Pitts and Lee Case, 1971, 1975, undated - 1 of 9

    UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

IN THE V

No. 75-1998

WITT CAMPBELL,
Plaintiff-Appellee 

Cross Appellant
versus

GADSDEN COUNTY DISTRICT SCHOOL BOARD, ET AL., 
ETC. ,

Defendants-Appellants 
Cross Appellees

On Appeal From The United States District Court 
For The Northern District of Florida

BRIEF FOR PLAINTIFF-APPELLEE 
CROSS APPELLANT

KENT SPRIGGS
324 W. College Avenue 
Tallahassee, Fla. 32301

JACK GREENBERG 
JAMES C. GRAY, JR.

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiff-Appellee 
Cross Appellant



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-1998

WITT CAMPBELL,
Plaintiff-Appellee 

Cross Appellant
versus

GADSDEN COUNTY DISTRICT SCHOOL BOARD, ET AL., 
ETC. ,

Defendants-Appellants 
Cross Appellees

On Appeal From The United States District Court 
For The Northern District of Florida

CERTIFICATE REQUIRED BY LOCAL RULE 13(a)

The undersigned,counsel of record for plaintiff- 
appellee, cross appellant certifies that the following listed 
parties have an interest in the outcome of this case. These 
representations are made in order that Judges of this Court 
may evaluate possible disqualification or recusal pursuant
to Local Rule 13(a) : .. - - ... - .....

1. The original plaintiff who commenced this action in 
1973 was Witt Campbell.



2. Plaintiff Campbell commenced this action as a class 
action pursuant to Rule 23 F.R.C.P. but the district court 
ruled that the action could not be maintained as a class 
action.

4. The defendants are the Gadsden County Board of 
Education (Florida), M.D. Walker, Superintendent, and 
Edward Fletcher, Cecil Butler, C.W. Harbin, Jr., Will I. 
Ramsey, Sr., and Randolph Greene, members of the Gadsden 
County Board of Education.

Attorney for Plaintiff-Appellee 
Cross Appellant

-2-



INDEX

Issues Presented For Review
by the Cross Appeal .........................

Procedural Statement of the Case ..............
Plaintiff's Statement of the Facts ............
ARGUMENT

I. The District Court Properly 
Exercised Its Jurisdiction
Over the Defendants .................

II. The District Court Properly 
Held That Plaintiff was Demoted 
and that His Demotion and Non­
reappointment Were In Violation
of the Singleton Requirements .......

III. The District Court Properly
Awarded Plaintiff a Reasonable Attorney's Fee ...................

IV. The District Court Properly
Ordered Plaintiff's Re­
appointment to a Principalship ......

Cross Appeal
V. The District Court Erred in 

Not Finding a Pattern and
Practice of Racial Discrimination ....

VI. The District Court Erred in 
Not Awarding Plaintiff Back 
Pay and Other Equitable
Monetary Relief .....................

CONCLUSION ....................................

Page

1
2
3

13

17

22

23

24

26
28

-i-



TABLE OF AUTHORITIES

Cases: Page
Aurora Education Ass'n East v. Board of 

Education of Aurora Public School 
District No. 131 of Kane County, 111.,
490 F . 2d 431 (7th Cir. 1974) .....................  13

Bradley v. Richmond School Board, 416
U.S. 696 (1974) ..................................  23

Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966) ..........  25
Campbell v. Masur, 486 F.2d 554 (5th Cir. 1973) .....  13
Chambers v. Hendersonville City Board

of Educ., 364 F . 2d 189 (4th Cir. 1966) .......... . 25
City of Kenosha v. Bruno, 412 U 0S. 507 (1973) ....  13, 14, 15
District of Columbia v. Carter, 409 U.S. 418 ........  15
Haney v. County Board of Educ. of Sevier

County, 429 F.2d 364 (8th Cir. 1970) .... ......... 25
Harkless v. Sweeny Independent School

District, 427 F.2d 319 (5th Cir. 1970),
cert. den. 400 U.S. 991 (1971) ...................  26

Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973) ....  14
Hines v. D'Artois, 383 F.Supp. 184, 190

(W.D. La. 1974) ........................... . 15
Jackson v. Wheatley Sch. Dist. No. 28,

430 F . 2d 1359 (8th Cir. 1970) ....................  25
Keyes v. School Dist. No. 1 Denver, Colo.,

413 U.S. 109 (1973) ............................ . 25
Lee v. Macon County Board of Educ., 453 F.2d

1104 (5th Cir. 1971) .................... ......... 20
Lee v. Macon County Board of Educ. (Florence)

456 F . 2d 1371 (5th Cir. 1972) ....................  20
McCurdy v. School Board of Palm Beach 

County, Florida, 367 F.Supp. 747 
(S.D. Fla. 1973) 388 F.Supp. 599 
(1974), aff'd per curiam 509 F.2d
540 (5th Cir. 1975) ........................ ...... 23

