Foster v. Mobile County Board of School Commissioners Brief of Plaintiffs-Intervenors-Appellants

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

#
£

NO. 78-1078

EDWIN FOSTER and 
JAMES E. BUSKEY,

Plaintiffs-Intervenors-Appellants,
-vs -

BOARD OF SCHOOL COMMISSIONERS OF 
MOBILE COUNTY, et al.,

Defendants-Appellees.

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On Appeal from the United States District Court 
for the Southern District of Alabama 

Southern Division
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BRIEF OF PLAINTIFFS-INTERVENORS-APPELLANTS
JACK GREENBERG 
BILL LANN LEE 
SUITE 2030 
10 COLUMBUS CIRCLE 
NEW YORK, N.Y. 10019

J. U. BLACKSHER 
1407 DAVIS AVENUE 
MOBILE, ALABAMA 36603
SOLOMON SEAY
352 DEXTER AVENUEMONTGOMERY, ALABAMA 36104
Attorneys for 

Appellants
Plaintiffs-Intervenors-

#



CERTIFICATE REQUIRED 
BY LOCAL RULE 13 (a)

Undersigned counsel of record for plaintiffs-intervenors- 
appellants, Edwin Foster and James E. Buskey, certifies that 
the following listed parties have an interest in the outcome 
of this case. These representations are made in order that 
judges of this Court may evaluate possible disqualifications 
or recusal pursuant to Local Rule 13(a).

Edwin Foster and James E. Buskey, plaintiffs-intervenors, 
and the subclass of black professional employees of the Mobile 
County Public School System, whom they seek to represent.

Birdie Mae Davis, et al; plaintiffs, and the class of 
black students, parents and professional employees they represent 
as members of the plaintiff class herein.

Hiram Bosarge, Dan C. Alexander, Norman J. Berger, Ruth F. 
Drago, Homer L. Sessions, Mobile County School Commissioners; 
and the Board of School Commissioners of Mobile County, defendants.

The Alabama Education Association and the NAACP Legal Defense 
and Educational Fund, Inc., non-parties who have advanced a por­
tion of the attorneys' fees and expenses incurred by plaintiffs- 
intervenors-appellants, Edwin Foster and James E. Buskey, and 
who will be reimbursed for said advancements in the event plain­
tiff s-intervenors ultimately prevail in this action and are awarded 
attorneys' fees and expenses.

Attorney for Plaintiffs-Intervenors- 
Appellants, Edwin Foster and 
James E. Buskey



TABLE OF CONTENTS

Abbreviations...........................................  i
Table of Authorities....................................  ii-v
Request for Oral Argument...............................  vi
Statement of Questions Presented........................ vii
Statement of the Case...................................  1-11
Statement of Facts

A. Introduction...................................  11-12
B. Racial Segregation of Principal Positions.......  13-16
C. The Adverse Racial Impact of the School Board's

Policies for Selecting Principals.............  16-18
D. Adverse Racial Impact of the School Board's 

Policies and Practices for Selecting Central
Office Staff...................................  18-20

E. The School Board's Standards and Procedures for
Promotion to Principal and Central Office Staff. 20-25

F. The Applications of Edwin Foster and James E.
Buskey.........................................  25-35

Summary of the Argument.................................  35-37
Argument

A. The District Court Erred in Denying the Class
Action Claims of Foster and Buskey............. 38-52
1. The evidence established and the district 

court found classwide discrimination against
black teachers.............................  38-45

2. The district court misinterpreted this Court's 
prior instructions with respect to the ability 
of Foster and Buskey to represent a subclass
of black teachers..........................  45-49

3. Birdie Mae Davis, et al. are not fully adequate
representatives for the class promotion claims; 
denial of Foster's and Buskey's Rule 23 motions 
restricts relief available to the subclass and 
undermines the purposes of Title VII......... 49-52

Page(s)



Page(s)

r

B. The District Court Erred in Denying the Individual
Claims of Foster and Buskey.......................  53-58
1. The district court committed legal error by

basing its dismissal of plaintiffs-intervenors' 
individual claims on consideration of the School 
Board's motives...............................  53-55

2. In any event, purposeful racial discrimination
was proved....................................  55-56

3. The district court's findings of fact con­
cerning the intervenors' individual claims were 
clearly erroneous.............................  56-57

4. As a matter of law, the district court applied
the wrong statute of limitations to Mr. Foster's individual claim..............................  58

C. On Remand, the District Court Should Award Plain-
tiffs-Intervenors Their Attorneys' Fees...........  58-59

Conclusion.................................................  59
Certificate of Service.....................................  60

*



ABBREVIATIONS

The following abbreviations are used throughout this 
brief:

Because there was an interlocutory appeal and appellate 
record in this action, the record of pleadings and orders is 
bound in separately paginated volumes marked I, II, III A and 
III B. The transcript of testimony is separately paginated in
volumes marked IV-VI. Accordingly, "R. I __" means page
in volume I of the record, "R. Ill A __" means page __ in
volume III A, etc. "Tr. IV __" means page _ in volume IV of
the transcript, etc.

The trial exhibits are abbreviated as follows:
"P. Ex. __" means Plaintiffs-Intervenors' Foster and

Buskey's exhibit no.__.
"D. Ex. " means Defendant School Board's exhibit no.

I

1



TABLE OF AUTHORITIES
Cases: Page(s)Albemarle Paper Co. V. Moody,

• 422 u'.'s'. 417 71975)7.7 ......................  52

Allen v. City of Mobile,
331 F .2d 1134 (S.D. Ala. 1971) aff'd, 466 F.2d

• 122 (5th Cir. 1972), cert, denied, 412 U.S.
909 (1973)..........7777....... ............. 40

Baker v. City of St. Petersburg,
 ̂ 400 F . 2d 294 (5th Cir. 1968).................  40

• Brown v. Gaston County Dyeing Machine Co.,
457 F .2d 1137 (4th Cir.), cert. denied, 409
U.S. 862 (1972)..........7777....... ........ 45

Bush v. Lone Star Steel Co.,
373 F. Supp. 526 (E.D. Tex. 1974)............ 41

Carr v. Montgomery County Bd. of Education,
F. Supp. (M.D. Ala., July 16, 1976). 41

Carter v. West Feliciana Parish School Bd.,
732 F . 2d 875 (5th Cir. 1970)................. 9, 55

Cross V. Board of Education of Dollarway,
395 F . Supp. 53T (E.D. Ark. 1975) 77.......... 56

Davis v. Board of School Comm'rs of Mobile County,
517 F .2d 1044 (5th Cir. 1975), cert. denied,

• 425 U.S. 944 (1976).................. 777777.. 2, 3, 45, 46
Davis v. County of Los Angeles,

F72d , 15 E.P.D. II 8046 (9th Cir.,
Dec. 14, 1777)...............................  51, 54

• East v. Romine, Inc.,
1 518 F . 2d 332, 340 (5th Cir. 1975)............ 57

Fitzpatrick v. Bitzer,
423 U.S. 1031 (1976).........................  50

® Harkless v. Sweeny Independent School Dist.,
554 F.2d 1353 (5th Cir.), cert. denied, 46
U.S.L.W. 3357 (1977)........................  42, 50, 56

Hines v. Rapides Parish School Bd.,
479 F.2d 762 (5th Cir. 1973).................  46, 47

ii



Cases : Page(s)

*

International Brotherhood of Teamsters v. United
Q f- Q f- p o
-----97 S. Ct. 1843 (1977).......................  42, 54, 59
James v. Stockham Valves and Fittings Co.,
-----559 F.2d 310 (5th Cir'. 1977).; 7 7 7 .T .........  59
Johnson v. Georgia Highway Express,
-----488 F . 2d 714 (5th Cir . 19/5)7...............  58
Johnson v. Goodyear Tire & Rubber Co.,-----491 F . 2d 1364 (5th"Cir. 1974)............... 52
Johnson v. Railway Express Agency, Inc.,
-----421 U.S. 454 (1975)..7. .........   51
Kirksey v. Bd. of Supervisors of Hinds County,

554 F .2d 139 (5th Cir. 1977)(en banc), cert.
denied, 46 U.S.L.W. 3354 (1977)............  54

Lee v. Coosa County Bd. of Education,FT Supp. (N.D. Ala., Mar. 25, 1976). 41
Lee V. Macon County Bd. of Education (Conecuh 
County),

AE2 F . 2d 1253 (5th Cir. 1973)............... 46, 47
Lee v. St. Clair County School System,FT Supp. (N.D. Ala., July 18, 1975) 41
Louisiana v. United States,

380 U.S. 145 (1965) . ......................... 52
McDonnell Douglas Corp. v. Green,-----411 U.S. 792, 802 (1973) . . ................... 57
National Education Ass'n v. Board of School Comm'rs 
of Mobile County,-----483 F . 2d 1022 (5th Cir. 1973)...............  46, 48
Oatis v. Crown-Zellerbach Corp.,
-----398 F.2d 492 (5th Cir." 1968)................ 54
Pettway v. American Cast Iron Pipe Co.,-----494 F . 2d 211 (5th Cir . 1974) “"“ ............ 42, 52
Robinson v. Union Carbide Corp.,
-----538 F.'2d"352 (5th Cir7 1976)................  45
Rowe v. General Motors Corp.,-----457 F. 2d 348 (5th Cir. 1972)...............  42, 45

iii



Cases: Page(s)
Satterwhite v. City of Greenville,

557 F.2d 4l4 (5th Cir. 1977) (rehearing en
banc pending).................................  51

Singleton v. Jackson Municipal Separate School Dist.,
—  419 o r r n r  esttrcir i w m 9, 12, 16, is ,

23, 25, 39, 47
Stevenson v. International Paper Co.,

516 F . 2d 103 (5th Cir. 1975)..................  45, 59
Swann v. Charlotte-Mecklenburg Bd. of Education,
---- 40'2' u.'S'. i ■;7... .7.7:'..... 40

United States v. Coffeeville Consolidated School 
Dist.,356 F. Supp. 990 (N.D. Miss. 1973)............ 43
United States v. Georgia Power Co.,

474 F . 2d 906 (5th Cir. 1973).................. 52
United States v. International Longshoremen's Ass'n,
-----4WF72'a_497 (4th Cir 7 ”1972) 7777.............. 41
United States v. Jefferson County Bd. of Education,

372 F . 2d 836,883-85 (5th Cir. 196 6)........... 39
United States v. N.L. Industries, Inc.,
-----579 "F^'d"334 '(8th Cir". 1973).................. 45
United States v. Texas Education Agency 
(LaVega School System),
~  459 F'.2d 600"” 608 (5th Cir.1972).......... 28, 43
United States v. Texas Education Agency 
(Austin III),F . 2d ____ (5th Cir. 1977)................  54
United States v. United States Steel Corp.,

520 F.2d 1043 (5th Cir. 1975), cert denied,
429 U.S. 871 (1976)...........................  49, 59

Village of Arlington Heights v. Metropolitan Housing 
Development CorpT,

97 S. Ct. 55'5, 564 (1977).....................  55
Wade v. Mississippi Cooperative Extension Service,
-----372 F. Supp 126 w ~ t>. Miss. 1574) , aff' d', "528

F. 2d 508 (5th Cir. 1976).....................  40, 43, 44

IV



Cases Page(s)
Watkins v. Scott Paper Co.,

530 F .2d 115$ (5th Cir. 1976).............
Wheeler v. American Home Products Corp.,

F. 2d 15' E.P.D. 1[ 7957 (5th Cir.,
December 1~ T977).........................

45

54, 58

4 Constitution and Statutes:
Constitution of the United States

Amendment XIV................................  40
Education Amendments of 1972

Section 718, 20 U.S.C. § 1617................ 58
28 U.S.C. § 1291..................................  11
42 U.S.C. § 1981 ..................................  36, 37, 38,

41, 50, 51, 54
42 U.S.C. § 1983..................................  1, 7, 37,

50, 54
Civil Rights Attorneys' Fees Awards Act 

42 U.S.C. § 1988................. 58
Title VII of the 

42 U.S.C. §
Civil Rights Act of 1964, as amended 
2000e et seq.................... 1, 2, 4, 6,8, 36, 37, 38, 41, 42, 44, 46, 

49-55, 58

v



REQUEST FOR ORAL ARGUMENT

Plaintiffs-Intervenors-Appellants request oral argument. 
Oral argument is warranted in this appeal, because it presents 
novel issues about the relation between federal court 
monitoring of comprehensive school desegregation decrees and 
statutory rights afforded black school teachers by Title VII 
of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. At 
issue here is a new generation of problems growing out of the 
judicial disestablishment of de jure racially segregated school 
systems. The complex factual and legal bases of this appeal 
should be fully discussed, particularly the procedural 
tangle that includes a prior interlocutory appeal to this 
Court and the forced intervention of these black teachers in 
the Birdie Mae Davis case to assert their statutory individual
and class claims of employment discrimination.



