Thomie v. Dennard Reply Brief for Plaintiffs-Appellants
Public Court Documents
February 18, 1972
Cite this item
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Brief Collection, LDF Court Filings. Stout v. Jefferson County Board of Education Plaintiffs-Appellants/Cross-Appellees' Response and Reply Brief, 2017. ad71b147-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/97ee1a13-397d-41fe-b3d6-7a657b0d0954/stout-v-jefferson-county-board-of-education-plaintiffs-appellantscross-appellees-response-and-reply-brief. Accessed April 27, 2025.
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DOCKET NO. 17-12338
ISnitci States (Unurt nf Appeals
for the
lEleuentlj (Etrnrit
LINDA STOUT, LONNELL CARTER, ALFORNIA CARTER, SANDRA RAY,
RICKY REEVES, ALENE REEVES, and CATRENA CARTER, on behalf of
themselves and others similarly situated,
Plaintiffs-Appellants/Cross-Appellees,
v.
JEFFERSON COUNTY BOARD OF EDUCATION, et al.,
Defendants-Appellees/Cross-Appellants,
GARDENDALE CITY BOARD OF EDUCATION,
Defendant Intervenor-Appellee/Cross-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CASE NO: 2:65-cv-00396-MHH
__________________________ (Hon. Madeline H. Haikala)__________________________
PLAINTIFFS-APPELLANTS/CROSS-APPELLEES’
RESPONSE AND REPLY BRIEF
CHRISTOPHER KEMMITT
NAACP Legal Defense &
Educational Fund, Inc.
1444 Eye Street NW, 10th Floor
Washington, DC 20005
(202)682-1300
ckemmitt@naacpldf. org
U.W. CLEMON
U.W. Clemon, LLC
5202 Mountain Ridge Parkway
Birmingham, AL 35222
(205)837-2898
clemonu@bellsouth.net
SHERRILYN A. IFILL
President and Director-Counsel
JANAIS. NELSON
SAMUEL SPITAL
JIN HEE LEE
MONIQUE N. LIN-LUSE
Counsel o f Record
NAACP Legal Defense &
Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, NY 10006
(212) 965-2200
mlinluse@naacpldf.org
Counsel for Plaintiffs-Appellants
Counsel Press (804)648-3664 * (800)275-0668
mailto:clemonu@bellsouth.net
mailto:mlinluse@naacpldf.org
CERTIFICATE OF INTERESTED PARTIES
Plaintiffs-Appellants/Cross-Appellees Linda Stout, Lonnell and Alfomia
Carter, Sandra Ray, Alene and Ricky Reeves, and Catrena Carter (“Stout Plaintiffs-
Appellants”) make the following disclosures of interested parties pursuant to
Eleventh Circuit Rule 26.1:
1. The Hon. Madeline H. Haikala, United States District Judge, Northern
District of Alabama
2. Alfomia Carter, Plaintiff
3. Catrena Carter, Plaintiff
4. Lonnell Carter, Plaintiff
5. Sandra Ray, Plaintiff
6. Alene Reeves, Plaintiff
7. Ricky Reeves, Plaintiff
8. Parents of all African-American students currently enrolled, or will be
enrolled, in the public schools operated by the Jefferson County
(Alabama) Board of Education
9. NAACP Legal Defense and Educational Fund, Inc. (“LDF”)
10. Sherrilyn Ifill, LDF Attorney for Stout Plaintiffs-Appellants
11. Janai Nelson, LDF Attorney for Stout Plaintiffs-Appellants
12. Jin Hee Lee, LDF Attorney for Stout Plaintiffs-Appellants
Page C-l of 4
13. Monique N. Lin-Luse, LDF Attorney for Stout Plaintiffs-Appellants
14. Christopher Kemmitt, LDF Attorney for Stout Plaintiffs-Appellants
15. Deuel Ross, LDF Attorney for Stout Plaintiffs-Appellants
16. Samuel Spital, LDF Attorney for Stout Plaintiffs-Appellants
17. U.W. Clemon, LDF Cooperating Local Attorney for Stout Plaintiffs-
Appellants
18. U.W. Clemon, LLC, Attorney for Stout Plaintiffs-Appellants
19. White Arnold & Dowd P.C., former law firm associated with U.W.
Clemon, Attorney for Stout Plaintiffs-Appellants
20. Jefferson County Board of Education (“JeffcoBdEd”), Defendant-
Appellee/Cross-Appellant
21. Jacqueline A. Smith, JeffcoBdEd Member
22. Dr. Martha V. Bouyer, JeffcoBdEd Member
23. Ronnie Dixon, JeffcoBdEd Member
24. Oscar S. Mann, JeffcoBdEd Member
25. Donna J. Pike, JeffcoBdEd Member
26. Dr. Warren Craig Pouncey, Superintendent, JeffcoBdEd
27. Whit Colvin, Attorney for JeffcoBdEd
28. Andrew Ethan Rudloff, Attorney for JeffcoBdEd
29. Carl E. Johnson, Jr, Attorney for JeffcoBdEd
Page C-2 of 4
30. Bishop, Colvin, Johnson, and Kent, LLC, Counsel for JeffcoBdEd
31. Gardendale City Board of Education (“GBOE”), Defendant-Intervenor/
Cross-Appellant
32. Dr. Michael Hogue, GBOE Member
33. Richard Lee, GBOE Member
34. Christopher Lucas, GBOE Member
35. Adams and Reese, LLP, Counsel for GBOE
36. Dr. Patrick Martin, Superintendent, GBOE
37. Stephen A. Rowe, Attorney for GBOE
38. Russell J. Rutherford, Attorney for GBOE
39. Christopher Gamble, Mount Olive resident
40. Aaron G. McLeod, Attorney for GBOE
41. Giles G. Perkins, Attorney for GBOE
42. United States of America, Plaintiff-Intervenor
43. Kelly Gardner, Attorney, United States Department of Justice, Civil
Rights Division (“DOJ”)
44. Veronica R. Percia, Attorney, DOJ
45. Natane Singleton, Attorney, DOJ
46. Shaheena A. Simons, Attorney, DOJ
Page C-3 of 4
47. Sharon D. Kelly, Assistant United States Attorney, Northern District of
Alabama
48. City of Graysville, Alabama
49. Andrew P. Campbell, Attorney for Graysville
50. John C. Guin, Attorney for Graysville
51. Yawanna Neighbors McDonald, Attorney for Graysville
52. Campbell Guin Williams Guy and Gidiere LLC, Counsel for Graysville
53. Town of Brookside, Alabama
54. K. Mark Parnell, Attorney, Town of Brookside
55. Parnell Thompson, LLC, Counsel for Town of Brookside
56. Mary H. Thompson, Attorney for Town of Brookside
57. Roger McCondichie, Brookside resident
58. Dale McGuire, Brookside resident
We certify that no publicly traded company or corporation has an interest in
the outcome of this case either in the District Court or in this Court.
/s/Monique N. Lin-Luse
Monique N. Lin-Luse
Christopher Kemmitt
NAACP Legal Defense
and Educational Fund,
Inc.
/s/U. W. Clemon
U.W. Clemon
U.W. Clemon, LL
ATTORNEYS FOR STOUT
PLAINTIFFS-APPELLANT
Page C-4 of 4
TABLE OF CONTENTS
PAGE
CERTIFICATE OF INTERESTED PARTIES.....................................................C-l
TABLE OF CONTENTS............................................................................................ i
TABLE OF AUTHORITIES.................................................................................... iii
SUMMARY OF THE ARGUMENT........................................................................ 1
I. The District Court Correctly Ruled that Gardendale’s Secession Was
Motivated by Intentional Discrimination.........................................................5
A. The Evidence Adduced at Trial Overwhelmingly Supported the
District Court’s Factual Finding that Gardendale Sought to
Secede from the Jefferson County School District in Order to
Control the Racial Demographics of Gardendale’s Schools.................6
1. The History of Municipal Secessions.........................................8
2. The Predictable Racial Impact....................................................9
3. TheUnmistakable Racial Motive Underlying the
Secession Campaign and Adopted by the City of
Gardendale................................................................................ 10
4. Procedural and Substantive Departures....................................18
B. Gardendale Attempts to Manufacture Legal Error by
Mischaracterizing the District Court’s Opinion..................................23
C. The District Court Did Not Err in Admitting the Facebook Posts
Documenting Interactions Between Separation Organizers and
Community Members.......................................................................... 27
II. The District Court Correctly Found that Gardendale Did Not Meet Its
Burden to Demonstrate that its Secession Would Not Impede
Desegregation in Jefferson County................................................................30
- i -
A. Ample Evidence Supports the District Court’s Factual Finding
that Gardendale Did Not Meet its Burden for Secession Under
Supreme Court Precedent.................................................................... 35
1. Gardendale Misconstrues the Adverse Impact of
Secession on Student Assignment.............................................37
2. Gardendale Misconstrues the Adverse Impact of the Foss
of Gardendale High School....................................................... 40
3. Gardendale Ignores the Cumulative Impact of Prior
Secessions on JBOE’s Desegregation Efforts...........................44
4. The Timing and Message of Gardendale’s Secession.............45
B. This Case Is Governed by Wright and Its Progeny............................ 47
1. JBOE Remains Subject to the District Court’s Jurisdiction
Under an Operative Desegregation Order.................................47
2. Gardendale’s Remaining Arguments for Circumventing
Wright and Its Progeny Are Equally Untenable........................52
C. Wright Demands Fully Enjoining Gardendale’s Secession from
Jefferson County, and the District Court’s Contrary Ruling Was
Clear Error........................................................................................... 56
CONCLUSION........................................................................................................ 57
CERTIFICATE OF COMPLIANCE.......................................................................59
CERTIFICATE OF SERVICE................................................................................60
- i i -
TABLE OF AUTHORITIES
PAGE(S)
CASES:
Anderson ex. rel. Anderson v. Canton Mun. Separate Sch. Dist.,
232 F.3d 450 (5th Cir. 2000)...............................................................................40
Anderson v. City o f Bessemer,
470 U.S. 564 (1985)..............................................................................................6
Bd. o f Educ. o f Okla. City v. Dowell,
498 U.S. 237(1991).............................................................................................49
Brown v. Bd. o f Educ.,
347 U.S. 483 (1954).............................................................................................24
Brown v. Bd. o f Educ. o f Bessemer,
808 F.2d 1445 (11th Cir. 1987).................................................................... 49, 53
Columbus Bd. o f Educ. v. Penick,
443 U.S. 449 (1979)............................................................................................ 36
Elston v. Talladega Cty. Bd. o f Educ.,
997 F.2d 1394 (11th Cir. 1993).......................................................................... 39
Freeman v. Pitts,
503 U.S. 467 (1992)............................................................................... 36, 47, 52
*Green v. Sch. Bd. o f New Kent Cty.,
391 U.S. 430(1968)...................................................................................... 35-36
Harris ex rel. Harris v. Crenshaw Cty. Bd. o f Educ,
968 F.2d 1090 (11th Cir. 1992).......................................................................... 39
Keyes v. Sch. Dist. No. 1, Denver,
413 U. S. 189 (1973)........................................................................................... 52
Lee v. Macon Cty. Bd. o f Educ.,
584 F.2d 78 (5th Cir. 1978)................................................................................ 47
iii
Lee v. Macon Cty. Bd. o f Educ.,
448 F.2d 746 (5th Cir. 1971).............................................................................. 33
Lee v. Talladega Cty. Bd. o f Educ.,
963 F.2d 1426 (11th Cir. 1992).......................................................................... 47
Lockett v. Bd. o f Educ. o f Muscogee Cty. Sch. Dist.,
111 F.3d 839 (11th Cir. 1997)............................................................................ 36
Manning ex rel. Manning v. Sch. Bd. o f Hillsborough Cty.,
244 F.3d 927 (11th Cir. 2001)............................................................................ 36
McMillan v. Escambia Cty.,
638 F.2d 1239 (5th Cir. 1981)....................................................................... 16-17
Mhany Mgmt., Inc. v. Cty. o f Nassau,
819 F.3d 581 (2d Cir. 2016)........................................................................... 1, 15
Missouri v. Jenkins,
515 U.S. 70 (1995).............................................................................................. 36
NAACP, Jacksonville Branch v. Duval Cty. Sch.,
273 F.3d 960 (11th Cir. 2001)................................................................ 41, 43, 50
Pasadena City Bd. o f Educ. v. Spangler,
427 U.S. 424(1976)....................................................................................... 49-50
Pullman-Standard v. Swint,
