Opinion
No. 74-1160.
May 8, 1975. Rehearing and Rehearing En Banc Denied October 10, 1975.
Hardy Lott, Greenwood, Miss., for defendants-appellants.
James O. Ford, Tupelo, Miss., David Rubin, Washington, D.C., H. M. Ray, U.S. Atty., Will R. Ford, Asst. U.S. Atty., Oxford, Miss., Stuart F. Pierson, Ben Krage, Attys., Dept. of Justice, Washington, D.C., Stephen J. Pollak, Richard M. Sharp, William F. Sheehan, III, Washington, D.C., for U.S. A.
Appeal from the United States District Court for the Northern District of Mississippi.
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
The issue in this case is whether the Coffeeville Consolidated School District improperly failed to re-employ four black teachers, Alma Faye Chapman, Evelyn R. Miller, Robert Bennett, and James A. Lewis. The District Court entered judgment for the teachers and the School District has appealed.
The panel unanimously agrees that James A. Lewis should be reinstated and that the case as to Evelyn R. Miller should be remanded for further proceedings. A majority of the panel holds that teachers Chapman and Miller should also be reinstated.
I [3] Background
In 1969, by its Attorney General, the United States sought to enjoin the Coffeeville School authorities from continuing to operate a dual school system. On March 12, 1970, the District Court, over objections by the government, approved a School Board plan of student desegregation, in which separate schools for boys and girls would be operated in the Coffeeville and Oakland attendance zones. At that time the standard Singleton order was entered. Inter alia, it directed that if there were to be a reduction in the number of teachers or other educational employees the selection of those to be demoted or dismissed would have to be made on the basis of objective and reasonable nondiscriminatory standards from among all the staff of the School District. As usual, it was further provided that upon such dismissal or demotion, no vacancy might be filled through recruitment of a person of a race, color, or national origin different from that of the individual dismissed or demoted until each qualified displaced staff member had an opportunity to fill the vacancy, and had failed to accept an offer to do so.
It was further ordered that prior to any reduction in force the Board should develop or require the development of nonracial objective criteria to be used in selecting those to be dismissed or demoted, with further appropriate provisions for the enforcement of that requirement.
For reasons not appearing of record, the Coffeeville Consolidated School District did not develop or promulgate the prescribed objective criteria.
On October 9, 1970, the District Court by modification of its prior order eliminated student assignment based upon separation by sex, effective at the end of the first semester of the 1970-71 school year. It directed the School Board to submit a new plan of student assignment based upon pairing and zoning. This plan was approved December 3, 1970, to take effect at the beginning of the next semester.
During the 1970-71 school year many black students boycotted the school. Members of the black community organized marches and boycotted Coffeeville merchants. There was an unhappy amount of turmoil and confusion. Subsequently, three black teachers were demoted. After a full hearing in February, 1971, these teachers were ordered restored to their prior positions.
For reasons, the details of which are far too lengthy to recite here, it was thought in early 1971 that the District faced the loss of twenty-four teacher units for the lack of students in numbers prescribed by state Average Daily Attendance standards. However, this anticipated loss was avoided. Twenty white teachers and three black teachers voluntarily left the system. One white teacher and seven black teachers were not re-employed "for cause". The appellants here are four of the seven blacks who were thus involuntarily terminated.
The District hired twelve new white teachers and six new black teachers, which resulted in total employment of thirty-four black teachers and thirty-four white teachers. This was the same ratio of black to white prevailing the previous year and was in compliance with the original District Court order which had required that black and white teachers be employed in equal numbers.
II [11] Position of the Parties
The black teacher appellants claim that they were entitled to the benefit of Singleton standards because they were dismissed in anticipation of a reduction in teachers, necessitated by the desegregation process. The School District denies this because, as it turned out, there was no reduction in the number of teachers employed. It is further argued that the School had, in fact, become a unitary one and the Singleton rule did not apply in any event.
We must agree with the conclusions of the District Court that at the time these teachers were not re-employed the desegregation process in this school system had not been completed, the school had not become unitary, United States v. State of Texas et al. (San Felipe Del Rio Consolidated School District), 5 Cir., 1975, 509 F.2d 192. The dismissed teachers were entitled to the Singleton protection.
Obviously, they did not receive this benefit, and could not have received it, because the School Board simply failed to obey the original order of the Court that objective criteria be developed for dismissals entered on account of or in anticipation of reductions which appeared to be inevitable. Moreover, when the School District found that there were to be no reductions it did not retrace its steps and undo the action caused by mistaken expectations.
III [15] Just Cause
The Coffeeville Consolidated School District seeks, however, to justify the dismissals on the grounds of just cause, independently of Singleton requirements.
It is the law of this Circuit that under certain circumstances, Singleton notwithstanding, discharges for just cause may be warranted without reference to any pre-established objective, reasonable standards, Thompson v. Madison County Board of Education, 5 Cir., 1973, 476 F.2d 676, 678.
"`Just cause' in a Singleton situation means types of conduct that are repulsive to the minimum standards of decency — such as honesty and integrity — required by virtually all employers of their employees, and especially required of public servants such as school teachers. No pre-established objective criteria are necessary to justify the discharge of a teacher whose conduct does not measure up to these minimum standards of behavior. For example, if a teacher came to school drunk, or was found stealing from the school treasury, or sexually assaulted a student, the school board could substantiate on `just cause' grounds its firing of that teacher, even though the school system was still in the process of desegregation and whether or not the school board had established any Singleton criteria for discharge or demotion." 476 F.2d 679.
