North Carolina Teachers Association v. Asheboro City Board of Education Brief for Appellee

    BRIEF FOR APPELLEE

IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 11,121

THE NORTH CAROLINA TEACHERS ASSOCIATION, 
a corporation,

and

GAINES W. H. PRICE,
Appellants,

v.

THE ASHEBORO CITY BOARD OF EDUCATION, 
a public body corporate,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

Respectfully submitted,
WALKER, ANDERSON, BELL & OGBURN

H. H. Walker 
H. R. Anderson

Law Building
Asheboro, North Carolina 27203 

Attorneys for Appellee



INDEX

Page

Statement of E ase.............................................................................  1

Statement of F a c t s ..........................................................................  5

Issu e .................................................    9

Arguement...........................................................................................  10

Certificate................        17

Appendix.............................................................................................  19

TABLE OF CASES

Briggs v. Elliott, 132 F.Supp.776, 777 (E.D.S.C. 1955)..................13

Brooks v. School District of City of Moberly, Missouri, 267 F.2d
733................................................................................................  12

Buford, et al v. Morganton City Board of Education, 244 F. Supp.
437, (W.D.N.C. 1965)...............................................................  15

Chambers v. Hendersonville City Board of Education, 364 F.2d
189 (4 Cir. 1966)..................................................................  11,16



Franklin v. County School Board of Giles County, 360 F.2d 325
(4 Cir. 1966 )..................................................................  14-15-16

Johnson v. Branch, 364 F.2d 177 (4 Cir. 1966)..............................  6

Louisiana, et al v. United States, 38 US 145, 154, 85 S. Ct. 817,
13 L.Ed. 2d 709, 715 (1965).................................................  13

Morris v. Williams, 149 F.2d 703 (8 Cir. 1945)..............................  12

STATUTE:

North Carolina General Statutes § 115-58, 115-72...................Ap. 19

North Carolina General Statutes § 115-142...................................... 20



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 11,121

THE NORTH CAROLINA TEACHERS ASSOCIATION, 
a corporation,

and

GAINES W. H. PRICE,
Appellants,

v.

THE ASHEBORO CITY BOARD OF EDUCATION, 
a public body corporate,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRIEF FOR APPELLEE

STATEMENT OF THE CASE

This appeal is from a final judgment (456a) entered on 
the 31st day of October, 1966, ( -F . Supp.-) of the United 
States District Court for the Middle District of North Caro- 
Irna, Greensboro Division, said final judgment following 
Findings of Fact, Conclusions of Law and Opinion in Case 
No. C-102-G-65 dated October 19, 1966, (455a). The judg-



2

ment recited that plaintiffs (appellants) have not established 
the right to any of the relief prayed for in the complaint or 
amendments thereto, and the action was thereupon dismissed.

This action was originally instituted by The North Caro­
lina Teachers Association in which it sought to have The 
Asheboro City Board of Education enjoined from hiring, as­
signing, and dismissing teachers on the basis of race and 
color, and by order signed on February 11, 1966, the original 
plaintiff was allowed to amend by praying that all teachers 
found to be denied employment by virtue of any constitutional 
rights having been violated by reinstated in the same or com­
parable positions in the Asheboro School System. Motion for 
preliminary injunction was denied on February 11, 1966. and 
motion of the Asheboro City Board of Education to dismiss 
was likewise denied on the same day. The cause came on for 
hearing on May 3, 1966, and plaintiff introduced evidence con­
sisting of exhibits and testimony. The defendant offered no 
evidence.

Following the closing of the school which was then known 
as Central High School and the conversion of this school into 
Central School, several conferences were held with the teach­
ers in the entire system (144a). Letters were sent to Negro 
teachers at Central High School because of the closing of 
the school, and this was due to the fact that there appeared 
at that time to be uncertainty as to the availability of posi­
tions for certain teachers.

