Henry v. Coahoma County Board of Education Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

    I n  t h e

(Emirt at Hit Unit?!* i ’taliTi
Octobee T eem, 1965 

No. --------

Noelle M. H enry,
Petitioner,

—v.—

Coahoma Coxjnty Board of E ducation, et al.

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

FIFTH CIRCUIT

J ack Greenberg 
J ames M. Nabbit, III 
Derrick A. Bell, J r.

10 Columbus Circle 
New York, New York 10019

R. J ess Brown

125% North Farish Street 
Jackson, Mississippi
Attorneys for Petitioner



I N D E X

Citations to Opinions Below .........   1

Jurisdiction .......................................................    2

Questions Presented ......................................................  2

Constitutional and Statutory Provisions Involved ..... 3

Statement of the Case ..................................................  3

Reasons for Granting the Writ ...................................  8
Introduction ........       8
I. The Denial of Reemployment to Petitioner 

Was Arbitrary and in Violation of Her 
Rights Under the Fourteenth Amendment .... 9

II. Petitioner Was Discharged in Violation of 
Her Fourteenth Amendment Rights Because 
of Her Own Civil Rights Involvement and 
Her Husband’s ................................................  15

Conclusion ................     21

Appendices :
Appendix A—Statutes ........................   23
Appendix B—Opinion Below ................................ 27

•—Judgment .......................     32
•—Order Denying Rehearing .............   34

PAGE



11

Table of Authorities

Cases:
PAGE

Adler v. Board of Education, 342 U.S. 485 .................. 15
Alston v. School Board of the City of Norfolk, 112 

F.2d 992 (4th Cir. 1940), cert, den., 311 U.S. 693 ....10,17 
Avery v. Georgia, 345 U.S. 559 ......... .......... ...... ...... 18

Baggett v. Bullitt, 377 U.S. 360 ............................. ..... 9,10
Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963) .... 20
Bradley v. School Board, 382 U.S. 103........ —........—  8
Bryan v. Austin, 148 F. Supp. 563 (E.D. S.C. 1957), 

vacated, 354 U.S. 933 ..............— .......................8,10,17

Cramp v. Board of Public Instruction, 368 U.S. 278 —.9,10

Dixon v. Alabama State Board of Education, 294 F.2d 
150 (5th Cir. 1961), cert, den., 368 U.S. 930 -------  12

Eubanks v. Louisiana, 356 U.S. 584 ......... ............ ...... 18
Evers v. Dwyer, 358 U.S. 202 .......... ......................... 17
Evers v. Jackson Municipal Separate School District,

328 F.2d 408 (5th Cir. 1964) ............ ..................... . 20

Frost v. Railroad Commission, 271 U.S. 583 ..............  10

Garner v. Louisiana, 370 U.S. 248 ........... .... .......... —  21
Greene v. McElroy, 360 U.S. 474 .................. .............  11
Griswold v. Connecticut, 381 U.S. 479 -------- ---------- 13

Henry v. Collins, 158 So.2d 28 (1963) ........      5
Henry v. Collins, 380 U.S. 356 _____ ____________ 5,14
Henry v. Mississippi, 154 So.2d 289 (1963) .................. 5
Henry v. Mississippi, 379 U.S. 443 ------------------ -----5,14
Henry v. Pearson, 158 So.2d 695 (1963) .....       4,5



I l l

Knight v. State Board of Education, 200 F. Supp. 174
PAGE

(M.D. Tenn. 1961) .................................................... 12

Lombard v. Louisiana, 373 U.S. 267 ........................... 20
Ludley v. Board of Supervisors of L.S.U., 150 F. Supp.

900 (E.D. La. 1957), aff’d 252 F.2d 372 (5th Cir. 
1958), cert, den., 358 U.S. 819 ................................ 8

Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962) ..........  21
Meredith v. Fair, 305 F.2d 343 (5th Cir. 1962), cert.

den., 371 U.S. 828 .....................................................  20
Meyer v. Nebraska, 262 U.S. 390 ............... .................... 13

NAACP v. Button, 371 U.S. 415.................. ................. 21
Napue v. Illinois, 360 U.S. 264 .......... ........................... 15
Niemotko v. Maryland, 340 U.S. 268 ............................  15
Norris v. Alabama, 294 U.S. 587 ................................15,18

Peterson v. Greenville, 373 U.S. 244 ........... ................. 20
Pierre v. Louisiana, 306 U.S. 354 ................................ 15

Reece v. Georgia, 350 U.S. 85 ...................................  18
Robinson v. Florida, 378 U.S. 153 ................................ 20
Rogers v. Paul, 382 U.S. 198 .......................................  8

Schware v. Board of Bar Examiners, 353 U.S. 232 .... 10
Shelton v. Tucker, 364 U.S. 479 ..... .............. .2, 8,16,17, 20
Sherbert v. Yerner, 374 U.S. 398 ....... ............... ...... 10
Shuttlesworth v. Birmingham, 382 U.S. 87 .................  21
Skinner v. Oklahoma, 316 U.S. 535 ................ ............. 13
Slochower v. Board of Higher Education of the City

of New York, 350 U.S. 551 .................. ......... 9,10,11,13
Speiser v. Randall, 357 U.S. 513...................................  10

Toreaso v. Watkins, 367 U.S. 488 ...... ........ ................ 10



XV

United States v. Brown, 381 U.S. 437 ..........................  13

Watts v. Indiana, 338 U.S. 49 .......................................  15
Watts v. Seward School Board, 381 U.S. 126 ............. 9
Wieman v. Updegraff, 344 U.S. 183 .......................9,10,13

Statutes Involved:
Ark. Gen. Ass. of 1958, 2nd Ex. Sess., Act 10 .............. 17
Miss. Code of 1942 Annot., §§2056, 3841.3, 6220.5, 6328- 

OS, 9028-31 to 9028-48 .... ........... ...............................  17
Miss. Code of 1942 Annot., §4065.3 .............................. 17
Miss. Code of 1942 Annot., §§6282-41 to 6282-45 ....3,16,17
Miss. Const., Article 8, §207 ......................................... 17
28 U.S.C. §1254(1) ....................................... ................ 2
28 U.S.C. §1343(3) ....................... ............... ................  6
42 U.S.C. §1983 ............................................................ 6

Other Authorities:

PAGE

Brown, Loyalty and Security, Yale Univ. Press. (1958) 15
Government Security and Loyalty, 31:501, GSL News­

letter, Bureau of National Affairs (BNA), October
1955 ____________ ________________________ _ 15

N.E.A., “Report of Task Force Appointed to Study 
the Problem of Displaced School Personnel Related 
to School Desegregation,” (December 1965) ......... 8

Ozmon, “The Plight of the Negro Teacher,” The Amer­
ican School Board Journal, September 1965 _____. 8



I n the

Bnpvmxt ( to r t  of tf|£ Itmtrft Butts
October Term, 1965 

No. --------

N oelle M. H enry , 

— v .—

Petitioner,

Coahoma County Board of E ducation, et al.

