(dissenting).
Notwithstanding the thought and force evinced in the majority opinion, I cannot accept its conclusions. I think (1) they are extrajudicial, factual decisions on teacher selection, an administrative matter solely and wholly for determination by the school authorities; and (2) the conclusions allow the claimants to prevail on the basis of Constitutional rights but of which they have not in fact been deprived.
I. The Court holds that the passing of worthless checks by a student counselor-teacher, Newberry, not only to the Board of Education but as well to citizens in the community, did not justify the Board in refusing him re-employment. The holding rests on the premise that this was not the reason stated by the Board. That it was one of the reasons is incontestable in the record. In any event, aware of the offense, it is not too much to presume that the Board believed a bad-cheek man was not a proper person to counsel children.
The majority refers to his principal’s recommendation that he be retained. But the Board rejected the recommendation. Baldly, this teacher’s conduct was just not honest. The number and repeated instances refute inadvertence as an excuse. I cannot understand the majority’s unwillingness to appraise the misbehavior for what it was — a series of fraudulent pretenses. The Court’s reliance on an opinion of an “expert” for support of its conclusion recognizes its weakness. I had not thought falsity eraseable through expertise. Now the Board’s leniency in not warning or firing him at once is cited to prove the Board used the admitted offense as a pretext. *751The lesson to the Board today is this: fire immediately; you give a teacher another chance at your own risk.
This single incident is typical of what I find to be the primary, permeating defect of the majority opinion: the Court’s repeated overriding of the school authorities’ judgment upon teacher selection despite reasonable grounds stated for each determination, which in turn are shown to be based on an intimate knowledge of the teachers. This usurpation is compounded when it is recalled that, in addition, the District Judge has in every instance also previously examined the facts and found the actions of the school authorities not without merit. These findings are not, and cannot be, declared clearly erroneous so as to warrant their rejection under F.R.Civ.P. 52(a). There is no Constitutional mandate for overturning administrative resolutions because of disagreement with them.
In this intrusion upon the school officials’ determinations in the choice of the most competent teachers, it is notable that the Court does not dispute or even doubt that the best qualified teachers have been picked. Nor can even the plaintiff truthfully say that the selected teachers do not have qualifications at least equal to the claimants’. The majority of the Court finds no fault in the Board’s mode of evaluation or appraisal of teachers. The plaintiff’s attack is mounted, and the Court’s decision is put, exclusively on the accusation that the Board’s culling of those who were not to remain violated the Equal Protection and Due Process Clauses.
Before reviewing this charge, it should be noticed that four of the nine claimants are found by the Court to have no individual grievance whatsoever — a rocking impeachment of the suit’s good faith. In the remainder of the instances the following recapitulation of the Court’s overthrow of the Board’s decisions will conclusively reveal the Court’s substitution of its own judgment for the Board’s conclusions. Here is a condensed recount of the facts about each of the nine:
(a) Gaines Price. He was not re-employed because it appeared to the Board, on comparison that the qualifications of the new teachers exceeded his. Notwithstanding, the Court awards him damages for the defendant’s failure to keep him, and re-employment is now ordered to be offered to him.
(b) Jackie Kilgore. He was not reemployed because he had accepted employment elsewhere before receiving notice that he would not be retained. Nevertheless, a claim was asserted in the suit for him as one injured by the failure of the Board to re-employ him.
(c) Pearline Palmer. She was asked if she would be interested in re-employment notwithstanding prior notice to the contrary, but she replied that she did not care to be re-employed. Still the suit avers she has been injured by the Board.
(d) Sarah Peterson. She was a business education teacher. She was considered only of “average or less” ability, with two years experience, and was not chosen in the place of other teachers who were equally qualified, one of whom had 15 years experience. No new teacher was hired in business administration, so she was not ousted by a replacement. Nevertheless, the trial judge is ordered to consider an award of damages to her if a replacement was later hired.
