Jackson v. Wheatley School District No. 28 Brief for Appellants

    Q  IT  * 0 0 0 - * £ * t U

In The
UNITED STATES COURT OF APPEALS 

For The Eighth Circuit 
No. 19952

L. R. JACKSON, et al..
Appellants,

v.
WHEATLEY SCHOOL DISTRICT 
NO. 28 OF ST. FRANCIS 
COUNTY, ARKANSAS, et al..

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF ARKANSAS 

EASTERN DIVISION

BRIEF FOR APPELLANTS

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER 
CONRAD K. HARPER10 Columbus Circle 

Suite 2030
New York, N.Y. 10019

JOHN W. WALKER1820 West 13th Street 
Little Rock, Arkansas

GEORGE HOWARD, JR.
329% Main Street 
Pine Bluff, Arkansas

Attorneys for Appellants



I N D E X

Statement of Issues Presented For Review . . . .
Statement of the Case ........................
Statement of Facts ............................

Introduction ............................
Description of Appellants and Their Damages
Charges Against Appellants ................

(a) Background ......................
(b) L. R. Jackson................ 1

(c) Mrs. Mittie Jackson.......... \

(d) Mrs. Malissa A. Meeks ..........
(e) Marvin E. Coleman ..............

The Quality of Wheatley Central School . .
Constitutional and Statutory Provisions Involved

Page
1
2

3
3
8
11
11
13
15
17
18 
18 
19

Argument j .
Appellant Black Tf.ichers, Not Rehired by 
Appellee School District Because of Race 
in Violation of the Fourteenth Amendment,
Are, Upon Reversal of The District Court,
Entitled to Relief.........................
, . ..........  29Conclusion......................j * *

 ̂„ . [ . 3 0Certificate of Service ........ i ..

l



Table of Authorities:

Cases:
Freeman v. Gould Special School District, 
1153 (8th Cir. 1969), cert, denied 24 L. 
(1969)............................. *

405 F.2d 
Ed.2d 93

Hill v. County Board of Education of Franklin County, Tennessee, 390 F.2d 583 (6th Cir. 1968) . .
Rogers v. Paul, 382 U.S. 198 (1965)................
Rolfe v. County Board of Education of Lincoln County, 
Tenn., 391 F.2d 77 (6th Cir. 1968) ................
Smith v. Morrilton School District No, 3 2 , 3 6 5  Y . 2 &
770 (8th Cir. 1966).................. 2i' '

Wall v. Stanly County Board of Education, 378 F.2d 
275 (4th Cir. 1967) ..............................

Walton v. Nashville, Ark., Special School District No 
401 F.2d 137 (8th Cir. 1968) ......................

Constitutional provisions: 
Fourteenth Amendment . .
Statutory Provisions:
28 U.S.C. § 1331(a) . . .
28 U.S.C. §§ 1343 . . . .
28 U.S.C. § 2201 ........
28 U.S.C. § 2202 ........
42 U.S.C. § 1981 . . . . • 
42 U.S.C. § 1983 . . . .

Page

28

. 29

. 25

24, 29

28, 29

. 24
. 1,27, 28

19, 21

19, 20 
2 , 20 

2 , 20 

2, 21 
2, 21 
2, 21

ii



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT 
NO. 19952

— — - — — x
L. R. JACKSON, et al.,

Appellants,
v.

WHEATLEY SCHOOL DISTRICT NO. 28 
OF ST. FRANCIS COUNTY, ARKANSAS, 
et al.

Appellees. ,

Appeal From The United States District Court For The Eastern District of Arkansas7~Eastern Division
BRIEF FOR APPELLANTS

STATEMENT OF ISSUES PRESENTED FOR REVIEW

(1) The court erred in dismissing plaintiffs
complaint.  ̂ j

(2) The court erred in not finding defendants
dismissal of or refusal to rehire plaintiffs violated 
plaintiffs' rights equal protection of the laws and due 
process of law granted by the Fourteenth Amendment to the 
Constitution of the United States.



STATEMENT OF THE CASE

This is an appeal from a judgment of the District 
Court for the Eastern District of Arkansas, Eastern 
Division, denying damages and attorneys* fees sought by 
black plaintiffs-appellants following the school district’s 
refusal to reemploy them as teachers for the 1968-69 school
year (334) Plaintiffs-appellants-^instituted this
action on September 12, 1968 against the Wheatley School 
District No. 28 of St. Francis County, Arkansas; against 
the school district's superintendent Sidney Kennedy, and 
against the members of the school district’s board of 
directors ( l a - 2 a ) T h e  action was brought pursuant to 
28 U.S.C. §§ 1331, 1343, 2201 and 2202, as well as 42 U.S.C 
§§ 1981 and 1983 and the Fourteenth Amendment (2a-3a). The

1/ Citations in parenthesis numbered 1-346 are to the 
transcript of testimony, the judgment, notice of appeal and 
bond for cost on appeal in the Appendix. Citations in 
parenthesis numbered la-17a are to that portion o* ® 
Appendix containing the docket entries, complaint, answer, 
and the district court’s letter memorandum.
2/ L. R. Jackson and his wife, 

Coleman; Mrs. Malissa A. Meeks; 
Association (2a).

