Walston v. County School Board of Nansemond County Virginia Brief for Appellants

    IN THE

•lllmteh jita tes dour! nf appeals
FOR THE FOURTH CIRCUIT

73-1492

SYVALIUS WALSTON, JR., et al,
Appellants,

V.

THE COUNTY SCHOOL BOARD OF NANSEMOND 
COUNTY, VIRGINIA, et al,

Appellees.

Appeal from the United States District Court for 
the Eastern District of Virginia at Norfolk

BRIEF FOR APPELLANTS

S. W. TUCKER 
HENRY L. MARSH, III 
JAMES W. BENTON 
HILL, TUCKER & MARSH

214 East Clay Street 
Richmond, Virginia 23219

JAMES A. OVERTON
623 Effingham Street 
Portsmouth, Virginia 23704

JACK GREENBERG 
NORMAN CHACHKIN

10 Columbus Circle,
Suite 2030

New York, New York 10019



TABLE OF CONTENTS

ISSUES PRESENTED FOR REVIEW

Page
1

STATEMENT OF THE CASE 
STATEMENT OF THE FACTS

3
6

A. Beginning The Transition From A
Segregated School System 6

B. The National Teachers Examination -8
C. Nansemond's Decision To Use The NTE 10
D, Application Of The NTE Policy To

The Plaintiffs .. 14
1. Plaintiff Teachers With Prior 

Experience In Nansemond County 14

2 . Plaintiff Teachers Who Should Have 
Been Exempted From The NTE 16

3. Transfer And Resulting NTE Requirements 
May Be Imposed By The Administration 17

4. A Teacher Dismissed Despite Her 
Required NTE Score 18

5. General Results Of NTE Requirement 19

Appellants Dismissed For Reasons Other 
Than The NTE 20

1. Syvalius Walston 20

2. Eula Baker 23

x



ARGUMENT
I. The Board Did Not Overcome The 

Strong Inference Of Racial 
Discrimination Created By The 
Use Of A Device Which Eliminated 
Black Teachers At The Commencement 
Of The Desegregation Process

II. The Board Has Demonstrated Neither A 
Rational Relationship Between The 
Tests And The Purpose For Which They 
Were Used Nor A Compelling Interest 
To Justify The Use Of The Tests

III. The School District Has Applied The 
Stated NTE Policy ^Arbitrarily

IV. Syvalius Walston, Jr., And Eula Y. 
Baker Were Fired For Impermissible 
Racial Reasons

Page

26

33

41

43
CONCLUSION > 47



TABLE OF CITATIONS

Cases
Page

Baker v. Columbus Municipal Separate School 
District, 329 F. Supp. 706 (N.D. E. D. Miss.
1971) , affirmed 462 F .2d 1112 (5th Cir.
1972) ------------------------------------  27,32,38,39,40

Bonner v. Texas City Independent School
District, 305 F.Supp. 600 (S.D. Tex 1969) 27

Brown v. Board of Education, 347 U.S. 483
(1954) -----------------------------------  26

Castro v. Beecher, 459 F .2d 725
(5th Cir. 1972) -------------------------  38

Chambers v. Hendersonville City Board of
Education, 364 F .2d 189 (4th Cir.-1966) —  27,28,32

Griggs v. Duke Power Company, 401 U.S. 424
(1971) -------------------------------  30,31,35,37,38,39

Hunter v. Erickson, 393 U.S. 385 (1969) ---  38
Jackson v. Wheatley School District No. 28,

430 F . 2d 1359 (8th Cir. 1970) ------------ 28,46
Johnson v. Branch, 364 F .2d 177

(4th Cir. 1966) -------------------------- - 42,45,46
Jones v. Lee Way Motor Freight, Inc.,

431 F . 2d 245 (10th Cir. 1970) ------------ 30
Korematsu v. United States, 323 U.S. 214

(1944) -----------------------------------  38
Loving v. Virginia, 388 U.S. 1 (1967) -----  38
McDonnell Douglas Corp. v. Green,

41 L.W. 4651 (1973) ----------------------  30,31,38,46
McLaughlin v. Florida, 379 U.S. 184 (1964) - 38
Moody v. Albemarle Paper Co., 474 F .2d 134

(4th Cir. 1973) ------------------7 7—  39,40
Moore v. Board of Chidester School District,

448 F . 2d 709 (8th Cir. 1971) ------------- 45,46
North Carolina Teachers Ass'n . v. Asheboro 

City Board of Education, 393 F .2d 736
(4th Cir. 1968) --------- :---------------- 28

Norwalk CORE v. Norwalk Redevelopment
Authority, 395 F.2d 920 (2d Cir. 1971) --  38

Robinson v. Lorillard Corp., 444 F .2d 791
(4th Cir. 1971) --------------------------  ' 39,40

United States v. Georgia Power Co.,
474 F . 2d 906 (5th Cir. 1973)-- ---------- 39

United States v. Jacksonville Terminal Co.,
451 F . 2d 418 (5th Cir. 1971) ------------- 37

- iii -



TABLE OF CITATIONS

Page
United States v. Jefferson County Board of

Education, 372 F . 2d 836 (5th Cir. 1966)-------- 28
Williams v. Kimbrough, 295 F.Supp. 578

(W.D. La. 1969) --------------------- '---------- 27,32
Yick Wo v. Hopkins, 118 U.S. 356 (1886) --------- 42

IV



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

73-1492

SYVALIUS WALSTON, JR., et al,
Appellants,

v.
THE COUNTY SCHOOL BOARD OF NANSEMOND 

COUNTY, VIRGINIA, et al,..
Appellees.

Appeal from the United States District Court^ for 
the Eastern District of Virginia at Norfolk

BRIEF FOR APPELLANTS

ISSUES PRESENTED FOR REVIEW 

I
Whether a school board, when forced to desegregate 

its pupils and faculties, can utilize for the first time 
the National Teacher Examination for excluding and 
eliminating teachers from its faculties, where it is



shown that such examination has an adverse racial impact on 
black teachers, that the value of such examination has not 
been demonstrated, and that other effective methods of 
excluding or eliminating teachers were not utilized?

II
Whether, in view of the disparate racial impact, the, 

school board should have been required to demonstrate a 
rational relationship between the tests and the purpose for 
which they were used?

III
Whether, in view of the alternative methods available, 

the board has demonstrated a compelling state interest in 
utilizing the National Teacher Examination?

IV
Whether the district court erred in sanctioning the 

arbitrary and unreasonable manner in which the defendants 
have applied their stated National Teacher Examination 
policy?

V
Whether the district court erred in not finding that 

Syvalius Walston, Jr., and Eula Y. Baker were fired for 
impermissible racial reasons?

I

« • 2.



I

3.

STATEMENT OF THE CASE
On May 27, 1970, a complaint was filed by the United 

States, pursuant to Title IV of the Civil Rights Act of 
1964, 42 U.S.C. 2000c-6, alleging that the County School 
Board of Nansemond County was operating a segregated 
school system [Appendix (hereinafter referred to as A.) 
pp. 12-19]. After the filing of various pleadings by both 
parties, the Court held a hearing on August 13, 1970, at 
which time the school board was ordered to implement a 
school desegregation plan which it had submitted for the 
1970-71 school year [A. pp. 23-30].

