Sylvester v. United States Postal Service Reply Brief for Plaintiffs-Appellants

    No. < ? {

In The

Supreme Court of the United States
October Term, 1991

Talladega County Board of Education, Its 
Individual Members Dan Limbaugh, Gay Langley, 

Larry Morris, Beulah Garrett, Cindy Allred, 
And Its Superintendent Dr. Lance Grissett,

Petitioners,
v.

Quintin Elston, Et Al., On Behalf of Themselves 
And All Other Similarly Situated Black Children 

In Talladega County, Alabama,
Respondents.

Petition For Writ Of Certiorari To The 
United States Court Of Appeals 

For The Eleventh Circuit
---------------- ♦-----------------

PETITION FOR WRIT OF CERTIORARI 
---------------♦---------------

George C. Douci.as, Jr.
Counsel of Record 

For Petitioners
G aines , G aines, & G aines , P.C. 
127 North Street 
Talladega, Alabama 35160 
(205) 362-2386

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COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 

OR CALL COLLECT (402 ) 342-2831



i

QUESTIONS PRESENTED

1. In this school desegregation case, did the Court 
of Appeals depart from the "clearly erroneous" rule of 
Fed.R.Civ.P. 52(a) by vacating the trial court's findings of 
fact without holding they were clearly erroneous?

2. Did the Court of Appeals depart from the "harm­
less error" mandates of Fed.R.Civ.P. 61 and 28 USC 2111 
by vacating the trial court's judgment for abuse of discre­
tion, without explaining why the stated error was not 
harmless?

3. Does the Court of Appeals' judgment conflict 
with Anderson v. Bessemer City, 470 U.S. 564 (1985) and 
similar recent opinions of this Court, which carefully 
limit the power of a federal appeals court to disturb a 
trial court's findings of fact in a non-jury case?

4. Did the Court of Appeals depart from its own 
precedent for reviewing abuse of discretion issues?

5. Should the trial court's judgment be reinstated by 
this Court, since it rests on detailed findings of fact made 
after a three day non-jury trial, which were not found to 
be clearly erroneous by the Court of Appeals?



11

PARTIES TO THE PROCEEDING

All of the petitioners are listed in the caption.

In addition to the respondents listed in the caption, 
the following persons were plaintiffs in the trial court 
and appellants in the Court of Appeals, individually and 
on behalf of all other black children alleged to be sim­
ilarly situated:

Darius, Kierston and Gwynethe BALL; Delicia, 
Loretta, Ronnie and Lecorey BEAVERS; Roslyn and John­
nie COCHRAN; Tiffanie, Augustus and Cardella 
ELSTON; Jerrok and Kate EVANS; Daniel, Althea, Vernon 
and Estella GARRETT; Kereyell and Delia GLOVER; Step­
hanie and Connally HILL; Ernest, Rayven, Rollen & 
Helen JACKSON; Carla, Dorothy, Bertha, Willie and Paul 
JONES; Danielle and Donald JONES; Datrea, Quinton and 
Willie MORRIS; Jeffrey and Lela MORRIS; Quinedell and 
Ouinell MOSLEY; Tiffani, Kedrick, Terry, Donyae and 
Gwendolyn SWAIN; Cora, Louise, William and Veronica 
TUCK; Jacques TURNER; Wendell and John WARE; Mon- 
tina, Richard and Angie WILLIAMS.

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED..............................................  i

PARTIES TO THE PROCEEDING.................................  ii

PETITION FOR WRIT OF CERTIORARI.....................  1

OPINIONS BELOW............................................................  1

JURISDICTION OF THIS COURT.................................  2

STATUTES AND RULES INVOLVED...........................  2

STATEMENT OF THE CASE........................................... 3

BASIS FOR FEDERAL JURISDICTION.......................  5

REASONS TO GRANT THE WRIT...............................  5

APPENDIX.............................................................................A-l

Opinion Of The Court Of Appeals (April 30, 1991) . . .  A-l

Findings Of Fact, Conclusions Of Law, And Judg­
ment Of The District Court (September 19, 1989) .. . A-4

The Court Of Appeals' Order Denying Petition
For Rehearing (June 7, 1991)......................................A-27

Excerpts From Plaintiff's Brief On Abuse Of Dis­
cretion Issues (May 4, 1990)......................................A-30



IV

TABLE OF AUTHORITIES
Page

O ases:

Anderson v. Bessemer City, 470 U.S. 564 (1985)............. 7

Bank of Nova Scotia v. U.S., 487 U.S. 250 (1988).........  10

Cooter & Gell v. Hartmarx Corn., 496 U.S. ___, 110
L.Ed.2d 359 (1990)........................................................7> 12

McDonough Power Equipment v. Greenwood, 464
U.S. 548 (1984)................................................................... 8

Pullman-Standard v. Swint, 456 U.S. 273 (1982)............. 7

United States v. Gahay, 923 F.2d 1536 (11th Cir.
1991)........................................................................................

United States v. Lane, 474 U.S. 438 (1986)....................... 8

'Mited States v. Loyd, 743 F.2d 1555 (11th Cir. 1984) . . . .  11

United States v. Magdaniel-Mora, 746 F.2d 715 (11th 
Cir. 1984)........................................................................... .....

F ederal R ules O f C ivil P ro ced ure :

Rule 52<a) ............................................................. 2, 6, 8, 10, 11

Rule 61........................................................................... 2 , 8, 10

S tatutes :

28 USC 2111 2, 9, 10

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

The Talladega County Board of Education, its indi­
vidual members and superintendent respectfully petition 
for a Writ of Certiorari from this Court to review the 
judgment of the United States Court of Appeals for the 
Eleventh Circuit, which vacated a final judgment of the 
United States District Court for the Northern District of 
Alabama in favor of the defendants in this school deseg­
regation and civil rights case.

This case has national significance. The issue is 
whether there are any circumstances under which a court 
of appeals may avoid the "clearly erroneous" and "harm­
less error standards of review by reversing on other 
grounds, without citing authority for its action, and with­
out explaining why the perceived error was not harmless 
or why it resulted in clearly erroneous findings of fact.

--------------- ♦------------ -—

OPINIONS AND ORDERS BELOW

The April 30, 1991 opinion of the Court of Appeals 
was designated by that Court as not for publication. It is 
reproduced in the Appendix at page A-l, and the order 
denying rehearing is reproduced at page A-27.

The District Court's findings of fact, conclusions of 
law, and judgment are reproduced in the Appendix 
beginning at page A-4.

1



2

JURISDICTION OF THIS COURT

The Court of Appeals issued its opinion vacating the 
District Court's judgment on April 30, 1991, and denied 
Petitioners' timely application for rehearing on June 7, 
1991.

This Court has jurisdiction to review the judgment by 
certiorari under 28 USC Section 1254(1).

---------------4---------------

STATUTES AND RULES INVOLVED

1. Fed.R.Civ.P. 52(a) provides as follows:

"Findings of fact, whether based on oral or doc­
umentary evidence, shall not be set aside unless 
clearly erroneous and due regard shall be given 

the opportunity of the trial court to judge of 
the credibility of the witnesses."

2. 28 USC 2111 provides:

"On the hearing of any appeal or writ of cer­
tiorari in any case, the court shall give judgment 
after an examination of the record without 
regard to errors or defects which do not affect 
the substantial rights of the parties."

3. Fed.R.Civ.P. 61 provides:

" . . .  no error or defect in any ruling or order or 
in anything done or omitted by the court or by 
any of the parties is ground for granting a new 
trial or for setting aside a verdict or for vacating, 
modifying, or otherwise disturbing a judgment 
or order, unless refusal to take such action 
appears to the court inconsistent with substan­
tial justice. The court at every stage of the pro­
ceeding must disregard any error or defect in

3

the proceeding which does not affect the sub­
stantial rights of the parties."

