Singleton v Vance County BOE Motion and Rehearing Petition

    IN THE

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

NO. 73-2057
NO. 73-2058

CHARLIE J. SINGLETON,
Plaintiff-Appellant

Cross-Appellee
v.

VANCE COUNTY BOARD OF EDUCATION,
Defendant-Appe11ee 

Cross-Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF NORTH CAROLINA

MOTION FOR LEAVE TO FILE PETITION FOR REHEARING AND PETITION 
FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

J. LeVONNE CHAMBERS 
JAMES E. BANNING 
ADAM STEIN 
JAMES E. FERGUSON
CHAMBERS, STEIN, FERGUSON & LANNING 

Suite 730 East Independence Plaza 
951 South Independence Boulevard 
Charlotte, North Carolina 28202

JACK GREENBERG 
NORMAN CHACHKIN

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiff-Appellant
Cross - Appellee



J u l iu s  L eV o n n e  C h a m b e r s

A d a m  St e in

J a m e s  E. F e r o u b o n , II

J a m e s  E. L a n n in o

Ro b e r t  B e lt o n

C H A R L E 3  L .  B EC TO N

F red  A . H ic k s

M e l v in  L . W att

J o n a t h a n  W a l l a s

K a r l  A d k in s

J a m e s  C . F u l l e r , J r .

C H A M B E R S , STEIN . F E R G U S O N  & L A N N IN G
A tto r n eys  a t  La w  

S u it e  7 3 0  E a s t  I n d e p e n d e n c e  P laza  

In d e p e n d e n c e  B o u l e v a r d  a t  M c D o w e l l  S tr eet  

C H A R L O T T E ,  N O R T H  C A R O L I N A  28202 
T e l e p h o n e  ( 7 0 4 )  3 7 5 - 6 4 6 1

May 23, 1974

1 3 7  Ea s t  R o s e m a r y  S tre e t  

C h a p e l  H i l l . N o r t h  C a r o l i n a  2 7 5 1 4  

T e l e p h o n e  ( 9 1 9 )  9 6 7 - 7 0 6 6

I n  C h a p e l  H il l  

A d a m  S t e in  

C h a r le s  L . B ec to n

Honorable William K. Slate, II 
Clerk, United States Court of Appeals 

for the Fourth Circuit 
Tenth & Main Streets 
Richmond, Virginia 23219

Re: Singleton v. Vance County
Board of Education Nos. 
73-2057 and 73-2058

Dear Mr. Slate:

Enclosed are the original and twenty-four copies of Cross- 
Appellee's Motion for Leave to File Petition for Rehearing 
and Petition for Rehearing and suggestion for Rehearing En 
Banc to be filed in connection with the above matter.

By copy of this letter, I am serving a copy of same upon 
counsel for the defendant.

Sincerely yours,

LbVonne Chambers

JLC:j ch 
Enclosures 
cc: Mr. George

Norman
T. Blackburn-w/enc. 
Chachkin-w/enc.



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE
FOURTH CIRCUIT 
No. 73-2057 
No. 73-2058

CHARLIE J. SINGLETON,

Plaintiff - Appellant 
Cross - Appellee

v.
VANCE COUNTY BOARD OF EDUCATION,

Defendant - Appellee 
Cross - Appellant

On Appeal from the United States District Court 
for the Eastern District of North Carolina

MOTION FOR LEAVE TO FILE PETITION FOR REHEARING 
AND PETITION FOR REHEARING AND SUGGESION 

FOR A REHEARING EN BANC

Plaintiff-Appellant-Cross-Appellee respectfully moves the 
court for leave to file a petition for rehearing and suggestion 
for rehearing en banc out of term and respectfully petitions the 
court for a rehearing in this matter eii banc. In support of his



motion and petition, the appellant respectfully shows the court 

the following:
1. On May 8, 1974 a panel entered a per curiam decision re­

manding this case to the district court, holding that the Vance 
County Board of Education is not a "person" subject to juris­
diction under 42 U.S.C. §1983. Since this proceeding had been 
brought under Section 1983 and 28 U.S.C. §1343 (3) and (4), the 
court stated that "a serious jurisdictional question" required 
that the case be remanded to the district court. City of Kenosha. 
v. Bruno, 412 U.S. 507 (1973). The plaintiff was granted leave 
to amend his jurisdictional allegation in the district court and 
the district court was to consider further the jurisdictional 
question. Plaintiff's counsel were unable to complete a petition 
for rehearing because of their involvement in pending cases and 
because of their efforts to review the effect of the Supreme 
Court's decision in City of Kenosha and subsequent cases on 
pending actions for desegregation of schools and challenges 
against the dismissals of teachers and school personnel because 
of race. We respectfully submit that it would expedite dis­
position of this case and would save the court and parties 
substantial time should the court grant leave to make juris­
dictional amendments here as permitted by 28 U.S.C. §1653. 
Additionally, this court did not note the additional juris­
dictional allegations of 42 U.S.C. §1981 which would sustain 
the jurisdiction of the court irrespective of whether the Board 
of Education is a person within the meaning of 42 U.S.C. §1983.



2 . Jurisdiction can be likewise sustained under 28 U.S.C.
§1331. The plaintiff respectfully prays that the court grant 
leave to amend the jurisdictional allegation to show juris­
diction of the court under 28 U.S.C. §1331, City of Kenosha v. 
Bruno, supra., 37 L.ed.2d at 117 and the Thirteenth and Fourth- 
eenth Amendments to the Constitution of the United States and 
28 U.S.C. §1343 (3), Bivens v. Six Unknown Named Agents, 403 
U.S. 388 (1971). Should the court permit the jurisdictional 
amendment as requested and further briefing of the issue it 
would save substantial time for the court and the parties and 
would allow prompt disposition of the proceeding.

