Freeman v. Gould Special School District Reply Brief for Appellants

    I n  t h e

luttrii Court of KppmIs
F or t h e  E ig h t h  C ir c u it  

No. 19,016 
Civil

J esse  F r e e m a n , E ssie  M. Callow ay , I n e z  N ic h o l s , L ois 
W a lk er , T h er esa  N . W il h it e , E a rlen e  W oods, a n d  

T h e  A rk a n sa s  T ea c h er s  A ssociation , I n c .,
Appellants,

— v .—

T h e  G ould S pe c ia l  S chool  D ist r ic t  op  L in c o l n  C o u n t y , 
A rk a n sa s , a Public Body Corporate; T. R aymond  S age, 

a n d  H orace I tty  D a lto n ,
Appellees.

a p p e a l  f r o m  t h e  u n i t e d  s t a t e s  d i s t r i c t  c o u r t  f o r  t h e

E A ST E R N  D IS T R IC T  OF A R K A N SA S, P IN E  B L U F F  D IV ISIO N

REPLY BRIEF FOR APPELLANTS

J ack  Green berg  
M ic h a e l  M e l t sn e r  
C onrad K. H arper

10 Columbus Circle 
New York, New York 10019

J o h n  W . W a lk er  
N orm an  J .  C h a c h k in

1304-B Wright Avenue 
Little Rock, Arkansas 72206

G eorge H oward

329% Main Street 
Pine Bluff, Arkansas

Attorneys for Appellants



I N D E X
PAGE

Statement of Point to Be Argued ............................... 1

A r g u m e n t—

Appellants’ Rights to Due Process of Law Were 
Violated by the Procedures of the Gould Special
School District in Not Reemploying Them ........ . 2

C o n c lu sio n  ............................................................................... ...........  8

T able of Ca s e s :

Alpert v. Bd. of Governors of City Hospital of Fulton,
286 App. Div. 542, 145 N.T.S. 2d 534 (1955) ........ . 2,5

Brown v. Board of Education, 347 U.S. 483 (1954) .... 2, 6, 7

Hanifan v. United States, 354 F.2d 358 (Ct. Cl. 1965) ..1, 3, 4

Johnson v. City of Ripon, 259 Wis. 84, 47 N.W. 2d 328
(1951) .......... ................................................. ..... ........ 1,5

Johnson v. Wert, 225 Ark. 91, 275 S.W. 2d 274 (1955) .. 2, 7

Morgan v. United States, 304 U.S. 1 (1937) .......... 2, 3, 5, 7

Osborne v. Bullitt County Board of Education, 415 
S.W. 2d 607 (Ky. 1967) .................................. .......2,6,7

Raney v. Board of Education, 381. F.2d 252 (8th Cir. 
1967), cert, granted, 389 U.S. 1034 (No. 805, 1967 
Term) ............... ..................... ....................... .......... . 2, 7

Shelton v. Tucker, 364 U.S. 479 (1960) ...... ................ 2,6

State ex rel. Steele v. Board of Education of Fairfield,
252 Ala. 254, 40 So. 2d 689 (1949) ........................ 2, 3, 5



11

S t a t u t e :
PAGE

Ark. Stat. Ann. § 80-1304 .................-..........................  7

O t h e r  A u t h o r it y :

Developments in the Law—Academic Freedom, 81 
TIarv. L. Rev. 1045 (1968) ...............-.......................  7



I n  t h e

Imtpft Btntm (Hamt uf Appeals
F oe t h e  E ig h t h  C ir c u it  

No. 19,016 
Civil

J esse  F r e e m a n , E ssie  M. C allow ay , I n e z  N ic h o l s , L ois 
W a l k e r , T h eresa  N. W il h it e , E a rlen e  W oods, a n d  

T h e  A rk a n sa s  T ea c h er s  A ssociation , I n c .,

Appellants,
— v.—

T h e  G ould  S pe c ia l  S chool  D ist r ic t  of L in c o l n  C o u n t y , 
A rk a n sa s , a Public Body Corporate; T. R a y m o n d  S age, 

and H orace I tty  D a lto n ,

Appellees.

