Morris v. Williams Briefs
Public Court Documents
May 3, 1945

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Brief Collection, LDF Court Filings. Morris v. Williams Briefs, 1945. ad9e116c-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f5d5decf-91a0-4122-8a4c-d8c2b1c71044/morris-v-williams-briefs. Accessed July 11, 2025.
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KARRIS » E. T A C. C, A, IN THE luitrii Btnti's (Etrrutt Court nf Appeals E ighth Circhit No. 12,887 Civil Susie Morris, for herself and for others similarly situated, Frances B. H ibbler, Intervener, Appellants, v. Robert M . W illiams, Chairman; Murray O. Reed, Secre tary; Mrs. W . P. McDermott; Mrs. W . F. Rawlings; Dr. R. M . Blakely and E. F. Jennings, Constituting the Board of Directors of the Little Rock Special School District and Russell T. Scobee, Superintendent of Schools, Appellees. APPEAL PROM THE DISTRICT COURT OP THE UNITED STATES POR THE EASTERN DISTRICT OP ARKANSAS. BRIEF FOR APPELLANTS. Edward R. Dudley, New York, New York, J. R. Booker, Little Rock, Arkansas, T hurgood Marshall, New York, New York, W illiam H. Hastie, Washington, D. C. Counsel for Appellants. Myles A . H ibbler, Little Rock, Arkansas, O f Counsel. I N D E X PAGE Statement of the Ca s e ______________________ .___________ Statement of F a c t s ---------- ----- ------------------------------------------ Method of Fixing Salaries_____________________ New Teachers___________ 1— .’-------------------------- Old Teachers _____________________________ ___ Policy of Board in the Past____________________ Bonus Payment _______________________________ S tatement of P oints T o B e R elied U pon______________ Statement of P oints T o Be A egijed and A uthorities R elied U pon ____ _______________________________________ A rgument _________________________________________________ Introduction __________________ .......____________ 1 ota 4 4 7 8 10 11 14 18 18 I. The Fourteenth Amendment Protects the In dividual Against All Arbitrary and Unrea sonable Classifications by State Agencies____ 20 II. Payment of Less Salary to Negro Public School Teachers Because of Race Is in Vio lation of Fourteenth Amendment __________ 27 III. The Policy, Custom and Usage of Fixing Sal aries of Public School Teachers in Little Rock Violates the Fourteenth Amendment________ 32 IV. The So-Called Rating System in Little Rock Is Not an Adequate Defense to This Action__ 45 Conclusion ________________________________________________ 56 Appendix A ________________________________________ 57 Appendix B ________________________________________ 64 Appendix C ________________________________________ 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 Buckannan v. Warley, 245 U. S. 60 (1917)_____ __— 14, 21 Cliaires v. City of Atlanta, 164 Ga. 755, 139 S. E. 559 (1927) ________________________________________:-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 ah, 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 U. S. 591 (1935)_____________ 15, 25 Pierre v. Louisiana, 306 U. S. 354 (1939)______14,15, 20, 35 Roles 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 Ill PAGE Simpson v. Geary, et al., 204 Fed. 507, 512 (D. C. Ariz. 1 9 1 3 )____________ ______________________________ 21 Smith v. Texas, 311 U. 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) _________________________________________ 17,48 Strauder v. WTest Virginia, 100 U. S. 303 (1879)_.14,15, 20 21, 24 Thomas v. Hibbitts, et al., 46 F. Supp. 368 (1942)_16, 20, 28 29, 36 Truax v. Raich, 239 IT. 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 I IN THE Itutefc States (Utrrmt Court of Appeals E ighth Circuit 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 illiams, Chairman; M urray 0 . R eed, Secretary; M rs. W . P. M cD ermott; M rs. W . F. R aw lings; Dr. R. M. B lakely and E. F. Jen 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 Eock, Arkansas, less salary than that paid to white teachers and principals in the public schools of Little Eock because of their race or color (E. 1-9). The appellees in their answer denied most of the essential allegations of the complaint (E. 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. Trimble entered a final judgment on March 10, 1944, that the complaint of the appellant be dismissed on the merits (E. 817-823). Findings of Fact and Conclusions of Law were filed (E. 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 (E. 823). On April 29, 1944, appellant Frances P. Hibbler, filed her motion and affidavit for leave to intervene (E. 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 (E. 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 wThite and $567 for Negro (E. 18-19). All of the public schools in Little Eock, 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 (E. 182). The same textbooks and same courses of study are used in all schools (E. 191). All public schools are open the same number of days per year and the same number of hours per day'(E. 183). Method of Fixing Salaries. The salaries of teachers are recommended by the super intendent to the Personnel Committee of the hoard after which a report is made by the Personnel Committee to the board for adoption (E. 21). Neither the board nor the Per sonnel Committee interviews the teachers (E. 31, 102). In the fixing of salaries from year to year the board does not check behind the recommendations of the superintendent (E. 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 (E. 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 (E. 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 dicl 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: “ I f 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” (E. 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 (E. 497). It is the policy of the appellees to pay high school teachers more salary than elementary teachers (E. 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 (E. 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 (E. 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 (E. 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” (E. 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 (E. 87-88). The differential over a period of years has increased rather than decreased (E. 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 Avhite 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 he 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 n. 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: “ . . . Onr 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 Rock 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: “ If 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” (R. 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 mendment Protects the I ndi vidual A gainst A ll A rbitrary and U nreasonable Classifi cations by State 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 Courts H ave E stablished M easures of Proof S ufficient to E stablish R acial D iscrimination. 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, 303 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. Yick Wo v. Hopkins, 118 U. S. 356. 16 II. Payment of L ess Salary to Negro P ublic School Teachers B ecause of R ace Is I n V iolation of F ourteenth A mendment. 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. Supp. 792 (1939). Mills v. Board of Education, et al., 30 F. Snpp. 245 (1940). Thomas v. Hibbitts, et al., 46 F. Snpp. 368 (1942). B. M inim um Salary 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. Boles 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, Custom and U sage of F ixing Salaries of P ublic S chool T eachers in L ittle R ock V iolates the F ourteenth A mendment. Mills v. Board of Education, et al., swpra. 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 inim um Salaries for N ew T eachers. 1. Little Rock 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. Salaries of Older Teachers and F lat I ncreases. 1. Blanket Increases on Basis of Race. D. T he D iscriminatory P olicy of D istributing S upple mentary Salary P ayments on an U nequal B asis B ecause of R ace. IV . T he S o-called R ating S ystem in L ittle R ock I s N ot A dequate Defense to T his A ction. A . T he Composite R ating S heets Offered in E vidence by A ppellees Should 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 he Composite B ating S heets A be E ntitled to N o W eight in Detebmining W hetheb the P olicy, Custom and U sage op F ixing Salabies in L ittle B ock I s B ased on B ace. 1. Elementary Schools. 2. High Schools. 3. Batings 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. Race 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 U. 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 U. 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 (1 9 4 1 ) ; Thomas v. Hibbitts 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 he 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. ’ ’3 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.” 4 (2) Measure of Proof Where Discrimination Is Denied by State Administrative Officers. Where a state statute excludes Negroes from jury ser vice the decision as to its constitutionality raises no par ticular difficulties.5 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). See also M yers v. Anderson, 238 U . S. 368 (1915). 4 Lane v. Wilson, 307 U . S. 268, 275 (1939). 5 Strauder v. W est Virginia, supra. 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. D ela w a re 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.6 7 In a more recent case, Pierre v. Louisiana,8 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. K en tucky, 303 U . S. 616 (1938). 8 306 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 percent 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 he 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 U. 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 Wo 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,12 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 Parker, 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.) 13 12 112 F. (2d) 992 (1940) ; certiorari denied, 311 U . S. 693. 13 See also Mills v. Lowndes, et ad., 26 F. Supp. 792 (1 9 3 9 ) ; 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 case,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 Neiv- port News,18 District Judge L uther 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 16 16 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, 33 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 (E. 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 (E. 39); and that the majority of the white teachers “ have better background and more cultural background” (E. 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” (E. 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 Negro 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 lmer 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 Davies 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). iia 46 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 (R. 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 (R. 285-286). (1) 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 (R. 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 Chesnut 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 Sco- bee admitted all salaries were within certain limits: “ Q. j'One 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 Chesnut stated: “ • • . In considering the question o f 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 used in fixing salaries was obtained from 18 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 (R. 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 (R. 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 (R. 187). Superintendent Scobee was unable to explain this or to deny that the reason might have been race or color of the teachers (R. 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 (R. 84-88). It is admitted that the differential has increased rather than decreased over a period of years (R. 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 Rock, 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 (E. 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” (E. 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 you give any exceptions? A. N o” (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 Eock School Board is apparent in the policy of dis tributing supplementary payments to teachers in the Little Eock School System. It is admitted that the money for the supplementary salary payments was received from state tax funds (E. 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 10 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 (R. 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 (R. 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 Spiing 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 (E. 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.” 203 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: 20a Steel v. Johnson, 115 P. (2d) 145, 150. See also Chamber lain v. Kane, 264 S. W . 24 (1924) ; State v. Bolen, 142 W ash. 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.) ( 1) 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 he had to discharge her yet her rating appeared on the composite rating sheets as “ 3 ” (R. 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 (R. 425-426). However, Mr. Scobee “ rated” the appel lant in this case after only one visit of ten minutes (R. 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 (R. 426). However, Mrs. Allison testified that although she rated some Negro teachers she only visited these teachers about once a year (R. 439), and, as a matter of fact, some Negro schools were not visited at all during the past school year (R. 440). Mrs. Allison testified further that in rating these teachers she did not use any previous knowledge of the teachers’ ability (R. 441). Miss Hayes testified she had not visited some Negro schools in the past two years (R. 447). Mr. Webb testified that during the rating of teachers he was “ conscious that some were white and some were colored” (R. 454). He, however, testified that there was “ no intentional discrimi nation” (R. 453). (2) Elementary Schools. In the system of rating used in Little Rock 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 (R. 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. N o” (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 f 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. Hamiltoh’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 (R. 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 hurgood 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. H ibbler, Little Rock, Arkansas, Of Counsel. ^ t o 57 APPENDIX A. Analysis of Complaint and Answer. Complaint. 1. Jurisdiction in General. 2. Jurisdiction for declara tory judgment. . Citizenship of parties. . 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 nswer. 1. Denied. 2. Denied that there is any discriminatory policy. 3. Admitted. 4. a. Admitted. b. Admitted. c. Admitted. cl. 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. P. Jennings are now chairman and secre tary. 58 7. a. b. c. 8. a. b. c. State of Ark. has de- 7. dared public educa tion a state function. General assembly of Ark. has established a system of free pub lic schools in Arkan sas. Administration o f public school system is vested in a State Board, Committee of Education, School Districts and Local Supts. 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. Duty of enforcing this system is im posed on s e v e r a l school boards. 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. 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- . 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. . 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. !. 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 APPENDIX B. T A B L E 1. N e g r o h i g h s c h o o l t e a c h e r s g e t t i n g l e s s s a l a r y t h a n a n y W H IT E TEACH ER IN E ITH E R H IG H OR E LEM EN TARY SCHOOL IN L i t t l e R o c k . Experience Teacher 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. 0 630.00 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 Lewis, Tessie B .M .E . 4 5 Music 730.00 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 T A B L E 2. Woodwork 630.00 A c o m p a r i s o n o f p l a i n t i f f w i t h w h i t e h i g h s c h o o l t e a c h - e r s o f E n g l i s h w i t h e q u a l a n d l e s s e x p e r i e n c e a n d p r o f e s s i o n a l q u a l i f i c a t i o n s . 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 . Z 8 945 Lee, Catherine A .B . 6 2 1060 TABLE 3. A COM PARISON OF E N G L IS H TEACHERS IN H IG H SCHOOLS OF L lT T L E R O C K w i t h M a s t e r ’ s d e g r e e s . Train- Experience Assign- School Teacher ing L . R . Other ment Salary N-Senior-H Campbell, H . B. M .S. 14 0 English it $ 859.77 W-Senior-H Beasley, Louise M .A . 5 3 1135.00 it Hall, Henel M .A . 11 6 it 1348.40 (( Leidy, Edith M .A . 5 i o y 2 a 1243.50 it Scott, Emma M .A . 15 0 a 1350.96 W-Junior-H Mayham, Ella Neal M .A . 5 5 ft 1128.75 if Clauson, Evelyn M .A . 5 5 1045.00 N-Negro W -W hite H-H igh School T A B L E 4. A COM PARATIVE TABLE AS TO YEARS OF EXPERIENCE OF E N G L IS H TEACHERS IN H IG H SCHOOLS W IT H 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 $ 833.52 W-Senior-H Broadhead, Catherine A.B . 14 8 ft 1498.30 i i Key, Helena A.B . 3 13 a 1122.00 i i Oakley, Francille B.S. 12 4 ■ a 1194.10 a Piercey, Mary A.B . 3 16 a 1122.00 a Stalmaker, Mildred A.B. 15 7 1506.92 a Stewart, Josephine B.S. 13 7 a 1533.00 W-Junior-H Harris, Fanita B.S. 16 5 1391.87 ( i Lane, Lillian A.B . 0 a 900.00 a Jefferson, Mary P. 4 V*; 8 a 945.00 u Hammett, Flora 2-C 27 0 1429.72 a Lee, Catherine A.B . 6 2 a 1060.00 a Wharry, Rhoda B.S.E. 0 2 a 900.00 N-Negro W -W hite H-High School 66 TABLE 5. A COMPARATIVE TABLE OF MATHEMATICS TEACHERS IN HIGH SCHOOLS WITH M .A . DEGREES. Train- Experience Assign- School T eacher ing L . R . Other ment Salary N-Senior-H Massie, S. P. M .A . 19 5 $1142.55 ft Scott, James D. M .A . 3 4 ^ 753.25 W -Senior-H Armitage, Flora M .A . 36 1 2115.00 Berry, Euleen M .A . 14 5 K 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 . 22J4 4 (Sub) 1658.53 N-Negro W -W h ite H-High School T A B L E 6. A COM PARATIVE TABLE OF M A T H E M A T IC S TEACHERS IN H IG H SCHOOLS W IT H A .B . DEGREES OR LESS. Experience School Teacher T raining L . R . Other Salary N. Senior-H Cox, Annie A .B . 7 5 $ 766.75 tt tt Gipson, J. H. A .B . 17 4 979.02 ft tt Gipson, Thelma B.S. 0 630.00 (Sub) tt tt Hunter, Andrew B.S. 5 0 665.50 tt tc Parr, Pinkie A .B . 0 630.00 (Sub) W . “ tt Bigbee, J. R. B.S. 28 10 2293.17 (i tc Ivy, William B.M .E . 17 4 1854.46 tt tt Moser, M . C. A .B . 13 7 1536.98 Junior H Cobb, Clare 2 y c 38 0 1754.41 * tt tt Davis, W ade L. A .B . 0 12 1125.00 tt tt Elliott, Clayton B.S. 6 0 1234.25 tt tt Gardner, F. M . B.S. 4 3 1260.00 tt tt Tull, N . F. 54 -1 /3 17 4 1603.55 tt ft Irby, Mrs. Guy A.B . 0 900.00 tt tt Riegler, Mary 2C 30 0 1608.27 tt ft Calloway, Estelle 2C 46 0 1741.22 67 TABLE 7. A COMPARATIVE TABLE OF SCIENCE TEACHERS IN HIGH SCHOOLS WITH M .A . DEGREES. Experience School Teacher Training L . R . Other Salary N. Senior H . Wilson, J. L. M .A . 9 9 $1039.50 it tt Elston, India M .S. 0 630.00 W . Senior H . Tillman, Marcia M .A . 15 8 1732.34 it tc Berry, Homer M .A . 14 3 1939.81 Junior iC Warner, Nita Bob M .S. 3 0 1020.75 (t tt Clauson, Donald M .A . T A B L E 8. 14 3 1702.77 A COM PARATIVE TABLE OF SC IE N C E TEACH ERS IN H IG H SCHOOLS W IT H A .B . DEGREES OR LESS. Experience School Teacher T raining L . R . Other Salary N. Senior H ( l ) Brumfield, Eunice A .B . 0 0 $ 630.00 tt “ (2 ) Douglass, Edna B.S. 15 0 737.96 a “ (3 ) Johnson, Byron A .B . 3 1 631.75 tt “ (4 ) Russell, John B.S. 1 7 642.00 tt “ (5) Tyler, Daniel P. A .B . 0 630.00 ti “ (6 ) Walker, Rose Mary A.B. 4 0 652.00 W . Senior “ (a) Barnes, Everett A .B . 14 2 1732.70 1-5 Junior H Avery, Julia Mae B.S. 0 1 900.00 (2) “ tc Lescher, Vera A .B . 13 0 1148.00 1-5 “ tt Cooke, Mrs. Eleanor A.B . 0 0 900.00 W-Junior it Bowen, E. A . 33 /4C (no degree) 22 4 1808.49 T A B L E 9. A COM PARATIVE TABLE OF H lS T O R Y TEACHERS IN H IG H SCHOOLS W IT H 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 COMPARATIVE TABLE OF HOME ECONOMICS TEACHERS IN HIGH SCHOOLS WITH A.B. DEGREES. School Teacher Training Experience L. R. Other Salary N. Senior H . Bass, Bernice B.S. 5 1 $ 638.50 W . Senior H. Chisholm, Allie B.S. 4 0 980.25 ft it Speer, Dixie D. B.Sc. 0 0 900.00 ft it Dupree, Grace B.S. 2 9 939.75 if tt Britt, Bernice A.B . 0 10 945.00 T A B L E 11. A COM PARATIVE TABLE OF M U S IC A N D B A N D TEACHERS IN H IG H SCHOOLS W IT H A . B . DEGREES OR LESS. Experience School Teacher T raining L . R . Other Salary N. Senior H . Bowie, Lester B.S. 5 4 $ 850.00 tt it King, Ruth B.M .E. 4 5 730.00 W . Senior H. Meyer, Willard 4 0 1 900.00 * ft it Duncan, Mary Alice 3 ^ C . 0 0 900.00 ft tt Parker, Robert B.M . 1 0 945.00 69 TABLE 12. Experience A COMPARATIVE TABLE OF ELEMENTARY TEACHERS WITH A.B. OR COMPARABLE DEGREES AND 1-5 YEARS EXPERIENCE IN LlTTLE ROCK. Negro Teacher Training L . R , Others Salary ti Pope, Francis B.S.E. 1 3 $ 615 tt Lewis, John A.B . 1 0 615 a Johnson, Pauline B.S. 0 0 615 a Wilkerson, Capitola B.S. 1 26 630 White it Fair, Mary Nance B.S.E. 0 2 810 it Threat, Kathryn A .B . 0 810 it Terral, Mrs. Floyd A .B . 1 2 810 it Gardner, Mrs. Lewis B.S. 0 810 tt Obersham, Bettie B.S. 0 1 810 a Carrigan, Mary D. A .B . 0 3 855 a Street, Juanita A .B . 1 810 a Thomas, Martha B.S.E. 0 810 ft McCuiston, Elizabeth 0 0 810 a Smooth, Raymond A.B . 0 810 a Belford, Susan B.S. 0 0 810 tt Crutchfield, Ann A.B . 1 0 810 tt Isgrig, Nancy Jane A.B . 0 0 810 a Soard, Dorris A.B . 0 0 810 A COM PARATIVE TABLE OF T A B L E 13. ELEM E N TA RY TEACHERS W IT H A.B. OR COM PARABLE DEGREES A N D 5-10 YEARS EXPERIEN CE IN L lT T L E R O C K . Experience Negro Teacher T raining L . R . Others Salary ft Hamilton, Elizabeth B.S. 6 10 $ 706.00it Jackson, Nancy A.B . 5 0 665.50tt Lee, Danice A .B . 6 1 665.50ti White Rice, Sarah * A.B . 7 0 645.25 it Finn, Verna A.B . 5 3 933.ii Jones, Ruth L.I. 5 5 846.it Clapp, Thelma A.B . 6 4 987.tt Holman, Lucille B.S. 8 0 1014.18tt Harper, Verna B.S.E. 5 10 1041.tt Hardage, Edith A.B . 7 1 960.a Sittlington, Blanche B.M . •5 0 960.a Wage, Georgia A .B . 7 5 1041.ft Dupree, Jeanne B.S. 6 3 960. 70 TABLE 14. A COMPARATIVE TABLE OF ELEMENTARY TEACHERS WITH A.B. OR COMPARABLE DEGREES AND 10-20 YEARS EXPERIENCE IN LlTTLE R oCK. Negro Teacher * Training Experience L. R. Others Salary ft Patterson, Alva A.B . 12 5 $ 733.00 ft Touchstone, Bertha B.S. 1 1 # 5 736.38 it Waters, Elnora A.B . 11 0 735.29 White ft Mason, Byrnice B.S. 14 2 1436.15 it Perimen, Bess A .B . 13 0 1045.28 tt Reynold, Averell A .B . 12 0 1043. a Kinlay, Francis A.B . U '/2 0 1047.46 it Willard, Beryl A.B . 11 0 1041.61 «( Shelton, Mary H . B.S.E. 13 0 982.28 “ Reeves, Jessie A.B . 12 0 1084. Apple, Lorraine B.S.E. u y 2 0 1108.58 A COM PARATIVE TABLE T A B L E 15. OF ELEM E N TA RY 'TEACHERS W IT H A.B. OR COM PARABLE DEGREE A N D MORE T H A N 20 YEARS EXPERIENCE IN L it t l e R o c k . Negro Teacher T raining Experience L. R. Others ' Salary a Davis, Corselia A .B . 26 6 $ 884.71 it Pattillo, Emma B.S. 27 0 1012.77 ft Sampson, Gertuse A .B . 22 0 764.81 it Roundtree, Thesa B.S. 23 0 764.81 it Gilliam, Cora A .B . 21 10 825.58 White tt Chandler, Blanche B.S. 29 0 1603.90 n Jordan, Pauline A .B . 26 0 1429.72 n Walker, Marqurite A .B . 35 1 1634.91 it Junkin, Blanche B.S.E. 21 0 1276.35 it Autry, Ester A .B . 24 2 1391.98 it Schriver, Mary A .B . 21 3 1354.08 it Pearson, Alice L.I. 28 8 1536.96 if Hasder, Grace B.S. 26 4 1418.84 ft Renfrew, Mina B.S. 29 1 1634.91 71 Experience TABLE 16. A COMPARATIVE TABLE OF ELEMENTARY TEACHERS WITHOUT DEGREES AND LESS THAN 10 YEARS EXPERIENCE IN LlTTLE ROCK. Negro Teacher Training L. R. Others Salary SS Burns, Cleo 2 6 0 $ 625.00 SS Bush, Marjorie 2 1 0 615.00 SS Burton, Hazel 2 1/* 7 0 665.65 SS Green, Thelma 93-hr. 7 0 630.00 SS Dander, Alice 3 9 0 645.25 SS Wilson, Rosa W a 6 0 625.00 SS White Lee, Elnora 3 / 2 0 615.00 SS Pace, Josephine 2 6 6 879.00 SS Arance, Leah 3 7 4 879.50 SS James, Mildred 2 9 0 906.00 s s Jacobs, Louise 3 3 4 825.00 s s Frost, Nell 1 7 y2 3 825.00 s s Smith, Willie 5 9 879.00 s s Bond, Alice 2C 1 1 810.00 ss Grogan, Stella 3 0 12 810.00 ss Whitley, Winnie 66-hr. 4 13 879.00 72 TABLE 17. A COMPARATIVE TABLE OF ELEMENTARY TEACHERS WITHOUT DEGREES AND FROM 10-20 YEARS EXPERIENCE IN LlTTLE R o CK. Negro Teacher Training Experience L. R. Others Salary it Lee, Bertha 3 / 13 17 $ 729.02a Rutherford, Alice 2 IS 0 678.10(( Abner, Irene C. 3 17 3 739.41t( Nichols, J. C. 3 15 0 678.10u Collier, Bennie 3 14 14 667.79a Conway, Essie 3 15 0 719.50(( Jordan, Sallie 2 15 0 678.10it White, Almeta 2 18 0 739.41a Cobb, Marion 2 / 14 0 977.65tt Farmer, Margaret 2 18 0 1198.41a Grayson, Mary Lee 2 16 0 1081.84a Owen, Jewell 1 15 10 1120.28it Brookfield, Cora 3 17 8 1276.35a Bullington, Inez 3 19 6 1391.95a Frankel, Caroline 1 / 20 10 1354.08a Goodwin, Ernestine 2 / 17 0 1198.41a Park, Mildred 1 17 4 1238.22a Toland, Brooks 2 13 0 977.40u Lemon, Mrs. C. N . 2 11 4 1006.34a Witsell, Cherry 3 12 0 949.85a Murphy, Elizabeth 2 17 3 1288.34a Woodard, Marie 54-hrs. 18 0 1120.26a Pittman, Marjorie 2 14 0 1198.27 a Tunnah, Helen 1 18 0 1120.26 73 TABLE 18. A COMPARATIVE TABLE OF ELEMENTARY TEACHERS WITHOUT DEGREES AND MORE THAN 20 YEARS EXPERIENCE IN LlTTLE ROCK. Negro T eacher Training Experience L. R. Others Salary ff Dickey, Ella 2 33 0 $1012.77 ff Bruce, Cornelia 0 32 7 1195.49 ff Murphy, Vera 2 32 0 1012.77 ff Ingram, Emma 2 34 0 1012.77 ff Littlejohn, G. B. 2 37 21 1189.64 ff Anthony, B. E. D. 3 26 0 833.52 ff Curry, Norena 2 23 0 782.04 ft Routen, Estelle 21 1 772.37 ff Lewis, Blanche 2 21 0 739.41 ff Cline, Fannie 2 33 1 1455.41 ft Power, Maggie 2 40 0 1536.99 ft Dill, Gertrude 1 24 2 1316.09 if Hairston, Maude 3 22 15 1380.15 ft Jones, Nell 2 23 2 1402.89 ff Oliver, Effie 2 21 8 1276.35 tf Bruner, Nell 2 22 0 1276.35 ff Davis, Katie M . 2 23 0 1286.32 ft Earl, Annie 3 22y2 9 1433.78 ff McDaniel, Emma Katie 2s y 1/2 1371.60 if Middleton, Opal 2 22 3 1611.34 c« Dunnvant, Foe 2 23 0 1278.42 4< Lipscomb, Vanda 3 23 0 1377.04 ff Brown, Amelia 3 22 0 1288.34 ft McKinney, Grace m 22 0 1276.35 ft Martin, Claytie 2 24 1 1316.10 74 APPENDIX C. Opinion from the Bench. I N T H E UNITED STATES DISTRICT COURT, F oe the E astern D istrict of V irginia. Civil Action No. 6 D orothy E. R ohes, et al. v s . School B oard of the City of Newport News, et al. 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 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. '• . ■ q̂ ^.212 [3957]____________ L awyers P ress, I nc., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300 IN THE United States Circuit Court of Appeals EIGHTH CIRCUIT S usie M orris, for herself and for others similarly situated, F rances B. H ibbler, Intervener -------- ----------------------------------------- Appellants V. No. 12,887—Civil R obert M. W illiams, Chairman; M urray 0 . R eed, Secretary; M rs. W. P. M cD er mott; M rs. W. F. R awlings; D r. R. M. B lakely and E. F. Jennings, Consti tuting the Board of Directors of the Little Rock Special School District, and R ussell T. S cobee, Superintendent of Schools__ __________________________________ Appellees BRIEF FOR APPELLEES B aucum F ulkerson W illiam N ash A. F. H ouse Attorneys for Appellees PARAGON PRINTING CO., U T T U ROCK I N D E X Statement __________________________________________!_______ 1 Points and Authorities______________________________________ 18 Argument ________________ ___________________________________ 23 I. Courts will not interfere with the administration of a school district’s affairs unless a clear and unmistak able showing of discrimination is made ____________ 24 II. The finding of the District Court that no discrimina tory salary schedule existed is correct ______________ 31 III. The finding of the District Court that no discrimina tory policy was followed by the Board is correct ___ 43 IV. The rating sheets were admissible in evidence ______ 62 V. No inference of discrimination may be drawn from the tables contained in appellants’ b r ie f________________ 70 VI. Matters have occurred since the trial which though outside the record should be called to this Court’s attention __________________________________________ 76 VII. Aside from the fact issue decided against appellants, the case should be affirmed because (a) the relief appellants asked would be ineffectual, and (b) the issues are now moot ____________________ __________ 79 Appendix ____________________________________ 83 Page CASES CITED Aetna Casualty & Surety Co. v. Quarles, 92 F. (2d) 231----------- 80 Alston v. School Board, 112 F. (2d) 992 ______________________ 31 American Auto. Ins. Co. v. Freundt, 103 F. (2d) 613 __________ 80 Brillhart v. Excess Ins. Co., 316 U. S. 491 ____________________ 80 Commonwealth v. Slaviski, 245 Mass. 405, 140 N. E. 465 _____ 66 Cummings v. Board of Education, 175 U. S. 528, 545 __________ 29 Delno v. Market St. Ry., 124 F. (2d) 965 -------------------------------- 80 DiGiovanni v. Camden Ins. Assn., 296 U. S. 64, 73 ____________ 80 Hale v. Kentucky, 303 U. S. 616 ____________________________ 24 Hill v. Texas, 316 U. S. 401 __________________________________ 24 Imperial Irrigation Dist. v. Nevada-California Elect. Corp., I l l F. (2d) 319 _________________________________________ 82 Knapp v. U. S., 110 F. (2d) 420, 422 __________________________ 23 Maryland Cas. Co. v. Consumers Finance Serv., 101 F. (2d) 514 80 McDaniel v. Board of Education, 39 F. Supp. 638 ______________ 31 Miller v. Miller, 149 Tenn. 463, 261 S. W. 965 _________________ 80 Mills v. Board of Education, 30 F. Supp. 245 __________________ 31, 54 Mills v. Lowndes, 24 F. Supp. 792, 803 ______________________ 31, 80 Mutual Life Ins. Co. of N. Y. v. Tormahlen, 118 F. (2d) 163, 166 24 Neal v. Delaware, 103 U. S. 320 ______________________________ 24 New Discoveries v. Wisconsin Alumni Research Foundation, 13 F. Supp. 596 _________________________________________ 82 Norris v. Alabama, 294 U. S. 591 ____________________________ 24 Pierre v. Louisiana, 306 U. S. 354 ____________________________ 24 Pollack v. Metropolitan Life Ins. Co., 138 F. (2d), 123 ________ 67 Redlands Foothill Groves v. Jacobs, 30 F. (2d) 995 ____________ 80 Ridge v. Manker, 132 F. 599 _________________________________ 78 I N D E X — Cont. Page I N D E X — Cont. Roles v. School Board, unreported___________________________ 56 Smith v. Texas, 311 U. S. 128______________________________ 24 Snowden v. Hughes, 321 U. S. 1 _______ ._____________________ 59 Standard Varnish Co. v. Jay, 149 111. App. 25 _____ ._________ 69 Steel v. Johnson, 9 Wash. (2d) 347, 115 P. (2d) 145 ____________ 66 Stennick v. Jones, 282 Fed. 161, 164__________________________ 34 Tenn. Coal, Iron & Ry. Co. v. Muscoda Local, 137 F. (2d) 176, 184 ________________________________________________ 79 Texas & Pac. Ry. v. Interstate Trans. Co., 155 U. S. 585 ______ 81 Thomas v. Hibbitts, 46 F. Supp. 368 _________________________ 31 Tigner v. Texas, 310 U. S. 141 _______________________________ 30 Turner v. Keefe, 50 F. Supp. 647 ____________________________ 30, 31 Vidal v. So. American Securities Co. (C.C.A.2) 276 Fed. 855 __ 77 Virginian Ry. Co. v. Federation, 300 U. S. 515, 551 ____________ 80 Whitney v. State Tax Commission, 309 U. S. 530 ______________ 30 TEXTBOOKS CITED Borchard on Declaratory Judgments, 107 ____________________ 80 22 Corpus Juris, p. 802 _____________________________________ 65 2 Wigmore on Evidence, 17, 35-36 ____________________________ 68 3 Wigmore on Evidence (2d Ed.) 389 ________________________ 64 STATUTES CITED Constitution of Arkansas, Art. XIV, §§ 1 and 4 --------------------- 2 Constitution of the United States, Amendment 14 __ __________ 3 Pope’s Digest of Statutes of Arkansas, §§ 11521-11545 _____1— 2 8 U. S. C. A. §§ 41 and 43 __________________________________ 4 28 U. S. C. A. § 695 ________________________________________ 67 Senate Report No. 1005, 73rd Cong. 2d Session------------------------ 80 Page IN THE United States Circuit Court of Appeals EIGHTH CIRCUIT S usie M orris, for herself and for others similarly situated, F rances B. H ibbler, Intervener_____________ ___________________ Appellants v. No. 12,887— Civil R obert M. W illiams, Chairman; M urray 0 . R eed, Secretary; M rs. W . P. M cD er mott; M rs. W . F. R awlings; D r. R. M. B lakely and E. F. Jennings, Consti tuting the Board of Directors of the Little Rock Special School District, and R ussell T. S cobee, Superintendent of Schools---------------------------------------------------------Appellees BRIEF FOR APPELLEES STATEMENT This is a class suit, brought by a negress employed as a teacher in the Dunbar High School at Little Rock, Arkansas, on behalf of herself and of certain other negro teachers in the Little Rock Public Schools. Originally, the City Teachers’ Association, an unincorporated group 2 of negro teachers in Little Rock, was also named as a plaintiff; but a motion to dismiss the complaint as to it was sustained (R.13) and the propriety of this dismissal is not questioned on appeal. The defendants are the six members of the Board of Directors of the Little Rock Special School District and the Superintendent by virtue of various statutes creating a public school system (Pope’s Digest, §§. 11521-11545, as amended by Act 319 of 1941) which were passed pursuant to a mandate of the State Constitution (Art. XIY, §§. 