Steward v. Stanton Independent School District Brief for Appellants

    I n  THE

llmteii States Court of Appeals
F oe  t h e  F if t h  C ir c u it  

No. 23291

B e l v in  B . S t e w a r d , et ux.,
Appellants,

S t a n t o n  I n d e p e n d e n t  S c h o o l  D is t r ic t , et al.,

Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF TEXAS, PECOS DIVISION

BRIEF FOR APPELLANTS

W e ld o n  H . B e rr y

618 Prairie Avenue 
Houston, Texas 77002

J a c k  G r e e n be r g  
D e r r ic k  A . B e l l , J r .

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



I N D E X

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

Specification of Error .................................................... 8

A r g u m e n t —

Preliminary Statement ....................................................  9

I. Appellants, Under Generally-Applied Rules of 
Proof in Racial Discrimination Cases, Sufficiently 
Proved Their Dismissal by the Board Was Racially 
Motivated and Violated Constitutionally-Protected 
Rights ......................................................................... 13

II. School Boards Effecting Faculty Reductions Re­
quired by Desegregation Must Evaluate All 
Teachers, Both Incumbent and Applicants, by 
Valid, Objective and Ascertainable Standards .... 20

C o n c l u s io n  ....................................................................... 22

T able  of C ases

Adler v. Board of Education, 342 U.S. 485 (1952) ....... 13
Alston v. School Board of City of Norfolk, 112 F.2d

992 (4th Cir. 1940), cert, den., 311 U.S. 693 ..............  13
Avery v. Georgia, 345 U.S. 559 (1953) ...........................  17

Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963) ....... 18
Bonner v. Texas City Independent School District, Civ.

No. 65-G-56 (S.D. Tex. 1965) ..................................... 11
Bradley, et al. v. School Board of City of Richmond,

317 F.2d 429 (4th Cir. 1963) ......................................... 20
Bradley v. School Board of Richmond, 382 U.S. 103 

(1965)

PAGE

9



Brooks v. School District of Moberly, Mo., 267 F.2d
733 (8th Cir. 1959) .........................................11,13,14,

Brown v. Board of Education, 347 U.S. 483 (1954) .... 
Brown v. Board of Education, 349 U.S. 294 (1955) .... 
Bryan v. Alston, 148 F.Supp. 563 (E.D.S.C. 1957) .... 
Buford v. Morganton City Board of Education, 244 

F.Supp. 437 (W.D.N.C. 1965) .....................................

Calhoun v. Latimer, 321 F.2d 302 (5th Cir. 1963)
vacated 377 U.S. 263 (1964) ................................. 20,

Chambers v. Hendersonville City Board of Education, 
245 F.Supp. 759 (W.D.N.C. 1965), on appeal to
Fourth Circuit (No. 10,379) .....................................

Christmas v. Board of Education of Harford County,
Md., 231 F.Supp. 331 (D.Md. 1964) ..................11,13,

Cooper v. Aaron, 358 U.S. 1 (1958) .............................
Cramp v. Board of Public Instruction, 368 U.S. 278 

(1961) .............................................................................

Dean v. Gray-Supt. Wagoner Okla. Public Schools, Civ.
No. 5833 (E.D. Okla. 1965) .........................................

Dobbins v. County Board of Education of Decatur Co.,
Civ. No. 1608 (E.D. Tenn. 1965) .............................

Dowell v. School Board of City of Oklahoma, 244 
F.Supp. 971 (W.D. Okla. 1965) .............................

Eubanks v. Louisiana, 356 U.S. 584 (1958) ..............
Evers v. Jackson Municipal Separate School District, 

328 F.2d 408 (5th Cir., 1964) .....................................

Fayne v. County Board of Education of Tipton Co.,
Civ. No. C-65-274 (W.D. Tenn. 1965) ..........................

Franklin v. County School Board of Giles County, 
242 F.Supp. 371 (W.D. Va. 1965) on appeal to Fourth 
Circuit (No. 10,214) ............................. 11,13,17,18, 20,

,20
9
9

13

11

21

11

18
20

13

11

11

9

17

18

11

21



Ill

Green v. School Board of City of Roanoke, Va., 304 
F.2d 118 (4th Cir. 1962) ............................................  20

Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965) ..............  9

Lombard v. Louisiana, 373 U.S. 267 (1963) ..............  19

Meredith v. Fair, 305 F.2d 343 (5th Cir. 1962) ........... 18

N.A.A.C.P. v. Button, 371 U.S. 415, 428 (1963) ..........  2
Norris v. Alabama, 294 U.S. 587 (1935) ...................... 17
North Carolina Teacher Association v. City of Ashe- 

boro Board of Education, Civ. No. C-102-G-65 (M.D.
N.C. 1965) .....................................................................  11

Peterson v. City of Greenville, 373 U.S. 244 (1963) ....... 19
Price v. Denison Independent School District, 348 

F.2d 1010 (5th Cir., 1965) ........................................... 10

Reece v. Georgia, 350 U.S. 85 (1955) .........................  17
Robinson v. Florida, 378 U.S. 153 (1964) ..................  19
Rogers v. Paul, 382 U.S. 198 (1965) .......................... 9
Ross v. Dyer, 312 F.2d 191, 196 (5th Cir. 1953) .......16, 26

Schware v. Board of Bar Examiners, 353 U.S. 232
(1957) ...........................................................................13,14

Shelton v. Tucker, 364 U.S. 479 (1960) ...................... 13
Singleton v. Jackson Municipal Separate School Dis­

trict, 348 F.2d 729 (5th Cir., 1965) ............................  9
Slochower v. Board of Higher Education, 350 U.S.

