Stephens v. Unified School Dist. No. 500

• Decision Date: 01 December 1975
• Docket Number: No. 47705,47705
• Citation: 546 P.2d 197,218 Kan. 220
• Parties: , 15 Fair Empl.Prac.Cas. (BNA) 1037, 11 Empl. Prac. Dec. P 10,859 In the Matter of Clarence STEPHENS, Appellant, v. UNIFIED SCHOOL DISTRICT NO. 500, Appellee.
• Court: Kansas Supreme Court

Page 197

546 P.2d 197

218 Kan. 220, 15 Fair Empl.Prac.Cas. (BNA) 1037,

11 Empl. Prac. Dec. P 10,859

In the Matter of Clarence STEPHENS, Appellant, v. UNIFIED SCHOOL DISTRICT NO. 500, Appellee.

No. 47705.

Supreme Court of Kansas.

Dec. 1, 1975.

Syllabus by the Court

1. The rehearing requirement of K.S.A. 44-1010, relating to procedure before the Kansas Commission on Civil Rights, is a reasonable procedural requirement in exhausting administrative remedies before that commission and it is not repugnant to the scope of judicial review provisions set forth in K.S.A. 44-1011. (Following Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 510 P.2d 132, Syl. 3.)

2. There is a distinction between the types of decisions rendered by different administrative agencies; and some such agencies perform judicial or quasi-judicial functions while others do not. (Following Gawith v. Gage's Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P.2d 966, Syl. 1.)

3. In determining whether an administrative agency performs legislative or judicial functions, the courts rely on certain tests; one being whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative body must make, and another being whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to the creation of the administrative body. (Following Gawith v. Gage's Plumbing & Heating Co., Inc., supra, Syl. 2.)

4. A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist, whereas legislation looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. (Following Gawith v. Gage's Plumbing & Heating Co., Inc., supra, Syl. 3.)

5. In applying tests to distinguish legislative from judicial powers, courts have recognized that it is the nature of the act performed, rather than the name of the officer or agency which performs it, that determinates its character as judicial or otherwise. (Following Gawith v. Gage's Plumbing Heating Co., Inc., supra, Syl. 4.)

6. In determining whether specific conduct of a respondent constitutes an unlawful discriminatory practice the commission on civil rights is exercising a judicial function and acts as a quasi-judicial agency.

7. On appeal from a decision of the commission on civil rights the district court is to try the matter de novo, with the issues of both law and fact to be determined anew. The issues in such a trial, however, are limited to those fairly embraced within the appealing party's application for rehearing before the commission.

8. Syllabus 2 and the corresponding portion of the opinion in Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 510 P.2d 132, are disapproved.

9. In a civil rights case where the trial court correctly conducted a trial de novo in an appeal from the commission on civil rights, and its findings on the merits are not challenged on appeal, its judgment is affirmed.

David L. Ryan, Topeka, argued the cause, and Curt T. Schneider, Atty. Gen., Charles S. Scott, Topeka, and Roger W. Lovett, Topeka, were with him on the briefs for appellant.

Willard L. Phillips, Kansas City, argued the cause, and Patrick D. McAnany and Gloria Vusich, Kansas City, were with him on the briefs for appellee.

FOTH, Commissioner:

This case arises under the Kansas act against discrimination, K.S.A. 44-1001 et seq. The issues presented are procedural, involving what is required to preserve for judicial review a claim made before the Kansas commission on civil rights, and what the scope of that review should be when it is made.

In 1970 Clarence Stephens was employed by the appellee Unified School District No. 500 as a tenured teacher, and the school's only black teacher, in Central Junior High School in Kansas City. Central's student body was largely white. That summer he married Carolyn Sue Fuller, a white woman who was also a tenured teacher at Central. Upon learning of the marriage when school was about to start in August, Central's principal immediately expressed concern over the problems it would create. He informed Stephens that an unwritten policy of the school district precluded married employees from working in the same school, and that he would have to transfer to another school. After a conference the next day with an assistant superintendent of schools, Stephens was transferred to Northeast Junior High School. There the faculty was predominantly black, and the student body was entirely black. He replaced a white teacher who was transferred to Stephens' old position at Central. There were at that time two married couples teaching at Northeast, and they were permitted to continue to teach there despite the unwritten rule. Stephens subsequently filed a complaint with the Kansas commission on civil rights alleging that the transfer was racially discriminatory and constituted an unlawful employment practice in violation of K.S.A. 44-1009(a)(1).

