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

    I n the

g>itpnw (Eourt of tip UntPft States
October Term, 1970 

No. 561

Sweeny I ndependent School D istrict, et al.,

Petitioners,
v.

M ildred H arkless, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

Jack Greenberg
James M. Nabrit, III
Conrad K. H arper

10 Columbus Circle 
New York, New York 10019

W eldon H. B erry
711 Main Building 
Houston, Texas 77002

W . H aywood B urns
112 West 120th Street 
New York, New York 10027

A nthony G. A msterdam
Stanford University Law School 
Stanford, California 99305

Attorneys for Respondents



TABLE OF CONTENTS

PAGE

Opinion Below ....................................................................  1

Questions Presented ........................................................  1

Constitutional and Statutory Provisions Involved ....... 2

Statement ............................................................................ 4

Reasons foe Denying the W bit

I. Review by This Court Is Unnecessary Where It 
Is Now Well Settled That School Officials Are 
Subject to 42 U.S.C. §1983 .....................................  7

II. Certiorari Should Be Denied Because the Issue 
Whether a School District Is Liable Under 42 
U.S.C. §1983 Is Premature ...................................  10

III. Certiorari Should Be Denied Because the Issue 
Whether Jury Trial Was Properly Granted Is 
Premature and May Be Mooted .......................... 11

Conclusion ....................................................................................  12

Table of A uthorities

Cases:

Aetna Ins. Co. v. Paddock, 301 F.2d 807 (5th Cir.
(1962) .............................................................................  11

Baker v. Carr, 369 U.S. 186 (1962) .............................. 8, 9
Bonner v. Texas City Independent School District,

305 P. Supp. 600 (S.D. Tex. 1969) ............................. 10
Brown v. Board of Education, 347 U.S. 483 (1954) ....... 7



11

PAGE

Daniel v. Paul, 395 U.S. 298 (1969) .................................. 10
Davis v. County School Board, decided sub nom. Brown

v. Board of Education, 347 U.S. 483 (1954) ..............  8, 9
Davis v. Mann, 377 U.S. 678 (1964) .............................. 8, 9

Ex Parte Young, 209 U.S. 123 (1908) .............................. 8

Griffin v. County School Board, 377 U.S. 218 (1964) .... 8, 9

Hurwitz v. Hurwitz, 136 F.2d 796 (D.C. Cir. 1943) .... 11

Monroe v. Pape, 365 U.S. 167 (1961) ......................4, 5, 7, 9

Nixon v. Herndon, 273 U.S. 536 (1927) ..........................  8

Reynolds v. Sims, 377 U.S. 533 (1964) ..........................  8, 9
Rinaldi v. Yeager, 384 U.S. 305 (1966) .......   8, 9

Salazar v. Dowd, 256 F. Supp. 220 (D.Colo. 1966) ....... 7
Sanberg v. Daley, 306 F. Supp. 277 (N.D. 111. 1969).... 7
Schetter v. Housing Authority of City of Erie, 132 

F. Supp. 149 (W.D. Pa. 1955) .....................................  11

WMCA v. Lomenzo, 377 U.S. 633 (1964) ......................  8, 9
Wolf v. Calla, 288 F. Supp. 891 (E.D. Pa. 1968) ........... 11

Constitutional and Statutory Provisions:

First Amendment.................. ...........................................  2

Seventh Amendment ......................................................... 2

Fourteenth Amendment
28 U.S.C. § 1331 ...........

28 U.S.C. § 1343(3) .....
42 U.S.C. § 1983 ...........

...............1, 2, 8,10

....................2, 3,10

...............2, 3, 4,10
1, 2, 3, 4, 7, 8, 9,10



I n the

iatpmtu? (to rt at tln> Htttfrft States
Ogtobee Teem, 1970 

No. 561

Sweeny I ndependent S chool District, et al.,

Petitioners,
v.

M ildred H arkless, et al.,

Respondents.

ON PETITION EOR A WRIT OE CERTIORARI TO THE 
UNITED STATES COURT OE APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

Opinion Below

Since the filing of the petition for a writ of certiorari, 
the opinion of the United States Court of Appeals for the 
Fifth Circuit and the dissenting opinion of Judge Jones 
have been reported at 427 F.2d 319, 324.

Questions Presented

1. Under 42 U.S.C. §1983 and the Fourteenth Amend­
ment may equitable relief, including back pay for black 
teachers discriminatorily not rehired because of school de­
segregation, be awarded against a school district’s board 
of trustees and superintendent sued only in their official 
capacities ?



