1972.

?The plaintiffs suggested that the standard of Nesbit would be

met where the ratio of black teachers to white teachers in each

public school in the county was not less than 75 per cent nor

more than 125 per cent of the ratio of black teachers to white

throughout the entire system.

2 On this issue the court accepted the standard suggested by the

plaintiffs. See, n.2, supra.

in the amount of $15,796, being the difference between the

salary actually paid to her and the salary she would have

received as principal of an elementary school for the years

1969 to 1974;* and (4) awarded attorneys’ fees of $12,000

payable to counsel for Mrs. Pinkney and the infant plain-

tiffs.

Upon their appeal, the plaintiffs request that we re-

verse the judgment of the district court and direct that it

take the following remedial measures. First, grant declara-

tory and injunctive relief prohibiting continuance of the

hiring, promotion and demotion practices which plaintiffs

allege have caused continued attrition in the percentage

of black faculty members in the school system. Second,

issue an injunction requiring the institution of affirmative

hiring, promotion and demotion policies designed to restore

the ratio of black principals and teachers to that which

existed in the school system at the time desegregation was

undertaken. Third, set aside the adverse findings made by

the district court against the thirteen adult plaintiffs, and

reconsider their claims by applying a presumption of racial

discrimination and placing upon the defendants the burden

of proving that discriminatory policies played no part in

the rejection, non-promotion or demotion of each individ-

ual plaintiff. Fourth, award compensatory and other relief

to all members of the class of unsuccessful black appli-

eants for promotion and hiring in the Charles County

School system since 1968.°

*The Board was further directed to compensate Mrs. Pinkney

on the basis of a principal’s salary until her retirement and to

make such additional contributions to the Maryland Teachers Re-

tirement System on her behalf as would have been made had she

held the position of principal since 1969.

* The plaintiffs contend that the alleged discriminatory practices

injured all unsuccessful black applicants for positions in the Tharies

County school system and that the district court plainly erred in

refusing to permit the plaintiffs to pursue their class action. They

further suggest ‘‘that a special master could be appointed to receive

Primarily the plaintiffs contend that the district court

failed to give the appropriate presumptive weight to the

statistical evidence of racial discrimination in the Board’s

employment practices. They point to the fact that whereas

in 1966-67, the year prior to complete desegregation, 44.2

per cent of the teachers were black, the proportion of black

teachers had declined to 30.4 per cent in 1969-70, and that

in the same years the percentage of black principals had

dropped from 37.5 per cent to 30.7 per cent. These sta-

tistics, the plaintiffs argue, call for the invocation of the

principle set forth in Chambers v. Hendersonville City

Board of Education, 364 F.2d 189, 192 (4 Cir. 1966), that

‘tin the face of the long history of racial discrimination

* * * the sudden disproportionate decimation in the ranks

of Negro teachers raise[s] an inference of discrimination

which thrust[s] upon the School Board the burden of justi-

fying its conduct by clear and convincing evidence.’’ The

district judge rejected this contention of the plaintiffs, and

we agree with him that this is not a Chambers case. First

of all, unlike Chambers where the school system resisted

‘‘the mandate of Brown until forced to do so by litigation,”’

Id. at 192, the Charles County Board had taken affirmative

steps to desegregate its schools in the light of the evolving

law and it is conceded that complete desegregation in the

county had been voluntarily accomplished in 1967. Also,

unlike Chambers, in the present case there was no sudden

disproportionate decimation in the ranks of Negro teachers

incident to the complete integration of the school system. On

the contrary the district judge found that ‘‘there is no claim

or evidence that any teacher or principal was discharged

because of his or her race.’”’ Common to Chambers and its

progeny in this circuit * was the fact that in each case a sub-

the individual applications for reliefs,’ with directions that the

master apply the presumption of discrimination set out in ‘‘Third’’

above.

* See, Walston v. County School Board of Nansemond Cty., Va.,

492 F.2d 919 (4 Cir. 1974); North Carolina Teachers Ass’n. v.

Asheboro City Bd. of Ed., 393 F.2d 736 (4 Cir. 1968).

stantial number of black teachers had been discharged when

the schools were integrated, and the significance of this

factors was recognized by the Court in Keyes v. Schov

District No. 1, Denver, Colo., 413 U.S. 189, 209 (1973),

where the Court stated:

‘‘ Again, in a school system with a history of segrega-

tion, the discharge of a disproportionately large num-

ber of Negro teachers incident to desegregation

‘trust[s] upon the School Board the burden of justify-

ing its conduct by clear and convincing evidence’.’’

(Emphasis added).

In addition to the foregoing, the record »learly demon-

strates that the statistical changes upon * .iich the plain-

tiffs rely so heavily were not the result of any discrimina-

tory hiring policies of the Board, but rather were the result

of dramatic demographic changes which occurred in Charles

County in the 1960-1970 decade. Charles County is a small

county in southern Maryland which is experiencing rapid

growth as the suburbs of the District of Columbia expand.

Between 1960 and 1970 the population increased 46.4 per

cent from 32,500 to 47,700. In that same period the number

of students in public schools increased from 7,409 in 1960

o 13,000 in 1970, and had further increased to 16,300 in

1973. This rapid growth in both population and school en-

rollment consisted primarily of an increase in white popu-

lation and white pupils. While in 1970 the black population

of the county had slightly increased in absolute numbers,

the percentage of black population had declined from 34

per cent in 1960 to 29 per cent in 1970; and the percentage

of blacks in the school population had declined from 45.7

per cent in 1960 to 39.9 per cent in 1970 and dropped even

lower to 34 per cent in 1973.

During this same period the number of black principals

in the school system increased from six to eight and in 1973

stood at 30.7 per cent while the number of black vice-prin-

cipals increased from four to six and reached about 45 per

cent. The number of black administrators in the central

office of the school system increased from four to ten, being

22 per cent of that job classification. The number of black

teachers had increased from 198 to 207, although the per-

centage decreased to 27 per cent. The district court care-

fully analyzed the school statistics in the light of the per-

centage decrease of blacks in the general population as well

as the school system, and also took into consideration the

statistical data bearing upon the percentage of blacks in

ihe relevant employment pool from which the School Board,

of necessity, drew a substantial number of its employees.

Upon consideration of all of the relevant statistical data

and underlying evidence bearing thereon, the district judge

concluded that the evidence did not disclose a pattern of

racial discrimination which required or justified the appli-

eation of the so-called Chambers rule. The record solidly

supports the findings of the district court and, assuredly,

they are not clearly erroneous.’ Williams v. Albemarle City

Roard of Education, 485 F.2d 232 (4 Cir. 1973) ; Bridgeport

Guard., Inc. v. Members of Bridgeport C. S. Com’m., 482

F.2d 1333 (2 Cir. 1973).

The proposal of the plaintiffs that the court direct the

Board to institute an affirmative policy which will restore

the ratio of black principals and teachers to that which

existed in the system prior to desegregation of the schools

7 In Mayor v. Educational Equality League, 415 U.S. 605 (1974),

the Court criticized the use of ‘*simplistic percentage comparisons’’

and observed :

‘(We share the view expressed in the dissent that facts in

a case like the instant one, ‘when seen through the eves of

judges familiar with the context in which they occurred, may

have special significance that is lost on those with only the

printed page before them.’ * * * That is one reason why we

believe that the Court of Appeals, ‘with only the printed page

before [it] ...,’ erred in reversing the District Court. The

judge most ‘familiar with the context in which [the facts]

occurred .. .’ was obviously the District Judge, since he heard

and viewed the testimony and other evidence presented.”’ Id.,

at 620, n.20.

would require the court to close its eyes to the changes

which have taken place in Charles County during the past

ten years. We are unaware of any constitutional principle

which would require that the racial ratios which existed

in the school system of the county in 1966-67 be rigidly

maintained ad infinitum despite the changing character of

the surrounding area. On the contrary, the inevitability of

such changes was recognized by the Chief Justice in Swann

v. Board of Education, 402 U.S. 1, 31-32 (1971).

‘‘Tt does not follow that the communities served by

such systems will remain demographically stable, for

in a growing, mobile society, few will do so. Neither

school authorities nor district courts are constitution-

ally required to make year-by-year adjustments of the

racial composition of students bodies once the affirma-

tive duty to desegregate had been accomplished and

racial discrimination through official action is elim-

inated from the system. This does not mean that fed-

eral courts are without power to deal with future prob-

lems; but in the absence of a showing that either the

school authorities or some other agency of the State

has deliberately attempted to fix or alter demographic

patterns to affect the racial composition of the schools,

further intervention by a district court should not be

necessai y.”’

In our opinion. the present case falls within this observation

of the Chief Justice, and the record satisfies us that despite

the changing population ratio the Board has taken reason-

able and affirmative steps to bring substantial numbers of

qualified blacks into every facet of the school system.