1 and 4). The Board’s function is to exercise a general supervision over the entire city school system, to employ teachers and other employees and to issue warrants against the County Treasury for their salaries. The members of the Board are elected by the voters of the District and receive no pay (R.79). The complaint was filed February 28, 1942. The allegations upon which this suit rests follow: “ Defendants over a long period of years have consistently pursued and maintained and are now pursuing and maintaining the policy, custom and usage of paying Negro teachers and principals in the public schools of Little Rock less salary than white teachers and principals in said public school system possessing the same professional qualifi cations, licenses and experience, exercising the same duties and performing the same services as Negro teachers and principals. Such discrimination is be ing practiced against the Plaintiffs and all other Negro teachers and principals in Little Rock, and is based solely upon their Race or color. “ The Plaintiff, Susie Morris, and all of the members of the Plaintiff Association, and all other Negro teachers and principals in public schools in 3 the City of Little Eock, are teachers by profession and are specially trained for their calling. By rules, regulations, practice, usage and custom of the State acting by and through the Defendants as its agents and agencies, the Plaintiff, Susie Morris, and all of the members of the Plaintiff Association and all other Negro teachers and principals in the City of Little Eock, are being denied the equal protection of the laws, in that solely by reason of their Eace and color they are being denied compensation from public funds for their services as teachers equal to the compensation provided from public funds for and being paid to white teachers with equal qualifications and experience for equivalent services pursuant to rules, regulations, custom and practice of the State acting by and through its agents and agencies” (E.4-5). # * # “ Pursuant to the policy, custom and usage set out above the Defendants acting as agents and agencies of the State of Arkansas, have established and maintained a salary schedule used by them to fix the amount of compensation for teachers and principals in the public schools of Little Eock, which provides a lower scale of salaries for Negro teach ers and principals than for white teachers and prin cipals with equal qualifications and experience and performing essentially the same duties. The prac tical application of this salary schedule has been, is, and will be to pay Negro teachers and principals of equal qualifications, licenses and experience with white teachers and principals less compensation from public funds solely on account of Eace or color” (E. 5). The complaint further asserted that the actions just described constituted violations of the equal protection and due process clauses of the Fourteenth Amendment to the 4 Constitution of the United States and of 8 U. S. C. A., §§. 41 and 43. The relief asked was that a declaratory judgment he entered determining the adoption and enforcement by the defendants of the alleged salary schedule to be a violation of the equal protection clause and the alleged discrimina tory distribution of the public school fund for teachers’ salaries to be violative of the equal protection and due process clauses; and that a permanent injunction be issued forbidding the defendants from making any distinction on the ground of race and color in the fixing of teachers’ and principals’ salaries. The defendants in their answer denied the existence of any salary schedule or of any policy, custom or usage by which negro teachers and principals in the Little Rock Public Schools were uniformly paid less than white teach ers and principals possessing the same professional quali fications, licenses and experiences, exercising the same duties and performing the same services. They alleged that the negro teachers in the Little Rock Public Schools differed among themselves and as compared to white teachers as to the degree of their special training, ability, professional qualifications, experience, duties, services and accomplishments and that any differences in the salaries of particular individuals were based solely on differences in the training, ability, etc., of the individuals themselves; that the fact that a particular person has qualified for a teachers’ license means only that the indi vidual has satisfied the minimum requirements for teach ing in the public schools. Defendants further denied that they had ever established or maintained a salary schedule used to fix the amount of teachers’ salaries or that any 5 salary paid any negro principal or teacher was based in whole or in part on race or color. After the dismissal of the complaint as to the City Teachers’ Association, the case was tried on the merits before the District Judge. As will appear later, there is a sharp conflict between appellants and appellees as to the meaning and weight which should be ascribed to much of the material evidence. Indeed, it will become apparent that the principal issues involved on this appeal are issues of the material evidence. With the facts so much in dis pute and with such a voluminous record it is difficult to give an impartial recapitulation of all of the evidence without turning what is intended as a statement of the case into an abstract of the record. We shall there fore include in this statement only such facts as are not in dispute, reserving discussion of the rest for our argu ment. Pupils in the Little Rock Public Schools are required by law to be segregated as to race. Pope’s Digest, §. 11535 (c). White teachers alone teach in white schools and negro teachers alone teach in negro schools (R.20). The courses of instruction and hours of school are similar (R. 182, 191). At the time of trial there were 320 white teach ers and 86 colored teachers employed by the Little Rock Special School District (R.818). This is a brief outline of the administrative organiza tion of the Little Rock Schools: Each school has a prin cipal whose duty it is to supervise and administer the activities of the teachers there. John II. Lewis, a negro, is principal of Dunbar, the negro high and junior high school (R.161); Charles R. Hamilton is principal of Gar land, a white grammar school, and in addition is a special 6 supervisor of Dunbar, spending from two hours to half a day in the latter school (R.310, 363). In addition to these, there are five supervisors and sponsors, each of whom exercises a general supervision over special sub jects or activities. Their supervision extends to all the schools, negro and white alike, in which these special sub jects are taught. For example, Miss Annie Griffey was supervisor of auditorium and primary grades (R.422) ; Mrs. L. J. Allison was supervisor of free reading (R.-133), and Y. L. Webb was supervisor of social studies (R.452). These supervisors hold meetings of the teachers of their particular subjects, visit the teachers in their classrooms, assist in preparing the curricula and make such sugges tions to the teachers or to the superintendent as they think necessary (R.422, 434, 443, 452, 464). Over all the prin cipals and supervisors is R. T. Scobee, one of the defend ants herein, who is employed by the Board as Superin tendent of the entire school system. All six members of the Board of Directors testified. The member who had been on the Board longest was Mrs. W. P. McDermott, who had served since 1922 (R.32). Mrs. W. S. Rawlings was next in length of service, having been a member since 1934 (R.83). The other four members were relatively new, Messrs. Robert M. Williams and Murray 0. Reed having taken office in 1939, and Dr. R. M. Blakely and E. F. Jennings in 1941 (R.354, 109, 74, 20). Of these six Directors, only one had ever had any experi ence as a teacher (R.354). In the nature of things with a school system of such size it was impossible for the members of the Board to attempt to investigate all new applicants or to attempt to rectify all inequities in the matter of salaries paid teachers who were already with the system (R.113, 356). The following procedure was 7 therefore devised for the selection of new teachers to fill vacancies in the system: The Board of Directors was divided into two trium virates, the Personnel Committee and the Finance Com mittee (R.93, 110). The function of the Finance Com mittee was to make up the budget for the District, allot ting the District’s revenue among the various items of expense such as capital outlay, teachers’ salaries, main tenance, etc. The budget was then presented to the Board for approval (R.112). It was the function of the Personnel Committee, acting in conjunction with the Superintendent, to divide the amount thus allotted for teachers’ salaries among the hundreds of teachers in the System (R.185). When a person wished to obtain a position as teacher with the Little Rock School System, an application blank was furnished. Several such blanks are included in the record as exhibits (R.664 ff). After the applicant had filled in the blank with the requested information, it was filed at the School Board Office. When a vacancy oc curred in the system, the Superintendent went through these application blanks and selected several of the most promising. He then investigated these applicants, finally narrowing his choice to one (R.184, 202). The investi gation usually consisted of obtaining a report from the placement bureau of the applicant’s school, the applicant’s college transcript, letters of recommendation solicited from the references given in the application, making telephone calls to anyone who could furnish information about the applicant, and finally a personal interview with the ap plicant by the Superintendent. On one occasion Scobee testified that he made a trip to Pittsburgh, Kansas, to interview a candidate (R.229). On the basis of all the 8 information about the applicant which he could obtain in this way, the Superintendent made a report to the Per sonnel Committee (R.202). The applicant did not appear before this Committee, but its members testified that fre quently they were sought out by the applicants individu ally before the Committee met and in this way sometimes knew something about the applicant’s personality and qualifications before the Superintendent made his report (R-32, 102, 110). To a great extent the members of the Personnel Committee relied on the judgment of the Super intendent as to the qualifications of prospective teachers and also as to the salary at which they were employed (R.37, 42, 108). Sometimes, however, the Personnel Com mittee was not satisfied with the Superintendent’s report and in such cases he was asked to make a more extensive investigation and to report back to the Committee (R. 73, 94, 207). The Personnel Committee generally met once a month, usually for an hour and a half at a time (R. 72, 97, 109). After the Personnel Committee was satisfied as to an applicant’s qualifications, the Committee made a report to the entire Board which under the statute is the agency authorized to employ teachers (R.21, 28, 203). The Board usually accepted the recommendations em bodied in this report, both as to the individuals to be ap pointed and as to the salaries at which they were to be employed (R.31, 355). In fact, each of the three members of the Board who had never been on the Personnel Com mittee testified that he had never attempted to investi gate or to evaluate the ability of any applicant; that it was their policy to accept the recommendation of the Per sonnel Committee (R.31, 75, 359). Scobee was appointed Superintendent of the Little Rock Special School District in February, 1941 (R.181). lie had been Superintendent only one year when this suit 9 was filed. He testified that in considering applicants for new teaching positions each individual was considered on his 01 her merits (R.185, 268); that in recommending ap plicants he did the best he could to make the salaries cor respond with the teaching abilities of the applicants (R. 207). That he did not pretend to be infallible is shown by his frank admission that liis judgment of new teach- ei s had been proved wrong in several instances by the iact, that he had been forced to discharge persons whom he had recommended only a short time before; but he said he knew of no better method of arriving at a fair judgment of the abilities or worth to the system of candi dates than the one which has just been described (R.203). He A\as interrogated about every teacher, negro and white, who had been employed by the Little Rock School System duiing the 1941-1942 school year, and candidly owned that he had made mistakes in some of liis selections of both S negroes and whites (R.229, 251, 254, 350). It must be remembered that the vast majority of teachers who were in the Little Rock School System at the time this suit was tried had been employed before Scobee became Superintendent. The testimony showed that among these old teachers some inequities existed in the matter of salaries. These inequities, however, were not confined to members of the negro race; there were also wdiite teachers whose salaries Scobee thought were too low (R,272-276). He testified that some adjustments had been made m an effort to remove these inequities, but that m the main the salaries of old teachers had been carried on in about the same way as he found them (R. 183, 189, 191). He gave several reasons for this. One was that when he first became Superintendent he knew so little about the various teachers that he would not trust ✓ his judgment (R.183, 293, 48S). Another reason was that he was operating* on a restricted budget and was in no position to make sweeping* changes (R.189, 201). He testi fied further that from the filing to the trial of this suit he made as few changes as possible (R.287). Scobee v attempted to make no explanation of the manner in which I the salaries of these old teachers had been fixed. He simply said that he had not been connected with the Little Rock School System when these teachers were first em ployed and that he had no way of knowing* how their salaries were determined (R.192, 305). His predecessor, R. C. Hall, did not take the witness stand and the only testimony as to the method used in fixing the salaries of these old teachers is that of one member of the Personnel Committee who testified that Hall had also attempted to fix each teacher’s salary on a basis of his or her individual qualifications (R.45). The theory of the appellants’ case is that the Board through its agents, the Personnel Committee and the Superintendent, should have confined itself in the fixing of teachers’ salaries to the degrees and years of experi ence which the various candidates had to offer. Scobee repeatedly rejected this test. He said that degrees and years of experience were perhaps the starting point for attempting* to arrive at a judgment; but some of his com ments on the efficacy and wisdom of using these two fac tors alone in order to arrive at a judgment of the quali fications and worth of an applicant for a teaching posi tion follow: “ There are many people with degrees that can’t teach school” (R.204). 11 “ I would say that those are two factors, are very limited in getting the full picture of the can didate’s work” (R.206). “ You can’t take teachers o ff an assembly line like a machine” (R.245). “ Degrees do not determine what teachers are” (R.266). “ To employ applicants, knowing nothing ex cept their degree, the college from which they ob tained them and the number of years of experience would be a highly risky business” (499). ‘ ‘ I would be opposed to the fixing of salaries on these two items alone” (R.501). Scobee thought a more valuable estimate of an appli cant’s worth would be obtained by a process which re quired a more vigorous exercise of the critical faculties. Instead of stopping at the degrees and years of experience of the candidate he was considering, the record will show that he thought he had the right also to ask these further questions: By what college was the degree awarded? Was it accredited or non-accredited? The undisputed evidence shows that a degree from an accredited college is much more valuable than one from a non-accredited institution for purposes of a teacher’s qualifications (R.170, 257, 258, 337). In this connection, it should be noted that there are no accredited negro colleges in Arkansas (R.175, 210), and more than half of the negro teachers employed by the Little Rock Special School District received their train ing in non-accredited schools. Even if it was from an accredited college, the testimony shows that degrees from all accredited colleges are not of the same value, at least for the purpose of determining a candidate’s teachin ability (R.170-171). oA-* 12 Assuming that the applicant did possess a degree from an accredited college with a recognized reputation for turning out good teachers, what kind of a student had the applicant been in that college: had he barely scraped through, or did he graduate cum laudef (R.245, 351). Having found the answers to these questions, however, Scobee said that he had only begun because, although there was some relation between scholarship and teaching, it was not the invariable rule that the best student made the best teacher (R.351). Turning to the factor of experience which is the other mechanical test appellants would impose, Scobee said that not only the number of years of experience but the kind of experience had to be considered in order properly to evaluate this particular element (R.336). For example, the fact that a person had five years’ experience teaching in a grammar school would not be entitled to as much weight as the fact that another applicant had had an equal number of years’ experience in a machine shop if both were applying to teach mechanical arts. In one case Scobee pointed out that one reason he had paid a teacher of commercial subjects a certain salary was that she had had some experience in a business office (R.209). The testimony shows that the subject which the appli cant proposes to teach must be considered in the matter of fixing salaries. For example, the record shows that at the time the plaintiff was employed as an English teacher at Dunbar, there were many other applications for the same position (R.151); whereas, in order to obtain a competent band director, Scobee had to call an old teacher who was residing in Mexico out of retirement (R.241). 13 Another factor which entered into the fixing of sal aries was the amount of work done by the particular teacher. For example, Scobee testified that one reason a certain teacher got less than another was that she spent part of her time teaching in the Junior College and there fore spent less time in the high school (E.233). In several other cases he said that one factor which he had taken into consideration in fixing the salaries of individual teachers was that those teachers engaged in extra curricular activi ties such as coaching, directing visual education, etc. (R. 262, 263, 265, 294, 336). In setting out the factors which he considered entitled to be given importance in the formation of an estimate of a teacher’s worth, Scobee made this observation: “ A lot of intangibles enter into it, honesty, sympathy, per sonality, ability to get along with people, ability to give directions, conversational method, any number of things enter into the net worth and whole picture of a teaching candidate” (R.204). In the spring of 1941, Scobee conceived the idea of de veloping rating sheets for the teachers in the Little Rock School System. The main purpose of developing these rating sheets was to provide a criterion for the teachers for their own self-improvement (R.211). They were not prepared for the purpose of fixing salaries. The form of these sheets is shown by defendant’s Exhibit No. 5 (II.779-792). Sixteen separate tests were included in these sheets. Columns were provided so as to allow three rat ings for each test. The sheets were delivered to the super visors and principals in the fall of 1941 because they were to be filled out on an annual basis— that is, filled out on a basis of what the supervisors and principals 14 observed during the 1941-1942 school year (R.212, 280). The sheets for the Dunbar teachers were filled out at a meeting between Messrs. Lewis, Hamilton and Scobee (R. 215, 366, 472). Some of the sheets were filled out by Hamilton and some by Scobee (R.269). Both testified that Lewis did not dissent from the ratings written on the sheets at that meeting, which took place the last of March, 1942 (R.216, 368, 405, 410, 490, 494). Later in the year the form of the rating sheet was changed, five ratings being provided for each test instead of three, for the pur pose of having more refinement in the ratings (R.491). Hamilton was then asked by Scobee to rate the Dunbar teachers on the five-column sheets (R.492). Scobee testi fied that he assumed Hamilton had consulted Lewis in preparing these sheets (R.492), but apparently this was not done (R.411). Hamilton came to Scobee after the latter had instructed him to make up the five-column sheets and said that his information was incomplete, so Scobee told him to compare the Dunbar teachers with the Gar land teachers since Hamilton was better acquainted with the teachers at the latter school (R.494). In the mean time, Scobee had asked Lewis to give him a grouping of the Dunbar teachers (R.283). Scobee testified that the purpose of this request was to obtain the ranking within the individual school and had nothing to do with the gen eral situation (R.474). Lewis complied with that request on May 14, 1942, by writing a letter to Hamilton (R.410). This letter simply places the Dunbar teachers into three general groups on the basis of five tests (see letter, /6o). Since Hamilton had not requested the groupings he had not know what it was at first (R.373), and he did not use the groupings given in Lewis ’ letter in preparing the five- column sheets. Some of the ratings contained in Lewis’ letter agreed with the ratings on the three-column sheets. 15 In several instances the ratings given various teachers did not correspond (R.414). From the data contained in the rating sheets received from all the supervisors and principals, Scobee in the sum mer of 1942 devised a composite rating sheet of all the teachers in Little Rock (R.214, 222). This appears in evi dence as defendant’s Exhibit 3 (R.768). Under State law, contracts for employment of teach ers must be made by June 1st of each year or the contracts are automatically renewed (R.211). The teachers’ con tracts for the academic year 1941-1942 were made by the Little Rock School Board in May, 1941. It is obvious that the individual rating sheets were not used to fix the sal aries of any teachers employed at that time since the sheets were not returned to Scobee by the principals and supervisors until May, 1942. Scobee testified several times that the rating sheets were not compiled for the purpose of fixing salaries but he said that since most of the indi vidual rating sheets were in his hands before the contracts for the 1942-1943 school year were made by the Board in May of 1942, he was influenced in several instances by the information contained in them (R.226, 282, 489). As the record shows, appellants objected strenuously to the admission of any of these rating sheets and their inad missibility is one of the main points urged on this appeal. The principal reason appellants have attempted to ex clude the rating sheets seems to be that the salaries of most of the teachers in the Little Rock School System correspond roughly with their respective cumulative ratings. The complaint also alleged the existence of a dis criminatory schedule of teachers’ salaries. To sustain this 16 issue the plaintiff produced a document which was intro duced in evidence as plaintiff’s Exhibit 4, called “ Special Adjustment Plan” . The plaintiff testified that the only thing she knew about this document was that she found it in her mail box where she usually received communi cations from the School Board (R.158). Both Messrs. Scobee and Williams testified that they had never seen the document before the trial and knew nothing about it (R.279, 359). Several negro teachers aside from the plaintiff were on the witness stand and it is signifi cant that none of them testified to any knowledge of the document. In addition to this document, appellants introduced in evidence various minutes of meetings of the School Board as far back as 1926. A detailed discussion of this evidence is contained in Part II of appellees’ argument. The factors which appellants say point to the alleged discriminatory policy are discussed in our argument. At the conclusion of the testimony the District Judge made the following finding of fact on this issue: “ At the time of and since the institution of this suit the defendants, as School Directors, and the Superintendents of Schools, respectively, had the custom, policy and usage of fixing the salaries of the individual teachers according to what they honestly believed were their individual qualifica tions, based upon their education, experience, and the many elements of personal characteristics that go to make up their characters and dispositions, and their consequent value as teachers. “ The salaries of the several teachers in the Little Rock Sjjecial School District were fixed by the school authorities according to what they con sidered to be the worth of the several teachers, in- 17 dividually, and that in the fixing of any salaries there was no discrimination against colored or Ne gro teachers, or in favor of white teachers, on ac count of race or color. “ No policy, usage or custom existed over a long period of time, at the time of the institution of the suit, or thereafter whereby plaintiff or any member of her class, as colored teachers of the Ne gro race, is discriminated against in salaries solely on account of race or color” (R.820). As to the salary schedule alleged in the complaint, the following finding was made by the District Judge: “ There is and was no schedule of salaries pre pared, adopted or used by the Board of Directors or other authority of the District, fixing the salaries of teachers according to the positions they fill as teach ers, or otherwise, and no such schedule of salaries was in effect at any time pertinent herein” (R.821). In view of these findings, the lower court dismissed the complaint. At the time of her appeal, Susie Morris, the original plaintiff, was no longer a teacher in the Little Rock Special School District, and by consent of the parties Frances B. Hibbler was substituted to prosecute this ap peal (R,826-828). 18 POINTS AND AUTHORITIES i The burden is on appellants to show that the Board in fixing salaries discriminated against negro teachers by clear and unmistakable proof and the “ prima facie doc trine” of the so-called negro juror cases is not applicable. Norris v. Alabama, 294 U. S. 591; Hale v. Kentucky, 303 U. S. 616; Pierre v. Louisiana, 306 U. S. 354; Smith v. Texas, 311 U. S. 128; Hill v. Texas, 316 U. S. 401; Cummings v. Board of Education, 175 U. S. 528, 545; Whitney v. State Tax Commission, 309 U. S. 530; Tigner v. Texas, 310 U. S. 141; Turner v. Keefe, 50 F. Supp. 647. ii The finding of the District Court that no discrimina tory salary schedule existed is correct. Mills v. Lowndes, 24 F. Supp. 792, 803; Mills v. Board of Education, 30 F. Supp. 245; Alston v. School Board, 112 F. (2d) 992; McDaniel v. Board of Education, 39 F. Supp. 638; 19 Thomas v. Hibbitts, 46 F. Supp. 368; Turner v. Keefe, 50 F. Supp. 647; Stennick v. Jones, 282 Fed. 161, 164. h i The finding of the District Court that no discriminatory policy was followed by the Board is correct. Mills v. Board of Education, 30 F. Supp. 245; Boles v. School Board (unreported); Snoivden v. Hughes, 321 U. S. 1. IV The rating sheets were admissible in evidence. 3 Wigmore on Evidence (2d Ed.) 389, 392, 408; 22 Corpus Juris, p. 802; 20 American Jurisprudence, 866; Commonwealth v. Slaviski, 245 Mass. 405, 140 N. E. 465; Steel v. Johnson, 9 Wash. (2d) 347; 115 P. (2d) 145; Buie 43, Bnles of Civil Procedure; 28 U. S. C. A. Sec. 695; Pollack v. Metropolitan Life Ins. Co., 138 F. (2d) 123; 2 Wigmore on Evidence, 17, 35-36; Standard Varnish Co. v. Jay, 149 111. App. 25. 20 v No inference of discrimination may be drawn from tbe tables contained in appellants’ brief. VI Appellants have not only tbe right but the duty to call the Court’s attention to certain facts which have occurred since the trial of this case and which may have an impor tant bearing on the outcome of this appeal. Ridge v. Manlier, 132 F. 599; Vidal v. South American Securities Co., (C. C. A. 2) 276 Fed. 855. VII Aside from the fact issue decided against appellants, the case should be affirmed because— (a) the relief appellants asked would be ineffec tual. Tenn. Coal, Iron & Ry. Co. v. Muscoda Local, 137 F. (2d) 176, 184; Aetna Casualty & Surety Co. v. Quarles, 92 F. (2d), 231. American Auto Ins. Co. v. Freundt, 103 F. (2d) 613; Rrillhart v. Excess Ins. Co., 316 U. S. 491; Senate Report No. 1005, 73rd Cong. 2d Session; Miller v. Miller, 149 Tenn., 463, 261 S. W. 965; 21 Maryland Casualty Co. v. Consumers Finance Serv., 101 F. (2d) 514; Delno v. Market St. By., 124 F. (2d) 965; Redlands Foothill Groves v. Jacobs, 30 F. (2d) 995; Borchard on Declaratory Judgments, 117; Virginian Ry. Co. v. Federation, 300 U. S. 515, 551; DiGiovanni v. Camden Ins. Assn., 296 U. S. 64, 73; Mills v. Lowndes, 24 F. Supp. 792, 803 and (b) the issues are now moot; Texas & Pac. Ry. v. Interstate Trans. Co., 155 U. S. 585; New Discoveries v. Wisconsin Alumni Research Foun dation, 13 F. Supp. 596; Imperial Irrigation Dist. v. Nevada-California Elect. Corp., I l l F. (2d) 319. 23 BRIEF OF ARGUMENT Appellants contend on this appeal that the Board of Directors has denied them the equal protection of the laws and due process of law by (1) adopting and maintaining a discriminatory salary schedule; and (2) by following a policy of discriminating against members of the negro race in fixing teachers’ salaries. It has just been shown that the trial court made specific findings against appel lants on both of these issues. Rule 52 of the Rules of Civil Procedure reads in part: < < * * * * Findings of facts shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Courts have uniformly interpreted Rule 52 to mean that if the findings of the trial court are based upon substantial evidence they will not be set aside on appeal. Typical expressions of this construction of the rule fol low: “ The question of law we are asked to decide is whether the finding of the trial court was based up on substantial evidence. We are not the triers of fact, but merely reviewers of the action of the triers and limited in our investigation to an ascertainment of the existence of substantial evidence sufficient to support the finding, Goble v. U. S., 7 Cir., 94 F. (2nd) 275, and in the consideration of this question we must assume as established all the facts that the evidence reasonably tends to prove (citing eases) and the finding should not be set aside unless clearly erroneous, Rule 52. Knapp v. U. S., 110 F. (2nd) 420, 422. 