3. Leave to suspend the time requirement for petitioning 
for rehearing is authorized under Rules 2 and 26 of the Federal 
Rules of Appellate Procedure.

STATEMENT

This appeal involves the dismissal of a black teacher 
by the Vance County Board of Education. The district court 
found that the teacher was dismissed in violation of rights 
secured by the Fourteenth Amendment and that the teacher was 
entitled to injunctive relief and loss of earnings and expenses. 
The plaintiff appealed the portion of the district court order 
denying an award of lost earnings for the two years that the 
plaintiff was unable to obtain employment. The defendant 
appealed challenging the finding that the plaintiff had been 
deprived of rights secured by the Constitution and the award 
of loss of earnings and counsel fees. All issues have been 
properly briefed and the matter is ripe for final disposition.



-4-

ARGUMENT I

Plaintiff properly alleges jurisdiction under 42 U.S.C. 
§1981. In the complaint filed in this action the plaintiff 
alleged jurisdiction of the court under 42 U.S.C. §1981 as well 
as §1983. Even if it is concluded that the Board is not a 
person within the meaning of 42 U.S.C. §1983 no similar 
problem is presented under 42 U.S.C. §1981. EEOC v. Liberty 
Mutual, 480 F.2d 69 (5th Cir. 1973); Brown v. Gaston County 
Dyeing Machine Company, 457 F.2d 1377 (4th Cir. 1972); Sanders 
v. Dobbs House, Inc., 431 F.2d 1097 (5th Cir. 1970); Penn y . 
Schlesinger, 6 E.P.D. 119041 (5 th Cir. 197 3) ; Henderson v.
Defense Contact Administration Services Regent, ___F.Supp.___,
7 E.P.D. 119058 (S.D.N.Y. 1974).

ARGUMENT II
This court has jurisdiction under 28 U.S.C. §1653 to permit 

amendments of jurisdictional allegations.
In order to expedite disposition of this matter the court 

should permit the plaintiff to amend his jurisdictional alle 
gation to correct any jurisdictional defect. This court has 
jurisdiction under 28 U.S.C. §1653 to permit such amendments. 
Willingham v. Morgan, 395 U.S. 402 (1969); Eklurid v. Mora,
410 F.2d 731 (5th Cir. 1969). The plaintiff respectfully prays 
leave of the court to amend his complaint to set forth juris­
diction under 28 U.S.C. §1331 and the Thirteenth and Fourteenth 
Amendments to the Constitution of the United States. The 
plaintiff desires to amend his complaint as follows:

17 But see attached opinions.



Jurisdiction of the court is invoked 
pursuant to Title 28 U.S.C. §1343(3) and 
28 U.S.C. §1331, this being a suit in 
equity authorized by law under 42 U.S.C.
§1981 and the Thirteenth and Fourteenth 
Amendments to the Constitution of the 
United States to redress the deprivation 
of federally protected rights, privileges 
and ammunities. The rights, privileges 
and ammunities sought to be redressed 
herein are those secured by the Thirteenth 
and Fourteenth Amendments to the Constitution 
of the United States and 42 U.S.C. §1981.

This is also an action arising under the 
Constitution and laws of the United States 
and involving matters in controversy in 
excess of $10,000.00, exclusive of interest 
and costs. The constitutional and statutory 
provisions involved are the Thirteenth 
and Fourteenth Amendments to the Constitution 
of the United States and 42 U.S.C. §1981.
The plaintiff seeks injunctive relief for 
the deprivation of the constitutionally 
protected rights and the loss in earnings 
of $9,777.10 for two years plus counsel 
fees which exceed $10,000.00, exclusive



-6-

of interest and costs.
The facts in this matter, including the actual fees and 

expenses sustained by the plaintiff have already been determined 
by the district court and can easily be reviewed here. The 
amendment requested, we submit, would eliminate any problem 
of jurisdiction and would allow for final disposition of this 
matter on appeal. City of Kenosha v. Bruno, supra; Bivens v.
Six Unknown Named Agents, supra.

CONCLUSION

For the foregoing reasons the plaintiff respectfully prays 
that the court grant him leave to file a petition for rehearing 
in this matter; that the court grant the petition for rehearing 
en banc; that the court permit the amendment to the jurisdictional 
allegation as prayed for; that the court permit the parties 
to file supplemental briefs with respect to the jurisdictional 
issues; that the court sustain jurisdiction to dispose of this 
matter and grant the relief as prayed for by the plaintiff on 

appeal.

ADAM STEIN 
JAMES E. FERGUSON
Chambers, Stein, Ferguson & Lanning 
Suite 730 East Independence Plaza 
951 South Independence Boulevard 
Charlotte, North Carolina 28202



JACK GREENBERG 
NORMAN CHACHKIN

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiff-Appellant
Cross-Appellee

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he has this 
day served a copy of the foregoing Motion for Leave upon 
counsel for the defendant by depositing a copy of same in 
the United States mail, postage prepaid, addressed to:

George T. Blackburn
Perry, Kittrell, Blackburn & Blackburn 
109 Young Street
Henderson, North Carolina 27536

This the 23rd day of May, 1974.

a i n t if f - App e IXSTI t 
Cross-Appellee



3n tfjc

TfOf tfje Cl'i'CUtt

September T erm, 1973 September Session, 1973

No. 73-10S5
A vrora E ducation A ssociation 

E ast, E t  Al .(
Plaintiffs-Appellants, 

vs.
B oard Or E ducation Or A urora 

P ublic S chool D istrict N o. 131 
Or Ivane County, Illinois, 
E t A l .,

' Dcf cndants-Appellees.^

A }) p e a 1 from the 
United States Dis­
trict Court for the 
Northern District 
of Illinois,-Eastern 

- Division
72 C 414

W illiam J. L ynch , 
Judge.