Finally, a brief comment about the special committee re-

port upon which the dissent appears to place considerable

reliance. In the spring of 1969 a dispute arose over the

selection of majorettes at La Plata High School and at the

suggestion of the Board of Education and the NAACP a

committee was appointed by the State Board of Education

to make an investigation of a variety of complaints and

report its recommendations to the Board. The committee

was purely of an ad hoc nature and, as noted by the district

judge, was not charged to apply either constitutional or

statutory standards in its investigation. The committee’s

investigation was not conducted as an adversary proceeding

nor were the individuals interviewed by it subject to cross-

examination. The State Board discussed the committee re-

port with representatives of the Charles County school sys-

tem and the NAACP and thereafter adopted some of the

committee’s recommendations, modified some and refused

to adopt others. Again, as noted by the district judge, the

action of the State Board on the report did not purport to

be based upon either constitutional or statutory principles.*

While the dissent does not go so far as to accept the

plaintiffs’ contention that the district court was bound by

the committee report and had a responsibility to enforce its

findings as well as the recommendations of the State Board,

it nevertheless relies upon the report as demonstrating ‘‘a

history of segregation’’ under the Keyes formula. This, we

think, accords the report an unwarranted role in this litiga-

tion. While the district judge permitted the committee re-

port to be introduced into evidence, he ultimately reached

the conclusion that’ifs relevant findings lacked support and

made his independent findings based on the evidence before

him. In doing so he acted well within the permissible area

of his discretion. Even if the report were conceded some

official gloss its admissibility would be highly questionable,

see Moss v. Lane Company, Incorporated, 471 F.2d 853 (4

Cir. 1973) ; Cox v. Babcock and Wilcox Company, 471 F.2d

13 (4 Cir. 1972), and in any event, it ‘‘is in no sense binding

on the district court and is to be given no more weight than

any other testimony given at trial.’? Smith v. Universal

® It was conceded by the plaintiffs that none of them had seen fit

to pursue the available Maryland statutory remedy by which a

person aggrieved by actions of the county school administration

may present a complaint to the School Board and, if dissatisfied

with the action of the Board, ‘appeal to the State Board of Educa-

tion. Anno. Code of Md., Art. 77 § 59 (1969 Repl. Vol.)

10a

Services, Inc., 454 F.2d 154, 157 (5 Cir. 1972). The fallacy of

placing any operative reliance on the report is more readily

apparent if we reverse the circumstances. Had the state

committee given carte blanche approval to the manner in

which the Charles County schools were being operated, we

doubt that anyone would seriously contend that such a re-

port would constitute a defense to the plaintiffs’ law suit or

that it would be entitled to any substantial evidentiary con-

sideration on the issues.

In our opinion the district court granted full and appro-

priate relief and we affirm its judgment in all respects.”

AFFIRMED

Burzyer, Circuit Judge, dissenting: ,

This case reaches the wrong result because of two basic

errors of law. The first error is the allocation of the bur-

den of proof, which was placed on the black complainants.

It should have been placed on the school board in con-

formity with Keyes v. School District No. 1, Denver Colo-

rado, 413 U.S. 189, 209 (1973), which teaches that ‘‘in a

school system with a history of segregation, the discharge

of a disproportionately large number of Negro teachers

incident to desegregation ‘thrust[s] upon the School Board

the burden of justifying its conduct by clear and convinc-

ing evidence.’ ’’ Therefore, the initial inquiry should be

to determine whether the Charles County school system

has a history of segregation.

Until 1954 the county board operated a dual system, and

not until 1967 were all of the schools desegregated. In the

course of integrating the pupils, the racial composition of

faculties underwent changes that were investigated by 4

special committee appointed by the Maryland State Board

°The cross-appeal of the Board of Education challenges the

award of damages to Mrs. Pinkney, but we are not persuaded that

the finding of the district court on her claim was clearly erroneous.

lla

of Education. The committee filed an extensive report con-

demning the racial discrimination practiced by the school

board in hiring and promoting the schools’ professional

and administrative staffs. The State Board of Education

approved the committee’s recommendations calling for the

extensive recruitment of qualified black personnel and the

establishment of fair and clear procedures for promotion

that would apply equally to all candidates. When it became

apparent that the school board was disregarding these

recommendations, black students, parents, and faculty in-

stituted this action. The first factual predicate for shifting

the burden of proof mentioned by Keyes is ‘‘a history of

segregation.’’ The school board’s former operation of a

dual system of schools and the report of the State Board

of Education amply demonstrate that this prerequisite

has been met.

The second element of the Keyes formula is also satis-

fied. The record demonstrates that, incident to desegrega-

tion of the schools, the board disadvantageously treated a

disproportionately large number of black personnel, not by

discharge, as mentioned in Keyes, but by its hiring and

promotion policies. For the purposes of shifting the bur-

den of proof, the difference between discharging black

teachers and refusing to hire or promote them is incon-

sequential. The board’s practices, though more subtle than

outright discharge, nevertheless disproportionately dimin-

ish the black faculty. The record shows that when the

pupils were segregated, 50 percent of the principals were

black and 50 percent were white. After desegregation of

the schools, the percentage of black principals decreased

to 30 percent and that of white principals increased to

70 percent. Before desegregation, black teachers consti-

tuted 44.2 percent of the faculties, but by 1973 the ratio

had dropped to 27.4 percent.

I therefore conclude that both of Keyes’ factual pre-

requisites for shifting the burden of proof have been satis-

12a

fied and that it was error to fail to place on ‘‘the School

Board the burden of justifying its conduct by clear and

convincing evidence.’’ 413 U.S. at 209.

The school board, however, contends that even if the

burden shifted, the judgment should be affirmed. But a

proper examination of the record refutes its claim. This

brings us to the second basic error of law that flaws this

case: the fallacious premise that the evidence must reveal

purposeful discrimination in order for the complainants

to prevail. This is contrary to Wright v. Council of the

City of Emporia, 407 U.S. 451 (1972). Wright teaches

that in deciding whether a school board has acted law-

fully, a court must focus ‘‘upon the effect—not the purpose

or motivation—of a school board’s action.’’ 407 U.S. at

462. Rather than ascribe good or evil motives to the board,

it is sufficient to look to the effect of its conduct on the

professional staff.

The record disclosed that despite the admonition of the

State Board of Education to recruit qualified black per-

sonnel extensively, the school board has curtailed recruit-

ment. In 1967-1968 there were 14 recruiting visits by blacks

to various colleges. In 1968-1969 there were none, but dur-

ing the same term there were 76 recruiting visits by whites.

Recruiting by blacks picked up temporarily after the State

Board of Education criticized the county board, but in

1973-1974 the number of visits dropped to two. The lack

of the board’s recruitment efforts has a significant effect

—the board hires four white teachers for every black. This

disparity cannot be attributed to unequal qualifications.

From 1967 to 1973 the board hired 47 white teachers and

only 4 black teachers with no degree and low state certifi-

cation. In 1971 the supervisor of personnel services di-

rected his assistant to select for interviews from among

the black applicants only those with a superior or above

average rating. No similar limitation for white applicants

was disclosed. It is quite clear, therefore, that the disparity

in the board’s hiring of blacks and whites cannot be at-

13a

tributed to rational quality control. Moreover, the absence

of fair and clear procedures for promotion that apply

equally to all candidates has resulted, during the years

following integration of the pupils, in doubling the num-

ber of white principals while the number of black prin-

cipals remained static.

The school board also places emphasis on the demo-

graphic changes in Charles County, intimating that an

increase in the number of white pupils justifies the pro-

portionate shift to white teachers. This argument flies in

the face of Chambers v. Hendersonville City Board of

Education, 364 F.2d 189, 192 (4th Cir. 1966), where we

held ‘‘reduction in the number of Negro pupils [does] not

justify a corresponding reduction in the number of Negro

teachers.’’ Furthermore, this court has never subscribed

to the theory that the racial composition of faculties should

mirror the racial composition of student bodies. Indeed, if

this new theory were to be applied conversely where black

pupils outnumber white, some of the largest cities in this

circuit would have to radically change the racial compo-

sition of their administrative and teaching staffs, an obli-

gation that this court has never heretofore seriously con-

sidered.

The school board also contends that the decrease in

proportion of black teachers is due to lack of enough black

applicants in the county to staff the schools and to inade-

quate housing in the county. Yet the board does not look

only to the availability of white teachers living in the

county, and for years both black and white teachers have

been recruited from colleges all over the country. Conse-

quently, the number of black applicants who live in the

county is irrelevant. Further, white employees recruited

from outside the county have to find housing, so the lack

of housing is also irrelevant.

In sum, the board has utterly failed to justify its con-

duct by clear and convincing evidence as required by Keyes

l4a

vy. School District No. 1, Denver, Colorado, 413 U.S. 189,

209 (1973). I would, therefore, reverse the district court’s

judgment on this aspect of the case and remand for the

entry of class relief that would assure the termination of

the board’s discriminatory hiring and promotion policies.

The board should be required to establish definitive ob-

jective standards for employment and promotion and to

apply them alike to all personnel ‘‘in a manner compatible

with the requirements of the Due Process and Equal Pro-

tection Clauses of the Constitution.’’ Chambers v. Hender-

sonville City Board of Education, 364 F.2d 189, 193 (4th

Cir. 1966); see also Walston v. County School Board of

Nansemond County, Virginia, 492 F.2d 919 (4th Cir. 1974) ;

North Carolina Teachers Association v. Asheboro City

Board of Education, 393 F.2d 736 (4th Cir. 1968); Wall v.

Stanly County Board of Education, 378 F.2d 275 (4th Cir.

1967).

The district court denied 13 claims pressed by individ-

uals who charged they were prejudiced by the board’s

discriminatory employment policies. It also declined to

allow the case to proceed as a class action embracing ail

black applicants who had been denied teaching positions

or promotions.

