Oliphant v. Brotherhood of Locomotive Firemen and Enginemen Petition for Rehearing

    Httitei States (Enurt of Appeals
F oe the  F ourth  Circuit

No. 11,019

I n  THE

A udrey G illis W all and T he N orth  Carolina 
T eachers A ssociation, a corp ora tion ,

Appellants,
— v .—

T he  S tan ly  C ounty  B oard of E ducation , 
a public b o d y  corp orate ,

Appellee.

APPEAL FROM TH E  U NITED STATES DISTRICT COURT FOR TH E 
MIDDLE DISTRICT OF N O RTH  CAROLINA

BRIEF FOR APPELLANTS

C onrad 0 .  P earson
2033/2 East Chapel Hill Street 
Durham, North Carolina 27702

J. L evonne Chambers
4053/2 East Trade Street 
Charlotte, North Carolina 28202

J ack Greenberg
J ames M. N abrit, III 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



I N D E X
PAGE

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

Statement of Facts ........................................................... 5

Questions Involved............................................................. 8

A rgum ent

Preliminary Statement .....................................................  9

I. The School Board’s Dismissal of Plaintiff Wall 
and Others of Her Class, in Attempting to De­
segregate Its System, With No Consideration 
or Comparison of Their Qualifications With
Other Teachers in the System, While Hiring- 
New White Teachers to Fill Positions in White 
Schools Constituted a Clear Denial of Due Proc­
ess and Equal Protection of Law, Entitling 
Them to Reinstatement and Damages ............... 12

II. Plaintiffs Are Entitled to An Order Enjoining 
Further Racial Employment, Assignment and 
Dismissal of Teachers and School Personnel .... 17

C onclusion  .....................................................................................  19

T able of Cases

Bradley v. School Board of City of Richmond, 382 U.S.
103, reversing 345 F.2d 310 (4th Cir. 1965) ..............  12

Bradley v. School Board of City of Richmond, 345 F.2d
310 (4th Cir. 1965) .........................................................  18

Bradley v. School Board of City of Richmond, 317 F.2d
429 (4th Cir. 1963) .....................................................14,18

Brooks v. County School Board of Arlington County,
324 F.2d 303 (4th Cir. 1963) ...................

Brown v. Board of Education, 347 U.S. 483
18
5



11

Chambers v. Hendersonville City Board of Education,
364 F.2d 189 (4th Cir. 1966) .......................... 9,11,12,13,

14,16,17,18
Christmas v. Board of Education of Harford County,

231 F. Supp. 331 (D. Md. 1964) ................................11,16
Cramp v. Board of Public Instruction, 368 U.S. 278 .... 13

Franklin v. County School Board of Giles County, 360 
F.2d 325 (4th Cir. 1966), reversing 242 F. Supp. 371
(W.D. Va. 1965) .................................................... 9,11,12,

13,14,15,16

Green v. School Board of City of Roanoke, 304 F.2d
118 (4th Cir. 1962) .........................................................  14

Greene v. McElroy, 360 U.S. 474 ....................................  16

Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966) .......13,14,
15,16

PAGE

Kier v. County School Board of Augusta County, 249 
F. Supp. 239 (W.D. Va. 1966) .................................. 12,17

Olson v. Board of Education of Union Free School 
District No. 12, 250 F. Supp. 1000 (E.D. N.Y. 1966).. 18

Rackley v. School District Number 5, Orangeburg
County, ------  F. ------  (Civil No. 8458, D. S.C.
1966) .............................................................................. 13,16

Schware v. Board of Bar Examiners, 353 U.S. 232 .....13,14
Service v. Dulles, 354 U.S. 365 ........................................ 16
Singleton v. Jackson Municipal Separate School Dis­

trict, 355 F.2d 865 (5th Cir. 1966) ............................ 12,17
Slochower v. Board of Education, 350 U.S. 51 ............. 13



Ill

Smith v. Board of Education of Morrilton School Dis­

PAGE

trict No. 32, 365 F.2d 770 (8th Cir. 1966) ...........11,12,14
Smith v. Hampton Training School for Nurses, 360 

F.2d 577 (4th Cir. 1966) .............................................  16

Torcaso v. Watkins, 367 U.S. 488 .................................... 13

Vitarelli v. Seaton, 359 U.S. 353 ...................................... 16

Wanner v. County School Board of Arlington County,
357 F.2d 452 (4th Cir. 1966) .......................................  18

Wheeler v. Durham City Board of Education, 363 F.2d
738 (4th Cir. 1966) ................................................ 12,17,18