24 “ We are not the triers of fact, but merely re viewers of the action of the trial court and limited in our investigation to an ascertainment of the ex istence of substantial evidence to support the find ings and where there is any competent evidence to sustain the trial court’s findings, it cannot be dis puted on appeal unless we can say the findings are clearly erroneous.” Mutual Life Ins. Co. of N. Y. v. Tormdhlen, 118 F. (2nd) 163, 166. It is therefore our task here to show that the findings of the trial court upon the two questions involved are sup ported by substantial evidence. i The Proof Required to Shoiv Discrimination Before the evidence is discussed, an effort should first be made to ascertain the proof required of the ap pellants to sustain their allegations. At pages 23 to 27 of their brief, they cite cases which are said to furnish a “ yardstick” by which the Court may measure the proof required to show discrimination on the part of a state officer. We do not discuss the first three cases cited be cause they involve discrimination caused, not by acts of state officers, but by statutory classifications. Here, no discriminatory statute is even alleged. The cases upon which appellants rely to furnish their “ yardstick of proof” are the so-called negro juror cases: Neal v. Pelaivare, 103 U. S. 320; Norris v. Alabama, 294 U. S. 591; Hale v. Kentucky, 303 U. S. 616; Pierre v. Lou isiana, 306 U. S. 354; Smith v. Texas, 311 IT. S. 128, and Hill v. Texas, 316 U. S. 401. In the Neal, Hale and Pierre cases, the facts were almost identical. A negro, charged 25 in a state court with a criminal offense, alleged that he was discriminated against because negroes had been ar bitrarily excluded, on account of their race, from the grand jury which indicted him or from the petit jury which con victed him. The facts averred by the defendant’s affidavit or sworn motion, were that a large proportion of the popu lation from which the jury had been selected was composed of negroes, that there were negroes who were qualified for jury service, and that no negro had ever been sum moned as a juror over a long period of time. None of these sworn statements were denied. The Court merely held that these undisputed affidavits were sufficient to make out a prima facie case that negroes were excluded because of their race and color. In Norris v. Alabama, an attempt was made by the state to show that no negro was qualified for jury service, but the Court, in discussing this testimony, said: “ * * * there was testimony, not overborne or discredited, that there were in fact negroes in the county qualified for jury service that testimony was direct and specific. After eliminating those persons as to whom there was some evidence of lack of qualifications, a considerable number of others remained.” The state also attempted to show that the names of some negroes had been on the jury roll from which the grand jury which indicted the defendant had been selected. A list was produced with the names of some negroes on it. A handwriting expert testified that these names had been added; that the list had been tampered with. This expert testimony was uncontradicted. The court of course concluded that the names of no negroes had been on the list at the time the indictment was returned. Thus again 26 it can be seen that the undisputed proof in the Norris case showed the same situation as that shown by the uncon troverted affidavits in the other cases: The proportion of negroes in the county was high, some of them were qualified for jury service and none had been called for jury duty for a generation. Precisely the same facts were shown in the Smith case with one exception: there the commissioners, instead of excluding negroes from the jury list altogether, occa sionally put the name of one on the list; but their invari able practice was to place the negro’s name on the bottom, so that be would never be called for service unless it proved impossible to obtain the necessary number of jurors from the names on the list which preceded his. The Court merely held that proof of the adoption of this ruse was not sufficient to overcome the prim,a facie case established by the other uncontradicted facts. The last case cited by appellants, Hill v. Texas, supra, adds very little. It was alleged that the jury commission ers had systematically excluded negroes from grand jury service because of their race. The only requirements for a juror prescribed by the state statute were that he be a citizen of the state and county, qualified to vote there, a freeholder within the state or a householder within the county, of sound mind and good moral character, able to read and write, and not convicted or under indictment of any felony. The undisputed proof showed that no negro had been included on the grand jury list for over 16 years; that a large proportion of the county’s population was composed of negroes, that there were negroes in the county who owned property and were qualified to vote, and that only 7.5% of the negro population there was illiterate. The court held that this proof was sufficient to constitute 27 a prima facie case of racial discrimination—in other words, that it was not reasonable to infer that all the negroes in the county otherwise qualified for jury service either had criminal records or were not of good moral character. These are the cases which appellants cite for the pur pose of showing what the measure of proof should be in the case at bar. We submit that the transition from the so-called negro juror cases to this case can only be made by virtue of a violent and prodigious mental leap. In the first place, even if these cases did furnish the “ yardstick of proof” which appellants say they do, it is elementary that the rules governing the burden of proof in criminal cases have little or no application in civil cases. But these cases furnish no such yardstick. The measure of proof required to establish a controverted issue of fact is nowhere discussed in them. They simply hold that undisputed evidence of certain facts makes a prima facie case. Once this is done, if no evidence is offered in rebuttal, the prima- facie case of course becomes conclusive. There is an even more obvious reason for saying that these cases have no application here. There is no relation between the tests used to determine the qualification of a person for jury service and the tests used to determine the qualifications of a person to teach in the public schools. In determining the former, any citizen may be singled out, the few simple statutory requirements ap plied to him and the question, whether he is qualified to serve as a juror, will be instantly answered in most cases. In selecting an individual for jury service, the question is not how well he is qualified, but whether he is qualified at all. I f he is, the inquiry is ended; the fact that he is relatively better or less qualified than someone else is 28 without significance. The dull edge of statutory require ments is brought down and a cleavage between those who are qualified for jury duty and those who are not auto matically results. In all of these cases except the Hill case, the fact that there were negroes in the county who were qualified to serve as jurors was undisputed. Even in the Hill case there was undisputed evidence that many negroes met every test except that relating to moral character and it was certainly proper for the court to say that there was no room for the inference that all of the negroes who were qualified in every other respect would be excluded on that ground. There is no analogy between these cases and the case at bar. Here, instead of one simple statutory require ment dividing persons into two broad classifications, we have many tests, some of which are dependent largely on the judgment of the individual applying them. Here, a specialized segment of the population is being divided into many salary groups. Here, the personality of the in dividuals plays a part in determining his or her classifi cation. Here, comparisons must constantly be made be tween individuals, not for the purpose simply of separat ing those who are qualified from those who are not, but for the purpose of making a far more subtle, refined and difficult distinction—which of two individuals is better qualified, which is more capable? At the very outset in this case the parties come to grips on the question of qualifications—a matter which as we have just seen was not even in dispute in the negro juror cases. Appellants are apparently under the impression that they can spring from the holdings in those cases to the conclusion that all which needs to be done in order to prove the issues in the case at bar is to show that a given negro teacher with 29 a certain college degree and a certain number of years of experience is receiving less salary than a white teacher with a similar college degree and an equal number of years of teaching experience. We are unable to follow appellants in their reasoning. If it were sound it would mean that the equal protection clause of the Constitution requires every school board in the nation to adopt an arbitrary salary schedule based upon degrees and years of experience alone. It wrould strip those in charge of administering the school district’s affairs of all discre tion in fixing salaries. We do not believe that the courts will read any such meaning into the Fourteenth Amend ment. The reluctance of the courts to interfere with the conduct of schools is shown by this language: “ We may add that while all admit the bene fits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, the education of people in schools maintained by state taxation is a matter belonging to the respective states, and any interfer ence on the part of federal authority in the man agement of such schools cannot he justified except in the case of a clear and unmistakable disregard of rights secured by the supreme laiv of the land Cummings v. Board of Education, 175 U. S., 52S, 545. (Italics supplied.) The undisputed evidence in this case shows that further factors aside from college degrees and years of teaching experience are important in considering the value of a teacher. The plaintiff, Susie Morris, admitted this, Lewis, the principal of Dunbar High School, admitted this, and Scobee repeated it many times. The evidence shows that in fixing salaries, the Board did not confine itself to these two mechanical factors. Since this is so we submit that the Fourteenth Amendment does not com 30 pel the Board to pay two teachers the same salary merely because they have the same college training and the same number of years of experience. The equal protection clause was not designed to compel uniformity in the face of difference. Whitney v. State Tax Commission, 30:) U. S. 530. The equality at which this clause aims is not a disembodied equality and the Constitution does not re quire things which are different in fact and opinion to be treated in law as though they were equal. Tigner v. Texas, 310 IT. S. 141. As was said in Turner v. Keefe, 50 F. Supp. 647, 651: “ College degrees conferred upon one and years of teaching experience do not of themselves qualify one for the profession of teaching or of supervising of teaching and do not constitute the sole criteria for admeasurement of teacher worth. In addition to said factors, the ability to impart knowledge to pupils, as well as one’s own temperament, patience, instructional skill and performance, disciplinary ability, physical health, personality and character, interest in work, dependability and scholarship, at titude, tolerance, habits and other factors may also be considered and judged.” The negro teachers employed by the School District fall into two classes so far as the evidence is concerned. In the first class are those who took the witness stand and those whose qualifications were discussed in the tes- itmony. As will presently appear, the evidence as to these shows plainly that there was no discrimination against them. In the second class are various negro teachers whose qualifications, though capable of being proved, were not mentioned by appellants during the trial. It is to show 31 discrimination against these teachers that appellants have attempted to invoke the prima facie doctrine of the negro juror cases. We submit that the task of showing a “ clear and unmistakable disregard of rights secured by the su preme law of the land” is not accomplished so easily. ii The Finding of the Trial Court That No Salary Schedule Existed Is Correct The evidence in this case falls so short of proving the allegation that the Board adopted and maintained dis criminatory salary schedule that we are surprised to see appellants still clinging to it on this appeal. One reason for their continued insistence that a salary schedule was used may he that in all but one of the reported decisions involving discriminations against negro teachers by school boards in the fixing of salaries such a schedule was in volved. Appellants are apparently proceeding on the as sumption that a theory which works in one case will work in another, regardless of the dissimilarity between the fact situations presented. Although appellants in their brief continually use the term “ salary schedule’ ’ they nowhere trouble to explain what it means. The meaning of the term may be gath ered from the opinions given in the cases referred to above. These cases are Mills v. Lowndes, 26 F. Sup. 792; Mills v. Board of Education, 30 F. Supp. 245; Alston v. School Board, 112 F. (2nd) 992; McDaniel v. Board of Instruc tion, 39 F. Supp. 638; Thomas v. Hibbitts, 46 F. Sup. 368; and Turner v. Keefe, 50 Supp. 647. 32 In all of these eases except the last one cited, there was a fixed schedule of teachers’ salaries provided either by state statute or by resolution of the school board in which the salary of any given teacher could be determined by sim ply referring to the schedule, the number of years of college training and the years of experience which the teacher had. The process of fixing salaries in all of these cases was automatic, and very little or no room was left for the exer cise of any discretion on the part of the School Board. One salary range was applied to white teachers, and another and lower range was applied to negro teachers. It would be difficult to imagine a situation which would furnish a more clear-cut example of racial discrimination than a case in which such a schedule was used. Compare the situations shown in the opinions cited above with the facts in the case at bar. Here, to begin with, there is not even an allegation that such a schedule is prescribed by statute. We must therefore turn to the testimony to find if one was established by the Board in any other manner. The “ Schedule” Produced by Susie Morris The “ schedule” referred to by appellants on page 4 of their brief is the mimeographed sheet headed “ Special Adjustment Plan” which the plaintiff Susie Morris pro duced in court (R.716). She testified that she found it in her mail box and that it had been discussed at meetings of the City Teachers’ Association, the association which was one of the original plaintiffs herein (R.158). This was all the light she could shed on the document (and in view of the fact that Scobee testified that he had never seen it before the trial (R.279) its origins are most ob 33 scure. Aside from the facts that it does not purport to be a salary schedule, does not show that any member or employee of the School Board was its author, and that the Superintendent knew nothing about it, its probative force is further weakened in that the record shows that salaries of teachers were subsequently fixed without any regard to its provisions: For example, one industrial arts teacher is shown to have been employed at $765 (R.331), and an other at $675 (R.250). Both figures are unreconcilable with the alleged schedule. Whether the trial Judge re flected that with the evidence concerning this document in the condition just described he could as easily infer that it had emanated from the City Teachers’ Association as from any other source, the record does show, but that he did not think it was entitled to much weight as evi dence of a salary schedule is shown by his comment which he made in his opinion: “ There is nothing on the face of this document which shows it came from the School Board, was authorized by the Defendants, or that it had any official sanction whatsoever. * * * The plaintiff had access to the records and minutes of the Board, and has introduced in evidence such records and ex cerpts from the minutes as she desired or saw fit. She has not pointed out to the court any place in those records or minutes where this document was mentioned, was before the board, or was considered or adopted by the board for any purpose. The court by an independent search has not found any men tion in the minutes of this Exhibit No. 4, nor any thing to fix responsibility for or knowledge of this document upon the directors. The evidence shows that plaintiff ’s salary and that of some of the other teachers at Dunbar High School, where she is a teacher, are at variance with the provisions of this document, and it is not shown that the salary of any 34 colored teacher is in accord with it. This is the only schedule of salaries for colored teachers which the plaintiff claims existed. She admits she has never seen a schedule for white teachers, but thinks that the Board must have one, that any Board must have a schedule of salaries.” * * * # # “ The court is of the opinion and so finds that Plaintiff’s Exhibit No. 4, “ Special Adjustment Plan Negro Teachers, May, 1940,” was never a salary schedule officially adopted, or promulgated by the defendants here, and was never followed by them” (R.806-807). ' In this connection it should he pointed out that it has been held that where statements are made in the opinion of a District Judge which are in the nature of findings on the evidence, such statements are deemed presumptively correct and will not be set aside unless clearly erroneous. Stennick v. Jones, 282 Eed. 161, 164. Testimony of Appellees on Schedules The findings of the Court are fully sustained by the testimony of the Superintendents and the members of the Board of Directors. A summary of their testimony on this subject follows: Mn. S c o b e e : I remember distinctly asking the Board of Education when I was brought here for interview whether—that was one of my questions about the situation— as to whether or not they had a schedule. They said “ N o” . Since I have been here I have looked over the minutes; I went back as far as 1925. I didn’t find any schedule in the 35 minutes. I found no directions on the part of the School Board fixing minimum salaries at which teachers should be employed. The Board has never designated any specific figure for the employment of white or colored teachers (R.201). M bs. M cDermott: There was a salary sched ule considered about 1928 (R.39). It was presented to the School Board, but I cannot remember that it was ever really adopted. The minutes would show that if we had formally adopted it. It was either 1929 or 1929 that a schedule was presented. It seems to me we tried to work out on that, tried to fit our financial means into it and had to abandon it because the depression was so had we could not work on any regular schedule. There is no fixed salary schedule now in operation by the Board. No such schedule has been in operation for the last ten or twelve years, so far as I know. I know of no instance in which the Board has specifically limited the Superintendent or limited the salaries; that is largely left to his judgment. The Board has not to my knowledge instructed the Superintendent that he must adopt $810 as a minimum salary for white teachers, or $615 and $630 as minimum sal aries for colored teachers (R.49-50). M bs. R aw lings : Y ou see, there has been no salary schedule discussion since I was on the Board (R.85). I have never seen a fixed schedule used by the School Board. The Board has not instructed the Superintendent to use certain figures for mini mum salaries in employing teachers (R.93). R obert M. W illiam s: I have not found that the Board has in use a salary schedule since I have 36 served on it. I have never seen such a schedule. No such schedule has been discussed at the Board meet ings at which I have been present (R.355). I have never seen Plaintiff’s Exhibit 4 (the mimeographed sheet entitled Special Adjustment Plan) before. I have not seen such an instrument in any meetings of the School Board which I have attended. To my knowledge the Board has not adopted a schedule which that purports to be (R.359-360). Murray 0. Reed: I have not found there is a fixed schedule for salaries since I have been a mem ber of the School Board. The Board has not, so far as I know, instructed the Superintendent or any other person as to any particular limit or minimum salaries to be used in employing teachers (R.109). Dr. R. M. Blakely: I have seen no fixed sal ary schedule used by the Board in fixing salaries since I have been on the Board. There is none, so far as I know. The Board has not told Mr. Scobee that a certain teaching job carried a fixed salary which he had to pay (R.79). E. F. Jennings: There is no fixed salary sched ule used by the Board in employing teachers for the first time that I have ever seen. I don’t know of any schedule for renewing contracts each year (R. 28-29). Such is the testimony of the Superintendent and Di rectors on the subject of the adoption and use of a sched ule. As has already been pointed out, Scobee became Superintendent in February, 1941, and four of the six members of the Board of Directors took office subsequent 37 to February, 1939. None of them could be expected to bave personal knowledge of events wbicb occurred before they became connected with the Board. The testimony of the two members who had been on the Board longer has just been given. In an attempt to show that a schedule was established before 1941, plaintiff introduced in evi dence selections from the minutes of school board meet ings as far back in time as 1926. We turn now to an an alysis of those minutes. Minutes of Board Meetings In the minutes of the meeting of June 7, 1926, this appears: “ The following recommendation was made by / the Superintendent: ‘ I recommend that the B. A. degree teachers without experience get $100, $110, \ $115, according to assignment to elementary, junior j high, or senior high, respectively.’ ” (R.514). Any contention that this entry amounts to a schedule can be disposed of by considering either of three undis puted facts: First, the minutes do not show that this recommendation was adopted by the Board; Second, this recommendation was not followed in the subsequent em ployment of teachers. A glance at the minutes of meetings after this date will show that the salaries at which teachers were employed does not conform in any way to the pattern which the Superintendent’s recommendation described; Third, even if it be said that this recommendation amounts to a schedule, it is still of no value in sustaining the plain t iff ’s allegation. Schedules in themselves do not violate the 14th Amendment. To be objectionable they must be discriminatory. There is not a word used in the minutes 38 of this meeting to show that in making his recommendation the Superintendent had race or color in mind. The minutes of the meeting of January 31, 1938, con tain the following: “ The schedule for new teachers shall be elementary $810, junior high $910, senior high $945“ (R.576). Again, there is no suggestion that this was to be applied differently to negro and white teachers. This meeting was held three years before Scobee came to Little Rock and.it is his testimony that he was never directed by anyone to conform to the recommendations contained in these minutes. Further, the proof is that he did not conform to the figures shown above: The record shows that he recommended many new junior high teachers at less than $910 and one at $1,125 (R.233-240), and at least one new high school teacher was recommended at less than $945 (R.233). The only respect in which it appears that this schedule might have been heeded is that no white elementary teachers were hired at less than $810; but Scobee testified that he had recommended this sum for these individuals because he thought they were both worth that and not substantially more (R.243, 248, 250 ff) . About the minutes of this particular meeting the Dis trict Judge made these remarks: “ It is difficult to tell from a perusal of this exhibit whether it is a schedule of salaries, a sched ule of adjustments, or both, and if both where they merge. “ If this is the schedule of salaries upon which plaintiff relies, standing alone it completely refutes her contention, as there is not one word therein even suggesting that white teachers and colored teach ers were to be paid a different rate of salary. Fur thermore at the time plaintiff filed her suit she 39 knew nothing of this document and only discovered it when given access to the records of the Board. The evidence in this case clearly discloses that this ‘ recommended salary schedule’ was not followed noi observed, as the records show that many teachers, both colored and white, were employed at salaries entirely different from those mentioned in this so- called schedule” (R.805). * * # ‘ ‘ The Court does not find that the alleged salary schedule of 1938 which was recommended and appar ently adopted was such a salary schedule or was ever put in force and effect. If it ever was a salary schedule in force and effect, under the evidence in 1his case it was never followed by the Board or Superintendent, as all of them testified positively and without equivocation they never saw, knew or heard of any salary schedule. If it was a salary schedule adopted by the hoard it makes no distinc tion between white and colored teachers or prin cipals, and does not hear or tend to bear out plain t if f ’s contention.” It will be noted that the minutes of the January, 1938, meeting recite that there was a schedule in 1928 which remained in effect for two or three years and then was rendered inoperative by the depression. The only other reference to this 1928 schedule is found in the minutes of May 21, 1929 (R.525). No such schedule was described in the records of the School Board and none was intro duced in evidence. Mrs. McDermott, who was the only member of the Board serving as early as 1928, positively testified that a schedule was presented to the Board and considered at that time but was never adopted. These are the only references to a “ schedule” con tained in the records of the Board over a period of 18 40 years. The word does not appear in the minutes of any meeting after Scobee’s employment. The importance of this is heightened by the fact that two of the members of the Board of Directors took office subsequent to the date Scobee became Superintendent. The broadest pos sible inference which can be drawn from a reading of these minutes is that on two occasions before Scobee’s time the Board prescribed minimum salaries for new teachers, negro and white alike, and that the formulae so prescribed were never followed. A warning should be given concerning these minutes. In some of them it is true the race of the teacher is given by a designation such as “ colored” or “ negro” . In others no such designation of race is made. For example, the name of Julius White appears in the minutes of the meet ing of September 1, 1931 (R.543). Nothing is contained in the minutes to show that this teacher was a negro. Yet we know that he must have been a negro because the min utes show that he was appointed to succeed John Hibbler who is designated as a negro in the minutes of July 29, 1929 (R.526), and also because the list of teachers for 1930-1931 shows that John Hibbler taught at the Dunbar High School (R.537). The same is true of the minutes of July 29, 1933 (R.559), where by the same process of syn thesis it can be found that several of the teachers named were negroes though there is nothing in the minutes to indicate this. In other words, no consistent practice of designating teachers according to race appears to have been followed in the keeping of these minutes. One wit ness testified that this was largely a matter of chance, depending on the person who happened to make up the minutes. 41 Salary Lists Included in tlie minutes are several salary lists. The lists show the names of the teachers and the school year. The first is the list for 1930-1931 which is apparently a complete list of all the teachers in the system at that time (R.529). It shows on its face that the salaries were in dividually fixed: In most of the schools, negro and white alike, there are not more than two teachers receiving the same pay. This list also shows the salary increase which was made that year. Most of the teachers in white schools received a $100 increase, some $50, some none at all. A few received increases of between $50 and $100. Evi dently the lower paid teachers were given the lower in crease. All but two of the negro teachers received a $50 increase: one received $100, one none. The next list is that of May 27, 1933, which shows the salary cuts made that year. Once more, it is rare to find two teachers making the same salaries. The cuts are shown to have been made on the basis of salaries—the higher the salary the larger the cut. This list is otherwise un- instructive except that it shows the salaries of twenty- eight negro teachers all to be higher than the salaries of twenty-five white teachers (R.549-558). The third and fourth lists begin, respectively, at pages 599 and 615 of the record. They show only the names, schools and sal aries. Again it is impossible to find any consistent pat tern or to fit these lists into any fixed mold. (The last list is that which begins at page 631 and shows only the supplementary payments made in 1941 and 1942. These supplementary payments are discussed in part II of this brief). 42 It is impossible to arrive at the salaries shown on these lists by the nse of any schedule or mathematical cal culation. The variations between the salaries of white teachers are as great as those between the salaries of col ored teachers and the differences within the lists of white teachers are as great as any that will appear in a com parison between the salaries of white and colored teachers. If the court will compare these lists with defendants’ Ex hibit 3 (R.768-778), using only the factors of degrees and years of experience, this will readily become apparent. The differences in these salaries cannot be explained by any schedule, nor can lliey be explained on tbe basis of race or color. The only possible explanation is that the salary for each individual was fixed on the basis of what the Superintendent and the Personnel Committee believed his or her individual qualifications to be. In determining salaries on this basis, the Board was exercising its judg ment and discretion. No claim was made or is being made that in the exercise of this discretion mistakes were never made or that no inequities existed. Appellees merely con tend that in arriving at the salaries of the various candi dates they exercised in good faith their best judgment and that the race or color of the teacher had no part in forming their estimates. We have discussed the minutes and salary lists in some detail, regardless of their antiquity. It should be pointed out, however, that many of the teachers who were employed by the Board in 1930, for example, are now no longer with the District. The complaint alleges that Sco- bee and named members of the Board were following a discriminatory schedule and policy at the time the com plaint was filed. In the view we take of the case, if the evidence shows that no such schedule or policy has been 43 followed since Scobee became Superintendent, then the evidence as to what happened before that time becomes ir relevant. It is unnecessary to cite authority in support of the statement tliat neither a declaratory judgment nor an injunction will be entered for the purpose of settling ab stract or academic questions. In the foregoing part of this brief we have endeav ored to discuss all the evidence in the Record which has any bearing on the question of schedules. We respectfully submit that the findings of the District Judge that no such schedule was followed is fully sustained. in The Finding of the Trial Court That No Discriminatory Policy Was Followed Is Correct Appellants in their effort to show a discriminatory policy on the part of the Board discuss at pages 8 and 9 of their brief fragmentary excerpts from the minutes of the Board from the period 1926 to 1929. It is difficult to see how the Board’s actions at a time when only one of these defendants had a voice in its affairs and nine years before the plaintiff was employed can have much bearing even on policy; but since appellants have seen fit to rest their contention as to the existence of a dis criminatory policy largely upon these old minutes, we will discuss them first. Minutes, 1926— 1929 The first instance of an alleged discrimination appel lants point to is the hiring of a negro teacher at $80 a month on January 30, 1926 (R.512). In the same list it 44 appears that one white teacher received $80 after a pro motion. The minutes of that same year show that other negro teachers were employed at $80 (R.515, 516) and $125 (R.516); and various white teachers at $90 (R.515). At one time in 1928, four white teachers are shown to have been hired at $80. In that same list one negro is shown to have been given $125 (R.523-524). I f any deliberate policy of discrimination had been followed at that time, these salaries would not thus have overlapped. Since appellants have gone through these minutes and picked out instances where negro teachers were employed at smaller salaries than white teachers, it is only fair for us to show that in many cases the converse was true. Some examples have already been given. On July 1, 1930, ten white teachers are shown to have been employed at sal aries ranging from $925 to $971.25. In the same list, the alary of one negro is given at $1,346.96, one at $1,200 and one at $1,017.50, and one at $925 (R.540-541). On June 27, 1931, one negro teacher was employed at $1,000, and another at $1,100. The examples just given are typical, not exhaustive. The recommendation which the Superintendent made to the Board in 1926 proposing a fixed basis for the sal aries of new teachers with B. A. Degrees has been dis cussed in Part I. The other matters shown by the early minutes and emphasized by the appellants are the general increases made in 1927, 1928 and 1929. Naturally the only testimony concerning the basis which was used for these increases is that of Mrs. McDermott as she was the only witness who had any connection with the Board during this period. She testified that the basis used for the 1927 and 1929 increases was the flat pay of the teachers; that the increases were made to correspond with the salaries the 45 teachers were then drawing (E.34, 57). It is her testimony concerning- the 1927 increase which appellants have quoted at such length at page 42 of their brief. There is no testi mony in the record at all as to the basis used for the 1928 increase. There are no lists in the exhibits showing the salaries of all teachers further back than 1930-1931. If these increases correspond with the respective salary brackets, there was no discrimination on the basis of race and color. Appellants had the burden of showing what the basis was. They had full access to the records of the District for the purpose of doing this. We submit that as to these early salary increases they have not sustained that burden. A caveat has already been given with respect to the minutes which appear in the Record. It should be added to what has already been said that these early minutes do not show the training, degrees or previous experience of the various teachers employed, nor even the name of the schools in which they were employed to teach. It is therefore almost impossible to draw any definite conclu sion from the data which they contain. With this caution we turn to the history of the various changes in teachers’ salaries after 1929. The evidence from that point on be comes progressively less fragmentary and more coherent. The salaries of teachers in the Little Rock Special School District reached their apogee in 1929. During the depression they were subjected to two severe cuts and more recently efforts have been made to restore the sal aries of old teachers which had been cut and at the same time to adjust the salaries of teachers who came into the system after the cuts were made. Despite these restora tions and adjustments, the 1929 level has never been reached since RAO). 