Alston v. School Board of City of Norfolk

• Citation: 112 F.2d 992
• Decision Date: 18 June 1940
• Docket Number: No. 4623.,4623.
• Parties: ALSTON et al. v. SCHOOL BOARD OF CITY OF NORFOLK et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

112 F.2d 992 (1940)

ALSTON et al. v. SCHOOL BOARD OF CITY OF NORFOLK et al.

No. 4623.

Circuit Court of Appeals, Fourth Circuit.

June 18, 1940.

Thurgood Marshall, of New York City, and William H. Hastie, of Washington, D. C. (Oliver W. Hill of Richmond, Va. and Leon A. Ranson, of Washington, D. C., on the brief), for appellants.

Alfred Anderson and Jonathan W. Old, Jr., both of Norfolk, Va. (William C. Coupland, of Norfolk, Va., on the brief), for appellees.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal in a suit instituted by Melvin O. Alston, a Negro school teacher of Norfolk, Va., and the Norfolk Teachers' Association, an association composed of the Negro school teachers of that city, against the School Board and the Superintendent of Schools of the city. The purpose of the suit is to obtain a declaratory judgment, to the effect that the policy of defendants in maintaining a salary schedule which fixes the salaries of Negro teachers at a lower rate than that paid to white teachers of equal qualifications and experience, and performing the same duties and services, on the sole basis of race and color, is violative of the due process and equal protection clauses of the 14th amendment, and also to obtain an injunction restraining defendants from making any distinction on the ground of race or color in fixing the salaries of public school teachers in Norfolk. The suit was dismissed by the court below on the ground that Alston and the School Board were the only necessary parties to the cause and that Alston had waived such constitutional rights as he was seeking to enforce by having entered into a written contract with the School Board to teach for a year at the price fixed in the contract. On the appeal presented by the plaintiffs three questions arise: (1) whether upon the face of the complaint an unconstitutional discrimination is shown in the fixing of school teachers' salaries by the defendants; (2) whether rights of plaintiffs are infringed by such discrimination; and (3) whether plaintiffs have waived their right to complain of the discrimination by entering into contracts with the School Board for the current year.

On the first question, there can be no doubt but that the fixing of salary schedules for the teachers is action by the state which is subject to the limitations prescribed by the 14th Amendment. The Constitution of Virginia provides that the General Assembly shall establish and maintain an efficient system of public free schools throughout the state. Article IX, sec. 129. The General Assembly has established such a system. Virginia Code of 1936, chs. 33 and 35. The public schools of the City of Norfolk are under the direct control and supervision of the defendants, whose duty it is to employ teachers and provide for the payment of teachers' salaries. Virginia Code, ch. 33, secs. 656, 660, and ch. 35, sec. 786. While provision is made in the law for separate schools for white and colored persons, the positive duty is enjoined of maintaining these separate schools under the same general regulations as to management, usefulness and efficiency. Virginia Code, sec. 680. All teachers are required to hold teaching certificates in accordance with the rules of certification of the State Board of Education. Virginia Code, ch. 33, sec. 660 and ch. 35, sec. 786. White and Negro teachers must meet the same requirements to receive teachers certificates from the Board of Education and upon qualifying are issued identical certificates.

The allegations of the complaint as to discrimination, which are denied in the answer, but which must be taken as true on the motion to dismiss, are as follows:

"11. Defendants over a long period of years have consistently pursued and maintained and are now pursuing and maintaining the policy, custom, and usage of paying Negro teachers and principals in the public schools in Norfolk less salary than white teachers and principals in said public school system possessing the same professional qualifications, certificates and experience, exercising the same duties and performing the same services as Negro teachers and principals. Such discrimination is being practiced against the plaintiffs and all other Negro teachers and principals in Norfolk, Virginia, and is based solely upon their race or color.

