Stout v. Jefferson County Board of Education Initial Brief of Appellants

    DOCKET NO. 17-12338

IStritcii States (fmtrt of Appeals
for the

jElrucnth (Etrarit

LINDA STOUT, LONNELL CARTER, ALFORNIA CARTER, SANDRA RAY, 
RICKY REEVES, ALENE REEVES, and CARTRENA CARTER, on behalf of 

themselves and others similarly situated,

Plaintiffs-Appellants/Cross-Appellees,

JEFFERSON COUNTY BOARD OF EDUCATION, et ah, 
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)______________

INITIAL BRIEF OF APPELLANTS

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 IFILL 
President and Director-Counsel 

JANAIS. NELSON 
SAMUEL SPITAL 
JINHEE 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:ckemmitt@naacpldf.org
mailto:clemonu@bellsouth.net
mailto:mlinluse@naacpldf.org


Linda Stout, et al. v. Jefferson County School Board, No. 17-12338

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE 
DISCLOSURE STATEMENT

Plaintiffs-Appellants/Cross-Appellees Linda Stout, Lonnell and Alfomia 

Carter, Sandra Ray, Alene and Ricky Reeves, and Cartrena Carter (“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-Appellant

3. Cartrena Carter, Plaintiff-Appellant

4. Lonnell Carter, Plaintiff-Appellant

5. Sandra Ray, Plaintiff-Appellant

6. Alene Reeves, Plaintiff-Appellant

7. Ricky Reeves, Plaintiff-Appellant

8. Parents of all African American students currently enrolled, or who 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 Hill, LDF Attorney for Plaintiffs-Appellants

11. Janai Nelson, LDF Attorney for Plaintiffs-Appellants

12. Jin Hee Lee, LDF Attorney for Plaintiffs-Appellants

Page C-l of 4



13. Monique N. Lin-Luse, LDF Attorney for Plaintiffs-Appellants

14. Christopher Kemmitt, LDF Attorney for Plaintiffs-Appellants

15. Deuel Ross, LDF Attorney for Plaintiffs-Appellants

16. Samuel Spital, LDF Attorney for Plaintiffs-Appellants

17. U.W. demon, LDF Cooperating Local Attorney for Plaintiffs-Appellants

18. U.W. Clemon, LLC, Attorney for Plaintiffs-Appellants

19. White Arnold & Dowd P.C., former law firm associated with U.W. 

Clemon, Attorney for Plaintiffs-Appellants

20. Jefferson County Board of Education (“JCBOE”), Defendant- 

Appellee/Cross-Appellant

21. Jacqueline A. Smith, JCBOE Member

22. Dr. Martha V. Bouyer, JCBOE Member

23. Ronnie Dixon, JCBOE Member

24. Oscar S. Mann, JCBOE Member

25. Donna J. Pike, JCBOE Member

26. Dr. Warren Craig Pouncey, Superintendent, JCBOE

27. Whit Colvin, Attorney for JCBOE

28. Andrew Ethan Rudloff, Attorney for JCBOE

29. Carl E. Johnson, Jr, Attorney for JCBOE

30. Bishop, Colvin, Johnson, and Kent, LLC, Counsel for JCBOE

Page C-2 of 4

Linda Stout, et al. v. Jefferson County School Board, No. 17-12338



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

47. Sharon D. Kelly, Assistant United States Attorney, Northern District of 

Alabama

Linda Stout, et al. v. Jefferson County School Board, No. 17-12338

Page C-3 of 4



Linda Stout, et al. v. Jefferson County School Board, No. 17-12338

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.

Page C-4 of 4



STATEMENT REGARDING ORAL ARGUMENT

Plaintiffs-Appellants, pursuant to Federal Rule of Appellate Procedure 

34 and Eleventh Circuit Rule 34(3)(c), respectfully request oral argument. 

This case presents important constitutional issues related to the effectuation 

of school desegregation orders. Oral argument will assist this Court to 

analyze the complex record and to resolve these important legal issues.

1



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE 
DISCLOSURE STATEMENT................................................................... C-l

STATEMENT REGARDING ORAL ARGUMENT..................................... i

TABLE OF CONTENTS................................................................................ ii

TABLE OF AUTHORITIES......................................................................... iii

STATEMENT OF JURISDICTION................................................................1

STATEMENT OF THE ISSUES.................................................................... 3

STATEMENT OF THE CASE....................................................................... 4

I. Procedural History.................................................................................6

II. The Trial Evidence and the Court’s Factual Findings.........................11

A. The Evidence of Gardendale’s Discriminatory Intent in Seeking
to Secede from the Jefferson County School District to Create a 
Significantly Whiter School System.........................................12

B. Gardendale’s Failure to Carry Its Burden Under Established
Precedent as to the Effect of Its Secession on Desegregation 
Efforts in Jefferson County...................................................... 20

III. The District Court’s Orders Permitting Gardendale to Secede from
Jefferson County................................................................................. 24

IV. Standard of Review............................................................................ 26

SUMMARY OF THE ARGUMENT........................................................... 27

ARGUMENT.................................................................................................29

I. Recognition of the Gardendale School District Is Foreclosed by
Binding Precedent and by the Law of the Case.................................. 29

ii



A. Controlling Law Prohibits District Courts from Approving a
Splinter District if the District Cannot Prove that Its Secession 
Would Not Undermine Desegregation Efforts in the Parent 
District........................................................................................31

B. The District Court Erred by Concluding that Stout I  Is No
Longer Good Law......................................................................36

C. The “Practical Considerations” Identified by the District Court
Do Not Support Its Remedial Order......................................... 42

II. The District Court’s Finding of Intentional Discrimination Constitutes
an Additional Basis for Denying Gardendale’s Request to Secede from
Jefferson County.................................................................................. 50

CONCLUSION..............................................................................................54

Certificate of Compliance............................................................................ 55

Certificate of Service....................................................................................56

iii



TABLE OF AUTHORITIES

PAGE(S)

CASES

Alikhani v. United States,
200 F.3d 732 (11th Cir. 2000)................................................................  27, 31, 50

Bonner v. City o f Prichard,
661 F.2d 1206 (11th Cir. 1981).......................................................................... 34

*Brown v. Board o f Education,
341 U.S. 483 (1954).......................................................................................6, 44

Calhoun v. Bd. ofEduc. o f Atlanta,
188 F. Supp. 401 (N.D. Ga. 1959)..................................................................... 49

*City o f Richmond v. United States,
422 U.S. 358 (1975)..................................................................................... 28,51

Cooper v. Aaron,
358 U.S. 1 (1958)................................................................................................ 49

