Petition — Sweeney Independent School District v. Harkless
Supreme Court brief1977
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Supreme Court of the United States
OCTOBER TERM, 1977
no. 227 = 392
SWEENY INDEPENDENT SCHOOL DISTRICT, et al,
Petitioners
Vv.
MILDRED HARKLESS, et al, Respondents
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Fifth Circuit
GRANT COooK
CHRIS BUTLER
16th Floor, 1100 Milam Building
Houston, Texas 77002
Attorneys for Petitioners
August, 1977.
Alpha Law Brief Co, One Main Plasa, No.1 Main St., Houston, Texas 77002
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LIST OF AUTHORITIES
CASES
Brennan v. University of Kansas, 451 F.2d 1287, 1289
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Campbell v. Gadsden County District School Board, 534
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City of Kenosha v. Bruno, 412 U.S. 507 (1973) ........
City of Petersburg, Virginia v. United States, 410 U.S.
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Edelman v. Jordan, 415 US. 651 ...ccccccccccscccces
Evans v. Seaman, 496 F.2d 1318 (Sth Cir. 1974) ........
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714
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Quarles v. State of Texas, 312 F.Supp. 835 (S.D. Tex.
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Seals v. Quarterly County Court of Madison County, Ten-
nessee, 496 F.2d 76 (6th Cir. 1974) ............045. 8
Thompson v. Madison County Board of Education, 496
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U. S. v. National Assn. of Real Estate Boards, 339 US.
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velopment Corporation, US. , 9 $.Ce. 855
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White v. Regester, 412 U.S. 755 (1973) ...........25.. 8
UNITED STATES STATUTES
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Supreme Court of the United States
OCTOBER TERM, 1977
NO.
SWEENY INDEPENDENT SCHOOL DISTRICT, et al,
Petitioners
Vv.
MILDRED HARKLESS, et al, Respondents
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Fifth Circuit |
Petitioners pray that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for
the Fifth Circuit entered in this case on July 1, 1977.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Fifth Circuit (App. A, infra, pp. A-1-A-16) and
that Court’s judgment (App. B, infra, pp. A-17-A-18)
are not yet reported. The order overruling Petitioners’
motion for rehearing entered on July 26, 1977 (App. C,
infra, p. A-19) and the order entered on August 5,
2
1977 granting a stay of the mandate are also unreported.
The memorandum opinion and order, entered on January
10, 1975, of the United States Court for the Southern
District of Texas, Galveston Division, from which this
appeal was taken by Respondents (App. D, infra, pp.
A-20-A-84), is reported at 388 F.Supp. 738.
There have been several prior opinions rendered in
this case which are unrelated to this petition for a writ
of certiorari. A memorandum and order of the district court
entered on January 19, 1968, is reported at 278 F. Supp.
632. An opinion of the district court entered on June 6,
1969 reported at 300 F.Supp. 794 was reversed and
remanded by the court of appeals on June 2, 1970;
opinion reported at 427 F.2d 319. The Supreme Court
of the United States denied the Petitioners’ petition for
a writ of certiorari on January 11, 1971, by a memo-
randum decision reported at 400 U.S. 991.
JURISDICTION
The judgment of the United States Court of Appeals
for the Fifth Circuit was rendered on the Ist day of July,
1977, and the order overruling Petitioners’ motion for
rehearing was entered on the 26th day of July, 1977.
The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTIONS PRESENTED
(1) Did the court of appeals err in failing to remand
the case to the district court in light of Village of Arling-
ton Heights v. Metropolitan Housing Development Cor-
poration?
3
(2) Did the court of appeals err by deciding that the
district court had no discretion to deny a motion to amend
to add a new cause of action?
STATUTES INVOLVED
The principal statute involved in this case is 28 U.S.C.
§1653.
“$1653. Amendment of pleadings to show jurisdiction
Defective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate
courts.”
STATEMENT
1. Prior proceedings.
Petitioners are the Sweeny Independent School District
of Sweeny, Texas, a body politic and municipal sub-
division, its board of trustees and superintendent of
schools, sued in their official capacities only. Respondents
are ten (10) former teachers previously employed by the
school district who were not offered reemployment for the
1966-67 school term.
A detailed factual background of the events leading up
to the filing of this suit is set forth in the district court’s mem-
orandum opinion and order (infra, App. D, pp. A-20-A-84)
and will not be restated here. Suffice it to say that when
the school district voluntarily determined to totally inte-
grate its entire system, it thereby reduced the total faculty
required for the operation of its schools. As a result of
that reduction, a number of teachers were not offered
4
reemployment for the 1966-67 school year. Respondents
are ten (10) of the seventeen (17) teachers who were
not then reemployed and brought this suit claiming that
they were not reemployed because of their race and sought
immediate reinstatement and damages by way of back
salary which they would have earned had they been re-
hired from year to year after the Spring of 1966.
The district court granted jury trial at the request of
Petitioners who, at that time, were being sued in their
individual as well as their representative capacities. During
the voir dire examination of the jury panel, counsel for
Respondents voluntarily moved the court to dismiss this
action insofar as it sought recovery from the individuals
in their individual capacities and to continue the suit
against the school district and its superintendent and
trustees in their representative or official capacities only.
Thereafter, and at the conclusion of the trial and verdict
finding that the Petitioners’ decision not to rehire Re-
spondents was not motivated by racial factors in any way,
the district court determined, under the doctrine of
Monroe v. Pape, 365 U.S. 167 (1961), that Petitioners
could not state a cause of action against the Petitioner
school district or its trustees and superintendent, sued in
their representative capacities only, inasmuch as such
Petitioners were not “persons” within the meaning of
42 U.S.C. 1983. No judgment was entered in this case
on the merits on the basis of the verdict of the jury in-
asmuch as the district court’s judgment was an order
of dismissal.
The court of appeals, by a divided panel, reversed the
judgment of the district court, holding that the trial court
had erred in its construction of Section 1983. The court
5
of appeals also held that the grant of a jury trial was
improper. A petition for a writ of certiorari by the Peti-
tioners was denied by this court.
2. Proceedings before the District Court on remand.
Upon remand both parties stipulated that the case could
be decided on the record created by the jury trial sup-
plemented by any evidence offered at subsequent hearings.
After the conclusion of the additional hearings and while
the district court had the case under consideration this
Court handed down its decision in City of Kenosha v.
Bruno, 412 U.S. 507 (1973).
The Respondents filed a motion for leave to amend their
complaint. They sought to assert jurisdiction under 28
U.S.C. §§1331 and 1343(4) and to include additional
causes of action under 42 U.S.C. §§1981, 1985 and 1988.
They also sought to rejoin the individual defendants in
their individual capacities. The district court denied the
motion holding that the individual defendants had been
dismissed with prejudice during the first trial, that the
defendants enjoyed a qualified immunity, and that the
statute of limitations had expired. The district court then
proceeded to make findings of fact and conclusions of
law that the dismissals were based upon nondiscriminatory
standards applied in a nondiscriminatory manner.
In light of City of Kenosha the district court again
dismissed the case against the school district for failure
to state a claim under 42 U.S.C. §1983 and for lack
of jurisdiction under 28 U.S.C. 1343(3). The suit against
the individual defendants sued in their official capacities
was also dismissed.
6
3. The decision of the Court of Appeals.
Respondents appealed claiming that the findings of fact
made by the district court were clearly erroneous. Re-
spondents also urged that the district court erred in hold-
ing that only prospective injunctive relief in the form of
reinstatement was available against the individual de-
fendants in their official capacities. As a subsidiary issue
to this second point Respondents argued that their motion
for leave to amend should have been granted.
The court of appeals reversed the district court on all
issues except the denial of that portion of the motion to
amenc relating to the rejoining of the individual defend-
ants in their individual capacities.
Petitioners’ motion for rehearing was routinely over-
ruled, but the court granted a stay of its mandate for a
period of thirty (30) days pending the filing of this
petition.
REASONS FOR GRANTING THE WRIT
1. Village of Arlington Heights v. Metropolitan
Housing Development Corp.
The district court entered its memorandum opinion and
order on January 10, 1975. On January 11, 1977, two
months after the oral arguments before the court of ap-
peals in this case this Court handed down its decision in
Village of Arlington Heights v. Metropolitan Housing
Development Corp., USS. , 95 S.Ct. 555 (1977).
The court of appeals applied the standards enunciated in
Arlington Heights to set aside the findings of the trial
court and hold that the non-renewal of Respondents’
contracts was the result of intentional racial discrimination.
7
The court of appeals remanded to the trial court with
directions to enter judgment for the Respondents.
Petitioner had no opportunity to brief or argue the
impact of Arlington Heights to either the court of appeals
or the district court. Nor did the district court have an
opportunity to evaluate this case in light of these new
guidelines. In such situations the court of appeals should
remand the case to the district court for further considera-
tion consistent with the intervening case law.
In Thompson v. Madison County Board of Education,
496 F.2d 682 (5th Cir. 1974), two black teachers sought
injunctive and other relief alleging that the school board
had engaged in racial discrimination by failing to rehire
them. The district court held that the teachers were not
entitled to reinstatement or to back pay. The court of
appeals reversed on the question of reinstatement but
remanded to the district court the question of the appli-
cability of back pay. The remand was based upon the
intervening case law of Edelman v. Jordan, 415 U.S. 651.
The court of appeals declined to rule if the Eleventh
Amendment bar to recovery of monetary benefits from a
state applied to the school district since the parties had
had no opportunity to brief or argue the question. -
In Evans v. Seaman, 496 F.2d 1318 (Sth Cir. 1974),
the court of appeals declined to consider an appeal on
the reasonableness of attorneys’ fees awarded to a success-
ful plaintiff in a cause of action based upon Title II of
the 1964 Civil Rights Act, 42 U.S.C. §2000a. The court
of appeals vacated and remanded rather than consider the
appeal in light of the fact that since the date of the
district court opinion the court had formulated new guide-
lines for the award of attorney fees in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714 (Sth Cir. 1974).
The district court in Seals v. Quarterly County Court
of Madison County, Tennessee, 496 F.2d 76 (6th Cir.
1974), dismissed a complaint filed by a group of black
citizens attacking an at-large voting plan for the county's
governing body. Rather than pass on the issues raised
on appeal the court of appeals remanded the case for
further consideration of this Court’s decisions in City of
Petersburg, Virginia v. United States, 410 US. 962
(1973), and White v. Regester, 412 U.S. 755 (1973),
which were undecided at the time of the district court
opinion.
By applying the new guidelines of Arlington Heights
to the instant case, the court of appeals undermined the
integrity of Rule 52 of the Federal Rules of Civil Pro-
cedure. The court of appeals dismissed the extensive
findings made by the trial court as “clearly erroneous”
by applying a legal standard which was nonexistent at
the time the findings were made. The court of appeals
simply put a different construction on the evidence in
this case, a practice clearly condemned by this court in
U.S. v. National Assn. of Real Estate Boards, 339 USS.
485 (1950).
“It is not enough that we might give the facts
another construction, resolve the ambiguities differ-
ently, and find a more sinister cast to actions which
the district court apparently deemed innocent... .
We are not given those choices, because our mandate
is not to set aside findings of fact ‘unless clearly
erroneous.” 339 U.S. at 495.
This Court should set aside the decision of the court
of appeals and remand this case to the trial court in light
of Arlington Heights.
9
2. The Motion to Amend.
When the district court ruled in light of City of Kenosha
v. Bruno, supra that the school district was not a “person”
under 42 U.S.C. §1983 and, therefore, the complaint
should be dismissed for failure to state a claim under
42 U.S.C. §1983 and for lack of jurisdiction under 28
U.S.C. §1343(3) the Respondents filed a motion for
leave to amend their complaint in the following manner:
1. to expand their jurisdictional allegations to
include 28 U.S.C. §§1331 and 1343(4), as well
as 28 U.S.C. §1343(3);
2. to expand their allegations pertaining to causes
of action to include 42 U.S.C. §§1981, 1985 and
1988, as well as 42 U.S.C. §1983; and
3. to add as defendants the superintendent and
five members of the Board of Trustees of the District,
with their “successors and assigns”, in their individual
capacities.
The trial court denied the motion noting that the school
district officials in their individual capacities had been
named as parties in the original complaint but had been
voluntarily dismissed with prejudice by the Respondent.
The trial court also rejected the attempt to add new
causes of action under 42 U.S.C. §§1981, 1985 and 1988
on the basis that each such section was a separate cause
of action on which the statute of limitations had run.
The district court rejected the argument that 28 U.S.C.
§1653 demanded that the amendment be allowed.
“If the result of plaintiffs’ amendment to their com-
plaint would be merely to correct a ‘defective allega-
19
tion of jurisdiction’ it would present a different issue.
But here the effect of the proffered amendment would
be to weave a new claim into the fabric of this
lawsuit.” 388 F.Supp. at 750 (App. D, p. A-36).
The court of appeals declared that the district court
had no discretion to deny the amendment. The court of
appeals acknowledged that motions to amend are directed
to the sound discretion of the trial court, however, the
court applied 28 U.S.C. §1653 to decide that the trial
court had no choice but to allow the Respondents to
replead their cause of action under 42 U.S.C. §1981.
“The facts of this case, the sort of amendment re-
quested, Rule 15(a), and $1653 left the trial court
with no discretion to deny the requested amendment.”
(App. A, p. A-15).
Only jurisdictional defects are covered by 28 U.S.C.
§1653, not separate causes of action.
“The intention of Congress in enacting 28 U.S.C.
§1653 was to broadly permit amendment to avoid
dismissal on technical grounds. The power of the
appellate court to correct defective jurisdictional al-
legations concerns defects of form, not substance.”
Brennan v. University of Kansas, 451 F.2d 1287;
1289 (10th Cir. 1971).
A cause of action separate and distinct from §1983
is stated by 42 U.S.C. $1981; it is not a jurisdictional
statute. As stated in Quarles v. State of Texas, 312 F.
Supp. 835 (S.D. Tex. 1970).
“Likewise, 42 U.S.C. §§1981 and 1983 do not grant
jurisdiction. They merely afford a remedy in cases
to which jurisdiction is granted by 28 U.S.C. §1343.”
312 F.Supp. at 837.
11
A different panel of the court of appeals recognized
a distinction between a cause of action pled under §1981
and §1983 in its recent opinion of Campbell v. Gadsden
County District School Board, 534 F.2d 650 (Sth Cir.
1976):
“Thus, §1981 is available to a much narrower class
of potential litigants than §1983, and is designed
primarily to remedy a limited range of civil rights
infractions in which racial animus is implicated. In
view of the fact that §1981 has more restrictive
applicability than §1983 the differences in statutory
language that limit liability under §1983 to ‘persons’
but fail to similarly confine §1981 liability, see notes
4 and 6, supra, do not seem unreasonable. Section
1981 allows a limited class of persons broader access
to relief for particularly serious (i.e., racially dis-
criminatory ) civil rights violations.” 534 F.2d at 654.
The court of appeals therefore misapplied 28 U.S.C.
§1653 in deciding that the trial court had no discretion in
denying the motion to amend. The action of the court
of appeals should be set aside and the order of the trial
court denying the motion to amend should be affirmed.
CONCLUSION
For the foregoing reasons, the Petition for a Writ of
Certiorari should be granted.
Respectfully submitted,
GRANT COOK
Curis BUTLER
16th Floor, 1100 Milam Building
Houston, Texas 77002
Attorneys for Petitioners
August, 1977.
12
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the
foregoing Petition for a Writ of Certiorari has been served
upon opposing counsel by mailing copies of same to them
at the addresses shown below by United States mail,
postage prepaid, this the 30th day of August, 1977.
Conrad K. Harper
N.A.A.C.P. Legal Defense Fund, Inc.
10 Columbus Cir.
New York, New York 10019
Weldon H. Berry
711 Main Street
Houston, Texas 77002
GRANT COOK
Attorney for Petitioner
APPENDIX
A-1
APPENDIX A
Mildred HARKLESS et al.,
Plaintiffs-A ppellants,
Vv.
The SWEENY INDEPENDENT SCHOOL DISTRICT
OF SWEENY, TEXAS, and Fred Miller, Superintendent,
et al., Defendants-Appellees.
NO. 75-1533.
UNITED STATES COURT OF APPEALS,
Fifth Circuit.
July 1, 1977.
Appeal from the United States District Court for the
Southern District of Texas.
Before AINSWORTH and CLARK, Circuit Judges,
and HUGHES, District Judge.*
HUGHES, District Judge:
Plaintiffs in this action are ten’ black school teachers
whose 1965-66 teaching contracts with the Sweeny In-
dependent School District (S.I.S.D.) were not renewed for
the 1966-67 school year. On May 23, 1966, they and
two others who later withdrew from the suit filed an
* Senior District Judge of the Northern District of Texas sitting
by designation.