551 (1956) ................................................................... 13,14

PAGE

Smith v. Morrilton School District No. 3, Civ. No. L.R.- 
65-C-103, E.D. Ark. Oct. 8, 1965, on appeal to Eighth 
Circuit (No. 18,243) .................................................... 11



PAGE

Torcaso v. Watkins, 367 U.S. 488 (1961) ..................  13

Wall v. Stanley County Board of Education, Civ. No.
140-S-65 (M.D. N.C. 1965) ......................................... 11

Watson v. City of Memphis, 373 U.S. 526 (1963) ....... 19
Wieman v. Updegraff, 344 U.S. 183 (1952) ..................  13

S t a t u t e

Civil Rights Act of 1964, 42 U.S.C. Section 2000(d), 
et seq. .............................................................................  9

O t h e r  A u t h o r it ie s

Georgia Teachers and Education Association, Atlanta, 
Georgia, Selected Cases Involving Subjective Per­
sonnel Practices Utilized in Dismissing Educators .... 11

H.E.W., General Statement of Policies Under Title VI 
of the Civil Rights Act of 1964  Respecting Desegre­
gation of Elementary and Secondary Schools, April 
1965 ................................................................................. 10

H.E.W., Revised Statement of Policies for School 
Desegregation Plans under Title VI of the Civil 
Rights Act of 1964  ........................................................  10

National Education Association, Report of Task Force 
Appointed to Study the Problem of Displaced School 
Personnel Related to School Desegregation and the 
Employment Studies of Recently Prepared Negro 
College Graduates Certified to Teach in 17  States, 
December 1965 ............................................................11,12

North Carolina Teachers Association, Raleigh, North 
Carolina, Teacher Dismissals 11



V

Memorandum of U.S. Commissioner of Education, 
June 9, 1965 .................................................................  10

Ozmon, The Plight of the Negro Teacher, The Ameri­
can School Board Journal, pp. 13-14, September 
1965 ................................................................................  11

President’s Speech, N.E.A. Convention, July 2, 1965,
New York ......................................................................  0

Southern Education Reporting Service, Statistical 
Summary of School Segregation—Desegregation in 
Southern and Border States (1965-66) .................... 9

PAGE



I n the

United States (tort of Appeals
F or  t h e  F if t h  C ir c u it  

No. 23291

B e l v in  B . S t e w a r d , et ux.,
Appellants,

— y .—

S t a n t o n  I n d e p e n d e n t  S c h o o l  D is t r ic t , et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF TEXAS, PECOS DIVISION

BRIEF FOR APPELLANTS

Statement

This is an appeal from a judgment (R. 34) of the United 
States District Court for the Western District of Texas, 
Pecos Division, denying relief to plaintiffs who were dis­
missed as teachers after the only Negro school in the 
Stanton Independent School District was closed.

On June 7, 1965, appellants Belvin B. Steward and 
Christine S. Steward, Negro citizens of Stanton, Texas, 
instituted this action against the Stanton Independent 
School District of Stanton, Texas, Beryl D. Clinton, Super­
intendent, and School hoard members Coats Bentley, A. P. 
Harrell, Neil Fryar, Fred Holder and Stanton White 
(R. 1, 39, 165). The complaint sought injunctive relief



2

against the School District’s hiring and assignment policy 
under which appellants were refused contracts and dis­
missed to prevent their teaching white children during 
the school year 1965-66 (E. 4, 7, 8).

The School District filed an answer admitting appellants 
had been employed in the district and had not been re­
employed for the 1965-66 school year, and denying that 
the School District’s refusal to re-employ appellants con­
stituted a violation of constitutional rights (E. 14-15).

Plaintiff Belvin B. Steward is 32 years old, has a B.A. 
degree in Political Science and Education from Prairie 
View A. & M. College in Prairie View, Texas, and a M.A. 
degree in Education and Administration from the same 
college (E. 38, 44). Mr. Steward served in the Army for 
three years after receiving his B.A. degree in 1955. He 
was a substitute teacher for grades three through twelve 
in the San Antonio Independent School District from the 
fall of 1958 through May, 1959, before going to the Stanton 
Elementary Colored School as a regular teacher in Sep­
tember, 1959. He was appointed as the school’s head 
teacher in 1961, received his M.A. degree in 1962. His 
dismissal was effective in May, 1965 (E. 44, 48, 55, 58).

Plaintiff Christine S. Steward, 27 years old, obtained 
a B.A. degree from Prairie View in English and Elemen­
tary Education in 1959 and obtained a M.A. degree in 
Elementary Education, Counselling and Guidance from the 
same college in 1962. From 1959 to 1961 she taught all 
subjects in the fifth grade and ninth grade English in the 
Centerville Independent School District. She taught grades 
three, four and five in the Stanton Elementary Colored 
School from 1961 to 1965 (E. 131, 133-35, 137).

The record reveals the following facts. During the 
school year 1964-65, Stanton Elementary Colored School,



3

an all-Negro school having three Negro faculty members, 
two of whom are appellants, had 48 pupils. All-white 
Stanton Elementary School had 557 pupils and 15 or 16 
white faculty members during 1964-65. All-white Courtney 
Elementary School had 70 pupils and 6 white faculty 
members during the same period (R. 58, 209-10, 265).

The School District’s President, James N. Biggs, testi­
fied that because “the law of the land had changed,” 
Stanton High School was desegregated for the first time 
during the school year 1964-65 (R. 172). Mr. Biggs also 
testified that the federal Department of Health, Education 
and Welfare was denying the School District money for 
classes in home economics and vocational agriculture be­
cause this suit challenges the School District’s desegrega­
tion plan (R. 206-207).