---------------- ♦-----------------

STATEMENT OF THE CASE

Like virtually every other school system in Alabama, 
the Talladega County Schools were made a party to the 
original statewide desegregation suit styled Lee v. Macon 
County Board Of Education, et a l,  267 F.Supp. 458 (MD Ala. 
1967). The Talladega County Board Of Education ("The 
Board") was dismissed from that suit on March 13, 1985 
by consent of the plaintiffs and the U.S. Dept, of Justice. 
The stipulation for dismissal acknowledged that the 
Board had achieved a unitary school system.

In 1987 the Board decided to build a new elementary 
school which would combine the elementary grades at 
three existing schools in the northern part of Talladega 
County. The plaintiffs opposed the new school location, 
and filed a motion to reopen the Lee v. Macon case as to 
Talladega County in July 1988. When this motion was 
denied, plaintiffs filed this suit claiming that (a) the loca­
tion of the new elementary school was racially motivated,
(b) the Board was allowing "zone jumping" (i.e. allowing 
students to attend public school out of their assigned 
attendance zones), and (c) that the Board had not imple­
mented affirmative action plans regarding faculty and 
staff in its schools. The .plaintiffs also made First Amend­
ment and state claims based on the Board's alleged fail­
ure to provide them with copies of certain documents and 
allow them to make recordings of Board meetings.



4

Discovery was conducted in early .1989, and the Dis­
trict Court conducted a three day non-jury trial beginning 
on August 21, 1989. The trial court heard testimony from 
18 witnesses, with numerous exhibits admitted into evi­
dence.

On September 19, 1989 the District Court filed 
detailed findings of fact and entered judgment for the 
defendants. (Appendix p. A-4). The District Court found 
that:

(a) The plaintiffs failed to prove any of their claims, 
and the planned new school would provide a better edu­
cation for all children attending it; (A-16, 17)

(b) That the new school's location was not racially 
motivated, had no disparate impact on blacks, and was 
" . . . consistent with the operation of a unitary, racially 
nun-discriminatory public school system"; (A-17)

(c) That the Board neither allowed nor condoned 
"zone jumping"; (A-18) and

(d) That "even though defendants had no burden of 
proof, they have articulated and established by clear and 
convincing evidence substantial, legitimate, non-discrimi- 
natory reasons for the decisions and practices in ques­
tion". (A-24).

In a one page order with no citation of authority, the 
Court of Appeals vacated the District Court's judgment 
on grounds that the trial court had abused its discretion. 
The Eleventh Circuit stated that the District Court should 
have granted the plaintiffs' motion for pro hac vice admis­
sion of two other attorneys shortly after the suit was

5

filed, and should have allowed the plaintiffs' untimely 
motion to add the Talladega City school system as an 
additional defendant.

The Eleventh Circuit's opinion did not state that the 
District Court's findings of fact were clearly erroneous, 
and gave no explanation as to why the perceived abuses 
of discretion were not harmless error, or why they had 
led to clearly erroneous findings of fact or an otherwise 
unjust result. (Appendix p. A-3).

------------------------------------ —  -----------------------------------

BASIS FOR FEDERAL JURISDICTION

The district court had jurisdiction over this case pur­
suant to 28 USC Sections 1331 and 1343(4).

-----------------♦------ -

REASONS TO GRANT THE WRIT

In this case, a Court of Appeals has vacated findings 
of fact made by a District Court after a non-jury trial, 
without any holding that the facts found were clearly 
erroneous or that the perceived errors were not harmless. 
Like any other error in the trial court, reversal for abuse 
of discretion should be subject to the clearly erroneous 
and harmless error standards of appellate review. Unless 
the District Court s factual finding of no discrimination was 
clearly erroneous , then the abuse of discretion perceived by 

the Court of Appeals was necessarily "harmless error".

During the trial, the district judge heard testimony 
from 18 witnesses, including one expert for the plaintiff, 
and received numerous exhibits from both parties. One of



6

the main issues was the Board's elementary school plan; 
during the trial the plaintiffs' expert admitted on cross- 
examination that this plan was " . . .  a good plan . . .  a 
pretty good plan".

After the trial, the district court entered detailed 
findings of fact concerning the plaintiffs' claims, and 
summarized its findings as follows:

" . . .  plaintiffs have failed to establish by a 
preponderance of the evidence that any of the 
challenged decisions and practices were tainted 
by a racially discriminatory animus. . . .

. . . Even though defendants had no burden of 
proof, they have articulated and established by 
clear and convincing evidence substantial, legit­
imate, nondiscriminatory reasons for the deci­
sions and practices in -question. . . . "

(Appendix p. A-24).

The Court of Appeals vacated the district court's 
judgment on grounds that it had abused its discretion, 
but without any discussion or citation of authority on 
why its reversal was not subject to the clearly erroneous 
or harmless error standards. The Court of Appeals' order 
did not state that any of the district court's findings were 
clearly erroneous, nor did it explain why the perceived 
errors were not harmless.

Fed.R.Civ.P. 52(a) severely limits the power of an 
appellate court to review or disturb facts found by a 
District Court sitting as the trier of fact. An appellate 
court must accept a District Court's finding of "ultimate 
fact" on the issue of discriminatory intent, and may not 

finding aside unless it is found to be clearly

7

erroneous. Pullman-Standard v. Swint, 456 U S 273 
285-287 (1982).

This Court's recent opinion in Anderson v. Bessemer 
City, 470 U.S. 564 (1985) emphasized that:

Rule 52(a) does not make exceptions or purport 
to exclude certain categories of factual findings 
from the obligation of a court of appeals to 
accept a district court's findings unless clearly 
erroneous." 7

S  H’n at 574/ citinS Pull™™-Standard v. Swint,456 U.S. at 287.

Still more recently, in Cooler & Cell v. Hartmarx Corp, 
496 U.S. ---- , 110 L.Ed.2d 359 (1990), this Court stated:

In practice, the 'clearly erroneous' standard 
requires the appellate court to uphold any dis­
trict court determination that falls within a 
broad range of permissible conclusions. [Citing 
Anderson v. Bessemer City, supra],

. . .  If the district court's account of the evidence 
is plausible in light of the record viewed in its 
entirety, the court of appeals may not reverse it 
even though convinced that had it been sitting 
as the trier of fact, it would have weighed the 
evidence differently. Where there are two per­
missible views of the evidence, the factfinder's 
choice between them cannot be clearly erro­
neous; [Citing Inwood Laboratories, Inc. v Ives 
Laboratories, Inc., 456 U.S. 844 (1982)].

. . . Whe n an appellate court reviews a district 
court s factual findings, the abuse of discretion and 
clearly erroneous standards are indistinguishable■ A 
court of appeals would be justified in concluding 
that a district court had abused its discretion in 
making a factual finding only if the finding were 
clearly erroneous." 6



8

496 U.S. a t___,110 L.Ed.2d at 378-379 (Emphasis
added).

It might be argued that the Eleventh Circuit did not 
actually review or set aside the trial court's findings of 
fact in this case, but merely vacated its judgment and 
remanded for further proceedings. Such an argument 
would ignore the obvious point that the trial court's 
judgment was clearly based on the ultimate finding of 
fact that no defendant was guilty of any racially discrimi­
natory motives or actions as charged in the complaint. 
The Eleventh Circuit necessarily had to vacate the District 
Court's findings of fact to remand for further proceed­
ings, because if those factual findings were accepted then 
the defendants were entitled to judgment in their favor.

