Grigsby v. North Mississippi Medical Center Reply Brief

    p ^

IN THE

United States Court of Appeals
POE THE EIGHTH CIRCUIT 

Nos. 19062 and 19061

E arn estin e  "Walton , M ajor  R eynolds

W h ite  and Claude E . K ing , J r. ___________ Appellants
v.

T h e  N ash ville , A rkansas S pecial S chool 
D istrict N o. 1, a P ublic C orporate, and  
E . T . M oody, S u perintendent  oe N ash ­
ville , A rkansas , S pecial S chool D istrict 
No 1 ___________________________ __________ Appellees

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR WESTERN DISTRICT OF 

ARKANSAS, TEXARKANA DIVISION

BRIEF FOR APPELLANT

J ohn  W. W alker 
N orman  J . C h a c h k in  
1304-B Wright Ave.
Little Rock, Arkansas 72206

J ack  G reenberg 
J ames M. N abrit , III 
M ichael  M . M eltsner 

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Appellant

PARAGON PR INT IN G  CO., LITTLE ROCK



I N D E X
Page

Statement of Case ---------------------------------------------------------------------  1

Statement of Points To Be Argued -------------------------------------------  13

Argument --------------------------------------------------------------------------------- 16

I. Appellees’ Termination of Major Reynolds White was 
basically unfair and racially motivated in violation of 
the due process and equal protection of the laws 
clauses of the Fourteenth Amendment ----------------------------  16

II. Appellees termination of Appellants without making 
the required objective evaluation of their qualifica­
tions in comparison with all other teachers in the 
system violated Appellees plan of desegregation and 
otherwise deprived Appellants of equal protection of 
the law s_______________________________________________-  22

III. Because of Appellees unconstitutional treatment of 
Appellants and because of Appellees refusel to comply 
with their desegregation plan, Appellants are entitled 
to the relief of reinstatement, damages, attorneys fees, 
costs; or appropriate alternative relief -------------------- ------- 30

Conclusion ------------------------------------------------------ ------------------------  3^

TABLE OF CASES

Armstrong v. Manzo, 380 U.S. 545 (1965)------------------------------------- 18

Augustus v. Board of Public Instruction, 306 F.2d 862 (5 Cir. 1962) 21

Bell v. School Board of Powhatan County, Va., 321 F.2d 494
(4 Cir. 1963)_______________________ ______ _________________  30

Bradley v. School Board of Richmond, 382 U.S. 103 (4 Cir. 1965)— 20

Brooks v. School Dist. of City of Moberly, 267 F.2d 733 (8
Cir. 1959) _______________________________________________ 17, 19

Brown v. Board of Education, 349 U.S. 294 (1955)------------------------  20

Chambers v. Hendersonville City Board of Educ., 364 F.2d 189
(4 Cir. 1966)______________________________________________17. 19

Clark v. Board of Educ. of Little Rock, 369 F.2d 661 (8 Cir. 1965) — 21

In Re Gault, _____U.S— _ _  --------S.Ct--------- , 18 L.Ed. 2d
527 (1967) ---------------------------------------------------------------------------- 16



INDEX (Continued)

Page

In Re Oliver, 333 U.S. 257 (1948)________________________________  18

Johnson v. Branch, 364 F.2d 177 (4 Cir. 1966) __________________  24

Kelley v. Altheimer, 378 F.2d 483 (8 Cir. 1967) ________________  31

Rios v. Hackney, Civ. No. CA-3-1852 (N.D. Tex., Nov. 30, 1967)._„ 20

Rogers v. Paul 382 U.S. 198 (1965) ____________________________  20, 23

Shelton v. Tucker, 364 U.S. 479 (1960) _________________-_________ 16

Slochower v. Board of Educ. of N.Y., 350 U.S. 551 (1956) --------- 18

Smith v. Board of Educ. of Morrilton, 365 F.2d 770 (8 Cir. 1965) 17, 20

Sperser v. Randall, 357 U.S. 513 (1958)-------------------------------------  18

Stell «. Savannah-Chatham Board of Educ., 333 F.2d 55 (5
Cir. 1964) ___________________________________ _______________ 21

Wall v. Stanly County Board of Educ.-------F .2 d _ — (4 Cir. 1967) 30

Yarbrough v. Hulbert—West Memphis School Dist. No. 4, 380
F.2d 962 (8 Cir. 1967) — _____________________________ ____— _  29

CONSTITUTION AND STATUTES

United States Constitution, Fourteenth Amendment
28 U.S.C., Rule 52(a), Federal Rules of Civil Procedure ------------  26

OTHER AUTHORITY

Note, discrimination in the hiring and assignment of teachers
in the public school systems, 64 Mich. L.R. 692 (1966)------------  30



IN THE

United States Court of Appeals
FOE THE EIGHTH CIRCUIT

Nos. 19062 and 19061

E  AR N E  S T IN E  W A L T O N , M a JO R  R E Y N O L D S

W h ite and  Claude E. K in g , Jr. ___________Appellants
v.

T h e  N ash ville , A rkansas S pecial S chool 
D istrict N o. 1, a P ublic C orporate, and 
E. T. M oody, S u perin ten den t  oe N ash ­
ville , A rkansas, S pecial S chool D istrict 
No 1 _______________________________________  Appellees

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR WESTERN DISTRICT OF 

ARKANSAS, TEXARKANA DIVISION

BRIEF FOR APPELLANT

STATEMENT OF THE CASE

Number 19062 is an appeal from a judgment of the 
District Court for the Western District of Arkansas, Tex­
arkana Division, denying injunctive relief, reinstatement, 
damages and attorney’s fees sought by Negro plaintiffs-



appellants following their discharge as teachers by the 
appellees, Nashville, Arkansas Special School District No. 
1 and Nashville Superintendent E. T. Moody. Plaintiffs- 
Appellants had filed suit challenging the legality of their 
dismissals under the due process and equal protection of 
the laws clauses of the Fourteenth Amendment to the 
United States Constitution. Number 19061 is an appeal 
taken on behalf of Negro plaintiffs-appellants against the 
same appellees from the order of the district court deny­
ing their prayer to have the all-Negro Nashville school 
closed because it is inferior and inadequate. These ap­
pellants move to dismiss this aspect of their appeal on the 
ground that, on information and belief, said school will 
be closed at the end of the current school term and the 
Negro pupils assigned to the existing and superior pre­
dominantly white schools operated by appellee school 
district. A  summary of previous litigation involving ap­
pellees is set out below to place this entire matter in per­
spective.