In re Bayshore Ford Truck Sales, Inc.,
471 F.3d 1233 (11th Cir. 2006)............................................................................ 2

In re Hubbard,
803 F.3d 1298 (11th Cir. 2015)............................................................... 39-40, 40

Fla. League o f P ro f l Lobbyists, Inc. v. Meggs,
87 F.3d 457 (11th Cir. 1996)................................................................................30

Green v. Cty. Sch. Bd. o f New Kent,
391 U.S. 430 (1968)........................................................................................52-53

Griffin v. School Bd. o f Prince Edward Cty.,
377 U.S. 218(1964)...............................................................................................6

Lee v. Chambers Cty. Bd. ofEduc.,
849 F. Supp. 1474 (M .D. Al. 1994)...................................................................  50

IV



PAGE(S)

*Lee v. Macon Cty. Bd. ofEduc.,
448 F.2d 746 (5th Cir. 1971)........................................................................passim

Main Drug, Inc. v. Aetna U.S. Healthcare, Inc.,
475 F.3d 1228 (11th Cir. 2007)............................................................................. 40

Milliken v. Bradley,
418 U.S. 717(1974)............................................................................................ 52

Milliken v. Bradley,
433 U.S. 267 (1977)............................................................................................ 52

Monroe v. Bd. o f Comm ’rs o f Jackson,
391 U.S. 450(1968)............................................................................................. 33

N. C. State Bd. o f Educ. v. Swann,
402 U.S. 43 (1971)................................................................................. 6-7,31,32

*Ross v. Houston Indep. Sch. Dist.,
583 F.2d 712 (5th Cir. 1978)........................................................................passim

Singleton v. Jackson Mun. Separate Sch. Dist.,
419 F.2d 1211 (5th Cir. 1969)...............................................................................8

Stell v. Savannah-Chatham Cty. Bd. o f Educ.,
888 F.2d 82 (11th Cir. 1989)...............................................................................27

*Stout v. Jefferson Cty. Bd. ofEduc.,
448 F.2d 403 (5th Cir. 1971)..........................................................................passim

* Stout v. Jefferson Cty. Bd. o f Educ.,
466 F.2d 1213 (5th Cir. 1972).................................................................... passim

This That & the Other Gift & Tobacco, Inc. v. Cobb County,
439 F.3d 1275 (11th Cir. 2006)...........................................................................41

United States v. Alabama,
828 F.2d 1532 (11th Cir. 1987).............................................................................2

United States v. Jefferson Cty. Bd. ofEduc.,
372 F.2d 836 (5th Cir. 1966).................................................................................7

v



United States v. Jefferson Cty. Bd. o f Educ.,
417 F.2d 834 (5th Cir. 1969)..............................................................................7-8

United States v. Scotland Neck Bd. o f Educ.,
407 U.S. 484(1972)............................................................................................. 49

United States v. Tex. Educ. Agency,
579 F.2d 910 (5th Cir. 1978)...............................................................................47

United States v. Virginia,
518 U.S. 515 (1996)...................................................................................... 52, 53

United States v. Whatley,
719 F.3d 1206 (11th Cir. 2013).................................................................... 27, 50

Westbrook v. Zant,
743 F.2d 764 (11th Cir. 1984)..............................................................................41

* Wright v. Council o f Emporia,
407 U.S. 451 (1972)..................................................................................... passim

Wright v. Sch. Bd. o f Greensville Cty.,
309 F. Supp. 671 (E.D. Va. 1970)......................................................................  33

PAGE(S)

STATUTES & RULES

28 U.S.C.
§ 1291................................................................................................................. 1,2
§ 1292......................................................................................................................1
§ 1331......................................................................................................................1

Ala. Code § 16-8-20.................................................................................................22

Fed. R. App. P. 4(a)(1)..............................................................................................3

Fed. R. Civ. P. 52(a)(6)...........................................................................................27

PAGE(S)

vi



STATEMENT OF JURISDICTION

This appeal arises out of a case originally filed in 1965 by Plaintiffs- 

Appellants (also known as the Stout Plaintiffs), who represent the class of parents 

of Black schoolchildren in Jefferson County, Alabama. The suit resulted in a 

permanent injunction, which barred the Jefferson County Board of Education from 

operating a racially-segregated school system, and required the development, 

implementation, and continued court supervision of a plan to desegregate Jefferson 

County’s schools. See Doc. 2 (“Complaint”); Doc. 3 (“Mot. for Prelim. Inj.”);

Doc. 5 (“Order.”)1 In 2015, Gardendale, a city in Jefferson County, intervened as a 

defendant and filed a motion to create a new school system separate from the 

Jefferson County Board of Education. See Doc. 1002 (“Mot. for Intervention”); 

Doc. 1040, Doc. 1040-1 (“Mot. to Separate”) and (“Prop. Separation Agreement”). 

The District Court had jurisdiction over both the original case and Gardendale’s 

motion under 28 U.S.C. § 1331.

The District Court granted in part, and denied in part, Gardendale’s motion. 

As explained more fully in Plaintiffs-Appellants’ Response to the Clerk’s 

Jurisdictional Questions, dated July 5, 2017, this Court has jurisdiction to review 

the District Court’s ruling under both 28 U.S.C. § 1291 and 28 U.S.C. § 1292. In

1 References to the District Court record are by docket entry (“Doc.”) 
followed by the relevant docket entry number.

1



the school desegregation context, this Court considers the “indicia of finality” in a 

district court opinion to determine whether it is an appealable, final judgment 

under 28 U.S.C. § 1291. United States v. Alabama, 828 F.2d 1532, 1537 (11th Cir. 

1987). District court opinions are “for all practical purposes a final order” when 

they are thorough in “specificity, detail, and comprehensiveness,” and when “the 

District Court gives detailed instructions in every area.” Id. That standard is 

satisfied here because the District Court approved the creation of an entirely new 

school system that encompassed new zoning lines for certain schools, and required 

the parties to create a facilities plan for additional schools with comprehensive and 

detailed directions for what should be included in that plan. Doc. 1141 (“Mem.

Op. & Order”) at 185-190.

This Court also has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), because 

the District Court issued an order “granting, continuing, modifying, refusing or 

dissolving [an] injunction^, or refusing to modify [an] injunction[].” See In re 

Bayshore Ford Truck Sales, Inc., 471 F.3d 1233, 1260 (11th Cir. 2006). 

Specifically, the District Court granted in part Gardendale’s request to create a 

splinter district, which in effect denied Plaintiffs-Appellants’ request for an order 

enjoining the creation of the new district. See Doc. 1141 at 185. Alternatively, the 

District Court’s opinion can be understood as “continuing, modifying, refusing to

2



dissolvfe] . . .  or refusing to . . . modify” the prior injunction that had been issued 

in this case governing Jefferson County’s schools. 28 U.S.C. § 1292(a)(1).

