North Carolina Teachers Association and Gaines W. H. Price v. The Asheboro City Board of Education, a Public Body Corporate

393 F.2d 736, 9 Fair Empl. Prac. Cas. (BNA) 1097

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 8, 1968
• Docket: 11121
• Status: Published

Opinions

WINTER, Circuit Judge.

Recently, in Wall v. Stanly County Board of Education, 378 F.2d 275 (4 Cir. 1967), we had occasion to restate the requirements of the Fourteenth Amendment in regard to teacher displacement and discharge upon the reorganization of a school system to eliminate racial discrimination.¹ In this case, we are asked to decide whether the rights of Negro teachers in the nine schools comprising the school system of The Ashe-boro City Board of Education, a public corporation of the State of North Carolina, were violated, generally, when the beginning steps toward racially desegregated schools were taken in the school year 1965-66, and in particular, whether nine Negro teachers who were not reemployed for the school year 1965-66 are entitled to personal relief. Finding that no one had been denied due process of law or equal protection of the laws, the district court refused injunctive relief and dismissed the amended complaint.² We reverse and remand the case for further proceedings.

The essential facts, as found by the district court, are set forth fully in the court’s opinion, 259 F.Supp. 238 (M.D.N.C.1966). Briefly stated, it appears that prior to the school year 1965-1966, defendant operated nine racially segregated public schools — five elementary schools, two junior high schools, one senior high school and a union school, Central High School, consisting of Grades 1-12. All Negro students, teachers and professional personnel were assigned to Central High School; all white students and teachers were assigned to the other schools in defendant’s system.³

In February, 1965, defendant adopted a plan of compliance, pursuant to the requirements of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000a et seq., under which Central High School was converted into an elementary school, consisting of Grades 1-6; approximately fifty-four Negro students, who lived outside of the City of Asheboro and who previously attended Central High School, were no longer permitted to do so; geographical zones were established for the elementary-schools to which elementary students were assigned on a non-racial basis, with elementary students being allowed to transfer to schools other than the one to which they were initially assigned; and all junior and high school students were assigned on a non-racial basis to the two junior high schools and one senior high school.

When Central High was converted from an all-Negro union school into an integrated elementary school its faculty allotment was reduced from 24 to ll.⁴ The faculty allotments of some of the other formerly white schools were increased, although the total allotment of teachers for the system was reduced from 209 in the 1964-65 school year to 206 in the 1965-66 school year.⁵ For the school year 1965-66, 35 new teachers were employed.

After it was determined that the all-Negro faculty at Central High would be reduced in number by abolition of the junior-senior high school prgram, the qualifications of the faculty members, no longer needed at Central High, were compared within the area of their certification⁶ to the qualifications of other faculty members in the same area of certification within the entire system. This comparison was made prior to May, 1965, on the basis of principals’ recommendations and written evaluations, first instituted in the spring of 1965. Prior to the 1965-66 school year and, therefore, prior to the written evaluations previously mentioned, no written criteria for evaluating teachers under consideration for employment or reemployment were maintained.

On May 14, 1965, a letter was written and sent to almost all⁷ Negro teachers on the junior-senior high school faculty at Central High School (10 in number), advising them that the defendant could not offer them a contract beyond the 1964-65 term, but that the applications of the teachers to whom the letter was mailed would be kept on file for consideration as vacancies arose, if they so desired. No white teachers received this letter, and white teachers who, for cause, were not to be rehired for the next school year were so notified prior to May 14, 1965. Before the May 14 letter, Negro and white teachers who were considered favorably for reemployment, and for whom a vacancy existed for the next year, had been mailed a letter containing an option to be completed and returned to defendant, indicating whether the teacher wished to resign, retire or be considered for employment.⁸

The teachers to whom the letter of May 14 was sent were not offered reemployment for the year 1965-66, but were to be considered for reemployment only as vacancies within the scope of their certifications arose; even then their qualifications as teachers were compared to the qualifications of new applicants. Other teachers in the system are and were generally rehired each year and not required to meet this test, unless they achieved retirement age or unless good cause adversely touching upon their professional qualifications arose?

