Smith v. Board of Education of Morrilton Sch. Dist. No. 32

Citation365 F.2d 770
Decision Date14 September 1966
Docket NumberNo. 18243.,18243.
PartiesClement S. SMITH, and The Arkansas Teachers Association, Inc., and Margaret J. Sanders, Appellants, and United States of America, Intervenor-Appellant, v. The BOARD OF EDUCATION OF MORRILTON SCHOOL DISTRICT NO. 32, Dr. H. B. White, Felver Rowell, Jack Bland, W. O. Byrd, William Wafford, Wylie Cox, Directors of the Morrilton School District No. 32, and Terry Humble, Superintendent of Schools, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)



Michael Meltsner, New York City, for appellants. John W. Walker, Harold Anderson, Little Rock, Ark., and Jack Greenberg and Derrick A. Bell, Jr., New York City, were on the brief.

James L. Kelley, Atty., Dept. of Justice, Washington, D. C., for United States, intervenor. John Doar, Asst. Atty. Gen., St. John Barrett, and Franklin E. White, Attys., Dept. of Justice, Washington, D. C., and Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark., was with him on the brief.

Robert V. Light, Little Rock, Ark., for appellees.


BLACKMUN, Circuit Judge.

This appeal presents issues which emerge in the wake of public school desegregation. Specifically, we are confronted with aspects of job protection, if any, afforded negro teachers by the equal protection clause of the Fourteenth Amendment when desegregation results in the closing of an all-negro school. The district court dismissed the complaint on the merits. Thereafter, at the appellate stage, the Attorney General certified the case as one of general public importance; pursuant to the provisions of § 902 of the Civil Rights Act of 1964, 42 U.S.C. § 2000h-2, we granted the United States leave to intervene as an appellant.

The suit is one on behalf of negro teachers in Morrilton, Arkansas. It was instituted by Clement S. Smith and The Arkansas Teachers Association, Inc. (with Margaret J. Sanders, by leave of court, as an intervening party plaintiff) against the incorporated Morrilton School Board, the Board's five directors, and Terry Humble, superintendent of the Morrilton public schools. The relief sought is an injunction requiring the employment of high school teachers without regard to race, and the reassignment of elementary teachers and pupils on a basis which disregards race, or, in the alternative, money damages and the presentation and implementation of a plan of reorganization of the school system on a non-racial basis "and the elimination of all other racial factors in school operations". Jurisdiction is established under the old civil rights statutes, 42 U.S.C. §§ 1981 and 1983, and under 28 U.S.C. § 1343(3) and (4) and is not questioned.

Plaintiff Smith is a Negro. He taught high school science in Morrilton and was dismissed as hereinafter described. The corporate plaintiff, The Arkansas Teachers Association, Inc., is a non-profit Arkansas corporation with a membership of about 3400 negro teachers in the State. ATA is apparently authorized to engage in litigation for the protection of its members.

The defendants coupled their answer with a motion to dismiss as to ATA on the ground that it is neither a real party in interest, Rule 17(a), Fed.R.Civ.P., nor a member of a class on behalf of which relief is sought, Rule 23(a), and to dismiss as to Smith for the same reasons so far as he purports to act on behalf of negro pupils, and, so far as he purports to act for other teachers, on the grounds that the class is not so numerous that joinder of all members is impracticable and that his interest is adverse to all others in the class.

The background facts. Until September 1965 teachers and pupils in the Morrilton school system were fully segregated by race. Some demands for desegregation were first made in January of that year. The system serves about 1750 white pupils and about 360 Negroes. There were four elementary schools, one negro and three white, and two junior-senior high schools, one white and one negro. The negro school, covering grades seven through twelve, was known as the L. V. Sullivan High School and had about 166 pupils. The three upper grades of the white school, known as the Morrilton High School, had about 375 pupils; its three lower grades had about the same number.

The staff at Sullivan consisted of a principal and seven teachers, including plaintiff Smith and intervenor Sanders.