STATEMENT OF QUESTIONS PRESENTED
1. Did the district court, which has retained jurisdiction 

over the Mobile County School desegregation case under a 1971 
decree containing Singleton provisions, commit error when it 
denied the Rule 23 motions of plaintiffs-intervenors, black 
school teachers, thereby refusing to allow them to advance 
class claims on behalf of other black professional employees 
pursuant to 42 U.S.C. §§ 1981 and 2000e at seq, notwithstanding 
unrebutted prima facie evidence of classwide racial discrimina­
tion caused by the defendants' promotion practices?

2. Did the district court err in dismissing the individual 
claims of plaintiffs-intervenors Foster and Buskey that they
had been denied promotions above the level of assistant principal 
in violation of their rights under 42 U.S.C. §§ 1981 and 2000e 
et seq and under the Singleton provisions of the ongoing school 
desegregation decree?

3. Did the district court err in denying plaintiffs- 
intervenors an award of their attorneys' fees and costs?



STATEMENT OF THE CASE

This appeal presents issues of great importance to 
black teachers in this Circuit who are employed in school 
systems subject to federal court desegregation orders. Chief 
among these issues is whether such black teachers, individ­
ually and as a class, notwithstanding the inclusion of faculty 
desegregation guidelines in comprehensive school desegregation 
decrees, should be entitled to enjoy the full panoply of 
statutory procedural and substantive rights afforded by 
Title VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. § 2000e et seq.

Although heard as a part of the Mobile County School 
desegregation case, this litigation alleging racially discrim­
inatory promotion practices actually began on Octover 5, 1973, 
when Edwin Foster filed an independent lawsuit under 42 U.S.C.
§ 1983 asserting that he and other black teachers in the Mobile 
County Public School System were being denied promotion to 
administrative and supervisory positions on account of their 
race. James E. Buskey, who like Edwin Foster is also a black 
assistant principal in the Mobile Public Schools, filed a 
charge with the Equal Employment Opportunity Commission on 
August 27, 1973, complaining that black professionals were 
the victims of racial discrimination with respect to pro­
motions above the level of assistant principal. R. II 127.
Mr. Buskey subsequently received a right-to-sue letter from 
the EEOC and filed an independent action in federal court,

1



which sought to bring individual and class claims similar to 
Mr. Foster's. R. II 123-29.

Through a long and involved series of procedural events, 
including interlocutory appeals to this Court,'*' both Foster 
and Buskey were required to bring their claims through inter­
vention in the Birdie Mae Davis case. Their independent 
actions were dismissed. The procedural history of these cases 
is detailed in this court's opinion deciding the interlocutory 
appeals. 517 F.2d at 1047-49.

Regarding James Buskey's contention that the dismissal 
of his independent Title VII action might somehow deprive him 
of the rights and remedies provided by that statute, this 
Court reassured the plaintiff-intervenor he would be entitled 
to "the full panoply of Title VII law as it has developed 
since the passage of the Act in 1964." 517 F.2d at 1049.

On remand, as a result of this court's instructions, the 
district court permitted Foster and Buskey to obtain discovery
of facts relating to their claims of a pattern and practice of

2racial discrimination against black teachers. The School

Davis v. Board of School Commissioners of Mobile County, 
517 F.2d 1044 (5th Cir. 1975), cert. denied, 425 U .S. 944 (1976).

2 By order dated February 24, 1975, the district court 
stayed the proceedings in the promotion action pending the 
outcome of the interlocutory appeals. R. II 228. Following 
remand, the court granted the motion of Foster and Buskey to rescind the stay order on June 17, 1976. R. Ill A 143.

2



Board's motion for protection from plaintiffs-intervenors' wide- 
ranging interrogatories was denied. R. Ill A 147.

On November 23, 1976, a motion was filed on behalf of the 
Birdie Mae Davis class renewing their petition for an order to 
show cause why the defendant School Commissioners should not be 
held in civil contempt for failing to comply with the faculty 
desegregation provisions of the 1971 school desegregation decree 
calling for non-discriminatory promotion practices. R. Ill B 
210-14. The previous contempt motion filed in 1974 had been 
summarily denied by the district court as premature. R. I 63-66. 
This Court affirmed that ruling in the interlocutory appeal.
517 F.2d at 1052. Accordingly, the 1976 contempt motion pointed 
to the Board's interrogatory answers as additional evidence that 
principals were being assigned to schools on a racial basis, 
i.e., white principals to white schools and black principals 
to black schools. The motion alleged that as a direct result 
of the racially segregated principal positions, promotion 
opportunities for black professionals are disproportionately 
fewer than those of white teachers. The contempt motion sought 
comprehensive prospective and compensatory relief for the class 
of all black teachers in the Mobile County Public School System.

The district court heard testimony on the complaints in 
intervention of Foster and Buskey on December 8 and 9, 1976.
At the close of this hearing, the judge asked the School Board 
to supplement the record with additional documents describing 
the Board's criteria and procedures for promoting professional

3



personnel. Additional information was filed by the School Board 
on January 13, 1977. R. Ill B 261. Upon the motion of Foster 
and Buskey, R. Ill B 395-97, the court granted leave for plain­
tiff s-intervenors to cross-examine the School Board representative 
concerning these additional documents. R. Ill B 398.

Meanwhile, on January 3, 1977, Mr. Buskey filed a motion 
asking the court to certify his complaint in intervention as 
a class action on behalf of the subclass of past, present and 
future black professional employees of the Mobile County Public 
School System and renewing Mr. Foster's earlier Rule 23 motion 
to the same effect. R. Ill B 236-38. As grounds, plaintiffs- 
intervenors pointed out that an earlier motion by the School 
Board to deny class certification had never been ruled on, that 
the court's prior refusal to allow Mr. Foster's complaint in 
intervention to proceed as a class action was based upon lack 
of evidence that other black teachers were being discriminated 
against, that the evidence adduced at the December 8 and 9, 1976, 
hearing made out a prima facie case of racial discrimination 
against the entire subclass of black teachers, and that Buskey s 
perfection of Title VII claims all provided additional reasons for 
certifying the class. The district court summarily denied this 
Rule 23 motion on January 25, 1977. R. Ill B 298.

Prior to ruling on the merits, the district court conducted 
additional evidentiary hearings on February 3, 1977, and 
September 9, 1977. These were necessitated by a series of 
documentary submissions supplementing the original record. The



School Board's additional documents about promtoion criteria 
and procedures have already been referred to. The court also 
allowed Mr. Buskey to submit an affidavit on January 3, 1977, 
summarizing the promotions to central office staff 
from 1971 through 1975. R. Ill B 239-60. Then, after the 
February 3, 1977, hearing, during which counsel for plaintiffs- 
intervenors cross-examined the School Board representative 
about its post-trial submissions, the district judge asked the 
School Board to submit still more information about the qualifi­
cations of persons who had been promoted. Upon receipt of this 
new information, the court forwarded it to counsel for plaintiffs- 
intervenors on July 6, 1977, and offered him the opportunity to 
cross-examine the School Board about the new data. R. Ill B 
401-07. On July 12, 1977, counsel for plaintiffs-intervenors, 
Foster and Buskey accepted the court's invitation for cross- 
examination. R. Ill B 408-10. Accordingly, a final hearing 
was conducted on September 21, 1977.

On October 25, 1977, the district court entered findings of 
fact and conclusions of law dealing solely with the individual 
claims of Mr. Foster and Mr. Buskey. R. Ill B 420-51. The court 
ruled that neither plaintiff-intervenor had been discriminated 
against and issued an order dismissing their individual claims 
on the merits. R. Ill B 452-53. Two days later, the court entered 
separate findings of fact and conclusions of law dealing solely 
with the class claims against the School Board's assignment and 
promotion practices. R. Ill B 454-61. It found that the defen­
dants were violating the 1971 desegregation decree and the Fifth



Circuit's faculty desegregation guidelines in a number or respects. 
But, by order entered the same date, the court required the School 
Board to provide prospective changes only. No retrospective 
compensatory remedy was provided black teachers in the class.

In its October 25 Foster-Buskey findings, the trial judge 
interpreted this Court's opinion in the interlocutory appeal as 
approving the district court's earlier conclusion that Foster 
and Buskey should under no circumstances be allowed to advance 
class claims. It reaffirmed its prior pronouncement to the 
effect that, because, Davis is already a class action, teacher- 
intervenors cannot be allowed "to superimpose a class action 
upon a class action." R. Ill B 420-21. The presence of James 
Buskey's Title VII claims made no difference. Referring to 
this Court's guarantee that, though required to intervene in 
Davis, Mr. Buskey would still be entitled to "the full panoply 
of Title VII law," the district judge concluded that such 
reassurances applied only to plaintiff-intervenor's individual 
claim and did not authorize him to proceed on behalf on the 
subclass of black teachers. R. Ill B 421.

Relying, apparently, on its conclusion that the class claims 
should be severed entirely from the individual claims, the dis­
trict court refused to consider in connection with the claims of 
Mr. Foster and Mr. Buskey evidence that principalships in the 
system were racially segregated and statistical evidence that 
black teachers as a class had received disproportionately few 
promotions above the level of assistant principal. The findings



*

6

of fact indicate that, to the extent Mr. Foster and Mr. Buskey 
were victims of this class-wide discrimination, they would 
receive prospective relief under the separate findings and order 
issued two days later in Birdie Mae Davis. R. Ill B 430.

The court then proceeded to what purports to be a comparison 
of the plaintiff-intervenors' objective qualifications with 
those of persons who were promoted to vacancies for which they 
were considered. The findings of fact set out in separate 
paragraphs the formal education, teaching certification and 
experience of Mr. Foster, Mr. Buskey and each of the promotees. 
Without attempting any standardized comparison of these objective 
qualifications, the court simply stated its conclusion that, 
with respect to both intervenors, there was sufficient evidence 
of objective measurement to overcome suggestions of racial 
bias in the School Board's admitted use of subjective stan­
dards. R. Ill B 427, 448.

The court's conclusions of law acknowledge the controlling 
caselaw of this circuit requiring that promotion standards and 
procedures of public school systems be objective, leaving 
no room for racially discriminatory considerations. R. Ill 
B 449. But, conceding there were problems, the court found 
that the standards and procedures used in Mobile County "are 
not so infirmed [sic] as to be classified as racially discrim­
inatory in their use considerations [sic], the criteria having 
sufficient objective measurement qualities so that the plaintiffs 
are not entitled to relief under Title 42, U.S.C.A., § 1983."

7



R. Ill B 450.
In any event, the conclusions of law announced that the 

"ultimate question of fact" is whether the School Board's 
refusal to promote Mr. Foster and Mr. Buskey was "racially 
motivated". Id. The court held that plaintiffs-intervenors 
had failed to prove this requisite racial motivation, so that 
neither was entitled to prevail on the merits of his individual 
claim. R. Ill B 451. In this regard, although the district 
court makes reference to Mr. Buskey's Title VII claim earlier 
in its findings, R. Ill B 421, 429, 430, Title VII of the 
Civil Rights Act of 1964 receives no mention whatsoever in the 
conclusions of law.

Neither are Title VII and its substantive standards men­
tioned in the findings of fact and conclusions of law issued 
on October 27, 1977, under the general style of the Birdie Mae 
Davis case. These findings are introduced with a statement 
that they are being entered "[p]ursuant to the retained juris­
diction for monitoring purposes," and are based on various 
matters of evidence and argument the court has received from 
time to time, "including the Foster and Buskey cases." R. Ill 
B 454. The court does not refer specifically to the motion of the 
Davis class plaintiffs for contempt proceedings, and the injunction 
accompanying these findings does not rule on the contempt motion.
R. Ill B 462-63. Rather, according to the October 27 opinion, 
its purpose is "to supervise and 'fine tune' the compliance by 
the board of the terminal desegregation order...." Then the 
district court makes the following findings:

8



(1) Since entry of the 1971 desegregation decree, the 
School Board has "fairly well maintained" a white-black teacher 
ratio of 60-40 at each school in the system, a 75-25 ratio
of white to black principals in the system, and an 85-15 ratio

3of whites to blacks on the central office staff. R. Ill B 454-55.
(2) Concerning the claims of racial assignment of principals:

The School Board has apparently followed 
the practice of assigning white principals to 
formerly white schools and black principals to 
formerly black schools except in those instances 
where formerly white schools have become pre­
dominantly black and formerly black schools have become predominantly white.

