Morris v. Williams Brief for Appellants

    IN' T H E

llmtih (Bxvmit (tort nf Appals
E i g h t h  C i r c u i t

No. 12,887 
Civil

Susie M orris, for herself and for others similarly situated, 
Frances B. K ibbler, Intervener,

Appellants,
v.

R obert M. W illiams, Chairman; M urray O. R eed, Secre­
tary ; Mrs. W . P. M cD ermott ; M rs. W . F. R awlings ; 
Dr. R. M. Blakely and E. F. Jennings, Constituting 
the Board o f Directors o f the Little Rock Special School 
District and R ussell T. Scobee, Superintendent of 
Schools,

Appellees.

APPEAL PROM THE DISTRICT COURT OP THE UNITED STATES 
POR THE EASTERN DISTRICT OF ARKANSAS.

BRIEF FOR APPELLANTS.

Edward R. Dudley,
New York, New York,

J. R. Booker,
Little Rock, Arkansas,

T hurgood M arshall,
New York, New York,

W illiam  H. H astie, 
Washington, D. C.

Counsel for Appellants.

M yles A. K ibbler,
Little Rock, Arkansas,

O f Counsel.





I N D E X

PAGE

S tatem ent  of th e  C a s e _______ __________________________

S tatem ent  of F a c t s ______________________________________

Method of Fixing Salaries_____________________
New Teachers_____________________________
Old Teachers _____________________________
Policy of Board in the Past____________________
Bonus Payment _______________________________

S tatem ent  of P oints T o B e R elied U pon_______________

S tatem ent  of P oints T o B e A rgued and A uthorities 
R elied U p o n ___________________________________________

A rgument  ____________________________________

Introduction ________ 1_________________________
I. The Fourteenth Amendment Protects the In­

dividual Against All Arbitrary and Unrea­
sonable Classifications by State Agencies____

II. Payment of Less Salary to Negro Public 
School Teachers Because of Race Is in Vio­
lation of Fourteenth Amendment__________

III. The Policy, Custom and Usage of Fixing Sal­
aries of Public School Teachers in Little Rock 
Violates the Fourteenth Amendment________

IV. The So-Called Rating System in Little Rock 
Is Not an Adequate Defense to This Action.__

Conclusion  ________________________________________________

Appendix A ______________________________________
Appendix B ________ __________________________
Appendix C ______________________________

1
oa
4
4
7
8

10
11

14
18
18

20

27

32

45
56
57
64
74



11

CITATIONS.
Cases:

PAGE

Alston v. School Board of City of Norfolk, 112 F. (2d)
992 (1940); certiorari denied, 311 U. S. 693 (1940)„16,17

20,28
Buchannan v. Warley, 245 U. S. 60 (1917)___________ 14, 21
Chaires v. City of Atlanta, 164 Ga. 755, 139 S. E. 559

(1927) ___1______________________________________ 14,21
Chamberlain v. Kane, 264 S. W. 24 (1924)_________ _17, 48
Davenport v. Cloverport, 72 Fed. 689 (D. C. Ky. 

1896)______________________________________—..15, 21
Ex parte Virginia, 100 U. S. 339 (1880)______________  18
Guinn v. United States, 238 U. S. 347 (1915)__...______ 15, 24
Hale v. Kentucky, 303 U. S. 616 (1938)_______________  25
Hill v. Texas, 316 U. S. 401, 404 (1942)_____15,16,17,26, 32
Lane v. Wilson, 307 U. S. 268 (1939)__________ 14,15, 21, 24
McDaniel v. Board, 39 F. Supp. 638 (1941)___________  20
Mills v. Board of Education, et al., 30 F. Supp. 245

(1940) ___________________________________ 16,17,28,29
Mills v. Lowndes, et al., 26 F. Supp. 792 (1939)__16,17, 20

28, 29
Missouri ex rel. Gaines v. Canada, 305 U. S. 337

(1938) ______________________________________ 15,19, 21
Mitchell v. United States, 313 U. S. 80 (1941)________ 14, 21
Myers v. Anderson, 238 U. S. 368 (1915)______________  15
Neal v. Delaware, 103 U. S. 370 (1880)________ 15,16,25, 32
Nixon v. Condon, 286 U. S. 73 (1932)__________________ 14, 20
Norris v. Alabama, 294 IT. S. 591 (1935)_____________ 15, 25
Pierre v. Louisiana, 306 U. S. 354 (1939)______14,15, 20, 35
Boles v. School Board of City of Newport News, Civil 

Action No. 6 (1943), U. S. District Court for East­
ern District of Virginia, unreported_____________ 16, 30



PAGE

iii

Simpson v. Geary, et al., 204 Fed. 507, 512 (D. C. Ariz.
1913) ___________________________________________  21

Smith v. Texas, 311 TJ. S. 128, 85 L. Ed. 84-87 (1940)__15,26
State v. Bolen, 142 Wash. 653, 254 P. 445 (1927)_____18, 48
Steel v. Johnson, 9 Wash. (2d) 347, 358, 115 P. (2d) 145

(1941) --------------------j.____________________________17,48
Strauder v.. West Virginia, 100 U. S. 303 (1879)—.14,15, 20

21, 24
Thomas v. Hibbitts, et al., 46 F. Snpp. 368 (1942)—16, 20, 28

29, 36
Truax v. Raich, 239 TJ. S. 33 (1915)__________________15, 21
Yick Wo v. Hopkins, 118 U. S. 356_______________ 15,27, 38

Miscellaneous.

Flack, Adoption of 14th Amendment (1908), pp. 219,
223, 227 ________________________ ________________15,22

20 American Jurisprudence, Sec. 1027, p. 866_________  18
14 Stat. 27, April 9, 1866________ _____________________  22
16 Stat. 140, May 31, 1870____________________________  22
Reports and Hearings______________ _________________  19



■

. .



IN THE

Ittttefc BtnttB (Eirnttt GJmtrt nf Appeals
E ig h th  C ircuit

No. 12,887 

Civil

S usie M orris, for herself and for others similarly 
situated, F rances B. H ibbler, Intervener,

Appellants,
v.

R obert M. W illiam s , Chairman; M urray 0. R eed, 
Secretary; M rs. W. P. M cD e r m o tt ; M rs. W. F. 
R aw lin g s ; D r . R. M. B lakely  and E. F. J en ­
nings, Constituting the Board of Directors of the 
Little Rock Special School District and R ussell 
T. S cobee, Superintendent of Schools,

Appellees.

BRIEF FOR APPELLANTS.

P A R T  I.

Statement of the Case.

This is an appeal from a final judgment of the District 
Court of the United States, the Western Division of the 
Eastern District of Arkansas. The appellant, Susie Morris, 
on behalf of herself and all others similarly situated, filed 
an original complaint seeking a declaratory judgment, and 
a permanent injunction against the appellees, being the 
Superintendent of Public Schools, and the members of the 
School Board of Little Rock, Arkansas. The complaint



2

alleged that the appellees were maintaining a policy, cus­
tom and usage of paying Negro teachers and principals in 
the public schools of Little Rock, Arkansas, less salary than 
that paid to white teachers and principals in the public 
schools of Little Rock because of their race or color (R. 1-9). 
The appellees in their answer denied most of the essential 
allegations of the complaint (R. 9-13). A comparison of the 
allegations of the complaint and the answer is set out in 
Appendix A  to this brief. After a full trial on the merits, 
United States District Judge T homas C. T rimble entered 
a final judgment on March 10, 1944, that the complaint of 
the appellant be dismissed on the merits (R. 817-823). 
Findings of Fact and Conclusions of Law were filed (R. 
817-823). The opinion of the District Judge appears in the 
record at pages 800-817. Notice of appeal was promptly 
filed on March 11,1944 (R. 823).

On April 29, 1944, appellant Frances P. Hibbler, filed 
her motion and affidavit for leave to intervene (R. 826-829). 
Counsel for both original appellant and appellees consented 
to the entering of an order permitting intervention, which 
order was signed by the District Judge May 4, 1944 (R. 
828-829).

Statement of Facts.

As a result of the peculiar circumstances surrounding 
this type of case the majority of the testimony in the record 
is from the appellees who were first called by appellant as 
adverse witnesses. The documentary material available 
showed evidence of disparity in expenditures for public 
education, including teachers’ salaries, on the basis of race. 
The appellees denied that there was any discrimination be­
cause of race or color. The Superintendent considers only 
white teachers for positions in white schools and Negro 
teachers for positions in Negro schools and in making his



3

recommendations to the Personnel Committee, designates 
the teachers by schools so that the members of the Personnel 
Committee in considering the appointment and fixing of 
salaries of teachers are aware of the race of the teachers 
being considered (R. 192). In general the report from the 
Personnel Committee to the Board designates Negro teach­
ers by the word “ Negro”  and no designation beside the 
names of white teachers (R. 118). It is likewise admitted 
that the members of the Personnel Committee in consider­
ing teachers are aware of the race of the teachers being 
considered (R. 119). The salaries for public school teachers 
for the years 1941-1942 were not fixed on the basis of teach­
ing ability or merit (R. 192).

Appellants have prepared comparative tables of salaries 
paid white and Negro teachers based upon undisputed testi­
mony and these comparative tables are set forth in Appen­
dix B to this brief. These tables show a great disparity 
between the salaries of white and Negro teachers of equiva­
lent qualifications and experience.

Superintendent Scobee, first employed by the School 
Board of Little Rock in 1941, testified that since he had been 
Superintendent there had been no change in salaries with 
the exception of a few adjustments and that they had re­
mained much the same as when he became Superintendent 
(R. 183). He also testified that if the salaries prior to his 
administration had a differential based solely on the 
grounds of race and color, the same difference would exist 
at the present time (R. 183).

Superintendent Scobee testified further that he could not 
deny that the salaries fixed before his term of office were 
based on race or color (R. 192).

In the school district of which Little Rock is a part the 
per capita expenditure per white child was $53 and per col­



4

ored child was $37 for 1939-40. During the same period 
the revenue available was $47 per child. In Arkansas dur­
ing that period the average salary for elementary teachers 
was: white $526 and Negro $331; and for high school teach­
ers was $856 for white and $567 for Negro (R. 18-19).

All of the public schools in Little Rock, both white and 
Negro, are part of one system of schools and the same type 
of education is given in both the Negro and white schools 
(R. 182). The same textbooks and same courses of study 
are used in all schools (R. 191). All public schools are open 
the same number of days per year and the same number of 
hours per day (R. 183).

Method of Fixing Salaries.

The salaries of teachers are recommended by the super­
intendent to the Personnel Committee of the board after 
which a report is made by the Personnel Committee to the 
board for adoption (R. 21). Neither the board nor the Per­
sonnel Committee interviews the teachers (R. 31, 102). In 
the fixing of salaries from year to year the board does not 
check behind the recommendations of the superintendent 
(R. 56).

New Teachers.

Although all of the appellees denied that there was a 
salary “ schedule”  as such, the appellant produced a salary 
schedule for Negro teachers providing a minimum salary 
of $615 (R. 716). Superintendent Scobee denied ever hav­
ing seen such a schedule but admitted that since 1938 “ prac­
tically all”  new Negro teachers had been hired at $615. All 
new white teachers during that period have been hired at 
not less than $810 (R. 316). For years it has been the policy 
of the Personnel Committee to recommend for Negro teach­



5

ers lower salaries than for white teachers new to the sys­
tem (R. 36). This has been true for many years (R. 36). 
Other appellees admitted that all new Negro teachers were 
paid either $615 or $630 and all new white teachers were 
paid a minimum of $810 (R. 84, 87-88, 99, 189).

In 1937 the School Board adopted a resolution whereby 
a “ schedule”  of salaries was established providing that 
new elementary teachers, were to be paid a minimum of 
$810, junior high $910 and senior high $945 (R. 285, 286, 576- 
579). Although Superintendent Scobee denied that the 
word “ schedule”  actually meant schedule he admitted that 
since that time all white teachers had been employed at 
salaries of not less than $810 (R. 286-287).

The difference in salaries paid new white and Negro 
teachers is supposed to be based upon certain intangible 
facts which the superintendent gathers by telephone conver­
sations and letters in addition to the information in the 
application blanks filed by the applicants (R. 317-318). For 
example, two teachers were being considered for positions, 
one white and one Negro. The superintendent, following 
his custom, telephoned the professor of the white applicant 
and received a very high recommendation for her. He did 
not either telephone or write the professors of the Negro 
applicant. As a result he paid the white teacher $810 as an 
elementary school teacher, and the Negro teachers $630 as 
a high school teacher despite the fact that their professional 
qualifications were equal (R. 316-317). Superintendent Sco­
bee also admitted that where teachers have similar qualifi­
cations, if he would solicit recommendations for one and 
receive good recommendations and fail to do so for the 
other, the applicant whose recommendations he solicited 
and obtained would appear to him to be the better teacher 
(R. 317). He seldom sought additional information about



6

the Negro applicants (R. 327, 346), although personal inter­
views were used in the fixing of salaries and played a large 
part in determining what salary was to be paid (R. 323, 
326).

Superintendent Scobee testified that the employment 
and fixing of salaries of new teachers always amounted to 
a “ gamble”  (R. 322). He admitted that he had made sev­
eral mistakes as to white teachers and that although he was 
paying one white teacher $900 she was so inefficient he was 
forced to discharge her (R. 486). During the time he has 
been superintendent Mr. Scobee has never been willing to 
“ gamble”  more than $630 on any Negro teacher and during 
the same period has never “ gambled”  less than $810 on a 
new white teacher (R. 324). Some new white teachers are 
paid more than Negro teachers with superior qualifications 
and longer experience (R. 338).

One of the reasons given for the differential in salaries 
is that Negro teachers as a whole are less qualified (R. 39) 
and that the majority of the white teachers “ have better 
background and more cultural background”  (R. 39).

Since it is the general understanding that the board can 
get Negro teachers for less it has been the policy of the 
board to offer them less than white teachers of almost iden­
tical background, qualificaitons and experience (R. 120). 
Further explanations of why Negroes are paid less is that: 
“ They are willing to accept it, and we are limited by our 
financial structure, the taxation is limited, and we have to 
do the best we can”  (R. 121); and, that Negroes can live 
on less money than white teachers (R. 121). The president 
of the board testified that they paid Negroes less because 
they could get them for less (R. 23-24).

One member of the school board, in response to a ques­
tion: “ If you had the money would you pay the Negro



7

teachers the same salary as you pay the white teachers?”  
testified that: “ I don’t know, we have never had the
money”  (R. 59).

Old Teachers.

Comparative tables showing the salaries of white and 
Negro teachers according to qualifications, experience and 
school taught have been prepared from the exhibits filed in 
the case and are attached hereto as Appendix B, According 
to these tables no Negro teacher is being paid a salary equal 
to a white teacher with equal qualifications and experience. 
This fact is admitted by Superintendent Scobee (R. 497).

