Williams v. Kimbrough Petition for a Writ of Certiorari

    j^uprrmp Court of tlir Ittitrft Stairs
October Term, 1969 

No.............

I n  t h e .

L inda W illiams, et al.,
Petitioners,

v.

George K imbrough, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Jack Greenberg 
James M. Nabrit III 
W illiam Bennett T urner 

10 Columbus Circle 
New York, New York 10019

M urphy W. Bell

214 East Boulevard 
Baton Rouge, Louisiana

Attorneys for Petitioners



I N D E X

PAGE

Table of Authorities ........................................................ ii

Citations to Opinions Below .............. -......................—-  1

Jurisdiction ......................-................................................ 2

Question Presented ............................................................. 2

Constitutional Provision Involved ....................................  2

Statement ..................... -................... -............................... 2

Reasons Fob Gbanting the Wbit .................................  7

I. Introduction: Importance of the Issue ..........  7

II. Counsel Fees Should Have Been Awarded in 
this Case as a Matter of Complete Equitable 
Relief ......................................................... -..........  9

Conclusion............................... ........ ................. -.............. 13

A p p e n d i x

Opinion of Court of Appeals...................................  la

Decision of District Court .........................    3a



11

Table oe A uthorities

Cases: page

Alexander v. Holmes County Board of Education, No.
632 (October 29, 1969) ................................................  7

Bradley v. Board of Education, 382 U.S. 103..............  9n
Brown v. Board of Education, 347 U.S. 483 (1954)....2n, 7, 8 
Brown v. Board of Education, 349 U.S. 294 (1955)....2n, 7, 8

Chambers v. Hendersonville Board of Education, 364
F.2d 189 (4th Cir. 1966) ........ ..................................... . 4n

Clark v. Board of Education of Little Rock School Dis­
trict, 369 F.2d 661 (8th Cir. 1966) .........................   10n

Dolgow v. Anderson, 43 F.R.D. 472 (E.D. N.Y. 1968) .... 9n

Gilbert v. Hoisting & Portable Engineers, 237 Or. 139,
390 P.2d 320 (1964) ............. ...................................... . i2n

Green v. County School Board of New Kent County, 
Virginia, 391 U.S. 430 (1968) ................ ........ ...... . 3n

Hall v. St. Helena Parish School Board,------F .2d-------
(5th Cir. 1969) ......................... ................ .................

Hill v. Franklin County Board of Education, 390 F.2d 
583 (6th Cir. 1968) ..................... ...................................t

NAACP v. Button, 371 U.S. 415 (1963) ................ .........  l l n
Newman v. Piggie Park Enterprises, Inc., 390 U.S 400

(1968)................................ .......... ....................... ............9j 12
North Carolina Teachers Association v. Asheboro City 

Board of Education, 393 F.2d 736 (4th Cir. 1968)..... 4n

Rogers v. Paul, 382 U.S. 198 (1965) ................. ......... . 9n
Rolax v. Atlantic Coast Line R.R., 186 F.2d 473 (4th 

Cir. 1951) ............... ................................................... . 12n



Ill

PAGE

Eolfe v. County Board of Education of Lincoln County, 
Tennessee, 282 F.Supp. 194 (E.D. Tenn. 1966), afPd
391 F.2d 77 (6th Cir. 1968) ...........................................4n, 9

Sanders v. Eussell, 401 F.2d 241 (5th Cir, 1968) ..........  lln
Smith v. Board of Education of Morillton School Dis­

trict No. 32, 365 F.2d 770 (8th Cir. 1966) .................. 4n
Sprague v. Ticonic National Bank, 307 U.S. 161 (1939) 9

United States v. Jefferson County Board of Education,
372 F.2d 836, aff’d with modifications on rehearing 
en banc, 380 F.2d 385, cert, denied sub nom. Caddo
Parish School Board v. United States, 389 U.S. 840 
(1967) ................. ..................................................... 3n, 4, 9n

Vaughn v. Atkinson, 366 U.S. 567 (1962) ...................... 9

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

Other Authorities:

28 U.S.C. § 1254 (1) .............. ........................... ..... ..........  2

United States Civil Rights Commission, Federal En­
forcement of School Desegregation, 12 (September 
11, 1969) .............. ......................... ................................. 11

77 Harvard Law Review 1135, 1136 (1964) ..................  10

114 Cong. Rec. S2308 (daily ed. March 6, 1968) ........... lln



I n  th e

Bupxtmx (Emtrt nf tl)x Ittitpft States
October Term, 1969 

No.............

L inda W illiams, et al.,
Petitioners,

v.

George K imbrough, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioners pray that a Writ of Certiorari issue to 
review the judgment of the United States Court of Ap­
peals for the Fifth Circuit entered in this case on Sep­
tember 5, 1969.

Citation to Opinions Below

The opinion of the United States Court of Appeals 
for the Fifth Circuit is not yet reported; it is set forth 
in the Appendix hereto, infra, p. la. The decision of the 
United States District Court for the Western District of 
Louisiana is reported at 295 F.Supp. 578, and is set forth 
in the Appendix, infra, pp. 3a-19a and in the record at 
pp. 19-37.



2

Jurisdiction

The judgment of the United States Court of Appeals 
for the Fifth Circuit was entered on September 5, 1969. 
Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 
§ 1254(1).

Question Presented

Whether a federal court should award attorneys’ fees 
in a class action to desegregate a racially dual school 
system where the School Board, still maintaining its 
segregated system fifteen years after Brown v. Board of 
Education, discharges Negro teachers because of race and 
resists compliance with its plainest constitutional obliga­
tions.

Constitutional Provision Involved

This case involves Section I of the Fourteenth Amend­
ment to the Constitution of the United States.

Statement

This school desegregation case was filed on August 20, 
1965 as a class action on behalf of the Negro students in 
Madison Parish, Louisiana. Until that time, the Madison 
Parish School Board had simply ignored the Brown deci­
sion1 and the Court’s direction in Brown IP  that the transi- 1 2

1 Brown v. Board of Education, 347 U.S. 483 (1954).
2 Brown v. Board of Education, 349 U.S. 294 (1955).



3

tion to a non-raeial system be effected with all deliberate 
speed.3

Two years after the filing of suit, with no progress 
toward desegregation, the district court, on April 7, 1967, 
entered a decree conforming to the comprehensive model 
decree mandated by the Fifth Circuit Court of Appeals 
in the Jefferson County case.4

On June 28, 1968, petitioners moved for further relief 
in the district court, seeking to enjoin the School Board 
from eliminating Negro teachers from the school system. 
At the hearing held on July 24, 1968, it was shown that 
during the school year 1967-68, the School Board had 
employed 151 black teachers and 73 white teachers (R. 
167).5 However, for the 1968-69 school year, the Board 
drastically reduced the number of black teachers by 14 
to a total of 137, while increasing the number of white 
teachers by 8 to a total of 81 (R. 172). At the same time 
the School Board was dismissing experienced black teach­
ers, it was hiring white teachers with no teaching ex­
perience (R. 83-84). Almost all of the new white teachers

