Ayers v. Western Line Consol. School Dist.

• Decision Date: 18 July 1977
• Docket Number: No. 75-3485,75-3485
• Citation: 555 F.2d 1309
• Parties: 18 Fair Empl.Prac.Cas. 1407, 14 Empl. Prac. Dec. P 7767 Henry B. AYERS et al., Plaintiffs, v. WESTERN LINE CONSOLIDATED SCHOOL DISTRICT et al., Defendants-Appellants, v. Ms. Bessie B. GIVHAN et al., Plaintiffs-Intervenors Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1309

555 F.2d 1309

18 Fair Empl.Prac.Cas. 1407, 14 Empl. Prac.

Dec. P 7767

Henry B. AYERS et al., Plaintiffs, v. WESTERN LINE CONSOLIDATED SCHOOL DISTRICT et al., Defendants-Appellants, v. Ms. Bessie B. GIVHAN et al., Plaintiffs-Intervenors Appellees.

No. 75-3485.

United States Court of Appeals, Fifth Circuit.

July 18, 1977.

J. Robertshaw, Greenville, Miss., for Western, etc.

James L. Robertson, Greenville, Miss., for Washington, etc.

Fred Banks, Jr., Nausead Stewart, Phillip J. Brookins, Jackson, Miss, for plaintiffs-intervenors appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GEWIN, RONEY and HILL, Circuit Judges.

GEWIN, Circuit Judge.

Mary Butler, Bessie Givhan, and Dolleye Hodges filed suit in district court on their own behalf and on behalf of three classes of black teachers and employees who were discharged or not rehired by the Board of Education of the Western Line Consolidated School District ("school district"), allegedly in violation of the First and Fourteenth Amendments and in violation of the district court order issued pursuant to Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1969) (en banc), rev'd and remanded sub nom. Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970), on remand, 5 Cir., 425 F.2d 1211. The district court dismissed the action without prejudice and granted leave to intervene in the instant school desegregation case. After the court granted the defendants' ¹ motion to strike the class allegations ² and dismissed Ms. Butler's action with prejudice on her own motion, the case proceeded to a two-day bench trial. The court concluded that the school district failed to rehire Givhan because of her First Amendment expressions and failed to rehire Hodges in violation of the Singleton order, and it ordered their reinstatement. Defendants appeal under 28 U.S.C. § 1292(a)(1). ³ We reverse and remand.

The school district is a rural district encompassing most of Washington County and some of Issaquena County, Mississippi. Prior to desegregation proceedings in the district court it operated three black schools (O'Bannon, Avon, and Moore) and two white schools (Riverside and Glen Allan). Pursuant to Singleton, accelerated by West Feliciana Parish School Board, supra, the district court on January 12 and January 21, 1970, ordered the operation of the school district on a unitary basis after February 9, 1970. ⁴ Accordingly, the district was reconstituted into one high school and two elementary schools for the second semester of the 1969-70 school year. In the summer of 1970 the desegregation plan was amended to establish attendance centers with grades 1-12 at O'Bannon, Riverside, and Glen Allan. Blacks constituted a majority of the faculty and student body in the district both before and after desegregation. It is undisputed that the school district failed to develop nonracial objective criteria to be used in selecting staff members for dismissal or demotion, as required by the district court's Singleton order in note 4 supra.

Appellee Givhan taught English in the junior high grades at O'Bannon from 1963 until her transfer to Riverside for the second semester of 1969-70. She then taught junior high English at Glen Allan during the 1970-71 school year. Appellee Hodges taught fifth grade for nearly four years at Glen Allan until January, 1970. At that time she became certified as a guidance counselor under an "eighteen hour permit," and thereafter she held the position of guidance counselor at Glen Allan. Having received her Master of Education degree in the spring of 1971, Hodges held a "double A" certificate as a guidance counselor during the 1971-72 school year. Beyond these facts, the cases of Givhan and Hodges are best treated separately.

I. Givhan

Givhan was not rehired by the school district for the 1971-72 school year. ⁵ By letter dated May 1, 1971, Glen Allan principal James Leach notified Superintendent C. L. Morris that Ms. Givhan was not being recommended for re-employment, stating in part:

Ms. Givhan is a competent teacher, however, on many occasions she has taken an insulting and hostile attitude towards me and other administrators. She hampers my job greatly by making petty and unreasonable demands. She is overly critical for a reasonable working relationship to exist between us. She also refused to give achievement tests to her homeroom students. ⁶

Leach testified at trial as to the bases for his recommendation. Leach taught in the district for three years before becoming principal of Glen Allan on October 6, 1970. That school was without a principal for the first several weeks of the 1970-71 school year, and when Leach took the position the school's problems included racial hostility, lack of discipline among the students, and lack of cooperation among the teachers. Shortly after his arrival as principal, Leach solicited greater cooperation at a teachers' meeting. Givhan implied at the meeting that she did not intend to cooperate very much, and Leach later held a private conference with her. Leach testified that at the conference Givhan told him that "she didn't like Western Line District. She didn't like Morris, who was the Superintendent, or anything connected with the system." Givhan denied making these statements.