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

FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Court of Appeals for the Fifth Circuit 
entered in the above-entitled cause on December 3, 1965, 
rehearing having been denied on January 4, 1966.

Citations to Opinions Below

The opinion of the District Court is set forth at R. 198, 
and reported at 246 F. Supp. 517.1 The opinion of the 
Court of Appeals, printed in Appendix B, infra, p. 27, is 
reported at 353 F.2d 648. 1

1 The District Court opinion is in the Record printed below, 9 copies 
of which have been filed under Rule 21(4).



2

Jurisdiction

The judgment of the Court of Appeals was entered 
December 3, 1965. Petition for rehearing was denied 
January 4, 1966. This Court’s jurisdiction is invoked 
under 28 U.S.C. §1254(1).

Questions Presented

I.
Whether petitioner, an experienced and capable Negro 

public school teacher in Mississippi whose husband is a 
prominent civil rights leader, was deprived of rights pro­
tected by the due process and equal protection clauses of 
the Fourteenth Amendment when she was denied reem­
ployment without a hearing, without any statement of the 
grounds for the denial, and on the asserted ground that 
her husband was a defendant in civil and criminal litiga­
tion initiated by state officials (and in which he subse­
quently prevailed in this Court), although there was no 
showing that petitioner was in any way responsible for 
her husband’s alleged acts or that they impaired peti­
tioner’s fitness as a teacher?

II.
Whether petitioner was denied reemployment on the 

basis of her civil rights affiliations and those of her hus­
band in violation of her rights under the due process 
and equal protection clauses of the Fourteenth Amendment, 
where she presented substantial evidence establishing this 
claim (including the use of an affidavit statute invalidated 
in Shelton v. Tucker, 364 U.S. 479), and the defendants’ 
general denials included no showing of any reason for the 
denial of reemployment which has a rational bearing on 
her fitness as a teacher?



3

■ Constitutional and Statutory Provisions Involved

This case involves Section 1 of the Fourteenth Amend­
ment of the Constitution of the United States. The statu­
tory provisions involved are §§6282-41 to 6282-45, Miss. 
Code Annot. 1942. They are printed in Appendix A, infra, 
pp. 23-26.

Statement of the Case

Petitioner, Mrs. Noelle Henry, was one of the best teach­
ers in the Coahoma County school system (R. 109), and 
the only teacher with acknowledged connections with a 
civil rights group (R. 114, 129). The School Board was 
aware of this through affidavits she submitted listing her 
NAACP membership (R. 74-75),2 and because it was com­
mon knowledge that her husband, Hr. Aaron Henry, is 
State President of the National Association for the Ad­
vancement of Colored People (NAACP) (R. 72, 133).

Petitioner taught for eleven years in Coahoma County 
schools (R. 53).3 Teaching classes with from 50 to 71 
pupils, she was highly regarded by her principal and her 
supervisor (R. 91-92, 98) who, in April 1962, recommended 
that she be rehired for the 1962-63 school year (R. 60, 98) 
in her $3,450 position as third grade teacher in the all- 
Negro McCloud School (R. 54-55). But, although other 
teachers recommended by principals and supervisors have 
invariably been rehired (R. 71, 103), the Superintendent 
announced she would not be offered a new contract (R. 99-

2 The Board’s affidavit requirement complies with a state statute 
§§6282-41 to 6282-45 Miss. Code Annot. (1942), enacted in 1956, re­
quiring as a condition precedent to employment the annual filing of an 
affidavit listing without limitation every organization to which the teaching 
applicant belonged or regularly contributed within the preceding five years.

s Prior to this she taught for 5 years in Jackson Mississippi (R. 53).



4

100). The same year petitioner was discharged, three un- 
reeommended teachers from her school were rehired and 
assigned to different schools (R. 88).

Seeking an explanation, petitioner made three separate 
inquiries to the Board and Superintendent (R. 61-62, 65-66, 
67-69). Efforts to secure a hearing before the Board failed 
(R. 66, 69). Petitioner testified that the Superintendent 
denied knowing why she was not rehired, and told her:

Your contract just wasn’t renewed for 1962-63, and he 
said I don’t know why the board didn’t renew your 
contract; in going over the contracts when they got 
to your name they said we don’t choose to renew this 
one. They didn’t tell me why and I don’t know why 
(R. 62).

But, the Superintendent testified the Board followed his 
recommendation (R. 141), denying that it was based on 
petitioner’s NAACP membership and activities (R. 140, 
162), although on three previous occasions school officials 
expressed concern about approving her contract because 
of her civil rights connections (R. 111-12, 112-13, 118). 
Rather, he asserted (for the first time during the trial)4 * 
that he acted on a newspaper report that petitioner’s hus­
band was convicted of a misdemeanor involving “morals” 
(R. 144), and later advice that petitioner’s husband was 
sued for libel by the Prosecutor and Chief of Police who, 
Henry charged, “framed” him, retaliating for his civil 
rights activities (R. 147).6 Finally, the Superintendent said 
he was told that petitioner and her husband “would be”

4 Neither the Answer to the Complaint nor the answers to interroga­
tories mentioned any of the grounds subsequently given for petitioner’s 
discharge (R. 12-16, 30-33).

6 The opinion below mistakenly states that Mrs. Henry was not re- 
employed because of an “adverse judgment” in the libel case (353 F.2d 
at 649). But, Mrs. Henry was notified that she would not be re-



5

sued by the plaintiffs in the libel suit to undo an alleged 
fraudulent conveyance of property (R. 142). He testified 
that the “activities” of petitioner and her husband were 
“highly controversial” and that all this litigation would 
be “a bad influence on children and other teachers” (R. 
141-42).

The Superintendent conceded he made no investigation 
concerning the conviction. He did not know there was no 
jury trial in the Justice of the Peace Court, or that there 
was one in the County Court (R. 144-47). He acted before 
the Mississippi Supreme Court reversed the guilty verdict 
on June 3, 1963, and although that Court later withdrew 
this decision and affirmed on July 12, 1963, the Super­
intendent took no action during the interim to reinstate 
petitioner (R. 149).* * 6 Asked whether he made any in­
vestigation into the basis for the libel charge, the Super­
intendent asserted: “It is not my position to dig into 
lawsuits. My position doesn’t entitle me to that time” 
(R. 164).7

employed on June 4, 1962 (R. 60). The libel trials were held in July
1962 (Henry v. Pearson, 158 So.2d 695, 698).

6 The first opinion of the Supreme Court of Mississippi reversing the 
guilty verdict was originally reported as Henry v. State of Mississippi, 
154 So.2d 289 (1963). Following a Suggestion of Error submitted by the 
Attorney General of Mississippi, the first opinion and judgment were 
withdrawn, and a second opinion affirming the judgment of the trial 
court is now reported at 154 So.2d 289. On certiorari to this Court the 
conviction was vacated because based on illegally obtained evidence and 
remanded for a determination as to whether counsel had intentionally 
waived the right to object to such evidence. Henry v. Mississippi, 379 
U.S. 443 (1965). To date, no action to obtain such a determination has 
been taken by the state courts.

