Elston v. Talladega County Board of Education Brief for Appellants

    4 >

In the

UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 92-6033

QUINTIN ELSTON, et al.,

Plaintiffs-Appellants,

vs.

TALLADEGA COUNTY BOARD OF EDUCATION, et al.

Defendants-Appellees.

On Appeal from the United States District Court 
for the Northern District of Alabama

BRIEF FOR APPELLANTS

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 

99 Hudson Street. 16th Floor 
New York. New York 10013 
(212) 219-1900

CLEOPHUS THOMAS. JR. 
P.O. Box 2303 
Anniston. AL 36202 
(205) 236-1240

JANELL M. BYRD 
1275 K Street. N.W.
Suite 301
Washington. D.C. 20005 
(202) 682-1300

Counsel for Plaintiffs-Appellants

Date: Mav 12. 1992



Elston v. Talladega Countv Board of Education, No. 92-6033

Gaines, Gaines & Gaines, Counsel for Defendants 

Ralph Gaines, Jr., Counsel for Defendants 

Beulah Garrett, Defendant

Damien Garrett, by parent/guardian Althea Garrett. Plaintiff 

Vernon Garrett, by parent/guardian Estella Garrett, Plaintiff 

Kereyell Glover, by parent/guardian Delilah Glover, Plaintiff 

Lance Grissett, Defendant 

Hon. James H. Hancock. Judge

Stephanie Y. Hill, by parent/guardian Connallv Hill, Plaintiff

Ernest Jackson, by parents/guardians Rollen and Helen Jackson, Plaintiff

Rayven Jackson, by parents/guardians Rollen and Helen Jackson, Plaintiff

Carla Jones, by parents/guardians Willie and Bertha Jones, Plaintiff

Danielle Jones, by parent/guardian Donald Jones, Plaintiff

Paul Jones, by parents/guardians Willie and Bertha Jones, Plaintiff

Gay Langley, Defendant

Dan Limbaugh, Defendant

Datrea Morris, by parent/guardian Robert Morris, Plaintiff 

Jeffery Morris, by parent/guardian Lela Morris. Plaintiff 

Larry Morris, Defendant

Quentin Morris, by parent/guardian Robert Morris, Plaintiff

C-2 of 3



i

Statement Regarding Oral Argument

Plaintiffs-Appellants respectfully request oral argument because the issues raised in 

this appeal are factually complex and of substantial importance. They involve challenges 

to racially segregative and discriminatory practices in the Talladega County, Alabama public 

school system, especially as such practices relate to school construction, school closings, 

attendance zone boundaries and interdistrict transfers.

1



PAGE

Summary of the Argument .................................................................................................  32

I. The District Court Erred in Finding No Discrimination
on Counts II and III ....................................................................................................  32

II. The District Court Erred in Dismissing Count I
(Breach of Contract) .................................................................................................... 33

III. The District Court Erred in Dismissing Count IV
(First Amendment) ......................................................................................................  33

IV. The District Court Erred in Dismissing Plaintiffs’ State
Law Claim (Right to Inspect and Copy Public Documents) ................................ 33

V. The District Court Erred in Denying Plaintiffs’ Request
to Supplement The Record on Remand ..................................................................  34

A rgum ent................................................................................................................................. 34

I. The District Court Erred In Finding No Discrimination.......................................  34

A. Legal Standards......................................................................................................  35

1. Fourteenth A m endm ent................................................................................  35

2. Title VI and Title VI Regulations ...............................................................  35

3. Discoverable and Admissible Evidence........................................................ 36

4. Application of These Legal Standards ........................................................  37

B. Repeatedly Closing Historically Black Schools While Maintaining and 
Enhancing Historically White Schools Denies Black Citizens Equal 
Treatment In Refusing to Provide Them The Same Benefits Afforded
White Citizens ......................................................................................................  38

C. Closing Hannah Mallory And Reassigning The Majority Of Its Students
To The Training School Via A Non-Contiguous School Zone Which 
Required The Use Of Temporary Classrooms Is A Classic 
Discriminatory Practice ........................................................................................ 45

iii



TABLE OF AUTHORITIES

Adams v. Board of Public Education.
770 F.2d 1562 (11th Cir. 1 985 ).....................................................................................  40

Alexander v. Choate. 469 U.S. 661 (1985) ....................................................................... 36

Anderson v. Bessemer City. 470 U.S. 564 (1985)...............................................................  31

Aro Corporation v. Allied Witan Company. 531 F.2d 1368
(6th Cir.), cert, denied. 429 U.S. 862 (1976) .............................................................  50

* Arvizu v. Waco Independent School District.
495 F.2d 499 (5th Cir. 1974)..........................................................................................  38

Bankers Mortgage Company v. United States. 423 F.2d 73
(5th Cir.), cert, denied. 399 U.S. 927 (1970) ............................................................. 51

Belcher v. Mansi. 569 F. Supp. 379 (D.R.l. 1983) ...................................................... 33, 52

* Bell v. West Point Municipal Separate School District.
446 F.2d 1362 (5th Cir. 1971)......................................................................................... 38

Bossier Parish School Board v. Lemon. 370 F.2d 847
(5th Cir.), cert, denied. 388 U.S. 911 (1967) ............................................................. 50

Brice v. Landis. 314 F. Supp. 974 (N.D. Cal. 1 9 6 9 )..........................................................  30

Bronson v. Board of Education of Cincinnati. 525 F.2d 344 
(6th Cir. 1975), cert, denied. 425 U.S. 934 (1976) ........................................................  37

Bronson v. Board of Education of Cincinnati. 687 F.2d 836
(6th Cir. 1982) ....................................................................................................................... 37

* Brown v. Board of Education. 349 U.S. 294 (1955) ..........................................................  37

Clemons v. Board of Education of Hillsboro. 228 F.2d 853
(6th Cir. 1956) ....................................................................................................................  46

CASES PAGE

* Authorities primarily relied upon.

v



CASES PAGE

Lee v. Macon County Board of Education. 267 F. Supp. 458 
(M.D. Ala. 1967), affd sub, nom.. Wallace v. United
States. 389 U.S. 215 (1967)...............................................................................................6

* Lee v. Macon Countv Board of Education. 448 F.2d 746
(5th Cir. 1971)......................................................................................................  38, 39, 46

Lee v. Macon County Board of Education. tTalladega Countvl.
No. 604-E (M.D. Ala. Feb. 3, 1970) ...................................................................................6

Los Angeles Branch. NAACP v. Los Angeles Unified School
District. 750 F.2d 731 (9th Cir. 1985) .........................................................................  36

Meetings and Expositions. Inc, v. Tandy Corporation,
490 F.2d 714 (2d Cir. 1974) ..........................................................................................  50

Nye & Nissen v. United States. 336 U.S. 613 (1949) ........................................................  35

Phillips v. Smalley Maintenance Services. Inc..
711 F.2d 1524 (11th Cir. 1 9 8 3 ).............. ...............................................................  31, 33

Riddick v. School Board of Norfolk. 784 F.2d 521 (4th Cir.), 
cert, denied. 479 U.S. 938 (1986) .....................................................................................  36

Singleton v. Jackson Municipal Separate School District. 419
F.2d 1211 (5th Cir. 1969), cert, denied. 396 U.S. 290 (1970).......................................  47

Spangler v. Pasadena City Board of Education.
311 F. Supp. 501 (C.D. Cal. 1970) ..............................................................................  46

United Mine Workers v. Gibbs. 383 U.S. 715 (1966)........................................................  53

United States v. Board of School Comm’rs. 332 F. Supp. 655
(S.D. Ind. 1971) .................................................................................................................. 46

* United States v. Lowndes County Board of Education.
878 F.2d 1301 (11th Cir. 1989).........................................................................  47, 48, 49

United States v. Timmons. 672 F.2d 1373 (lltli Cir. 1985)..............................................  51

* Authorities primarily relied upon.

vii



In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 92-6033

QUINTIN ELSTON, et al„

Plaintiffs-Appellants,

vs.

TALLADEGA COUNTY BOARD OF EDUCATION, et al.

Defendants-Appellees.

On Appeal from the United States District Court 
for the Northern District of Alabama

BRIEF FOR APPELLANTS

Jurisdiction

Subject-matter jurisdiction existed in the district court pursuant to 28 U.S.C. §§ 1331 

and 1343(a)(4), as this action was brought to redress the deprivation of constitutional and 

statutory rights. Jurisdiction exists in this Court pursuant to 28 U.S.C. § 1291. The district 

court issued a final judgment on January 7, 1992 (R2-128).

Issues Presented

1. Whether the district court erred in ruling with respect to Count II under the 

Fourteenth Amendment and Count III under Title VI of the Civil Rights Act of 1964, 42 

U.S.C. § 2000d, and the regulations promulgated thereunder, that plaintiffs had failed to 

prove either discriminatory intent or effect regarding, inter alia, the Board’s school closing 

and new construction plan and interdistrict transfers.

2. Whether the district court erred in dismissing Count I of the Complaint for



Instead, however, Judge Hancock ruled on the motion on December 29, 1988, without 

providing plaintiffs an opportunity to respond. (See Rl-14). The court summarily 

dismissed Count I (Breach of Contract), Count IV (First Amendment), and Count V 

(Alabama Public Writings Law) of the Complaint (Rl-13). The district court also rejected 

plaintiffs’ motion for a preliminary injunction and requests for expedited discovery to 

support the injunction motion, and ruled that all evidence of events occurring prior to 

March 13, 1985, the date of dismissal of a related case, would be inadmissible (Rl-13).

Thereafter, the district court denied admission pro hac vice of counsel for plaintiffs 

from the NAACP Legal Defense Fund on the ground that a victory for plaintiffs would 

result in an undue burden on the taxpayers of Talladega County (see Rl-16, 17, 18, 19, 20). 

The court subsequently allowed one pro hac vice admission (Rl-30). In June of 1989, the 

district court denied plaintiffs’ motion to add the Talladega City Board of Education as a 

party on the interdistrict transfer claim on the ground that the motion (filed May 26, 1989) 

was after the district court’s May 5, 1989 deadline for adding parties (Rl-63).

The district court refused to require the defendants to provide any discovery on 

matters prior to school year 1985-86 (Rl-49-2) and ruled prior to trial that such evidence 

was inadmissible (Rl-13-3). Without announcing a reversal of these rulings, the court 

allowed both sides at trial to put in evidence regarding matters prior to 1985. At trial on 

Counts II and III, plaintiffs challenged

a) a pattern of closing or reducing the grade structure of historically black 
schools while maintaining and enhancing historically white schools (reflected, 
plaintiffs alleged, in recent new construction and expansion of a white school 
[Idalia Elementary which had burned] and concomitant closing of the 
elementary grades of a historically black school [Talladega County Training 
High School]1), thus denying black citizens the benefit, enjoyed by whites, of

'The School served grades K-12. despite its "High School" name.



moot. Order of April 30, 1991 (Aplts. App. at 6A).

On remand the district court admitted plaintiffs’ counsel and added the Talladega 

City Board of Education as a party defendant (R2-111). The court, however, limited the 

consideration of additional evidence to that that plaintiffs could prove "only because of the 

presence in the lawsuit of the Talladega City Board of Education," (R2-114-2), or "only by 

reason of the assistance of Julius L. Chambers and/or Norman J. Chachkin." Id- See also 

R2-117; R2-125. The court refused to reconsider its initial decisions to dismiss Counts I, 

IV, and V, or its limitation on discovery regarding events prior to the 1985-86 school year. 

The court also ruled that it would not receive evidence of events occurring after the 1989 

trial (R2-114: R2-117; R2-125).

Plaintiffs readily conceded that there was no evidence available in the categories 

identified by the district court and that discovery would be futile and a hearing unnecessary 

(R2-126). On January 7, 1992, the district court readopted its Findings of Fact and 

Conclusions of Law entered September 19, 1989 (R2-128; R2-93). Thus, the case is back 

before this Court in essentially the same posture as in the prior appeal. The appeal 

involves in significant measure a challenge to the ultimate tactual conclusions drawn bv the 

district court on a record that is comprised overwhelmingly of stipulated facts and 

uncontroverted oral or documentary evidence.

Origins of this Litigation

In 1963, black parents in Alabama filed Lee v, Macon County Bd. of Educ. 

[hereafter cited as Lee], Civ. No. 70-025TS, on behalf of black school children seeking to 

desegregate Alabama s public schools. The Talladega County Board of Education later 

became a defendant in that action, and in 1967, a three-judge court held that defendants 

were operating an unconstitutional, segregated school system and ordered state-wide

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that appeal in August of 1989, No. 89-7104, but continue to  seek appropriate alternative 

relief in this action, such as the adjustment of discriminatory attendance zone boundaries 

and a prohibition on segregative interdistrict transfers.

Facts Relevant To The Present Action

Most of the facts enumerated in this section of the brief are uncontested. The 

exceptions are identified below as are instances where the district court made factual 

findings that are contrary to the only relevant evidence of record on the subject. 

Additional evidence relevant to the trial court’s "ultimate" finding that there was no 

discrimination is discussed in the Argument, infra.

1- Schools Are Important and Beneficial Community Institutions

It is undisputed in this action that schools are important and beneficial community 

institutions. The Talladega County Board of Education recognized the benefit that a 

school serves in a community in passing its "Community Education" resolution on July 22, 

1985 (PX-37 [July 22, 1985 Board minutes]). There the Board recognized that maximizing 

use of existing facilities precludes unnecessary costs for other agencies to provide needed 

facilities for community services. The Resolution states that local citizens and community 

leaders have expressed desires to use school facilities effectively in order to meet 

educational, cultural, recreational and social needs in their communities. Thus the Board 

urged administrators of each school to try to meet the needs of the community and to 

involve local citizenry in utilizing facilities under their jurisdiction (Rl-83-1,2 HH 1,2).

- ■  The School Closing and New Construction Plan

The total student population for the Talladega County school district in 1989 was 

8496, of which 43% was black and 57% was white (PX-14 [1989 statistics]). At the time

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facility burned down in 1986; the school thereafter operated out of portable classrooms 

located at the site (Rl-83-3 H 9). After the fire, the Board temporarily transferred the fifth 

and sixth grades at Idalia to Drew Middle School (Rl-83-4 11 14). For the 1988-89 school 

year the student population of Idalia was 46% black (K-4) (Rl-83-3 11 9). Under the school 

system’s 1988-89 attendance zones, students completing the sixth grade at Idalia were zoned 

to attend Drew Middle School for grades 7-8 and Lincoln High School for grades 9-12 (Rl- 

93-3 H 5; PX-16). For school year 1988-89, Drew Middle School had a black student 

enrollment of 37% and Lincoln had a black student enrollment of 47% (Rl-83-4 11 14).

The School Board's plan challenged in this action called for the discontinuance of 

grades K-6 at the Training School, the closure of the Jonesview Elementary School, and 

the construction of a new consolidated elementary school immediately adjacent to the 

burned Idalia school (R2-93-2 11 1; Rl-83-3 11 12). Areas previously assigned for grades K-6 

to the Training School, Jonesview, and Idalia were to be assigned to the new school, named 

the "Stemley Bridge Road School," (id.). Plaintiffs did not object to the consolidation of 

the elementary grades; they objected to the site selection for the consolidated school which 

required eliminating grades K-6 at the Training School.

The Board stated that it planned to spend $500,000 to renovate Talladega County 

Training School for continued use as a grade 7-12 facility (Rl-93-4 H 6), to which students 

residing in the Jonesview and Talladega County Training School elementary grade zones 

would be assigned for grades 7-12 (R3-301 [Grissett]; Rl-83-3 11 13).

After it was clear that the new elementary school could not be stopped, plaintiffs 

urged the Board to adopt attendance zones for grades 7-12 at the Training School that 

would be the same as those planned for grades K-6 at the new school (so that the 

attendance areas assigned to the Stemley Bridge Road School [former Idalia, Jonesview and

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that after trial Superintendent Grissett did not recommend the attendance zones he 

testified to at trial and demonstrated to the trial court in DX-30. Instead, when the Board 

adopted new attendance zones it rejected plaintiffs’ request to extend the Training School’s 

northern border to make it co-extensive with the elementary zone created for the K-6 

students attending the Stemley Bridge Road Elementary School (this would have required 

adding the former Idalia zone, plus a northern extension of that zone made by the Board 

after trial). See R2-116-Exhibit B (maps showing post-trial zone adjustments); Aplt. App. 

at 55, 57. This Court denied plaintiffs' motion to supplement the record on appeal as moot 

at the time it vacated the district court's 1989 judgment and remanded for further 

proceedings. (Aplts. App. at 6A). On remand, plaintiffs specifically requested that they 

be allowed to supplement the record with this evidence of post-trial zone adjustments (R2- 

123). The district court rejected that request without asserting a reason other than its 

conclusion that the remand did not contemplate consideration of such additional evidence 

and that the court "views as appropriate the four-year time frame." (R2-124).

3. Pattern of School Closings in Talladega County

The controversy presented in this action is rooted in the longstanding position of the

Talladega County Board of Education that in desegregating the school system, white

children ought not be required to attend formerly or presently majority-black schools. In

submitting its desegregation plan to the district court in 1970, the Superintendent of the

Talladega County School System, J.R. Pittard, stated:

I am sure you realize that the implementation of a plan to abolish the dual 
school system is more difficult in some school systems than in others because 
of the racial composition of the school system. It is anticipated that the 
implementation of the plan in the Talladega County School System will be 
difficult because of the size of our Negro population. Implementation of the 
plan in the Talladega County School System will require us to send white 
students to all Negro Schools with the exception of one school. Our problem

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Mignon, Nottingham, Ophelia S. Hill, Phyllis Wheatley, R.R.-Moton (subsequently renamed 

Sycamore), and the Talladega County Training School (DX-4). In 1989, there were nine 

historically white schools providing elementary education (Estaboga and the elementary 

division of Munford having been closed (PX-14)), and only three historically black schools 

providing elementary education -  Hill, Moton (grades 4-8), and the Talladega County 

Training School (PX-14). One historically black school, Charles R. Drew, now serves 

grades 5-8, and one new school serving the same grades — Childersburg Middle School 

(PX-14) — was constructed at the site of a historically white school (R4-548 [Woods]).

Prior to implementation of the School Board's school closing and new construction 

plan, the Talladega County Training School was the only one of the eight historically black 

schools extant in the County in 1968 that remained open and unchanged in grade structure. 

Now its grade structure has been reduced to grades 7-12. (Rl-83-2 H 3).

The district court’s Findings of Fact expressly refused to consider the evidence on 

school closings on the asserted ground that plaintiffs made no proffer of these facts, as they 

had indicated they would in their proposed factual findings (R2-93-13). Plaintiffs pointed 

out in their Motion to Alter or Amend the Judgment (R2-95-l,2), which was denied, that 

no proffer was made because the evidence was admitted at trial in DX-4, which lists the 

schools operated in 1968 along with their grade structures and racial compositions, and PX- 

14, which lists the schools, grade structures and racial compositions for school year 1988-89; 

Mr. Elston and Mr. Woods also testified on the issue. (R3-42-44, 93-94; R5-553-54). 7

7Mark Linder, a historically white school, appears to have been consolidated with a 
historically black school R.R. Moton under the name of Sycamore, with Linder serving 
grades K-3 and Moton serving grades 4-8; however, without discovery plaintiffs were unable 
to confirm this information. (See PX-19 at 28-29). Linder is included in the total of nine 
historically white schools providing elementary education and Moton is included in the total 
of three historically black schools providing elementary education.



(PX-14[1984-85 statistics]). After dismissal of Lee, Superintendent Grissett subdivided the 

Hannah Mallory attendance zone into three parts after its closure. One section was 

assigned to the Jonesview zone, one to the Childersburg zone, and one section was assigned 

to the Talladega County Training School zone (PX-15; PX-16; R2-233 [Grissett]). The 

reassignment plan required the majority of students from Hannah Mallory, who were all 

black, to attend the Training School (R4-493 [Romane]; R2-93-6 11 13).

The new zones affected black enrollment at the receiving schools in the 1985-86 

school year as follows:
Enrollment

School and 1984-85 1985-86
grades served White Black White Black

Childersburg Elementary (K-4) 176 134 168 147
Phyllis Wheatley Middle (grades 5-6 only) 218 152 194 158
Jonesview Elementary (K-6) 71 85 70 116
Talladega Country Training (K-6) 0 134 3 236

PX-14 [compare 1984-85 and 1985-86 statistics]. Thus, while black student enrollment 

during the 1985-86 school year remained relatively stable at Childersburg Elementary and 

Phyllis Wheatley, and increased at Jonesview (which was 55% black in school year 1984-85), 

the largest and most significant increase in students was at the Training School, which 

received the majority of the reassigned children. This influx required the use of portable 

classrooms at the Training School to accommodate the incoming students (R4-493-94 

[Romane]; R2-93-6 H 15), and significantly increased the concentration of black students 

in an already racially isolated school (R2-93-6 H 15). Some students could have avoided 

assignment to this racially isolated school by use of the majority-to-minority transfer 

provisions in the Board’s desegregation plan (PX-49 [Feb. 3, 1970 court order at 4]). 