2

2. Assuming arguendo that school officials are liable to 
equitable remedies under 42 U.S.C. §1983 for racial dis­
crimination, should certiorari be granted to decide whether 
the school district is also liable!

3. Assuming arguendo that school officials are liable to 
equitable remedies under 42 U.S.C. §1983 for racial dis­
crimination, should certiorari be granted to decide whether 
the Fourteenth Amendment, together with 28 U.S.C. 
§1343(3) or 28 U.S.C. §1331, authorize this action inde­
pendent of 42 U.S.C. §1983!

4. Should certiorari he granted on the issue of jury trial 
where:

(a) The Fifth Circuit, for the district court’s guid­
ance, reversed the grant of jury trial in an equi­
table action;

(b) pending motions in the district court may moot the 
jury trial issue;

(c) the jury trial issue is not clearly presented because 
the district court denied motions which, if re­
viewed here, would likely dispose of this case on 
the grounds that the arguable bases for jury trial 
no longer existed or the demand for jury trial was 
untimely !

Constitutional and Statutory Provisions Involved

This case involves the First, Seventh and Fourteenth 
Amendments to the United States Constitution. This case 
also involves the following statutes:

28 U.S.C. §1331.

(a) The district, courts shall have original jurisdic­
tion of all civil actions wherein the matter in eontro-



3

versy exceeds the sum or value of $10,000, exclusive 
of interest and costs, and arises under the Constitu­
tion, laws, or treaties of the United States.

(b) Except when express provision therefor is other­
wise made in a statute of the United States, where the 
plaintiff is finally adjudged to he entitled to recover 
less than the sum or value of $10,000, computed with­
out regard to any set off or counterclaim to which the 
defendant may be adjudged to be entitled, and exclu­
sive of interests and costs, the district court may deny 
costs to the plaintiff and, in addition, may impose 
costs on the plaintiff.

28 U.S.C. §1343(3).

The district courts shall have original jurisdiction 
of any civil action authorized by law to be commenced 
by any person:

* * #
(3) To redress the deprivation, under color of any 

State law, statute, ordinance, regulation, custom or 
usage, of any right, privilege or immunity secured by 
the Constitution of the United States or by any Act 
of Congress providing for equal rights of citizens or 
of all persons within the jurisdiction of the United 
States.
42 U.S.C. §1983.

Every person who, under color of any statute, ordi­
nance, regulation, custom, or usage, of any State or 
Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within 
the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the Con­
stitution and laws, shall be liable to the party injured 
in an action at law, suit in equity, or other proper 
proceeding for redress.



4

Statement

Respondents are ten black teachers who were not rehired 
for the 1966-67 school year by the Sweeny Independent 
School District. The instant action, charging racial dis­
crimination, was filed May 23, 1966, seeking the equitable 
remedies of injunctive relief and back pay in the United 
States District Court for the Southern District of Texas 
pursuant to 28 U.S.C. §1343(3), 42 U.S.C. §1983, and the 
Fourteenth Amendment (A. 1-14, 61-62, 83-84, 206-18J.1

Respondent black teachers named as defendants the school 
district, the superintendent of schools, and the members of 
the district’s board of trustees in both their individual and 
official capacities. But at the time of voir dire examina­
tion of the jury panel2 on March 3, 1969, and because of 
the unwillingness of some members of the panel to assess 
a monetary award against the defendants individually (A. 
224-40), respondents’ counsel moved to dismiss the official 
defendants in their individual capacities (A. 232). The 
motion was granted leaving as defendants only the school 
district and the individual defendants in their official ca­
pacities (A. 237-39).

Subsequently, during trial, and in response to a sugges­
tion by the district court that because of Monroe v. Pape, 
365 F.S. 167 (1961) subject matter jurisdiction over the 
reiuainiug defendants might be lacking, petitioners moved, 
to dismiss on this ground (A. 244-49. 253-54' On March 
U\ 1969, the case was submitted to the jury m  special

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5

interrogatories and the jury rendered a verdict.3 But the 
district court, on June 6, 1969, dismissed the second 
amended complaint without resolving any other issues on 
the grounds that Monroe v. Pape, supra, did not permit 
recovery against the school district and its officials sued 
in their official capacities.

