Correspondence from Van Wye to Rosenbaum

    In the

UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 92-6033

QUINTON ELSTON, et al.,

Plaintiffs-Appellants

vs.

TALLADEGA COUNTY BOARD O F EDUCATION, et al.,

Defendants-Appellees.

On Appeal from the United States District Court 
___________for the Northern District of Alabama___________

PETITION FOR REHEARING and 
SUGGESTION FOR REHEARING IN BANC

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

ELAINE R. JONES 
Director-Counsel

THEODORE M. SHAW 
NORMAN J. CHACHKIN 

NAACP Legal Defense & 
Educational Fund, Inc.

99 Hudson Street, 16th fl.
New York, New York 10013

JANELL M. BYRD 
NAACP Legal Defense & 

Educational Fund, Inc. 
1275 K Street, N.W., Suite 301 
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Appellants



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

CERTIFICATE OF INTERESTED PERSONS 

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 Gwynethe Ball, Plaintiff 

Kierston Ball, by parent/guardian Gwynethe 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, formerly 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/guardians Augustus and Cardella Elston, Plaintiff 

Jerrk Evans, by parent/guardian Kate Evans, Plaintiff 

Ralph Gaines, Jr., Counsel for Defendants 

Gaines, Gaines & Gaines, Counsel for Defendants

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

Damien Garrett, by parent/guardian Althea Garrett, Plaintiff 

Vernon Garrett, by parent/guardian Estella Garrett, Plaintiff 

Beulah Garrett, Defendant

Kereyell Glover, by parent/guardian Delilah Glover, Plaintiff 

Lance Grissett, Defendant 

Hon. James H. Hancock, Judge

Stephanie Y. Hill, by parent/guardian Connally 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 

Elaine R. Jones, Counsel for Plaintiffs

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

Quinedell Mosley, by parent/guardian Quinell Mosley, Plaintiff

Joseph Pomery, Defendant

Reid & Thomas, Counsel for Plaintiffs

Theodore M. Shaw, Counsel for Plaintiffs

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

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 parents/guardians 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

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STATEMENT OF COUNSEL REGARDING IN BANC RECONSIDERATION

I express a belief, based on a reasoned and studied professional judgment, that the 

panel decision is contrary to the following decisions of the Supreme Court of the United 

States or the precedents of this Circuit (or of the former Fifth Circuit, see Bonner v. City 

of Prichard, 661 F.2d 1206 (11th Cir. 1981)(m banc)), and that consideration by the full 

court is necessary to secure and maintain uniformity of decisions in this Court:

Guardians Association v. Civil Service Commission of New York City, 463 U.S. 582 
(1988)

Connecticut v. Teal, 457 U.S. 440 (1982)

United States v. Scotland Neck City Board o f Education, 407 U.S. 484 (1972)

United States v. Lowndes County Board o f Education, 878 F.2d 1301 (11th Cir. 1989)

Lee v. Eufaula City Board of Education, 573 F.2d 229 (5th Cir. 1978)

Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 
1969), rev’d in part sub nom. Carter v. West Feliciana Parish School Board, 397 
U.S. 232 (1970)

I further express a belief, based on a reasoned and studied professional judgment, 

that this appeal involves one or more questions of exceptional importance:

1. Must plaintiffs prove, in order to make a prima facie showing (under the 

regulations issued pursuant to Title VI of the 1964 Civil Rights Act) of disparate impact 

resulting from a school board’s adoption of boundary lines that exclude substantial numbers 

of white students from the attendance zone of a predominantly black school, that if they 

were assigned to the school, these white students would enroll rather than attend public 

schools in other jurisdictions or private schools?

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2. May a Court of Appeals affirm a district court judgment by repeatedly inferring 

necessary findings of fact which the district court did not make — including by inferring 

such findings based upon the district court’s conclusory statements that the law was not 

violated — and then shielding such findings from meaningful scrutiny by declaring them to 

be not "clearly erroneous" under Fed. R. Civ. P. 52(a)?

3. Does the "Singleton" prohibition against inter-district transfers of students that 

impede desegregation, or are likely to alter a school’s perceived racial identity, no longer 

require a school district "to monitor the effect of such transfers, both on its own 

desegregation efforts and on the desegregation process of the school district from which 

it receives, or to which it sends, its students," United States v. Lowndes County Board of 

Education, 878 F.2d 1301, 1304 (11th Cir. 1989)(emphasis added)?



Table of Contents

Pape

Certificate of Interested Persons .......................................................................................C-l

Statement of Counsel Regarding In Banc Reconsideration ..............................................i

Table of Authorities ..............................................................................................................iii

Petition for Rehearing and Suggestion for Rehearing In B a n c .........................................1

Statement of the Issues Meriting In Banc C onsideration...................................................1

Statement of the Case Proceedings ......................................................................................... 1

Statement of Facts ..................................................................................................................... 2

Reasons for Granting Rehearing or Rehearing In Banc ...................................................4

A. Elements of the prima facie case under Title VI regulations ...........................4

B. Appellate review of "implicit" findings ................................................................... 9

C. Inter-district tran sfe rs .............................................................................................. 12

C onclusion.................................................................................................................................. 15

Certificate of Service................................................................................................................. 16

Table of Authorities

Cases:

