Horton v. Orange County Board of Education Brief for Appellants

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

NO. 71-183?
I

STELLA HORTON, et al.,

Appellants,

v.

ORANGE COUNTY BOARD 
OF EDUCATION,

Appellee.

Appeal from the United States District Court 
for the Middle District of North Carolina

BRIEF FOR APPELLANTS

J. LEVONNE CHAMBERS 
JAMES E. FERGUSON, II 
Chambers, Stein, Ferguson & 
Lanning
237 West Trade Street 
Charlotte, North Carolina

CONRAD O. PEARSON 
203 1/2 East Chapel Hill Street 
Durham, North Carolina

JACK GREENBERG 
JAMES NABRIT, III 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



INDEX

Statement of the Case*
Issues Presented . . . . . 

Statement of the Facts 

Argument .............

Page

1

5

. „ 16

i. t h e t e r m i n a t i o n of a p p e l l a n t
STELLA HORTON'S EMPLOYMENT AS
A PUBLIC SCHOOL TEACHER WAS IN
VIOLATION OF HER RIGHT TO DUE
PROCESS OF LAW UNDER THE
FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES ......... . 16

A. Appellant Stella Horton was 
Entitled to be Given Her Notice
of the Reasons for the Termination 
of Her Employment and an Opportunity 
to Confront the Persons Making 
the Charges Against Her in a Fair 
Hearing . ........ ............ . ]_6

B. Procedural Safeguards Take on Added 
Significance in This Case Because 
(1) The Reasons Advanced for the 
Termination of Appellant's Contract 
Were Based Substantially on Hearsay 
Evidence Which Appellant Had no 
Opportunity to Rebut; and (2) The 
Decision to Terminate was not Made
by an Impartial Decision Maker ........ 28

C. The Decision to Terminate the
Appellant's Employment Was Based 
Substantially Upon the Fact that 
the Appellant Had Exercised Her 
Constitutionally Protected Right 
to Assign the Book Manchild in the 
Promised Land .............. .......... „ 35



II.

III.

THE FACTUAL FINDINGS OF THE
DISTRICT COURT ARE CLEARLY
ERRONEOUS .................. ...........

APPELLANTS ARE ENTITLED TO
INJUNCTIVE RELIEF AGAINST THE
RACIALLY DISCRIMINATORY PRACTICES
AND POLICIES OF THE DEFENDANT IN
THE HIRING, ASSIGNING AND TERMINATING
OF BLACK TEACHERS AND SCHOOL PERSONNEL ..

44

. . .47

Conclusion .48



CITATIONS

1 X 1

Cases

r
Page

Aetna Life Insurance Co., v. Kepler, 3.16 
P .2d 1 (8th Cir. 1941) ............ .....  45

Allen v. Asheville 434 F.2d 902 (4th. Cir.
1970) .....................  ............. .. _____ 4

Bcmar v. Keyes, 162 F.2d 136 (2d Cir.)
cert, denied 332 U.S. 825 (1947) ....... ...... 18

Brown v. Board of Education, 349 U.S. 284
(1955) ..... ............ ....... ......... ......  40

Brown v. Hirst, 433 F.2d 899 (4th Cir. 19713 ...___ 25,26

Chambers v. Hendersonville City Board of
Education, 364 F.2d 189 (4th Cir. 1966).. AI

Ferguson v, Thomas, Diet. No. 28277, 5th Cir.
June 23, 1970 at 10 (Slip Op.) .......... 19

Franklin v. County Board of Giles County,
360 F .2d 325 (4th Cir. 1966) .................. 41

Garner v. Louisiana, 368 U.S. 157 (1961) ..... .....  19

Goldberg v. Kelly, 397 U.S. 254, 25 L.ed 2d 
287 (1970) ............... .......... . . 30,32,34

Gouge v. Joint School District No. 1, 310
F.Supp. 984 (W.D.Wis. 1970)........ . . ... 22, 2 5

Green v. County School Board of New Kent 
County, 391 U.S. 430 (1968) ..... . .... . 40

Hodgin v. Nolan, 435 F.2d 859 (4th Cir,. 
1970) . . . . 2 5,26

Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964),...... 17



Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966), 
cert, denied 385 U.S. 1003
(1967) ................ 16,17,18,19,27,41,42,44,

Keyishian v. Board of Regents, 385 U.S. 589
(1967) ..... ........ ........................... .

Keefe v. Geanakos, 418 F.2d 359 (5th Cir.
(1959) ....................... ....... .............

Konigsberg v. State Bar, 353 U.S. 252 (1957) ...... .

Lucas v. Chapman, Dkt. No. 27687, 5th Cir.
August 6, 1970 at 4 (Slip Op.) .............  20,

Lucia v. Duggan, 303 F.Supp. 112 (D. Mass.
1969) .......... ........... ...................

Mailloux v. Kiley, et al., 323 F.Supp. 1387
(D. Mass. 1971) ................................

McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir.

Nesbit v. Statesville City Board of Education,
345 F .2d 333 (1968) ...........................

N. C. Teachers Association v. The Asheboro City 
Board of Education, 393 F.2d 736 
(4th Cir. 1968) .................... . 41,

Norton v. Macy, 417 F.2d 1161 (D.C.Cir. 1969) .......

Ohio Bell Telephone Co. v. Public Utilities
Commission, 301 U.S. 292 (1937) ........ ......

Olson v. Regents of the University of Minnesota,
301 F.Supp. 1356 . .......

Parducci v. Rutland, 316 F.Supp. 352 (M.D. Ala.

Pickering v. Board of Education, 391 U.S, 563, 
20 L.ed 2d 81.1 (1968) ...............___

45

18

38

20

32

23

38

18

47

4/

17

17

23

38

. .. 18,37



V

Pred v. Board of Public Instruction of Dade
County, 415 F.2d 851 (5th Cir. 1969).......  18,37

Rolfe v. County Board of Education, 282 F.Supp.
191 (M.D.Tenn. 1956), aff'd. 391 F.2d 77 
(6th Cir. lf968) .................... ...........  17

Rolfe v. County Board of Education, 391 F.2d 77 
(6th Cir. 1968), affirming 282 F.Supp. 192 
(E.D.Tenn. 1966) ......................... ...... 19

Rcth v. Board of Regents of State Colleges, 310
F .Supp. 97 2 (W .D .Wi s , 1970) ................. 22

Rc';h v. Board of Regents of State Colleges, 446
F.2d 806 (1971) ................................ 22

Schwc.re v. Board of Bar Examiners, 353 U.S. 232
(1957) ............. ........... .......... ...... 20

Slochower v. Board of Higher Education, 350 U.S.
551 (1956) .......................... ..........17,2?

Speiser v. Randall, 357 U.S. 513 (1958) ............. 18

Teel v. Pitt County Board of Education, 272 F.Supp.
7 93 (1957) ............ .............. 21

Thump."on v. City of Louisville, 362 U.S. 199
f 1960)       r9

Tinker v. DesMoines School District, 393 U.S. 503
21 L.ed 2d 731 (1969) ..........................  37

Trister v. University of Miss., 420 F.2d 499
(5th Cir. 1969)     19

United Public Workers v. Mitchell, 330 U.S. 75
(1947)     19

U.S. ex rel. Vajtauer v. Commissioner v. Immigration,
273 U.F. 103 (1927) ............................ 20



VI

Wall v. Stanley County Board of Education,
378 F. 2d 275 (1967) ..... . .................. 41,47

??heeler v. Durham County Board of Education,
363 F . 2d 738 (4th Cir. 1966) ... ............. . 41

1
Wieman v. Updegraff, 344 U.S. 183 (1952) .... . 18

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .............  16

Statutes

28 U.S.C, Section 1343 ............ ................... 2

42 U.S.C. Sections 1981 and 1983 ....................  2



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

NO. 71-1837

STELLA HORTON, et al.,

Appellants,

v.

