Hill v. Franklin County Board of Education Brief for Intervening Plaintiff-Appellant

    No. 17,648

I n  t h e

Initial ( ta rt nf Appeals
F oe t h e  S ix th  Circu it

A) Jtf

S am uel  H il l , et al.,
Plaintiffs,

and
M bs. T hebesa  K inslo w ,

Intervening Plaintiff-Appellant,

y.

F r a n k lin  C ounty  B oabd of E ducation, et al.,
Defendants-Appellees.

appeal ekom t h e  un ited  states distbict couet eoe th e

EASTEEN DISTBICT OF TENNESSEE, WINCHESTEE DIVISION

BRIEF FOR INTERVENING PLAINTIFF-APPELLANT

J ack Greenberg

J ames M. N abeit, I I I
M ichael  J .  H enry

10 Columbus Circle 
New York, N. Y. 10019

A von N. W illiam s , J r.
Z. A lexander L ooby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Intervening 
Plaintiff-Appellant



Statem ent o f  Q uestion Involved

Whether plaintiff-appellant, whose application for a pub­
lic school teaching position was denied, made out a prima 
facie case that the denial was racially discriminatory, 
which the school board did not rebut!

The district court answered this question “No” and 
plaintiff-appellant contends the answer should have been 
“Yes.”



I N D E X

PAGE

Statement of Question Involved ................ ........... Preface

Statement of F ac ts................... .................... ..... ...........  1

Argument .............................................................. ......... 9

Relief............................................... ..............................  18

T able op Ca ses :

Alston v. School Board of City of Norfolk, 112 F.2d
992 (4th Cir., 1940), cert. den. 311 U.S. 693 _____ 10

Avery v. Georgia, 345 U.S. 559 (1953) ......... ......... 16

Bradley v. School Board of the City of Richmond, 382
U.S. 103 (1965) ........................................ ................10,12

Brown v. Board of Education, 347 U.S. 483 (1954) ....9,12

Chambers v. Hendersonville City Board of Education,
364 F.2d 189 (4th Cir., 1966) ...................... .....9,15,16

Colorado Anti-Discrimination Comm’n v. Continental 
Air Lines, Inc., 372 U.S. 714 (1963) .................9,10,12

Eubanks v. Louisiana, 356 U.S. 584 (1958) ............... . 16

Franklin v. County School Board of Giles County,
360 F.2d 325 (4th Cir., 1966) ........................... . . . . . 11, 15

Garner v. Board of Public Works, 341 U.S. 716.......... 11

Johnson v. Branch, 364 F.2d 177 (4th Cir., 1966) ...... 10,16



11

PAGE

Konigsberg v. State Bar of California, 353 U.S. 252 .... 11

Norris v. Alabama, 294 U.S. 587 (1935) ..................... 16

Reece v. Georgia, 350 U.S. 85 (1955) ........................  16
Rogers v. Paul, 382 U.S. 198 (1965) ........................ 10,12

Schware v. Board of Bar Examiners, 353 U.S. 232 ....  11
Smith v. Board of Education of Morrilton School 

District No. 32, 365 F.2d 771 (8th Cir., 1966) ___ 9,15

Torcaso v. Watkins, 367 U.S. 488 ...............................  11

United Public Workers v. Mitchell, 330 U.S. 75 ..........  9

Wieman v. Updegraff, 344 U.S. 183 ................... ......... 9

Zimmerman v. Board of Education, 38 N.J. 65, 183 
A.2d 25 (1962) ...... ............................. ................... . 11



I n  the

Imtpfc States Court of A t t a la
F ob th e  S ix th  Circuit

S amuel H il l , et al.,
Plaintiffs,

and
M r s . T heresa  K inslow ,

Inter v enin g Plaintiff-A ppellant,

v.

F ra n k lin  County  B oard of E ducation, et al.,
Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF TENNESSEE, WINCHESTER DIVISION

BRIEF FOR INTERVENING PLAINTIFF-APPELLANT

Statement of Facts*

This is an action in which Mrs. Theresa Kinslow inter­
vened on behalf of herself and all other persons similarly 
situated, against the County Board of Education of

* This case is one of three appeals—Nos. 17,647; 17,648; and 17,649— 
arising from the same Motion for Further Relief and District Court 
opinion. The respective parties have stipulated to file a, Joint Appendix 
under this Court’s Rule 16(5), which will not be printed until after 
briefs are filed under that rule. Thus the citations in this Statement of 
Facts are to the typewritten transcript and other papers in the original 
record on appeal, rather than to the subsequently printed record.