Adams v. Richardson, 356 F. Supp. 92 (D.D.C.), affd, 480 F.2d
1159 (D.C. Cir. 1973) ..............................................................................................  12n

Alexander v. Choate, 469 U.S. 287 (1985) ...........................................................................4

Bazemore v. Friday, 478 U.S. 385 (1986) ........................................................................... 8n

Berkman v. City of New York, 536 F. Supp. 177 (E.D.N.Y.
1982), affd, 705 F.2d 584 (2d Cir. 1983).................................................................  8n

Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) .............................................. ii

Connecticut v. Teal, 457 U.S. 440 (1982) ....................................................................ii, 8, 9

- in -



Table of Authorities (continued)

Cases (continued):

Corder v. Kirksey, 585 F.2d 708 (5th Cir. 1978) ............................................................ l ln

Craig v. Alabama State University, 804 F.2d 682 (11th Cir. 1986) ..................................9

Cross v. Baxter, 604 F.2d 875 (5th Cir. 1979) ...................................................................  11

David v. Garrison, 553 F.2d 923 (5th Cir. 1977) ............................................................ l ln

Elston v. Talladega County Board of Education, No. 89-7777 (11th Cir.
April 30, 1 9 9 1 )...............................................................................................................1

Georgia State Conference of Branches of NAACP v. Georgia, 775
F.2d 1403 (11th Cir. 1985)..................................................................................  6n, 7n

Guardians Association v. Civil Service Commission of New York
City, 463 U.S. 582 (1988)..................................................................................ii, 4, 6n

Harris & United States v. Bullock County Board of Education, Civ. No.
2073-N (M.D. Ala. June 14, 1 993 )........................................................................  14n

Ionmar Compania Naviera, S.A. v. Olin Corporation, 666 F.2d 897 (5th Cir.
1 9 8 2 )...................................................................................................................  11, 12n

Keyes v. School District No. 1, Denver, 413 U.S. 189 (1973) .........................................  6n

Kilgo v. Bowman Transportation, Inc., 789 F.2d 859 (11th Cir. 1986)............................... 9

Lee v. Etowah County Board of Education, 963 F.2d 1416 (11th Cir. 1992) ............... 15

Lee v. Eufaula City Board of Education, 573 F.2d 229 (5th Cir. 1 9 7 8 )............  ii, 13, 15

Mills v. Polk County Board of Public Instruction, 993 F.2d 1485 (11th Cir. 1993) . . 14n

Municipal Leasing Corporation v. Fulton County, 835 F.2d 786 (11th Cir. 1988) . . . .  11

Phenix City Board of Education v. Teague, 515 So. 2d 971 (Ala. Civ. App. 1987) . . 14n

Powers v. Alabama Department of Education, 854 F.2d 1285 (11th
Cir. 1988)......................................................................................................................  7n

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ..........................................................  8n

Page

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Table of Authorities (continued)

Page

Cases (continued):

Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 
(5th Cir. 1969), rev’d in part sub nom. Carter v. West Feliciana 
Parish School Board, 397 U.S. 232 (1970)....................................... ii, iii, 13, 14, 15

Stephen v. PGA Sheraton Resort, Ltd., 873 F.2d 276 (11th Cir. 1988) ........................  7n

Transport Equipment Company v. Guaranty State Bank, 518 F.2d 377 (10th Cir.
1 9 7 5 )........................................................................................................................... 12n

United States v. Lowndes County Board of Education, 878 F.2d 1301
(11th Cir. 1989) .............................................................................ii,iii, 1, 13, 14n, 15

United States v. Board of Public Instruction, 395 F.2d 66 (5th Cir. 1 9 6 8 ).................  14n

United States v. Scotland Neck City Board of Education, 407 U.S. 484 (1972) . . . .  ii, 5

United States Postal Service Board of Governors v. Aikens, 460 U.S.
711 (1983) ...................................................................................................................  7n

Wards Cove Packing Company v. Atonio, 490 U.S. 642 (1989)....................................... 7n

Williams v. City of Dothan, 818 F.2d 755 (11th Cir. 1987)..............................................  6n

Wright v. Council of City of Emporia, 407 U.S. 451 (1972) ............................................ 6n

Statutes:

Civil Rights Act of 1991, Pub. L. No. 102-166, § 105(a), 105 Stat.
1071, 1074-75 (1991)(codified at 42 U.S.C. § 2000e-2(k)).................................... 7n

Rules:

Fed. R. Civ. P. 5 2 (a ) ..........................................................................................................  jjj; \

11th Cir. Rule 3 5 -8 ....................................................................................................................2

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Table of Authorities (continued)

Regulations:

34 C.F.R. § 100.3(b)(1)..........................................................................................................8n

Legislative Materials:

H.R. Rep. No. 102-40, 102d Cong., 1st Sess., pt. I (1991), reprinted
in 1991 U.S.C.C.A.N. 549 .........................................................................................  7n

Page

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PETITION FOR REHEARING and 
SUGGESTION FOR REHEARING IN BANC

Statement of the Issues Meriting In Banc Consideration

1. Must plaintiffs prove, in order to make a prima facie showing (under 
the regulations issued pursuant to Title VI of the 1964 Civil Rights Act) of 
disparate impact resulting from a school board’s adoption of boundary lines 
that exclude substantial numbers of white students from the attendance zone 
of a predominantly black school, that if they were assigned to the school, 
these white students would enroll rather than attend public schools in other 
jurisdictions or private schools?