Wickersham v. United States, 201 U.S. 392 ..................  16
Wieman v. Updegraff, 344 U.S. 183 ..............................  13

Statute :

N.C. Gen. Stat. §§ 115-58, 115-72 ...................................... 17

Other Authorities:

N.E.A. Convention, Speech by the President, July 2, 
1965, New Y ork ............................................................... 9

National Education Association, Washington, D. C., 
“Report of Task Force Appointed to Study the 
Problem of Displaced School Personnel Related to 
School Desegregation and the Employment Studies 
of Recently Prepared Negro College Graduates Cer­
tified to Teach in 17 States,” December 1965 .........10,11

Ozman, “ The Plight of the Negro Teacher,” The Amer­
ican School Board Journal, September 1965 ........... 10

U. S. Department of Health, Education, and Welfare, 
Revised Statement of Policies for School Desegrega­
tion Plans under Title VI of Civil Rights Act of 
1964 ...................................................................... 9,12,14,17



I n  the

luttrii States (Court of Apprala
F or the  F ourth  C ircuit

No. 11,019

A udrey G illis W all and T he N orth  Carolina 
T eachers A ssociation, a corp oration ,

Appellants,
—v.—

T he S tan ly  C ounty  B oard of E ducation , 
a public body corporate,

Appellee.

APPEAL FROM TH E  U NITED STATES DISTRICT COURT FOR TH E  
MIDDLE DISTRICT OF N O RTH  CAROLINA

BRIEF FOR APPELLANTS

Statement of the Case

This appeal is from a final judgment (94a) (------  F.
Supp. ------ ) of the United States District Court for the
Middle District of North Carolina, Salisbury Division, dis­
missing plaintiffs’ complaint and denying injunctive relief 
to plaintiffs and members of their class who were dismissed 
or denied reemployment as teachers for the 1965-66 and 
subsequent school years following the transfer of Negro 
pupils from all-Negro schools to formerly all-white schools 
in the Stanly County School System.

This action, seeking a preliminary and permanent injunc­
tion against the racially discriminatory policies and prac­
tices of the Stanly County Board of Education in hiring,



2

assigning and dismissing teachers and professional school 
personnel, was filed on August 11, 1965, by a Negro school 
teacher and the North Carolina Teachers Association, a 
professional organization, consisting principally of Negro 
teachers and professional school personnel. The plaintiffs 
alleged (la-6a) that the School Board had in the past and 
was presently hiring, assigning and dismissing teachers and 
school personnel solely on the basis of race and color, with 
Negro teachers assigned solely to Negro schools, and white 
teachers assigned to white schools; that pursuant to the 
Civil Rights Act of 1964, the defendant adopted a plan, 
effective with the beginning of the 1965-66 school year, for 
the assignment of pupils which permitted students to indi­
cate the school they desired to attend; that pursuant to this 
plan, approximately 100 Negro pupils requested reassign­
ment from all-Negro to previously all-white schools; that 
pursuant to the School Board’s policy of making racial 
assignments of teachers and school personnel, the School 
Board dismissed the individual plaintiff and others of her 
class, solely on the basis of their race and color, in an­
ticipation of the decrease in enrollment at the Negro 
schools; that the School Board hired new white teachers 
and school personnel to fill positions in the formerly all- 
white schools and refused to consider the individual plain­
tiff and others of her class solely because of their race 
and color. The plaintiffs prayed that the Court enjoin the 
School Board and those acting in concert with it from 
employing, assigning and dismissing teachers and other 
professional personnel on the basis of race and color (6a) 
and for reinstatement of the individual plaintiff in the 
same or comparable position (40a-41a).

The School Board filed an answer on or about Septem­
ber 3, 1965, denying the material allegations of the com­
plaint and moving the Court to dismiss and for summary



B

judgment (8a-30a). Plaintiffs’ response to the motion to 
dismiss and for summary judgment was filed on October 
15, 1965 (31a-34a). The motions of plaintiffs for pre­
liminary injunction and of defendant to dismiss and for 
summary judgment were heard on October 20, 1965 and 
denied without prejudice on November 9, 1965 (39a). 
Initial and final pretrial conferences were held on October 
20, 1965 (35a) and February 2, 1966 (42a-50a), respec­
tively.