I. histoky  :

Through the 1965-66 school term the boundaries of 
the Nashville Special School District No. 1 and the 
Childress Special School District No. 39 overlapped cover­
ing substantially the same geographic territory (R.4). 
Nashville’s faculty, staff and student body were all white; 
likewise, Childress’ faculty, staff and student body were 
all-Negro (R.6).

E. T. Moody, a white person, was superintendent of 
Nashville Schools; Tommy Walton, a Negro, was super­
intendent of Childress Schools (R.6). Moreover, school 
taxes were assessed and assigned to each school district 
on a racial basis (R.4). Nashville’s school system had 
the North Central Association’s highest accreditation; 
Childress, a much smaller and poorer school system, was



unaccredited by North Central and merited only a “ C ”  
rating from the Arkansas State Education Department (E. 
98).

In 1965, both school districts represented to the De­
partment of Health, Education and Welfare (HEW ) 'that 
they were in compliance with that body’s regulations on 
school desegregation promulgated pursuant to the Civil 
Rights’ Act of 1964, in that each district was educating 
all pupils within its boundaries without discrimination. 
Accordingly both districts continued to receive federal 
financial assistance (E.5, 21, 22).

On December 20, 1965, Negro pupils filed suit chal­
lenging the legality of overlapping districts established on 
the basis of race. They also sought to establish their 
right to attend Nashville public schools, on a desegregated 
basis; and to have the Nashville district adopt and im ­
plement a comprehensive plan of desegregation. Their 
suit resulted in a stipulation for dismissal, approved by 
the district court on March 3, 1966, pursuant to the adop­
tion of a desegregation plan (E.4-10, 28) which, among 
other things, provided:

(1) That the Childress School District would cease 
to exist on June 30, 1966;

(2) That the Nashville School District would assume 
responsibility for providing education for all pupils re­
siding within the Nashville district beginning on July 1, 
1966;

(3) That the Nashville School District would assume 
the obligations, assets and liabilities of the Childress 
School District as they existed on June 30, 1966;

(4) That the district would move toward the estab­
lishment of a unitary school system by implementing a



4

limited, freedom of choice plan at the start of the 1966-67 
school term; and

(5) That the district would take steps to insure that 
faculty desegregation was achieved and that in the pro­
cess,

“ Teachers and other professional staff will 
not be dismissed, demoted, or passed over for re­
tention, promotion, or rehiring, on the ground of 
race or color. If consolidation of the Nashville 
and Childress districts and the unification of the 
schools result in a surplus of teachers, or if for 
any other reason related to desegregation it be­
comes necessary to dismiss or pass over teachers 
for retention, a teacher will be dismissed or passed 
over only upon a determination that his qualifica­
tions are inferior as compared with all other teach­
ers in the consolidated system”  (E.10).

After the Court decree, Appellees made no effort to 
communicate their desegregation plans to the Negro teach­
ers (E.44).

II. T E R M IN A T IO N  OE M A JO R  REYN OLDS W H IT E  :

During the 1965-66 school term, the Childress School 
District offered a full school program for grades one 
through twelve. Consequently, appellants and a number 
of other Negroes were employed as teachers; Tommy 
Walton was the Superintendent of the Childress district. 
Appellant Major Eeynolds White taught high school social 
studies during 1965-66; appellant Earnestine Walton 
taught high school home economics; and appellant Claude 
E. King, Jr., taught high school agriculture (E.18).



Near the close of the 1965-66 school term, pursuant to 
the Court approved freedom of choice plan, a large num­
ber of Negro pupils chose to transfer to the white Nash­
ville schools. Consequently, Nashville decided to reduce 
the faculty of Childress by at least one teacher. For as 
Superintendent Moody stated: “ We knew that we were
going to have to hire some of them [Negro teachers] and 
we studied their transcripts of the ones we had available”  
(R.116). The teacher eliminated was Major Reynolds 
White (R.24).

Although Nashville was not to assume operational 
control of the Childress School (later renamed as the 
Southside School) until July 1, 1966, the Nashville Board 
and Superintendent began to screen the Negro teachers in 
May of 1966 by viewing and studying their transcripts 
(R.116, 149, 150). Nashville Superintendent Moody 
asked the Childress Superintendent Walton to furnish 
copies of the transcripts of the Childress-Southside teach­
ers. No such request was made of the white Nashville 
principal, and Mr. Moody gave Mr. Walton no explanation 
for his request (R.115). Later in the year at a Childress- 
Southside faculty meeting, Mr. Walton announced that fac­
ulty members should provide copies of their transcripts for 
“ the office” . He did not advise the teachers that the 
transcripts were wanted by Mr. Moody nor of the pos­
sible consequence of failure to produce the transcripts: 
retention or dismissal (R. 73, 74, 76, 115). Mr. Moody did 
not have any direct communication with the Negro teach­
ers about the contemplated faculty reduction or the 
necessity for Negro faculty members to provide Nashville 
with copies of their transcripts (R.74).

Apparently, Major Reynolds White was the only 
Negro teacher whose transcript was not on file. How­
ever, copies of his transcripts were on file in the County

5



6

Board of Education and the Arkansas State Education 
Department.1 Although Mr. White made prompt efforts 
to obtain copies of his transcript from Philander Smith 
College (where he obtained his B. A. degree) and from 
the University of Arkansas graduate school, and explained 
to Mr. Walton that May was a very busy month for colleges 
and that delay was to be expected, (R.74), he was term­
inated by appellees on or about June 2, 1966 for the reason 
that he did not provide the district with copies of his 
transcripts. It was not until on or about June 12, 1966 
that he received the requested copies of his transcript.

After his termination, Mr. White sought unsuccessful­
ly to have the Nashville Board reconsider their decision 
to terminate his employment (R.75, 103). The Board 
did not advise Mr. White of any vacancies which occurred 
in the system nor give him an opportunity to return to 
Nashville as a teacher if he qualified for any such vacan­
cy (R.119). Mr. White obtained employment as a sub­
stitute teacher in the nearby Prescott School District dur­
ing the 1966-67 school term (R.81).2

During the summer of 1966, a position as social 
studies teacher at the Southside School became vacant for 
the 1966-67 school year. Although this is the subject 
that Major White had taught, neither the Nashville Sup­
erintendent nor the Board considered rehiring Mr. White. 
Nor did Nashville consider employing or assigning a 
white teacher to fill the vacancy (R.117, 118). Conse­

1 The District was aware that Mr. White was a college gradu­
ate properly licensed and certified by the State of Arkansas. Mr. 
White is a graduate of Philander Smith College who had at time 
of trial, nine graduate hours of study at the University of Arkansas. 
He has teaching experience of ten years, all but two in the Childress 
School District (R. 70, 71, 72, 75).