2. May a Court of Appeals affirm a district court judgment by 
repeatedly inferring necessary findings of fact which the district court did not 
make — including by inferring such findings based upon the district court’s 
conclusoiy statements that the law was not violated — and then shielding such 
findings from meaningful scrutiny by declaring them to be not "clearly 
erroneous" under Fed. R. Civ. P. 52(a)?

3. Does the "Singleton" prohibition against inter-district transfers of 
students that impede desegregation, or are likely to alter a school’s perceived 
racial identity, no longer require a school district "to monitor the effect of 
such transfers, both on its own desegregation efforts and on the 
desegregation process of the school district from which it receives, or to which 
it sends, its students," United States v. Lowndes County Board o f Education, 
878 F.2d 1301, 1304 (11th Cir. 1989)(emphasis added)?

Statement of the Case Proceedings

On a prior appeal in this matter, this Court per curiam vacated the judgment based 

upon a finding that the District Court abused its discretion in denying two motions: one to 

add a party defendant and the other to admit two additional attorneys for plaintiffs to 

practice pro hac vice. Elston v. Talladega County Board o f Education, No. 89-7777 (11th Cir. 

April 30, 1991). On remand, the District Court announced that it would limit any 

additional evidence to matters which could not have been presented during the initial trial 

in the absence of the additional party, or the attorneys. Plaintiffs waived any additional 

evidentiary hearing under these limited circumstances, and the District Court re-entered 

its initial judgment.



This action was originally filed on December 6,1988 alleging that specified practices 

and policies of the Talladega County Board of Education violated the Fourteenth 

Amendment, Title VI of the Civil Rights Act of 1964 and its implementing regulations, the 

First Amendment, or the Alabama "Open Records Act," or were a breach of contract.

Of relevance to this Petition, the District Court found, inter alia, that there was no 

violation of the Equal Protection Clause of the Fourteenth Amendment, nor of Title VI, 

nor of the Title VI regulations with respect to (a) the discontinuance of elementary grades 

at the historically black Talladega County Training School ("Training School") and the 

construction of a new elementary school (to which students formerly attending the Training 

School were assigned) adjacent to the site of a formerly white elementary school that had 

burned down; (b) the configuration of the attendance zone created for the new elementary 

school and for the middle and high school grades remaining at the Training School; (c) the 

school board’s failure to take any action (prior to construction of the new school) to 

implement its official policy against zone-jumping by attempting to stop pupils living in the 

Training School zone from enrolling in the separate Talladega City school system; or (d) 

the reassignment of pupils from an all-black elementary school, when it was closed, to the 

Training School, which required the creation of a non-contiguous attendance area for the 

Training School and the addition of portable classrooms at the site to accommodate 

resulting overcrowding. These aspects of the District Court’s judgment were affirmed in 

their entirety by the panel.

Statement of Facts

As reflected in the lengthy opinion of the panel, the evidentiary presentation in the 

district court was detailed and the facts are somewhat complex. Their complete recitation 

here would consume more space than is permitted by 11th Cir. Rule 35-8 and is

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unnecessary to the framing or comprehension of the legal issues raised herein. We 

summarize below the context in which those issues arise.

Plaintiffs sought to challenge in this action a series of school board decisions that 

they alleged had a negative impact upon the size, utilization and racial composition of the 

Training School, and upon the class whom they represented: First, when a nearby, all-black 

elementary school was discontinued, the district assigned most of its students to the 

Training School, even though this required the addition of portable classrooms to the 

Training School and even though the additional territory was not contiguous to the prior 

elementary grade-level attendance area of the Training School.1

After a formerly white elementary school (also nearby) burned down, the School 

Board decided to discontinue elementary grades at the Training School, build a new facility 

next to the site of the burned school, close a third (formerly white) elementary school and 

assign all elementary students in the area to the new building, rather than expand the 

elementary grade-level capacity of the Training School and assign additional white pupils 

to the facility. The Board also determined not to assign all graduates of the new school 

to the Training School for the middle and high school grades; instead, the Superintendent 

testified at trial, portions or the whole of the former attendance area of the burned, 

historically white, facility would be excluded from the Training School’s grades 7-12 zone.2 

At no time during the course of these events did the school district make any attempt to 

prevent pupils living within the attendance zone of the Training School (either when it was

*The new, non-contiguous elementary-grade area assigned to the Training School 
geographically abutted the larger zone from which high school pupils were assigned to the 
Training School at the time.

2See slip op. at 2868. It is not disputed that after the trial concluded, the high school 
attendance area for the Training School was drawn to exclude all of the former zone of the 
school which burned.

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a K-12 facility or after it served only the secondary grades) from enrolling in the separate 

Talladega City school system, even though the non-attendance of these pupils (most of 

whom were white) at the Training School contributed to its racial identifiability, the County 

school system lost ADA revenues for each student who went into the City, and zone­

jumping violated official Board policy.