The cause came on for hearing on April 27, 1966 at which 
time plaintiffs intrduced several exhibits, consisting of 
answers to interrogatories, depositions of Luther Adams, 
Robert McLendon, G. L. Hines, Reece B. McSwain, and 
Audrey Gillis Wall; teacher allotments, directory, minutes 
of Board meetings, proposed policy changes of the defen­
dant Board; letters of Luther Adams and Robert Mc­
Lendon; form contract for instructional services; and the 
oral testimony of Luther Adams and plaintiff Wall. The 
case was continued until the following day at which time 
plaintiffs introduced the oral testimony of E. Edmund 
Reutter. The defendant offered no evidence.

On September 15, 1966, the District Court filed its Find­
ings of Fact, Conclusions of Law and Opinion, finding that 
Negro teachers and principals through the 1964-65 school 
year had been assigned to Negro schools and white teachers 
and principals to white schools (56a); that there was no 
change in the racial composition of teachers and staff for 
the 1965-66 school year with the exception of one Negro 
teacher hired at a predominantly white school in January 
1966 (62a); that pursuant to the freedom of choice plan 
instituted by the defendant for the 1965-66 school year ap­
proximately 300 Negro pupils transferred to formerly all- 
white schools resulting in a reduction in allotment of 
teachers at Negro schools and an increased allotment of



4

teachers at white schools (58a, 60a); that the Board 
adopted no specific provisions to govern assignment of 
teachers for the 1965-66 school year who might he affected 
by the shifting of pupil enrollment and did not advise the 
principals that teachers of a different race might be em­
ployed at their respective schools (60a); that although 
plaintiff Wall had initially been recommended and ap­
proved for employment for the 1965-66 school year she 
was denied employment following the reduction in allot­
ment of teachers at her school because of her temperament 
and attitude (64a-65a); that no objective comparison was 
made of her qualifications or the severity of her alleged 
faults with those of other teachers in the system; that the 
practice and procedure followed by the defendant fell short 
of the generally accepted practice (61a-62a, 66a).

On the basis of these findings the Court concluded that 
neither the individual plaintiff nor members of the class 
were denied due process of law although deefndant’s prac­
tice varied from the generally accepted norm (76a, 78a); 
that plaintiff Wall was not denied equal protection of the 
laws although there was no objective comparison between 
the plaintiff and other teachers in the school system (84a) 
and although it was clear that the plaintiff would have 
been employed had there been no reduction in teacher allot­
ment at the Negro school (82a); and that plaintiffs were 
not entitled to general injunctive relief reasoning that the 
plan adopted by the defendant on April 15,1966 (216a-232a) 
was not constitutionally objectionable. The Court thus 
denied all relief and dismissed the complaint (94a).

From this judgment, the plaintiffs, on September 26, 
1966, filed this appeal (517a).



5

Statement of Facts

Despite the ruling of the Supreme Court in Brown v. 
Board of Education, 347 U.S. in 1954, the seventeen schools 
in the Stanly County School System (101a) were op­
erated on a completely segregated basis until two Negro 
pupils requested reassignment for the 1964-65 school year 
to the all-white North Stanly High School (293a, 351a, 55a- 
56a). Negro students and teachers were assigned to three 
all-Negro Schools—South Oakboro, Lakeview and West 
Badin (101a, 294a, 351a). White students and teachers 
were assigned to the remaining fourteen all-white schools. 
Negro students completing elementary school at South Oak­
boro and Lakeview were, and still are except upon request 
for reassignment to another school (301a-302a), trans­
ferred to the all-Negro Kingville High School in another 
school district, a practice long condemned by the Supreme 
Court and by this Court.

For the 1965-66 school year, the defendant, pursuant to 
the requirements of the Civil Rights Act of 1964, adopted 
a plan for the assignment of pupils which permitted them 
to indicate the school they desired to attend (299a, 352a, 
19a-30a). Pursuant to this plan approximately 300 Negro 
pupils requested reassignment to formerly all-white schools 
(99a, 180a). Because of the shift in the assignment of 
pupils there was a corresponding reduction in the allot­
ment of teachers at the Negro schools and an increased 
allotment of teachers in the white schools (60a, 101a, 161a- 
177a, 415a-421a). Plaintiff Wall, although initially favor­
ably recommended by her Principal and the Superintendent 
and approved for employment for the 1965-66 school year 
by the School Board (206a, 267a, 323a), was subsequently 
advised by her Principal that due to the reduction in the



6

allotment of teachers at her school she had “been selected 
as one of the three teachers, who will not receive a con­
tract at this time” (214a), with admittedly no comparison 
of her qualifications with other teachers in the system 
(314a, 458a, 66a, 82a).