H eard October 17, 1973 — Decided December 20, 1973

Before S w y g e r t , Chief Judge, C u m m i n g s , Circuit Judge, 
and W yzanski*, Senior District Judge.

W yzanski, Senior District Judge. Seven public school 
teachers in Aurora, Kane County, Illinois and the Aurora 
Education Association East, of which they are members, 
arc plaintiffs. The Board of Education of Aurora Public 
School District No. 131 of Kane County, the members of 
that Board, and the Superintendent of Aurora’s school 
system are defendants.

June 9, 1971, during collective bargaining and wage dis­
putes between the teachers represented by the Association
_______ v

* Senior District Judge Charles Edward V/yzanski’, Jr., o£ the District 
pi Massachusetts, is sitting by designation, .

73-10S5 2
and the Board, the Association at one of its meetings 
adopted this resolution:

“ Be- it resolved that the teachers of District #131 
will not return to the classroom in the fall if there is 
at [that] time no satisfactory settlement of the con­
tract between the Board of Education and the AEAE 
and further that an. open meeting be held on Septem­
ber 2 for all teachers to assess the position of the 
AEAE at that time.”

Thereupon the Board, dropping its negotiations for a 
collective bargain with the Association, wrote to each 
teacher a letter offering him or her an individual contract 
for the 1971-1972 school year. Each proposed contract 
provided that the contracting teacher expressly agreed 
that

“ (1) By urging, advocating, recommending, and as­
serting the right to strike by its members prior to 
the vote, and at the meeting held on Jvnm 9, 1971, the 
AEAE no longer qualifies as the organization that, 
under the established School Board Policy (1.30 Arti­
cle II) [is] a bargaining representative of the teach­
ers of the school system, and accordingly will not be 
recognized by the School Board as such agent for the 
teachers.
“ Nothing in this paragraph is intended to prevent 
the Teacher from belonging to the AEAE, but relates 
only to AEAE’s lack of qualification to act as the 
bargaining agent for the Teacher in negotiations with 
the School Board.”

In the foregoing, the citation of School Board Policy 
1.30 Article II is a reference to a provision permitting a 
labor organization to negotiate, on behalf of teachers, with 
the Board, but excluding from all bargaining rights "any 
organization (1) which asserts the right to strike against 
any . . . agency of the government, or to assist or to par­
ticipate in any such. strike, or which imposes a duty or 
obligation to conduct, assist or participate in any_ such 
strike. . . This emphasized exclusory language is the 
focal point on which this case at bar turns.

Many teachers executed the proposed contract, and thus 
became entitled to advantages not offered in the 1970-1971



3 73-1085
contracts. To the seven individual plaintiffs, none of whom 
executed the preferred contracts, the Board offered con­
tinued employment for the new year on the old terms. 
Favic dc mieux, the seven continued at work under the 
disadvantageous ].070-1971 terms, and then brought this 
suit in the District Court.

Belying on the United States Constitution’s Fourteenth 
Amendment’s due process clause and its alleged incorpo­
ration of the principles of the First Amendment, and also 
invoking Section 1 of the Civil Rights Act of 1871, 42 
U.S.C. $'1983, plaintiffs sought (1) a declaration that, as 
here applied, School Board Policy 1.30 was invalid, and 
that plaintiff teachers were entitled to be placed on the 
same salary schedule and like terms as those teachers who 
had executed the proposed 1971-1972 contract, (2) an 
injunction protecting for the future the rights so declared, 
(3) back pay based on the 1971-1972 schedule, (4) $25,000 
actual damages, (5) $25,000 exemplary damages, and (G) 
an attorney’s fees and costs.

Defendants moved to dismiss the complaint on the 
grounds that (1) the complaint failed to state a valid 
claim, (2) plaintiffs’ purported claims -under 42 U.S.C. 
$1983 did not lie against the Board or its members, and 
(3) the Association was not a proper plaintiff to assert 
the alleged claim under 42 U.S.C. $19S3.

On the ground that it failed to slate a valid claim, the 
District Court dismissed the complaint. Relying upon 
Hanover Township Federation of Teachers v. Hanover 
Community School C o r p 457 F.2d 456 (7th Cir. 1972), 
the Court’s opinion held that the Board’s proposed con­
tracts for 1971-1972 and the Board’s refusal to continue 
collective bargaining with the. Association had not violated 
42 U.S.C. $1983 or plaintiffs’ claimed rights under the due 
process clause of the Fourteenth Amendment.

Plaintiffs appeal from the District Court’s dismissal of 
their complaint.

IVc address ourselves to the already quoted exclusory 
provision in School Board Policy 1.30.

National Ass’n. of Letter Carriers v. Blount, 305 F.Supp. 
54G (D.D.C. 1969), appeal dismissed by stipulation, 400

73-1085 4

U.S. 801 (1970) and United Federation of Postal Clerics 
v. Blount, 325 F.Supp. S79 (D.D.C.), aff’ul mem. as to 
issues not here involved, 404 U.S. 802 (1971), invalidated 
virtually identical provisions in a federal statute and a 
federal administrative provision. The cited cases pointed 
out that the language is ambiguous, leaving it unclear 
whether it encompasses the mere philosophical or political 
assertion of the declarant’s belief that he Itas a right to 
strike. A governmental inhibition against the declaration 
of such a purely theoretical position" is a plain case of an 
unconstitutional official interference with freedom of speech 
and is unconstitutional. Ycifes v. United States, 354 U.S. 
293 (1957). "Where a governmental body seeks by an over 
broad regulation to preclude both lawful and unlawful 
speech, the regulation because of its overbreadth is a vio­
lation of guarantees of free speech and is unconstitutional. 
Keyishan v. Board of Regents, 385 U.S. 5S9 (1967).

