Lee v. Pickens County School System,, 76-3906
| Decision Date | 01 November 1977 |
| Docket Number | No. 76-3906,76-3906 |
| Citation | 563 F.2d 143 |
| Parties | 22 Fair Empl.Prac.Cas. 158, 15 Empl. Prac. Dec. P 7940 Anthony T. LEE et al., Plaintiffs, United States of America, Plaintiff- Intervenor, Amicus Curiae, National Education Association, Inc., Plaintiff-Intervenor, Appellant, v. PICKENS COUNTY SCHOOL SYSTEM, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Donald V. Watkins, Montgomery, Ala., for plaintiff-intervenor, appellant.
Walter W. Barnett, John C. Hammock, Attys., Dept. of Justice, Washington, D.C., for U.S.A.
Martin Ray, Tuscaloosa, Ala., William W. Carpenter, Superintendent, Pickens County Bd. of Educ., Carrollton, Ala., for defendant-appellee.
Demetrius C. Newton, Birmingham, Ala., Jack Greenberg, NAACP Legal Defense & Educ. Fund, New York City, U. W. Clemon, Birmingham, Ala., Paul F. Hancock, Educ. Sect., Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., Wayman G. Sherrer, U.S. Atty., William J. Baxley, Atty. Gen., Birmingham, Ala., for other interested parties.
Appeal from the United States District Court for the Northern District of Alabama.
Before BROWN, Chief Judge, MORGAN and GEE, Circuit Judges.
In 1970, the Pickens County School System was ordered to convert from a dual system to a unitary system. The attempts to comply with this order have given rise to the issues in this appeal. The appellant, National Education Association, Inc., contends that the order of the district court denying relief to Douglas L. Pope and promulgating criteria to be used in employment decisions were in violation of the standards established by this court in Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970), rev'd in part sub nom. Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970). Because we feel that the findings of fact and conclusions of law contained in the order of the district court are inadequate, the case is remanded for further proceedings.
This court has recognized that the transition from a dual to a unitary system often results in a reduction of personnel. In order to insure that blacks did not feel a disproportionate effect of this reduction, the following standards were established:
2. Staff members who work directly with children, and professional staff who work on the administrative level will be hired, assigned, promoted, paid, demoted, dismissed, and otherwise treated without regard to race, color, or national origin.
3. If there is to be a reduction in the number of principals, teachers, teacher-aides, or other professional staff employed by the school district which will result in a dismissal or demotion of any such staff members, the staff member to be dismissed or demoted must be selected on the basis of objective and reasonable non-discriminatory standards from among all the staff of the school district. In addition if there is any such dismissal or demotion, 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.
Prior to such a reduction, the school board will develop or require the development of nonracial objective criteria to be used in selecting the staff member who is to be dismissed or demoted. These criteria shall be available for public inspection and shall be retained by the school district. The school district also shall record and preserve the evaluation of staff members under the criteria. Such evaluation shall be made available upon request to the dismissed or demoted employee.
'Demotion' as used above includes any re-assignment (1) under which the staff member receives less pay or has less responsibility than under the assignment he held previously, (2) which requires a lesser degree of skill than did the assignment he held previously, or (3) under which the staff member is asked to teach a subject or grade other than one for which he is certified or for which he has had substantial experience within a reasonably current period. In general and depending upon the subject matter involved, five years is such a reasonable period.
Singleton, supra, 419 F.2d at 1218.
The effect of this rule is to give twofold protection to those who are demoted or dismissed because of desegregation related reductions. First, procedural fairness in determining who is to be demoted is guaranteed by the requirement of prior written criteria. United States v. Gadsden County School District, 539 F.2d 1369 (5th Cir. 1976); see also Lee v. Selma City School System, 552 F.2d 1084 (5th Cir. 1977). Second, those who are displaced are given priority consideration for new positions equal to the one which was lost because of desegregation. Lee v. Macon County Board of Education, 456 F.2d 1371 (5th Cir. 1972).
" A plaintiff seeking Singleton protection has the burden of proving the applicability of its terms." Ayers v. Western Line Consolidated School District, 555 F.2d 1309 (5th Cir. 1977). Thus, in order to prevail on remand, plaintiff must show, and the court must find, a reduction 1 in personnel because of desegregation, see Ayers, supra, resulting in the demotion 2 of Mr. Pope. If these elements are established, Mr. Pope would be entitled to the protections discussed above. 3
With respect to the employment criteria established by the trial court, we remand for further findings and reformulation. Where Singleton applies, and the trial court concluded it was applicable here, objective criteria are required and, while on occasion we have approved criteria which, although not obviously objective, are reasonably susceptible of objective assessment, Lee v. Chambers County Board of Education, 533 F.2d 132 (5th Cir. 1976), in no case controlled by Singleton have we approved criteria specifically designated as subjective. 4
REMANDED.
1 Singleton refers to "a reduction in the number of principals, teachers, teacher-aides, or other professional staff . . ." 419 F.2d at 1218. Accordingly, it is clearly appropriate to look solely to the number of principals involved instead of the total number of personnel involved. However, the facts of this case present a somewhat more difficult problem. During school year 1969-70, prior to the 1970 desegregation order, there were nine principalships in the district, and of these, six included high school level grades. Mr. Pope was principal of Hopewell High School. The year immediately following the 1970 order, school year 1970-71, there were still nine principal positions; however, only four of these were at the high school level, a decrease of two from the previous year. Mr. Pope was reassigned to the Carrollton Annex, which included grades 5-9. Although there were changes in personnel during school year 1971-72, the total number of principalships and the number of high school principalships remained constant. The following year, 1972-73, Mr. Pope's school was closed and he was assigned as a classroom teacher in one of the high schools. Thus, in that year, there was a decrease in the total number of principalships from nine to eight. On remand, the trial court must determine at what point a Singleton reduction occurred, since Mr. Pope would not be entitled to any relief under the Singleton requirements prior to that time.
There is some authority supporting the proposition that a Singleton reduction may be found by showing a decrease in a subclass notwithstanding a finding that no change had occurred in the overall class. In a case dealing with high school teachers, this court stated:
We approve the district court's primary focus on the high school numbers. This approach may be used where, as here,...
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