Applicants for teaching positions in defendant’s School 
System have generally submitted applications to the var­
ious principals or to the Superintendent (365a, 381a, 403a- 
405a, 57a). Applications submitted to the Superintendent 
have been filed separately according to race, “ for the con­
venience of the principals,” since normally Negro princi­
pals “were not interested in white applicants,”  and white 
principals were not interested in Negro applicants (299a, 
302a, 57a). When positions became available, applicants 
were interviewed by the various principals or by the 
Superintendent and recommended to the School Board for 
employment (404a, 407a-408a). Teachers in the school sys­
tem were routinely re-employed, without the necessity of 
competing with new applicants, upon their indication of 
their desire to remain in the system (345a). The defen­
dant maintained no written standards or criteria for the 
employment, assignment and retention of teachers (409a).

At the close of the 1964-65 school year plaintiff Wall, 
who had taught in the Stanly County School System for 
thirteen years, expressed her desire to remain in the sys­
tem. She was accordingly recommended and approved for 
employment for the 1965-66 school year. Due to the trans­
fer of Negro students from her school to the formerly all- 
white Norwood School, the teacher allotment at her school 
was reduced by three (415a) and increased by two at the 
Norwood School (416a). No instruction was given to the 
principals as to the procedure to follow in case of loss of 
teachers, the Superintendent assuming that they would



7

take “ several things into consideration;” nor were the 
white principals advised that they could or should employ 
Negro teachers who might be affected by the reduction in 
the allotment of teachers at Negro Schools (314a, 60a). 
Plaintiff Wall was selected as one of several teachers to 
be displaced because of her alleged “negative attitude” 
which was explained as questioning the programs of her 
principal, failing to attend meetings, not following the 
rules of her school and being absent from school (242a- 
246a, 274a-278a). No comparison, however, was made of 
the plaintiff’s qualification or alleged faults with other 
teachers in the system (314a, 66a, 82a), and despite these 
alleged faults, she was nevertheless recommended for em­
ployment. Her Principal testified that this was because he 
“didn’t have any other applicants for the position” (284a), 
although he admitted having several such applications 
(283a, 286a, 455a). The Superintendent sought to explain 
his recommendation of the plaintiff on the ground that 
they feared hiring new teachers (452a), although approxi­
mately fifty new white teachers were hired for the 1965-66 
school year, many in positions the plaintiff was qualified 
to fill and could have filled were it not for defendant’s' 
racial policies (104a-131a, 181a-199a, 178a). The record 
is clear, as conceded by the District Court (82a), that had 
not the Negro students transferred to formerly all-white 
schools and had there been no reduction in the allotment 
of Negro teachers, the plaintiff would have been employed, 
her alleged faults notwithstanding.

On April 15, 1966, the School Board adopted a plan to 
govern employment and assignment of teachers and school 
personnel which generally adopts the pattern followed by 
the defendant in the past and further provides that staff 
and professional personnel will be employed and assigned 
without regard to race (216a-232a, 436a-437a, 504a).



8

The District Court, in dismissing the complaint, found 
the new plan constitutionally acceptable, and that the de­
fendant, in dismissing the plaintiff, did not act arbitrarily 
or capriciously and was not required to accord the plaintiff 
the same objective comparison and consideration which 
this Court and others have held that Negro teachers simi­
larly affected were entitled.

Questions Involved

1
Where a School Board, in attempting to desegregate its 

school system, reduces the number of teachers at its Negro 
schools and increases the number of teachers at its white 
schools because of the transfer of Negro students to the 
formerly all-white schools, may Negro teachers thereby af­
fected be denied objective comparison of their qualifications 
and equal consideration for employment with other teachers 
in the school system, Negro and white, in the School Board’s 
selection of the teachers to be displaced when new white 
teachers are hired to fill the positions in the formerly 
all-white schools?

2
Where, upon a showing of a long-established policy of 

racial employment, assignment and dismissal of teachers, 
a School Board, following the filing of suit and a few days 
before the case is heard, adopts a plan which provides 
generally that race will not be considered in the future 
but which nevertheless allows for such consideration, and 
no actual or material steps have been taken by the Board 
to implement its plan, are Negro teachers affected by the 
Board’s policies and practices entitled to injunctive relief?



