Moore v. BOARD OF ED. OF CHIDESTER SCH. DIST. NO. 59, ARK., 20416.

• Decision Date: 13 September 1971
• Docket Number: No. 20416.,20416.
• Citation: 448 F.2d 709
• Parties: Addie MOORE et al., Appellants, v. The BOARD OF EDUCATION OF the CHIDESTER SCHOOL DISTRICT NO. 59, CHIDESTER, ARKANSAS, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

448 F.2d 709 (1971)

Addie MOORE et al., Appellants, v. The BOARD OF EDUCATION OF the CHIDESTER SCHOOL DISTRICT NO. 59, CHIDESTER, ARKANSAS, et al., Appellees.

No. 20416.

United States Court of Appeals, Eighth Circuit.

September 13, 1971.

Richard L. Mays, Little Rock, Ark., Philip E. Kaplan, Walker, Kaplan, Lavey & Mays, Little Rock, Ark., Jack Greenberg, James Nabrit, III, Buford Kaigler, New York City, for appellants.

William I. Prewett, El Dorado, Ark., Brown, Compton, Prewett & Dickens, ElDorado, Ark., for appellees.

Before LAY, HEANEY and BRIGHT, Circuit Judges.

HEANEY, Circuit Judge.

The principal question in this appeal is whether the Board of Education of the Chidester School District has unlawfully discriminated against the plaintiff black teachers by failing to provide employment for them following the integration of the previously segregated school system.

Chidester School District has historically operated a dual school system with the black pupils attending Pleasant Hills School and the white pupils attending Chidester School.¹ In 1967-68 and 1968-69, the school district operated under a freedom of choice integration plan. Under this plan, some black students attended the Chidester School, but the Pleasant Hills School remained completely black. In 1968-69, the racial composition of the 331 pupils within the system was 244 black and 87 white.² The racial composition of the 26 teachers employed by the district was 15 black and 11 white.

Prior to the beginning of the 1969-70 school year, the district voluntarily adopted an integration plan closing the black school and requiring all pupils to attend the Chidester School. As part of the consolidation, the district, on May 31, 1969, gave notice by mail to 5 black teachers, including the 4 plaintiffs, that their contract of employment would not be renewed. All white teachers were offered new contracts. By the end of the school year 1969-70, 18 (or 19) teachers were employed.³ Of these, only 7 (or 8) were black and 11 were white.

The plaintiffs brought this action in the District Court under 42 U.S.C. §§ 1981 and 1983 to challenge the lawfulness of their dismissals⁴ under the due process and equal protection clauses of the Fourteenth Amendment. This appeal is from the decision of the United States District Court for the Western District of Arkansas dismissing their complaint.

We are convinced, from reading the record and the District Court's decision, that the District Court proceeded on the basis that the plaintiffs had the burden of proving that their dismissals were discriminatory. In this, it erred.

While the burden of proving discrimination would under some circumstances rest with the dismissed teachers, under other circumstances, we have held it shifts to the school district. A school district must show by "clear and convincing" proof that the dismissal of black teachers was not unlawfully discriminatory if the district has a long history of segregation, if there is a decrease in the number of black teachers, if the proportion of the black faculty to white faculty is significantly less than the proportion of black to white students, and if only black teachers are dismissed. Jackson v. Wheatley Sch. Dist. No. 28 of St. Francis Co., Ark., 430 F.2d 1359, 1363 (8th Cir. 1970); Haney v. County Board of Education of Sevier County, 429 F.2d 364, 370, 371 (8th Cir. 1970); North Carolina Teachers Ass'n v. Asheboro City Bd. of Ed., 393 F.2d 736, 743 (4th Cir. 1968) (en banc); Rolfe v. County Board of Education of Lincoln County, Tenn., 391 F.2d 77, 80 (6th Cir. 1968); Chambers v. Hendersonville City Board of Education, 364 F.2d 189, 192 (4th Cir. 1966) (en banc). Each of these factors is present here.

The failure of the District Court to properly assign the burden of proof would be grounds for remand unless we were satisfied that the school district had met that burden. We are not so satisfied here. Furthermore, we believe that there are other sound reasons why a reversal of the trial court is required.