-ii-



Page
Maybank v. Ingraham, 378 F.Supp. 913

(E.D. Pa. 1974)   16
Monroe v. Pape, 365 U.S. 167 (1961) ..............  14

Moore v. Board of Educ. of Chidester Sch.
Dist., 448 F . 2d 709 (8th Cir. 1971) ...........  25

Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968)   22

North Carolina Teachers Assn v. Ashboro 
City Board of Educ., 393 F.2d 736
(4th Cir. 1968)   25

Northcross v. Board of Educ., 412 U.S. 427(1973)   22
Pettway v. American Cast Iron Pipe Co.,

494 F .2d 211 (5th Cir. 1974) ..................  26
Rolfe v. County Board of Educ. of Lincoln

County, 391 F.2d 77 (6th Cir. 1968) ...........  25
Singleton v. Jackson Separate Mun. Sch.

Dist., 419 F .2d 1211 (5th Cir. 1969),
cert. den. 396 U.S. 1032 (1970) ...........  17, 18, 19, 20, 23

Smith v. Board of Educ. of Morrilton Sch.
Dist. No. 32, 365 F.2d 770
(8th Cir. 1966) ...............................  20

Sterzing v. Fort Bend Ind. School District,
496 F .2d 92 (5th Cir. 1974) ............... '....- • 14

United Farmworkers of Florida Housing 
Project Inc. v. City of Delray Beach,
Fla., 493 F . 2d 799 (5th Cir. 1974) ............  14

U.S. v. Jefferson County Board of Educ.,
372 F . 2d 836 (5th Cir. 1966) ..................  25

U.S. v. Wakulla County*...........................  20
Wall v. Stanly County Board of Educ.,

378 F .2d 275 (4th Cir. 1967) ..................  26
Williams v. Albemarle County Bd. of Educ.,

485 F . 2d 232 (4th Cir. 1973) ..................  18

-iii-



Page
Statutes:
20 U.S.C. § 1617 ........
28 U.S.C. § 1331 ........
28 U.S.C. § 1343 ........
42 U.SoC. § 1981 ........
42 U.S.C. § 1983 ........
42 UoS.Co § 1985 ........

F.R. Ap. P. 52(a) .......

Constitutional Provisions:
Thirteenth Amendment ....
Fourteenth Amendment ....

22
16
13

13, 15, 16
14, 15, 16

13, 16

18, 25

13, 16 
13, 16

-iv



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-1998

WITT CAMPBELL
Plaintiff-Appellee 

Cross Appellant
versus

GADSDEN COUNTY DISTRICT SCHOOL BOARD, ET AL., 
ETC.,

Defendants-Appellants 
Cross Appellees

On Appeal From The United States District Court 
For The Northern District of Florida

BRIEF FOR PLAINTIFF-APPELLEE 
____  CROSS APPELLANT

Issues Presented For Review 
By the Cross Appeal________

1. Did the District Court err in not making a finding
that a pattern and practice of racial discrimination had been 
shown and in finding that plaintiff's demotion was not part 
of any pattern and practice? • ..  - ... .

2. Did the District Court err in not awarding plaintiff 
back pay and other equitable monetary relief?

-1-



Procedural Statement of the Case
Appellee-Cross-Appellant Campbell (hereinafter 

referred to as "plaintiff Campbell") adopts the Statement 
of the Case set forth on pages 1 to 3 of the Brief of 
Defendants-Appellants Cross-Appellees (hereinafter re­
ferred to as "defendants").

-2-



PLAINTIFF'S STATEMENT OF THE FACTS

a. Plaintiff's Demotion
Plaintiff Campbell is a black administrator 

who has been employed by the Gadsden County Board of 
Public Instruction since 1934. He has been certified 
as an elementary and secondary school principal since 
1952. [Finding of Fact (F.F.) 1] In the 1969-70
school year, plaintiff had thirty years of experience 
as an administrator in the Gadsden County school system 
and was the senior administrator in the system. [Plain­
tiff's Exhibit (P.X.) 5]

The Gadsden County School District historically 
operated a dual school system with racially segregated 
faculties and student bodies up until the commencement 
of the 1970-71 school year. Pursuant to an order by 
the United States District Court for the Northern District 
of Florida in the case of United States v. Gadsden County 
School District, TCA-1616, enjoining further maintenance 
of the dual school system, the defendant district desegre­
gated its system in August 1970. Under the dual system, 
the school district operated five white secondary schools 
(four with senior high school grades) but only two black 
secondary schools despite the fact that black students 
comprised more than 50% of the student body throughout 
the system. Of the schools - both secondary and elementary 
none of the white schools had black principals or assistant



principals, but two of the black schools (Springfield 
and Stewart Street) had white principals. (P.X. 5)