456 U.S. 273 (1982)................................................................................................6
Rosen v. Thornburgh,
928 F.2d 528 (2d Cir. 1991)...................................................................................7
*Ross v. Houston Independent Sch. Dist.,
583 F.2d 712 (5th Cir. 1978)....................................................... 33, 34, 52-53, 54
*Ross v. Houston Independent Sch. Dist.,
559 F.2d 937 (5th Cir. 1977)........................................................................ 33, 54
PAGE(S)
IV
PAGE(S)
Smith v. Fairview Ridges Hosp.,
625 F.3d 1076 (8th Cir. 2010).............................................................................15
Stout v. Jefferson Cty. Bd. o f Educ.,
845 F.2d 1559 (11th Cir. 1988)........................................................................... 49
Stout v. Jefferson Cty. Bd. o f Educ.,
537 F.2d 800 (5th Cir. 1976)........................................................................47,48
* Stout v. Jefferson Cty. Bd. o f Educ.,
466 F.2d 1213 (5th Cir. 1972)......................................................................... 9, 33
*Stoutv. Jefferson Cty. ofBd. o f Educ.,
448 F.2d 403 (5th Cir. 1971)....................................................................32-33, 52
Swann v. Charlotte-Mecklenburg Bd. o f Educ.,
402 U.S. 1 (1971)................................................................................................40
Thomas ex. rel. D.M.T. v. Sch. Bd. St. Martin Parish,
756 F.3d 380 (5th Cir. 2014)...............................................................................49
United States v. Englehard Corp.,
126 F.3d 1302 (11th Cir. 1997)......................................................................... 6, 7
United States v. Georgia,
171 F.3d 1344 (11th Cir. 1999)...........................................................................47
United States v. Lanzon,
639 F.3d 1293 (11th Cir. 2011)...........................................................................31
United States v. Lewis,
674 F.3d 1298 (11th Cir. 2012).............................................................................6
United States v. Lowndes Cty. Bd. o f Educ.,
878 F.2d 1301 (11th Cir. 1989).................................................................... 38, 39
United States v. McPhee,
336 F.3d 1269 (11th Cir. 2003)...................................................................6, 7, 23
v
United States v. Siddiqui,
235 F.3d 1318 (11th Cir. 2000)........................................................................... 31
United States v. Tin Yat Chin,
371 F.3d 31 (2d Cir. 2004).................................................................................. 32
United States v. Vayner,
769 F.3d 125 (2d Cir. 2014)............................................................................... 31
* Village o f Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977).......................................................................... 7-8, 9, 10, 20
Washington v. Seattle Sch. Dist. No. 1,
458 U.S. 457 (1982)............................................................................................ 16
* Wright v. Council o f City o f Emporia,
407 U.S. 451 (1972)..................................................................................... passim
Young Apartments, Inc. v. Town o f Jupiter,
529 F.3d 1027 (11th Cir. 2008).......................................................................... 16
PAGE(S)
STATUTES & OTHER AUTHORITIES:
Ala. Code
§ 16-4-4(1975).....................................................................................................43
§ 16-8-20(1975)...................................................................................................43
Fed. R. App. P.
28.1(c)(2)
28.1(c)(4)................................................................................................................ 1
Fed. R. Evid. 901(a).................................................................................................30
PAGE(S)
vi
SUMMARY OF THE ARGUMENT
At trial, Plaintiffs, the Jefferson County Board of Education (JBOE), and the
Department of Justice challenged Gardendale’s efforts to carve a majority-white
municipal school district out of the county’s racially-balanced school system. The
District Court found that Gardendale’s secession bid was motivated by
discriminatory intent and would impede JBOE’s ongoing efforts to desegregate its
schools. Despite making these factual findings, the District Court granted
Gardendale’s motion in part, permitting it to run an elementary-only school system
within its municipal boundaries.
Plaintiffs appealed, arguing that both Wright v. Council o f Emporia, 407
U.S. 451 (1972), and the Fourteenth Amendment forbade the District Court from
selecting its chosen remedy. Specifically, Plaintiffs argued that: a) where, as here,
a district court finds that a municipal secession would impede the desegregation
efforts of the county school district, Wright compels the rejection of the municipal
district’s motion to secede; and 2) where, as here, a district court finds that a
municipal district’s secession efforts were motivated by a discriminatory intent, the
secession may not be permitted. Defendant-Intervenor and Cross-Appellant
Gardendale City Board of Education (GBOE or Gardendale) does not dispute
either argument in its Principal and Response Brief, and cannot do so now. See
1
Fed. R. App. P. 28.1(c)(2) & (c)(4) (cross-appellee’s reply must be limited to the
issues raised by the cross-appeal).
Rather than dispute Plaintiffs’ arguments, Gardendale attempts to preempt
them. Gardendale maintains that the District Court’s holdings as to Gardendale’s
discriminatory purpose in seceding, and the negative effect that secession would
have on desegregation in Jefferson County, were predicated on clear errors of fact
and misapplications of the law. These arguments reflect Gardendale’s
mischaracterizations of the District Court’s opinion, and its failure to acknowledge
the evidence before that court. And, because both of the District Court’s rulings
provided independent bases for denying Gardendale the relief it seeks, Gardendale
cannot prevail on appeal unless it proves that both findings were error. This it
cannot do.
First, the District Court correctly ruled that Gardendale’s efforts to secede
from JBOE’s schools were motivated by discriminatory purpose, and therefore
violated the Fourteenth Amendment. The historical background of Gardendale’s
secession, its predictable demographic consequences, the sequence of events
leading to secession, the statements of decisionmakers responsible for secession,
and the procedural and substantive irregularities in the decisionmaking process all
supported the District Court’s conclusion: that Gardendale sought to secede, in
part, because it wished to remove Black children from its schools. Gardendale
2
contends that the District Court’s factual findings are clearly erroneous and that the
Court mistakenly based its ruling on the belief that no state action was required for
a Fourteenth Amendment violation. These contentions fail because they are
premised on Gardendale’s: (a) ignoring or disregarding evidence that it finds
inconvenient, and (b) presenting a characterization of the District Court’s opinion
that is foreclosed by the plain language of the opinion that it purports to describe.
Second, the District Court correctly ruled that Gardendale failed to satisfy
the heavy burden imposed upon it by Wright. The court recognized that this case
is governed by Wright, which has never been questioned or overruled and which
provides the operative test for detennining when a municipal school district may
secede from a parent district that is operating under a desegregation order. The
court then considered abundant evidence that Gardendale could not satisfy Wright
because it could not prove that its secession would not impede the desegregation of
Jefferson County’s schools—a process that had been repeatedly waylaid by school
secessions like the one proposed in this case.
In response, Gardendale argues that: 1) Wright does not apply to the factual
circumstances at issue here; 2) Wright is irrelevant because Jefferson County’s
segregated school system was completely dismantled by 1976; and 3) the District
Court clearly erred in analyzing the effect of Gardendale’s secession on
desegregation efforts in Jefferson County. Gardendale’s contentions are
3
unavailing. Its first argument is refuted by the plain language of Wright and by
every other binding school secession case from this Circuit. Those decisions
unequivocally establish that when, as here, a splinter district attempts to secede
from its parent, the splinter district bears the burden of establishing that its
secession will not impede desegregation efforts in the parent.
Gardendale’s second argument attempts to exploit a long-resolved conflict in
the usage of the terms “unitary” and “unitary status” in older school desegregation
cases such as the 1976 Fifth Circuit opinion in this case. The 1976 decision did not
use the term “unitary” in the sense that it is used today—that is, to free the school
district from federal supervision and from its governing desegregation order. That
conclusion is made plain by the resolution of the 1976 appeal, which did not
release Jefferson County from its desegregation order, and from two subsequent
Eleventh Circuit opinions, which stated that no court has ever ruled Jefferson
County to be unitary.
Finally, Gardendale’s third argument is refuted by the ample evidence
supporting the District Court’s finding that Gardendale’s secession would impede
desegregation efforts in Jefferson County. As the District Court found, previous
municipal separations have seriously impeded Jefferson County’s ability to meet
its desegregation obligations by changing its demographics, siphoning off its tax
base, taking its schools, and leaving Jefferson County’s Black students in an
4
increasingly Black and underfunded school district. Gardendale has presented no
evidence that this eminently predictable chain of consequences would not recur
here. On the contrary, the evidence shows that Gardendale’s secession would
impede Jefferson County from complying with its desegregation obligations with
respect to both student assignments and facilities.
I. The District Court Correctly Ruled that Gardendale’s Secession Was
Motivated by Intentional Discrimination.
As the District Court’s opinion detailed at length, Gardendale’s secession
violated the Fourteenth Amendment because it was motivated, in part, by a desire
to maintain the predominantly-white character of its public schools. See Doc. 1141
at 138, 151.1 On appeal, Gardendale disputes this ruling, arguing that: 1) the
District Court’s findings of race-based intent were clearly erroneous, see
Gardendale Br. at 24-32; 2) the District Court “ignor[ed]” the need to find state
action as part of its Fourteenth Amendment analysis, see id. at 18-22; and 3) the
District Court’s ruling was premised on the mistaken belief that the Constitution is
a “therapeutic document” that targets “[w]ords alone,” see id. at 22-24. Each of
these arguments is predicated on Gardendale’s disregarding unfavorable evidence
adduced at trial, distorting the bases of the District Court’s ruling, or some
1 References to the District Court record are by docket entry (“Doc.”)
followed by the relevant number.
5
combination thereof. The District Court’s finding of intentional discrimination
was not clearly erroneous, and Gardendale’s protestations to the contrary are
uniformly meritless.
A. The Evidence Adduced at Trial Overwhelmingly Supported the District
Court’s Factual Finding that Gardendale Sought to Secede from the
Jefferson County School District in Order to Control the Racial
Demographics of Gardendale’s Schools.
The District Court’s ruling that racial discrimination motivated Gardendale
to secede is a factual finding reviewed for clear error. See Pullman-Standard v.
Swint, 456 U.S. 273, 290 (1982). “Under the clearly erroneous standard, [this
Court] must affirm the district court unless review of the entire record leaves [it]
‘with the definite and firm conviction that a mistake has been committed.’” United
States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003) (quoting United States v.