2

Franklin County, Tennessee, seeking relief against the 
board’s policy and practice of denying, on the basis of 
race, applications of teachers for employment.

Mrs. Theresa Kinslow had a B. S. degree, a Tennessee 
Teacher’s Certificate in grades 1-9, and four years’ regular 
and substitute teaching experience at the time that she 
filed her application with the Franklin County School 
System (Tr. 56-57). She had been a lifelong resident of 
Franklin County, taking all of her public schooling there, 
with the exception of the three years after graduating 
from college that she spent in Kentucky (Tr. 55-57).

After returning to her home community in Tennessee 
from Kentucky, she filed an application for a teaching 
position in grades 1-9 with the Franklin County School 
System on January 19, 1965 (Tr. 61). The application 
form in use by the Franklin County School System at 
that time had a space in which to indicate the race of 
the applicant, and Mrs. Kinslow indicated therein that 
she was a Negro (Application).

It was the practice in Franklin County that elementary 
teachers were nominated for election by the particular 
member of the Board of Education who resided in the 
district in which the school was located for which the 
teacher was being considered, and that the other members 
of the Board would usually accept this recommendation 
(Tr. 67, 102-105, 218-219, 246-247). Mr. L. J. Morris, the 
member of the Board from the first district, in which 
the formerly all-white Mary Sharp elementary school was 
located, had determined in the summer of 1965 that there 
was a vacancy in this school, and discovered through in­
quiries that Mrs. Kinslow was available for the position 
and had filed an application for employment with the 
school system (Tr. 62-68, 242-248). Mr. Morris contacted



3

Mrs. Kinslow and suggested that she contact the super­
intendent of the school system, Mr. Louis Scott (Tr. 63). 
When she did so, Mr. Scott said that there was no vacancy 
at the Mary Sharp School, since it had been filled earlier 
in the summer (Tr. 63). Mrs. Kinslow then contacted 
Mr. Morris again, who stated that there was a vacancy 
there, since the person who had previously been considered 
for it had refused to take it (Tr. 64). Mr. Morris then 
suggested that Mrs. Kinslow send a transcript to the 
superintendent, Mr. Scott, to supplement her previous 
application, which she did (Tr. 65). Mr. Morris indicated 
that he would recommend Mrs. Kinslow for the vacancy 
at Mary Sharp School (Tr. 68).

Subsequently Mr. Morris discovered through conversa­
tions with the superintendent and with other Board mem­
bers that they were not going to go along with his recom­
mendation of Mrs. Kinslow for the position at Mary 
Sharp, although he did not know why, particularly since 
they usually did go along with his recommendations (Tr. 
246-247). He then inquired as to whether Mrs. Kinslow 
would accept a position at the Townsend School (all 
Negro), and indicated that he would attempt to obtain a 
position for her there (Tr. 247).

At the Board of Education meeting on August 12, 1965, 
Mr. Morris made a formal motion that Mrs. Kinslow be 
employed at the Townsend School (Tr. 107). The Franklin 
County School System at that time had adopted no formal 
standards with which to determine which teachers should 
be retained and/or employed (Tr. 91). When considering 
Mrs. Kinslow’s application for a teaching position, the 
Board never made a formal comparison of Mrs. Kinslow’s 
qualifications with those of the other teacher applicants 
(Tr. 152). The nature of the discussion which took place 
at the Board meeting on the proposal to employ Mrs.



4

Kinslow concerned primarily the fact that the superin­
tendent, Mr. Scott, had not recommended her (Tr. 107- 
113). Mr. Scott stated that the reason he opposed Mrs. 
Kinslow’s election was mainly because the principal of 
the Townsend School had told him that he did not want 
her there (Tr. 174). He nevertheless admitted that he 
knew that Mrs. Kinslow had never done any teaching at 
the Townsend School, and therefore there was no basis 
for the asserted negative recommendation by the principal 
of the Townsend School (Tr. 176-178). He also indicated 
that he did not take the trouble at that time to write to 
the school system which had previously employed her for 
a written recommendation (Tr. 176, 196-197). As a result 
of this conflict in recommendations, the vote of the Board 
of Education on the proposal to elect Mrs. Kinslow to 
fill the vacancy at the Townsend School was 3 in favor, 
1 abstention, and 4 opposed, and therefore the motion 
failed to carry (Tr. 107).