ORANGE COUNTY BOARD 
OF EDUCATION,

' . Appellee.

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from a judgment of the United States 

District Court for the Middle District of North Carolina, 

Durham Division, denying the plaintiff Stella Horton injunc­

tive relief, reinstatement and back pay in connection with 

the termination of her employment with the Orange County

Board of Education.



2

This action was initially filed on July 15, 1969 by 

Stella Horton and the North Carolina Teachers Association 

and other minor plaintiffs by their next friend, seeking 

preliminary and permanent injunctive relief from the alleged 

racially discriminatory practices of the defendant in the 

operation of its schools and in the hiring, firing, promotion 

and demotion of teachers and school personnel. Plaintiff 

Horton specifically sought reinstatement in her position of 

employment with back pay and expenses. Jurisdiction was 

invoked pursuant to the provisions of Title 28 U.S.C. Section 

1343 and Title 42 U.S.C. Sections 1981 and 198^, seeking 

redress against the State for deprivation of rights, privilege 

and immunities secured by the Constitution and laws Of the 

United States and particularly the Fourteenth Amendment.

On August 4, 1969, defendant answered the Complaint, 

denying the allegations of the Complaint. The case came on 

for trial on September 30, 1970. The triable issues as stipu­

lated by counsel were:

1. Whether the defendant's termination of the contract 
of plaintiff Stella Horton at the end of the 1968-69 
school year violated her rights secured to her by 
the Due Process and Equal Protection Clauses of 
the Fourteenth Amendment to the Constitution of 
the United States.



3

2. Whether the defendant's policies and practices 
in hiring, assigning and terminating contracts 
of teachers and school personnel were'racially 
discriminatory in violation of the plaintiffs 1 
rights secured to them by the Due Process and 
Equal Protection Clauses of the Fourteenth 
Amendment to the Constitution of the United 
States.

3. Whether the defendant's closing of its all-black 
Cedar Grove Elementary School was arbitrary and 
discriminatory and therefore in violation of 
plaintiffs' rights secured to them by the Due 
Process and Equal Protection Clauses of the 
Fourteenth Amendment to the Constitution of the 
United States.

After hearing the evidence in the case, the Court entered its 

Findings of Fact. Conclusions of Law, Opinion and Judgment 

on July 2, 1971. 'Che Court found*

1. That it had jurisdiction over the cause;

2. That the defendant's action in not renewing
the contract of the plaintiff Horton was neither 
arbitrary nor capricious and was not racially 
motivated;

3. That the defendant's practices and policies
in hiring, assigning and terminating contracts 
of black teachers and other school personnel 
were not racially discriminatory; and

4. That the defendant's decision to close the all­
black Cedar Grove Elementary School was based 
solely upon lawful efforts of the defendant Board 
to accomplish a racially integrated school system 
and was not racially discriminatory.

Accordingly, the action was dismissed with prejudice with

each of the parties bearing their own costs.



On July 29, 1971, plaintiffs gave notice of appeal.

On this appeal, plaintiffs do not pursue their claim 

that the closing of the all-black Cedar Grove Elementary 

School was a violation of plaintiffs' rights. Allen v. 

Asheville, 434 F.2d 902 (4th Cir. 1970). Plaintiffs do, 

however, contend on this appeal that plaintiff Horton was 

wrongfully dismissed and that defendant's policies and 

practices with reference to its black school personnel are

discriminatory



5

Issues Presented

Whether the termination of appellant Horton's employ­

ment as a public school teacher was in violation cf her 

right to due process of law where:

a. No prior reason or notice was given for the 
termination;

b„ The termination was premised upon hearsay
reports regarding the activities and conduct 
of the appellant; no opportunity was pro­
vided for appellant Horton to confront persons 
making charges against her,either before or 
after the termination and the decision to 
terminate was not made by an impartial Board;

c. The termination was "based substantially upon 
the fact that appellant Horton exercised her 
rights under the First Amendment in assigning 
the book Manchild in the Promised Land to her 
class;

a. The racial activit3.es of appellant Horton were 
a factOT' in the decision to terminate her 
employment.

II .

Whether the findings of the District Court were clearly 

erroneous under Rule 52 of the Federal Rules of Civil Procedure.

Ill.

Whether the appellants are entitled to injunctive relief 

against the racially discriminatory practices and policies of

| . ' L  ,  ^

derendant in the hiring, assigning and terminating of black



teachers and school personnel.



7

Statement of the Facts

The appellant Stella Horton is an educator, holding 

an A Certificate for teaching in the State of North Carolina. 

She attended the public schools of Pittsborough, North 

Carolina where she graduated from high school in 1962 as 

Valedictorian of her graduating class. She attended St. 

Augustine College in Raleigh, North Carolina from 1962 

through 1964 as a history and government major.. She trans­

ferred from St. Augustine to A. & T. State University at 

Greensboro, North Carolina in 1964. While attending A. & T. 

State University, she majored in history and graduated magna 

cum laude in 1966. In her college years, she was cited in 

Who1s Who in American Colleges and Universities, was a member 

of Alpha Kappa Mu National Honor Society, and a member of 

Sigma Rho Sigma National Science Honor Society. She did 

further study at the University of North Carolina at Chapel 

Hill, North Carolina and North Carolina Central University 

at Durham, North Carolina (113a, 114a, 687a).

She did her practice teaching at Central High School 

in the Orange County Public Schools in Hillsborough, North 

Carolina during the spring of 1966. The teacher under whom 

she did her practice teaching rated her as the best student



8

teacher she had ever had (459a). Based upon her performance 

as a student teacher, she was hired as a regular teacher for 

the following school year beginning September, 1956. She was 

assigned to teach History and Social Studies at the then all­

black Central High School. She taught these courses success­

fully at Central High School for two years, during which period 

she was rated as a superior teacher by her principal and 

colleagues and was cited by the student newspaper as being an 

outstanding instructor (468a, 647a, 656a,’ 661a, 665a) . During 

the two year period that the appellant Horton taught at the 

all-black Central High School, she encountered no difficulties 

with students, parents or teachers.

Appellant Horton's troubles began with the 1968-69 

school year when grades 10, 11 and 12 cf the formerly all­

black Central High School were transferred to the Orange 

High. School. The School Board had initially planned to transfer 

only grade 10 from Central to Orange High School, but as a 

result of protests by black students at Central High School, 

the Board changed its plan and transferred all three grades 

(395a, 396a). All teachers teaching in those grades were 

similarly transferred from Central High School to Orange High 

School. Appellant Horton was among those teachers who were



9

transferred. The transfer of grades was attended by a good 

measure of racial turmoil and gave rise to certain grievances 

among the black students being transferred. Stella Horton 

became very closely identified with the black students in 

seeking redress for their grievances at the Orange High School 

(114a, 115a, 326a, 327a, 397a).

