Fayette County, TN Board of Education v. Walker Brief in Opposition to Certiorari

    Bupvtaw (Hanrt of %  Infill BtuUs
O ctober T erm , 1971 

No. 71-1392

In th e

C o u n ty  B oard oe E ducation  of 
F ayette  C o u n ty , T ennessee ,

—vs.—

M rs. M able C. W alker , et al.

Petitioner,

BRIEF IN OPPOSITION TO CERTIORARI

A von  N. W illiam s , J r .
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

J ack  G reenberg 
J am es M. N abrit , III 
N orman  J . C h a c h k in  
S ylvia  D rew

10 Columbus Circle
New York, New York 10019

Attorneys for Respondents



I N D E X

Opinions Below ..... ..................................... .........................  1

Statement ..................................................................    1

R easons W h y  the  W rit  S h ould  B e  D enied

I. The Decision Below Does Not Rest Upon Any 
Notion Of Procedural Due Process Rights Guar­
anteed Public Schoolteachers But Upon Findings 
Of Racial Discrimination ........................... ............  7

II. The Courts Below Concluded That Respondents 
Had Been Discharged As A  Result Of Racial Dis­
crimination By Applying Well Settled Legal 
Principles To The F a cts ............ ..........................  8

III. The Rulings Below That The School Board Was 
Not Entitled To Demand A  Jury Trial Are 
Plainly Right And Do Not Conflict With Appli­
cable Decisions Of This Court ...............................  11

C onclusion  ...............................    14

T able of A uthorities

Cases:

Beacon Theatres, Inc. v. Westover, 359 U.S. 500 
(1959)...................................... ................................ ........ 11,12

Brady v. Trans World Airlines, Inc., 196 F. Supp. 504 
(D. Del. 1961) .................................. ..... ......... ........ . 12

Brown v. Board of Edue., 349 U.S. 294 (1955) ...............  8

Carter v. West Feliciana Parish School Bd., 432 F.2d 
875 (5th Cir. 1970) ............... ................... .......................  3n

PAGE



XI

Clark v. Board of Educ. of Little Rock, 369 F.2d 736

PAGE

(8th Cir. 1966) ............. ........... -..... .. .............................  10
Conrocode v. Ohio Bell Tel. Co., 11 F.R.D. 303 (N.D.

Ohio 1951) ................................ -.......... -............................  13

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962) ........... 11,12

Harkless v. Sweeny Independent School Dist., 427 F.2d 
319 (5th Cir. 1970), cert, denied, 400 U.S. 991 (1971) 

Hatton v. County Bd. of Educ., 422 F.2d 457 (6th Cir.
1970) ..................... ..... ................. -....................................

Jackson v. Wheatley School Dist. No. 28, 430 F.2d 1359
(8th Cir. 1970) ....... ............. ......... -............... ....... .... --9 , 9n

Johnson v. Georgia Highway Express, Inc., 417 F.2d 
1122 (5th Cir. 1969) ......................................................  13

King y . Laborers Int’l Union, 443 F.2d 273 (6th Cir.
1971) ......... ......... - ........ -.......... ........................................  13

McGraw v. United Ass’n of Journeymen, etc., 341 F.2d
705 (6th Cir. 1965) ........................................................ .. 13

Mitchell v. DeMario Jewelry, 361 U.S. 288 (1960) .......  12

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1
(1937) ............. ............................. ..................................11,12

Nesbit v. Statesville City Bd. of Educ., 318 F.2d 1040
(4th Cir. 1969) ..................................—..........................  3n

North Carolina Teachers Ass’n v. Asheboro City Bd. 
of Educ,, 393 F.2d 736 (4th Cir. 1968)  .................8n, 10

Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971) ..............~ 7n

Perry v. Sindermann, 430 F.2d 939 (5th Cir. 1970), cert, 
granted, 403 U.S. 917 (1971), No. 70-36

11

9n

8n



I l l

Porter v. Warner Co., 328 U.S. 395 (1946) ............ ..........  12

Eolfe v. Comity Bd. of Ethic., 391 F.2d 77 (6th Cir.
1968) ...... ................ ....... - ............ ........................ ........... 9,10