Leach and Givhan had several other encounters during the 1970-71 school year. Leach sent out a memorandum to all teachers reminding them of "six-weeks' tests" to be given on the Thursday and Friday before report cards were to be issued on the following Wednesday. Givhan apparently thought the memorandum was insufficient advance warning; while students were changing classes she discussed (or perhaps argued) with Leach about the inadequate notice and whether she was to give a "pop test." Leach interpreted this challenge to him in front of students as reflecting her antagonism. Givhan in effect admitted the incident, but explained that her concern for timely notice was generated by the memorandum's subject relating to the more comprehensive semester, not six-weeks', tests.

Another incident involved administration of a standardized achievement test. According to Leach, Givhan announced at a faculty meeting that she would not give the test, as she thought it was part of Ms. Hodges' job. Leach was later twice informed by Hodges that Givhan still refused to give the test, and he testified that Hodges administered the test. Givhan testified that she may have expressed an intent not to give the test and that she told Leach it was a duty of the guidance counselor. She further testified that on the morning of the test she told Leach she would administer it and that she in fact did so. The latter testimony was corroborated by Hodges and Arcell Jacobs, another Glen Allan teacher at the time.

Finally, there was substantial testimony about "demands" made upon Leach by Givhan. ⁷ Relatively early in Leach's tenure as principal Givhan gave him a list or lists of what he termed "demands" and she termed "requests." These requests all reflect Givhan's concern as to the impressions on black students of the respective roles of whites and blacks in the school environment. She "requested," among other things: (1) that black people be placed in the cafeteria to take up tickets, jobs Givhan considered "choice"; (2) that the administrative staff be better integrated; ⁸ and (3) that black Neighborhood Youth Corps ("NYC") workers be assigned semi-clerical office tasks instead of only janitorial-type work.

Leach felt that these requests were unreasonable and that they therefore manifested, along with the other incidents noted above, Givhan's antagonistic and hostile attitude toward the administration at Glen Allan and the district. According to Leach, the lunchroom ticket-takers were assigned by the district's overall cafeteria supervisor (a white) at the request of the Glen Allan lunchroom manager (a black). Thus, Leach apparently thought that the assignment of lunchroom personnel was not within his power. ⁹ Givhan's NYC complaint arose from her concern about the impression on black children of a virtually all-white office staff and discrimination she sensed in the assignment of NYC workers. As she explained it, "when I was at Riverside, when we had white NYC workers and black, and whites worked in the office and the blacks washed the windows . . . I was pointing out to Mr. Leach the discrepancies there in the duties." Leach testified that he was ignorant about assignment of NYC workers at other schools, but thought Givhan's request unreasonable because there was no discrimination in his assignments, as the Glen Allan NYC workers were all black, and because NYC workers there were not qualified to do office work and in fact were hired to do janitorial work.

In sum, Leach testified that he recommended not rehiring Givhan because of her "arrogance and antagonistic and hostile relationship," manifested in the incidents described above, particularly her "unreasonable demands."

Under Mississippi law in effect when the decision was made not to rehire Givhan, teachers had no tenure and teachers had no right to be tendered another contract. Miss.Code Ann. § 37-9-17 (1972); Henry v. Coahoma County Board of Education, 246 F.Supp. 517, 521 (N.D.Miss.1963), aff'd, 353 F.2d 648, 650 (5th Cir. 1965), cert. denied, 384 U.S. 962, 86 S.Ct. 1586, 16 L.Ed.2d 674 (1966). Accordingly, as stated by Judge Roney in Megill v. Board of Regents, 541 F.2d 1073, 1077 (5th Cir. 1976), the school district was entitled not to rehire Givhan for any reason, as long as the decision did not implicate a constitutional right. Thompson v. Madison County Board of Education, 476 F.2d 676, 679 (5th Cir. 1973). Further, because Givhan had no property interest in continued employment into the 1971-72 school year, she had no due process right to a hearing. ¹⁰ Robinson v....