Fifth Circuit Court of Appeals Opinion

    CAMPBELL v. GADSDEN COUNTY DIST. SCHOOL BD. 

Witt CAMPBELL, Plaintiff-Appellee 
Cross Appellant, 

Ve. 

GADSDEN COUNTY DISTRICT 
SCHOOL BOARD et al., etc., Defend- 

ants-Appellants Cross Appellees. 

No. 75-1998. 

United States Court of Appeals, 
Fifth Circuit. 

July 2, 1976. 

Former black elementary school 
principal brought action against school 
district based on allegations that he was 
discriminatorily demoted to position of 
assistant high school principal in connec- 
tion with unification of previously segre- 
gated school system. The District Court 
for the Northern District of Florida, 
Norman C. Roettger, Jr., J., sitting by 
designation, ordered the principal's rein- 
statement and awarded attorneys’ fees, 
but denied back pay and all parties ap- 
pealed. The Court of Appeals, Ains- 
worth, Circuit Judge, held that the prin- 
cipal’s claim was encompassed by civil 
rights statute giving all citizens the 
same right to make and enforce con- 
tracts as is enjoyed by white citizens; 
that the school district was not protected 
by the Eleventh Amendment; that the 
principal had been demoted; that the 
school district had not complied with de- 
cisions prohibiting discriminatory demo- 
tion or dismissal of faculty and profes- 
sional staff displaced by unification of 
previously segregated school system; 
that the principal was entitled to recover 
back pay; and that principal was enti- 
tled to recover attorneys’ fees. 

Affirmed in part, reversed in part, 
and remanded. 

4359 

1. Courts &=284(4) 

Civil rights jurisdiction is unavaila- 
ble in the absence of an appropriate 
cause of action; failure to state a claim 
under various civil rights statutes or oth- 
er appropriate legal authority has the 
effect of depriving federal court of sub- 
ject matter jurisdiction. 42 U.S.C.A. 
§§ 1981, 1983, 1985; 28 U.S.C.A. § 1343. 

2. Courts &=284(4) 

Jurisdiction under civil rights con- 
spiracy statute is no broader than that 
under statute creating liability on the 
part of any person who deprives another 
of any rights, privileges or immunities 
secured by the constitution and laws. 42 
U.S.C.A. §§ 1983, 1985. 

3. Civil Rights &=13.1 

Statute giving all persons the same 
right to enter into contract as is enjoyed 
by white persons is available to a much 
narrower class of potential litigants than 
statute generally proscribing the depri- 
vation of any rights, privileges or immu- 
nities and is designed primarily to reme- 
dy a limited range of civil rights infrac- 
tions in which racial animus is implicat- 
ed. 42 U.S.C.A. §§ 1981, 1983. 

4. Civil Rights &=13.12(3) 
Courts &=284(4) 

Black former elementary school 
principal who claimed that he had been 
transferred to position of associate prin- 
cipal at high school as result of diserimi- 
natory demotion resulting from unifica- 
tion of previously segregated school sys- 
tem and that he was entitled to position 
as elementary school principal and to 
back pay and compensatory seniority 
stated cause of action under civil rights 
statute giving all persons the same right 
to make and enforce contracts as is en- 
joyed by white persons; federal court 
thus had civil rights jurisdiction over the 

Synopses, Syllabi and Key Number Classification 
COPYRIGHT © 1976, by WEST PUBLISHING CO. 

The Synopses, Syllabi and Key Number Classifi- 
cation constitute no part of the opinion of the court. INDEXED 



4360 CAMPBELL v. GADSDEN COUNTY DIST. SCHOOL BD. 

claim. 42 U.S.C.A. § 1981; 28 U.S.C.A. 

§ 1343. 

5. Civil Rights ¢=13.7 
Individual school board members 

named in complaint filed by black teach- 
er were “persons” for purposes of civil 
rights statute. 42 U.S.C.A. § 1983. 

6. Civil Rights &=13.7 
Courts &=284(4) 

Question of whether action under 
civil rights statute will lie and whether 
civil rights jurisdiction will attach de- 
pends not on the nature of the relief 
sought but on whether the action is, in 
substance, an action against a “person” 
within meaning of the civil rights stat- 
ute. 42 US.C.A. § 1983; 28 U.S.CA. 

§ 1343. 

7. Civil Rights &=13.16 
Courts &=284(4) 

Although statute generally proscrib- 
ing the deprivation of rights, privileges 
and immunities secured by the constitu- 
tion and laws will suffice as the basis of 
jurisdiction where teacher’s claim 
against school board is merely a request 
for equitable reinstatement, it is not ad- 
equate with regard to complaints for 
back pay or attorneys’ fees; relief in the 
form of restitution or damages is not 
available against officers of an entity 
which is a “nonperson” under civil rights 

statute. 42 U.S.C.A. § 1983. 

8. Courts ¢=303(2) 

Florida school boards are not the 

type of entity sheltered by the Eleventh 
Amendment and that Amendment did 
not preclude black principal from recov- 

ering back pay or attorneys’ fees with 
respect to his civil rights action against 
school board. U.S.C.A.Const. Amend. 11. 

