Head v. Blakeney Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

:« FOR THE FIFTH CIRCUIT
NO. 305 60‘ m

ROSA A HEAD and CLARA BELLE McCRARY, Individually and on behalf of all 
others similarly situated,

Plaintif fs-Appe Hants,
- vs -

R. D. BLAKENEY, Individually and as 
Superintendent of Schools of the Gainesville, Georgia, City School 
District, et al.,

Defendants-Appellees.

i
> BRIEF FOR APPELLANTS

v JACK GREENBERG
*' JAMES M. NABRIT, III

NORMAN J. CHACHKIN
i * CONRAD K. HARPER10 Columbus Circle 

Suite 2030
New York, N.Y. 10019

HOWARD MOORE, JR.
PETER E. RINDSKOPF

Citizens Trust Company 
Bank Building 

75 Piedmont Avenue, N.E. 
Suite 1154
Atlanta, Georgia 30303

Attorneys for Plaintiffs- 
Appe Hants



I N D E X

Page

Statement of Issue presented for Review ............  1
Statement of the c a s e ..............................  2
Statement of Facts 3

Introduction ..................................  3
Appellant Rosa H e a d ..........................  5
Appellant Clara Belle McCrary ................  8

Argument
Appellant Black Teachers Were UnconstitutionallyNot Rehired by Appellee School District onRacial Grounds ................................  ^0

Conclusion........................................  24
Certificate of Service ............................  25

i



Table of Authorities;

Cases;
Brown v. Board of Education, 347 U.S. 483 (1954)
Chambers v. Hendersonville City Board of

Education, 364 F.2d 189 (4th Cir. 1966) . .13, 14
Franklin v. County School Board of Giles County,360 F.2d 189 (4th Cir. 1966) ..................
Gouge v. Joint School Dist. No. 1, 310 F. Sudd 984 (W.D. Wis. 1970).................. ..
Hill v. County Board of Education of Franklin

County, Tennessee, 390 F.2d 583 (6th Cir. 1968).
Jackson v. Wheatley School District, No. 19952,

2 FEP Cases 887 (8th Cir. August 11, 1970) . . 23,
Lucas, et al. v. Chapman, et al. F.2d(C.A. 5, decided 8-6-70)............ “ 7
McFerren v. County Board of Education of Fayette County, Tennessee, civil No. 65-136 

(W.D. Tenn. November 5, 1970).............  21,
North Carolina Teachers Association v. Asheboro 

City Board of Education, 393 F.2d 736 (4th Cir. 1968)..................................  12,
Rolfe v. County Board of Education of Lincoln County, Tennessee, 391 F.2d 77 (6th Cir.

1968> ............................ ..
Smith v. Board of Education of Morrilton School

District No. 32, 365 F.2d 770 (8th cir. 1966) . .
Wall v. Stanly County Board of Education, 378 F.2d 

275 (4th Cir. 1967)........................  12,
Williams v. Kimbrough, 295 F. Supp. 578 (W.D. La. 1968) ......................................

Page

4

, 21 
13 

22 

13 

, 24 

22

22

13

22

13

13

13

li



page
Constitutional provisions

Thirteenth Amendment ..........................  1,2
Fourteenth Amendment ..........................  1, 2

Statutory provisions
28 U.S.C. § 1343(3)........................... 2
42 U.S.C. § 1981.............................. it 2

42 U.S.C. § 1982 ............................... 2
42 U.S.C. § 1983 ............................... i
42 U.S.C. § 2000(d)..........................  lf 2
45 C.F.R. § 9 0 . 4 ............................. 2
45 C.F.R. § 1 8 1 ................................  2



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 30560

ROSA A. HEAD and CLARA BELLE 
McCRARY, Individually and on be­half of all others similarly 
situated,

Plaintiffs-Appellants, 
- vs -

R.D. BLAKENEY, Individually and as 
Superintendent of Schools of the 
Gainesville, Georgia, Sith School District, et al.,

Defendants-Appellees.

