Morton v. Charles County Board of Education Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    IN THE

(Emtrt uf tlir United States
Octobee Teem, 1975

No.

J oseph H. Moeton, et al., Petitioners,
v.

Chaeles County B oaed of Education, et al.,
Respondents.

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

THE FOURTH CIRCUIT

J oseph L. B auh, J e.
J ohn Silaed 
E lliott C. L ichtman 

R auh, Silaed and L ichtman 
1001 Connecticut Avenue, N.W. 
Washington, D.C. 20036 

Mbs. J uanita J ackson Mitchell 
Mitchell and Mitchell 
1239 Druid Hill Avenue 
Baltimore, Maryland 21217 

Attorneys for Petitioners
J ack Geeenbeeg 
J ames M. Nabeit III 
J ames C. Gkay, Je.

10 Columbus Circle
New York, New York 10019

Press of Byron S. A dams Printing, Inc., Washington, D. C.



\



INDEX
Page

Opinions B elow  .................................................... ......................  1
J u r is d ic t io n ................................................................   1

Q uestions P r e s e n t e d ................................................................... 2

Constitutional and S tatutory P rovisions I nvolved 3
S tatem ent  of the  C a s e .........................................   3

1. The Period of Segregation Prior to 1967 . . . .  4
2. Racially Discriminatory Employment Practices

Between 1967 and State Board Ruling in 1970 5
3. The State Board’s Discrimination Findings and

Remedial Orders ....................................................... 8
4. Continuing Employment Discrimination after

1970 ..........................................................................  10
5. The Complaint in This Case and the District

Court’s R u lin g .....................    11
6. The Court of Appeals ’ Decision ......................  12

R eason F or Granting  T he W r i t : T his C o u rt ’s R e­
view  Is R equired T o I nsure D esegregation In 
T he F aculty C omponent  of F ormerly S egregated 
P ublic S chool S ystems ...........................    13

I . ' The Decision Below Severely Erodes The Impor­
tant Principle That Shifts the Burden of Justifi­
cation to a School System Which Curtails Its 
Black Faculty Component at the Time of Student 
Desegregation ...............................     14

II. The Decision Below Erodes This Court’s Wright
Ruling by Refusing to Apply its Objective Stand­
ard to the Faculty Desegration Area ....................  17

III. A Major Constitutional Issue Arises From the
Lower Court’s Refusal to Honor and Give Effect 
to The State’s Own Findings of the School 
Board’s Discriminatory Practices .......................   19

Conclusion  ...................      24



11 C IT A T IO N S

Cases : Page
Bradley v. School Board, 382 U.S. 103 (1965) ......... 16
Brewer v. Hoxie School District, 238 F.2d 91 (8th

Cir. 1956) ..................................................................... 22
Broivn v. Board of Education, 347 U.S. 483 (1954) 4,15,17 
Brown v. Gaston Co. Dyeing Machine Co., 457 F.2d

1377, (4th Cir. 1972) ............................. ................ . 17
Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) .......... 19
Chambers v. Hendersonville City Board of Education,

364 F.2d 189 (1966) ....................................... 2,12,14,16
The Civil Rights Cases, 109 U.S. 3 (1883 ).................... 21
Ex parte Virginia, 100 U.S. 339, (1880) .....................  21
Gomillion v. Light foot, 364 U.S. 339 (1960) ............. 21
Green v. County School Board, 391 U.S. 430 (1968) . .13,17
Griggs v. Duke Power Co., 401 U.S. 424 (1971) .......... 19
Keyes v. School District No. 1, Denver, Colorado, 413

U.S. 189 (1973) ......................................................2,12,14
McDaniel v. Barresi, 402 U.S. 39 (1971) ...................... 22
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) .......................    17
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211

(5th Cir. 1974) ........................................................... 17
Reynolds v. Sims, 377 U.S. 533, (1964) .......................  21
Rogers v. Paul, 382 U.S. 198 (1965) .............................  16
Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.

1972) ...........................................   17
Swann v. Board of Education, 402 U.S. 1 (1971) . .13,16,17
Trenton v. New Jersey, 262 U.S. 182 (1923) ................ 21
United Mine Workers v. Gibbs, 383 U.S. 715 (1966) . . 22
Vulcan Society v. Civil Service Commission, 490 F.2d

387 (2nd Cir. 1973) ................................................. 19
Williams v. Mayor and City Council of Baltimore, 289

U.S. 36 (1933) ........................................................... 21
Wilson v. Board of Education, 234 Md. 561, 200 A.2d 

67 (1964) ....................................................................  22
Wright v. Council of City of Emporia, 407 U.S. 451 

(1972) ............................................................. 2,12,17,18



Citations— Continued in

Page
C onstitutions and S tatutes :

United States Constitution, Fourteenth Amendment 
passim

United States Code:
28 U.S.C. § 1254 (1) ................................................. 2
28 U.S.C. § 1331 .........................................................  11
28 U.S.C. § 1343 .........................................................  11
28 U.S.C. § 1739 ............................. ..........................  22

Emergency School Aid Act (20 U.S.C. §§ 1601 et seq) 6
Maryland Constitution, Article VIII § 1 ...................... 20
Maryland Code

Article 77, § 6 ............................................................. 20
Article 77, § 113 .................................................... 20, 21

M iscellaneous :

Amicus Curiae Brief of National Education Associa­
tion in United States v. Georgia (5th Cir. No. 
30,338)    14

Hearings Before Senate Select Committee on Equal 
Educational Opportunity, 91st Cong., 2nd Sess. 
(1970), 92nd Cong. 1st Sess. (1971) .....................  14



-



IN THE

(Euurt ni %  Intteii States
October Term, 1975

No.

J oseph H. Morton, et al., Petitioners, 
v.

Charles County B oard of E ducation, et al.,
Respondents.

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

THE FOURTH CIRCUIT

Joseph H. Morton, et al., petition for a writ of 
certiorari to review the Judgment and Opinion of the 
United States Court of Appeals for the Fourth Cir­
cuit.

OPINIONS BELOW

The Opinion of the Court of Appeals (App. A, p. 
la infra) is unreported at this time. The Judgment 
is reproduced as Appendix B, p. 16a, infra. The Opin­
ion of the District Court (App. C, p. 17a, infra) is 
reported at 373 F.Supp. 394.

JURISDICTION

The Judgment of the Court of Appeals was entered 
on July 24, 1975, and this petition for certiorari is 
being filed within 90 days of that date. The jurisdic­



2

tion of this Court is invoked under 28 U.S.C. § 1254
( 1 ) .

QUESTIONS PRESENTED

In a racial discrimination case against a previously 
segregated school system, where petitioners proved 
that at the time of, and immediately subsequent to, 
dismantlement of the segregated system

(a) the percentage of black teachers and prin­
cipals sharply declined;

(b) the School Board made far greater efforts 
to recruit whites than blacks;

(c) black teacher applicants had to meet 
higher qualifications standards than white appli­
cants; and

(d) assignments of teachers were made on the 
basis of race

1. Did the majority of the Court of Appeals err in 
declining, in accordance with Keyes (413 U.S. 189 
(1973)) and Chambers (364 F.2d 189 (4th Cir. 1966)), 
to hold that the burden shifts to the School Board to 
justify its hiring and promotion practices by clear and 
convincing evidence.

2. Did the majority of the Court of Appeals err in 
declining to apply to the School Board’s hiring and 
promotion practices the “ effect”  discrimination test 
under Wright v. Council of City of Emporia, 407 U.S. 
451 (1972) rather than a racial motivation standard.

3. Did the Court of Appeals err in refusing to honor 
the Maryland State Board of Education’s findings of 
discriminatory faculty practices by Charles County

/



3

school officials, and in refusing to enforce the State 
Board’s mandate that those practices, be discontinued.

4. Did the majority of the Court of Appeals err in 
refusing to permit petitioners to maintain a class 
action.1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The pertinent portions of the Fourteenth Amend­
ment, the United States Code and the Maryland Code 
are set forth as Appendix D, p. 51a, infra.

STATEMENT OF THE CASE

This case presents in bold relief a widespread prac­
tice of school districts undertaking student desegre­
gation to alter their faculty employment policies to 
the prejudice of black teachers and administrators. It 
arises in a “ Deep South”  district whose student 
bodies remained segregated until the late 1960s.2 
When the Charles County Board of Education finally 
desegregated its student bodies 13 years after Brown, 
it immediately undertook radical changes in its faculty

1 While the class action question is presented in this case, we 
do not make it a separate reason for granting the writ. I f  certiorari 
is granted, we will contend that the dissenting judge of the Court of 
Appeals was correct on the cla«s action issue (see pp. 14a-15a, infra) 
and that a reversal on the merits should be accompanied by reversal 
on the class action question in order to provide fully effective relief.

8 Charles County was a ‘ ‘ Deep South ’ ’ community when it under­
took student desegregation in 1967 and it remains so. As the in­
vestigative Committee appointed by the Maryland State Board of 
Education stated in its 1970 Report to the Board (A. 837), Charles 
County “ is still basically a rural society. The races are segregated 
socially and economically. . . . The traditions of the Deep South 
run deep. The County as a whole still tends to be resistant to 
change.”  ( “ A ”  references are to the Joint Appendix in the Court 
of Appeals.)



4

hiring and promotion practices: prior to 1967 the fac­
ulty of the school system had been almost 50% black, 
and exactly half the schools had black principals. But 
black teachers and principals deemed good enough for 
black students were viewed by the school system in 
a different light when it came to integrated schools and 
classrooms. In 1967-68, when white students were 
finally to be taught by black teachers, the school system 
initiated new hiring and promotion practices which 
resulted in the precipitous decline of the percentage of 
the system’s black faculty and black principals. In­
stead of continuing the half white, half black faculty 
proportion, in 1967 the School Board began a consis­
tent policy of hiring four white teachers for each black. 
Moreover, while the number of black principals re­
mained static, the number of white principals was 
doubled. In a few short years the black teacher compo­
nent dropped from 44% to 27% and the blacks de­
creased from 50% to 30% in the school principal posi­
tions.

The issues arising from this course of action by the 
School Board with respect to the system’s faculty 
component are of paramount importance, for they af­
fect many hundreds of school districts across the na­
tion required to develop unitary school systems and 
manv thousands of black administrators, teachers and 
applicants for employment with these districts. A brief 
review of salient facts and the proceedings in this case 
will place these issues in proper perspective:

1. The Period of Segregation Prior to 1987

For many years after this Court’s 1954 decision in 
Broivn v. Board of Education, the Charles County 
Board of Education continued to operate a segregated



5

school system. As late as the 1964-65 school year, only 
296 black students attended white schools and only 2 
white students attended black schools in a system 
whose student enrollment number 8,999, of whom 45 
percent were black (A. 707-09). Full student desegre­
gation occurred for the first time in the 1967-68 school 
year (A. 509-10, 707-13). While faculty segregation 
had also been continued until the middle 1960’s, the 
district had continued to hire and promote substantial 
numbers of qualified blacks, although to teach or su­
pervise almost exclusively black students. Thus in 
1964-65, 50 percent of Charles County’s school princi­
pals were black, and in the last year before student 
desegregation, 44.2 percent of the teachers were black 
(A. 129-32, 704-13, 1180).

2. Racially Discriminatory Employment Practices Between 
1987 and State Board Ruling in 1970

When the Charles County Board of Education final­
ly yielded to this Court’s rulings and integrated its 
student bodies in 1967, this school system which had 
previously hired an almost half-black faculty sud­
denly changed its hiring and promotion practices. 
This change occurred at the very moment that black 
teachers and principals were reassigned to teach white 
students. Thus, with the onset of student desegrega­
tion, a school system which had previously hired al­
most 50% black teachers began hiring four white 
teachers for each black. That 80%-20% white-black 
hiring quota which was implemented each year after 
1967-68, soon caused a precipitous drop in the percen­
tage of black teachers in the Charles County School 
System. In the first year of student desegregation, the 
44.2 percent black faculty dropped to 37.3 percent (A. 
1180). By 1969-70, two years later, the black teacher



6

component had declined another 7 points, to 30.4 per­
cent (A. 1180). Thus within the first three years after 
desegregation of the student bodies, there was almost 
a one-third decline in the proportion of black teachers 
in the system. By the time of the 1973 trial, the black 
teachers had decreased to 27 percent. Since respond­
ents continued to hire according to the 4-1 ratio, the 
faculty proportions continue to decline to an ultimate 
one-fifth black faculty.

The sharp decline in black teacher hiring was paral­
leled among black principals. Of the 16 principals in 
1964-65, eight were black. In the very first year of full 
student desegregation, there were twice as many 
white principals (12) as blacks (6). By the time of 
the 1973 trial, the number of black principals re­
mained 8 while the number of white principals had 
more than doubled, to 18 (A. 1125-32, 707-13, 129-32).3

The reduction in the black teacher-principal compo­
nent is explained by the School Board’s recruiting and 
hiring practices during the crucial post-1967 period of 
student desegregation. Thus, between 1967 and 1970

3 In 1973 the Department of Health, Education and Welfare 
investigated respondents’ application for funding under the Emer­
gency School Aid Act (20 U.S.C. §§ 1601 et seq.) and denied it. 
H EW  wrote in a letter to the school district:

“ Your district has had a disproportionate reduction of black 
principals since the 1964-65 school year. In 1964-65, there was 
a total of 16 principals, of whom eight (8) were black and 
eight (8) were white. In 1964-65, black principals represented 
50 percent of the total number of principals in the district 
and white principals represented 50 percent. However, in 
1972-73, black principals represent 29 percent of the total 
number of principals and white principals represent 71 per­
cent of the total. Black principals have decreased by 25 per­
cent over the period, while white principals have increased 
by 137 percent.”  (A .704-05).



7

Charles County recruited at 156 predominantly white 
colleges, while visiting only 26 predominantly black 
colleges. During that same period white recruiters 
made visits on 197 occasions, while blacks made only 
20 trips (A. 959-76, 871).

A  comparison of the qualifications of black and 
white persons hired during these years further dem­
onstrates the discrimination in Charles County’s hir­
ing practices. It was far easier for white applicants 
to secure professional employment than for blacks 
with comparable qualifications (A. 873-958). The 
school system hired numerous whites without degrees 
and with the lowest state qualifications, while hiring 
virtually no blacks with such limited qualifications.4 
Similarly, during these years, the white professional 
employees hired by the school system generally had 
less teaching experience than the blacks hired. More­
over, among the teachers hired who did have teaching 
experience, blacks had a greater average teaching ex­
perience (id.). In sum, the record of diminishing 
black faculty due to discriminatory recruitment prac­
tices was bolstered by undisputed evidence that dis­
parate qualification standards were applied.

In addition to limiting black hiring and leadership 
in the years immediately following student desegre­
gation, the school system also discriminated in its 
assignment of blacks already employed. Between 1967

4 During the 1967-68 school year, 21 whites hired (16.2% of the 
new white employees) had a 4, 5, or 6 state department certification 
status, while only one black hired (2.7% of the new black em­
ployees) had such a low rating. In the same year respondents hired 
20 whites without college degrees while hiring only one, black 
without a degree. For the two following years, the Charles County 
school system hired 23 whites but only two blacks with a 4, 5, or 6 
rating.



8

and 1970, respondents’ faculty assignments were ra­
cially identifiable in almost two-thirds of its school 
faculties, and the District Court did grant a declara­
tory judgment with respect to these racial assign­
ments (A. 1025-26, 1217-24).

