Morris v. Williams Briefs

    KARRIS

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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



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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.

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