Cross v. Board of Ed. of Dollarway, Ark. Sch. Dist.

• Decision Date: 17 June 1975
• Docket Number: No. PB-74-C-205.,PB-74-C-205.
• Citation: 395 F. Supp. 531
• Parties: Othello CROSS, Plaintiff, v. The BOARD OF EDUCATION OF the DOLLARWAY, ARKANSAS SCHOOL DISTRICT, et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

395 F. Supp. 531

Othello CROSS, Plaintiff, v. The BOARD OF EDUCATION OF the DOLLARWAY, ARKANSAS SCHOOL DISTRICT, et al., Defendants.

No. PB-74-C-205.

United States District Court, E. D. Arkansas, Pine Bluff Division.

June 17, 1975.

John W. Walker, Little Rock, Ark., for plaintiff.

Robert V. Light, Little Rock, Ark., for defendants.

MEMORANDUM OPINION

HENLEY, Circuit Judge Sitting By Designation.

This civil rights action is the latest in a series of cases extending back to 1959 wherein efforts have been made to desegregate the students and faculty of the Dollarway School District.¹ The plaintiff, a black man named Othello Cross, claims to have been victimized by racial discrimination practiced by the District in the hiring, compensation, and promotion of its employees in violation of 42 U.S.C. §§ 1981, 1983, and 2000e-2, and he asks this court to grant him the job of head high school football coach and athletic director at the Dollarway School and for back pay for the 1964 through 1974 school years. After consideration of the evidence presented and the parties' briefs, the court finds that (1) the defendants refused to promote the plaintiff to the position of head high school football coach and athletic director in 1969 and 1973 solely because of his race; (2) plaintiff is entitled to back pay for the 1969 through 1974 school years; and (3) the defendants must either promote the plaintiff to the position of head football coach and athletic director or compensate plaintiff at a salary equal to that which he would receive if he were so promoted.

In 1968 this court ordered unitization of the dual school facilities which had been maintained staunchly by the District since the Brown v. Board of Education decisions in 1954 and 1955. Prior to unitization in 1969, the Dollarway District operated three segregated facilities—the Townsend Park School, the Dollarway School, and the Pinecrest Elementary School. The all-black Townsend Park School was the primary institution for the District's approximately 1,700 black elementary and high school students while the Dollarway School, which was less than 5% black, enrolled over 1,200 elementary and secondary school students. The Pinecrest Elementary School's 300 students were all white. After unitization, Dollarway School became the only high school in the District and Townsend Park was converted to a junior high facility.

Since unitization, the Board has maintained a policy of replacing white faculty members with whites and blacks with blacks. Plaintiff's exhibit #3, which shows the racial composition of the "top" salaried positions in the Dollarway system from 1968 to 1974, verifies this proposition. Before unitization, the thirty-two top positions were occupied by twenty whites and twelve blacks; after unitization in 1969 twelve of these positions were eliminated, and of the twenty remaining positions fifteen were occupied by whites and five by blacks. Since 1970 this number has remained at fourteen whites and six blacks except for 1971 when the number was fourteen and five, respectively. With few exceptions, the exhibit demonstrates that blacks were replaced with blacks and whites with whites, and, of course, this procedure guarantees that whites will occupy a majority of the better positions. All members of the Dollarway Board of Education are white,² and the District Superintendent, Mr. James W. Matthews, maintains an all-white staff in his office. Mr. Matthews has hired fourteen new teachers since 1969, and all but one have been white.

Unitization entailed elimination of some of the overlapping faculty positions created by the District's prior maintenance of dual facilities—e. g., head high school football coach—and as a result, Mr. Cross was demoted from the position of head high school football coach at Townsend Park to assistant high school football coach at the integrated Dollarway School. However, Mr. Cross suffered no cut in salary. Mr. Eugene Fletcher, a white man and head football and track coach and athletic director at the old segregated Dollarway School, resigned these positions with unitization in 1969 and became Junior High School Principal. His replacement, a white man named Chester Key, resigned in 1973, and on direction of the Board of Education the District Superintendent refused to consider Mr. Cross' application for the vacancy and instead hired the head football coach at the Lonoke, Arkansas High School — a white man named Carl Owens — to be the new head football coach and athletic director. Shortly thereafter, Mr. Cross instituted legal proceedings in this court.

The gravamen of the plaintiff's complaint is that the District deviated from its long standing policy of promoting faculty from within the Dollarway system and instead hired a replacement in 1973 who was objectively less qualified than plaintiff to be head football coach and athletic director. While admitting that Mr. Cross is qualified "academically" to be head football coach and athletic director, the District contends that "dissension among the staff" forced the Board to look elsewhere in 1973 for a replacement for Mr. Key and that the replacement, Mr. Owens, is more qualified than Mr. Cross because he is more "enthusiastic" and "concerned." The plaintiff also contends that the District failed to make him head football coach and athletic director after unitization in 1969 because of his race and instead hired the less qualified assistant white coach. Finally, Mr. Cross alleges that the school board has steadfastly maintained from 1964 through 1974 a discriminatory pay scale in which blacks receive less pay for equal work. Mr. Cross asks for back pay for this ten year period but asserts no claims on behalf of any class.

At the hearing, the defendants did not attempt to explain their demotion of the plaintiff in 1969 and the simultaneous promotion of the white assistant coach. However, they vigorously defended their 1973 employment decision not to promote the plaintiff. Mr. Mathews testified that upon receiving notice of Mr. Key's resignation in June, 1973 the Board instructed Mr. Matthews to deviate from the District's normal policy of "promoting from within" and to "go outside the system" to find a new head football coach and athletic director despite Mr. Key's recommendation that Mr. Cross be promoted. Although the superintendent normally does not take employment decisions to the Board, Mr. Matthews did so in this instance because the job was so important to the community and because he feared that appointment of a black coach would provoke adverse community reaction and scare off white athletes. Mr. Cross and other members of the Dollarway coaching staff never received notice of the Board's decision, and Mr. Cross' June 25, 1973 application for the job was never acted upon officially by either the Board or by Mr. Matthews.

The Board has never established any objective written criteria to be followed in employment decisions, and Mr. Matthews testified that in judging an applicant's qualifications to be head football coach he considered educational background, experience, enthusiasm, "ability to get along with people," and knowledge of the game of football. According to Mr. Matthews and a Mr. Marvin McDaniel, a Board member for thirteen years, "friction within the coaching staff" caused the Board in 1973 to decide to go outside the system to find a new coach and athletic director. Mr. McDaniel, however, could not provide any specific examples of this dissension although he did testify that Mr. Cross rarely attended Booster Club meetings and generally seemed unenthusiastic about extracurricular activities which he was not under contract to attend. Mr. Matthews stated that Cross frequently absented himself from his junior high school science class, and subsequently he was transferred to a senior high school teaching assignment where his class attendance improved. Despite these problems, the Board promoted Mr. Cross to...