Cook v. Davis, 12727.

• Decision Date: 06 February 1950
• Docket Number: No. 12727.,12727.
• Parties: COOK et al. v. DAVIS.
• Court: U.S. Court of Appeals — Fifth Circuit

178 F.2d 595 (1949)

COOK et al. v. DAVIS.

No. 12727.

United States Court of Appeals Fifth Circuit.

December 28, 1949.

Rehearing Denied February 6, 1950.

B. D. Murphy, Atlanta, Ga., J. M. B. Bloodworth, Atlanta, Ga., J. C. Savage, Atlanta, Ga., for appellant.

A. T. Walden, Atlanta, Ga., Oliver W. Hill, Richmond, Va. for appellee.

Before HOLMES, WALLER and SIBLEY, Circuit Judges.

SIBLEY, Circuit Judge.

Samuel Davis was in 1943 and still is a Negro teacher in the high schools for colored pupils in the City of Atlanta, Ga. Claiming that he and others similarly situated were by the Board of Education of the City of Atlanta discriminated against in salary as compared with white teachers having the same qualifications and duties solely because of his race and color contrary to the equal protection and due process clauses of the Fourteenth Amendment of the Constitution, he in his own behalf and in behalf of others similarly situated on July 2, 1943, filed in the district court a brief complaint against the members of the Board and against Willis A. Sutton, then Superintendent of Schools in Atlanta, praying for a declaratory judgment that their conduct is a violation of the Amendment, and for an injunction against them and their successors forbidding such conduct. A motion to dismiss was made, a principal ground of which was that the suit, being in purpose and effect a suit against the State of Georgia without the State's consent, is not within the judicial power of the United States under the Eleventh Amendment of the Constitution. The motion was overruled. An answer was made denying a present discrimination, but admitting that prior to Feb. 17, 1942, the State Board of Education had adopted separate schedules for white and colored teachers, over which the defendants have no control, and had delivered the money contributed by the State to maintain the schools in Atlanta for seven months in the year to be paid out by defendants in accordance with those schedules; and that defendants as the Board of Education of Atlanta, being authorized by law to extend the school term beyond seven months and to supplement salaries, had also adopted its separate salary schedules for white and colored teachers to be used in disbursing the money furnished for these uses by the City of Atlanta; that these separate schedules contained variations in salary between white and colored teachers and were apparently discriminatory, but the differences were not made on account of race and color but for other stated reasons in the exercise of their judgment in the effort to do what was fair to the teachers and the public; that on Feb. 17, 1942, a complaint similar to the present one was filed by William H. Reeves, and in response to it all the salary schedules of the Atlanta Board of Education were by it expressly abolished, and direction was given for the working out of a single salary plan for all teachers based on the merit of each and fixing a fair and just salary for each teacher.¹ Such a plan had, after delay due to the number of teachers and the difficulties encountered, been worked out and adopted by the Atlanta Board, and at the filing of the answer in July, 1944, the Superintendent of Schools was engaged in classifying the individual teachers under it. There were more than 1400 teachers. The answer denied that any controversy presently existed.

The Superintendent, Willis A. Sutton, having resigned, on motion of plaintiff the suit was on Nov. 3, 1947, dismissed as to him. A new Superintendent was elected, Miss Jarrell, but she was not made a party. After a lengthy trial on the merits the judge on Sept. 28, 1948, made findings of fact and conclusions of law ultimately unfavorable to the defendants, and on Dec. 18, 1948, made a decree against them declaring that their conduct and policy as officers "In paying to plaintiff and other Negro teachers and principals in the public schools in Atlanta, Ga., smaller salaries than are paid by said defendants to white teachers and principals with equal qualifications and experience, insofar as such differentials are predicated solely on race or color, * * * are unlawful and unconstitutional and in violation of the equal protection clause of the Fourteenth Amendment of the Constitution and of Sections 41 and 43 of Title 8 of the United States Code". The decree then perpetually enjoins the defendants from "Discriminating in the payment of salaries against plaintiff and other negro teachers and principals in the public schools in Atlanta, Georgia, and in favor of white teachers and principals in said public schools on account of race or color." This appeal followed.

