277 F.2d 418 (8th Cir. 1960), 16056, Byrd v. Sexton

Docket Nº:16056.
Citation:277 F.2d 418
Party Name:Marian Timmerman BYRD, by Harry Timmerman, Father and Natural Guardian, as Next Friend, Appellant, v. F. L. SEXTON et al., Appellees.
Case Date:March 28, 1960
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 418

277 F.2d 418 (8th Cir. 1960)

Marian Timmerman BYRD, by Harry Timmerman, Father and Natural Guardian, as Next Friend, Appellant,

v.

F. L. SEXTON et al., Appellees.

No. 16056.

United States Court of Appeals, Eighth Circuit.

March 28, 1960

Page 419

Victor B. Harris, St. Louis, Mo., for appellant.

Will B. Dearing, Hillsboro, Mo., for appellees.

Before SANBORN, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

This action, brought under 42 U.S.C.A. § 1983 and § 1985, concerns alleged civil rights violations committed in connection with the imposition of an $8.00 annual high school 'enrollment fee' 1 which plaintiff, as a pupil, refused to pay for the school year 1955-56. Jurisdiction is based on 28 U.S.C.A. § 1343. 2 The case was tried to the court without a jury and judgment was entered dismissing the action with prejudice.

The suit was instituted March 26, 1956. Plaintiff Marian Timmerman was then 17 years of age and unmarried. 3 She had completed her freshman and sophomore high school years at Hancock High School in Lemay, St. Louis County, Missouri, and beginning some time in 1954, she and her parents took up residence on a rural route in Washington County, Missouri. Their home there was about 10 miles southeast of the City of Sullivan in the adjoining Missouri County of Franklin. Marian attended Sullivan High School as a junior during the school year 1954-55. This was under an arrangement, in effect for some years, between the school officials of the Washington County district and the Board of Education of Consolidated District No. 2, Franklin County, whereby students living in a certain area (where plaintiff resided) of Washington County could attend high school in Sullivan rather than in Potosi, some 25 miles away. 4 Tuition and, beginning in September 1954, transportation costs were charged by the Consolidated District to the Washington County District and paid by the latter, and the Consolidated District in return provided the school facilities, instruction and bus transportation.

Defendant F. L. Sexton is the Superintendent of Schools of the Consolidated District. The other defendants involved in this appeal are the members of the Board of Education of the District. 5

Page 420

The complaint has 2 counts. Count I is based upon § 1983. 6 It claims violation by defendants of plaintiff's federal rights 'under color of' defendants' official authority. 7 Count II is based upon § 1985, presumably paragraph (3) thereof, 8 and alleges the corresponding conspiracy. 9 Actual and punitive damages

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are asserted under both counts. The answers are general denials and they contain denials, also, that plaintiff can bring any action against the defendants under § 1983 or § 1985.

So far as the record discloses, no issue of race is in this case.

There is little dispute about the essential facts. We review them in detail here only in an attempt to reproduce the atmosphere prevailing at Sullivan in September, 1955. As stated above, Marian first attended Sullivan High School as a junior during the school year 1954-55. For that year the $8.00 enrollment fee was charged to and apparently paid by all the high school's students, residents as well as non-residents and including Marian. This fee seemingly was a matter of some concern to Marian's father for during that school year he wrote letters to the Governor and others about the charge. He had also seen Sexton, and as early as September 9, 1954, Sexton had written Timmerman in response to a latter from him, that the fee included text books and work books used during the year, admission to 5 special assemblies, admission to all basketball games except the annual tournament, a copy of the monthly school paper, and admission to Junior and Senior class plays and the annual May Day Festival. The letter also said that if it were necessary for a student to purchase his own text books, they would cost more than the $8.00 fee.

Marian's record during the 1954-55 school year was good.

On August 22, 1955, a form letter was mailed by Sexton to Marian at her home and received by her the following day. This contained enrollment information for the coming year and the requirements for graduation. It stated that the enrollment date for juniors and seniors was Thursday, September 1st, and for others Friday the 2nd; that, however, buses were to operate only on Friday; that junior and senior bus students would be accepted on Friday, if they had no transportation Thursday; that school opened Tuesday, September 6th; and that the enrollment fee for the high school was $8.00 and for the eighth grade was $2.50. The same letter was sent to all students who had attended the school the year before and made no distinction, as far as the fee was concerned, between resident and non-resident students or among any of them.

