22 Fair Empl.prac.cas. 1216,12 Empl. Prac. Dec. P 11,213united States of America, Plaintiff-appellant,robert Love et al., Plaintiffs-intervenors, v. Gadsden County School District et al., Defendants-appellees, 539 F.2d 1369 (5th Cir. 1976)

In 1975 the Gadsden County School District, with the authorization of the district court, closed Midway Elementary School. Clarence Bryant, Midway's black principal for five years,¹  was transferred to the position of "assistant principal" of Havana Middle School. The United States, a party to the original desegregation suit in Gadsden County, charges that this transfer was a "demotion" within the meaning of Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1969), rev'd in part sub nom. Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S. Ct. 608, 24 L. Ed. 2d 477 (1970) (reversal limited to timing of desegregation), and that it was accomplished without reference to the "nonracial objective criteria" required by Singleton for the selection of professional staff to be dismissed or demoted when staff reductions occur during conversion of a dual school system into a unitary one.

The district court, after an evidentiary hearing, held that Bryant's transfer was not a demotion. For the reasons stated herein, we reverse this finding as clearly erroneous. We also reject the School Board's alternative arguments in support of the district court judgment. Finally, we remand with instructions that the School Board promulgate written nonracial objective criteria for selecting professional staff to be dismissed or demoted as a result of staff reductions during unification and that it reconsider Bryant's demotion in light of such criteria.

I. BACKGROUND AND PROCEEDINGS BELOW.

In Singleton this court, following Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S. Ct. 29, 24 L. Ed. 2d 19 (1969), held that school districts "may no longer operate dual systems and must begin immediately to operate as unitary systems." 419 F.2d at 1217. In a unanimous en banc opinion we directed that certain steps must be taken, and procedures followed, to accomplish the immediate desegregation of student bodies, faculties, and administrations. In the portion of this directive which is relevant to the instant case, we stated:

2. Staff members who work directly with children, and professional staff who work on the administrative level will be hired, assigned, promoted, paid, demoted, dismissed, and otherwise treated without regard to race, color, or national origin.

3. If there is to be a reduction in the number of principals, teachers, teacher-aides, or other professional staff employed by the school district which will result in a dismissal or demotion of any such staff members, the staff member to be dismissed or demoted must be selected on the basis of objective and reasonable non-discriminatory standards from among all the staff of the school district. . . .

Prior to such a reduction, the school board will develop or require the development of nonracial objective criteria to be used in selecting the staff member who is to be dismissed or demoted. These criteria shall be available for public inspection and shall be retained by the school district. The school district also shall record and preserve the evaluation of staff members under the criteria. Such evaluation shall be made available upon request to the dismissed or demoted employee.

'Demotion' as used above includes any re-assignment (1) under which the staff member receives less pay or has less responsibility than under the assignment he held previously, (2) which requires a lesser degree of skill than did the assignment he held previously, or (3) under which the staff member is asked to teach a subject or grade other than one for which he is certified or for which he has had substantial experience within a reasonably current period.

419 F.2d at 1218.

On August 7, 1970 the United States District Court for the Northern District of Florida ordered the School Board of Gadsden County, Florida immediately to effectuate a plan for conversion to a unitary school system. Midway Elementary School (grades K-6) was covered by this order. The order also incorporated, verbatim, that portion of Singleton's directions with respect to dismissal and demotion of professional staff quoted above, including the requirement that the School Board develop and make publicly available nonracial objective criteria before any such dismissal or demotion took place. Record Vol. I at 8-11.

It is undisputed that the School Board, to this date, never has promulgated and made publicly available such criteria. Record Vol. III at 67 (stipulation of the School Board); see Campbell v. Gadsden County District School Board, 534 F.2d 650, 657 (5th Cir. 1976).

On May 6, 1975 the School Board petitioned the district court for modification of the 1970 desegregation order, requesting permission to close Midway Elementary School at the end of the 1974-75 school term and to transfer its students and staff to other schools.²  On May 27 the district court entered an order granting the School Board's request. The United States then moved to modify the May 27 order, alleging that the transfer of Midway's black principal Clarence Bryant to the position of "assistant principal" of Havana Middle School (grades 6-8) was a demotion within the meaning of Singleton and the 1970 desegregation order and that it was accomplished without reference to the nonracial objective criteria required by those authorities. The United States prayed that the School Board be ordered to apply such criteria in selecting which principal within the school system would be demoted as a result of closing Midway.³ 

The district court held an evidentiary hearing on the government's motion November 7, 1975. Bryant, who by now had undertaken his new post at Havana Middle School, testified at the hearing, as did Assistant Superintendent Grinelle Bishop and Superintendent M. D. Walker. At the conclusion of the hearing the district court ruled from the bench that the United States was not entitled to the relief sought because Bryant's transfer was not a demotion. The court therefore found it unnecessary to decide whether the requirement of reference to nonracial objective criteria had been violated.⁴  The United States appeals.

