National Ed. Ass'n v. BOARD OF SCH. COM'RS OF MOBILE CTY., ALA., 73-2514.

Citation483 F.2d 1022
Decision Date27 August 1973
Docket NumberNo. 73-2514.,73-2514.
PartiesNATIONAL EDUCATION ASSOCIATION et al., etc., Plaintiffs-Appellants, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, ALABAMA, et al., etc., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Solomon S. Seay, Jr., Montgomery, Ala., for plaintiffs-appellants.

Abram L. Phillips, Jr., Mobile, Ala., for defendants-appellees.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

BELL, Circuit Judge:

This appeal arises out of the Mobile School desegregation case.1 It presents the effort of the NEA to superimpose a class action upon a pending class action.

The NEA utilized the strategy of joining with two teachers who were seeking employment in the Mobile system in bringing the action. The two teachers premised their complaint on the claim that they had teacher certificates granted by the state and were refused employment as teachers in the Mobile system although there were 69 teachers in the system with only provisional certificates. (69 out of a total of 2,559 teachers). No racial discrimination was alleged as a part of their claim. They sought a mandatory injunction to compel their employment. They were later employed as teachers in the system and the district court dismissed their complaint but with the right to amend within 15 days to seek damages or other relief. They filed no amendment, the complaint was then dismissed as to them and the NEA, and this appeal followed. As was true in the district court, they and the NEA are represented here by the same law firm. We have searched the brief, filed jointly on behalf of the teachers and the NEA, in vain for any assignment of error whatever as to the ruling with respect to the individual claims of these teachers. The part of the order of the district court dismissing as to them is therefore affirmed, and we turn to the claim of the NEA.

In the first place, we must have in mind that NEA has petitioned to intervene in the pending class action involving the Mobile school system and that petition is presently before the district court. We have recently held that the proper and orderly procedure to be followed by third parties in seeking to enter pending school cases is by a petition to intervene. See Hines v. Rapides Parish School Board, 5 Cir., 1973, 479 F.2d 762; Lee v. Macon County Board of Education (Conecuh County), 5 Cir., 1973, 482 F.2d 1253. This is all the more important in this case which is now in its second decade in the federal courts. Following reversal of this court in Mobile IX by the Supreme Court in Davis v. Board of School Commissioners of Mobile County, 1971, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577, the parties formulated and implemented by consent order a "Comprehensive Plan for a Unitary School System". That plan was quite specific as to the rights of faculty and staff members in the context of desegregation and racial discrimination. The plan and consent order adopted the uniform requirements of Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 419 F.2d 1211 (En banc), with respect to such matters. The district court retained and has continuing jurisdiction over faculty and staff assignments; indeed, over every matter which the NEA attempts to assert in its own class action.

Without naming or purporting to represent any particular individual complainant, whether a member of the NEA or otherwise, the NEA seeks to restrain defendants from " . . . continuing to demote and/or dismiss black principals, assistant principals, band directors, athletic coaches and other black teachers solely by reason of race or color and without the application of non-racial objective criteria." Reinstatement and back pay was sought for all black personnel who had suffered this alleged treatment. It was also alleged that many persons holding the positions in...

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3 cases
  • Brown v. Moore, Civ. A. No. 75-298-P.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • December 13, 1976
    ...in part, rev. in part, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 X. Davis, 483 F.2d 1017 (1973) XI. National Education Ass'n v. Board of School Comm. of Mobile County, 483 F.2d 1022 (1973) XII. Davis, 496 F.2d 1181 (1974) XIII. Davis, 517 F.2d 1044 (1975) XIV. Davis, 526 F.2d 865 (1976) 13......
  • Davis v. Board of School Com'rs of Mobile County, s. 74-3894
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 21, 1975
    ...a class action on behalf of the black school administrators and teachers in the system on the pending class action. National Education Association, supra, n. 1, 483 F.2d 1022 (NEA ). In doing so, we pointed to our prior decisions which required any complaint of discrimination within the sco......
  • Davis v. Board of School Commissioners of Mobile County, 73-1603.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 27, 1973
    ......U. Blacksher, Mobile, Ala., Jack Greenberg, William Robinson, Norman ... area with shipbuilding companies and National Gypsum just across Interstate 10. ......

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