The opinion of the court was delivered by
This is a statutory action under the Kansas act againstdiscrimination (K.S.A. 44-1001, et seq.) brought by theAttorney General of Kansas charging that the Board of Educationof the city of Kansas City, Kansas, discriminated against negroesin several respects.
The basic question of law presented involves a construction ofthe Kansas act against discrimination — whether the act requirespublic school authorities to integrate their teaching staff atthe various schools under their jurisdiction.
[199 Kan. 314]
This action was instituted by the Attorney General(plaintiff-appellant and cross-appellee) by filing a complaint,authorized by K.S.A. 44-1005, against Unified School District No.500 and individual members of the school board(defendants-appellees and cross-appellants), charging that theBoard of Education of the city of Kansas City, Kansas, hascontinually and within six months immediately prior to the filingof the complaint on August 26, 1963, engaged in unlawfulemployment practices in violation of G.S. 1961 Supp. (now K.S.A.)44-1009(a). The unlawful practices were alleged to consist of: "(A) Refusing to hire or consider for employment qualified negro applicants as teachers in schools attended predominantly by white children. "(B) Segregating its negro elementary school supervisor from its white elementary school supervisors in furnishing office accommodations to such supervisors, and by limiting its negro supervisor to work in schools attended predominantly by negro children while its white supervisors are assigned to both white and negro schools. "(C) By giving official sanction to separate city-wide teachers' associations for negro and white elementary teachers and making membership in such segregated associations compulsory for its elementary school teacher employees."
The answer of the school board specifically denied each of thecharges alleged to be unlawful employment practices.
The act created a state commission having power to eliminatediscrimination in employment to be known as theantidiscrimination commission, and provided that after theeffective date of the act such commission was to be known as thecommission on civil rights. At the hearing before this commissionthe NAACP was permitted to intervene in the action as acomplainant (intervener-appellant and cross-appellee).
Before the matter was heard by the commission a fourth issuewas injected into the case. At the pretrial conference, counselfor the Attorney General stated, although not in the pleadings,that the most important issue in the controversy was the refusalof the school board to transfer a teacher, over his objection,from one school to another solely for the purpose of integratingor mixing the faculties.
Before the commission heard the case the school board by motionattempted to learn which individuals had been discriminatedagainst by the refusal of the board to hire them or consider themfor employment in predominantly white schools; but the commissiondenied the motion.
[199 Kan. 315]
The case was heard by the commission on the three issuesenumerated in the complaint and the fourth issue injected at thepretrial conference, despite the recommendation of its owninvestigating officer that there was no probable cause upon thethird issue in the complaint.
After hearing the matter the commission found against theschool board on all four issues, and concluded that the schoolboard "has engaged and at the time of the hearing was engaged inunlawful, discriminatory practices in violation of the Kansas ActAgainst Discrimination." It thereupon issued a sweeping order asfollows: "THE COMMISSION THEREFORE ORDERS RESPONDENT: "1. To forthwith cease and desist from such unlawful and discriminatory practices. "2. To employ and consider for employment as teachers in its schools Negro applicants on the basis of training, qualification and school need and not on the basis of the racial makeup of the pupils of such school. "3. To assign its Negro elementary school supervisors for duty as it does its white supervisors and not on a basis of a Negro supervisor to a predominantly Negro school. "4. To furnish its supervisors, Negro and white alike, office and school accommodations on the basis of position and not on the basis of color. "5. To cease and desist from recognizing and encouraging separate and segregated teachers' associations. "IT IS FURTHER ORDERED, that respondent take the following affirmative actions: "1. To reassign its teachers and to establish procedures so as to eliminate the condition whereby Negro teachers are being assigned to predominantly Negro schools and white teachers to predominantly white schools. "2. To employ and consider for employment qualified Negro applicants as teachers in schools attended predominantly by white children. "3. To issue a public statement on its policy of no discrimination in employment and assignment of teachers and to use the same in the recruitment, selection and hiring of its teachers. "4. To make known to the various teachers' associations its disapproval of separate teachers' associations for Negro and white elementary school teachers. "5. To provide the Kansas Commission on Civil Rights, within ninety days hereafter, with a written report of the manner of compliance with the above orders."
Thereupon the school board appealed to the Wyandotte Countydistrict court.
After the commission announced its decision that teachersshould be transferred from one school to another to effectintegration, the teachers became alarmed and intervened by aclass action so that their rights might be fully protected.
[199 Kan. 316]
The motion by the teachers to intervene recites: "Come now John E. Hirsch, Randall R. Dunn, Mary Wolfe, Phoebe May and Gerald W. Hall, acting for themselves individually and as officers of and as designated agents for Kansas City, Kansas Teachers Association and move for leave to intervene as respondents. . . ."
The teachers' motion to intervene is intermingled with thethird issue in the complaint, which charged that the school boarddiscriminated by supporting separate teachers' associations —some only for negro teachers, and some only for white teachers.There was absolutely no testimony at the hearing before the civilrights commission to support this charge. The superintendent ofschools testified positively that such separate associations didnot exist, and the investigating commissioner found there was noprobable cause to submit this issue to the commission fordecision. In fact, counsel arguing the teachers' cause beforethis court on appeal stated that the teachers' association whichintervened represented all tenure teachers, both colored andwhite, in the Kansas City, Kansas, school system. Furthermore,the individuals named as interveners and officers of the KansasCity, Kansas, Teachers' Association constitute a biracial group.