On October 7, 1968, a group of approximately nine white 

parents complained that Miss Horton was teaching communism 

and negro history in the schools (532a), The School Board 

had the complaint investigated by the Superintendent and, after 

investigation, found the charges to be without substance and 

renewed its confidence in the appellant as a teacher (535a,

536a). Again, On November 4, 1968, a large group of white 

persons appeared at a Board meeting complaining further about 

Miss Horton teaching it. the schools. Among the persons 

appearing with the white group were Bob Haas and Roland Scott, 

both of whom were later elected to the School Board and voted 

to terminate Miss Horton's contract. Bob Haas made the 

motion that the Board terminate Miss Horton's contract (542a)

At that November 4 meeting, Bob Haas expressly requested 

to go.on record as requesting an investigation of Miss Horton 

by the State Bureau of Investigation and the Federal Bureau 

of Investigation (538a). The record does not disclose what



10

action, if any, was taken as a result of the November 4 meeting. 

In March of 1969, Miss Horton gave her students an 

assignment of making a book report on one of two books,

Manchild in the Promised.Jtand by Claude Brown or The Jungle 

by Upton Sinclair, She requested the students to purchase 

whichever book they chose to report on. In order to facilitate 

the acquisition of the books, Miss Horton purchased the books 

from a book store. She then allowed her pupils to purchase 

the books from her at the discount price of $.95 per copy.

Some of the parents of the white students in Miss Horton's 

class complained to Mr. Fred Claytor, Principal of Orange 

High School, that Miss Horton had assigned the book Manchild 

in the Promised Land (342ji) . None of the parents had any 

complaints about the assignment of the book The Jungle (354a). 

The complaint of the parents was that the book was full of 

filth and four-letter words and they did not consider it to 

be appropriate reading for their high school children. The 

day after Mr. Claytor received the complaints of the parents, 

he summoned Miss Horton to his office to inquire about the 

book. He told Miss Horton that he did not think it was good 

judgment to have the students reading the book. He felt that 

the book was inappropriate reading for high school students, 

notwithstanding the fact that the book appeared on a list of



11

approved reading published by the. Department of Public Instruc­

tion (345a). At this conference between Mr. Claytor and Miss 

Horton, Mr. Claytor cold J4iss Horton that he would recommend 

that her contract be terminated as of the end of the school 

year (356a, 357a, 699a, 700a). Ho further told Miss Horton 

that he would call all of her students to the auditorium and 

colLect the books and have her refund all the money to the 

students. Miss Horton asked to be given the opportunity to 

collect the books and return the money herself. Mr. Claytor 

agreed to this procedure. Mr. Claytor knew of no written 

policy prohibiting Miss Horton from requiring students to 

purchase supplementary materials either at that time or at 

trial (311a, 351a). Neither was Miss Horton aware of any 

policy or regulation prohibiting her from requiring students 

to purchase supplementary materials (696a, 697a, 755a).

At a meeting of the faculty on the following day, Mr. 

Claytor announced that he would recommend that Miss Horton's 

contract be terminated. He read a portion of the book to the 

faculty and stated that the book was filthy (703a, 704a).

He later told some of the teachers that Manchild in the Promised 

Land was banned from the campus (705a, 706a). Mr. Claytor 

recommended to the Superintendent that he acquire copies of 

the Promised Land and distribute them to theManchild in members



12

of tne Board of Education. The Superintendent did acquire 

the copies and distributed them to the Board at a meeting 

of the Board (420a, 421a).

Sometime after Mr. Claytor had advised Miss Horton, 

his faculty and the Superintendent that he would recommend 

that Miss Horton's contract be terminated, it was reported 

to him that one of Miss Horton's students had sold some 

copies of the book Manchild in the Promised Land to some 

of the other students in Miss Horton's presence and turned 

the money over to Miss Horton. This was two or three weeks 

after Mr. Ciaytor's conference with Miss Horton (785a, 786a).

At the May meeting of the Board of Education, Mr.

Claytor presented his official recommendations co the Board 

regarding teacher employment for the following year. The 

list that was presented to the Board at this meeting contained 

the statement "I have already requested that Miss Horton not 

be rehired. This matter has been turned over to the Orange 

County Board of Education's Attorney." (229a, 230a).

By letter dated June 4, 1969, Miss Horton was advised 

by the Superintendent of Schools that her contract to teach 

in the Orange County School System was terminated at the close 

of the 1968-69 school year. No reason for the termination was 

stated in the letter. On June 10, 1969, the plaintiff submitted



a written request for a hearing to the Board of Education,

On June 17, 1963, Miss Horton received a letter from the 

Superintendent advising that a hearing was scheduled for 

8 o' clock p.m. on June 23, 1969 (708a-710aj. None of the 

letters sent to Miss Horton by the Superintendent stated 

any reason for the termination of her contract. On June 23, 

1969, Miss Horton appeared before the Board with counsel.

Upon Miss Horton's appearance before the Board, the Board 

Chairman turned the meeting over to the attorney for the School 

Board. Miss Horton's counsel inquired of the Board attorney 

as to what the reasons were for the termination of her contract. 

The Board attorney stated that there were no reasons. Miss 

Horton's counsel stated then that .if there were no reasons 

or charges, there could be no hearing. Miss Horton and her 

counsel then left the meeting (723a, 724a).

Although the record is not clear as to when the Princi­

pal, Mr. Claytor, discussed with the Board the termination of 

Miss Horton's contract, he states that he bassd his recommenda­

tion upon four factors:

That Miss Horton was trying to undermine his 
administration by circulating a rumor that a 
student had cursed her and the Principal had 
refused to expel the student contrary to her 
wishes;

1.



14

2. That Miss Horton had told the student that 
"he (the student) stunk";

3. That Miss Horton had frightened several of 
her students and particularly one student who 
was seeking to become enrolled in her class; and

4. That; Miss Horton had required her students to 
purchase and read Manchild in the Promised Land 
(358a, 359a).

All of the information which the Principal received regarding 

Miss Horton’s performance in her classroom and her relation­

ship with the students was based upon reports from students 

and parents. All of the students and parents who complained 

to Mr. Claytor about Miss Horton were white (354a). Only 

once during the school year did the Principal arrange a con­

ference between Miss Horton and the complaining student and 

that was a brief meeting with Miss Horton and the student 

involved in the deoderant incident. At no time during the 

year did the Principal mention to Miss Horton that her job 

was in jeopardy except when the incident involving Manchild 

in the Promised Land arose. The complaining parents and 

students did not appear before the board and were not called 

as witnesses upon the trial of the case.

Prior to the 1964-65 school year, the Orange County 

Board of Education operated a racially segregated dual school- 

system with certain schools serving white children and certain



15

schools serving black children. Black professional personnel 

were employee, in black schools and white professional personne 

were employed in white schools. Beginning with the school 

year 1964, students could be assigned to a school -where their 

race was in the minority by application to and approval by 

the Board of Education. The first year in which a teacher 

was assigned to a school in which his or her race was in 

the minority was 1966.

During the 1967-68 school year, the Orange County 

Board of Education employed 74 black teachers and 135 white 

teachers. Beginning with the 1.969—7U school year, the year 

following the termination of Miss Horton's contract, the 

number of black teachers in the school system had decreased 

to 68 and the number of white teachers in she school system 

had increased to 149.



