Last month, a celebrated, recently retired high school theater arts director filed a petition with the U.S. Supreme Court to review a labor dispute he has with Durham Public Schools (DPS).

Former Hillside High drama teacher Wendell Tabb, who retired this year after an acclaimed Tony Award–winning career spanning more than three decades, filed a petition with the nation’s highest court on June 3, after the U.S. Fourth Circuit Court of Appeals in Richmond and the U.S. Middle District Court in Greensboro both denied his claims that he was forced to work overtime without pay. Tabb also claims that race played a role in DPS’s refusal to compensate him. Tabb, in his complaint, has demanded damages of $40,800 per year.

His petition to the Supreme Court is a long shot.

According to the Judicial Learning Center, the court agrees to hear less than 1 percent of the 10,000 cases it receives each year and is “most likely to take cases that will affect the entire country, not just the individuals involved.”

It’s a chance that Tabb, who is African American, is willing to take. His petition asks the Supreme Court to determine if race was a factor when DPS refused to compensate him for work he performed, and if the board of education’s decision was in violation of Title VII of the Civil Rights Act of 1964 when the lower courts denied that the Durham School of the Arts’ (DSA’s) drama program was a comparative program to Hillside’s theater productions.

“We do just as many plays as Durham School of the Arts, if not more,” Tabb told the INDY this week. “I’m not trying to bash DSA. The schools are doing an excellent job. This is about equity for all programs. But if I’m having trouble with the level of success I’ve had, Lord knows what happens to the schools that don’t.”

Tabb is also asking the Supreme Court to determine if it is ever appropriate for public school officials to “negate” Fair Labor Standards Act compliance and not pay employees who work overtime.

Finally, Tabb wants members of a highly politicized conservative court to determine if it is “constitutionally equitable” for public schools to receive federal funding if the school systems “allow inequalities between employees who perform the same or similar extra duties”—in this instance theater directors and technical theater directors.

“The [DPS] board does not comment on pending litigation and speaks through its court filings,” William “Chip” Sudderth, the school system’s chief communications officer, replied when asked about Tabb’s petition to the Supreme Court.

As the INDY previously reported, the case dates back to 2017, when Tabb filed a federal lawsuit against DPS alleging racial discrimination and retaliation. Over more than a decade, he says, he was cheated out of tens of thousands of dollars in unpaid wages. This wasn’t merely the result of difficult school-funding choices, his lawsuit insists. Tabb says he was subjected to payback after he sued the school board in 2006 over the mistreatment of his son, who has cerebral palsy.

At the crux of Tabb’s lawsuit is his claim that in addition to serving as director of Hillside’s drama department, he also functioned as an unofficial, unpaid technical director, with a workload that included hanging lights, creating sound designs, and building sets.

Two members of a three-judge panel with the Fourth Circuit Court of Appeals denied Tabb’s claim on March 22.

Judge Paul V. Niemeyer, writing for the majority, noted that “over the years,” Tabb had asked the DPS board and Hillside High principals to provide him with a theater technical director to relieve him of the hours he has had to devote to technical issues when staging student performances. In making the request, Tabb noted that some of the other DPS high schools “had both a theater director and a … technical director, and he requested that Hillside High School be one of them.”

In upholding the U.S. Middle District’s dismissal, the Fourth Circuit opinion states that Tabb’s desire to create a premier high school theater program was pretty much his own fault—that is, DPS didn’t ask him to establish an award-winning, nationally recognized drama program whose students traveled all over the world.

Tabb made an “independent decision to produce high-quality plays,” and while his work was “laudable, [it] was a decision he made for the benefit of his students rather than a task he performed as a requirement of his position,” Niemeyer stated.   

The Fourth Circuit also agreed with the U.S. Middle District ruling that even if the school system’s refusal to pay Tabb a technical theater director supplement “could be considered an adverse action,” the retired teacher had not plausibly alleged that DPS had “denied him a technical supplement due to his race,” because he had not alleged “that a single white theater director was paid such a supplement at any time.”

