Memo from Lani Guinier to Greenberg, Nabrit, and others

    In  t h e

llttttpft Gkwrt rtf Appeals
F oe t h e  F if t h  C ik c u it

No. 21438

N oelle  M . H e n r y ,

-v-
Appellant,

C oahoma  C o u n ty  B oard op E d u c a tio n , et al.,
Appellees.

a ppea l  prom  t h e  u n it e d  states d istrict  court por  t h e  
n o r t h e r n  DISTRICT op MISSISSIPPI

BRIEF FOR APPELLANT

R . J ess B row n

125% North Farish Street 
Jackson, Mississippi

J ack  Green berg  
C o n sta n ce  B aker  M otley  
D e r r ic k  A. B e l l , J r .

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant



I N D E X
PAGE

Statement of the Case .................................................. 1
Appellant’s NAACP Affiliation and Contract 

Crisis .................................................................... 1
1. School Petition Crisis ................................ 2
2. Membership Affidavit Crisis—1956 ..........  2

3. Membership Affidavit Crisis—1961 ..........  3
4. Crisis of 1962—Refusal of Contract ......  3

Appellant’s Efforts to Learn Reason for Board’s 
Action ............... - ................................................  4

1. Conference with Superintendent .............. 4
2. June 30th Letter to B oard........ ................ 4
3. August 31st Letter to B oard..................... 5

Filing of the Suit .................................................. 5
The Trial and Appellees’ Defense ...................    6
Motion to Conform the Pleadings to the Evidence 8 
The District Court’s Findings ................................  9

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

A r g u m e n t

Preliminary Statement ..........................................  11
I. The Court Erred (a) in Failing to Hold 

That the Reasons for Which Appellees State 
They Refused to Employ Appellant Were 
Unconstitutional Conditions on Appellant’s 
Employment and (b) in Refusing to Allow 
Appellant to Amend Her Complaint to Con­
form to the Evidence at Trial ....................... 15



11

II. The Record Shows Appellant Was Dismissed 
Because of Her Own and Her Husband’s Civil 
Rights Activities ....................... -...................  21

III. The Supreme Court’s Decision in Shelton v. 
Tucker Entitles Appellant to a Ruling En­
joining Appellees From Applying Missis­
sippi’s Teacher Affidavit L aw ........................  27

IY. The Court Erred in Holding That It Did Not 
Have the Power to Order the Making of a 
Contract as Relief to Appellant................... - 31

Conclusion...... ............................................................... 32

Table oe Cases

Adler v. Board of Education, 342 H. S. 485 (1952) ----- 13
Aelony v. Pace (M. D. Ga., Nov. 1, 1963, 32 L. W. 2215) 13
Alston v. School Board of the City of Norfolk, 112 F.

2d 992 (4th Cir. 1940) ....... ....................... -.......---16, 29
Anderson v. City of Albany,----- F. Supp. —— (M. D.

Ga., Aug. 19, 1964) — ..... .......... -.......—-.......-..........  13
Avery v. Georgia, 345 U. S. 559 (1953) ...... ................ 23

Bailey v. Patterson, 323 F. 2d 201 (5th Cir. 1963) ......  25
Bates v. Little Rock, 361 U. S. 516 (1960) ................... 12
Besser Mfg. Co. v. U. S., 343 IJ. S. 444 (1952) ..........  31
Brown v. Owen, 75 Miss. 319, 23 So. 35 (1898) ........... 31
Bryan v. Austin, 148 F. Supp. 563 (E. D. S. C. 1957) ....16, 30

Congress of Racial Equality v. Clemmons, 323 F. 2d
54 (5th Cir. 1963) _____ _____ __ ~..........................  13

CORE v. Douglas, 318 F. 2d 95 (5th Cir. 1963) ..........  13

PAGE



Ill

Cox v. Irvine, 108 So. 736 (1926) ..... ................ ...........  32
Cramp v. Board of Public Instruction, 368 U. S. 278

(1961) ................................. .......................................  15
Crandall v. Nevada, 6 Wall. 36,18 L. ed. 745 .................  18

Daniel Lumber Co. v. Empresas Hondurenas, 215 F. 2d
465 (5th Cir. 1954) .............................. .......... ..........  20

Dixon v. Alabama State Board of Education, 294 F. 2d 
150 (5th Cir. 1961) ...................... .............................. 13

Eubanks v. Louisiana, 356 IT. S. 584 (1958) .............. 23,26
Evers v. Dwyer, 358 U. S. 202 (1958) .... .......... ..........  29
Evers v. Jackson Municipal Separate School District,

328 F. 2d 408 (5th Cir. 1964) ____________ _____ 12, 25

Frost Trucking Co. v. Railroad Commission, 271 U. S.
583 (1926) _______________ ____ ____ ____ _____  16

Gibson v. Florida Legislative Investigation Committee,
372 IT. S. 539 (1963) ....... .................... .......................  12

Hall v. National Supply Co., 270 F. 2d 369 (5th Cir.
1959) .......... ................................... ...... .................  20

Henry v. Collins, 158 So. 2d 28 (1963) ...... .................. . 7
Henry v. Pearson, 158 So. 2d 695 (1963) ....... .......... . 7
Henry v. State of Mississippi, 154 So. 2d 289 (1963) ....7,18

In Re Summers, 325 IT. S. 561 (1945) ............................  16

Kelly v. Page, 335 F. 2d 114 (5th Cir. 1964) __ ____ 13

Lombard v. Louisiana, 373 IT. S. 267 (1963)  ............. 25
Lott v. State, 239 Miss. 97, 121 So. 2d 402 (1960) ...... 8
Louisiana v. NAACP, 366 U. S. 293 (1960) ______ _ 12

PAGE



IV

Maryland Casualty Co. v. G-erlaske, 68 F. 2d 497 (5th
Cir. 1934) ......... ........ ........... .......... ................ .......... 21

Meredith v. Fair, 298 F. 2d 696; 305 F. 2d 343 (5th
Cir. 1962) .... ........... .............. .......... ........12,21,25,26,27

Meyer v. Nebraska, 262 U. S. 390 (1923) ....... ........... . 17

NA A CP v. Alabama, 357 TJ. S. 449 (1958) ...................  12
N A A CP v. Alabama, 377 U. S. 288 (1964) ______    12
NAACP v. Alabama ex rel. Patterson, 360 IT. S. 240

(1959) .................... ......... ..... ........... ........................... 12
NAACP v. Button, 371 TJ. S. 415 (1963) ........   12
NAACP v. Gallion, 368 TJ. S. 16 (1961) _____    12
NAACP v. Williams, 359 TJ. S. 550 (1959) ____  12
Norris v. Alabama, 294 TJ. S. 587 (1935) __________  23

Pearl Assurance Co. Ltd. v. First Liberty National
Bank, 140 F. 2d 200 (5th Cir. 1944) ________ ___  20

Peterson v. City of Greenville, 373 TJ. S. 244 (1963) .... 25

Reece v. Georgia, 350 TJ. S. 85 (1955) ....... ................ 23
Robinson v. Florida, 378 U. S. 153 (1964) ................ ....25,26

PAGE

Schware v. Board of Bar Examiners, 353 TJ. S. 232
(1957) .......... - ................. ............. .............. -..............  16

Shelton v. McKinley, 174 F. Supp. 351 (E. D. Ark.
1959) ...... .............. ............ ........................... -............  21

Shelton v. Tucker, 364 TJ. S. 479 (1960) ...... ............ 12,14,
26, 27, 28

Skinner v. Oklahoma, 316 TJ. S. 535 (1942) ------ ------  17
Slaughter House Cases, 16 Wall. 36, 21 L. ed. 394 ......  18
Slochower v. Board of Higher Education, 350 TJ. S. 551 

(1956) ...................- _____ ____ ___________ ___ 14,16
State ex rel. Baria v. Alexander, 158 Miss. 557, 130 

So. 754 (1930) .............. ..... ......................................... 3 2



V

State ex rel. Cowan v. Morgan, 141 Miss. 585, 106 So.
820 (1926) ................................ ............. ...................  31

Terral v. Burke Construction Co., 257 U. S. 529 (1922) 16
Torcaso v. Watkins, 367 U. S. 488 (1961) ........... . 15

United Public Workers v. Mitchell, 330 U. S. 75 (1947) 16
United States v. Associated Press, 52 P. Supp. 362

(S. D. N. Y. 1943) ____________ ___ ___________ 31
United States v. Board of Education of Greene County,

Mississippi, 332 F. 2d 40 (5th Cir. 1964) ........... ...... 22
United States v. City of Jackson, 318 F. 2d 1 (5th

Cir. 1963) .............................. .......... ........... .......... 12
United States ex rel. Goldsby v. Harpole, 263 F. 2d

71 (5th Cir. 1954) ........ .............. ................................ 12
United States v. Mississippi, 229 F. Supp. 925 (S. D.

