Knowles v. Board of Public Instruction of Leon County, FL Brief for Appellant

    'MniUh S t a t e s  ( t a r t n f  Kppmlz
F oe the  F ifth  C ircuit

No. 26144

Christine F . K nowles,
Appellant,

B oard op P ublic I nstruction op 
L eon County, F lorida, et al.,

Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT 
POR THE NORTHERN DISTRICT OF FLORIDA

BRIEF FOR APPELLANT

J ack Greenberg 
J ames M. Nabrit, III 
Conrad K . H arper 
W illiam  L. R obinson 

10 Columbus Circle 
New York, New7 York 10019

E arl M. J ohnson 
R eese M arshall

625 West Union Street 
Jacksonville, Florida

Attorneys for Appellant



I N D E X

Statement of the Case ....... ..... .......... ..... ...... ................ . 1

1. Procedural History of the Case .................  1

2. The Board’s Employment Policies ............-  3

3. Appellant’s Attempts to Obtain Transfer .......  5

4. The Decision of the District Court ........... .......  9

Specifications of Error ................................... ................  10

A rgument

I. According to the United States Constitution and 
the Decisions of This Court, the Board was Re­
quired to Consider the Negro Appellant’s Re­
quest for Transfer to an Integrated School .... 11

1. The law in effect at the time of appellant’s
request for transfer required the board to 
consider her request....... ..... ....... .....................  11

2. The district court should have decided the 
case based on the law in effect at the time
of trial ___ _____ _____ ______ _______ ____ _ 13

3. United States v. Jefferson required the board
to consider appellant’s request for transfer .... 15

4. The board was required to consider appel­
lant’s request for transfer even though she 
did not obtain the recommendation of a white 
principal ................ .............................................  16

PAGE



ii

II. The District Court Erred in Holding That it 
Lacked Jurisdiction to Consider Appellant’s 
Prayers for Reinstatement, Back Wages, Costs 
and Attorneys Pees, and all Questions of Law 
Respecting Her Resignation and Contractual

PAGE

Rights ................................................................... —- 18

Conclusion .................................................................................. 22

Certificate of Service....................-.....................................  23

T able of A uthorities

Cases:

American Steel Foundries v. Tri-City Central Trades,
257 U.S. 184 (1921) ................. ............................... -....  14

Augustus v. Board of Public Instruction of Escambia 
County, Florida, 306 F.2d 862 (1962) ........ ............ 11,12

Board of Public Instruction of Duval County, Florida 
v. Braxton, 326 F.2d 616 (1964), cert, denied 377 
U.S. 924 ............................................ .................... -....... -  11

Bradley v. School Board of Richmond, 382 U.S. 103 
(1965) ................................. -...................................... .....11,21

Brown v. Board of Education, 349 U.S. 249, 299-301 
(1954) .................................................... -..........................  21

Crump v. Board of Public Instruction of Orange 
County, Florida, 368 U.S. 278 (1961) .......... ....... . 18

Escobedo v. Illinois, 378 U.S. 478 (1964) ................—-  14

Garrity v. New Jersey, 385 U.S. 493 (1967) ............... 18



Hurn v. Oursler, 289 U.S. 238 (1932) 21

Jackson v. Godwin, No. 25299 (5th Cir. July 23, 1968) 17
Johnson v. New Jersey, 384 U.S. 719 (1966) ....... .......  14

Linkletter v. Walker, 381 U.S. 618 (1965) .................14,15
Ludley v. Board of Supervisors Louisiana State Uni­

versity, 150 F. Supp. 900 (E.E>. La.), aff’d 252 F.2d 
378 (5th Cir. 1958), cert. den. 358 U.S. 819 ............... 17

Mapp v. Ohio, 367 U.S. 643 (1961) ..................... .........  14
Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962) ______ 17
Miranda v. Arizona, 384 U.S. 436 (1966) ....... .............  14

Osborne v. Bank of United States, 22 U.S. (9 Wheat)
738 (1824) ......... ..... ............ ....... ...... ......... ..................  19

Price v. Denison Independent School District, 348 F.2d
1010 (1965) .......... .................. .........................................  12

Public Utilities Commission of Ohio v. United States 
Fuel Gas Co., 317 U.S. 456 (1943) ___________ ____ 14

Raney v. Gould School District Board of Education,
36 L.W. 4483, 4484 (1968) ............ ........... ..................  21

Rogers v. Paul, 382 U.S. 198, 199-200 (1965) ...........13,21

Siler v. Louisville & Nashville Railroad Co., 213 U.S.
175 (1909) ............... ................ ......... ........................ . 19

Singleton v. Jackson Municipal Separate School Dis­
trict, 348 F.2d 729 (1965) (Singleton I) .............. . 12

Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F.2d at 869 (Singleton II) .......... ............ 12,13