Mittie Jackson; Marvin E. 
and the Arkansas Teachers

3/ The named members of the board of directors are Ira 0. 
Wheeler, Billy Joe Jones, Bobby Michaelis, Bobby Noosler and
Paul Gehring (4a).

2



complaint asserted that the board’s refusal to rehire the 
teachers was racially motivated in violation of their

_4/federal statutory and constitutional rights (3a, 5a). 
Defendants-appellees filed an answer on September 27, 1968
in substance denying the allegations of racial discrim­
ination and requesting dismissal of the complaint (la, 7a 
9a). Trial was had March 13-14, 1969, and by a letter
memorandum and judgment filed July 1, 1969 the district
court denied plaintiffs-appellants all relief and dismissed 
the complaint (la, 17a, 344). July 28, 1969 plaintiffs- 
appellants filed notice of appeal (la, 345).

STATEMENT OF FACTS
Introduction

The Wheatley School District has approximately 
425 students of whom 60% are black and 40% white (21, 329). 
The members of the board of education and the administrative
staff are white (20). Beginning in 1965-66, the school

...

district adopted a freedom of choice desegregation plan to 
comply with H.E.W. requirements which resulted in eight 
black students attending the formerly all white elementary

4/ The complaint also sought injunctive relief requiring 
t£e schooi°district to award plaintiffs-apPellants contracts 
for the 1968-69 school year and to forbid the to employ any teachers until the hearing 6a). During thethe parties agreed that the question of contracts for 
the school year 1968-69 was moot (17a).

3



school in grades one through four (11a, 107-08). During 
1966-67, the freedom of choice plan was extended to grades 
one through eight and one black teacher, Mrs. Spears, was 
assigned to the formerly all-white Wheatley Elementary 
School where she taught a special reading course only to 
black students (108). Mrs. Spears continues teaching only 
black students at Wheatley Elementary (108, 285, 320).

In 1967-68 the freedom of choice plan was extended 
to all twelve grades (85, 109) but the dual system remained 
in that Wheatley Central School continued as an all-black 
school with some 90 students and its five black teachers 
included all appellants (12a, 90-91, 124-25, 329). The 
formerly all-white Wheatley Elementary and High School had,- 
therefore, some 335 students and 18 teachers (see 91). As a 
result of H.E.W. direction a second black teacher,
Mrs. Dickson, was transferred to Wheatley Elementary but she, 
like Mrs. Spears, taught a class variously described as being 
either all-black or having one white student (12, 38, 110-11, 
231-32, 285, 320). Two blacks, Mr. and Mrs. James Haley, of
whom the husband was a student teacher, also taught in 
Wheatley Junior and Senior High during 1967-68 (69, 93-94).

On March 1, 1968, the school district distributed
freedom of choice fo his to pupils (202). March 11, 1968, the 
board, in order to reduce the number of faculty, decided not 
to rehire appellants for the school year 1968-69 (62-63, 65,

4



2 6 2 )  —  At 1:116 same Marcl1 l1' 1968 board meeting Sidney
Kennedy was hired as superintendent to replace the then 
superintendent Richardson on July 1, 1968 (6, 238, 277- 
78). In April or May, 1968, he and his wife signed 
contracts with the school district (278). At the end of 
March, 1968, appellant L. R. Jackson was first informed of 
the non-reemployment of all appellants by Superintendent 
Richardson who said, "Jackson, the main reason is we are 
entering integration and this board does not want you to
teach their children" (112).

On April 2, 1968, following the return of theI
freedom of choice forms, the board of education formally 
decided to close Wheatley Central because only about 32
students had elected to remain there for the next school/'
year (203, 257) . On April 29, 1968 all appellants met_ 
with the board and Messrs. Richardson and Kennedy concerning 
employment (71, 114, 137). As the reason for not reemploying
appellants, the board stated at the meeting that the 
consolidation of Wheatley Central with Wheatley Elementary
resulted in more blacks than whites and that the number of/

5/ The board also decided not to rehire a white teacher, 
James Cooper, at the March 11, 1968 meeting because of dis­
satisfaction with hi. . *  work (241 (2 )-l. e_._ the second of two 
pages numbered 241).

5



teachers already employed was sufficient (113, 225).
The board also stated that if any more teachers were
hired, appellants would be considered (32, 113-14, 224, 331- 
2 2) _Z/ The board also agreed to follow the recommendations
of the incoming superintendent, Kennedy, on hiring teachers.
On May 23, 1968 the school year ended and five days later,
on May 28, appellants were sent letters stating they were
not rehired for 1968-69 (279-80).

Prior to July 1, 1968, nine teachers, including the
four black appellants, were notified they would not be rehired

8/(287-88). Four of the nine were white and the fifth black 
was James Haley (287-89). A tenth white teacher-^Aresigned 
in order to complete her schooling (289-90). Prior to July 1,

—6/

6/ This practice of not rehiring black teachers when there 
"ire sufficient whites accords with the view of one board 
member, Bobby Michaelis (217-218):

Q. What do you do if the pupils decide that 
they don't want to go to a black teacher, say all 
the pupils over there decide they don't want a 
black teacher— would you fire that teacher?A. They'd have to go to a white teacher, then.