REASONS FOR GRANTING REHEARING OR REHEARING IN BANC

The panel opinion in this case announces a wholly novel legal standard for 

establishing a prima facie case under the implementing regulations for Title VI of the 1964 

Civil Rights Act, which is without any support in Title VII jurisprudence (from which this 

Court and others have borrowed in Title VI cases), which has never before been applied 

to desegregation cases, and which effectively eviscerates the "disparate impact" cause of 

action recognized in Guardians Association v. Civil Service Commission o f New York City, 

463 U.S. 582 (1988) and Alexander v. Choate, 469 U.S. 287, 292-93 (1985).3 The panel 

decision also abandons equally well settled principles of appellate review. Finally, it 

effectively repudiates remedial requirements that have been well-established elements of 

school desegregation law in this and the predecessor Fifth Circuit for nearly twenty-five 

years.

A. Elements of the prima facie case under Title VI regulations

The panel opinion in this case holds that, in order to make out a prima facie case 

under the "effect" standard of the Title VI regulations, plaintiffs must prove not only that

3In addition to these legal issues, at numerous points the panel’s opinion rests upon 
incorrect statements about the record or the facts, including in one instance a failure to 
acknowledge a decision of this Court in a related case about which the panel was notified, 
see infra p. 15. We refer to a few such errors in the balance of this Petition.

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challenged decisions of the School Board had a disparate impact, but also that the same

conditions would not have occurred even if the Board had made different decisions. Slip

op. at 2859-60. The panel labels this as a requirement of showing a "causal connection"

linking decision and impact, but its application of the standard demonstrates that it has

erected a wholly new and insurmountable barrier to disparate impact claims under Title VI.

Thus, the panel holds that the gerrymandering of the Training School’s high school

attendance zone, to exclude white areas that were already joined together with that zone

for elementary school assignments, is not actionable (slip op. at 2869-70):

. . . the district court did find that assigning the children from the former 
Idalia zone to the Training School for grades 7-12 would have significantly 
improved integration at the Training School. However, . . .  we believe that 
the district court implicitly found that the Board’s failing to send the Idalia- 
zone children to the Training School had no significant effect on the school’s 
racial identifiability and level of utilization, because the district court did not 
believe plaintiffs had proven that white Idalia-zone students, if assigned to 
the Training School, would have attended that school rather than city schools 
or private schools. . . . Since a plaintiff must demonstrate a causal link 
between a challenged practice and the disparate impact identified to make 
a prima facie case under the Title VI regulations . . .  the district court 
properly ruled in defendants’ favor on plaintiffs’ Title VI regulations 
challenge to the Board’s choice of attendance zones.

We are aware of no other school desegregation opinion which imposes such a proof 

requirement upon plaintiffs challenging the validity of attendance zoning that is projected 

to result in substantially one-race school enrollment. In particular, claims that alternative, 

more integrative zoning configurations will result in "white flight" that will render the 

rezoning ineffective have long been rejected. United States v. Scotland Neck City Board of 

Education, 407 U.S. 484, 493-94 (1972).4 Moreover, the showing described by the panel

“It makes no difference, for this case, that the Scotland Neck school system was still 
under judicial supervision in a desegregation case at the time of the Scotland Neck decision 
while the original Talladega County federal court desegregation case has been dismissed. 
The legal significance of continuing judicial supervision is that an effect standard, rather

(continued...)

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sets an impossible standard for black plaintiffs to meet. It would require admissions against 

interest by school officials or testimony by whites already zone-jumping that they would 

stop the practice. Either scenario is, as a practical matter, fanciful. Yet indisputably, and 

as recognized even by the District Court in this case, the School Board’s attendance zones 

assign white pupils away from the Training School, which is already racially identifiable as 

a black school.4 5 The zoning thus unquestionably contributes to the continuing racial 

identifiability of the Training School. No more is required to establish a prima facie case 

under the Title VI regulations. Cf. Keyes v. School District No. 1, Denver, 413 U.S. 189, 211 

(1973)(school board may rebut prima facie showing of unconstitutional segregation either 

by disproving segregative intent or showing that past segregative acts "did not create or 

contribute to the current segregated condition" (emphasis added)).

4(...continued)
than an intent standard, applies. See Keyes v. School District No. 1, Denver, 413 U.S. 189, 
208 (1973); Wright v. Council o f City o f Emporia, 407 U.S. 451, 461-62 (1972); cf. Williams 
v. City of Dothan, 818 F.2d 755, 757 (11th Cir. 1987)(in action to enforce earlier decree, 
effect standard applies). A claim under the Title VI regulations, as the panel recognized, 
is subject to the disparate impact (effect) standard, see slip op. at 2858, citing Guardians 
Association v. Civil Service Commission o f New York City, 463 U.S. 582, 584 n.2 (1988) and 
Georgia State Conference of Branches o f NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir 
1985).

5Application of the panel’s standard of proof is particularly ironic in this context. The 
Training School was created and maintained for many years as an all-black facility by the 
Talladega County School Board, thus afixing its racial identity. It was never effectively 
desegregated. After the federal court suit involving the system was dismissed, the School 
Board closed an all-black school and sent most of its students to the Training School, thus 
further underscoring its racial identification. White parents and students avoided the 
school because of its racial identification, but the School Board never attempted to stop this 
"zone-jumping," and so perpetuated that racial identity. The panel opinion now insulates 
from challenge the School Board’s decision to make assignment changes that will further 
reinforce the school’s identification unless plaintiffs can show that the avoidance behavior 
of white parents that is rooted in the discriminatory attitudes and biases of the dual system 
will not recur. This shifting of responsibility from the tortfeasor to the victim can be 
understood only according to the logic of Alice in Wonderland.

