# Petition — Morton v. Charles County Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1230%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 1034 ## Text jncin 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, v. 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 > » al 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; (c) black teacher applicants had to meet 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 3 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. ) 4 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 5 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 7 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 : 4 i mc 9 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). 10 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). 11 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. 12 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). 13 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 14 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 | : é ‘ | 2 : ‘ 15 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- 16 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1230%3A1. Public record. Not legal advice.