Finally, the record shows that the school system 
consistently employed a disproportionately low per­
centage of blacks in central office administrative posi­
tions, among the superintendent’s most immediate as­
sistants and among secretaries, maintenance workers 
and cafeteria managers. Only black custodians were 
employed in high numbers (A. 808-09, 1179, 1161-66, 
317-30, 1213-14, 1216, 977-1019).

3. The State Board's Discrimination. Findings and 
Remedial Orders

The discriminatory practices just reviewed were the 
subject of repeated complaints to the Charles County 
Board of Education. When respondents failed to pro­
vide any redress, a formal complaint of discrimination 
was filed with the Maryland State Board of Edu­
cation in 1969. Hearings were held by the State Board 
in late 1969 and early 1970. Seventeen witnesses, in­
cluding 3 of the individual petitioners herein, testified 
concerning discrimination suffered by blacks in hir­
ing, promotion, demotions and discharges (A. 783). 
At the conclusion of the complainants’ testimony, the 
State Board adopted a suggestion by Charles County 
school officials and created a 4-member special com­
mittee to investigate in Charles County “ the status of 
integration, any deficiencies that can be noted, and 
suggestions for future guidance”  (id.). After a com­
prehensive investigation (A. 393-98), the State
Board’s Committee issued a Report to the State 
Board on April 24, 1970 which generally upheld the



9

allegations of racial discrimination in the School 
Board’s hiring and promotion practices (A. 789-90, 
792-95, 799-800, 804-05, 808-10, 813-16).5 In addition, 
the Committee recommended corrective measures to 
redress the discriminations found (A. 850-60). On 
July 16, 1970, the State Board of Education upheld 
the findings of its Committee and issued a series of di­
rectives essentially adopting the remedial measures 
suggested by the Committee (A. 862-70). The Board’s 
remedial orders required sharp modification in the 
school system’s hiring and promotion practices, or­
dered deliberate and extensive recruitment of quali­
fied black personnel, significant increases in recruiting 
at black or predominantly black colleges by black re­
cruiters, and. the adoption of a policy and practice of 
employing, assigning and promoting black staff mem­
bers in order to produce “ greater equity”  and to “ in­
sure black students a greater opportunity for motiva­
tion and achievement”  (A. 866-68).

6 For example, concerning the School Board’s hiring practices, 
the Committee found:

“ The Committee stresses that whether or not the hiring prac­
tices of the Charles County school system are or were pur­
posely intended to exclude or keep to a minimum the number 
of blacks employed, the hiring practices have had just that 
effect. Whether or not the original intent was or is to discrimi­
nate against blacks the result has been and is one of discrimi­
nation”  (A. 815).

On the School Board’s hiring and recruiting policies, the Com­
mittee found:

“ . . . the evidence before the Committee does indicate that 
Charles County school officials have fallen into de facto dis­
criminatory hiring practices by following a procedure of 
recruiting almost exclusively at predominantly white colleges, 
using primarily white recruiters”  (A. 793).



10

4, Continuing Employment Discrimination after 1970

Despite the findings and remedial directives of the 
State Board in 1970, and the filing of this suit in 1971, 
the Charles County Board of Education continued the 
same discriminatory faculty practices. Respondents 
continued to hire at the same 80 percent white-20 per­
cent black ratio which caused a continuing drop in the 
proportion of black faculty (A. 873-958, 1180). The 
percentage of black principals remained low at 30 
percent, the School Board adding three white princi­
pals and only one black in the three years prior to the 
1973 trial (A. 1176).

These hiring data reflected respondents’ continuing 
discrimination in recruiting. Despite the State Board’s 
Order requiring the Charles County Board of Educa­
tion to engage in deliberate and extensive recruitment 
of qualified black personnel and to place black staff 
members on all recruiting teams, respondents contin­
ued to visit far more white colleges than black colleges 
with far more white than black recruiters. Moreover, 
Die School Board’s continuing double standard to­
ward white and black applicants was compounded, 
when its Director of Personnel issued a 1971 directive 
requiring that only “ superior”  and “ above average”  
black applicants be interviewed without placing any 
such limitation on the interviewing and selection of 
white applicants (A. 1119-21). Finally, the Charles 
County system continued its racial assignment of 
faculties despite the State Board’s express directive 
that its school faculties must have “ balanced assign­
ments”  (A. 868). During the years between the State 
Board ruling and the 1973 trial, about half of the 
school faculty assignments were racially identifiable 
(A. 1025-26, 1217-24).



11

5. The Complaint in This Case and the District Court's Ruling

When the County School Board failed to implement 
the 1970 remedial directives of the Maryland State 
Board of Education, six black applicants and employ­
ees filed this action in 1971.6 They alleged individual 
acts of employment discrimination and sought to rep­
resent a class of blacks who had likewise been refused 
employment or promotion or been demoted by re­
spondents on grounds of race. The District Court 
ruled that petitioners could not maintain a class ac­
tion, but it allowed nine additional applicants and 
employees to intervene as named plaintiffs. After a 
trial at which petitioners presented the above record 
of racially discriminatory actions and policies, the 
District Judge rejected most of petitioners’ claims. 
Although he found racial discrimination in faculty 
assignments and in the failure to promote a single 
black Vice-Principal, the District Judge gave these 
findings no weight at all when he reviewed the specific 
challenged actions of the school officials and their dis­
criminatory general hiring policies. Despite the his­
tory of segregation prior to 1967 and the unrefuted 
proof that the Charles County Board of Education, 
coincident with student integration, initiated vastly 
Afferent hiring and promotion procedures which had 
the effect of progressively reducing the black faculty 
component, the District Judge refused to shift the 
burden of proof to the School Board to explain its 
hiring and promotion actions. In his view, “ [t]his 
case is nothing like Chambers v. Hendersonville 
Board of Education, 364 E.2d 189 (4 Cir. 1966)”  be­
cause the respondents had not discharged black fac­
ulty at the time of desegregation (p. 29a infra).

6 Petitioners invoked jurisdiction of the District Court under 
28 U.S.C. § 1331, 1343.



12

The District Court also declined to apply the prin­
ciple of Wright v. Council of City of Emporia, 407 
U.S. 451 (1972) : that even if not racially motivated, 
desegregating school systems are proscribed from tak­
ing actions which have the effect of impeding desegre­
gation. Instead of granting relief against the Charles 
County Board’s faculty employment actions, which 
clearly had the effect of reducing the black faculty 
component, the Court denied relief because of peti­
tioners’ failure to prove to its satisfaction that the 
School Board’s actions had been motivated by racial 
prejudice (see, e.g., pp. 29a, 36a infra). Finally, the 
District Court refused to honor, or give any iveight 
at all to, the State Board of Education Committee’s 
1970 finding of racially discriminatory faculty prac­
tices by respondents, and the ensuing remedial orders 
of the State Board itself directing abandonment of 
those practices (pp. 26a-27a infra).

6* The Court of Appeals’ Decision

Dividing two to one, a panel of the Court of Ap­
peals affirmed the District Court’s ruling on the 
ground that the District Court properly placed the 
burden of proof on petitioners because the 1967 stu­
dent desegregation was “ voluntary”  and because no 
discharges of black faculty members accompanied the 
desegregation. In the Court’s view, the immediate 
precipitous drop in the hlack faculty proportion upon 
integration of the student bodies was explained or 
somehow justified by the expanding white student 
population in the county. In short, the majority found 
no justification to shift the burden of proof to the 
School Board under this Court’s Keyes decision and 
the Fourth Circuit’s Chambers ruling (pp. 5a-6a 
infra).



13

A detailed critique of the District Court decision in 
the dissenting opinion of Judge Butzner (pp. 10a to 
15a infra) emphasized that the District Court ruling 
was marred by two basic errors of law: (1) applica­
tion of the Keyes-Chambers rule required that the 
burden of proof should have been shifted to the School 
Board because the Charles County school system had 
a history of segregation and because the post-1967 
hiring and promotion policies were shown to have a 
racially discriminatory effect—a burden of explana­
tion which the school system failed to meet; (2) ap­
plying this Court’s Wright decision, the District 
Court’s premise that petitioners were required to 
show purposeful racial discrimination was fallacious.

In the “ reason for granting the writ”  we urge that 
vital questions are presented concerning the faculty di­
mension of school desegregation, and that the narrow 
distinctions espoused by the court below against the 
governing authorities invite perpetuation among pub­
lic school faculties of the racial segregation which 
this Court has ordered eliminated “ root and branch” . 
Green v. County School Board, 391 U.S. 430, 438 
(1968).

REASON FOR GRANTING THE WRIT

THIS COURT'S REVIEW IS REQUIRED TO ASSURE EFFECTIVE 
DESEGREGATION IN THE FACULTY COMPONENT OF 
FORMERLY SEGREGATED PUBLIC SCHOOL SYSTEMS.

The major student desegregation undertaken 
throughout the South under this Court’s Green and 
Swann rulings has increased rather than reduced re­
sistance to faculty desegregation. No problem has been 
more unyielding in the process of school desegregation



14

than the substantial decline in the employment of black 
teachers and supervisors which far too frequently has 
occurred following the desegregation of pupils.7 This 
case presents in clearest illumination practices in­
dulged in by many school districts to continue discrim­
ination and segregation in the faculty component of 
the school system. Moreover, we urge the necessity of 
this Court’s review because the lower courts’ refusal 
to apply established Fourteenth Amendment princi­
ples tangibly threatens the perpetuation in faculty em­
ployment of the racism formerly practiced under com­
pulsion of state law.

I. THE DECISION BELOW SEVERELY ERODES THE IM­
PORTANT PRINCIPLE THAT SHIFTS THE BURDEN OF 
JUSTIFICATION TO A SCHOOL SYSTEM WHICH 
CURTAILS ITS BLACK FACULTY COMPONENT AT THE 
TIME OF STUDENT DESEGREGATION.

In Keyes v. School District No. 1, Denver, Colo­
rado, 413 U.S. 189 (1973) this Court quoted and 
adopted the holding of the Fourth Circuit in Cham­
bers v. Hendersonville City Board of Education, 364 
F.2d 189, 192 (1966) that “ . . . in a school system 
with a history of segregation, the discharge of a dis­
proportionately large number of Negro teachers in­
cident to desegregation ‘ thrust[s] upon the School 
Board the burden of justifying its conduct by clear

7 See Amicus Curiae Brief of National Education Association in 
United, States v. Georgia, (5th Cir. No. 30,338) reproduced in 
Hearings Before Senate Select Committee on Equal Educational 
Opportunity, 91st Cong., 2d Sess. (1970), 92d Cong., 1st Sess., 
(1971) (herein “ Hearings” ) pp. 5025, 5042, 5074; Hearings, 
Part 10— ‘ ‘ Displacement and Present Status of Black School Prin­
cipals in Desegregated School Districts, ’ ’ Appendix 5, pp. 5147- 
5390; Hearings, “ NEA Report of Task Force Survey of Teacher 
Displacement in Seventeen States,”  pp. 1082,1124.



15

and convincing evidence.’ ”  (413 U.S. at 209). In this 
case, the majority below rejects the applicability of the 
Keyes-Champers principle, because in Charles County 
in 1967 student desegregation occurred “ voluntarily”  
and because no actual discharge of black teachers oc­
curred. Such a distinction disregards the underlying
meaning and purpose of the Keyes-C hampers rule.

»

While in Charles County the student desegregation 
did not occur pursuant to a specific court order, its 
ultimate action was belatedly undertaken to comply 
with this Court’s order in Brown. Moreover, and more 
importantly, while not discharging black teachers, the 
School Board achieved the same result of curtailing 
its black faculty component by initiating discrimina­
tory hiring and promotion procedures. Thus a school 
system with almost 50% black teachers suddenly began 
hiring four white teachers for each black. In the very 
first year following student desegregation, the black 
faculty dropped from 44% to 37% ; and in two more 
years to 30%. The four to one white-black hiring ratio 
has continued each year after 1967, even after the 
Maryland State Board of Education in 1970 expressly 
ordered a sharp modification in the School Board’s 
hiring and promotion practices and directed the de­
liberate and extensive recruitment of qualified black 
personnel. Just as Charles County initiated new 
teacher hiring procedures at the time of desegregation, 
it stopped promoting blacks to the important leader­
ship position of school principal. While the number 
of black principals remained static, whites were con­
tinually appointed to these positions and more than 
doubled in number, resulting in a decrease in the black 
principal proportion from 50% to 30%.8

8 The majority of the Court of Appeals accepted respondents 
argument that demographic changes in the Charles County popu­



16

The School Board thus accomplished by its hiring 
and promotion policies what the school board in 
Chambers accomplished by discharges. As the dissent­
ing Judge below stated:

“ The record demonstrates that, incident to de­
segregation of the schools, the board disadvan- 
tageously treated a disproportionately large num­
ber of black personnel, not by discharge, as men­
tioned in Keyes, but by its hiring and promotion 
policies. For the purposes of shifting the burden 
of proof, the difference between discharging black 
teachers and refusing to hire or promote them is 
inconsequential. The board’s practices, though 
more subtle than outright discharge, nevertheless 
disproportionately diminish the black faculty”  
(p. 11a infra).

Though perhaps “ more subtle than outright dis­
charge,”  the subtlety of the hiring discrimination was 
certainly not lost on the system’s black pupils who 
perceived the sharp curtailment in the black faculty 
proportion. From their point of view, the discrimina­
tion was very real and, as this Court has held, the 
impact of faculty discrimination on the students is the 
paramount concern. Rogers v. Paul, 382 U.S. 198, 200 
(1965) ; Bradley v. School Board, 382 U.S. 103 (1965) ; 
Swann v. Board of Education, 402 U.S. 1, 18 (1951).9

lation during the 1960-1970 decade somehow explained the precipi­
tous drop in the black faculty component. But as Judge Butzner 
persuasively pointed out in dissent, the record reflects that the 
School Board “ does not look only to the availability of white 
teachers living in the county, and for years both black and white 
teachers have been recruited from colleges all over the country. 
Consequently, the number of black applicants who live in the 
county is irrelevant”  (See p. 13a infra).

9 While this case involves school desegregation, it, of course, also 
concerns employment discrimination. In cases of employment dis­
crimination, statistical evidence has uniformly been held to estab-



17

During the middle and late 1960’s thousands of 
Southern black school administrators and teachers 
were discharged, demoted and refused employment at 
the time of desegregation.10 The Chambers principle 
which this Court adopted in its 1973 Keyes decision 
provides an important deterrent to the continuation 
of the practice of eliminating black faculty at the 
time that these faculty members are assigned to teach 
white children. Numerous school districts across the 
country are still in the process of desegregation. The 
pernicious effect of the majority opinion below is to 
erode the important continuing protection furnished 
by the Keyes-Chambers rule, which places a heavy 
burden on the school district to justify its action. This 
Court’s review is required where the opinion below 
invites evasion of full desegregation by discriminatory 
faculty hiring practices.

II. THE DECISION BELOW ERODES THIS COURT'S WRIGHT 
RULING BY REFUSING TO APPLY ITS OBJECTIVE STAND­
ARD TO THE FACULTY DESEGREGATION AREA.