46 Salary Cuts, 1932—1933 The first salary cut was made on April 30, 1932. This was a flat ten per cent reduction except that the salaries of clerks drawing' less than $75 a month were not cut and teachers who had failed to make six additional semes ter hours in the preceding three years were cut an addi tional $75. The salaries of all male janitors, white and colored, were fixed at $60 a month (R.543). There is nothing in the way this reduction operated which tends to show any racial discrimination: In fact, it was specifically provided that white and colored janitors should receive the same salary. The second salary reduction was made May 27, 1933. As has already been pointed out, this cut was made strictly on a percentage basis— the higher the salary the greater the cut (R.549-558). It certainly cannot be said that there is any discrimination remotely connected with these two salary reductions. These are the only two salary cuts made. From this point on the minutes reflect a continual struggle on the part of the School Board to restore the salaries of teach ers to the level of 1929. Restorations, 1935—1938 The first restoration of salaries was made on March 21, 1934, when an increase of one-fourth of the amount of the second cut was made (R.559). On June 19, 1934, the Board adopted a recommendation of the Teachers’ Com mittee (as the Personnel Committee was called at that time) adjusting the salaries of certain principals who were given new assignments, and at the same time increased 47 by $30 the salaries of eight new white teachers who were receiving less than $688. This was done because these teachers had no cuts to be restored (R.560-561). On May 6, 1935, one-fourth of the second cut was restored (R.563-564). Together with the earlier increase, this amounted to a restoration of one-balf of the second cut. Again, the restoration was made on a percentage basis. The Board recognized that teachers employed after the cut was made would not be entitled to participate in this restoration and therefore it was provided that these teachers should receive an increase of $30. This applied equally to negro teachers as well as white. In point of fact, on a percentage basis the colored teachers were favored. The Board recognized that even these increases would not remove all inequities and therefore the Teach ers’ Committee was empowered “ to act in adjusting sal aries of any teachers whose salaries they think should be adjusted’ ’ (R.564), and it was provided that the adjust ment so made should be added to the next salary checks. It can scarcely be contended that any discrimination is shown up to this point. The third restoration was made March 30, 1936, and amounted to 150% of the increase just discussed or to 37%% of the second cut. This raised the total restora tions to 87% % of that cut but applied only to teachers who were in the system at the time it was made. Again, recognizing that this would be inadequate as applied to many teachers, the Board attempted to equalize the lower brackets for both white and colored teachers. White teachers receiving $832 or less were given an increase of $67.50 and white teachers receiving more than $832 and less than $900 were increased to $900. All colored teach ers who received $655 or less were increased $45 and all 48 colored teachers receiving more than $655 and less than $700 were increased to $700. It is apparent from this that if there was any discrimination in the method pro vided for this increase it was against those teachers, white and colored, who received salaries in the higher brackets because the largest increases were given to those who re ceived the least. The Board still kept in mind the teachers who had been employed since the salary cuts or whose salaries at the time of the cuts had been so low that they were not affected. It was provided that each such white teacher was to receive a $45 increase and each such negro teacher was to receive a $30 increase. Whether this operated in a discriminatory fashion depended on the percentage fig ures and not on the difference in the specific increases. Where the difference between salaries was less than two- thirds, this method favored the negro teachers. This negates any contention that there was a discrimination solely on account of race and color (R.567-568). The next blanket increase was that of May 11, 1938, when one-eighth of the second cut was restored (R.579). Together with the three previous increases, this com pletely restored that cut, leaving only the original 10% reduction unrestored. All of these cuts and restorations thus are shown to have been made on a percentage basis without regard to race or color. The only variations from the percentages of salaries were made in the cases of teachers who were new to the system and those in the lower salary brackets. As has been .shown, these increases favored those who received the smallest salaries over those receiving more. 49 General Salary Adjustment, 1940 The Teachers’ Committee made a study of all the schools and teachers white and colored in the entire sys tem and made a report to the Board based on that study, recommending salary adjustments on April 29, 1940. These recommendations of the Teachers’ Committee were adopted by the Board (R.590). Whatever the policy of the Board prior to this time may have been, it attempted to adjust and equalize the salaries of all teachers and therefore if a discriminatory policy is to be shown it must of necessity for the purpose of this suit be shown to have been followed after this date. An examination of this adjustment plan reveals that the teachers were listed by schools and it is self-evident that the adjustments were not made on a mechanical basis which took into account years of experience and college training only. For example, compare John Axtell and Paulina Litzke, both teachers in the Senior High School. They held the same college degree except that Miss Litzke had fewer semester hours to her crdit. Miss Litzke had no experience elsewhere as compared to Mr. Axtell’s three years and she had a total of five years’ experience alto gether as compared to the six years Mr. Axtell had. On 'Av' a mechanical basis every factor was in favor of Mr. Ax- tell, yet he received an increase of only $26 while she was ''t given $108, which made her salary after the adjustment larger than his. This is not an isolated example. Com pare Messrs. L. Beasley and Murphy Mears. The first had 168 semester hours as against the other’s 160, three years in Little Rock against the other’s five and one-half, four years elsewhere as against the other’s two. Except for semester hours, the second one was clearly entitled 50 to preference if the adjustment had been made on a mechanical basis, yet the first received a larger increase and after the adjustment was made still received a larger salary. All of these teachers were white. Had Messrs. Axtell and Mears been negroes appellants would claim these two cases as evidentiary of a discriminatory policy. The same method applied to Eloise Bradford and Thelma Bryant (B.593) shows that the latter was entitled on a mechanical basis to a larger increase, yet the larger in crease was given Eloise Bradford. If she were white, appellants would point to this as another example of dis crimination. Two of the members of the Teachers’ Com mittee which made these recommendations are defendants in the present suit and as will hereinafter be shown, both testified that in fixing salaries they acted only on the abilities of the individuals, their personality, character and other matters which entered into their individual qualifi cations and that race and color were never considered. We have endeavored in the preceding pages of this part of the brief to review all of the minutes bearing on the policy, custom and usage of the School Board in fix ing salaries from 1926 to 1940. We submit that it is im possible to spell out of these excerpts from the minutes of the Board any policy of discrimination against negro teachers because of their race or color. The adjustments just discussed were incorporated in the teachers’ contracts for the 1940-1941 school year which were made in May, 1940. In February, 1941, while these contracts were still in force, Scobee was appointed Super intendent. He had only been in office four months when the time came to award the contracts for the 1941-1942 school year and his testimony was that because lie had been Superintendent such a short time His information 51 concerning the hundreds of teachers in the school system was necessarily incomplete and for this reason ho renewed the contracts of most of the old teachers at the same sal ary they had received the previous year. Naturally, he did not have an opportunity to learn much about the teachers during the summer vacation in 1941. When school reconvened in September, he had prepared the in dividual rating sheets and at this time samples of these sheets were given out to the principals and supervisors and the process of rating teachers began. From time to time after this, Scobee had conferences with the various supervisors and principals concerning the teachers. Be fore this general survey of all of the teachers had been completed, however, the complaint which initiated this liti gation was filed. Scobee testified that after the filing of this suit he did not want to make any changes. As will be pointed out later, general changes in the salaries of teachers have been made since the trial. For the moment, we turn to the testimony of the members of the Board of Directors in an attempt to ascertain what they consid ered the proper basis for fixing teachers’ salaries was and to find whether race or color played any part in their considerations: M rs. M cD ermott : I have been a member of the Personnel Committee many times. We have never considered the question of color in our delibera tions. I have never heard a member of the Com mittee express an opinion about an applicant based on color. The color question would have no effect, have no consideration at my hand; it is the quality of work and service they can give (R.46-47). The question of race or color has never been discussed (R.56). On an occasion or two I questioned the Superintendent [as to why negro teachers were 52 recommended for less than whites] and he al ways put it on the basis of their preparation and ability to deliver. The majority of them are not just as well prepared. That is not altogether based on the school they come from (R.40). I would have to judge teachei's on an individual basis (R.60). The criteria by which Mrs. McDermott would evalu ate the worth of teachers is shown by the following testi mony : It takes something more than a college degree to make a teacher (R. 35). Just educational train ing don’t make a teacher; it takes a lot of back ground and a lot of culture and a lot of other things (R.41). [The value of teachers] would depend en tirely upon the ability to give to their students the knowledge they have. You can tell if you have much contact with them something of their inner resources and their personality and characteristics and whether they are capable really of interesting and holding the interest of the children they teach (R.45-46). In judging character, I would consider their standard of living. I don’t mean by that economic standard either, but their attitude toward a great many things, there you are asking me to evaluate character, their truthfulness, their loyalty, their dependability, all of those things go into it. “ Q. Isn’t that more or less the intangible things ? A. The intangible things. Q. Things it is hard to put your fingers on! 53 A. Yes, but very easily recognized as a whole” (R.55). M rs. R aw lings : You can’t use one yardstick as to the qualifi cations of all negro teachers, nor can you as to all white teachers (R.84). I think there are some negro teachers as good as some of the white teach ers, but I think there are some not as good. There are some getting more than the white teachers (R.88). The race question never came into it. The race question has never come into any of our con ferences. Nobody has ever said anything about the race question, of the fact [the plaintiff] is a negro, at any meeting I have ever been to (R.92). As a member of the Teachers Committee, in employing applicants, you take into consideration their qualifications as a teacher, their educational background, their training, their aptitude, their cooperative qualities and things of that kind; there are intangibles you can’t exactly put your finger on in selecting a teacher. In trying to evaluate the applicants I use my best judgment (R.94). I f their qualifications, their background, their aptitude, their attitude and all were the same, I would be willing to pay them the same, regardless of color, if they were teaching similar subjects (R.95). It will be noted that Mrs. Rawlings remarked that there were negro teachers employed by the District whom she considered to be superior to some white teachers and 54 that there were negro teachers who were paid more than white teachers. We digress for a moment from our sum mary of the testimony of the Directors to call the Court’s attention to this important feature of the evidence. From a reading of appellants’ brief one gathers that the situa tion with respect to the salaries of white and negro teach ers in Little Rock is similar to that involved in Mills v. Board of Education, 30 F. Supp. 245. At page 249 of the opinion, Judge Chestnut said: “ I also find from the evidence that in Anne Arundel County there are 243 white teachers and 91 colored teachers; but not one colored teacher receives as much salary as any white teacher of similar qualifications and experience.” Such is definitely not the case here: take for ex ample Ella Dickey, a negro teacher with two years’ col lege training, 33 years’ experience in Little Rock, who teachers 5A and 6B in Gibbs School. Her salary is $1,012.77. Mary F. Shelton, a white teacher, has a B.S.E. degree with 13 years’ experience in Little Rock, teaches 5A and 5B at a salary of $982.28. Emma Patillo, a negro teacher, is shown to have a B.S. degree,J27 years’ experi ence, and teaches literary appreciation in grammar school at a salary of $1,012.77. Cornelia Bruce, a colored teach er, has no college training, 32 years’ experience here, seven elsewhere, and teaches first grade at Gibbs at a salary of $1,195.49 (R.274-277). Other examples are giv en in the Record. In some of these cases, Scobee testi fied that the difference in the salaries was in favor of the negro teacher and in others in favor of the white. That discrimination should exist in favor of negro teachers is inconsistent with appellants’ theory that a deliberate pol icy of discriminating against them has been continued over the years. 55 A synopsis of the testimony of Murray 0. Reed, who was also a member of the Personnel Committee, follows: There are many reasons why most new negro teachers are paid less than most new white teachers: The qualifications are entirely different in most cases, personalities are different, their ability to teach is different, the supervision necessary in con nection with the School System over the negro teachers is entirely different (R.99). There is quite a wide range of salaries between various teachers. It is my idea that all of the teachers are paid on an individual basis (R.100). Race or color has never been discussed by the Teachers Committee or in any Board meeting that I ever attended prior to the filing of this suit. In selecting an applicant as a teacher the basis of my consideration would be the qualifications of the applicant for the particular job applied for; and that would be his or her training and experi ence as a teacher, education, the school or uni versity or college from which they came to us, their personality, their apparent ability * * * their age and various other things that might enter into the qualifications of a teacher: Their character and recommendations and things of that sort. In fixing salaries I did not consider the question of color as an element, nor does the Committee or the Board so far as I have been able to observe (R .l l l ) . E. F . J e n n i n g s : I have not served on the Teachers Committee since I have been a member of the School Board, 56 nor personally considered tlie individual qualifica tions of the school teachers in the system other than in the capacity of being a school board member (R.27, 31). I do not recall any instance in which the Personnel Committee recommended that an ap- applicant be paid a certain salary because the ap plicant was colored or white. Since I have been a member of the Board it has not discussed the policy of paying colored teachers less than white teachers because they are colored (R.29). As far as I am concerned I have left the fixing of salaries entirely to the Personnel Committee (R.31). Appellants, at joages G and 35 of their brief, have picked out of the testimony of Messrs. Reed and Jen nings certain isolated statements, and with these they try to give applicability to the rule of Roles v. School Board (see pp 74-77 of appellants’ brief). The testimony of Reed consumes 26 pages of the Record, and the testimony of Jennings 11 pages. Over and over again they em phasize the fact that there was no motivated discrimina tion against negro teachers. Though they referred to the fact that they thought negroes would accept lower sal aries than whites, they nowhere stated that the Board deliberately fixed salaries on that basis. Their testimony, taken in its entirety, is in harmony with that of the other members of the Board who repudiated the so-called eco nomic basis of fixing salaries. Reed merely spoke of what perhaps went on in the mind of the Superintendent. Scobee himself could more competently testify on that subject. Jennings made it quite clear that so far as he was personally concerned, he merely accepted the recom mendations of the Personnel Committee; so the explana tions extracted from, him must have been of the same 57 quality as those extracted from Reed. Even if any con flict between the testimony of Reed and Jennings and the other three members of the Board could possibly he generated, still the District Court had the right to ac cept the testimony which seemed more persuasive, and that being so, the rule of the Roles case is not relevant here. The testimony of Dr. R. M. Blakely: I thought the reason why the salaries of new white teachers ran above $810 and the salaries of new negro teachers ran on an average between $615 and $630 was their qualifications. It wasn’t one of my functions to check their qualifications (R.75). Race or color has never entered into it since I have been a member of the Board (R.77). I have never heard the question of race or color mentioned (R.78). It has always been my opinion that salaries are based on qualifications and color had nothing to do with it at all (R.80). Robert M. Williams was the last Board member to testify: I do not recall that I ever served on what we now call the Personnel Committee. The basis on which I as a member of the Board employ teachers is the qualification basis and the recommendations of the Superintendent, the Supervisors and Person nel Committee as to their fitness, qualifications and ability to teach in the public schools (R. The factors which R. T. Scobee, the Superintendent, considered important in employing teachers and in fixing salaries have already been enumerated. Time after time 58 in his testimony he stated that it was his policy to recom mend salaries on the basis of what the various candidates were worth (R.185, 204, 227, 267, 479, 485, 501) and that race and color played no part in his evaluation (R.329, 330, 350, 449). He said he did the best he could to recom mend salaries which corresponded with the teaching abili ties of the applicant (R.207). As has already been stated, he testified concerning each individual teacher whom he had recommended for employment during the 1941-1942 school year. When he testified he had of course a year’s experience with these teachers behind him upon which to base his appraisal of their worth. He said that a few of them were worth more than the amounts for which he had recommended them, but that he thought most of them had been paid about what they were worth. In two or three instances he admitted that he had made mistakes in ever employing particular teachers. His testimony can he summed up by saying that in every instance he con sidered in his best judgment both at the time the teacher was employed and at the time he testified that the new white teachers were better qualified as individuals and were worth the difference between what was paid the col ored teachers individually and what was paid the white teachers individually. Bonus Payments Appellants in their brief make much of the two bonus payments of 1941 and 1942. It appears that on these two occasions the Board found that it had more money on hand than had been anticipated and it was decided to dis tribute it among the teachers. About $14,800 was avail able in the fall of 1941 and $40,000 the following June (R.279). The question arose as to how the money should be distributed. The Attorney General of Arkansas ad- 59 vised the Board that this was within its discretion (R. 311). A committee of teachers was then appointed for the purpose of working out a plan of distribution and this plan was approved by the Board under a general un derstanding that on an average the colored teachers re ceived the same proportion as the white teachers (R.26, 30, 52, 76, 78, 89). It can easily be demonstrated that individual colored teachers received more under this plan than individual white teachers in another bracket; but within the same bracket the colored teachers necessarily received less. The testimony clearly shows, however, that this feature of the plan devised by these teachers was not understood by the Board members, who thought that pro portionate equality was being achieved. The Board, when it fixed the salaries for the year 1941-1942, did not have this distribution in mind because it was not known at that time that the money which was used for these bonuses would be available (R.97). It is this plan of distribution which appellants repeatedly emphasize as demonstrative of a “ discriminatory policy” on the part of Board mem bers. If discrimination by a “ policeman on the beat” is not state action (see Snowden v. Hughes, 321 U.S., 1), then surely a scheme prepared by a group of teachers and adopted by the Board under a mistake of fact is not state action “ for the purpose of a suit in a federal court” . Differences In Salaries The differences in salaries paid individual white and colored teachers may be accounted for in most instances by the two tests to which appellants would confine the Board—training and tenure. For example, the plaintiff Susie Morris taught English at Dunbar. She had an A. B. degree, six years’ teaching experience in Little Rock and five elsewhere and her salary was $706. An examina- 60 tion of defendants ’ Exhibit 3 reveals that there were only three white high school English teachers who had six years or less experience in Little Rock. One of these had eight years more total experience than Susie Morris, one had an M. A. degree and the third had five years more total teaching experience and in addition had qualified for an M. A. degree at the time of trial (R.264). All of the other white high school English teachers had M. A. de grees, many more years of experience than Susie Morris, or both. The other negro witness called by plaintiff to show discrimination was John H. Lewis, principal of Dunbar High School. The only person in the school system whose position was comparable to his own was J. A. Larson, prin cipal of the white High School (R.167, 175). Both men had M. A. degrees from Chicago (R.162, 259). Lewis was paid $2,742; Larson $3,712. The reason for this is obvious: There were 1,438 students in Dunbar as com pared to 2,812 in the white High School (R.259); and Lewis had been prinicpal of Dunbar 13 years as com pared to Larson’s 29 years (R.166, 173). When the sal aries are examined individually the reason for the dispari ties appears. Appellants emphasize that there were twenty-five col ored teachers in Dunbar High School receiving less than any white teacher in the system. These teachers are listed in Table 1 of appellants’ brief. Eight were employed after Scobee became Superintendent and he testified that in each of these cases he had arrived at his judgment of the individual’s value to the District after the usual in vestigation and interview and he thought his original evaluation was substantially justified. Appellants ham- mer away at the fact that he paid no new white teacher he employed less than $810, whereas, all new negro teach ers were employed at $615 to $630. To say that this in dicates discrimination is to ignore his statement that in his judgment no negro teacher he had employed was worth $810 to the District (R.185, 186). Of the other negro teachers in Table 1, one teaches laundry and one clothing, subjects which do not appear to be taught at the white high school. One, Lucile C. Bush, had her training in a non-accredited school (R, 653), and there is little or no testimony concerning most of the re maining teachers in this list. The only evidence concern- ing their teaching ability is found in the rating sheets. Appellants exaggerate when they say that these ratings completely harmonize the difference in salaries and jus tify them in every instance. On the basis of these ratings as to teaching ability, Scobee testified that several col ored teachers were receiving less money than they were entitled to receive on the basis of their own merit and in comparison to white teachers doing similar work. I~Ie also testified that some colored teachers receive too much on the same basis, that some white teachers receive too much and some too little (R.276,480,483). The rating sheets are not infallible, nor do they justify the salaries paid in all cases. Scobee merely said that the information contained in them was the best he had been able to obtain (R.499). In general, they do tend to justify the indiv idual salaries and they certainly show that the colored teachers were not discriminated against on the ground of race or color. In the foregoing part of this brief we have tried to discuss all the evidence which tends to show what the 62 policy of tlie Board has been. The method which appel lants use in their attempt to show a discriminatory policy consists of stirring together excerpts from minutes of the Board meetings as far back as 1926, fragmentary quota tions from the testimony of witnesses elicited in the course of long cross-examinations and lifted from their con text, a plan for a distribution of a bonus devised by a committee of school teachers and tables made up on an entirely different basis from that used by the Board in fixing salaries, and serving up this pot-pourri as “ policy” . We submit that the finding of the District Judge that no discriminatory policy against negro teachers has been followed by the Board is amply sustained by the evidence. IV The Rating Sheets Were Properly Admitted in Evidence The manner in which the rating sheets were made up has already been described. Scobee first discussed them in the spring of 1911 (R.423). The sheets were prepared during the summer (R.211), and given to the prinicpals and supervisors the following fall for use during the school year (R. 212, 280, 439, 444 and 454). The use of ratings was nothing new to them; ratings had been used for years (R.441, 454, 462, 465). After they rated the teachers the sheets were turned over to Scobee who copied the ratings on a composite sheet which included all of the teachers (R.214, 222). It is clear, therefore, that the sheets were prepared months before this suit was filed, and that the work of collecting information for them had been in progress sev eral months. Were the supervisors to stop in midstream 63 merely because there was a possibility that some of the in formation they were gathering might be used in this suit? The sheets were not prepared for the purpose of fixing salaries; their purpose was to determine teaching ability. The sponsors did not even know the salaries of the teach ers they were rating (R.431, 432). The intimation that an elaborate conspiracy existed between Scobee and the supervisors to falsify these rating sheets so as to make them justify salaries is fantastic. The sheets themselves show that this was not done, because Scobee testified that some of the salaries could not be explained by the rat ings. The manner in which the rating sheets of Dunbar teachers were filled out further repudiates this accusa tion. The ratings of these teachers on the 3-colunm sheets wras made over a period of two days. Mr. Scobee was not present one day. Hamilton later rated the Dun bar teachers at Garland. Appellants claim that it was un fair of Hamilton to have compared the Dunbar teachers with those at Garland because Hamilton testified that the Garland teachers were unusually good. It seems to us that a high school teacher ought to be able to survive the test of comparison with a grammar school teacher— even with an unusually able grammar school teacher— but, be that as it may, the manner in which these ratings were prepared, though it may reflect upon their accuracy, certainly cannot be reconciled with the notion that they were prepared as a result of advice of counsel for the pur pose of concocting favorable evidence in this suit. The sheets tend to show the relations between teach ing ability and salaries. There can be no doubt that they are relevant to the issues here involved. Everyone who had anything to do with this preparation testified except 64 the principals of four white schools, and counsel for appel lants stipulated that these witnesses need not be called (R.510). The supervisors and sponsors testified that the ratings they made represented their best judgment. They were available for cross-examination. Counsel for ap pellants tried at great length to impeach their testimony; to cast doubt upon the accuracy of their judgment; to min imize the weight that should bo given to their ratings. The sheets which contained these ratings are admissible in evidence under several theories. In the first place, they are admissible as official state ments. In this connection the appellants object that they were not prepared for the School Board. This is contra dicted by Scobee’s testimony (R. 211). Next it is said that no statute requires them to be made. That this is no bar to the admission of an official statement is shown by the following: “ It is clear that no express statute or regulation is needed for creating the authority or duty to make the statement. The existence of the duty, and not the source of its creation, is the sanctioning cir cumstance. Not all, nor the greater part, of an o f ficer’s conceded duties are expressly laid upon him by written law. They may arise from the oral and casual directions of a superior, or from the func tions necessarily inherent in the office. Where the nature of the office fairly requires or renders ap propriate the making and recording of a specific statement, that statement is to be regarded as made under official duty.” 3 Wigmore on Evidence (2d Ed.) 389. That the rule thus expressed represents the weight of authority is scarcely open to question: 65 “ * * * While the view has been asserted that rule applies only to records which some statute re quires to be kept, the more generally accepted view is that a statutory direction or authority is not necessary, but it is sufficient if the record is kept in the discharge of a public duty and is a convenient and appropriate mode of discharging that duty. Thus a record has been held admissible if it was kept by the direction of superior officers and in accordance with the rules and practices of the of fice, or made in the usual course of business.” 