Petition for Writ of Certiorari — Grimes v. Nottoway County School Board

— ee

% Sepreax Cour, Uo.

Py FILED

In The AUG 31 js7-

Supreme Court of the UnitdduBsates. 2s

October Term, 1971

2-368

No. 72-........

FLOSSIE V. GRIMES,

Petitioner,

v.

NOTTOWAY COUNTY SCHOOL BOARD,

THOMAS W. STAFFORD, SuPERINTENDENT,

ALTHEUS B. COUSINS, Principat,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Rospert M. ALEXANDER

2011 South Glebe Road

Arlington, Virginia 22204

Counsel for Petitioner

Hucu E. WATKINS

425 North Henry Street

Alexandria, Virginia 22314

Of Counsel

TABLE OF CONTENTS

Page

Opinions BELow 2

JURISDICTION 2

EE CII ctsesssecisninitsentiinerinieiniecnmeemnnnes 2

STATEMENT OF THE CAse ...... 3

Reasons RELIED ON For THE ALLOWANCE OF THe Wait ....... 5

REDO ESE TEE ot Le a il

APPENDIX

TABLE OF CITATIONS

Cases

Dent v. State of West Virginia, 129 U.S. 114, 121-122, 9 S.Ct.

231 (1888) 5

Ferguson v. Thomas, 430 F.2d 852 (Sth Cir., June 2, 1970) ...... 5, 10

Gouge v. Joint School District No. 1, 310 F. Supp. 984 (W.D.

Wis. 1970) 9

Greene v. Howard University, 134 U.S. App. D.C. 81, 412 F.2d

1128 (1969) 5

Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966) (en banc), cert.

denied, 385 U.S. 1003, 87 S.Ct. 17 L.Ed.2d 542 (1967) .......... 5

Lucas v. Chapman, 430 F.2d 945 (1970) (Sth Cir.) 20. 5

Perry, et al. v. Sindermann, 405 U.S. \e

United States Constitution

Fourteenth Amendment .................. 9

Statutes

Section 22-203, Code of Virginia 1950 as Amended (1963) ............ 7

Section 22-217.1 through Section 22-217.8 ........------...---+sseseseeeseeeeneee 7

In The

Supreme Court of the United States

October Term, 1971

FLOSSIE V. GRIMES,

Petitioner,

Vv.

NOTTOWAY COUNTY SCHOOL BOARD,

THOMAS W. STAFFORD, SuPERINTENDENT,

ALTHEUS B. COUSINS, Principat,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

To The Honorable The Chief Justice of the United States

and the Honorable Associate Justices of the Supreme

Court of the United States:

The Petitioner respectfully prays that a writ of cer-

tiorari issue to review the judgment of the United States

2

Court of Appeals for the Fourth Circuit entered on June 6,

1972, affirming the judgment entered against the Petitioner

in the United States District Court for the Eastern District

of Virginia, Richmond Division.

OPINION BELOW

The written opinion of the United States District Court

of the Eastern District of Virginia, Richmond Division,

entered January 12, 1971, is appended hereto.

The written opinion of the United States Court of Ap-

peals for the Fourth Circuit decided June 6, 1972, is ap-

pended hereto, affirming the lower Court.

JURISDICTION

The judgment of the United States Court of Appeals for

the Fourth Circuit sought to be reviewed was decided June

6, 1972.

The jurisdiction of this Court is invoked under Sections

1254 and 1651 (a) of Title 28 of the United States Code.

QUESTIONS PRESENTED -

I.

Whether A Nontenured Teacher Has An “Expectation Of Reemploy-

ment” Under The Policies And Practices Of The Defendant

School System.

Il.

Whether The Notice And Hearing Afforded The Plaintiff By The

Defendants Met The Minimal Standards Of Procedural Due

Process Of Law.

Ill.

Whether The School System Showed Cause For The Nonrenewal Of

Teaching Contract.

3

IV.

Whether The Plaintiff Was Given A Hearing Before A Tribunal

With Academic Expertise And The Appearance Of Impartiality.

V.

Did The Trial Court Err In Urging Trial Counsel To Stipulate That

The Only Issue Of The Trial Was Whether The Notice And

Hearing Constituted Minimal Standards Of Administrative Due

Process Of Law.

STATEMENT OF THE CASE

The Appellant taught public school in Nottoway County,

Virginia for seventeen years. Her Black Principal Altheus

B. Cousins, in April 1968, before the system was integrated,

declined to recommend renewal of her annual teaching

contract with the Nottoway County School Board. The

reasons for this adverse action are unclear. On May 20,

1968, the Appellant wrote a letter to the Superintendent,

Mr. H. L. Blanton, and requested “a meeting with the

School Board in order that our views may be reviewed and

considered by this body.” Further, said letter set forth

three specific points to be discussed and considered. See

Defendant’s Exhibit No. 1 in the Appendix. By letter dated

May 27, 1968, and received by her on or about May 28,

1968, from the Superintendent, the Appellant was notified

that “There will be a Special Meeting of the School Board

on Wednesday, May 29, 1968 at 7:30 P.M., for the specific

purpose of hearing your grievances resulting from your not

being reappointed by the School Board for the school year

1968-69. If you can be present at 7:30 P.M., you will be

placed first on the agenda.” Shortly before said meeting

the Appellant received a copy of a letter from Principal

Cousins to Superintendent Blanton dated May 29, 1968,

which stated, among other things, “We cannot get Mrs.