7 The libel suits filed against petitioner’s husband by the Clarksdale 
Chief of Police, Benford Collins, and the Coahoma County Attorney 
Thomas H. Pearson resulted in judgments against petitioner for $40,000. 
These were affirmed by the Mississippi Supreme Court. Henry V. Collins, 
158 So.2d 28 (1963) ; Henry v. Pearson, 158 So.2d 695 (1963), but were 
reversed by this Court. Henry V. Collins, 380 CJ.S. 356 (1965).



6

Petitioner filed this suit against the Board and Super­
intendent in October 1962 in the United States District 
Court for the Northern District of Mississippi. Federal 
jurisdiction and the claim for injunctive relief were 
founded on 28 U.S.C. §1343(3) and 42 U.S.C. §1983. Hav­
ing failed to obtain any information on the basis for her 
dismissal from the Board or its Superintendent, she al­
leged the discharge was caused by her NAACP member­
ship and her husband’s civil rights activity (R. 2, 7). 
The trial court sustained all objections (R. 164-65, 167-72) 
to questions aimed at ascertaining whether growing civil 
rights activity in the State influenced the decision to 
replace petitioner (R. 151-52). Nevertheless, in dismissing 
the complaint it ruled that petitioner failed to sustain her 
burden of proving that she was discharged for NAACP 
membership, associations and activities (R. 204).

Following the Superintendent’s assertion at trial that 
he refused to rehire petitioner because her husband was in 
litigation, petitioner’s counsel, pursuant to Rule 15(h) 
Federal Rules of Civil Procedure, moved to amend the 
complaint to conform to this evidence, asserting in the 
proposed amendment that these reasons were as uncon­
stitutional as those alleged originally (R. 193-97). Denying 
petitioner’s motion to amend, the trial court nevertheless 
wrote that the Superintendent was not arbitrary but “had 
good cause and exercised a sound discretion” (R. 202-04), 
in dismissing petitioner if, in his opinion, her husband be­
came notorious in the community. The court agreed that 
petitioner was “tarred with the same brush” by reason of 
her marriage and might eventually become personally and 
unfavorably involved (R. 203). Because she was not re- 
hired, the trial court deemed petitioner a “non-teacher” 
lacking standing to question the validity of statutes re­
quiring the filing of membership affidavits (R. 207).



7

The Fifth Circuit affirmed per curiam and adopted the 
trial court’s opinion. Judge Brown, concurring, emphasized 
that the broad discretion of school officials in hiring teach­
ers cannot be used to interfere with, or discourage the 
exercise of, federally secured civil rights. A teacher’s hus­
band’s criminal record and involvement in litigation, ac­
cording to Judge Brown, “in many cases may justify a 
refusal to recommend her for this sensitive employment. . .  ” 
(App. p. 31). However, if such record and involvement 
spring solely from attempts to exercise civil rights, such 
circumstances would not justify a refusal to recommend. 
In Judge Brown’s view, petitioner failed to prove that the 
Superintendent’s refusal to recommend her was based on 
her civil rights activities or her husband’s, or that his 
involvement in criminal and civil litigation arose from 
constitutionally protected assertions of civil rights.

On rehearing, petitioner pointed out that the trial court 
would not permit her to show that the Superintendent 
knew that community sentiment opposed school desegrega­
tion or that civil rights leaders like petitioner’s husband 
frequently are charged with violating criminal laws, but 
that such prosecutions, while designed to deter civil rights 
activity seldom, if ever, expressly charge violation of 
segregation laws; rather, they run the gamut of other 
criminal statutes.

The Fifth Circuit denied petitioner’s petition for re­
hearing on January 4, 1966.



8

Seasons for Granting the Writ 

Introduction

This case presents questions of substantial public im­
portance, involving a claim of arbitrary and discriminatory 
denial of public employment contrary to principles declared 
by this Court. It involves a Negro school teacher denied 
reemployment in the context of the struggle for public 
school desegregation in Mississippi. The problems of 
Negro teachers displaced by discrimination during the de­
segregation process8 or discharged in reprisal for their 
opposition to segregation9 are matters of national concern. 
This Court has seen fit to closely scrutinize cases touching 
on the rights of Negro teachers in relation to school de­
segregation. Shelton v. Tucker, 364 U.8. 479; Bryan v. 
Austin, 354 U.S. 933; Bradley v. School Board, 382 U.S. 
103; Rogers v. Paul, 382 U.S. 198. As Mr. Justice Harlan 
wrote dissenting in Shelton (364 U.S. at 496-97), “pro­
tection [of constitutional rights] in the context of the 
racial situation in various parts of the country demands 
the unremitting vigilance of the courts.”

The case involves issues similar to those decided by this 
Court in a variety of other cases involving First Amend­
ment claims of teachers and, we submit, a conflict with the

8 The National Education Association has sponsored a detailed study 
of the problem. See “Report of Task Force Appointed to Study the 
Problem of Displaced School Personnel Related to School Desegregation 
and the Employment Studies of Recently Prepared Negro College Grad­
uates Certified to Teach in 17 States”, December, 1965. See also, Ozmon, 
“The Plight of the Negro Teacher”, The American School Board Journal, 
pp. 13-14, September, 1965.

9 See Bryan v. Austin, 354 U.S. 933, vacating 148 F. Supp. 563 (E.D. 
S.C. 1957); Shelton v. Tucker, 364 U.S. 479; Ludley v. Board of Super­
visors of L.S.V., 150 F. Supp. 900 (E.D. La. 1957), aff’d 252 F.2d 372 
(5th Cir. 1958), cert, den., 358 U.S. 819.



9

principles decided in those cases. Wieman v. Updegraff, 
344 U.S. 183; Cramp v. Board of Public Instruction, 368 
U.S. 278; Baggett v. Bullitt, 377 U.S. 360; Slochower v. 
Board of Higher Education of the City of New York, 350 
U.S. 551.

Recently the Court granted certiorari in a case involving 
the right of a school board to dismiss a teacher in retalia­
tion for the exercise of asserted First Amendment rights, 
but vacated the judgment when the cause was affected by 
supervening legislation. See Watts v. Seward School Board, 
381 U.S. 126, where school teachers were dismissed for 
“immorality” consisting of their having urged the ouster 
of the Superintendent and the Board. This Court vacated 
and remanded for reconsideration in light of newT legisla­
tion barring school boards from interpreting “immorality” 
to restrict the right to criticize school officials.

I.
The Denial of Reemployment to Petitioner Was Arbi­

trary and in Violation of Her Rights under the Four­
teenth Amendment.

