Kelly v. West Baton Rouge Parish School Bd.

• Decision Date: 07 August 1975
• Docket Number: No. 74-1240,74-1240
• Parties: 16 Fair Empl.Prac.Cas. 1632 Natherlean G. KELLY et al., Plaintiffs-Appellants, v. WEST BATON ROUGE PARISH SCHOOL BOARD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 194

517 F.2d 194

16 Fair Empl.Prac.Cas. 1632

Natherlean G. KELLY et al., Plaintiffs-Appellants, v. WEST BATON ROUGE PARISH SCHOOL BOARD et al., Defendants-Appellees.

No. 74-1240.

United States Court of Appeals, Fifth Circuit.

Aug. 7, 1975.

Murphy W. Bell, Baton Rouge, La., for plaintiffs-appellants.

Charles H. Dameron, 1st Asst. Dist. Atty., Port Allen, La., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before RIVES, WISDOM and COLEMAN, Circuit Judges.

RIVES, Circuit Judge:

The two plaintiffs ¹ were black teachers in the West Baton Rouge School District. Each of them had been a probationary, nontenured teacher ² for as much as two and one-half years or more at the time she received a letter from the defendant Lutz as Superintendent of the Parish Schools, dated August 8, 1969, the body of which is quoted in the margin. ³ Each of the plaintiffs was interviewed pursuant to a letter from Mr. Lutz, dated June 7, 1971, quoted in the margin, ⁴ but neither was reappointed. At the time of entry of the district court's judgment, December 4, 1973, neither of them had been reappointed to a teaching position in the Parish Schools, nor has either been so reappointed to date.

The plaintiffs' claimed in substance:

(1) That they were victims of racial discrimination, meaning racial discrimination according to the standards applied prior to this Court's decisions in United States v. Jefferson County Board of Education, 5 Cir. 1967, 380 F.2d 385, 394, and in Singleton v. Jackson Municipal Separate School District, 5 Cir. 1970, 419 F.2d 1211, 1220;

(2) that they were laid off without notice or hearing and thus denied due process;

(3) that at the time they were laid off, the defendants had not adopted or made available for public inspection any written standards or criteria for the selection of teachers to be laid off within the requirements of Singleton, supra ;

(4) that the failure to reappoint them for the 1971-72 school year or for any subsequent year violated their right to recall or preference before employment of new teachers of a different race or color, established in Jefferson and Singleton, supra.

The district court expressed in its opinion the view that the case against the School Board must be dismissed for lack of jurisdiction, but nonetheless ruled on the plaintiffs' contentions on their merits ⁵ and ordered the entry of judgment in favor of the defendants. This appeal is from a judgment "in favor of defendants, West Baton Rouge Parish School Board, L. C. Lutz, Superintendent, West Baton Rouge Parish Schools, and against plaintiffs remaining in the matter at the time of trial, Natherlean G. Kelly and Patsy L. Harrington, dismissing plaintiffs' suit at their costs." (R. 43)

We do not agree that the case against the School Board must be dismissed for lack of jurisdiction. On the merits, we affirm the rulings of the district court as to grounds (1), (2) and (3), listed, supra, and reverse as to ground (4).

The complaint sought injunctive relief and claimed damages to each plaintiff in the amount of $10,000 plus loss of wages. Neither of the defendants denied that the matter in controversy exceeded $10,000 exclusive of interest and costs, or raised any other question as to the jurisdiction of the district court. The pretrial order approved by the parties and entered by the court provided that, "Basis for jurisdiction is set forth in the complaint" (App. 11). We do not find it necessary to decide whether City of Kenosha v. Bruno, 1973, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109, applies to a school board for several reasons. (a) The action arose under 42 U.S.C. § 1981, if not under § 1983, ⁶ and jurisdiction was properly grounded upon 28 U.S.C. § 1343. (b) Federal jurisdiction under 28 U.S.C. § 1331 may also be invoked, though that section is not relied upon in the complaint. Paynes v. Lee, 5 Cir. 1967, 377 F.2d 61, 63; Wright & Miller, Federal Practice & Procedure Civil, § 1206 n. 66. (c) In appropriate circumstances, this Court may exercise its discretion not to decide the "Kenosha " question. Mitchell v. West Feliciana Parish School Board, 5 Cir. 1975, 507 F.2d 662, 666, 667. Such circumstances exist here, because in this case "Kenosha " does not go to the jurisdiction of the court but does suggest questions of remedy, parties and procedure which have not been reached. One such question concerning the Eleventh Amendment to the Constitution of the United States is discussed in Scheuer v. Rhodes, 1974, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90. Another such question is whether executive immunity ⁷ protects the members of the school board and the school superintendent from liability for damages and lost wages. We express no opinion on those questions. Though our reasoning is different, we follow the same course as did the district court, and proceed to a decision of the merits.