Miss. 1964) .................................................... ............. 12
United States v. National Lead Co., 63 F. Supp. 513

(S. D. N. Y. 1945) ............................. ......................  31
United States v. U. S. Gypsum Co., 340 U. S. 76 (1950) 31
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961) 13

Vicksburg Lodge No. 26, et al. v. Grand Lodge of Free 
and Accepted Masons of Mississippi, 16 Miss. 214,
76 So. 572 (1917) _____ _________ ____________  19

Watson v. City of Memphis, 373 U. S. 526 (1963) ___  27
Watson v. Cannon Shoe Co., 165 F. 2d 311 (5th Cir.

1948) ....................... ................ ............................... 20
Wieman v. Updegraff, 344 U. S. 183 (1952) .... 13,14,15,16
Woods v. Wright, 324 F. 2d 369 (5th Cir. 1964) .......... 13

Zellner v. Lingo, 334 F. 2d 620 (5th Cir. 1964), affirming 
218 F. Supp. 513 (M. D. Ala. 1963) ........... .............  13

PAGE



VI

C o n st it u t io n a l  P rovisions and  S ta tu tes

42 U. S. C. §1981___________-..... ...................... -.......-  18
42 U. S. C. §1982 ---------- -------------------------- -------  18
42 U. S. C. §1985 ............ ..........-.................................-  18
Civil Eights Act of 1964, H. E. 7152, Title IV, §407 .... 12
Federal Buies of Civil Procedure, Rule 15(b) ----- ---8,19
Federal Eules of Civil Procedure, Rule 43(c) --------  8
Mississippi Constitution, Art. 8, §207 ............ -............ - U
Mississippi Constitution, Section 25 ----------—-..........  I8
Mississippi Code of 1942 Annot., §2056 ....................... - H
Mississippi Code of 1942 Annot., §3841.3 .............. - ....  U
Mississippi Code of 1942 Annot., §4065.3  ..... - .... -  U
Mississippi Code of 1942 Annot., §6220.5 ..............-...... H
Mississippi Code of 1942 Annot., §§6282-05, 07 --------- 7
Mississippi Code of 1942 Annot., §§6282-41-45 —..... 26, 27
Mississippi Code of 1942 Annot., §6328-03 ----------- —- H
Mississippi Code of 1942 Annot., §§9028-31-48 ....... ...... 11
Mississippi Code of 1942 Annot., §9028-35 ............... —- 12

O t h e r  A u t h o r it ie s

15 Am. Jur. 289-90 ................................. ............. -......— 17
16 Am. Jur. 10, 14 ....................... .................................  17
Brown, Loyalty and Security (Yale University Press,

New Haven, 1958) ...... ................................. ............ 18
Bureau of National Affairs, Inc. (BNA) 31:501-502,

GSL Newsletter, Oct. 1955, Government Security and 
Loyalty (Washington, D. C.) .........................-.........  18

PAGE



Vll

Lusky, Racial Discrimination and the Federal Law:
A Problem in Nullification, 63 Colum. L. Rev. 1163,
1178 (1963) ............... .................. ........................... . 31

Mississippi Advisory Committee to the United States 
Commission on Civil Rights, A Report on Mississippi 
(January, 1963) ....................... ........................ ........ 12

3 Moore, Federal Practice .............. .......... ...................  21
Silver, Mississippi: The Closed Society (Harcourt, 

Brace & World, Inc., New York 1963-64) ................. 29
Smith, Congressman from Mississippi (Pantheon 

Books, New York, 1964) ................... ......... .... ......... 29
United States Commission on Civil Rights Report,

Freedom to the Free (1963) ______ _____ _______  12

PAGE



I n  t h e

Im&ft (Emtrt nt Appeals
F oe t h e  F if t h  C ib c u it  

No. 21438

N oelle  M. H e n r y ,
Appellant,

—v.—

C oahom a  C o u n ty  B oard of E d u ca tio n , et al.,

Appellees.

a ppea l  from  t h e  u n it e d  states d istrict  court for  t h e

NORTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANT

Statement o f the Case

Appellant is a Negro teacher who, after serving excel­
lently (R. 91-92, 98, 109), in the Mississippi public school 
system for 16 years (1945 to 1962) was refused a teaching 
contract for the 1962-63 school year by appellee Board, 
her employer for the last eleven years (R. 53).

Appellant’s NAACP Affiliation and Contract Crisis

Appellant is the only one of approximately 200 teachers 
in the Coahoma County, Mississippi school system who ac­
knowledged current membership in the National Associa­
tion for the Advancement of Colored People (R. 114, 129).



2

She is also the wife of Dr. Aaron Henry, President of the 
N.A.A.C.P. in Mississippi (E. 72-73), whose activities 
have increased in the Coahoma County area during the 
last few years (E. 133, 165). These associations have 
placed her teaching job in jeopardy on at least four occa­
sions in recent years.

1. School Petition Crisis

Some time after the Supreme Court’s school desegrega­
tion decision, Negro citizens organized by appellant’s hus­
band, petitioned the Clarksdale School Board to desegre­
gate its schools (R. 73, 111). Word of the petition was 
communicated to various county officials including L. L. 
Bryson, then Superintendent of the Coahoma County 
Schools. He called Mrs. Lillian Johnson, then Supervisor 
of Coahoma County Negro Schools, and asked whether the 
husband of any teacher in her department had signed the 
Clarksdale petition. Appellant was one of three such 
teachers. When her application for contract renewal came 
before Mr. Bryson, along with those of the other two 
teachers whose husbands had signed, he undertook to re­
fuse to approve the applications. But Mrs. Johnson per­
suaded him not to. The contracts of the three teachers, 
including appellant’s, were signed that year (R. 111-12).

2. Membership Affidavit Crisis— 1956

In 1956 Mississippi enacted laws requiring teachers to 
list all organizations to which they then, and for the five 
years next preceding belonged, on an affidavit attached to 
applications for contract (Miss. Code Annot. 1942, §§6282- 
42-45). Appellant certified that she was and had been a 
member of the N.A.A.C.P. When appellant’s applica­
tion for contract renewal, with affidavit attached, came be­
fore the Superintendent and he was made aware, for the 
first time, of appellant’s membership in the N.A.A.C.P.,



3

lie again considered refusing her application, or, failing 
that, to include a stipulation in her contract so that appel­
lant could be discharged on two weeks notice. But Mrs. 
Johnson again dissuaded the Superintendent from this 
course of action, and appellant’s contract was signed for 
another year (It. 112-13).

3. Membership Affidavit Crisis— 1961

In 1960, Mr. Bryson was replaced by appellee, Paul 
Hunter, as Superintendent of Coahoma Schools. When Mr. 
Hunter took office, appellant’s N.A.A.C.P. membership 
was called to his attention (R. 133). Later, upon review­
ing applications for teacher contracts along with the ac­
companying affidavits, he exclaimed, “Oh, my goodness,” 
over appellant’s N.A.A.C.P. membership entry (R. 118). 
For a third time Lillian Johnson intervened and was suc­
cessful in persuading Superintendent Hunter not to create 
trouble for the school system by refusing a contract to a 
teacher as well regarded and competent as appellant (R. 
118). A short time later, Mrs. Johnson, after forty years 
of service, retired, and was replaced as Supervisor of 
Negro Schools by Mrs. Geraldine White (R. 114).

4. Crisis of 1962— Refusal of Contract

When the next contract renewal period arrived, appel­
lant’s principal, Mr. Ball, and her supervisor, Geraldine 
White made their recommendations according to county 
practice and appellant was highly recommended (R. 60, 98). 
Her application, with the recommendations of her imme­
diate superiors, was passed on to Superintendent Hunter 
(R. 99). Subsequently, Mr. Hunter instructed appellant’s 
Supervisor to inform her that the Board of Education had 
determined not to offer appellant a contract for 1962-63. 
He offered no explanation for the Board’s refusal (R. 98- 
99).



