Petition — MacDonald v. Ferguson Reorganized School District R-2

Supreme Court brief1983

Ask Donna

What actually matters in this document.

Text

| Ottice Supreme Court, U.S.

FILED

83-448

IN THE SEP 13 i983

ALEXANDER L STEvas, ;

SUPREME COURT OF THE UNITED |STATESicex {

—

OCTOBER TERM, 1983

¢ ANN MACDONALD and

CARL JASON,

Petitioners

FERGUSON REORGANIZED

SCHOOL DISTRICT R-2 and

BOARD OF EDUCATION MEMBERS,

DR. RAY HOWELL;

JOSEPH WELLS;

DALLAS IMBEAUX;

CAROL BARNES;

JAMES POOR;

EDWARD W. WILHELMS,

Respondents

. 2 3

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

et ee

JAMES E. TERRY, and

DONALD L. McCULLIN

4054 Lindell Blvd.

St. Louis, MO 63108

(314) 534-4400

Attorneys for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ANN MACDONALD and

CARL JASON,

Petitioners

Vv.

FERGUSON REORGANIZED

SCHOOL DISTRICT R-2 and

BOARD OF EDUCATION MEMBERS,

DR. RAY HOWELL;

JOSEPH WELLS;

DALLAS IMBEAUZ;

CAROL BARNES;

JAMES POOR;

EDWARD W. WILHELMS,

Respondents

x *«

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

eo 2 9

JAMES E. TERRY, and

DONALD L. McCULLIN

4054 Lindell Blvd.

St. Louis, MO 63108

(314) 534-4400

Attorneys for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ANN MACDONALD and

CARL JASON,

Petitioners

FERGUSON REORGANIZED

SCHOOL DISTRICT R-2 and

BOARD OF EDUCATION MEMBERS,

Respondents

xk * &*

Petitioners, Ann MacDonald and Carl

Jason, respectfully pray that a writ of

certiorari issue to review the judgment

and opinion of the United States Court of

Appeals for the Eighth Circuit entered on

February 16, 1983 with rehearing en banc

granted on March 25, 1983, and affirmed on

June 15, 1983 by an equally divided court.

ofe

QUESTIONS PRESENTED

I. Whether the District Court was

correct in taking into account the rela-

tive size and sophistication of two school

districts, one all-black and impoverished,

the other white and relatively wealthy,

when it assesses the skill and responsi-

bility level of those in the all-black

district, when the effect of that compari-

son is to deny them safeguards instituted

to protect their rights in the merger and

perpetuate the vestiges of segregation.

II. Whether the District Court was

correct in using a rigid approach in de-

termining the existence of a prima facie

case, and applying the standard for rebut-

tal in cases involving school districts

having a long history of desegregation.

atta

TABLE OF CONTENTS

QUESTIONS PRESENTED ........2ceeee-

TABLE OF AUTHORITIES ........eee08.

OPINION BELOW ...cccsvccccccccccces

DURELSWLGCELON secccccccccceccsccsces

STATUTE INVOLVED .....ccecevecceces

STATEMENT OF THE CASE .......cesees

REASONS FOR GRANTING THE WRIT .....

CONCLUSION .ncccccccccccccccccccese

CERTIFICATE OF SERVICE .....seeeees

PROOP OF MAILING ..ccccccccccscsvece

APPENDIX ...cccccccccccses ccccccces

APPENDIX ~ TABLE OF CONTENTS ......

-iii-

TABLE OF AUTHORITIES

PAGE

Brown v. Bd. of Education,

ye SNe ll

Keyes v School District No. l,

Denver Ccolo.,

% % bo ) eer 12

McDonnell Douglas Corp. v. Green,

i = ge os : 7 apqrpetees 14

Moore v. Board of Education of

ester Schoo istrict

No. 59, Ark.,

ZL8 F.2d 709 (8th Cir. 1971) ... 12

Singleton v. Jackson Municipal

a arate School District,

its F.2d 1211 (oth cir. 1970) .. 3,9

Swann v. Charlotte-Mecklenburg

Bd. of Education,

owe a Se ee ll

Texas Department of Community

Attairs Vv. bBurdine,

450 U.S. 248 (1981)

igidvnceens 14

United States v. State of

Missouri,

-supp. 739

ts ee esp eaehedec.eé sede 2

aR Te

OPINION BELOW

The order of the Court of Appeals en

banc is reported at 711 F.2d 80 (8 Cir.

1983). The opinion rendered on February

16, 1983 is unreported. The opinion along

with the order granting Petitioner's Peti-

tion for Rehearing the order of the court

en banc affirming the District Court by an

equally divided court, and the Judgment of

the District Court are attached as Appen-

dices hereto. Also attached is the deci-

sion of the District Court which was ap-

pealed by the Petitioners to the Court of

Appeals, and reported at 530 F.Supp. 469

(E.D. Mo. 1981).

JURISDICTION

The opinion of the Court of Appeals

was entered on February 16, 1983. A time-

ly petition for rehearing with a sugges-

tion that the rehearing be en banc was

granted on March 25, 1983, and the judg-

ment of the district court was affirmed on

ate

June 15, 1983. This Court's jurisdiction

is invoked under 28 U.S.C. §1254(1).

STATUTE INVOLVED

The statute involved is 42 U.S.C.

§1981.

STATEMENT OF THE CASE

Plaintiffs Ann MacDonald and Carl

Jason were formerly principals in the all-

black Kinloch School District at Kennedy

Jr. High, and Kinloch High School, respec-

tively. Carl Jason held a life principal

certificate and a superintendency certifi-

cate issued by the Department of Education

of Missouri. (TR. 16). Ann MacDonald

held a life certificate in administration

issued by the State Department of Educa-

tion and entitling her to be principal of

any high school in the state of Missouri.

(TR. 130) Pursuant to a finding of unlaw-

ful discrimination in the case of United

States vs. State of Missouri, 363 F.Supp.

739 (E.D. Mo. 1973), the district court

ordered the annexation of the Berkeley and

Kinloch School Districts, by the Ferguson-

Florisrant District, and ordered the

merged district to follow the guidelines

established in the Fifth Circuit Decision

of Singleton vs. Jackson Municipal Sep-

arate School District, 419 F.2d 1211 (5th

Cir. 1970).

As a result of the merger, Kinloch

High School and Kennedy Jr. High were

closed, and plaintiffs' were without

schools. Instead of comparing their qual-

ifications with those of the remaining

principals at the secondary level, plain-

tiffs were reassigned as assistant princi-

pals. Ann MacDonald was reassigned to

Berkeley Junior High School. Carl Jason

was reassigned to McCluer North Senior

High School. As a result of the reassign-

ments, there were, and still are no black

principals in the Ferguson Reorganized

School District R-2. (TR. 464).

Sometime prior to July 3, 1977, the

positions of principal at McCluer High,

Ferguson Junior High, and Cross Keys

Junior High became open. According to the

Singleton Guidelines, if a staff member is

demoted, the staff member must be selected

on the basis of objective and reasonable

non-discriminatory standards among all the

staff of the school district. Demotion

included any "reassignment (1) under which

the staff member receives less pay or has

less responsibility than under the assign-

ment he held previously, (2) which re-

quires a lesser degree of skill than the

assignment he held previously." This

criteria was to be used until a unitary

System was established and operated as

such for many years. The factor present

before implementation of Singleton was a

reduction in the number of professional

staff. (TR. 9-13)

When the principalships became open,

the school district took the position that

plaintiffs had not been demoted, and the

school system had become unitary. The

district further interpreted their af-

firmative action guidelines as not requir-

ing them to actively seek black princi-

pals. (TR. 465)

At the time petitioner Jason was

principal in the Kinloch School District,

the high school enrollment was 262 stu-

dents with 22 teachers. At McCluer North

where Jason was assistant principal, stu-

dent enrollment was 2,407, with 119 teach-

ers. The administrative staff was one

principal and four assistant principals.

Jason had supervisory responsibility for

the eleventh grade. McCluer had fifteen

departments.

As principal of Kinloch, Jason was

responsible for planning and scheduling

for all students; supervision, planning

and coordination of extra-curricular ac-

tivities; coordination of public rela-

tions; and evaluation of teachers. At

McCluer Jason's responsibilities include

taking care of lockers, assigning locker

room stickers, watching the lunchroom

area, counseling at least twenty students,

and coordinating commencement exercises.

At the time petitioner Ann MacDonald

was principal at Kennedy Junior High,

there were 170 pupils and ten teachers.

At Berkeley as assistant principal, the

student enrollment was 1,007 and the num-

ber of teachers was 71. The administra-

tive staff consisted of one principal and

two assistant principals. At Berkeley she

has supervisory responsibility for 500

students and 35 teachers. She chairs a

number of departments. She is in charge

of discipline for the entire school.

At Kennedy, petitioner MacDonald was

in charge of budgeting, personnel supervi-

a A

sion and evaluation, building maintenance

and supervision, discipline and general

hiring and dismissals of staff and teach-

ers. Kennedy had no gymnasium, no cafe-

teria or library, and was housed in a very

small building. At Berkeley she evaluates

half the professional staff, supervises

the field trip budget, and makes recommen-

dations to the principal concerning cur-

riculun.

The school district decided to use a

selection committee to fill the positions.

The members of the selection committee

were determined by Mr. Prokop, and Mr.