Grimes to conform to the type of program that we wish to

carry out at Luther H. Foster High School. Therefore, I

have not recommended her for re-employment at Luther H,

Foster High School.” Although this letter comments on

certain attributes of a teacher, it did not indict the Appel-

lant on any specific charges of commission or omission or

spell out the type of program that was being carried out at

Luther H. Foster High School.

The Appellant and her Counsel appeared at the School

Board hearing on May 29th. Statements were made by the

Principal and Superintendent. There was no transcript or

tape recording of this meeting. No format of a quasi-

judicial nature was followed. After hearing comments by

various persons at this meeting, the School Board meeting

was adjourned until June 13, 1968. When the School

Board convened on June 13, 1968, it voted unanimously not

to overide the decision not to issue the Appellant a con-

tract for the 1968-69 school year.

Appellant filed a Complaint for injunctive relief and

restoration of employment in the United States District

Court on November 21, 1969, under the Civil Rights Acts,

28 U.S.C. § 1343 (3) and 42 U.S.C. § 1983. A trial by the

Court was held on September 25, 1970. The Court entered

a final order denying Appellant relief and dismissing the

Complaint on January 12, 1971, and filed January 14, 1971.

From this final order the Appellant timely noted an appeal

to the United States Court of Appeals for the Fourth Cir-

cuit. On June 6, 1972, the Appellate Court confirmed the

ruling of the United States District. From this final order

the Appellant timely noted an appeal to the Supreme Court

of the United States.

5

REASONS RELIED ON FOR THE ALLOWANCE

OF THE WRIT

I.

Whether A Nontenured Teacher Has An “Expectation Of Reemploy-

ment” Under The Policies And Practices Of The Defendant

School System

A school board cannot act arbitrarily or capriciously in its

selection process of renewing a teacher’s contract. The

“right to teach” is a recognized “liberty.” The Fourteenth

Amendment protects employment pursuits as pronounced in

1888 in Dent v. State of W.st Virginia, 129 U.S. 114,

121-122, 9 S.Ct. 231, 233 (1888):

It is undoubtedly the right of every citizen of the

United States to follow any lawful calling, business or

profession he may choose . . . This right may in many

respects be considered as a distinguishing feature of

our republican institutions . . . The interest, or, as it is

sometimes termed, the “estate,” acquired in them—

that is, the right to continue their prosecution—is often

of great value to the processors, and cannot be arbi-

trarily taken from them, any more than their real or

personal property can thus be taken.

The Appellant had no tenure, however her long employ-

ment by the Appellee’s School Board by use of renewals of

annual contracts was sufficient to give her the necessary

expectancy of reemployment that constituted a protected

interest. Ferguson v. Thomas, 430 F.2d 852 (5th Cir.,

June 2, 1970) ; Greene v. Howard University, 124 U.S. App.

D.C. 81, 412 F.2d 1128 (1969); Johnson v. Branch, 364

F.2d 177 (4th Cir. 1966) (en banc), cert. denied, 385 U.S.

1003, 87 S.Ct. 17 L.Ed.2d 542 (1967); Lucas v. Chapman,

430 F.2d 945 (1970) (5th Cir.).

The Lucas case arising in Mississippi involves a school

teacher without tenure after eleven years in the system as a

~

6

successful teacher. His termination was the action taken by

his school board after receiving reports he had criticized the

school board and faculty members at the rump session of a

PTA meeting. Lucas filed a suit in the United States Dis-

trict Court for the Northern District of Mississippi seeking

injunctive relief of reinstatement or, alternatively, damages

on the ground that the contract was not renewed because of

exercise of right of free speech and that his rights to pro-

cedural due process has been violated. The Court denied

relief and the teacher appealed. The United States Court of

Appeals, Fifth Circuit, held that if a teacher with protectible

interest opposes his termination, he must be told the reason

and what supports the reason and given opportunity to

present his side, if he desires. The Court said further that

if reasons for terminating teacher’s employment are in non-

constitutional area, school board’s decision would be so

arbitrary as to be constitutional violation if it were wholly

unsupported by evidence. This case was remanded for a

hearing munc pro tunc before the school board after notice,

reasons and list of witnesses supporting board’s proposed

adverse ction.

In the instant case the Appellant is a teacher with twenty-

nine years experience, seventeen of which were successfully

completed in the Nottoway County School System. She

clearly had an expectation of reemployment under the poli-

cies and practices of the Defendant school system.

Il.

Defendants Met The Minimal Standards Of Procedural Due

Process Of Law

In Ferguson the Court spells out the standards of mini-

mum procedural due process when a teacher who is termi-

nated for cause opposes his termination.

7

Minimum procedural due process requires that :

“(a) he be advised of the cause or causes for his

termination in sufficient detail to fairly enable him to

show any error that may exist,

(b) he be advised of the names and the nature of

the testimony of witnesses against him,

(d) that hearing should be before a tribunal that

both possesses some academic expertise and has an ap-

parent impartiality toward the charges.”

Section 22-203 (1963) of the Code of Virginia was in

effect at the time of Appellant’s dismissal. It reads as fol-

lows:

22-203. Employment and dismissal of teachers. The

rey Lee heel mage Fao rn

intendent shall employ teachers and place them in ap-

propriate schools and shall dismiss teachers when de-

linquent, inefficient or otherwise unworthy.

There was no statutory or decisional Virginia law estab-

lishing procedures to effect the foregoing Code provision.