Spevack v. Klein, 385 U.S. 511 (1967) ......................... . 18



IV

Clifford N. Steele, et al. v. Board of Public Instruction

PAGE

of Leon County, Florida, et al., No. 24650 ..... .........  1, 2

Transamerica Insurance Co. v. Bed Top Metal, 384 
F.2d 752, 753-754 n. 1 .................... .......... ................. 19,20

United Mine Workers v. Gibbs, 383 U.S. 715, 725
(1966) ........................................................... ....................  20

United States v. Alabama, 362 U.S. 602 (1959) ..... .....  13
United States v. Jefferson County Board of Educa­

tion, 372 F.2d 836 (5th Cir. 1966), affirmed en banc,
380 F.2d 385 (5th Cir. 1967), cert, den, sub nom 
Caddo Parish School Board v. United States, 389
U.S. 840 (1967) ........... ...... ...... ............. 2,13,14,15,16,17

United States v. Ramsey, 353 F.2d 650 (5th Cir. 1960) 14
United States v. Schooner Peggy, 5 U.S. (1 Cranch)

103 (1801) ........... ................ ................................ ...........  14

Other Authorities:

General Statement of Policies Under Title VI of the 
Civil Bights Act of 1964 Respecting Desegregation 
of Elementary and Secondary Schools, HEW, Office 
of Education, April, 1964. 45 C.F.R. §181 12



F oe the. F ifth  C ircuit 

No. 26144

Christine F . K nowles,

-v.—
Appellant,

B oard of P ublic I nstruction of 
L eon County, F lorida, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA

BRIEF FOR APPELLANT

Statement of the Case

This is an appeal from the dismissal of a complaint 
alleging racial discrimination by the Board of Public In­
struction of Leon County, Florida in the employment of 
a Negro teacher, Mrs. Christine F. Knowles.

1. Procedural History of the Case

On August 19, 1966, Mrs. Christine Knowles (herein­
after referred to as appellant) filed in the United States 
District Court for the Northern District of Florida an 
intervenor’s complaint and motion to intervene in the case 
of Clifford N. Steele, et al. v. Board of Public Instruction 
of Leon County, Florida, et al., a pupil desegregation case 
then pending in this court. (E. 1-6, 6-7). The complaint



2

alleged, inter alia, that defendants in violation of the 
United States Constitution: followed a policy of maintain­
ing segregated faculties in the Leon County public schools 
(R. 4 ); maintained a policy of requiring applicants for 
teaching positions to obtain the recommendation of the 
principal of the school where they will teach prior to 
employment as a means of maintaining segregated facul­
ties (R. 4 ); and refused to transfer appellant, a qualified 
Negro teacher, to a predominantly white school because 
of appellant’s race (R. 4). The complaint prayed that a 
preliminary injunction be issued compelling defendants: 
to assign appellant to a teaching position in a school at­
tended predominantly by white students; to cease main­
taining segregated faculties and to submit a plan to dis­
establish the system of segregated faculties (R. 5-6). On 
September 15, 1966, the district court entered an order 
granting appellant’s motion to intervene but holding in 
abeyance the motion for preliminary injunction because 
the Steele case was then on appeal to this court (R. 22).

On April 12, 1967, this court dismissed the appeal, 
Steele v. Board of Public Instruction of Leon County, 
Florida, No. 24650, because it was clear that the district 
court would enter an order conforming to the decree 
entered by this court in United States v. Jefferson County 
Board of Education, 372 F.2d 836 (5th Cir. 1966), affirmed 
en banc, 380 F.2d 385 (5th Cir. 1967), cert. den. sub nom 
Caddo Parish School Board v. United States, 389 U.S. 
840 (1967). On May 1, 1967, the district court issued a 
Jefferson decree. Section V III of the decree enjoined the 
defendants from maintaining segregated faculties; but the 
court did not grant any relief for the appellant.

December 1, 1967, appellant filed a motion for further 
relief requesting the court to issue an order directing that: 
appellant be reinstated as a teacher in the Leon County



3

school system; assigned to a school attended by predomi­
nantly white students and pay appellant her back wages 
(R. 23-25).

A  trial was held on February 26, 1968 (R, 123) and 
February 28, 1968 the district court entered an order 
rendering judgment for the defendant and dismissing the 
complaint, without prejudice to filing in the State courts, on 
the grounds that appellant had no constitutional right to 
receive a transfer to a school of her choice and the orders 
of the court did not require faculty desegregation until 
May 1, 1967. The court also held that appellant’s prayers 
for reinstatement, back salary, costs and attorneys fees 
and all questions of law respecting her resignation and 
rights under her contract were matters of state law out­
side its jurisdiction (E. 192-193). Appellant filed a motion 
for new trial on March 7, 1968 asserting that: the court 
erred in holding that it lacked jurisdiction to grant appel­
lant’s prayers for reinstatement, back salary, costs and 
attorneys fees; the court’s refusal to consider questions of 
law relative to appellant’s resignation and contract rights 
effectively precluded adducing evidence tending to show 
racial discrimination (R. 193). The motion for new trial 
was denied on March 8, 1968 (R. 195). Appellant filed a 
notice of appeal on April 8, 1968 (R. 196).

