Kiper v. LA. STATE BD. OF ELEMENTARY EDUC., Civ. A. No. 81-204-A.

• Citation: 592 F. Supp. 1343
• Decision Date: 01 August 1984
• Docket Number: Civ. A. No. 81-204-A.
• Parties: Maefield KIPER v. LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION, et al.
• Court: U.S. District Court — Middle District of Louisiana

592 F. Supp. 1343

Maefield KIPER v. LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION, et al.

Civ. A. No. 81-204-A.

United States District Court, M.D. Louisiana.

March 12, 1984.

On the Merits August 1, 1984.

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Nelson Taylor, Baton Rouge, La., for plaintiff.

Jesse James Marks, Asst. Atty. Gen., New Orleans, La., for defendants.

JOHN V. PARKER, Chief Judge.

This matter is before the court on defendants' motion to dismiss under rule 12(b)(1) and (6) and/or motion for partial summary judgment. Plaintiff opposes the motion. No oral argument is necessary.

Plaintiff, Maefield Kiper, is a black citizen of the United States. Presently he is Assistant Superintendent of Administration for the Louisiana School for the Visually Impaired. The defendants are the Louisiana State Board of Elementary and Secondary Education (BESE) and its members.

The following facts are alleged in the pleadings: In 1978 the Louisiana Legislature desegregated the Louisiana schools for the blind by merging the Southern University School for the Blind, operated as a predominantly white institution. 1978 La. Acts, No. 683, § 4. The statute required BESE to devise a plan which would be acceptable to the federal Department of Health, Education, and Welfare. The statute also required BESE to establish an "advisory committee" to assist the Board. The committee was to be composed of five faculty members from each school. Kiper was a member of the Ad Hoc Committee; he claims that the committee met only briefly on two occasions and that the committee was a sham. A merger plan was approved by the committee.

The plan is entitled "A Plan for the Unitary Operation of the Louisiana School for the Visually Impaired." Under the plan the Louisiana School for the Visually Impaired was established as the "sole successor" to the Louisiana State School for the Blind at Baton Rouge and the Louisiana State School for the Blind at Southern University. Mr. Toby Orillion, a white male, was appointed superintendent of the new school. Orillion had been superintendent of the predominantly white institution. The plan provided that "future vacancies in any administrative position would be appropriately administered according to all state and federal laws." An affidavit signed by James V. Soileau, Executive Director of the Board of Elementary and Secondary Education, states that the plan "contains a statement that Mr. Orillion will be the initial superintendent of the merged blind school but that his retirement was anticipated soon and that applicants of both races are to be considered for the superintendent's position upon Mr. Orillion's retirement." However, the copy of the plan filed next to Soileau's affidavit does not contain such a statement.

Additionally, the affidavit of Soileau says the plan was approved by HEW. The record contains no additional evidence of approval by HEW or the extent of such approval.

Prior to the merger, plaintiff had been employed by the Southern University School for the Blind for nineteen years and had been its chief (de facto) administrator (principal) for thirteen years. As president of the Southern University system, Jesse Stone was the "superintendent" of the Southern University School for the Blind. Both Kiper and Orillion applied for the position of superintendent of the new desegregated school. Orillion was appointed on September 8, 1978, and Kiper was appointed as one of Orillion's assistants.

On or about March 13, 1980, Orillion went on leave. Richard Day, a white male, was appointed Acting Superintendent. Day had not been previously employed at the school. On June 30, 1980, Orillion retired. Day was appointed permanent superintendent on August 28, 1980. Plaintiff claims he applied for this position. In defendants' memorandum of law, they claim plaintiff did not interview with the special search committee that was established to recommend a replacement for Orillion.