R. Ill B 455. The court opined that such a racial assignment 
practice "can be argued to result in the denial of a right to 
promotion by some unspecified number of persons. It is demon­
strated in this case only as a statistical incident." Id. 
(emphasis added).

According to the 1970 federal census, 327o of Mobile 
County's population is black. According to the School Board's reg­
ular semi-annual report to the district court filed on or 
about December 1, 1976, 44% of the School children attending public schools in Mobile County are black.

The district court is mistaken in stating that plaintiffs 
in Birdie Mae Davis have sought to maintain the 60-40 teacher 
ratio and to alter racial ratios among principals and central 
staff. R. Ill B 455. There is nothing in the record even 
suggesting plaintiffs have taken such aposition. To the contrary, 
the motion for additional relief filed by the Birdie Mae Davis 
plaintiffs^on March 21, 1975, explicitly challenges the use of 
any such rigid ratios,citing Carter v. West Feliciana Parish 
School Bd.,432 F.2d 875 (5th Cir. 1970). The proposed findings 
of fact and conclusions of law submitted to the district court 
by Foster and Buskey following their trial also denounces the 
maintenance of any ratios by the defendants, saying: "To the
contrary, both Singleton and Carter direct these defendants to 
promote and assign professional personnel on a racially non- 
discriminatory objective basis."



(3) Concerning the promotion procedures and criteria 
of the defendants:

Qualifications for promotion to principal 
or assistant principal are in large part measured 
objectively as found but it can be argued they are 
in part affected by subjective considerations.
As pointed out in the Foster Buskey cases, except 
statistically, the subjective measurements are 
supportative [sic] of the objective determinations

R. Ill B 456 (emphasis added).
(4) The maintenance of an 85-15 white to black ratio on

the central office staff
may be ascribed to what might be a miscon­
ception by the board that the original 
ratios were to be maintained. However, 
the evidence shows that merit considerations 
are the dominant motivations for such 
promotions ....

Id.
Based on these findings, and "to avoid the possibility 

of bias creeping into the selection processes for promotion 
to principalships and central staff," R. Ill B 456-57, the 
court ordered the defendants:

(a) to eliminate subjective criteria from the 
promotion process;
(b) to establish a specific posting and bidding 
procedure for filling all administrative vacancies 
in the system;
(c) to report on an annual basis the race and 
qualifications of each person applying for admin­
istrative vacancies;
(d) to submit within sixty days for the court's 
approval written, objective criteria for use in 
determining future promotions;
(e) to report to the court within ninety days a 
proposal for eliminating a continued racial identi 
fiability of schools by reference to the race of 
their principals. R. Ill B 457-58.



However, the district court provided no remedial relief for the 
black teachers in the class who may previously have been adversely 
affected by the unlawful practices it was attempting to correct 
prospectively only.

Plaintiffs-intervenors Edwin Foster and James E. Buskey 
filed notice of appeal on November 18, 1977, from the order 
entered October 25, 1977, dismissing their complaints in 
intervention, including their class and individual claims and

4their claims for attorneys' fees and expenses. R. Ill B 464.
This Court has jurisdiction of this appeal pursuant to 28 
U.S.C. § 1291.

STATEMENT OF FACTS

A. Introduction
During the 1975-76 school year, the Mobile County Public 

School System operated 84 schools, including a kindergarten, 
a day-care school, a continuous learning center, a special 
education school , 48 elementary schools, 15 middle schools

^ The Davis plaintiffs have not appealed from the October 27, 
1977, findings and injunction, because it does not purport to 
rule on their motion for contempt proceedings or any other 
petition they have filed. By letter dated November 16, 1977, 
undersigned counsel for Birdie Mae Davis, et al. asked the^ 
district judge to amend his October 27, 1977,^order explicitly 
to rule on plaintiffs' motion to show cause, if that was in 
fact the court's intention. No amendment was forthcoming, and 
we presume the contempt motion remains pending.



and 16 high schools. The school system enrolled 64 ,451  students, 
of whom 28,718 (44 .5670  were black. See April 15, 1976, School 
Board report to the court. About 40% of the black school children 
in the system were attending all-black schools. There were 2 

all-black high schools, 4 all-black middle schools and 8 all­
black elementary schools (ranging from 907o to 1007o black) .

For the 1975-76 school year, the defendants employed 2,964 
teachers, of whom 1,194 (40.287o) were black. Id. There were 
79 principals, of whom 23 (29.1%) were black. P. Exs. 19 and 20. 
Of 69 central office professional administrators at or above 
the level of principal, only 8 (11.6%) were black. P. Ex. 16.

The comprehensive desegregation plan approved by the 
district court in 1971 ordered desegregation of school faculties 
according to the guidelines of Singleton v. Jackson Municipal 
Separate School District, 419 F.2d 1211 (5th Cir. 1970). As 
required by Singleton, at the beginning of the 1971-72 school 
year the School Board reassigned teachers in the system so that 
the white-black teacher ratio at each school was 60-40, approxi­
mately equal to the system-wide teacher ratio. However, even 
after the 1971-72 school year, the Board continued to maintain 
a rigid 60-40 ratio of white to black teachers at each school. 
Indeed, the School Board's semi-annual reports to the district 
court still list the number of "black" and "white" vacancies 
that opened at each school during the reporting period.

12



B . Racial Segregation of Principal Positions
The position of principal is a segregated job classification 

in the Mobile County Public School System. That is, principals 
are assigned to schools on the basis of their race, according 
to the racial make-up of the student body at the particular 
school.

Prior to 1970, black professional employees were allowed 
to hold principal positions only at all-black schools. Only 
whites were allowed to hold the principal jobs at schools that 
had substantially all-white student bodies. See P. Ex 17.
As of the 1975-76 school year, blacks still were restricted 
to principal positions in those schools that were substantially 
all-black, with only four exceptions. Those exceptions are 
the black princpals of four historically all-black schools in 
the rural attendance zones whose student bodies since 1970 
have changed to majority white: Adams, Dixon, Lott and St. Elmo.
In the metropolitan attendance areas, however, blacks are today 
not even allowed to hold principal positions in the historically 
black schools if through desegregation they have managed to 
acquire a significant number of white students. Thus Hillsdale 
(75% white) , Hall (40%^hitq),Trinity Gardens (21%, white) are all 
historically black schools where the principal job is now reserved 
for whites. Conversely, principalships at the historically white 
schools remain ear-marked for whites only, unless they have 
acquired substantially all-black student bodies since desegre­
gation (i.e., 85%, black or higher). Thus blacks are now allowed

13



to be principals at the following historically white schools: 
Craighead (92% black) , Glendale (89% black), Old Shell Road 
(877o black) and Prichard (90% black) .

These hard facts of job segregation, acknowledged in the 
district court's findings, are the unavoidable conclusions 
drawn from the School Board's record of assigning principals 
since 1971. Plaintiffs' Exs. 19 and 20 list separately schools 
in Mobile County that have majority white and majority black 
populations, according to the Board's April 15, 1976, report 
to the district court. They also indicate the name, race and 
appointment date of each principal assigned to each school 
since 1971. Asterisks designate those currently majority white 
schools which were all black under the dual system and those 
majority black schools which were all-white under the dual 
system. The racial assignment patterns described above are 
made obvious by these summaries.

The racial assignments of principals did not occur by 
accident. Mr. Edward White, Assistant Superintendent for
Administration, testified on direct examination:

There are some communities that are racially 
mixed, different ratios, and these communities 
would demand a special kind of person. So the 
staff attempts to place in a community a person 
who can give the best leadership to that 
particular school and that particular community 
for the purpose of enhancing the development of 
public schools in Mobile, and for the purpose 
of maintaining stable schools in Mobile.

14



Tr. VI 225 (emphasis added). Further, on direct, Mr. White 
admitted that reassignments of principals "sometimes parallel 
change in the racial composition of student bodies." Tr. IV 
287. He explained: "Some principals may be more flexible and
deft at handling these kinds of problems than other principals." 
Id. Later, during cross-examination, Mr. White was asked 
specifically if the above-described racial considerations were 
in operation. Tr. IV 325-26. When School Board counsel
objected, the trial judge interrupted him:

THE COURT: Mr. Phillips, I think that on
redirect you had better address 
yourself to Mr. White, if you 
want to, because the testimony 
heretofore presented to this 
Court indicates that in each 
instance where a school became 
from all-white to predominately 
black a black principal was 
assigned to it, and I would 
like an explanation of that myself....

Tr. IV 326. The court then entered into a dialogue with Mr. White 
about the racial assignment policies, getting him to admit that 
a principal's race might be one of the subjective factors in the 
staff's determination of "who can best stabilize the school."
Tr. IV 328-29.5

On further cross-examination, Mr. White conceded that 
all-black Toulminville High School might have had a better chance 
of keeping some of the white students previously assigned to it 
had there been a white person appointed as principal of the 
school. As an historically black school which has remained pre­
dominantly black or all-black, Toulminville has been administered only by black principals. Tr. IV 337.

15



Remarkably, counsel for the School Board argued to the 
district court that nothing in the desegregation decree or in 
Singleton prohibits the assignment of only white principals to 
predominately white schools and only black principals to pre­
dominately black schools, so long as the administrative staff 
and faculty of each school, considered as a whole, was racially 
integrated. Tr. IV 132-34. Mr. White confirmed this assignment 
policy, saying:

What we have attempted to do, in many of 
these cases, is to assign a black person 
if the principal is white, or a white 
person, if the principal is black, in 
the local school offices.

Tr. IV 261.6

C. The Adverse Racial Impact of the School 
® Board's Policies for Selecting Principals

An immediate consequence of the racial designation or
segregation of the principal positions in the Mobile County

•  Public School System has been a disproportionate unavailability 
of promotion opportunities for black professional employees.
Among the majority white schools, only four historically

• black rural schools are available for black principals. P. Ex. 19.

In fact, however, Mr. White had to admit that at some all-black schools, such as Toulminville High School, Mobile 
County Training Middle School and Booker T. Washington Middle 
School, only blacks had been assigned to both assistant principal 
and principal positions. Tr. IV 335-38.

e
16



Among the majority black schools, only historically black
Burroughs (68% black) and Williamson High School (79% black)
and the 17 schools with black enrollments of 85% or higher are
available for black principals. P. Ex. 20. Thus, only 23
(29%) of the 79 principalships in the system7 are open to blacks.
While 40% of all teachers in the system are black, only 29% of the
principals are black. P. Exs. 19-20. From the 1971-72 school
year through 1976, only 17 (23%) of the 73 vacancies that have
occurred in principal jobs throughout the system have been avail-

J 8able for blacks. Id.
An analysis of the defendants’ answer to plaintiffs-inter- 

venors' interrogatory 5b-g (R. Ill B 172-77) reveals that, during 
the school years 1971-72 through 1975-76, 31 professional employees 
were promoted from assistant principal, teacher, counselor or 
intern to a principalship, of whom only 6 (19.3%) were black.

Not included are the five special schools (Title I kinder­
gartens, day-care centers and continuous learning center), whose 
directors or principals are also white.

O Because the district court apparently misunderstood the 
position of plaintiffs and plaintiffs-intervenors Foster and 
Buskey concerning the maintenance of racial ratios, R. Ill B 455, 
we repeat here verbatim footnote 1 on page 6 of the proposed 
findings of fact submitted by undersigned counsel at the conclusion 
of the Foster-Buskey trial:

Plaintiffs do not mean to imply by this 
analysis of available principal vacancies 
according to the racial designations developed 
by the School Board that such racial designations 
or other form of segregated jobs would be lawful 
if only the number of black and white promotion 
opportunities were equalized.



Testimony at trial revealed that two of the promoted blacks were 
formerly principals in the dual system, had been demoted pursuant 
to the desegregation orders of the district court, and were there­
fore required by the provisions of Singleton to be given the 
right of first refusal to subsequent principal vacancies. Tr. IV 
183-84, 293. A third black promotee had also previously been a 
principal, but he had been demoted to assistant principal prior 
to desegregation. Tr. IV 293. If these three former black 
principals are not considered, only 10.1% of the aforesaid pro­
motions were given to black professional employees. The inter­
rogatory answers also show that all of the black promotees had 
to achieve the level of assistant principal before being promoted 
to principal, whereas eight whites were promoted directly to 
principal jobs from positions as teachers, counselors or interns. 
R. Ill B 172-77.