4

Appellant’s Efforts to Learn Reason for Board’s Action

After hearing of the refusal, appellant made three sepa­
rate efforts to learn why, after 11 years, she was not being 
rehired by the Board.

1. Conference With Superintendent

She approached Mr. Hunter to inquire about her con­
tract (R. 61-62). An application of a teacher recommended 
by her principal and supervisor was, ordinarily, never re­
fused (R. 103, 114-15), and three teachers in appellant’s 
school who were not recommended by the principal were 
rehired by the Board (R. 88). But Mr. Hunter told appel­
lant that he did not know why the Board had refused to 
renew her application. According to appellant’s uncon­
tradicted testimony, the Superintendent told her:

“Your contract just wasn’t renewed for 1962-63, and 
he said I don’t know why the board didn’t renew your 
contract; in going over the contracts when they got 
to your name they said we don’t choose to renew this 
one. They didn’t tell me why and I don’t know why” 
(R. 62).

2. June 30th Letter to Board

At the Superintendent’s suggestion that the Board might 
respond to a letter from appellant (R. 62), appellant on 
June 30,1962, in a letter to the Board, referred to her good 
record and asked: “ . . . I would like to know why my con­
tract was not renewed” (R. 65). The letter, which also re­
quested an early conference, was not answered directly by 
the Board. Instead, appellant received a telephone call from 
Superintendent Hunter reporting that the Board had re­
ceived her letter but concluded its action was final and a 
special conference would be “a waste of time” (R. 66).



5

3. August 31st Letter to Board

Appellant again wrote to the Superintendent on August 
31, 1962, inquiring why the Board decided not to renew her 
contract, and seeking his assistance in arranging a confer­
ence (R. 67-68). Superintendent Hunter replied on Sep­
tember 12, 1962, in his capacity as Board Secretary, that 
the terms of her contract were fulfilled and “there is no 
need for further negotiations” (R. 69).

Filing of the Suit

October 27, 1962, appellant filed this action in the United 
States District Court for the Northern District of Missis­
sippi (R. 1). Accompanying the complaint on the same date 
was a motion for preliminary injunction (R. 8).

Unable to obtain an authoritative reason from the Board 
as to why she was not rehired, appellant assumed and 
alleged in the Complaint that the Board, acting under color 
of Mississippi laws, had refused her a contract because of 
her “continuing activity and that of her husband in behalf 
of desegregation of the defendant Board’s schools and other 
public facilities” (R. 6). The Complaint also asserted the 
unconstitutionality of the the statutory requirement that an 
applicant-teacher list organizational affiliations (R. 2). The 
Motion for a Preliminary Injunction argued that appellant 
would be irreparably harmed were the appellees not imme­
diately enjoined from refusing appellant a contract for the 
1962-63 school year (R. 8-9).

Appellees’ Answer admitted refusing appellant a con­
tract although she had taught in their system for 11 years 
(R. 13), but denied that refusal was based on her civil 
rights activities and associations (R. 14). The Answer did 
not indicate why appellant was not rehired, but alleged that



6

“such act was in strict accordance with the laws of the 
State of Mississippi and of the United States of America” 
(E. 14).

The Trial and Appellees’ Defense

The case was heard on July 29, 1963 (R. 47). Following 
undisputed testimony from her supervisors that appellant 
was one of the finest teachers in the State (R. 91-92, 98, 
109), Superintendent Hunter reported that it was he who 
was the cause of appellant’s being refused a contract, and 
that he had not refused appellant a contract because of her 
NAACP membership and activities (R. 140, 162) but:

“Because of the activities that she and her husband were 
engaged were highly controversial” (R. 141).

He explained that he had learned from a newspaper that 
appellant’s husband had been convicted in a Justice of the 
Peace Court of a “morals” charge (R. 144). Subsequently, 
he was advised by local attorneys that appellant’s husband 
had been sued for libel by the Prosecutor and Chief of 
Police involved in his criminal case; and finally he had been 
told that appellant would be sued to undo an allegedly 
fraudulent conveyance made to her by her husband (R. 
142).

Mr. Hunter felt such activity would be a bad influence on 
children and other teachers (R. 141-42), and cited another 
situation in which a principal was not re-employed because 
the Negro school supervisors and Negroes in the commu­
nity felt his wife was guilty of immoral conduct (R. 161).

Concerning the conviction, the Superintendent conceded 
that he had made no investigation. He did not know that 
there was no jury trial in the Justice of the Peace Court, or 
that appellant’s husband received a jury trial in the County 
Court (R. 144-47). He acted before the Mississippi Supreme 
Court reversed the guilty verdict on June 3, 1963, and



7

although that Court later withdrew its first decision and 
affirmed on July 12,1963, the Superintendent took no action 
during the interim to reinstate appellant (R. 149).1

As to the libel case, the Superintendent said that he un­
derstood that the charge was based on a statement by Dr. 
Henry about the conduct of police who arrested him on the 
morals charge, reporting that he had obtained this infor­
mation from the papers (R. 147). The information on the 
alleged fraudulent conveyance was obtained from private 
attorneys who were going to file this case (E. 147). Asked 
whether he had made any investigation into the basis for 
the libel charge, the Superintendent asserted: “It is not 
my position to dig into lawsuits. My position doesn’t en­
title me to that time” 2 (R. 164).

At the trial, the board members sought dismissal of the 
action as to them relying on a state statute, §§6282-05, 07,

1 The first opinion of the Supreme Court of Mississippi reversing 
the guilty verdict was originally reported as Henry v. State of 
Mississippi, 154 So. 2d 289. Following a Suggestion of Error sub­
mitted by the Attorney General of Mississippi, the first opinion 
and judgment was withdrawn, and a second opinion affirming the 
judgment of the trial court is now reported at 154 So. 2d 289, 
the citation of the former opinion. Petition for Writ of Certiorari 
to the United States Supreme Court was filed October 10, 1983, 
and granted on February 17, 1964. The case was argued on Oc­
tober 13, 1964, and is now pending decision.

2 Court records indicate that in April 1962 libel suits were filed 
against appellant’s husband by the Clarksdale Chief of Police, 
Benford Collins and the Coahoma County Attorney Thomas H. 
Pearson, seeking a total of $40,000 in damages based on the pub­
lication by the Associated Press (A. P.) and the United Press 
International (U. P. I.) of statements that his arrest on the morals 
charge was a diabolical plot cooked up by the Police Chief and 
County Prosecutor because of his civil rights activities. Trial court 
judgments for $40,000 were affirmed on appeal to the Mississippi 
Supreme Court. Henry v. Collins, 158 So. 2d 28 (1963) ; Henry 
v. Pearson, 158 So. 2d 695 (1963). Both cases are presently in the 
United States Supreme Court on petitions for certiorari. Neither 
A. P. nor U. P. I. were joined as defendants in the libel suit.



8

Miss. Code Annot. (1942), interpreted by the Mississippi 
Supreme Court in Lott v. State, 239 Miss. 97, 121 So. 2d 
402 (1960), to prohibit the school boards from employing 
teachers unless recommended by the superintendent (R. 46, 
155). One board member testified that appellant’s teaching 
position had been given to one, Georgia Richardson, who 
at the time had no teaching experience (R. 151-52).

The court sustained objection as to questions aimed at 
determining the Superintendent’s knowledge about wide­
spread arrests of Negroes in Mississippi, particularly 
N.A.A.C.P. members, who were engaged in civil rights 
activities (R. 164-65). Counsel for appellant attempted to 
obtain answers to these questions utilizing Rule 43(c), 
F. R. C. P., but the Superintendent’s responses were vague, 
there were continuing objections by appellee’s counsel, and 
after admitting that he had seen some civil rights pickets 
arrested, the court sustained objection to further question­
ing even under Rule 43(c) (R. 167-72).

Motion to Conform the Pleadings to the Evidence

A few days after the close of the hearing, on August 3, 
1963, appellant moved the District Court pursuant to Rule 
15(b) of the Federal Rules of Civil Procedure to allow the 
pleadings to be conformed to the evidence at trial. The 
proposed amendments to the complaint asserted that the 
reasons appellee Hunter gave at the hearing for his refusal 
to approve appellant’s application were as constitutionally 
objectionable as those originally attributed to appellees by 
appellant, and asked that appellees be restrained from fur­
ther refusing appellant a contract because of those reasons 
(R. 193-197).