9. Civil Rights &=9.12 
Black former elementary school 

principal, who was given position of as- 

sistant high school principal following 

unification of previously segregated 
school system and who earned $300 more 
than an elementary school principal with 
comparable seniority during his first 
year, but who earned $200 to $500 less in 
subsequent years, who was required to 
drive a longer distance to school, who 

was given less responsibility, and who 
demonstrated that the position carried 
less prestige was “demoted” for purposes 
of decisions prohibiting discriminatory 
demotion or dismissal of faculty dis- 
placed by unification of previously segre- 
gated school system. 42 U.S.C. A. § 1981. 

10. Civil Rights &=9.10 
Obligation of school board not to en- 

gage in discriminatory demotion or dis- 
missal of faculty and professional staff 
displaced by unification of previously 
segregated system does not accrue only 
after integration-related dismissals or 
demotions have occurred; if there is a 

reduction in the number of principals, 
teachers and other professional staff as 
result of unification, staff member to be 

dismissed or demoted must be selected 
on the basis of objective and reasonable 
nondiscriminatory standards from all the 
staff of the school district. 

11. Civil Rights &=13.13(3) 
Evidence that school board never de- 

veloped written, objective, nonracial cri- 

teria to be used in connection with de- 
motion or dismissal of school personnel, 
and that black elementary school princi- 

pal who was the senior administrator in 
the county system was demoted to posi- 
tion of assistant high school principal 
even though two other whites who had 

no experience serving as principal while 
school was in session were retained in 
principalships for which they were hired 
just prior to desegregation order demon- 
strated that the school board had en- 



CAMPBELL v. GADSDEN COUNTY DIST. SCHOOL BD. 4361 

gaged in discriminatory demotion of the 
black principal. 42 U.S.C.A. § 1981. 

12. Civil Rights ¢=13.17 
Black elementary school principal 

who demonstrated that he was discrimi- 
natorily demoted to position of assistant 
high school principal in connection with 
desegregation of school district was enti- 
tled to recover reasonable attorneys’ fees 
under statute allowing federal court to 
grant reasonable attorneys’ fees as part 
of costs upon entry of final order against 
a local educational agency under the 
Emergency School Aid Act. Emergency 
School Aid Act, § 718, 20 U.S.C.A. 
§ 1617; 42 U.S.C.A. § 1981. 

13. Civil Rights ¢=13.16 
Black elementary school principal 

who was demoted to position of assistant 
high school principal at the time that 
segregated school system was replaced 
by unitary school system was entitled to 
recover back pay. 42 U.S.C.A. § 1981. 

14. Civil Rights ¢=13.16 

Statute granting all citizens the 
same right to make and enforce con- 
tracts as is enjoyed by white citizens is 
broad enough to encompass back pay 
claims where a public entity has failed to 
treat a black in the same manner as 
similarly situated whites in the course of 
arranging its contractual relationships 
with employees. 42 U.S.C.A. § 1981. 

Appeals from the United States Dis- 
trict Court for the Northern District of 

Florida. 

* Of the U.S. Court of Customs and Patent Ap- 

peals, sitting by designation. 

1. Campbell originally sought class action re- 

lief, but this was denied by the District Court 

on the ground that the appropriate channel for 

securing class relief would be through inter- 

vention in the ongoing Gadsden County School 

Before GEWIN and AINSWORTH, 
Circuit Judges, and MARKEY,* Chief 
Judge. 

AINSWORTH, Circuit Judge: 

In the process of complying with a 
final desegregation order issued by the 
United States District Court for the 
Northern District of Florida in August 
of 1970, the Gadsden County School 
Board transferred Witt Campbell, a 
black, from a principalship at a black 
elementary school which was being 
phased out to an assistant principalship 

at a high school. Campbell subsequently 
instituted this action,! claiming that his 
reassignment was imposed on him in vio- 
lation of Singleton v. Jackson Separate 
Municipal School District, 5 Cir., 1969, 
419 F.2d 1211, cert. denied, 396 U.S. 
1082, 90 S.Ct. 612, 24 L.Ed.2d 530 (1970), 
which prohibits discriminatory demotion 
or dismissal of faculty and professional 
staff displaced by the unification of pre- 
viously segregated school systems, and 
that accordingly, he is entitled to a posi- 
tion as an elementary school principal, 
back pay, compensatory seniority, and 
reasonable attorneys’ fees. 

Campbell has been employed by the 
Gadsden County Board of Public Instruc- 
tion since 1934, and served as principal 
in a series of black elementary schools 
until the County’s dual school system 
was eliminated in 1970. Although he 
had thirty years of administrative expe- 
rience and was the senior administrator 
in the Gadsden County system at the 
time of the final desegregation order, he 

desegregation case. In the interest of efficien- 

cy, the District Court retained jurisdiction over 

Campbell’s particularized complaint under Sin- 

gleton v. Jackson Separate Municipal School 

District, 5 Cir., 1969, 419 F.2d 1211, cert. de- 
nied, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 
530 (1970). 



4362 

was transferred in order to avoid “bump- 
ing” either of two recently appointed 
white principals, neither of whom had 
actually administered an elementary 
school as principal while school was in 
session at the time of Campbell’s trans- 
fer. The District Court issued a perma- 
nent injunction, ordering the Gadsden 
County District School Board, the Super- 
intendent of Schools, and individual 
members of the Board to assign Camp- 
bell to a position as an elementary school 
principal beginning with the 1975-76 
school year. A motion for stay of the 
injunction pending appeal was denied. 
The court further held that Campbell 
was entitled to attorneys’ fees, but de- 
nied his claim for back pay. Maintain- 
ing that no Singleton violation occurred, 
appellants challenge the award of in- 
junctive relief and attorneys’ fees; ap- 
pellee has preserved the back pay issue 
by appropriate cross appeal. 

