Harkless v. Sweeny Independent School Dist. of Sweeny, Tex.

• Decision Date: 01 July 1977
• Docket Number: No. 75-1533,75-1533
• Citation: 554 F.2d 1353
• Parties: 20 Fair Empl.Prac.Cas. 1298, 14 Empl. Prac. Dec. P 7669 Mildred HARKLESS et al., Plaintiffs-Appellants, v. The SWEENY INDEPENDENT SCHOOL DISTRICT OF SWEENY, TEXAS, and Fred Miller, Superintendent, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1353

554 F.2d 1353

20 Fair Empl.Prac.Cas. 1298, 14 Empl. Prac.

Dec. P 7669

Mildred HARKLESS et al., Plaintiffs-Appellants, v. The SWEENY INDEPENDENT SCHOOL DISTRICT OF SWEENY, TEXAS, and Fred Miller, Superintendent, et al., Defendants-Appellees.

No. 75-1533.

United States Court of Appeals, Fifth Circuit.

July 1, 1977.

Rehearing Denied July 26, 1977.

Weldon S. Berry, Houston, Tex., Sandford D. Bishop, Jr., Columbus Ga., Jack

Greenberg, James C. Gray, Jr., New York City, A. J. Cooper, Jr., Prichard, Ala., for plaintiffs-appellants.

Grant Cook, Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before AINSWORTH and CLARK, Circuit Judges, and HUGHES, District Judge. ^*

HUGHES, District Judge:

Plaintiffs in this action are ten ¹ black school teachers whose 1965-66 teaching contracts with the Sweeny Independent School District (S.I.S.D.) were not renewed for the 1966-67 school year. On May 23, 1966, they and two others who later withdrew from the suit filed an action against the S.I.S.D., its superintendent, and seven members of the school board. The superintendent and school board members were sued in both their official and individual capacities, but later, during the original trial, plaintiffs dropped their claim against these people in their individual capacities. Asserting 42 U.S.C. § 1983 ² and 28 U.S.C. § 1343(3) ³ as the jurisdictional basis, plaintiffs claimed they had been discharged because of their race and sought reinstatement and back pay. A jury returned a verdict for defendants on, among other things, the issue of whether the defendants had not renewed the teaching contracts because of plaintiffs' race. After this verdict, the trial court dismissed plaintiffs' complaint, concluding that the school district and the defendants in their official capacities were not "persons" within the meaning of § 1983. On appeal, this Circuit reversed the district court, holding that it had erred in granting defendants a jury trial and in finding the defendants not to be § 1983 persons. Harkless v. Sweeney Independent School District, 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971).

About two years later, after testimony had been presented to supplement the transcript of the earlier trial, the district court took the case under consideration. A year later, while the case was still under consideration, the Supreme Court decided City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), which held that a municipality is not a person under § 1983 for purposes of equitable relief. The tandem of Kenosha and Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which had held that a municipality was not a § 1983 person where damages are sought, meant that a municipality could not be sued under § 1983. In its wake, Kenosha left questions about jurisdictional matters in this case.

After the Kenosha decision, there was a five month hiatus which ended with the district court requesting briefs on the applicability and reach of Kenosha. In response, in addition to the parties' briefs on Kenosha's impact, plaintiffs filed a Motion for Leave to Amend Second Amended Complaint primarily aimed at avoiding the possible jurisdictional problems presented by Kenosha. Another year elapsed and, on January 10, 1975, the district court issued its Memorandum Opinion and Order, which included a denial of the motion to amend and entered Final Judgment denying all relief sought by plaintiffs. This appeal followed.

Before this court, plaintiffs argue that the district court erred in two basic respects. First, they assert error in the district court's finding that they were not discharged because of their race. Second, they assert error in the district court's holding that it could only grant prospective injunctive relief in the form of reinstatement against the individual defendants in their official capacities, assuming plaintiffs' success on the merits. As subsidiary issues to the second asserted error, plaintiffs argue that their Motion for Leave to Amend Second Amended Complaint should have been granted and that the district court could have granted full relief in the form of reinstatement and back pay plus allowances for a successfully urged cause of action. We reverse on all issues except the district court's denial of that portion of the motion to amend relating to the rejoining of the individual defendants in their individual capacities.

