Franklin v. Giles County, VA School Board Brief and Appendix on Behalf of Appellant

    BRIEF AND APPENDIX ON BEHALF OF APPELLANT

IN  TH E

United States Court of Appeals 
for the Fourth Circuit

No. 10,214

MARY A. FRANKLIN, et a l ,
Appellants,

v.

COUNTY SCHOOL BOARD OF GILES COUNTY, 
VIRGINIA, ETAL,

Appellees.

On Appeal from the United States District Court 
for the Western District of Virginia

S. W. T ucker 
H enry L. M arsh, II I  

214 East Clay Street 
Richmond, Virginia 23219 

Attorneys for Appellants



Page

St a t e m e n t  of  t h e  C a s e .......................................................................................  1

T h e  Q u e s t io n  P r e s e n t e d ................................................................................ 3i

St a t e m e n t  o f  F a c t s ..............................................................................................  3

A. The Dismissal of Plaintiffs..................................... - ................  3

B. The Hiring of New Teachers.................................................. 4

A r g u m e n t  ............................................................................................ 10

I. The Pleadings and the Evidence Require A Finding That 
Plaintiffs Were Denied Re-employment Solely Because of 
Their Race........................... -..................................................  10

II. Nothing Short of Reinstatement Will Redress the Depriva­
tion of the Plaintiffs’ Constitutional Rights...............................  12

C o n c l u s io n ............................................................................................................... 15

TABLE OF CITATIONS

Cases

Corbin v. County School Board, 177 F. 924 (4th Cir. 1949) .........  13

Griffin v. County School Board of Prince Edward County, 377 U.S.
218..................................................................................................  14

State ex. rel. Anderson v. Brand, 303 U.S. 95 (1938) ..................... 14

Todd v. Joint Apprenticeship Committee of the Steel Workers of 
Chicago, 223 F. Supp. 12 (N.D. 111. 1963) ................................  14

Watson v. Burnett, 216 Ind. 216, 23 N.E. (2d) 420 (1939) ........... 14

Wieman v. Updegraff, 344 U.S. 183 (1952) ......................................  14

TABLE OF CONTENTS



Page

28 United States Code 1343 ...............................................................  13

29 United States Code 160 ........................... .......... ..... ........... .......  15

42 United States Code 1983 ........................................................ ..... . 12

Civil Rights Act of 1964, Section 604 ..................................... ..........  15

Civil Rights Act of 1964, Section 706 .......................... ...................  15

INDEX TO APPENDIX

Complaint.......................   1

Request for Admissions..............................................................   7

Answer to Request for Admissions ...................................................  8

Excerpts from Transcript of Trial Proceedings.......................... .....  9

Plaintiffs’ Exhibit No. 4 ..................................................... ...............  13

Plaintiffs’ Exhibit No. 5 ...........    14

Plaintiffs’ Exhibit No. 6 ........................... ............................... .........  21

Plaintiffs’ Exhibit No. 7 ......... ................................. .................. .......  23

Statement of Position of Plaintiffs .................................................. . 24

Opinion of District Court .................................................................  25

Order of District Court..... ......... ........... .................................. .........  37

Notice of Appeal.... ............................................................................  39

Other Authorities



IN  THE

United States Court of Appeals 
for the Fourth Circuit

No. 10,214

MARY A. FRANKLIN, e t  a l .,

v.

Appellants,

COUNTY SCHOOL BOARD OF GILES COUNTY, 
VIRGINIA, ET AL.,

Appellees.

On Appeal from the United States District Court 
for the Western District of Virginia

BRIEF ON BEHALF OF THE APPELLANTS

STATEMENT OF THE CASE

This litigation was commenced on July 29, 1964, by the 
complaint of the seven Negro teachers who, until the close 
of the 1963-64 school session, had constituted the faculties 
of the Negro elementary and high schools of Giles County, 
Virigina, which schools were then and thereafter to be 
terminated. Joined as plaintiff, and seeking relief on behalf 
of its constituents, was the Virginia Teachers Association, 
Incorporated, which is composed of those members of the 
teaching profession residing in the State of Virginia who 
are Negroes. Alleging that the defendants, the County



2

School Board of Giles County and its Division Superin­
tendent of Schools, had elected to dispense with the services 
of the plaintiff teachers solely because of their race, the 
individual plaintiffs sought a mandate requiring their rein­
statement as teachers in the public school system of Giles 
County during the 1964-65 session and other and general 
relief.

The defendants’ motion for summary judgment and mo­
tion to dismiss, filed on August 3, were denied at a pre-trial 
conference held on October 3, 1964. The case was heard on 
its merits on December 28, 1964, and, in response to the 
request of the Court, counsel for the respective parties filed 
briefs on February 15, and presented oral argument on 
M arch 11, 1965. On June 7, the District Judge filed his 
opinion dated June 3, 1965, finding that the action of the 
Superintendent “deprived these teachers of their rights 
under the Fourteenth Amendment.” By a “Statement of 
Position of Plaintiffs” filed on June 22, counsel urged that 
“the Court should place these plaintiffs as nearly as possible 
in the position they would have held but for the School 
Board’s unconstitutional action” and that “ [ijnasmuch as 
the normal relief would be reinstatement, the burden should 
be placed on the defendants to demonstrate that such relief 
should not now be given.” (App. 25.)

The order of the District Court, entered June 23, 1965, 
does not direct the reinstatement of the plaintiff teachers 
or afford them any certainty that they or any of them will 
ever again be employed as teachers in the Giles County 
school system. Relief to them as individuals was limited to 
an assurance of an opportunity to make application for 
any teaching position which may become vacant during 
the next two years and the further opportunity, in this 
action, to obtain judicial review of the Superintendent’s 
decision with respect to the several applications for such 
position. (App. 38.)



3

On July 23, 1965, the plaintiffs filed notice of their appeal 
to this Court from the order of the District Court insofar 
as it fails to require the school board to employ the individ­
ual plaintiffs as teachers in the public school system of Giles 
County, Virginia. (App. 40.)

THE QUESTION PRESENTED

Does the “Act To Enforce The Provisions Of The Four­
teenth Amendment” contemplate the reinstatement of a 
teacher whom the school board refused to reemploy solely 
because of race?

STATEMENT OF FACTS 

A. The Dismissal of Plaintiffs

As the 1963-64 school session drew to a close, all of Giles 
County’s approximately 125 Negro children of public school 
age were attending the Bluff City Elementary School or the 
Bluff City High School, the faculties of which consisted of 
the seven individual plaintiff teachers. Never had Negro 
children attended public school with white children; neither 
had any Negro been employed to teach white children in 
the public schools.

However, between M arch 15 and April 30, 1964, twenty- 
three Negro children had made application to the state’s 
Pupil Placement Board that they be assigned to the Giles 
County High School. Thus faced with the ominous prospect 
that white and colored children would attend the same 
school, the School Board at its meeting of May 5, 1964, 
ordered the discontinuance of the Bluff City schools for 
Negroes and directed the Division Superintendent to notify 
each of the seven Negro teachers that his services would 
not be needed after the close of the 1963-64 session.

The discontinuance of one or more public schools was 
not a new experience. But the abrupt termination of the



4

employment of the teachers at a school so discontinued was 
without precedent. These facts and their significance are 
discussed in the opinion of the District Court, viz.:

“ [T ]he record shows that on a number of occasions 
throughout the period preceding the closing of the Negro 
schools consolidations of white schools were carried out and 
in each instance the white teachers whose schools had been 
closed were retained in the school system. The earlied aban­
donments indicate to me that the Superintendent had fol­
lowed a policy of using teachers from the abandoned schools 
in other schools in the system because he viewed the system 
as basically homogeneous, by which I mean that in normal 
circumstances he would transfer teachers between the var­
ious schools to suit the needs of the system rather than con­
sidering the teachers in the abandoned schools as unem­
ployed and potentially available for any openings that might 
occur in the other schools. There are other indications of 
this policy in the record. Teachers have been shifted from 
school to school when and as needed. This system of shifting 
faculty personnel must have been used widely in the school 
years immediately prior to and following the 1962-63 school 
year when thirteen elementary teachers were eliminated 
to remedy the overstaffing in the elementary schools which 
had resulted from the series of consolidations. In order to 
adjust to an overstaffed condition and then to readjust fol­
lowing the elimination of that problem the system and the 
faculty must have had a great deal of flexibility in assign­
ments.” (App. 30.)

B. The Hiring of New Teachers

At least four elementary teachers, three high school 
teachers of English and/or Social Sciences, and one high 
school science teacher were employed effective with the 
commencement of the 1964-65 session. All of these new



5

employees were white. The qualifications of six of these 
newly employed teachers and the contrasting qualifications 
of the seven plaintiff teachers, as revealed by the evidence, 
will be next shown.

Carolyn Chaffin Johnston, race white, age 25, was em­
ployed in September, 1964 to teach the third grade. She 
was not a college graduate and had no previous teaching 
experience. She merely held a Special License, having been 
certified by the State Board to teach specific area subjects. 
(App. 14, PL Ex. 5.) Concerning her, the Superintendent 
testified:

“Carolyn Johnston did her practice teaching at Pearis- 
burg Elementary School in the immediate preceding 
school year 1963-64. At the time she made applica­
tion she listed that she would be a graduate from 
Radford College in the summer of 1964. I, as I recall, 
had interviewed her as I had interviewed a number 
of teachers previous to the actual close of the Negro 
schools and had made a commitment to Carolyn 
Johnston for employment. The observation of her 
principal, her supervising teacher and my supervisor 
indicated that she would be a very good teacher. . . . 
She is listed as not a graduate because she had dif­
ficulty with biology, a subject that is not at all kin 
to the elementary work she is teaching. She ended up 
with passing biology but she ended up with not
enough quality points to be a graduate.

*  * 1 *

“. . . I made a commitment to this lady for employ­
ment.

*  *  *

“ [T ]he lady was at work two weeks before I knew 
she wasn’t a college graduate when I got into the
matter of getting a certificate for her.” (Tr. 66, 67.)

*  *  *



6

“We made commitments for employment when we 
believed that she would be a degreed person.” (Tr. 
92.)

By way of contrast, the evidence (A. 13, PI. Ex. 4) shows 
that each of the individual plaintiffs had a Collegiate Pro­
fessional Certificate, four of them being endorsed for Ele­
mentary Education, and that the teaching experience of the 
four having Elementary Education ranged from four to 
forty years.

Dorothy Harvey, race white, age 23, was employed in 
September, 1964, to teach the third grade. She held a 
Collegiate Professional Certificate endorsed for History and 
English, and had no previous teaching experience. (App. 14, 
PI. Ex. 5.) Concerning her, the Superintendent testified:

“Mrs. Dorothy Harvey had been promised work in 
January of 1964.