BRIEF FOR APPELLANTS 

Statement Of Issue Presented For Review

The issue for review is whether the district court 
erred in dismissing the complaint under the Thirteenth and 
Fourteenth Amendments, 42 U.S.C. Sections 1981, 1983 and 
2000-d et seq. where the record showed that appellants, black 
teachers, were not rehired because of race and the application 
of arbitrary, vague and capricious standards to their conduct.



Statement of rh^
This is an appeal iron, an order of the District

Court for the Northern District ^Ulstrict °f Georgia, Gainesville
Division,denying injunctive relief, salary parents, and 
attorneys fees sought hy blacK appellants following ^
district's refusal to reemploy them as teachers for the
1969-70 school year (716-717) — »717). Appellants Rosa A. Head
and Clara Belle McCrary instituted this action on dune 2. 
1969 against school superintendent R.D. Blakeney individ­
ually and as Superintendent of Schools; the Gainesville 
City Board of Education; dack P. Nix individually and as 
Georgia state Superintendent of Schools; and the Georgia 
State Board of Bducation ,4,. action was Brought pur­
suant to 28 O.S.C. §1343(3); 42 U.S.C. §§1981. 1982> 20Q0

— a - 5 C.F.R. §§90.4 and 181 et se&. ; the Thirteenth
and Fourteenth Amendments (4) ^  _  . .; ^  complaint asserted that
the hoard's refusal to rehire appellant teachers was racially
motivated m  violation of their federal statutory and con­
stitutional rights (7).

Following a pretrial conference the district court 
on dune 20, 1969. granted defendants' Motion to Dismiss

— ^ Citations are to -.
the toP center of each paqe^^Thi™ PJge nuinbers found 1̂ 9 ls not numbered and th^foi l T1?rou5h an oversight page

•?A'?Y„hart ree£erred ‘““  r «  m a nl„r?2e^ S * " * “ •<» «S.A Which follows page numbers in 129b‘ The letterdeleted in the citation^ h® aPPendix has been

2



State Superintendent Nix and the Georgia State Board of 
Education as defendants for failure to state a claim upon 
which relief could be granted (44, 75-77). Appellants 
thereupon filed Motion to Alter or Amend the Order on June 
21, 1969 (97); on June 24, 1969, appellees filed their 
answer in substance denying the allegations of racial dis­
crimination and requesting that judgment be entered in their 
favor (107, 108). A non-jury trial was held June 23 and 24, 
1969 and on July 31, 1970 the district court issued an 
order denying appellants' prayer for relief on the ground 
that no racial discrimination was shown (716, 717). At the 
same time the district court also denied appellants' Motion 
to Alter or Amend, stating that the state's liability must 
derive from a finding of racial discrimination (717). 
Appellants noticed an appeal on August 21, 1970 (721).

Statement of Facts
Introduction

The Gainesville City School District (hereinafter 
referred to as the city district) has 4530 students of whom 
1408, slightly fewer than one-third, are black (124, 125,
126). The city district has 167 teachers of whom 46 are 
black (127, 128, 130, 131, 132). The city district is 
characterized by long-standing and continuous discrimina­
tion on the basis of color. In November, 1953, less than a

3



year before the decision in Brown v. Board of Education. 347 
U.S. 483 (1954), the city district entered into a twenty-one 
year contract with the Hall County Board of Education, in 
which all of the black children residing in the County out­
side of the City of Gainesville would attend school in the 
city district (513). A separate contract governed the educa­
tion of white children who lived in the County but attended 
school in town (143a). The County was able to develop and 
maintain an all-white school system through the performance 
of these contracts. The city district took no steps to de­
segregate its school system following the Brown decision.
It was not until the passage of the Civil Rights Act of 1964 
that the city district moved to desegregate its system and 
presented a plan of desegregation to the Department of Health, 
Education and Welfare (134, 135). The plan, originally pro­
viding for geographic zoning and so-called freedom of choice, 
has been twice modified (135). As the following chart shows, 
neither the original plan or any of its modifications has 
resulted in substantial desegregation of the school system.
The modified plan as of June 1, 1969 was rejected by the 
Department of Health, Education and Welfare because it de­
layed desegregation longer than the requested period (140).

