Caldwell v. Craighead

• Decision Date: 25 September 1970
• Docket Number: No. 19776.,19776.
• Citation: 432 F.2d 213
• Parties: Mae CALDWELL, individually and on behalf of her minor son, Charles Caldwell, and all others similarly situated, Plaintiffs-Appellants, v. Donald CRAIGHEAD, as Band Instructor at Lebanon High School, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

432 F.2d 213 (1970)

Mae CALDWELL, individually and on behalf of her minor son, Charles Caldwell, and all others similarly situated, Plaintiffs-Appellants, v. Donald CRAIGHEAD, as Band Instructor at Lebanon High School, et al., Defendants-Appellees.

No. 19776.

United States Court of Appeals, Sixth Circuit.

September 25, 1970.

COPYRIGHT MATERIAL OMITTED

Reber F. Boult, Jr., Atlanta, Ga., for plaintiffs-appellants, Charles Morgan, Jr., Atlanta, Ga., on brief; Melvin L. Wulf, New York City, of counsel.

Harlan Dodson, III, Nashville, Tenn., for defendants-appellees, John J. Hooker, Sr., Nashville, Tenn., Perry H. Johnson, Philip Reed, Lebanon, Tenn., on brief.

Before EDWARDS and BROOKS, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

BROOKS, Circuit Judge.

This case on appeal is styled as a class action. It purports to raise constitutional issues of free speech, racial discrimination and violation of the Establishment Clause of the Constitution of the United States. A synopsis of the events surrounding this litigation shows that there may well be involved constitutional questions of the magnitude alleged.

Appellant Charles Caldwell, a Negro, contends that his constitutional rights (numerous constitutionally guaranteed rights have been allegedly infringed) were violated when he was suspended from participating in high school band activities at Lebanon High School because he quit playing his instrument and left the gymnasium when the pep band he was in started playing "Dixie" at a pep rally. Appellant Mae Caldwell, Charles' mother, alleges she was discharged from her job as a teacher's aide at the high school in retaliation for the support she showed her son in his protest. Apparently she was standing at the entrance of the gymnasium, and when her son left she too walked out. Finally, both appellants challenge the constitutionality of certain Christian religious services conducted by the high school during regular school hours.

The District Court proceeded directly to the merits of the case and following trial held that: Charles Caldwell's expulsion from band activities was a legitimate disciplinary dismissal made pursuant to a valid band regulation; Mae Caldwell's services were "terminated due to her unsatisfactory work" and not as a result of her supporting her son's protest; and that appellants lacked standing to challenge the constitutionality of the school conducting religious services. (This issue was presented for the District Court's consideration in a supplemental amendment to the original complaint. It seems to have been added as an afterthought. Because of the District Court's decision that appellants lacked standing, the merits of the question were not reached.)

In considering this appeal, it must be first determined whether, in fact, this action is properly brought as a class action. The District Court did not determine whether the action should have been maintained as a class action and enter the order required by Rule 23(c) of the Federal Rules of Civil Procedure. Therefore, for the purposes of jurisdiction, procedural and substantive due process and to determine the binding effect of any judgment in this matter, it must be decided if this is a proper class action. There is some question as to the correct appellate procedure to be followed when there has not previously been made a determination of whether an action is maintainable as a class action. However, the importance of the notice requirements of Rule 23 and the effect a judgment will have on absent members of the so-called class makes it imperative that the propriety of maintaining a class action be examined. If this issue has not been considered before the action comes to a reviewing court, it would appear the better practice, for reasons of judicial economy, for the appellate court to make such a determination on the basis of the record before it, rather than remanding for a decision on this question.

Appellants' complaint states that they meet the prerequisites for maintaining a class action contained in Federal Rules of Civil Procedure 23(a) and 23(b) (1), (2) and (3). Thus, they have alleged the broadest possible type of class representation.¹ The class of individuals appellants purport to represent in this litigation are all the Negroes in the State of Tennessee. Furthermore, appellants have sought to bind by any determination in this matter not only the specifically named defendants but the class of "all public school band instructors, superintendent of schools, public high school principals, and boards of education and their members in the State of Tennessee."

