CHARLES CLARK, Circuit Judge:
In this appeal from an interim order in an ongoing school desegregation controversy, we review a judgment of the district court that denied in part the plaintiff-intervenor's motion and amended motion for further relief from the school system's employment practices and several of its individual employment decisions. We affirm in part and, in part, vacate and remand.
On January 22, 1970, a three-judge district court entered an order requiring the desegregation of the Washington County, Alabama, public school system. This order provided, in relevant part, that "[s]taff members who work directly with school children and professional staff who work on the administrative level will be hired, assigned, promoted, paid, demoted and dismissed without regard to race or color."
In September 1976 and November 1977, the plaintiff-intervenor, National Education Association, Inc. [NEA], filed a motion and an amended motion for further relief, contending that the policies and practices of the Washington County Board of Education [Board] with respect to the appointment of principals, the hiring and assignment of teachers and teachers' aides, the appointment and assignment of athletic coaches and the selection of the Board's central office staff violated the fourteenth amendment and failed to comply with the terminal order of desegregation. Additionally, the NEA advanced individual claims of employment discrimination on behalf of six blacks who either were terminated from or not appointed to various positions in the Washington County public school system. After a two-day hearing at which the parties presented both oral testimony and documentary evidence, the district court, on August 6, 1978, issued an opinion and entered a judgment that granted in part and denied in part the NEA's motions for further relief.
On appeal, the NEA argues that the district court erred by failing to require the Board to affirmatively recruit and employ qualified blacks for the athletic coaching and central office staffs. It also contends the district court erred by failing to grant relief on the individual claims of employment discrimination brought on behalf of Warren Roberts, Cleophus Stephens, and Vera Breech.
I. Coaching and Central Office Staffs
The plaintiff-intervenor introduced evidence demonstrating that all fourteen of the head athletic coaches and sixteen of the eighteen assistant athletic coaches hired by the Board between the school years 1970-71 and 1976-77 were white. It also introduced evidence showing that in 1970 whites held all four positions on the Board's central office staff and that the Board filled each vacancy occurring since 1970 with a white applicant. The NEA argues that, based on this statistical proof, the district court should have entered an order requiring the Board to affirmatively recruit and employ qualified black applicants for the athletic coaching and central office staffs until the racial composition of these staffs approximates that of the student population in the public school system.
The internal affairs of a local school system should be administered by its elected or appointed authorities, not by federal courts. See Megill v. Board of Regents, 541 F.2d 1073, 1077 (5th Cir. 1976); Blunt v. Marion County School Board, 515 F.2d 951, 956 (5th Cir. 1975). See generally Callahan v. Price, 505 F.2d 83, 88 (5th Cir. 1974), cert. denied, 423 U.S. 927, 96 S.Ct. 273, 46 L.Ed.2d 254 (1975); Lee v. Macon County Board of Education, 490 F.2d 458, 460 (5th Cir. 1974); Ferguson v. Thomas, 430 F.2d 852, 858 (5th Cir. 1970). However, where a local school authority discriminates unconstitutionally against an individual or a class of individuals, it becomes the court's duty to fashion appropriate relief.
Proof of an immediate past history of racial discrimination alone can be sufficient to shift to the local board of education the burden of justifying its employment decisions by clear and convincing evidence. See Davis v. Board of School Commissioners, 600 F.2d 470, 473 (5th Cir. 1979); Hereford v. Huntsville Board of Education, 574 F.2d 268, 270 (5th Cir. 1978); Barnes v. Jones County School District, 544 F.2d 804, 807 (5th Cir. 1977); Roper v. Effingham County Board of Education, 528 F.2d 1024, 1025 (5th Cir. 1976). Even where, as here, the system has been found now to be desegregated and unified, see note 1, supra, such history remains relevant evidence. A showing of discriminatory purpose is required to prove a prima facie case of discrimination under 42 U.S.C. §§ 1981 and 1983. See Village of Arlington Heights v. Metropolitan
The statistical evidence presented by the NEA, when considered in light of the historical background of this litigation, proved a prima facie case of purposeful discrimination on the basis of race that, if unrebutted, would have supported a district court's grant of the requested relief. However, additional evidence presented at the district court hearing rebutted the prima facie case of employment discrimination and demonstrated conclusively that the lack of blacks hired since 1970 for positions on both the athletic coaching and the central office staffs resulted not from purposeful discrimination but solely from a lack of black applicants.