The District Court issued its Memorandum Opinion and Order on April 24, 

2017, and, in response to a timely motion to alter or amend the judgment, it issued 

its Supplemental Memorandum Opinion on May 9, 2017. Doc. 1141; Doc. 1152 

(“Suppl. Mem. Op.”). Plaintiffs-Appellants filed a timely notice of appeal on May 

22, 2017. See Doc. 1160 (“Notice of Appeal”); Fed. R. App. P. 4(a)(1). On 

August 2, 2017, this Court’s clerk noted that this Court has probable jurisdiction to 

hear this case after issuing a Jurisdiction Question to the parties.

STATEMENT OF THE ISSUES

(1) Wright v. Council o f Emporia, 407 U.S. 451, 470 (1972), holds “that a 

new school district may not be created where its effect would be to impede the 

process of dismantling a dual system.” Did the District Court commit legal error 

by permitting the Gardendale Board of Education to operate a new school district 

despite making a factual finding that creation of a new Gardendale school district 

would impede desegregation efforts of the Jefferson County Board of Education?

(2) The District Court further found that Gardendale was motivated by 

intentional racial discrimination—specifically, the desire to exclude Black

3



schoolchildren—in creating a new district. Did the District Court err in approving 

the formation of a new Gardendale school system despite that factual finding?

STATEMENT OF THE CASE

The City of Gardendale is a small, predominantly white municipality in 

Jefferson County, Alabama. In 2015, Gardendale sought to prevent the racial 

integration of its schools by seceding from the Jefferson County School District 

(“JCSD”). After a bench trial, the District Court expressly found that Gardendale’s 

secession effort was motivated by intentional racial discrimination, and that its 

request to operate a new school district would undermine desegregation efforts in 

Jefferson County. The District Court’s factual findings are unassailable. Under 

controlling precedent, they permit of only one result: an order prohibiting 

Gardendale’s secession. Yet, the District Court misinterpreted that precedent. As 

a result, even though the District Court recognized that Gardendale’s secession was 

motivated by the intent to circumvent an existing desegregation order and exclude 

Black children from Gardendale’s schools, the court permitted Gardendale to 

secede.

The Jefferson County School District is operated by the Jefferson County 

Board of Education (“JCBOE”). JCBOE runs 56 schools, including four public 

schools located within Gardendale’s city limits. JCSD, which is 47.5% Black and 

43.5% white, is governed by a long-standing desegregation decree. Over the

4



previous two decades, the racial demographics of Jefferson County have shifted, 

leaving the county school system with a lower percentage of white students. 

Majority-white municipalities with separate school systems have been largely 

impervious to the county’s changing demographics, however, remaining 

segregated while the African American population in other areas of Jefferson 

County has increased. See, e.g., Doc. 1131-6 at 12 (“Decl. of William S. Cooper”). 

Some Gardendale residents are concerned about the significant increase in the 

proportion of Black students in the Jefferson County School District; they fear that 

Gardendale might become a predominantly Black city. Doc. 1141 at 138. As the 

District Court explained, “[tjhese citizens prefer a predominantly white city.” Id.

Motivated by a desire to avoid further integration of Gardendale’s public 

schools and the city itself, Gardendale residents launched an effort to secede from 

JCSD and create an independent municipal school system. Gardendale’s secession 

was opposed by Plaintiff-Appellants, the United States Department of Justice 

(“DOJ”), the Jefferson County Board of Education, and multiple Plaintiff- 

Intervenors.

Following a five-day bench trial, the District Court found that:

(1) Gardendale failed to carry its burden of showing that its secession would not 

impede desegregation efforts in Jefferson County, and (2) Gardendale’s secession 

was motivated by intentional racial discrimination. Notwithstanding these

5



findings, the District Court granted in part Gardendale’s motion to operate a 

separate school system. Specifically, the court permitted Gardendale to operate a 

new school system comprised of the two elementary schools within its municipal 

boundaries. The court ordered that the middle school and high school in 

Gardendale remain JCBOE schools, while allowing Gardendale to file a renewed 

motion to operate those schools after three years. The decision to permit 

Gardendale to secede from the Jefferson County School District is the subject of 

the instant appeal.

I. Procedural History

On May 17, 1954, the Supreme Court decided Brown v. Board o f Education, 

347 U.S. 483 (1954), ruling that “[sjeparate educational facilities are inherently 

unequal” and deprive Black schoolchildren “of the equal protection of the laws 

guaranteed by the Fourteenth Amendment.” M a t 495. Despite Brown, 

segregation persisted. School boards ignored the ruling, made half-hearted, 

ineffectual attempts to comply, or defied outright the Court’s edict. State and local 

governments employed an array of stratagems to avoid desegregation. See, e.g. 

Griffin v. School Bd. o f Prince Edward Cty., 377 U.S. 218 (1964) (holding that 

county school board’s actions were unconstitutional where county responded to 

Brown by closing public schools and supporting private, white-segregated 

schools); N.C. State Bd. ofEduc. v. Swann, 402 U.S. 43 (1971) (ruling that a North

6



Carolina anti-busing statute that impeded desegregation was unconstitutional). 

One of these stratagems was the secession of mostly-white towns from larger and 

more diverse county school systems to avoid racial integration. See Wright v. 

Council o f Emporia, 407 U.S. 451 (1972) (prohibiting municipal secession from 

county school district following enactment of countywide desegregation decree). 

Jefferson County was not an outlier in this regard.

Plaintiffs-Appellants sued JCBOE on June 4, 1965 because it continued to 

operate a segregated school system eleven years after Brown. On June 24 of that 

year, the District Court found that JCBOE was operating a segregated school 

system and ordered it to desegregate. See Doc. 5.2 Shortly thereafter, the United 

States, through the Department of Justice, intervened as a plaintiff. See Doc. 8 

(“Mot. of United States to Intervene”). Between 1965 and 1968, the JCBOE 

utilized a “freedom of choice” desegregation plan. Doc. 1141 at 12; United States 

v. Jefferson Cty. Bd. ofEduc., 372 F.2d 836 (5th Cir. 1966). Plaintiffs-Appellants 

challenged the “freedom of choice” plan, and the Fifth Circuit ordered a zoning- 

based desegregation plan for the first time in United States v. Jefferson County

2 The electronic docket does not include the vast majority of early docket 
entries. Plaintiffs-Appellants have attached the paper docket as part of the 
Appendix. Some entries, like the docket entry above, are not clearly numbered in 
the paper docket. In these circumstances, Plaintiffs-Appellants have identified the 
entries by date and attempted, to the best of their ability, to discern the correct 
docket number.