9

The District Court’s Findings

December 26, 1963, Judge Clayton submitted his opinion 
(R. 198). He considered first and denied appellant’s mo­
tion to amend the pleadings to conform to the evidence at 
trial. He reasoned that the proposed amendments could 
not be allowed because: (1) They changed the character 
and theory of the case; (2) Appellees were not prepared to 
argue on the basis of the reasons given by their witness 
and asked no questions in relation to those reasons; (3) the 
evidence forming the basis of the proposed amendments 
came in over the objection of appellant’s lawyer (R. 198- 
200) .

Even though Judge Clayton denied appellant’s motion to 
amend, he gave his views as if the amendments had been 
allowed. He found that Superintendent Hunter had not 
acted arbitrarily and that he “had good cause and exercised 
a sound discretion” (R. 202-204).

Turning to the original complaint, Judge Clayton found 
that appellant had failed to sustain her burden of proving 
that she had been discharged because of her N.A.A.C.P. 
membership, associations, and activities (R. 204) and that 
a court does not have remedial power to force parties to 
contract (R. 206).

Judge Clayton believed it unnecessary to rule on appel­
lant’s claim that statutes requiring the filing of member­
ship affidavits were unconstitutional since, appellant being 
now a “non-teacher,” the issue was moot (R. 207).

An order denying appellant’s motion to conform the 
pleadings, dismissing appellant’s complaint, and awarding 
costs to appellees was entered by Judge Clayton on Decem­
ber 26, 1962, pursuant to opinion of that date (R. 208). 
Notice of Appeal to this Court was filed December 31, 1963 
(R. 209).



10

Specifications o f Error

The court below erred in:
1. holding that the reasons given by appellee Hunter for 

refusal to employ appellant did not violate the due process 
clause of the Fourteenth Amendment to the United States 
Constitution and in refusing to allow appellant to conform 
her pleadings to the evidence establishing this violation;

2. holding that appellant had not sustained her burden 
of proving that she was refused a contract in violation of 
the Fourteenth Amendment because of her own and her 
husband’s civil rights activities;

3. failing to rule on and hold unconstitutional under the 
Fourteenth Amendment statutes requiring the filing of 
membership affidavits; 4

4. holding that the court had no power to order appellees 
to contract to give appellant relief.



11

A R G U M E N T  

P re lim in a ry  S ta tem en t

This case presents for review still another effort by 
officials of the State of Mississippi to maintain racial seg­
regation in the public schools as required by the Missis­
sippi Constitution,3 4 * its Statutes,4 and its policy.6

3 Art. 8, §207 of the Mississippi Constitution states: “Separate 
schools shall be maintained for children of the white and colored 
races.”

4 §6220.5 Miss. Code of 1942 Annot., renders unlawful and 
threatens to punish with fine, prison, or both, any white person 
attending any public school with a Negro.

§6328-03 Miss. Code of 1942 Annot., requires as a prerequisite 
to the reorganization of school districts, the submission and ap­
proval of a “satisfactory plan of equalization of facilities between 
the races . . . ”

§4065.3 Miss. Code of 1942 Annot. requires the entire executive 
branch of the government, including “all boards of county super­
intendents of education . . .  to prohibit, by any lawful, peaceful 
and constitutional means, the implementation of or the compliance 
with the Integration Decisions of the United States Supreme Court, 
[citations omitted] and to prohibit by any lawful, peaceful and 
constitutional means, the implementation of any orders, rules or 
regulations of any board, commission or agency of the federal 
government, based on the supposed authority of said Integration 
Decisions, to cause a mixing or integration of the white and Negro 
races in public schools, . . . ”

§2056 Miss. Code of 1942 Annot. makes it a conspiracy for 2 
or more persons to conspire “to overthrow or violate the segre­
gation laws of this state through force, violence, threats, intimida­
tion, or otherwise;”

§3841.3 Miss. Code 1942 Annot. authorizes the state Attorney 
General to represent any school official in suits challenging the 
validity under the constitution and laws of the United States of 
a state law determining inter alia what persons shall attend or be 
enrolled in state colleges and schools. It was enacted in 1958.

§9028-31-48 Miss. Code of 1942 Annot. establishes the State Sov­
ereignty Commission. The Governor is Chairman and the Com-



12

This is not merely “a teacher-contract” case but involves 
the far-from-isolated phenomenon of intimidation and 
denial of constitutional rights of an individual associated 
with the civil rights cause. The United States Commission 
on Civil Eights has taken note of the increasing intimida­
tion of Negroes who press for their rights,* * * * 5 6 and the United 
States Congress has made special provision in the Civil 
Eights Act of 1964 for those who are kept from protecting 
their rights in court by fear for their bodily and economic 
safety.7 The Supreme Court has frequently recognized the 
special hostility directed toward N.A.A.C.P. and its 
members.8 And this Court has received an increasing num­
ber of cases seeking relief against state officials who usurp

mission is charged with the duty “ . . .  to do and perform any
and all acts and things deemed necessary and proper to protect
the sovereignty of the State of Mississippi . . . from encroachment 
thereon by the federal government or any branch or agency there­
of . . . ” Miss. Code 1942, Section 9028-35.

5 This court has recognized and taken judicial notice of this 
policy. See Meredith v. Fair, 298 F. 2d 696, 701; 305 P. 2d 343, 
344-45 (5th Cir. 1962); Evers v. Jackson Municipal Separate 
School District, 328 P. 2d 408 (5th Cir. 1964). Cf. United States 
v. City of Jackson, 318 P. 2d 1, 5-6 (5th Cir. 1963); United States 
v. Mississippi, 229 P. Supp. 925, 974, 984 (S. D. Miss. 1964) (dis­
sent) ; cf. United States ex rel. Ooldsby v. Harpole, 263 P. 2d 71 
(5th Cir. 1954).

6 See Report of the United States Commission on Civil Rights, 
“Freedom to the Free” 184 (1963) and “A Report on Mississippi,” 
Mississippi Advisory Committee to the United States Commission 
on Civil Rights (January, 1963).

7 Civil Rights Act of 1964, H. R. 7152, Title IV, §407.
8 NAACP v. Button, 371 U. S. 415 (1963); Louisiana v. NAACP, 

366 U. S. 293 (1960) ; Shelton v. Tucker, 364 U. S. 479 (1960); 
Bates v. Little Bock, 361 U. S. 516 (1960); NAACP v. Williams, 
359 U. S. 550 (1959); NAACP v. Alabama, 357 U. S. 449 (1958) ; 
NAACP v. Alabama ex rel. Patterson, 360 U. S. 240 (1959); 
NAACP v. Gallion, 368 U. S. 16 (1961); NAACP v. Alabama, 
377 U. S. 288 (1964) ; Gibson v. Florida Legislative Investigation 
Committee, 372 U. S. 539 (1963).



13

their powers in order to harass persons and groups in­
volved in the civil rights movement.9

The record here illustrates the increasing pressures ap­
plied by the State to its public school teachers, pressures 
designed to and having the effect of stifling “ . . . that free 
play of the spirit which all teachers ought especially to 
cultivate and practice” ; Wieman v. Updegraff, 344 U. S. 
183, 195 (1952).