1. At oral argument, plaintiffs’ counsel informed the Court that
Velma Shelby, one of the ten, is deceased.
A-2
action against the S.I.S.D., its superintendent, and seven
members of the school board. The superintendent and
school board members were sued in both their official and
individual capacities, but later, during the original trial,
plaintiffs dropped their claim against these people in
their individual capacities. Asserting 42 U.S.C. § 1983
and 28 U.S.C. § 1343(3)* as the jurisdictional basis,
plaintiffs claimed they had been discharged because of
their race and sought reinstatement and back pay. A
jury returned a verdict for defendants on, among other
things, the issue of whether the defendants had not re-
newed the teaching contracts because of plaintiffs’ race.
After this verdict, the trial court dismissed plaintiffs’
complaint, concluding that the school district and the de-
fendants in their official capacities were not “persons”
within the meaning of § 1983. On appeal, this Circuit
reversed the district court, holding that it had erred in
granting defendants a jury trial and in finding the defend-
ants not to be § 1983 persons. Harkless v. Sweeny Inde-
pendent School District, 427 F.2d 319 (Sth Cir. 1970),
cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d
439 (1971).
A-3
About two years later, after testimony had been pre-
sented to supplement the transcript of the earlier trial,
the district court took the case under consideration. A
year later, while the case was still under consideration,
the Supreme Court decided City of Kenosha v. Bruno,
412 US. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973),
which held that a municipality is not a person under
§ 1983 for purposes of equitable relief. The tandem of
Kenosha and Monroe v. Pape, 365 U.S. 167, 81 S.Ct.
473, 5 L.Ed.2d 492 (1961), which had held that a
municipality was not a § 1983 person where damages are
sought, meant that a municipality could not be sued
under § 1983. In its wake, Kenosha left questions about
jurisdictional matters in this case.
After the Kenosha decision, there was a five month
hiatus which ended with the district court requesting
briefs on the applicability and reach of Kenosha. In re-
sponse, in addition to the parties’ briefs on Kenosha’s im-
pact, plaintiffs filed a Motion for Leave to Amend Sec-
ond Amended Complaint primarily aimed at avoiding
the possible jurisdictional problems presented by Kenosha.
Another year elapsed and, on January 10, 1975, the
district court issued its Memorandum Opinion and Order,
which included a denial of the motion to amend, and
entered Final Judgment denying all relief sought by
plaintiffs. This appeal followed.
Before this court, plaintiffs argue that the district court
erred in two basic respects. First, they assert error in
the district court’s finding that they were not discharged
because of their race. Second, they assert error in the
district court’s holding that it could only grant prospective
injunctive relief in the form of reinstatement against the
A-4
individual defendants in their official capacities, assuming
plaintiffs’ success on the merits. As subsidiary issues to
the second asserted error, plaintiffs argue that their
Motion for Leave to Amend Second Amended Complaint
should have been granted and that the district court could
have granted full relief in the form of reinstatement and
back pay plus allowances for a successfully urged cause
of action. We reverse on all issues except the district
court’s denial of that portion of the motion to amend
relating to the rejoining of the individual defendants in
their individual capacities.
Until the 1965-66 school year, S.I.S.D. was a dual
school system with both the students and faculties segre-
gated along racial lines. All black students of whatever
grade and all black faculty were assigned to the George
Washington Carver School (Carver) which had no white
students or teachers. For the 1965-66 school year, the
school district instituted a freedom of choice system for
the students while continuing to assign all its black
teachers to Carver. Then, in 1966-67, the district desegre-
gated its faculty as well as its student body.
The important events in this case occurred in the
1965-66 school year. In that year, Carver had twenty four
teachers, all black, and a principal who also was black.
At the request of the district superintendent and in
preparation for the coming faculty desegregation, a staff
requirements study was prepared. It indicated that twelve
fewer teaching positions were needed for the next school
year.
In February, 1966, the superintendent requested the
district’s curriculum director to prepare an evaluation of
Carver’s teachers. No such evaluation was requested for
St an ee “
PO ee ei Os ee RR et. od de
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re rn
A-5
the district’s white teachers. The completed evaluation
was submitted in anecdotal form and was laden with
remarks that were what the trial court termed “not models
of diplomatic composition”. A stronger appellation might
be given, despite the trial court’s finding them not to be
insulting, but a sampling of the remarks is the best way
to give their true flavor. Cleo Grimes was described as
having “. . . honest and realistic aspirations for her race.”
Margaret Gee was said to have “seen much more of the
world than most; displays relatively racial and provincial
facets.” John P. Jones was termed “[a] real up-town,
gold-toothed, yellow shod dude.” Hilbert Simien was said
to be “[rJeasonably cultured by our standards . . .” There
were numerous other references to race in a similar vein.
Sometime during February or March of 1966, the
Carver faculty again was singled out for a separate
evaluative process. At the superintendent’s behest, the
curriculum director and the Carver principal numerically
ranked the Carver teachers against one another accord-
ing to supposed competence. The superintendent also
performed this ranking and then compiled the three
ratings on a “Teacher Evaluation Worksheet”. The
twenty three permanent teachers are listed and next to
their names are three columns of numbers which are
the individual rankings by the superintendent, the curricu-
lum director, and Carver’s principal. The sums of these
three rankings for each teacher are in another column.
Next to this column but adjacent only to the eight
teachers with the lowest cumulative rankings are the
numbers 1 through 7. (Two teachers tied in their cumu-
lative rankings, and, thus, both have a 7 by their names. )
A slight detour is necessary to highlight the significance
of the numbers 1 through 7 appearing on the worksheet.
A-6
Only seven black teachers received teaching contracts
for the 1966-67 school year. Five were those teachers
with the numbers 1 through 5 next to their names. The
other two were the Carver principal, who was demoted to
teacher, and his wife. The school district refused to renew
the contracts for seventeen (about 70%) of the twenty
four Carver teachers. Every white teacher who wanted to
continue teaching had his or her contract renewed. Ad-
ditionally, seventeen new teachers were hired for the
1966-67 school year. All were white.
Returning to the main road, on March 1, 1966, the
superintendent sent a memorandum to the principals of
S.1.S.D. schools requesting them to submit by March 7,
1966, two evaluations of the teachers in their respective
schools. One evaluation was by means of a Steck Form.*
A Steck Form is a document on which an evaluator
rates a teacher according to thirty eight characteristics
which cover the areas of personal qualities, teaching
abilities, routine and physical conditions, discipline, co-
operation, professional growth, and social efficiency.
Ratings for each characteristic are to be on a five point
scale ranging from “excellent” .o “unsatisfactory”. The
other evaluation was to be made by means of a notation
on the Steck Form. The notation (or overall rating) was
to be a number from 2 through 10. The higher the num-
ber, the better the teacher. No correlation between the
Steck Form evaluation and the overall rating was required
or discussed. Though the superintendent and curriculum
director did not prepare Steck Forms, they did make over-
all ratings of the district’s teachers. Under this two step
4. Due to illness, the principal of the all white elementary school
prepared no Steck Forms. The evaluations from the previous year
were used instead.
A-7.
process, each of the plaintiffs ranked lowest among his
or her grade/subject matter group.°
The process’s culmination was reached on March 8
when, one day after the due date for the Steck Forms
and overall ratings, the S.I.S.D. School Board accepted
the superintendent’s recommendations—to rehire 100%
of the white teachers and only 30% of the black teachers.
The employment decisions purportedly were based on
the results of the Steck Form evaluations and overall
ratings, themselves contested, in which teacher compari-
sons were made on a district wide basis. The distri
court found the foregoing as fact. With the benefit
guidance from a recent Supreme Court decision, we
reject such a finding as clearly erroneous, to the extent
that it is a true finding of fact at all.*
[1] The Supreme Court decision is Village of Arling-
ton Heights v. Metropolitan Housing Development Corp..
U.S , 97 S.Ct. 555, 50 L.Ed.2d 450 (1977),
and the guidance it provides is in our inquiry into
whether there was intentional racial discrimination in this
case. We find that there was. In Arlington Heights the
Supreme Court held that “[p]roof of racially discrimina-
tory intent or purpose is required to show a violation
of the Equal Protection Clause.” ___. U.S. at ____, 97
S.Ct. at 563, 50 L.Ed.2d at 464. See also Washington v.
Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597
(1976). It is true that Arlington Heights differed from
5. One of plaintiffs, Florence Jones, was not evaluated because
she was a substitute teacher without a contract.
6. Since the finding is clearly erroneous, we need not discuss its
characterization as either a “true” fact or an “ultimate” fact, the
latter being a question of law.
A-8
this case in certain respects. In Arlington Heights a statute
neutral on its face was under attack. Here, an administra-
tive action purportedly racially neutral is involved.
Arlington Heights dealt with the fourteenth amendment’s
equal protection clause. This case deals with statutes
enacted under the enforcement provisions of the thirteenth
amendment as well as the fourteenth amendment. None-
theless, Arlington Heights provides useful guidelines for
determining the mental state accompanying a decision
alleged to be intentionally discriminatory such as the
decision not to retain these plaintiffs. A list, acknowledged
to be incomplete, of six standards for guiding “a sensitive
inquiry into such circumstantial and direct evidence as
may be available” is provided in the Arlington Heights
opinion. The standards are: (1) the impact of official
action, though this is usually not determinative; (2) the
historical background of the decision; (3) the specific
sequence of events leading up to the challenged decision;
(4) departures from the normal procedural sequence;
(5) substantive departures; and (6) the legislative or
administrative history. ___. U.S. at , 97 S.Ct.
at 563-565, 50 L.Ed.2d at 465-66.
Measuring the facts of this case against these standards,
we see that the dismissal of plaintiffs was an intentional
act of racial discrimination. The impact of the action is
particularly devastating. To recapitulate, of the black
teachers, 70% did not have their contracts renewed.
Every white teacher so desiring was rehired. Additionally,
100% of the seventeen newly hired teachers were white.
No small mental effort is required to move beyond this
to a consideration of the other guides to a determination
of intent, but these other guides must be considered.
—
A-9
The historical background further batters the “buckler
and shield”, Horton v. United States Steel Corp., 286
F.2d 710 (Sth Cir. 1966), with which the trial court’s
fact findings come armed. The S.I.S.D. historically was
a dual school system and, though its desegregation efforts
were not undertaken pursuant to a court order, no segre-
gated school district after Brown v. Board of Education
escaped some external pressures toward desegregation.
Overnight changes in racial attitudes, as we have sadly
noted in the last twenty years, are rare. There is little
indication that the S.I.S.D. as an institutional whole at-
tained that rarity.
The last four factors set out in Arlington Heights are
difficult to disentangle and can be considered together
here under the general rubric of “sequence of events”.
The anecdotal evaluation with its disparaging racial com-
ments and its sole focus upon black teachers was per-
formed by one of the key actors in the employment de-
cision, the curriculum director, for another key actor,
the superintendent. The superintendent’s proffered expla-
nation was that the anecdotal evaluation was to familiarize
him with Carver teachers about whom he admittedly
knew little, so that he could defend his ultimate decision
on black teachers’ employment against anticipated com-
munity attacks. Furthermore, the superintendent said that
the anecdotal evaluation was not used in arriving at his
March 8 employment recommendations. This diminution
of the anecdotal evaluation’s importance was accepted by
the trial court.
The superintendent’s position is undercut by two con-
siderations. First, the superintendent seemingly enter-
tained contradictory views on his familiarity with the
A-10
Carver teachers. Part of his justification for the anecdotal
evaluation was his lack of familiarity with the school
system’s black teachers. Yet, this same superintendent
participated in the overall rating of the Carver teachers
and presumed to know so much more about their
competency that he consistently rated them much lower
than the Carver principal did. Second, the superintendent
must have assumed that retention of black teachers
would require greater justification than the retention of
white teachers. Otherwise, why separately evaluate only
the black teachers? In light of Arlington Heights we find
the anecdotal evaluation and the manner in which it was
done strongly probative, though circumstantial, evidence
of the intent behind the employment decisions.
Consideration of other events in the sequence leading
to the employment decision brings into full relief the
discriminatory intent present in this case. The black
teachers were the only teachers ranked against one an-
other. Nothing similar was done in any of the schools
with all white faculties. Atop this damaging fact sits an-
other one even more damaging to defendants. After this
intra-Carver comparison, the teachers were not ranked
from 1 through 23. Instead, only eight were ranked by
number. Subsequently, six of these eight, along with the
demoted Carver principal, were rehired. The most logical
conclusion is that the decision had been made to retain
seven and only seven black teachers. Reinforcing this
conclusion is the fact that seventeen black teachers were
not retained despite the staff requirements study’s con-
clusion that only twelve fewer teachers were needed the
following year after faculty desegregation. Of course, the
reality is that only four, not twelve, fewer positions
existed the next year. Thus, seventeen teachers who had
ot ee tt BP De oe oe
se SSM AB ctw a Ie.
Bi. makita “be Sestth
,
A-11
been deemed competent enough for reemployment for
several years in the past were discharged when, in fact,
only 25% of them would have lost employment due to
staff cutbacks after faculty desegregation, assuming they
were indeed the least qualified of all the teachers. In this
area, one last fact leaves the trial court’s findings of fact
on the true decisionmaking process defenseless, without
the “buckler and shield”. All seventeen of the newly hired
teachers were white, in effect, they replaced the discharged
black teachers.
[2] We hold that the district court, which reached its
decision before Arlington Heights was handed down, was
clearly in error in finding that no intentional racial dis-
crimination occurred in the non-renewal of plaintiffs’
teaching contracts and in finding that the Steck Form/
overall rating process was the method actually used to
evaluate the teachers to arrive at the employment decision
on March 8. There was intentional racial discrimination
in the non-renewal of the contracts. Given this result and
its basis, we need not consider in any greater detail the
validity of an evaluation process which uses the Steck
Form/overall rating method. Here, such a process was
only a pretext for denying plaintiffs their jobs on the
basis of race.
We now turn to a consideration of the issue of what
relief can be granted for the unconstitutional refusal to
renew plaintiffs’ teaching contracts on the basis of their
race. Related issues involve questions of jurisdiction and
the propriety of plaintiffs amending their pleadings to
allege new jurisdictional grounds, new statutory causes of
action, and to rejoin the individual defendants as defend-
ants in their non-official capacities.
A-12
In their original Complaint, filed on May 23, 1966,
plaintiffs prayed for reinstatement and back pay and al-
lowances. (Since allowances are part of any recoverable
back pay, the term “back pay” will be used to describe
the whole package of retroactive monetary relief.)
Throughout the next eleven years, they have sought the
same relief from the same defendants, with one exception.
That exception is that during the original trial before a
jury plaintiffs dropped their claims against the individual
defendants in their individual capacities. In that original
complaint and in two subsequent amended complaints,
plaintiffs asserted a cause of action under § 1983 and
jurisdiction under § 1343(3). No other statutes were
asserted as applicable to these proceedings. Understand-
ably, the impact of Kenosha and its Fifth Circuit progeny’
was unforeseen.
After Kenosha plaintiffs filed a Motion for Leave to
Amend Second Amended Complaint. They sought to as-
sert jurisdiction under 28 U.S.C. §§ 1331 and 1343(4)
and to include additional causes of action under 42 U.S.C.
§§ 1981, 1985, and 1988. Also, they sought to rejoin
the individual defendants as defendants in their individual
capacities. The motion was denied in its entirety.
7. See, e. g., Sterzing v. Fort Bend Independent School District,
496 F.2d 92 (Sth Cir. 1974); Adkins v. Duval County School Board,
511 F.2d 690 (Sth Cir. 1975); Vick v. Texas Employment Commis-
sion, 514 F.2d 734 (Sth Cir. 1975); and Muzquiz v. City of San
Antonio, 520 F.2d 993 (Sth Cir. 1975), aff'd. on rehearing en banc,
528 F.2d 499 (1976), U.S. appeal pending. The Supreme Court has
a case, Monell v. Department of Social Services, 532 F.2d
259 (2d Cir. 1976), cert. granted, US. , 97 S.Ct. 807, 50
L.Ed.2d 789 (1977), which should provide further guidance on what
a § 1983 “person”’ is.
~-. oe
:
:
:
:
4
;
:
4
A-13
At oral argument, plaintiffs’ counsel agreed that, if the
amendment relating to § 1981° and its jurisdictional coun-
terpart § 1343(4)° was allowed, consideration of the
amendment relating to § 1331 was unnecessary from his
point of view. The portions of the motion to amend
relating §§ 1985 and 1988 were not urged at oral argu-
ment. Given our disposition of the issue, we preterit
discussion of matters pertaining to §§ 1331, 1985, and
1988.