"12. The plaintiff Alston and all of the members of the plaintiff association and all other Negro teachers and principals in public schools in the City of Norfolk are teachers by profession and are specially trained for their calling. By rules, regulations, practice, usage and custom of the Commonwealth acting by and through the defendants as its agents and agencies, the plaintiff Alston and all of the members of the plaintiff association and all other Negro teachers and principals in the City of Norfolk are being denied the equal protection of the laws in that solely by reason of their race and color they are being denied compensation from public funds for their services as teachers equal to the compensation provided from public funds for and being paid to white teachers with equal qualifications and experience for equivalent services pursuant to rules, regulations, custom and practice of the Commonwealth acting by and through its agents and agencies, the School Board of the City of Norfolk and the Superintendent of Schools of Norfolk, Virginia.

"13. Plaintiff, Melvin O. Alston, has been employed as a regular male teacher by the defendants since September, 1935, and is in his fifth year of experience as a regular teacher in the Booker T. Washington High School, a public high school maintained and operated under the direct control, supervision, rules and regulations of the defendants. He successfully completed the course of instruction provided at Virginia State College for Negroes, an accredited college maintained and operated by the State of Virginia for the instruction and preparation of Negroes as teachers in the public schools of the State. He holds a Collegiate Professional Certificate, the highest certificate issued by the Virginia State Board of Education for teaching in the public high schools of Virginia. In order to qualify for this certificate plaintiff has satisfied the same requirements as those exacted of all other teachers, white as well as Negro, qualifying therefor, and he exercises the same duties and performs services substantially equivalent to those performed by other holders of the said certificate, white as well as Negro, yet all white male teachers in Norfolk who hold the said certificate with equal and less experience receive salaries much larger than the salary paid the plaintiff.

"14. White male high school teachers employed by defendants whose qualifications, certification, duties and services are the same as plaintiff's are being paid by defendants a minimum annual salary of Twelve Hundred ($1200.00) Dollars.

"15. Plaintiff Alston is being paid by the defendants for his services this school year as a regular male high school teacher as aforesaid an annual salary of Nine Hundred and Twenty-one ($921.00) Dollars, being the amount fixed by defendants for Negro male high school teachers in their fifth year of teaching experience and solely because of the practice, usage and custom complained of in paragraph 11 of this complaint, and by the operation of the discriminatory salary schedule described in paragraphs 16 and 17 of this complaint the plaintiffs have been, are, and unless relief shall be granted by this Honorable Court as hereinafter prayed, will continue to be denied, solely by reason of race and color the opportunity to receive a higher salary equal to that paid to any white teachers similarly situated.

"16. Pursuant to the policy, custom and usage set out in paragraph 12 the defendants acting as agents and agencies of the Commonwealth of Virginia have established and maintained a salary schedule used by them to fix the amount of compensation for teachers and principals in the public schools of Norfolk which discriminates against plaintiffs solely because of their race or color. All teachers and principals in the public schools of Norfolk, including the plaintiffs, have been, are being and will continue to be paid by defendants pursuant to the following salary schedule adopted, maintained and being enforced by the defendants for the school year 1939-1940:

                                                          Maximum salary
                                                          being paid (affecting
                                         Salaries now     only those
                                         being paid       in system before
                                         teachers new     increment plan
                  Negro                  to the system.   was discontinued.)
                  Elementary
                    Normal Certificate     $  597.50           $  960.10
                    Degree                    611.00              960.00
                  High School
                    Women                     699.00            1,105.20
                    Men                       784.50            1,235.00
                  White
                  Elementary
                    Normal Certificate        850.00            1,425.00
                    Degree                    937.00            1,425.00
                  High School
                    Women                     970.00            1,900.00
                    Men                     1,200.00            2,185.00
                

The practical application of this salary schedule has been, is, and will be to pay Negro teachers and principals of equal qualifications, certification and experience with white teachers and principals less compensation from public funds solely on account of their race or color."

"19. The salaries of all teachers and principals in the public schools of the City of Norfolk,...