Lee v. Roanoke City Board of Education, 72-1656.

• Decision Date: 28 June 1972
• Docket Number: No. 72-1656.,72-1656.
• Citation: 466 F.2d 1378
• Parties: Anthony T. LEE et al., Plaintiffs, United States of America, Intervenor and Amicus Curiae, National Education Association, Inc., Intervenor-Appellant, v. ROANOKE CITY BOARD OF EDUCATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.2d 1378 (1972)

Anthony T. LEE et al., Plaintiffs, United States of America, Intervenor and Amicus Curiae, National Education Association, Inc., Intervenor-Appellant, v. ROANOKE CITY BOARD OF EDUCATION et al., Defendants-Appellees.

No. 72-1656.

United States Court of Appeals, Fifth Circuit.

June 28, 1972.

Solomon S. Seay, Jr., Montgomery, Ala., for National Education Ass'n, Inc.

David L. Norman, Asst. U. S. Atty. Gen., Dept. of Justice, Civil Rights Div., Washington, D. C., Ira DeMent, U. S. Atty., Montgomery, Ala., for the United States.

Lewis H. Hammer, Jr., Roanoke, Ala., for Roanoke City Board of Education, and others.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

This case involves the rights of a tenured teacher displaced from her job by the court-ordered closing of a black school. We hold that the teacher, Mrs. Attrie Henderson, was protected by Singleton v. Jackson Municipal Separate School District, 5 Cir. 1969, 419 F.2d 1211, and by the district court order from "demotion" to non-tenured status. Accordingly, the Roanoke City Board of Education may dismiss her only in accordance with the procedures of Alabama law applicable to tenured teachers.

For more than fifty years, the Randolph County school system and the Roanoke City school system, Randolph County, Alabama, operated as separate entities. The Randolph County Board of Education operated a number of schools throughout the county including County Training, an all-black school within the City of Roanoke. The Roanoke City Board of Education operated one high school and one elementary school within the city limits. On June 16, 1970, a three-judge District Court for the Middle District of Alabama ordered County Training closed as part of a comprehensive desegregation order. See Lee v. Macon County Bd. of Education, M.D. Ala.1970, 317 F.Supp. 95. The Randolph County Board of Education sent letters to all teachers at County Training advising them that the school would be closed and that they would not be rehired.

On June 18, 1970, the National Education Association asked for a temporary restraining order and a preliminary injunction against the Randolph County Board to prevent the Board from cancelling these teachers' contracts. The district court, on June 23, 1970, granted a temporary restraining order and required the Randolph County Board to file with the court objective and reasonable non-discriminatory criteria to be used in hiring, dismissing, transferring, or demoting faculty and staff members.¹ The County Board filed its response, and on July 30, 1970, District Judge Frank M. Johnson entered an order requiring the City and County Boards (see footnote 1) to absorb the teachers displaced as a result of the closing of County Training, requiring the Roanoke City Board of Education to give priority to the displaced black teachers, and incorporating the Singleton requirements on desegregation of faculty and staff. See 419 F.2d 1211, 1217-1218.

Mrs. Attrie Henderson, one of the black teachers displaced by the closing of County Training, had been employed by the County Board as a teacher for thirty-one years and had taught at County Training for twenty years. She was a tenured teacher.² On June 17, 1970, she signed a contract with the Roanoke City Board of Education to teach in the City system for the 1970-71 school term. At the end of that term, the City Board would not renew her contract. Alabama law provides a comprehensive scheme governing the rights of tenured teachers, including the procedure to be used for dismissal of a tenured teacher. See Ala.Code, Title 52, § 351 et seq.³ Mrs. Henderson was not accorded the statutory procedural rights due a tenured teacher.

On November 23, 1971, the National Education Association filed a motion for supplemental relief alleging that Mrs. Henderson was dismissed contrary to the procedural requirements of Alabama law and asking that she be reinstated, awarded back pay, and given tenure rights. The N.E.A. contended that, when Mrs. Henderson was employed by the Roanoke City school system after the court-ordered closing of County Training, she retained her tenured status. The City Board contended that the dismissal was proper on the ground that Mrs. Henderson lost her tenured status when she "voluntarily" sought employment with the Roanoke City school system. On February 18, 1972, District Judge Robert Varner granted the Board's motion to dismiss the plaintiff's request for relief, holding that "tenure was terminated with the Randolph County Training School and that one year's service with the Roanoke City School System did not reinstate her to tenure rights."

