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SHERPELL v. HUMNOKE SCH. DIST. NO. 5 OF LONOKE CTY

September 30, 1985

BRENDA SHERPELL, As Parent and Next Friend of CLYDE SHERPELL; and EASTER BELL, As Parent and Next Friend of MALINDA BELL; and KATHERINE RAYNOR, As Parent and Next Friend of MARCIE RAYNOR; and ETHEL CRISS, As Parent and Next Friend of MICHAEL CRISS; and JOE BRYANT, As Parent and Next Friend of PATRICK BRYANT
v.
HUMNOKE SCHOOL DISTRICT NO. 5 OF LONOKE COUNTY; and LEROY ISBELL, Individually and as President of the Humnoke School Board; and TOM CAMP, TOMMY JONES, LILLIAN CALVERT and ELBERT CARTER, Individually and as Members of the Humnoke Public School Board; and EDSEL WEAVER, Individually and as Superintendent of the Humnoke Public School Board; and CHARLES EADS, Individually and as Principal of Humnoke High School



The opinion of the court was delivered by: HOWARD

 This civil rights action was instituted on February 24, 1984, by Brenda Sherpell, as parent and next friend of Clyde Sherpell; Easter Bell, as parent and next friend of Malinda Bell; Katherine Ranor, as parent and next friend of Marcie Ranor; Ethel Criss, as parent and next friend of Michael Criss; and Joe Bryant, as parent and next friend of Patrick Bryant, against The Humnoke School District No. 5 of Lonoke County, Arkansas; Leroy Isabell, Individually and as President of The Humnoke School Board; Tom Camp, Tommy Jones, Lillian Calvert and Elbert Carter, Individually and as Members of The Humnoke Public School Board; Edso Weaver, Individually and as Superintendent of The Humnoke Public School Board; and Charles Eads, Individually and as Principal of The Humnoke High School, seeking a declaratory judgment pertaining to policies and practices adopted and implemented by the defendants in the operation of the public schools within The Humnoke School District No. 5, which purportedly discriminate against both adult and minor plaintiffs because of their race and color. Plaintiffs also seek injunctive relief to the end that defendants be enjoined from implementing and enforcing such policies and practices, as well as damages against the defendants.

 The jurisdiction of this Court is invoked under Title 28 U.S.C. § 1343 and Title 42 U.S.C. §§ 1983 and 1985. Plaintiffs also assert, as additional jurisdictional grounds, the Sixth and Fourteenth Amendments and Federal Common Law. Plaintiffs also invoke this Court's pendent jurisdiction in order to assert certain Arkansas state common law rules in order to assert claims for assault and battery, defamation, intentional infliction of emotional distress, false imprisonment and unlawful restraint.

 This proceeding was instituted as a class action pursuant to Federal Rules of Civil Procedure 23(a) and (b) in behalf of plaintiffs and other blacks similarly situated in The Humnoke School District No. 5. Specifically, plaintiffs, as asserted in their motion for class certification, sought to represent a class of persons comprised of "all black students and prospective and future black students, faculty and staff of The Humnoke School District No. 5 of Lonoke County."

 On December 14, 1984, this Court entered its order denying plaintiffs' motion for class certification and holding that this action would proceed as an individual action since plaintiffs' motion and supporting documents failed to designate any definite number of persons constituting the purported class. Moreover, plaintiffs conceded that they were unable to "identify the class size with specificity, but believed, upon information, that these persons were so numerous that joinder of all members is impractical." The Court concluded that such conclusory allegations were insufficient to demonstrate that the class was so numerous that joinder of all members is impracticable, and that, moreover, the Court would be required to indulge in conjecture and speculation as to the size of the class and whether the requirement of numerosity under Rule 23 (a) and (b) had been met.

 On March 15, 1985, the Court denied plaintiffs' motion for reconsideration after the Court considered additional evidence in support of plaintiffs' request for class certification.

 Plaintiffs in their post trial brief have again pressed for a certification of a class by asserting:

 
"The number of persons affected by defendants' constitutional violations would not only include those black students and faculty who are presently connected with the school district, but due to the school district's history of racial discrimination would include all past and prospective black students, faculty and staff. Clearly, the number of persons comprising such a class is so large as to make individual lawsuits impractical." (Emphasis added).

 Plaintiffs, after trial on the merits, seek to include "all past . . . black students, faculty and staff" in order to demonstrate that the purported class is so numerous that joinder of all members is impractical. The Court is not persuaded that it should reconsider its denial of plaintiffs' request for class certification for two essential reasons: first, plaintiffs have simply asserted conclusory allegations as opposed to factual ones and, second, the likelihood of unfair prejudice to defendants should the Court certify a class after a full scale hearing on the merits. Further, the Court is still of the view that the Court would be required to speculate as to the size of the purported class and whether the requirement of numerosity has been met. Accordingly, plaintiffs' request is denied.

 I.

 BACKGROUND INFORMATION

 Prior to 1968, the public schools in the Humnoke School District were operated under the separate, but equal concept in which all white students attended the all-white school in Humnoke, Arkansas, and all blacks attended the all-black school in Allport, Arkansas. The geographical area, consisting of approximately sixty square miles, constituting Humnoke School District is essentially a rural farming community in southeastern Arkansas.