At the same time the Board of Education refused to 
employ Mrs. Kinslow, the Board employed sixteen (16) 
new white applicants for elementary positions, almost all 
of whom had applied for positions with the system after 
Mrs. Kinslow did, and many of whom had less experience 
than she did, including four who had absolutely no teach­
ing experience at all (Tr. 150-151, 188-190; Pre-trial Order 
Information, Section III, Sub-section (d) (3)—-Non-Tenure 
Teachers 1965-66; Exhibit No. 14—Applications of Teach­
ers Employed 1965-66). The applicants employed by the 
system for elementary positions during the summer of 
1965 for the 1965-66 year are set out in the following 
table:



5

N ew  E lementary  (G rades 1-8) T eachers E mployed for 
1965-66 S chool Y ear

Name Degree
Teaching

Experience
Date of

Application Race

1. Broyles, 
Minnie Mrs.

B. S.&7 
sem. hours

6 years 1965 w

2. Cannon,
Frances Mrs.

B. S. 4 years 1965 w

3. Cunningham, 
Dixie Mrs.

B.S. none 9/11/65 w

4. Fuller, 
Angie Mrs.

B.S. none 7/28/65 w

5. Garner, 
Marie Mrs.

90 quarter 
hours

2 years 7/30/65 w

6. Hunter,
Frances Mrs.

B. S. & 3
quarter
hours

none 4/27/65 w

7. Martin, Homer 
Wayne Mr.

B. S. & L. L. B. 4 years 1965 w

8. Moody,
Marion Mrs.

A. B. none 1965 w

9. More,
Novella Mrs.

B.C. 17 years 1965 w

10. Rose,
Nancy Mrs.,

B.S. 2 years 8/14/65 w

11. Running, 
Julia Mrs.

MME 10 years 6/15/65 w

12. Skirven, MME 2 years 2/10/65 w
Martha Mrs.



6

N ew  E lementary  (G rades 1-8) T eachers E mployed for 
1965-66 S chool Y ear 

(Continued)

Name Degree
Teaching

Experience
Date of 

Application Race

13. Soderbom, 
Peggy Mrs.

B. S.&18 
sem. hours

7 years 6/23/65 w

14. Soderbom, 
Richard Mr.

B. A. 2 years 
IJ. S. Army

6/23/65 w

15. Somerville, 
Mary Mrs.

B.S. 2% years 1965 w

16. Wood,
Kathleen Miss

B. S. 1 year 5/1965 w

There were a number of other white applicants for elementary posi­
tions for the 1965-66 school year who were not employed, but most of 
these had less experience and qualifications than Mrs. Kinslow (Ex­
hibit 13).

Eleven days after the Board of Education voted not 
to employ Mrs. Kinslow, the Board met on August 23,
1965 and voted to discharge five Negro teachers from all- 
Negro schools because of enrollment losses which occurred 
in consequence of the implementation of a plan of desegre­
gation (District Court opinion; Tr. 21-22, 224-226; Pre­
trial Order Information, Section III, Subsection (d), p. 10 
—Minutes of the Board of Education; Motion for Further 
Relief, pp. 4-5). The school system did employ one new 
Negro teacher during the summer of 1965 for the 1965-66 
school year, but he was employed for the all-Negro Town­
send High School (Tr. 165-166). It was the unwavering 
policy of the Franklin County School System to assign 
Negro teachers only to schools with exclusively Negro 
student bodies through the school year 1965-66, even though



7

required to integrate the faculty under the Court ordered 
plan of desegregation of April 1965 (Tr. 166).

