Sweeny Independent School District v. Harkless Brief for Respondents in Opposition

    I n  the

G l m t r t  o f  %  l l m t t b  S t a t e s

October Term, 1977 

No. 77—392

Sweeny I ndependent School D istrict, et al.,

v.

M ildred H arkless, et al.

on petition  for a w rit  oe certiorari to 
the  united  states court of appeals

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

W eldon S. Berry 
711 Main Stret 
Suite 620
Houston, Texas 77002

Jack Greenberg 
James M. N abrit, III 
James C. Gray, Jr.

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Counsel for Respondents
October 1977



I N D E X

STATEMENT OF THE CASE

A. The Proceedings Below On the
Merits 1

B. Procedural History  o f  the
Jur isd ic t ion  Issue 7

ARGUMENT

1. The Record On Appeal Was Adequate
And A Remand On The Merits Un­
necessary 8

2. P l a i n t i f f s '  Or ig ina l Complaint Set
Forth A Cause Of Action Under 42 
U.S.C. §1981 And Justice Required 
That P l a i n t i f f s  Be Al lowed To 
Invoke The Court 's Jur isd ic t ion  
Pursuant To That Statute 13

CONCLUSION 16

Page

Table o f  Authori t ies

Cases:

Campbell v.  Gadsden County D is t .  School
Board, 534 F.2d 650 (5th Cir.  1976) 14

Chambers v.  Hendersonvil le Ci ty Board of
Educ., 364 F .2d 189 (4th C ir .  1966) 10

City o f  Kenosha v.  Bruno, 412 U.S 507 (1973) 7

Conley v .  Gibson, 355 U.S 41 (1957) 15

Foman v.  Davis, 371 U.S 178 (1962) 16



- l i -

Page

Haney v.  County Board o f  Educ. o f
Sevier County, 429 F.2d 364 ( 8th Cir.1970) 11

Harkless v.  Sweeny Independent School 
D i s t . ,  300 F.Supp. 794 (S.D.Tex.
1969) 7

Harkless v.  Sweeny Independent School
D i s t . ,  427 F.2d 319 (5th C ir .  1970) 7

Jackson v.  Wheatley School Dis t.  No.28,
430 F.2d 1359 ( 8th C ir .  1970) 11

Keyes v .  School D is t .  N o . l ,  Denver
Colorado, 413 U.S. 109 (1973) 11

Moore v.  Board o f  Educ. o f  Chidester 
School D i s t . , 448 F.2d 709 ( 8th C ir .
1971) 11

Newberry v . Central o f Georgia Railway, 
276 F.2d 337 (5th C ir. 1921) c e rt, 
den. 257 H.S 662

Jorrii Cara Lina. Teachers Assn. v .  As i c e r c  
C irr  3aam  nr Educ. . 3a 3 F .Id  ~3b 
< —t±i d m  ISftfc) m

h '. r s  - Imrnry I i m  rsi ILfiac* c i  in s e t  '.i
Emnrty, 391 WJ2&A 77 fittSi 'Cir.  U t t )  11

U.S. v.  Je f ferson County Board o f  Educ.,
372 F.2d 836 (5th C ir .  1966) 10

U.S. v .  National Assn, o f  Real Estate ,
Boards, 339 U.S 485 (1950) 11



-11 1 -

Page

V i l l a g e  o f  Ar l ington Heights v.Metro­
po l i tan  Housing Development Corp . ,

_ U.S ____, 95 S.Ct.555, 50 L.Ed.
2d 450 (1977)

Federal  Rules of  C i v i l  Procedure:

Rule 15 

Rule 52

8,9,10

7,13,16

11,12

Sta tutes :

28 U.S.C. §1343

28 U.S.C. §1653

42 U.S.C. §1981

42 U.S.C. §1983

Other Au thor i t ies :

Wright & M i l l e r ,  Federal  P ractice  
and Procedure (1969)

7,8,13,15,16 

7,13,15,16

7 > O t i 4 , b

J*



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1977 
NO. 77 -  392

SWEENY INDEPENDENT SCHOOL DISTRICT, 
et a l .  ,

v.

MILDRED HARKLESS, et a l .