D. Adverse Racial Impact of the School Board's Policies and Practices for 
Selecting Central Office Staff

Prior to the 1971-72 school year, there had never been a 
black person assigned to the central office staff of the Mobile 
County Public School System at or above the level of assistant 
superintendent. Tr. IV 303. Pursuant to the July 1971 desegre­
gation plan, p. 16-D, the Board promoted Lemuel Taylor, a black 
principal, to the position of Assistant Superintendent for Special 
Services. This was a new position created for the specific pur­
pose of having at least one black assistant superintendent.
Dr. Taylor remained the only black assistant superintendent until 
August 1976, when he was transferred to the position of Assistant 
Superintendent In Charge of Personnel, and Mrs. Hazel Fournier,



who is black, was promoted to Dr. Taylor's old position of 
Assistant Superintendent For Special Services. P. Ex. 18;
Tr. IV 302-03.

With respect to all professional administrative positions 
on the central office staff at or above the level of principal, 
the evidence shows as follows:

No. of Vacancies No. of VacanciesYear Filled Filled by Blacks
1971-72 21 2
1972-73 11 0
1973-74 13 0
1974-75 7 0
1975-76

Totals
17
W

1
5 (7.2%)

R. Ill B 239-40. As of the 1975-76 school year, blacks occupied 
only 8 (11.67o) of the 69 professional administrative positions 
on the central office staff at or above the level of principal. 
P. Ex. 16.

The continued under-utilization of black administrators 
must be considered in light of the promises made by the School 
Board in the 1971 desegregation plan to desegregate the central 
office staff. Page 16-B of the desegregation plan, approved by 
the district court in July 1971, provides as follows (emphasis 
added):

4. The Mobile Board of School Commissioners 
pledges the withholding the [sic] filling of any 
vacancy until an exhaustive search has been made 
and so evaluated by the professional staff in 
the selection of further professionals of the

19



opposite race to continue the desegregation of 
the [central office] staff.

5. The Board of School Commissioners pledges 
that the selection of staff members will be based 
on a non-discriminatory and an objective manner 
encompassing performance, accountability, and 
merit as so determined by fellow professionals.

6. The Board of School Commissioners will 
apprise the Court of the beginning and end results 
for the 1971-72 school year, specifying specific 
[sic] vacancies, procedure for employment, and 
the end results.

The record in this case shows that the district court has not 
even been apprised, as promised, about the beginning and end 
results of central office staff desegregation for the 1971-72 
school year. R. Ill B 231-33. As the following section of 
this brief indicates, neither has the Board developed a written, 
non-discriminatory and objective procedure for selecting central 
office staff personnel.

E. The School Board's Standards and 
Procedures for Promotion to 

Principal and Central Office Staff
The first thing to be noted about this record is what is 

not the School Board's policy for promoting professional per­
sonnel to principalships and central office staff positions.
The post-trial documentary submissions of Mr. White, R. Ill 
B 261-394, contain criteria, procedures and forms for screening 
teachers seeking to enter the recently established administrative 
intern program. They have not been used to screen professional 
employees being considered for promotion to principalships and 
high-ranking central office staff positions. Tr. V 18-20.



Mr. White testified, when he was being cross-examined about the 
post-trial submissions, that nô  forms had been used in the latter 
promotional process. Tr. V 20. Other documents in the post-trial 
submission of Mr. White apply only to the processing of transfer 
requests laterally from position to position in the system.
Tr. V 23-4.9

Rather, as Mr. White conceded (Tr. V 4), the School Board's 
written policy governing promotions to higher administrative 
positions, including principal and central office staff admin­
istrator, is the statement approved by the Board on June 28, 1967, 
P. Ex. 3, as modified by the Board on July 10, 1974, R. Ill B 
158-60. The salient features of this policy are as follows:

The Board has maintained "an open-door policy in identifying, 
in appraising and in recommending persons to fill leadership 
positions." P. Ex. 3, p. 68.1. Where possible, professional 
personnel already employed by the Mobile County Public School 
System are given a priority for promotion over persons from 
outside the system. Id., p. 68. A.

It has not been necessary for teachers formally to apply 
in order to be considered for promotions. Recommendations for 
promotion are accepted from virtually anyone: principals,

Yet, as Mr. White's cover letter to the district judge 
shows, the court had directed the assistant superintendent to 
submit additional documents "concerning the promotion and/or 
transfer procedures of the Mobile County Public School System." 
R. Ill B 261 (emphasis added).

21



administrative staff, parents, teachers or any other citizen.
Tr. IV 253-57. All persons recommended for promotion are 
contacted to determine whether or not they are interested.
P. Ex. 3, p. 68-B.

Once a teacher is recommended for promotion or otherwise 
applies for consideration, it is School Board policy to maintain 
an active file on his or her application for all future vacancies, 
unless the application is withdrawn. Tr. IV 257. Thus, e.g.,
Mr. White testified that the original expressions of interest 
in promotions by Mr. Foster and Mr. Buskey were kept active 
as on-going applications, so that they were considered for all 
vacancies in principalships and central office staff during the 
periods relevant to this action. Tr. IV 266-68.

The Board's promotion policy callls for the announcement 
of vacancies in the School System's Weekly Bulletin, "if at all 
feasible." R. Ill B 160. But the announcement of vacancies 
does not mean that teachers must apply for specific vacancies 
in order to be considered for them. They may still be recom­
mended by third persons, and their prior general expressions of 
interest in promotions will cause them to be considered even for 
announced vacancies. Tr. IV 297-98.

Frequently when vacancies occur in principalships, they 
are filled by lateral transfer of another principal or by a 
series of such lateral tansfers. The vacancies created by 
these transfers are not usually announced in the Weekly Bulletin 
before they are filled. This sets up a "domino" effect, which 
makes it impossible for teachers to apply for specific vacancies

22



even if they want to. Tr. IV 203-04, 299.
The 1967 statement of Board policy regarding promotions 

identified as criteria for measuring applicants' qualifications 
their scores on the National Teachers Examination and the 
National Examination on Administration or Supervision, per­
formance evaluations by their previous supervisors, staff 
evaluations based on "seminars and interviews" with the appli­
cants, the evaluated results of a long-hand essay examination, 
and a "demonstrated interest in, loyalty to belief in public 
education as a foundation to a free, democratic society."
P. Ex. 3, p. 68. A. However, these specific criteria are no 
longer applied.

Apparently in response to the Singleton requirements, see 
R. Ill B 158-59, the following criteria are now applied in 
selecting administrative personnel in the Mobile County Public 
School System:

a. Degree and certificate;
b. Experience;
c. Job performance;
d. Staff interviews;
e. Transcripts;
f. Letters of Recommendation; and
g. Letter of Application.

R. Ill B 156. But no standarized format and no specific computed 
weights have been developed to measure these criteria. R. Ill 
B 157. The job performance of the candidate is "determined by 
Superintendent and Administrative staff in formal session based 
on evaluations and observations" they have made. Id. Assistant



Superintendent White testified that the deputy superintendent 
and all the assistant superintendents comprise a "screening 
committee" who make recommendations to the superintendent about 
which candidate should be promoted. Tr. IV 300-01. In the final 
analysis, "[t]he person believed to have achieved the highest 
level of performance" is recommended for promotion. R. Ill B 
157. Mr. White further stated that the "attitude" of the candi­
dates is an important consideration, specifically, whether 
they have conformed to the policies of the central administration 
and how well they "have worked with the administration of the 
system and have worked with the communities in which they have 
already served." Tr. IV 256. The final judgment of the central 
office screening committee is fundmentally subjective:

THE COURT: How much of your consideration
is based on subjective considerations?

A: We would look at the situations where a
vacancy exists, and using all of the other 
criteria that we have talked about, which 
is objective, attempt to ascertain in staff whether or not that person who, or those 
persons who are being considered, would be able to fit into a situation and make the 
situation stable for the benefit of the 
education of the students who are in that school.

Now that would be the subjective part of it, as I see it.
Tr. IV 280.

Although technically the administrative staff only makes 
promotion recommendations to the School Board, which makes 
the final decision, in actual practice the staff's recommendations 
stick. Dan Alexander, President of the Mobile County Board of 
School Commissioners, testified that in the two years he had been



on the Board, all of the staff's recommendations for promotions 
to principal and central office positions had been approved.
Tr. IV 125, 129. Indeed, Mr. Alexander admitted that he was 
"not really" familiar with the promotion policies of the system. 
Tr. IV 126-27. The superintendent's staff presents the Board 
with "a pretty brief summary" of the educational and personal 
backgrounds of candidates for principalship, which Mr. Alexander 
said "is not really sufficient for us to make a decision on 
whether or not to hire somebody." Tr. IV 125-26. He said 
the Board gets "a little more indepth discussion of the back­
ground" of the persons recommended by the staff for central 
office positions. Tr. IV 128. But, again, the Board has 
approved all of these recommendations as well. Mr. Alexander 
testified that the Board had never suggested that the staff 
assign principals according to the racial makeup of the 
schools, Tr. IV 135-36, and he was unaware that only 11% of 
the central office staff were black. Tr. IV 137-38. However, 
Mr. Alexander testified, during his tenure in office, the 
School Board had never discussed the Singleton requirements 
and had never reviewed the system's promotion practices for 
compliance with the school desegregation order. Tr. IV 131,138.

F. The Applications of 
Edwin Foster and James E. Buskey

Edwin Foster is presently employed by the Mobile County 
School Board as assistant principal and teacher at Phillips 
Middle School. He earned his bachelor's degree with a major

25



in science and mathematics from Alabama State University in 1950. 
He earned a Masters of Education degree from Alabama State 
University in 1956, at or about which time he was awarded a 
Class A superintendent-principal certificate from the State 
of Alabama. P. Ex. 24, R. Ill B 179."^ In 1976 he was awarded 
a Class AA certificate of administration from the University 
of Alabama. IdL Mr. Foster was employed from 1950 to 1963 
as a teacher and coach at (all-black) Central High School in 
Mobile, and from 1964 to the present he has been an assistant 
principal at first (all-black) Hillsdale Heights High School 
and (previously all-white and now integrated) Sidney Phillips 
Middle School. Id.

James E. Buskey earned a bachelor's degree in secondary 
education from Alabama State University in 1959, where he 
graduated fourth in a class of 250 students. P. Ex. 1. He 
received a fellowship from the National Science Foundation to 
attend the University of North Carolina, where he was awarded a 
masters degree in teaching mathematics in 1963. Id. In August 
1973 he was awarded an Ed.S (Educational Specialist) degree 
from the University of Colorado, specializing in urban admin­
istration. Id. From 1959 to 1962, Mr. Buskey taught mathematics 
at public schools in Alabama and Mississippi. He was hired by

The School Board's answers to interrogatories, R. Ill 
B 179-89, erroneously indicate that Mr. Foster has only a certifi­
cate in secondary education. Mr. Foster testified that, in 
addition, he has been awarded a certificate in administration.
Tr. IV 188, 223-25. Assistant Superintendent White agreed that 
Mr. Foster has the requisite state certificate in administration. Tr. V 17.

26



#

0

t

the Mobile County Public School System in 1963 and taught mathe­
matics at (all-black) St. Elmo High School for three years. He 
was made assistant principal at (all-black) Toulminville High 
School in 1966, serving in that capacity until 1972, when he 
took a sabbatical leave of absence to pursue further graduate 
studies at the University of Colorado. Id.

When Mr. Buskey returned from the University of Colorado 
in 1973, he was transferred away from Toulminville High School.
Mr. Buskey elected to contest his transfer under the Alabama 
State Teacher Tenure Act, and, as a direct result of this trans­
fer contest, the School Board cancelled his contract of employment 
on October 3, 1974. R. Ill B 416. On April 6, 1977, the Alabama 
Court of Civil Appeals ruled that the Board had violated Mr. Buskey's 
rights under the Teacher Tenure Act and ordered him reinstated 
with back pay. R. Ill B 412-19. The Supreme Court of Alabama 
denied the School Board's petition for writ of certiorari on 
June 24, 1977, and Mr. Buskey returned to the Mobile County Public 
School System as Assistant Principal at Williamson High School 
at the beginning of the 1977-78 school year.