First, the record shows that some teachers voluntarily declined to renew their contracts. The board did not offer any of the black teachers, whose contracts had not been renewed, the opportunity to fill any of the vacancies arising out of these resignations. While this Court has not had occasion to rule directly⁵ on the obligation of a Board of Education under these circumstances, the Fourth and Fifth Circuits have held that even if an initial dismissal is based on nondiscriminatory standards applied in a nondiscriminatory manner, a teacher possessed of the requisite minimum qualifications is entitled to the first available job without the board's comparing him with new applicants. Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 1211, 1218 (5th Cir. 1970); North Carolina Teachers Ass'n v. Asheboro City Bd. of Ed., supra 393 F.2d at 744; Chambers v. Hendersonville City Board of Education, supra 364 F.2d at 192.

"* * * When a system\'s needs change as a result of compliance with the basic law of the land outlawing racial discrimination, the equal protection clause will not permit the teachers so displaced to be treated as new applicants to the system, unless all teachers, including those to be retained, are so treated. * * *"

North Carolina Teachers Ass'n v. Asheboro City Bd. of Ed., supra 393 F.2d at 744.

In our view, the rule is a sound one and both plaintiffs Cross and Williamson fall within it.

Both of them possessed the minimum teaching qualifications required by the district. Indeed, the District Court commended them for their competence. In the case of Cross, a vacancy arose in his own teaching area which was filled by a teacher with none of Cross's experience. In Williamson's case, the vacancies arose in areas in which he had not been teaching, and in which he did not have a teaching certificate. But it was the common practice within the district to use teachers outside the area of their state certification. For instance, in the 1969-70 school year, a teacher certified in physical education taught typing. Not only was he not certified in this area, but he had no experience in the area at all. As School Superintendent Tolleson testified: "Well this teacher stayed with the class and I doubt that you would call it teaching typing." Furthermore, Williamson himself had taught outside of his area of certification during the 1968-69 year. Here, where the board has not shown that Williamson was incapable of teaching in the positions which opened outside of his area of certification, we find that he, as well as Cross, was racially discriminated against when he was not offered a position. If a school board seeks to impose as a minimum requirement for employment that a teacher be certified in the area he is to teach, then that requirement must be applied to all teachers within the system.

Second, the record shows that the board discriminated against the plaintiffs Moore and Ellingberg. A board, in integrating its school system, should ordinarily make provision for a plan governing the assignment and dismissal of teachers. Such a plan should establish standards and procedures for evaluating teachers. It should contain definitions and instructions for the application of the standards to a given teacher and should set forth methods by which the teacher is to be evaluated. Haney v. County Board of Education of Sevier County, supra 429 F.2d at 371; Singleton v. Jackson Municipal Separate School Dist., supra 419 F.2d at 1218; Wall v. Stanly County Board of Education, 378 F.2d 275, 278 (4th Cir. 1967).

Because this school district is so small, it might be permitted to have a less formal procedure; but it must, nonetheless, evaluate all teachers⁶ within the school district, using definite nondiscriminatory standards before dismissing any of them. Jackson v. Wheatley Sch. Dist. No. 28 of St. Francis Co., Ark., supra 430 F.2d at 1362; Wall v. Stanly County Board of Education, supra 378 F.2d at 276.

We concede that there is some ambiguity in the decisions of this Court as to whether the standards must be objective. Thus, in Haney v. County Board of Education of Sevier County, supra, 429 F.2d at 372, we modified a District Court order to "* * * require the * * * school board to adopt an objective and nondiscriminatory standard for the evaluation and retention of teachers * * *." (Emphasis added.) Other Courts also hold that the standards must be objective: Singleton v. Jackson Municipal Separate School Dist., supra 419 F.2d at 1218; Rolfe v. County Board of Education of Lincoln County, Tenn., supra 391 F.2d at 80; Wall v. Stanly County Board of Education, supra 378 F.2d at 276; Chambers v. Hendersonville City Board of Education, supra 364 F.2d at 193. On the other hand, we stated in Smith v. Board of Education of Morrilton Sch. Dist. No. 32, 365 F.2d 770, 781 (8th Cir. 1966): "* * * Fitness for teaching rests upon a broad range of factors and encompasses numerous personality and character traits. * * *" See also Brooks v. School District of City of Moberly, Missouri, 267 F.2d 733, 737; Morris v. Williams, 149 F.2d 703, 708 (8th Cir. 1945).

To reconcile these decisions, we now make clear that a board of education is obligated to use objective nondiscriminatory standards in the employment, assignment and dismissal of teachers. A board may also consider established and previously announced nondiscriminatory subjective factors in making such decisions. We emphasize, however, that:

"* * * race per se is an impermissible criterion for judging either an applicant\'s qualifications or the district\'s needs. And this applies equally to considerations described as environment or ability to communicate or speech patterns or capacity to establish rapport with pupils when these descriptions amount only to euphemistic references to actual or assumed racial

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