3 The School Board is still resisting the transition to a unitary 
system. On May 28, 1969, the Fifth Circuit Court of Appeals held 
that the “freedom of choice” plan adhered to by the School Board 
was not adequate to disestablish segregated schools, and directed 
the School Board to file a new plan. Hall v. St. Helena Parish
School Board, ------  F.2d ------  (5th Cir. 1969). Despite the fact
that only 2.6% of the Negro students in Madison Parish attended 
predominantly white schools under the freedom of choice plan and 
no white students attended any of the five all-black schools (Cf. 
Green v. County School Board of New Kent County, Virginia, 
391 U.S. 430 (1968)), the School Board has petitioned this Court 
for a Writ of Certiorari to review the Fifth Circuit’s judgment 
(No. 466, October Term, 1969).

4 United States v. Jefferson County Board of Education, 372 
F.2d 836, aff’d with modifications on rehearing en banc, 380 F.2d 
385, cert, denied sub nom. Caddo Parish School Board v. United 
States, 389 U.S. 840 (1967).

5 References are to pages of the transcript of record.



4

were recruited from outside Louisiana, but no new black 
teachers were recruited (R. 88). The Board never offered 
an explanation for this sudden shift in the racial composi­
tion of its faculty, which coincided with the first significant 
effort to desegregate the faculties of the Madison Parish 
schools.6

The School Board obviously took the step which many 
southern school boards have taken when faced with the 
need to integrate their schools—it fired many of its black 
teachers and hired inexperienced white teachers to take 
their place.7 The Fifth Circuit, however, had foreseen this 
problem and provided rather specific teacher protections 
in the Jefferson decree. The decree provided not only that 
teachers could not be dismissed on the ground of race, but 
also that where any teachers would be displaced as a result 
of desegregation, no vacancy in the entire school system 
could be filled through recruitment from outside the system 
unless no displaced teacher was qualified to fill the vacancy. 
380 F.2d at 394. Moreover, where as a result of desegre­
gation there would be a reduction in the total teaching staff 
(as there was in this case), the qualifications of all teachers 
were to be evaluated in selecting the teachers to be released. 
These requirements were completely ignored by the Madi­
son Parish School Board.

6 The School Board had virtually ignored the faculty integra­
tion requirements of the Jefferson decree in 1967-68; during that 
year only one white teacher served in a Negro school and four 
Negro teachers served in white schools (R. 167).

7 This pattern has been observed in many southern school cases. 
See, e.g., North Carolina Teachers Association v. Asheboro City 
Board of Education, 393 F.2d 736 (4th Cir. 1968); Chambers v. 
Hendersonville Board of Education, 364 F.2d 189 (4th Cir. 1966) ; 
Hill v. Franklin County Board of Education, 390 F.2d 583 (6th 
Cir. 1968) ; Bolfe v. County Board of Education of Lincoln 
County, Tennessee, 282 F.Supp. 194 (E.D. Tenn. 1966), aff’d 391 
F.2d 77 (6th Cir. 1968); Wall v. Stanly County Board of Educa­
tion, 378 F.2d 275 (4th Cir. 1967) ; Smith v. Board of Education 
of Morillton School District No. 32, 365 F.2d 770 (8th Cir. 1966).



5

In addition, toward the close of the 1967-68 school year, 
the School Board wrote letters to two Negro teachers at 
an all-black school stating baldly that:

“We are required to place some white teachers in 
all of our former negro schools for the 1968-69 school 
year.

“It is unfortunate that one of them will have to take 
your place. In the event there are later openings that 
you may be able to fill we will let you know.

“If I can assist you in seeking employment elsewhere, 
you have permission to use me as a reference.” (R. 46, 
58, 121-2, 123)

The teachers who received these letters had been informed 
by their principal that they would be dismissed because the 
teaching staff was to be integrated (R. 45, 57-58). The 
teachers then went to the superintendent’s office and asked 
for an explanation (R. 46). They told him that they were 
“elementary teachers and not just Negro teachers” and that 
they would be willing to accept positions in white schools 
(R. 60, 47). Although their teaching ability had never been 
questioned, the superintendent told them that he would not 
transfer them (R. 50, 63, 60).

Before resorting to the court for further relief, peti­
tioners’ counsel called the School Board attorney’s atten­
tion to the wrongful dismissals, but the attorney announced 
that “We don’t mind a lawsuit” (R. 181-2).

At the hearing of this case, the superintendent admitted 
that his letters to the teachers and his attempt to replace 
them with white teachers had been a “mistake” (R. 104, 
112). However, he sought to justify dismissing them on the 
ground that they had not accepted subsequent assignments 
to the “Australia Island” school (R. 103-4,112). This school 
is located on a plantation approximately 60 miles from the



6

town where the teachers had previously taught (E. 48, 113). 
It is a one-room school house with outside latrines and is 
not in good condition (E. 48). It was built and paid for by 
the plantation owner and is not maintained by the School 
Board (E. 113, 114). The teacher at the school is expected 
to teach all eight grades (E. 52). Judge Ben C. Dawkins, 
Jr., in his opinion in this case, characterized the assignment 
of the teachers to the Australia Island School as not unlike 
a “consignment to Siberia” (see infra, p. 8a).

On January 28, 1969, Judge Dawkins found that the 
dismissals of the black teachers “ obviously were wrong” 
and the School Board’s steps to “remedy” the dismissals 
were “clumsy” and the superintendent’s defense “trans­
parent” (infra, p. 16a, 19a). The court ordered their rein­
statement and held that they would be awarded any prov­
able damages they had sustained because of their dismissals. 
The court again generally enjoined the School Board from 
trying to eliminate black educators from the school system. 
Yet the court held that counsel fees could not he awarded 
because he did not think the dismissals were “unreasonable 
and obdurately obstinate” (infra, p. 19a).

Petitioners appealed to the Fifth Circuit Court of Ap­
peals from the denial of counsel fees8 and the School Board 
cross-appealed on the merits, although the School Board 
did not argue the merits in the Court of Appeals.

8 Petitioners are represented by private counsel in Baton Rouge, 
Louisiana, associated with salaried attorneys of the NAACP Legal 
Defense and Educational Fund, Inc., a non-profit civil rights 
organization dedicated to the vindication through the courts of the 
rights of the Nation’s black citizens. Legal Defense Fund attor­
neys, in association with private counsel in Richmond, Virginia, 
also represent the petitioners in Walker v. County School Board 
of Brunswick County, Virginia, and Hawthorne v. County School 
Board of Lunenburg County, Virginia. A  petition for writ of cer­
tiorari in those cases, involving issues closely related to the instant 
ease, is being filed concurrently herewith.



