Dunn v. Tyler Independent School District

• Decision Date: 12 June 1972
• Docket Number: No. 71-2395.,71-2395.
• Citation: 460 F.2d 137
• Parties: Curtis DUNN, next friend of Robert Dunn and Roland Dunn, Minors, et al., Plaintiffs-Appellees, v. TYLER INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 137 (1972)

Curtis DUNN, next friend of Robert Dunn and Roland Dunn, Minors, et al., Plaintiffs-Appellees, v. TYLER INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellants.

No. 71-2395.

United States Court of Appeals, Fifth Circuit.

April 11, 1972.

Rehearing and Rehearing Denied June 12, 1972.

Marshall Spivey, Donald Carroll, Wilson, Miller & Spivey, Tyler, Tex., for defendants-appellants.

Ken T. Miller, Jr., Tyler, Tex., for plaintiffs-appellees.

Before RIVES, AINSWORTH and GODBOLD, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 12, 1972.

GODBOLD, Circuit Judge:

On Wednesday, March 24, 1971 from 250 to 300 black students of John Tyler High School, Tyler, Texas, participated in a mass action which began as a before-class assemblage on the school grounds and evolved into a boycott or refusal to attend classes. For simplicity, we refer to it as a walkout. School officials began disciplinary measures against the participants. Black students filed this suit on Tuesday, March 30, and that same day the District Court granted a temporary restraining order against school officials, restraining them from refusing to readmit any black students who participated in the assemblage on the school grounds, from requiring any such student to undergo readmission procedures or to undergo any form of interrogation concerning his role in the assembly, and from in any manner disciplining or discriminating against any student by reason of his participation. Approximately a month later, on April 28, after a full hearing, the court orally announced preliminary findings of fact and conclusions of law and stated that an injunction would be granted. On May 28, an opinion was filed¹ and the injunction entered, forbidding any disciplinary action against participants and ordering that any entries of disciplinary action appearing on their permanent records be expunged.

Now, a year later, it appears that everyone—school officials, black students, and District Court—was wrong to some extent.

1. The facts

It is necessary that the facts be fully set out. The evidence, largely undisputed, reveals the following. In the 1970-71 school year Tyler was a newly integrated high school, approximately 62% white and 38% black. A substantial number of the blacks had been transferred to Tyler from Scott, a black high school. There was some black-white friction during the year. The walkout arose over selection of cheerleaders for the 1971-72 school year. For the 1970-71 year, two of those already chosen at Scott were transferred to Tyler and became members of the Tyler squad, and a third black was appointed on the recommendation of the teacher who had been sponsor of the squad at Scott. Beginning with the 1971-72 squad, all cheerleaders were to be chosen by election. As a transitional device and to insure against only whites being elected by bloc voting, Principal Hanna directed that four whites be chosen from ten white candidates and two blacks from four black candidates, the four-two ratio approximating the ratio of white and black students. The principal planned that for 1972-73 there would be an unrestricted election.

On the morning of Tuesday, March 23, all candidates participated in tryouts before the student body, and the election was held immediately thereafter. During that morning black students began to express dissatisfaction, in part because blacks and whites were separately listed and identified on the ballot, but chiefly because the positions were not equally divided between whites and blacks. School officials responded to their desires for meetings and for discussions at which they could air their complaints. A small group came to see Hanna, another to see Vice-Principal Anderson, a black. The latter group desired a meeting with Hanna, and Anderson arranged it for the early afternoon. At the appointed time approximately 125 to 150 black students assembled in the hall outside the principal's office. Hanna considered this assemblage to be a serious matter, since the arrangement had been for him to meet with a small group. However, after urging and persuasion by school officials and after being informed they would get a decision on what they felt to be a grievance, the students dispersed and went to their classes. Hanna and Anderson then met with a delegation composed generally of the two groups that had been in the separate morning meetings.