4



1968-69 School Year(709)• 
---Elementary Schools

StudentsWhite Blapk Teachers

Miller park 
Main Street 
Enota 
Candler

E. E. Butler 
Gainesville

School o 723 4 23
290 25 13 0
302 37 16 0
612 6 21 1
438 8 18 0

Junior High School
High 506 113 27 1

High Schools
1 474 5 21

861 21 38 1
---- ... ouraen of desegregating

the city district school system, since the city district
commenced deselection, there has been a steady attrition of
black faculty members in the school system which increases the 
decline in black pupil enrollment;

Percentage of Gainesville rit^  School District(a«,,.
Black Students Black Faculty

1966-67
1968- 69
1969- 70

39%%
34%
29%

37%
26%
25%

in the academic year immediately preceding this
action, the city district employed a total of 57 new teachers
30 at the beginning of the school year 1968-69 and 27 to fill 3C
teaching vacancies existing at the end of the school year 1968-
69 (157) . only two of these 57 newly employed teachers

- 5 -



have been black (157). One of the two, a Miss Jenkins of 
Savannah, Georgia, was hired because the Superintendent was 
personally acquainted with persons who knew of her family 
background (509, 510). The city district recruits mainly 
from predominately white or all white colleges and universities 
located in Georgia, three of which are branches of the 
University of Georgia System (173, 512).

The district court found that on February 20, 1969 
the personnel committee of the Gainesville City Board, and 
all eight school principals examined the entire list of 
teachers then employed and decided to recommend that nine 
teachers, six of whom were white and three of whom were black, 
not be offered new contracts. Two of the black teachers not 
recommended filed this action.

Appellant Rosa Head
Miss Head is a college graduate, with a major in 

business education (434). She holds a T-4 teaching certificate 
which certifies her as a professional teacher in Business 
Education (439). Miss Head has earned three hours credit 
toward her Master's Degree by attending a summer seminar on 
business education at Georgia State College, the Atlanta 
branch of the University of Georgia System (434).

6



The district court in describing the evaluation 
process used by the District stated (711);

SjrdY^ eL USed-by thG Gainesville City Board of Education to determine which
teachers would be re-offered contracts
on heavily although not exclusively.
£ e n e £ a l l v 10° °f the ®uPerlntendent. generally, in January or February the
principals are required to turn in to the
^ PJf1”te”dent an evaluation of each teacher
Dlaced^ facultfes- These evaluations are ^ ? a ratlng sheet and the super-
P?£Siwl P n T aa11? reviews these Sith each
M^iSHTthe ™ ,  ? ant suP<=tintendent alsoreviews the evaluations. Further the
superintendent consults with sup^rvisSrvpeople from his central office fXff
system-wide responsibilities, i.e.f thSlanguage arts consultant, the reading
specialist, and the art director Based
S r v a i L n i f ? r a t i ° n and from any P er so n a lJrvatl?”s the superintendent may have 
r- dl ' he tlien makes his recommendations
m?ftS:"e5!Pityment to the Personnel com-
S i « m l e  t ^ S B°ard‘ The C“ ittee may t i ^ r  w  Perintendent's recommenda- tions, but it generally concurs and makes

^®c°nuyiendations to the full Board which has the final decision on the matter
by the Board from the superin- 

t i S n r L Sr«e.the co™ ittee's recommenda-

Supperintendent Blakeney clearly favored the white 
teachers and their white principal in deciding which of the 
four commercial education teachers would not be offered a 
contract for the year 1969-70. Superintendent Blakeney 
asserted that he placed no greater weight on the evaluation 
of two white teachers. Miss Glass and Mrs. Presnell by Mr.

7



Segars, the white principal, than he placed upon the evaluation 
of Miss Head and Mrs. carter by Mr. Baylor, the black principal 
(214). But it is clear from the following chart showing the 
principals' evaluation that appellant Head scored higher than 
at least one of the rehired white teachers, Miss Glass, and has
more experience than the other, Mrs. presnell.

Comparison of Appellant Head with Other Commercial 
Education Teachers in System Offered Employment by 
Appellees in 1969-70 As Evaluated by principals.__

above belowRace Superior Average Average Average Unknown Experience
Appellant

Head B 2 11 10
Mrs. presnell W — 17 5
Miss Glass W — 10 10
Mrs. Carter B 2 17 4

3 yrs.
1 2 yrs.3 more than 3 yrs.more then 3yrs .