On February 11, 1965, the defendant adopted a plan for 
compliance with Title VI of the Civil Rights Act of 1964 
(196a). Following conferences with the United States Office 
of Education, there have been some revisions to this plan



3

(196a). The Board of Education of the City of Asheboro fur­
ther directed all personnel connected with the school system, 
as a part of its policy governing employment and assignment 
of staff and professional personnel, that “ Employment and/ 
or assignment of staff members and professional personnel 
shall be based henceforth on factors which do not include 
race, color, or national origin and shall be on a non-discrimi- 
natory basis. Factors to be considered will include training, 
competence, experience, and other objective means of mak­
ing evaluations.”  This policy and directive was adopted in 
June, 1965, (51a).

In the amended complaint plaintiff requested the Court 
to order reinstated all teachers found by the Court to be den­
ied employment in violation of their rights under the due pro­
cess and equal protection clause of the Constitution.

The defendant denied that there has been any discrimina­
tion as against any teachers, severally or individually, and 
requested the Court to dismiss the action. The defendant 
contended that the nine (9) Negro teachers who taught in the 
defendant’ s school system during the school year 1964-65 
were not offered additional employment only after these tea­
chers were considered and compared with all other teachers 
in the entire school system in comparable positions. At the 
same time certain white teachers were released for cause and 
others resigned after conferences.

Following the hearing on May 3 and May 4, 1966, Gaines 
W. H. Price filed a motion to intervene or be added as a party 
plaintiff in this cause and requesting that he be allowed to 
adopt the pleadings in evidence of the original plaintiff. De­
fendant filed a response to this motion to intervene on the 
3rd day of July, 1966. Following this, a hearing on the motion 
to intervene was held, and the parties hereto stipulated that



4

certain testimony would be admitted concerning Gaines W. H. 
Price (430a).

On the 15th of September, 1966, the Court permitted Gain­
es W. H. Price to intervene as a party plaintiff and to adopt 
the pleadings of the original party plaintiff heretofore filed 
in the matter. On October 19, 1966, the Court filed its Find­
ings of Fact, Conclusions of Law and Opinion and found that 
the action did not in any way involve pupil assignment, but 
raised the issue only of whether the defendant in its system 
hires, assigns, and dismisses teachers on the basis of race 
or color. No issue was involved concerning the discharge of 
a teacher prior to expiration of his contract of employment 
(439a). The Court further found (435a) that during the 1964- 
65 school year the defendant operated a total of nine (9) 
schools, consisting of one senior high school, two junior 
high schools, five elementary schools, and one union school, 
then known as Central High School. During the school year
1964- 65 twenty-four (24) Negro teachers were employed in 
the school system of the defendant and were assigned to 
Central High School, then a union school. In February, 1965, 
the defendant took action effective for the 1965-66 school 
term to reorganize its school system. This resulted in the 
conversion of the all-Negro Central High School into an ele­
mentary school, grades 1 through 6. The name was changed 
to Central School and the prior teacher allotment of twenty- 
four (24) was reduced to twelve. The teacher allotment for 
the defendant's entire school system for the school year 1964 
-65 was two hundred nine (209), and the allotment for the
1965- 66 school year was two hundred six (206). Prior to 1965 
-66 Negro teachers were assigned to the Central High School 
and white teachers were assigned to the other schools in the 
system. Upon the reorganization of the system, commencing 
with the school year 1965-66, the Asheboro High School ac­
commodates all students in the entire system attending grades



5

10 through 12; Asheboro Junior High School accommodates 
all students in the entire system attending grades 8 and 9; 
and the Fayetteville Street School accommodates all students 
in the entire system attending grade 7. Under this single as­
signment policy, all students, Negro and white, in a given 
grade, attend the same school from grades 7 through 12. Dur­
ing the school year 1965-66, eleven (11) Negro teachers 
taught as Central School, one (1) Negro teacher taught at 
Asheboro High School, one (1) Negro teacher taught at Ashe­
boro Junior High School and one (1) Negro teacher taught 
part-time at the Balfour Elementary School.

The Court further found (438a) that resignations were 
requested and received from four (4) white teachers who 
taught in the defendant’ s school system during the 1964-65 
school year, and, in addition, other white teachers resigned 
after conferences. Not offered re-employment for the year 
1965-66 were nine (9) Negro teachers, which number includes 
the individual plaintiff.

