Lee v. Macon County Board of Education, 71-2963.

• Citation: 453 F.2d 1104
• Decision Date: 28 December 1971
• Docket Number: No. 71-2963.,71-2963.
• Parties: Anthony T. LEE et al., Plaintiffs, United States of America, Plaintiff-Intervenor and Amicus Curiae, National Education Association, Inc., Plaintiff-Intervenor-Appellant, v. MACON COUNTY BOARD OF EDUCATION et al., Defendants, (Muscle Shoals School System), Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

453 F.2d 1104 (1971)

Anthony T. LEE et al., Plaintiffs, United States of America, Plaintiff-Intervenor and Amicus Curiae, National Education Association, Inc., Plaintiff-Intervenor-Appellant, v. MACON COUNTY BOARD OF EDUCATION et al., Defendants, (Muscle Shoals School System), Defendant-Appellee.

No. 71-2963.

United States Court of Appeals, Fifth Circuit.

December 28, 1971.

COPYRIGHT MATERIAL OMITTED

Solomon S. Seay, Jr., Montgomery, Ala., Wayman G. Sherrer, U. S. Atty., A. Lattimore Gaston, Asst. U. S. Atty., David L. Norman, Asst. Atty. Gen., Brian K. Landsberg, Thomas M. Keeling, Theodore J. Garrish, Perry T. Christison, Attys., Dept. of Justice, Washington, D. C., for appellant.

H. Jack Huddleston, Sheffield, Ala., for defendant-appellee.

Before GEWIN, GOLDBERG, and DYER, Circuit Judges.

GOLDBERG, Circuit Judge:

This is a case of faculty fallout in the wake of desegregating the school system of Muscle Shoals, Alabama. In such situations human aspirations are sometimes thwarted by tides of history. Though we may not levee the tides completely, we can log our journey leaving as few professional heartaches as possible.

Charles Carter was removed in 1967 as principal of an all-black school pursuant to a court desegregation order that required the closing of his school. Lee v. Macon County Board of Education, M.D.Ala.1967. The white principals were retained or replaced with other white principals. From 1967 to 1971 principalships in three of Muscle Shoals' four schools became vacant. Charles Carter was not contacted regarding any of the vacancies, and each was filled with a white man or woman. In May, 1971, another principalship vacancy arose in the Avalon Middle School. Again, Carter was not appointed, the school board choosing instead a white assistant principal from the high school. Alleging that he was denied appointment because of his race in violation of the Constitution and of this court's directives, Carter appeals from the district court's denial of his motion for an order directing the Muscle Shoals school board to appoint him to a position tantamount to the one he had occupied prior to his demotion, specifically to the principalship of Avalon, and to restore to him any back pay and retirement benefits of which he had been unlawfully deprived because of the discriminatory practices of the board. We find that the school board has failed to comply with this court's procedures for the reappointment of principals who are affected by desegregation orders, and we reverse.

After his school was closed in 1967, Carter, who had served as principal since 1959, requested that he be appointed either principal of another school or director of the Muscle Shoals Head Start program. He was not offered either position. Instead he was offered, and accepted, a position as teacher with the Head Start program. Carter testified that he had been told during several conversations with the superintendent in 1967 that this Head Start teaching position was the only position available to him in Muscle Shoals, although he was offered, and refused, two other positions in other areas of the state. That testimony is undisputed in the record, although the superintendent who formed the other end of these 1967 conversations regarding available positions died in 1970. Carter obtained a leave of absence from the school system in order to accept the position at Head Start. He taught in the Head Start program for three years, during which time he often expressed to the school board his continuing desire for another principalship or for a position equal to that which he had occupied prior to the desegregation order. Three principalships arose in 1969 and 1970, but Carter was not hired, or even consulted.¹ Prior to the 1970 school year Carter was informed by the new superintendent that his leave of absence could no longer be continued under Alabama law, and that he would have to return to the Muscle Shoals school system or resign altogether. Even though he had been passed over for principalships three times since 1967, Carter resigned from Head Start and returned to the school system in the hope that he might be placed in a position of responsibility equal to that which he had held as principal for eight years.

