Campbell v. Gadsden County District School Board Reply Brief of Defendants - Appellants - Answer Brief Cross Appellees

    UNITED STATES

COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 7 5 -1 9 9 8

WITT CAMPBELL

Plaintiff-Appellee-Cross-Appellant 
versus

GADSDEN COUNTY DISTRICT SCHOOL BOARD,
ET AL., ETC.,

Defendants-Appellants-Cross-Appellees

Appeal from the United States District Court for 
the Northern District of Florida

REPLY BRIEF OF DEFENDANTS- 
APPELLANTS - ANSWER BRIEF CROSS APPELLEES

LAW OFFICES OF 
BRIAN T. HAYES 
Post Office Box 1385 
Tallahassee, Florida 32302
Attorneys fo-r Defendants-

Appellants, Cross Appellees



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. ■ 75-1998

WITT CAMPBELL,
Plaintiff-Appellee 

Cross Appellant

versus

GADSDEN COUNTY DISTRICT SCHOOL BOARD,
ET AL,, ETC,,Defendants-Appe Hants 

Cross Appellees

CERTIFICATE REQUIRED BY FIFTH CIRCUIT LOCAL 
RULE 13(a)

The undersigned, counsel of record for Appellants
certificates that the following listed parties have an interest
in the outcome of this case. These representations are made
in order that Judges of this Court may evaluate possible
disqualification or refusal pursuant to Local Rule 13(a).

Witt Campbell, for himself and 
others similarly situated 
Gadsden County Board of Education, 
M.D, Walker, as Superintendent of 

Schools of Gadsden County 
Edward Fletcher,
Cecil Butler



C. W. Harbin, Jr.
Will X. Ramsey, Sr., 
Randolph Greene, as members 

of the Gadsden County 
Board of Ecuation



TABLE OF CONTENTS

PAGE
REPLY

I The District Court Improperly Exercised
Its Jurisdiction Over the Defendants. 1

II and
IV The “District Court Erred in its Applica­

tion of the Singleton Standards and Im­
properly Ordered Plaintiff's Reappointment 
to an Elementary School Principalship. 3

III The District Court Erred in Granting the
Plaintiff an Award of Attorney's Fees 7

ARGUMENT-CROSS APPEAL
V The District Court Did Not Err In Finding

That Defendants Did Not Practice a Pattern 
of Racial Discrimination.

VI The District Court Did Not Err in Not 
Awarding the Plaintiff Back Pay and
Other Equitable Monetary Relief. 10

x



TABLE OF CITATIONS

PAGE
Adamias v. University of Nevada, 359 F.Supp

825 (D.C. Nev., 1973) 7
Adkins v. Duval County School Board, et al,

(5th Cir., 1975) Case No. 74-1653 1
Bassett v. Atlantic Independent School District

482 F .2d 1268, 1272 (5th Cir., 1973) 4, 6
Donaldson v, O'Connor, 493 F.2d 507 (5th Cir,

1974) 7, 10
Edelman v, Jordan, 94 S.Ct. 1347, 39 L.Ed.2d

662 (1974) 10

Jones v. Denwiddie County School Board, 373
F. Supp 1105 (D.C. Va., 1974) 10

Jones v. Jefferson County Board of Education,
359 F. Supp. 1081 (D.C. Tenn. 1972) 10

Pelisek v. Trevor State Graded School District
No. 7 of the Town of Salem, Kenosha County,
Wisconsin, 371 F. Supp 1064, 1065 (D.C.
E. D. Wise., 1974) 2

Rochester v. Baganz, 365 F.Supp. 179 (D.C. Del.
1973) 2

Singleton v. Jackson County Municipal School
District, 419 F.2d 1211 (5th Cir., 1970) 3, 4, 6

Smyl, Inc. v. Gerstein, 364 F. Supp 1302, 1310
(S.D. Fla., 1973) 7

United Farmworkers of Florida Housing Project 
Inc., et al v. City of Delray Beach, 493
F. 2d 799 (5th Cir,, 1974) 1

U.s, v, Gadsden County District, TCA 1616 3, 8

1 1



OTHER CITATIONS
28 U.S.C., Section 1331
28 U.S.C., Section 1343
42 U.S.C., Section 1981, 1983, 1985
U.S. Constitution, 14th Amendment
Florida Statutes 230.33(7)
Florida Statutes 231.351 
Florida Statutes 231.36 et seq.