STATEMENT OF FACTS

In February of 1965, pursuant to the requirements of the 
Civil Rights Act of 1964, the defendant adopted a plan of 
compliance, and this plan was subsequently revised in part 
following conferences with the United States Office of Edu­
cation (196a). The schools of the Asheboro City School Sys­
tem are approved and accredited by the North Carolina State 
Department of Public Instruction and by the Southern Associ­
ation of Colleges and Schools (195a). Prior to the adoption 
of the plan for compliance with Title VI of the Civil Rights 
Act of 1964 there had never been an application for transfer 
by a Negro student which was not approved in the entire 
Asheboro City School System (196a). It is respectfully sub­
mitted to the Court that there is no evidence at all in this



6

case that there has ever been any difficulty with a Negro 
student getting in any school of his choice in the Asheboro 
system.

As stated in the case of JOHNSON v. BRANCH, 364 F.2d 
177 (4 Cir. 1966): “ The law of North Carolina is clear on the 
procedure for hiring teachers. All contracts are for one year 
only, renewable at the discretion of the school authorities. 
A contract must be signed by the Principal as an indication 
of his recommendation and then transmitted to the District 
School Committee, whose business it is either to approve or 
disapprove it in their discretion.”  (N. C. G. S. Sec. 115-72). 
There is no vested right to public employment.

The stipulations entered into by and between the parties 
to this action on the 15th day of September, 1966, (430a) 
certainly dispute the claim of plaintiffs that the teachers not 
offered new contracts of employment were not compared by 
the administration with all teachers in comparable positions. 
The pertinent portion of the stipulation is as follows: “ Each 
of the Negro teachers not offered new contracts of employ­
ment was compared by the administration with all teachers in 
comparable positions. For instance, Gaines W. H. Price was 
compared to Joseph B. Fields, A. G. Harrington, A. B. Fair- 
ley, and J. A. Hayworth; teacher Price had a bachelor’ s de­
gree while teachers Fields, Harrington, Fairley, and Hay­
worth all had master degrees. Teacher Price had a Class A. 
Certificate in the music (science) area while teachers Fields, 
Harrington, and Hayworth had Graduate Certificates in either 
music or science, civics or chemistry and general science. 
Teacher Price was rated by the administration as an aver-



7

age teacher while teacher Fields was rated superior, teacher 
Harrington rated above average, teacher Fairley rated super­
ior, and teacher Hayworth was rated above average. In addi­
tion to the general qualifications, other qualifications were 
listed in the record showing teacher Fields to have an ex­
cellent record in training bands that won superior ratings in 
competition for ten year.”  The stipulations went on further 
to provide that in addition to this portion of the testimony, 
other relevant evidence received concerned with the applica­
tion of standards and criteria as applied to all teachers, 
should and will be considered by the Court in deciding this 
case now pending (430a-431a). The Superintendent stated 
(320a-352a) that as to each of the teachers not offered re­
employment, they were compared with all other teachers in the 
areas of certification. For instance, (321a) teacher Price was 
not re-employed because the Superintendent stated that the 
other band directors both had had preferential qualifications 
as to academic background, performance and some other cata- 
gories, and he compared this teacher with the other two band 
directors. Teacher Kilgore, a Negro not offered re-employ­
ment, accepted employment elsewhere earlier than May of 
1965, but even so, he was compared with the teachers in the 
entire system (331a) who were in comparable positions to 
Jackie E. Kilgore. This was not a general broadside com­
parison, but the teachers were named specifically. Teacher 
Pearline Palmer was compared to six (6) other teachers in 
the library and related fields in the entire Asheboro system. 
Sarah I. Peterson, not offered employment for the year 1965- 
66, was compared with all other persons in comparable posi­
tions by name and individually (337a) (338a) (339a). Lewis 
H. Newberry was compared (339a et seq.) and in addition 
(340a), it was testified that this teacher had a very "annoy­
ing habit”  of presenting worthless checks, even to the school 
in which he was employed on at least three occasions to the 
school, and on occasions to other citizens of the community.