Prior to the desegregation of the Gadsden 
County system, plaintiff Campbell was the principal 
of Stevens Elementary School. As principal of Stevens, 
plaintiff had responsibility for selecting and hiring 
faculty, making teacher assignments, presiding over 
faculty meetings and ceremonial occasions and for the 
general operation of the school. (F.F. 9)

As a result of the desegregation of the system, 
the Stevens Elementary School was phased out and the

1/number of principalships in the system reduced. (F.F. 4)
In August 1970, plaintiff was reassigned from 

his position as a principal to an assistant principal's 
position. Plaintiff objected to his reassignment.
(F.F. 5) Plaintiff was assigned as assistant principal 
to Chattahoochee High School. As assistant principal 
of Chattahoochee High School, plaintiff had no responsi­
bility for selecting and hiring faculty, making teacher 
assignments and presiding over faculty meetings and cere­
monial occasions (F.F. 9) In September of 1973, there 
were fewer students enrolled at Chattahoochee High School 
than there had been at Stevens Elementary School when plain­
tiff was principal. (F.F. 10)

1/  As part of its dismantling of the dual school system, 
the Gadsden County school board also changed the names of 
five formerly all black schools; no white schools were 
similarly changed.

-4-



The position of principal is generally more 
prestigious than the position of assistant principal 
regardless of whether the comparison is made on or between 
the elementary, junior high or high school levels. (F.F. 11) 
The salary range for principals is higher than the salary 
range for assistant principals. (F.F. 12)

Although plaintiff did not suffer a loss in 
salary in the 1970-71 school year when his 1970-71 
assistant principal's salary is compared with his 1969-70 
principal's salary, a comparison of his subsequent salaries 
with those of another principal with similar seniority 
shows that he did suffer a loss in income over the succeed­
ing years. Principal William Grice who retained his ele­
mentary school principalship and had in 1969-70 twenty-nine
(29) years of seniority compared with plaintiff's thirty
(30) years earned the following amounts more than plaintiff: 
in 1971-72 - $200, in 1972-73 - $500, and in 1973-74 - $500.
In 1970-71, however, plaintiff earned $300 more than Principal 
Grice. (PX.5)

In August 1970, the Gadsden County school system 
had not developed non-racial objective criteria, to be used 
in selecting staff members for dismissal or demotion, and the 
system and defendants have never developed such criteria.
The school system did not utilize objective and reasonable 
non-discriminatory standards to compare the members of the 
pre-desegregation order principal population.in order to 
select from among all the principals which ones were to be 
displaced in effecting the necessary reduction in the numbers 
of principals. (F.F. 7)

-5-



At the time that plaintiff was displaced from 
his principalship, he was the senior administrator in 
the system. Plaintiff has been assigned less respon­
sibility as assistant principal of Chattahoochee High 
School than he had as principal of Stevens Elementary 
School. (F.F. 8) In the crucial year of integration 
when plaintiff was demoted, six new principals were 
brought into the system.

In addition, in the 1970-71 school year, Charles 
Boyd assumed the Munroe Elementary principalship for the 
first time, and Corbin Scott assumed the Southside Ele­
mentary principalship for the first time. Both new 
principals were white. (P.X. 5)

In the fall of 1971 Leslie Jones, a white, 
assumed the principalship of Gretna Elementary School 
for the first time and his former position was assumed 
by the former principal of Gretna. The combined seniority 
of these two principals was twelve (12) years compared 
to plaintiff's thirty-two (32) years. 'V"

Since 1970, there have been at least three 
principal vacancies at the junior high school level for 
which plaintiff was qualified.

Plaintiff has never been offered reassignment 
as principal of any school —  elementary, junior high or 
high —  since his displacement in August 1970. He remains 
duly certified to be a principal on either the elementary 
or secondary level.

-6



b . Statistical and Other Evidence of Racial 
Discrimination

Plaintiff introduced other evidence to show 
that his dismissal was part of a pattern and practice 
of racial discrimination. This evidence shows not only 
that other black administrators were demoted without 
objective criteria but also that whites have enjoyed 
prior to desegregation and also afterwards preferential 
employment treatment in the Gadsden County public school 
system.

In the fall of 1970, defendants consolidated 
the black and white high schools in the Havana area, 
turning the previously black Northside High School 
building into a middle school. The former principal of 
Northside, John Williams, a black, was reassigned as 
principal of the middle school while a white was made 
principal of the High School. The white, Leslie Jones, 
had been prior to desegregation the assistant principal 
of an elementary school. No non-racial objective cri­
teria were used in demoting an experienced black high 
school principal to a middle school position and promoting 
an elementary school assistant principal for the high 
school principalship. (P.X. 5)

Mr. Freddie Andrews was moved from his elementary 
school principalship in 1969 to the assistant principalship 
of a senior high school. (P.X. 4 and 5) In 1970 he was 
reassigned from his line administrative position to the 
county staff against his will.