In Wright v. Council of City of Emporia, 407 IT.S. 
451 (1972), this Court enunciated an important prin­

lish a prim,a facie ease shifting the burden to the employer to 
rebut the inference of discrimination arising therefrom. See, e.g., 
Crown v. Gaston Co. Dyeing Machine Co., 457 F.2d 1377, 1382 
(4th Cir. 1972); Rowe v. General Motors Corp., 457 F.2d 348, 
357-58 (5th Cir. 1972); Pettway v. Cast Iron Pipe Co., 494 F.2d 
211, 225, n. 34 (5th Cir. 1974). The lower courts surely erred in 
failing to apply these authorities to petitioners’ pattern or practice 
of discrimination claim. Moreover, in treating petitioners’ individ­
ual clams of discrimination, the lower courts failed to shift the 
burden of proof to the employer School Board in accordance with 
the “ order and allocation of proof”  set forth in this Court’s 
opinion in McDonnell Douglas Corp. w. Green, 411 U.S. 792, 800-04 
(1973).

10 See p. 14 n. 7 supra.



18

ciple of school desegregation law flowing from Brown, 
Green, and Swann: in evaluating a desegregating 
school district’s actions it is the effect which is con­
trolling rather than the motivation of school officials. 
As stated in Wright (407 U.S. at 462), where the court 
below had upheld creation of a new school district ‘ ‘ de­
signed to further the aim of providing quality educa­
tion”  (442 F.2d 570, 572), the focus must be upon 
“ the effect—not the purpose or motivation—of a 
school board’s action in determining whether it is a 
permisible method of dismantling a dual system. The 
existence of a permissible purpose cannot sustain an 
action that has an impermissible effect.”

The District Judge, affirmed by the ruling below, 
refused to apply the Wright ‘ ‘ discriminatory effect”  
test to the faculty practices of the Charles County 
School Board. For example, in denying relief to pe­
titioner William Griffis, a black principal for 16 years 
in the segregated school system, who was demoted one 
year after his school was integrated, the District Judge 
•equired petitioner to prove that the demotion was 
“ made on the basis of race, or because of any racial 
prejudice”  (p. 36a infra, see also p. 15a). As dissent­
ing Judge Butzner emphasized, the District Court’s 
Opinion contains a “ basic error of law that flaws this 
case: the fallacious premise that the evidence must re­
veal purposeful discrimination in order for the com­
plainants to prevail”  (p. 12a infra). To Judge Butz­
ner’s conclusion that the Wright “ effect”  test should 
have been applied—- and that its application requires a 
finding of unlawful School Board conduct here—the 
majority below makes no response. Plainly, Judge 
Butzner is correct in rejecting any operative distinc­
tion which would make the Wright rule inapplicable



19

to the faculty component in school desegregation. This 
Court’s review is thus required to vindicate the appli­
cability of an “ effect”  standard for desegregation of 
the faculties of formerly segregated school systems no 
less than their student bodies.

Moreover, the refusal by the Court below to apply 
an objective standard to the School Board’s employ­
ment policies sharply curtailing the black faculty com­
ponent, cuts directly against the grain of this Court’s 
objective standard in employment cases covered by 
the Civil Rights Act of 1964. Griggs v. Duke Power 
Co., 401 U.S. 424 (1971).11 Tinder Griggs, that is 
true even though the employer has had no past segre­
gation record such as existed in Charles County and 
even though the private employer is free of constitu­
tional limitations. Surely this Court ought review a de­
cision which makes inapplicable to public employment 
the objective standard of Griggs which now applies 
in all private employment.

HL A  MAJOR CONSTITUTIONAL ISSUE ARISES FROM THE 
LOWER COURT'S REFUSAL TO HONOR AND GIVE EFFECT 
TO THE STATE'S OWN FINDINGS OF THE SCHOOL 
BOARD'S DISCRIMINATORY PRACTICES.

The duties of the Maryland State Board of Educa­
tion under the Fourteenth Amendment and state law 
were duly invoked in 1969 by charges filed with the 
Board alleging widespread discrimination against

11 "While Griggs was brought under Title V II of the Civil Rights 
Act of 1964 (42 U.S.C. §2000e et seq.), its standards have generally 
been applied in employment discrimination cases brought under 
42 U.S.C. §§ 1981 and 1983. See, e.g., Vulcan Society v. Civil 
Service Commission, 490 F.2d 387, 394 n. 9 (2d Cir. 1973); 
Castro v. Beecher, 459 F.2d 725, 733 (1st Cir. 1972).



20

black faculty by Charles County school officials.12 Fol­
lowing three days of hearings, the State Board ap­
pointed a four member investigating committee. The 
State Board’s Committee conducted a comprehensive 
investigation and in April 1970 issued a unanimous 
report. Finding respondent School Board guilty of 
discriminatory practices and policies inhibiting the 
hiring and promotion of black faculty, the State 
Board’s Committee recommended corrective measures 
to redress the discriminations found (A. 789-90, 792- 
95, 799-800, 804-05, 808-10, 813-16, 854-59). Thereafter, 
in July 1970 the State Board of Education itself up­
held the findings of its Committee and issued direc­
tives requiring respondent Charles County Board of 
Education to modify sharply its hiring and promotion 
practices and to deliberately and extensively recruit 
qualified black personnel (A. 866-68).

While the District Court reluctantly received into 
evidence the rulings of the State Board and its Com­
mittee, it chose to disregard the findings of the State 
Board’s Committee approved by the State Board. 
Moreover, it declined to enforce or give any weight to 
the requirements mandated by the State Board itself

12 Under the Constitution of the State of Maryland, responsi­
bility for the operation and maintenance of the public education 
system is placed upon the State (Maryland Constitution, Article 
VIII, § 1). That State responsibility is vested in the State’s Board 
of Education by Article 77 of the Maryland Code. Section 113 
of Article 77 broadly prohibits any board of education from mak­
ing “ any distinction or discrimination in favor of or against any 
teacher . . .  on account of race . . . with reference to . . . appoint­
ment, assignment, compensation, promotion, transfer, dismissal, 
. . . ”  Under § 6 of the same Article, the State Board of Education 
must “ cause the provisions of this article to be carried into effect” , 
and must “ decide all controversies and disputes that arise under 
it, and their decision shall be final. ’ ’



21

seeking to end the faculty practices which were sharp­
ly reducing the proportion of black teachers and prin­
cipals in the Charles County school system (pp. 26a-27a 
infra). The Court of Appeals similarly refused to 
honor the State Board Committee’s findings or to 
enforce the State Board’s remedial mandate that the 
discriminatory faculty practices be discontinued 
(pp. 8a-10a infra). Indeed, the majority even criti­
cized the dissenting opinion’s reliance on the State 
Board Committee’s Report and the State Board’s re­
medial orders in finding a “ history of segregation”  in 
the Charles County system (p. 9a infra).

Thus the federal courts below have shrugged aside, 
disregarded and declined to give effect to the State’s 
own action, taken pursuant to its responsibility under 
State law and under the Fourteenth Amendment.13 * 
That Amendment provides that no “ state”  shall deny 
equal protection to its citizens, and it is settled that 
the state itself bears the equal protection responsibility 
for the discriminatory acts of its agents or subdivi­
sions. See The Civil Rights Cases 109 U.S. 3 (1883); 
Ex parte Virginia, 100 U.S. 339, 347 (1880) ; Gomil- 
lion v. Lightfoot, 364 U.S. 339, 344-45 (1960); Reyn­
olds v. Sims, 377 U.S. 533, 575 (1964). Accordingly,

13 Both the Court of Appeals and the District Court state (pp. 
9a, 27a infra) that the State Board and its Committee were not 
charged with and did not purport to apply constitutional or sta­
tutory standards. But in finding racially discriminatory employ­
ment practices and in directing corrective action by the school 
system, the State agency was discharging its duty to enforce the
Equal Protection Clause of the Fourteenth Amendment. More­
over, the State Board and its Committee were bound to enforce 
Article 77, § 113 of the Maryland Code which essentially, dupli­
cates the Fourteenth Amendment in prohibiting any Board of 
Education from racial discrimination in matters of faculty em­
ployment, promotion and assignment.



22

when the highest public education authority of Mary­
land made an appropriate investigation resulting in 
findings that its subordinate agency—the Charles 
County School Board—-was engaging in discrimination 
against black faculty and ordered corrective action, 
the State was exercising its duty under the Fourteenth 
Amendment precisely as the Amendment contemplates 
and requires.14

An important question is thus raised by the lower 
courts’ failure to give effect to the action properly 
undertaken by the State Board under its equal pro­
tection obligation, as well as under the State law bar­
ring discrimination in faculty hiring. Given the high 
importance of state respect for equal protection, the 
state’s own compliance efforts are entitled to full 
faith and credit in a federal litigation seeking Four­
teenth Amendment remedies. Cf. Brewer v. Hoxie 
School District, 238 F.2d 91 (8th Cir. 1956).15 The occa-

14 Moreover, under the Federal Constitution the State Board’s 
ruling was binding on the Charles County Board of Education, 
and it had no standing to challenge it. The Charles County Board 
is a creature of the State of Maryland and cannot be heard in 
federal court to challenge the rulings of the State Board of Edu­
cation. Williams v. Mayor and City Council of Baltimore, 289 
U.S. 36, 40 (1933) ; Trenton v. New Jersey, 262 U.S. 182, 187-88 
(1923). Since that is true even where as in Williams the sub­
ordinate agency claims that the State is acting in violation of the 
Fourteenth Amendment, it is surely even more the case where, 
as here, it is the State which has sought to secure Fourteenth 
Amendment compliance and it is a subordinate School Board 
which has flouted its remedial directives.

15 Since Maryland courts honor and give effect to remedial orders 
of the State Board of Education (see Wilson v. Board of Educa­
tion, 234 Md. 561, 563-66, 200 A.2d 67, 68-70 (1964)), the federal 
courts below should have done the same as a matter of pendent 
jurisdiction. United Mine Workers v. Gibbs, 383 U S 715 725 
(1966) ; cf. 28 U.S.C. § 1739.



23

sions on which officials of the formerly segregated 
states have themselves undertaken forthright correc­
tive action in the school desegregation area are un­
fortunately few and far between. Cf. McDaniel v. 
Barresi, 402 U.S. 39 (1971). Surely when that hap­
pens, as here, federal courts cannot disregard that 
action, giving a clean bill of health to School Board 
officials for the same conduct which the State has 
found racially discriminatory.

Maryland having found generally discriminatory 
hiring and promotion policies practiced by the Charles 
County Board of Education and having ordered their 
discontinuance, there was provided to the District 
Court an additional predicate for award of injunctive 
and compensatory relief. Thus, both as a matter of 
legal compulsion and as a matter of comity and judicial 
wisdom, the lower courts should have given appropri­
ate effect to Maryland’s discrimination findings and 
remedies. Their failure to do so presents an important 
additional question for this Court’s review.



24

CONCLUSION

For the several separate and compelling reasons 
stated, the writ should be granted.

Respectfully submitted,
J oseph L . R auh, J r .
J ohn Silard 
Elliott C. L ichtman

R auh, Silard and L ichtman 
1001 Connecticut Avenue, N.W. 
Washington, D.C. 20036

Mrs. J uanita J ackson M itchell 
Mitchell and M itchell 
1239 Druid Hill Avenue 
Baltimore, Maryland 21217

Attorneys for Petitioners

J ack Greenberg 
J ames M. X aiu;it I I I  
J ames C. Gray, Jr.

10 Columbus Circle
New York, New York 10019



APPENDIX





la

APPENDIX A

UNITED STATES COURT OF APPEALS 
FOE THE FOUETH CIRCUIT

Nos. 74-1817 and 74-1818

J oseph H . M orton, W illiam L. Griffis, M elbourne F. 
H ull, V eronica A dams, A nnie C. Y ates, M ary L inda 
Plater, infant, through her father, Charles L. Plater, 
Sr., M ary T heresea W ashington, infant, through her 
mother, M rs. D oris C. W ashington, Cordelia E. K ing, 
E lnora P in kn ey , Raymond F. Sanderlin, H erome F. 
T hompson, L acey T illotson, Sandra W ashington 
H earns, K enneth  W right, J oseph A . J ones, B ertha 
K ey,

versus

Charles County B oard of E ducation, J ames E. W ilson, 
individually and as a member of the Charles County 
Board of Education, B. Patrick Cox, individually and 
as a member of the Charles County Board of Educa­
tion, Joseph L. Gardiner, individually and as a mem­
ber of the Charles County Board of Education, D aniel

C. Gardner, individually and as a member of the 
Charles County Board of Education, Joan L. B owling, 
individually and as a member of the Charles County 
Board of Education, Mrs. A lfred Paretta M udd, in­
dividually and as a member of the Charles County 
Board of Education, Jesse L. Starkey, individually 
and as Superintendent of Schools, Charles County, 
Maryland, Charles County Board of Education,

Appellees-Appellants

Cross-appeals from the United Staes District Court for 
the District of Maryland, at Baltimore. Roszel C. Thom­
sen, Senior District Judge.

Argued March 5, 1975 Decided July 24, 1975



2a

Before B ryan, Senior Circuit Judge, and B utzner and 
F ield, Circuit Judges.

Elliott C. Lichtman (Joseph L. Rauh, Jr., John Silard, 
Rauh and Silard, Mrs. Juanita Jackson Mitchell, Mitchell 
and Mitchell, Jack Greenberg, James M. Nabrit, III, Nor­
man Chachkin and James C. Gray, Jr., on brief) for Ap­
pellants in No. 74-1817 and Appellees in 74-1818; William 
L. Marbury and E. Stephen Derby (Judith K. Sykes, Ed­
ward S. Digges and Richard J. Clark on brief) for Appel­
lees in No. 74-1817 and Appellants in No. 74-1818.

F ield, Circuit Judge:

This action was instituted in January of 1971 by eight 
black individuals alleging discriminatory conduct in the 
operation of the public school system of Charles County, 
Maryland. Six of the plaintiffs were adults who charged 
that they and the class of individuals which they purported 
to represent had been refused employment or promotion, 
or had been demoted or discharged by the defendants on 
grounds of race. The other two plaintiffs were infants who 
were students in the Charles County School System and 
alleged that they sued on behalf of themselves and as rep­
resentatives of a class consisting of all black students in 
the school system who were being deprived of their civil 
rights because the defendants had maintained racially 
identifiable faculties. The parties engaged in broad and 
exhaustive discovery procedures and on November 9, 1973, 
the court determined that the prerequisites to a class ac­
tion had not been met by either the adult or infant plain­
tiffs. Thereafter, nine additional adults moved to inter­
vene as plaintiffs, alleging that they had been the victims 
of racial discrimination on the part of the defendants.

The district court conducted a twelve-day trial and filed 
an opinion in which it engaged in a meticulous review of 
the evidence and made detailed findings of fact. The claims



3a

of discrimination of the fourteen adult plaintiffs1 were 
carefully examined and with the exception of one claim 
were found to be without merit. In the case of Mrs. Elnora 
Pinkney the court found that the failure to appoint her as 
principal of an elementary school in 1969 was the result 
of racial discrimination. With respect to the claims of the 
student plaintiffs relative to the racial composition of 
faculties, the court found that the School Board had at­
tained an appropriate faculty ratio as required by Nesbit 
v. Statesville City Board of Education, 418 F.2d 1040 (4 
Cir. 1969), in all but five of its twenty-six schools.2 The 
court noted that in three of these five schools the shifting 
of one teacher would bring the school into conformance 
with the test suggested by the plaintiffs and that in all 
other schools the shifting of only two teachers would he 
necessary. The only school falling substantially below this 
test was the Vocational Educational Center which included 
a number of specialized faculty positions.