Koch, both white assistant superinten-

dents. The committee consisted of six

members. Two of the members were black,

and the others white. The candidates were

tated on a scale of 1-10 in the areas of

leadership presence, use of language, com-

munication skills, professional training,

human relations training and ability,

ais

experience relevant to position, ability

to absorb and disseminate material, plan-

ning ability, judgmental ability, manage-

ment ability, financial and budgeting

skills, and evaluation knowledge and ex-

perience. The interview took approximate-

ly one-half hour. A candidate came in,

gave his educational qualifications, and

he was rated. When he was rated the con-

mittee was unaware of the qualifications

of the other candidates, but ranked them

on a scale of one toten. (TR. 314, 316)

Many of the members had little contact

with the candidates. (TR. 318)

The selection committee recommended

and the board approved Wayne Fields, Daryl

Hall, and Carl Swaringim, all white, to

fill the positions. Plaintiffs wrote the

Superintendent expressing their concern

the Singleton guidelines had been ignored,

and on July 26, 1978, they filed suit in

the United States District Court for the

Eastern District of Missouri alleging

discrimination in the area of promotion

because of race in violation of 42 U.S.C.

§1981.

REASONS FOR GRANTING THE WRIT

The District Court found that the

school system was not "unitary" within the

meaning of that term in Singleton v.

Jackson Municipal Separate School Dis-

trict, 419 F.2d 1211 (5th Cir. 1970), and

therefore the Singleton Guidelines apply.

Although respondents argued the court en

banc that the school system was unitary,

it was not an issue raised on appeal, and

is not proper for consideration.

The court in attempting to apply

Singleton and determine whether petition-

ers had been demoted, focused on the rela-

tive sizes and sophistication of the two

districts. Although noting that the

touchstone was whether a reduction in

witie

responsibility occurred. The court conm-

pared the number of students supervised,

the ratings of the schools, and drew a

conclusion that a much higher level of

responsibility was demanded by a AAA

school as opposed to a AA school. The

court went on to say "the principalship of

a large, sophisticated integrated high

school attended by older students of both

races in their last years in public educa-

tion who may take courses in over fifteen

departments taught by a diversified, high-

ly qualified bi-racial faculty, may not be

fairly regarded as a demotion."" Although

the court used the term 'principalship,'

it must be assumed it meant ‘assistant

principalship'. This was the court's

principal rationale for determining that

petitioner Carl Jason's responsibility

level had not changed. Petitioners in

efect were being penalized for being a

part of the inferior quality schools the

otis

Tespondents had helped to perpetuate.

With respect to petitioner Ann

MacDonald the court concludes that 'plain-

tiff may have been a big frog in a little

puddle while at Kennedy, and a little frog

in a big puddle at Berkeley, but she

shared equal responsibility at both jobs.

By taking into account the relative

size and sophistication of the school

districts, respondents are allowed to

perpetuate the vestiges of state-imposed

segregation. This Court determined in

Brown v. Bd. of Education, 347 U.S. 483

(1954), that separate schools are inher-

ently unequal. In fact, it would be rare

to make such a comparison, and find the

predominantly white ditrict smaller and/or

less sophisticated. This is contrary to

this court's intention in Swann v.

Charlotte-Mecklenburg Bd. of Education,

402 U.S. 1, 15 (1971) when it stated that

the ‘objective today remains to eliminate

oiBe

from the public schools all vestiges of

state imposed segregation.’ It further is

contrary to the Court's intention in allo-

cating burdens where there is a long his-

tory of segregation as articulated by this

Court in Keyes v. School District No. 1,

Denver Colo., 413 U.S. 189, 208, 209

(1972).

This would be a good cause to defini-

tively remove this dilemma, and to clarify

this issue.

Il.

The Eighth Circuit in Moore v. Board

of Education of Chidester School District

No. 59, Ark., 448 F.2d 709, 711 (8th Cir.

1971) held that a school district must

show by "clear and convincing" proof that

discrimination did not occur when four

factors are present. There must be a

decrease in the number of black teachers.

The proportion of black faculty to white

faculty has to be significantly less chan

-13-

the proportion of black to white students,

and if only black teachers are dismissed.

The district court applied a rigid stan-

dard in determining whether the burden

shifted, and determined petitioners did

not make a prima facie case. Although the

court found a long history of segregation,

it found the other factors absent. As

petitioners were principals, the standard

should have been appropriately tailored.

At the time of the merger, there were two

black principals at the secondary level.

When the two schools from the black school

district were closed, there were no black

principals at the secondary level. (TR.

464). The percent of black students in

the district was 35%. The percent of

black faculty was 14%. (TR. 465). The

percent of black administrators was 15%.

(TR. 466). The district court should have

applied a more flexible formulation, de-

termined petitioners had made a prima

othe

facie case, and shifted the burden to

respondents to prove by clear and con-

vincing evidence, the absence of discrim-

ination. This wowuld be a good case to

complement this Court's position with

respect to the allocation of burdens gen-

erally as articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and

Texas Department of Community Affairs vv.

Burdine, 450 U.S. 248 (1981).

CONCLUSION

The Petition for Writ of Certiorari

should be granted.

Respectfully submitted,

t SOF ara Wis

JAMES E. TERRY, — 7

DONALD L. McCULLIN

4054 Lindell Boulevard

St. Louis, MO 631018

(314) 534-4400

Attorneys for Petitioner

-15-

CERTIFICATE OF SERVICE

I, James E. Terry, one of the attor-

neys for Ann MacDonald and Carl Jason,

petitioners herein, and a member of the

Bar of the Supreme Court of the United

States, hereby certify that, on the __

day of September, 1983, I served three

true and correct copies of the foregoing

Petition for Writ of Certiorari to the

United States Court of Appeals for the

Eighth Circuit upon attorney for Respon-

dent by placing same in the United States

mail, with first class postage prepaid, to

Norman C. Parker, Esq., Susman, Schermer,

Rimmel & Parker, Tenth Floor, Aragon

Place, 7711 Carondelet Avenue, St. Louis,

MO 63105.

JAMES E. TERRY

-16-

PROOF OF MAILING - AFFIDAVIT

I, James E. Terry, one of the attor-

neys for Ann MacDonald and Carl Jason,

petitioners herein, and a member of the

Bar of the Supreme Court of the United

States, hereby certify that, on the ___

day of September, 1983, I deposited in a

United States Post Office located at 1720

Market St., St. Louis, MO 63103, with

first-class postage prepaid, and properly

addressed to the Clerk of the Supreme

Court of the United States, within the

time allowed for filing, the foregoing

petition for writ of Certiorari.

JAMES E. TERRY

Subscribed and sworn to before me, at

St. Louis, MO, this (Zt day of September,

1983.

LY ” ft jj oak

€

APPENDIX

APPENDIX - TABLE OF CONTENTS

Judgment entered by the

United States District Court

for the Eastern District of

Missouri, filed on December

23rd, 1981, in favor of de-

fendants and against plain-

ce hee tee eee bee ecesee

Memorandum, Findings of Fact,

and Conclusions of Law, en-

tered by the United States

District Court for the East-

ern District of Missouri,

dated December 23, 1981 ........

Opinion and Judgment of the

United States Court of Ap-

peals for the Eighth Circuit,

dated February 16, 1983 ........

Order of the United States

Court of Appeals for the

Eighth Circuit granting the

petition for rehearing with

Suggestions for rehearing en

banc dated March 25, 1983 ......

Judgment of the United States

Court of Appeals for the

Eighth Circuit en banc af-

firming the judgment of the

United States District Court

for the Eastern District of

tea ea. ence be 6 eS 606 e808

PAGE

A-1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ANN MACDONALD AND )

CARL JASON, ;

Plaintiffs, )

)

vs. No. 78-776 C (1)

FERGUSON REORGANIZED )

SCHOOL DISTRICT R-2, )

et al., )

)

Defendants. )

JUDGMENT

In accordance with the Memorandum of

this Court filed this date and incorporated

herein,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that all defendants shall have

judgment against plaintiffs on plaintiffs'

complaint.

Dated this 23rd day of December, 1981.

lene eS

/s/

H. Kenneth Wangelin

United States District Judge

A-2

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ANN MACDONALD AND

CAARL JASON,

Plaintiffs,

vs. No. 78-776 C (1)

FERGUSON REORGANIZED

SCHOOL DISTRICT R-2,

Defendants.

SS NY NY NY BOY SY OY

MEMORANDUM

This matter is before the Court upon a

claim that plaintiffs were denied promotion

on account of plaintiff's race in violation

of §1 of the Civil Rights Act of 1866, and

42 U.S.C. §1981. The Court concluded a

bench trial which concluded on January 28,

1981. After consideration of the testimony

adduced at trial, the exhibits introduced

into evidence, the briefs of the parties,

and the applicable law, the Court hereby

makes the following findings of fact and

A-3

conclusions of law. Any finding of fact

equally applicable as a conclusion of law

is hereby adopted as such and, conversely,

any conclusion of law equally applicable as

a finding of fact is adopted as such.

Findings of Fact

l. Defendant, Ferguson Reorganized

School District R-2, is a public school

district in St. Louis County duly organized

and existing under the laws of the State of

Missouri.

re The Ferguson Reorganized School

District R-2 was on or about June 7, 1975

enlarged in its geographical boundaries by

Order and Judgment of the United States

District Court for the Eastern District of

Missouri, Cause No. 71-C-55 (1) to annex

two other school districts, namely, Kinloch

School District and Berkeley School Dis-

trict. This Order of the United States

District Court was entered following an

Order of August 27, 1973, reported at 363

A-4

F.Supp. 739, and an Order entered January

9, 1975, reported at 388 F.Supp. 1058, and

the decision of the United States Court of

Appeals of the Eighth Circuit, reported at

515 F.2d, 1365, for the desegregation of

the Kinloch School District which was one

hundred per cent (100%) black district.