If the Court of Appeals had found any of the District 
Court's factual findings to be clearly erroneous, then it 
presumably would have said so and explained why. The 
Court of Appeals' failure to discuss a clearly erroneous 
analysis suggests that application of this standard would 
not have allowed reversal.

It might also be argued that reversal was proper 
because the perceived abuse of discretion affected the 
facts which the plaintiffs could present or the actual trial 
itself. This argument is met head-on by the harmless error 
rule of Fed.R.Civ.P. 61:

"No error in either the admission or the exclu­
sion of evidence and no error or defect in any 
ruling or order or in anything done or omitted 
by the court or by any of the parties is ground 
for granting a new trial or for setting aside a 
verdict or for vacating, modifying, or otherwise 
disturbing a judgment or order, unless refusal to

9

take such action appears to the court inconsis­
tent with substantial justice. The court at every 
stage of the proceedings must disregard any 
error or defect in the proceeding which does not 
affect the substantial rights of the parties".

In the same way, 28 USC 2111 requires an appellate 
court to " . . . give judgment after an examination of the 
record without regard to errors or defects which do not 
affect the substantial rights of the parties."

The commands of Rule 61 and 28 USC 2111 are as 
clear as those of Rule 52, and perhaps more so. As this 
Court emphasized in McDonough Power Equipment v. 
Greenwood, 464 U.S. 548 (1984)

"The harmless error rules adopted by this Court 
and Congress embody the principle that courts 
should exercise judgment in preference to the 
automatic reversal for "error" and ignore errors 
that do not affect the essential fairness of the 
trial . . . While in a narrow sense Rule 61 applies 
only to the district courts, . . .  it is well settled 
that the appellate courts should act in accor­
dance with the salutary policy embodied in Rule 
61. [citations omitted]. Congress has further 
reinforced the application of Rule 61 by enacting 
the harmless-error statute, 28 USC 2111, which 
applies directly to appellate courts and which 
incorporates the same principle as that found in 
Rule 61. [Citing Tipton v. Socony Mobil Oil Co.,
375 U.S. 34, 37 (1963) and U.S. v. Borden Co., 347 
U.S. 514, 516 (1954)]."
464 U.S. at 553-554.

As this Court recently stated in United States v. Lane, 
474 U.S. 438 (1986):

"Since Chapman [v. California, 386 U.S. 18 (1967)], 
we have consistently made it clear that it is the



10

duty of a reviewing court to consider the trial 
record as a whole and to ignore errors that are 
harmless, including most constitutional viola­
tions."

474 U.S. at 445.

If denial of the plaintiffs' motions for additional 
attorneys and to add a defendant in some way affected 
the essential fairness of the trial, the Eleventh Circuit 
would have undoubtedly offered some explanation or 
example to support reversal and illustrate why the error 
was not harmless. The lack of such explanation, as with 
the lack of a clearly erroneous analysis, suggests that the 
Court of Appeals simply wished to reverse but had no 
firm ground on which to do so.

The argument that a. court of appeals has inherent 
supervisory power to correct procedural and trial errors 
by a district court without regard to the harmless error 
rule was rejected by this Court in Bank of Nova Scotia v. 
U.S., 487 U.S. 250 (1988). This was a criminal case involv­
ing Fed.R.Crim.P. 52(a), which contains the same harm­
less error rule as Fed.R.Civ.P. 61 and 28 USC 2111. This 
Court stated there:

" . . .  Rule 52(a) provides that 'any error, defect, 
irregularity or variance which does not affect 
substantial rights must be disregarded.'

. . . federal courts have no more discretion to 
disregard the Rule's mandate than they do to 
disregard constitutional or statutory provisions.
The balance struck by the Rule between societal 
cost and the rights of the accused may not casu­
ally be overlooked because a Court has elected 
to analyze the question under the supervisory 
power."

11

487 U.S. at 255, citing U.S. v. Payner, 447 U.S.
727, 736 (1980).

This Court's opinions are very clear that no district 
court judgment may be reversed for any reason, whether 
abuse of discretion or otherwise, without a showing that 
the error affected the essential fairness of the trial, and (if 
a non-jury case), resulted in clearly erroneous findings of 
fact. Rule 52(a) requires appellate courts to give the same 
deference to a district court's findings when it sits as the 
trier of fact as the Seventh Amendment requires in jury 
cases.

Finally, it might be argued that the Court of Appeals 
implicitly considered the clearly erroneous and harmless 
error rules even though its opinion did not expressly say 
so. This would overlook the fundamental obligation of a 
reviewing court to explain both the standard of review it 
applies and the basis for its reasoning. Without such 
explanations, this Court would have no way of assuring 
that the courts of appeal were uniformly and consistently 
adhering to the proper standards of review.

Besides departing from the recent opinions of this 
Court, the Eleventh Circuit's opinion in this case 
departed from its own precedent for reviewing abuse of 
discretion issues. In numerous recent decisions, the Elev­
enth Circuit has stated that " . . .  a showing of prejudice is 
necessary for the Court to find an abuse of discretion". 
U.S. v. Loyd, 743 F.2d 1555, 1564 (11th Cir. 1984). Likewise 
in U.S. v. Magdaniel-Mora, 746 F.2d 715, 718 (11th Cir. 
1984), Judge Vance wrote that in order to establish an 
abuse of discretion the defendant must show that he was 
" . . . unable to receive a fair trial and . . . suffered 
compelling prejudice against which the trial court could



12

offer no protection". And in U.S. v. Qabay, 923 F.2d 1536 
(11th Cir. 1991) the Eleventh Circuit stated that a trial 
court had " . . .  broad discretion in handling a trial" and 
that an appellate court . . . will not intervene absent a 
clear showing of abuse".

Although the plaintiffs argued abuse of discretion in 
their brief, they made no attempt to show how they had 
been denied a fair trial as a result of the alleged abuse of 
discretion, or how the outcome of the case would proba­
bly have been different, or how the ostensible abuse led 
to factual findings that were clearly erroneous. (See p. 
53-55, "Brief for Appellants", dated May 4, 1990, Appen­
dix p. A-30). The Eleventh Circuit's opinion contained no 
discussion or explanation of how the plaintiffs had car­
ried their burden of showing a clear abuse of discretion 
or why they had suffered'substantial prejudice as a result 
of the alleged errors.

The trial court's judgment in this case was supported 
by detailed findings of fact, entered after hearing testi­
mony from eighteen witnesses and considering numerous 
exhibits. The plaintiffs' own expert admitted that the 
challenged elementary school plan was "good . . . pretty 
good". The District Court's judgment clearly falls within 
the "broad range of permissible conclusions" referred to 
by this Court in Cooter & Gell v. Hartmarx, and is more 
than plausible in light of the record as a whole. Under 
these circumstances, this Court should reverse the judg­
ment of the Court of Appeals and reinstate the judgment 
of the District Court.

♦

13

CONCLUSION

The Court of Appeals effectively vacated the District 
Court's findings of fact while ignoring the clearly erro­
neous and harmless error standards of review.

This case presents the Court with the opportunity to 
emphasize once more that the power of federal appeals 
courts to disturb the findings of a district court is very 
limited, and may not be exercised for any reason without 
application of the clearly erroneous and harmless error 
rules.

The judgment of the Court of Appeals should be 
reversed, and the District Court's judgment reinstated.