Plaintiff filed this action on March 13, 1981, alleging that he is qualified for the position of superintendent but that he was denied the position solely because of his race. Plaintiff's complaint claims a violation of the following laws: thirteenth and fourteenth amendments; 42 U.S.C. §§ 1981 & 1983; and Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1703(d). Plaintiff seeks injunctive and declaratory relief, back pay, compensatory and punitive damages, and attorney fees. In an amendment to the complaint, which was filed on June 14, 1982, plaintiff added a claim for violation of title VII, 42 U.S.C. §§ 2000e et seq. Plaintiff claimed that all prerequisites for title VII jurisdiction had been met. On February 21, 1984, plaintiff filed right to sue letters in the record. On April 6, 1983, the EEOC issued a right to sue letter in connection with plaintiff's complaint of racial discrimination concerning the March 1980 and August 1980 hirings of Day. In another amendment to the complaint, filed on February 1, 1983, plaintiff claims racial discrimination in providing housing benefits in violation of title VII. Plaintiff alleges that in retaliation for plaintiff filing a previous charge with the EEOC, the defendants violated an agreement in housing entered into under the conciliation process before the EEOC. Exhibits filed in the record indicate that the housing benefits stopped on September 9, 1980. Plaintiff seeks recovery for the value of the housing benefits of which he has been denied. On October 28, 1982, the EEOC issued a right to sue letter in connection with plaintiff's housing complaint.

Numerous contentions are made by the defendants in the motion. Generally, the defendants claim the court lacks jurisdiction over the subject matter of plaintiff's claims. Defendants also contend the plaintiff's complaint fails to state a claim against the defendants upon which relief can be granted, plaintiff's claims have prescribed, and defendants are immune from suit under the eleventh amendment. Finally, defendants claim plaintiff's title VII claims should be dismissed if plaintiff can not produce a right to sue letter. Because plaintiff has filed the right to sue letters, the title VII claim is no longer subject to dismissal, were it even, for that reason. See Neal v. IAM Local Lodge 2386, 722 F.2d 247 (5th Cir.1984).

The Law: (1) EEOA — The Equal Educational Opportunities Act (EEOA), 20 U.S.C. § 1703(d) provides:

No State shall deny equal educational opportunity to an individual on account of his or her race, color ... by ... (d) discrimination by an educational agency on the basis of race, color ... in the employment, employment conditions, or assignment to schools of its faculty or staff ....

The EEOA allows an individual who has been denied an equal educational opportunity to institute a civil action for appropriate relief. 20 U.S.C. § 1706. One of the stated purposes of the Act is to give all children enrolled in public schools equal educational opportunities without regard to race or color. 20 U.S.C. § 1701. The EEOC does not provide a cause of action to faculty members, such as plaintiff, who claim racial discrimination in employment practices. See United States v. School District of Ferndale, 577 F.2d 1339, 1344 n. 6 (6th Cir.1978), aff'g 400 F.Supp. 1122, 1128-29 & n. 11 (E.D.Mich.1975); see also Castaneda v. Pickard, 648 F.2d 989, 999 (5th Cir.1981). Accordingly, plaintiff's claims for a violation of the EEOA are hereby DISMISSED under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

(2) Singleton — In this action, plaintiff claims he was denied his Singleton rights. If Singleton applies, plaintiff is not required to prove racial discrimination as to the March 13, 1980 and August 28, 1980 hirings of Day. Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211, 1218 (5th Cir.1969), cert. denied, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 530 (1970) involved several consolidated school desegregation cases where faculties, staff, and student bodies had been merged in an effort to desegregate the school system. The Fifth Circuit issued the following order: (1) If, as a result of the merger of faculty and staff, a dismissal or demotion would be necessary, "no staff vacancy could be filled through recruitment of a person of a race, color, or national origin difference 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." 419 F.2d at 1218. (2) Additionally, if a reduction in the staff is to take place, the selection of the staff member who is to be dismissed or demoted must be accomplished pursuant to written, nonracial, and objective criteria.

These requirements have been incorporated into virtually every desegregation order issued by district courts in the Fifth Circuit since that decision. Singleton rights were discussed in Hardy v. Porter, 546 F.2d 1165, 1168 (5th Cir.1977):

Appellant contends that it is both unjust and unconstitutional to eliminate his Singleton entitlements simply because he voluntarily left the school system, and that those rights can be lost only in accordance with the exacting standards of constitutional waiver. His arguments rest on a misapprehension of the nature of the Singleton provisions relating to displacements caused by integration. Singleton entitlements are not constitutional rights. Both the requirement that displacements be affected only in accordance with written objective criteria and the requirement that displaced personnel be given a right of first refusal of subsequent vacancies are standards of conduct imposed upon school boards under court order. They are aspects of equitable remedies, designed by this court under its general equitable power to fashion relief for constitutional violations (in this case, maintenance of a segregated, dual school system) in

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