It is the policy of the appellees to pay high school 
teachers more salary than elementary teachers (R. 183). It 
is also the policy of the appellees to pay teachers with expe­
rience more than new teachers. It is admitted that the 
Negro teachers at Dunbar High School are good teachers 
(R. 191). However, the appellant and twenty-four other 
Negro high school teachers with years of experience are 
now being paid less than any white teacher in the system 
including newly appointed and inexperienced elementary 
teachers new to the system (R. 187). Superintendent Sco­
bee was unable to explain the reason for this or to deny 
that the reason might have been race or color of the teachers 
(R. 189, 192). He testified that he could not fix the salaries 
of Negro high school teachers on any basis of merit because 
“ my funds are limited”  (R. 192).

In past years Negro teachers have been employed at 
smaller salaries than white teachers and under a system 
of blanket increases over a period of years Negroes have 
received smaller increases (R. 87-88). The differential over 
a period of years has increased rather than decreased (R. 
88). One member of the board testified that “ I think there 
are some Negro teachers as good as some of the white



8

teachers, but I think there are some not as good”  (R. 88). 
Another board member testified that he thought there were 
some Negro teachers getting the same salary as white 
teachers with equal qualifications and experience (R. 104).

Policy of Board in Past.

Several portions of the minutes of the school board 
starting with 1926 were placed in evidence (R. 511-641). 
In 1926 several new teachers were appointed. The white 
teachers were appointed at salaries of from $90 to $150 a 
month. Negro teachers were appointed at from $63 to $80 
a month (R. 511-512). Later the same year the superin­
tendent of schools recommended that “ B. A. teachers with­
out experience get $100.00, $110.00, $115.00, according to 
the assignment to Elementary, Junior High, or Senior High 
respectively” . Additional white teachers were appointed 
at salaries of from $100 to $200 a month and at the same 
time Negroes were appointed at salaries of from $65 to $90 
(R. 514-515), in 1927 all white teachers with the exception 
of six were given a flat increase of $75 per year and all 
Negro teachers were given a flat increase of $50 per month 
(R. 517).

On May 14, 1928, the school board adopted a resolution: 
“ all salaries for teachers remain as of 1927-1928, and in 
event of the 18 mill tax carrying May 19, 1928, the white 
school teachers are to receive an. increase of $100 for 1928- 
29 and the colored teachers an increase of $50 for 1928- 
1929”  (R. 519). During the same year three white prin­
cipals were given increases of from $25 a month to $100 a 
year while one Negro principal was given an increase of $5 
a month (R. 520).

On May 21, 1929, the board adopted a resolution that: 
“ an advance of $100.00 per year be granted all white teach­



9

ers, and $50.00 per year for all colored teachers, subject to 
the conditions of the Teachers’ salary”  (R. 525). Prior to 
that time Negro teachers were getting less than white teach­
ers (R. 57). According to this resolution all white teachers 
regardless of their qualifications received increases of $100 
each while all Negro teachers were limited to increases of 
$50 each (R. 57). It was impossible for a Negro teacher 
to get more than a $50 increase regardless of qualifications 
(R. 57). One reason given for paying all white teachers a 
$100 increase and all Negro teachers $50 was that at the 
time the Negro teachers were only getting about half as 
much salary as the white teachers (R. 58).

On April 30, 1932, all teachers’ salaries were cut 10% 
(R. 543). On June 19,1934, a schedule of salaries for school 
clerks was established providing $50 to $60 a month for 
white clerks and $40 to $50 a month for colored clerks (R. 
560). It was also decided that: “ white teachers entering 
Little Rock Schools for 1933-34 for the first time at a mini­
mum salary of $688.00, having no cut to be restored, be 
given an increase of $30 for the year 1934-35 (R. 560). On 
June 28,1935, at the time the appellant was employed white 
elementary teachers new to the system were appointed at 
$688 to $765 for elementary teachers and $768 for high 
school teachers while plaintiff and other Negro teachers 
were employed at $540 (R. 564-565).

On March 30, 1936, the school board adopted the follow­
ing recommendations: “ That the contracts for 1936-37 of 
all white teachers who are now making $832 or less be in­
creased $67.50, and all teachers above $832.50 be increased 
to $900, and that no adjustment exceed $900.” ; and “ that 
the contracts for 1936-37 of all colored teachers who now 
receive $655 or less be increased $45, and all above $655 be 
increased to $700, and that no adjustment exceed $700” .



10

It was also provided “ that the salaries of all white teachers 
who have entered the employ of the Little Rock School 
Board since above salary cuts, or whose salaries were so 
low as not to receive any cut, be adjusted $45.00 for 1935- 
36” ; and “ that the salaries of all colored teachers who have 
entered the employ of the Little Rock School Board since 
the above salary cuts, or whose salaries were so low as not 
to receive any cut, be adjusted $30.00 for 1935-36”  (R. 567- 
568).

On April 25, 1936, it was decided by the school board: 
“ The contracts are to be the same as for 1935-36, except 
that those white teachers receiving less than $900.00, and 
all colored teachers receiving less than $700, who are to get 
$67.50 and $45 additional respectively, or fraction thereof, 
not to exceed $900 and $700, respectively” .

Bonus Payments.

In 1941 the school board made a distribution of certain 
public funds as a supplemental payment to all teachers 
which was termed by them a “ bonus” . This money was 
distributed pursuant to a plan adopted by the school board 
(R. 713-715, see Exhibits 3-A and 3-B). The plan was 
worked out and recommended by a committee of teachers in 
the public schools (R. 88-89). This committee was composed 
solely of white teachers (R. 194) because, as one member 
of the board testified: “ We don’t mix committees in this 
city”  (R. 89). Superintendent Scobee testified that he did 
not even consider the question of putting some Negro teach­
ers on the committee (R. 197-198).

Under this plan there were three criteria used in deter­
mining how many “ units”  a teacher was entitled to: one, 
years of experience, two, training, and three salary (see 
Exhibits 3-A and 3-B). After the number of units was de­



11

termined the fund was distributed as follows: each white 
teacher was paid $3.00 per unit and each Negro teacher was 
paid $1.50 per unit. After the number of units were de­
termined the sole determining factor as to whether the 
teachers received $3.00 or $1.50 per unit was the race of 
the teacher in question (R. 314).

After the 1941 distribution the Negro teachers went to 
Superintendent Scobee and protested against the inequality, 
yet, another supplemental payment was made in 1942 and 
the same plan was used (R. 197).

In 1937 the Negro teachers filed a petition with the 
appellees seeking to have the inequalities in salaries because 
of race removed. No action was taken other than to refer 
it to the superintendent (R. 573). In 1938: “ Petition signed 
by the Colored Teachers of the Little Rock Public Schools 
requesting salary adjustments, was referred to Committee 
on Teachers and Schools”  (R. 579). On May 27, 1939, a 
report was adopted by the school board which included the 
following: “ Petition of colored teachers for increase in 
pay. Disallowed”  (R. 585).

Statement of Points To Be Relied Upon.

I.

The District Court erred in that its findings of fact num­
bered 11, 15, 15-a and 17 (R. 819-820), state, contrary to 
the evidence, that there are not in force in the Public Schools 
of Little Rock Special School District schedules of salaries 
discriminatory against Negro teachers as a class (R. 23, 36, 
59, 84, 87-88, 100, 121, 122, 183, 189, 282, 285, 286, 314, 316, 
329, 347-349, 489, 511-641, 716).



12

II.

The District Court erred in that its findings of fact, num­
bered 14, 15, 15-a, 16, 17, 18, 19 and 20 (R. 820-821) state, 
contrary to the evidence, that teachers ’ salaries in the Pub­
lic School District are fixed and determined by the merits 
of the individual teacher without discrimination because of 
race or color, and that no policy, practice, custom or usage 
of such discrimination exists or has existed in the fixing of 
salaries (R. 23-24, 34, 36, 40, 59, 84-88, 120-122, 183, 187, 
189, 192, 282, 314, 316-320, 329, 347-349, 489, 497). '

III.

The District Court erred in making Conclusion of Law 
No. 3 which is in actuality a finding of fact concerning the 
absence of salary schedules, objectionable for the reasons 
set out in paragraph I of these points (R. 511-641, and cita­
tions under I, supra).

IV.

The District Court erred in making Conclusion of Law 
No. 4 which is in actuality a finding of fact concerning the 
absence of usage, policy, or custom on the part of the 
appellees, objectionable for the reasons set out in paragraph 
II of these points (R. 23, 34, 36, 57, 58, 59, 121,122, 183, 511- 
512, 514-515, 517, 519, 520, 525, 564-565, 567-568, 585, 713-715, 
and citations under II, supra).

V.

The District Court erred in making Conclusion of Law 
No. 4 in holding that rating sheets were admissible in evi­
dence as part of the records of the School District (R. 41, 
281, 282, 391, 408, 426, 430, 440, 441, 447, 473-474, 492).

The evidence admitted appears as: Appellees ’ Exhibits 
Nos. 3 and 5 (R. 183, 192, 768, 779).



13

Objection raised by appellant to Appellees’ Exhibit No. 
3 was stated as follows: “  . . . Our objection to this rating 
sheet is, in the first place, according to the testimony of Mr. 
Scobee it has never been presented to the Board. It is, 
therefore, not an official document of the School Board in 
the Little Bock School District. The second ground, we 
place it on, is that this is a self-serving declaration whether 
it be written or not is no objection. This is a self-serving 
declaration. It is admitted it was not for the purpose of 
fixing salaries, it is merely for the self-serving purpose of 
setting out their own ideas to the effect that the rating and 
the salaries have some connection . . . ”

The Court: “ It is understood these other people will 
testify this is the conclusion and there was a conclusion 
which can be brought in to substantiate his testimony. I 
will admit it for that purpose with the understanding that 
these other parties who aided him in coming to the conclu­
sion he has reached in making this schodule will be intro­
duced”  (R. 236).

Objection raised to Appellees’ Exhibit No. 5: “ I f  your 
Honor please, at this stage I object to them being admitted 
on the basis of Mr. Nash’s testimony. . . . Let’s find out 
from Mr. Scobee, and we object at this stage to it being 
introduced on the ground that there has been no proper 
foundation laid by the witness . . . but here we have some 
prepared by Mr. Scobee and some prepared by Mr. Hamil­
ton and now Mr. Scobee produces them and I certainly insist 
they are not admissible until Mr. Scobee has been intro­
duced.”

The Court: “ I will permit these for the time being”  
(B. 270).



14

VI.

The District Court erred in making Conclusion of Law 
No. 7 in that the necessary inference of racial discrimina­
tion which follows from the large actual differences between 
the salaries of all Negro teachers and any comparable white 
teachers was not overcome by any proof that such differ­
ences reflect the superior merits of white teachers (R. 18-19, 
23-24, 36, 84, 87-88, 99, 120-121, 189, 316-317, 323, 326, 
347, 497.

VII.

The District Court erred in entering judgment of dis­
missal of the complaint.

Statement of Points To Be Argued and 
Authorities Relied Upon.

I . T he  F ourteenth  A m endm en t  P rotects th e  I ndi­
vidual A gainst A ll  A rbitrary and U nreasonable Classifi­
cations by  S tate A gencies.

Exclusion from petit jury—Strauder v. West Virginia, 
100 U. S. 303 (1879).

Exclusion from grand jury—Pierre v. Louisiana, 306 
U. S. 354 (1939).

Exclusion from voting at party primary—Nixon v. Con­
don, 286 U. S. 73 (1932).

Discrimination in registration privileges—Lane v. Wil­
son, 307 U. S. 268 (1939).

Ordinance restricting ownership and occupancy of prop­
erty Buchanan v. Warley, 245 U. S. 60 (1917).

Ordinance restricting pursuit of vocation—Chaires v. 
City of Atlanta, 164 Ga. 755, 139 S. E. 559 (1927).

Refusal of Pullman accommodations—Mitchell v. United 
States, 313 U. S. 80 (1941).



15

Discrimination in distribution of public school fund— 
Davenport v. Cloverport, 72 Fed. 689 (D. C. Ky. 
1896).

Discrimination in public school facilities—Missouri ex 
rel Gaines v. Canada, 305 U. S. 337 (1938).

Simpson v. Geary, et al. (D. C. Ariz. 1913), 204 Fed. 507, 
512.

A . I n I nstances W here R acial D iscrimination  I s N ot 
A pparent F ederal C ourts H ave E stablished M easures op 
P roof S ufficient  to E stablish  R acial D iscrim ination .

Strauder v. West Virginia, supra.
Truax v. Raich, 239 U. S. 33 (1915).
May 31, 1870, 16 Stat. 140; April 9, 1866, 14 Stat. 27. 

See also Flack, The Adoption of the 14th Amendment 
(1908) pp. 219, 223, 227.

1. Measure of Proof Under Discriminatory Statutes 
Not Mentioning Race.

Guinn v. United States, 238 U. S. 347 (1915).
See also Myers v. Anderson, 238 U. S. 368 (1915).
Lane v. Wilson, 307 U. S. 268, 275 (1939).

2. Measure of Proof Where Discrimination Is Denied 
By State Administrative Officers.

Strauder v. West Virginia, supra.
Neal v. Delaware, 103 U. S. 370 (1880).
Norris v. Alabama, 294 U. S. 591 (1935); Hale v. Ken­

tucky, 303 U. S. 616 (1938).
Pierre v. Louisiana, supra.
Smith v. Texas, 311 U. S. 128, 85 L. Ed. 84-87 (1940). 
Hill v. Texas, 316 U. S. 401 (1942).
Hill v. Texas, 316 U. S. 401, 404.
Yiok Wo v. Hopkins, 118 U. S. 356.



16

II . P aym en t  of L ess S alary to N egro P ublic S chool 
T eachers B ecause of R ace I s I n  V iolation of F ourteenth  
A m en d m en t .

A. I n General .

Alston v. School Board of City of Norfolk, 112 F. (2d) 
992 (1940); certiorari denied, 311 U. S. 693.

See also Mills v. Lowndes, et al., 26 F. Snpp. 792 (1939). 
Mills v. Board of Education, et al., 30 F. Supp. 245 

(1940).
Thomas v. Hibbitts, et al., 46 F. Supp. 368 (1942).

B . M in im u m  S alary S chedules.

Mills v. Lowndes, et al., supra.
Mills v. Board of Education, supra.

C. E conomic T heory .

Thomas v. Hibbitts, et al., supra.

D . V ariable Salary S chedules.

Roles v. School Board of the City of Newport News, 
Civil Action No. 6 (1943), U. S. District Court for 
the Eastern District of Virginia, unreported.

Mills v. Board of Education, et al., supra.
Mills v. Lowndes, et al., supra.
Alston v. School Board of City of Norfolk, supra. 
Thomas v. Hibbitts, et al., supra.
Neal v. Delaware, supra.
Hill v. Texas, supra.



17

III. T he  P olicy, C ustom  and U sage of F ixing  Salaries 
of P ublic S chool T eachers in  L ittle E ock V iolates the 
F ourteenth  A m endm en t .

Mills v. Board of Education, et al., supra.
Alston v. School Board of City of Norfolk, supra.

A . General P olicy of A ppellees.