22 Corpus Juris, p. 802. The third objection is that the ratings were made by the supervisors and principals under Scobee’s direction. Again we quote from Wigmore: “ * * * The duty—in the sense 0f the direct re sponsibility—of making the record or other state ment is upon the general officer or head of de partment. But the authority to delegate a part of his work to subordinates is in effect a parcelling out of his duty, and the duty exists again for them in fractional form to the extent that the work has been thus assigned. Whether the duty of the sub ordinates may he thought to run directly to the im mediate chief or else to the Government is not ma terial. The fact is that they are not mere intruders or unauthorized substitutes, but possess lawfully the delegated duty; and the determining inquiry must be whether the general nature of the office authorized a delegation of the details of work. A statement, therefore, by a lawful deputy should be admissible” (p. 392). Finally, appellants object that the sheets are not admissible as official statements because they contain con clusions. To support this contention, they quote a state ment from 20 Am. Jur. 866 which was lifted verbatim 66 from Commonwealth v. Slaviski, 245 Mass. 405, 140 N. E. 465, where it was used to sum up the holdings of several Massachusetts decisions. Speaking of these very cases, Wigmore says: “ This learned (i. e. the Massachusetts) Court has indicated, in its several rulings, a marked tend ency to be needlessly and obstructively strict on this point.” op. cit., p. 408 note. The only other case cited by appellants which has any bearing on this point is Steel v. Johnson, 9 Wash. (2d) 347, 115 P. (2d) 145. That was an action for wrong ful death of a child. To minimize damages, defendant contended that the upkeep of the child would cost more than his services would be worth during his minority. To sustain this, a document was introduced which showed a minimum budget for the care of children, as calculated by the State Social Security Department. Necessarily, this budget had been calculated on general information, not on the specific child in question. The budget was ex cluded, however, on the ground that no statute required it to be made. In other words, both the Massachusetts and Washington courts applied the minority rule which excludes official statements not required by statute. For the federal courts to accept these narrow holdings would be to ignore completely the liberal spirit of Rule 43. But the rating sheets are admissible on an entirely different and independent ground. Members of the School Board are charged by statute with the duty of employing and paying teachers. Since the responsibilty of deter mining salaries is theirs, theirs also is the duty of keep ing in touch with the abilities of the teachers in order to know whether, in paying a teacher a certain salary, they 67 are spending the public money wisely or improvidently. A survey of the abilities of teachers, prepared for the in formation of the Superintendent and the Board, is there fore certainly made in the regular course of business of the school district. This being- so, the rating sheets are made competent evidence by 28 U.S.C.A., Sec. 695: “ In any court of the United States * * * any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of said act, transac tion, occurrence or event, if it shall appear that it it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. All other circum stances of the making of such writing or record, in cluding lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term ‘ business’ shall include business, profession, oc cupation, and calling of every kind.” This statute, being remedial, should be liberally con strued. Pollack v. Metropolitan Life Insurance Co., 138 F. (2d) 123. The rating sheets are admissible on still a third ground. A perusal of appellants ’ brief shows that all their objections to the sheets are premised upon the contention that they are hearsay. This is not the case. Individual rating sheets were prepared by the supervisors and prin cipals for each teacher. The ratings were then copied on the composite sheet. Appellants admit that the ratings were copied correctly (R.222). The persons who made G8 the ratings took the witness stand. They testified that the rating’s represented their knowledge of the abilities of the teachers at the time. Under these circumstances, the rating sheets were admissible as a record of the past recollection of the wit nesses, and are completely outside the operation of the rule against hearsay. “ * ** when the entrant himself comes with the entry to the stand, then the present principle alone (or that of present recollection) is involved. In this aspect, it is wholly immaterial that the entry was one of a regular series; neither that nor any other of the limitations to the hearsay exception has here any application. Yet the tendency to confuse the two is inveterate.” 2 Wig-more, op. cit., 17. All the requirements necessary to admit a document as past recollection recorded are met: the thing recollected was written when it was fresh in the minds of the witness who had personal knowledge of it, and they testified that the ratings represented what they recollected at the time they were made. Once this had been shown, the rating sheets automatically became incorpo rated as part of the testimony of the witness, and passed completely beyond the inhibition against hearsay evi dence. In concluding his discussion of the rule admitting memoranda of past recollection, Wigmore says: “ The truth is that these two grand rules—for memoranda of Past and Present Recollection—be ing the only rules of the Law of Evidence on the subject—have assumed a size which is out of all proportion to the real risks and defects of testi monial memory. * * * They are wise enough in them selves, as rules of thumb based on the usual situa- 69 tions presented at trials. But they are mere pro visional crudities, in the light of the complex actual processes of memory. “ Courts should cease to treat them as anything but provisional and crude aids to truth. The trial court’s discretion should be allowed to control. There should be liberal interpretation and liberal exemption. And no ruling of admission should ever be deemed an error worth noticing on appeal” (pp. 35-36). Finally, appellants are in no position to argue that the rating sheets should not have been admitted. The two negroes who were chosen as objects of discriminatory treatment were Susie Morris and John H. Lewis. As has already been seen their testimony showed no discrimina tion against them; in fact, Susie Morris said that unless the Board used a schedule based solely on college degrees and teaching experience there was no discrimination. No such schedule was proved. Having failed to show a schedule and having failed to show a single instance of dis crimination against a negro on the ground of race and color, appellants compiled tables based solely on college degrees and years of experience and asked this court to say that they make up a prima facie case of discrimina tion generally. These tables are made up largely from data which appears nowhere in the record except in the rating sheets. If the rating sheets go out, the tables go out. The doctrine of estoppel should prevent appellants from urging that the rating sheets are inadmissible on the one hand and at the same time using the sheets to bolster up their own case. See Standard Varnish Co. v. Jay, 149 111. App. 25. 70 v Appellants’ Tables In the appendix to appellants’ brief are 18 compara tive tables which purport to show that some negro teach ers are paid less than certain white teachers with com parable training and experience. It is these tables upon which appellants rely to establish their “ prima facie1’ case. The fundamental fallacy of the tables is that the Superintendent and the members of the Board testified that in the fixing- of teachers’ salaries many other ele ments were considered in addition to mere training and tenure and the two star witnesses for appellants, Susie Morris and John H. Lewis, both testified that there were important factors to be considered in fixing the worth of a teacher other than the two tests which are used in the tables. Lewis said that he would consider character and personality and that not only would he dis tinguish between degrees from accredited and non-ac- credited schools but that he would make distinctions be tween degrees from the same school (R. 170-171). Susie Morris said that training in an accredited school is more valuable than that in a non-accredited school (R.155). None of these things are considered in appellants’ tables. A comparison of tables 12 through 15 with the faculty data (R.642-656) compiled by consent of counsel, will show that although the tables purport to show teachers with “ comparable” degrees, the degrees, according to the tes timony of appellants’ own witnesses, are in fact not com parable. A few teachers are not included in the faculty data sheets because their applications had been introduced in evidence and were in the hands of the reporter when this data was compiled. It so happens that the first two 71 negro teachers in table 12 are not found in the faculty data for this reason. It does appear, however, that the last two negro teachers are not from accredited schools, whereas the white teachers are from accredited schools. This is also the case in tables 13 and 14 as all negro teach ers there named did some or all of their work in non- accredited schools, while all the white teachers received their degrees from accredited schools. Tables 16 through 18 cover teachers without degrees. All the colored teach ers named in table 16 except Marjorie Bush, as to whom we have no information, did all or part of their work in non-accredited schools and the white teachers did theirs in accredited schools. This same situation prevails among the teachers in table 17, Bertha Lee being the teacher who is not included in the faculty data. In table 18 the colored teachers without exception did part or all of their work in non-accredited schools and the white teachers did theirs in accredited schools. There are 40 colored teachers listed in tables 12 to 18. It is certain that at least 35 did their work in whole or in part at non-accredited schools. All of the white teachers did all of their work in accredited schools. Thus it can be seen that the discrimination which the tables are supposed to show vanishes when they are examined simply in the light of one of appellants’ own standards. To spell discrimination out of these tables, one has to ac cept as a premise the fact that a B. A. degree, wherever obtained, is equal in value to a B. A. degree from any other institution— an assumption which is shown to be un sound by the testimony of appellants’ own witnesses. The “ comparable” degrees and training in fact cannot be com pared. The negro teacher named in table 9 is from a non- accredited school and apparently has done no work to- 72 wards a higher degree, whereas the white teacher has a degree from an accredited school and has done work to ward an M. A. Table 2 shows only the futility of a mechanical yard stick. Lillian Lane was employed in an emergency after the term had already commenced and taught only a short time. Scobee said that he paid her what was necessary to obtain her for the emergency (R.236). Rhoda W. Wharry he believed to be worth what she was paid, and in fact she left the school system because she could command a larger salary elsewhere (R.228). Catherine Lee had two summers’ extra work to her credit which did not appear in the table (R.645). Of the negro teachers included in table 6, the one with the most imposing qualifications is J. H. Gipson, whose degree is not from an accredited school. One of the four remaining negro teachers, Pinky Parr, proved to be out of her element in high school and was placed in an elementary school (R.251). All but four of the white teachers contained in this table have so much more experience than any of the three remaining negroes that no comparison can be made. The four white teachers to be compared with the three negro teachers are Wade L. Davis, whose 12 years’ experience includes teach ing and principalship (R.235), Clayton Elliott, who is full time coach for all athletics in his school during the entire year in addition to his teaching (R.262), F. M. Gardner who is assistant coach as well as a teacher (R.263), and Mrs. Guy Irby, who is a substitute mathematics teacher with a great many years’ experience (R.266), although the table shows no experience. Scobee said that she was well worth the salary in order to have her always available (R. 188, 266). The figure named in the table is not her annual salary but the basis for her pay when she does teach. 73 The only negro teacher in table 8 with a formidable record of teaching experience is Edna Douglass, who re ceived her degree from a non-accredited school (R.653). Of the white teachers, Everett Barnes and Vera Lescher with degrees from accredited schools and with 14 and 13 years of experience, respectively, are not comparable to any of the colored teachers in the table, nor is E. A. Bow den, who had almost 4 years of college work in an ac credited school and 22 years of experience in Little Rock. The other two white teachers were employed by Scobee, who testified that on the basis of their qualifications he thought they were worth the salaries which he recom mended for them. He also employed three of the colored teachers contained in this table and his testimony was that they were worth substantially what he had originally recommended for them. The foregoing discussion accounts for 12 of the 18 tables. The only things considered were the tables them selves, the faculty data and Scobee’s testimony. We sub mit that tables 9 and 12 through 18, or 8 of them, are completely invalidated by appellants’ own standards and that the other 4 tables are deprived of their significance to an extent to make them meaningless except to show that salaries cannot be fixed upon an arbitrary basis. Six tables still remain— 3, 4, 5, 7, 10 and 11. The salaries of the negro teachers included in table 11 most nearly approximate those of the white teachers. This is interesting because all the persons there shown taught music, a subject for which it is recognized that colored people have a natural and unusual talent. This is some indication that the salaries of the teachers are fixed on the basis of their ability. If the court will refer to the three-column rating sheet which was prepared by Scobee, 74 Hamilton and Lewis it will be found that Lester Bowie has an average rating of less than medium. If this rating were transferred to the five-column sheet it would be about four minus the rating which Hamilton gave him on the five-column sheet. None of the white teachers shown have a lower rating than 2 on the composite rating sheets. Ruth King, the other negro teacher, apparently was not rated on a three -column sheet but the rating she was given on the five-column sheet was 3. The ratings from the five-column sheets completely justify the difference in salaries and Bowie’s rating on the three-column sheet is so close to that given him on the five-column sheet that the small difference between the salaries seems easily justi fied, especially as it must be remembered the discretion of the Board must be given some latitude. The same situation is true with respect to table 7. The rating given India Elston on the three-column sheet corresponds to the rating of 4 plus given her on the five- column. J. L. Wilson does not appear to have been rated on the three-column sheet. Since the ratings given Bowie and Elston are approximately the same on both the 5 and 3-column rating sheets, there is some reason to be lieve that W ilson’s rating of 3 on the 5-column sheet is approximately correct; if so the difference in salary would seem to be justified. Of the white teachers included in table 4, Helena Keye is listed as having an A.B., whereas, at the time of trial she had qualified for her M.A. (R.264). Mary Paul Jefferson is shown not to have a degree but in table 2 she does have and the latter is correct. Lillian Lane, Rlioda Wharry, Mary Paul Jefferson and Catherine Lee are included in this table as well as in table 2 and what was said about them in the discussion of table 2 eliminates 75 the first two from consideration and explains the fourth. The only negro teacher included in table 4 is Clarice Little. On the 5-column sheet she was rated as 3. The- rating given her on the 3-column sheets is somewhat higher— approximately 2. Thus, in this particular case there is a discrepancy between the rating given on the 5 and on the 3-column sheets and if her rating is 2, then it appears that she is underpaid. It is easy to see what appellants have done on table 4. They have managed to find one teacher who shows up well on a comparative basis and a separate table has been compiled to throw a spot light on this isolated case which is supposed to suggest that all negro teachers are under paid. The case of Clarice Little is simply one of those which Scobee freely admitted could not be explained on the basis of the ratings. These isolated cases of under payment, it will be remembered, were not confined to negro teachers. We offer no extensive comments on tables 3, 5 and 10 because the negro teachers appear not to have been rated on the 3-column sheets. The ratings from the 5- column sheet shows a difference in ability. With table 10 appellants made a bad choice. Bernice Britt’s contract was not renewed and Dixie Speer taught for only one year. The other two white teachers are given the highest pos sible rating. We submit that it is impossible to draw any infer ence of discrimination from the tables contained in appel lants’ brief. 76 VI Matter De Hors the Record Superintendent Seobee came to Little Rock in 1941. He could see some inequalities, and immediately com menced a program of adjustment. To date be has made steady progress. In view of the fact that appellants ask for a declaratory judgment and an injunction, we consider it appropriate to bring to the attention of this Court ma terial changes in the background which will show that only moot or abstract questions are before the Court for adju dication. In Ridge v. Manker, 132 F. 599, this Court said: “ An apellate court may avail itself of authen tic evidence outside of the record before it of mat ters occurring since the decree of the trial court when such course is necessary to prevent to mis carriage of justice, to avoid a useless circuity of proceeding, to preserve a jurisdiction lawfully ac quired, or to protect itself from imposition or fur ther prosecution of litigation where the controversy between the parties has been settled, or for other reasons has ceased to exist. Chamberlain v. Cleve land, 1 Black, 419, 17 L. Ed. 93; Lord v. Veasie, 8 How. 251; 12 L. Ed. 1067; Wood Paper Co. v. Heft, 8 Wall. 333, 19 L. Ed. 379; Board of Liquidation v. Railroad Co., 109 U. S. 221, 3 Sup. Ct. 144, 27 L. Ed. 916; Dakota v. Glidden, 113 U. S. 222, 5 Sup. Ct. 428, 28 L. Ed. 981; Little v. Bowers, 134 U. S. 547, 10 Sup. Ct. 620, 33 L. Ed. 1016; Washington v. Idaho Railroad Co. v. Coeur D ’Alene R. & N. Co., 160 U. S. 101, 16 Sup. Ct. 239, 40 L. Ed. 355; Bryar v. Campbell, 177 IT. S. 649, 20 Sup. Ct. 794, 44 L. Ed. 926” (p. 601). 77 In T idal v. South American Securities Co., (C. C. A. 2) 276 F. 855, the rule is expressed as follows: “ We have no doubt that it is the duty of a court to dismiss an appeal and not proceed' to formal ."judgment if pending the appeal an event occurs without any fault of the defendant which renders it impossible for the court, if it should decide the case m favor of the plaintiff, to grant him any effectual relief whatever. Mills v. Green, 159 U S 651, 16 Sup. Ct. 132, 40 L. Ed. 293; Board of Flour Inspectors v. Glover, 160 U. S. 170, 16 Sup. Ct. 321 40 L. Ed. 982; Kimball v. Kimball, 174 U S 158* 162, 19 Sup. Ct. 639, 43 L. Ed. 932. And the cases show that facts which have occurred since the de cree and which make the question at issue moot and which are outside of the record may be proved by extrinsic evidence. See Lord v. Veazie, 8 Iiow. 251, 12 L. Ed. 1067; Dakota County v. Glidden, 113 U. s! 222, 225, 226, 5 Sup. Ct. 428, 28 L. Ed. 98; Califor nia v. San Pablo & Tulare Railroad, 149 U S 308 13 Sup. Ct. 876, 37 L. Ed. 747; Ridge v. Manker, 132 Fed. 599, 601, 67 C. C. A. 596” (p. 874). We have reconstructed and placed in the Appendix the tables contained in appellants’ brief, and have indi cated therein the present salaries being paid to the same teachers. In each instance where the teacher is no longer employed by the District, we have indicated that fact by use of the word “ out” . Table 1 shows that all negro teachers in the group who are still employed have received substantial increases in salary. Table 2 is omitted because Susie Morris is no longer employed by the District. Tables 3, 4 and 5 are omitted because the only negroes included are no longer employed by the District. Table 6 shows substantial increases to the negro teachers still employed. Table 7 is omitted because the two negroes included are no longer employed by the District. Table 8 shows that the 78 negro teachers who are still employed have obtained sub stantial increases. Table 9 shows that the negro and white teachers now receive the same compensation. Tables 10 and 11 are omitted because all negroes mentioned there in are no longer employed by the District. Table 12 is interesting. It shows that Frances Pope (now Kibbler, the appellant) has been increased from $615 to $1,430, and that she is being paid more than four white teachers. Tables 13, 14, 15, 16, 17 and 18 show substantial changes in the salaries of all those who remain in the employ of the District. It would be improper here to go into any extraneous matter which would show that the present salaries are non- discriminatorv. That question can be settled later, if it should ever arise. We merely refer to the present salaries to show that drastic adjustments have been made since the case was tried, and that the factual basis upon which the appellants ask for a declaratory judgment and an injunction has been completely changed. This Court, in Ridge v. Manlier, supra, said that evidence de hors the record which is tendered an appellate court must be “ au thentic” . We do not believe that the appellant, Frances Kibbler, will deny the statements concerning the change in her salary, or that opposing counsel will deny the factual data contained in the reconstructed tables. 79 vix CONCLUSION The judgment of the District Court should be affirmed for the following reasons: 1. The findings that no discriminatory schedule or policy was followed by the Board are founded upon suffi cient evidence and should not be set aside by this Court. Where several reasonable inferences may be drawn from the evidence and findings are based upon one of these in ferences, they will not be disturbed on appeal. Tenn. Coal, Iron & By. Co. v. Muscoda Local, 137 F. (2d) 176, 184. 2. Even if it could be said that the evidence does not sustain the finding that there was no discriminatory policy, the decree should be affirmed— (a) The Relief Ashed Would Be Ineffectual This suit was instituted primarily as an attack upon the alleged salary schedule. Of course had such a sched ule been in operation an injunction or a declaratory judgment would have been an effective form of relief as either could have removed the discrimination by vitiating the schedule, but no such schedule was proved and there being nothing upon which an injunction or a declaratory judgment could operate specifically and no individual who was specifically shown to be discriminated against, no court could do more than make a vague announcement that there was a general policy of discrimination based on color. The prayers for relief contained in the complaint simply request a blanket indictment of the manner in which the salaries of negro teachers were fixed generally. An appellate court would be justified in refusing to make such 80 an all-inclusive condemnation. The granting or refusal of a declaratory judgment lies within the discretion of the court. Aetna Casually & Surety Co. v. Quarles, 92 F. (2d) 231; American Auto. Ins. Co. v. Pre-unit, 103 F. (2d) 613; Brillliart v. Excess Ins. Co., 316 U. S. 491. One proper ground for refusing it is that it will not settle the rights of the parties with finality or terminate the controversy. Senate Report No. 1005, 73rd Cong. 2nd Session; Miller v. Miller, 149 Tenn. 463, 261 S. W. 965; Maryland Cas. Co. v. Consumers Finance Serv. 101 F. (2d) 514; Delno v. Market St. By., 124 F. (2d) 965. Others are that no prac tical benefit could follow its rendition, Redlands Foothill Groves v. Jacobs, 30 F. (2d) 995; and that it is “ not neces sary or proper at the time under all the circumstances” . Borehard on Declaratory Judgments, 107. The same rules apply to the other form of relief which appellants ask— the equitable remedy of injunction. Virginian By. Co. v. Federation, 300 U. S. 515, 551; DiGiovanni v. Camden Ins. Assn., 296 U. S. 64, 73; Mills v. Loivndes, 24 F. Supp. 792, 803. What purpose would have been served by declaring that the Board, in fixing negro teachers’ salaries, was guilty of discrimination generally? Such a declaration would have been of no benefit to a single negro teacher. The undisputed proof shows that many negro teocliers were not discriminated against on the basis of the test used by appellants or on any other basis. Many of the matters which appellants point to as evidentiary of dis crimination occurred before some of these negro teachers were employed. The effect of a declaratory judgment saying that the Board was guilty of discrimination in a general sense would be to say that an indeterminate num ber of unspecified persons were discriminated against in 81 different ways. A declaratory judgment of a more incon clusive character cannot be imagined and we submit that the entry of one should not be directed by this Court. (b) The Issues Are Noiv Moot This suit was brought on the theory that the salaries of white and negro teachers in 1942 were fixed in such a manner as to discriminate against the latter. All the evi dence in the record relates to the salaries at or before the time of trial. It has been shown that since that time there has been a complete readjustment of the salaries of all teachers, negro and white alike. The result of this change has been to increase the salaries of nearly all teachers, but the most substantial increases were made in the cases of negro teachers. These changes have been so far-reacli- ing and substantial that almost no relation exists between the salaries fixed at the time of trial and the salaries which are in effect at the present time. Therefore, any declaratory judgment or injunction entered now for the purpose of settling whether or not the salaries in 1942 were fixed in a discriminatory manner would merely de cide an abstract and moot question. The situation here is very similar to that which confronted the court in Texas & Pac. Ry. v. Interstate Trans. Co., 155 U. S. 585. There the plaintiff sought to enjoin the defendant from towing more than two barges at a time under plaintiff’s bridge on the ground that the bridge had been damaged by long strings of barges towed under the bridge when the river was at flood stage and that further damage caused in the same manner would be irreparable. The defendant filed a general demurrer which was sustained by the lower court. The Supreme Court held that the demurrer should have been overruled but refused to re verse the decree, saying: 82 “ Nearly four years have elapsed since the filing of the bill, and the exigency created by the circum stance of the unusual flood, which was made the principal foundation of the hill, has long since passed away. To now entertain the bill would be to deal with a state of affairs no longer existing, and which possibly may never recur.” It has been settled that no court should render a declaratory judgment to decide a moot question. New Discoveries v. Wisconsin Alumni Research Foundation, 13 F. Supp. 596. Imperial Irrigation District v. Nevada- California Electric Corporation, 111 F. (2d) 319. We submit that the facts shown by this record pre sent only moot and abstract questions concerning the salaries of teachers in Little Rock and that this reason alone is sufficient to justify this Court in refusing to re verse the judgment rendered by the District Judge. Respectfully submitted, B aucum F ulkerson W illiam Nash A. F . H ouse Attorneys for Appellees APPENDIX TABLE 1 N e g r o h i g h s c h o o l t e a c h e r s g e t t i n g l e s s s a l a r y t h a n any W H IT E T E A C H E R IN E IT H E R H IG H OR E L E M E N T A R Y S C H O O L IN L ittle B ock Experience Present Teacher Training L. R. Other Assignment Salary Bass, Bernice Brumfield, Eunice Bryant, Thelma yJ-Bvrd, Eva C. P/ Bush, Lucille C. “•Won, Annie Douglass, Edna Elston, India i/Garrett, Byrnice Green, 0. N. 3Heywood, Vivian Hunter, Andrew Johnson, Byron King, Ruth Lewis, Tessie Morris, Susie Moore, Dorothy . "Perry, Alice Bussell, John Scott, James D. vTorrence, Rosalie Tyler, Daniel P. Walker, Rose Mary Works, Mildred Winstead, Homer B.S. 5 1 A.B. 0 0 A.B. 3 y2 1 % A.B. 8 0 3C 4 3 A.B. 7 5 B.S. 15 0 M.S. 0 B.S. 3 4 0 0 A.B. 9 0 B.S. 5 0 A.B. 3 1 B.M.E. 4 5 A.B. 0 3 A.B. 6 5 A.B. 6 1 B.A. 11 0 B.S. 1 7 M.A. 8 41/2 B.S. 2 0 A.B. 0 y2 A.B. 4 0 B.S. 0 2 2 yr. 0 H. E. out Science out History out Library $1740.00 Laundry 960.00 M-E 1770.00 Science 1770.00 < i out Foods 1545.00 Carpentry out English 1740.00 Math. out Science out Music out English out English out L. out E. 1725.00 Science out Math. out E. 1385.00 Science out Science out Clothing 1230.00 Woodwork out 84 A C O M P A R A T IV E T A B L E OF M A T H E M A T IC S T E A C H E R S I X H IG H SC H O O L S W IT H A . B . DEGREES OR LESS T A B L E 6 School Teacher Training Experience L. R. Other Present Salary N. Senior-H Cox Annie A.B. 7 5 $1770.00 *1 £ £ i i Gipson, J. H. A.B. 17 4 out £ £ i i Gipson, Thelma B.S. 0 out £ £ i i Hunter, Andrew B.S. 5 0 out £ i < ( Parr, Pinkie A.B. 0 1560.00 S' W. “ < i Bigbee, J. R. B.S. 28 10 2337.171- £ £ 6 < Ivy, William B.M.E. 17 4 1930.00 / £ £ 6 l Moser M. C. A.B. 13 7 out Junior H Cobb, Clare 2%C 38 0 1824.18 '■ £ £ i 6 Davis, Wade L. A.B. 0 12 2100.00 4. £ £ ( L Elliott, Clayton B.S. 6 0 out £ £ C £ Gardner, F. M. B.S. 4 3 1545.00 1 £ £ £ £ Tull, N. F. 54-1/3 17 4 out £ £ £ £ Irby, Mrs. Guy A.B. 0 out £ i £ £ Riegler, Mary 2C 30 0 out 6 i £ £ Calloway, Estelle 2C 46 0 out 85 A C O M P A R A T IV E T A B L E OF S C IE N C E T E A C H E R S IN H IG H SC H O O L S W IT H A.B. DEGREES OR LESS T A B L E 8 School T cache r Training Experience L. R. Other Present Salary N. Senior 11(1) Brumfield, Eunice A.B. 0 0 out “ “ (2) Douglass, Edna B.S. 15 0 $1770.00 ZJ4" “ “ (3) Johnson, Byron A.B. 3 1 out “ “ (1) Russell, John B.S. 1 7 out “ - “ (5) Tyler, Daniel P. A.B. 0 y2 out “ “ (6) Walker, Rose Marv A.B. 4 0 out W. Senior “ (a) Barnes, Everett A.B. 14 2 2140.00 / - 1-5 Junior LI Avery, Julia Mae B.S. 0 1 out (2) “ Lescher, Vera A.B. 13 0 out 1-5 “ Cooke, Mrs. Eleanor A.B. 0 0 1485.00 W.-Junior “ Bo wen, E. A. 33 /4C (no degree ) 22 4 1881.37 1 TABLE 9 A C O M P A R A T IV E T A B L E OF H lS T O R Y T E A C H E R S IN H IG H SC H O O L S W IT H A.B. DEGREES Experience School Tteacher Training L.R. Other Salary X. Senior II Gravelly, Treopia B.S. 26 0 $1830.00 2 A. Senior II. Stegeman, Hattie A.B. 13 12 1830.00 t " 86 T A B L E 12 A COMPARATIVE TABLE OF ELEMENTARY TEACHERS W ITH A .B . OR COMPARABLE DEGREES AND 1 -5 YEARS EXPERIENCE IN L lT T L E ROCK Negro Teacher Training Experience L. R. Others Present Salary « Pope, Francis B.S.E. 1 3 $1430.00 i c Lewis, John A.B. 1 0 out 4 - “ Johnson, Pauline B.S. 0 0 920.00 q Wilkerson, Capitola B.S. 1 26 1275.00 White < < Fair, Marv Nance B.S.E. 0 2 out Threat, Kathryn A.B. 0 out « Terral, Mrs. Flovd A.B. 1 2 1405.00 < ( Gardner, Mrs. Lewis B.S. 0 1800.00 / - “ Obersham, Bettie B.S. 0 1 1315.00 2 . - “ Carrigan, Mary D. A.B. 0 3 1385.00 < < Street, Juanita A.B. 1 out < < Thomas, Martha B.S.E. 0 out < < McCuiston, Elizabeth 0 0 out < < Smooth, Raymond A.B. 0 out “ Belford, Susan B.S. 0 0 1290.00 ( < Crutchfield, Ann A.B. 1 0 out ( < Isgrig, Nancy Jane A.B. 0 0 out < ( Soard, Dorris A.B. 0 0 out 87 T A B L E 13 A COMPARATIVE TABLE OF ELEMENTARY TEACHERS W ITH A.B . OR COMPARABLE DEGREES AND 5 -1 0 YEARS EXPERIENCE IN L lT T L E R o CK Experience Present Negro Teacher T raining L. R. Others Salary 1 “ Hamilton, Elizabeth B.S. 6 10 $1385.00( 6 Jackson, Nancy A.B. 5 0 out i i Lee, Danice A.B. 6 1 out 3 ' “ Rice, Savali A.B. 7 0 1040.00 White < L Finn, Verna A.B. 5 3 out < i Jones, Ruth L.I. 5 5 out “ Clapp, Thelma A.B. 6 4 1740.00< < Holman, Lucille B.S. 8 0 out K. “ Harper, Verna B.S.E. 5 10 1800.00< < Ilardage, Edith A.B. 7 1 out “ Sittlington, Blanche B.M. 5 0 out 5 “ Wage, Georgia Dupree, Jeanne A.B. 7 5 1830.00 B.S. 6 3 out 88 A C O M P A R A T IV E T A B L E OF E L E M E N T A R Y T E A C H E R S AVITH A.B. OR C O M P A R A B L E DEGREES A N D 10-20 Y E A R S E X P E R IE N C E IN I jIT T L E R O C K Experience Present T A B L E 14 Negro Teacher Training L. R. Others Salary £ £ Patterson, Alva A.B. 12 5 $1030.00 £ C Touchstone, Bertha B.S. ny2 5 1020.00 £ c White Waters, Elnora A.B. n 0 1040.00 £ t Mason, Byrnice B.S. 14 2 1830.00 c c Perimen, Bess A.B. 13 0 1830.00 £ c Reynold, Averell A.B. 12 0 out £ £ Kinlay, Francis A.B. 13% 0 1800.00 i l Willard, Beryl A.B. 11 0 out 6 £ Shelton, Mary H. B.S.E. 13 0 out £ £ Reeves, Jessie A.B. 12 0 1800.00 £ £ Apple, Lorraine B.S.E. 141/2 0 1830.00 89 A C O M P A R A T IV E T A B L E OF E L E M E N T A R Y T E A C H E R S W IT H A.B. OR C O M P A R A B L E DEGREE A N D M O R E T H A N 20 Y E A R S E X P E R IE N C E IN L ittle R ock T A B L E 15 Experience Present Negro Teacher Training L. R. Others Salary 6 < Davis, Cordelia A.B. 26 6 $1040.00 i 6 Pattilo, Emma B.S. 27 0 out 6 C Sampson, Gertuse A.B. 22 0 out < 6 Roundtree Therassa B.S. 23 0 1770.00 i l Gilliam, Cora A.B. 21 10 out White < < Chandler, Blanche B.S. 29 0 1830.00 l < Jordan, Pauline A.B. 26 0 1830.00 < < Walker, Marqurite A.B. 35 1 1830.00 i < Junkin, Blanche B.S.E. 21 0 2060.00 6 6 Autry, Ester A.B. 24 2 1800.00 < C Schriver, Mary A.B. 21 3 1770.00 i < Pearson, Alice L.I. 28 8 1629.00 ( ( Hagler, Grace B.S. 26 4 1550.00 ( ( Renfrow, Mina B.S. 29 1 1830.00 90 T A B L E 16 A COMPARATIVE TABLE OF ELEMENTARY TEACHERS WITHOUT DEGREES AND LESS TH AN 10 YEARS EXPERIENCE IN I jITTLE R o CK Negro Teacher Training Expe L. R./ rience Others Present Salary l < Burns, Cleo 2 6 0 out t C Bush, Marjorie 2 1 0 out C i Burton, Hazel 2% 7 0 out < < Green, Thelma 93-hr. 7 0 out C i Dander, Alice • 3 9 0 1000.00 i i Wilson, Rosa 3% 6 0 out i i White Lee, Elnora 3% 0 out < < Pace, Josephine 2 6 6 1475.00 < < Arance, Leah 3 7 4 1550.00 i C James, Mildred 2 9 0 1475.00 i l Jacobs, Louise 3 3 4 1440.00 6 i Frost, Nell 1 7% 3 1475.00 i 6 Smith, Willie 2% 5 9 1475.00 6 C Bond, Alice 2C 1 1 1300.00 C 6 Grogan, Stella 3 0 12 out 6 i Whitley, Winnie 66-hr. 4 13 1550.00 91 T A B L E 17 A COMPARATIVE TABLE OP ELEMENTARY TEACHERS W ITHOUT DEGREES AND FROM 10-20 YEARS EXPERIENCE IN L lT T L E R o CK Experience Present Negro Teacher Training L. R. Others Salary C i Lee, Bertha 3% 13 17 $1040.00 i t Rutherford, Alice 2 15 0 1040.00 i 6 Abner, Irene C. 3 17 3 out( l Nichols, J. C. 3 15 0 out C l Collier, Bennie 3 14 14 1040.00 i l Conway, Essie 3 15 0 1040.00 i ( Jordan, Sallie 2 15 0 1040.00( ( White White, Almeta 2 18 0 1040.00 i i Cobb, Marion 2i/2 14 0 1550.00 6 C Farmer, Margaret 2 18 0 1550.00 i 6 Grayson, Mary Lee 2 16 0 1550.00 L i Owen, Jewell 1 15 10 1550.00 6 i Brookfield, Cora 3 17 8 1550.00< i Bullington, Inez 3 19 6 1550.00 i i Frankel, Caroline i y 2 20 10 1550.00 l i Goodwin, Ernestine 2 % 17 0 1650.00 l < Park, Mildred 1 17 4 1550.00 i i Poland, Brooks 2 13 0 1550.00 i i Lemon, Mrs. C. N. 2 11 4 1550.00 i i Witsell, Cherry 3 12 0 1550.00 l 6 Murphy, Elizabeth 2 17 3 out t 6 Woodard, Marie 54-hrs. 18 0 1550.00 i i Pittman, Marjorie 2 14 0 1550.00 i i Tunnah, Helen 1 18 0 1550.00 92 T A B L E 18 A COMPARATIVE TABLE OF ELEMENTARY TEACHERS WITHOUT DEGREES AND MORE THAN 20 YEARS EXPERIENCE IN LlTTLF, R oCK Negro Teacher 11 Dickey, Ella “ Bruce, Cornelia “ Murphy, Vera ‘ ‘ Ingram, Ennna “ Littlejohn, C. B. “ Anthony, B. E. D. “ Curry, Norena “ Routen, Estelle ‘ ‘ Lewis, Blanche White ‘ ‘ Cline, Fannie “ Power, Maggie ‘ ‘ Dill, Gertrude ‘ ‘ Hairston, Maude “ Jones, Nell “ Oliver, Effie “ Bruner, Nell “ Davis, Katie M. ‘ ‘ Earl, Annie “ McDaniel, Emma Katie Middleton, Opal ‘ ‘ Dunnvant, Zoe “ Lipscomb, Vanda “ Brown, Amelia ‘ ‘ McKinney, Grace “ Martin, Clay tie Experience Present Training L. R. Others Salary 2 33 0 $1105.34 0 31 7 1273.63 2 32 0 1105.34 2 34 0 1105.34 2 37 21 out 3 26 0 1040.00 2 23 0 out 3% 21 1 out 2 21 0 1040.00 2 33 1 1572.28 2 40 0 1629.673 1 24 2 1550.0. 