(1) We agree that there was no sufficient evidence that either the members of the School Board or the Superintendent were motivated by racial discrimination (measured by standards prior to Jefferson and Singleton, supra ) in terminating the plaintiffs' employment or in failing to rehire them. Plaintiffs were among several nontenured teachers laid off in August, 1969. The district court found "At that time fourteen Negro teachers were involuntarily terminated along with twenty-seven white teachers, eight of whom were involuntarily laid off and nineteen of whom voluntarily resigned" (R. 39). The Board anticipated that pupil enrollment for the 1969-70 school year would decline because of the dissatisfaction of white parents with the court-ordered integration which followed the direction of the Supreme Court that,

"Under explicit holdings of this Court the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools. Griffin v. School Board, 377 U.S. 218, 234, 84 S.Ct. 1226, 1235, 12 L.Ed.2d 256 (1964); Green v. County School Board of New Kent County, 391 U.S. 430, 438-439, 442, 88 S.Ct. 1689, 1694-1695, 1696, 20 L.Ed.2d 716 (1968)."

Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19.

At the close of the 1968-69 school year, the Parish schools had a pupil enrollment of 2460 Blacks and 2500 Whites, or 49.6% Blacks and 50.4% Whites. (Supp.R., 46.) Mr. Lutz testified "The succeeding years, starting in '68 I mean '69-'70, of course, our white enrollment dropped considerably, down to practically 150 whites, I believe, at the beginning of that year, and around 2300 blacks. I have those figures somewhere here. Percentagewise at the beginning of the year, the first week or so of the school year, it was ninety-four per cent black and six per cent white. The whites pulled out. Along about the end of the year, the whites built back up from approximately one hundred fifty to five hundred four. Which we closed out roughly with about eighty-two per cent or eighty-two point five per cent black, and seventeen point five per cent white.

"Of course, as the years and I have each year, the whites have progressively increased. I can give you round figures now of around fifteen hundred whites and twenty-two or twenty-two fifty blacks." (Supp.R., 47.)

The number of teachers at the beginning of the 1968-69 school year had been reduced from 250--of whom 128 were Black and 122 White, to 208--of whom 107 were Black and 101 were White. More white teachers than black teachers were hired during the years immediately following desegregation. That may be partially explained by the fact that no black teachers resigned and a considerable number of the white teachers did resign. From one of the exhibits we have extracted a table of the numbers of teachers in the Parish system at various times from 1969 to 1974, which is shown in the margin. ⁸ Absent the per se requirements of Jefferson and Singleton, supra, those figures are not so significant as to cause us to set aside the district court's holding that neither the Board nor the Superintendent was motivated by racial discrimination. It is clear that the district court had no reference to either the Jefferson or the Singleton decision in its ruling of no racial discrimination.

(2) As to the second ground, the plaintiffs did not have tenure, and the Board's decision not to rehire them was not influenced by racial discrimination nor was it part of a plan to integrate the school system.

This Court has held that, under circumstances not constituting a deprivation of "liberty," there is no constitutional right to a hearing before discharge of nontenured teachers who have no property interest in continued employment. See Robinson v. Jefferson County Board of Education, 5 Cir. 1973, 485 F.2d 1381. The Louisiana statute ⁹ involved here and the Alabama statute ¹⁰ construed in Robinson, supra, are significantly similar. LSA-R.S. 17:442 provides that a probationary (i. e., nontenured) teacher may be dismissed for "valid reasons." The reason in this case was a reduction in teaching positions because of an enrollment decline. The Alabama statute allowed the school board to discharge nontenured teachers for "sufficient cause." One such cause mentioned in the contract in Robinson was "decrease of the number of teaching positions." 485 F.2d at 1382 n. 1. The Alabama statute does not provide for a property interest in nontenured school teachers, and the Louisiana statute is to like effect. Robinson, supra, is also instructive as to the plaintiffs' claim of some deprivation of liberty. The discharge there was for use of profanity in class, inefficiency, incompetency, and inability to relate to students. In the present case, the cause of plaintiffs' not being reemployed was the reduction in teaching positions. The mere fact that nonretention by a school system might make a teacher less attractive to other school systems does not constitute...