The trial court heard the appeal in accordance with theauthority conferred by statute (K.S.A. 44-1011), and determinedthe matter on motion for summary judgment filed by the respectiveparties after discovery proceedings had been completed. The trialcourt had before it the pleadings, the record on appeal,additional evidence in the form of admissions and answers tointerrogatories produced in the district court, together with thebriefs of the respective parties.
Findings of fact and conclusions of law incorporated by thetrial court in its journal entry of judgment filed on the 17thday of October, 1966, are as follows: "FINDINGS OF FACT: "1) Respondents-Appellants filed an appeal from orders made by the Kansas Commission on Civil Rights as of April, 1965, the appeal having been taken on April 28, 1965. "2) That by its findings and conclusions Kansas Commission on Civil Rights directed Respondent-Appellant to `reassign its teachers and to establish procedures so as to eliminate the condition whereby Negro teachers are being assigned to predominantly Negro schools, and white teachers to predominantly white schools.'
"3) That the evidence presented against Respondents-Appellants was based
[199 Kan. 317]
mainly on charts prepared by Respondent-Appellant Board of Education and conversations and letters; no teacher employed by Respondent-Appellant and no applicant for a teacher's position with Respondent-Appellant testified for Complainant-Appellee; that therefore complainant did not sustain the burden of proof put upon him.
"4) That in September of 1960, Respondent-Appellant was defendant in a case known as the `Downs Case', filed in the United States District Court; that the decision in that case was handed down on July 19, 1963; and that during this period of time no change was made by Respondent-Appellant in its operation in the City of Kansas City, Kansas. "5) That since July 19, 1963, some teachers have voluntarily accepted assignments to schools in which the predominance of pupils was not of the same race and color as that of the transferring teacher; and this is the situation that has existed to February, the date of the hearing. "6) That teachers working for Respondent-Appellant are divided into two categories: (a) Tenure teachers, those who have worked three years and more, and (b) probationary teachers, who must teach for three years before being admitted as tenure teachers. "7) That there is now and has been for many years an association known as the Kansas City, Kansas, Teachers' Association, comprising all tenure teachers, this being the only association recognized by Respondent-Appellant. "CONCLUSIONS OF LAW: "1) Chapter 44, Article 10, K.S.A., is the `Kansas Act Against Discrimination.' Chapter 72, Article 54, K.S.A., is `Tenure of Instructors, cities over 120,000.' "2) That the Attorney General is authorized by Chapter 44, Article 10, K.S.A., to make, sign and file a complaint under the Kansas Act Against Discrimination; that Respondent-Appellant is an `employer' under that act. "3) That before 1961 school districts were not included within the term `employer'. But in the 1961 Supplement to the General Statutes of Kansas, 1949, the legislature, by legislative enactment, deleted the words `school districts', so that in 1961 Respondent-Appellant did come within Chapter 44, Article 10, K.S.A. "4) That by virtue of legislative enactment, Respondent-Appellant District was thus subject to Chapter 44, Article 10, K.S.A., in 1961, but that there was pending in the United States District Court an action designated Downs et al. v. The Board of Education of Kansas City, Kansas, et al., which case was not decided until July of 1963 [affirmed in Downs v. Board of Education of Kansas City, 336 F.2d 988 (10th Cir. 1964)]; that Respondent-Appellant was not in position to comply with the Kansas law until the judgment in the Downs case. "5) That beginning in 1963 voluntary acts of teachers resulted in some changes, as suggested by the Kansas Commission on Civil Rights.
"6) That in addition to the laws relating to school districts and educational associations, and with particular reference to teachers, Chapter 72, Articles 5401 to 12, inclusive, are in full force and effect, these articles being the `tenure' section of Kansas laws, and by this teachers attain tenure.
[199 Kan. 318]
"7) That tenure teachers by contract with Respondent-Appellant District have a contractual right, which in turn becomes a property right so far as said teachers are concerned; that in fulfilling their duties, they are subject to the Respondents-Appellants and to require the Respondents-Appellants to transfer tenure teachers only because of race or color, over his or her objection, is a violation of the contractual and property right of the teacher; that teachers serving their probationary period are not included within the term `tenure teacher' and are subject to K.S.A. Chapter 44, Article 10. "8) The Court finds that the evidence presented as to the Kansas City, Kansas, Teachers' Association and as to discriminatory practice against Supervisor Lewis does not warrant the Court sustaining the action of the Kansas Commission on Civil Rights on these points. "9) The motions for summary judgment by the Respondents-Appellants and by the Intervener Kansas City, Kansas, Teachers' Association are sustained insofar as they concern teachers with tenure; the balances are overruled. The motion for summary judgment by Complainant-Appellee is overruled except insofar as it concerns probationary teachers, who are subject to Chapter 44, Article 10; with regard to these teachers, it is sustained. "10) The costs are to be equally divided between Complainant-Appellee and Respondents-Appellants."
The Attorney General and the NAACP have appealed only from apart of the trial court's decision: (1) That part of the decisionfinding against them on the first charge of discrimination statedin the complaint; and (2) that part of the decision which heldthat teachers with tenure cannot be transferred from one schoolto another to effect integration, over their objection (the issueinjected at the pretrial conference before the commission oncivil rights).
The first portion of the appeal is from the findings of factmade by the trial court, and the second raises a question of law.