However, the Board has not advertized the availability of the majority-to-minority transfer 

option (R2-93-13 U 43), and the provision has been rarely used (R3-261 [Grissett]).

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been an integrated school located in a predominately black community (R5-548 [Woods]). 

The district court’s ruling that the Wheatley school was simply "relocated" (R2-93-4 H 9), 

is inconsistent with the Superintendent's acknowledgement that the Wheatley school was 

"closed" (R3-237 [Grissett]), and that the school building now functions as a community 

center, infra at 18. Although the Board's Petition to the Court identified the Childersburg 

High School as a priority for replacement that facility was never closed nor was a new high 

school built. In fact, neither plans for replacement nor major renovation of the 

Childersburg High School were included in the Board's master plan for capital 

improvements (PX-41) or its Capital Outlay Summary (PX-42 [Childersburg Phase 1 is the 

new middle school, see PX-40]).

There was substantial opposition in the black community to closing Phyllis Wheatley 

and locating the new middle school in a predominately white community. Mr. Charles 

Woods,8 testified that members of the black community did not learn of the decision to 

close the school until after the site selection and plans for new construction had already 

been made and that a group of seventy-five to one hundred black people in the area 

opposed the closing of the school (R5-546 [Woods]). The district court's finding that some 

black people supported the plan (R2-93-17 11 13) is totally unsupported by record evidence. 

Mr. Woods testified that he opposed the plan because he believed it was racially motivated 

given the pattern of black school closings and the selection of a site in a predominately 

white community (R5-548 [Woods]). He asked to be allowed to meet with the School

8Mr. Woods is a City Council Member in Childersburg and a member of the Alabama 
Judicial Compensation Commission. He is also the President of the local office of the 
NAACP, the Alabama Improvement Association, the Alabama Democratic Conference and 
the Southern Coalition. (R5-545 [Woods].)

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Grissett testified that as a matter of educational policy the Board did not want elementary 

students at the same site as junior high and high school students (R4-317-18 [Grissett]), and 

therefore had chosen the Idalia site over the Training School location.

The district court rejected the Board's assertion that there was not adequate 

property for expansion of the Training School. The court held that "[tjhere is property 

adjacent to the Talladega County Training School which if acquired by gift, purchase or 

condemnation, would have been suitable for expansion. This includes property owned by 

members of the Dumas family and the Lawson family." (R2-93-7 11 19). A subsequent 

finding by the district court that "adequate land consisting of a minimum of 15 acres was 

not readily available" (R2-93-17 11 16) is contradictory and inexplicable. The finding that 

there was property available is amply supported by record evidence, including testimony by 

Lawrence Dumas and Fred Lawson.

Mr. Dumas testified that members of his family owned approximately forty acres of 

land across the road from the Training School (see PX-17, property located next to Wesley 

Chapel, north of the school, see PX-48) (R4-476 [Dumas]), and perhaps also some property 

on the same side of the road as the school and that he had discussed with Mr. Stamps, 

principal of the Training School, the possibility of transferring or selling some land to the 

Talladega County Board of Education for the school (id. at 477; see also PX-48).

Q. And what did you tell him?
A. I told Mr. Stamps that the Talladega County Board of Education had the 

power of imminent domain and could take whatever the property they 
wanted and that if he would have Mr. Gaines, the county board’s attorney, 
get in touch with me giving me a survey, showing precisely what he wanted, 
I would be glad to discuss it with Mr. Gaines on behalf of my children.

Q. Discuss what?
A. What they wanted to acquire and the reasonable value of it.

(R4-477-78.) This is confirmed by Mr. Stamps' letter to Dr. Grissett reporting that Mr. &

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"testimony" on this came from the Board’s attorney. Mr. Lawson testified that he "was at 

school in Chicago" and "did not know" what his grandfather had said, although he admitted 

that he "probably" said it (R3-198 [Lawson)). He testified, however, that his grandfather 

had died in 1967 — twenty-two years earlier — (R3-203), and that it would not be correct 

to assume that his family would not sell property to the Board (R3-198-99 [Lawson]).

Although no evidence was introduced to support the Board’s assertion that all the 

existing space at the Training School, which had been used for K-6 and 7-12 students, was 

necessary for the renovation for grades 7-12, the Court accepted the assertion as true. 

Plaintiffs urged that even if this were true, it would not have precluded locating the 

consolidated school at the Training School site. The district court found that the cost of 

constructing a new elementary school to serve 550 students would be the same whether 

constructed at the Idalia site or the Training School site (R2-93-4 H 8). The district court 

also credited the district’s "educational policy" justification, asserted for the first time during 

the trial. See Argument infra, pp. 42-46.

5. Barriers to Participation Bv Black Parents In School Board 
Decision-Making

a. Structural Barriers to Participation bv Blacks

Superintendent Grissett admitted that race affects almost every aspect of life in 

Talladega County (R3-264 [Grissett]). Prior to December of 1988, when the decisions 

challenged in this action were made, the Board of Education was comprised of five white 

persons.9 The Board acknowledges that the members were elected under an at-large 

voting scheme which diluted black voter strength and as a result no black person had ever 

been elected to serve on the Board. (PX-37 [Board Resolution of April 6, 1987]). Nor had

9Gay Langley, M.R. Watson. Joseph Pomeroy. Larry Morris, and Dan Limbaugh.

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A Board resolution adopted May 12, 1988, prohibits~the recording "in any manner" 

of its meetings (Rl-83-7 11 34). Plaintiffs challenged this resolution in Count IV as violative 

of the First Amendment and a barrier to participation in Board proceedings.

b. Specific Barriers Plaintiffs Faced in Participating In the
Process Leading to the Challenged Decisions By the Board

In June of 1987, the Board approved the purchase of property for construction of 

the new 500 pupil elementary school (the Stemlev Bridge Road School)(Rl-83-5 11 20: PX- 

37 [June 1987 minutes]). The June 1987 decision to construct a new school for 500 pupils 

necessarily meant that the Board had decided as of that time not to expand the Training 

School elementary division to accommodate the 500 students. By October 7, 1987 the 

Board had taken steps to obtain property next to the Idalia school for the new construction. 

The Board purchased title insurance on the Juanita Hand property, which is immediately 

adjacent to the Idalia Elementary School off of Highway 34 (Rl-83-5 H 21), and in 

November 1987 took further steps to finalize the transaction (Rl-83-5 HU 22, 23 ; PX-43 

[composite exhibit]; see also R1-S3-6 11 25). On December 8, 1987, Superintendent Grissett 

notified the Alabama State Department of Education that the Board intended to build a 

"[njew elemjentary] facility off of Highway 34 in Talladega to replace Idalia, Jonesview, and 

the Talladega County Training School elementary" facilities (PX-44; Rl-83-5 11 24).

After seeing bids in the newspaper for school renovations that did not include the 

Training School, which was deteriorating and badly in need of renovation, plaintiffs became 

concerned that the Board was neglecting the Training School and perhaps planning to close 

it (R3-8, 9 [Elston]). On January 21, 1988. Mr. Augustus Elston, lead plaintiff in this case, 

sent a letter to Superintendent Grissett stating that concerned parents with children in 

attendance at the Training School were requesting permission to be heard at the next

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decided to make a third attempt. This time they wrote to Dr. Morris, President of the 

Board, and sent copies to Dr. Grissett and the Board members (PX-4). A group of ten to 

fifteen individuals participated in drafting the February 9, 1988 letter (R3-18 [Elston]), 

complaining about an atmosphere of racism and racially prejudiced occurrences, and 

expressing concern that the Training School had been marked for closure and been 

excluded from recent planning for facility improvements (R2-93-9 H 25; R3-17-19 [Elston]).

Dr. Morris responded to Mr. Elston’s letter of February 9, on February 13, 1988, 

stating that he had no knowledge of plans to close the Training School. He did not 

disclose the Board's plans to close grades K-6 of the Training School. (Rl-83-6 11 30; PX- 

5.) Mr. Elston testified that Dr. Morris’s letter was confusing to him given his belief that 

approval had already been given to build the new school and rumors that Jonesview and 

the elementary section of the Training School were to be closed (R3-19-20 [Elston]).

On February 22, 1988, Mr. Elston again wrote Dr. Morris, requesting a copy of the 

Board’s Desegregation Plan and subsequent compliance and status reports (Rl-83-7 U 31; 

PX-6). There was no response to this letter (Rl-83-7 H 31). In an effort to gain 

information regarding the student and faculty assignment at Idalia, Jonesview. and the 

Training School, the Concerned Parents group thereafter wrote to the principals of three 

schools requesting student and faculty assignment data (Rl-83-7 U 33; PX-7; PX-8; R3-22- 

22 [Elston]). None of the requested information was provided (Rl-83-7 11 33). The only 

response was from Mr. Stamps, principal of the Training School, stating that he could not 

release the information (R3-22 [Elston]).

On March 22, 1988, the State Department of Education, notified Superintendent 

Grissett that it had received schematic plans for the proposed construction of a new 

elementary school for grades kindergarten through six, "to serve approximately 550 pupils

- 25 -



Board (PX-47), that "[t]here are no written descriptions of the Board’s plans or proposal 

for closing, changes in use o[r] grade structure, renovations or new construction" (PX-10 

at 3). Plaintiffs’ counsel also requested a copy of the State Board of Education’s Facilities 

Reports for the past two years (PX-9). Although the Facilities Survey for School Year 

1986-87, the only one conducted by the State during this time period, (PX-19) was hand 

delivered to Superintendent Grissett on October 26, 1987 (R4-351 [Higginbotham]), 

plaintiffs were informed in the June 23, 1988 letter that the report had not been received 

and that it would be forwarded later (PX-10-3).

The Board concedes that the Superintendent did not attend any PTA meetings at 

the Training School to inform the parents of the Board’s plans with respect to school 

closings (Rl-83-9 11 41), although he did attend PTA meetings at both Jonesview and Idalia 

to inform those parents of the Board’s plans (Rl-83-9 11 41). Ms. Janice Truss, president 

of the Talladega County Training High School Band Boosters and program Chairperson 

for the PTA (R4-444 [Truss]), testified at trial that Dr. Grissett had not attended a PTA 

meeting at the Training School in the past three years and that there had been no 

presentation by anyone at a PTA meeting concerning the closure of any part of the 

Training School (R4-445 [Truss]). Efforts to obtain information from the principal of the 

Training School also proved futile. Mr. Stamps informed Mr. Elston that he had no 

knowledge of the Board’s plans (R1-S3-9 U 42). Ms. Truss testified that Mr. Stamps 

showed her the renovation plans in June of 1989 when she specifically asked to see them 

after noticing them in his office; however, she was instructed not to discuss the plans (R3- 

445-46). Mr. Elston also testified that there had been no notice of the Board’s plan to 

select a site for the new school or to close the elementary section of the Training School 

(R3-49-50).

- 27 -



1984-85 through 1988-89 show an average of 68 white students per year, while the Training 

School, to which Jonesview students are assigned for grades 7-12, has an average of 17 

white students per year in grades 7-12 (PX-14). Interdistrict transfers by white Jonesview 

students avoiding the Training School were documented by the Jonesview PTA President, 

Mrs. Jones (R3-113-15 [Jones]; PX-35).

The district court found that "[m]anv of the white students are likely avoiding 

historically black Talladega County Training School" (Rl-93-11 11 36). This is not a new 

circumstance (Rl-93-10 H 30). On April 19, 1979, the Justice Department notified counsel 

who represented both the Talladega City Board of Education and the Talladega Countv 

Board of Education that it believed the Talladega City School System was violating a 

provision in its school desegregation order that prohibited transfers where the cumulative 

effect would reduce desegregation in either district (Rl-93-11 H 33; PX-29). Following a 

request by the FBI in July of 1979, prompted by complaints from community members (Rl- 

95 Attach. A), the County School District determined in August of 1979 that there were 

over 200 children, the majority of whom were white, residing in the County but attending 

the Talladega City Schools (PX-30). Dr. Grissett agreed that assuming that these children 

stayed in the City Schools, that some (those in the lower grades in 1978-79) would have 

graduated as recently as the 1989 school term (R2-257 [Grissett]).

The Justice Department apparently failed to follow up on this information and there 

is no indication from the documents or the Docket Sheet in Lee (Aplts. App. at 1) that 

private plaintiffs were notified of the information in PX-30. Nor did Talladega County 

officials attempt to stop the zone-jumping. Dr. Grissett testified that after the zone­

jumping was confirmed in 1979 he did not contact any of the parents of the children going 

out of zone, nor did he contact the City school district to try to stop these transfers (R3-257



an effort to halt these annexations (Rl-83-10 11 52; PX-31)._ The schools in the southern 

portion of the County closest to Svlacauga City all have consistently had majority white 

enrollments during the period of the attempted annexations (Rl-83-11 11 54).

In 1986, when the City of Sylacauga again sought to annex portions of the Talladega 

County School District, the Talladega County Board of Education passed a resolution 

authorizing the Superintendent, together with the Board's attorney, to take all appropriate 

action to prevent the annexations (Rl-83-11 H 53; PX-37 [Board Minutes from January 30. 

1986]; PX-39).

In their Offer of Proof on remand, plaintiffs submitted that the Talladega City Board 

of Education had approximately 350 out-of-district students, that the majority of these 

students were white and that Talladega City had annexed three heavily white areas for the 

purpose of allowing students in these areas to attend legally the City School System (R2- 

123-6-9 and Exhibits 1-10 at Tab 2). The district court refused to allow this evidence to 

be introduced in the record (R2-125; R2-127).

Scope of Review

The district court's factual determinations are reviewed under the clearly erroneous 

rule set out in Fed. R. Civ. P. 52(a). The ultimate inquiry is whether the "reviewing court 

on the entire evidence is left with the definite and firm conviction that a mistake has been 

committed." Anderson v. Bessemer City. 470 U.S. 564, 573 (1985)(quoting United States 

v. United States Gypsum Co., 333 U.S. 364 (1948)).

The district court’s dismissal of Count's 1 and IV. presumably under Fed. R. Civ. P. 

12(b)(6) for failure to state a claim, are reviewed de novo. Refusal to exercise pendent 

jurisdiction over the state law claim (Count V) is reviewed for an abuse of discretion. 

Phillips v. Smallev Maintenance Services. Inc.. 711 F.2d 1524, 1531 (11th Cir. 1983).

- 31 -



district transfers — the absence of the Talladega City Board of Education as a party — is 

no longer available, the district court refused to grant relief. This clearly is reversible error.

II. THE DISTRICT COURT ERRED IN DISMISSING COUNT I (BREACH 
OF CONTRACT!

The district court dismissed the breach of contract claim on ground that any such 

claim must be pursued in the litigation in which it was created. While that may be common 

practice, it is well-established that claims arising under contractual agreements may be 

pursued in separate litigation. Fairfax Countvwide Assoc, v. County of Fairfax, 571 F.2d 

1299, 1302 (4th Cir.), cert, denied. 439 U.S. 1047 (1978).

III. THE DISTRICT COURT ERRED IN DISMISSING COUNT IV (FIRST 
AMENDMENT!.

The burdens on plaintiffs’ First Amendment rights caused defendants’ prohibition 

on the recording "in any manner" of Board proceedings, are legally significant and provide 

the basis for a legal claim under the First Amendment, see Belcher v. Mansi, 569 F. Supp. 

379, 381-85 (D.R.I. 1983). The district court, which stated no reason for dismissing the 

claim, erred as a matter of law.

IV. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFFS’ STATE LAW 
CLAIM 1RIGHT TO INSPECT AND COPY PUBLIC DOCUMENTS).

The district court had the power to exercise pendent jurisdiction and judicial

economy, convenience, and fairness to the litigants would have been favored by doing so.

Where such power exists it is the rare and exceptional case where the court refuses to hear

the claim. Phillips v. Smallev Maintenance Services. Inc.. 711 F.2d 1524, 1531 (11th Cir.

1983). Here the district court had no reason for refusing to entertain the claim and abused

its discretion in doing so.



A. Legal Standards

1. Fourteenth Amendment

In order to establish a violation of the equal protection clause of the Fourteenth 

Amendment plaintiffs must show intentional discrimination. The Supreme Court in Village 

of Arlington Heights v. Metropolitan Hous. Dev. Corn., 429 U.S. 252 (1977), held that 

discriminatory intent could be established through such evidentiary showings as substantial 

disparate impact, a history of discriminatory official actions, procedural and substantive 

departures from the norms generally followed by the decision-maker, and the legislative or 

administrative history of the decision, id. at 265-69.12 * * Discriminatory intent may be found 

although "the record contains no direct evidence of bad faith, ill will or any evil motive on 

the part of public officials." Williams v. City of Dothan. 745 F.2d 1406, 1414 (11th Cir. 

1984).

2. Title VI and the Title VI Regulations

Title VI of Civil Rights Act of 1964, 42 U.S.C. § 2000d provides:

No person in the United States shall, on the grounds of race. . . .  be excluded 
from participation in. be denied the benefits of. or be subjected to 
discrimination under any program or activity receiving Federal financial 
assistance.

The regulations promulgated pursuant to Title VI provide:

In determining the site or location of facilities, an applicant or recipient may 
not make selections with the effect of excluding individuals from, denying 
them the benefits of, or subjecting them to discrimination under any 
programs to which this regulation applies, on the ground of race, . . . ; or 
with the purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the Act or this regulation.

12See also Keves v. School Dist. No. 1. Denver. 413 U.S. 189. 207-08 (1973), citing Nve
& Nissen v. United States, 336 U.S. 613. 618 (1949)("Evidence that similar and related
offenses were committed . . . tendfs] to show a consistent pattern of conduct highly relevant 
to the issue of intent").

- 35 -



closings of black facilities, that would neither justify a res judicata bar with respect to 

schools closed or planned to be closed after the March 13, 1985 dismissal of Lee, nor would 

it prevent a court from finding that a racially discriminatory pattern is now apparent based 

upon this history in conjunction with the present plan.15 16 The district court therefore 

abused its discretion in denying discovery regarding events prior to the 1985-86 school year, 

which prejudiced plaintiffs’ ability to contest certain factual findings made by the court. 

See supra at 14. Moreover, the district court’s refusal to consider the evidence in the 

record relating to the history of school closings and restructuring was clear prejudicial 

error.

4. Application of These Legal Standards

Below we review the record evidence separately for each of the categories of 

discriminatory practices challenged by plaintiffs. The district court’s findings of no 

discrimination rest on inferences drawn on a factual record that is largely undisputed. The 

court’s conclusions are clearly erroneous because the district court simply ignored the 

factual record established.

15(...continued)
segregative acts committed by defendants after that date"); Bronson v. Board of Educ. of 
Cincinnati. 687 F.2d 836, 841 (6th Cir. 1982)("evidence of events and practices which 
occurred prior to that date [of termination of prior litigation] are admissible if relevant to 
the post-1965 inquiry"); Bronson v. Board of Educ. of Cincinnati. 525 F.2d 344. 350 (6th 
Cir. 1975)(same), cert, denied. 425 U.S. 934 (1976).

l6See. e.g.. Davis v. School Dist. of Pontiac. 309 F. Supp. 734. 741 (E.D. Mich. 
1970)(finding racially discriminatory pattern of school construction despite earlier federal 
court approval of construction of all-black school in black neighborhood), affd. 443 F.2d 
574, 576 (6th Cir.). cert, denied. 404 U.S. 913 (1971).

- 37 -



explanation given in Brice v. Landis. 314 F. Supp. 974 (N.D. Cal. 1969):

The minority children are placed in the position of what may be described as 
second-class pupils. White pupils, realizing that they are permitted to attend 
their own neighborhood schools as usual, may come to regard themselves as 
"natives" and to resent the negro children bussed into the white schools every 
school day as intruding "foreigners." It is in this respect that such a plan, 
when not reasonably required under the circumstances, becomes substantially 
discriminating in itself. This undesirable result will not be nearly so likely if 
the white children themselves realize that some of their number are also 
required to play the same role at negro neighborhood schools.