In regard to the question of whether he made any in­
vestigation of Mrs. Kinslow’s qualifications before deciding 
against recommending her for a teaching position in the 
summer of 1965, Superintendent Louis Scott produced no 
affirmative evidence that he had made inquiries to officials 
of the Christian County Kentucky School System in which 
Mrs. Kinslow had been employed immediately preceding 
her application to the Franklin County System (Tr. 174- 
178, 196-197). T. K. Stewart, the superintendent of edu­
cation of the Christian County School System stated in 
August, 1966 that his recollection of the first telephone 
conversation which he had had with Mr. Louis Scott was 
only several months previously, which would place the 
time at approximately the time of the filing of this lawsuit 
in February, 1966, rather than during the summer of 
1965 at the time of the consideration of Mrs. Kinslow’s 
application (Stewart Deposition, p. 2). Mr. Stewart did 
state that he gave Mrs. Kinslow an unsatisfactory recom­
mendation after suit was filed, but this was based not on 
his own personal knowledge of her qualifications but upon 
impressions gained from the principal and the supervisor 
of the school in wffiich Mrs. Kinslow was employed, Mr. 
Rozzelle Leavell and Mrs. Idella Ervin (Stewart Deposi­
tion pp. 4-5, 32-33). However, Mr. Leavell specifically de­
nied that he had ever given an unsatisfactory recom­
mendation of Mrs. Kinslow (Leavell Deposition, pp. 5, 15), 
and stated specifically that she was an “excellent teacher” 
(Leavell Deposition, p. 2).

The only written record which Mr. Stewart had indi­
cating that Mrs. Kinslow had been an unsatisfactory 
teacher was a letter which he had sent to the Kentucky 
Human Rights Commission, in response to an inquiry as



8

to why the system had discharged so many Negro teachers, 
all at the same time (Stewart Deposition pp. 4, 12-13, 
25, 27). The Christian County School System had been 
completely racially segregated up until the 1963-64 school 
year, during which a freedom of choice desegregation plan 
was begun (Stewart Deposition pp. 9-10). In consequence 
of that plan of desegregation, the enrollment dropped at 
the all-Negro Gainsville School at which Mrs. Kinslow 
had been teaching, thereby causing the school system to 
make a reduction in the number of teaching positions at 
that school, at the same time that Mrs. Kinslow was 
allegedly discharged for unsatisfactory teaching (Stewart 
Deposition, pp. 10-11; Leavell Deposition, pp. 3-4). The 
Christian County School System at this time was still 
following an unwavering policy of complete faculty segre­
gation, and did not begin faculty desegregation until the 
1965-66 school year and did not assign any Negro teachers 
to schools where they would be teaching white pupils 
until that time (Stewart Deposition p. 11).

The District Court held a hearing in this case on August 
25, 1966, and filed an opinion on September 30, 1966 deny­
ing relief to Mrs. Kinslow, although granting relief to 
another Negro teacher (Mrs. Virginia Scott) who was 
discharged at the same time that Mrs. Kinslow was not 
employed (District Court opinion).



9

ARGUMENT
Whether Plaintiff-Appellant, Whose Application lor 

a Public School Teaching Position Was Denied, Made 
Out a Prima Facie Case That the Denial Was Racially 
Discriminatory, Which the School Board Did Not Rebut ?

The District Court Answered This Question “No” and 
Plaintiff-Appellant Contends the Answer Should Have 
Been “Yes.”

The mandate of Brown v. Board of Education, 347 U.8. 
483 (1954), forbids the consideration of race in faculty- 
selection by a public school system just as it forbids it in 
pupil placement. Chambers v. Hendersonville City (N. 
Car.) Board of Education, 364 F.2d 189 (4th Cir., 1966). 
This follows the Supreme Court’s holding in Colorado 
Anti-Discrimination Commission v. Continental Air Lines, 
Inc., 372 U.S. 714, 721 (1963), that “any state or federal 
law requiring applicants for any job to be turned away 
because of their color would be invalid under the Due 
Process Clause of the Fifth Amendment and the Due 
Process and Equal Protection Clauses of the Fourteenth! 
Amendment.” The Court of Appeals for the Eighth Cir­
cuit specifically applied this holding to public school teach­
ers in Smith tv. Board of Education of Morrilton School 
District No. 32 (Ark.), 365 F.2d 771 (8th Cir., 1966), 
when it held:

It is our firm conclusion that the reach of the Brown 
decisions, although they specifically concerned only 
pupil discrimination, clearly extends to the proscrip­
tion of the employment and assignment of public school 
teachers on a racial basis. Cf. United Public Workers 
v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 91 L.Ed. 754 
(1947); Wieman v. Updegraff, 344 U.S. 183, 191-192,



10

73 S.Ct. 215, 97 L.Ed. 216 (1952). See Colorado Anti- 
Discrimination Comm’n v. Continental Air Lines, Inc.. 
372 U.S. 714, 721, 83 S.Ct. 1022, 10 L.Ed.2d 84 (1963). 
This is particularly evident from the Supreme Court’s 
positive indications that nondiscriminatory allocation 
of faculty is indispensable to the validity of a desegre­
gation plan. Bradley v. School Board, supra; Rogers 
v. Paul, supra. . . .