* * *

“I made a commitment to her. I finally did not place 
her in the area of certification but in an area in which
she is doing a satisfactory job.” (Tr. 90, 91.)

*  *  *

“The understanding that I had with Mrs. Harvey was 
that she would be considered for such vacancies as 
occurred.” (Tr. 99.)

Four of the plaintiffs had Collegiate Professional Cer­
tificates endorsed for Elementary Education and had pre­
vious teaching experiences which ranged from four to forty 
years. Moreover, the plaintiff Sylvia J. Harvey, whose Col­
legiate Professional Certificate was endorsed for Social 
Science had five years’ experience and the plaintiff, Spivey, 
whose Collegiate Professional Certificate was endorsed for 
Business Education and Social Studies, had completed one



7

year of employment in the system when Dorothy Harvey 
was employed. (App. 13, PI. Ex. 4.)

Grover DeHart, race white, age 30, sex male, was em­
ployed in September 1964 to teach the seventh grade. He 
had no previous teaching experience and did not hold a 
Collegiate Professional Certificate. His Collegiate Certifi­
cate was endorsed for Elementary Education, Sixth and 
Seventh Grades. (App. 14, PI. Ex. 5.) The Superintendent 
testified:

“Grover DeHart has lived all the time in the county 
and a former employee of industry who made himself 
available early in the school year of 1963-64, went to 
summer school and is well qualified in his area of in­
struction having been a personnel—having worked with 
personnel with a major in sociology.” (Tr. 92.)

The vacancy which Grover DeHart was employed to fill 
would not have occurred except for the decision not to re­
employ any of the seven Negro teachers, four of whom had 
objective qualifications for teaching elementary education 
which were superior to those of Grover DeHart.

Nancy Morgan, race white, age 33, was employed in 
September 1964 to teach the first grade. She held a Col­
legiate Professional Certificate, the subject endorsement 
on which was Art. She had had two years’ previous teaching 
experience. (App. 14, PI. Ex. 5.) The Superintendent testi­
fied:

“Nancy’s Morgan’s home has always been in Narrows. 
Her teaching experience has been in eastern Virginia 
and I am not certain whether it was in the City of 
Norfolk, Norfolk County, or Princess Anne. She had the 
misfortune of having her home broken up and she came 
home. She wanted an assignment the previous school 
year but I had none for her.” (Tr. 77, 78.)

*  *  *



8

“Mrs. Nancy Morgan although she was certified in art 
had done all of her teaching in eastern Virginia as a 
primary teacher in the area in which I placed her. I had 
made a commitment to her as early as July in the pre­
vious year but did not find a job for her the previous 
year and she served as a substitute during that year, the 
year previous to this year.” (Tr. 91.)

No objective consideration was suggested for withholding 
preference for this position from either of the four Negro 
teachers who were certified in Elementary Education and 
who had teaching experience which ranged from four to 
forty years. (App. 13, PL Ex. 4.)

Ann Shelton, race white, age 43, was employed in Sep­
tember 1964 to teach English at Giles High School. She had 
three years’ previous experience. Her Collegiate Professional 
Certificate was endorsed for English, History, Social Studies 
and Latin. (App. 22, PI. Ex. 6.) As to her the Superin­
tendent testified:

“Mrs. Ann Shelton had not worked under my super­
vision. She had done extensive substitute work in my 
period of time in the county and had been promised an 
assignment. I might mention that she and her husband 
had run a variety store and they had made the decision 
to close the business and it made her available for sub­
stitute and full time teaching.” (Tr. 89.)

The plaintiff Franklin was certified in English and Social 
Science in high school and had forty years’ teaching 
experience. The plaintiff Leftwich was certified in English 
and had eighteen years’ experience which included the 
teaching of English in Giles County. The plaintiff Woodliff 
was certified in English and had four years’ teaching ex­
perience which included the teaching of English in Giles 
County. (App. 13, PI. Ex. 4.)



9

Helen Blankenship, race white, age 23, was employed in 
September 1964 to teach Mathematics and General Science 
in the eighth grade at Narrows High School. Her Collegiate 
Professional Certificate was endorsed for Biology and Chem­
istry. She had no previous teaching experience. (App. 24, 
PI. Ex. 7.) The Superintendent had this to say concerning 
her:

“I feel that in fairness since I was questioned about 
Helen Blankenship that I would like to make a state­
ment about her status. I committed myself to her as 
early as last January but actually she was placed the 
day before school opened after a principal at Narrows 
High School resigned and after it was necessary for me 
to reshuffle my faculty there and I had no math person 
at that time who was available. She was certified in 
Science. She was a graduate of Narrows High School 
and as a student had done an outstanding job in math. 
We had no hesitancy that she would not do a good job 
in m ath.” (Tr. 71.)

*  *  *

“Her mother is a teacher.
* * *

“She is not certified in mathematics.
*  *  *

“She is teaching eighth grade general math which is
arithmetic.” (Tr. 77.)

Two of the seven Negro teachers (Leftwich and Woodliff) 
were teaching Mathematics when the School Board decided 
not to reemploy them. Two others (Montgomery and 
Austin) had certification similar to that of Helen Blanken­
ship and, in addition, had eight years’ and three years’ teach­
ing experience, respectively. (App. 13, PL Ex. 4.) The fail­
ure to retain the Negro teachers (as earlier the thirteen white 
elementary teachers had been retained (Tr. 72-77, 102-



10

103)) created the occasion for the last minute employment 
of Helen Blankenship.

ARGUMENT

I
The Pleadings And The Evidence Require A Finding That Plaintiffs 

Were Denied Re-employment Solely Because Of Their Race

The District Court erroneously perceived the question 
before it as being whether, in reaching the conclusion that 
the seven Negro teachers were less suitable for re-employ­
ment than any of the 179 white teachers, “the Superintend­
ent exercised his discretion in such an arbitrary, capricious or 
unlawful manner as to violate these teachers’ rights under 
the Fourteenth Amendment.” (App. 29, 30.) By considering 
that as the question (and painstakingly concluding “that the 
scope and nature of the Superintendent’s evaluation of these 
teachers was arbitrary and resulted in a discrimination 
against them” (App. 31 )), the District Court avoided de­
cision of the factual issue tendered by the pleadings which, 
at the outset of the opinion, had been correctly assessed, 
viz.: “The gist of the complaint is the allegation that the 
seven individual plaintiffs were denied re-employment as 
teachers by the defendants for the 1964-65 school session 
because of their race.” (App. 26.)

Neither by their motion to dismiss nor by their answer 
did the defendants suggest that the Superintendent made any 
evaluation of the plaintiff teachers at any time. The District 
Court’s opinion (App. 31) notes that “the Superintendent 
did not explain why these teachers were not evaluated and 
compared with all of the other teachers in the system who 
taught in areas in which the plaintiffs could teach in ac­
cordance with his prior practice in making these decisions.” 
Further, there was “evidence offered by the plaintiffs that



11

in fact there never was a real evaluation of teaching qualifi­
cations and that in deciding to discharge all seven of these 
teachers the Superintendent considered only the closing of 
the Negro schools.” The opinion continues: “There is evi­
dence from which such a conclusion could be inferred. The 
letter sent to the individual plaintiffs refers solely to the abo­
lition of their jobs because of the closing of the Bluff City 
schools without any reference to an evaluation or to any 
possibility that they could be employed in the previously 
all-white schools.” (App. 31, 32.)

To avoid meeting the crucial factual issue in the case, 
the District Court undertook to discuss the adequacy of an 
“evaluation” which the pleadings do not mention and which, 
according to the evidence, simply did not occur.

The allegation of Paragraph 12 of the Complaint that 
“ [t]he defendants elected to dispense with the services of 
[the individual plaintiffs] . . . solely because they are 
Negroes . . .” (App. 5), although formally denied in the 
answer, was clearly established. The affidavit of the Super­
intendent of Schools, filed August 19, 1964 in support of the 
defendants’ motion for summary judgment, concludes in 
these words:

“When the relatively few Negro children being taught 
by these plaintiffs in separate schools were assigned to 
the previously all-white schools, availability of teaching 
positions for the plaintiffs no longer existed in a school 
system which has been employing fewer teachers each 
year for the past five years.” (App. R. 11.)

The plaintiffs’ request for admissions established that on 
May 15, 1964, the Superintendent of Schools notified each 
of these teachers that the closing of the Bluff City schools 
and the placement of the Negro children in other schools



12

“make it necessary to abolish your job.” The letters of 
notification concluded with these words: “May I take this 
opportunity to thank you for the years of service rendered 
the School Board of Giles County and the children of your 
race.” (App. 7.)

The opinion of the District Court points out that, in view 
of the Superintendent’s awareness that there would be 
vacancies for the 1964-65 session, “his abrupt termination 
of the employment of these plaintiffs is suspect. It certainly 
must be contrasted with the termination of the thirteen 
white elementary teachers in 1962-63 who defendants stated 
in their brief then formed a ‘pool’ against future needs. 
* * * It does appear that several of the individual plaintiffs 
were better qualified considering only their certification and 
experience than some of the people who were subsequently 
hired.” (App. 32.)

The complaint and the evidence require the unequivocal 
statement of an unavoidable finding of fact, viz.: that the 
defendant School Board terminated the employment of 
the plaintiff teachers and declined to reemploy them in the 
Giles County school system solely because of race and 
color. It is that actual occurrence (not the imagined but 
nonexistent “evaluation” ) which the Court is called upon 
to redress.

II

Nothing Short Of Reinstatement Will Redress The Deprivation Of 
The Plaintiffs’ Constitutional Right

Unquestionably, a state may not refuse to employ any 
individual solely because of his race. The District Court’s 
opinion observed that “ [t]he defendants, while denying 
that they discriminated against these individuals, acknowl­
edge that the Fourteenth Amendment to the Constitution 
of the United States forbids discrimination on account of



13

race by a public school system with respect to the employ­
ment of teachers.” (App. 26, 27.) If, as has been shown, the 
School Board did in fact refuse to re-employ the plaintiff 
teachers solely because of their race, then the only question 
of law confronting the Court is the measure of relief to 
which they are entitled.

When, in 1871, the Congress passed “An Act to Enforce 
the Provisions of the Fourteenth Amendment to the Con­
stitution of the United States” (42 U.S.C. 1983), it ordained 
that if a person under color of state law, custom or usage 
subjected any person to the deprivation of rights, privileges 
and immunities secured by the Constitution, the person so 
offending shall be liable to the party injured in a “proper 
proceeding for redress.” The district courts have original 
jurisdiction to “redress the deprivation” under color of 
state law, custom and usage, of any right, privilege or im­
munity secured by the Constitution (28 U.S.C. 1343). This 
Court has succinctly stated the intent of the Congress, viz.: 
“Whenever the forbidden racial discrimination rears its 
head, a solemn duty to strike it down is imposed upon the 
Court” (Corbin v. County School Board, 111 F. 924, 928 
(4th Cir. 1949)).