Respectfully submitted,

G eorge  C. D ouglas , Jr.
Counsel Of Record For Petitioners
G aines , G aines & G aines, RC.
127 North Street
Talladega, Alabama 35160
(205) 362-2386



A-l

APPENDIX 1
DO NOT PUBLISH

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 89-7777

D. C. Docket No. CV-88-H-2052-E

QUINTIN ELSTON; RHONDA ELSTON; and 
TIFFANIE ELSTON, all minor children, by 
and through their parents and guardians,
AUGUSTUS ELSTON, and CARDELLA ELSTON; 
on behalf of themselves and all other similarly 
situated black children and parents or 
guardians of black children in 
Talladega County in the 
State of Alabama, etc., et al.,

Plain tiffs-Appellants,
versus

TALLADEGA COUNTY BOARD OF 
EDUCATION; LANCE GRISSETT; 
DAN LIMBAUGH; M. R. WATSON; 
GAY LANGLEY; and LARRY MORRIS 
and BEULAH GARRETT;

Defendants-Appellees.
JOSEPH POMEROY,

Defendant.



A-2

89-7917

TORRANCE BECK, a/k/a 
Albert Beck, Jr.,

Plaintiff,
QUINTIN ELSTON, RHONDA ELSTON, and 
TIFFANIE ELSTON, all minor children, 
by and through their parents and 
guardians, AUGUSTUS ELSTON and 
CARDELLA ELSTON; on behalf of 
themselves and all other similarly 
situated black children in Talladega 
p nunty in the State of Alabama,

Plain tiffs-Appellants
versus

TALLADEGA COUNTY BOARD OF EDUCATION' 
LANCE GRISSETT; DAN LIMBAUGH; M. R.
WATSON; GAY LANGLEY; LARRY MORRIS; 
and BEULAH GARRETT,

Defendants-Appellees.

Appeals from the United States District Court 
for the Northern District of Alabama

(April 30, 1991)

Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, 
and HENDERSON, Senior Circuit Judge.

PER CURIAM:

Appellants' appeal from the district court's judgment 
in favor of the appellees on appellants' claims under Title

A-3

VI, Title VII and the equal protection clause of the four­
teenth amendment.

During proceedings in this case, the district court 
denied the appellants' motion to add the Talladega City 
Board of Education as a party defendant and also denied 
a motion for admission pro hac vice of two attorneys for 
the appellants from the NAACP Legal Defense Fund. We 
find that the district court abused its discretion in deny­
ing these motions.

Accordingly, we vacate the judgment of the district 
court and remand this cause with directions to the district 
court to grant the motion for leave to amend, grant the 
motion for admission pro hac' vice, permit such addi­
tional discovery as may be necessary and conduct such 
additional evidentiary hearings as determined appropri­
ate by the court.

VACATED and REMANDED with directions.



A-4

APPENDIX 2
IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ALABAMA 
EASTERN DIVISION

QUINTIN ELSTON, ET AL„ 
PLAINTIFFS,

VS.
TALLADEGA COUNTY 
BOARD OF 
EDUCATION, ET AL„

DEFENDANTS.

)
)
)
)
)
)
)
)
)

CV88-H-2052-E 
(Filed Sep 19, 1989)

FINDINGS OF FACT 
AND

CONCLUSIONS OF LAW

This action was tried before the court, without the 
aid of a jury, on August 21, 22 and 23, 1989. The matter is 
now under submission and the court herein sets forth its 
findings of fact and conclusions of law. Pursuant to the 
Pretrial Order, counsel for the parties filed with the court 
on August 11, 1989 a statement of agreed and disputed 
facts. The court's findings of fact and conclusions of law 
are basically addressed to the proposed facts contained in 
that document in the order and under the headings set 
forth therein.

Stipulated Facts

In 54 separately numbered paragraphs the parties 
stipulated a number of facts and each of those stipulated 
facts are accepted by the court as facts for the purposes of 
this action. The court does, however, note that at least

A-5

one of those stipulated facts may not be correct but any 
error is relatively immaterial. In paragraph 13 of the 
stipulated facts, counsel stipulated that defendants' plan 
for the students currently residing in Jonesview and Tal­
ladega County Training School zones to attend Talladega 
County Training School for grades 7 through 12. Defen­
dant Lance Grissett has such plan and will recommend 
such to the Board of Education but the Board of Educa­
tion has not formally approved such plan.

Plaintiffs' proposed factual findings

In 44 separately numbered paragraphs counsel for 
plaintiffs presented to the court proposed factual find­
ings. The court will now set forth, using the same para­
graph numbers, some of its findings of fact and 
conclusions of law germane to each proposed factual 
finding. The failure to include the language or the "facts" 
as proposed by counsel for plaintiffs could generally be 
viewed as a determination by the court that the proposed 
language or "facts" have not been established or are 
embraced in other findings or conclusions found else­
where in this document.

1. Defendants plan to discontinue grades K-6 at 
Jonesview (an historically white school) and at Talladega 
County Training School (an historically black school) and 
to relocate those grades at the site of the former Idalia 
School (which burned in 1986) in a new school building 
which will house grades K-6 from the three school zones.

2. Black parents have contributed significant time 
and financial resources to support and enhance the



A-6

Talladega County Training School. Despite these contri­
butions and the expenditures by the Board of Education 
for maintenance and improvements over the years, the 
Training School, like other schools in the system, has 
generally deteriorated. A renovation and rebuilding pro­
gram has been underway for several years and Talladega 
County Training School is slated for substantial renova­
tion in the immediate future. Several historically white 
schools are not as far along as Talladega County Training 
School in the renovation plans.

3. Assignment of all students from the new school 
to the Talladega County Training School for grades 7-12 
would add about 135 white students to the Training 
School which would significantly improve integration at 
the Training School. About 55 of those students would 
come from Jonesview Elementary School zone and 
approximately 80 would be supplied by Idalia Elemen­
tary School zone. While it seems clear the Jonesview 
students will be so assigned, the Board has not made a 
decision as to where the Idalia students will be assigned.

4. Although the Board has never formally voted to 
close the elementary section of the Talladega County 
Training School or voted to close Jonesview Elementary 
school, when the Board approved the construction of the 
new 500 pupil school to be known as Stemley Bridge 
Road Elementary, implicit in that decision was the closure 
oi jonesview and the elimination of elementary grades at 
the Talladega County Training School.

5. The Talladega County Board of Education has not 
finalized where students attending the new school who 
currently live in the Idalia School zone will go for grades

A-7

7-12, but the Superintendent presently intends to recom­
mend that many of them attend Drew Middle School for 
grades 7-8 and Lincoln High School for grades 9-12 which 
are the schools those students have historically been 
zoned to attend.

6. Defendants plan to renovate the Talladega 
County Training School for use as a 7-12 facility. As of 
June 1988, the estimated expenditure on renovation for 
the Training School was $500,000.

7. The construction of a new school at the site adja­
cent to the Idalia School, originally estimated to cost 
about $1,200,000, later estimated to cost $1,800,000, is 
now anticipated by defendants to cost almost $2,600,000.

8. The plan to renovate all buildings at the Training 
School for use in the operation of a grades 7-12 school 
would cost essentially the same whether the new elemen­
tary school is located there or elsewhere. The cost of 
construction of a new school building containing about 
53,000 gross square feet for use as a K-6 grade school for 
about 550 students would be approximately the same 
whether constructed at the Idalia or at the Talladega 
County Training School site.

9. In 1988 the Board relocated the Phyllis Wheatley 
Middle School, which historically was a black school, to a 
new facility about a mile from its former site. Although 
its name was changed to Childersburg Middle School, its 
attendance zones, faculty and bus routes did not change. 
The composition of the student body remained the same.

10. Some black parents, including Mr. Charles 
Woods (a local leader), objected to moving the Wheatley



A-8

School to the new location and changing the name. Mr. 
Woods believed the plan was racially motivated and part 
of a pattern of closing historically black schools. He asked 
to be allowed to meet with the Talladega County Board of 
Education to express his opposition to the moving of 
Phyllis Wheatley but was not successful in arranging 
such a meeting.