2 At the time of trial, August 17, 1967, Mr. White had not 
obtained another teaching position (R.86).



quently, the Negro pupils at Southside were completely 
deprived of a social studies teacher for more than a 
month (R.30, 31, 67), and then “ kept”  by a Negro teach­
er, four years retired, for about two months (R.68). The 
superintendent “ thought she would be better than noth­
ing”  (R.117). It was not until December of 1966 that 
those Negro pupils were afforded the benefit of a com­
petent teacher, Artka Shaw3, who, himself, was terminated 
at the close of the school year (R.30, 32, 33, 94).

During the summer of 1966, subsequent to Mr. White’s 
termination, a vacancy occurred in the white elementary 
school. Mr. Moody did not consider Mr. White for that 
vacancy because he “ didn’t think Major would be in­
terested in a first grade job ”  (R.119).

The district court upheld appellees’ termination of 
Mr. White on the grounds that:

1. Mr. White was “ requested [by appellees] to fur­
nish certain information”  and that he did not do so;

2. the appellees followed “ well adopted and well- 
known procedures”  in terminating him: and that

3. the appellees did not abuse. their authority (R. 
160, 161).

I l l  T H E  D ISM ISSALS OE A P P E L L A N T S :

During the freedom of choice period held by Nash­
ville near the close of the 1966-67 school term, most of the 
Negro pupils then attending Southside School in grades

3 However, Mr. Shaw was a beginning teacher without ex­
perience and without graduate training (R.107). Compare Mr. 
White’s paper qualifications, (R.71-73) and cf. R.20 where Mr. Moody 
states that he didn’t know whether Mr. White was more or less 
competent than Mr. Shaw.



8

nine through twelve made choices to transfer to the pre­
dominantly white Nashville high school. Nashville then 
decided to abolish those grades at Southside and to as­
sign the Negro pupils therein to the Nashville High School 
for the 1967-68 school year (R.33).

After deciding to close the top four grades at South- 
side, Nashville decided to reduce Southside’s faculty and 
staff. As Mr. Moody stated: “  . . .  I talked to them [the 
Negro teachers] individually, privately, that we were go­
ing to have to abolish some of the positions down there, 
and there wouldn’t be as large a faculty as we had . . . ”  
(R.127). Consequently, the Negro principal, who had 
formerly been superintendent of Childress before the 
court decree, was terminated as were his wife, Earnestine 
Walton, the home economics teacher; Claude E. King, Jr., 
the agriculture teacher, and Altha Shaw, the social 
studies teacher who had filled the vacancy created by the 
termination of appellant Major Reynolds White (R.33). 
The Secretary of the Nashville Board stated that had a 
greater number of Negro pupils chosen to attend South- 
side, the dismissed Negro teachers ‘ ‘ would have [been] 
retained . . .  in the system”  (R.39).

The Negro high school coach and physical education 
instructor, Prentiss Counts, was reassigned from the high 
school to the Southside elementary school. He was not 
considered for a coaching position in the white high school 
(R.128, 129) although two coaching positions, one of head 
coach and the other of assistant coach, became vacant 
there during the summer of 1966, (R.37, 129). The former 
assistant coach was promoted to the head coaching posi­
tion. The assistant coach named, a Mr. Dale, was new 
to the Nashville system (R.38). Superintendent Moody 
defended Nashville’s action by stating: “ He [Counts]



9

couldn’t fill that position anyway . . . that is a football 
position and he is a basketball coach, has no experience in 
football”  (R.130). Southside never had a football pro­
gram.

Shortly after the close of the 1966-67 school year 
Superintendent Moody retired. Nashville then created 
the position of coordinator of federal projects and named 
Mr. Moody to fill it (R.110). Mr. Moody’s successor as 
superintendent was the principal of the Nashville High 
School, Mr. Jones. Mr. Jones’ successor as principal 
was the white agriculture teacher, Mr. Stavely (R.36). 
Although at least six vacancies (superintendent, principal, 
agriculture teacher, coach, assistant coach, and the vacan­
cy created by the assistant coach moving up to coach (R. 
32-39) occurred in the Nashville system shortly after the 
close of the 1966-67 school term, appellees neither serious­
ly considered any of the dismissed Negro teachers for 
either vacancy; nor did appellees encourage or even ad­
vise the dismissed teachers to reapply, and that if they 
did so, that they would be given the first opportunities to 
fill those or other vacancies which occurred within the 
system (R.38).

A. The Cases of Tommy Walton and Altha Shaw:

Tommy Walton was principal of Southside during 
1966-67. Nashville was aware that Mr. Moody would 
be retiring at the close of the 1966-67 school year and that 
Mr. "Walton had previous experience as a school superin­
tendent. However, Nashville’s Board did not consider 
Mr. Walton for the position of superintendent. Like­
wise, after the decision was made to promote the white 
principal to the superintendent’s post, the Nashville Board 
did not consider Mr. Walton for the position of principal 
of Nashville high school although he had previous ex­



10

perience as a high school principal. Moreover, Nash­
ville’s school construction plans promise reorganization 
of the school system so that at the beginning of the 1968- 
69 school year, a junior high school principal will be 
needed (R.49, 50). However, Mr. Walton was not ad­
vised that he will be considered for the junior high vacancy 
when it occurs. Nor that he could apply for it. Nor were 
his qualifications compared with those of the white ele­
mentary principal (R.123). Despite the fact that Mr. 
Walton had a good academic background (R.97), Mr. 
Moody testified that, “ we didn’t consider Mr. Walton 
for any position”  (R.122). (cf. also (R.39). [Discus­
sion of the facts surrounding Altha Shaw’s dismissal is 
omitted.] Mr. Walton and Mr. Shaw did not appear for 
trial and their action was dismissed by counsel.

B. The Case of (M rs.) Earnestine Walton:

Appellant Earnestine Walton taught home economics 
in the Southside school during the 1966-67 school term (R. 
99). Although Mrs. Marie Stavely, home economics 
teacher at the white high school, had considerably more 
experience than Mrs. Walton (R.100), neither Mr. Moody 
nor the Nashville Board made a careful, detailed com­
parison of their qualifications. Nor clid appellees ob­
jectively compare Airs. Walton’s qualifications with those 
of all other teachers in the system (R.130, 44, 125, 126, 
143, 149). Further, although at least one white ele­
mentary teacher resigned during the summer of 1967, and 
although a number of teachers were teaching outside their 
fields of study (R.124, 125, 135) neither Mrs. Walton nor 
the other Negro teachers were offered the opportunity to 
fill this vacancy. Only white applicants were considered 
(R.33, 34). The reason given for not offering this po­
sition to either displaced Negro teacher was that an 
elementary certificate was required and they held high



11

school certificates (R.34). This reason did not prevent 
appellees from assigning Prentiss Counts from the Negro 
high school to the Negro elementary school (R.128).