Although it was originally contemplated that more than nine Negro teachers would not be reemployed, in fact, only nine, who were not reemployed, complain of a denial of their rights in this proceeding,^{9 10} eight of whom are high school teachers and one of whom is an elementary school teacher. We turn to the specific facts relating to each of the nine:

(a) Gaines W. H. Price. Mr. Price is the holder of a Bachelor’s degree and a Class A certificate in music and science. He had seven years total teaching experience, three years with defendant’s system. His primary work was that of a band director.

No new band directors were hired, and Mr. Price was compared with Messrs. Joseph B. Fields and H. E. Harrington, who were band directors. Both Fields and Harrington had Master’s degrees with graduate certificates in music. Fields had been with the defendant’s system nine years, and Harrington three years. The band Fields organized and conducted received the top rating of “superior” in a state competition for each of the years that Fields was the director.

New teachers in science were employed. Price was not seriously compared to them because he was treated as a band leader, notwithstanding his certificate in science, although it is claimed that, on comparison, the qualifications of the new teachers exceeded his.

(b) Jackie E. Kilgore. While Mr. Kilgore was not reemployed for the 1965-66 school year, the record is undisputed that he accepted employment in another school system before he was sent the May 14, 1965 letter.

(c) Miss Pearline L. Palmer. Miss Palmer held a Bachelor’s degree and a two-year probationary Class A certificate in library science, renewable upon her demonstrating an improved average on the National Teacher Examination for renewal of her certificate. She had only one year’s teaching experience. While she was compared with other librarians, her resignation was requested* because of her unsatisfactory work. Notwithstanding the request for her resignation, she was asked, after May 14, 1965, if she would be interested in being considered for a library position which was anticipated to become available. According to the Superintendent of Schools, this inquiry was made of her “in spite of the fact that her record of performance with us was only poor, but to be sure that we didn’t overlook any application which she might wish to make.” Miss Palmer replied that she would not care to be considered.

(d) Miss Sarah I. Peterson. Miss Peterson held a Bachelor’s degree and a Class A certificate in business education, and had two years’ teaching experience. She taught the eighth grade, half-time, and commerce. She was considered for reemployment only as a teacher of business, and she was compared with Mrs. Anne Moore, Mrs. Ernestine D. Presnell and Miss Stella Jane Walker. Mrs. Moore holds a Bachelor’s degree and a Class A certificate in business education, and had fifteen years’ experience in teaching. Mrs. Presnell held a Master’s degree and graduate certificate in business education, and had four years’ teaching experience. Miss Walker held a Bachelor’s degree and a Class A certificate in business education, and had one year’s teaching experience. The Superintendent of Schools testified that he considered Miss Walker “considerably above average for a person with the experience she has had,” while Miss Peterson was considered only of “average or less” ability. While Miss Walker’s overall written evaluation by her principal was “Average,” as was Miss Peterson’s, Miss Walker was rated “Above Average” on three of the five criteria used for purposes of evaluation and her performance provoked the comment “1st year teacher — is developing fast.” Miss Peterson was rated “Average” on each of the same criteria. No new teachers were hired in business education. New eighth grade teachers were employed, but they held certificates entitling them to teach eighth grade subjects.

(e) Louis H. Newberry. Mr. Newber-ry held a Master’s degree, graduate certificate in counseling, and either a graduate or Class A certificate in science and social studies. He had thirteen years’ experience in teaching and counseling. Mr. Newberry utilized one-half of his time in counseling and the other one-half teaching the eighth grade.

No new counselors were employed, and, as a counselor, Mr. Newberry was compared to, and found not as qualified as, Mr. M. R. Prillaman, who held a Master’s degree and graduate certificate in counseling, and had nine years’ experience as a counselor, and Mr. Joseph R. Burns, who held a Master’s degree and a graduate certificate in counseling, and had eleven years’ total experience in teaching, four of which was devoted exclusively to counseling.