However, there was a proposed amendment which is now

§ 22-217.1 et seg. providing tenure and a format for dis-

missals. The new procedures require (a) written notice set-

ting forth reasons for dismissal, (b) at least a fifteen days’

written notice of time and place of hearing, if requested, and

(c) right to counsel, witnesses in teacher’s behalf and other

evidence. The legislature of Virginia believes the foregoing

to be minimal standards of procedural due process. Apply-

ing these standards to the Appellant’s case, we find that

there was no written notice to her setting forth reasons for

8

dismissal but only a notion by Principal Cousins about what

he thought a teacher should be. He mentioned in the May

29, 1968, letter to the Superintendent that the Appellant

did not conform to the pattern envisioned for his school, but

we do not know what that pattern is or if it is educationally

sound. Second, the Appellant was given one day or less to

respond between notice of hearing and hearing itself. This is

untimely notice. Thirdly, since the Superintendent and

Chairman of the School Board admitted in the record they

did not know what an adversary hearing was before the

Court defined it for them. Transcript, pp. 79 and 100.

Further, Mr. Oliver W. Hill, Attorney for the Appellant

at the May 29th school board meeting, stated that “no op-

portunity for such a hearing was ever established” to pre-

sent witnesses and evidence for the Appellant. Transcript,

page 21.

The Court below cannot equate the appearance on May

29, 1968 before the school board by the Appellant and her

Counsel to be any more than an informal effort of concili-

ation, but certainly not as due process adversary proceedings

because the notice and hearing afforded the Appellant did

not meet the minimal standard of procedural due process of

law. Counsel below never relinquished Appellant’s claim

that this meeting did not constitute minimal standards of

administrative due process of law.

Il.

Whether The School System Showed Cause For The

Nonrenewal Of Teaching Contract

A fundamental right of a public school teacher is a state-

ment of the reasons for a school board considering non-

renewal of a teaching contract, a notice of a hearing at

which the teacher can respond to the stated reasons, and the

9

actual holding of such a hearing with sufficient time for the

teacher to prepare a defense, obtain legal counsel, summon

witnesses and offer such evidence as would be required to

defend the proposed adverse action. Perry et al. v. Sinder-

mann, 405 U.S. ....., Gouge v. Joint School District No. 1,

310 F. Supp. 984 (W.D. Wis. 1970); and Johnson v.

Branch, 34 24 177 (1966). Both Roth and Gouge hold

that under the due process clause of the Fourteenth Amend-

ment, a decision not to retain a nontenured professor em-

ployed by a state or university or a public school teacher

may not rest on a basis wholly unsupported in fact, or on

the basis wholly without reason.

By no stretch of the imagination can one say Principal

Cousin’s letter dated May 29, 1968, was a bill of particulars

against the Appellant. Neither can charges be inferred from

the Appellant's letter requesting a meeting with the board

and to discuss three specific points.

We are compelled to argue that in the absence of a genu-

ine issue of material facts as to the adverse reason or rea-

sons for the nonrenewal of Appellant’s teaching contract,

she should be reinstated with all financial benefits restored

and credits for retirement.

IV.

Whether The Plaintiff Was Given A Hearing Before A Tribunal

With Academic Expertise And The Appearance Of Impartiality

A plain uncontradicted fact in this case is that both the

Superintendent and the Chairman of the Nottoway County

School Board had no understanding or comprehension of an

adversary proceeding as admitted to in the record. Tran-

script, pages 79 and 100. The record is bare as to specific

charges of nonprofessional conduct by the Appellant. The

Appellant should not have been placed in the position of

10

having to prove her qualifications as a teacher without a bill

of particulars. The Principal concluded that he could not

recommend the Appellant for re-appointment for the 1968-

69 school year and the Superintendent followed along with

this conclusion. The decision below comments on the pres-

ence of the Appellant and her Counsel at the hearing held

on May 29, 1968. The meeting held by the school board was

not a forum constituting minimal due process standards as

set forth in Ferguson.

Vz.

Did The Trial Court Err In Urging Trial Counsel To Stipulate That

The Only Issue Of The Trial Was Whether The Notice And

Process Of Law

Simple justice demands that hindsight be employed in

the instant case. At the trial, the presiding Judge was de-

termined to declare the issues in an overly simplified man-

ner. The judge’s direct question as to the issue placed the

Plaintiff's attorney in the posture of answering to a Court

formed proposition as to the issue while there was no time

or opportunity to think through clearly what the proposed

stipulation meant. The Court’s proffered stipulation was

entirely too narrow and the Appellant should not be bound

by it, having been a public school teacher for seventeen

years. During the past 18 years, approximately twelve

thousand Negro teachers and principals have been replaced

in the South. The techniques have been very subtle and the

hearings held below should not be a vehicle to dislocate the

Appellant from the teaching profession, without cause.

11

CONCLUSION

The Appellant did not waive any constitutional rights in

seeking a hearing as to why her teaching contract was not

renewed. She was discharged without being given a reason.

Accordingly, a writ of certiorari should be granted.

