Arkansas Ed. Ass'n v. Board of Ed., Portland, Ark. Sch. Dist.

• Decision Date: 26 July 1971
• Docket Number: 20413.,No. 20412,20412
• Citation: 446 F.2d 763
• Parties: ARKANSAS EDUCATION ASSOCIATION et al., Appellants, v. BOARD OF EDUCATION OF the PORTLAND, ARKANSAS SCHOOL DISTRICT, et al., Appellees. ARKANSAS EDUCATION ASSOCIATION et al., Appellees, v. BOARD OF EDUCATION OF the PORTLAND, ARKANSAS SCHOOL DISTRICT, et al., Cross-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

446 F.2d 763 (1971)

ARKANSAS EDUCATION ASSOCIATION et al., Appellants, v. BOARD OF EDUCATION OF the PORTLAND, ARKANSAS SCHOOL DISTRICT, et al., Appellees.

ARKANSAS EDUCATION ASSOCIATION et al., Appellees, v. BOARD OF EDUCATION OF the PORTLAND, ARKANSAS SCHOOL DISTRICT, et al., Cross-Appellants.

Nos. 20412, 20413.

United States Court of Appeals, Eighth Circuit.

July 26, 1971.

Philip E. Kaplan, Walker, Rotenberry, Kaplan, Lavey & Hollingsworth, Little Rock, Ark., for Arkansas Education Assn., and others.

William S. Arnold, Hamburg, Ark., Arnold, Hamilton & Streetman, Crossett, Ark., for Howard Hopkins and Bd. of Ed. of the Portland, Ark., School Dist.

Before VAN OOSTERHOUT, HEANEY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This is an appeal from the dismissal of a class action brought by Arkansas Teachers Association, Inc. (ATA) on behalf of the black teachers of Portland, Arkansas School District requesting a mandatory injunction against that School District requiring it to cease discriminating against black teachers in the payment of salaries, and further requiring it to pay back wages alleged due the black teachers as a result of the alleged discrimination. We vacate the judgment of dismissal with directions.

The complaint of ATA, which was filed on June 20, 1968, also alleged that distinctions based on race were made in the recruitment, assignment and utilization of teachers and that the School District was operating a dual school system. Additional injunctive relief was requested as to these allegations. Federal jurisdiction is established. 28 U.S.C. § 1343(3) and 42 U.S.C.A. § 1983.

On July 8, 1968, Mrs. Freddie Jenkins, a black teacher employed by the School District during the period in question, filed a petition for intervention and on March 18, 1970, she was permitted to intervene as a party-plaintiff. She claimed to be a member and a representative of the class of teachers which ATA sought to represent. On May 20, 1971, subsequent to the hearing on this case by this Court, Arkansas Education Association (AEA), as the successor to the merged associations of ATA and AEA, was substituted as a party-plaintiff for ATA by order of this Court.

After this suit was commenced, but prior to trial, the School District adopted new policies relating to integration of its schools and faculty and to the future assignment, utilization and payment of all of its teachers, which apparently eliminated those issues from the trial of the case. Thus, the only real issue presented at the trial and on this appeal was the claim for the alleged discriminatory salary differential for the 1966-67 and 1967-68 school years on behalf of the black teachers employed by the School District during that period of time.

Answers to interrogatories were filed prior to trial which, together with plaintiffs' exhibit 3, showed the identity, race, salary for 1966-67, 1967-68 and 1968-69, grades and subjects taught, school, educational background, degrees, certification, and total years of teaching or administrative experience within the Portland, Arkansas School District, for each teacher employed by that School District for 1966-67, 1967-68 and 1968-69. The chart in Appendix "A" summarizes this information.

In a pretrial order, the trial court ruled that ATA had proper standing under Rule 17(a) and "was a proper, although not necessary, party to this litigation."

In a memorandum opinion of May 19, 1970, the trial court found: (1) "the only issue remaining for decision of the Court relates to the question of alleged discrimination on basis of race in payment of teachers' salaries for the school years 1966-67 and 1967-68"; (2) ATA had merged into AEA, "which association succeeds in standing with this Court as existed with the Arkansas Teachers Association, Inc."; (3) more than seventeen teachers were involved, and that this was a sufficient number of interested persons to constitute a class under Rule 23(a), Federal Rules of Civil Procedure; (4) although ATA had standing to bring this action on behalf of its members for injunctive relief under Rule 17(a), Federal Rules of Civil Procedure, it was not an individual member of the class and not a proper party to bring the suit as a class action under Rule 23(a), Federal Rules of Civil Procedure; (5) Mrs. Jenkins was a member of the class and a proper person to bring this action under said rule; (6) a school district may not constitutionally discriminate against black teachers in the payment of salaries on the basis of race; (7) each contract with both white and black teachers was made on the basis of private individual negotiation; (8) plaintiffs did not sustain the burden of proving by a preponderance of the evidence that the salary differentials resulted from racial discrimination; (9) there was no credible evidence in the record from which the Court could fix any amount of claimed damages; and (10) the "petition be and it is hereby denied and dismissed, including the prayer for attorneys' fees."