Englehard Corp., 126 F.3d 1302, 1305 (11th Cir. 1997)). Substantial deference
must be accorded “to the factfinder’s credibility determinations, both explicit and
implicit.” United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012) (citation
omitted). But clear error review is not limited to credibility findings. Although
Gardendale implies otherwise, see Gardendale Br. 26, that standard applies “even
when the district court’s findings do not rest on credibility determinations, but are
based instead on physical or documentary evidence or inferences from other facts.”
Anderson v. City o f Bessemer, 470 U.S. 564, 574 (1985). In sum, so “long as the
6
district court’s findings are plausible, [this Court] may not reverse the district court
even if [it] would have decided the case differently.” Englehard, 126 F.3d at 1305
(citation omitted); see also McPhee, 336 F.3d at 1275 (“Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.”) (citation omitted).
Here, viewing the record in its entirety, the evidence is overwhelming that
race motivated Gardendale’s secession efforts. At a minimum, that is a
permissible view of the evidence. Consequently, the District Court’s factual
findings are not clearly erroneous.
In arguing to the contrary, Gardendale omits large swaths of evidence,
analyzes each piece of circumstantial evidence in isolation and out of context, and
denies that evidence may be probative of racial intent unless a speaker explicitly
declares as much. But Gardendale cannot demonstrate clear error by ignoring
relevant evidence or the plausible inferences to be drawn from it. Nor does a
finding of intentional discrimination require express admissions by state actors that
their conduct was racially motivated. Because “discrimination is rarely admitted,”
Mhany Mgmt., Inc. v. County o f Nassau, 819 F.3d 581, 610 (2d Cir. 2016),
discriminatory intent is usually proven by reliance on “the cumulative weight of
circumstantial evidence.” Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).
As the Supreme Court has instructed, “[determining whether invidious
7
discriminatory purpose was a motivating factor demands a sensitive inquiry into
such circumstantial and direct evidence of intent as may be available.” Village o f
Arlington Heights v. Metro. Hons. Dev. Corp., 429 U.S. 252, 266 (1977). Here,
that sensitive inquiry shows that the District Court did not clearly err in finding
intentional discrimination.
1. The History o f Municipal Secessions
To start, the history of municipal secessions is highly probative of
Gardendale’s intent. See Arlington Heights, 429 U.S. at 267 (noting relevance of
the “historical background of the decision” in analyzing discriminatory purpose).
Gardendale is not the first municipal school district to attempt secession from its
parent district. Following the Supreme Court’s decision in Brown, municipal
secession was a popular gambit among majority-white towns seeking to avoid
increased racial integration in their schools. See, e.g., Wright v. Council o f City o f
Emporia, 407 U.S. 451, 453 & n.3 (1972) (noting that “the problem [of municipal
secessions] has confronted other federal courts . . . on numerous occasions in
recent years” and citing several examples).
As the District Court noted, JBOE was no stranger to this phenomenon. See
Doc. 1141 at 18-22 & n.7, 27-31, 46-47, 65-67. The overwhelmingly-white
municipality of Mountain Brook seceded from Jefferson County shortly after
Brown. Doc. 1141 at 19 n.7; Doc. 1126 at 28. After the Fifth Circuit required
8
Jefferson County to undertake meaningful integration efforts in 1969, four
majority-white municipalities sought to secede, and three were successful. Id. at
18-22. The fourth municipality was dissolved by the District Court because it
refused to allow Black students to attend its schools. See Stout v. Jefferson Cty.
Bd. ofEduc., 466 F.2d 1213 (5th Cir. 1972) (“Stout IF). As Jefferson County has
become an increasingly diverse school district, three more majority-white towns
have seceded. See Doc. 1141 at 46-47, 65-67. In contrast, not a single majority- or
plurality-Black municipality has seceded from Jefferson County in the six decades
after Brown. Gardendale ignores this history.
2. The Predictable Racial Impact
Second, the predictable demographic effects of secession—which likewise
go unmentioned in Gardendale’s brief—support the District Court’s finding that
Gardendale’s secession efforts were motivated by race. See Arlington Heights, 429
U.S. at 266 (explaining that the “impact of the official action whether it ‘bears
more heavily on one race than another,’ may provide an important starting point”
in analyzing discriminatory purpose) (internal citation and quotation omitted).
As the District Court explained, because Gardendale is part of the county
school district, and thus, subject to the desegregation order in this case, its schools
have more Black students than they would absent the order. See Doc. 1141 at 139-
40, 142. Pursuant to that desegregation order, students from the predominantly-
9
Black communities of North Smithfield Manor and Greenleaf Heights (“North
Smithfield”) attend Gardendale public schools, see id. at 76, and JBOE buses racial
desegregation transfer students from majority-Black schools to Gardendale
schools, see id. at 142. If Gardendale’s secession bid were successful, the natural
and probable consequence of that effort would be the same result obtained by its
predecessors in secession like Mountain Brook, Vestavia Heights, and Trussville: a
whiter school system with reduced susceptibility to demographic changes in the
county. Indeed, while the JBOE schools have experienced significant
demographic changes since 1990, the majority-white municipalities that have
seceded from the county school district have been largely impervious to these
demographic changes. See, e.g., id. at 66, 95 n.44, 166.
3. The Unmistakable Racial Motive Underlying the Secession Campaign and
Adopted by the City o f Gardendale
Third, “the specific sequence of events leading up [to] the challenged
decision,” and the “legislative or administrative history” of Gardendale’s secession
provide powerful evidence of discriminatory intent. Arlington Heights, 429 U.S. at
267, 268. The organizers of the campaign that resulted in Gardendale’s secession
repeatedly broadcast their intentions to halt white flight and create a school district
with fewer Black students. Gardendale tries to dismiss this evidence by describing
those organizers as “private citizens” and “grassroots organizers,” Gardendale Br.
10
at 24, 25, who had no connection to the official actions taken by the City of
Gardendale. But that description is untenable, and it ignores the sequence of
events that resulted in Gardendale’s secession.
To secede, the organizers first had to convince the Gardendale City Council
to impose a 5-mill tax to fund the aspiring school system. See Doc. 1141 at 93-94.
Thus, the organizers’ motives are directly relevant to the motives of Gardendale as
a city. Then, it was the organizers who spearheaded the campaign that led their
fellow citizens to approve a second new tax for the school system. Doc. 1141 at
94-97, Doc. 1131-41 at 13-14. And, finally, the organizers were themselves
appointed to Gardendale’s Board of Education and to a separate board appointed to
advise the GBOE. Far from being the private citizens posited by Gardendale’s
counsel on this appeal, the separation organizers were themselves state actors who
were ultimately responsible for Gardendale’s secession. As the District Court
observed, the organizers successfully “translate[d] their grassroots effort[s] into
official action.” Doc. 1141 at 143.
Gardendale’s secession effort began as the “brainchild” of David Salters and
Chris Lucas. See Doc. 1124 at 186; Doc. 1155 at 187. Along with two other
“core” organizers, Timothy Bagwell and Chris Segroves, they created an advocacy
group, FOCUS Gardendale. See Doc. 1131-41 at 13-14. In order to obtain the
funding necessary for a new municipal school system, the organizers needed to
11
convince their fellow citizens in Gardendale to approve a new tax. While
campaigning in favor of such a tax, the organizers repeatedly evidenced their racial
motives.
For example, at a public meeting held to promote the secession, Salters told
80 attendees: “It likely will not turn out well for Gardendale if we don’t do
this . . . . We don’t want to become what [Center Point] has.” Doc. 1131-43. As
the District Court’s opinion made clear, what Center Point has “become” is Black.
See Doc. 1141 (“Center Point’s public schools which formerly were almost
entirely white have become almost entirely black.”). On another occasion, Salters
responded on the Gardendale City Schools Facebook page to an individual who
asked, “what are specific, factual issues/problems” the secession would address.
Doc. 1132-2 at 185, Sept. 15, 2012, 6:50 p.m. Salters replied, inter alia, “We are
using buses to transport non-residents into our schools (without additional funding)
from as far away as Center Point (there’s your redistribution of wealth).” Id. at
7:12 p.m. He added, “A look around at our community sporting events, our
churches are great snapshots of our community. A look into our schools, and
you’ll see something totally different.” Id. The Gardendale “community” is 8.6%
Black; the Gardendale schools are 25.4% Black. See Doc. 1141 at 74; Doc. 1132-2
1 2
at 185, Sept. 15, 2012, 7:12 p.m. To Salters, this disparity was an
“issue[]/problem[]” that the secession would address.
Chris Lucas, Salters’ fellow organizer, similarly made clear that he wanted
the Gardendale municipal school district to include the predominantly-white Mt.
Olive community and, in contrast, tried to assure community members that the new
district would not “be required to bring in minorities from outside of the municipal
boundaries.” -See Doc. 1131-38 at 11; Doc. 1132-2 at 167, Oct. 2, 2012, 10:53
p.m. Lucas secured the support of State Senator Scott Beason—who had
previously referred to African Americans as “aborigines,” Doc. 1128 at 1270-71;
Doc. 1141 at 93-94—and had Beason draft legislation to annex Mt. Olive into the
City of Gardendale. Doc. 1141 at 93.
Bagwell, another key organizer, stated that the “benefits to [the secession]
proposal" included “better control over the geographic composition of the student
body." Id. at 181, Sept. 12, 2012, 3:03 p.m. During his deposition, Bagwell also
made clear that he hoped the proposal would stop white flight because “a lot of
[Gardendale] folks [we]re moving . . . to Trussville,” “Vestavia, Hoover, and
Mountain Brook.” Doc. 1131-44 at 13.
As part of its campaign to convince Gardendale residents to vote in favor of
a tax needed for secession, FOCUS Gardendale also created the pro-secession
advertisement with the white elementary school-age girl standing under a banner
13
that read, “Which path will Gardendale choose?” See Doc. 1096-2 at 2; Doc. 1141
at 94-95. The top of the advertisement then included a list of cities that had not
created their own school district and whose schools had become markedly more
Black, while the bottom presented a list of cities that had created their own school
districts and remained predominantly white. See id. As the District Court found,
this advertisement clearly conveyed the racial motive underlying Gardendale’s
secession effort. Doc. 1141 at 177.
Gardendale, however, insists that “[i]t was clear error for the court to infer
racial animus from that document because none is apparent on its face.”
Gardendale Br. at 26. According to Gardendale, “[t]he district court simply
consulted a census for the cities listed and inferred a racial message” without
“explaining] why statistics in a census allowed it to infer racial intent in the hearts
of the flyer’s authors.” Id. at 26-27 (citing Doc. 1141 at 94 n.43, 177). Those
assertions are belied by the very pages Gardendale cites.
In fact, the District Court clearly explained why it inferred a racial message.
Citing testimony from one of the private plaintiffs, the District Court explained that
the cities listed at the top of the flyer had significant Black populations. See Doc.