16

ARGUMENT

I

THE TERMINATION OF APPELLANT 
STELLA HORTON'S EMPLOYMENT 
AS A PUBLIC SCHOOL TEACHER 
WAS A VIOLATION OF HER RIGHT 
TO DUE PROCESS OF LAW UNDER 
THE FOURTEENTH AMENDMENT TO 
THE CONSTITUTION OF THE UNITED 
STATES

A„ Appellant Stella Horton Was Entitled to be
Given Notice of the Reasons for the Termination 
of Her Employment and an Opportunity to Confront 
the Persons Making the Charges Against Her in a 
Fair Hearing

It has been clearly established in this Circuit that: 

a public school teacher has a right to be free from arbitrary 

and capricious action by a school b^ard in connection with 

her employment. "However wide the discretion of School 

Boards, it cannot, be exercised so as to arbitrarily deprive 

persons of their constitutional rights." Johnson y , Branch,

364 F . 2d 177 (4th Cir. 1966), cert.. deni ed 385 U.S. 1003 (1967) 

The Supreme Court long ago sharply rejected the "idea" 

that "One man may be compelled to hold his . .. . means of

living. . . at the mere will of another. . . ." yick Wo v .

Hopkins, 118 U.S. 356, 370 (1886). [Ajbsolute and un-



controlled discretion invites abuse." Hornsby v. Allen,

326 F .2d 605, 610 (5th Cir. 1964).

As stated by Mr. Justice Cardozo in Ohio Bell. Telephone 

Co. v . Publie Utilities Commission, 301 U .S . 292, 302 

(1937), the very essence of due process is the"protection of 

the individual against arbitrary action." Accord, -Slothover 

v. Board of Higher Education, 350 U .S . 551, 559 (19551.

Consequently, the court in Norton v. Macy, 417 F,2d 1161,

1164 (D.C, Cir. x969), insisted that "the Government's

obligation to accord due process sets at least minimal sub­

stantive limits on its prerogative to dismiss its employees:

It forbids all dismissals which are arbitrary and capricious."

While the school board certainly has discretion in 

such cases, the term "discretion means the exercise of judg­

ment, not bias or capriciousness. Thus, it must be based on

fact and supported by reasoned analysis." Johnson v. Branch, 

364 F . 2d 1.77, 181 (4 th Cir. 1966), cert, denied, 385 U.S.

1003 (1967). "Discretion" should not empower a school board

summarily to cut off a teacher's continued livlihood by fiat

deriving from no dictate of reason. Cf. Rolfe v,_County

Board of Education, 282 F.Supp. 191, 199 (M.D.Tenn, 1956), 

aff1d, 391 F .2d 77 (6th Cir. 1968).



IS

Moreover, a school board's refusal to disclose reasons 

for terminating a teacher's employment might well mask 

constitutionally forbidden reasons for such termination.

Cf- Speiser v, Randall, 357 u.S. 513, 526 (1958).

For exanpie, the failure to give reasons might facilitate 

a.i, attempt by the school board to punish the teacher for 

che exercise of rignts protected by the Constitution or 

federal statutes, including such First Amendment rights as 

freeo.om of speech and freedom of association. Overwhelming 

authority holds that no public employee - including a non- 

tenured teacher - may be terminated from his employment 

because of the exercise of such rights. E.g., Pickering v.

Bpp'-d o-F Education, 391 U.S. 563, 568 (1968) ,* Keyishlan y.

Board of Regents, 385 U.S. 589, 605, 606 (1967); Wieman v.

' 344 U.S. 183 (1952);- Bomar v. Keyes, 162 F.2d 136

(2d Cir.), cert. denied, 332 U.S, 825 (1947); Johnson v 

Branch, 364 F.2d 177 (4th Cir. 1966), cert, denied, 385 U S 

1003 (1967); Pred v.Board of Public Instruction, 415 F.2d 

851 (5th Cir. 1969); McLaughlin v. Tilendis, 398 F.2d 287 

(7th Cir. 1968).

Similarly, the failure to give reasons might serve as 

a subterfuge for racial, religious or other invidious dis­

crimination prohibited by the Constitution. See Wieman v.



Updegraff, 344 U.S. 183, 191-192 (1952); United Public 

Workers v. Mitchell, 330 U.S. 75, 100 (1947) ("Congress 

could not enact a regulation providing that no Republican,

Jew or Negro shall be appointed to federal office, or that 

no federal employee shall attend Mass or take an active 

part in missionary work."); Johnson v. Branch, 364 F.2d 

177, 182 (4th Cir. 1966), cert, denied, 385 U.S. 1003 (1967); 

Rolfe v. County Board of Education, 391 F.2d 77, 79 (6th Cir. 

1968), affirming 282 F.Supp 192 (E.D. Tenn. 1966). See also

Trister v. University of Miss., 420 F.2d 499 (5th Cir. 1969); 

Ferguson v. Thomas, Dkt. No. 28277, 5th Cir., June 23, 1970, 

at 10 (Slip Op.) ("Ordinarily a college would not have the 

right to single out one instructor for the imposition of 

restrictions which are not applicable to all others similarly 

situated.").

The failure to give reasons for termination of employ­

ment might also cover up reasons which are "totally devoid 

of evidentiary support" and are therefore wholly without any 

factual basis. See Garner v . Louisiana, 368 U.S. 157, 163 

(1961); Thompson v. City of Louisville, 362 U.S, 139 (1960).

It is clearly established that "even in the area of non­

constitutional reasons, the board's decision must not be wholly 

unsupported by evidence else it be so arbitrary -as to be a



.20

constitutional violation.” Lucas v. Chapman. Dkt. No. 27687, 

5th Cir. August 6, 1970, at 4 (slip Op.); see Konigsberg

Z^Jtate_Bar, 353 U.S. 252, 262 (1957); Schware v. Board

of Bar Examiners. 3 55 tt n 7 70 oon on .. ,---------- ------  -- u.£>. 272, 238-39 (195/); Uni led States^

au^Xr_^ommissioner of immigration 27 3 U.S.
103, 1C6 (1927).

This right to be free from arbitrary and capricious 

action by school boards would be meaningless in the absence 

of some procedural safeguards by which to assure that the 

right is protected. Appellant submits that the very fundamen­

tals of due process require that at the very least one be given 

notice O.L. the reasons or charges, an opportunity to defend 

against those charges or reasons, the right to confront 

and cross-examine witnesses making the charges and a fair 

and impartial hearing with the right to counsel. in the 

instant case, appellant Horton was never advised as to the 

reasons for her termination. it was only after suit had been 

filed and discovery proceedings undertaken, that she beer an 

to uncover the reasons which prompted the School Board to 

terminate her employment. In fact, no full disclosure was 

made until the case was actually tried.

Although appellant Horton requested in writing a hearing 

before the Board and. after being told that she would be granted



21

a hearing before the Board she was, in effect, denied a 

hearing. it is true that the Board allowed her to appear 

before it, but when she inquired of the Board as to the 

reasons for the termination of her employment she was told 

there were no charges. She then responded through her 

attorney in the only way she could which was that since 

there were no charges, there could be no hearing. By stating 

to appellant Horton that there were no charges, the Board 

m  efrect told her that she could not nave a hearing. Had 

she attempted to go forward with the- hearing, she would have 

been at a complete loss for making any meaningful defense.

In those circumstances, she could not reasonably be expected 

to prepare a defense to unknown charges or to summon,and 

cross-examine witnesses, unknown and apparently not present.