The Supreme Court’s recognition in Adler v. Board of 
Education, 342 U. S. 485, 493 (1952), that school adminis­
trators have the right and duty to screen teachers as to 
their “ . . . fitness to maintain the integrity of the schools 
as a part of ordered society . . . ” has been construed by 
appellees to grant unlimited discretion to act in conform­
ance with clearly invalid State laws and policies. Obviously, 
such an interpretation is worlds removed from decisions 
of the Supreme Court which has erected stern standards 
protecting teachers against arbitrary and discriminatory

9 Kelly v. Page, 335 F. 2d 114 (5th Cir. 1964); Anderson v. City
of Albany, -----  F. Supp.----- (M. D. 6a. Aug. 19, 1964) (civil
rights workers harassed and arrested by city officials while con­
ducting public protests against segregation) ; Zellner v. Lingo, 334 
F. 2d 620 (5th Cir. 1964), affirming 218 F. Supp. 513 (M. D. Ala. 
1963) (arrests of civil rights protestors involved in “freedom 
march”); Woods v. Wright, 324 F. 2d 369 (5th Cir. 1964) (ex­
pulsion without notice or hearing of Birmingham school children 
who participated in civil rights protests) ; Congress of Racial Equal­
ity v. Clemmons, 323 F. 2d 54 (5th Cir. 1963) (civil rights workers 
enjoined by city officials in Baton Rouge, La., from conducting 
demonstrations) ; Aelony v. Pace, three-Judge court, M. D. 6a., 
Nov. 1, 1963, 32 L. W. 2215, opinion by Chief Judge Tuttle (civil 
rights workers charged with capital offense of sedition and held 
without bail) ; CORE v. Douglas, 318 F. 2d 95 (5th Cir. 1963) 
(injunction against civil rights activity by city officials of McComb, 
Miss.) ; United States v. Wood, 295 F. 2d 772 (5th Cir. 1961) (civil 
rights worker beaten by sheriff and arrested) ; Dixon v. Alabama 
State Board of Education, 294 F. 2d 150 (5th Cir. 1961) (expulsion 
of college students for protesting segregated facilities in County 
courthouse).



1 4

action far less severe than that to which appellant has 
been exposed.

If the Court will invalidate a “loyalty oath” applied to 
teachers which based employability solely on the fact of 
membership in certain organizations, Wieman v. Updegraff, 
supra, strike a New York City Charter provision requir­
ing dismissal of a teacher who invokes the Fifth Amend­
ment in answer to questions posed by a Congressional 
inquiry, Slochower v. Board of Higher Education, 350 U. S. 
551 (1956), and void an Arkansas statute requiring teachers 
to submit a sworn list of all organizations to which they 
have belonged or regularly contributed during the previous 
five years, Shelton v. Tucker, 364 U. S. 479 (1960), what 
must be the result where a Negro teacher in Mississippi, 
acknowledging N.A.A.C.P. membership, is arbitrarily 
refused a contract, based on reasons so patently manu­
factured that appellees did not make them known until 
the trial of this case, and which when revealed stand upon 
appellant’s husband’s involvement with the law, something 
in itself based on civil rights activity? Appellant submits 
that the Board’s reasons are explainable only in the con­
text of Mississippi’s prescribed statutory policy of main­
taining racial segregation and, even if believed, infringe 
on rights guaranteed appellant by the United States Con­
stitution.



1 5

I.
T h e  C ourt E rred  (a )  in  Failing  to  H old  T h a t th e  

R easons fo r  W hich  A ppellees S tate T hey  R efused  to 
E m ploy A ppellan t W ere U nconstitu tiona l C onditions 
on  A ppellan t’s E m ploym ent and  (b )  in  R efusing  to 
Allow A ppellan t to  A m end H er C om plaint to  C onform  
to  th e  E vidence a t Trial.

A.

At the trial, Superintendent Hunter finally revealed 
that he had overruled the favorable recommendations of 
appellant’s principal and supervisor because appellant’s 
husband had been arrested and convicted (though that 
case is on appeal) and later was sued by the arresting 
officer and prosecutor, and appellant was about to he 
sued. Appellant contends that the Board merely used her 
husband’s difficulties to screen the accomplishment of 
what had been attempted several times since the com­
munity’s first school desegregation effort was made in 
1956. But even assuming, arguendo, that the Board’s given 
reasons were in fact the basis for appellant’s dismissal, 
the refusal to employ appellant for such reasons was so 
unreasonable that it violated the due process clause of 
the Fourteenth Amendment to the United States Constitu­
tion.

It is well-settled that a state may not, consistent with 
substantive due process, exclude a person from public 
employment for reasons which are “patently arbitrary or 
discriminatory” (Wieman v. Updegraff, 344 U. S. 183, 192 
(1952)). Cramp v. Board of Public Instruction, 368 U. S. 
278, 288 (1961) (public school teacher may not be dis­
charged for failure to subscribe to unconstitutionally vague 
oath); Torcaso v. Watkins, 367 U. S. 488, 495-96 (1961)



16

(appointee to the office of notary public may not be denied 
commission for failure to subscribe to religious oath); 
Schware v. Board of Bar Examiners, 353 U. S. 232 (1957) 
(applicant for admission to the bar may not be excluded 
from practice when evidence does not support ground of 
exclusion).

In essence, appellees placed the following conditions on 
future employment of appellant by a governmental body: 
she may not be married to a man concerning whom al­
legations have been made which have led to a trial for a mis­
demeanor and a suit for slander; moreover, she may not 
have done anything which would provoke others, with or 
without justification, to file suit against her to upset 
an allegedly fraudulent conveyance. If these conditions 
are unconstitutional, then the refusal to contract for yet 
another year with appellant is unconstitutional. It is well 
settled that appellees may not interpose unconstitutional 
conditions in the way of entering into a contract with ap­
pellant. See Frost Trucking Company v. Railroad Com­
mission, 271 U. S. 583 (1926). And see Alston v. School 
Board of the City of Norfolk, 112 F. 2d 992 (4th Cir. 
1940), holding that the Board might not require Negro 
teachers to accept discriminatory pay scales in order 
to obtain employment. More to the point, is the opinion 
of the late Chief Judge Parker in Bryan v. Austin, 148 F. 
Supp. 563, 567 (E. D. S. C. 1957) (dissenting) to the effect 
that South Carolina statutes which made non-member­
ship in NAACP a condition of teacher employment were 
unconstitutional.10

The conditions imposed upon appellant are so capricious 
and onerous as to fall squarely under the interdict of

10 See also Wieman v. Updegraff, 344 IT. S. 183 (1952); Slochower 
v. Board of Higher Education of City of New York, 350 U. S. 551 
(1956) ; United Public Workers v. Mitchell, 330 U. S. 75 (1947) ; 
In Be Summers, 325 U. S. 561 (1945); Terral v. Burke Construction 
Co., 257 U. S. 529 (1922).



17

the Fourteenth Amendment. Probably the only obvious 
methods by which appellant could escape the sanctions 
imposed upon her husband would be to separate from him 
or to secure a divorce. But of course the Fourteenth 
Amendment recognizes the sacrament of marriage as be­
yond the arbitrary grasp of the State. Cf. Meyer v. 
Nebraska, 262 U. S. 390 (1923); Skinner v. Oklahoma, 316 
U. S. 535 (1942).

But the extravagance of the proposition advanced by 
appellees is further illuminated when we observe that they 
urge a doctrine that can be found elsewhere only in the 
common law at its earliest, least civilized stage of develop­
ment. Visiting the consequences of the wrongs of one 
member of a family upon another went out of our law 
with the demise of the notion of attainder or “corruption 
of blood”. See generally 16 Am. Jur. 10, 14. But even 
corruption of blood applied only to a blood relationship, 
not to rights deriving from the marriage relationship 
e.g. curtesy. See 15 Am. Jur. 289-90. And in any event 
the doctrine makes no sense in terms of modern concepts 
of individual guilt.11

11 While the government’s security programs made provision for 
the exclusion from sensitive areas of persons guilty of “establishing 
or continuing a sympathetic association” with a member of named 
classes of subversive persons, Executive Order No. 10450, §8, sev­
eral cases indicate that in practice even the military was reluctant 
to bar individuals solely because they were related to persons with 
subversive backgrounds.

In a typical case, In  Be Landy, an honor graduate of the Mer­
chant Marine Academy appealed to the Secretary of the Navy 
from the denial of a Navy Reserve Commission because his mother 
was a former Communist. Reviewing the case, the Secretary of 
the Navy concluded that Landy’s association with his mother was 
the natural relationship of mother and son, and not a sympathetic 
association with her political belief. In concluding his opinion, 
the Secretary stated: “I could not ignore one of the fundamental 
principles on which our American way of life has been based and



1 8

To tar appellant “with the same brash” (R. 203) that 
her husband has been smeared with is noxious in the 
extreme in view of the fact that petitioner’s husband not 
only has not been adjudicated as guilty but has his case 
now pending before the Supreme Court of the United 
States. Moreover, on the merits of his constitutional claim, 
the Supreme Court of Mississippi has agreed with him 
(withdrawn opinion), but has held that by some technical 
imperfection the claim was not properly raised (Henry v. 
State of Mississippi, 154 So. 2d 289 (1963)), a holding now 
being contested before the United States Supreme Court

But in any event the differences that appellant’s hus­
band had, and that appellant at the time of her discharge 
may have had, with various private parties and the State 
of Mississippi are something which deserve adjudication 
on the merits in the courts of Mississippi and/or the courts 
of the United States. To visit a collateral punishment in 
connection with these charges is to trench upon a well 
recognized privilege and immunity of United States citizen­
ship i.e. to have one’s federal rights adjudicated in court. 
See Crandall v. Nevada, 6 Wall. 36, 18 L. ed. 745, 747; 
Slaughter House Cases, 16 Wall. 36, 21 L. ed. 394, 409; 
see also dissent by Mr. Justice Field in Slaughter House 
Cases, 21 L. ed. 394, 413 and compare 42 U. S. C. §§1981, 
1982; see 42 U. S. C. §1985; Section 25 of the Constitution

that is the opportunity of each individual to progress and succeed 
on his own merits.”