Forbidden racial discrimination reared its head in the 
Giles County school system on May 14, 1964, when the 
School Board decided to dispense with the services of the 
seven Negro teachers pursuant to its custom which pre­
cluded the employment of Negroes as teachers for white 
children. Because she is a Negro, the plaintiff Franklin, a 
resident of Pearisburg in Giles County, must travel to 
Bedford County (at least 75 miles) for professional em­
ployment (Tr. 4, 6). Because they are Negroes the other 
plaintiffs are denied professional employment in Giles 
County. That forbidden racial discrimination continues be­
cause the District Court failed to grant the only relief by



14

which the deprivation of the plaintiffs’ rights could be 
effectively redressed.

The propriety of a mandatory injunction directing rein­
statement of a teacher whose statutory protection against 
the denial of re-employment was breached is discussed in 
Watson v. Burnett, 216 Ind. 216, 23 N.E. (2d) 420 (1939). 
There, as here, the invasion of the right would not sustain 
an action for compensatory damages. There the court stated 
and followed the rule which has been applicable in this 
case ever since August 19, 1964, when the defendants filed 
the affidavit of the Superintendent of schools (R. 10) in­
dicating that availability of teaching positions for Negroes 
ceased to exist upon the assignment of the Negro children 
to previously all white schools, viz.:

“Where the rights of a party are clear and where ac­
tion rather than inaction is essential to maintain the 
status quo of the parties and to avoid irreparable in­
jury, a court of equity may properly issue a temporary 
mandatory injunction.” (23 N.E. (2d) at 424)

In State ex rel Anderson v. Brand, 303 U.S. 95 (1938) 
the Supreme Court reviewed the Indiana court’s refusal of 
a writ of mandamus to compel reinstatement of a teacher 
and held that the repeal of the Teacher’s Tenure Law was 
an unconstitutional impairment of the obligation of con­
tracts. In Wieman v. Updegraff, 344 U.S. 183 (1952), the 
Court reversed the denial of the school teachers’ prayer for 
a mandatory injunction directing state officers to pay their 
salaries notwithstanding the teachers’ failure to take a 
loyalty oath, the Court having determined that the require­
ment of such oath violated Fourteenth Amendment rights. In 
Todd  v. Joint Apprenticeship Committee of the Steel 
Workers of Chicago, 223 F. Supp. 12 (N.D. 111. 1963), a



15

mandatory injunction issued to require that Negroes be 
admitted to an apprenticeship program and be employed, 
the court having found that governmental involvement in 
their exclusion brought the plaintiffs within the protection 
of the Fifth and Fourteenth Amendments.

In recent years the Congress has directed that persons 
wrongfully discharged from employment in certain indus­
tries be reinstated. See 29 U.S.C. § 160(c), authorizing the 
National Labor Relations Board “to take such affirmative 
action including reinstatement of employees with or with­
out back pay, as will effectuate the policies” of Subchapter 
II of the Labor Managament Relations Act. See also the 
Civil Rights Act of 1964, Section 706 (42 U.S.C. § 2000 
e-5 (g))> where judicial authority to order reinstatement 
is preserved if the individual was “expelled or was refused 
employment or advancement . . .  on account of race, color, 
religion, sex or national origin.”

If ever there was justification for reluctance on the part 
of a Federal court to enter a mandatory injunction when 
nothing else would effectively redress the deprivation of 
rights secured by the Constitution, that justification ceased 
to exist when the Supreme Court delivered its May 25, 1964, 
opinion in Griffin v. County School Board of Prince Edward 
County, 377 U.S. 218.

CONCLUSION

It is fairly predictable that as more and more school 
boards adopt “freedom of choice” plans for racial desegre­
gation in efforts to satisfy the requirements of the Depart­
ment of Health, Education and Welfare, an increasing 
number of localities will be faced with the transfer of Negro 
children from all-Negro schools. By virtue of Section 604 
of the Civil Rights Act of 1964, the Department of Health,



16

Education and Welfare considers itself powerless to pro­
tect Negro teachers against unwarranted loss of employ­
ment upon the desegregation of students. Any failure of 
the federal courts to effectively curb racial discrimination 
in the employment policies of school boards, as and when 
the children obtain racially nondiscriminatory school as­
signments, is likely to be viewed by some Negro teachers 
as a practical justification for them to discourage the transfer 
of Negro students from all-Negro schools.

The courts can enlist all elements of the school com­
munity in an effort to desegregate schools—but only by a 
display of firmness, affording prompt and adequate redress 
against racially discriminatory hiring practices. This case 
should be remanded with direction that the School Board 
be ordered to offer reemployment to each of the plaintiff 
teachers.

Respectfully submitted,

S. W. T ucker 
H enry L. M arsh, III 

214 East Clay Street 
Richmond, Virginia 23219 

Attorneys for Plaintiffs



A P P E N D I X



I n  T he U nited States D istrict Court 
For T he Western D istrict of V irginia

ROANOKE DIVISION

Civil Action N o. 64-c-73-r

Mary A. Franklin, Lawrence H. Leftwich, Mary F. M ont­
gomery, Sylvia J. Harvey, Hugh D. Woodliff, Sylvia D. 
Austin, Alma G. Spivey and Virginia Teachers Association,

Incorporated,
Plaintiffs,

vs.

County School Board of Giles County 
and P. E. Ahalt, Division Superintendent 

of Schools of Giles County,
Defendants.

COMPLAINT
[Filed July 29, 1964]

1(a) Jurisdiction is invoked under Title 28, United States 
Code, Section 1343. This is a suit in equity, authorized by 
law (42 USC §1983) to be brought to redress the depriva­
tion under color of any statute, ordinance, regulation, cus­
tom or usage, of rights, privileges and immunities secured 
by Section 1 of the Fourteenth Amendment to the Con­
stitution of the United States and Title 42, United States 
Code, Section 1981.

1 (b) Jurisdiction is invoked under Title 28, United States 
Code, Section 1331. This action arises under the Fourteenth 
Amendment to the Constitution of the United States, Section 
1, and under Title 42, United States Code, Section 1983, 
as hereafter more fully appears. The matter in controversy,



exclusive of interest and costs, exceeds the value of Ten 
Thousand Dollars.

2. This action is a proceeding under Title 28, United 
States Code, Sections 2201 and 2202 for a declaratory judg­
ment that racial discrimination in the employment and as­
signment of teachers in a public school system is forbidden 
by the Due Process and Equal Protection Clauses of the 
Fourteenth Amendment to the Constitution and by Title 42, 
USC §1981, for relief by injunction restraining the defend­
ants from refusing to employ the individual plaintiffs for and 
during the 1964-65 school session, and for relief by injunction 
restraining the defendants from discriminating on a basis of 
race with respect to employment of teachers in the public 
school system.

3. Plaintiffs bring this action in behalf of the individual 
plaintiffs and, pursuant to Rule 23(a) (3)  of the Federal 
Rule of Civil Procedure, as an action in behalf of persons 
constituting a class so numerous as to make it impractical 
to bring them all before the court; the character of the 
rights sought to be enforced for the class being several, and 
there being common questions of law affecting the several 
rights of the individual plaintiffs and other members of the 
class, and a common relief being sought.

4. The defendant County School Board of Giles County 
is a body corporate discharging governmental functions, 
existing pursuant to the Constitution and laws of the Com­
monwealth of Virginia. Said school board is empowered 
and required to establish, maintain, control and supervise 
an efficient system of public free schools in said county. 
Among the duties of said board is that of employing teachers 
and assigning them individually to specified schools. (Con­
stitution of Virginia, Article IX, Section 133; Code of V ir­
ginia, 1950, as amended, Title 22.)

App. 2



App. 3

5. The defendant P. E. Ahalt is sued in his capacity as 
Division Superintendent of Schools for Giles County. He 
holds such office pursuant to the Constitution and laws of 
the Commonwealth of Virginia as an administrative officer 
of the public free school system of Virginia. (Constitution 
of Virginia, Article IX, Section 133; Code of Virginia, 1950, 
as amended, Title 22.) He is under the authority, super­
vision and control of, and acts pursuant to the orders, 
policies, customs and usage of, the defendant school board.

6. The plaintiff Virginia Teachers Association, Incor­
porated, is an association chiefly composed of those mem­
bers of the teaching profession residing in the State of Vir­
ginia who are Negroes. Over 8000 of the estimated 8,533 
Negroes teaching in public schools in Virginia are members 
of the Virginia Teachers Association, Incorporated, in good 
standing. Solely because of race, Negroes are excluded from 
membership and participation in the Virginia Educational 
Association which is composed of those members of the 
teaching profession residing in the State of Virginia who are 
not Negroes. The purpose of the plaintiff association is to 
use all means in its power to protect the interest of edu­
cation in general and to raise the standards of the teaching 
profession.

7. One interest herein asserted by the plaintiff association 
is the interest of those of its members who have not hereto­
fore been employed by the defendant school board but now 
desire or hereafter may desire employment by the defendant 
school board. The experience of the plaintiff association and 
its members is and has been such that it believes, and here 
alleges, that a school board is unlikely to consider favorably 
an application for employment from an individual who by 
prosecuting litigation against the board concerning its em­
ployment policies might thereby characterize himself as 
undesirable. The plaintiff association asserts the interest of



App. 4

such member or members because the right not to have his 
application for employment denied on racial grounds might 
well be lost to the now anonymous member by his mere act 
of asserting it.

8. Another interest herein asserted by the plaintiff as­
sociation is the interest of the general class represented by the 
individual plaintiffs, i. e., Negroes who are qualified to teach 
in the public schools in Virginia. For the benefit of that 
class and every person thereof, the plaintiff association here 
asserts that a school board may not, for reasons of race, 
discriminate against Negroes in the employment and assign­
ment of public school teachers.

9. During the 1963-64 school session, each of the in­
dividual plaintiffs was employed by the defendant school 
board as a teacher in the Bluff City Elementary School or 
the Bluff City High School which that board had set apart 
and maintained for the separate education of all of the Negro 
children of Giles County. The only Negroes who as teachers 
were employed by the defendant school board at the close 
of that session and the total number of years of such em­
ployment of each were:

Mary A. Franklin............................... 30 years
Lawrence H. Leftwich 19 years
Mary F. Montgomery........................  8 years
Sylvia J. Harvey...................................  5 years
Hugh D. Wood li IT............................... 4 years
Sylvia D. Austin...................................  3 years
Alma G. Spivey...................................  1 year

10. Following action by the Pupil Placement Board of 
Virginia by which several Negro children living in Giles 
County were assigned to Giles High School for the 1964-65 
session, the defendant school board, on May 5, 1964, directed 
that operation of Bluff City Elementary School and Bluff 
City High School be discontinued after the close of the 1963-



App. 5

64 school session. By letters from the defendant Division 
Superintendent of Schools dated May 15, 1964, each of the 
persons named in the next preceding paragraph was 
notified that his services would not be needed after the close 
of the 1963-64 school session.