II. WAS BRYANT "DEMOTED" WITHIN THE MEANING OF SINGLETON ?

Under Singleton, a demotion occurs whenever a member of a school's professional staff is reassigned to a position where he or she receives less pay, or has less responsibility, or is required to use a lesser degree of skill than in his or her previous assignment.⁵  419 F.2d at 1218. As this court has emphasized, an increase in salary cannot, under Singleton, compensate for a decrease in responsibility, because,

a truly dedicated educator, presumably the sort of educator that school boards would seek, will often minimize his monetary returns in exchange for factors that are more treasured by him as an administrator or teacher. The real gist of demotion is a reduction in responsibility, not in salary. . . . (A) school board . . . cannot prostitute the responsibility principle simply by offering higher salaries for substantially less responsible work to demoted employees.

Lee v. Macon County Board of Education, 453 F.2d 1104, 1109-10 (5th Cir. 1971); see Campbell v. Gadsden County District School Board, 534 F.2d 650, 656-57 (5th Cir. 1976); Bassett v. Atlanta Independent School District, 485 F.2d 1268, 1271 (5th Cir. 1973); Lee v. Macon County Board of Education, 456 F.2d 1371, 1373-74 (5th Cir. 1972). In this case, as in those cited above, the key question is whether the reassignment complained of resulted in a reduction of responsibility.⁶  It was incumbent upon the School Board to show that it did not. Lee v. Macon County Board of Education, 456 F.2d 1371, 1373 (5th Cir. 1972).

At the hearing below, Bryant described in some detail the range of responsibility he had carried as principal of Midway Elementary School. He testified that he supervised all the school's instructional staff, consisting of nine to eleven teachers and six teachers' aides, and scheduled all the school's classes. He was also responsible for the discipline and safety of the school's 160 to 180 students.

In addition, Bryant performed a number of administrative duties. He compiled regular reports to the superintendent's office on the school's finances, attendance, and Title I program. He ordered textbooks for the school and was responsible for money collected from the school lunchroom and other sources. Bryant named the members of Midway's Title I advisory committee, and he met both with that group and with members of the school's PTA.

Bryant also described his current duties as assistant principal of Havana Middle School. According to his uncontradicted testimony, these duties consisted almost exclusively of checking school buses as they arrived in the morning and departed in the evening, and watching the children during their lunch periods and class breaks. He testified that as assistant principal of Midway he supervised no teachers, prepared no class schedules, and wrote no administrative reports.

Finally, Bryant testified that he would accept a principalship if one were offered, even if he had to take a salary decrease. When asked why he felt this way, Bryant replied:

One, I like being a principal. I also enjoy working with instructional staff, students. I also feel that along with being principal I have more decision making authority. I can make decisions on my own instead of as an assistant principal. I do not make any administrative decisions as such, but as a principal I would be able to make these decisions and supervise teachers and other things that go along with being principal of a school.

Record Vol. III at 75.

The only other testimony with respect to Bryant's responsibilities at Midway and Havana came from Assistant Superintendent Bishop. Bishop admitted on cross-examination that he did not know what particular responsibilities had been assigned to Bryant by the principal of Havana, who was not called to testify.⁷  Bishop nonetheless testified that, in his opinion, Bryant carried greater responsibility as assistant principal of Havana than as principal of Midway, citing several general reasons for this opinion.⁸ 

After reviewing the evidence outlined above, the district court held that Bryant had not been demoted.⁹  The United States argues that this finding was clearly erroneous. Fed. R. Civ. P. 52(a); see McLaurin v. Columbia Municipal Separate School District, 530 F.2d 661, 665 (5th Cir. 1976); McCurdy v. Board of Public Instruction, 509 F.2d 540 (5th Cir. 1975); Lee v. Macon County Board of Education, 470 F.2d 958, 960 (5th Cir. 1972). We agree.

