Londerholm v. Unified School Dist. No. 500

• Decision Date: 06 July 1967
• Docket Number: No. 44920,44920
• Citation: 199 Kan. 312,430 P.2d 188
• Parties: , 1 Empl. Prac. Dec. P 9802 Robert C. LONDERHOLM, Attorney General of the State of Kansas, Appellant and Cross-Appellee, and Kansas City, Kansas, Branch NAACP, Intervener-Appellant and Cross-Appellee, v. UNIFIED SCHOOL DISTRICT NO. 500 and Ralph E. Evans, Joe H. Vaughn, Robert A. Fothergill, Ralph A. Fulton, John O. Yulich and Mrs. R. W. Scoville, As Members of Said Board, Appellees and Cross-Appellants, and John E. Hirsch, Randall R. Dunn, Mary Wolfe, Phoebe May and Gerald W. Hall, Individually and on Behalf of the Kansas City, Kansas, Teachers Association, Interveners- Appellees and Cross-Appellants.
• Court: Kansas Supreme Court

Page 188

430 P.2d 188

199 Kan. 312, 1 Empl. Prac. Dec. P 9802

Robert C. LONDERHOLM, Attorney General of the State of Kansas, Appellant and Cross-Appellee and Kansas City, Kansas, Branch NAACP, Intervener-Appellant and Cross-Appellee, v. UNIFIED SCHOOL DISTRICT NO. 500 and Ralph E. Evans, Joe H Vaughn, Robert A. Fothergill, Ralph A. Fulton, John O Yulich and Mrs. R. W. Scoville, As Members of Said Board Appellees and Cross-Appellants, and John E. Hirsch, Randall R. Dunn, Mary Wolfe, Phoebe May and Gerald W. Hall, Individually and on Behalf of the Kansas City, Kansas, Teachers Association, Interveners- Appellees and Cross-Appellants.

No. 44920.

Supreme Court of Kansas.

July 6, 1967.

Syllabus by the Court

1. In a statutory action under the Kansas act against discrimination (K.S.A. 44-1001 et seq.) brought by the Attorney General charging the Board of Education of the city of Kansas City, Kansas, with unlawful employment practices in violation of K.S.A. 44-1009(a), the record is examined on appeal and it is held: (a) The trial court did not err in finding that the Attorney General failed to sustain the burden of proof cast upon him to show the school board refused to hire or consider for employment qualified negro applicants as teachers in schools attended predominantly by white children; and (b) the trial court erred in construing the Kansas act against discrimination.

2. Where two presumptions arise which are conflicting with each other, and neither is founded on the weightier consideration of policy and logic, both presumptions shall be disregarded.

3. The Kansas act against discrimination (K.S.A. 44-1001 et seq.) bars discrimination only and is not concerned with the integration of the races.

4. If a school board does not discriminate against any individual in refusing to hire, in refusing to employ, in compensation, or in terms, conditions, or privileges of employment, it has satisfied the admonition of the Kansas act against discrimination, and it has no duty or obligation under the act to take any affirmative step to effect integration.

5. Under the Kansas act against discrimination a school board is not compelled to transfer a teacher in the public school system, over his objection, because of his race, to a school other than the one to which he has been regularly assigned in order that the faculty may be better integrated.

Park McGee, Asst. Atty. Gen., argued the cause, and Robert C. Londerholm, Atty. Gen., and Richard H. Seaton, Asst. Att. Gen., were with him on the brief for the appellant and cross-appellee.

Hartzell J. Whyte, Kansas City, argued the cause, and Robert H. Waters, Kansas City, was with him on the brief for the intervener-appellant and cross-appellee.

Willard L. Phillips, Kansas City, argued the cause, and P. B. McAnany and Thomas M. Van Cleave, Jr., Kansas City, were with him on the brief for the appellees and cross-appellants.

Roger D. Stanton, Kansas City, argued the cause, and Lee E. Weeks and Leonard O. Thomas, Kansas City, were with him on the brief for the interveners-appellees and cross-appellants.

SCHROEDER, Justice.

This is a statutory action under the Kansas act against discrimination (K.S.A. 44-1001 et seq.) brought by the Attorney General of Kansas charging that the Board of Education of the city of Kansas City, Kansas, discriminated against negroes in several respects.

The basic question of law presented involves a construction of the Kansas act against discrimination-whether the act requires public school authorities to integrate their teaching staff at the various schools under their jurisdiction.