1. Cultural Background.

2. Economic Theory.

Thomas v. Hibbitts, et al., supra.

B. M in im u m  Salaries for N ew  T eachers.

1. Little Eock Salary Schedule.
Mills v. Lowndes, et al., supra.
Mills v. Board of Education, et al., supra.
Alston v. School Board of City of Norfolk, supra.
Hill v. Texas, supra.

C. S alaries of Older T eachers and F lat I ncreases.

1. Blanket Increases on Basis of Eace.

D . T he  D iscriminatory P olicy of D istributing  S upple­
m entary  S alary P aym ents on an  U nequal B asis B ecause, 
of E ace.

IV. T he  S o-called E ating  S ystem  in  L ittle  E ock I s 
N ot A dequate D efense to T his A ction .

A . T he  C omposite E ating  S heets Offered in  E vidence 
by  A ppellees S hould N ot H ave B een A dmitted in  E vi­
dence.

Steel v. Johnson, 9 Wash. (2d) 347, 115 P. (2d) 145, 150 
(1941).

See also Chamberlain v. Kane, 264 S. W. 24 (1924).



18

State v. Bolen, 142 Wash. 653, 254 P. 445.
20 American Jurisprudence, sec. 1027, p. 866.

B. T h e  C omposite R ating  S heets A re E ntitled  to N o 
W eight in  D eterm ining  W h eth er  th e  P olicy, C ustom and 
U sage oe F ixin g  S alaries in  L ittle R ock I s B ased on R ace.

1. Elementary Schools.

2. High Schools.

3. Ratings by Mr. Hamilton.

ARGUMENT.

Introduction.

The Fourteenth Amendment, passed in 1868, has not as 
yet achieved the purpose for which it was enacted: “ To 
raise the colored race from that condition of inferiority and 
servitude in which most of them had previously stood, into 
perfect equality of civil rights with all other persons within 
the jurisdiction of the states . . .  to take away all possi­
bility of oppression by law because of race or color.”  *

Despite the requirement of equal treatment wherever 
separate schools are maintained, it is clear that there is a 
gross disparity in the distribution of public funds for the 
maintenance of white and Negro schools:

“ Financial support of Negro schools must he in­
creased.—In addition to the general need for partial 
equalization of school opportunities among the States 
there has long been a need for more funds for Negro 
schools. This need has recently been brought into 
sharp focus by the rulings of Federal courts that 
under the Constitution no discrimination on the basis

* E x  parte Virginia, 100 U. S. 339 (1880).



19

of race or color may be made in the payment of 
teachers’ salaries.
The Supreme Court has said that laws providing 
separate schools for Negroes meet the requirements 
of the Constitution if equal privileges are provided 
for children of the separate races. In practice, how­
ever, equal facilities have been furnished only rarely. 
The States maintaining separate schools for Negroes 
are for the most part States with the least economic 
ability to raise funds for 'public education. The 
schools for white pupils have been financed with great 
difficulty and the schools for Negroes have been given 
even less support than those for the white pupils. In 
the Negro schools the buildings have been poor, 
school terms have been shorter, teachers’ salaries 
lower, and teacher loads heavier than in schools for 
white pupils. The white teachers and educational 
leaders have deplored this situation but have lacked 
the funds to correct it without levelling down the 
none-too-generous program of public education for 
white pupils.”  *

The United States Supreme Court has reaffirmed the 
principle that wherever separate schools are maintained 
they must be maintained on an equal basis without discrim­
ination because of race.f There no longer is any question 
that segregated school systems must offer equal treatment 
in all of the facilities of education. Because of the intimate 
relations of the teachers to the educational process, the pay­
ment of unequal salaries to Negro teachers because of race

* Report: Senate Committee Education and Labor on S. 1313
(Federal Assistance to the States for the Support of Public Educa­
tion) 77th Congress, Second Session (June 16, 1942). See also: 
Hearings Before Sub-Committee on Education and Labor, United 
States Senate, 78th Congress, First Session, on S. 637 (April 6, 7, 
and 8, 1943), pp. 98-102 on question of inequalities in educational 
facilities in the State of Arkansas, including the figures on average 
salaries of white and Negro public school teachers.

f  Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938).



20

imposes upon Negro pupils a major educational disadvan­
tage even as it imposes unfair and unlawful discrimination 
upon the teachers. The right of a Negro teacher to main­
tain this type of action has never been disputed.*

I.

The Fourteenth Amendment Protects the Indi­
vidual Against All Arbitrary and Unreasonable 

Classifications by State Agencies.
While a state is permitted to make reasonable classifi­

cations without violating the equal protection clause of the 
Fourteenth Amendment, such classifications must be based 
upon some real and substantial distinction, bearing a rea­
sonable and just relation to the things in respect to which 
such classification is imposed. Classification cannot be arbi­
trarily made without any substantial basis. Eace can never 
be used as a basis for classification.

This protection of the Fourteenth Amendment has been 
applied to protect injured persons in numerous types of 
cases in which the courts concluded that unreasonable clas­
sification and resultant discrimination were arbitrary and 
unlawful. /

Exclusion from petit jury—Strauder v. West Vir­
ginia, 100 TJ. S. 303 (1879);

Exclusion from grand jury—Pierre v. Louisiana, 
306 U. S. 354 (1939);

Exclusion from voting at party primary—Nixon 
v. Condon, 286 IT. S. 73 (1932);

* Alston v. School Board, 112 F. (2d) 992 1940), certiorari 
denied, 311 U. S. 693; Mills v. Lowndes et al., 26 F. Supp. 792 
(1939) _; Mills v. Board of Education, 30 F. Supp. 245 (1939); 
McDaniel v. Board, 39 F. Supp. 638 (1941 ); Thomas v. Hibhitts 
et al., 46 F. Supp, 368 (1942).



21

Discrimination in registration privileges—Lane 
v. Wilson, 307 U. S. 268 (1939);

Ordinance restricting ownership and occupancy 
of property—Buchannan v. Warley, 245 U. S. 
60 (1917);

Ordinance restricting pursuit of vocation—• 
Chaires v. City of Atlanta, 164 Ga. 755, 139 
S. E. 559 (1927);

Refusal of Pullman accommodations—Mitchell v. 
United States, 313 U. S. 80 (1941);

Discrimination in distribution of public school 
fund—Davenport v. Cloverport, 72 Fed. 689 
(D. C. Ky. 1896) ;

Discrimination in public school facilities—Mis­
souri ex rel. Gaines v. Canada, 305 U. S. 337 
(1938).

This doctrine has been invoked to prohibit unlawful dis­
crimination in employment. An Arizona statute which pro­
vided that all employers of more than five employees must 
employ not less than eighty percent qualified electors or 
native-born citizens of the United States was held unconsti­
tutional in a suit by an alien.1

‘ ‘ The right to contract for and retain employment 
in a given occupation or calling is not a right secured 
by the Constitution of the United States, nor by any 
Constitution. It is primarily a natural right, and it 
is only when a state law regulating such employment 
discriminates arbitrarily against the equal right of 
some class of citizens of the United States, or some 
class of persons within its judisdiction, as, for ex­
ample, on account of race or color, that the civil rights 
of such persons are invaded, and the protection of the 
federal Constitution can be invoked to protect the 
individual in his employment or calling. ’ ’

Simpson v. Geary, et at. (D. C. Ariz. 1913), 204 
Fed. 507, 512.

1 Truax v. Raich, 239 U. S. 33 (1915).



22

It is clear from the cases set out above that:

(1) State agencies such as appellees, cannot base dis­
criminations in the treatment of persons on classifications 
which are arbitrary and unreasonable and,

(2) Discrimination based on race or color is the clearest 
example of such unlawful classification.

A.

In Instances Where Racial Discrimination Is Not 
Apparent Federal Courts Have Established 
Measures of Proof Sufficient to Establish Racial 

Discrimination.

The Fourteenth Amendment was purposely enacted in 
general language, as were the provisions of the Civil Rights 
A ct2 passed to enforce the Amendment:

“ The Fourteenth Amendment makes no attempt 
to enumerate the rights it is designed to protect. It 
speaks in general terms, and those are as comprehen­
sive as possible. Its language is prohibitory; but 
every prohibition implies the existence of rights and 
immunities, prominent among which is an immunity 
from inequality of legal protection, either of life, lib­
erty, or property. Any State action that denies this 
immunity to a colored man is in conflict with the Con­
stitution. ’ ’

Strauder v. West Virginia, 100 U. S. 303 (1879).

Few states have continued statutes on their books which 
mention race or color. However, some states have at­
tempted to evade the purpose of the Thirteenth, Fourteenth 
and Fifteenth Amendments by (1) enacting statutes which

2 May 31, 1870, 16 Stat. 140; April 9, 1866, 14 Stat. 27. See also 
Flack, The Adoption of the 14th Amendment, pp. 219, 223, 227 
(1908).



23

discriminate against Negroes without mentioning race; or 
(2) passing statutes without mentioning race, yet broad 
enough to permit state officers to discriminate. The United 
States Supreme Court has met the problem of discrimina­
tory statutes by looking behind the statutes to discover the 
discrimination involved. Where state officers have admitted 
discrimination under broad statutes their action has been 
declared to be unlawful. On the other hand, where state 
officers have denied that they have been guilty of discrimina­
tion the complaining parties have, because of the very 
nature of the facts to be proved, been faced with the almost 
impossible task of proving deliberate discrimination. In 
the latter type of case the Supreme Court has established 
yardsticks of proof to establish discrimination.

(1)
Measure of Proof Under Discriminatory 

Statutes Not Mentioning Race.

The Fourteenth and Fifteenth Amendments were con­
sidered to strike from state constitutions and statutes the 
word “ white”  as a qualification for voting. Several states, 
however, adopted qualifications for voting which did not 
mention race, but which provided that all persons qualified 
to vote must be able to read and write. These statutes also 
provided that no person who was eligible to vote in 1866 or 
any time prior thereto and no lineal descendant of such 
person should be required to read and write. When such a 
statute from Oklahoma was presented to the United States 
Supreme Court it was declared to be unconstitutional and 
the Court in its opinion stated:

“ It is true it contains no express words of an 
exclusion from the standard which it establishes of 
any person on account of race, color or previous con­
dition of servitude prohibited by the Fifteenth



24

Amendment, but the standard itself inherently brings 
that result into existence since it is based purely upon 
a period of time before the enactment of the Fifteenth 
Amendment, and makes that period the controlling 
and dominant test of the right of suffrage.” 8

In 1916, a year after the decision last mentioned, the 
State of Oklahoma enacted another statute providing 
that all persons who voted in the general election of 
1914 automatically remained qualified voters, but that new 
registrants must register between April 30 and May 11, 
1916. The United States Supreme Court looked behind this 
obvious effort to-circumvent its prior ruling and declared 
the latter statute unconstitutional because the Fifteenth 
Amendment “ nullifies sophisticated as well as simple- 
minded modes of discrimination. It hits onerous pro­
cedural requirements which effectively handicap exercise of 
the franchise by the colored race although the abstract right 
to vote may remain unrestricted as to race.” 3 4 5

(2)
Measure of Proof Where Discrimination Is 
Denied by State Administrative Officers.

Wheie a state statute excludes Negroes from jury ser­
vice the decision as to its constitutionality raises no par­
ticular difficulties.3 However, few such statutes have been 
enacted since the Fourteenth Amendment. 'Most of the 
cases of discrimination have concerned the action of judicial 
or administrative officials in charge of the selection of 
jurors.

3 Guinn v. United States, 238 U. S. 347 (1915) 
v. Anderson, 238 U. S. 368 (1915).

4 Lane v. Wilson, 307 U. S. 268, 275 (1939).
5Strauder v, West Virginia, supra.

See also Myers



25

The difficulty of proving discrimination because of race 
is apparent. In the first place, there is a presumption of 
the legality of both grand and petit juries. There also 
exists the rule that if exclusion results, not because of race 
or color, but because of lack of other qualifications pre­
scribed by statute, there is no violation of the Fourteenth 
Amendment. How, then, is it possible to establish discrimi­
nation of race! If the defendant can get the officials who 
selected jurors to admit that they refused to summon mem­
bers of his race because of their race, he clearly presents 
sufficient proof. But it is almost impossible to get a state 
official to admit that he has violated the Constitution of the 
United States. In Neal v. Delaware,6 the United States 
Supreme Court recognized the rule that in a place where 
Negroes constitute a large proportion of the population, 
exclusion from jury service because of race is presumed 
from the fact that no Negroes have been called for jury ser­
vice over a long period of years. This rule has been uni­
formly followed by the United States Supreme Court.7

In a more recent case, Pierre v. Louisiana,s the lower 
Court, while dismissing the petit jury on the grounds of 
exclusion of Negroes, refused to quash the indictment on the 
grounds of exclusion of Negroes from the grand jury. The 
Supreme Court of Louisiana held that the evidence failed 
to establish that members of the Negro race were excluded 
from the grand jury or petit jury because of race, but 
that their exclusion was the result of a bona fide compliance 
with state laws. The United States Supreme Court, how­
ever, in reversing the decision, found that Negroes had been 
excluded from jury service by showing that there had been 
only one Negro called for jury service within the memory

6 103 U. S. 370 (1880).
7 See Norris v. Alabama, 294 U. S. 591 (1935); Hale v. Ken­

tucky, 303 U. S. 616 (1938).
*306 U. S. 354 (1939).



26

of the Clerk of Court; that according to the 1930 census 
Negroes constituted 49.3 per cent of the population and 70 
per cent of the Negro population was literate, and that there 
was no evidence that any appreciable number of Negroes in 
the Parish were guilty of a felony. The opinion of the 
Supreme Court therefore concluded: “ that the exclusion of 
Negroes from jury service was not due to their failure to 
possess the statutory qualifications” .

In one of the latest cases involving the exclusion of 
Negroes from jury service it appeared that in Harris 
County, Texas, only 5 of 384 grand jurors summoned during 
a seven year period were Negroes and only 18 of 512 petit 
jurors were Negroes. In reversing the conviction of a 
Negro under such a system, Mr. Associate Justice B lack  
stated:

“ Here, the Texas statutory scheme is not itself 
unfair; it is capable of being carried out with no 
racial discrimination whatsoever. But by reason of 
'the wide discretion permissible in the various .steps 
of the plan, it is equally capable of being applied in 
such a manner as practically to proscribe any group 
thought by the law’s administrators to be undesirable 
and from the record before us the conclusion is in­
escapable that it is the latter application that has 
prevailed in Harris County. Chance and accident 
alone could hardly have brought about the listing for 
grand jury service of so few Negroes from among 
the thousands shown by the undisputed evidence to 
possess the legal qualification for jury service . . , ” 8a

In the case of Hill v. Texas,* 9 the Jury Commissioners 
testified that they did not intentionally exclude Negroes 
from grand jury service; that they only considered excep-

8a Smith v. Texas, 311 U. S. 128, 85L. Ed. 84-87 (1940).
9 316 tJ. S. 401 (1942),



27

tional people for jury service and that they did not know 
of any Negroes who met that qualification. They testified 
further that they made no effort to ascertain whether there 
were Negroes qualified for grand jury service in the county. 
The Supreme Court held this to be discriminatory because 
“ discrimination can arise from the action of commissioners 
who exclude all Negroes whom they do not know to be 
qualified and who neither know nor seek to learn whether 
there are in fact any qualified to serve. ’ ’ 10

Thus wherever state officers, dealing with a large body 
of persons including substantial numbers of Negroes, have 
placed all or substantially all of the Negroes in a disadvan­
taged category and all or substantially all of the whites in 
a favored category, the Supreme Court has found this to 
suffice to prove discrimination in violation of the Fourteenth 
Amendment. The Court is not to be deceived by state 
officials who administer laws that are fair on their face 
“ with an evil eye and an uneven hand” .11 A  yardstick for 
proof is found commensurate with human experience. The 
Courts have kept abreast of legislative and administrative 
ingenuity of state officers seeking to evade the positive man­
dates of the Fourteenth Amendment.