On May 13, 1971, the district court entered an order, 
sua sponte, requiring the United States to file on or 
before June 1, 1971, any motions for further relief which 
may affect the operation of the Nansemond County schools, 
and requiring the school board to file an answer on or 
before June 14, 1971 [Record (herein after referred to as 
R.) Vol. I, pp. 47-49]. In response to that order, the 
United States filed on June 1, 1971, a motion for supple­
mental relief alleging, inter alia, that the school board 
had hired and fired teachers in a racially discriminatory 
manner and requesting appropriate relief (A. pp. 37-39).

response thereto the school board filed a motion to 
dismiss and a further answer to the motion for supplemental 

relief (R. Vol. I, p. 65; A. p. 40).



On August 3, 1971, the Court held a hearing on the 
objections of the United States to the school desegregation 
plan for the 1971-72 school year (See R. Vol. VIII). The 
Court entered an order on October 18, 1971, overruling the 
objections of the United States to the school board's 
desegregation plan for the 1971-72 school year but requir­
ing certain modifications (A. pp. 76-77). The issues 
relating to the hiring and firing of teachers were deferred 
for a later hearing.

The appellants herein, certain black teachers formerly 
employed by the County School Board of Nansemond County, 
filed a suit against that school board on August 20, 1971 
(See A. pp. 80-84) . The complaint alleges, inter alia, 
that the school board is following a course of action 
which will diminish the number of black teachers and that 
the school board discriminated against such teachers in 
violation of their Fourteenth Amendment rights. The 
school board denied the allegations as set forth in the 
complaint (R. Vol. Ill, pp. 10-11).

On December 8, 1971 the district court ordered the 
consolidation of Civil Action No. 392-70-N (United States 
v. Nansemond County School Board) and Civil Action No. 472- 
71-N (Syvalius Walston, Jr., et al v. County School Board 
of Nansemond County) (See A. p. 86).

: • ' 4 .



II

After extensive pre-trial conferences, objections and 
discovery, the trial of this matter was held April 3 and 
4 of 1972 (R. Vol. XV; R. Vol. XVI).

On November 28, 1972, the district court issued a 
memorandum opinion (A. pp. 701-722). All plaintiffs, with 
the exception of Mrs. Watts whose claim was raised by the 
United States, were denied any and all relief (A. p. 722). 
The district court entered a final order on February 27, 
1973 (A. pp. 723-724) .

The appellants herein filed their notice of appeal 
on March 30, 1973 (R. Vol. Ill, p. 133).

The United States filed a notice of appeal on April 
30, 1973 (R. Vol. II, p. 308).

5.



6.

STATEMENT OF FACTS
A. Beginning The Transition From A 

Segregated School System
Prior to the 1970-71 school year/ the County School

Board of Nansemond County maintained racially segregated
1/schools. (See PX #9) By letter to the school board 

dated May 9, 1969, the Attorney General of the United 
States, acting pursuant to §407 (a) of the Civil Rights 
Act of 1964, protested "that after three years of deseg­
regation no white classroom teacher serves on a full time 
basis in a minority situation * * * [and that] all schools 
in the county continue to be racially identifiable by the 
composition of their faculties." (A. pp. 936, 937.) -

During the 1969-70 school year, the student enroll­
ment in the Nansemond County public schools was 9663, of 
which 6147 (64%) were black and 3516 (36%) were white 
(PX #9). Ten of the 18 schools had student enrollments 
that were 100% black. The remaining eight schools had 
majority white student enrollments (PX #9). Eight of 
the 18 schools had faculties that were 100% black; and 
the eight schools with majority white student enrollments

1/ The various parts of the record will be designated as 
follows:

Trial Transcript Tr. 
Government Exhibits GX 
Walston Plaintiffs' Exhibits PX 
Defendants 1 Exhibits DX



7.

had majority white faculties. (PX #9) . There was a total 
of 451 faculty members, of whom 255 (59%) were black and 

185 (41%) were white.
Commencing with the 1970—71 school year, the 

school board put into effect a court ordered desegrega­
tion plan utilizing pairing and zoning to bring about 
the transition to a unitary school system. In addition, 
the school board assigned the faculties in such a nner 
that no faculty contained only teachers of one race. 
Simultaneously, the school board began the implementation 
of a new policy of requiring certain teachers to submit 
a minimum score on the commons test of the National 
Teachers Examination, hereinafter referred .to as NTE (A.

pp. 445-446).
The available data show the racial breakdown of

f
the faculty in Nansemond County to be as follows:

Yea^ Black White Total % Black
1969-70 265 186 451 59%
1970-71 267 192 460 58%
1971-72 236 219 455 52%

(A. pp. 32, 35, 725-762; PX #9).
During the first two years of operation under the court 
ordered desegregation plan and the new policy of using 
the NTE, the newly hired faculty members were, as follows.

2/ The government's suit seeking school desegregation 
~ was filed May 27, 1970 (see A. pp. 12-19).



8.
Year Black White Total % Black
1970- 71 27 44 71 38%
1971- 72 14 84 98 14%
(A. pp. 767-770) .

Prior to 1970-71, the school board had required 
each applicant to possess a baccalaureate degree, a 
Virginia teacher's certificate endorsed for the grade or 
subject which that individual was to teach, and three 
letters of recommendation (A. pp. 829-830). Nevertheless, 
23 teachers without college degrees were teaching in the 
school district during the 1970-71 school year, 19 of whom 
were white (A. pp. 1056-1057). During the 1971-72 school 
year 19 teachers without college degrees were teaching 
in the school district, 14 of whom were white (A. pp. 
1054-1055). In both school years, there were 68 teachers 
teaching outside their areas ,of certification, approxi­
mately 50% of whom were white (A. pp. 1042-1053) .

B . The National Teacher Examination 
The NTE is a test developed and administered by 

the Educational Testing Service of Princeton, New Jersey 
(A. pp. 1136-1137, 1184). There are two major sections 
of the NTE: The Common Examinations and the Teaching
Area Examinations. The Common Examinations are designed
to measure certain aspects of. ya teacher's preparation

■'i

and general academic achievement. The Teaching Area 
Examinations cover over 24 subject areas and are designed



9 .

to indicate a teacher's knowledge of his area of speciali 
zation (GX #39, p. 6). The score scale for each section 
is 300 to 900 (GX #39, p. 7).

There is no absolute score. All of the examinations
are separately normed on a national sample of graduating

i
college seniors. (GX #39, p. 8; A. p. 1185) . Thje indi­
vidual is scored in comparison with the other persons 
taking' the tests (A. p. 1185) .