11. Under the terms of a resolution adopted 
i\uvcmber 22, 1983 by the Talladega County Board of 
Education and filed in this court in Lee v. Macon County 
prior to the March 13, 1985 "unitary" order, the Board 
committed itself to maintaining a unitary, nondiscrimina- 
tory school system. There is no evidence that it has vio­
lated this commitment since March 13, 1985; and the 
court is satisfied that the Board's actions and decisions 
challenged in this suit do not violate that commitment.

12. Prior to the March 13, 1985 order (a) determin­
ing that the Talladega County School System had attained 
unitary status and (b) dismissing the Talladega County 
Board of Education from the Lee v. Macon County litiga­
tion, the Board decided to close Hannah Mallory Elemen­
tary School, a 100% black school with grades K-6, at the 
end of the school year 1984-85. A formal "closure" resolu­
tion was adopted in the summer of 1985. 13 * * * * * *

13. When the Hannah Mallory School was closed
after the 1984-85 school year, the Hannah Mallory atten­
dance zone was divided among three attendance zones
primarily on a proximity basis. Prior to the March 13,
1985 unitary order, defendants had submitted to the
Department of Justice the proposed closing of Hannah
Mallory and the anticipated distribution of its students as

A-9

actually distributed. The plan envisioned assigning the 
132 black students at Hannah Mallory as follows: 26 -  
Childersburg; 26 -  Jonesview; 80 -  Talladega County 
Training School. Childersburg zone, Jonesview zone and 
Talladega County Training zone all received the Hannah 
Mallory students, all of whom were black.

14. As a result of the zoning changes made in 1985 
when Hannah Mallory was closed, about 132 black stu­
dents were reassigned to the three zones earlier men­
tioned. The following school year, as a result of a 
combination of those assignments and natural or normal 
enrollment fluctuations, black student enrollments in 
grades K-6 in the three receiving school districts 
increased as follows: Jonesview went from 85 to 116; 
Childersburg went from 134 to 147; and Talladega County 
Training went from 134 to 236.

15. This increase crowded the facilities at the Train­
ing School and required the use of some portable class­
rooms. Disbursement of the Hannah Mallory students 
among the three receiving zones promoted integration in 
the Childersburg zone, adversely affected integration in 
the Jonesview zone and had no significant effect on inte­
gration at Talladega County Training School. The 
increased concentration of black students at the Training 
School makes it more difficult to desegregate the Training 
School, but the planned new school will dramatically 
improve the black-white ratio for the students who cur­
rently attend grades K-6 at the Training School. Those 
students currently are in an environment which is 99% 
black and will be in an environment that is 70-75% black.



A-10

16. This proposed fact has not been established.

17. This proposed fact has not been established.

18. The additional K-6 zone that was created for the 
Training School following the closure of Hannah Mallory 
is not contiguous with the original Training School K-6 
zone and in this respect it is unique; but the K-6 zone is 
contiguous to a then existing Training School 7-12 zone.

19. There is property adjacent to the Talladega 
County Training School which if acquired by gift, pur­
chase or condemnation, would have been suitable for 
expansion. This includes property owned by members of 
the Dumas family and the Lawson family. A minimum of 
15 acres were needed for the new school and the Board 
ultimately was able to acquire for the new school 48 acres 
at the Idalia site in October of 1987. 20

20. Inquiries in the spring of 1988 made to a repre­
sentative of the Dumas property owners by the principal 
of the Talladega County Training School, Mr. John 
Stamps, caused Mr. Stamps to conclude and to report that 
the Dumas owners after resolving a boundary line prob­
lem with the Board, might be receptive to offers to pur- 
^ase or swap land and might even donate some property 
to the school. The Dumas representative seemed partic­
ularly concerned that a portion of their land might be 
across the road and was being used by the school as 
school land. All of this took place after the Board of 
Education had acquired a 48 acre site at Idalia and made 
the decision to build the new school at the Idalia site and 
also after including funds for construction of the new 
school in the bond issue authorized December 1, 1987.

A-l 1

21. In 1988, Mr. Stamps inquired of a representative 
of the Lawson family whether it would consider the sale 
of about 6 acres of property adjacent to the school. This 
was adjacent to the football field and was not a suitable 
site for a new school facility. The representative reported 
that if absolutely necessary, the family might consider a 
sale. This conversation also took place after the Board 
had acquired the 48-acre site at Idalia.

22. There is no evidence that the Board sought opin­
ions from parents, black or white, of students to be 
affected by the decision to create a single large elemen­
tary school to serve the Jonesview, Talladega County 
Training and Idalia zones. Board meetings, however, have 
been open to all parents and interested persons. The 
Board sets aside a portion of each meeting to receive 
comments, complaints, etc., from members of the public 
in attendance.

23. On January 21, 1988, Mr. Augustus Elston wrote 
Superintendent Grissett noting that concerned parents 
with children in attendance at Talladega County Training 
High School were requesting permission to be heard at 
the next meeting of the Talladega County Board of Educa­
tion. The letter stated that "[t]here are many items of 
grave concern that we need to discuss." This letter was 
also sent to the other Board members. The next day the 
Superintendent of the Board wrote to Elston, referring 
him to Principal Stamps and saying he (the Superinten­
dent) would be glad to meet with Mr. Elson, if necessary. 
This letter was followed up by a telephone call from 
Principal Stamps to Mr. Elston.



A-12

24. On January 27, 1988, Mr. Elston again wrote to 
Dr. Grissett requesting that concerned parents of Tal­
ladega County Training High School be allowed the 
opportunity to be heard at the next Board meeting. The 
letter requested that if the parents were not following the 
proper channels to get on the agenda, that they be 
;nformed of the correct procedure. Copies were sent to 
the other Board members. No response to this letter was 
made by any Board member or Dr. Grissett.

25. On February 9, 1989, Mr. Elston wrote to Dr. 
Morris, Chairman of the Talladega County Board of Edu­
cation, complaining about an atmosphere of racism and 
racially prejudiced occurrences, and expressed concern 
that the Training School had been marked for closure and 
been excluded from recent planning for facility improve­
ments. Four days later the Chairman of the Board of 
Education responded, specifically referring to the Tal­
ladega City Training School concerns and welcoming 
them to a Board meeting to voice any concern. Mr. Elston 
attended the next Board meeting but when the time set 
aside to receive public comments arrived, Mr. Elston did 
not speak up. Mr. Elston explains this silence by his belief 
mat it was too late in the meeting for the Board properly 
to consider his concerns.

26. This proposed fact has not been established.

27. On June 23, 1988, the Board, through its counsel, 
informed counsel for some of the plaintiffs in writing that 
the new school would accommodate students currently 
enrolled in the Idalia School and the "surrounding area" 
and that the attendance zone for the new school "could"

A-13

include students from Lincoln Elementary and the Train­
ing School. The Board, through its counsel, reported that 
it had no plans to change the use of the Jonesview Ele­
mentary School. No evidence was presented to the court 
which sheds light on this incorrect information in such 
correspondence.

28. With respect to the May 1988 request for state 
facilities surveys referenced in paragraph 35 of the Stipu­
lated Facts, the Board, through its counsel, informed 
counsel for plaintiffs that when the Board received the 
facilities reports, a copy would be made available.

29. This proposed fact has not been established.

30. Significant numbers of white students who re­
side within the Talladega County Training School zone 
attend public schools in the Talladega City School system. 
This has occurred for many years and occurred long 
before the March 13, 1985 "unitary" order.