In late February 1965, following a custom of some years, Superintendent Humble by letter advised each Sullivan teacher of his "re-election" to the staff of that school for the 1965-66 school year. The letter stated that this was dependent upon student enrollment at the school; that it was not then possible to be specific about salary; and that a contract would be offered at a later date. It asked the recipient to return a form if he intended to remain with the system "pending your acceptance of financial terms". All Sullivan teachers so indicated a desire to be rehired.

Also in February 1965 the school board unanimously adopted and submitted a desegregation plan to the Office of Education of the United States Department of Health, Education and Welfare. Apparently this action was at least partially in response to Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d et seq., and the HEW regulations thereunder which condition federal financial assistance upon nondiscriminatory activity. The plan as originally submitted noted the anticipated opening of a new high school plant in September. It called for the desegregation of grades seven through twelve by that date, through the freedom-of-choice method, and of grades one through six by September 1966 by the same method. It said nothing about faculty desegregation. The plan was amended in May, however, to follow an HEW-Arkansas form and to include a statement relating to faculty.1

By way of implementing the freedom-of-choice approach, forms were distributed in May 1965 to all pupils then in grades six through eleven. This included 176 Negroes. Their response was overwhelmingly one way: 81 chose to attend the new integrated senior high school; 79 chose to attend the former all-white school which was now to become the junior high; 12 did not return the form; and only four selected Sullivan The record contains nothing as to the response from white pupils.

With these results before them, the school board on May 27, 1965, concluded that it would be uneconomical to operate the Sullivan school in 1965-66 with only four pupils; that Sullivan should be closed; and that the four pupils should be assigned to the then-to-be integrated junior and senior high schools.

The following day, May 28, Superintendent Humble went to the Sullivan school. He first conferred with its principal, Hymon King, and told him that he was to be retired because he had reached age 65. Humble then saw the seven teachers together and told them of the decision to close Sullivan and that their jobs were to be abolished. This was confirmed by letter handed to each teacher at the time. This suit was then instituted in June.

Mr. Humble testified that as of May 28 no vacancy existed on Morrilton's secondary school staff; that no vacancy for 1965-66 had been filled prior to that date; that he then "didn't know of any vacancies that would occur"; that the staff of the former all-white junior-senior high school would not have to be increased as a result of the absorption of the negro pupils; that he did not advise the Sullivan teachers that they would be eligible to apply for any senior or junior high position which might become available or that they could apply to teach in any of the white elementary schools; that, however, vacancies had occurred during the summers of prior years; that he "had reason to expect it would happen" in 1965; that he told the Sullivan teachers in May he had nothing to offer them; and that he did not suggest to them that vacancies might arise or remind them that they must apply in order to receive consideration.

In fact, 13 teachers did resign or retire during the summer of 1965. Nine of these had taught at the white junior-senior high school. Fourteen new teachers were hired; 12 were white and received positions in the senior or junior high schools. Although none of the Sullivan teachers had applied for the accruing vacancies, Mr. Humble, according to his testimony, did consider their qualifications in filling those vacancies but found them inferior to those of the white applicants who were hired.

Two of the Sullivan teachers, however, were offered employment in the negro elementary school without the necessity of a formal application. One, Mrs. Zeophus King, wife of the principal, had been the librarian. She orally accepted the new position at first but then asked to be released. The other, Margaret J. Sanders, had taught mathematics. Following her intervention as a plaintiff in the present case she was offered the position Mrs. King had refused. She declined this offer because, she testified, she felt a transfer to the elementary level to be a demotion. At the time of the trial former principal King was teaching as a substitute in the negro elementary school.

The district court filed a memorandum in support of its order dismissing the complaint. It observed that the accelerating integration of students poses an economic threat to negro teachers as a class; that this "has always been apparent"; and that the Fourteenth Amendment, however, does not guarantee any racial group a right to public employment or to preferential treatment. The court found that no vacancies existed on the faculties of the remaining schools when Sullivan was closed; that the Sullivan student body could be absorbed into the formerly all-white junior and senior high grades without increasing their faculty; that the Board did not employ extra white teachers in order to avoid offering employment to the Sullivan faculty...

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