We wholly agree with the analysis of the three-judge 
district courts in the. opinions already mentioned. The 
Board’s Policy 1.30 as here applied precludes a teacher 
from receiving a full salary and perquisites if, as a mere 
matter of dogma, he holds to the belief that teachers 
should be free to strike against governmental agencies. 
Such throttling of freedom of belief and of speech is con­
trary to that part of the First Amendment which is incor­
porated in Hie Fourteenth Amendment. "We need no recital 
of literary authorities from John Milton to Harold J. 
Laski or of judicial luminaries from Justices Holmes, 
Brandcis, and Cnrdozo to Black, Frankfurter, and llarlan 
(to mention only the dead) to buttress the principle that 
the teacher, like any other citizen, is free to think as he 
likes, and to express those views academically provided 
action is not advocated but merely adumbrated. 42 U.S.C. 
$!9S3 gives a person protection against interference by 
state officials with that fundamental civil liberty.

Since the Board’s Policy 1.30 seeks, inter alia, to pro­
hibit constitutionally permissible free speech, it is because 
of its overbreadth, violative of the due process clause of 
the. Fourteenth Amendment. Keyishan v. Board of Regents, 
supra.

Defendants and the District Court misconceive Hanover 
Township Federation of Teachers v. Hanover Community



73-1085

School Corp., 457 F.2d 45G (7th Cir. 1972). Whatever else 
may he said about that case, it dealt with the question 
whether a public body is under a constitutional duty, apart 
from statute, to bargain collectively with the labor repre­
sentative of its employees. There was no occasion to con­
sider in that court, and the court did not consider, the 
problem of this case, that is. whether a public body may 
interfere with its employees’ freedoms to think and to 
speak—which from the beginning of time have been recog­
nized as wholly different from the freedom to associate 
and to seek to use the strength which comes from union 
in assembly and action. Sec Wvzanski, “ The Open Win­
dow and the Open Door,” 35 Cal. L. Rev. 336 (1947).

Defendants suggest miscellaneous grounds, not relied 
upon by the District Court, which they argue could have 
supported its dismissal of the complaint.

We note that at least one of the points pressed by defen­
dants is unsound. The Hoard is not a municipal corpo­
ration and in that capacity frontside the coverage of 42 
U.S.C. ^1933, as construed in Monroe v. Pape, 365 U.S. 
167 (1961).

There arc other points, such as whether plaintiffs could 
recover the types of damage they claim, which do not go 
to the only issue before this court: that is, whether the 
complaint states a valid cause of action. Wc shall leave 
such points without comment until, if ever, they become 
the basis of a judgment entered by the District Court. 
It is not our function to issue the sort of declaratory .judg­
ment which would tell a District Judge how he should 
decide a hypothetical case which may or may not ulti­
mately be supported by properly presented evidence and 
which may or may not be pressed to a conclusion by the 
litigants before that judge.

After the case was argued before us. and in accordance 
with discussions at our bar, the parties sought to settle 
this case. But no agreement was reached. Instead, uni­
laterally, defendants revised Subsection (1) of Article 11 
of School Board Policy 1.30 to eliminate the language 
“ asserts the right to strike against any local, state or 
federal agency of the government.” This unilateral action 
is not the equivalent of a promise made to an adversary

73-10S5 6
as part_ of a settlement. Nor is it a stipulation made in 
court binding the declarant forever to adhere to a new 
policy based on a public confession of earlier unconstitu­
tional action. Nor does it offer financial recompense to 
those plaintiffs who may have suffered damage caused by 
defendant’s unlawful acts. Under these circumstances, 
plaintiffs have not lost their standing to invoke at least 
equitable relief, Ilccht Co. v. Bowles, 321 U.S. 321 (1944), 
not to mention the continued vitality of their claim for 
monetary compensation, remedial and punitive.

The judgment of the District Court, dismissing the 
complaint, is reversed.

A true Copy:
Teste:

Clerk of the United Stales Court of 
Appeals for the Seventh Circuit.

USCA <1013—Tho Schcfler Press, Inc., Chicago, Illinois—12-20- 73—200



IN TH3 UNITED GTATE3 DISTRICT COURT 
FOR THE DISTRICT CP VYC.'UNG 

-o-

HARBARA COURTNEY, )Plaintiff, )
vs. )

SCHOOL DISTRICT NO. 1, LINCOLN j
COUNTY, WYOMING, and ORSON NAT 12, )
DSLAIN3 ROBERTS, "AY ROBINSON, )
DR. L-AVID KCMINBXY, DR. GERALD ) Do. 5900 Civil
DAVIS, JON DERC.MEDIS, DEED ERICK- 
SON, GEROLD NORRIS and LOYD SIMP­
SON, individually and in their of­
ficial caoacities, and ROBERT G.
NAYLOR, ARLYN WAINWRIGHT and 
WILLIAM L. MONEY, individually, 
and in their official capacities,

Defendants.
Charles E. Graves and Urbigkit, Moriarity and Halle of 

Cheyenne, Wyoming, appearing as attorneys for plaintiff.
E. J. Herschler, Kemr.erer. Wyoming, and Hirst, Applegate 

and Dray, Cheyenne, Wyoming, appearing as attorneys for defend­
ants.