The court also stated, 448 F.2d at 753-54:

Brown II, supra, calling for 'a racially nondiscriminatory school system.’ and 
its progeny require not only that past discriminatory practices be over come 
by affirmative actions but also that new forms of discrimination not be set up 
in their place. Closing formerly black school facilities for racial reasons 
would be such a prohibited form of discrimination. ‘Such a plan places the 
burden of desegregation upon one racial group.'

The court in Lee v. Macon County (Anniston), No. CV70-251-S, slip op. (N.D. Ala. 

March 17, 1983) (Hancock, J.), affd sub nom. Lee v. Anniston City School System, 737 

F.2d 952 (11th Cir. 1984), recognized as important factors to be considered in a school 

closing case: 1) that the new school was to be located in a racially neutral site, 2) that the 

location was chosen unanimously by a five-member board, of which the chair and one other 

member was black, 3) that the Board's plan was the result of over three years of study, 

wide publicity, public hearings, and public input involving every element of the citizenry of 

the community, and that a significant number of blacks in the community supported the 

plan, and 4) the Board's plan was the most reasonable from an economic and educational 

viewpoint. This Court, in affirming the district court, stressed that the Board's plan was 

developed through a decisionmaking process that involved active participation by both the

- 39 -



The district court did not find the Board's plan to be justified on grounds of 

economic efficiency. The court found that the cost of constructing a "new" elementary 

school to serve 550 students would be the same whether constructed at the Idalia site or 

the Training School site (R2-93-4 H 8).

Plaintiffs offered expert testimony to the effect that renovation (as planned) and 

expansion of the Training School to accommodate the elementary students in the three 

zones would have resulted in a substantial savings compared to the Board s plan to build 

a new elementary school and renovate the Training School as a separate grade 7-12 facility 

(R3-360-90, 425-36 [Mason]; PX-52). While the district court made no factual finding on 

this point, the Board's acknowledgement of the substantial economic savings gained from 

school consolidation strongly supports the conclusions of plaintiffs expert that expansion 

of the Training School for the elementary students would have resulted in significant 

economic benefits not available under the Board's plan.

In fact, the Board previously endorsed and detailed the economic benefits of 

consolidation in its Petition for Approval for Construction of a New School Complex [(K- 

12) in Childersburg], when requesting approval of the Wheatley closure. It stated that the 

economic benefits of consolidation are, inter alia, 1) savings on labor costs (less staff). 2) 

savings on equipment costs by consolidated use of equipment on one site, 3) service trips 

for bus maintenance to only one site (R2-95 Attach. B at 5; R3-245).

Dr. Morris, president of the County Board, agreed that small schools were 

economically inefficient;

I think it’s absurd financially to maintain these small schools. . . .  It think it 
is a waste of the taxpayers' money. . . . It's absurd to continue to have these 
multiple administrators and multiple custodial care and multiple lunchroom 
services.

- 41 -



to close historically black Phyllis Wheatley Middle School in 1984, in its "Petition For 

Approval of Construction for a New School Complex," signed by the Superintendent and 

all the Board members, the Board asserted reasons of economic efficiency and educational 

policy to urge approval of its proposal "to build a new high school, new middle school and 

ultimately a complete new school complex kindergarten [sic] through grade twelve, on the 

site" (R2-95 Attach. B at 4); 4) despite representations to the court and the parties in 1984 

that would lead to a conclusion that the Childersburg High School facility was to be 

replaced along with the Wheatley Middle School, neither rebuilding nor major renovation 

of the school was contemplated in the plans (PX-41), after court approval for closure of 

the historically black Wheatley Middle School was obtained; 5) the Board offered no reason 

and indeed none is apparent why the alternative offered by plaintiffs at trial — build the 

new elementary school across the road from the high school at the Training School site — 

would not have accomplished the Board’s stated purpose of separating elementary and 

secondary students while avoiding the racially discriminatory aspects of the Board’s plan.

Plaintiffs do not claim that the decision to consolidate these elementary schools is 

discriminatory; rather it is the site selection and underutilization of the Training School that 

are discriminatory because they perpetuate segregation and inferior education for blacks. 

Thus, the Board’s refusal to make the attendance zones for grades 7-12 at the Training 

School co-extensive with those for the new elementary zone, stated prior to trial, made 

evident its racial motivation. Despite the Board’s intention to spend $500,000 to renovate 

the Training School, the refusal to assign more students, particularly the white students in 

the Idalia zone, left the Training School as a small, virtually all-black school. The small 

size of the school’s enrollment puts the school at risk of being closed because of gross 

underutilization of the facility.

- 43 -



Net Sq. Feet Gross Sq. Feet

Childersburg Elem. (K-6) 
Ophelia Hill Elem. (K-6) 
Watwood Elem. (K-6)

63.03
51.04 
67.15

82.96
65.05
76.08iy

The planned underutilization of the Training School is a clear misuse of taxpayer dollars 

and makes evident that it was racial concerns and not rational decisionmaking that guided 

the decisions challenged here.

C. Closing Hannah Mallory And Reassigning The Majority Of Its 
Students To The Training School Via A Non-Contiguous 
School Zone Which Required The Use Of Temporary 
Classrooms Is A Classic Discriminatory Practice.

It is undisputed that when the Board closed Hannah Mallory and Superintendent 

Grissett subdivided its zones, that the majority of the Hannah Mallory students were 

reassigned to the Training School bv creating a non-contiguous elementary zone for the 

Training School (DX-30; R4-493 [Romane]; R2-93-6 11 13). Because there was insufficient 

space at the Training School for the reassigned students, the Board had to use temporary 

classrooms for these students (R4-493-94 [Romane]).

Strongly supporting a conclusion that this reassignment plan is racially discriminatory 

is the fact that the plan violates the court order in Lee which the Board committed itself 

to continue to follow. Dr. Grissett acknowledged the Board's continuing commitment to 

comply with those orders at the trial: "May 1 remind you that we re still operating under 

the court order" (R4-322). The Joint Stipulation of Dismissal in Lee, incorporates the 9 *

l9The numbers in this chart were derived by dividing the net square footage of the 
buildings by the total student enrollment for the 1988-89 school year and doing the same 
with respect to gross square footage, which results in the net and gross square feet per 
student. PX-20 sets out the net square footage (internal area) and gross square footage 
for each school (summary page for each school, pp. 11. 36-37, 51-52. 60. 81-82, 110-11, 142,
176, 199-200, 218. 236. 253. 288-89). and PX-14 sets out the student enrollment for each 
facility by year.

- 45 -



increasing the concentration of blacks at 99% black Talladega County Training School, and 

the district court so found (R2-93-6 11 15). The Board offered no reason why the portable 

classrooms placed at the Training School could not have been placed at the Childersburg 

school, if needed, to accommodate these children in a desegregated environment. The 

district court committed clear error in concluding that plaintiffs had not proven that this 

was a discriminatory practice.

D. Permitting White Students To Avoid Historically Black Schools 
Increases The Duality Of The School System, Makes The 
Training School 99% One-Race, And Is Discriminatory.

This Court in United States v. Lowndes Countv Bd. of Educ.. 878 F.2d 1301 (11th

Cir. 1989), recently found a violation of a court-ordered transfer provision almost identical

to the one the Talladega County Board agreed to continue to comply with when it sought

dismissal of Lee. The provision states:

If the Talladega County School Board grants transfers to students living in 
the district for their attendance at public schools outside the district...it will 
do so on a non-discriminatory basis, except that it shall not consent to 
transfers where the accumulative effect will reinforce the dual school system 
in either district.

(PX-49 [Feb. 3, 1970 order].) The district court found that the existence of this provision 

was not established (R2-93-11 11 32). This finding is clearly erroneous (PX-49: R3-230 

[Grissett]). No conflicting evidence was presented.

In Lowndes County, in finding a violation of the similar court order, this Court ruled 

that the provision21 obligates the school district to monitor the effect of transfers both on 

its own desegregation and on the districts to which it sends or from which it receives.

21See Singleton v. Jackson Municipal Separate School District. 419 F.2d 1211 (5th Cir. 
1969), cert, denied. 396 U.S. 290 (1970). These were standard provisions in most 
desegregation orders.

- 47 -



remained relatively constant (Rl-19 11 22) is legally irrelevant. The Court in Lowndes

County stated, ”[n]or is the issue settled by evidence that McKenzie’s white enrollment has

not appreciably increased throughout the years. A Singleton violation has still occurred if

the 9.3% increment of change has resulted in a perception of the school being more

"white." 878 F.2d at 1307. Here, with just the transfers identified at trial, the Training

School would immediately drop from being virtually 100% black to 85% black. Plaintiffs

anticipate this number being higher with the post-trial reports from Talladega City of over

350 out-of-district students (see R2-123, Tab 2). Taken together, this evidence provides

overwhelming support for a finding of both discriminatory intent and effect in violation of

the Fourteenth Amendment, Title VI and the Title VI regulations.

In its September 19, 1989 decision, reaffirmed January 7, 1992, the district court

denied relief on the inter-district transfer claim, although finding that it was on-going and

racially discriminatory in its origins, (R2-93-10, 11 30), because

Talladega County school personnel are, as a practical matter, unable to 
prevent this, since the enrollment and attendance of a public school student 
is verified and determined bv the gaining school system (i.e., the city school 
system) and not by the losing school system (in this case, Talladega County.)

R2-93-16.

Plaintiffs submitted on remand that given the decision of this Court directing that 

the Talladega City Board of Education be added as a party, that the district court should 

reverse its denial of relief on the zone-jumping claim in view of the fact that the court now 

has before it the party that, according to the district court, had prevented the original 

defendants from stopping the zone-jumping. The district court still denied relief, and 

thereby committed reversible error.

the racial make-up of the Talladega City and County school systems as a whole have

- 49 -



litigated in separate, independent proceedings in equity.24

III. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFFS' FIRST
AMENDMENT CLAIM

In Count IV of the Complaint plaintiffs alleged that defendants’ restrictions upon 

the ability of citizens to make personal records of the public proceedings of the Talladega 

County Board of Education by taking notes or making tape recordings of public meetings 

violates the First Amendment (Rl-1). In its December 29, 1988 Order the district court 

dismissed Count IV of the Complaint, without anv explanation (Rl-13).

Dismissal of the plaintiffs’ First Amendment claim was clear error. The prohibition 

on note-taking and tape recording by members of the public, implemented on May 12, 

1988, by the Talladega County Board of Education raises serious First Amendment issues 

because it burdens activity inextricably intertwined with protected speech. Black citizens 

of Talladega County who attend school board meetings surely are entitled to communicate 

to others their understanding and impressions of what takes place at those meetings. That 

the note-taking or tape recording barred by the School Board would facilitate such speech 

and make it more accurate, thus contributing to the robust public debate which the First 

Amendment nurtures, is ironic. Therefore the restriction burdens the exercise of the right 

of free association, and the right to assemble and petition for redress of grievances in

Z4United States v. Timmons, 672 F.2d 1373, 137S-80 (11th Cir. 1985)(discussing 
independent action in equity), citing Bankers Mortgage Co. v. United States, 423 F.2d 73, 
78 (5th Cir.), cert, denied. 399 U.S. 927 (1970); Jackson v. Carter Oil Co.. 179 F.2d 524 
(10th Cir.)(new injunctive decree issued in new civil action brought to enforce provisions 
of decree entered in prior litigation), cert, denied. 340 U.S. 812 (1950); Humble Oil & 
Refining Co. v. American Oil Co., 259 F. Supp. 559 (E.D. Mo. 1966)(in new civil action 
against successors of plaintiff which secured decree restraining use of certain symbols and 
trademarks in 1937 antitrust suit, court denies requested modification of 1937 decree on 
merits).

- 51 -



defendants rejected plaintiffs’ request to expand the northern boundary of the Training 

School attendance zone (making that zone co-extensive with the newly created K-6 zone 

for the Stemley Bridge Road Elementary School). Plaintiffs made this request in order to 

enhance desegregation and increase the size of the school. Instead of granting plaintiffs’ 

request, the Board made the attendance zone for the Training School even smaller than 

it had been. Plaintiffs’ Offer of Proof on Remand, Aplts. App. at 43-45, 52-57. Plaintiffs 

also sought to show with supplemental evidence on remand that the interdistrict transfers 

to Talladega City were ongoing and substantial with Talladega City reporting over 350 out- 

of-district students, that the City had begun to annex heavily white sections of the Count)' 

for the purpose of protecting the interdistrict transfers, and that officials of the Talladega 

County Board of Education have not taken any steps to oppose the annexations despite the 

loss of significant funding and student enrollment. Aplts. App. 46-49, 62-83.

This is material and probative evidence on the issues presented. None of the parties 

to the action objected to the presentation of this evidence. In fact, the Talladega County 

Board of Education suggested that an evidentiary hearing should be conducted (R2-124-3). 

The case was in a posture where the full record could be developed and there would be no 

possibility of unfair prejudice to any of the parties to the action. The district court's sole 

reason for denying the motion — in effect because it was not required to supplement the 

record by order of this Court (R2-127-4) — reveals that the court's refusal to hear plaintiffs’ 

supplemental evidence lacked a substantive basis and was arbitrary and capricious. As 

such, it is reversible error.

Plaintiffs submit that the Court need reach this issue only if it concludes that there 

is insufficient evidence on the record before it to find discrimination. In that instance, the 

case should be remanded with directions that the district court allow plaintiffs to

- 53 -



Certificate of Service

I herebv certify that on this
Appellants and one copy of the Record Excerpts and Appellant s Appendix were served 
by first class. United States mail, postage pre-paid. on defendants in this action, addressed

George C. Douglas. Jr.. Esq.
Ralph Gaines. Jr.. Esq.
Gaines. Gaines & Gaines. P C. 
Attorneys at Law 
127 North Street 
Talladega, Alabama 35106

Stan Thornton. Esq.
Wooton Thornton. Carpenter. O’Brien 

& Lazenbv 
P.O. Drawer 2777 
Talladega, Alabama 35160

as follows:



In the

UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 92-6033

QUINTIN ELSTON, et al.,

Plaintiffs-Appellants,

vs.

TALLADEGA COUNTY BOARD OF EDUCATION, et al.

Defendants-Appellees.

On Appeal from the United States District Court 
for the Northern District of Alabama

BRIEF FOR APPELLANTS

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 

99 Hudson Street. 16th Floor 
New York. New York 10013 
(212) 219-1900

CLEOPHUS THOMAS, JR. 
P.O. Box 2303 
Anniston. AL 36202 
(205) 236-1240

JANELL M. BYRD 
1275 K Street. N.W.
Suite 301
Washington. D.C. 20005 
(202) 682-1300

Counsel for Plaintiffs-Appellants

Date: Mav 12. 1992



f

CERTIFICATE OF INTERESTED PARTIES 

Pursuant to Eleventh Circuit Rule 26.1, the undersigned counsel of record submits 

this certificate of interested parties:

Hon. William M. Acker. Judge 

Cindy Allred, Defendant

Darius Ball, by parent/guardian Gwvnethe Ball, Plaintiff

Kierston Ball, by parent/guardian Gwvnethe Ball. Plaintiff

Delicia Beavers, by parent/guardian Dorothy Beavers. Plaintiff

Lecorey Beavers, by parent/guardian Ronnie Beavers, Plaintiff

Loretta Beavers, by parent/guardian Dorothy Beavers, Plaintiff

Torrance Beck, by parent/guardian Albert Beck, Jr., Plaintiff

Janell M. Byrd. Counsel for Plaintiffs

Norman J. Chachkin. Counsel for Plaintiffs

Julius L. Chambers. Counsel for Plaintiffs

Roslyn Cochran, by parent/guardian Johnnie Cochran, Plaintiff

George C. Douglas, Jr., Counsel for Defendants

Quintin Elston, by parents/guardians Augustus and Cardella Elston, Plaintiff 

Rhonda Elston, by parents/guardians Augustus and Cardella Elston, Plaintiff 

Tiffanie Elston, by parents/guardian Augustus and Cardella Elston, Plaintiff 

Jerrk Evans, by parent/guardian Kate Evans, Plaintiff

Elston v. Talladega County Board of Education, No. 92-6033

C-l of 3



Elston v. Talladega County Board of Education, No. 92-6033

Gaines, Gaines & Gaines, Counsel for Defendants 

Ralph Gaines, Jr., Counsel for Defendants 

Beulah Garrett, Defendant

Damien Garrett, by parent/guardian Althea Garrett. Plaintiff 

Vernon Garrett, by parent/guardian Estella Garrett, Plaintiff 

Kereyell Glover, by parent/guardian Delilah Glover, Plaintiff 

Lance Grissett, Defendant 

Hon. James H. Hancock, Judge

Stephanie Y. Hill, by parent/guardian Connallv Hill, Plaintiff

Ernest Jackson, by parents/guardians Rollen and Helen Jackson, Plaintiff

Rayven Jackson, by parents/guardians Rollen and Helen Jackson, Plaintiff

Carla Jones, by parents/guardians Willie and Bertha Jones, Plaintiff

Danielle Jones, by parent/guardian Donald Jones, Plaintiff

Paul Jones, by parents/guardians Willie and Bertha Jones, Plaintiff

Gay Langley, Defendant

Dan Limbaugh, Defendant

Datrea Morris, by parent/guardian Robert Morris, Plaintiff 

Jeffery Morris, by parent/guardian Lela Morris, Plaintiff 

Larry Morris, Defendant

Quentin Morris, by parent/guardian Robert Morris, Plaintiff

C-2 of 3



Elston v. Talladega Countv Board of Education, No. 92-6033

Quinedell Mosley, by parent/guardian Quinell Mosley, Plaintiff

Joseph Pomeroy, Defendant

Reid & Thomas, Counsel for Plaintiffs

Tonya Shepard, by parent/guardian Mary Alice Jemison, Plaintiff

Donyae Swain, by parent/guardian Gwendolyn Swain, Plaintiff

Kedrick Swain, by parent/guardian Gwendolyn Swain, Plaintiff

Terry Swain, by parent/guardian Gwendolyn Swain, Plaintiff

Tiffani Swain, by parent/guardian Gwendolyn Swain. Plaintiff

Talladega City Board of Education. Defendant

Talladega County Board of Education, Defendant

Cleophus Thomas, Jr., Counsel for Plaintiffs

Stan Thornton, Counsel for Defendants

Cora Tuck, by parent/guardian Louise Tuck, Plaintiff

Jacques Turner, by parent/guardian William Tuck. Jr. and Veronica Tuck, Plaintiff 

Wendall Ware, by parent/guardian John W. Ware, Plaintiff 

M.R. Watson, Defendant

Montina Williams, by parent/guardian Angie Williams. Plaintiff

Richard Williams, by parent/guardian Angie Williams. Plaintiff

Wooton, Thornton, Carpenter. O’Brien & Lazenby, Counsel for Defendants

C-3 of 3



Statement Regarding Oral Argument

Plaintiffs-Appellants respectfully request oral argument because the issues raised in 

this appeal are factually complex and of substantial importance. They involve challenges 

to racially segregative and discriminatory practices in the Talladega County, Alabama public 

school system, especially as such practices relate to school construction, school closings, 

attendance zone boundaries and interdistrict transfers.