Both Mr. Foster and Mr. Buskey testified that in the mid-60's 
they had indicated their desire to be considered for promotion to 
higher administrative positions in the system and that they 
understood their applications to be on-going and continuous, 
pursuant to the School Board's announced "open-door" policy.
Tr. IV 29, 31, 188. Assistant Superintendent White confirmed that the 
applications of plaintifffs-intervenors were kept continuously 
active and that both men were considered thereafter for all pro­

27



motional vacancies in the system. Tr. IV 36-37, 257, 266-68.
But neither plaintiff-intervenor has been promoted above the 
level of assistant principal. The evidence shows that, according 
to those criteria which can be objectively compared, Mr. Foster 
and Mr. Buskey both were better qualified than most of the persons 
who have been promoted to principal and to high-ranking central 
office staff positions since 1971. As previously noted, see p.23 
supra, the School Board uses no standarized method for evaluating 
even those qualifications of candidates which can be quantified.
In its findings of fact, the district court made no attempt either 
to weigh in a standarized fashion the education, certification, 
administrative and teaching experience of the candidates, which 
are described at length in the opinion. One set of numerical 
weights that has been previously suggested for such a purpose by 
this Court are those set out in Appendix C to United States v. Texas 
Education Agency (LaVega School System), 459 F.2d 600, 608 (5th 
Cir. 1972). Table I and Table II below summarize, respectively, 
for principal vacancies and for commensurate central office posi­
tions, during the years 1971-75, the qualifications of plaintiffs- 
intervenors Foster and Buskey and those of white persons who were 
selected for the positions, according to the numerical scale pre­
scribed in Part 2 (Principals) of Appendix C of LaVega:̂

■^It can fairly be argued that these numerical weights are not 
strictly adaptable to measuring qualifications for central office 
staff positions. E.g., the position of director of school plant 
construction may require an architectual or engineering background 
that is not coincident with the requirements for principalships or 
other education supervisory positions. However, the great majority 
of persons on central staff are professional educators, not archi­
tects or engineers, and the LaVega standards for measuring principals 
are the most nearly applicable ones available in the caselaw.

28



TABLE I 12

• VACANCIES FILLED IN PRINCIPALSHIPS BY WHITES 
COMPARED TO FOSTER AND BUSKEY

Prior Exp. Exp.
Name Pos. Certif. Teach. Adm. Total
1971
Edwin Foster Asst Prin 70 70 70 210
James Buskey Asst Prin 70 30 50 150
Lewis Copeland Asst Prin 70 15 0 85
Robert Boone Teacher 20 15 0 35
Tina Brown Teacher 70 30 0 100
Margaret Lyon Prin
Ben Glover Asst Prin 70 10 50 130
Charles Smith Asst Prin 70 20 30 120
Howard Vaughn Asst Prin 70 20 20 110
R. B. Taylor Prin
C. D. Anderson Asst Prin 70 35 10 115
Leo Brown Out of System 70 15 50 135
Ed Phillips Prin 70 40 10 120
Nancy Burnett Asst Prin 70 40 0 110
Derthia Taube Prin
1972-73
Edwin Foster Asst Prin 70 70 80 220
Guy Fleming Asst Prin
Robert Schwartz Asst Prin
Lloyd Black Prin 70 40 90 200
Billy Salter Asst Prin 70 63 15 148
Tom Jones Asst Prin
Otis Brunson Prin 70 20 70 160
Ben Glover Prin
J.T . Funderburk Prin
H.R. Shoemaker Prin 70 30 40 140
Noah Lambeth Prin

12 The sources of information used in Tables I and II for (determining
the qualifications of applicants are the School Board's answers to inter­
rogatories, R. Ill B 172-89, and the post-trial document submissions by 
both Mr. Buskey and the School Board, R. Ill B 239-40, 258-60, 401-17, some 
of which are set out in the court's findings of fact, R. Ill B 424-48.
In reviewing these sources, it should be kept in mind that total years 
experience and years administrative experience indicated therein are 
cumulated as of the respective dates the documents were submitted to the 
district court, i.e., 1976 in some instances and 1977 in others. 
Accordingly, to compare qualifications of candidates as of the time of 
the vacancy studied, appropriate deductions must be made from the experi­
ence totals according to the year in which the particular vacancy 
occurred. See Tr. IV 111-15.

29



Prior Exp. Exp.
Name Pos . Certif. Teach. Adm. Total
1973-74
Edwin Foster Asst Prin 70 70 90 230
James Buskey Asst Prin 70 30 60 160
Frank Wood Prin 70 35 70 175
Joe West Asst Prin 70 40 20 130
Otis Brunson Prin 70 20 80 170
Leo Brown Prin 70 15 70 155
Paul Sousa Asst Prin 70 40 30 140
Henderson Young Prin 70 55 100 225
1974-75
Edwin Foster Asst Prin 70 70 100 240
James Buskey Asst Prin 70 30 60 160
George Davis Out of System
Mona Girby
Sara Wright Asst Prin
Ruth Boyd
Tommy Knight Asst Prin
Jean Fleming
1975-76
Edwin Foster Asst Prin 70 70 110 250
James Buskey Asst Prin 70 30 60 160
Tom Towey Prin 70 50 160 280
Larry Moons Counselor
Tina Brown Prin 70 30 40 140
Nell Kennamer Teacher 70 95 0 165
Charles Downey Intern
Robert Skinner Asst Prin 70 20 30 120
Mary Botter Teacher 70 15 10 95
Pauline Essary Teacher
Anna Clausen Coordinator 70 120 30 220
Ed Phillips Prin 70 40 50 160
Lewis Copeland Pr in 70 15 40 125
Fred Fendley Teacher 70 50 10 130
Albert Stewart Asst Prin 70 60 50 180
Frank Schneider Asst Supt
Guy Fleming Prin
Lee Shoquist Asst Prin 70 45 40 155
Ida Bell Phillips Prin 70 75 70 215
Travis Wharton Pr in
Billy Salter Prin



TABLE II
VACANCIES FILLED IN CENTRAL OFFICE POSITIONS BY WHITES 
COMPARED TO FOSTER AND BUSKEY

Name
Pos . 
Filled Certif.

Exp. 
Teach.

Exp. 
Adm. Total

1971
4 Edwin Foster 70 70 70 210

James Buskey 70 30 50 150" White Asst Supt 30 45 30 105
Bushong Director 70 35 105
Haskew Coordinator 70 130 50 250
Keeney Coordinator 0 0 0 0

• Clardy Asst Supt 70 35 30 135
Woods Supervisor 30 20 20 70
Benson Asst Supt 70 35 70 175
Lambert Driector 20 0 0 20
Laurendine Asst Dire.
Copeland Sec. Off. 70 55 140 265

# Catchot Supvr
Callahan Supvr 30 10 0 40
Champlin Coord. 30 125 40 195
Dewitt Supvr. 70 75 0 145
Nesbit Supvr.

• 1972
Edwin Foster 70 70 80 220

Wooten Supvr.
Peary Coord. 70 50 30 150
Doherty Adm. Asst
Smith Director 70 20 40 130

• Biggs Supvr
Clausen Supvr 70 120 0 190
Pope Director 70 0 60 130
Temonia Supvr
Schlichter Director 30 10 30 70
Russell Spec. Prin

• Syltie Log Off. 70 5 140 215
1973Edwin Foster 70 70 90 230* James Buskey 70 30 60 160

Quimby Supvr 30 85 20 135
• LoDestro Dep. Supt

James Adm. Asst 70 30 120 220
Magnoli Coord 30 10 10 50
Newton Asst Supt 70 15 40 125
Nelson Asst Dir 20 0 0 20
Paul Director 20 0 0 20

• Langele Woodsman
Harkin Supvr

31



Name
Pos . Filled Certif.

Exp. 
Teach.

Exp. 
Adm. Total

Mason Specialist ~ W ~ 35 0 75
Walsh Adm Asst 30 25 10 65
Brannan Specialist 30 20 0 50
Schaeffer Supvr 30 ? 0

1974
Edwin Foster
James BuskeyStone Legal

Lugo Coord
Franklin Specialist
Schneider Asst Supt
Pope Asst Supt
Waldrop Director
Lee Supvr.

1975Edwin Foster
James Buskey

Kieltyka Director
Burmeister Sec/Supt
Lambert Treas
Lugo Coord
Shoemaker Adm Asst
Brannan Staff Asst
Brunson Coord
Replogle Supvr
Brown Coord
Griffin Supvr
Kowqlski Supvr
West Supvr
Williams Coord
Hammach Log Off
Herring Coord
Shepard Supvr

70 0 80 150

70 70 110 250
70 30 60 160

20 0 70 170
70 30 70 170
30 20 20 70
70 20 100 190
70 15 90 175

From Table I it can be seen that, with respect to those
white principals promoted during the period 1971-75 for whom 
background information was available, Mr. Foster had higher 
objective qualifications than 33 of them; only one white princi­
pal, Tom Towey, had a higher point total. Mr. Buskey's totals 
exceed those of 20 of the 28 principals with whom he is compared.

J Because he was on sabbatical leave for graduate studies in 
1972-73, Mr. Buskey is not compared with any of the persons appointed 
during that school year. He is, however, compared with white persons 
appointed during the school years 1974-75 and 1975-76, even though 
his contract of employment had been cancelled by the School Board



Table II shows that, by objective measurement, Mr. Foster 
was better qualified than 30 of the 32 white persons appointed 
to central office positions during the same period, about 
whom information was available. Mr. Buskey's qualification 
totals exceeded those of 19 of the 27 white persons with whom 
he is compared.

Assistant Superintendent for Administration White admitted 
that the decisions not to promote Foster and Buskey were made not 
on the basis of any objective criteria, but because of purely 
subjective considerations. In a letter dated August 24, 1973,
Mr. White praised Mr. Foster's "splendid attitude in a very pro­
fessional way," and the "professional manner in which you have 
always served." P. Ex. 31. Mr. Foster was told that we tried 
to make as many people happy in positions as possible, but that 
promotions were not granted based on length of service." Id. 
According to this letter and Mr. White's trial testimony,
Mr. Foster was rejected entirely on the subjective evaluations of 
four (all-white) assistant superintendents for administration 
and the opinions of the predominantly white central office staff 
"screening committee." Iji. , Tr. IV 253-56, 279-81.

In James Buskey1s case, Mr. White, who as Assistant Super­
intendent For Administration is the staff officer chiefly responsi­
ble for recommending persons to be promoted to principal, admitted

13 (cont.)during this period. Because the state courts 
subsequently ruled Mr. Buskey was wrongfully terminated and 
ordered him reinstated, he is entitled to be considered for 
those positions for which he was wrongfully denied an opportunity 
to compete.



that the sole reason he was not recommended was the disfavor 
he had incurred with central office staff during his last year 
as assistant principal at Toulminville High School. During that 
1971-72 school year, the (all-balck) Toulminville students and 
parents were campaigning vigorously against the School Board's 
proposal to rebuild their high school at another location. At 
the request of his principal, Tr. IV 253-54, Mr. Buskey partici­
pated in Toulminville P.T.A. activities considering the site 
selection question. The Toulminville P.T.A. eventually won 
their battle when, on February 7,1977 the district court approved 
a consent decree calling for the new high school to be built on 
the present Toulminville campus. But, in 1971-72, this idea 
was extremely unpopular with central office staff. Mr. White 
introduced at trial some of the flyers that were circulated 
by the Toulminville community at that time, D. Ex. 1. Mr. White 
admitted that he knew of no connection between these flyers and 
Mr. Buskey, but said their mere existence indicated a lack of 
good leadership in the Toulminville High School Administration.
Tr. IV 356-58. As a result of all this, Mr. White testified, 
he refused to recommend Mr. Buskey for promotion because he 
"had not worked that cooperatively with the principal of the 
school" and "was pressuring very hard in order to have an addi­
tional level of operation." Tr. IV 348. When asked what he meant 
by seeking "an additional level of operation," Mr. White replied:

There are different approaches to going 
about securing a promotion. One is attempting 
to force the issue, Mr. Blacksher, as Mr. Buskey 
has done. The other is to attempt to cooperate 
with the established procedures and policies 
of the system.



Tr. IV 349. James Buskey described Mr. White's attitude as 
follows:

Q. Did Mr. White give you any advice about 
how you might successfully be promoted 
to a principal?

A. Yes, sir. He said that in order to 
achieve that goal there were some things 
that one was expected to do, and without 
specifying those, he alluded quite clearly 
to one of those things being keeping students 
and teachers in line. In other words, stamping 
out dissent and objections by the student 
body, teachers or the community.

