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LOEWEN v. TURNIPSEED

April 2, 1980

LOEWEN, JAMES W.; CHARLES SALLIS; MSGR. PAUL V. CANONICI; FATHER LUKE MIKSCHI; SISTER MAUREEN SULLIVAN; GREGORY C. COLEMAN, STEVEN G. LLOYD, THEON E. LLOYD, HAILICIA D. LLOYD, minors represented by their mother, ALEASE C. LLOYD; JAQUELINE ANN CHINN, MARIE THERESA CHINN, MADELINE CHINN, minors represented by their mother, MAMIE CHINN; THE JEFFERSON COUNTY BOARD OF EDUCATION; and its members, ROBERT WHITE, ROBERT WILLIAMS, MARTHA LEE, BESSIE LEE EARLS, LILLIE DIXON BROWN; MARION L. YARES; JULIUS HEIDELBERG; HENNIE B. TAYLOR; WILLIE R. HARDING, NANCY HUMPHREY and TARA HUMPHREY, minors represented by their father, CHARLES HUMPHREY; CATHERINE GILMER GRAY, a minor represented by her father RT. REV. DUNCAN M. GRAY, JR., PLAINTIFFS
v.
JOHN TURNIPSEED, HOWARD RAILS, BEN BURNEY, EVELYN WILDER, MARY KYLE, VIRGINIA McELHANEY, JAMES WASH, individually and in their official capacities as members of the Mississippi History Textbook Rating Committee; W. A. MATHEWS, individually and in his official capacity as executive secretary of, and D. L. HARRISON, SR., WILLIAM L. WALLER, GARVIN H. JOHNSTON, LARRY TYNES, JEAN M. COOL, individually and in their official capacities as members of the MISSISSIPPI STATE TEXTBOOK PURCHASING BOARD, DEFENDANTS



The opinion of the court was delivered by: SMITH

MEMORANDUM OF DECISION

The action sub judice is before the court after an eight-day non-jury trial for decision on the merits. The court has received and given consideration to the post-trial memoranda and proposed findings of fact and conclusions of law submitted by the parties as well as all pretrial submissions. Based upon the pleadings, the evidence, exhibits and memoranda and proposed findings of fact and the conclusions of law submitted by the parties, this Memorandum of Decision is released and contains the findings of fact and conclusions of law for which provision is made in Rule 52(a), Fed.R.Civ.P.

 I. Findings of fact.

 A. The Parties.

 The plaintiffs named in the complaint, as amended, (hereinafter "complaint") are: James W. Loewen and Charles Sallis, the editors and two of the eight co-authors of Mississippi: Conflict and Change, a ninth grade textbook in Mississippi History; Monseigneur Paul V. Canonici, Director of Educational Services of the Diocese of Natchez-Jackson, and, as such, the chief administrative officer of Roman Catholic parochial schools within the diocese, which schools are alleged to be qualified to participate in the Mississippi free textbook program; Father Luke Mikschl, Principal of the Holy Child Jesus Elementary and High School, Canton, Mississippi, a Roman Catholic parochial school; Sister Maureen Sullivan, a teacher of Mississippi History at Holy Child Jesus School; Gregory C. Coleman, Stephen G. Lloyd, Theon E. Lloyd, and Hailicia D. Lloyd, black students enrolled in grades nine, seven, five, and kindergarten, respectively, at Holy Child Jesus School, who join in this action through their mother and next friend, Mrs. Alease C. Lloyd; Jacquelyn Ann Chinn, Marie Theresa Chinn, and Madelin Chinn, black students enrolled in grades nine, eight, and four, respectively, at the Holy Child Jesus Elementary School, who join in this action through their mother and next friend, Mrs. Mamie Chinn; the County Board of Education of Jefferson County, Mississippi, together with its president and individual members; the Superintendent and Assistant Superintendent of Education of the Jefferson County, Mississippi School District, a Mississippi public school district; Willie R. Harding and Hennie B. Taylor, teachers of Mississippi History and related subjects in the Jefferson County School District; Nancy Humphrey and Tara Humphrey, black students enrolled in grades nine and eight, respectively, in the Jefferson County School District, who join in this action through their father and mother and next friends, Charles and Dorothy Humphrey; and Catherine Gilmer Gray, a white student enrolled in grade eight at the St. Andrew Episcopal Day School, Jackson, Mississippi, who joins in this action through her father and next friend, the Right Reverend Duncan M. Gray, Jr.