3 22 15 1650.01 2 23 2 1550.00' 2 21 8 1550.01 2 22 0 1550.0- 2 23 0 1550.6 3 22% 9 1550.(1 i % 25% IV2 1550.01 2 22 3 1692.64- 2 23 0 1550.0(0 3 23 0 1550.00-' 3 22 0 1800.00 1% 22 0 1550.00 2 24 1 1650.00 United States Circuit Court of Appeals EIGHTH CIRCUIT IN THE S usie M orris, for herself and for others similarly situated, F rances B. H ibbler, Intervener-------------------------------------------------- Appellants v. No. 12,887— Civil R obert M. W illiams, Chairman, M urray O. R eed, Secretary; M rs. W . P. M cD er mott; M rs. W . F. R awlings; D r. R. M. B lakely and E. F. J ennings, Consti tuting the Board of Directors of the Little Rock Special School District, and R ussell T. S cobee, Superintendent of Schools ---------------- ——--------------------------------- Appellees SUPPLEMENTAL APPENDIX TO A PPELLEES’ BRIEF These tables were furnished Counsel for Appellants on April 19, 1945, pursuant to their request. B aucum F ulkerson W illiam N ash A. F . H ouse Attorneys for Appellees PARAGON PRINTING CO., LITTLE BOCK ' r v . . -u-.' ' ■ . : 4 :i "■ > ' / j ■■ f ~ a ■I ‘ V'V/a., ■ A jr \ a v • :■ ■ . At,Vrr'̂ y-' -A '■ v‘ ,s; v ■ ''■ V 1 • 3 }m v r ' ? jS > ■ i v A V t i > . • • . \ - V 4 1 j i '• . : ;V -> ‘ . ' fiU, (.,.■■ ‘\ ' • . . , • -nt , . , «•-• •:• / • k - r,t ' V A ' / . . . .r ̂ t- f$S%t8 ■•v wm h W M $ $v , ■ \ w-, ■ IN THE United States Circuit Court of Appeals EIGHTH CIRCUIT S usie M orris, for herself and for others similarly situated, F rances B. H ibbler, Intervener-------------------------------------------------- Appellants v. No. 12,887— C iv il R obert M. W illiam s , Chairman, M urray 0 . R eed, Secretary; M rs. W. P. M cD er m ott ; M rs. W. F. R aw lin gs ; D r. R. M. B lakely and E. F. J enn in gs , Consti tuting the Board of Directors of the Little Rock Special School District, and R ussell T. S cobee, Superintendent of Schools -------------------------------------------------------- Appellees SUPPLEMENTAL APPENDIX TO A PPELLEES’ BRIEF These tables are furnished pursuant to a request of appellants to show the names and present salaries of the successors to those teachers included in appellants’ tables who are no longer in the employ of the Little Rock School District. Table 4 was inadvertently omitted from the appendix to appellees’ brief. T A B L E 1 Teacher Nam ed in Salary Shown Appellant’s Table in Appellant’s Table Bass, Bernice $ 638.50 Brum field, Eunice 630.00 Bryant, Thelma 652.00 Byrd, Eva C. 766.75 Bush, Lucille C. 730.00 Cox, Annie 766.75 Douglass, Edna 737.96 Elston, India 630.00 Garrett, Byrnice 655.50 O. N . Green 675.00 H eywood, Vivian 706.00 Hunter, Andrew 665.50 Johnson, Byron 631.75 K ing, Ruth 730.00 Lew is, Tessie 630.00 Morris, Susie 706.00 M oore, Dorothy 679.00 Perry, Alice 762.40 Russell, John 642.00 Scott, James D. 753.25 Torrence, Rosalie 652.00 Tyler, Daniel P. 630.00 W alker, Rose M ary 652.00 W orks, Mildred 630.00 W instead, Hom er 630.00 Present Successor Salary Clara N . Jackson $1125.00 M arion Harris 1080.00 A lice Johnson 1110.00 - 1740.00 _ _ _ 960.00 _ _ _ 1770.00 M ary Gaines 1200.00 Edna Douglass 1770.00 _ _ _ 1545.00 Courses discontinued _ _ _ 1740.00 Clarence L. Horn 1080.00 Booker T. Johnson 1270.00 M arguerite Johnson 900.00 Tessie W om ack 1185.00 Lois Tyson 1200.00 Not replaced _ _ _ 1725.00 Dorothy Estelle 1205.00 E velyn Jackson 1185.00 — — — 1385.00 Ercell Ish 1430.00 Clara N . Jackson 1125.00 _ _ 1230.00 Courses discontinued T A B L E 2 Teacher Named in Salary Shown Appellant’s Table in Appellant’s Present * Table Successor Salary Morris, Susie (N) $ 706.00 Lois Tyson $1200.00 Lane, Lillian (W ) 900.00 Ethel Bierbauer 1480.00 W harry, Rhoda W . 900.00 Jefferson, M ary P. 945.00 Robertus M cGlothlen 1420.00 Lee, Catherine 1060.00 — — — 1620.00 Teacher Nam ed in Appellant’s Table TABLE 3 Salary Shown in Appellant’s Table Successor Present Salary Campbell, H. B. (N) $ 859.77 $1830.00 Beasley, Louise (W ) 1135.00 Not replaced Hall, Henel (W ) 1348.40 Hazel Bechtode 2140.00 Leidy, Edith (W ) 1243.50 Not replaced Scott, Em m a (W ) 1350.96 -------- -------- -------- 2140.00 Mayham, Ella Neal (W ) 1128.75 Pearl M iddlebrook 2140.00 Clauson, Evelyn (W ) 1045.00 — — — 1960.00 T A B L E 4 Teacher Nam ed in A ppellant’s Table Salary Shown in Appellant’s Table Successor Little, Clarice (N) $ 835.52 ---- ---- ---- Broadhead, Carolyn (W ) 1498.30 — — — K ey, Helena (W ) 1122.00 — — — Oakley, Francille (W ) 1194.10 — — — Piercey, M ary (W ) 1122.00 — — — Stalm aker, Mildred (W ) 1506.92 — — — Stewart, Josephine (W ) 1533.00 — — — Harris, Fanita (W ) 1391.87 — — — Lane, Lillian (W ) 900.00 Ethel Bierbauer Jefferson, M ary P. (W ) 945.00 Robertus M cGlothlen H am m ett, Flora (W ) 1429.72 — — — Lee, Catherine (W ) 1060.00 — — — W harry, Rhoda (W ) 900.00 Mrs. G . B. Leake Present Salary $1830.00 1800.00 2100.00 1830.00 2100.00 1830.00 1830.00 1800.00 1480.00 1420.00 1550.00 1620.00 1245.00 TABLE 5 Teacher Nam ed in Appellant’s Table Salary Shown in Appellant’s Table Successor Present Salary Massie, S. P. (N) $1142.55 Foustine M . Peak $1830.00 Scott, James D. (N) 753.25 Evelyn Jackson 1185.00 Arm itage, Flora (W ) 2115.00 — — — 2200.14 Berry, Euleen (W ) 1634.00 — — _ 2140.00 Rivers, Ethyl (W ) 1431.87 Cristine Poindexter 2140.00 W hite, Claire T. (W ) 1808.90 — — — 1881.80 Hermann, John (W ) 992.25 M iriam Harmon 1770.00 Irvine, M abel (W ) 1658.53 — — — 2140.00 T A B L E 6 Teacher Nam ed in Appellant’s Table Salary Shown in Appellant’s Table Cox, Annie (N) $ 766.75 Gipson, J. H. (N) 979.02 Gipson, Thelma (N) 630.00 Hunter, Andrew (N) 665.50 Parr, Parr (N) 630.00 Bigbee, J. R. (W ) 2293.17 Ivy, W m . (W ) 1854.46 Moser, M . C. (W ) 1536.98 Cobb, Clare (W ) 1754.41 Davis, W ade L. (W ) 1125.00 Elliott, Clayton (W ) 1234.25 Gardner, F. M . (W ) 1260.00 Tull, N . F. (W ) 1603.55 Irby, Mrs. G uy (W ) 900.00 Riegler, M ary (W ) 1608.27 Calloway, Estelle (W ) 1741.22 Present Successor Salary — — — $1770.00 F. A . W augh 1140.00 Pinkie Parr 1560.00 Zerita Tate 900.00 — — — 1560.00 — — — 2337.17 — — — 1930.00 Elizabeth M cHenry 1720.00 — — — 1824.18 — — — 2100.00 M rs. G uy Cazort 1260.00 — — — 1545.00 Jesse W est 1800.00 Mrs. Carl Hinton 1335.00 Mrs. Ida G riffin 1515.00 Ruth Owens 1515.00 T A B L E 7 Teacher Named in Salary Shown Appellant’s Table in Appellant’s Present Table Successor Salary W ilson, J. L. (N) $1039.50 Frederick W . Carter $1450.00 Elston, India (N) 630.00 Edna Douglass 1770.00 Tillm an, Marcia (W ) 1732.34 ---- ---- ---- 2140.00 Berry, Homer (W ) 1939.81 Inez Iiartsoe 1590.00 W arner, Nita Bob (W ) 1020.75 W hiihelm ena Pattee 1260.00 Clauson, Donald (W ) 1702.77 — — — 2140.00 Teacher Nam ed in A ppellant’s Table T A B L E 8 Salary Shown in Appellant’s Table Successor Present Salary Brum field, Eunice (N) $ 630.00 M arion Harris $1080.00 Douglass, Edna (N) 737.96 — — — 1770.00 Johnson, Byron (N) 631.75 Booker T. Johnson 1270.00 Russell, John (N) 642.00 Dorothy Estelle 1250.00 Tyler, Daniel P. (N) 630.00 Ercell Ish 1430.00 W alker, Rose M ary (N) 652.00 Clara N. Jackson 1125.00 Barnes, Everett (W ) 1732.70 ---- ---- ---- 2140.00 A very, Julia M ae (W ) 900.00 Lucille Stanley 1660.00 Lescher, Vera (W ) 1148.00 Cleda Norman 1575.00 Cooke, Eleanor (W ) 900.00 ---- ---- ---- 1485.00 Bowen, E. A . (W ) 1808.49 ---- ---- ---- 1881.37 T A B L E 9 Teacher Nam ed in Salary Shown Appellant’s Table in Appellant’s Present Table Successor Salary Gravelly, Treopia (N) $ 935.63 — — — $1830.00 Stegeman, Hattie (W ) 1573.12 — — — 1830.00 Teacher Nam ed in Appellant’s Table T A B L E Salary Shown in Appellant’s Table 10 Successor Present Salary Bass, Bernice (N) $ 638.50 Clara N. Jackson $1125.00 Chisholm, A llie (W ) 980.25 Helen Collier 1605.00 Speer, D ixie D. 900.00 Helen Bladgett 1300.05 Dupree, Grace (W ) 939.75 — — — 1755.00 Britt, Bernice (W ) 945.00 Vivian Lynch 1425.00 Teacher Nam ed in Appellant’s Table T A B L E Salary Shown in A ppellant’s Table 11 Successor Present Salary Bowie, Lester (N) $ 850.00 Harriett Robinson $1350.00 King, Ruth (W ) 730.00 M arguerite Johnson 900.00 Meyer, W illiard (W ) 900.00 M ary A lice Duncan 1200.00 Duncan, M ary Alice (W ) 900.00 (Succeeded W illiard M eyer) 1200.00 Parker, Robert (W ) 945.00 David Lodet 1560.00 T A B L E 12 Teacher Nam ed in Salary Shown A ppellant’s Table in Appellant’s Table Successor Present Salary Pope, Francis (N) $ 615.00 ---- ---- ---- $1430.00 Lewis, John (N) 615.00 Em m a Lee Peyton 940.00 Johnson, Pauline (N) 615.00 — — — 920.00 W ilkerson, Capitola (N) 630.00 — — — 1275.00 Fair, M ary Nance (W ) 810.00 M ildred James 1475.00 Threat, Kathryn (W ) 810.00 Teressa Flem m ing 1545.00 Terral, M rs. Floyd (W ) 810.00 — — — 1405.00 Gardner, Mrs. Lewis (W ) 810.00 — — — 1800.00 Obersham, Bettie (V /) 810.00 — — — 1315.00 Carrigan, M ary D. (W ) 855.00 — — — 1385.00 Street, Juanita (W ) 810.00 Mrs. Jo Cooper 1080.00 Thomas, M artha* (W ) 810.00 M cCuistion, Elizabeth (W ) 810.00 Sue Shannon Brown 1335.00 Sm ooth, Raym ond M ary Dodge Hodges 1550.00 (Mrs.) (W ) 810.00 — — — 1290.00 Belford, Susan (W ) 810.00 Ruby Keener 1470.00 Crutchfield, Ann (W ) 810.00 (Sub) M rs. Francis Knod 143.33 Isgrig, Nancy Jane (W ) 810.00 (per mo.) Soard, Dorris (W ) 810.00 M rs. W . B. Hays 1250.00 *M artha Thomas was succeeded by Juanita Street; they did not teach at the same time. T A B L E 13 Teacher Named in Salary Shown Appellant’s Table in Appellant’s Table Hamilton, Elizabeth (N) $ 706.00 Jackson, Nancy (N) 665.50 Lee, Dancie (N) 665.50 Rice, Sarah (N) 645.25 Finn, Verna (W ) 933.00 Jones, Ruth (W ) 846.00 Clapp, Thelm a (W ) 987.00 Holman, Lucille (W ) 1014.18 Harper, Verna (W ) 1041.00 Hardage, Edith (W ) 960.00 Sittlington, Blanche (W ) 960.00 Wage, Georgia (W ) 1041.00 Dupree, Jeanne (W ) 960.00 Present Successor Salary — — — $1385.00 Dovie Anderson 930.00 Ettamoe Quick 910.00 — — — 1040.00 Mrs. Helen Curtis 1245.00 Ernestine Puryear 1620.00 — — — 1740.00 Lydia Ann Griffith 1500.00 — — — 1800.00 Gladys Schm uck 1400.00 M argaret Deal 1475.00 — — — 1830.00 Em m a Jean Harris 1830.00 T A B L E 14 Teacher Named in Salary Shown Appellant’s Table in Appellant’s Present Table Successor Salary Patterson, A lva (N) $ 733.00 __ __ __ $1030.00 Touchstone, Bertha (N) 736.38 — — — 1020.00 W aters, Elnora (N) 735.29 — — — 1040.00 Mason, Byrnice (W ) 1436.15 — — — 1830.00 Perimen, Bess (W ) 1045.28 — — — 1830.00 Reynolds, A verell (W ) 1043.00 Mrs. A . S. J. Clarke 1315.00 K inlay, Francis (W ) 1047.46 — — — 1800.00 W illard, Beryl (W ) 1041.61 Sarah Ellen Robinson 1290.00 Shelton, M ary H. (W ) 982.28 Catherine Bost 1200.00 Reeves, Jessie (W ) 1084.00 ---- ---- ---- 1800.00 Apple, Lorraine (W ) 1108.58 — — — 1830.00 Teacher Nam ed in Appellant’s Table TA B L E Salary Shown in Appellant’s Table : is Successor Present Salary Davis, Corselia (N) $ 884.71 ---- ---- ---- $1040.00 Patillo, Em m a (N) 1012.77 A lm a Minton 1200.00 Samson, Gertrure (N) 764.81 Verna Isum 915.00 Roundtree, Thesa (N) 764.81 ---- ---- ---- 1770.00 Gilliam , Cora (N) 825.58 Annie T. Stovall 1020.00 Chandler, Blanche (W ) 1603.90 ---- ---- ---- 1830.00 Jordan, Pauline (W ) 1429.72 ---- ---- ---- 1830.00 W alker, M arqurite (W ) 1634.91 — — — 1830.00 Junkin, Blanche (W ) 1276.35 ---- ---- ---- 2060.00 Autry, Ester (W ) 1391.98 — — — 1800.00 Schriver, M ary (W ) 1354.08 — — — 1770.00 Pearson, Alice (W ) 1536.96 ---- ---- ---- 1629.00 Hagler, Grace (W ) 1418.84 — — — 1550.00 Renfrow, Mina (W ) 1634.91 — — — 1830.00 T A B L E 16 Teacher Nam ed in Appellant’s Table Salary Shown in Appellant’s Table Burns, Cleo (N) $ 625.00 Bush, M arjorie (N) 615.00 Burton, Hazel (N) 665.65 Green, Thelma (N) 630.00 D ander, Alice (N) 645.25 W ilson, Rosa (N) 625.00 Lee, Elnora (N) 615.00 Pace, Josephine (W ) 879.00 Arance, Leah (W ) 879.50 James, M ildred (W ) 906.00 Jacobs, Louise (W ) 825.00 Frost, N ell (W ) 825.00 Smith, W illie (W ) 879.00 Bond, Alice (W ) 810.00 Grogan, Stella (W ) 810.00 W hitley, W innie (W ) 879.00 Present Successor Salary Rhoda Doss $1040.00 Rositia Settle 900.00 Cristine Johnson 1000.00 Lillian Buckley 900.00 — — — 1000.00 M ollie Vault 900.00 Lucille Parker 900.00 — — — 1475.00 — — — 1550.00 — — — 1475.00 — — — 1440.00 — — — 1475.00 — — — 1475.00 — — — 1300.00 Mrs. E. L . LeClair 1550.00 — — — 1550.00 T A B L E 17 Teacher Named in Salary Shown Appellant’s Table in Appellant’s Table Lee, Bertha (N) $ 729.02 Rutherford, Alice (N) 678.10 Abner, Irene C. (N) 739.41 Nichols, J. C. (N) 678.10 Collier, Bennie (N) 667.79 Conway, Essie (N) 719.50 Jordan, Sallie (N) 678.10 W hite, A lm eta (N) 739.41 Cobb, Marion (W ) 977.65 Farmer, M argaret (W ) 1198.41 Grayson, M ary Lee (W ) 1081.84 Owen, Jew ell (W ) 1120.28 Brookfield, Cora (W ) 1276.35 Bullington, Inez (W ) 1391.95 Frankel, Caroline (W ) 1354.08 Goodwin, Ernestine (W ) 1198.41 Park, M ildred (W ) 1238.22 Toland, Brooks (W ) 977.40 Lem on, M rs. C. N. (W ) 1006.34 W itsell, Cherry (W ) 949.85 M urphy, Elizabeth (W ) 1288.34 W oodw ard, Marie (W ) 1120.26 Pitm an, M arjorie (W ) 1198.27 Tunnah, Helen (W) 1120.26 $1040.00 1040.00 1040.00 960.00 1040.00 1040.00 1040.00 1040.00 1550.00 1550.00 1550.00 1550.00 1550.00 1550.00 1550.00 1650.00 1550.00 1550.00 1550.00 1550.00 1470.00 1550.00 1550.00 1550.00 Present Successor Salary Viola Danley Anita W illiam s M arjorie Lefever T A B L E 13 Teacher Named in Salary Shown Appellant’s Table in Appellant’s Table Dickey, Ella (N) $1012.77 Bruce, Cornelia (N) 1195.49 Murphy, Vera (N) 1012.77 Ingram, Emma (N) 1012.77 Littlejohn, C. B. (N) 1189.64 Anthony, B. E. D. (N) 833.52 Curry, Norena (N) 782.04 Routen, Estelle (N) 772.37 Lewis, Blanche (N) 739.41 Cline, Fannie (W) 1455.41 Power, Maggie (W) 1536.99 Dill, Gertrude (W) 1316.09 Hairston, Maude (W) 1380.15 Jones, Nell (W) 1402.89 Oliver, Effie (W) 1276.35 Bruner, Nell (W) 1276.35 Davis, Katie M. (W) 1286.32 Earl, Annie (W) 1433.78 McDaniel, Emma K. (W) 1371.60 Middleton, Opal (W) 1611.34 Dunnavant, Zoe (W) 1278.42 Lipscomb, Vanda (W) 1377.04 Brown, Amelia (W) 1288.34 McKinney, Grace (W) 1276.35 Martin, Claytie (W) 1316.10 — — — $1105.34 — — — 1273.63 — — — 1105.34 — — — 1105.34 M aleva Cox 900.00 — — — 1040.00 Ida Hicks 930.00 — — — 1040.00 — — — 1572.28 — — — 1629.67 — — — 1550.00 — — — 1650.00 — — — 1550.00 — — — 1550.00 — — — 1550.00 — — — 1550.00 — — — 1550.00 — — — 1550.00 — — — 1692.64 — — — 1550.00 — — — 1550.00 — — — 1800.00 — — — 1550.00 — — — 1650.00 Present Successor Salary ■ IN THE United States Ctrratt Ctart of Appeals F oe t h e E i g h t h C i r c u i t Civil Action No. 12,887 Susie M orris, for herself and others similarly situated, F rances B. H ibbler, Intervener, Appellant, v. R obert M . W illiam s , Chairman; M urray O. R eed, Secre tary; M rs. W . P. M cD erm ott ; M rs. W . F. R a w lin g s ; D r. R. M . Blakely and E. F. Jennings, Constituting the Board of Directors of the Little Rock Special School District and R ussell T. S cobee, Superintendent of Schools, Appellees. a p p e a l p r o m t h e d i s t r i c t c o u r t o f t h e u n i t e d s t a t e s FOR THE EASTERN DISTRICT OF ARKANSAS. - 1 1 1 .............1........................... . . ' L l ". ---------- -------------------------------1KSV REPLY BRIEF FOR APPELLANTS. A9(i------------ii 11 ■■■■in i ........................ . ile * Edward R. D udley, New York, New York, M yles A . H ibbler, Little Rock, Arkansas, Of Counsel. 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. I N D E X PAGE Preliminary Statement _____________________________ 1 I. Proof Required in the Case_____________________ 2 II. The District Court Erred in Its Finding That No Discriminatory Salary Schedule Existed. _______ 3 III. The Trial Court Erred in Finding That No Dis criminatory Policy Was Followed in the Fixing of Salaries ________________________ 8 Differences in Salaries_________________ 10 General Salary Adjustment in 1940__________ 11 Bonus Payment _______________________ 12 IV. Appellees’ Tables and Matter Be Hors the Record 13 Conclusion _________________________________________ 15 CITATIONS. Cases: Mills v. Board of Education, 30 F. Supp. 245 (1940) .... 4 Roles v. School Board of City of Newport News, Civil Action No. 6 (1943), U. S. District Court for Eastern District of Virginia, unreported___________________ 4 Smith v. Allwright, 321 U. S. 649, 88 L. Ed. 987 (1944) 12 Snowden v. Hughes, 321 U. S. 1, 88 L. Ed. 497 (1944).... 12 11 PAGE Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 298, 31 S. Ct. 279, 55 L. Ed. 310 (1910) ___________________________ 14 Thomas v. Hibbitts, 46 F. Supp. 368 (1942)___________ 4 United States v. Trans-Missouri Freight Assoc., 166 U. S. 290, 17 S. Ct. 540, 41 L. Ed. 1007 (1896)______ 14 Yarnell v. Hillsborough Packing Co., 70 F. (2d) 435 (1934) _____________________________________________ 14 Miscellaneous: Educational Directory (U. S. Office of Education [1942]) ____________________________________________ 10 IN THE Inttefc Ub Ctrruit Court of Appralo F ob the E ighth Circuit Civil Action No. 12,887 S usie M orris, for herself and others similarly situated, F rances B. H ibbler, Intervener, Appellants, v. R obert M. W illiams, Chairman; M urray 0 . R eed, Secre tary; M rs. W. P. M cD ermott; M rs. W. F. Raw lings ; Dr. R. M. B lakely and E. F. J ennings, Constituting the Board of Directors of the Little Rock Special School District and R ussell T. S cobee, Superintendent of Schools, Appellees. REPLY BRIEF FOR APPELLANTS. Preliminary Statement. Much of the material in the brief for appellees is irrele vant and there is a sharp dispute as to interpretation of evidence produced at the trial. No effort is made herein to answer all of the material set forth in brief for appellees. Most of the argument in the original brief for appellants remains unanswered. This reply brief is directed solely at material in appellees’ brief which was not raised in appel lants’ original brief. 2 I. Proof Required in the Case. The appellees deny any visible connection between ap pellants’ claim of discrimination and those cases involving exclusion of Negroes from jury service. The analogy here is a simple one. There is no statute setting up one minimum salary scale for white teachers in the system and one mini mum salary scale for colored teachers in the system, nor do appellees admit that they have adopted such a schedule. If these were the facts the question as to the constitution ality of such state action would present no difficulties. In the jury cases few statutes excluding Negroes from jury service were enacted subsequent to the passage of the Fourteenth Amendment and practically all of the cases of discrimination on this point revolved around the action of judicial or administrative officials who denied that they intentionally discriminated against Negroes in the selection of jurors. The difficulty of proving discrimination became apparent. It was here that the United States Supreme Court recognized the difficulty of proof and adopted rules which created the presumption of exclusion of Negroes from jury service. In both instances the Courts were faced with the propo sition that state officials denied having violated the United States Constitution. In the jury cases a showing that over a period of years there were no Negroes accepted for jury service was considered proof of a policy of discrimination on the basis of race. In the present case the record clearly shows that over a period of years all Negro teachers have received less salary than white teachers of equivalent quali fications and experience and performing the same duties. Appellees’ contention that there was no written salary schedule is no answer to the presumption created that dis crimination did exist by virtue of all Negro teachers being paid less salary than white teachers for performing substan- 3 tially the same duties. Nor is the answer of Superintendent Scobee that in his opinion no Negro teachers were worth more than they were being paid a sufficient rebuttal to the appellants’ case. It is this type of grouping by race which is prohibited by the Fourteenth Amendment. In fact, it is no more nor less than an example of arbitrary treatment designed to classify one group in a category wholly unequal to another solely on account of race. The Fourteenth Amendment forbids such discrimination. II. The District Court Erred in Its Finding That No Discriminatory Salary Schedule Existed. None of the appellees were able to satisfactorily explain the provision of the minutes of the Board for January 31, 1938, that the “ schedule for new teachers shall be: ele mentary $810, junior high $910, senior high $945“ (R. 576). Although this provision was adopted prior to the appoint ment of Superintendent Scobee, and although he denied that he was directed by anyone to follow the recommendations, he nevertheless admitted that all of the white teachers ap pointed by him were paid salaries in excess of the $810 minimum, while at the same time all Negro teachers new to the system were employed at either $615 or 630. The testimony by the appellees is that: (1) there is no written salary schedule, and (2) that all Negro teachers new to the system are paid a salary below the minimum salary paid to all white teachers new to the system. It is also the testimony of each of the appellees that this has been true as long as they have been in their present positions as Superintendent or members of the Board of Directors of the Little Rock Special School District. The theory of appellees is that there can be no racial discrimination in the absence of a written salary schedule. 4 In doing this appellees ignore the true basis of the decisions in the cases cited as well as their own testimony at the hear ing of this case. In the cases of Mills v. Board of Educationf Thomas v. Hihhitts,* 2 3 and Roles v. School Board 3 relief was granted upon a showing that in the actual payment of sal aries the Superintendent and School Board fixed salaries for Negroes at a lower amount than for white teachers. In the case of Mills v. Board of Education, supra, there was a statutory minimum salary schedule providing less salary for Negroes than for white teachers. However, the county board had a salary schedule higher than the state schedule and did not follow either of these schedules, but paid all of its teachers salaries higher than provided in either of the schedules. Judge Chesntjt considered all of the testimony and reached the conclusion that in the payment of salaries to teachers the defendants had made a distinction because of race or color and their action was therefore unconstitutional. In the Roles case, supra, the salary schedule made no men tion of race or color. The theory of appellees that dis- criminiation because of race in the payment of teachers’ salaries can be shown only by the production of a written salary schedule is fallacious. In adopting this theory appellees at pages 34-46 of their brief cite testimony of many witnesses directed to the proposition that there was no written schedule for white and colored teachers in this case. Appellees, however, fail to point out that these same witnesses, although denying the existence of a written schedule as such do testify that in fact the policy of the Superintendent was to pay all colored teachers new to the system the minimum of $615-$630., while paying all white teachers new to the system the minimum of $810. Whether or not a written schedule as such was adopted and physically present is totally unimportant in view of the actual salaries tendered these teachers. *30 F. Supp. 245 (1940). 2 46 F. Supp. 368 (1942). 3 Brief for appellants, pp. 74-77. 5 Appellees on page 32 of their brief in discussing other cases involving the payment of less salary to Negro teach ers because of race or color make the following admission: “ One salary range was applied to white teachers and an other and lower range was applied to Negro teachers. It would be difficult to imagine a situation which would furnish a more clear cut example of racial discrimination than a case in which such a schedule wTas used.” Each of the appellees admitted that in the actual pay ment of salaries to public school teachers in Little Rock, Ai’kansas, “ one salary range was applied to white teachers, and another and lower range was applied to Negro teachers’ ’ : Mr. Scobee: “ Q. And isn’t it a fact Negro teachers you have hired for the elementary schools have all been hired at the figure of $615.00. A. Practically all. Q. Practically all? A. Yes. Q. And you remember yesterday the minutes of the School Board of 1937, the statement that the minimum salary shall be $810.00. Do you remember reading that yesterday? A. I remember reading the minutes. I am not able to identify the exact date. Q. And is it not true that since you have been here that all white teachers who are new to the system in the elementary schools have been paid not less than $810.00? A. That’s true” (R. 316). Mrs. McDermott: “ Q. And isn’t it true, Mrs. McDermott, that since May, 1938, or rather June, 1938, it has been the policy to pay white teachers a minimum of $810.00? A. I think so. Q. And it has been the policy to pay Negro teachers less than that minimum? A. Yes, sir. Q. And that has been the policy since 1938? A. I think so. Q. That is the policy as late as that last Board meeting? A. I think so” (R. 68-69). 6 Mrs. Rawlings: “ Q. And during that time on the Board, is it not true that as to new teachers to the system you paid white teachers new to the system more than Negro teachers new to the system? A. No, not in all cases. It depended on the individual. Q. Well, since 1938, is it not true that all of the Negro teachers employed have ranged between $615.00 and $630.00? A. Yes, sir. Q. And is it not true that during that same time no white teachers have been employed at less than $810.00? A. I could not say, but I think you are correct. Q. Somewhere from $800.00 up, at least? A. Yes, sir” (R. 84). Robert M. Williams: “ Q. Well, in passing upon the recommendations of the Superintendent, you have had occasion to notice the Negro teachers began at the salary, in the elementary schools, of $615.00 and $630.00, haven’t you? A. I don’t know as I ever noticed it before I got here in this courtroom. Q. You have noticed it since you come into the courtroom? A. Oh, yes. Q. And you also noticed that the salary of teachers in the Negro High School began at $630.00? A. Yes, from the testimony here. Q. You also noticed the white teachers in the white schools began at a salary of $810.00? A. Yes. Q. And in the Little Rock Senior High School at $900? A. I haven’t got that in mind. Q. That has been the policy of the Board ever since you have been a member of the Board? A. I would say so, yes” (R. 359). Murray O. Reed: “ Q. Do you know that all the Negro teachers are paid between $615.00 and $630.00, with one exception $675.00? Do you remember that? A. All between $615.00 and $630.00 you say? Q. Yes, sir. A. No, I didn’t know that. Q. Is it clear in your mind that Negro teachers new to the system are paid less than white teachers new to the system? A. I think most of them are” (R. 99). “ Q. And yet practically all of the white teachers get over $810.00 to $900.00 a 7 year. How can and how is it that they all fall in the same category? A. 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 wtih teachers, white teachers and colored. He finds that we have a certain amount of money, and the budget is so much, and in his deal ing with teachers he finds he has to pay a certain minimum to some white teachers qualified to teach, a teacher that would suit in 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 (fol. 208) $800.00 to $810.00 to $830.00, whatever it may be he has to pay that in order to pay that white teacher the minimum amount, qualified to do that work. Now, in his experience with colored teachers, he finds he has to pay a cer tain minimum amount to get a colored teacher quali fied to do the work. He finds that about $630.00, whatever it may be” (R. 120). Dr. B. M. Blakely: “ Q. Do they not run in the average between $615.00 and $630.00 for Negro teachers that have been appointed since you were on the Board? A. Yes. Q. And the white teachers run above $810? A. Run from $810.00 up? Q. Yes, sir. A. Yes. Q. Can you give the reason for that? A. I thought that was their qualifications, and we decided to pay that salary. Q. Did you ever check their qualifications, of any of these teachers? A. No, that wasn’t one of my func tions. I would not put myself as being in a position of knowing the qualifications of a teacher. Q. As a matter of fact, you don’t know how it happens? A. No, except qualifications, that is my understanding about the salary schedule, the salary— ” (R. 75). E. F. Jennings: “ Q. You do not know of any, do you, of any Negro teacher (fol. 47) new to the system that has been given as much as the least paid white teacher? A. No, I don’t ” (R. 27). 8 It is therefore clear that “ one salary range was applied to white teachers and another and lower range was applied to Negro teachers” .4 III. The Trial Court Erred in Finding That No Dis criminatory Policy Was Followed in the Fixing of Salaries. The appellees in their brief at page 43 in referring to sections of appellants ’ original brief quoting excerpts from the minutes of the Board of Education from 1926 to 1929, add that “ It is difficult to see how the Board’s actions at a time when only one of these defendants had a voice in its affairs and nine years before the plaintiff was employed can have much bearing even on policy” . The point is that many of the teachers employed by the appellees at the time this case was tried had been employed since 1926 and some prior thereto. Superintendent Scobee testified that although there had been a few adjustments since he had been Superin tendent, in the main salaries of older teachers remained the same as when he was employed (B. 183). He did not know what basis was used for the fixing of salaries prior to his employment. He testified further: “ 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” (B. 183). Later in his testimony on being questioned concerning individual teachers, Mr. Scobee testified: “ Q. Can you deny that these salaries are set up on race? A. So far as I am concerned they are not set up on race. Q. You don’t know how these figures were arrived at? A. I do not. Q. All you’re doing 4 This quotation appears in appellees’ brief in commenting upon similar cases in other jurisdictions (appellees’ brief, p. 32). 9 is carrying on as you found it? A. So far as the total of money spent, I am trying to do that. Q. You made none or very few changes? A. Very few. Q. You don’t know any place where you raised one.up to the white level? A. I don’t recail any” (R. 189). One of the Negro teachers mentioned by the appellees in the group who were employed at $90 per month in 1926 is Miss Gwendolyn McConico (R. 515). The interesting thing about Miss McConico is that at the present time, after fifteen years of service in the Little Rock School System, she is only receiving $842.25 per year (R. 777). It should also be pointed out that after sixteen years of service she is receiving less salary than white teachers new to the system with no experience whatsoever. Although she re ceived a rating of “ 3 ” (R. 777) she receives less salary than any white teacher in similar circumstances, such as Dixie D. Speer, who while employed in the white high school and rated as “ 3” , was paid $900 with no experience in Little Rock or any place else and Mrs. Guy Irby with an AB de gree and no experience teaching in the junior high school as a substitute teacher was paid $900 a year, yet rated as “ 3” . The example of Miss McConico is typical of the type of discrimination being practiced against Negro teachers in Little Rock, Arkansas, as a result of a combination of circumstances pointed out in appellants’ original brief. Appellees in their brief commenting upon the salary cuts 1932-1933, reached the conclusion that Negro teachers were not discriminated against because it was provided that white and colored janitors received the same salary. Although the salary cuts immediately after 1929 were made on a percentage basis as pointed out by appellees in their brief, the discrimination against Negroes is apparent by the fact that the so-called salary restorations were made on a basis of race or color. All white teachers were placed in one group and given increases in salary larger than were 1 0 given Negro teachers all of whom were placed in another group. The provisions of the minutes of the appellees on the question of salary cuts and restorations are fully set out in appellants’ original brief (pp. 8-11). •> Differences in Salaries. There is a sharp conflict in the testimony as to the teach ing ability of Susie Morris, original plaintiff in the case. The person best qualified to judge the teaching ability of Mrs. Morris was her principal who testified in detail as to his opinion as to Mrs. Morris’ ability as a teacher (R. 164-165). Mr. Scobee’s appraisal of Mrs. Morris’ ability was based on hut one ten-minute visit to her class (R. 133). Her other rating was by Mr. Hamilton, who was a part-time supervisor of the Dunbar High School. It is obvious from the record that Mr. Lewis is better qualified to rate his teachers than Mr. Hamilton. In the first place, Mr. Lewis has several degrees from accredited colleges and many years of experience as an administrator of both high schools and colleges (R. 162). Mr. Hamilton, on the other hand, is a graduate of Wilmington College in Ohio, which is only accredited by the American Association of Teachers’ Col leges.5 If there were any doubt as to Mrs. Morris’ ability as a teacher, it is immediately dispelled by the undisputed testi mony that during the summer prior to the trial of this case, she attended the University of Chicago as a graduate student and one of the subjects involved the use of methods of teaching English exactly as taught by her in the Little Rock School System. Her methods and outlines were given for the purposes of criticism by other students and faculty. At the conclusion of this course Mrs. Morris attained the grade of “ A ” (the highest possible grade which could have been obtained) (R. 506). 