The plan for desegregation ordered by the

court called for the closing of Kinloch

schools including the Kinloch High School

and the Kennedy Junior High School at the

end of the school year, 1975-1976. The

last order entered by the court in the

desegregation case was January 30, 1978.

Plaintiff, Carl Jason, a black male, was

employed as Principal of the Kinloch Senior

High School in the Summer of 1974 and

served his first school year as Principal

during school year 1974-1975. He was also

Principal at Kinloch for the school year

1975-1976. For the school year 1976-1977,

Carl Jason was assigned from Kinloch Senior

A-5

High School, which was closed in June, 1976

by order of the court, to Assistant Princi-

pal at the McCluer North High School which

is in the Ferguson Reorganized School Dis-

trict R-2. Plaintiff Carl Jason continues

to hold his reassigned position as As-

sistant Principal at McCluer North High

School.

3. Plaintiff Ann MacDonald, a black

female, was employed by defendant school

district's predecessor, Kinloch School Dis-

trict, as principal of Kennedy Junior High

School for the academic years 1974-1976.

Ms MacDonald was transferred from the

Kennedy Junior High School, which closed in

June, 1976 by order of the court, to As-

sistant Principal of the Berkeley Junior

High School which is in the Ferguson Re-

organized School District R-2. Plaintiff

MacDonald is now a community coordinator

for Title VI programs for the Ferguson-

Florissant School District. Plaintiff

A-6

MacDonald testified that her new job was a

lateral move from her previous position at

Berkeley Junior High.

4. At the time the defendant school

district was ordered to annex Kinloch

School District, the educational oppor-

tunities provided in the Kinloch School

District were remarkably inferior to the

opportunities in the Ferguson Reorganized

School District R-2. Kinloch's assessed

valuation per student was one-third of

Ferguson's and one-sixth of Berkeley's.

Kinloch's physical plant was markedly in-

ferior to the buildings and equipment in

the Ferguson School District particularly

at the high school and junior high school

levels. The educational degrees held by

Kinloch teachers was much lower than that

possessed by Ferguson teachers and Kinloch

had a higher turnover rate. Additionally,

the number of library books available to

students in Kinloch was significantly

A-7

lower, the curricula were much more limited

in Kinloch than in the Ferguson School

District. In short, the quality of educa-

tion in Kinloch was significantly lower

than in Ferguson. This is demonstrated by

the fact that Kinloch was classified as AA

while the Ferguson School District was

classified as AAA which is the highest

tating possible by the Missouri State De-

partment of Education.

5. At the time plaintiff Jason was

employed in the Kinloch School District as

Principal of the Kinloch High School the

enrollment at the high school was 262 stu-

dents and there were 22 teachers. For the

school year 1976-1977, which was the first

year plaintiff Jason was assigned to the

McCluer North High School as assistant

principal, the student enrollment was 2,407

and the number of teachers was 119. Mr.

Jason did not complain that his transfer to

McCluer was a demotion. The administrative

A-8

staff at McCluer consisted of one principal

and four assistant principals. Plaintiff

Jason has supervisory responsibility for

the eleventh grade of McCleur North which

translates into supervisory responsibility

for approximately 600 students and 30

teachers. Kinloch offered 57 3/4 units

necessary to attain a high school degree

while McCluer offered 120 units. McCluer

also had fifteen departments which demanded

a much higher level of sophistication and

training from teachers and administrators

than was called for at Kinloch High School.

McCluer North was undergoing integration

when Jason ws transferred there. Plaintiff

Jason's salary has been as follows:

1974-1975 1975-1976 1976-1977

$16,500 $20,000 $21,500

1977-1978 1978-1979 1979-1980

$23,000 $24,400 $25,600

A-9

6. When plaintiff MacDonald was ap-

pointed Principal of the Kennedy Junior

High School, that school had 170 pupils

enrolled and there were 10 teachers.

Kennedy Junior High School was actually a

middle school for it only included the

seventh and eighth grades. The school year

1976-1977, the first year plaintiff

MacDonald was assigned to Berkeley Junior

High School as Assistant Principal, the

student enrollment was 1,007 and the number

of teachers was 71. The administrative

staff at Berkeley consisted of one princi-

pal and two assistant principals. At

Berkeley Junior High School, plaintiff

MacDonald has supervisory responsibility

for approximately 500 students and 35

teachers. Plaintiff MacDonald also chairs

a number of departments at Berkeley Junior

High School. She is also in charge of

discipline for the entire school. The

Berkeley Junior High teaches grades seven,

A-10

eight and nine. Plaintiff MacDonald did

not originally complain about her transfer

to Berkeley. Plaintiff MacDonald's salary

has been as follows:

1974-1975 1975-1976 1976-1977

$13,600 $17,000 $20,000

1977-1978 1978-1979 1979-1980

$23,000 $24,000 $25,800

7. At the close of the school year

1976-1977, the positions of principal of

the Ferguson Junior High School, Cross Keys

Junior High School and McCluer North High

School became open. Notice of vacancies at

Ferguson Junior High School and McCluer

High School were printed and distributed to

the staff through a publication called

"Board Notes for the Staff". Requests for

applications were issued to the entire

staff of the school district through a

publication called "Board Notes", and thir-

teen (13) persons, including Carl Jason and

A-11l

Ann MacDonald, applied for one or both of

the positions. All the applicants were at

the time, and still are, employed in the

Ferguson Reorganized School District.

By state law, one must possess an Ad-

ministrator's Certificate in order to qual-

ify as a principal. Plaintiffs possessed

this requirement and were both qualified to

be principals as were the other applicants.

The school district received applications

before and after plaintiffs applied, from

others who also possessed the Administra-

tor's Certificate and who were qualified

according to state law, to be principals.

No applications were received from those

outside the Ferguson Reorganized School

District.

Each applicant appeared before a com-

mittee of six members for an interview.

The members of this committee were:

Bill Hampton, Principal

McCluer North High School

A-12

Edna Jackson, Librarian

McCluer North High School

Ruby Livinston, Teacher

McCluer North High School

John A. Wright, Assistant

Superintentent---

School Community Relations

Henry A. Prokop, Assistant

Superintendent---

Secondary Education

Paul B. Koch, Assistant

Superintendent---

Personnel

Two of the members of the committee are

black and the others are white. Two of the

members of the committee are women. The

committee recommended three applicants for

each position and they ranked the appli-

cants in order in which they were listed.

For the position of Principal of McCluer

High School, the committee recommended (1)

Wayne Fields, (2) M. Delores Graham and (3)

William Emerick in that order. For the

Junior High School positions they recom-

mended (1) Daryl K. Hall, (2) Carl

Swaringim and (3) Ann MacDonald in that

A-13

order. The superintendent recommended to

the Board of Education the appointment of

Wayne Fields to the position of Principal

of McCluer High School and Darrell K. Hall

as Principal of Cross Keys Junior High

School. Cross Keys consists of grades 7-9

with approximately 1200 pupils. Cross Keys

is similar to Berkeley Junior High School

in curriculum, teacher’ ability, and physi-

cal plant. Since Mr. Fields had been Prin-

cipal of Cross Keys Junior High and that

position also be vacant the superintendent

recommended that Carl Swaringim be ap-

pointed to the position of Principal at

Cross Keys Junior High School. The Board

of Education at its July 13, 1977 meeting

made the appointments pursuant to the su-

perintendent's recommendations.

8. In United States v. State of

Missouri, et al., 363 F.Supp. 739 (1973);

388 F.Supp. 1058, 1062 (E.D. Mo. 1975),

defendants were ordered to apply guidelines

A-14

established in Singleton v. Jackson Munici-

pal Separate School District, 419 F.2d 1211

(Sth Cir. 1970) in the conversion of school

districts from a dual system to a unitary

Systen.

9. As Principal of Kinloch High

School, Carl Jason was responsible for the

following functions: planning and sched-

uling for all students; supervision plan-

ning and coordination of extra-curricular

activities; coordination of public rela-

tions; and evaluation of the school's

teachers. Jason was closely supervised by

the superintendent. The superintendent had

responsibilities for supervising the hiring

and budgeting at Kinloch High School.

Plaintiff Jason's responsibilities at

McCluer North High School include taking

care of lockers, assigning locker room

stickers, watching the lunchroom area,

counseling at least twenty students, co-

ordinating commencement exercises for the

A-15

school, supervising the eieventh grade

which could include as many as eight hun-

dred students. The administrators at

McCluer North High School---the principal

and four assistant principals---share an

equal load in the supervision of teachers

and instructions.

10. At Kennedy Junior High School,

plaintiff MacDonald was in charge of bud-

geting, personnel supervision and evalua-

tion, building maintenance and supervision,

discipline and general hiring and dismis-

sals of staff and teachers. The Court

notes that Kennedy Junior High School had

no gymnasium, no cafeteria, or library and

was housed in a very small building and had

very little purchasing conducted at the

school. Plaintiff MacDonald was not in

charge of the industrial arts or the home

economics program at Kennedy. As with

Kinloch High School, the central office of

the superintendent played a great role in

A-16

supervising the purchasing duties at the

school and the activities and curricula

offered to the students. Plaintiff

MacDonald did not make the final decisions

at Kennedy Junior High--this was the pre-

rogative of the superintendent.