The school board and the intervening teachers havecross-appealed from that portion of the order of the trial courtholding that teachers without tenure can be transferred, overtheir objection or protest, from one school to another to effectintegration.
While the Attorney General and the NAACP did not appeal fromthe decision of the trial court on the second and third chargesof discrimination set up in the complaint, some mention should bemade of these issues in view of the findings made by thecommission on civil rights.
The second charge of discrimination concerned the negrosupervisor of elementary schools. His testimony was not for theAttorney General and the NAACP but for the school board. Briefly,his testimony was that he despised discrimination but that he wasnot discriminated against. He felt he was a trusted supervisorymember
[199 Kan. 319]
of the staff of the school board; that his opinions were soughtand valued, not only by the superintendent of schools but byother members of the staff as well. He was consulted whether theproblems involved negro students or not.
Notwithstanding this uncontroverted testimony, the civil rightscommission found the school board guilty of this charge ofdiscrimination without any evidence whatever, and the trial courtproperly reversed the commission.
The third charge of discrimination in the complaint has alreadybeen discussed in connection with the intervention by theteachers. In the face of no evidence whatever to support thischarge in the complaint, the commission nevertheless found theschool board guilty on this point, which the trial court alsoproperly reversed.
The first issue on appeal is whether the trial court erred infinding that the Attorney General and the NAACP did not sustainthe burden of proof on the first charge in the complaint.
The record discloses the school board operates the publicschool system in Kansas City, Kansas. These schools consist ofelementary schools (kindergarten through sixth grade); juniorhigh schools (seventh through ninth grade); senior high schools(tenth through twelfth grade); and a junior college (thirteenthand fourteenth grades). There are thirty elementary schools inthe system, four junior high schools, four senior high schoolsand one junior college. On the date the complaint was filed thesystem employed more than 840 teachers, all or many of whom couldbe vitally affected by the decision in this case.
Prior to 1950 the school system was completely segregated. Inthat year the white and negro junior colleges were combined. In1954 after the Supreme Court of the United States held thatsegregated schools were unlawful (Brown v. Board of Education,347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686 ), a program toeliminate segregation was launched by the school board to takeeffect by a series of steps.
In October, 1960, the NAACP, one of the appellants in thiscase, filed an action in the United States District Court for theDistrict of Kansas (Downs v. Board of Education of Kansas City,336 F.2d 988 [10th Cir. 1964]) charging the school board of thecity of Kansas City with practicing segregation in its schoolsystem.
While that action was pending in the federal district court,the school board refrained from taking any action tending tointegrate
[199 Kan. 320]
the staff members of its schools. The school board believed thatwith the pendency of litigation it should not change existingprocedure until after a decision was rendered by the court. TheDowns case was decided by the United States District Court inJuly, 1963, and from that time on the Board of Education hastaken positive and active steps toward integration of staffmembers of all schools.
A history of the Kansas City, Kansas, school system concerningits problems with respect to the white and colored population inthe city may be found in the Downs case. The memorandumdecision of Judge Stanley in the Federal District Court of Kansasin the Downs case was introduced in evidence before thecommission on civil rights, and was made a part of the record onappeal to this court.
When the Downs decision was announced in July, 1963, teachingassignments in the Kansas City, Kansas, school system for theyear 1963 had already been made. Nevertheless, a number of negroteachers were interviewed in an attempt to obtain teachers whowould voluntarily transfer to the Quindaro school, which was thenstaffed by white teachers. Three were obtained. During that yeara vacancy occurred on the staff of the junior college, and it wasfilled with a negro teacher. A few other changes were also made.The following year, many negro teachers were employed inpredominantly white schools, and many white teachers wereemployed in predominantly negro schools. The board not only hiredfor any vacancy in the system without regard to race, but itactually tried to employ negro teachers for white schools andvice versa. The big stumbling block was in finding qualifiednegro teachers.
It was not until July, 1961, that the Kansas act againstdiscrimination became effective as to public school systems.(See, K.S.A. 44-1002, and L. 1961, ch. 248, § 2.)
The instant action was not filed until the 26th day of August,1963, and it was not filed by or at the instigation of anyteacher or teachers.
The appellants rely upon complainant's exhibit No. 11, which isa chart showing a breakdown of the teachers of the school systemwithin Kansas City, Kansas. It shows the total number of teachersin each school, and it also shows how many of the teachers ineach school were negro and how many were white. The chart alsoshows the percentage of negro students in each of those schools.While the exhibit does not disclose the date it purports torepresent, the
[199 Kan. 321]
chart does disclose that the teaching staff in the thirty-fivedifferent schools listed was either all negro or all white. Dr.Orvin L. Plucker became the superintendent of schools in KansasCity, Kansas, in September, 1962. He testified that the facultieswere segregated at that time, and this appeared to him to be theresult of an old policy. The record discloses the testimony oftwo witnesses concerning a conversation with Dr. Plucker July 19,1963, in which he was asked as superintendent whether negroapplicants were considered for jobs only in negro schools, towhich the superintendent answered, "I am afraid that's true."