Judge 1s Memorandum
KERR, Judge.
Decided February 28, 1974.

The above matter is an action brought by plaintiff alleg­
ing termination of her employment as a school teacher by the 
defendant school district in a wrongful manner and in violation 
of her civil rights. Defendants, in their individual and of­
ficial capacities, have filed motions for "dismissal or for 
summary Judgment". The school board, in it3 official status, 
has raised the defenses that (1 ) it is not a "person" as defined 
under the Civil Rights Act, 4? U.S.C. 5 1983; and (2) that the 
doctrine of respondeat superior docs not apply to such an ac­
tion. The defendants, in their individual capacities, have moved 
for "dismissal or for summary Judgment" on the grounds (1) that 
no claim for which relief can be granted has been stated by the 
plaintiff; (2) that the statute of limitations, Wyo. Stat.
§ 1-19 (1957), bars this action; and (3) that all actions taken 
or done by the defendants were performed in good faith. These

1.



notions have been filed without supporting affidavits or doc­
uments. Plaintiff has not filed any documents opposing the 

notions.
Plaintiff was hired as an elementary school teacher by the 

defendants for the 3chool year 1570-71. Her contract was renew­
ed for 1971-72. The board did net renew her contract for the 
school year 1972-73 because of conditions it considered detri­

mental to her teaching duties. Plaintiff is divorced and the 
mother of two minor children. Hals situation ha3 caused finan­

cial problems and these problems were the basis for the board's 
non-renewal. In a letter to plaintiff written by the super­
intendent of 3Chool3, it was stated that plaintiff's non-payment 
of bills and the writing of insufficient funds checks were the 
reasons the board Intended not to renew her contract. On this 

point the defendant alleges that plaintiff in fact resigned, 

and therefore, there was technically never any non-renewal on 
its part. Plaintiff denies that her personal financial prob­
lems have affected her classroom performance. In addition, 
plaintiff alleges that a State Department of Education form, 
completed by one of the defendants, Arlyn Wainwright, contained 
false, slanderous and libelous material; and that the defend­
ants, in whole or in part, have conspired to h a m  her reputa­
tion and good name and to prevent her from obtaining other em­
ployment. Defendants deny that the evaluation was malicious or 
libelous, but was rather a true and correct evaluation of 

plaintiff.
Plaintiff, with leave of Court and consent of the defendants, 

has filed an amended complaint. Defendants have not filed their 
amended answer to the amended complaint. The Court in viewing 

the pleadings must construe them so as to do substantial justice, 
Fed. R. Civ. P. 8(f), disregarding all non-prejudicial error.

Fed. R. Civ. P. 6l. By relation back, and for purposes of thi3 

opinion, the Court assumes that defendants would adopt their 

original answer substantially as filed.



The Board in its official capacity has moved for dismissal 
on the grounds it is not a person within the meaning of 42 
U.S.C. § 1533, and that the doctrine of respondeat superior docs 
not apply to such a cause of action, so that as to it no claim 
is stated for which relief may be granted. Treating all motions 
filed by the defendants as notions to dismiss, it is clear that 
the Court must "[Cjonstrue all well-pleaded, material allegations 
in the complaint as being true and admitted for purposes of the 
notion, unless clearly unwarranted. Only when it appears to a 
certainty that no basi3 for relief is present under the stated 
facts to support the claim nay the Court dismiss due to the in­
sufficiency of the claim". Ga3-A-Car, Inc. v. American Petro- 
fina, Inc., 484 P.?d 1102 (10th Cir. 1973); 2 A. Moore Federal
Practice § 12.03 (2d ed. 1968). "A case brought under the Civil 
Rights Act should not be dismissed at the pleading stage unless 
It appears to a certainty that the plaintiff would be entitled 
to no relief under any state of facts which could be proved in 
support of his claim". Harkless v. Sweeny Independent School 
District, 427 F.2d 319 (5th Cir. 1970); cf. Hudson v. Harris,
1178 F.2d 244 (10th Cir. 1973). With these guidelines in mind, 
the Court considers the various grounds raised.

42 U.S.C. § 1983 states, in part, "Every person who, under 
color of any statute, ordinance, regulation, custom, or usage, 
of any State . . . subjects, or causes to be subjected, any 
citizen . . .  to the deprivation of any rights . . . , shall be 
liable to the party injured in an action at law, suit in equity, 
or other proceeding . . .". The basic requirements of a com­
plaint based upon 42 U.S.C. 5 1933 are: "(1) that the conduct
complained of was engaged under color of the stato law, and (2) 
that such conduct deprived the plaintiff of rights, privileges, 
or immunities secured by the Federal Constitution and laws".
Jones v. Hopper, 4i0 F.2d 1323 (10th Cir. 1969). Defendants 
arguo, based on Monroe v. Pape, 365 U.S. 167 (1961), that they 
arc not a "person" within the meaning of the statute, as that

