Cousin v. Board of Trustees of Houston Mun. Separate School Dist.

• Decision Date: 16 June 1981
• Docket Number: No. 80-3126,80-3126
• Citation: 648 F.2d 293
• Parties: 28 Fair Empl.Prac.Cas. 172, 26 Empl. Prac. Dec. P 31,894 Warren G. COUSIN, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF HOUSTON MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 293

648 F.2d 293

28 Fair Empl.Prac.Cas. 172,

26 Empl. Prac. Dec. P 31,894

Warren G. COUSIN, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF HOUSTON MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees.

No. 80-3126

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

June 16, 1981.

Kenneth Mayfield, Tupelo, Miss., for plaintiff-appellant.

Armis Hawkins, Houston, Miss., for defendants-appellees.

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

Before BROWN, POLITZ and TATE, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

I. Background Of Facts

Prior to the 1970-71 school year, a segregated school system operating under the freedom of choice plan existed in Houston, Mississippi. Pursuant to a mutual agreement in the summer of 1969, the predominantly Black Chickasaw County School, grades 1-12, merged with the Houston Municipal Separate School System (HMSSS) and was renamed Westside High School. However, during the 1969-70 school year, the consolidated school district continued to operate segregated schools. A year later in 1970, a complaint seeking injunctive relief and the elimination of the dual school system was filed by twenty-five persons, including Appellant Cousin, the Black principal of Westside High School. As a result of this complaint, HMSSS was ordered to begin desegregation in the 1970-71 school year.

Upon implementation of the desegregation plan, the conversion of Westside High School to Houston Middle School reduced the number of high school principals from two to one. Appellant Cousin was assigned for the 1970-71 school year as assistant principal of the one remaining HMSSS high school.

In a challenge to the District Court's desegregation order, this Court, on appeal, found the order valid and instructed the District Court to determine whether the conversion from a segregated system to a unitary one had in fact been accomplished. ¹ V. O. Taylor et al. v. Houston Municipal Separate School District, et al., 444 F.2d 118 (5th Cir. 1971). The Court received objections to the unitary status from the original plaintiffs, including Cousin, who lodged a personal objection of wrongful demotion from the position of principal to assistant principal. Cousin later withdrew his objection. After a two-day evidentiary hearing, the District Court entered a final order on December 17, 1971, overruling all pending objections and finding that the school system was currently operating as a unitary system of schools. ² Appellant Cousin's present complaint, filed May 25, 1977, alleges that he had been demoted in 1970 at the time of desegregation and although qualified, had been passed over for subsequent principalships several times hence in violation of 42 U.S.C.A. §§ 1981, 1983 and § 2000e et seq. and his rights accruing under Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1971) (Singleton III ) (en banc) rev'd and remanded on other grounds, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 530 (1971).

At the time of his alleged demotion, Cousin was certified as a secondary school principal by the State of Mississippi having completed his B.S. degree in 1955 from Rusk College in Holly Springs, Mississippi and 16 hours of graduate credit in supervision from Tuskagee Institute, Tuskagee, Alabama. In addition, Cousin had 10 years of experience as a high school principal; 4 years experience as an assistant principal and 5 years experience as a classroom teacher. In 1973, Cousin became certified under the Southern Association of Schools and Colleges when he completed his Masters degree and received a AA certificate.

The District Court found that the school district was not racially motivated when it abolished the position of assistant principal in 1975 and failed to assign Cousin to a high school principal's position in either 1975-76 or 1977-78. The Court also found that a six year statute of limitations prohibited Cousin from raising any claims prior to May 1971, and that there were no Singleton III rights with respect to claims after the school system was found to be unitary on December 17, 1971.

In the present appeal, Cousin reiterates his Singleton III claim and challenges the burden of proof standards which were employed by the District Court in reaching the conclusion that race was not a motivating factor in HMSSS's hiring practices. Having determined that Cousin's Singleton III issue is dispositive of the present appeal, however, we do not reach those issues dealing with the burden of proof.

