Smith v Morrilton School District BOE Brief for Appellants

    United States Qlnart of ApppaIs
F ob th e  E igh th  C ibcuit 

No. 18243 
C ivil

Clem ent  S. S m ith  and T he A bkansas T eachebs A ssocia­
tion , I nc ., a non-profit association organized under the 
laws of the State of Arkansas, and M abgabet J. S andebs, 
plaintiff-intervenor,

Appellants,
—v.—

T he  B oard of E ducation of M orbilton S chool D istrict 
No. 32; D r . H. B. W h ite , F elver R owell, J ack B land , 
W . 0 .  B yrd, W illiam  W offord, W ylie C ox, Directors of 
the said District; and T erry H umble , Superintendent 
of Schools,

Appellees.

APPEAL FROM ORDER OF TH E  U N ITED STATES DISTRICT COURT FOR 
TH E  W ESTERN DISTRICT OF ARKANSAS, FORT SM IT H  DIVISION

BRIEF FOR APPELLANTS

J ohn  W . W alker
1304-B Wright Avenue 
Little Rock, Arkansas

H arold A nderson
610 West Ninth Street 
Little Rock, Arkansas

George H oward, J r .
329% Main Street 
Pine Bluff, Arkansas

J ack  Greenberg 
D errick A. B ell , Jr.

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



I N D E X

PAGE

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

Statement of Points to Be A rgued................................  16

A rgument

Preliminary Statement .................................................. 18

I. Plaintiffs, Under Generally-Applied Rules of 
Proof in Racial Discrimination Cases, Suffi­
ciently Proved Their Dismissal by the Board 
Was Racially Motivated and Violated Consti­
tutionally-Protected Rights ..................................  22

II. School Boards Effecting Faculty Reductions 
Required by Desegregation Must Evaluate All 
Teachers, Both Incumbent and Applicants, by
Valid, Objective and Ascertainable Standards .. 29 

C onclusion .........................................................................  32

T able of Cases

Adler v. Board of Education, 342 U.S. 485, 493
(1952) ............................................................................. 16,22

Alston v. School Board of City of Norfolk, 112 F.2d 
992, 997 (4th Cir. 1940), cert, den., 311 U.S. 693 ....2,16,22 

Avery v. Georgia, 345 U.S. 559 (1953) ........................ 16,25

Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963) .......16, 27
Bonner v. Texas City Independent School District, Civ.

No. 65-G-56 (S.D. Tex. 1965) ........................................  20
Bradley, et al. v. School Board of City of Richmond,

317 F.2d 429 (4th Cir. 1963) ................................ '.... 17,29



11

Bradley v. School Board of Richmond,------U .S .------- ,
15 L.ed. 2d 187 (1965) .................................................... 18

Brooks v. School District of Moberly, Mo., 267 F.2d
733 (8th Cir. 1959) ..........................................15,16,17,20,

22, 23, 27, 30
Brown v. Board of Education, 347 U.S. 483 (1954)   18
Brown v. Board of Education, 349 U.S. 294 (1955)   18
Bryan v. Alston, 148 F.Supp. 563, 567 (E.D.S.C. 1957)

(dissent) .........................................................................16, 22
Buford v. Morganton City Board of Education, 244 

F.Supp. 437 (W.D.N.C. 1965) ......................................  19

Calhoun v. Latimer, 321 F.2d 302 (5th Cir. 1963)
vacated 377 U.S. 263 (1964) ........................ _..... 17,29,31

Chambers v. Hendersonville City Board of Education,
245 F.Supp. 759 (W.D.N.C. 1965), on appeal to
Fourth Circuit (No. 10,379) ........................................ 19

Christmas v. Board of Education of Harford County,
Md., 231 F.Supp. 331 (D.Md. 1964) .........16,19,22,26,27

Cooper v. Aaron, 358 U.S. 1, 16 (1958) ...................... 17,30
Cramp v. Board of Public Instruction, 368 U.S. 278 

(1961) ......................v...................................................... 16,22

Dean v. Gray-Supt. Wagoner Okla. Public Schools, Civ.
No. 5833 (E.D. Okla. 1965) ......................................... 19

Dobbins v. County Board of Education of Decatur Co.,
Civ. No. 1608 (E.D. Tenn. 1965) ..................................  20

Dove v. Parham, 282 F.2d 256 (8th Cir. 1960) ...........16, 26
Dowell v. School Board of City of Oklahoma City 

Public Schools, 244 F.Supp. 971 (W.D. Okla. 1965) .. 18

Eubanks v. Louisiana, 356 U.S. 584, 585 (1958) .......16,25
Evers v. Jackson Municipal Separate School District,

328 F.2d 408 (5th Cir., 1964) ............................... .....16, 27

PAGE



Ill

Fayne v. County Board of Education of Tipton Co.,
Civ. No. C-65-274 (W.D. Tenn. 1965) ........................  20

Franklin v. County School Board of Giles County,
242 F.Supp. 371 (W.D. Va. 1965) ...........15,16,17,19,22,

26,27, 29, 30, 31

Gilliam v. School Board of Hopewell,------U.S. --------,
15 L.ed.2d 187 (1965) .................................................... 18

Green v. School Board of City of Roanoke, Va., 304 
F.2d 118 (4th Cir. 1962) ..............................................17, 29

Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965) ............. 18

Lombard v. Louisiana, 373 U.S. 267 (1963) ...............16,29

Meredith v. Fair, 305 F.2d 343 (5th Cir. 1962) ...........16, 27

N.A.A.C.P. v. Button, 371 U.S. 415, 428 (1963) ...........  2
Norris v. Alabama, 294 U.S. 587 (1935) .....................16,25
North Carolina Teacher Association v. City of Ashe- 

boro Board of Education, Civ. No. C-102-G-65 (M.D.
N.C. 1965) .......................................................................  20

Peterson v. City of Greenville, 373 U.S. 244 (1963) ....16, 28 
Price v. Denison Independent School District, 348 F.

2d 1010 (5th Cir., 1965) ................................................  19

Reece v. Georgia, 350 U.S. 85 (1955) .........................16,25
Robinson v. Florida, 378 U.S. 153 (1964) .................. 16, 29
Rogers v. Paul,------ U .S .------- , 15 L.ed.2d 265 (1965) 18
Ross v. Dyer, 312 F.2d 191, 196 (5th Cir. 1953) .......16,26

Schware v. Board of Bar Examiners, 353 U.S. 232 
(1957) ........................................................................17,22,23

PAGE



IV

Shelton v. Tucker, 364 U.S. 479 (1960) .................... 17,22
Singleton v. Jackson Municipal Separate School Dis­

trict, 348 F.2d 729 (5th Cir., 1965) ..........................  18
Slochower v. Board of Higher Education, 350 U.S.

551 (1956) ................................................................17,22,23
Steward v. Stanton Independent School District, Civ.