1141 at 94-95. In other words, the sole thread that ties the list of “bad” places that
“chose NOT to form and support their own school system,” see Doc. 1096-2 at 2,
is that their Black population had increased. Doc. 1141 at 94-95 n.43. Thus, as
14
one of the private plaintiffs testified to, the flyer made a fear-based appeal for the
exclusion of Black students. See Doc. 1141 at 95; see also Doc. 1128 at 49 (“[I]t
[h]as an undertone of racism . . . . [T]his is saying if you don’t want . . . the
undesirables and the problem children, you best be forming your own [school]
system.”). Finally, the District Court also explained that “[a]ny arguable
ambiguity in the flyer is resolved by blatant public statements from separation
organizers that ‘we don’t want to become’ what Center Point has become, and we
need separation to provide ‘better control of the geographic composition of the
student body.’” Doc. 1141 at 177.
Simply put, the language of the FOCUS Gardendale advertisement, and the
statements of the secession organizers, “sen[t] a clear message and carr[ied] the
distinct tone of racial motivations and implications.” Smith v. Fairview Ridges
Hosp., 625 F.3d 1076, 1085 (8th Cir. 2010) (quotation omitted). That the
advertisement used code words and symbols rather than referring expressly to race
is irrelevant. See Mhany Mgmt., 819 F.3d at 610 (affirming “the district court’s
conclusion that citizen opposition to [a zoning decision] utilized code words to
communicate their race-based animus to [city] officials”).
At the conclusion of this campaign, Gardendale residents voted to approve
the tax and fund the secession. Doc. 1141 at 97. For this reason alone, the
statements of the FOCUS Gardendale organizers during the campaign, and the
15
advertisement they disseminated in support of the tax necessary for secession, are
probative of the City of Gardendale’s motives. See Washington v. Seattle Sch.
Dist. No. 1, 458 U.S. 457, 471 (1982) (considering statements made by initiative
sponsors in finding successful referendum was motivated by a racially
discriminatory purpose). Indeed, these statements are a window into the motives
of the community in voting for the tax—a fact that is further underscored by the
various Facebook posts on the Gardendale City Schools’ page that expressed
similar sentiments. See Doc. 1141 at 82-83, 88 n.41, 138-39, 141, 175.
While FOCUS Gardendale was rallying public support for the tax
referendum, the City Council voted for a separate five-mill tax needed to fund the
new schools. The racially-charged atmosphere surrounding the secession
campaign is, in and of itself, probative of the City CounciFs motivation in taking
those actions, especially given that Gardendale is a small community of under
14,000 residents. See Young Apartments, Inc. v. Town o f Jupiter, 529 F.3d 1027,
1044 (11th Cir. 2008) (holding that evidence of citizen opposition to the presence
of Hispanic immigrants, voiced at town council meetings and elsewhere, provided
an adequate basis for plaintiff s claim that a town adopted an overcrowding
ordinance to reduce the amount of housing available to “Hispanic immigrant
workers,” in violation of the Fourteenth Amendment); McMillan v. Escambia
16
County, 638 F.2d 1239, 1247 (5th Cir. 1981). But, here, the link between the
separation organizers’ intent and that of the city council is much more direct.
In fact, FOCUS Gardendale members met with every single member of the
city council to convince them to vote in favor of the tax. Doc. 1141 at 93. And
Lucas explained his role in convincing the mayor and city council members to
support his secession efforts as follows: “Basically, me and David [Salters] put the
mayor and the council in a head lock until they came to their own conclusions that
the school system had to happen. . .. Strong arm tact is what’s required.” Doc.
1124 at 212.
Ultimately, the organizers would be able to effectuate their goals more
directly still. In April 2014, the Gardendale City Council selected five members of
the Board of Education—all of whom were white—and then selected five members
for an advisory board to the school board. Doc. 1141 at 97-100 n.50. Consistent
with the organizers’ influence over the city council in the secession process, the
council chose Lucas and Segroves for the Board of Education, and Salters and
Bagwell for the advisory board. See Doc. 1124 at 170, 187; Doc. 1131-44 at 23;
Doc. 1131-35 at 5. The newly constituted GBOE then proceeded to launch
Gardendale’s separation efforts. Doc. 1141 at 100.
In sum, Gardendale simply ignores the record when it claims that “[w]hat
motivated the grassroots organizers does not bespeak the motivations of the
17
Gardendale Board or the city as a whole in seeking to separate,” and that the lower
court simply “impute[d] to Gardendale the conduct of private persons from before
there was a Board.’ Gardendale Br. at 25. Here, the grassroots organizers were
not private citizens whose motivations can be separated from those of the official
decisionmakers. Those organizers convinced their fellow citizens to approve the
referendum needed to secede; they convinced the City Council both to take the
measures necessary to secede and to appoint them to the GBOE and advisory
board; then, they served on the Board that took the final steps in Gardendale’s
secession effort. Under these circumstances, the motives of the secession
organizers are highly probative of the motives of Gardendale as a whole.
4. Procedural and Substantive Departures
Finally, at every turn, GBOE’s actions comported with the organizers’ stated
goals and sought to evade the 1971 desegregation decree in this case. GBOE’s
procedural and substantive departures from legal requirements—and, in particular,
GBOE’s actions with respect the majority-Black North Smithfield community—
confirm that Gardendale’s secession was motivated by discriminatory intent.
At a February 2014 status hearing that preceded Gardendale’s formal
intervention in this case, “[t]hen-counsel for Gardendale acknowledged that
Gardendale understood that ‘every aspect of its operation would have to be
submitted to the court for review.’” Doc. 1141 at 106. A few days later, the
18
Alabama Department of Education sent Gardendale a letter regarding the
Department’s adjudication of certain disputed issues between Gardendale and
Jefferson County pertaining to the proposed separation. .See Doc. 1002-5. That
letter also reminded Gardendale that it needed to submit its plans to the District
Court for review: “This decision is subject to the United States District Court’s
jurisdiction in Stout v. Bd. ofEduc. . . . That court has the jurisdiction and
authority to review and/or modify this office’s decision to ensure compliance with
federal desegregation laws and the orders of that court.” See id. at 3.
Having received both admonitions in a short span, Gardendale immediately
attempted an end run around the desegregation order and the federal courts. See
Doc. 1003. Gardendale filed a state court action requesting that the Circuit Court
of Jefferson County “relinquish control of the public schools located in the
Gardendale municipal school district to the Gardendale City Board of Education.”
Id. at 2. Gardendale’s state court complaint made no mention of the pending
desegregation order in this case and, though it discussed the February letter from
the Alabama Department of Education, it omitted the provision that mentioned the
necessity of federal court review. Id. at 3. This “[d]eparture[] from the normal
procedural sequence,” is evidence of discriminatory intent, Arlington Heights, 429
19
U.S. at 267, particularly because it was a blatant effort to circumvent the
integration requirements of the desegregation order.
After GBOE moved to intervene in this case, it continued to pursue litigation
strategies that would minimize the inclusion of Black students in its schools. In
March 2015, Gardendale provided the parties and the court with a proposed
secession plan that would exclude the largest group of African-American students
from outside of Gardendale’s municipal boundaries who attended Gardendale’s
schools: the students from North Smithfield. Doc. 1141 at 108. Gardendale did
not revise this plan until its director of operations reviewed section V(c) the 1971
desegregation order and realized that Gardendale did not have enough live-in
Black students to satisfy that section’s requirement for separation. Doc. 1141 at
148-49. Only then did Gardendale propose a new plan of separation that included
North Smithfield. Id. at 1149. Nobody from GBOE consulted with representatives
from North Smithfield before including them in the secession plan, despite the fact
that the new plan would send every elementary school student in North Smithfield
to a new school.
And, while Gardendale moved the District Court for permission to separate
based on this new plan, it did so without having the Board vote on the plan. See id.
The District Court found that this decision was motivated by the Board’s desire “to
see whether its attorneys could persuade the Court that the 1971 desegregation
20
order does not govern Gardendale’s separation,” which would free the Board to
drop the North Smithfield students from the school district and revert to its prior
separation plan. Id. at 1149-50. Gardendale argues that its failure to make a
binding commitment to include North Smithfield students in Gardendale schools
cannot be used as evidence of its intent to exclude Black students because “[i]f the
court adopts th[e secession] plan, its order will become just as binding on
Gardendale as any resolution passed at a Board meeting . . . .” Gardendale Br. at
28. This argument misses the District Court’s point. If Gardendale’s lawyers
persuaded the courts that it should not be bound by the 1971 desegregation order in
this case, Gardendale would not need the District Court’s approval of its separation
plan.
The Board has taken a similar approach to students who currently attend
Gardendale schools as racial desegregation transfers—the students who Salters
referenced when complaining that Gardendale was “using buses to transport
nonresidents into our schools . . . from as far away as Center Point (there’s your
redistribution of wealth).” Doc. 1141 at 81-82; see also id. at 82, 141 (similar
comments by others on the Gardendale City Schools Facebook page). When
Gardendale’s superintendent, Dr. Patrick Martin, first drafted a series of transfer
policies, the president of the Board singled out the racial desegregation transfer
provision—the only provision that provided for the transfer of out-of-district Black
21
students into Gardendale schools—and commented: “Legal team to review and
confirm its applicability/appropriateness for GBOE.” Id. at 144. Various draft
provisions followed, each including “conditions [that] [we]re designed to minimize
or eliminate racial desegregation transfers.” Id.
In addition, despite the legal requirement that Gardendale establish a
“precise policy position[]” on this subject before trial, GBOE never adopted any
transfer policy, and the superintendent could not identify what position the Board
would ultimately be willing to implement. Id. at 145. As the District Court
observed, this decision “dovetails with the separation organizers’ expressed
interest in eliminating from the schools within Gardendale’s municipal limits
students who are bussed into Gardendale from other areas of Jefferson County.”
Id.
In sum, the historical background of Gardendale’s secession, its predictable
demographic consequences, the sequence of events leading to secession, the
statements of the decisionmakers responsible for secession, and the procedural and
substantive irregularities from the ordinary decisionmaking process all support the
District Court’s finding of discriminatory purpose. Indeed the District Court’s
findings need only represent a “permissible view[] of the evidence,” which means
2 2
they were not clearly erroneous and cannot be disturbed on appeal. McPhee, 336
F.3d at 1275.
B. Gardendale Attempts to Manufacture Legal Error by
Mischaracterizing the District Court’s Opinion.
The evidence adduced at trial provides ample—indeed, overwhelming—
support for the District Court’s discriminatory intent finding. Faced with that
record, Gardendale attempts to create legal error. Specifically, Gardendale argues
that the District Court erred because it: a) based its discriminatory purpose finding
on the erroneous legal belief that “[wjords alone . . . violate the Constitution” and
that “Brown v. Board o f Education stands for the rule that comments which make
black (or other) students feel inferior violate the Equal Protection Clause,”
Gardendale Br. at 23; and b) relied on Facebook comments by private individuals,
the FOCUS Gardendale flyer, and the Board’s failure to disavow the Facebook
comments in lieu of the requisite state action, see id. at 19-20. Gardendale’s
argument fails because the District Court did not do what Gardendale claims.