A witness by the name of Mrs. Porteous related that on December11, 1963, Mr. Fothergill, a member of the school board, statedthat if she wished to have a negro teacher for her child, sheshould move into a negro community. On cross examination as tothis point Mrs. Porteous testified: "Q. Now, don't you recall at that meeting that they told you they were planning some integration steps? "A. It was explained that they had already hired a teacher in one incident. This was explained by the Superintendent. The Board did not explain that they had any definite plans at that time. "Q. No, but you knew that Dr. Plucker was speaking, and the Board members were sitting there, and they didn't contradict him, did they, when he said they were making some plans for integration? "A. They indicated that there were plans for hiring without discrimination. There was no indication that there was anything definite. Insofar as that would bring integration, yes, but there was no overall plan for reassignment. "Q. I see. So they did tell you that `When we hire teachers from now on, we will hire them without regard and assign them without regard to race or color,' didn't they? "A. Yes, and I knew that before that. "Q. You knew that that was their policy before that? "A. Yes, sir. "Mr. Edwards told the witness that the primary purpose of the Board of Education was education not integration. The Board indicated that there were plans for hiring without discrimination."
The foregoing evidence must be analyzed in view of the claimedcharge of discrimination on point one in the complaint, and theantidiscrimination statute. The complaint charged that the schoolboard discriminated against negroes in "Refusing to hire orconsider for employment qualified negro applicants as teachers inschools attended predominantly by white children." In otherwords, if a qualified negro teacher made an application to theschool board to
[199 Kan. 322]
teach in the system, or made an application to be assigned to apredominantly white school and the school board refused to hireor assign him, then a claim for relief might exist. The recordpresented on appeal in this case discloses there was no suchapplication involved in any of these proceedings. The word"refuse" has a well-defined meaning which is frequently used andnot difficult to understand.
When the record is examined there is no evidence that theschool board refused either to hire or assign a negro applicantin a predominantly white school. In fact, there is no evidencethat any qualified negro applicant requested the school board toemploy him, or that any qualified negro applicant or teacherrequested the school board to assign him to a predominantly whiteschool. The school board cannot be convicted of refusing an offerunless some showing is made that an offer had been proposed. Thetrouble in this case is that, although the charge is clear andpositive, there is not one scintilla of evidence to support it.
The Attorney General and the NAACP argue that the trial courtfound a violation of the act on the first ground of the complaintbecause it granted summary judgment for the Attorney General andthe NAACP with regard to all teachers who have probationarystatus within the school system. It is argued this conclusion isinconsistent with its finding that there was no evidence tosupport the charge on count one.
The position was taken by the trial court that immediately uponthe rendering of the decision in the Downs case, it becamenecessary for the school board to do something to startintegrating the faculties in the public school system of KansasCity, Kansas; that while the Downs case was pending, the Boardof Education was under no obligation to comply with the Kansasact against discrimination by reason of the pending litigationagainst it.
Be that as it may, we regard the conclusion of the trial courtto which reference has just been made as raising a question oflaw which is to be determined by a construction of the act, andnot as an inferential finding of fact adverse to its specificfinding on the first charge in the complaint.
The Attorney General and the NAACP argue where the complainantmakes a showing that virtually all of the employer's negroemployees are assigned to one group of schools, and virtually allof its white employees are assigned to a different school, apresumption
[199 Kan. 323]
arises that these employees have been segregated on the basis ofrace. It is contended the duty of rebutting this presumptionshould fall upon the respondent, and if he does not do so aviolation of the act should be held to have been established.(Citing, Gainer v. School Board of Jefferson County, Ala.,135 F. Supp. 559 [N.D. Ala. 1955], where there was actualdiscrimination against negro teachers in the payment ofsalaries.)
The Attorney General and the NAACP also cite Hernandez v.Texas, 347 U.S. 475, 98 L.Ed. 866, 74 S.Ct. 667 (1954); andNorris v. Alabama, 294 U.S. 587, 79 L.Ed. 1074, 55 S.Ct. 579(1935), where the systematic and arbitrary exclusion of membersof the defendant's race from the jury lists solely because oftheir race or color denied the criminal defendant the equalprotection of the laws guaranteed to him by the FourteenthAmendment. It is argued the same reasoning should be appliedwhere neither the complainant nor any teacher in the Kansas City,Kansas, school system has direct access to the process by whichteachers are assigned; that it would be virtually impossible forthem to establish by direct evidence any instance in which ateacher was assigned to any particular school on the grounds ofrace; that they must rely on a pattern giving rise to apresumption of segregation.
Presumptions are discussed under the code of evidence in K.S.A.60-413 through 60-416. The presumption to which the AttorneyGeneral and the NAACP allude is not a conclusive or irrebuttablepresumption.
K.S.A. 60-414 in pertinent part provides: ". . . (b) if the facts from which the presumption arises have no probative value as evidence of the presumed fact, the presumption does not exist when evidence is introduced which would support a finding of the non-existence of the presumed fact, and the fact which would otherwise be presumed shall be determined from the evidence exactly as if no presumption was or had ever been involved." Another section of interest is K.S.A. 60-415, which reads: "If two presumptions arise which are conflicting with each other the judge shall apply the presumption which is founded on the weightier consideration of policy and logic. If there is no such preponderance both presumptions shall be disregarded."