No. 4052, W.D. Tex., Nov. 30, 1965, on appeal to 
Fifth Circuit (No. 23291) ............................................ 19

Torcaso v. Watkins, 367 U.S. 488, 495-96 (1961) ....17, 22

Wall v. Stanley County Board of Education, Civ. No.
140-S-65 (M.D. N.C. 1965) ..................... ..................  20

Watson v. City of Memphis, 373 U.S. 526 (1963) ....17,29 
Wieman v. Updegraff, 344 U.S. 183 (1952) ................ 17,22

S tatutes

Civil Rights Act of 1964 ............................................... 2

42 U.S.C. Section 2000(d), et seq...................................  18

42 U.S.C. Section 2000h-2 ................................................ 20

PAGE

Other  A uthorities

Georgia Teachers and Education Association, Atlanta, 
Georgia, Selected Cases Involving Subjective Per­
sonnel Practices Utilized in Dismissing Educators 19

H.E.W., General Statement of Policies Under Title VI 
of the Civil Rights Act of 1965 Respecting Desegre­
gation of Elementary and Secondary Schools, April 
1965 19



V

National Education Association, 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 Certified to Teach in 17 States, 
December 1965 ............................................................. 19, 21

North Carolina Teachers Association, Raleigh, North 
Carolina, Teacher Dismissals ......................................  19

Memorandum of U.S. Commissioner of Education, 
June 9, 1965 ...................................................................  19

Ozmon, The Plight of the Negro Teacher, The Ameri­
can School Board Journal, pp. 13-14, September 
1965 ...................................................    19

President’s Speech, N.E.A. Convention, July 2, 1965,
New Y o rk .........................................................................  18

Southern Education Reporting Service, Statistical 
Summary of School Segregation—Desegregation in 
Southern and Border States (1965-66)

PAGE

18



liniteii GLmtrt nf Appeals
F or the  E igh th  C ircuit 

No. 18243 
C ivil

C lem ent S. S m ith  and T he A rkansas T eachers A ssocia­
tion , I n c ., a non-profit association organized under the 
laws of the State of Arkansas, and M argaret J . S anders, 
plaintiff-intervenor,

—v.-
Appellants,

T he B oard of E ducation of M orrilton S chool D istrict 
No. 32; D r . H . B . W h ite , F elver R owell, J ack B land , 
W. O. B yrd, W illiam  W offord, W ylie C ox, Directors of 
the said District; and T erry H um ble , Superintendent 
of Schools,

Appellees.

APPEAL FROM ORDER OF TH E U N ITED STATES DISTRICT COURT FOR 
TH E W ESTERN DISTRICT OF ARKANSAS, FORT SM IT H  DIVISION

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from a judgment of the United States 
District Court for the Eastern District of Arkansas, West­
ern Division, denying injunctive relief sought by plaintiffs 
and members of their class following their dismissal as 
teachers by the Morrilton School District No. 32.

The plaintiffs, two Negro school teachers and the 
Arkansas Teacher Association,1 sought injunctive relief

1 The Arkansas Teachers Association is an incorporated association 
(R . 133), representing 3400 Negro teachers in the State, including all



2

against the Board’s teacher hiring and assignment policies 
under which the principal and all seven Negro teachers 
formerly assigned to the Sullivan High School were re­
fused contracts and dismissed after Negro students chose 
to attend the desegregated Morrilton High School. Alleg­
ing that inexperienced white teachers would be hired and 
assigned to the Morrilton High School, plaintiffs asserted 
their dismissal was motivated by race and sought injunc­
tive relief, damages and attorneys fees (R. 1-7).

The Board both moved to dismiss the complaint assert­
ing that plaintiffs lacked standing to initiate a class action 
(R. 9-10), and filed an answer admitting that plaintiffs had 
been employed in the system and had not been reemployed 
for the 1965-66 school year, and denying that their refusal 
to reemploy plaintiffs and the other dismissed Negro 
teachers constituted a violation of constitutional rights.

. *  *  *
At the trial, the Morrilton Board Superintendent, Terry 

Humble, reported that until June 1965 the system oper­
ated the Sullivan High School for about 166 Negro pupils 
in grades 7-12 (R. 43). A separate junior and senior high 
school was operated for white pupils (R. 43).

After receiving requests from Negro parents in January, 
1965, to desegregate the system and in an effort to comply 
with the Civil Rights Act of 1964 (R. 151), the Board, 
which had not previously taken any concrete action on 
school integration (R. 194), adopted and placed in effect 
a desegregation plan that for the 1965-66 school year 
offered pupils entering grades 7-12 a choice of either the 
Negro Sullivan or white Morrilton High Schools (R. 152).

those dismissed in the Morrilton system (R . 138). Authority for the 
Association’s participation as a party in this litigation is found in 
Alston v. School Board, of City of Norfolk, 112 F.2d 992, 997 (4th Cir. 
1940), cert, denied, 311 U.S. 693. Cf. N.A.A.C.P. v. Button, 371 U S  
415, 428 (1963).



3

When all but four Negro pupils requested a desegregated 
education (R. 153, 159), the Board decided to grant their 
requests, close the Sullivan High School (R. 154), and 
dismiss the Negro teachers (R. 43, 83).

No effort was made to compare the qualifications of the 
dismissed Negro teachers with white teachers retained in 
the system, although all Negro teachers at Sullivan met 
the basic qualifications for a State Teachers License, and 
all had been recommended for reemployment and tenta­
tively rehired by the Board for the 1965-66 school term 
as early as February 1965 (R. 44).

Nevertheless on May 28, 1965, before any of the Negro 
teachers had actually received a contract, the Superin­
tendent advised them both by letter and personally that 
the Sullivan High School would be closed and that they 
would be dismissed (R, 45-46). At the time of their dis­
missal, the Superintendent indicated that he did not recall 
a single vacancy at the white high school (R. 47, 160), but 
later conceded under cross examination that vacancies 
generally occurred after the end of the school year.

Q. Now, isn’t it true that you knew that some va­
cancies would occur in your white teaching staff before 
September 1965 on May 28th? A. No, sir, I didn’t 
know that.

Q. But had that not happened the previous year? 
A. Yes, sir.

Q. And that happened in each other year. A. 
That’s right.

Q. And didn’t you reasonably expect that this would 
happen? A. Yes, I ’d say I had reason to expect it 
would happen.

Q. Did you tell these Negro teachers that there may 
be some vacancies and they could apply for them? A. 
No, I didn’t (R. 206).



4

Subsequently, 13 white teachers resigned or retired, 
which group was replaced by 13 white teachers (R. 47). 
None of the dismissed Negro teachers was advised of the 
vacancies at the white school or informed that they were 
free to make application for those positions (R. 47-48).

The Superintendent defended his failure to advise the 
Negro teachers that they could apply by stating that they 
knew the “customs and policies” (R. 180), and he assumed 
that they had read the Board’s desegregation plan. But 
the system had never before dismissed a teacher because 
of desegregation (R. 213), and the desegregation plan as 
published in a local newspaper merely committed the Board 
to desegregate faculty meetings and in-service workshops 
during the 1965-66 school year, and to desegregate teachers 
and professional staff “as expeditiously as possible” (R. 
163).

Moreover, on May 28th, the Superintendent, after in­
forming the Negro principal that he would be retired 
because he was 65 (R. 158), met with the Negro teachers 
and made it clear that they could not expect to be rehired 
in the system. Plaintiff Margaret Sanders testified the 
Superintendent told them:

“ . . . our services would be discontinued; and so I said 
to him, you don’t tell me; I asked him does that mean 
that we really didn’t have a job for the coming year; 
he says yes, Miss Sanders; and he said he was sorry; 
and I asked the question, and then I said you don’t 
tell me you have employed your teachers and didn’t 
see fit to give us a job; he says yes, Miss Sanders; 
and I says I would have felt better if you had just 
given one person or somebody, if it wasn’t me, if you 
had given some of us a job in the school, in your



5

school. I asked him what did he have to offer; he 
said nothing;” (R. 92-93).

Plaintiff Smith offered similar testimony (R. I l l )  which 
the Superintendent later confirmed:

Q. Isn’t it true that at this May 28th meeting some 
of the Negro teachers there asked you what you had 
to offer them? A. I think that’s correct.