This action was instituted by the Attorney General (plaintiff-appellant and cross-appellee) by filing a complaint, authorized by K.S.A. 44-1005, against Unified School District No. 500 and individual members of the school board (defendants-appellees and cross-appellants), charging that the the Board of Education of the city of Kansas City, Kansas, has continually and within six months immediately prior to the filing of the complaint on August 26, 1963, engaged in unlawful employment practices in violation of G.S.1961 Supp. (now K.S.A.) 44-1009(a). The unlawful practices were alleged to consist of:

'(A) Refusing to hire or consider for employment qualified negro applicants as teachers in schools attended predominantly by white children.

'(B) Segregating its negro elementary school supervisor from its white elementary school supervisors in furnishing office accommodations to such supervisors, and by limiting its negro supervisor to work in schools attended predominantly by negro children while its white supervisors are assigned to both white and negro schools.

'(C) By giving official sanction to separate city-wide teachers' associations for negro and white elementary teachers and making membership in such segregated associations compulsory for its elementary school teacher employees.'

The answer of the school board specifically denied each of the charges alleged to be unlawful employment practices.

The act created a state commission having power to eliminate discrimination in employment to be known as the antidiscrimination commission, and provided that after the effective date of the act such commission was to be known as the commission on civil rights. At the hearing before this commission the NAACP was permitted to intervene in the action as a complainant (intervener-appellant and cross-appellee).

Before the matter was heard by the commission a fourth issue was injected into the case. At the pretrial conference, counsel for the Attorney General stated, although not in the pleadings, that the most important issue in the controversy was the refusal of the school board to transfer a teacher, over his objection, from one school to another solely for the purpose of integrating or mixing the faculties.

Before the commission heard the case the school board by motion attempted to learn which individuals had been discriminated against by the refusal of the board to hire them or consider them for employment in predominantly white schools; but the commission denied the motion.

The case was heard by the commission on the three issues enumerated in the complaint and the fourth issue injected at the pretrial conference, despite the recommendation of its own investigating officer that there was no probable cause upon the third issue in the complaint.

After hearing the matter the commission found against the school board on all four issues, and concluded that the school board 'has engaged and at the time of the hearing was engaged in unlawful, discriminatory practices in violation of the Kansas Act Against Discrimination.' It thereupon issued a sweeping order as follows:

'THE COMMISSION THEREFORE ORDERS RESPONDENT:

'1. To forthwith cease and desist from such unlawful and discriminatory practices.

'2. To employ and consider for employment as teachers in its schools Negro applicants on the basis of training, qualification and school need and not on the basis of the racial makeup of the pupils of such school.

'3. To assign its Negro elementary school supervisors for duty as it does its white supervisors and not on a basis of a Negro supervisor to a predominantly Negro school.

'4. To furnish its supervisors, Negro and white alike, office and school accommodations on the basis of position and not on the basis of color.

'5. To cease and desist from recognizing and encouraging separate and segregated teachers' associations.

'IT IS FURTHER ORDERED, that respondent take the following affirmative actions:

'1. To reassign its teachers and to establish procedures so as to eliminate the condition whereby Negro teachers are being assigned to predominantly Negro schools and white teachers to predominantly white schools.

'2. To employ and consider for employment qualified Negro applicants as teachers in schools attended predominantly by white children.

'3. To issue a public statement on its policy of no discrimination in employment and assignment of teachers and to use the same in the recruitment, selection and hiring of its teachers.

'4. To make known to the various teachers' associations its disapproval of separate teachers' associations for Negro and white elementary school teachers.

'5. To provide the Kansas Commission on Civil Rights, within ninety days hereafter, with a written report of the manner of compliance with the above orders.'

Thereupon the school board appealed to the Wyandotte County district court.

After the commission announced its decision that teachers should be transferred from one school to another to effect integration, the teachers became alarmed and intervened by a class action so that their rights might be fully protected.

The motion by the teachers to intervene recites:

'Come now John E. Hirsch, Randall R. Dunn, Mary Wolfe, Phoebe May and Gerald W. Hall, acting for themselves individually and as officers of and as designated agents for Kansas City, Kansas Teachers Association and move for leave to intervene as respondents. * * *'

The teachers' motion to intervene is intermingled with the third issue in the complaint, which charged that the school board discriminated by supporting separate teachers' associations-some only for negro teachers, and some only for white teachers. There was absolutely no testimony at the hearing before the civil rights commission to support this charge. The superintendent of schools testified positively that such separate associations did not exist, and the investigating commissioner found there was no probable cause to submit this issue to the commission for decision. In fact, counsel arguing the teachers' cause before this court on appeal stated that the teachers' association which intervened represented all tenure teachers, both colored an white, in the Kansas City, Kansas, school system. Furthermore, the individuals named as interveners and officers of the Kansas City, Kansas, Teachers' Association constitute...