Ross v. Bernhard, 396 U.S. 531 (1970) .............. ............  12n

Singleton v. Jackson Municipal Separate School Dist.,
419 F.2d 1211 (5th Cir. 1969), cert, denied, 396 U.S.
1032 (1970), rev’d in part on other grounds sub noin. 
Carter v. West Feliciana Parish School Bd., 396
U.S. 290 (1970) ...... ........... .............. ......... ........... 3n, 8n, 10

Smith v. Concorida Parish School Bd., 445 F.2d 285
(5th Cir. 1971) ............ ..... .......... ................. ........ ........  10

Smith y . Hampton Training- School, 360 F.2d 577 (4th
Cir. 1966) .......................................................................... 12

Sparks v. Griffin, No. 71-2747 (5th Cir., May 16, 1972) 9
State College Bd. of Regents v. Roth, 446 F.2d 806 

(7th Cir.), cert, granted, 404 U.S. 909 (1971), No.
71-162 ..... ................. - ..... -.................... - ....... .. .............. -  8n

Swann v. Charlotte-Mecklenburg Bd. of Educ,, 402 U.S.
1 (1971) ........................................................................-............-............3n, 8

United States v. Louisiana, 339 U.S. 699 (1950) ...... —  11
United States v. Montgomery County Bd. of Educ., 395

U.S. 225 (1969) .............. ................... -...... - .......... ----- 3n
United States v. Texas Education Agency, No. 71-3135 

(5th Cir., May 10, 1972) ................................. .............. — 10

PAGE

Other Authorities:

1972 U.S. Code Cong. & Adm. News 814 13



I n  th e

Httprem? (tort of % United Btuus
O ctober T erm , 1971 

No. 71-1392

C o u nty  B oard oe E ducation  of 
F ayette  Co u n ty , T ennessee,

■—vs.
Petitioner,

M rs. M able C. W alker , et al.

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

Since the filing of tlxe Petition for a Writ of Certiorari, 
the opinion of the United States Court of Appeals for the 
Sixth Circuit and the dissenting opinion of Judge Weick 
have been reported at 455 F.2d 199, 204.

Statement

Respondents herein are black teachers formerly em­
ployed by the County Board of Education of Fayette 
County, Tennessee, who intervened in a lawsuit to desegre­
gate the county’s public schools after the Board failed to 
rehire them following implementation of a desegregation 
plan ordered by a United States District Court. Seven of 
the thirteen respondents had taught in the county public



2

schools for periods between 18 and 35 years, prior to 1970, 
and had been treated by the Fayette County school au­
thorities as having “tenure.”1 Each respondent was not 
rehired for the 1970-71 school year following the Superin­
tendent’s recommendation and action thereon by the school 
board (App. 123a, 388a), which had never itself adopted 
any criteria to be applied in case of the sort of system- 
wide faculty reduction occasioned after the desegregation 
plan was implemented (App. 113a, 350a).

The Board sets out (Petition, pp. 4-5) the “ factors” that 
it claims were considered in determining wdiich faculty 
members would be terminated.2 However, the evidence

1 Tennessee law provides that public school teachers who have 
college degrees attain full tenure status upon being offered a con­
tract by a school system for a fourth consecutive year. Teachers 
without degrees who have worked four years are afforded “limited 
tenure” so long as they have taken twelve credits toward a degree 
within the preceding three years (App. 119a [citations to appendix 
in 6th Cir. No. 71-1206 are given in this form throughout this 
B rief]). Prior to 1969, the Fayette County school system had mis­
applied the state teacher tenure law by considering all teachers 
who had been offered contracts for four years or more to be tenured 
(App. 207a-08a, 327a, 349a). For this reason, those respondents 
who had served as teachers in the Fayette County public school 
system for over a decade (App. 204a-60a) were under the impres­
sion, prior to their termination, that they had tenure (App. 314a). 
They had never been notified by the Superintendent of Schools 
that they were actually not tenured nor that they could become 
tenured by complying with the educational requirements of the 
law (App. 350a). See Appendix to Petition [Ptn. App.] A-20; 
A-14, 455 F.2d at 201.