II.

Payment of Less Salary to Negro Public School
Teachers Because of Race Is in Violation of 

Fourteenth Amendment.

In states where separate schools are maintained there 
has been a policy of paying Negro public school teachers 
less salary than white teachers because of race {supra, pp. 
18, 19). For years this policy was unchallenged by legal

10 316 U. S. 401, 404.
11 Yick W o v. Hopkins, supra.



28

action. However, since 1939 there has developed a line of 
decisions in federal courts firmly establishing the principle 
that the payment of unequal salaries to public school teach­
ers because of race or color is unconstitutional.

A.

In General.

In Alston v. School Board of City of Norfolk™ the Cir­
cuit Court of Appeals for the Fourth Circuit reversed a 
decision sustaining a motion to dismiss a complaint similar 
to the one in this case. The question was as to the legality 
of a salary schedule providing lower minimum and maxi­
mum salaries for Negro teachers than for white teachers 
in the public schools of Norfolk.

In the opinion for the Circuit Court of Appeals, Judge 
P ark  kb, after quoting pertinent paragraphs of the com­
plaint, stated:

"That an unconstitutional discrimination is set 
forth in these paragraphs hardly admits argument. 
The allegation is that the state, in paying for public 
services of the same kind and character to men and 
women equally qualified according to standards which 
the state itself prescribes, arbitrarily pays less to 
Negroes than to white persons. This is as clear a 
discrimination on the ground of race as could well be 
imagined and falls squarely within the inhibition of 
both the due process and the equal protection clauses 
of the 14th Amendment. . . . ”  (112 F. (2d) 992 995- 
996.) * 18

12 112 F. (2d) 992 (1940) ; certiorari denied, 311 U. S. 693.
18 See also Mills v. Lowndes, et al., 26 F. Supp. 792 (1939); 

Mills v .Board of Education et al., 30 F. Supp. 245 (1940) • Thomas 
v. Hibbitts et al., 46 F. Supp. 368 (1942).



29

B.

Minimum Salary Schedules.

The first Mills ease,14 involved the question of the con­
stitutionality of a statutory minimum salary schedule pro­
viding a lower minimum salary for Negro teachers than for 
white teachers of equal qualifications and experience. The 
second Mills case,15 involved a county salary schedule pro­
viding lower minimum salaries for Negro teachers and prin­
cipals than for whites. It should be noted, however, that 
in the second Mills case, the School Board paid salaries to 
white and Negro teachers higher than the minimum pro­
vided by their county scale and sought to justify the higher 
salaries for white principals on the grounds that the white 
principals had “ superior professional attainments and 
efficiency”  to that of the plaintiff. The School Board also 
sought to justify the disparity in salaries on the grounds 
that the Negro teachers as a group were inferior because 
Negro pupils made lower grades in a county-wide examina­
tion than white pupils. Both of these contentions were 
found to be unsubstantial and a permanent injunction was 
issued by the Court against discrimination because of race 
or color.

C.

Economic Theory.

In the case of Thomas v. Hibbitts, et al., supra, the local 
School Board of Nashville, Tennessee, sought to evade the 
prohibitions of the Fourteenth Amendment by establishing 
salary schedules on the basis of “ colored”  and “ white”  
schools. At the trial the lower scale for teachers in colored 
schools was explained on the grounds that Negro teachers

14 Mills v. Lowndes, et al., supra.

15 Mills v. Board of Education, supra.



30

did not need as much money for living purposes as white 
teachers. This “ economic theory”  was dispelled by the 
decision in that case granting a permanent injunction 
against the maintenance of the policy, custom and usage of 
paying teachers in colored schools less than the salaries 
paid teachers in white schools.

Following these reported decisions several school boards 
abolished all salary schedules which were discriminatory on 
their face and set up in place thereof either (1) variable 
salary schedules allowing discretion in the payment 
of salaries on the basis of merit, or (2) adoption of rating 
systems as a basis of payment of salaries.

D.

Variable Salary Schedules.

In the case of Roles v. School Board of the City of New­
port News,16 District Judge L u th er  W ay  disposed of the 
so-called variable schedule as follows:

“ With respect to the variable schedule which has 
been frequently referred to both in the testimony 
and arguments, the Court was at first favorably in­
clined to that type of schedule. It not infrequently 
occurs that two principals or teachers, without re­
gard to whether they are white or colored, appearing 
to have of record the same professional qualifications, 
are not in truth and fact equally qualified to perform 
the duties assigned to them. One may possess strong 
personality and aptitude for the performance of his 
or her duties that the other will never acquire no 
matter how long he or she may engage in school 
work, and that observation is just as applicable to 
colored teachers and principals as to white teachers 
and principals. In fact, it is a rule that applies to all

. 18_Civil Action No. 6 (1943), U. S. District Court for the Eastern 
District of Virginia, unreported; copy of this opinion appears in this 
brief in Appendix C.



31

activities of life. For that reason the Court was at 
first impressed with the argument in favor of the 
allowance of a variable schedule. However, when the 
evidence was introduced it disclosed that the variable 
schedule, although it is said to have been under con­
sideration for sometime prior thereto, was not put 
in force until after the demands of the plaintiff and 
her associates had been made upon the School Board 
for equalization of the salaries, without regard to 
race or color. This, in itself, gave rise to the idea 
that the variable schedule might be an after-thought 
that resulted from the demands of the plaintiffs 
rather than from a real intention to use a variable 
schedule which takes into consideration the purely 
personal qualifications of principals and teachers, as 
well as other matters. However, the evidence went 
much farther than that. It disclosed without any 
substantial conflict that in every instance where spe­
cial treatment was given to a white teacher or prin­
cipal on account of his or her personal qualifications, 
such principal or teacher received favorable treat­
ment in the way of increased compensation, while in 
no instance had such favorable treatment been ac­
corded to a colored principal or teacher on account of 
his or her special personal qualifications. Under 
these circumstances the Court does not feel justified 
in approving in its decree the variable schedule. ’ ’

The cases cited above show reasoning parallel to that in 
the decisions on the exclusion of Negroes from jury service. 
The Mills cases declared that salary schedules which on 
their face showed lower salaries for Negro teachers than 
for white teachers were unconstitutional. The Alston case 
declared that minimum salary schedules which on their face 
showed a difference because of race were unconstitutional. 
These decisions are closely similar to those concerning stat­
utory exclusion of Negroes from jury service {supra, p. 20).

The Hibbitts and Roles cases met the question of dis­
criminatory actions by school officials acting without benefit



32

of either statutory or administrative salary schedules dis­
criminatory on their face. These decisions are similar to 
those jury exclusion cases from Neal v. Delaware, supra, to 
Hill v. Texas, supra.

III.

The Policy, Custom and Usage of Fixing Sal­
aries of Public School Teachers in Little Rock 

Violates the Fourteenth Amendment.

In the instant case we begin with an examination of the 
salaries of white and Negro teachers and find that in every 
single instance Negro teachers get less salary than white 
teachers with equal qualifications and experience in the 
teaching profession.17 There is very little difference be­
tween the racial differential in salaries in Little Rock and 
in the other cases mentioned above. The appellees all deny 
that there is any written salary schedule in existence in 
Little Rock. They also deny that there is any intentional 
discrimination because of race or color. The main defense 
is that they established a rating system after the salaries 
had been fixed and that the ratings given the teachers justi­
fied the difference in salaries being paid Negro teachers.

In the Little Rock school system it is admitted that the 
appointment and fixing of salaries of teachers is done by 
the Superintendent of Schools by means of recommenda­
tions to the Personnel Committee, which in turn recom­
mends to the Board. It is also admitted that the Personnel 
Committee and the members of the Board do not usually go 
behind the recommendations of the Superintendent. The 
present Superintendent has been in office since 1941 and 
testified that the present salaries are much the same as the 
salaries he found when he took office and although he has

17 See tables in Appendix B,



B3

made a few adjustments “ in the main they are much 
the same”  (R. 183). The Superintendent also testified that 
he did not know what bases were used for the fixing of sal­
aries prior to his administration (R. 192). He also testified 
as follows:

“ Q. I will ask you if it is not a fact if prior to 
your coming into the system, the difference was based 
solely on the grounds of race the same difference 
would be carried on today? A. It would be so in 
many cases”  (R. 183).

Comparative tables showing the salaries of white and 
Negro teachers according to qualifications, experience and 
school taught have been prepared from the exhibits filed 
in the instant case and are attached hereto as Appendix B. 
According to these tables “ no one colored teacher receives 
so much salary as any white teacher of similar qualifica­
tions and experience” . These facts were admitted by 
.Superintendent Scobee (R. 497). This brings the instant 
case clearly within the rule as established in the Mills case, 
which rule was later approved by the Circuit Court of 
Appeals in the Alston case, supra.

The present differential in salaries of white and Negro 
teachers is the result of a combination of discriminatory 
practices of the defendants forming a policy, custom and 
usage extending over a long period of years. These prac­
tices have been:

A. A  general over-all policy of paying Negro teachers 
less salary than white teachers.

B. A  policy of fixing lower initial salaries for new Negro 
teachers than for new white teachers.

C. A  system of flat salary increases providing larger in­
creases for all white teachers than for any Negro 
teacher.



34

D. A  system of distributing supplementary payments on 
an unequal basis because of race.

A.

General Policy of Appellees.

The facts in the instant case are peculiarly in the hands 
and knowledge of the appellees. It was, therefore, neces­
sary to develop a large part of the appellant’s case by testi­
mony from the appellees called as adverse witnesses.

The appellees have repeatedly classified teachers by race 
in fixing salaries. The appellees admitted that for many 
years it has been the policy of the Personnel Committee to 
recommend lower salaries for Negro teachers than for white 
teachers new to the system (R. 36).

(1)
Cultural Background.

The appellees attempt to explain this differential in 
salaries in several ways. For example, one appellee testi­
fied that Negro teachers as a whole are less qualified (R. 
39); and that the majority of the white teachers “ have 
better background and more cultural background”  (R. 62). 
The President of the Board testified as to the Negro teach­
ers that: “ I did not think they were all qualified as well as 
the white people”  (R. 22).

This is but a rationalization of the notion that Negroes 
as a group should be paid less than whites for equal work. 
The unconstitutionality of any such differentiation has al­
ready been discussed.



35

(2)
Economic Theory.

Another appellee testified: “ I think I can explain that 
this way; the best explanation of that, however, is the 
Superintendent of the Schools is experienced in dealing and 
working with teachers, white and colored. He finds that we 
have a certain amount of money, and the budget is so much, 
and in his dealing with teachers he finds he has to pay a 
certain minimum to some white teachers qualified to teach, 
a teacher that would suit the school, and he also finds that 
he has to pay around a certain minimum amount in order 
to get that teacher, the best he can do about it is around 
$800 to $810, to $830, whatever it .may be he has to pay that 
in order to pay that white teacher that minimum amount, 
qualified to do that work. Now, in his experience with 
colored teachers, he finds he has to pay a certain minimum 
amount to get a colored teacher qualified to do the work. He 
finds that about $630, whatever it may be”  (R. 120).

Further explanation is that since there is a general 
understanding that the board can get Negro teachers for 
less it has been the policy of the board to offer them less 
than white teachers of almost identical background, qualifi­
cations and experience (R. 120). It was also revealed that 
Negroes are paid less because: “ They are willing to accept 
it, and we are limited by our financial structure, the tax­
ation is limited, and we have to do the best we can” , and 
also: “ the Negro can live cheaper, and there are various 
reasons”  (R. 121). The president of the board testified that 
they paid Negroes less because they could get them for less 
(R. 23). Still another member of the board, in response to 
a question: “ If you had the money, would you pay the 
Neg-ro teachers the same salary as you pay the white teach­
ers !”  replied that: “ I don’t know, we have never had the



36

money”  (R. 59). Superintendent Scobee testified that he 
could not fix the salaries of Negro high school teachers on 
any basis of merit because “ my funds are limited”  (R. 192).

In the case of Thomas v. Hibbitts et al.,17a decided by 
District Judge E lm er  D. D avies, sitting in the Middle Dis­
trict of Tennessee, the defendants offered as a defense on 
part of the Board of Education that the salary differential 
was an economic one and not based upon race or color; and 
also, that salaries were determined by the school in which 
the teacher was employed. In deciding these points Judge 
D avies wrote:

_ “ The Court is unable to reconcile these theories 
with the true facts in the case and therefore finds 
that the studied and consistent policy of the Board 
of Education of the City of Nashville is to pay its 
colored teachers salaries which are considerably less 
than the salaries paid to white teachers, although the 
eligibility and qualifications and experience as re­
quired by the Board of Education is the same for 
both white and colored teachers; and that the sole 
reason for this difference is because of the race of 
the colored teachers.”  (46 F. Supp. at 368.)

B.

Minimum Salaries for New Teachers.

All of the appellees denied that there ever has been a 
salary ‘ ‘ schedule ’ ’ for the fixing of teachers ’ salaries. The 
appellant, however, produced a salary schedule for Negro 
teachers providing a minimum salary of $615 (R. 716). 
Superintendent Scobee denied ever having seen such a 
schedule but admitted that since 1939 “ practically all”  new 
Negro teachers had been hired at $615 while all new white 
teachers hired during the same period were paid not less 
than $810 (R. 316).

17a46 F. Supp. 368.



37

In 1937 the School Board adopted a resolution whereby 
a “ schedule”  of salaries was established providing that new 
elementary teachers were to be paid a minimum of $810 (B. 
577). Although Superintendent Scobee attempted to ex­
plain that the word “ schedule”  did not mean schedule, he 
admitted that since that time all white teachers had been 
hired at salaries of not less than $810 (B. 285-286).

O )
The Little Rock Salary Schedule.

In the instant case the appellee sought to escape the rule 
as established in the Mills and Alston cases, supra, by de­
nying that they have a salary schedule. They testified that 
all teachers, white and Negro, were hired on an individual 
basis without regard to race or color. All of the appellees 
denied that there was any schedule establishing lower sal­
aries for Negro teachers because of race or color. They, 
however, admitted that in actual practice all new Negro 
teachers were hired at either $615 or $630 while all new 
white teachers were hired at not less than $810 (B. 84, 100, 
189). The validity of their method of fixing salaries is 
determined by the actual practice rather than the theory.