Plaintiff MacDonald's duties at

Berkeley Junior High School include disci-

pline of the student body, the evaluation

of half the professional staff, supervision

of the field trip budget, recommendations

to the principal concerning curriculum.

Berkeley Junior High School has a principal

and two assistant principals. It would be

impossible for one administrator to run

Berkeley Junior High School, indeed, all

three administrators are needed to offi-

cially and effectively run the school.

During plaintiff MacDonald's tenure at

Berkeley Junior High School, the high

school was involved in busing for the pur-

poses of desegregation.

A-17

ll. All the members of the selection

committee who testified affirmatively de-

nied that the screening committee was in

any way a sham or that the selection pro-

cess was a guise for discrimination. Men-

bers of the selection committee who testi-

fied also denied that any pressure or sug-

gestions as to the result the committee

should achieve from the school board or the

superintendent's office. The Court finds

that the committee's decision not to offer

the vacant principalships to plaintiffs

Jason and MacDonald is not the result of

racial animus.

12. State and federal agencies moni-

toring the desegregation of Ferguson School

District and Kinloch were aware of the use

of this selection committee to fill the

principalships of McCluer High School and

Ferguson Junior High School.

13. The selection committee made its

recommendations as to the applicant's rat-

A-18

ings in these categories: leadership pre-

sence; use of language, communication

skills, professional training, human rela-

tions training and ability, experience

relevant to position, ability to absorb and

disseminate material, planning ability,

judgmental ability, management ability,

financial and budgeting skills, evaluation

of knowledge and experience. These stan-

dards have been utilized for over fifteen

years by similar screening committees in

the Ferguson district and in various indus-

tries. The members of the selection con-

mittee were experienced administrators who

understood the meaning of these different

categories. The committee's agreement on a

particular candidate's recommendation was

unanimous.

A-19

Conclusions of Law

Singleton Guidelines Are Applicable.

l. The Court has jurisdiction of the

parties and the subject matter of this

action pursuant to the Civil Rights Act of

1866, 42 U.S.C. §1981, and 28 U.S.C.

§1343(3) and (4).

The Court in Singleton v. Jackson Muni-

cipal Separate School District, 419 F.2d

1211 (5th Cir. 1970) laid out a number of

guidelines designed to protect school staff

members dismissed or demoted as a conse-

quence of the desegregation process. The

dismissal or demotion must occur before the

end of the desegregation process for the

Singleton guidelines to apply. Lee _v.

Walker County, 594 F.2d 156 (5th Cir.

1979),; Keglar v. East Tallahathie School,

378 F.Supp. 1269 (N.D. Miss. 1974). Defen-

dants argue that the Singleton guidelines

do not apply because the segregation of the

Ferguson district was achieved in the 1976-

A-20

1977 school year and, therefore, plain-

tiffs' demotion, which occurred in Febru-

ary, 1976, was after the Ferguson district

became unitary. The Court cannot agree

with this argument. In Lemon v. Bossier

Parish School Board, 444 F.2d 1400, 1401

(4th Cir. 1971), the court remarked that a

school district must be operated as a uni-

tary system for several years before it is

considered "unitary" within the meaning of

that term in Singleton. Accord U.S. _ v.

Coffeville Consolidated School District,

365 F.Supp. 990 (N.D. Miss. 1973) (one

semester of unitary system not sufficient

to complete desegregation process). See

Thompson v. Madison County Board of Educa-

tion, 496 F.2d 682 (5th Cir. 1974). The

desegregation of the Ferguson School Dis-

trict was not complete during the 1976-1977

school year. Thus, plaintiffs’ purported

demotion occurred before the Ferguson

A-21

School District became a unitary system and

the Singleton guidelines apply.

Application of the Singleton Guidelines

2. The Singleton Court defined én a

demotion as inter alia, any reassignment

"(1) under which the staff member receives

less pay or has less responsibility than

under the assignment he held previously,

(2) which requires a lesser degree of skill

than did the assignment previously.’

Singleton, supra, 419 at 1218. Each case

must turn on its own unique facts. Lee v.

Pickins County School System, 563 F.2d 143,

146 n. 2 (5th Cir. 1977). While the Court

is empowered to consult increases or de-

creases in salary, Lee v. Board of Edu-

cation, 452 F.2d 1104 (5th Cir. 1971) and

the size of the respective schools, U.S. v.

Gadsen County School Board, 22 F.E.P.

cases, 1217 (5th Cir. 1976), the touchstone

in a demotion inquiry under Singleton is

whether "a reduction in responsibility” has

A-22

occurred. Lee v. Russell County Board of

Education, 22 F.E.P. 1526 (5th Cir. 1977).

The Court must weigh the responsibilities

actually held by the plaintiff in a par-

ticular position as opposed to those res-

pnsibilities borne in the position alleged

to have been a demotion. After comparing

the responsibility inherent in the position

of principal of Kinloch High School and the

responsibility required as assistant prin-

cipal of McCluer North High School, the

Court concludes that plaintiff Jason did

not receive a "demotion" within the meaning

of Singleton when he was transfered to

McCluer North High School. At McCluer

North, plaintiff supervises at least two

and one half times as many students as he

did at Kinloch. A much higher level of

expertise and responsibility is demanded by

a AAA school such as McCluer North High

School as opposed to Kinloch which is only

a AA school. ( Plaintiff Jason's responsi-

y, 45

ae /

A-23

bilities as assistant principal of McCluer

North were supervised by the principal,

however, plaintiff Jason's responsibilities

as principal of Kinloch were closely mon-

itored by the superintendent. The prin-

cipalship of a large, sophisticated in-

tegrated high school such as McCluer North

High School, attended by older students of

both races in their last years of public

education who may take courses in over

fifteen departments taught by a diversi-

fied, highly qualified bi-racial faculty,

may not be fairly regarded as the demotion.

Plaintiff Jason's label as assistant prin-

cipal opposed to that of principal at Kin-

loch High School can certainly not be con-

trolling nor can plaintiff Jason's subjec-

tive feelings. Plaintiff Jason maintained

many\ of the respobsibilities he had at

Kinloch when he transferred to McCluer

North and also acquired or shared the du-

ties at McCluer North which called upon him

A-24

to exercise the skills, expertise and tal-

ent untapped by the duties at Kinloch.

Plaintiff MacDonald actually supervised

almost three times as many students and

teachers as assistant principal at Berkeley

Junior High as she did as principal of

Kennedy Junior High School. At Kennedy,

plaintiff MacDonald had no cafeteria, li-

brary or gymnasium to oversee, whereas

Berkeley Junior High School has all these

facilities. Plaintiff MacDonald has a

significant share of the responsibilities

to develop curriculum at Berekley Junior

High School as was also given almost com-

plete charge of disipline at Berkeley

Junior High School. Plaintiff MacDonald's

salary increased when she took the as-

sistant principalship of Berkeley Junior

High School. Plaintiff MacDonald was also

called upon to share in the integration

process at Berkeley Junior High School, a

tesponsibility which demanded a high degree

A-25

of energy and creativity on the part of the

administrators. Taken together, the Court

concludes that while some of the plaintiff

MacDonald's duties at Berkeley Junior High

were different than those duties she held

as principal of Kennedy Junior High School,

nonetheless the Court concludes that by the

weight of the evidence each position con-

tained a commensurate amount of respon-

sibility. Plaintiff may have been a big

frog in a little puddle while at Kennedy

and a little frog in a big puddle at

Berkeley, but she shared equal respon-

sibility at both jobs. Plaintiff's subjec-

tive feelings and the mere change in title

cannot control what constitutes equal re-

sponsibility. Plaintiff MacDonald was not

demoted when she was transferred to

Berkeley Junior High School as assistant

principal.

Both plaintiffs were transferred to

jobs of equal responsibility and therefore

A-26

are not entitled to automatic promotion to

the next available position comparable to

their former positions, i.e., McCluer North

High School, Berkeley Junior High School

and Cross Keys High School.

Burden of Proof

3. In this action under 42 U.S.C.

§1981, plaintiffs must prove an intent to

discriminate on the part of the defendants

to prevail. Williams v. Anderson, 562 F.2d

1081, 1086 (8th Cir. 1977). The Court is

admonished to conduct a sensitive inquiry

into such circumstantial and direct evi-

dence of intent as may be available.

Arlington Heights v. Metropolitan Housing

Corp., 429 U.S. 252, 266 (1977). The court

may conduct a sensitive inquiry into the

impact of the challenged action, its his-

torical background, and legislative and

administrative history. Indirect evidence

of discriminatory intent may be sufficient

A-27

to establish a prima facie case of racial

discrimination and to create a rebuttable

presumption in favor of individual relief.

There is no inflexible formulation of what

constitutes a prima facie case. It varies

with respect to differing factual situa-

tions. Id at 1088. However, the burden

will shift and "a school district must show

by clear and convincing proof that the

dismissal of black teachers was not unlaw-

fully discriminatory if the district has

had a long history of segregation, if there

is a decrease in the number of black teach-

ers, if the proportion of the black faculty

to white faculty is significantly less than

the proportion of black to white students,

and if only black teachers were dismissed."

Moore v. Board of Education of Chidester

School District No. 59, Arkansas, 448 F.2d

709, 711 (8th Cir. 1971).