-7-



Two other black principals were assigned to 
assistant principalships in the wake of desegregation. 
In the fall of 1970, Verdell Hamilton was demoted from 
a high school principalship to a high school assistant- 
ship. In the fall of 1971, Pugh Young was demoted from 
an elementary school principalship to a junior high 
school assistantship.

-8-



Despite the fact that the student body is and 
has been predominantly black (presently approximately 78% 
black), the school system has lowered black faculty employ­
ment from 61% to 48% and maintained it at that level (ap­
proximately 50%). (P.X's 8 and 13)

From 1968 until the present, sixteen persons 
have been newly hired as principals or assistant principals 
in the system. Of these sixteen, fifteen were white. Of 
the fifteen whites, ten were brought in from outside of 
the system and were entirely new to Gadsden County. (P.X. 1) 
Nine of these fifteen white administrators were not properly 
certified in supervision and administration when they were 
selected and none of them had any previous experience in 
administration. (P.X's 2 and 3) During this period, there 
have been highly qualified blacks already in the system who 
had a number of years of experience within the system and 
proper certification. They however, were passed over.
Among these black candidates were Robert Love, Robert Green, 
Harold Palmer, and Ms. Luree Houston. None was selected 
for a principalship or assistant principalship. Messrs.
Love, Green and Palmer all have long records of service 
with the defendant system and were at all relevant times 
properly certified in supervision and administration. Ms. 
Houston had like plaintiff Campbell served with distinction 
as an elementary principal in the Gadsden system prior to 
desegregation. She was displaced to a non-principal position 
and has never been offered a principalship. She had twelve 
(12) years experience in administration in Gadsden County

-9-



and one and a half years experience as a principal.
(P.X's 2 and 3)

Since 1968, fourteen (14) assistant principal- 
ships have been filled. Of the fourteen persons filling 
these positions eleven (11) have been white and only 
three (3) black. All eleven whites were brought in from 
outside the system, while all three blacks were former 
principals who were demoted. (P.X. 2)

Because there were more white secondary schools 
under the dual school system than black (five to two) 
even though blacks comprised more than half the student 
body, there were to begin with more white secondary school 
principals. By the 1974-75 school year, however, the 
number of secondary school principalships had increased 
from seven to nine but the number of black secondary 
principals remained frozen at two. (P.X. 5)

The teacher employment statistics show that 
white teachers have also received better treatment in 
hiring and retention than blacks. In 1964-65, prior to 
the desegregation efforts, black teachers made up 61% 
of the teachers in the system. By 1970-71, the first 
year of integration, that percentage had dropped to 48% 
and has remained at approximately 49% since. (P.X. 8)
A significant factor in this drop in percentage was the 
failure of the school district to rehire black teachers 
in 1969-70 and 1970-71. Teachers 'who are not recommended 
by their principals or who are not endorsed by the superin­
tendent if recommended by their principal are not entitled

-10-



to be rehired. For 1959-70, thirty-six (36) teachers did
not receive recommendation or endorsement. Of those
thirty-six, twenty-nine (29) or 80% were black; seven (7)
were white. The following year, sixteen (16) were not
recommended for rehire or for continuing contract after
the third year. Of these sixteen, thirteen (13) or 80%
were black; three (3) were white. (P.X. 6)

The hiring statistics show that the school
system has maintained the faculty balance at approximately

2/
50% despite the high turnover in white teachers through 
hiring two to three times as many whites. Plaintiff's 
Exhibit 7 shows the following:

New Teachers• Year % BlackWhite % Black

1972-73 55 15 21.5
1973-74 40 20 33.3
1974- 57 16 21.9
Finally, at the county staff level, whites have 

received better employment opportunities than blacks. Prior 
to desegregation in 1968-69, only two of the seventeen (17) 
county staff professionals were black, representing 11.8%.
In 1970-71, the percentage had increased to 13.6% by adding 
one more black to the county staff. The number of whites

2/  For instance, of those who. entered the system in 1972, 
there were 55 white teachers and 15 black. At the end of the 
first year, 64% of the white teachers (20) remained in the 
system, compared to 80% (12) of the blacks. By the end of 
two years 44% of the whites (24) remained while 73% of the 
blacks (11) remained).'

