Smith v Morrilton School District BOE Reply Brief for Appellants

    Ilntfrd States GInurt of Appeals
F ob the E ighth Circuit 

No. 18243 
Civil.

Clement S. S mith  and T he A rkansas T eachers A ssocia­
tion, I nc., a non-profit association organized under the 
laws of the State of Arkansas, and Margaret J. Sanders, 
plaintiff-intervenor,

Appellants,
U nited States of A merica, 

— v .—
Intervenor,

T he B oard of E ducation of M orrilton School D istrict 
No. 32; Dr. H. B. W hite, F elver R owell, J ack B land, 
W. 0. B yrd, W illiam W offord, W ylie Cox, Directors of 
the said District; and T erry H umble, Superintendent 
of Schools,

Appellees.

APPEAL FROM ORDER OF THE UNITED STATES DISTRICT COURT FOR 
THE WESTERN DISTRICT OF ARKANSAS, FORT SMITH DIVISION

REPLY BRIEF FOR APPELLANTS

J ohn W * W alker
1304-B Wright Avenue 
Little Rock, Arkansas

H arold A nderson
610 West Ninth Street 
Little Rock, Arkansas

George H oward, Jr.
3291/2 Main Street 
Pine Bluff, Arkansas

J ack Greenberg
J ames M. Nabrit, III
Michael Meltsner

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



Utt!teb States (!Inurt at Appeals
F ob the E ighth Cibcuit 

No. 18243 
Civil

Clement S. S mith  and T he A bkansas T eachebs A ssocia­
tion, I nc., a non-profit association organized under the 
laws of the State of Arkansas, and Maegaeet J. Sandebs, 
plaintiff-intervenor,

Appellants,
U nited States of A mebica,

Intervenor,
—v.—

T he B oabd of E ducation of Mobbilton S chool D istbict 
No. 32; D b. H. B. W hite, F elveb R owell, J ack B land, 
W . 0 . B ybd, W illiam W offobd, W ylie Cox, Directors of 
the said District; and T ebby H umble, Superintendent 
of Schools,

Appellees.

APPEAL FBOM OBDEB OF THE UNITED STATES DISTBICT COUBT FOB 
THE WESTEBN DISTBICT OF ARKANSAS, FOBT SMITH DIVISION

REPLY BRIEF FOR APPELLANTS

I.

Subsequent to the filing of appellants’ brief, the United 
States Court of Appeals for the Fourth Circuit decided a 
Negro teacher dismissal case identical to this in all ma­
terial respects. The board concedes it “ is directly in point” 
(appellee’s brief p. 20). In Franklin v. County School 
Board of Giles County, No. 10,214, decided April 6, 1966,



2

23 Negro school children applied under a choice plan to 
attend the all-white county high school. As a result, the 
school board decided to abandon two Negro schools, and 
notified Negro teachers that their services would not be 
needed after the close of that school year. Later, the 
school board employed eight new teachers, all of whom 
were white.

In a suit brought by discharged teachers and the Vir­
ginia Teachers Association seeking reinstatement of the 
teachers, the superintendent contended that he compared 
the qualifications of the Negro teachers with those of all 
the other 179 teachers in the school system and concluded 
that the Negroes were the least suitable for reemployment. 
But the district court found that he had compared the 
qualifications of the Negro teachers only as to the antici­
pated vacancies. While the district court found that com­
parative evaluation must include all teachers and not just 
new applicants it only ordered the school board to notify 
discharged teachers of any vacancy for which they were 
qualified and “to offer them the opportunity to apply for 
the job in competition with others who might seek employ­
ment.” (Emphasis supplied)

The Court of Appeals for the Fourth Circuit reversed. 
It found that no comparative evaluation of any sort was 
made; that the teachers were discharged because of their 
race in violation of the Fourteenth Amendment and that 
they are entitled to a mandatory injunction requiring their 
reinstatement: “We think the individual plaintiffs are 
entitled to reemployment in any vacancy which occurs for 
which they are qualified by certificate or experience.”

The court in Franklin did not pass on the question of 
whether the teachers were entitled to damages because 
none were sought, but another recent decision of the



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Fourth Circuit, Smith v. Hampton Training Institute, No. 
10,312, decided April 28, 1966, makes clear the court’s view 
that racially discharged teachers are entitled to compen­
sation for denial of their constitutional rights. In Smith, 
three Negro nurses were discharged by a government sub­
sidized hospital after they atempted to eat in the all-white 
hospital cafeteria. The Fourth Circuit, citing its decision 
in Franklin, supra, directed that the nurses be reinstated 
with back pay, in order to “make them whole” and to 
deter racial discharges in the future.