2. The Board’s Employment Policies

During the 1964-65 school year the board maintained a 
policy of assigning teachers on the basis of race (E. 141). 
Superintendent Ashmore testified that:

“We followed the Florida criterion which said there 
would be no integration.” (R. 141).

In the 1965-66 school year, there was no faculty integra­
tion in the public schools of Leon County (E. 92, 102, 136).



4

For the 1966-67 school year, one white teacher was em­
ployed at Concord, a predominantly Negro elementary 
school (R. 92, 102, 137).

Applicants seeking a teaching position in the Leon County 
school system first file a written application with the As­
sistant Superintendent in charge of personnel, Sterling 
Bryant (R. 108). Usually Mr. Bryant interviews the ap­
plicant and completes a file on the applicant by acquiring 
references and checking their certification (R. 108). When 
vacancies occur, the assistant superintendent refers the 
principals to teachers available to fill the vacancy (R. 31, 
103, 108, 119-120, 141). The principal recommends one of 
these teachers to the superintendent’s office. The superin­
tendent submits the teacher’s name to the board and the 
board approves employment of the teacher (R. 103, 141).

The board’s policy governing teacher transfers, in effect 
throughout this litigation, required the teacher seeking 
transfer to obtain a recommendation approving the transfer 
from the respective principals, the principal of the school 
where she is then teaching and the principal of the school 
to which she desires transfer (R. 38, 39, 113). The recom­
mendations are submitted to the superintendent who ap­
proves the transfer (R. 38).

After the district court’s Jefferson decree was entered 
on May 1, 1967, the board ignored its usual employment 
transfer procedures in attempting to meet its affirmative 
duty to disestablish faculty desegregation (R. 113). The 
assistant superintendent surveyed the teachers to determine 
which teachers were willing to transfer to an integrated 
school (R. 114). When the survey was completed, the 
assistant superintendent referred the willing teachers to 
the various principals and coordinated the effort to de­
segregate the faculties (R. 114-116).



5

3. Appellant’s Attempts to Obtain Transfer

Appellant was employed under continuing’ contract as a 
business education teacher at the all-Negro Lincoln High 
School from 1959 until August, 1966 (B. 54, 56, 164). 
During the spring of 1965, at the request of her principal, 
Mr. F. D. Lawrence, appellant attended a meeting with a 
group of white business education teachers which resulted 
in the decision to submit a proposal to the State Depart­
ment of Education for a vocational office education pro­
gram to be established in the business education depart­
ment at Lincoln (B. 164-165). Appellant took two courses 
at Florida A. & M. University to become qualified to teach 
in the program (E. 165).

March 31, 1966, Mr. F. D. Lawrence received a copy of 
the notice disapproving the proposal for a vocational office 
education program at Lincoln High School (E. 166). A l­
though the superintendent received written notice that the 
proposal had been disapproved in December of 1965 (E. 
52, 166), he did not inform Mr. Lawrence of the dis­
approval until March 31, 1966 (E . 166); and Mr. Lawrence 
informed appellant of the disapproval on the next day, 
April 1, 1966 (B. 166).

Subsequent to disapproval of the Lincoln proposal, ap­
pellant attended another integrated meeting of business 
education teachers (E. 166). At this meeting, the county 
coordinator of education informed the teachers to quickly 
submit their proposals because the superintendent would 
honor them on a “ first come first served” basis (E. 166).

April 26, 1966, appellant made inquiries of the State 
Department of Education concerning procedures for sub­
mission of project proposals and specifically the Lincoln 
High School proposal (E. 47, 50, 167). April 26, 1966, 
appellant also wrote the superintendent asking for his



6

comments on her letter to the State Department of Edu­
cation and requesting a transfer to one of the better 
equipped schools, Leon, Rickards or Lively Technical where 
her skills would be employed more effectively (R. 46, 144, 
167). She wrote:

“Please give me your comments and reactions to the 
attached letter at your earliest convenience.

“In regards to the attached letter and in compliance 
with ‘The 1966 Title VI Guidelines,’ I  wish to make a 
request to be transferred to one of the better equipped 
schools—Leon, Rickards or Lively Technical Day Pro­
gram. I feel that this transfer will enable me to bet­
ter implement my training by using and working with 
the proper equipment.”

July 11, 1966, the superintendent replied to appellant’s 
request for comments without commenting on her request 
for a transfer to a predominantly white school (R. 41-43).