The NTE was constructed to aid the various institu­

tions of higher education in determining the adeq aacy of

their training programs. 
been validated to predict

it was not designed
3/

job performance.
andI

i
has not

1 ,---------------  , j
3/ Dr. Deneen, Director of Teacher Examinations for the 

Educational Testing Service, testified that, unlike 
the Law School Aptitude Test which is "a predictive 
instrument, validated against performance in law 
schools" (A. p. 1201), "[t]he National Teacher Exami­
nation has been validated not to predict teaching 
performance as such, that is not looking forward, but 
has been validated as a standardized record of a past 
event. That is why it is an achievement test and not 
an -aptitude test. It reflects backward upon the can­
didate’s college career." (A. p. 1201).
Similarly, Dr. Rosner, Dean of Teacher Education at 
the City University of New York and formerlyJthe Direc­
tor of Test Development for Educational Testing Service, 
testified: "* * * the original purpose in preparing
the test was to provide a more common yardstick for 
assessing the end product of four years of teacner 
preparation so that colleges or universities which 
prepare tea,chers could determine how their students 
measured up against other students undergoing similar 
preparation so that one could carry out studies modi­
fying the teacher training program to determine whether 
or not variations in teacher training produced different 
results 'in terms of the graduate's knowledges and 
understanding." (A. p. 511).

t



C . Nansemond's Decision To Use The NTE
In 1970, and without benefit of prior studies or in- 

depth information concerning the NTE, the school board 
adopted the policy of requiring certain teachers to submit 
a minimum score of 500 on the Common Examinations of the 
NTS (A. p. 837; PX #7, p. 19). Teachers in certain non- 
academic areas, such as physical education, driver educa­
tion, and trade and industrial courses, and "teachers 
currently employed" wore exempted.^ "However, if a transfer 
to another school is affected, that teacher may be placed 
on a three month provisional contract until such time as 
he or she has had adequate opportunity to take the National 
Teachers Examination and the scores reported to the 
Superintendent's Office." (A. pp. 962-953.)

Teachers new to the system, whether experienced or 
inexperienced, who have not taken the NTE are eligible for 
employment for at least a year, within which time-they 
must submit a score of 500 or suffer dismissal (A. pp. 
440-441). Extensions of time may be given, depending 
"on where her score was and what the possibilities were 
for her to make over 500." (A. p. 439.) Teachers who
have been separated from the system for any period of 
time must meet these requirements as a condition for
reinstatement.



11.
The superintendent had-two stated reasons for 

recommending to the school board that the Common Examina­
tions of the NTE be used in employment decisions: The
Stahl Report and the superintendent's prior experience 
with teachers from North Carolina (A. pp. 360-361, 364).
In 1969, at the request of the school board, a committee 
of consultants headed by Dr. Stanley Stahl made a Curricu­
lum Study and Evaluation Survey of the school district.
The Stahl Report, however, has no findings, discussion
or recommendation concerning the National Teacher Examina-1/tion. (See GX #8B.)

On the basis of his own informal, undocumented 
survey, the division superintendent of schools had con­
cluded that a number of teachers who performed very 
poorly were from North Carolina where there is an NTE 
requirement for teacher certification (A. pp. 364, 835- 
837) .

4/ The Stahl Report noted that, in general, "teachers 
showed competency in the content matter but their 
weaknesses showed in making the content meaningful 
and relevant to the pupils. With rare exception, 
the instructional methods were conventional, with the 
teacher talking and the children listening. * * *
There is no question but that the Nansemond County 
School System, must consider a massive in-service 
training program, incorporating all teachers and admin­
istrators into the objectives . . .  An active and 

' stimulating in-service training program is the prime 
responsibility of the system . . . ." (GX #8B, pp.
6-7) .



/
12.

At no time prior to the school board's adoption of 
the NTE as a device for selecting teachers did anyone 
from the school district consult with the Educational 
Testing Service about the nature of the examination or 
the proper use of the examination (A. p. 1170). On 
September 1, 1970, Dr. Roger Long was hired by the school 
district for the position of general supervisor of the 
Nansemond County public schools (A. p. 400). From his 
survey, undertaken at the direction of the school adminis­
tration, he concluded that there should have been changes 
in the manner in which the school district used the test. 
In a letter dated July 22, 1972 to an official at 
Educational Testing Service, he stated:

"If any conclusions were reached by us, it would 
be that our use of the examination as a screening 
device is quite solidly based, but the over-all 
tenth percentile cut-off used by Nansemond County 
needs to be examined so that comparisons can be 
made among individuals. . . . "  (PX #2.)

Dr. Long's concern about the cut-off point was shared
5/

by the witness who was and by the witness who had

5/ Dr. Deneen: "ETS generally discourages the use of
cut-off scores for all of its examinations. * * * v?e 
oppose them under any circumstances, and that reasoning 
. . . on the part of the school district, would not
change our opinion. We would consider that an inade­
quate basis to adopt something we consider a mistake 
in the first place." (A. p. 1180.)



6/ .been in the employ of the Educational Testing Service.

13 .
I

6/ Dr. Rosner: "Mow, if the —  if a school system wishes
to use the NTE for, let us say, an .initial screen 
before deciding to hire someone, the school system, 
in my judgment, should have some evidence that the 
test scores differentiate among teachers who are 
judged to be effective or ineffective." (A. p.
613. )



I

14 .

D. Application Of The NTE 
Policy To The Plaintiffs

The teaching experience of the appellants who 
were dismissed for insufficient NTE scores ranged from
thirteen years to one year, viz:
Roumaine Howell 
Celestine Whitehead 
Dorothy Mozelle 
Evelyn Jones 
Queen Malone 
Thelma Corprew 
Brenda Williams 
Josephine Gatling

13 years 
11 years 
8 years 
3-1/2 years 
3-1/2 years 
3 years '
2 years 
1 year

(A. P- 386)
(PX #11 , PP- . 32-33)
(R. Vo. XV, p. 271)
(PX #15 / pp. 168-170)
(PX #12 / pp- 279-280)
(PX #13 , pp. 267-269)
(R. Vol . XV, P- 247)
(PX #10 , p- 158) •

1. Plaintiff Teachers With Prior 
Experience In Nansemond County

Of the listed teachers, three (Celestine Whitehead, 
Queen Malone and Evelyn Jones) had taught in Nansemond 
County at some time prior to the 1970-71 school year.

Celestine Whitehead taught in Nansemond.County 
from 1966 to 1968 when she resigned to join her husband, 
a serviceman stationed in Europe (PX #11, pp. 50-51), 
there then being no provision for a leave of absence 
(PX #11, p . 55). Mrs. Whitehead taught elementary school 
while in Germany (PX #11, p. 34) and earned a high recom­
mendation from her principal there (g X #11; A. p. 987).
She was re-employed in Nansemond upon her return for the 
1970-71 school year. (PX #11, p. 54). During the 1970-71



15.

school year, she received the Teacher of the Year award 
by the Chuckatuck Ruritan Club, a white organization 
(A. p. 1363-B).

Her principal for 1970-71 rated her outstanding 
or above average in all categories on the "Evaluation of 
Personnel" form (A. p. 936). Her principal, on the same 
form, recommended her for reappointment for the 1971-72 
school year. However, her contract was not renewed for 
the 1971—72 school year because she did not submit a 
score of at least 500 on the NTE.

Two teachers who had been required to resign 
during the 1969-70 school year for reason of pregnancy, 
were re-employed for 1970-71 with the condition that con­
tract renewal for 1971—72 would be conditioned upon 
submission of at least 500 on the NTE.

Queen Malone was first employed in Nansemond 
County in January of 1968 (PX #12, p. 279) and taught 
until June of 1970 (PX #12, p. 280). Her child was born 
on August 12, 1970 (PX #12, p. 288). With her doctor's 
permission, she requested re-employment after the birth 
of her child, but was not re-employed until December of 
1970 (PX #12, p. 287), wh en she was given a contract the 
renewal of which was conditioned'upon the submission of 
a 500 score on the NTE (A. p. 1368).