3-



case held that "municipal corporations" are not within the ambit 
of 5 1933. Under Wyoming law, school districts are cra-nted cor­
porate status. Wyo• Stat., 21.1-17 (1273)* Dy law, such dis­
tricts "[M ]ay sue and he sued in the nano by which the dljtrict 
is designated". Wyo. Stat. § 21.1-77(a) (1973). This suscep­
tibility to suit ha3 been recognised by the Wyoming Supreme Court. 
See 0 'Mella v. Sweetwater County School District, 457 P.2d 540 
(1972); Monohan v. Doard of Trustees, 486 P.2d 235 (1971).
Their status is one of a public corporation or quasi-corporation. 
See People cue rel Younger v. County of 21 Dorado, 487 P.2d 1103, 
1199 (1971). An action brought under 42 U.S.C. 5 1933 is to be 
liberally viewed so as to effectuate the rights guaranteed there­
by. Pierson v. Ray, 386 U.S. 54-7 (19^7)• A school district is 
corporate in nature, and distinct from a municipal corporation 
under Wyoming law. Under the new Education Code, Wyo. Stat.
§ 21.1-17 et; seq., school districts have been granted many new 
and sweeping powers and are even allowed to provide through in­
surance coverage for any school board member or district employee 
against whom judgment may be had. These powers are a dramatic 
change from the old law, v/hereunder school boards only had the 
power to sell district property. See Wyo. Stat. § 21-115(7)
(1957) (repealed 19o9). These new powers evidence the clear in­
tention of making school districts more than simply an agent of 
the state, a3 is a municipal corporation. It has been held,
"[P]or purposes of 42 U.S.C. § 1983, the board i3 a 'person'
. . . ". See Harkless v. Sweeny Independent School District, 
above at 323; contra Harvey v. Sadler, 331 F.2d 387 (9th Cir. 
IS0 9).

From the above, it is the opinion of thi3 Court that, for 
purposes of this law, a school board is a ''person" and subject 
to suit. As for the board members individually, it is clear that 
Monroe v. Pape, above, is no bar to such an action for damages.
See also City of Kenosha v. Bruno, 412 U.S. 507 (1973), v.’hereir. 
the Court held that injunctive relief against a municipal officer

4.



may be hud, but not ns against the municipality. See Smith v. 
Losce, ‘ l o j P.2d 33!; (10th Cir. 1973).

Tiie Board asserts that the acts of the superintendent and 
principal cannot be imputed to it, so as to make it vicariously 
liable for such actions. Defendants cite various cases, in­
cluding Salazar v. Dowd, 255 F.Supp. 220 (D.Colo. 1956), as 
support for their position. In Dewell v. Lawson, Ho. 73-1157 
(10th Cir. filed January 7, 197’;), wherein plaintiff had 3ued 
Oklahoma City and the Chief of Police and the lower court had 
dismissed the action as against the Chief of Police, the Court, 
Circuit Judge Barrett, in reversing stated, "The common law de­
fense under state law would not be available to a state officer 
charged in a Federal Civil Rights cause of action. Thus the 
doctrine of respondeat superior cognizable under Oklahoma law 
is not a defense available to Chief Lawson in this federal cause 
of action. Our holding in this respect rejected (sic) the op­
posite holdings of . . ., Salazar v. Dowd, . . . and other like 
decisions".

From the foregoing it follows that the doctrine of re­
spondeat superior is not a bar to this action, and the board be
may/vicarlously liable for the actions of its agents.

The board members, individually, have asserted that the 
action is barred as their actions were taken in good faith.
Be that as it may, it is clear that good faith is not an abso­
lute bar to this action, but only a defense to be proven by the 
board at trial. See Smith v. Losee and Dowell v, Lawson, supra. 
Cnee plaintiff has proven a prlma facie case, it will be the bur­
den of the defendants to prove good faith or other justification 
for their actions. See Martin v. Duffle, i;63 F.2d h o k  (10th 
Cir. 1972). In this respect, it is clear that a claim for which 
relief might be granted has been stated a3 against the board, 
its individual members and agents.

Two cf the defendants, the principal and the superintendent 
of the district, have raised the defense of the statute of lin-

5.



ltatior.3 on the theory that, as against then, this is an action 
for slander and libel. They argue that such an action is bar­
red by Wyo. Stat. § 1-ig (1957) which provides that such ac­
tions be brought within one year. Fron the complaint and the 
amended complaint, such a conclusion is not easily reached. To 
the contrary, it is clear that the actions of these defendants 
are intertwined with those of their co-defendants to an inex­
plicable degree. This is an instance where, due to the actions 
of these defendants, the "reputation, honor, integrity or good 
name" of plaintiff may be at stake. Board of Regents v. Roth, 
^08 U.S. 56'l (1971). In these circumstances, the claim for re­
lief should not be dismissed unless it appeai'3 beyond all doubt 
that plaintiff can prove no set of facts supporting the claim 
for relief. See Hudson v. Harris, 7̂8 F.2d 2^U (10th Cir. 
1973).

For the reasons stated, the motions for "summary judgment 
or for dismissal" should be overruled.

6.



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA 

OCALA DIVISION

ROBERT BAIRD, Plaintiff,

NO. 74-1-Civ-Oc

JOE STRICKLAND, individually, and 
as Superintendent of the Sumter 
County Public School System; THE 
SCHOOL BOARD OF SUMTER COUNTY, 
FLORIDA, ERWIN BRYAN, JR., JOHN W. 
WALLACE, C. AUBREY CARUTHERS, JOE 
D. MERRITT and SHERMAN G. WILSON, 
individually, and as members of 
the School Board of Sumter County, 
Florida,

R E C E I V E D  

MAR 2574

f>cA Ci7iC£ CF 
GINERAL C0U,NS;L

Defendants.

ORDER AND INJUNCTION

This is an action by a high school teacher alleging that 

his dismissal from employment by the school board of Sumter County, 

Florida, for his personal conduct at two school functions violated 

his rights secured by the First and Fourteenth Amendments to the 

United States Constitution. He seeks reinstatement, back pay and 

attorney’s fees. Jurisdiction is premised on 28 U.S.C. §§ 1331,

1343(3) and 42 U.S.C. § 1903.