Q. And that you told them that you didn’t have 
anything to offer them? A. Yes, sir (R. 206).

Plaintiffs Sanders and Smith also testified the Superin­
tendent told them that at this particular time, Negro teach­
ers could not be utilized because white students would not 
adjust to them in the classroom (R. 93, 111, 124). Ques­
tioned as to whether the Board’s action didn’t correspond 
to a pattern in the Southern states, the Superintendent 
reportedly stated that he didn’t know of any Southern 
system that had employed Negro teachers (R, 93, 102, 104). 
He denied that the fear white students would have adjust­
ment difficulties led to the dismissal of Negro teachers (R. 
159), and did not recall making such a statement although 
conceding that two witnesses had so testified, and that both 
local and state newspapers had attributed the statement 
to him (R, 159, 217-18).

The Superintendent did state that in his view teachers 
completing Negro colleges in the State were less well 
trained than teachers who graduated from the State’s 
white schools (R. 161, 197-98), and that white teachers 
have a superior command of the English language (R. 199) 
and thus are better able to communicate (R. 200). He 
stated that differences in speech patterns and “environ­
ment” would also create difficulties for white students with



6

a Negro teacher (R. 200), and expressed as his “personal 
opinion” (R. 202) that even a recently graduated white 
teacher with no experience was superior to the dismissed 
Negro teachers, because her speech patterns are more like 
those of white people (R. 201-02).

Based substantially on such factors, the Superintendent 
testified unequivocally that none of the dismissed Negro 
teachers was as qualified to fill the vacancies at the Mor- 
rilton High School as the white teachers he employed (R. 
160), even though he conceded that several of the Negro 
teachers had “paper qualifications” as good as or better 
than those held by the white teachers.

Superintendent maintained that under Board policies, 
the dismissed Negro teachers’ positions were abolished, 
and they had to compete with new applicants for the 
vacancies that developed (R. 170). Incumbent teachers 
at Morrilton High School were not affected, however, and 
were viewed as a team the morale of which would be 
adversely affected if some were discharged in order to 
make room for others (R. 171). It appears that this policy 
did not rest on precedent established during several school 
closings and consolidations that had occurred in past years, 
and while some teachers were dismissed, in most cases, 
displaced faculty were reallocated throughout the school 
system (R. 166-70). Thus, in the most recent school 
closing and consolidation which occurred in 1959, students 
and teachers from the closed Central Ward School were 
transferred to Northside Elementary School (R. 170). In 
1956, six teachers were involved in consolidations, of whom 
five were retained and one resigned (R. 169). These 
teachers did not have to make new applications for jobs 
(R. 212-13). Nor had plaintiffs had to file applications 
after their first year in the system (R. 210-11).



7

Although plaintiffs contended the Board had dismissed' 
them because of their race and without regard to their 
qualifications, an effort was made at the trial to compare 
qualifications with those of the white teachers subsequently 
hired.

First, dismissed Negro English teacher Geneva Bras­
well’s qualifications were compared with those of Gloria 
J. King and Katherine Draper, both white. Miss King 
was hired to teach English and speech and Miss Draper 
to teach English. All three teachers have bachelor’s de­
grees, however, Mrs. Braswell is an English major with 
fourteen years teaching experience in Morrilton and 22 
graduate school credits (R. 49), while neither Miss King 
nor Miss Draper has any teaching experience other than 
her practice training and neither attended graduate school 
(R. 48-49). Moreover, Miss Draper’s college major was 
physical education (R. 49), although she has an “honor” 
in English (R. 53). Nevertheless, the Superintendent felt 
the Negro teacher’s qualifications are inferior to those of 
either Katherine Draper or Gloria King (R. 51, 177).

Mr. T. E. Patterson, executive secretary of Plaintiff 
Arkansas Teachers Association (R. 132), and a former 
school superintendent, disagreed with the Superintendent, 
offering his opinion that Mrs. Braswell by reason of her 
experience and graduate training was the best qualified 
teacher (R. 135).

Significantly, while the Superintendent claimed that sal­
ary scales were identical for white and Negro teachers 
(R. 185), Mrs. Braswell, in her fourteenth year as a 
teacher, received a salary of $3,620 for the 1964-65 school 
year, while the two white teachers with no experience



8

and no graduate work were each hired at a salary of 
$3,850 for the current school year (R. 49).

Second, Negro plaintiff intervenor and math teacher 
Margaret Sanders’ qualifications were compared with those 
of Paul Cody and Richard Reed, both white. Cody and 
Reed were hired during the summer of 1965, Cody to 
teach math and drive a school bus, and Reed to teach 
physics and mathematics (R. 53). Miss Sanders holds a 
bachelor’s degree with a math major, the equivalent of a 
Master’e degree in math from the University of Arkansas 
and has attended other predominantly white universities 
(R. 88-89). She has thirty-four years teaching experience 
(R. 54). Cody, on the other hand, holds only a bachelor’s 
degree, has no graduate training and no teaching experi­
ence (R. 53). Reed has no graduate training although he 
has 2% years teaching experience (R. 53). The Superin­
tendent testified that Miss Sanders’ “paper” qualifications 
are not inferior to those of Cody or Reed, nor to those 
of white teachers then teaching in the high school (R. 55), 
and that her qualifications in math were adequate for 
either of the white high schools (R. 56). But he did not 
advise Miss Sanders that she could apply for a job in 
one of the white high schools (R. 55), and explained hir­
ing Cody and Reed in preference to Miss Sanders by 
saying that they were able to perform additional tasks, 
coaching and bus driving, that Miss Sanders was unable 
to perform (R. 161). Mr. Reed will be paid $5,095 for the 
1965-66 school year, of which $945 is bus driving salary. 
Mr. Cody will receive $4,300 (R. 53). Miss Sanders re­
ceived $3,620 for the last year she taught (R. 55), and 
had she been rehired as a math teacher would have been 
paid $4,270 for what would have been her thirty-fifth year 
of teaching (R. 101). Teachers Cody and Reed also re­
ceived more than plaintiff Smith who was paid $3,820 for 
the 1964-65 school year (R. 57).



9

While not considering her as qualified as the white teach­
ers hired to fill vacancies in the Morrilton junior and 
senior high schools, the Superintendent, following Miss 
Sanders intervention in this suit, attempted to place her 
in the Negro elementary school by sending her a signed 
contract and asking that she report for duty (R. 165). 
This action was taken (R. 164-65), although Miss Sanders 
had not applied for this job (R. 102) and did not hold a 
teaching certificate for elementary schools although quali­
fied to secure certification (R. 165). Miss Sanders refused 
the job (R. 101, 165-66) because, as a high school math 
teacher, she viewed the elementary school offer as a de­
motion (R. 102). She felt the Board had not considered 
her qualifications, and that when her high school was inte­
grated, she should have been integrated too (R, 101).

Third, the qualifications of Negro plaintiff and science 
teacher Clement Smith were compared with those of Phillip 
Fagan who was hired during the summer of 1965 to teach 
science in the white high school. Smith’s qualifications 
were also compared with those of Cody and Reed, reviewed 
above, for the position of math teacher. Smith holds a 
bachelor’s degree with a major in chemistry, twenty-six 
graduate school credits and seven years teaching experi­
ence (R. 56-57). Fagan holds a bachelor’s degree with a 
social science major, six graduate credits and only one 
year’s teaching experience (R. 56). The Superintendent 
acknowledged Fagan’s paper qualifications as a science 
teacher were inferior to Smith’s and admitted that Cody 
and Reed’s qualifications to teach math were also inferior 
to Smith’s (R. 57). Plaintiffs’ witness, Mr. T. E. Patterson, 
agreed that Smith’s qualifications as a science teacher 
would be superior to Fagan’s (R. 136).