Respectfully submitted,

Hucu E. Watkins

425 North Henry Street

Alexandria, Virginia 22314

Rosert M. ALEXANDER

2011 South Glebe Road

Arlington, Virginia 22206

Counsel for Appellant

TABLE OF CONTENTS

App. Page

Complaint for Injunction 1

Order Dismissing Action 6

Notice of Appeal Sennsihinoanithenavintatnintvies 8

Order Extending Time for Docketing Appeal Record .................... 9

Plaintiff’s Letter to Superintendent un

Superintendent’s Letter to Plaintiff 11

Principal’s Letter to Plaintiff 12

Excerpts from Reporter’s Transcript :

Testimony of Attorney Oliver W. Hill 13

Testimony of Superintendent H. L. Blanton 13

Testimony of Richard Henry Lee, Chairman of School Board .. 15

Colloquy between Trial Judge and Counsel for both parties .... 15

Opinion by United States Court of Appeals for the Fourth

ee ee 18

COMPLAINT FOR INJUNCTION

Comes now the plaintiff, by counsel, and for cause of ac-

tion, alleges as follows:

1. The action arises under the Civil Rights Acts, 28

U.S.C.A. § 1343(3), and 42 U.S.C.A. § 1983.

2. From 1951 to 1968, a period of seventeen years, plain-

tiff was employed by the Nottoway County School Board as

an American Government teacher in the Luther H. Foster

High School in Nottoway County, Virginia. Plaintiff holds

a B.A. degree from Virginia Union University, Richmond,

Virginia and M.Ed. degree from Temple University.

3. In May of 1968, plaintiff was informed by her princi-

pal, Altheus B. Cousins, a defendant herein, that he was not

going to recommend to the superintendent (H. C. Blanton,

now retired was the superintendent at the relevant times

when this cause of action arose. He has now been succeeded

by Thomas W. Stafford, a party defendant herein.) that her

contract be renewed for the school year 1968-69 on the

ground that she could not conform to his system.

4. Defendant Cousins began his tenure as principal of

Luther Foster High School in the academic year 1966-67,

fifteen years after plaintiff had been teaching at Luther

Foster High School.

5. Plaintiff sought to have the then superintendent, H. L.

Blanton (now retired) to intercede in her behalf. Mr. Blan-

ton, after taking the matter under advisement, referred the

case to the Nottoway County School Board, indicating his

unwillingness to decide the matter through his offices.

6. On May 27, 1968, plaintiff was notified that a special

meeting of the school board was to be convened on May 29,

1968 in order to hear plaintiff’s grievances.

- —_——e

App. 2

7. Plaintiff appeared with counsel at the meeting in

which Mr. Blanton apprised the school board on the back-

ground, recommendations and considerations used in not

renewing plaintiff’s contract.

8. The board, after hearing plaintiff’s attorney request

for reconsideration of their action, postponed a decision

until June 13, 1969. At the June meeting, the school board

voted unanimously to refuse to override or set aside the

recommendation of Mr. Cousins.

9. Plaintiff admits that the relationship that existed be-

tween she and Mr. Cousins was strained and that there may

have been a personality conflict between them. However,

the situation which existed in Nottoway County school sys-

tem at the time her cause of action arose and which con-

tinues to exist within this school system were such that they

proliferated a minor disagreement between two intelligent

adults, into a major incident which finally resulted in plain-

tiff being deprived of a substantial right and privilege, to

wit: to pursue her teaching profession in Nottoway County.

The following factors, each of which is illegal and/or un-

constitutional in its own right, combined and compounded

resulting in an untenable situation for the plaintiff :

(a) The school board was not prepared to afford plain-

tiff a fair hearing because they were bound to uphold the

principal’s recommendation the same being tantamount to a

vote of confidence for him. Hence, plaintiff was denied a

fair and impartial tribunal to hear and pass upon her claims

and defenses.

(b) Nottoway County’s school system was then and still

remains segregated. Since Luther Foster High School is the

only black high school in the county, the only result of the

inability of plaintiff and defendant Cousins to get along was

App. 3

for plaintiff to lose her job since the prevailing segregation

of schools in Nottoway County made it impossible for her

to be transferred to a white high school.

10. The notice and hearing afforded plaintiff were in-

sufficient in law and therefore her right to substantive and

procedural due process was violated.

(a) The notice consisted of a letter dated May 27, 1968

advising plaintiff that she could appear before the school

board on May 29, 1968 to present her grievances. No

charges or specifications were contained in the letter. The

notice gave plaintiff less than twenty-four hours (she

didn’t receive the letter until May 28) to prepare her case.

(b) The notice did not apprise plaintiff of the procedures

or rules which would be followed in the schood board hear-

ing. She was not advised of her right to counsel, her right

to confront witnesses against her, or her right to have wit-

nesses in her defense present. Further, the Virginia legis-

lature did not provide teachers with a right to a hearing on

the question of contract renewal. The Nottoway County

School Board did not remedy this problem by providing a

local procedure for the administrative adjudication of con-

tract renewal controversies. Hence, plaintiff and her counsel

had no guidelines as to what to expect at the forthcoming

hearing.

(c) The hearing was not conducted in a manner best cal-

culated to protect the interests of plaintiff. No advance pro-

visions were made for the active and effective use of plain-

tiff’s counsel who accompanied plaintiff to the hearing, nor

was plaintiff advised of her right to have counsel present.

Her purpose for having counsel present was to lend dignity

to her purpose and perhaps impress upon the school board

members the importance which she attached to the hearing.

App. 4

(d) Plaintiff was led to believe that she had no right to

the hearing scheduled for her and the scheduled hearing was

merely an act of kindness or a gratuity bestowed on her by

the superintendent and the school board. Operating on this

premise, plaintiff instructed her counsel that the best ap-

proach would be a conciliatory one in which every effort

would be made not to offend or irritate the school board

members. Consequently, no objections to the legality or

sufficiency of the hearing were made, especially since the

school board’s decision was postponed until a subsequent

meeting. Plaintiff’s counsel did not appear at the subsequent

meeting where the decision was rendered.