During the summer, Principal Lawrence repeatedly 
called appellant to determine her plans for the next school 
term (R. 167). Appellant informed him that her plans 
depended on hearing from the superintendent about her 
request for transfer (R. 167). July 11, 1966, Mr. Lawrence 
wrote the superintendent recommending appellant for a 
position as teacher of Vocational Office Education at Lin­
coln High School (R. 41, 168). July 21, 1966, appellant 
wrote the superintendent inquiring about the status of 
her request for a transfer and reiterated her belief that 
such a transfer would enable her to make greater use of 
her training and experience (R. 40, 168). July 22, 1966, 
Superintendent Ashmore wrote appellant to inform her 
that there were no plans to assign her to another school 
and that it was long-standing policy to require teachers 
who desire transfers to obtain recommendations approving



7

the transfer from the principals of the respective schools 
(R. 38, 44, 168).

On July 25, 1966, appellant requested a recommenda­
tion approving her transfer from Principal Lawrence 
(R. 38, 39, 168-169), who replied that he had no objec­
tions to the transfer but informed her of the Board’s 
policy requiring her to obtain the recommendation of the 
principal at the school to which she sought transfer (R. 37- 
38, 168-169).

Initially, appellant did not write the white principals of 
Leon, Lively or Rickards requesting a recommendation 
for transfer because she felt that requiring her to obtain 
a white principal’s recommendation was discriminatory 
(R. 169-170). However, appellant later wrote the white 
principals of Leon, Lively and Rickards requesting a 
recommendation to their school (R. 170). She received 
letters from all of them indicating that no vacancies 
existed at their school and that her letter was being 
referred to the Assistant Superintendent in charge of 
personnel (R. 170-171).

August 19, 1966, appellant filed her complaint in this 
cause alleging racial discrimination in the hiring and as­
signment of teachers in Leon County (R. 1-7). August 22, 
1966, appellant wrote Mr. Lawrence indicating that she 
could not accept the position of vocational office education 
teacher pending disposition of her complaint scheduled 
for hearing in the United States District Court, Septem­
ber 8, 1966 (R. 36-37). August 29, 1966, the superinten­
dent wrote appellant indicating that the board expected 
her to teach vocational office education during the school 
year 1966-67 (R. 34-35). August 30, 1966, appellant wrote 
the superintendent resigning as a teacher in the Leon 
County school system pending the district court’s deck



8

sion on her application for transfer (R. 34). Her letter 
stated :

“ The denial of my application for transfer to one of 
the better equipped white schools is presently under 
appeal to the U.S. District Court for the Northern 
District of Florida. I cannot accept any position in 
the public schools in Leon County before the decision 
of the said court.

You are further notified of my resignation as a 
teacher in the Leon County public school system pend­
ing the determination of the U.S. District Court in 
the above mentioned case.” (R. 34)

September 1, 1966, the superintendent wrote appellant 
that the Board accepted her resignation effective as of 
August 31, 1966 (R. 33). September 11, 1966, appellant 
wrote the superintendent pointing out the district court’s 
failure to decide her complaint on September 9 as sched­
uled and requested a transfer to any school in the county 
except Lincoln High School (R. 32). September 21, 1966, 
the superintendent wrote appellant indicating that since 
the Board had accepted her resignation and she was no 
longer a part of the school system, appellant must obtain 
prior to reemployment a recommendation from the princi­
pal of one of the Leon County schools to fill an existing 
vacancy (R. 31). October 17, 1966, appellant wrote the 
superintendent informing him that the Board accepted 
her temporary resignation without qualification of any 
kind: She also indicated she would write principals of 
the predominantly white schools requesting employment 
and requested notification of any vacancy at any of their 
schools (R. 29-30). October 27, 1966, the superintendent 
responded that no vacancy existed in appellant’s field of 
certification (R. 28-29).



9

Appellant was unemployed until the middle of Decem­
ber, 1966 (R. 171). She worked at Florida A. & M. Hos­
pital for two and one half months from January to March 
15, 1967 (R. 171-173). Appellant was unemployed from 
March 15 to April 10, 1967 (R. 173). Appellant has been 
employed at the Florida State Correctional Institution (al) 
from April 10, 1967 to the present (R. 171, 69).

4. The Decision of the District Court

At the close of appellant’s case, the court granted ap­
pellee’s motion to dismiss from the bench (R. 187). The 
court ruled that a teacher does not have a constitutional 
right to request a transfer and receive favorable action 
upon that request (R. 186). Appellant’s attorney pointed 
out that this case involved the question of racial discrimi­
nation and that the Board was at least obligated to con­
sider the application for transfer to an integrated school 
(R. 189). The court ruled that the orders of the district 
court did not require the Board to consider teacher ap­
plications for transfer to an integrated school until entry 
of the Jefferson decree on May 1, 1967 (R. 190) ; and the 
district court held that the decisional law of this court 
in effect at the time appellant requested transfer ex­
pressly exempted the Board from the obligation to con­
sider teacher applications for transfer to an integrated 
school (R. 190). Early in the trial, the district court cited 
Augustus v. Board of Public Instruction of Escambia 
County, Florida, 306 F.2d 862 (1962), as the decision 
exempting the Board from the duty to desegregate facul­
ties (R. 139).