Niemeyer, whose ruling was joined by Judge Julius Richardson, also agreed with the Middle District’s decision to exclude DSA “as a legitimate comparator for Tabb to demonstrate any discrimination,” because DSA is a specialized high school “for arts and drama,” while Hillside offers an International Baccalaureate magnet program.    

Tabb’s need for a technical theater director appeared obvious to even the most casual observer of the stage productions he mounted at the historically Black high school, one of only four in the state to survive desegregation, along with West Charlotte, E.E. Smith in Fayetteville, and Dudley in Greensboro.

In 1995, Tabb developed an international professional student exchange program that enabled his budding thespians to study and perform on six continents and all over New York and Los Angeles.

He also started a Celebrities in the Classroom program that allowed students to participate in acting workshops with some of the industry’s most notable artists. Over the years, Hillside drama students sat at the feet of Danny Glover, Bill Cobbs, Obba Babatundé, Phylicia Rashad, and Margaret “Shug” Avery; the likes of famed choreographer George Faison; and Hillside graduates such as fashion icon André Leon Talley and legendary gospel recording artist Shirley Caesar.

Along the way, Tabb’s cultivation of the theater discipline and his nurturing of aspiring artists yielded impressive fruit. His former students include Academy Award–winning film director Kevin Wilson Jr., actress April Parker Jones (who has a recurring role in the new Peacock drama series Bel-Air), Lauren E. Banks (who plays Siobhan Quays in the Showtime series City on a Hill), and Santron Freeman (a dancer who has worked with Beyoncé, Alicia Keys, and Mariah Carey).

Of his 2017 complaint, Tabb told the INDY that’s it’s no coincidence that Hillside’s student population is about twice as Black as the other schools: about 79 percent of Hillside students were African American during the 2016–17 school year, compared to about 41 percent at Jordan, 44 percent at Riverside, and 36 percent at DSA.

“Despite the success of the Hillside High School Drama Program,” Tabb’s complaint says, “[the school board has] failed to provide Hillside High School with the same level of staffing and funding that it provides at comparable drama programs in high schools that are not predominantly black.”

Tabb stated that he was “forced to do the work of two or three teachers in order to maintain the Hillside High School drama program, while white theater directors at white high schools with comparable theater programs have had two or more teachers assigned to assist them,” according to the Fourth Circuit’s majority opinion.

Tabb, while claiming he has not been compensated for extra-duty work, alleges that theater directors with similar programs were not asked to do this same type and volume of unpaid extra work or have been paid an extra-duty payment or a contractual payment for performing this type of work.

“Tabb attributed all of the disparate treatment alleged in his complaint to racial discrimination by the [DPS] School Board,” Niemeyer wrote.

In her dissent, Fourth Circuit judge Diana Gribbon Motz said the majority erred by dismissing Tabb’s claim for a financial supplement for his work as Hillside’s de facto technical theater director.

Motz also noted that in order to allege a civil rights “disparate treatment claim,” a school employee must plead that his employer “took an adverse action against him; namely, an action that adversely affects the terms, conditions, or benefits of [his] employment.”   

“Tabb alleges such an action,” Motz stated. “He alleges that, due to the [DPS] Board’s failure to hire a technical director, he regularly needed to perform significant additional work (managing ‘the lighting, sound, sets and other technical duties’ for student productions) to fulfill his own role in directing those productions.”

Motz would also reverse the U.S. Middle District Court’s decision to exclude DSA as a comparative program to Hillside’s drama department.

“Tabb alleges that the drama program at Hillside has become one of the premier high school drama programs in the United States and that Hillside has produced at least as many (and in most years more) theater productions than DSA,” Motz wrote. “It is thus reasonable to infer that, even though the school district has not specifically labeled Hillside as a ‘drama’ or ‘arts’ school, Hillside’s drama department would require a similar level of drama staffing as a school that has received such a label.” 

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