Mills v. Birmingham Board of Education, 71-1116.

• Decision Date: 08 November 1971
• Docket Number: No. 71-1116.,71-1116.
• Citation: 449 F.2d 902
• Parties: Betty B. MILLS and MacDonald Gallion ex rel. the State of Alabama, Plaintiff-Appellant, v. BIRMINGHAM BOARD OF EDUCATION, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

449 F.2d 902 (1971)

Betty B. MILLS and MacDonald Gallion ex rel. the State of Alabama, Plaintiff-Appellant, v.BIRMINGHAM BOARD OF EDUCATION, etc., et al., Defendants-Appellees.

No. 71-1116.

United States Court of Appeals, Fifth Circuit.

September 27, 1971.

Rehearing and Rehearing Denied November 8, 1971.

Hugh A. Locke, Jr., Palmer W. Norris, Birmingham, Ala., for plaintiff-appellant.

Reid B. Barnes, William G. Somerville, Jr., C. John Holditch, Lange, Simpson, Robinson & Somerville, Birmingham, Ala., for appellees.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 8, 1971.

PER CURIAM:

The order appealed from dismissed this action on the pleadings without a trial.While in bulk it was correct and is affirmed, we must vacate one portion and remand the cause so that the plaintiffs may have the opportunity to adduce hard evidence to support the broad allegations of paragraph 6 of the complaint.^*

The inception of our problem was this Court's mandate in Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211(5th Cir.1969), for racially-balanced public school faculties.On June 19, 1970, the dictates of this decision became embodied in a decree applicable to the defendantBoard of Education in the case of Armstrong, et al. v. The Board of Education of the City of Birmingham, Alabama.Under this Order, the plaintiff-teacher in the case sub judice was one of a number of teachers in the Birmingham system who were transferred by the Board of Education from the school at which she had taught for several previous years.The numerous transfers required by the school board in discharging its court mandated duties provoked widespread reaction among the system's teachers, who had acquired tenure in their positions under Alabama law.The school board moved the Armstrongcourt for a more adequate explication of its duties.On September 3, 1970, the district court entered another order in Armstrong which stated that faculty and staff members who refused to accept their new assignments under board ordered transfers within five days of the court's Order were to be terminated, and that neither the substantive nor the procedural provisions of Sections 355-361,Title 51 of the Alabama Code of 1940(the Alabama Teacher Tenure Act)¹ were applicable to such transfers.

The plaintiff-teacher advised the board that she still refused to accept her new assignment.The School Board thereupon notified her that she had to report to her new teaching assignment by the morning of September 8, 1970 or have her employment terminated.She continued to refuse to so report and instead, together with the Attorney General of the State of Alabama, on September 11, 1970, filed this suit in the Chancery division of the Circuit Court of the 10th Judicial Circuit of Alabama, principally seeking to enjoin the Board from transferring her.The Circuit Court, acting ex parte in a proceeding held on the date the complaint was filed, granted the requested injunction conditioned upon the filing of a 250 dollar bond.

On September 14, 1970, prior to the posting of the required bond, the School Board removed the case to the court below on the ground that the purpose and effect of the suit was the nullification and circumvention of that court's faculty desegregation order of June 19, 1970.The Board simultaneously moved to dismiss the action.The plaintiff-teacher and Attorney General filed a motion to remand.

Insofar as the complaint sought and resulted in injunctive relief preventing the School Board's strict compliance with the uniform faculty assignment provisions of Singleton,supra,the district court's order of dismissal was entirely correct.The School Board had a duty of compliance with the Constitutional mandate of Singleton that could not be avoided through the use of any local tenure or teacher hiring-security statutes.United States v. Board of Education of City of Bessemer, 396 F.2d 44(5th Cir.1968);see alsoUnited States v. Indianola Municipal Separate School Dist., 410 F.2d 626(5th Cir.1970), United States v. Greenwood Mun. Sep. School Dist., 406 F.2d 1086(5th Cir.1969)andMontgomery County Bd. of Ed. v. Carr, 400 F.2d 1(5th Cir.1968).Thus the district court properly dismissed the portion of the complaint that sought injunctive relief against immediate compliance with the School Board's order.The allegations contained in a portion of the sixth paragraph of the complaint charged that the plaintiff-teacher's transfer was not necessitated by the district court's order in Armstrong, but was made for political or personal reasons in unnecessary violation of the Alabama Teacher Tenure Act.²It should also be noted that in addition to injunctive relief, the complaint prayed for the return of the plaintiff-teacher's teaching position, back pay for the 1970-71 school year, and for such general relief as might be mete and proper in the premises.

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80(1957), supplemented by this Court's long line of decisions concerning dismissals on pleadings — see, e. g.,Pred v. Board of Public Instruction of Dade County, Fla., 415 F.2d 851(5th Cir.1969), announce this rule for testing the merits of a motion to dismiss on the basis of the pleader's statements alone:

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.355 U.S. at 45, 78 S.Ct. at 102

If the plaintiff-teacher can show that it was possible for the School Board to comply with the provisions of the Alabama Teacher Tenure law which forbids transfers for personal or political reasons while carrying out the order of the court; that is, she can show that her transfer — assertedly in compliance with the district court's order — was in fact motivated by nepotism or personal or political improprieties rather than court ordered racial balance, she would...