Q. Would you fire that black teacher^then?
A. X suppose you'd have to, if she did't have

any pupils.
7/ At this meeting appellants were not asked to submit formal 
applications and they did not do so (224-25, 299). It was not 
the practice for teachers currently employed to submit an appli 
cation for reemployment (137-38). The district court, m  any 
event, was "not very greatly impressed" with the notion that 
current employees needed formally to reapply (332).
8/ Billy Harris, Dennis Russell, James Cooper, Mrs. Joan Long.
9/ Mrs. Mary Ellen Gehring, a daughter-in-law of board member 

Paul Gehring (289, 324).

6



, ., , , „12/were employed for 1968-69, one1968, six new white teachers ^
of whom was the new superintendent's wife and another was his 
niece (325, 335). New superintendent Kennedy's disclaimer 
that he had any role in employment matters before July 1,
1968 (278) was initially contradicted by the board president
who testified the board hired new teachers only on Kennedy s 
recommendation (29-30, 33-34). The board president later 
changed his testimony to assert Kennedy made no recommendations 
before July 1, 1968 (34, 88). The board decided on April 29, 
1968, however, to accept Kennedy's recommendations on 
teachers hired in the future (71, 322-23). Kennedy hired a 
new white principal of Wheatley High ^about September 1, 1968
(297). Kennedy also hired a new white teacher to replace a 
black teacher, Mrs. James Haley, when she resigned because of
pregnancy in August, 1968 (72, 296-97).

In summary, the board hired seven new white teachers

10/ Mrs. Minola Kennedy, wife of the superintendent; John 
Stroud; Edith Ann Pierce; Connie Bellinger; Mrs. Hoyle 
Halbert; Evelyn Lineback. Mrs. Lineback had Previously taught 
in the district but was not employed there during 1967 68 (335).
11/ William Lee.
12/ Glenn Robinson, the only applicant hired of the four 
whites and one black who applied (298).

7



and a white principal for 1968-69 and it did not rehire five 
blacks and four whites. In addition one white teacher and 
one black resigned. Two of the new white teachers taught 
only in Wheatley Elementary and a third taught music, 
including elementary music (329-30, 336-37). In 1967-68 there 
were 23 teachers in the district: 5 blacks at Wheatley Central;
4 blacks and 14 whites at Wheatley Elementary, Junior High 
and Senior High School (91-92). One of the Wheatley Central 
black teachers was transferred to Wheatley Elementary for 
1968-69 (91); the other four were not rehired and are the 
appellants. In 1968-69, there were 3 black and 15 white 
teachers at the Wheatley Elementary, Junior and Senior High 
School plus and a white principal and a white superintendent 
(92). The three hlack teachers^urrently employed are 
teaching all-hlack classes--—in Wheatley Elementary (93) where 
there is a total of nine teachers (94).
Description of Appellants and Their Damages

Appellant L. R. Jackson, 59, holds a B.S. degree 
in elementary education from Grambling College (95, 122). He 
minored in sociology and is certified as an elementary school

13/ Mrs. Iola Faye Dickson, Mrs. Anneice Cannon, Mrs. Lou 
Anna Spears (12-14).
14/ This is not 
have all-black cl 
student (12-14).

strictly accurate. Mrs. Cannon and Mrs. 
asses but Mrs. Dickson has one white

Spears

! “ 8



teacher and as a high school social studies teacher (95, 122-23).
He has taught for 25 years, eleven of them as a teacher and
supervisor-principal at Wheatley Central where he taught fifth
grade (95-96, 126, 136). At the time of trial he was employed
part-time by the Brinkley, Arkansas, school district as a
teacher in adult education (118-19). His seven-month Brinkley
contract included a salary of $2100 (119). In 1967-68 his

15/Wheatley Central salary was $5600 (119). He attempted to 
mitigate damages by seeking employment in 24 named school 
districts (119-20, 138-39). As a result of having to take his 
wife to work, he travels some 62 miles a day as opposed to 
having traveled five miles to Wheatley (120-21). In addition he 
has suffered other financial distress directly related to losing
employment in Wheatley (121).

Appellant Mrs. Mittie Jackson, wife of L. R. Jackson,
is 45 and taught third grade at Wheatley Central during 1967-68 
(136, 158). She went through some trouble securing new employment 
by filing several applications (139). At the time of trial she 
was employed at the Derossitt Elementary School in Forrest City, 
Arkansas, at a salary of $5600 for an eleven-month period (157-58, 
163) as opposed to her $5500 salary for a ten-month period at 
Wheatley Central (156).

15/ Jackson testified his gross Brinkley salary was $300 a month 
(144) but the largest take-home pay he has received was $250 (1 ).
At Wheatley Central his monthly take-home pay was about $457.19 
(134-35).



Appellant Mrs. Malissa A. Meeks, 4 6 , a 
B.A. in elementary education from Philander Smith College 
(180-81). She is L. R. Jackson's sister and she taught 
second, third and fourth grades at various times in.Wheatley 
Central for at least eight years (180-82). Following her 
non-reemployment at Wheatley Central she tried to obtain 
other employment (189). At the time of trial she was 
employed, as was L. R. Jackson, as an adult education
teacher in Brinkley at a salary of $300 per month or $2100 
for a seven-month period (118, 188-89, 195). Her Wheatley
Central salary was $5500 (190).