7

On September 5, 1969, the Court of Appeals rendered a 
decision affirming the denial of counsel fees. The Court of 
Appeals noted that the trial court had found that the 
teacher dismissals were not “unreasonable and obdurately 
obstinate” and the Court said that it found no “compelling 
circumstances to justify overturning the trial court’s dis­
cretion in refusing to award attorneys’ fees” {infra, p. 2a).

REASONS FOR GRANTING THE WRIT

I.
Introduction: Importance of the Issue

This Court’s recent decision in Alexander v. Holmes 
County Board of Education, No. 632 (October 29, 1969), 
made it clear that school boards must convert “at once” to 
unitary school systems and that further judicial or ad­
ministrative delay is not to be tolerated. The decision could 
not, however, foreclose all avenues of further litigation by 
school boards seeking to escape compliance with the sub­
stantive requirements of Brown. Many school boards, in­
cluding respondent, will continue to litigate rather than 
integrate, to argue that their weak and inadequate de­
segregation plans meet constitutional standards ;9 and many 
will continue to engage in the kind of racial discrimination 
revealed by the record in this case—unless the procedure 
for enforcing the right to an integrated education includes 
adequate sanctions to discourage those who by litigation 
seek to nullify the right. We submit that counsel fee awards 
constitute an appropriate method. Now that Alexander has 
established that procedure is all-important in finally ful­

9 The Madison Parish School Board, with 97.4% of its black 
students in its 5 all-black schools, is still seeking to persuade the 
courts that its “freedom of choice” plan satisfies the obligation to 
create a unitary system' of public schools. See note 3, supra.



8

filling the promise of Brown, we submit that the time has 
come for the Court to consider the effectiveness of counsel 
fee awards as a useful procedure in bringing about substan­
tive compliance with Brown.

This Court has never spoken to whether and in what cir­
cumstances counsel fees should be awarded in school de­
segregation cases or considered the effect of counsel fee 
awards on the enforcement of Brown. Consequently, lower 
courts have come up with standards like “unreasonable and 
obdurately obstinate.” (See infra, pp. 2a, 19a.)

We submit that counsel fees should have been awarded 
in the circumstances of this case. We further submit that 
the standard applied by Judge Dawkins and approved by 
the Court of Appeals is no longer appropriate in school 
desegregation cases—that is, Negro plaintiffs should not 
have to prove, 15 years after Brown, that when a school 
board resists compliance with the plainest legal obligations, 
its particular action is “unreasonable and obdurately ob­
stinate.”

Indeed, we believe that any action by a school board to 
frustrate rights established by Brown should per se support 
an award of counsel fees. School boards would thus be de­
terred from cluttering the federal courts with endless and 
unnecessary litigation on every detail of the desegregation 
process. It requires no citation of authority to state that 
court dockets are already so overloaded that justice is fre­
quently denied by being deferred in the general run of eases 
—not merely integration cases. Efficient judicial adminis­
tration alone requires that school litigation cease requiring 
the disproportionate attention of federal courts in the 
South, so that other litigants can have their day in court 
and so that Negro school children can become part of a 
unitary educational system instead of our court system.



9

Counsel Fees Should Have Been Awarded in This 
Case as a Matter of Complete Equitable Relief.

No statute explicitly authorizes fees in a school desegre­
gation case. Compare Neivman v. Piggie Parle Enterprises, 
Inc., 390 U.S. 400 (1968). But it is well established that the 
federal courts have equitable power to award attorneys’ 
fees in appropriate cases. See Vaughn v. Atkinson, 366 U.S. 
567 (1962); Sprague v. Ticonic National Bank, 307 U.S. 161 
(1939); Newman v. Piggie Park Enterprises, Inc., supra, at 
402, n.4. This power has been exercised in cases involving 
dismissals of Negro teachers. See Hill v. Franklin County 
Board of Education, 390 F.2d 583, 585 (6th Cir. 1968); 
Rolfe v. County Board of Education of Lincoln County, 
Tennessee, 282 P.Supp. 194 (E.D. Tenn. 1966), aff’d 391 
F.2d 77 (6th Cir. 1968).

Furthermore, this ease was brought as a class action on 
behalf of the Negro students of Madison Parish. The stu­
dents have a right to a faculty not chosen on the basis of 
race.10 11 Thus, the proceeding was brought not only to pro­
tect the rights of individual black teachers, but on behalf of 
the class to protect their constitutional rights. The proceed­
ing is private in form only—petitioners acted as “private 
attorneys general” in vindicating the rights of the class and 
furthering the public policy of the nation of eliminating 
racial discrimination in the schools. Cf. Newma/n v. Piggie 
Park Enterprises, Inc., 390 U.S. 400, 402 (1968).11

10 See Jefferson County, supra, 372 F.2d 836, 892-4; Bradley v. 
Board of Education, 382 U.S. 103 (1965); Bogers v. Paul, 382 
U.S. 198 (1965).

11 As Judge Weinstein has noted, “ The Rule 23 class action ‘as a 
way of redressing group wrongs is a semi-public remedy admin­
istered by the lawyer in private practice’-—a cross between admin­
istrative action and private litigation.” Dolgow v. Anderson, 43 
F.R.D. 472, 481 (E.D. N.Y. 1968).

II.



10

The main purpose of the American rule generally dis­
allowing counsel fees is to avoid discouraging use of the 
courts for the resolution of bona fide disputes. However, 
this purpose is not served by a trial of the issues “where the 
law is clear and the facts free from ambiguity.” Comment, 
77 Harv. L.Rev. 1135,1138 (1964). In a case like the instant 
one, forcing petitioners to sue to enforce their rights under 
“clear facts and strong recent precedent seems an abuse of 
the remedial system.” Id. Here, the district court in effect 
found that the School Board was in clear contempt of the 
court’s decree. In these circumstances, there should be no 
requirement of a finding that its action was “unreasonable 
and obdurately obstinate.”

This is perhaps an extreme ease, one which rather clearly 
calls for a counsel fee award as a matter of complete equi­
table relief. But even if the School Board’s conduct were 
not so outrageous, we submit that the Court ought now to 
make it clear to recalcitrant school boards that their con­
stitutional obligations cannot be shirked. Again and again 
the lower courts have been required to consider cases, such 
as this one,12 where the law and facts are perfectly clear 
but where the school board simply will not budge without a 
court order. As the Civil Rights Commission has noted, 
federal district judges are not willing to hold school boards 
in contempt; as a result, “many school districts have flouted 
court orders with impunity, and the ever stricter pronounce­

12 The instant ease has been considered twice by the Fifth Cir­
cuit, and the district court has been compelled to issue numerous 
orders (R. 3-18). As the Eighth Circuit has said, where “well- 
known constitutional guarantees continue to be ignored or 
abridged” and Negro plaintiffs are forced to resort to the courts 
for protection, the court should award counsel fees—the Negro 
plaintiffs should not have to bear the “constant and crushing ex­
pense of enforcing their constitutionally accorded rights.”  Clark 
v. Board of Education of Little Bock School District, 369 F 2d 
661, 671 (8th Cir. 1966).