TABLE OF CONTENTS

Statement Regarding Oral A rgum ent...................................................................................  i

Table of Authorities ................................................................................................................  v

Jurisdiction...............................................................................................................................  1

Issues P re se n ted .....................................................................................................................  1

Statement of the C a s e .............................................................................................................. 2

Origins of this L itigation .........................................................................................................  5

Facts Relevant To The Present A c tio n ................................................................................. 7

1. Schools Are Important and Beneficial Community Institutions ...................... 7

2. The School Closing and New Construction Plan ..............................................  7

3. Pattern of School Closings in Talladega C oun ty ..............................................  11

a. Hannah Mallory Elementary School ........................................................... 14

b. Phyllis Wheatley Middle School ..................................................................  16

4. The Board’s Asserted Rationale for Closing the Elementary Division of
the Training School and Locating the New Consolidated Elementary 
School at the Idalia Elementary School Site .....................................................  18

5. Barriers to Participation By Black Parents In School Board Decision-
Making .....................................................................................................................  21

a. Structural Barriers to Participation by B lacks.............................................. 21

b. Specific Barriers Plaintiffs Faced in Participating In the
Process Leading to the Challenged Decisions By the B o a r ...................  23

6. Interdistrict T ransfers..............................................................................................  28

Scope of R ev iew .....................................................................................................................  31

PAGE



PAGE

Summary of the Argument .................................................................................................  32

I. The District Court Erred in Finding No Discrimination
on Counts II and III .................................................................................................... 32

II. The District Court Erred in Dismissing Count I
(Breach of Contract) .................................................................................................... 33

III. The District Court Erred in Dismissing Count IV
(First Amendment) ......................................................................................................  33

IV. The District Court Erred in Dismissing Plaintiffs’ State
Law Claim (Right to Inspect and Copy Public Documents) ................................ 33

V. The District Court Erred in Denying Plaintiffs’ Request
to Supplement The Record on Remand .................................................................. 34

A rgum ent................................................................................................................................. 34

I. The District Court Erred In Finding No Discrimination.......................................  34

A. Legal Standards......................................................................................................  35

1. Fourteenth A m endm ent................................................................................  35

2. Title VI and Title VI Regulations ...............................................................  35

3. Discoverable and Admissible Evidence........................................................  36

4. Application of These Legal Standards ........................................................  37

B. Repeatedly Closing Historically Black Schools While Maintaining and 
Enhancing Historically White Schools Denies Black Citizens Equal 
Treatment In Refusing to Provide Them The Same Benefits Afforded
White Citizens ......................................................................................................  38

C. Closing Hannah Mallory And Reassigning The Majority Of Its Students
To The Training School Via A Non-Contiguous School Zone Which 
Required The Use Of Temporary Classrooms Is A Classic 
Discriminatory Practice ......................................................................   45

iii



PAGE

D. Permitting White Students To Avoid Historically Black Schools Increases 
The Duality Of The School System, Makes The Training School 99% 
One-Race, And Is Discriminatory.......................................................................  47

II. The District Court Erred In Dismissing Plaintiffs’
Breach of Contract Claim ...................  ..................................................................  50

III. The District Court Erred In Dismissing Plaintiffs’
First Amendment C laim ...............................................................................................  51

IV. The District Court Erred In Dismissing Plaintiffs’ State Law Claim .................  52

V. The District Court Abused Its Discretion in Denying Plaintiffs’
Request to Supplement the Record on Remand .....................................................  52

C onclusion............................................................................................................................... 54

IV



TABLE OF AUTHORITIES

Adams v. Board of Public Education.
770 F.2d 1562 (11th Cir. 1 9 8 5 ).....................................................................................  40

Alexander v. Choate. 469 U.S. 661 (1985) ....................................................................... 36

Anderson v. Bessemer City. 470 U.S. 564 (1985)...............................................................  31

Aro Corporation v. Allied Witan Company. 531 F.2d 1368
(6th Cir.), cert, denied. 429 U.S. 862 (1976) .............................................................  50

* Arvizu v, Waco Independent School District.
495 F.2d 499 (5th Cir. 1974)..........................................................................................  38

Bankers Mortgage Company v. United States. 423 F.2d 73
(5th Cir.), cert, denied. 399 U.S. 927 (1970) ............................................................. 51

Belcher v. Mansi. 569 F. Supp. 379 (D.R.l. 1983) ...................................................... 33, 52

* Bell v. West Point Municipal Separate School District.
446 F.2d 1362 (5th Cir. 1971)...........................................................................................38

Bossier Parish School Board v. Lemon. 370 F.2d 847
(5th Cir.), cert, denied. 388 U.S. 911 (1967) ............................................................. 50

Brice v. Landis. 314 F. Supp. 974 (N.D. Cal. 1 9 6 9 )..........................................................  30

Bronson v. Board of Education of Cincinnati. 525 F.2d 344
(6th Cir. 1975), cert, denied. 425 U.S. 934 (1976) ........................................................  37

Bronson v. Board of Education of Cincinnati. 687 F.2d 836
(6th Cir. 1982) ...............................................................................................................  37

* Brown v. Board of Education. 349 U.S. 294 (1955) ..........................................................  37

Clemons v. Board of Education of Hillsboro. 228 F.2d 853
(6th Cir. 1956) ...............................................................................................................  46

CASES PAGE

* Authorities primarily relied upon.

v



CASES PAGE

Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984) ..............................................  36

Davis v. School District of Pontiac. 309 F. Supp. 734 (E.D.
Mich. 1970), affd, 443 F.2d 574 (6th Cir.), cert.
denied. 404 U.S. 913 (1 9 7 1 ).......................................................................................... 37

Dillard v. Crenshaw Countv. Civ. Act. No. 85-T-1332-N .................................................23

* Eatmon v. Bristol Steel & Iron Works. Inc.. 769 F.2d 1503
(11th Cir. 1985)................................................................................................................  50

* Fairfax Countvwide Association v. Countv of Fairfax. 571
F.2d 1299 (4th Cir.), cert, denied. 439 U.S. 1047 (1 9 7 8 )..................................  33, 50

* Georgia State Conference of Branches of NAACP v. State of
Georgia. 775 F.2d 1403 (11th Cir. 1985) ....................................................................  36

Guardians Association v. Civil Service Commission of
New York City. 463 U.S. 582 (1983)............................................................................ 36

Haney v. County Board of Education of Sevier County, Ark..
410 F.2d 920 (5th Cir. 1969)..........................................................................................  46

Hatcher v. Board of Public Education and Orphanage
of Bibb County. 809 F.2d 1546 (11th Cir. 1987)........................................................  52

Humble Oil & Refining Company v. American Oil Company.
259 F. Supp. 559 (E.D. Mo. 1966) ..............................................................................  51

Jackson v. Carter Oil Company. 179 F.2d 524 (10th Cir.),
cert, denied. 340 U.S. 812 (1950) ................................................................................  51

Keyes v. School District No. 1. Denver. 413 U.S. 189 (1973) .........................................  35

Lee v. Anniston City School System. 737 F.2d 952
(11th Cir. 1984)......................................................................................................... 39, 40

Columbus Board of Education v. Penick. 443 U.S. 449 (1979) .......................................  46

* Authorities primarily relied upon.

vi



CASES PAGE

Lee v. Macon County Board of Education. 267 F. Supp. 458 
(M.D. Ala. 1967), affd sub, nom., Wallace v. United
States. 389 U.S. 215 (1967)............................................................................................... 6

* Lee v. Macon Countv Board of Education. 448 F.2d 746
(5th Cir. 1971)......................................................................................................  38. 39, 46

Lee v. Macon County Board of Education. (Talladega County).
No. 604-E (M.D. Ala. Feb. 3, 1970) ...................................................................................6

Los Angeles Branch. NAACP v. Los Angeles Unified School
District. 750 F.2d 731 (9th Cir. 1985) .........................................................................  36

Meetings and Expositions. Inc, v. Tandy Corporation.
490 F.2d 714 (2d Cir. 1974) ..........................................................................................  50

Nve & Nissen v. United States. 336 U.S. 613 (1949) ........................................................  35

Phillips v. Smalley Maintenance Services. Inc..
711 F.2d 1524 (11th Cir. 1 9 8 3 ).............. ...............................................................  31, 33

Riddick v. School Board of Norfolk. 784 F.2d 521 (4th Cir.), 
cert, denied, 479 U.S. 938 (1986) .....................................................................................  36

Singleton v. Jackson Municipal Separate School District. 419
F.2d 1211 (5th Cir. 1969), cert, denied. 396 U.S. 290 (1970)....................................... 47

Spangler v. Pasadena City Board of Education.
311 F. Supp. 501 (C.D. Cal. 1970) ..............................................................................  46

United Mine Workers v. Gibbs. 383 U.S. 715 (1966)........................................................  53

United States v. Board of School Comm'rs. 332 F. Supp. 655
(S.D. Ind. 1971) .................................................................................................................. 46

* United States v. Lowndes County Board of Education.
878 F.2d 1301 (11th Cir. 1 989 ).........................................................................  47, 48, 49

United States v. Timmons. 672 F.2d 1373 (11th Cir. 1985)..............................................  51

* Authorities primarily relied upon.

vii



CASES PAGE

Village of Arlington Heights v. Metropolitan Housing
Development Corp.. 429 U.S. 252 (1977) ....................................................................... 35

Weiss v. Willow Tree Civic Association, 467 F. Supp. 803
(S.D.N.Y. 1979) ................................................................................................................... 52

Williams v. City of Dothan, 745 F.2d 1406 (11th Cir. 1 9 8 4 )............................................  35

CONSTITUTIONAL PROVISIONS AND STATUTES

First Amendment ...................................................................................................... 2, 3, 33, 51

Fourteenth Amendment ..................................................................................................p a s s im

28 U.S.C. § 1291............................................................................................................................ 1

28 U.S.C. §§ 1331 and 1343(a)(4) .......................................................................................... 1

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d .......................................  1, 37

34 C.F.R. § 100 et s e g ................................................................................................................ 2

34 C.F.R. § 100.3(b)(l)(iv) .......................................................................................................37

34 C.F.R. § 100.3(b)(3)..............................................................................................................37

Ala. Code § 36-12-40 ....................................................................................................... 2, 52

RULES

Fed. R. Civ. P. 12(b)(6)........................................................................................................... 32

Fed. R. Civ. P. 5 2 (a ) .................................................................................................................3 2

Fed. R. Civ. P. 6 0 (b )...................................................................................................................51

* Authorities primarily relied upon.



In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 92-6033

QUINTIN ELSTON, et al„

Plaintiffs-Appellants,

vs.

TALLADEGA COUNTY BOARD OF EDUCATION, et al.

Defendants-Appellees.

On Appeal from the United States District Court 
for the Northern District of Alabama

BRIEF FOR APPELLANTS

Jurisdiction

Subject-matter jurisdiction existed in the district court pursuant to 28 U.S.C. §§ 1331 

and 1343(a)(4), as this action was brought to redress the deprivation of constitutional and 

statutory rights. Jurisdiction exists in this Court pursuant to 28 U.S.C. § 1291. The district 

court issued a final judgment on January 7, 1992 (R2-128).

Issues Presented

L Whether the district court erred in ruling with respect to Count II under the 

Fourteenth Amendment and Count III under Title VI of the Civil Rights Act of 1964, 42 

U.S.C. § 2000d, and the regulations promulgated thereunder, that plaintiffs had failed to 

prove either discriminatory intent or effect regarding, inter alia, the Board’s school closing 

and new construction plan and interdistrict transfers.

2. Whether the district court erred in dismissing Count I of the Complaint for



breach of contract on the ground that enforcement of an agreement made in a related case 

could be pursued only in that litigation, although that litigation had been dismissed.

3. Whether the district court erred in dismissing without explanation Count IV 

of the Complaint challenging as violative of the First Amendment the Board of Education’s 

policy precluding the recording "in any manner" of its public meetings.

4. Whether the district court erred in refusing to exercise pendent jurisdiction 

over Count V under Ala. Code § 36-12-40 for defendants’ refusal to provide plaintiffs with 

copies of public documents.

5. Whether the district court erred in refusing to require defendants to provide 

discovery regarding any matter prior to school year 1985-86.

6. Whether the district court erred on remand in denying plaintiffs’ request to 

supplement the record with evidence regarding discriminatory actions taken by defendants.

Statement of the Case

On December 5, 1988, plaintiffs, representing a class of black children and their 

parents in Talladega County, Alabama, filed this action challenging several discriminatory 

practices of the Talladega County Board of Education under the Fourteenth Amendment. 

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., the Title VI regulations, 

34 C.F.R. § 100 et seq., the First Amendment, and related laws and legal theories.

Defendants moved to dismiss the Complaint on December 12, 1988. The Local 

Rules of the United States District Court for the Northern District of Alabama do not 

establish time limits for submitting responsive briefs to motions. Plaintiffs’ counsel inquired 

about scheduling and on December 22, 1988, was advised by Judge Hancock’s law clerk 

that the motion would be placed on the motion docket and that a scheduling order would 

be issued notifying plaintiffs when their response would be due, as is the routine procedure.

i



Instead, however, Judge Hancock ruled on the motion on December 29, 1988, without 

providing plaintiffs an opportunity to respond. (See Rl-14). The court summarily 

dismissed Count I (Breach of Contract), Count IV (First Amendment), and Count V 

(Alabama Public Writings Law) of the Complaint (Rl-13). The district court also rejected 

plaintiffs’ motion for a preliminary injunction and requests for expedited discovery to 

support the injunction motion, and ruled that all evidence of events occurring prior to 

March 13, 1985, the date of dismissal of a related case, would be inadmissible (Rl-13).

Thereafter, the district court denied admission pro hac vice of counsel for plaintiffs 

from the NAACP Legal Defense Fund on the ground that a victory for plaintiffs would 

result in an undue burden on the taxpayers of Talladega County (see Rl-16, 17, 18, 19, 20). 

The court subsequently allowed one pro hac vice admission (Rl-30). In June of 1989, the 

district court denied plaintiffs’ motion to add the Talladega City Board of Education as a 

party on the interdistrict transfer claim on the ground that the motion (filed May 26, 1989) 

was after the district court’s May 5, 1989 deadline for adding parties (Rl-63).

The district court refused to require the defendants to provide any discovery on
«

matters prior to school year 1985-86 (Rl-49-2) and ruled prior to trial that such evidence 

was inadmissible (Rl-13-3). Without announcing a reversal of these rulings, the court 

allowed both sides at trial to put in evidence regarding matters prior to 1985. At trial on 

Counts II and III, plaintiffs challenged

a) a pattern of closing or reducing the grade structure of historically black 
schools while maintaining and enhancing historically white schools (reflected, 
plaintiffs alleged, in recent new construction and expansion of a white school 
[Idalia Elementary which had burned] and concomitant closing of the 
elementary grades of a historically black school [Talladega County Training 
High School]1), thus denying black citizens the benefit, enjoyed by whites, of

'The School served grades K-12, despite its "High School" name.



having integrated schools in their communities;

b) the closing of Hannah J. Mallory Elementary School (100% black student 
population) and reassignment of its students in a segregative manner by 
creating a non-contiguous elementary zone that placed the majority of those 
students at the Talladega County Training School (99% black) and required 
the use of temporary classrooms, while there were alternative school sites 
available that would have decreased the concentration of black students in 
segregated facilities;

c) the longstanding practice by which white students were permitted to avoid 
attending historically black or majority-black schools within the district by 
crossing school district lines to enroll in schools in neighboring school 
districts; and

d) the School Board’s practice of limiting, undermining, and frustrating black 
parents’ involvement in school system affairs by denying information, 
obstructing efforts to participate at Board meetings, and providing wrong or 
incomplete information to black parents.

The district court ruled against plaintiffs, finding that defendants had not acted with 

discriminatory intent, that their actions did not have a discriminatory effect on blacks, and 

that defendants had offered legitimate, non-discriminatory reasons for their actions. Elston 

v. Talladega County Bd. of Educ.. CV-88-2052-H, Findings of Fact and Conclusion of Law 

(Sept. 19, 1989) (R2-93). The parties’ Stipulated Facts (Rl-83) were accepted by the 

district court (R2-93-1).

On appeal in 1991, this Court per curiam vacated the judgment of the district court 

(R2-106). The Court found that the district court had abused its discretion in denying pro 

hac vice admission of plaintiffs’ counsel and in denying plaintiffs’ motion to add the 

Talladega City Board of Education as a party defendant. The Court remanded with 

directions that the district court "grant the motion for leave to amend, grant the motion for 

admission pro hac vice, permit such additional discovery as may be necessary and conduct 

such additional evidentiary hearings as determined appropriate by the court" (R2-106). 

Plaintiffs’ Motion to Supplement the Record on Appeal (R2-116- Exh. B) was denied as

- 4 -



moot. Order of April 30, 1991 (Aplts. App. at 6A).

On remand the district court admitted plaintiffs’ counsel and added the Talladega 

City Board of Education as a party defendant (R2-111). The court, however, limited the 

consideration of additional evidence to that that plaintiffs could prove "only because of the 

presence in the lawsuit of the Talladega City Board of Education," (R2-114-2), or "only by 

reason of the assistance of Julius L. Chambers and/or Norman J. Chachkin." Id- See also 

R2-117; R2-125. The court refused to reconsider its initial decisions to dismiss Counts I, 

IV, and V, or its limitation on discovery regarding events prior to the 1985-86 school year. 

The court also ruled that it would not receive evidence of events occurring after the 1989 

trial (R2-114; R2-117; R2-125).

Plaintiffs readily conceded that there was no evidence available in the categories 

identified by the district court and that discovery would be futile and a hearing unnecessary 

(R2-126). On January 7, 1992, the district court readopted its Findings of Fact and 

Conclusions of Law entered September 19, 1989 (R2-128; R2-93). Thus, the case is back 

before this Court in essentially the same posture as in the prior appeal. The appeal 

involves in significant measure a challenge to the ultimate factual conclusions drawn by the 

district court on a record that is comprised overwhelmingly of stipulated facts and 

uncontroverted oral or documentary evidence.

Origins of this Litigation

In 1963, black parents in Alabama filed Lee v. Macon County Bd. of Hduc. 

[hereafter cited as Lee], Civ. No. 70-0251-S. on behalf of black school children seeking to 

desegregate Alabama’s public schools. The Talladega County Board of Education later 

became a defendant in that action, and in 1967, a three-judge court held that defendants 

were operating an unconstitutional, segregated school system and ordered state-wide

- 5 -



desegregation.2 Talladega County’s school desegregation plan was approved by the court 

as supplemented and modified on February 3, 1970.3

On March 13, 1985, pursuant to a Joint Stipulation of Dismissal incorporating a 

Resolution of the Talladega County Board of Education which states that "[t]he Talladega 

County System shall be operated at all times so as to conform with . . .  all previous orders 

of this Court" (PX-49 [unnumbered page 6]), the district court dismissed the Lee case (PX- 

49). In July of 1988, black parents and children in Talladega County, Alabama attempted 

to reopen Lee to enforce the outstanding injunctive decree. The district court in Lee 

rejected the motion to reopen which, while asserting a different legal theory, raised virtually 

the same claims as those made here. That court ruled that dismissal in 1985 necessarily 

meant there were no outstanding court orders to be enforced and directed plaintiffs to 

pursue their claims in a new lawsuit. Plaintiffs appealed4 and filed this action.

Plaintiffs sought a preliminary injunction in Lee to enjoin the construction at the 

Idalia Elementary School site but it was denied both in the district court and in an 

emergency request on appeal. Plaintiffs also sought a preliminary injunction in this 

litigation but were denied by the district court. Plaintiffs appealed that denial; however, 

by the time the appeal was to be argued the construction had progressed beyond a point 

where it could reasonably have been stopped. Plaintiffs, therefore, voluntarily dismissed

zLee v. Macon County Bd. of Educ.. 267 F. Supp. 458 (M.D. Ala. 1967) (3-judge court), 
affd sub, nom., Wallace v. United States. 389 U.S. 215 (1967).

3Lee v. Macon County Bd. of Educ., (Talladega County), No. 604-E (M.D. Ala. Feb. 3, 
1970) (Plaintiffs’ Trial Exhibit No. 49 [composite exhibit of key court orders]). Plaintiffs’ 
and defendants’ trial exhibits are referred to hereinafter as "PX- " and "DX- " respectively. 
Exhibits and portions of the trial transcript cited herein are included in Appellants’ 
Appendix ("Aplts. App.").

4Appeal No. 88-7471 is pending before a panel of this Court.

- 6 -



that appeal in August of 1989, No. 89-7104. but continue to  seek appropriate alternative 

relief in this action, such as the adjustment of discriminatory attendance zone boundaries 

and a prohibition on segregative interdistrict transfers.

Facts Relevant To The Present Action

Most of the facts enumerated in this section of the brief are uncontested. The 

exceptions are identified below as are instances where the district court made factual 

findings that are contrary to the only relevant evidence of record on the subject. 

Additional evidence relevant to the trial court’s "ultimate" finding that there was no 

discrimination is discussed in the Argument, infra.

1- Schools Are Important and Beneficial Community Institutions

It is undisputed in this action that schools are important and beneficial community 

institutions. The Talladega County Board of Education recognized the benefit that a 

school serves in a community in passing its "Community Education" resolution on July 22, 

1985 (PX-37 [July 22, 1985 Board minutes]). There the Board recognized that maximizing 

use of existing facilities precludes unnecessary costs for other agencies to provide needed 

facilities for community services. The Resolution states that local citizens and community 

leaders have expressed desires to use school facilities effectively in order to meet 

educational, cultural, recreational and social needs in their communities. Thus the Board 

urged administrators of each school to try to meet the needs of the community and to 

involve local citizenry in utilizing facilities under their jurisdiction (Rl-83-1,2 Uf 1,2).

2. The School Closing and New Construction Plan

The total student population for the Talladega County school district in 1989 was 

8496, of which 43% was black and 57% was white (PX-14 [1989 statistics]). At the time

- 7 -



of trial in 1989 and appeal in 1991. the Talladega Countv'Training High School5 served 

grades K-12 (PX-14), in the central part of Talladega County (PX-15, PX-16 [light blue 

lines indicate school zone]). It is historically a black school (R2-93-2 11 1) which has 

continued to have a virtually all-black student population. For the school year 1988-89, the 

Training School was 99.9% black in grades K-6 and 99.6% black in grades 7-12 (Rl-83-2 

H 4). It has a black principal, Mr. John Stamps, and is a racially identifiable school.