Appellant Marvin E. Coleman holds a Bachelor of
■Rheology degree with teacher's training from Burgen College 
and Seminary (147, 149). He began teaching at Wheatley 
Central in 1956 but was away for three years between 1956
and 1962 (149-50). He returned in 1963 and taught fourth
grade (136). He holds a Colorado vocational teacher's 
certificate in automechanics (150). He also held a 90- 
hour Arkansas elementary school permit valid from May 13, 
1963 to May 13, 1968 (150). He received two other permits, 
one valid from May 2, 1968 to August 31, 1968, and another

16/ The record shows one document listing Mrs. Meeks  ̂birth date as April 18, 1916 (192). She clearly testified,
however, that she was 46 and was born in April, 1922 
(180, 193-94).

10



which renewed his certificate so that at the time of trial he had 
been continuously certified since May 13, 1963 (151-52). He has 
17 hours in education courses (147), five hours of graduate work 
(147), and he needs 12 hours of additional graduate work for a 
six-year teaching certificate (148). At the time of trial he was 
teaching at the Arkansas Enterprises for the Blind in Little Rock 
(145, 154) where his yearly salary was $4200 as compared to his 
Wheatley Central salary of $4800 (145). He made numerous attempts 
to secure new employment before taking his present position (146) 
and he has incurred additional expenses in connection with his 
new employment such as room rent and transportation (146-47). 
Charges Against Appellants

(A) Background
It is uncontradicted Superintendent Richardson told 

appellant L. R. Jackson in late March, 1968, that the m a m  reason 
for not rehiring appellants was "integration" and the board's 
unwillingness for blacks to teach their children (112). The 
president of the board, Ira 0. Wheeler, unequivocally testified
(27):

Q. Why would you have not wanted your 
child to attend that school [i.e. Wheatley 
Central]?

A. Because it was an all-colored school.

Another board member, Bobby Michaelis, though asserting he



did not want his child to go to Central because of the 
teachers' alleged lack of qualifications (205-06), also
testified as follows (214-15):

Q. But you would ordinarily, all 
things being equal, not want your child to 
attend a black teacher's class, isn't that 
true? Just answer yes or no.

A. No.
Q. You would not want her to?
A. I would not.

Another board member, Robert G. Noosler, testified as 
follows (267) :

q . So that you pursued^the 
pattern that has been established in the! 
community of white pupils going to white 
schools and black pupils going to black schools.

A. Right.{
Q. Would you have wanted your child 

to be assigned to Wheatley Central School?
A. Not at that time, no.

There were two other board members in 1968 (4a, 8a) but one,
Paul Gehring, did not testify and the other, Billy Joe Jones,

j
was never asked whether he wished his children to be taught 
by a black teacher or to attend Wheatley Central (see 218-41), 
Thus a three out of five or a majority of the board which did 
not rehire appellE *.ts were opposed to their children's being 
taught by blacks. While three black teachers in the Wheatley

17/ Another board member, Russell James 
b^t he was elected to the board in March,

Noosler testified 
1969 (243) .

12



Elementary School in 1968-69 had but one white student 
between them (12-14), and while a total of 58 classes had 
a 1968-69 enrollment over 50% black, one of the two 
teachers with a predominantly white class, Mrs. French, is 
a relative of the board president (285-86, 319-20, 326). 
Neither former superintendent Richardson nor Kennedy made
any recommendations on appellants' possible reemployment 
(238-39, 241). Richardson gave the board no written 
evaluation of appellants nor any comparison of appellants 
with other teachers in the district (241(1), 262-64) and 
the board made no objective determination of appellants' 
comparative qualifications with those of the new white 
teachers (33). At some unspecified time prior to March 11, 
1968, according to board member Robert G. Noosler,
Richardson said appellants' work was unacceptable and that 
he had received complaints which indicated appellants ought 
to be replaced (259, 269). At the board's March 11 meeting
appellants were not rehired because of complaints against 
them (258). The complaints were apparently of two types, 
i.e., allegations of failure to pay creditors and poor 
pedagogy (see 198-201, 226). The board disclaimed any racial 
motivation (e.g. 226). The specific charges against each 
appellant are treated in turn.

(B) L. R. Jackson
On April 11, 1960, the school board minutes showed 

that "several colored citizens" voiced unspecified complaints 
against Jackson (198-200). Jackson testified he was not at

13



the board meeting but a school board member believed he 
was there (106, 127-28, 199-200). Jackson stated that 
school district patrons did not complain of his work 
(128). Nothing further appears in the record about
this matter.

