Cook v. Hudson
| Decision Date | 21 April 1975 |
| Docket Number | No. 74--1038,74--1038 |
| Citation | 511 F.2d 744 |
| Parties | 9 Empl. Prac. Dec. P 10,134 Billy D. COOK et al., Plaintiffs-Appellants, v. Robert W. HUDSON, etc., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John B. Farese, Ashland, Miss., for plaintiffs-appellants.
Will A. Hickman, S. T. Rayburn, Oxford, Miss., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Mississippi.
Before COLEMAN, CLARK and RONEY, Circuit Judges.
Appellants are three school teachers formerly employed in the Calhoun County, Mississippi public school system. Each was refused reemployment for the 1973--74 school year by the Calhoun County Board of Education pursuant to an unwritten board policy that prohibited the hiring of any teacher whose own children did not attend the public schools. At the time the hiring decision was made, appellants' children were enrolled in the Calhoun Academy, an all-white, secular private school located in Calhoun County. Pursuant to the policy, defendant Hudson, the principal of the Attendance Center at which plaintiffs taught, did not recommend plaintiffs for renewed teaching contracts for the 1973--74 school year, a prerequisite to reemployment under Mississippi law. 1 The court found that '(t)he sole reason for refusal (to recommend) was that the plaintiffs, otherwise qualified to continue their teaching duties, stated that they could not comply with the Board's policy.' Shortly before the opening of the 1973--74 school year, plaintiffs brought this action for reinstatement, back pay and monetary damages, claiming that imposition of the Board's policy violated their First Amendment right to freedom of association and Fourteenth Amendment rights to due process and equal protection. The district court construed the policy to apply only to teachers with children enrolled in the segregated Academy and upheld it as a justified part of the Board's effort 'to eliminate racial discrimination and remove its pervasive influence from the county's public schools.' Cook v. Hudson, 365 F.Supp. 855 (N.D.Miss.1973).
I.
By order dated August 9, 1968, the district court instructed the Calhoun County Board of Education to begin the transition from a dual to a unitary school system. In addition to establishing a timetable for desegregating each grade, the court's order set out guidelines to be used by the school board in making faculty employment decisions during the transition period and thereafter. These guidelines prescribed remedial measures to correct the prior practice of faculty segregation. The court further enjoined the Board to take affirmative steps to eliminate racial discrimination from the public schools and to bring about a unitary school system within the county. The timetable called for full desegregation of the school system by the 1970--71 school year; no one has suggested that this deadline was not met.
On a factual basis more fully developed in its opinion cited above, the district court found that 'Calhoun Academy is a racially discriminatory institution formed in the wake of public school desegregation to provide a haven for segregated education' and that 'the dominant, if not sole, reason why each plaintiff enrolled his or her children in Calhoun Academy was to avoid the desegregated public school system.' The court also found that prior to the establishment of Calhoun Academy no private school, either religious or secular, had ever existed in the county, and none except the Academy existed at the time the policy was promulgated.
When the Board decided on the challenged policy in November 1972, eight public school teachers had children enrolled in Calhoun Academy. Prompted by the concern that a proper accommodation to the court's desegregation order required a faculty 'totally committed to a desegregated school system', and encouraged by a Justice Department letter seemingly approving its proposed action, 2 the Board verbally agreed to this policy Prior to the employment of a new teacher, or the reemployment of an existing teacher, the children of any such teacher, if living in Calhoun County, Mississippi, will be required to attend the public schools of Calhoun County or said teacher will not be employed or reemployed.
Board members testified that although more broadly stated, the policy was fashioned with only Calhoun Academy in mind. In evaluating plaintiffs' constitutional claims, the court below limited its consideration to the policy terms 'intended by the board and applied to the plaintiffs', and expressly declined to reach any potential question that might be raised by application of the policy to a teacher whose children attended a racially nondiscriminatory school. 365 F.Supp. at 859--60. The district court's approach of reviewing the policy narrowly as it was intended and applied, rather than broadly as it was adopted, has the pragmatic virtue of facing up to the real issue between the parties and producing a resolution of that issue on its merits now. 3
Although the president of the school board testified that patronage of the Academy by public school teachers had been a source of controversy in the community, the keystone to defendants' justification of the policy (and the district court's approval) came from the testimony of two experts in the field of educational psychology. Both were of the opinion 'that the challenged policy was significantly related to a teacher's effectiveness and job performance (because) students in desegregated classes are likely to perceive rejection, and experience a sense of inferiority from a teacher whose own children attend a nearby racially segregated school, and (such students will) be inclined to perform at a lower educational level'. 365 F.Supp. at 860. Neither expert had evaluated plaintiffs individually. One had been director of a three-year project the aim of which was 'to increase the interaction between the school and the community and the student and the teacher in public schools in Mississippi'. His investigation had included schools in Calhoun County, although not the Calhoun City Attendance Center at which plaintiffs taught. Both experts agreed that the Board policy was 'reasonable', based on psychological principles of 'negative reinforcement' and 'teacher expectation'. One of them explained:
A. Okay. The kind of thing that operates in a classroom is that a major variable in learning is how a teacher relates to a student. There is ample indication from both research, my own and others, and just observation on my part that a teacher who is perceived by students as rejecting the public school system will have a difficult time, for example, reinforcing the learning that would go on in the classroom. It would be a perception on the part of students of a difference from the students, and I think this would be particularly true with the black students.
Q. What would be the relationship of this rejection and perception to academic achievement?
A. The major thing is that a teacher is the major--or a major reinforcer of learning. And so that if there is a discrepancy in the way that a student--or let's say if there is a negative perception on the part of the student of the teacher, this detracts from the teacher's ability to reinforce learning.
Q. Now, by reinforcement, what are you speaking of in terms of this reinforcement?
A. It's an operational principle in psychology that holds that a teacher, by such things as paying attention to students, showing respect, trust, acceptance has the potential for increasing or having a positive effect on learning.
Q. Is this what--
A. That's basically what reinforcement is.
Q. Is this what educational psychologists would refer to as positive or negative social reinforcement?
A. Right.
Q. And what would be the effect of a negative social reinforcement?
A. The negative social reinforcement is shown in situations where the possibility exists for a teacher not having the potential or the possibility as a functional teacher to reinforce what goes on in an appropriate way in the classroom.
Q. Doctor Eicke, would a student perceive a teacher who sent their own children to a private school--a public school student, would this be perceived as a negative social reinforcement?
A. I think it would.
Q. Doctor Eicke, what do psychologists mean when they refer to teacher expectations?
A. Teacher expectation is an area that has been studied in educational psychology dealing with a phenomenon in which what is expected of students is what they tend to do. And my contention would be that if a teacher expected less from students that the students would tend to perform at a lower level; and conversely, if the teacher expected more, the students would tend to perform better. This need not be a conscious kind of thing. In fact, it usually isn't. And I would think that a teacher that rejects the public school system as acceptable for (the teacher's) own children would set lower expectations (for the public school students) that (the teacher) would then come in contact with.
He added that '(a)nything that detracts from a positive perception of (the) teacher may affect learning.' The other expert repeated and further explained similar opinions.
The district court found in this evidence a sufficient 'rational relation' between the challenged policy and the goal of public school desegregation to answer plaintiffs' equal protection objection. However, while apparently conceding that the Board's policy infringed plaintiffs' First Amendment rights, the court noted that those rights 'may not be considered in isolation', that they 'must be applied in the light of the special circumstances of the environment of the particular case', 4 and that 'where the exercise of First Amendment rights impairs the teacher's effectiveness, or conflicts with the performance of her job,...
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