The basic errors of law that invalidate the denial of in-

junctive relief also permeate the dismissal of the individ-

ual claims. The court erroneously placed the burden of

proving racial prejudice or discriminatory purpose on the

individual claimants. For example, a black principal, Wil-

liam L. Griffis, who had served for 16 years in a black

school was demoted over the protest of all the teachers in

his school one year after the pupils were integrated. The

district court accepted the board’s conclusory statements

that he was a weak administrator and that his supervisors

had not recommended him. It made no finding of the under-

lying facts about his alleged lack of ability, and it ruled

that Griffis had failed to prove that the board’s decisions

15a

were ‘‘made on the basis of race, or because of any racial

prejudice.’’ However, as I have previously mentioned, the

principles of law dictated by Keyes v. School District No.

1, Denver, Colorado, 413 U.S. 189, 209 ( 1973), and Wright

vy. Council of the City of Emporia, 40 U.S. 451 (1972),

require the school board to assume the burden of proof and

the court to evaluate the evidence by ascertaining the effect

of th school board’s actions, not its motivation.

The class action aspect of the case is not essentially

different from other employment cases involving racial

discrimination for which there is ample precedent for class

relief. E.g., Griggs v. Duke Power Co., 401 U S. 424 (1971);

Walston v. County School Board of Nansemond County,

Virginia, 492 F.2d 919 (4th Cir. 1974); Rock v. Norfolk

and Western Railway Co., 473 F.2d 1344 (4th Cir. 1973) ;

North Carolina Teachers Association v. Asheboro City

Board of Education, 393 F.2d 736 (4th Cir. 1968). Accord-

ingly, I would vacate those portions of the judgment that

dismiss the class action and the claims of individual com-

plainants and remand the case for reconsideration in light

of Keyes and Wright.

16a

APPENDIX B

Judgment of Court of Appeals

[Caption Omitted]

AppgaLt From the United States District Court for the

District of Maryland.

Tis Cause came on to be heard on the record from the

United States District Court for the District of Maryland,

and was argued by counsel.

On ConsmeraTion WHEREOF, it is now here ordered

and adjudged by this Court that the judgment of the said

District Court appealed from, in this cause, be, and the

same is hereby, affirmed.

Wiuuum K. Strate, Il

Clerk

Filed July 24, 1975

17a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Crvi. No. 71-64-T

Joserx H. Morton, WuiumM L. Garris, Mitpourne F.

Huuz, Veronica Apams, Annie C. Yates, Mary Liypa

Prater, infant, through her father, Cuarzes L. PLaTER,

Sr., Mary Tueresa Wasuinoton, infant, through her

mother, Mrs. Doris C. WasHincToN,

Plaintiffs,

Corpvetia E. Kina, Evyora Pryxney, Raymonp F. Sanver-

Lin, Jerome F. TuHompson, Lacey TILiorson, SANDRA

WasHincton Hearns, Kennetn Wricat, Josern A.

Jones, Bertua Key,

Intervening Plaintiffs

Cuartes County Boarp or Epucation, James E. Wison,

individually and as a member of the Charles County

Board of Education, B. Patrick Cox, individually and

as a member of the Charles County Board of Educa-

tion, Josepn L. Garprver, individually and as a mem-

ber of the Charles County Board of Education, Dante.

C. Garpwer, individually and as a member of the

Charles County Board of Education, Joayn L. BowLinG,

individually and as a member of the Charles County

Board of Education, Mrs. Atrrep Paretta Mupp, in-

dividually and as a member of the Charles County

Board of Education, Jesse L. Starkey, individually

and as Superintendent of Schools, Charles County,

Maryland, Carles County Board of Education,

Defendants.

Filed: March 6, 1974

18a

Elliott C. Lichtman, of Washington, D.C., James C. Gray,

Jr., of New York, N.Y. (Rauh and Silard, of Washington,

D.C., Mitchell & Mitchell, of Baltimore, Md.; Jack Green-

berg, James M. Nabrit, III, and Norman Shachkin, of New

York, N.Y., of counsel) for plaintiffs and intervening plain-

tiffs.

William L. Marbury, E. Stephen Derby, Judith K. Sykes,

of Baltimore, Md., and Edward S. Digges, of La Plata, Md.,

for defendants.

Tuomsen, District Judge

This action was instituted in January 1971 by eight black

persons against the Charles County Board of Education

(the Board),’ the persons who were then members of the

Board,? and the Superintendent (Starkey).*

Six of the plaintiffs alleged that they were suing on be-

half of themselves and a class of black persons refused

employment, refused promotions, demoted or discharged

by defendants on grounds of race. They seek damages and

injunctive relief under the Thirteen and Fourteenth

Amendments, under 42 U.S.C. §§ 1981, 1982 and 1983, and

‘The Board had been an appointed board until 1970, when by

statute, Acts of 1970, Ch. 386, Art. 77, §35A, Anno. Code of Md.,

1973 Cum. Supp., it became an elected board. The County School

Board does not control the amount of its budget. The Board of

County Commissioners determines the amount which shall be

allowed to the School Board for each school year, usually in June

for a year beginning July 1.

2 Six of the defendants took office on December 14, 1970, after

their election. No one of them had been a member before that date.

A seventh member took office on the day this section was filed, and

has not been added as a defendant. Two of the defendants (Cox

and Daniel Gardner) resigned, on April 30, 1972, and June 30,

1972, respectively.

* Starkey became Superintendent on July 1, 1969, having been

Assistant Superintendent or Deputy Superintendent since 1965.

19a

under Art. 77, §113* of the Annotated Code of Maryland.

They claim that the amount in controversy for each plain-

tiff exceeds $10,000, and invoke jurisdiction under 28

U.S.C. § 1331, as well as §§ 1343(3) and 1343(4).

Two of the plaintiffs are students in the Charles County

school system, who, through their parents, alleged that

they were suing on behalf of themselves and as represent-

atives of a class consisting of all students attending schools

in Charles County who are being deprived of their civil

rights because defendants have maintained racially iden-

tifiable faculties.

Although counsel had agreed among themselves that de-

termination of the class action issue be delayed until the

trial, the court, after extensive discovery, set the matter

for hearing on November 9, 1973, and Zetermined on that

date that the prerequisites to a class action had not_been

met.*

* Art. 77, § 113 provides:

‘‘ Discrimination on account of race, religion, color, national

origin, or sex unlawful.

“Tt shall be unlawful for the State Superintendent of Schools

or any of his assistants, and for any board of education and any

superintendent of schools or any of his assistants to make any

distinction or discrimination in favor of or against any teacher

who may be employed in any of the public schools of this State,

on account of race, religion, color, national origin, or sex except

where the employment of a certain sex may be reasonably necessary

by reason of the nature of the employment, it being the intent

and purpose of this section that the provisions thereof shall apply

with reference to the appointment, assignment, compensation, pro-

motion, transfer, dismissal, and all other matters pertaining to

the employment of teachers in the public schools in the State of

Maryland.”’

’ The court ruled that the requirements of subsection (a) (1)

of Rule 23, F. R. Civ. P., had not been met, and that the require-

ments of (a) (3) and (a) (4) had probably not been met. The

evidence at the trial supported this conclusion ; the circumstances

surrounding the individual claims varied greatly.

20a

On November 23, 1973, nine persons moved to intervene

as plaintiffs,® alleging acts of racial discrimination at vari-

ous times, the first in 1964 and the last in 1973. The run-

ning of limitations was tolled during the period from the

institution of this case as a class action on January 22,

1971, until this court ruled, on November 9, 1973, that class

action treatment was inappropriate. American Pipe & Con-

struction Co. v. Utah, —— U.S. ——, 42 U.S. L.W. 4155

(1974). Questions of limitations and laches with respect to

some of the claims remain.

The case came on for trial on December 10, 1973. Testi-

mony was taken on twelve days; more than 300 exhibits,

some quite extensive, were offered. At the conclusion of the

plaintiffs’ case, the court granted the motion of the indi-

vidual defendants other than Starkey, for a judgment in

their favor in their individual capacity under Rule 41(b),

F. R. Civ. P., and granted a similar motion by Starkey

with respect to seven of the plaintiffs. Counsel for plain-

tiffs did not object to these rulings. The case proceeded

against Starkey with respect to the claims of the other

plaintiffs, and against the Board with respect to the claims

of all plaintiffs. Elaborate post-trial briefs have been filed,

and oral argument has been heard.

Some facts have been stipulated. The determination of

other facts upon which the rights and obligations of the

several plaintiffs and the several defendants depend re-

quire a consideration of: the history of the Charles County

school system over the years; a mass of statistical infor-

mation;’ the various records of the individual plaintiffs

and of others who were appointed to or considered for the

positions in question; and the credibility and weight of the

®Counsel for plaintiffs had advised the court and counsel for

the defendants on October 1, 1973, that evidence would be pre-

sented at the trial concerning alleged acts of discrimination against

those individuals.

’ Without careful study some of the tables might be misleading.

2la

testimony of the many witnesses who testified with respect

to general policies as well as to the facts particularly

applicable to the incidents in question.