The court, also from the bench, granted appellee’s mo­
tion to strike the prayer for an injunction requiring the 
Board to cease employing teachers on the basis of race 
and submit a plan for desegregation of faculties because 
that relief was ordered in the Jefferson decree (R. 183).



10

February 28, 1968, the district court, entered an order 
dismissing the complaint because appellant had no con­
stitutional right to teach at a school of her choice and 
faculty integration was not required before entry of the 
Jefferson decree on May 1, 1967 (R. 192). The order 
also held that “ the other matters raised by [appellant’s] 
pleadings including her prayer for reinstatement, pay­
ment of back salary, costs and attorneys fees, and all 
questions of law respecting her resignation and rights 
under her contract of employment are matters outside” 
its jurisdiction (R. 192-193).

Specifications of Error

1. The district court erred in dismissing the complaint 
of the Negro appellant on the grounds that:

a) faculty segregation was permissible at the time of 
appellant’s request for transfer to a white school;

b) a Negro teacher has no constitutional right to re­
ceive consideration of her request for transfer 
from an all-Negro to an all-white or integrated 
school.

2. The district court erred in holding that appellant’s 
prayers for reinstatement, payment of back salary, costs 
and attorneys fees and all questions of law respecting her 
resignation were matters of state law outside its jurisdic­
tion.



11

A R G U M E N T

I.

According to the United States Constitution and the 
Decisions of This Court, the Board was Required to 
Consider the Negro Appellant’ s Request for Transfer to 
an Integrated School.

1. The law in effect at the time of appellant’ s request for 
transfer required the board to consider her request

The court dismissed the complaint, in part, because 
in its view the law in effect at the time of appellant’s 
request for transfer did not require the board to deseg­
regate the faculty. The court relied on this court’s deci­
sion in Augustus v. Board of Public Instruction of Es­
cambia County, Florida, 306 F.2d 862 (1962) as permitting 
the district court to defer ruling on the issue of faculty 
desegregation (R. 139).

Augustus did express the view that the district court 
could in its discretion postpone consideration and deter­
mination of the faculty desegregation issues as presented 
by Negro pupils. However, decisions of this court and 
the Supreme Court had completely undercut Augustus 
at the time appellant requested transfer in April of 1966. 
In Board of Public Instruction of Duval County, Florida 
v. Braxton, 326 F.2d 616 (1964), cert, denied 377 TJ.S. 924, 
this court affirmed an order prohibiting assignment of 
teachers on a segregated basis. In Bradley v. School 
Board of Richmond, 382 TJ.S. 103 (1965), the Supreme 
Court reviewed a decision holding, like Augustus, that 
the district court could defer ruling on faculty deseg­
regation until segregation in the assignment of pupils 
had been eliminated. The court summarily remanded the 
case to the district court holding that it was improper 
for the court to approve a desegregation plan without



12

considering the impact of faculty assignment on a racial 
basis. The Court stated:

“We hold that petitioners were entitled to such full 
evidentiary hearings upon their contention. There is 
no merit to the suggestion that the relation between 
faculty allocation on an alleged racial basis and the 
adequacy of the desegregation plans is entirely specu­
lative. Nor can we perceive any reason for post­
poning these hearings: Each plan had been in opera­
tion for at least one academic year; these suits had 
been pending for several years; and more than a 
decade has passed since we directed the desegrega­
tion of public school faculties ‘with all deliberate 
speed,’ Brown v. Board of Education. . . . Delays 
in desegregating school systems are no longer toler­
able.” 382 U.S. at 105.

The board was also required to put an end to faculty 
segregation under this court’s decisions in Singleton v. 
Jackson Municipal Separate School District, 348 F.2d 
729 (1965) (Singleton I), 355 F.2d 865 (1966) (Single- 
ton I I ) ; Price v. Denison Independent School District, 
348 F.2d 1010 (1965). Singleton I and Price adopted the 
standards established by H.E.W. as the minimum stan­
dards for school desegregation.1 In Singleton II, this 
court required further action toward faculty desegrega­
tion than merely holding joint faculty meetings and a 
joint inservice program.

Finally it must be noted that in this case the complaint 
alleging faculty assignment on the basis of race was filed 
by an individual Negro teacher. While Augustus and

1 General Statement of Policies Under Title VI of the Civil Eights 
Act of 1964 Respecting Desegregation of Elementary and Secondary 
Schools, HEW, Office of Education, April, 1964. 45 C.F.R. §181.