11

ments of appellate courts have been, in practice, a matter 
of little concern to them.” See Beport of the United States 
Civil Bights Commission, Federal Enforcement of School 
Desegregation, 12 (September 11, 1969). This situation is 
no longer tolerable. It puts the burden of expensive litiga­
tion on the Negro school children and their lawyers. The 
rights of the school children are not vindicated unless at­
torneys or legal service organizations are available to serve 
without fee and subsidize the expenses of litigation.13 There 
will inevitably be many cases where there are no attorneys 
in a position to exercise the diligence essential to protect­
ing the rights of the children.14 * The only just solution is to 
impose the expense of unnecessary desegregation litigation 
on the party causing the expense—the recalcitrant school

13 Civil rights cases ordinarily do not generate legal fees, con­
tingent or otherwise. See generally, on problems of representation 
in civil rights cases, Sanders v. Bussell, 401 F.2d 241 (5th Cir. 
1968). As to representation by legal service organizations, Senator 
Hart made the following comments on the counsel fees provision 
of the Fair Housing Act of 1968:

Frequently indigent plaintiffs are represented by legal asso­
ciations, acting as “ private attorneys general” in the vindica­
tion of important constitutional and statutorily created rights. 
It would be most anomalous if courts were permitted to deny 
these costs, fees, and damages to an obviously indigent plain­
tiff, simply because he was represented by a legal association. 
I think it should be clearly understood that this representa­
tion in no way limits a plaintiff’s right of recovery. 114 Cong. 
Rec. S2308 (daily ed. March 6, 1968).

See also Sanders v. Bussell, supra, at 244, n. 5.
14 This Court has previously remarked the difficulty in finding 

lawyers to bring unprofitable and unpopular civil rights cases. 
See NAACP  v. Button, 371 U.S. 415, 443 (1963). The Civil Rights
Commission, noting the inadequacy of present federal enforcement 
of school desegregation, said “to the extent that this will remain 
true in the future, black families will be forced, once again, to 
shoulder the burden of finding a lawyer willing to sue to deseg­
regate the schools in their area.” Report of the United States Civil 
Rights Commission, Federal Enforcement of School Desegregation, 
28 (September 11, 1969).



12

board—and to reward the “private attorney general” (New­
man, supra, 393 U.S. at 402) for performing the public 
function of eradicating unconstitutional discrimination in 
the schools.16

In other words, an award of counsel fees is an important 
and effective enforcement tool. It would serve the salutary 
purposes of inducing the school board to live up to its clear 
obligations and of removing from the courts unnecessary 
litigation occasioned by clearly unconstitutional conduct. 
What is needed is an effective deterrent to the systematic 
elimination of Negro teachers revealed by this record and 
to the continuing refusal to recognize without further litiga­
tion that court decrees mean what they say. We believe 
that the imposition of attorneys’ fees will go a long way 
toward meeting those needs. We submit that the Court 
should grant certiorari to determine, for the first time, in 
what circumstances fees should be imposed.

16 Awarding counsel fees to encourage “ public” litigation by 
private parties is an accepted device. For example, in Oregon, 
union members who succeed in suing union officials guilty of wrong­
doing are entitled to counsel fees both at the trial level and on 
appeal, because they are protecting an interest of the general 
public:

I f  those who wish to preserve the internal democracy of the 
union are required to pay out of their own pockets the cost of 
employing counsel, they are not apt to take legal action to 
correct the abuse. . . . The allowance of attorneys’ fees both 
in the trial court and on appeal will tend to encourage union 
members to bring into court their complaints of union mis­
management and thus the public interest as well as the interest 
of the union will be served.

Gilbert v. Hoisting & Portable Engineers, 237 Or. 139, 390 P.2d 
320 (1964). See also Bolax v. Atlantic Coast Line B.B ., 186 F 2d 
473 (4th Cir. 1951).



13

CONCLUSION

W herefore, petitioners pray that the petition for a Writ 
of Certiorari be granted.

Respectfully submitted,

Jack Greenberg 
James M. Nabrit III 
W illiam Bennett T urner 

10 Columbus Circle 
New York, New York 10019

Murphy W. Bell

214 East Boulevard 
Baton Rouge, Louisiana

Attorneys for Petitioners



APPENDIX



I n  the

UNITED STATES COURT OF APPEALS 

F oe the F ifth Ciecuit

Opinion of the Court of Appeals for the Fifth Circuit

No. 27550

Summary Calendar

L inda W illiams, et al.,

Plaintiff s-Appellants-Cross Appellees,

—versus—

George K imbrough, et al.,

Defendants-Appellees-Cross Appellants.

APPE A LS FRO M  T H E  U N IT E D  STATES D IST R IC T  COURT 

FOR T H E  W E ST E R N  DISTRICT OF L O U ISIA N A

(September 5, 1969)

Before
W isdom , Coleman  and S im pso n ,

Circuit Judges.

Per Curiam: Pursuant to new Rule 18 of the Rules of 
this Court, we have concluded on the merits that this case 
is of such character as not to justify oral argument and have 
directed the Clerk to place the case on the Summary Calen­
dar and to notify the parties in writing. See Murphy v. 
Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I.



2a

The district court held that four Negro teachers employed 
by the Madison Parish school system had been dismissed 
in violation of the holding in United States v. Jefferson 
County Board of Education, 372 F.2d 836, aff’d with mod­
ifications on rehearing en banc, 380 F.2d 385, cert, denied 
sub nom., Caddo Parish Sch. Bd. v. United States, 389 TJ.S. 
840, 88 S.Ct. 66, 19 L.Ed.2d 103 (1967). In so holding, the 
district court denied the school teachers’ motion for attor­
neys’ fees. That denial is the sole question raised on appeal.

Attorneys’ fees are historically beyond the scope of tax­
able costs. Globemaster, Inc. v. Magic Am. Corp., 6 Cir. 
1967, 386 F.2d 420. Their award necessarily requires a 
permitting statute,1 a contractual obligation, or an equitable 
discretion in the trial court. Brisacher v. Tracy Collins 
Trust Company, 10 Cir. 1960, 277 F.2d 519.

The trial court found that the teachers’ dismissals were 
not “unreasonable and obdurately obstinate” and accord­
ingly did not tax attorneys’ fees against the school board. 
See Bradley v. School Board of City of Richmond, Virginia,
4 Cir. 1965, 345 F.2d 310. We find no compelling circum­
stances to justify overturning the trial court’s discretion in 
refusing to award attorneys’ fees. We affirm. See Kemp v. 
Beasley, 8 Cir. 1965, 352 F.2cl 14; Harrington v. Texaco,
5 Cir. 1964, 339 F.2d 814.