An investigating commissioner found probable cause to credit the allegations of Stephens' complaint, and when efforts at conciliation failed the matter proceeded to public hearing. After three days of hearing the case was taken under advisement. In due course the commission entered its order, accompanied by 79 findings of fact and 7 conclusions of law (occupying in all 19 pages in the Record on Appeal).

In essence the commission found:

1. In the immediate past four years the district had made an exception to its unwritten rule for the benefit of married teachers who had tenure in at least ten instances. No prior case of its enforcement against a tenured teacher was discovered. In the 1970-71 school year the policy was enforced against four couples. The Stephenses and one other couple were tenured, the other two couples were newly hired for that year. The effect, the commission found, was to treat Stephens differently from others similarly situated, i. e., from the other tenured teachers for whom exceptions had been made in the past and were currently being made.

2. The principal's conduct upon hearing of the marriage and in requesting the transfer was in itself discriminatory.

3. The effect of the transfer was to affect adversely the racial balance at both Central and Northeast without any valid business motive to redeem the move.

Finding a violation of the act, the commission ordered Stephens reassigned to Central and forbade the further transfer of him or his wife without commission approval. The school district was further ordered to report on its compliance to the commission.

The school district filed a timely motion for rehearing, which will be discussed later. In response the commission modified its findings in particulars which are unimportant here, and reaffirmed its original determination as modified. The school district filed a notice of appeal to the Wyandotte county district court, indicating that the appeal was from the original findings, conclusion and order, and from the ruling on its motion for rehearing.

In the district court the commission moved to dismiss. It contended that the district's motion for rehearing (a) was not specific enough to preserve any issue on appeal, and (b) did not challenge the commission's second and third grounds ('2' and '3' above) for finding a violation, which were alleged to be alternative grounds adequate to support the commission's order.

The trial court overruled the motion to dismiss and granted the parties unlimited discovery rights in order to sharpen the issues to be tried. Later it announced its intention to conduct a trial de novo, and directed the parties to file and exchange lists of witnesses.

Ultimately both parties declined to offer any new evidence and the matter was submitted to the trial court on the transcript of the record before the commission. In a letter opinion the court, after reciting the history of the proceeding, made the following findings:

'The Court finds that in Unified School District No. 500 there did exist at the time of this incident an unwritten rule which generally provided that married teachers would not be permitted to teach in the same school, the rule also applying to blood relatives. This unwritten rule existed in its origins basically concerning relationships by blood. This was early in the school district's existence at a time when married women were not permitted under any circumstances to teach in any school in the district.

'That during the War years, that is, during the 1940's, this rule had very little if any, application by reason of the fact that so many men teachers were in the armed forces and married females were taken into the system to fill this void.

'The testimony further showed that subsequent to this period, and after the armistice of World War II, and with the population explosion being what it was, the demand for teachers necessitated some relaxation of this rule, and then only in the last few years has it been regularly applied in District 500.

'The evidence in this case further showed that in the year in question, 1970-71, this rule was enforced to its fullest extent, with the exception of those instances of teachers in the system who had for many years been employed as exceptions to this particular rule.

'The evidence further showed that during the school year of 1970-71, all teachers coming into the system for the first time and those who had been in the system and had married during the summer of 1970 were treated alike and were separated by the school district and placed in separate schools.

'The evidence further showed that in the case of Mr. and Mrs. Clarence Stephens, they were the only interracial couple in School District 500, that is, a married (couple) composed of a Cavcasian and a Negro, which was affected by...