Appellant Clara Belle McCrary 
Miss Clara Belle McCrary has taught in the Gainesville

City District for twenty-one years (337). She holds a A. B. 
degree from Clark College and a Masters degree from Atlanta 
University (335). Miss McCrary has done further study in 
reading at Howard university in Washington, D.C., and Ball 
State College in Muncie, Indiana (335). All of her experience 
has been with third and fourth grade students in the all­
black Fair Street Elementary School (338). Mrs. Trawick, the 
black present principal of Fair Street, testified that 
Miss McCrary "had been an effective teacher for the last . .

8



yeaî s she has been therp" ..(273). Mrs. Trawick testified that
Miss McCrary "is liked by the children vy ie cniidren and her co-workers too"
(273). Mrs. Trawick recommended that Miss McCrary be re­
employed and is willing to accept her as a teacher at Fair 
Street Elementary (280, 281, 283).

The decision not to re-employ Miss McCrary is the 
product, in part, of the application of indefinite and non­
objective standards of evaluation. The white art coordinator 
for the city district, Mrs. DeLa Perriere, testified that 
Miss McCrary would be the weakest teacher with respect to 
art in the system (553). On cross examination, however, 
it appeared that Miss McCrary did not teach as much art as 
Mrs. DeLa Perriere would have desired (554-556). Mrs. DeLa 
Perriere emitted that she never expressed any complaints about 
Miss McCrary's methods to Miss McCrary (559). The coordinator 
made no allowance for the fact that Miss McCrary attempted 
to correlate the art experience of her students with the 
materials they were reading. The coordinator demonstrated 
no appreciation of the difficulties encountered in teaching 
children from impoverished backgrounds and limited life 
experiences. It is clear from the record that Miss McCrary.s 
understanding and commitment to the welfare of the children 
extend beyond normal school hours, she manages a private 
library located directly opposite the Fair

9



Street School which was named for her by the children who 
use it (272) .

The white reading specialist, Mr. Massey,
testified that Miss McCrary was a poor teacher of reading
(309) and did not organize her class to his liking (314)
He never brought this view to her attention and approved her
lesson plans all year (306-07). Massey further claimed that
Miss McCrary did not differentiate on the basis of ability
levels among her students and taught them all at a fourth
grade level and did not provide sequential materials (311).
Miss McCrary contradicted this testimony at trial and
demonstrated that she did differentiate among ability levels
of her pupils and systematically identified achievement
levels so that students could be grouped accordingly (371, 
372, 373).

argument

omJ>mL^ NT BLACK teachers were uncon­stitutionally NOT RE HI RED BY APPELIEE SCHOOL DISTRICT ON RACIAL GRoS^S
The district court in its seventh numbered 

finding of fact held (710) :

S T t h ^ L f ® ? 3011 f°r the overa11 reductionCitv L ^ p  f 9 fiaff of the Gainesville y System for the school year 1969-70
Gain^e -^?SS °f blaCk studonts from the Gainesville City system to the Ball County system.

10



The finding is amply supported by the evidence. 
Appellant McCrary testifying on her notice of the non-renewal 
of her contract stated the following (378-79):

Q. Now that conference was held at the Fair 
Street School?

A. Yes it was
Q. And was it called by you or the super­

intendent?
A. By the Superintendent
Q. And what was the purpose of this conference?
A. When I arrived there I learned it was a 

conference to explain that Negro students 
were being dropped, there would be no need 
for the same number of teachers, that my 
contract was being withheld until it could 
be seen whether or not I would be needed.

Appellant Head's testimony on this point is 
similar (444):

Q. Did you not also tell Mr. Baylor you weren't 
coming back anyway and it was perfectly 
all right?

A. No. This is the way the conversation went.
Once Mr. Ellenburg [asst, superintendent] 
came to the office and I was sitting there,

11



Mr. Baylor [Butler principal] was at this 
desk, and Mr. Ellenburg and myself were in 
Mr. Baylor's office, and he told me that 
they were losing students to the county and 
that they wouldn't have need for another 
commercial teacher at Butler High School, 
because the enrollment was being reduced.