A ffirmed.

Opinion of the Court of Appeals for the Fifth Circuit

1 The Civil Rights Act of 1964, Title II, specifically allows attor­
neys’ fees in cases filed to redress discrimination in Public Accom­
modation Actions. The Act provides no legal basis for attorneys’ 
fees in school desegregation cases. Kemp v. Beasley, supra.

Adm. Office, U.S. Courts— Scofields’ Quality Printers, Ine., N. O.,
La.



3a

Filed January 28, 1969.

I n the

UNITED STATES DISTRICT COURT 

F or the W estern D istrict of L ouisiana 

M onroe Division

Decision of District Court

L inda W illiams, by her father and next friend, 
M artin W illiams,

vs.

George K imbrough, President, School Board of Madison 
Parish; Madison Parish School B oard ; and M. A. Phil­

lips, Superintendent of Schools of Madison Parish.

Civil Action No. 11,329
For Plaintiff—

Messrs. Murphy W. Bell, 214 East Boulevard, Baton 
Rouge, Louisiana 70802.

Jack Greenberg, Norman Amaker, and William Bennett 
Turner, 10 Columbus Circle, New York, New York 10019.

For Defendants—
Jack P. F. Gremillion, Attorney General of Louisiana ; 
Carroll Buck and Harry Kron, Assistants to the Attor­

ney General of Louisiana, State Capitol Building, Baton 
Rouge, Louisiana 70804.



4a

Thompson L. Clarke, District Attorney, Sixth Judicial 
District, Post Office Box 108, St. Joseph, Louisiana 71366.

Ben C. Dawkins, Jr., Chief Judge.

Four former elementary school teachers, of the Negro 
race, seek intervention in this action, alleging that defen­
dants dismissed them from professional employment as 
such in violation, first, of an earlier order of this Court 
implementing the model school desegregation decree in 
United States v. Jefferson County Board of Education, 372 
F.2d 836, affirmed with modification on rehearing en banc, 
380 F.2d 385, cert. den. sub nom. Caddo Parish School Board 
v. United States, 389 U.S. 840 (1967); and second, in viola­
tion of their rights under the equal protection and due proc­
ess clauses of the Fourteenth Amendment.

This suit, which originally was filed August 20, 1965, as 
a class action on behalf of Negro students in Madison 
Parish, sought injunctive relief against defendants’ opera­
tion and administration of its public schools on a racially 
discriminatory basis. All that heretofore has transpired in 
this action, now before the United States Court of Appeals, 
Fifth Circuit, is not relevant here and thus need not be 
related. In its present aspects, however, there is involved 
a portion of our April 7, 1967 decree, conforming exactly 
with the model decree set forth in Jefferson. Section 
VIII(b) of that decree reads:

“ (b) Dismissals. Teachers and other professional 
staff members may not be discriminatorily assigned, 
dismissed, demoted, or passed over for retention, pro­
motion, or rehiring, on the ground of race or color. 
In any instance where one or more teachers or other 
professional staff members are to be displaced as a re­
sult of desegregation, no staff vacancy in the school sys­

Decision of District Court



Decision of District Court

tem shall be filled through recruitment from, outside the 
system unless no such displaced staff member is quali­
fied to fill the vacancy. If, as a result of desegregation, 
there is to be a reduction in the total professional staff 
of the school system, the qualifications of all staff mem­
bers in, the system shall be evaluated in selecting the 
staff member to be released without consideration of 
race or color. A  report containing any such proposed 
dismissals, and the reasons therefor, shall he filed with 
the Clerk of the Court, serving copies upon opposing 
counsel, within five (5) days after such dismissal, de­
motion, etc., as proposed.” (Emphasis added.)

June 28, 1968, plaintiffs and Mrs. Nella Williams, Mrs. 
Doris Cockerham, Mr. Hosea Atkins, and Mrs. Flora Martin 
filed a motion to add them as intervening plaintiffs. The 
motion also sought further relief, as set forth infra. The 
motion alleged that Williams, Cockerham, Atkins, and Mar­
tin were Negro teachers dismissed from their teaching posi­
tions in violation of that portion of our order of April 7, 
1967, and of the equal protection and due process clauses 
of the Fourteenth Amendment. The prayer for relief 
sought, inter alia, immediately reinstatement to their teach­
ing positions, an award of back pay, together with com­
pensation for any loss suffered by them as a result of their 
allegedly unlawful discharge, plus reasonable attorneys’ 
fees.

A  hearing was held on this motion July 24, 1968. The 
record was later supplemented by an oral deposition given 
by Brutus Noland Jackson, principal of Wright Elementary 
School in Tallulah, Louisiana, (Wright), a formerly all- 
Negro school where all movants here were teaching at the 
time of their dismissals.



6a

The combined motion for further relief and for addition 
of the four teachers mentioned as intervening plaintiffs, in 
effect, has as its principal object the enforcement of our 
April 7, 1967, decree, as set forth supra. Thus there are 
“question(s) of law or fact in common,” Rule 24(h), 
F.R.Civ.P.; and since allowing this intervention would not 
“unduly delay or prejudice the adjudication of the rights of 
the original parties,” the motion for intervention, timely 
filed, therefore is granted.

Before proceeding to discussion of the facts surrounding 
each dismissal, the following background information should 
be set forth. At the time of the dismissals, none of the 
teachers here had taught the necessary three years to ac­
quire tenure status under Louisiana law. Thus by L.S.A.- 
R.S. 17:442, they could be dismissed simply “upon the writ­
ten recommendation of the parish or city superintendent 
of schools, as the case may be, accompanied by valid reasons 
therefor.” (Emphasis added.)

Each of the dismissals took place in the spring of 1968, 
when the School Board (Board) was preparing for faculty 
integration for the following year, as ordered. In the 1968- 
69 school year, all schools in Madison Parish, except two,1 
either integrated their faculties for the first time or in­
creased their numbers of teachers of the opposite race. It 
is particularly noteworthy that Wright had no white teach­
ers in 1967-68 school year, but employed four for the 1968- 
69 school year.

Decision of District Court

1 Both Tallulah Elementary and Tallulah High had two Negro 
teachers in the 1967-68 school year and two in the 1968-69 school 
year.



7a

Nella Williams and Doris Cockerham

Both Williams and Cockerham were hired by Board in 
January of 1966 to teach at Wright, where they remained 
during their entire employment. Williams had graduated 
from Southern University in 1963, and had been certified 
by the education department of Louisiana to teach ele­
mentary grades in the same year. Before coming to the 
defendant school system, she had taught elementary grades 
in Jackson Parish, Louisiana.