In Singleton v. Jackson Municipal Separate School District, supra, this Court, sitting en banc, ordered non-discriminatory treatment of faculty and staff during the desegregation process:

Staff members who work directly with children, and professional staff who work on the administrative level will be hired, assigned, promoted, paid, demoted, dismissed, and otherwise treated without regard to race, color, or national origin.

If there is to be a reduction in the number of principals, teachers, teacher-aides, or other professional staff employed by the school district which will result in a dismissal or demotion of any such staff members, the staff member to be dismissed or demoted must be selected on the basis of objective and reasonable non-discriminatory standards from among all the staff of the school district. In addition if there is any such dismissal or demotion, no staff vacancy may be filled through recruitment of a person of a race, color, or national origin different from that of the individual dismissed or demoted until each displaced staff member who is qualified has had an opportunity to fill the vacancy and has failed to accept an offer to do so.

Prior to such a reduction, the school board will develop or require the development of nonracial objective criteria to be used in selecting the staff member who is to be dismissed or demoted. These criteria shall be available for public inspection and shall be retained by the school district. The school district also shall record and preserve the evaluation of staff members under the criteria. Such evaluation shall be made available upon request to the dismissed or demoted employee.

419 F.2d at 1218. See also United States v. Texas Education Agency (La Vega Ind. School District), 5 Cir. 1972, 452 F.2d 1203 No. 71-3135, 1972; Lee v. Macon County Bd. of Education, 5

Cir. 1971, 453 F.2d 1104. Singleton was decided on December 1, 1969, and, as a result, its requirements are clearly applicable to the present controversy.

Moreover, the district court order of July 30, 1970, incorporates the requirements of Singleton and governs the status of Mrs. Henderson. Although County Training was ordered closed by the court in June, and Mrs. Henderson was reemployed by the City school system shortly thereafter, the order, by its terms, governs this controversy. The district court order required the City Board of Education and the County Board of Education to give preference, in new hiring, to teachers displaced as a result of the closing of County Training School.⁴ The order specifically provided that the tenured teachers from County Training be "placed in positions comparable to those held by the teachers last year." This order operated to clarify the status of the displaced teachers. It was fully applicable as of the date of the closing of County Training. Even if any doubt existed as to the applicability of the order as of the earlier date, the decision in Singleton, which predated the closing, was unquestionably applicable and required the same "objective and reasonable non-discriminatory" procedures spelled out in the July 30th order.⁵

We now consider whether the refusal of the City Board to grant Mrs. Henderson tenured status was a violation of protections owed to her. It is clear, and the district court so held, that the County Training teachers were not dismissed pursuant to objective non-racial criteria. They were dismissed because an all-black school was closed by circuit order as part of the conversion to a unitary school system. The County Board compounded the non-objective dismissal by notifying the teachers that they would not be rehired because of the closing.⁶

In this circuit federal law requires that teachers displaced as a result of the court-ordered closing of a black school be given positions comparable to those they formerly occupied. Singleton requires no less, see 419 F.2d at 1218, and the district court order explicitly so requires. See footnote 4. See also Sparks v. Griffin, 5 Cir. 1972, 460 F.2d 433; United States v. Texas Education Agency (La Vega Ind. School District), 5 Cir. 1972, 452 F.2d 1203; Lee v. Macon County, 5 Cir. 1971, 453 F.2d 1104; Rauls v. Baker County, 5 Cir. 1971, 445 F.2d 825. When Mrs. Henderson was reemployed by the City Board without granting her the tenure rights she had previously held with the County Board, she was "demoted" within the terms of Singleton and not "placed in a . . . comparable position" within the terms of the district court order.⁷

We hold that Mrs. Henderson must be given tenure rights by the Roanoke City Board of Education and reinstated in her job with backpay. A contrary result would sanction an impermissible dismissal of a teacher as a result of a desegregation order, when this Court has consistently barred such dismissals except on the basis of non-racial objective criteria. See Singleton, supra.

We do not, by our decision, require the Board to retain an unqualified or incompetent...