Mr. Biggs also testified that all elementary schools were 
consolidated for the school year 1965-66 in order to effect 
integration and reduce expenditures. Because of the con­
solidation, he reported, six teachers including all three 
Negroes in the system were “dropped” (R. 202-203).1

1 Mrs. Ludora Preciphs, the third Negro teacher at the Stanton Colored 
Elementary School, was not rehired for 1965-66 even though she has 
thirteen years of teaching experience, and her grades were generally better 
than those of the three white teachers transferred from Courtney Elemen­
tary to Stanton and generally better than those of the newly hired white 
teachers ( compare Plaintiffs’ Exhibit 12-b with Plaintiffs’ Exhibits 4-b, 
5-b, 6-b, 7-b, 8-b, 9-b, 10-b, 11-b, 15-b, 16-b, 17-b, 18-b, 19-b, 20-b, 28-b, 
29-b, 30-b). Superintendent Clinton testified, however, that in March, 
1965, he had determined there were other teachers more qualified than 
Mrs. Preciphs and that because she did not desire a new teaching con­
tract, he did not offer her one (R. 292). Significantly, only one of the 
thirteen newly hired white teachers had submitted an application to the 
School District before March 11, 1965, the date of Superintendent Clin­
ton’s letter of dismissal to Mrs. Preciphs and to appellants (see Plaintiffs’ 
Exhibits 4 through 20 excluding numbers 12, 13, 14; R. 87). Mrs. 
Preciphs taught during the summer of 1965 in the Midland, Texas Head 
Start Project (R. 144).



4

On March 11, 1965, Superintendent Clinton wrote a 
letter thanking appellants for their “magnificent job” but 
expressing his sadness that consolidation of the schools 
would eliminate their jobs (R. 221-22). Consolidation of 
the schools in fact eliminated no jobs. The Superintendent 
admitted that some thirteen new, white teachers were 
hired for the school year 1965-66, bringing the total num­
ber of teachers in Stanton to the same number, i.e., 44, 
that it was during 1964-65 (R. 212-13, 254, 290).

Mr. Clinton testified unequivocally that he considered 
the “better grades, better transcripts, better college rec­
ords” of the new white teachers in making recommenda­
tions to the school board regarding Mr. Steward (R. 277). 
Inexplicably, however, only one of the thirteen newly 
hired white teachers had submitted an application for 
employment to the School District before March 11, 1965, 
the date of Mr. Clinton’s letter of dismissal to appellants 
(see Plaintiffs’ Exhibits 4 through 20, excluding numbers 
12, 13, 14; R. 87, 221-22). Furthermore, there was no 
showing that appellants were the least qualified teachers 
then employed by the School District. On May 10, 1965, 
Mr. Steward and counsel appeared before the school board 
in an effort to have appellants’ contract renewed (R. 96). 
They were unsuccessful. The next day, May 11, Mr. 
Steward met with Superintendent Clinton in another un­
successful effort to secure re-employment (R. 113-18).

In response to questions from appellees’ counsel, Mr. 
Steward testified that on May 11, 1965, Superintendent 
Clinton said that the school board and white people did 
not want Negroes teaching white children (R. 113). The 
Superintendent sought to convince appellant that for the 
sake of community peace and stability, he should accept 
his dismissal and leave rather than file suit (R. 115-117).



5

Appellant rejected the suggestion and told the Super­
intendent :

A. I asked him how did he think that I could face 
the children that I had been teaching—would they 
really think I was a teacher or just something else 
because of the fact that I could teach them in a Negro 
school but I still couldn’t take to an integrated situa­
tion and work as I had been over there at the Colored 
school. He said, “Just tell them that you haven’t— 
they didn’t hire you and just take the easy way out.” 
And I said, “No. I am not going to do that because 
I don’t feel that I would be doing them any good 
or anything, and I wasn’t going to sell the Negro 
race out, even if I did lose a job and never be able 
to get another job teaching school because of your 
recommendation” (R. 116-17).2

At the trial, Superintendent Clinton sought to justify 
the dismissal of Mr. Steward on what he deemed the

2 The Superintendent told appellant that Martin County Sheriff Saun­
ders had taken guns away from white men downtown because “ they 
wanted to do something.”  He also asked Mr. Steward to reconsider his 
position; otherwise the superintendent threatened he would so muddy 
Steward’s name that it would be almost impossible for him to get another 
job in Texas. Clinton also asked Steward not to file suit because Clinton 
would lose his Job. Clinton said he had just built a nice home and thought 
he could offer something to the community, but that Steward should leave 
because Steward was not a homeowner and did not have anything for 
which to remain. Clinton said if Steward did win the suit that the two 
of them could not work together, that possibly Steward would remain 
only one year but that was sufficient time for Clinton “ to get what he 
wanted on”  Steward. Clinton also asked Steward i f  Steward realized 
that “ people would blow up or have a fight” if Steward were allowed to 
teach (R. 113-17). Steward further testified that “ he [Clinton] told me 
that— what he said wouldn’t make any difference because it wasn’t any­
body there but the two o f us and that I  couldn’t swear to it, because if  I  
did, all he would have to do was deny it” (R. 115). Although Mr. Clinton 
subsequently denied that appellants were dismissed because of race (R. 
232, 268), Mr. Steward’s summary of the May 11, 1965 conversation has 
never been questioned, qualified or denied.