On March 25, 1964 the board minutes showed 
that Jackson was to be permitted to give his side of a 
problem and that Jackson "cleared this matter to the 
satisfaction of the board and the matter was dropped" 
(200). The matter which was dropped referred to 
complaints that Jackson let his wife go to work when 
she wished and that both had not paid their bills 
leading to threats of garnishment (201). Jackson said 
Superintendent Richardson, who was at Wheatley only 
during 1966-67 (274), mentioned the debts of his wife
and Mrs. Meeks one time (134). In the view of one 
board member, Bobby Michaelis, Jackson was unqualified 
because he did not pay his or his wife's bills (211). 
Another board member, Robert G. Noosler, conceded it 
would have been fair to permit appellants to appear 
before the board on credit problems before deciding 
against reemployment (264-65). Noosler did not know 
whether other teachers had credit problems but admitted 
most people, including himself, have credit difficulty 
at some time (265-66). The board president asserted 
Jackson was not rehired because of "dissatisfaction with

14



his teaching and principalship" (55) but the termination letter 
sent to Jackson on May 28, 1968, gave as the sole reason no 
position was available "such as you have held [,] in our 
reorganized school that your qualifications would fill" (56).
In fact no reason is given for the non-reemployment of any 
appellant in the board minutes (63-65).

Board member Michaelis asserted he would have fired 
Jackson before 1968 (207, 212-13) but admitted he moved to employ 
all of the Wheatley teachers as recently as 1967 (235).

(C) Mrs. Mit-tie Jackson
The school board charged that numerous complaints were 

made against Mrs. Jackson because of her indebtedness (e^£. 198) 
and that the "colored people"; were dissatisfied (198). She and 
the other Wheatley teachers Were said generally not to be doing
their job" (226).

The board president asserted she charged personal items 
on the school district's account (74, 82-83). Mrs. Jackson 
categorically denied this assertion (338) and stated she paid 
all charges made for use at Wheatley Central by September, 1968 
(338, see also 117, 132-33). Her husband pointed out that Wheatley 
Central teachers several times purchased needed teaching materials 
with their own money (’00, see also |191). This was so because the

15



superintendent was not providing these materials, including 
textbooks (100). Wheatley Central received only "hand-me- 
down books from the white school" and used desks from the 
same school (101). Wheatley Central children had to sweep 
water out of the lunchroom when it rained and the school 
district provided the school not with a janitor but with a 
man who swept after dinner (101-03). The superintendent gave 
Wheatley Central funds for a mop but Jackson had "to do the 
work" (103). In the last nine years no school board member 
visited the school (98) and the superintendent visited a 
classroom once when a H.E.WT. team inspected (103-04) . In 
these circumstances, Mrs. Jackson was accused of unauthorized 
purchases where none of the invoices purportedly supporting 
the accusation showed any such action on her part (299—306).
The bills in question are either addressed to Mrs. Jackson 
without any indication of purchase for the school district or 
the bills are addressed to the school district without any 
indication Mrs. Jackson made the purchases (301—05). There is 
no evidence the school district ever paid any of Mrs. Jackson s 
personal debts (305—06) notwithstanding the fact that a bill 
collector assertedly approached Superintendent Kennedy about 
such payment (299-300).

Mrs. Jackson was also charged with absenteeism (53) 
but it is uncontradicted she was absent only once for 30 days 
in order to aid her mother who had suffered a heart attack (158).

16



At her new position in Brinkley she has been absent 12 or 14 
days for the same reason (159, 167-68) and one-half a day 
for depositions in this action (168).

(D) Mrs. Malissa A. Meeks
Mrs. Meeks candidly admitted that a fire, which 

destroyed her home, large physicians' bills, and the costs 
of sending two children to college and one to high school, 
put her in substantial debt (189-90, see 251). She believed, 
however, her delinquent accounts were not too serious (183). 
She was supported in this belief by Russell James Noosler, a 
collector and salesman for Dixie Furniture, one of her 
creditors, and a recently elected school board member (242-43, 
251). Noosler confirmed she "pays" her accounts (248) but 
that at the time of trial she was some eight months behind on 
a $200 account, payable at $16.20 per month, which had been 
refinanced the same month the board decided not to reemploy 
her, March, 1968 (249-51). She made at least partial payment 
on the account, however, as recently as three months before 
trial (250). Noosler admitted Mrs. Meeks' losing her 
Wheatley Central position could have affected her ability to 
pay (249) and he further noted that delinquent accounts are 
not unusual (251). Noosler mentioned Mrs. Meeks' delinquency 
to Superintendent Richardson and board member Jones (244) but 
he never sought garnishment (254).

Board member Jones maintained Mrs. Meeks' check had 
once been garnished by an automobile finance company in 1966

17



(227, 233) but no record was made of it (233, 321). Jones was 
unaware of Mrs. Meeks' fire but he thought it "might have 
been important to know of the fire before judging her credit 
problems (233-34). Mrs. Meeks stated she had never had a 
check garnished (186). Mrs. Meeks also pointed out that another 
creditor, Frank Hemmingway, with whom she had once tried to 
effect the assignment of one of her school district checks, had
been paid (184, 228).