7



Board o f Education, 417 F.2d 834, 836 (5th Cir. 1969). Later that year, this case 

was consolidated with twelve other desegregation cases throughout the six states 

which comprised the Fifth Circuit, sub nom, Singleton v. Jackson Municipal 

Separate School District, 419 F.2d 1211,1219 (5th Cir. 1969). Pursuant to the 

mid-school year mandate of Singleton, the District Court entered its comprehensive 

^ Singleton"’’ desegregation order on February 2, 1970. See Doc. 131 (“Order”).

Between February and July of 1970, three all-white cities—Pleasant Grove, 

Vestavia Hills, and Midfield—and the predominately-white city of Homewood 

withdrew from the Jefferson County School District and formed separate 

municipal school districts. Plaintiffs-Appellants challenged these secessions, and 

in response, the Fifth Circuit ordered the District Court to “implement a student 

assignment plan” that included both JCBOE and each of the municipal school 

districts that had separated from the county. The District Court issued its order on 

September 8, 1971. See Doc. 226 (“1971 Order”). The 1971 Order set forth a 

comprehensive desegregation plan, which remains the primary operative order in 

this case.

One of the separating school districts, the City of Pleasant Grove, refused to 

comply with the 1971 Order’s requirement to purchase buses for the transportation 

of Black students. As a result, the District Court enjoined operation of the Pleasant 

Grove school district, and the Fifth Circuit affirmed that decision. Stout v.

8



Jefferson Cty. Bd. ofEduc., 466 F.2d 1213 (5th Cir. 1972). As the Fifth Circuit 

explained, “‘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.’” Id. at 1214 (citation omitted).

In the period since Pleasant Grove’s court-ordered dissolution, three more 

municipalities—each with predominantly white residents—have seceded from the 

Jefferson County school system. These separations have “contributed to 

significant demographic shifts in Jefferson County.” Doc. 1141 at 66. Gardendale 

now aspires to be the fourth municipality to secede since the 1971 Order. On 

March 3, 2014, the Gardendale City Council established a municipal school 

system, headed by a new Gardendale Board of Education (“GBOE”). GBOE 

moved to intervene in this case on March 13, 2015, following an abortive attempt 

to evade federal review by filing a state court lawsuit.3 Id. at 107. On December 

11, 2015, Gardendale filed a motion to operate a municipal school system and a 

proposed plan of separation. Id. at 115.

3 Although binding Circuit authority required Gardendale to prove to the 
District Court that its separation would have a “lack of deleterious effects on 
desegregation” in Jefferson County, see Ross v. Houston Indep. Sch. Dist., 583 
F.2d 712, 714 (5th Cir. 1978), Gardendale first filed a lawsuit in state court to force 
Jefferson County to relinquish control over the public schools located within 
Gardendale’s city limits. Doc. 1141 at 107. The District Court enjoined the state 
court suit after Gardendale moved to intervene in this case. See id.

9



Pursuant to Gardendale’s proposal, GBOE would create an independent 

school system and assume control of the four JCBOE schools located within 

Gardendale’s municipal boundaries: Snow Rogers Elementary, Gardendale 

Elementary, Bragg Middle School, and Gardendale High School. The high school 

is a $51 million, state-of-the-art facility that was built by JCBOE in 2010 for the 

education of students in and around Gardendale.4 Id. at 69. According to 

Gardendale’s proposal, GBOE would receive each of these schools free of charge.

The plan would also change the Gardendale school attendance zones. At 

present, the four schools in Gardendale educate students from Gardendale, the 

towns of Brookside and Graysville, and the unincorporated areas of North 

Smithfield Manor-Greenleaf Heights (“North Smithfield”) and Mount Olive.

Under Gardendale’s proposal, the school attendance lines would be re-drawn at the 

municipal boundaries. Students from outside the city limits would be phased out 

over a thirteen-year period with the exception of students from North Smithfield, 

who would be permitted to stay for the “indefinite future.” Id. at 128.

Gardendale’s motion to operate a separate municipal school system was 

opposed by Plaintiffs-Appellants, DOJ, and JCBOE. Additionally, the City of

4 The District Court noted that “[t]he new Gardendale High School is 
appropriately regarded as one of Jefferson County’s desegregatory tools.” Doc. 
1141 at 171.

1 0



Graysville, the Town of Brookside, and two parents from the unincorporated 

community of Mount Olive moved for limited intervention in order to oppose 

Gardendale’s separation. Id. at 133. To resolve the dispute, the District Court held 

a bench trial on December 1-2 and 7-9, 2016. Id. at 137.

II. The Trial Evidence and the Court’s Factual Findings

The trial evidence adduced by the parties focused on two issues: (1) whether

GBOE’s creation and operation were motivated by the intent to exclude Black 

schoolchildren from Gardendale schools, and (2) whether Gardendale could satisfy 

its legal burden to prove that its separation would not impede Jefferson County’s 

desegregation efforts.

The court answered the first question in the affirmative: “[T]he Court finds 

that race was a motivating factor in Gardendale’s decision to separate from the 

Jefferson County public school system.” Doc. 1141 at 138. Specifically, “[t]he 

record demonstrates that the Gardendale Board is trying to evade the Court’s 

desegregation order because some citizens in Gardendale want to eliminate from 

Gardendale schools the black students whom Jefferson County transports to 

schools in Gardendale.” Id. at 151.

The court answered the second factual question in the negative, finding that 

“Gardendale has not demonstrated that its separation will not impede Jefferson

11



County’s effort to . . . eliminate the vestiges of past discrimination to the extent 

practicable.” Id. at 162.

A. The Evidence of Gardendale’s Discriminatory Intent in Seeking to 
Secede from the Jefferson County School District to Create a 
Significantly Whiter School System

The record amply supported the District Court’s factual finding that GBOE’s 

desire to exclude Black children from Gardendale schools motivated its motion to 

separate from Jefferson County. At the time of Gardendale’s separation efforts, 

Jefferson County’s schools were in the midst of a significant demographic change. 

In 2000, the county school system was 75.6% white and 23.0% Black. Doc. 1141 

at 67. In 2015, following a pair of municipal separations and the repeated 

annexation of majority-white areas by majority-white municipalities that were not 

part of the Jefferson County school system, the county schools were 43.4% white 

and 47.3% Black. Id. The demographics of Gardendale’s student population has 

followed a similar but more gradual trajectory. Twenty years ago, the student 

population within Gardendale’s city limits was 92% white and 8% Black; today 

20% of the student population is Black. Id. at 92. The City of Gardendale, 

however, remains 88.4% white. Id. at 74. Gardendale’s schools have a higher 

percentage of Black students than the percentage of Black residents in the 

municipality because of the 1971 Order. That desegregation order provides for the 

busing of students from the mostly-Black North Smithfield community to

1 2



Gardendale’s schools and also permits some students from majority-Black schools 

in Jefferson County to transfer to Gardendale’s schools.