9

ARGUMENT

Preliminary Statement

This Court, on two previous occasions, Chambers v. 
Hendersonville City Board of Education, 364 F.2d 189 
(4th Cir. 1966) and Franklin v. County School Board of 
Giles County, 360 F.2d 325 (4th Cir. 1966), reversing 242 
F. Supp. 371 (W. D. Va. 1965), has considered the startling- 
decimation of Negro teachers resulting from attempted 
desegregation of school systems. As Negro students ob­
tain transfers to formerly all-white schools and formerly 
all-Negro schools are closed or integrated, Negro teachers 
in increasingly large numbers have been summarily dis­
missed rather than transferred along with the Negro stu­
dents or employed and assigned without regard to race, 
thus prompting concern from the President of the United 
States,1 revised rules of the Department of Health, Edu­
cation and Welfare2 and the subject of intensive studies

1 Speech, N. E. A . Convention, July 2, 1965, New York. The President 
stated:

“For you and I  are both concerned about the problem of the dis­
missal of Negro teachers as we move forward— as we move forward 
with the desegregation of the schools of America. I applaud the 
action that you have already taken.”

“For my part, I  have directed the Commissioner of Education to 
pay very special attention in reviewing the desegregation plans, to 
guard against any pattern of teacher dismissal based on race or 
national origin.”

2 U. S. Department of Health, Education, and Welfare, Revised State­
ment of Policies for School Desegregation Plans Under Title Y I  of the 
Civil Rights Act of 1964 [hereinafter referred to as Revised Rules] :

Section 181.13(a) Desegregation of Staff. The racial composition 
of the professional staff of a school system, and of the schools in 
the system, must be considered in determining whether students are 
subjected to discrimination in educational programs. Each school 
system is responsible for correcting the effects of all past discrim­



10

by national groups.3

Here, the School Board, following the transfer of ap­
proximately 300 Negro students from formerly all-Negro 
to formerly all-white schools, reduced the teacher allot­
ment at the Negro schools with no advice to the Negro or 
white principals of the procedure to follow in selecting the 
teachers to be displaced. No comparison was made of the 
teachers in the system. No consideration was given the 
Negro teachers affected for positions in the formerly all- 
white schools. Their jobs had simply gone out of existence 
and new white teachers were hired to fill the positions in 
the white schools (104a-131a, 181a-199a, 178a).

inatory practices in the assignment of teachers and other professional 
staff.

Section 181.13(h) New Assignments. Race, color, or national origin 
may not be a factor in the hiring or assignment to schools or within 
schools of teachers and other professional staff, including student 
teachers and staff serving two or more schools, except to correct the 
effects of past discriminatory assignments.

Section 181.13(c) Dismissals. Teachers and other professional 
staff may not be dismissed, demoted, or passed over for retention, 
promotion, or rehiring, on the ground of race, color, or national 
origin. In any instance where one or more teachers or other pro­
fessional staff members are to be displaced as a result of desegre­
gation, no staff vacancy in the school system may be filled through 
recruitment from outside the system unless the school officials can 
show that no such displaced staff member is qualified to fill the 
vacancy. I f  as a result of desegregation, there is to be a reduction 
in the total professional staff of the school system, the qualifications 
of all staff members in the system must be evaluated in selecting the 
staff members to be released.

3 See National Education Association, Washington, D. C., “Report of 
Task Force Appointed to Study the Problem of Displaced School Per­
sonnel Related to School Desegregation and the Employment Studies of 
Recently Prepared Negro College Graduates Certified to Teach in 17 
States, December 1965 [hereinafter referred to as N. E. A . R eport]; 
Ozman, “ The Plight of the Negro Teacher,”  The American School Board 
Journal, pp. 13-14, September, 1965.



11

This pattern follows that found by NEA Study to be 
taking place all over the South:4

“ Concern with faculty integration is becoming acute 
because of current practices. Typically, whenever 
twenty or twenty-five Negro pupils are transferred 
from a segregated school, the Negro teacher left with­
out a class is in many cases dismissed rather than 
being transferred to another school with a vacancy. 
• • •

“As has been demonstrated, ‘white schools’ are 
viewed as having no place for Negro teachers. As a 
result when Negro pupils in any number transfer out 
of Negro schools, Negro teachers become surplus and 
lose their jobs. It matters not whether they are as 
well qualified as, or even better qualified than, other 
teachers in the school system who are retained. Nor 
does it matter whether they have more seniority. They 
were never employed as teachers for the school sys­
tem—as the law would maintain—but rather as teach­
ers for Negro schools.”