At no time were the teaching performances of Williams 
or Cockerham ever questioned by any one connected with 
Wright or Board.

April 30, 1968, Jackson, Principal of Wright, at different 
times called Williams to his office; and then Cockerham. 
It is undisputed that he then told them that integration of 
Wright had made necessary the replacement of each of 
them by white teachers. Thereafter Williams and Cocker­
ham received identical letters from M. A. Phillips, Superin­
tendent of Board, dated May 7, 1968, which read:

“We are required to place some white teachers in all 
of our former negro schools for the 1968-69 school year.

“It is unfortunate that one of them will have to take 
your place. In the event there are later openings that 
you may be able to fill we will let you know.

“If I can assist you in seeking employment else­
where, you have permission to use me as a reference.”

Shortly after receiving these letters, Williams and Cock­
erham, along with Martin, went to see Phillips about their 
dismissals. They explained that they were “ elementary 
teachers, and not just Negro teachers,” and thus would be

Decision of District Court



8a

willing to accept positions in a white school. Phillips again 
confirmed that Williams and Cockerham had been replaced 
by white teachers. He further advised that it was against 
Board’s policy to transfer replaced teachers.

Shortly after the teachers left, an aide of Phillips, who 
had overheard the discussion, advised Phillips that his 
actions with reference to the replaced teachers were in 
violation of our April 7, 1967, order. Phillips, by his own 
testimony, conceded this mistake and thus sought to 
“remedy” it with the following action.

May 15, 1968, and May 24, 1968, he sent Cockerham and 
Williams, respectively, letters notifying them that they had 
been assigned to Anderson Island School. This—not unlike 
a consignment to Siberia—is a one-room school located on a 
plantation approximately 60 miles from Tallulah, Louisiana. 
All of its twenty-three students are Negroes. At time of 
hearing they ranged from grades 1 through 8. The one 
teacher there was and is expected to teach all grades. The 
School was built and paid for by the plantation owner, who, 
instead of Board, maintains the building and surrounding 
grounds. While there is a room connected with the school 
where a teacher could live, there are no suitable living ac­
commodations for a teacher with a family, or for two 
teachers. According to Williams, who visited the school 
after being informed of her “assignment” there, the building 
was “not in the best condition,” and was closed at the time 
because of high grass surrounding it.

In effect, Williams and Cockerham were given the 
“choice” of taking the Anderson Island position or being 
dismissed from Board’s system. Each chose the latter.

Decision of District Court



9a

Decision of District Court 

Ho sea Atkins

Atkins was teaching the fourth grade at Wright at the 
time of his dismissal.2 On or about April 19, 1968, he re­
ceived from Phillips a letter addressed to him. Attached 
to it was a copy of a letter from Phillips to Board. The 
letter to Atkins read:

“Dear Mr. Atkins:

“Enclosed herewith is a copy of the letter I am sub­
mitting to the Madison Parish School at its next 
meeting.”

Phillip’s letter to Board read:

“Dear School Board Members:

“It is my recommendation that Mr. Hosea Atkins not 
be re-employed as a teacher in the Madison Parish 
Schools for 1968-69 as his work has not been satisfac­
tory.”

At the hearing, Phillips testified that the sole reason for 
Atkins’ dismissal in April of 1968 was his unsatisfactory 
conduct on a Field trip in the spring of 1967. According to 
Phillips, when the trip was made, the fourth grade at 
Wright had just completed a study of Holland. The Field 
trip was to Dutch Gardens, a public park in Louisiana, 
built in the likeness of the geography and culture of Hol­
land, and therefore was deemed appropriate.

2 Atkins did not appear at the hearing and there is no other evi­
dence in the record as to when Atkins was hired or what his prior 
teaching experience might have been.



Decision of District Court

Atkins was among seven or eight teachers who accom­
panied the pupils and were responsible for their supervision 
and behavior. At Dutch Gardens, the children became quite 
unruly, destroying some of the property. This incident was 
embarrassing to Board, particularly since it happened while 
five dignitaries from foreign countries were visiting the 
park. Phillips testified that he learned from others that 
Atkins had told people connected with management of 
Dutch Gardens that he was not responsible for such pupil 
misbehavior. Since Phillips felt that all teachers shared 
responsibility for the incident, he was displeased with At­
kins’ disavowal. Phillips said he “ felt obliged” to keep 
Atkins through the following school year, but when the 
matter of Atkins’ employment came up in the spring of 
1968, he felt that this incident provided sufficient basis for 
recommending that Atkins not be employed the following 
year.

From testimony at the hearing, it is clear that Phillips 
did not know whether any of the misbehaving pupils were 
from Atkins’ class, nor did he know whether Atkins was 
in any way actually negligent in the performance of his 
duties at Dutch Gardens. Moreover, Phillips had called into 
his office all teachers involved, shortly after the incident, and 
at a time when he had been informed of Atkins’ denial of 
responsibility. At this meeting Phillips did not mention to 
Atkins his particular dissatisfaction with Atkins’ conduct, 
nor, for that matter, has he ever, before or after the dis­
missal, informed Atkins that his conduct there was un­
satisfactory.

Since Atkins did not appear at the hearing, Phillips’ 
testimony was the only evidence presented with reference



11a

to this dismissal. It is also noted that the record is totally 
void of any other evidence of allegedly unsatisfactory pro­
fessional performance by Atkins.

Flora Martin

Martin began teaching at Wright in January of 1966. 
At that time she did not have a Teacher’s Certificate, 
because, while she had finished her courses at Grumbling 
College, she had failed to make the required score on the 
National Teacher’s Examination. Later, however, she 
passed that test, and September 30, 1966, she received her 
final diploma from Grambling.

According to Martin, .Jackson together with Frances 
Robinson, elementary supervisor at Wright, visited her 
classroom on several occasions during her employment 
there.8 These visits normally lasted about twenty minutes. 
Robinson never mentioned to Martin how her performance 
was rated. Jackson, however, did discuss the matter with 
her. Martin testified that Jackson always offered sug­
gestions for improvement, but never told her that her 
performance was unsatisfactory.

Martin said that in March of 1968, her classroom was
visited by Ernestine Kinchen, a reading specialist; that 
Kin chert administered a reading test to the class; that 
Kinchen told her the results of this test were good; and 
that Kinchen made no mention of her teaching perfor­
mance, one way or another.

About April 19, 1968, she received from Phillips a letter 
addressed to her, along with a copy of a letter from 3 *

3 Martin testified that to the best of her recollection, three such
visits were made during her employment at Wright,

Decision of District Court



12a

Phillips to Board, both of which were exactly like those 
sent to Atkins.

Soon after receiving this letter, Martin visited with 
Jackson. Her testimony about that visit was as follows:

“I told him (Jackson), I says, ‘I got a letter and I 
would like for you to tell me what is going on around 
here because I don’t know.’