The answer to interrogatories by the Superintendent dated 
March 5, 1966, (90a-95) shows that the written evaluation 
of each teacher in the school system was commenced in the 
year 1964-65 and approximately 200 sheets were attached to 
this answer to interrogatories and introduced in evidence by 
plaintiffs. Plaintiffs did not attach these sheets or make them 
a part of their appendix. The Superintendent stated that the 
criteria used have been developed from the literature of the 
profession and out of the experience of the teaching, super­
visory, and administrative personnel of the school system and 
that all criteria do not carry equal weight (92a), and that at 
least one (1) formal written evaluation and three (3) or more 
non-written evaluations (93a) were made. And it is signifi­
cant that the defendant contended in several instances (367a) 
that the Negro teachers not employed for the 1965-66 year 
were compared with the teachers already in the system as 
well as the new teachers in the areas of their certification.

It seems that the main contention of the plaintiffs is based 
on the letters of May 14, 1965, written and sent to the individ­
ual plaintiff and several other Negro teachers at Central High 
School. However, the letter stated that the applications of the 
teachers to whom the letter was mailed would be kept on file 
for consideration as vacancies arose. There is no evidence 
that any white teacher received such a letter and there is 
evidence that the white teachers for whom there had been 
determined to be no vacancy had been notified previous to 
the May 14 letter (438a). The record affirmatively discloses 
that the Negro teachers’ applications would be kept on file 
and that they would be considered for employment if a vacany 
occurred (364a).

Several white teachers were requested to resign after con­
ference were held. Their names appear on Page 352a, some 
of these teachers having had several years’ experience in the 
Asheboro City School System. As pointed out by the District



9

Court (450a-451a) the white teachers not offered re-employ­
ment did not receive any letter and while not affirmatively 
shown by the evidence, the clear inference is that the white 
teachers were not given the considerations outlined in the 
letter; that is, their applications to remain on file and auto­
matic consideration for vacancies.

The District Court found that the decree in this case is 
dictated by the answer to the issue of whether race was a 
factor entering into the employment and placement of teachers. 
The District Court found that race was not a motivating factor. 
The Court further went on to say that the fact that the teach­
ers at predominantly Negro schools are largely Negro and the 
fact that the teachers at predominantly white schools are 
themselves white violates no part of the Constitution (453a). 
The Court found that the individual plaintiff was not denied 
due process of law or equal protection of the law by the de­
fendant and further found that no person among those alleged 
in the complaint had been denied due process of law or equal 
protection of the law by the defendant and that the request 
of the plaintiffs for an injunction should be denied and motion 
of the defendant to dismiss should be allowed and the Court 
in fact did dismiss the action and denied request for injunc­
tive relief.

ISSUE

Are the plaintiffs in a position to complain that they have 
been denied due process or equal protection under the laws 
when the same standards and criteria were applied to all 
teachers, so long as the action of the Board was not unrea­
sonable, arbitrary, or motivated by racial considerations?



10

ARGUMENT

THE DEFENDANT BOARD HAS THE RIGHT, AUTHOR­
ITY, AND THE OBLIGATION, TO EXERCISE ITS SOUND 
DISCRETION IN REGARD TO THE EMPLOYMENT OR RE­
EMPLOYMENT OF TEACHERS IN THE ENTIRE SYSTEM, 
AND SO LONG AS IT DID NOT ACT CAPRICIOUSLY, AR­
BITRARILY, OR ABUSE ITS DISCRETION THERE WAS NO 
DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF 
LAW, AND THE NEGRO TEACHERS ARE NOT ENTITLED 
TO THE RELIEF SOUGHT IN THIS CASE.