The district court in upholding appellees’ termina­
tion of Mrs. Walton stated:

The Court is concerned with this provision 
which requires that a termination be made on the 
basis of qualifications which are inferior as com­
pared with all other teachers . . . The Court is only 
concerned as to whether or not there was a com­

parison made and a determination upon the basis of 
the qualifications of one person as against an­
other person. [But see R.130, and discussion, 
supra]. The evidence is very clear that the ac­
tion by [appellees] . . . was with well-established 
procedures on the basis of comparison of quali­
fications.

. . . the party who has the position that Mrs. 
Walton is interested in had some fifteen years 
[experience] . . . (R.160).

C. The Case of Claude E. King, Jr. :

Appellant King taught vocational agriculture during 
the 1966-67 school year at the Southside high school (R. 
55). At the close of the school year, when he was 
terminated by appellees, Mr. King obtained work as a 
truck driver. This was not customary summer employ­
ment for him, for vocational agriculture teachers were 
employed on a twelve month basis (R.55). (Mr. King 
was thus not employed by Nashville for a period from 
July 1, 1967, through at least the date of the trial, August 
17, 1967.)



12

At the time Mr. King was terminated, appellees did 
not compare his qualifications with those of all other 
teachers in the system (K.36, 103). Mr. Herman Stavely, 
the white vocational agriculture teacher who was re­
tained through the school year, was made principal of 
the Nashville high school during the summer of 1967 
(R.58). Although Mr. King had taught in the system 
previously he was neither hired nor given the first op­
portunity to fill the vacancy created by Mr. Stavely’s 
promotion (R.58, 59, 62, 130, 131). Instead, a Mr. Dugan 
who was new to the system filled that vacancy (R.131). 
In fact, the need for a second agriculture teacher was 
occasioned by the large number of Negro pupils who pre­
registered during the summer for vocational agriculture 
(R.131). It was only after this action was filed and went 
to trial that appellees officially offered Mr. King the 
opportunity to fill the second vacancy in the agreiulture 
department (R.55).

The district court took the position that the appellees’ 
offer of employment to Mr. King should satisfy his com­
plaint. The court did not consider the issue of dam­
ages which Mr. King sustained, costs, attorneys’ fees, nor 
the legality of Mr. K ing’s termination (R.159).

Judgment was entered on August 23, 1967, by the 
Honorable Oren E. Harris, District Judge, dismissing the 
complaint on the condition that defendants tender Claude 
E. King, Jr., a contract for the 1967-68 school term. 
Notice of appeal was filed on September 14, 1967 (R. 
167).



POINTS TO BE RELIED ON

Appellees termination of Major Reynold White was bas­
ically unfair and racially motivated in violation of the 
due process and equal protection of the laws clauses 
of the Fourteenth Amendment.

Smith v. Board of Educ. of Morrilton, 365 F. 2d 770 (8
Cir. 1965)

Brooks v. School Dist. of City of Moberly, 267 F. 2d 733
(8 Cir. 1959) cert, den., 361 U.S. 894 (1959)

Chambers v. Hendersonville City Board of Educ., 364 F.
2d 189 (4 Cir. 1966)

In Re Gault, ______U.S. _______ , ______  S. Ct. ______ , 18
L. Ed. 2d 527 (1967)

Armstrong v. Manzo, 380 U.S. 545 (1965)

Augustus v. Board of Public Instruction, 306 F. 2d 862 
(5 Cir. 1962)

Bradley v. School Board of Richmond, 382 U.S. 103 (4 
Cir. 1965)

Brown v. Board of Education, 349 U.S. 294 (1955)

Clark v. Board of Educ. of Little Rock, 369 F. 2d 661 (8 
Cir. 1965)

In Re Oliver, 333 U.S. 257 (1948)



14

Rios v. Hackney, Civ. No., CA-3-1852, (N.D. Tex. Nov. 30, 
1967)

Rogers v. Paul, 382 U.S. 198 (1965)

Shelton v. Tucker, 364 U.S. 479 (1960)

Slochower v. Board, of Educ. of N. J ., 350 U.S. 551 
(1956)

Speisef v. Randall, 357 U.S. 513 (1958)

Stell v. Savannah-Chatham Board of Educ., 333 F. 2d 
55 (5 Cir. 1964)

i i

Appellees termination of Appellants Walton and King 
without making the required objective evaluation of 
their qualifications in comparison with all other 
teachers in the system violated Appellees plan of 
desegregation and otherwise deprived Appellants of 
equal protection of the laws.

Smith v. Board of Educ. of Morrilton, 365 F. 2d 770 (8 Cir. 
1965)

Chambers v. Hendersonville City Board of Educ., 364 F.
2d 189 (4 Cir. 1966)

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

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



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

Rogers v. Paid, 382 U.S. 192 (1965)

TFoM v. Stanly County Board of Educ. - ....-....F. 2 d ----------
(4 Cir. 1967)

Yarbrough v. Hulbert-West Memphis School Dist., No. 4 
380 F. 2d 962 (8 Cir. 1967)

28 U.S.C. Rule 52(a), Federal Rules of Civil Procedure

O TH E R  A U T H O R IT Y

Note, Discrimination in the Hiring and Assignment of 
Teachers in the Public School Systems 64 Midi. L.R. 
692 (1966)

h i

Because of Appellees unconstitutional treatment of A p­
pellants and because of Appellees refusal to comply 
with . their desegregation plan, Appellants are en­
titled to the relief of reinstatement, damages, at­
torneys’ fees, costs; or appropriate alternative relief.

Bell v. School Board of Powhatan County, Va., 321 F. 2d
494 (4 Cir. 1963)

Smith v. Board of Educ. of Morrilton, 365 F. 2d 770, (8 
Cir. 1966)

Chambers v. Hendersonville City Board of Educ., 364 F. 2d
189 (4 Cir. 1966)

Kelley v. Altheimer, 378 F. 2d 483 (8 Cir. 1967)

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



16

ARGUMENT

i

Appellees termination of Major Reynold White was bas­
ically unfair and racially motivated in violation of the 
due process and equal protection of the laws clauses 
of the Fourteenth Amendment.