11. The decision of the school board not to renew plain-

tiff’s contract has seriously jeopardized plaintiff's ability to

find similar and suitable employment in other nearby county

school systems. Plaintiff is faced with the real problem of

having to answer “yes” to the question, “Have you ever

been refused the renewal of contract?” This answer severely

prejudices her chances for gaining employment as a school

teacher in Virginia public secondary schools. The problem

is further exacerbated because plaintiff is still unsure of the

reasons why her contract was not renewed—save the fact

that she had a personality conflict and perhaps differences

of opinion with her immediate supervisor, Mr. Cousins. The

record of her hearing does not show the reasons for the

school board’s decision, nor does plaintiff have anything in

the way of a “bill of particulars” outlining the basis for her

dismissal. Hence, plaintiff is placed in the position of trying

to explain the reasons for her contract not being renewed

but having no record to substantiate her beliefs.

12. The refusal of the school board and the superintend-

ent of Nottoway County School System have effectively and

irrevocably prevented plaintiff from pursing her chosen

App. 5

profession. Unless this Court grants the relief requested

there exists no other adequate remedy for the irreparable

injury to which plaintiff is being subjected.

Wherefore, plaintiff prays that:

(1) This Court take jurisdiction of this controversy and

hear, as promptly as possible, this action and declare the

rights of plaintiff.

(2) The Court issue a temporary restraining order, pre-

liminary injunction and a permanent injunction enjoining

the defendants, their successors and subordinates, from re-

newing and/or issuing plaintiff a teaching contract for the

remainder of this academic school year 1969-70.

(3) The Court require defendants to establish a notice

and hearing format which comports with current concepts

of substantive and procedural due process.

(4) The Court require defendants to expunge from

plaintiff's records any reference to the action taken by de-

fendants in this matter unless and until defendants accord

plaintiff notice and a hearing which comport with due

process standards.

(5) For the plaintiff, costs of this action including rea-

sonable attorney’s fees.

(6) Such other and further relief as may be just, lawful

and equitable in the premises.

/s/ JeRoyd W. Greene, Jr.

JeRoyd W. Greene, Jr.

Attorney for Plaintiff

12 West Leigh Street

Richmond, Virginia

4

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App. 6

ORDER

Acts, 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983.

All preliminary questions have heretofore been disposed

of—the question before the undersigned being limited to

whether the notice and hearing which was afforded the

plaintiff comports with current minimal standards of ad-

ministrative due process of law.

Upon consideration of the evidence heard, the argument

of counsel and authorities cited, the Court is of the opinion

that the notice and hearing afforded the plaintiff fully com-

plied with the requirements of the then Virginia and federal

law.

There was no real dispute in the facts. The plaintiff had

taught in the Nottoway County schools for a period of

seventeen years. Before the expiration of her then existing

contract she was told by her principal that he would not

recommend her for reappointment for the coming school

year. Thereafter the plaintiff had several discussions with

her principal and the school superintendent in re his pro-

posed recommendation and his reasons for not recommend-

ing her reemployment.

In May of 1968 the plaintiff, by letter, requested a meet-

ing with the School Board, specifying the points she desired

to have discussed and considered. Pursuant to her request,

the School Board called a special meeting for the purpose

of hearing what she had to say.

The plaintiff was advised of the calling of this special

School Board meeting—and she appeared in person and by

counsel. The superintendent reiterated his recommendation

publicly—the matter was fully discussed before the Board

—and they listened to everything the plaintiff and her

counsel had to say.

App. 7

Plaintiff's counsel asked the Board to reconsider their

action and the matter was deferred until June 13, 1969.

In the interim the superintendent, at the request of the

plaintiff, mailed to her counsel a copy of the principal's

letter in which he outlined the reasons for his recommenda-

tion for not giving her a new school contract. It should also

be noted that the School Board at one of its regular meet-

ings entertained a petition and heard from a delegation in

re giving the plaintiff a contract for the coming school year.

The School Board reconvened on June 13th as scheduled ;

however, neither the plaintiff nor her attorney attended this

meeting. Upon further discussion the Board unanimously

voted to follow the recommendation of the principal which

the superintendent had approved, namely, not to give the

plaintiff a teaching contract for the coming school year.

Although the plaintiff and the principal are Negroes and

the teacher who took her place is a Negro, it is not claimed

that race was a factor in the School Board’s action. In fact,

the plaintiff by her counsel admits the principal was justi-

fied in his recommendation and that the School Board was

justified in not giving her a new contract.

Although the School Board was not required to give the

plaintiff a hearing re whether or not they were going to

give her a teaching contract for the coming school year,

under the then Virginia law they voluntarily did so. They

convened a special hoard meeting so that the members

could give their undivided attention to her complaint—they

heard everything she had to say and were willing to listen

to any other persons she wanted them to hear—The school

superintendent stated publicly the reasons for not recom-

mending that she be rehired. They allowed her counsel of her

own choosing and they gave him every opportunity to ques-

tion the superintendent and/or any of the board members.

App. 8

They deferred their final vote for some two weeks at his

request. In fact, there is not one word of evidence in this

case indicating that the plaintiff was denied the right to

literally do anything she wanted to do or to say anything

she wanted to say in respect to the subject matter under

consideration. Administrative due process was not lacking

in the premises.