The deprivation of constitutional rights threatened by 
such dismissals have been carefully reviewed by this Court 
and in each instance the burden has been placed upon 
school authorities to show by clear and convincing evi­
dence that their conduct was consistent with due process 
and equal protection of the law. Franklin v. County School 
Board of Giles County, supra; Chambers v. Hendersonville 
City Board of Education, supra; see also Smith v. Board 
of Education of Morrilton School District No. 32, 365 F.2d 
770 (8th Cir. 1966); Christmas v. Board of Education of 
Harford County, 231 F. Supp. 331 (D. Md. 1964). Viewed 
in light of the principles established in the above cases,

4 N. E. A . Report, p. 13.



12

the instant case clearly establishes that the School Board’s 
practices and conduct were inconsistent with plaintiffs’ 
rights under the Constitution and that the District Court 
erred in refusing’ to grant plaintiffs injunctive relief as 
prayed.

I
The School Board’s Dismissal of Plaintiff Wall and 

Others of Her Class, in Attempting to Desegregate Its 
System, With No Consideration or Comparison of Their 
Qualifications With Other Teachers in the System, 
While Hiring New White Teachers to Fill Positions in 
White Schools Constituted a Clear Denial of Due Proc­
ess and Equal Protection of Law, Entitling Them to 
Reinstatement and Damages.

It is clear that the Fourteenth Amendment forbids dis­
crimination on the basis of race by a public school system 
with respect to the employment, assignment and retention 
of teachers and other school personnel. Chambers v. Hen­
dersonville City Board of Education, supra; Franklin v. 
County School Board of Giles County, supra; Wheeler v. 
Durham City Board of Education, 363 F.2d 738 (4th Cir. 
1966); Smith v. Board of Education of Morrilton School 
District No. 32, supra; Bradley v. School Board of the 
City of Richmond, 382 U.S. 103, reversing 345 F.2d 310 
(4th Cir. 1965); Singleton v. Jackson Municipal Separate 
School District, 355 F.2d 865 (5th Cir. 1966) ; Kier v. 
County School Board of Augusta County, 249 F. Supp. 239 
(W. D. Va. 1966); Revised Rules, Section 181.13(c). It is 
equally clear that the Fourteenth Amendment forbids de­
nial by a school board or other public agency of employ­
ment to teachers and other public servants on some frivo­
lous, arbitrary or other ground which fails to accord due



13

process. Cramp v. Board of Public Instruction, 368 U.S. 
278; Torcaso v. Watkins, 367 U.S. 488, 495-96; Schware v. 
Board of Bar Examiners, 353 U.S. 232; Slochoiver v. Board 
of Education, 350 U.S. 51; Wieman v. Updegraff, 344 U.S. 
183; Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966); 
Rackley v. School District Number 5, Orangeburg County, 
------  F. Supp. ------  (Civil No. 8458, D. S. C., 1966). De­
fendant’s practices here in dismissing plaintiff Wall and 
Negro teachers of her class were violative of their rights 
to due process and equal protection of the law.

A. In an homogeneous school system, where teachers 
are and may be assigned among the various schools de­
pending on needs of the system, as the Superintendent 
testified his school system to be (430a-431a, 435a, 459a), 
it is patently violative of the rights of Negro teachers to 
limit their consideration for employment to the Negro 
schools. Chambers v. Hendersonville City Board of Edu­
cation, supra; Franklin v. County School Board of Giles 
County, supra. Following the reduction in the allotment 
of teachers at the Negro schools, Negro teachers were 
displaced with no comparison whatever of their qualifica­
tions with other teachers in the school system. Moreover, 
there was here not even the semblance of evaluating “their 
right to continue employment in terms of the vacancies 
then existing in the other schools in the system.” Franklin 
v. County School Board of Giles County, 242 F. Supp. 371, 
374 (W. D. Va. 1965), reversed, 360 F.2d 325 (4th Cir. 
1965). Approximately 50 new white teachers were hired 
to fill the positions in the white schools which the Negro 
teachers were qualified to fill. In view of the practice fol­
lowed by the defendant, with Negro and white teachers 
being assigned to separate schools on the basis of race, 
the defendant’s failure to fairly and objective appraise 
the Negro teachers for all positions for which they were 
qualified permits no conclusion other than they were “dis­



