Eugene Harry Ward, Plaintiff-appellant, v. Harold C. Kelly, Superintendent of Education, et al.,defendants-appellees, 476 F.2d 963 (5th Cir. 1973)

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U.S. Court of Appeals for the Fifth Circuit - 476 F.2d 963 (5th Cir. 1973) March 16, 1973

Nausead Stewart, Melvyn R. Leventhal, Jackson, Miss., for plaintiff-appellant.

T. H. Campbell, III, John C. Satterfield, Yazoo City, Miss., for defendants-appellees.

Before GEWIN, SIMPSON and RONEY, Circuit Judges.


We affirm the District Court's determination that this is not a proper class action because the size of the class is demonstrably small. Each member of the alleged class could be joined in this litigation without undue burden on the plaintiff.

We reverse and remand on the issues concerning plaintiff's dismissal, demotion, and failure to be rehired by the school board. A hearing before the school board cannot be substituted as a trial of the issues before the District Court. This case is remanded to the District Court for further proceedings consistent with our opinion in Thompson et al. v. Madison County Board of Education et al., 476 F.2d 676 (5th Cir. 1973), a case in which the District Court followed essentially the same procedure which we find objectionable here.

Affirmed in part and reversed and remanded in part.