On P e t i t i o n  For a Writ of  C e r t i o ra r i  to 
The United States Court o f  Appeals for  

The F i f th  C ircu i t

BRIEF FOR RESPONDENTS IN OPPOSITION

STATEMENT OF THE CASE 

A. The Proceedings Below On the Merits

This  a c t i o n  was brought in  May o f  1966 by 

twelve black teachers whose contracts with the 

I v  eeu 7 Independent Schoo l  D i s t r i c t  were not 

r s i e s s :  f o r  the 1966-67 sch oo l  y e a r .  Respon­

dents are tew o f  the o r i g i n a l  p l a i n t i f f s ,  the 

remetadrg two having withdrawn p r io r  to the 1' r~ 

dxnsl.  P l a i n t i f f s  sought to br ing  th is  action, as a 

class action on behal f  o f  thews e lves  and the f i v e  

o t t e r  black teachers who were discharged, bet the



-  2 -

D i s t r i c t  Court denied c la s s  a c t i o n  s t a tu s .  

P l a i n t i f f s  charged in  th e i r  complaint that defen­

dants, p e t i t i on e rs  here,  had refused to re ta in  

them because o f  th e i r  race and sought re in s ta te ­

ment, back pay and l o s t  a l low ances ,  and t h e i r  

cos ts  in c lu d in g  reasonab le  a t t o r n e y s '  f e e s .

P r io r  to the 1966-67 school year,  the Sweeny 

Independent  School D i s t r i c t  mainta ined a dual 

school system with r a c i a l l y  i d e n t i f i a b l e  student 

bodies and f a c u l t i e s .  P e t i t ioners  operated four 

w h i t e  schoo ls  and one b lack  s ch oo l .  In  1966, 

pe t i t i on e rs  dismantled this dual school system and 

in  the process determined not to renew the con­

t rac ts  o f  seventeen (17) teachers,  a l l  o f  whom 

were black. In doing so, pe t i t ioners  dismissed on 

the eve o f  desegregation 70% o f  the black facu l ty  

in  the d i s t r i c t .  With the e x c ep t ion  o f  one 

teacher who substituted fo r  a year and a h a l f ,  

respondents had each taught at leas t  f i v e  years in 

the d i s t r i c t  and had on the average  f ou r te en  

years experience with the d i s t r i c t .

At issue in  th is  case was whether the dec i ­

s ion  to d ismiss  7 0% o f  the d i s t r i c t ' s  b lac k 

facu l ty  and re ta in  100% o f  i t s  white faculty  was 

r a c i a l l y  based. In the appea l ,  the D i s t r i c t



Court 's account o f  the actual occurence o f  events 

was not disputed; rather i t s  analysis and in t e r ­

pretat ion  o f  those events were at issue.

The school board had a study prepared which 

showed that twelve (12) fewer teachers would be 

needed fo r  the 1966-67 school year when the system 

would be desegregated. This s t a f f in g  requirements 

study a l l e ged ly  provided the ra t iona le  f o r  d i s ­

cha rg ing  s even teen  (17 )  b lack  t e a c h e r s .  In  

a c tu a l i t y ,  only four fewer teachers were employed 

and the  d i s t r i c t  h i r e d  at l e a s t  s e v en teen  new 

teachers to f i l l  the vacancies l e f t  by the non—re ­

newed hlack teachers and by retained, v inca caacn— 

ars wtlc l e f t  the system. ALL o f  the new caacrters 

h ired  were m i t e .  Ob-4, t—-t-1— . i—i i—ri „ 

The super in tenden t  d in  n e t  retcnnmenc the  

seventeen black teachers f o r  renewal a t  a meeting 

o f  the Board o f  Trustees held on March 8, 1966. 

~e recommended a l l  whites f o r  renewal.  Between 

—■£tch 1 and March 7, three o f  the white pr inc ipals  

and the black p r inc ipa l  prepared the annual Steck 

corn; evaluations o f  th e i r  teachers.  The pr inc ipals  

cct the f i r s t  time also rated the teachers on a 

a rroB "2 to  10". The sup er in t en d en t  and 

i-i - ~. .  .m d i r e c t o r  a lso rated a l l  o f  the teach­

ers ,  including those at the white school where the 

p r inc ipa l  was absent, on this "2 to 10" scale.