Major Reynolds White had been employed by the all- 
Negro Childress School District for seven years as a 
social studies teacher. His qualifications as a teacher 
had never been questioned. He was licensed as a teacher 
by the state Department of Education and the County 
Board of Education. Both agencies required a tran­
script as a condition for licensing a teacher. In antici­
pation of the merger of the two districts lying within the 
same geographic territory, the all-white Nashville Board 
and its superintendent, E. T. Moody, decided in May of 
1966 to reduce the Childress faculty by one because of the 
large number of Negro pupils who exercised “ freedom of 
choice”  to attend the white schools (R.29). Mr. Moody 
then requested Mr. Tommy Walton, superintendent of 
Childress (later principal of Childress when it was ab­
sorbed by Nashville and renamed Southside) to provide 
him copies of transcripts of all the Negro teachers. Mr. 
Moody had copies of transcripts of white teachers from 
previous years. Mr. Moody did not advise Mr. Walton 
(who -was then Mr. Moody’s equal) of the uses to which 
the transcripts would be put nor did he advise him that 
faculty reduction was contemplated. In turn, neither did 
Mr. Walton so advise his teachers. Thus, Mr. White 
did not know what appellees expected him to do to main­
tain his position as a teacher, [of. Shelton v. Tucker 364 
U.S. 479, 486, 487 81 S. Ct. 247, 5 L. Ed 2d 231 (I960)].



17

Mr. White was apparently the only teacher for whom 
there was not a transcript on file with Mr. Walton and 
by the time he obtained copies of his transcripts from 
his colleges, he had been terminated for the very reason 
that he had not produced them before June 2, 1966, prior 
to the date appellees were to assume control of the 
Childress School. Moreover, the only criterion used by 
appellees to make a comparative determination between 
the Negro and white teachers of their qualifications was 
whether or not, as of May 1966, a teacher’s transcript was 
in the hands of Mr. Moody. Clearly this criterion could 
only apply to Negro teachers for Mr. Moody knew that 
all of the white teachers in Nashville had transcripts on 
file. Thus, the criterion was based on the prohibited 
basis of race. Smith v. Board of Education of Morrilton, 
365 F. 2d 770 (8 Cir. 1965). Further support for this 
conclusion is seen in appellees belief that faculty reduc­
tion was necessary because of the transfers of the Negro 
pupils from the Negro high school to the white high school. 
Appellees specific termination of Mr. White was based 
and defended solely on the grounds that Mr. Moody had 
not been provided with a copy of Mr. White’s transcript.

This is certainly not the ebjective evaluation re­
quired, Brooks v. School District of Moberly, 267 F. 2d 
733, 736 (8 Cir. 1959), cert, den., 361 IX.S. 894; Chambers 
v. Hendersonville City Board of Education, 364 F. 2d 189 
(4 Cir. 1966), especially when coupled with the facts that 
appellees never gave Mr. White notice that his transcript 
was needed, or wanted for the purpose of objectively eval­
uating teachers to determine which teachers would be 
retained or released; nor gave him an opportunity to ex­
plain difficulties experienced in attempting to obtain it 
from his colleges. Nashville’s failure to give Mr. White 
adequate notice of appellees requirements for continued



18

employment in the district or to grant him a pre-termina­
tion hearing under the circumstances constituted depriva­
tion of his livelihood1 without due process of law. In
Re Gault, ____ U.S. ____, ____ S. Ct. ____, 18 L. Ed. 2d
527, 549 (1967); Armstrong v. Manzo, 380 U.S. 545, 85 S. 
Ct. 1187, 14 L. Ed. 2d 62, (1965), Speiser v. Randall, 357 
U.S. 513, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958); Re 
Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682 (1948); 
Slochower v. Roard of Educ. of N. Y., 350 U.S. 551, 76 
S. Ct. 637, 100 L. Ed 692 (1956).

The basic unfairness and racial motivation of ap­
pellees in their termination of Mr. White is seen in the 
events which follow his termination. After appellees 
notified Mr. White that his contract would not be renewed, 
Mr. White went before them with his transcripts, sought 
and received an audience of sorts, but was neither rein­
stated nor advised that, in the event of a later vacancy in 
the system he would be considered for it. During the 
summer of 1966, at least two vacancies occurred in the 
system —  one in the white elementary school; the other 
in the Southside (Negro) school. Only white applicants 
were considered for the elementary position. Mr. White 
was not considered because Mr. Moody “ didn’t think 
Major would be interested in a first grade job ”  (R.119).

Ironically, the Southside vacancy was for a social 
studies teacher, the position occupied by Mr. White during 
the previous years. Instead of contacting Mr. White to 
ascertain his availability to fill it, appellees left the po­
sition unfilled for more than a month after school began; 
and it was more than three months before a competent, 
qualified Negro teacher was named to fill the vacancy.

i Ones’ livelihood is just as important, in many circumstances 
as his life, liberty or property and indeed involves them all.



19

Appellees did not consider filling the vacancy with a white 
teacher (R.117, 118), despite their commitment of March 
3, 1966 that “ Race or color will henceforth not be a factor 
on the hiring, assignment, reassignment, promotion, de­
motion, or dismissal of teachers . . . (R.9).

These factors, coupled with others,2 constitute ‘ ‘ pos­
itive evidence”  that appellees (1) were influenced by im­
proper racial considerations in the matter of employing, 
retaining and reassigning teachers, Brooks v. School Dis­
trict of Moherly, Missouri, 267 F. 2d 733 (8th Cir., 1959); 
Chambers v. Hendersonville City Bd. of Educ., 364 F. 2d 
189 (4 Cir., 1966); and (2) flagrantly deprived Mr. White 
of fundamental due process rights no less important than 
notice to a juvenile of the charges against him, or of his 
right to counsel and to a hearing before he could be com­
mitted to a juvenile institution, In Re Gault, supra; or 
the right to a public trial, In Re Oliver, supra; or the 
right not to be denied a liquor license without being

2 Other factors include:

a. The racial pattern of previous school assignments, and the 
necessity for litigation to bring about a change in said pattern;

b. The subterfuge of appellees in representing to the U. S. 
Department of HEW that Nashville was in compliance with that 
office’s guidelines on school desegregation;

c. The fact that but little faculty desegregation was con­
templated or achieved during the first year after a commitment was 
made by appellees to cease faculty discrimination;

d. The fact that teacher reduction was undertaken because 
of Negro pupil transfers;

e. The fact that appellees never formally advised the Negro 
teachers of appellees desegregation plan;

f. The fact that no formal notice was given the Negro teachers 
in 1966 including Mr. White of the contemplated faculty reduction;

g. The fact that the reduction did not occur; and

h. The fact that no objective comparison of all teachers in 
the system per appellees commitment was made.