The Court of Appeals for the Fourth Circuit recently 
had occasion to apply these basic Constitutional principles 
in the case of a Negro teacher who was not rehired, al­
legedly because of civil rights activity, Johnson v. Branch, 
364 F.2d 177 (1966). In finding for the complaining Negro 
teacher, the Court stated in its opinion that:

“The law of North Carolina is clear on the procedure 
for hiring teachers. All contracts are for one year only, 
renewable at the discretion of the school authorities. . . . 
There is no vested right to public employment. No one 
questions the fact that the plaintiff had neither a contract 
nor a constitutional right to have her contract renewed, 
but these questions are not involved in this case. It is the 
plaintiff’s contention that her contract was not renewed 
for reasons which were either capricious and arbitrary or 
in order to retaliate against her for exercising her con­
stitutional right to protest racial discrimination.

# # #

“In Alston v. School Board of City of Norfolk, 112 F.2d 
992 (4 Cir., 1940), cert, denied, 311 TT.S. 693, 61 S.Ct. 75, 
85 L.Ed. 448 (1940), this court struck down a practice of 
paying lesser salaries to Negro school teachers. In that 
case Chief Judge Parker said:



11

‘It is no answer to this to say that hiring of any 
teacher is a matter resting in the discretion of the 
school authorities. Plaintiffs, as teachers qualified and 
subject to employment by the state, are entitled to 
apply for the positions and to have the discretion of 
the authorities exercised lawfully and without uncon­
stitutional discrimination as to the rate of pay to be 
awarded them, if their applications are accepted.’

# # #

“Again in Franklin v. County School Board of d ies  
County, 360 F.2d 325 (4 Cir. 1966), this court ordered that 
Negro teachers whose contracts were not renewed because 
of their race be reinstated. There the Board contended 
that they had, in the act of failure to renew the contracts, 
compared the qualifications of the teachers with others 
in the system and found them inferior, but the record 
disclosed no objective evidence of such inferiority in the 
face of equal certification and experience. However wide 
the discretions of School Boards, it cannot be exercised 
so as to arbitrarily deprive persons of their constitutional 
rights. Zimmerman v. Board of Education, 38 N.J. 65, 
183 A.2d 25, 27-28 (1962); Garner v. Board of Public 
Works, 341 U.S. 716, 725, 71 S.Ct. 909, 95 L.Ed. 1317 
(1951). The principle has often been applied in analogous 
situations. Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 
1680, 6 L.Ed.2d 982 (1961); Schware v. Board of Bar 
Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 
(1957). In Konigsberg v. State Bar of California, 353 
U.S. 252, 77 S.Ct. 722, 1 L.Ed.2,d 810 (1957), the Court said:

‘We recognize the importance of leaving the States 
free to select their own bars, but it is equally im­
portant that the State not exercise this power in an 
arbitrary or discriminatory manner nor in such [a]



12

way as to impinge on the freedom of political ex­
pression or association.’ (At 273, 77 S.Ct. at 733.)”

Thus it is clear that no matter how extensive the dis­
cretion of school officials in determining whether or not 
to employ a particular teacher, such employment decision 
may not be made on an unconstitutional ground. It is 
also clear that race is such an unconstitutional ground. 
Brown v. Board of Education, supra; Bradley v. School 
Board of Richmond, 382 U.S. 103 (1965); Rogers v. Paul, 
382 U.S. 198 (1965).

In the instant case, when a Negro teacher applicant, 
Mrs. Kinslow, filed her application form, she was required 
to indicate thereon her race. In Colorado Anti-Discrim­
ination Commission v. Continental Air Lines, Inc., 372 
U.S. 714 (1963), the Supreme Court upheld a finding of 
discrimination based on a requirement by an employer 
that the racial identity of the applicant be revealed on an 
application form. It is undisputed that the race of all 
applicants for positions in the 1965-66 school year was 
required by the Franklin County School System to be 
stated on the application form. It follows logically that 
if the school system asked for this fact on the applica­
tion form, they used it in their decisions as to whether or 
not to employ the applicants—which is clearly unconsti­
tutional.