2 The 1969 district court order directing implementation of a 
desegregation plan had also required assignment of faculty mem­
bers to each school on a basis substantially in accord with the 
system-wide black-to-white faculty ratio. See United States v. 
Montgomery County Bd. of Educ., 395 U.S. 225 (1969) ; Singleton 
v. Jackson Municipal Separate School JDist., 419 F.2d 1211 (5th 
Cir. 1969), rev’d in part on other grounds sub nom. Carter v. West 
Feliciana Parish School Bd., 396 U.S. 290 (1970); Nesbit v. States­
ville City Bd. of Educ., 318 F.2d 1040 (4th Cir. 1969) ; Swann v.



3

revealed, and the district court found, that no objective 
comparison of these or any other characteristics among 
Fayette County teachers was ever made:

[T]he plaintiffs should have been judged by definite 
objective standards with all other non-tenure teachers 
within the system. The Court finds that there was not 
a comparison as contemplated. This is particularly so 
in the cases in which the Board’s reliance was based 
primarily upon the comments of the principal who 
was certainly not familiar with all of the non-tenure 
teachers in the system. (Ptn. App. A-24).

The Superintendent did not consider all non-tenure teachers 
in arriving at his recommendations for dismissal but only 
those about whom, some time in the past, some kind of 
complaint had been made (whether or not that complaint 
was considered serious enough to warrant dismissal at 
the time it was lodged), and those he considered “poor 
teachers” (App. 177a-178a).

Charlotte-Mecklenburg Bd. of Edue., 402 U.S. 1, 19-20 (1971). 
Prior to the start of desegregation, 60% of all Fayette County 
teachers were black; in selecting those to be dismissed because of 
the overall reduction in force, the Superintendent and board re­
garded this ratio as immutable and sought to maintain it by insur­
ing that at least 60% of the terminated teachers were black (App. 
124a, 219a, 515a). Compare Carter v. West Feliciana Parish School 
Bd., 432 F.2d 875, 879 (5th Cir. 1970). Because only 42% of the 
non-tenure teachers in the county were black, this initial selection 
criterion burdened black teachers far more harshly than whites. 
Of course, it is impossible to know whether black teachers or white 
teachers were ultimately favored in the selection of those to be 
terminated since, as the District Court and the Court of Appeals 
found, no process of objective comparison was ever undertaken 
and one cannot contrast the teachers actually terminated with those 
who should, on the basis of their merit, have been released. In any 
event, it seems likely that, but for this misconstruction of the 
court’s decree, all of the terminated teachers would have been black.



4

Even this limited sample was not evaluated in a sys­
tematic and objective manner. For one thing, the Super­
intendent did not have before him the same kinds of in­
formation about all of the teachers. Rating sheets re­
quested by him in September, 1969 (App. 148a) had not 
been prepared for all teachers (App. 234a). He made no 
attempt to assess the reports or past complaints he had 
from various principals in light of the principals’ differing 
qualifications (App. 179a) nor to investigate the substance 
or significance of the complaints, nor to permit the teach­
ers to explain or rebut such complaints; thus, he charac­
terized the reasons for dismissal of some of the respon­
dents as “not very substantial” in his trial testimony 
(App. 211a).

Finally, when the Superintendent made his selection, he 
was unable to recall how each non-tenure teacher had been 
rated by his principal or supervisor (App. 183a), and per­
sonnel files or rating sheets were not brought before the 
school board (App. 152a). The district court concluded:

The Court further finds that the standards employed 
by the defendants were not “ definite objective stan­
dards” contemplated. The variety of the criteria used 
was not objective but permitted the Superintendent 
and the Board to apply, in secret, standards susceptible 
to the Superintendent’s and the Board’s whim. (Ptn. 
A pp. A -2 4 )8 3

3 As the District Court stated from the bench:
[I] t is very apparent that the whole system of choosing who 
was not to be rehired or dismissed centered on this man’s 
[Superintendent Bagwell’s] mind or state of mind. He was 
the whole objective standard, according to the defendants. 
(App. 265a-266a).