This case, therefore, should be dismissed, and

It Is So Ordered.

The Clerk will send a copy of this order to all counsel of

record.

/s/ Oren R. Lewis

United States District Judge

At Alexandria

January 12, 1971

NOTICE OF APPEAL

Notice is hereby given that Flossie V. Grimes, Plaintiff

above named, hereby appeals to the United States Court of

Appeals for the Fourth Circuit from the final order of dis-

missal entered in this action on the 14th day of January,

1971.

That among other things the reasons for noting this ap-

peal are:

1. That the Court erred in dismissing the complaint filed

herein because a nontenured teacher has an “expectation of

reemployment” under the policies and practices of the De-

fendant school system.

2. That the notice and hearing afforded to the Plaintiff

by the Defendants did not meet the minimal standards of

procedural due process of law.

3. That the school system failed to show cause for the

App. 9

nonrenewal and give the teacher a hearing before a tribunal

with academic expertise and the appearance of impartiality.

Respecfully submitted,

/s/ Hugh E. Watkins

Hugh E. Watkins

425 North Henry Street

Alexandria, Virginia 22314

/s/ Robert M. Alexander

Robert M. Alexander

2011 South Glebe Road

Arlington, Virginia 22204

Attorneys for the Plaintiff

Dated: February 9, 1971

At Alexandria, Virginia

ORDER EXTENDING TIME FOR DOCKETING

APPEAL RECORD

It being represented unto the court that further time will

be required within which to prepare and file the appeal

record in the United States Court of Appeals for the Fourth

Circuit,

It is OrpERED that the time for filing and docketing the

appeal record in the appellate court be and the same hereby

is, extended to and including ninety days from the date the

last notice of appeal was filed in this action.

Let copies hereof be forwarded to counsel of record and

to the official court reporter.

/s/ Robert R. Merhige

United States District Judge

Dated:

March 9, 1971

App. 10

PLAINTIFF'S LETTER TO SUPERINTENDENT

Box 262

Amelia. Virgini

May 20, 1968

Mr. H. L. Blanton

Division Superintendent of Schools

Nottoway County

Nottoway, Virginia

Dear Mr. Blanton:

I have been informed verbally by Mr. Cousins that my

request concerning reappointment has not been recon-

sidered. In so far as I find it difficult to equate the reasons

given not to recommend with the action taken, I am asking

if you will please arrange a meeting with the School Board

in order that our views may be reviewed and considered by

this body.

Specific points listed below are ones which I would like

discussed and considered :

1) The actual number of pupils referred to the office,

instead of being released in the halls at will, has been

small. It did happen, however, that those who persisted

in obstructing teaching-learning procedures were re-

ferred more than once.

2) The reasons attempts were made, on my part, to

keep unscheduled pupil-teacher-principal talks brief by

supplying written description was that to have done the

opposite would have meant leaving a group unsuper-

vised at a time psychologically inappropriate.

3) Pupils who might have inferred any dislike about

how tueir work is evaluated have been those who were

using work-avoidance and defense mechanisms.

App. 11

With the encounters I am experiencing, I shall most cer-

tainly be able to envision and implement workable solutions

concerning the above within the framework of the present

arrangement.

If my request for reappointment has not been favorably

reconsidered, please advise when a conference with the

School Board will be arranged.

Yours very truly,

/s/ Flossie V. Grimes

(Mrs.) Flossie V. Grimes

SUPERINTENDENT'S LETTER TO PLAINTIFF

NOTTOWAY COUNTY PUBLIC SCHOOLS

Notroway Court House, VIRGINIA

H. L. Blanton, Superintendent

May 27, 1968

Mrs. Flossie V. Grimes

Luther H. Foster High School

Nottoway, Virginia

Dear Mrs. Grimes:

There will be a Special Meeting of the School Board on

Wednesday, May 29, at 7:30 P.M. for the specific purpose

of hearing your grievances resulting from your not being

reappointed by the School Board for the school year 1968-

69. If you can be present at 7:30 P.M., you will be placed

first on the agenda.

Sincerely yours,

/s/ H. L. Blanton

H. L. Blanton, Division Supt.

Nottoway County Schools

HLB/hp

App. 12

PRINCIPAL’S LETTER TO PLAINTIFF

LUTHER H. FOSTER HIGH SCHOOL

Office of the Principal

Notroway, VirGINIA 23955

May 29, 1968

Mr. H. L. Blanton, Division Superintendent

Nottoway County School Board

Nottoway, Virginia

In regards to Mrs. Flossie V. Grimes, who I have not

recommended for reappointment at Luther H. Foster High

School for 1968-69.

I believe, the teacher is a leader, a planner, and is an over

all coordinator of activities. It is her job to bring all factors

that contribute to worthwhile learning together and apply

them to the teaching and learning situation as efficiently as

possible. Good teaching is the best means of preventing poor

student-teacher relations. I think boredom is the greatest

single cause of disciplinary problems. The teacher who meets

the needs of her pupils through a good instruction program,

she prevents disciplinary problems.

The teacher is an administrative worker who must be

concerned with a great deal of routine. There are records to

be kept, regulations to be followed, policies to be carried out,

reports to be made, money to be collected, projects to be

supported, arrangements to be made and a host of other

activities, but the teacher is first of all a counselor, an under-

standing and helpful friend of his pupils. There are individ-

ual differences to be accounted for; need for sympathy and

understanding; need for love and need for appreciation, en-

couragement, and guidance. The ultimate goal is self control.