At these meetings the students voiced a desire for an equal number of black and white cheerleaders. Hanna explained his reasons for the four-two ratio and told the group that if the designation of "black" and "white" on the ballots offended them it was an error of judgment on his part to so label the groups. In at least one of the meetings he suggested that a new ballot be prepared listing all candidates alphabetically and that a new election be held the next day. The black students found this unacceptable, recognizing, as one of them testified, that it might result in selection of only whites. Hanna left his decision in effect but suggested that if they were dissatisfied they discuss their complaint with Administrative Assistant Lindsley.² They desired to do so, and Lindsley came to the school. Black students were excused from classes and other activities to attend a meeting in the early afternoon, and approximately 400 came. It was Anderson's opinion that had this meeting not been arranged the blacks would have refused to attend classes.

Lindsley met with student representatives and also spoke to the larger group. He agreed that Hanna's decision should remain in effect. Anderson did most of the talking to the assembled students. One or more students spoke, urging an equal number of black and white cheerleaders, and the group supported that view. School officials at the meeting recognized that tensions were rising. Lindsley told the group that he would discuss the matter informally with the School Board, which was meeting that night. The students were told that there would be another meeting of black students the following morning before school in the gymnasium, at which they would be told whether the decision about the ratio had been changed.

Meanwhile other events had been occurring during the school day. A number of fires were set in waste baskets, lockers, locker rooms and rest rooms. A student and a teacher testified to smoke in the building. There was no conflagration, and the fire department was not called. Some books were damaged by fire, a poster was set afire, and papers strewn about in front of lockers. The identity of those who set fires was not established. However, one teacher testified to entering a locker area where black students were congregated, where he put out three fires in lockers, observed another teacher put out a trash can fire, and caught a student setting fire to a poster. He was sufficiently concerned that when still another teacher entered the area he asked him to remain, saying that he feared they might need help. As the black students left the afternoon meeting, an unidentified person in a group of blacks kicked in plastic panels in a hallway.

At the meeting of the School Board on Tuesday night, Hanna informally discussed the cheerleader problem with members. They appeared to support his position, but reminded him that Board policy was for the principal to handle problems such as this at the school level if possible.

The next morning, Wednesday, the preschool meeting was held in the gymnasium as scheduled. It was noisy, and some students were belligerent. Anderson spoke to the students and told them that unofficially the School Board backed Principal Hanna's decision. He urged the students to refrain from setting fires, to attend classes, and to avail themselves of appeal procedures by having their parents present their complaint in formal fashion to the School Board, which would consider it at the next meeting. The temper of the meeting was sufficiently high that Anderson would not allow students to use the microphone. Some students addressed the group without it.

When the meeting was over, approximately 250 to 300 black students peaceably assembled around the flagpole in front of the school. Hanna went out and spoke to individual students, encouraging them to go to classes. Anderson spoke to the group, urging them to go to classes and to follow the procedure for appeal to the School Board. When the bell rang for classes and the students did not disperse, the principal telephoned, presumably to School Board offices, to secure authorization to tell the students to go to classes or to go home. Having obtained that authority, Hanna asked Anderson to convey this word to the students, and then by the intercom system he notified teachers to admit without question any student who appeared within the next 10 minutes. Anderson addressed the group at the flagpole, and told them to go to classes or leave the school grounds. A few came to classes, most dispersed and left the school grounds. Until after the time to go to classes there was no effort by school officials to prevent students from speaking or from using the assembly as a means of expressing their grievances.

The rest of Wednesday the school remained tense. School officials considered that if students who had left returned during the day they would either encourage to leave, or threaten, students who had remained at school. Various distractions occurred.³ Students, black and white, left school for differing reasons, some because of previous parental instructions to come home in the event of racial difficulty at the school. A group of whites left to see what was happening and returned later in the day. Parents, black and white, came to school and got their children. The principal and two vice principals were in and out of their offices, circulating among the students who remained, reassuring them, and attempting to keep school running. They answered many calls from parents...