2. Circuit court analysis on the issue of wheth- 

er or not school districts or state (or state 

related) universities are ‘persons’ under sec- 

tion 1983 has not been uniform. Compare Ad- 

kins v. Duval County School Bd., 5 Cir., 1975, 

511 F.2d 690; and Sellers v. Regents of Uni- 
versity of California, 9 Cir., 1970, 432 F.2d 493, 

500, cert. denied, 401 U.S. 981, 91 S.Ct. 1194, 

28 L.Ed.2d 333 (1971) (indicating that section 

1983 jurisdiction is improper) with Aurora Ed- 

ucation Ass'n East v. Board of Education of 

Aurora Pub. School Dist. No. 131, 7 Cir., 1974, 

490 F.2d 431, 435, cert. denied, 416 U.S. 985, 

94 S.Ct. 2388, 40 L.Ed.2d 762 (1974) (suggest- 

ing that section 1983 jurisdiction is available). 

3. 28 U.S.C. § 1343 provides: 

The district courts shall have original jur- 

isdiction of any civil action authorized by 

law to be commenced by any person: 

(3) To redress the deprivation, under color 

of any State law, statute, ordinance, regula- 

tion, custom or usage, of any right, privilege 

or immunity secured by the Constitution of 

the United States or by any Act of Congress 

providing for equal rights of citizens or of all 
persons within the jurisdiction of the United 
States; 

CAMPBELL v. GADSDEN COUNTY DIST. SCHOOL BD. 

I. Jurisdiction 

[1-7] As a preliminary matter, appel- 
lants contend that the District Court was 
without jurisdiction to adjudicate Camp- 
bell’s claim. They argue that City of 
Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 
2222. 37 L.Ed.2d 109 (1973), which held 
that injunctive relief was not available 
against a city under 42 U.S.C. § 1983, 

since a city is not a “person” for pur- 

poses of that statute, and Adkins v. Du- 
val County School Board, 5 Cir., 1975, 
511 F.2d 690, which held that school 
boards are not “persons” for purposes of 
section 1983, preclude federal court juris- 
diction in this case.? This line of reason- 
ing overlooks the fact that jurisdiction 
under 28 U.S.C. § 1343 3 was asserted not 
only in connection with a section 1983 
cause of action! but also in conjunction 
with claims arising directly under the 
Fourteenth Amendment of the United 

(4) To recover damages or to secure equi- 

table or other relief under any Act of Con- 

gress providing for the protection of civil 

rights, including the right to vote. 

(Emphasis supplied). Because of the phrase 

“civil action authorized by law,” section 1343 

jurisdiction is unavailable in the absence of an 
appropriate cause of action. In this sense, 

failure to state a claim under sections 1981, 

1983 and 1985 or other appropriate legal au- 

thority has the effect of depriving federal 

courts of subject matter jurisdiction under sec- 

tion 1343. See Harkless v. Sweeny Indep. 
School Dist., S.D.Tex., 1975, 388 F.Supp. 738, 

745 & n. 4. 

4. 42 U.S.C. § 1983 provides: 

Every person who, under color of any stat- 

ute, ordinance, regulation, custom, or usage, 

of any State or Territory, subjects, or causes 

to be subjected, any citizen of the United 

States or other person within the jurisdiction 

thereof to the deprivation of any rights, priv- 

ileges, or immunities secured by the Consti- 

tution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or 

other proper proceeding for redress. 



CAMPBELL v. GADSDEN COUNTY DIST. SCHOOL BD. 

‘States Constitution 3 and under 42 U.S.C. 
§§ 19816 and 1985.7 In light of several 
recent cases sustaining section 1343 jur- 
isdiction with regard to section 1981 
claims alleging racial discrimination? in 
employment, see, e. g., Johnson v. Rail- 
way Express Agency, Inc., 421 U.S. 454, 
95 S.Ct. 1716, 1720 & n. 6, 44 L.Ed.2d 
295, (1975); Kelly v. West Baton Rouge 

5. Because we conclude that jurisdiction under 

section 1981 is available in this case, we need 

not consider whether the Fourteenth Amend- 

ment creates ex proprio vigore a cause of ac- 

tion capable of serving as the basis of section 

1343 jurisdiction under the circumstances of 

this case. See note 3, supra; cf. Paul v. Davis, 

— U.S. . » 98 S.Ct. 1135, 1157, 47 

L.Ed.2d 405, 44 U.S.L.W. 4337, 4339 (1976). 

6. 42 U.S.C. § 1981 provides: 

All persons within the jurisdiction of the 

United States shall have the same right in 
every State and Territory to make and en- 

force contracts, to sue, be parties, give evi- 

dence, and to the full and equal benefit of all 

laws and proceedings for the security of per- 

sons and property as is enjoyed by white 

citizens, and shall be subject to like punish- 

ment, pains, penalties, taxes, licenses, and 

exactions of every kind, and to no other. 

7. Section 1985 provides, in substance, that 

persons who conspire to deprive individuals of 

their civil rights may recover damages against 
any one or more of the conspirators for the 
deprivation or injury suffered. Like section 

1983, section 1985 derives from the Ku Klux 
Klan Act of 1871, and liability is limited by its 
language to “persons.” Section 1985 jurisdic- 

tion is thus no broader than that under section 
1983. 