[3] Amending the pleadings to add allegations of a
cause of action under § 1981 and jurisdiction under
§ 1343(4) is important only insofar as available relief is
concerned. No new facts would be alleged. The only im-
pact of such an amendment would be in the area of back
pay since, for purposes of reinstatement, these individual
defendants in their official capacities are § 1983 persons.
Plaintiffs’ case having been proven on the merits, rein-
statement under a § 1983 cause of action against the
individual defendants in their official capacities is avail-
able. This issue was settled in Campbell v. Gadsden
County District School Board, 534 F.2d 650 (Sth Cir.
1976). Gadsden likewise said that § 1981 was available
as a cause of action to remedy employment discrimina-
8. “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 evidence, 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.”
9. “The district courts shall have original jurisdiction of any civil
action authorized by law to be commenced by any person . [t]o
recover damages or to secure equitable or other relief under a any Act
of Congress providing for the protection of civil rights, including the
right to vote.”
A-14
tion and that back pay was an appropriate part of the
remedy for a proven case of discrimination, such as this
one. Definition problems with “person” are absent from
a § 1981 action.
The difference between Gadsden and this case is that
the plaintiffs in Gadsden had asserted both § 1983 and
§ 1981 causes of action in pleadings before the district
court. In this case plaintiffs unsuccessfully sought to add
a § 1981 cause of action to their pleadings before the
district court. Therefore, our task on this appeal is to
determine whether amended pleadings are required. Since
motions to amend pleadings are addressed to the sound
discretion of the trial court, see, e.g., Zenith Radio Corp.
v. Hazeltine Research, Inc., 401, U.S. 321, 330, 91 S.Ct.
795, 28 L.Ed.2d 77 (1971) and Foman v. Davis, 371
U.S. 178 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the
task resolves itself into the question of whether the trial
court abused its discretion in denying this portion of
the motion to amend.
Leave to amend pleadings “shall be freely given when
justice so requires.” F.R.C.P. 15(a). Furthermore, the
motion to amend by adding § 1981 as a cause of action
and § 1343(4) as a jurisdictional basis, without adding
new factual allegations, is fundamentally a motion to
amend to correct a defective allegation of jurisdiction.
That is because, in this situation, the statutory cause of
action and its jurisdictional counterpart are merely two
sides of the same coin. Given this, 28 U.S.C. § 1653 is
applicable. This statute reads: “Defective allegations of
jurisdiction may be amended, upon terms, in the trial or
appellate courts.” It is to be liberally construed. Mc-
Govern v. American Airlines, Inc., 511 F.2d 653 (Sth
Cir. 1975).
—
|
evetan att barediwet o>
A-15
For eleven years plaintiffs, alleging the same facts, have
sought the same relief from the same defendants. The
requested amendments add nothing substantively new to
their claim, though, their claim proven, a new form of
relief—one thought to be available under § 1983 at the
filing of the original complaint—becomes appropriate.
We hold that the trial court’s discretion was abused
when it refused to grant the portion of the motion to
amend relating to §§ 1981 and 1343(4). The facts of
this case, the sort of amendment requested, Rule 15(a),
and § 1653 left the trial court with no discretion to deny
the requested amendment.
[4] We add that adding § 1981 as a statutory cause of
action presents no problem concerning whether the
statute of limitations might have run on the § 1981
action. Johnson v. Railway Express Agency, Inc., 421
U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), con-
trary to defendants’ position, is not applicable to this case.
Federal Rule of Civil Procedure 15(c) is. "i pertinent
part it reads: “Whenever the claim . , amerted in the
amended pleading arose out of the conduct, transaction,
or occurrence set forth . . . in the original pleading, the
amendment relates back to the date of the original plead-
ing.” “The purpose of [Rule 15(c)] is accomplished if
the initial complaint gives the defendant fair notice that
litigation is arising out of a specific factual situation.”
Longbottom v. Swaby, 397 F.2d 45, 48 (Sth Cir. 1968).
Such is precisely the situation here. The complaint was
filed just over three months after the complained of
action. No statutory limitation period had run.
[5] The district judge also denied the portion of the
Motion for Leave to Amend Second Amended Complaint
A-16
seeking to rejoin as defendants in their non-official capaci-
ties the individual defendants. In the original trial before
a jury, plaintiffs’ counsel had approached the Bench and
said: “We would like to withdraw our prayer for relief
against the school board members individually.” Tate
having been withdrawn, then they are only sued in their
official capacities. . .” Trial Transcript 1315. These state-
ments along with other references during the trial left in
some confusion the issue of whether the dismissal was with
or without prejudice. The trial court resolved this murky
. Davis, , 371 US. at 182, 83 S.Ct. 227. The trial
"art did not abuse its discretion in denying this portion
of the motion to amend.
This cause is now remanded to the trial court with di-
rections to grant the Motion for Leave to Amend Second
Amended Complaint in a manner consistent with this
opinion, to enter judgment for plaintiffs in a manner
consistent with this opinion, and for further proceedings
aot i ‘stent with this opinion, includi ceed
concerning the amount of back pay owed to plaintiffs and
reasonable attorneys’ fees.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.
A-17
APPENDIX B
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 75-1533
D. C. Docket No. CA-66-G-34
MILDRED HARKLESS, ALICE MAE JONES, ET AL..
Plaintiffs-A ppellants,
Vv.
THE SWEENY INDEPENDENT SCHOOL DISTRICT
OF SWEENY, TEXAS, and FRED MILLER,
Superintendent, ET AL., ETC.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Texas
Before AINSWORTH and CLARK, Circuit Judges, and
HUGHES, District Judge.*
JUDGMENT
This cause came on to be heard on the transcript of
the record from the United States District Court for the
Southern District of Texas, and was argued by counsel;
* Senior Dis.rict Judge of the Northern District of Texas, sitting
by designation.
A-18
ON CONSIDERATION WHEREOF, It is isow here
ordered and adjudged by this Court that the judgment
of the said District Court in this cause be, and the same
is hereby, affirmed in part and reversed in part; and
that this cause be, and the same is hereby remanded to
the said District Court for further proceedings not in-
consistent with the opinion of this Court;
It is further ordered that defendants-appellees pay to
plaintiffs-appellants, the costs on appeal to be taxed by
the Clerk of this Court.
July 1, 1977
Issued as Mandate:
A-19
APPENDIX C
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 75-1533
MILDRED HARKLESS, ALICE MAE JONES, ET AL..
Plaintiffs-Appellants,
v.
THE SWEENY INDEPENDENT SCHOOL DISTRICT
OF SWEENY, TEXAS, and FRED MILLER,
Superintendent, ET AL., ETC.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Texas
ON PETITION FOR REHEARING
(July 26, 1977)
Before AINSWORTH and CLARK, Circuit Judges, and
HUGHES, District Judge.*
PER CURIAM:
_ IT IS ODERED that the petition for rehearing filed
in the above entitled and numbered cause be and the
same is hereby DENIED
ENTERED FOR THE COURT:
/s/ SARAH T. HUGHES
United States District Judge
hoo Senior District Judge of the Northern District of Texas, sitting
A-20
APPENDIX D
Mildred HARKLESS et al., Plaintiffs,
V.
The SWEENY INDEPENDENT SCHOOL DISTRICT
OF SWEENY, TEXAS, et al., Defendants.
Civ. A. No. 66-G-34.
UNITED STATES DISTRICT COURT,
S. D. Texas,
Galveston Division.
Jan. 10, 1975.
As Amended Jan. 16, 1975.
MEMORANDUM OPINION AND ORDER
NOEL, District Judge.
PREFACE
In the spring of 1965, defendant Sweeny Independent
School District (hereinafter called the District) adopted
a plan of complete school desegregation and, pursuant
thereto, ordered the number of its faculty reduced for the
1966-67 school year. In effecting this reduction, the Dis-
trict did not offer reemployment to seventeen Negro
teachers.
On May 23, 1966, twelve of the seventeen filed this
suit alleging racial discrimination in the decision not to
A-21
rehire. Plaintiffs predicated their sole cause of action on
42 U.S.C. § 1983. Jurisdiction was asserted solely under
28 U.S.C. § 1343(3). The claim was brought as a class
action on behalf of the twelve named plaintiffs and all
others similarly situated, i. e., all Negro teachers not re-
hired by the District for the 1966-67 school year.
The original named defendants were the District, its
superintendent and seven members of its Board of Trustees.
Plaintiffs did not specify whether they were suing the
superintendent and the members of the Board of Trustees
in their official capacities only, or in their individual ca-
pacities as well." The complaint sought injunctive and
other relief, including back pay and other allowances lost
as a result of the allegedly improper refusal to rehire.
Much of the lengthy history of this case is traced in
detail in previous opinions of this Court. Harkless v.
Sweeny Independent School Dist., 278 F.Supp. 632 (S.D.
Tex. 1968) [hereinafter called Harkless I (Dist.)]; Hark-
less v. Sweeny Independent School Dist., 300 F.Supp. 794
(S.D. Tex. 1969) [hereinafter called Harkless II (Dist.)).
In the interest of brevity, only the following summary is
provided here.
Extended discovery and numerous pretrial conferences
were necessary throughout this case. Early in the proceed-
ings this Court held that the alleged class of plaintiffs was
not so numerous as to make it impractical to bring all
1. Although references to the “defendant Board” can be found
throughout the substantive allegations of plaintiffs’ original complaint
and each successive amended complaint, it is clear that the Board of
Trustees as a separate legal entity was never a party to this lawsuit.
The matter is, further, of no moment, for the Board as an entity
would have the same status as the defendant District. Cf. Johnson
v. Hackett, 284 F.Supp. 933 (E.D. Pa. 1968).
A-22
persons included therein before the Court individually.
Accordingly, the case was stripped of its character as a
class action on April 21, 1967.
In November, 1967, plaintiffs sought and were granted
leave to amend their complaint. Defendants responded
with an amended answer and requested a jury trial. On
January 19, 1968, the Court held in Harkless I (Dist.)
that the case was a proper one for a jury. Plaintiffs moved
to dismiss their amended complaint insofar as it raised
any jury issue and asked that the case be transferred to
the non-jury docket. These requests were denied by the
Court on June 6, 1968.
In March of 1969 the case proceeded to a trial by
jury. During the course of the voir dire examination,
plaintiffs moved for clear and obvious reasons of strategy
to dismiss all claims they might have had against the
individual defendants in their individual capacities. This
motion was granted and plaintiffs’ second amended com-
plaint resulted. With only the District and its officers as
such remaining as defendants,’ the Court requested the
parties to submit briefs on the relevance of Monroe v.
Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)
to the question of whether the remaining defendants were
“persons” within the meaning of 42 U.S.C. § 1983. This
question was carried with the case.
On March 13, 1969, the jury returned its verdict on
special interrogatories. The jury’s findings were uniformly
2. As this case progressed, there were periodic changes in the
number and identity of the parties before the Court. The disposition
of this case described herein renders it unnecessary to record in
detail the changes which occurred.
A-23
favorable to the defendants* with one excepti j
ception: the
found that ' a factor relied upon by the board [of encha
7 — pes reemployment to seven of the plaintiffs was
e fact that these particular plaintiffs were
this lawsuit.” : evening
Plaintiffs then sought and received leave to further
amend their complaint to incorporate a ground of recovery
consistent with the jury’s verdict. Numerous other motions
were not acted upon because the Court, relying on Monroe
v. Pape, supra, determined that the plaintiffs had failed
to state a claim upon which relief could be
Harkless II (Dist.). econ
The Court of Appeals for the Fifth Circuit reversed
this holding saying that claims for equitable relief were
not within the rule of Monroe. Harkless v. Sweeny In-
dependent School Dist., 427 F.2d 319 (5th Cir. 1970)
cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d
439 (1971) [hereinafter called Harkless Ill (Cir.)]. The
opinion of the majority limited Monroe to suits for
damages and found that the plaintiffs here sought the
equitable relief of reinstatement and back pay only. The
majority also expressly concluded that § 1983 contem-
plated equitable relief against individuals sued in their
Official or representative capacities. Finally, the Court
of Appeals held that the opinion of this Court expressed
in Harkless I (Dist.) was incorrect—that “a claim for
back pay presented in an equitable action for reinstate-
ment authorized by § 1983 is not for jury consideration.
.. +” Harkless Ill (Cir.), 427 F.2d at 324.
3. The full verdict of the j i ; .
300 F.Supp. at 799. 0 jury is quoted in Harkless II (Dist.),
A-24
On remand, counsel for both parties stipulated, at the
request of the Court, that the case could be decided on
the record created by the jury trial supplemented by
evidence adduced at hearings held before the Court in
January and April, 1972. Upon the receipt of compre-
hensive post-trial briefs, the Court took the case under
consideration.
In June, 1973, the Supreme Court handed down its
decision in City of Kenosha v. Bruno, 412 U.S. 507,
93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). In that case,
Justice Rehnquist, speaking for an eight-man majority,
concluded that municipal corporations were outside the
ambit of § 1983 for purposes of equitable relief as well
as for damages. Thereafter, this Court directed counsel
to submit memoranda on the application of that decision
to this case.
The parties have now been heard at length on this
question. The issues have been briefed and ample time
for submission of supplemental memoranda has been
allowed. As part of their reaction to City of Kenosha,
supra, plaintiffs have sought leave to amend their com-
plaint to include as defendants the superintendent and
certain members of the Board of Trustees of the defend-
ant District in their individual capacities.
Plaintiffs have also persuasively presented to this Court
a request for a decision which will avoid where possible
the need for a time-consuming remand of this case in
the event of a successful appeal by either party. For this
reason, the opinion which follows will present alternative
grounds in support of the final judgment of this Court.
The Court must, however, decline the opportunity to
render hypothetical judgments.
A-25
I. THE CONSEQUENCES OF CITY OF KENOSHA
A. THE DEFENDANT SWEENY INDEPENDENT
SCHOOL DISTRICT
[1, 2] In response to the Court’s requests for
randa of law on the applicability of Chey of Rian
supra, to this case, all defendants have moved for dis-
missal of this action for failure to state a claim upon
which relief may be granted.‘ They urge as a defense
the same legal position taken by them when this Court
ruled in their favor in Harkless II (Dist. ). But the Court
of Appeals, in Harkless Ill (Cir.), reversed this Court’s
ruling. The decision of the Court of Appeals—that the
District and the individual defendants sued in their repre-
sentative capacities were “persons” within the meanin
of § 1983—has now become the “law of the case” CE
1B Moore’s Federal Practice 4 0.0404[10]. ae.
[3, 4] There is, however, an exception to the “law of
the case” doctrine which is well recognized in this Cir-
cuit. The doctrine does not apply where “there is an
intervening change in the law by authoritative declaration
4. Defendants’ motion to dismiss for failure to claim
pena — a states grounds for a dismissal eas oe con af
ic 8 U.S.C. § 1343(3). This is due to the i
f . . : . . peculiar
re me i § 1343. That section introduces its subsections with
“The district courts shall have original jurisdiction , ci
action authorized by lew to be rhe sr by ne Be
If pags roe fb to. longer :
if a plainti ils to state a claim, there no ists a “ci
action Agra rot y = ol — § 1343. In this poe ogy an
automati } ‘
int sr = y converts a failure to state a claim
_ In City of Kenosha, the majority relied upon this jurisdictic
or anon of their decision to justify deciding the rh go aa
nei party had raised. See 412 US. at 511, 93 S.Ct. 2222.
A-26
of the authoritative court.” Page v. St. Louis Southwestern
Ry., 349 F.2d 820, 821 (Sth Cir. 1965). The instant
case is a classic example of such an intervening change
in the law.
The law governing this case changed when the con-
trolling decision of the Court of Appeals for the Fifth
Circuit was over-shadowed by the decision of the Supreme
Court in City of Kenosha, supra. The result has been
described by Chief Judge Brown of the Fifth Circuit in
Cason v. City of Jacksonville, 497 F.2d 949 (Sth Cir.
1974):
In Harkless v. Sweeny Independent School District,
5 Cir., 1970, 427 F.2d 319 [Harkless III (Cir.)]
we distinguished Monroe and held that a “munici-
pality’—in that case a school district—was a “per-
son” within § 1983 for the purpose of equitable re-
lief . . . [T]he Supreme Court in City of Kenosha
v. Bruno, [citation omitted] rejected the Harkless
distinction and held that a municipality is not a
person within § 1983 whether for damages or equi-
table relief . . . Cason, supra, 497 F.2d at 951.
[5] Plaintiffs have not ev . contended that the Sweeny
Independent School Di: .ct is not to be treated as a
municipality for the purpose of applying City of Kenosha,
supra. The Court of Appeals has already found in this
case that “the school district, under Texas law, is of the
nature of a municipality . . .” Harkless Ill (Cir.), 427
F.2d at 321. Since the decision in City of Kenosha, the
Fifth Circuit has reaffirmed the principle that a Texas
school district is “in the nature of” a municipality. Camp-
bell v. Masur, 486 F.2d 554, 555 (Sth Cir. 1973).