In the second Mills case Judge Chesnttt held that a 
minimum salary schedule adopted by local school board pro­
viding a higher minimum salary for white teachers than for 
Negro teachers was unconstitutional despite the fact that 
the board paid salaries higher than the schedule.

On the basis of the testimony of the appellees there is 
no essential difference between the facts in the Alston case 
and the instant case. In the Alston case all white elemen­
tary teachers were paid a minimum of $850 and white high 
school teachers were paid a minimum of $970, while all 
Negro elementary teachers a minimum of $597.50 and Negro



38

high school teachers $699, pursuant to a written salary 
schedule. In Little Rock all white elementary teachers were 
paid a minimum of $810 and white high school teachers a 
minimum of $900 while all Negro elementary teachers were 
paid $615 and Negro high school teachers $630 in the absence 
of a written salary schedule.

There is no magic in a written schedule as compared with 
a schedule in fact which is not in writing. Although appel­
lees deny they have a salary schedule Superintendent Seo- 
bee admitted all salaries were within certain limits:

“ Q. jOne second. How did it happen that your 
judgment always runs along in certain figures, 
namely, $615, $630 for Negroes, and $810 and $900 
for white teachers, how does it run there all of the 
time? A. I cannot answer”  (R. 329).

Of course, Superintendent Scobee denied that race was 
involved in this system (R. 329-330).

All efforts of Superintendent Scobee to deny that he 
followed a schedule were dispelled by his testimony that 
although some white high school teachers were willing to 
work for less he insisted on paying them $900 (R. 329).

In the Mills case, supra, Judge C hesntjt stated:

“  • • • In considering the question of constitutional­
ity we must look beyond the face of the statutes them­
selves to the practical application thereof as alleged 
in the complaint . . . ”  18

Superintendent Scobee testified that the difference in 
salaries paid new white and Negro teachers has been based 
upon certain intangible facts, most of which he had forgot­
ten by the the time of the trial. Information for these 
intangible facts used1: in fixing salaries was obtained from

18 See also Yick W o  v. Hopkins, supra.



39

letters and telephone conversations in addition to the appli­
cation blanks filed by the applicants (R, 316). In actual 
practice this procedure itself discriminates against Negro 
applicants.

The testimony of Superintendent Scobee reveals the 
extent of this discrimination. Two teachers, one white and 
one colored, were being considered for teaching positions. 
The superintendent, following his custom, telephoned the 
college professor of the white applicant and received a very 
high recommendation for her. He did not either telephone 
or write the professors of the Negro applicant. As a result 
he offered the white applicant $810 as an elementary teacher 
and the Negro $630 as a high school teacher despite the fact 
that their professional qualifications were equal (R. 317- 
320).

The extent of the discrimination against Negro teachers 
brought about by this unequal treatment is emphasized by 
further testimony of Superintendent Scobee that:

a. Where teachers had similar qualifications, the super­
intendent would solicit recommendations for one and 
receive good recommendations, yet fail to make such 
inquiry for the other. In such case the applicant 
whose recommendations he solicited and obtained 
would appear to him to be the better teacher (R. 317).

b. He seldom sought such additional information or 
recommendation about the Negro applicants (R. 327).

c. Personal interviews were used in the fixing of sal­
aries (R. 323); and played a large part in determin­
ing the amount of salary (R. 323).

d. He did not even interview all of the Negro applicants 
(R. 346).



40

In another recent case involving the question of exclu­
sion of Negroes from jury service facts were presented 
which are closely similar to the facts presented by the de­
fendants in this case. In the jury case, Mr. Chief Justice 
S tone for the Supreme Court stated:

‘ ‘ Discrimination can arise from the action of com­
missioners who exclude all Negroes whom they do 
not know to be qualified nor seek to learn whether 
there are in fact any qualified Negroes available for 
jury service.”  {Hill v. Texas, supra.)

In the instant case the practice of Superintendent 
Scobee outlined above is just as discriminatory as the policy 
and custom of the jury commissioners in the Hill case and 
in itself violates the Fourteenth Amendment.

C.

Salaries of Older Teachers and Flat Increases.

According to the tables of teachers’ salaries for 1941-42 
attached hereto as Appendix B no Negro teacher is being- 
paid a salary equal to a white teacher with equal qualifica­
tions and experience. This fact is admitted by Superinten­
dent Scobee (R. 497-498). These salaries for 1941-42 were 
not fixed on any basis of merit of the individual teachers 
(R. 192).

All of the public schools in Little Rock, both white and 
Negro, are part of one system of schools and the same type 
of education is given in all schools, white and Negro (R. 
182). The same courses of study are used. All schools are 
open the same number of hours per day and the same num­
ber of days (R. 195). The same type of teaching is given 
in all schools. Negro teachers do the same work as the 
white teachers (R. 191).



41

The appellees testified that there is a policy to pay high 
school teachers more than elementary teachers (E. 183) : 
and to pay teachers with experience more than new teachers. 
It is also admitted that the Negro teachers at Dunbar High 
School are good teachers and do practically the same work 
as other high school teachers in the white school (E. 191). 
However, the plaintiff and twenty-four other Negro high 
school teachers of Dunbar with years of experience are now 
being paid less than any white teacher in the system (E. 
187). Superintendent Scobee was unable to explain this or 
to deny that the reason might have been race or color of 
the teachers (E. 187-188).

The present differential in salaries between white and 
Negro teachers is the result of a long standing policy of 
employing Negro teachers at smaller salaries than white 
teachers and a system of blanket increases over a period of 
years whereby all Negro teachers have received smaller in­
creases than white teachers (E. 84-88). It is admitted that 
the differential has increased rather than decreased over a 
period of years (E. 88).

Several portions of the minutes of the School Board 
starting with 1926 were placed in evidence. These minutes 
were digested and set out in the Statement of Facts under 
the heading “ Policy of the Board in Past”  (supra, p. 8).

It is clear from these portions of the minutes and the 
testimony of members of the School Board that it is and 
has been the policy of the School Board of Little Eock, not 
only to employ Negro teachers at a smaller salary than 
white teachers, but in addition there has been the policy of 
giving blanket increases which are larger for white teachers 
than for Negro teachers.



Blanket Increases on Basis of Race.

The appellees repeatedly admitted that all Negro teach­
ers new to the system are employed at salaries less than 
white teachers new to the system. Defending the policy of 
giving larger increases to all white teachers than to any 
Negro teacher, the appellees testified that the differential 
in the increases was based upon the salaries being paid the 
two groups of teachers, while at the same time admitting 
that the differential in salaries was based upon race or color 
of the teachers (R. 34-35).

For example: One appellee testified as follows:

“ Q. So is it not true that the worst white teacher 
at that time got more than the best Negro teacher? 
A. No.

Q. Well, was there any other basis? A. Yes, the 
basis of their flat pay.

Q. I mean in order to qualify for this, there are 
two amounts involved, $75 and $50, and in order to 
qualify for the $75, is it not true that the only thing 
you had to do was to be white? A. No.

Q. Well, the white teachers got $75? A. Yes, sir, 
just in a different bracket of pay.

Q. Different bracket? A. Different set-up. It was 
on a basis of salary they were then drawing.

Q. Well, weren’t they all getting more than the 
Negro teachers? A. Yes.

Q. So that prior to that time there was a differ­
ence between them, between the white and colored 
teachers, in the salaries they were receiving and after 
that time the difference was even wider. A. I have 
not figured out whether it was wider or not, there 
was a difference”  (R. 34).

The inevitable result of this type of discrimination is 
likewise admitted by the appellees.



43

“ Q. So the Negro teachers that came in at less 
salary are still trailing below the white teachers. Is 
that true ? A. It probably is.

Q. So, regardless of how many degrees they might 
go away and get, they would still be trailing behind 
the white teachers they came in with. Would that be 
true? A. Not in every case, I don’t think.

Q. Can yon give any exceptions? A. No”  (E. 40).

D.

The Discriminatory Policy of Distributing
Supplementary Salary Payments on an 

Unequal Basis Because of Race.

Clear evidence of the policy of discrimination in the 
Little Rock School Board is apparent in the policy of dis­
tributing supplementary payments to teachers in the Little 
Rock School System. It is admitted that the money for the 
supplementary salary payments was received from state tax 
funds (R. 311). These supplementary payments were dis­
tributed under the same policy as has been used in the fixing 
of the basic salaries of these teachers. Some of the testi­
mony on that point was:

“ Q. And in distributing the public money didn’t 
you feel obligated under the same rules as the other 
money you distributed for the School Board? A. So 
far as it was public money, yes.

Q. Why? You didn’t think you could distribute 
it any way you pleased, did you? A. No, but the At­
torney General of Arkansas ruled it was within the 
discretion of the Local Board to distribute it.

Q. Did you think you could distribute it on the 
basis of—so much to the teacher of one school and 
so much to the teacher of another school, on that 
basis? A. Well, according to the rule, if I remember 
right, said so, I  believe we could.

Q. As to the rate, we are not concerned about 
that. Do you think you could distribute more to



44

white persons than to Negro persons? A. I think, 
legally speaking, under the terms of his opinion it 
would have been possible.

Q. Then you think the Fourteenth Amendment 
did not touch you? A. I did not go into the Four­
teenth Amendment”  (R. 311-312).

This type of total disregard for the Fourteenth Amend­
ment is characteristic of the entire policy of the School 
Board of the City of Little Rock and the Superintendent 
of Schools in administering public funds allotted for the 
payment of teachers’ salaries.

The facts concerning the distribution of the supple­
mental salary payments, 1941-1942, are not in dispute at all. 
The money obtained from public funds was distributed pur­
suant to a plan recommended by Superintendent Scobee 
and adopted by the School Board (R. 89).19 The plan was 
worked out and recommended by a committee of teachers 
in the public schools of Little Rock (R. 89). This com­
mittee was composed solely of white teachers (R. 194), be­
cause, as one member of the Board testified: “ We do not 
mix committees in this City”  (R. 89). Superintendent 
Scobee, who appointed the committee, testified that he did 
not even consider the question of putting some Negro 
teachers on the committee (R. 194). Under this plan only 
three criteria were used in determining how many “ units”  
a teacher is entitled to. One, years of experience; two, 
training; three, salary (see Exhibits 3-A and 3-B). After 
the number of units were determined, the fund was dis­
tributed as follows:

Each white teacher was paid $3 per unit and each Negro 
teacher was paid $1.50 per unit. After the number of units 
were determined, the sole determining factor as to whether

19 The plan appears as an Exhibit (R . 713-715).



45

a teacher received $3.00 or $1.50 per unit was the race of 
the teacher in question (E. 314).

Further evidence of the complete disregard for Negro 
teachers in Little Rock and for the Constitution of the 
United States, appears from the fact that although repre­
sentatives of the Negro teachers protested to Superin­
tendent Scobee against the inequality in the 1941 payment, 
yet, another supplemental payment was made in 1942, after 
this case was filed and the same plan*was used (E. 197). 
No effort at all has been made by the appellees to defend 
this violation of the United States Constitution other than 
the explanation that the opinion of the Attorney General 
of Arkansas permitted the discrimination.

IV.

The So-called Rating System in Little Rock Is 
Not an Adequate Defense to This Action.

A.

The Composite Rating Sheets Offered in 
Evidence by Appellees Should Not Have 

Been Admitted in Evidence.

Prior to the filing of this suit rating sheets were never 
used by the appellees (R. 41). Some supervisors used their 
own rating sheets in order to carry out their work of super­
vision. In the Fall of 1941, after the Negro teachers of 
Little Rock had petitioned defendants for the equalization 
of teachers’ salaries the supervisors along with the super­
intendent of schools prepared formal rating sheets of three 
columns for the purpose of rating the teachers. In the 
Spring of 1942 after this case was filed, the teachers were 
rated on the formal rating sheets. These rating sheets ac­
cording to Mr. Scobee were “ not for the purpose of fix­
ing salaries”  (R. 282). The real purpose of the rating



46

sheets according to Mr. Scobee, was “ to survey the situa­
tion and find out what I could about individual teachers, 
looking to their improvement”  (R. 211).

Salaries for the year 1941-42 were not based on rating 
of teachers. The salaries for the school year 1942-43 were 
not changed from the salaries for year 1941-42 with one ex­
ception. Salaries for the year 1942-43 were fixed in May, 
1942 (R. 281), while the final reports of the rating sheets 
were not completed before June of 1942 (R. 281).

The rating sheets prepared after the suit was filed and 
the answer filed and after consultation with lawyers for the 
school hoard on its face seemed to completely justify the 
difference in salary (R. 490). Appellees’ Exhibit 5 which 
included the names, professional training, experience, rat­
ing and salary of each teacher in the Little Rock School 
system was on mimeographed sheets of paper in which the 
name of the teacher, the name of the school, the qualifica­
tions, experience and salary were mimeographed while the 
ratings were typed in subsequent to the preparation of the 
mimeographed sheets themselves (R. 280).

It is, therefore, clear that: (1) Superintendent Scobee 
and his assistants actually completed the rating of teachers 
after he had given to his lawyers the factual information 
for the answer in this case; (2) the final composite rating- 
sheets were mimeographed showing name of teachers, quali­
fications, experience, school taught and salary with blank 
spaces for ratings; (3) this material was before him when 
the ratings were made; (4) Superintendent Scobee ad­
mitted that on the levels of qualifications and experience 
a comparison will show that all Negro teachers get less 
salary (R. 497); (5) the ratings were later typed in. An 
examination of this composite rating sheet will show that 
wherever it appears that teachers with certain qualifica­



47

tions and experience (Negroes) get less salary than white 
teachers with equal qualifications and experience lower rat­
ings for these teachers were typed in. As a matter of fact, 
Mr. Scobee testified that in practically all instances the rat­
ing figures prepared after the case and answer were filed 
seemed to completely justify the difference in salaries be­
tween white and Negro teachers (R. 490).

The composite rating sheets should not have been ad­
mitted in evidence. They were prepared under the direction 
of the Superintendent and were not prepared for either the 
School Board or the general public. They were not public 
documents. The ratings were not only hearsay but were 
conclusions and not facts. There is no statutory authority 
requiring the making of the rating sheets.

The law on this point is quite clear and has been set out 
as follows :

“ According to the theory advanced by some 
courts a record of primary facts made by a public 
official in performance of official duty is, or may be 
made by litigation, competent prima facie evidence 
as to the existence of the fact, but records of investi­
gations and inquiries conducted either voluntarily or 
pursuant to requirement of law by public officers con­
cerning causes and effects and involving the exercise 
of judgment and discretion, expression of opinion, 
and the making of conclusions, are not admissible in 
evidence as public records. ’ ’ 20

In the cases on this point the line is drawn between 
records containing facts and those containing conclusions 
and opinions involving discretion. In the instant case the 
ratings were based solely on conclusions of several people

20 American Jurisprudence, Sec. 1027, p. 866.



48

and did not contain facts. The records, therefore, were not 
admissible:

“ In order to be admissible, a report or document 
prepared by a public official must contain facts and 
not conclusions involving the exercise of judgment or 
the expression of opinion. The subject matter must 
relate to facts which are of a public nature, it must 
be retained for the benefit of the public and there 
must be express statutory authority to compile the 
report.’ ’ 20a

B.