6

latter’s undistinguished undergraduate transcript although 
the superintendent admitted that Mr. Steward’s marks as 
a graduate student were “far better” than his under­
graduate marks (R. 269-70, 287). Superintendent Clinton 
also felt it proper not to rehire Mrs. Steward because she 
was to have a baby in the summer of 1965 (R. 293), and 
because of her undergraduate “D’s” in English (R. 285).3 
As in the case of Mr. Steward, the superintendent gave 
“preference” to Mrs. Steward’s undergraduate work over 
her graduate marks (R. 285). The superintendent testi­
fied that Mr. Steward had “ indicated” that after the baby 
came, Mrs. Steward’s place would be at home (R. 293). 
Mrs. Steward testified that she intended to teach during 
the 1965-66 school year and that neither she nor her hus­
band had ever told anyone the contrary (R. 136).

Despite their years of teaching experience in Stanton 
and the possession of master’s degrees, appellants were 
not rehired for 1965-66 whereas none of the newly hired 
white teachers has a master’s degree and most have less 
teaching experience than appellants (see Plaintiffs’ Ex­
hibits numbered 4 through 20, cf. R. 187-89). Mr. Steward’s 
undergraduate grades tended to be lower than those of 
the new white teachers (R. 277), but Mrs. Steward’s under­
graduate grades compared favorably with those of the 
new white teachers (see Plaintiffs’ Exhibits marked 4 
through 20, excluding 12-a-b-c, 14-a-b-c). Both appellants 
are licensed in Texas to teach grades one through twelve 
under professional teaching certificates. None of the three 
white teachers transferred from Courtney Elementary to 
Stanton Elementary, and thus retained in the District,

3 Paradoxically, Superintendent Clinton’s letter of dismissal to plaintiffs 
contained a singular subject and a plural predicate, viz., “ Certainly I 
wish to extend to you sincere thanks, and congratulations for the mag­
nificent job each of you have done for our community”  (R. 221-22).



7

has such a professional teaching certificate (compare Plain­
tiffs’ exhibits 13-a-b-c and 14-a-b-c with 28-a-b-c-d, 29-b 
and 30-a-b-c). The record supplies little information as 
to the qualifications of the three white teachers who were 
dismissed because of consolidation except to reveal that 
one, Mrs. Janelle Britton, did not have a bachelor’s degree; 
another, Mr. Christian, was a new teacher; the third, Mrs. 
Beryl Clinton was apparently the superintendent’s wife 
(R. 154, 174-75).

As the School District President, James N. Biggs, ad­
mitted, Negro teachers traditionally were given only one- 
year tenure each year, but white teachers ordinarily 
worked one year on probation and then received three- 
year tenure (R. 181-83). While Superintendent Clinton 
denied its existence (R. 221), this racial policy was also 
reflected in the school board minutes (R. 255, 257-58) 
and in the testimony of Mr. Steward (R. 123, 130). On 
May 25, 1965, after appellants had been notified that 
they would not be rehired for 1965-66, the school board 
changed its racial policy so that upon the expiration 
of teacher contracts then in force, all future teacher con­
tracts would be limited to one year (R. 258). Superin­
tendent Clinton, though conceding that the rehiring of 
appellants would have subjected them to “pressures,” said 
that appllants’ race was not a factor in refusing to rehire 
them (R. 191, 218, 267-68); but had appellants been white, 
they would have had the benefit of the three-year tenure 
rule and thus could not have been summarily dismissed.

On November 30, 1965, the district court filed an opinion 
finding that neither the school board nor Superintendent 
Clinton had “any rule, practice or custom of refusing 
employment to Negro teachers because of their race” 
(R, 25) and that the school board and Superintendent 
Clinton in good faith determined that the School District



8

had better qualified teachers than plaintiffs (R. 28-29). 
The district court further found that the school board 
hired and rehired teachers without racial discrimination 
(R. 29-30) and that there was insufficient evidence to find 
that plaintiffs were not rehired because of race or color 
(R. 30-31). The district court made no finding, however, 
regarding the racial policy of granting Negro teachers 
one-year tenure and white teachers three-year tenure. The 
district court concluded that, “Plaintiffs have the burden 
of proof to satisfy the court from the evidence and by 
its greater weight that they failed re-employment by rea­
son of their color or race, and plaintiffs have failed to 
discharge this burden” (R. 33).

Prom the November 30, 1965 judgment in favor of 
appellees (R. 34) appellants noticed an appeal on Decem­
ber 8, 1965 (R. 35).

Specification of Error

The district court erred in failing to find that appellants 
were not rehired as teachers by appellees because of race 
or color in violation of the Fourteenth Amendment to the 
United States Constitution.



9

ARGUMENT

Preliminary Statement

The ever increasing reluctance of the federal judiciary 
to condone further delay in the complete desegregation of 
public school systems as mandated more than a decade ago 
in Brown v. Board of Education, 347 U.S. 483; 349 U.S. 
294 ;4 together with increasing implementation of the 1964 
Civil Rights Act,5 have resulted in a small, but noticeable 
increase in pupil desegregation6 and, as a result, increasing 
attention on faculty desegregation. As Negro students ob­
tain transfers from all-Negro to formerly all-white schools, 
and the formerly all-Negro schools are closed or integrated, 
Negro teachers in Texas as elsewhere in the South 
have been summarily dismissed rather than trans­
ferred along with Negro students or employed and as­
signed without regard to race. This policy has alarmed the 
President of the United States,7 concerned the United

4 Rogers v. Paul, 382 U.S. 198 (1965); Bradley v. School Board of
Richmond, 382 U.S. 103 (1965); Kemp v. Beasley, 352 F.2d 14 (8th Cir., 
1965) ; Singleton v. Jackson Municipal Separate School District, 348 F.2d 
729 (5th Cir., 1965); Dowell v. School Board o f Oklahoma City, 244 
F. Supp. 971 (W.D.Okla. 1965).

6 42 U.S.C. Section 2000(d), et seq.
6 See Southern Education Reporting Service, Statistical Summary of 

School Segregation— Desegregation in Southern and Border States (1965- 
66) .