I

I



For the 1969-70 school year, Mrs. Malone had 
received an overall evaluation of "above average" and 
was recommended for re-employment (A. p. 990). For the 
1970-71 school year, she received a similar evaluation 
and recommendation for reappointment; moreover, her 
principal commented that she was an excellent primary 
teacher (A. p. 939). Her contract, however, was not 
renewed for failure to submit a score of 500 on the NTE.

Evelyn Jones was first employed in Nansemond 
County in 1967 and remained in continuous service until 
January of 1970, when she had to resign for reason of 
pregnancy (PX #15, pp. 169-170). During the summer of 
1970 she reapplied for a teaching position in Nansemond 
County and was re-employed (PX #15, p. 171). Her contract 
also contained the condition that its renewal was subject 
to the submission of at least a 500 score on the NTE 
(A. p. 1372). She received an above average evaluation by 
her principal and was recommended for reappointment 
(A. p.. 9 83) . Her contract was no't renewed because she did 1 
not submit an NTE score of at least 500.

2. Plaintiff Teachers Who Should
Have Been Exempted From The NTE

The NTE requirements, as stated, specifically 
exempt "certain non-academic areas such as physical

16.



17.

education and driver education" and "certain trades and 
industrial courses" from the minimum score of 500 (A. pp.
962-963. During the 1971-72 school year, at least three 
teachers employed by the defendant were given exemptions~- 
teachers of brick masonry, auto mechanics, and electronics 
(A. p. 430).

However, Josephine Gatling, who was employed 
to teach physical education and driver education for the
1970- 71 school year (PX #10, p. 165), was not re-employed 
for the 1971-72 school year because of her failure to 
submit a score of 500 on the NTE (PX #10, p. 156), despite 
the fact that her ratings on the personnel evaluation 
were generally above average and outstanding and she was 
also recommended for reappointment by her principal (A.
p. 995). Her contract required that she submit a score 
of 500 on the NTE in order to be re-employed for the
1971- 72 school year (A. p. 1365). She was denied' the 
exemption that was extended others similarly situated 
(A. p. 430).

3. Transfer And Resulting NTE Requirements 
May Be Imposed By The Administration

The defendants also have a discretionary clause
which allows them to require a teacher currently employed
to submit a satisfactory score on the NTE "if a transfer
to another school is affected" (A. p. 963). The teacher



18.

may be placed on a three-month provisional contract until 
that condition is met.

If the teacher is transferred by the system, 
the teacher is not required to take the NTE. If the 
teacher requests the transfer, the condition is applied.
The condition probably would be applied if a principal 
requested the transfer; however, no firm guidelines have 

yet been established. (A. pp. 424-425).

4. A Teacher Dismissed Despite 
Her Required NTE Score____

Thelma Corprew was first employed -in Nansemond 
County for the 1970-71 school year (PX #13, p. 269) . She 
has a collegiate professional certificate in elementary 
education and taught the fourth grade (PX #13, p. 272;
A. p. 997). Prior to her employment in Nansemond County 
she had taught two years in other school systems (PX #13, 
pp. 267-268). During the 1970-71 school year she was 
evaluated above average in ten cat^go^iss and average 
in four. Her principal recommended her for reappointment 
(see A. p. 997). Her contract, however, was not renewed 
at the end of the school year because she had. not sub­
mitted a satisfactory score on the NTE (PX #13, p. 272.

In July of 1970, Miss Corprew took the NTE again 
and scored 505 on the common examination (PX #13, p. 275).



She called Mr. Cockrell, the assistant superintendent in 
charge of personnel, on August 19, 1971, to inform him 
that she had scored above 500 on the NTE (PX #13, p. 275). 
Mr. Cockrell informed her that all positions were filled 
for the year (PX #13, p. 275. At least three white 
persons filed applications after August 19, 1971, and were 
hired before the 1971-72 school year began, to teach 
elementary grades (see A. pp. 1101-1106).

5. General Results Of NTE Requirement

Each of the eight appellants has a collegiate 
professional certificate and, therefore, is"duly certified 
to teach in the State of Virginia; moreover, all were 
recommended by their respective principals for reappoint­
ment for the 1971-72 school year (see A. pp. 962, 986,
988, 989, 993, 994, 995, 997, 998). Each would now be 
employed in Nansemond County but for the NTE requirement.

E. Appellants Dismissed For 
Reasons Other Than The NTE

In addition to the appellants dismissed for 
reasons of the NTE, two of the appellants were dismissed 
for matters unrelated to the NTE.■



/I
20 .

1. Syvaltus Walston

Syvalius Walston was first employed as a teacher 

in Nansemond County in 1961. He has a baccalaureate 
degree and a Virginia collegiate professional teaching 
certificate with an endorsement in elementary education - 
grades 4 through 7 (A. p. 536). He taught at the Florence
Bowser School for one year. The following school year he 
taught in the Portsmouth School System. He returned to 
Nansemond County as a teacher during the 1964-65 school 
year and taught continuously until his employment was 
terminated at the end of the 1970-71 school year (A. pp. 

535-536).
During the 1969-70 school year, Mr. Walston 

taught science at the Oakland Elementary School (A. p.
536), which had an all-black student body and faculty 
(PX #9). He was evaluated by his principal during the 
school year and received an overall rating of outstanding. 
He was also recommended for re—employment (See PX -n-25) .

Mr. Walston was assigned to the Southwestern 
School for the 1970-71 school year, where he taught 
health and physical education for seven weeks before 
being assigned to teach seventh grade English (A. pp. 537- 
538). In 1969 Southwestern had an all-black student body



21.

and faculty headed by David Fulton, principal. (PX #9). 
Under the'1970-71 court ordered desegregation plan, 
Southwestern had 363 black and 314 white students. There 
were 16 black and 3 white teachers assigned for the 1970- 

71 school year (see GX #1 (a)) .
On March 5, 1971, David Fulton, principal, 

met with Mr. Walston and prepared an "Evaluation of 
Personnel" form as required by the school board (A. pp. 
538, 971-972). At that time he rated Mr. Walston out­
standing in one category, above average in two, average 
in ten and below average in the area of "professional 
dedication" and he also recommended reappointment on 
probationary status (A. pp. 480-481; see also PX #19). 
There were no unsatisfactory ratings.

Superintendent Wood informed Mr. Fulton, by 
letter of April 2, 1971, that a teacher could not be 
recommended on probationary status and that a specific 
recommendation to employ or not employ had to be made 
(A. p. 1014). In response to that letter, Mr. Fulton, 
by letter of April 5, 1969 (A. p. 1015), recommended
Mr. Walston for reappointment for the 1971-72 school year.

The superintendent testified that he expressed 
his dissatisfaction, in a principals' meeting on April 8, 
1971, at the way in which the principals were making



- ■ i . v i i n f f a i a ,

22 .

evaluations and recommendations (A. pp. 338-339). It was 
his opinion that:

", . , if a principal preferred not to
live up to their responsibility and make 
a fair and equitable and honest evaluation 
and recommendation, then I think that 
principal had made his own bed and had 
to sleep in it." (A. p. 339)
Every principal employed by Nansemond County at 

that time was on a non-tenured status (Tr. 454).
By letter of April 9, 1971, Mr. Fulton informed 

the superintendent that he was unable to justify Mr. 
Walston's recommendation following the principals' meet­
ing and that "unless I hear differently from you by 3:00 
P.M. Tuesday, April 13, 1971, I shall confer with each of 
the teachers above and present then a copy of the enclosed 
letter." (A. pp. 1016). On April 14, 1971, when Mr. 
Fulton handed him a letter dated April 9, 1971 (PX #23), 
Mr. Walston discovered that his principal had changed his 
recommendation about reappointment (A. pp. 538).