13

other cases held that the district court could postpone 
consideration of the broad question of faculty desegrega­
tion presented as part of a pupil desegregation case, it 
has never been held that the district court could avoid 
ruling on a complaint brought by an individual Negro 
teacher alleging that racial considerations controlled her 
teaching assignment. It seems patently clear that the 
Fourteenth Amendment to the United States Constitu­
tion and Section 601 of the 1964 Civil Eights Act prohibit 
the board from refusing to consider because of race an 
individual Negro teacher’s request for transfer to a predom­
inantly white school. Cf. Rogers v. Paid, 382 U.S. 198, 
199-200 (1965); Singleton v. Jackson Municipal Separate 
School District, 355 F.2d at 869, holding that Negro children 
in still segregated grades in Negro schools had an ab­
solute right, as individuals to transfer to schools from 
which they were excluded because of their race.

2. The district court should have decided the case based on 
the law in effect at the time of trial

The district court dismissed the complaint partially on 
the ground that this court’s decision in United States v. 
Jefferson was not controlling (R. 192). In reaching this 
novel conclusion unsupported by any authority, the dis­
trict court reasoned that the filing of the complaint in 
August, 1966, four months before the Jefferson panel 
opinion (December 29, 1966) and seven months before 
the Jefferson en banc opinion (March 29, 1967) was not 
timely to invoke Jefferson’s requirements (R. 139, 162, 
190)—notwithstanding the fact that trial was had in Feb­
ruary, 1968, almost a year after the en banc opinion in 
Jefferson.

It is firmly established that appellate courts must apply 
the law as it is at the time of their decision, rather than.



14

the law in effect at the time the complaint was filed or 
at the time of the decision below. Linkletter v. Walker, 
381 U.S. 618, 627 text and n. 11 (1965); United States 
v. Alabama, 362 U.S. 602 (1959); Public Utilities Com­
mission of Ohio v. United States Fuel Gas Co,, 317 U.S. 
456 (1943); American Steel Foundries v. Tri-City Central 
Trades, 257 U.S. 184 (1921); United States v. Ramsey, 
353 F.2d 650 (5th Cir. 1960); United States v. Schooner 
Peggy, 5 U.S. (1 Cranch) 103 (1801). It follows that 
district courts must apply the law in effect at the time 
of the trial, rather than the law in effect at the time the 
complaint was filed or at the time the alleged transgres­
sion occurred.

In holding Jefferson inapplicable to events which oc­
curred before the decision was announced, the district 
court made an implicit analogy to recent decisions of the 
Supreme Court holding several of its earlier criminal law 
decisions to be non-retroaetive. The Supreme Court, how­
ever, has never accepted the notion that the applicability 
of new rulings should depend on when the facts occurred. 
See, Linkeletter v. Walker, swpra, holding Mapp v. Ohio, 
367 U.S. 643 (1961) non-retroactive and restricting its 
applicability to trial after the Mapp decision; Johnson 
v. New Jersey, 384 U.S. 719 (1966) holding Escobedo v. 
Illinois, 378 U.S. 478 (1964) and Miranda v. Arizona, 384 
U.S. 436 (1966) non-retroactive and restricting their ap­
plicability to cases in which the trial began after the deci­
sions were announced. Thus, even under the most restric­
tive statement of the non-retroactivity principle accepted 
by the Supreme Court to date, in Johnson, the Jefferson 
decision would apply to the present case. In Linkeletter 
the Supreme; Court, unlike the district court here, specif­
ically rejected the suggestion that the new ruling should 
apply as of the date on which the Mapp facts occurred:



15

“Nor can we accept the contention of petitioner that 
the Mapp rule should date from the day of the seizure 
there, rather than that of the judgment of this court. 
The date of the seizure in Mapp has no legal signif­
icance. It was the judgment of this court that changed 
the rule and the date of that opinion is the crucial 
date. In the light of the cases of this court this is 
the better cutoff time.” See United States v. Schooner 
Peggy, supra. 381 U.S. at 639.

3. United States v. Jefferson required the board to consider 
appellant’s request for transfer

In United States v. Jefferson, this panel carefully ana­
lyzed the legislative history of Section 604 of the Civil 
Rights Act of 1964 and concluded that Section 604 does 
not exempt school boards from the obligation to desegre­
gate faculties under the Civil Rights Act of 1964. The 
court noted that:

“Faculty integration is essential to student desegrega­
tion. To the extent that teacher discrimination jeop­
ardizes the success of desegregation, it is unlawful 
wholly aside from its effect upon individual teachers.” 
372 F.2d at 383.

The panel also specified the constitutional requirements 
for faculty desegregation including the right of individual 
teachers to be free from discrimination in their employ­
ment. 372 F.2d 886, n. 104. In this regard the law of 
the Fifth Circuit is the same as that of the Fourth and 
Eighth Circuits. Indeed the panel in Jefferson relied on 
prior decisions of the Fourth and Eighth Circuits in con­
cluding that individual teachers have a constitutional right 
to be free from racial discrimination in their employment. 
372 F.2d 884-886.