Federal question jurisdiction was also asserted 

under 28 U.S.C. § 1331, but the record does 

not affirmatively establish the existence of an 

amount in controversy in excess of $10,000. 

Cf. Kenosha, supra, 412 U.S. at 514, 93 S.Ct. 
at 2227. 

8. The fact that these cases uniformly involve 

racial discrimination reflects a significant re- 

striction on the range of actions that may be 

brought under section 1981. In Jones v. 

Alfred H. Mayer Co., 392 U.S. 409, 413, 88 

4363 

Parish School Bd., 5 Cir., 1975, 517 F.2d 
194, 197; Cooper v. Allen, 5 Cir., 1974, 
493 F.2d 765, 766 n. 1; Penn v. Schlesin- 

ger, 5 Cir., 1973, 490 F.2d 700, 701-03, 
rev'd on other grounds, 5 Cir., 1974, 497 
F.2d 970 (en banc); Caldwell v. National 
Brewing Co., 5 Cir., 1971, 443 F.2d 1044, 
cert. denied, 405 U.S. 916, 92 S.Ct. 931, 
30 L.Ed.2d 785 (1972); Sanders v. Dobbs 

S.Ct. 2186, 2189, 20 L.Ed.2d 1189 (1968), while 

expounding the scope of section 1982, the 

companion section to section 1981, see note 9, 

infra, the Supreme Court was careful to note 
that 

“[w]hatever else it may be, 42 U.S.C. § 1982 

is not a comprehensive open housing law. 

In sharp contrast to the Fair Housing Title 

(Title VIII) of the Civil Rights Act of 1968, 

the statute in this case deals only 

with racial discrimination and does not ad- 

dress itself to discrimination on grounds of 

religion or national origin.” 

Our court has construed section 1981 broadly 

enough to embrace claims regarding employ- 

ment discrimination on the basis of alienage. 

Guerra v. Manchester Terminal Corp., 5 Cir., 

1974, 498 F.2d 641, 653-55. It should be not- 

ed, however, that the discrimination against 

Mexicans involved there has strong racial 

overtones. See generally Greenfield v. Kates, 

Mexican Americans, Racial Discrimination, 

and the Civil Rights Act of 1866, 63 Calif.L. 
Rev. 662 (1975). The fact that racial discrimi- 
nation is a key component in a section 1981 
cause of action is apparent from our recent 
decision in McDonald v. Sante Fe Trail Trans- 
portation Co., 5 Cir., 1975, 513 F.2d 90, cert. 
granted, — U.S. ——, 96 S.Ct. 770, 46 
L.Ed.2d 634 (1976), in which we held that sec- 
tion 1981 confers no actionable rights on white 
persons. Thus, section 1981 is available to a 
much narrower class of potential litigants than 
section 1983, and is designed primarily to rem- 
edy a limited range of civil rights infractions in 
which racial animus is implicated. In view of 
the fact that section 1981 has more restricted 
applicability than section 1983, the differences 
in statutory language that limit liability under 
section 1983 to “persons” but fail to similarly 
confine section 1981 liability, see notes 4 and 
6, supra, do not seem unreasonable. Section 



4364 CAMPBELL v. GADSDEN COUNTY DIST. SCHOOL BD. 

Houses, Inc., 5 Cir., 1970, 431 F.2d 1097} 
we affirm the District Court’s holding 
that there was jurisdiction with regard 
to Campbell’s claims against both the in- 
dividual defendants and the School 

1981 allows a limited class of persons broader 

access to relief for particularly serious (i. e., 

racially discriminatory) civil rights violations. 

We do not interpret the District Court’s find- 

ing that “[t]he re-assignment of plaintiff was 

not a result of a pattern or practice of discrim- 

ination” (emphasis supplied) as a holding that 

no racial discrimination was involved in the 

reassignment. To the contrary, its holding 

that the reassignment violated Singleton im- 

plies a finding of racial discrimination in 
Campbell’s case, since Singleton enjoins only 

discriminatory demotions or dismissals in 

carrying out staff reductions necessitated by 

desegregation. 

9. The availability of a section 1981 cause of 

action to remedy employment discrimination 

such as that suffered by Campbell here is sup- 

ported by parallel developments in cases 

brought under section 1982. Section 1982 dif- 

fers from section 1981 primarily in that it pro- 

scribes racial discrimination in the sale or 

rental of property, whereas section 1981 pro- 

hibits such discrimination in the making and 

enforcing of contracts and in a number of re- 

lated contexts in which persons may be de- 

prived of “the full and equal benefit of all laws 
and proceedings . . . enjoyed by white 

citizens.” Just as section 1982 forbids dis- 

criminatory exclusion of blacks from available 

housing, see Jones v. Alfred H. Mayer Co., 

supra, so section 1981 proscribes discriminato- 

ry exclusion of blacks from available employ- 

ment contracts and contract terms. See John- 

son v. Railway Express Agency, Inc., 421 U.S. 

454, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 
(1975); Johnson v. Goodyear Tire & Rubber 

Co., 5 Cir., 1974, 491 F.2d 1364; Comment, 

Racial Discrimination in Employment Under 

the Civil Rights Act of 1866, 36 U.Chi.L.Rev. 