The letter of April 9, 1971, stated that the 
recommendation was changed because of incidents occurring 
on March 8, 1971 and March 12, 1971 (See PX #23). Each 
of these events occurred ana was known to the princxpal 
prior to his letter to the superintendent dated April 5, 
1971, in which he specifically recommended Mr. Walston 
for reappointment. The recommendation not co reappoint



23.

Mr. Walston was made without valid justification.
Mr. Walston requested an open hearing before 

the school board. He was granted a closed hearing 
(A. p. 546). His principal, Mr. Fulton, decided not to 
attend that hearing (A. p. 502). Although the Virginia 
statutes require a hearing before the school board (see 
Code of Virginia §§22-217.1 to 22-217.8), it was the 
testimony of Mr. Custis, a member of the board, that in

-v
Mr. Walston's case, the school board did not vote nor 
did it make a decision (PX #7, pp. 12-13) :

[By Mr. Bell]:
"Q Was a vote taken after the hearing of 

Syvalius Walston?
"A No, we did not.

*  *  *

"Q But the Board did not make a decision, 
is that correct?

"A No, we didn't make a decision...."
Mr. Walston was not given a contract for the 

1971-72 school year.

2. Eula Baker

Eula Baker began teaching in 1941 in Surry 
County, Virginia. She started teaching in Nansemond 
County in September of 1959, where she remained until



24 .

June of 1971. Her time of teaching service is twenty- 
nine years and eight months - four months short of 
retirement (A. pp. 580-582). Mrs. Baker has a 
baccalaureate degree and a Virginia collegiate pro­
fessional teaching certificate v/ith an endorsement in 
elementary education (A. p. 1012; 581).

During the 1969-70 school year, Mrs. Baker
taught at the Mount Zion School, v/hich had an all-black

*
student body and faculty (PX #27, PX #9). she was 
evaluated by her principal and recommended for 
reappointment (PX #27) . She remained at Mount Zion for 
the 1970-71 school year, when the school was desegregated.
The student enrollment was 47% black; seven of the thirteen 
faculty members v/ere black (A. pp. 582; see GX #1 (a) ) .
On January 29, 1971, Mrs. Baker was evaluated by Mr. Tucker, 
her principal (A. p. 1013; Tr. 13). Mr. Fred Brown 
replaced Mr. Tucker as principal of Mount Zion School on 
February 22, 1971 (Tr. 407).

Mr. Brown conducted the'third evaluation of 
Mrs. Baker on March 26, 1971, including the recommendations 
of Mr. Tucker and Mrs. McGronan, the curriculum coordi­
nator (Tr. 385; A. pp. 564, 569), at which time he rated 
her above average in three categories, average in ten and 
below average in one (A. p. 1012). He also recommended 
her for reappointment for the 1971-72 school year (A. p. 1012).



25.

On April 8, 1971, Mr. Brown also attended the 
principals' meeting at which the superintendent expressed 
his disagreement with the evaluation procedure (A. p. 573. 
Mr. Brown met with Mrs. Baker on April 13, 1971, and 
informed her that "something had come up" and that he had 
to change his recommendation (A. pp. 585, 576). Mrs.
Baker received a hearing before the school board, but 
neither Mr. Brown nor Mrs. McGronan testified (A. p. 586). 
As in the case of Mr. Walston, the school board took no 
action (PX #7, p. 25). Mrs. Baker was not offered a 
contract for the 1971-72 school year. Both of these 
teachers received evaluations from their principals which 
compare favorably with other teachers who were retained 
for re-employment and which can not be rationally related

f
to recommendations of non re-employment (See GX #8C).



26.

A R G U M E N T
I

The Board Did Not Overcome The Strong Inference 
Of Racial Discrimination Created By The Use 
Of A Device Which Eliminated Black Teachers 

At The Commencement Of The Desegregation Process
I

In .1969 when the Justice Department charged the school
board with operating a segregated school system and put it
on notice of the possibility of court action to desegregate
the student and teacher assignments, there was and had been

» '
no use of National Teacher Examination scores in selection, 
hiring or retention of teachers. The school board adopted 
the NTE requirement in January 1970 at the urging of the 
superintendent (A. pp. 832, 835). j

Nansemond County school board did not desegregate its
Istudent bodies or faculties until ordered by the district

|

court (A., p. 76) in 1970, fully 16 years after Brown v. 
Board of Education, 347U.S. 483 (1954). ■

The evidence in this case shows, and the district
if

court found, that the use of the cut-off score o±. 500 on 
the Common Examinations of the NTE for employment decisions 
has an adverse impact on the black teachers in Nansemond 
County (A. pp. 708-709). The uncontradicted evidence is 
that there is a demonstrable disparity between the test 
scores of blacks and whites on the Common Examinations of 

the NTE (A. pp. 1191-1194).
\



27.

Prior to the 1970-71 school year, 59% 
were black. For the 1970-71 school year, 
the NTE requirement and the first year of 
new faculty members were hired, of whom 27 

black.

of the teachers 
the first year of 
desegregation, 71
(or 38%) were

At the end of the 1970-71 school year, the school 
board denied reemployment to 25 teachers, 21 of whom were 
black (A. p. 764). Of the 25 teachers refused reemployment,s !
15 black and only 2 white teachers were dismissed, after a

1
year of satisfactory teaching, for failure to score>500 on
the NTE (See A. p. 764). In 1971-72, 98 new teachers were
hired in the school system of whom only 14 (dr 17-s) were

\

black (GX #2).
In Baker v. Columbus Municipal Separate School 

District, [329 F. Supp. 706, 719 (N.D. E.D. Miss. 1971), 
affirmed .462 F . 2d 1112 (5th Cir. 1972)], the court stated

that i
"[a] 'long history of racial discrimination, J 
coupled with'disproportionate discharges in 
the ranks of Negro teachers where desegrega­
tion finally is begun, gives rise to a rather , 
strong inference of discrimination. * * 
citing --

Williams v. Kimbrough, 295 F.Supp. 578, 585 (W.D. La. 1969). 
See Bonner v. Texas City Independent School Dist., 305 F. 
Supp. 600, 621 (S.D. Tex 1969); Chambers v. Hendersonville 
City Bd. of Educ., 364 F .2d 189, 192 (4th Cir. 1966)

\



(en banc); North Carolina Teachers Ass’n v. Asheboro City 

Board of Ed. , 393 F.2d 736 , 743 (4th Cir. 19-68) (en banc) ; 
Jackson v. Wheatley School District No., 28, 430 F.2d 1359,
1363 (8th Cir. 1970); cf. United States v. Jefferson County

j
Board of Education, 372 F.2d 836 , 887-888 (5th Cir. 1966) , 
aff’d en banc, 380 F .2d 335 (1967) cert, denied, Caddo 
Parish School Board v. United States, 389 U.S. 840, 88 S.Ct.

