# Petition — MacDonald v. Ferguson Reorganized School District R-2 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0446%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 961 ## 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 Fa 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 v. 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 Pt 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) ' in ' 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 10 a 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- ll 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, 12 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 13 - 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 I. 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 14 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 15 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 16 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 17 -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 18 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 19 -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 20 -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 v Lf € 21 APPENDIX 22 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 23 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 24 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, a 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 25 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 26 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 27 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 28 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 29 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 30 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 31 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, 32 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 33 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 34 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 35 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 36 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 37 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 38 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. 39 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- 40 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. 41 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- 42 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 43 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 44 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- an 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 46 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 47 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 48 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 49 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- 50 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. 51 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- 52 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 53 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- 54 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- 55 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 56 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 57 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/ 58 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. 59 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- 60 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 61 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- 62 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- 63 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 64 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 65 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 66 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- 67 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 68 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 69 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- 70 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. 71 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. 72 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 73 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- 74 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 75 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 y the most qualified persons. The white 76 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. 77 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 78 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. 79 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. 80 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- 81 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. 82 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 - 83 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 84 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 85 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): 87 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. “ 91 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. 93 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 97 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 98 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. 99 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0446%3A1. Public record. Not legal advice.