The Court was careful to point out what just cause "is not" in a Singleton context:
"However, `just cause' in a Singleton situation does not refer to a teacher's lack of professional credentials, his poor performance in the classroom, his failure to abide by school regulations, his lack of cooperation, or other similar explanations. These types of reasons for discharge fall directly within the scope of Singleton, and accordingly such discharges must be justified on the basis of objective and reasonable standards for dismissal previously set by the school board. If this kind of a discharge can be justified in terms of the established objective standards, it is not for `just cause'; it is simply a discharge in compliance with Singleton criteria." 476 F.2d 678.
Even under Singleton, the hands of a school district are not tied. A school district does not have to put up with incompetency, poor performance, failure to abide by school regulations, lack of cooperation, or the like. All the district has to do is to develop objective, not subjective, criteria, in advance. The purpose of this is to insure that dismissals will not occur solely for racial reasons.
Thompson v. Madison County Board of Education laid down another very salutary principle: After a hearing, on notice, the findings and decision of academic administrative bodies are to be upheld by the Courts when reached by correct procedures and supported by substantial evidence, 476 F.2d at 678.
The teachers now before us were given prolonged and extensive hearings. Unfortunately, the Board followed this with no findings of fact which could have been reviewed under the substantial evidence rule.
IV [22] Action in the District Court
Under these circumstances, the District Judge quite properly proceeded to hold hearings of his own. He made findings of fact and conclusions of law, set forth in United States v. Coffeeville Consolidated Schools District, D.C., 365 F. Supp. 990.
On the hearing for preliminary injunction, the District Court denied the injunction, holding at that time that "we are not dealing with a reduction of staff case, but we are dealing with a case involving an attempt by school officials to discharge for reason of cause". This meant, no doubt, that in the absence of the objective criteria, just cause was the only available defense. After the hearing on the merits the Court found that this was a reduction case. Possibly he was referring to the expected reduction which had set in motion the whole train of events hereinabove discussed. In any event, a review of the record as a whole permits of no defense except that of just cause.
The original plaintiffs in the original desegregation suit filed a motion for supplemental relief, April 28, 1971. In that motion it was asserted that "several black teachers", without naming them, have been given notice that their contracts would not be renewed for the 1971-72 school year, that the sole basis of their termination was race, that no reasons or basis for the dismissal had been given, that the dismissal of the black teachers was merely a continuation of a pattern and practice on the part of the School Board in denying blacks equal protection of the law and that the dismissal of the teachers is "meant to have a chilling effect on the black community in their effort to secure this fundamental right". The motion asserted no Singleton violation. The motion, however, concluded with a four line prayer "That this Court grant supplemental injunctive relief to reinstate the black teachers terminated without hearing or good cause, and such further continuing relief as may be necessary". Back pay and attorney fees were not specifically mentioned.
After the preliminary injunction was denied, the teachers took no further action. The litigation was fired up the second time, on the merits, by a motion filed by the same original plaintiffs (not the teachers). The teachers are not appellants here, the appellants being the original plaintiffs in the original desegregation suit. Nominally, this includes the United States, although the United States took no part in a hearing on the merits. In any event, the Court had retained jurisdiction over the desegregation process and we have no doubt that the plaintiffs had standing to challenge any Board action which amounted to a substantial interference with that process.
We now take up the facts as to each teacher individually.
V [28] James A. Lewis
An examination of the evidence with reference to Lewis indicates that all the charges against him were directed toward his competency in the management of the shop in which he conducted his classes. The evidence raises no Thompson v. Madison County Board of Education just cause issue. Obviously, under Singleton requirements Lewis' discharge was improper and the District Court correctly decided that he was entitled to reinstatement.
VI [30] Evelyn R. Miller
Most of the allegations with reference to Teacher Evelyn R. Miller had to do with real and supposed deficiencies in the competency of her teaching. As a Singleton matter, this afforded no basis for discharge.
There was another charge, however, (undisputed so far as we can find) that Mrs. Miller on occasion punished her students by keeping "two little boys in her class standing for twelve minutes by the watch while touching their toes". Another student, a girl, age twelve, called by Mrs. Miller as her own witness, testified that she had been required to bend over touching her toes for about ten minutes, but that "it did not make her sick". There appears to be no doubt from Mrs. Miller's own testimony that "she customarily disciplined her children by having them stand while touching their toes". The District Court found, however, that she had never been reprimanded for the disciplinary methods she employed.
Certainly, if the school authorities knew that she used this method of discipline they should have warned her to quit it and should have taken the appropriate action if she disregarded the warning. This Court has serious doubt, however, that the absence of a warning may excuse an act which the teacher knew, or should have known, was fundamentally wrong, including inexcusable humiliations or punishment which might be dangerous to the health of the child. In the absence of a warning, common decency would tell the teacher not to engage in practices of that kind, particularly when such might very well indicate a form of intolerable sadism. Stated another way, if conduct on the part of a teacher is unnecessarily harsh and harmful to the students, particularly to those of the age who were submitted to Mrs. Miller's jurisdiction, the best interest of the students should be weighed along with Mrs. Miller's rights to retain her un-tenured re-employment. We do not care to establish the precedent in this Circuit, as a matter of teacher employment, that mistreating children may be shielded by failure of superiors to intervene, although if they have knowledge of it they should do so.
We feel that the ends of justice would be better served by remanding Mrs. Miller's case to the District Court for a hearing. The extent to which this practice was followed and its effect mentally and physically upon those subjected to it may then be determined, including a finding of whether this practice demonstrated a basic unfitness to be placed in charge of children for educational purposes.