-  3 -



-  4 -

At the t r i a l  o f  th i s  m at te r ,  p e t i t i o n e r s  

defended th e i r  dismissal o f  70% o f  th e i r  black 

facu l ty  claiming that i t  resulted from a r a c i a l l y  

neutra l  eva luat ion based on the Steck form/rating 

system by which a l l  the teachers in the d i s t r i c t  

were compared against the i r  counterparts.  The 

Steck form/ratings were due from the pr incipals  on 

March 7, and the recommendations f o r  renewal were 

made the very  next day.

I t  was undisputed, however, that p r io r  to 

the March 8th recommendation to the Bo-are. t i e  

black teachers —  only s ix  o f  who® along wisth m e  

black p r in c ipa l  were re ta ined  —  had beea snotyett­

ed to  two forms o f  " e v a l u a t i o n "  which wh i t e  

teachers did not have to undergo. The superinten­

dent and curriculum d i r e c to r ,  e i th e r  o f  whom could 

contro l  the outcome o f  the o v e ra l l  ra t ing  system, 

also  were the ind iv iduals  who subjected the black 

teachers to th is  spec ia l  treatment.

F i r s t ,  only the black teachers were sub jec t­

ed to an "anecdotal  eva luat ion"  by the curriculum 

d i rec to r  prepared at the request o f  the superinten­

den t .  This  " e v a l u a t i o n "  focused  on p e rso n a l  

cha rac te r i s t i c s  and emphasized r a c i a l  considera­
t ions .  (A-5, A-53).



5

Second, the b lack  teachers  were ranked 

a g a in s t  each o the r  on the bas is  o f  p e r c e i v e d  

competence by the superintendent,  the curriculum 

d i r e c to r  and the black p r inc ipa l .  Of the s ix  black 

teachers retained along with the demoted black 

p r in c ipa l ,  f i v e  o f  them were the teachers ranked 

one to  f i v e  by this  ranking process and the sixth  

was the black p r in c ip a l ' s  w i f e .  The white teachers 

were not ranked against each other.  (A 5-6,A-55) .  

The worksheet upon which this b lack-aga inst-b lack 

ranking was performed shows e ight teachers r e ­

c e i v i n g  f i n a l  s c o r e s .  These e i g h t  ranked from 

one t o  seven w i th  two t i e d  f o r  seventh  p l a c e .  

So at tempt was made to  rank above seven .  Only 

seven black teachers were reh ired .  ( A - 5 ) .

On these  undisputed f a c t s ,  the D i s t r i c t  

Court ru led  in  f a v o r  o f  the d e f en dan ts .  The 

d i s t r i c t  court "reconstructed"  a comparison o f  the 

teachers on a system-wide basis using the ratings 

given by the superintendent, curriculum d i r e c to r  

and various p r inc ipa ls .  Based upon i t s  "recon­

s t r u c t i o n " ,  the D i s t r i c t  Court h e ld  tha t  tha t  

process had been used to se le c t  the teachers who



would not be r e t a i n e d .  (A55-56)  The D i s t r i c t  

Court in  i t s  f i n d in g s  d iscounted  the ev idence  

showing that the Board dismissed f i v e  more teach­

ers than needed according to i t s  a l le ged  requ ire ­

ments study, that only blacks were non-renewed and 

whites were subsequently hired to replace them, 

that only blacks were subjected to the curriculum 

d i r e c t o r ' s  " a n ec d o ta l  e v a l u a t i o n "  and ranked 

against each other f o r  the seven "most competent". 

I t  also discounted the sub jec t iv e  nature o f  the 

o v e ra l l  ra t ing  system and the c lear  a b i l i t y  o f  the 

superintendent and curriculum d i rec to r  to control  

the outcome o f  any comparat ive  r a t in g s  by the 

s cores  they gave ,  which s cores  in f a c t  were 

c o n s id e r a b l y  lower  f o r  the non-renewed b lack  

teachers than those given by the pr inc ipa l who 

worked with them.