Petitioner has contended that the school authorities 
merely used her husband’s difficulties to screen the real 
reason for her dismissal, which was to combat NA A CP 
sponsored school desegregation efforts. But assuming 
arguendo that the Superintendent’s stated reasons were 
the basis for petitioner’s dismissal, we submit that the 
stated grounds were arbitrary and unreasonable in viola­
tion of her Fourteenth Amendment rights.

This Court clearly has held that a state may not exclude 
a person from public employment for reasons which are 
“patently arbitrary or discriminatory.” Wieman v. Upde-



10

\ 9raff> 344 U.S. 183, 192; Cramp v. Board of Public Instruc- 
) tion, 368 U.S. 278, 288; Torcaso v. Watkins, 367 U.S. 488, 

495-96; Baggett v. Bullitt, 377 U.S. 360; Schware v. Board 
of Bar Examiners, 353 U.S. 232; Slochower v. Board of 
Higher Education of the City of New York, 350 U.S. 551.

We submit that the actions of the Coahoma County school 
officials in denying Mrs. Henry reemployment were indeed 
patently arbitrary and unfair. Before detailing this, it 
ought to be noted that while in a formal sense the action 
of the authorities was to refuse to rehire petitioner, this 
action, placed in its context, is tantamount to dismissing 
her from her job. She had held her job eleven years, and 
her principal and supervisor recommended that her employ­
ment be continued. Such recommendations were invariably 
followed and thus reemployment was more or less auto­
matic or routine until petitioner’s case. See Judge Parker’s 
dissent in Bryan v. Austin, 148 F. Supp. 563, 572-73 (E.D. 

.S.C. 1957), vacated, 354 U.S. 933. But the school officials’ 
/ action violated the Fourteenth Amendment whether it is 
\ viewed as a job dismissal or as a rejection of an appli- 
\ cation for public employment. In neither context can the 
I State impose unconstitutional conditions upon the oppor­

tunity to hold public employment. Cf. Alston v. School 
Board of the City of Norfolk, 112 F.2d 992, 997 (4th Cir. 

1 1940), cert. den. 311 U.S. 693; Frost Trucking Co. v. Ra.il- 
I road Comm., 271 U.S. 583, 594; Speiser v. Randall, 357 U.S. 

513; Sherbert v. Verner, 374 U.S. 398.
Mrs. Henry was denied reemployment without any notice 

of the charges against her. Her repeated attempts to learn 
the ground for the action were unavailing. Consequently, 
she had no opportunity to explain or refute the charges 
against her, and no opportunity to attempt to show that 
the accusations were untrue or had no bearing on her 
fitness. Her requests for a hearing were denied. The



11

Superintendent informed himself of the facts solely by 
newspaper accounts (R. 144), and conversations with the 
lawyer representing Mr, Henry’s adversaries in a libel 
suit (R. 144, 147).

The denial of notice of the charges and a hearing when 
petitioner was denied reemployment violate fundamental 
conceptions of fairness. This is not a case where a teacher 
was denied reemployment because of dissatisfaction with 
her job performance. The entitlement to a hearing in such 
a case might involve different issues. But the action to 
deny Mrs. Henry’s job was taken because the Superin­
tendent thought petitioner and her husband were engaged 
in “highly controversial” activities (R. 141). Such a charge 
is so plainly susceptible of use to hide forbidden purposes 
that the minimal protection of notice and a hearing is 
compellingly necessary.

As this Court pointed out in Greene v. McElroy, 360 
U.S. 474, 496-99, the right to notice and a hearing is funda­
mental in certain administrative and regulatory actions as 
well as in criminal cases. In Greene the Court said (360 
U.S. at 496):

Certain principles have remained relatively immu­
table in our jurisprudence. One of these is that where 
government action seriously injures an individual, 
and the reasonableness of the action depends
on fact findings, the evidence used to prove the Gfov- 
ernment’s case must be disclosed to the individual so 
that he has an opportunity to show that it is untrue.

In another context, in Slochower v. Board of Higher Edu­
cation of the City of New York, 350 U.S. 551, the Court 
condemned the summary dismissal of a teacher without 
hearing under a statute providing for the discharge with-



12

out notice or hearing of any city employee utilizing the 
privilege against self-incrimination. See Dixon v. Alabama 
State Board of Education, 294 F.2d 150 (5th Cir. 1961), 
cert. den. 368 U.S. 930, and Knight v. State Board of Edu­
cation, 200 F. Supp. 174 (M.D. Tenn. 1961), both holding 
that students in state schools had a due process right to 
hearings before expulsion.

When the Superintendent finally (midway through the 
trial of this case) stated why he did not rehire petitioner, 
he gave reasons which, we submit, demonstrate that the 
action was arbitrary and unfair. The reasons were that peti­
tioner’s husband had been convicted of a morals charge 
and had been sued for libel by the Chief of Police and 
County Attorney, and that the Superintendent was told 
that a suit “would be instigated for setting aside prop­
erty to Noelle Henry by her husband to avoid payment on 
the libel charge” (E. 142). Thus petitioner was denied re­
employment because of a criminal charge and a civil suit 
against her husband and because a lawyer threatened to 
file a further civil suit involving her property. There was 
no claim or showing that Mrs. Henry was in any way 
culpable or did any blameworthy act in connection with 
any of those cases. There was no claim that she knew of 
or could have prevented any of the alleged acts by her 
husband. It is quite plain that the denial of reemployment 
punished petitioner for the alleged acts of someone else 
which she had no power to control or prevent.

We submit that it is fundamentally unfair and a denial 
of due process to punish petitioner for the alleged acts of 
another. There is no claim that her husband’s troubles 
actually impaired petitioner’s performance of her job as 
a third grade teacher. Her supervisors recommended that 
she be reemployed and had nothing but praise for her 
work. We submit that it is not permissible to make an



13

automatic inference or presumption that petitioner was 
unfit to teach because her husband was a party to civil 
litigation and was convicted of a crime. This presump­
tion is no more permissible than was New York’s presump­
tion that a teacher who relied on the privilege against 
self-incrimination was unfit to teach. Slochower v. Board 
of Higher Education of the City of New York, 350 U.S. 551.

The presumption that petitioner was unfit because her 
husband was convicted, and had been sued for damages, 
and because it was said that she was going to be sued in 
the future, is not founded on reason. This punishment of 
one for the deeds of another partakes of some of the 
characteristics of Bills of Attainder which carried with 
them a “ ‘corruption of the blood,’ which meant that the 
attainted party’s heirs could not inherit his property” and 
sometimes “exclusion of the designated party’s sons from 
Parliament.” See United States v. Brown, 381 U.S. 437, 
441-42.

The presumption here imputes guilt to the wife from 
association with her husband. In Wieman v. Updegraff, 
344 U.S. 183, the Court condemned a law which might 
punish innocent as well as guilty activity. The Coahoma 
County school officials have simply punished petitioner for 
innocent activity.