5 Educational Directory, published by the United States Office of Education (1942). 11 Appellees throughout the brief repeatedly emphasize the statement that a majority of the Negro teachers are gradu ates of unaccredited colleges. In doing this they ignore the fact that of the 38 teachers, including the principal in Dun bar High School 23 have Bachelor degrees from accredited colleges and 5 have Master degrees from accredited colleges (R. 653).6 No college appears beside the name of Bernice Bass, who has a Bachelor degree and her name was not counted in the figures above.7 General Salary Adjustment in 1940. In the salary adjustment of 1940 appellees make much of the fact that in the adjustment of salaries of two white teachers, Mr. Axtell and Miss Litzke, no accurate basis was used. Without going through the entire list of salaries, certain facts should be pointed out. In the first place there is apparently no evidence of rating being used as a basis for the adjustment. The only items appearing on the list with the exception of the salaries are training and experi ence. With the exception of the isolated case mentioned in appellees’ brief the adjustment for white teachers goes along the line of experience and training and the Negro salary adjustments go along the line of training and ex perience with the additional factor that despite the factors of training and experience all of the Negro salaries are lower in each bracket. For example, the highest salary of any Negro teacher in the Dunbar High and Junior College, after the adjustment was $756.75 for a teacher with an AB degree and 30 years of experience as compared with the lowest salary of any teacher in the white senior or junior high schools which was $924.75 for a teacher with one year’s experience in Little Rock and none elsewhere. As 6 The list of accredited colleges appears in Educational Directory published by United States Office of Education (1942). 7 In addition there is one teacher with four years, one with three, one with two and one with two and a half years’ training in accredited colleges. 1 2 a matter of fact the so-called salary adjustment shows that the highest paid Negro teacher received before and after the adjustment less salary than the lowest paid white teacher (R. 590-594). Bonus Payment. The only defense appellees have to the question of the discriminatory bonus payments of 1941 and 1942 is that “ the testimony clearly shows, however, that this feature of the plan devised by these teachers was not understood by the board members, who thought that proportionate equality was being achieved” (appellees’ brief, p. 59). It should be pointed out that the committee that worked out the plan was composed solely of white teachers (R. 89) and that Superintendent Scobee testified he did not even consider the question of putting some Negro teachers on the committee (R. 197). The plea of innocence of any deliberate discrim ination is nullified by the testimony of Superintendent Scobee, who testified that after the 1941 distribution of the bonus Negro teachers protested to him against the inequal ity in the method of distribution, yet, despite this plea the 1942 payment was subsequently made on the same basis as the 1941 payment (R. 197). Appellees relying upon the case of Snowden v. Hughes, 321 U. S. 1, take the position that a scheme prepared by a group of teachers and adopted by the board “ under a mistake of fact” is not state action within the meaning of the Fourteenth Amendment. This argument completely ignores, not only the factual material in the record, but likewise ignores many Supreme Court decisions as to state action. There can no longer be any doubt as to what constitutes “ state action” since the case of Smith v. Allwright, 321 U. S. 649 (1944). 13 IV. Appellees’ Tables and Matter De Hors the Record. The appellees in their brief set out tables of salaries purporting to be the salaries of some of the teachers in the public school system of Little Rock showing changes in the salaries since the trial of this case. This material de hors the record is not properly before this Court and should not be considered. This matter is presented without an oppor tunity of confrontation of witnesses or cross examination by appellants. The evil inherent in such a practice is apparent when we consider a portion of the salaries are produced without explaining, for example, the reasons why many of the Negro teachers are out of the system and without explaining that the reason appellant, Susie Morris, is no longer employed is because of the fact that ap pellees refused to renew her contract after the trial of this case. No explanation is given for the other Negro teachers who are no longer teaching so that appellees can now make the statement in their brief that “ tables 3, 4 and 5 are omitted because the only Negroes included are no longer employed by the District” . Nor does the informa tion de hors the record presented by appellees show that Mr. Hamilton is no longer employed as a “ supervisor” but is now relegated to the position “ Census, Attendance and Health Officer” . The substantial increase in the salary of Mrs. Hibbler, appellant-intervener, and other Negro teachers, according to the tables in appellees’ brief, merely substantiate the position taken by appellants that there has been a policy of discrimination because of race in the fixing of salaries of teachers in Little Rock. The issues in this case are not moot. Even if appellees had produced admissible evidence of a change of circum stances since the trial of the case, the issues would not be moot. 14 In the United States v. Trans-Missouri Freight Associ ation, 166 U. S. 290, 308,17 S. Ct. 540, 41 L. Ed. 1007 (1896), there was an action by the United States to enjoin the operation of an agreement among certain railroads as in violation of the Sherman Act. The lower Court dismissed the complaint and the government appealed. The defen dants filed a motion in the Supreme Court for dismissal on the ground that the Association had been dissolved. The motion was denied by Mr. Justice P eckham in an opinion for the Supreme Court. In Southern Pacific Terminal Company v. Interstate Commerce Commission, 219 U. S. 498; 31 S. Ct. 279, 55 L. Ed. 310 (1910), the Southern Pacific Terminal brought an action to enjoin the enforcement of an I. C. C. order. The order was limited to two years and the time expired while the case was being appealed. On the question as to whether or not the case was moot, Mr. Justice McK enna, speaking for the U. S. Supreme Court, stated: “ In the case at bar the order of the Commission may to some extent (the exact extent it is unnecessary to define) be the basis of further proceedings. But there is a broader consideration. The question in volved in the orders of the Interstate Commerce Commission are usually continuing (as are mani festly those in the case at bar), and these considera tions ought not to be, as they might be, defeated, by short-term orders, capable of repetition, yet evading review, and at one time the government, and at an other time the carriers, have their rights determined by the Commission without a chance of redress” (219 U. S. at p. 515). In both of the above cases the question arose after trial and pending appeal. There is, however, another case direct ly in point on this question. In Yarnell v. Hillsborough Packing Company, 70 F. (2d) 435 (1934), appellees were two Florida citrus fruit corpora tions. Appellants composed the Florida Control Committee selected pursuant to AAA. Appellants, having been served 15 with notice of the application for a temporary injunction, on the day before the bill urns filed revoked the prorate orders of which complaint was made. The injunction was issued. The Circuit Court of Appeals for the Fifth Circuit held that: “ * * * As the control committee did not admit the illegality of the orders they revoked on the eve of the hearing, nor disclaim an intention to issue similar orders in the immediate future, the case is not moot # # # 5 ) The law in the federal courts on this matter seems clear. The instant case is even weaker than the Yarnell case {supra) because in the instant case there is no actual proof of the discontinuance of the discriminatory policy. Conclusion. This case marks an important step in the line of cases which have had for their purpose the removal of the prac tice, custom and usage of paying Negro teachers less salary than white teachers because of their race. W herefore, it is respectfully submitted that the judg ment of the District Court should be reversed. Respectfully submitted, J. R. B ooker, Little Rock, Arkansas, T hurgood 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. H ibbler, Little Rock, Arkansas, Of Counsel. ■ ■ f L awyers P ress, I nc., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300 f 1 United States Circuit Court of Appeals, EIGHTH CIRCUIT. SUSIE MORRIS, for Herself and Others - Similarly Situated, & ■ ' and FRANCES HIBBLER, Intervener, Appellants, against , No. 12,887. ROBERT M. WILLIAMS, Chairman, et al., Appellees. „ BRIEF OF AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE. LUTHER ELY SMITH, Counsel, American Civil Liberties Union, Amicus Curiae. VICTOR B. HARRIS, Of the Missouri Bar, NANETTE DEMBITZ, Of the New York Bar, Of Counsel. St. L ouis Law Printing Co., 415 North Eighth Street. CE ntral 4477. MAY ~ 3 194L E . 33, K Q O X ) INDEX. Page Statement of the case ....................................................... 1 Interest of tlie American Civil Liberties Union........ 2 Points to be argued .............................................................. 3 Argument .......................................................................... 6 I. Unconstitutionality of differentiation in sal aries on the ground of race or color................ 6 II. The appellants’ prima facie case......................... 7 III. Appellees’ attempted rebuttal of appellants’ prima facie case ....................... 9 IV. The District Court’s Judgment must be re versed as clearly erroneous...................................... 13 V. Even assuming that the District Court’s error was not of such a degree that its findings may be deemed “ clearly erroneous,” the findings are invalid under the more rigid standard of review applicable to findings of the type here involved ................................. .............................. 14 Conclusion .......................................................................... 17 Cases Cited. Alston v. School Board of City of Norfolk, 112 F. (2d) 992, 995-996 (C. C. A. 4th, 1940), certiorari denied, 311 U. S. 693 ................................................................. 3,6 Baumgartner v. United States, 322 U. S. 665, 670-671.4,15 Biancbi v. Vere, 17 F. (2d) 22 (C. C. A., 1st, 1927), certiorari denied, 274 U. S. 752................................... 4,15 Exmoor Country Club v. United States, 49 F. (2d) 961 (C. C. A. 7th, 1941)............................................... 5,15 Hill v. Texas, 316 U. S. 401......................... 3,4,5,10,14,16 11 Illinois Bell Telephone Co. v. Slattery, 102 F. (2d) 58 (C. C. A., 7th, 1939), certiorari denied, 307 U. S. 648 ....................................................................................4,15 Kuhn v. Princess Lida etc., 119 F. (2d) 704 (C. C. A., 3rd, 1941) .........................................................................4,15 Martin v. Struthers, 319 LT. S. 141, 144......................... 4,14 McDaniel v. Board, 39 F. Supp. 638, 641 (N. D. Fla., Pensacola Div., 1941) ..................................................4,14 Mills v. Board of Education et al., 30 F. Supp. 245 ..............................................................3,4,5,8,12,14,16 Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 349, 350 ............................................................................3 ,4 ,6 ,14 Mitchell v. United States, 313 U. S. 80......................... 4,14 Nixon v. Condon, 286 U. S. 73, 88..................................... 5 Norris v. Alabama, 294 U. S. 591...........................3,8,10,12 Oxley v. Sweetland, 94 F. (2d) 33, 41 (C. C. A. 4th, 1938) ....................................... .........................................3,13 Pierre v. Louisiana, 306 U. S. 354........................... 3,4,8,14 Roles v. School Board of the City .of Newport News, Civil Action No. 6 (1943), U. S. Dist. Ct., E. D. Ya., unreported, printed in Appendix C to Appellants’ Brief ..................................... ...............................3, 4, 5, 7,14 Schneider v. State, 308 U. S. 147, 161........................... 4,14 Smith v. Texas, 311 U. S. 128................................. 4, 5,14,16 Thomas v. Collins, 65 Sup. Ct. 315, 322-323....................4,14 United States v. Carolene Products, 304 U. S. 144, 152, note 4 .............................................................................. 4,14 United States v. Mammoth Oil Co., 14 F. (2d) 705 (C. C. A., 8th, 1926), affirmed 275 LT. S. 13........................4,15 West Virginia Board of Education v. Barnette, 319 U. S. 624, 639 ...................................................................4,14 Wong Wai v. Williamson, 103 Fed. 1 (N. D. Cal., 1900) ................................................................................. 4,14 Yick Wo v. Hopkins, 118 U. S. 356....................................4,14 Yu Cong Eng v. Trinidad, 271 U. S. 500........................4,14 United States Circuit Court ot Appeals, EIGHTH CIRCUIT. SUSIE MORRIS, for Herself and Others ' Similarly Situated, and FRANCES HIBBLER, Intervener, Appellants, against > No. 12,887. ROBERT M. WILLIAMS, Chairman, et al., Appellees. ' BRIEF OF AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE. STATEMENT OF THE CASE. The facts with respect to this litigation and with re spect to the payment of teachers’ salaries by the appellee school authorities of Little Rock, Arkansas, which are fully stated in appellant’s brief (pp. 1-11), will not be here repeated. The issue in this case is whether the appellees have maintained a general custom and policy of discrim inating on the basis of race or color against Negro teach ers in the payment of salaries to white and Negro teach ers in the Little Rock public schools. INTEREST OF THE AMERICAN CIVIL LIBERTIES UNION. The American Civil Liberties Union is a nation-wide organization. It holds, as a basic tenet, that judicial vigilance in regard to the effectuation of the constitutional principle of equal protection is of paramount importance to our common welfare. Such vigilance is especially nec essary when governmental discrimination is veiled in a relatively subtle manner instead of expressed blatantly. In the former case, as well as the latter, toleration of the discrimination creates a dangerous gap between constitu tional pronouncement and actual practice, and results in the gradual erosion of the basic principle. If the prin ciple of equality is weakened with respect to any group, it is weakened for all groups. The right to freedom from discrimination of the type here in issue—governmental discrimination in the pay ment of salaries—is a highly significant aspect of the constitutional right to equal governmental treatment; for the state must not be permitted to use its power to place or keep any group of its citizens in a condition of eco nomic inferiority to any other group. With the present extent of government activity as an employer and in the field of economic regulation and enterprise, it is of par ticular importance that agencies of the Government he prevented from creating favored and disfavored groups or classes. In respect of Negro teachers, the group in volved in the case at bar, discriminatory treatment is important not only for the foregoing reasons; but also because of its effect on the educational opportunities af forded to Negro pupils when, as in the instant case, they are segregated in schools taught by Negro teachers. Un equal treatment of white and Negro teachers tends to discourage Negroes from entering the teaching profession and from striving for professional improvement, thus lowering the calibre of instruction available to Negro pupils. .__2 — — 3 — POINTS TO BE ARGUED. I. Unconstitutionality of differentiation in salaries on the ground of race or color. Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 349, 350; Alston v. School Board of City of Norfolk, 112 F. (2d) 992, 995-996 (C. C. A. 4th, 1940), certiorari denied, 311 IT. S. 693. II. The appellants’ prima facie case. Roles v. School Board of the City of Newport News, Civil Action No. 6 (1943), U. S. Dist. Ct., E. D. Va., unreported, printed in Appendix C to Ap pellants’ Brief; Mills v. Board of Education et al., 30 F. Supp. 245; Norris v. Alabama, 294 U. S. 591; Pierre v. Louisiana, 306 U. S. 354. III. Appellees’ attempted rebuttal of appellant’s prima facie case. Norris v. Alabama, 294 U. S. 591; Hill v. Texas, 316 U. S. 401; Roles v. School Board of the City of Newport News, supra; Norris v. Alabama, 294 U. S. 587, 593. IV. The District Court’s judgment must be reversed as clearly erroneous. Oxley v. Sweetland, 94 F. (2d) 33, 41 (C. C. A. 4th, i938); — 4 — Schneider v. State, 308 U. S. 1947, 161; Thomas v. Collins, 65 Sup. Ct. 315, 322-323; West Virginia Board of Education v. Barnette, 319 U. S. 624, 639; Martin v. Struthers, 319 U. S. 141, 1944; United States v. Carolene Products, 304 U. S. 144, 152, note 4; Mitchell v. United States, 313 U. S. 80; Missouri ex rel. Gaines v. Canada, 305 U. S. 337; McDaniel v. Board, 39 F. Supp. 638, 641 (N. D. Fla., Pensacola Div., 1941); Hill v. Texas, 316 U. S. 401; Smith v. Texas, 311 U. S. 128; Pierre v. Louisiana, 306 U. S. 354; Yu Cong Eng v. Trinidad, 271 U. S. 500; Yick Wo v. Hopkins, 118 U. S. 356; Wong Wai v. Williamson, 103 Fed. 1 (N. D. Cal., 1900); Mills v. Board of Education et ah, 30 F. Supp. 245; Roles v. School Board of the City of Newport News, supra. V. Even assuming that the District Court’s error was not of such a degree that its findings may be deemed “ clearly erroneous,” the findings are invalid under the more rigid standard of review applicable to findings of the type here involved. Baumgartner v. United States, 322 U. S. 665, 670- 671; Illinois Bell Telephone Co. v. Slattery, 102 F. (2d) 58 (C. C. A. 7th, 1939), certiorari denied, 307 U. S. 648; Kuhn v. Princess Lida etc., 119 F. (2d) 704 (C. C. A 3rd, 1941); Bianchi v. Vere, 17 F. (2d) 22 (C. C. A. 1st, 1927), certiorari denied, 274 U. S. 752; United States v. Mammoth Oil Co., 14 F. (2d) 705 (C. C. A. 8th, 1926), affirmed 275 U. S. 13; Exmoor Country Club v. United States, 49 F. (2d) 961 (C. C. A. 7tli, 1941); Nixon v. Condon, 286 U. S. 73, 88; Smith v. Texas, 311 U. S. 128, 130; Hill v. Texas, 316 U. S. 401; Mills v. Board of Education et ah, 30 F. Supp. 245; Roles v. School Board of the City of Newport News, supra. I — 6 — ARGUMENT. The District Court judgment must be reversed because (a) its findings that the appellees did not discriminate on the basis of race or color in the payment of teachers’ sal aries are clearly erroneous; and (b) in any event such findings cannot stand under the more rigid standard of review applicable to findings of this type. I. Unconstitutionality of Differentiation in Salaries on the Ground of Race or Color. That a differentiation in salaries on the basis of race or color is unconstitutional as a violation of the due proc ess and equal protection clauses of the Fourteenth Amend ment has been assumed throughout this case by the appel lees as well as by the District Court. The validity of this position requires little discussion. The State must afford “ equality of privilege” to its citizens regardless of race and color; there can be no “ denial of the equality of legal right to the enjoyment of the privileges ivhich the State has set up” (Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 349, 350). If “ the state, in paying for public services of the same kind and character . . . arbitrarily pays less to Negroes than to white persons, this is as clear a dis crimination on the ground of race as could well be imag ined and falls squarely within the inhibition of both the due process and equal protection clauses of the Fourteenth Amendment. ’ n The basis of the District Court’s judgment is its ac ceptance of the appellee’s argument that no discrimina tion existed and that all teachers were paid on a basis of individual merit wholly apart from any consideration of color or race. 1 Alston v. School Board of City of Norfolk, 112 F. (2d) 992. 995-996 (C. C. A. 4th, 1940), certiorari denied, 311 U. S. 693. TT. The Appellants’ Prima Facie Case. The appellees have at no time denied that their payroll immediately and ineontrovertibly shows that the Negro teachers were disfavored in the payment of salaries as compared to the white teachers. Over a period of years the entrance salaries of all Negro teachers have been, and they continue to be, substantially lower than that of any white teacher (R. 316, 285-286, 324, 36, 39, 84, 87-88, 99-100, 189). Likewise, with respect to subsequent salaries, no Negro teacher of given education and experience earned as large a salary as any white teacher of such education and experience (R. 497-8; see tables in appendix B to appellee’s brief). Further, despite the general policy of paying high school teachers more than elementary, and experienced more than inexperienced (R. 183), the appellant Morris, and 24 other Negro high school teachers with years of experience, earned less than any white teacher, including inexperienced elementary school teachers (R. 187). The only reasonable inference from this uniform treat ment of Negro as compared to white teachers, is that the appellees employ a fixed policy of treating white and Negro teachers as two distinct groups and of varying the salaries of all Negro teachers between a lower minimum and maximum than those used for white teachers; that is, that race or color is a highly influential factor in setting the salaries. Thus, while salaries were not fixed on the basis of a definite written schedule which explicitly differ entiated between whites and Negroes, the appellee’s in formal salary-fixing system was used to effect a like dis criminatory result. With such a system, the determination of discrimination must necessarily depend upon Inference. The case is highly similar to that of Roles v. School Board of the City of Newport News,2 where the differences in 2 Civil Action No. 6 (1943), TJ. S. Dist. Ct., E. D. Va., unreported, printed in Appendix C to appellant’s brief. — 8 — salary of white and Negro teachers were alleged to be justified on the basis of a “ variable schedule.” The Court nevertheless determined that discrimination existed, pointing out that: • “ In every instance where special treatment was given to a white teacher or principal on account of his or her personal qualifications, such principal or teacher received favorable treatment in the way of increased compensation, while in no instance had such favorable treatment been accorded to a colored principal or teacher on account of his or her special personal qualifications. ’ ’ The inference to be drawn from the payroll is strength ened by a consideration of the history and background of the salary situation. While the District Court ignored the uncontradicted evidence on this aspect of the case, such evidence is highly important to a proper evaluation of the current practice in a suit of this type. See Mills v. Board of Education et ah, 30 F. Supp. 245 (compare Norris v. Alabama, 294 U. S. 591; Pierre v. Louisiana, 306 U. S. 354). In numerous instances when the appellees had occasion to make explicit provisions with respect to the range of salary payments, they explicitly differentiated between white and Negro teachers. In both 1941 and 1942, supple mental salary payments were distributed under a plan of determining the number of “ units” of pay to which each teacher was entitled on the basis of his experience, train ing, and salary, and of allotting $3 per unit to each white teacher and $1.50 per unit to each Negro (Exhibits 3-A and 3-B; R. 314). Race was likewise explicitly made a criterion of the amount of increases teachers were to re ceive in the school board resolutions for 1927, 1928, 1929, 1932 and 1936, with the Negroes similarly treated as a dis favored class (R. 33-34, 519, 525, 557, 560, 567-568). — 9 — One of the appellees’ witnesses attempted to argue that this group of increases could not be deemed discriminatory because the intention was merely to make the size of the increase depend on the salary then in effect, with larger increases for teachers with larger salaries (R. 34). Since Negro teachers were paid less than white, the witness sug gested that the provision for smaller increases for Negroes was merely a manner of describing this intention. But this supposed justification is in effect a clear admission of discrimination and of the fact that it was the basic and assumed premise of the appellees that the teachers were to be distinguished into two racial groups with inferior treatment for the Negro. For the alleged policy of in creases in proportion to salary was only applied for the purpose of, and insofar as it resulted in, allocating smaller increases to Negro teachers as a group; it was not applied to individual teachers within the white and Negro groups.3 The explicit discriminatory policy of the appellees when they had occasion to embody salary provisions in definite schedules must he viewed as of considerable weight in determining whether or not the present salary differences between white and Negro teachers, in the absence of a definite schedule, are based on an implicit perpetuation of the same policy. TIL Appellees’ Attempted Rebuttal of Appellant’s Prima Facie Case. The contention advanced by the appellees in rebuttal of the clear prima facie case of discrimination established 3 That is, appellees provided for smaller increases to all Negro teachers than to any white teacher; however, when appellees differentiated in the amount of increases distributed to individuals within the white and Negro groups or gave increases only to some teachers in each group, preference was given to the lower paid teachers over the higher paid within the group, rather than vice versa. See 1934 and 1936 resolutions (R. 560, 564-565, 567-568). — 1 0 — by the above evidence,4 is that no consideration whatso ever was given to the race or color of the teachers, but that the discrepancies between the salaries of all entering white and Negro teachers and between the salaries of all white and Negro teachers of equal education and expe rience are merely a chance result of appraisals of the teaching ability of each individual teacher in which race and color are ignored. However, the testimony offered by the appellees itself contradicted this argument, For various of appellees’ witnesses explained the differential, not on the basis of the merits of the individual teachers; but instead on the bases that the majority of white teach ers “ have better background and more cultural back ground” (R. 62) and are as a whole group more quali fied (R. 39); that the Negroes are willing to accept less (R. 23-24, 120); and that Negroes can live on less money (R. 121). These attempts to justify different treatment for Negroes and whites are obviously clear admissions that discrimination on the basis of race and color did occur. That is, admission that the teachers were in fact regarded and treated as racial groups rather than as individuals regardless of race. Viewed as justifications for the thus admitted discrimination, these statements are so vague, over-generalized, and specious, that it is, we submit, unnecessary to give them extended consideration.5 4 Compare Norris v. Alabama, 294 TJ. S. 591, and Hill v. Texas, 316 U. S. 401, with respect to the establishment of a prima facie case by a showing that Negroes had over a period of time been in a disfavored class. 5 The statement as to the comparative backgrounds and qualifications of the majority of white and Negro teachers, as groups, even if true, would not justify the failure to consider their comparative backgrounds and qualifications on an individual basis. The statement that the Negroes are willing to accept less pay than whites could not conceivably be an accu rate statement with respect to the attitude of every white and Negro applicant; and it may be noted that the Superintendent of Schools admitted that this was not the reason for the lower pay to Negroes. The Superintendent stated that he would pay a minimum initial salary of $900 to a white teacher, although the initial salary for Negroes was $615 or $630, even if such white teachers would accept less (R. 329). Finally, the statement that Negroes could live on less than whites is meaningless; it can only be interpreted as an indirect way of stating that Negroes have found it necessary to live on less, since it could hardly have been intended as a comparison of the physical stamina of the two groups of teachers. — 11 — The Superintendent, whose recommendations as to sal ary are generally accepted by the School Board (R. 21, 31, 56, 102), admitted that there had been very little change in the salaries since he had assumed office in 1941, and that therefore differences between the salaries of whites and Negroes which then existed, whatever their basis, con tinued to exist (R. 183, 189, 192). It is indubitable that such differences were at least in part solely due to race in view of the system of giving increases discussed above. And as to that part of the differential not attributable to these increases, which has thus been perpetrated during the Superintendent’s term of office, the appellees pro duced no evidence to support the contention that it had arisen from an impartial consideration of the individual merits of the teachers. With respect to his engagement of new teachers, the Su perintendent replied: “ I cannot answer,” when asked to explain why he invariably judged that a new Negro teacher for elementary school was “ worth” a beginning salary of $615, and $630 for high school, whereas new white teachers were invariably hired at $810 and $900 for elementary and high school, respectively (R. 329). Moreover, the Superintendent did not show, or even assert, nor did any witness for appellees, that any effort was made to ascertain whether the teaching ability of the Negro teachers warranted a general adjustment in their pay subsequent to their initial engagement at this sub stantial difference from the salaries of white teachers. When questioned as to the reason that appellant and 24 other Negro high school teachers with years of experience were paid less than any white teacher, including inex perienced elementary school teachers, the Superintendent testified that he could not fix the salaries of Negro high school teachers on the basis of merit because of limited funds (R. 192). This statement, that the limitation of funds led to failure to pay the Negroes on the same basis — 12 as the whites, rather than, if necessary, decreases in sal aries regardless of race, is the clearest admission of dis crimination. The appellees’ blanket denials of discrimination would in any event lie entitled only to scant weight since they are merely self-serving declarations as to the ultimate is sue in the case; and in view of the virtual admissions of discrimination, the inconsistencies and the major gaps in their* testimony, those denials can he considered of only the most negligible probative value. Other than their- hare and general testimonial assertions, the appellees offered no evidence to prove the existence of the rating system upon which the salaries had allegedly been based and to establish the fact that the salaries had actually been based on rating of individual teaching abil ity. They did, however, put in evidence rating sheets which were compiled after the commencement of this suit. These sheets were admittedly not the basis upon which the salaries had been fixed (R. 282, 489); but rather pur ported to serve as an ex post facto justification for them, since in each case a Negro of given education and expe rience had a lower rating on this sheet than whites of the same education and experience. Assuming that the rating sheets were admissible in evi dence (on this point see Appellant’s brief, pp. 47-48), the fact that they were compiled after this suit was commenced laid them open to grave suspicion. See Roles v. School Board of the City of Newport News, supra, where the Court pointed out that the fact that the variable schedule was put in force subsequent to the demands of the plaintiff gives “ rise to the idea that the variable schedule might be an afterthought.” 