615, 617 (1969). See also Cody v. Union Elec- 

tric, 8 Cir., 1975, 518 F.2d 978 (though claim 
that public utility required blacks to pay a 

higher security deposit than whites was not 

cognizable under section 1983 due to lack of 

state action, it did state a cause of action un- 

der section 1981); Olzman v. Lake Hills Swim 

Club, Inc., 2 Cir., 1974, 495 F.2d 1333, 1339-40 
(section 1981 bars discriminatory exclusion of 

black guests from a swimming club) (alterna- | 

tive holding). 

0. Neither our prior decisions nor those of the 

Supreme Court rule out the possibility of ob- 

taining section 1983 relief which is not, in sub- 

stance, relief from a “non-person” under the 

statute. Kenosha involved an action seeking 

Board under section 1981 and section 

1343. 

[8] Appellants further contend that 
Campbell’s claims for back pay and at- 

As the Supreme Court has noted in Tillman v. 

Wheaton-Haven Recreation Ass’n, Inc., 410 

U.S. 431, 43940 & n. 11, 93 S.Ct. 1090, 1095 
& n. 11, 35 L.Ed.2d 403 (1973), “[i]n light of 
the historical interrelationship between § 1981 

and § 1982 [the operative language of both 

sections is traceable to the Civil Rights Act of 

April 9, 1866, c. 31, § 1, 14 Stat. 27], we see no 

reason to construe these sections differently” 

—at least in contexts where an exemption 

from the nondiscrimination requirements of 
the statutes is being asserted. See also Lar- 

son, The Development of Section 1981 as a 

Remedy for Racial Discrimination in Private 

Employment, 7 Harv.Civ. Rights-Civ.Lib.L.Rev. 

56, 60-61 (1972). Courts have repeatedly held 
that “§ 1982 is not a ‘mere prohibition of state 

laws establishing or upholding’ racial discrimi- 
nation in the sale or rental of property but, 

rather, an ‘absolute’ bar to all such discrimina- 

tion, private as well as public, federal as well 

as state.” District of Columbia v. Carter, 409 

U.S. 418, 422, 93 S.Ct. 602, 605, 34 L.Ed.2d 613 
(1973) (emphasis in original); see Gautreaux 

v. Chicago Housing Authority, 7 Cir., 1974, 

503 F.2d 930, aff'd sub nom. Hills v. 

Gautreaux, — U.S. , 96 S.Ct. 1538, 47 

L.Ed.2d 792, 44 U.S.LW. 4480 (1976) (claim 
brought under both section 1981 and section 

1982); Sullivan v. Little Hunting Park, Inc., 

396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 
(1969); Jones v. Alfred H. Mayer Co., supra; 

Hurd v. Hodge, 334 U.S. 24, 68 S.Ct.:847, 92 
L.Ed. 1187 (1948); Penn v. Schlesinger, 5 Cir., 
1973, 490 F.2d 700, 702, revd on other 

grounds, 5 Cir., 1974, 497 F.2d 970 (en banc); 

Jennings v. Patterson, 5 Cir., 1974, 488 F.2d 
436, 441-42. See also Greenfield & Kates, su- 

pra note 8, at 664; Larson, supra, at 57. Sec- 

tion 1981 relief seems particularly appropriate 

where, as here, the discrimination complained 

of arises directly from the failure to afford a 

black the same consideration as white citizens 

in the process of structuring new employment 

contracts necessitated by desegregation. See 

ent, supra, 36 U.Chi.LRev. at 617-19. 



CAMPBELL v. GADSDEN COUNTY DIST. SCHOOL BD. 

torneys’ fees are barred by the Eleventh 
Amendment in accordance with Edelman 
v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 
L.Ed.2d 662 (1974). The District Court 
apparently accepted this argument, at 
least with respect to the back pay issue, 
since its denial of back pay was predicat- 
ed on Edelman concerns. As the Su- 

preme Court in Edelman was careful to 

note, however, 

a county does not occupy the same 
position as a State for purposes of the 
Eleventh Amendment. arte 
[While county action is generally 

state action for purposes of the Four- 

| = 

injunctive relief against a city, and Adkins v. 

Duval County School Board, 5 Cir., 1975, 511 

F.2d 690, involved actions brought solely 

against school boards. As we indicated in Ad- 

kins, 

the trial court could not, of course, have 

dismissed the suits for failure to allege a 

proper jurisdictional basis . . . [if] 

there [had] been individual party defendants, 

whom this Court has previously held to be 

‘persons’ for purposes of § 1983 

511 F.2d at 696. The individual defendants 

named in Campbell’s suit are “persons” within 

the meaning of section 1983. See, e. g., Goss 

v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 

L.Ed.2d 725 (1975); Sterzing v. Fort Bend In- 

dependent School Dist., 5 Cir., 1974, 496 F.2d 

92, 93 n. 2. Appellants argue, however, that a 

suit brought against individual board members 

in their official capacity is indistinguishable 

from a suit against the board itself. While it 

is clear that we lack jurisdiction over claims 
for injunctive relief brought nominally against 

public officials in a thinly disguised effort to 

circumvent the ‘‘person” requirement of sec- 

tion 1983, Muzquiz v. City of San Antonio, 5 

Cir., 1976, 528 F.2d 499 (en banc); Warner v. 

Board of Trustees of the Police Pension Fund, 

5 Cir., 1976, 528 F.2d 505 (en banc), it does 

not follow that section 1983 relief is never 

available against public officers acting in their 

official capacities. See McGill v. Parsons, 5 

Cir., 1976, 532 F.2d 484, n. 1 [1976]; Reeves v. 