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Nor can the panel’s requirements for a prima facie case of disparate impact be 

squared with the approach taken in Title VII suits, upon which the analysis in a Title VI 

regulations case is modeled.6 The panel opinion requires plaintiffs, in order to establish 

a prima facie case, to disprove every hypothetical alternative explanation for the disparate 

impact conditions that can be conjured up. Thus, on this record, where the School Board 

never claimed nor presented any evidence (testimonial or documentary) that the Training 

School zone was drawn to exclude white areas because of an expectation that students 

residing in those areas would fail to attend the Training School if assigned there, the panel 

holds that plaintiffs failed to make out a prima facie case because they did not anticipate 

and disprove this defense.7 This burden far exceeds the quantum of proof that plaintiffs

6Slip op. at 2859 n.14; Georgia State Conference, 775 F.2d at 1417. Prior to the decision 
in Wards Cove Packing Company v. Atonio, 490 U.S. 642 (1989), this Circuit had not 
determined whether there was a causation element to the prima facie case in disparate 
impact suits. See Stephen v. PGA Sheraton Resort, Ltd., 873 F.2d 276, 280 n.5 (11th Cir. 
1989). Wards Cove enunciated a causation requirement to focus the statistical analysis in 
a suit where plaintiffs challenged multiple facially neutral employment practices that they 
claimed were responsible for underrepresentation of minorities in an employer’s workforce. 
See 490 U.S. at 657; compare, e.g, Powers v. Alabama Department o f Education, 854 F.2d 
1285, 1293 (11th Cir. 1988). The Wards Cove causation requirement is inapplicable to this 
matter, because plaintiffs’ complaint is that the attendance zone fashioned for the Training 
School excludes white students who are in the same zone with the Training School area for 
elementary grades. There is neither ambiguity about the cause for the configuration of the 
zone (the Board’s decision to adopt it) nor uncertainty about where it assigns students. In 
any event, Title VII has now been amended to overturn this aspect of the Wards Cove 
decision. Civil Rights Act of 1991, Pub. L. No. 102-166, § 105(a), 105 Stat. 1071, 1074-75 
(1991)(codified at 42 U.S.C. § 2000e-2(k)); see H.R. Rep. No. 102-40, 102d Cong., 1st 
Sess., pt. I, at 30-32 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 568-70.

7Since this case was fully tried rather than dismissed at the close of plaintiffs’ proof, it 
is unclear why the panel discussed the requirements for a prima facie case at all. See United 
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-15 text at n.4 (1983). 
By doing so, the panel opinion overlooks the fact that, since the district court did not 
dismiss the case at the close of plaintiffs’ proof, cf R3-270 (no "directed verdict"), 
defendants were bound to prove that there were other reasons for the impact, see infra note 
8. No alternative reason was even articulated by the School Board.

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must satisfy to prevail on the merits in Title VII cases.8

The approach of the panel opinion is analogous to that rejected by the Supreme 

Court in Connecticut v. Teal, 457 U.S. 440 (1982), which sustained a disparate impact 

challenge to a test that disproportionately disqualified minority applicants from further 

consideration for promotion, even though minority workers as a class received promotions 

proportional to their representation in the work force. The Court reasoned that Title VII 

protected individuals from being denied opportunities to advance — as well as promotions 

-- on the ground of race, color, religion, sex or national origin. Id. at 446-49.9 This

8See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 244, 252-53 (1989)(disparate 
treatment case)(opinion of Brennan, Marshall, Blackmun & Stevens, JJ.)(once employee 
shows that unlawful as well as lawful criteria contributed to challenged decision, employer 
must prove by preponderance that same decision would have been reached without 
consideration of unlawful criterion); id. at 259-60 (opinion of White, J., concurring in 
judgment)(once employee shows unlawful criterion was substantial factor, burden shifts); 
id. at 270 (opinion of O’Connor, J., concurring in judgment)(same); Bazemore v. Friday, 478 
U.S. 385, 398, 400-01, 403 n.14 (1986)(disparate impact case)(plaintiff may prevail by 
relying in part on regression analysis including less than all possible explanatory variables; 
defendants should demonstrate that omitted factors would change result of analysis); 
Berkman v. City o f New York, 536 F. Supp. 177, 206 (E.D.N.Y. 1982), affd, 705 F.2d 584 
(2d Cir. 1983)(disparate impact case):

Defendants argue that statistics alone should not be sufficient to establish a 
prima facie case of disparate impact here in the absence of proof to rebut 
another available inference from the statistics, namely, that none of the 
women who took the test were strong enough to do the work required by the 
job. This argument seeks to re-define the issues and reverse the burden of 
proof established by the Supreme Court for Title VII cases [citations 
omitted], by requiring plaintiff to show that she is an exception to the general 
characteristics of her sex and to prove that individual members of her sex are 
worthy of employment. Title VII imposes neither requirement on the 
plaintiff.