The Court o f  Appeals, a f t e r  reviewing the 

r e c o r d ,  r e v e r s e d  as " c l e a r l y  e rroneous"  the 

D i s t r i c t  C o u r t ' s  f i n d in g s  that the employment 

dec isions were based on a d i s t r i c t  wide eonipai i~ 

son using the Steck form evaluations and ovum I! 

r a t i n g s .  The Court o f  Appeals  found Chn ■>.: 

evidence in  the record showed inter-t w u a n  * 

d iscr iminat ion .  (A7, A - l l )

-  6 -



7

B. Procedural History o f  the Jur isd ic t ion  
Issue

In 1966, when this  action was f i l e d ,  p la in ­

t i f f s  invoked the court 's  ju r i s d i c t i o n  pursuant to 

28 U.S.C. §1343, charging a v i o l a t i o n  o f  42 U.S.C. 

§1983. A f te r  a jury t r i a l  which resu lted in a 

l imited  f ind ing in p l a i n t i f f s '  favor ,  the D is t r i c t  

Court,  i n t e r  a l i a , d ism issed  the a c t i o n  f o r  

f a i lu r e  to s ta te  a claim under §1983. 300 F.Supp. 

794 (S .D .  Tex. 1969) .  The Court o f  Appea ls  

r e ve r s ed  the d i s t r i c t  court  on t h i s  and o th e r  

grounds and remanded for  further proceedings. 427 
F.2d 319 (5th Cir .  1970). A f t e r  further  proceed­

ings the case was submitted  t o  the  D i s t r i c t  

Court for  dec ision in June 1972. In June 1973, 

this Court decided City o f  Kenosha v .  Bruno, 412 

U.S. 507 (1973), dea l ing with the scope o f  j u r i s ­

d ic t ion  under §1983. The D i s t r i c t  Court asked the 

part ies  to b r i e f  the e f f e c t  o f  Ci ty o f  Kenosha on 

the ju r i sd i c t i o n a l  issue. P l a i n t i f f s  did so and 

a l s o  moved to  amend t h e i r  compla int  to  a l l e g e  

addit ional  bases o f  ju r i s d i c t i o n .

‘ he D i s t r i c t  Court in i t s  January 1975 

dec is ion denied p l a i n t i f f s '  motion in a l l  respects.  

(A-36) The Court o f  Appeals reversed,  holding 

that in l i gh t  o f  28 U.S.C. §1653 and Rule 15 of



-  8 -

the Federal  Rules o f  C i v i l  Procedure, the t r i a l  

court abused i t s  d isc re t ion  in re fusing to grant 

the por t ion  o f  the motion to amend r e la t in g  to 28 

U.S.C. §1343(4) and 42 U.S.C. §1981. (A.  15).

ARGUMENT

This P e t i t i o n  does not present any issues 

which j u s t i f y  the granting o f  c e r t i o r a r i  under 

Rule 19. There i s  no c la im  o f  a c a n f L i c t  a£ 

c i r c u i t s ,  no issue o f  public  importance jmt to 

p laus ib le  claim that the F i f th  Circuit;  tea '-er 

to f o l l o w  any app l icab le  dec is ion  o f  th is  Court,

1. The Record On Appeal Was Adequate 
And A Remand On The Mer its Un­
necessary

The Court o f  Appeals held that the D i s t r i c t  

Court 's f ind ing  as to  the decision-making process 

was c l e a r l y  erroneous and overturned i t s  conclu­

s ion  tha t  th e re  was no r a c i a l  d i s c r i m i n a t i o n  

against p l a i n t i f f s .  The Court o f  Appeals dec is ion  

applied V i l l a g e  o f  Ar l ing ton  Heights v .  Metropo l i ­

tan Housing Development Corp. . _____  U.S. _____ , 9 5

S.Ct. 555, 50 L.Ed.2d 450 (1977).  P e t i t i on e rs

argue that the Court o f  Appeals should be fau lted  

because i t  appl ied Ar l ing ton  Heights to the record



-  9 -

before  i t ,  instead o f  remanding to the D is t r i c t  

Court fo r  further  consideration. The P e t i t i o n  

does not contend tha t  the Court o f  Appea ls  

in co r r ec t l y  applied Ar l ington Heights , but only 

that the matter should have been remanded. We 

submit that the Court o f  Appeals was correct in 

avoiding s t i l l  another delay in the d ispos i t ion  o f  

this  eleven year old case which was already before  

i t  f o r  the second time.

Pe t i t ione rs  assert the broad proposit ion 

that an appe l la te  court must always remand to the 

the d i s t r i c t  court when an inte rvening dec is ion  

has implications for  reso lv ing  the issue at bar. 