The record clearly shows in this case that each Negro 
teacher notified had been evaluated and compared, just as 
each white teacher in the system had been evaluated and 
compared, with all other teachers in the area of their certi­
ficates and qualifications. This applied to the teachers re­
tained in the system and new teachers employed (369a). 
Following such evaluation and comparisons, white teachers 
as well as Negro teachers were not offered a new contract 
for the year 1965-66. All teachers’ qualifications were con­
sidered to see who was more qualified to teach in the entire 
school system. Evidence elicited from the Superintendent on 
direct examination by plaintiff (277a) in referring to the pro­
cedures and criteria used in evaluating teachers, indicates, 
and there is no evidence to the contrary anywhere in this 
record, that present procedures and criteria had been used 
by the school system for at least 20 years, except written 
evaluations by the principals have been required only one 
year. This written evaluation had to do with the individual 
teachers and did not include a group evaluation which had 
been required of all principals in the school system for at 
least twenty (20) years (277a). Following the beginning of



11

the use of the individual form reports, the group evaluations 
were no longer required (278a). Again, the answer to inter­
rogatories by the Superintendent shows that the present pro­
cedures and criteria used in evaluating all teachers have been 
used for the school system for at least twenty (20) years, and 
in addition (88a), with the respect of such procedures used 
in evaluating the teachers, observations were made by the 
principals constantly; the supervisors -  directly, two to six 
times yearly, and indirectly, constantly; by the Superintendent 
-  directly, irregularly, and indirectly, constantly, and by the 
State Department of Public Instruction -  irregularly. Various 
conference are held concerning the performance of teachers 
(89a) (90a). The criteria used have been developed from the 
literature of the profession and out of the experience of the 
teaching, supervisory, and administrative personnel of the 
school system (91a). The Superintendent, Assistant Super­
intendent, the Director of Elementary Instruction, various 
principals, teachers, and members of the Board of Education 
are all involved in establishing the criteria used in evaluat­
ing teachers (9 la-92 a). The principal, supervisor, and Super­
intendent then use this criteria to make the evaluation of 
teachers.

This case is most certainly factually distinguishable from 
CHAMBERS v. HENDERSONVILLE CITY BOARD OF EDU­
CATION, 364 F.2d 189, (4 Cir. 1966). In the CHAMBERS 
case, litigation had brought about some pupil desegregation 
on a freedom of choice basis. In the instant case there was 
no litigation involved, nor is there any evidence that there 
had been any threatened litigation either as to the pupils or 
the teachers, In our instant case all teachers were put to 
the same test. The Court held in the CHAMBERS case, sup­
ra, at Page 192, that “ white teachers who met the minimum 
standards and desired to retain their jobs were not required 
to the same test. The Court held in the CHAMBERS case, 
supra, at Page 192, that “ white teachers who met the minimum



12

standards and desired to retain their jobs were not required 
to stand comparison with new applicants or with other teach­
ers in the system. Consequently, the Negro teachers who de­
sired to remain should not have been put to such a test.”  
In the instant case, as in the case of BROOKS v. SCHOOL 
DISTRICT OF CITY OF MOBERLY, MISSOURI, 267 F.2d 
733, all of the facts disclose that the officials of the Ashe- 
boro School System prior to the end of the school year did 
in fact carefully and conscientiously compare the qualifi­
cations of all the teachers, using previously established 
uniform standards, even putting the qualifications in writing 
for the year 1965-66. Just as in the BROOKS case, supra, 
the procedure used in the Asheboro system resulted in the 
failure to rehire both white and Negro teachers. This Court 
in JOHNSON v. BRANCH, 364 F.2d 177, (4 Cir. 1966) recog­
nized the right of the North Carolina schools concerning and 
respecting teacher contracts and the right of renewal. It is 
respectfully submitted that the evaluation records themselves 
constituted a specific survey of each teacher in the entire 
system. It is true that the District Court in the instant case 
did cast upon the school authorities the burden of proof to 
expunge itself of any taint or allegation that it trafficked in 
racial consideration in teacher employment and assignment 
(449a). The defendant respectfully contends that this has 
been done in the instant case. It is clear that the District 
Court was totally aware of the absolute necessity of treating 
all teachers alike and having cast upon the school author­
ities the burden of exonerating themselves of the imputation 
of racial discrimination as raised by the complaint, the Dis­
trict Court examined the circumstances in the case of each 
Negro teacher who was not re-employed. This was not a 
sweeping and general survey resulting in a general conclus­
ion, but a very comprehensive and careful examination of 
the reasons in each individual instance for not retaining the 
Negro teachers. The BROOKS case, supra, citing the case 
of MORRIS v. WILLIAMS, 149 F.2d 703 (8 Cir. 1945) held