9The principle is equally applicable here, since the Title VI regulations likewise 
guarantee individuals equal opportunities. In addition to the regulatory provisions cited 
by the panel, slip op. at 2858-59 n.13, we note that 34 C.F.R. § 100.3(b)(1) provides that 
"A recipient. . .  may not, directly or through contractual or other arrangements, on ground 
of race, color, or national origin: . . . .  (iii) Subject an individual to segregation or separate 
treatment in any matter related to his receipt of any service, financial aid, or other benefit 
under the program."

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Circuit, applying Teal, has not -  as the panel opinion does -  imposed a requirement that 

plaintiffs disprove the "same-result hypothetical" in order to state a prima facie case under 

Title VII. In Kilgo v. Bowman Transportation, Inc., 789 F.2d 859, 868-73 (11th Cir. 1986), 

for example, there was no suggestion that the plaintiffs had to disprove the possibility that 

women would not have applied or been hired in greater numbers in the absence of the 

company’s challenged prior experience requirement. See also Craig v. Alabama State 

University, 804 F.2d 682, 688 (11th Cir. 1986)(alleged contractual justification for hiring 

preference would be weighed in considering "business necessity" defense and did not negate 

disparate impact). The panel’s approach on this issue is not only unprecedented; it 

effectively forecloses all Title VI impact claims and warrants review by the full Court.

B. Appellate review of "implicit" findings

The panel opinion goes to great lengths to discern some justification for upholding 

the ruling below. In more than half a dozen separate instances, it glides over the lack of 

necessary subsidiaiy factual findings by the District Court by itself making the findings, 

which it then concludes are not "clearly erroneous." The opinion does not do so overtly; 

rather, it repeatedly discovers that the missing links in the chain of reasoning are "implicit" 

in other findings made by the District Court -  including the most generalized, summary 

conclusion that plaintiffs failed to prove their case. This approach conflicts with proper 

standards of appellate review and merits the attention of the entire Court.

For example, we refer again to the panel’s determination with respect to the 

Training School zone, slip op. at 2869-70. A portion of the discussion is excerpted supra 

at p. 5. Here, we wish to focus attention upon different language, in which the panel 

explains how it came to "believe that the district court implicitly found that the Board’s 

[action] .. . had no significant effect on the school’s racial identifiability" (emphasis added):

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[TJhe district court did find that assigning the children from the former Idalia 
zone to the Training School for grades 7-12 would have significantly 
improved integration at the Training School. However, in light of its 
determinations that many white children failed to attend the Training School 
and that the Board’s attendance zone decision had not produced a disparate 
impact on black students, it is clear that the district court meant, not that 
white students from Idalia would have attended the Training School if 
assigned there, but only that if they had attended, integration would have 
improved. In fact, the district court’s explicit determinations indicate that it 
implicitly found that plaintiffs did not and could not prove that white Idalia- 
zone students, if zoned for the Training School for grades 7-12, actually 
would have attended. In other words, we believe that the district court 
implicitly found that the Board’s failing to send the Idaliza-zone children to 
the Training School had no significant effect on the school’s racial 
identifiability . . . .

(Slip op. at 2869 [emphasis in original].) The panel’s critical determination on the zone 

gerrymandering issue thus would seem to rest on a finding that the panel implies from two 

facts it concludes were found by the District Court: (1) that white children residing in the 

existing attendance zone for the Training School had zone-jumped, and (2) that the Board’s 

zoning decision had no disparate impact. A careful reading of the panel opinion indicates, 

however, that the second statement is itself inferred by the panel from the District Court’s 

conclusory determination that "‘plaintiffs have failed to establish by a preponderance of the 

evidence that any of the challenged decisions and practices violated the regulations or 

otherwise had a disparate impact on blacks’" because, the panel recognized, "the district 

court never specifically decided that plaintiffs had failed to prove disparate impact with 

respect to the attendance zone decision." Slip op. at 2867.

Since the past behavior of the smaller number of white pupils residing within the 

Training School zone could hardly be a conclusive indication of what might happen if the 

zone were enlarged to add more white students, see slip op. at 2881 n.38, the panel’s entire 

holding on this issue turns out to rest upon implication and inference from the District 

Court’s conclusory statement of its ultimate holding. This is utterly inconsistent with

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appropriate principles of appellate review. "Findings must be sufficient to allow a reviewing 

court to determine rather than speculate that the law has been correctly applied." 

Municipal Leasing Corporation v. Fulton County, 835 F.2d 786, 791 (11th Cir. 1988). The 

reviewing court "cannot blindly assume that [necessary subsidiary findings] are subsumed 

under the ultimate finding that [the defendant] acted properly — from start to finish — in 

[its operations]," id. at 788. This requires that the "district court [must] make . . . findings 

of fact or conclusions of law with respect to critical and material issues in the case," Ionmar 

Compania Naviera, S.A. v. Olin Corporation, 666 F.2d 897, 903 (5th Cir. 1982), and it is 

particularly important in discrimination cases requiring close analysis of complex factual 

patterns, see Cross v. Baxter, 604 F.2d 875, 879 (5th Cir. 1979)(vote dilution claim).10

This is hardly an isolated example from the panel opinion,11 but it indicates the

wCross cites, inter alia, Corder v. Kirksey, 585 F.2d 708, 713 (5th Cir. 1978)("Given the 
intensely factual nature of voting dilution cases, we, as an appellate court, can but speculate 
whether the law was properly applied if we lack sufficiently explicative findings") and David 
v. Garrison, 553 F.2d 923, 929 (5th Cir. 1977)("[C]onclusory findings as to each of the 
Zimmer criteria are no more helpful than an overall conclusory finding of dilution. The 
factual predicates for such conclusions must be clearly stated by the trial court"). The 
instant case is equally fact intensive. See, e.g., slip op. at 2852 ("To evaluate the challenged 
actions, it is important to understand the history of each school").