7 Speech, N.E.A. Convention, July 2, 1965, New York. The President 
said:

“ For you and I are both concerned about the problem of the dis­
missal of Negro teachers as we move forward— as we move forward 
with the desegregation of the schools of America. I  applaud the 
action that you have already taken.

“ For my part, I have directed the Commissioner o f Education to 
pay very special attention in reviewing the desegregation plans, to 
guard against any pattern of teacher dismissal based on race or 
national origin.”



10

States Department of Health, Education and Welfare,8 
been the subject of intensive studies by national teacher

8 The Department’s General Statement o f Policies Under Title VI of 
the Civil Eights Act of 1964 Respecting Desegregation o f Elementary 
and Secondary Schools, published in April 1965, inter alia, requires the 
desegregation of school faculties (the H.E.W. Policies were adopted by 
the Fifth Circuit as minimum school desegregation standards and pub­
lished as an appendix to Price v. Denison Independent School District, 
348 F.2d 1010 (5th Cir. 1965)). The United States Commissioner of 
Education in response to numerous complaints that Negro teachers were 
being dismissed or released by school boards seeking to avoid faculty 
desegregation, published a memorandum on June 9, 1965, and distributed 
same to his staff and to the chief school officers in every State. He re­
ported that the complaints were being investigated, that the policies or 
practices complained of were in direct violation o f Title V I of the 1964 
Civil Rights Act, and the General Statement and Policies published in 
April 1965. The memorandum concluded:

“ The statement of policies, as you know, requires desegregation 
plans to contain provisions concerning desegregation of school facul­
ties. A  school district cannot avoid the requirement that it desegregate 
its faculties by discriminatorily dismissing or releasing its Negro 
teachers. Nor can a freedom of choice plan be deemed ‘free’ if  in­
direct pressure is placed on Negro students to forego rights under 
such a plan by threatening Negro teachers with loss of their jobs, 
should Negro students leave Negro schools to attend desegregated 
schools.”

In March, 1966, the Department issued its Revised Statement o f Policies 
for School Desegregation Plans under Title V I of the Civil Rights Act 
of 1964, which provides in §181.13 that the effects of past discriminatory 
practices in staff assignments must be corrected; that staff may not be 
dismissed or not rehired on racial grounds; that patterns of staff assign­
ments should reflect desegregated staff where the student body is desegre­
gated; that staff o f closed schools should be reassigned to other schools 
where their race is in the minority. Most pertinently, §181.13(c) stated 
inter alia:

In any instance where one or more teachers or other professional 
staff members are to be displaced as a result of desegregation, no staff 
vacancy in the school system may be filled through recruitment from 
outside the system unless the school officials can show that no such 
displaced staff member is qualified to fill the vacancy. I f  as a result 
of desegregation, there is to be a reduction in the total professional 
staff o f the school system, the qualifications o f all staff members in 
the system must be evaluated in selecting the staff members to be 
released.



11

groups,9 and generated a growing number of lawsuits.10

This process of pupil desegregation and teacher dis­
missal has recently been reported on in great detail by 
the National Education Association, which reviewed the 
problem in the following terms:

“ Concern with faculty integration is becoming acute 
because of current practices. Typically, whenever 
twenty or twenty-five Negro pupils are transferred 
from a segregated school, the Negro teacher left 
without a class is in many cases dismissed rather 
than being transferred to another school with a 
vacancy. When all the pupils attending small Negro

9 National Education Association, Washington, D. C., “ Report o f Task 
Force Appointed to Study the Problem of Displaced School Personnel 
Related to School Desegregation and the Employment Studies of Recently 
Prepared Negro College Graduates Certified to Teach in 17 States”  De­
cember 1965; North Carolina Teachers Association, Raleigh, North Caro­
lina “ Teacher Dismissals” ;  Georgia Teachers and Education Association, 
Atlanta, Georgia, “ Selected Cases Involving Subjective Personnel Prac­
tices Utilized in Dismissing Educators.”  See also, Ozmon, “ The Plight 
o f the Negro Teacher” , The American School Board Journal, pp. 13-14, 
September, 1965.

10 Franklin v. County School Board of Giles County, 242 P. Supp. 371 
(W.D. Va. 1965) on appeal to Fourth Circuit (No. 10,214); Christmas 
v. Board of Education o f Harford County, Md., 231 F. Supp. 331 (D.C. 
Md. 1964); Buford v. Morganton City Board o f Education, 244 F. Supp. 
437 (W.D.N.C. 1965) ; Chambers v. Hendersonville City Board o f Educa­
tion, 245 F. Supp. 759 (W.D.N.C. 1965), on appeal to Fourth Circuit 
(No. 10,379); Smith v. Morrilton School District, No. 3, Civ. No. LR.-65- 
C-103, E.D. Ark., Oct. 8, 1965, on appeal to Eighth Circuit (No. 18243); 
Dean v. Gray— Supt. Wagoner Oklah. Public Schs., Civ. No. 5833 (E.D. 
Okla. 1965); Brooks v. School District of City o f Moberly, Mo., 267 F.2d 
733 (8th Cir. 1959).

The following cases have been filed, North Carolina Teacher Associa­
tion v. City o f Asheboro Board of Education, Civ. No. C-102-G-65 (M.D. 
N.C. 1965); Wall v. Stanley County Board of Education, Civ. No. 140- 
S-65 (M.D.N.C. 1965) ; Dobbins V. County Board of Education of 
Decatur Co., Civ. No. 1608 (E.D. Tenn. 1965) ; Fayne v. County Board 
o f Education of Tipton Co., Civ. No. C-65-274 (W.D. Tenn. 1965); 
Bonner v. Texas City Independent School District, Civ. No. 65-G-56 
(S.D. Tex. 1965).