 B. Nature of Action.

 This suit arises from the actions of the "rating committee" defendants in refusing to recommend for adoption as a textbook in the course of Mississippi History, the book Mississippi: Conflict and Change edited by the plaintiffs, Dr. Loewen and Dr. Sallis, who are also two of the authors of the book, and in recommending for adopting in the course of Mississippi History the book Your Mississippi, by Dr. John K. Bettersworth. Plaintiffs claim that said actions of the "rating committee" defendants, and of the Mississippi State Textbook Purchasing Board, and its members, in ratifying the actions of the "rating committee" defendants, deprived them of their rights guaranteed and secured by the First, Thirteenth and Fourteenth Amendments to the Constitution of the United States, 42 U.S.C. § 1981 and § 1983. Jurisdiction is vested in this court pursuant to 28 U.S.C. § 1343(3) and (4).

 C. The Nature of Relief Sought.

 Plaintiffs request the court to grant the following relief:

 (1) An order enjoining defendants to forthwith promulgate and implement procedures, consistent with due process, for hearings on textbooks submitted to state authorities for adoption;

 (2) An order enjoining defendants from limiting the submission and appraisal of textbooks to intervals longer than one year; *fn2"

 (3) An order enjoining defendants to forthwith approve for use in eligible schools of the state, at state expense, the textbook Mississippi: Conflict and Change ;

 (4) An order enjoining defendants from engaging in policies or practices which discriminate against textbooks containing perspectives on history at odds with those traditionally acceptable in Mississippi;

 (5) A judgment declaring § 37-43-21 of the Mississippi Code of 1972 unconstitutional; *fn3"

 (6) An injunction enjoining defendants from denying approval to any submitted textbook which meets minimum standards of scholarship, satisfies fundamental and reasonable curriculum requirements and which obtains the endorsement of a local school district board of education and its rating committee; *fn4"

 (7) An order awarding plaintiffs costs and reasonable attorneys' fees;

 (8) An order granting such additional or alternative relief as the court deems just and equitable.

 D. The Applicable State Law.

 The pertinent laws of the State of Mississippi governing the process of recommending and adopting books for use as textbooks in the eligible schools of the State of Mississippi are found in Chapter 43, Title 37 (§§ 37-43-1, et seq.) Mississippi Code of 1972, Annotated. This chapter is entitled "Textbooks". The sections pertinent to the action sub judice are set forth verbatim in Appendix "A" to this Memorandum.

 E. The Evidence.

 In the fall of 1974, the Mississippi State Textbook Purchasing Board, pursuant to rules and regulations adopted by it based on the authority delegated to it by § 37-43-19, caused notices to be sent to the representatives of publishers advising that qualified publishers might submit proposals for the sale of books for use as textbooks, in various courses of study, including the subject of Mississippi History, to be taught at the ninth grade level. In response to the Board's notice, the following books were submitted by publishers for rating and adopting as textbooks in the course of Mississippi History: Steck-Vaughn Company submitted the book Your Mississippi by Dr. John K. Bettersworth; and Pantheon Books, a Division of Random House, submitted Mississippi: Conflict and Change edited by the plaintiffs, Dr. James W. Loewen and Dr. Charles Sallis.