Defendants moved for summary judgment because of

plaintiffs failure to exhaust administrative remedies, but

the parties agreed that the motion be argued at trial. Since

a full evidentiary hearing has been held, a regard for

judicial economy precludes staying decision or dismissing

the case on this ground. There is no need to determine

whether exhaustion of administrative remedies would

otherwise be required, and whether the administrative

remedies would otherwise be required, and whether the ad-

ministrative remedies set out in Art. 77, § 150, Md. Code

(1965 Repl. Vol.), and Art. 77, 4150, Md. Code (1969

Repl. Vol.) are adequate remedies. See Gibson v. Berryhill,

411 U.S. 564 (1973); Humphrey v. Cady, 405 U.S. 504,

517 (1972); Hayes v. Secretary of Dept. of Public Safety,

455 F.2d 798, 799-801 (4 Cir. 1972); Flaherty v. Conners,

319 F. Supp. 1284, 1287 (D. Mass. 1970).

A, Alleged Pattern of Racial Discrimination

(1) History

Charles County is a rural county, with many small com-

munities. It is bounded on the north by Prince George’s

County, a much larger county, adjacent to the District of

Columbia. It is bounded on the other three sides by two

rural counties, Calvert and St. Mary’s, and by the Potomac

River. It has only recently received a substantial increase

in population as a result of the expansion of the Wash-

ington suburbs.

In 1956, one year after the second Brown opinion, 349

U.S. 294 (May 31, 1955), the Board adopted a freedom of

choice policy for students entering the first grade in the

1956-57 school year. All elementary grades were desegre-

gated on a freedom of choice basis by the 1960-61 year,

all middle school grades by the 1961-62 year and all grades,

22a

including high school, by the 1962-63 year. For the 1964-65

year the Board eliminated the requirement that requests

for transfers be approved, and required all parents tu

make an affirmative choice, in order to be sure that the

right of freedom of choice was understood and exercised

without restriction. That is all that was required by even

the subsequent decisions of the Fourth Circuit in 1965 and

1967. Bradley v. School Board of the City of Richmond,

Virginia, 345 F.2d 310 (April 7, 1965); Bowman v. County

School Board of Charles City County, Virginia, 382 F.2d

326 (June 12, 1967). Exercising that freedom of choice,

the parents of 296 black children, out of a total of 4,076,

chose to send their children to formerly all white schools

during the 1964-65 year; only two white children attended

a formerly all black school; and there were only a few

black teachers in the formerly all white schools and a few

white teachers in the black schools. At that time there

were eight predominantly white schools and eight black

schools. |

The freedom of choice doctrine remained the law of the

Fourth Circuit until May 27, 1968, when the Supreme

Court decided Green v. County School Board of New Kent

Jounty, 391 U.S. 430.

Meanwhile, in the summer of 1965 (nearly three years

before the decision in Green), just after Starkey became

Assistant Superintendent, the Board directed the staff to

develop a reorganization plan for the complete integration

of the system by redistricting according to geographical

location, and providing for the necessary new buildings to

take care of such integration as well as the increase in

population of the County. The plan was adopted by the

Board in October, 1965; it was implemented for the high

schools for the 1966-67 school year and for the elementary

schools for the 1967-68 year.

As in many other school systems, the integration of the

schools, followed by the abandonment of merger of some

23a

old schools and the building of some new schools due to

an increase in the population of the county, created new

and difficult problems with respect to teachers and admin-

istrators. The population of Charles County increased

46% (from 32,000 to 47,000) between 1960 and 1970. The

increase was predominantly white." The student popula-

tion increased from 7,410 (of whom 46% were black) in

the school year 1960-61, to 16,358 (of whom only 34%

were black) in the school year 1973-74.

(2) Principals and Other Administrators

The number of black principals has increased from 6

to 8 during the same period, but the number of white

. principals has increased even more rapidly, so that the per-

centage of black principals is now 30.7%, whereas it was

37.5% in 1966-67.

The number of black vice principals has increased from

4 to 6, and the percentage of black vice principals has

remained about the same, 44.4% to 46%.

This integration has required a considerable readjust-

ment of the staffs of the several schools. Beginning with

the high schools in 1966-67, a policy was adopted that when

a school was large enough to have a principal and a vice

principal, if the principal of the school was white, the vice

principal should be black, and vice versa. This policy has

been generally followed.

The number of black administrators in the central of-

fice has risen from 4 to 10, the percentage from 20% to

22%.

No black teacher, principal, vice principal or adminis-

trator has been discharged during the years in question

because of his or her race.

®In 1960 the ratio of white to black was 66-34; in 1970 it was

71-29. A high percentage of the population in 1970 (44%) was

under 18 years of age.

24a

Plaintiffs contend that the abandonment of an Adminis-

trative Intern Program by defendants was racially moti-

vated, and tends to prove a pattern of racial discrimina-

tion. This contention is not supported by the evidence;

if any inference to that effect may be drawn from any of

the evidence, the court finds that it is overcome by the

weight of the evidence to the contrary.

Plaintiffs contend that there has been a pattern of prac-

tice of discrimination against blacks in the hiring and pro-

motion of principals and administrators. The evidence

does not support this contention. Aside from the case of

Mrs. Pinkney, discussed below, the court finds that plain-

tiffs have not proved that any black person was not ap-

pointed principal or administrator because of racial dis-

crimination.

The only occasions on which race was a controlling fac-

tor in the hiring or promotion of principals or vice princi-

pals was to carry out the policy of having a black vice

principal where there is a white principal and a white vice

principal where there is a black principal. The court finds

that this policy at the present time in Charles County

ioes not violate any constitutional right, and is a wise

policy.

(3) Recruiting and Hiring Teachers

The number of teachers has, of course, incre’ sed. Al-

most all of that increase has been in the number of white

teachers; the number of black teachers has risen from

198 to 207, but the percentage of black teachers has de-

creased from 44.2% to 27.4%, for reasons discussed be-

low. In each year at least 17% of the new teachers em-

ployed have been black.

No plaintiff contends that he or she was not appointed

a teacher because of his or her race. Indeed there is no

evidence that any qualified black applicant has been denied

employment as a teacher.

25a

Plaintiffs contend, however, that the recruiting policies

of the Board and superintendent are racially motivated.

To support this argument, they note that the recruiters,

most of whom are white, have over the years visited more

predominantly white colleges and universities than pre-

dominantly black colleges and universities.’ Since all pub-

lic colleges and universities and most private institutions

are integrated, the fact that a majority of the students

attending a particular institution may be white, does not

mean that such institution is not the best place to find

a qualified black prospect. The Constitution does not re-

quire that a school board recruit poor prospects of any

race.

The demand throughout the nation for qualified black

teachers during the years in question has been great;

Charles County offers fewer attractions for black teach-

ers than such communities as the City of Washington and

Prince George’s County.

It is true that more white persons with low certification

have been employed as teachers than black persons with

low certification. Almost all persons with low certifications

have been hired from the local population just before the

school year opened, after efforts to obtain better qualified

persons, black or white, had failed to fill the ranks. The

small percentage of black persons in Charles County who

have a college education, as compared with white persons

who have a college education is the reason why relatively

few of them have been hired. In the last four years only

® The recruiters have regularly visited all of the predominantly

black colleges and universities in Maryland and the District of

Columbia, as well as the predominantly white public colleges and

universities, which are making serious efforts to obtain black stu-

dents; over the years they have also visited some black colleges in

othe states. The number of institutions visited has varied from

time to time. Recently only colleges and universities in Maryland

and the District of Columbia have been visited, but thoze visited

have large numbers of black students in the field of education.

26a

twelve persons with low certifications or no degree have

been hired; of those nine were white and three were black.

Plaintiffs 1so argue that in the most recent years the

average experience of black teachers hired has been great-

er than that of white teachers, and that this shows a pat-

tern of prejudice. The differences are slight, and the tables

plaintiffs refer to show that they are often explained by

the hiring of a very few people who interrupted their

teaching for reasons not shown by the evidence and were

rehired during the years in question.

The court finds that the policies of defendants with re-

spect to the recruiting and hiring of teachers does not

tend to prove a pulicy of racial discrimination.

(4) Secretaries and Custodians

Plaintiffs argue that the high percentage of black cus-

todians and the relatively low percentage of black secre-

taries is evidence of a pattern of racial prejudice. The

evidence does not support this contention. The percentage

of black secretaries (about 18%), is greater than the per-

centage of blacks in Charles County with a high school

education, despite the greater attractions of a job in the

City of Washington or Prince George’s County. No testi-

mony was offered with respect to the hiring of custodians.

B. Complaints to State Board of Education

Sometime before the summer of 1969 the Charles Coun-

ty Branch of the NAACP received complaints from several

persons, in and out of the system, that they had not been

appointed to some position for which they had applied or,

in the case of two principals, that they had been demoted

on account of their race. In June of 1969, before Starkey

became Superintendent and before any of the other indi-

vidual defendants became members of the Board, a disci-

plinary problem arose with respect to a substantial num-

ber of black students at the La Plata Senior High School.

27a

The problem was not handled wisely. Some twenty stu-

dents did not receive their diplomas at the commencement

exercises. The parents of those students complained to the

NAACP. That organization registered complaints with the

State Board of Education on behalf of the several em-

ployees and the students.

The State Board appointed a committee of two blacks

and two white to investigate the complaints, to note any

deficiencies in the progress of integration, and to make

recommendations to the State Board. They were not

charged to apply constitutional or statutory standards.