"The panel infers or assumes subsidiary factual findings or conclusions at 2863, 2864, 
2867, 2869, 2870, 2873, 2874, 2876 and 2878. In the latter instance, it states:

According to plaintiffs, the manner in which the Board reassigned 
students upon the closing of the all-black Hannah Mallory Elementary School 
-  i.e., the Board’s sending most Hannah Mallory students to the Training 
School via a non-contiguous attendance zone -  violated both the equal 
protection clause and the Title VI regulations. The district court did not 
make any explicit determinations on either claim. However, it did decide 
that plaintiffs had failed to establish that any of the challenged Board 
decisions were "tainted by a racially discriminatory animus," R2-93-21-22, and 
that plaintiffs had failed to establish that any of the challenged decisions had 
a disparate impact on blacks, see R2-93-22. Thus, it obviously decided that 
the challenged student reassignment plan violated neither the equal 
protection clause nor the Title VI regulations.

(continued...)

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extent to which the panel departed from the proper manner of appellate review, which is 

particularly significant since this matter involves constitutional rights. In banc review is 

therefore merited.

C. Inter-district transfers

In the course of rejecting plaintiffs’ claims regarding zone-jumping, the panel 

opinion departs from firmly established law in this Circuit and relieves school districts 

remaining under desegregation decrees of their obligation to attempt to stop segregative 

inter-district transfers.* 12 Review by the full Court of this determination is essential.

“ (...continued)
The District Court’s ruling as to Hannah Mallory hardly provides "sufficient detail to 
indicate the factual basis for its ultimate conclusions of law," Ionmar Compania Naviera, 666 
F.2d at 903, and "[i]t is not the function of the Court of Appeals to infer material facts. 
Hodgson v. Okada, 472 F.2d 965 (10th Cir. 1973)." Transport Equipment Company v. 
Guaranty State Bank, 518 F.2d 377, 383 (10th Cir. 1975). Although the panel concluded 
that plaintiffs’ complaints about the closing of Hannah Mallory were moot, slip op. at 2879, 
it did "conside[r] the Board’s reassignment actions as part of the overall evidence of the 
Board’s intent to discriminate in making other challenged decisions," id., so the point is 
more than an academic one. For example, it remains relevant on the zone jumping issue, 
see supra note 5.

12As the panel notes (slip op. at 2858-59 n.12), 34 C.F.R. § 100.3(b)(2) bars recipients 
of federal financial assistance from utilizing "methods of administration which have the 
effect of subjecting individuals to discrimination." Here it is undisputed that the School 
Board made substantial efforts to prevent the loss of white students from majority-white 
school attendance zones that would have resulted from proposed annexations of territory 
by other districts — but made no effort to enforce its own policy against zone-jumping in 
the case of white students leaving the majority-black Training School zone, and that the 
zone-jumping had a substantial impact on the Training School’s white enrollment.

Since an effect standard applies to the actions of a school system subject to a 
desegregation decree as it does on a Title VI regulations claim, see supra note 4, plaintiffs 
properly relied upon this Circuit’s school desegregation precedents to support their Title 
VI regulations claim. In particular, the inter-district transfer limitations imposed by 
Singleton and its progeny delineate the obligation imposed by the regulations in this area, 
cf Adams v. Richardson, 356 F. Supp. 92, 96-97 (D.D.C.), tiff'd, 480 F.2d 1159 (D.C. Cir. 
1973)(HEW must incorporate desegregation standards announced by Supreme Court in its 
enforcement of Title VI). Whether or not the Talladega County school system had a

(continued...)

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By the time desegregation in the former Fifth Circuit began in earnest following the 

"free choice" era, the potential for inter-district transfers, and pupil attendance across 

school district lines, to undermine the effectiveness of desegregation decrees was apparent. 

In Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211, 1218-19 (5th Cir. 

1969), rev’d in part on other grounds sub nom. Carter v. West Feliciana Parish School Board, 

397 U.S. 232 (1970), the Fifth Circuit required that such transfers be limited to those which 

would not impede desegregation:

ATTENDANCE OUTSIDE SYSTEM OF RESIDENCE

If the school district grants transfers to students living in the district 
for their attendance at public schools outside the district, or if it permits 
transfers into the district of students who live outside the district, it shall do 
so on a non-discriminatory basis, except that it shall not consent to transfers 
where the cumulative effect will reduce desegregation in either district or 
reenforce [sic] the dual school system.

Since that time, the Singleton transfer provision has become an integral feature of 

desegregation decrees, including in Alabama cases. Indeed, subsequent landmark decisions 

of the Fifth Circuit and of this Court on the subject both originated in Alabama. See Lee 

v. Eufaula City Board o f Education, 573 F.2d 229 (5th Cir. 1978); United States v. Lowndes 

County Board o f Education, 878 F.2d 1301 (11th Cir. 1989).