John S. Wood, the Superintendent of Education for Washington County, Alabama, testified that the Board in 1978 received the first application from a black for a head coaching position since 1970. The Board appointed the applicant, David Davis, to be head coach at McIntosh High School for the 1978-79 school year. Wood's testimony additionally disclosed the misleading nature of the statistical evidence presented by the NEA with respect to the athletic coaching staff. By focusing solely on those individuals hired since 1970 specifically as head or assistant athletic coaches, the statistical proof failed to reflect the true racial composition of the coaching staff. The evidence presented to the district court showed that in 1978 the staff contained a significant number of blacks who either were hired prior to 1970 or who, although hired for specific positions other than head or assistant coach, served as and received supplemental remuneration reserved for athletic coaches. Superintendent Wood testified that it was not until May 1978 when the Board received the first application from a black for a position on the central office staff. In the instant case, the district court properly declined to order the affirmative relief requested by the NEA because the plaintiff-intervenor failed to carry its burden of proving the requisite unconstitutional discrimination.
The district court correctly observed that the evidence fails to disclose "whether the lack of black applications resulted from a lack of qualified blacks in the area, or from a policy or practice on the Board's part in not advertising its openings to the general public." 456 F.Supp. at 1187. Concerned by the lack of black applicants for positions on these staffs, the district court noted that it would "insist that the Board adopt an appropriate advertisement policy to ensure that the most qualified candidates will apply" for positions in the Washington County public school system. The district court's opinion, however, stopped short of expressly requiring the Board to implement a policy of advertising employment opportunities to the general public.
II. Individual Claims
The NEA advanced individual claims of employment discrimination on behalf of
A. Roberts and Stephens
The district court rejected the individual claims of employment discrimination brought on behalf of Roberts and Stephens because the NEA failed to prove that, based on objective standards, they were the most qualified applicants for the position.
In this circuit, the principles governing an individual's right to back pay and injunctive relief in cases of class-based employment discrimination brought under 42 U.S.C. §§ 1981 and 1983 are clear. Once purposeful discrimination against a class is proved, a presumption of an entitlement to back pay and individual injunctive relief arises with respect to the members of that class. The burden of proof then shifts to the employer to show by clear and convincing evidence that the individual member of the class seeking relief would not have been hired absent the discrimination. See Davis v. Board of School Commissioners, 600 F.2d at 474; McCormick v. Attala County Board of Education, 541 F.2d 1094, 1095 (5th Cir. 1976); Mims v. Wilson, 514 F.2d 106, 110 (5th Cir. 1975); Cooper v. Allen, 467 F.2d 836, 840 (5th Cir. 1972).
The NEA showed that, between the school years 1970-71 and 1977-78, six vacancies occurred for the position of high school principal and that, despite the existence of qualified black applicants, the Board appointed a white applicant to fill each of the six vacancies. Prior to the January 22, 1970, terminal order of desegregation, the Board operated a dual public school system consisting of thirteen schools. Eight of these schools were white and had white principals. The remaining five schools were black and had black principals. Since the order of desegregation, the Board has operated ten schools, five of which are designated as high schools. Four of these high schools, Millry, Fruitdale, Leroy, and Washington County, were white schools in the dual system. No black ever has served as principal at any of these schools. The remaining high school, McIntosh, formerly was a black school in the dual system. McIntosh operated with a black principal through the 1973-74 school year, at which time a white was appointed to that position. Since that appointment, all high school principalships in the Washington County public school system have been held by whites. This evidence, considered in light of the historical background of this litigation, proved that the Board purposefully discriminated against blacks in the appointment of high school principals.
The district court rejected the individual claim of employment discrimination advanced on behalf of Vera Breech. We affirm.
Vera Breech was not appointed to the position of special education coordinator when that position was created in 1975. The NEA, in presenting to the district court the individual claims of employment discrimination brought on behalf of Breech, Rubye Nelson, and Brenda Fancher, attempted to raise a presumption of individual relief based upon proof of purposeful class-based discrimination against blacks in the hiring of instructional personnel. The evidence presented to the district court, even when considered in light of the historical background of this litigation, failed to prove such discrimination.