Plaintiffs did not carry their burden

to show that invidious discriminatory pur-

A-28

pose was the motivating factor behind their

transfers. Plaintiffs failed to establish

a prima facie case and the four factors

which the Chidester court replied upon in

holding that the burden of proof shifted to

defendants were absent in this case. While

there has been a history of segregation in

the Ferguson District, there is no evidence

to indicate that there was a decrease in

the number of black teachers, a signifi-

cantly less proportion of black faculty to

white faculty in comparison to black to

white students, and that only black teach-

ers were dismissed. See Clark v. Mann, 562

F.2d 1104 (8th Cir. 1977). While the prima

facie case may be established by the use of

statistical evidence, plaintiffs did not

present any statistical evidence at trial.

Nor did plaintiffs proffer any indirect

proof such as the impact of the challenged

action, the historical background and le-

gislative or administrative history.

A-29

Williams, supra, 562 F.2d 1086-1087. While

two black plaintiffs were denied promotions

from assistant to full principal, the over-

all impact was the same for the number of

black administrators in the district did

not change. Moreover, there were no dis-

criminatory salary scales involved in the

instant set of action as compared to the

set of facts in Williams, supra. As to

historical background, there was a finding

of intent to maintain separate facilities

in the old Berkeley, Kinloch and Ferguson

districts. However, at the time of this

lawsuit, the decision-making apparatus of

those districts had gone through a radical

change as a result of the court's order in

United States v. State of Missouri, supra.

In short, the decision-making body which

decided not to promote plaintiffs was not

the same decision-making process which

_ created and maintained segregated school

districts in the past. Finally, with re-

A-30

spect to the legislative and administrative

history of this lawsuit, it should be

pointed out that the state and administra-

tive agencies overseeing the integration of

the Ferguson Reorganized School District

were aware of and tacitly approved of the

selection process employed by defendants.

For all the above reasons, the Court con-

cludes that plaintiffs have failed in their

burden to show purposeful racial discrim-

ination on the part of defendants as the

motivating reason behind defendants’ deci-

sion to not offer the principalships of

McCluer North High School to plaintiff

Jason and Berkeley Junior High School to

plaintiff MacDonald.

Criteria Used in the Selection Process

4. The Court finds that defendants

did not utilize discriminatory criteria in

the selection process used to pick the

principals at McCluer North High School and

A-31

Berkeley Junior High School. In Moore v.

Board of Education of Chidester School

District No. 59, Arkansas, supra, 448 F.2d

at 713, the court through Judge Heaney

said:

That a board of education is

obligated to use objection non-

discriminatory stanadards in the

appointment, assignment and dis-

missals of teachers. A board may

also consider established and pre-

viously announced non-discrimina-

tory subjective factors in making

such decisions.

On the whole, the Court finds that most of

the criteria used by the selection commit-

tee was objective and none of the criteria

involved were discriminatory on their face.

As to those standards which might be deemed

subjective, the Court can find no evidence

that they were discriminatorily applied by

the selection committee. Every witness

involved in the selection process unambigu-

ously denied that there had been any inter-

ference or suggestion that the criteria be

applied in a racially discriminatory man-

A-32

ner. The fact that there were two black

members of the selection committee and that

the committee's decision was unanimous

supports the above conclusion.

It should also be noted that the cri-

teria which are challenged as subjective,

such as educational philosophy and leader-

ship ability, are clearly relevant and

informative to a good school principal.

Hereford v. Huntsville Bd. of Ed., 574 F.2d

268, 274 (5th Cir. 1978). The evidence

showed that the criteria used by the selec-

tion committee had been utilized for fif-

teen years without complaint. Certainly,

the criteria did not approximate "euphemis-

tic references to actual or assumed racial

distinctions." Smith v. Board of Education

of Morilton School District No. 32, 365

F.2d 770, 782 (8th Cir. 1966). Viewing the

entire process as a whole, including the

criteria employed, application of that

criteria, make-up of the selection commit-

A-33

tee and qualifications of the applicants;

the court is convinced the selection stan-

dards were neither subjective nor discrin-

inatory.

Dated this 23rd day of December, 1981.

Ls/

H. Kenneth Wangelin

United States District Judge

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-1108-EM September Term, 1982

Ann MacDonald, et al, FILED

June 28, 1983

Appellants,

Eyvon Mendenhall

vs. U.S. District Court

E. District of Mo.

Ferguson Reorganized

School District R-2,

et al,

Appellees.

Appeal from the United States District

Court for the Eastern District of

Missouri.

This appeal from the United States

District Court was submitted on the record

of the said District Court, briefs of the

parties, and was argued by counsel.

After consideration, it is ordered and

adjudged that the judgment of the said

District Court in this cause be, and the

same is hereby, affirmed in accordance

with the opinion of this Court.

February 16, 1983

A True Copy:

ATTEST:

Clerk, U.S. Court of da

Eighth Circuit 6/28/

A-34

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-1108

Ann MacDonald and *

Carl Jason, .

Appellants, *

v. * Appeal from the

* United States Dis-

Ferguson Reorgan- * trict Court for the

ized School Dis- * Eastern District of

trict R-2 and Board* Missouri

of Education Mem-

bers. Dr. Ray *

Howell; Joseph *

Wells; Dallas *

Imbeaux; Carol *

Barnes; James Poor;*

Edward W. Wilhelms,*

Appellees. *

Submitted: October 1, 1982

Filed: February 16, 1983

Before HEANEY and ROSS, Circuit Judges,

and HENLEY, Senior Circuit Judge.

ROSS, Circuit Judge.

A-35

This appeal involves the claim of

appellants, Ann MacDonald and Carl Jason,

that they were subjected to unlawful ra-

cial discrimination by the Ferguson Dis-

trict Board of Education following a de-

segregation order entered by the district

court in United States v. Missouri, 363

F.Supp. 739 (E.D. Mo. 1973). In the dis-

trict court , appellants sought injunctive

relief requiring the Board to offer them

the next available secondary principal

positions with an award of back pay, sen-

iority, and any other lost benefits. The

appellants further asked the court to hold

that the selection process used by the

Board in hiring principals was discrimina-

tory due to its subjective nature. After

a full hearing, the district court denied

the relief sought. We affirm.

On August 27, 1973, Judge Meredith

found unlawful discrimination against

black students in the Kinloch School Dis-

A-36

trict on account of their race. The

court, in 1975, issued a follow-up deci-

sion ordering the immediate annexation of

the Berkeley and Kinloch School Districts

by the Ferguson District. The court also

ordered the Ferguson Reorganized School

District to follow the criteria estab-

lished in Singleton v. Jackson Municipal

Separate School District, 419 F.2d 1211

(5th Cir.), cert. denied, 396 U.S. 1032

(1970), in the event that the Board pro-

posed to demote or dismiss a faculty or

staff member as a result of the desegrega-

tion process.

Prior to the merger of the districts,

appellant MacDonald was the principal of

Kennedy Junior High School and appellant

Jason was the principal of Kinloch High

School. Both schools were part of the

now-defunct Kinloch School District. As a

result of the merger in August of 1976,

Kinloch High School and Kennedy Junior

A-37

High School were closed. Appellants Jason

and MacDonald were reassigned to assistant

principalships in the new reorganized

school district; Jason being transferred

to McCluer North Senior High School and

MacDonald being sent to Berkeley Junior

High School.

During the summer of 1977, the posi-

tions of principal at McCluer High School

and Ferguson Junior High School opened up

as a result of two voluntary demotions.

Since these positions could not be filled

by lateral transfer, a committee was

formed to screen potential candidates

within the Ferguson Reorganized School

District for these positions. Before the

screening procedure began, the superinten-

dent of the district, Dr. Brown, secured

the approval of the Board of Education and

also discussed the screening procedure

with those state and federal agencies

monitoring the school district with re-

A-38

spect to the desegregation and annexation

orders. The agencies found the screening

procedure to be an objective process. The

selection committee consisted of six staff

members within the school district. Two

of its members were black and the remain-

ing four members where white.

When the position openings were an-

nounced, 13 people within the district

applied. Appellants Jason and MacDonald

were among the 13 applicants. After

screening of all the applicants, the com-

mittee recommended two white males to fill

the vacant principalships. The Board of

Education acted on these recommendations

and these individuals were so appointed.

Following this action, appellants Jason

and MacDonald wrote the superintendent

expressing their concern that the

Singleton guidelines had been ignored, and

on July 26, 1978, they filed suit in dis-

A-39

trict court alleging discrimination in the

failure to promote because of their race.

On appeal, Jason and MacDonald raise

two issues: 1) whether their reassignment

as assistant principals constitute a de-

motion as defined in Singleton; and 2)

whether the selection process used to fill

the vacancies was discriminatory due to

its subjective nature.

Appellants' first contention is that

their transfer from a principalship in the

Kinloch District to an assistant princi-

palship in the Ferguson Reorganized School

District was a “demotion” under the stan-

dards set forth in Singleton. The dis-

trict court found as a factual matter that

the transfers were not a "demotion" under

Singleton and the scope of our review of

this determination is limited to whether

this factual determination decision was

“clearly erroneous." See FED. R. CIV. P.

52(a); Wilson v. Legal Assistance of North

A-40

Dakota, 669 F.2d 562, 564 (8th Cir. 1982).

