Reply Brief of Defendants-Appellants - Answer Brief 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, 
FT 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 for Defendants- 
Appellants, Cross Appellees 

a A, mee 



IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIPTH CIRCUIT 

NO,. 75-1993 

WITT CAMPBELL, 
Plaintiff-Appellee 

Cross Appellant 

versus 

GADSDEN COUNTY DISTRICT SCHOOL BOARD, 
BT -AL,, ETC., 

Defendants-Appellants 
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 I. Ramsey, Sr., 

Randolph Greene, as members 
of the Gadsden County 
Board of Ecuation 

= T. 7. 



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 

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

ARGUMENT-CROSS APPEAL 

\% The District Court Did Not Err In Finding 
That Defendants Did Not Practice a Pattern 

of Racial Discrimination. 

vi T™e District Court Did Not Err in Not 
Awarding the Plaintiff Back Pay and 
Other Equitable Monetary Relief. 10 



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 Pr. 2d 1268, 1272 (5th Cir., 1973) 4, 6 

Donaldson v. O'Connor, 493 PFP.24d 507 (5th Cir, 
1974) 7; 10 

Edelman v, Jordan, 94 8.Ct. 1347, 39 1.24.24 
662 (1974) 10 

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

Jones v. Jefferson County Board of Education, 
359 P. 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 FP. Supp 1064, 1065 (D.C. 
E.D. Wisc., 1974) 2 

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

Singleton v. Jackson County Municipal School 
District, 419 7.24 1211 (5th Cir., 1970) 3, 4, 6 

Smyl, Inc. v. Gerstein, . 364 FP. 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 

ii 



OTHER CITATIONS 

28 U.S.C., Section 1331 
28 U.8.C., :8ection. 1343 
42 U.5.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. 

iid 

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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, 

iv 



IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE PIPTH 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.8.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.S8.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.24 799 (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. Wisc., 1974) and the cases cited therein. 

Such action against the Invi dus) 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 

{b.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. 



11 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 :schoolivear (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. 



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 render=d there was 

a great deal of confusion on the part of School Boaxds and 

Administrators as to what was required of them. Bassett v. 

Atlantic Independent School District, 485 P.24 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. 

le 



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 School District, 

435° 'P.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. 

- 



JI11 

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 theis representative and/or official capacities 

when they have acted in good faith and non-discriminatorily. 

Smvl, Inc. v. Gerstein, 364 F.Supp. 1302, 1310 (S.D. Pla., 1973). 

Adamias v, University of Nevada, 359 F.Supp. 825 (D.C. Nev. 

1973) Donaldson v. O'Connor, 493 ¥.24 507 (5th Cir., 1974). 



CROSS APPEAL 

Vv 

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) 

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 disgruntiled employee whose 

discontent stems from a cause other than racial discrimination. 



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 hack pay to the Plaintiff (App. 16) and cited 

Edelman v. Jordan, 94 S.Ct. 1347, 39L.EA. 24 662 (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.24 507 

(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. 

-10- 



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; Sach Gretnbers, 10 Co LunDus Circle, 

New York, N. Y.; Jack Gray, 10 Columbus Circle, New York, 

N.Y.; and Richard Gardner, The Quincy tate Bank Building, 

Quincy, Florida, this EY day of September, 1975. 

LAW OFFICES OF BRIAN T. HAYES 

Post Office Box 1385 
Tallahassee, Florida 

ATTORNEY FOR DEFENDANTS-APPELLANTS 

CROSS APPELLEES. 

BY: 

RIAN T. "HAYES 



A. B., LETTER SERVICE, INC. 

327 RUE CHARTRES 
NEW ORLEANS, LOUISIANA 70130