J. SPENCER BELL, Circuit Judge:
The plaintiffs, Negro school teachers and their professional association, brought this class action seeking an injunction against the racially discriminatory policies and practices of the School Board of the City of Hendersonville.
Prior to the school year 1964-1965 the school system of Hendersonville consisted of three "white" and one consolidated Negro schools. In that year some pupil desegregation occurred on a freedom of choice basis as the result of litigation by the Negroes, but faculties remained rigidly segregated. There were approximately 81 white teachers employed at the three white schools and 24 Negro teachers at the consolidated Negro school. At the end of this school year the Negro enrollment dropped from 498 to 281 because 217 Negro students who had attended the consolidated Negro school from adjoining counties were by court order integrated into their respective county schools. For the school year 1965-1966, the Board abandoned its freedom of choice plan and integrated the remaining Negro pupils into the Hendersonville system on a single geographical zone basis. For this year the number of teacher jobs in the system was reduced by five. Of the twenty-four Negro teachers in the system only eight were offered re-employment for the year 1965-1966, although every white teacher who indicated the desire was re-employed together with 14 new white teachers, all of whom were without previous experience. In May of 1965, before he knew how many vacancies would exist for the next year, the superintendent advised the Negro teachers which ones would be retained. Acting on the assumption that their jobs had gone out of existence because of the withdrawal of the 217 Negro pupils, he recommended that the School Board retain only the number of seven Negro teachers which was the approximate "pro rata" allotment based upon the number of the remaining Negro pupils under the North Carolina teacher-pupil ratio. On cross-examination of the superintendent, the School Board's attorney brought out that he and the superintendent had discussed the problem and concluded that the Negro pupils should have "adequate representation at the teacher level." In its answer the School Board unequivocally disclosed its view of the matter by stating that the Negro teachers had "lost their jobs as a result of the social progress of integration."
In its opinion, the district court, after reciting the above facts, asked itself the question whether this "startling decimation of Negro teachers" — from 24 to 8 — raises such an inference of racial discrimination as to place upon the defendants the burden of proof to the contrary. After concluding that no inference of
The school superintendent testified that he made the effective decision of all employment contracts; that he considered the principals' reports, but acted upon his own "personal preference" based upon the principals' reports, since he did not have the opportunity for firsthand observation. The report submitted by the principal of the Negro school was the only report submitted in writing. It was extremely elaborate and meticulous, listing, with respect to each teacher, such qualifications as: personality, philosophy, reputation, general appearance, physical defects, attitude, speech, optimism, love for children, age group in which interested, whether the principal wanted the teacher in his school, sense of humor, ability to discipline children, reaction of pupils and parents to teacher, and the principal's general appraisal of the teacher. On the other hand, the white principals' reports were oral, they could not remember details with respect to individual teachers, indeed one testified that he was not required to appraise his teachers but had done so voluntarily, and none testified that their reports attempted a comparative rating of their teachers. In short the Negro principals' report clearly reflected the knowledge that the number of Negro teachers was to be drastically reduced; consequently his teachers were graded comparatively while those of the white principals were used only to eliminate those teachers who, in the opinion of the principal or the superintendent, fell below a minimum standard. The informal oral reports made by the white principal furnished no basis whatsoever for any objective rating of their teachers either within each school or within the system or with new applicants. While the superintendent contended that his decisions were not adversely influenced by the far more detailed and critical report of the Negro principal, he did not hesitate to use the adverse aspects of that report to justify his decisions in his testimony before the court. Thus he employed some Negroes because of a favorable recommendation by the principal but refused to employ others who had received equally favorable recommendations. Low N.T.E. scores were offered to justify failure to hire some teachers with years of experience although many teachers, both white and Negro, had never been required to take the tests. Seniority was of no help. In the case of one teacher with 39 years experience, her age was cited as a reason for refusal to hire, notwithstanding the fact that 9 white teachers with from 35 to 41 years of experience were retained. In a number of cases the Negro teacher's qualifications were compared unfavorably in one aspect or another with those of a new teacher who was hired to fill the vacancy, although no white teacher who desired to remain was required to pass this test. Thus, in the case of one Negro teacher the defendants made no attempt to show that she was other than a very good and competent teacher; the record evidenced no objective reason to support the failure to reemploy her, but the superintendent had
