Smith v Morrilton School District BOE Reply Brief for Appellants
Public Court Documents
April 1, 1966

12 pages
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Brief Collection, LDF Court Filings. Smith v Morrilton School District BOE Reply Brief for Appellants, 1966. 19312eb5-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b0740a53-271b-473e-9d67-4ba09f6e3650/smith-v-morrilton-school-district-boe-reply-brief-for-appellants. Accessed July 09, 2025.
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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 3 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 MEILEN PRESS INC. — N. Y. C.