New teachers were employed in science and social studies. Mr. Newberry was considered for employment in this area of his certification, but his qualifications were thought less than those of new applicants and those of existing teachers in science and social studies. At the trial testimony was adduced from the Superintendent of Schools to show that Mr. Newberry had presented three worthless checks to the school system and to citizens of the community. The Superintendent had not mentioned this matter in his earlier discovery deposition when he discussed the reasons why Mr. Newberry was not rehired, and he characterized it at the trial as only an “annoying habit.” No claim was made that this was sought to be made the basis for disciplinary action or discharge prior to the reduction in teaching personnel at Central High School; indeed, Mr. New-berry was recommended for reemployment by his principal. The documentary proof in the record shows that Mr. New-berry was not employed because of the absence of a vacancy for a counselor.

(f) Mrs. Blondie J. Segers. Mrs. Se-gers held a Bachelor’s degree and a Class A certificate in music. She had a total of three years’ experience, and spent half of her time teaching music and the other half teaching the seventh grade. No new music teachers were hired, and Mrs. Se-gers was compared to, and found less qualified than, Mrs. Louise Thomas, Mrs. Rose Patterson, Mrs. Marian Felton and Mr. John Allen. All of these other music teachers, except for Mrs. Patterson, had more advanced degrees, more advanced certificates, and greater teaching experience; and Mrs. Patterson, who had the same degree and teaching certificate as Mrs. Segers, had over three times as much experience as Mrs. Segers. Specifically, Mrs. Thomas held a Master’s degree and a graduate certificate in music and had thirty years’ experience; Mrs. Patterson held a Bachelor’s degree and a Class A certificate in music and had ten years’ experience; Mrs. Felton held a Master’s degree and a graduate certificate in music and had eight years’ experience; and Mr. Allen held a Master’s degree and a graduate certificate in music and had seven years’ experience. Mrs. Segers was not considered for reemployment as a seventh grade teacher. New seventh grade teachers were employed, but they held certificates entitling them to teach seventh grade subjects.

(g) Mrs. Marietta W. Foster. Mrs. Foster held a Bachelor’s degree and a Glass A certificate in home economics and home science. She had thirteen years’ experience, two or three in the Asheboro school system. While Mrs. Foster was compared with existing as well as new home economics and home science teachers, she received the May 14, 1965 letter for the reason, undisputed in the. record, that hers was a vocational position, that she had had poor ratings for the previous two years from her state supervisor, and that her state supervisor said there was very much to be desired. Also undisputed is the testimony of the City Superintendent that, in view of these reports, the system “couldn’t have kept Mrs. Foster under any circumstances.”

(h) Mrs. Janie A. Brooks. Mrs. Brooks held a Bachelor’s degree and a Class A primary certificate. She had ten years’ teaching experience, two or three in the Asheboro system, and generally taught the first grade. The record discloses that, because of an adverse recommendation of the Director of Elementary Education, Mrs. Brooks’ resignation was requested. The record shows also that, while she may have been recommended by her principal, his recommendation would not have been afforded much weight, with some justification, because the principal, in turn, was moved to resign to forestall his own discharge for cause.

(i) Charles Holly. Mr. Holly held a Bachelor’s degree and a Class A certificate in industrial arts. He had fourteen years’ teaching experience. The record is singularly bare as to any non-discriminatory reason why Mr. Holly’s contract was not renewed, while the contracts of two other white industrial arts teachers, Edward R. Sugg and Joe V. Trogdon, both of whom had Bachelor’s degrees and Class A certificates in industrial arts, but who had only five and two years’ teaching experience, respectively, were renewed. Indeed, the City Superintendent of Schools testified that he considered Mr. Holly a very good teacher, although not better qualified than Sugg and Trogdon. Mr. Holly was sent the May 14, 1965 letter. Later, in June, 1965, a vacancy arose and, when Mr. Holly was offered the position, he did not accept.

