(dissenting):
I agree with my brothers that there is some evidence in the record tending to support the ultimate finding of the district court that Mary Jones was discharged because of incompetence. I also agree that we are bound by such a finding on appeal unless it is clearly erroneous. The point of disagreement is that I believe, and they do not, that in determining whether the finding below is clearly erroneous we must necessarily consider (a) the peculiar burden of proof on the School Board, and (b) we must look at the whole record and not simply a part of it.
A. Burden of Proof
As the record clearly establishes, this is “a school system with a history of segregation,” and such a history, plus the discharge of a disproportionately large number of black teachers incident to desegregation thrusts upon the School Board the burden of justifying its conduct by clear and convincing evidence, Keyes v. School District, 413 U.S. 189, 209, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). Indeed, the Pitt County schools were not integrated until implementation of a court ordered plan in 1970-71.
The district court held, and the majority agrees, that it could detect no racial animus motivating the discharge of Mary Jones. Neither do I discern any such animus, and that I do not should not be surprising. It is the very difficulty of proving wrongful motivation and purpose that occasioned this circuit to *419reverse the ordinary burden of proof and put it upon those “having the power to produce the facts.” Chambers v. Board of Education, 364 F.2d 189, 192 (4th Cir. 1966). But mere reversal of the burden was thought to be an insufficient protection, and so the burden was not only turned around, but increased. The result amounts to a presumption of misconduct. If the evidence is evenly balanced, or even if a preponderance of it is on the side of School Board justification, the Board has failed to sustain its burden of justification by clear and convincing evidence. Keyes, supra. Moreover, it is “not enough, of course, that the school authorities rely upon some allegedly logical, racially neutral explanation for their actions. Their burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions.” Keyes, supra, 413 U.S. at 210, 93 S.Ct. at 2698 (emphasis added). Whether the ultimate finding below is “clearly erroneous” within the meaning of Rule 52(a) cannot be determined in a vacuum. In addition to looking at the record as a whole, to which I address myself below, an appellate court must also consider the applicable burden of proof in the district court, and if it is an unusual burden, we should “keep these criteria in mind when reviewing findings of a trial judge” .... Soccodato v. Dulles, 96 U.S.App.D.C. 337, 226 F.2d 243, 247 (1955), petition for rehearing en banc denied (1955). In Soccodato, the Court of Appeals for the District of Columbia reversed a finding below that the petitioner had expatriated himself and was no longer an American citizen on the ground that the finding was based on a bare preponderance of the evidence whereas in expatriation cases the government has always been held to a strict degree of proof, usually being required to prove its case by clear, unequivocal and convincing evidence. It is in that context that the court held that it must keep those “criteria in mind” when reviewing findings of a trial judge in expatriation cases, and the higher burden of proof was held to be decisive on the question of whether or not the finding below was clearly erroneous within the meaning of Rule 52(a).
In Esso Standard Oil Co. v. Sun Oil Co., 97 U.S.App.D.C. 154, 229 F.2d 37 (1956), cert. denied, 351 U.S. 973, 76 S.Ct. 1027, 100 L.Ed. 1491 (1956), the same circuit held that in determining whether the district court’s findings of fact in patent and trademark cases were “clearly erroneous” under Rule 52(a), the Court of Appeals must bear in mind that in patent cases a finding of fact by the Patent Office as to priority of invention or confusing similarity of marks must be accepted as controlling, unless the contrary is established by evidence “which in character and amount carries thorough conviction.” The court noted that a mere preponderance of the evidence is not sufficient with regard to invention and that the Patent Office finding must be accepted if it is “consistent with the evidence.” The findings of the district court were reversed as clearly erroneous, not because there was no evidence to support the finding, but because that evidence was not of sufficient quality and weight to produce “thorough conviction.” See Moore, Federal Practice & Procedure, 152.03[1] n. 14.
I believe these cases are sensibly decided, and that they strongly suggest that in a school teacher case involving a history of discrimination this court must keep in mind the criteria of “clear and convincing” evidence as we determine whether the finding below was clearly erroneous. To do otherwise is to abdicate appellate enforcement of the Keyes command.