City of Jackson, 5 Cir.,, 1976, 532 F.2d 491 

[1976]; Thurston v. Dekle, 5 Cir.,, 1976, 531 

4365 

teenth Amendment, a county defend- 
ant is not necessarily a state defend- 
ant for purposes of the Eleventh 

Amendment. 

415 U.S. at 667 n. 12, 94 S.Ct. at 1358 n. 
12. Our post-Edelman cases involving 

actions for retrospective monetary relief 
against county school boards and similar 
entities have held that the Eleventh 

Amendment does not bar such awards so 

long as the entities sued are locally con- 

trolled, essentially local in character, and 

the funds to defray the award would not 

be derived primarily from the state trea- 

F.2d 1264 [1976]; Gray v. Union County Inter- 

mediate Education Dist., 9 Cir., 1975, 520 F.2d 

803, 805; Harper v. Kloster, 4 Cir., 1973, 486 

F.2d 1134, 1137-38. In Muzquiz, the suit was, 

in substance, an action against an impermissi- 

ble party. The question whether ‘a section 

1983 action will lie and whether section 

1343(3) jurisdiction will attach hinges not on 

the nature of the relief sought (e. g., equitable 

or legal), but on whether or not the action is in 

substance an action against a “person” within 

the meaning of the statute. See Muzquiz, su- 

pra, 528 F.2d at 500-01. 

While section 1983 would thus suffice as a 

basis of jurisdiction if Campbell’s claim was 
merely a request for equitable reinstatement in 

a principalship, it is not adequate with regard 

to his claims for back pay and attorneys’ fees. 

Relief in the form of restitution or damages is 

not available against officers of an entity 

which is a “non-person” under section 1983. 

Thurston v. Dekle, supra; Muzquiz, supra. 

Thus, Campbell would be unable to recover 

back pay under section 1983. See also Monell 

v. Department of Social Services of the City of 

New York, 2 Cir., 1976, 532 F.2d 259, [1976]. 
Campbell’s claim for attorneys’ fees is predi- 

cated on 20 U.S.C. § 1617, see note 2, infra. 

Under this section, attorneys’ fees may be 

awarded as costs “[u]pon the entry of a final 

order by a court of the United States against a 

local educational agency.” Such a “final or- 
der” cannot be entered by a federal court act- 

ing under section 1983. See Adkins v. Duval 

County School Bd., supra. 



CAMPBELL v. G 4366 

sury. Adams v. Rankin County Board of 
Education, 5 Cir., 1975, 524 F.2d 928, 
929; Hander v. San Jacinto Junior Col- 
lege, 5 Cir., 1975, 519 F.2d 273, 279-80. 
See also Incarcerated Men of Allen 
County Jail v. Fair, 6 Cir., 1974, 507 F.2d 
281, 287; Miller v. Carson, M.D.Fla., 
1975, 401 F.Supp. 835, 848 n. 3; Wright 
v. Houston Indep. School Dist., S.D.Tex., 
1975, 393 F.Supp. 1149, 1151-58; Smith 
v. Concordia Parish School Bd., W.D.La., 
1975, 387 F.Supp. 887, 891; Note, Dam- 
age Remedies for Constitutional Viola- 
tions, 89 Harv.L.Rev. 922, 931-32 & n. 57 
(1976). Our analysis of the nature of 
Florida school boards in the context of 
determining their similarity to munici- 
palities is sufficient to convince us that 
they are not the type of entities which 
are sheltered by the Eleventh Amend- 
ment. See Adkins v. Duval County 
School Board, supra, at 693. The lower 
court accordingly erred in holding that 
Edelman precluded consideration of 
Campbell’s back pay claim. Parallel rea- 
soning establishes our authority to con- 
sider Campbell’s request for reasonable 
attorneys’ fees. 

II. The Singleton Claim 

[9] Appellants attack Campbell’s 
claim to a position as an elementary 
school principal under Singleton v. Jack- 
son Separate Municipal School District, 5 
Cir., 1969, 419 F.2d 1211, cert. denied, 
396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 
530 (1970), on two grounds. First, they 
maintain that Campbell’s reassignment 
as an assistant principal of a high school, 
far from being a “demotion” within the 
meaning of Singleton, was actually a 
promotion, and thus that Campbell suf- 

fered no cognizable Singleton injury. 
Second, they contend that even if the 

NED lel 
SDEN COUNTY DIST. SCHOOL BD. 

reassignment did constitute a demotion, 
no elementary school principalships have 
become available since the 1970 desegre- 
gation order was entered, and that at 
most, Singleton requires them to offer 
Campbell a principalship when a vacancy 
occurs. Neither of these arguments is 
sound. 

In Singleton, “demotion” was defined 
as 

any re-assignment (1) under which the 
staff member receives less pay or has 
less responsibility than under the as- 
signment he held previously, (2) which 
requires a lesser degree of skill than 
did the assignment he held previously, 
or (3) under which the staff member is 
asked to teach a subject or grade other 
than one for which he is certified or 
for which he has had substantial expe- 
rience within a reasonably current pe- 
riod. 