In Singleton, the court held that if,

during the desegregation process, there is

a reduction in the number of school enm-

ployees which will result in a dismissal

or demotion of any such employees, the em-

ployee dismissed or demoted must be re-

hired or promoted to fill the next vacancy

which is comparable to the last position

that was held. Thus, appellants correctly

assert that if they were "demoted" when

they were transferred to the Ferguson

School District, they are entitled to the

next vacancy in a comparable principal-

ship. Singleton defined "demotion" as

follows:

"Demotion" as used above in-

cludes any re-assignment (1) under

which the staff member receives

less pay or has less responsibil-

ity than under the assignment he

held previously, (2) which re-

quires a lesser degree of skill

than did the assignment he held

previously, or (3) under which the

staff member is asked to teach a

subject or grade other than one

for which he is certified or for

A-41

which he has had substantial ex-

perience within a reasonably cur-

Tent period. In general and de-

ending upon the subject matter

nvolved, five years is such a

reasonable period.

Id. at 1218.

Several Fifth Circuit decisions have

considered the construction of Singleton's

demotion standard. In Lee v. Macon County

Bd. of Education, (Muscle Shoals), 453 F.2d

1104, 1109 (Sth Cir. 1971), the court em-

phasized that the real gist of demotion is

a reduction in responsibility, not in sal-

ary. In Lee v. Macon County Bd. of Educa-

tion, (Thomasville), 470 F.2d 958, 959 (5th

Cir. 1972), the court held that as long as

the new responsibilities are substantial in

mature and are not significantly different

from those exercised in the former posi-

tion, there has been no "demotion" under

Singleton. Furthermore, the court then

went on to hold that a transfer from a

principalaship to an administrative as-

sistant to the Superintendent of Schools

A-42

was not a "demotion." Thus, it seems that

the courts must undertake an examination of

the responsibilities in both the old posi-

tion and the new position to determine

whether a "demotion" has occurred.

We find that the district court clearly

discharged its duty to examine any change

in responsibility caused by the transfers

into the reorganaized district when it

held:

The Court must weigh the responsi-

bilities actually held by the

plaintiff in a particular position

as opposed to those responsibili-

ties borne in the position alleged

to have been a demotion. After

comparing the responsibility in-

herent in the position of princi-

pal of Kinloch High School and the

responsibility required as assist-

ant principal of McCluer North

High School, the Court concludes

that plaintiff did not receive a

"demotion" within the meaning of

Singleton when he was transferred

to McCluer North High School. At

McCluer North, plaintiff super-

vises at least two and one half

times as many students as he did

at Kinloch. A much higher level

of expertise and responsibility is

demanded by an AAA school such as

McCluer North High School as op-

A-43

posed to Kinloch which is only an

AA school. Plaintiff Jason's re-

sponsibilities as assistant prin-

cipal of McCluer North were super-

vised by the principal, however,

plaintiff Jason's responsibilities

as principal of Kinloch were

closely monitored by the superin-

tendent. The principalship of a

large, sophisticated integrated

high school such as McCluer North

High School, attended by older

students of both races in their

last years of public education who

may take courses in over fifteen

departments taught by diversified,

highly qualified bi-racial facul-

ty: may not be fairly regarded as

the demotion. Plaintiff Jason's

label as assistant principal as

Opposed to that of principal at

Kinloch High School can certainly

not be controlling nor can plain-

tiff jason's subjective feelings.

Plaintiff Jason maintained many of

the responsibilties he had at

Kinloch when he transferred to

McCluer North and also acquired or

shared the duties at McCluer North

which called upon him to exercise

the skills, expertise and talent

untapped by the duties at Kinloch.

Plaintiff MacDonald actually

supervised almost three times as

Many students and teachers as

assistant principal at Berkeley

Junior High as she did as princi-

eae of Kennedy Junior High School.

t Kennedy, plaintiff MacDonald

had no cafeteria, library or gym-

masium to oversee, whereas

Berkeley Junior High School has

all these facilities. Plaintiff

A-44

MacDonald had a significant share

of the responsibility to develop

curriculum at Berkeley Junior High

School and was also given almost

complete charge of discipline at

Berkeley Junior High School.

Plaintiff MacDonald's salary in-

creased when she took the assis-

tant principalship of Berkeley

Junior High School. Plaintiff

MacDonald was also called upon to

share in the integration process

at Berkeley Junior High School, a

SP aap eternity which demanded a

high degree of — and crea-

tivity on the part of the admin-

istrators. Taken together, the

court concludes that while some of

plaintiff MacDonald's' duties at

Berkeley Junior High School were

different than those duties she

held as principal of Kennedy

Junior High School, nonetheless

the Court concludes that by the

weight of the evidence each posi-

tion contained a commensurate

amount of responsibility. Plain-

tiff may have been a big frog in

a little puddle while at Kennedy

and a little frog in a big puddle

at Berkeley, but she shared equal

responsibility at both jobs.

Plaintiff's’ subjective feelings

and the mere change in title can-

not control what constitutes equal

responsibility. Plaintiff

MacDonald was not demoted when she

was transferred to Berkeley Junior

me a School as assistant princi-

pal.

Both plaintiffs were trans-

ferred to jobs of equal respon-

sibility and therefore are not

A-45

entitled to automatic promotion to

the next available position com-

parable to their former positions,

i.e., McCluer North High School,

Berkeley Junior High School and

Cross Keys High School.

MacDonald v. Ferguson Reorganized School

District, 530 F.Supp. 469, 475 (E.D. Mo.

1981).

After giving full consideration to all

of the evidence presented to the district

court, we are unable and unwilling to say

that the district court was clearly erron-

eous as to the facts found or that the

facts so found do not support the legal

conclusion reached in denying the relief

sought.

Appellants also aver that the selection

process employed by the Ferguson district

was discriminatory because subjective cri-

teria was used to screen the applicants for

the vacant principalships. We disagree.

The record fully supports the district

court's finding that the district's selec-

A-46

tion procedures were structured to minimize

any discriminatory applications.

In filling vacant positions, a school

board may properly base its decision on

subjective factors, such as: an appli-

cant's knowledge of his subject, philosophy

on education and on life in general, ap-

pearance, references, leadership ability,

and aggressiveness. Hereford Vv.

Huntsville Bd. of Education, 574 F.2d 268,

270 (5th Cir. 1978). The use of subjective

criteria is especially necessary when the

position being filled is one of leadership;

where qualities such as responsibility and

management skills are being assessed. Royal

v. Missouri Highway and _ Transportation

Commission, 655 F.2d 159, 164 (8th Cir.

1981). Furthermore, when some of the eval-

uators themselves are members of the pro-

tected minority, subjective procedures lose

much of their susceptibility to discrimina-

tory abuse. Id.

A-47

We feel that the subjective criteria

used in this case were clearly relevant and

necessary in choosing the best candidate

for the principalships. Moreover, the

selection process had been reviewed and

approved by the agencies responsible for

policing the procedures used in the annexa-

tion of the school districts. Appellants

have shown no other evidence of discrimina-

tion and without such a showing the use of

subjective criteria alone is insufficient

to make a case of discrimination. Eubanks

v.__ Pickens-Bond Construction Co., 635 F.2d

1341, 1347 (8th Cir. 1980). After a care-

ful review of the evidence presented to the

district court, we are unable to hold that

the factual findings of the district court

were clearly erroneous or that the law was

erroneously applied to those facts.

For the foregoing reasons, we affirm

the holding of the district court.

A-48

HEANEY, Circuit Judge, disssenting.

I respectively dissent. In my view,

Jason and MacDonald are entitled to princi-

palships in the Ferguson Reorganized School

District. At the time the Ferguson Dis-

trict annexed the Kinloch District pursuant

to a desegregation order, the superinten-

dent assigned these black principals to

assistant principal positions without com-

paring their qualifications with those of

the white principals who automatically

retained their status. This reassignment

violated the desegregation order. More-

over, the school district discriminated

against Jason and MacDonald again when it

failed to promote them to the principal-

ships that subsequently became available in

the reorganized district.

In 1973, the district court found that

as a direct consequence of the creation and

maintenance of the Kinloch District as a

A-49

small, all-black school district, the edu-

cational opportunities provided Kinloch

students were markedly inferior to those

offered in the adjoining Berkeley and

Ferguson Districts. Kinloch had the lowest

valuation per pupil of any school district

in St. Louis County; its buildings and

equipment were markedly inferior; its li-

brary was understocked; and its curriculum

was} limited. The district court further

found the county and state defendants had

ignored the long standing educational defi-

ciencies in the all-black district and had

not attempted to consolidate it with other

districts because of racial prejudice. A

referendum defeated the one attempt made to

consolidate Kinloch with other local dis-

tricts.

Judge Meredith concluded that

** * the cumulative effect of

the actions of the state an local

defendants has been the creation,

Operation, support, and general

supervision by the State of

Missouri of a small school dis-

A-50

trict which is unconstitutionally

segregated and whose students are

denied an equal educational oppor-

tunity.

United States v. Missouri, 363 F. Supp.

739, 749 (E.D. Mo. 1973) (citataions omit-

ted).

The district court ordered the state

and other defendants "to develop and imple-

ment a plan which will ‘achieve the great-

est possible degree of actual desegrega-

tion, taking into account the practicali-

ties of the situation.'” Id. at 750. It

specifically directed that such plan in-

clude provisions to protect the interests

of faculty and staff. After many setbacks

and numerous settlement conferences, the

State Board of Education submitted a deseg-

Tegation plan which directed the annexation

of the all-black Kinloch District and

Berkeley, an integrated district, to the

all-white Ferguson District. The district

court ordered implementation of this plan

and we affirmed that order on appeal. See

A-51

United States v. Missouri, 515 F.2d 1365

(8th Cir. 1975).