20

afforded due process, Hornsby v. Allen, 326 F. 2d 605, 608 
(5 Cir. 1964); or the right to continue receiving welfare 
benefits unless same are withdrawn or denied in accord­
ance with due process requirements, Rios v. Hackney, Cir. 
No. CA 3-1852, (N D. Tex., Dallas Div., Nov. 30, 1967).

It is now well settled that Brown v. Board of Educa­
tion, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 2d 1083, (1955) 
extends to faculty as well as pupil desegregation. 
Rogers v. Paul, 382 U.S. 198, 200, 86 S. Ct. 358, 15 L. Ed. 
2d 265 (1965) ; Bradley v. School Board of Richmond, 382 
U. S. 103, 86 S. Ct. 224, 15 L. Ed. 2d 187 (1965). Thus, 
racial discrimination in the employment, assignment, 
utiliaztion, retention or dismissal of teachers is clearly 
proscribed, Smith v. Board of Educ. of Morrilton, Ark., 
supra, as was recognized by the appellees in their stipu­
lation for dismissal and approval of the District Court’s 
decree (R.5).

Apparently, the District Court did not view the ap­
pellees conduct as being racially motivated for the Court 
made no finding of facts on the racial issue. Instead, the 
Court disposed of Mr. White’s complaint by holding that 
Mr. White did not comply and the appellees did comply with 
appellees “ well adopted and well-known procedures”  (R. 
161). The Court did not state what those proeeedures 
were but if the Court was referring to the desegregation 
plan it approved, certainly the details of the plan were 
not well-known and well publicized, for the appellees never 
explained it to or discussed it with the Negro teachers. 
Moreover, 1966 was the first year that appellees had 
undertaken to integrate Negro pupils and teachers into 
their system. The process was therefore new to all 
concerned. It is for this reason that appellees owed 

- an especial duty to widely publicize its plan in a suf­



ficient manner to drive home to the affected teachers, 
especially Mr. White —  no less than it did to pupils — 
their rights thereunder and how the district proposed to 
pi’otect those rights. Clark v. Board of Educ. of Little 
Rock, 369 F. 2d 661, 668 (8 Cir. 1965); 8 tell v. Savannah- 
Chatham County Bd. of Educ. 333 F. 2d 55, 65 (5 Cir. 
1964); Augustus v. Bd. of Public Instruction of Escambia 
County, 306 F. 2d 862 (5 Cir. 1962).

Further, the Court supported its decision against 
Mr. White in part by stating:

“ For some reason that has not been explained, 
Mr. White did (not) see fit to submit the infor­
mation, even though there seems to have been some 
question raised even during the summer of 1966. 
Regardless of that, it appears that he has not 
sought to even provide the information to this 
date.”

But testimony is to the contrary for Mr. White testi­
fied that he obtained the transcripts during the summer, 
appeared before appellees and advised appellees that he 
had his transcripts, (R.75), and Mr. Moody corroborated 
Mr. Whites’ testimony (R.103, 104).

The Court reasoned further: “ Furthermore, he (Mr. 
White) proceeded to go to another place, obtain a job, and 
a whole school year has passed . . . ”  The Court clearly 
overlooks the duty placed upon a displaced teacher to 
mitigate his damages. Smith v. Board of Educ. of Mor- 
rilton, supra.

In conclusion, appellant White’s termination by ap­
pellees is (a) clearly based on race and (b) devoid of 
the basic rudiments of fairness. The cited cases dictate 
reversal.

21



22

XI

Appellees termination of Appellants Walton and King 
without making the required objective evaluation of 
their qualifications in comparison with all other 
teachers in the system violated Appellees plan of 
desegregation and otherwise deprived Appellants of 
equal protection of the laws.

Appellees violated their policy, agreed to by consent 
stipulation, re dismissal of teachers when they termniated 
appellants. That policy read:

“ (b) Dismissals. Teachers and other pro­
fessional staff will not be dismissed, demoted, or 
passed over for retention, promotion, or rehiring 
on the ground of race or color. I f  consolidation 
. . . and the unification of the schools result in a 
surplus of teachers, or if for any reason related to 
desegregation, it becomes necessary to dismiss or 
pass over teachers for retention, a teacher will 
be dismissed only upon a determination that his 
qualifications are inferior as compared with all 
other teachers in the consolidated system.”  [Em­
phasis added.]

The facts convincingly establish that the all-white 
Nashville school district absorbed th e  all-N egro 
Childress school district and, that, in the process, at the 
close of the 1966-67 school term, a large number of 
Negro high school pupils chose to attend the white Nash­
ville high school. Appellees then decided to close the 
top four grades at Southside, assign all of the Negro 
pupils in those grades to Nashville, and terminate or 
demote the Negro high school teachers and principal. Mr. 
Moody, Nashville Superintendent stated that after the 
decision was made to close the top four grades at the



Negro school, “ I talked to them (the Negro teachers) in­
dividually, privately, that we were going to have to abolish 
some of the positions down there, and there wouldn’t be 
as large a faculty as we had . . . ”  (R.127). The ap- 
pelle secretary corroborated this by stating that appellees 
'-would have retained them (the Negro teachers) in the 
system”  had it not been for the pro-integration choices 
of the Negro pupils (R.39). (See Rogers v. Paul, 382 
U.S. 192, 86 S. Ct. 358, 15 L. Ed. 2d 265 (1965); Smith v. 
Board of Educ. of Morrilton, 365 F. 2d 770 (8 Cir. 1965) 
cited for proposition that faculty dismissals brought about 
by the exercise o f pro-integration choices of pupils, when, 
in whole or in part, based on race may impede further 
progress in pupil desegregation).

In face of appellees’ previous patterns, practices and 
policies of racial discrimination (see footnote 2, supra), 
and their failure to voluntarily initiate desegregation, 
appellees’ conduct in terminating appellants must clearly 
be characterized as racially motivated.

This Court has indicated that the facts of each case 
of this type must be carefully examined Brooks v. School 
District of City of Moberly, 267 F. 2d 733 (8 Cir. 1959). 
A careful examination of the facts here compels the con­
clusion that race was the sole reason for appellants’ 
termination and the manner in which they were otherwise 
treated. Although not presented for decision in this 
appeal, the cases of Tommie Walton, Altha Shaw and 
Prentiss Counts present convincing evidence that the 
pattern and practice of treatment of Southside teachers 
by appellee was racial. First, Tommie Walton had 
previous experience as both a school superintendent and 
principal in this community. He also had a good 
academic background (R.97). Moreover, the appellees

23 .