P e t i t i on e rs  r e l y  on three cases where remands 

occurred. In each o f  the cases,  i t  is  apparent 

that the court o f  appeals decided that the d i s t r i c t  

court was in a b e t t e r  pos i t ion  than i t  i t s e l f  to 

take add i t iona l  evidence or arguments or otherwise 

to  consider the issues or questions ra ised.  These 

cases, however, do not stand for  a broad requ ire ­

ment o f  d e f e r r i n g  to  the lower  courts  on a l l  

appl ications o f  intervening law as urged here by 

p e t i t i o n e r s .

The record on appeal was fu l l y  developed and 

the issue o f  whether discriminat ion had occurred



10 -

ex tens ive ly  b r ie fed  and argued.—̂ There were no 

undeveloped facts  or issues that required further 

fa c t - f in d in g  or presentation o f  evidence.

The Court o f  Appeals had no need to remand 

since i t  was in as good a pos i t ion  to analyze the 

evidence as the D i s t r i c t  Court and the D is t r i c t  

Court had been " c l e a r l y  erroneous" in  i t s  past 

analyses.  Reviewing the fac ts  before i t ,  the 

court came to the unanimous conclusion that the 

D i s t r i c t  Court "was c l e a r l y  in error  in  f ind ing 

that no in ten t iona l  r a c ia l  d iscriminat ion occurred 

in the non-renewal o f  p l a i n t i f f s '  teaching con­

trac ts  and in  f ind ing that the Steck Form/overall 

ra t ing  process was the method ac tua l ly  used to 

eva luate the teachers to a r r i v e  at the employment 

dec is ion on March 8 . "  (A. 11)

_1/ The c l ea r  guidance provided by Ar l ington 
Heights in analyzing the record made i t  unneces­
sary  f o r  the Court o f  Appea ls  to  r e l y  on the 
developed case law on teacher dismissals during 
d e s e g r e g a t i o n  in  o rd e r  to  reach th is  c o r r e c t  
r esu l t .  The D i s t r i c t  Court was in c lear  error  in 
i t s  a p p l i c a t i o n  o f  the p r i o r  case law. See, 
U.S. v ,  J e f f e r s o n  County Board o f  Educ. , 372 
F.2d 836 (5th C ir .  1966); Chambers v.  Henderson­
v i l l e  Ci ty Board o f  Educ.,  364 F.2d 189 (4th Cir .  
1966) ;  Worth Carol ina Ttach«r »  A o n ,  v.  Ashboro 
C i t y  Board o f  Educ. .  393 F.2d 736 (4 th  C i r .



11 -

P e t i t i o n e r s '  argument at page 8 o f  t h e i r  

P e t i t i o n  that the appeals court 's  dec is ion under­

mines the i n t e g r i t y  o f  Rule 52 o f  the Fede ra l  

Rules o f  C i v i l  Procedure  i s  based on a f a u l t y  

p rem ise .  P e t i t i o n e r s  quote  from t h i s  C o u r t ' s  

dec is ion in U.S. v.  National Assn, o f  Real Estate 

Boards, 339 U.S. 485 (1950),  to the e f f e c t  that 

f indings o f  fac t  should not be disturbed because 

they might be construed d i f f e r e n t l y ,  unless they 

are c l e a r l y  e rroneous .  The Court o f  Appea ls  

unquestionably found the t r i a l  court to be " c l e a r ­

ly  erroneous". Since th is  basic requirement of  

Rule 52 was met, the dec ision in  no way undermines 

the in t e g r i t y  o f  the Rule.

M oreover ,  the Court o f  Appea ls  d id  not 

d ismiss  e x t e n s i v e  f i n d in g s  made by the t r i a l  

court,  as suggested by p e t i t i o n e r s .  The Court of

\J Cont' d
1968);  Rol fe  v .  County Board o f  Educ. o f  Lincoln 
County , 391 F.2d 77 ( 6th C i r .  1968) ;  Moore v . 
Board o f  Educ. o f  Chidester School D i s t r i c t , 448 
F . 2d 709 ( 8th C ir .  1971); Jackson v .  Wheatley 
School D i s t .  No. 28, 430 F.2d 1359 ( 8 th C i r .
1970) ;  Haney v .  County Board o f  Educ. o f  Sevier 
County, 429 F.2d 364 ( 8th Cir .  1970). See also,  
Keyes  v .  S ch o o l  D i s t .  No. 1 Denver C o lo ra d o , 
413 U.S. 109 (1973).