The Composite Rating Sheets Are Entitled 
to No Weight in Determining Whether the 
Policy, Custom and Usage of Fixing Sal­

aries in Little Rock Is Based on Race.

Mr. Scobee testified that he did considerable studying on 
the question of school administration and that he had done 
quite a bit of studying on the question of methods of fixing 
salaries in various school systems. On the question of the 
proper methods of fixing salaries, Mr. Scobee testified that 
paying salaries pursuant to the rating of teachers’ ability 
was not used (R. 181). He testified further that of the sev­
eral school systems he had studied, he did not know of any 
other school system in the country using rating as a basis 
of fixing of salaries (R. 181). He also testified that he was 
familiar with the several surveys conducted by the National 
Educational Association and that these surveys revealed 
that ratings are not used in fixing salaries (R. 182).

As to the ratings used in this case and particularly the 
final rating sheets, Mr. Scobee’s response to a question by 
the Court was as follows:

20:1 Steel v. Johnson, 115 P. (2d) 145, 150. See also Chamber- 
lain v. Kane, 264 S. W . 24 (1 9 2 4 ); State v. Bolen, 142 Wash. 653, 
254, P. 445.

\



49

“ Q. Whatever its contents are, you considered 
them in fixing salaries! A. Never at any time. This 
was not for the purpose of fixing salaries”  (R. 282).

Mr. Scobee testified further that “ I have not used the 
rating, and have not claimed definite accuracy for it.”  These 
rating sheets were supposed to be used primarily for help­
ing to correct teaching (R. 348). These rating sheets are 
then supposed to be given to the individual teacher so that 
they can correct their teaching (R. 348). However, accord­
ing to Mr. Scobee, in response to a question as to whether 
or not ratings are ever used for the purpose of fixing sal­
aries, replied, “ I do not believe they are ever used, be rare 
instances if they were”  (R. 348). The following testimony 
of Mr. Scobee on this point is likewise quite interesting:

“ Q- Do you know of any school system in the 
country that bases its salary on a rating of teachers 
similar to that there [rating sheets]! A. I do not 
recall any.

Q. So Little Rock is novel in that! A. Little 
Rock is not basing its salary on these ratings.”  
(Emphasis ours.) (R. 489.)

How the Ratings Were Made in Little Rock.

On several occasions Mr. Scobee testified that the par­
ticular ratings in question were not accurate and that there 
were too many personal elements involved to be accurate 
(R. 347, 348, 489). Supervisor Webb, under examination by 
his attorney, admitted that he transferred a white teacher 
in his school, Elizabeth Goetz, because “ she just wasn’t 
filling the job ”  (R. 463). However, on the composite rating 
sheet Miss Goetz is rated as “ 3”  which seems to justify her 
salary of $852 (R. 773). Superintendent Scobee testified 
that another white teacher, Bernice Britt, was so inefficient



50

lie had to discharge her yet her rating appeared on the 
composite rating sheets as “ 3”  (E. 489). This was the only 
way of justifying her salary.

One supervisor testified that the proper rating of a 
teacher would require several visits to observe the teacher 
and that each visit would have to be more than twenty min­
utes (E. 425-426). However, Mr. Scobee “ rated”  the appel­
lant in this case after only one visit of ten minutes (E. 133).

According to the evidence of the appellees one supervisor 
testified that she would prefer at least a year of observation 
before undertaking the job of rating a teacher (E. 426). 
However, Mrs. Allison testified that although she rated some 
Negro teachers she only visited these teachers about once 
a year (E. 439), and, as a matter of fact, some Negro schools 
were not visited at all during the past school year (E. 440). 
Mrs. Allison testified further that in rating these teachers 
she did not use any previous knowledge of the teachers’ 
ability (E. 441).

Miss Hayes testified she had not visited some Negro 
schools in the past two years (E. 447). Mr. Webb testified 
that during the rating of teachers he was “ conscious that 
some were white and some were colored”  (E. 454). He, 
however, testified that there was “ no intentional discrimi­
nation”  (E. 453).

( 2)
Elementary Schools.

In the system of rating used in Little Eock during the 
Spring of this year, it was agreed that the better procedure 
would be to have the principals rate their own teachers. 
Following this procedure the white principals of both ele­
mentary and high schools rated their teachers (E. 469-471). 
However, although the Negro principals were considered



51

just as capable of rating- their own teachers (R. 470), the 
superintendent instructed the white supervisors who were 
also principals of white elementary schools to rate the 
Negro teachers as well as their own white teachers. These 
supervisors did not even consult the Negro principals as to 
the final ratings of their teachers.

( 3)

High Schools.

The teachers of the white high school were rated by the 
principal of the white high school:

■ “ Q. In compiling the rating for these teachers in 
the Little Rock Senior High School, on what basis 
did you base all the rating- appearing in the system? 
A. Recommendation of the principal, Mr. Larson.

Q. Do you have before you the individual rating 
sheets? A. Yes.

Q. Who prepared these individual rating sheets? 
A. Mr. Larson.

Q. In arriving at the rating appearing on the 
sheet describe the mechanics through which you went. 
A. The secretary sat before me with the master copy. 
As she called the name of the teacher, going down the 
list, I told her what to write, and she wrote that in 
there on the basis of the information, whatever came 
from the High School Principal.

Q. At the time you told her the figure to place on 
the rating sheet, state whether or not in each instance 
you consulted the rate sheets of the principals. A. 
Yes”  (R. 471).

A  comparison of this procedure with the method used in 
rating Negro high school teachers makes the policy and 
practice of discrimination clear. On questioning of Super­
intendent Scobee as to the final five-column rating sheet, he 
testified:



52

“ Q. You were not interested in Mr. Lewis [prin-
■ cipal] ? A. I  was, or I would not have asked for it.

Q. I am talking about the five column sheet. A.
No.

Q. You were not interested? A. No”  (R. 493).

On examination by his attorney Mr. Scobee testified that 
he requested Mr. Lewis as principal of the Negro High 
School to rate his teachers and that Mr. Lewis sent him 
such a rating for each of his teachers (R. 473-474). Mr. 
Scobee, however, did not follow this rating of teachers as 
was done in the case of the rating of the white high school 
teachers by their principal (R. 492).

The ratings of the white high school teachers were made 
by the principal on a comparative basis as among the 
teachers in his high school (R. 471). The ratings of the 
Negro high school teachers were likewise made by the prin­
cipal on a comparative basis among the teachers in his high 
school but they were not used by Mr. Scobee. An examina­
tion of the rating by Mr. Lewis (R. 765) will reveal that if 
these ratings had been used by Mr. Scobee and placed on 
the composite rating sheet it would have completely de­
stroyed their defense to this action. In order to prevent 
this, and, we must bear in mind that all of this was taking 
place after the case was pending, a different plan was 
worked out for the Negro schools.

The original plan was to have all teachers rated on a 
three column sheet. Mr. Scobee visited the plaintiff and 
some other teachers in Dunbar during the Spring of this 
year and the teachers were rated on a three column sheet by 
Messrs. Scobee and Hamilton. Although Mr. Lewis was 
present he did not rate the teachers. Mr. Scobee assumed 
he agreed with the ratings because he did not “ object to 
any of them” . An examination of these ratings by Mr.



53

Lewis shows that they would destroy the theory of the ap­
pellees’ case, so, Mr. Lewis was requested to rate his 
teachers and this was done. But, these ratings did not help 
the appellees’ case. Then a five column rating sheet was 
worked out and given to Mr. Hamilton as “ supervisor”  of 
the Negro high school for the insertion of ratings consistent 
with salaries being received. From this point on Mr. Lewis 
is completely ignored as to the question of rating of his 
teachers, although Mr. Hamilton was in the high school 
every day.

Mr. Lewis testified as to the time after the conference 
between the three of them in the Spring:

“ Q. Following that meeting, were you ever asked 
by anyone in the school system to confer with any­
one on the rating of teachers ? I ask you specifically 
if Mr. Hamilton discussed the rating of teachers on 
a five column sheet with you ? A. He has never done 
that.

Q. He has never asked your opinion about it? A. 
He has not about any of my teachers”  (R. 505).

( 3)

Ratings by Mr. Hamilton.

Mr. Hamilton holds a unique position. He is principal 
of a white elementary school and is a sort of part time 
supervisor of the Negro high school. He is a graduate of 
Wilmington College in Ohio and in response to a question 
by his attorney as to whether this college was accredited 
replied: “ It is a Christian college . . . ”  (R. 361). He 
has been working on his Master of Arts degree since 1929 
and still does not have it (R. 371). It is admitted that many 
of the teachers at Dunbar have achieved advanced degrees, 
others have substantial work on their Ph. D. degrees (R. 
371). These teachers who are under his “ supervision”



54

have better qualifications than Mr. Hamilton (R. 371). Mr. 
Hamilton’s professional qualifications are far inferior to 
those of Mr. Lewis. As a matter of fact, Mr. Hamilton does 
not meet the present Little Rock standards for a high school 
principal. All of Mr. Lewis ’ experience has been in school 
work above the elementary level. Practically all of Mr. 
Hamilton’s experience has been on the elementary level. 
However, for some unexplained reason Mr. Hamilton was 
finally chosen to rate the Negro teachers of Dunbar CR. 494- 
495).

Mr. Hamilton while being examined by his attorney tes­
tified that the methods of teaching were different in ele­
mentary and high schools and that he did not want to com­
pare Dunbar high school teachers with elementary teachers. 
On cross examination he testified:

“ Q. So, as a matter of fact, isn’t it true what you 
said on direct examination, you can’t compare a high 
school teacher with an elementary teacher! A. They 
are not comparable”  (R. 378).

Mr. Hamilton admitted he could not compare the Dunbar 
teachers with the teachers in the white high school (R. 391). 
He also admitted he was not in a position to evaluate the 
science teachers at Dunbar because he had no experience in 
science except what he had learned in his regular college 
course (R. 391). Despite this Mr. Hamilton at the request 
of Superintendent Scobee did compare the Dunbar teachers 
with his elementary teachers:

“ Q. You mean you compared Susie Morris with 
the elementary school teachers ? A. Yes.

Q. I thought you testified on direct examination 
that it was practically impossible to do it. A. I did, 
therefore, I  did it.

Q. You did the impossible? A. I did the best I 
could”  (R. 378).



55

He never used the rating sheets introduced in evidence 
to rate teachers at Dunbar prior to Spring of this year (R. 
408). The first time was in May of this year (R. 408). This 
was the first time he had attempted to compare Dunbar 
teachers with his elementary teachers (R. 408).

The elementary teachers with whom the Dunbar teachers 
were compared were in Mr. Hamilton’s judgment far above 
average. He testified that ‘ ‘ They rank very high ”  (R. 382), 
and testified further:

“ Q. So that is it not a fact that in comparing 
these teachers at Dunbar you compared them with a 
group of white teachers that you thought were high 
caliber teachers? A. Yes, and I was asked to do it, 
that is what I was asked to do.

Q. And that is what you did ? A. I generally con­
sider them so”  (R. 382-383).

Mr. Hamilton testified further that: “ I would have to, you 
see my teachers, as I said, were exceptional teachers. I 
doubt, where anyone would come in close or near, I would 
consider them a very perfect teacher, and I don’t know that 
way about others”  (R. 388).

When the Dunbar teachers were first rated on the three 
column sheet in April they made one rating, but when they 
were later compared by Mr. Hamilton with his own above 
average elementary teachers whom he regarded so highly 
they rated less (R. 414-415). Yet, Mr. Hamilton admitted 
that as between the rating on the three column sheet which 
was supposed to be the combined judgment of Messrs. 
Scobee, Lewis and Hamilton, and the final rating as against 
his elementary teachers he would prefer the first rating- 
made in Mr. Lewis’ office (R. 402).



56

Conclusion.

It is clear that racial discrimination in the salaries of 
public school teachers is a denial of equal protection of law 
in contravention of the provisions of the Fourteenth Amend­
ment, The record herein abundantly shows that it is now 
and for a long time has been the practice of the appellees 
so to discriminate. All statements of appellees and their 
witnesses to the contrary are specious sophistries in the 
light of the facts proved and admitted in the record. In 
these circumstances the judgment of the District Court 
should be reversed.

Respectfully submitted,

J. R. B ooker,
Little Rock, Arkansas,

T httrgood M arshall,
New York, New York,

W illiam  H . H astie, 
Washington, D. C. 

Counsel for Appellants.

E dward R. D udley,
New York, New York,

M yles A. K ibbler,
Little Rock, Arkansas,

Of Counsel.



57

APPENDIX A.

Analysis of Complaint and Answer.

Com plain t .

1. Jurisdiction in General.
2. Jurisdiction for declara­

tory judgment.
3. Citizenship of parties.
4. a. Plaintiff is colored—

a Negro.
b. Plaintiff is a tax­

payer.
c. Regular teacher in 

th e  Dunbar High 
S c h o o l ,  a p u b l i c  
school in Little Rock 
operated by defen­
dants.

d. Class suit.
5. Plaintiff Teachers’ As­

sociation.

6. a. Little Rock Special 
School District ex­
ists pursuant to laws 
of Arkansas as an 
administrative d e ­
partment of state 
performing essential 
governmental func­
tions.

b. Naming of Defen­
dants.

A nsw er .

1. Denied.
2. Denied that there is any 

discriminatory policy.
3. Admitted.
4. a. Admitted.

b. Admitted.

c. Admitted.

d. Admitted.
5. Out of case by reason of 

ruling on motion to dis­
miss as to teacher’s as­
sociation.

6. a. Admitted.

b. Admitted except that 
R. M. Blakely and E. 
F. Jennings' are now 
chairman and secre­
tary.



58

7. a. State of Ark. has de­
clared public educa­
tion a state function.

b. General assembly of 
Ark. has established 
a system of free pub­
lic schools in Arkan­
sas.

c. Administration o f  
public school system 
is vested in a State 
Board, Committee of 
Education, School 
Districts and Local 
Supts.

8. a. All teachers in Ark.
are required to hold 
teaching licenses in 
full force in accord­
ance with the rules 
of certification laid 
down by the State 
Board.

b. Duty of enforcing 
this system is im­
posed on s e v e r a l  
school boards.

c. N e g r o  and w h i t e  
teachers and princi­
pals alike must meet 
same requirements 
to receive teachers’ 
licenses from State 
board and upon qual­
ifying a r e  issued 
identical certificates.

7. a. E n t i r e  paragraph 
admitted.

b. E n t i r e  paragraph 
admitted.

c. Admitted.

8. a. Admitted—but state 
these requirements 
a r e  minimum re­
quirements only.

b. Admitted.

c. Admitted.