Now, therefore, it is hereby ordered that plaintiffs’
complaint against the defendant District must be and
A-27
same hereby is dismissed both (a) for failure to state a
claim under 42 U.S.C. § 1983, and (b) for lack of juris-
diction under 28 U.S.C. § 1343(3). See note 4, supra.
B. THE INDIVIDUAL DEFENDANTS SUED IN
THEIR OFFICIAL CAPACITIES
As noted above, plaintiffs have also named as defeni-
ants the superintendent of the defendant District and
certain members of its Board of Trustees in their official
capacities. A peculiar niche in our jurisprudence for suits
against public officers in their official capacities was carved
by Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52
L.Ed. 714 (1908). A few words cencerning that decision
are necessary here.
The Eleventh Amendment provides the states with a
constitutional form of sovereign immunity in these words:
The judicial power of the United States shall
be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or Citizens
or Subjects of any Foreign State.° —~
However, the Eleventh Amendment does not mean
that our citizens are completely without remedy when
their constitutional rights are infringed by state ac-
tion. In Ex parte Young, the Supreme Court held,
despite the Eleventh Amendment, that a federal court
had the power to enjoin a state official from enforcing
a statute which was in violation of the Fourteenth Amend-
5. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed
ee See Os & Baum haunts eomate o tums team
ederal court actions t by a state’ iti
panna a y S$ own citizens as well as by
A-28
ment. This result was reached by use of the fiction that
the officer’s unconstitutional activity strips him of his
sovereign character so that the activity in question may
be enjoined without affecting the state’ sovereignty.
i will not pause here to elaborate on the
logical inconsistencies inherent in the fiction of Ex parte
Young.’ Its doctrine has fairly been termed “indispensable
to the establishment of constitutional government and
the rule of law.”* It is a firm part of our jurisprudence.
Poon oo, A.
aa [= individual officials are nominal defendants.” Ford Motor
Co. v. Dept. of Treasury of Indiana, 323 US. 459, 464, 65 S.Ct.
347, 350, 89 L.Ed. 389 (1945).
7. Cf. C. Wright, Law of Federal Courts, § 48 (2nd ed. 1970).
8. Id. at p. 186.
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of “equitable restitution.” Jordan v. Weaver, 472 F.2d
985 (7th Cir. 1973).
The Supreme Court reversed the retroactive award on
the basis of the Eleventh Amendment, pointing out that
such relief
is in practical effect indistinguishable in many aspects
from an award of damages against the State. It will
to a virtual certainty be paid from state funds, and
not from the pocket[s] of the individual state of-
ficial[s] who [were] the defendant[{s] in the action.
It is measured in terms of a monetary loss resulting
from a past breach of a legal duty on the part of the
defendant state officials. Edelman v. Jordan, supra,
415 U.S. at 668, 94 S.Ct. at 1358.
[7] The opinion in Edelman acknowledged the con-
tinued vitality of Ex parte Young as a source of. federal
judicial power to grant prospective injunctive relief, in-
cluding that which may have an “ancillary effect” on the
State treasury. Edelman, supra, 415 U.S. at 668, 94 S.Ct.
1347. But it is now clear that one outer limit has been
placed on the fiction of Ex parte Young. When a state
Official is asked to make a payment directly from the
public fisc to compensate for funds improperly withheld
in the past, our courts will no longer close their eyes to
the fact that such relief is in fact relief against the state.
Returning to the instant case, we see that the “im-
munity” of the defendant District does not derive from
the Eleventh Amendment at all. It derives from the fact
that the District is not a “person” within the meaning
of 42 U.S.C. § 1983. Strictly speaking, this case is, there-
fore, distinguishable from Edelman. But the two cases
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_ ° ‘ i : both con-
are not distinguishable in one crucial respect:
cern the proper use of the doctrine of Ex parte Young.
i Court can conceive of no rational basis for
ae oo a suit against a state officer for retroactive
monetary relief is actually a suit against the state for
purposes of the Eleventh Amendment while also saying
that a suit against a municipal officer for retroactive
monetary relief is not actually a suit against the municl-
pality for purposes of § 1983. There is a difference, but
there can be no distinction in law.
Now, therefore, it is hereby ordered that S emeerel
prayer for back pay and other lost allowances’ must be
and the same hereby is dismissed.
Plaintiffs’ prayer for reinstatement’® properly read,
cnanihen a len ts the defendants be enjoined from
offering employment to teachers in an unconstitutional
fashion and, as a necessary concomitant thereto, that the
plaintiffs be offered reemployment by the District. This
is a request for prospective injunctive relief which this
Court has the power and the duty to pass upon.’ The
9. See plaintiffs’ Second Amended Complaint (Document No. 75)
Part X, paragraph 3.
10. Id. at paragraph 2.
Court notes the action taken by the Court of Appeals
‘a ray t- in Jennings v. Patterson, 488 F.2d 436 (Sth Cir.
Court acknowledged that City of K-nosha meant that the plaintiffs
chinery of government, is proper. See Campbell v.
F.2d 554 (5th Cir. 1973).” Jennings, supra, 488 F.2d at
A-31
Court’s findings of fact and conclusions of law on the
issues thus presented are stated in full in Part III, infra.
it is appropriate, however, that this Court first speak
to plaintiffs Motion to Amend their Second Amended
Complaint.
Il. PLAINTIFFS’ MOTION FOR LEAVE TO AMEND
SECOND AMENDED COMPLAINT.
Perhaps anticipating the limiting effect of City of
Kenosha on their claim, plaintiffs now move the Court
for leave to amend their complaint in the following
manner:
1) to expand their jurisdictional allegations to in-
clude 28 U.S.C. §§ 1331 and 1343(4), as well as
28 U.S.C. § 1343(3);
2) to expand their allegations pertaining to causes
of action to include 42 U.S.C. §§ 1981, 1985 and
1988, as well as 42 U.S.C. § 1983; and
Whether this action by the Court of Appeals has any significance
for the instant case is unclear. If the quoted statement can be read
to mean that certain forms of prospective injunctive relief may over-
come the fiction of Ex parte Young, a careful inspection of the full
consequences of the prayed-for relief would apparently be called for.
Cf. the opinion of the writer in Bush v. Martin, 224 F.Supp. 499,
531 (S.D. Tex. 1963) (Noel, J., dissenting), aff'd, 376 U.S. 222,
84 S.Ct. 709, 11 L.Ed.2d 656 (1964) to the effect that a Jecree
mandating certain state officials to hold Congressional elections state-
wide on an at-large basis constituted an exercise of jurisdiction over
the state itself in contravention of the Eleventh Amendment, pnot-
withstanding Ex parte Young.
Perhaps new life will be breathed into the principle that “the
nature of a suit as one against the state {or municipality] is to be
determined by the essential nature and effect of the proceeding.”
Ford Motor Co. v. Dept. of Treasury of Indiana, supra, 323 U.S. at
464, 65 S.Ct. at 350. But the quoted statement from Jennings, supra,
is sufficiently cryptic to make this Court hesitant to act in reliance
upon it.
A-32
3) to add as defendants the superintendent and five
members of the Board of Trustees of the District,
with their “successors and assigns”, in their indi-
vidual capacities.
Fed. R. Civ. P. 15(a) provides that leave to amend
“shall be freely given when justice so requires.” In the
circumstances of this case, however, the amendments re-
quested threaten to achieve substantial injustice.
Plaintiffs’ original complaint was not explicit as to the
capacity in which the individual defendants were sued.
The parties proceeded as if the superintendent and Board
members were before the Court individually.'* During the
examination of several jury veniremen, plaintiffs realized
there could be severe strategic disadvantages to seeking
damages out of the pockets of the individual defendants.
Plaintiffs accordingly moved before the jury trial of this
claim to dismiss all claims against the District’s officers
in their individual capacities. The parties agreed that a
reference to the stipulated dismissal would be incorporated
in the amended pretrial order. Plaintiffs do not, and in-
deed could not, deny that this action was unequivocal
and was taken on their own initiative.
[10, 11] Fed. R. Civ. P. 41(a)(1) provides that
“CuJnless otherwise stated in the notice of dismissal or
stipulation, [a] dismissal is without prejudice . . .” The
peculiar circumstances of the dismissal of plaintiffs’ claim
against the individual defendants personally left the record
with no formal notice of dismissal or stipulation. The
“notice” and “stipulation” that were actually approved
12. The opinion of this Court in Harkless II (Dist.) reflects the
universal assumption that the individual defendants were appearing
in their individual capacities. 300 F.Supp. at 795.
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by the Court were oral. The transcript reveals that the
dismissal was intended by the plaintiffs, understood by
the defendants and approved by the Court as a dismissal
with Prejudice. Preferring a practical approach to the
application of Rule 41 rather than a mechanistic one,
Battle v. Municipal Housing Authority, 53 F.R.D. 423
(S.D.N.Y. 1971), this Court concludes that the claim
against the individual defendants under § 1983 which
Plaintiffs now seek to assert was dismissed with prejudice
in the spring of 1969."* For this reason, the relevant
portion of plaintiffs’ request to amend must be denied.
[12-14] If the individual defendants were not fully -
protected in their individual capacities by the previous
dismissal, they would nevertheless not be exposed to
plaintiffs’ claim. Public officials exercising discretion in
the performance of their duties have a qualified privilege
which protects them from liability for acts done by them
in good faith. Pierson v. Ray, 386 U.S. 547, 87 S.Ct.
1213, 18 L.Ed.2d 288 (1967); Scheuer v. Rhodes, 416
US. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). When
arbitrary or capricious behavior or acts of personal vin-
dictiveness on the part of an official are alleged, the
Official’s privilege is unavailing. Smith v. Losee, 485 F.2d
334 (10th Cir. 1973), cert. den., 417 U.S. 908, 94 S.Ct.
2604, 41 L.Ed.2d 212 (1974). But in this case the
pleadings are devoid of a single allegation of activity
not protected by this form of immunity. For this reason
a new party. Cf. Watson v.
202 F.2d 407 (Sth Cir. 1953), rev’d on other ay my
75 S.Ct. 166, 99 L.Ed. 74 (1954). grounds, 348 US. 66,
A-34
also, the relevant portion of plaintiffs’ request to amend
must be denied.*™
[15, 16] There is a third alternative reason supporting
this Court’s decision to disallow plaintiffs’ attempt to call
the individual defendants to answer personally in this
action: a reason which applies as well and with the same
result to plaintiffs’ request to expand the complaint to
include causes of action grounded in 42 U.S.C. §§ 1981,
1985 and 1988. The applicable statute of limitations has
expired on plaintiffs’ claims under all four of the sections
of the Civil Rights Act relied upon. Because the Act
contains no statute of limitations specifically applicable
to its provisions, the Court must look to the state limita-
tion on causes of action most nearly analogous to the
ones presented here. O'Sullivan v. Felix, 233 U.S. 318,
34 S.Ct. 596, 58 L.Ed. 980 (1914): see generally, Anno.,
98 Am. L. Rep. 2d 1160 (1964). In this case, the
limitations period is four years, as provided in either
Vernon’s Tex. Rev. Civ. Stat. Ann. Art. 5527 (the con-
tract limitation) or Art. 5529 (the “catch-all” limitation).
Guerra v. Manchester Terminal Corp., 350 F.Supp. 529,
532 (S.D. Tex. 1972).”*
13a. The Court notes that the decision of the Court of Appeals
for the Eighth Circuit in Strickland v. Inlow, 485 F.2d 186 (8th
Cir. 1973), which is in accord with the principles stated herein, is
before the Supreme Court on certiorari at this time. Cf. Wood v.
Strickland, No. 73-1285, 43 U.S.L.W. 3371 (U.S. argued Oct. 16,
1974). The delays which have accompanied the resolution of this
controversy, together with the seemingly remote possibility that the
imminent decision would alter the result here, have led this Court
to proceed without awaiting the outcome of the pending case.
14. This result obtains even if the running of the statute of
limitations was tolled on plaintiffs’ claims against the individual
defendants in their individual capacities under § 1983 until the
spring of 1969.
mw Dawei a
A-35
a = view of the foregoing, plaintiffs’ request to
expand the jurisdictional allegations in thei i
setae g in their complaint
[18] Plaintiffs present two imaginative arguments in
support of their motion to amend. Plaintiffs’ first argu-
ment is based on the facts that (a) considerations of
strategy in presenting their case to a jury caused them
to dismiss claims against the superintendent and Board
members in their individual capacities, and (b) the case
was initially tried before a jury because of this Court’s
erroneous conclusion in Harkless I (Dist.), which was re-
versed in Harkless III (Cir.), that the defendants had a
right to a jury trial. Plaintiffs represent that if this Court
had ruled correctly on the jury question ab initio they
would never have been induced to dismiss their claim
against the individual defendants in their individual ca-
pacities.
In making this argument, plaintiffs apparently subscribe
to a “game theory” of justice in which the cardinal rule
is that they shall not lose except entirely through their
own fault. The “game” plaintiffs propose to play apparent-
ly has no rules providing for a res judicata effect on claims
dismissed with prejudice, for a qualified official’s privilege,
or for a statute of limitations.
It is always unfortunate when the rights a client may
have are jeopardized by an attorney’s decision based on
an erroneous view of the law. It is particularly unfor-
tunate when the attorney’s decision is inspired by an
erroneous decision by a court. But plaintiffs have cited
no authority in support of their proposition that the situa-
tion must be corrected regardless of the consequences for
A-36
other parties’ rights. While plaintiffs’ argument has super-
ficial appeal, it has no merit.
[19] Plaintiffs’ second argument in support of their
motion to amend is grounded on 28 U.S.C. § 1653 which
provides that, “[dJefective allegations of jurisdiction may
be amended, upon terms, in the trial or appellate courts.”
Plaintiffs’ interpretation of the weaknesses of their claim
as being jurisdictional in character was perhaps inspired
by the Supreme Court’s approach in City of Kenosha,
see note 4, supra, and by language in recent cases in this
Circuit. Campbell v. Masur, supra, 486 F.2d at 555;
Sterzing v. Fort Bend Ind. School Dist., 496 F.2d 92, 96,
n. 2 (5th Cir. 1974).
But, as noted above,’® there is a unique identity in
28 U.S.C. § 1343 between lack of jurisdiction and failure
to state a claim. This identity explains why suits against
municipalities can be dismissed on jurisdictional grounds
when the root deficiency is, in reality, a failure to state
a claim “authorized by law”. If the result of plaintiffs’
amendment to their complaint would be merely to correct
a “defective allegation of jurisdiction” it would present
a different issue. But here the effect of the proffered
amendment would be to weave a new claim into the
fabric of this lawsuit.
Now, therefore, it is hereby ordered that for all of the
foregoing reasons, plaintiffs’ motion to amend must be
and the same hereby is denied in every particular.
The only claim properly before the Court is that brought
under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) against
the superintendent and certain members of the Board of
15. See note 4, supra.
A-37
Trustees of the District, all sued in their official capacities
only, for injunctive relief in the nature of reinstatement.
To a disposition on the merits of that claim
\ | we now
Ill. THE MERITS OF PLAINTIFF’S CLAIM
Subject to the foregoing, this Court’s findings of fact
and conclusions of law pursuant to Fed. R. Civ. P. 52(a)
follow. The same apply not only to the above articulated
claim of plaintiffs for injunctive relief in the nature of
reinstatement, but also in the alternative to each claim
which this Court hereinabove has ordered dismissed or
denied.
A. FINDINGS OF FACT
(1) Prior to the school year 1965-66, the Sweeny In-
dependent School District operated a racially segregated
school system. White students and faculty were assigned
to one group of schools, and Negro students and faculty
were assigned only to the George Washin
pe g gton Carver
(2) During the spring of 1965, and specifically at a
meeting held on May 4, 1965, the Board of Trustees
(hereinafter called “Board”) adopted a two-phase plan
of desegregation in prompt response to the guidelines
promulgated by the United States Department of Health,
Education and Welfare for the desegregation of public
schools.
(3) On May 5, 1965, the superintendent of schools
for Sweeny distributed to all teaching personnel a memo-
randum advising that certain steps would soon be taken
to bring the District into compliance with the Civil Rights
A-38
Act of 1964. The memorandum essentially digested the
plan formulated at the May 4 meeting of the board.
Point (4) in the memorandum was as follows:
Beginning September, 1966, all twelve grades in the
system will be fully integrated, based on assignment
by school officials and including the integration of
the teaching staff.
(4) The desegregation plan was duly submitted for
consideration by the appropriate federal officials. At the
Board meeting of September 7, 1965, superintendent
Miller reported that the plan had been approved by the
United States Office of Education and that implementa-
tion could begin.