iii

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Portions of the transcript will be designated by the 

symbol Tr followed by a dash and the page number as in (Tr-1).
The following symbols will also be used: App for

appendix and AB for Appellee's brief.

xv



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 75-1998

WITT CAMPBELL,
Plaintiff-Appellee 

Cross Appellant
versus

GADSDEN COUNTY DISTRICT SCHOOL BOARD, 
ET AL, ETC.,

Defendants-Appellants 
Cross Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE NORTHERN DISTRICT OF FLORIDA

REPLY BRIEF OF DEFENDANTS-APPELLANTS 
ANSWER BRIEF CROSS APPELLEES



REPLY

I
THE DISTRICT COURT IMPROPERLY EXERCISED 
ITS JURISDICTION OVER THE DEFENDANTS,

In Adkins v. Duval County School Board, et al (5th Cir., 
1975), Case No. 74-1653, this Court made it clear that a 

School Board is not a "person" for purposes of establishing 
jurisdiction under 42 U.S.C., Section 1981, 1983, and 1985 

and 28 U.S.C., Section 1343,
Appellee suggests that jurisdiction is established 

against the members of the School Board and the Superintendent 

as individuals under the above named statutes. However, 

Defendants-Appellants contend that as indivuduals none of the 
named defendants or the school superintendent has any authority 
to act under Florida Statutes 230.33(7), 231.351, and 231.36, 
et seg. It is only in their representative and/or official 
capacity that these defendants took any action which affected 
the Plaintiff, WITT CAMPBELL.

It is possible that in their representative and/or official 
capacity, the School Board members and the school Superintendent 
may be sued under 42 U.S.C., Section 1981, 1983 and 1985 
and 28 U.S.C., Section 1343 for injunctive and declaratory 
relief only. See United Farmworkers of Florida Housing Project,
Inc., et al v. City of Delray Beach, 493 F.2d 799 (5th Cir., 1974).



However, Defendants-Appellants contend that jurisdiction 

should not be allowed against the School Board members and the 

School Board Superintendent in their representative capacities 

either because the Plaintiff-Appellee in the instant case is 
complaining only of the action taken by the individual board 

members as a board of education, (Emphasis supplied). See 
Pelisek v. Trevor State Graded School District No. 7 of the 
Town of Salem, Kenosha County, Wisconsin, 371 F.Supp 1064,

1065 (D.C.E.D. Wise., 1974) and the cases cited therein.
Such action against the individual board members as a board 
of education is in actuality one against the school board. 
Therefore, Defendants-Appellants Motion to Dismiss the School 

Board in their official capacities, and the Superintendent 
of Schools in his official capacity should have been granted. 

Jones v. Denwiddie County School Board, 373 F.Supp. 1105 
(D.C. Va., 1974) Rochester v, Baganz, 365 F. Supp. 179 

(D.C , Del,, 1973),
Jurisdiction under the Fourteenth Amendment cannot be 

maintained since the Plaintiff-Appellee did not prove racial 

discrimination against him.
Jurisdiction under 28 U.S.C., Section 1331 was not alleged 

nor was the requisite jurisdictional amount of $10,000 proved.
For these reasons, Defendants-Appellants ask this Appel­

late Court to dismiss this action for lack of jurisdiction.



II and IV

THE DISTRICT COURT ERRED IN ITS APPLICATION 
OF THE SINGLETON STANDARDS AND IMPROPERLY OR­
DERED PLAINTIFF'S REAPPOINTMENT TO AN 
ELEMENTARY SCHOOL PRINCIPALSHIP.

The facts which Appellee's brief confuses and which 
actually control this case are:

1. The Plaintiff, WITT CAMPBELL, served as principal 

of Stevens Elementary School from the 1955-56 school year 
through the 1969--70 school year (App. 23).

2. Pursuant to the directives of the 1970 desegregation 
Order entered in the case of U. S. v. Gadsden County District 
TCA-1616, Stevens Elementary School was phased out. This was 
the only elementary school phased out by the desegregation 

order, and this resulted in a reduction by one of the number 
of elementary school principalships available in the school 

system.
3. After this desegregation order was issued, the 

School Board had just sixteen days to transfer student assign­
ments and reassign staff teachers, principals and other personnel 

within the school system,
4. The Plaintiff was transferred to Assistant Principal 

and Desegregation Specialist at Chattahoochee High School, 
Chattahoochee, Florida, In his new position, Plaintiff received 

a five hundred dollar pay increase and remained a tenured 

administrator in the system.