Students residing in the areas assigned to the elementary division, grades K-6, of the 

Training School and the Jonesview Elementary School for grades K-6 were assigned 

pursuant to the Board’s desegregation plan to attend the Training School in grades 7-12 

(Rl-83-3 U 7). Jonesview is a historically white school in the central section of the County 

(R2-93-2 11 1; PX-15). Its black student population increased in the late 1980’s (PX-14), 

in part because of student assignments made when the Board closed Hannah Mallory 

Elementary School.6 For school year 1988-89. Jonesview had a student population that was 

65% black (Rl-83-2 11 6). Very few white students completing the seventh grade at 

Jonesview actually attend the Training School for grades 7-12. For example, for school 

years 1984-85 through 1988-89 there was an average of 68 white students per year at 

Jonesview, while the Training School had an average of 17 white students per year in 

grades 7-12 (PX-14).

Also in the central area of Talladega County is the Idalia Elementary School (K-6) 

(PX-16). Idalia is a historically white school (Rl-83-3 H 8) and is located in a 

predominately white community (R3-32 [Elston]; R3-117 [Jones]). Most of the Idalia

5Since the trial the school has been renamed "Central High School." For consistency 
with the existing record, plaintiffs will refer to the school as the "Training School" herein.

6See infra at 14-16.

- 8 -



facility burned down in 1986; the school thereafter operated out of portable classrooms 

located at the site (Rl-83-3 H 9). After the fire, the Board temporarily transferred the fifth 

and sixth grades at Idalia to Drew Middle School (Rl-83-4 H 14). For the 1988-89 school 

year the student population of Idalia was 46% black (K-4) (Rl-83-3 11 9). Under the school 

system’s 1988-89 attendance zones, students completing the sixth grade at Idalia were zoned 

to attend Drew Middle School for grades 7-8 and Lincoln High School for grades 9-12 (Rl- 

93-3 11 5; PX-16). For school year 1988-89, Drew Middle School had a black student 

enrollment of 37% and Lincoln had a black student enrollment of 47% (Rl-83-4 11 14).

The School Board's plan challenged in this action called for the discontinuance of 

grades K-6 at the Training School, the closure of the Jonesview Elementary School, and 

the construction of a new consolidated elementary school immediately adjacent to the 

burned Idalia school (R2-93-2 H 1; Rl-83-3 H 12). Areas previously assigned for grades K-6 

to the Training School, Jonesview, and Idalia were to be assigned to the new school, named 

the "Stemley Bridge Road School," (id.). Plaintiffs did not object to the consolidation of 

the elementary grades; they objected to the site selection for the consolidated school which 

required eliminating grades K-6 at the Training School.

The Board stated that it planned to spend $500,000 to renovate Talladega County 

Training School for continued use as a grade 7-12 facility (Rl-93-4 11 6), to which students 

residing in the Jonesview and Talladega County Training School elementary grade zones 

would be assigned for grades 7-12 (R3-301 [Grissett]; Rl-83-3 11 13).

After it was clear that the new elementary school could not be stopped, plaintiffs 

urged the Board to adopt attendance zones for grades 7-12 at the Training School that 

would be the same as those planned for grades K-6 at the new school (so that the 

attendance areas assigned to the Stemley Bridge Road School [former Idalia, Jonesview and

- 9 -



Training School K-6 zones] would be assigned to the Training School for grades 7-12), 

because this would reduce the racial isolation and racial identifiabilitv of the Training 

School and make full use of its facilities after the renovation and removal of grades K-6 

(R3-36, 37, 110 [Elston]). Defendants, however, refused to make the elementary and high 

school attendance zones for students in this part of the County co-extensive, thereby leaving 

the Training School as a virtually all-black and underutilized institution.

Superintendent Grissett gave conflicting testimony regarding the planned attendance 

zones after consolidation. In an Affidavit of February 2, 1989, submitted in connection 

with defendants’ Motion for Summary Judgment, Dr. Grissett stated:

[The] Talladega County Training School will be fed by all of the students 
graduating from the new Stem lev Bridge Road Elementary School who are 
not within the Lincoln attendance zone.

The only students from the Stemley Bridge Road School who would not 
attend the Talladega County Training School upon graduation would be 
those who were zoned for Lincoln, and these are students who would now go 
to Lincoln anyway upon graduation from the present Idalia Elementary 
School. In other words, completion of the proposed new school will not 
result in any change in "feeder pattern" from what would be now.

(Rl-33-2). Dr. Grissett testified during examination by plaintiffs' counsel that "the

intention is to abide by the premises of that affidavit" (R4-268 [Grissett]). However, when

asked by his own counsel a few minutes later to draw the dividing line "between elementary

students who you would expect to go to Lincoln High School and the elementary students

who would be zoned for T.C. seven through twelve" (R4-301), Dr. Grissett did not follow

the current feeder pattern as asserted in his affidavit: instead he drew different boundary

lines, roughly splitting the Idalia zone in half for grades 7-12 and indicating that half of the

zone would be assigned to the Training School (R4-301; DX-30 [red dashed line]).

In the prior appeal plaintiffs moved to supplement the record with evidence showing

- 10 -



that after trial Superintendent Grissett did not recommend the attendance zones he 

testified to at trial and demonstrated to the trial court in DX-30. Instead, when the Board 

adopted new attendance zones it rejected plaintiffs’ request to extend the Training School’s 

northern border to make it co-extensive with the elementary zone created for the K-6 

students attending the Stemley Bridge Road Elementary School (this would have required 

adding the former Idalia zone, plus a northern extension of that zone made by the Board 

after trial). See R2-116-Exhibit B (maps showing post-trial zone adjustments); Aplt. App. 

at 55, 57. This Court denied plaintiffs’ motion to supplement the record on appeal as moot 

at the time it vacated the district court's 1989 judgment and remanded for further 

proceedings. (Aplts. App. at 6A). On remand, plaintiffs specifically requested that they 

be allowed to supplement the record with this evidence of post-trial zone adjustments (R2- 

123). The district court rejected that request without asserting a reason other than its 

conclusion that the remand did not contemplate consideration of such additional evidence 

and that the court "views as appropriate the four-year time frame." (R2-124).

3. Pattern of School Closings in Talladega County

The controversy presented in this action is rooted in the longstanding position of the

Talladega County Board of Education that in desegregating the school system, white

children ought not be required to attend formerly or presently majority-black schools. In

submitting its desegregation plan to the district court in 1970, the Superintendent of the

Talladega County School System, J.R. Pittard. stated:

I am sure you realize that the implementation of a plan to abolish the dual 
school system is more difficult in some school systems than in others because 
of the racial composition of the school system. It is anticipated that the 
implementation of the plan in the Talladega County School System will be 
difficult because of the size of our Negro population. Implementation of the 
plan in the Talladega County School System will require us to send white 
students to all Negro Schools with the exception of one school. Our problem

- 11 -



is further intensified by the fact that of the five "county school systems 
bordering this county, it will not be necessary for four of these systems to 
send white students to Negro schools. I hope, therefore, that you will have 
some understanding of our situation and of the problems involved.

PX-49 at 9 (pages unnumbered) (emphasis added).

The pattern of school closings and grade restructuring since 1970 shows the Board’s

consistent adherence to Superintendent Pittard’s position: In the fall of 1968, there were

eight historically black schools and twelve historically white schools in the Talladega County

School System (DX-4). By 1989, the school district had closed outright four historically

black schools — Mignon, Nottingham. Hannah J. Mallory, and Phyllis Wheatley. It had

closed outright only one historically white school — Estaboga (PX-14; PX-20-113).

Grade levels at historically black schools have also been reduced much more often

than at historically white schools: In 1968 there were six historically white schools

providing secondary education -  B.B. Comer, Childersburg High School, Fayetteville,

Munford, Talladega County High School (renamed Lincoln High School), and Winterboro -

- and five historically black schools providing secondary education — Charles R. Drew,

Ophelia S. Hill, Phyllis Wheatley, R.R. Moton (renamed Sycamore School), and the

Talladega County Training School (DX-4). In 1989 the six historically white schools

providing secondary education remain. Only one historically black school — Talladega

County Training High School -  continues to provide secondary education (PX-14 [1989

statistics]).

Similarly, in 1968 there were eleven white schools providing elementary education — 

Watwood, Comer, Childersburg, Estaboga, Fayetteville, Idalia, Jonesview, Linder, Munford, 

Talladega County High School (renamed Lincoln), and Winterboro, and eight historically 

black schools providing elementary education -  Charles R. Drew, Hannah Mallory,

- 12 -



Mignon, Nottingham, Ophelia S. Hill, Phyllis Wheatley, R.R.-Moton (subsequently renamed 

Sycamore), and the Talladega County Training School (DX-4). In 1989. there were nine 

historically white schools providing elementary education (Estaboga and the elementary 

division of Munford having been closed (PX-14)),7 and only three historically black schools 

providing elementary education -  Hill, Moton (grades 4-8), and the Talladega County 

Training School (PX-14). One historically black school, Charles R. Drew, now serves 

grades 5-8, and one new school serving the same grades — Childersburg Middle School 

(PX-14) — was constructed at the site of a historically white school (R4-548 [Woods]).

Prior to implementation of the School Board's school closing and new construction 

plan, the Talladega County Training School was the only one of the eight historically black 

schools extant in the County in 1968 that remained open and unchanged in grade structure. 

Now its grade structure has been reduced to grades 7-12. (Rl-83-2 11 3).

The district court’s Findings of Fact expressly refused to consider the evidence on 

school closings on the asserted ground that plaintiffs made no proffer of these facts, as they 

had indicated they would in their proposed factual findings (R2-93-13). Plaintiffs pointed 

out in their Motion to Alter or Amend the Judgment (R2-95-1.2). which was denied, that 

no proffer was made because the evidence was admitted at trial in DX-4, which lists the 

schools operated in 1968 along with their grade structures and racial compositions, and PX- 

14, which lists the schools, grade structures and racial compositions for school year 1988-89; 

Mr. Elston and Mr. Woods also testified on the issue. (R3-42-44, 93-94; R5-553-54).

7Mark Linder, a historically white school, appears to have been consolidated with a 
historically black school R.R. Moton under the name of Sycamore, with Linder serving 
grades K-3 and Moton serving grades 4-8; however, without discovery plaintiffs were unable 
to confirm this information. (See PX-19 at 28-29). Linder is included in the total of nine 
historically white schools providing elementary education and Moton is included in the total 
of three historically black schools providing elementarv education.



Plaintiffs presented the following evidence at trial regarding the recent closing of 

historically black schools.

a. Hannah Mallory Elementary School

Hannah Mallory Elementary School was a historically black school. It served as a 

feeder school for the Talladega County Training School. (Rl-83-4 H 18). Hannah Mallory 

was closed pursuant to a Resolution of the Board adopted on July 22, 1985, following an 

announcement that the Lee suit had been dismissed (PX-37 [Board Minutes, July 22, 1985]; 

R3-232 [Grissett]). Despite a July 22. 1985 Board Resolution approving closure, the district 

court ruled that prior to the March 13. 1985 order dismissing Lee, the Board had decided 

to close Hannah Mallory (R2-93-5 11 12), and that the proposed closing and new attendance 

zones were submitted to the Justice Department prior to March 13, 1985 (R2-93-5 11 13). 

Plaintiffs cannot, having been denied discovery on matters during this time period, disprove 

that such a decision may have been made informally, as suggested by the district court (R4- 

331-32; R3-300, 302-03) (and perhaps improperly if not approved by the Board at a public 

meeting), but note that it appears that neither the court nor the private plaintiffs were 

informed of this decision prior to consent to dismissal and court approval in 1985. as there 

is neither a motion requesting nor an order approving closure (see Docket Sheet from Lee. 

Aplts. App. at 1 [the 12/06/84 order listed (R2-95-Attach. B) does not relate to Hannah 

Mallory]). The Board’s letter to the Justice Department in 1984 discussing the status of 

the case does not reference plans to close Hannah Mallory (PX-31). To the extent that 

such a decision was made informally and not disclosed prior to the court’s approval of the 

Stipulation of Dismissal in 1985, it would be highly probative on the issue of discriminatory 

intent.

Prior to closing, Hannah Mallory had a student population that was 100% black

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(PX-14[1984-85 statistics]). After dismissal of Lee. Superintendent Grissett subdivided the 

Hannah Mallory attendance zone into three parts after its closure. One section was 

assigned to the Jonesview zone, one to the Childersburg zone, and one section was assigned 

to the Talladega County Training School zone (PX-15; PX-16; R2-233 [Grissett]). The 

reassignment plan required the majority of students from Hannah Mallory, who were all 

black, to attend the Training School (R4-493 [Romane]; R2-93-6 11 13).

The new zones affected black enrollment at the receiving schools in the 1985-86 

school year as follows:
Enrollment

School and 1984-85 1985-86
grades served White Black White Black

Childersburg Elementary (K-4) 176 134 168 147
Phyllis Wheatley Middle (grades 5-6 only) 218 152 194 158
Jonesview Elementary (K-6) 71 85 70 116
Talladega Country Training (K-6) 0 134 3 236

PX-14 [compare 1984-85 and 1985-86 statistics]. Thus, while black student enrollment 

during the 1985-86 school year remained relatively stable at Childersburg Elementary and 

Phyllis Wheatley, and increased at Jonesview (which was 55% black in school year 1984-85), 

the largest and most significant increase in students was at the Training School, which 

received the majority of the reassigned children. This influx required the use of portable 

classrooms at the Training School to accommodate the incoming students (R4-493-94 

[Romane]; R2-93-6 11 15), and significantly increased the concentration of black students 

in an already racially isolated school (R2-93-6 H 15). Some students could have avoided 

assignment to this racially isolated school by use of the majority-to-minority transfer 

provisions in the Board’s desegregation plan (PX-49 [Feb. 3. 1970 court order at 4]). 

However, the Board has not advertized the availability of the majority-to-minority transfer 

option (R2-93-13 11 43), and the provision has been rarely used (R3-261 [Grissett]).

- 15 -



The new K-6 zone that was created for the Training School following the closure of 

Hannah Mallory, while contiguous with an existing Training School 7-12 zone (R2-93-7 U 

19), was not contiguous with the remainder of the Training School K-6 zone (R2-93-7 11 19; 

DX-30 [blue lines indicate non-contiguous zones]). It is undisputed that this was the only 

non-contiguous zone in the school system (PX-16).

b. Phyllis Wheatley Middle School

On December 5, 1984, the Board filed in Lee a "Petition for Approval of 

Construction of New School Complex" requesting permission to build a new high school 

and middle school in Childersburg, to replace the Childersburg High School (historically 

white) and the Phyllis Wheatley Middle School (historically black) (R2-95 Attach. B). This 

petition became a court order after it was approved and entered the next day, December 6, 

1984 (R2-95 Attach. B). It was read from during the trial and plaintiffs’ counsel requested 

the district court to take judicial notice of it (R3-245). It stated that the State Board had 

recommended that the Childersburg High School "be replaced as soon as practicable," (R2- 

95 Attach. B at 4), and that the Wheatley School be replaced "as soon as funds were 

available for that purpose," (id.) and that the School Board "had approved plans to move 

forward with the construction of the new high school and new middle school" (id. at 7) 

(emphasis added). The petition described the Board's "proposal" as one "to build a new 

high school, a new middle school [initial stage] and ultimately a complete new school 

complex kindergarden [sic] through the grade twelve, on the site" (id.).

A new middle school was built in Childersburg for the students assigned to the 

Phyllis Wheatley School, which the Board closed. The new school opened in the fall of 

1988. (R3-237 [Grissett]). The Board named it the "Childersburg Middle School" (R2-93-4 

H 9), and located it in a predominately white community, whereas Phyllis Wheatley had

- 16 -



been an integrated school located in a predominately black community (R5-548 [Woods]). 

The district court’s ruling that the Wheatley school was simply "relocated" (R2-93-4 H 9), 

is inconsistent with the Superintendent's acknowledgement that the Wheatley school was 

"closed" (R3-237 [Grissett]), and that the school building now functions as a community 

center, infra at 18. Although the Board's Petition to the Court identified the Childersburg 

High School as a priority for replacement, that facility was never closed nor was a new high 

school built. In fact, neither plans for replacement nor major renovation of the 

Childersburg High School were included in the Board’s master plan for capital 

improvements (PX-41) or its Capital Outlay Summary (PX-42 [Childersburg Phase 1 is the 

new middle school, see PX-40]).

There was substantial opposition in the black community to closing Phyllis Wheatley 

and locating the new middle school in a predominately white community. Mr. Charles 

Woods,8 testified that members of the black community did not learn of the decision to 

close the school until after the site selection and plans for new construction had already 

been made and that a group of seventy-five to one hundred black people in the area 

opposed the closing of the school (R5-546 [Woods]). The district court's finding that some 

black people supported the plan (R2-93-17 11 13) is totally unsupported by record evidence. 

Mr. Woods testified that he opposed the plan because he believed it was racially motivated 

given the pattern of black school closings and the selection of a site in a predominately 

white community (R5-548 [Woods]). He asked to be allowed to meet with the School

fcMr. Woods is a City Council Member in Childersburg and a member of the Alabama 
Judicial Compensation Commission. He is also the President of the local office of the 
NAACP, the Alabama Improvement Association, the Alabama Democratic Conference and 
the Southern Coalition. (R5-545 [Woods].)

- 17 -



Board at the time to express his opposition to the plan but, like the plaintiffs here, had no 

success in arranging a meeting with the Board (R2-93-5 H 10).

After the Wheatley school was closed, the Phyllis Wheatley Alumni Association, a 

group of black citizens led by Mr. Woods, leased the Wheatley School from the Board of 

Education for community use for educational, cultural, recreational, and social activities 

(Rl-83-4 11 15; PX-12; R5-550 [Woods]).

4. The Board’s Asserted Rationale for Closing the Elementary 
Division of the Training School and Locating the New 
Consolidated Elementary School at the Idalia Elementary 
School Site

Prior to trial, the Board offered two reasons for selecting the Idalia School site, 

instead of the Training School site, for the location of a new consolidated elementary 

school: (1) lack of adequate land for expansion at the Training School site, and (2) the 

Board’s need for the existing space at the Training School in order to renovate and up­

grade the facilities to continue serving grades 7-12 (Defendants’ Proposed Factual Findings, 

August 10, 1989 (Rl-83-25 11 16). While the Board had previously indicated that it 

intended to up-grade the Training School, it was not until the proposed factual findings 

filed just before trial that it asserted that it needed the elementary grade level building 

space for the up-grade. Despite plaintiffs' repeated requests, in discovery, for any 

renovation plans for the Training School, and the fact that those plans existed at least as 

early as June 1989 (R4-445-46 [Truss]), they were not made available to plaintiffs until the 

second day of trial (R3-375 [Mason]).

At trial, the Board offered an additional rationale which it had never previously 

asserted in responses to interrogatories, documents produced during discovery, during the 

depositions or in Defendants’ Proposed Factual Findings (Rl-83-21-27). Superintendent

- 18 -



Grissett testified that as a matter of educational policy the Board did not want elementary 

students at the same site as junior high and high school students (R4-317-18 [Grissett]), and 

therefore had chosen the Idalia site over the Training School location.

The district court rejected the Board's assertion that there was not adequate 

property for expansion of the Training School. The court held that "[tjhere is property 

adjacent to the Talladega County Training School which if acquired by gift, purchase or 

condemnation, would have been suitable for expansion. This includes property owned by 

members of the Dumas family and the Lawson family." (R2-93-7 11 19). A subsequent 

finding by the district court that "adequate land consisting of a minimum of 15 acres was 

not readily available" (R2-93-17 11 16) is contradictory and inexplicable. The finding that 

there was property available is amply supported by record evidence, including testimony by 

Lawrence Dumas and Fred Lawson.

Mr. Dumas testified that members of his family owned approximately forty acres of 

land across the road from the Training School (see PX-17, property located next to Wesley 

Chapel, north of the school, see PX-48) (R4-476 [Dumas]), and perhaps also some property 

on the same side of the road as the school and that he had discussed with Mr. Stamps, 

principal of the Training School, the possibility of transferring or selling some land to the

Talladega County Board of Education for the school (id. at 477: see also PX-48).