As the District Court found, “some Gardendale citizens are concerned 

because the racial demographics in Gardendale are shifting, and they worry that 

Gardendale, like its neighbor Center Point, may become a predominantly black 

city. These citizens prefer a predominantly white city.” Id. at 138. The 

Gardendale citizens referenced by the District Court include key individuals 

responsible for organizing the separation effort, two of whom became inaugural 

members of the Gardendale Board of Education. Doc. 1124 at 168:17-169:3, 

183:17-184:15 (“Dec. 1, 2016 Trial Tr.”); Doc. 1131-35 at 19:2-13, 104:10- 

107:14, 110:11-20 (“Joint Trial Ex. 20, Mar. 16, 2016 Chris Segroves Dep. Tr.”). 

In particular, organizers of the separation effort made clear their concern that 

Gardendale’s schools did not reflect the overwhelmingly white character of the 

city. As one organizer commented before the separation, “A look at our 

community sporting events, our churches are great snapshots of the community. A 

look into our schools, and you’ll see something totally different.” Doc. 1141 at 

140. Another organizer explained that creating a separate school system would 

provide “better control over the geographic composition of the student body.” Id. 

at 177.

13



On another occasion, a separation organizer noted: “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.” Id. at 88. Community members repeatedly echoed these sentiments 

on a public Facebook page created for the purpose of supporting the separation 

effort. See, e.g., id. at 141 (“did you know we are sending buses to Center point 

[s/c] and busing kids to OUR schools in Gardendale as well as from [North 

Smithfield]!”); see also id. at 80-89, 128, 137.

The goals of Gardendale’s separation were vividly illustrated by a flyer 

disseminated in the community during the separation effort. Id. at 93; see also 

Doc. 1132-13 (“Pis.’ Trial Ex. 11, Gardendale Advertisement”). The flyer depicts 

a white elementary school student and asks, “What path will Gardendale choose?” 

Doc. 1141 at 94. Two choices are provided. The top of the flyer lists several well- 

integrated or predominantly Black municipalities that have not formed municipal 

school systems. The bottom lists cities that “chose to form and support their own 

school system.” Id. at 95. Each of these cities have school systems that are 

predominantly white and have been since 1970. The flyer characterizes them as 

“some of the best places to live in the country.” Id. A Black resident of North 

Smithfield explained the message of the flyer as follows: “[i]f you do not want the 

undesirables and problem children, you best be forming your own [school] 

system.” Id.

14



The racial motivation underlying Gardendale’s separation effort is 

confirmed by the fact that organizers initially proposed excluding surrounding 

communities that are predominately Black from the new school district, but 

including Mt. Olive, which is 97% white. Id. at 81, 164. Indeed, when Gardendale 

commissioned a feasibility study for a public-school system in the city, the author 

included Mount Olive students in the study but not students from any other 

community.5 Id. at 92.

State Senator Scott Beason was also a leader in the effort to create a separate 

school system for Gardendale. Named Plaintiff Sandra Ray testified that, having 

heard news reports that Senator Beason referred to African Americans as 

“aborigines,” she had serious concerns about his involvement in the Gardendale 

school system. Doc. 1128 at 1270:20-1271:17. (“Dec. 9, 2016 Trial Tr.”). The 

organizers of the separation effort succeeded, and on March 3, 2014, the 

Gardendale City Council adopted an ordinance that created the Gardendale City 

School System.

5 Although separation organizers spoke to State Senator Scott Beason, who 
was prepared to sponsor legislation that would annex Mount Olive into 
Gardendale, practical obstacles related to the local fire district have impeded 
Gardendale from including Mt. Olive in its separation plan. Doc. 1131-47 at 48-51 
(“Joint Trial Ex. 24, Mar. 18, 2016 Scott Beason Dep. Tr.”).

15



The actions of this new school district have reflected the same racial

discrimination that motivated its creation. In early 2014, the Gardendale City 

Council solicited applicants for the Board of Education and selected five members, 

each of whom is white and two of whom were lead separation organizers. Doc.

1141 at 98. In so doing, the Board passed over a highly qualified Black applicant, 

Dr. Sharon Porterfield Miller, even though she had more educational experience 

than all but one member chosen for the Board. Id. at 99. Dr. Miller testified at 

trial that she believed that race was a factor in Gardendale’s decision not to select 

her. Id. at 100.

When Gardendale first drafted a separation plan in March 2015, it excluded 

the majority-Black North Smithfield community that had attended Gardendale 

schools since 1971. Id. at 115. In a volte-face, Gardendale included North 

Smithfield in the separation plan that it presented to the District Court in December 

2015. Id. at 116. The change was motivated by the 1971 Order in this case, which 

Gardendale understood to require that a separating school district meet a certain 

ratio of student enrollment by race. Id. at 123. Without the Black students from 

North Smithfield, Gardendale could not meet that ratio. Id. at 123-24. Yet, 

GBOE’s superintendent—who had never worked with a Black teacher and had 

never hired a Black teacher or administrator in his seventeen-year career in 

education—did not even consult with the North Smithfield community before

16



proposing their inclusion in the new Gardendale district. Id. at 101 n.52, 121. He 

failed to do so even though North Smithfield’s residents would be deprived of a 

voice on their local school board, and its students would be forced to attend a 

different elementary school. Id. at 122.

When North Smithfield’s inclusion in the proposed school district became 

public, members of the Gardendale community voiced their displeasure to the 

superintendent and on the Facebook page created by proponents of the separation. 

Id. at 128. One of the separation organizers defended the move to unhappy 

residents, explaining that “[t]his has the hallmarks of a specific, technical, tactical 

decision aimed at addressing a recognized roadblock to breaking away.” Id. at 

130. But he characterized the inclusion of North Smithfield students as a “bitter 

. . . pill to swallow,” and he acknowledged that Gardendale residents would differ 

in their opinions as to whether it was too bitter to justify the ultimate goal of 

separation. Id. at 131. Another organizer “described the inclusion of the children 

from North Smithfield as ‘the price’ Gardendale had ‘to pay to gain approval for 

separation.’” Id. at 176.

The Gardendale Board’s intent to exclude Black students is also reflected in 

its actions and inactions regarding policies that would affect the racial composition 

of an independent Gardendale school district. At the end of 2014, the GBOE 

superintendent drafted an inter-district transfer policy that included numerous

17



provisions, only one of which addressed racial desegregation transfers. Id. at 143. 