-3



5. During this hectic period, there was no written policy 

which governed the reassignments by the school board.
Defendants-Appellants made the reassignments which were 

necessary to effect the orderly transfer from a dual school 
system to a unitary one. Defendants Answers to Interrogatories 

3(b) (App. 20). It is quite possible to construe the 1970 
Desegregation Order as requiring the Plaintiff to be the one 
reassigned to a new position since it was his elementary 

school which was phased out by the order.
6. The Plaintiff contends that his reassignment violated 

Singleton since it was not made pursuant to written, objective

and nondiscriminatory standards.
7. Admittedly the standards were not written, however, 

the Plaintiff's reassignment was not the result of any dis­
criminatory pattern or practice on the part of the Defendants- 

Appellants. Findings of Fact Number 6 (App. 38).
8. Additionally, this Court has previously recognized 

that when the Singleton decision was first rendered there was 
a great deal of confusion on the part of School Boards and 
Administrators as to what was required of them. Bassett, yh 
Atlantic Independent School District, 485 F.2d 1268, 1272

(CA 5, 1973) .
9. As a result of this alleged violation of Singleton, 

Plaintiff contends that he is entitled to be placed in an ele­
mentary school principalship.

- 4 -



10. The District Court found that there has been no new

openings of any elementary school principalships since the 1970 

desegregation order was entered. Findings of Fact, announced 
from the Bench (Tr 99, line 7 through line 18) set forth in 
Appellant's brief, page 10, 11.

11. The Defendants-Appellants make no assertion as to 
the openings at the secondary school level since the Plaintiff 
has stated he wants an elementary school principalship and the 

availability of secondary school principalships.was not con­
tested at trial and is not the subject of this appeal. The 
Plaintiff-Appellee unnecessarily set forth facts pertaining to 

the availability of secondary school principalships in his 

Statement of Facts (AB-6).
12. Additionally, Defendants-Appellants would like this 

Court to note that the unsubstantiated facts as to elementary 
school principalships set forth by Plaintiff-Appellee on page 
6 of his brief, are in direct contravention to the Findings 
made by the District Court. Plaintiff-Appellee has deliberately 
strayed from the trial record throughout his brief and has 
intentionally misled this Court as to the facts in this case.

Appellee states in Footnote 1, page 4 of his brief, that 
the Gadsden County School Board changed the names of five 
formerly all black schools while the names of white schools 
were not similarly changed. This statement is not pertinent 

to the issue before this Court on Appeal, to-wit: whether or

not the Plaintiff is entitled to an elementary school

-5-



principalship, and it is completely irrelevant. This footnote 

is material dehors the brief which the Plaintiff-Appellee 
entered intending to prejudice the Defendants-Appellants.

13. At the conclusion of the trial, the District Court 
entered a permanent injunction directing, the Defandants to 

reinstate the Plaintiff to an elementary school principalship.
14. The District Court ordered this without comparing 

all the pre-desegregation order, incumbant elementary school 

principals with the Plaintiff, WITT CAMPBELL, on objective, 

written and nondiscriminatory standards.
15. This permanent injunction requires the Defendants 

to "bump" a pre-desegregation order, incumbant elementary 
school principal and to give that principalship to the 

Plaintiff.
16. The net effect of this permanent injunction is a 

violation of the constitutional rights of the "bumped" ele­

mentary school principal,
17. It is ordered dispite the fact that Singleton only 

requires that any person demoted as a result of a desegregation 
order is to be given a chance to fill the next vacancy in the 

position from which he was demoted.
As in Bassett, v. Atlantic Independent Schop.l_District,

485 F.2s 1268, 1272 (5th Cir., 1973), this case should be 
reconsidered at the trial level to determine the advisability 
of entering an order mandating the school board to offer 

WITT CAMPBELL an elementary school principalship.

-6-



Ill

THE DISTRICT COURT ERRED IN GRANTING THE 
PLAINTIFF AN AWARD OF ATTORNEY'S FEES.

The general rule followed by American Courts is that 
litigants must bear the burden of their own attorney's fees.