On September 2 Marian went to school by the bus. She stood in line to make out her class schedule. The teacher there asked for her receipt for the enrollment fee. She said she had no receipt and was sent to Mr. Sexton. Sexton told her that she could not attend school without paying the fee. She asked for an itemized statement and said she was willing to pay for her books. Sexton said that the books would cost more than the enrollment fee and that she would have to pay the fee. Marian had the money with her and was fully able to pay. The payment, however, was not made.

On Tuesday, September 6th, the first day of school, Marian again took the bus. She talked with the principal and said that she wanted to know where her $8.00 was going. She attended an assembly and then went to a class. She was sent from that class to Sexton's office. There she stated that this was a free public high school, that her home district had paid her tuition and bus fare and that she did not think she had to pay the enrollment fee. She then sat in Sexton's outer office the rest of the day. She rode the bus home.

The following day, September 7th, a bus did not stop for her and 2 other students. The 3 were taken to school by Marian's mother. Again she went to a class; she was told that she was trespassing but stayed in the class. After

Page 422

that she went to another class and was then sent to Sexton's office where she sat until lunch and during the afternoon. On that day Sexton told Marian that even if she paid the $8.00 she could not come to that school. She went home by the bus.

That night Sexton called a special meeting of the Board of Education. The Board by formal and unanimous action determined that Marian 'cannot be accepted as a student in the Sullivan High School for 1955-56' because she was not a resident of the district, because she 'has refused to comply with the rules and regulations governing the school', and because she 'has created a disturbance and interfered with the normal operation of the school and classroom work.' A registered letter was sent by Sexton with the approval of the Board to Marian's parents on September 8th. This quoted the Board's minutes concerning that action. It also stated that 'If Marian continues to appear on the campus or in the buildings it will be necessary to have her removed by an officer of the law.' This apparently is the only communication, written or oral, between the Board or Sexton and Marian's parents. On Thursday and Friday, September 8th and 9th, Marian went back to school and sat in Sexton's office those two days without conversation with him.

On Monday, the 12th, she again went to the school by bus, attended a first hour class and a study hour and then was sent to Sexton's office where she sat. After lunch she went to a gymnasium class where she was not permitted to participate. She then went back to Sexton's office. Sexton felt that the situation 'was having a certain effect on other students' and reported the matter to the Prosecuting Attorney. That afternoon the sheriff arrested Marian in Sexton's office for disturbance of the peace. He took her to his office in Union, Missouri. Marian attempted to reach her father by telephone from Union but was unable to do so at first. She was taken to Magistrate Court where an Information against her for disturbance of the peace was read. She pleaded not guilty. Bond was set at $500. Marian was able finally to reach her father in late afternoon. No bond was posted and she remained in jail from late Monday afternoon until mid-morning Wednesday. Counsel for Marian was retained. He obtained a change of venue to Hermann, Gasconade County, Missouri. The case was dismissed there without prosecution and Marian was released.

There was publicity about these events and there are claims that this experience adversely affected Marian's disposition and nervous condition and thwarted her plans to enlist in the Women's Division of the Marine Corps.

Marian made no further attempt to attend school at Sullivan but went to Roosevelt High School in St. Louis for a few days and lived with her grandmother during that time. The officials there ascertained that her home was with her parents in Washington County and she was not allowed to continue. She finished the year back at Hancock High School in Lemay and paid tuition there.

There is some conflict in the record as to Marian's conduct while she was sitting in Sexton's office. She apparently mingled with the students as classes were changed and kept notes of conversations between office personnel and those who called at the office. There is conflict, too, as to whether on September 12th Marian took a small overnight bag to school; she and her mother deny that such a bag was taken and Sexton himself did not see one, but the arresting sheriff said she had one in her possession. Marian acknowledged that she had been warned that if she continued to come to the school she would be arrested for disturbance of the peace.

The fee in question went into the school district's incidental fund....

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