Attention is called to the fact that in the instant case notone single teacher was called to testify that the school boarddiscriminated against him or her in any way. Under the law ofKansas as found in numerous cases (including Donley v. AmeradaPetroleum
[199 Kan. 324]
Corp., 152 Kan. 518, 106 P.2d 652; and Blackburn v. Colvin,191 Kan. 239, 380 P.2d 432) when a party to a case has failed tooffer evidence or produce witnesses within his power to produce,an inference arises that the evidence or testimony which wouldhave been produced would have been adverse to that party. Thisinference in and of itself gives rise to a presumption whichconflicts with the presumption asserted by the Attorney Generaland the NAACP. It cannot reasonably be said which of thesepresumptions is founded on the weightier consideration of policyand logic. The result is both presumptions must be disregarded.This leaves the complainant without any evidence whatever tosupport the charge of discrimination on the first point in thecomplaint.
In fact, there is evidence in the record of a specific naturereflecting that discrimination did not exist. There is evidencein the record that the school board was actively seeking toemploy negro teachers. One of the Attorney General's witnesseswas Roland Swain, director of placement at Kansas StateUniversity. He testified the school board was actuallyadvertising for negro teachers. While this may have been atechnical violation of the civil rights act to refer to anyperson by race, evidence that the school board was advertisingfor negro teachers can hardly support the charge that it refusedto hire them. Dr. Plucker positively testified he never at anytime refused to hire a teacher because of race, and that he neverrefused to assign a teacher to a school of predominantly anotherrace because of race. He also testified that at no time did heever refuse to employ a qualified negro teacher; that he was ondirective to employ negro teachers, and was making an effort todo so — the directive being by the Board of Education.
The Attorney General and the NAACP suggest in their brief thereason teachers did not testify that they sought reassignment andwere refused was because of the fear that if they did, theirpositions would be in jeopardy. This can hardly be advanced as avalid reason in view of the Kansas act against discriminationestablishing the civil rights commission. If a teacher wasdischarged because he testified to the truth in a trial, theschool board would be squarely within the grips of thecommission. This argument is fortified by the fact that when thecivil rights commission decided that some teachers would have tobe transferred from one school to another, over their objection,in order to effect integration, the
[199 Kan. 325]
teachers, both white and negro, immediately became alarmed andemployed counsel of their own and entered the case asinterveners, opposing the decision of the commission.
There is federal authority which supports the proposition thatwhile litigation was pending against the school board concerningdiscrimination, it was under no obligation to change itsposition. Under this theory the charts and exhibits introduced bythe Attorney General disclosed the situation existing only duringthe pendency of the Downs case in the federal courts>. While theDowns case was pending, the antidiscrimination statute becameeffective. (July 1, 1961.) The authority justifying such inactionon the part of the school board pending litigation isSpringfield School Committee v. Barksdale, 348 F.2d 261 (1stCir. 1965), a civil rights case. In the opinion the court said: ". . . Plaintiffs have pointed to the fact that defendants ceased, or virtually ceased, assertedly on advice of counsel, their voluntary activities upon the institution of suit. We attach no great significance to this. The application of a stick is hardly an encouragement to egg-laying proclivities, golden or otherwise. We forbear wondering whether plaintiffs could not have expected this, and were more interested in a court order itself than in actual performance. We similarly forbear wondering whether defendants' cessation was entirely motivated by concern that their work to find an educationally feasible way to reduce imbalance would be wasted if the court ordered another route to be taken, or was due in part, at least, to pique. Rather, we recognize, as was said in Taylor v. Board of Education, D.C.S.D.N.Y. 1961, 191 F. Supp. 181, at 197, aff'd 2 Cir., 1961, 294 F.2d 36, cert. den. 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339. "`Litigation is an unsatisfactory way to resolve issues such as have been presented here. It is costly, time consuming — causing further delays in the implementation of constitutional rights — and further inflames the emotions of the partisans.' Where no order is called for, we are unprepared to use defendants' inactivity following suit as an excuse for retaining dormant, or anticipatory, jurisdiction. . . ." (pp. 265, 266.)
In Downs a class action was brought by a group of negrochildren through their parents as next of friends to enjoin theBoard of Education of the city of Kansas City, Kansas, fromcontinuing allegedly discriminatory practices. The United StatesDistrict Court for the District of Kansas, Arthur J. Stanley,Jr., J., rendered a judgment from which the plaintiffs appealed.In the Tenth Circuit Court of Appeals the decision of JudgeStanley, finding that the Board of Education's overall policy metconstitutional requirements, with the exception of its policypermitting transfers of students from schools in which they werein racial minority, was upheld on September
[199 Kan. 326]
25, 1964. It was held the policy of the school board had servedto effect a racially nondiscriminatory school system even thoughcertain elementary schools were still composed of predominantlynegro students, and certain of white students, a junior highschool and a senior high school were still virtually entirelynegro, boundary lines for junior high schools were changed andassertedly negro schools were staffed by negro personnel, andwhite schools by only white personnel. (Downs v. Board ofEducation of Kansas City, supra.)
The Attorney General and the NAACP in their brief say: ". . . The equal protection clause of the Fourteenth Amendment, which has similar purposes with regard to public education, has been held to have been violated on precisely the kind of pattern evidence produced here. In Dowell v. School Board of Oklahoma City Public Schools, 219 F. Supp. 427, 442-443 (W.D. Okla. 1963), the court found just such a pattern of faculty segregation to be a violation of the equal protection of the laws as guaranteed to Negro school children. A similar result was reached in Christmas v. Board of Education of Hartford County, Md., 231 F. Supp. 331, 336-337 (D. Md. 1964). Board of Public Instruction of Duval County, Fla. v. Braxton, 326 F.2d 616, 620-621 (5th Cir. 1964), cert. den. 377 U.S. 924, 12 L.Ed.2d 216, 84 S.Ct. 1223."