5

The evidence further established that after Respondents’ 
employment had been terminated but prior to the beginning 
of the 1970-71 school year, unexpected resignations created 
vacancies for teachers in Fayette County, many in the 
various fields of Respondents’ state certification (A. 142a, 
211a, 217a). Yet the Board made no effort to reemploy 
Respondents, whose service (up until the process of de­
segregation resulted in an overall faculty reduction) had 
been sufficiently satisfactory to result in contract renewal; 
instead, teachers new to the school system were sought and 
hired (A. 142a).

Following presentation of evidence by the Board with 
respect to the actual selection process and the information 
available to the Board and Superintendent at that time— 
and cross-examination of the Superintendent and other 
Board employees on behalf of Respondents—the District 
Court ruled that it would accept further evidence on that 
issue alone but would not permit the introduction of testi­
mony about Respondents’ qualifications which had not been 
available to the Superintendent or the Board at the time 
the decision to terminate Respondents’ employment was 
made.

The Board maintained unsucessfully in the District Court 
and the Court of Appeals that its selection process had been 
impartial. The District Court ruled against these conten­
tions—but not, as the Board suggests (Ptn., p. 6), because 
competency and teaching ability are impermissible criteria 
of selection. Rather, the Court found that the Board had 
not objectively compared its entire faculty on the basis of 
such criteria, both because comparisons were made only 
among a selective sample and because the method of com­
parison depended upon the unchecked discretion of the 
Superintendent.



6

The District Court also held, with respect to those of the 
Respondents who had long periods of service and whose 
terminations were sought to be justified by the Superinten­
dent on the basis of incidents or complaints wdiich had come 
to his attention in prior years, that the due process clause 
of the Fourteenth Amendment prohibited their discharge 
without any opportunity to explain or rebut such charges 
and complaints. Finally, in order to prevent a recurrence 
of the events which led to this lawsuit, the District Court 
ordered future faculty reductions occasioned by desegrega­
tion to be governed by comparison of state certification, de­
grees and college work, and experience alone; other dis­
missals based on specific incidents or complaints unrelated 
to these criteria, the court held, would have to be processed 
in accordance with Tennessee law :

Such matters should be treated as dismissals for cause, 
the reasons should be given to the teacher, and the 
teacher should be notified that he, or she, is entitled to 
a hearing on the accusations against her. (Ptn. App. 
A-25).

The Court of Appeals affirmed, Judge Weick dissenting. 
The majority agreed with the District Court’s finding that 
Respondents had been discharged in a racially discrimina­
tory manner, and not on the basis of an adequate or fair 
comparison of their abilities and qualifications with other 
teachers’. The majority of the Court of Appeals also 
held, without mentioning the due process clause, that 
Respondents were constitutionally protected against ra­
cially discriminatory discharge from their employment; and 
finally, the majority below agreed with the District Court 
that the Seventh Amendment did not guarantee the Board 
a jury trial in this action for redress of constitutional 
rights pursuant to 42 U.S.C. A 983.



7

REASONS WHY THE W RIT SHOULD BE DENIED

I.
The Decision Below Does Not Rest Upon Any Notion 

O f Procedural D ee Process Rights Guaranteed Public 
Schoolteachers But Upon Findings O f Racial Discrim­
ination.

The Board miscasts the holding of the Court of Appeals 
when it suggests that this Court should review this case 
to consider whether or not the due process clause of the 
Fourteenth Amendment guarantees public school teachers 
notice of charges and a hearing before a school board may 
decide not to rehire them.

Contrary to the assertions of the Petition, the Respon­
dents were ordered reinstated because the Court of Ap­
peals agreed with the District Court that the termination 
of their employment was racially discriminatory; indeed, 
the law is settled in the Sixth Circuit that schoolteachers 
have no general due process rights, as the majority of the 
court below recognized.4 5

Thus there is no conflict among circuits on the issues 
actually decided below,6 nor will this case be affected by

4 “ The facts of this case distinguish it from Orr v. Trinter, 444 
F.2d 128 (6th Cir. 1971), where this court held that a probationary 
teacher of one year’s service did not have a due process right to a 
hearing and a statement of reasons for nonrehire. In Orr, however, 
the court clearly recognized that race discrimination was a consti­
tutionally impermissible reason for failure to rehire even a one-year 
probationary employee. Orr v. Trinter, supra at 134.” (455 F.2d 
at 201, Ptn. App. A-4).