Based upon the findings in its opinion the court entered 
an order which (1) granted judgment in favor of the de­
fendants with respect to the claims of all the adult plain­
tiffs with the exception of Mrs. Pinkney; (2) declared that 
the ratio of black and white faculty members in each 
school should be not less than 75 per cent nor more than 
125 per cent of the ratio of black teachers throughout the 
system ;3 * (3) granted judgment in favor of Mrs. Pinkney

1 After tlie institution of this suit one of the plaintiffs, Ortis J. 
Cobb, was permitted to withdraw as a party plaintiff on October 
12, 1972.

2 The plaintiffs suggested that the standard of Nesbit would be 
met where the ratio of black teachers to white teachers in each 
public school in the county was not less than 75 per cent nor 
more than 125 per cent of the ratio of black teachers to white 
throughout the entire system.

3 On this issue the court accepted the standard suggested by the
plaintiffs. See, n.2, supra.



4a

in the amount of $15,796, being the difference between the 
salary actually paid to her and the salary she would have 
received as principal of an elementary school for the years 
1969 to 1974;4 and (4) awarded attorneys’ fees of $12,000 
payable to counsel for Mrs. Pinkney and the infant plain­
tiffs.

Upon their appeal, the plaintiffs request that we re­
verse the judgment of the district court and direct that it 
take the following remedial measures. First, grant declara­
tory and injunctive relief prohibiting continuance of the 
hiring, promotion and demotion practices which plaintiffs 
allege have caused continued attrition in the percentage 
of black faculty members in the school system. Second, 
issue an injunction requiring the institution of affirmative 
hiring, promotion and demotion policies designed to restore 
the ratio of black principals and teachers to that which 
existed in the school system at the time desegregation was 
undertaken. Third, set aside the adverse findings made by 
the district court against the thirteen adult plaintiffs, and 
reconsider their claims by applying a presumption of racial 
discrimination and placing upon the defendants the burden 
of proving that discriminatory policies played no part in 
the rejection, non-promotion or demotion of each individ­
ual plaintiff. Fourth, award compensatory and other relief 
to all members of the class of unsuccessful black appli­
cants for promotion and hiring in the Charles County 
School system since 1968.5

4 The Board was further directed to compensate Mrs. Pinkney 
on the basis of a principal’s salary until her retirement and to 
make such additional contributions to the Maryland Teachers Re­
tirement System on her behalf as would have been made had she 
held the position of principal since 1969.

5 The plaintiffs contend that the alleged discriminatory practices 
injured all unsuccessful black applicants for positions in the Charles 
County school system and that the district court plainly erred in 
refusing to permit the plaintiffs to pursue their class action. They 
further suggest “ that a special master could be appointed to receive



5a

Primarily the plaintiffs contend that the district court 
failed to give the appropriate presumptive weight to the 
statistical evidence of racial discrimination in the Board’s 
employment practices. They point to the fact that whereas 
in 1966-67, the year prior to complete desegregation, 44.2 
per cent of the teachers were black, the proportion of black 
teachers had declined to 30.4 per cent in 1969-70, and that 
in the same years the percentage of black principals had 
dropped from 37.5 per cent to 30.7 per cent. These sta­
tistics, the plaintiffs argue, call for the invocation of the 
principle set forth in Chambers v. Hendersonville City 
Board of Education, 364 F.2d 189, 192 (4 Cir. 1966), that 
“ in the face of the long history of racial discrimination 
* * * the sudden disproportionate decimation in the ranks 
of Negro teachers raise[s] an inference of discrimination 
which thrust[s] upon the School Board the burden of justi­
fying its conduct by clear and convincing evidence.”  The 
district judge rejected this contention of the plaintiffs, and 
we agree with him that this is not a Chambers case. First 
of all, unlike Chambers where the school system resisted 
“ the mandate of Brown until forced to do so by litigation,”  
Id. at 192, the Charles County Board had taken affirmative 
steps to desegregate its schools in the light of the evolving 
law and it is conceded that complete desegregation in the 
county had been voluntarily accomplished in 1967. Also, 
unlike Chambers, in the present case there was no sudden 
disproportionate decimation in the ranks of Negro teachers 
incident to the complete integration of the school system. On 
the contrary the district judge found that ‘ ‘ there is no claim 
or evidence that any teacher or principal was discharged 
because of his or her race.”  Common to Chambers and its 
progeny in this circuit6 was the fact that in each case a sub­

file individual applications for reliefs,”  with directions that the 
master apply the presumption of discrimination set out in “ Third”  
above.

6 See, Walston v. County School Board of Nansemond Cty., Va., 
492 F.2d 919 (4 Cir. 1974) ; North Carolina Teachers Ass’n. v. 
Asheboro City Bd. of Ed., 393 F.2d 736 (4 Cir. 1968).



6a

stantial number of black teachers had been discharged when 
the schools were integrated, and the significance of this 
factors was recognized by the Court in Keyes v. School 
District No. 1, Denver, Colo., 413 U.S. 189̂  209 (1973), 
where the Court stated:

‘ ‘ Again, in a school system with a history of segrega­
tion, the discharge of a disproportionately large num­
ber of Negro teachers incident to desegregation 
‘‘ trust[s] upon the School Board the burden of justify­
ing its conduct by clear and convincing evidence’.”  
(Emphasis added).

In addition to the foregoing, the record clearly demon­
strates that the statistical changes upon which the plain­
tiffs rely so heavily were not the result of any discrimina­
tory hiring policies of the Board, but rather were the result 
of dramatic demographic changes which occurred in Charles 
County in the 1960-1970 decade. Charles County is a small 
county in southern Maryland which is experiencing rapid 
growth as the suburbs of the District of Columbia expand. 
Between 1960 and 1970 the population increased 46.4 per 
cent from 32,500 to 47,700. In that same period the number 
of students in public schools increased from 7,400 in 1960 
,o 13,000 in 1970, and had further increased to 16,300 in 
1973. This rapid growth in both population and school en­
rollment consisted primarily of an increase in white popu­
lation and white pupils. While in 1970 the black population 
of the county had slightly increased in absolute numbers, 
the percentage of black population had declined from 34 
per cent in 1960 to 29 per cent in 1970; and the percentage 
of blacks in the school population had declined from 45.7 
per cent in 1960 to 39.9 per cent in 1970 and dropped even 
lower to 34 per cent in 1973.

During this same period the number of black principals 
in the school system increased from six to eight and in 1973 
stood at 30.7 per cent while the number of black vice-prin­
cipals increased from four to six and reached about 45 per 
cent. The number of black administrators in the central



7a

office of the school system increased from four to ten, being 
22 per cent of that job classification. The number of black 
teachers had increased from 198 to 207, although the per­
centage decreased to 27 per cent. The district court care­
fully analyzed the school statistics in the light of the per­
centage decrease of blacks in the general population as well 
as the school system, and also took into consideration the 
statistical data bearing upon the percentage of blacks in 
the relevant employment pool from which the School Board, 
of necessity, drew a substantial number of its employees. 
Upon consideration of all of the relevant statistical data 
and underlying evidence bearing thereon, the district judge 
concluded that the evidence did not disclose a pattern of 
racial discrimination which required or justified the appli­
cation of the so-called Chambers rule. The record solidly 
supports the findings of the district court and, assuredly, 
they are not clearly erroneous.7 Williams v. Albemarle City 
Board of Education, 485 F.2d 232 (4 Cir. 1973); jBridgeport 
Guard., Inc. v. Members of Bridgeport C. S. Com’m., 482 
F.2d 1333 (2 Cir. 1973).

The proposal of the plaintiffs that the court direct the 
Board to institute an affirmative policy which will restore 
the ratio of black principals and teachers to that which 
existed in the system prior to desegregation of the schools

7 In Mayor v. Educational Equality League, 415 II.S. 605 (1974), 
the Court criticized the use of “ simplistic percentage comparisons”  
and observed:

“ We share the view expressed in the dissent that facts in 
a case like the instant one, ‘ when seen through the eyes of 
judges familiar with the context in which they occurred, may 
have special significance that is lost on those with only the 
printed page before them.’ * * * That is one reason why we 
believe that the Court of Appeals, ‘with only the printed page 
before [it] . . . , ’ erred in reversing the District Court. The 
judge most ‘ familiar with the context in which [the facts] 
occurred . . . ’ was obviously the District Judge, since he heard 
and viewed the testimony and other evidence presented.”  Id., 
at 620, n.2Q.



8a

would require the court to close its eyes to the changes 
which have taken place in Charles County during the past 
ten years. We are unaware of any constitutional principle 
which would require that the racial ratios which existed 
in the school system of the county in 1966-67 be rigidly 
maintained ad infinitum despite the changing character of 
the surrounding area. On the contrary, the inevitability of 
such changes was recognized by the Chief Justice in Swann 
v. Board of Education, 402 U.S. 1, 31-32 (1971).

“ It does not follow that the communities served by 
such systems will remain demographically stable, for 
in a growing, mobile society, few will do so. Neither 
school authorities nor district courts are constitution­
ally required to make year-by-year adjustments of the 
racial composition of students bodies once the affirma­
tive duty to desegregate had been accomplished and 
racial discrimination through official action is elim­
inated from the system. This does not mean that fed­
eral courts are without power to deal with future prob­
lems; but in the absence of a showing that either the 
school authorities or some other agency of the State 
has deliberately attempted to fix or alter demographic 
patterns to affect the racial composition of the schools, 
further intervention by a district court should not be 
necessary.’ ’

In our opinion the present case falls within this observation 
of the Chief Justice, and the record satisfies us that despite 
the changing population ratio the Board has taken reason­
able and affirmative steps to bring substantial numbers of 
qualified blacks into every facet of the school system.

Finally, a brief comment about the special committee re­
port upon which the dissent appears to place considerable 
reliance. In the spring of 1969 a dispute arose over the 
selection of majorettes at La Plata High School and at the 
suggestion of the Board of Education and the N A A CP a 
committee was appointed by the State Board of Education 
to make an investigation of a variety of complaints and 
report its recommendations to the Board. The committee



9a

was purely of an ad hoc nature and, as noted by the district 
judge, was not charged to apply either constitutional or 
statutory standards in its investigation. The committee’s 
investigation was not conducted as an adversary proceeding 
nor were the individuals interviewed by it subject to cross- 
examination. The State Board discussed the committee re­
port with representatives of the Charles County school sys­
tem and the NAACP and thereafter adopted some of the 
committee’s recommendations, modified some and refused 
to adopt others. Again, as noted by the district judge, the 
action of the State Board on the report did not purport to 
be based upon either constitutional or statutory principles.8

While the dissent does not go so far as to accept the 
plaintiffs’ contention that the district court was bound by 
the committee report and had a responsibility to enforce its 
findings as well as the recommendations of the State Board, 
it nevertheless relies upon the report as demonstrating “ a 
history of segregation”  under the Keyes formula. This, we 
think, accords the report an unwarranted role in this litiga­
tion. While the district judge permitted the committee re­
port to be introduced into evidence, he ultimately reached 
the conclusion that its relevant findings lacked support and 
made his independent findings based on the evidence before 
him. In doing so he acted well within the permissible area 
of his discretion. Even if the report were conceded some 
official gloss its admissibility would be highly questionable, 
see Moss v. Lane Company, Incorporated, 471 F.2d 853 (4 
Cir. 1973); Cox v. Babcock and Wilcox Company, 471 F.2d 
13 (4 Cir. 1972), and in any event, it “ is in no sense binding 
on the district court and is to be given no more weight than 
any other testimony given at trial.”  Smith v. Universal

8 It was conceded by the plaintiffs that none of them had seen fit 
to pursue the available Maryland statutory remedy by which a 
person aggrieved by actions of the county school administration 
may present a complaint to the School Board and, if dissatisfied 
with the action of the Board, appeal to the State Board of Educa­
tion. Anno. Code of Md., Art. 77 § 59 (1969 Repl. Vol.)



10a

Services, Inc., 454 F.2d 154, 157 (5 Cir. 1972). The fallacy of 
placing any operative reliance on the report is more readily 
apparent if we reverse the circumstances. Had the state 
committee given carte blanche approval to the manner in 
which the Charles County schools were being operated, we 
doubt that anyone would seriously contend that such a re­
port would constitute a defense to the plaintiffs’ law suit or 
that it would be entitled to any substantial evidentiary con­
sideration on the issues.

In our opinion the district court granted full and appro­
priate relief and we affirm its judgment in all respects.9

AFFIRMED

B utzner, Circuit Judge, dissenting: ,
This case reaches the wrong result because of two basic 

errors of law. The first error is the allocation of the bur­
den of proof, which was placed on the black complainants. 
It should have been placed on the school board in con­
formity with Keyes v. School District No. 1, Denver Colo­
rado, 413 U.S. 189, 209 (1973), which teaches that “ in a 
school system with a history of segregation, the discharge 
of a disproportionately large number of Negro teachers 
incident to desegregation ‘ thrust [s] upon the School Board 
the burden of justifying its conduct by clear and convinc­
ing evidence.’ ”  Therefore, the initial inquiry should be 
to determine whether the Charles County school system 
has a history of segregation.

Until 1954 the county board operated a dual system, and 
not until 1967 were all of the schools desegregated. In the 
course of integrating the pupils, the racial composition of 
faculties underwent changes that were investigated by a 
special committee appointed by the Maryland State Board

9 The cross-appeal of the Board of Education challenges the 
award of damages to Mrs. Pinkney, but we are not persuaded that 
the finding of the district court on her claim was clearly erroneous.



11a

of Education. The committee filed an extensive report con­
demning the racial discrimination practiced by the school 
board in hiring and promoting the schools’ professional 
and administrative staffs. The State Board of Education 
approved the committee’s recommendations calling for the 
extensive recruitment of qualified black personnel and the 
establishment of fair and clear procedures for promotion 
that would apply equally to all candidates. When it became 
apparent that the school board was disregarding these 
recommendations, black students, parents, and faculty in­
stituted this action. The first factual predicate for shifting 
the burden of proof mentioned by Keyes is “ a history of 
segregation.”  The school board’s former operation of a 
dual system of schools and the report of the State Board 
of Education amply demonstrate that this prerequisite 
has been met.

The second element of the Keyes- formula is also satis­
fied. The record demonstrates that, incident to desegrega­
tion of the schools, the board disadvantageously treated a 
disproportionately large number of black personnel, not by 
discharge, as mentioned in Keyes, but by its hiring and 
promotion policies. For the purposes of shifting the bur­
den of proof, the difference between discharging black 
teachers and refusing to hire or promote them is incon­
sequential. The board’s practices, though more subtle than 
outright discharge, nevertheless disproportionately dimin­
ish the black faculty. The record shows that when the 
pupils were segregated, 50 percent of the principals were 
black and 50 percent were white. After desegregation of 
the schools, the percentage of black principals decreased 
to 30 percent and that of white principals increased to 
70 percent. Before desegregation, black teachers consti­
tuted 44.2 percent of the faculties, but by 1973 the ratio 
had dropped to 27.4 percent.

I therefore conclude that both of K eyes’ factual pre­
requisites for shifting the burden of proof have been satis-



12a

fied and that it was error to fail to place on “ the School 
Board the burden of justifying its conduct by clear and 
convincing evidence.”  413 U.S. at 209.