However, the Superintendent at another point stated 
that in his opinion Smith was not superior to or even



10

equal to the white teachers he employed (R. 75). While 
Smith had been highly recommended and tenatively re­
hired to teach in the Sullivan School (R. 180-81), at the 
trial, the Superintendent deemed him not “qualified to 
teach in any position in the Morrilton School District” (R. 
171). This opinion was based on prior arrests for driving 
while under the influence of alcohol (R. 115-16, 187) and 
on alleged problems with class decorum which the Super­
intendent had observed (R. 118, 175-76.) The Superin­
tendent also cited a problem Smith had with his creditors 
as a factor in his decision (R. 181, 187). Smith denied 
that he could not control his class (R. 118), and, with re­
gard to drinking, testified that he was a moderate drinker 
but never did so on the job (R. 126). Miss Sanders who 
worked with Smith seven years testified that she had never 
seen Smith intoxicated at anytime—on or off school prem­
ises (R. 108-09). She further testified about Mr. Smith:

“My opinion is that he is wonderful, he is well qualified, 
the students love him and he did a wonderful job in 
the science department, he excelled all other teachers 
that had taught in the science department of the 
L. W. Sullivan High School.” (R. 103).

Fourth, the “paper” qualifications of dismissed Negro 
social science teacher Phillip O. Jones were compared 
with those of Miss Elaine Houston, Mrs. Thetus Stell and 
Mrs. Iva Robertson who were hired during the summer of 
1965 to teach geography and social studies in the white 
junior and senior high schools (R. 58). Jones has a 
bachelor’s degree with a social science major, a high school 
teaching certificate and one year’s teaching experience 
(R. 61).

Miss Houston has a bachelor’s degree with an elemen­
tary education major, an elementary school teaching cer­



11

tificate, six year’s teaching experience and twelve graduate 
credits (E. 58). Mrs. Stell holds a bachelor’s degree with 
an elementary education major, a master’s degree in 
elementary education, an elementary school teaching cer­
tificate, and three year’s teaching experience (R. 59). Mrs. 
Robertson has a bachelor’s degree with a major in elemen­
tary education, an elementary certificate, teaching expe­
rience limited to substitute teaching, and no graduate 
training (R. 60-61).

The Superintendent testified that, in his opinion, Mrs. 
Stell’s qualifications were superior to Jones because she 
has more hours in history than he has reported and so­
cial studies, and some gradute hours (R. 62-63). He 
also stated that Mr. Jones’ qualifications to teach geog­
raphy are inferior to those of Mrs. Robertson “because 
she has more teaching experience than Mr. Jones . . .” 
(R. 64).

Mr. T. E. Patterson testified that Mrs. Robertson would 
be the “ least qualified” of the four persons here being 
discussed to teach social science in either a junior or 
senior high school because of her elementary education 
major, because of her elementary certification and because 
her record doesn’t reflect any experience in the major 
field (social studies) (R. 137). Mr. Patterson also testified 
that in his opinion Miss Houston would be the “next least 
qualified person to teach social science.” (R. 137). He 
stated: “not having a transcript, I would say she does 
not have a secondary certificate and would not qualify; 
on this I would say she is not a qualified teacher.”  Also, 
“ she doesn’t have any graduate work in social studies.” 
(R. 137-38).

The Superintendent stated that the District employed 
a white teacher named Miss Robertha Jo Lackey to teach



12

history in the white senior high school just two days be­
fore trial of this case, indicating that she is a beginning 
teacher without any prior teaching experience (R. 48, 195). 
He did not know what her grades were, nor whether she 
was certified, and was unable to provide other data about 
her record (R. 195). However, even without this informa­
tion, he acknowledged that Miss Lackey was not superior 
“ in qualifications” to Jones (R. 196), but felt that she 
was or would be a “ superior teacher” to Jones (R. 196). 
The reasons given by the Superintendent for this con­
clusion were: (1) “ She can understand some of the prob­
lems of the students better” because she graduated from 
a predominantly white college (R. 197); (2) her “ com­
munication is superior” (R. 197) in that she and other 
graduates of her college “handle the English language 
superior to most others [Negroes] (R. 199); (3) her “ en­
vironment” (R. 200-02), which enables white teachers to 
understand the problems of white pupils better than Ne­
gro teachers could (R. 182); and (4) her “ speech pattern” 
(R. 201) is more like that of white people (R. 202).

Fifth, the qualifications of the dismissed Negro librarian, 
Mrs. Hymon King, were discussed although the district 
did not later hire a librarian. Mrs. King held a bachelor’s 
degree and had training and experience as a librarian. 
She also had twenty-seven years’ teaching experience (R. 
70-71). The Superintendent stated that she was a qualified 
librarian who was better qualified than the white junior 
high librarian who “was employed prior to the time that 
these teachers were dismissed” (R. 71). It appears how­
ever that the white librarian was employed in February, 
1965 for the junior high school job at the same time, and 
on the same “tentative” basis, as Mrs. King was employed 
to the position at Sullivan (R. 71-72).



13

The Superintendent stated that during the summer of 
1965, Mrs. King was employed to teach at the Negro 
elementary school but later declined the assignment (R. 
164).

After both Mrs. King and Miss Sanders declined em­
ployment at the Negro elementary school, the Superin­
tendent filled the position by employing the Negro high 
school principal, Hymon King, who was “ retired” at the 
close of the 1965 school term (R. 158). He stated that he 
“ suspected” Mr. King was qualified to be a high school 
teacher (R. 214), but admitted that he was subjecting 
the Negro elementary pupils “ to an inferior teacher.” 
(R. 213).

Sixth, the three other dismissed Negro teachers were 
Mr. King, discussed above, Mr. John M. Sutton, an agri­
culture teacher, and Miss Helen Oliver, a home economics 
teacher. Their paper qualifications were not compared 
with those of any particular white teacher. Sutton, how­
ever, holds both a bachelor’s and a master’s degree in 
Agriculture, has twenty-two years teaching experience (R. 
72), and was recommended and rehired by the Super­
intendent for reemployment during the 1965-66 school 
term (R. 73). The Superintendent testified, however, that 
Mr. Sutton was “not qualified to teach in any school” 
because of his “personal appearance” (R. 72-73), while 
the agriculture teacher in the white school had thirty 
years experience, a bachelor’s and master’s degree, and 
was deemed by the Superintendent one of the most out­
standing agriculture teachers in the state (R. 74). Al­
though Mr. Sutton was “academically prepared” to teach 
science, the Superintendent did not compare his qualifica­
tions with those of any white science teachers . . . “be­
cause of his personal appearance.” (R. 74).



14

While reporting that if Negro elementary children choose 
to enroll in desegregated schools for the 1966-67 school 
year, he would advise Negro teachers that they must 
apply for vacancies in such schools (R. 82), there was 
no indication that the procedures leading to the dismissal 
of Negro high school teachers would be altered. The jobs 
of Negro elementary school teachers will be abolished, and 
no voluntary assignments of Negro teachers to the deseg­
regated elementary schools will be made (R. 83). More­
over, the unavailability of white teachers to teach in Ne­
gro schools would be a factor in selecting teachers (R. 
181-82), as will be the Superintendent’s belief that Negro 
teachers are less capable of teaching white children than 
white teachers (R. 182-83).