5 Orr v. Trinter, supra n.4, does conflict with decisions of the
First, Fifth and Seventh Circuits, and a petition for certiorari to 
review Orr is presently pending in this Court, No. 71-819.



8

the determination of cases already before this Court to 
which reference was made in the Petition.6 This case is 
therefore an entirely inappropriate vehicle for the inquiry 
suggested by the Board in its Petition.

II.
The Courts Below Concluded That Respondents Had 

Been Discharged As A Result O f Racial Discrimination 
By Applying Well Settled Legal Principles To The Facts.

Again contrary to the assertions of the Petition, the 
Court of Appeals did not forbid school boards from con­
sidering the competence or teaching ability of its faculty 
in determining whether or not to rehire individual teachers; 
instead, the court applied to the facts of this case, settled 
law developed by the federal courts since Brown v. Board 
of Educ., 349 U.S. 294 (1955) for the purpose of insuring 
that reductions in force brought about by desegregation 
are not carried out in a racially discriminatory fashion.

Consistent with the policy announced in Brown of relying 
upon the lower federal judiciary to elucidate and remedy 
the many difficult problems associated with the process 
of school desegregation, see Swann v. Charlofte-Mecklen- 
burg Bd. of Educ., 402 U.S. 1, 6, 14 (1971), a consistent 
body of legal principles has been developed and applied 
to situations of faculty reduction occasioned by desegrega­
tion.7 The general rule is that where the teaching staff

6 Perry v. Sindermann, No. 70-36, cert, granted, 403 U.S. 917 
(1971), decision below, 430 F.2d 939 (5th Cir. 1970); State College 
Bd. of Regents v. Roth, No. 71-162, cert, granted, 404 U.S. 909 
(1971), decision below, 446 F.2d 806 (7th Cir. 1971).

7 E.g., Singleton v. Jackson Municipal Separate School Dist., 419 
F.2d 1211 (5th Cir. 1969), cert, denied, 396 U.S. 1032 (1970), rev’d 
in part on other grounds sub nom. Carter v. West Feliciana Parish 
School Bd., 396 U.S. 290 (1970); North Carolina Teachers Ass’n v.



9

must be reduced because of operating economies or other 
factors connected with desegregation, those to be dis­
charged must be selected by comparing all teachers ac­
cording to definite and objective criteria. See Rolfe v. 
County Bd, of Educ., 391 F.2d 77 (6th Cir. 1968). A  corol­
lary principle is that the process of comparison must 
examine the performance of all teachers in each category 
as to which the performance of any is considered. Thus, 
for example, reports of tardiness are insufficient justifica­
tion for selecting a particular teacher to be discharged 
during a reduction in force where the punctuality and at­
tendance records of all teachers are not compared.

It is for this reason that past pecadilloes or inade­
quacies, which wTere never before viewed as warranting 
termination, may not, standing alone, justify termination 
of black teachers in connection with desegregation-related 
reductions in force. Other Courts of Appeals have also 
specifically applied this principle. E.g., Jackson v. Wheat- 
ley School Dist. No. 28, supra, 430 F.2d at 1363 ;8 Sparks 
v. Griffin, No. 71-2747 (5th Cir., May 16, 1972) (slip op. at 
p. 19).9

Asheboro City Bd. of Educ., 393 F.2d 736 (4th Cir. 1968) ; Jackson 
v. Wheatley School Dist. No. 28, 430 F.2d 1359 (8th Cir, 1970) ; 
Hatton v. County Bd. of Educ., 422 F.2d 457 (6th Cir. 1970).

8 “Defendants offered some vague and inconclusive evidence to 
the effect that the school officials had over the years received some 
complaints . . . Bach of these plaintiffs had valid certificates to 
teach and served in such capacity in [the black school] for eleven 
years. It would appear that if the complaints were not such as to 
require action against the plaintiffs while they were serving in the 
Negro school, the complaints would not constitute a valid basis for 
refusal of employment in the integrated school. Moreover, plaintiffs 
were not advised that [the complaints] were a factor in their release 
and they were given no opportunity to meet such charge.”

