Carter v. West Feliciana Parish School Board, 29745.

• Decision Date: 25 September 1970
• Docket Number: No. 29745.,29745.
• Citation: 432 F.2d 875
• Parties: Robert CARTER et al., Plaintiffs-Appellants, v. WEST FELICIANA PARISH SCHOOL BOARD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

432 F.2d 875 (1970)

Robert CARTER et al., Plaintiffs-Appellants, v. WEST FELICIANA PARISH SCHOOL BOARD et al., Defendants-Appellees.

No. 29745.

United States Court of Appeals, Fifth Circuit.

September 25, 1970.

Murphy W. Bell, Baton Rouge, La., for plaintiffs-appellants.

Jack P. F. Gremillion, Atty. Gen., State of Louisiana, Baton Rouge, La., Fred C. Jackson, Asst. Dist. Atty., Twentieth Judicial Dist. Court, St. Francisville, La., Richard H. Kilbourne, Dist. Atty., Clinton, La., for defendants-appellees.

Stephen J. Pollak, Anthony A. Lapham, Kenneth L. Penegar, David Rubin, Washington, D. C., for amicus curiae, The National Education Assn.; Shea & Gardner, Washington, D. C., of counsel.

Gerald J. Gallinghouse, U. S. Atty., Jerris Leonard, Asst. Atty. Gen., David L. Norman, Deputy Asst. Atty. Gen., Brian K. Landsberg, David D. Gregory, Attys., Civil Rights Division, U. S. Dept. of Justice, Washington, D. C., for the United States as amicus curiae.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Our opinion of August 14, 1970 is withdrawn and the following is substituted:

This school desegregation suit involving a small rural Louisiana parish was commenced July 22, 1965, resulting in the adoption of a Jefferson-model¹ freedom of choice decree in August 1967. Freedom of choice was held to be an unacceptable basis for student assignments in West Feliciana Parish as one of the cases consolidated sub nom. Hall v. St. Helena Parish School Board, 5 Cir. 1969, 417 F.2d 801, cert. denied 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180 (1969).²

On remand from Hall the district court approved a combination zoning-free choice plan which we reversed in the en banc school cases, Singleton v. Jackson Municipal Separate School District, 5 Cir. 1969, en banc, 419 F.2d 1211, 1220, reversed in part (as to timing of student reassignment) sub nom. Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970).

The district court's order on remand from Hall contained no specific provision for faculty desegregation, although the school board represented that it would attempt to obtain voluntary teachers' transfers and if necessary would adopt additional means for desegregating faculties. The school board projected that 6 of the teachers would be assigned across racial lines. In Singleton, supra, we directed the reassignment of teachers and other staff so that the ratio of white to Negro teachers and staff in each school would approximate the ratio of white to Negro teachers and staff in the system as a whole. 419 F.2d 1218. That provision and the other uniform provisions of the Singleton decree were adopted by the district court on remand.

Because their requirements are critical to our decision here, we quote the full text of paragraphs 2 and 3 of the Singleton uniform provisions relating to desegregation of faculty, and other staff:

"2. 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.

"3. 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.

"`Demotion\' as used above includes any reassignment (1) under which the staff member receives less pay or has less responsibility than under the assignment he held previously, (2) which requires a lesser degree of skill than did the assignment he held previously, or (3) under which the staff member is asked to teach a subject or grade other than one for which he is certified or for which he has had substantial experience within a reasonably current period. In general and depending upon the subject matter involved, five years is such a reasonable period." (Emphasis supplied)

Approximately 100 to 150 students withdrew from school during the 1969-70 school year as a continuation of a downward trend in enrollment for several years. As a result the school board anticipated the probable need to reduce the system's teaching staff for the opening of schools in September 1970. As one of the bases upon which to determine which teachers should not be rehired in the event dismissals become necessary the school board proposed to administer subject-matter achievement tests of the National Teachers Examination.³ It was proposed that the results of such tests would constitute one criterion for the evaluation of all teachers. Other considerations would include subjective evaluation by supervisory personnel and length of service. Supervisory personnel would be called upon to determine "the ability of the teacher to communicate, the discipline in the class, the manner of the teacher, his display of knowledge of the subject matter, his methods, techniques". No predetermined weight was given for the various factors to be considered.

The controversy before us arose from the school board memorandum directive dated April 28, 1970, to all teachers in the system from the Superintendent of Schools indicating that teachers would be required about May 1, 1970, to take the NTE test in the area of their individual certification "as a part of the West Feliciana Parish School Board's teacher evaluation program for the 1969-70 school year". On motion of the plaintiffs-appellants the trial court temporarily restrained the administration of the tests by an order of April 29, 1970, and held an evidentiary hearing on May 4, 1970 upon the application to make the injunctive order permanent.

The court below, after hearing evidence, declined to grant the permanent injunction sought, and dissolved the temporary restraining order.⁴ This appeal followed.

A member of this Court on May 7, 1970, entered an order temporarily restraining administration of the NTE tests. That order was set aside by us on May 14, 1970, when we entered an order permitting administration of the tests⁵ before the end...