B. The Record as a Whole
My brothers decline to “analyze the minutia of the various evaluations of the plaintiff’s teaching performance” because to do so would amount to “consider[ing] and deciding] the factual issues de novo.” Their refusal seems to me a failure to consider the record as a whole, something we are bound to do in every case, even when reviewing the expertise of administrative agencies. Universal Camera Corp. v. NLRB, 340 U.S. *420474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Looking at all the evidence, as I think we must, discloses the failure of the Board to sustain its heavy burden.
These are the salient facts, and they are, as I read the record, beyond dispute:
1. For three years since 1970-71 white teachers have been hired at a 6-1 ratio over blacks, and separation of teachers from the system has been 50-50 black and white, resulting in a disproportionate reduction in the black complement of teachers.
2. As long as Mary Jones taught at an all-black school there was no suggestion from anyone that she was incompetent.
3. When the court-ordered plan for integration was put into effect in 1970, Mary Jones was assigned to a previously all-white school. She also was not assigned to continue teaching in the seventh and eighth grades (with interim assignments at the high school level), but was assigned to teach the fifth grade in Pactolus Elementary School. During that first year in a wholly different and new assignment, Mrs. Jones was observed in class at various times, as the majority opinion recites, by Principal Tripp and Supervisor James, both white, and was rated “weak” by both examiners.
4. The basis for discharge was Principal Tripp’s PPE1 rating Mary Jones weak in 11 out of 33 categories. The PPE was based upon TE’s2 prepared by Principal Tripp. It is conceptually impossible to accord the PPE greater weight than the underlying TE documentation upon which it rests. As shown in the composite chart in the Appendix, the TE’s indicate that Mary Jones received only five weak scores out of a total of 165 ratings. Simply scanning the chart gives the impression that half of the ratings are above average and the rest average, except for some ungraded ones and the five weak marks already mentioned. It does not seem to me that five weak marks out of a possible 165 ratings can be said to be a demonstration by clear and convincing evidence of incompetence. It is significant, I think, that my brothers do not undertake to say so, preferring to ignore these facts as minutia the consideration of which would constitute de novo review.
5. No one has ever even suggested that this teacher is not competent to teach the seventh grade, which she had done some five years at the black school. Not even Principal Tripp recommended discharge. Instead, he steadily maintained she was a good seventh or eighth grade teacher, but weak in the fifth grade.
6. The only documentary evidence in the record supporting a conclusion of incompetency is Supervisor James’ ratings, but there is nothing in the record to show that Superintendent Alford even received James’ report prior to his discharge letter. Moreover the Superintendent never referred to the James report but instead in his deposition said that he recommended nonretention “based on Mr. Tripp’s recommendation to me . . . .”
“The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, supra at 488, 71 S.Ct. at 464.
I therefore think my brothers err when they base decision upon the subjective testimony of the Superintendent, the Supervisor, and the Principal, and fail and refuse to examine the teacher evaluation forms that are reproduced as an appendix to this dissenting opinion.
It seems to me that the Board’s decision not to retain the plaintiff was largely subjective and wholly unsupported by the underlying documentation, and that the Board thus failed to sustain its heavy burden of adducing clear and convincing evidence of incompetence. I am convinced that the finding to the contrary is clearly erroneous and that a mistake has been committed.
*421APPENDIX
TE EVALUATIONS: Each column represents a separate report.
10/8/70 11/17/70 2/5/71 4/19/71 CATEGORY 4/23/71
A. Personal Qualities
1. Neatness and appropriateness of dress AA AA AA AA AA
2. Courtesy and tact A/AA AA AA AA AA
3. Self control and poise A/AA AA AA AA AA
4. Voice — warm and A W sincere AA NC1 AA
NC NC 5. Dependability AA AA AA
B. Classroom Environment
A W 1. Lighting, ventilation, heating AA AA AA
NA A/AA 2. Seating and other arrangements AA AA AA
NA A 3. Bulletin boards used, current, appropriate A A/AA A
NA 4. Student behavior satisfactory A/MI W
C. Teaching Characteristics
NC AA 1. Is prompt in attend- NC A anee and records A AA
A AA 2. Shows fairness, im- A A partiality, and patience in working with students A NC