The committee interviewed many people and made a re-

port, which the State Board discussed with representa-

tives of the Charles County school system and of the

NAACP branch. The State Board then filed a careful opin-

ion, dated July 16, 1970, not purporting to be based on

constitutional or statutory principles, adopting some of

the recommendations of the investigating committee, mod-

ifying some and refusing to adopt others. The opinion

also included some good advice to the Charles County

Board.

The court finds that a good faith effort to comply with

almost all of the recommendations has been made. Any

failure to comply with one or more of them does not tend

to prove the intention of any defendant to discriminate

against black people because of their race.

C. H.E.W. Action

In the spring of 1973 the Board, through Starkey, ap-

plied to the Federal Department of Health, Education and

Welfare (H.E.W.) for funding under the Emergency

School Aid Act (ESAA) of a ‘‘ Basic Project’’ and a ‘‘Spe-

cial Reading Project.’’ Ted Nixon, a Civil Rights Special-

ist in the Regional Office of H.E.W., went to Charles

County with a letter from the Regional Civil Rights Di-

rector to Starkey which called attention to certain pro-

28a

visions of the Regulations, stated that Charles County had

had a disproportionate reduction of black principals since

the 1964-65 school year, and asked that certain informa-

tion be submitted within three days. While in the County,

Nixon interviewed various persons, and Starkey sent him

a letter dated June 7, giving the requested information

about twelve persons.

On June 22, 1973, the Regional Office sent Starkey a

letter from Walker F. Agnew, the Regional Commission-

er,’ citing ESAA Regulations, 45 CFR § 185.43(b) (2),

and 4 706 (d) (1) (B) of Public Law 92-318," and stating

that because of the demotions of Mrs. Elnora Pinkney

and James Sweatt from principal to vice principal in

1965-66 and the failure to appoint them as principals in

subsequent years, and because during the visits of Nixon

to Charles County ‘‘the resolution of the problem was

not effected,’’ the Charles County application was re-

jected without a hearing.

Defendants do not question the right of H.E.W. to deny

funding if the statute and the regulations are not complied

with. Defendants properly note that the language of that

statute and of the regulations goes beyond the require-

ments of the Constitution and the statutes upon which

plaintiffs rely in his case. Defendants also argue that

some of the conclusory statements in the Agnew letter

should not be given much, if any, weight by this court.

The court agrees.

D. Burcen of Proof

The evidence does not show a pattern of racial discrim-

ination. See particularly the facts set out above under the

headings ‘‘ Principals and Other Administrators’’ and ‘‘Re-

eruiting and Hiring Teachers.’’

1° But evidently prepared and sent by Nixon, because a copy

was sent to Agnew.

1 Codified as 20 U.S.C. 1605 (d) (1) (B).

29a

This case is nothing like Chambers v. Hendersonville

City Board of Education, 364 F.2d 189 (4 Cir. 1966),

North Carolina Teachers Assn. v. Asheboro City Board

of Education, 393 F.2d 736 (4 Cir. 1968), or Walston v.

County School Board of Nansemond County, —— F.2d

—— ( 4Cir. 1974).* In each of those cases a substantial

number of black teachers had been discharged when the

schools were integrated. In the instant case there is no

claim or evidence that any teacher or principal was dis-

charged because of his or her race. Over the years three

black principals have been demoted.’* One of the three

(William Griffis) was an original plaintiff; one (Mrs.

Pinkney) intervened as a plaintiff in the fall of 1973;

their cases are discussed individually below. The third

(James Sweatt) is not a plaintiff and did not testify in

this case; he made a statement to the State Board that

he did not think he had been discriminated against. In

the case of Griffis this court has found that the principal

was not demoted on account of his race; in the case of

Mrs. Pinkney, the court is granting relief because of fail-

ure to appoint her to another principalship. That one

instance does not prove a pattern.

The burden of proof remains on each plaintiff to prove

his or her case by a preponderance of the evidence. Of

course, each plaintiff may rely on the testimony of the

other plaintiffs and the evidence offered on behalf of all

of them, as well as any evidence offered by defendants.

E. Individual Claims

(1) Infant Plaintiffs—Racial Composition of Faculties

Counsel for infant plaintiffs and their parents have pre-

sented a table showing the percentage of white and black

%?Nor are the facts of this case like those in Chance v. Board

of Examiners and Board of Education of the City of New York,

330 F. Supp. 203 S.D. N.Y., Mansfield, J., 1971), affirmed 458

F.2d 1167 (2 Cir. 1972), or any of the other cases cited and

relied on by plaintiffs.

** Principals have tenure as teachers not as principals.

30a

teachers in each school over a period of years, and argue

that this shows racially identifiable faculties throughout

the system. Plaintiffs argue that the percentage of black |

teachers in any school should never be more than 25%

more or less than the percentage of black teachers through-

out the system.

The law controlling this case is set out in Nesbit v.

Statesville City Board of Education, 418 F.2d 1040 (4

Cir. 1969), as follows:

‘All plans must include provisions for the integra-

tion of the faculty so that the ratio of Negro and

white faculty members of each school shall be approx-

imately the same as the ratio throughout the system.

In determining the ratio, exceptions may be made for

specialized faculty positions;’’ 418 F.2d at 1042.

That decision followed closely United States v. Mont-

gomery Board of Education, 395 U.S. 225 (1969), where

the Court approved Judge Johnson’s order that the board

must move toward a goal under which in each school the

ratio of white to Negro faculty members is substantially

the same as it is throughout the system. 395 U.S. at 232,

°36.

The tables show that Charles County has been moving

toward the goal with reasonable speed. The ratio sug-

gested by the attorneys for the plaintiffs has been substan-

tially attained in all but five of the twenty-six schools in

the current school year. One of the five is the Vocational

Technical Center, which includes many ‘‘specialized fac-

ulty positions.’’ See 418 F.2d at 1042, quoted above. In

three of the other four schools the shifting of one teacher

would bring the school into conformance with plaintiffs’

suggested test; in one other school the shifting of two

teachers would be necessary.™*

‘* There are five other schools in which the variance from plain-

tiffs’ suggested test is less than one percent. This is substantial

compliance.

3la

Teachers are not fungible. Some are trained in one

subject, some in another. Some have developed special

skills for dealing with particular subjects or with stu-

dents or groups of students having particular problems.

The purpose of a school system is to give students the best

possible education, including preparation for life in Amer-

ica in the last quarter of the Twentieth Century. This

must be done in accordance with constitutional require-

ments established by the Supreme Court. It is not always,

if ever, an easy task. See discussion in Walston v. County

School Board of Nansemond County, supra, F.2d at

—— (slip opinion p. 15).

Moving teachers who have lived or taught or both in a

particular rural area for years and are familiar with the

problems of that area may be not only unkind to the teach-

ers but harmful to the educational progress of the stu-

dents. Nevertheless, this court is bound by the decisions

of the Supreme Court and of the Fourth Circuit to de-

clare that the Board and the Superintendent should take

steps to assure that in the schools without specialized

faculty positions ‘‘the ratio of Negro and white faculty

members shall be approximately the same as the ratio

throughout the system.’’ 418 F.2d at 1042.

That should be done before the opening of the 1974-75

year.’ Efforts should be made to change the ratio in the

Vocational Technical Center whenever that is practicable.

In view of the progress made by defendants, it would

not be appropriate for this court to issue the injunction

sought by the two infant plaintiffs.

>The court recognizes the difficulties which exist hecause of the

small number of teachers in some of the schools and the fact that

a single retirement, death or illness before or during a particular

school year may create an imbalance. Nevertheless, the Board and

staff should make every reasonable effort to meet the required test.

32a

(2) Demotions

Elnora Pinkney

From 1952-53 through 1965-66 Mrs. Pinkney was an ele-

mentary school principal at the Bel Alton High School,

which was conducted in the same building as the Bel Alton

High School. Both schools had only black pupils during

that period. In 1965-66 Mrs. Pinckney was principal of

grades 1-6, with 275 students, and James Sweatt, also black,

was principal of grades 7-12.

As a result of the plan of integration, Bel Alton became

a consolidated school, with one principal and a vice prin-

cipal. Grades 1-5 and 9 were the only grades at Bel Alton

during the year 1966-67. Of the 602 students in the school

that year, 405, of whom 216 were white, were in grade 9.

Bel Alton was classified by the State Department of Edu-

cation as a high school, and its principal had to hold a

certificate as a secondary school principal. Mrs. Pinkney

did not have such a certificate. James Campbell, a white

man, who had such a certificate, became principal of the

consolidated school. Mrs. Pinkney became vice principal,

in accordance with the general policy of having the vice

principal black when the principal was white, and vice

versa.

As vice principal in 1966-67 Mrs. Pinkney went onto

the vice principal scale. Although her salary in 1966-67

was about the same as her salary as principal in 1965-

66, she made less than she would have made as a principal,

depending upon the size of the school.

Starkey knew that Mrs. Pinkney wanted to be a prin-

cipal, and told her when she was appointed vice principal

of Bel Alton in the summer of 1966 that he hoped she

would take the position until something better came along.

Mrs. Pinkney served as vice principal at Bel Alton for

three years, ending in 1968-69.

Four principals for elementary schools were appointed

or shifted for the year 1969-70, because of the opening of

33a

a new school, the Gale-Bailey School. Mrs. Pinkney filed a

timely application for appointment as a principal for the

year 1969-70.