The NEA presented evidence showing that the racial composition of the student population was approximately 62 percent white and 38 percent black throughout the eight-year period from the entry of the terminal order of desegregation to the trial of this action.
The judgment appealed from is affirmed in part and vacated in part and the action is remanded to the district court for further proceedings consistent with this opinion.
AFFIRMED in part, VACATED in part, and REMANDED.
In addition to rejecting the individual claims of employment discrimination brought on behalf of Roberts, Stephens, and Breech, the district court denied relief to George Holcombe, an applicant for the position of high school principal for the 1976-77 school year. Prior to the hearing before the district court in this action, George Holcombe was appointed to and accepted a position as middle school principal in the Washington County public school system. The NEA does not assert his claim of employment discrimination on appeal.
It is appropriate to note one other matter. If an employer is unable to prove by clear and convincing evidence that the individual member of the class seeking relief would not have been hired absent the discrimination, individual relief must be awarded unless special circumstances are present. See McCormick v. Attala County Bd. of Educ., 541 F.2d 1094, 1095 (5th Cir. 1976); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 253 (5th Cir. 1974). The record is devoid of evidence of special circumstances that would prevent relief in this action.
Racial Composition of Student Population
WHITE BLACKYEAR NUMBER PERCENTAGE NUMBER PERCENTAGE 1970-71 2808 61.8 1735 38.2 1971-72 2722 61.1 1733 38.9 1972-73 2694 61.4 1693 38.6 1973-74 2711 62.1 1652 37.9 1974-75 2616 61.6 1629 38.4 1975-76 2584 62.4 1554 37.6 August 1977 2532 62.2 1541 37.8 September 1978 2636 62.8 1563 37.2 Average 2662.9 61.9 1637.5 38.1
Hiring of Teachers*
SCHOOL* Includes teachers employed under Title I of the Elementary and Secondary Education Act of 1965.
WHITE BLACKYEAR NUMBER PERCENTAGE NUMBER PERCENTAGE 1970-71 29 78.4 8 21.6 1971-72 25 61.0 16 39.0 1972-73 24 64.9 13 35.1 1973-74 23 59.0 16 41.0 1974-75 19 86.4 3 13.6 1975-76 26 83.9 5 16.1 1976-77 28 68.3 13 31.7 1977-78 19 86.4 3 13.6 Average 23.9 71.5 9.6 28.5
Racial Composition of Teaching Staff*
SCHOOL* Includes teachers employed under Title I of the Elementary and Secondary Education Act of 1965.
WHITE BLACKYEAR NUMBER PERCENTAGE NUMBER PERCENTAGE 1970-71 132 68.0 62 32.0 1971-72 139 65.3 74 34.7 1972-73 133 61.6 83 38.4 1973-74 127 60.5 83 39.5 1974-75 131 63.0 77 37.0 1975-76 143 64.7 78 35.3 August 1977 155 66.5 78 33.5 September 1978 159 67.7 76 32.3 Average 139.9 64.7 76.4 35.3
Hiring of Title 1 Teachers' Aides
WHITE BLACK AMERICAN INDIANYEAR NUMBER PERCENTAGE NUMBER PERCENTAGE NUMBER PERCENTAGE 1970-71 6 60.0 3 30.0 1 10.0 1971-72 2 50.0 2 50.0 0 0.0 1972-73 1 50.0 1 50.0 0 0.0 1973-74 3 75.0 1 25.0 0 0.0 1974-75 1 100.0 0 0.0 0 0.0 Average 2.6 61.9 1.4 33.3 0.2 4.8
Racial Composition of Title 1 Teachers' Aides
WHITE BLACK AMERICAN INDIANYEAR NUMBER PERCENTAGE NUMBER PERCENTAGE NUMBER PERCENTAGE 1970-71 6 60.0 3 30.0 1 10.0 1971-72 6 54.5 4 36.4 1 9.1 1972-73 7 63.6 3 27.2 1 9.1 1973-74 9 81.8 1 9.1 1 9.1 1974-75 8 80.0 1 10.0 1 10.0 1975-76 8 80.0 1 10.0 1 10.0 Average 7.3 69.8 2.2 20.6 1 9.5