31. Dr. Grissett has not contacted school officials of 
the Talladega City School system in an effort to stop it 
from accepting into its system children who reside in the 
Talladega County Training School zone.

32. This proposed fact has not been established.

33. On April 19, 1979, the Justice Department noti­
fied counsel who represented both the Talladega City 
Board of Education and the Talladega County Board of 
Education that the Talladega City School system was 
governed by a provision in its school desegregation order 
that it should not consent to transfers where the cumula­
tive effect would reduce desegregation in either district.



A-14

34. As required by state law, defendants have trans­
ferred school records of students leaving the Talladega 
County School system after they have enrolled in the 
Talladega City School system.

35. The Talladega County School system does not 
have a written policy regarding verification of residences 
of students seeking to enroll in County schools. It does 
seek to verify the residences of students in its system 
transferring to another school in its system.

36. Defendants are aware of zone-jumping by white 
and black students alike. Many of the white students are 
likely avoiding historically black Talladega County Train­
ing School. One of the objectives in building the new 
Stemley Bridge Road Elementary School was to discour­
age such zone-jumping; another of such objectives was to 
foster and promote integration of children in the three 
affected zones.

37. This proposed fact has not been established.

38. If there is any significant zone-jumping within 
the County system by students avoiding the Training 
School, no evidence sufficient to reach that conclusion 
has been presented. 39 40

39. The Board of Education provides transportation 
to students who attend school in the County system and 
it is possible for some students to use that transportation 
to attend an incorrect school.

40. The Talladega County Board of Education may 
have received an inquiry in 1984 by the Justice Depart­
ment regarding possible zone-jumping by students avoid­
ing historically black Hannah Mallory School and the

A-15

Talladega County Training School. The extent of any such 
zone-jumping in 1984 is not known.

41. About ten years ago, when a portion of the 
Talladega County school district was sought to be 
annexed by a school system in another county, the Board 
took steps in Lee v. Macon County to stop the annexation. 
The area sought to be annexed contained mostly white 
students and both the school systems involved were 
under court ordered integration. The Board has taken 
few, if any, steps to stop the loss of white students to the 
separate school systems operated by the City of Talladega 
or the City of Sylacauga from predominately and histori­
cally black Talladega County Training School.

42. The Talladega County Board's policy authorized 
majority-to-minority transfers.

43. The Talladega County Board has not advertized 
[sic] the availability of the majority-to-minority transfer
option.

44. One of the members of the Talladega County 
Board was recently asked and did not know what a 
majority-to-minority transfer is.

Facts to be offered by proffer

The document filed August 11, 1989 contain 10 para­
graphs setting forth "facts" which counsel contemplated 
would be offered to the court by a proffer. No proffer was 
made during the trial and that section of the August 11, 
1989 document will not be addressed by the court.



A-l 6

Defendants' proposed factual findings

In 24 separately numbered paragraphs counsel for 
defendants presented to the court proposed factual find­
ings. The court will now set forth, using the same para­
graph numbers, some of its findings of fact and 
conclusions of law germane to each proposed factual 
finding. The failure to include the language or the "facts" 
as proposed by counsel for defendants could generally be 
viewed as a determination by the court that the proposed 
language or "facts" have not been established or are 
embraced in other findings or conclusions found else­
where in this document.

1. Plaintiffs have failed to establish their entitle­
ment to prevail or obtain relief under any of the claims 
they have made in their complaint.

2. There has been no significant or material change 
in the percentage of white and non-white students 
attending schools operated by the Talladega County 
Board of Education during the past 15 years.

3. The Talladega County schools were under the 
supervision of the United States District Court from 1970 
until March 13, 1985.

4. The Talladega County Board of Education was 
dismissed from the Lee v. Macon County litigation on 
March 13, 1985 by consent, the court expressly conclud­
ing that the system had achieved a unitary status.

5. The closing of Jonesview School, the elimination 
of grades K-6 at Talladega County Training School, and 
the consolidation of all those students with students in

A-l 7

the Idalia zone at a new facility under construction adja­
cent to and on the north side of the old Idalia site is 
consistent with the operation of a unitary, racially non- 
discriminatory public school system. The anticipated 
zones for the students when they reach grades 7-12 are 
also consistent with such an operation.

6. The decision to build the new Stemley Bridge 
Road Elementary School now under construction has not 
been shown to have been racially motivated. Its construc­
tion will provide better educational opportunities for all 
of the children it serves. Construction of the new Stemley 
Bridge School will enhance desegregation of grades K-6 
at the present Talladega County Training School, since it 
will take students who are now in an environment about 
99% black and change that ratio to about 70-75% black.

7. The Board was reasonable in assuming that the 
Lawson family which owns much of the land around the 
present site of the Talladega County Training School 
likely would not sell land to the Board. 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. Regardless of whether land might have been 
available at the Talladega County Training School site, the 
Board made a sound decision from an educational view­
point not to locate the new elementary school at the site 
of a middle school/high school. This decision did not 
have a racially discriminatory animus and did not have a 
disparate impact on blacks.

8. The plaintiffs have not shown that the location of 
the new Stemley Bridge Road School was racially moti­
vated or effected a disparate impact on blacks.



A-18

9. Talladega County Training School is not sched­
uled for closing, but is scheduled for substantial renova­
tion and upgrading so that it may serve as an expanded 
grades 7-12 school. The capital outlay for the improve­
ments will equal or exceed $500,000.

10. The Talladega Board of Education neither 
"allows" nor "condones" out-of-zone attendance, or
zone-jumping" by a child residing within its system but 

attending a public school outside its system. The Board 
has a significant financial interest in discouraging such 
zone-jumping. The Board also has a general policy 
against a child zoned for one of its schools attending one 
of the Board's schools out of his/her zone, but it has two 
reasonable exceptions to this policy, viz., children of 
employees of the Board may attend in the zone of a 
parent's employment and children in need of special 
education may attend out-of-zone. No evidence even sug­
gests that these exceptions are abused or applied along 
racial lines, and it is clear the Board takes steps calculated 
fo assure that a child in its system attends the proper 
school. Talladega County School personnel have been 
aware for quite some time that students of both races, but 
primarily white students, who are zoned for Talladega 
County schools such as Talladega County Training School 
are attending schools in the Talladega City system and 
the Sylacauga City system. Talladega County school per­
sonnel are, as a practical matter, unable to prevent this, 
since the enrollment and attendance of a public school 
student is verified and determined by the gaining school 
system (i.e„ the city school system) and not by the losing 
school system (in this case, Talladega County). Talladega 
County loses approximately $2,000 to $3,000 (depending

A-19

upon the year) of state education money per child per 
year for every county" student who attends a "city" 
system school.

11. Talladega County school personnel have previ­
ously attempted to bring the problem discussed in para­
graph 10 above to the attention of the Federal Bureau of 
Investigation and the United States Justice Department, 
but nothing has happened.

12. Only one historically black school (Hannah Mal­
lory) has been closed since 1970. One historically white 
school (Eastoboga) has also been closed during that 
period and another historically white school (Jonesview) 
is currently in the process of being closed.

13. At the end of the 1987-88 school year, the Phyllis 
Wheatley School, with the support of some members of 
the local black community and over the objections of 
other members of the local black community, was relo­
cated to a new site about one mile away. The relocation of 
Phyllis Wheatley School did not change the bus route, 
faculty, or student composition in any way. The name of 
the school was changed to Childersburg Middle School.

14. In 1985 Hannah Mallory was the only remaining 
one-race school in Talladega County. It had been allowed 
to remain that way during the entire time the school 
system was operating under its Lee v. Macon County inte­
gration order primarily because of the school's geograph­
ical location and the difficulty of integrating it.