67, 19 L.Ed.2d 103. \
!In an attempt to meet the burden of the board,jas
Idescribed in Chambers, supra, and Jefferson County,;supra, 

the district court made several findings of fact wnich are
1 Iunsupported by this record. " ■ \

\The Court below erroneously states that the school
I

district made inquiries of Educational Testing Service and 
surrounding school districts, and conducted various studies 
before adopting the NTE requirement (A. pp. 703—704). The 
fact is that contact was made with the surrounding school
districts and the North Carolina Department of Teacaer

if
Certification in 1971, after the NTE was adopted (PX #1).

‘ 28.

7/

7/ Dr. Deneen commented on the superintendent's "study" 
with respect -to the North Carolina teachers:
"dearly, however, v/hat mr. Wood did was not a formal 
and very controlled study, and one would scarcely put 
. great deal of confidence in the results of what you 
might call an eyeball examination of the sampling of 
candidates" (A. p. 1170)*

I



29.

Moreover, Educational Testing Service was contacted after 
the requirement was adopted (PX #1; A. p. 1170). In 
addition, the research and other information from journals 
was gathered by Dr. Long after the requirement was adopted

t
(see A. pp. 417-420). When Dr. Long was hired in September 
of 1970, one of his first assignments was to study the NTS.
His training and education are not related to testing. He 
had never seen a copy of the examination prior to July 1971 
and had no familiarity with the examination. His study 
was superficial and unscientific (see A. pp. 411-423; 435-43o) 

The district court stated that there was no evidence to 
support a finding that Nansemond County intentionally dis­
criminated against black teachers (A. p. 708). The ^vidence 
in this record clearly indicates that the superintendent 
knew that the institution of a cut-off score of 500 would 
have a greater impact on the black applicants (A. pp. 832- 
834, 839-840). Moreover, the following quote reveals that 
the superintendent had a definite opinion concerning the

• l
blacks seeking employment with his system:

"n Do you have any opinion as to why more black
than white teachers failed to attain the scores.

"A I think I have already expressed that, and that 
is the fact that many of your Negro institutions 
-- and I have to say as I look down the list 
all of these people are graduated from a Negro 
institution-. They have open admission standards 
which amount to no standards at all. If you can 
pay your admission money and have graduated from 
high school, then you are admitted to college.

\



30.

I think, many Negro people are going into college 
who have no business being there, and they are 
coming out with a remedial high school education 
rather than a college education." (A. pp. 839-S40)

It was with this belief and knowledge that the super­
intendent made the decision to use the cut-off score. In 
the face of the clear pattern of statistical discrimination 
evident- in this system, this decision is apparently condemned 
by the court in Griggs v. Duke Power Company, 401 U.S. 424 
(1971); also Jones v- Lee Way Motor Freight, Inc.,431 F .2d
245 (10th Cir. 1970), cert denied, 401 U.S. 954 (IS 71).1 I
As stated in McDonnell Douglas Corporation v. Percy Greer./
41 L.W. 4651, at 4655: " . . .  statistics as to petitioner's
employment policy and practice may be helpful to a determi­
nation of whether petitioner's refusal to rehire respondent 
in this case conformed to a general pattern of discrimination 
against blacks."

Thejre is yet another reason why the school board failed 
to overcome its burden of rebutting plaintiffs' claims of 
racial discrimination. Dr. Deneen's testimony confirmed a

if

demonstrable disparity between the score of blacks,and whites 
on the NTE. He indicated that a mean score of 596 for 
graduates of the white institutions tested as compared with 
a mean score of 461 for graduates of black institutions 
meant "that far fewer than half the [black] candidates could 
possibly qualify" and that the result would be just the 
opposite for -white applicants (A. pp. 1191-1194).

t



. ' 31.
In view of the unchallenged evidence that many of the 

rejected teachers had been recommended - some enthusiasti­
cally - for reemployment based on their actual performance, 
it is clear that the NTE requirement is condemned by the 
court's prohibition against standardized testing devices 
which, however neutral on their face, operate to exclude 
many blacks who are capable of performing effectively in 
desired positions. As stated by the Court in McDonnell, 
supra, at 4655: "Griggs was rightly concerned that child­
hood deficiencies in the education and background of 
minority citizens, resulting from forces beyond tneir con­
trol, not be allowed to work a cumulative and invidious 
burden on such citizens for the remainder of their lives."

The evidence shows that at least four black teachers 
were the victims of irrational and uneven application of 
the NTE requirement. Josephine Gatling was required to 
take the examination although the policy expressly excluded 
physical education instructors (A. pp. 962-963). Evelyn 
Jones, who had been employed continuously in the school 
district from 1967 to January of 1970 (when she had to 
resign for reasons of pregnancy), was required to take the 
examination when she returned in the summer of 1970 (P-̂  wl5) .
Similarly, Queen Malone, who had been employed continuously 
in the school district from 1968 to June of 1970 (when she 
had to resign for reasons of pregnancy), was required to



II

J

take the examination upon her return in December of 1970 
(PX #12). Thelma Corprew was told in March of 1971 that 
she would not be reemployed for failure to score 500 on the 
NTE; and she was not reemployed although she informed tne 
school officials that she had scored 505 on the NTE. Three 
vacancies in her teaching area were filled immediately 
thereafter by white applicants.

The court below made an explicit finding that Beulah 
Watts, a black principal who was demoted, was a victim of 
racial discrimination (A. p. 719).

This evidence raises an inference, which was not 
overcome, that there was intentional discrimination in the 
formulation and application of the NTE Common Examinations 
cut-off score requirement. See Baker, supra; Chambers, supra,

32.

Williams, supra.



33.

The Board Has Demonstrated Neither A Rational
Relationship Between The Tests And The Purpose 

For Which They Were Used Nor A ■Compelling 
Interest To Justify The Use Of The Tests

As has been demonstrated earlier, the adoption of 
the 500 cut-off score on the Common Examinations of the 
NTE has caused a significant decrease in the number of 
black teachers in Nansemond County. Studies conducted 
by E.T.S. demonstrate that the use of a cut-off score 
on the NTE falls far more heavily on blacks (A. pp. 1191- 
1194) .

The evidence shows that there is no study as 
documentation by either the school district or E.T.S. 
which demonstrates a correlation between any score on 
the NTE and effective or successful teaching (A. p. 711) . 
The court thus concluded that "... the NTE lacks pre­
dictive validity." (A. p. 711.)

Moreover, there is no evidence in this record to 
support the court's statement that "... there is no way 
to detect one teacher's effect on a class of students 
for the variables are too vast." (A. p. 711.) To the 
contrary, the uncontradicted testimony is that teacher 
effectiveness can be measured (A. pp. 608-610), and that 
it is the responsibility of the school system to come 
up with the version or definition of teacher effectiveness

II



that it will apply (A. pp. 622, 643-644, 1159, 1163, 

1189) .

8/

What the evidence does show, however, is that,
because of the nature and purpose of the NTL, there is
no demonstrable relationship between a given test score
and teaching ability or performance (A. pp. 612, 620-
622, 1159-1162). The testimony of both experts that
such relationship is largely unknown or is non—existenu

in this case as follows:
"Q [Dr. Deneen,] [w]hat would it measure with 
respect to whether or not a teacher functions 
effectively in the classroom?
"A It would measure whatever part of 'function­
ing effectively in the classroom' is dependent 
upon his knowledge.

f"Q Do you know what part that would be?
"A That can't be answered with any accuracy 
because of the complexity of defining teaching 
or good teaching or competency. In general the 
studies we have done, studies with which we are 
by no means completely satisfied, suggest that 
knowledge is a component somewhere in the area 
of 25 to 30% of the total variance or the total

8/ This is particularly appropriate here where both 
experts agreed that the best way to measure a 
teacher's performance is by on-site observation and 
that cut-off scores should/'.never be utilized^to 
eliminate a teacher when there is a record Oi job 
performance (A. pp. 1177-1178). All of the appellan 
teachers were evaluated favorably and recommended 
for re-employment by their principals.