(E) Marvin E. Coleman
The board charged Coleman was not rehired because he 

might not be certified for 1968-69 (48-49, 205). But the fact 
is he was recertified and never lost his certification (151-52).
No other specific charges were made against him.
The Quality of Wheatley Central School

In an attempt generally to show appellants' alleged 
lack of qualifications (e.g. 205), the school district under­
took to demonstrate that student achievement levels were low at 
Wheatley Central (292-96). One board member, Robert G. Noosler, 
testified, however, he did not know whether white and black 
schools were of equal quality (273). But only one of these 
standard tests had been given prior to March, 1968, one
given to L. R. Jackson's fifth grade class during September, 
1967, the first month of school (292-96). Jackson's students 
achievement level was rated at the fourth month of the second 
grade (292) . On the examination given in April, 1968 to

18



appellants’ classes all but Mrs. Meeks’ class, which scored 
slightly above its grade level, scored about one to two 
grade levels below their current grade (292-96). Whatever 
importance might attach to these results was wholly 
vitiated by Superintendent Kennedy's view that for validity 
the tests needed a student population of 100 (310) but only 
41 and 54 students took each of the examinations (310-11). 
Kennedy also admitted that lower scores of blacks are due 
historically to the failure to provide equal educational 
opportunity (313). Kennedy was unable to cite any educator 
for his view that the teacher’s importance for achievement 
scores is 75% and he agreed that students who made high 
scores would not necessarily owe it to the teacher (309, 
313-14).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the Fourteenth Amendment to the

United States Constitution.
This case also involves the following United

States statutes:
28 U.S.C. § 1331:

(a) The district courts shall have 
original jurisdiction of all civil actions 
wherein the matter in controversy exceeds 
the sum or value of $10,000, exclusive of 
interest and costs, and arises under the 
Constitution, laws, or treaties of the 
United States.

- 19



(b) Except when express provision 
therefor is otherwise made in a statute 
of the United States, where the plaintiff 
is finally adjudged to be entitled to 
recover less than the sum or value of 
$10,000, computed without regard to any 
setoff or counterclaim to which the 
defendant may be adjudged to be entitled, 
and exclusive of interests and costs, the 
district court may deny costs to the plain­
tiff and, in addition, may impose costs on 
the plaintiff.

28 U.S.C. §§ 1343(3) and (4):
The district courts shall have original 

jurisdiction of any civil action authorized 
by law to be commenced by any person:

* * *
(3) To redress the deprivation, under 

color of any State law, statute, ordinance, 
regulation, custom or usage, of any right, 
privilege or immunity secured by the Constitution of the United States or by any 
Act of Congress providing for equal rights 
of citizens or of all persons within the 
jurisdiction of the United States;

(4) To recover damages or to secure 
equitable or other relief under any Act of 
Congress providing for the protection of 
civil rights, including the right to vote.

28 U.S.C. § 2201:
In a case of actual controversy within 

its jurisdiction, except with respect to 
Federal taxes, any court of the United 
States, upon the filing of an appropriate 
pleading, may declare the rights and other 
legal relations of any interested party 
seeking such declaration, whether or not 
further relief is or could be sought. Any 
such declaration shall have the force and 
effect of a final judgment or decree and shall 
be reviewable as such.

20



decision 
770 (8th

28 U.S.C. § 2202:
Further necessary or proper relief based 

on a declaratory judgment or decree may be 
granted, after reasonable notice and hearing, 
against any adverse party whose rights have 
been determined by such judgment.

42 U.S.C. § 1981:
All persons within the jurisdiction of 

the United States shall have the same right 
in every State and Territory to make and^ 
enforce contracts, to sue, be parties, give 
evidence, and to the full and equal benefit 
of all laws and proceedings for the security 
of persons and property as is enjoyed by 
white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, 
and exactions of every kind, and to no other.

42 U.S.C. § 1983: |
Every person who, under color of any 

statute, ordinance, regulation, custom, or 
usage, of any State or Territory, subjects, 
or causes to be subjected, any citizen of the 
United States or (other person within the
jurisdiction thereof to the deprivation of---
any rights, privileges, or immunities secured 
by the Constitution and laws, shall be liable 
to the party injured in an action at law, 
suit in equity, or other proper proceeding for 
redress. j

/ ARGUMENT
Appellant Black Teachers, Not Rehired 
By Appellee School District Because 
of Race in Violation of The Fourteenth 
Amendment, Are, Upon Reversal of The 
District Court, Entitled to Relief.

This case _*3 controlled by this Court's unanimous
in Smith v. Morrilton School District No. 32, 365 F.2d
Cir. 1966). Here, as in Smith, black teachers were

21 -



assigned to an all black school but were not rehired for 
1968-69 when the closing of the school effected complete 
pupil desegregation. By way of defense the school district 
asserts the four appellants were not rehired on March 11,
1968, some three weeks prior to the board decision to close 
all-black Wheatley Central on April 2, 1968 (e^- 202, 222,
257). But the record is clear that a majority of the board in 
any event did not want their children taught by black faculty 
and the three black teachers rehired to teach in the 
desegregated Wheatley Elementary had only one white student 
between them. Furthermore, the board told appellants they would 
be considered for vacancies yet seven new white teachers were 
hired, two of whom taught exclusively in the elementary grades 
for which appellants were certified. In these circumstances, 
little weight can be given to the board's view that formal 
board action closing Wheatley Central was taken after formal
board action not rehiring appellants. .