Gardendale’s first argument—that the District Court misinterpreted Brown
as holding that “words alone” violate the Equal Protection Clause if they “make
black . . . students feel inferior,” see id. at 23—manages to invert what the District
Court actually said. Indeed, the three pages of the District Court’s opinion cited by
Gardendale conclusively refute Gardendale’s characterization. Gardendale’s first
23
citation for this assertion is to page 3 of the District Court’s opinion. See
Gardendale Br. at 23. But, far from saying that words alone violate the Equal
Protection Clause, the District Court actually explained: “The Supreme Court’s
holding in Brown is simple and unaffected by the passage of time: when black
public school students are treated as if they are inferior to white students, and that
treatment is institutionalized by state or municipal action, the resulting stigma
unconstitutionally assails the integrity of black students.” Doc. 1141 at 3
(emphasis added). Gardendale’s second citation fares no better, as the District
Court there stated: “the Supreme Court held that separating black students ‘from
others of similar age and qualifications solely because of their race generates a
feeling of inferiority as to their status in the community’ . . . [and] ‘[t]he impact is
greater when it has the sanction o f the law . . .’” Id. at 8 (quoting Brown v. Bd. o f
Educ., 347 U.S. 483, 494 (1954)) (emphases added). Similarly, Gardendale’s third
citation is to a page where the District Court explained: “In Brown /, the Supreme
Court explained that official action that perpetuates racial stigma (i.e., the message
that black students are inferior to white students) violates the Fourteenth
Amendment and warrants an equitable remedy.” See id. at 180 (emphasis added).
24
In sum, Gardendale’s argument fails because it is predicated on Gardendale’s
assertion that the District Court said the opposite of what the court said.
Gardendale also errs by claiming that the District Court “ignor[ed] the[ state
action] limits on the reach of the Equal Protection Clause.” Gardendale Br. at 19.
Under this theory, the District Court held Gardendale liable for violating the
Fourteenth Amendment solely because of Facebook posts by private individuals, a
flyer created by private individuals, and the Board’s failure to disavow the
Facebook comments. See id. at 19-20. This claim misrepresents the District
Court’s opinion and is entirely incorrect.
First, as is clear from the examples above, the District Court repeatedly
emphasized that it understood the relevance of state/official/municipal action and
referenced it throughout the opinion. See also Doc. 1141 at 3, 27, 37 & n.15, 38,
55, 84, 143, 145, 180. Further, the court took great pains to set out the state action
involved in the separation. See, e.g., id. at 84-85, 96-109, 112-27, 135-37, 143-51.
And as the District Court made clear, the Fourteenth Amendment violation
occurred here because “the organizers . . . translate[d] their grassroots effort into
official action.” Id. at 143. The “official action” was “starting] a splinter
district,” id. at 84, and attempting to eliminate out-of-district Black schoolchildren
from that splinter district. See id. at 143-51. As discussed in the preceding section,
the record clearly supports that finding: the organizers convinced their fellow
25
citizens to approve the tax needed for secession, convinced the Gardendale City
Council to approve an additional tax and take other necessary steps for secession,
and then were appointed by the city council to the Gardendale Board of Education
(and an advisory board) that attempted to secede.
Second, the District Court did not confuse the Facebook/flyer evidence cited
by Gardendale for “state action.” To the contrary, the Court relied on that
evidence to establish the intent behind the state action—to show that the secession
efforts and GBOE’s attempts to exclude Black school children from the
Gardendale school system (i.e. the “official action” required by the Fourteenth
Amendment) were motivated by race (i.e. the “intent” required by the Fourteenth
Amendment). See Doc. 1141 at 138-43.2
2 Gardendale’s “state action” argument is also predicated on another
interpretive error. Gardendale repeatedly bases its claim that the District Court did
not consider state action on citations to the Court’s discussion of Wright's third
prong. See Doc. 1141 at 174-80; Gardendale Br. at 19, 20, 21, 23. That section of
the opinion, however, does not address the independent Fourteenth Amendment
violation resulting from Gardendale’s discriminatory purpose in seceding. See
Doc. 1141 at 174-80. It addresses the legally separate question of whether the
timing of and message conveyed by the separation weigh in favor of granting the
motion to secede—an inquiry that is mandated by Wright, see 407 U.S. at 465-66.
26
In sum, Gardendale’s efforts to inject legal error into the District Court’s
discriminatory-purpose finding are predicated on Gardendale’s flagrant
misrepresentation of the District Court’s opinion.
C. The District Court Did Not Err in Admitting the Facebook Posts
Documenting Interactions Between Separation Organizers and
Community Members.
GBOE’s final challenge to the District Court’s discriminatory purpose
finding is based, once again, on an incorrect premise. GBOE essentially contends
that the Facebook posts—which were made on a public Facebook page created and
managed by separation organizers to support the separation effort—were
inadmissible because there was no evidence confirming the identity of the authors
of certain posts. See Gardendale Br. at 29-30. But, there was independent
evidence confirming that the separation organizers drafted the relevant posts
attributed to them. And, as the District Court explained, see Doc. 1141 at 83 n.38,
the specific identity of the authors of the remaining posts is irrelevant. Those posts
are significant because they reflect online conversations between individuals who
posted on the page (many of whom were assuredly community members) and the
separation organizers. The District Court correctly admitted the Facebook posts
27
into evidence because they were properly authenticated for that purpose, and
relevant as to the separation organizers’ intent.
Gardendale concedes that Facebook posts by Chris Lucas, a secession
organizer who became a GBOE board member, were properly authenticated.
Gardendale Br. at 29. Gardendale asserts that “the remaining posts that the court
relied on throughout the Opinion appear to have been made by persons . . . as to
whom Plaintiffs did not offer admissible foundational evidence,” id., but that is
incorrect. Timothy Bagwell, another core separation organizer who was later
appointed to the GBOE advisory board, admitted that he was an administrator of
the page and had been an active poster. Doc. 1131-44 at 14. Bagwell specifically
admitted to posting that he wanted a separate school system for “better control over
geographic composition of the student body,” id. at 11—a post highlighted by the
District Court. Doc. 1141 at 139. Bagwell’s deposition, which authenticates his
postings, was admitted into evidence at trial. See Doc. 1131-44 at 11.
Like Bagwell, secession organizer Dave Salters also admitted that he posted
on the Facebook page, and used it as a way of talking about Gardendale’s
separation. Doc. 1131-41 at 16. Not coincidentally, the David Salters who posted
on the Facebook page run by David Salters’ friends and the David Salters who
advocated for the school secession online were both staunch secession supporters
who made arguments about Center Point and the need to avoid demographic
28
change. See, e.g., Doc. 1131-41 at 20 & Ex. 2; see supra at 12-13. Plainly, the
David Salters who posted on Facebook was—as David Salters admitted—David
Salters.
The evidence also indisputably established that the secession organizers not
only posted on the Facebook page, they created and maintained that page. See
Doc. 1131-44 at 6; Doc. 1131-41 at 5; Doc. 1135 at 5; Doc. 1141, at 80. Bagwell
and Fucas had the power to delete posts, approve or reject individuals who wanted
to join the page, delete individuals from the page, and change privacy settings on
the page. Doc. 1131-44 at 14. At times, the administrators exercised their power
to delete posts or individuals from the page. Doc. 1131-44 at 15; Doc. 1141 at 83
n.38. Thus, the posts that the District Court examined were posts that the
separation organizers, who ran the Facebook site in an effort to encourage support
for secession, chose not to delete or rebut. That, in and of itself, is relevant to
understanding the motivations of the secession organizers.
The specific identities of the authors of the remaining Facebook posts are
not relevant to Plaintiffs’ claims. In other words, the Facebook posts are not
helpful to the case because “Misti Boackle” or any other particular, non-organizer
participant made a Facebook post; the posts are relevant because the online
conversations between separation organizers, who ultimately became GBOE
members or advisory board members, and other individuals who posted on the
29
page provide evidence of the motivations behind the separation. That is
particularly true because it can be inferred that most of the individuals who posted
on the Facebook page were Gardendale residents. Notably, the Facebook page
required each member to be approved by the Facebook page administrators (i.e.,
the separation organizers), and, given that this was an intensely local issue,
Gardendale residents would naturally be the most likely to join such a page.
In light of the foregoing, it is clear that Gardendale’s evidentiary objections
to the Facebook posts are unavailing. Contrary to Gardendale’s assertions, the
posts were relevant. They reflect the organizers’ motives for secession, and their
efforts to drum up support within the Gardendale community in support of
secession.
As for authenticity, GBOE does not even dispute that the admitted Facebook
posts are the actual contents of the Facebook page. In other words, GBOE does
not dispute that Plaintiffs “produce[d] evidence sufficient to support a finding that
the item is what the proponent claims it is.” Fed. R. Evid. 901(a). Given their role
as administrators and participants on the Facebook page, the organizers’ own
testimony provides “competent evidence” that the Facebook posts are what
Plaintiffs-Appellants claim them to be: online conversations between community
members and separation organizers expressing community sentiments on the
proposed separation. That is all that is required for the District Court’s
30
admissibility determination to be affirmed on appeal. See United States v.
Siddiqid, 235 F.3d 1318, 1322 (11th Cir. 2000) (a district court’s authenticity
ruling “should not be disturbed on appeal absent a showing that there is no
competent evidence in the record to support it”) (citation omitted); see also United
States v. Lanzon, 639 F.3d 1293, 1301 (11th Cir. 2011) (authenticating transcripts
of online chats based on testimony of witness that he participated in the chats and
that chat transcripts were accurate copies of the conversations).
GBOE inaptly relies on United States v. Vayner, 769 F.3d 125 (2d Cir.
2014), to argue that Plaintiffs-Appellants must demonstrate that the stated authors
of all of the Facebook posts were the true authors. In Vayner, the court held that
the authentication was insufficient because the proponent of social media evidence
failed to demonstrate that the page belonged to the defendant; but, in that case, the
“profile page was helpful to the . . . case only if it belonged to [the defendant].” Id.
at 131-132 (emphasis added). In other words, in Vayner, individual identity was
important to the purpose for which the webpage was admitted. As discussed, this
case is different. Here, the individual identities of the non-organizer authors of the
Facebook posts are irrelevant.
GBOE was “free to challenge the reliability of the [Facebook posts], to
minimize [their] importance, or to argue alternative interpretations of [their]
meaning, but these and similar other challenges go to the weight of the evidence—
31
not to its admissibility.” United States v. Tin Yat Chin, 371 F.3d 31,38 (2d Cir.
2004) (emphasis in original). The District Court’s evidentiary rulings should be
affirmed.
II. The District Court Correctly Found that Gardendale Did Not Meet
Its Burden to Demonstrate that Its Secession Would Not Impede
Desegregation in Jefferson County.
Even if Gardendale’s secession had not been motivated by intentional
discrimination (which it was), that secession would be invalid under longstanding
Supreme Court and Eleventh Circuit precedent. Pursuant to Wright, “a new school
district may not be created where its effect would be to impede the process of
dismantling a dual system.” 407 U.S. at 470. This Court followed suit by holding
in Stout v. Jefferson County o f Board o f Education, that “where the formulation of
splinter school districts . . . have the effect of thwarting the implementation of a
unitary school system, the district court may no t. . . recognize their creation.” 448
F.2d 403, 404 (5th Cir. 1971) (“Stout I ”). Similarly, in Ross v. Houston
Independent School District, this Court held:
The division of a school district operating under a desegregation order
can be permitted only if the formation of the new district will not
impede the dismantling of the dual school system in the old district. In
32
such a situation, the proponents of the new district must bear a heavy
burden to show the lack of deleterious effects on desegregation.