Tr. IV 37. It is clear from this record that James Buskey
was punitively denied promotion because of his refusal to
stifle objections in the Toulminville community to the School
Board's plan to relocate their school.

SUMMARY OF THE ARGUMENT

Confrontedwiththe overwhelming evidence of racial discrimination 
in this record, the district court committed clear error, as a 
matter of law and fact, by refusing to grant judgment for 
plaintiffs-intervenors Foster and Buskey on both their class 
claims and individual claims.

There was unrebutted statistical evidence and testimony 
proving that all black teachers in the Mobile County Public 
School System are denied, solely on the basis of their race, 
an equal opportunity for promotion above the level of assistant 
principal. The severe adverse impact on blacks of the defendants' 
promotion practices is irrefutable, as is the intentionally racial 
basis upon which principals are assigned to predominantly white



and predominantly black schools. The defendants' non-standardized 
and subjective promotion procedures and criteria are insufficient, 
as a matter of law, to rebut the prima facie evidence of class­
wide racial discrimination.

Yet, the district court refused to certify Mr. Foster and 
Mr. Buskey as representives of the subclass of black professional 
employees, even though they satisfy all the requirements of 
Rule 23, solely because it misunderstood this Court's prior 
instructions to mean that only Birdie Mae Davis, et al. could 
advance class claims, while intervenors in the desegregation case 
must proceed strictly on individual bases. But allowing intervenors 
to represent appropriate subclasses in the school desegregation 
case actually improves the district court's ability to manage 
the wide-ranging class action. And, more importantly, unless 
teacher-intervenors are allowed to assert causes of action under 
Title VII and 42 U.S.C. § 1981 on behalf of the subclass, black 
professionals will be denied important substantive and remedial 
rights, which Birdie Mae Davis, et al. simply cannot provide 
them. Because the School Board and its members in their official 
capacities are the only defendants in the school desegregation 
case, remedial promotions and backpay may not be available for 
the subclass of black teachers unless they can share the statutory 
rights brought to the case by plaintiffs-intervenors. For the 
district court to isolate the intervenors' individual claims and, 
in a separate order onbdialf of the Birdie Mae Davis class, to 
require only prospective changes in the promotion system, leaving 
out all compensatory relief for class members, seriously under-



mines the important Congressional purposes of Title VII and 
§ 1981.

Considered by themselves, the individual claims of Mr. Foster 
and Mr. Buskey were proved by any legal standard, whether Title 
VII, § 1981 or § 1983. While the district court erroneously 
predicated its adverse ruling on the need for a showing of 
evil motive, in fact, that standard too was satisfied. The 
purposeful racial discrimination that may be required to estab­
lish claims under § 1983 was provided in this case by the trial 
court's finding that the School Board was intentionally restricting 
blacks' opportunities for principalships to the predominantly 
black schools. It may be that such purposeful discrimination 
makes it unnecessary to scrutinize more closely the defendants' 
promotion standards and their application to Mr. Foster and 
Mr. Buskey. But, in any case, any fair, standarized comparison 
of the intervenors' professional qualifications with those of 
persons promoted to principalships and central office positions 
in their stead conclusively demonstrates that they were denied 
promotions on purely subjective considerations. The School 
Board's representative admitted as much.

Finally, this Court should give instructions that Mr. Foster, 
as well as Mr. Buskey, should be entitled to relief under the pro­
visions of Title VII, including its backpay limitations period, 
and that on remand an award of attorneys' fees should be granted.



ARGUMENT

A. The District Court Erred in Denying the 
Class Action Claims of Foster and Buskey

The District Court erred as a matter of law in refusing 
to allow Edwin Foster and James Buskey to advance their claims 
of promotion discrimination on behalf of the subclass of all 
black professional employees in the Mobile County Public School 
System. This ruling squarely conflicts with established law 
calling for class relief where prima facie evidence of class­
wide discrimination is presented. The court's refusal to 
certify plaintiffs-intervenors' class claims undermines the 
statutory purposes of Title VII of the Civil Rights Act of 
1964. By ordering only prospective changes in the promotion 
process under the auspices of the parent Birdie Mae Davis case, 
the lower court barred members of the class who had been the 
victims of proven racial discrimination from access to compensa 
tory relief available only under Title VII and 42 U.S.C. § 1981

1. The evidence established and the district court found 
classwide discrimination against black teachers.

In its October 27 Davis opinion, the district court 
determined that the School Board had since the 1971 desegre­
gation decree maintained a 75-25 ratio of white to black 
principals in the system and a practice of assigning principals 
on a racial basis, according to the racial composition of each 
school's student body. R. Ill B 454-55. The evidence leaves

38



room for no other conclusion; except in four rural historically 
black schools, blacks are allowed to hold principal positions 
only in predominantly black schools. See pp . 13-16, supra_.
The assistant superintendent responsible for recommending 
the assignment of principals admitted racial considerations
are a factor in these decisions.

Such racial assignment practices clearly violate the rights 
of all black teachers. Many years ago this Court affirmed that 
assigning faculty by race according to the racial composition 
of particular schools violates the constitutional rights of
black teachers and school children alike. United States_~v_._

Jefferson County Bd. of Education, 372 F.2d 836, 883-85 (5th 
Cir. 1966). This standard of law is incorporated in the faculty 
desegregation guidelines of Singleton v. Jackson Municipal 
Separate School District; 419 F.2d 1211, 1217-18 (5th Cir. 1970). 
The Singleton provisions are incorporated in the current desegre­
gation decree in Davis. They require that professional staff 
who work on the administrative level will be hired, assigned, 
promoted, paid, demoted, dismissed, and otherwise treated 
without regard to race," and that "principals, teachers, 
teacher aides and other staff who work directly with children 
at a school shall be so assigned that in no case will the racial 
composition of a staff indicate that a school is intended for 
Negro students or white students." Singleton, supra, 419 F.2d 
at 1217-18. The School Board's contention that these legal 
standards permit them to assign principals on a racial basis 
so long as each administrative staff as a whole appears to be 
integrated flies in the face of this Court s plain language



and fundamental precepts of equal protection.
This Court has uniformily held that the assignment of public 

employees according to racial designations is a violation of 
the fourteenth amendment. Baker v. City of St. Petersburg,
400 F.2d 294 (5th Cir. 1968); Wade v. Mississippi Cooperative 
Extension Service, 372 F .Supp 126 (N.D. Miss. 1974), aff'd 528 
F.2d 508 (5th Cir. 1976); Allen v. City of Mobile, 331 F.Supp 
1134, 1144 (S.D. Ala. 1971), aff'd, 466 F.2d 122 (5th Cir. 1972), 
cert. denied, 412 U.S. 909 (1973). In Wade, supra, Judge Ready 
held that Mississippi's practice of assigning black extension 
agents almost exclusively to counties where black extension 
personnel were employed when the system was segregated violated 
the Equal Protection Clause of the fourteenth amendment. 373 
F. Supp at 144. In affirming, this Court held that "statistical 
evidence alone may enable the plaintiffs to satisfy their initial 
burden of showing discrimination." 528 F.Supp at 516-17.

The Mobile County School Board's policy of assigning prin­
cipals according to their race makes it possible, merely by 
reference to their staffs, to identify the all-black or nearly 
all-black schools in Mobile County as "black" schools. This fact 
alone makes out a prima facie case of violation of black pro­
fessional employees' rights under the Equal Protection Clause. 
Singleton, supra; accord, Swann v. Charlotte-Mecklenburg Bd. 
of Education, 402 U.S. 1, 18 (1971).^

Promotion and assignment practices like or related to 
those in the Mobile County Public Schools have been held to 
violate existing school desegregation decrees in both the Middle

40



Defendants' racial assignment of principals 
also presents a clear violation of Title VII and 42 U.S.C.
§ 1981. Section 703 of Title VII makes it unlawful for an 
employer

to limit, segregate or classify employees or 
applicants for employment in any way which 
would deprive or tend to deprive any indiv­
idual of employment opportunities or otherwise 
adversely affect his status as an employee, 
because of such individual's race, color, 
religion, sex or national origin.

42 U.S.C. § 2000e-2(a)(2)(emphasis added). Thus, United States
v. International Longshoremen's Ass'n, 460 F.2d 497 (4th Cir.
1972), held that, notwithstanding defendants' denials, the
ILA was maintaining racially segregated locals in violation
of Section 703(c)(2) of Title VII where one local had only four
blacks among 1,155 members and the other local had only five
whites among 1,226 members. The Fourth Circuit said:

Racial segregation limits both black and 
white employees to advancement only within 
the confines of their races. The position 
that would rightfully be an employee's but 
for his race, may be filled by a person of 
lower seniority or inferior capability because 
the job traditionally has been reserved for 
either a white person from one local or a black 
person from the other.

460 F .2d at 500. See also Bush v. Lone Star Steel Co., 373 
F. Supp 526, 531 (E.D. Tex 1974).

It cannot be disputed that the racial assignment of 
principals has had the direct and inevitable effect of adversely

14 (cont.)D£strict and Northern District of Alabama. Carr v .
Montgomery County Board of Education, ____ F.Supp (M.D.
Ala.T July 16, 1976); Lee v. St. Clair County School System,

F. Supp (N.D. Ala., July 18, 1975); Lee v. Coosa
County Bd. oFTtTucation, F. Supp (N.D. Ala., March 25,
1976) .

41



affecting the promotion opportunities of black professionals 
in the Mobile schools. See pp .16-18 supra. Only 19% of the 
promotions to principal from 1971 to 1975 went to black pro­
fessionals, and if those who had previously been principals are 
not considered, blacks'share of promotions drops to 10.7%.
By comparison, 40% of the teachers in the Mobile County System 
are black. The district court held that the disparate impact of 
the Board's principal assignment practices was demonstrated 
"only as a statistical incident." R. Ill B 455. But the statis­
tical proof was more than enough to establish discrimination 
against the class, as a matter of law.

The trial court's finding that the School Board was following 
racial assignment practices with respect to principals (and the 
incontrovertible evidence supporting it) establishes intentional 
state action which compels the conclusion that the equal protection 
rights of black teachers have been violated. Harkless v.
Sweeny Independent School Dist., 554 F.2d 1353 (5th Cir.) cert. 
denied 46 U.S.L.W. 3357 (1977). Moreover, the statistical proof 
alone was sufficient to establish a violation of Title VII.
E.g., International Brotherhood of Teamsters v. United States,
97 S. Ct. 1843, 1856 (1977); Pettway v. American Cast Iron Pipe 
Co., 494 F. 211, 225 (5th Cir. 1974); Rowe v. General Motors 
Corp.: 457 F.2d 348, 358 (5th Cir. 1972).

By the same legal lights, the statistical evidence showing 
disportionately few blacks have been promoted to central office 
staff, see pp. 18-20supra, makes out a prima facie case of racial 
discrimination in violation of Title VII of the Civil Rights Act

42



of 1964, as amended.
The defendants' promotion procedures and criteria are 

insufficient, as a matter of law, to rebut this prima facie 
evidence of classwide racial discrimination. The district 
court at least implicitly so found by ordering the School 
Board to develop measurable objective criteria and to eliminate 
subjective considerations. R. Ill B 457-58. Clearly, on 
this record, the court had no choice.

The use of unquantified, largely subjective criteria is 
unconstitutional and a denial of equal protection in the face 
of the racially disparate impact shown to exist there. The 
federal courts in this Circuit have made it clear that where an 
aggrieved person proves prima facie racial discrimination in 
public employment, the employer cannot justify his actions on 
the basis of factors which are "patently subjective in form and 
obviously susceptible to completely subjective treatment."
Wade v. Mississippi Cooperative Extension Service, supra,
372 F. Supp. at 142, citing United States v. Texas Education 
Agency, 459 F.2d 600 (5th Cir. 1972); United States v. Coffee- 
ville Consolidated School District, 356 F.Supp. 990 (N.D. Miss. 
1973) . The discussion of the promotion criteria in Wade is very 
close on point to the facts in the instant action:

We have considered defendant's earnest 
contention that all five criteria which they 
presently use are objective, job-related standards 
that are racially nondiscriminatory, both on their 
face and as applied. We must disagree. Passing 
the threshold question arising from an apparent 
lack of specific weight assigned to each standard, 
we can accpet three of the stated criteria as 
objective, job-related and capable of being non- 
discriminatorily applied, viz: degree, years of
experience and uniform testing to determine

43



technical knowledge. The difficulty, however, 
is encountered in dealing with the two remaining 
criteria. One of these is known as "concept of 
the job applied for", a term which was only 
loosely characterized by defendants' witnesses 
and never reduced to an understandable formula; 
as such it is a criterion quite incapable of 
uniform administration and readily susceptible 
to bias. Even more noteworthy, the so-called
"objective appraisal of job performance" --
admittedly tne most significant of all five 
criteria--is based upon . scores received by 
subordinates rated by supervisors on an evaluation 
instrument according to a number of questionable 
factors. For example, a substantial portion of the 
evaluation rating relates to such general character­
istics as leadership, public acceptance, attitude 
toward people, appearance and grooming, personal 
conduct, outlook on life, ethical habits, resource­
fulness, capacity for growth, mental alertness, and 
loyalty to organization. As may be readily observed, 
these are traits which are susceptible to partiality 
and to the personal taste, whim, or fancy of the evaluator.