The school board, however, contends that even if the 
burden shifted, the judgment should be affirmed. But a 
proper examination of the record refutes its claim. This 
brings us to the second basic error of law that flaws this 
case: the fallacious premise that the evidence must reveal 
purposeful discrimination in order for the complainants 
to prevail. This is contrary to Wright v. Council of the 
City of Emporia, 407 U.S. 451 (1972). Wright teaches 
that in deciding whether a school board has acted law­
fully, a court must focus “ upon the effect—not the purpose 
or motivation—-of a school board’s action.”  407 U.S. at 
462. Rather than ascribe good or evil motives to the board, 
it is sufficient to look to the effect of its conduct on the 
professional staff.

The record disclosed that despite the admonition of the 
State Board of Education to recruit qualified black per­
sonnel extensively, the school board has curtailed recruit­
ment. In 1967-1968 there were 14 recruiting visits by blacks 
to various colleges. In 1968-1969 there were none, but dur­
ing the same term there were 76 recruiting visits by whites. 
Recruiting by blacks picked up temporarily after the State 
Board of Education criticized the county board, but in 
1973-1974 the number of visits dropped to two. The lack 
of the board’s recruitment efforts has a significant effect 
—the board hires four white teachers for every black. This 
disparity cannot be attributed to unequal qualifications. 
From 1967 to 1973 the board hired 47 white teachers and 
only 4 black teachers with no degree and low state certifi­
cation. In 1971 the supervisor of personnel services di­
rected his assistant to select for interviews from among 
the black applicants only those with a superior or above 
average rating. No similar limitation for white applicants 
was disclosed. It is quite clear, therefore, that the disparity 
in the board’s hiring of blacks and whites cannot be at-



13a

tributed to rational quality control. Moreover, the absence 
of fair and clear procedures for promotion that apply 
equally to all candidates has resulted,. during the years 
following integration of the pupils, in doubling the num­
ber of white principals while the number of black prin­
cipals remained static.

The school board also places emphasis on the demo­
graphic changes in Charles County, intimating that an 
increase in the number of white pupils justifies the pro­
portionate shift to white teachers. This argument flies in 
the face of Chambers v. Hendersonville City Board of 
Education, 364 F.2d 189, 192 (4th Cir. 1966), where we 
held ‘ ‘ reduction in the number of Negro pupils [does] not 
justify a corresponding reduction in the number of Negro 
teachers.”  Furthermore, this court has never subscribed 
to the theory that the racial composition of faculties should 
mirror the racial composition of student bodies. Indeed, if 
this new theory were to be applied conversely where black 
pupils outnumber white, some of the largest cities in this 
circuit would have to radically change the racial compo­
sition of their administrative and teaching staffs, an obli­
gation that this court has never heretofore seriously con­
sidered.

The school board also contends that the decrease in 
proportion of black teachers is due to lack of enough black 
applicants in the county to staff the schools and to inade­
quate housing in the county. Yet the board does not look 
only to the availability of white teachers living in the 
county, and for years both black and white teachers have 
been recruited from colleges all over the country. Conse­
quently, the number of black applicants who live in the 
county is irrelevant. Further, white employees recruited 
from outside the county have to find housing, so the lack 
of housing is also irrelevant.

In sum, the board has utterly failed to justify its con­
duct by clear and convincing evidence as required by Keyes



14a

v. School District No. 1, Denver, Colorado, 413 U.S. 189, 
209 (1973). I would, therefore, reverse the district court’s 
judgment on this aspect of the case and remand for the 
entry of class relief that would assure the termination of 
the board’s discriminatory hiring and promotion policies. 
The board should be required to establish definitive ob­
jective standards for employment and promotion and to 
apply them alike to all personnel “ in a manner compatible 
with the requirements of the Due Process and Equal Pro­
tection Clauses of the Constitution.”  Chambers v. Hender­
sonville City Board of Education, 364 F.2d 189, 193 (4th 
Cir. 1966); see also "Walston v. County School Board of 
Nansemond County, Virginia, 492 F.2d 919 (4th Cir. 1974); 
North Carolina Teachers Association v. Asheboro City 
Board of Education, 393 F.2d 736 (4th Cir. 1968); Wall v. 
Stanly County Board of Education, 378 F.2d 275 (4th Cir. 
1967).

The district court denied 13 claims pressed by individ­
uals who charged they were prejudiced by the board’s 
discriminatory employment policies. It also declined to 
allow the case to proceed as a class action embracing all 
black applicants who had been denied teaching positions 
or promotions.

The basic errors of law that invalidate the denial of in­
junctive relief also permeate the dismissal of the individ­
ual claims. The court erroneously placed the burden of 
proving racial prejudice or discriminatory purpose on the 
individual claimants. For example, a black principal, Wil­
liam L. Griffis, who had served for 16 years in a black 
school was demoted over the protest of all the teachers in 
his school one year after the pupils were integrated. The 
district court accepted the board’s conclusory statements 
that he was a weak administrator and that his supervisors 
had not recommended him. It made no finding of the under­
lying facts about his alleged lack of ability, and it ruled 
that Griffis had failed to prove that the board’s decisions



15a

were “ made on the basis of race, or because of any racial 
prejudice.”  However, as I have previously mentioned, the 
principles of law dictated by Keyes v. School District No. 
1, Denver, Colorado, 413 U.S. 189, 209 (1973), and Wright 
v. Council of the City of Emporia, 40 U.S. 451 (1972), 
require the school board to assume the burden of proof and 
the court to evaluate the evidence by ascertaining the effect 
of th school board’s actions, not its motivation.

The class action aspect of the case is not essentially 
different from other employment cases involving racial 
discrimination for which there is ample precedent for class 
relief. E.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971) ; 
Walston v. County School Board of Nansemond County, 
Virginia, 492 F.2d 919 (4th Cir. 1974); Bock v. Norfolk 
and Western Railway Co., 473 F.2d 1344 (4th Cir. 1973); 
North Carolina Teachers Association v. Asheboro City 
Board of Education, 393 F.2d 736 (4th Cir. 1968). Accord­
ingly, I would vacate those portions of the judgment that 
dismiss the class action and the claims of individual com­
plainants and remand the case for reconsideration in light 
of Keyes- and Wright.



16a

APPENDIX B

Judgment of Court of Appeals

[Caption Omitted]

A ppeal F rom the United States District Court for the 
District of Maryland.

T his Cause came on to be heard on the record from the 
United States District Court for the District of Maryland, 
and was argued by counsel.

Oh Consideration W hereof, it is now here ordered 
and adjudged by this Court that the judgment of the said 
District Court appealed from, in this cause, be, and the 
same is hereby, affirmed.

Filed July 24, 1975

W illiam K. Slate, II 
Clerk



17a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND

Civil No. 71-64-T

J oseph H . M orton, W illiam L. Griffis, M ilbourne F. 
H ull, V eronica A dams, A nnie C. Y ates, M ary L inda 
P later, infant, through her father, Charles L. Plater, 
Sr., M ary T heresa W ashington, infant, through her 
mother, M rs. D oris C. W ashington,

Plaintiffs,
Cordelia E . K ing, E lnora P in kn ey , R aymond F. Sander- 

lin , J erome F . T hompson, L acey T illotson, Sandra 
W ashington H earns, K enneth  W right, J oseph A . 
J ones, B ertha K ey,

Intervening Plaintiffs
v.

Charles County B oard of E ducation, James E. W ilson, 
individually and as a member of the Charles County 
Board of Education, B. Patrick Cox, individually and 
as a member of the Charles County Board of Educa­
tion, J oseph L. Gardiner, individually and as a mem­
ber of the Charles County Board of Education, D aniel 
C. Gardner, individually and as a member of the 
Charles County Board of Education, Joan L. B owling, 
individually and as a member of the Charles County 
Board of Education, M rs. A lfred Paretta M udd, in­
dividually and as a member of the Charles County 
Board of Education, Jesse L. Starkey, individually 
and as Superintendent of Schools, Charles County, 
Maryland, Charles County Board of Education,

Defendants.

Filed: March 6, 1974



18a

Elliott C. Lichtman, of Washington, D.C., James C. Gray, 
Jr., of New York, N.Y. (Rauh and Silard, of Washington,
D.C., Mitchell & Mitchell, of Baltimore, Md.; Jack Green­
berg, James M. Nabrit, III, and Norman Shachkin, of New 
York, N.Y., of counsel) for plaintiffs and intervening plain­
tiffs.

William L. Marbury, E. Stephen Derby, Judith K, Sykes, 
of Baltimore, Md., and Edward S. Digges, of La Plata, Md., 
for defendants.

T homsen, District Judge

This action was instituted in January 1971 by eight black 
persons against the Charles County Board of Education 
(the Board),1 the persons who were then members of the 
Board,2 and the Superintendent (Starkey).3

Six of the plaintiffs alleged that they were suing on be­
half of themselves and a class of black persons refused 
employment, refused promotions, demoted or discharged 
by defendants on grounds of race. They seek damages and 
injunctive relief under the Thirteen and Fourteenth 
Amendments, under 42 U.S.C. §§ 1981, 1982 and 1983, and

1 The Board had been an appointed board until 1970, when by 
statute, Acts of 1970, Ch. 386, Art. 77, § 35A, Anno. Code of Md., 
1973 Cum. Supp., it became an elected board. The County School 
Board does not control the amount of its budget. The Board of 
County Commissioners determines the amount which shall be 
allowed to the School Board for each school year, usually in June 
for a year beginning July 1.

2 Six of the defendants took office on December 14, 1970, after 
their election. No one of them had been a member before that date. 
A seventh member took office on the day this section was filed, and 
has not been added as a defendant. Two of the defendants (Cox 
and Daniel Gardner) resigned, on April 30, 1972, and June 30, 
1972, respectively.

3 Starkey became Superintendent on July 1, 1969, having been 
Assistant Superintendent or Deputy Superintendent since 1965.



19a

under Art. 77, § 113 4 of the Annotated Code of Maryland. 
They claim that the amount in controversy for each plain­
tiff exceeds $10,000, and invoke jurisdiction under 28 
U.S.C. § 1331, as well as §§ 1343(3) and 1343(4).

Two of the plaintiffs are students in the Charles County 
school system, who, through their parents, alleged that 
they were suing on behalf of themselves and as represent­
atives of a class consisting of all students attending schools 
in Charles County who are being deprived of their civil 
rights because defendants have maintained racially iden­
tifiable faculties.

Although counsel had agreed among themselves that de­
termination of the class action issue be delayed until the 
trial, the court, after extensive discovery, set the matter 
for hearing on November 9, 1973, and determined on that 
date that the prerequisites to a class action had not been 
met.5 *

4 Art. 77, § 113 provides:
“ Discrimination on account of race, religion, color, national 
origin, or sex unlawful.

“ It shall be unlawful for the State Superintendent of Schools 
or any of his assistants, and for any board of education and any 
superintendent of schools or any of his assistants to make any 
distinction or discrimination in favor of or against any teacher 
who may be employed in any of the public schools of this State, 
on account of race, religion, color, national origin, or sex except 
where the employment of a certain sex may be reasonably necessary 
by reason of the nature of the employment, it being the intent 
and purpose of this section that the provisions thereof shall apply 
with reference to the appointment, assignment, compensation, pro­
motion, transfer, dismissal, and all other matters pertaining to 
the employment of teachers in the public schools in the State of 
Maryland. ’ ’

5 The court ruled that the requirements of subsection (a) (1)
of Rule 23, F. R. Civ. P., had not been met, and that the require­
ments of (a) (3) and (a) (4) had probably not been met. The 
evidence at the trial supported this conclusion; the circumstances 
surrounding the individual claims varied greatly.



20a

On November 23, 1973, nine persons moved to intervene 
as plaintiffs,6 alleging acts of racial discrimination at vari­
ous times, the first in 1964 and the last in 1973. The run­
ning of limitations was tolled during the period from the 
institution of this case as a class action on January 22, 
1971, until this court ruled, on November 9, 1973, that class 
action treatment was inappropriate. American Pipe & Con­
struction Co. v. Utah, ------  U.S. ------ , 42 U.S. L.W. 4155
(1974). Questions of limitations and laches with respect to 
some of the claims remain.

The case came on for trial on December 10, 1973. Testi­
mony was taken on twelve days; more than 300 exhibits, 
some quite extensive, were offered. At the conclusion of the 
plaintiffs’ case, the court granted the motion of the indi­
vidual defendants other than Starkey, for a judgment in 
their favor in their individual capacity under Rule 41(b), 
F. R. Civ. P., and granted a similar motion by Starkey 
with respect to seven of the plaintiffs. Counsel for plain­
tiffs did not object to these rulings. The case proceeded 
against Starkey with respect to the claims of the other 
plaintiffs, and against the Board with respect to the claims 
of all plaintiffs. Elaborate post-trial briefs have been filed, 
and oral argument has been heard.

Some facts have been stipulated. The determination of 
other facts upon which the rights and obligations of the 
several plaintiffs and the several defendants depend re­
quire a consideration o f : the history of the Charles County 
school system over the years; a mass of statistical infor­
mation;7 the various records of the individual plaintiffs 
and of others who were appointed to or considered for the 
positions in question; and the credibility and weight of the

6 Counsel for plaintiffs had advised the court and counsel for 
the defendants on October 1, 1973, that evidence would be pre­
sented at the trial concerning alleged acts of discrimination against 
those individuals.

7 Without careful study some of the tables might be misleading.



21a

testimony of the many witnesses who testified with respect 
to general policies as well as to the facts particularly 
applicable to the incidents in question. -

Defendants moved for summary judgment because of 
plaintiffs failure to exhaust administrative remedies, but 
the parties agreed that the motion be argued at trial. Since 
a full evidentiary hearing has been held, a regard for 
judicial economy precludes staying decision or dismissing 
the case on this ground. There is no need to determine 
whether exhaustion of administrative remedies would 
otherwise be required, and whether the administrative 
remedies would otherwise be required, and whether the ad­
ministrative remedies set out in Art. 77, § 150, Md. Code 
(1965 Repl. Vol.), and Art. 77, §150, Md. Code (1969 
Repl. Vol.) are adequate remedies. See Gibson v. Berry hill, 
411 U.S. 564 (1973); Humphrey v. Cady, 405 U.S. 504, 
517 (1972); Hayes v. Secretary of Dept, of Public Safety, 
455 F.2d 798, 799-801 (4 Cir. 1972); Flaherty v. Conners, 
319 F. Supp. 1284, 1287 (D. Mass. 1970).

A. Alleged Pattern of Racial Discrimination

(1) History

Charles County is a rural county, with many small com­
munities. It is bounded on the north by Prince George’s 
County, a much larger county, adjacent to the District of 
Columbia. It is bounded on the other three sides by two 
rural counties, Calvert and St. Mary’s, and by the Potomac 
River. It has only recently received a substantial increase 
in population as a result of the expansion of the Wash­
ington suburbs.