The importance of procedural safeguards in protectina 

substantive rights has been recognized in a number of cases 

in district courts as well as by the United States Supreme 

Court. in Teel v. Pitt County Board of Education. 272 F.Supp 

793 (1967), a district, court stated:

In judging the performance of 
teachers with an eye to retention, 
promotion or dismissal, non-racial 
criteria again must be used.
The recommendation of the teacher's



22

principal should continue to be 
a primary consideration, provided 
the principal appraises the individ­
ual with a racially-unbissed eye. 
Fundamental fairness requires that
_a_heacher be notified of the_ eharges
against him or her and that he or 
she be given an opportunity to 
respond to the knowledge of and 
right to demand a hearing before 
final action is taken in cases of 
dismissal. (Emphasis added) .

Simi1arly in Roth v. Beard of Regents of State Colleges,
1310 F.Supp 972 (W.D.Wis. 1970) , the Court stated:

Substantive, consti tut i on a 1 
protection for a university professor 
against non-retention in violation 
of his First Amendment rights or 
arbitrary non-retention is useless 
without procedural safeguards . I 
hold that minimal procedural due 
process includes ? statement of the. 
reasons why the university intends 
not to retain the professor, notice 
of a hearing at which he may respond 
to the stated reasons and a hearing 
if the professor appears at the 
appointed time and place. At such 
a hearing, the professor must have 
a reasonable opportunity to present 
evidence relevant to the stated reasons.

Although a university professor was involved in the Roth

case, that same Court applied similar reasoning to a public

school teacher in Gouge- v. Joint School District No. 1, 310

1 The reasoning and decision of tl 
Roth have recently been affirmed by the 
of Appeals. Roth v. Board of Regents of

te Hi. s tr
C J p V y  y v*>, -j- "H

State C

i. c t
Ci

Court in 
ic cu i t C oi.i r t

AAZ.
F.2d 006 (1971).



23

F.Supp. 984 (W.B.Wis. 1970) where the Court stated;

Moreover, in Roth, I decided 
that the substantive guaranties 
required procedural protection. In 
this respect, also, I hold that, like 
a professor in a State university, 
a teacher in a public elementary 
or secondary school is entitled to 
a statement of the reasons for con­
sidering non-renewal, a notice of 
a hearing at whicn the teacher can 
respond to the stated reasons, and 
the actual holding of such a hearing 
if the teacher appears at the , 
specified time and place. A necessary 
corollary to this proposition - not 
stated in Roth - is that the Board's 
ultimate decision may not rest on a 
oasis of which the teacher was never 
notified, nor mav it rest on a basis 
to which the teacher had no fair 
opportunity to respond.

Likewise, in Lucia v. Duggan, 303 F.Supp. 112 (D.Mass. 

1969), the Court held that a non-tenured teacher was entitled 

to adequate notice and a hearing before he could be suspended 

or di smissed. Olson v. Regents of the University of ...Minnesota, 

301 F.Supp. 1356, took a similar approach.

lR Slochower v . Board of Higher Education, 350 U.S. 551 

(1956), the United States Supreme Court followed the same 

principle in a case involving the summary dismissal of a 

professor at the City university. In reversing the dismissal 

of the complaint because there had been an unconstitutional

lack of fairness in the proceedings that lead to the terraina-



24

tion of Slochower's employment, the Court stated at page 559:

This .is not to say that Siochower 
has a constitute onal right to be an 
associate professor of German at 
Brooklyn College. The State has broad 
powers in the selection and discharge 
of its employees, and it may be that 
proper inquiry would show Slochower's 
continued employment to be inconsistent 
with a real interest of the State..
But there has been no such inquiry here.
We hold that the summary dismissal of 
appellant violates due process of lav/.

In the instant case it is not clear whether the reasoning 

of the district court is to the effect that no hearing is 

required or that a hearing was in fact held. At page 113 

of the Appendix, the Court made the following finding:

After being notified that her 
contract would, be terminated for the 
following year, the plaintiff requested 
a hearing before the Board for the 
purpose of contesting the termination 
of her contract. Such a hearing was 
held on June 23, 1969. At said hearing, 
the Attorney for the School Board 
informed the plaintiff that there were 
no charges against her whereupon the 
plaintiff and her attorney refused to 
proceed any further and thereafter 
left the meeting.

Following its finding, in its discussion, the Court made the 

following statement:

It will be observed that school 
authorities are not required to grant 
a hearing or to prefer charges in 
cases where the teacher is not recommended



2 5

for employment with the school system 
for the following year, although such 
procedures are available to a teacher 
dismissed during the school year.
i

The Court made note of the fact, that the appellant did not 

challenge the State statutes governing the dismissal of 

public school teachers and the termination of teacher 

employment. The Court then cites Brown v. Hirst, 433 F.2d 

899 (4th Cir. 1971) and Hodgin v. Nolan, 435 F.2d 859 

(̂ •th Cir. 1970 for the proposition "that there is no vested 

right to public employment so long as the termination of 

a contract is 'not in retribusion (sic) for an exercise 

of some constitutionally protected right'.'1

Insofar as the District Court relies upon the pro­

visions of the North Carolina statutory law in finding that 

a public school teacher is not entitled to a hearing in connec 

tion with the termination of her employment, appellant 

submits that State law is not controlling. See Gouge v.

Joint School District No. 1, supra. Insofar as the District- 

Court relies upon Hodgin v. Nolan, supra and Brown v. Hirst, 

supra, appellant submits that those decisions are not applica­

ble to the appellant's situation because the facts are 

different as is the nature of the employment involved.

The Orange County Board of Education apparently recogniz 

that in these circumstances a hearing was appropriate and in



26

face se<_ up a day and. tiros j.or tlis hearing. Thus, the Board 

recognized that it was not prohibited by State law from 

Providing a hearing for the appellant and that the State law 

was not and could not he a limitation on the Fourteenth 

Amendment. What the Board failed to recognize was that any 

hearing, to be meaningful, must afford the aggrieved party 

some meaningful procedural safeguard such as right to notice 

and an opportunity to confront witnesses. The statutes are 

therefore not contested in this proceeding because the statutes 

do not prohibit the School Board from according due process 

to public school teachers.

In Hodgin, supra, the Court pointed out that.: "As City 

librarian, Mr. Hodgin held his position at the will and 

pleasure of the City. There was no contractual or other arrange­

ment limiting the right of termination.K Furthermore, it 

does not appear tnat the plaintiff in Hodgin either requested 

or appeared for a hearing. In Brown, supra, the Court pointed 

out:
Thus, as in Hodgin, the appellant 

in the instant case was employed at 
the will and pleasure of the City 
and thus was subject to dismissal so 
long as it was not in retribus ion 
for an exercise of some constitutionally 
protected right.

The Opinion in Brown does not disclose what the 

the employment was that the City employee there

nature of

c onvo 1 a i nod



about.

The teaching profession is distinguishable from 

other public employment by reason of the fact that when one's 

employment as a teacher is terminated for reasons that might 

reflect upon one's reputation and integrity as an educator, 

the consequences may be to effectively bar a teacher from 

following his or her chosen profession. This is particularly 

true where the termination of a teacher's employment is 

related to some protected activity of the teacher.2 The 

importance of the teaching profession has been recognized by 

this Court. As the Court stated m  Johnson v. Branch, supra:

The Supreme Court has recently 
had occasion to consider the law 
in this and analogous areas. It has 
pointed out on numerous occasions 
the importance of the teaching pro­
fession in our democratic society 
and the necessary of protecting its 
personal, associational ana academic 
liberty.