(5) Thereafter, the District initiated the first phase of
the plan, which was (a) that each student be permiited
to attend the school of his.choice, and (b) that desegre-
gated kindergarten classes be formed, each for the school
year 1965-66. The second phase of the desegregation plan,
which was to commence in 1966-67, called for the com-
plete desegregation of the system, including abolition of
the George Washington Carver School as such, and the
employment of all teachers without regard to race. Speci-
fically, the plan provided that teachers, both White and
Negro, would be employed for the 1966-67 year in ac-
cordance with anticipated need and “strictly on the basis
of training, qualification, ability, without regard to race.”
(6) During the 1965-66 school year the District con-
sisted of five schools: the primary school (kindergarten
through third grade), the intermediate school (grades
four through six), the junior high school (grades seven
through nine), the senior high school (grades ten through
A-39
twelve), and the George Washington Carver School
(grades one through twelve). All faculty and all students
at the George Washington Carver School were Negroes.
Students of both races, including sixty-five Negro students
attended the other four schools in the District, but only
White teachers taught at these schools. During the 1965-
66 school year, the District employed 23 Negro teachers
and one Negro principal.
(7) At its meeting of April 5, 1966, the Board ap-
proved a more detailed version of phase two of the plan
for complete desegregation of the system to be effected
September 1, 1966. In regard to faculty, it provided that
[a]ll teachers will be employed and assigned on the
basis of ability and qualifications.”
(8) In accordance with the desegregation plan adopted
the previous year, the District completely integrated its
school system at the start of the 1966-67 school year.
The George Washington Carver School was abolished as
a Negro school. All students of all races in grades ten,
eleven and twelve were enrolled in Sweeny Senior High
School. All students of all races in grades seven, eight
and nine enrolled in the Sweeny Junior High School.
All students of all races in grades four, five and six
enrolled in the Sweeny Intermediate School, which was
‘housed in the former George Washington Carver School.
All students of all races in kindergarten and in grades
one, two and three enrolled in the Sweeny Primary School.
In kindergarten and grades one through six, students were
assigned to classroom units strictly on the ratio of races
existing within a given grade. For example, if twenty-five
percent of all fourth grade students were Negro, each
fourth grade class contained twenty-five percent Negro
A-40
and seventy-five percent White students. In all required
or basic courses in the higher grades, students were as-
signed strictly on the racial ratio of each course as in
the elementary grades. In order to implement this racial
balancing system, a “tracking” system which had previous-
ly been employed was abandoned. The racial ratio of
elective courses at the secondary level depended, of course,
upon which students elected to take them. So far as the
evidence discloses, this system of racial balancing as
outlined in the desegregation plan and implemented for
the first time in 1966-67 has been used every semester
since September of 1966. At the time of trial, the District
operated four schools serving approximately 2,000 stu-
dents, of whom about one-fourth were Negroes. It is
undisputed that a unitary system has been achieved. Cf.
Singleton v. Jackson Municipal Separate School Dist.,
419 F.2d 1211 (Sth Cir. 1969), cert. denied, 396 U.S.
1032, 90 S.Ct. 612, 24 L.Ed.2d 530 (1970).
(9) The Court finds that the speed of desegregation
in the District, while deliberate, was appropriate. It was
accomplished voluntarily and without litigation or judicial
compulsion. When appropriate, the approval and coopera-
tion of the United States Department of Health, Education
and Welfare was readily obtained. In short, there is no
suggestion of bad faith, dilatory tactics, foot-dragging, or
intransigent resistance either to desegregation of the Dis-
trict schools, or to this transformation into a unitary
system. The latter occurred before the unitary system as
such was judicially conceptualized or required by our
courts. Green v. County School Bd., 391 U.S. 430, 88
S.Ct. 1689, 20 L.Ed.2d 716 (1968); United States v.
Jefferson County Bd. of Educ., 372 F.2d 836 (Sth Cir.
1966) (decided Dec. 29, 1966), aff'd & modified en banc,
A-41
380 F.2d 385 (Sth Cir. 1967), cert. denied, 389 U.S.
840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967).
(10) Mr. Fred Miller is superintendent of schools in
the District and has served in that capacity since 1958.
He is an experienced school administrator, having served
as superintendent at Littlefield, Texas, from 1944 to
1946, and at Abernathy, Texas, from 1947 to 1958.
In his capacity as superintendent, he is the chief adminis-
trative officer of the District, charged with executing the
policies of the elected Board. All teaching and instruc-
tional personnel in the District were then and are now
hired by the Board of Trustees upon recommendation
of the superintendent, and the Board follows his recom-
mendations in this respect as a matter of course. The
Board has never employed anyone except upon the recom-
mendation of the superintendent. All teachers in the Dis-
trict are hired on a year-to-year basis. While the super-
intendent has at times received longer contracts, no
teacher has ever had a contract of more than one year’s
duration. As state law did not then provide for faculty
tenure, there was no seniority tenure plan in the District.
(11) Each year non-teaching professional persons are
recommended by the superintendent for reemployment at
the regular February meeting of the Board. The super-
intendent usually presents his recommendations for re-
employment of classroom teachers at the regular March
meeting of the Board. He advises the Board as to which
annual teaching contracts should be renewed and which
Should be allowed to expire. New teachers and other
personnel are recommended as needed. The Board votes
on the recommendations of the superintendent at the
meeting in which they are presented.
A-42
(12) The superintendent bases his recommendations
for reemployment of classroom teaching personnel on a
system of teacher evaluation. Separate evaluations are
made of each teacher in the system by his or her principal,
the curriculum director, and the superintendent. During
the period when the District operated a dual system as
well as during the transitional 1965-66 school year, White
teachers were rated and compared only with other White
teachers, and Negro teachers, only with other Negro
teachers. As a result of the desegregation plan prepared
by superintendent Miller, promulgated by the Board and
approved by the United States Department of Health,
Education and Welfare, the teacher evaluation process
used in the spring of 1966 for evaluation of all teachers
to be recommended for reemployment for the 1966-67
term, differed from previous evaluations. For the first
time, each teacher in the District was evaluated and
compared with all other teachers, both Negro and White,
without regard to race. It should be noted, however, that
the Department of Health, Education and Welfare had
neither promulgated nor specified guidelines with respect
to the technique of teacher evaluation to be employed.
(13) The evaluation process undertaken in the spring
of 1966 was especially critical because a staff require-
ments study ordered by superintendent Miller indicated
that there would be at least twelve fewer teaching posi-
tions in 1966-67 than there were in 1965-66. It was
expected that the District would need four fewer elemen-
tary teachers and eight fewer teachers at the secondary
level. This anticipated reduction of staff was thought neces-
sary to eliminate duplication resultant from unitization.
It turned out that this projection was a substantial over-
estimate, as the actual net reduction for 1966-67 was
A-43
only four faculty positions. However, the Court is satisfied
that this was an honest miscalculation and that defend-
ants, in the spring of 1966, were under the sincere im-
pression that the faculty complement would have to be
pared by twelve positions for the ensuing school year.
(14) One method of faculty evaluation employed in
the District involved the preparation by building principals
of an evaluation form published by the Steck Company of
Austin, Texas. Designated as Steck Form 3528, this in-
strument is composed of a list of thirty-eight characteris-
tics** which are generally deemed to be desirable in a
teacher. These characteristics are grouped under seven
general headings, to-wit: “Personal Qualities”, “Teaching
Ability”, “Routine and Physical Conditions”, “Discipline”,
“Cooperation”, “Professional Growth”, and “Social Ef-
ficiency.” Opposite each characteristic there is a scale
by which the evaluator can grade the teacher as “Ex-
cellent”, “Good, above the average”, “Fair or average”,
16. At the top of the form is a blank for the name of the teachers
to be evaluated and the subject taught. There follows a list of thirty-
eight characteristics, to-wit: Appearance; Health; Enthusiasm and
optimism; Initiative and self-reliance; Resourcefulness; Sympathy;
Self-control; Tact; Industry; Intellectual ability; Use of English:
Organization of subject matter; Preparation for the lesson; Stimula-
tion of thought ; Securing pupils’ participation; Utilization of pupil’s
interest ; Skill in questioning ; Skill in drills; Passing and moving in
rooms ; Use of simple signals; Careful use of supplies; Heat, ventila-
tion and light; Control of Class through good teaching; Contro! of
class through good routine; Ability to handle extreme cases: Char-
acter building; Cooperation with superiors; Cooperation with other
teachers; General attitude towards criticism; Use of professional books
and magazines; Other books and magazines; Summer schools corres-
pondence, etc.; Interest and cooperation in community affairs; Co-
—— with Parents; Selection of friends; Social affairs second:ry
work ; Social judgment, “manners”; Conversation, poi
poise and
A-44
“Poor, or below the average”, and “Unsatisfactory”. The
Steck Form has been used by the District for many years.
(15) On March 1, 1966, superintendent Miller sent
to each principal in the District a confidential memoran-
dum in which he requested that teacher ratings be sub-
mitted on or before March 7, 1966. In addition to re-
quiring the regular Steck evaluation procedure described
above, the superintendent requested that the principals
inscribe an additional evaluation or rating, on the first
page of each teacher’s Steck Form, which he designated
an “overall” rating. This method of rating, devised by
the superintendent, was to be computed on a “2 to 10”
scale and expressed in the following manner:
1 Excellent (as good as the best you have experienced)
Good (above average)
NOAA UA™ OO CO
LiL lotolol. i.
FP oLT
The rating was for convenience only, to be placed on
the Steck Form.
(16) The White principals prepared the evaluations on
the Steck Form, as well as the overall rating as requested.
As the principal of the all-White elementary school was
seriously ill, she was unable to comply and the evalua-
tions from the previous year had to be used for her
teachers. Principal Edward Gee of the all-Negro Carver
school likewise prepared the forms and overall rating as
requested and returned them to superintendent Miller.
Gee prepared such an evaluation and rating for all plain-
A-45
tiffs except Florence Jones, who was not evaluated in the
regular manner because she was a substitute teacher
employed on a non-contract basis.
(17) Curriculum director C. W. New and superinten-
dent Miller also prepared overall numerical ratings for
each contract teacher in the District, including all of the
plaintiffs except Florence Jones. These ratings were as-
signed on the basis of the scale described in finding of
fact (15), supra. Neither the curriculum director nor
the superintendent prepared a Steck Form for the teachers.
(18) As to each teacher, the overall numerical ratings
of the respective principals, the curriculum director and
the superintendent were added to produce a composite
overall rating for each teacher. This composite rating
formed the basic means of comparison by which the
superintendent made his critical decision to recommend
retention or separation in the case of each plaintiff.
(19) Plaintiffs have levied a vigorous attack on the
validity of defendants’ teacher evaluation technique, i.e.,
the use of the Steck Forms and the overall numerical
ratings. Crucial to this attack was the interesting and
informative expert testimony of Professor E. Edmund
Reutter, Jr., of Columbia University, an authority on the
subject of staff personnel administration in the public
school setting. While lacking practical administrative
experience in the field of public school administration,
Dr. Reutter is clearly qualified as a theoretician, author
and lecturer in the field. Prior to testifying, Dr. Reutter
had been afforded an opportunity to familiarize himself
with the evaluation devices used by the District, and to
form an opinion as to the degree of their perfection. This
opinion was unfavorable.
A-46
Dr. Reutter commenced his testimony by postulating
that the ultimate purpose of a personnel decision to
some extent affects the choice of evaluating mechanisms.
He observed that the more serious the human conse-
quences—such as possible termination—the more care-
fully the instruments of measurement should be wielded.
In achieving the desired precision, Dr. Reutter posited
it is initially necessary to determine what is to be evalu-
ated and to define the criteria which are relevant. For
example, if the quality to be measured is pedagogical
efficiency, then only those characteristics reasonably re-
lated to that quality may appropriately be considered.
Having isolated the relevant areas of inquiry, Dr. Reutter
posited that it then became necessary to construct an
evaluative device which is as objective as possible. By
objectivity, he explained, is meant that the outcome of
the evaluation should be determined to the greatest possi-
ble degree by the neutral characteristics of the evaluatee
and to the smallest possible degree by the emotional feel-
ings, personal predilections, or subjective preferences of
the evaluator. Presumably, objectivity is attained when
similarly qualified evaluators, applying similar criteria
to similar subjects, reach similar results. Dr. Reutter
emphasized that in his opinion the achievement of ob-
jectivity rests upon three “pillars”: (1) the language em-
ployed in the evaluative instruments to describe each
characteristic to be measured must be composed of words
which are reasonably precise and uniform in meaning;
(2) there must be a fairly specific standard of measure-
ment to guide the evaluator in ascribing a particular value
to a particular characteristic; and (3) there must be a
reasonably well defined system for assigning relative
weight to the characteristics measured. To implement
A-47
these three pillars of objectivity and thereby enhance
evaluative perfection, Dr. Reutter insisted upon coinci-
dence of the following procedural refinements in the
process: (1) each evaluator should be trained in person-
nel evaluation generally and in the use of the particular
evaluative instrument which is to be used; (2) several
of these trained evaluators should be employed for each
criterion or characteristic; (3) there should be several
evaluations with respect to each characteristic over a
continuum of time; (4) the several evaluators should
reach and record their conclusions independently; (5) all
evaluations should be based on first-han i observations of
that which is being evaluated; and (6) all evaluations
should be recorded without delay along with supporting
evidence to justify the result.**
In virtually all of the foregoing results, Dr. Reutter
opined that the District’s method was deficient. If the
issue in this suit were only whether the method used
conformed to the mechanical requirements postulated by
Dr. Reutter, the Court would be inclined to agree that
variances did exist. However, the Court cannot agree
that full compliance with the six procedural refinements
postulated by Dr. Reutter is requisite to a constitutionally
acceptable (racially non-discriminatory) evaluation of the
District’s teachers. To the contrary, the Court is of the
opinion the teacher evaluation procedures employed by
the District in the spring of 1965 were not unfair, biased,
or fatally subjective because they did not conform in all
17. It should be noted that Dr. Reutter pointed to no authority
to which the District might have turned and found the precise pro-
cedures he outlined recommended. Collectively, the refinements listed
in the text are the products of Dr. Reutter’s after-the-fact considera-
tion of the problem facing the District.
A-48
respects to the six procedural postulations of plaintiffs’
expert.
If one thing is clear in the area of public school per-
sonnel administration, it is that the subject of teaching
personnel evaluation is a controversial and volatile one
upon which very little uniformity of professional opinion
exists.’* This rather confused state of the art was conceded
by Dr. Reutter and is borne out by a representative
sampling of the literature prepared by qualified authors
in the field.** The learning is consistent in recognizing
. “Probably no aspect of education has been discussed with
greater frequency, with as much deep concern, or by more educators
and citizens than has that of teacher effectiveness—how to define it,
how to identity i, how to menswe &, how to evlaato &, ant bow
to detect and remove obstacles to its achievement. Separate facets o
this problem have been studied, too, by state and local school systems,
by individuals, by teams of educational researchers at universities.
But findings about the competence of teachers are inconclusive and
piecemeal; and little is presently known for certain about teacher
“Tt is not an exaggeration to say that we do not today know how
to select, train for, encourage, or evaluate teacher effectiveness. And
many educational researchers have abandoned the field of competence
trator everyday, real problems in the field
wine dos coniance, Ponclical fockdoas have to be mode, ond. these
decisions are dependent upon ideas about quality of teaching. For
example, applicants for teaching positions must be screened, prepared;
and judged. Teachers must be employed, assigned, transferred, a
occasionally released. Problems such as these do not await definitive
answers.” B. J. Biddle & W. J. Ellena, Contemporary Research on
Teacher Effectiveness v-vi (1964).
appreciate the content of the expert testimony. Toward this end,
a et collected a limited but representative sampling of the rather
extensive literature on the subject. By a letter, all counsel were
~~
eee
yom 0 Ry ts ve!
A-49
that there are several general approaches to teacher
evaluation which are now prevalent and that some meth-
ods are more appropriate for a given purpose than
others. However, careful consideration of the literature
makes manifest that there is no general consensus and
that the authorities do not agree that a particular method
of evaluation is either absolutely mandatory or totally
unsatisfactory for any purpose.
This divergence of viewpoint was dramatized by Dr.
Reutter’s skeptical attitude toward the efficacy of the
advised of the Court’s endeavors in this respect and were invited to
inspect in the Clerk’s office excerpts from the literature which the
Court found of interest. Plaintiffs’ expert, Dr. Reutter, was con-
versant with all of the works and articles consulted. At the snp-
plemental hearing, he testified that the following were professionally
respected works in the field: W. S. Elsbree & E. E. Reutter, Jr.,
Principles of Staff Personnel Administration (1959); W. S. Elsbree
& E. E. Reutter, Jr., Staff Personnel in the Public Schools (1954);
H. E. Remmers, “Rating Methods in Research on Teaching”, in
Handbook of Research on Teaching (N. L. Gage, ed. 1963); S.