-11-



had increased in the meantime by four. The one black 
added, Mr. Freddie Andrews, was like plaintiff a former 
principal who had been demoted to assistant principal 
before being placed on staff. (P.X. 5 and 10) Of the 
fifteen (15) persons who have assumed county staff 
positions since 1970, only five (5) have been black. 
(P„X. 10)

-12-



A r g u m e n t

i

The District Court Properly 
Exercised Its Jurisdiction 
Over The Defendants________

This action was brought against the Gadsden 
County District School Board, the Superintendent of 
Schools and the'five individual Board members alleging 
a deprivation of rights secured by 42 U.S.C. §§ 1981,
1983 and 1985 and the Thirteenth and Fourteenth Amend­
ments .
1983 Jurisdiction

The United States Supreme Court's decision 
in Bruno v. City of Kenosha, 412 U.S. 507 (1973) held 
that a municipality is not a "person" for the purposes 
of § 1983 jurisdiction. Admittedly, therefore, juris­
diction does not exist as to the school board under
§ 1983 to the extent that it is within the nature of1/a municipality.

Jurisdiction under 42 U.S.C. § 1983 does, 
however, clearly exist as to the defendant Superintendent 
and board members who are clearly "persons" within the 
meaning of the statute. Were they not "persons'" § 1983 
would be stripped of any effective meaning inasmuch as 
it is directed to individuals acting "under color of law."

3./ See Campbell v. Masur, 486 F.2d 554 (5th Cir. 1973) ; but see Aurora Education Ass'n East v. Board of Education 
of Aurora Public School District No. 131 of Kane County, 111., 
490 F .2d 431 (7th Cir. -1974).

-13-



In Moor v. County of Alameda, 411 U.S. 693 (1973),
decided the same term as Kenosha, the Supreme Court 
noted that ''substantial federal causes of action" were 
stated against the individual county employees, despite 
the fact that the county itself was not amenable to suit 
under § 1933.

This Court has stated that while a city and 
other governmental agencies may not be proper parties 
under § 1983 "the individually named city council members 
and the other named individual defendants are clearly 
proper parties under . . .  § 1983 . . .." United Farm­
workers of Florida Housing Project, Inc, v. City of 
Delray Beach, Fla., 493 F.2d 799 (5th Cir. 1974). See 
also, Sterzing v. Fort Bend Ind. School District, 496 
F . 2d 92 (5 th Cir. 1974). The Fourth Circuit in Harper 
v. Kloster, 486 F.2d 1134 (1973), reached a similar 
result.

In Monroe v. Pape, 365 U.S- 167 (1961), the 
Supreme Court specifically held that city officials are 
proper defendants under § 1983 even though the city 
itself was not a "person" for the purposes of a damage 
action. 365 U.S. 192. The Kenosha decision, which 
clarified that the Monroe ruling extended to equitable 
actions as well as actions at law, did not however ex­
pand the scope of exclusion from suit to city officials.

-14-



§ 1981 Jurisdiction Lies Against the Board 
and Individual Defendants_________________

Unlike § 1983, 42 U.S.C. § 1981 provides 
jurisdiction against the school board as a corporate 
entity in the nature of a municipality as well as 
against the school board members and the superintendent. 
§ 1981 was was originally enacted as § 1 of the Civil 
Rights Act of 1866 in furtherance of the Thirteenth 
Amendment and was subsequently reenacted in light of 
the additional authorization of the Fourteenth Amend­
ment.

The Supreme Court, during the same term that 
it decided Kenosha, pointed out the distinction that 
lies between an action brought pursuant to the 1866 
Civil Rights Act and one brought pursuant to § 1983. 
District of Columbia v. Carter, 409 U.S. 418 (1973).
The 1866 Act is focused on enabling non-white citizens 
to enjoy the same rights enjoyed by white citizens.
Its provisions, now codified as §§ 1981 and 1982, are 
"not 'a mere prohibition of state laws establishing or 
upholding' racial discrimination . . . but, rather, an
'absolute' bar to all such discrimination, private as 
well as public, federal as well as state.” 409 U.S.
422.

Courts have recognized that employment dis­
crimination actions under § 1981 may be successfully 
maintained against "municipal" defendants as well as
individual official defendants. See Hines v. D'Artois,

15-



383 F.Supp. 184, 190 (W.D. La. 1974); Maybank v. Ingraham, 
378 F.Supp. 913 (E.D. Pa. 1974).
S 1331 Jurisdiction

Jurisdiction was also asserted against the 
school board under 28 U.S.C. § 1331 asserting that the 
nature of relief sought by plaintiff met the requisite 
jurisdictional amount.

The instant matter raises questions arising 
under the Constitution and laws of the United States: 
the Thirteenth and Fourteenth Amendments and 42 U.S.C.
§§ 1981, 1983 and 1985.