To decide whether this action is maintainable as a class action, the character of the interests sought to be protected by the named parties in this action must be examined and compared with those interests allegedly held in common by the group of individuals the named parties seek to represent². The gravamen of appellant Charles Caldwell's cause of action is denial of his First Amendment right to free speech.³ Allegations are made throughout the complaint that Charles' dismissal resulted from and was a deliberate act of racial discrimination. A reading of the complaint and a study of the facts surrounding this litigation reveal that the incident out of which this dispute arose obviously had racial overtones. However, conduct amounting to racial discrimination and conduct which denotes racial hostility or prejudices are not identical in the eyes of the law. While prejudice and hostility based on race are moral wrongs, unless they take concrete shape in the form of an unfair or injurious distinction (discrimination), they are not legal wrongs. Mere allegations of racial discrimination without a basis in objective fact do not make out a cause for relief on these grounds. Charles Caldwell's complaint alleges and the thrust of his proof was designed to prove that he was disciplined for exercising his First Amendment right of free speech. He has not made out a case for the proposition that his disciplining was a result of racial discrimination. Similarly, Mrs. Caldwell's dismissal, while alleged to be a "retaliatory act of racial discrimination", a fair reading of her complaint indicates that if the allegations are true she was discharged for exercising her right to free speech by engaging in conduct expressing her support of Charles' protest.

The fact that these were Negroes who were allegedly exercising their freedom of speech on a subject having racial characteristics tends to blur the true nature of the high school officials' conduct drawn into question by this litigation. Stripping away all overtones of race involved here, which in and of themselves do not amount to racial discrimination, this controversy can be recognized for what it is — a dispute over alleged infringement of First Amendment rights.

This leads to the issue involved, that is, determining whether this action is properly maintainable as a class action. There is no doubt that if this were an action to remedy racial discrimination in education or employment practices, appellants could exert their rights to be free from injurious and arbitrary distinctions based on race through the class action device. See Whitmyer v. Lincoln Parish School Board, 75 F.Supp. 686 (D.C.1948) and Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Brunson v. Board of Trustees of School District No. 1 of Clarendon County, South Carolina, 311 F.2d 107 (4th Cir. 1962). In that type of case, appellants would be able to represent the class of all Negroes in the State of Tennessee who are similarly situated. However, here we have two plaintiffs attempting to enforce their individual rights in a form which makes them representative of a select segment of the population of a state, the Negro population, when the entire citizenry are equally guaranteed these rights. As an abstract and general proposition, these appellants have a guaranteed right or claim which is common and shared by all citizens of this country. However, on an individual and more concrete level, the rights appellants are attempting to enforce are separate and distinguishable from the broad and amorphous general right to free speech guaranteed to all citizens of the United States. In short, we hold that the rights appellants are allegedly attempting to enforce in this action are individual rights arising out of a unique fact situation, and the class action technique is not designed to be used in these types of cases.

These same observations apply with equal force to the defendants' so-called "class". Here the requirement that the defenses of the representative parties be typical of those of the class cannot be met. Nor can it be said that there are questions of law or fact common or shared by the named defendants, and the much larger class they are supposed to represent in this litigation. At best, appellants can only make defendants those individuals specifically named in the complaint.

The effect of this determination of this question is to deny the named plaintiffs and defendants any representative capacity for unnamed members of their so-called class. Thus, the parties in this litigation are reduced to two plaintiffs and ten defendants. Since eliminating the class action name given to this action does not necessarily result in loss of the federal jurisdiction, see Harris v. Palm Springs Alpine Estates, 329 F.2d 909 (9th Cir. 1964), an issue which might affect the power to render a decision in this matter must now be considered.

It appears that Charles Caldwell and his family have moved from Lebanon to Nashville, Tennessee. Charles is presently enrolled in a high school where "Dixie" is either not played or he is not required to play it. Having had these facts presented, it must be considered whether this conduct of one of the litigants, subsequent to initiation of this lawsuit, moots the action.

While Charles' complaint prays for declaratory and...