Carter holds a Master's Degree in School Administration; at the time of the hearing he lacked six hours of course-work before he was to receive a Master's Degree in Elementary Education. He is certified by the State Board of Education as qualified to serve as principal, assistant superintendent, guidance counsellor, social studies instructor, English instructor, and physical education instructor. He was assigned in 1970 as a physical education instructor. For the 1971 school year he was also assigned to teach a seventh grade social studies class.

Subsequent to Carter's return to the system and to his assignment as physical education instructor, the principalship of the Avalon Middle School became vacant.² Once again Carter requested that he be reinstated to a position tantamount to that which he had occupied in 1967, specifically to the principalship of Avalon. Once again the school board hired a white applicant, allegedly on the basis of "higher" qualifications.³ This time Carter sued, and the National Education Association and the Department of Justice intervened in his behalf. Without going behind the school board's allegations that Carter was "less qualified" for a principalship than the white applicant, the district court denied Carter's petition for reinstatement as principal of Avalon, for back pay, and for lost retirement benefits. At the same time, the district court ordered the school board to file objective, non-racial criteria for the demotion and dismissal of principals and teachers, pursuant to this court's decision in Singleton v. Jackson Municipal Separate School District, 5 Cir.1970, 419 F.2d 1211, cert. denied, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 530, and to offer to Carter "the first vacancy in a principalship or assistant principalship for which he qualifies."⁴ Because we conclude that Singleton has not been followed with regard to the Avalon principalship and because we doubt the district court's interpretation of Singleton, we reverse the denial of Carter's motion for immediate reinstatement, back pay, and retirement benefits.

It is clear that Singleton controls this case, but there is disagreement among the parties regarding Singleton's meaning and thrust. With regard to the administration and faculty correlatives to a school desegregation order, this court concluded in Singleton:

". . . If there is any such dismissal or demotion of principals, teachers, teacher-aides, or other professional staff employed by the school district, no staff vacancy may be filled through recruitment of a person of a race, color, or national origin different 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 emphasis added.

For purposes of Singleton, Carter's "demotion" took place in 1967, when his old school was closed and his principalship terminated.⁵ He was first demoted to Head Start teacher, later to physical education instructor. The school board implies some doubt that Carter was "demoted" within the intent of Singleton, pitching its suggestion on the ground that Carter's salary as Head Start teacher from 1967 to 1970 was higher than that he had drawn in 1967 as principal of the all-black school. From that difference in salary, the board argues that Carter voluntarily left the Muscle Shoals school system in search of higher remuneration, or, in the alternative, that Carter was not "demoted" because he was paid a higher salary as a Head Start teacher. The board's argument that Carter voluntarily left the school system ignores the record. Although we have no specific finding of fact regarding the voluntariness of Carter's assumption of the Head Start position in 1967, it is clear that the district court did not, by denying Carter any immediate relief, thereby hold that Carter had voluntarily removed himself from the Muscle Shoals school system. Had the district judge so concluded, Charles Carter would not be entitled to claim any succor under Singleton; yet the district judge ordered the board to comply with Singleton, as he read the case, in the board's dealings with Carter. Carter testified that from 1967 to 1970 he was not offered any position in the Muscle Shoals system. That testimony is uncontradicted.⁶ It is clear to us from the record that Charles Carter did not voluntarily leave the Muscle Shoals system, and his attendant right to seek a position of responsibility equal to that from which he was demoted, in favor of a higher salary. He made known his aspirations in 1967 to remain in the school system; he turned down offers to go to other school districts; and he continually made his aspirations clear to the school board on several occasions from 1967 to 1971. In final testimony in his real intent, Charles Carter resigned his Head Start position to return to the school system promptly upon being notified that he could no longer take leaves of absence and remain even formally within the system, knowing that the immediate result would be a loss of salary, at least pending his continuing search for appointment to a position commensurate to that which he had held for the eight years prior to 1967.

The school board's alternative argument that Carter was not "demoted" within the intent of Singleton because he received a higher salary as Head Start teacher than as principal of the all-black school neglects the crucial fact that Carter, although on formal leave of absence from the Muscle Shoals school system, was nevertheless relegated outside the normal processes and responsibilities of the system. Head Start, although apparently administered by the...