419 F.2d at 1218. The District Court 
correctly applied these criteria in deter- 
mining that Campbell had been demoted. 
Although Campbell received $300 more 
than an elementary school principal with 
comparable seniority during his first 
year as Assistant Principal and Desegre- 
gation Specialist at Chattahoochee High 
School, he earned $200 less in 1971-72, 
$500 less in 1972-73, and $500 less in 

1973-74. In addition, Chattahoochee 
High was located approximately 22 miles 
from Campbell’s home, which necessitat- 
ed increased expenditure of time and 
money in getting to and from school. 
The new position also carried considera- 
bly less responsibility and required less 
skill than the prior principalship. Camp- 

bell no longer had responsibility for se- 
lecting and hiring faculty, making teach- 
er assignments, presiding over faculty 
meetings, or officiating at other ceremo- 



CAMPBELL v. GADSDEN COUNTY DIST. SCHOOL BD. 

nial events. As of September 1973, few- 
er pupils were enrolled at Chattahoochee 
than had been enrolled in Campbell’s ele- 
mentary school. Finally, the District 
Court found that an elementary school 
principalship was more prestigious, both 
in general and in Campbells specific 
case, than an assistant principalship at 
any level. The lower court thus did not 
err in concluding that Campbell had suf- 
fered a demotion as defined in Singleton. 

[10] Appellants’ second argument 
misconceives the extent or protection af- 
forded to those whose positions are af- 
fected by desegregation orders. It as- 
sumes that obligations under Singleton 
accrue only after integration-related dis- 
missals or demotions have occurred and 
that compliance consists merely of giving 
those displaced priority in filling equiva- 
lent positions which subsequently become 
available. While this is certainly part of 
what Singleton demands! the mandate 
in the case is much broader. It requires 
that if, as a result of the creation of a 
unitary school system, 

There is to be a reduction in the num- 
ber of principals, teachers, teacher- 
aids, or other professional staff em- 
ployed by the school district which will 
result in a dismissal or demotion of 
any such staff members, the staff 
member to be dismissed or demoted 
must be selected on the basis of objec- 
tive and reasonable non-discriminatory 
standards from among all the staff of 
the school district. Prior to 
such a reduction, the school board will 
develop or require the development of 
nonracial objective criteria to be used 

11. Specifically, Singleton provides that 

[1}f there is any [desegregation re- 

lated] dismissal or demotion, no staff vacan- 

cy may be filled through recruitment of a 

person of a race, color, or national origin 

different from that of the individual dis- 

4367 

in selecting the staff member who is 

to be dismissed or demoted. These cri- 
teria shall be available for public in- 
spection and shall be retained by the 
school district. The school district also 
shall record and preserve the evalua- 
tion of staff members under the crite- 
ria. Such evaluation shall be made 
available upon request to the dismissed 
or demoted employee. 

419 F.2d at 1218 (emphasis added). 

[11] After reviewing the record in 
Campbell’s case, it is clear that the ap- 
pellants failed to comply with these re- 
quirements in reassigning Campbell. As 
the District Court found, the school 
board has never developed written, ob- 
jective, nonracial criteria to be used in 
connection with demotion or dismissal of 
school personnel. More important than 
appellants’ failure to promulgate such 
criteria, however, was its failure to se- 
lect the principal to be demoted “on the 
basis of objective and reasonable non-dis- 
criminatory standards from among all 
the staff of the school district.” 419 
F.2d at 1218 (emphasis added). In Unit- 
ed States v. Texas Education Agency, 5 
Cir., 1972, 459 F.2d 600, 607 n. 3, we 
suggested that appropriate objective cri- 

teria for determining which principal to 
displace in a Singleton situation included 
the degree or degrees held by the princi- 
pal and the number of years of experi- 
ence he or she had as a principal in the 
system being desegregated, as a princi- 
pal in any system, and in education other 
than as a principal. Under these crite- 
ria, Campbell should not have been de- 
moted. 

missed or demoted, until each displaced staff 

member who is qualified has had an oppor- 

tunity to fill the vacancy and has failed to 

accept an offer to do so. 

419 F.2d at 1218. 



4368 

As noted earlier, Campbell was the 
senior administrator in the Gadsden 
County system at the time the final de- 
segregation order was entered. He had 
over thirty years of experience as a 
school administrator, and had served 
during at least fifteen of those years as 
a principal. He has been certified as an 
elementary and secondary school princi- 
pal since 1952. By August of 1970, 
Campbell had more years of experience 
as a principal within the Gadsden Coun- 
ty system than most of the other princi- 
pals in the system had as educators in 
any capacity. The contrast between 
Campbell’s experience and that of the 
last two white principals to be hired be- 
fore entry of the final Gadsden County 
desegregation order is particularly sharp. 
The first of these, Charles D. Boyd, who 
was appointed on February 3, 1970 to an 
elementary school principalship com- 
mencing June 8, 1970, had served previ- 
ously as an assistant principal and had a 
total of four years of educational experi- 
ence. The second, Corbin W. Scott, who 
was hired just four days prior to entry 
of the integration order, had served pre- 
viously as a teacher and had seven years 
of experience. Neither had any experi- 
ence serving as principal while school 
was in session. In view of these facts, 
we conclude that the appellants decided 
to reassign Campbell only because his 
school was being phased out, and that 
this decision was made without any ef- 
fort to compare his objective qualifica- 
tions with those of other principals in 

12. 20 U.S.C. § 1617 provides: 

Upon the entry of a final order by a court 

of the United States against a local educa- 

tional agency, a State (or any agency there- 

of), or the United States (or any agency 

thereof), for failure to comply with any pro- 

vision of this chapter or for discrimination 

on the basis of race, color, or national origin 

in violation of title VI of the Civil Rights Act 

CAMPBELL v. GADSDEN COUNTY DIST. SCHOOL BD. 

the system in determining who should be 
demoted. We accordingly affirm the 
District Court's conclusion that Camp- 
bell’s rights under Singleton were violat- 
ed and its order that Campbell be placed 
in an elementary school principalship 
commencing with the 1975-76 school 
year. 