“He said, ‘What kind of letter did you get?’
“So, I told him.
“He said, ‘What did it say?’
“And I said it was a letter saying I will not be re­

employed for the 1968-69 school session and I would
like to know why.

“He said, ‘Mrs. Martin, I don’t know what was in 
the letter but I do know it was being in the process 
of being sent to you but how it was worded, I don’t 
know.’ He said, ‘You are not being fired from me, 
but you were hired at the time under the Federal plan.’ 
And he said, ‘Due to the changes that we had to in­
tegrate the schools and, therefore, we had to get 
white teachers to bring in to fill your position.’

“He said, ’You were one of the victims that had to
be dismissed.’

“He said, ‘But you are not being fired?
“He said, ‘I will recommend you anywhere you need 

to go to get another job.’ ”  [Emphasis added.]

Martin, along with Williams and Cockerham, then pro­
ceeded to Phillips’s office to discuss the matter further. 
After listening to Williams and Cockerham discuss their 
dismissals with Phillips, Martin inquired as to the reason 
for her dismissal. According to Martin, Phillips replied:

Decision of District Court



13a

“He said, ‘I have people going over there to see 
what is going on and we just didn’t want you any­
way.’ ”

Phillips testified that his recommendation that Martin 
be dismissed was based solely on Jackson’s recommenda­
tion. Although Jackson did not testify at the hearing be­
fore this Court, his oral deposition was taken subsequently 
and made part of the record. That deposition constitutes 
the sole source of evidence as to the allegedly specific rea­
sons for Martin’s dismissal.

In his deposition, Jackson discussed at great length the 
Martin dismissal. He said that she had taught the first, 
second, and third grades at Wright; that in the spring of 
1967, at the completion of Martin’s first full year, Jackson 
believed that her teaching performance was not satisfac­
tory but that he recommended her retention because he 
believed that “ she was bog'ged down in family problems, 
and that she would snap out of this and come around” ; 
that as a result of his recommendation, Martin was em­
ployed for the 1967-68 school year; that in his opinion, 
based solely upon his own observation, Martin did not 
improve during the 1967-68 school year; that he discussed 
the matter of her progress with her supervisor, Robinson, 
and they agreed a reading specialist should be assigned 
to assist her; that the reading specialist, Kinchen, was 
assigned to help; that Kinchen reported to Jackson that 
Martin was unco-operative” ; that as the end of the 1967-68 
school year neared, since Martin had failed to improve, 
Jackson recommended to Phillips that she not be re-em­
ployed. At several points in his deposition, Jackson em­
phasized that this recommendation was based strictly upon

Decision of District Court



14a

Martin’s teaching performance, and had nothing whatever 
to do with faculty integration of Wright. He also cate­
gorically denied ever telling Martin that she was being 
dismissed because of faculty integration; rather he said he 
gave as the reason her unsatisfactory teaching perfor­
mance.

Discussion of the Constitutional Issues.

We recognize that a school board should and does have 
wide latitude, much discretion, in employment and dis­
missals of its faculty members. Beilan v. Board of1 Edu­
cation, 357 IT.S. 399, 2 L.Ed.2d 1414, 78 S.C. 1317 (1958). 
We also are aware of the awesome burdens which fall 
upon a board when its schools are ordered to desegregate. 
Thus we are loath to interfere and override the actions of 
that public body in the exercise of its broad discretionary 
powers and functions. Rackley v. School District No. 5, 
Orangeburg County, S.C., 258 F.Supp. 676, 684 (S.C. 1966).

We may not overlook, however, the many recent cases 
illustrating the equal protection and due process rights of 
teachers who seem to fall victims o f faculty desegregation.* * * 4 
Nor can we overlook the clear letter and spirit of our April 
7, 1967, model Jefferson decree, which the Fifth Circuit 
required us to enter and is itself based on the equal pro­

's Walton v. Nashville, Arkansas, Special Sell. Dist. No. 1, 401 
F 2d 137 (8 Cir. 1968); North Carolina Teachers Association v. 
Asheboro City Bd. of Ed., 393 F.2d 736 (4 Cir. 1968) ; Rolfe v. 
County Bd. of Ed. of Lincoln County, Tenn., 282 F.Supp. 192
(E.D. Tenn. 1966), aff’d 391 F.2d 77 (6 Cir. 1968) ; Wall v. Stanly 
County Bd. of Ed., 378 F.2d 275 (4 Cir. 1967) ; Smith v. Bd. of 
Ed. of Morrilton Sch. Dist. No. 32, 365 F.2d 770 (8 Cir. 1966) ;
Chambers v. Hendersonville City Bd. of Ed., 364 F.2d 189 (4 Cir.
1966) ; Johnson v. Branch, 364 F.2d 177 (4 Cir. 1966) ; Teel v. 
Pitt County Bd. of Ed., 272 F.Supp. 703 (E.D. N.C. 1967).

Decision of District Court



15a

tection and due process clauses of the Fourteenth Amend­
ment.

We find that the cases cited in the margin (fn. 4), when 
considered in light of Jefferson, established that these 
clauses of the Fourteenth Amendment require that the 
following rules be applied when a teacher is displaced as 
a result of faculty desegregation.5

The qualifications of all teachers in the system must be 
evaluated by objective standards, resulting in dismissal 
only of the least qualified. The fact that a teacher has not 
acquired tenure status under State law properly may be a 
factor in this comparison. Parker v. Board of Education 
of Prince George’s County, Md., 237 F.Supp. 222 (Md. 
1965), aff’d 348 F.2d 464 (4 Cir. 1965). This, however, may 
not be used as the only basis upon which to discriminate 
against teachers serving on a faculty which is being de­
segregated. School boards in States having tenure legis­
lation should:

“ * # * establish definite objective standards for the 
employment and retention of teachers and to apply 
such standards to all tenure teachers, on the one hand, 
and non-tenure teachers, on the other, consistently with 
the due process and equal protection clauses of the 
Constitution of the United States.” 5a

Decision of District Court

6 Displacement can result not only when teachers of different 
races are exchanged on a one-for-one basis. It often is the case 
that school consolidation, such as by freedom of choice plans, make 
possible a reduction and a savings in the over-all teaching staff. 
See, e.g., Walton v. Nashville, Ark., Special Sch. Dist. No. 1, 401 
F.2d 137, 142 (8 Cir. 1968) ; Smith v. Bd. of Ed. of Morrilton 
School Dist. No. 32, 365 F.2d 770, 774-775 (8 Cir. 1966).

6a Rolfe v. County Bd. of Ed. of Lincoln Co., Tenn., 282 F.Supp. 
192, 200 (E.D. Tenn. 1966, aff’d 391 F.2d 77 (6th Cir. 1968).