I.c. and I.d.2 See Argument infra



28

B. Procedural Safeguards Take on Added Significance 
in This Case Because (1) The Reasons Advanced for 
the Termination of Appellant's Contract Were Based 
Substantially on Hearsay Evidence Which Appellant 
Had no Opportunity to rebut; and (2) The decision 
to Terminate was not Made by an Impartial Decision 
Maker

(1) Each of the Board members who voted for the 

termination of Stella Horton's contract stated that he relied 

totally upon the recommendation of the Principal. None of 

the Board members conducted any independent investigation 

of Miss Horton to determine whether or not the factors 

presented to them by the Principal were, in fact, true and 

substantial. Thus, the action of the Board in terminating 

appellant's contract must be measured by the factors which 

motivated the Principal to recommend termination. The 

Principal stated in depositions and in his testimony at trial 

that his reasons for recommending termination of appellant's 

employment were that:

a. it would be in the best interest of the 
Orange County School System and particularly 
Orange High School;

b. Some of the students in appellant's class 
were frightened of her;

c. Appellant was attempting to cause other 
teachers to mistrust him, thereby undermining 
his adminis trat.1 on;

j



d. Appellant told certain students that they 
stunk; and

e. Appellant requested her students to purchase 
the book Manchild in the Promised Land.

(302a-306a,. 322a, 335a, 358a) . With reference to all of 

the reasons except the incident involving; the book assignment, 

the Principal admitted that he based his evaluation of 

appellant's conduct upon reports given him by students and 

parents. He did not observe her personally in her classroom 

performance and her relationship with students. The reports 

that he received from students and parents were not written 

and he made no notes of the information he received (327a- 

329a) . At no time during the school year did he arrange 

any conference between the appellant and the complaining 

students and parents, except in the one incident involving the 

use of the can of deodarant, although appellant specifically 

requested conferences with students and parents who may have 

had complaints about her (332a, 718a). All of the students 

and parents who reported to the Principal concerning the 

various incidents which lead the Principal to his recommenda­

tion were white. There were no complaints from black students 

and parents (354a). During the two previous school years whil 

appellant was teaching at an all-black school, there were no



30

complaints regarding her classroom conduct or her relation­

ship with the students. Several black students who were in 

appellant's class at Orange High School testified at trial 

that they found the appellant to be an excellent teacher 

and were not in any way frightened of her.

None of the persons who furnished information to the 

Principal regarding appellant's conduct and her relationship 

to the students appeared before the Board of Education, so 

that the Board was left to rely entirely upon the information 

furnished it by the Principal. None of the persons who 

furnished information to the Principal were produced at the 

hearing where the plaintiff inquired of the charges against 

her. Even after appellant filed suit, the Board stated in 

its Answers to Interrogatories filed on September 22, 1969 

that no reason existed for the termination of appellant's 

employment. In their Supplemental Answers to Interrogatories, 

filed on March 20, 1970, the Board stated for the first time 

the reasons why Miss Horton's contract was terminated. Thus, 

it was almost a year after her termination that appellant 

was first apprised of the reasons for such termination. The

Supreme Court of the United States in Goldberg v . Kelly, 

397 U.S. 254, 25 L.ed 2d 287 (1970) had occasion to consi

the essentials of procedural due process in connection wi



3

the termination of the benefits of welfare recipients. 

The Court there stated at pages 299-300:

’ The fundamental requisite of 
due process of lav; is the opportunity 
to be heard. . . , The hearing must
be at a meaningful time and in a 
meaningful manner. . . . In the
present context these principles 
require that a recipient have timely 
and adequate notice detailing the 
reasons for a proposed termination 
and an effective opportunity to 
defend by confronting any adverse 
witnesses and by presenting his own 
arguments and evidence ora1ly.

‘k  *k

In almost every setting where 
importcLnt decisions turn on questicns 
of fact., due process requires an 
opportunity to confront and cross- 
examine adverse witnesses. . . .
Greene v. .McElroy, 360 U.S. 474.
. . is particularly pertinent here: 

'Certain principles have remained 
relatively immutable in our jurisprudence. 
One of these is that where governmental 
action seriously injures an individual, 
and the reasonableness of the action 
depends on fact findings, the evidence 
used to prove the Government's case 
must be disclosed to the individuals 
so that he has an opportunity to show 
that it is untrue. While this is impor­
tant in the case of documentary evidence, 
it is even more important where the 
evidence consists of the testimony of 
individuals whose memory might be 
faulty or who, in fact, might be per­
jurers or persons motivated by malice, 
vindictiveness, intolerance, prejudice,



32

or jealousy. We have formalized 
these protections in the requirements 
of confrontation and cross-examination.'

In the instant case where substantially all of the 

facts serving as the basis for the termination of appellant's 

employment were a result of hearsay, the principles enunciated 

in Goldberg are particularly significant. The appellant 

never had the opportunity to cross-examine her accusers either 

before or after termination. Moreover, even at the trial 

in the District Court, none of the persons who furnished 

information to the Principal were produced, so that the School 

Board cannot even argue that the appellant had 

at trial. See, e.g. Lucas v. Chapman, supra.

the opportunity



33

(2j The Orange County School Board: which voted to 

terminate the contract of Stella Horton was a five member 

Board. Four members of the Board voted for termination.

The lone black member of the Board did not. concur in the 

decision to terminate (562a). Two of the rour Board members 

who voted for the termination had appeared before the Board, 

prior to their electron to Board membership as key members 

of a white group to register complaints against Miss Horton 

and to request that she. be investigated by the FBI and the 

SBI' and apparently seeking to have appellant Horton removed 

from the school system during the school year.

The two members who had previously comp3.ai ned about 

Miss Horton to the Board could in no sense be considered to 

be impartial in their evaluation of her. Their decision to 

terminate was undoubtedly infected by the previous bias 

against the appellant which they had already demonstrated.

The hearsay reports of the Principal simply provided them 

with the excuse to take action which they no doubt would like 

to have seen become a reality in November of 1969. When asked 

about their reasons for terminating Miss Horton's employment, 

one of them, Mr. Roland Scott, replied that he didn't remember

He stated that he simply concurredwhat his reasons were.



in the Principal's recommendation although he was unable to 

recall what reasons were advanced by the Principal for the 

recommendation (2*51?-254a) . The other Board member in 

question, Mr. Robert B. Haas, made no effort to verify any 

of the charges made against Miss Horton by the Principal.

He felt that the recommendation made by the Principal was 

ample (278a). Of the three remaining Board members who had 

notdemonstrated any previous bias against Stella Horton, 

only two voted for the termination. Only two persons then 

who might be deemed to be impartial with reference to the 

appellant’s employment voted for the termination. To the 

extent that Roland Scott and Robert Haas participated in the 

decision, the appellant was not judged by an impartial dscisio 

maker.

Here again, Goldberg v. Kelly, supra is instructive.

The Goldberg Court held that an impartial decision maker is 

an essential element of the procedural requirements of due 

process. The reason for the requirement of an impartial 

decision maker is obvious. For all of the other elements 

of procedural due process would be meaningless if the decision 

maker were left free to base his decision upon his own pre­

conceived opinions and biases rather than the objective infor­

mation which comes to his attention. When one is judged by



35

a decision maker who may have an ax to grind it is at best 

difficult to determine to what extent the bias is entered 

into the decision and at worst, likely that he would, use 

his decision making authority as an opportunity to vindicate 

his preconceived opinions and biases.