Petitioner would have no assurance that she could re­
habilitate herself in the eyes of the school officials even 
by so drastic a step as separating from her husband and 
seeking a divorce. But we need not stop long to ponder 
that because making public employment conditional upon 
obtaining a divorce is a flagrant invasion of the right of 
free association in marriage. See Griswold v. Connecticut, 
381 U.S. 479; cf. Meyer v. Nebraska, 262 U.S. 390, 399; 
Skinner v. Oklahoma, 316 U.S. 535, 541.



14

We urge that the principle that public employees can 
be deprived of their jobs because of the misdemeanors of 
their spouses is totally alien to conceptions of fairness 
embodied in our law. The principle that public employees 
can be fired because private litigants sue their relatives for 
damages is even worse. The principle that public employees 
can be fired because someone merely threatens to sue them 
is preposterous. However sensitive a teacher’s job—and 
sensitive it is—there is no justification for conditioning 
their employment on events which they can never control 
and which have no necessary relation to their fitness.

The injustice of punishing Mrs. Henry because of the 
alleged misdeeds of her husband is compounded by the 
ironical result that while Mrs. Henry has now been pun­
ished for four years, Dr. Henry was saved from criminal 
punishment or from paying damages by the due process 
clause of the Fourteenth Amendment. His criminal con­
viction was vacated by this Court in Henry v. Mississippi, 
379 U.S. 443, and no further action has been taken since 
the case was remanded to the trial court. The libel judg­
ments against him were also reversed by this Court in 
Henry v. Collins, 380 U.S. 356, and that result mooted the 
dispute over an alleged fraudulent conveyance.

The view that Mrs. Henry was “tarred with the same 
brush” by reason of her marriage (R. 203) was thought 
by the courts below to be sufficient to dispose of the mat­
ter. The opinion below did not see fit to mention that all 
of the judgments against Dr. Henry had been set aside 
by this Court. Thus petitioner was tarred by the brush 
of the accusations but denied the benefit of her husband’s 
vindication.

The trial court recognized that this case involves the 
doctrine of guilt by association and its opinion quotes and



15

relies upon language in Adler v, Board of Education, 342 
U.S. 485, which is asserted to sanction that doctrine (R. 
203-204). Whatever may be the permissible reach of that 
doctrine where knowing and sympathetic association with 
subversive groups is involved, surely the permissible scope 
of its application must be narrowly circumscribed where 
the association is one of marriage or kinship and has no 
connection with the alleged antisocial conduct.10

II.
Petitioner Was Discharged in Violation of Her Four­

teenth Amendment Rights Because of Her Own Civil 
Rights Involvement and Her Husband’s.

The lower courts found petitioner failed to prove “by 
a preponderance of the evidence” that the School Board 
refused to rehire her because of her civil rights affiliations 
and those of her husband. But these findings are con­
trary to the record. The issue involves the proper in­
ferences to be drawn from known facts which are deter­
minative of constitutional rights. This Court has tradi­
tionally exercised its power to scrutinize the record and 
make its own independent examination of the facts deter­
minative of constitutional claims. Napue v. Illinois, 360 
U.S. 264, 271-72, and cases collected in Note 4; Watts v. 
Indiana, 338 U.S. 49, 50-51; Norris v. Alabama, 294 U.S. 
587, 589-90; Niemotho v. Maryland, 340 U.S. 268, 271; 
Pierre v. Louisiana, 306 U.S. 354, 358.

10 See Brown, Loyalty and Security, Yale Univ. Press (1958), which 
summarizes public resentment to “guilt by relationship” and “guilt by 
marriage and kinship” cases when they came to public attention in 1955. 
Such cases are reported in Government Security and Loyalty, 31:501-502, 
GSL Newsletter, Bureau of National Affairs (BNA), Oct. 1955.



16

Petitioner was an effective teacher (R. 91-92, 98) who, 
despite long experience and continuing favorable super­
visors’ recommendations (R. 92, 109), had nearly been 
refused a teaching contract during 1955, 1956 and 1961, 
because of her NAACP affiliation (R. 73, 111-12; 112-13; 
118, 133). Petitioner was the only one of 200 teachers 
(R. 129) in the system (all assigned to schools on a segre­
gated baisis, R. 130) who professed NAACP membership 
(R. 113-14), and the only one whose spouse was active in 
civil rights efforts (R. 133). The Board replaced peti­
tioner with a teacher without teaching experience (R. 151- 
52).

The Board obtained its first official knowledge of peti­
tioner’s NAACP membership (R. 113) through a teacher 
affidavit statute enacted by the Mississippi Legislature in 
1956, §§6282-41 to 6282-45, Miss. Code Annot. 1942 vir­
tually identical to Arkansas’s provision invalidated in 
Shelton v. Tucker, 364 IJ.S. 479 (1960). The law requires 
all teaching personnel to submit annually as a condition 
precedent to employment, an affidavit listing every organi­
zation to which the applicant belonged or regularly con­
tributed within the preceding five years. Such a provision, 
as this Court held in Shelton v. Tucker, supra, must be 
considered against the system of employment in which 
teachers are hired on a year to year basis, without job 
security beyond the end of each school year (R. 201, 205). 
The dangers of the Mississippi law are greater than those 
of Arkansas because Mississippi has continued to enforce 
its statute after Shelton v. Tucker, supra.11 11

11 Even the dissenters in Shelton indicated their opposition was limited 
to the statute’s validity on its face and that proof of abuses in the Act’s 
administration would make a different case, 364 U.S. 499. In Mississippi, 
state statutes and the Board’s continuing policy of segregation raise a 
strong presumption of such abuses.



17

Because of her NAACP listing, the former Superinten­
dent wanted to refuse petitioner’s application for a-'contraet 
or to subject it to termination on two weeks notice (R. 112- 
13) but was persuaded to change his mind. The present 
Superintendent, upon reviewing the membership affidavits 
in 1960 was shocked by petitioner’s NAACP entry and 
had to be persuaded to offer her a contract for the 1960-61 
school year (R. 118).12

When in 1962 the Superintendent overruled recommenda­
tions by her principal and supervisor that petitioner be 
rehired, it upset a long-established practice of honoring 
such recommendations (R. 103), but accommodated a 
phalanx of Mississippi statutes requiring public school 
segregation13 and that public officials resist by all legal 
means, the implementation of this Court’s desegregation 
decisions.14 The Coahoma County schools were operated 
on a completely segregated basis when petitioner was dis-

12 Petitioner’s effort to challenge the Mississippi affidavit statute were 
frustrated by the lower court’s ruling that at the time suit was filed she 
had not been reliired and was a “non-teacher” (E. 207). This ruling 
failed to consider that all persons to whom the membership affidavit re­
quirement could possibly apply are “non-teachers” since they are mere 
applicants for teaching contracts at the point where the affidavit must 
be completed. The Mississippi statute provides, as did the Arkansas pro­
vision, th a t: “No . . . teacher shall be employed . . . ,  until, as a condi­
tion precedent to such employment, such . . . ,  teacher shall have filed 
. . .  an affidavit. . . . ” Compare §6282-41 Miss. Code Annot. 1942 (p. 23, 
infra), with Act 10 of the 2nd Ex. Sess. of Arkansas General Ass. of 1958, 
Shelton v. Tucker, 364 U.S. 479, 480, n. 1 (1960). Moreover, petitioner 
is clearly in the class affected by this legislation and may challenge the 
imposition of this unconstitutional burden upon her without refusing to 
sign an affidavit in order to make a test ease. Evers v. Dwyer, 358 U.S. 
202 (1958). See also, Alston v. School Board of City of Norfolk, 112 
F.2d 992, 996-97 (4th Cir. 1940) ; Bryan v. Austin, 148 F. Supp. 563, 
572 (E.D. S.C. 1957) (dissent by Judge Parker), vacated, 354 U.S. 933.