Q. And what did you tell him?
A. I told Mr. Stamps that the Talladega County Board of Education had the 

power of imminent domain and could take whatever the property they 
wanted and that if he would have Mr. Gaines, the county board’s attorney, 
get in touch with me giving me a survey, showing precisely what he wanted, 
I would be glad to discuss it with Mr. Gaines on behalf of my children.

Q. Discuss what?
A. What they wanted to acquire and the reasonable value of it.

(R4-477-78.) This is confirmed by Mr. Stamps' letter to Dr. Grissett reporting that Mr. &

- 19 -



Mrs. Dumas "were very friendly and receptive to our request to acquire additional property 

for the school. . . .  I believe that he will sell, lease or assist in securing more land. The 

possibility exists that he may even donate some land to the school." (PX-48.)

Mr. Lawson testified that members of his family own land identified on PX-17 as 

parcel 27, which surrounds the Training School to the east, south, and west on both sides 

of the road (R3-192-94 [Lawson]). Mr. Stamps, the principal of the Training School, 

contacted Mr. Lawson about the possibility of acquiring a six acre, land-locked strip east 

of the football field for the school (R3-194-95 [Lawson]). After contacting members of his 

family, Mr. Lawson informed Mr. Stamps that his family would consider selling the 

property if absolutely necessary for expansion of the school and would prefer selling that 

lot rather than other lots (id. at 196). Mr. Lawson thereafter never heard back from Mr. 

Stamps about this land (id. at 195).

The parcel of land Mr. Lawson did not want to sell was an area called Lawson Park 

which is west of the school across the street in parcel 27 (R3-202 [Lawson]; DX-29). 

(Lawson Park is the area immediately east of parcels 18 and 26. on the west side of the 

same street, see PX-17.) Mr. Lawson reported that his family had developed the land as 

a park and made it available for community use at no charge and that Mr. Lawson 

operated a business at that site (R3-202-03 [Lawson]).

Contrary to Mr. Lawson's testimony that the family would have considered selling 

land, other than Lawson Park, the district court found that the Board was reasonable to 

assume that the Lawson family would not sell land to the Board. The court apparently 

based this conclusion on the following finding: "At one point in the past, the patriarch of 

the family is reputed to have told a former Board member that he would ‘freeze in hell’ 

before he would sell another piece of land to the County." (R2-93-15 H 7.) The only

- 20 -



"testimony" on this came from the Board’s attorney. Mr. Lawson testified that he "was at 

school in Chicago" and "did not know" what his grandfather had said, although he admitted 

that he "probably" said it (R3-198 [Lawson]). He testified, however, that his grandfather 

had died in 1967 — twenty-two years earlier — (R3-203), and that it would not be correct 

to assume that his family would not sell property to the Board (R3-198-99 [Lawson]).

Although no evidence was introduced to support the Board’s assertion that all the 

existing space at the Training School, which had been used for K-6 and 7-12 students, was 

necessary for the renovation for grades 7-12, the Court accepted the assertion as true. 

Plaintiffs urged that even if this were true, it would not have precluded locating the 

consolidated school at the Training School site. The district court found that the cost of 

constructing a new elementary school to serve 550 students would be the same whether 

constructed at the Idalia site or the Training School site (R2-93-4 H 8). The district court 

also credited the district’s "educational policy" justification, asserted for the first time during 

the trial. See Argument infra, pp. 42-46.

5. Barriers to Participation Bv Black Parents In School Board 
Decision-Making

a. Structural Barriers to Participation bv Blacks

Superintendent Grissett admitted that race affects almost every aspect of life in 

Talladega County (R3-264 [Grissett]). Prior to December of 1988, when the decisions 

challenged in this action were made, the Board of Education was comprised of five white 

persons.9 The Board acknowledges that the members were elected under an at-large 

voting scheme which diluted black voter strength and as a result no black person had ever 

been elected to serve on the Board. (PX-37 [Board Resolution of April 6, 1987]). Nor had

9Gay Langley, M.R. Watson. Joseph Pomeroy, Larrv Morris, and Dan Limbaugh.

- 21 -



any black person ever been appointed (R3-263-64 [Grissett]). Mrs. Langley, Mr. Limbaugh, 

and Mr. Watson all initially gained their seats on the Board by appointment (Rl-83-9 H 45: 

PX-54-8, 9 [Watson]). No special educational or employment background was required for 

these appointments. Mrs. Langley, a retired homemaker, and Mr. Watson, a farmer and 

store clerk, both have high school diplomas (PX-53-8; PX-54-8). Mr. Limbaugh, a real 

estate developer, has some college education (R4-480-81 [Limbaugh]).

The Board made an affirmative effort in 1981, when appointing Mr. Limbaugh, to 

select a person from the Childersburg community to replace the departing board member 

who was also from that community (R3-263 [Grissett]; R4-481 [Limbaugh]). Despite the 

fact that no black person had ever served on the Board, however, Dr. Grissett made no 

effort to seek out blacks for the position (R3-269 [Grissett]):

Q. You were asked was there any effort made to seek out blacks for that 
position. And what was your answer?

A. There was not a conscious effort at that time in regard to either 
blacks or whites.

Q. But I want you to read the answer.
A. There was not a conscious effort made in that regard at that time.

Through appointment. Mr. Limbaugh served for five years prior to standing for 

election (R4-481 [Limbaugh]). The district court found that the fact that no effort was 

made to seek blacks for Mr. Limbaugh’s position was not established (R2-93-10 11 26); 

however, there was no conflicting evidence offered on this point.

As a result of litigation brought bv black plaintiffs in Dillard v. Crenshaw County, 

Civ. Act. No. 85-T-1332-N, Mrs. Beulah Garrett became the Board’s first black member in 

December of 1988 (Rl-83-9 U 44), after this litigation was filed. At the time the Board's 

new construction and school closing plans were made, black citizens, who comprised a 

significant proportion of the county, had never had representation on the Board.



A Board resolution adopted May 12, 1988, prohibits~the recording "in any manner" 

of its meetings (Rl-83-7 H 34). Plaintiffs challenged this resolution in Count IV as violative 

of the First Amendment and a barrier to participation in Board proceedings.

b. Specific Barriers Plaintiffs Faced in Participating In the
Process Leading to the Challenged Decisions By the Board

In June of 1987, the Board approved the purchase of property for construction of 

the new 500 pupil elementary school (the Stemlev Bridge Road School)(Rl-83-5 H 20; PX- 

37 [June 1987 minutes]). The June 1987 decision to construct a new school for 500 pupils 

necessarily meant that the Board had decided as of that time not to expand the Training 

School elementary division to accommodate the 500 students. By October 7, 1987 the 

Board had taken steps to obtain property next to the Idalia school for the new construction. 

The Board purchased title insurance on the Juanita Hand property, which is immediately 

adjacent to the Idalia Elementary School off of Highway 34 (Rl-83-5 11 21), and in 

November 1987 took further steps to finalize the transaction (Rl-83-5 1111 22, 23 ; PX-43 

[composite exhibit]; see also Rl-83-6 H 25). On December 8, 1987, Superintendent Grissett 

notified the Alabama State Department of Education that the Board intended to build a 

")n]ew elemjentary] facility off of Highway 34 in Talladega to replace Idalia, Jonesview, and 

the Talladega County Training School elementary" facilities ( P X - 4 4 ;  Rl-83-5 11 24).

After seeing bids in the newspaper for school renovations that did not include the 

Training School, which was deteriorating and badly in need of renovation, plaintiffs became 

concerned that the Board was neglecting the Training School and perhaps planning to close 

it (R3-8, 9 [Elston]). On January 21, 1988. Mr. Augustus Elston, lead plaintiff in this case, 

sent a letter to Superintendent Grissett stating that concerned parents with children in 

attendance at the Training School were requesting permission to be heard at the next

- 23 -



meeting of the Board.10 Mr. Elston sent copies of this" letter to each of the Board 

members. (R3-93-8 11 23; PX-1.) On January 22, 1988, Dr. Grissett responded to Mr. 

Elston stating that he was referring the letter to Mr. Stamps, Principal of the Training 

School, for appropriate follow-up and indicated that he would be available to meet with 

Mr. Elston and Mr. Stamps following their meeting together (Rl-83-6 11 27; PX-2). Mr. 

Stamps did call Mr. Elston, who told Mr. Stamps that he felt the matter was beyond Mr. 

Stamps’ control (R3-15 [Elston]) because he knew that Mr. Stamps had no authority to 

keep the Training School from being closed or to determine the location of new school 

facilities. The Board concedes that Mr. Elston was correct (Rl-83-6 U 28).

On January 27, 1988, Mr. Elston again wrote to Dr. Grissett requesting that the 

concerned parents of Talladega County Training School be allowed the opportunity to be 

heard at the next Board meeting (PX-3). The letter requested that if the parents were not 

following the proper channels to get on the agenda, that they be informed of the correct 

procedure. Mr. Elston sent copies of this letter to each of the Board members. Neither 

Dr. Grissett nor anv Board member responded to this letter. (R2-93-9 11 24).

On January 28. 1988. State Superintendent of Education. Wavne Teague, approved 

the Idalia site, a tract of land known as the Juanita Hand property, as the location for the 

construction of a new kindergarten-through-sixth grade elementary school "to accommodate 

approximately 550 pupils residing in the Idalia, Talladega County Training School and 

Jonesview attendance areas" (Rl-83-6 H 29; PX-46).

Feeling frustrated and that they were being treated unfairly by the Board's failure 

to respond to their requests to be put on the agenda (R3-17 [Elston]), the parents’ group

10Mr. Elston is President of the Concerned Citizens of Talladega County Training 
School, a group of black parents which met regularly during this period (R3-11-12 [Elston]).

- 24 -



decided to make a third attempt. This time they wrote to Dr. Morris, President of the 

Board, and sent copies to Dr. Grissett and the Board members (PX-4). A group of ten to 

fifteen individuals participated in drafting the February 9, 1988 letter (R3-18 [Elston]), 

complaining about an atmosphere of racism and racially prejudiced occurrences, and 

expressing concern that the Training School had been marked for closure and been 

excluded from recent planning for facility improvements (R2-93-9 11 25; R3-17-19 [Elston]).

Dr. Morris responded to Mr. Elston’s letter of February 9, on February 13, 1988, 

stating that he had no knowledge of plans to close the Training School. He did not 

disclose the Board's plans to close grades K.-6 of the Training School. (Rl-83-6 11 30; PX-

5.) Mr. Elston testified that Dr. Morris’s letter was confusing to him given his belief that 

approval had already been given to build the new school and rumors that Jonesview and 

the elementary section of the Training School were to be closed (R3-19-20 [Elston]).

On February 22, 1988, Mr. Elston again wrote Dr. Morris, requesting a copy of the 

Board's Desegregation Plan and subsequent compliance and status reports (Rl-83-7 11 31; 

PX-6). There was no response to this letter (Rl-83-7 11 31). In an effort to gain 

information regarding the student and faculty assignment at Idalia. Jonesview, and the 

Training School, the Concerned Parents group thereafter wrote to the principals of three 

schools requesting student and faculty assignment data (Rl-83-7 II 33; PX-7; PX-8; R3-22- 

22 [Elston]). None of the requested information was provided (Rl-83-7 11 33). The only 

response was from Mr. Stamps, principal of the Training School, stating that he could not 

release the information (R3-22 [Elston]).

On March 22, 1988, the State Department of Education, notified Superintendent 

Grissett that it had received schematic plans for the proposed construction of a new 

elementary school for grades kindergarten through six. "to serve approximately 550 pupils

- 25 -



residing in the present Idalia, Talladega County Training School and Jonesview attendance 

areas," and that the project was approved (Rl-83-7 H 32; PX-47).

The Concerned Parents group ultimately contacted attorneys because they felt that 

they would be unable to deal with the County Board of Education on their own (R3-22 

[Elston]). On May 18, 1988, plaintiffs’ attorney wrote the School Board’s attorney asking 

for specific information regarding the Board’s plans for "school closings, changes in use or 

grade structure, renovations and new construction for the Talladega County Training 

School, Idelia [sic] Elementary School, and Jonesview Elementary School" (PX-9).

The response, dated June 23. 1988. acknowledged that the Board had acquired 

property adjacent to the Idalia Elementary school to construct a new school. However, 

despite the fact that Superintendent Grissett had notified the State Board in December 

of 1987. of plans to build the new school specifically for 550 elementary students in the 

Jonesview, Idalia, and the Training School zones (PX-44), and the State Board had 

approved the project (PX-46; PX-47), the June 23 letter to plaintiffs’ counsel did not 

acknowledge the Board’s plan to close grades K-6 of the Training School (PX-10: Rl-83-8 

11 36). The letter stated only that the new school "will accommodate students who are now 

enrolled at Idalia and students from the surrounding area. The attendance zone for 

students to attend the new school could include students now enrolled at Lincoln 

Elementary and Talladega County Training School Elementary" (PX-10)(emphasis 

supplied). The letter also stated affirmatively that the Board "has no plans to change the 

use of nor current plans for renovations at the Jonesview Elementary School." (id. at 

2)(emphasis supplied), that the plan was only in the "embryonic stage or is undeveloped to 

the extent that no definitive data is available," (PX-10)(emphasis supplied), and continued 

by stating, despite the fact that schematic plans and letters had been sent to the State



Board (PX-47), that "[tjhere are no written descriptions of the Board’s plans or proposal 

for closing, changes in use o[r] grade structure, renovations or new construction" (PX-10 

at 3). Plaintiffs’ counsel also requested a copy of the State Board of Education’s Facilities 

Reports for the past two years (PX-9). Although the Facilities Survey for School Year 

1986-87, the only one conducted by the State during this time period, (PX-19) was hand 

delivered to Superintendent Grissett on October 26, 1987 (R4-351 [Higginbotham]), 

plaintiffs were informed in the June 23, 1988 letter that the report had not been received 

and that it would be forwarded later (PX-10-3).

The Board concedes that the Superintendent did not attend any PTA meetings at 

the Training School to inform the parents of the Board's plans with respect to school 

closings (Rl-83-9 11 41), although he did attend PTA meetings at both Jonesview and Idalia 

to inform those parents of the Board’s plans (Rl-83-9 11 41). Ms. Janice Truss, president 

of the Talladega County Training High School Band Boosters and program Chairperson 

for the PTA (R4-444 [Truss]), testified at trial that Dr. Grissett had not attended a PTA 

meeting at the Training School in the past three years and that there had been no 

presentation by anyone at a PTA meeting concerning the closure of any part of the 

Training School (R4-445 [Truss]). Efforts to obtain information from the principal of the 

Training School also proved futile. Mr. Stamps informed Mr. Elston that he had no 

knowledge of the Board's plans (Rl-83-9 11 4 2 ). M s .  Truss testified that Mr. Stamps 

showed her the renovation plans in June of 1989 when she specifically asked to see them 

after noticing them in his office: however, she was instructed not to discuss the plans (R3- 

445-46). Mr. Elston also testified that there had been no notice of the Board’s plan to 

select a site for the new school or to close the elementary section of the Training School 

(R3-49-50).

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Plaintiffs’ efforts to obtain public documents also met with opposition. On June 28, 

1988, Ms. Barbara English and Mr. Elston went to the Board of Education office and 

requested copies of minutes of the meetings of the Board and offered to pay for copies. 

They were shown the minutes, but not allowed to make copies. (Rl-83-8 H 37.) Only after 

Mr. Elston and Ms. English contacted legal counsel about being refused copies of the 

documents and counsel contacted the Board’s attorneys were copies provided (Rl-83-8 H 

39). On August 12, 1988, Ms. English and Mr. Elston again went to the Board of 

Education office and requested copies of the minutes of Board meetings for the last few 

months. This time they were not shown the minutes and were informed that they would 

have to go through their attorney to get copies (Rl-83-8 11 40).

6. Interdistrict Transfers

The Talladega County school district loses state funds of at least $3,000 per student 

per school year for each resident child who leaves the County System and transfers to the 

Talladega City school system (Rl-83-10 11 49). Interdistrict transfers of the sort discussed 

below are commonly referred to as "zone jumping."

Based upon information available to the Talladega City School District regarding 

students who attend the Talladega City schools but reside in Talladega County, it is 

undisputed that significant numbers of white children assigned to the County schools attend 

the public schools of Talladega City (Rl-93-10 H 30; PX-32; PX-50; PX-35; R3-113-15 

[Jones]). Of the data made available that plaintiffs could confirm at trial,11 the minimum 

number of white children transferring out of the district from the Training School for 

school year 1989 was 54 (PX-50). Enrollment figures from Jonesview for the school years

uSee PX-50; PX-32 [pp. 1-10 list interdistrict transfers identified by Talladega City that 
plaintiffs could not confirm] and R3-151-73 [Thompson].

- 28 -



1984-85 through 1988-89 show an average of 68 white students per year, while the Training 

School, to which Jonesview students are assigned for grades 7-12, has an average of 17 

white students per year in grades 7-12 (PX-14). Interdistrict transfers by white Jonesview 

students avoiding the Training School were documented by the Jonesview PTA President, 

Mrs. Jones (R3-113-15 [Jones]; PX-35).

The district court found that "[m]anv of the white students are likely avoiding 

historically black Talladega County Training School" (R 1-93-11 11 36). This is not a new 

circumstance (Rl-93-10 H 30). On April 19, 1979, the Justice Department notified counsel 

who represented both the Talladega City Board of Education and the Talladega County 

Board of Education that it believed the Talladega City School System was violating a 

provision in its school desegregation order that prohibited transfers where the cumulative 

effect would reduce desegregation in either district (Rl-93-11 11 33; PX-29). Following a 

request by the FBI in July of 1979, prompted by complaints from community members (Rl- 

95 Attach. A), the County School District determined in August of 1979 that there were 

over 200 children, the majority of whom were white, residing in the County but attending 

the Talladega City Schools (PX-30). Dr. Grissett agreed that assuming that these children 

stayed in the City Schools, that some (those in the lower grades in 1978-79) would have 

graduated as recently as the 1989 school term (R2-257 [Grissett]).

The Justice Department apparently failed to follow up on this information and there 

is no indication from the documents or the Docket Sheet in Lee (Aplts. App. at 1) that 

private plaintiffs were notified of the information in PX-30. Nor did Talladega County 

officials attempt to stop the zone-jumping. Dr. Grissett testified that after the zone­

jumping was confirmed in 1979 he did not contact any of the parents of the children going 

out of zone, nor did he contact the City school district to try to stop these transfers (R3-257



[Grissett]), nor ask the court to enforce Talladega City s court order. Despite the Board s 

awareness over the years of the zone-jumping problem, it concedes that it has not notified 

parents of children going out of zone that their actions are improper (Rl-83-10 H 48), or 

contacted the Talladega City School system in an effort to stop these transfers (R2-93-11 

11 31). The Superintendent of the Talladega City School System, has not been contacted 

by officials of the Talladega County Board of Education regarding the zone-jumping from 

the County to the City during his five years in the system (R2-131 [Mills]). In fact, the 

President of the County Board, Dr. Larry Morris, testified that when he was asked by a 

parent how to send a child out of zone, he told the parent how it was done (R3-465 

[Morris]). The district court found that the Talladega County Board has taken few, if any, 

steps to stop the loss of white students from predominately and historically black Talladega 

County Training School (R2-93-12 H 41).

In contrast, when the Oxford City School System proposed the annexation of a part 

of the Talladega County School District in the early 1980's, a move that would result in the 

loss of a significant number of white students from the Hill-Munford attendance zone, the 

Talladega County Board of Education filed a motion in federal court in Lee to try to stop 

the loss of these students (Rl-83-10 11 50: R2-93-12 H 41). The students who were to be 

affected by the Oxford City annexation were almost all white. The Hill-Munford 

attendance zone to which these students were assigned was and continues to be a majority 

white attendance zone. (Rl-83-10 1111 50,51).

In 1984. the City of Svlacauga sought to annex portions of the County located in the 

Talladega County School District. Because these annexations would have caused the loss 

of significant numbers of white students from the southern party of the County, the 

Talladega County Board of Education sought the assistance of the Justice Department in

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an effort to halt these annexations (Rl-83-10 U 52; PX-31). The schools in the southern 

portion of the County closest to Svlacauga City all have consistently had majority white 

enrollments during the period of the attempted annexations (R1 -83-11 11 54).

In 1986, when the City of Svlacauga again sought to annex portions of the Talladega 

County School District, the Talladega County Board of Education passed a resolution 

authorizing the Superintendent, together with the Board’s attorney, to take all appropriate 

action to prevent the annexations (Rl-83-11 11 53; PX-37 [Board Minutes from January 30, 

1986]; PX-39).