(A. p.
35.

universe
1160.)

called teaching behavior,
9/

"Q Dr. Rosner, having reviewed that answer that 
I just handed you and heard Dr. Long's testimony 
and having read some of Superintendent Wood's 
deposition, do you find that the -- or what . 
relationship do you find that what they have; 
done establishes between their score requirement 
and a teacher's performance?

1
"A So far, none.
"Q And what relationship would you find estab­
lished between their score requirement and a- 
teacher's ability to profit from in-service \ 
training?
,!A As it is reflected in this response, so far, 
nothing." (A. p. 630.) t
Any possible link between the NTE and the measuring

1 !
of characteristics necessary for teaching iri Nansemond

\dissolves because of the failure of the school system)
to produce evidence that the test scores differentiate 
among teachers as they are judged to be effective or 
ineffective.

Just as in Griggs, supra, at 431, the test used
by Nansemond County was adopted "without meaningful

i t
study of their relationship to job performance ability."

IDr. Rosner outlined the kind of study that needed to 

be done’

9/ The NTE does not measure many' other important char­
acteristics required of a teacher (see A. pp. 1159- 
1162; 1186-1189).



36.

"Now, on the basis of this kind of preliminary 
assessment of the test, a school system would be 
able to judge whether or not the test should be 
studied further as a possible instrument_to_pre­
dict future performance of teachers within its 
own instructional settings.
"So that assuming that a school system were ; 
satisfied that the test was technically well- 
constructed, that the content measured by the_ 
test reflected the kinds of knowledges it believes 
that teachers ought to possess, that the experi­
ence with the test elsewhere indicated tha<_ the 
test did a reasonably good job for school districts, 
perhaps even similar to the one that was goijng to 
use it, then the school system ought to administer 
the test to a representative sample of the teachers 
or cause the test to be administered to a repre­
sentative sample, to attempt to obtain evidence 
of the performance of the teachers in the system 
to determine whether or not there was any rela­
tionship between the performance on the test, and 
what the system valued as teacher performance 
under its own conditions of employment. \

I
"On the basis of a determined relationship between 
the test score and independent evidence of teacher 
performance within the specific conditions of ̂ that 
particular school system, the school system ̂ migh l. 
make a determination as to the degree to which 
you wish to rely on tne test score as a useful 
predictor of future performance.
"THE COURT: When you were operating the Testing
Service, isn't that exactly, what you and yop.r group 
did?
"There must be a purpose in putting out the N1E. 
"THE WITNESS: No — " (A. pp. 609-610..)

*



The school system thus uses the NTE to create an 
arbitrary classification without supporting data.  ̂
"Accepting arguendo that whites scoring high on thj 
test perform satisfactorily . . • , to conclude that 
therefore blacks scoring low could not adequately per­
form the same job is a non sequitur." United States 
v. Jacksonville Terminal Co., 451 F.2d 418, 456 (5th

•----------------- ---------------- — ----------------------- ‘ '  -*t

Cir. 1971) .
As was previously indicated, there has been ho

showing that the test bears a reasonable relationship to
the job performance and there is absolutely ..no evidence 

m 10/ . \.that the cut-off score of 500 has a rational basjLS.
Even under a reasonable relationship standard, "... any
tests used must measure the person for the job and not

|

the person in the abstract." Griggs, supra, at 436.

10/
\i •The standard error of measurement of the tes,i_ xs 

such that a "...score of 500 means that his true 
score is probably between 475-525 and almost cer­
tainly between 450 and 550." (A. p. 1204.) Dr.
Deneen indicated that the fact that one examinee 
scored 490.and another examinee scored 502 on the 
NTE " tells you nothing about their success as 
a teacher nor in itself does.it really tell you 
anything about their achievement in college. The 
difference is too small between them." (A. pp. 
1201-1202.)



38.

Griggs, however, as well as other testing cases 
decided under Title 77.1, is directly applicable here,' since 
the prohibitions against employment discrimination embodied 
in Title VII, governing private employers, coincide with 
those embodied in the Fourteenth Amendment governing public 
employers. It would be anomalous indeed if public employers 
had a lesser obligation than private employers to afford 
equal employment opportunities. See Castro v. Beebher,
459 F . 2d 725 (5th Cir. 1972); Baker, supra. See ajt.so 
McDonnell Douglas Corp., v. Green, supra, at 4654,’n.l4.

When there is evidence, as is here, of a racial impact 
or classification, the school system bears the heavy burden 
of demonstrating that there is a compelling interest to be 
promoted. Hunter v. Erickson, 393 U.S. 385 (1969); Loving 
v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 
U.S. 184 (1964); Korematsu v. United States, 323 U.S. 214
(1944). This burden must be met even when there îs no 
evidence of an intent to discriminate. See, e.g.  ̂Norwalk 
CORE v. Norwalk Redevelopment Authority, 395 F. 2d 920,931 

(2d Cir. 1968) .
Xn Grigcis v. Duke Power Co. , supra, the Court stated.

"The touchstone is business necessity. If an 
employment practice which operates to exclude 
Negroes cannot be shown to be related to job 
psrfonnance, the practice is prohibited....
(p. 431)

*  *  *

t



39.

" . . .  but good intent or absence of discrimi­
natory intent does not redeem employment pro­
cedures or testing mechanisms that operate as 
'built in headwinds' for minority groups and 
are unrelated to measuring job capacity." (p. 432).

This standard thus requires a showing that tlje test
I

scores have a manifest relationship to the job performance 
and that there is no less discriminatory alternative available. 
Griggs, supra; Robinson v. Lorillard Corp., 444 F.2d 791,
798 (4th Cir. 1971); Moody y. Albemarle Paper Co.,'; 4 74 F. 2d 
134, 138 (4th Cir. 1973); United States v. GeorgiajPower Co., 
474 F.2d 906 , 912 (5th Cir. 1973); 3aker, supra.

I *
The school district has available the traditional and

universally used supervisory rating system. The rating
• •system can be made both objective and less discriminatory; 

moreover, it may be more reliable than the present system
11/ Iof judging teacher performance.

It’ is not surprising that in light of such eyidence 
the district court concluded that the NTE lacks predictive 
validity (A. p. 711). This finding is fatal to thfe continued

I
use of the NTE because it is used by Nansemonci on tne hypo­
thesis that those who score above 500 will be successful

11/ Dr. Deneen testified that "samples of behavior are
always better predictors of future behavior than is, 
say, a pencil and paper test." (A. pp. 1177-1178.)

t



III

and those who do not will not be successful; ie., it is 
used as a device to predict performance. There has been 
no job analysis or validation studies to support this 
hypothesis. See, Moody v. Albemarle Paper Co., supra at 
137-140. Use of the NTE without a demonstrable correlation 
between test scores and job performance violates the Due 
Process Clause. Baker, supra Moody,' supra; Rooinson v. 