To consolidate the districts, the

school board ordered some school closings.

Because the black schools were the smallest

and in the poorest condition, the Board

closed four schools in the Kinloch Dis-

trict. The Superintendent of the Ferguson

District assigned the_two black secondary

ne@ipals these closings displaced, Jason

~~.

— wxeDonald, to assistant principal posts

at McCluer North Senior High School and

Berkley Junior High School. The new dis-

trict did not scrutinize the relative qual-

ifications of fall the principals to choose

the most qualified persons. The white

A-52

secondary principals automatically retained

their status.!

In my view, the district discriminated

against Jason and MacDonald when it simply

assumed that they were not as well quali-

fied for principalships in the reorganized

district as the white principals who oc-

cupied the positions. By operating on this

assumption, the district violated the de-

segregation order.”

lat trial, Superintendent Warren Brown

testified he reassigned eleven administra-

tors at the time of annexation. He did not

attempt to reassign based on qualifications

because the school district considered all

the transfers lateral moves. At the secon-

dary level, Jason and MacDonald were the

only principals moved into assistant prin-

cipal positions.

2Neither Judge Meredith nor this Court,

which ratified the annexation plan on ap-

peal, intended that the administrators and

teachers from the annexed districts would

have less rights than those from the annex-

ing district after consolidation. The

district court used annexation only as a

means to achieve integration: the adminis-

trators and teachers from the three dis-

tricts were to have equal status in the

consolidated district.

A-53

The district relied on a literal and

legalistic application of Singleton v.

Jackson Municipal Separate School District,

419 F.26 1211 (Sth Cie. 1969), ears.

denied, 396 U.S. 1032 (1970), to avoid

screening Jason and MacDonald. Singleton

holds a school district must hire, re-

assign, promote, pay, demote, dismiss or

otherwise treat staff without regard to

race, color, or national origin. Id. at

1218. Singleton mandates fair treatment in

the employment decisions which accompany

desegregation. Requiring school districts

to formulate and apply objective, nonracial

criteria to guide these employment deci-

sions assures fair treatment. See Moore v.

Tangipahoa Parish School Board, 594 F.2d

489, 498 (Sth Cir. 1979). To comply with

Singleton, the district should have set up

screening procedures at the time the merger

forced a reduction in the number of princi-

pals in the district. This precaution

A-54

would have assured that the school dis-

trict's reassignment decisions did not rely

on race as a factor.

The court below erred in accepting the

school district's narrow interpretation of

its duty under the desegregation order and

Singleton. Like the school district, the

district court incorrectly focused on the

size and sophistication of McCluer North

and Berkley in assessing whether the school

district violated the desegregation order

by transferring Jason and MacDonald to

assistant principal positions in these

schools.> The court concluded the

3The district court stated: "The [as-

sistant] principalship of a large, sophis-

ticated, integrated high school such as

McCluer North High School, attended by

older students of both races in their last

years of public education who may take

courses in over fifteen departments taught

by a diversified, highly qualified bi-

tacial faculty, may not be fairly regarded

as a demotion." Slip op. at 5.

A-55

district did not violate the order primari-

ly because, in their new positions, Jason

and MacDonald dealt with more students and

contributed to the functioning of large,

sophisticated system.4 The mere fact,

however, of transfer from the principalship

of a small poor black school to the nominal

post of assistant principal in a large

integrated school does not establish the

school district complied with Singleton.

United States _v. Gadsden County School

District, 539 F.2d 1369, 1376 (5th Cir.

1976). See also Hardy v. Porter, 613 F.2d

112, 114 (5th Cir. 1980).

‘this conclusion is succinctly stated

in the district court's frog analogy:

"Plaintiff may have been a big oy in a

little puddle while at Kennedy a a little

frog in a big puddle at Berkley, but she

shared equal responsibility at both jobs.”

Slip op. at 6.

A-56

Furthermore, focusing on the size and

sophistication of plaintiffs’ old and new

schools in effect penalizes them for being

past victims of invidious discrimination.

The state was responsible for the small

size and poor quality of the black schools

because it perpetrated the segregation that

spurred the desegregation order.

As principals, both Jason and MacDonald

were the top administrators in their

schools answering only to the superinten-

dent. They did not have assistants; they

personally oversaw all facets of school

life from curriculum and budgeting to

scheduling and discipline. As an assistant

principal at McCluer North, Jason has some

administrative duties such as eleventh

grade discipline and attendance, teacher

evaluation for twenty-four teachers, and

some curriculum planning. "Trivial admin-

istrative tasks,"' however, replace many of

his former duties. He takes care of lock-

A-57

ers, assigns locker room stickers, arranges

staff parking, supervises field trips, and

plans commencement. He no longer works

with parents, plans in-service workshops.

devises special programs, balances the

budget, or oversees building security.

MacDonald supervised thirty-five teach-

ers as an assistant principal at Berkley

Junior High.? Her other responsibilities

were: supervising attendance and truancy,

taking care of bus and lunch problems,

checking halls, overseeing assemblies, re-

vising the student handbook, and checking

whether the custodial staff had done its

work. As a principal at Kennedy Junior

High, MacDonald had supervised the curricu-

lum and budget for an entire school, draft-

SMacDonald became coordinator of ESA

Title VI community programs in July, 1980.

A-58

ed state and federal reports, and devised a

master schedule. Both plaintiffs spent

most of their time doing the perfunctory

tasks necessary to keep a large school

running as assistant principals. The poli-

cy and curriculum decisions, public rela-

tions, and ultimate supervisory responsi-

bility they once enjoyed are reserved for

the principals.

In sum, when desegregation forced the

school district to eliminate some of its

principalships, the district should have

used objective, nonracial criteria to de-

termine which principals would retain their

status. This procedure would have assured

the displaced black principals fair treat-

ment. The school district violated the

essence of the desegregation order when it

chose instead to place these black former

_ principals in assistant principal positions

and automatically retained the white prin-

cipals. While Jason and MacDonald did not

A-59

protest their initial assignments as as-

sistant principals in 1976, the school

district's failure to consider them for

principalships at that time must be con-

sidered in determining whether it discrim-

inated against them when principalships

Opened up approximately one year later.

When that event occurred, consistency re-

quired that Jason and MacDonald be named to

these positions. Instead, the district

adopted a largely subjective screening

procedure to fill the vacancies.

The plaintiffs applied for the two

positions along with thirteen other appli-

cants. A screening panel, appointed by

two white superintendents, conducted

twenty-minute interviews with each appli-

cant. Based solely on subjective impres-

sions formed in the interviews, the

screening committee selected two white

males for the principalships ostensibly on

the grounds they were the best qualified

A-60

persons for the positions. Another white

male was slected to fill the principalship

which became vacant as a result of these

recommendations.

This time, Jason and MacDonald objected

to the procedure that was followed and

instituted an action in United States Dis-

trict Court. The district court held that

they had not established a prima facie case

of discrimination; and that even if they

had, their prima facie case was rebutted by

a showing that the white principals were

better qualified. It erred in both re-

spects.

Jason and MacDonald established a prima

facie case by proving that they applied for

the available positions and, although they

were qualified, the scHool district reject-

ed them and hired white applicants in their

place. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253

(1981); Wilson v. Legal Assistance of North

A-61

Dakota, 669 F.2d 562, 563-564 (8th Cir.

1982). This prima facie case was

strengthened by the recent history of dis-

crimination leading to the desegregation

order and by the fact that there are pre-

sently no black junior or senior high

school principals in a district that is

thirty-five percent black. Thompson _ v.

School District of Omaha, 623 F.2d 46, 48

(8th Cir. 1980); Hardy v. Porter, supra,

613 F.2d at 114; Barnes v. Jones County

School District, 544 F.2d 804, 807 (5th

Cir. 1977); Moore v. Board of Education of

Chidester School District No. 59, 448 F.2d

709, 711 (8th Cir. 1971).

The plaintiffs need not prove relative

qualifications to meet their prima facie

burden. Hawkins v. Anheuser-Busch, No. 81l-

1153, slip op at 7-8 (8th Cir. Jan. 10,

1983); see also Aikens v. United Postal

Services Board o vernors,

oe r. » cert. granted, 102

S. Ct. 1707 (1982).

A-62

Moreover, plaintiffs' prima facie case

was not rebutted, whether we use the stan-

dard applicable in desegregation cases or

the standard applicable under Title VII.

In the desegregation context, a plaintiff's

prima facie case creates a legally manda-

tory, rebuttable presumption of discrimina-

toy intent. Marshall v. Kirkland, 602 F.2d

1282, 1289 (8th Cir. 1979); Clark v. Mann,

562 F.2d 1104, 1117 (8th Cir. 1977). The

burden then shifts to the defendant to

rebut such a prima facie case with "clear

and convincing evidence." Clark v. Mann,

supra, 562 F.2d at.1117; Moore v. Board of

Education of Chidester School District No.

* 59, supra, 448 F.2d at 711.

Texas Department of Community Affairs

v. Burdine, supra, has not affected this

burden shifting. As the Fifth Circuit

recognized in Castaneda _ v. Pickard, 648

F.2d 989, 995 n.2 (Sth Cir. 1981) (citation

omitted):

A-63

[wle do not believe that

Burdine affects the burden shift-

ing device we have long employed

in the distinctive context of

claims alleging discrimination,

whether in employment or other

areas, by a school district with a

history of unlawful segregation.