13 Section 4065.3 Miss. Code of 1942 Annot., see also Article 8, §207, 
Miss. Const,; §§2056, 3841.3, 6220.5, 6328-03 and 9028-31-48 Miss. Code 
of 1942 Annot.

14 §4065.3 Miss. Code of 1942 Annot, requires the entire executive 
branch of the Government, including “all boards of county superinten­
dents of education . . .  to prohibit, by any lawful, peaceful and eonsti-



18

missed (R. 130), and the system remained totally segre­
gated until January 1966, when two Negro pupils were 
admitted to a white school under a plan submitted to the 
U. S. Office of Education under the Civil Rights Act of 
1964.

Petitioner submits that these facts establish a prima 
/  facie case of discrimination because of her NAACP ac­

tivities and associations, and the burden shifted to the 
| school authorities to produce evidence sufficient to combat 
\ the clear inference. Nor could such inferences be overcome 
I by the Superintendent’s mere assertions that petitioner’s 
I civil rights connections played no part in her dismissal 

/  (R. 140) where no reasonable alternative ground for dis­
missal having a rational relation to her fitness was put 

i forth. Cf. Eubanks v. Louisiana, 356 U.S. 584 (1958);
Reece v. Georgia, 350 U.S. 85 (1955); Avery v. Georgia, 
345 U.S. 559 (1953); Norris v. Alabama, 294 U.S. 587

The Superintendent claimed that after learning from a 
newspaper article about petitioner’s husband’s difficulties 
in March, 1962 (R. 144), he refused to follow the favorable 
recommendations of her principal and supervisor. Yet, in 
May 1962, he gave no reason to the Supervisor of Negro 
Schools why the Board had not renewed her contract 
(R. 99). Then, in June, 1962, he told petitioner that it 
was not he, but the Board who had refused her applica­
tion, and he did not know why they had so acted (R. 62). 
Finally, in September, 1962, in answer to petitioner’s re-

tutional means, the implementation of or the compliance with the Integra­
tion Decisions of the United States Supreme Court, . . . [citations omitted] 
and to prohibit by any lawful, peaceful and constitutional means, the 
implementation of any orders, rules or regulations of any board, com­
mission or agency of the federal government, based on the supposed au­
thority of said Integration Decisions, to cause a mixing or integration 
of the white and Negro races in public schools. . . . ”

(1935).



19

quest for a hearing or at least some explanation, the 
Superintendent replied, orally and by letter, that no rea­
sons had. to. be given and that the action of the Board was 
final (R. 68-69). The reasons for discharge were not 
mentioned in the defensive pleadings or answers to in­
terrogatories. Nothing, except the Superintendent’s bare 
assertion, contradicts the proposition that the stated rea­
sons for denying reemployment were after-the-fact ration­
alizations for the action.

The Superintendent made no investigation of the status 
of the criminal charge or the libel suit against petitioner’s 
husband (R. 144, 164). He made no investigation of the 
rumored fraudulent conveyance (R. 147). Even the Su­
preme Court of Mississippi’s reversal of petitioner’s hus­
band’s conviction, albeit temporary, had no effect in his 
decision (R. 148-49).

The Superintendent claimed his action was based on 
concern for the welfare of Negro children (R. 141-42) and 
reported that, after receiving complaints from the Negro 
supervisor and the Negro community, a Negro principal 
was dismissed because of his wife’s alleged “immoral” 
conduct (R. 161). The Superintendent gave no details of 
that episode. But there is no record of any complaints by 
anyone against petitioner. She was informed by her prin­
cipal that she would be recommended for the 1962-63 
school year on March 21, 1962 (R. 60). Her principal made 
no mention of petitioner’s husband’s arrest of March 3, 
1962, or his conviction in the Justice of the Peace Court 
on March 14, 1962. Obviously, the principal had no doubts 
about the irrelevance of her husband’s difficulties to peti­
tioner’s worth as a third grade teacher. The high esteem 
in which petitioner’s principal, supervisor and the Negro 
community continue to hold her demonstrates that the 
Superintendent’s fears, upon which the dismissal was pur­
portedly based, were unfounded.



20

Respondent’s conduct must be evaluated in the light of 
its continued use of an affidavit requirement which this 
Court held a serious impairment of the teacher’s right of 
free association, Shelton v. Tucker, 364 U.S. 479, 486, and 
Mississippi statutes and policies requiring the Board to 
maintain racial segregation. Meredith v. Fair, 305 F.2d 
343 (5th Cir. 1962), cert, den., 371 U.S. 828; Bailey v. Pat­
terson, 323 F.2d 201 (5th Cir. 1963); Evers v. Jackson 
Municipal Separate School District, 328 F.2d 408 ( 5th Cir. 
1964).

In Meredith v. Fair, 305 F.2d 343, 360 (5th Cir. 1962), 
cert, den., 371 U.S. 828, the Court set standards of review: 
“to study the case as a whole, weighing all of the evidence 
and rational inferences in order to reach a net result; . . . ” 
and “to consider the immediate facts in the light of the 
institution’s past and present policy on segregation, as 
reflected not only in the evidence but in statutes and regu­
lations, history and common knowledge; . . . ” Notwith­
standing the State’s strenuous assertions that Meredith’s 
application was denied because of (a) an alleged false voter 
registration, (b) psychological problems, and (c) a had 
character risk, the court, rejected the State’s reasons as 
“frivolous” and “trivial”. The Court concluded he was re­
jected because of his race. 305 F.2d at 361. Compare 
Peterson v. City of Greenville, 373 U.S. 244 (1963); Lom­
bard v. Louisiana, 373 U.S. 267 (1963); Robinson v. Florida, 
378 U.S. 153 (1964).