3 The jury found that (A. 118-23) :
Question Number 1: Do you find from a preponderance of 
the evidence that any plaintiff’s race (Negro) was a factor 
in the failure of the Board of Trustees of The Sweeny Inde­
pendent School District to offer re-employment for the school 
year 1966-67 ?
Answer: “No”

Question Number 2A: Do you find from a preponderance of 
the evidence the Board of Trustees of the District, on the 
occasion^ of its regular meeting of March 8, 1966, or at any 
time prior thereto, decided that the professional (teaching) 
staff of the system (District) would have to be reduced as a 
result of desegregation?
Answer: “Yes”

Question Number 2B: If, but only if, you have answered 
Question Number 2A “Yes” , you will answer this question: 
Do you find from a preponderance of the evidence that when 
the Board determined at the March 8, 1966 meeting not to 
offer plaintiffs re-employment for the school year 1966-67, the 
qualifications of any plaintiff to teach in the District was 
not and had not been fairly and impartially evaluated and 
compared with the qualifications of all other teachers who 
taught in the system (District) during school year 1965-66. 
without consideration of the fact such plaintiff was a Negro ' 
Answer: “No”

Question Number 3A :  It is undisputed in the record that a ; 
ter March 8, 1966 the Board of Trustees decided to A'a  :  a  

new teachers from outside the system (not employed b\ A s 
District during 1965-66), to fill vacancies for the year hss < 
created by the displacement of teaching staff result mg free 
desegregation. Bearing this in mind, do you find from a pre­
ponderance of the evidence that before 'filling any such vs



6

On appeal, the United States Court of Appeals for the 
Fifth Circuit, on June 2, 1970, reversed, 2-1, holding that 
a school district and its officials are liable to suit under 
42 U.S.C. §1983 and that in an equitable action for injunc­
tive relief and back pay, jury trial is not required.

caney, the Board failed to determine that any plaintiff was 
not qualified to fill any such vacancy ?
Answer: “No”

Question Number 3B: With respect to any plaintiff whose 
name you have written in the space next above provided, do 
you find from a preponderance of the evidence that the Board 
failed to evaluate the qualifications of such plaintiff to fill 
such vacancy fairly and impartially ?
Answer: No Answer

Question Number 4: Do you find from a preponderance of the 
evidence that the Superintendent Fred Miller and the Board 
of Trustees acted in good faith at all times and in every 
respect in the process of the Board’s decision not to offer any 
plaintiff re-employment for the school year 1966-67?
Answer: “Yes”

Question Number 5: Do you find from a preponderance of 
the evidence that a factor relied upon by the Board in reach­
ing its decision not to offer any plaintiff re-employment for 
the year 1966-67 after the filing of this law suit on May 23, 
1966, was the fact that any such plaintiff was a party to 
this law suit?
Answer: “Yes”

I f  you have answered this Question Number 5 “Yes” , then 
in the space next provided write the name of each plaintiff 
with respect to which you have so found; but, if you have 
answered the question “No” , you will not write any* name in 
such space.

Mildred Hartless, John P. Jones, Robert C. Woodard, Willie 
Dotson, Rillion F. Jammer, Benjamin F. Periston and Velma 
L. Shelby



7

REASONS FOR DENYING THE WRIT

I.
Review by This Court Is Unnecessary Where It Is 

Now Well Settled That School Officials Are Subject to 
42 U.S.C. §1983.

At least since Brown v. Board of Education, 347 U.S. 483 
(1954) it has been clear that 42 U.S.C. §1983 grants a right 
of action for the racially discriminatory conduct of school 
officials. Petitioners’ argument to the contrary is both 
frivolous and revolutionary (see Petition for a Writ of 
Certiorari at 10-11). Petitioners assert that Monroe v. 
Pape, 365 U.S. 167 (1961)—a case not involving equitable 
relief for official racial discrimination—somehow reduced 
the power of federal courts to curb racially discriminatory 
school boards. Monroe merely held that the city of Chi­
cago was not liable in damages, in a respondeat superior 
context, for the torts of its police officers. We agree with 
the Court of Appeals that footnote 50 of the Monroe 
opinion, 365 U.S. at 191, means that earlier cases decided 
by this Court allowing equitable relief against municipali­
ties do not permit the inference, after Monroe, that dam­
age actions may be maintained against municipalities un­
der the doctrine of respondeat superior. 427 F.2d at 322. 
Similarly, officials not personally involved in deprivation 
of civil rights are also not subject to § 1983. Salazar v. 
Dowd, 256 P. Supp. 220, 223 (D. Colo. 1966); Sanberg v. 
Daley, 306 F. Supp. 277 (N.D. HI. 1969). The instant case 
is one, however, where respondeat superior is not at issue 
since the school board members named as defendants were 
the officials who actually refused to rehire respondent black 
teachers.