^  *- *
On October 8, 1965, the district court entered an opinion 

acknowledging that school boards are bound by the Four­
teenth Amendment’s equal protection clause (R. 31), but 
suggesting that school integration poses an economic threat 
to Negro school teachers as a cl^ss which does not concern 
the courts (R. 32). He ruled that:

“ If a Negro school is closed at a time when there are 
no vacancies in the remaining schools, the Constitu­
tion does not require the school board to reevaluate 
the entire faculty, or to replace white teachers with 
Negroes affected by the closing, or to solicit affirma­
tively Negro applicants for jobs which subsequently 
become open.” (R. 36).

Assuming without deciding that the Fourteenth Amend­
ment affords some protection to Negro teachers where 
faculties are affected by school desegregation (R. 32-33), 
the court found no constitutional violation resulted from 
the Board’s application of its school consolidation policy 
(defined as absorbing teachers from closed schools where



15

such could be done without displacing other teachers) 
to the situation where a school is closed as a result of 
desegregation (R. 33); and while conceding that prior to 
desegregation, Negro teachers were eligible for employ­
ment only in Negro schools (R. 33), further found that 
Negro teachers lost their jobs not because of their race, 
but because they constituted the faculty of a formerly all- 
Negro school.

Rejecting plaintiffs’ contention that the Fourteenth 
Amendment required evaluation of their qualifications with 
those of teachers retained in the system, the court refused 
to follow cases where such evaluation had been required2 
or approved,3 suggesting such a policy would give Negro 
teachers tenure rights not possessed by white teachers 
(R. 34). Under this view of the case, the court found 
it unnecessary to review the testimony comparing qualifi­
cations of Negro teachers with the newly hired white teach­
ers (R. 35).

Finally, the couit noted that only two Negro teachers 
displayed any interest in the proceedings, and that neither 
of these suffered any financial loss as a result of the 
Board’s action (R. 35).

From the October 8, 1965 order dismissing the complaint 
(R. 37) plaintiffs noticed an appeal on the same date 
(R. 38).

2 Franklin v. County School Board of Giles Co., 242 F  Su d d  371 
(W .D . Va. 1965).

3 Brooks v. School District of Moberly, Mo., 267 F  2d 733 
1959).

(8th Cir.



16

Statement of Points to Be Argued 

1
The court below erred in failing to find on the record 

in this case that plaintiffs’ dismissal was racially motivated 
and violated constitutional rights protected by the Four­
teenth Amendment.

Brooks v. School District of Moberly, Mo., 267
F.2d 733 (8th Cir. 1959);

Christmas v. Board of Education of Harford 
County, Md., 231 F.Supp. 331 (D.C. Md. 1964); 

Dove v. Parham, 282 F.2d 256 (8th Cir. 1960); 
Franklin v. County School Board of Giles County, 

242 F.Supp. 371 (W.D. Va. 1965);
Adler v. Board of Education, 342 U.S. 485, 493 

(1952);
Alston v. School Board of City of Norfolk, 112 

F.2d 992, 997 (4th Cir. 1940);
Avery v. Georgia, 345 U.S. 559 (1953);
Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963); 
Bryan v. Alston, 148 F.Supp. 563, 567 (E.D.S.C. 

1957) (dissent);
Cramp v. Board of Public Instruction, 368 U.S. 

278 (1961);
Evers v. Jackson Municipal Separate School 

District, 328 F.2d 408 (5th Cir. 1964); 
Eubanks v. Louisiana, 356 U.S. 584, 585 (1958); 
Lombard v. Louisiana, 373 U.S. 267 (1963); 
Meredith v. Fair, 305 F.2d 343 (5th Cir. 1962); 
Norris v. Alabama, 294 U.S. 587 (1935); 
Peterson v. City of Greenville, 373 U.S. 244 

(1963);
Reece v. Georgia, 350 U.S. 85 (1955);
Robinson v. Florida, 378 U.S. 153 (1964);
Ross v. Dyer, 312 F.2d 191, 196 (5th Cir. 1963);



17

Scliware v. Board of Bar Examiners, 353 U.S. 
232 (1957);

Shelton v. Tucker, 364 U.S. 479 (1960);
Slochower v. Board of Higher Education, 350 

U.S. 551 (1956);
Torcaso v. Watkins, 367 U.S. 488, 495-96 (1961);
Watson v. City of Memphis, 373 U.S. 526, (1963);
Wieman v. Updegraff, 344 U.S. 183 (1952).

2

The court below erred in failing to find that the Four­
teenth Amendment forbids arbitrary dismissal of all Ne­
gro teachers assigned to a segregated school closed as 
part of the desegregation process where,

(a) the qualifications of such teachers were not evaluated 
by valid and ascertainable standards with those of teachers 
retained in the system, and

(b) only the dismissed Negro and not incumbent white 
teachers were required to apply and compete with new 
white applicants seeking vacant teaching positions.

Brooks v. School District of Moberly, Mo., 267
F.2d 733 (8th Cir. 1959);

Cooper v. Aaron, 358 U.S. 1, 16 (1958);
Franklin v. County School Board of Giles County,

242 F.Supp. 371 (W.D. Va. 1965);
Bradley v. School Board of Richmond, 317 F.2d 

429 (4th Cir. 1963);
Calhoun v. Latimer, 321 F.2d 302 (5th Cir. 1963), 

vacated 377 U.S. 263 (1964);
Green v. School Board of City of Roanoke, Va., 

304 F.2d 118 (4th Cir. 1962).



18

ARGUMENT

Preliminary Statement

The ever increasing reluctance of the federal judiciary 
to condone further delay in the complete desegregation of 
public school systems as mandated more than a decade ago 
in Brown v. Board of Education, 347 TJ.S. 483; 349 U.S. 
294 ;4 5 together with increasing implementation of the 1964 
Civil Rights Act,6 have resulted in a small, but noticeable 
increase in pupil desegregation6 and, as a result, increasing 
attention on faculty desegregation. As Negro students ob­
tain transfers from all-Negro to formerly all-white schools, 
and the formerly all-Negro schools are closed or integrated, 
Negro teachers in Arkansas as elsewhere in the South 
(R. 146) have been summarily dismissed rather than trans­
ferred along with Negro students or employed and as­
signed without regard to race. This policy has alarmed the 
President of the United States,7 concerned the United

4 Rogers v. Paul, -------- U.S. --------, 15 L.ed.2d 265 (1 9 6 5 ); Bradley
v. School Board of Richmond, -------- U .S. -------- , 15 L.ed.2d 187 (1 9 6 5 );
Gilliam v. School Board of Hopewell, -------- U .S. --------, 15 L.ed.2d 187
(1 9 6 5 ); Kemp  v. Beasley, 352 F.2d 14 (8th Cir., 1 9 6 5 ); Singleton v. 
Jackson Municipal Separate School District, 348 F.2d 729 (5th Cir., 
1 9 6 5 ); Dowell v. School Board of Oklahoma City, 244 F . Supp 971 
(W .D .O kla. 1965).

5 42 U .S.C. Section 2 0 00 (d ), et seq.

6 See Southern Education Reporting Service, Statistical Summary of 
School Segregation— Desegregation in Southern and Border States (1965- 
66).

7 Speech, N .E .A . Convention, July 2, 1965, New York. The President 
said:

“ 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 o f 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.”