Similar standards should be applied here. The lower 
court’s conclusion that “There are no racial or civil rights 
overtones in this record . . . ” (R. 205) flies in the face of 

/ what the court has frequently judicially noticed about 
' Mississippi’s racial policy under the truism “what every­

body knows the court must know.” Meredith v. Fair, supra 
\  at 344-45. By its failure to take notice of this policy,



21

and refusal to hear evidence about it, the lower court 
condemned this case to “the eerie atmosphere of never- 
never land,” Meredith v. Fair, 298 F.2d 696, 701 (5th 
Cir. 1962). This case should be recognized for what it is— 
a punishment of Mrs. Henry for her civil rights views and 
her husband’s. Nothing else reasonably accounts for the 
fact than an admittedly experienced and capable teacher 
has been deprived of an opportunity to work in her pro­
fession for four years. We urge the Court to pierce the 
veil which disguises this discrimination as was done in 
such cases as Garner v. Louisiana, 370 TJ.S. 248; NAACP 
v. Button, 371 U.S. 415, 445 (Justice Douglas concurring); 
and Shuttlesworth v. Birmingham, 382 U.S. 87, 99 (Justice 
Fortas and the Chief Justice, concurring).

CONCLUSION

W herefore, for the foregoing reasons, it is respectfully 
submitted tha t the petition for certiorari should be granted.

Respectfully submitted,

J ack Greenberg 
J ambs M. Nabrit, III 
Derrick A. Bell, J r.

10 Columbus Circle 
New York, New York 10019

R. J ess Brown
125% North Farish Street 
Jackson, Mississippi
Attorneys for Petitioner



23

APPENDIX A

Miss. Code Annot. 1942 (Cum. Supp. 1960)

§ 8282-41. Superintendents, principals, and teachers to file 
affidavit as to membership in organizations.

No superintendent, principal, or teacher shall be em­
ployed or elected in any elementary or secondary school 
by the trustees of the district operating such school, and 
no instructor, professor or other teacher shall be employed 
or elected in any junior college or institution of higher 
learning, or other educational institution supported wholly 
or in part by public funds, by the trustees or governing 
authority thereof until, as a condition precedent to such 
employment, such superintendent, principal, teacher, in­
structor, professor, or other teacher shall have filed with 
such board of trustees or governing authority an affidavit 
as to the names and addresses of all incorporated and/or 
unincorporated associations and organizations of which 
such superintendent, principal, teacher, instructor, profes­
sor, or other teacher is, or within the past five (5) years, 
has been a member, or to which organization such super­
intendent, principal, teacher, instructor, professor, or other 
teacher is presently paying, or within the past five (5) 
years has paid, regular dues or to which the same is mak­
ing, or within the past five (5) years, has made regular 
contributions.

§ 8282-42. Form of affidavit.
Such affidavit may be in substantially the following form:

State oe ....................
COUNTY on .................

I, .................. (name of affiant), being an applicant for
the position of ...... ..........  at .................  (name of school



24

or institution), being first duly sworn, do hereby depose 
and say that I am now or have been within the past 5 
years a member of the following organizations and no 
others:

Appendix A

(names and addresses of organizations)
and further, that I am now paying, or within the past five 
(5) years have paid, regular dues or made regular contri­
butions to the following organizations and no others:

(names and addresses of organizations)

(Signature of Affiant)

Affiant

Sworn to and subscribed before me, this the ......  (date)
day o f .................  (month), 19—.... (year).

(Signature of Official)

Title of Official



25

§ 6282-43. Contracts of employment void for failure to file 
affidavit.

Any contract entered into by any board of trustees of 
any school district, junior college, institution of higher 
learning, or other educational institution supported wholly 
or in part by public funds, or by any governing authority 
thereof, with any superintendent, principal, teacher, in­
structor, professor, or other instructional personnel, who 
shall not have filed the affidavit required in section 1 
[§ 6282-41] hereof prior to the employment or election of 
such person and prior to the making of such contracts, 
shall be null and void and no funds shall be paid under 
said contract to such superintendent, principal, teacher, 
instructor, professor, or other instructional personnel; any 
funds so paid under said contract to such superintendent, 
principal, teacher, instructor, professor, or other instruc­
tional personnel, may be recovered from the person re­
ceiving the same and/or from the board of trustees or 
other governing authority by suit filed in the circuit court 
of the county in which such contract was made, and any 
judgment entered by such court in such cause of action 
shall be a personal judgment against the defendants therein 
and upon the official bonds made by such defendants, if 
any such bonds be in existence.

§ 6282-44. Penalty for filing false affidavit.
Every person who shall wilfully file a false affidavit 

under the provisions of this act shall be guilty of perjury, 
shall be punished as provided by law, and in addition, shall 
forfeit his license to teach in any of the schools, junior 
colleges, institutions of higher learning, or other educa­
tional institutions supported wholly or in part by public 
funds in this state.

Appendix A



26

§ 8282-45. Constitutionality.
If any paragraph, sentence, clause, phrase, or word of 

this act shall be held to be unconstitutional for any reason, 
such holding of unconstitutionality shall not affect any 
other portion of this act; nothing herein contained, how­
ever, shall be construed so as to affect the validity of any 
contract entered into prior to the effective date of this act.

Appendix A



27

APPENDIX B

Isr the

UNITED STATES COURT OF APPEALS 
F oe the F ifth  Circuit 

No. 21438

Noelle M. H enry,

-v -
Appellcmt,

Coahoma County B oard of E ducation, et al.,
Appellees.

a p p e a l  f r o m  t h e  u n i t e d  s t a t e s  d i s t r i c t  c o u r t

FOR T H E  NO RTH ERN DISTRICT OF M ISSISSIPPI

(December 3, 1965.)

B e f o r e  :

H utcheson and B rown, Circuit Judges, 
and Morgan, District Judge.

Per Curiam:
This is an appeal from a judgment of the United States 

District Court for the Northern District of Mississippi, 
denying plaintiff the relief she sought in her suit to re­
quire by injunction that she be re-employed as a teacher 
in the Public School System of Coahoma County, Missis­
sippi.

Appellant, Mrs. Henry, is a negro school teacher who 
has taught in the same school for eleven years. In Missis-



28

sippi teachers have no tenure but are hired on one year 
contracts which are reviewed for renewal each year. The 
usual or ordinary, indeed the required, procedure is that 
the teacher’s principal or supervisor make his recommen­
dation for renewal to the County School Superintendent, 
and the superintendent in turn makes his recommendation 
to the School Board. It is statutory in Mississippi1 that 
the School Board cannot hire anyone not recommended 
by the County Superintendent. It is also required by 
statute that all teacher applicants list all organizations 
to which they do belong or have belonged or to which 
they have contributed money for the past five years. Mrs. 
Henry was, and is, a member of the National Association 
for the Advancement of Colored People and also the only 
teacher to so state on her application. Although she was 
recommended by her supervisors to Hunter, the County 
Superintendent, Hunter did not recommend her, and her 
contract was not renewed for the 1962-1963 school year.