The principalship of Gale-Bailey, a school with 463 stu-

dents, was filled by the transfer of Dale Arbogast (white)

from Indian Head, 738 students. The principalship of

Indian Head was filled by the transfer of Fred Berry

(white) from Dr. Mudd, 564 students. The principalship

at Dr. Mudd was filled by the transfer of a white woman

from Waldorf, 320 students.

The principalship at Waldorf was filled by the appoint-

ment of a white woman, who had only a provisional cer-

tificate. None of the four persons appointed or shifted

had greater qualifications than Mrs. Pinkney, whom the

court finds to have been a thoroughly competent principal.

Shortly thereafter Mrs. Pinkney applied for and was

appointed to the position of pupil personnel worker in

the central office. She was offered the principalship of a

very small school in 1973, when she was 65 or 66 years

of age, but she naturally preferred to: remain as pupil

personnel worker, for which she had taken additional

courses.**

The court finds that it was not unreasonable or discrim-

inatory to appoint Campbell to be principal of the com-

bined Bel Alton school in 1966, nor to appoint Mrs. Pink-

ney vice principal of that school. Moreover, limitations

had run on acts in 1966 before this suit was passed.

But no adequate justification has been shown for passing

over Mrs. Pinkney in favor of a white person in the four

appointments of elementary school principals in the sum-

mer of 1969. The court does not depart from its finding,

set out above, that there was no pattern of prejudice

‘* The small size of the school would have meant a relatively

low salary.

34a

in the Charles County school system during the years in

question. But the court does find that race was a factor

in denying Mrs. Pinkney appointment as a principal be-

fore and during the year 1969-70, when a less qualified

white woman and three other persons were appointed to

elementary school principalships for which Mrs. Pinkney

had applied.’

The court concludes that Mrs. Pinkney should have

been appointed principal of the Indian Head School for

the year 1969-70 and subsequent years. The salary she

would have received and would continue to receive in that

position is substantially greater than the salary she has

received and presumably will receive in her present posi-

tion. Counsel should agree upon the figures to be included

in the judgment.”

Plaintiff has asserted a bona fide claim of more than

$10,000, and this court has jurisdiction to grant relief to

her.

William L. Griffis

Griffis came to the Charles County system in 1951 as

principal of a two teacher elementary school; in 1954 he

became principal of a six teacher elementary school; in

1961 he became principal of the Mt. Hope Elementary

School, an eleven teacher school. That school became in-

tegrated for the school year 1967-62 Wheress iz, 1966-67

there had been 268 pupils, all black, in 1967-68 there were

293 pupils, 188 black, 105 white.

Griffis is a fine, sympathetic person, interested in people

and anxious to help them. He is really too sympathetic

to be a fully effective administrator.” For several years

‘The court does not accept defendants’ argument that Mrs.

Pinkney was too old for the job.

'S Including any effect on retirement benefits.

'’* E.g., he had not submitted an unsatisfactory report on a teacher

over many years.

35a

before 1967-68 there had been some justified and some

unjustified complaints about his effectiveness as a princi-

pal. In October 1967 Griffis met with Jenkins, Starkey and

the chief personnel officer of the system, and the areas

of ineffectiveness were discussed. In the spring of 1968

two of the supervisors were critical of his performance.

When it was rumored that Griffis would be transferred

to another position the teachers at the school supported

him; the parents of the students were divided. At the

end of the year 1967-68, Jenkins transferred Griffis to

the position of Administrative Assistant at the Indian

Head School, a large school with 666 white, 478 black and

7 ‘‘other’’ students, and appointed a black man from out-

side the system to be principal of the Mt. Hope School.”

Griffis protested his demotion to the National Education

Association, but the local organization of the NEA could

not conduct an investigation because Griffis did not consent

to the opening of his confidential file. He also refused to

allow his file to be shown to a group of parents who pro-

tested his removal as principal at Mt. Hope.

Griffis was at Indian Head for two years. Thereafter,

he has been assigned to various positions in various

schools.

Beginning in February 1969 Griffis submitted four ap-

plications to be principal of an elementary school, but

failed of appointment in each case. Griffis also applied for

the position of Pupil Personnel Worker which Mrs. Pink-

ney, another plaintiff herein, received.

During the two years Griffis was Administrative As-

sistant at the Indian Head Elementary School, he was crit-

2° Only teachers have tenure; principals and vice principals have

tenure only as teachers. The salary Griffis received as Aministra-

tive Assistant at Indian Head was $12,073.43. more than he had

received during the past year, but less than he would have received

($12,726.80) if he had continued as principal at Mt. Hope.

36a

icized for spending too much time on routine matters

and not enough time on major responsibilities, and be-

cause he did not show initiative in the area of instruction.

Each of the two principals under whom he served stated

that they could not recommend Griffis for appointment to

the principalship of an elementary school.

Six of the thirteen elementary principals appointed be-

tween 1969-7C and 1973-74 have been black.

Anyone without a stone heart must be sympathetic with

Griffis. This court cannot find, however, that his demotion

from principal of the Mt. Hope school to his position at

the Indian Head school and the subsequent refusals to

appoint him as principal of another school were not made

in a good faith effort to improve the quality of the admin-

istration of the schools and to find the spot where Griffis’

personality and abilities could be used to best advantage.

The decisions were not made on the basis of race, or be-

cause of any racial prejudice.

(3) Failure to Promote

Joseph A. Jones

Dr. Jones, an intervening plaintiff, who was a teacher

of health and physical education in Charles County in

1964-65 and is now on the faculty at Coppin State College,

asserts no claim for damages and does not seek reinstate-

ment or appointment to any position. It is not clear what

relief, if any, he seeks, except to join in the claim for a

broad injunction. He testified that sometime prior to the

1965-66 school year, he applied for the position of Super-

visor of Physical Education for that year. No one was

appointed until two years later. There is no record of his

application for that position, and the evidence shows that

he applied for a position on the Coppin faculty in April

1965 and was appointed. Jones contends that the Charles

County position would have been given to a white man

37 ag

if he had not applied and protested the proposed appoint-

ment. The evidence does not justify any such finding, and,

in any event, the claim is barred by limitations and laches.

His second claim is also barred by limitations and laches.

He testified that he made application in 1965 for a posi-

tion as vice principal after a notice of vacancies showing

that four such positions would be open. He contends that

he was only considered for one of those positions—in a

black school. This is not improbable, because the system

was in the early years of desegregation and integration,

see ‘‘History,’’ above, but Jones delayed filing suit for so

long that neither he nor defendants have any record of

his application, if indeed it was made. There is a form,

filled out by Jones, indicating both that he wished the

same assignment that he had and that he did not expect

to continue teaching in Charles County. The correspond-

ence with respect to his resignation was produced by de-

fendants, and does not support Jones’ testimony.

Raymond F. Sanderlin

Between May 1971 and January 1973, Sanderlin filed

seven applications for various positions in the Charles

County system. One of the applications was successful.

He claims that the rejections of his six other applications

were motivated by racial considerations. The court finds

that in none of the rejections did racial discrimination

play any role.

Sanderlin’s academic background and work experience

were in the field of special education. He was a special

education teacher from 1966 to 1971. He earned a master’s

in special education in June 1972; all of the courses which

he took to earn that degree were in that field.

In May 1971 Sanderlin’s application for admission to

the Administrative Intern Program was rejected. Eight

blacks had applied for admission to that program and

38a

twenty-one whites; four blacks and six whites were ac-

cepted. All candidates for the position were required to

take the Miller Analogy Test, on which Sandrlien scored

very poorly.

The Miller Analogy Test is a recognized test used by

many graduate schools in determining which applicants

should be admitted. The use of that test in screening ap-

plicants for admission to the Administrative Intern Pro-

gram is quite different from the use of the NTE Test con-

demned in Walston v. County School Board of Nansemond ~

County, —— F.2d —— (4 Cir. 1974), where (1) the NTE

Test was used to determine which experienced teachers

should be discharged, (2) the developers of the test stated

that it was ‘‘least valid when applied to experienced teach-

ers,’’? and (3) where the use of the test as the sole criterion

resulted in the discharge of fifteen black teachers and only

two white teachers. There was no such disproportionate

result from the use of the Miller Analogy Test as one

of the factors for admission into the Administrative Intern

Program. Nor was use of the Miller Analogy Test subject

to the criticisms of the tests which were discussed in

Chance, supra, 330 F. Supp. at 209 et seq., 458 F.2d at

1170 et seq., 1174 et seq. ,

In October 1971, Sanderlin unsuccessfully applied for a

position as a transportation specialist," a position which

encompassed responsibilities such as setting up bus routes,

assessing transportation needs, and compiling mileage

records. Sanderlin had no background in that area. Two

persons were chosen for the positions: Otto Williams

(black) and Charles Wineland (white). Wineland had

21 Sanderlin claims not to have received any response to some

of his applications. The Board did not have a large enough clerical

staff to reply individually to each of the many applications re-

ceived for all sorts of positions. Notice of the availability and

notice of the filling of each position were posted on school bulletin

boards: thus every staff member who checked the boards could

learn of the status of any application he had submitted.

39a

been certified in transportation by the State Department

of Education; Sanderlin had not; it is not clear whether

or not Williams had been certified.

In November 1971, Sanderlin applied for the position

of ‘‘learning disabilities teacher,’’ a position for which

he was qualified. He received that position.