12

schools are reassigned to previously white schools, 
principals as well as an increased number of teachers 
are often faced with the problem of relocation. The 
1964 summer crisis caused by the growing threat and 
the actual loss of positions brought a stream of pro­
tests and calls for assistance to the NEA’s Commis­
sion on Professional Eights and Responsibilities” 
(P- 7).

“As has been demonstrated, ‘white schools’ are 
viewed as having no place for Negro teachers. As 
a result, when Negro pupils in any number transfer 
out of Negro schools, Negro teachers become surplus 
and lose their jobs. It matters not whether they 
are as well qualified as, or even better qualified than, 
other teachers in the school system who are retained. 
Nor does it matter whether they have more seniority. 
They were never employed as teachers for the school 
system—as the law would maintain—but rather as 
teachers for Negro schools” (p. 13).11

The deprivation of constitutional rights threatened by 
these dismissals warrants careful scrutiny by this Court 
for only by such inquiry can the constitutional rights of 
Negro teachers be assured. It is from this perspective 
that the issues raised by this case must be viewed. It 
is with this background that the contested dismissals 
must be examined. * 9

11 “ Report of Task Force Appointed to Study the Problems of Dis­
placed School Personnel Related to School Desegregation,”  see note
9, supra. The study was conducted under the auspices o f the National 
Education Association and financed jointly by the Association and a grant 
from the United States Office o f Education, Department o f Health, Edu­
cation and Welfare.



13

I.

Appellants, Under Generally-Applied Rules of Proof 
in Racial Discrimination Cases, Sufficiently Proved Their 
Dismissal by the Board Was Racially Motivated and Vio­
lated Constitutionally-Protected Rights.

The law is clearly established that public servants or 
employees may not, consistent with the Constitution, be 
deprived of the right to pursue their profession on the 
basis of some frivolous, arbitrary or racially discrimina­
tory ground. Cramp v. Board of Public Instruction, 368 
U.S. 278 (1961); Torcaso v. Watkins, 367 U.S. 488, 495-96 
(1961); Schware v. Board of Bar Examiners, 353 U.S. 232 
(1957); Slochower v. Board of Education, 350 U.S. 551 
(1956); Wieman v. Updegraff, 344 U.S. 183 (1952). Negro 
teachers seeking relief against interference with their pro­
fessional careers based on race frequently have been in­
cluded within the protection of these rights. Shelton v. 
Tucker, 364 U.S. 479 (1960); Alston v. School Board of the 
City of Norfolk, 112 F.2d 992 (4th Cir. 1940); Bryan v. 
Alston, 148 F. Supp. 563, 567 (E.D.S.C. 1957) (dissent).

The Eighth Circuit has clearly indicated that the scope 
of constitutional protection encompasses Negro teachers, 
protecting them from arbitrary, unreasonable, or racially 
motivated dismissal during the transition to desegregated 
schools. Brooks v. School District of City of Moberly, Mo., 
267 F.2d 733, 740 (8th Cir. 1959). See also, Franklin v. 
County School Board of Giles County, 242 F. Supp. 371 
(W.D.Va. 1965); Christmas v. Board of Education of 
Harford County, 231 F. Supp. 331 (D.Md. 1964).

Conceding that certain definite standards or criteria 
are permissible, Adler v. Board of Education, 342 U.S. 485, 
493 (1952), officers of a state, in applying such standards,



14

“cannot exclude an applicant when there is no basis for 
their finding that he fails to meet these standards or when 
their action is invidiously discriminatory.” Schware v. 
Board of Bar Examiners, supra, at 239.

Thus, having the affirmative burden to accord equal 
protection and due process to Negro teachers, a school 
board which, in the process of desegregating its system, 
closes a Negro school and dismisses the whole faculty 
should carry the affirmative burden of showing this result 
was not racially motivated and that the Negro teachers 
dismissed were replaced by teachers judged superior by 
objective and readily measurable standards. Cf. Schware 
v. Board of Bar Examiners, supra; Slochower v. Board 
of Education, supra; Brooks v. School District of City of 
Moberly, Mo., supra at 740.

On this record, however, it is evident that appellants 
and the third Negro faculty member of the abandoned 
Negro elementary school were dismissed without any 
thought of offering them teaching positions in the deseg­
regated elementary school. Superintendent Clinton testi­
fied unequivocally (1) that he considered the “better 
grades, better transcripts, better college records” of the 
new white teachers in making recommendations to the 
school board regarding Mr. Steward and (2) that he had 
determined in March, 1965 that there were more qualified 
teachers than Mrs. Preciphs, the third Negro faculty mem­
ber (pp. 277, 292). Since only one of the thirteen newly 
hired white teachers had submitted an application to the 
School District before March 11, 1965, the date of super­
intendent’s letter of dismissal to appellants and Mrs. 
Preciphs (see Plaintiffs’ Exhibits 4 through 20, excluding 
numbers 12, 13, 14; R. 4-5, 87, 221-22), it is patently clear 
that no comparison between the new white teachers and 
the Negro teachers was ever made before the dismissals.