Lorillard, supra. ,

40.



41.

Ill

The School District Has Applied 
The Stated NTE Policy Arbitrarily

The school district applied its stated NTE policy 
arbitrarily and thereby caused the dismissal of four black 
teachers• who, under fair standards, would not have been 
required to take the NTE.

Queen Malone and Evelyn Jones were required to take 
the NTE even though they were not new teachers. Mrs. Malone 
had taught continuously in Nansemond from January of 1968 
to June of 1970. Mrs. Jones had taught continuously in 
Nansemond from 1967 to January of 1970. Both were required 
to resign for reasons of pregnancy. Evelyn Jones returned 
to Nansemond in August of 1970 and Queen Malone returned in 
December 1970 (see PX #12, #15). Both were forced to take 
the NTE as a condition for reemployment.

Josephine Gatling was fired for failure to submit a 
score of 500 on the NTE, although the stated policy clearly 
exempted her because she taught physical education (A. pp. 
962-963).

Thelma Corprew attained a score of 505 on the NTE in
July of 1970 but was refused continued employment on the

"i| .ground that there were no vacancies, while several white 
teachers were immediately thereafter employed.

The Due Process and Equal Protection Clauses of the 
Fourteenth Amendment prohibit the application of standards in



42.

such an uneven and irrational manner. Yick Wo v. Hopkins, 
118 U.S. 355 (1886). "However wide the discretion of School 
Boards, it cannot be exercised so as to arbitrarily deprive 
persons of their Constitutional rights." Johnson; v.' Branch,

I
364 F.2d 177 (4th Cir. 1966). II

i



43.

Syvalius Walston, Jr., And 
Eula Y. Baker Were Fired For 
Impermissible Racial Reasons

Syvalius Walston, Jr., was dismissed by the school
district after nine years of successful teaching in
Nansemond for the stated reason that he received a mark of

12/"below average on his orincipal's evaluation in the area
13/

of "professional dedication" (A. pp. 481; 535-536).
The evidence demonstrates that ha was in fact dis­

missed because he brought to the attention of the principal 
matters involving racial inequities at his school during 
the first year of student desegregation in Nansemond (A. pp 
484-503; 1373-1379) .

He was reprimanded by hlis principal, David Fulton, 
because he asked in a faculty meeting whether a "Negro 
History Week" assembly would be allowed (A. p. 494.) . He wa 
"informed by the principal that at no time would race be an 
issue at this school" (A. p. 1373).

IV

12/ The evaluation sheets contain 14 areas to be rated, 
each with categories of outstanding, above average, 
average, below average, and unsatisfactory (See A. 
1005-1011). ' ^

13/ The manual defines "professional dedication— below 
average" as follows:

"Joins in or initiates criticism of the school and 
other personnel. Fails to defend school against 
criticism" (A. p. 1008).



44.

He was reprimanded by his principal for complaining 
about segregated seating assignments on school busses 
(A. pp. 487, 1373); although the practice was not halted 
until a month had elapsed (A. p. 487).

He was accused by the principal of being overly con­
cerned 'about the voiding of the school spelling bee contest 
after a black student was the apparent winner (A. pp. 4 88-
490) .

All these matters took place prior to April $, 1971, 
the date that Mr. Walston's principal recommended that he 
be reappointed for the 1971-72 school year (A. p. ,1015).

After being pressured by the superintendent's, remarks 
at a principals' meeting, Mr. Fulton, who was untenlred, 
decided to change his decision about reappointment and

I .recommended dismissal (A. p. 1016). I |
Although Mr. Walston requested and received a hearing

before the school board, Mr. Fulton, his principal!, did not
attend the hearing (A. p. 502). Mr. Fulton never Appeared

• i
before the school board to explain why Mr. Walston was not 
recommended for reappointment; moreover, the school board 
did not vote on the matter and did not render a decision 
(PX #7, pp. 12-13). Syvalius Walston, however, was not 
raemployed for the 1971-72 school year.

\



45.

Similarly, Eula Baker was not reemployed for the 
1971-72 school year, after having taught successfully in 
Nansemond since 1959. Because of her dismissal she lacks 
four months teaching credit needed for full retirement 
after 30 years (A. pp. 580-532).

As in the matter of Mr. Walston, Mrs. Baker's 
untenured principal, Fred Brown, changed his original recom­
mendation of reemployment after attending the principals' 
meeting and after being told by the assistant superintendent 
that Mrs. Baker was incompetent (A. pp. 573-575). Mr. Brown 
told Mrs. 3aker that "something had come up" and that he 
could not recommend reemployment.

Neither Mr. Brown nor Mrs. McGronan stated reasons
r

for terminating Mrs. Baker's employment at the school board 
hearing (A. p. 586). The school board took no vote and 
made no decision (PX #7, p. 25). Mrs. Baker was terminated.

The evidence conclusively demonstrates that both 
teachers were dismissed for impermissible racial reasons 
and that the school district acted arbitrarily and capri­
ciously in refusing to reemploy them. See Johnson v.
Branch, supra; Moore v. Board of Education of Chidester 
School District, 448 F.2d 709. (8th. Cir. 1971).

Mr. Walston was refused reemployment because he 
attempted to present to the principal, for correction,



46.

problems that occurred during the process of desegregating 
the schools in Nansemond County. No other reason can be 
found in this record to explain his dismissal. Federal 
Courts have long protected such clear expressions of First 
Amendment freedom. See Johnson v. Branch, supra. Moreover, 
the stated reasons for refusing to reemploy Syvalius Walston 
was "pretextual" and "discriminatory in its application" 
McDonnell Douglas Corp., supra at 4655.

The school board has put forth no reason why 
Mrs. Baker was dismissed other than to suggest that she 
was not good enough to teach white students. Such a reason 
can not stand in light of her long history of employment 
in the school district. See Moore, supra, at 714; Jackson 
v. Wheatley, supra, at 1363.



47.

CONCLUSION
The issues presented by this appeal are critically 

important to the black teachers of Nansemond County who 
were refused reemployment. For many of them, years of 
teaching at a level which was considered by the school 
board as "outstanding" have been ignored because of 
the board’s NTE policy. That aspect, however, repre­
sents only the tip of the iceberg.

The valuable lessons learned from the teacher 
discharge litigation which developed in response to 
desegregation efforts are instructive here. This record 
reveals evidence of a supremely ironic penalty imposed 
on those whose legacy has been to bear the brunt of the 
struggle for equal educational opportunity.

Unless the judgment below is reversed, thousands 
of black teachers will be victimized by an unfair device 
and the efficacy of the judicial process will be 

seriously challenged.
For these reasons, the judgment of the district 

court should be reversed and remanded with instructions
for reinstatement and appropriate injunctive .relief,

; j V .including back pay and reasonable attorneys fees.
Respectfully submitted,

July 2, 1973

JAMES W. BENTON 
Of Counsel for Appellants



s. W. TUCKER 
HENRY L. MARSH, III 
JAMES W. BENTON 
HILL, TUCKER & MARSH 

214 East Clay Street 
Richmond, Virginia

JAMES A . OVERTON
623 Effingham Street 
Portsmouth, Virgini.

JACK GREENBERG 
NORMAN CHACHKIN

10 Columbus Circle, 
New York, New York

Counsel for Appe

i

23219

a 23704

Suite 2030 
10019
Hants