In November 1971, Sanderlin again applied for admis-

sion to the Administrative Intern Program. He was

screened by a committee of six people in February; he

was recommended by three, while the other three recom-

mended him with reservations. He was appointed to the

program by a letter dated March 3, 1972, but claims that °

he never received the letter. Whether or not Sanderlin

received the letter became unimportant when the funding

from the program was cut off before Sanderlin would have

entered the program.

In May 1972, Sanderlin unsuccessfully applied for the

position of principal. He did not then meet the minimum

requirements for certification to be a principal, because

he lacked the required courses in administration and su-

pervision, as well as particular courses which are required

depending upon whether certification is sought as an ele-

mentary or a secondary school principal.

Sanderlin unsuccessfully applied for the position of ‘‘Su-

pervisor of Special Education’’ in the summer of 1972. He

and two other candidates were screened, but the screen-

ing committee recommended a white candidate who not

only had the formal preparation which Sanderlin had,

but also had had administrative experience in Prince

George’s County. On the screening committee was James

Sweatt, a black man, who was then Supervisor of Special

Education and would have been familiar with Sanderlin’s

performance as a teacher over several years.

In January 1973, Sanderlin applied to be a diagnostic

prescriptive resource teacher. The position was not fund-

ed, so no one was chosen.

40a

The court finds that racial discrimination played no

part in the rejection of any of Sanderlin’s applications.

Cordelia King

Mrs. King claims that she was refused appointment as

a principal or vice principal on several occasions because

of her race.

After 20 years as a guidance counselor, Mrs. King ap-

plied in May 1971 for admission into the Administrative

Intern Program, which was designed to develop principals,

vice principals and other administrators. At the same time

she applied for whatever positions as principal or vice

principal might be open. She was accepted for admission

into the Administrative Intern Program, but refused the

opportunity because she learned that she could not be in

that program and at the same time be a principal or a

vice principal, and she hoped to be appointed to such a po-

sition at that time.

Mrs. King overlooked the fact that she needed 34 more

semester hours to meet the minimum requirements set by

the State Board for certification to be a principal, and the

evidence shows that she was not eager to take such courses.

When, during the previous autumn, her certificate to be

a guidance counselor was in danger of not being renewed

because she had not kept it green by taking six credit hours

in her field in ten years, she asked Starkey to exercise his

option to waive the requirement, and he did so. She wrote

him a letter of appreciation in January 1971, in which

she said: ‘‘ Aside from saving many dollars, time and effort

for me, it gave me peace of mind to return fully to the

business at hand—counseling students. This is my calling

and one which I love dearly.’ *

She was not appointed a principal or vice principal in

1971 or in the two subsequent years. It is interesting to

22 Mrs. King is obviously an able and forceful guidance counselor.

4la

note that some of the people in the Intern Program have

been appointed.

Although both sides have argued many points, including

the general policy of having a white vice principal when

there is a black principal, and vice versa, the court finds

that the reason Mrs. King was not appointed to the posi-

tions she sought was her lack of certification for a position

as principal and her lack of willingness to do the work

necessary to obtain it.** There was no racial prejudice or

discrimination involved.

Kenneth Wright

Wright was employed by the Board as a general mainte-

nance worker at the G-2 (semi-skilled) level from July

1967 until July 1973, when he resigned to take a higher

paying position with another employer.

His first claim arises from the hiring of a white man

Samuel Oliver, in November 1971, at the G-3 (skilled) lev-

el, with higher pay than Wright and with supervisory

status over him. Oliver had special qualifications to be

hired at the G-3 level; he had experience in carpentry, ma-

sonry, grading, painting and paperhanging. Wright’s ex-

perience was less than Oliver’s, and it was believed that

Wright would benefit by working under him. No racial

factor motivated the hiring of Oliver at the G-3 level

with supervisory status over Wright.

Wright’s second claim stems from the promotion of

George Scott, a white man, to the only G-3 opening avail-

able for the 1972-73 school year, rather than Wright. Both

the Director of School Facilities for the Board, and the

foreman of the Maintenance Department believed in good

= Defendants have reasonably believed that a person should not

be appointed a vice principal unless he or she was prepared to

advance to principal; they do not want a vice principalship to be

a terminal job.

42a

faith that Scott’s talents were superior to Wright’s at

that time. Their evaluations were of the sort that super-

visors often have to make. Their judgments were not in-

fluenced by any racial factor. A year later, in the summer

of i973, Wright was offered a promotion to the G-3 level,

which he declined, because he was about to resign to take

a position with another employer.”

(4) Terminations

Amnie C. Yates

Mrs. Yates was employed by the Board as a cafeteria

manager from 1963 to 1968.

In June 1968, Mrs. Margaret Posey, Supervisor of the

School Lunch Program, sent a memorandum to all prin-

cipals enclosing job specifications for cafeteria manager

and stating: ‘‘All managers for 1968-69 will be expected

to assume the full responsibilities listed.”’ Theretofore

some of those duties had often been performed by prinel-

pals, school secretaries, teachers and students. Without

objection from her principal, Mrs. Yates had arranged

for one of her assistants to perform a part of her duties.

In July 1968, Mrs. Posey conferred with Mrs. Yates and

her principal. Mrs. Yates was told of the new policy, and

testified that she got the impression that her principal

thought she was not qualified for the job, because it would

entail more paper work than she could handle. Mrs. Posey

told Mrs. Yates that if she felt that she couldn’t handle

the responsibilities of the position as manager, she was

assured of a position as a full-time cook. Mrs. Yates there-

upon submitted her resignation.

A white woman was promoted to cafeteria manager for

the school for the year 1968-69, and another for the year

1969-70. In the summer of 1970, a black woman was ap-

24 This offer was made before Wright intervened in this case.

43a

pointed and served until November 1970, when Mrs. Yates’

daughter was appointed and has held the position ever

since.

The preparation of the job description was a good faith

effort to upgrade the position of cafeteria manager

throughout the system; the conference with Mrs. Yates

was a legitimate attempt to assure that she knew her

responsibilities and was willing to carry them out. There

was no racial discrimination.

Milbourne Hull

After seven years as a teacher of vocational agricul-

ture, and 23 years as an Assistant Professor of Agricul-

ture with the Extension Service of the University of Mary-

land from 1944-1967, Hull was employed by the Board

as Assistant in Federal Programs for the school years

1967-68 and 1968-69. His salary of about $14,000 was fund-

ed principally by the Federal Government, the rest by the

Maryland State Department of Education and Charles

County.

The arrangement did not work out well. Starkey felt that

Hull was a good liaison man with the Federal Government,

but that he was not a good administrator. During the year

1968-69 some of his responsibilities were assigned to others.

In February 1969 Starkey advised Hull that the pro-

posed budget for 1969-70 eliminated the position Hull held,

but that it provided for a joint program with St. Mary’s

and Calvert Counties. Starkey said that he would keep

Hull advised so that he could apply for the tri-county po-

sition if he was interested.

The tri-county program did not materialize, not through

any fault on the part of Charles County, and the Charles

County budget for 1969-70 as finally passed eliminated the

position of Assistant in Federal Programs. The position

44a

was reinstated in the budget for the following year and

filled by another black man.

On May 17, 1969, Hull asked to be appointed Assistant

Superintendent or Coordinator of Federal Programs or

Coordinator of Recruitment of Personnel, positions which

did not exist.

On June 27, 1969, Starkey informed Hull that the funds

for the tri-county program for federal programs had been

eliminated from the budgets of all three counties and re-

minded him that no funds had been provided for the posi-

tion of Assistant in Federal Programs. He informed Hull

that his contract terminated June 30, 1969, but that de-

fendants could provide Hull with work for about ten days.

He suggested that Hull contact Leviner, the Director of

Personnel, about teaching positions which might be avail-

able.

Hull was screened for the position of administrative

assistant to the superintendent on July 3, 1969, along with

three others. The Screening Committee recommended J ohn

Bloom for the position. Hull was also recommended with

the observation that he lacked school administrative expe-

rience. The position was not filled.”

He was given an opportunity to apply for a position as

teacher or vice principal, but told Starkey that he was

not interested in teaching and would accept a vice princl-

pal position only with the understanding that he could re-

sign upon fifteen days’ notice.

Hull secured the services of an attorney, James Mitchell,

who by letter of July 30, 1969, requested that the Board

employ Hull during August 1969, in order to enable him

to seek another job. Hull was given a position from August

7 to August 31. He obtained employment with H.E.W. in

25 Later, other persons, white and black, applied for the position,

including Mrs. Bertha Key, but the position was not filled during

that school year.

45a

Charlottesville late in 1969, and later at Temple Univer-

sity, at salaries lower than his Charles County salary.

Hull had no tenure and knew it. The termination of

the position he held in 1968-69 was not due to his race.

Starkey was willing to give him certain jobs, but not those

which Hull unrealistically asked for.

(5) Failure or Refusal to Hire

Mrs. Bertha W. Key

Mrs. Key makes two claims of discrimination. In her

first claim, she alleges that she applied for the position

of Reading Coordinator in Charles County in 1963-64, but

was denied the position on the basis of her race. Mrs. Key

first asserted that claim in November 1973 when she in-

tervened in this case, almost ten years after any such

claim accrued. Her first claim is barred by the statute of

limitations.”