24

knew that one or both positions would soon be vacant by the 
retirement of Mr. Moody and the probable promotion of 
the Nashville principal to the superintendent’s position. 
Appellees also knew that in September, 1968, a junior high 
principalship would be vacant. Despite these factors, 
Mr. Walton was not considered “ for any position”  (R. 
39). There is no explanation in the record for appellees 
failure to consider Mr. Walton for any position other that 
it would not be necessary to have a full time principal at 
Southside (R.121). Appellant submits that no conclu­
sion is possible other than that Mr. Walton was previously 
employed by appellants solely for the Negro school rather 
than for the entire school system. Johnson v. Branch, 
364 F. 2d 177 (4 Cir. 1966) ; Franklin v. County School 
Board of Giles County, 360 F. 2d 325, (4 Cir. 1966). The 
Court did not make any finding of fact re appellees’ 
termination of Mr. Walton.

Second, plaintiff Altha Shaw, a negro social science 
teacher who filled the vacancy created by the termination 
of appellant Major Reynolds White at the close of the 
1965-66 school term had his qualifications compared in 
the words of Arkansas Circuit Judge Bobby Steel, a 
board member of appellee school district:

“ As I recall, the information provided to the 
school hoard by Mr. Moody . . . was that Mr. Shaw 
had some seven months experience as a teacher in 
comparison with a teacher who had been with our 
school system several years, and there was no doubt 
in our superintendent’s mind to which one was a 
better qualified teacher”  (R.144).

There is no explanation on the record as to why the 
comparison was limited to just one teacher who had been 
in the white system a number of years. Absent any ex­
planation for failure to follow their plan, and under the



facts herein, a strong inference is raised that race is 
the sole reason for Mr. Shaw’s termination. Chambers 
v. Hendersonville City Board of Educ. 364 F. 2d 189, 192 
(4 Cir. 1966).

Third, Prentiss Counts had been coach and physical 
education teacher at Southside High School in previous 
years. He was not dismissed at the close of the 1966-67 
school term but neither was he considered for a compar­
able position in the white high school. Instead, he was 
demoted to the Negro elementary school. During the 
summer of 1966, the Nashville coaching position became 
vacant, a foreseeable event by appellees, but Mr. Counts 
was not considered for it; instead, the white assistant 
coach was promoted to coach. Neither was Mr. Counts 
considered for the assistant coach vacancy; instead, a 
white person from another school district was named to 
fill it. The reason given by Mr. Moody was that Mr. 
Counts could not “ fill that position anyway . . . that is a 
football position and he is a basketball coach, has no ex­
perience in football”  (R.130). Clearly, Mr. Counts was 
employed by appellees, as were appellants, as a Negro 
teacher for Negro pupils rather than as teacher for the 
system.

The district court did not indicate that it placed any 
weight upon the evidence re Mr. Counts.

Moreover, appellees do not plan to advise Mr. Walton 
and Mr. Shaw that they will be given any consideration 
in the event that future vacancies for which they are qual­
ified occur within the system, Smith v. MorriUon, supra. 
Nothing demonstrates appellees’ callousness and unfair­
ness in their treatment of Negro teachers unless, of course, 
it is their treatment of Mr. White, Mr. King and Mrs. 
Walton.

25 .



26

The district court found that appellees had made the 
required comprehensive comparison of Mrs. Walton’s 
qualifications with all other teachers in the system in ac­
cordance with “ well established procedures.”  (See dis­
cussion in argument I, supra). But the testimony con­
tradicts the Court’s ruling and finding. When Mr. 
Moody was asked: “ Did you say . . . you did not com­
pare Mrs. Walton’s qualifications with those other teach­
ers?”  He answered: “ Not all other teachers,”  (R.
130; see also R.154). This was corroborated by Judge 
Steel who stated:

“ It was my understanding as a school board 
member that when Mrs. Walton’s notification was 
written that we were comparing her qualifications 
with those of Mrs. Marie Stavely, who has been 
a member of our faculty for some several years 
to my knowledge and who is highly regarded by 
all who know her, not only as a splendid teacher, 
but as a lovely lady and a Christian lady, and we 
felt that she had better qualifications than did 
Mrs. Wlaton. It was our determination that if 
it was a matter of one of the two teachers, we pre­
ferred Mrs. Stavely”  (R.144).

There is no testimony to the contrary on this point. 
Moreover, it is corroborated by the treatment appellees 
accorded Mr. Walton, Mr. Shaw, (see discussion, supra) 
and Mr. King.3 Thus, the Court’s finding and ruling 
that appellees made an objective, system wide compar­
ison between Mrs. Walton and all other teachers in the 
system “ is clearly erroneous.”  28 U.S.C. Rule 52(a), 
Federal Rules of Civil Procedure. Although the treat­

3 Following the answer to the question re comparison of Mrs. 
Walton’s qualifications with all other teachers in the system, the 
following colloquy occurred between Mr. Moody and counsel:

“Q. And that is true with regard to Mr. King, isn’t it?

A. That’s right” (R.130).



27

ment accorded Mr. King was similar to that accorded 
Mrs. Walton, the trial court made no finding re the 
legality of Mr. K ing’s dismissal, damages sustained, costs 
or attorney’s fees.

Finally, appellees treatment of Mr. King and Mrs. 
Walton subsequent to their termination reflects unequal 
treatment between teachers who occupied equal status 
during the 1966-67 school term. Assuming arguendo that 
Mrs. Walton and Mr. King were less qualified for their 
positions than their white counterparts, this is not con­
clusive proof that they were less qualified than all other 
teachers in the system. Even assuming that they were 
also the least qualified teachers in the system, there were 
vacancies which occurred in the system which they may 
have been able to fill had they been given the opportunity 
to do so. Especially is this true when many teachers 
in Nashville were teaching outside their field of prepara­
tion. For example, the position of agriculture teacher 
in the white school was left vacant by that person’s pro­
motion to the principalship of Nashville high school. 
Appellees did not consider assigning Mr. King to fill it. 
Instead, they employed a white person from outside the 
system in preference to Mr. King who met necessary 
qualifications. Furthermore, Mr. King was not consid­
ered for any of the other vacancies which occurred prior 
to trial. Had it not been for the large number of Negro 
pupils preregistering to take vocational agriculture, Mr. 
King would not have been afforded the job offered him 
as agriculture teacher on the date of trial. Mrs. Walton 
was not so fortunate because apparently home economics 
was not as popular with the Negro girls as vocational 
agriculture was with the Negro boys. Moreover, ap­
pellees gave her no consideration for the vacancy in the 
white elementary school.