The principles of law which govern the facts of 
this case have been summarized by the Fourth circuit, sitting 
—  in "all v. Stanly County Board of 378
F.2d 275 (4th cir. 1967) as follows:

m  1 L r % £ 0V lr!'lY establi=he'3 in this circuit U; that the Fourteenth Amendment forbids the 
Sielection, retention, and assignment of public 
school teachers on the basis of race; (2) that 
reduction in the number of students and faculty in
?hSrdTi^ Y all-Nebro school will not alone justify the discharge or failure to reemploy Negro teachers
in_?_S?h°o1 system'* (3) that teachers displaced from 
£-̂ ! f lY-faC11ally homogenous schools m u s A e  iudaed by_ definite objective stand*
Sr°^entHand (4J that a .teacher wrongfully discharged denied reemployment in contravention of these
entitled^1!' “  addiJ:ion to equitable remedies,
addedM78t0F a T r2d76°.f 3CtUal damages- " (emphasis
The principles set forth above have been applied

m  each of the following cases which have resulted in reversal
of decisions not to re-employ certain black teachers in a
school district which was moving to desegregate. North
Carolina Teachers Association v. Asheboro rn-y Board of

12



Education, 393 F.2d 736 (4th Cir. 1968); Rolfe v. County
Board of Education of Lincoln County, Tennessee, 391 F.2d 
77 (6th Cir. 1968); Hill v. County Board of Education of 
Franklin County, Tennessee, 390 F.2d 583 (6th Cir. 1968); 
Smith v. Board of Education of Morrilton School District No. 
32, 365 F.2d 770 (8th Cir. 1966); Chambers v. Hendersonville 
City Board of Education, 364 F.2d 189 (4th Cir. 1966); and 
Franklin v. County School Board of Giles County, 360 F.2d 
189 (4th Cir. 1966).

The district court agreed that the facts of this 
case shifted the burden to appellees to show that appellants 
were not being rehired on the basis of the application of 
definite objective standrads as required by North Carolina 
Teachers Assoc, v. Asheboro City Board of Education, supra; 
Rolfe v. County Board of Education of Lincoln County, supra; 
and Wall v. Stanely County Board of Education, supra. The 
district court below held (715-16):

"Initially, the burden of proof was on the 
the plaintiffs to show that they were denied 
employment solely because of their race. However, 
by showing the history of racial discrimination within the Gainesville City School District, in 
addition to the steady reduction in the proportion 
of blacks on the faculty since the City system 
began to cesegregate,the burden of proof 
shifted to the defendants. North Carolina 
Teachers Assoc, v. Asheboro City Board of 
Education, 393 F.2d 736, 2 A.L.R. Fed. 299 
(4th Cir. 1968); and Williams v. Kimbrough, 295 
F.Supp. 578 (W.D. La. 1968). While the de-

13



crease in the percentage of black teachers 
in Gainesville might not fairly be characterized as "a sudden disproportionate decimation" 
as in Chambers v. Hendersonville City Board of 
Education. 364 F.2d 189 (4th Cir. 1966) where 
only 7 out of 24 black teachers were retained 
by the board, the steady attrition of black 
teachers in Gainesville has been sufficient 
to shift the burden of proof to the defendants."
Miss McCrary clearly qualified for employment over 

several other white teachers. Miss McCrary's contract was 
not renewed despite the fact that a white teacher who was 
described as "timid, weak physically, poor personality" was 
re-employed to teach the third grade at Candler Elementary 
School (See. Exh. 14, Evaluation of Miss Elizabeth Growers). 
Miss McCrary has about seventeen years experience as a third 
grade teacher and is certified to teach that grade (337-38). 
Another white third grade teacher at Enota Elementary School 
was re-employed even though her principal thought that she 
should retire and that the teacher did not "have the know­
how to effectively organize her class" (Exh. 14, Evaluation 
of Miss Mary Summer).

Black teachers were singled out for dismissal. An 
examination of the evaluation forms, Exhibits 13 and 14 
shows that only the forms of black teachers were marked, 
"reduce here if necessary" by Supt. Blakeney.