19

States Department of Health, Education and Welfare,8 
been the subject of intensive studies by national teacher 
groups,9 and generated a growing number of lawsuits.10

8 In addition to the Department’s General Statement of Policies Under 
Title VI of the Civil Rights Act of 1965 Respecting Desegregation of 
Elementary and Secondary Schools, published in April 1965, the State­
ment, inter alia, requires the desegregation of school faculties (the H .E .W . 
Policies were adopted by the Fifth Circuit as minimum school desegrega­
tion standards and published as an appendix to Price v. Denison In­
dependent School District, 348 F.2d 1010 (5th Cir. 1 9 6 5 )) . The United 
States Commissioner of Education in response to numerous complaints 
that Negro teachers were being dismissed or released by school boards 
seeking to avoid faculty desegregation, published a memorandum on 
June 9, 1965, and distributed same to his staff and to the chief school 
officers in every State. H e reported that the complaints were being in­
vestigated, that the policies or practices complained o f were in direct vio­
lation of Title V I  o f the 1964 Civil Rights Act, and the Generel State­
ment and Policies published in April 1965. The memorandum concluded:

“ The statement of policies, as you know, requires desegregation 
plans to contain provisions concerning desegregation of school facul­
ties. A  school district cannot avoid the requirement that it desegregate 
its faculties by discriminatorily dismissing or releasing its Negro 
teachers. Nor can a freedom o f choice plan be deemed ‘free’ i f  in­
direct pressure is placed on Negro students to forego rights under 
such a plan by threatening Negro teachers with loss o f their jobs, 
should Negro students leave Negro schools to attend desegregated 
schools?”

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 Certified to Teach in 17 States”  De­
cember 1965; North Carolina Teachers Association, Raleigh, North Caro­
lina “ Teacher Dismissals” ;  Georgia Teachers and Education Association, 
Atlanta, Georgia, “ Selected Cases Involving Subjective Personnel Prac­
tices Utilized in Dismissing Educators.”  See also, Ozmon, “ The Plight 
of the Negro Teacher” , The American School Board Journal, pp. 13-14, 
September, 1965.

10 Franklin v. County School Board of Giles County, 242 F . Supp. 371 
(W .D . V a. 1 9 6 5 ); Christmas v. Board of Education of Harford County, 
Md., 231 F . Supp. 331 (D .C . Md. 1 9 6 4 ); Buford v. Morganton City 
Board of Education, 244 F . Supp. 437 (W .D .N .C . 1 9 6 5 ); Chambers v. 
Hendersonville City Board of Education, 245 F. Supp. 759 (W .D .N .C . 
1965), on appeal to Fourth Circuit (No. 10 ,3 7 9 ); Steward v. Stan­
ton Independent School District, Civ. No. 4052, W .D . Tex., Nov. 30, 
1965, on appeal to Fifth Circuit (No. 2 3 2 9 1 ); Dean v. Gray— Supt.



20

The concern of the United States Department of Justice 
is reflected by its motion filed with this Court on January 
24, 1966, seeking leave to intervene as an appellant in 
this case. Exercising authority granted by Section 902 of 
the Civil Rights Act of 1964, 42 U.S.C. 2000h-2, the At­
torney General has certified this case as one of general 
public importance. The appropriateness of the Attorney 
General’s petition is evidenced by the similarity of the 
procedures followed by the Morrilton Board to those being 
utilized by a steadily increasing number of school systems 
all over the South. This process of pupil desegregation 
and teacher dismissal has recently been reported on in 
great detail by the National Education Association, which 
reviewed the problem in the following terms:

“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 
without a class is in many cases dismissed rather 
than being transferred to another school with a 
vacancy. When all the pupils attending small Negro 
schools are reassigned to previously white schools, 
principals as well as an increased number of teachers 
are often faced with the problem of relocation. The 
1964 summer crisis caused by the growing threat and 
the actual loss of positions brought a stream of pro-

Wagoner Oklah. Public Sells., Civ. No. 5833 (E .D . Okla. 1 9 6 5 ); Brooks 
v. School District of City of Moberly, Mo., 267 F.2d 733 (8th Cir. 1959).

The following cases have been filed, North Carolina Teacher Associa­
tion v. City of Asheboro Board of Education, Civ. No. C-102-G -65 (M .D . 
N.C. 1 9 6 5 ); Wall v. Stanley County Board of Education, Civ. No. 140- 
S-65 (M .D .N .C . 1 9 6 5 ); Dobbins v. County Board of Education of 
Decatur Co., Civ. No. 1608 (E .D . Tenn. 1 9 6 5 ); Fayne v. County Board 
of Education of Tipton Co., Civ. No. C-65-274 (W .D . Tenn. 1 9 6 5 ); 
Bonner v. Texas City Independent School District, Civ. No. 65-G-56  
(S .D . Tex. 1965).



21

tests and calls for assistance to the NEA’s Commis­
sion on Professional Rights and Responsibilities” 
(p. 7).

“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 
system—as the law would maintain—but rather as 
teachers for Negro schools” (p. 13).11

The deprivation of constitutional rights threatened by 
these dismissals warrants careful scrutiny by this Court 
for only by such inquiry can the constitutional rights of 
Negro teachers be assured. It is from this perspective 
that the issues raised by this case must be viewed. It 
is with this background that the contested dismissals 
characterized by the lower court as an economic but not 
a constitutional threat to Negro teachers (R. 32) must be 
examined.

11 “Report of Task Force Appointed to Study the Problems of Dis­
placed School Personnel Related to School Desegregation,”  see note 
9, supra. The study was conducted under the auspices o f the National 
Education Association and financed jointly by the Association and a grant 
from the United States Office of Education, Department of Health, Edu­
cation and Welfare.



22

I.

Plaintiffs, Under Generally-Applied Rules of Proof 
in Racial Discrimination Cases, Sufficiently Proved 
Their Dismissal by the Board Was Racially Motivated 
and Violated Constitutionally-Protected Rights.

The law is clearly established that public servants or 
employees may not, consistent with the Constitution, be 
deprived of the right to pursue their profession on the 
basis of some frivolous, arbitrary or racially discriminatory 
ground. Cramp v. Board of Public Instruction, 368 U.S. 278 
(1961); Torcaso v. Watkins, 367 U.S. 488, 495-96 (1961); 
Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); 
Slochower v. Board of Education, 350 U.S. 551 (1956) j 
Wieman v. Updegraff, 344 U.S. 183 (1952). Negro teachers 
seeking relief against interference with their professional 
careers based on race frequently have been included within 
the protection of these rights. Shelton v. Tucker, 364 U.S. 
479 (1960); Alston v. School Board of the City of Norfolk, 
112 F.2d 992 (4th Cir. 1940); Bryan v. Alston, 148 F. Supp. 
563, 567 (E.D.S.C. 1957) (dissent).

This Court has clearly indicated that the scope of con­
stitutional protection encompasses Negro teachers, pro­
tecting them from arbitrary, unreasonable, or racially moti­
vated dismissal during the transition to desegregated 
schools. Brooks v. School District of City of Moberly, Mo., 
267 F.2d 733, 740 (8th Cir. 1959). See also, Franklin v. 
County School Board of Giles County, 242 F. Supp. 371 
(W.D.Va. 1965); Christmas v. Board of Education of Har­
ford County, 231 F. Supp. 331 (D.Md. 1964).

Conceding that certain definite standards or criteria 
are permissible, Adler v. Board of Education, 342 U.S. 485, 
493 (1952), officers of a state, in applying such standards,



23

“ cannot exclude an applicant when there is no basis for 
their finding that he fails to meet these standards or when 
their action is invidiously discriminatory.” Schware v. 
Board of Bar Examiners, supra, at 239.

