McFerren v. County Board of Ed. of Fayette Co., Tenn., 71-1206.

• Citation: 455 F.2d 199
• Decision Date: 28 January 1972
• Docket Number: No. 71-1206.,71-1206.
• Parties: John McFERREN, Jr., et al., Plaintiffs, and United States of America, Plaintiff-Intervenor, and Mrs. Mable C. Walker et al., Intervening Plaintiffs-Appellees, v. COUNTY BOARD OF EDUCATION OF FAYETTE COUNTY, TENNESSEE, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

455 F.2d 199 (1972)

John McFERREN, Jr., et al., Plaintiffs, and United States of America, Plaintiff-Intervenor, and Mrs. Mable C. Walker et al., Intervening Plaintiffs-Appellees, v. COUNTY BOARD OF EDUCATION OF FAYETTE COUNTY, TENNESSEE, et al., Defendants-Appellants.

No. 71-1206.

United States Court of Appeals, Sixth Circuit.

January 28, 1972.

Jerome Turner, Memphis, Tenn., Canada, Russell & Turner, Memphis, Tenn., of counsel, for appellant.

Norman J. Chachkin, New York City, and Avon N. Williams, Jr., Nashville, Tenn., Jack Greenberg, James M. Nabrit, III, Sylvia Drew, New York City, on brief, for appellees.

Thomas M. Keeling, Department of Justice, Washington, D. C., David L. Norman, Acting Asst. Atty. Gen., Brian K. Landsberg, Ben L. Krage, Paul F. Hancock, Attys., Department of Justice, Washington, D. C., Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief, for United States.

Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.

EDWARDS, Circuit Judge.

Appellant school board appeals from an order entered in the United States District Court for the Western District of Tennessee, Western Division, requiring it to rehire 13 discharged school teachers with back pay.

In this case an all white school board in a Tennessee County with 75% black population was required by federal court order to unify its previously unconstitutionally separated black and white school systems. One of its responses was to discharge 22 teachers, 15 of them black and seven of them white. Only one of the white teachers discharged had more than two years service. Most of the 13 black teachers who filed this complaint had periods of service of many years (extending up to 35 years) with this same board.

Prior to the desegregation order, all except one of the discharged teachers had been used at all black schools. It apparently seemed obvious to the District Judge, as it does likewise to us, that appellant board had for many years considered these complainants good enough teachers to teach black students, but in the face of the desegregation order, suddenly determined that they were not good enough to teach white students. The District Judge held that in such circumstances the burden of proof to show nondiscrimination in these discharges fell upon the appellant board and that it had not carried that burden. Rolfe v. County Board of Education, 391 F.2d 77 (6th Cir. 1968). We agree.

After these discharges, approximately 40 teachers resigned from the Fayette County school system, and as a result, in the summer of 1970, the Board hired an additional 52 teachers. The overwhelming majority of the teachers hired were white. The Board did not rehire any of those who had been discharged.

In this case both sides agree that Rolfe v. County Board of Education, 391 F.2d 77 (6th Cir. 1968), states the controlling rule:

"The rule is that teachers displaced from a school with a racially homogeneous faculty, because of a decrease in students, must be judged for continued employment by definite objective standards with all other teachers in the system . . . .

"Moreover, where a history of racial discrimination is shown to exist, as is the case here, the burden of showing nondiscrimination is on the party having the power to produce the facts. Chambers v. Hendersonville City Board of Education, supra, 364 F.2d 189 (4th Cir. 1966)." Rolfe v. County Board of Education, supra at 80.

In a careful opinion after full hearing, the District Judge found that the school board did not employ definite objective standards in determining who should be discharged. He also held that "a nontenure teacher, who has long periods of service with the system acquires a protectible interest in his continued employment and his nonreelection must meet minimal standards of procedural due process," citing Lucas v. Chapman, 430 F.2d 945 (5th Cir. 1970), and Gouge v. Joint School Dist. No. 1, 310 F.Supp. 984 (W.D.Wis.1970).

We agree fully with the District Judge's conclusion that the standards employed by the school board were not "definite objective standards" equally applied to all other teachers in the school system. Under the standards employed no comparison at all was made on the basis of years of experience accomplished in black schools to the apparent complete satisfaction of the school board. The standards employed were basically whether or not the teacher had achieved tenure (as that term was newly interpreted) and whether or not there had been complaints. Many of the complaints relied on for discharge pertained to events of long past years which had obviously not been thought to require disciplinary action at the time.