A P P E A L  FRO M  T H E  U N IT E D  STA TES D IST R IC T  COU RT FO R  T H E  

E A ST E R N  D IST R IC T  OP A R K A N SA S, P IN E  B L U F F  D IV ISIO N

REPLY BRIEF FOR APPELLANTS

STATEMENT OF POINT TO BE ARGUED

Appellants’ Rights to Due Process of Law Were Vio­
lated by the Procedures of the Gould Special School 
District in Not Reemploying Them.

Hanifan v. United States, 354 F.2d 358 (Ct, Cl. 
1965);

Johnson v. City of Ripon, 259 Wis. 84, 47 N.W. 
2d 328 (1951);



2

Morgan v. United States, 304 U.S. 1 (1937); 
Osborne v. Bullitt County Board of Education,

415 S.W. 2d 607 (Ky. 1967);
Alpert v. Board of Governors of City Hospital 

of Fulton, 286 App. Div. 542, 145 N.Y.S. 2d 
534 (1955);

Brown v. Board of Education, 347 IJ.8. 483
(1954) ;

Johnson v. Wert, 225 Ark. 91, 275 S.W. 2d 274
(1955) ;

Raney v. Board of Education, 381 F.2d 352 (8th 
Cir. 1967) cert, granted 389 1T.S. 1034 (No. 
805, 1967 Term) ;

Shelton v. Tucker, 364 U.S. 379 (1960);
State ex rel. Steele v. Board of Education of 

Fairfield, 252 Ala. 254, 40 So. 2d 689 (1949).

ARGUMENT

Appellants’ Rights to Due Process of Law Were Vio­
lated by the Procedures of the Gould Special School 
District in Not Reemploying Them.

In attempting to sustain the actions of the school board 
in not rehiring appellant teachers, appellees make two prin­
cipal arguments: (a) appellees claim that unless appellants 
were engaged in protected constitutional activities, appel­
lants were not entitled at the time of their discharge to due 
process of law under the Fourteenth Amendment (Appel­
lees’ Brief, pp. 15-21) ; and (b) assuming arguendo appel­
lants’ rights to procedural due process, that such rights 
were not violated (Appellees’ Brief, pp. 22-25). The fol­
lowing reply brief is a short rejoinder to these arguments.1

1 Appellees have presented a statement of facts somewhat dif­
ferent from that contained in appellants’ brief at pp. 4-21, 27-30, 32.



3

We submit appellees have totally misconceived the nature 
of procedural due process and failed to recognize that the 
Constitution forbids arbitrary or capricious governmental 
action in removing teachers from their positions. Princi­
ples forbidding arbitrary action by public bodies are well 
illustrated by Morgan v. United States, 304 U.S. 1 (1937), 
where an order of the Secretary of Agriculture fixing maxi­
mum rates chargeable by stockyard markets was set aside. 
The Morgan court reasoned that procedures provided by 
the Secretary for challenging administrative orders were 
insufficient under the Due Process Clause. The court held 
that: “The right to a hearing embraces not only the right 
to present evidence but also a reasonable opportunity to 
know the claims of the opposing party and to meet them.” 
304 U.S. at 18. See also State ex rel. Steele v. Board of 
Education of Fairfield, 252 Ala. 254, 40 So. 2d 689 (1949), 
where due process principles were applied to the discharge 
of a tenured teacher.

It is undisputed that Principal Dalton, appellants’ chief 
accuser, was not present at either of the board hearings 
granted after appellants were not rehired (R. 85, 223, 250). 
Dalton also testified that he did not give any of appellants 
advance notice of his adverse recommendations (R. 111). 
Notwithstanding these facts, appellees seek to defend the 
Board’s actions by stating that “Dalton had mentioned his 
complaints to appellants at faculty meetings prior to his 
recommendation and the Board’s action (R. 39)” (Brief for 
Appellees, p. 23). A reading of the record at page 39, cited 
by appellees, shows, however, that the essence of Dalton’s 
vague testimony is this: “when I call my faculty meetings, 
I just didn’t specify the person, see. I  talked to the whole 
group” (R. 39).

Appellants do not propose to reargue the facts at length but we do 
urge the Court to examine the entire record in resolving factual 
issues.



