Lee v. Macon County Board of Education, 71-3170.

• Decision Date: 06 March 1972
• Docket Number: No. 71-3170.,71-3170.
• Citation: 456 F.2d 1371
• 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, Florence City School System, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

456 F.2d 1371 (1972)

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, Florence City School System, Defendant-Appellee.

No. 71-3170.

United States Court of Appeals, Fifth Circuit.

March 6, 1972.

Solomon S. Seay, Jr., Montgomery, Ala., Jack Greenberg, New York City, Jerris Leonard, Asst. U.S. Atty. Gen., Civil Rights Div., Dept. of Justice, Washington, D.C., Wayman G. Sherrer, U.S. Atty., Birmingham, Ala., Gray, Seay & Langford, Montgomery, Ala., for plaintiff-appellant.

E. B. Haltom, Jr., Haltom & Patterson, Florence, Ala., for defendant-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

DYER, Circuit Judge:

The displacement of educational staff in an endless saga of school desegregation in Macon County, Alabama, has again generated a Singleton objection. 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. See Lee v. Macon County Bd. of Educ., 5 Cir.1971, 453 F.2d 1104 1971. Finding that the remedial measures designed in Singleton to insure constitutional respect for those displaced have not been followed, we reverse.

From 1959 to 1969, Mitchell served as head coach in football, basketball, and track at the all black Burrell-Slater School in Florence City, Alabama, directing an athletic program at the senior high level. He was, during that time, the only black head coach in the three senior high schools in the Florence City school system. At the end of the 1968-69 school term Mitchell was removed from his position after a court-ordered desegregation plan required the closing of the Burrell-Slater school. He was reassigned, for the 1969-70 school year, as a physical education teacher and assistant coach in football and basketball at the city's predominantly white Coffee High School with no diminution in compensation.

At the end of the 1969 football season, the head football coach at Coffee High resigned. Mitchell applied for the position but was not accepted. In late January of 1970, a white coach from outside the Florence City school system was hired. Near the end of the 1969-70 basketball season, Coffee's head basketball coach resigned and the high school principal became interim head coach. Mitchell applied for the position for the 1970-71 school year, but was again rejected in favor of a white applicant from outside the school system, who was selected at the commencement of the new school term.

Burrell-Slater was classified as a 2-A school in Alabama athletic rankings, which range from 1-A through 4-A, the classification depending upon the size of the student body. Burrell's enrollment was approximately 300. Coffee High was classified as a 4-A school, the statewide classification for the schools with enrollments over 900. Coffee's attendance was approximately 1000.

Mitchell's record as a coach at Burrell-Slater was not disparaged at trial. In his ten years at the school, his record in basketball was 209 victories, 46 defeats; in football, 55 victories, 19 defeats. At the 2-A level of competition, he was nominated for basketball coach of the year eight of those ten years, and won five times; he was chosen coach of the year in football once. These impressive achievements are complemented by the successful tournament participation of teams under his direction. He had no assistants.

Mitchell's sole contention on appeal is that the failure of the Florence City School Board to award him one of the head coaching positions created by the resignations of the 1969-70 term was a violation of the mandate of our Singleton decree.¹ In Singleton, this Court granted a limited preferential right to promotion, in the event of subsequent vacancies, to members of the pre-desegregation order school staff population who were dismissed, demoted, or displaced in the wake of school desegregation. Singleton, supra, 419 F.2d at 1218. The essence of the Singleton approach as a protection of the Fourteenth Amendment rights of those displaced is this: if a school official, administrator, teacher, principal, or coach is demoted or dismissed as a result of a desegregation order, and if his objective qualifications for his former position do not diminish in an absolute sense after the issuance of the order and his displacement, then he must be given the opportunity to assume any new position equal to the one he lost, prior to the offering of the position to any new applicants. This is the per se presumption of Singleton underlined in our recent decision in Lee v. Macon County Bd. of Educ., 5 Cir.1971, 453 F.2d 1104 1971 in which we reviewed a similar situation of "faculty fallout."

Lee clearly points out that the only way in which a board may pass over a member of the pre-desegregation order population in filling a vacancy in the system with responsibility equivalent to the one held by the displaced staff member is to "take that member out of the protective penumbra of Singleton altogether by establishing that the principal or teacher was not `demoted' or `dismissed,' or that the principal or teacher was not `qualified,' . . ." Lee, supra, 453 F.2d at 1113. The trial court took this course and found that Mitchell had not been "demoted" within the meaning of Singleton because he lost no salary, and because the change of position was from head coach at a small school to assistant coach at a large school, playing in the state's most highly rated athletic conference, with an increase in responsibility upon coaching staff in the new level of competition. He was likewise found to be "unqualified" to assume the head coaching...