Further, we approve the District Judge's view that a nontenure teacher with long years of service has a protectible interest in his employment, certainly against racially motivated discharge. The facts of this case distinguish it from Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), where this court held that a probationary teacher of one year's service did not have a due process right to a hearing and a statement of reasons for nonrehire. In Orr, however, the court clearly recognized that race discrimination was a constitutionally impermissible reason for failure to rehire even a one-year probationary employee. Orr v. Trinter, supra at 134. See also Sindermann v. Perry, 430 F.2d 939 (5th Cir. 1970), cert. granted, 403 U.S. 917, 91 S.Ct. 2226, 29 L.Ed.2d 694 (1971); Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966), cert. denied, 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed.2d 542 (1967). Cf. Jones v. Hopper, 410 F.2d 1323 (10th Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1111, 25 L.Ed.2d 399 (1970).

In our instant case plaintiffs had been employed for terms running up to 35 years and many of them had understood (as did the School Board) that they had tenure. In the year when this dispute arose, a new superintendent discovered that as to teachers of over three years' service who did not have degrees, 12 hours of college work within three years were required for "limited tenure" under state law. No attempt was made to notify the teachers affected of the effect as to them of this new interpretation and no provision at all was made for their being given an opportunity to fulfill the requirement.

This record falls far short of demonstrating equitable handling of the work force reduction problem resulting from the desegregation order.

For the reasons cited and those more fully set forth in the opinion of the District Judge, we agree with the District Judge that appellant School Board did not carry its burden of showing that these discharges were nondiscriminatory.

Another issue in this case is the portion of the District Judge's order requiring the School Board to pay back pay to the teachers found to have been illegally discharged. Appellant Board contends that his order deprived them of the right to a jury trial in relation to a money damage issue. The District Judge and the appellees rely upon NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), where the Supreme Court said in part that the Seventh Amendment "has no application to cases where recovery of money damages is an incident to equitable relief."

The same holding has been entered in the context of racial discharge cases by the Fourth and Fifth Circuits in Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966), and Harkless v. Sweeney Independent School District, 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971).

In this last case (a case like this involving discriminatory discharge of teachers) the Fifth Circuit discussed the Seventh Amendment issue:

"The last question to be reached is the propriety of the grant of a jury trial. The district court determined that the back pay and the factual issues involved in the prayer for injunctive relief presented jury issues and, therefore, granted defendants\' demand for jury trial. The law seems otherwise.

"Section 1983 was designed to provide a comprehensive remedy for the deprivation of federal constitutional and statutory rights. The prayer for back pay is not a claim for damages, but is an integral part of the equitable remedy of injunctive reinstatement. Reinstatement involves a return of the plaintiffs to the positions they held before the alleged unconstitutional failure to renew their contracts. An inextricable part of the restoration to prior status is the payment of back wages properly owing to the plaintiffs, diminished by their earnings, if any, in the interim. Back pay is merely an element of the equitable remedy of reinstatement. See Smith v. Hampton Training School for Nurses, supra. See also NLRB v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 48, 57 S.Ct. 615, 81 L.Ed. 893; Agwilines, Inc. v. NLRB, 5 Cir., 1936, 87 F.2d 146, 151.

"The district court concluded that NLRB v. Jones and Laughlin Steel Corp., supra, and Agwilines, Inc. v. NLRB, supra, were no longer viable in light of the more recent decisions of Beacon Theatres, Inc. v. Westover, 1959, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988; Dairy Queen, Inc. v. Wood, 1962, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44; and Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp., 5 Cir., 1961, 294 F.2d 486, 489. None of these cases involved back pay. Each involved separate equitable and legal claims joined in the same case. The legal claims were for resolution by the jury. The back pay issue here was not a separate legal claim—rather it was a part of the main equitable claim —reinstatement. The same is true as to the underlying factual issues pertaining to the claims to reinstatement.

"This circuit has rejected the view `* * * that the trio of Beason Theatres, Dairy Queen, and Thermo-Stitch is a catalyst which suddenly converts any money request into a money claim triable by jury.\' Swofford v. B & W Incorporated, 5 Cir., 1964, 336 F.2d 406, 414. In an action by the Secretary of Labor for

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