583 F.2d 712, 714 (5th Cir. 1978) (“Ross IF) (internal citations omitted).
Gardendale seeks to minimize its heavy burden by contending that under the
Wright line of cases, “[t]he test is whether separation would have a ‘substantial
adverse effect on desegregation of the county school district.’” Gardendale Br. at
39 (quoting Lee v. Macon Cty. Bd. ofEduc., 448 F.2d 746, 752 (5th Cir. 1971)
(emphasis added). Gardendale’s inclusion of the word “substantial” is erroneous.
Although Gardendale accurately quotes the decision in Lee, that decision has been
superseded by Wright, Stout I, Stout II, Ross v. Houston Independent School
District, 559 F.2d 937, 943 (5th Cir. 1977) (“Ross I ”), and Ross II. Each of those
cases eschews the modifier “substantial" and focuses on the question whether the
secession will have an adverse effect on desegregation. See Wright, 407 U.S. at
470; Stout I, 448 F.2d at 404; Stout II, 466 F.2d at 1214; Ross I, 559 F.2d at 943;
Ross II, 583 F.2d at 714. Indeed, Wright, which was decided shortly after Lee,
specifically quoted Lee's “substantial adverse effect” language while discussing
lower court decisions, and then opted for a formulation that did not include the
modifier “substantial.” See Wright, 407 U.S. at 460 (noting that “a proposal must
be judged according to whether it hinders or furthers the process of school
desegregation” and “[i]f the proposal would impede the dismantling of a dual
33
system, then a district court. . . may enjoin it”); id. at 470 (holding that “a new
school district may not be created where its effect would be to impede the process
of dismantling a dual system”).
Gardendale cannot meet its “heavy burden to show the lack of deleterious
effects on desegregation.” Ross II, 583 F.2d at 714 (citation omitted). The District
Court correctly found precisely that, explaining that allowing Gardendale to secede
would impede desegregation in Jefferson County by forcing students to be
transferred from integrated schools to highly-segregated ones, and by causing
Jefferson County to lose a new state-of-the-art high school, which operated as a
desegregation tool, and for which Jefferson County taxpayers had just paid $55
million. The loss of this high school and the money Jefferson County invested in it
would, in turn, limit Jefferson County’s ability to equalize its student facilities and
prevent further white flight.
Unable to meet its burden, Gardendale makes the extraordinary argument
that Wright does not apply because Jefferson County has already achieved unitary
status. That is clearly incorrect. It is beyond question that Jefferson County is
currently subject to a federal desegregation consent order; therefore, the Supreme
Court’s decision in Wright, and this Court’s decisions in Stout I and Ross II,
govern this case. Accordingly, this Court should affirm the District Court’s
finding—supported by ample evidence at trial—that Gardendale did not meet its
34
burden for secession, but reverse the District Court’s ruling, which conflicts with
Wright, Stout I, and Ross II, that Gardendale can nonetheless secede and form its
own school district.
A. Ample Evidence Supports the District Court’s Factual Finding that
Gardendale Did Not Meet Its Burden for Secession Under Supreme
Court Precedent.
Contrary to GBOE’s assertions, the District Court’s factual finding
regarding the adverse impact of Gardendale’s secession from Jefferson County’s
schools is supported by a substantial record of evidence. GBOE improperly
naiTows the evidence to be considered under federal desegregation law and then
inaccurately characterizes the District Court as seeking to advance an amorphous
“diversity” goal. Gardendale Br. at 40-45. Unlike Gardendale, the District Court
properly considered the relevant evidence under established precedent, and
correctly found that allowing Gardendale to secede would undermine
desegregation efforts in Jefferson County.
The standard by which to evaluate school desegregation cases has been
clearly defined by the Supreme Court. In Green v. School Board o f New Kent
County, the Court described six areas of operation that must be free from racial
discrimination before full unitary status can be achieved: (1) student assignment;
(2) faculty assignment; (3) staff assignment; (4) extracurricular activities, (5)
facilities; and (6) transportation. 391 U.S. 430, 435 (1968). A court may also
35
consider other ancillary factors, such as quality of education. See Freeman v. Pitts,
503 U.S. 467, 492 (1992).
To achieve unitary status and be released from court supervision, a school
district must prove that it has: (1) fully and satisfactorily complied in good faith
with the court’s desegregation orders for a reasonable period of time; (2)
eliminated the vestiges of prior de jure segregation to the extent practicable; and
(3) demonstrated a good faith commitment to the whole of the court’s order and to
those provisions of the law and the Constitution that were the predicate for judicial
intervention in the first instance. See Missouri v. Jenkins, 515 U.S. 70, 88-89
(1995); Freeman, 503 U.S. at 491-92, 498; Manning ex rel. Manning v. Sch. Bd. o f
Hillsborough Cty., 244 F.3d 927, 942 (11th Cir. 2001); Lockett v. Bd. o f Educ. o f
Muscogee Cty. Sch. Dist., 111 F.3d 839, 842-43 (11th Cir. 1997). A school district
carries the “heavy burden” of proving that it has eradicated discrimination “root
and branch.” Green, 391 U.S. at 438, 439. “Each instance of a failure or refusal to
fulfill this affirmative duty continues the violation of the Fourteenth Amendment.”
Columbus Bd. o f Educ. v. Penick, 443 U.S. 449, 459 (1979). This longstanding
legal framework is the lens through which this Court and the Supreme Court have
continuously evaluated school districts’ fulfillment of their desegregation
36
obligations, and it was the appropriate standard applied by the District Court in this
case. Doc. 1141 at 152-54, 162-63.
As the District Court explained, permitting Gardendale to secede would
adversely impact Jefferson County’s ability to satisfy its desegregation obligations
with respect to student assignments and facilities. Id. at 162-74. At a minimum,
Gardendale did not present the evidence necessary to satisfy its heavy burden of
showing that its secession would not have a negative effect on desegregation in
Jefferson County.
1. Gardendale Misconstrues the Adverse Impact o f Secession on Student
Assignment.
GBOE inaccurately refers to the District Court’s concerns about student
assignment as “racial balancing,” Gardendale Br. at 40-42, suggesting that the
District Court sought a specific percentage or quota of Black students in particular
schools. To the contrary, the District Court properly conducted the analysis set
forth by the Supreme Court in Green and its progeny to determine whether the
proposed secession would result in Jefferson County students’ transfers from
racially integrated schools to hyper-segregated schools. Doc. 1141 at 163-69.
First, Gardendale inappropriately minimizes any demographic impact to the
shift in Jefferson County district-wide. Gardendale Br. at 43-44. In determining
the desegregation of a school district, courts must look at the school level and
37
cannot calculate the cumulative effect on desegregation by only using “a district-
or county-wide analysis.” United States v. Lowndes Cty. Bd. ofEduc., 878 F.2d
1301, 1305 (11th Cir. 1989). In school separation cases, the court must also
compare the new school district with the parent school system, not just what the
change will be to the demographics of the parent district. Wright, 402 U.S. at 24;
Ross //, 583 F.2d at 714-15 (finding a similar impact on the district-wide
percentages significant because of the significant demographic difference between
the splinter and parent school districts).
And, in any event, prior separations have shown that school secessions
catalyze demographic shifts much larger than the numbers suggested by the
students immediately affected by the secession. For instance, the Leeds and
Trussville separations in the 2000’s directly caused a 3% increase in Jefferson
County’s Black student population and a corresponding 3% decrease in white
student population; however, they helped to spark a 25% drop in the white student
population, and a 20% increase in the Black student population. See Doc. 1141 at
66-67.
With respect to school-level analysis, the District Court expressly found that
“students will move from schools that are somewhat desegregated to schools that
are extremely segregated.” Doc. 1141 at 167. That, in and of itself, means
Gardendale’s secession would interfere with Jefferson County’s desegregation
38
obligations under the first Green factor, irrespective of the racial demographics of
the students affected by such resegregation. See, e.g., Lowndes Cty., 878 F.2d at
1308 (holding that transfer of students, who were virtually all white, from
neighboring counties to majority-white school was constitutionally impermissible);
Elston v. Talladega Cty. Bd. ofEduc., 997 F.2d 1394, 1418 (11th Cir. 1993)
(“[Tjransfers are deemed to increase the duality of a school system when they
increase the racial identifiability of the schools in the system.”).
In evaluating student assignment plans, courts also consider whether “the
burden of desegregation [has been] distributed equitably,” as “the burden may not
be placed on one racial group.” Harris ex rel. Harris v. Crenshaw Cty. Bd. o f
Educ., 968 F.2d 1090, 1097 (11th Cir. 1992). Gardendale asserts that the burdens
here would not disproportionately impact Black students, but it ignores the fact that
most Black middle school students, unlike their white counterparts, would be
moved “to a school where they will be part of a very small minority community or
to a predominantly black middle school.” Doc. 1141 at 168. The schools where
Gardendale says Black students will “swell the ranks” of their minority include a
99.59% white middle school with one Black student (Bagley Junior High) and a
91.39% white middle school (North Jefferson Middle School). Doc. 1141 at 167-
68. These schools also have racially identifiable faculty and staff which have
almost the exact same racial ratios to students. Doc. 1141 at 160-1; Doc. 1106-1,
39
Doc. 1106-2; Doc. 1106-3. Further, Black students who would be transferred to
other schools faced the additional burden of being more likely to have to attend a
new transferee school far from their home. See id. The District Court therefore
correctly found that “the burden of separation falls most heavily on the black
students.” Doc. 1141 at 168.
Finally, Gardendale attempts to minimize the segregative impact of its
secession and previous secessions, deeming them results of “external factors.”
Gardendale Br. at 44-45. But the cause of the resegregation of schools would be
Gardendale’s governmental action, because this Court “cannot tolerate
resegregation of a former dual school system,” GBOE “must demonstrate that [its]
[opening] will not tend to promote such a relapse.” Anderson ex. rel. Anderson v.
Canton Mun. Separate Sch. Dist., 232 F.3d 450, 453 (5th Cir. 2000).
2. Gardendale Misconstrues the Adverse Impact o f the Loss o f Gardendale
High School.
As a Green factor, facilities—includes their siting, comparability, and
construction—are an important consideration in evaluating the desegregation of a
school district. Swann v. Charlotte-Mecklenburg Bd. ofEduc., 402 U.S. 1, 18-19,
21 (1971) (holding that a school board must take corrective action to ensure that it
maintains schools with “like” facilities and “see to it that future school
construction and abandonment are not used and do not serve to perpetuate or re
40
establish the dual system”); NAACP, Jacksonville Branch v. Duval Cty. Sch., 273
F.3d 960, 976 (11th Cir. 2001) (favorably discussing school board’s strategic siting
of new schools in areas favorable to “black student mobility” and “naturally
integrated housing patterns”).
Here, Gardendale incorrectly focuses only on the number and racial
demographics of the students who would be immediately displaced from
Gardendale High School (“GHS”). In contrast, the District Court properly
considered the financial, demographic, and instructional impact of the loss of GHS
on JBOE in determining that it would be inappropriate for GBOE to have exclusive
rights to this $55 million high school—paid with the tax dollars of all Jefferson
County residents.
Specifically, the District Court explained that the loss of GHS would place a
substantial financial burden on JBOE by requiring it “to build a new high school at
a cost of approximately $55 million. That is $55 million that Jefferson County will
not be able to use to fund other facilities or programming.” Doc. 1141 at 171-72.