11. Under and by virtue of a long standing policy, prac­
tice, custom and usage prevailing through the Common­
wealth of Virginia (unbroken except in Arlington County 
and the City of Alexandria within recent years), and par­
ticularly in the County of Giles, Negroes (regardless what 
the individual qualifications may be) are not and have not 
been assigned to teach in public schools which white children 
attend.

12. The defendants elected to dispense with the services 
of all of the persons who had previously taught at the Bluff 
City Elementary and High Schools solely because they are 
Negroes and because the defendants have had, have, and 
unless enjoined from so doing will continue to have and to 
follow, the above mentioned policy, practice, custom and 
usage which precludes the employment and assignment of 
any Negro to teach in a public school which white children
attend.

13. The said policy, practice, custom and usage of the 
defendants constitutes an arbitrary denial of the property 
right of each person of the class represented by the plain­
tiffs to fair and proper consideration for professional em­
ployment and a denial of the right of each such person to 
the equal protection of the laws, contrary to the provisions 
of Section 1 of the Fourteenth Amendment and contrary 
to Section 1981 of Title 42 of the United States Code.

14. The individual plaintiffs and all persons of the class 
represented by the plaintiffs are suffering irreparable injury 
and are threatened with irreparable injury in the future by



App. 6

reason of the policy, practice, custom and usage and the 
actions of the defendants herein complained of. They have 
no plain, adequate or complete remedy to redress the wrongs 
and illegal acts herein complained of other than as is herein 
pursued. Any other remedy to which they could be remitted 
would be attended by such uncertainties and delays as would 
deny substantial relief, would involve a multiplicity of suits, 
and would cause further irreparable injury and damage, 
vexation and inconvenience.

W herefore, plaintiffs respectfully pray:

1. That this cause be advanced on the docket and that a 
hearing on the prayer for an interlocutory injunction be 
held as soon as practical.

2. That the court enter a judgment, declaratory of the 
rights of the individual plaintiffs and the members of the 
class here represented and of the corresponding obligations 
of the defendants, that the defendants may not permit con­
siderations of race to affect the selection and employment or 
the assignment of persons as teachers in the public school 
system.

3. That the court enter an interlocutory injunction re­
straining the defendants from refusing to employ the in­
dividual plaintiffs, or either of them, as teachers in the public 
school system of Giles County, Virginia, during the 1964-65 
session.

4. That the defendants be permanently restrained and 
enjoined from failing or refusing to select and hire any per­
son in any position of employment under the defendants’ 
control, or otherwise to discriminate against any person with 
respect to compensation, terms, job assignment, or con­
ditions or privileges of employment, because of the person’s 
race or color.



App. 7

5. That the defendants pay the costs of this action in­
cluding a fee for the plaintiffs’ attorneys in such amount as 
to the court may appear reasonable and proper.

6. That the plaintiffs have such other and further relief 
as is just.

/ s /  S. W. T ucker 
Of Counsel for Plaintiffs

REQUEST FOR ADMISSIONS

Under provisions of Rule 36(a) of the Federal Rules of 
Civil Procedure, plaintiffs request that, on or before the 26th 
day of November, 1964, the defendants make admission of 
the matters of fact hereinafter set forth :

One

That under date of May 15, 1964, the defendant Division 
Superintendent of Schools sent a letter over his signature to 
each of the individual plaintiffs and that the body of the 
letter was as follows:

“The Giles County School Board on May 5, 1964, by 
an [sic] unanimous vote, took action to close both the 
Bluff City Elementary School and the Bluff City High 
School at the close of the 1963-64 school session. In a 
special School Board meeting on May 14, 1964, children 
presently attending these schools were placed by the 
School Board for the 1964-65 session.

“These two actions make it necessary to abolish your 
job. Please accept this letter as your notification that 
your services will not be needed after the close of this 
school session. I shall be glad to discuss this problem 
with you should you care for a conference.

“May I take this opportunity to thank you for the 
years of service rendered the School Board of Giles
County and the children of your race.”

*  *  *



App. 8

Three

That the factual matter contained in paragraph 9 of the 
complaint is true.

Four

That the factual matter contained in paragraph 10 of the 
complaint is true.

H enry L. M arsh, III  
Of Counsel for Plaintiffs

ANSWER TO REQUEST FOR ADMISSIONS
[Served November 24, 1964]

For answer to the plaintiffs’ request for admissions under 
Rule 36(a) of the Federal Rules of Civil Procedure, de­
fendants state as follows:

(1) Defendants admit the letter of May 15, 1964 was 
sent and that the body of the letter as set forth in the request 
for admissions is correct.

*  *  *

(3) Defendants admit that the factual matters contained 
in paragraph 9 of the complaint are true.

(4) Defendants admit that the factual matters contained 
in paragraph 10 of the complaint are true.

Respectfully,

County School Board of Giles 
County and P. E. A halt, Divi­
sion Superintendent of Schools for 
Giles County

By John H . T hornton, Jr .
Of Counsel



App. 9

EXCERPTS FROM TRIAL PROCEEDINGS OF 
DECEMBER 28, 1964

*  *  *

[ t r . p . 6 ]

Paul E. A h a l t , called as an adverse witness by and on 
behalf of plaintiffs having been duly sworn, testified as 
follows:

DIRECT EXAMINATION
By: M r. Marsh

Q  Would you state your name, address and occupation 
please sir?

A My name is Paul Edwin Ahalt. My address is Box 
493, Pearisburg, Virginia. My occupation is Division Super­
intendent of School, Giles County, Pearisburg, Virginia.

* * *
[ t r . p p . 12-14]

Q  Mr. Ahalt I noticed that on the forms submitted and 
answers to interrogatories, I notice a listing of the various 
Virginia certificates held by your teachers. Would you 
explain the order of priority of these certificates and what 
the various certificates signify—I mean collegiate and pro­
fessional?

A If I understand your question you are asking me now 
to enumerate for the Court the various kinds of certificates 
issued by the State of Virginia.

Q Yes and held by the teachers in Giles County in order 
of their priority?

A I would like for you to isolate those two questions 
if you would please sir. When you say in the order of priority 
that is where I would like to comment secondly if I may 
explain further.

Q Go ahead.



App. 10

A The highest type teacher so far as paper qualifica­
tion is concerned would be the post graduate professional. 
This is a certificate issued for holders of masters degrees 
who have had as I recall five successful years of teaching. 
We have a collegiate professional certificate which is issued 
to college graduates who had during their preparation for 
teaching either practice teaching or over paying this de­
ficiency by two years of successful teaching. Then we have 
the collegiate certificate which is issued to college graduates 
for those who have had the required hours and preparation 
in practice teaching in specified areas. Then we have a 
certificate that has not been issued since 1942 known as the 
Normal Professional Certificate. This is issued originally 
to persons who have had two years of college preparation 
and these persons have kept their certificate active over the 
years. Then there is another classification of elementary 
and this is my understanding is a certificate that has been a 
number of years since it has been issued. I cannot tell you the 
number but those were issued originally by persons who took 
a teacher’s examination and these persons will date back 
forty years or more. And then there is a special certificate 
and I would like to note this separate from special license. 
I am frank to tell you that I don’t know what a special 
certificate is. We have had as far as I know only one of 
them in my period of Superintendent of Schools. The original 
conditions under which that certificate was issued I could 
not say. I would assume that that was one who had had 
more than the one who had been issued the elementary but 
not as much as the one who had been issued a normal pro­
fessional certificate. That is my projection. I could not 
sustain that. I have never seen that in writing. Then we 
have a certificate which is known as a special license. This 
is a certificate issued to persons since in the vicinity of 1955 
— I would not give you that as a positive date but it is a



App. 11

certificate that has come into being during the time I have 
been a superintendent of schools, issued to persons who in 
1942 would not have had the equivalent of two years of 
college preparation but it may be well that when the cer­
tificate was issued to the person could have completed all 
but the degree requirements, special license means that the 
person has been certified to teach specific area subjects 
by the State Board of Certification in Richmond. As I 
recall that would be the full number. Now in addition to 
that certain endorsements but they all come under types of 
certificates which I have outlined.

*  *  *

[ t r . p . 26]
E v e l y n  W. S h a d e , called as a witness by and on behalf 

of the plaintiffs having been duly sworn, testified as follows:

DIRECT EXAMINATION
By: M r . M a r s h

Q Would you state your name and occupation please? 
A Evelyn W. Shade. I am presently employed as a 

secretary of the law firm of Tucker and Marsh in Richmond, 
Virginia.

Q Mrs. Shade have you had any experience as a statis­
tician?

A Yes I have. I have been doing statistical work in 
various teacher, salary cases and equal facility school cases 
and other civil rights cases since 1950, in addition to other
work in accounting and other statistical work prior to 1950.

* * *
[ t r . p . 32]

Q Did you make a compilation of the total number of 
white teachers appointed to teach in Giles County in each of 
the years 1960-1961 to 1964-1965?

A Yes I did.



App. 12

Q  Will you explain it to us please?
A This was taken from the individual summary sheets 

supplied by the superintendent of schools. In 1964-1965 
there were thirteen teachers whose beginning year with the 
Giles County School System was 1964-1965 and there were 
four such white elementary teachers. In 1963-1964 there 
were six such teachers in the high school, and none in the 
elementary school. In 1962-1963 there were seven teachers 
appointed to the Giles County system for the first time in 
the high school and one in the elementary school. In 1961- 
1962 six white teachers were appointed to the high school 
and two to the elementary school and in 1960-1961 there 
were two appointments to the high school and one ap­
pointment to the elementary school.



Plaintiffs’ Exhibit No. 4
NEGRO TEACHERS IN GILES COUNTY, VIRGINIA, PUBLIC SCHOOLS—SCHOOL YEAR 1963-64

T o ta l

N a m e  and  School
T ear

A p p o in te d
C ertifi­

cate
E xp eri­

ence S u b je c t E ndorsem en ts S u b je c t A ssignm en ts

Mary A. Franklin
Bluff City Elementary

1923 CP 40 yrs. Elementary; Soc. Sci.,* English* Building Teacher; 5th, 6th 
& 7th grades

Laurence Leftwich 
Bluff City High

1949 CP 18 Elementary; English, Soc. Science Math, English, History, 
Music, Guidance; 
Principal

Mary F. Montgomery 
Bluff City Elementary

1956 CP 8 Elementary; Gen. Sci.,* Biology* 1st & 2nd grades

Sylvia J. Harvey 
Bluff City High

1959 CP 5 Soc. Sci. (not including History) Home Econ., M ath, Science, 
History, Phy. Ed.

Hugh D. Woodliff 
Bluff City High

1960 CP 4 Elementary 4-7; English, History, 
Soc. Studies

Math, Government, 
Geography, English, 
Biology, Phy. Ed.

