Gay v. Wheeler, Civ. A. No. 70-G-41.

• Decision Date: 08 August 1973
• Docket Number: Civ. A. No. 70-G-41.
• Citation: 363 F. Supp. 764
• Parties: Mary Helen GAY and Betty Jo Joyce, for themselves and for all teachers employed in the Anahuac Independent School District and for all other teachers, professionals and other persons similarly situated, Plaintiffs, v. Henry WHEELER, Individually, and in his official capacity as Superintendent of the Anahuac Independent School District, Chambers County, Texas, and the members of the Board of Trustees of the Anahuac Independent School District, individually to-wit, et al, Defendants.
• Court: U.S. District Court — Southern District of Texas

363 F. Supp. 764

Mary Helen GAY and Betty Jo Joyce, for themselves and for all teachers employed in the Anahuac Independent School District and for all other teachers, professionals and other persons similarly situated, Plaintiffs, v. Henry WHEELER, Individually, and in his official capacity as Superintendent of the Anahuac Independent School District, Chambers County, Texas, and the members of the Board of Trustees of the Anahuac Independent School District, individually to-wit, et al, Defendants.

Civ. A. No. 70-G-41.

United States District Court, S. D. Texas, Galveston Division.

August 8, 1973.

Larry Watts, of Walker, Strahan, Brunson & Watts, Houston, Tex., for plaintiffs.

Joe H. Reynolds, of Reynolds, White, Allen & Cook, Houston, Tex., for defendants.

MEMORANDUM AND ORDER

NOEL, District Judge.

This is a secondary school teacher contract non-renewal case. It arises out of a school district's failure to re-employ plaintiff as an elementary teacher following the expiration of the spring semester, 1967-68. It is brought in equity seeking as relief preliminary and permanent mandatory injunctions and monetary damages. Jurisdiction is asserted under the Civil Rights Act, 28 U.S.C. § 1343(3) and its substantive counterpart 42 U.S.C. § 1983. Before this case could be brought to trial, one of the named plaintiffs, Betty Jo Joyce, died, leaving Mary Helen Gay as the sole remaining plaintiff. Defendants are the Superintendent and members of the Board of Trustees of the Anahuac Independent School District, sued in their individual as well as official capacities. The latter two defendants will be referred to as the "Board" and the "District" respectively.

A question arises with respect to the Court's jurisdiction of individual school board members sued in their official capacity. The recent United States Supreme Court case of City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) has left the answer unsettled. The previous law of this Circuit had incorporated school district trustees in their representative capacity within the term "person" for the purposes of suit under §§ 1983 and 1343. Harkless v. Sweeny Independent School District, 427 F.2d 419 (5th Cir. 1970), rev'g 300 F.Supp. 794 (S.D.Tex.1969). In Harkless the Court of Appeals arrived at its result by drawing a distinction between a suit for monetary damages and a suit in equity seeking injunctive relief. Although Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) prohibited the exercise of federal judicial power in a § 1983 action seeking monetary relief brought against city police officers acting in their official capacity, the Court of Appeals in Harkless concluded, nevertheless, that school district trustees and administrators were susceptible to suits in equity for actions taken by them in their representative capacity. Harkless v. Sweeny, supra. However, City of Kenosha, relying explicitly upon Monroe, places a municipality outside the ambit of § 1983 for the purposes of equitable relief, as well as damages. It would seem that like a municipal corporation, a school district and its elected board members should likewise be excluded from § 1983 equity actions, such as the instant case. However, it is unnecessary for the Court to reach and resolve the issue since each District Board member here was sued in his individual capacity.

Initially, plaintiff alleged that this suit was brought as a class action on behalf of all teachers, professionals and other persons similarly situated. However, upon express agreement of the parties, the class action claim was dismissed. Plaintiff now alleges she was not rehired solely because of race. She seeks to restrain all defendants from refusing to hire and assign teachers without regard to race and specifically, from failing to offer her a teaching contract for the 1968-69 school year, solely because she is a Negro. Additionally, plaintiff asserts that her non-renewal was constitutionally defective and impermissible for lack of compliance with the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. After hearing the testimony of witnesses, considering the exhibits offered into evidence and briefs submitted, and the arguments of counsel, the Court now makes and enters its findings of fact and its conclusions of law. Rule 52, Fed.R.Civ.P.