Miss McCrary was the only primary grade teacher in the 
system with a master's degree and she was among the most 

experienced (256-57).

14



The decision of the board to ratify the determination 
of the superintendent not to re-employ plaintiffs is based 
entirely on race. First, the city district did not renew 
appellants' contracts because of the reduction in the number 
of black students attending its schools. Second, when the 
board voted on the contracts, the names of the teachers to 
be re-employed were listed racially by schools (631-41).

No whit e teachers were dismissed because of an 
expected reduction in the number of black students enrolled 
in the city district. Five white teachers were released 
but in each instance there was some reason to support the 
board's action independent of the reduction in enrollment.
Mrs. Cornelison was not employed because she was considered 
"really weak in subject matter and effectiveness" (Deposition 
of R.D. Blakeney at 105). Mrs. Pierce was released for 
health reasons( Ibid ). Miss Stephens was "weak" and "had 
difficulty . . . explaining the mathematics which she was
supposed to teach" (Id. at 106). Mrs. Whiten was not re­
employed because she was considered "immature" (Ibid).
Mrs. Dakotah Lee was dismissed due to some complaints from 
fhe community (Id. at 107) .

Appellees treated Miss McCrary arbitarily and violated 
their own vague standards of effectiveness. Initially Mr. 
Blakeley told Miss McCrary that she was being dismissed 
because of the expected reduction in enrollment. When she

15



pressed him, he added the ground that she was not an 
"effective" teacher (233-34). He explained the belated 
revelation of this ground by saying that he wanted to spare 
Miss McCrary any professional embarrassment by reflecting 
on her competence in his letter (233, 34, 35). The definition 
of an effective teacher according to Mr. Blakeney is one who 
is certified possesses "good moral character", educated, 
able to articulate, has the ability to know teaching tech­
niques and to use them properly (236). Miss McCrary is 
certified. She is very well-educated, widely read, and has 
travelled extensively. There has never been any question 
of Miss McCrary's moral character by anyone (239). Mr. 
Blakeney was unable to cite any specific examples where 
Miss McCrary lacked knowledge of teaching techniques or the 
ability to use them properly (240). Mrs. Trawick rated Miss 
McCrary above average in "skill in teaching" (249).

Superintendent R.D. Blakeney in explaining his 
decision not to offer a contract to appellant Head testified 
(499) :

Q. Mr. Blakeney, was it your opinion that 
Miss Head was the least effective of the 
four Commercial Education teachers?

A. This was my opinion, and my opinion, of
course, was based upon the evaluations which 
the principals had given these people, and

16



also the counsel which had been given me 
by my Asst. Superintendent who had spent 
more time observing than I. (emphasis added)

It is clear from the record that Mr. Blakeney did 
not base his decision on the evaluations made by the principals. 
Miss Head was more highly rated than either of the white 
teachers who were re-employed to teach commercial education 
in the white high school. Miss Head was rated superior in 
two categories by her principal. Neither of the white 
teachers. Miss Glass or Mrs. Presnail received a superior 
rating in any category (see chart supra) With regard to 
Miss McCrary the two principals under whom she worked, Mr. 
Baylor and Mrs. Mary Trawick both testified that Miss Me 
Crary was an effective teacher (Baylor Dep. at 17, 18) (273) .
Baylor stated that Miss McCrary was cooperative, willing to 
follow suggestions and an effective teacher (Baylor Dep. 
at 17, 18). He had recommended Miss McCrary every year 
since 1959 for re-employment, and in 1962 she was voted 
"Teacher of the Year" by her colleagues in the teaching 
profession (Id. at 15). Mrs. Mary Trawick testified Miss 
McCrary had been very effective in her library work in 
teaching young people to read (272, 273), that "she is liked 
by the children and her co-workers too" (272). Mrs. Trawick 
stated that she had recommended that Miss McCrary be re­
employed and is willing to accept her if appellees will 
give her a contract (280, 281, 282).