This Court has repeatedly exercised its power over state 
officials sued only in their official capacities under § 1983



8

or the Fourteenth Amendment.4 * E.g., Ex Parte Young, 
209 U.S. 123,159-60 (1908) (state attorney general) ;B Baker 
v. Carr, 369 U.S. 186 (1962) (state officials, including the 
secretary of state and the attorney general) ;6 Reynolds v. 
v. Sims, 377 U.S. 533, 537 (1964) (state election officials); 
WMCA v. Lorenzo, 377 U.S. 633, 635 (1964) (state election 
officials); Davis v. Mann, 377 U.S. 678, 680 (1964) (state 
election officials); Griffin v. County School Board, 377 U.S. 
218, 228 (1964) (county board of supervisors) ;7 Rinaldi v.

4 Significantly in Nixon v. Herndon, 273 U.S. 536 (1927) Mr. 
Justice Holmes, writing for the Court, held that the Fourteenth 
Amendment forbids state court judges to bar blacks from voting 
in a Democratic primary election as required by state statute. The 
action was brought against the judges of elections for damages 
of $5000. 273 U.S. at 539. The amended petition, founded upon 
the predecessor of §1983 and other statutes (R. at 4-5), sought 
relief against the officials only as officials (R. at 3) :

The amended petition sought “ . . .  to redress an injury 
which he [plaintiff] sustained by reason of the acts of defen­
dants in their official capacities discriminating against him by 
reason of his race and color, in violation of the constitution 
and laws of United States.” (emphasis supplied)

In their motion to dismiss the defendant judges raised claims, 
inter alia, of failure to state a cause of action and the court’s 
inability to grant relief (R. at 8 ) ;  the motion to dismiss was sus­
tained and the cause dismissed (R. at 9). This dismissal was, of 
course, reversed by this Court in Nixon v. Herndon, supra.

6 The state attorney general was sued only in his official capacity 
as is made clear in the following papers contained in the Young 
record on file in this Court: Petitioner’s Petition for Writs of 
Habeas Corpus and Certiorari and Motion for Leave to file, at 8, 
15 (copy of original bill of complaint annexed to Petition) ■ Peti­
tioner’s Brief on Hearing of Rule to Show Cause, at 6-8.

6 Record, at 5, Baker v. Carr, 369 U.S. 186 (1962).

7 The district court below misapprehended the importance of 
the Griffin holding by erroneously asserting Griffin was not a 
§1983 case. 300 F. Supp. at 805. But Griffin did in fact arise under 
the Act of April 20, 1871, now codified in part and 42 U.S.C. §1983. 
The Griffin litigation began in 1961 by the filing of an amended 
supplemental complaint in Davis v. County School Board, decided 
sub nom. Brown v. Board of Education, 347 U.S. 483 (1954). The



9

Yeager, 384 U.S. 305 (1966) (state prison officials and 
county treasurer) ,8 Nor must it be forgotten that in Monroe 
itself, it was the City of Chicago, not any of its officials, 
which was held not subject to damages under § 1983.

In view of this list of precedents before and after Mon­
roe, petitioners take two position: (1) this Court did not 
mention Monroe in those cases postdating 1961; and (2) 
several lower federal courts have held officials not subject 
to § 1983. (Petition for a Writ of Certiorari at 10-12.) The 
first position perpetuates a misunderstanding of what Mon­
roe held. It is not necessary for this Court to mention 
Monroe in cases where it does not apply. Since Monroe 
involved a municipality sued for damages as respondeat 
superior, its holding does not affect claims for injunctive 
and monetary relief against officials sued in their official 
capacities for their own acts, as in Rinaldi; nor does Mon­
roe’s holding affect claims for equitable relief against offi­
cials sued in their official capacities to enjoin those officials 
from acting unconstitutionally as in Baker v. Carr, Rey­
nolds v. Sims, WMCA v. Lomenzo, Davis v. Mann, and 
Griffin.

Petitioners’ second position—i.e., that 55 federal cases 
have concluded contrary to the Fifth Circuit, that § 1983 
does not apply to officials—involves imprecision as to the 
holdings of those cases. Only one of the 55 cases is in point 
because it involved, as here, equitable relief from racial 
discrimination by officials not sued as respondeat superior.

amended supplemental complaint—while adding new parties such 
as the county board of supervisors— did not disturb the original 
statutory basis of the action, i.e., §1983. Davis Record at 5, Brown 
v. Board of Education, 347 U.S. 483 (1954); Record at 20, Griffin 
v. County School Board, 377 U.S. 218 (1964).

8 In Rinaldi, the officials specifically claimed by way of defense 
that the acts complained of were done in their official capacities. 
Record at 1, 13-16, Rinaldi v. Yeager, 384 U.S. 305 (1966).