9 “ . . . We reject as clearly erroneous the district court’s findings 
that the district’s board voted not to renew the contracts of the 
plaintiffs-appellants for the 1968-1969 academic year on the basis 
of non-racial, objective, and reasonable criteria. It is undisputed



1 0

Likewise, courts have limited to designated criteria, the 
factors which school boards may in the future consider 
whenever reductions in force are necessitated by desegre­
gation. E.g., Smith v. Concorida Parish School Bd., 445 
F.2d 285 (5th Cir. 1971); United States v. Texas Education 
Agency, No. 71-3135 (5th Cir., May 10, 1972). And all of 
the Courts of Appeals which have considered the issue have 
agreed that faculty members displaced by a reduction in 
force may not be relegated to the status of new applicants, 
but must be afforded preference in filling subsequent 
vacancies. E.g., Rolfe v. County Bd. of Educ., 391 F.2d 
77, 80-81 (6th Cir. 1968) ; North Carolina Teachers Ass’n 
v. Asheboro City Bd. of Educ., 393 F.2d 736, 744 (4th Cir. 
1968); Clark v. Board of Educ. of Little Rock, 369 F.2d 
736, 744 (8th Cir. 1966) ; Singleton v. Jackson Municipal 
Separate School Dist., 419 F.2d 1211, 1218 (5th Cir. 1969). 
The Board’s failure to afford Respondents such a prefer­
ence justifies the District Court’s order without regard to 
the lower court’s finding as to the lack of impartiality in 
the selection process.

In sum, all of the matters about which the Board com­
plains in its Petition are governed by principles of law 
well settled in all the Courts of Appeals,* 10 and review is 
not warranted herein.

that the administration of the Union Hill Independent School 
District tolerated the alleged shortcomings in the performances 
of the plaintiffs-appellants for extended periods of time but drew 
the line only when true desegregation of the district was about to 
become a reality.”

10 The dissent of Judge Weick below is grounded upon a mis­
construction of the District Court’s order identical to the Board’s ; 
the lower court’s ruling does not require “ the hiring of a teacher 
who may not be competent to teach” (Ptn. App. A -ll)  but only 
that incompetence be established as provided under Tennessee 
law rather than being presumed and veiled behind federal court 
desegregation decrees. See Ptn. App. A-25.



1 1

III.

The Rulings Below That The School Board Was Not 
Entitled To Demand A Jury Trial Are Plainly Right 
And Do Not Conflict With Applicable Decisions O f This 
Court.

The Board claims a Seventh Amendment right to demand 
a jury trial in this action brought pursuant to 42 U.S.C. 
§1983 to redress constitutional deprivations, and also that 
the ruling below conflicts with Dairy Queen, Inc. v. Wood, 
369 U.S. 469 (1962). The short answer to these contentions 
is that the right of jury trial exists only as to causes of 
action in which it was available at the time the Amendment 
was adopted. Where, as here, the litigation is brought pur­
suant to express statutory authorization, and was unknown 
at common law, there is no constitutional right to a jury. 
United States v. Louisiana, 339 U.S. 699, 706 (1950); NLRB 
v. Jones & Laughlin Steel Cory., 301 U.S. 1 (1937).

The issue was last presented to this Court in a petition for 
review from the decision in HarTdess v. Sweeny Independent 
School Dist., 427 F.2d 319 (5th Cir. 1970), cert, denied, 400 
U.S. 991 (1971). There, the Court of Appeals for the Fifth 
Circuit, in a teacher discharge case like this one, expressly 
held there was no right to jury trial, and reaffirmed its 
view, earlier expressed, that NLRB v. Jones <& Laughlin 
Steel Corp,f supra, was unaffected by the Beacon Theatres, 
Inc. v. West-over, 359 U.S. 500 (1959) and Dairy Queen 
cases relied upon by this School Board. The court noted 
that the Fifth Circuit had “ rejected the view ‘. . . that the 
trio of Beacon Theatres, Dairy Queen, and Thermo-Stitch is 
a catalyst which suddenly converts any money request into 
a money claim triable by a jury.’ Swofford v. BSW, Inc., 
5 Cir., 1964, 336 F.2d 406, 414.” Ilarhless v. Sweeny Inde­



12

pendent School Dist., supra, 427 F.2d at 324. The Fourth 
Circuit reached a similar result in an action involving the 
reinstatement of nurses who had been the victims of racial 
discrimination. Smith v. Hampton Training School, 360 
F.2d 577, 581 (4th Cir. 1966).