In 1956, one year after the second Brown opinion, 349 
U.S. 294 (May 31, 1955), the Board adopted a freedom of 
choice policy for students entering the first grade in the 
1956-57 school year. All elementary grades were desegre­
gated on a freedom of choice basis by the 1960-61 year, 
all middle school grades by the 1961-62 year and all grades,



22a

including high school, by the 1962-63 year. For the 1964-65 
year the Board eliminated the requirement that requests 
for transfers be approved, and required all parents to 
make an affirmative choice, in order to be sure that the 
right of freedom of choice was understood and exercised 
without restriction. That is all that was required by even 
the subsequent decisions of the Fourth Circuit in 1965 and 
1967. Bradley v. School Board of the City of Richmond, 
Virginia, 345 F.2d 310 (April 7, 1965); Boivman v. County 
School Board of Charles City County, Virginia, 382 F.2d 
326 (June 12, 1967). Exercising that freedom of choice, 
the parents of 296 black children, out of a total of 4,076, 
chose to send their children to formerly all white schools 
during the 1964-65 year; only two white children attended 
a formerly all black school; and there were only a few 
black teachers in the formerly all white schools and a few 
white teachers in the black schools. At that time there 
were eight predominantly white schools and eight black 
schools.

The freedom of choice doctrine remained the law of the 
Fourth Circuit until May 27, 1968, when the Supreme 
Court decided Green v. County School Board of New Kent 
County, 391 U.S. 430.

Meanwhile, in the summer of 1965 (nearly three years 
before the decision in Green), just after Starkey became 
Assistant Superintendent, the Board directed the staff to 
develop a reorganization plan for the complete integration 
of the system by redistricting according to geographical 
location, and providing for the necessary new buildings to 
take care of such integration as well as the increase in 
population of the County. The plan was adopted by the 
Board in October, 1965; it was implemented for the high 
schools for the 1966-67 school year and for the elementary 
schools for the 1967-68 year.

As in many other school systems, the integration of the 
schools, followed by the abandonment of merger of some



23a

old schools and the building of some new schools due to 
an increase in the population of the county, created new 
and difficult problems with respect to teachers and admin­
istrators. The population of Charles County increased 
46% (from 32,000 to 47,000) between 1960 and 1970. The 
increase was predominantly white.8 The student popula­
tion increased from 7,410 (of whom 46% were black) in 
the school year 1960-61, to 16,358 (of whom only 34% 
were black) in the school year 1973-74.

(2) Principals and Other Administrators

The number of black principals has increased from 6 
to 8 during the same period, but the number of white 
principals has increased even more rapidly, so that the per­
centage of black principals is now 30.7%, whereas it was 
37.5% in 1966-67.

The number of black vice principals has increased from 
4 to 6, and the percentage of black vice principals has 
remained about the same, 44.4% to 46%.

This integration has required a considerable readjust­
ment of the staffs of the several schools. Beginning with 
the high schools in 1966-67, a policy was adopted that when 
a school was large enough to have a principal and a vice 
principal, if the principal of the school was white, the vice 
principal should be black, and vice versa. This policy has 
been generally followed.

The number of black administrators in the central of­
fice has risen from 4 to 10, the percentage from 20% to 
22%.

No black teacher, principal, vice principal or adminis­
trator has been discharged during the years in question 
because of his or her race.

8 In 1960 the ratio of white to black was 66-34; in 1970 it was 
71-29. A  high percentage of the population in 1970 (44% ) was 
under 18 years of age.



24a

Plaintiffs contend that the abandonment of an Adminis­
trative Intern Program by defendants was racially moti­
vated, and tends to prove a pattern of racial discrimina­
tion. This contention is not supported by the evidence; 
if any inference to that effect may be drawn from any of 
the evidence, the court finds that it is overcome by the 
weight of the evidence to the contrary.

Plaintiffs contend that there has been a pattern of prac­
tice of discrimination against blacks in the hiring and pro­
motion of principals and administrators. The evidence 
does not support this contention. Aside from the case of 
Mrs. Pinkney, discussed below, the court finds that plain­
tiffs have not proved that any black person was not ap­
pointed principal or administrator because of racial dis­
crimination.

The only occasions on which race was a controlling fac­
tor in the hiring or promotion of principals or vice princi­
pals was to carry out the policy of having a black vice 
principal where there is a white principal and a white vice 
principal where there is a black principal. The court finds 
that this policy at the present time in Charles County 
ioes not violate any constitutional right, and is a wise 
policy.

(3) Recruiting and Hiring Teachers

The number of teachers has, of course, increased. A l­
most all of that increase has been in the number of white 
teachers; the number of black teachers has risen from 
198 to 207, but the percentage of black teachers has de­
creased from 44.2% to 27.4%, for reasons discussed be­
low. In each year at least 17% of the new teachers em­
ployed have been black.

No plaintiff contends that he or she was not appointed 
a teacher because of his or her race. Indeed there is no 
evidence that any qualified black applicant has been denied 
employment as a teacher.



25a

Plaintiffs contend, however, that the recruiting policies 
of the Board and superintendent are racially motivated. 
To support this argument, they note that the recruiters, 
most of whom are white, have over the years visited more 
predominantly white colleges and universities than pre­
dominantly black colleges and universities.9 Since all pub­
lic colleges and universities and most private institutions 
are integrated, the fact that a majority of the students 
attending a particular institution may be white, does not 
mean that such institution is not the best place to find 
a qualified black prospect. The Constitution does not re­
quire that a school board recruit poor prospects of any 
race.

The demand throughout the nation for qualified black 
teachers during the years in question has been great; 
Charles County offers fewer attractions for black teach­
ers than such communities as the City of Washington and 
Prince George’s County.

It is true that more white persons with low certification 
have been employed as teachers than black persons with 
low certification. Almost all persons with low certifications 
have been hired from the local population just before the 
school year opened, after efforts to obtain better qualified 
persons, black or white, had failed to fill the ranks. The 
small percentage of black persons in Charles County who 
have a college education, as compared with white persons 
who have a college education is the reason why relatively 
few of them have been hired. In the last four years only

9 The recruiters have regularly visited all of the predominantly 
black colleges and universities in Maryland and the District of 
Columbia, as well as the predominantly white public colleges and 
universities, which are making serious efforts to obtain black stu­
dents; over the years they have also visited some black colleges in 
othe states. The number of institutions visited has varied from 
time to time. Recently only colleges and universities in Maryland 
and the District of Columbia have been visited, but those visited 
have large numbers of black students in the field of education.



26a

twelve persons with low certifications or no degree have 
been hired; of those nine were white and three were black.

Plaintiffs also argue that in the most recent years the 
average experience of black teachers hired has been great­
er than that of white teachers, and that this shows a pat­
tern of prejudice. The differences are slight, and the tables 
plaintiffs refer to show that they are often explained by 
the hiring of a very few people who interrupted their 
teaching for reasons not shown by the evidence and were 
rehired during the years in question.

The court finds that the policies of defendants with re­
spect to the recruiting and hiring of teachers does not 
tend to prove a policy of racial discrimination.

(4) Secretaries and Custodians

Plaintiffs argue that the high percentage of black cus­
todians and the relatively low percentage of black secre­
taries is evidence of a pattern of racial prejudice. The 
evidence does not support this contention. The percentage 
of black secretaries (about 18%), is greater than the per­
centage of blacks in Charles County with a high school 
education, despite the greater attractions of a job in the 
City of Washington or Prince George’s County. No testi­
mony was offered with respect to the hiring of custodians.

B. Complaints to State Board of Education

Sometime before the summer of 1969 the Charles Coun­
ty Branch of the NAACP received complaints from several 
persons, in and out of the system, that they had not been 
appointed to some position for which they had applied or, 
in the case of two principals, that they had been demoted 
on account of their race. In June of 1969, before Starkey 
became Superintendent and before any of the other indi­
vidual defendants became members of the Board, a disci­
plinary problem arose with respect to a substantial num­
ber of black students at the La Plata Senior High School.



27a

The problem was not handled wisely. Some twenty stu­
dents did not receive their diplomas at the commencement 
exercises. The parents of those students complained to the 
NAACP. That organization registered complaints with the 
State Board of Education on behalf of the several em­
ployees and the students.

The State Board appointed a committee of two blacks 
and two white to investigate the complaints, to note any 
deficiencies in the progress of integration, and to make 
recommendations to the State Board. They were not 
charged to apply constitutional or statutory standards. 
The committee interviewed many people and made a re­
port, which the State Board discussed with representa­
tives of the Charles County school system and of the 
NAACP branch. The State Board then filed a careful opin­
ion, dated July 16, 1970, not purporting to be based on 
constitutional or statutory principles, adopting some of 
the recommendations of the investigating committee, mod­
ifying some and refusing to adopt others. The opinion 
also included some good advice to the Charles County 
Board.

The court finds that a good faith effort to comply with 
almost all of the recommendations has been made. Any 
failure to comply with one or more of them does not tend 
to prove the intention of any defendant to discriminate 
against black people because of their race.

C. H.E.W. Action

In the spring of 1973 the Board, through Starkey, ap­
plied to the Federal Department of Health, Education and 
Welfare (H.E.W.) for funding under the Emergency 
School Aid Act (ESAA) of a “ Basic Project”  and a “ Spe­
cial Reading Project.”  Ted Nixon, a Civil Rights Special­
ist in the Regional Office of H.E.W., went to Charles 
County with a letter from the Regional Civil Rights Di­
rector to Starkey which called attention to certain pro-



28a

visions of the Regulations, stated that Charles County had 
had a disproportionate reduction of black principals since 
the 1964-65 school year, and asked that certain informa­
tion he submitted within three days. While in the County, 
Nixon interviewed various persons, and Starkey sent him 
a letter dated June 7, giving the requested information 
about twelve persons.

On June 22, 1973, the Regional Office sent Starkey a 
letter from Walker F. Agnew, the Regional Commission­
er,10 citing ESAA Regulations, 45 CFR § 185.43(b) (2), 
and § 706 (d) (1) (B) of Public Law 92-318,”  and stating 
that because of the demotions of Mrs. Elnora Pinkney 
and James Sweatt from principal to vice principal in 
1965-66 and the failure to appoint them as principals in 
subsequent years, and because during the visits of Nixon 
to Charles County “ the resolution of the problem was 
not effected,”  the Charles County application was re­
jected without a hearing.

Defendants do not question the right of ET.E.W. to deny 
funding if the statute and the regulations are not complied 
with. Defendants properly note that the language of that 
statute and of the regulations goes beyond the require­
ments of the Constitution and the statutes upon which 
plaintiffs rely in his case. Defendants also argue that 
souk; of the conclusory statements in the Agnew letter 
should not be given much, if any, weight by this court. 
The court agrees.

D. Burden of Proof

The evidence does not show a pattern of racial discrim­
ination. See particularly the facts set out above under the 
headings “ Principals and Other Administrators”  and “ Re­
cruiting and Hiring Teachers.”

10 But evidently prepared and sent by Nixon, because a copy 
was sent to Agnew. 11

11 Codified as 20 U.S.C. 1605 (d) (1) (B ).



29a

This case is nothing like Chambers v. Hendersonville 
City Board of Education, 364 F.2d 189 (4 Cir. 1966), 
North Carolina Teachers Assn. v. Asheboro City Board 
of Education, 393 F.2d 736 (4 Cir. 1968), or Walston v. 
County School Board of Nansemond County, ——  F.2d
------  ( 4Cir. 1974).12 In each of those cases a substantial
number of black teachers had been discharged when the 
schools were integrated. In the instant case there is no 
claim or evidence that any teacher or principal was dis­
charged because of his or her race. Over the years three 
black principals have been demoted.13 One of the three 
(William Griffis) was an original plaintiff; one (Mrs. 
Pinkney) intervened as a plaintiff in the fall of 1973; 
their cases are discussed individually below. The third 
(James Sweatt) is not a plaintiff and did not testify in 
this case; he made a statement to the State Board that 
he did not think he had been discriminated against. In 
the case of Griffis this court has found that the principal 
was not demoted on account of his race; in the case of 
Mrs. Pinkney, the court is granting relief because of fail­
ure to appoint her to another principalship. That one 
instance does not prove a pattern.

The burden of proof remains on each plaintiff to prove 
his or her case by a preponderance of the evidence. Of 
course, each plaintiff may rely on the testimony of the 
other plaintiffs and the evidence offered on behalf of all 
of them, as well as any evidence offered by defendants.

E. Individual Claims
(1) Infant Plaintiffs—Racial Composition of Faculties

Counsel for infant plaintiffs and their parents have pre­
sented a table showing the percentage of white and black

12 Nor are the facts of this case like those in Chance v. Board 
of Examiners and Board of Education of the City of New York, 
330 F. Supp. 203 (S.D. N.Y., Mansfield, J., 1971), affirmed 458 
F.2d 1167 (2 Cir. 1972), or any of the other cases cited and 
relied on by plaintiffs.

13 Principals have tenure as teachers not as principals.



30a

teachers in each school over a period of years, and argue 
that this shows racially identifiable faculties throughout 
the system. Plaintiffs argue that the percentage of black 
teachers in any school should never be more than 25% 
more or less than the percentage of black teachers through­
out the system.

The law controlling this case is set out in Nesbit v. 
Statesville City Board of Education, 418 F.2d 1040 (4 
Cir. 1969), as follows:

“ All plans must include provisions for the integra­
tion of the faculty so that the ratio of Negro and 
white faculty members of each school shall be approx­
imately the same as the ratio throughout the system. 
In determining the ratio, exceptions may be made for 
specialized faculty positions;”  418 F.2d at 1042.

That decision followed closely United States v. Mont­
gomery Board of Education, 395 U.S. 225 (1969), where 
the Court approved Judge Johnson’s order that the board 
must move toward a goal under which in each school the 
ratio of white to Negro faculty members is substantially 
the same as it is throughout the system. 395 U.S. at 232, 
236.

The tables show that Charles County has been moving 
toward the goal with reasonable speed. The ratio sug­
gested by the attorneys for the plaintiffs has been substan­
tially attained in all but five of the twenty-six schools in 
the current school year. One of the five is the Vocational 
Technical Center, which includes many “ specialized fac­
ulty positions.”  See 418 F.2d at 1042, quoted above. In 
three of the other four schools the shifting of one teacher 
would bring the school into conformance with plaintiffs’ 
suggested test; in one other school the shifting of two 
teachers would be necessary.14

14 There are five other schools in which the variance from plain­
tiffs’ suggested test is less than one percent. This is substantial 
compliance.



31a

Teachers are not fungible. Some are trained in one 
subject, some in another. Some have developed special 
skills for dealing with particular subjects or with stu­
dents or groups of students having particular problems. 
The purpose of a school system is to give students the best 
possible education, including preparation for life in Amer­
ica in the last quarter of the Twentieth Century. This 
must be done in accordance with constitutional require­
ments established by the Supreme Court. It is not always, 
if ever, an easy task. See discussion in Walston v. County 
School Board of Nansemond County, supra, ——■ F.2d at 
------  (slip opinion p. 15).

Moving teachers who have lived or taught or both in a 
particular rural area for years and are familiar with the 
problems of that area may be not only unkind to the teach­
ers but harmful to the educational progress of the stu­
dents. Nevertheless, this court is bound by the decisions 
of the Supreme Court and of the Fourth Circuit to de­
clare that the Board and the Superintendent should take 
steps to assure that in the schools without specialized 
faculty positions “ the ratio of Negro and white faculty 
members shall be approximately the same as the ratio 
throughout the system,”  418 F.2d at 1042.

That should be done before the opening of the 1974-75 
year.15 Efforts should be made to change the ratio in the 
Vocational Technical Center whenever that is practicable.

In view of the progress made by defendants, it would 
not be appropriate for this court to issue the injunction 
sought by the two infant plaintiffs.