Sylvia D. Austin
Bluff City Elementary

1961 CP 3 Gen. Sci., Biology, Chemistry 3rd & 4th grades

Alma G. Spivey 
Bluff City High

1963 CP 1 Business Education, Soc. Studies English, Soc. Studies, 
Business Typing

*Information furnished by respective plaintiff’s. Answer to interrogatory indicated that information was not available to Superin­
tendent of Schools.

CP—Collegiate Professional.

A
pp. 13



Plaintiffs’ Exhibit No. 5

WHITE ELEMENTARY TEACHERS IN GILES COUNTY, VIRGINIA, PUBLIC SCHOOLS—1964-65 SCHOOL YEAR
T otal

N a m e  a n d  Schoo l
Tear

A p p o in te d
C ertifi­

cate
E xp eri­

ence S u b je c t E ndorsem en t S u b je c t A ssignm en t

Nancy Morgan—Narrows 1964 CP 2 yrs. Art 1st Grade

Carolyn Johnston— Pearisburg 1964 SL 0 — 3rd Grade

Dorothy Harvey—King Johnston 1964 CP 0 History, English 6th Grade

Grover DeHart— Pembroke 1964 Coll. 0 Elem. 6 & 7; English, History, 
Social Studies

7th Grade

Nancy Boens— Pembroke 1962 CP 2 Biology (High & Jr. High) 6th Grade

Goldie Auvil—Rich Creek 1961 CP 9 Elem. grades 1 thru 7 2nd Grade

Mildred Miller-—Pembroke 1961 CP 8 Elementary 2nd & 3rd Grades

Florence Mandeville— Glen Lyn 1960 CP 8 Elementary; English, Social Science 1st and 2nd Grades

Inez Richards— Pearisburg 1959 CP 12 Elementary; English 5th Grade

Maurice Witten—-Newport 1959 CP 7 Gr. 4 thru 7; English, Social 
Studies

7th Grade

William Forrestal— Pembroke 1958 pp 11 Social Studies, History, French, 
Basic Business, Distributive Educ. 
Diversified Occupations

Principal; 3rd Grade 
part-time

Duane Billups— Pearisburg 1957 CP 7 Social Studies, History 5th Grade
Robert Taylor—King Johnston 1957 CP 8 Health, Phy. Ed., History, Social 

Studies
Principal; 7th Grade

Ronald Whitehead—Rich Creek 1957 pp 7 History, Social Studies, Basic Principal; 7th Grade
Business

A
pp. 14



Plaintiffs’ Exhibit No. 5 ( continued)

WHITE ELEMENTARY TEACHERS IN GILES COUNTY, VIRGINIA, PUBLIC SCHOOLS— 1964-65 SCHOOL YEAR

T  otal

N a m e a n d  School
Tear

A p p o in te d
C ertifi­

cate
E xp eri­

ence S u b je c t E n dorsem en t S u b je c t A ssignm en t

Irene Copen— Pearisburg 1956 CP 19 Elementary 1 st Grade

Louise Miller—Pearisburg 1956 CP 23 Elementary; English, Soc. Studies 2nd Grade

Nannie Muncy—Narrows 1956 CP 35 Elementary 3rd Grade

John H. Webb—Narrows 1956 SL 44 — 6th Grade

Mary Whitehead— Pearisburg 1955 CP 9 Social Studies 1st Grade

Shirley Ramsey— Pearisburg 1955 CP 8 Elementary; English 2nd Grade

Frances B. Coburn—Rich Creek 1954 CP 14 English, Social Studies 4th Grade

Betty Coffman—Rich Creek 1954 CP 12 Gr. 1 thru 7; English, Biology, 
Social Studies

7th Grade

Alice Mustard—King Johnston 1954 CP 12 Gr. 6 & 7; Home Econ., English 
History, Chemistry

7 th Grade

Pauline Williams—Narrows 1954 CP 22 Elementary; English 3rd Grade
Howard Houchins—Narrows 1953 NP 19 Elementary 6th Grade
Nona Eisel— Penvir 1953 SL 14 — 1st & 2nd Grades
Sarah Ragsdale— Penvir 1953 SL 11 — 3rd & 4th Grades
Hazel Armbrister— Pearisburg 1952 CP 9 Elementary 5 th Grade
Edith H. Lewey—King Johnston 1952 SL 8 — 7th Grade
Dan M. Huffman—Narrows 1952 PP 12 Gr. 6 & 7; Spanish, Accounting, 

History, English, Social Studies
Principal

A
pp. 15



Plaintiffs’ Exhibit No. 5 (continued)

WHITE ELEMENTARY TEACHERS IN GILES COUNTY, VIRGINIA, PUBLIC SCHOOLS— 1964-65 SCHOOL YEAR
T  otal

N a m e  and  School
Tear

A p p o in te d
C ertifi­

cate
E xp eri­

ence S u b jec t E n dorsem en t S u b je c t A ssignm en t

Glenn Cruise—JPearisburg
fc; C sJL..-., ,M. i *.f. i. At-..

1951 p p 13 Gr. 6 & 7; English, Social Studies, 
History, Spanish

Principal

Iris Williams—Narrows 1950 CP 17 Elementary; Biology, Chemistry, 
English, Home Economics

1st Grade

Lavinia Bogess—Rich Creek 1950 CP 18 Gr. 6 & 7; Physical Ed., Biology 6th Grade
Bessie Price— Rich Creek 1949 Elem. 29 Elementary 1st Grade
Gladys Johnson—Narrows 1948 NP 17 Elementary 4th Grade
Emma Steele—Newport 1948 CP 10 Elementary, English, History, 

Social Studies, Art, Music
4th & 5th

M artha W. Britts—Kimballton 1948 CP 16 Gr. 1 thru 7; English, History, 
Social Studies

Head teacher; 7th Grade

Alva Lucas—Newport 1946 CP 10 Elementary; English, History, 
Social Studies

1st & 2nd Grades

Mary Allen—King Johnston 1946 CP 12 Elementary; English, History, 
Social Studies

6th Grade

Elizabeth Graves—Narrows 1946 NP 25 Elementary 4th Grade
Hazel Lester— Pearisburg 1946 CP 26 Elementary; Geography 5 th Grade
Margaret Whittaker—Eggleston 1946 CP 18 Gr. 6 & 7; English, Social Science, 

Chemistry, General Science, Art
5th & 6th Grades

Florine McCrady—Narrows 1945 CP 17 Elementary; English, History, 
Social Studies

2nd Grade

A
pp. 16



Plaintiffs’ Exhibit No. 5 ( continued)

WHITE ELEMENTARY TEACHERS IN GILES COUNTY, VIRGINIA, PUBLIC SCHOOLS— 1964-65 SCHOOL YEAR

Total

N a m e  a n d  School
Tear

A p p o in te d
C ertifi­

cate
E xp eri­

ence S u b je c t E n dorsem en t S u b je c t A ssignm en t

Elizabeth Johnston— Pearisburg 1945 CP 19 Elementary, English 4th Grade
Virginia M. Ward—King Johnston 1945 CP 27 Gr. 1 thru 7; History, Social 

Studies
6th Grade

Maereen Whitt— Eggleston 1945 CP 22 Elementary; English Head Teacher; 2nd & 3rd 
Grades

Loma Lowe— Pearisburg 1944 CP 34 Elementary; Biology, English, 
History, Social Studies

4th Grade

Virginia Martin—Kimballton 1943 SL 23 — 1st & 2nd Grades
Eleanor Snapp— Pearisburg 1943 CP 35 Elementary; English, History 2nd Grade
Lucille Meadows—Rich Creek 1943 NP 18 Elementary 5th Grade
Beulah Fox—Glen Lyn 1942 PP 12 Elementary Head Teacher; 3rd, 4th, 

5th Grades
Lucy W. Miller—White Gate 1941 CP 20 Elementary; English, Latin, French, 

History, Social Studies
Head Teacher; 4th, 5th, 

6th Grades
Frances Montague— Penvir 1940 CP 27 Elementary; English, History, 

Social Studies
Head Teacher; 

5th, 6th Grades
Constance Thompson—Narrows 1940 CP 23 Elementary; English, History, 

Social Studies
1st Grade

Gladys Jamison— Pembroke 1940 CP 24 Elementary; English 1st Grade
Vivian M. Akers—Bane 1939 CP 23 Elementary; English, History Head Teacher; 1st & 2nd

Grades

A
pp. 17



Plaintiffs’ Exhibit No. 5 ( continued)

WHITE ELEMENTARY TEACHERS IN GILES COUNTY, VIRGINIA, PUBLIC SCHOOLS— 1964-65 SCHOOL YEAR

Total

N a m e a n d  S choo l
T ear

A p p o in te d
C ertifi­

cate
E xp eri­

ence S u b je c t E ndorsem en ts S u b je c t A ssignm en ts

Rosalinda F arrier—Kimball ton 1938 CP 20 Elementary; English, Geography, 
History, Social Science

5th & 6th Grades

Violet Philpott— Pearisburg 1936 CP 28 Elementary; English, History, 
Social Studies

2nd Grade

Myrtle Guynn—Rich Creek 1936 CP 17 Elementary; Biology, English 
Social Science, History

3rd Grade

Pauline Frazier—Narrows 1935 CP 12 Elementary Grades 4 to 7 7th Grade
Anne Hendrickson— Pembroke 1935 NP 19 Elementary 2nd Grade
Mary Morrison— Pembroke 1935 NP 19 Elementary 7th Grade
Inez Miller—Newport 1934 NP 13 Elementary 2nd & 3rd Grades
Myrtle Whittaker—Eggleston 1934 NP 15 Elementary 4th & 5th Grades
Edna G. Thompson— Pearisburg 1934 CP 40 Elementary; English, History, 

Social Studies
4th Grade

Virginia Houchins—Narrows 1933 NP 17 Elementary 4th Grade
Jocelle Saunders—Narrows 1933 NP 28 Elementary 6th Grade
Ella Williams—Pembroke 1931 CP 22 Gr. 1 thru 7; English 2nd Grade
Ruth J. Perdue— Eggleston 1931 CP 26 Elementary; English 6 th & 7 th Grades
Jessie B. Givens—Narrows 1930 CP 34 Elementary; English, History, 

Social Studies
2nd & 3rd Grades

A
pp. 18



Plaintiffs’ Exhibit No. 5 ( continued)