Additional fa-cs make it dubious to rely solely on
the chronology of formal board actions. The school district 
is small, having only 425 pupils and five board members. Yet 
appellants did not learn of the board's March 11, 1968 decision 
not to rehire them until late March at the earliest (see 112) 
and one appellant, Mrs. Meeks, maintained she heard of the 
decision less than a month before April 29, 1968 (182).
Moreover Wheatley Central had been losing black students, who 
chose to go to the formerly all-white school, for several 
years pursuant to the freedom of choice plan instituted in 1965

22



(107-09); thus it was reasonable to suppose that when freedom 
of choice forms were distributed March 1, 1968 that a number 
of black students would choose to leave Wheatley Central. In 
fact some 60 students chose to leave the school, reducing its 
student population to about 30 for 1968-69. As this Court 
said in Smith, 365 F.2d at 779, "The use of the freedom-of- 
choice plan, associated with the fact of a new high school 
plant, produced a result which the superintendent must have 
anticipated, despite his testimony that he 'rather guessed' 
that [all black] Sullivan would continue to operate . . . "

Finally, the then superintendent, Richardson, told 
appellant Jackson that "integration" was the reason for non­
reemployment (112) and, since Richardson did not testify, this 
testimony is uncontradicted. The board itself told appellants 
on April 29, 1968, that the number of teachers already employed 
was sufficient for the desegregated school (113). In short, it 
is not credible to assert appellants' non-reemployment was 
unrelated to the closing of Wheatley Central. "The dismissals 
were a forseeable consequence of the Board's somewhat belated 
effort to bring the school system into conformity with consti­
tutional principles. . ." Smith, supra, 365 F.2d at 779.

In the instant case, as in Smith, the school board 
began belated desegregation in 1965 with a freedom of choice 
plan which resulted in only eight black students attending the

■iI.1
'j\

:i

23

au
w—

—
 —

i



formerly white school. From 1965 through appellants' last 
year of Wheatley Central employment, the Board not only
continued operating an all-black school, but the black 
teachers assigned to the white school had segregated black 
classes except for one white student. As Smith said, 365 
F.2d at 780: "We therefore hold that the Sullivan dismissals,
although pursuant to a tradition and policy not invalid on 
their face, assumed questionable status in light of the Board s 
unconstitutional practices in the past which contributed to
teacher status in the present."

Smith clearly recognized that black teachers are 
entitled to a comparative evaluation of their qualifications 
against similarly situated teachers in a school system prior 
to discharge. 365 F.2d at 783-84. To the same effect are the 
holdings in Rolfe v. County Board of Education of Lincoln 
County, Tenn. , 391 F.2d 77 (6th Cir. 1968); Wall v. Stanly 
County Board of Education, 378 F.2d 275 (4th Cir. 1967). The 
record here shows not only did Superintendent Richardson make no 
recommendations regarding appellants' employment to the board; he
also failed to make any comparison of appellants with other

18/teachers, and the board made none (33, 241, 262-64) . These facts
reinforce the conclusion that appellants were treated as employees

18/ The district court erroneously concluded appellants were 
nbt rehired on Richardson's recommendation (12a).

24



of their Fourteenth Amendmentonly for a black school in violation 
rights. Cf. Rogers v. Paul, 382 U.S. 198 (1965). Furthermore 
there is no evidence that the board's complaints regarding the 
black community's alleged dissatisfaction with appellants, the 
indebtedness of some appellants, and the student achievement of 
their pupils were ever brought to appellants' attention (see 31,
105, 136, 141, 149, 153, 184) with the possible exceptions of 
I960 and 1964 incidents involving appellant L. R. Jackson and a 
single mention of Mrs. Meeks' and Mrs. Jackson's indebtedness by 
Richardson (59-60, 134). The school district's claims that 
Mrs. Jackson was excessively absent or charged personal items to 
the district are insubstantial against (a) the evidence of her 
single absence for a 30-day period to aid her mother suffering from 
a heart attack and (b) the evidence of the school district's 
failure to produce any record showing an unauthorized charge.
The school district's failure to inform appellants of alleged 
shortcomings is all the more inexplicable because ample 
opportunity was afforded by appellants' appearance at a school 
board meeting April 29, 1968, to discover the reasons for 
discharge (s-ee 113-14). Since neither the board members nor 
the superintendent visited Wheatley Central— / (81, 98, 209-10, 
272-73), perhaps it is not surprising that appellants had no 
notice of charges. In any event, most of the charges, such as 
indebtedness, were unrelated to teaching and no charge was

19/ Superintendent Richardson visited Wheatley Central once xn 
the company of an H.E.W. investigative team (103-04).

25



based ■upon direct observation of appellants* classroom 

performance.
The district court erroneously concluded 

appellant Coleman "failed to meet [certification] require­
ments and was therefore offered no contract for the school 
year 1968-69" (14a-15a). The record is clear, however, that
he was continuously certified from May 13, 1963 to the time 
of trial, March 13, 1969, pursuant to three emergency permits

(150-52).
The district court also erroneously concluded there 

was "no question but what the record of Hr. Jackson,
Mrs. Meeks, and Mr. Coleman was primarily responsible for the 
low rating being maintained for the Wheatley Central Elementary 
School" (15a). On the contrary, the record shows physical 
deprivations such as a flooded lunchroom, virtually non-existent 
janitorial service and too few textbooks, which doublessly 
affected student performance (see 101-03). In addition the 
validity of student achievement scores was undermined not only 
by Superintendent Kennedy, who pointed out inadequate sampling 
(310-11), but also by the total absence of comparative data 
from the white school. To confuse the victims of unequal 
educational opportunity, which was conceded to exist by Kennedy 
(313), with the perpetrators of discrimination is hardly 
persuasive. At any rate, most of the student achievement tests 
were given after appellants were not rehired; thus they could 
not have influenced the board's action terminating appellants'

employment.