C. The Decision to Terminate the Appellant's 
Employment Was Eased Substantially Upon the 
Fact that the Appellant Had Exercised Her 
Constitutionally protected Right to Assign 
the Book Manchi1d in the_Promised Land

It seems clear from the record in this case that of 

all the reasons advanced by the Principal for .recommending 

the termination of the appellant's employment;, the basic 

reason was the fact that she assigned the book Manchild in

to her history class. Although the District 

Court made much of the fact that the appellant resold the 

book after being forbidden to do so, that facr. did not enter 

into the Principal's recommendation of termination. The 

Principal reached his conclusion that the appellant’s employ­

ment should be terminated immediately upon finding out that 

the plaintiff had required her students to purchase Manchild 

-iS-— y?.®. Proniise<3 Land. Weeks before he discovered that a student- 

had resold the book, he had already told the appellant, his 

faculty and Superintendent tnat he would never recommend her



36

for continued employment. When he summoned the appellant 

to his office the day after she had assigned the book, his 

first reaction was to remark how filthy he thought the book 

was. Even when he announced to the faculty on that same 

day chat ne was recommending the termination of the appellant1s 

employment, he read passages of the book to the faculty and 

remarked how filthy he deemed the passages to be. His concern 

with the content of the book continued to manifest itself by 

his suggestion to the Superintendent that he acquire copies 

of the book and distribute them to the Board members so that 

they could be familiar with the contents of the book when 

they came to consider his recommendation for termination.

At that time, and even at trial, the Principal was not aware 

of any written policy of the Board prohibiting the appellant 

from requiring her students to purchase supplementary materials. 

He expressed no concern about the assignment of the book The 

Jungle. In fact, no parents had complained about the assignment 

°f The Jungle. Even the Superintendent was not aware of any 

written policy of the Board which had been violated on the 

appellant's part by requiring her students to purchase the 

book. The Superintendent stated at trial that the Board

policy could cover the purchase of supplementary materials, but



37

not directly.

When asked in depositions about their reasons for 

concurring in the recommendation to terminate the appellant's 

employment, none of the Board members mentioned the violation 

of a Board policy as figuring in their decision. They all 

remarked that they relied completely upon tne recommendation 

of the Principal. There can be no question then that the 

contents of the book figured largely in the decision to 

terminate. We must then turn to the question of whether the 

contents of the book itself is a constitutionally permissible 

reason for the discharge of the appellant. The fact that 

the school Principal deemed Manchild in the Promised Land 

to be inappropriate reading for high school students and the 

fact that the Board may have concurred in his evaluation 

of the book are not determinative. The Fourteenth Amendment 

affords protection to public school teachers in the exercise 

of their First Amendment rights both outside the school house 

and inside the school house. Pickering v. Board of Education, 

391 U.S. 563, 20 L.ed 2d 811 (1968); Tinker v , BesMoin.es

School District, 393 U.S. 503, 21 L.ed 2d 731. (1969); See

also Pred v. Board of Public Instruction of Dade County,

415 F.2d 851 (1969). But the protections of the Fourteenth



Amendment do not stop there. In addition, public school

teachers are atllowed some measure of academic freedom in 

regard to their teaching in the classroom .. Keefe v, Geanakos, 

418 F.2d 359 (5th Cir. 1959); Parducci v. Rutland, 316 

F .Supp. 352 (M.D.Ala. 1970); Mailloux v . Kilev, et a l ,

323 F.Supp. 1387 (P.Mass. 1971). In Keefe, a public school 

teacher had assigned a magazine article which.contained 

the word "motherfucker". The word was highly offensive 

to some of the parents of the students who were in the class. 

The plaintiff in that case claimed he was within his rights 

as a teacher in assigning the article. The Court found that 

the context in which the word, was used and assigned was not 

such as would warrant the School Board to terminate the 

plaintiff's employment. In Parducci, the plaintiff school 

teacher had given her class an assignment of reading a short 

story which school officials described as "literary garbage" 

and which they deemed to condone the killing off of old 

people and free sex. School, officials were also concerned 

that several disgruntled parents had complained about the 

assignment. The officials then told the plaintiff not to 

teach the story in any of the classes, but the plaintiff in­

sisted that she would teach it anyhow. The School Board used



39

as its basis m  dismissing the plaintiff the fact that she 

had assigned the article and she was insubordinate in 

assigning or teaching the article after being told not to 

do so by her superiors. The Court held that the plaintiff 

could not be dismissed from her employment because of these 

activities. Likewise, in Mallioux, the District Court found 

that the writing of an offensive word on the blackboard

by a public school teacher and discussion of 'the word in the 

classroom was not a basis for terminating the employment of 

the teacher.

In the instant case, the bchool Board has not made 

any showing that Manchild in the Promised Land was .inappropriate 

reading for high school students. On the contrary, the book 

is listed as recommended reading for high school students 

in a reading list published by the North Carolina Department 

of Public Instruction. Unquestionably then, the assignment 

°f .Manchild. in the Promised Land is an impermissible basis 

for terminating the appellant’s employment.

D. The Racial Activities of Appellant Horton Were
a Factor in the Decision to Terminate Her Eraploy- 
Ment

of

It is clear from the record in this case 

the appellant Horton was a motivating factor

that the race 

in the Board s



40

termination of her employment. Both the background of the 

School Board's policy ano. practice of racial discrimination 

in the administration of rts school system and the particular 

events leading up to the appellant's dismissal unerringly 

point to that conclusion. Prior to the 1965—66 school year, 

the defendant operated rts schools on a completelv segregated 

basis with the white students attending white schools staffed 

by white teachers and black students attending black schools 

staffed by black teachers. Thus, it was ten years after

Rxown decision before the defendant. Board undertook anv 

steps toward the desegregation of its schools, As late 

as the end of the 1968-69 school year, the Board was still 

operating under a freedom of choice plan in all grades except 

10, 11 and 12. The only reason that freedom of choice was 

not in operation in the high school grades was that, black 

students and parents objected to the removal, of the tenth 

grade only from the formerly all-black school to the formerly 

all-white school. The obligation of the School Board to

effectively desegregate its schools had already been clearly
established by court decisions 

349 U.S. 284 (1955). Green v. 

County, 391 U.S. 430 (1968).

• Brown v. Board of Education, 

Countv School Board of New Kent 

Xt nas clearly been established

by decisions in this Circuit that where there is displacement



of black teachers in the process of school desegregation, 

the School Board has a heavy burden of demonstrating that its 

actions in terminating the employment of black teachers is 

not motivated by considerations or race. Chambers v. Hender­

sonville City Board of Education, 364 F ,2d 189 (4th Cir.

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

Wheeler v. Durham County Board of Education, 363 F.2d 738 

(4th Cir., 1966). Franklin v. County Board of Giles County,

360 F.2d 325 (4th Cir. 1966). N.C. Teachers Association 

v . The Asheboro City Board of Education, 393 F .2d 7 36 (4th 

Cir. 1968). Wall v. Stanley County Board of Education, 378 

F. 2d .2.7 5 (1967).

In this case, we are not lefr to rely upon the School 

Board’s history of discrimination alone. The particular events 

leading up to the termination of appellant's employment are 

fraught with instances of racial motivation. The appellant 

taught for two years in an all-black school and was rated 

during those two years as a superior teacher by her principal 

and colleagues. There v/ere no complaints from parents and 

teachers regarding her performance as a teacher. In fact, she 

was hailed by her students as being an outstanding instructor. 