The Landy case and similar cases are reported in Government 
Security and Loyalty, 31:501-502, GSL Newsletter, Oct. 1955, a 
manual of laws, regulations, and procedures published by the 
Bureau of National Affairs, Inc. (BNA), Washington, D. C. Also 
see, Brovrn, Loyalty and Security, Yale University Press, New 
Haven (1958), which summarizes the public resentment to guilt 
by relationship cases, and guilt by marriage and kinship cases 
when they came to public attention in 1955.



19

of Mississippi. See also, Vicksburg Lodge No. 26, et ad. 
v. Grand Lodge of Free and Accepted Masons of Missis­
sippi, 16 Miss. 214, 76 So. 572, 576 (1917).

If some of the claims in this portion of the brief sound 
unusual, it is merely because the punishment visited upon 
appellant is unprecedented. We do not today hold sons, 
brothers, husbands, or wives guilty for the offenses of those 
to whom they are related. Nor do we, without more, in this 
day in which we recognize the primacy of education, remove 
teachers from systems because of unsubstantiated charges 
against their husbands. To the extent that due process 
of law means a certain reasonableness and absence of 
arbitrariness, the punishment visited upon appellant vio­
lates that fundamental requirement.

B.
Both the text and the philosophy of Rule 15(b) F. R. 

C. P. support appellant’s contention that the court below 
erred in refusing to permit amendment of the pleadings to 
conform to the evidence introduced by appellees at trial.12 
This Court has properly given Rule 15(b) a liberal inter­

12 Rule 15(b) Amendments to Conform to the Evidence. When 
issues not raised by the pleadings are tried by express or implied 
consent of the parties, they shall be treated in all respects as if 
they had been raised in the pleadings. Such amendment of the 
pleadings as may be necessary to cause them to conform to the 
evidence and to raise these issues may be made upon motion of 
any party at any time, even after judgment; but failure so to 
amend does not affect the result of the trial of these issues. If 
evidence is objected to at the trial on the ground that it is not 
within the issues made by the pleadings, the court may allow the 
pleadings to be amended and shall do so freely when the presen­
tation of the merits of the action will be subserved thereby and 
the objecting party fails to satisfy the court that the admission 
of such evidence would prejudice him in maintaining his action 
or defense upon the merits. The court may grant a continuance 
to enable the objecting party to meet such evidence.



2 0

pretation, Pearl Assur. Co. Ltd. v. First Liberty National 
Bank, 140 F. 2d 200 (5th Cir. 1944), and has specifically 
approved amendments after the conclusion of the evidence 
to reflect charges based on proof brought to light by the 
opposing party. Hall v. National Supply Co., 270 F. 2d 
369 (5th Cir. 1959).

Here, as in the Hall case, supra, appellant sought to 
amend her complaint to reflect the Board’s reasons for not 
rehiring her. This information had not been supplied at 
the time appellant’s application was disapproved, nor was 
it set forth in appellee’s answer or the answers to appel­
lant’s interrogatories. After appellee testified to these rea­
sons at the elicitation of the court (R. 141) and appellant’s 
attorney questioned him further on the matter (R. 143-51), 
appellees, during their case, developed and amplified the 
asserted reasons for disapproving appellant’s application. 
Moreover, appellees came to the trial not only prepared with 
a detailed knowledge of all aspects of appellant’s husband’s 
difficulties with the authorities (R. 148-49), but also were 
able to argue that the “guilt-by-association” approach used 
on appellant was not unique, but had been used before in 
the case of a Negro principal whose wife had been accused 
of immoral conduct (R. 161).

There is, then, no basis for assuming that appellees were 
surprised by the introduction of the reasons into the trial 
and were not prepared to try the case with those in issue. 
There being no notice difficulties, appellant should have 
been allowed to amend her pleadings to conform to the 
evidence at trial, particularly in viewT of the consistent will­
ingness of this Court to sustain motions to amend com­
plaints to conform to the evidence—even after judgment. 
Of. Watson v. Cannon Shoe Co., 165 F. 2d 311 (5th Cir. 
1948) and cases cited therein; Daniel Lumber Co. v. Em- 
presas Hondurenas, 215 F. 2d 465 (5th Cir. 1954); Mary­



2 1

land Casualty Co. v. Gerlaske, 68 F. 2d 497 (5th Cir. 1934). 
See also, 3 Moore Federal Practice, 848-49, Par. 15.14.

II.
T he R ecord  Shows A ppellan t W as D ism issed Because 

o f H er Own an d  H er H usband’s Civil R ights A ctivities.

Besides holding that appellees were not arbitrary in re­
fusing to rehire appellant because of pending charges 
against her husband and a suit to be filed against her, the 
court below ruled that appellant failed to prove adequately 
that she was discharged for N.A.A.C.P. membership, 
associations and activities. But appellant submits that this 
Court can come to but one conclusion: appellant was re­
fused re-employment to discriminate against her and her 
husband because of their civil rights activities, and that 
such refusal abridges rights guaranteed by the First and 
Fourteenth Amendments to the Constitution of the United 
States. Shelton v. McKinley, 174 F. Supp. 351 (E. D. Ark. 
1959).

In Meredith v. Fair, 305 F. 2d 343, 360 (5th Cir. 1962), 
cert. den. 371 U. S. 828, this Court set standards of review 
applicable to this case: “to study the case as a whole, 
weighing all of the evidence and rational inferences in order 
to reach a net result; . . . ” and “to consider the immediate 
facts in the light of the institution’s past and present policy 
on segregation, as reflected not only in the evidence but in 
statutes and regulations, histoiw and common knowl­
edge ; . . . ”

In Meredith, notwithstanding the State’s strenuous as­
sertions that Meredith’s application was denied because of 
(a) an alleged false voter registration, (b) psychological 
problems, and (c) a bad character risk, this Court, rejected



the State’s reasons as “frivolous” and “trivial”, and con­
cluded that Meredith was rejected because of his race. 305 
F. 2d at 361.

Thus the record is clear. Appellant was an excellent 
teacher; she cooperated well with fellow teachers; she was 
quite effective in the classroom and in extracurricular 
activities (E. 91-92, 98). Her supervisors considered her 
one of the best teachers in Coahoma County and in the 
State of Mississippi (B. 92, 109). Appellees make no claim 
that she ever failed in her duties as a teacher. For that 
reason, this is not a case like United States v. Board of 
Education of Greene County, Mississippi, 332 F. 2d 40 
(5th Cir. 1964), decided on a question of the plaintiff 
teacher’s competence.

When the contracting period for 1962-63 arrived, appel­
lant was recommended highly for a new contract (E. 99). 
Customarily, a recommendation by a teacher’s principal 
and supervisor amounted to employment for the ensuing 
year, since the approval of the Superintendent was virtu­
ally automatic (E. 103, 114-115). Indeed, appellant’s Super­
visor could not recall any other teacher whose recommenda­
tion by the principal was not approved by the Superinten­
dent (E. 103). Even teachers not recommended by their 
principals (including three in appellant’s school in 1962) 
(E. 88) were approved by the Superintendent and offered 
contracts.

There are about 200 teachers (E. 129) in the Coahoma 
School System, of whom 161 are Negro (E. 97). Only 
three, one of whom was appellant, have been involved in 
civil rights activity (E, 111-12). Only one, appellant, indi­
cated on her membership affidavit that she was and had 
been a member of the N.A.A.C.P. (E. 113-14). In view 
of Mississippi’s determined policy to maintain racial segre­



2 3

gation as long as possible, and considering the known and 
general hostility to N.A.A.C.P. activities in Mississippi, 
and civil rights activities in toto, these distinguishing fac­
tors are significant.

