Shaw v Fayette County Board of Education Reply Brief for Appellant

    NO. 71-L205

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LEROY SHAW, JR.,

Plaintiff-Appellant,

vs .

COUNTY BOARD OF EDUCATION 
OF FAYETTE COUNTY, TENNESSEE, et al.,

Defendant s-Appe1lees.

REPLY BRIEF FOR APPELLANT

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

1(7 Columbus Circle 
New York, New York 10019

AVON N. WILLIAMS, JR.Suite 1414
404 James Robertson Pkwy. 
Nashville, Tennessee 37219

Attorneys for Plaintiff- Appellant



NO. 71-1205

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LEROY SHAW, JR.,
Plaintiff-Appellant,

vs .
COUNTY BOARD OF EDUCATION OF FAYETTE 

COUNTY, TENNESSEE, et al.,
De fendants-Appel lees.

REPLY BRIEF FOR APPELLANT

I

Since the Brief for Appellants was prepared, this 
Court has decided Orr v. Trinter, No. 20721 (June 16, 1971), 
in which it was held that no due process rights of a first- 
year probationary Ohio teacher were denied when he was not 
rehired and given neither an explanation of the school board's 
reasons for failing to renew his contract or an opportunity 
to confront the school board thereon at a hearing.

We concede that plaintiff Shaw lacked tenure under 
Tennessee law because he had not served the requisite length 
of time with the Fayette County school system; and therefore 
that under the principles announced in Orr, Shaw's rights were 
likewise not invaded because he got no explanation or hearing.



We urge reconsideration of the rule laid down in 
Orr v. Trinter but we can add little to the Briefs herein or 
the Court's discussion of the recent cases.

II

Orr recognizes (slip opinion, p. 9) that while a 
constitutional claim may not be stated simply by allegations 
that a teacher's contract was not renewed and he was not 
given a statement of the reasons for that action, teachers are 
protected from discharge or non-renewal resulting from racial 
discrimination.

Shaw's complaint (323a)* alleged that he was termin­
ated pursuant to a policy of reducing the number of black 
single male teachers. The Board contended that Shaw was 
discharged because he was teaching out of his field and paddled 
children excessively. Most of the evidence at the hearing 
related to these matters.

Defendants assert in their Brief (p. 25) that "the 
record before this Court wholly supports the finding of the 
lower Court that the facts do not establish racial discrim­
ination against this Plaintiff, nor do the facts in the least
indicate that the board's action was due to desegregation."
We disagree.

* Citations in the form "( 
Citations in the form "(A. a)" are to the Appendix herein, 

a) " are to the Appendix in thecompanion appeal, McFerren v. County Board of Education of Fayette County. No. 71-1206. — ------- -----

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Plaintiff’s proof showed that upon Shaw's termina­
tion, the last single male black teacher at the elementary 
school level in Fayette County was eliminated (A. 269a, 272a- 
273a). During the three years he worked in the system, the 
student body and staff at Braden-Sinai school, where he was 
assigned, was entirely black (177a). The next school year 
after he lost his job, further terminations (the subject of 
the companion appeal) eliminated unmarried black male teachers 
from the school system entirely except for one high school 
auto mechanics teacher, who would not ordinarily have any girls 
in his class (A. 274a-275a). Although the school system did 
subsequently hire another single black male, he was assigned 
to a boys' physical education class (A. 275a-276a).

Between the 1968-69 and 1969-70 school years, when 
Shaw was terminated, the school system hired eight white single 
male teachers and assigned five to elementary schools (A. 280a- 
281a). The present Superintendent (who was Supervisor of 
instruction at the time), did not deny the pattern but said
simply it had never occurred to him at the time; he denied it 
was done deliberately (A. 285a).

The fall after Shaw was terminated, the defendants
proposed a desegregation plan which would have separated high
school students by sex. The district court heard evidence
suggesting the racial motivation of the plan and rejected it.
See McFerren v. County^_^f _Educ,, civ. No. 65-136 (W.D.
Tenn., January 9, 1970); transcript of December 24, 1969 hearing 
passim.