The president of GBOE singled out the racial desegregation transfer provision for 

review by the district’s legal team to determine its “applicability/appropriateness 

for GBOE.” Id. at 144. Subsequent drafts of the racial desegregation transfer 

provision added caveats “designed to minimize or eliminate racial desegregation 

transfers.” Id. By the time of trial, GBOE had failed to vote on a transfer policy 

despite binding court precedent requiring that it do so. Id. at 144-45. As a result, 

the GBOE superintendent was unable to say which of the many draft inter-district 

transfer policies might be implemented by the Board. Id. at 145. The District 

Court explained that “[t]his official action—or lack thereof—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.

GBOE adopted a similarly evasive approach toward its inclusion of the 

North Smithfield community in the separation plan. According to the December 

2015 separation plan, North Smithfield students “will be able to attend Gardendale 

schools for the indefinite future.” Id. at 149. But no GBOE representative ever 

explained the meaning of the term “indefinite future” to the North Smithfield 

community. Id. at 150. At trial, the superintendent and a member of GBOE 

testified that, in their understanding, the phrase meant that North Smithfield

18



students could attend Gardendale schools so long as their tax dollars flow to the 

Gardendale school system. Id. However, the desegregation order in this case 

provides the sole mechanism by which tax dollars from North Smithfield can flow 

to Gardendale. Thus, if Gardendale is released from the desegregation order—a 

position for which its counsel advocated below, see, e.g., Doc. 1090; Doc. 1104;

—students from North Smithfield have no assurance that they will continue to 

attend the schools that they have attended for nearly five decades. See Doc. 1141 

at 150.

Furthermore, GBOE has never voted on the separation plan that includes

North Smithfield students despite the fact that Gardendale’s counsel submitted it to

the District Court. Id. at 149. As the District Court explained:

Rather than make a commitment to the students in North Smithfield, 
the Gardendale Board has been waiting to see whether its attorneys 
could persuade the Court that the 1971 desegregation order does not 
govern Gardendale’s separation. If Gardendale does not need the 
students from North Smithfield to separate, then the Board has no 
incentive to keep those students in the Gardendale system.

Id. at 149-50. By delaying a vote, GBOE has “allowed itself the flexibility” to

change its separation plan and exclude the predominantly Black students from

North Smithfield. Id. at 150.

In sum, the District Court found that GBOE was created for, and operated 

with, the goal of excluding Black children from the school district. As such, the 

District Court found that Gardendale’s separation from Jefferson County

19



constituted an independent constitutional violation under the Fourteenth 

Amendment. Id. at 180.

B. Gardendale’s Failure to Carry Its Burden Under Established 
Precedent as to the Effect of Its Secession on Desegregation 
Efforts in Jefferson County

Even absent the compelling evidence of intentional discrimination described 

above, the District Court could not grant GBOE’s separation motion unless it made 

the “essentially factual determination” that Gardendale’s separation would not 

impede JCBOE’s desegregation efforts. Wright, 407 U.S. at 470; see Doc. 1141 at 

150-80. As the party petitioning to separate, GBOE bore the burden of proof on 

this issue. See id. at 162. “Consistent with Wright, to determine whether 

Gardendale has carried its burden,” the District Court examined three factors: 

“anticipated post-separation racial demographics, facilities and the programs 

available in those facilities, and the message that Gardendale’s proposed separation 

sends to African-American students who have attended schools in the Gardendale 

zone pursuant to this Court’s desegregation order.” Id. at 163. As the court 

determined, each of these factors weighed against granting Gardendale’s motion to 

separate. See id. at 162-80.

First, the court determined that Gardendale’s separation would have a 

negative impact on the post-separation racial demographics of Jefferson County 

and would inflict a series of related, collateral consequences on the county. Id. at

20



162-63. If Gardendale separated, JCSD’s student population would immediately 

become 1.5%-1.8% more Black. Id. at 165. Further as the District Court found, 

this initial impact understates the demographic consequences of the separation 

because every previous splinter district from Jefferson County subsequently 

annexed additional white communities. Id. at 166. “[T]hese separations and 

annexations have altered the racial composition of the Jefferson County student 

population continually since 2000.” Id. Because the districts that have seceded 

and the areas they have annexed tend to be affluent and “produce significant tax 

income” for the county, the process of secessions and annexations “has repeatedly 

shifted the geographic, demographic, and economic characteristics of Jefferson 

County.” Id. These changes significantly complicate JCBOE’s efforts to plan and 

to comply with its desegregation obligations. Id. at 166-67. And, consistent with 

previous school districts that have seceded, Gardendale has already evinced an 

interest in annexing Mount Olive and other predominantly white communities 

north of the municipal limits. Id.

GBOE’s separation would also cause the JCSD students who are removed 

from the proposed Gardendale zone to leave their modestly desegregated schools 

in Gardendale and attend schools that are “extremely segregated.” Id. The burden 

of this move would fall most heavily on Black students. Id. The separation would

2 1



also harm the Black students who currently attend Gardendale schools as 

desegregation transfers but would be excluded under GBOE’s separation plan. Id.

Second, the court determined that the loss of programs and facilities 

attendant to Gardendale’s separation would have an adverse effect on JCBOE’s 

desegregation obligations. See Doc. 1141 at 168-74. Gardendale High School is 

an integrated high school with unique facilities and programs—including one of 

the county’s best career tech programs. Id. at 170, 171-72. If GBOE appropriated 

the high school, it would cost JCBOE at least $55 million to build a new 

comparable facility, thereby depriving the county of money it could otherwise 

spend on facilities or programming.6 Id. at 171-72. The loss of Gardendale High 

School would also thwart JCBOE’s ability to obtain the important desegregation 

objective of closing the nearby Fultondale High School—an outdated facility that 

was built for Black students when JCSD was still a de jure racially-segregated 

school system. See Id. at 69 n.26.

While the middle and elementary school facilities in Gardendale are older, 

these schools have also played an important role in JCBOE’s desegregation efforts 

because many Black students have chosen to attend them through JCBOE’s

6 Alabama state law concerning the transfer of facilities in school district 
separations requires the “same or equivalent school facilities” for students who are 
excluded from the new municipal school district and remain in the county school 
system. Ala. Code §16-8-20.

22



majority-to-minority desegregation transfer program. Id. at 174. Because 

Gardendale is adjacent to many African American communities, its schools are the 

best transfer option for many Black students who wish to attend schools, like Snow 

Rogers Elementary, Gardendale Elementary, and Bragg Middle School, with 

superior academic track records for Black students. See id.