26



The district court also made the wholly unfounded 
charge that Mr. Jackson and Mrs. Meeks "were unable to obtain 
comparable teaching positions with their record" (15a). There 
is not a shred of evidence to support this charge.

The district court also erroneously concluded there 
was "no vacancy for elementary teachers" in the formerly white 
school and that "only one teacher was replaced in the elementary 
grades" ( 1 7 a ) T h e  evidence is exactly contrary. The school 
district hired seven new white teachers of whom two taught 
exclusively elementary grades (329-30, 336-37). L. R. Jackson 
was also certified to teach high school civics, history,

Igeography, and social studies (122-24). One of the new white 
teachers taught a class of geography (337).

The district court; felt bound by Walton v. Nashville,• /'
Ark., Special School District No.-1,-401 F.2d 137 (8th Cir. 1968)
(16a-17a). But Walton is wholly inapposite. The Walton court, 
in finding no racial discrimination, affirmed the district courti
on three basic grounds: (1) Walton appellant Major Reynolds
White failed to comply with the school board's reasonable 
regulation that he file a copy of his college transcript, 401 F.2d
at 141-42; (2) Walton appellant Mrs. Ernestine Walton was in fact

!compared with a white home economics teacher of superior qualifica 
tions and with a white1science and mathematics teacher of superior

20/ The district also erroneously concluded that 4 black and 14 
white teachers were employed in 1968-69 (14a). The record shows 
3 black and 15 white teachers (92).

27



qualifications, 401 F.2d at 143-44; (3) Walton appellant Claude
E. King, Jr. was in fact employed to teach the subject of his 
choice after an immaterial delay, 401 F.2d at 144. In the 
instant appeal, however, there is no showing of appellants' 
failure to comply with reasonable regulations, no showing that 
any white teacher had qualifications equal or superior to
appellants', and no showing that appellants were offered or

, n 21/ as if forseeing the instant appeal,accepted reemployment. ^
this Court said in Walton, "What we say and hold here is by 
no means a retreat from the pronouncements of this court as to 
faculty integration and assignment in the several cases decided

I*
in recent years [citing six cases]. 401 F.2d 144-45.

While appellants' claim for reinstatement for 1968-69 
was moot by the time of trial, March 13-14, 1969, appellants 
should at least be given first preference for any vacancy in 
their area of certification. Smith, supra, 365 F.2d at 784.
On the issue of damages, the record shows that at the time of 
trial L. R. Jackson was earning some $4500 less than his Wheatley 
Central salary (119). His wife was earning $5600 on a year 
contract compared with $5500 on her Wheatley Central ten-month 
contract (156, 162-63). Since her Wheatley Central contract may

21/ This Court's decision in Freeman v. Gould Special School 
District, 405 F.2d 1153 (8th Cir. 1969) cert, denied 24 L.Ed. 2d 
93 (.1969) , is likewise inapposite since it involved claims of 
denial of due process, not racial discrimination.

28



have given "her more time to earn additional money than 
her new contract, she may have suffered a net loss.
Appellant Mrs. Malissa A. Meeks was earning some $4400 
less than her Wheatley Central salary (119, 144, 189-90). 
Appellant Coleman was earning $600 less than his Wheatley 
Central salary (145). In view of the state of the record, 
appellants should be afforded an opportunity in the 
district court to show damages from the date of completing 
Wheatley Central service, May 23, 1968, to the filing date 
of this Court's opinion and, as to those appellants wishing 
reemployment, damages are also allowable to the date of 
reemployment. Smith, supra, 365 F.2d at 784.

In view of the school district's halting desegre­
gation efforts, its maintenance of segregated education even 
in the formerly all-white school, and its non-reemployment 
of appellants, attorneys' fees are proper and ought to be
awarded by the district court. Rolfe v. County School Board

_ .
of Lincoln County, Tenn., 391 F.2d 77 (6th Cir. 1968); Hill v. 
Franklin County Board of Education, 390 F.2d 583 (6th Cir. 1968).

CONCLUSION
For the foregoing reasons, the district court should

- 29 -
!



I

be reversed. Appellants should be given the opportunity 
for reemployment, awarded damages and attorneys' fees.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER
CONRAD K. HARPER10 Columbus Circle 

Suite 2030New York, N. Y. 10019
JOHN W. WALKER1820 West 13th Street 

Little Rock, Arkansas
GEORGE HOWARD, JR.

329^ Main Street 
Pine Bluff, Arkansas

Attorneys for Appellants

CERTIFICATE OF SERVICE

V

This is to certify that on the 16th day of February, 
1970 the undersigned, one of counsel for appellants, served 
two (2) copies of the foregoing Brief for Appellants upon 
appellees by mailing,them via United States mail, postage 
prepaid to their attorney:

E. J. Butler, Esq.
P. O. Box 830 

f  Forrest Cit̂ r, Arkansas.

Attorney for Appellants

30