ITI. Attorneys’ Fees and Other Relief 

[12] The District Court held that 
Campbell was entitled to an award of 
attorneys’ fees, to be determined in ac- 
cordance with the guidelines of Johnson 
v. Georgia Highway Express, 5 Cir, 
1974, 488 F.2d 714. Campbell’s claim for 
such an award is predicated on a provi- 
sion of the 1972 Emergency School Aid 
Act, 20 U.S.C. § 1617, which allows a 

federal court, in its discretion, to grant a 
reasonable attorney’s fee as part of the 
costs upon entry of a final order against 
a local educational agency.? We have 
previously construed this provision as ap- 
plying in cases where Singleton viola- 
tions have been established. Ward v. 
Kelly, 5 Cir., 1975, 515 F.2d 908, 912; 
Thompson v. Madison County Board of 
Education, 5 Cir., 1974, 496 F.2d 682, 
689-90; see Johnson v. Combs, 5 Cir., 
1972, 471 F.2d 84, cert. denied, 413 U.S. 
922, 93 S.Ct. 3063, 37 L.Ed.2d 1044 
(1973). Our review of the record reveals 
no facts that indicate the proceedings in 
this case were not necessary to bring 
about compliance with Singleton and no 
special circumstances which would ren- 
der such an award unjust in this case. 

of 1964, or the fourteenth amendment to the 

Constitution of the United States as they 

pertain to elementary and secondary educa- 

tion, the court, in its discretion, upon a find- 

ing that the proceedings were necessary to 

bring about compliance, may allow the pre- 

vailing party, other than the United States, a 

reasonable attorney's fee as part of the 

costs. 



CAMPBELL v. GADSDEN COUNTY DIST. SCHOOL BD. 

See Northcross v. Board of Education of 
Memphis City Schools, 412 U.S. 427, 93 
S.Ct. 2201, 37 L.Ed.2d 48 (1973); Ward v. 
Kelly, supra, at 912; Henry v. Clarksdale 
Municipal Separate School Dist., 5 Cir., 
1973, 480 F.2d 583. Because the Gads- 
den County District School Board is not 
an entity protected by the Eleventh 
Amendment, as previously discussed, 
Edelman v. Jordan poses no bar to an 
award of attorneys’ fees, and the Dis- 
trict Court correctly concluded that they 

should be awarded. 

[13,14] Campbell is also entitled to 
an award of back pay and compensatory 
seniority, in accordance with prior cases 
which expressly consider the availability 
of such relief under section 1981, see, e. 

13. Few of our cases have expressly considered 

the availability of section 1981 as a basis for 

jurisdiction in Singleton-type cases, in part, no 

doubt, because prior to Kenosha and Adkins 

there was clear authority supporting jurisdic- 

tion with regard to back pay claims under sec- 

tion 1983. See, e. g., Harkless v. Sweeny Inde- 

pendent School Dist., 5 Cir., 1970, 427 F.2d 

319, cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 

L.Ed.2d 439 (1971). Since demotions and dis- 

missals effected by school boards inevitably 

constituted state action in the sense required 

for section 1983 jurisdiction, there was no 

need to assert jurisdiction under section 1981 

as well. As noted earlier, however, the Su- 

preme Court has breathed renewed life into 

sections 1981 and 1982 in the past decade. 

See, e. g., Supreme Court cases cited in note 9, 

4369 

g., Johnson v. Railway Express Agency, 

Inc, 421 U.S. 454, 95 S.Ct. 1716, 1720, 44 
L.Ed.2d 295 (1975); Guerra v. Manches- 
ter Terminal Corp., 5 Cir., 1974, 498 F.2d 
641; Johnson v. Goodyear Tire & Rubber 
Co., 5 Cir., 1974, 491 F.2d 1364; and with 
those, such as Singleton and its progeny, 
see, e. g., Ward v. Kelly, supra; Lee v. 
Macon County Board of Education, 5 
Cir., 1971, 453 F.2d 1104, 1114, in which 
section 1981 was available as an alterna- 
tive basis of jurisdiction.® Since the 
District Court failed to award back pay, 
we remand the case for a determination 
of the amount due to Campbell in this 
regard. 

AFFIRMED IN PART, REVERSED 
IN PART, AND REMANDED. 

supra. See also Johnson v. Goodyear Tire & 

Rubber Co., 5 Cir., 1974, 491 F.2d 1364, 1378. 

This revitalization of provisions derived from 

the 1866 Civil Rights Act has established the 

existence of a cause of action under section 

1981 which, though narrower in substance and 

in availability than that under section 1983, is 

broad enough to confer jurisdiction with re- 

gard to back pay claims where a public entity 

has failed to treat a black in the same manner 

as similarly situated whites in the course of 

arranging its contractual relationships with its 

employees. We do not view Kenosha or Ad- 

kins as completely undermining the jurisdic- 

tional foundation of the innumerable reinstate- 

ment and back pay cases that this court has 

handed down in the course of supervising 
school desegregation in the Deep South. 

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.