Nor is there lack of proof that appellant’s civil rights 
associations had not jeopardized her job in the past. Three 
times appellant’s application for contract was in danger of 
refusal because of her N.A.A.C.P. membership and her 
husband’s leadership of the Association (R. 111-113, 114, 
118). Each time, the last of which involved appellee Hunter, 
appellant’s application was saved only by the persuasion 
of Mrs. Lillian Johnson, former Supervisor of Negro 
Schools. Shortly after Mrs. Johnson retired (R. 114) ap­
pellant was refused a contract.

Appellant submits that these facts establish a prima facie 
case of discrimination because of her N.A.A.C.P. activi­
ties and associations, and the burden shifted to appellees 
to produce evidence sufficient to combat the clear inference 
of appellant’s ease. Nor could such inferences be overcome 
by appellees’ mere assertions that appellant’s civil rights 
connections played no part in her dismissal (R. 140). Cf. 
Eubanks v. Louisiana, 356 U. S. 584 (1958); Reece v. 
Georgia, 350 U. S. 85 (1955); Avery v. Georgia, 345 U. S. 
559 (1953); Norris v. Alabama, 294 U. S. 587 (1935).

In rebuttal, appellee Hunter claimed that after learning 
from a newspaper article about appellant’s husband’s diffi­
culties in March, 1962 (R. 144), he refused to follow the 
favorable recommendations of her principal and supervisor. 
Yet, in May 1962, he gave no reason to Supervisor of Negro 
Schools, Geraldine White, why the Board had not renewed 
plaintiff’s contract (R. 99). Then, in June, 1962, he told 
appellant that it was not he, but the Board who had refused 
her application, and he did not know why they had so acted



2 4

(R. 62). Finally, in September, 1962, in answer to appel­
lant’s request for a hearing or at least some explanation 
of the reasons for her rejection, Mr. Hunter replied, orally 
and by letter, that no reasons had to be given and that the 
action of the Board was final (R. 68-69).

Superintendent Hunter made no investigation of the 
status of the criminal charge or the libel suit against ap­
pellant’s husband (R. 144, 164). He made no investigation 
of the rumored charge of a fraudulent conveyance (R. 147). 
Even the Supreme Court of Mississippi’s reversal of ap­
pellant’s husband’s conviction, albeit temporary, had no 
effect on Mr. Hunter’s decision (R. 148-49).

The Superintendent claimed his action was based on con­
cern for the welfare of Negro children (R. 141-42) and re­
ported that, after receiving complaints from the Negro 
supervisor and the Negro community, a Negro principal 
had been dismissed because of alleged immoral conduct by 
his wife (R. 161). But, here, appellant was informed by her 
principal that she would be recommended for the 1962-63 
school year on March 21, 1962 (R. 60). Her principal made 
no mention of appellant’s husband’s arrest of March 3, 
1962, or his conviction in the Justice of the Peace Court 
on March 14, 1962. Obviously, he had received no word of 
the intentions of Superintendent Hunter, and no doubts 
had been raised in his mind concerning the effect of her 
husband’s difficulties on appellant’s worth as a teacher.

While these facts may not entirely close the question as 
to whether appellees’ action, which purged the system of 
its only teacher with civil rights associations, was designed 
to attain this goal, the high esteem in which appellant’s 
principal, supervisor and the Negro community continued 
to hold her indicates that the fears upon which appellees 
claim the dismissal was based are unfounded or, at best, 
unproved.



2 5

At this point, appellant submits that state statutes and 
policy supporting racial segregation become crucial as they 
were in Meredith v. Fair, supra, Bailey v. Patterson, 323 
F. 2d 201 (5th Cir. 1963), and Evers v. Jackson Municipal 
Separate School District, 328 F. 2d 408 (5th Cir. 1964).

In similar fashion, the Supreme Court, in reversing tres­
pass convictions of Negroes seeking service in privately- 
owned eating places, has relied on the presence of segrega­
tion statutes, regulations and policies. Peterson v. City of 
Greenville, 373 U. S. 244 (1963); Lombard v. Louisiana, 373 
U. S. 267 (1963); Robinson v. Florida, 378 U. S. 153 (1964). 
In each of these cases, the State, contending the convictions 
should be sustained, attempted to show that private deci­
sions by the store owners not to serve Negroes—and not 
segregation laws—led to the arrests. But in reversing, the 
Supreme Court held that even assuming the store managers 
would have acted as they did independently of the segrega­
tion laws, the States are barred from making this conten­
tion, for the convictions had the effect, which the State 
cannot deny, of enforcing segregation. In the Court’s 
words:

“When a State agency passes a law compelling persons 
to discriminate against other persons because of race, 
and the State’s criminal processes are employed in a 
way which enforces the discrimination mandated by 
that law, such a palpable violation of the Fourteenth 
Amendment cannot be saved by attempting to separate 
the mental urges of the discriminators.” Peterson v. 
City of Greenville, 373 U. S. 244, 248.

Thus, as to these cases, the possibility that an unlaw­
ful purpose entered into the store manager’s decision was 
sufficient to reverse, without weighing the relative in­
fluence of the lawful and unlawful motives impelling the 
store manager.



26

The applicability of the Peterson rationale to this case 
is inescapable. Under a whole body of Mississippi law, set 
forth above at footnotes 3 and 4, the defendants are re­
quired to take affirmative steps to maintain racial segrega­
tion in the public schools. Moreover, the requirement under 
Sec. 6282-41, Miss. Code Annot. (1942), that plaintiff list 
all organizations to which she belongs has been deemed 
by the Supreme Court to seriously impair the teacher’s 
right of free association. Shelton v. Tucker, 364 U. S. 479, 
486.

Taken together, the Mississippi school segregation stat­
utes and the affidavit requirement with its potential for 
interference with personal freedom are analogous to the 
laws requiring segregation in restaurants, and their very 
existence creates an irrebuttable presumption that they in­
fluenced appellees’ decision not to rehire appellant.

In summary, the courts have considered official racial 
policies in determining whether particular actions of state 
officials were taken to maintain racial restrictions in viola­
tion of constitutional rights. In jury discrimination cases, 
the absence of Negroes from juries for a long period of 
time is crucial. Eubanks v. Louisiana, 356 U. S. 584 (1958). 
The existence of state laws requiring racial segregation 
is vital in cases involving school desegregation. Meredith 
v. Fair, 305 F. 2d 343 (5th Cir. 1962), and even a state 
regulation based on race is pivotal in determining whether 
an otherwise valid arrest was fatally contaminated by state 
coercion. Robinson v. Florida, 378 U. S. 153 (1964).

Similar standards should be applied here. The lower 
court’s conclusion that “There are no racial or civil rights 
overtones in this record . . . ” (R. 205) flies in the face 
of what this Court has frequently judicially noticed about 
Mississippi’s racial policy under the truism “what every­
body knows the court must know.” Meredith v. Fair, supra,



2 7

at 344-45. By its failure to take notice of this policy, which 
here is apparent throughout the record, the lower court 
condemned this case to “the eerie atmosphere of never-never 
land,” Meredith v. Fair, 298 F. 2d 696, 701 (5th Cir. 1962), 
and relegated appellant’s constitutional rights to sterile 
pronouncements without meaning or force. Watson v. 
City of Memphis, 373 U. S. 526 (1963).

III.
T he S uprem e C ourt’s D ecision in  Shelton  v. Tucker  

E ntitles A ppellan t to  a R uling  E n jo in ing  A ppellees F rom  
A pplying M ississippi’s T eacher Affidavit Law.

In addition to the relief sought because of the appellees’ 
unconstitutional refusal to offer her a contract, appellant 
sought an injunction against the enforcement of Missis­
sippi’s Teacher Affidavit Statute, §§6282-41 to 6282-45 
Miss. Code Annot. (1942), passed by the Mississippi legis­
lature in 1956. The Record shows that it was compliance 
with this statute, requiring as a condition precedent to 
employment the filing annually of an affidavit listing with­
out limitation every organization to which she belonged or 
regularly contributed within the preceding five years, that 
provided the appellee Board with official notice of appel­
lant’s connection with the N.A.A.C.P. (R. 112-13).
Based on this notice, a former superintendent sought to 
refuse her application for a contract or subject it to 
termination on two weeks’ notice (R. 112-13), and the 
present superintendent, who upon reviewing the member­
ship affidavits in 1960, was shocked by appellant’s 
N.A.A.C.P. entry, had to be persuaded to offer ap­
pellant a contract for the 1960-61 school year (R. 118).