59

9. a. P u b l i c  schools of 9. a.
Little Rock are un­
der direct control 
and supervision of 
defendants, acting as 
a n administrative 
dept, of State of 
Arkansas.

b. Defendants are un- b.
der a duty to employ 
teachers, fix salaries 
and issue warrants 
for payment of sal­
aries.

10. a. Over a long period 10. a.
of years defendants 
h a v e  consistently 
maintained and are 
now maintaining pol­
icy, custom and us­
age of paying Negro 
teachers and princi- fj i:
pals less salary than 
white teachers and 
principals possess­
ing the same profes­
sional qualifications, 
licenses and experi­
ence, exercising same 
duties and perform­
ing the same services 
as Negro teachers 
and principals.

b. Such discrimination b. 
is being practiced 
against plaintiff and 
a ll  o t h e r  Negro 
teachers and princi­
pals in L. R.—and is 
based solely upon 
their race or color.

Admitted ( e n t i r e  
paragraph).

Admitted ( e n t i r e  
paragraph).

Denied.

Denied.



60

11. a. Plaintiff a n d  a l l  
other Negro teachers 
and principals are 
teachers by profes­
sion and are spe­
cially trained f o r  
their calling.

b. By r u l e s ,  regula­
tions, practice, usage 
and custom of state 
acting through de­
fendants as agents 
plaintiff and all other 
Negro teachers and 
principals are being- 
denied equal protec­
tion of laws, in that 
solely by reason of 
race and color they 
are d e n i e d  equal 
compensation from 
p u b l i c  funds for 
equal work.

12. a. Plaintiff has been 
employed as a regu­
lar teacher by defen­
dants since 1935.

b. A.B. Degree from 
Talladega College, 
Talladega, Alabama.

c. Plaintiff holds a high 
school teacher’s li­
cense issued by State 
Board of Education.

11. a. Admitted—but state 
further that they dif­
fer a m o n g  them­
selves and as com­
pared to some white 
teachers and princi­
pals in degree of spe­
cial training, ability, 
character, profes­
sional qualifications, 
experience, duties, 
services and accom­
plishments.

b. Denied — and state 
that if in individual 
cases compensation 
paid to teachers var­
ies in amount it is 
based solely on spe­
cial training, ability, 
character, profes­
sional qualifications, 
experience, duties, 
services and accom­
plishments.

12. a. Admitted.

b. Admitted.

c. Admitted.



61

d. In order to qualify 
for this license plain­
tiff h a s satisfied 
same requirements 
as those exacted of all 
other teachers white 
as well as Negroes.

e. Plaintiff exercises 
the same duties and 
performs services 
substantially equiva­
lent to those per­
formed by  o t h e r  
holders of teachers’ 
licenses with equal 
and less experience 
receive salaries much 
larger than plaintiff.

13. a. Pursuant to policy, 
custom and usage set 
out above defendants 
acting as agents of 
State h a v e  estab­
lished a n d  main- 
t a i n e d  a s a l a r y  
schedule which pro­
vides a lower scale 
for Negroes, 

b. Practical application 
has been and will be 
to pay Negro teach­
ers and principals of 
equal qualifications 
and experience less 
compensation solely 
on account of race or 
color.

d. Admitted—but state 
in doing so plaintiff 
satisfied only mini­
mum requirements.

e. Denied and state if 
w h i t e  teachers in 
Little Rock receive 
salaries larger than 
plaintiff the differ­
ence is based solely 
on difference in spe­
cial training ability, 
character, profes­
sional qualifications, 
experience, duties, 
services and accom­
plishments, and in no 
part are based on 
race or color.

13. a. D e n y  defendants 
have ever had a sal­
ary schedule.

b. Denied salaries are 
fixed in whole or in 
part on color.



62

14. a. In enforcing a n d
maintaining the pol­
icy, regulation, cus­
tom and usage by 
which plaintiff and 
other Negro teach­
ers a n d  principals 
are uniformly paid 
lower salaries than 
white teachers solely 
on account of race 
and color, defendants 
a r e  violating th e  
14th Amendment and 
Sections 41 and 43 of 
Title 8 of U. S. Code.

b. To the extent that 
defendants act under 
color of statute said 
policy, custom and 
usage is unconstitu­
tional.

c. To the extent that 
defendants act with­
out benefit of statute 
is nevertheless un­
constitutional.

15. a. By virtue of discrim­
inatory policy, and 
schedule plaintiff is 
denied an equal par­
ticipation in the ben­
efit derived from that 
portion of her taxes 
devoted t o public 
school fund.

b. Solely on race or 
color.

c. Contrary to 1 4 t h  
Amendment.

14. a. Denied — deny that 
there is any salary 
schedule or discrim­
inatory practice.

b. Denied.

c. Denied. 

15. a. Denied.

b. Denied.

c. Denied.



63

d. Special and particu­
lar damage.

e. Without remedy save 
by injunction from 
this Court.

16. a. Petition on behalf of 
plaintiff and all other 
Negro teachers filed 
with defendants in 
March, 1941, request­
ing equalization, 

b. Petition denied on or 
about May 9,1941.

17. a. Plaintiff and others
in class are suffering 
irreparable injury, 
etc.

b. No plain adequate or 
complete remedy to 
redress wrongs other 
than this suit.

c. Any other remedy 
would not give com­
plete remedy.

18. a. There is an actual
controversy.

d. Denied.

e. Denied.

16. a. Admitted.

b. Admitted—but state 
reason for denial of 
petition was t h a t  
there is no inequality 
in salaries paid to 
white and N e g r o  
teachers.

17. a. Denied ( e n t i r e  
paragraph).

b. Denied.

c. Denied.

18. a. Admitted.



64

A P P E N D IX  B.

TA B LE  1.
N egro  h i g h  s c h o o l  t e a c h e r s  g e t t in g  le ss  s a l a r y  t h a n  a n y
WHITE TEACHER IN EITHER HIGH OR ELEMENTARY SCHOOL IN

L ittle Rock.
Experience

T eacher Training L. R. Other Assignment Salary

Bass, Bernice B.S. 5 1 H. E. $ 638.50
Brumfield, Eunice A.B. 0 0 Science 630.00
Bryant, Thelma A.B. 3/2 1 / History 652.00
Byrd, Eva C. A.B. 8 0 Library 766.75
Bush, Lucille C. 3C 4 3 Laundry 730.00
Cox, Annie A.B. 7 5 M-E 766.75
Douglass, Edna B.S. 15 0 Science 737.96
Elston, India M.S. 0 u 630.00
Garrett, Byrnice B.S. 3 4 Foods 655.50
Green, O. N. O 0 Carpentry 675.00
Heywood, Vivian A.B. 9 0 English 706.00
Hunter, Andrew B.S. 5 0 Math. 665.50
Johnson, Byron A.B. 3 1 Science 631.75
King, Ruth B.M.E. 4 5 Music 730.00
Lewis, Tessie A.B. 0 3 English 630.00
Morris, Susie A.B. 6 5 English 706.00
Moore, Dorothy A.B. 6 1 L. 679.00
Perry, Alice B.A. 11 0 E. 762.40
Russell, John B.S. 1 7 Science 642.00
Scott, James D. M.A. 8 4 / Math. 753.25
Torrence, Rosalie B.S. 2 0 E. 652.00
Tyler, Daniel P. A.B. 0 z Science 630.00
Walker, Rose Mary A.B. 4 0 Science 652.00
Works, Mildred B.S. 0 2 Clothing 630.00
Winstead, Homer 2 yr. 0 Woodwork 630.00

TA B LE  2.
A  COMPARISON OF PLAINTIFF WITH WHITE HIGH SCHOOL TEACH­
ERS o f  E n g l is h  w i t h  e q u a l  a n d  l e ss  e x p e r ie n c e  a n d  pr o ­

f e s s io n a l  QUALIFICATIONS.

Experience
Teacher Training L. R. Other Salary

Morris, Susie A.B. 6 5 $ 706

Lane, Lillian A.B. 0 900
Warry, Rhoda W . B.S.E. 0 2 900
Jefferson, Mary P. A.B. / 8 945
Lee, Catherine A.B. 6 2 1060



65

A  COMPARISON OF ENGLISH TEACHERS IN HIGH SCHOOLS OF LlTTLE ROCK
w i t h  M a s t e r ’ s d e g r e e s .

TABLE 3.

School T eacher
Train­

ing
Experience 

L. R. Other
Assign­
ment Salary

N-Senior-H Campbell, H. B. M.S. 14 0 English $ 859.77
W-Senior-H Beasley, Louise M.A. 5 3 1135.00

Hall, Henel M.A. 11 6 « 1348.40
Leidy, Edith M.A. S 10 % s s 1243.50
Scott, Emma M.A. IS 0 “ 1350.96

W-Junior-H Mayham, Ella Neal M.A. 5 5 S i 1128.75
Clauson, Evelyn M.A. 5 5 ( S 1045.00

N-Negro W-White H-High School

TA B LE  4.
A  COMPARATIVE TABLE AS to  YEARS OF EXPERIENCE OF ENGLISH TEACHERS 

IN HIGH SCHOOLS WITH A .B . DEGREE OR LESS.

Train- Experience Assign-
School Teacher ing L .R . Other ment Salary

N-Senior-H Little, Clarice A.B. 26 1 English
s c

$ 833.52
W-Senior-H Broadhead, Catherine A.B. 14 8 1498.30

SS Key, Helena A.B. 3 13 S i 1122.00
SC Oakley, Francille B.S. 12 4 SS 1194.10
s c Piercey, Mary A.B. 3 16 SS 1122.00
SS Stalmaker, Mildred A.B. 15 7 SS 1506.92
SS Stewart, Josephine B.S. 13 7 SS 1533.00

W-Junior-H Harris, Fanita B.S. 16 5 s c 1391.87
S S Lane, Lillian A.B. 0 “ 900.00
SS Jefferson, Mary P. 4 V2 8 SS 945.00
SS Hammett, Flora 2-C 27 0 SS 1429.72
SS Lee, Catherine A.B. 6 2 SS 1060.00
SS Wharry, Rhoda B.S.E. 0 2 SS 900.00

N-Negro W-White H-High School



66

TABLE 5.
A  CO M PA R ATIV E  TABLE OF M A T H E M A T IC S  TEACH ERS IN  H IG H

SCHOOLS W IT H  M.A. DEGREES.

School Teacher
Train­

ing
Experience 

L. R. Other
Assign­
ment Salary

N-Senior-H Massie, S. P. M.A. 19 5 $1142.55
Scott, James D. M.A. 3 4^2 753.25W-Senior-H Armitage, Flora M.A. 36 1 2115.00
Berry, Euleen M.A. 14 1634.00
Rivers, Ethyl M.A. 12 8 1431.87
White, Claire T. M.A. 21 n y 2 1808.90
Hermann, John M.A. 1 2 992.25
Irvine, Mabel M.A. 2 2 ^ 4 (Sub) 1658.53

N-Negro W-White H-High School

TA B LE  6.

A  COMPARATIVE TABLE OF MATHEMATICS TEACHERS IN HIGH 
SCHOOLS WITH A.B. DEGREES OR LESS.

School
Experience

Teacher Training L .R . Other Salary

N. Senior-H Cox, Annie A.B. 7 5 $ 766.75
Gipson, J. H. A.B. 17 4 979.02
Gipson, Thelma B.S. 0 630.00 (Sub)
Hunter, Andrew B.S. 5 0 665.50

W . “ U Parr, Pinkie 
Bigbee, J. R.

A . B.
B. S.

0
28 10

630.00 (Sub) 
2293.17

Ivy, William B.M.E. 17 4 1854.46
Moser, M. C. A.B. 13 7 1536.98J unior H Cobb,- Clare 2J4C 38 0 1754.41
Davis, Wade L. A.B. 0 12 1125.00
Elliott, Clayton B.S. 6 0 1234.25
Gardner, F. M. B.S. 4 3 1260.00
Tull, N. F. 54-1/3 17 4 1603.55
Irby, Mrs. Guy A.B. 0 900.00
Riegler, Mary 
Calloway, Estelle

2C 30 0 1608.27
2C 46 0 1741.22



67

TABLE 7.
A  C O M PARATIVE TABLE OF S C IE N C E  TE AC H E RS IN  H IG H  SCHOOLS

W IT H  M . A .  DEGREES.

School Teacher Training
Experience 

L. R, Other Salary

N. Senior H. Wilson, J. L. M.A. 9 9 $1039.50a it Elston, India M.S. 0 630.00
W. Senior H. Tillman, Marcia M.A. 15 8 1732.34it (6 Berry, Homer M.A. 14 3 1939.81
Junior te Warner, Nita Bob M.S. 3 0 1020.75(( te Clauson, Donald M.A. 14 3 1702.77

TA B LE  8.
A  COMPARATIVE TABLE OF SCIENCE TEACHERS IN HIGH SCHOOLS 

WITH A.B. DEGREES OR LESS.

School Teacher Training
Experience 

L. R, Other Salary

N. Senior H ( l ) Brumfield, Eunice A.B. 0 0 $ 630.00it “  (2 ) Douglass, Edna B.S. 15 0 737.96
“  (3 ) Johnson, Byron A.B. 3 1 631.75it “  (4 ) Russell, John B.S. 1 7 642.00a “  (5 ) Tyler, Daniel P. A.B. 0 630.00
“ (6 ) Walker, Rose Mary A.B. 4 0 652.00

W. Senior “  fa) Barnes, Everett A.B. 14 2 1732.70
1-5 Junior H Avery, Julia Mae B.S. 0 1 900.00
(2) “ it Lescher, Vera A.B. 13 0 1148.00
1-5 “ it Cooke, Mrs. Eleanor A.B. 0 0 900.00
VV-J unior a Bowen, E. A. 33/4C (no degree) 22 4 1808.49

TA B LE  9.
A  COMPARATIVE TABLE OF HISTORY TEACHERS IN HIGH SCHOOLS 

WITH A.B. DEGREES.

Experience
School Teacher Training L. R. Other Salary

N. Senior H. Gravelly, Treopia 
W. Senior H. Stegeman, Hattie

B.S.
A.B.

26
13

0
12

$ 935.63 
1573.12



68

TABLE 10.

A  CO M PA R ATIV E  TABLE OF H O M E  E C O N O M IC S  TEACH ERS IN  H IG H
SCHOOLS W IT H  A.B. DEGREES.

Experience
School Teacher T raining L. R. Other Salary

N. Senior H. Bass, Bernice B.S. 5 1 $ 638.50
W . Senior H. Chisholm, Allie B.S. 4 0 980.25it it Speer, Dixie D. B.Sc. 0 0 900.00it it Dupree, Grace B.S. 2 9 939.75it it Britt, Bernice A.B. 0 10 945.00

TA B LE  11.

A  COMPARATIVE TABLE OF MUSIC AND BAND TEACHERS IN HIGH SCHOOLS 
WITH A.B. DEGREES OR LESS.