-16-



II

The District Court Properly 
Held That Plaintiff Was 
Demoted and That His Demotion 
and Non-reappointment Were 
In Violation Of The Singleton 
Requirements__________________

This Court announced the Singleton standards 
in December 1969. 419 F.2d 1211 (5th Cir. 1970). Ac­
cording to those standards, all future displacements 
of teachers and administrators were to be conducted 
in a manner designed to provide black educators with 
certain procedural protections from discriminatory 
treatment by school districts that had historically 
maintained racially segregated school systems. Plain­
tiff was displaced nine months later in a manner devoid 
of any of those procedural safeguards.
Plaintiff Was "Demoted"

In Singleton, this Court specifically defined 
what would constitute a "demotion" as follows:

"Demotion" as used above includes any 
re-assignment (1) under which the staff 
member receives less pay or has less re­
sponsibility than under the assignment he 
held previously, (2) which requires a 
lesser degree of skill than did the assign­
ment he held previously, or (3) under which the staff member is asked to teach 
a subject or grade other than one f<pr 
which he is certified or for which he has 
had substantial experience within a rea­
sonably current period. 419 F.2d 1218 (emphasis added)
Plaintiff's assignment from principal to assistant

principal - "desegregation specialist" was a demotion within

-17-



the meaning of Singleton. The district court found as 
fact that plaintiff's new position involved lesser 
responsibility. (F.F. 8) The court found that the 
salaries of principals were generally higher than 
those of assistant principals. (F.F. 12) Although, 
as the court noted, plaintiff suffered no immediate 
loss of salary the first year, he did incur a loss 
in the succeeding year when compared to principal 
William Grice.

The court's finding of fact that the new 
position entailed less responsibility is not "clearly 
erroneous" within the meaning of Rule 52(a) F.R.A.P. 
and defendants have not argued that the court's find­
ing was wrong.

The court's conclusion of law that plain­
tiff's reassignment was therefore a demotion is clearly 
correct. See also Williams v. Albemarle County Bd. of 
Educ.. 485 F .2d 232 (4th Cir. 1973).
Defendants Failed To Comply 
With The Singleton Require- 
ments in Demoting Plaintiff

Although subject to the provisions announced
JJ  • .in Singleton, defendants did not prepare objective 4

4 / 3. If there is to be a reduction in the
number of principals, teachers, teacher- 
aides, or other professional staff employ­
ed by the school district which will result 
in a dismissal or demotion of any such 
staff members, the staff member to be 
dismissed or demoted must be selected on 
the basis of objective and reasonable 
non-discriminatory standards from among all the staff of the school district"

18



criteria for determining which principals were to be 
demoted in order to achieve the necessary reduction 
in the number of principals in the system. The 
district court found that the school board had never 
developed written, objective, non-racial criteria to 
be used in connection with demotion and dismissal. 
(F.F. 7) There is no evidence in the record which 
indicated that plaintiff was compared with any other 
principal to determine who was to be demoted.

The defendants 1 failure to undertake a com­
parison of principals based on objective criteria is 
a per se violation of Singleton denying plaintiff the

—  JL/procedural protections assured by that decision. The 
only apparent basis for demoting plaintiff appears to 
be the closing of his former chool. It was exactly 
such an approach which the Eighth Circuit deplored in 5

4/ continued
Prior to such a reduction, the school 

board will develop or require the develop­
ment of nonracial objective criteria to 
be used in selecting the staff member who 
is to be dismissed or demoted. These 
criteria shall be available for public 
inspection and shall be- retained by the 
school district. The school district 
also shall record and preserve the 
evaluation of staff members under the 
criteria. Such evaluation shall be made 
available upon request to the dismissed 
or demoted employee. 419 F.2d 1218 (emphasis added)

5 / Defendants cited the correct legal standard on pp. 12-13 
of their Brief but in doing so demonstrate beyond question 
that the District Court was right in finding an absence of 
written standards. In place of the unequivocal command of 
this Court the School Board states that the transfers were

-19-



the seminal teacher rights case of Smith v. Bd. of Educ.
of Morrilton School Dist. No. 32, 365 F.2d 770 (8th Cir. 
1966). In that case, the defendants closed the Negro 
school and discharged all the black teachers on the 
theory that since their school was no longer operating 
they were out of jobs. The Eighth Circuit rejected this 
approach noting the inequitable burden placed on the 
black teachers in the absence of a comparison of qualifica­
tions on an objective basis.
Defendants Failed To Comply With 
Singleton When They Filled Sub­
sequent Principalships Within 
The System With White Principals

The law is now clear within this Circuit that, 
where a vacancy arises for which an educator displaced 
during desegregation is qualified, that educator is 
entitled to a preferential right of employment in the 
position over new applicants of the opposite race.

_5 6VSingleton, supra at 1218; Lee v. Macon County Board of 
Educ. (Muscle Shoals), 453 F.2d 1104 (5th Cir. 1971); Lee

5 / continued
in "strict conformity with the orders as set forth in
the case of United States v. Wakulla County . . .."
No standards are cited from that case. There were none.
6 / "In addition if there is any such dismissal

or demotion, no staff vacancy may be fill­
ed through recruitment of. a person of a 
race, color, or national origin different 
from that of the individual dismissed or 
demoted, until each displaced staff mem- 
who is qualified has had an oppor­
tunity to fill the vacancy and has failed 
to accept an offer to do so." 419 F.2d 1218

(emphasis added)

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v. Macon County Bd. of Educ. (Florence), 456 F.2d 1371
(5th Cir. 1972).

