Mills v. Bd. of Education of Anne Arundel County, 170.

• Decision Date: 22 November 1939
• Docket Number: No. 170.,170.
• Citation: 30 F. Supp. 245
• Parties: MILLS v. BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY et al.
• Court: U.S. District Court — District of Maryland

30 F. Supp. 245

MILLS v. BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY et al.

No. 170.

District Court, D. Maryland.

November 22, 1939.

Thurgood Marshall, of New York City, and Leon A. Ransom and William H. Hastie, both of Washington, D. C., for plaintiff.

Noah A. Hillman, of Annapolis, Md., for Board of Education of Anne Arundel County.

William C. Walsh, Atty. Gen., of Maryland, and H. Vernon Eney, Asst. Atty. Gen., of Maryland, for State of Maryland, taking no active part.

CHESNUT, District Judge.

This case is a natural sequel to that of Mills v. Lowndes et al., in this court, 26 F.Supp. 792. In that case the same plaintiff, who is a colored school teacher employed by the Board of Education of Anne Arundel County, of the State of Maryland, sued the State Board of Education to secure an equalization of salaries paid to white and colored teachers in the public schools of Maryland. On motion of the defendants after extended argument, the complaint was dismissed for various reasons stated in the opinion, importantly including the absence from the record as a defendant of the County Board of Education. In the present suit the plaintiff has sued the County Board and its superintendent alone. Under the practice recently established by the new federal rules of civil procedure the defendants have filed third-party complaints against the State Board of Education and the County Commissioners of Anne Arundel County as third party defendants, and the latter have moved to dismiss these third party complaints.

The complaint in this case calls attention to the Maryland statute which provides a minimum scale of salaries for white teachers, graduated to professional qualifications and years of experience, and a separate statute providing a lower minimum for teachers in colored schools; and alleges that in practical application only white teachers are employed in white schools and colored teachers in colored schools, and that the latter are paid less in Anne Arundel County than white teachers solely on account of their race or color. The plaintiff contends that this constitutes an unconstitutional discrimination which is prohibited by the equal protection clause of section 1 of the 14th Amendment to the Federal Constitution, U.S.C.A. The prayer for specific relief is that "the court issue a permanent injunction forever restraining and enjoining the defendants and each of them from making any distinction solely on the grounds of race or color in the fixing of salaries paid white and colored teachers and principals employed for the public schools of Anne Arundel County, and from paying to the plaintiff or any other colored teacher or principal employed by them a less salary than they pay any white teacher or principal employed by them and filling an equivalent position in the public schools of Anne Arundel County". By an amendment to the original complaint the plaintiff also seeks a declaratory decree (under 28 U.S.C. § 400, 28 U.S.C.A. § 400) "that this court adjudge and declare that defendants' policy complained of herein, in the respects it is maintained and enforced pursuant to state statutes as well as in the respects it is maintained and enforced in the absence of controlling statutes, violates the due process and equal protection clauses of the 14th Amendment of the Constitution of the United States; and sections 41 and 43 of Title 8 of the United States Code."¹

A precise understanding of the Maryland statutory scheme of public education is essential to a considered opinion on the question presented by the pleadings and testimony in this case. The statutory provisions were discussed at length in the former case, 26 F.Supp. 792 (to which reference is hereby made) and need not now be repeated. The opinion in the former case was filed on March 1, 1939. The only subsequent legislation upon the subject is the Maryland Act of 1939, Ch. 502, approved May 11, 1939 and effective September 1, 1939, which established a new state minimum salary schedule for white teachers, setting up therein a single salary schedule based on preparation and experience, to replace the former position-experience schedule. The general effect of the Act was to somewhat increase the minimum salary schedule for white teachers, but without any increase in the previously established minimum salary for teachers in colored schools.² Attention should also be called to the Maryland Act of 1937, Ch. 552, effective September 1, 1939, which made the school term for colored children of equal duration to that for white children, there previously having been some disparity in the respective terms, those for colored children being generally a month or two shorter than those for white children. Hereafter for both it is required that the schools be kept open not less than 180 actual school days, or nine months in each year.

