Smith v. Concordia Parish School Board , 331 F. Supp. 330 ( 1971 )

331 F. Supp. 330 (1971)

Irma J. SMITH et al.
v.
CONCORDIA PARISH SCHOOL BOARD et al.
United States of America, Intervenor.

Civ. A. No. 11577.

United States District Court, W. D. Louisiana, Monroe Division.

August 18, 1971.

Stanley A. Halpin, Jr., New Orleans, La., for plaintiffs.

William C. Falkenheiner, Dist. Atty., Vidalia, La., for defendants.

John N. Mitchell, Atty. Gen. of United States, United States Department of Justice, Washington, D. C., Donald E. Walter, U. S. Atty., Western District of Louisiana, Shreveport, La., for the Government.

BEN C. DAWKINS, Jr., Chief Judge.

RULING

The Court carefully has considered the motion made for a preliminary injunction and temporary restraining order filed herein in behalf of Sammy Davis, Jr., Cleveland Watts, Eddie Coleman, Clarence Hymon, and Odeal Montgomery, which was presented to it during the late afternoon of August 16th, 1971.

Upon its receipt, we immediately contacted Honorable W. C. Falkenheiner, District Attorney for Concordia, and counsel for its School Board; and today have received a letter from Mr. Falkenheiner, enclosing a mass of data regarding these teachers, his letter and the original documents being attached hereto.^[1]

It appears that some of these teachers, pursuant to the Louisiana Teacher Tenure Law, LSA-R.S. 17:441 et seq., have had charges filed against them by the Superintendent of Schools, Ben L. Green, Jr., which clearly are not in the slightest manner connected with desegregation orders heretofore entered in this case, nor are they racially motivated, but, on the contrary, are purely for disciplinary or other apparently valid reasons concerning their conduct as teachers in the School System. Mr. Falkenheiner's letter, and its attachments, speak for themselves and there is no need for this Court to elaborate upon them.

Obviously, the procedure being followed is in strict accordance with LSA-R.S. 17:443, a photocopy thereof being attached hereto (only the portion marked by this Court in brackets being clearly unconstitutional).^[2] It even appears that there is one non-tenured white teacher recommended not to be re-employed by her black principal, but who is to be afforded a hearing as if she did possess such tenure. Another non-tenured teacher, Joyce Smith, likewise is being afforded a hearing, as provided in § 443.

Considering all of the circumstances disclosed by Mr. Falkenheiner's letter and its attachments which show: That desegregation or racial motives are in no way involved in connection with the action proposed to be taken with respect to the persons mentioned in the motion, or the others not mentioned therein; that they simply are charged for apparent good cause with misconduct or incompetence in performing their duties; that they are entitled to a full, fair hearing before the School Board (either openly or in closed session, according to their own choice) and will be granted such, with provision for counsel to be present to represent them; and that, if the Board's decision is adverse to any of them, they have a full, complete, and adequate remedy in the State Courts of Louisiana, as shown in the statute mentioned this Court should not and will not interfere with the orderly internal administrative processes of the School Board, which is entitled properly to manage its affairs in accordance with State law.

If we were to grant the relief prayed for in this motion, in every instance, in all school systems, not only in this District but nation-wide, where disciplinary or other action is necessitated by a teacher's conduct or by other valid circumstances such as are described in Mr. Falkenheiner's letter, this Court (and all United States District Courts where desegregation orders have been entered) literally would be flooded with similar motions, and attendant probably protracted hearings, exacerbating already overcrowded dockets, and making it virtually impossible for such Courts to perform their duties in matters in which federal law requires action by them. Obviously, neither the Supreme Court, nor Congress in adopting the Civil Rights Act of 1964, ever contemplated or intended such a result.

Moreover, although of no particular moment, since curative action could be taken by movants' counsel, it is noted that he totally has failed to comply with the mandatory requirement of Rule 65(b) (2), F.R.Civ.P., in that he has failed to certify "* * * to the court in writing the efforts, if any, which have been made to give the notice and reasons supporting his claim that notice should not be required."

For all of these reasons, we must decline to sign the proposed Temporary Restraining Order attached to the Motion; and relegate movants to the administrative and judicial procedures available to them under State law.

Appendix A

Appendix B

Ch. 2 TEACHERS AND EMPLOYEES R.S. 17:443

attendance probationary teachers should be dismissed and tenured teachers should be given preference if capable of performing services formerly performed by probationary teachers. Op. Atty.Gen.1942-44, p. 1519.