She was moved from the all-black school to the formerly 

all-white school amidst racial protests, conflict and turmoil.

She became an outstanding spokesman of the cause of black

41



42

students in seeking to voice their grievances as they were 

transferred from the .all-black school to the formerly all- 

white school. Appellant's activities in this regard were 

known to her Principal at Orange High School (326a, 327a).

The appellant had barely settled in her teaching position 

at the white high school when white parents began to complain 

about her. The initial charges against her by white parents 

were found by the School Board to be baseless and unsubstantiated, 

arr.er investigation. Subsequently, when charges were brought 

against her later in tie year no actual investigation of the 

charges was undertaken. The Principal reason relied upon for 

the termination of her employment was her assignment of the 

book, Manchild in the Promised Land, by a black author, Claude 

Brown. The book itself v/as a form of racial protest giving 

a vivid depiction of the black experience in the ghetto. 

Immediately upon being advised that the plaintiff had assigned 

this book to her class, the Principal decided that he 

would not recommend her for continued employment. The fact 

that the appellant was active in protesting racial discrimina­

tion and the fact that she assigned a controversial book to 

her class are clearly imperials sable grounds for the termina­

tion of her employment. Johnson v. Branch, supra. Once the



alleged that her employment was terminated because 

of her race and her racial activities and made a showing

on the same, the burden was then placed upon the School Board 

to demonstrate that its action in terminating her employment

was based upon objective non-rscial rxter :.a. >ell

respectfully submits that the School Board has failed utterly 

in going forward with any proof of non-racial factors.



44

THE FACTUAL FINDINGS 
OF THE DISTRICT COURT 

i ARE CLEARLY ERRONEOUS

The district court's ultimate legal conclusion that 

the school hoard's action in not renewing Stella Horton's 

contract was not violative of her constitutional rights is 

open to serious challenge, because the court's factual finding 

are devoid of evidentiary support in the record. The four 

school board members who voted to terminate Miss Horton's 

employment all sta ted that they relied solely on the prin­

cipal's recommendations (166a, 252a, 278a. 494a, 495a). 

Therefore, in determining the basis for the termination of 

appellant's employment the district court was bound to base 

its finding on the facts relied upon by the Principal Johnson 

v. Branch, supra. It is interesting that the district court 

cites Johnson v. Branch in its opinion but fails to follow 

it in its reasoning.

In its discussion, the district court placed a great 

deal of emphasis on the fact that there was testimony to the 

fact that appellant Horton allowed a student to resell the 

books to other students in defiance of the instructions of 

her principal. The court found as a fact that she allowed

II



4

a student to sell the books after the principal instructed 

her to return the books. The court then found that the 

Board of Education was informed of this incident when they 

met in May, 1969. This finding was clearly erroneous because 

the principal stated that he made his determination not to 

recommend the appellant for rehiring before he knew about the 

incident involving the student reselling the book in Miss 

Horton's presence. bene of the board members testified that 

they considered this incident in reaching their decision to 

terminate appellant's employment. Johnson v. Branch makes 

clear.that in testing the decision of the school board the 

district court may not consider factors or logic not relied 

upon by the board itself. Under the evidence in this case 

the court was completely unwarranted in finding that appel­

lant had disobeyed an order of her principal. Rule 52a 

provides that findxngs of fact 'shall not be set aside 

unless clearly erroneous and due .regard shall be given 

to the opportunity of the trial court to judge of the credi­

bility of the witnesses." Where there is no substantial 

evidence to support the district court's finding or they 

are clearly against the weight of the evidence, this court 

is not bound by the lower courts finding. E.g. Aetna Life 

Insurance Company v. Kepler 116 F . 2nd 1,4,5 (8th Cir. 1941).



In addition, the court’s finding that---  the appellant knew

about the policy regarding fees and solicitation in the 

Orange County schools insofar as it applied to the purchase 

Oj_ supplemental materials is clearly erroneous because the 

^PP®Hsnt stated that sns did not know that the policy app] i ed 

to the materials that she required her students to nurche.se. 

Ihe principal even stated that he knew of no written policv 

covering appellant's activities. Moreover, the superintendent 

stated that the policy did not directly cover the purchasing 

of supplemental materials. None of the board members stated 

■'rhat the violation of this policy figured in their decision.



Ill

APPELLANTS ARE ENTITLED TO 
INJUNCTIVE RELIEF AGAINST THE 
RACIALLY DISCRIMINATORY PRACTICES 
AND POLICIES OF THE DEFENDANT 
IN THE HIRING, ASSIGNING AND 
TERMINATING OF BLACK TEACHERS 
AND SCHOOL PERSONNEL

The defendant’s affirmative obligation in eliminating 

Pasc racial practices regarding teachers and school personnel 

has been clearly established. Nesbit v. Statesville City 

Board of Education,, 345 F.2d 333 (1968) . It is also clear 

that a school board may not decimate' the ranks of its black 

teachers in the school desegregation process. Wall v.

S-anley County, supra;- N.C, Teachers Association v. Asheboro, 

supra . A clear pattern of decreasing the number of black 

teachers and simultaneously increasing the number of white 

teachers has been established by the evidence in this case. 

Since the school desegregation process began in the 1965-66 

school year, the number of black teachers in defendant's 

school system has decreased by approximately 22% while the 

number of white teachers has correspondingly increased by 

approximately 11%. It is submitted that under these cir­

cumstances, appellants are entitled to injunctive relief in 

order to eliminate this pattern of racism.



43

CONCLUSION

-i rpcnecf fully or ay this CourtWHEREFORE, appellants r^pec^uixy -

for relief as follows;
■ ■ xz rriivrf below be reversedThat the decision of une Court -

and this cause remanded thereto with instructions; that

the court order the reinstatement of the appellant to
. . -,0 a teacher in the Orange County Publicher lorirter position as a tedui -

.... , a „av avid expenses, including reasonableSchools with back pay ana exp-i.«
• t-; _ i j.pri-i ati ve; th at tne Orangeattorneys' fees or, in the alternative;

n , rj.rd accord to appellant Horton a hearing County School Boar a acu ^
A „:jl ,ofpcuai-ds regarding the termination with adequate procedural. bafegua.as x -y

of her employment and that the District Court furthei en]om 

the Ora ige County School Board from discriminating against 

its black teachers and school personnel in matters of hiring, 

firing and termination; that the defendant School Board 

be further enjoined from terminating contracts or profess..

i Without prior notice of the charges against school personnel without- p m i
t0 confront and cross-examine witnesses them and an opportunity to

against them.
Respectfully submitted,

..

I  f  . -tkf ..

CmMES E. FERGUSCN, II 
J. LeVOENE CHAMBERS



Chambers, Stein, Ferguson & 
banning
237 West Trade Street 
Charlotte, North Carolina

CONRAD 0. PEARSON
203 1 f2 East Chapel Hill Street 
Durham, North Carolina

JACK GREENBERG 
JAKES NABRIT, xll 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



CERTIFICATE OF SERVICE

The undersigned hereby certifies that two copies 

of the foregoing Brief for Appellants and one copy of 

the Appendix thereto were served upon counsel for trie 

appellee by depositing same in the United States man, 

postage prepaid, addressed to;

LUCIUS M. CHESHIRE, ESQ.
Graham & Cheshire
118 Nortn. Chur ton Street
Hillsborough, North Carolin

This 9th day of November, 1971.