15. The trend in modern public education is to con­
solidate smaller "neighborhood" schools into larger ones 
with more diverse student bodies and better facilities.



A-20

The new Stemley Bridge Road School is in line with this 
. end, and it will make modern, up-to-date facilities 
available to a large number of children in grades K-6. Its 
student body will be 70-75% black.

16. There were two principal logistical problems 
with locating the new larger elementary school at the site 
of Talladega County Training School: (1) adequate land 
consisting of a minimum of 15 acres was not readily 
available, and (2) the Board needed the existing space at 
Talladega County Training School embracing about 55,000 
square feet for its planned upgrade of that school and the 
enhanced grades 7-12 program it now has planned. The 
Board also had a strong desire not to locate the large, 
consolidated elementary school at the site of a middle 
school or a high school.

17. The new Talladega County Training School 
building program will include an up-to-date library, a 
media center embracing a computer lab, and the addition 
of adequate science laboratory space. It will also include 
greatly expanded home economics and industrial arts 
programs and facilities. The remodeling program also 
includes substantial physical improvements, such as re­
wiring, re-lighting, replacement of all windows and 
doors, etc. 18

18. By expanding and upgrading the facilities at 
Talladega County Training School to enhance the educa­
tion offered to grades 7-12 there, the Board hopes to be 
able to improve its course offerings and attract and retain 
more white students to improve racial balance at Tal­
ladega County Training School. Regardless of how effec­
tive this upgrade is in attracting more students to that

A-21

school who are now going to private schools or to adjoin­
ing public systems, the planned renovation at Talladega 
County Training School will unquestionably improve the 
quality of education for students now attending there.

19. The Talladega County Board of Education has 
moved forward to improve the quality of education 
offered to all of its students since March 13, 1985. In so 
doing there is no evidence which can support a conclu­
sion that race impermissibly was considered in the deci­
sion-making process. There was no discriminatory 
animus behind the plans and decisions challenged in this 
case and it is clear that the challenged plans and deci­
sions have had no disparate impact on blacks.

20. It is clear to the court that over the years the 
Board has delayed providing to the public, black and 
white alike, information with regard to developments 
under consideration by the Board, but there is no evi­
dence that this has been done in a racially discriminatory 
manner or with a racial animus. The Board has not 
refused to receive comments or input from plaintiffs at 
Board meetings or otherwise.

21. Mr. Elston wrote a total of three or four letters to 
Talladega County school personnel, but all of those letters 
were vague and he never made any follow up about what 
his "concerns" were. In all but one instance the Board 
properly responded to such letters. The court is partic­
ularly impressed with the restrained response (Plaintiffs' 
Exhibit 4) to one of such letters (Plaintiffs' Exhibit 5). 
Neither Mr. Elston nor any other plaintiff who attended a 
Board meeting asked to speak to the Board meeting about



A-22

any of the “concerns" which they have raised in the
complaint.

22. The extent of the "zone-jumping" in which Tal­
ladega County students are attending Talladega City or 
Sylacauga City schools is not known, but it involves a 
significant number of students, most of which are white 
but some of which are black. Any such jumping does not 
appear to have changed significantly over the years the 
racial composition of the students in the Talladega 
County system or the Talladega City system. Talladega 
County system enrollment has remained about constant 
at 43% black and Talladega City system enrollment has 
moved in recent years from 40% black to 43% black 
notwithstanding the City's receipt of students who reside 
outside the City. Many of the students who are or have 
been attending Sylacauga City Schools have done so 
oi.Ucr "temporary guardianship" or similar court orders 
which could well have been devices to permit their atten­
dance at Sylacauga City Schools. There is no evidence 
that the orders are fake and it seems that each such order 
was signed by a state court judge with appropriate juris­
diction. With regard to each of these "receiving" systems, 
the Talladega County Board has few, if any, avenues 
available to it to stop this drain from its system other 
than to discourage it by improvements to its system, such 
as the improvements out of which this suit arose. Cer­
tainly it is clear that the Board would like to stop the 
zone-jumping. The Board is in no way intending to dis­
criminate against plaintiffs on the basis of race or to deny 
plaintiffs equal protection by not being more "creative" in 
finding a way to prevent such zone-jumping.

A-23

23. The Talladega County School System has not 
notified parents of children going out of zone" to 

another public school system that their actions are 
improper. Defendants' view that it has no legal right or 
duty to do so is a sincere view with a reasonable basis to 
support it. Transferring school records, in accordance 
with state law requirements, of students leaving the 
County system for the City system does not make the 
defendants accountable for the conduct of the parents 
and the receiving school officials. Any "zone-jumping" 
among or between zones in the County school system is 
very limited, not authorized by the defendants, includes 
black as well as white students, and is largely corrected 
through the Board's policy of requiring the receiving 
principal to investigate transfers within the County's sys­
tem.

24. One of the purposes, and hopefully one of the 
results of the upgrading and enhancement of Talladega 
County Training School grades 7-12 is to stop the loss of 
white students by providing attractive physical facilities 
and curriculum changes at Talladega County Training 
School.

Summary

In this case plaintiffs have endeavored to establish 
that several decisions and practices of defendants violate 
or violated (a) the Equal Protection Clause of the Four­
teenth Amendment, (b) Title VII of the Civil Rights Act of 
1964, 42 U.S.C. § 2000d, et seq., and (c) regulations pro­
mulgated to effectuate Title VI, 34 C.F.R. §100 et seq., and 
particularly 34 C.F.R. § 100.3. They have failed in this



A-24

endeavor. Wilh regard to all such claims, plaintiffs have 
a.led to establish by a preponderance of the evidence 
hat any of the challenged decisions and practices were 
■nted by a racially discriminatory animus. A discrimi­

natory intent being a prerequisite to recovery under the 
constitutional claim and the statutory claim, defendants 
are en ,tied to a judgment in their favor on these claims. 
Also, to the extent that plaintiffs sought to prevail on
disparate treatment theories under their claims predicated 
on regu|atlons lo ef/ec,uate Ti,|e Vl_ defendanls arc en[._

, to a judgment in their favor. With regard to the 
claims based on disparate impact theories under the regu-

Is't'ahT h i  effeC,Ua' e T‘tle VI' P’aln,iffS have faiI«* establish by a preponderance of the evidence that any of
e c a enged decisions and practices violated the regu-

_  ions or otherwise had a disparate impact on blacks.
hus plamtiffs have not established even a prima facie

case under the regulations. Even though defendants had
no burden of proof, they have articulated and established
by clear and convincing evidence substantial, legitimate
non-d,scriminatory reasons for the decisions and prac-
tices in question. Since the court has earlier held that the
decisions and practices of defendants did not result in a

isparate impact on plaintiffs, it goes without saying that
plaintiffs also failed to establish an alternative to the
chal enged decisions and practices which alternative
would have resulted in less of a disparate impact.

A separate final judgment in favor of defendants will 
he entered.

A-25

DONE this 19th day of September, 1989.

/s/ James H. Hancock
UNITED STATES DISTRICT 
JUDGE



A-26

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA 

EASTERN DIVISION

QUINTIN ELSTON, ET AL„ )
PLAINTIFFS, }

VS. )
TALLADEGA COUNTY BOARD J
OF EDUCATION, ET AL„ j

DEFENDANTS. )

CV88-H-2052-E
Filed

Sep 19, 1989

FINAL JUDGMENT

In accordance with the findings of fact and conclu­
sions of law this day entered, it is hereby ORDERED, 
ADJUDGED and DECREED that judgment in favor of 
defendants is ENTERED. Costs are taxed against plain­
tiffs.

DONE this 19th day of September, 1989.