Brighton, Increasing your Accuracy in Teacher Evaluation (1965);
B. J. Biddle, “The Integration of Teacher Effectiveness Research”
and H. Davis, “Evolution of Current Practices in Evaluating Teacher
”, both in Contemporary Research on Teacher Effective-
ness (B. J. Biddle & W. J. Ellena, ed. 1964); D. E. Beecher &
M. E. Troyer, The Evaluation of Teaching (1949); L. S. Vander
Werf, How to Evaluate Teachers and Teaching (1960); H. E. Moore
ion Association. Although this pamphlet is informative as to
the various procedures presently employed for teacher evaluation,
Dr. Reutter pointed out that it is primarily a polemic reflecting its
sponsors’ opposition to merit rating.
The Court also consulted J. M. Hughes’ Human Relations in
Educational Organization (1955). Dr. Reutter described the latter
work as a sort of overview taken at the end of the author’s long
ae em ae Gon os cmb anly of Ge
subject.
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simple checklist and numerical rating methods used by
defendants in the instant case. Although he presented an
articulate and powerful theoretical critique of these meth-
ods, the facts are inescapable that the checklist and
numerical methods are the earliest forms of evaluative
tools, and are currently in widespread use among practical
educators throughout Texas. They have found consider-
able acceptance by practitioners generally. Checklist forms
similar in conception to the Steck Form are so recognized
by the literature and are commonly employed by school
districts across the country. See, e.g., H. Davis, “Evolu-
tion of Current Practices in Evaluating Teacher Compe-
tence,” in Contemporary Research on Teacher Effective-
ness, 41-62 (B. Biddle and W. Ellena ed. 1964). This
record contains as exhibits examples of checklist evalua-
tion forms used by several neighboring school districts, all
of which are similar in approach to the Steck Form. De-
fendants elicited the testimony of Mr. W. W. Thorn, an
experienced school administrator and presently superin-
tendent of the nearby Aldine Independent School District,
to the effect that the checklist method of teacher evalua-
tion is commonly employed and generally deemed reli-
able by practicing educators in Texas. Mr. Thorn also
testified that the overall numerical rating device is not
an w usual method and could be understood and effect-
ively employed by a reasonably competent school prin-
cipal or administrator.
[20] It is within neither the province nor the compe-
tence of this Court to attempt to resolve the ongoing
controversy over the advisability of teacher rating and the
relative effectiveness of the various techniques used for
that purpose. It may well be that an elaborate and com-
plex evaluative procedure such as that advocated by
A-51
Plaintiffs is an enlightened and perhaps even ideal de-
sideratum of efficient faculty personnel administration
It is interesting to note, however, that nowhere in the
literature examined by the Court is there recommended
precisely or substantially so, such an evaluative program
as that offered by plaintiffs. Although intriguing, the point
is not presented for decision, for the question before the
Court is not whether the District practiced perfect, or
even good, techniques of managerial decisionmaking. It
is, rather, whether the District practiced racial discrimina-
tion in such decisionmaking. At the very most, plaintiffs
have proven that the District failed to adopt plaintiffs’
view of sound personnel management. There has been
no proof that the District’s approach was arbitrary, ca-
pricious or racially biased. '
In sum, the Court finds that the Steck Form and the
numerical overall rating methods used by defendants for
evaluation and comparison of faculty members in March
of 1966 were consistent with at least one professionally
accepted and reasonably defensible view of school per-
sonnel administration, were a fair measure of professional
qualification, were applied evenhandedly to all incum-
bent contract faculty members, and were not racially
discriminatory in intent, application or result.
(20) Plaintiffs’ attack on the professional acceptabili
of the District’s evaluation program having been a
some note should be taken of an apparent effort on the
part of plaintiffs to demonstrate that the superintendent
harbored racially biased attitudes which colored his ac-
tions and decisions. This effort was conducted primarily
through innuendo, including the absurd inference that the
superintendent’s place of birth being West Texas, auto-
A-52
matically impugns his capacity for fairness in racial
matters. Suffice it to say that this record contains ab-
solutely no evidence of racist attitudes on the part of the
superintendent. To the contrary, Miller testified in re-
sponse to specific questions by plaintiffs’ counsel on cross-
examination that his recommendation with respect to each
plaintiff was not motivated by plaintiffs’ race. The Court
deems this testimony credible and so finds.
(21) In addition to the Steck Forms and the overall
numerical ratings, superintendent Miller requested curric-
ulum director New to prepare informal anecdotal evalu-
ations on each of the Carver faculty members. No similar
anecdotal evaluations were prepared at this time on White
teachers. At trial, the superintendent testified that because
he wished to be prepared for possible controversy arising
from complete desegregation at the start of the 1966-67
school year, he asked New to prepare the anecdotal eval-
uations to assist him in defending or criticizing the Carver
faculty members if the need arose. The superintendent
did not recall the precise date upon which these evalua-
tions were submitted to him but he testified that he did
not use them as a basis for preparing his recommenda-
tions for the March meeting. The credibility of this testi-
mony was vigorously attacked. The Court accepts the
superintendent’s version.
The superintendent’s inability to recall the details of
the matter, which the Court finds credible, suggests that
the superintendent’s reliance upon the anecdotal evalua-
tions, if any, was minor. The Court is persuaded that the
New narratives were conceived with a view toward assist-
ing the superintendent in coping with possible desegrega-
tion trouble—a contingency which fortunately never
A-53
materialized—and were not intended to be an element in
the evaluation process.
The curriculum director’s anecdotal evaluations them-
selves are not models of diplomatic composition. How-
ever, they are highly descriptive and, to the extent that
race is mentioned, they are not insulting and they are
not irrelevant to the superintendent’s purpose of preparing
for desegregation. Although Dr. Reutter testified that the
anecdotal approach should be used with caution, he cor-
rectly pointed out that it is an accepted method of evalu-
ation. Indeed, one sample rating form to which Dr.
Reutter gave his qualified approval (the Ohio Teaching
Record Anecdotal Observation Form),”° employs a vari-
ation of the technique.
(22) The March 1966 numerical ratings of the Carver
faculty, with the exception of Florence Jones are as
follows:
Curr.
Teacher Prin. Dir. Supt. Comp.
Plaintiffs
1. Velma Shelby 7 4 4 15
2. Lillian Jammer 5 2 2 9
3. Yarbough Kennedy 7 2 3 12
4. Robert Woodard 5 2 2 )
5. Mildred Harkless 6 2 3 11
6. Alice Mae Jones 6 3 2 11
7. B. F. Leviston 5 1 2 8
8. John P. Jones 4 2 2 8
9. W. L. Dotson 6 3 4 13
20. Published by the College of Education, Ohio Sta i
(2d ed. 1945). by Y eee
A-54
Non-Plaintiffs Not Reemployed
1. Sallie Mae Woodard 7 3 4 14
2. Hazel Higgins 8 3 15
3. Huretta Larkin 8 4 16
4. Eugesia Lowe 8 4 5 17
5. Claudia Wilson 8 2 4 14
6. Mary Alexander 5 1 2 8
7. Elijah Childers 6 4 a 14
8. H. A. Simien 6 + 5 15
Teachers Reemployed
1. Margaret Gee 8 5 6 19
2. Cleo Grimes 8 6 8 22
3. Tena Simien Q 6 6 21
4. Booker Holbert 7 5 6 18
5. Edward Smith 6 5 6 17
6. Janis Hadnott 6 6 5 17
[21] (23) Although the above ratings were assigned
on a faculty-wide basis without regard to race, it is in-
teresting to note that each of the six reemployed Negro
teachers scored higher than any of the nine plaintiffs.
Additionally, each of the six reemployed Negro teachers
scored higher than, or as high as, the highest scoring of
the non-plaintiffs who were not reemployed. Therefore,
on the basis of the composite score and without regard
to teaching fields, it is apparent that the Negro teachers
who were reemployed composed six of the seven most
professionally competent members of the Carver staff.
Conversely, of the seventeen Negro teachers who were
not reemployed, both plaintiffs and non-plaintiffs, sixteen
were less professionally competent than the least competent
of the six Negro teachers who were reemployed. It appears
from the foregoing that the selection of the six Negro
teachers to be reemployed from the Carver faculty was
made on the basis of legitimate good faith, professional
BM a+ 2b OA evading:
A-55
judgment, and reflected a sincere desire on the part of
defendants to retain the best personnel that Carver
had to offer.
(24) The previous finding is supported by plaintiffs’
Exhibit No. 396, which is another roster of Carver
faculty. In addition to the composite scores heretofore
dealt with, this exhibit contains a ranking assigned to
each Carver teacher by his principal curriculum director
and superintendent. As there are twenty-three Carver
teachers considered, each teacher was assigned a number
from 1 to 23 in the order of descending competence. The
three rankings were then added to produce a composite
ranking—the lower numbered teachers being the most
competent. On this basis, the five lowest numbered Carver
teachers were among the six Carver teachers who were
reemployed. Although the probative force of this ranking
is weakened by the fact it was applied to the Carver
faculty but not District-wide, the nearly perfect correla-
tion between the Carver-wide rankings and the District-
wide numerical overall evaluations does reinforce the
validity of the latter. It serves to confirm the predictable
phenomenon that the group of Carver teachers who were
reemployed on the basis of the District-wide evaluation
were also the best teachers at Carver.
(25) In determining which teachers would be recom-
mended for reemployment during the 1966-67 school
year, the qualifications of each incumbent teacher were
measured against those of every other incumbent teacher
in the same grade/subject-matter area. For the first time
in the history of the District, this was done on an all-
faculty basis without regard to race. Employing the
numerical overall ratings assigned to each teacher by
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interracial groups, a schematic reconstruction of this
comparison produces the following results and finding of
the Court:**
(a) First Grade Teachers:
(1) Plaintiff Alice Mae Jones 6-3-2 il
(2) Others:
V. Arrington 8-6-9 23
C. Cossey 8-5-10 23
C. Rudd 9-9-10 28
P. Walker 7-4-9 20
Finding: Alice Mae Jones was the least qualified of the members
of the relevant interracial group.
(b) Fifth Grade Teachers:
(1) Plaintiff John P. Jones 4-2-2 8
(2) Others:
M. Doolen 7-9-6 22
E. New 8-9-7 24
D. Stewart 7-8-7 22
E. Vaughn 8-7-7 22
E. Whittet 8-9-5 22
Finding: John P. Jones was the least qualified of the members of
the relevant interracial group.
21. In the District at the time in question, it was evidently not
uncommon for teachers of both races to be assigned to teach a
grade or subject other than that for whjch they might be best qualified
in terms of “paper” qualifications such as state certification or number
of preparatory semester hours. This is attributable to a number of
factors, including administrative convenience, legitimate differences
of opinion about the substantive content of preparatory courses as
described on college transcripts, and the occasional unreliability of
state certification classifications as indicia of subject-matter com-
petence. Therefore, for the purpose of comparing teachers, the fairest
manner in which to structure the comparison groups is by grade or
subject-matter actually taught in 1965-66 rather than by certification,
college major, or the like.
A-57
(c) Sixth Grade Teachers:
(1) Plaintiff Robert Woodard 5-2-2 9
(2) Others:
M. Gill 7-9-6 22
J. Marsh 6-6-4 16
M. Maxwell 9-9-7 25
E. Smith 8-7-4 19
Finding: Robert Woodard was the least i f the members
of the relevant interracial group. —<
(d) Science Teachers:
(1) Plaintiff Yarbough Kennedy 7-2-3 12
(2) Others:
M. Wood 6-4-4 14
E. Andrews 9-9-7 25
G. Sparkman 8-7-4 19
M. Rainey 6-6-4 16
Finding: Yarbough Kennedy was the least qualified of the members
of the relevant interracial group.
(e) History-P.E.-Science Teachers:
(1) Plaintiff Lillian Jammer 5-2-2 9
(2) Others:
J. Pantalone 7-8-3 18
E. Neptune 8-7-5 20
J. Spheeris 7-8-6 21
P. Boazman 6-5-4 15
E. McKinney 8-9-6 23
C. Spano 8-7-6 21
M. Wood 6-4-4 14
E. Andrews 9-9-7 25
G. Sparkman 8-7-4 19
M. Rainey 6-6-4 16
E. Schuchardt 9-10-8 27
D. Boazman 7-7-4 18
G. Hastings 6-7-4 17
F. Dailey 8-9-7 24
R. Swan 8-8-6 22
Finding: Lillian Jammer was the least qualified of the members of
the relevant interracial group.
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(f) History-Band Teachers:
(1) Plaintiff Benjamin Leviston 5-1-2 8
(2) Others:
H. Spencer 7-7-6 20
D. Boazman 7-7-4 18
E. Schuchardt 9-10-8 27
G. Hastings 6-7-4 17
F. Dailey 8-9-7 24
R. Swan 8-8-6 22
Finding: Benjamin Leviston was the least qualified of the members
of the relevant interracial group.
(g) Homemaking Teachers:
(1) Plaintiff Velma Shelby 7-4-4 15
(2) Others:
H. Tillman 8-7-6 21
C. Maples 9-9-7 25
(h) Shop Teachers:
(1) Plaintiff Willie Dotson 6-3-4 13
(2) Others:
F. Gill 6-5-4 15
C. Stockton 9-9-6 24
Finding: Willie Dotson was the least qualified of the members of
the relevant interracial group.
(i) Commercial-History Teachers:
(1) Plaintiff Mildred Harkless 6-2-3 11
(2) Others:
B. Cooper 1-7-6 20
B. Spencer 8-8-6 22
J. Swan 9-9-7 25
E. Schuchardt 9-10-8 27
D. Boazman 7-7-4 18
G. Hastings 6-7-4 17
F. Dailey 8-9-7 24
R. Swan 8-8-6 22
Finding: Mildred Harkless was the least qualified of the members
of the relevant interracial group.
A-59
(26) The highest scorer among plaintiffs was Velma
Shelby, with a composite rating of 15. Willie Dotson was
second in the plaintiff group, with a 13. Six of the
teachers of both races who were reemployed were also
within this 13-15 range (two 13’s, one 14 and three
15’s). However, neither Shelby nor Dotson equalled or
surpassed their reemployed counterparts in the same
grade/subject-matter area. It can be seen from the data
collected in the foregoing finding that each of plaintiffs,
with the exception of Florence Jones who was not
rated, ranked lowest among his respective grade/subject-
matter interracial grouping. To avoid the rather damaging
impact of this showing, plaintiffs strenuously challenged
the validity of the evaluation methods which defendants
employed through the opinion testimony of Dr. Reutter,
supra. For the reasons stated in finding of fact (19),
supra, this challenge must be rejected.
[22] Additionally, however, plaintiffs contend that the
result would necessarily have been different if only
precisely quantifiable mechanical criteria had been used
to guide the employment decision, i. e., level of state
certification, semester hours of background in the sub-
ject taught, years of teaching experience, and years of
experience in the District. These are commonly described
and referred to as “paper” qualifications, and were so
described in the literature, as well as by the expert wit-
nesses and all counsel at trial. It is true that each of
plaintiffs has a record superior to that of certain of the
retained or newly-hired White teachers, if the measure-
ment is confined to their paper qualifications. For illustra-
tive purposes, Plaintiffs’ Exhibit No. 398, prepared by
plaintiffs’ expert witness, Professor Howard L. Simmons,
case, teacher evaluation would amount to nothing more
than adding up years of service and semester hours. As
Professor Reutter pointed out, such a simplistic approach
intendent Miller submitted to the Board the names of
(28) All White teachers who taught during the school
year 1965-66 were offered contracts for 1966-67. Of
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the twenty-three Negro teachers employed at Carver
during 1965-66, six were offered contracts for 1966-67,
and the remaining seventeen were not offered new con-
tracts. In addition to the six Negro teachers retained, the
former principal of Carver, a Negro, was also retained
in a teaching capacity, thus making a total of seven
Negroes retained.
(29) Seven White teachers who were serving during
1965-66, and who were renewed in March of 1966, re-
signed before the commencement of the 1966-67 school
year. They were all replaced by Whites. Three White
teachers either resigned or took maternity leave during
the 1965-66 school year and were replaced by Whites, all
of these replacements being reemployed for 1966-67. At
various times subsequent to the March board meeting,
approximately six new faculty positions were added, and
filled by Whites. All teachers newly hired for the 1966-67
school year were White. The principal of the White ele-
mentary school died during the 1965-66 school year and
was replaced for the 1966-67 year by an incumbent
White teacher. Many of the newly hired White personnel
were less qualified than one or more plaintiffs in terms of
paper qualifications alone. However, in view of the
observed inadequacy of plaintiffs, superintendent Miller
chose to discount such factors as tenure and experience,
and concluded that the interests of the District would
best be served by seeking quaiified replacements from
outside.
