Morton v. Charles County Board of Education

FIELD, Circuit Judge:

This action was instituted in January of 1971 by eight black individuals alleging discriminatory conduct in the operation of the public school system of Charles County, Maryland. Six of the plaintiffs were adults who charged that they and the class of individuals which they purported to represent had been refused employment or promotion, or had been demoted or discharged by the defendants on grounds of race. The other two plaintiffs were infants who were students in the Charles County School System and alleged that they sued on behalf of themselves and as representa-, tives of a class consisting of all black students in the school system who were being deprived of their civil rights because the defendants had maintained racially identifiable faculties. The parties engaged in broad and exhaustive discovery procedures and on November 9, 1973, the court determined that the prerequisites to a class action had not been met by either the adult or infant plaintiffs. Thereafter, nine additional adults moved to intervene as plaintiffs, alleging that they had been the victims of racial discrimination on the part of the defendants.

The district court conducted a twelve-day trial and filed an opinion in which it engaged in a meticulous review of the evidence and made detailed findings of fact. The claims of discrimination of the fourteen adult plaintiffs 1 were carefully examined and with the exception of one claim were found to be without merit. In the case of Mrs. Elnora Pinkney the court found that the failure to appoint her as principal of an elementary school in 1969 was the result of racial discrimination. With respect to the claims of the student plaintiffs relative to the racial composition of faculties, the court found that the School Board had attained an appropriate faculty ratio as required by Nesbit v. Statesville City Board of Education, 418 F.2d 1040 (4 Cir. 1969), in all but five of its twenty-six schools.2 The court noted that in three of these five schools the shifting of one teacher would bring the school into conformance with the test suggested by the plaintiffs and that in all other schools the shifting of only two teachers would be necessary. The only school falling substantially below this test was the Vocational Educational Center which included a number of specialized faculty positions.

Based upon the findings in its opinion the court entered an order which (1) granted judgment in favor of the defendants with respect to the claims of all of the adult plaintiffs with the exception of Mrs. Pinkney; (2) declared that the ratio of black and white faculty members in each school should be not less than 75 per cent nor more than 125 per cent of the ratio of black teachers throughout the system;3 (3) granted judgment in favor of Mrs. Pinkney in the amount of $15,796, being the differ*873ence between the salary actually paid to her and the salary she would have received as principal of an elementary school for the years 1969 to 1974;4 and (4) awarded attorneys’ fees of $12,000 payable to counsel for Mrs. Pinkney and the infant plaintiffs.

Upon their appeal, the plaintiffs request that we reverse the judgment of the district court and direct that it take the following remedial measures. First, grant declaratory and injunctive relief prohibiting continuance of the hiring, promotion and demotion practices which plaintiffs allege have caused continued attrition in the percentage of black faculty members in the school system. Second, issue an injunction requiring the institution of affirmative hiring, promotion and demotion policies designed to restore the ratio of black principals and teachers to that which existed in the school system at the time desegregation was undertaken. Third, set aside the adverse findings made by the district court against the thirteen adult plaintiffs, and reconsider their claims by applying a presumption of racial discrimination and placing upon the defendants the burden of proving that discriminatory policies played no part in the rejection, non-promotion or demotion of each individual plaintiff. Fourth, award compensatory and other relief to all members of the class of unsuccessful black applicants for promotion and hiring in the Charles County School system since 1968.5

Primarily the plaintiffs contend that the district court failed to give the appropriate presumptive weight to the statistical evidence of racial discrimination in the Board’s employment practices. They point to the fact that whereas in 1966 — 67, the year prior to complete desegregation, 44.2 per cent of the teachers were black, the proportion of black teachers had declined to 30.4 per cent in 1969 — 70, and that in the same years the percentage of black principals had dropped from 37.5 per cent to 30.7 per cent. These statistics, the plaintiffs argue, call for the invocation of the principle set forth in Chambers v. Hendersonville City Board of Education, 364 F.2d 189, 192 (4 Cir. 1966), that “in the face of the long history of racial discrimination * * * the sudden disproportionate decimation in the ranks of Negro teachers raise[s] an inference of discrimination which thrust[s] upon the School Board the burden of justifying its conduct by clear and convincing evidence.” The district judge rejected this contention of the plaintiffs, and we agree with him that this is not a Chambers case. First of all, unlike Chambers where the school system resisted “the mandate of Brown until forced to do so by litigation,” Id. at 192, the Charles County Board had taken affirmative steps to desegregate its schools in the light of the evolving law and it is conceded that complete desegregation in the county had been voluntarily accomplished in 1967. Also, unlike Chambers, in the present case there was no sudden disproportionate decimation in the ranks of Negro teachers incident to the complete integration of the school system. On the contrary the district judge found that “there is no claim or evidence that any teacher or principal was discharged because of his or her race.” Common to Chambers and its progeny in this *874circuit6 was the fact that in each case a substantial number of black teachers had. been discharged when the schools were integrated, and the significance of this factor was recognized by the Court in Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 209, 93 S.Ct. 2686, 2698, 37 L.Ed.2d 548 (1973), where the Court stated:

“Again, in a school system with a history of segregation, the discharge of a disproportionately large number of Negro teachers incident to desegregation ‘thrust[s] upon the School Board the burden of justifying its conduct by clear and convincing evidence.’ ” (Emphasis added).

In addition to the foregoing, the record clearly demonstrates that the statistical changes upon which the plaintiffs rely so heavily were not the result of any discriminatory hiring policies of the Board, but rather were the result of dramatic demographic changes which occurred in Charles County in the 1960— 1970 decade. Charles County is a small county in southern Maryland which is experiencing rapid growth as the suburbs of the District of Columbia expand. Between 1960 and 1970 the population increased 46.4 per cent from 32,500 to 47,700. In that same period the number of students in public schools increased from 7,400 in 1960 to 13,000 in 1970, and had further increased to 16,300 in 1973. This rapid growth in both population and school enrollment consisted primarily of an increase in white population and white pupils. While in 1970 the black population of the county had slightly increased in absolute numbers, the percentage of black population had declined from 34 per cent in 1960 to 29 per cent in 1970; and the percentage of blacks in the school population had declined from 45.7 per cent in 1960 to 39.9 per cent in 1970 and dropped even lower to 34 per cent in 1973.

During this same period the number of black principals in the school system increased from six to eight and in 1973 stood at 30.7 per cent while the number of black vice-principals increased from four to six and reached about 45 per cent. The number of black administrators in the central office of the school system increased from four to ten, being 22 per cent of that job classification. The number of black teachers had increased from 198 to 207, although the percentage decreased to 27 per cent. The district court carefully analyzed the school statistics in the light of the percentage decrease of blacks in the general population as well as the school system, and also took into consideration the statistical data bearing upon the percentage of blacks in the relevant employment pool from which the School Board, of necessity, drew a substantial number of its employees. Upon consideration of all of the relevant statistical data and underlying evidence bearing thereon, the district judge concluded that the evidence did not disclose a pattern of racial discrimination which required or justified the application of the so-called Chambers rule. The record solidly supports the findings of the district court and, assuredly, they are not clearly erroneous.7 Williams v. Albemarle City Board of Education, 485 F.2d 232 (4 Cir. *8751973); Bridgeport Guard., Inc. v. Members of Bridgeport C.S. Com’m., 482 F.2d 1333 (2 Cir. 1973).

The proposal of the plaintiffs that the court direct the Board to institute an affirmative policy which will restore the ratio of black principals and teachers to that which existed in the system prior to desegregation of the schools would require the court to close its eyes to the changes which have taken place in Charles County during the past ten years. We are unaware of any constitutional principle which would require that the racial ratios which existed in the school system of the county in 1966-67 be rigidly maintained ad infinitum despite the changing character of the surrounding area. On the contrary, the inevitability of such changes was recognized by the Chief Justice in Swann v. Board of Education, 402 U.S. 1, 31-32, 91 S.Ct. 1267, 1284, 28 L.Ed.2d 554 (1971).

“It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.”

In our opinion the present case falls within this observation of the Chief Justice, and the record satisfies us that despite the changing population ratio the Board has taken reasonable • and affirmative steps to bring substantial numbers of qualified blacks into every facet of the school system.