14

charged because of their race.” Franklin v. County School 
Board of Giles County, supra; Chambers v. Hendersonville 
City Board of Education, supra; Smith v. Board of Edu­
cation of Morrilton School District No. 32, supra. See 
also Revised Rules, Section 181.13(c). In addition, such 
appraisals were to be fairly, objectively and equally ap­
plied throughout the system to Negro and white staff 
members. Schware v. Board of Bar Examiners, supra; 
Johnson v. Branch, supra; Bradley v. School Board of the 
City of Richmond, 317 F.2d 429 (4th Cir. 1963); Green v. 
School Board of City of Roanoke, 304 F.2d 118 (4th Cir. 
1962). Had that been done here, the evidence clearly 
shows that plaintiff Wall and others of her class possessed 
far superior qualifications to many of the white teachers 
retained or newly hired in positions the plaintiff and mem­
bers of her class were qualified to fill.5

As a basis for the dismissal of plaintiff Wall, defen­
dant has asserted her alleged “negative attitude.” The 
District Court found this sufficient to deny to her the con­
stitutional rights to fair and objective consideration and 
comparison with other teachers in the school system (84a). 
These alleged faults, however, were considered material 
by the defendant only after it became necessary to reduce 
the Negro teachers at the plaintiff’s school and after her 
principal and the Superintendent had favorably recom­
mended her and the defendant had approved her employ­
ment for the 1965-66 school year. Moreover, with no com­
parison of the plaintiff’ s qualifications and of her alleged 
faults, no fair and objective determination could be made 
by the defendant as is clearly required by the teachings 
of this Court. Chambers v. Hendersonville City Board of

5 See 118a-131a, where many teachers held Emergency B, Primary B 
or no Certificates at all. Plaintiff W all had a Grammar Graduate Cer­
tificate, with 13 years experience in the Stanly County School System.



15

Education, supra; Johnson v. Branch, supra; Franklin v. 
County School Board of Giles County, supra, and see par­
ticularly Note 3, requiring that the Board objectively dem­
onstrate that it would not have retained the teacher in­
volved “under any circumstances.” As the District Court 
here found, had there been no transfer of Negro students 
to the white schools, and had there been no reduction in 
the allotment of teachers at her school, plaintiff Wall 
“would have been re-employed for the school year 1965-66” 
(82a). Clearly, therefore, the asserted basis here for not 
retaining plaintiff is to be given no weight. It could not 
properly be a sufficient basis where, as here, the defendant 
has failed to consider her for other positions in the sys­
tem and to fairly, objectively and without discrimination 
appraise her qualifications with “ all staff members in the 
s y s t e m Otherwise, the constitutional principles clearly 
established in the above cited cases would become sterile 
pronouncements without meaning or force. Johnson v. 
Branch, supra.

The evidence here further shows that Frederick Wel- 
borne was denied objective and fair comparison with other 
teachers in the system prior to the determination to deny 
him employment (235a-237a, 241a-242a, 246a-247a). He 
too had been recommended for employment and his em­
ployment approved for the 1965-66 school year (211a). 
He too was to be dismissed following the reduction in the 
allotment of teachers at his school. It is true that he 
obtained other employment fearing the loss of Negro 
teachers in the system (280a). The District Court did not 
consider it material that no objective appraisal was made 
since Welborne had obtained employment elsewhere (85a), 
but the failure initially to fairly and objectively consider 
him for any position in the system without regard to race 
further corroborates defendant’s racially discriminatory



16

practices with respect to plaintiff and others of her class. 
Franklin v. County School Board of Giles County, supra; 
Chambers v. Hendersonville City Board of Education, 
supra; Christmas v. Board of Education of Harford 
County, supra.

B. Plaintiff Wall is entitled to an order requiring her 
reinstatement and a determination of her damages. Cham­
bers v. Hendersonville City Board of Education, supra; 
Johnson v. Branch, supra; Franklin v. County School Board 
of Giles County, supra; Smith v. Hampton Training School 
for Nurses, 360 F.2d 577 (4th Cir. 1966); Rackley v. School 
District Number 5, Orangeburg County, supra. The evi­
dence here clearly establishes that the plaintiff was dis­
missed in a manner inconsistent with her rights to due 
process and equal protection of the law. She is thus en­
titled to an effective remedy as established by this Court 
in the above cases. See also Service v. Dulles, 354 U.S. 
365; Vitarelli v. Seaton, 359 U.S. 353; Greene v. McElroy, 
360 U.S. 474, 491-92; Wickersham v. United States, 201 
U.S. 392.



17

II

Plaintiffs Are Entitled to An Order Enjoining Fur­
ther Racial Employment, Assignment and Dismissal of 
Teachers and School Personnel.