12

Appeals did not disturb the t r i a l  court 's  f ind­

ings as to the occurrence and de ta i l s  o f  events. 

The t r i a l  court included in i t s  f indings many 

conclusions in te rp re t ing  these events.  The Court 

o f  Appea ls  ove r turned  the D i s t r i c t  C ou r t ' s  

f indings only to the extent that they held that 

the dec is ion not to renew these experienced but 

black teachers was based upon a d is t r i c t -w id e  

comparison and that no in tent iona l  r a c ia l  d is ­

cr imination had occurred -  the ult imate  question
2/posed by the lawsuit.— In l i g h t  o f  the over­

whelming evidence, the Court o f  Appeals found the 

D i s t r i c t  Court 's " f ind ings "  on these ult imate 

questions to be c l e a r l y  erroneous and reversed in 

favor o f  the p l a i n t i f f s  on the merits.

2/ In the appea l ,  respondents  adopted the 
" t r u e  f a c t s "  found by the d i s t r i c t  court but 
chal lenged i t s  in te rp re ta t ion  of  those fac ts .  
Respondents argued that those were tantamount to 
conc lus ions  o f  law and not e n t i t l e d  to  the 
p r o t e c t i o n  o f  Rule 52. The Court o f  Appea ls ,  
however, decided i t  need not address this issue 
since i t  found the t r i a l  court to be erroneous 
under the s t r i c t e r  s tandard .  (A 7 , f o o tn o t e  
6).



13 -

2. P l a i n t i f f s '  Or ig inal Complaint
Set Forth A Cause o f  Action Under 
42 U.S.C. §1981 and Justice Requir­
ed that P l a i n t i f f s  Be Al lowed to 
Invoke the Court 's Jur isd ic t ion  
Pursuant to that Statute

Pe t i t ioners  argue that the Court o f  Appeals 

e r r e d  in  d i r e c t i n g  the t r i a l  cou r t  to  a l l o w  

p l a i n t i f f s '  Motion to Amend. They base the i r  

argument on two contentions: (1 )  that 42 U.S.C.

§1981 is not a ju r i s d i c t i o n a l  s ta tute ,  and (2) 

that §1981 is separate from §1983 and ava i lab le  to 

a narrower c la s s  o f  p l a i n t i f f s .  P e t i t i o n e r s '  

argument, however, apparently overlooks three 

important factors  which the Court o f  Appeals took 

into cons ideration : ( 1) the a p p l i c a b i l i t y  of

§1981 to respondents'  claims, (2)  the in t e r r e l a ­

t ionship between 28 U.S.C. §1343(4) and 42 U.S.C. 

§1981, and (3)  the combined force  o f  Rule 15(a) 

and 28 U.S.C. §1653.

The essence o f  p e t i t i o n e r s '  argument is  that 

p l a i n t i f f s  should be barred from obtain ing f u l l  

r e l i e f  f o r  the d iscriminat ion suf fe red by them in 

1966 because they did not c i t e  42 U.S.C. §1981 in 

th e i r  o r i g in a l  complaint even though they pled and 

proved a v i o l a t i o n  o f  the s ta tute .

In th e i r  o r i g in a l  complaint, p l a i n t i f f s  set 

for th  a l l  the necessary facts  to support a cause



14 -

o f  act ion under 42 U.S.C. §1981. P l a i n t i f f s  have

always claimed that they were denied continued

employment on account o f  th e i r  race. I t  is  true

that "§1981 is ava i lab le  to a much narrower class

o f  po ten t ia l  l i t i g a n t s  than §1983", Campbell v .

Gadsden County D i s t r i c t  School Board, 534 F.2d

650, 654 (5th Cir.  1976), but p l a i n t i f f s  are

without a doubt members o f  that narrower class of

vict ims o f  r a c ia l  discriminat ion. P l a i n t i f f s '

Motion to Amend sought to include this  addit ional
3/cause o f  act ion s ta tu te .— No new a l lega t ions  o f

fac t  or prayers for  r e l i e f  were necessary since

as the Court o f  Appeals stated:

For eleven years p l a i n t i f f s ,  a l l e g ing  
the same f a c t s ,  have sought the same 
r e l i e f  from the same defendants.
(A. 15)

3/ I t  is hornbook law that the ju r i sd i c t i o n  o f  
a f e d e r a l  cour t  may not be d e f ea ted  mere ly  
because the pleadings f a i l  to c i t e  the court to a 
par t icu lar  ju r i s d i c t i o n a l  sta tute.  See Wright & 
M i l l e r ,  Federal  P ract ice  and Procedure (1969) 
§1206, pp. 37-78.