In their Offer of Proof on remand, plaintiffs submitted that the Talladega City Board 

of Education had approximately 350 out-of-district students, that the majority of these 

students were white and that Talladega City had annexed three heavily white areas for the 

purpose of allowing students in these areas to attend legally the City School System (R2- 

123-6-9 and Exhibits 1-10 at Tab 2). The district court refused to allow this evidence to 

be introduced in the record (R2-125; R2-127).

Scope of Review

The district court's factual determinations are reviewed under the clearly erroneous 

rule set out in Fed. R. Civ. P. 52(a). The ultimate inquiry is whether the "reviewing court 

on the entire evidence is left with the definite and firm conviction that a mistake has been 

committed." Anderson v. Bessemer City. 470 U.S. 564, 573 (1985)(quoting United States 

v. United States Gypsum Co., 333 U.S. 364 (1948)).

The district court’s dismissal of Count’s 1 and IV. presumably under Fed. R. Civ. P. 

12(b)(6) for failure to state a claim, are reviewed de novo. Refusal to exercise pendent 

jurisdiction over the state law claim (Count V) is reviewed for an abuse of discretion. 

Phillips v. Smallev Maintenance Services. Inc.. 711 F.2d 1524, 1531 (11th Cir. 1983).

- 31 -



The district court’s orders denying plaintiffs' request_to supplement the record on 

remand and refusing to require defendants to comply with discovery requests prior to 

school year 1985-86 are reviewed under the abuse of discretion standard.

Summary of the Argument

I. THE DISTRICT COURT ERRED IN FINDING NO DISCRIMINATION 
ON COUNTS II AND III.

This case has substantial and undisputed classic evidence of discrimination, which 

the district court simply ignored: a pattern of discriminatory school closings and grade

restructuring; site selection for new school construction repeatedly in white communities; 

a failure to respond to black parents' efforts to participate in the decision-making process 

and misrepresentation of the facts when black parents requested information; selection of 

an economically inefficient new construction and closing plan that left the Training School 

an all-black and grossly underutilized facility: a post hoc justification offered by defendants 

for refusing to expand the Training School which is directly contrary to the rationale used 

to justify closing the historically black Phyllis Wheatley School; reassignment of the majority 

of the black children from Hannah Mallory Elementary School to the Training School via 

a non-contiguous zone which caused overcrowding at the Training School and required the 

use of temporary classrooms; and the failure by the Board to take any efforts to stop the 

loss of white students from predominantly black schools in contrast with significant steps 

and legal action taken to stop the loss of white students from majority white schools. 

Despite this evidence, the district court found plaintiffs had not even established a prima 

facie case of discrimination, that defendants had shown legitimate, non-discriminatory 

justifications for their actions, and that plaintiffs, therefore, had failed to prove their claims. 

Even where the district court's sole reason for denying relief for the segregative inter­

- 32 -



district transfers -  the absence of the Talladega City Board of Education as a party -- is 

no longer available, the district court refused to grant relief. This clearly is reversible error.

II. THE DISTRICT COURT ERRED IN DISMISSING COUNT I (BREACH 
OF CONTRACT).

The district court dismissed the breach of contract claim on ground that any such 

claim must be pursued in the litigation in which it was created. While that may be common 

practice, it is well-established that claims arising under contractual agreements may be 

pursued in separate litigation. Fairfax Countvwide Assoc, v. County of Fairfax, 571 F.2d 

1299, 1302 (4th Cir.), cert, denied. 439 U.S. 1047 (1978).

III. THE DISTRICT COURT ERRED IN DISMISSING COUNT IV (FIRST 
AMENDMENT!.

The burdens on plaintiffs’ First Amendment rights caused defendants’ prohibition 

on the recording "in any manner" of Board proceedings, are legally significant and provide 

the basis for a legal claim under the First Amendment, see Belcher v. Mansi, 569 F. Supp. 

379, 381-85 (D.R.I. 1983). The district court, which stated no reason for dismissing the 

claim, erred as a matter of law.

IV. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFFS’ STATE LAW 
CLAIM f RIGHT TO INSPECT AND COPY PUBLIC DOCUMENTS!.

The district court had the power to exercise pendent jurisdiction and judicial

economy, convenience, and fairness to the litigants would have been favored by doing so.

Where such power exists it is the rare and exceptional case where the court refuses to hear

the claim. Phillips v. Smalley Maintenance Seiwices. Inc.. 711 F.2d 1524, 1531 (11th Cir.

1983). Here the district court had no reason for refusing to entertain the claim and abused

its discretion in doing so.



V. THE DISTRICT COURT ERRED IN DENYING PLAINTIFFS' 
REQUEST TO SUPPLEMENT THE RECORD ON REMAND.

While plaintiffs contend that on this record there is sufficient evidence of a violation 

of the Fourteenth Amendment, Title VI, and the Title VI regulations, if the Court finds 

otherwise, plaintiffs submit that the district court abused its discretion in refusing to 

consider evidence that after trial the board limited the Training School zone, contrary to 

Dr. Grissett’s trial testimony, and that there continues to be large numbers of interdistrict 

transfers to the Talladega City School district. Absent a finding of discrimination on the 

existing record, the district court's abuse of discretion in refusing to consider this evidence 

requries a remand.

Argument

I. THE DISTRICT COURT ERRED IN FINDING NO DISCRIMINATION

Plaintiffs are entitled to relief if they proved either discriminatory intent or effect 

with respect to the challenged practices of the school board: a pattern of racially

discriminatory school closings and new construction culminating in the closing and 

construction plans to replace and enhance the Idalia Elementary School as the new 

consolidated elementary school and to close grades K-6 at the Talladega County Training 

School, a racially discriminatory reassignment plan after closing the Hannah Mallory 

School, and a practice of allowing and condoning discriminatory interdistrict transfers by 

white students avoiding historically or presently majority black schools, all of which is 

overlaid by a practice of obstructing participation by black parents in the decision-making 

processes of the Board.

- 34 -



A. Legal Standards

1. Fourteenth Amendment

In order to establish a violation of the equal protection clause of the Fourteenth 

Amendment plaintiffs must show intentional discrimination. The Supreme Court in Village 

of Arlington Heights v. Metropolitan Hous. Dev. Corp.. 429 U.S. 252 (1977), held that 

discriminatory intent could be established through such evidentiary showings as substantial 

disparate impact, a history of discriminatory official actions, procedural and substantive 

departures from the norms generally followed by the decision-maker, and the legislative or 

administrative history of the decision. Id. at 265-69.12 Discriminatory intent may be found 

although "the record contains no direct evidence of bad faith, ill will or any evil motive on 

the part of public officials." Williams v. City of Dothan. 745 F.2d 1406, 1414 (11th Cir. 

1984).

2. Title VI and the Title VI Regulations

Title VI of Civil Rights Act of 1964, 42 U.S.C. § 2000d provides:

No person in the United States shall, on the grounds of race. . . .  be excluded 
from participation in. be denied the benefits of. or be subjected to 
discrimination under any program or activity receiving Federal financial 
assistance.

The regulations promulgated pursuant to Title VI provide:

In determining the site or location of facilities, an applicant or recipient may 
not make selections with the effect of excluding individuals from, denying 
them the benefits of, or subjecting them to discrimination under any 
programs to which this regulation applies, on the ground of race, . . . ; or 
with the purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the Act or this regulation. * &

12See also Keves v. School Dist. No. 1. Denver. 413 U.S. 189. 207-08 (1973), citing Nve
& Nissen v. United States. 336 U.S. 613. 618 (1949)("Evidence that similar and related 
offenses were committed . . . tend[s] to show a consistent pattern of conduct highly relevant 
to the issue of intent").

- 35 -



34 C.F.R. § 100.3(b)(3)(emphasis added).

Restricting] an individual in any wav in the enjoyment of any advantage or 
privilege enjoyed by others receiving any service, financial aid, or other 
benefit under the program.

Id. at § 100.3(b)(l)(iv).

While Title VI itself uses an intent standard, claims based on the Title VI 

regulations are to be determined using a disparate impact analysis.13 Thus plaintiffs must 

make out a prima facie claim of racial discrimination by showing that a facially neutral 

practice has a racially disproportionate impact, whereupon the burden shifts to the 

defendant to show a substantial legitimate justification for its practice. If defendant carries 

this burden, plaintiffs may prevail by showing that there is an equally effective alternative 

that results in less discrimination, or by showing that defendants’ justification is 

pretextual.14

3. Discoverable and Admissible Evidence 

Evidence related to past discriminatory practices is admissible and probative on these 

claims, even if those past practices standing alone could not, arguendo, provide a basis for 

relief.15 Thus, even if the district court in Lee had given explicit approval to the earlier

‘̂ Georgia State Conference of'Bianches of NAACP v. State of Georgia. 775 F.2d 1403, 
1417 (11th Cir. 1985), relying on Guardians Ass n v. Civil Service Comm’n of New York 
City, 463 U.S. 582 (1983); Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630 n.9 
(1984); Alexander v. Choate. 469 U.S. 661 (1985).

“Id-
lsRiddick v. School Bd. of Norfolk. 784 F.2d 521, 539 (4th Cir.)("while the history of 

discrimination is not dispositive, it is relevant to a court's determination of the school 
board’s intent"), cert, denied, 479 U.S. 938 (1986); see also Los Angeles Branch, NAACP 
v. Los Angeles Unified School Dist., 750 F.2d 731. 740-41 (9th Cir. 1985)("the parties may 
introduce evidence of events occurring on or before May 2, 1969, [the effective date of the 
res judicata bar of the prior litigation] so long as it is relevant to a claim of de jure

(continued...)

- 36 -



closings of black facilities, that would neither justify a res judicata bar with respect to 

schools closed or planned to be closed after the March 13, 1985 dismissal of Lee, nor would 

it prevent a court from finding that a racially discriminatory pattern is now apparent based 

upon this history in conjunction with the present plan.15 16 The district court therefore 

abused its discretion in denying discovery regarding events prior to the 1985-86 school year, 

which prejudiced plaintiffs’ ability to contest certain factual findings made by the court. 

See supra at 14. Moreover, the district court’s refusal to consider the evidence in the 

record relating to the history of school closings and restructuring was clear prejudicial 

error.

4. Application of These Legal Standards

Below we review the record evidence separately for each of the categories of 

discriminatory practices challenged by plaintiffs. The district court’s findings of no 

discrimination rest on inferences drawn on a factual record that is largely undisputed. The 

court’s conclusions are clearly erroneous because the district court simply ignored the 

factual record established.

15(...continued)
segregative acts committed by defendants after that date"); Bronson v. Board of Educ. of 
Cincinnati. 687 F.2d 836, 841 (6th Cir. 1982)("evidence of events and practices which 
occurred prior to that date [of termination of prior litigation] are admissible if relevant to 
the post-1965 inquiry"); Bronson v. Board of Educ. of Cincinnati. 525 F.2d 344. 350 (6th 
Cir. 1975)(same), cert, denied. 425 U.S. 934 (1976).

16See, e.g.. Davis v. School Dist. of Pontiac, 309 F. Supp. 734. 741 (E.D. Mich. 
1970)(finding racially discriminatory pattern of school construction despite earlier federal 
court approval of construction of all-black school in black neighborhood), affd. 443 F.2d 
574, 576 (6th Cir.), cert, denied. 404 U.S. 913 (1971).

- 37 -



B. Repeatedly Closing Historically Black Schools While Maintaining and 
Enhancing Historically White Schools Denies Black Citizens Equal 
Treatment By Refusing to Provide Them The Same Benefits Afforded 
White Citizens.

The law is well established that closing schools for racial reasons is impermissible 

under Brown v. Board of Educ.. 349 U.S. 294 (1955), (BrownJI), which requires that 

school systems be operated free from racial discrimination. In Bell v. West Point Mun. 

Separate School Dist.. 446 F.2d 1362 (5th Cir. 1971), the Court of Appeals for the former 

Fifth Circuit struck down a proposal to close two historically black schools located in a 

black neighborhood because of fear on the part of the school board that whites would not 

attend these schools. Closing the schools cut out available classroom space which, in turn, 

caused other schools to conduct classes on a split session. The court held that closing the 

schools because whites would refuse to attend the location constituted racial discrimination 

in violation of the Fourteenth Amendment to the Constitution.

Similarly, in Lee v. Macon County Bd. of Educ.. 448 F.2d 746 (5th Cir. 1971), the 

former Fifth Circuit held that closing historically black schools and dispersing their students 

among formerly white schools was not an acceptable method of desegregation where the 

black facilities were not inferior, where crowding of the white schools would result, and 

where the reason for closing the schools was fear that whites would desert the public school 

system. The court also recognized that the plan imposed an unnecessary burden on the 

children of both races solely to avoid assigning white students to a formerly black school.1

The injury caused by this practice was acknowledged by the former Fifth Circuit in 

Lee v. Macon County. 448 F.2d at 754 and n.12 where it cited with approval the cogent 17

17See also Arvizu v. Waco Indep. School Dist.. 495 F.2d 499, 505 (5th Cir. 1974) (Board 
has a "heavy burden" to justify closing or reducing the grade structure of schools used for 
the instruction of minority students).

- 38 -



explanation given in Brice v. Landis, 314 F. Supp. 974 (N.D. Cal. 1969):

The minority children are placed in the position of what may be described as 
second-class pupils. White pupils, realizing that they are permitted to attend 
their own neighborhood schools as usual, may come to regard themselves as 
"natives" and to resent the negro children bussed into the white schools every 
school day as intruding "foreigners." It is in this respect that such a plan, 
when not reasonably required under the circumstances, becomes substantially 
discriminating in itself. This undesirable result will not be nearly so likely if 
the white children themselves realize that some of their number are also 
required to play the same role at negro neighborhood schools.

The court also stated, 448 F.2d at 753-54:

Brown II, supra, calling for ‘a racially nondiscriminatory school system,’ and 
its progeny require not only that past discriminatory practices be over come 
by affirmative actions but also that new forms of discrimination not be set up 
in their place. Closing formerly black school facilities for racial reasons 
would be such a prohibited form of discrimination. ‘Such a plan places the 
burden of desegregation upon one racial group.'

The court in Lee v. Macon County (Anniston), No. CV70-251-S. slip op. (N.D. Ala. 

March 17, 1983) (Hancock, J.), affd sub nom. Lee v. Anniston City School System, 737 

F.2d 952 (11th Cir. 1984), recognized as important factors to be considered in a school 

closing case: 1) that the new school was to be located in a racially neutral site, 2) that the 

location was chosen unanimously bv a five-member board, of which the chair and one other 

member was black, 3) that the Board's plan was the result of over three years of study, 

wide publicity, public hearings, and public input involving every element of the citizenry of 

the community, and that a significant number of blacks in the community supported the 

plan, and 4) the Board's plan was the most reasonable from an economic and educational 

viewpoint. This Court, in affirming the district court, stressed that the Board's plan was 

developed through a decisionmaking process that involved active participation by both the

- 39 -



white and black citizens. Lee v. Anniston City School System, 737 F.2d at 957.18

Here the evidence establishes a significant disparity in the number of historically 

black schools and historically white schools that have been closed or reduced in grade 

structure (see supra at 12-14). The sites selected for both the new middle school in 

Childersburg and the new elementary school were not racially neutral as in Lee v. Macon 

(Anniston). The Phyllis Wheatley school was an integrated school in a predominately black 

community which the Board closed and rebuilt in a white community; the plan challenged 

here includes the closing of the elementary grades of two majority black schools, the 

Training School and Jonesview, and construction of the new consolidated school in a white 

community.

Black citizens were not only excluded from the decision-making process, they were 

affirmatively discouraged from participating by practices that made them feel they were 

being treated unfairly and that the Board was hostile to them. There were no blacks on 

the Board, despite numerous opportunities to select a black person through appointment. 

The most simple request -  to be placed on the agenda for a Board meeting -  was not 

granted. Efforts to gain information about the Board's plans were responded to with 

misleading and inaccurate information, or not responded to at all. There was no advance 

notice of the Board’s plans, no public meetings, no newspaper or radio notice. Even after 

the Board decided to close the elementary section of the Training School, the Board did 

not notify parents of children at the Training School of its decision. The Board did not 

conduct any study of the facilities and the locations to determine the best site.

18Accord Adams v. Board of Public Educ., 770 F.2d 1562 (11th Cir. 1985) (board 
decision based on a detailed study of attendance figures, organizational structure, racial 
composition, location of schools, physical condition, finances, three public hearings, and 
many discussions).

- 40 -



The district court did not find the Board's plan to be justified on grounds of 

economic efficiency. The court found that the cost of constructing a "new" elementary 

school to serve 550 students would be the same whether constructed at the Idalia site or 

the Training School site (R2-93-4 H 8).

Plaintiffs offered expert testimony to the effect that renovation (as planned) and 

expansion of the Training School to accommodate the elementary students in the three 

zones would have resulted in a substantial savings compared to the Board’s plan to build 

a new elementary school and renovate the Training School as a separate grade 7-12 facility 

(R3-360-90, 425-36 [Mason]; PX-52). While the district court made no factual finding on 

this point, the Board's acknowledgement of the substantial economic savings gained from 

school consolidation strongly supports the conclusions of plaintiffs' expert that expansion 

of the Training School for the elementary students would have resulted in significant 

economic benefits not available under the Board’s plan.

In fact, the Board previously endorsed and detailed the economic benefits of 

consolidation in its Petition for Approval for Construction of a New School Complex [(K- 

12) in Childersburg], when requesting approval of the Wheatley closure. It stated that the 

economic benefits of consolidation are, inter alia, 1) savings on labor costs (less staff). 2) 

savings on equipment costs by consolidated use of equipment on one site, 3) service trips 

for bus maintenance to only one site (R2-95 Attach. B at 5; R3-245).

Dr. Morris, president of the County Board, agreed that small schools were 

economically inefficient;

I think it’s absurd financially to maintain these small schools. . . .  It think it 
is a waste of the taxpayers' money. . . . It's absurd to continue to have these 
multiple administrators and multiple custodial care and multiple lunchroom 
services.

- 41 -



(R4-468 [Morris].) Dr. Morris also concluded that small schools were educationally 

unsound:

In small schools you’re unable to have an expanded curriculum, you’re unable 
to offer the advanced sciences, you’re unable to even offer the special ed 
courses, sometimes in a certain setting you’d like to offer.

(R4-467-68 [Morris].) In light of the Board’s acknowledgment of the financial and

educational benefits of consolidation, the district court clearly erred in failing to recognize

that the Board’s plan was economically inefficient in comparison with a consolidation of

schools at the Training School location.

While the district court correctly recognized that the Board's original justification 

for its plan -- lack of adequate land — was pretextual (R2-93-7 H 19), the court committed 

clear error in relying on the Board’s post hoc justification — that for reasons of educational 

policy the Board did not want elementary students at the same site as middle school and 

high school students — as a legitimate, non-discriminatorv reason for the Board’s plan. 

The court ruled (R2-93-15 H 7) that

[rjegardless of whether land might have been available at the Talladega 
County Training School site, the Board made a sound decision from an 
educational viewpoint not to locate the new elementary school at the site of 
a middle school/high school.

The following undisputed evidence directly contradicts the proffered justification: 

1) the Board currently operates three K-12 schools — Fayetteville, B.B. Comer, and 

Winterboro (Rl-32; PX-14), and at the Lincoln school grades K-4 are across the street 

from the Lincoln high school connected by a bridge (R4-387 [Mason]); 2) Mrs. Jones 

testified that at the Training School, which was K-12 at the time of trial, the elementary 

and high school students were in separate facilities, ate at different times, played at 

different times, and did not mingle together (R2-125 [Jones]); 3) when the Board wanted

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to close historically black Phyllis Wheatley Middle School in 1984, in its "Petition For 

Approval of Construction for a New School Complex." signed by the Superintendent and 

all the Board members, the Board asserted reasons of economic efficiency and educational 

policy to urge approval of its proposal "to build a new high school, new middle school and 

ultimately a complete new school complex kindergarten [sic] through grade twelve, on the 

site" (R2-95 Attach. B at 4); 4) despite representations to the court and the parties in 1984 

that would lead to a conclusion that the Childersburg High School facility was to be 

replaced along with the Wheatley Middle School, neither rebuilding nor major renovation 

of the school was contemplated in the plans (PX-41), after court approval for closure of 

the historically black Wheatley Middle School was obtained; 5) the Board offered no reason 

and indeed none is apparent why the alternative offered by plaintiffs at trial — build the 

new elementary school across the road from the high school at the Training School site — 

would not have accomplished the Board’s stated purpose of separating elementary and 

secondary students while avoiding the racially discriminatory aspects of the Board’s plan.