10

This case9 was decided subsequent to the district court 
opinion below by the same district court judge whose deci­
sion in the instant case was reversed by the Fifth Circuit. 
The other 54 cases did not involve non-vicarious liability 
in equity for official racial discrimination. For this reason, 
petitioners have shown no conflict between the Fifth Cir­
cuit’s opinion below and other federal courts. In short, 
the Fifth Circuit was plainly right in holding school offi­
cials liable for racial discrimination.

II.

Certiorari Should Be Denied Because the Issue 
Whether a School District Is Liable Under 42 U.S.C. 
§1983 Is Premature.

In view of the well-settled law, set out in Argument I, 
that school officials are liable under 42 U.S.C. § 1983 for 
racial discrimination, it is premature for this Court to 
reach the question whether a school district is also liable. 
This is so because equitable relief against the school offi­
cials would, as a practical matter, satisfy the claims of 
respondent black teachers and make academic the issue 
of school district liability. While it was proper for the 
Fifth Circuit to decide the question of school district lia­
bility for the guidance of the district court, this Court does 
not sit to render advisory opinions; therefore the issue of 
school district liability need not be faced here. See, e.g., 
Daniel v. Paul, 395 U.S. 298, 300 n. 1 (1969).10

9 Bonner v. Texas City Independent School District, 305 F. Supp. 
600, 616 (S.D. Tex. 1969).

10 For essentially similar reasons— and the added fact that the 
Fifth Circuit did not reach the question— it is also unnecessary for 
this Court to decide whether the Fourteenth Amendment together 
with 28 U.S.C. §1343(3) or 28 U.S.C. §1331 authorize this action 
independent of 42 U.S.C. §1983.



11

III.

Certiorari Should Be Denied Because the Issue 
Whether Jury Trial Was Properly Granted Is Premature 
and May Be Mooted.

For the guidance of the district court, which dismissed 
the complaint without reliance on the verdict, the Fifth 
Circuit below also held that jury trial had been erroneously 
granted. This issue, brought to this Court’s attention by 
petitioners, is premature for these reasons: (a) since the 
Fifth Circuit predicated reversal upon the well-settled law 
discussed in Argument I, other grounds for the Fifth Cir­
cuit’s action need not be faced here; (b) the jury trial issue 
may be mooted by subsequent district court proceedings;
(c) the jury trial issue is not clearly presented on this 
record. The first of these reasons is self-evident and it also 
applies to other issues in this case discussed in Argument 
II, supra. The second of these reasons rests upon the fact 
that the special verdict set out supra at pp. 5-6, n. 3, is 
arguably construable for seven of the ten respondents or 
for the petitioners; consequently the district court can 
hardly enter judgment unclarified by its own findings. 
These findings may, in effect, render the verdict advisory 
and thus well within established equity practice. See Hur- 
witz v. Hurwitz, 136 F.2d 796 (D.C. Cir. 1943); Aetna Ins. 
Co. v. Paddock, 301 F.2d 807 (5th Cir. 1962); Wolff v. Calla, 
288 F. Supp. 891 (E.D. Pa. 1968), Schetter v. Housing Au­
thority of City of Erie, 132 F. Supp. 149 (W.D. Pa. 1955). 
Furthermore, in the district court, respondent black teach­
ers have pending motions for judgment n.o.v. and for new 
trial. If either of these motions is granted, the jury trial 
question is moot on this record.

Finally, the jury trial question is inextricably connected 
to respondent black teachers’ right to dismiss that portion



12

of their second amended complaint arguably giving the 
right to jury trial (A. 71, 84-86, 89-95, 249-52) as well as 
the arguably untimely demand for jury trial by peti­
tioners.11 It is likely, therefore, that the right to jury trial 
cannot be decided on this record because of these factors; 
in which case, the certiorari jurisdiction should not be 
exercised.

CONCLUSION

For the foregoing reasons, certiorari should be denied.

Respectfully submitted,

Jack Greenberg
James M. N abrit, III
Conrad K. H arper

10 Columbus Circle 
New York, New York 10019

W eldon H. B erry
711 Main Building 
Houston, Texas 77002

W. H aywood B urns
112 West 120th Street 
New York, New York 10027

A nthony G. A msterdam
Stanford University Law School 
Stanford, California 99305

Attorneys for Respondents

11 Petitioners waived their right to jury trial on the original 
complaint but demanded jury trial on the first amended complaint 
which did not change the relief sought but only added a due process 
of law theory to the equal protection of the laws claim in the 
original complaint (A. 61-63). Over respondents’ objections, the 
district court permitted jury trial as to all issues merely because 
an additional theory had been added. 278 P. Supp. 637 (A. 95-100)



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