Until the 1965-66 school year, S.I.S.D. was a dual school system with both the students and faculties segregated along racial lines. All black students of whatever grade and all black faculty were assigned to the George Washington Carver School (Carver) which had no white students or teachers. For the 1965-66 school year, the school district instituted a freedom of choice system for the students while continuing to assign all its black teachers to Carver. Then, in 1966-67, the district desegregated its faculty as well as its student body.

The important events in this case occurred in the 1965-66 school year. In that year, Carver had twenty four teachers, all black, and a principal who also was black. At the request of the district superintendent and in preparation for the coming faculty desegregation, a staff requirements study was prepared. It indicated that twelve fewer teaching positions were needed for the next school year.

In February, 1966, the superintendent requested the district's curriculum director to prepare an evaluation of Carver's teachers. No such evaluation was requested for the district's white teachers. The completed evaluation was submitted in anecdotal form and was laden with remarks that were what the trial court termed "not models of diplomatic composition". A stronger appellation might be given, despite the trial court's finding them not to be insulting, but a sampling of the remarks is the best way to give their true flavor. Cleo Grimes was described as having ". . . honest and realistic aspirations for her race." Margaret Gee was said to have "seen much more of the world than most; displays relatively racial and provincial facets." John P. Jones was termed "(a) real up-town, gold-toothed, yellow shod dude." Hilbert Simien was said to be "(r)easonably cultured by our standards . . ." There were numerous other references to race in a similar vein.

Sometime during February or March of 1966, the Carver faculty again was singled out for a separate evaluative process. At the superintendent's behest, the curriculum director and the Carver principal numerically ranked the Carver teachers against one another according to supposed competence. The superintendent also performed this ranking and then compiled the three ratings on a "Teacher Evaluation Worksheet". The twenty three permanent teachers are listed and next to their names are three columns of numbers which are the individual rankings by the superintendent, the curriculum director, and Carver's principal. The sums of these three rankings for each teacher are in another column. Next to this column but adjacent only to the eight teachers with the lowest cumulative rankings are the numbers 1 through 7. (Two teachers tied in their cumulative rankings and, thus, both have a 7 by their names.)

A slight detour is necessary to highlight the significance of the numbers 1 through 7 appearing on the worksheet. Only seven black teachers received teaching contracts for the 1966-67 school year. Five were those teachers with the numbers 1 through 5 next to their names. The other two were the Carver principal, who was demoted to teacher, and his wife. The school district refused to renew the contracts for seventeen (about 70%) of the twenty four Carver teachers. Every white teacher who wanted to continue teaching had his or her contract renewed. Additionally, seventeen new teachers were hired for the 1966-67 school year. All were white.

Returning to the main road, on March 1, 1966, the superintendent sent a memorandum to the principals of the S.I.S.D. schools requesting them to submit by March 7, 1966, two evaluations of the teachers in their respective schools. One evaluation was by means of a Steck Form. ⁴ A Steck Form is a document on which an evaluator rates a teacher according to thirty eight characteristics which cover the areas of personal qualities, teaching abilities, routine and physical conditions, discipline, cooperation, professional growth, and social efficiency. Ratings for each characteristic are to be on a five point scale ranging from "excellent" to "unsatisfactory". The other evaluation was to be made by means of a notation on the Steck Form. The notation (or overall rating) was to be a number from 2 through 10. The higher the number, the better the teacher. No correlation between the Steck Form evaluation and the overall rating was required or discussed. Though the superintendent and curriculum director did not prepare Steck Forms, they did make overall ratings of the district's teachers. Under this two step process, each of the plaintiffs ranked lowest among his or her grade/subject matter group. ⁵

The process's culmination was reached on March 8 when, one day after the due date for the Steck Forms and overall ratings, the S.I.S.D. School Board accepted the superintendent's recommendations to rehire 100% of the white teachers and only 30% of the black teachers.

The employment decisions purportedly were based on the results of the Steck Form evaluations and overall ratings, themselves contested, in which teacher comparisons were made on a district wide basis. The district court found the foregoing as fact. With the benefit of guidance from a recent Supreme Court decision, we reject such a finding as clearly erroneous, to the extent that it is a true finding of fact at all. ⁶

The Supreme Court decision is Village of Arlington Heights v. Metropolitan...