Patent upon the face of this record is the erroneous premise that when the 217 Negro pupils departed and the all Negro consolidated school was abolished, the Negro teachers lost their jobs and that they, therefore, stood in the position of new applicants. The Board's conduct involved four errors of law. First, the mandate of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), forbids the consideration of race in faculty selection just as it forbids it in pupil placement. See Wheeler v. Durham City Board of Education, 346 F.2d 768, 773 (4 Cir. 1965). Thus the reduction in the number of Negro pupils did not justify a corresponding reduction in the number of Negro teachers. Franklin v. County School Board of Giles County, 360 F.2d 325 (4 Cir. 1966). Second, the Negro school teachers were public employees who could not be discriminated against on account of their race with respect to their retention in the system. Johnson v. Branch, 364 F.2d 177 (4 Cir. 1966), and cases therein cited, wherein the court discussed the North Carolina law respecting teacher contracts and the right of renewal. White teachers who met the minimum standards and desired to retain their jobs were not required to stand comparison with new applicants or with other teachers in the system. Consequently the Negro teachers who desired to remain should not have been put to such a test. In Franklin v. County School Board of Giles County, 242 F.Supp. 371 (W.D.Va. 1965), reversed as to remedy, 360 F.2d 325 (4 Cir. 1966), which involved the closing of a Negro school and the subsequent failure to re-employ the Negro teachers under circumstances very similar to this case, the court said:
Finally, the test itself was too subjective
The plaintiffs as a class are entitled to an order requiring the Board to set up definite objective standards for the employment and retention of teachers and to apply them to all teachers alike in a manner compatible with the requirements of the Due Process and Equal Protection Clauses of the Constitution. All of the plaintiffs who desire to teach in the Hendersonville School system and who can meet the minimum standards of the Board are entitled to an order requiring their re-employment for the 1966-1967 school year
Reversed and remanded.
ALBERT V. BRYAN, Circuit Judge (dissenting):
The legal principles stated in the majority opinion may be accepted without agreement with its conclusion. The District Court evinced complete awareness of them, and entire adherence, I think. Casting upon the school authorities the burden to exonerate themselves of the imputation of racial discrimination, the Court scrupulously examined the circumstances in the case of each Negro teacher who was not re-hired. This was not merely a general survey but, rather, a careful and conscientious canvass of the reasons in each individual instance for not retaining the teacher. The majority opinion, however, sweepingly applies general principles to all released teachers and concludes, erroneously it seems to me, they were all denied their Constitutional rights.
For example, of the 16 Negro teachers not reemployed, 6 were not kept for personal or wholly objective reasons. One desired to retire; another did not wish to teach in an integrated school and declined to be considered for reemployment; another taught bricklaying only, and this class had been abolished for lack of students; another was refused because of objectionable personal habits, the nature of which the School Board was willing to reveal, but as plaintiffs' counsel could not express his consent to the admission of this testimony, the Court declined to receive it for fear of embarrassing him; still another was 56 years old, 5 feet 5½ inches in height and weighed 219 pounds, and her physical condition was considered disabling; and the 6th was not retained for medical reasons, on the statement of her personal physician, then also a member of the School Board.
This leaves 5 Negro teachers not continued in the schools. The record of every one of them was scrutinized by the District Judge, who made this finding:
Whatever Constitutional guidelines are recognized, the bald facts here plainly reveal that at least 15 of the 16 unretained teachers were not kept because of their own preference, their physical incapacity or their failure to meet minimum criteria. This is hardly a record of a racial judgment. General principles do not supplant realities; the Constitutional fundamentals stressed by the majority are here abstract and academic.
As the findings of the District Judge, upon his plenary re-examination of the school authorities' decisions, cannot be declared clearly erroneous, his decree should be affirmed.
I am authorized by Judge BOREMAN to state that he joins in this dissent.
The superintendent gave as justification for his failure to employ several of the plaintiffs — "personal preference."