/s/ James H. Hancock 
UNITED STATES 
DISTRICT JUDGE

A-27

APPENDIX 3
IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 89-7777

QUINTIN ELSTON; RHONDA 
ELSTON; and TIFFANIE ELSTON, all 
minor children, by and through their 
parents and guardians, AUGUSTUS 
ELSTON, and CARDELLA ELSTON; 
on behalf of themselves and all other 
similarly situated black children and 
parents or guardians of black 
children in Talladega County in the 
State of Alabama, etc., et al.,

Plain tiffs-Appel lan ts,
versus
TALLADEGA COUNTY BOARD OF 
EDUCATION; LANCE GRISSETT; 
DAN LIMBAUGH, M. R. WATSON; 
GAY LANGLEY; AND LARRY 
MORRIS and BEULAH BARRETT;

JOSEPH POMEROY,
Defendants-Appellees,

Defendant.



A-28

No. 89-7917

TORRANCE BECK, a/k/a 
Albert Beck, Jr.,

Plaintiff,
QUINTIN ELSTON, RHONDA 
ELSTON, and TIFFANIE ELSTON, all 
minor children, by and through their 
parents and guardians, AUGUSTUS 
ELSTON and CARDELLA ELSTON; 
on behalf of themselves and all other 
similarly situated black children in 
Talladega County in the State of 
Alabama,

Plain tiffs-Appellants,
versus

TALLEDEGA COUNTY BOARD OF 
EDUCATION; LANCE GRISSETT;
DAN LIMBAUGH; M. R. WATSON;
GAY LANGLEY; LARRY MORRIS; 
and BEULAH GARRETT,

Defendants-Appellees.

Filed June 7, 1991

Appeals from the United States District 
Court for the Northern District of Alabama

ON PETITION(S) FOR REHEARING

BEFORE: TJOFLAT, Chief Judge, DUBINA, Circuit 
Judge, and HENDERSON, Senior Circuit 
Judge.

1

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PER CURIAM:

The petition(s) for rehearing filed by appellant's is 
denied.

ENTERED FOR THE COURT:

I s /  Joel F. Dubina
UNITED STATES CIRCUIT JUDGE



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APPENDIX 4
♦ X- X-

715, 725-26 (1966).

V. THE DISTRICT COURT ABUSED ITS DISCRETION
IN REFUSING TO JOIN THE TALLADEGA CITY
BOARD OF EDUCATION AS A PARTY

After learning in depositions in early May that inter­
district transfers to the Talladega City schools were sig­
nificant and documented and that the County School 
Board relied exclusively on an argument that it was 
beyond their power to prevent County students from 
attending the City schools, plaintiffs moved on May 25, 
1989 to join the City Board as a party in the litigation 
(Rl-62). Defendants did not object.

The district court denied the motion solely because it 
was beyond the May 5 deadline that the court set direct­
ing that the "parties to the litigation . . . shall be reflected 
by the pleadings on file" on May 5, 1989 (Rl-63).

Plaintiffs contend that the court abused its discretion 
here by exercising it in a manner directly contradictory to 
Fed. R. Civ. P. 21, which specifically permits a party to be 
dropped or added "at any stage of the action." Fed. R. 
Civ. P. 21.71 A request to add parties is generally denied 
when it is so late in the litigation that it will delay the

71 Parties have been added on appeal, Reed v. Robilio, 376 
L2d 392 (6th Cir. 1967), after trial, Rcichcnberg v. Nelson, 310 F. 
upp. 248 (D. Neb. 1970), and in the Supreme Court, Rogers v. 

0952)382 ^  ̂ 105 1̂965 ;̂ Mullaney v■ ^derson, 342 U.S. 415

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case or prejudice any of the parties to the action, Wright, 
Miller & Kane, Federal Practice & Procedure, § 1688 at 
467-69 (1986); however, that was not the case here.

Here the date was arbitrarily set at the outset of the 
litigation; defendants did not object to the addition or 
claim prejudice; the request was only 20 days after the 
Court deadline; discovery was ongoing and not com­
pleted until shortly before trial in August; all the discov­
ery necessary with respect to Talladega City was also 
necessary for the claim against the County and was taken 
anyway. Courts routinely add surrounding school dis­
tricts in interdistrict transfer cases.77 Substantial case law 
supports joining parties to existing litigation where the 
party sought to be joined could frustrate or interfere with 
the relief granted by the court.72 73

Wrongly refusing to add the City Board of Education 
as a party also caused the district court to err in ordering 
plaintiffs to pay hourly fees and costs to the City on the 
grounds that "a non-party should not bear such cost."

72 See United States v. Lowndes County, 878 F.2d at 1302 
(after the government's investigation revealed a network of 
interdistrict transfers Montgomery, Pike, Coffe, Covington, 
Conecuh, and Wilcox Counties and Elba City were later added 
as defendants for the limited purpose of considering inter­
district transfers); Robinson v. Alabama State Department of Edu­
cation, Civ. No. 86-T-569-N (M.D. Ala. Order of Aug. 3, 1987) 
(adding surrounding school districts as parties defendant on 
the issue of interdistrict transfers).

73 Swann v. Charlotte-Mecklenburg Bd. of Educ., Civ. No. 
1974 (D.N.C. Order of Feb. 25, 1970) (See appendix at 52, North 
Carolina State Ed. of Educ. v. Swann, 402 U.S. 43 (1971)); Ben­
jamin v. Malcolm, 803 F.2d 46, 53 (2d Cir. 1986); Bradley v. School 
Bd. of City of Richmond, 51 F.R.D. 139, 143 (E.D.Va. 1970).



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(Rl-68.) Further, with respect to the $5,188 awarded, it is 
impossible to determine how many hours were spent, by whom, 
or what hourly rate is claimed. (Rl-92; Rl-91.) In these 
circumstances, it was an abuse of discretion for the court 
to order plaintiffs to pay $5,188 to the City Board.

V. THE DISTRICT COURT ABUSED ITS DISCRETION
IN DENYING ADMISSION PRO HAC VICE TO
PLAINTIFFS' COUNSEL

The district court abused its discretion in denying 
admission pro hac vice to two of plaintiffs' attorneys from 
the NAACP Legal Defense Fund on the ground that it 
would place an undue burden on the taxpayers if plain­
tiffs won (Rl-20). First, the district court awards attor­
neys' fees and in its discretion can eliminate any requests 
that are duplicative or excessive and can set appropriate 
hourly rates. But, more importantly, this Court has ruled 
that "civil rights litigants may not be charged with selec­
ting the nearest and cheapest attorney."74 While plaintiffs 
do have well qualified local counsel, the court did not 
consider the arrangements between local counsel and 
LDF for sharing the work-load, nor plaintiffs' interest in 
having lawyers with special expertise in school deseg­
regation cases. The district court's ruling was improper 
and an abuse of discretion.75

74 Johnson v. University College of the University of Alabama, 
706 F.2d 1205, 1208 (11 h Cir. 1983) (quoting Dowdell v. City of 
Apopka, Florida, 689 F.2d 1181, 1188 (11th Cir. 1983).

75 See Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968).

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Conclusion

For the foregoing reasons, plaintiffs respectfully 
request that each of the district court's rulings challenged 
above be reversed and that the case be remanded for 
consideration of Counts I, IV, and V.

Respectfully submitted,
Janell M. Byrd 
CLEOPHUS THOMAS, JR. 
P.O. Box 2303 
Anniston, AL 36202 
(205) 236-1240
JANELL M. BYRD 
1275 K Steet, N.W., #301 
Washington, D.C. 20005 
(202) 682-1300

Counsel for Plaintiffs-Appellants

/s/

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 

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