Findings of Fact

1. Before this case was brought on for trial one of the two named plaintiffs died. No request to substitute a successor or personal representative as party plaintiff was made. No evidence was offered on her behalf. The lawyer representing both the deceased and the surviving plaintiff, elected to proceed only as to the rights of the survivor, Mary Helen Gay. Therefore, the deceased, Betty Jo Joyce's cause of action, if any, is dismissed. Rule 25(a)(2), Fed.R. Civ.P.

2. The District is a separate governmental entity created under and by virtue of the laws of the State of Texas. It embraces 362 square miles and provides education for approximately 1100 students. When this suit was filed, the District was financed from revenues raised from local taxation. No federal funds were sought or received.

3. Prior to September, 1964, the District operated a racially segregated, dual, school system with ethnic assignments. All Negro students and all Negro faculty were assigned to George Washington Carver School. White students with an all-White faculty were assigned to separate buildings.

Plaintiff, a woman of Negro heritage, was first employed in 1963 as a substitute teacher. In August 1965, she was hired as a full time first grade teacher at the George Washington Carver School (hereinafter referred to as Carver).

4. From 1965 to 1968 the District was engaged in the process of integration. By 1965, it had implemented and had operative a true freedom of choice plan. Under the plan, with parental approval, each student was allowed to select the school which he or she desired to attend. For the school year beginning September, 1965, 110 Negro children elected to transfer to a White school. During the same period, no White pupil chose to transfer into the all Negro Carver. This large incidence of unilateral movement was significant. One implication was that a substantial number of Negroes felt the formerly segregated schools offered the superior academic opportunity. Conversely, it implied that the Negroes felt the academic opportunities at Carver were inferior.

5. As a direct result of the significant response to the freedom of choice plan, the District administration concluded that total integration was imminent. The initial step toward total integration, sometimes referred to as unitization, was taken in 1966 when all Carver high school students were transferred to the all White Anahuac Senior High School. This left Carver with a small student body composed of junior high and elementary students. Accordingly, fewer teachers were required and a reduction in faculty was necessary.

6. The District had never been threatened with specific official compulsion to integrate, either from the United States Department of Health, Education and Welfare, the United States Department of Justice, or any court action. Discrimination in the operation of its schools had not been officially charged. To the contrary and at all times, the District had acted promptly, prudently, and voluntarily to comply with the changing laws and court pronouncements pertaining to desegregation. In short, there is no suggestion of any dilatory tactic, foot dragging, or intransigent resistance to compliance by the District with the emerging concept of a unitary school system, that is, to unitization.

7. Having determined that total integration and a consequential reduction in faculty were imminent, the administrators also determined that some measuring stick should be adopted to rate teacher teaching ability and effectiveness. In 1965, one of the most widely used and highly respected tools for such measurement was the National Teacher's Examination. It was and is now a national instrument used in ascertaining the competency and proficiency of a classroom teacher. Using objective standards, and a complement of tests, it is designed to assess a person's cognitive knowledge and understanding of the academic preparation for teaching. Upon recommendation of the Superintendent, the Board of Trustees of the District unanimously voted to require all teachers to take the Examination. It was to be taken at the college of their choice at the District's expense. Teacher applicants were required to take or to have taken the Examination before being considered for employment. Pursuant to this stated policy, plaintiff took the National Teachers Examination in 1965 and received a composite score of 963.

8. At the February 1966 board meeting, a minimum score of 1000 was established for teachers taking the National Teachers Examination. This standard was not selected upon state or federal guidelines, for there were none. It was adopted after consultation with area educators and a study of the minimum scores established for other school districts, including the Houston Independent School District. This reasonable minimum requirement approximated a score of 500 in each of the two categories to be tested, (1) Common Examination (which included both professional and general education tests) and (2) Teaching Area Examination.

9. In 1967 the State Board of Education of Texas adopted the National Teachers Examination as a mandatory requirement for certification of teachers by the State Board. Only recently has the Examination fallen from favor as an evaluation tool and been disavowed as a tool for evaluation of teachers for retention purposes, by its authors as well as the State Board. At present, the most common and long enduring method of evaluating a teacher is by personal observation.

10. In April 1968, the Board determined that for the school year commencing ...