Plaintiff's many years of experience as a principal 
demonstrate his qualifications as a principal. Not only 
is he the senior administrator in the system, but he is 
also certified for all levels —  elementary, junior high 
and high school principalships. Having been displaced 
from his principalship in 1970, he should have been con­
sidered for and offered each available principalship in 
the system before any person from outside of the pre­
desegregation principal population was offered it. The 
school district did not do so.

Instead, in 1970-71 the school district filled 
the Munroe and Southside Elementary schools with white 
principals who had not been principals prior to desegrega­
tion. In the fall of 1971, the school district appointed 
Leslie Jones, a white to the principalship of Gretna Ele­
mentary school for the first time. This was another filling 
of a position for which plaintiff was qualified. The fact 
that Jones' former position was assumed by the former prin­
cipal of Gretna does not diminish the fact that plaintiff 
could have equally filled the position. The two "swapped” 
principals' combined seniority was twelve (12) years as 
compared to plaintiff's thirty-two (32).

Plaintiff should have been offered the principal- 
ships of the three junior high schools which have been 
filled since the 1970 order. With his experience both as

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as principal before desegregation and as an assistant 
principal at the high school level afterwards and 
with his secondary certification, plaintiff was 
clearly qualified to assume those positions.

Ill
The District Court Properly 
Awarded Plaintiff a Reasonable 
Attorney's F e e _____________
The 1972 Emergency School AidAct, 20 U.S.C.

§ 1617, provides that:
Upon the entry of a final order by 

a court of the United States against a 
local educational agency, . . . for dis­
crimination on the basis of race, color, 
or national origin in violation of 
title VI of the Civil Rights Act of 
1964, or the fourteenth amendment to the 
Constitution of the United States as they 
pertain to elementary and secondary educa­
tion, the court, in its discretion, upon 
a finding that the proceedings were nec­
essary to bring about compliance, may allow 
the prevailing party, other than the United 
States, a reasonable attorney's fee as part 
of the costs.
The Supreme Court in Northcross v. Board of Educa­

tion , 412 U.S. 427 (1973); held that the prevailing plaintiff 
should be awarded such fees "unless special circumstances 
would render such an award unjust." The Court stated that 
such plaintiffs were private attorneys general vindicating 
national policy. The Court noted the similarity of the 
statutory language to Title II of the Civil Rights Act of 
1964 and cited its decision in Newman v. Piggie Park Enter­
prises , Inc., 390 U.S. 400 (1968).

In Bradley v. Richmond School Board, 416 U.S. 696

-22-



(1974), the Supreme Court held that the Emergency School 
Aid Act should be applied retroactively. While retro­
active application is not an issue in this litigation, 
the decision manifests the Supreme Court's strong policy 
in favor of such awards.

IV
The District Court Properly 
Ordered Plaintiff's Re­
appointment to a Principal- 
ship_____________________ ;_

The instant matter is almost identical in facts, 
violations of law and the Constitution and relief ordered 
to those detailed in McCurdy v. School Board of Palm Beach 
County, Florida, 367 F.Supp. 747 (S.D. Fla. 1973). The 
district court in granting plaintiff's preliminary injunc­
tion ordered the removal of a white administrator who was 
appointed to a principalship which plaintiff was entitled 
to under the proper application of Singleton III supra.
The preliminary injunction was made permanent in 1974.
388 F.Supp. 599. This Court in March 1975 affirmed per 
curiam the lower court's decision and orders. 509 F.2d 
(5th Cir. 1975).

Similarly, the court should affirm the district 
court's grant of reappointment to the plaintiff in the 
instant matter.

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Cross Appeal
V

The District Court Erred 
In Not Finding A Pattern 
and Practice of Racial 
Discrimination__________

In the defendants' Brief, they state that "the 
District Court found that "the transfer of the plaintiff 
was not racially motivated." (Brief of Defendants- 
Appellants Cross Appellees at p. 15). This is not 
accurate. The court found that plaintiff's reassignment 
was not the product of a pattern and practice of racial 
discrimination. (F.F. 6) The court made no finding as 
to whether or not a pattern or practice of racial dis­
crimination independent of plaintiff's situation existed.

Plaintiff believes that the district court 
erred in not finding that a pattern and practice of racial 
discrimination had occurred and continues to occur and 
in not finding that plaintiff's reassignment was part of 
such pattern and practice. The matters cited in Part "b" 
of Plaintiff's Statement of Facts demonstrate such a 
pattern and practice. The demotion of other black principals, 
the preferential hiring of whites as administrators, the 
reduction through discharges and non-hiring of blacks in 
the teaching ranks and the non-appointment of blacks to 
the county staff creates a prima facie case which places 
the burden of proof on the defendants. The statistical 
and other data show that desegregation has resulted in a 
disproportionate racial impact on black educators. Figures

-24-



speak and when they do, Courts listen." Brooks v. Beto, 
366 F .2d 1, 9 (5th Cir. 1966).