Plaintiffs do not claim that the decision to consolidate these elementary schools is 

discriminatory: rather it is the site selection and underutilization of the Training School that 

are discriminatory because they perpetuate segregation and inferior education for blacks. 

Thus, the Board's refusal to make the attendance zones for grades 7-12 at the Training 

School co-extensive with those for the new elementary zone, stated prior to trial, made 

evident its racial motivation. Despite the Board’s intention to spend $500,000 to renovate 

the Training School, the refusal to assign more students, particularly the white students in 

the Idalia zone, left the Training School as a small, virtually all-black school. The small 

size of the school’s enrollment puts the school at risk of being closed because of gross 

underutilization of the facility.

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The Alabama State Board of Education urges schooLdistricts to plan large school 

centers identifying as benefits of larger programs: broader education programs, greater 

holding power (fewer drop-outs), attraction of better qualified teachers, and economic 

efficiency (PX-19-9). The State Board requires a minimum of 175 students in grades seven 

through nine and 175 in grades ten through 12 for "approved educational centers" (PX-19- 

10). Under the Board’s plan the Training School will not even meet the State Board’s 

minimum requirements for an approved educational center.

Enrollment at the Training School has been consistently declining (PX-14; PX-19-8)

and the school is extremely small.

Grades 1987-88 1988-89
7-9 144 140

10-12 158 139

(PX-14). A comparison of net and gross square feet per student unit in the school system 

illustrates the underutilization of the Training School under the Board’s plan. Net and 

gross square feet per student at the Training School will be substantially above that of every 

other school in the system.

Board's Plan for Training School (7-12)
Net Sq. Feet Gross Sq. Feet

88-89(enrollment 7-12 of 284) 161.5 195.49
(assuming an enrollment of 300) 153.00 186.00

Fayetteville (K-12) 100.55 119.55
B.B. Comer (K-12) 66.07 80.26
Winterboro (K-12) 77.90 87.68
Talla County Training (K-12) 86.70 104.95
Lincoln (K-4, 9-12) 84.39 107.26
Childersburg High (9-12) 114.28 142.01
Munford (7-12) 82.60 104.89
Drew Middle Sch. (5-8) 71.53 88.03
Sycamore School (K-8) 92.31 112.29
Jonesview Elem. (K-6) 111.35 132.21

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Net Sq. Feet Gross Sq. Feet

Childersburg Elem. (K-6) 
Ophelia Hill Elem. (K-6) 
Watwood Elem. (K-6)

63.03
51.04 
67.15

82.96
65.05
76.08iy

The planned underutilization of the Training School is a clear misuse of taxpayer dollars 

and makes evident that it was racial concerns and not rational decisionmaking that guided 

the decisions challenged here.

C. Closing Hannah Mallory And Reassigning The Majority Of Its 
Students To The Training School Via A Non-Contiguous 
School Zone Which Required The Use Of Temporary 
Classrooms Is A Classic Discriminatory Practice.

It is undisputed that when the Board closed Hannah Mallory and Superintendent 

Grissett subdivided its zones, that the majority of the Hannah Mallory students were 

reassigned to the Training School by creating a non-contiguous elementary zone for the 

Training School (DX-30: R4-493 [Romanej; R2-93-6 11 13). Because there was insufficient 

space at the Training School for the reassigned students, the Board had to use temporary 

classrooms for these students (R4-493-94 [Romane]).

Strongly supporting a conclusion that this reassignment plan is racially discriminator.’ 

is the fact that the plan violates the court order in Lee which the Board committed itself 

to continue to follow. Dr. Grissett acknowledged the Board's continuing commitment to 

comply with those orders at the trial: "May 1 remind you that we re still operating under 

the court order" (R4-322). The Joint Stipulation of Dismissal in Lee, incorporates the 19

19The numbers in this chart were derived by dividing the net square footage of the 
buildings by the total student enrollment for the 1988-89 school year and doing the same 
with respect to gross square footage, which results in the net and gross square feet per 
student. PX-20 sets out the net square footage (internal area) and gross square footage 
for each school (summary page for each school, pp. 11. 36-37, 51-52. 60, 81-82. 110-11, 142, 
176, 199-200, 218, 236. 253, 288-89). and PX-14 sets out the student enrollment for each 
facility by year.

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Board’s Resolution which states, ”[t]he Talladega County System shall be operated at all

times so as to conform with . . .  all previous orders of this Court" (PX-49[unnumbered page

6]; R3-226; see a]so R3-231[Grissett]). The February 3, 1970, court order provides:

All school construction, school consolidation, and site selection (including the 
location of anv temporary classrooms! in the system shall be done in a 
manner which will prevent the recurrence of the dual school structure.

(PX-49; R2-227 [Grissett]) (emphasis added). The district court’s ruling that the existence

of this provision was not established (R2-93-7 H 16) is inexplicable, and clearly erroneous.

given the court order (PX-49) which was read aloud during the trial (R3-229 [Grissett]).

Furthermore, the creation of noncontiguous school zones is a practice that is highly

suspect because it is a commonly used means of furthering racial discrimination and

segregation. The Supreme Court listed it among practices that "could not ‘reasonably be

explained without reference to racial concern’...and that...‘intentionally aggravated, rather

than alleviated,’ racial separation in the schools." Columbus Bd. of Educ. v. Penick, 443

U.S. 449, 461-62 (1979) (citations omitted).2"

Here the segregative effect cannot be disputed. By use of the non-contiguous

elementary satellite zone for the Training School the Board was able to avoid sending

substantial numbers of black students to the Childersburg schools which had majority white

enrollments. Here the temporary classrooms were used to enforce segregation by 20

20See also Lee v. Macon County Bd. of Educ., 448 F.2d 746, 749 ("Hobson City, which 
had been part of Oxford, was separately incorporated after the area's black residents were 
gerrymandered out of Oxford"): Hanev v. County Bd. of Educ. of Sevier County, Ark.. 410 
F.2d 920, 924 (5th Cir. 1969)(district lines drawn reflecting a discriminatory pattern); 
Clemons v. Bd. of Educ. of Hillsboro. 228 F.2d 853. 855 (6th Cir. 1956) (zone divided into 
two completely separated parts). Other cases where discrimination was found with non­
contiguous zones as a factor include United States v. Board of School Comm'rs. 332 F. 
Supp. 655, 667-68 (S.D. Ind. 1971): and Spangler v. Pasadena City Bd. of Educ., 311 F. 
Supp. 501, 508 (C.D. Cal. 1970).

- 46 -



increasing the concentration of blacks at 99% black Talladega County Training School, and 

the district court so found (R2-93-6 H 15). The Board offered no reason why the portable 

classrooms placed at the Training School could not have been placed at the Childersburg 

school, if needed, to accommodate these children in a desegregated environment. The 

district court committed clear error in concluding that plaintiffs had not proven that this 

was a discriminatory practice.

D. Permitting White Students To Avoid Historically Black Schools 
Increases The Duality Of The School System, Makes The 
Training School 99% One-Race, And Is Discriminatory.

This Court in United States v. Lowndes County Bd. of Educ.. 878 F.2d 1301 (11th

Cir. 1989), recently found a violation of a court-ordered transfer provision almost identical

to the one the Talladega County Board agreed to continue to comply with when it sought

dismissal of Lee. The provision states:

If the Talladega County School Board grants transfers to students living in 
the district for their attendance at public schools outside the district...it will 
do so on a non-discriminatory basis, except that it shall not consent to 
transfers where the accumulative effect will reinforce the dual school system 
in either district.

(PX-49 [Feb. 3, 1970 order].) The district court found that the existence of this provision 

was not established (R2-93-11 11 32). This finding is clearly erroneous (PX-49: R3-230 

[Grissett]). No conflicting evidence was presented.

In Lowndes County, in finding a violation of the similar court order, this Court ruled 

that the provision21 obligates the school district to monitor the effect of transfers both on 

its own desegregation and on the districts to which it sends or from which it receives.

21See Singleton v. Jackson Municipal Separate School District. 419 F.2d 1211 (5th Cir. 
1969), cert, denied, 396 U.S. 290 (1970). These were standard provisions in most 
desegregation orders.

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Lowndes. 878 F.2d at 1304. The test for determining a violation is whether the cumulative

impact of the transfers serves to reduce desegregation or promote a dual system as judged 

on a school-by-school basis. Id. The court should look to whether the transfers "increase 

the racial identifiability of the schools," id. at 1305, and are likely to alter significantly the 

general perceptions of a school's racial identity or the behavior of persons who rely on such 

factors in choosing which school to send their child. Id.

Here the Board has violated its commitment to continue to comply with its Singleton 

provision regarding transfers, which is strong evidence of discriminatory intent. The data 

for the 1988-89 school year show at least 54 white students leaving the Training School 

zone and attending the city schools (PX-50. Appendix-B). Enrollment figures over the 

years show a consistent failure of white students from the Jonesview Elementary School to 

enroll at the Training School for grades 7-12 (PX-14; PX-35). The Training School is 

undoubtedly racially identifiable and the almost complete absence of white students 

enforces that perception and is likely to alter the behavior of white parents in determining 

where to send their children to school. Indeed, the district court found that "[mjany of the 

white students are likelv avoiding historically black Talladega County Training School" (R2- 

93-11 H 36). Here the relief requested by plaintiffs -  return of the out-of-district students 

and a realignment of the 7-12 attendance zone to make it co-extensive with the Stemley 

Bridge Road Elementary School zone — would eliminate the racial identifiability of the 

school.

Despite knowledge of this problem since 1979 and the loss of significant state 

funding (see supra at 28-29), the Board failed to make any effort to stop this longstanding 

practice. This is in contrast to the Board's aggressive efforts to stop the loss of white 

students from majority white school zones in the district. The district court s finding that

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the racial make-up of the Talladega City and County school systems as a whole have

remained relatively constant (Rl-19 11 22) is legally irrelevant. The Court in Lowndes

County stated, ”[n]or is the issue settled by evidence that McKenzie’s white enrollment has

not appreciably increased throughout the years. A Singleton violation has still occurred if

the 9.3% increment of change has resulted in a perception of the school being more

"white." 878 F.2d at 1307. Here, with just the transfers identified at trial, the Training

School would immediately drop from being virtually 100% black to 85% black. Plaintiffs

anticipate this number being higher with the post-trial reports from Talladega City of over

350 out-of-district students (see R2-123, Tab 2). Taken together, this evidence provides

overwhelming support for a finding of both discriminatory intent and effect in violation of

the Fourteenth Amendment, Title VI and the Title VI regulations.

In its September 19, 1989 decision, reaffirmed January 7, 1992, the district court

denied relief on the inter-district transfer claim, although finding that it was on-going and

racially discriminatory in its origins, (R2-93-10, U 30), because

Talladega County school personnel are, as a practical matter, unable to 
prevent this, since the enrollment and attendance of a public school student 
is verified and determined bv the gaining school system (i.e., the city school 
system) and not by the losing school system (in this case, Talladega County.)

R2-93-16.

Plaintiffs submitted on remand that given the decision of this Court directing that 

the Talladega City Board of Education be added as a party, that the district court should 

reverse its denial of relief on the zone-jumping claim in view of the fact that the court now 

has before it the party that, according to the district court, had prevented the original 

defendants from stopping the zone-jumping. The district court still denied relief, and 

thereby committed reversible error.

- 49 -



II. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFFS’ 
BREACH OF CONTRACT CLAIM

Count I of the Complaint alleged that defendants have breached an agreement 

embodied in the Joint Stipulation of Dismissal in Lee that incorporated a Resolution of the 

Board stating that it will continue to comply with the court orders in Lee (Rl-1). Plaintiffs 

alleged that they were parties to the agreement or third-party beneficiaries of it and they 

sought to enforce the agreement in this action. The district court dismissed this Count, 

stating that "where court orders or agreements implicit in court orders are a basis for relief, 

that basis should be pursued in Lee v. Macon." (Rl-13-2.) The district court did not find 

that there was no agreement between the parties, it simply refused to allow consideration 

of the issue in this action. That was legal error.

As third-party beneficiaries of the agreement between the Lee plaintiffs and the 

defendants which resulted in the 1985 dismissal of that suit, the plaintiffs in the instant case 

are entitled to bring their claim that defendants have breached the agreement before the 

district court. Eatmon v, Bristol Steel & Iron Works, Inc., 769 F.2d 1503, 1514-17 (11th 

Cir. 1985)(jurisdiction under 28 U.S.C. § 1331 ):22 * see also Bossier Parish School Bd. v. 

Lemon. 370 F.2d 847, 850 (5th Cir.), cert, denied. 388 U.S. 911 (1967). It is doubtless true 

that both court decrees and settlement agreements are most often enforced or modified in 

the lawsuits in which they were e n t e r e d . Howe ve r ,  it is also clear that they may be

22Plaintiffs alleged jurisdiction pursuant to § 1331 in 11 2 of the Complaint (Rl-1).

Z3E,g„ Fairfax Countvwide Citizens Assoc, v. Countv of Fairfax, 571 F.2d 1299, 1302-03 
(4th Cir.), cert, denied, 439 U.S. 1047 (1978); Aro Corp. v. Allied Witan Co., 531 F.2d 1368 
(6th Cir.), cert, denied. 429 U.S. 862 (1976); Meetings and Expositions, Inc, v. Tandy Corp., 
490 F.2d 714, 717 (2d Cir. 1974). See, e ^ ,  Fed. R. Civ. P. 60(b)(savings clause).

- 50 -



litigated in separate, independent proceedings in equity.24

III. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFFS' FIRST
AMENDMENT CLAIM

In Count IV of the Complaint plaintiffs alleged that defendants’ restrictions upon 

the ability of citizens to make personal records of the public proceedings of the Talladega 

County Board of Education by taking notes or making tape recordings of public meetings 

violates the First Amendment (Rl-1). In its December 29, 1988 Order the district court 

dismissed Count IV of the Complaint, without anv explanation (Rl-13).

Dismissal of the plaintiffs’ First Amendment claim was clear error. The prohibition 

on note-taking and tape recording bv members of the public, implemented on May 12, 

1988, by the Talladega County Board of Education raises serious First Amendment issues 

because it burdens activity inextricably intertwined with protected speech. Black citizens 

of Talladega County who attend school board meetings surely are entitled to communicate 

to others their understanding and impressions of what takes place at those meetings. That 

the note-taking or tape recording barred by the School Board would facilitate such speech 

and make it more accurate, thus contributing to the robust public debate which the First 

Amendment nurtures, is ironic. Therefore the restriction burdens the exercise of the right 

of free association, and the right to assemble and petition for redress of grievances in

24United States v. Timmons. 672 F.2d 1373. 1378-80 (11th Cir. 1985)(discussing 
independent action in equity), citing Bankers Mortgage Co. v. United States. 423 F.2d 73, 
78 (5th Cir.), cert, denied. 399 U.S. 927 (1970); Jackson v. Carter Oil Co.. 179 F.2d 524 
(10th Cir.)(new injunctive decree issued in new civil action brought to enforce provisions 
of decree entered in prior litigation), cert, denied. 340 U.S. 812 (1950); Humble Oil & 
Refining Co. v. American Oil Co.. 259 F. Supp. 559 (E.D. Mo. 1966)(in new civil action 
against successors of plaintiff which secured decree restraining use of certain symbols and 
trademarks in 1937 antitrust suit, court denies requested modification of 1937 decree on 
merits).

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violation of the First Amendment.25 Dismissal of Count IV_should be reversed.

IV. THE DISTRICT COURT ERRED IN DISMISSING THE STATE LAW CLAIM

[I]t is unusual for a court to decline to exercise [the] power [to hear pendent 
claims] where it exists . . . .  ’[Although there are cases in which courts have 
used their discretion to refuse to hear a pendent claim, these are exceptional 
and ordinarily the power is exercised if it is found to exist.’

Phillips v. Smalley Maintenance Services. Inc., 711 F.2d 1524, 1531 (11th Cir. 1983)

(citations omitted).

Here the court had the power to hear the state law claim regarding the Board’s 

refusal to allow plaintiffs to copy public documents despite Alabama state law giving every 

citizen such a right. Ala. Code § 36-12-40. The court exercised subject matter jurisdiction 

over the substantial federal claims and the state claim derives from a common nucleus of 

operative fact: as part of their complaint of racial discrimination, plaintiffs rely on the fact 

that they were twice denied the right, granted by the State of Alabama, to copy public 

documents and were therefore required to resort to legal avenues to enforce these rights. 

See United Mine Workers v. Gibbs, 383 U.S. 715. 725-26 (1966). The district court stated 

no reason why pendent jurisdiction over the state law claim should not be exercised, and 

abused its discretion in dismissing the claim arbitrarily.

V. THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING 
PLAINTIFFS’ REQUEST TO SUPPLEMENT THE RECORD ON REMAND

On remand, plaintiffs’ sought to supplement the record to show that after the trial

^ See Belcher v. Mansi. 569 F. Supp. 379, 381-85 (D.R.I. 1983)(serious First 
Amendment issue presented by school committee ban on tape recording public meetings), 
and cases cited. See also Hatcher v. Board of Public Educ., 809 F.2d 1546, 1558 (11th Cir. 
1987) (school employee has First Amendment associational right to request participation 
of additional representatives in meeting about job status); Weiss v. Willow Tree Civic 
Assoc.. 467 F. Supp. 803, 816-17 (S.D.N.Y. 1979)(First Amendment protects concerted 
action of civic association members to attend and speak out at meetings of public body).

- 52 -



defendants rejected plaintiffs’ request to expand the northern boundary of the Training 

School attendance zone (making that zone co-extensive with the newly created K-6 zone 

for the Stemley Bridge Road Elementary School). Plaintiffs made this request in order to 

enhance desegregation and increase the size of the school. Instead of granting plaintiffs’ 

request, the Board made the attendance zone for the Training School even smaller than 

it had been. Plaintiffs’ Offer of Proof on Remand. Aplts. App. at 43-45. 52-57. Plaintiffs 

also sought to show with supplemental evidence on remand that the interdistrict transfers 

to Talladega City were ongoing and substantial with Talladega City reporting over 350 out- 

of-district students, that the City had begun to annex heavily white sections of the Count)’ 

for the purpose of protecting the interdistrict transfers, and that officials of the Talladega 

County Board of Education have not taken any steps to oppose the annexations despite the 

loss of significant funding and student enrollment. Aplts. App. 46-49, 62-83.

This is material and probative evidence on the issues presented. None of the parties 

to the action objected to the presentation of this evidence. In fact, the Talladega County 

Board of Education suggested that an evidentiary hearing should be conducted (R2-124-3). 

The case was in a posture where the full record could be developed and there would be no 

possibility of unfair prejudice to any of the parties to the action. The district court's sole 

reason for denying the motion — in effect because it was not required to supplement the 

record by order of this Court (R2-127-4) — reveals that the court's refusal to hear plaintiffs’ 

supplemental evidence lacked a substantive basis and was arbitrary and capricious. As 

such, it is reversible error.

Plaintiffs submit that the Court need reach this issue only if it concludes that there 

is insufficient evidence on the record before it to find discrimination. In that instance, the 

case should be remanded with directions that the district court allow plaintiffs to

- 53 -



supplement the record and then reconsider the claims presented in view of that evidence.

For the foregoing reasons, plaintiffs respectfully request that the district court s 

rulings challenged above be reversed with directions that an order be entered directing the 

Talladega County Board of Education to make the attendance zone for the Training School 

(now Central High School) co-extensive with that established for the Stemley Bridge Road 

Elementary School and directing both the Talladega County Board of Education and the 

Talladega City Board of Education to stop all interdistrict transfers in violation of the 

Singleton provision in their desegregation decrees. Plaintiffs further request that the Court 

reverse the dismissal of Counts I, VI and V and remand for a full trial on these counts.

Conclusion

Respectfully submitted,

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 

99 Hudson Street, 16th FI. 
New York, New York 10013 
(212) 219-1900

JANELL M. BYRD 
1275 K Street. N.W., #  301 
Washington, D.C. 20005 
(202) 682-1300

Anniston. AL 36202 
(205) 236-1240

Counsel for Plaintiffs-Appellants

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Certificate of Service

Appellants and one copy of the Record Excerpts and Appellant s Appendix were served 
by first class. United States mail, postage pre-paid. on defendants in this action, addressed 
as follows:

George C. Douglas. Jr.. Esq.
Ralph Gaines. Jr.. Esq.
Gaines. Gaines &. Gaines. P C. 
Attorneys at Law 
127 North Street 
Talladega, Alabama 35106

Stan Thornton. Esq.
Wooton Thornton. Carpenter. O’Brien

&. Lazenbv 
P.O. Drawer 2777 
Talladega, Alabama 35160