15

Furthermore, the dismissals resulted in no reduction in 
the number of teachers employed by appellees in that the 
same number, i.e. 44, are employed for 1965-66 as were 
employed during 1964-65 (E. 212-13, 254, 290). Appellants 
are more experienced teachers than most of the thirteen 
newly hired white teachers; both appellants have master’s 
degrees but none of the new white teachers has one (see 
Plaintiffs’ Exhibits numbers 4 through 20; cf. E. 187-89). 
Appellants possess Texas professional teaching certificates 
to teach grades one through twelve but none of three 
white teachers transferred from Courtney Elementary to 
Stanton Elementary, and thus still employed by appellees, 
has such a certificate (compare Plaintiffs’ Exhibits 13-a-b-c 
and 14-a-b-c with 28-a-b-c-d, 29-b and 30-a-b-c). Of the 
three white teachers dismissed because of consolidation, 
one did not have a bachelor’s degree and another was the 
superintendent’s wife (E. 174-75).

Although the superintendent admitted that Mr. Steward’s 
marks as a graduate student were “ far better” than the 
latter’s undergraduate marks, the superintendent sought 
to justify the dismissal on what he deemed to be Steward’s 
undistinguished undergraduate transcript (E. 269-70, 287). 
The superintendent also felt it proper not to rehire Mrs. 
Steward on the basis of her undergraduate transcript and 
because she was to have a baby in the summer of 1965 
(E. 285, 293). Mr. Steward’s undergraduate grades tended 
to be lower than those of the newly hired white teachers 
(E. 277), but Mrs. Steward’s undergraduate marks com­
pared favorably with those of the new teachers (see Plain­
tiffs’ Exhibits marked 4 through 20, excluding 12-a-b-c, 
14-a-b-c).

Despite the superintendent’s professed concern for eval­
uation of appellants’ undergraduate marks vis-a-vis the 
undergraduate grades of the new white teachers, it must



16

be emphasized that not only did such an evaluation not take 
place prior to appellants’ dismissal (R. 87, 221-22, 277, 
Plaintiffs’ Exhibits 4 through 20, excluding numbers 12, 
13, 14) but also that appellants were dismissed in the con­
text of a racially discriminatory tenure policy. The School 
District President, James N. Biggs, admitted that Negro 
teachers traditionally were given only one-year tenure each 
year but that white teachers ordinarily worked one year on 
probation and then received three-year tenure (R. 181-83). 
Expectedly, Superintendent Clinton disputed the existence 
of such a policy (R. 221), but the school board minutes 
(R. 255, 257-58) and Mr. Steward’s testimony (R. 123, 130) 
reflect it. On May 25, 1965, after appellants had been 
notified that they were dismissed, the school board changed 
its discriminatory racial policy so that upon the expira­
tion of teacher contracts then in force, all future teacher 
contracts would be limited to one year (R. 258). Had ap­
pellants been white they would have been given three-year 
contracts after their respective first years of teaching; 
thus Mr. Steward would have received a three-year con­
tract in 1960, another in 1963 and would have had one 
year remaining of his second three-year contract at the 
time he was dismissed. Mrs. Steward would have received 
her first three-year contract in 1962, after her first year 
of teaching, and would have been eligible for her second 
three-year contract at the time of her dismissal. Of course, 
the superintendent denied that appellants’ race was a fac­
tor in their dismissals (R. 267-68) but he conceded that 
appellants would have been subject to “pressures” if they 
had been rehired (R. 218) and he has never denied making- 
threats to ruin Steward if this suit was instituted (see 
R. 113-17).

In view of (1) the superintendent’s undenied hostility 
toward Mr. Steward; (2) the summary dismissal of appel­
lants in the absence of any evidence to show they were the



17

least qualified teachers in the School District; (3) the 
superintendent’s callous disregard for truth in that he 
stated he had compared Mr. Steward’s grades against those 
of the new white teachers before appellants’ dismissals but 
in fact only one new white teacher had applied at the 
time of appellants’ dismissals; (4) and the racially dis­
criminatory teacher tenure policy in force at the time of 
appellants’ dismissals, it is submitted that appellants were 
the victims of a blatantly racist policy to exclude Negro 
teachers from desegregated teaching positions.

Traditionally, where racial discrimination is charged, 
courts have required more than mere pious denials of 
racial bias to absolve state officials alleged to have violated 
Fourteenth Amendment rights. In criminal cases where 
racial discrimination in jury selection is alleged, federal 
and state courts, upon a showing that Negroes are eligible 
but have not been chosen, lay on the State the burden of 
proving jury discrimination does not exist. See Eubanks 
v. Louisiana, 356 U.S. 584 (1958); Reece v. Georgia, 350 
U.S. 85 (1955); Avery v. Georgia, 345 U.S. 559 (1953); 
Norris v. Alabama, 294 U.S. 587 (1935). Without such a 
rule, even the most flagrant instances of racial discrimina­
tion in jury exclusion would remain beyond the remedy 
of the courts and the Constitution. Norris v. Alabama, 
supra, at 598.

The court below found that appellants failed to show 
racial discrimination by the “greater weight” of proof 
(R. 33).

To the extent that the Superintendent’s denials of dis­
crimination and the manifestations of bias reflected by the 
record are in conflict, the cases indicate that the issue 
must be resolved in plaintiffs’ favor.

Without express mention of the burden of proof prob­
lem, the district court in Franklin v. County School Board



18

of Giles County, 242 F. Supp. 371, 374 (W.D.Va. 1965), 
carefully scrutinized and rejected the Superintendent’s 
basis for selecting teachers, where the teacher force was 
reduced from 186 to 179 teachers as a result of the closing 
of Negro schools and the 7 teachers released were all 
Negroes. Similarly, in Christmas v. Board of Education 
of Harford County, 231 F. Supp. 331, 337 (D.Md. 1964) 
the court ruled:- “ . . . the failure to hire a single Negro 
applicant for the desegregated schools, although the 
qualifications of some of these applicants are obvious and 
admitted, justified plaintiffs’ skepticism, and requires that 
an injunction be issued prohibiting discrimination on the 
basis of race in hiring new teachers.”