Viewed against the background of the long history of racial discrimination and the presumption of discrimination which arose from the sudden decimation in the ranks of Negro teachers from the desegregation of Central High, Chambers v. Hendersonville City Board of Education, 364 F.2d 189 (4 Cir. 1966), we conclude from the facts stated that plaintiffs have established a denial of due process and of equal protection of the laws.¹¹ As in Chambers, the record shows that what occurred proceeded from the erroneous premise that when Central High was reconstituted to eliminate its all-Negro junior and senior high program, the Negro teachers who theretofore provided that teaching service lost their jobs — “teaching the Negro pupils” —and stood in the position of new applicants for employment.

Teachers Price and Newberry were clearly denied equal protection, in that they were required to pit their qualifications against those of new applicants to teach science and social studies, respectively, while no white teacher teaching either of these subjects was forced to run this gamut in order to be retained in the system. When a system’s needs change as a result of compliance with the basic law of the land outlawing racial discrimination, the equal protection clause will not permit the teachers so displaced to be treated as new applicants to the system, unless all teachers, including those to be retained, are so treated. Those displaced teachers, absent good cause for the refusal to rehire, such as age or poor professional performance, must be given the same preference as to reemployment as that given to teachers not so displaced. Thus, we hold that when the constitutional requirement of racial equality compels realignment of the allotment of teachers, that realignment may not serve as a vehicle for other forms of discrimination, and that, accordingly, defendant should not have compared the qualifications of Price with the new applicants for science teaching positions, when those positions became available, but should have offered the ■opportunity first to Price. Only if and when he declined employment should new .applicants have been considered. Similarly, Newberry should have been granted first opportunity to return to a position of teaching social studies, and only if he declined employment should new .applicants have been considered. On this record we regard as pretextuous the attempted justification of the refusal to rehire Newberry for passing bad checks. Late assertion of the reason, its evident minimal weight, and, in the face of a recommendation for reemployment, the absence of any proof to show that it had been treated as a cause for disciplinary action make it lacking in substance.

What we have said in the cases ■of Price and Newberry makes it clear -that equal protection was violated also as to Peterson and Segers. While no new teachers were hired in preference to them, since no positions opened in the fields of their certifications, the defendant made it plain that they would be considered only on a comparative basis with new applicants. So to treat teachers displaced, when those retained were not so treated or compared, would violate equal protection. Notwithstanding that there was no system of tenure, defendant has never required any teacher not overage and not having an unsatisfactory record, to have his qualifications compared with those of new applicants as a condition precedent to renewal of his contract. Equal protection demands no less when a teacher’s contract is not renewed because of a lack of position resulting from the elimination of racial discrimination, when a vacancy, in his area of certification, arises.

Our finding of denial of equal protection as to Peterson and Segers is confined, however, to the failure to reemploy them in the area of their certifications. It is true that they taught, respectively, the eighth and seventh grades, half-time, although they were not certified so to do, and that new eighth and seventh grade teachers, certified to teach those grades, were employed. Our analysis of the record shows that Peterson and Segers were in this regard unique. Neither before nor after the beginning of desegregation of the Asheboro schools were teachers employed to teach all of the subjects of an entire grade when they held only a certificate to teach a single subject or subjects, although the record does disclose several instances where a teacher was employed to teach a single subject outside of the area of his certification. North Carolina law does not contemplate that a teacher shall teach outside of the area of his certification, except temporarily on an emergency basis.¹² We are told in oral argument that restriction to the area of certification is an important factor in school accreditation, and that the Asheboro school system is presently fully accredited. In short, the record does not develop the extent to which, in law, teachers having only subject certifications are permitted to teach entire grades; nor does the record reflect any more than two examples of such a practice (Peterson and Segers); nor does the record reflect the effect, if any, upon accreditation if the practice is followed. Absent a definitive record' on these important considerations, and absent evidence of a widespread practice on the part of the school authorities of employment of teachers to teach an entire grade outside of the area of their certifications, we conclude to require that Peterson and Segers should be given preferential rights of reemployment within their area certification, when and if a vacancy arises, but not to require their immediate reinstatement to teach the eighth and seventh grades, respectively.