Experience
School Teacher Training L .R . Other Salary

N. Senior H. Bowie, Lester B.S. 5 4 $ 850.00tt it King, Ruth B.M.E. 4 5 730.00
W . Senior H. Meyer, Willard 4 0 1 900.00it it Duncan, Mary Alice 3%C. 0 0 900.00a tt Parker, Robert B.M. 1 0 945.00



69

TABLE 12.
A CO M PA R ATIV E  TABLE OF E L E M E N T A R Y  TE AC H E RS W IT H  A.B. OR
COM PARABLE DEGREES A N D  1-5 YEARS E X PE R IE N CE  IN  L lT T L E  R O C K .

Experience
Negro Teacher Training L. R. Others Salary

S i Pope, Francis B.S.E. 1 3 $ 615
s s Lewis, John A.B. 1 0 615
s s Johnson, Pauline B.S. 0 0 615
s s Wilkerson, Capitola B.S. 1 26 630

White
“ Fair, Mary Nance B.S.E. 0 2 810
“ Threat, Kathryn A.B. 0 810
SS Terral, Mrs. Floyd A.B. 1 2 810
SS Gardner, Mrs. Lewis B.S. 0 810
S S Obersham, Bettie B.S. 0 1 810
S i Carrigan, Mary D. A.B. 0 3 855
s s Street, Juanita A.B. 1 810
s s Thomas, Martha B.S.E. 0 810
s s McCuiston, Elizabeth 0 0 810
s s Smooth, Raymond A.B. 0 810
s s Belford, Susan B.S. 0 0 810
s c Crutchfield, Ann A.B. 1 0 810
s c Isgrig, Nancy Jane A.B. 0 0 810
s c Soard, Dorris A.B. 0 0 810

TA B LE  13.
A  COMPARATIVE TABLE OF ELEMENTARY 'TEACHERS WITH A.B. OR
COMPARABLE DEGREES AND 5-10 YEARS EXPERIENCE IN LlTTLE ROCK.

Experience
Negro Teacher 1 'raining L. R. Others Salary

S i Hamilton, Elizabeth B.S. 6 10 $ 706.00
s c Jackson, Nancy A.B. 5 0 665.50
s c Lee, Danice A.B. 6 1 665.50
s c Rice, Sarah A.B. 7 0 645.25

White
SC Finn, Verna A.B. 5 3 933.
s c Jones, Ruth L.I. 5 5 846.
s c Clapp, Thelma A.B. 6 4 987.
s c Holman, Lucille B.S. 8 0 1014.18
s s Harper, Verna B.S.E. 5 10 1041.
s s Hardage, Edith A.B. 7 1 960.
s s Sittlington, Blanche B.M. 5 0 960.
s s Wage, Georgia A.B. 7 5 1041.
S i Dupree, Jeanne B.S. 6 3 960.



70

TABLE 14.
A C O M PA R ATIV E  TABLE OF E L E M E N T A R Y  TE AC H E RS W IT H  A.B. OR
COM PARABLE DEGREES A N D  1 0 - 2 0  YEARS E XP E R IE N C E  IN  L lT T L E  R O C K .

Negro Teacher
Experience

Training L. R. Others Salary

it

White
i t

Patterson, Alva 
Touchstone, Bertha 
Waters, Elnora

Mason, Byrnice 
Perimen, Bess 
Reynold, Averell 
Kinlay, Francis 
Willard, Beryl 
Shelton, Mary H. 
Reeves, Jessie 
Apple, Lorraine

A.B. 12
B.S. n y 2
A.B. l i

B.S. 14
A.B. 13
A.B. 12
A.B. 13*4
A.B. 11
B.S.E. 13
A.B. 12
B.S.E. I4y2

5 $ 733.00
5 736.38
0 735.29

2 1436.15
0 1045.28
0 1043.
0 1047.46
0 1041.61
0 982.28
0 1084.
0 1108.58

TA B LE  15.
A  COMPARATIVE TABLE OF ELEMENTARY TEACHERS WITH A.B. OR 
COMPARABLE DEGREE AND MORE THAN 20 YEARS EXPERIENCE IN

L ittle Rock.
Experience

Negro T eacher Training L . R . Others Salary

t( Davis, Corselia A.B. 26 6 $ 884.71
i t Pattillo, Emma B.S. 27 0 1012.77
ft Sampson, Gertuse A.B. 22 0 764.81
i t Roundtree, Thesa B .S . 23 0 764.81
i t Gilliam, Cora A.B. 21 10 825.58

White
i f Chandler, Blanche B .S . 29 0 1603.90
“ Jordan, Pauline A.B. 26 0 1429.72
“ Walker, Marqurite A.B. 35 1 1634.91
i t Tunkin, Blanche B.S.E. 21 0 1276.35
i f Autry, Ester A.B. 24 2 1391.98
“ Schriver, Mary A.B. 21 3 1354.08
i t Pearson, Alice L.I. 28 8 1536.96
i t Hauler, Grace B.S. 26 4 1418.84
ft Renfrow, Mina B.S. 29 1 1634.91



71

TABLE 16.

A  CO M PA R ATIV E  T A BLE  OF E L E M E N T A R Y  TE AC H E RS W IT H O U T  DEGREES
A N D  LESS T H A N  1 0  YEARS E XP E R IE N C E  IN  L lT T L E  R O C K .

Experience
Negro T eacher Training L .R . Others Salary

i f Burns, Cleo 2 6 0 $ 625.00
Bush, Marjorie 2 1 0 615.00

f i Burton, Hazel 2y2 ■ 7 0 665.65
i f Green, Thelma 93-hr. 7 0 630.00
i f Dander, Alice 3 9 0 645.25
a Wilson, Rosa 3 j j 6 0 625.00
a

White
Lee, Elnora 3^ 0 615.00

i f Pace, Josephine 2 6 6 879.00
i f Arance, Leah 3 7 4 879.50
a James, Mildred 2 9 0 906.00
a Jacobs, Louise 3 3 4 825.00
i f Frost, Nell 1 7*/2 3 825.00
i f Smith, Willie 2 y 5 9 879.00
i f Bond, Alice 2C 1 1 810.00
a Grogan, Stella 3 0 12 810.00
a Whitley, Winnie 66-hr. 4 13 879.00



72

TABLE 17.

A  COM PA R ATIV E  T A BLE  OF E L E M E N T A R Y  TE AC H E RS W IT H O U T  DEGREES
A N D  FROM 1 0 - 2 0  YEARS E XP E R IE N C E  IN  L lT T L E  R O C K .

Negro Teacher Training
Experience . 

L. R. Others Salary

ii Lee, Bertha 3K 13 17 $ 729.02
a Rutherford, Alice 2 15 0 678.10
a Abner, Irene C. 3 17 3 739.41
a Nichols, J. C. 3 15 0 678.10
a Collier, Bennie 3 14 14 667.79
a Conway, Essie 3 15 0 719.50
a Jordan, Sallie 2 15 0 678.10
a White, Almeta 2 18 0 739.41
a Cobb, Marion 2/2 14 0 977.65
a Farmer, Margaret 2 18 0 1198.41
a Grayson, Mary Lee 2 16 0 1081.84
a Owen, Jewell 1 15 10 1120.28
a Brookfield, Cora 3 17 8 1276.35
a Bullington, Inez 3 19 6 1391.95
a Frankel, Caroline l / a 20 10 1354.08
a Goodwin, Ernestine 2J4 17 0 1198.41
a Park, Mildred 1 17 4 1238.22
a Toland, Brooks 2 13 0 977.40
a Lemon, Mrs. C. N. 2 11 4 1006.34
a Witsell, Cherry 3 12 0 949.85
a Murphy, Elizabeth 2 17 3 1288.34
a Woodard, Marie 54-hrs. 18 0 1120.26
a Pittman, Marjorie 2 14 0 1198.27
a Tunnah, Helen 1 18 0 1120.26



73

TABLE 18.
A  C O M PARATIVE TABLE OF E L E M E N T A R Y  TE AC H E RS W IT H O U T
DEGREES A N D  MORE T H A N  2 0  YEARS E XP E R IE N C E  IN  L lT T L E  ROCK.

Negro Teacher Training
Experience 

L. R. Others Salary

ft Dickey, Ella 2 33 0 $1012.77it Bruce, Cornelia 0 32 7 1195.49tt Murphy, Vera 2 32 0 1012.77tt Ingram, Emma 2 34 0 1012.77tt Littlejohn, G. B. 2 37 21 1189.64ft Anthony, B. E. D. 3 26 0 833.52ft Curry, Norena 2 23 0 782.04f t Routen, Estelle 3/4 21 1 772.37tt Lewis, Blanche 2 21 0 739.41tt Cline, Fannie 2 33 1 1455.41tt Power, Maggie 2 40 0 1536.99tt Dill, Gertrude 1 24 2 1316.09tt Hairston, Maude 3 22 15 1380.15it Jones, Nell 2 23 2 1402.89ft Oliver, Effie 2 21 8 1276.35tt Bruner, Nell 2 22 0 1276.35ft Davis, Katie M. 2 23 0 1286.32ft Earl, Annie 3 22 >4 9 1433.78tt McDaniel, Emma Katie 1/4 25*4 1/4 1371.60tt Middleton, Opal 2 22 3 1611.34it Dunnvant, Foe 2 23 0 1278.42
“ Lipscomb, Vanda 3 23 0 1377.04ft Brown, Amelia 3 22 0 1288.34

McKinney, Grace m 22 0 1276.35ft Martin, Claytie 2 24 1 1316.10



74

APPENDIX C.

Opinion from the Bench.

IN THE

UNITED STATES DISTRICT COURT, 

F or th e  E astern D istrict oe V irginia .

Civil Action 
No. 6

Notwithstanding that the Court heretofore indicated to 
counsel for plaintiffs and defendants what its conclusions 
would probably have to be upon the evidence presented, it 
had assumed that counsel would want to discuss the evi­
dence further before finally submitting the case for decision. 
Careful notes of the substance of the testimony of the wit­
nesses were made during the course of the trial, particularly 
of the testimony giving comparisons of the salaries of white 
teachers and principals and colored teachers and principals 
having substantially the same professional qualifications. 
Notes were also taken on the testimony with respect to the 
variable schedule which the evidence discloses was put into 
effect at the beginning of the 1941-1942 school terms. There 
can be no serious doubt from the evidence that discrimina­
tions do exist in the school system in favor of the white 
teachers and principals and against the plaintiff and the 
other colored teachers and principals in the system. The 
Court has not undertaken to calculate the exact extent of 
these discriminations in dollars, but would roughly estimate 
that it is approximately in the ratio of three to two; that is

D orothy E. R oles, elt al. 
vs.

S chool B oard oe the  C ity  of N ewport 
N ew s , et al.



75

to say, that while a white teacher of certain professional 
qualifications receives $3.00, a colored teacher of similar 
professional qualifications, receives $2.00. The ratio may 
be a little higher or lower than that, but that is a rough 
approximation of the difference, and is used here for the 
purpose of illustration. Accordingly, the Court’s conclusion 
is that the alleged discriminations are clearly and definitely 
established by the evidence.

Various suggestions or explanations in defense of the 
discrimination have been offered. One is that the cost of 
living of the white teacher is substantially greater than that 
of the colored teacher. That may or may not be a fact. 
It probably is true to a large extent. However, the differ­
ence may be due at least in part to the fact that many of 
the colored teachers have to live under conditions that white 
teachers ordinarily would not be willing to live under. But 
it is patent that the difference in the cost of living of white 
teachers and colored teachers can not be the basis of a valid 
discrimination under the constitution. It will not justify a 
school board or any school authorities in paying a substan­
tially greater salary, all other things being equal, to a white 
teacher than to a colored teacher. The same situation may 
very well be said to exist among white teachers. Some of 
them undoubtedly live under much more economical con­
ditions than others, but to say to those whose cost of living 
is in lower brackets that they shall receive, for example, 
only $100.00 a month, while those whose cost of living is 
much higher shall receive $140.00 or $150.00 per month, 
could hardly give rise to a valid discrimination, although 
the constitutional provisions which are the basis of this suit 
would not apply to discriminations leveled at white teachers 
only.

Another suggestion made to the Court was the condition 
of the City’s budget. I assume from what counsel has said



76

today that that situation has been or will be met. Of course, 
if the City’s budget will not justify bringing the salaries of 
the colored principals and teachers up to substantial equal­
ity with the salaries of the white teachers and principals 
similarly qualified, and at the same time continuing the 
salaries of the white teachers and principals in accordance 
with the schedules which have been established for them, 
that will not justify thereafter paying the white teachers in 
full and paying the colored teachers what is left. In such a 
situation the School Board would have to revamp all of its 
schedules and pay principals and teachers similarly situ­
ated with respect to professional qualifications on the same 
basis, without regard to race or color: Nothing short of 
that would meet the constitutional requirements. In other 
words, all similarly situated must be treated in substantially 
the same manner with respect to compensation and the 
budget may not be balanced by paying white teachers and 
principals in full and, in effect, charging the deficit to the 
colored teachers and principals.

With respect to the variable schedule which has been 
frequently referred to both in the testimony and arguments, 
the Court was at first favorably inclined to that type of 
schedule. It not infrequently occurs that two principals or 
teachers, without regard to whether they are white or 
colored, appearing to have of record the same professional 
qualifications, are not in truth and fact equally qualified to 
perform the duties assigned to them. One may possess 
strong personality and aptitude for the performance of his 
or her duties that the other will never acquire no matter 
how long he or she may engage in school work, and that 
observation is just as applicable to colored teachers and 
principals as to white teachers and principals. In fact, it 
is a rule that applies to all activities of life. For that reason 
the Court was at first impressed with the argument in favor



77

of the allowance of a variable schedule. However, when the 
evidence was introduced it disclosed that the variable sched­
ule, although it is said to have been under consideration for 
sometime prior thereto, was not put in force until after the 
demands of the plaintiff and her associates had been made 
upon the School Board for equalization of the salaries, with­
out regard to race or color. This, in itself, gave rise to the 
idea that the variable schedule might be an after-thought 
that resulted from the demands of the plaintiffs rather than 
from a real intention to use a variable schedule which takes 
into consideration the purely personal qualifications of prin­
cipals and teachers, as well as other matters. However, the 
evidence went much farther than that. It disclosed without 
any substantial conflict that in every instance where special 
treatment was given to a white teacher or principal on ac­
count of his or her personal qualifications, such principal 
or teacher received favorable treatment in the way of in­
creased compensation, while in no instance had such favor­
able treatment been accorded to a colored principal or 
teacher on account of his or her special personal qualifica­
tions. Under these circumstances the Court does not feel 
justified in approving in its decree the variable schedule.

Without prolonging the discussion, the evidence estab­
lishes without any very substantial conflict, the charges of 
discrimination made in the complaint. It further indicates 
that the discrimination was, in fact, based on race or color ; 
there is a lack of any substantial evidence tending to show 
that the discrimination was based on any other ground. The 
Court therefore concludes that plaintiff and those similarly 
situated are entitled to relief substantially as prayed in the 
complaint.







[3957]

L aw yers P ress, I nc., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300