Even apart from this requirement to indicate race on the 
application form, the evidence clearly established a prima 
facie case of a refusal to employ based on race which the 
school officials did not rebut. Mrs. Kinslow, a Negro, was 
a certified elementary teacher of four years experience 
who filed her application with the Franklin County School 
System in January, 1965. She was recommended in the 
summer of 1965 for a position at the formerly all-white



13

Mary Sharp School by the school board member in whose 
district the school was located. Although the board’s nor­
mal practice was to follow the recommendation of the 
board member in whose district a school was located with 
regard to hiring elementary teachers, in this case the 
superintendent and the other board members deviated from 
their normal practice and refused to follow that recom­
mendation. Then Mrs. Kinslow was proposed for a posi­
tion at the all-Negro Townsend School later in the sum­
mer of 1965, but in order to be consistent with their 
previous refusal to employ her for a formerly all-white 
school, the superintendent and several board members 
also acted to keep her out of this position, even though 
other board members desired to employ her here.

The Franklin County School superintendent later claimed 
that he had checked Mrs. Kinslow’s qualifications with 
the Kentucky school system where she was previously 
employed and had received a negative recommendation 
from the superintendent of that system. Nevertheless, 
there was no written inquiry made by the superintendent 
in the summer of 1965 at the time of the decision, and the 
Kentucky superintendent indicated that his earliest recol­
lection of even a telephone inquiry from the Franklin 
County superintendent was early in 1966. Furthermore, 
the Kentucky superintendent later stated that he gave 
Mrs. Kinslow an unsatisfactory recommendation based not 
on his own direct impressions of her work (of which he 
had none) but on those of the principal and supervisor 
of the school where she taught in Kentucky. But, the 
principal of that school testified and contradicted this di­
rectly, saying that Mrs. Kinslow was an “excellent teacher.” 
The only written evidence the Kentucky superintendent 
could point to as justifying his unfavorable recommenda­
tion was a letter he had been forced to send to the Ken-



14

tucky Human Rights Commission in response to an in­
quiry as to why so many Negro teachers, including Mrs, 
Kinslow, had been discharged at the same time, coinciding 
with the implementation of a plan of student desegrega­
tion in which there were substantial enrollment losses at 
Negro schools.

At the same time that the Franklin County school 
board was refusing to employ Mrs. Kinslow during the 
summer of 1965, the board hired sixteen (16) new white 
elementary teachers, twelve (12) of whom had less or no 
greater experience and qualifications than Mrs. Kinslow 
and almost all of whom filed their applications after she 
did. The 1965-66 school year was the first year during 
which the court-ordered freedom-of-choice student desegre­
gation plan of April 17, 1965 applied and during which the 
school system could anticipate substantial student desegre­
gation. It had become clear at this point that any new Negro 
teacher employed by the system might have to be assigned 
to teach white students, since the number of students in 
the all-Negro schools could be expected to decrease sub­
stantially. Furthermore, eleven days after the board voted 
not to employ Mrs. Kinslow, the school system discharged 
five Negro teachers from all-Negro schools because of 
enrollment losses which did materialize at the beginning 
of the 1965-66 school year in consequence of the implemen­
tation of the new court-ordered freedom-of-choice desegre­
gation plan. It had been the unwavering policy of the 
school system up to this time to assign Negro teachers 
to teach only Negro students, and the only alternative 
to discharging these now “excess” Negro teachers would 
have been re-assigning them to formerly all-white schools 
where they would be teaching some white students.

We submit that on this state of the facts, the district 
court’s conclusion that there was “substantial evidence”



15

(which it does not specify) to support the school board’s 
decision as being within the proper bounds of admin­
istrative discretion and not arbitrary or founded on con­
siderations of race, is clearly erroneous.

It is also completely inconsistent with same court’s de­
termination in the same opinion that the discharges of 
five Negro teachers at the same time as the refusal to 
employ Mrs. Kinslow were wrongfully based on race, since 
“the defendant Board had no definite objective standards 
for the employment and retention of teachers which were 
applied to all teachers alike in a manner compatible with 
the requirements of the due process and equal [protection] 
clauses of the federal Constitution.” There is no indication 
that the board made any formal comparison according to 
any Constitutionally permissible objective criteria of Mrs. 
Kinslow’s qualifications with those of the other applicants 
before declining to employ her.