13

that “ ### teaching is an art; and while skill in its practice 
cannot be acquired without knowledge and experience, ex­
cellence does not depend upon these two factors alone. The 
processes of education involve leadership, and the success 
of the teacher depends not alone upon college degrees and 
length of service, but also upon aptitude and the ability to 
excite interest and to arouse enthusiasm.***”  The question 
presented in the BROOKS case, supra, as it is in the instant 
case, is as to whether or not the method used by the Board in 
employing teachers for the school year 1965-66 was fair and 
objective to all involved.

The District Court’ s findings (450a) set forth that: “ As 
stated in the Court's Findings of Fact, the displaced Negro 
teachers were not treated as new applicants, considered only 
for vacancies existing in the system, but were considered 
for positions for which they were qualified and compared 
with white and Negro teachers who had during the preceding 
year been the occupants of those positions and signified a 
desire to be re-employed.”  The District Court further found 
(452a-453a) that “ it is recognized that the Court has not mere­
ly the power but the duty to render a decree which will, so far 
as possible, eliminate the discriminatory effects of the past 
as well as bar discrimination in the future. LOUISIANA, ET 
AL v. UNITED STATES, 38 US 145, 154, 85 S. Ct. 817, 13 
L.Ed. 2d 709, 715 (1965). Nevertheless the decree in this 
case is dictated by the answer to the issue of whether race 
was a factor entering into the employment, and placement 
of teachers. The Court finds that race was not a motivating 
factor. The fact that the teachers at predominantly Negro 
schools are largely Negro and the fact that most teachers at 
predominantly white schools are themselves white violates 
no part of the Constitution.”  Citing BRIGGS v. ELLIOTT, 
132 F.Supp. 776, 777 (E.D.S.C. 1955).

The testimony in this case, consisting of rather lengthy 
depositions, interrogatories, and answers to interrogatories,



14

and the testimony of the Superintendent, shows in great de­
tail, relating to the individual teachers, that effective stan­
dards and criteria and procedures have been equally applied 
to all teachers of all races in the Asheboro school system. 
The pattern of the evaluation of each teacher is demonst­
rated in the answers to the interrogatories of the Superin­
tendent dated March 5, 1966, and also in the Superintendent’ s 
deposition of September 21, 1965. The Superintendent stated 
(130a) in response to the question to what factors did he 
consider in determining the competency of a teacher that: 
’ ‘The normal, of course, are things you have asked about or 
certainly you have mentioned. You have mentioned degrees; 
you have mentioned experience. But of greatest importance, 
as far as we are concerned, is performance in the classroom, 
classroom performance.

“ Now in addition to that, professional attitude; ability 
to accept responsibility and carry out obligations of a teach­
er; I think certainly we would consider initiative.”  Mr. 
Teachey, the Superintendent, stated (131a) following the 
question: “ I think you stopped with initiative.”  A. “ Accept­
ance of authority; loyalty -  loyalty, of course to the administ­
ration and the school system. And I jotted a new one down a 
few days ago, which I came across in some of the readings on 
the qualifications of a teacher. It had to do with -  This per­
son pointed out that the good teacher is one who can excite 
pupils, who can create enthusiasm among them and this kind 
of thing. These are subjective.”  In response to a question 
(131a) as to whether or not it would be very difficult for the 
Superintendent to evaluate every teacher in the school system 
according to these criteria, the Superintendent replied that 
it would be necessary to depend upon other people.