S im i lar ly  the Courts have long held that a 
p l a i n t i f f  is  not required to s ta te  under what law 
he b r ings  h is  a c t i o n  but only  to p lead  f a c t s  
which under any law e n t i t l e  him to  r e c o v e r .  
Newberry v.  Central o f  Georgia Railway, 276 F.2d. 
337 (5 th  C i r .  1921) c e r t .  den. 257 U.S. 662.



15

In a comparable s i tua t ion ,  this  Court has stated:

F o l l o w in g  the s imple  guide o f  Rule 
8 ( f )  tha t  " a l l  p l ea d in g s  s h a l l  be so 
construed as to do substantia l  j u s t i c e , "  
we have no doubt tha t  p e t i t i o n e r s *  
complaint adequately set for th  a claim 
and gave the respondents f a i r  not ice  of  
i t s  b a s i s .  The F e d e ra l  Rules r e j e c t  
the approach tha t  p l e a d in g  i s  a game 
o f  s k i l l  in which one misstep by counsel 
may be d e c i s i v e  to  the outcome and 
accept the p r in c ip le  that the purpose o f  
p l e a d in g  i s  to  f a c i l i t a t e  a proper  
dec is ion on the mer i ts " .

Conley v .  Gibson, 355 U.S. 41,48 (1957).  From 

the commencement o f  this  ac tion,  the par t ies  and 

the D i s t r i c t  Court have known that i t  was a suit  

to remedy employment d iscriminat ion on account of  

race.

The purpose o f  28 U.S.C. §1653 is to al low 

the curing o f  d e f e c t i v e  a l l e ga t ions  o f  ju r i s d i c ­

t i o n .  While  §1981 i s  not a j u r i s d i c t i o n a l  

sta tute  in the s t r i c t e s t  sense, i t  is  as a cause 

o f  a c t i o n  s t a t u t e  a n ecessary  component o f  

assert ing  ju r i s d i c t i o n  under 28 U.S.C. §1343 ( 4 ) .  

Moreover, assert ing  a cause o f  act ion under §1981 

a f f e c t s  the c o u r t ' s  j u r i s d i c t i o n  to  grant  a 

remedy. The Court o f  Appeals properly  recognized 

the ju r i s d i c t i o n a l  nature of  §1981, pa r t i cu la r l y



16 -

in combination with §1343(4) . I t  was correct in 

applying §1653 to the s i tua t ion  at bar.

The Court o f  Appeals also found Rule 15(a) 

o f  the Federal Rules o f  C i v i l  Procedure to  be 

applicable  to  the instant matter.  Under Rule

15(a)  alone, p l a i n t i f f s '  motion should have been 

granted. In the instant case, the p reva i l ing  

l e ga l  authority at the time o f  f i l i n g  was that 

adequate j u r i s d i c t i o n  e x i s t e d  under §1983 to 

grant  a l l  the requ es ted  r e l i e f .  I t  was seven 

years a f t e r  th is  suit  was f i l e d  that the defec t 

became known. The mandate o f  Rule 15(a) that 

l e a v e  to  amend "should  be f r e e l y  g i v en  when 

ju s t i c e  so requ ires "  is  to be heeded. Foman v . 

Dav is , 371 U.S. 178, 182 (1962).  In the instant 

matter,  ju s t i c e  c l ea r ly  required that p l a i n t i f f s  

who were vict ims o f  employment discr iminat ion be 

al lowed to invoke the f u l l  ju r i s id c t ion  o f  the 

d i s t r i c t  court to obtain the remedies they had 

been praying f o r  since 1966.

CONCLUSION

For the foregoing reasons, the P e t i t i o n  fo r  a



17

Writ of  C e r t i o ra r i  should be denied.

Respect fu l ly  submitted,

WELDON S. BERRY 
711 Main Street 
Suite 620
Houston, Texas 77002

JACK GREENBERG 
JAMES M. NABRIT, I I I  
JAMES C. GRAY, JR.

10 Columbus C irc le  
Suite 2030
New York, New York 10019

Counsel for  Respondents



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