The school board does not mention the decision of the 
Court of Appeals in Franklin but attempts to distinguish 
the district court decision on the ground that displaced 
teachers had been retained in the school system in the past. 
The record here, however, establishes the normal annual 
faculty turnover and assignment practices present in that 
case. Superintendent Humble conceded that vacancies had 
“happened in each other year” (R. 206) and that in the 
past teachers were “ retained” , “ moved”  and “ transferred” 
without having to apply when schools were closed (R. 169, 
170, 212, 213). To be sure he testified that at the time 
the high school was closed there were no vacancies (R. 
170) but the point is that he could not but know that 
vacancies would occur because they had “happened in 
every other year.” His failure to notify the dismissed 
Negroes of their supposed freedom to apply (after he 
dismissed them) for the vacancies which occurred as “ in 
every other year” , his still undenied racial explanation of 
the firing, and his vague, but significant, description of a 
Negro “ speech pattern” and manner of “communication” 
(R. 200, 196-99) speak eloquently of his intentions. That 
the board merely sought to exclude Negro teachers from 
teaching at the “white” school and did not pass any valid 
judgment on their qualifications as teachers is further



4

supported by the fact that all of the Negro high school 
teachers had been notified that they would be rehired prior 
to their dismissal. Thus, the attempts of the Superintend­
ent to cast doubt on the ability of Negro teachers merely 
reflects the different standards which he reveals holding 
with respect to Negro and white pupils. In this respect 
his testimony demonstrates the frame of mind Avhich 
brought about a racial discharge of teachers.

Nor is Franklin distinguishable because the school sys­
tem there had on prior occasions compared the qualifica­
tions of all teachers in the system before dismissal. The 
Fourth Circuit’s conclusion that Negro teachers were dis­
charged racially does not depend on the existence of this 
practice. A  school board may not, consistent with the 
equal protection clause of the Fourteenth Amendment, ad­
minister a desegregation plan to cast the entire burden 
of desegregation on Negro teachers. That Negro teachers 
were discharged because they all taught at the same school 
does not alter this conclusion for they all taught at the 
same school because of the board’s unconstitutional racial 
assignment policies, policies which have been unconstitu­
tional for over a decade. Secondly, the board’s attempt to 
treat this matter as if it were a simple question of school 
closing is not acceptable because Brown v. Board of Educa­
tion placed the obligation to desegregate not on particular 
schools but upon area school authorities which in Arkansas, 
as in other states, means the area school boards. As the 
board is constitutionally responsible it cannot adopt a 
plan for desegregation which burdens solely Negro teach­
ers. The briefs cite numerous cases in which the federal 
courts have consistently rejected desegregation standards 
which, while appearing nonracial, act in an obvious way
to burden Negroes. See also Sellers v. Crook,------F. Supp.
------ , No. 2361-N (M.D. Ala) where a three judge court



5

found a legislative extension of terms of office of county 
commissioners unconstitutional because it freezes into of­
fice persons elected when Negroes were illegally deprived 
of vote even though the extension of terms was not found 
to be racially motivated.

Five pages of the board’s brief consists of a labored 
attempt to suggest that race is a permissible criteria for 
assignment of Negro teachers. Appellants find this at­
tempt inexplicable unless the board is seeking to justify 
to the Court the conceded racial assignment of teachers 
which condemned only Negro teachers to discharge, while 
white teachers retain their jobs even if they had less 
seniority or ability. That race, constitutionally excluded 
as criteria in every area of our public life, may be per­
mitted at this time to infect the assignment or discharge 
of teachers is a proposition too unreal to argue. Such 
matters are closed as litigable issues.1

Appellants’ rights to reinstatement are further sup­
ported by the Revised Statement of Policies for School 
Desegregation Plans under Titile VI of the Civil Rights 
Act (March 1966). These revised guidelines explicitly 
direct themselves to the situation involved in this case.2

1 Bailey v. Patterson, 369 U .S. 31, 33. See for example, Cooper v. Aaron, 
348 U .S . 1 (schools); Goss v. Board of Education, 373 U .S. 683 (pupil 
transfer p la n ); Watson v. City of Memphis, 373 U .S. 526 (public p a rk s); 
Johnson v. Virginia, 373 U .S . 61 (courtrooms); Burton v. Wilmington 
Parking Authority, 365 U .S . 715 (restaurants in public buildings); Peter­
son v. Greenville, 373 U .S . 244 (restaurants); Simkins v. Moses H. Cone 
Memorial Hospital, 323 F .2d 959 (4th Cir. 1963), cert, denied, 376 U .S. 
938 (hospital medical staff and patient admission).