On the motion to dismiss and on the situation proven in the trial, we find it necessary to consider and decide three questions of a preliminary kind: Is the suit really against the State of Georgia and therefore not within the federal judicial power under the Eleventh Amendment of the Constitution? Are the acts of the defendants in fixing school teachers' salaries acts of the State within the prohibitions of the Fourteenth Amendment? Is it necessary before complaining in the federal courts to exhaust administrative remedies provided by State law? To answer them we must understand the educational set-up of the State of Georgia.

The State Constitution of 1868, directed the General Assembly at its first session to provide for "A thorough system of general education, to be forever free to all children of the State". Art. 6. The Constitution of 1877 restricted the public education to the "Elementary branches of an English education", Art. 8, § 5, par. 1, and ordered that "Separate schools shall be provided for the white and colored races." Art. 8, § 1, par. 1. Local school systems were preserved. In 1945 a new Constitution was adopted, Article VIII of which says: "The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation. Separate schools shall be provided for the white and colored races." § 1, par. 1. It provides for a State Board of Education appointed by the Governor with the advice and consent of the Senate, but that the first Board shall consist of those in office at the time the Constitution is adopted with the terms then provided by law, but succeeding appointments to be for seven years; with powers and duties such as now exist or as may hereafter be provided by law. A State School Superintendent elected by the people for four years and County School Superintendents elected in each County for four years are also provided for. Section VII is: "Authority is hereby granted to municipal corporations to maintain existing independent school systems, and support the same as authorized by special or general law * * *. No independent school system shall hereafter be established." par. 1. The City of Atlanta and several other larger cities have long had local school systems supported in part by the State and in part by the City, but not a part of the system of county schools nor subject in any manner to the control of the County School Superintendents, and in that sense they are called independent systems. Under the city charter and applicable laws the Atlanta school system is governed by a Board of Education of the City of Atlanta, at present the defendants, and a Superintendent of Schools of Atlanta. These are all public officers having a mode of appointment or election, a term of office, a salary, and duties fixed by law or city ordinance. Prior to 1937 the control of the Atlanta Board was practically complete. The State's money for schools was prorated by the State School Superintendent according to school population among the several Counties, and when a County had within it an independent School System that county's share was prorated similarly between the independent system and the county system, the former using its share as it saw fit. By the Act of Feb. 10, 1937, Georgia Acts 1937, p. 864, the State legislature repealed the previous law establishing a State Board of Education and set up a new one to consist of the Governor and a member from each of the ten Congressional districts of the State, having specified qualifications, taking an oath, receiving specified pay, and with the powers and duties of the former Board with these additional ones: To make rules and regulations for the supervision of all the public schools of the State; provide courses of study; and "for the classification and certification of teachers"; and rules and regulations "for the operation of the common schools and for the administration of the common school fund." Estimates for the operation of the State public school system are to be by the Board submitted annually to the Governor and General Assembly. The State School Superintendent "shall enforce and administer the regulations adopted by the State Board of Education." Ga.Code Ann. § 32-504. This Act may be found in Georgia Code, Annotated, §§ 32-427. Another Act of the same Legislature, called the Equalization of Educational Opportunities Act, Acts of 1937, p. 882, Ga.Code, Ann. §§ 32-601 to 32-624, modified the school law greatly. By it the public schools of the State must be operated not less than seven school months in each school year; the several counties and independent school systems are made the "local units of administration"; in each local unit teachers and principals shall be elected by the respective boards of education on recommendation of their respective superintendents; and the superintendents and boards of education of the respective local units shall execute the provisions of the law under such regulations as may be adopted by the State Board of Education. Then came a provision, § 32-607, which excepted schools which operated under special Acts where the latter conflict with the new law. The independent schools of the City of Savannah were held to be entitled to continue under...