WHITE ELEMENTARY TEACHERS IN GILES COUNTY, VIRGINIA, PUBLIC SCHOOLS— 1964-65 SCHOOL YEAR

Total

N a m e  a n d  School
Tear

A p p o in te d
C ertifi­

cate
E xp eri­

ence S u b je c t E ndorsem ents S u b je c t A ssignm ents

Eliza Miller—Pearisburg 1928 CP 27 Elementary; Biology, English, Soc. 
Studies, History, Math

3rd Grade

Ruby Herbert—Narrows 1928 CP 39 Elementary; English, History, 
Social Studies, Art

5th Grade

Clara Patteson—Narrows 1928 CP 36 Elementary; English, History 7th Grade

Olive Williams— Pearisburg 1928 NP 28 Elementary 1st Grade

Hester Beamer—Narrows 1927 NP 26 Elementary 7th Grade

Margaret Straley—Eggleston 1927 CP 33 Elementary, English, History, 
Biology, Social Science

1st & 2nd Grades

Annie Munsey— Pearisburg 1926 CP 17 Elementary 3rd Grade

Mattie Guthrie— Pearisburg 1926 CP 38 Elementary; Biology, English, 
Soc. Science, History

1st Grade

Emily Eaton—Bane 1925 CP 39 Grades 1 thru 7 2nd & 3rd Grades

Nancy Allen— Pembroke 1924 CP 40 Elementary, Music, English, History 1st Grade

Nancy Dobyns—White Gate 1924 CP 32 Elementary, English, French, 
History, Social Studies

1st, 2nd, 3rd Grades

Nellie V. Wheeler—Narrows 1924 CP 40 Elementary; English, History, 
Social Studies

5th Grade

Mary Carman— Pembroke 1923 CP 29 Elementary; English, History 5th Grade

61
 '

44
v



Plaintiffs’ Exhibit No. 5 ( continued)

WHITE ELEMENTARY TEACHERS IN GILES COUNTY, VIRGINIA, PUBLIC SCHOOLS— 1964-65 SCHOOL YEAR

Total

N a m e a n d  School
Tear

A p p o in te d
C ertifi­

cate
E xp eri­

ence S u b je c t E ndorsem ents S u b je c t A ssignm ents

Greye Lovall—Narrows 1922 CP 41 Elementary; English 2nd Grade

Margaret Caldwell—Kimballton 1921 CP 17 Elementary 3rd & 4th Grades

Anne Hale— Pembroke 1919 NP 34 Elementary 3rd Grade

Lila J. Guthrie— Pearisburg 1919 CP 45 Elementary; Biology, English 
Social Studies

4th Grade

Marguerite Williamson— Pembroke 1919 CP 41 Elementary; English, History 4th Grade

Hollie P. Stowers—Bane 1918 CP 29 Grades 4 thru 7; English, 
Social Studies

4th & 5th Grades

Type of Certificate: CP— Collegiate Professional NP—-Normal Professional
PP— Postgraduate Professional SL— Special License

C oll— Collegiate Elem.— Elementary

A
pp. 20



Plaintiffs’ Exhibit No. 6

T otal

WHITE HIGH SCHOOL TEACHERS OF ENGLISH AND SOCIAL SCIENCES
IN GILES COUNTY, VIRGINIA, 1964-65 SCHOOL YEAR

N a m e and  School
T ear

A p p o in te d
C ertifi­

cate
E xp eri­

ence S u b je c t E ndorsem en ts S u b je c t A ssignm ents

Ann Shelton—Giles 1964 CP 3 yrs. English, History, Soc. Studies, 
Latin

English

Larry Greer—Narrows 1964 CP 5 History, Soc. Science, Health, 
Physical Educ.

Amer. History, Soc. Studies, 
assistant football, 
basketball, spring sports

Susan von Peachy— Giles 1964 CP 12 English English 10; Developmental 
Reading

Pamela Croy— Giles 1963 CP 1 History, Social Science English 11, World History
Arvenie Shutt— Giles 1963 pp 18 Health Educ., History, Soc. Stud. U. S. History, Sociology
Jewell Francis—Giles 1962 CP 2 English, Vocational Health Educ. English 11

Grace Glenn—Giles 1962 CP 9 English, History, Social Science; 
Elementary grades 1-7

English 12

Donald Brookman—Narrows 1962 CP 2 Spanish, Social Studies (not 
including History)

Economics, Sociology; Soc. 
Studies; World Geography

Sybil Kountz— Narrows 1961 CP 2 Art English 8, Art

Joseph Coleman— Giles 1961 pp 7 History & Soc. Science, Gen. 
Science, Basic Business

World History, Government

Robert Richards—Giles 1961 PP 10 Music, English, Speech, Sociology, English, Speech
Bioiogy

A
pp. 21



Plaintiffs’ Exhibit No. 6 (continued)

T otal

WHITE HIGH SCHOOL TEACHERS OF ENGLISH AND SOCIAL SCIENCES
IN GILES COUNTY, VIRGINIA, 1964-65 SCHOOL YEAR

N a m e a n d  School
Tear

A p p o in te d
C ertifi­

cate
E xp eri­

ence S u b je c t E ndorsem en ts S u b je c t A ssignm ents

Ruby Hylton— Giles 1959 CP 18 English, History, Soc. Science; 
Elementary grades 1-7

English 9

Thomas Ballard—Narrows 1959 pp 16 Health, Phy. Educ., History, 
Biology, Soc. Studies

Government 12

Nancy Taylor— Giles 1958 CP 7 English English 8, Reading

Carnell Hype—Giles 1957 CP 33 Biology, English, History, Latin, 
Soc. Science; all elementary

English 9

Norene Harding— Giles 1957 CP 30 Biology, English, French, History, 
Soc. Science; all elementary

English 8

Glorena Rader—Narrows 1955 CP 18 English English 9

Grace Robertson—Giles 1954 pp 11 English, French, History, Soc. 
Studies

U. S. History

Claude Goodwin— Giles 1949 CP 8 English, History, Soc. Studies; 
Grades 6 & 7

Government, Economics

Jewell Ballard—Narrows 1947 CP 10 English, Soc. Science (not including 
History), Gen. Science

English 8 & 10; Reading

Cuba Hardwick—Narrows 1943 CP 33 Biology, English, History English 12

Katheryn Ring—Narrows 1930 CP 19 English, History, Social Studies U. S. History, English 10

A
pp. 22



Plaintiffs’ Exhibit No. 7

T o ta l

WHITE HIGH SCHOOL SCIENCE TEACHERS IN GILES COUNTY, VIRGINIA, PUBLIC SCHOOLS
1964-65 SCHOOL YEAR

N a m e a n d  School
Tear

A p p o in te d
C ertifi­

cate
E xp eri­

ence S u b je c t E ndorsem ents S u b je c t A ssignm ents

Helen Blankenship—Narrows 1964 CP 0 yrs. Biology, Chemistry M ath, Gen. Science

Jacquelyn Cantley—Giles 1963 CP 6 Biology, Gen. Science Gen. Sci. 8 & 9

William Copley, Jr.—Narrows 1962 Coll. 2 Chemistry, M ath, Physics, Mech. 
Drawing

Chemistry, Physics, Mech. 
Drawing

Dorothy Johnson— Giles 1962 CP 4 Vocational Home Economics, 
Biology, General Science

Gen. Science, Biology

Bobby D. Wilburn— Giles 1960 CP 4 Health, Phy. Educ., Biology Biology

Robert Price—Narrows 1960 pp 4 Biology, Health & Phy. Educ., 
Gen. Sci., Driver Education

Biology, Phy. Educ., head 
football coach, assistant 
spring sports

Cornelius Burgess—Narrows 1958 CP 9 History, Soc. Sci., Chemistry, 
Biology, Physics, Gen. Science

Gen. Sci. 9, Biology

Panco Cantley—Giles 1954 CP 12 Social Studies, History, Biology, 
Gen. Science

World Geography, Physics

Clotilde Ballard 1948 pp 40 Chemistry, Biology, Home 
Economics, English

Chemistry, Biology

A
pp. 23



App. 24

STATEMENT OF POSITION OF PLAINTIFFS
[Filed June 22, 1965]

The position of the plaintiffs with respect to the relief 
which the Court should grant pursuant to the factual find­
ings and legal conclusions reached in its opinion filed on 
June 3, 1965, is:

1. Having found that the school board failed to renew 
the contracts of the individual plaintiffs for reasons for­
bidden by the Fourteenth Amendment, the Court should 
place these plaintiffs as nearly as possible in the position 
they would have held but for the school board’s uncon­
stitutional action. To do less is to fail to accord these plain­
tiffs the protection which the constitution requires that 
they have. From the evidence in this case, it appears that if 
these plaintiffs had been white they would have been 
reemployed for the 1963-64 session and, on a competitive 
basis with other teachers in the system, they would have 
had a chance for continued employment thereafter.

2. Inasmuch as the normal relief would be reinstate­
ment, the burden should be placed on defendants to demon­
strate that such relief should not now be given. Plaintiffs 
are informed that the defendants have vacancies in several 
of the areas in which some of them are certified and that 
the defendants have been actively recruiting in an effort to 
fill these vacancies.

3. One of the individual plaintiffs is available and anxious 
to teach in Giles County in September 1965. Because the 
Court’s opinion was handed down after the time for signing 
contracts for the 1965-66 school year had passed, the other 
six individual plaintiffs have already contracted to teach 
elsewhere during the 1965-66 school term. The Court having 
found that the seven teachers were discharged because of



App. 25

their race, equitable principles require that the one teacher 
now available to work in September be reinstated forthwith 
and that the remaining six now under employment with 
other school divisions be given an early opportunity to accept 
reemployment in the Giles County school system,

4. Being aware that Negro teachers in five counties in 
the Western District of Virginia have suffered termination 
of employment following the abandonment of special school 
facilities for Negro children for the 1965-66 session, the 
plaintiff Virginia Teachers Association urges that anything 
less than reinstatement or opportunity for reinstatement in 
the instant case will fail to deter other school boards from 
similar unconstitutional action.

/ s /  H enry L. Marsh, III 
Of Counsel for Plaintiffs

OPINION
[Filed June 3, 1965]

This action was brought by seven Negro teachers and the 
Virginia Teachers Association, Inc., an organization repre­
senting Negro teachers throughout the state, against the 
County School Board of Giles County, Virginia (herein­
after referred to as the School Board) and the Division 
Superintendent of Schools of Giles County, Mr. P. E. Ahalt. 
The jurisdiction of this court is invoked under Sections 
1331, 1343, 2201 and 2202 of Title 28 and Sections 1981 
and 1983 of Title 42 of the United States Code.