4

Appellees further assert, dehors the record, “Appellants 
never requested an opportunity to confront and cross- 
examine Principal Dalton at a hearing” (Brief for Appel­
lees, p. 23). This is not true. At the second hoard hearing, 
appellants’ counsel, Mr. Walker, specifically requested that 
Mr. Dalton he present but this request was denied. Present 
at the second board hearing when this request was made 
were, among others, Robert V. Light, counsel for appellees; 
members of the school board; appellants; and George 
Howard, counsel for appellants. Appellees’ failure to pro­
duce Dalton at any board hearing is analogous to the illegal 
failure of the Civil Service Commission under its regula­
tions to produce the chief accusers of a discharged civil 
servant at a Commission hearing. Hanifan v. United States, 
354 F. 2d 358 (Ct. Cl. 1965).

Appellees also seek to defend the absence of Dalton at 
the board hearings by noting Dalton’s deposition was taken 
by appellants between the first and second hearings. (Brief 
for Appellees, p. 23). This view, however, ignores the 
crucial fact that the charges against appellants were differ­
ent at each board hearing and at trial (R. 219-220, 222, 233- 
235). Thus in no real sense could the deposition of Dalton 
be held to have given appellants adequate notice of all 
reasons for the board’s continued refusal to rehire them. 
Appellees seek to sweep this problem under the rug by 
admitting “appellants were questioned about different inci­
dents at varying stages of the proceedings” but denying 
that such questioning constituted different sets of charges 
(Brief for Appellees, p. 23). In view of the fact that appel­
lees’ case, such as it is, consists largely of alleged instances 
of appellants’ misconduct (see Brief for Appellants, pp. 
11-21, p. 32 n. 8), we are unable to perceive any rational 
basis upon which to subscribe to appellees’ distinction be­
tween “charges” and “incidents”. Appellees’ distinction



5

does, however, demonstrate the true nature of the board’s 
actions: Having dismissed appellants without prior notice 
to them, the board was acting in the words of State ex rel. 
Steele v. Board of Education of Fairfield, supra, 252 Ala. 
at 261, 40 So. 2d at 695, as “complainant, prosecutor and 
judge” in seeking any basis upon which to ratify its earlier 
decision not to reemploy appellants, or, as appellees put 
it, these “were newly discovered incidents which the Board 
deemed probative of the truth of the principal’s charges of 
incompetency and non-cooperation” (Brief for Appellees, 
P- 23)

Appellees suggest, moreover, that discharge of a non- 
tenured teacher who engaged in no constitutionally pro­
tected activity, is affected by no due process requirements 
(Brief for Appellees, p. 12, 19). It must not be forgotten 
in this context, however, that appellants’ contracts were 
terminated without notice or a hearing (R. 218, 222, 224). 
Courts have found, in the analogous situation of a public 
hospital’s removal of qualified physicians from its medical 
staff without notice or a hearing, that such procedures vio­
late due procss. Johnson v. City of Ripon, 259 Wis. 84, 47 
N.W. 2d 328 (1951); Alpert v. Bd. of Governors of City 
Hospital of Fulton, 286 App. Div. 542, 145 N.Y.S. 2d 534 
(1955).

Appellees assert that the charges against appellants are 
sufficient to sustain the board’s actions (Brief for Appel­
lees, p. 21, and n. 3). This assertion overlooks the require­
ments of due process, particularly the requirement of 
specificity of alleged misbehavior. Putting aside for the 
moment the issue that appellants met different charges at 
each stage of the proceedings, it is clear that none of the 
charges against them was sufficiently specific.2 Remark­

2 The charges are set out in Brief for Appellants, pp. 11-21, p. 32, 
n. 8.



6

ably similar charges were made against a teacher in Osborne 
v. Bullitt County Board of Education, 415 S.W. 2d 607 
(Ky. 1967). The Osborne charges set out in the margin3 
were held “to be too vague and indefinite to furnish the 
appellant with sufficient information upon which he could 
base a defense,” 415 S.W. 2d at 610. The court further 
held, on the basis of a state statute and due process, that 
dismissal of a teacher so charged, who also had a contract, 
was invalid.