17



From the evidence it is clear that Superintendent 
Blakeney chose to disregard the evaluations and recommen­
dations of the black principals with regard to the re-hiring 
of the black teachers. It is submitted that these are the 
only criteria Blakeney asserts to have employed. Blakeney 
stated that in his judgment "graduate training per se is . .
relatively unimportant" (209). Blakeney confessed that the 
judgment not to rehire appellants was not based on what 
could be termed "objective criteria " (211-212):

Q. What objective criteria did you use in Miss 
Head's case?

A. The same thing we used in the evaluation of
all teachers. Evaluating a teacher'in her per­
formance in the classroom is something that is 
rather difficult to be objective about, I would 
say impossible to be completely objective, be­
cause so many of the things that are important 
cannot be objectively evaluated, but, of course, 
we do consider many things: the use of the 
English language, the ability to express oneself, 
the proficiency in the teaching area. All of 
these are considered, and when it gets down to 
comparing two teachers, it is very difficult to 
be completely objective. We have to examine all 
that we have and then draw a conclusion.

18



When you have three positions and four people 
and you have to make a decision, then of course, 
this Board of Education would require me to 
pick the three teachers that I thought would 
perform best under the existing conditions, and 
this I did.

Q. What weight do you give the recommendation of 
the principal?

A. Here, again, I cannot objectively evaluate the 
weight. It is not a one, two, three, four situa­
tion necessarily as to the weight that we would 
give each of the criteria that we are using to 
judge performance.

Q. Is the reason that you made no comment on the 
evaluation reports of the white teachers because 
you give the recommendation of the white principals 
greater weight than you do that of the black 
principals?

A. No, no. We do not give greater weight to the
recommendation of a white principal. Race doesn't 
enter this at all, Mr. Moore.

Mr. Blakeney further testified that he felt that 
the accuracy of the evaluations made by Mr. Segars (white) 
and Mr. Baylor (black) were pretty close to the same (214) .

Superintendent Blakeney while claiming to have 
evaluated appellants system-wide, admits in a glaring

19



contradiction, that upon learning of the impending reduction 
in students he called in the principals of the two black 
schools to determine which teachers to release (237):

Q. Now, what evidence do you have that Miss
McCrary was not doing a satisfactory job of 
instructing in the classroom?

A. Well, the evidence I have, I called, as I
stated before, I called Mrs. Trawick and Mr.
Baylor into my office. I explained to them that 
we were going to have fewer pupils during the 
ensuing school year than we had had during the 
current year, that we would not be able to 
offer everyone at that time under contract con­
tracts for the nsuing school year. Therefore, 
it was necessary for us to refuse to offer con­
tracts to some people, and we had already —  we har 
already refused to offer contracts to several 
people, and we still had more people than we 
anticipated we were going to need.

I asked, them, in their opinion, who were the 
least effective teachers in the Fair Street 
School under Mrs. Trawick's supervision at the 
time, and it was the opinion of both Mrs. Trawick 
and Mr. Baylor that Miss Clara Belle was one of 
the least effective teachers in the Fair Street 
School.

20



The record is devoid of any evidence showing the superintendent 
applied any of the objective criteria available to him. He 
admitted that he placed"relatively little" weight on certifi­
cation and experience (258). In a holding applicable to the 
facts of the instant case, a district court in Tennessee has 
recently held as follows (McFerren v. County Board of Education 
of Fayette County, Tennessee, Civil No. 65-136 (W.D. Tenn. 
November 5, 1970), si. op. at 9-10):

The Court further finds that the standards 
employed by the defendants were not [the]
"definite objective standards" contemplated.
The variety of the criteria used was not 
objective but permitted the Superintendent 
and the Board to apply, in secret, standards 
susceptible to the Superintendent's and the Board's whim. See Chambers v. Hendersonville 
City Bd. of Ed., 364 F.2d 189 (C.A. 4 1966).
It should be noted that length of service was 
not a criterion in the instant case unless all 
other things were equal, with the wide and 
vague criteria in most cases not previously 
announced and the method of comparison, there 
was little likelihood that there would ever 
be a situation where all things were equal 
and the teachers who had been adequate 
teachers for automatic renewal of their 
contracts for 20 to 35 years were not given 
sufficient consideration for their experience.