In the ease of Holly, we find that due process was denied when the defendant, upon whom the burden of proof was placed after the initial demonstration of a background of discrimination, failed to show why, prior to May 14, Holly was not retained, when the record clearly shows that he was as well qualified as the two white teachers retained in the system, and that he had much more experience than they had. Similarly, we find that defendant violated due process as to Price and New-berry by failing to consider them for teaching positions within the scope of their certifications which they were exercising, when the record is devoid of any evidence showing that they did so unsatisfactorily. We have already commented on Newberry’s passing worthless checks as justifying now the failure to reemploy him. We add, however, that if he is reinstated in accordance with the relief we grant, defendant is not to be foreclosed, in a proper case, from taking appropriate disciplinary action should such activities be resumed.¹³

Plaintiffs argue that additional denials of due process have been shown in the sending of the May 14 letter only to Negro teachers and in the absence of written criteria to evaluate the qualifications of teachers in subjects where available employment was diminished. We are not persuaded by these arguments. The May 14 letter was sent, as the record discloses, only after the qualifications of the Negro senior and junior high school teachers at Central High had been evaluated and compared with those of all similarly situated white teachers. Where that evaluation, or lack thereof, resulted in the denial of equal protection and due process, we have noted it, and will direct that relief be granted. We are persuaded, however, by our examination of the record, that the determination that Palmer, Foster and Brooks should not be reemployed was fairly made and that their rights were not prejudiced by the absence of written criteria for the written evaluations that were made. We note that such criteria were established for succeeding years.

We conclude that plaintiffs as a class are entitled to an order enjoining defendant from discrimination on the basis of race or color in the employment, assignment, dismissal and failure to rehire of teaching personnel. We conclude, also, that while Kilgore, Palmer, Foster and Brooks are not entitled to any particular individual relief, Price, Newberry and Holly are entitled to money damages for defendant’s failure to reemploy them for the school years 1965-66, 1966-67 and 1967-68, and to an order directing that, absent good cause they be offered reemployment within the scope of their certifications, without comparison with new applicants, for the school year 1968-69, and thereafter, or, alternatively, that money damages be paid them for the latter year. Proper damage elements will include those set forth in Wall v. Stanly County Board of Education, supra.¹⁴ We conclude further, that Peterson and Se-gers are entitled to an order directing defendant to offer them reemployment in any vacancy within the scope of their certifications without requiring a comparison of their qualifications with those of new applicants, and, finally, are entitled to an inquiry by the district court, to determine if they were denied such employment while this litigation has been pending, in which event, they, too, shall be awarded damages for defendant’s failure to have reemployed them at the earlier date, measured in accordance with Wall v. Stanly County Board of Education, supra. The order of the district court should require that these steps be taken under its continuing jurisdiction until the transition to a desegregated faculty is completed.

Reversed and remanded.

1 . “It is now firmly established in this circuit (1) that the Fourteenth Amendment forbids the selection, retention, and assignment of public school teachers on the basis of race; (2) that reduction in the number of students and faculty in a previously all-Negro school will not alone justify the discharge or failure to reemploy Negro teachers in a school system; (3) that teachers displaced from formerly racially homogeneous schools must be judged by definite objective standards with all other teachers in the system for continued employment; and (4) that a teacher wrongfully discharged or denied reemployment in contravention of these principles is, in addition to equitable remedies, entitled to an award of actual damages.” (Citing: Chambers v. Hendersonville City Bd. of Eduec., 364 F.2d 189 (4th Cir. 1966); Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966); Wheeler v. Durham City Bd. of Educ., 363 F.2d 738 (4th Cir. 1966); Franklin v. County School Bd., 360 F.2d 325 (4th Cir. 1966).