The historical development of Maryland legislation with respect to the comparative salaries for white and colored teachers is important in this case. The legislation is said to be unique in that while no maximum salary is prescribed for payment by the several County Boards of Education, there is a difference which has existed for many years in the minimum requirements with respect to white and colored teachers' salaries, by virtue of which the minimum for white teachers has always been very materially higher than the minimum for colored teachers. The rating of all teachers both white and colored is determined and certified to the County Boards by the State Board, and is based on uniform requirements. The salaries for white teachers (and to lesser extent for colored teachers) are graduated to professional qualifications and years of experience, so that the schedules are somewhat complex; but for simplicity of statement and for purposes of comparison it will be sufficient to take the case of white and colored teachers respectively who have a first grade rating and nine years or more experience. In 1904 the first minimum salary act for white teachers (there being none at all for colored teachers prior to 1918) prescribed a minimum for white teachers of $300 per annum; in 1908 and 1910 this was increased (for a teacher in white elementary schools having a first class rating and more than eight years' experience) to $450; in 1916 to $550; in 1918 to $600; in 1920 to $950; in 1922 to $1150; and in 1939 (on a slightly different basis as to professional qualifications and experience), to $1250, and, if the teacher held an academic degree, to $1450. By comparison the minimum for colored elementary teachers of similar rating has been much less. Their salaries have been fixed by statute not on a yearly but a monthly basis, and for some of the time heretofore, for seven months of the year. In 1918 the minimum was $280 per year, increased in 1920 to $455 per year; in 1922 to $595; and in 1939, (by reason of increase in the duration of the school year) to $765 per year. At the present time, therefore, the respective minima are $1250 for white teachers and $765 for colored teachers, with comparable professional qualifications and experience.

The plaintiff contends that the statutes are unconstitutionally discriminatory on their face and should be held generally invalid. On the other hand it is pointed out in defence of the statutes that they constitute minimum, not maximum, salaries, and that, while the minimum for white teachers is higher than the minimum for teachers in colored schools, the statutes affecting the latter do not expressly apply to colored teachers as such but only to all teachers in colored schools whether white or colored. It is also to be noted, as was pointed out in the opinion in the former case, that the County is the unit for public education in the State; that the County Boards of Education have full authority for discretion as to the actual amount to be paid to their teachers both white and colored, and are entirely at liberty, in co-operation with the County Commissioners of the Counties respectively, to pay higher salaries than the minimum fixed by law; and that in fact several of the twenty-three counties of the State, and Baltimore City, do pay equal salaries to white and colored teachers of equal professional qualifications and experience. It is clear enough, therefore, that in practical application the statutes of themselves do not necessarily require actual discrimination in practice between white and colored teachers on account only of their race or color.³ It is, however, equally clear that the statutes do permit the County Boards to make such discrimination, and there is ample evidence that in most of the counties of the State (including Anne Arundel County) a very substantial difference between the pay schedules of white and colored teachers has always existed. Thus it is shown that the annual average salary for white and colored teachers in elementary schools in the Maryland Counties for the period of 1921 to 1939 is in the ratio of nearly two to one in favor of the white teachers. In 1921 the comparative figures were $881 for white teachers and $442 for colored; in 1930 the respective figures were $1199 and $635, and in 1931, $1314 and $848. It is, however, fairly to be noted that in recent years the disparity has gradually been reduced. The average increase in salary over the nineteen-year period has been $433 for white teachers and $406 for colored teachers, or a percentage of increase of 49% for the white teachers and 92% for the colored teachers.

The controlling question in the case, however, is not whether the statutes are unconstitutional on their face, but whether in their practical application they constitute an unconstitutional discrimination on account of race and color prejudicial to the plaintiff. We must therefore look to the testimony in this case to see how the statutes have been applied in Anne Arundel County. In the first place we find that for some years past at least the County Board of Education...