The gist of the complaint is the allegation that the seven 
individual plaintiffs were denied re-employment as teachers 
by the defendants for the 1964-65 school session because of 
their race. The defendants, while denying that they dis­
criminated against these individuals, acknowledge that the 
Fourteenth Amendment to the Constitution of the United



App. 26

States forbids discrimination on account of race by a public 
school system with respect to the employment of teachers.

Defendants on their part moved for summary judgment 
on the ground that the decision to refuse these teachers 
re-employment was wholly within the discretion of the 
school authorities. This motion was denied and an evi­
dentiary hearing held at which the facts hereinafter stated 
were developed.

Giles County lies in the mountains of Appalachia on the 
Virginia-West Virginia line to the north and west of R ad­
ford, Virginia. Over the last fifteen years the County has 
experienced a gradual decline in population, recently con­
tributed to by cut-backs in the work force of the Celanese 
Corporation, its principal employer, resulting from automa­
tion of the Celanese plant. The overall decline in population 
was matched by a leveling off and decline in the number of 
school age children.

P. E. Ahalt, the Superintendent, was appointed to his 
present position in 1953. The evidence shows that through­
out the decade 1953-63 Mr. Ahalt was faced with a con­
siderable challenge in his efforts to upgrade and improve the 
quality of education for all of Giles County’s children. A 
program of consolidation of the white schools was carried 
out and completed in 1962. Bond issues were fought, de­
feated and later passed, with many of the citizens in the 
remoter areas apparently resisting the closing of their local 
schools. Also throughout this period efforts were made to 
upgrade the quality of the schools which were provided for 
the County’s approximately 125 Negro students. The evi­
dence shows that during Superintendent Ahalt’s term Giles 
for the first time provided facilities for the education of 
Negro high school students beyond the tenth grade, and 
that school building conditions were greatly improved. How­
ever, the evidence also shows that the County’s facilities for



App.27

Negro students, the so-called Bluff City Schools, were never 
sufficiently satisfactory to warrant accreditation and that the 
faculty was, by the Superintendent’s own admission, below 
the standard of the other schools. Because of the very small 
Negro population of the County (some 400 out of a total 
of 17,000), Mr. Ahalt recruited actively, but experienced 
great difficulty in attracting teachers to staff the Negro 
schools. He testified that his standards for accepting teachers 
for these positions were somewhat lower than the standards 
he used in screening new white applicants.

This dual school system with all of its difficulties was 
ended when in May, 1964, the School Board voted to 
abandon the Bluff City Negro schools as the result of the 
application of approximately twenty of the Negro high 
school students for transfer to the formerly all white high 
schools. Following the Board’s decision, the individual plain­
tiffs were notified by letters from the Superintendent dated 
May 15, 1964 that their jobs had been abolished and that 
their services would no longer be needed. It is this dismissal 
which plaintiffs complain of, arguing that the decision of 
the Superintendent was motivated by considerations for­
bidden by the Fourteenth Amendment.

Mr. Ahalt has accepted full responsibility for the decision 
to discharge these teachers. He acknowledges that the 
decision was made only after ‘‘hours of meditation” and 
that he “had a lot of misgivings” as to what his procedure 
should be. No one can look into a man’s mind and examine 
his thought processes. However, in the view which I take 
of this case, such delving is unnecessary. Mr. Ahalt has 
testified before me and appeared to be an excellent ad­
ministrator dedicated to the best interests of the Giles 
County school system. However, while I do not question his 
allegiance, I am satisfied that his action deprived these 
teachers of their rights under the Fourteenth Amendment.



App. 28

Although I sympathize with a school administrator who has 
had this very thorny problem thrown upon him after what 
appears to have been a long and bitter battle over con­
solidation, my duty to assist in the transition from seg­
regated to integrated schools requires that I direct him to 
re-examine his decision.

This case bears a definite factual and legal relationship to 
the case of Brooks, et al. v. School District of City of 
Moberly, Missouri, 267 F. 2d 733 (8th C ir.), cert, denied, 
361 U.S. 894 (1959), which involved the discharge of 
eleven Negro teachers following the closing of the Negro 
schools in Moberly. The Court of Appeals there charac­
terized as “unusual and somewhat startling” the school 
board’s conclusion that of the 109 teachers in the school 
system before the closing of the Negro school (98 white and 
11 Negro) all of the eleven Negro teachers were less 
qualified than any but four of the white teachers and that 
these 15 should be discharged. The court went on to uphold 
the district court’s determination that the complaint should 
be dismissed saying:

. . .  we cannot say with certainty here that there was no 
substantial evidence to support the trial court’s finding 
and conclusion that the Board acted honestly pursuant 
to its rule in awarding the teacher contracts. Brooks, 
et al. v. School District of City of Moberly, supra, at 
739.

The instant case involves a determination by the Super- 
intendant of the Giles County School System that of the 
186 teachers in the system prior to the closing of the Negro 
schools seven were less suitable for re-employment than the 
remaining 179 and that those seven were the seven Negroes. 
The question before me is whether in reaching this con­
clusion the Superintendent exercised his discretion in such



App. 29

an unreasonable, arbitrary, capricious or unlawful manner 
as to violate these teachers’ rights under the Fourteenth 
Amendment.

In reviewing Mr. Ahalt’s decision, the crucial period was 
between early M arch of 1964 when it first became known 
that transfers would be applied for and May 15, 1964 when 
the formal decision to discharge these teachers was an­
nounced. However, the actions taken as the result of the 
decision to close the Bluff City schools must be contrasted 
with the evidence in the record of prior policy in similar 
situations. In particular, the record shows that on a number 
of occasions throughout the period preceding the closing 
of the Negro schools consolidations of white schools were 
carried out and in each instance the white teachers whose 
schools had been closed were retained in the school system. 
The earlier abandonments indicate to me that the Super­
intendent had followed a policy of using teachers from the 
abandoned schools in other schools in the system because he 
viewed the system as basically homogeneous, by which I 
mean that in normal circumstances he would transfer 
teachers between the various schools to suit the needs of the 
system rather than considering the teachers in the abandoned 
schools as unemployed and potentially available for any 
openings that might occur in the other schools. There are 
other indications of this policy in the record. Teachers have 
been shifted from school to school when and as needed. 
This system of shifting faculty personnel must have been used 
widely in the school years immediately prior to and following 
the 1962-63 school year when thirteen elementary teachers 
were eliminated to remedy the overstaffing in the elementary 
schools which had resulted from the series of consolidations. 
In order to adjust to an overstaffed condition and then to 
readjust following the elimination of that problem the sys­
tem and the faculty must have had a great deal of flexibility 
in assignments.



App. 30

In view of this pre-existing policy, I believe that the 
Superintendent’s stated policy with regard to these plain­
tiffs, i.e., to evaluate their right to continued employment 
in terms of the vacancies then existing in the other schools in 
the system rather than by comparison of their effectiveness 
with the other teachers in the system was too restrictive 
and its use in this particular instance resulted in a discrimina­
tion against these individuals. This is not to say that it is 
constitutionally required under all circumstances to make 
such an overall re-evaluation. However, the making of such 
an evaluation is strong evidence of good faith, see Brooks, 
et al., supra, at 736, and where, as here, the school board 
has carried on a policy of retaining teachers (although the 
result in one instance was admitted over-staffing) and has 
eliminated teachers only after evaluation of their qualifica­
tions in comparison with those of all of the other teachers in 
the system, it is extremely difficult to justify the standard 
used in this case in the absence of any evidence in the record 
which would justify a change of policy on other than racial 
grounds. The evidence established that the closing of the 
Negro schools necessitated a reduction in the teaching staff. 
Accepting the defendants’ contention that the individual 
plaintiffs were not qualified for any of the positions opening 
up as the result of turnover, the Superintendent did not 
explain why these teachers were not evaluated and com­
pared with all of the other teachers in the system who taught 
in areas in which the plaintiffs could teach in accordance 
with his prior practice in making these decisions.

My conclusion that the scope and nature of the Superin­
tendent’s evaluation of these teachers was arbitrary and re­
sulted in a discrimination against them makes it unnecessary 
for me to review at any length the evidence offered by the 
plaintiff that in fact there was never a real evaluation of 
teaching qualifications and that in deciding to discharge all



App. 31

seven of these teachers the Superintendent considered only 
the closing of the Negro schools. There is evidence from 
which such a conclusion could be inferred. The letter sent 
to the individual plaintiffs refers solely to the abolition of their 
jobs because of the closing of the Bluff city schools without 
any reference to an evaluation or to any possibility that they 
could be employed in the previously all-white schools. As 
the Superintendent must have been aware that there would 
be vacancies before the opening of the school year and as he 
could not then know exactly who would be available to fill 
these vacancies, his abrupt termination of the employment 
of these plaintiffs is suspect. It certainly must be contrasted 
with the termination of the thirteen white elementary 
teachers in 1962-63 who defendants stated in their brief 
then formed a “pool” against future needs.

Similarly, I will not review at length the parties’ attempts 
to compare the respective qualifications of the individual 
plaintiffs and the fifteen new teachers hired by the Superin­
tendent for the 1964-65 school year. It does appear that 
several of the individual plaintiffs were better qualified con­
sidering only their certifications and experience than some 
of the people who were subsequently hired. However, these 
new people were hired at various times both before and after 
the termination of the employment of the individual plain­
tiffs and there is no indication that the Superintendent ever 
made a comparison of the qualifications of all of these 
teachers before asked to do so at the hearing in this matter 
by his attorney. In this factual posture there is nothing to 
be gained by the court’s speculating upon the subjective 
qualifications of the individuals involved, except to note 
again that the finality with which the individual plaintiffs 
employment was terminated, in light of the Superintendent s 
obvious knowledge that new teachers would have to be hired, 
reflects badly upon the basis for that decision.



App. 32

Perhaps the most difficult problem to be solved in this 
litigation is how to remedy the discrimination against the 
individual plaintiffs. Involved is the difficult problem of 
weighing the interests of the teachers, all of whom have 
found other employment, against the possible detrimental 
effects of an order re-employing them upon the adminis­
tration of the schools and the efficiency of their staffs. The 
problem of the Negro teacher in the predominantly white 
classroom has always been in the background in this litiga­
tion. The Superintendent’s decision purportedly was not 
based upon a consideration of potential difficulties arising 
from this situation but only upon the qualifications of the 
individuals involved. Therefore, there could be no justifica­
tion of his initial decision on these grounds. However, as 
some further action will have to be taken by him regarding 
these individuals because of the court’s order in this matter, 
some discussion will help to serve as a guideline to his future 
decisions.