Third, the court determined that the review prescribed by Wright—the 

timing of the decision to separate and the message that separation will send to the 

impacted Black students—militated against the approval of Gardendale’s 

separation. “During Gardendale’s separation effort, both words and deeds have 

communicated messages of inferiority and exclusion. The message cannot be lost 

on children who live in North Smithfield.” Doc. 1141 at 175. As detailed above, 

the message sent to Black children from North Smithfield and Center Point was 

unequivocal, humiliating, and demeaning. At different times, these children were 

described as the “bitter pill” Gardendale residents needed to swallow, or the 

“price” Gardendale had to pay, in order to separate. Id. They were told by white 

residents that the Gardendale schools that Black children had attended for fifty 

years were “OUR schools”—not theirs—and that they should have been removed 

long ago. Id. at 130, 176. Integrated or majority-Black communities were held up 

as a cautionary tale of what Gardendale residents “don’t want to become.” Id. at 

177.

23



The predominantly Black North Smithfield students were used as a pawn in 

Gardendale’s plans to create a whiter school district: they were excluded from the 

new district when Gardendale believed that route was permissible and then 

included (as the “bitter pill”) when Gardendale decided it needed more Black 

students to meet its desegregation obligations. And the Gardendale Board 

amplified these exclusionary messages, refusing to vote on plans or policies that 

might contribute to the matriculation of Black students to Gardendale’s schools.

As the District Court determined, “[t]he message from separation organizers and

from the Gardendale Board is unmistakable___The message is intolerable under

the Fourteenth Amendment___The messages of inferiority in the record of this

case assail the dignity of black school children.” Id. at 179-80.

III. The District Court’s Orders Permitting Gardendale to Secede from 
Jefferson County

On April 24, 2017, the District Court issued a 190-page opinion granting in 

part, and denying in part, Gardendale’s motion to separate. The court recognized 

that a new district seeking to secede from a parent district operating under a 

desegregation order “must demonstrate that its operation will not harm the parent 

district’s effort to fulfill its obligation to eliminate the vestiges of segregation to the 

extent practicable.” Doc. 1141 at 162 (citing Wright, 407 U.S. at 459). The court 

also recognized that Gardendale had failed to meet this burden and that Gardendale

24



had created and operated a municipal school district for the purpose of excluding 

Black school children. Id. at 138, 150, 161-62, 178-80.

Nonetheless, the District Court ruled that it would permit Gardendale to 

operate a new elementary-only school system that put it in charge of numerous 

Black schoolchildren based on four “practical considerations.” Id. at 181. The 

court’s decision was premised on its view that Gardendale’s failure to satisfy its 

burden of proof gave the court the option to deny Gardendale recognition, but did 

not mandate that result. Id. at 162. The court did not, however, identify any case 

in which a splinter district failed to meet its legal burden but was still permitted to 

secede. Nor did the court identify any case in which a city violated the Fourteenth 

Amendment by creating a school district with a racially discriminatory purpose, 

but nonetheless was allowed to create and operate a new district.

Under the terms of the District Court’s order, Gardendale may operate Snow 

Rogers Elementary School and Gardendale Elementary School beginning in 2017- 

2018; those schools would be zoned for students residing within Gardendale’s 

municipal boundaries. Id. at 184. The court further ordered the parties to develop 

a new desegregation order that would apply only to the nascent GBOE. Id.

JCBOE would continue to operate Bragg Middle School and Gardendale High 

School, but the court permitted GBOE to renew its motion to operate a K-12

25



system after three years if it maintained good-faith compliance with the new 

desegregation order.7 Id.

On May 2, 2017, Plaintiffs-Appellants moved the District Court to alter or 

amend its judgment. Doc. 1151 (“Pis.’ Am. Mot. to Alter or Am. J. and Mem.”). 

Plaintiffs-Appellants contended, inter alia, that the court’s remedy was foreclosed 

by the law of the case, that the remedy did not cure Gardendale’s constitutional 

violation, and that it gave the court’s imprimatur to Gardendale’s unconstitutional 

conduct. Id. at 14-24. The court denied Plaintiffs-Appellants’ motion on May 9, 

2017. Doc. 1152. On May 23, 2017, Plaintiffs-Appellants filed a notice of appeal 

and a motion to stay all proceedings. Doc. 1159; Doc. 1160. The same day, 

GBOE filed a notice of appeal, and joined in the motion to stay the proceedings. 

Doc. 1162 (“Transmittal to U.S. Court of Appeals, Eleventh Circuit”). On June 1, 

2017, the District Court stayed the relevant parts of its April 24, 2017 Order. Doc. 

1174.

IV. Standard of Review

Both issues presented in this appeal concern challenges to the District 

Court’s remedial order in this desegregation case. The factual findings of the 

District Court may not be set aside unless they are shown to be “clearly

7 The court’s order included several other components that are not relevant 
to the instant appeal. See id. at 185.

26



erroneous.” Fed. R. Civ. P. 52(a)(6). The court’s remedial order is reviewed for 

abuse of discretion. Stell v. Savannah-Chatham Cty. Bd. ofEduc., 888 F.2d 82, 83 

(11th Cir. 1989). However, “an error of law is an abuse of discretion per se.” 

Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000). A clear error of 

judgment also constitutes an abuse of discretion. See United States v. Whatley, 719 

F.3d 1206, 1219 (11th Cir. 2013).

SUMMARY OF THE ARGUMENT

Controlling precedent establishes a clear test for determining whether a 

newly created school district may secede from a parent district operating under a 

federal desegregation order: secession is permitted only if the formation of the 

new district will not impede the dismantling of the racially-discriminatory, dual 

school system in the parent district. The burden is on the proponents of the 

seceding district to show that desegregation efforts in the parent district will not be 

undermined. As this Court’s predecessor stated in a prior appeal in this very case, 

the “District Court may n o t. . . recognize [the] creation” of the splinter district if 

its proponents do not satisfy this burden. Stout v. Jefferson Cty. Bd. ofEduc., 448 

F.2d 403, 404 (5th Cir. 1971) (hereinafter “Stout F).

Here, the District Court correctly found that the proponents of secession in 

Gardendale had not met their burden of showing that the separation would not 

undermine desegregation efforts in Jefferson County. Yet, the court nonetheless

27



concluded that it had the remedial discretion to allow Gardendale to splinter a 

portion of its schools from Jefferson County. The District Court recognized that its 

ruling was inconsistent with Stout /, but concluded that Stout I  had been overruled 

in relevant part by Wright v. Council o f Emporia, 407 U.S. 451 (1972). That was 

clear error. Wright not only cited Stout I  with approval, it specifically endorsed the 

holding of Stout I, i.e., “a new school district may not be created where its effect 

would be to impede the process of dismantling a dual system.” Id. at 470. That 

rule has likewise been reaffirmed in binding Fifth Circuit precedent since Wright. 