The above decisions cited are a counterpart to Downs in therash of federal litigation that followed Brown v. Board ofEducation, 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686 (1954),which held it unlawful to maintain segregated schools in thepublic school system. While it is true charts were introduced inthe Dowell case to disclose the number of white and negrostudents in the various schools in the Oklahoma City publicschool system, there was specific evidence in the record that ofthe integrated schools the school board had employed no negroprincipals or negro teachers since the Brown decision, exceptin schools where the school attendance was overwhelmingly negrostudents. The federal court concluded from all the evidence thetime had come for the Oklahoma City school board to begin theintegration of its teaching staff.
In the other two cases there was specific evidence ofdiscrimination on the basis of race in hiring new teachers fordesegregated schools.
As to the first charge of discrimination stated in thecomplaint, we hold the record presented on appeal supports thetrial court's finding that the complainant did not sustain theburden of proof put upon him.
The Attorney General and the NAACP contend the trial courterred in holding that teachers with tenure cannot be transferred
[199 Kan. 327]
from one school to another in order to break down an existingpattern of racial segregation in school faculties. Conversely,the school board and the teachers contend the trial court erredin holding that teachers who have not acquired tenure underK.S.A. 72-5401 to 72-5412 can be transferred from the school towhich they have been regularly assigned to another school, overtheir objection, solely for the purpose of making a more completeintegration of faculties.
This is the real nub of this lawsuit. The school board hasrefused to transfer teachers legally employed by it, from oneschool to another, over their objection, to effect integration.The civil rights commission ruled that the school board must doso. On appeal the trial court held the school board was notrequired to do so as far as teachers with tenure are concerned;but that it was required to transfer teachers who had not yetattained tenure. The reasons advanced by the school board for itsrefusal to make such transfers are as follows:
(1) To do so would be a violation of the civil rights actbecause to require a teacher to transfer from one school toanother on the basis of race is the rankest kind ofdiscrimination.
(2) A more practical reason is because if the school boardshould attempt to do so, it would lose from forty to fiftyteachers. Teachers are not so easily come by that the schoolboard can afford to take any step which would alienate such alarge number of its professional staff.
(3) Even teachers who felt they could not afford to leave theschool system would be dissatisfied and troubled; and it is wellrecognized in educational circles that teachers who aredissatisfied and troubled do not function well, and do notachieve the best results with the education of children. It isthe primary function of teachers to educate children.
It should be emphasized the controversy is over teachers whoare satisfied with their current assignments and do not want toteach elsewhere, particularly under circumstances which aredifferent. It does not concern teachers who are willing to takepart in the integration of the school system because as to thoseteachers, when the matter was heard in the district court, theywere already teaching in integrated positions. The school boardis not willing to transfer teachers from one school to anotherover their objection, and the Attorney General and the NAACP willaccept nothing less.
[199 Kan. 328]
The federal courts> have held that the Fourteenth Amendment tothe United States Constitution does not command integration ofraces in public schools.
After the original opinion in Brown v. Board of Education,supra, the court set the case for further argument on thequestion of how its decision should be implemented. Thereafter, athree-judge district court was designated in Kansas to considerthe Kansas aspects of the instructions in the Brown case. Thedistrict court in Brown v. Board of Education of Topeka,139 F. Supp. 468 (D. Kans. 1965), stated: ". . . Desegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school together because of race or color." (p. 470.)
The foregoing language was approved in Bell v. School City ofGary, Indiana, 324 F.2d 209 (7th Cir. 1963). The court therealso said:
"We approve also of the statement in the District Court's opinion, `Nevertheless, I have seen nothing in the many cases dealing with the segregation problem which leads me to believe that the law requires that a school system developed on the neighborhood school plan, honestly and conscientiously constructed with no intention or purpose to segregate the races, must be destroyed or abandoned because the resulting effect is to have a racial imbalance in certain schools where the district is populated almost entirely by Negroes or whites. . . .'" (p. 213.)
A recent case in the United States Court of Appeals for theSixth Circuit is Deal v. Cincinnati Board of Education,369 F.2d 55 (1966). The court there said:
"Although boards of education have no constitutional obligation to relieve against racial imbalance which they did not cause or create, it has been held that it is not unconstitutional for them to consider racial factors and take steps to relieve racial imbalance if in their sound judgment such action is the best method of avoiding educational harm. Balaban v. Rubin, 14 N.Y.2d 193, 250 N.Y.S.2d 281, 199 N.E.2d 375 (1964), cert. denied 379 U.S. 881, 85 S.Ct. 148, 13 L.Ed.2d 87 (1964); Morean v. Board of Education of Montclair, 42 N.J. 237, 200 A.2d 97 (1964)." (p. 61.)