 As mandated by the provisions of § 37-43-21 of the Mississippi Code, and in accord with the practices and procedures of the Board, these two books were submitted to a rating committee for appraisal and recommendation. In accordance with the statute, the Governor of the State of Mississippi, then Honorable William L. Waller, and the Superintendent of Education of the State of Mississippi, then Dr. Garvin L. Johnston, appointed as members of said rating committee the defendants Burney, Kyle, McElhaney, Riales, Turnipseed, Wash, and Wilder. Based on its statutory authority to promulgate rules and regulations relating to the rating and adoption of textbooks, the State Textbook Purchasing Board had established certain criteria for use by rating committees in rating proposed textbooks in Mississippi History. These criteria were furnished by the Board to the defendant members of the rating committee and consisted of (1) the Board's memorandum to rating committee members, Ex., P-6; (2) the Board's pamphlet, "Suggested Criteria for Textbook Selection," Ex., P-7; and (3) the State curriculum for Mississippi History contained in Mississippi School Bulletin, "Social Studies in the Junior High School," (April, 1967), Ex., P-8.

 The defendant rating committee members in due course appraised and rated the two books submitted to them in the course of Mississippi History. The ratings given by each defendant on each book are as follows:

 Benjamin B. Burney, Jr., gave the textbook Your Mississippi a rating of "2", and the textbook Mississippi: Conflict and Change a rating of "1".

 Mary Kyle gave the textbook Your Mississippi a rating of "2", and the textbook Mississippi: Conflict and Change "no rating."

 Virginia Wilkins McElhaney gave the textbook Your Mississippi a rating of "1", and the textbook Mississippi: Conflict and Change "no rating."

 Howard E. Riales gave the textbook Your Mississippi a rating of "1", and the textbook Mississippi: Conflict and Change "no rating."

 John Marion Turnipseed gave the textbook Your Mississippi a rating of "1", and the textbook Mississippi: Conflict and Change "no rating."

 James E. Wash gave the textbook Your Mississippi a rating of "1", and the textbook Mississippi: Conflict and Change a rating of "2".

 Evelyn Harvey Wilder gave the textbook Your Mississippi a rating of "1", and the textbook Mississippi: Conflict and Change "no rating."

 The defendant rating committee members Kyle, McElhaney, Riales, Turnipseed, and Wilder are members of the White race; the defendant rating committee members Burney and Wash are Negroes.

 The book Your Mississippi received a rating from all seven members of the rating committee and was eligible to be adopted by the State Textbook Purchasing Board as a textbook in the course of Mississippi History. The State Textbook Purchasing Board did adopt Your Mississippi for use as a Mississippi History textbook for a period of four years, to be extended for an additional two years.

 The procedures followed by the Mississippi State Textbook Purchasing Board and the members of the rating committee during the adoption process were those generally followed in accordance with the applicable statutes of the State of Mississippi and the rules and regulations of the Textbook Purchasing Board. For the purpose of evaluating and rating books for adoption as textbooks for the 1974 textbook adoption proceedings, the defendant members of the rating committee were appointed, according to statute, by the Governor of Mississippi and the Superintendent of Education of the State of Mississippi, for the general area of the curriculum designated as "Social Studies, Career, Humanities, 7-9." There were 10 courses of study embraced within this area of the curriculum, including the course of Mississippi History to be taught at the ninth grade level. There were 106 books submitted by publishers for adoption in this area of the curriculum, which were evaluated and rated by the defendant members of the rating committee.

 After receiving notice of their appointment as members of the rating committee, the rating committee members were requested by the Textbook Purchasing Board to attend, and did attend, a meeting held in the auditorium of the Woolfolk State Office Building in Jackson, Mississippi, on August 28, 1974. Members of all rating committees appointed for the 1974 adoption proceedings were present at this meeting, as well as the Governor, the Superintendent of Education, officials of the Textbook Purchasing Board, and certified publisher's representatives. At this meeting, the defendant members of the rating committee received copies of a number of documents, including the Suggested Criteria (Ex., P-7), "Mississippi Textbook Adoption," (Ex., D-13), summary evaluation forms for each book to be considered for adoption, and a list of all certified publisher's representatives who were the only persons authorized to present books to the rating committee members during the rating process.

