McFERREN v. COUNTY BOARD OF ED. OF FAYETTE CO., TENN.

EDWARDS, Circuit Judge.

Appellant school board appeals from an order entered in the United States District Court for the Western District of Tennessee, Western Division, requiring it to rehire 13 discharged school teachers with back pay.

In this case an all white school board in a Tennessee County with 75% black population was required by federal court order to unify its previously unconstitutionally separated black and white school systems. One of its responses was to discharge 22 teachers, 15 of them black and seven of them white. Only one of the white teachers discharged had more than two years service. Most of the 13 black teachers who filed this complaint had periods of service of many years (extending up to 35 years) with this same board.

Prior to the desegregation order, all except one of the discharged teachers had been used at all black schools. It apparently seemed obvious to the District Judge, as it does likewise to us, that appellant board had for many years considered these complainants good enough teachers to teach black students, but in the face of the desegregation order, suddenly determined that they were not good enough to teach white students. The District Judge held that in such circumstances the burden of proof to show nondiscrimination in these discharges fell upon the appellant board and that it had not carried that burden. Rolfe v. County Board of Education, 391 F.2d 77 (6th Cir. 1968). We agree.

After these discharges, approximately 40 teachers resigned from the Fayette County school system, and as a result, in the summer of 1970, the Board hired an additional 52 teachers. The overwhelming majority of the teachers hired were white. The Board did not rehire any of those who had been discharged.

In this case both sides agree that Rolfe v. County Board of Education, 391 F.2d 77 (6th Cir. 1968), states the controlling rule:

In a careful opinion after full hearing, the District Judge found that the school board did not employ definite objective standards in determining who should be discharged. He also held that "a nontenure teacher, who has long periods of service with the system acquires a protectible interest in his continued employment and his nonreelection must meet minimal standards of procedural due process," citing Lucas v. Chapman, 430 F.2d 945 (5th Cir. 1970), and Gouge v. Joint School Dist. No. 1, 310 F.Supp. 984 (W.D.Wis.1970).

We agree fully with the District Judge's conclusion that the standards employed by the school board were not "definite objective standards" equally applied to all other teachers in the school system. Under the standards employed no comparison at all was made on the basis of years of experience accomplished in black schools to the apparent complete satisfaction of the school board. The standards employed were basically whether or not the teacher had achieved tenure (as that term was newly interpreted) and whether or not there had been complaints. Many of the complaints relied on for discharge pertained to events of long past years which had obviously not been thought to require disciplinary action at the time.

Further, we approve the District Judge's view that a nontenure teacher with long years of service has a protectible interest in his employment, certainly against racially motivated discharge. The facts of this case distinguish it from Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), where this court held that a probationary teacher of one year's service did not have a due process right to a hearing and a statement of reasons for nonrehire. In Orr, however, the court clearly recognized that race discrimination was a constitutionally impermissible reason for failure to rehire even a one-year probationary employee. Orr v. Trinter, supra at 134. See also Sindermann v. Perry, 430 F.2d 939 (5th Cir. 1970), cert. granted, 403 U.S. 917, 91 S.Ct. 2226, 29 L.Ed.2d 694 (1971); Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966), cert. denied, 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed.2d 542 (1967). Cf. Jones v. Hopper, 410 F.2d 1323 (10th Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1111, 25 L.Ed.2d 399 (1970).

In our instant case plaintiffs had been employed for terms running up to 35 years and many of them had understood (as did the School Board) that they had tenure. In the year when this dispute arose, a new superintendent discovered that as to teachers of over three years' service who did not have degrees, 12 hours of college work within three years were required for "limited tenure" under state law. No attempt was made to notify the teachers affected of the effect as to them of this new interpretation and no provision at all was made for their being given an opportunity to fulfill the requirement.

This record falls far short of demonstrating equitable handling of the work force reduction problem resulting from the desegregation order.

For the reasons cited and those more fully set forth in the opinion of the District Judge, we agree with the District Judge that appellant School Board did not carry its burden of showing that these discharges were nondiscriminatory.

Another issue in this case is the portion of the District Judge's order requiring the School Board to pay back pay to the teachers found to have been illegally discharged. Appellant Board contends that his order deprived them of the right to a jury trial in relation to a money damage issue. The District Judge and the appellees rely upon NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), where the Supreme Court said in part that the Seventh Amendment "has no application to cases where recovery of money damages is an incident to equitable relief."