Mrs. Key’s second claim stems from her application for

the position of Administrative Assistant to the Superin-

tendent in August 1969. Mrs. Key applied for the position,

and was screened for it. At her screening session, several

of the interviewers expressed an interest in hiring Mrs.

Key for the position of administrative assistant to a prin-

cipal, but Mrs. Key was only interested in the position

of Administrative Assistant to the Superintendent. Be-

cause of severe budget cuts, that position was not funded

or filled.”

She was not discriminated against on the basis of race.

*¢ The statute of limitations was tolled on this claim from January

22, 1971, until November 1973. See Class Action discussion, above.

The claim was already barred when this action was filed.

*TIf the position had been filled, it is doubtful that Mrs. King

would have been appointed; each of the five persons who inter-

viewed her, including two blacks, recommended her for the position

with reservations.

46a

Sandra Washington Hearns and Lacey Tillotson

In late May 1968 Mrs. Hearns, Miss Tillotson and an-

other black woman came to Charles County to interview

for two summer positions in social work, one with a Title I

program, and one with Head Start. Two of the three now

claim that they were discriminated against on the basis

of race. The two jobs were awarded to two white women,

who had the necessary qualifications, but all of the rec-

ords, except those of the two women who were hired, were

lost or destroyed before Mrs. Hearns and Miss Tillotson

asserted any claim of discrimination. The first knowledge

any of the defendants had of such a claim was October 1,

1973. Although Mrs. Hearns and Miss Tillotson inter-

vened as plaintiffs in November 1973, they did not testify

either in person or by deposition, and the evidence offered

in support of their claims is sketchy, at best.

Plaintiff Hull testified that he interviewed both women;

that they were well qualified for the jobs; that immediately

after he interviewed them, he was called to Superintendent

Jenkins’ office and was told that a white applicant for one

of the positions had to have an immediate answer, and

asked Hull’s advice. Hull did not object to her appoint-

ment and did not inform Jenkins or Starkey, who was also

present, that he had just interviewed three well qualified

black applicants; there is no evidence that Jenkins or

Starkey ever heard of them.

Although the two social workers who were hired were

white, most of the staff in the combined programs was

black. It seems that there would be some advantage in

having a black social worker, but the evidence in the case

does not justify a finding that they were not appointed

because of racial discrimination.

Jerome Thompson

In February 1969 the Board and staff were looking for

a Director of Purchasing. Thompson, who had worked

47a

for the system as an accountant for two months before

going into military service years before, and who had done

accounting work in the service, learned of the opening, and

applied for the position of Assistant in Purchasing.” He

did not have a master’s degree, which is a prerequisite to

certification as director; indeed he did not have even a

bachelor’s degree, which is required for an Assistant in

Purchasing, and he has not yet obtained his bachelor’s.

He was screened on March 3, 1969, along with several

others, and John Gee, an experienced principal with a mas-

ter’s degree, who had also applied, was chosen on March

7, to assume the position on July 1. Meanwhile, on March

6, Thompson had applied for and obtained a job with the

AAA, and started work on March 7. There was no racial

prejudice involved.”

Joseph H. Morton

The Board opened its first Vocational Technical Center

at high school level in September 1969, and during the

1968-69 school year sought a director for the center, a posi-

tion equivalent to that of a high school principal. The

policy of the Board was to require a master’s degree for

appointment as principal; a master’s is a requirement for

certification as a principal by the State Board of Educa-

tion.** Two qualified persons had applied for the position

| 2* The titles of Director of Purchasing and Assistant jin Purchas-

ing describe similar positions, which are labeled differently depend-

ing upon the degree which the person who holds the position has.

A person with a master’s would he a Director of Purchasing; one

with only a bachelor’s would be an Assistant in Purchasing.

2° Plaintiffs claim that Gee was shifted to the position of Director

of Purchasing because he was a poor principal. It is more likely

that Gee was not happy in his principalship and therefore applied

for the job, for which he was qualified and Thompson was not.

* This policy was regularly followed by the County Board at

the secondary level ; the only two exceptions have been one black

man as principal who was within six months of obtaining his

48a

but had withdrawn their applications, and Jenkins and

Starkey (then Deputy Superintendent) hoped that the

Board would modify the requirement. A staff member got

in touch with Morton, who was then an instructor in indus-

trial arts in Prince George’s County, having previously

taught in Charles County and having had work experience.

Morton had a bachelor’s degree in industrial arts and had

taken some graduate courses.

Morton never filed a formal application for the position

of director of the new center. He did speak to Starkey, and

met with Jenkins and Starkey on March 26, 1969. They

told him that the Board would have to decide whether or

not it would waive the master’s requirement. Jenkins and

Starkey took the matter up with the Board, but since three

of the five members were retiring in May, the Board de-

cided that the choice of a director should be made after the

new members had taken office.

Morton had an offer of a position in another system as

to which he had to make a decision promptly. Accordingly,

he talked to Starkey on the phone four or five times, and

withdrew his application in early May, before the new

board members met. He took the other job and does not

claim that he has lost any money as a result of not_obtain-

ing the directorship.

The Board stuck to its requirement of a master’s de-

gree, and appointed a white man with a master’s and who

was certified in administration, but had no experience in

vocational education.

Morton testified that he felt he had been ‘‘given a run

around.’? The court does not find that to be a fact, and

master’s and one black man as acting principal for the remainder

of a school year. There have been some exceptions at the elementary

level. but one black and one white principal without master 8

degrees have been demoted, and all principals now have master’s

degrees.

49a

finds that he was not denied employment as director for

any racial reason.

Veronica Adams

Miss Adams completed the commercial course at a high

school in Prince George’s County and graduated with hon-

ors in June 1969. She lived in that county with an aunt,

who persuaded her to apply for a position with the Charles

County Board in August 1969. She was interviewed by

Douglas Kincaid, who had just assumed the position of

Director of Personnel. She filled out an application in

which she wrote an incorrect telephone number. Kincaid

obtained her school records, and attempted to reach her

on the telephone three or four times to come in for a typing

test. It was the policy at that time to make such appoint-

ments by telephone and to write to the applicant only if

she had not given a phone number where she could be

reached.

Miss Adams made no effort to follow up her applica-

tion (except possibly for one phone call, of which neither

she nor defendants have any record). She made no effort

to get any other job for at least a month; she cannot re-

member where she tried to get a job, but was employed by

a Washington concern in December 1969. She worked at

that job for two and a half years. She did not make or file

any complaint or grievance to or with the State Board or

the County Board or any member thereof.

Charles County then had about 17 black secretaries out

of a total of about 76. There is no evidence that any other

black applicant for a position as secretary was ever turned

down. Defendants would like to hire more black secre-

taries, but the competition from Prince George’s Uounty

and the many offices in Washington make this very difficult.

Miss Adams was not denied employment by the Board

for any racial reason.

50a

ConcLUSION

Counsel should prepare a judgment order embodying (1)

a declaratory judgment with respect to the racial compo-

sition of faculties, (2) a judgment in favor of Elnora Pink-

ney, and (3 a judgment denying all other claims, in

accordance with the opinion. The judgment should also

contain an award of counsel fees in accordance with a

supplemental opinion which will be promptly filed.

/s/ Roszel C. Thomsen

United States District Judge

5la

APPENDIX D

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fourteenth Amendment to the United States Constitution

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, lib-

erty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of

the laws.

United States Code

42 U.S.C. § 1981. Equal rights under the law

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give evi-

dence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as

is enjoyed by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and exactions

of every kind and to no other.

42 U.S.C. § 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

52a

Maryland Constitution

Article VIII 41. General Assembly to establish system

of free public schools.

The General Assembly, at its First Session after the

adoption of this Constitution, shall by Law establish

throughout the State a thorough and efficient System of

Free Public Schools; and shall provide by taxation, or

otherwise, for their maintenance.

Maryland Code, Article 77

§ 6. Duties

The State Board of Education shall, to the best of their

ability, cause the provisions of this article to be carried

into effect. They shall determine the educational policies

of the State; they shall enact bylaws, rules and regulations

for the administration of the public school system, which

when enacted and published shal] have the force of law.

For the purpose of enforcing the provisions of this article,

and the enacted and published bylaws, rules and regula-

tions of the Board, the State Board of Education shall,

‘f necessary, institute legal proceedings. The State Board

of Edueation shall, without charge and with the advice

of the Attorney General of Maryland, explain the true

infent and meaning of the law, and shall decide all con-

troversies and disputes that arise under it, and their deci-

sion shall be final; and the secretary of the State Board

of Education shall have authority to administer oaths, in

any part of the State, to witnesses in any matter pending

before said Board.

§ 113. Diserimination on account of race, religion,

color, national origin, or sex unlawful.

It shall be unlawful for the State Superintendent of

Schools or any of his assistants, and for any board of

education and any superintendent of schools or any of his

53a

assistants to make any distinction or discrimination in

favor of or against any teacher who may be employed in

any of the public schools of this State, on account of race,

religion, color, national origin, or sex except where the

employment of a certain sex may be reasonably necessary

by reason of the nature of the employment, it being the

intent and purpose of this section that the provisions

thereof shall apply with reference to the appointment, as-

signment, compensation, promotion, transfer, dismissal,

and all other matters pertaining to the employment of

teachers in the public schools in the State of Maryland.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.