We cannot get Mrs. Grimes to conform to the type of

«-

_ —

App. 13

pr that we wish to carry out at Luther H. Foster High

School. Therefore, I have not recommended her for re-

employment at Luther H. Foster High School.

Yours very truly,

/s/ A. B. Cousins

A. B. Cousins, Principal

ABC/cme

EXCERPTS FROM REPORTER’S TRANSCRIPT

Testimony of Attorney Oliver W. Hill

[rr. Pp. 21]

By Mr. GREEN:

Q To repeat the question, what specific allegations, if

any were made by Mr. Cousins besides the reading of that

document ?

A There was some discussion about Mrs. Grimes send-

ing pupils to his office and he did, as I recall, indicate that

she probably didn’t maintain proper discipline.

Q Was there an attempt by Mrs. Grimes to have you to

subpoena or to otherwise call witnesses in her behalf?

A We weren’t granted a hearing for that purpose.

There was no opportunity for that. I mean I raised the ques-

tion that we should have the opportunity to bring in other

members of the faculty, students and everybody else in-

volved, but as I say no opportunity for such a hearing was

ever established.

* * *

Testimony of Superintendent H. L. Blanton

[tR. pp. 79-80]

By Mr. GREEN:

Q Do you remember Mr. Hill suggesting to the Board

App. 14

that a different type of hearing should be held under the

circumstances with Mrs. Grimes?

A No, I don’t. I remember Mr. Hill saying to our

Board and all present that he felt that a conciliatory ar-

rangement would be very important in this situation.

Q But you don’t deny that he asked for a more formal

kind of hearing mechanism before the determination?

A Idon’t recall that he asked for that. ' am confident

that if he had asked for it the School Board would have

asked for it and asked him to set the date for it.

Q Why would they have done that, Mr. Blanton, when

in twelve years as you testified, there was never an attempt

to hold an adversary hearing?

A This adversary hearing is something new to me. My

interpretation and definition of a hearing before a school

board prior to today or prior to this cross-examination and

being under oath and making records and so forth, has been

to have a complainant come into the school board and

submit whatever complaint they had and to bring in the

other people but no sworn testimony or anything like that

connected with it.

Q Would Mr. Hill have been allowed to have had that

kind of hearing?

A_ Yes, sir.

THE Court: In other words, would he have been allowed,

if he requested it, to have you and all other witnesses sworn,

put under oath, is what he’s saying? You don’t know

whether he would or not; it hasn’t ever been done, you say.

THE WITNEss: No, sir.

i oe

App. 15

Testimony of Richard Henry Lee, Chairman of School Board

[rr. P. 100]

By Mr. GREEN:

Q Prior to that did you know it?

A I may have read something in the paper but it didn’t

impress me. I knew there was a formality of it of becoming

law, but I’m just a layman.

Q Did you know what an adversary hearing was before

the Judge explained it to you?

A No, sir.

* * *

Excerpt From Transcript Of Colloquy Between Trial Judge

And Counsel For Both Parties

[TR. PP. 56-59]

Mr. GREEN: The fact we are alleging is that the notice

which is supposed to set out in some particularity—

THE Court: To save time, so we can both understand

each other, are you willing to concede for the sake of this

hearing—I mean I will not limit you to anything else—that

the question of whether they had grounds for not renewing

her contract is not before the Court; the sole question that

you want this Court to determine is whether they furnished

her with an adversary-type hearing before not renewing her

contract.

Mr. GREEN: Yes, sir, that is the only question before

the Court.

THE Court: With that stipulation there’s no use to offer

it, Mr. Gray. He is conceding there isn’t any question but

what they had the right.

App. 16

Mr. Gray: If your Honor please, I point out two things

in connection with the stipulation: Number one, he has

very carefully gone into her background including all of her

degrees, and so forth, to show her qualifications, so I take it

now that that is immaterial.

THE Court: It is immaterial as far as I’m concerned.

Mr. Gray: Number two,—

THE Court: I mean we are conceding for the sake of

argument—

Mr. Gray: That they were justified in not re-employing

her?

THE Court: That’s right. It goes no further than this,

Mr. GREEN: That is exactly why I’m asking you not to

sit in substitution for her judgment.

Mr. Gray: If your Honor please, one further point I

think must be stipulated out of this case. They have alleged

that because the schools in Nottoway County were segre-

gated and the faculties were segregated that it was due

merely to a personality conflict between Mr. Cousins.

THE Court: He has expressly stipulated and he with-

drew his own questions that he is not raising a racial ques-

tion. He says there are no racial overtones in this case.

Mr. Gray: If your Honor please, it is agreeable to me,

but I wanted it clear in the record.

Tue Court: He made it clear and the Court so found.

Mr. Gray: If I could just put this in, your Honor, that

they allege, you see, that because there was one white high

school and one colored high school this personality conflict

prevented her—

App. 17

THE Court: I understand that, but I wouldn’t let him go

into it when he said there were no racial overtones in this

case, and he said he withdrew that. I said lawyer talk

doesn’t disturb me that it is in the pleadings. I’m interested

in the issue being tried.

All right.

The sole question that is reserved for determination in

this court on the plaintiff’s complaint by his own request is

whether or not the School Board furnished an adversary-

type hearing as a prerequisite in not renewing her contract;

is that right?

Mr. GREEN: That’s correct, your Honor.

Tue Court: That is all he wants this Court to deter-

mine, Mr. Gray, so that’s all I will hear.