Those “other facilities or programming,” of course, include additional efforts by
JBOE to comply with its desegregation obligations and achieve unitary status.
Such delay in building needed facilities would be a significant setback for JBOE
41
students who would have to be housed in portables or trailers in the interim. Doc.
1157 at 131-32.
Under Wright and Swann, the District Court also properly considered the
quality and location of GHS compared to its neighboring schools and its role in the
county’s facilities planning. Doc. 1141 at 169. JBOE has plans to consolidate
GHS with Fultondale High School, which would have a desegregative effect. Doc.
1141 at 172; Doc. 1157 at 199. The Gardendale separation would prohibit the
consolidation, thereby impeding on what Jefferson County Superintendent Dr.
Warren Pouncey frames as “the epitome of what desegregation was intended to
do” and as “an excellent opportunity for all children in that part of county to come
together and have a great school setting.” Id. at 174-75. Gardendale’s secession
would significantly advance JBOE’s desegregation because Fultondale High
School—an old and deteriorating “inadequate” facility that is not remotely
comparable to GHS—is one of the remaining facilities in Jefferson County that
previously housed an all-Black school from its de jure segregation era. Doc. 1141
at 69 n.26, 172.
Indeed, the District Court found that GHS was properly being used by JBOE
as a desegregative tool, because of its programming and location. Doc. 1141 at
170-172. GHS “houses a sophisticated career tech program that serves as a magnet
program, attracting students from across the county , which reflects a significant
42
investment of resources. Id. at 70-71, 170. The court rightly found that JBOE
invested in the programs at that facility because of its location and as an incentive
to encourage voluntary participation of students from more segregated schools. As
the District Court noted, this is in line with desegregation efforts endorsed by this
Court. Doc. 1141 at 171 (citing Duval Cty. Sch., 273 F.3d at 976). By contrast,
Gardendale’s secession would take away this important desegregative tool from
Jefferson County. This is supported by the testimony of the superintendent.
Gardendale offers no meaningful response to the District Court’s analysis on this
point.
Finally, it bears noting that Gardendale is wrong in asserting that state law
provides it the absolute right to GHS free of charge. See Gardendale Br. at 47.
Under Alabama state law, newly formed municipal school boards have the
obligation to provide the “same or equivalent facilities” for the county students
who are displaced from a facility that the new municipal system will take over.
Ala. Code § 16-8-20 (1975). The State Superintendent, who would be the final
arbiter of the GBOE’s separation absent federal court supervision and is
responsible for interpreting state education law, see Ala. Code § 16-4-4 (1975),3
3 Pursuant to Alabama law, the State Superintendent must approve the terms
of municipal separations.
43
required Gardendale to pay Jefferson County $8,108,555 for GHS, significantly
less than the $55 million needed to build a comparable facility. Doc. 1001-26.
3. Gardendale Ignored the Cumulative Impact o f Prior Secessions on JBOE’s
Desegregation Efforts.
Another fact properly considered by the District Court, but ignored
altogether by GBOE in its analysis, is the cumulative impact of prior secessions on
JBOE’s efforts to desegregate its school system, which cautions against court
approval of yet another splinter district. As the District Court noted:
The series of municipal separations in Jefferson County has
repeatedly shifted the geographic, demographic, and economic
characteristics of the Jefferson County district, making it difficult for
this Court to find a baseline from which to measure the success of
Jefferson County’s efforts to comply with the desegregation order
and causing Jefferson County to constantly have to recalibrate its
efforts.
Doc. 1141 at 167. The District Court further found that separations and
annexations have distinctly altered the racial composition of Jefferson County’s
student population, resulting in a county student population with fewer white
students. Doc. 1141 at 166. Moreover, the areas annexed by splinter districts
“produce significant tax income, so that the loss of those areas negatively impacts
Jefferson County’s resources.” Id. Undoubtedly, the progressive loss of white
students, coupled with the loss of tax revenue from the parents of those students,
have made it increasingly more difficult for JBOE to fulfill its obligations under
44
the operative federal desegregation order, providing further reason to enjoin
Gardendale s efforts to create another splinter district. Indeed, with respect to
Gardendale s secession specifically, Dr. Pouncey described in great detail how the
loss of facilities, transfer opportunities, and the realignment of resources caused by
Gardendale’s separation would limit the desegregative tools available to Jefferson
County. Doc. 1157 at 155, 171, 186.
4. The Timing and Message o f Gardendale’s Secession
Finally, in the context of secessions, Supreme Court precedent requires
consideration of an additional factor when analyzing the effect of desegregation
efforts on the parent district: the timing of the secession and the message that it
sends to affected Black students. See Wright, 407 U.S. at 465-66. Here, as the
District Court found, “[djuring Gardendale’s separation effort, both words and
deeds have communicated messages of inferiority and exclusion” that “assail the
dignity of black school children.”4 Doc. 1141 at 175, 180. This finding, which
spans an entire subsection of the District Court’s opinion, see Doc. 1141 at 174-80,
4 Gardendale argues that one of these messages conveyed through the
FOCUS Gardendale advertisement, was not actually distributed to North
Smithfield residents, see Gardendale Br. at 9, supra at 19-21; however, this racially
motivated advertisement was actually placed in the local newspaper, the North
Jefferson News. Doc. 1141-1, R (newspaper details are at the top of the
document).
45
stiongly suppoits the District Court’s ultimate ruling that Gardendale’s separation
would impede the desegregation efforts of Jefferson County. But despite the
centrality of this finding to the District Court’s decision, see, e.g., id. at 180 (“The
Court may not turn a blind eye to that message [of inferiority].”), Gardendale fails
to so much as mention it.5 See Gardendale Br. at 39-45. This failure further
confirms that Gardendale’s claims regarding the impact of its secession lack merit.
For the foregoing reasons, the District Court correctly found that
Gardendale’s secession would impede Jefferson County’s efforts to meet its
desegregation obligations. Gardendale certainly did not meet its heavy burden
under Wright and its progeny to establish that there would be no adverse impact.
As such, Gardendale should not have been permitted to secede, even in part, from
Jefferson County. See Plaintiffs’ Opening Br. at 20-24.
B. This Case Is Governed by W righ t and Its Progeny.
Unable to meet its burden under Wright, Stout I, and Ross, Gardendale
spends much of its brief arguing that those precedents are not applicable here,
either because Jefferson County has already achieved unitary status or because
5 Gardendale suggests that the Court’s Supplemental Opinion may have
rejected the factual findings regarding Jefferson County’s separation that pervade
its initial opinion, see Gardendale Br. at 39-40, but no part of the Court’s
supplemental opinion supports that conclusion. See Doc. 1152.
46
those cases should not apply to Gardendale’s secession. But Jefferson County has
not achieved unitary status, and Wright and its progeny set forth the controlling
rule for evaluating secession by splinter districts such as Gardendale.
1. JBOE Remains Subject to the District Court’s Jurisdiction Under an
Operative Desegregation Order.
Federal judicial supervision and control over a school system subject to a
federal desegregation order continue until the school system has been declared to
have achieved unitary status. Freeman, 503 U.S. at 496-97; Lee v. Macon Cty. Bd.
o f Educ., 584 F.2d 78, 81 (5th Cir. 1978); Lee v. Talladega Cty. Bd. ofEduc., 963
F.2d 1426, 1430 (11th Cir. 1992); United States v. Georgia, 171 F.3d 1344, 1347,
1348 (11th Cir. 1999). From 1965 to the present, the District Court for the
Northern District of Alabama has maintained supervision, control, scrutiny, and
surveillance over JBOE, which has never attained a declaration of unitary status.
Nevertheless, Gardendale cites to Stout v. Jefferson County Board o f Education,
537 F.2d 800 (5th Cir. 1976) (“Stout 1976”) for the repeated proposition that JCSS
has been declared unitary. Gardendale Br. at 16, 19, 35, 50. This position is
patently at odds with Supreme Court precedent, decisions of this Court, JBOE’s
47
own understanding of its status under the desegregation order, statements by
Gardendale’s superintendent, and the evidence in the record.
Ignoring the necessary legal context, Gardendale relies on the following use
of the term “unitary” in Stout 1976:
[W]e agree . . . that the former dual school system has been
effectively dismantled and a unitary system substituted here . . . . For
here the district court has found, and indeed the United States does
not seriously dispute, that in Jefferson County the uprooting of which
the Court spoke has been done and a unitary system is operating... .
Nevertheless, partly in view of the presence of [the three one-race
schools] in the system, we conclude that it must continue under the
scrutiny and surveillance of the district court.
537 F.2d at 802-03. In its opinion, the District Court discussed in some detail this
language in Stout 1976, noting this Court’s reluctance to approve of the existence
of one-race schools, and thus concluding that “this Court had to continue to
oversee the county system and consider implementation of additional
desegregation practices.” Doc. 1141 at 41-42, 43,6 Thus, as correctly held by the
District Court, the imprecise use of the term “unitary status” in Stout 1976 has no
effect on the viability of the desegregation order and the District Court’s authority
in this case. Doc. 1141 at 154 (“The record demonstrates that neither this Court
6 Gardendale concedes that this use of the word “unitary” was not in the
“modem” sense described by the Supreme Court. Gardendale Br. 35, n.14.
48
nor any other has released the Jefferson County district from federal oversight of
student assignments or any other Green factor.”)-7
Indeed, on two separate occasions, this Court flatly rejected arguments that
JBOE had been declared unitary. See Stout v. Jefferson Cty. Bd. ofEduc., 845 F.2d
1559, 1561-62 n.4 (11th Cir. 1988) (“Jefferson County school system has not yet
been declared unitary.”); Brown v. Bd. ofEduc. o f Bessemer, 808 F.2d 1445, 1446
(11th Cir. 1987) (“Neither system [Bessemer or Jefferson County] has yet been
declared unitary.”) JBOE has similarly acknowledged that it remains subject to the
federal desegregation order in this case. Jefferson County Br. at 6-7.
More generally, the Supreme Court has acknowledged confusion and
conflicting usage of the word “unitary” and the phrase “unitary status” among the
federal courts, noting that that “a school board is entitled to a rather precise
statement of its obligations under a desegregation decree. If such a decree is to be
terminated or dissolved, [plaintiffs] as well as the school boards are entitled to a
like statement from our court.” Bd. ofEduc. o f Okla. City v. Dowell, 498 U.S. 237,
245, 246 (1991) (citing Pasadena City Bd. ofEduc. v. Spangler, A ll U.S. 424
7 The Fifth Circuit has also reached the same conclusion. See Thomas ex. rel.
D.M.T. v. Sch. Bd. St. Martin Parish, 756 F.3d 380, 388 (5th Cir. 2014) (finding
district court retained jurisdiction in school desegregation case where there had
been no unitary status review process required by Supreme Court precedent).
49
(1976)). Thus, the Supreme Court articulated the applicable standard to determine
whether a district has adequately eliminated the vestiges of de jure discrimination
such that it should no longer be subject to federal oversight:
The District Court should address itself to whether the Board had
complied in good faith with the desegregation decree since it was
entered, and whether the vestiges of past discrimination had been
eliminated to the extent practicable. . . . In considering whether the
vestiges of de jure segregation had been eliminated as far as
practicable, the District Court should look not only at student
assignments, but “to every facet of school operations—faculty, staff,
transportation, extra-curricular activities and facilities.”