[23] Such a determination is necessarily judgmental
but is no more unreliable than any personnel decision
involving the replacement of an incumbent employee,
whose weaknesses are known, by a new employee whose
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weaknesses may yet be hidden. The action must be con-
sidered in its historical context, to-wit: early 1966, before
the promulgation in desegregation cases of per se judicial
rules relating to faculty displacement. Thus viewed, this
Court finds that the “passing over” of plaintiffs in favor
of recruits from outside the District reflected the superin-
tendent’s good faith and non-racial judgment that plain-
tiffs were less qualified for the open positions than those
who were newly hired.
[24] (30) As noted previously, plaintiff Florence
Jones was a non-contract teacher employed on a substitute
basis. Although her teaching had not been formally as-
sessed by the methods applied to the contract teachers,
the superintendent had not been impressed by her per-
formance. She had not been placed on contract because
the superintendent believed that she lacked competence
and therefore did not merit contractual status. There is
no credible evidence suggesting that defendants’ failure
to continue the plaintiff as a substitute teacher was racially
motivated, and the Court finds that it was not so moti-
vated.
(31) On March 9, 1966, all plaintiffs except Florence
Jones were sent a letter over signature of superintendent
Miller informing them that they had not been recom-
mended for employment during 1966-67. The letter in-
cluded the following statement:
It is possible that you may be recommended and
eS a) Soe & 5 ee Se
is possibility is conditioned upon the available
positions within the district, your qualifications for
specific available positions, and your competence as
a teacher. You may schedule an appointment to
<
A-63
discuss this possibility with me personally at your
convenience.
(32) After receiving the superintendent’s letter, two
of the plaintiffs, Alice Jones and Yarbough Kennedy,
submitted formal letters of resignation without further
ado. These resignations were accepted forthwith, and
these two plaintiffs did not finish the school term. Plain-
tiffs Shelby, Woodard, Dotson, and John Jones requested
and received conferences with the superintendent. Plain-
tiffs Leviston and Florence Jones made no effort to
confer with the superintendent. Plaintiffs Harkless and
Jammer contemplated having conferences with the super-
intendent but were allegedly frustrated in this effort by
principal Gee. In the case of the latter two plaintiffs, it is
evident that neither tried with particular diligence to
have the conference. In any event, none of the plaintiffs
requested or demanded a Board hearing to reconsider the
non-renewal decision. Nor, prior to the filing of this suit,
did any plaintiff complain to the superintendent or to any
Board member that his non-renewal was racially moti-
vated or otherwise constitutionally impermissible.
(33) On May 23, 1966, the instant suit was filed and
the superintendent was personally served with process on
May 26, 1966. Prior to May 26, the reemployment of one
or more of plaintiffs had been a possibility, albeit a re-
mote one. Upon being served, the superintendent took
the view that to reemploy any of plaintiffs would preju-
dice defendants’ posture in the litigation. The possibility
of reemployment for any of these plaintiffs, already quite
small was thereupon made even more remote.
(34) Although a predominantly rural school district,
the District is one of the more affluent in Texas. Much of
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the prolific Old Ocean oil and gas field lies beneath the
District’s 154 square miles. This, with its attendant pro-
duction facilities and refineries, makes for an unusually
bountiful tax base. The District does not want for re
sources, and has traditionally paid among the highest
faculty salaries in the State. Prior to 1966-67, the physical
plants of four of the campuses, including the all-Negro
Carver campus, were approximately equal in quality.
The White senior high school was slightly superior to the
others in that its building was more modern. Therefore,
with respect to structural facilities, White students re-
ceived slightly better treatment than Negro students in
the upper three grades, but approximately equal treatment
in the lower nine grades. With respect to teaching tools,
such as machines, equipment, supplies and books, the
White and Negro students enjoyed equal treatment. The
monetary expenditure per pupil prior to desegregation
was approximately the same for Negroes as for Whites.
To the extent that a per capita variance existed, it favored
the Negro students because of the smaller size of some
secondary level classes at Carver.
Despite this substantial equivalence in tangible assets,
it is clear from this record that the quality of education
dispensed at Carver prior to desegregation was inferior
to that available in the White schools of the District.
The Carver children were educationally disadvantaged.
Superintendent Miller conceded that this was the case,
and quite plausibly attributed this disparity to the lower
quality of instruction available at Carver. Since desegre-
gation, and the incident changes in faculty, the scholastic
performance of the Negro children has improved sharply,
as revealed by locally-administered achievement tests.
This result is in part attributable to the immediate initia-
A-65
tion of an enrichment program, which is financed pri-
marily from the District’s funds but supplemented with
some federal assistance.
: The Court takes judicial notice that generally speak-
ing, the success of compensatory education programs has
been erratic but their effectiveness seems to vary directly
with the input of personnel, i.e., the quality and quantity
of teachers devoted to them. If this be true, it is reasonable
to attribute the success of the District’s remedial program
in large part to the competence of the faculty. Indeed,
it was the opinion of superintendent Miller that faculty
upgrading since unitization has been primarily responsible
for the generally improved academic performance of the
Negro children. The Court so finds. The Court further
finds that this faculty upgrading, both during 1966-67
and thereafter, was the result of an honest and good
faith effort on the part of defendants to employ the best
available teachers, without regard to race.
B. CONCLUSIONS OF LAW
(1) Advisory Jury.
[25] At the completion of the supplemental hearing,
defendants filed a motion urging the Court to consider
the 1969 verdict of the jury as advisory within the
meaning of Fed.R.Civ.P. 39(c). Such consideration is
purely discretionary. Liberty Mutual Insurance Company
v. Gerald, 170 F.2d 917 (Sth Cir. 1948); 5 Moore’s
Federal Practice 2d § 39.10(1). In view of the unusual
posture of the instant case, with the record containing
several days of testimony and numerous exhibits which
were not available to the jury, defendants’ motion must
be and is hereby denied.
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(2) The Burden of Proof.
[26] As noted in finding of fact (9), supra, the
District unitization was initiated voluntarily; neither the
District, its Board of Trustees, nor any individual member
of the Board were tainted by any history of resistance to
or evasion of responsibility with respect to desegregation.
When the time had clearly come, each defendant acted
promptly and in good faith to create and did create a
unitary system. Unlike so many school districts before it
and since, the defendant District in 1965 adopted, and
in 1966 implemented, a plan which worked, worked
realistically and worked then. Cf. Green v. County School
Bd., 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716
(1968). The Court therefore finds no basis in the record
for shifting the burden of proof to defendants. Cf. Bonner
v. Texas City Independent School District., 305 F.Supp.
600 (S. D. Tex. 1969).”
[27, 28] Accordingly, this case presents no occasion
for departure from the general rule that non-tenured
teachers alleging that they have been dismissed for consti-
tutionally impermissible reasons must bear the burden
of proving it. Glover v. Daniel, 434 F.2d 617 (Sth Cir.
1970); Sindermann v. Perry, 430 F.2d 939, 944 (Sth
Cir. 1970), affd, 408 U.S. 593, 92 S.Ct. 2513, 33
22. The Court’s decision, infra in the text, that plaintiffs have
completely failed to carry the customary burden of proof which any
plaintiff must shoulder makes it unnecessary for the Court to decide
whether plaintiffs’ burden of proof properly is the much heavier one
traditionally demanded of one seeking relief in the nature of man-
damus to compel official action. See generally 52 Am. Jur. 2d Man-
damus § 242 (1970) (re reinstatement of teachers, employees and
administrators of schools); 52 Am. Jur. 2d Mandamus § 466 (re
burden of proof); United States ex rel. Girard Trust Co. v. Helvering,
301 U.S. 540, 57 S.Ct. 855, 81 L.Ed. 1272 (1936).
A-67
L.Ed.2d 570 (1972); Smith v. Losee, 485 F.2d 334
(10th Cir. 1973), cert. denied, 417 U.S. 908, 94 S.Ct.
2604, L.Ed.2d 212 (1974). However, it is appropriate
to observe that the assignment of the burden is not deter-
minative of the result in this instance. For, even if the
burden were shifted, this Court is persuaded that the
defendants have shown by clear and convincing proof
that the non-renewal of plaintiffs’ contracts was not
unlawfully discriminatory. Cf. Moore v. Bd. of Educ.
of Chidester School Dist., 448 F.2d 709 (8th Cir. 1971).
(3) The Filing of the Suit.
[29] Plaintiffs contend that they are entitled to prevail
because the filing of this suit had the effect of cementing
the superintendent’s pre-existing resolve not to re-employ
them. As an abstract proposition, it is undoubtedly correct
that one may not be subjected to a deprivation solely
for attempting to judicially vindicate his constitutional
rights. However, deprivation implies an interest, and it
becomes necessary to inquire whether plaintiffs enjoyed
an interest of which they were deprived.
[30] When suit was filed, the decision not to renew
plaintiffs’ contracts in due course had already been made,
and was supported by sound and sufficient reasons un-
related to the lawsuit. In any real sense, plaintiffs had
already lost their jobs for 1966-67. The Board had already
declined to renew their contracts at the March meeting
when teaching contracts are normally renewed, and had
merely noted that those who were not re-employed
might “possibly” be considered at a later meeting. See
findings of fact (27) and (31), supra. Therefore, the
filing of the suit clearly did not deprive plaintiffs of their
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jobs. At most, the filing of the suit may have contributed
to removing one or more of them from a hypothetical
pool of possible employees, in which their status was al-
ready tenuous at best. At trial, the Court entertained
considerable doubt whether a remote possibility of re-
employment is a legally protected interest. The Supreme
Court of the United States has since held that it is not.
Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33
L.Ed.2d 570 (1972). Thus, even if the filing of their
suit caused plaintiffs to be injured, the deprivation was de
minimis in nature and not legally cognizable.
(4) Procedural Due Process.
[31] By amendment of the complaint, plaintiffs assert
that the means by which their non-renewal was effected
violated the procedural due process guarantee of the
Federal Constitution. But it is well to remember that
due process does not in every instance require a govern-
mental entity to convene a trial-type hearing and honor
other judicial traditions before discharging an employee.
Cafeteria & Restaurant Workers’ Union Local 473, AFL-
CIO v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d
1230 (1961). Likewise, unlimited process need not be
afforded in all situations where a teacher is dismissed.
Lucas v. Chapman, 430 F.2d 945, 947 (Sth Cir. 1970).
Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701,
33 L.Ed.2d 548 (1972) significantly delineated the
boundaries of due process in the school setting. Roth
teaches that the full requirements of procedural due pro-
cess do not generally apply to the non-renewal of a state-
employed teacher’s contract. But rather, the safeguards
of complete process are applicable only to the deprivation
of interests encompassed by the Fourteenth Amendment
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protections of “liberty” and “property”. Stated differently,
if loss of employment is accompanied by loss of liberty,
the right to complete process would unquestionably ac-
crue. And, if an individual can demonstrate a property
right in continued employment, he or she is entitled to
some form of prior administrative or academic hearing
on the cause of such non-reemployment.
[32, 33] In the school context, loss of liberty applies
if and only if the school board in declining to hire a
teacher, makes some charge against him or her that might
seriously jeopardize or impair his or her standing, reputa-
tion, and associations in the community. Roth, supra,
408 U.S. at 572, 92 S.Ct. 2701. See also: Wisconsin v.
Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27
-L.Ed.2d 515 (1971). Plaintiffs here have demonstrated
no action on the part of any defendant which might harm
their reputations or interfere with the pursuit of their
careers except the non-renewal itself. Kota v. Little, 473
F.2d 1 (4th Cir. 1973). In short, there is no reference
or suggestion in the present record that any defendant
levied any charge of moral corruption or disseminated any
damaging rumor or gossip concerning plaintiffs.
[34-36] In addition, plaintiffs have failed to substanti-
ate a claim of a legally protected “property” interest.
Lewis v. Spencer, 468 F.2d 553 (Sth Cir. 1972). In
the academic setting, if a teacher has tenure, either con-
tractual or de facto, then he or she possesses a legal
proprietary interest. Perry v. Sindermann, 408 U.S. 593,
92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Plaintiffs, how-
ever, along with all classroom teachers in the District,
were employed on the basis of a year to year contract,
and therefore, lacked contractual tenure. Despite lack
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of tenure, plaintiffs, with the exception of Florence Jones,
did enjoy a subjective expectancy of annual reemploy-
ment. Ferguson v. Thomas, 430 F.2d 852 (Sth Cir.
1970). However, a mere unilateral expectancy of contin-
ued employment does not in and of itself necessitate a
hearing. Perry v. Sindermann, supra, 408 U.S. at 603,
92 S.Ct. at 2694. Zimmerer v. Spencer, 485 F.2d 176
(5th Cir. 1973). Plaintiffs did not ever assert that they
had a legitimate claim or entitlement to job tenure.
Neither did they allege the existence of any rules or
mutually explicit understandings promulgated or fostered
by the State or District or any other basis which would
support a claim of entitlement to continued employment.
Therefore, they cannot now be heard to complain of lack
of process. Moore v. Knowles, 482 F.2d 1069 (Sth Cir.
1973). The failure to hold hearings on each non-renewal
did not amount to a procedural deprivation.
[37, 38] A school district should be entirely free to
refuse to reemploy a non-tenured teacher so long as any
dismissal of that teacher is not based upon constitution-
ally impermissible grounds. This Court is, and always
has been, firmly of the opinion that a school board should
be entirely unfettered to discharge any teacher without
tenure which it considers to be unfit to teach the pupils.
Bonner v. Texas City Ind. School Dist., 305 F.Supp. 600
(S.D.Tex. 1969). Due process only contemplates that an
individual be given an opportunity for a hearing before
he is deprived of any significant “property” interest.
Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.
2d 556 (1972). Thus, it is not incumbent upon a school
board to hold a hearing every time it determines not to
renew the contract of a probationary teacher. Thaw v.
CR a «
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Bd. of Pub. Instruction, 432 F.2d 98 (5th Cir. 1970).
This is especially true when the termination of an em-
ployee is for ostensibly non-constitutional reasons and
where the affected employee neither challenges the au-
thenticity of these reasons nor requests a hearing.
The law of the Circuit on this point is concisely stated
in Lucas v. Chapman, 430 F.2d 945 (5th Cir. 1970),
a teacher contract non-renewal case involving freedom
of speech:
Our holding should not be misunderstood. In this
instance we know from the District Court hearing
that the asserted reason for termination involved a
possible collision with Lucas’ First Amendment
rights. A hearing was mandatory, if desired by Lucas.
But where the only matter in issue is a difference
of view over a school board’s exercise of judgment
and discretion concerning matters non-constitutional
in nature, the board is not required to conduct a
hearing. . . . There are in-between situations which
are somewhat more difficult. 1f the board asserts a
non-constitutional reason and the teacher claims it
is a sham and that the real reason is one impinging
on his constitutional rights, he must be afforded
a hearing. Also, even in the area of non-constitutional
reasons, the board’s decision must not be wholly
unsupported by evidence else it would be so arbi-
as to be a constitutional violation. Lucas, supra;
430 F.2d at 947 (citations omitted; emphasis added).
[39] In the instant case, the non-renewal was purport-
edly and in fact based upon the non-constitutional reason
of professional inadequacy, a determination which was
neither arbitrary nor unsupported by evidence. Further-
more, prior to the filing of their lawsuit, plaintiffs did not
attach this purported reason as a sham nor did they re-
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quest a hearing before the Board. Accordingly, the pro-
cedure followed by the Board did not deny plaintiffs
due process of law.”
(5) Racial Discrimination
As developed at length in the findings above, the de-
cision not to renew plaintiffs’ contracts was made on the
basis of evaluation procedures which, although subjected
at trial to intensive theoretical criticism, proved to be
consistent with common practice and to enjoy con-
siderable recognition and support in the literature. Grant-
ing the school officials the wide latitude to which they are
entitled in employment decisions, Brooks v. School Dist.,
267 F.2d 733 (8th Cir.), cert. denied, 361 U.S. 894,
80 S.Ct. 196, 4 L.Ed.2d 151 (1959), and mindful that
the Constitution does not mandate any particular method
or philosophy of public school personnel evaluation, the
Court concludes that the evaluation technique employed
in the District was valid and legally unobjectionable.
[40] Although the Constitution expresses no prefer-
ence among the various methods of teacher evaluation, in
the context of school desegregation it does require that
evaluations incident to the desegregation process be
undertaken on a District-wide basis, whereby all teachers,
black and white, are evenhandedly weighed against those
23. The Court notes that the proper remedy for a procedural
deprivation is remand to the school Board for compliance with
minimum due process. Perry v. Sindermann, 408 U.S. 593, 693,
92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Plaintiffs have not sought
this form of relief at any stage of this litigation.