15 The court recognizes the difficulties which exist because of the 
small number of teachers in some of the schools and the fact that 
a single retirement, death or illness before or during a particular 
school year may create an imbalance. Nevertheless, the Board and 
staff should make every reasonable effort to meet the required test.



32a

(2) Demotions 
Elnora Pinkney

From 1952-53 through 1965-66 Mrs. Pinkney was an ele­
mentary school principal at the Bel Alton High School, 
which was conducted in the same building as the Bel Alton 
High School. Both schools had only black pupils during 
that period. In 1965-66 Mrs. Pinckney was principal of 
grades 1-6, with 275 students, and James Sweatt, also black, 
was principal of grades 7-12.

As a result of the plan of integration, Bel Alton became 
a consolidated school, with one principal and a vice prin­
cipal. Grades 1-5 and 9 were the only grades at Bel Alton 
during the year 1966-67. Of the 602 students in the school 
that year, 405, of whom 216 were white, were in grade 9. 
Bel Alton was classified by the State Department of Edu­
cation as a high school, and its principal had to hold a 
certificate as a secondary school principal. Mrs. Pinkney 
did not have such a certificate. James Campbell, a white 
man, who had such a certificate, became principal of the 
consolidated school. Mrs. Pinkney became vice principal, 
in accordance with the general policy of having the vice 
principal black when the principal was white, and vice 
versa.

As vice principal in 1966-67 Mrs. Pinkney went onto 
the vice principal scale. Although her salary in 1966-67 
was about the same as her salary as principal in 1965- 
66, she made less than she would have made as a principal, 
depending upon the size of the school.

Starkey knew that Mrs. Pinkney wanted to be a prin­
cipal, and told her when she was appointed vice principal 
of Bel Alton in the summer of 1966 that he hoped she 
would take the position until something better came along. 
Mrs. Pinkney served as vice principal at Bel Alton for 
three years, ending in 1968-69.

Four principals for elementary schools were appointed 
or shifted for the year 1969-70, because of the opening of



33a

a new school, the Gale-Bailey School. Mrs. Pinkney filed a 
timely application for appointment as a principal for the 
year 1969-70.

The principalship of Gale-Bailey, a school with 463 stu­
dents, was filled by the transfer of Dale Arbogast (white) 
from Indian Head, 738 students. The principalship of 
Indian Head was filled by the transfer of Fred Berry 
(white) from Dr. Mudd, 564 students. The principalship 
at Dr. Mudd was filled by the transfer of a white woman 
from Waldorf, 320 students.

The principalship at Waldorf was filled by the appoint­
ment of a white woman, who had only a provisional cer­
tificate. None of the four persons appointed or shifted 
had greater qualifications than Mrs. Pinkney, whom the 
court finds to have been a thoroughly competent principal.

Shortly thereafter Mrs. Pinkney applied for and was 
appointed to the position of pupil personnel worker in 
the central office. She was offered the principalship of a 
very small school in 1973, when she was 65 or 66 years 
of age, but she naturally preferred to- remain as pupil 
personnel worker, for which she had taken additional 
courses.16

The court finds that it was not unreasonable or discrim­
inatory to appoint Campbell to be principal of the com­
bined Bel Alton school in 1966, nor to appoint Mrs. Pink­
ney vice principal of that school. Moreover, limitations 
had run on acts in 1966 before this suit was passed.

But no adequate justification has been shown for passing 
over Mrs. Pinkney in favor of a white person in the four 
appointments of elementary school principals in the sum­
mer of 1969. The court does not depart from its finding, 
set out above, that there was no pattern of prejudice

16 The small size of the school would have meant a relatively 
low salary.



34a

in the Charles County school system during the years in 
question. But the court does find that race was a factor 
in denying Mrs. Pinkney appointment as a principal be­
fore and during the year 1969-70, when a less qualified 
white woman and three other persons were appointed to 
elementary school principalships for which Mrs. Pinkney 
had applied.17

The court concludes that Mrs. Pinkney should have 
been appointed principal of the Indian Head School for 
the year 1969-70 and subsequent years. The salary she 
would have received and would continue to receive in that 
position is substantially greater than the salary she has 
received and presumably will receive in her present posi­
tion. Counsel should agree upon the figures to be included 
in the judgment.18

Plaintiff has asserted a bona fide claim of more than 
$10,000, and this court has jurisdiction to grant relief to 
her.

William L. Griffis
Griffis came to the Charles County system in 1951 as 

principal of a two teacher elementary school; in 1954 he 
became principal of a six teacher elementary school; in 
1961 he became principal of the Mt. Hope Elementary 
School, an eleven teacher school. That school became in­
tegrated for the school year 1967-68. Whereas in 1966-67 
there had been 268 pupils, all black, in 1967-68 there were 
293 pupils, 188 black, 105 white.

Griffis is a fine, sympathetic person, interested in people 
and anxious to help them. He is really too sympathetic 
to be a fully effective administrator.19 For several years

17 The court does not accept defendants’ argument that Mrs. 
Pinkney was too old for the job.

18 Including any effect on retirement benefits.

19 E.g., he had not submitted an unsatisfactory report on a teacher 
over many years.



35a

before 1967-68 there had been some justified and some 
unjustified complaints about his effectiveness as a princi­
pal. In October 1967 Griffis met with Jenkins, Starkey and 
the chief personnel officer of the system, and the areas 
of ineffectiveness were discussed. In the spring of 1968 
two of the supervisors were critical of his performance.

When it was rumored that Griffis would be transferred 
to another position the teachers at the school supported 
him; the parents of the students were divided. At the 
end of the year 1967-68, Jenkins transferred Griffis to 
the position of Administrative Assistant at the Indian 
Head School, a large school with 666 white, 478 black and 
7 “ other”  students, and appointed a black man from out­
side the system to be principal of the Mt. Hope School.20

Griffis protested his demotion to the National Education 
Association, but the local organization of the NEA could 
not conduct an investigation because Griffis did not consent 
to the opening of his confidential file. He also refused to 
allow his file to be shown to a group of parents who pro­
tested his removal as principal at Mt. Hope.

Griffis was at Indian Head for two years. Thereafter, 
he has been assigned to various positions in various 
schools.

Beginning in February 1969 Griffis submitted four ap­
plications to be principal of an elementary school, but 
failed of appointment in each case. Griffis also applied for 
the position of Pupil Personnel Worker which Mrs. Pink­
ney, another plaintiff herein, received.

During the two years Griffis was Administrative As­
sistant at the Indian Head Elementary School, he was crit-

20 Only teachers have tenure; principals and vice principals have 
tenure only as teachers. The salary Griffis received as Administra­
tive Assistant at Indian Head was $12,073.43, more than he had 
received during the past year, but less than he would have received 
($12,726.80) if he had continued as principal at Mt. Hope.



36a

icized for spending too much time on routine matters 
and not enough time on major responsibilities, and be­
cause he did not show initiative in the area of instruction. 
Each of the two principals under whom he served stated 
that they could not recommend Griffis for appointment to 
the principalship of an elementary school.

Six of the thirteen elementary principals appointed be­
tween 1969-70 and 1973-74 have been black.

Anyone without a stone heart must be sympathetic with 
Griffis. This court cannot find, however, that his demotion 
from principal of the Mt. Hope school to his position at 
the Indian Head school and the subsequent refusals to 
appoint him as principal of another school were not made 
in a good faith effort to improve the quality of the admin­
istration of the schools and to find the spot where Griffis’ 
personality and abilities could be used to best advantage. 
The decisions were not made on the basis of race, or be­
cause of any racial prejudice.

(3) Failure to Promote 
Joseph A. Jones

Dr. Jones, an intervening plaintiff, who was a teacher 
of health and physical education in Charles County in
1964- 65 and is now on the faculty at Coppin State College, 
asserts no claim for damages and does not seek reinstate­
ment or appointment to any position. It is not clear what 
relief, if any, he seeks, except to join in the claim for a 
broad injunction. He testified that sometime prior to the
1965- 66 school year, he applied for the position of Super­
visor of Physical Education for that year. No one was 
appointed until two years later. There is no record of his 
application for that position, and the evidence shows that 
he applied for a position on the Coppin faculty in April 
1965 and was appointed. Jones contends that the Charles 
County position would have been given to a white man



37a

if lie had not applied and protested the proposed appoint­
ment. The evidence does not justify any such finding, and, 
in any event, the claim is barred by limitations and laches.

His second claim is also barred by limitations and laches. 
He testified that he made application in 1965 for a posi­
tion as vice principal after a notice of vacancies showing 
that four such positions would be open. He contends that 
he was only considered for one of those positions—in a 
black school. This is not improbable, because the system 
was in the early years of desegregation and integration, 
see “ History,”  above, but Jones delayed filing suit for so 
long that neither he nor defendants have any record of 
his application, if indeed it was made. There is a form, 
filled out by Jones, indicating both that he wished the 
same assignment that he had and that he did not expect 
to continue teaching in Charles County. The correspond­
ence with respect to his resignation was produced by de­
fendants, and does not support Jones’ testimony.

Raymond F. Sanderlin

Between May 1971 and January 1973, Sanderlin filed 
seven applications for various positions in the Charles 
County system. One of the applications was successful. 
He claims that the rejections of his six other applications 
were motivated by racial considerations. The court finds 
that in none of the rejections did racial discrimination 
play any role.

Sanderlin’s academic background and work experience 
were in the field of special education. He was a special 
education teacher from 1966 to 1971. He earned a master’s 
in special education in June 1972; all of the courses which 
he took to earn that degree were in that field.

In May 1971 Sanderlin’s application for admission to 
the Administrative Intern Program was rejected. Eight 
blacks had applied for admission to that program and



38a

twenty-one whites; four blacks and six whites were ac­
cepted. All candidates for the position were required to 
take the Miller Analogy Test, on which Sandrlien scored 
very poorly.

The Miller Analogy Test is a recognized test used by 
many graduate schools in determining which applicants 
should be admitted. The use of that test in screening ap­
plicants for admission to the Administrative Intern Pro­
gram is quite different from the use of the NTE Test con­
demned in Walston v. County School Board of Nansemond
County,------F.2d --------(4 Cir. 1974), where (1) the NTE
Test was used to determine which experienced teachers 
should be discharged, (2) the developers of the test stated 
that it was “ least valid when applied to experienced teach­
ers,”  and (3) where the use of the test as the sole criterion 
resulted in the discharge of fifteen black teachers and only 
two white teachers. There was no such disproportionate 
result from the use of the Miller Analogy Test as one 
of the factors for admission into the Administrative Intern 
Program. Nor was use of the Miller Analogy Test subject 
to the criticisms of the tests which were discussed in 
Chance, supra, 330 F. Supp. at 209 et seq., 458 F.2d at 
1170 et seq., 1174 et seq.

In October 1971, Sanderlin unsuccessfully applied for a 
position as a transportation specialist,21 a position which 
encompassed responsibilities such as setting up bus routes, 
assessing transportation needs, and compiling mileage 
records. Sanderlin had no background in that area. Two 
persons were chosen for the positions: Otto Williams 
(black) and Charles Wineland (white). Wineland had

Sanderlin claims not to have received any response to some 
of his applications. The Board did not have a large enough clerical 
staff to reply individually to each of the many applications re­
ceived for all sorts of positions. Notice of the availability and 
notice of the filling of each position were posted on school bulletin 
boards; thus every staff member who cheeked the boards could 
learn of the status of any application he had submitted.



39a

been certified in transportation by the State Department 
of Education; Sanderlin had not; it is not clear whether 
or not Williams had been certified.

In November 1971, Sanderlin applied for the position 
of “ learning disabilities teacher,”  a position for which 
he was qualified. He received that position.

In November 1971, Sanderlin again applied for admis­
sion to the Administrative Intern Program. He was 
screened by a committee of six people in February; he 
was recommended by three, while the other three recom­
mended him with reservations. He was appointed to the 
program by a letter dated March 3, 1972, but claims that 
he never received the letter. Whether or not Sanderlin 
received the letter became unimportant when the funding 
from the program was cut off before Sanderlin would have 
entered the program.

In May 1972, Sanderlin unsuccessfully applied for the 
position of principal. He did not then meet the minimum 
requirements for certification to be a principal, because 
he lacked the required courses in administration and su­
pervision, as well as particular courses which are required 
depending upon whether certification is sought as an ele­
mentary or a secondary school principal.

Sanderlin unsuccessfully applied for the position of “ Su­
pervisor of Special Education”  in the summer of 1972. He 
and two other candidates were screened, but the screen­
ing committee recommended a white candidate who not 
only had the formal preparation which Sanderlin had, 
but also had had administrative experience in Prince 
George’s County. On the screening committee was James 
Sweatt, a black man, who was then Supervisor of Special 
Education and would have been familiar with Sanderlin’s 
performance as a teacher over several years.

In January 1973, Sanderlin applied to be a diagnostic 
prescriptive resource teacher. The position was not fund­
ed, so no one was chosen.



40a

The court finds that racial discrimination played no 
part in the rejection of any of Sanderlin’s applications.

Cordelia King

Mrs. King claims that she was refused appointment as 
a principal or vice principal on several occasions because 
of her race.

After 20 years as a guidance counselor, Mrs. King ap­
plied in May 1971 for admission into the Administrative 
Intern Program, which was designed to develop principals, 
vice principals and other administrators. At the same time 
she applied for whatever positions as principal or vice 
principal might be open. She was accepted for admission 
into the Administrative Intern Program, but refused the 
opportunity because she learned that she could not be in 
that program and at the same time be a principal or a 
vice principal, and she hoped to be appointed to such a po­
sition at that time.

Mrs. King overlooked the fact that she needed 34 more 
semester hours to meet the minimum requirements set by 
the State Board for certification to be a principal, and the 
evidence shows that she was not eager to take such courses. 
When, during the previous autumn, her certificate to be 
a guidance counselor was in danger of not being renewed 
because she had not kept it green by taking six credit hours 
in her field in ten years, she asked Starkey to exercise his 
option to waive the requirement, and he did so. She wrote 
him a letter of appreciation in January 1971, in which 
she said: “ Aside from saving many dollars, time and effort 
for me, it gave me peace of mind to return fully to the 
business at hand—counseling students. This is my calling 
and one which I love dearly.” 22

She was not appointed a principal or vice principal in 
1971 or in the two subsequent years. It is interesting to

22 Mrs. King is obviously an able and forceful guidance counselor.



41a

note that some of the people in the Intern Program have 
been appointed.

Although both sides have argued many points, including 
the general policy of having a white vice principal when 
there is a black principal, and vice versa, the court finds 
that the reason Mrs. King was not appointed to the posi­
tions she sought was her lack of certification for a position 
as principal and her lack of willingness to do the work 
necessary to obtain it.23 There was no racial prejudice or 
discrimination involved.

Kenneth Wright

Wright was employed by the Board as a general mainte­
nance worker at the G-2 (semi-skilled) level from July 
1967 until July 1973, when he resigned to take a higher 
paying position with another employer.

His first claim arises from the hiring of a white man, 
Samuel Oliver, in November 1971, at the G-3 (skilled) lev­
el, with higher pay than Wright and with supervisory 
status over him. Oliver had special qualifications to be 
hired at the G-3 level; he had experience in carpentry, ma­
sonry, grading, painting and paperhanging. Wright’s ex­
perience was less than Oliver’s, and it was believed that 
Wright would benefit by working under him. No racial 
factor motivated the hiring of Oliver at the G-3 level, 
with supervisory status over Wright.