3. Helps develop sound ? — A NC working habits A W
4. Provides for individ- ?-A NC ual differences A ?
5. Uses well-organized ?-A A plans A/MI ?
6. Gives clear and A W adequate directions A/MI ?
7. Measures students’ NC NC progress effectively A NC
8. Sees that pupils NC NC consistently appraise their own work A/MI ?
9. Stimulates participa- N C A/MI NC tion in classroom discussions and activi'ties by all pupils A/MI
10. Maintains discipline ?-A A A NC2 founded on respect, not fear A
11. Provides opportuni- NC NC A W/A ties and materials for creative work
*422CATEGORY 10/8/70 11/17/70 2/5/71 4/19/71 4/23/71
12. Uses a well-balanced variety of effective teaching techniques (e.g., project and unit work, demonstrations, audio-visual aids, bulletin and chalkboards, exhibit cases, field trips, and homework) NC A A A NC
13. Has thorough knowledge of subject matter W/A A NC A A
14. Uses the English language well (oral and written) AAA AA A
D. Professional Attitudes
1. Seeks ways of improving his ability and teaching effectiveness by professional study NC NC A NC NC
2. Has high standards of ethics in his dealings with the profession, the parents, and the pupils NC A A A/AA A/AA
3. Displays a willingness and enthusiasm to work for the overall good of the school NC NC A A/AA A
4. Accepts directions and supervision NC A A A/AA A
SYMBOLS:
W: Weak; A: Average; AA: Above Average. The TE’s had a fourth category, “Outstanding”. Plaintiff received no marks in that category.
W/A or A/AA: Indicates that the checkmark on the TE was placed on the line separating the columns.
? — A: A question mark instead of a check was placed in the “Average” column.
?: A question mark was placed outside of all columns, to the immediate right of the “category”.
A/MI: Check in the “Average” column with the notation “Much Improved”.
NC: Category not checked.
NA: Category did not appear on form used for 10/8/70 TE. That TE form, in addition to the categories shown, had several more categories which were dropped when the TE forms were apparently revised. The differences between the 10/8/70 TE form and the revised form used in the latter four evaluations are not material, and I have ignored them for ease of discussion.
*423 Tripp’s Comments on the TE’s
10/8/70: In “Areas in Which Teacher Needs Help,” Tripp wrote
1. Glare on board, a lot of moving about by students.
2. Room noisy, each child writing a sentence on the board.
3. Wondering about general control. 11/17/70: In “Comments”:
Directions for homework inadequate. And class instruction on math very weak. . . . Discipline has improved considerably, am wondering about prepreparation [sic],
2/5/71: “Comments”:
Classroom much improved in all circumstances.
4/19/71: “Comments”:
1. Amount of preparation — ?
2. Discipline has improve[d] some but still weak.
3. Pre-instruction — ?
Plaintiff wrote on the bottom of the TE: “I was sick today.”
4/23/71: “Comments”:
It looks to me as if the students almost run the classroom instead of the teacher. I question the organization, preparation and method of presentation.
On April 26, 1971, Tripp and the plaintiff had a conference, the substance of which was recorded by Tripp, and signed by him, on the back of the 4/23/71 TE:
Mrs. Jones and I had a long talk this afternoon. I told her that I did not reconsider her employment at Pactolus next year. In our discussion she brought out she had always been a 6, 7, and 8 grade teacher and that this was her 2nd attempt at the 5th grade level. She also brought out that some of the white parents did not want a black teacher to discipline their child and that they talk about going to court, etc. Mrs. Jones asked me about a recommendation and I told her I would give her one. Mrs. Jones told me she would not be back Tuesday and Wednesday. I told Mrs. Jones that I thought that she should go back to the 7 or 8 grade classroom. Nor did I doubt for a moment that she wasn’t a good 7 or 8 grade teacher. Mrs. Jones thinks that I haven’t been fair in my judgment. I think I have. There is bound to be some pre-planning, but the carry over is what I can’t see. This is why I question.
. PPE means “Principal’s Professional Evaluation.”
. TE means “Teacher's Evaluation." Principal Tripp recorded his evaluations on TE’s, then his final evaluation on a PPE form.
. While this category was not checked, Tripp had crossed out the words “Warm and and written “Very Low” next to the remaining word “Voice”. Sincere”
. No check, but Tripp wrote in the words “No Fear Here” outside of the columns.