Dowell, 498 U.S. at 249-50, 251 (citations omitted); see also Duval Cty. Sch., 273
F.3d at 966.
This case has never gone through the process outlined by the Supreme Court
in Dowell to determine whether JBOE has achieved unitary status, thus warranting
dismissal of the desegregation order. There has never been a full review of the
district’s operations for this purpose, a unitary status hearing, or a declaration of
unitary status by any court under the Supreme Court’s standard. In fact, the
Plaintiffs, the United States as Plaintiff-Intervenor, and JBOE were about to
embark on the holistic review, outlined in Dowell, when Gardendale requested a
suspension of that process to focus on its request to secede. Doc. 1141 at 157-58,
Doc. 1114 at 24-27 (Gardendale rejected the District Court’s offer to delay the
resolution of its separation motion while the parties reconvened the unitary status
50
review process to resolve any questions regarding JBOE’s status). And,
Gardendale’s own superintendent reported to the Gardendale Board, after a tour of
the Jefferson County schools, that “an excessive amount of work” has to be done
“across the entirety of the county” in order to achieve unitary status. Doc. 1141 at
154. He therefore recommended that the Gardendale Board of Education “do
everything to make sure we are not lumped into that process.” Id. at 110, 154.
There is also clear evidence that JBOE is not unitary. The District Court
noted that “it appears that the schools in Jefferson County are racially identifiable
based on faculty and staff assignments.” Id. at 162 n.85. The available data
compels the finding and conclusion that the appearance is the reality. The October
16, 2016, JBOE Report to the Court shows thirteen predominately Black (i.e., a
64% or greater Black student population) schools. Doc. 1106-1. While the JBOE
has a 19.7% employment rate for certified Black teachers, a grossly
disproportionate number of those teachers are assigned to the predominately Black
schools. Doc. 1106-2. Of the fourteen Black principals in the JBOE, only two are
assigned to predominately white schools. Doc. 1106-3. Of the certified teachers
assigned to the predominately white schools (i.e., a 64% or greater white student
population), an average of 93.79% are white. Doc. 1106-2. None of the principals
of these predominately white schools are Black. Doc. 1106-3. “Currently, only
4% of the faculty and staff in the schools in the Gardendale feeder pattern are
51
African-American. . . . Doc. 1141 at 160. Put another way, the racial
identifiability of the Jefferson schools is easily reflected today by the faculty and
staff of the schools. Faculty and staff assignments taken with student assignment
have the “clear effect of earmarking” schools as racially identifiable. Keyes v. Sch.
Dist. No. 1, Denver, 413 U. S. 189, 202 (1973); see also Freeman, 503 U.S. at 497
(“[SJtudent segregation and faculty segregation are often related problems.”)
In summary, JBOE falls substantially short on the teacher and staff
requirements of Green. In the comprehensive desegregation plan presently being
negotiated by the Stout class, the United States, and JBOE, close attention must be
devoted to this factor. It alone reflects that the JBOE has not achieved unitary
status, as contended by Gardendale.
2. Gardendale’s Remaining Arguments for Circumventing Wright and Its
Progeny Are Equally Untenable.
Because Jefferson County has not been determined to have eliminated the
vestiges of de jure discrimination to the extent practicable, this case is governed by
the rule set forth in Stout I, Wright, and Ross II. Each of these cases stand for the
same proposition: a splinter district may not secede from a parent district that is
operating under a desegregation order unless the splinter district proves that its
secession will not impede the achievement of a unitary school system in the parent
district. See Wright, 407 U.S. 451; Stout I, 448 F.2d at 404; Ross II, 583 F.2d at
52
714. None of these cases has been overruled, undermined, or even criticized by
subsequent decisions of this Court or the United States Supreme Court. Thus, they
remain authoritative law and binding on Gardendale’s bid for separation. The
District Court properly applied the standard set forth by the Supreme Court and
this Court, and ruled that Gardendale failed to meet its burden. Doc. 1141 at 162
(“Gardendale’s proposed separation does not satisfy the requirements of Wright
and Ross”).
Gardendale makes several additional arguments as to why “the Wright line
of cases does not apply,” Gardendale Br. at 36. None has merit. First, Gardendale
contends that Wright does not apply because Jefferson County is
“incontrovertibl[y]” no longer in the process of “disestablishing its former dual
system”—a condition precedent for Wright's application. See id. As explained in
greater detail above, this Court has explicitly held that the Jefferson County school
system has not been declared unitary. See Bd. o f Educ. o f Bessemer, 808 F.2d at
1446. Gardendale’s position on this matter was rightly rejected by the District
Court, see Doc. 1141 at 152-54, and even disputed by JBOE itself, see Jefferson
County Br. at 6-7. Gardendale’s argument is also foreclosed by Ross II, which
makes clear that a school system is still in “the process of dismantling a dual
system,” see Wright, 407 U.S. at 470, if it is “operating under a desegregation
order.” Ross II, 583 F.2d at 714. Because Jefferson County is still operating under
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the 1971 desegregation order—as Gardendale concedes, see Gardendale Br. at 5—
Wright, Stout I, and Ross //control the resolution of this dispute.
Gardendale’s second argument is that Wright applies only to the “embryonic
stages of [a school district’s] desegregation.” Gardendale Br. at 36. But, this
assertion is not supported by citation to any legal authority. See id. Indeed, it
directly contradicts Wright, which included no such limitation in its holding that “a
new school district may not be created where its effect would be to impede the
process of dismantling a dual system.” Wright, 407 U.S. at 470. Gardendale’s
argument also conflicts with Ross II, which made clear that the rule concerning
splinter districts applied whenever “a school district [is] operating under a
desegregation order,” as is the case here. Ross II, 583 F.2d at 714. Ross II
examined a proposed splinter district in 1978, see id., in a desegregation case that
had begun two decades earlier in 1956, see Ross I, 559 F.2d at 939, which was
hardly the “embryonic” stage of that school district’s desegregation efforts.
Gardendale’s third argument is that “ Wright does not apply” because “the
concerns animating that decision are not present.” Gardendale Br. at 37.
Specifically, Gardendale claims that Wright was animated by the timing of the
separation at issue in that case. Because the splinter district in that case sought to
separate immediately after the district court issued an order that would have
integrated its schools, the proposed separation communicated a message of
54
inferiority to Black school children. That concern, Gardendale argues, is absent
here because Gardendale has been subject to the same desegregation order since
1971, so its departure cannot be a response to integration. See id. This argument
finds no support in Wright or in the facts of this case.
The Supreme Court in Wright unequivocally held that its animating concern
was “a new school district. . . impeding] the process of dismantling a dual
system,” Wright, 407 U.S. at 470, and the District Court was similarly unequivocal
in finding that concern present in this case. Doc. 1141 at 151-80. The timing of
the splinter district’s separation was one “factor” relied on by Wright to determine
whether the separation would impede the parent district’s desegregation efforts, but
nothing in Wright suggests that its holding is applicable only when a school seeks
to secede immediately after an order requiring integration. See Wright, 407 U.S. at
465-66. In addition, the District Court specifically found that Gardendale’s
secession efforts communicated the same message of inferiority to Black students
as the splinter district’s separation efforts in Wright. See Doc. 1141 at 174-80. As
the District Court found, Gardendale was trying to separate because it
“experienced the consequences of the desegregation order in this case”—namely,
an increased percentage of Black students in their schools—and wanted to avoid
those consequences. See id. The timing may have been different, but the message
of inferiority sent to Black students was the same.
55
Finally, Gardendale argues that its reading of Wright “is reinforced by the
imperatives of federalism and local control.” Gardendale Br. at 38. In essence,
Gardendale quotes short snippets of factually distinct cases that laud “local
control” and claims that these quotes should somehow influence this Court’s
interpretation of Wright. To the contrary, none of these cases undennines or
overrules Wright. Consequently, they cannot alter the plain meaning of Wright's
holding, and Wright and Ross remain binding law in this matter.
C. W rig h t Demands Fully Enjoining Gardendale’s Secession from Jefferson
County, and the District Court’s Contrary Ruling Was Clear Error.
Having properly found that GBOE’s secession would impede JBOE’s ability
to meet its desegregation obligations, the District Court was bound by Wright to
completely stop Gardendale’s secession from Jefferson County. In its cross
appellant brief and response, GBOE does not directly respond to Plaintiffs’
principal appeal brief regarding the remedy required by Wright, instead
erroneously arguing that Wright should not apply. See supra Section II.B at 47-56.
GBOE, therefore, waived any rebuttal to what Wright, if applicable, requires.
Accordingly, if this Court holds that Wright applies in this case (which it does), the
Court should likewise find that the District Court committed clear error with
56
respect to its remedy and order that GBOE be completely enjoined from seceding
and operating its own separate school system.
CONCLUSION
For the foregoing reasons, Plaintiffs-Appellants respectfully request that this
Court affirm the District Court’s rulings with respect to Gardendale’s
discriminatory purpose and failure to meet its burden under Wright, but reverse the
District Court’s approval of a new Gardendale School District.
Respectfully Submitted,
/s/ Monique N. Lin-Luse
SHERRILYN A. IFILL
President and Director-Counsel
JANAI S. NELSON
SAMUEL SPITAL
JIN HEE LEE
MONIQUE N. LIN-LUSE
Counsel o f Record
NAACP LEGAL DEFENSE
EDUCATIONAL FUND, INC.
40 Rector Street, 5th Floor
New York, NY 10006
Tel: (212) 965-2200
Fax: (212) 226-7592 mlinluse@naacpldf.org
57
mailto:mlinluse@naacpldf.org
U.W. CLEMON
U.W. CLEMON, LLC
5202 Mountain Ridge Parkway
Birmingham, AL 35222
Tel:(205)837-2898
Fax: (205) 798-2577
clemonu@bellsouth.net
CHRISTOPHER KEMMITT
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
1444 Eye Street NW 10th Floor
Washington, D.C. 20005
Tel: (202) 682-1300
Fax:(202)682-1312
ckemmitt@naacpldf.org
Attorneys for Plaintiffs-Appellants
58
mailto:clemonu@bellsouth.net
mailto:ckemmitt@naacpldf.org
CERTIFICATE OF COM PLIANCE
This brief complies with the type-volume limitations of Fed. R. App. P.
32(a)(7)(B) as the brief contains 12,921 words, excluding those parts exempted by
11th Cir. Local R. 32-4.
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) as this brief has been
prepared in a proportionally spaced typeface using Microsoft Word in 14 point
Times New Roman font.
/s/Monique N. Lin-Luse
MONIQUE N. LIN-LUSE
NAACP Legal Defense and Educational
Fund, Inc.
59
CERTIFICATE OF SERVICE
I hereby certify that on October 6, 2017, 7 copies of the brief were dispatched
for delivery to the Clerk’s Office of the United States Court of Appeals for the
Eleventh Circuit by third-party commercial carrier for overnight delivery at the
following address:
David J. Smith
Clerk of Court
U.S. Court of Appeals for the 11th Circuit
56 Forsyth St., N.W.
Atlanta, Georgia 30303
On this same date, a copy of the brief was served on all counsel of record via
CM/ECF or in some other authorized manner for those counsel or parties who are
not authorized to receive electronic Notices of Electronic Filing.
/s/ Simone Cintron
Counsel Press
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(212) 685-9800
Filing and service were performed by direction of counsel
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