Given the disapproving words of the Supreme Court as 
to the unconfined latitude permitted school authorities by 
Arkansas law in not reemploying teachers, Shelton v. 
Tucker, 364 U.S. 479, 485-86 (1960), the opportunity for 
capricously not reemploying appellants was present and,

3 415 S.W. 2d at 608:
“1. Insubordination based upon fact that you refuse to co­

operate with the principal of your school in the conduct of 
the school and the orders issued by him and your conduct 
toward him has been such that it is disruptive of the 
progress of the school.

“2. You have distributed alleged copies of confidential records 
from files of the school that have because of your so doing 
has violated instruction of your superiors in office and 
created prejudices against the manner in which the school 
has been conducted (sic).

“3. You have failed to properly instruct the pupils in the sub­
jects taught by you and do not have proper attention from 
or control over your pupils.

“4. You have installed in your room, where you teach, a punch­
ing bag, without necessary permission to do so and without 
permission have moved basketball basket from where they 
were located (sic) to other places.

“5. Your suggestion as to conduct of P.T.A. has been such as 
would cause same to be discredited if followed out.

“6. Your conduct in connection with teaching has not been for 
best interest of the school.

“7. In threatening to file suit against the principal of the 
school and statements included in the copies of confidential 
reports distributed by you (sic).”



as the facts of this case show, well used.4 An irony of the 
instant case is that since Ark. Stat. Ann. § 80-1304 author­
izes the non-reemployment of teachers for any reason or 
without reason (Johnson v. Wert, 225 Ark. 91, 275 S.W. 2d 
274 (1955)), appellees argue the board’s hearings—with all 
their infirmities—exceeded the requirements of due process 
(Brief for Appellees, pp. 22-25). If § 80-1304 had explicitly 
authorized non-reemployment merely because a principal 
personally disliked a teacher, there would be little difficulty 
in successfully challenging the statute as unconstitutionally 
broad, cf. Osborne v. Bullitt County Board of Education, 
supra, 415 S.W. 2d at 610. But § 80-1304 authorizes entirety 
arbitrary discharges and this record, showing Principal 
Dalton’s incompetence and the school board’s utter reliance 
upon him and upon different “reasons” for appellants’ dis­
charges at every turn, demonstrates that appellees have not 
hesitated to be, in fact, entirely arbitrary.

In the broadest sense this case presents the issue whether 
the academic freedom of teachers to be unpopular with 
their principal is safeguarded by due process of law. See 
Developments in the Law—Academic Freedom, 81 Harv. L. 
Rev. 1045, esp. 1077-84 (1968). Appellees suggest that ap­
pellants as non-tenure teachers, received adequate, indeed 
exceptional, due process (Brief for Appellees, pp. 22-25). 
We submit, however, that our original brief and the fore­
going argument demonstrate such a host of constitutional 
infirmities that the district court’s judgment cannot stand.

4 Appellees make much of the fact that appellants purportedly 
were discharged on non-racial grounds (Brief for Appellees, p. 18). 
But the instant case has not arisen in a vacuum. Many years after 
Brown v. Board of Education, 347 U.S. 483 (1954), and only 
shortly before appellants were not rehired, the school district con­
tinued to operate all-white and all-Negro schools. Haney v. Board 
of Education, 381 F.2d 252, 256 (8th Cir. 1967), cert, granted, 389 
U.S. 1034 (No. 805, 1967 Term).



8

CONCLUSION

For the foregoing reasons, and the reasons contained in 
the appellants’ original brief, appellants submit that the 
judgment of the district court should be reversed or in the 
alternative, that the district court’s judgment should be 
vacated and the cause remanded for additional findings of 
fact.

Respectfully submitted,

J ack  G reen berg

M ic h a e l  M e l t sn e r

C onrad K. H arper

10 Columbus Circle 
New York, New York 10019

J o h n  W . W a lk er

N orm an  J .  C h a c h k in

1304-B Wright Avenue 
Little Rock, Arkansas 72206

G eorge H oward

329*4 Main Street 
Pine Bluff, Arkansas

Attorneys for Appellants



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