The courts of the fourth circuit have dealt before with 
the very closely related problem of integrating the teaching 
staffs of larger school systems as a proper means of putting an 
end to the operation of schools on a racially segregated basis. 
See, e.g., Griffin v. Board of Supervisors of Prince Edward 
County, 339 F. 2d 486 (4th Gir. 1964), Jackson v. School 
Board of City of Lynchburg, 321 F. 2d 230 (4th Cir. 1963) ; 
Christmas v. Board of Education of Elarford County, 231 
F. Supp. 331 (D. Md. 1964). This court has in the past 
approved plans calling for the desegregation of teaching 
staffs as in the plan finally adopted by the Lynchburg City 
School Board on M arch 10, 1964. The court of appeals has 
commended action designed to eliminate considerations of 
race in personnel actions of school systems. See Brooks v. 
County School Board of Arlington County, 324 F. 2d 303, 
306 (4th Cir. 1963). However, this court, in approving



App. 33

plans aiming at the eventual desegregation of teaching 
staffs, has been mindful of the problems to be overcome be­
fore a totally color-blind assignment policy can be put into 
effect and has left preliminary consideration of this matter to 
the school authorities. In its recent opinion in Bradley v. 
School Board of the City of Richmond,—F. 2d— (4th 
Cir. 1965), the Court of Appeals supports a cautious ap­
proach to this problem. The court at page— laid down the 
following guidelines for the district courts:

When all direct discrimination in the assignment of 
pupils has been eliminated, assignment of teachers may 
be expected to follow the racial patterns established in 
the schools. An earlier judicial requirement of general 
reassignment of all teaching and administrative per­
sonnel need not be considered until the possible detri­
mental effects of such an order upon the administration 
of the schools and the efficiency of their staffs can be 
appraised along with the need for such an order in aid 
of protection of the constitutional rights of pupils.

Potentially the reinstatement of these plaintiffs poses very 
similar problems to those raised in the Bradley opinion. 
Possible detrimental effects should be considered by the 
school authorities in the first instance before any decision 
is made to integrate teaching staffs. On the record before 
me this has not been done by the Giles County authorities 
and the remedy will afford them an opportunity to make 
this evaluation. However, mere possibilities of difficulty 
should not be used as an excuse to disregard the rights of 
the Negro teachers. The burden of integration must not be 
shifted to their backs alone.*

*By letter to counsel dated June 17, 1965, the District Court revised 
this sentence to read, “The burden of integration must not be shifted 
to them.



App. 34

W hat is required is an intelligent appraisal of the capacity 
of the individuals involved to perform their true function— 
to educate their pupils. The rights of the pupils to the best 
possible educational opportunity are of paramount im­
portance. Bald assertions of incompetency to perform this 
function, however, are not substitutes for reasoned analysis 
of the individual situations and an unwillingness to experi­
ment to test the validity of a conclusion may well be con­
sidered as an admission of the weakness of that conclusion.

Turning to the specific relief which will be ordered to 
remedy the discrimination practiced against these seven 
teachers this court is mindful of the admonition of the Su­
preme Court in Brown v. Board of Education, 349 U. S. 
294, 300 (1955) that courts are to be guided by equitable 
principles and that equity has been characterized by a prac­
tical flexibility in shaping its remedies and by a facility for 
adjusting and reconciling public and private needs. The 
interests of the individual plaintiffs in this litigation would 
be best served by placing them as nearly as possible in the 
positions that they occupied immediately before their dis­
charge. In this instance that would require that the Superin­
tendent re-evaluate the teaching qualifications of these in­
dividuals in comparison with all of the other teachers in 
the school system. However, these individuals have all ac­
cepted other teaching employment and the record is by no 
means clear as to how many of these people would now 
accept jobs in the Giles County school system were they 
offered. Furthermore, for the Superintendent to attempt to 
reconstruct an entirely hypothetical situation as of the date 
of the discrimination or in the alternative to involve people 
employed since that date in a complete evaluation would 
result in a great burden upon him and the school system be­
cause of its unsettling effect on the present faculty who would 
be potentially in danger of losing their jobs. I will not order



App. 35

such a review under these facts and the plaintiffs very rea­
sonably have not insisted upon it.

W hat seems appropriate under the facts of this case is 
a general injunction against further discrimination in carry­
ing out personnel practices by the school system coupled 
with a system of preferential hiring to protect the interests 
of the individual teachers. I will order the defendants to 
carry out the following procedure in employing new teachers 
for a period of one year from the date of the entry of the 
final order in this case.

Upon the occurrence of any vacancy in the teaching staff 
within this period the Superintendent will write to each of 
the individual plaintiffs who are certified or experienced in 
the area of the vacancy inquiring whether that individual 
would be available to fill the vacant position and would like 
to be considered for it. Should any affirmative replies be 
received, the Superintendent will be directed to consider 
the qualifications of that individual or individuals together 
with the qualifications of any other persons who have applied 
for the position. Should his decision be to offer the position 
to an applicant other than one of the individual plaintiffs, 
he is to notify the plaintiffs who have applied of his decision 
and submit a written statement of his reasons to this court as 
soon as possible. The court will then review his decision on 
the basis of his statement and either affirm his decision, in, 
which case an offer may be made to the applicant selected, 
or will ask him to reconsider if it appears that his action 
was arbitrary. Any such statement will of course remain 
completely confidential for the protection of the individuals 
involved. However, should this court affirm a decision of 
the Superintendent to employ someone other than one of 
the individual plaintiffs based upon such a statement, any 
plaintiff who has been denied re-employment may request 
a copy of the statement and a formal hearing at which to



App. 36

challenge the Superintendent’s decision before this court.
This procedure, although involved, should prove little 

burden to the Superintendent in practice because of the few 
individuals involved and its short duration. By this pro­
cedure those of the individual plaintiffs who are interested 
in teaching in the Giles County school system will have the 
opportunity of receiving a re-evaluation of their teaching 
ability. They will not, however, be guaranteed a position 
if there are other teachers available who are better quali­
fied. This variance from the plaintiffs’ requested injunction 
seems clearly warranted in order to protect the interests of 
the pupils who are also innocent parties in this litigation.

Nothing heretofore said has attempted to distinguish the 
cases of Mary A. Franklin or Sylvia D. Austin from the other 
five individual plaintiffs. There was some testimony taken 
as to each of these individuals regarding their possible un­
suitability for employment. However, as the Superintendent 
is being asked to review his conclusions as to five of the 
teachers should they express their interest in re-employment, 
there can be no harm in treating these individuals similarly. 
The record developed thus far as to the reliability of plaintiff 
Mary A. Franklin is not sufficiently detailed for the court 
to rule that she was not discriminated against. The Superin­
tendent may have a different view of the importance of her 
indiscretion against a different background. There is also 
evidence that the plaintiff Sylvia D. Austin was notified 
as early as M arch of 1964 that her work was unsatisfactory 
and that her contract would not be renewed. However, 
there is nothing in the record before me to indicate how 
deeply the Superintendent was embroiled in the overall con­
troversy when this decision was made and there seems no 
harm in directing him to reconsider her qualifications if she 
requests it by applying for a position which he has notified 
her is vacant.



App. 37

The final prayer of the complaint is that the defendants 
be required to pay the plaintiffs’ counsel fees incurred in this 
litigation. Suffice it to say that this school board has not 
been unreasonable or obdurately obstinate. See Bradley v. 
School Board of the City of Richmond, supra, at p. 10. 
Quite the contrary, the school board has been extremely 
reasonable in its handling of this novel and difficult legal 
problem as has been its counsel. It follows, therefore, that 
no allowance for attorneys’ fees should be made.

/ s /  T homas J. M ichie
United States District Judge

June 3, 1965.

ORDER
[Entered June 23, 1965]

For the reasons set forth in the opinion of this court ren­
dered in the above-styled case on June 3, 1965, it is

Ordered

that the defendants and their successors be permanently re­
strained and enjoined from discriminating on the basis of 
race in the selection or retention of teachers for the Giles 
County School System, and further

Ordered

that the defendants and their successors be restrained and 
enjoined for a period of two years from the entry of this 
order from employing any teacher in the Giles County 
School System who is not presently on the payroll unless 
the following preliminary procedures are carried ou t:

(1) Upon the occurrence of any faculty vacancy in the 
Giles County School System the Superintendent will write



App. 38

by registered or certified mail, return receipt requested, to 
those of the individual plaintiffs in this action who are certi­
fied or experienced in the area of the vacancy inquiring 
whether that individual or individuals would be interested 
in being considered by him for that position under the pro­
cedures set forth in this order;

(2) A plaintiff, upon receipt of such an inquiry from the 
Superintendent, shall have ten (10) days within which to 
reply if said plaintiff wishes to be considered for the vacancy;

(3) Upon the receipt of an affirmative reply or replies 
to any such inquiry, the Superintendent will evaluate the 
qualifications of each of the plaintiffs who have expressed 
their desire to be considered together with those of any 
other teachers who have applied for the position to be filled 
and shall make his decision as to which of the applicants is 
better qualified for the position following his normal pro­
cedures ;

(4) Should the Superintendent decide that an applicant 
other than one of the individual plaintiffs has superior quali­
fications he shall forthwith prepare and send to the court 
a written statement of his reasons for so deciding together 
with a copy of a letter to be sent to the individual plaintiffs 
involved informing them of the decision not to re-employ 
them;

(5) Upon receipt of such a statement, the court will 
forthwith either affirm the decision of the Superintendent 
in which case an offer may be made to the individual to be 
hired, or, should the court conclude from the statement that 
the Superintendent’s decision was arbitrary, the matter will 
be remanded to the Superintendent for further considera­
tion;

(6) Any individual plaintiff aggrieved by a decision of



App. 39

the Superintendent not to re-employ him may by letter 
inform this court of his objection. Upon being informed of 
an objection the court will supply the objecting plaintiff 
with a copy of the Superintendent’s statement. A date may- 
then be set for a hearing at which the plaintiff and the 
Superintendent may present material evidence;

(7) Following any hearing held the court will enter a 
formal order either affirming the decision of the Superin­
tendent or ordering the hiring of the individual plaintiff who 
was denied re-employment for racially discriminatory 
reasons.

Enter: June 23, 1965.

/ s /  T homas J. M ichie
United States District Judge

NOTICE OF APPEAL

Notice is hereby given that Mary A. Franklin and all 
others of the plaintiffs in this case,

Hereby appeal to the United States Court of Appeals for 
the Fourth Circuit from so much of the order of this Court, 
entered June 23, 1965, as fails (1) to grant prayers num­
bered 3 and 5 of the complaint or (2) to otherwise require 
the defendants to employ the individual plaintiffs as teachers 
in the public school system of Giles County, Virginia, at 
some future time and to award to the plaintiffs reasonable 
attorney fees.

H enry L. M arsh, III  
Of Counsel for Plaintiffs

S. W. T ucker 
H enry L. Marsh , III 

214 East Clay Street 
Richmond, Virginia 23219 

Counsel for Plaintiffs



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