The federal district judge for the Eastern District ofTennessee was concerned with a revised plan for the completedesegregation of the city schools in Knoxville, Tennessee, inGoss v. Bd. of Ed., City of Knoxville, Tenn., (1965) 10 RaceRel. L. Rep. 1642
[199 Kan. 329]
University School of Law]. The trial court after the pretrialconference ordered, among other things:
". . . Without limiting the generality and effectiveness of the foregoing, all teachers, principals and other school personnel shall be employed by defendants and assigned or re-assigned to schools on the basis of educational need and other academic considerations, and without regard to race or color or the persons to be assigned, and without regard to the race or color of the children attending the particular school or class within a school to which the person is to be assigned. No transfer or re-transfer of a teacher, principal or other school personnel may be granted or required for considerations based upon race and color and no assignment or re-assignment of such teacher, principal or other school personnel may be made for considerations based upon race or color. "All tenure and seniority rights are to be observed and the defendants will not utilize or attempt to utilize the provisions of the State Teacher Tenure Law or any other law, custom or regulation conferring discretion upon them in the employment and discharge of teachers or the abolition of teaching positions in such manner as to discriminate either directly or indirectly on account of race or color in the employment, discharge, re-employment, assignment, or reassignment of teachers, principals or other school personnel in the Knoxville City School System." (p. 1643.)
Another case holding that a person may not be compelled totransfer from one school to another because of his race or coloris Brown v. County School Board of Frederick County, Va.,245 F. Supp. 549 (W.D. Va. 1965). While that case involves studentsin the public school system, the issue is the same as the onepresently before the court. There the court said:
"It is well established in this Circuit and elsewhere that a freedom of choice plan, in which the school authorities allow the student, or his parents, to freely choose the school which he is to attend, is `an acceptable device for achieving a legal desegregation of schools.' Bradley v. School Board, 345 F.2d 310, 318-319 (4th Cir. 1965), and cases cited therein, n. 17. Such a view is the logical result of the accepted principle that the Fourteenth Amendment does not outlaw voluntary separation of the races, but only discrimination which forces separation. Bradley v. School Board, 317 F.2d 429, 438 (4th Cir. 1963); Jeffers v. Whitley, 309 F.2d 621, 629 (4th Cir. 1963); Briggs v. Elliott,132 F. Supp. 776, 777 (E.D.S.C. 1955) (three-judge court on remand). . . ." (p. 555.) (Emphasis added.)
While the Attorney General and the NAACP throughout their briefspeak of the teachers in the Kansas City, Kansas, school systemas being segregated on the basis of race, it appears from theissue injected at the pretrial conference that what they areactually concerned with is the compulsory integration of teachingstaff in the
[199 Kan. 330]
various schools. They argue the present practices of the schoolboard are inconsistent with the Kansas act againstdiscrimination.
The Attorney General and the NAACP refer to the purposes of theantidiscrimination statute set forth in the first section of theact, and emphasize that the opportunity to secure and to holdemployment is a civil right of every citizen; and that it is toprotect these rights that the act was passed and the commissionestablished. They argue K.S.A. 44-1006 enjoins the court to givethe act a liberal construction for the accomplishment of thesepurposes. Certainly, they argue, these purposes will be furtheredby a construction of the act which prohibits discriminationagainst an entire class as well as against individual members ofa class. From this point they conclude the act requiresintegration of the teaching staff of the various schools in thepublic school system. They then jump to their ultimate conclusionthat a teacher can be transferred from the school to which he hasbeen regularly assigned to another school, over his objection,solely for the purpose of making a more complete integration ofthe teaching staff.
The declaration of the state policy and purpose of the Kansasact against discrimination is set out in the first section.(K.S.A. 44-1001.) It states, among other things: ". . . The practice or policy of discrimination against individuals in relation to employment or in relation to full and equal accommodatons in hotels, motels, cabin camps and restaurants by reason of their race, relations, color, national origin or ancestry is a matter of concern to the state, that such discrimination threatens not only the rights and privileges of the inhabitants of the state of Kansas but menaces the institutions and foundations of a free democratic state. It is hereby declared to be the policy of the state of Kansas to eliminate discrimination in all employment relations and to eliminate and prevent discrimination, segregation, or separation in hotels, motels, cabin camps and restaurants." (Emphasis added.)
The complaint in the instant case charged the school board withunlawful employment practices. The second section of the act(K.S.A. 44-1002) defines unlawful employment practices as:
"(g) The term `unlawful employment practices' includes only those unlawful practices and acts specified in section 44-1009 of the General Statutes Supplement of 1961, and includes segregate or separate." K.S.A. 44-1009 in pertinent part provides: "It shall be an unlawful employment practice:
"(a) For an employer, because of the race, religion, color, national origin or ancestry of any individual to refuse to hire or employ, or to bar or to discharge
[199 Kan. 331]
from employment such individual or to otherwise discriminate against such individual in compensation or in terms, conditions, or privileges of employment." (Emphasis added.)
The construction of the language in the Kansas act againstdiscrimination, as is true with the construction of the languageof any statute, is a matter of law and not a matter of fact.(State, ex rel., v. Mills, 171 Kan. 397, 233 P.2d 720.)
It should be emphasized that the foregoing act prohibitsdiscrimination against any individual, and it is not confinedto members of any minority group. Thus, discrimination can beagainst white individuals, as well as against negro individuals,or others.
Would it be proper for the school board under the foregoing actto say to a teacher because you are white you must be transferredto a school other than the one where you are now teaching inorder that the faculty may be better integrated?
It is obvious this would be just as much a violation of theanti-discrimination act as for the school board to say to a negroteacher because you are a negro you cannot teach in a certainschool.
It is abundantly clear the Kansas act against discriminationbars discrimination only, and is not concerned with theintegration of the races.
The word "discriminate" is defined in Webster's Third NewInternational Dictionary as: "to . . . distinguish between . . . to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit."