The Courts have made it quite clear in teacher 
retention cases arising out of desegregation of historical 
dual school systems that when a disproportionate racial 
impact is shown, the burden of proof shifts to the school 
authorities and they must explain their actions by "clear 
and convincing evidence." U .S. v. Jefferson County Board 
of Educ., 372 F.2d 836, 895 (5th Cir. 1966). Accord, 
Chambers v. Hendersonville City Board of Educ., 364 F.2d 
189, 192 (4th Cir. 1966); North Carolina Teachers Assn. 
v. Ashboro City' Board of Educ., 3 93 F.2d 73 6, 743 and 745 
(4th Cir. 1968); Rolfe v. County Board of Educ. of Lincoln 
County, 391 F.2d 77, 80 (6th Cir. 1968); Moore v. Board of 
Educ. of Chidester School Dist., No. 59, 448 F.2d 709, 711
(8th Cir. 1971); Jackson v. Wheatley School Dist._No■ 28,
430 F.2d 1359, 1363 (8th Cir. 1970); Haney v. County Board 
of Educ. of Sevier County, 429 F.2d 364, 370-71 (8th Cir. 
1970. See also Keyes v. School Dist. No.1 Denver Colorado, 
413 U.S. 109 (1973).

In the instant matter, defendants failed to ex­
plain in any manner the disproportionate impact. Under 
these circumstances the district court's failure to enter 
a finding of a pattern and practice was wrong and its 
finding that plaintiff's demotion was not part of said 
pattern and practice was "clearly erroneous" within the 
meaning of Rule 52(a) of the Federal Rules of Appellate 
Procedure.

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VI

The District Court Erred 
In Not Awarding Plaintiff 
Back Pay and Other Equitable 
Monetary Relief_____________

Plaintiff's earnings since desegregation were
at a minimum $900 less than those of William Grice, a
principal who retained his principalship and had comparable
seniority. Plaintiff also incurred as a result of his
demotion additional expense because he had to drive every
day an extra forty-four (44) miles to Chattahoochee. His
former position was in Quincy and subsequent principalship
vacancies arose in Quincy.

Back pay is an appropriate element of the equitable
relief to be granted a wrongfully demoted educator. Harkless
v. Sweeny Independent School District, et al., 427 F.2d 319,
324 (5th Cir. 1970); Wall v. Stanly County Bd. of Educ.,
378 F .2d 275, 276 (4th Cir. 1967).

In Pettway v. American Cast Iron Pipe Co., 494
F .2d 211 (5th Cir. 1974) this Court stated:

Under Title VII and section 1981 the injured 
workers must be restored to the economic po­sition in which they would have been but for 
the discrimination —  their "rightful place." 
Because of the compensatory nature of a back 
pay award and because of the "rightful place" 
theory, adopted by the courts, and of the 
strong congressional policy, embodied in 
Title VII, for remedying employment-dis­
crimination, the scope of a court's discre­
tion to deny back pay is narrow........
Once a court has determined that a plaintiff 
class has sustained economic loss from a dis­
criminatory employment practice, back pay 
should normally be awarded unless special 
circumstances are present . . . (emphasis 
in the original and added).
The district court should have in addition to

-26-



ordering plaintiff's reappointment to a principalship 
awarded him back pay for income lost and compensation 
for the additional expenses incurred as a result of 
his wrongful demotion. In not doing so, the court 
erred.

-27-



CONCLUSION

WHEREFORE, for the foregoing reasons, 
Plaintiff-Appellee Cross Appellant respectfully 
prays that the Order of the district court be 
affirmed with modification granting bach pay and 
other lost allowances to which he is entitled.

Plaintiff-Appellee Cross Appellant 
further respectfully prays that this Court grant 
him reasonable attorneys' fees in connection with 
this appeal as well as his costs.

Respectfully submitted,

SPRIGGSColle'geyKENT 
{ /  324 WTallahassee

Avenue 
Fla. 32301

JACK GREENBERG 
JAMES C. GRAY, JR.10 Columbus Circle

New York, New York 10019
Attorneys for Plaintiff-Appellee 

Cross Appellant

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C E R T I F I C A T E  OF S E R V I C E

I hereby certify that on this 14th day of
August, 1975, I served two copies of the foregoing
Brief for Plaintiff-Appellee Cross Appellant upon
counsel for the Defendants-Appellants Cross Appellees
by depositing same in the United States mail, first
class postage prepaid, addressed to -

Brian T. HayesPost Office Box 1385
Tallahassee, Florida 32302