As to the case of FRANKLIN v. COUNTY SCHOOL 
BOARD OF GILES COUNTY, 360 F.2d 325 (4 Cir. 1966), it



15

is respectfully submitted that the FRANKLIN case was de­
termined in this Court only after there had been a judicial 
determination by the District Court of discrimination because 
of race. Further, the FRANKLIN case was determined in this 
Court on the question which related to whether or not the 
District Court had offered the proper and equitable relief for 
teachers after a Federal Court had in fact found that the 
school board had discriminated against the teachers in res­
pect to employment because of race. Thus, the opinion of 
the Circuit Court in the FRANKLIN case related to the method 
for affording relief and the extent of such relief after this 
determination had been made. And in the FRANKLIN case, 
this Court did not hold that the individual plaintiffs were 
automatically entitled to re-employment but held only that 
the plaintiffs were entitled to re-employment in any vacancy 
which they may be qualified by cerificate or experience.

Appellee respectfully submits that the language of the
BROOKS case, supra, as quoted in the case of BUFORD, ET 
AL v. MORGANTON CITY BOARD OF EDUCATION, 244 F. 
Supp. 437, (W.D.N.C. 1965) is particularly applicable to the 
case now being heard: “ The record discloses that experts 
in the field of education are not in agreement as to the best 
methods of evaluating teachers. Possibly, better methods 
might be available for evaluating teacher qualifications. The 
board has a wide discretion in performing its duties including 
those relating to the employment of teachers. If the board 
acted honestly and fairly in the exercise of its discretionary 
powers, the plaintiffs are in no position to complain, at least 
so long as the action of the board is not unreasonable, arbitra­
ry, or motivated by racial consideration.”

Thus, this appellee respectfully contends that all the



16

evidence points unerringly to the fact that the defendant 
school board has exercised its discretion in the best interest 
of the entire school system and the pupils, as well as of all 
teachers involved. There is no evidence that it has failed in 
the burden put upon it of complying with constitutional re­
quirements as well as the requirements that it act honestly 
and fairly in the exercise of its discretionary powers.

There is no question at all that consideration of race or 
color in the employment, assignment, and retention of teach­
ers is clearly forbidden. CHAMBERS v. HENDERSONVILLE 
CITY BOARD OF EDUCATION, supra, FRANKLIN v. 
COUNTY SCHOOL BOARD OF GILES COUNTY, supra, 
BRADLEY v. SCHOOL BOARD OF CITY OF RICHMOND, 
supra. This appellee respectfully submits to the Court that 
there is no evidence that race or color entered into the em­
ployment, assignment or retention of teachers. Appellee 
further respectfully submits that it has a fully integrated 
system of education, and that this is borne out by the table 
contained in the Findings ofFact by the District Judge (437a); 
that there was at the time of the institution of this suit one 
Negro teacher teaching in the completely integrated Asheboro 
High School, one in the completely integrated Asheboro Junior 
High School, one in the Balfour Elementary School, and in 
addition that there was a white principal and one white teach­
er assigned to Central. Appellee respectfully contends that 
the same standards and criteria did apply and now apply to 
all teachers and applicants and respectfully submits that the 
action of the District Court should be affirmed in all respects.

Respectfully submitted,
WALKER, ANDERSON, BELL & OGBURN 

H. H. Walker
Law Building H. R. Anderson
Asheboro, North Carolina 27203 

Attorneys for Appellee



17

CERTIFICATE

Four copies of this Brief were mailed (first class) to Mr. 
J. Levonne Chambers, 405-1/2 East Trade Street, Charlotte, 
North Carolina 28202; Mr. Conrad 0. Pearson, 203-1/2 East 
Chapel Hill Street, Durham, North Carolina 27702; Mr. Sam- 
mie Chess, Jr., 622 East Washington Drive, High Point, North 
Carolina, and Messrs. Jack Greenberg and James M. Nabrit, 
III, 10 Columbus Circle, New York, New York, 10019, Counsel 
for the Appellants, on February 28, 1967, the same day on 
which this Brief was filed with the Clerk of the United States 
Fourth Circuit Court of Appeals, Richmond, Virginia.

Hal H. Walker



APPENDIX

THE NORTH CAROLINA STATUTES INVOLVED

The text of the North Carolina Statutes involved is as 
follows:
GENERAL STATUTES OF NORTH CAROLINA, CHAPT­
ER 115, SECTION 58 DUTIES WITH RESPECT TO E- 
LECTION OF PRINCIPALS, TEACHERS AND OTHER 
PERSONNEL.