372 F.Supp at 142 (emphasis added)(footnote omitted). Of the 
seven promotion criteria listed in Defendants' Answer to 
Interrogatory 1(2), R. Ill B 156, only criteria 1 (degree and 
certificate) and 2 (experience) and possibly 5 (transcript) are 
even arguably objective, and, as in the Wade case, they are 
assigned no specific weights. As explained in the answers to 
interrogatories and in Mr. White's testimony, the most important 
criterion, that of job performance, is totally subjective in 
nature and is thus unlawful in the context of the evidence in 
this case, particularly as it is determined by a predominantly 
white "screening committee", by a white Superintendent and by 
an all-white School Board.

It is even more firmly established in the Title VII caselaw 
that the School Board's promotion criteria and procedures, in

44



light of their racially disparate impact, are unlawful. The 
School Board failed totally to show that its promotion system for 
professional employees was objective, non-discriminatory or job- 
related. Robinson v. Union Carbide Corp.,538 F.2d 652, 661 
(5th Cir. 1976). Accord, e.g., Watkins v. Scott Paper Co., 530 
F.2d 1159,1192-93 (5th Cir. 1976); Stevenson v. International 
Paper Co., 516 F.2d 103, 117 (5th Cir. 1975); United States v .
N.L. Industries, Inc., 479 F . 2d 354 (8th Cir. 1973>; Rowe_v.
General Motors Corp., 457 F.2d 348 (5th Cir. 1972); Brown_v. 
Gaston County Dyeing Machine Co., 457 F .2d 1137 (4th Cir.), 
cert, denied, 409 U.S. 862 (1972).

2. The district court misinterpreted this Court's prior 
instructions with respect to the ability of Foster and Buskey 
to represent a subclass of black teachers.

At the beginning of its October 25 opinion, the district 
court mistakenly concluded that the interloculatory appellate 
decision in this case had affirmed the trial court s earlier 
ruling that plaintiffs-intervenors should not be "permitted to 
proceed by attempting to superimpose a class action upon a class 
action." R. Ill B 420-21. In fact, none of the four consolidated 
interlocutory appeals challenged the court s initial refusal 
to certify the class action. Rather, only the dismissal of 
Mr. Buskey's independent Title VII action, the dismissal of 
the Birdie Mae Davis motion to show cause and the refusal of 
the district judge to recuse himself were presented in those 
appeals. 517 F.2d at 1044-49. As part of its summary of the



♦

procedural background of the appeals, this Court did refer to 
the March 25, 1974, order denying Mr. Foster's motion for class 
certification on the grounds that M[n]o basis for maintaining 
such an action [had then] been offered." 517 F.2d at 1047.
But this Court's opinion did not foreclose the rights of either 
Foster or Buskey to seek reconsideration of class certification 
once additional evidence had been obtained, and it instructed 
the district court to grant plaintiffs-intervenors "full dis­
covery with respect to the category of position or positions 
sought in an effort to establish all statistical, policy and 
practice data of relevance to their claims." 517 F.2d at 1053.

To the contrary, this Court reassured Mr. Buskey that 
"[intervention would not result in the loss of substantive 
or procedural rights under Title VII." 517 F.2d at 1049. Both 
Mr. Foster and Mr. Buskey were required to proceed by way of 
intervention in Birdie Mae Davis, because, as a "pending ... 
class action" with an outstanding permanent injunction against 
racial descrimination in faculty and staff positions, Davis 
could be better managed and a proliferation of litigation could 
best be avoided by use of the intervention procedure. Id.
Judge Bell's opinion bases its ruling on Hines v. Rapides 
Parish School Bd., 479 F.2d 762 (5th Cir. 1973), Lee v,
Macon County Bd. of Education (Conecuh County), 482 F.2d 1253 (5th 
Cir. 1973), and National Education Assn, v. Board of School 
Commissioners of Mobile County, 483 F .2d 1022 (5th Cir. 1973).
A review of these precedents reinforces the conclusion that 
this Court did not mean forever to preclude consideration 
of Foster's and Buskey's claims to represent a class or subclass.

46



Hines v. Rapides Parish School Bd., the first in this line 
of cases, held that white parents objecting to the district 
court's desegregation orders must seek intervention in the 
desegregation action to avoid "fostering a multiplicity of new 
lawsuits over the same complicated and emotional issues which 
have already once been fought out in an all too lengthy battle." 
479 F.2d at 765. By contrast, the class promotion claims ad­
vanced by Mr. Foster and Mr. Buskey have only in the most 
general sense previously been the subject of prior litigation 
in Birdie Mae Davis. Singleton, incorporated in the 1971 
desegregation decree for Mobile, does little more than acknow­
ledge as law that black professionals should not be discriminated 
against on the basis of race with respect to assignments and 
promotions. Specific procedures and criteria used by the 
School Board have never been scrutinized by the district court, 
nor have any of the semi-annual reports to the court contained 
any information by which the Board's promotional practices could 
be observed. Only by means of the discovery obtained on remand 
by Foster and Buskey could evidence of these practices be obtained.

In Conecuh County, supra, the Court explicitly suggested 
that principals and teachers might be more appropriate inter- 
venors for the purpose of representing the class of black 
professionals in challenging post-decree hiring, demotion and 
dismissal practices. 482 F.2d at 1255. The real focus of that 
opinion was a question not present in the instant action, 
namely, whether NEA had standing alone to represent such a class. 
Id.

47



Similarly, NEA v. Board of School Commissioners of Mobile 
County, supra, concerned the teacher organization's attempt to 
become the vicarious representative of black professionals in 
the Mobile County case. NEA had a petition to intervene in 
Davis pending in the district court when it joined with two 
teachers and brought an independent action attacking the Mobile 
School Board's employment practices. No racial discrimination 
was alleged in their complaint, and the individual teachers 
were subsequently dismissed after they were hired. This Court 
expressed no opinion about NEA's petition to intervene in Davis. 
Rather, it held that with or without named teachers, NEA should 
not be allowed to maintain an independent action challenging the 
same practices that were the subject of the Davis desegregation 
decree. It was in this procedural context that Judge Bell first 
penned the much used language concerning the heavy burden of 
"a third party to superimpose a class action on a pending class." 
483 F.2d at 1024. The NEA opinion ends with a statement of con­
fidence in undersigned counsel in Birdie Mae Davis to protect 
the rights of black teachers and staff. Id. The instant 
appeal in effect presents the question of how the Davis plaintiffs 
and intervening black teachers should go about protecting such 
rights.

After all, the Rule 23 motions filed by Mr. Foster and 
Mr. Buskey following their intervention in Davis were not 
intended to superimpose one class action upon another; rather, 
as members of the overall class of black students and teachers 
already subject to the district court's protective orders, 
plaintiffs-intervenors were simply seeking to be certified as



adequate representatives of a subclass composed of black pro­
fessionals, for the limited purpose of challenging racially 
discriminatory promotion practices. Certainly Edwin Foster 
and James Buskey are better situated to represent the interests 
of black teachers and administrators than are the former black 
students and their parents who originated this action in 1963. 
Certification of such a subclass to be represented by these 
intervenors is fully consistent with the management objectives 
of Rule 23 and the repeated recommendations of this Court. E.g., 
United States v. Untied States Steel Corp., 520 F.2d 1043, 1051 
(5th Cir. 1975), cert, denied, 429 U.S. 871 (1976), and cases 
cited therein.

3. Birdie Mae Davis, et al. are not fully adequate repre­
sentatives for the class promotion claims; denial of Foster's 
and Buskey*s Rule 23 motions restricts relief available to the 
subclass and undermines the purposes of Title VII.

More critical than the class management concern discussed 
in the preceding section is consideration of the integral relation­
ship between plaintiffs-intervenors' ability to represent the 
subclass of black professionals and the remedial relief which 
otherwise would not be available to members of the class. If 
the district court's denial of the Rule 23 motions filed by 
Mr. Foster and Mr. Buskey is not reversed, the purely prospective 
relief extended to other black teachers in the October 27 Davis 
order may in fact be the entire remedy available to the subclass 
under the representation of Birdie Mae Davis, et al.



Because there has been a complete turnover of membership 
on the Mobile School Board since Davis was filed in 1963, 
arguably, only the Board and its members in their official 
capacities remain as defendants. According to the current law 
in this Circuit, no relief is available against the School 
Board qua board under 42 U.S.C. § 1983, and only reinstatement 
without backpay is available against the Board members in their 
official capacities. Harkless v. Sweeny Independent School Dist. 
supra, 554 F.2d at 1359. On the other hand, full relief, 
including backpay, can be recovered by class members from both 
the Board and its members in their official capacities under 
42 U.S.C. § 1981, id., and Title VII, Fitzpatrick v. Bitzer,
423 U.S. 1031 (1976). Of course, the original Davis complaint 
has never been amended to allege violations of either 42 U.S.C.
§ 1981 or Title VII. However, the complaints in intervention 
of both Mr. Foster and Mr. Buskey allege causes of action under 
42 U.S.C. § 1981, and Mr. Buskey's complaint also makes out a 
claim under Title VII. Thus, although the district court has 
not yet ruled on the Birdie Mae Davis contempt motion, including 
its prayer for class backpay, there is a substantial question, 
as the pleadings now stand, whether full class relief would be 
available on the motion of Birdie Mae Davis, et al. This is 
not to say that Birdie Mae Davis would not be entitled to amend 
her complaint by adding a § 1981 count, even at this late date. 
Harkless, supra, 554 F.2d at 1359-60. But only James Buskey can 
assert Title VII claims on behalf of the subclass of black 
teachers. Left undisturbed, this district court's ruling 
would mean that, solely because the Mobile County School Board



is subject to an ongoing desegregation order, black teachers 
in this system will have lost the right enjoyed by all other 
private and public employees to maintain a Title VII class 
action. This would be so even though this Court has promised 
that "[intervention would not result in the loss of substantive 
or procedural rights under Title VII."

In this case and on this record, the trial court's refusal 
to allow Edwin Foster and James Buskey to advance their § 1981 and 
Title VII claims on behalf of the subclass of black professionals 
undermines the important Congressional purposes of Title VII.
This Court has repeatedly reminded district judges that, because 
of the public nature of Title VII actions, they "are sometines 
said to be 'perforce' class actions, since by their very nature 
they challenge the defendants' actions toward a specific group." 
Satterwhite v. City of Greenville, 557 F.2d 414, 419 (5th Cir.
1977)(rehearing en banc pending). The overlapping but not inter­
changeable remedies provided by Title VII would otherwise not 
be available to the subclass of black teachers. See Johnson v . 
Railway Express Agency, Inc., 421 U.S. 454 (1975). Nor will the 
subclass be able to enjoy the substantive rights Congress has 
established through Title VII, such as the right to be free of 
employment practices that have the effect of discriminating 
against them on the basis of race, regardless of whether the 
School Board intended such discrimination.^^

But see Davis v. County of Los Angeles, ____ F.2d____
15 E.P.D. If 8046 (9th Cir., December 14, 1977) (Judge Tuttle) 
(under 42 U.S.C. § 1981, discriminatory intent or purpose need 
not be shown in addition to statistical proof of disproportionate 
impact).



Moreover, where representative plaintiffs who, like Edwin 
Foster and James Buskey in the instant case, patently satisfy 
the prerequisites of Rule 23(a) and (b)(2) advance unrebutted 
statistical evidence of classwide racial discrimination, the 
district court is duty-bound under Title VII to certify a class 
action and provide full remedial relief to class members.
Albemarle Paper Co. v. Moody, 422 U.S. 417 (1975), announced 
the duty of district courts to exercise their discretion during 
the management of Title VII cases in a manner that "would not 
frustrate the central statutory purposes of eradicating dis­
crimination throughout the economy and making persons whole for 
injuries suffered through past discrimination." 422 U.S. at 421. 
Thus, says the Court:

The [district] court has not merely the power 
but the duty to render a decree which will 
so far as possible eliminate the discriminatory 
effects of the past as well as like discrimination in the future.