 Under the schedule established by the Textbook Purchasing Board, the rating committee reports, otherwise known as the "ballots," and the accompanying summary evaluation forms were due to be received at the Office of the Textbook Purchasing Board from the rating committee members no later than October 23, 1974. During the interim between the meeting of August 28 and the deadline of October 23, the rating committee members received copies of the books to be evaluated and rated, either through the mail or by personal delivery from a publisher's representative. At various times during this interim period while the work of the rating committee members was being accomplished, publisher's representatives were making appointments with, and presentations to, the individual members of the rating committee for the purposes of relating pertinent facts about the book being presented and of answering any questions about the book which the rating committee member might have. During this period, the rating committee members rated and reviewed the books under consideration for adoption, including Mississippi: Conflict and Change.

 Approximately two weeks prior to the October 23 deadline for receipt of the "ballots" and summary evaluation forms, the Office of the Textbook Purchasing Board mailed to each member of the rating committee a "ballot" for each course of study for which books were to be rated and recommended for adoption, along with a Memorandum of Instructions for rating books (Ex., P-6). In evaluating and rating the books for adoption, including the books submitted for the course of Mississippi History, the members of the rating committee were guided by the documents previously mentioned furnished them by the Textbook Purchasing Board, especially the Suggested Criteria for Textbook Selection (Ex., P-7). The members of the rating committee completed their work, filled out their rating committee report and summary evaluation forms, and mailed them to the Textbook Purchasing Board in Jackson, Mississippi, for arrival on or before October 23, 1974. The staff of the Textbook Purchasing Board tabulated the results of the "ballots" mailed in by the rating committee members, and the Mississippi State Textbook Purchasing Board held a meeting on November 4, 1974, and adopted the recommendations of the rating committee by placing on the adopted list for the course of Mississippi History the book Your Mississippi by Dr. John K. Bettersworth. The Textbook Purchasing Board was precluded by provisions of state law from considering Mississippi: Conflict and Change for adoption, because that book failed to receive a recommendation from a majority of the rating committee members.

 One salient fact should be noted with regard to the rating process as to the books submitted for consideration in the course of Mississippi History. Each rating committee member was visited by a representative from Steck-Vaughn Company, publisher of Your Mississippi, for the purpose of presenting that book. This publisher's representative made a positive presentation of that book, and answered questions that the members of the rating committee had about it. The Steck-Vaughn representative left with each rating committee member, in manuscript form, a copy of a Teacher's Edition to accompany Your Mississippi. The Teacher's Edition which accompanies Your Mississippi was introduced into evidence in printed form by the defendants in this case (Ex., D-17). The Teacher's Edition of Your Mississippi is the same as the edition for use by students, except that the first 60 pages contain material to aid the teacher in teaching the course. The representative from Pantheon Books, a Division of Random House, also visited each member of the rating committee. This representative did not make a positive presentation of the book Mississippi: Conflict and Change. He stated to the rating committee members, Mrs. McElhaney, Miss Kyle, Mrs. Kennington, and Mr. Turnipseed that no Teacher's Edition would be available to accompany Mississippi: Conflict and Change. He stated to the rating committee member, Mr. Riales, that a Teacher's Edition was not then presently available, but would be available in the future.

 The plaintiffs, Dr. James Loewen and Dr. Charles Sallis, testified at the trial that a Teacher's Edition of Mississippi: Conflict and Change was available in manuscript form during the 1974 adoption period, but that it was not furnished to the publisher's representative who presented that book to the rating committee members.