Each of these cases characterized the back pay-money 
demand as “ incidental” to the subject matter of the claim— 
the vindication, pursuant to 42 U.S.C. §1983, of constitu­
tional rights.11 This is quite different, however, from the 
sense in which litigants have sought to characterize inde­
pendent legal and equitable claims, joined together in a 
single lawsuit, as “ incidental” to one another in order to 
promote or defeat the right to jury trial. Beacon Theatres, 
Dairy Queen, and other decisions of this Court make abso­
lutely clear that where the subject matter of a lawsuit in­
cludes a legal claim cognizable to be tried before a jury 
when the Seventh Amendment was adopted, the right to 
jury trial is absolute.

On the other hand, the rationale of NLRB v. Jones <& 
Laughlin Steel Corp., supra: that there is no jury trial 
right applicable to statutorily created actions, is not af­
fected by the Beacon Theatres cases and has been applied 
by this Court and the lower federal courts. E.g., Porter 
v. Warner Co., 328 U.S. 395 (1946) (Emergency Price Con­
trol Act of 1942); Mitchell v. DeMario Jewelry, 361 U.S. 
288 (1960) (Fair Labor Standards A c t ) ; Brady v. Trans

11 One of the latest jury trial right cases from this Court, Boss v. 
Bernhard, 396 U.S. 531 (1970), indicates that the availability of a 
jury depends upon the nature of the underlying claim. There, 
plaintiffs in a stockholder’s derivative action were allowed to 
demand a jury trial not simply because “ [t]he relief sought is 
money damages” but because there were “allegations [in the com­
plaint] of ordinary breach of contract and gross negligence,” 
traditional legal claims entitling the parties to a jury trial. 396 
U.S. at 542.



13

World Airlines, Inc., 196 F. Supp. 504 (D. Del. 1961) (Rail­
way Labor A c t ) ; Conrocode v. Ohio Bell Tel. Co., 11 F.R.D. 
303 (N.D. Ohio 1951) (Selective Training and Service A c t ) ; 
McGraw v. United Ass’n of Journeymen, etc., 341 F.2d 705 
(6th Cir. 1965) (Landrum-Griffin A c t ) ; King v. Laborers 
Int’l Union, 443 F.2d 273 (6th Cir. 1971) (dictum), and cases 
cited therein (Title VII, Civil Rights Act of 1964).

Finally, we suggest that in any event, the issue is not 
significant enough to warrant review by this Court. In 1972, 
the Congress amended Title Y II of the Civil Rights Act of 
1964 (dealing with discrimination in employment) so as to 
include within the Act’s coverage, for the first time, em­
ployees of state and local governmental bodies—including 
teachers. 1972 U.S. Code Cong. & Adm. News 814. Since 
most future claims of discriminatory teacher discharge 
will probably be brought under Title VII, as to which it 
has been consistently held that there is no jury trial right, 
e.g., Johnson v. Georgia Highway Express, Inc., 417 F.2d 
1122, 1125 (5th Cir. 1969); King v. Laborers Int’l Union, 
supra, this issue is likely to become academic.



14

CONCLUSION

For the foregoing reasons, Respondents respectfully pray 
that the Petition for Writ of Certiorari he denied.

Respectfully submitted,

A von N. W illiam s , J e .
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

J ack  Greenberg 
J ames M. N abrit , III 
N orman  J . C h a c h k in  
S ylvia  D rewt

10 Columbus Circle
New York, New York 10019

Attorneys for Respondents



MEilEN PRESS INC. —  N . Y. C. 219