422 U.S. at 418, quoting Louisiana v. United States, 380 
U.S. 145, 154 (1965) (emphasis added).

By refusing to allow teachers who have perfected Title VII 
jurisdiction to intervene in school desegregation cases 
on behalf of similarly situated black employees and to obtain 
for the entire subclass full "make whole" relief, including 
reinstatement and backpay where appropriate, the district court 
has frustrated the central statutory purposes of Title VII. See 
Albemarle Paper Co. v. Moody, supra; accord Pettway v. American 
Cast Iron Pipe Co.. 494 F.2d 211, 252-53 (5th Cir. 1974); Johnson 
v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974); United
States v. Georgia Power Co., 474 F.2d 906, 921 (5th Cir. 1973).



B. The District Court Erred in Denying the 
Individual Claims of Foster and Buskey

As members of a subclass on behalf of whom unrebutted 
racial discrimination has been proved, intervenors Edwin 
Foster and James Buskey are entitled, at the very least, 
to have their individual claims reconsidered on remand along 
with those of other members of the subclass. However, plain­
tiff s- intervenors contend that, despite the district court's 
refusal to certify them as class representatives, the evidence 
produced conclusively proves their individual claims.

1. The district court committed legal error by basing 
its dismissal of plaintiffs-intervenors1 individual claims on 
consideration of the School Board's motives.

In its October 25 Foster-Buskey conclusions of law, the dis­
trict court held that "the ultimate question of fact is whether 
the actions of the School Board ... are racially motivated."
It then dismissed the individual claims of Edwin Foster and 
James Buskey solely on the ground that, in the court's opinion, 
the School Board's refusal to promote them "was based on motiva­
tions other than race." R. Ill B 450-51. This was an incorrect 
legal standard for adjudging the intervenors' individual claims.

Where plaintiffs-intervenors claim that they have been 
victims of the "disparate impact" of the School Board's facially 
neutral practices governing promotions to principalships and 
central office positions, proof of discriminatory motive is not 
required under Title VII of the Civil Rights Act of 1964.

53



International Brotherhood of Teamsters v. Untied States, supra,
97 S. Ct. at 1854 n.15. Inexplicably, the district court's 
conclusions of law make no reference whatsoever to Title VII 
and ignore Title VII standards of proof.

Even though Edwin Foster, unlike James Buskey, did not 
file a charge of discrimination with the Equal Employment 
Opportunity Commission and therefore had not himself perfected 
Title VII jurisdiction, as a co-intervenor with Mr. Buskey, who, 
as this Court has recognized, gave the court subject matter 
jurisdiction under Title VII, Mr. Foster was entitled to "ride 
the coattails" of Mr. Buskey's EEOC charge and obtain full Title 
VII relief. Oat is v. Crown-Zellerbach Corp.. 398 F.2d 496 (5th 
Cir. 1968). This is so even thoughthe district court denied 
James Buskey's Rule 23 motion, forcing Mr. Foster to proceed with­
out the benefit of a Title VII class action. Wheeler v.
American Home Products Corp.,___ F.2d____, 15 E.P.D. If 7957
(5th Cir., December 1, 1977).

Neither were the plaintiffs-intervenors required to prove 
evil motive to prevail under their § 1981 claims. Davis v .
City of Los Angeles, supra. And, because de jure racial 
segregation has already been proved in Davis, intentional dis­
crimination requisite for a 42 U.S.C. § 1983 claim has already 
been established.^ Indeed, the Singleton provisions of the 
district court'sdesegregation decree entitle black teachers

See United States v. Texas Education Agency (Austin III),
___  F. 2 d  (5th Cir. 1977); K i r k s e y  v. B d . o f  S u p e r v i s o r s

of Hinds County, 554 F.2d 139 (5th Cir. 1977) (en banc). 
cert, denied, 46 U.S.L.W. 3354 (1977).

54



to be evaluated for promotion by fairly applied objective 
criteria, without regard to the motives of the employing 
board. Carter v. West Feliciana Parish School Bd., 432 F.2d 
875, 879 (5th Cir. 1970.^ However, because of the presence 
of Title VII claims, this Court is not required to reach the 
issues of whether racial motive is required for plaintiffs-inter- 
venors to establish their claims under either § 1981 or the 
desegregation decree.

2. In any event, purposeful racial discrimination was proved.
The history of assignments to principal positions in the 

Mobile County Public School System since entry of the 1971 
desegregation decree conclusively established that the Board 
was purposefully and intentionally assigning principals on a 
racial basis. See pp.13-16 supra. Invidious discriminatory 
purpose as a motivating factor is necessarily concluded when 
"a clear pattern, unexplainable on grounds other than race, 
emerges from the effect of the state action even when the 
governing legislation appears neutral on its face." Village 
of Arlington Heights v. Metropolitan Housing Development Corp.,
97 S. Ct. 555, 564 (1977). The district court specifically 
found that the School Board has been assigning white principals 
to white schools and black principals to black schools. R. Ill 
B. 455. Given this finding of intentional racial discrimination,

In a somewhat inconsistent fashion, the district court's 
conclusions of law, paragraph 3, acknowledge this legal standard.
R. Ill B 449.



the district court need not have considered the validity of the 
School Board's purported evaluation process for selecting princi­
pals, since "such a process was only a pretext for denying plain­
tiffs their jobs on the basis of race." Harkless v. Sweeny

18Independent School Dist., supra, 554 F.2d at 1358. Nevertheless, 
the following section of this brief will discuss the trial court's 
findings regarding the promotion process and its specific appli­
cation to plaintiffs-intervenors.

3. The district court's findings of fact concerning the 
intervenors' individual claims were clearly erroneous.

The trial court compared Edwin Foster to persons actually 
promoted only for the seven vacancies for which he filed formal, 
written applications. The basis for this restriction was the 
Court's finding that "[tjhough [Mr. Foster] now says he did not 
intend to preclude his consideration for [other] openings, his 
actions indicated that at that time he did." R. Ill B 424 n.l. 
There is absolutely no evidence to support this finding. As 
the court notes, Foster repeatedly testified that by responding 
to these seven posted vacancies he did not understand or intend 
that he was to be considered for no others. Assistant Super­
intendent White admitted that he was in fact considered for all 
other vacancies. See p 7-1 supra. Written policy of the School 
Board explicitly provides that teachers will be considered for 
promotion whether they apply or not, and this policy remained in

18 See also Cross v. Board of Education of Dollarway,
395 F. Supp. 531 (E.D. Ark. 1975).

56



force even after the practice of publishing some vacancies was 
begun. Finally, this finding of the court is both illogical and 
unfair, because only a few of the vacancies were actually pub­
lished in the Weekly Bulletin; in particular, those created by 
lateral transfers could not be posted. Thus, the holding that 
Mr. Foster must be considered to have had no interest in vacancies 
for which he did not formally apply is inconsistent with the 
School Board's actual practice and unjustly restricts the 
intervenors' promotion opportunities.

The trial court also committed clear error when, without 
applying any uniform or standarized evaluation method, it con­
cluded that by objective measurements Mr. Foster and Mr. Buskey 
were less qualified than those persons actually promoted to 
principal and central office positions. Utilizing a standarized 
procedure suggested by this Court, the evidence shows that Edwin 
Foster was better qualified than all but one of the actual 
promotees and that James Buskey was better qualified than 70% 
of them. See pp.29-32supra. This evidence alone warrants reversal 
and the entry of judgment in favor of plaintiffs-intervenors on 
their individual claims.^
----------T9--------------------

The evidence conclusively establishes Title VII violations 
against Mr. Foster and Mr. Buskey individually, according to the 
legal standards of McDonnell Douglas Corp. v. Green, 411 U.S. 792,802 (1973):

(1) plaintiffs-intervenors belong to a racial minority;
(2) They applied and were qualified for promotion;
(3) despite their qualifications they were rejected; and
(4) the School Board continued to seek applicants for 

and fill numerous vacancies in principalships and central office positions.
The Board did not meet its defensive burden of articulating 

"some legitimate, nondiscriminatory reason for the employee's rejection." 
Id. And it cannot rely on "ad hominum facts concerning work product 
land] disputatiousness" to exculpate itself from objective evidence 
of discrimination. East v. Romine, Inc ., 518 F. 2d 332,340 (5th Cir. 1975).

57



4. As a matter of law, the district court applied the 
wrong statute of limitations to Mr. Foster's individual claim.

The court applied the correct statute of limitations to 
the individual claim of James Buskey, considering promotion 
opportunities for him during the period two years proceeding 
the date he filed his EEOC charge on August 27, 1973. R. Ill 
B 430. 42 U.S.C.§ 2000e-5(g). However, the court refused to
apply the Title VII backpay limitations to the claims of Edwin 
Foster and thus would not consider promotion opportunities 
he missed prior to January 23, 1973. This was an error of law. 
For reasons already stated, Edwin Foster was entitled as an 
intervenor to benefit from Mr. Buskey's EEOC charge and the 
backpay remedy provided by Title VII. Wheeler v. American 
Home Products Corp., supra.

C. On Remand, the District Court Should Award 
Plaintiffs-Intervenors Their Attorneys' Fees

The district court's denial of attorneys' fees must fall 
along with its findings of no discrimination against plaintiffs- 
intervenors. A prevailing plaintiff is entitled to an award of 
reasonable fees, under the Civil Rights Attorneys' Fees Awards 
Act. of 1976, 42 U.S.C. § 1988; under Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(k); and under 
Section 718 of the Education Amendments of 1972, 20 U.S.C. § 1617; 
See Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 
1974). Upon reversal of the judgment below and remand to the 
district court for further proceedings, this Court should direct 
the trial court to grant plaintiffs-intervenors an award of 
attorneys' fees, including an interim award of fees. James v.



Stockham Valves and Fittings Co., 559 F.2d 310 (5th Cir. 1977); 
Stevenson v. International Paper Co.,515 F.2d 103 (5th Cir. 1975).

CONCLUSION
The judgment below should be reversed and the case remanded 

with instructions that judgment be entered in favor of plaintiffs- 
intervenors Edwin Foster and James E. Buskey and in favor of the 
subclass of black professional employees of the Mobile County 
School System, whom the district court should certify as repre­
sented by plaintiffs-intervenors pursuant to Rule 23(b)(2). The 
trial court should be instructed to commence proceedings to deter­
mine the promotions and amount of backpay to be awarded plaintiffs- 
intervenors Foster and Buskey and to conduct "Stage II" proceedings 
to determine what individual relief, including promotions and 
backpay, should be awarded members of the subclass. United States 
v. U.S. Steel Corp., supra, 520 F.Supp at 1052-57 (5th Cir. 1975); 
accord.International Brotherhood of Teamsters v. United States, 
supra. 97 S. Ct. at 1867-68. The court should be instructed to 
grant plaintiffs-intervenors an award of interim attorneys' fees 
and costs immediately upon remand and a final award of fees and 
costs following completion of Stage II proceedings.

Respectfully submitted this ^ Q _ _ d a y of March, 1978.
CRAWFORD, BLACKSHER, FIGURES & BROWN 
1407 DAVIS AVENUE 
MOBILE, ALABAMA 36608

59



JACK GREENBERG, ESOUIRE 
BILL LANN LEE, ESQUIRE 
LEGAL DEFENSE FUND 
SUITE 2030 
10 COLUMBUS CIRCLE 
NEW YORK, N.Y. 10019
SOLOMON SEAY, ESQUIRE 
352 DEXTER AVENUE 
MONTGOMERY, ALABAMA 36104
Attorneys for Plaintiffs-Intervenors -Appellants

CERTIFICATE OF SERVICE

I do hereby certify that on this day of March, 1978
I served 2 Copies 6f the foregoing BRIEF OF PLAINTIFFS-INTERVENORS- 
APPELLANTS upon Robert C. Campbell, III, Esquire, 800 Downtowner 
Blvd., Mobile, Alabama 36609, William A. Kimbrough, Esquire,
U.S. Attorney, Post Office Drawer E, Mobile, Alabama 36601 and 
Thomas Keeling, Esquire, Civil Rights Division, U.S. Department 
of Justice, Washington, D.C. 20530.

EY FOR PLAINTIFFS-INTERVENORS-APPELLANTS

60