Finally, a brief comment about the special committee report upon which the dissent appears to place considerable reliance. In the spring of 1969 a dispute arose over the selection of majorettes at La Plata High School and at the suggestion of the Board of Education and the NAACP a committee was appointed by the State Board of Education to make an investigation of a variety of complaints and report its recommendations to the Board. The committee was purely of an ad hoc nature and, as noted by the district judge, was not charged to apply either constitutional or statutory standards in its investigation. The committee’s investigation was not conducted as an adversary proceeding nor were the individuals interviewed by it subject to cross-examination. The State Board discussed the committee report with representatives of the Charles County school system and the NAACP and thereafter adopted some of the committee’s recommendations, modified some and refused to adopt others. Again, as noted by the district judge, the action of the State Board on the report did not purport to be based upon either constitutional or statutory principles.8

While the dissent does not go so far as to accept the plaintiffs’ contention that the district court was bound by the committee report and had a responsibility to enforce its findings as well as the recommendations of the State Board, it nevertheless relies upon the report as demonstrating “a history of segregation” under the Keyes formula. This, we think, accords the report an unwarranted role in this litigation. While the district *876judge permitted the committee report to be introduced into evidence, he ultimately reached the conclusion that its relevant findings lacked support and made his independent findings based on the evidence before him. In doing so he acted well within the permissible area of his discretion. Even if the report were conceded some official gloss its admissibility would be highly questionable, see Moss v. Lane Company, Incorporated, 471 F.2d 853 (4 Cir. 1973); Cox v. Babcock and Wilcox Company, 471 F.2d 13 (4 Cir. 1972), and in any event, it “is in no sense binding on the district court and is to be given no more weight than any other testimony given at trial.” Smith v. Universal Services, Inc., 454 F.2d 154, 157 (5 Cir. 1972). The fallacy of placing any operative reliance on the report is more readily apparent if we reverse the circumstances. Had the state committee given carte blanche approval to the manner in which the Charles County schools were being operated, we doubt that anyone would seriously contend that such a report would constitute a defense to the plaintiffs’ law suit or that it would be entitled to any substantial evidentiary consideration on the issues.

In our opinion the district court granted full and appropriate relief and we affirm its judgment in all respects.9

Affirmed.

. After the institution of this suit one of the plaintiffs, Ortis J. Cobb, was permitted to withdraw as a party plaintiff on October 12, 1972.

. The plaintiffs suggested that the standard of Nesbit would be met where the ratio of black teachers to white teachers in each public school in the county was not less than 75 per cent nor more than 125 per cent of the ratio of black teachers to white throughout the entire system.

. On this issue the court accepted the standard suggested by the plaintiffs. See, n. 2, supra.

. The Board was further directed to compensate Mrs. Pinkney on the basis of a principal’s salary until her retirement and to make such additional contributions to the Maryland Teachers Retirement System on her behalf as would have been made had she held the position of principal since 1969.

. The plaintiffs contend that the alleged discriminatory practices injured all unsuccessful black applicants for positions in the Charles County school system and that the district court plainly erred in refusing to permit the plaintiffs to pursue their class action. They further suggest “that a special master could be appointed to receive the individual applications for relief,” with directions that the master apply the presumption of discrimination set out in “Third” above.

. See, Walston v. County School Board of Nansemond Cty., Va., 492 F.2d 919 (4 Cir. 1974); North Carolina Teachers Ass’n v. Asheboro City Bd. of Ed., 393 F.2d 736 (4 Cir. 1968).

. In Mayor v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974), the Court criticized the use of “simplistic percentage comparisons” and observed:

“We share the view expressed in the dissent that facts in a case like the instant one, ‘when seen through the eyes of judges familiar with the context in which they occurred, may have special significance that is lost on those with only the printed page before them.’ * * * That is one reason why we believe that the Court of Appeals, ‘with only the printed page before [it] . . .,’ erred in reversing the District Court. The judge most ‘familiar with the context in which [the facts] occurred . . . ’ was obviously the District Judge, since he heard and viewed the testimony and other evidence presented.” Id., at 620, n. 20, 94 S.Ct. at 1334.

. It was conceded by the plaintiffs that none of them had seen fit to pursue the available Maryland statutory remedy by which a person aggrieved by actions of the county school administration may present a complaint to the School Board and, if dissatisfied with the action of the Board, appeal to the State Board of Education. Anno.Code of Md., Art. 77 § 59 (1969 Repl.Vol.)

. The cross-appeal of the Board of Education challenges the award of damages to Mrs. Pinkney, but we are not persuaded that the finding of the district court on her claim was clearly erroneous.