 The statutes of the State of Mississippi, the rules and regulations of the Textbook Purchasing Board, and the testimony of Mr. W. A. Matthews, Executive Secretary of the Mississippi State Textbook Purchasing Board, make it clear that the only parties to a textbook adoption proceeding in Mississippi are: (1) the members of the various rating committees; (2) the certified publisher's representatives, who are the only persons authorized to make presentations of books to members of the rating committee; and (3) the Mississippi State Textbook Purchasing Board, the members thereof, its executive secretary, and staff.

 As has been noted, the two black members of the rating committee, Burney and Wash, rated and recommended the Loewen and Sallis text, Mississippi: Conflict and Change (1974). The five white members of the committee, Kyle, McElhaney, Riales, Turnipseed and Wilder, rated and recommended the Bettersworth text, Your Mississippi (1975) but failed to recommend the Loewen and Sallis text, Mississippi: Conflict and Change. The Textbook Purchasing Board had the statutory power to reject the recommendations of the rating committee and call for further recommendations, but was not empowered to adopt the Loewen and Sallis text, Mississippi: Conflict and Change (1974) because the book had not been recommended by the rating committee.

 Each rating board member was charged with the duty of making known to the purchasing board the basis of his or her acceptance or rejection of a textbook. The five members of the board who rejected the Loewen and Sallis text, Mississippi: Conflict and Change, had an obligation to state in writing his or her reasons for the rejection.

 The Textbook Purchasing Board furnished each rating committee member with a Summary Evaluation Form to be completed on each textbook submitted and to be returned to the board with the completed ballot representing such member's vote.

 The ballot and the summary evaluation forms on Your Mississippi and Mississippi : Conflict and Change by committeeman John M. Turnipseed, were introduced in evidence as Plaintiffs' Exhibit 14. A copy of this exhibit is attached as Appendix B and made a part of this Memorandum by reference.

 Each committee member was required to submit similar documents.

 Mr. Turnipseed's reason, as reflected by the summary evaluation form, for rejecting Mississippi : Conflict and Change was "It is my professional opinion that this book is "unsuitable' for classroom use, therefore, I cannot recommend it in any manner".

 Mr. Turnipseed's evaluation of the Bettersworth book Your Mississippi, was "average".

 Mr. Riales rated Your Mississippi as "high". In regard to Mississippi : Conflict and Change, Riales rejected the book. He identified the content of the book considered objectionable to him as "page 96-Last Paragraph; page 178-Picture at the bottom of the page". In explaining the effect the objectionable content he assumed to have on the learner, he stated

 
This is only two examples of many in the book. Continuous coverage of isolated incidents of the mis-treatment (sic) of slaves and blacks by whites could easily lead the readers to believe that all slaves and blacks were treated in the same manner. I feel that this book is too racially orienated and does not concentrate sufficiently on the areas as suggested in the criteria.

 Ms. Kyle did not give any reason on the summary evaluation form for Mississippi : Conflict and Change for her rejection of the book.

 Ms. Wilder's only comment on her summary evaluation form for Mississippi : Conflict and Change was given in responding to the request that she identify the content considered objectionable. There she entered on the form "none applicable at this grade level".

 Stating her reasons for rejecting Mississippi : Conflict and Change, Mrs. McElhaney, when requested to describe the effect that the objectionable content is assumed to have on the learner, stated:

 At trial, rating committee members advanced other reasons for rejecting Mississippi : Conflict and Change. As the trier of the facts, however, the court views the testimony of each member of the rating committee wherein reasons for rejection were given other than those reflected on the summary evaluation form, as an after-the-fact judgment.

 The court feels that if the reasons given at trial to support the ballots of the five rating committee members in rejecting Mississippi : Conflict and Change other than those reflected by the summary evaluation forms, had been substantial and played an important role in the rejection, such reasons would have been inserted in the summary evaluation forms.

 One reason for rejecting Mississippi : Conflict and Change given at trial was that the publisher did not furnish each rating member a teacher's edition, as required by the ...


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