In Lowndes County, this Court held that the principles of Singleton "obligate] the 

school district to monitor the effect of [out-of-district] transfers, both on its own 

desegregation efforts and on the desegregation process of the school district from which 12

12(...continued)
contractual obligation to continue to comply with the provisions of its court order (compare 
slip op. at 2870-74 with id. at 2880), therefore, the panel’s rejection of plaintiffs’ Title VI 
regulatory claim will be urged by school boards under explicit Singleton decrees in active 
desegregation suits as eliminating their duty to prevent segregative transfers.

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it receives, or to which it sends, its students," id. at 1304 (emphasis added).13 The duty of 

Alabama school systems subject to Singleton requirements to limit such attendance if it 

would impede desegregation or tend to identify "sending" or "receiving" schools by race has 

until now been well understood, by both litigants and courts.14

Contrary to this understanding, in that part of its opinion which interprets school 

boards’ Singleton obligations, the panel releases school systems in Alabama from any 

obligation even to attempt to stop cross-district transfers by their students that "increasfe] 

the duality of [their] system" unless they are sure that their efforts will be successful, slip 

op. at 2872-73.15 As a legal matter, this interpretation runs counter to the letter of

13This is particularly significant because in Alabama, students are not required to attend 
schools operated by the districts within whose geographical boundaries they reside. Phenix 
City Board o f Education v. Teague, 515 So. 2d 971 (Ala. Civ. App. 1987). Thus, unlike 
states which mandate district-only attendance, formal inter-district transfer programs or 
agreements among school districts which could be deemed formal "consent," are 
unnecessary, under Alabama law, to "attendance outside system of residence," in the 
language of Singleton.

14Consistent with the language previously quoted from Lowndes County, for example, 
on June 14, 1993 a Consent Order including the following provision was approved by an 
Alabama federal court:

3. In view of the fact that white students who are residents of the 
Bullock County School District are known to be attending public schools in 
surrounding school districts, Defendant Bullock has an obligation to notify 
officials of these surrounding school districts that their enrollment of white 
Bullock County residents negatively impacts desegregation in the Bullock 
County schools; to request that such impermissible interdistrict transfers not 
continue to be enrolled; and to initiate appropriate action thereon before this 
Court, should such become necessary. Consistent therewith, Defendant 
Bullock shall affirmatively monitor the impact of interdistrict student 
transfers on its schools.

Harris and United States v. Bullock County Board o f Education, Civ. No. 2073-N (M.D. Ala. 
June 14, 1993), at 8-9.

l5Compare, e.g., Mills v. Polk County Board of Public Instruction, 993 F.2d 1485, 1494 & 
n.33 (11th Cir. 1993)(in locating new schools, "board is obligated to ‘seek means to 
eradicate the vestiges of the dual system,’" citing United States v. Board o f Public Instruction, 
395 F.2d 66, 68 (5th Cir. 1968)).

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Singleton, Eufaula and Lowndes,16 is wholly at odds with their purpose, will affect scores 

of pending desegregation cases, and should be reconsidered by the full Court.

In addition, as a factual matter, the panel’s determination that the Talladega County 

Board was powerless to do anything about zone-jumping by white students from the 

Training School zone into city schools rests, ultimately, upon the panel’s understanding that 

Talladega City is no longer subject to a Singleton obligation because it has been found 

unitary and the case against it dismissed. See slip op. at 2877 n.32. That dismissal, 

however, was reversed by this Court in Lee v. Etowah County Board o f Education, 963 F.2d 

1416 (11th Cir. 1992). For this reason, the factual linchpin of the panel’s holding under 

both the Fourteenth Amendment and the Title VI regulations with respect to zone-jumping 

is simply incorrect, its judgment cannot stand, and rehearing or rehearing in banc should 

be granted.

Conclusion

For the foregoing reasons, rehearing, or rehearing in banc should be granted.

Respectfully submitted,

ELAINE R. JONES 
Director-Counsel

CLEOPHUS THOMAS, JR.
P.O. Box 2303 THEODORE M. SHAW
Anniston, AL 36202 NORMAN J. CHACHKIN
(205) 236-1240 NAACP Legal Defense &

Educational Fund, Inc.
99 Hudson Street, 16th fl. 
New York, New York 10013

(listing of counsel continued on next page)

6The panel would justify its holding by giving talismanic significance to the phrase 
"consents to" in Singleton. We submit, however, that in light of history and context, the 
phrase means no more than "allows to occur."

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JANELL M. BYRD 
NAACP Legal Defense & 

Educational Fund, Inc. 
1275 K Street, N.W., Suite 301 
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Appellants

Certificate of Service

I hereby certify that on this 1st day of September, 1993, I served two copies of the

foregoing Petition for Rehearing and Suggestion for Rehearing In Banc upon counsel for

the other parties to this action, by depositing the same in the United States mail, first-class

postage prepaid, addressed as follows:

George C. Douglas, Jr., Esq. Stan Thornton, Esq.
Gaines, Gaines & Gaines, P.C. Wooton, Thronton, Carpenter,
127 North Street O’Brien & Lazenby
Talladega, Alabama 35106 P. O. Drawer 1777

Talladega, Alabama 35160

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