ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Gibbons and Rosenn, Circuit Judges, and Shapiro,*fn* District Judge.
Dawn L. Boykins, a minor suing by Louis Boykins, Jr., her father and next friend, appeals from an order granting a final judgment in favor of the defendants on their motion for summary judgment. The defendants are a school district board of education, the district superintendent, and the coach of a drill team organized as a school activity. Boykins charged she was dismissed from the team because she was black. We reverse.
On May 4, 1976 the Boykins filed a verified Complaint alleging that Dawn, a black student attending the Ambridge Area School District high school, had on August 28, 1975 been dismissed as a member of the Bridger Belles, a drill team conducted as a school activity. The Complaint further alleged that although the ostensible reason for her dismissal was that, in violation of drill team regulations, she had missed practice for the sixth time, the actual reason for her dismissal was that she was black. It alleged, further, that she appealed to the School Board, which on September 9, 1975 ordered her reinstatement. Attached to the Complaint as Exhibit A is a copy of the School Board's September 10, 1975 decision, which notes an inconsistency in the method in which two cases of absence, involving one black student and one white student, were handled; a further inconsistency in the rules permitting excused absence for vacation but not for scheduled work; the fact that the school superintendent had ruled, following Dawn's fifth absence, that she would be in compliance if she attended all sessions of Band Camp practice, which she had done; and the fact that the sixth absence was not from a regularly scheduled practice session, but from one scheduled on only a few hours' notice and at a time when she was scheduled to work. The Complaint further alleges that on September 11, 1975, the Board, faced with a threatened resignation of Mrs. Mary Frances Buk, the coach/sponsor of the drill team, changed its position, withdrew its direction to reinstate Dawn, and ruled that the coach/sponsor had the prerogative of choosing her participants. It alleges, further:
The changing of the Board's position and the action of the coach/sponsor was done because plaintiff was black and even though all parties knew that white girls had been reinstated who actually missed six (6) days of practice.
The defendants' actions were alleged to be in violation of 42 U.S.C. § 1983 and § 1985. The only relief requested was damages.
In due course the defendants, the School District Board of Education, the Superintendent of Schools, and the coach/sponsor, Mrs. Buk, filed answers.
On June 30, 1977 Louis Boykins, Jr., was deposed. His deposition, on file, discloses that at one time the local chapter of the NAACP, concerned that the school did not select black cheerleaders or drum majorettes, suggested the formation of a drill team which would give girls of minority races greater opportunity to participate. At that time, according to his testimony, there were no black girls on the majorette squad or the cheerleading squad. When the drill team was formed Dawn tried out and qualified. Thereafter, according to Mr. Boykins, Mrs. Buk interrogated Dawn about the activities of the NAACP with respects to charges of discrimination in the selection of drum majorettes and cheerleaders. He described the interrogation as a grilling. Mrs. Buk, he testified, was also a coordinator of cheerleaders and majorettes. The drill team scheduled practices during the summer evenings when Dawn, like the other Boykins children, had a part time summer job. Boykins testified that Mrs. Buk caused other members of the drill team to check at Friendly Ice Cream to see if Dawn was actually working when she claimed to be. Eventually Dawn told her father that she had been threatened by Mrs. Buk with dismissal for missing practices, but disputed the number of times she actually had missed practice. Boykins met with Mrs. Buk, who was adamant in her position about attendance despite any conflict with Dawn's work schedule. Boykins then called the president of the school board, who in turn called the superintendent of schools, Dr. Vochko, who said "Well, tell Lou that any problem just as long as Dawn does not miss any practices for band camp, . . . (s)he should have no problem." Band Camp was a two week period of morning and afternoon sessions, all of which Dawn attended. On a Wednesday Mrs. Buk, at midday, came to Band Camp and told the drill team members that they would have to come to an additional practice session that evening, when, as Mrs. Buk knew, Dawn was scheduled to work. When his daughter asked him whether she should go to work Boykins, in reliance on what the superintendent had said about attending all Band Camp sessions, told her to do so. The next morning Dawn attended Band Camp, and at noon was told by Mrs. Buk that she was dismissed from the drill team. Boykins called Dr. Vochko, who, he says, instructed Mrs. Buk, and Mr. Tolfa, the band director, to put Dawn back on the team. However, when Dawn returned to practice she was excluded. Boykins also testified:
There was a young lady, Terry Kashuba, who had missed drill team practice during school. Mrs. Buk dismissed Terry Kashuba because of this. After Mrs. Buk dismissed Dawn, said she didn't want Dawn, she then brought Terry Kushuba back on the drill team, says, "You're back on."
Thereafter the school board meeting of September 10, 1975, referred to in the Complaint, took place, and Boykins was advised, first of the board's favorable decision and later of its change of position. By then school had reopened, and in the high school a regular activities period was scheduled, during which practice for activities such as band, football and drill team took place. For two or three weeks while the drill team ...