The U. S. Court of Appeals for the Fourth Circuit has 
specifically held in teacher discharge cases that the failure 
to make comparative evaluations according to objective 
standards among all person eligible for the available posi­
tions is a Constitutional defect. Franklin v. County School 
Board of Giles Co. (Va.), supra; Chambers v. Henderson­
ville City (N. Car.) Board of Education, supra. The Eighth 
Circuit has held similarly in the context of the imple­
mentation of a plan of desegregation. Smith v. Board of 
Education of Morrilton School District No. 32 (Ark.), 
supra. There is no reason why this basic prohibition of 
and protection against arbitrary conduct on the part of a 
school board should not apply in the case of applications 
as well as dismissals.

Furthermore, in view of the district court’s conclusion 
in the same opinion that the defendant school board had



16

been guilty of “a long-continued pattern of evasion and 
obstruction of the desegregation of the public schools of 
Franklin County, Tennessee,” it was inconsistent of the 
district court to cast the burden of proof of showing racial 
discrimination upon Mrs. Kinslow in the first place. As 
the Fourth Circuit said in Chambers v. Hendersonville 
City (N. Car.) Board of Education, supra, in reference 
to a comparative evaluation which allegedly had been made:

Finally, the test itself was too subjective to with­
stand scrutiny in the face of the long history of racial 
discrimination in the community and the failure of the 
public school system to desegregate in compliance with 
the mandate of Brown until forced to do so by litiga­
tion. . . . Innumerable eases have clearly established 
the principle that under circumstances such as this 
where a history of racial discrimination exists, the 
burden of proof has been thrown upon the party 
having the power to produce the facts. In the field 
of jury discrimination see: Eubanks v. Louisiana, 
356 U.S. 584 (1958); Reece v. Georgia, 350 U.S. 85 
(1955) ; Avery v. Georgia, 345 U.S. 559 (1953); Norris 
v. Alabama, 294 U.S. 587 (1935). 364 F.2d at 192-193.

Additionally, the Fourth Circuit specifically stated in 
Johnson v. Branch, supra, that under such circumstances 
even where a board maintains that they had compared the 
qualifications of discharged teachers with others in the 
system and found those of the discharged teachers in­
ferior, the facts of equal certification and experience and 
lack of objective evidence of inferiority in the record 
require a finding that the board has acted arbitrarily and 
unconstitutionally on the basis of race. The record in the 
instant case shows that Mrs. Kinslow’s qualifications were 
equal or superior to those of three-fourths of the white



17

applicants who were employed, and there is no reason why 
this principle of burden of proof applied in teacher dis­
charge cases in the context of implementation of desegrega­
tion plans should not be applied to teacher applicants in 
similar circumstances.

Thus in the summer of 1965 the Franklin County school 
system was still requiring of teacher applicants that they 
indicate their race on the application form; was facing 
substantial student integration for the first time which 
might require the assignment of Negro teachers to teach 
white students; and in fact discharged five Negro teachers 
when substantial numbers of Negro students transferred 
from previously all-Negro schools rather than re-assigning 
those teachers to integrated schools where there would 
be white students. At the same time, the school system 
refused to employ Mrs. Kinslow while hiring sixteen (16) 
new white elementary teachers, three-fourths of whom had 
less or only equivalent experience and qualifications; had 
no definite objective standards for determining which teach­
ers to employ and made no formal comparison of Mrs. 
Kinslow’s qualifications to those of the other applicants; 
and did not even make a formal written inquiry of her past 
employers for recommendations. We submit that circum­
stances such as these in the context of a long history of 
past racial discrimination by this school system permit no 
other conclusion but that Mrs. Kinslow was not employed 
because of her race.



18

Relief

For the foregoing reasons, plaintiff-appellant respect­
fully submits that the decision of the lower court should 
be reversed, and that an order should be entered requiring 
the school board to employ her, and to compensate her for 
the income which she would have earned if the school 
board had not wrongfully refused to employ her.

Respectfully submitted,

J ack Gbeenbebg

J ames M. N abbit, III
M ichael  J .  H enry

10 Columbus Circle 
New York, N. Y. 10019

A von N. W illiam s , J b.
Z. A lexander L ooby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Intervening 
Plaintiff-Appellant



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