The same holding has been entered in the context of racial discharge cases by the Fourth and Fifth Circuits in Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966), and Harkless v. Sweeney Independent School District, 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971).

In this last case (a case like this involving discriminatory discharge of teachers) the Fifth Circuit discussed the Seventh Amendment issue:

In teacher discharge cases involving racial discrimination, this court has consistently allowed back pay incident to reinstatement orders. Hatton v. County Board of Education of Maury County, Tennessee, 422 F.2d 457 (6th Cir. 1970); Rolfe v. County Board of Education of Lincoln County, Tennessee, 391 F.2d 77 (6th Cir. 1968); Hill v. Franklin County Board of Education, 390 F.2d 583 (6th Cir. 1968).

In a suit against a labor union for reinstatement and damages, this court discussed and decided the Seventh Amendment jury trial issue in an opinion by Judge Shackleford Miller:

It seems obvious to us that the principal issues in this case are equitable and that the back pay issue is truly "an incident to equitable relief." NLRB v. Jones & Laughlin, supra, 301 U.S. at 48, 57 S.Ct. 615, 81 L.Ed. 893. On this ground the Supreme Court decisions relied upon by appellants are distinguishable. Cf. Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).

The judgment of the District Court is affirmed.

WEICK, Circuit Judge (dissenting).

In this case the County Board was required by a desegregation order of the District Court to maintain in the School System, as nearly as practicable a ratio of 60% Negro teachers to 40% white teachers. It is not claimed that this ratio was significantly altered at any time.

None of the 22 teachers who were not rehired for the school year 1970-71 had tenure under Tennessee law. T.C.A. § 49-1402 et seq. None had a statutory right to reemployment upon the expiration of his contract. Shannon v. Board of Educ., 199 Tenn. 250, 286 S.W.2d 571 (1955). None was recommended to the Board for rehiring by the Superintendent of Schools.

Of the 22 teachers who were not rehired, 15 or 68% were black, and 7 were white. Six of the fifteen blacks who were not rehired were given adverse recommendations by their black principals. Of the seven white teachers who were not rehired, four had been given adverse recommendations by their black principals. During 1969-70 the School Board employed 260 teachers, of whom 156 or 60% were black. 42% of the untenured teachers in the School System were black.

Only thirteen of the black teachers who were not rehired claimed racial discrimination. None of the white teachers, not rehired, made any such claim.

About forty teachers resigned during the summer of 1970, of whom 10% were black. Replacements were hired, 19% of whom were black.

In my opinion, there was no evidence of discrimination and none has been pointed out in the failure of the Board to rehire either black or white teachers.

The Court denied defendants' demand for a jury trial and held that the thirteen plaintiffs were entitled to recover damages in the amount that they would have earned had they been rehired, less what they could reasonably have earned in other suitable employment. The Court made no determination as to the specific amounts of damages, stating that he would determine them in a separate hearing. This part of the case is still pending in the District Court, and the equitable issues are pending here, with the result that we may have piecemeal appeals, which is certainly not contemplated by Rule 54(b), Fed.R.Civ.P.

The Court declined to hear proof offered by defendants as to the competency of the teachers who were not rehired. It held that the objective standards required in Rolfe v. County Bd. of Educ., 391 F.2d 77 (6th Cir. 1968), had not been followed, and hence proof of incompetency was not admissible. I respectfully disagree.

In my opinion, the District Court erred in excluding evidence relating to the competency of the teachers, not rehired. The Board of Education, in utilizing tax funds entrusted to it, had a duty to hire or rehire only competent persons to teach in the public school system. Rolfe may not be used to justify an order requiring the hiring of a teacher who may not be competent to teach.

In Rolfe, unlike the present case, the Board had violated the desegregation plan ordered by the District Court by assigning all Negro teachers to a particular high school and hiring fourteen new teachers, all of whom were white.

In Rolfe, no standards had been adopted. In the present case the standards adopted by the Board to be followed in determining whether to offer employment to nontenured teachers, were:

See also page 346a.

In my opinion, these standards were objective, within the meaning of Rolfe. There was substantial evidence that these standards were adhered to by the County Board in determining not to rehire the plaintiffs.

In its decree, the Court ordered that in determining which teachers should be rehired in the event of further faculty or staff reduction, the sole standards to be applied should be: 1) State certification; 2) College work; and 3) Appropriate credits for length of experience.