On appeal, plaintiffs claim that the trial court erred in holding: (1) that ATA was not the proper party to bring this suit as a class action under Rule 23(a), Federal Rules of Civil Procedure; (2) that disparities between salaries paid the black and white faculty members did not constitute a violation of the fourteenth amendment to the Constitution of the United States and was not the result of racial discrimination; and (3) that attorneys' fees should not be awarded.

The School District filed a cross-appeal from that part of the trial court's order finding: (1) that the persons seeking relief are of sufficient number to warrant a class action under Rule 23(a), Federal Rules of Civil Procedure; (2) that ATA has legal standing as a party litigant for any purpose; and (3) that Mrs. Freddie Jenkins is a proper person to represent an aggrieved class under the allegations of the complaint.

I.

The trial court found that more than seventeen teachers were "involved during the period of time claimed" and that this was a sufficient number to constitute a class under Rule 23(a), Federal Rules of Civil Procedure. Actually the answers to interrogatories and plaintiffs' exhibit 3 disclose that twenty black teachers were employed by the School District in either 1966-67 or 1967-68 or both.

The determination of whether or not a class is large enough to maintain an action under Rule 23(a) must be made

"in light of the particular circumstances of the case and generally, unless abuse is shown, the trial court\'s decision on this issue is final. 3 Moore, Federal Practice ¶ 23.05, at 3422 (2d ed. 1964). See In re Engelhard & Sons Co., 231 U.S. 646, 34 S.Ct. 258, 58 L.Ed. 416 (1914); Matthies v. Seymour Mfg. Co., 270 F.2d 365 (2d Cir. 1959)." Cypress v. Newport News General & Nonsectarian Hosp. Ass\'n, 375 F.2d 648, 653 (4th Cir. 1967).

See also Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1123 (5th Cir. 1969).

In this case some of the teachers no longer teach in the Portland, Arkansas School District; those teachers who remain in the school system could have a natural fear or reluctance to bring this action on an individual basis; and subsequent to filing this action, a nondiscriminatory salary schedule was adopted, thereby reducing the potential members of the class and lessening the chance of individual actions by the black teachers affected thereby.¹ Under these circumstances we can not say the trial court erred in holding there was a sufficient number of teachers to constitute a class under Rule 23(a).

II.

The trial court held that ATA (now merged into AEA) had standing to bring this action under Rule 17(a), Federal Rules of Civil Procedure, but that it was not an individual member of the class and thus not a proper party to bring the suit as a class action under Rule 23(a) which requires a class action to be brought by "one or more members of a class." (Emphasis supplied.) It also held that Mrs. Jenkins was a member of the class and a proper person to bring this class action under the rules.

This same issue as to ATA was raised in Smith v. Board of Education of Morrilton School District No. 32, 365 F.2d 770 (8th Cir. 1966). There Justice (then Circuit Judge) Blackmun stated as follows:

"We are not convinced that this standing is to be defeated, as the defendants argue, because ATA is not itself, technically, an individual member of a class. Certainly a class action, under Rule 23(a), must be brought by a member of the class. Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). But to argue that ATA here is not a member of the class for which relief is sought is, we think, but another way of arguing the question whether ATA is a real party in interest. 3 Moore\'s Federal Practice, par. 23.04 at p. 3419 (2d ed. 1964). Having held that ATA is a proper party in this latter respect, we think it follows that it is not to be dismissed from the case because of Rule 23(a). Cases such as Farmers Co-op. Oil Co. v. Socony-Vacuum Oil Co., 133 F.2d 101, 104-105 (8 Cir. 1942), and Alabama Independent Service Station Ass\'n v. Shell Petroleum Corp., 28 F.Supp. 386, 390 (N.D.Ala.1939), cited by the defendants, do not appear to us to be controlling in this area." Id. at 777.

Inasmuch as AEA, the successor in interest to ATA, has now been substituted as a party to this lawsuit, we are convinced that it not only has standing under Rule 17(a) but also that such standing should not be defeated because it is not, technically, an individual member of the class of teachers it represents. This is especially true since the trial court correctly held that Mrs. Freddie Jenkins, one of the black teachers claiming to be affected by the salary policies of the School District, is a proper party to bring this class action under Rule 23(a). Retention of AEA as a substitute party-plaintiff will serve to facilitate the contacts with former teachers which must be made in carrying out the...