The Court also notes that the recent em banc decision by the
Court of Appeals for this Circuit, Sims v. Fox, 505 F.2d 857 (Sth
Cir., 1974), both in its majority and dissenting opinions, affixms the
principles stated in the text.
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similarly qualified for each available position. The Court
of Appeals for the Fifth Circuit has stated the rule as
follows:
If, as a result of desegregation, there is to be a reduc-
tion in the total professional staff of the school
system, the qualifications of all staff members in
the system shall be evaluated in selecting the staff
yo to be released without consideration of race
or color.
United States v. Jefferson County Bd. of Educ., 372 F.2d
836, 900 (Sth Cir. 1966) (opinion by Wisdom, C. J.),
aff'd and modified en banc 380 F.2d 385 (5th Cir), cert.
denied, 389 U.S. 840, 88 S.Ct. 77, 19 L.Ed.2d 104
(1967). Here, the District comprises the school system.
See also: North Carolina Teachers Ass’n v. Asheboro
City Bd. of Educ., 393 F.2d 736 (4th Cir. 1968);
Williams v. Kimbrough, 295 F.Supp. 578 (W.D.La.)
aff'd, 415 F.2d 874 (Sth Cir. 1969), cert. denied, 396
U.S. 1061, 90 S.Ct. 753, 24 L.Ed.2d 755 (1970).
For the purpose of structuring the relevant comparison
groups, superintendent Miller emphasized the grade/
subject-matter presently being taught by each compared
teacher rather than state certifications, semester hours of
training, or major subject. For the reasons stated in find-
ing of fact (19), supra, this frame of reference for con-
ducting the necessary comparisons was rational and ap-
propriate, and there is no reason te suspect that it was
less racially neutral than any other approach which might
have been chosen. On this basis, the comparison was made
as to each similar-situated incumbent teacher in the Dis-
trict without regard to race or color. It was therefore
constitutionally sound. Jefferson County, supra.
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Although criticising it from a technical viewpoint,
which really amounted to no more than presentation of a
professional difference of opinion, plaintiffs offered no
persuasive evidence that the District’s evaluation methods
were racially discriminatory. Instead, it was primarily con-
tended that the methods lacked “objectivity”. Although the
Court has found to the contrary, even if the District's
methods were lacking in complete objectivity, this would
not in and of itself entitle plaintiffs to relief, for the
elusive goal of objectivity in the literal sense is unobtain-
able as a practical matter and is therefore not required
as a matter of law. Dr. Reutter conceded that complete
objectivity in the literal sense is unobtainable as a prac-
tical matter and is therefore not required as a matter of
law. Dr. Reutter conceded that complete objectivity in
personnel evaluation is impossible, and pointed out that
the procedural refinements which he recommended were
merely designed to minimize the inherent subjectivity of
the process. The Courts have also recognized that the
decision to hire, rehire or fire an employee is to a large
degree a subjective determination. As the Court of Ap-
peals for this Circuit once stated in a teacher dismissal
case, “. . . there are an enormous number of fact situ-
ations in which the nonreappointment of an employee
may be justified by highly subjective and perhaps unfore-
seeable considerations.” Fluker v. Alabama State Bd. of
Educ., 441 F.2d 201, 207 (Sth Cir. 1971). Cf. Pickering
v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d
811 (1968); Thaw v. Bd. of Pub. Instruction, supra; Bu-
ford v. Morganton City Bd. of Educ., 244 F.Supp. 437
(W.D.N.C. 1965).
Implicit in plaintiffs’ position is the contention that the
only objective manner in which defendants could have
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evaluated the teachers would have been to limit the
inquiry to such mechanically measurable qualifications
as state certification, semester hours of subject-matter
preparation, years of experience, and years in the District.
For the reasons stated in finding of fact (26), supra,
this approach might have lent to the process an aura
of objectivity because it purports to employ quantifiable
data, but it would have been useless and utterly invalid
as a means of personnel evaluation. For, as one court
has observed:
Teaching is an art; and while skill in its practice can
not be acquired without knowledge and experience,
excellence does not depend upon these two factors
alone. The processes of education involve leadership,
and the success of the teacher depends not alone
upon college degrees and length of service but also
upon aptitude and the ability to excite interest and
to arouse enthusiasm. The superintendent is justified
in believing that many people with college degrees
can not teach school, whether white or colored.
Morris v. Williams, 149 F.2d 703, 708 (8th Cir. 1945).
Individual factors, such as personality, disposition, indus-
try and adaptability vitally affect the work of any teacher.
Again, it has been said that “[flitness for teaching rests
upon a broad range of factors and encompasses numerous
personality and character traits.” Smith v. Bd. of Educ.,
365 F.2d 770, 781-782 (8th Cir. 1966). Cf. Beilan v.
Bd. of Pub. Educ., 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.
2d 1414 (1958). The methods of evaluation used by
the District's evaluators, individually and collectively,
focused the superintendent’s recommendation and the
Board’s ultimate decision with respect to each plaintiff's
fitness for teaching on such a “broad range of factors”
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which encompassed “numerous personality and character
traits”.
Neither the courts nor the Constitution demand the
impossible of school administrators. Therefore, when the
courts in desegregation cases have spoken of “objective
criteria” in the selection of staff members to be dismissed
or demoted, cf. Singleton v. Jackson Municipal Separate
School Dist., 419 F.2d 1211 (Sth Cir. 1969), cert. denied,
396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 530 (1970),
it is obvious that they are not requiring some heretofore
unattainable ideal, as plaintiffs seem to urge. Rather,
taken within the context of the problem, desegregation
courts have used the word “objective” to mean non-
capricious, non-arbitrary, and racially non-discriminatory,
In this careful sense of the word, the District’s evaluation
process was clearly objective, in that it was developed
and administered free of bad faith, improper motives or
racial implications. In any broader sense of the word,
the District’s evaluation was only as objective as personnel
evaluations conducted by mortals are ever apt to be.
[41] Accordingly, the Court concludes that the method
of evaluation and comparison employed by the District
in the spring of 1966 was honestly and fairly conducted
by qualified professionals acting in a professional way,
who were not influenced by impermissible racial con-
siderations. The procedure therefore was consonant with
constitutional standards. Smith v. Bd. of Pub. Instruction,
438 F.2d 1209 (Sth Cir.), cert. denied, 404 u.S. 865,
92 S.Ct. 61, 30 L.Ed.2d 108 (1971).
[42] To conclude that impermissible racial considera-
tions were not employed is obviously not to say that all
factors tangentially related to race were studiously ignored.
oe
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There is evidence that superintendent Miller held the view
that formerly all-Negro colleges in Texas have offered
a relatively inferior education to teachers, until recent
years. But it is important to consider Miller’s testimony
in this regard in proper context. He offered this fact in
explanation of plaintiff's lower ranking in the evaluation
process, as a result of which lower ranking they were
not rehired. Assuming superintendent Miller’s opinion and
explanation to be correct, it would not follow that Miller’s
decision was racially infected and therefore, plaintiffs
should have been rehired. Miller’s explication which re-
cited the well-known fact of formerly relative inferiority
of education for teachers in the formerly all-Negro col-
leges in Texas, would not evidence racial bias on his
part in reaching his conclusion not to recommend re-
hiring of any plaintiff.
Both the Congress and the Courts have recognized the
unfortunate but indisputable fact that Negroes have long
received inferior education in segregated schools such as
the institutions at which these plaintiffs received the
balance of their preparation for teaching careers. Griggs
v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849,
28 L.Ed.2d 158 (1971); Gaston County v. United States,
395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969).
This is a fact of life which the superintendent was entitled
to consider in explaining the lower ranking of plaintiffs.
In scrutinizing Miller’s actions, the law does not require
this Court to be blind to the same fact. Therefore, the
Court concludes that the fact Miller held this opinion
with respect to the quality of higher education available
to plaintiffs and that such may have or probably did
explain their lower ranking in the evaluation process,
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did not specially taint his decision and did not make his
decision constitutionally defective.
Nor, for the same reasons, was it per se unlawful for
the superintendent to take cognizance of curriculum di-
rector New’s infelicitously phrased anecdotal memorandum
if indeed the memorandum was considered. For, in assess-
ing teacher competence, such matters as language usage
and enunciation do not automatically become irrelevant
simply because they may be to some extent racially re-
lated. To the contrary, it may well be that it is incumbent
upon an administrator for supervising desegregation to
consider aspects such as language facility and educational
deprivation which may be related to race—not because
of the innate capacity of a given race, but because of the
environmental, political, economic and educational dis-
crimination to which that race has historically been sub-
jected. That certain faculty members should be thus
victimized by the desegregation process because of his-
torical factors beyond their control is a sad and regret-
table hardship. It is also a hardship suffered in a sense
as a result of plaintiffs’ race, which will be explained.
However, in extirpating this legacy of injustice, hardship
and sacrifice have been demanded of all citizens. The
very essence of Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554
(1971), is that hardship can and will be imposed on
a color-conscious racial basis if that is necessary to achieve
the great promise of Brown v. Bd. of Educ., 347 U.S.
483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Upgrading
the quality of education available to all races in the
District would indeed be ill served if such hardship im-
posed on a few teachers should be held to transcend the
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rights of the greater number of secondary school students
envisioned by Brown and its progeny.
The pivotal finding of Brown was that where a State
has undertaken to provide an opportunity for an educa-
tion in its public schools, such opportunity is a right
which must be made available on equal terms; and that
segregation of children in public schools solely on the
basis of race deprives children of the minority group of
equal educational opportunities, thus denying to them
equal protection of the laws. To redress this denial, state-
imposed segregation in the schools was outlawed, and
the hoped-for remedial corollary of this undertaking was
that unitization cf the schools would result not only in
equal educational opportunity for children of all races,
but an education for Negro children which was superior
to that previously made available in segregated facilities.
Uncontroverted evidence in the instant record shows
that the requirements clearly have been met by the Dis-
trict. Not only in its mechanical but also in its qualitative
aspects, desegregation has been achieved. Having been
afforded for the first time an opportunity to study in an
integrated atmosphere under competent teachers of both
races, and having received the benefit of enrichment pro-
grams voluntarily instituted by the District, the Negro
students’ academic achievement level has demonstrably
improved since 1966. The superintendent testified that
this dramatic change was due in large part to upgrading
of the District’s faculty as an incident of desegregation.
There is no evidence in the record to the contrary. The
Court accepts this observation as true.
In the District, a microcosm of secondary education,
there is empirical proof that desegregation was not only
A-80
constitutionally imperative, but was also pedagogically
sound. Unwittingly perhaps, plaintiffs would have the
Court nullify or seriously abridge this beneficial result.
As a practical matter, plaintiffs would impose absolutist
and iron-clad constraints upon the discretion of school
administrators in replacing less qualified Negro faculty
members during the process of desegregation.
The displacement of persons from employment, as an
incident of social change, is certainly not a new phenome-
non, but the hardship incurred by reason of such dis-
placement is properly a subject for legislative redress.
The point has often been made, and rightly so, that some
educational authorities in the past may have deemed
Negro teachers “good” enough to teach in Negro schools
but not “good” enough to teach in desegregated schools.
However, in correcting the residual effects of this wrong-
headed policy, the Court must not take a punitive ap-
proach which may remedy personal hardships visited upon
some Negro teachers, but does so at the expense of
academic excellence or academic opportunity in the public
school system, which here is the District.
Although perhaps achieving the goal of career protec-
tion for certain Negro teachers, the unacceptable price
would be to retreat from Brown’s promise of improved
educational opportunity for Negro students. To construct
a sort of judicially-imposed “tenure” for Negro teachers,
in effect guaranteeing them an impregnable position in
the classroom from the time of unitization until their
retirement, may be appealing from a short-term humani-
tarian viewpoint, but it is fundamentally at war with
the noble purposes of Brown. This Court will not lend
a hand to it. Accordingly, the Court concludes that
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superintendent Miller was entitled to consider factors
relevant to teaching competence. Miller was entitled to
include among such factors the prior inferior educational
opportunities available to teachers of the Negro race
for the purpose of identifying and employing the most
competent available teaching staff. The discrimination, if
any, suffered by plaintiffs occurred long before Miller
evaluated them in 1966 by virtue of the inferior quality
of education afforded them by the State. Such past dis-
crimination, if any, could not properly be erased by
Miller in his evaluation or by a judicial declaration of
this Court. Chicot County Drainage Dist. v. Baxter State
Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329
(1940). It is lawful for defendants to distinguish and
choose between good, poor and bad teachers, as was
clearly done in this case. Discrimination on the basis
of teaching competence is constitutionally permissible. In
the case of the District, the fact that such racially neutral
discrimination resulted in a greater attrition of Negroes
than Whites is unfortunate and regrettable, but it does
not render the result unconstitutional.
(6) The Teachers and the Effect of Singleton.
[43] It has been suggested that the non-renewal of
plaintiffs’ contracts, coupled with the hiring of White
teachers from outside the District is violative of the
guidelines enunciated in Singleton v. Jackson Municipal
Separate School Dist., 419 F.2d 1211 (Sth Cir. 1969),
cert. denied 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d
530 (1970). The decree in Singleton, which has since
been accorded a sort of quasi-statutory generic effect,
provided that no vacancy arising by reason of the dis-
missal or demotion of a Negro teacher might be filled
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by recruitment of a White teacher from outside the system
“until each displaced staff member who is qualified has
had an opportunity to fill the vacancy and has failed
to accept an offer to do so.” Singleton, supra, 419 F.2d
at 1218. In effect, this rule has been construed to create
a form of tenure. The salutary proviso embodied in the
words “who is qualified” has been virtually nullified by
reading the phrase to mean minimally qualified, and by
raising a legal presumption that one who served on a
pre-desegregation faculty is ipso facto deemed to be
minimally qualified to serve on a post-desegregation fac-
ulty. See Lee v. Macon County Bd. of Educ., 453 F.2d
1104 (Sth Cir. 1971).
Defendants in the instant case were not bound to
comply with Singleton. Singleton and its progeny have
been decided in the context of desegregation orders and
the inflexible prophylactic nature of their decrees is at-
tributable in part to the inference of bad faith which
may arise when a school district must be judicially
dragooned into desegregation. Unlike Singleton, plaintiffs’
dismissals cannot be traced to a court-ordered school
consolidation in furtherance of desegregation. Rather, at
every juncture, the District acted promptly, prudently
and voluntarily to unitize its public school system. Fur-
thermore, the Court of Appeals for the Fifth Circuit has
held that the per se aspects of the Singleton decree are not
amenable to retroactive application. Lee v. Macon County
Bd. of Educ., supra. In Lee, the Court explicitly stated:
The specific per se cast of Singleton is more pro-
cedural than substantive in its protection of the
Fourteenth Amendment rights of principals and
teachers affected by desegregation orders, even
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though the substantive thrust of Singleton is clearly
an exposition of pre-Singleton law. Singleton’s novel-
ty is procedural in the very sense of that per se pitch,
for, if the facts of a case fall within the ambit of
Singleton, the board is given no authority to explain
its failure to reinstate. . . . But we must take cog-
nizance of the fact that some school districts could
conceivably have passed over, demoted or dismissed
applicants of one race in order to hire applicants of
another race whom the board, in good faith and
without racial discrimination, considered “more
qualified” than the earlier principals or teachers.
That possibility is “. . . an operative fact and may
have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial
declaration.” Chicot County Drainage Dist. v. Baxter
State Bank, 1940, 308 U.S. 371, 374, 60 S.Ct. 317,
84 L.Ed. 329.
453 F.2d at 1113 (emphasis added). But see: Sparks v.
Griffin, 460 F.2d 433, 441 (Sth Cir. 1972).
Since the employment decisions of which plaintiffs
complain were made almost four years prior to Singleton,
and prior even to Jefferson, it follows that defendants
cannot be held to Singleton’s rigid standard. Instead, as
is clear from the emphasized language quoted above in
Lee, the inquiry with respect to the District is limited to
the pre-Singleton substantive question of whether de-
fendants in good faith and without racial discrimination
concluded that the newly-hired teachers were more quali-
fied than plaintiffs for the positions. As is clear from the
findings of fact, that question has been answered in the
affirmative.
ee
A-84
In short, plaintiffs’ dismissals were based upon non-
discriminatory standards applied in a non-discriminatory
manner. Therefore, the Court finds and concludes that
race played no part, directly or remotely, in the Board’s
determination not to continue plaintiffs’ services.
To the extent that any of the foregoing findings of
fact constitute conclusions of law, they are adopted as
such. To the extent that any of the foregoing conclusions
of law constitute findings of fact, they are adopted as
such.
The Clerk shall file this memorandum opinion and
send a copy to all counsel.
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