Significantly, in both the Harford and Giles County de­
cisions, supra, the district courts carefully noted that the 
abrupt reductions in the ranks of Negro teachers cor­
responded with school desegregation efforts. This Court 
has considered past racially discriminatory practices and 
laws as crucial in Meredith v. Fair, 305 F.2d 343 (5th Cir. 
1962); Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963); 
Evers v. Jackson Municipal Separate School District, 328 
F.2d 408 (5th Cir. 1964); and was particularly appropriate 
in the Harford and Giles County cases where the school 
board, did not immediately desegregate the schools, but 
delayed taking affirmative action until required by court 
order. Similar attention is appropriate here where the 
Board delayed initiation of school desegregation for more 
than a decade until threatened with litigation or the loss 
of federal funds.

In summary, the Superintendent’s contention that the 
dismissal of all Negro teachers was not based on race is 
irreparably compromised by both the record which clearly 
evidences the presence of invalid racial considerations in 
the School District, and the School Districts maintenance



19

of segregated schools long after it was apparent to all 
that the policy irreparably denied Negro pupils their con­
stitutional right to a desegregated education. Indeed, the 
Superintendent is in no better position than the State 
officials who contended that the Negroes arrested and con­
victed while seeking desegregated service in privately 
owned eating places were not prosecuted because of race. 
Reversing such convictions, the Supreme Court noted the 
presence of segregation statutes, regulations and policies, 
and held that because of the continued presence of State- 
sponsored segregation requirements, the officials’ denials 
that their actions were racially motivated would not be 
heard. Peterson v. City of Greenville, 373 U.S. 244 (1963). 
Lombard v. Louisiana, 373 TT.S. 267 (1963); Robinson v. 
Florida, 378 U.S. 153 (1964).

The applicability of the rationale of these cases to the 
instant case is inescapable. The history of discrimination 
by the School Board, particularly in employment and as­
signment of teachers and school personnel, warrants here 
an affirmative showing that appellants were not denied 
employment because of race. Failure of the court below 
to require such showing reduced the rights of the Negro 
teachers involved to sterile pronouncements without mean­
ing or force. Watson v. City of Memphis, 373 U.S. 526 
(1963).



20

II.

School Boards Effecting Faculty Reductions Required 
by Desegregation Must Evaluate All Teachers, Both In­
cumbent and Applicants, by Valid, Objective and Ascer­
tainable Standards.

A. To subject appellants to different standards or cri­
teria than that required of white teachers in the system 
unquestionably denies them equal protection of the laws. 
Franklin v. County School Board of Giles County, supra, 
at 374. See also Bradley v. School Board of the City of 
Richmond, 317 F.2d 429 (4th Cir. 1963); Green v. School 
Board of the City of Roanoke, 304 F.2d 118 (4th Cir. 1962); 
Calhoun v. Latimer, 321 F.2d 302, 304-305 (5th Cir. 1963), 
vacated 377 U.S. 263. Here, plaintiffs, unlike their white 
counterparts who had taught in the school system during 
prior years, were considered as being out of a job and, 
assuming they were considered at all, were compared for 
vacancies in the Stanton Elementary School along with 
new white applicants (R. 277). White teachers already 
assigned to the Stanton Elementary School apparently were 
not similarly compared.

Where the desegregation process results in no reduc­
tion in faculty size (R. 212-13, 254, 290), fundamental con­
cepts of fairness require selection of all teachers based 
on an objective evaluation of their qualifications. More­
over, as the district court noted in Franklin v. County 
School Board of Giles County, supra, at 374, “the making 
of such an evaluation is strong evidence of good faith, 
see Brooks v. School District of City of Moberly, Mo., 267 
F.2d 733, 736, . . . ” Teacher morale, no less than law and 
order, while desirable, may not be maintained at the sacri­
fice of constitutional rights. Cooper v. Aaron, 358 U.S. 1, 
16 (1958).



21

B. Appellants were denied due process and equal pro­
tection of the laws when required to compete with new 
white teachers although other white teachers similarly- 
situated as plaintiffs apparently were not similarly ap­
praised. Franklin v. County School Board of Giles County, 
supra; Calhoun v. Latimer, supra.

As indicated above, it was the School Board’s failure 
to compare the qualifications of all teachers for vacancies 
in the school system which was held repugnant to the con­
stitutional rights of Negro teachers in Franklin v. County 
School Board of Giles County, supra, at 374. It should 
also be condemned here. Applying such standards to the 
school system required that Negro teachers who formerly 
taught in the Stanton Colored School be fairly weighed 
and considered with all teachers teaching grades for which 
the Negro teachers were qualified rather than being con­
sidered as dismissed teachers competing only for vacancies 
in the school system.

Failure of the court below to require this comparison 
and the same objective appraisal of white teachers simi­
larly situated as plaintiffs and members of their class con­
stituted an abuse of discretion requiring reversal of the 
lower court’s decision.



22

CONCLUSION

Appellants respectfully pray that this Court reverse the 
holding of the lower court and remand the case with in­
structions requiring the reinstatement of the appellants. 
If a reduction in teacher force is required, the same stand­
ards or criteria are to be applied to all teachers and ap­
plicants, and after such appraisal, should appellants be 
refused employment, the Board must come forth with clear 
and convincing evidence to show that those denied employ­
ment were accorded due process and equal protection of 
the laws. Appellants are entitled both to damages for the 
economic losses resulting from the Board’s action and to 
their costs and attorneys’ fees.

Respectfully submitted,

W e l d o n  H . B e r b y

618 Prairie Avenue 
Houston, Texas 77002

J a c k  G r e e n b e r g

D e b e ic k  A. B e l l , J e .
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



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