In our review we are bound by the District Court's finding of subsidiary facts which are themselves not clearly erroneous. Causey v. Ford Motor Co., 516 F.2d 416 (5th Cir. 1975); see also Danner v. United States Civil Service Commission, 635 F.2d 427, at 430 (5th Cir. 1981); Ramirez v. Sloss, 615 F.2d 163, 169 (5th Cir. 1980); East v. Romaine Inc., 518 F.2d 332, 339 (5th Cir. 1975). However, we are not bound by the clearly erroneous rule in regard to legal conclusions reached by the District Court, and we can make independent determinations on ultimate issues. U. S. v. Mississippi Valley Generating Co., 364 U.S. 520, 526, 81 S.Ct. 294, 297, 5 L.Ed.2d 268, 275 (1961); Robbins v. White-Wilson Medical Clinic, Inc., 642 F.2d 153 (5th Cir. 1981). ³

II. The Singleton Claim

Recognizing that the transition from a dual to a unitary system often results in a reduction of personnel, this Court in Singleton III designated a two-fold protection for those who are affected by staff reduction and rearrangement due to integration. First, the school district's dismissals and demotions must be accomplished based on objective non-racial written criteria developed by the school board and made available for public inspection. Cousin alleges that no such standards were followed when he was demoted to the assistant principalship. Second, "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." Singleton III, 419 F.2d at 1218. Cousin relies principally on this second aspect of Singleton III, contending that he was not given the opportunity before other applicants to accept or refuse the principal positions which became available in the district beginning in 1972.

The District Court addressed Cousin's Singleton III claim twice at the outset of the trial and in its memorandum opinion. The Court initially stated:

There is no Singleton problem in this case. Singleton does not apply after the school district becomes unitary. That has been held several times by the Fifth Circuit. There is no Singleton question in this law suit, by virtue of the fact that everything that is subject of proof in this case by the plaintiff relates to matters happening after the unitary system of schools has been adjudicated.

Under the Fifth Circuit's holding in several cases, Singleton applies only in the process of desegregation, whether it be in the movement of faculty members in order to comply with the desegregation order or to effect the unitary system. Once the unitary system is effected, Singleton does not apply.

Later, in connection with HMSSS's achievement of unitary status, the Court expressed estoppel and statute of limitation theories as additional reasons for precluding Singleton III rights.

Our review of Singleton III, and the cases construing it, leads us to conclude that the District Court only dealt with the first dimension of Singleton III, and, thus erred in not applying the second aspect of Singleton III to the facts of the present case.

In order to prevail under either prong of Singleton III, there must be a desegregation-related reduction in personnel resulting in a demotion or dismissal. Hereford v. Huntsville Board of Education, 574 F.2d 268 (5th Cir. 1978); Hardy v. Porter 546 F.2d 1165 (5th Cir. 1977); Ayers v. Western Lines Consolidated School District, 555 F.2d 1309 (5th Cir. 1977); Lee v. Pickens County School System, 563 F.2d 143 (5th Cir. 1977); Lee v. Russell County Board of Education, 563 F.2d 1159 (5th Cir. 1977); Pickens v. Okolona Municipal Separate School District, 527 F.2d 358 (5th Cir. 1976). Once these factors have been demonstrated to exist before full compliance with desegregation has been achieved, Singleton III becomes operative.

Looking at these factors in light of the present record, we find a 1970-71 desegregation order, a reduction in high school principal positions from two to one, and the reassignment of Appellant Cousin from a high school principal's position to an assistant principalship. This constituted a demotion under Singleton III standards which includes any reassignment: (i) under which the staff member receives less pay or has less responsibility than under the assignment he held previously, (ii) which requires a lesser degree of skill than did the assignment he held previously, or (iii) under which the staff member is asked to keep a subject or grade other than one for which he is certified or for which he has had substantial experience within a reasonable current period. In general and depending upon the subject matter involved, five years is such a reasonable period. Singleton III, 419 F.2d at 1218.

Whatever might be the correctness of the Trial Court's initial statement of the law concerning Singleton III's inapplicability, as applied to the first part of Singleton III, once a district has achieved unitary status, we held in Ayers that the District Court had not erred in finding a Singleton III violation since the school district there (i) was still in the process of becoming unitary and (ii) had not applied "objective and reasonable non-discriminating standards" in effecting reductions. Ayers, 555 F.2d at 1321....