The analysis we have employed in

this latter type of case is not

derived from McDonnell Douglas;

even as we employed the now dis-

approved "preponderance of the

evidence" requirement in most

Title VII contexts, we distin-

guished the situation where a

claim of employment discrimination

was lodged against a school dis-

trict which formerly operated a

dual school system and imposed the

even stiffer "clear and convinc-

ing" standard.* * * The applica-

tion of this standard under these

circumstances, is consistent with

the type of presumptions approved

by the Supreme Court in Swann v.

Charlotte-Mecklenbur Board of

Education, 402 U.S. J, 91 S. Ct.

1267, 28 L.Ed.2d 554 (1971) (in

school district which formerly

operated segregated dual systen,

burden placed on district to es-

tablish that continued existence

of some one-race schools is not

the result of present or past

discriminatory action by the dis-

trict) and Keyes v. School Dis-

trict No. enver Colo. oat

U.S. 189, 208, 73 8. ct. 2 ;

2697, 37 L.Ed.2d 548 (1973)

("finding of intentionally segre-

gative school board actions in a

meaningful portion of a school

system... creates a presumption

< \

A-64

that other segregated schooling

within the system is not adventi-

tious .. . and shifts to these

authorities the burden of proving

that other segregated schools

within the system are not also the

result of intentionally segregatve

actions.") We do not believe the

Court in Burdine intended to af-

fect the manner in which this

court has applied a presumption

similar to that recognized in

Swann and Keyes, to place on

school districts having a history

of unlawful discrimination a more

onerous burden of rebuttal in an

employment discrimination case

than is usually imposed on defen-

dant in a Title VII case.

The school district attempted to rebut

plaintiffs' prima facie case by introducing

evidence that a majority white screening

committee, using primarily subjective stan-

dards, had determined that the white appli-

cants selected for the position were better

qualified than Jason and MacDonald. This

Court has recognized that such hiring cri-

teria lends itself too readily to racially

discriminatory abuse. See, e.g., Royal v.

Missouri Highway and Transport Comm'n, 655

F.2d 159, 164 (8th Cir. 1981); United

A-65

States v. Hazelwood School District, 534

F.2d 805, 813 (8th Cir.), vacated on other

grounds, 433 U.S. 1037 (1976); Green v.

McDonnell Douglas Corp., 463 F.2d 337, 352

(8th Cir. 1972), modified, 411 U.S. 792,

803 (1973); Moore v. Board of Education of

Chidester School District No. 59, supra,

448 F.2d at 713. For this reason, we have

specifically held in the desegregation

context that the use of subjective criteria

in employment decisions carries little

weight in meeting the school district's

burden to prove that it is not discrimin-

ating. Williams v. Anderson, supra, 562

F.2d at 1100; Moore v. Board of Education

of Chidester School District No. 59, supra,

448 F.2d at 713; Smith v. Board of Educa-

tion of Morrilton School District No. 32,

365 F.2d 770, 782 (8th Cir. 1966).

The record demonstrates that the school

district prgmoted the white applicants

based solely on subjective impressions of

A-66

the candidates’ objective and subjective

qualifications. The screening committee

did not see the applicants’ personnel files

even though all of the candidates had

served in the district and had received

evaluations from past supervisors. The

committee members ranked the candidates,

after a twenty-minute interivew, on such

elusive qualities as their human relations

ability, leadership presence, and ability

to absorb and disseminate material. Of the

twelve factors investigated by the screen-

ing committee, reference to the candidate's

personnel file could have measured three.’

These factors are professional

training, experience relevant to position,

and human relations training.

“

A-67

The rest are primarily measurable only as

subjective impressions.® The screening

committee gave equal weight to each factor

in their ranking of the candidates. No

objective evaluation was used. Each candi-

date recited their professional training

and experience, but the screening committee

had only a general impression of each can-

didate's training and work history prior to

the interviews. Such screening procedure

is at best an inexcusably poor attempt to

eliminate race as a factor.

8these factors are leadership presence,

communicatins skills, use of language,

human relations ability, financial and

budgeting skills, ability to absorb and

disseminate material, planning ability,

ieeetiy ability, management ability and

overall) evaluation of knowledge and ex-

perience.

A-68

The majority and the district court

emphasized that two members of the six-

person committee were black and that the

committee reached a unanimous decision. I

think this emphasis is misplaced. The

presence of blacks on the selection commit-

tee is not sufficient to rebut a prima

facie case even if the blacks comprise a

majority of those responsible for the al-

legedly discriminatory result. Castaneda

v. Partida, 430 U.S. 482, 499-500 (1977).

Here, the blacks were in a minority and the

decision was reached by consensus rather

than by a voting procedure.

The majority also states that a school

board may use subjective factors in de-

ciding relative qualifications. I have no

quarrel with that statement but, in this

case, the factors were almost completely

subjective. I also note that in Hereford

v. Huntsville Board of Education, 574 F.2d

268, 270-272 (Sth Cir. 1978) and Royal v.

A-69

Missouri Highway and Transportation Comm'n,

655 F.2d 159, 164 (8th Cir. 1981), the

defendant used objective factors in making

its employment decision as well as subjec-

tive ones.

Even if we were to allocate the burden

of proof in accordance with the Title VII

disparate treatment standard, the plain.

tiffs should prevail. Under this theory,

once the plaintiffs established their prima

facie case by proving two qualified blacks

applied for principalships and the school

district chose only whites, the school

district's burden was to articulate a legi-

timate, nondiscriminatory reason for its

employment decision. Texas Department of

Community Affairs v. Burdine, supra, 450

U.S. at 254, 255. The school district did

articulate a reason, i.e., it appointed the

candidates recommended as the best quali-

fied by the screening committee.

A-70

For the reasons discussed previously,

the plaintiffs have clearly shown this

Treason to be pretextual. First, the school

district changed the procedure used to

select principals. When the schools were

initially consolidated and integrated, the

white principals were permitted to continue

their positions in their buildings without

having their qualifications compared with

the black principals who were displaced.

If this procedure had been followed when

the vacancies now at issue occurred, the

school district would have automatically

given principalships to Jason and

MacDonald, who were admittedly qualified,

without a screening procedure. Second,

two-thirds of the screening committee mem-

bers were white. Third, subjective stan-

dards were given the most weight in deter-

mining which applicants were the best qual-

ified. Even the objective factors were

measured subjectively with the result that

A-71

neither this Court, nor the district court,

can review the candidates’ objective quali-

fications. Finally, the rating forms that

were used are not a part of the record

before this Court, and the screening com-

mittee did not have the candidates’ person-

nel files.

For all of the foregoing reasons, I

would reverse and remand to the district

court with directions to require the defen-

dants to appoint the plaintiffs to princi-

pal positions at the beginning of the 1983-

1984 school year, and to award them back

pay based on the difference between what

their salary would have been if they had

been appointed to the principalships that

opened up in 1977 and their actual sal-

aries.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

A-72

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ANN MACDONALD and

CARL JASON,

Plaintiffs,

vs. No. 78-776 C (1)

FERGUSON REORGANIZED

SCHOOL DISTRICT R-2,

ET AL.,

we NS SO OO SS

Defendants.

NUNC PRO TUNC ORDER

IT IS HEREBY ORDERED that line 5 on

page 14 of this Court's Opinion Memorandum

dated December 23, 1981, shall read as

follows:

The Court finds that defen-

dants did not utilize discrimina-

tory criteria in the selection

process used to pick the princi-

pals for McCluer High School,

Ferguson Junior High School and

Cross Keys Junior High School.

17 ay this 8th day of January,

/s/

H. Kenneth Wangelin

United States District Judge

A-73

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-1108-EM September Term 1982

Ann MacDonald and

Carl Jason,

Appellants,

vs. Appeal from the

United States Dis-

trict Court for the

Eastern District of

Missouri

Ferguson Reorgan-

ized School Dis-

trict R-2 and

Board of Education

Members. Dr. Ray

Howell; Joseph

Wells; Dallas

Imbeaux; Carol

Barnes; James

Poor; Edward W.

Wilhelms,

NNN SY

Appellees.

The Court, having considered appel-

lants' petition for rehearing with sugges-

tions for rehearing en banc and being now

fully advised in the premises, hereby or-

ders the petition for rehearing with sug-

gestions for rehearing en banc granted.

March 25, 1983

A-74

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-1108

Ann MacDonald and

Carl Jason,

Appellants,

Vv. Appeal from the

United States Dis-

trict Court for the

Eastern District of

Missouri

Ferguson Reorgan-

ized School Dis-

trict R-2 and

Board of Education

Members. Dr. Ray

Howell; Joseph

Wells; Dallas

Imbeaux; Carol

Barnes; James

Poor; Edward W.

Wilhelms,

% FF OF OF OOF OF OF OF OF OF OF OE OF OF OF OF OF HE OF

Appellees.

Submitted: May 16, 1983

Filed: June 15, 1983

Before Chief Judge LAY, HEANEY, BRIGHT,

ROSS, McMILLIAN, ARNOLD, JOHN R.

GIBSON, and FAGG, Circuit Judges.

PER CURIAM.

A-75

The judgment of the district court is

affirmed by an equally divided court.

Chief Judge Lay and Circuit Judges Heaney,

McMillian and Fagg would reverse and re-

mand.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

100

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.