16a

Tims we first must determine whether the intervener 
teachers here were dismissed as a result of faculty deseg­
regation. If they were, then the constitutional standards 
set forth must have been met. With regard to whether 
the dismissals were the result of such faculty desegrega­
tion, we must accept the current jurisprudence found in 
North Carolina Teachers Association v. Asheboro City 
Board of Education, 393 F.2d 736 (4 Cir. 1968); Rolfe v. 
County Board of Education of Lincoln County, Tenn., 282 
F.Supp. 192 (E.D. Tenn. 1966), aff’d 391 F. 2d 77 (6 Cir. 
1968); Chambers v. Hendersonville City Board of Educa­
tion, 364 F. 2d 189 (4 Cir. 1966); Wall v. Stanly County 
Board of Education, 378 F.2d 275 (4 Cir. 1967).

Which is to say that a long history of racial discrimina­
tion, coupled with disproportionate discharges in the ranks 
of Negro teachers where desegregation finally is begun, 
gives rise to a rather strong inference of discrimination 
in failure to re-employ Negro teachers in other schools. 
Such circumstances cast the burden of proof on school 
boards to show that failure to rehire was for non-diserim- 
inatory reasons, and require that such proof be clear and 
convincing, before failure to re-employ may be upheld.

Here we hold that Board failed to meet that burden with 
respect to any of the dismissals before us.

Clearly Williams’s and Cockerman’s dismissals were the 
result of faculty desegregation. Phillips admitted that he 
so informed the teachers that this was so, by letter and 
in person. His rather clumsy attempts to “remedy” such 
discriminatory dismissals by giving these teachers a choice 
of Anderson Island or dismissal amounted to nothing less 
than a “Hobson’s choice,” so transparent that we must 
regard his “reasons” as transparently wrong.

Decision of District Court



17a

The “facts” asserted, by Phillips for his dismissal of 
Atkins were neither “clear” nor “convincing.” We cannot 
concede that any school administrator would dismiss a 
teacher, who apparently was completely satisfactory other­
wise, for such a flimsy reason as the Dutch Gardens inci­
dent. By his own testimony, Phillips had no substantial 
basis on which to conclude that Atkins did not normally 
exercise required supervision of students, such as at Dutch 
Gardens. He said he did not recall whether Atkins’s pupils 
misbehaved. Moreover, even if that incident could provide 
a substantial basis for dismissal, why did not Phillips dis­
miss Atkins after the incident, a year earlier, in the spring 
of 1967? Instead, he waited until April of 1968. And if 
this incident so raised Phillips’s ire, we must inquire, rea­
sonably, as to why did he at no time advise Atkins of his 
alleged failure.

The most difficult case here is that of Martin. In his 
deposition, Jackson advanced reasons, unrelated to faculty 
desegregation, for Martin’s dismissal. In conflict with prac­
tically everything therein, however, was Martin’s testimony. 
To resolve these conflicts, we would have welcomed the 
testimony of Frances Robinson, Martin’s supervisor, or 
Ernestine Kinchen, the reading specialist; but neither of 
them was presented as a witness for Board, nor were their 
depositions taken. On this record, their professional views 
are totally missing.

In this regard, we cannot overlook that Wright was, at 
the time of the dismissals, suffering from over-staffing, a 
problem frequently arising when school consolidations 
occur;6 nor can we ignore that four white teachers were

Decision of District Court

6 See note 5, supra.



18a

assigned to Wright for the 1968-69 school year, precisely 
the same number of dismissals which occurred in that 
school at the close of the 1967-68 school year, without the 
Negro teachers being given opportunity for assignments 
or transfers to formerly all-white schools.

Considering the entirety of these factors, we must hold 
that Board did not meet its burden of proof with respect to 
Martin.

It is undisputed that Board did not attempt to meet 
the standards of objective comparison required in cases of 
dismissal as the result of faculty desegregation. It appar­
ently compared the four teachers only with other teachers 
at Wright, rather than with all teachers in the system. 
Thus we are bound to hold that their equal protection and 
due process rights, guaranteed by the Fourteenth Amend­
ment, were violated.

At the beginning of the next school year, all four of these 
teachers must be given the first opportunity for any open 
teaching positions in Board’s system for which they qualify, 
and thus are not to be considered merely on a par with 
prospective new applicants. If there are no openings, they 
must be objectively compared with all other teachers now 
in the system. If they are found to be superior to any, 
then they must be given such positions and the least quali­
fied dismissed. If not, then they quite rightly may be re­
fused acceptance in the school system.

Wrongful dismissal of teachers also entitles them to 
recover provable damages. Wall v. Stanly County Board 
of Education, 878 F.2d 275 (4 Cir. 1967); Smith v. Board 
of Education, 365 F. 2d 770 (8 Cir. 1966); Chambers v. 
Hendersonville City Board of Education, 364 F.2d 189 (4 
Cir. 1966); Johnson v. Branch, 364 F.2d 177 (4 Cir. 1966);

Decision of District Court



19a

Rolfe v. County Board of Education, 282 F.Supp. 192 (E.D. 
Tenn. 1966), aff’d 391 F.2d 77 (6 Cir. 1968). The record 
shows that Martin, Williams and Cockerham found teach­
ing employment elsewhere for the school year 1968-69. A 
proper damage element for them could include salary dif­
ferences, if any, through the 1968-69 school year, plus 
actual moving* expenses to their new positions. If they are 
re-employed in Board’s system for the next school year, 
they also should be awarded reasonable expenses of mov­
ing back to Madison Parish.

We must and do reject plaintiff-interveners’ claims for 
attorneys’ fees. Such fees are rarely granted where neither 
statute nor contract calls for them. Maier Brewing Co. v. 
Fleischmann Distilling Corp., 359 F.2d 156 (9th Cir., 1966), 
aff’d 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475; Kemp v. 
Beasley, 352 F.2d 14 (8 Cir. 1965). While the dismissals 
here obviously were wrong, as we have outlined, we can­
not say that they were so “unreasonable (and) obdurately 
obstinat(e)”7 as to warrant an award for attorneys’ fees.

A further factual hearing may be necessitated to estab­
lish the quantum of damages, if any.

Intervener-plaintiffs should present a proper decree.
Thus Done And Signed, in Chambers, in Shreveport, 

Louisiana, this 28th day of January 1969.
B en C. Dawkins, J r .,

Chief Judge.
* * * * *

Decision of District Court

7 Bradley v. School Board of the City of Richmond, 345 F.2d, 
310, 321 (4 Cir. 1965). See also Rolfe v. County Board of Educa­
tion of Lincoln County, Tenn., 282 F.Supp. 192 (E.D. Tenn. 1966), 
aff’d 391 F.2d 77 (6 Cir. 1966) ; Bell v. School Board of Powhatan 
County, Va., 321 F.2d 494 (4 Cir. 1963).



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