Mrs. Henry testified that she made three separate at­
tempts to obtain an explanation from Hunter or the School 
Board as to the basis of the refusal to renew her contract, 
but each time Hunter told her the Board had made the 
refusal and had given him no reason therefor and that 
further discussion of the matter would be useless. She 
filed suit, stating as the basis for her complaint that the 
Board had refused to renew her contract because she was 
a member of the National Association for the Advance­
ment of Colored People and because her husband was 
and is President of that Association in Mississippi. Re­
lief prayed for was that the Board be enjoined from re­
fusing to renew her contract for 1962-1963 and that the

Appendix B

1 See Lott v. State, 121 So.2d. 402.



29

statute requiring teacher applicants to list their organ­
izational activities be declared unconstitutional.

At the trial Hunter testified that the Board had not 
renewed the contract because he had not recommended 
Mrs. Henry. When questioned by the court, he stated 
that his refusal to recommend her was based on the fact 
that her husband had been convicted on a morals charge 
and had suffered an adverse judgment in a libel suit, and 
that he had reliable information that suit was about to 
be filed against Mrs. Henry in respect of a fraudulent 
conveyance made to her by her husband. Hunter ex­
pressly testified that his decision was not due to Mrs. 
Henry’s or her husband’s civil rights activities or any 
N.A.A.C.P. affiliations.

At the conclusion of the hearing the Court ordered a 
time for filing memorandum briefs. During this time 
Mrs. Henry moved to amend her complaint under Rule 
15(b) to conform to the reasons given by Hunter as a 
basis for his refusal to recommend her. The district judge 
refused to allow the amendment on the basis that it 
would change the entire character of the case. Also he 
pointed out that the evidence which formed the basis for 
the motion was elicited by questions from the court and 
that it came in over the objection of the plaintiff; that 
with notice this point could be much more fully developed 
since neither side had come prepared on this issue, and to 
allow the amendment at that late date would be to do so 
without such development. However, the judge stated 
that in the event of appeal, in order that the appellate 
court might have the benefit of the lower court’s views 
in this aspect of the case, he had dealt with the case as 
if the motion to amend had been granted.

Judgment was entered, refusing to enjoin the Board on 
the basis that Mrs. Henry had failed to sustain her burden

Appendix B



30

of proof that the refusal to renew her contract was due 
to her civil rights activities. On the contrary, the finding 
was that the Board was without authority to renew the 
contract due to Hunter’s failure to recommend Mrs. Henry, 
and thus was not properly a party to the suit. Further 
the court found that the reasons to which Hunter testified 
constituted good cause and that he exercised sound dis­
cretion in not recommending Mrs. Henry for re-employ­
ment. The court refused to rule on the constitutionality 
of the statutory requirement that teachers list their or­
ganizational activities, stating that: “Inasmuch as plain­
tiff in her present status as a non-teacher is not affected 
by this requirement, this issue is now moot”.

The district judge filed a full opinion,2 stating the facts 
and issues and the reasons and grounds for his findings, 
decision and judgment.

We agree with his decision and judgment and adopt 
his opinion as our own, and, because we do, it will be un­
necessary for us to repeat or discuss further his f ind i n g s  
and conclusions. It will be sufficient to say that we ap­
prove and adopt his opinion and the findings and con­
clusions stated in it and order the judgment AFFIRMED.
BROWN, Circuit Judge, Concurring.

In joining in the affirmance, I would emphasize two 
things about the Court’s decision. First, though the 
Superintendent may have broad discretion in recommend­
ing or refusing to recommend a teacher for employment 
by the Board, the Court recognizes that this discretion 
does not prevent judicial inquiry into the constitutional 
propriety of his motives in refusing to recommend Plain­
tiff. See Hornsby v. Allen, 5 Cir., 1964, 326 F.2d 605, re­

Appendix B

2 Henry v. Coahoma County Board of Education, et al. F.Supp.



31

hearing denied, 330 F.2d 55. Discretion gives much power, 
hut this power may never be used to interfere with, or 
discourage, the exercise of federally guaranteed civil rights 
including the right to persuade or encourage others in 
the exercise of their civil rights. United States v. Bruce,
5 Cir., 1965,-----F.2d —  [No. 22028, Nov. 16, 1965]; see
United States v. Board of Educ. of Green County, Miss., 
5 Cir., 1964, 332 F.2d 40. Second, though a teacher’s 
husband’s criminal record and involvement in litigation 
undoubtedly in many cases may justify a refusal to recom­
mend her for this sensitive employment, if in fact such a 
record and such involvement spring wholly from attempts 
by him to exercise these broadly defined civil rights, then 
under such circumstances these considerations would not 
justify a refusal to recommend either under the exercise 
of—or the guise of exercising—such discretion.

The Court affirms because the Plaintiff failed to prove 
either that the Superintendent’s refusal to recommend her 
was based on the civil rights activity of her or her hus­
band, or that her husband’s criminal record, which the 
Superintendent did consider, arose primarily from con­
stitutionally protected assertions of civil rights.

Appendix B



32

Judgment

UNITED STATES COURT OF APPEALS 
F ob the F ifth  Circuit 

October Term, 1965 
No. 21438

D. C. Docket No. 43-62

Noelle M. H enry,
Appellant,

C o a h o m a  C o u n t y  B o a r d  o f  E d u c a t i o n , et al.,
Appellees.

a p p e a l  f r o m  t h e  u n i t e d  s t a t e s  d i s t r i c t  c o u r t

FOR T H E  NO RTH ERN DISTRICT OF M ISSISSIPPI

B e f o r e  :
H utcheson and Brown, Circuit Judges, 

and Morgan, District Judge.

This cause came on to be heard on the transcript of the 
record from the United States District Court for the 
Northern District of Mississippi, and was argued by coun­
sel;

On c o n s i d e r a t i o n  w h e r e o f , It is now here ordered and 
adjudged by this Court that the judgment of the said 
District Court in this cause be, and the same is hereby, 
affirmed;



33

Judgment

It is further ordered and adjudged that the appellant, 
Noelle M. Henry, be condemned to pay the costs of this 
cause in this Court for which execution may be issued out 
of the said District Court,

December 3, 1965

Brown, Circuit Judge, Specially Concurs.
Issued as Mandate: Jan. 12, 1966



34

On Petition for Rehearing

I n  t h e

UNITED STATES COURT OF APPEALS 
F ob the F ifth  Circuit 

No. 21438

Noelle M. H enry,
Appellant,

Coahoma County Board of E ducation, et al.,

Appellees.

APPEAL FROM T H E  U N ITED  STATES DISTRICT COURT 

FOR T H E  NO RTH ERN DISTRICT OF M ISSISSIPPI

(January 4, 1966)
B e f o r e  :

H utcheson and Brown, Circuit Judges, 
and Morgan, District Judge.

P er Curiam:

It is Ordered that the petition for rehearing in the 
above entitled and numbered cause be, and it is hereby 
Denied.

U. S. Court of Appeals 

F iled
J an. 4, 1966

E dward W. W adsworth 
Clerk



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