Plaintiff claims the Florida statute under which he was 

dismissed is void for vagueness, and further claims he was denied 

due process of lav/ when he did not receive a hearing before a fair 

and impartial tribunal. The Court need not reach the question of 

whether Florida Statutes §231.36(6) is void for vagueness because 

of the disposition made of plaintiff's other claim for relief.

On November 3, 1973 , Joseph D. Merritt, a member of the 

Sumter County School Board, telephoned Joseph R. Strickland, Super­

intendent of Schools, Sumter County, Florida, to report that he had

RECEIVED
M. a R 2 0 1974

• • t mV OFf ICE CF



been told by certain adults who were in attendance at a school foot­

ball game and subsequent school dance the previous evening that they 

had heard plaintiff make obscene statements in the presence of others 

On November 5, 1973, plaintiff was suspended from the classroom with 

pay by the superintendent, pursuant to Florida Statutes § 230. 33(7) (h) 

The next day defendants met as the school board and suspended plain­

tiff with pay, pursuant to the provisions of Florida Statutes 

§ 230.23 (5) (g), until charges relating to his conduct of November 5th 

could be prepared. Joseph Merritt participated in this school board 

hearing and voted to suspend plaintiff.

On November 20, 1973, after formal charges had been served 

on plaintiff, the school board voted to suspend him without pay until 

a formal hearing could be held on December 5, 1973. Joseph Merritt 

attended and participated in this November 20th meeting, and cast his 

vote in favor of suspending plaintiff without pay. At the December 

5th school board hearing the board heard and ruled on plaintiff's 

motions (1) to dismiss the charges as violating plaintiff's First 

Amendment rights, (2) to dismiss the charges for insufficiency of 

notice, and (3) for discovery. Joseph Merritt attended and partici­

pated in this meeting and voted on plaintiff's motions.

On December 17, 1973, the school board, after hearing, 

voted to dismiss the plaintiff from employment. Joseph Merritt, at 

the urging of counsel for plaintiff, disqualified himself from par­

ticipating in this hearing and from voting on the dismissal. Counsel 

for plaintiff had previously filed a motion for disqualification of 

the entire school board and had requested the appointment of a hear­

ing examiner, pursuant to Florida Statutes § 120.09(1), to hear 

plaintiff's case. These requests were denied.

Prior to the commencement of the December 17th hearing, 

and before public determination to terminate plaintiff had been

-2 -



reached, plaintiff was paid all earned wages and benefits.

Plaintiff contends (1) that although Merritt disqualifieu- 

himself from participating in the December 17th meeting at which 

plaintiff was dismissed, he should have done so before participating 

in the meetings of November 6th, November 20th and December 5, 1973, 

(2) that Merritt's participation in these three earlier meetings 

tainted the appearance of impartiality of the other defendants who 

composed the remainder of the school board, and they all should have 

disqualified themselves from hearing plaintiff's case, (3) that the 

defendants had prejudged plaintiff’s case in advance of the December 

17th public hearing, and (4) that plaintiff was, therefore, denied 

a fair hearing before an unprejudiced and unbiased tribunal.

It is plaintiff's specific contention that, since Merritt 

was the person who made the first complaint of plaintiff's action, 

he might be called as a witness at plaintiff's hearing and that he 

had firsthand information on the evolution of the case in advance of 

the hearing. Plaintiff claims Merritt's firsthand knowledge, 

coupled with his participation in the three earlier school board 

hearings involving plaintiff, acted to destroy the appearance of im­

partiality of the entire tribunal in derogation of his rights to a 

fair hearing guaranteed by the due process clause of the Fourteenth 

Amendment. Furthermore, he claims to have been denied a fair hear­

ing by the defendants' paying his wages and benefits before he was 

granted a public hearing and dismissed. This action is alleged to 

have indicated a predisposition on the part of the defendants as 

members of the school board to dismiss plaintiff from further employ­

ment before he was afforded an opportunity to present his case at 

the public hearing.

Tne Court holds that Merritt should have disqualified him­

self from any participation in plaintiff's case because his personal

-3-



involvement in filing the complaint against plaintiff, coupled with 

his participation in the three earlier school board meetings, gave . 

the appearance of depriving plaintiff of a fair hearing before an 

unbiased tribunal.

Rudin-.ental due process in school administrative proceed­

ings is guaranteed in cases involving the suspension of students, 

Dixon v. Alabama State Bd. of Ed., 294 F. 2d 150 (5th Cir. 1961), 

and in cases involving termination of school teachers. Ferguson v. 

Thomas, 430 F. 2d 852 (5th Cir. 1970). In Ferguson the Court of 

Appeals for the Fifth Circuit said.

Within the matrix of the particular circumstances 
present when a teacher who is to be terminated 
for cause opposes his termination, minimum pro­
cedural due process requires that:

(a) ....

(b) . . . .

(c) [the teacher be provided a hearing]

(d) that hearing should be before a tribu- 
• nal that....has an apparent impartiality toward

_ the charges. (Note the dictum in Pickering v.
Board of Education, 391 U. S. 563, 88 S. Ct. 1731,
20 L. Ed. 2d 811 (1968) at 391 U. S. 578, n. 2,
88 S. Ct. 1731).

430 F. 2d 852 at 856.

The requirement of impartiality of a tribunal sitting to 

determine whether or not to dismiss or penalize school teachers for 

alleged wrongs lias been recognized by the courts of the State of 

Florida. State ex rel. Allen v. Board of Public Instruction. 214 

So. 2d 7 (Fla. Dist. Ct. App. 1968). Furthermore, the fact that the 

impartiality of less than a majority of the tribunal is challenged 

does not change the requirements of disqualification. State ex rel. 