This Court, therefore, concludes that in 
this system objective standards should have 
been state certification, college work and 
appropriate credit for length of experience, 
with the requirement that teachers should be 
transferred if their qualifications indicate 
that they are entitled to be retained in

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preference to others less qualified. When 
there is a Rolfe* situation, namely, a 
loss of teachers due to desegregation, 
matters pertaining to incidents of lack of 
discipline, altercations with pupils and 
parents, non-payment of debts, alleged 
filing of false claims, instances of improper record keeping and other similar 
matters should not be considered in the 
objective comparison. Such matters should 
be treated as dismissals for cause, the 
reasons should be given to the teacher, and 
the teacher should be notified that he, or 
she, is entitled to a hearing on the 
accusations against her.

The Court, therefore, concludes with 
regard to all twelve plaintiffs that 
definite objective standards were not 
employed and the plaintiffs are entitled to 
be reinstated as of the commencement of the 
school year and are entitled to damages in the amount that they would have earned if 
they had been permitted to teach, less what they might have earned in some other suit­
able employment by reasonable diligence.
Rolfe v. County Board of Education, supra, 
at page 81.

In addition to the above Rolfe reason­
ing there are other constitutional 
deprivations with regard to the plaintiffs 
who had long periods of employment with the 
Board. A non-tenure teacher who has long 
periods of service with a system acquires a 
protectible interest in his continued 
employment and his non-re-election must need 
minimal standards of procedural due process.
Lucas, et al. v. Chapman, et al, ___ F.2d
_____ (C.A. 5, decided 8-6-70) ; Gouge v .
Joint School Dist. No. 1, 310 F. Supp. 984 
(W.D. Wis. 1970) .

The McFerren holding is particularly persuasive here because
the city school district failed to apply the most elementary

* Rolfe v. County Board of Education of Lincoln County, 
Tennessee, 391 F.2d 77 (6th Cir. 1968).

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standards of objective comparison. The reason for this 
failure is apparent. The application of objective 
criteria would have required the re-employment of 
Miss Head to the white high school to teach white children. 
Moreover the superintendent accepted the recommendation 
of the white principal virtually at face value but 
subjected the black teachers, recommended by black 
principals to,stringent and discriminatory evaluations.

Furthermore the decision not to rehire 
Miss McCrary was based entirely upon the opinion of white 
staff personnel who had infrequent communication with her 
and whose ordinary function was not the reevaluation of 
teacher effectiveness. The superintendent's willingness 
to accept ad hoc judgments of Miss McCrary by white staff 
members— rather than accept the views of the black 
principal whose opportunity to observe her was continuous—  
was racial discrimination simplicter.

The application of differing standards in 
evaluating black and white personnel merely makes conclusive 
the inference of racial discrimination drawn from the 
decimation of black faculty during the last few years. While 
noting that the question of faculty desegregation was not 
before the Court, the Eighth Circuit recently concluded as 
follows: (Jackson v. Wheatley School District, No. 19952,

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2 FEP Cases 887, 890 (8th Cir. August 11, 1970)):
*** The undisputed evidence that Negro 
representation on the faculty was 
decreased in the school system in the 
1968-69 school year and the evidence 
that the ratio of Negroes on the 
faculty to whites does not remotely 
approach the proportion of Negro 
students to white students is substan­
tial evidence supporting racial 
discrimination.

CONCLUSION
For the foregoing reasons the district court

should be reversed.
Respectfully submitted,

JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
CONRAD K. HARPER10 Columbus Circle 

Suite 2030
New York, N.Y. 10019

HOWARD MOORE, JR.
PETER E. RINDSKOPFCitizens Trust Company 

Bank Building 
75 piedmont Avenue, N.E. 
Suite 1154
Atlanta, Georgia 30303

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CERTIFICATE OF SERVICE

This is to certify that on the 17th day of
November, 1970 the undersigned, one of counsel for 
plaintiffs—appellants, served a copy of the foregoing 
Brief for Appellants upon defendants-appellees 
represented by Mr. Gunter, by mailing same via United States 
mail postage prepaid, addressed as indicated below:

William B. Gunter, Esq. 
Kenyon, Gunter, Hulsey & Sims P. 0. Box 415P. 0. Box 415
Gainesville, Georgia 30501

A
Appellants

25