16

In the model decree attached to the Jefferson opinions, 
the court directed that specific steps be taken with regard 
to teacher desegregation which would require the board 
to consider appellant’s request for transfer. In Section 
V III of the decree, the court ordered:

F aculty and S taff

(a) Faculty Employment. Race or color shall not be 
a factor in the hiring, assignment, reassignment, pro­
motion, demotion, or dismissal of teachers and other 
professional staff members, including student teachers, 
except that race may be taken into account for the 
purpose of counteracting or correcting the effect of 
the segregated assignment of faculty and staff in the 
dual system. . . .
(b) Dismissals. Teachers and other professional staff 
members may not be discriminatorily assigned, dis­
missed, demoted, or passed over for retention, promo­
tion or rehiring on the ground of race or color. . . . 
372 F.2d at 900, 380 F.2d at 394 (emphasis added).

4. The hoard was required to consider appellant’s request 
for transfer even though she did not obtain the recom ­
mendation of a white principal

As noted in the statement of the case, the superintendent 
informed appellant shortly before school opened that she 
must obtain the recommendation of the principal of the 
school to which she desired a transfer. Appellant ad­
mitted at trial that initially she did not attempt to obtain 
the recommendation of one of the white principals. Thus 
we must consider whether the board was obligated to 
consider appellant’s application for transfer despite her 
failure to obtain a recommendation from one of the white 
principals.



This court has on several occasions struck down rules 
and regulations which on their face appear to be non- 
discriminatory but which in practice and effect place a 
heavy burden on Negroes and not on whites, thus oper­
ating in a racially discriminatory manner. Jackson v. 
Godivin, No. 25299 (5th Cir. July 23, 1968) and cases cited 
therein; Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962); 
Ludley v. Board of Supervisors Louisiana State Univer­
sity, 150 F. Supp. 900 (E.D. La.), aff’d 252 F.2d 378 (5tli 
Cir. 1958), cert. den. 358 U.S. 819.

In Meredith v. Fair, this court took judicial notice of 
Mississippi’s policy of maintaining segregation in its 
schools and colleges. The court then held the University 
of Mississippi’s requirement that each applicant for ad­
mission obtain alumni certificates of recommendation de­
nied Negro applicants their equal protection of the law 
because it placed a heavy burden on qualified Negro 
students and no burden on qualified white students. In 
the present case, the superintendent admitted that the 
board followed an official policy of maintaining segre­
gated faculties during the 1964-65 school year; there was 
no faculty desegregation in the 1965-66 school year. In 
this context, the rule requiring appellant to obtain the 
recommendation of a white principal before considering 
her request for transfer obviously imposed a heavy burden 
on the Negro appellant not faced by whites. A  white 
principal would have to go contrary to the traditional 
policy of segregated faculties and perhaps expose himself 
to reprisals in approving appellant’s transfer to his school. 
In this regard, it is significant that the superintendent 
modified the policy of requiring recommendations in com­
mencing the desegregation of faculties pursuant to Jeffer­
son. The policy requiring appellant to obtain the prior



18

recommendation of a white principal denied appellant equal 
protection of the law.

Nor can the board be permitted to defeat appellant’s 
constitutional rights by asserting that she is no longer 
a part of the school system. Appellant submitted a clearly 
conditional resignation and it was accepted by the board 
without qualification. Gf., Garrity v. New Jersey, 385 U.S. 
493 (1967); Spevach v. Klein, 385 U.S. 511 (1967); Crump 
v. Board of Public Instruction of Orange County, Florida, 
368 U.S. 278 (1961).

II.

The District Court Erred in Holding That it Lacked 
Jurisdiction to Consider Appellant’ s Prayers for  Rein­
statement, Back Wages, Costs and Attorneys Fees, and 
all Questions o f  Law Respecting Her Resignation and 
Contractual Rights.

The distinct court erroneously assumed that it had no 
jurisdiction to decide appellant’s claims for reinstatement, 
back wages, costs and attorneys fees (R. 192-93). The 
court reasoned, in ruling from the bench, as follows:

“ there are other issues here that have to do with the 
contract, a teacher’s contract, continuing from ’59 
on down, all having to do with tenure or whether the 
resignation was conditional or final or tentative, having 
to do with matters of pay, and all of those things. 
Everyone of those matters are strictly and solely 
within the purview of the State Courts of Florida. 
Federal Courts are not set up for it, it can’t be, and 
won’t be, to solve those kind of individual contractual 
relationships. It is an entirely different aspect of the 
case.” (R. 186).



19

In its written order dismissing appellant’s complaint with­
out prejudice to her right to proceed in state courts, the 
court held as “ outside [its] jurisdiction,”  appellant’s 
“prayer for reinstatement, payment of back salary, costs 
and attorneys fees, and all questions of law respecting her 
resignation and rights under her contract of employment.” 
(R. 192-193).