App. 18

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 71-1417

FLOSSIE V. GRIMES,

Appellant,

-versus-

NOTTOWAY COUNTY SCHOOL BOARD,

THOMAS W. STAFFORD, Superintenvenrt,

ALTHEUS B. COUSINS, Parinctpat,

Appellees.

Appeal from the United States District Court for the

Eastern District of Virginia, Richmond Division.

Oren R. Lewis, District Judge.

(Argued October 5, 1971. Decided June 6, 1972.)

Before BoremMan, Senior Circuit Judge, Russet, Circuit

Judge, and Dupree, District Judge.

Robert M. Alexander, Arlington, Virginia (Hugh E. Wat-

kins, Alexandria, Virginia on the brief) for appellant;

Frederick T. Gray, Williams, Mullen & Christian, Rich-

mond, Virginia (Copeland E. Adams, Blackstone, Vir-

ginia on the brief) for appellees.

App. 19

Dupree, District Judge:

Alleging a violation of her constitutional rights in its re-

fusal to renew her contract of employment for the school

year 1968-69, the plaintiff, a non-tenured high school

teacher, brought this action against the defendant School

Rights Act of 1871, 42 U.S.C. § 1983, seeking injunctive

relief, back pay, attorney’s fees and court costs. At the

trial the plaintiff conceded that the failure to renew her con-

the reasons for the principal’s decision were explained to

plaintiff. By letter to the superintendent dated May 20,

1968, plain*iff asserted that she was unable to reconcile these

reasons with the severity of the action taken and she re-

quested a meeting with the School Board “in order that our

views may be reviewed and considered by this body.” In

this ietter she listed the three subjects she wished to have

discussed and considered." Responding to this request by

were:

1. The actual number of

App. 20

letter dated May 27, 1968, the superintendent informed

plaintiff that a special meeting of the School Board had

been called for May 29 “for the specific purpose of hearing

your grievances.”

The meeting was held as scheduled, and the plaintiff ap-

peared with her counsel. The matter was given a full airing.

The complaints made against plaintiff by the principal were

general in nature and seemed to relate for the most part to

disciplinary problems. There was no suggestion that plain-

her counsel stated their views. At the request of plaintiff's

counsel the School Board’s decision was deferred until the

next regular meeting of the Board which was held on June

13, 1968.

Plaintiff and her attorney again appeared at the June

meeting, but they tendered no witnesses, offered no addi-

tional evidence and did not seek to question further the

principal and superintendent. They did not request a further

hearing or postponement of decision. The School Board

thereupon voted unanimously to follow the recommenda-

tions of the principal and superintendent and not to renew

plaintiff's contract for the ensuing year. This suit followed.

There is a divergence of authority in the circuits on the

question of the right of a teacher without tenure to a

ecu eee Os 0 ds mentee

tne cal ~ ee

cha beg ye SEPSE UTS gs

Hina

jie! real

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App. 22

be given adequate notice, a specification of the charges

against her, an opportunity to confront the witnesses

against her and an opportunity to be heard in her own de-

fense. Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970),

But it is equally true that “| T]he sufficiency of the proceed-

ings employed must be judged in the light of the parties,

the subject matter and the circumstances involved,” and

that “[W]hen no established procedures exist the school

may adopt any method that is adequate to comply with the

above minimums.” /d. at 856.

Admittedly the first meeting of the School Board was

called on short notice and at best it was an informal forum

for the airing of plaintiff’s grievances. There was no statu-

tory procedure prescribed, however, and the evidence was

that it was the only procedure the Board had ever employed

in such cases. Moreover, the plaintiff herself had requested

this meeting, and she was able to attend in person and with

counsel. No objection was raised as to insufficiency of no-

tice, and any such objection must now be held to have been

waived.

The reasons for the failure of the principal and super-

intendent to recommend plaintiff's reappointment apparently

were not reduced to writing until the day of the School

Board meeting, but the evidence was uncontradicted that

she had been given the reasons orally. Conclusive evidence

of this is to be found in the statement in her letter re-

questing the meeting that she found it difficult “to equate

the reasons given not to recommend with the action taken.”

On cross-examination the Chairman of the School Board who

testified as a witness for defendants professed unfamiliarity with the

meaning of “adversary hearing” and “due process,” prompting the

district judge to observe with respect to the latter than “an awful

lot of lawyers and an equal number of judges are having an extreme

difficulty with it.

App. 23

At no time does it appear that she or her attorney re-

quested a written specification of the charges agai

The only two witnesses appea:ing against the

the district court’s findings that the plaintiff had ample op-

portunity to question them.°

The same is true of the court’s findings that plaintiff

was permitted to develop her own case fully. She did not

produce witnesses in her own behalf, but she had oppor-

tunity to do so both at the first meeting and at the second

meeting which was held two weeks later." She and her

App. 24

counsel were afforded ample opportunity to be heard

each of the two meetings.

We conclude that if plaintiff was entitled to a hearing,

the procedures employed in the two meetings of the Schoal”

Board comported fully with due process principles. This”

accords with the results reached by other courts faced with

similar fact situations.* AFFIRMED.

* Toney v. Reagan, 326 F. . 1093 (N.D. Cal. 1971) ; Worth

‘ . Jon 0. 16, 316 F. Supp 808 (E.D. Wis.

I ); Romsey v. Hopkins, 320 F. 5 "a7 (ND. Ala. 1970,

modified on other grounds, 447 F 2d 128 ( n Cir. 1971).

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