In my opinion, this was an unwarranted interference with the functions of the County Board and was error. A teacher could have all of these attributes and still be a person unfit for hiring as a teacher.

I also disagree with the holding of the District Court that a "non-tenure teacher who has long periods of service acquires a protectible interest in his continued employment and his non-re-election must need minimal standards of procedural due process." The Court relied on Lucas v. Chapman, 430 F.2d 945 (5th Cir. 1970), and Gouge v. Joint School Dist. No. 1, 310 F.Supp. 984 (W. D.Wis.1970).

In my opinion, these decisions are contrary to the weight of authority. It is well settled that no person has a constitutional right to public employment. Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971). Such employment is not protected under the due process clause of the Fourteenth Amendment. Freeman v. Gould Special School Dist., 405 F.2d 1153 (8th Cir.), cert. denied, 396 U.S. 843, 90 S.Ct. 61, 24 L.Ed.2d 93 (1969). See also Jones v. Hopper, 410 F.2d 1323 (10th Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1111, 25 L.Ed.2d 399 (1970); Charland v. Norge Div., Borg-Warner Corp., 407 F.2d 1062 (6th Cir.), cert. denied, 395 U.S. 927, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969); Parker v. Board of Educ., 348 F.2d 464 (4th Cir. 1965), cert. denied, 382 U.S. 1030, 86 S.Ct. 653, 15 L.Ed.2d 543 (1966). As to Federal Government employees, see Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Medoff v. Freeman, 362 F.2d 472 (1st Cir. 1966).

Lastly, the District Court erred in denying to the County Board a jury trial on the legal claim for damage. The majority opinion relies on NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966), and Harkless v. Sweeney Independent School Dist., 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971).

Smith and Harkless both were based on NLRB v. Jones & Laughlin. If Jones & Laughlin is inapplicable, then these decisions ought not to be followed.

The Seventh Amendment to the Constitution provides:

Jones & Laughlin was not a suit at common law, but was a special statutory NLRB proceeding. Hence, Amendment VII had no application to the NLRB proceeding. Although the National Labor Relations Board performs some quasi-judicial functions, it is not an Article III Court, nor any other kind of a Court.

The Supreme Court recognized this difference in Jones & Laughlin when it said:

The present action, although based on an alleged violation of a statute (§ 1983), is either a suit at common law or is in the nature of such a suit. It was filed in an Article III Court. It sought injunctive relief (reinstatement) and damages.

That legal as well as equitable claims are involved in such a case was held in Madison v. Wood, 410 F.2d 564 (6th Cir. 1969), where a Negro policeman filed an action under the Civil Rights Act seeking reinstatement to his position as sergeant and damages for loss of wages. When the statute of limitations was interposed as a defense he amended his complaint to seek only equitable relief. In that case we held:

National Union Elec. Co. v. Wilson, 434 F.2d 986 (6th Cir. 1970) was a cause of action for injunctive relief, for accounting and damages (compensatory and punitive), for conspiracy, and for return of salary payments. It involved unfair competition, and the alleged appropriation of customer lists, trade secrets, and orders. It was held that these averments in the complaint stated actions at law in which the defendants were entitled to trial by jury on the legal claims. We stated:

In Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), it was held:

The Court also held that "the legal claims involved in the action must be determined prior to any final court determination of respondents' equitable claims." Id. at 479, 82 S.Ct. at 901.

In the present case the Court determined the equitable claims first and has not yet heard the legal claims.

In Ross v. Bernhard, 396 U.S. 531 at 542, 90 S.Ct. 733 at 740, 24 L.Ed.2d 729 (1970), the Court said:

The plaintiffs, instead of filing a separate suit to vindicate their rights, filed only a motion to intervene (setting forth their claims for relief in said motion) in a pending school desegregation case in which a plan for desegregation had already been approved. In my judgment the District Court should have severed the motion and docketed it as a separate action. In a school desegregation case a District Court does not sit as a super Board of Education to supervise the daily operation of the public schools and determine all controversies which may arise in connection with the hiring of teachers. In any event, the use of this device by plaintiffs cannot operate to deprive the defendants of their constitutional right to a jury trial. Ross v. Bernhard, supra, fn. 15, at 541, 90 S.Ct. 733, 24 L.Ed.2d 729.

I would reverse the judgment of the District Court.