As noted above, only Bryant testified as to his actual responsibilities as assistant principal of Havana. His testimony established that his primary duty was to ride herd over 593 youngsters during the times they were not in class. He no longer carried supervisory authority over teachers or curriculum, nor administrative responsibility for school finances or programs. Although Assistant Superintendent Bishop expressed the opinion that Bryant's responsibilities had increased, we think that Bishop's own testimony, see note 7 supra, demonstrates that he did not have sufficient knowledge of Bryant's duties at Havana to speak to this point. His opinion therefore was entitled to little or no weight.¹⁰ 

In support of its holding, the district court cited Bassett v. Atlanta Independent School District, 485 F.2d 1268 (5th Cir. 1973), for the proposition that, "It is legally possible for the assistant principal of a larger school to have as much or more responsibility than the principal of a smaller school . . .." Record Vol. II at 54. There is dicta in Bassett to support this view,¹¹  and we do not disagree with the proposition in the abstract. We are also clear, however, that the mere fact of transfer from principalship of a school of 168 students to the nominal¹²  post of assistant principal of a school of 593 students does not, in itself, establish that no demotion occurred. See Lee v. Macon County Board of Education, 456 F.2d 1371 (5th Cir. 1972).¹³  Although the size of a school may have some bearing on the extent to which responsibilities are delegated among its various administrators, the focus in a case like this must remain on the responsibilities actually borne by the particular person in the particular position. We simply hold that, on the evidence before it, the district court erred in finding that Bryant carried as much responsibility as assistant principal of Havana as he had as principal of Midway. See Campbell v. Gadsden County District School Board, 534 F.2d 650, 656-57 (5th Cir. 1976); Bassett v. Atlanta Independent School District, 347 F. Supp. 1191, 1196-97 (E.D. Tex. 1972), rev'd on other grounds, 485 F.2d 1268 (5th Cir. 1973).

III. WAS SINGLETON'S REQUIREMENT OF OBJECTIVE NONRACIAL CRITERIA MET?

The School Board argues that even if the district court erred in finding no demotion, its ruling should be upheld because, the Board claims, Bryant was chosen for demotion by application of objective nonracial criteria of the kind required by Singleton. The School Board admits that it has not committed such criteria to paper and made them available for public inspection prior to any demotion, as required by both Singleton and the 1970 district court desegregation order. It nonetheless points to Superintendent Walker's testimony below as establishing that such criteria were, in fact, used,¹⁴  and it argues that for us to require compliance with the prior availability branch of Singleton in this case would be "to elevate form over substance." Brief for Appellee at 16.

We strongly disagree with the last assertion. Singleton requires not only substantive fairness, but also a form of procedural fairness, in choosing who is to be demoted when demotions become necessary. Lee v. Macon County Board of Education, 453 F.2d 1104, 1112-14 (5th Cir. 1971). The requirement of prior written criteria was intended to prevent the necessity for and dangers of ex post facto justification of decisions already made. Cf. McLaurin v. Columbia Municipal Separate School District, 478 F.2d 348, 352-53, en banc court dissolved, 486 F.2d 1049 (5th Cir. 1973). The requirement ensures that demotion decisions are made not only with fairness, but also with the appearance of fairness, to those whose careers are affected. The requirement also guarantees that meaningful review of demotion decisions is possible. Thus, in those cases where school boards have produced written criteria as required by Singleton, we have examined the criteria with utmost care to determine whether impermissible subjective or irrelevant factors have crept into the evaluation process. See, e. g., United States v. Texas Education Agency, 459 F.2d 600, 604-08 (5th Cir. 1972); Carter v. West Feliciana Parish School Board, 432 F.2d 875, 877-79 (5th Cir. 1970); cf. Ward v. Kelly, 515 F.2d 908, 911 n.7 (5th Cir. 1975); Adams v. Rankin County Board of Education, 485 F.2d 324, 326-27 & ns.2-3 (5th Cir. 1973); Armstead v. Starkville Municipal Separate School District, 461 F.2d 276, 277-80 (5th Cir. 1972).

The reason for the Singleton requirement of prior written criteria is illuminated clearly by the very evidence upon which the School Board relies in this case. When Superintendent Walker was asked what qualifications he had considered in deciding which principal should be demoted, he answered:

We considered the length of service, the size of the school, the certification. I don't know that I could sit here and enumerate for you everything that was considered and involved in it but these are some of the things we considered.

Record Vol. III at 112 (emphasis added). Neither meaningful review, nor confidence in the substantive fairness of the decision, is possible on such a record.

We do not find it necessary to decide in this case whether the absence of prior written nonracial objective criteria must, in every case, preclude further inquiry as to whether a dismissal or demotion in fact was made pursuant to nonracial objective criteria.¹⁵  On the record before us it is clear that Superintendent Walker was unable to recall with precision just what criteria he used to select Bryant for demotion. Under these circumstances we agree with the United States that the appropriate remedy is to remand the case to the district court with instructions that the School Board promulgate its long-delayed Singleton criteria and submit them to that court for approval or modification.¹⁶  In drawing these criteria, the School Board and district court might find it useful to consider the sample criteria set out in United States v. Texas Education Agency, 459 F.2d 600, 607-08 n.3 (5th Cir. 1972). After the criteria have been approved the School Board, applying those criteria, shall select the principal to be demoted as a result of the closing of Midway Elementary School.¹⁷ 

REVERSED and REMANDED.