Where schools have been consolidated and overstaffing exists, a tenure teacher who is not dismissed but merely left temporarily without employment because of overstaffing could not force dismissal of probationary teacher during current school term, but at end of school term board must give preference to permanent teachers over probationary teachers in employing teachers for coming year. Op.Atty.Gen.1940-42, p. 3695.

21. Reinstatement

Where relatrix was not a teacher within the Teachers' Tenure Act, she was not entitled to be reinstated as teacher in parish school and to be paid compensation from time of omission of her name from list of teachers, even though she had not been dismissed or discharged in conformity with the act. State ex rel. Sibley v. Ascension Parish School Bd., 1953, 222 La. 923, 64 So. 2d 221.

Where probationary high school music teacher was discharged by parish school board upon written recommendation, accompanied by valid reasons therefor, of parish superintendent of schools and after due consideration by board of the reasons, this section was complied with and hence teacher was not entitled to reinstatement. State ex rel. Meyer v. Tangipahoa Parish School Bd., App.1945, 21 So. 2d 189.

§ 443. Removal of teachers; procedure; right to appeal

A permanent teacher shall not be removed from office except upon written and signed charges of wilful neglect of duty, or incompetency or dishonesty, or of being a member of or of contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the state of Louisiana,[or of advocating or in any manner performing any act toward bringing about integration of the races within the public school system or any public institution of higher learning of the state of Louisiana,]and then only if found guilty after a hearing by the school board of the parish or city, as the case may be, which hearing may be private or public, at the option of the teacher. At least fifteen days in advance of the date of the hearing, the school board shall furnish the teacher with a copy of the written charges. The teacher shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at the said hearing. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.

If a permanent teacher is found guilty by a school board, after due and legal hearing as provided herein, on charges of wilful neglect of duty, or of incompetency, or dishonesty, or of being a member of or of contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the state of Louisiana, or of advocating or in any manner performing any act toward bringing about integration of the races within the public school system of the state of Louisiana, and ordered removed from office, or disciplin

R.S. 17:443 EDUCATION Ch. 2

ed by the board, the teacher may, not more than one year from the date of the said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter. If the finding of the school board is reversed by the court and the teacher is ordered reinstated and restored to duty, the teacher shall be entitled to full pay for any loss of time or salary he or she may have sustained by reason of the action of the said school board. As amended Acts 1956, No. 249, § 1.

History and Source of Law

Source:

Acts 1922, No. 100, § 48.

Acts 1936, No. 58, § 1.

Acts 1944, No. 250, § 1.

Acts 1946, No. 297, § 1, pars. 4, 5.

See History and Source of Law under R.S. 17:441.

The 1956 amendment added as grounds for removal, membership in or contributing to certain prohibited groups and advocating integration of the races within schools.

Comparative Laws

Ala.—Code of Ala., Tit. 52, § 165.

Fla.—F.S.A. § 230.23.

Idaho—I.C. § 33-714.

Ind.—Burns' Ann.St. § 28-4308.

N.M.—1953 Comp. § 73-12-15.

Okl.—70 Okl.St.Ann. § 6—2.

Law Review Commentaries

Back pay and reinstatement. Melvin G. Dakin, 18 La.L.Rev. 79 (Dec.1957).

1956 legislation affecting segregation, Charles A. Reynard, 17 La.L.Rev. 101 (Dec.1956).

Review of quasi-judicial action. Melvin G. Dakin, 15 La.L.Rev. 318 (Feb. 1955).

Tenure, reduction in position and salary. 2 La.L.Rev. 757 (May 1940).

Notes of Decisions

Abolition of position 9

Actions or suits 21

Back pay 15

Certification of teachers 3

Charges against teacher 13

Compensation 19

Consolidations and reduction in number of teachers 8

Constitutionality 1

Construction and application 2

Decisions under prior laws 24

Dual office holding 7

Evidence 28

Full hearing 27

Grounds for removal or dismissal 6

Injunction 22

Judicial review of removal 20

Leave of absence 16

Mandamus 23

Membership in N.E.A. 29

Notification of dismissal 12

Powers of board in general 4

Prescription 25

Proceedings in case of dismissal in general 11

Reinstatement and back pay 15

Removal without cause 5

Resignation or voluntary termination of employment 18

Seniority in dismissal 10

Suits 21

Suspension 14

Tardiness 26

Transfer to another school or position 17

Validity 1

Waiver 30

NOTES

[1] See Appendix A.

[2] See Appendix B.