It shall be the duty of the county superintendent to approve, 
in his discretion, the election of all teachers and personnel 
by the serveral school sommittees of the administrative unit. 
He shall then present the names of all principals, teachers 
and other school personnel to the county board of education 
for approval or disapproval, and he shall record in the minutes 
the action of the board in this matter. Provided, that in county 
administrative units which elect to operate as one school 
district without a school committee it shall be the duty of the 
county superintendent to recommend and the board of edu­
cation to elect all principals, teachers, and other school per­
sonnel in the county administrative unit.

It shall be the duty of the city superintendent to record in 
the minutes the action of the city board of education in the 
election of all principals, teachers and other school personnel 
elected upon the recommendation of the superintendent. 

GENERAL STATUTES OF NORTH CAROLINA, CHAPT­
ER 115, SECTION 72 HOW TO EMPLOY PRINCIPALS, 
TEACHERS, JANITORS AND MAIDS. The district com­

mittee, upon the recommendation of the county superintendent 
of schools, shall elect the principals for the schools of the 
district, subject to the approval of the county board of edu­
cation. The principal of each school shall nominate and the 
district committee shall elect teachers for all the schools of



20

the district, subject to the approval of the county superin­
tendent of schools and the county board of education. Like­
wise, upon the recommendation of the principal of each 
school of the district, the district committee shall appoint 
janitors and maids for the schools of the district, subject to 
the approval of the county superintendent of schools and the 
county board of education. No election of a principal or teach­
er, or appointment of a janitor or maid, shall be deemed valid 
until such election or appointment has been approved by the 
county superintendent and the county board of education. No 
teacher under eighteen year s of age may be employed, and the 
election of all teachers and principals and the appointment 
of all janitors and maids shall be done at regular or called 
meetings of the committee.

In the event the district committee and the county super­
intendent are unable to agree upon the nomination and elec­
tion of a principal or the principal and the district committee 
are unable to agree upon the nomination and election of teach­
ers or appointment of janitors or maids, the county board of 
education shall select the principal and teachers and appoint 
janitors and maids, which selection and appointment shall 
be final.

The distribution of the teachers and janitors among the 
several schools of the district shall be subject to the ap­
proval of the county board of education.

GENERAL STATUTES OF NORTH CAROLINA, CHAPT­
ER 115, SECTION 142 CONTRACTS OF PRINCIPALS 
AND TEACHERS TERMINATED AT THE END OF 1954- 
1955 TERM; EMPLOYMENT THEREAFTER, (a) The con­

tracts of all principals and teachers now employed in the 
public schools of North Carolina are hereby terminated as 
of the end of the school term 1954-1955. County and city 
superintendents shall give each principal and teacher notice



21

by mail of the termination of his contract, but the failure to 
give such notice shall not have the effect of continuing in 
force of the contract of any principal or teacher beyond the 
end of the 1954-1955 school term.

(b) Any teacher or principal desiring election as teacher 
or principal in a particular administrative unit shall file his 
or her application in writing with the county or city superin­
tendent of such unit. The application shall state the name 
and number of the certificate held, when the certificate ex­
pires, experience in teaching, if any, and the administrative 
unit in which the applicant last taught. It shall be the duty 
of all county and city boards of education to cause written 
contracts on forms to be furnished by the State Superintendent 
of Public Instruction to be executed by all teachers and prin­
cipals before any salary vouchers shall be paid. The con­
tracts of teachers and principals shall be made for the next 
succeeding school year or for the unexpired part of a cur­
rent school year. No county or city board of education shall 
enter into a contract for the employment of more teachers, in­
cluding vocational teachers, than are allotted to that parti­
cular administrative unit by the State Board of Education un­
less provision has been made for the payment of the salaries 
of such teachers from local funds. All contracts shall be sub­
ject to the condition that when the position for which any 
principal or teacher is employed is terminated the contract 
is likewise terminated.