6 And it is most amazing that if the 6 Compare also Norris v. Alabama, 294 U. S. 587, 593, where the Supreme Court held that the appearance of names of Negroes on a jury roll could not be considered in determining whether there was discrimination in the selection of jurors; because the names had been added in an attempt to conceal discrimination after the roll’s original completion. — 13 — teachers had been paid, as alleged by the appellees, on the basis of a fairly rough and informal appraisal of their merits, the ratings thereafter made on this formal rating sheet by a different method of evaluation should have cor responded practically precisely with the previous ap praisals. This coincidence seems the more peculiar in view of the Superintendent’s statements that there were too many personal elements involved in the ratings for them to be entirely accurate (11. 347, 348, 489). IV. The District Court’s Judgment Must Be Reversed as Clearly Erroneous. On the basis of the foregoing evidence the District Court’s conclusion that the appellees had rebutted the ap pellants’ prima facie case of discrimination and estab lished that the teachers were paid on the basis of teaching ability regardless of race, must be reversed because clearly erroneous. In any “ appeal in equity it is our [the Circuit Court’s] duty to review the facts as well as the law and . . . the review contemplated is a real review and not a mere perfunctory approval.’ ’7 Furthermore, we submit that the quantum of proof which the appellees had to produce to establish an adequate rebuttal of the plaintiff’s case was greater than that of the defendant in the usual civil suit, and that, applying this principle, the District Court’s error is even more patent. The Supreme Court has emphasized in a number of recent decisions that in the case of a restriction of civil or personal liberty that the Government bears a burden of establishing its justification, which it is not obliged to support in respect of restrictions involving matters less 7 Oxley v. Sweetland, 94 F. (2d) 33, 41 (C. C. A. 4th, 1938). — 14 — “ vital to the maintenance of democratic institutions.” 8 This principle of law is fully applicable in such a case as the instant one where there has been a prima facie show ing of a deprivation of the basic personal rights to equal protection and due process.9 And the principle would be meaningless if every superficially plausible rationalization for ail apparent discrimination were to be accepted as a fulfillment of the Government’s burden of proof; for such a rationalization can no doubt be offered to obfuscate the existence of discrimination in any case in which the ques tion arises. Indeed, in practically all of the cases in which the courts have found that an unconstitutional racial dis crimination occurred, they have had to scrutinize, and have rejected, explanations that apparent differentiations between the races were not based on race.10 V. Even Assuming That the District Court’s Error Was Not of Such a Degree That Its Findings May Be Deemed “ Clearly Erroneous,” the Findings are In valid Under the More Rigid Standard of Review Applicable to Findings of the Type Here Involved. Even assuming that the District Court’s conclusions were not clearly erroneous, this Court has a graver duty in the instant case than merely to determine whether the lower court’s judgment should be reversed because of s Schneider v. State, 308 U. S. 147, 161. To the same effect: Thomas v. Collins, 65 Sup. Ct. 315, 322-323; West Virginia Board of Education v. Barnette, 319 U. S. 624, 639; Martin v. Struthers, 319 U. S. 141, 144; United States v. Carolene Products, 304 U. S. 144, 152, note 4. 9 See Mitchell v. United States, 313 U. S. 80, and Missouri ex rel. Gaines v. Canada, 305 U. S. 337, as to the personal nature of these rights. And see McDaniel v. Board, 39 F. Supp. 638, 641 (N. D. Fla., Pensacola Div, 1941). to See, for example, Smith v. Texas, 311 U. S. 128; Hill v. Texas, and Pierre v. Louisiana, supra; Yu Cong Eng v. Trinidad, 271 U. S. 500; Yick Wo v. Hopkins, 118 U. S. 356; Wong Wai v. Williamson, 103 Fed. 1 (N. D. Cal., 1900); Mills v. Board of Education, and Roles v. School Board of the City of Newport News, supra. 15 such clear error. Where, in a District Court’s findings of no discrimination, as in the instant case, the lower court has drawn a conclusion, which though labeled a finding of fact,11 is largely an inference from the evidence,12 or a finding of the ultimate fact in the case, or a determination of a mixed question of law and fact,13 the Circuit Court has the responsibility for arriving at its own conclusion on the evidence. The Supreme Court has recently sum marized much of the doctrine on the matter of appellate review of such a determination as that here in issue. In Baumgartner v. United States, the Supreme Court, in re- versing the District Court’s “ findings of fact,’ ’ which had also been approved by the Circuit Court, declared: “ The phrase ‘ finding of fact’ may be a summary characterization of complicated factors of varying significance or judgment. Such a ‘ finding of fact’ may be the ultimate judgment on a mass of details involving not merely an assessment of the trustworth iness of witnesses but other appropriate inferences that may be drawn from living testimony which elude print. The conclusiveness of a ‘ finding of fact’ de pends on the nature of the materials on which the finding is based. The finding even of a so-called ‘ subsidiary fact’ may be a more or less difficult process varying according to the simplicity or subtlety of the type of ‘ fact’ in controversy. Finding so-called ulti mate ‘ facts’ more clearly implies the application of standards of law. And so the ‘ finding of fact’ even if made by two courts may go beyond the determina tion that should not be set aside here. Though labeled ‘ finding of fact,’ it may involve the very basis on 11 Compare Illinois Bell Telephone Co. v. Slattery, 102 P. (2d) 58 (C. C. A. 7th, 1939), certiorari denied, 307 U. S. 648, holding that a so-called finding of fact was in reality a conclusion of law, 12 See Kuhn v. Princess Lida, etc.. 119 F. (2d) 704 (C. C, A. 3rd, 1941); Bianehi v. Vere, 17 P. (2d) 22 (C. C. A. 1st, 1927), certiorari denied, 274 U. S. 752; United States v. Mammoth Oil Co., 14 P. (2d) 705 ( C C A 8th, 1926), affirmed 275 U. S. 13. is See Exmoor Country Cluh v. United States, 49 P. (2d) 961 (C. C. A. 7th, 1941); United States v. Mammoth Oil Co., supra, note 12. — 1 6 — which judgment of fallible evidence is to be made. Thus, the conclusion that may appropriately be drawn from the whole mass of evidence is not always the ascertainment of the kind of ‘ fact’ that precludes con sideration by this Court. * * * This recognized scope of appellate review is usually differentiated from review of ordinary questions of fact by being called review of a question of law * * (322 U. S. 665, 670-671). And in Nixon v. Condon, the Supreme Court used similar reasoning when it reversed the lower court’s conclusion with respect to a violation of the very Constitutional pro vision here in issue. The Court there held that it would “ determine for itself,’ ’ “ whether parties are agencies of government within the Fourteenth or Fifteenth Amend ments” (286 IT. S. 73, 88). Accordingly, while we believe that the District Court’s findings are clearly erroneous, we submit that even if they were not reversible on the basis of that criterion, the lower court’s judgment must be reversed on the basis of the more rigid standard of review applicable to findings of the type here involved. The case on the whole is highly similar to Smith v. Texas and Hill v. Texas, among the recent Supreme Court decisions, and to Mills v. Board of Education et al. and Roles v. School Board of the City of Newport News, among the teachers’ pay cases. In all of these cases, while the system in effect did not inherently necessitate discrimina tion, the inference of discrimination arising from the less- favored position of the Negroes was not adequately refuted by the governmental authorities. As stated in Smith v. Texas “ the statutory scheme is not in itself unfair; it is capable of being carried out with no racial discrimination whatsoever. But by reason of the wide discretion per missible * * * it is equally capable of being applied discriminatorily” (311 IT. S. 128, 130); and the Court found 17 — it had been so applied. As in these eases, the appellees cannot he permitted to continue discrimination merely be cause they have practiced it without explicit statement of an intention to discriminate. CONCLUSION. The District Court’s judgment should be reversed. Respectfully submitted, LUTHER ELY SMITH, Counsel, American Civil Liberties Union, Amicus Curiae. VICTOR B. HARRIS, of the Missouri Bar, NANETTE DEMBITZ, of the New York Bar, Of Counsel. ■ United States Circuit Court of Appeals EIGHTH CIRCUIT. No. 12,887. Susie Morris, for herself and for others similarly s i t u a t e d , Frances B. Hibbler, Inter vener, Appellants, vs. Robert M. Williams, Chairman; Murray 0. Reed, Secretary; Mrs. W. P. McDermott; Mrs. W. F. Rawlings; Dr. R. M. Blakely and E. F. Jennings, constituting the Board of Di rectors of the Little Rock Spe cial School District, and Rus sell T. Scobee, Superintendent o f Schools, Appellees. Appeal from the Dis trict Court of the United States for the Eastern Dis trict of Arkansas. [June 19, 1945.] Mr. Thurgood Marshall and Mr. J. R. Booker (Mr. W il liam H. Hastie, Mr. Edward R. Dudley and Mr. Myles A. Hibbler were with them on the brief) for Appel lants. 2 Mr. A. F. House (Mr. Baucum Fulkerson and Mr. William Nash were with him on the brief) for Appellees. Mr. Luther Ely Smith, Mr. Victor B. Harris and Miss Nanette Dembitz filed brief on behalf of American Civil Liberties Union as Amicus Curiae. Before Sanborn , W oodrough and T hom as, Circuit Judges. T hom as, Circuit Judge, delivered the opinion of the Court. This is a class suit commenced by Susie Morris, a negro school teacher of Little Rock, Arkansas, for herself and on behalf of other teachers and principals in the colored schools of Little Rock similarly situated. The defendants are the Board of Directors and the Superintendent of the public schools of the Little Rock Special School District. The purposes of the action are (1) to obtain a judgment or decree declaring that in violation of the 14th amend ment to the Constitution of the United States the defend ants are denying to the plaintiffs the equal protection of the laws and (2) for an injunction. The complaint filed February 28, 1942, alleges that de fendants now are maintaining and over a long period of years have consistently maintained the policy, custom and usage of paying negro teachers and principals in the public schools of the city less salary than white teachers and principals possessing the same professional qualifications, licenses and experience and performing the same duties and services as the negro teachers and principals, and that pursuant to such policy the defendants acting as agents of the State of Arkansas, have established and maintained a salary schedule which provides a lower scale of salaries 3 for colored than for white teachers, and that such dis crimination is based solely upon race or color. The defendants in their answer tiled March 27, 1942, denied that they maintain a policy, custom or usage in Little Rock of paying negro teachers and principals lower salaries than are paid white teachers and that if such difference in salaries exists it is not based in whole or in part upon race or color but solely on difference in special training, character, professional qualifications, experience, duties, services and accomplishments; and they denied that there exists a salary schedule for teachers in Little Rock, discriminatory or otherwise, in violation of the 14th Amendment. The case was tried to the court on its merits in Septem ber and October, 1942. On March 10, 1944, the court made findings of fact and conclusions of law favorable to the defendants and entered the judgment from which this ap peal is taken dismissing the complaint. The court’s opinion, filed January 5, 1944, is reported in 59 F.Supp. 508. Two issues, both of which were decided by the trial court in favor of the defendants, are presented here for determination. They are: 1. Did there exist in Little Rock a schedule of salaries for teachers in the public schools by which the negro teachers were discriminated against solely on account of race or color? 2. Did there exist a policy, custom or usage to pay negro teachers lower salaries than were paid to white teachers solely on account of race or color? It was assumed throughout the trial in the district court and in the briefs filed in this court that if either of these questions must be answered in the affirmative such 4 practice, schedule, policy, usage or custom violates the 14th Amendment and that judgment should have been for the plaintiff and the judgment entered should be reversed, unless a salary adjustment made by defendants since the trial in the lower court renders the case moot and requires an affirmance. The question Avhether the complaint states a cause of action under the 14th Amendment was not discussed by the district court, and we need not discuss it at length. The point was necessarily decided, however, by the court’s holding that it had jurisdiction of the parties and of the cause of action. The facts alleged in the complaint and ad mitted in the answer bring the issue clearly within the jurisdiction of the federal court requiring it to determine whether the defendants have violated the 14th Amend ment in the manner charged. Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 992; Mills v. Board of Education of Anne Arundel County, D.C., 30 F.Supp. 245; McDaniel v. Board of Public Instruction, D.C., 39 F. Supp. 638; Thomas v. Hibbitts, D.C., 46 F.Supp. 368; Davis v. Cook, D.C., 55 F.Supp. 1004. For an illuminating discussion of the constitutional question involved see the opinion of Judge Parker in the Alston case, supra. See also the able opinion of Judge Underwood in Davis v. Cook, supra. Article X IV of the Constitution of Arkansas of 1874 provides that “ the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twentv- one years may receive gratuitous instruction’ ’ and that the supervision of the public schools shall “ be vested in and confided to such officers as many be provided for by the General Assembly.” Under this authority the general as sembly has established a free school system (Ch. 147 5 Pope’s Digest of Statutes of Arkansas) and has vested its maintenance and administration in a State Board of Edu cation, a Comissioner of Education, school districts and local superintendents. Act 127 of Acts of 1941 of the Gen eral Assembly of Arkansas. The Little Rock Special School District exists as an administrative department of the State (Section 11490 of Pope’s Digest of Statutes of A r kansas), and the defendants constitute its Board of Di rectors and Superintendent. All teachers in Arkansas, including the teachers in Little Rock, are required to hold teaching licenses in accordance with rules of certification prescribed by the State Board of Education. Act 127 of the Acts of 1941 of the General As sembly. The duty of enforcing the system is imposed upon the Boards of Directors. The defendant Board of Direc tors controls and supervises the public schools of Little Rock, employs teachers, fixes their salaries and issues warrants for their payment. Section 11535, Pope’s Digest of the Statutes of Arkansas. The school funds are derived from both local and state taxation. The State of Arkansas has provided for the education of negro and white students in separate schools. Pope’s Digest, § 11535(c). The validity of this method of educa tion has been sustained by the Supreme Court when the advantages and facilities afforded the two classes are sub stantially equal. See Missouri ex rel. Gaines v. Canada, supra, p. 344. In the city of Little Rock negro teachers are employed for the negro schools and white teachers for the white schools. Both groups are a part of the same sys tem under the supervision of one superintendent and subordinate supervisors or sponsors employed by the Board. There are 86 colored teachers in the system and ap proximately 320 white teachers. The defendant superin tendent was first employed in February, 1941, approxi mately one year before the commencement of this suit. 6 The same courses of study and the same textbooks are used in all the schools of the city, both negro and white; and all schools are open the same number of days in the year and the same number of hours in each day. The Board of Directors, consisting of six members elected annually by the people, is divided into two com mittees of three members each, a personnel committee and a finance committee. The finance committee prepares the budget and the personnel committee with the assistance of the superintendent allocates the funds allotted for salaries among the teachers. The salaries are recommended to the committee by the superintendent, and the report of the committee is submitted to the Board for its approval. In light of this outline of the situation we shall consider the issues presented on this appeal. First. Did there exist a discriminatory salary schedule? Upon this question the court found: “ 17. There is and was no schedule of salaries prepared, adopted or used by the Board of Directors or authority of the District, fixing salaries of teachers according to the positions they fill as teachers, or otherwise, and no such schedule of salaries was in effect at any time pertinent herein. ’ ’ While there are some minor conflicts in the evidence upon this point the finding of the court is abundantly sup ported by the record. The burden was upon the plaintiff to establish the existence of a schedule. There was no evi dence that a schedule was ever formally adopted by the Board by reference to which and by reference to the color of a teacher or to his qualifications, experience, or posi tion, his salary could be determined. Second. Did a discriminatory policy, custom or usage exist based solely on race or color ? This question presents 7 a more difficult problem than does the question relating to a formal schedule. On this issue the trial court found: “ 18. No policy, usage or custom existed over a long period of time, at the time of the institution of the suit, or thereafter whereby plaintiff or any member of her class, as colored teachers of the Negro race, is discriminated against in salaries solely on account of race or color.” Rule 52(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that “ Findings of fact shall not be set aside unless clearly erroneous.” Counsel for defendants construe this to mean that if the findings of the trial court are based upon substantial evidence they will not be set aside on appeal. Such a test is not always determinative. Findings “ are not a jurisdictional require ment of appeal” , but only “ aid appellate courts in re viewing the decision below.” See Rossiter v. Vogel, 2 Cir., 148 F.2d 292, 293. While it is idle to try to define the phrase 4 ‘ clearly erroneous ’ ’ both inclusively and exclusive ly (United States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 433), this court in considering the Rule has frequently construed it to mean that “ A finding of fact of a District Court is not clearly erroneous unless it is (1) unsupported by substantial evidence, (2) contrary to the clear weight of the evidence, or (3) induced by an erroneous view of the law.” Sbicca-Del Mac v. Milius Shoe Co., 8 Cir., 145 F.2d 389, 395; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199, and cases cited. Further, a 4 4 finding of fact ’ ’ in the nature of a conclusion, such as the one here under consideration, “ depends on the nature of the material on which the finding is based.” Baumgartner v. United States, 322 U.S. 665, 671. In such a case, where constitutional rights are involved, it is neces sary for the reviewing court carefully to examine the evi dence and determine not only whether the conclusion is 8 supported by substantial evidence, but also whether it is contrary to the clear weight of the evidence, or whether it was induced by an erroneous view of the law. Upon the trial the practice, custom and usage of the Board as far back as 1926 were reviewed. The pay rolls, the qualifications of teachers, their years of experience, their positions, and the minutes of the Board were intro duced in evidence. During most of this period, except dur ing the depression in the 1930’s, new negro teachers were paid $615 a year in the elementary schools and $630 in the high school while new white teachers were paid $810 in the lower grades and $900 in the high school. In 1928 the Board resolved that “ the white teachers are to receive an increase of $100 for 1928-29 and the colored teachers an in crease of $50 for 1928-29.” In 1929 a resolution was adopted by the Board that “ an advance of $100.00 per year be granted all white teachers, and $50.00 per year for all colored teachers.” In 1932 the salaries of all teachers were cut 10%, part of which was restored in 1934. In March, 1936, the Board decided: “ That the contracts for 1936-37 of all white teachers who are now making $832 or less be increased $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 adjust ment exceed $700.” During the period covered by the minutes of the Board referred to above there were a few negro teachers receiv ing salaries ranging up to as high as $1,346.96, which was higher than the rate at which some white teachers were paid. The principal of the colored high school received $2,742.17, and the principal of the senior white high school 9 received $3,712.50 per year. Counsel for plaintiffs, how ever, do not contend that salaries should be the same where the position or the duties or the qualifications re quired are not equivalent. On two occasions the Board found that there was more money on hand in the teachers’ fund than had been an ticipated, and it was decided to distribute this balance among the teachers. Approximately $14,800 was available for this purpose in October, 1941, and $40,000 in June, 1942. A plan of distribution recommended by a committee consisting solely of white teachers was adopted by the Board. The plan provided that the allocations of the funds to the teachers, negro and white alike, should be graduated according to a schedule based upon (1) years of service in the Little Rock schools, (2) training, and (3) present salary. For example, a teacher with 15 years’ service, holding a Bachelor’s degree, and earning $1600, would be entitled to 3 points for service, 5 points for training, and salary level 4 points, or a total of 12 points. If the teacher were white he would receive from the fund $3 for each point or $36; but if he were a negro he would receive only $1.50 for each point or $18. That very substantial inequalities have existed between the salaries paid to colored teachers and those paid to white teachers and that such inequalities have continued over a period of years are undisputed. No explanation of these inequalities is found in the minutes of the Board. The superintendent testified that in employing new teach ers he recommended a salary in each instance based upon what in his judgment the individual teacher would be worth to the school system; that when he discovered that a teacher was receiving less or more than he merited an ad justment was recommended; that in the short time that he had been connected with the schools of Little Rock he had 1 0 not had time to make very many corrections; and that in fixing salaries he does not take into consideration the race or color of the teacher. The several members of the Board of Directors testified that they had never heard the race or color of the teachers discussed at Board meetings. It is conceded that individual merit is a proper basis for determining salaries, but the negro teachers who testified and the defendants do not agree as to the factors which should be considered in arriving at the relative values of teachers. The question is one of relativity because the total amount paid the entire group is limited to the amount of the fund raised by taxation for that purpose. The plain tiff Susie Morris testified that in her opinion only train ing, or college degrees, and years of experience should be considered in fixing salaries. The superintendent, with whom the Board of Directors agreed, testified that those qualifications are only basic, only a starting point; that many people with college degrees can not teach school; that certain intangible factors enter into the appraisal of a teacher’s worth, such as honesty, sympathy, personality, ability to get along with people, ability to give directions, and a number of other things. In determining the value of teachers it is an evident fact, recognized by the courts, “ that because the positions are equivalent the particular persons filling them are [not] necessarily equal in all respects in professional attainments and efficiency; and some range of discretion in determining actual salaries for particular teachers is entirely per missible. . . ” Mills v. Board of Education, etc., D.C., 30 F.Supp. 245, 249; Turner v. Keefe, D.C., 50 F.Supp. 647, 651. Teaching is an art; and while skill in its practice can not be acquired without knowledge and experience, excel lence does not depend upon these two factors alone. The processes of education involve leadership, and the success 11 of the teacher depends not alone upon college degrees and length of service but also upon aptitude and the ability to excite interest and to arouse enthusiasm. The superin tendent is justified in believing that many people with col lege degrees can not teach school, whether white or colored. It is entirely proper in our opinion when fixing salaries of teachers to consider such intangible factors. A differential in salaries, therefore, based solely upon differences in individual attainments and worth is not repugnant to the 14th Amendment. It is equally true that a differential based solely on race or color is prohibited. The crucial question in this case is whether the evidence demonstrates that there existed in Little Rock before the trial and continuing at the time of the trial a policy or custom of paying negro teachers less for comparable serv ice than was paid to white teachers solely on the basis of race or color. We think the record compels the conclusion that such discrimination did exist. The minutes of the Board recited above and the distribution of surplus funds in 1941 and 1942 permit no contrary inference. The ex planation that substantially all colored teachers are worth less than substantially all white teachers; that the basic salaries of colored teachers are accordingly lower than the basic salaries of white teachers; and that it is therefore logical that public funds should be distributed to them on a percentage basis is not sustained by the evidence. The explanation appears to be an after-thought designed to meet the exigencies of a defense. No doubt some colored teachers were paid more than other colored teachers hold ing equivalent positions and some white teachers were paid more than other white teachers in equivalent positions, all on the basis of their respective individual worth; but the minutes of the Board record that the gap between the pay ments to and the salaries of white and colored teachers was 12 based upon race and color. We have studied the record and the able briefs of counsel carefully and we find it im possible to reconcile the theories of the defense with the undisputed facts. The plaintiffs objected to the admission in evidence of a rating sheet of all the teachers in the public schools of Little Bock compiled in June, 1942, by the defendant superintendent after this suit was commenced, from rat ings made during the preceding months by sponsors under the superintendent’s direction. The ratings were not pre pared for the purpose of fixing salaries, and were not compiled until after the salaries for the following school year had been fixed. These ratings were offei'ed in evidence because they tended to justify the difference in salaries of white and colored teachers. The admission of these ratings was discretionary with the trial court. Further, where a case is tried to the court without a jury the mere fact that incompetent or imma terial evidence may be introduced can not be said to be prejudicial. Garden City Feeder Co. v. Commissioner of Internal Revenue, 8 Cir., 75 F.2d 804, 807. A presumption prevails that the court considered only the competent evi dence. Policyholder’s Nat. Life Ins. Co. v. Harding, 8 Cir., 147 F.2d 851, 855. For our own guidance in weighing or disregarding the rating sheets we have read carefully the testimony of the sponsor who rated the negro teachers, and we attach but little importance to the exhibit. The superin tendent has not used these ratings as a basis for fixing salaries, and we do not believe that he would do so after hearing or reading the sponsor’s testimony. In their briefs in this court defendants state that since the trial in the district court there has been a complete readjustment of the salaries of all teachers in the Little 13 Rock public schools, both negro and white, resulting in an increase of salaries of nearly all the teachers, the most substantial increases being in the salaries of negro teach ers. Counsel argue that this situation renders the issues moot and that neither a declaratory judgment nor an in junction is now necessary or proper. Schedules showing some of the increased salaries are attached to the briefs. While we do not question the statement of facts in counsel’s brief or their good faith in any way, still no evidence is presented for our consideration. The verified minutes of the Board of Directors showing the date and extent of the changes in teachers’ salaries are not set out or in any way made a part of the record. We can not say from the facts stated whether the “ policy, custom and usage” complained of have been abandoned or not; there is no assurance given in the statement of counsel that such usage and custom may not be resumed at any time, even though presently abandoned. Under these circumstances this court can not consider the matter and things thus brought to our attention. Since the controversy remains it is the duty of the court to adjudicate the issues presented. They are not moot, and would not be moot even had the changes been made prior to the trial. United States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 448; South ern Pacific Terminal Company v. Interstate Commerce Commission, 219 U.S. 498, 515; Federal Trade Commission v. Goodyear Co., 304 U.S. 257, 260. More than three years have elapsed since the case was commenced and nearly three years since it was tried in the district court. Two forms of relief were demanded; a declaratory judgment and an injunction. Under the De claratory Judgment Act, 28 U.S.C.A. § 400, the district court has jurisdiction, when a controversy exists, “ to de clare rights and other legal relations of any interested 1 4 party petitioning for such declaration, whether or not further relief is or could be prayed.” The answer admitted the existence of a controversy concerning the rights of the colored school teachers of the Little Rock Special School District. We have found that the proof establishes the averments of the complaint that the defendants had been and were at the time of the trial maintaining a policy, usage and custom of discriminating against the colored teachers of the district in the matter of salaries solely on account of race or color. The holding of the district court denying a declaratory judgment is accordingly reversed. Under 8 U.S.C.A. § 43, the court has power in equity to redress any citizen deprived of “ any rights, privileges or immunities secured by the Constitution” under “ color of any . . . custom, or usage, of any State or Territory.” As shown supra the custom or usage of defendants of dis criminating against the colored teachers of Little Rock in respect of salaries solely on account of race or color vio lates plaintiffs’ rights secured by the 14th Amendment to the Constitution. There is no doubt that relief by injunc tion is a proper remedy against such custom or usage. The granting of an injunction is under many circumstances, however, discretionary with the trial court. Owing to the lapse of time since the trial and the changed usage and cus toms of defendants referred to in their briefs in respect of discriminatory salaries paid teachers on account of race and color an injunction may not be necessary or appro priate. This may be true, especially provided evidence were received showing a good faith determination of the defendants permanently to abandon such discriminatory practices. See Walling v. Shenandoah-Dives Mining Com pany, 10 Cir., 134 F.2d 395. The judgment dismissing the complaint is reversed. The case is remanded to the district court with directions to 15 enter forthwith the declaratory judgment prayed for, re serving jurisdiction to enter such further orders as may be required to make the judgment effective, and for further proceedings not inconsistent with this opinion. The district court is also directed that such judgment shall be without prejudice to the right of the plaintiffs, in case they believe their declared rights are violated, to apply for an order requiring the defendants to show cause why the injunction prayed for in the complaint should not be granted, or for such other appropriate relief as they may elect to seek. Reversed and remanded with instructions. A true copy. Attest: Clerk, U. S. Circuit Eighth Circuit. - r ' .