Appellee cites Section 1617 of Title 20, U.S.C. as 
authority for the award of attorney's fees. AB-22. However, 
Appellants contend that the filing of this suit and its 
prosecution did not accelerate the elimination of racial 

discrimination nor was it necessary to bring about compliance 

with any Federal legislative or judicial policy.
Since Appellants did not violate the mandate of Singleton 

by now offering the Plaintiff an elementary school principalship 

nor did the Appellants practice a pattern of racial discrimin­
ation against the Plaintiff, the award of attorney's fees should 

be overturned as an abuse of the District Court's discretion.
Further, attorney's fees can be likened to money damages 

in that they should not be assessed against elected officials 
acting in their representative and/or official capacities 
when they have acted in good faith and non-discriminatorily.
Smyl, Inc, v. Gerstein, 364 F.Supp. 1302, 1310 (S.D. Fla., 1973). 

Adamias v. University of Nevada, 359 F.Supp, 825 (D.C. Nev.
1973) Donaldson v, O'Connor, 493 F.2d 507 (5th Cir. , 1974).

7-



CROSS APPEAL

V

THE DISTRICT COURT DID NOT ERR IN NOT FINDING 
A PATTERN AND PRACTICE OF RACIAL DISCRIMINATION.

In its Order of Partial Dismissal denying certification 
of class, the District Court found that the essence of the 
Plaintiff's broad-based attack of Defendants' alleged 
discriminatory employment practices was that Defendants' 

practices violated the Court's order in United States v.
Gadsden County Board of Education, M.C.A. 808 that a unitary 

system of education be established. The District Court held 
that "the proper procedure for groups seeking to question 
the implementation of desegregation orders in school cases is 

to file a petition for intervention in the ongoing school 
desegregation case over which the Court has continuing active 
jurisdiction rather than by beginning a new suit." See the 

cases cited therein (Appendix-34)i
The statistics which the Appellee so painstakingly but 

needlessly laid out for the Appellate Court in Part B of 
Plaintiff's Statement of Facts AB 7-12, are avowedly the result 
of Defendants'-Appellants' interpretation of the 1970 Order in 

U,S. v. Gadsden County as mandating the maintenance _of the 

black-white teacher ratio in existence at the time of the 
desegregation order. While this involves judicial interpretation

-8-



of the desegregation order, it is not the proper subject of a 

class action suit alleging a manifestation of broad, sweeping 
and all pervasive policy of an imbedded and total racial 
employment discrimination.

The present appeal concerns one disgruntled employee whose 
discontent stems from a cause other than racial discrimination.

-9-



VI

THE DISTRICT COURT DID NOT ERR IN NOT 
AWARDING THE PLAINTIFF BACK PAY AND OTHER 
EQUITABLE RELIEF,

In its Order amending the Order of March 19, 1974, the 
District Court retained jurisdiction of this cause and expressed 

its opinion that if warranted, injunctive relief would be 
available against Defendants as members of the school board.

(App. 15). However, the District Court stated that it would 
not award back pay to the Plaintiff (App. 16) and cited 
Edelman v. Jordan, 94 S.Ct. 1347, 39L.Ed. 2d 662 (1974) as 

authority for this proposition.
This order is consistent with the view that the money 

with which to pay such a back pay award cannot come from the 

state or public treasury.
If the money cannot come from the public treasury, then 

it must be assessed against the individual Defendants to be 
paid by them from their own private funds. However, this is 
in direct contravention of the rule that money damages should 
not be assessed against those acting in their representative 
capacity in good faith. Donaldson v. O'Connor, 493 F.2d 507 
(5th Cir,, 1974) Jones v. Jefferson County Board of Education, 

359 F.Supp, 1081 (D,C. Tenn,, 1972).
If the Plaintiff was entitled to any relief at all in 

this case, it was limited to declaratory and injunctive relief.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been 

furnished by mail to Kent Spriggs, 324 West College Avenue, 

Tallahassee, Florida; Jack Greenberg, 10 Columbus Circle,
New York, N. Y.; Jack Gray, 10 Columbus Circle, New York, 
N.Y.; and Richard Gardner, The Quincy State Bank Building, 
Quincy, Florida, this day of September, 1975.

LAW OFFICES OF BRIAN T. HAYES 
Post Office Box 1385 
Tallahassee, Florida 
ATTORNEY FOR DEFENDANTS-APPELLANTS 
CROSS APPELLEES.



A. B. LETTER SERVICE, 
327 RUE CHARTRES 

NEW ORLEANS, LOUISIANA
INC.

70130