The word has been judicially defined in Wimberly v. Ga. So. &Fla. Ry. Co., 5 Ga. App. 263, 63 S.E. 29 (1908), as "treatingone differently from another." (p. 266.)
The foregoing definitions do not indicate that the word"discriminate" can be used synonymously with the word"integrate," which has an entirely different meaning. "Integrate"has been defined as "to unite with something else." (Webster'sThird New International Dictionary.)
It can therefore be said if the school board does notdiscriminate against any individual in refusing to hire, inrefusing to employ, in compensation, or in terms, conditions orprivileges of employment, it has satisfied the admonition of theKansas act against discrimination. In other words, it has no dutyor obligation under this act to take any affirmative step toeffect integration.
[199 Kan. 332]
The foregoing is based upon the complaint filed herein and theassertion of the Attorney General and the NAACP that the presentemployment practices of the school board are inconsistent withthe Kansas act against discrimination. (But see, United Statesv. Jefferson County Board of Education, 372 F.2d 836 [5th Cir.Dec. 29, 1966], construing the two Brown decisions [Brown v.Board of Education, 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686(1954); and Brown v. Board of Education, 349 U.S. 294, 99 L.Ed.1083, 75 S.Ct. 753 (1955)], and re-examining school desegregationstandards in the light of the Civil Rights Act of 1964 and theGuidelines of the United States Office of Education, Departmentof Health, Education, and Welfare.)
The Attorney General and the NAACP argue in their brief asfollows: "The provisions of Sec. 44-1002(g) and Sec. 44-1009(a) (1), being parts of the same act, should be read together. Harris v. Shanahan, 192 Kan. 629, 635, 390 P.2d 772 (1964). When this is done, it becomes clear that segregation or separation of employees on racial grounds constitutes an unlawful employment practice. Racial segregation or separation of employees is the simplest and most fundamental kind of discrimination against individual employees in the terms, conditions and privileges of their employment. It is for this reason that the legislature, while aiming the provisions of K.S.A. 44-1009(a) (1) at the discrimination against any individual, went on to state in K.S.A. 44-1002(g) that segregation and separation are included within the practices outlawed by K.S.A. 44-1009."
Aside from the ambiguity of the expression "and includessegregate or separate" added at the end of subparagraph (g) in44-1002, supra, when the statute is analyzed in the face of thedeclared state policy and purpose of the act as expressed in44-1001, supra, in view of the issue here to be determined, wecannot say the act compels the school board to transfer a teacherin the public school system, over his objection, because of hisrace, to a school other than the one to which he has beenregularly assigned in order that the faculty may be betterintegrated.
Under the Kansas act against discrimination the school boardhas no right to compel such transfer, and the civil rightscommission has no authority to attempt to compel such transfer.
When the teachers intervened and the district court acceptedthe case for determination, the process of integrating theteaching staff of the various schools in Kansas City, Kansas, wasvoluntarily under way.
[199 Kan. 333]
While the school board may have no trouble assigning newteachers to the various schools in a voluntary plan aimed toencourage integration, the problem, as indicated by theintervening teachers, is whether or not teachers who arepresently teaching in the system and have obtained tenure can beinvoluntarily removed from their present teaching position andtransferred to another school where the faculty makeup ispredominantly of a race other than their own. Both colored andwhite teachers would be affected.
The trial court seized upon the distinction betweenprobationary teachers (K.S.A. 72-5403) and teachers who haveobtained tenure (K.S.A. 72-5404) in construing the Kansas actagainst discrimination. We fail to see how the construction ofthe antidiscrimination act can be affected by the tenure statusof a teacher under the act providing for the tenure ofinstructors in cities having a population of more than 120,000inhabitants. (K.S.A. 72-5401 to 72-5409, inclusive.)
Furthermore, under the state of the record we fail to see aneed to consider the property rights of teachers, if any, undertheir teaching contract with the school board. On the facts inthis case, as indicated by the record, the contract which thevarious teachers have with the school board specifies only thatthey teach in the Kansas City, Kansas, school system. Theteachers' contract does not specify a particular school. Thus,insofar as the teachers' contracts are concerned, the schoolboard could assign a teacher to teach anywhere within its schoolsystem. But it may not be wise administration or professionallyefficient to transfer a teacher to another school against thatteacher's wishes. Dr. Plucker testified concerning the transferof teachers that he confers at length with teachers and givesweight to their thoughts and opinions in regard to a transfer.
When the Attorney General filed the complaint in the instantcase, he set forth three specific unlawful employment practicesin which the school board was alleged to have discriminatedagainst persons of the negro race in violation of the Kansas actagainst discrimination. On each of these charges he failed tosustain the burden of proof cast upon him to show a violation ofthe act. The issue injected at the pretrial conference presenteda question of law to the trial court on the construction of theact, which it erroneously determined.
We hold the Kansas act against discrimination barsdiscrimination only. It does not purport to be concerned with theintegration of
[199 Kan. 334]
the races as such on the teaching staff of a public school systemor anywhere else. Therefore, the school board cannot be compelledunder the Kansas act against discrimination to transfer a teacherin the public school system, over his objection, because of hisrace, to a school other than the one to which he has beenregularly assigned in order that the faculty may be betterintegrated.
For the reasons heretofore assigned, the order of the lowercourt is affirmed in all respects, except that portion thereofsustaining the complainant's motion for summary judgment as itconcerns probationary teachers, which is reversed.
[199 Kan. 335]