2 The pertinent guidelines state as follow s:
$181.13 Faculty and Staff

(a) Desegregation of Staff. The racial composition of the professional 
staff of a school system, and of the schools in the system, must be con­
sidered in determining whether students are subjected to discrimination 
in educational programs. Each school system is responsible for correcting



6

They provide that in any instance where one or more 
teachers are displaced as a result of desegregation no staff 
vacancy in the school system may be filled through re­
cruitment from outside the system, unless the system can

the effects of all past discriminatory practices in the assignment of teachers 
and other professional staff.

(b) New Assignments. Race, color, or national origin may not be a 
factor in the hiring or assignment to schools or within schools of teachers 
and other professional staff, including student teachers and staff serving 
two or more schools, except to correct the effects of past discriminatory 
assignments.

(c) Dismissals. Teachers and other professional staff may not be dis­
missed, demoted, or passed over for retention, promotion, or rehiring on 
the ground o f race, color, or national origin. In any instance where one 
or more teachers or other professional staff members are to be displaced 
as a result o f desegregation, no staff vacancy in the school system may be 
filled through recruitment from outside the system unless the school officials 
can show that no such displaced staff member is qualified to fill the va­
cancy. I f  as a result of desegregation, there is to be a reduction in the 
total professional staff of the school system, the qualifications of all staff 
members in the system must be evaluated in selecting the staff members 
to be released.

(d) Past Assignments. The pattern of assignment of teachers and other 
professional staff among the various schools of a system may not be such 
that schools are identifiable as intended for students of a particular race, 
color, or national origin, or such that teachers or other professional staff 
of a particular race are concentrated in those schools where all, or the 
majority of, the students are of that race. Each school system has a 
positive duty to make staff assignments and reassignments necessary to 
eliminate past discriminatory assignment patterns. Staff desegregation for  
the 1966-67 school year must include significant progress beyond what was 
accomplished for the 1965-66 school year in the desegregation of teachers 
assigned to schools on a regular full-time basis. Patterns of staff assign­
ment to initiate staff desegregation might include, for example: (1 ) Some 
desegregation of professional staff in each school in the system, (2 ) the 
assignment of a significant portion of the professional staff o f each race 
to particular schools in the system where their race is a minority and 
where special staff training programs are established to help with the 
process of staff desegregation, (3 ) the assignment of a significant portion 
of the staff on a desegregated basis to those schools in which the student 
body is desegregated, (4 ) the reassignment of the staff of schools being 
closed to other schools in the system where their race is a minority, or 
(5 ) an alternative pattern of assignment which will make comparable 
progress in bringing about staff desegregation successfully.



7

show that no displaced staff member is qualified to fill 
the vacancy. If as a result of desegregation, there is a 
reduction in the total professional staff of the system, all 
staff members in the system must be evaluated in selecting 
the staff members to be released. These standards clearly 
apply to require reinstatement of those displaced Negro 
teachers who desire it, all of whom were rehired by the 
board prior to the desegregation and closing of Sullivan 
high school without any evaluation of all staff members 
in the system and have equal or superior qualifications 
to the inexperienced teachers hired by the board. This 
court has stated that the guidelines, while not binding, 
are entitled to great weight, Kemp v. Beasley, 352 F.2d 
14, 18-19 (8th Cir. 1965). They are especially meaningful 
in the area of faculty desegregation for the guidelines 
represent the product of educational expertise and an 
awareness of national patterns of Negro teacher dismissal.3

II.