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This showing was sufficient to raise an inference 
of discrimination, Alabama v. United States, 304 F.2d 583, 
586 (5th Cir.), aff1d 371 U.S. 37 (1962); Turner v. Fouche,
396 U.S. 346, 360 (1970); United States v. Board of Educ. of 
Bessemer, 396 F.2d 44, 46 (5th Cir. 1968), which it was the 
defendants' obligation to rebut "by clear and convincing evi­
dence," Chambers v. Hendersonville City Bd. of Educ.. 364 F.2d 
189, 192 (4th Cir. 1966); Rclfe v. County Bd. of Educ. of 
Lincoln County. 391 F.2d 77, 80 (6th Cir. 1968).

Their proof, however, was contradictory. The former 
Superintendent testified that Shaw's contract was not renewed 
because his principal, Ransom Person, had come to his office 
to complain that Shaw was uncooperative and paddled children 
too much (A. 395a-396a). When Person was called by the school 
board, however, he was certain that he had made no complaints 
about Shaw until the Superintendent called him into his office 
after Shaw had been notified that his contract would not be 
renewed (27a, 53a-55a, 57a-58a, 67a). The present Superintendent 
recalled no complaints by Person prior to Shaw's discharge (293a).

Person testified that during the 1968-69 year, he 
had no substantial complaints about Shaw (26a, 55a). No
parents had complained to him (68a) or to the Superintendent 
(A. 411a) about Shaw's supposed excessive paddling. In fact, 
paddling children to maintain discipline or to enforce homework 
assignments has historically been the common practice in 
Fayette County (69a, 104a, 207a; A. 411a) and no teacher had

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ever been discharged for using the paddle (74a; A. 427a).
There were no rules governing the use of the paddle (126a;
A. 411a).

The other reason given for Shaw's termination was 
that he was teaching on a temporary elementary certificate 
rather than a permanent one, having majored in vocational 
agriculture. However, the Superintendent who fired Shaw 
admitted that this in itself was an insufficient justification 
for the failure to renew his contract (A. 431a) —  particularly 
since Shaw was short only six hours towards his permanent 
elementary certificate (130a). Furthermore, defendants did 
not contradict Myles Wilson's testimony that other teachers 
were permitted to teach outside their major fields (205a-207a). 
Thus, to the extent that this played a role in Shaw's termin­
ation, this standard was "not applied to plaintifff] in an 
even handed and rational fashion as required by the Due Process 
and Equal Protection clauses of the Fourteenth Amendment. E.g., 
Yick_Wo v. Hopkins, 118 U.S. 356, 374 (1886)." Baker v.
Columbus Municipal Separate School pist.. Civ. No. EC-70-52-S 
(N.D. Miss., June 23, 1971) (typewritten slip opinion at p. 38).

As far as the paddling is concerned, the conclusion 
seems inescapable that the Board failed to prove its case.
It tried to impeach its own witnesses and succeeded only in 
creating substantial doubt whether this charge was before the 
Board at the time of Shaw's termination. Cf^ Johnson v. Branch. 
364 F.2d 177, 181 (4th Cir. 1966). The district court recog­
nized that Shaw was a competent teacher (195a; see 106a, 193a)

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and that he did not paddle excessively (469a-470a). The 
court also recited the statistics concerning the race, sex 
and marital status of teachers (470a-471a) but concluded 
that the burden of proof remained on Shaw (471a) and that he 
had failed to carry the burden (473a).

Because the district court improperly viewed this 
case as one in which plaintiff had the ultimate burden, even 
after having introduced evidence sufficient to raise an 
inference of discrimination, and because defendants failed to 
meet their obligation under the law to rebut that inference by 
clear and convincing evidence, the judgment below should be
reversed with directions to order the reinstatement of plaintiff 
Leroy Shaw, Jr.,

Respectfully submitted,

ACK GREENB0RC 
JAMES M. NAIBRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

AVON N. WILLIAMS, JR.Suite 1414
404 James Robertson Parkway 
Nashville, Tennessee 37219

Attorneys for Plaintiff- Appellant

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CERTIFICATE OF SERVICE

This is to certify that on this 20th day of July, 
1971, I served two copies of the foregoing Reply Brief for 
Appellant upon counsel for defendants-appellees herein, 
Jerome Turner, Esq. and G. Wynn Smith, Esq., by mailing 
same to them via United States mail, first class postage 
prepaid, addressed to them at Canada, Russell and Turner,
12th floor, Union Planters Bank Building, Memphis, Tennessee 
38101.

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