2 . The initial complaint was filed by North Carolina Teachers Association, a professional teachers association, incorporated under North Carolina law, having approximately 12,500 members, most of whom are Negro teachers. During the course of the litigation the complaint was amended to make specific a prayer that teachers denied employment in violation of their due process and equal protection be reinstated in the same or comparable positions. At a later stage in course of pretrial proceedings, Gaines W. H. Price, a Negro teacher formerly employed by defendant, was permitted to intervene as a party plaintiff.

3 . The only exception was during the school year 1964-65, when six Negro students requested reassignment and were assigned to two of the previously all-white schools.

4 . We note that the record discloses that all white children transferred from the elementary department of Central High to other schools when this conversion occurred.

5 . Under North Carolina law, the State Board of Education determines for each administrative unit (the local boards of education) the number of elementary and high school teachers to be included in the State budget. N.C.G.S. § 115-59 (1966).

6 . The authority to certify teachers is vested in the State Board of Education by N.C.G.S. §§ 115-11(14) and 115-153. No contract of teaching employment is valid unless the teacher has been so certified, except temporary employment under such rules as the State Board of Education may prescribe. N.C.G.S. § 115-152. The record discloses that certifications granted by the State Board of Education are limited to grades and subject matter.

7 . The letter was not sent to the principal of the school or to one teacher who had already expressed her desire to retire. It was, however, sent to one elementary school teacher, Mrs. Brooks, who was being asked to resign.

8 . This is the finding of the district court. Plaintiffs point to the testimony from which it can be argued that the finding is erroneous, i. e., the testimony that all teachers, including those who received the May 14 letter, were sent the option. Resolution of the correctness of the finding is unnecessary in our view of the proper disposition of the case.

9 . We do not read the findings of the district judge as concluding to the contrary. If they are given that reading, they are “clearly erroneous” as the following testimony of the Superintendent of Schools, who was the only one who gave evidence on the point, demonstrates:

“Q. Is it a practice to rehire teachers year after year unless there is some objection by the principal or person in the administration who might deal in the evaluation of the teacher?

“A. The answer is yes, of course, except that retirement age — this is quite a natural thing if there’s no objection, if there’s no reason a person should not be employed and the position is there, certainly we consider them and employ them if there’s a position available.”

10 . The record discloses that two additional high school teachers subsequently were reemployed in the system.

11 . We reaffirm our holding in Chambers that a long history of racial discrimination, coupled with sudden disproportionate decimation in the ranks of Negro teachers when desegregation is finally begun, gives rise to an imputation of racial discrimination in the failure to rehire Negro teachers. Such circumstances, we repeat, cast the burden of proof on the school authorities to show that the failure to rehire was for non-discriminatory reasons, and require that the proof he clear and convincing before the failure to rehire will he upheld. See also Hawkins v. North Carolina Dental Society, 355 F.2d 718 (4 Cir. 1966). It is in accord with these principles that we decide this case.

12 . See footnote 6.

13 . Mr. E. Edmund Reutter, Jr., Professor of Education at Columbia University Teachers’ College, plaintiff’s expert witness, who had no knowledge of Mr. New-berry’s case, when asked what he would do about an individual who passed “worthless checks” described a proper course of procedure:

“If I were to evaluate individuals, I would have to go through the system and evaluate individuals. Now, the method here that would have to be applied would be in an investigation. Certainly this would be a prima facie situation that should be looked into by the superintendent, investigated by the superintendent, and it could or could not be a reason for dismissing the teacher. Many of us have overdrawn our bank accounts and misunderstood things. On the other hand, this could be a scoundrel. But without a thorough investigation, and then having investigated the facts of the quote, worthless checks, end of quote, this would have to be in context with all of the other objective and subjective findings.”

He was also permitted to express the opinion, without objection, that Mr. New-berry should not have been dismissed “under the procedures that were followed.”

14 . In the case of Holly, under the standards of the Stanly County case, his maximum monetary recovery may not be measured by loss of wages beyond the date in June, 1965 that he refused reemployment and may thus be de minimis, unless he can present proof that, because of initial refusal to rehire him, he entered into an employment contract, at a lower salary which prevented his acceptance of the subsequent offer of employment.