Allen v. Board of Public Instruction, supra, cf. Esteban _v. Central 

Missouri Stare College, 277 F. Supp. 649 (W.D. Mo. 1967).

Whether or not Merrittwas actually biased in his partici­



pation in the three earlier meetings of the school board, and the 

Court is disposed to believe that he was not, and whether or not 

Merritt's participation therein acted to taint the impartiality of 

the other defendants, a quasi-judicial body has a strict duty to 

avoid even the appearance of impropriety and partiality. 1erguscn 

v. Thomas, -130 F. 2d 052,. 056 (5th Cir. 1970). Therefore, Merritt 

had a duty to disqualify himself from participation in any school 

board meetings involving plaintiff's case. Furthermore, once Merritt 

participated in those three earlier meetings the other defendants had 

a duty to disqualify themselves from judging plaintiff's case.

The Court further holds that the action of defendants in 

paying plaintiff his accrued wages and benefits before the December 

17th school board meeting, at which he was afforded a hearing and 

dismissed, indicates they had prejudged the case and predetermined 

to dismiss plaintiff from employment. This act of prejudgment, which 

suggests a lack of openmindedness by defendants, constitutes a denial 

of due process of law. Prejudgment of a case by a judicial or quasi­

judicial body in addition to denying due process of law mandates 

granting plaintiff relief from that judgment. Gibson v. Berrvhill,

_____U. S._____, 36 L. Ed. 2d 488 (1973); Ferguson v. Thomas, 430 F.

2d 852, 861 (5th Cir. 1970)(dissent of Judge Thornberry).

Once having determined that plaintiff has been denied pro­

cedural due process of law, and having decided that he should pre­

vail, the Court must fashion the relief which is most appropriate 

under the circumstances of the case. Both the interests of plaintiff 

and of the students and parents of Sumter County must be considered.

Plaintiff's rights to a fair hearing shall be effectuated 

by requiring defendants, in their official capacity, to afford the 

plaintiff a hearing on the charges served upon him November 15, 1973.

-5-



If a procedural deficit appears, the matter should, 
at that point, be remanded to the institution for 
its compliance with minimum federal or supplemen­
tary academically created standards.

Ferguson v. Thomas, 430 F. 2d 852, 858 (5th Cir. 1970).

Pursuant to the provisions of Florida Statutes § 120.09(1), 

defendants shall disqualify themselves from hearing plaintiff's case 

and shall request the appointment of a hearing examiner to do so. 

Furthermore, the defendants, in their official capacity, shall be re­

quired to grant plaintiff the back pay ho has lost from the time o. 

the improper suspension without pay on November 20, 1973, until such 

time as he has been afforded a proper hearing. The defendants shall 

not be required to reinstate plaintiff into the classroom, and the 

November 6th suspension from teaching with pay shall remain in full 

force and effect pending the aforesaid hearing.

The Court in an order entered herein February 8, 1974, dis- 

'massed the School Board of Sumter County as a party defendant because 

it is not a "person” within the meaning of 42 U.S.C. § 1983, and is 

in the nature of a municipality. City of Kenosha v. Bruno, 412 U. S. 

507, 37 L. Ed. 2d 309 (1973); Monroe v. Pape, 365 U. S. 167 (1961); 

Campbell v. Masur, 486 F. 2d 554 (5th Cir. 1973).

Nevertheless, defendants as individuals and in their official 

capacities are "persons" within the meaning of 42 U.S.C. § 1983, and 

are, therefore, subject to liability for violating Section 1983. Al­

though the Supreme Court in City of Kenosha v- Bruno, supra, and the 

Fifth Circuit in Campbell v. Masur, supra, overruled the portion of 

Harmless v. Sweeney Independent School District, 427 F. 2d 319 (5th 

Cir. 1970), which held a school district to be a "person". Part II 

of Harkless has never been overruled. That portion of the opinion 

clearly holds that school officials are "persons" and can be compelled 

to discharge their official duties by means of a Section 1983 action.

-6 -



This order shall constitute the Court's findings of fact 

and conclusions of law. Therefore, it is

ORDERED AMD ADJUDGED:

That defendants JOE STRICKLAND, ERWIN BRYAN, JR., JOHN W. 

WALLACE C. AUBREY CARUTHERS, JOE D. MERRITT and SHERMAN G. WILSON, 

individually, and in their official capacities as members of the 

School Board of Sumter County, Florida, are enjoined from failing 

to provide plaintiff with a hearing as soon as practicable on the 

charges served upon him on November 16, 1973; and, it is further

ORDERED AND ADJUDGED:

That, pursuant to the provisions of Florida Statutes § 

120.09(1), defendants, individually, and in their official capacitie 

as members of the School Board of Sumter County, Florida, are en­

joined from failing to disqualify themselves from hearing plaintiff 

case and shall request the appointment of a hearing examiner to do 

so; and, it is further

ORDERED AND ADJUDGED:

That defendants, individually, and in their official capa­

cities as members of the school board of Sumter County, Florida, are 

enjoined from failing to allocate moneys for and pay moneys to plain 

tiff for the back pay he has lost from the time of his improper sus­

pension without pay on November 20, 1973, until such time as he has 

been afforded the aforesaid hearing; and, it is further

ORDERED AND ADJUDGED:

That plaintiff's suspension from teaching with pay, im­

posed on November 6, 1973, remains in full force and effect pending 

the outcome of the aforesaid hearing.

DONE AND ORDERED at Jacksonville, Florida, this 18th day 

of March, 1974.

Original signed: 
CHARLES R. SCOTT



V