The school board also urges that the suit cannot he 
prosecuted as a class action, and that the corporate plain­
tiff, the Arkansas Teachers Association, is not a proper 
party. First, it is obvious that Negro teachers in Arkansas 
have a common interest in ending racial dismissal as a 
consequence of pupil desegregation and that their incor­
porated teachers’ association may represent that interest, 
as well as sue in its own right in order to protect its own 
welfare. See appellants’ brief note 1; Franklin v. County 
School Board of Giles County, supra; Buford v. Morgan-

3 Significantly, at least two district courts had fashioned orders com­
parable to the guidelines before the Office of Education adopted them. 
Dowell v. School Board of Oklahoma City, 244 F . Supp. 971, 977-8 (W .D . 
Okla. 1 9 6 5 ); Kier v. County School Board of Augusta County, Va 249 
F . Supp. 239, 247 (W .D . Va. 1966).



8

ton Board of Education, 244 F. Supp. 437, 445 (W.D. N.C. 
1965); cf. NAACP  v. Alabama, 357 U.S. 449, 468-9; Pierce 
v. Society of Sisters, 268 U.S. 510, 535. Significantly, the 
cases cited by the board were decided prior to NAACP 
v. Button, 371 U.S. 415, 428 (1963) which puts beyond 
question the power of the Arkansas Teachers Association 
to sue.

The argument that the interests of Negro teachers 
are antagonistic is without merit. They have a common 
interest in the relief sought here to redress the racial 
dismissal policy of the board. The board also cites cases 
where it was not “ impracticable” to join all persons in 
the class as parties. There are just as many decisions 
holding that similar numbers of persons were sufficient 
to support a class action brought by “ representatives” of 
the class. See e.g., Citizens Banking Co. v. Monticello 
State Bank, 143 F.2d 261 (8th Cir. 1944) (12 note holders 
permitted to represent 28 others in class action). The 
court need not decide the application of Rule 23(a)(3) to 
this suit for the Arkansas Teachers Association (because 
it represents its members) and the United States are 
parties entitled to relief protecting the rights of the 
affected class. The cases and commentators agree, how­
ever, that the test of whether a class action may be brought 
has nothing to do with a “numbers game” , but “ only the 
difficulty or inconvenience of joining all members of the 
class” or the burden caused by litigating the issues in­
volved in a piecemeal fashion by numerous suits. Ad­
vertising Special National Association v. Federal Trade 
Commission, 238 F.2d 108, 119 (1st Cir. 1956). “ The fed­
eral decisions . . . [reflect] a practical judgment on the 
particular facts of the case” 3 Moore’s Federal Practice, 
§2305, p. 3421.



9

It is obviously inconvenient and unnecessary to require 
that all Negro teachers affected be brought before the 
court as party-plaintiffs, especially when all do not wish 
to be named plaintiffs, and clearly burdensome to the 
court to settle piecemeal the legal obligations of the school 
board with respect to Negro teachers. Joinder of named 
plaintiffs is also unnecessary because concededly common 
questions of law and fact are involved as to all Negro 
teachers discharged. If the Court held that appellants 
were entitled to relief because the board had dismissed 
them racially but that they could not maintain a class 
action, the plain consequence of such a ruling would be 
that each and every other Negro teacher dismissed could 
bring an individual suit in the district court alleging the 
racial discharge and praying for reinstatement. They 
would each be clearly entitled to this relief but the dis­
trict court would have to hear separate suits involving 
a repetition of testimony and argument already presented 
to the court. The class action provision of the Federal 
Rules were formulated to avoid such results so obviously 
wasteful of the energy of the judiciary.

While the class action provisions of Rule 23 facilitate 
the presentation of the claims of Negro teachers and would 
save the time of the court, the granting of class relief 
does not prejudice the board in any manner. This is a 
“ spurious” class action brought under Rule 23(a)(3) 
where “the class is formed solely by the presence of a 
common question of law or fact” 3 Moore’s Federal Prac­
tice, §23.10, p. 3443, and “ the judgment binds only the 
original parties of record and those who intervene and 
become parties to the action.” Id. at p. 3456. In addition, 
should relief be granted to named parties the decree, 
regardless of its terms, could not expressly or impliedly 
authorize continued discrimination. See Potts v. Flax, 313



10

F.2d 284, 288-90 (5th Cir. 1963). The class action decree 
is therefore a convenient device for “cleaning up” this 
litigious situation and informing the board of its general 
obligation to Negro teachers.

Respectfully submitted,

J ohn W . W alker
1304-B Wright Avenue 
Little Rock, Arkansas

H arold A nderson
610 West Ninth Street 
Little Rock, Arkansas

George H oward, J r.
329% Main Street 
Pine Bluff, Arkansas

J ack Greenberg
J ames M. Nabrit, III
M ichael Meltsner

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



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