Wright’s second claim stems from the promotion of 
George Scott, a white man, to the only G-3 opening avail­
able for the 1972-73 school year, rather than Wright. Both 
the Director of School Facilities for the Board, and the 
foreman of the Maintenance Department believed in good

23 Defendants have reasonably believed that a person should not 
be appointed a vice principal unless he or she was prepared to 
advance to principal; they do not want a vice principalship to be 
a terminal job.



42a

faith that Scott’s talents were superior to Wright’s at 
that time. Their evaluations were of the sort that super­
visors often have to make. Their judgments were not in­
fluenced by any racial factor. A year later, in the summer 
of 1973, Wright was offered a promotion to the G-3 level, 
which he declined, because he was about to resign to take 
a position with another employer.24

(4) Terminations 
Annie C. Yates

Mrs. Yates was employed by the Board as a cafeteria 
manager from 1963 to 1968.

In June 1968, Mrs. Margaret Posey, Supervisor of the 
School Lunch Program, sent a memorandum to all prin­
cipals enclosing job specifications for cafeteria manager 
and stating: “ All managers for 1968-69 will be expected 
to assume the full responsibilities listed.”  Theretofore 
some of those duties had often been performed by princi­
pals, school secretaries, teachers and students. Without 
objection from her principal, Mrs. Yates had arranged 
for one of her assistants to perform a part of her duties.

In July 1968, Mrs. Posey conferred with Mrs. Yates and 
her principal. Mrs. Yates was told of the new policy, and 
testified that she got the impression that her principal 
thought she was not qualified for the job, because it would 
entail more paper work than she could handle. Mrs. Posey 
told Mrs. Yates that if she felt that she couldn’t handle 
the responsibilities of the position as manager, she was 
assured of a position as a full-time cook. Mrs. Yates there­
upon submitted her resignation.

A white woman was promoted to cafeteria manager for 
the school for the year 1968-69, and another for the year 
1969-70. In the summer of 1970, a black woman was ap-

24 This offer was made before Wright intervened in this ease.



43a

pointed and served until November 1970, when Mrs. Yates’ 
daughter was appointed and has held the position ever 
since.

The preparation of the job description was a good faith 
effort to upgrade the position of cafeteria manager 
throughout the system; the conference with Mrs. Yates 
was a legitimate attempt to assure that she knew her 
responsibilities and was willing to carry them out. There 
was no racial discrimination.

Milbourne Hull
After seven years as a teacher of vocational agricul­

ture, and 23 years as an Assistant Professor of Agricul­
ture with the Extension Service of the University of Mary­
land from 1944-1967, Hull was employed by the Board 
as Assistant in Federal Programs for the school years
1967- 68 and 1968-69. His salary of about $14,000 was fund­
ed principally by the Federal Government, the rest by the 
Maryland State Department of Education and Charles 
County.

The arrangement did not work out well. Starkey felt that 
Hull was a good liaison man with the Federal Government, 
but that he was not a good administrator. During the year
1968- 69 some of his responsibilities were assigned to others.

In February 1969 Starkey advised Hull that the pro­
posed budget for 1969-70 eliminated the position Hull held, 
but that it provided for a joint program with St. Mary’s 
and Calvert Counties. Starkey said that he would keep 
Hull advised so that he could apply for the tri-county po­
sition if he was interested.

The tri-county program did not materialize, not through 
any fault on the part of Charles County, and the Charles 
County budget for 1969-70 as finally passed eliminated the 
position of Assistant in Federal Programs. The position



44a

was reinstated in the budget for the following year and 
filled by another black man.

On May 17, 1969, Hull asked to be appointed Assistant 
Superintendent or Coordinator of Federal Programs or 
Coordinator of Recruitment of Personnel, positions which 
did not exist.

On June 27, 1969, Starkey informed Hull that the funds 
for the tri-county program for federal programs had been 
eliminated from the budgets of all three counties and re­
minded him that no funds had been provided for the posi­
tion of Assistant in Federal Programs. He informed Hull 
that his contract terminated June 30, 1969, but that de­
fendants could provide Hull with work for about ten days. 
He suggested that Hull contact Leviner, the Director of 
Personnel, about teaching positions which might be avail­
able.

Hull was screened for the position of administrative 
assistant to the superintendent on July 3, 1969, along with 
three others. The Screening Committee recommended John 
Bloom for the position. Hull was also recommended with 
the observation that he lacked school administrative expe­
rience. The position was not filled.25

He was given an opportunity to apply for a position as 
teacher or vice principal, but told Starkey that he was 
not interested in teaching and would accept a vice princi­
pal position only with the understanding that he could re­
sign upon fifteen days’ notice.

Hull secured the services of an attorney, James Mitchell, 
who by letter of July 30, 1969, requested that the Board 
employ Hull during August 1969, in order to enable him 
to seek another job. Hull was given a position from August 
7 to August 31. He obtained employment with H.E.W. in

2“ Later, other persons, white and black, applied for the position, 
including Mrs. Bertha Key, but the position was not filled during 
that school year.



45a

Charlottesville late in 1969, and later at Temple Univer­
sity, at salaries lower than his Charles County salary.

Hull had no tenure and knew it. The termination of 
the position he held in 1968-69 was not due to his race. 
Starkey was willing to give him certain jobs, but not those 
which Hull unrealistically asked for.

(5) Failure or Refusal to Hire 
Mrs. Bertha W. Key

Mrs. Key makes two claims of discrimination. In her 
first claim, she alleges that she applied for the position 
of Reading Coordinator in Charles County in 1963-64, but 
was denied the position on the basis of her race. Mrs. Key 
first asserted that claim in November 1973 when she in­
tervened in this case, almost ten years after any such 
claim accrued. Her first claim is barred by the statute of 
limitations.26

Mrs. K ey’s second claim stems from her application for 
the position of Administrative Assistant to the Superin­
tendent in August 1969. Mrs. Key applied for the position, 
and was screened for it. At her screening session, several 
of the interviewers expressed an interest in hiring Mrs. 
Key for the position of administrative assistant to a prin­
cipal, but Mrs. Key was only interested in the position 
of Administrative Assistant to the Superintendent. Be­
cause of severe budget cuts, that position was not funded 
or filled.27

She was not discriminated against on the basis of race.

26 The statute of limitations was tolled on this claim from January 
22, 1971, until November 1973, See Class Action discussion, above. 
The claim was already barred when this action was filed.

27 I f  the position had been filled, it is doubtful that Mrs. King 
would have been appointed; each of the five persons who inter­
viewed her, including two blacks, recommended her for the position 
with reservations.



46a

Sandra Washington Hearns and Lacey Tillotson

In late May 1968 Mrs. Hearns, Miss Tillotson and an­
other black woman came to Charles County to interview 
for two summer positions in social work, one with a Title I 
program, and one with Head Start. Two of the three now 
claim that they were discriminated against on the basis 
of race. The two jobs were awarded to two white women, 
who had the necessary qualifications, but all of the rec­
ords, except those of the two women who were hired, were 
lost or destroyed before Mrs. Hearns and Miss Tillotson 
asserted any claim of discrimination. The first knowledge 
any of the defendants had of such a claim was October 1, 
1973. Although Mrs. Hearns and Miss Tillotson inter­
vened as plaintiffs in November 1973, they did not testify 
either in person or by deposition, and the evidence offered 
in support of their claims is sketchy, at best.

Plaintiff Hull testified that he interviewed both women; 
that they were well qualified for the jobs; that immediately 
after he interviewed them, he was called to Superintendent 
Jenkins ’ office and was told that a white applicant for one 
of the positions had to have an immediate answer, and 
asked Hull’s advice. Hull did not object to her appoint­
ment and did not inform Jenkins or Starkey, who was also 
present, that he had just interviewed three well qualified 
black applicants; there is no evidence that Jenkins or 
Starkey ever heard of them.

Although the two social workers who were hired were 
white, most of the staff in the combined programs was 
black. It seems that there would be some advantage in 
having a black social worker, but the evidence in the case 
does not justify a finding that they were not appointed 
because of racial discrimination.

Jerome Thompson

In February 1969 the Board and staff were looking for 
a Director of Purchasing. Thompson, who had worked



47a

for the system as an accountant for two months before 
going into military service years before, and who had done 
accounting work in the service, learned of the opening, and 
applied for the position of Assistant in Purchasing.28 He 
did not have a master’s degree, which is a prerequisite to 
certification as director; indeed he did not have even a 
bachelor’s degree, which is required for an Assistant in 
Purchasing, and he has not yet obtained his bachelor’s. 
He was screened on March 3, 1969, along with several 
others, and John Gee, an experienced principal with a mas­
ter’s degree, who had also applied, was chosen on March 
7, to assume the position on July 1. Meanwhile, on March 
6, Thompson had applied for and obtained a job with the 
AAA, and started work on March 7. There was no racial 
prejudice involved.29

Joseph H. Morton

The Board opened its first Vocational Technical Center 
at high school level in September 1969, and during the 
1968-69 school year sought a director for the center, a posi­
tion equivalent to that of a high school principal. The 
policy of the Board was to require a master’s degree for 
appointment as principal; a master’s is a requirement for 
certification as a principal by the State Board of Educa­
tion.30 Two qualified persons had applied for the position

28 The titles of Dwector of Purchasing and Assistant in Purchas­
ing describe similar positions, which are labeled differently depend­
ing upon the degree which the person who holds the position has. 
A  person with a master’s would be a Director of Purchasing; one 
with only a bachelor’s would be an Assistant in Purchasing.

29 Plaintiffs claim that Gee was shifted to the position of Director 
of Purchasing because he was a poor principal. It is more likely 
that Gee was not happy in his principalship and therefore applied 
for the job, for which he was qualified and Thompson was not.

30 This policy was regularly followed by the County Board at 
the secondary level - the only two exceptions have been one black 
man as principal who was within six months of obtaining his



48a

but had withdrawn their applications, and Jenkins and 
Starkey (then Deputy Superintendent) hoped that the 
Board would modify the requirement. A staff member got 
in touch with Morton, who was then an instructor in indus­
trial arts in Prince George’s County, having previously 
taught in Charles County and having had work experience. 
Morton had a bachelor’s degree in industrial arts and had 
taken some graduate courses.

Morton never filed a formal application for the position 
of director of the new center. He did speak to Starkey, and 
met with Jenkins and Starkey on March 26, 1969. They 
told him that the Board would have to decide whether or 
not it would waive the master’s requirement. Jenkins and 
Starkey took the matter up with the Board, but since three 
of the five members were retiring in May, the Board de­
cided that the choice of a director should be made after the 
new members had taken office.

Morton had an offer of a position in another system as 
to which he had to make a decision promptly. Accordingly, 
he talked to Starkey on the phone four or five times, and 
withdrew his application in early May, before the new 
board members met. He took the other job and does not 
claim that he has lost any money as a result of not obtain­
ing the directorship.

The Board stuck to its requirement of a master’s de­
gree, and appointed a white man with a master’s and who 
was certified in administration, but had no experience in 
vocational education.

Morton testified that he felt he had been “ given a run 
around.”  The court does not find that to be a fact, and

master’s and one black man as acting principal for the remainder 
of a school year. There have been some exceptions at the elementary 
level, but one black and one white principal without master’s 
degrees have been demoted, and all principals now have master’s 
degrees.



finds that he was not denied employment as director for 
any racial reason.

Veronica Adams

Miss Adams completed the commercial course at a high 
school in Prince George’s County and graduated with hon­
ors in June 1969. She lived in that county with an aunt, 
who persuaded her to apply for a position with the Charles 
County Board in August 1969. She was interviewed by 
Douglas Kincaid, who had just assumed the position of 
Director of Personnel. She filled out an application in 
which she wrote an incorrect telephone number. Kincaid 
obtained her school records, and attempted to reach her 
on the telephone three or four times to come in for a typing 
test. It was the policy at that time to make such appoint­
ments by telephone and to write to the applicant only if 
she had not given a phone number where she could be 
reached.

Miss Adams made no effort to follow up her applica­
tion (except possibly for one phone call, of which neither 
she nor defendants have any record). She made no effort 
to get any other job for at least a month; she cannot re­
member where she tried to get a job, but was employed by 
a Washington concern in December 1969. She worked at 
that job for two and a half years. She did not make or file 
any complaint or grievance to or with the State Board or 
the County Board or any member thereof.

Charles County then had about 17 black secretaries out 
of a total of about 76. There is no evidence that any other 
black applicant for a position as secretary was ever turned 
down. Defendants would like to hire more black secre­
taries, but the competition from Prince George’s County 
and the many offices in Washington make this very difficult.

Miss Adams was not denied employment by the Board 
for any racial reason.



50a

Conclusion

Counsel should prepare a judgment order embodying (1) 
a declaratory judgment with respect to the racial compo­
sition of faculties, (2) a judgment in favor of Elnora Pink­
ney, and (3 a judgment denying all other claims, in 
accordance with the opinion. The judgment should also 
contain an award of counsel fees in accordance with a 
supplemental opinion which will be promptly filed.

/ s /  Eoszel C. Thomsen
United States District Judge



51a

APPENDIX D
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 

The Fourteenth. Amendment to the United States Constitution

Section 1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, lib­
erty, or property, without due process of law; nor deny to 
any person within its jurisdiction the equal protection of 
the laws.

United States Code

42 U.S.C. § 1981. Equal rights under the law
All persons within the jurisdiction of the United States 

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

42 U.S.C. § 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, 

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



52a

Maryland Constitution

Article VIII § 1. General Assembly to establish system 
of free public schools.

The General Assembly, at its First Session after the 
adoption of this Constitution, shall by Law establish 
throughout the State a thorough and efficient System of 
Free Public Schools; and shall provide by taxation, or 
otherwise, for their maintenance.

Maryland Code, Article 77

§ 6. Duties
The State Board of Education shall, to the best of their 

ability, cause the provisions of this article to be carried 
into effect. They shall determine the educational policies 
of the State; they shall enact bylaws, rules and regulations 
for the administration of the public school system, which 
when enacted and published shall have the force of law. 
For the purpose of enforcing the provisions of this article, 
and the enacted and published bylaws, rules and regula­
tions of the Board, the State Board of Education shall, 
'f  necessary, institute legal proceedings. The State Board 
of Education shall, without charge and with the advice 
of the Attorney General of Maryland, explain the true 
intent and meaning of the law, and shall decide all con­
troversies and disputes that arise under it, and their deci­
sion shall be final; and the secretary of the State Board 
of Education shall have authority to administer oaths, in 
any part of the State, to witnesses in any matter pending 
before said Board.

§ 113. Discrimination on account of race, religion, 
color, national origin, or sex unlawful.

It shall be unlawful for the State Superintendent of 
Schools or any of his assistants, and for any board of 
education and any superintendent of schools or any of his



53a

assistants to make any distinction or discrimination in 
favor of or against any teacher who may be employed in 
any of the public schools of this State, on account of race, 
religion, color, national origin, or sex except where the 
employment of a certain sex may be reasonably necessary 
by reason of the nature of the employment, it being the 
intent and purpose of this section that the provisions 
thereof shall apply with reference to the appointment, as­
signment, compensation, promotion, transfer, dismissal, 
and all other matters pertaining to the employment of 
teachers in the public schools in the State of Maryland.







/