The responsibility for eliminating past racial assign­
ments of teachers and school personnel and instituting an 
effective plan and practice of non-racial employment is 
that of the defendant Board. Chambers v. Hendersonville 
City Board of Education, supra; Wheeler v. Durham City 
Board of Education, supra; Singleton v. Jackson Municipal 
Separate School District, 355 F.2d 865 (5th Cir. 1966); 
Kier v. County School Board of Augusta County, supra; 
Revised Rules, Section 181.13.6 Defendant’s long-estab­
lished practice of racial employment and assignment of 
teachers is clear (433a, 56a, 62a). All Negro teachers and 
school personnel have been assigned to Negro schools and 
all white teachers and school personnel assigned to white 
schools. In January 1966, defendant employed one Negro 
teacher at North Stanly, a formerly all-white school. In 
April 1966, the defendant adopted a plan which contained 
a provision that staff and professional personnel shall be 
employed and assigned to and within schools without re­
gard to race, color or national origin (219a). The plan 
further provided that teachers were to indicate whether 
they would teach in an all-white, all-Negro or integrated 
school (255a) and the Superintendent testified that he 
would honor such indications (437a-441a). No other steps 
had been taken by the Board or planned (444a) to correct 
or eliminate the Board’s racial policies. The District Court 
denied injunctive relief reasoning that the plan was a

6 See also N. C. Gen. Stat. §$115-58, 115-59, 115-72, expressly placing 
the responsibility for the employment and assignment of teachers upon 
school boards.



18

sufficient corrective.7 The District Court, however, clearly 
erred. In view of the long history of racially discrimina­
tory practices by the Board, still in the process of attempt­
ing to desegregate, and with no more showing by the 
Board that one Negro teacher had been assigned to a 
formerly all-white school, injunctive relief as prayed by 
the plaintiffs should have been granted. Brooks v. County 
School Board of Arlington County, 324 F.2d 303 (4th Cir. 
1963); Bradley v. School Board of the City of Richmond, 
317 F.2d 429 (1963). See particularly Chambers v. Hen­
dersonville City Board of Education, supra, where the 
School Board had advanced much further in integrating 
its staff and this Court nevertheless held that the plaintiffs 
as a class were entitled to injunctive relief and that the 
Court should retain jurisdiction “until the transition to a 
desegregated faculty is completed.” Id. at 193.

7 The District Court further held that such considerations were not 
per se impermissible, citing Wanner v. County School Board of Arlington 
County, 357 F.2d 452 (4th Cir. 1966) and Olson v. Board of Education 
of Union Free School District No. 12, 250 F . Supp. 1000 (E . D. N. Y . 
1966), and reasoning further that the constitution does not forbid volun­
tary associations, citing Bradley v. School Board of the City of Richmond, 
345 F.2d at 316. This, reasoning, however, ignores the necessity for in­
junctive relief. In both Wanner and Olson the School Board had adopted 
affirmative policies to promote integration. The Court simply held that 
race in such instances were permissible consideration. Certainly, here the 
School Board advances no contention that its purpose is to promote inte­
gration but rather the opposite as is clearly established by the record. 
Moreover, the District Court’s reliance on Bradley not only permits but 
encourages the very practice reproved by this Court in Wheeler V. 
Durham City Board of Education, supra, the perpetuation of racial em­
ployment and assignment practices by school boards. Certainly, where 
teachers are involved as plaintiffs who are adversely affected are entitled 
to injunctive relief. Chambers v. Hendersonville City Board of Education, 
supra.



19

CONCLUSION

Plaintiffs respectfully pray that this Court reverse the 
holding of the District Court and remand the case with 
instructions requiring both the reinstatement of plaintiff 
Wall and the determination of her damages resulting from 
her wrongful discharge and the issuance of an injunction 
restraining the defendant from further consideration of 
race or color in the employment, assignment and dismissal 
of teachers and professional personnel. The plaintiffs fur­
ther pray that if a reduction in teacher force in defendant’s 
system is required, that defendant be ordered to apply the 
same standards or criteria to all teachers and applicants, 
and after such appraisal, should the plaintiff or any mem­
ber of her class be refused employment, the defendant be 
required to establish by clear and convincing evidence that 
those denied employment were accorded due process and 
equal protection of the law.

Respectfully submitted,

Conrad 0 .  P earson
203% East Chapel Hill Street 
Durham, North Carolina 27702

J. L evonne C hambers
405% East Trade Street 
Charlotte, North Carolina 28202

J ack Greenberg
J ames M. N abrit, III 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



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