 The accommodations provided by the district to the black school were less than equal to the accommodations afforded the white school. For example, there was a lower teacher-pupil ratio at the all-white school than the black school; *fn1" the white students were afforded a full educational program while black students beyond the sixth grade level at the Allport School were transported out of the district to Stuttgart or England, Arkansas, in adjoining districts. The teaching materials made available to the all-black school were so deteriorated and mutilated that these materials were virtually without any benefit or usefulness. The situation was so deplorable that black teachers at the Allport School demanded better teaching materials and advised the school officials that a failure on the part of the district to respond favorably to this request would result in mass resignation from their teaching positions. *fn2" The all-white school board while ignoring the remedial demands of the black teachers, construed the letter as a positive and absolute resignation, accepted the black teachers' resignations without conducting a hearing. In short, the Allport School was more separate than it was equal when compared to the Humnoke School.

 In 1968, the all-black school was closed and the black students were transferred to the Humnoke Schools. Blacks were not afforded the opportunity to participate in the alleged unitizing of the Humnoke District. Only two black faculty members were retained for teaching purposes in the Humnoke Schools. *fn3" These two black teachers were given all black or segregated classes in the new purportedly unitary school system.

 An intense racial atmosphere has permeated the Humnoke School System since the closing of the Allport black school and the transfer of the black students to the Humnoke Schools in 1968. This atmosphere is generated and perpetuated by the use of racial slurs and jokes, and the existence of a dual system premised on race within the Humnoke School System. This acute atmosphere has had a deleterious effect on black students which has resulted in not only creating an inferiority complex on the part of black students, but has served as a potent force in impeding and frustrating black students ability to learn and strive for excellence.

 The evidence reflects that faculty members refer to black students as "niggers", "blue-gums", and "coon". White patrons of the Humnoke School District over the years have been afforded the opportunity and privilege to use the school facilities after school hours, during the week, and on week-ends for civic or community projects and programs, but black patrons are not afforded the same opportunity and privilege.

 Basketball goals established on the Humnoke School campus for recreational purposes were removed from the campus at the direction of the Humnoke School Board in order to keep blacks out of the Humnoke community after normal school hours. *fn4"

 Although the student body in the district is approximately 60% white and 40% black, prior to the filing of this lawsuit, there was only one black teacher who taught a regular course and approximately three black teachers who were instructors in special education courses; there are five white cafeteria workers in the system and only one black; there are four white bus drivers and only one black driver.

 Mrs. Jackie Martin, a former white teacher who taught in the Humnoke School System for nine years, testified that she personally witnessed the discipline of a black child by an administrative official which resulted in broken skin and blood; that during this nine-year tenure, she had not witnessed any white child subjected to such treatment.

 Black patrons of the district are not encouraged to present group or individual problems to the school board formally, but are required to consult and communicate with a particular board member on any grievances on a one-to-one basis.

 Joe Bryant, a plaintiff in this action, testified that his father, to his personal shame, was the one black person in Humnoke whom whites could call upon to appease and calm the demands and aspirations of blacks who persisted in change. In return, according to Mr. Bryant, his father received favored treatment economically by the white leaders of Humnoke.

 The one glimmer of hope flowing from the evidence in this record is the fact that white student leaders were not committed to, nor influenced to any measurable degree by the racial practices of faculty members and administrators particularly in situations in which the student body had exclusive control, i.e., class organizations and in the selection of materials to be included in the year book. Black students were included or involved without restriction in extra curricular activities fostered by the student body. Simply put, the adults could achieve tremendous success in resolving problems in the Humnoke School System if they would only pattern their attitudes and conduct after the students in the district.

 II.

 RACIAL ALLOCATION OF FACULTY

 The evidence reflects that when the all-black school was closed in 1968, only two black faculty members were retained for teaching purposes in the purportedly unitary Humnoke School System. Between 1971 and 1975 only white teachers were employed by the District. Between 1968 and the 1980-81 school term, not more than four black teachers have been employed at any given time. *fn5"

 There are no blacks serving at the administrative level. As previously noted, with exception to one black cafeteria worker and one black bus driver, all custodial, secretarial, transportation and food service personnel are white.

 Black male applicants have sought coaching positions in the District, but were not hired because the Board and administrators were reluctant to have a male figure supervising girls. However, the District employed a white male to fill the vacancy.

 The principal and several white faculty members in the District are not certified. The current superintendent was certified only recently. Moreover, the Board of Directors was unaware of this lack of certification. There are no uncertified black teachers employed by the District.

 As previously observed, the black student population of the District is essentially 40% of the total student population.

 From the outset of these proceedings, plaintiffs have challenged defendants' policy and practice of allocating faculty and support staff on a racial basis. It is plain that plaintiffs have standing to make this challenge. Rogers v. Paul, 382 U.S. 198, 15 L. Ed. 2d 265, 86 S. Ct. 358; Bradley v. School Board of the City of Richmond, 382 U.S. 103, 15 L. Ed. 2d 187, 86 S. Ct. 224; Kemp v. Beasley, 389 F.2d 178 (8th Cir. 1968).

 Seventeen years ago Judge Lay, now Chief Judge, speaking for the Court of Appeals in Kemp v. Beasley, supra, in emphasizing the obligation of school officials observed:

 
There must be positive recognition by school officials of their responsibility to create a ...

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