28

This case is factually somewhere between the two 
post -Brown cases in this circuit involving dismissal of 
Negro teachers as a result of unification of a dual school 
system. Brooks v. School District of City of Moberly, 
267 F. 2d 733 (8 Cir. 1959); Smith v. Board of Educ. of 
Morrilton, supra. Both cases deny that race is a legiti­
mate consideration for the employment, utilization or 
termination of teachers. In Brooks where dismissals 
were sustained, the appellees had: (a) promptly moved
to desegrated by 1955; (b) found it necessary to terminate 
a number of teachers; (c) advised each teacher of its 
plans; and (d) made a careful study of the qualifications 
of all teachers in the system. Although the eleven 
teachers found to be least qualified were Negro, a result 
characterized by the Court as “ unusual and somewhat 
startling,”  267 F. 2d at 739, the Court found no “ positive 
evidence that the Board was influenced by racial consid­
erations in the matter of employing its teachers.”  The 
Court went on to state:

“ There are a number of factors tending to 
negative any racial prejudice on the part of the 
Board. The integration was completed in a man­
ner satisfactory to all concerned. The wishes of 
the Negroes as to the integration were fully con­
sidered and observed. Before integration the 
Negro teachers were paid salaries equal to those 
of the white teachers, and the Negro school was 
furnished with the same type of equipment and 
supplies as the white schools.”  id at P. 740.

The standard invoked by the Brooks Court for de­
termination of the legality of teacher dismissals in the 
present context was whether the Board was motivated by 
“ unreasonable, arbitrary or . . . racial consideration.”  
id at 740. Smith stands for the proposition that after 
desegregation has begun, all teachers have equal footing.



29

Thus, it is required that where a Negro school is closed 
due to pupil integration pursuant to a freedom of choice 
plan, the displaced personnel must be absorbed at a min­
imum into the other schools in the system, Yarbrough v. 
Ilulbert-West Memphis Sch. Dist. No. 4, 380 F. 2d 962, 
967 (8 Cir. 1967), unless the Brooks type of objective 
comparative evaluation of all teachers in the system is 
made. In Brooks, the superintendent provided Ms Board 
with detailed information about not only the Negro teach­
ers but about all teachers. The Board then considered 
that information independently along with the recom­
mendation of the Superintendent, Here, the Board was 
never confronted with detailed information about any of 
the teachers, made no independent consideration and re­
lied instead solely on the recommendation of the Super­
intendent who himself did not compare the qualifications 
of all the districts’ teachers. Only with such detailed 
information can the required objective comparison be 
made, especially in this school system where the white 
superintendent has only had brief, limited contact with 
the Negro schools. Chambers v. Hendersonville City 
Board of Edu,, supra; Franklin v. County School Board 
of Giles County, supra; Smith v. Board of Educ. of Mor- 
rilton, supra.

Furthermore, appellees procedures in filling vacancies 
fall short of constitutional standards. First, Mr. Moody 
failed to advise the displaced teachers that to be consid­
ered for any future vacancy they must reapply. Second, 
appellees were willing to hire Mr. King after this litiga­
tion was initiated without his completing a new appli­
cation. Third, Mrs. Walton was considered for a posi­
tion in the Negro elementary school before her termina­
tion but there were no vacancies. These factors strongly 
suggest race as the lone motive for appellees conduct and 
thus disclose “ an unconstitutional selection process.”



30

Smith v. Board of Educ. of Morrilton, supra at Pp. 782, 
783; Franklin v. County School Board of Giles Comity, 
supra; Wall v. Stanly County Board of Educ., F.
2d ___ , (4 Cir. 1967); Chambers v. Hendersonville City
Board of Educ., 364 F. 2d 189 (4 Cir. 1966). See also, 
Note, Discrimination in the Hiring and Assignment of 
Teachers in the Public School Systems, 64 Mich. L. R. 
692 (1966). Reversal is thus clearly warranted because 
of appellees “ invidious,”  racially discriminatory and ar­
bitrary treatment of appellants.

iii

Because of Appellees unconstitutional treatment of A p­
pellants and because of Appellees refusal to comply 
with their desegregation plan, Appellants are en­
titled to the relief of reinstatement, damages, at­
torneys’ fees, costs; or appropriate alternative relief.

The record discloses strong evidence of appellees’ 
invidious and unfair racial prejudice in their termination 
and other actions of and toward appellants. In­
deed, in a previous case, appellees agreed to a 
faculty desegregation dismissal provision as a con­
dition for the entering of a dismissal order by 
the district court which, as shown, supra, was flagrant­
ly and callously violated. Appellants were thus forced 
into this litigation to protect their rights. Thus, appel­
lants are entitled to the equitable relief of damages, at­
torneys’ fees, and costs. Bell v. School Board of Pow­
hatan County, Va., 321 F. 2d 494, 500 (4 Cir. 1963); Smith 
v. Board of Educ. of Morrilton, 365 F. 2d 770, 784 (8 
Cir. 1966); Chambers v, Hendersonville City Board of 
Educ., 364 F. 2d 189, 193 (4 Cir. 1966); Johnson v. Branch, 
364 F. 2d 177, 182 (4 Cir. 1966).



31

Moreover, equity requires that Mr. White and Mrs. 
Walton also be reinstated; or that relief more appropriate 
be fashioned as was done by this Court in Smith. See 
also, Kelley v. Altheimer, 378 F. 2d 483 (8 Cir, 1967).

Further, under the circumstances, if this court grants 
the requested relief, petitioners are further entitled to a 
protective order from this court which enjoins appellees 
from punishing or attempting to penalize them because 
appellants prosecuted this action.



32

CONCLUSION
For the foregoing reasons, appellants respectfully 

pray for an order of reversal.

Respectfully submitted,

J ohn  W . W alker  
N orman  J . C h a c h k in  
1304-B Wright Ave.
Little Rock, Arkansas 72206

J ack  G reenberg 
J am es M . N abrit , III 
M ichael  M . M eltsner 
10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Appellant

CERTIFICATE OF SERVICE

I hereby certify that I haim served two copies of this 
brief upon Mr. Boyd Tackett, Texarkana, Arkansas, by 
depositing same addressed to him in the U. S. Mail, post­
age prepaid, this 23rd day of January, 1968.

John W. Walker 
Attorney for Appellants



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