The danger of just such arbitrary action and abuse 
led a majority of the Supreme Court in Shelton v. Tucker,



2 8

364 U. S. 479 (1960), to hold unconstitutional an Arkan­
sas teacher affidavit statute which is quite similar to the 
Mississippi law.13 Acknowledging a state’s legitimate inter­
est in ascertaining the competence and fitness of its school 
teachers, the Court found that where teacher contracts 
must be renewed yearly, pressures on teachers, even if 
the affidavits were not made public, would seriously in­
fringe on the teacher’s right of free association, which 
right was viewed as “ . . . closely allied to freedom of 
speech and a right which, like free speech, lies at the 
foundation of a free society.” 364 U. S. at 486. After a 
review of the applicable cases, the Court condemned the 
Act’s “unlimited and indiscriminate sweep”, 364 U. S. at 
490, stating:

“The statute’s comprehensive interference with as- 
sociational freedom goes far beyond what might be 
justified in the exercise of the State’s legitimate in­
quiry into the fitness and competency of its teachers.” 
364 U. S. at 490.

Appellant submits that the dangers to teachers’ rights 
posed by Mississippi’s teacher affidavit law are greater 
than those recognized by the Supreme Court in the Arkan­
sas statute, if for no other reason than that Mississippi 
has continued to require compliance with its statute after 
the Court’s decision in Shelton v. Tucker, supra.

Moreover, even the dissenters in Shelton indicated that 
their opposition was limited to the statute’s validity on its 
face, and that proof of abuses in the Act’s administration 
would make a different case. 364 U. S. 499. In Mississippi, 
state statutes and policy require such abuses. Signifi­

13 Act 10 of the Second Extraordinary Session of the Arkansas 
General Assembly of 1958. A statement of Act 10 is set forth in 
Shelton v. Tucker, 364 U. S. at 481, fn. 1.



2 9

cantly, appellant was the sole teacher who listed current 
N.A.A.C.P. membership on her teacher affidavit (R. 
114, 129), and nnlike Arkansas, no teacher organization 
in Mississippi has dared to challenge the validity of the 
membership affidavit law, a reluctance more understand­
able because of enlightenment provided by recent com­
mentators on the Mississippi scene. See Silver, Missis­
sippi: The Closed Society, Harcourt, Brace & World, Ine., 
New York 1963-64; Smith, Congressman from Mississippi, 
Pantheon Books, New York (1964).

The District Court found that appellant had no standing 
to challenge the statutes in question because appellant is 
a ‘‘non-teacher” (R. 207). While appellant is a “non­
teacher” in the sense that she has not received the contract 
for which she applied, the lower court failed to notice that 
all persons to whom the membership affidavit requirement 
could possibly apply are “non-teachers” since they are mere 
applicants for teaching contracts. This being so, appellant, 
applying as she is for a teacher contract, is of the class 
affected by this legislation and may challenge the imposi­
tion of this unconstitutional burden upon her as an appli­
cant, without refusing to sign an offered affidavit in order 
to make a test case. Evers v. Dwyer, 358 U. S. 202 (1958).

An argument similar to that relied on by the court below 
was raised in Virginia where Negro teachers brought suit 
to obtain salaries equal to those given white teachers. The 
school board’s contentions that teachers were employed for 
only one year, that hiring was at the board’s discretion, 
and therefore, the plaintiffs who had already signed con­
tracts accepting discriminatory salaries, were in no posi­
tion to sustain the suit were answered by the Fourth Cir­
cuit in Alston v. School Board of City of Norfolk, 112 F. 
2d 992, 996-97 (4th Cir. 1940) in a manner so applicable 
to the instant case as to justify lengthy quotation:



3 0

As teachers holding certificates from the state, plain­
tiffs have acquired a professional status. It is true 
that they are not entitled by reason of that fact alone 
to contracts to teach in the public schools of the state; 
for whether any particular one of them shall be em­
ployed to teach is a matter resting in the sound dis­
cretion of the school authorities; but they are entitled 
to have the compensation for positions for which they 
may apply, and which will unquestionably be awarded 
to some of them, fixed without unconstitutional dis­
crimination on account of race. As pointed out by 
Judge Chesnut, in Mills v. Lowndes, supra [7). 0., 26 
F. Supp. 792], they are qualified school teachers and 
have the civil right, as such, to pursue their profes­
sion without being subjected to discriminatory legis­
lation on account of race or color. It is no answer 
to this to say that the hiring of any teacher is a mat­
ter resting in the discretion of the school authorities. 
Plaintiffs, as teachers qualified and subject to employ­
ment by the state, are entitled to apply for the posi­
tions and to have the discretion of the authorities 
exercised lawfully and without unconstitutional dis­
crimination as to the rate of pay to be awarded them, 
if their applications are accepted.

See also Bryan v. Austin, 148 F. Supp. 563, 572 (E. D.
S. C. 1957), dissent by Judge Parker.



3 1

IV.
T he C ourt E rred  in  H old ing  T h a t I t  D id N ot Have th e  

Pow er to  O rd er th e  M aking o f a C ontract as R elie f to  
A ppellan t.

The District Court was of the opinion that “it is not 
now nor has it ever been within the purview of judicial 
power to make contracts for parties” (R. 206). But this 
opinion, appellant submits, incorrectly assesses the reme­
dial ability of courts which have frequently ordered the 
making of contracts in order to effect relief in cases be­
fore them. Besse-r Mfg. Co. v. U. S., 343 U. S. 444 (1952); 
U. S. v. U. 8. Gypsum Co., 340 U. S. 76 (1950); U. 8. v. 
National Lead Co., 63 F. Supp. 513 (S. D. N. Y. 1945); 
U. S. v. Associated Press, 52 F. Supp. 362 (S. D. N. Y. 
1943).

Moreover, here appellant contends that the Board’s re­
fusal to hire her was a violation not of contract but of 
constitutional rights, the very rights the federal district 
courts were created to protect. See Lusky, Racial Discrimi­
nation and the Federal Law: A Problem in Nullification, 
63 Colum. L. Rev. 1163, 1178 (1963).

The Mississippi state courts have ordered the making 
of employment contracts in cases where teachers have been 
improperly refused contracts by their Superintendents or 
Boards. In Brown v. Owen, 75 Miss. 319, 23 So. 35 (1898), 
a Negro teacher was recommended to her superintendent 
who improperly refused to approve her application for 
contract. The teacher requested and was given a writ of 
mandamus against the superintendent under which he was 
required to contract with her. Similarly, in State ex rel. 
Cowan v. Morgan, 141 Miss. (1926) 585, 106 So. 820, a 
Superintendent who for unlawful reasons had refused the



32

application of a recommended teacher was compelled to 
contract with that teacher. The ability of the conrts to 
order the making of contracts to effect relief to teachers 
who have been improperly refused has also been recognized 
in Cox v. Irvine, 108 So. 736 (1926); State ex rel. Baria v. 
Alexander, 158 Miss. 557, 130 So. 754 (1930).

CONCLUSION

Appellant respectfully prays this Court reverse the 
holding of the lower court and remand the case with 
instructions to order the appellees to promptly approve 
appellant’s application and grant appellant a contract.

Respectfully submitted,

R. J ess B kow n

125% North Farish Street 
Jackson, Mississippi

J ack  G-b een bebg

C o n sta n ce  B a k eb  M otley

D ebrick : A. B e l l , J b .
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant



3 3

CERTIFICATE OF SERVICE

The undersigned, one of counsel for appellant, hereby
certifies that on this, the .............. day of October, 1964,
he served counsel for appellees, William H. Maynard, Esq., 
and George F. Maynard, Jr., Esq., Stevens Building, 
Clarksdale, Mississippi, and the Honorable Will S. Wells, 
Assistant Attorney General, State Capitol Building, Jack- 
son, Mississippi, with three copies of appellant’s brief by 
mailing same to the above addresses by United States mail, 
air mail, postage prepaid.

Attorney for Appellant