(e) Louis Newberry. He is the worthless-check writer. The Board dropped him. Yet, the Court orders him reinstated and awards him damages for his non-employment. The opinion refers to the Superintendent’s characterization of the check passing only as an “annoying habit”, as if it were a mere peccadillo. Only a glance at the Superintendent’s testimony is needed to refute this implication. Actually, he was endeavoring to save Newberry’s reputation by “playing down” the misconduct. Here again New-berry abuses the consideration given him.
(f) Blondie Segers. She was a music teacher and was not re-employed because the other music teachers far outclassed her qualifications. No new music teacher was put in her place. Notwithstanding, the Board is ordered to offer her a *752preference for re-employment, and the District Court is directed to ascertain whether she is entitled to damages if a replacement was later hired.
(g) Marietta, W. Foster. She had poor ratings for the previous two years from the State supervisor, and the City Superintendent states that the system “couldn’t have kept Mrs. Foster under any circumstances”. Nevertheless her claim was prosecuted in this case as one injured through nonre-employment.
(h) Janie A. Brooks. A first grade teacher, her resignation had been requested at the instance of the Director of Elementary Education. Here again, a claim was advanced for damages for her nonre-employment.
(i) Charles Holly. He was an industrial arts teacher. If his nonre-employment was unjustified in May 1965 when he was notified of it, this was corrected in June when he was offered the position hut did, not accept. Still, the Court now awards him damages for his nonre-em-ployment.
II. To repeat, the unretained teachers have been declared by the Court to have been denied equal protection of the laws and due process because of the manner of their selection. The alleged deprivation consists of this: they were considered for re-employment only as vacancies arose, and even then their qualifications were compared with those of new applicants, while other teachers in the system were generally rehired each year and not required to meet this test.
The District Judge had found — on the basis of specific and repeated instances in the testimony — that these factual premises are just not true — that the old teachers also were actually compared with the new.
The District Judge’s finding reads:
“17. Each teacher not offered employment for the school year 1965-66 was compared with all other teachers in his or her area of certification— including those with previous service in the defendant’s school system and those new to the system.” (Accent added.)
In a discussion of the equal protection claim, he continued:
“As stated in the Court’s Findings of Fact, the displaced Negro teachers were not treated as new applicants, considered only for vacancies existing in the system, but were considered for positions for which they were qualified and compared with white and Negro teachers who had during the preceding year been the occupants of those positions and signified a desire to be re-employed.” (Accent added.)
Indeed, the majority, too, actually so finds, saying the “qualifications of the faculty members, no longer needed * * * were compared within the area of their certification to the qualifications of the other faculty members in the same area of certification within the entire system”. The District Court also found that in the end “the teachers employed * * * possessed qualifications superior to those not employed”.
Furthermore, even assuming that due process and equal protection demanded that the unretained teachers be considered for re-employment not only to fill vacancies, but for presently occupied positions along with all of the other similarly classified teachers in the system, and assuming too that the previous teachers were not required to be compared with the new applicants, as were the present complainants, the last-named were not deprived of reinstatement or otherwise hurt as a result of the violation of any Constitutional mandate. Except for Holly — whose injury was immediately corrected — there was no causal connection between the alleged Constitutional breaches and their failure of rehiring. They lost out for an entirely different reason- — a want of requisite qualifications.
The final tally revealed that the un-re-employed teachers’ qualifications did not measure up to those of either the older teachers or of the new. If the un-retained teachers rated below both of *753these classes, how were they robbed of any Constitutional right? They were rejected solely because of their own deficiencies ; they could not match the old or new teachers in competency. The Constitution hardly makes up the difference for them.
Here the District Judge has tediously, thoroughly and comprehensively looked into each individual complaint as well as the alleged class grievance. He has related what he saw; he has said why in fact and in law there was no injustice, deliberate or inadvertent. There is no justification whatsoever for overruling his decision.
The Court’s opinion today seems to me to be occupied with Constitutional principles in the abstract. Certainly they are not controvertible; they just have no predicate here.
The District Court should be affirmed.
BOREMAN, Circuit Judge, authorizes me to state that he joins in this opinion.