Thus, having the affirmative burden to accord equal 
protection and due process to Negro teachers, a school 
board which, in the process of desegregating its system, 
closes a Negro school and dismisses the whole faculty 
should carry the affirmative burden of showing this result 
was not racially motivated and that the Negro teachers 
dismissed were replaced by teachers judged superior by 
objective and readily measurable standards. Cf. Schware 
v. Board of Bar Examiners, supra; Slochower v. Board 
of Education, supra; Brooks v. School District of City of 
Moherly, Mo., supra at 740.

On this record, however, it is perfectly clear that the 
plaintiffs and the other faculty members of the abandoned 
Negro high school were dismissed without any thought of 
offering them teaching positions in the desegregated high 
schools. Having determined to close the Negro School, the 
Superintendent “ retired” the principal (R. 158) and an-, 
nounced to the Negro faculty that their services were 
discontinued (R. 92). He told those who asked that he 
had no positions to offer them (R. 93, 206) even though, 
based on past experience, he expected vacancies to occur 
in the desegregated high schools (R. 206). When 13 white 
teachers later resigned, they were replaced by 13 white 
teachers, all of whom were new to the system, and many 
of whom had qualifications clearly inferior to the dismissed 
Negro teachers. 'While maintaining on one hand that 
Board policies precluded consideration of the dismissed 
Negro teachers (R. 170), the Superintendent contends that 
he did weigh their qualifications against those of the new 
applicants (R. 163). Placed under the Superintendent’s



24

ever-changing measure of values, the Negro teachers, each 
of whom he had tentatively rehired for the Negro school 
only a few months before (R. 44), were found to be in­
ferior to white applicants (R. 160).

The Board, of course, denies that race played a part in 
the dismissals, but both plaintiffs testified (R. 93, 111, 124), 
and state and local newspapers quoted the Superintendent 
as stating that Negro teachers could not at this time be 
successfully placed in classrooms with white students (R. 
159, 217-18). The Superintendent was unable to recall 
making such statements, but provided a wealth of testi­
mony that reflects this point of view. He believes that 
even when they possess more training, experience and 
specific teaching skills, Negro teachers are inferior to white 
teachers in general education (R. 161, 197-98), command 
of the English language (R. 199), and ability to com­
municate (R. 200). Questioned by the Board attorney as 
to factors he deems significant with regard to the general 
ability of a Negro teacher to teach white students or a 
white teacher to teach Negro students:

A. One of the major things that always comes into 
consideration is environment. White teachers do not 
understand the problems of Negro students, and it’s 
true the other way, the Negro teachers do not under­
stand many of the problems of the white students 
as do teachers of that particular race.

Q. In your judgment do you have Negro teachers 
teaching in the elementary schools at Morril who do 
a superior job of instruction to the Negro students 
in their classes over what a typical white teacher 
could do? A. Yes, sir.

Q. Does that relate in any way to the communica­
tion, to the ability of the teacher to communicate with 
the child? A. Yes, sir, it does.



25

Q. And tlie ability of the teacher to establish rapport 
of the child! A. Yes, sir.

Q. Within the framework of these practical situa­
tions that you have outlined do you plan to employ 
teachers from now on in the Morrilton School District 
on the basis of selecting the most qualified available 
applicant for every job without regard to race! A. 
Yes, sir, that is correct. (E. 182-83). (emphasis 
added).

Based on the Superintendent’s “ practical situations” cri­
teria, appellants submit that it is impossible to select 
teachers without regard to race and without violating fun­
damental equal protection standards. Clearly, the use of 
such criteria in the context of this case, required closer 
judicial scrutiny than the lower court’s opinion indicates 
it received.

Traditionally, where racial discrimination is charged, 
courts have required more than mere pious denials of racial 
bias to absolve state officials alleged to have violated Four­
teenth Amendment rights. In criminal cases where racial 
discrimination in jury selection is alleged, federal and state 
courts, upon a showing that Negroes are eligible but have 
not been chosen, lay on the State the burden of proving 
jury discrimination does not exist. See Eubanks v. Louisi­
ana, 366 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). Without such a rule, even 
the most flagrant instances of racial discrimination in jury 
exclusion would remain beyond the remedy of the courts 
and the Constitution. Norris v. Alabama, supra, at 598.

The court below found that “a preponderance of the 
evidence”  (R. 33) indicated that the application of long 
standing personnel practices rather than invalid racial con­



26

siderations were involved in the Board’s dismissal of Negro 
teachers and hiring of white teachers for all vacancies in 
the desegregated high schools. Such a finding ignores the 
lesson contained in several racial discrimination cases, the 
effect of which is that even clearly valid administrative 
rules and procedures must not be followed if they effect a 
discriminatory result. Dove v. Parham, 282 F.2d 256 (8th 
Cir. 1960); Ross v. Dyer, 312 F.2d 191, 196 (5th Cir. 1963). 
More important, the finding reflects acceptance of the 
Board’s denial that the dismissals were based on race, 
which denial flies in the face of the Superintendent’s fre­
quently evidenced concern that Negro teachers, by reason 
of education, environment, and speech patterns, are in­
capable of adequately serving in white classrooms.

To the extent that the Board denials of discrimination 
and the manifestations of bias reflected by the record are 
in conflict, the cases indicate that the issue must be resolved 
in plaintiffs’ favor.

Without express mention of the burden of proof prob­
lem, the district court in Franklin v. County School Board 
of Giles County, 242 F. Supp. 371, 374 (W.D.Va. 1965), 
carefully scrutinized and rejected the Superintendent’s 
basis for selecting teachers, where the teacher force was 
reduced from 186 to 179 teachers as a result of the closing 
of Negro schools, and the 7 teachers released were all 
Negroes. Similarly, in Christmas v. Board of Education 
of Harford County, 231 F. Supp. 331, 337 (D.Md. 1964) the 
court ruled: “ . . . the failure to hire a single Negro appli­
cant for the desegregated schools, although the qualifica­
tions of some of these applicants are obvious and admitted, 
justified plaintiffs’ skepticism, and requires that an injunc­
tion be issued prohibiting discrimination on the basis of 
race in hiring new teachers.”



27

Significantly, in both the Harford, and Giles County de­
cisions, supra, the district courts carefully noted that the 
abrupt reductions in the ranks of Negro teachers corre­
sponded with school desegregation efforts. Judicial con­
sideration of such past racially discriminatory practices 
and laws is crucial as evidenced in Meredith v. Fair, 305 
F.2d 343 (5th Cir. 1962); Bailey v. Patterson, 323 F.2d 201 
(5th Cir. 1963); Evers v. Jackson Municipal Separate 
School District, 328 F.2d 408 (5th Cir. 1964); and was par­
ticularly appropriate in the Harford and Giles County cases 
where the school board, did not immediately desegregate 
the schools, but delayed taking affirmative action until re­
quired by court order. Similar attention is appropriate 
here where the Board delayed initiation of school desegre­
gation for more than a decade until threatened with litiga­
tion or the loss of federal funds.

Immediate and good faith compliance with the Supreme 
Court’s desegregation order was an important factor in 
this Court’s decision in Brooks v. School District of City of 
Moberly, Mo., 267 F.2d 733 (8th Cir. 1959). There, all 11 
Negro teachers in the system were dismissed and the dis­
trict court found no racial discrimination. In addition to 
the Moberly Board’s prompt compliance, this Court sup­
ported its conclusion that the Board was not influenced by 
racial considerations in employing its teachers by noting 
that some white teachers had been included in the reduction 
in faculty resulting from the integration process. It was 
also noted that prior to integration, Negroes were paid 
salaries equal to those of white teachers and the Negro 
school was not inferior to white schools. The record in 
this case is filled with contrary evidence which, appellants 
submit, supports a contrary conclusion. Negro teachers with 
years of experience are paid less than newly hired white 
teachers with no experience (R. 49, 53, 55, 57, 101). The



28

Negro Sullivan High School was inferior to the white 
Morrilton High School (R. 194-95), and no white teachers 
lost their jobs as a result of the integration process which, 
in effect, reduced the total faculty by 7 teachers and one 
principal, all of whom are Negroes.