The district court wholly misapprehended its duty under 
controlling decisions of this court and the Supreme Court 
by dismissing appellant’s claims. The district court failed 
to recognize that its jurisdiction necessarily extends to 
all aspects of this case because only the federal cause of 
action—racially motivated failure to transfer a Negro 
teacher to a white school—was involved. The doctrine 
enunciating this view of federal jurisdiction was estab­
lished as long ago as Osborne v. Bank of United States, 
22 U.S. (9 Wheat) 738 (1824), and affirmed in Siler v. 
Louisville & Nashville Railroad Co., 213 U.S. 175 (1909). 
This court recently emphasized the broad reach of federal 
jurisdiction, in an analogous situation by noting, in Trans- 
aw,erica Insurance Co. v. Red Top Metal, 384 F.2d 752, 
753-754 n. 1, that:

The claim based on supplying labor material and the 
claim for attorney’s fees are not separate grounds 
for the same cause of action; not “ different avenues 
seeking to reach the same end * * * alternative theories 
of recovery for a single wrong” . The claim for at­
torney’s fees is one ingredient of the supplier’s claim 
for protection of his statutory right under the Miller 
Act.

Jurisdiction admittedly attached when suit was filed 
on the Miller Act bond. The district court therefore 
continued to have jurisdiction, regardless of the dis­



20

position of the labor-and-material element of the 
claim. Even, if it be assumed that the right, to at­
torneys’ fees is state-created and severable from the 
principal claim, the district court would have jurisdic­
tion to decide the question. “ The Federal questions 
* * * gave the circuit court jurisdiction, and, having 
properly obtained it, that court had the right to decide 
all the questions in the case, even though it decided 
the Federal questions adversely to the party raising 
them, or even if it omitted to decide them at all, but 
decided the case on local or state questions only.” 
Siler v. Louisville & Nashville Railroad Co., 1909, 
213 U.S. 175, 29 S. Ct. 451, 53 L.Ed. 753. See Osborne 
v. Bank of United States, 1824, 9 Wheat 738, 6 L.Ed. 
204, 384 F.2d at 754 n. 1.

Furthermore, even assuming appellant’s claim for rein­
statement and various monetary awards were affected by 
or subject to state law, the doctrine of pendent jurisdiction 
vests power in district courts to decide state law claims as 
a matter of federal constitutional law. The Supreme Court 
recently made this clear in United Mine Workers v. Gibbs, 
383 U.S. 715, 725 (1966), where it held:

“ Pendent jurisdiction, in the sense of judicial power, 
exists whenever there is a claim ‘arising under [the] 
Constitution, the Laws of the United States, and 
Treaties made, or which shall be made, under their 
Authority . . . ,’ US Const, Art III, §2, and the rela­
tionship between that claim and the state claim permits 
the conclusion that the entire action before the court 
comprises but one constitutional ‘case.’ The federal 
claim must have substance sufficient to confer subject 
matter jurisdiction on the court. Levering & Garri gues 
Co. v. Morrin, 289 US 103, 77 L.Ed. 1062, 53 S. Ct.



21

549. The state and federal claims must derive from a 
common nucleus of operative fact. But if, considered 
without regard to their federal or state character, a 
plaintiff’s claims are such that he would ordinarily 
be expected to try them all in one judicial proceeding, 
then, assuming substantiality of the federal issues 
there is power in federal courts to hear the whole.” 
383 U.S. at 725 (footnotes omitted).

The district court’s failure to accord appellant a hearing 
on claims deemed state lawT issues deprived her of a federal 
forum for vindication in contravention of Gibbs and Hum 
v. Oursler, 289 U.S. 238 (1932). Since the rights of pupils, 
to desegregation include faculty desegregation, Rogers v. 
Paul, supra, and Bradley v. School Board of Richmond, 
supra, this refusal is all the more unjustified in light of the 
requirement that district courts retain, jurisdiction of school 
desegregation cases until the dual system has been dis­
established, Brown v. Board of Education, 349 U.S. 249, 
299-301 (1954); Raney v. Gould School District Board of 
Education, 36 L.W. 4483, 4484 (1968).



22

CONCLUSION

For the reasons stated herein, the Order entered by 
the district court should be reversed.

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
Conrad K. H arper 
W illiam  L. R obinson 

10 Columbus Circle 
New York, New York 10019

E arl M. J ohnson 
R eese Marshall

625 West Union Street 
Jacksonville, Florida

Attorneys for Appellant



23

Certificate of Service

This is to certify that on the 30th day of August, 1968 
I served a copy of the foregoing Brief for Appellant upon 
C. Graham Oarothers, Esq. of Ausley, Ausley, McMullen, 
Michaels, McG-eh.ee & Carothers, Post Office Box 391, Talla­
hassee, Florida, by mailing a copy thereof to him at the 
above address via United States mail, postage prepaid.

Attorney for Appellant



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