The district court’s suggestion that Negro teachers were 
dismissed not because they are Negroes, but because they 
are assigned to a Negro school which was closed when the 
Board finally decided to desegregate its schools, hardly 
serves to validate the Board’s racially motivated action 
when it is considered that the Negro teachers were origi­
nally assigned to the Sullivan School on a racial basis.

Thus the clearly invalid racial assignments bar the court 
below from successfully equating the Board’s personnel 
actions in earlier school consolidations with the dismissals 
contested here.

In summary, the Board’s contention that the dismissal 
of its Negro teachers was not based on race, is irreparably 
compromised by both the record which clearly evidences 
the presence of invalid racial considerations in the deci­
sions, and its maintenance of segregated schools long after 
it was apparent to all that the policy irreparably denied 
Negro pupils their constitutional right to a desegregated 
education. Indeed, the Board is in no better position than 
the State officials who contended that the Negroes arrested 
and convicted while seeking desegregated service in pri­
vately owned eating places were not prosecuted because of 
race. Reversing such convictions, the Supreme Court noted 
the presence of segregation statutes, regulations and poli­
cies, and held that because of the continued presence of 
State-sponsored segregation requirements, the officials’ de­
nials that their actions were racially motivated would not be 
heard. Peterson v. City of Greenville, 373 U.S. 244 (1963).



29

Lombard v. Louisiana, 373 U.S. 267 (1963); Robinson v. 
Florida, 378 U.S. 153 (1964).

The applicability of the rationale of these cases to the 
instant case is inescapable. The history of discrimination 
by the School Board, particularly in employment and as­
signment of teachers and school personnel, warrants here 
an affirmative showing that neither plaintiffs nor the mem­
bers of their class were denied employment because of race. 
Failure of the court below to require such showing reduced 
the rights of the Negro teachers involved to sterile pro­
nouncements without meaning or force. Watson v. City of 
Memphis, 373 U.S. 526 (1963).

II.

School Boards Effecting Faculty Reductions Required 
by Desegregation Must Evaluate All Teachers, Both In­
cumbent and Applicants, by Valid, Objective and Ascer­
tainable Standards.

A. To subject plaintiffs and their class to different 
standards or criteria than that required of white teachers 
in the system unquestionably denies them equal protection 
of the laws. Franklin v. County School Board of Giles 
County, supra, at 374. See also Bradley v. School Board 
of the City of Richmond, 317 F.2d 429 (4th Cir. 1963); 
Green v. School Board of the City of Roanoke, 304 F.2d 
118 (4th Cir. 1962); Calhoun v. Latimer, 321 F.2d 302, 304- 
305 (5th Cir. 1963), vacated 377 U.S. 263. Here, plaintiffs, 
unlike their white counterparts who had taught in the 
school system during prior years, were considered as being 
out of a job and, assuming they were considered at all, 
were compared for vacancies in the Morrilton High Schools 
along with new white applicants (R. 170). White teachers 
already assigned to the Morrilton High School were not 
similarly compared, but were deemed part of the team



30

who for morale reasons could not be replaced even by a 
better qualified teacher. The issue was expressly posed 
to the Superintendent by the Board attorney:

Q. There has been some suggestion, I take it, that 
you should have considered the displaced teachers on 
the basis of whether one of them might be better 
qualified than an encumbent teacher you had in some 
other school and thereby discharge the encumbent 
teacher and replace them with the teacher that had 
been displaced? A. No, sir, that’s not my policy, and 
I don’t think it is the policy of any school admin­
istrator. A  school staff becomes a team and if you 
disrupt that team by discharging the people on it in 
order to make room for another person you upset the 
morale of the teachers and upset the morale of the 
students in that particular school and even to some 
extent the parents (R. 171).

The court below approved this policy and suggested that 
it was required to prevent granting to Negro teachers “a 
stability of tenure not possessed by white teachers” (R. 34). 
But as this case illustrates, the application of the policy 
protects the positions of white teachers and results in the 
jobs of Negro teachers being abolished without regard to 
their training and experience. It follows that where the 
desegregation process enables a reduction in faculty size, 
fundamental concepts of fairness require selection of all 
teachers based on an objective evaluation of their qualifi­
cations. Moreover, as the district court noted in Franklin 
v. County School Board of Giles County, supra, at 374, 
“ the making of such an evaluation is strong evidence of 
good faith, see Brooks, et al., supra, 267 F.2d at 736, . . . ” 
Teacher morale, no less than law and order, while desir­
able, may not be maintained at the sacrifice of constitu­
tional rights. Cooper v. Aaron, 358 U.S. 1, 16 (1958).



31

B. Plaintiffs and members of their class were denied 
due process and equal protection of the laws when re­
quired to compete with new white teachers although other 
white teachers similarly situated as plaintiffs were not 
similarly appraised. Franklin v. County School Board of 
Giles County, supra; Calhoun v. Latimer, supra.

This arbitrary categorization of the Negro faculty as 
“displaced teachers” further evidenced the philosophy con­
tained in the lower court’s opinion that Negro teachers 
may be sacrificed as the price of school integration. The 
constitutional invalidity of this procedure was not cured 
even if the Board actually considered the dismissed Negro 
teachers for vacancies in the desegregated high schools 
since standards used by the Superintendent were, as the 
situation demanded, vague, unreasonable, arbitrary, and, 
in some instances, expressly based on race.

As indicated above, it was the School Board’s failure to 
compare the qualifications of all teachers for vacancies 
in the school system which was held repugnant to the 
constitutional rights of Negro teachers in Franklin v. 
County School Board of Giles County, supra, at 374. It 
should also be condemned here. Applying such standards 
to the school system required that Negro teachers who 
formerly taught in the Sullivan High School be fairly 
weighed and considered with all teachers teaching grades 
for which the Negro teachers were qualified rather than 
being considered as mere displaced persons without jobs 
and competing only for vacancies in the school system.

Failure of the court below to require this comparison 
and the same objective appraisal of white teachers simi­
larly situated as plaintiffs and members of their class 
constituted an abuse of discretion requiring reversal of 
the lower court’s decision.



32

CONCLUSION

Plaintiffs respectfully pray that this Court reverse the 
holding of the lower court and remand the case with in­
structions requiring both the reinstatement of all Negro 
teachers available and willing to accept positions, and the 
preparation by the Board of definite, objective and clearly 
ascertainable teacher qualification standards, which stand­
ards are to be approved by the district court and ordered 
into effect until the transition to a desegregated faculty 
is completed. If a reduction in teacher force is required, 
the same standards or criteria are to be applied to all 
teachers and applicants, and after such appraisal, should 
plaintiffs or any member of their class be refused employ­
ment, the Board must come forth with clear and convinc­
ing evidence to show that those denied employment were 
accorded due process and equal protection of the laws. 
Plaintiffs are entitled both to damages for the economic 
losses resulting from the Board’s action and to their costs 
and attorney fees as prayed for in the complaint.

Respectfully submitted,

J ohn  W . W alker
1304-B Wright Avenue 
Little Rock, Arkansas

H arold A nderson
610 West Ninth Street 
Little Rock, Arkansas

George H oward, J r .
329% Main Street 
Pine Bluff, Arkansas

J ack G reenberg
D errick A. B ell, J r .

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants



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