Because Gardendale failed to show that its request to secede would not undermine 

desegregation in Jefferson County, the only remedial option available to the 

District Court was to deny Gardendale’s secession request in its entirety.

The District Court’s order must also be reversed because Gardendale’s 

secession was motivated by intentional discrimination. The District Court 

unambiguously found that Gardendale’s secession was motivated by the desire to 

exclude Black children from its schools, and that its separation effort violated the 

Fourteenth Amendment. Consequently, Gardendale’s actions have “no legitimacy 

at all under our Constitution,” City o f Richmond v. United States, 422 U.S. 358,

378 (1975), and its secession may not be permitted. In sum, one cannot cure the 

constitutional infirmity inherent in the creation of a public-school system for the

28



purpose of excluding Black children by allowing the formation of a school system 

created for the purpose of excluding Black children.

ARGUMENT

I- Recognition of the Gardendale School District Is Foreclosed by Binding
Precedent and by the Law of the Case.

The District Court correctly determined that Gardendale failed to prove that 

its separation would not impede the desegregation of Jefferson County’s schools. 

Doc. 1141 at 158-59. Under controlling law, that should have been the end of the 

matter. As the District Court recognized, the Fifth Circuit’s decision in Stout I 

‘“did not give the trial court a choice as to whether it ‘may or may not’ recognize 

[a] splinter district’s creation’” where the district failed to meet its burden of proof. 

Doc. 1152 at 37 (citation omitted). Instead, “the district court may no t. .. 

recognize [its] creation.” Stout I, 448 F.2d at 404.

Yet, the District Court nonetheless allowed Gardendale to secede from the 

Jefferson County School District. Although the court (temporarily) prohibited 

Gardendale from operating Gardendale High School or Bragg Middle School, it 

permitted Gardendale to separate from JCSD, create its own school district, and 

immediately begin operating Gardendale Elementary School and Snow Rogers 

Elementary School. Doc. 1141 at 185. The District Court concluded that it had 

the authority to permit Gardendale’s secession because it understood the Supreme 

Court’s decision in Wright to represent a “change in controlling authority” with

29



respect to a district court’s authority to recognize splinter districts. Doc. 1152 at 

37. The District Court further stated that it did “not believe it its [sic] bound under 

the law of the case doctrine to follow the mandatory language in Stout /.” Id. at 39.

But, as explained below, Wright did not overrule Stout I. Wright not only 

cites Stout I  favorably, the holding in Wright is indistinguishable from Stout /: “We 

hold . . . 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.

Wright certainly did not “directly overrule” Stout I. Fla. League o f Prof’l 

Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996). Consequently, Stout 

I—which barred the District Court from recognizing Gardendale both as a matter 

of precedent and under the law-of-the-case doctrine—remains binding case law.

See id.

Indeed, the holding of Stout I is enshrined in Fifth Circuit cases that 

postdated and expressly relied upon Wright. As stated in one of those cases: “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 

system in the old district.” Ross v. Houston Indep. Sch. Dist., 583 F.2d 712, 714 

(5th Cir. 1978) (citing, inter alia, Wright)', see also Stout v. Jefferson Cty. Bd. o f 

Educ., 466 F.2d 1213, 1215 (5th Cir. 1972) (hereinafter “Stout IF).

30



Because the District Court’s order is grounded in its misinterpretation of 

these controlling legal principles, its decision must be reversed. See Alikhani, 200 

F.3d at 734 (“an error of law is an abuse of discretion per se”).

A. Controlling Law Prohibits District Courts from Approving a 
Splinter District if the District Cannot Prove that Its Secession 
Would Not Undermine Desegregation Efforts in the Parent 
District.

The law governing seceding districts has its origins in North Carolina State 

Board o f Education v. Swann, a school desegregation case where the Supreme 

Court addressed the legality of a facially-neutral state law that prohibited the 

“[ijnvoluntary bussing of students.” 402 U.S. at 44 & n.l. In operation, the law 

obstructed a desegregation remedy ordered by a federal district court. The 

Supreme Court struck the law down, holding, “if a state-imposed limitation on a 

school authority’s discretion operates to inhibit or obstruct the . . . disestablishing 

of a dual school system, it must fall.” Id. at 45. Significantly, the Court did not 

hold that a district court had the discretion to determine whether or not to 

invalidate a law under these circumstances; the Court held that the law “must fall.” 

Id.

Two months later, the Fifth Circuit decided two cases that applied this 

principle in the context of a splinter district that sought permission to secede from 

a parent district operating under a desegregation order. See Lee v. Macon Cty. Bd. 

o f Educ., 448 F.2d 746 (5th Cir. 1971); Stout I, 448 F.2d 403. Both cases adopted

31



a legal standard consistent with the standard applied by Swann. In Lee, the Fifth 

Circuit addressed a desegregation dispute where a splinter district had asserted its 

independence from the parent district, and the district court had refused to 

recognize the splinter district as an independent school system. The Fifth Circuit 

agreed that the district court’s approach “was the proper way to handle the problem 

raised by [a splinter district]’s reinstitution of a separate school system.” Lee, 448 

F.2d at 752. Lee held that “[t]he city cannot secede from the county where the 

effect—to say nothing of the purpose—of the secession has a substantial adverse 

effect on desegregation of the county school district.” Id. As the Court observed, 

if such separations “were legally permissible, there could be incorporated towns 

for every white neighborhood in every city.” Id.

Seven days later, the Fifth Circuit decided Stout /, where it resolved the 

same issue in an earlier appeal from this case. In Stout I, the Court explicitly relied 

on Swann's rejection of “state-imposed limitation[s]” that “impede the 

disestablishing of a dual school system.” See Stout I, 448 F.2d at 404. Applying 

Swann to the splinter-district context, Stout I  held that “where the formulation of 

splinter school districts, albeit validly created under state law, have the effect of 

thwarting the implementation of a unitary school system, the district court may not 

•. . recognize their creation.” Id.

32



Within a year of the Fifth Circuit’s decision in Stout I, the Supreme Court 

decided Wright. 407 U.S. 451. The district court opinion in Wright aligned with 

Stout I, holding that “this Court must withhold approval [for a proposed splinter 

district] ‘if it cannot be shown that such a plan will further rather than delay 

conversion to a unitary, nonracial, nondiscriminatory school system.”’ Wright v. 

Sch. Bd. o f Greensville Cty., 309 F. Supp. 671, 680 (E.D. Va. 1970) (quoting 

Monroe v. Bd. o f Comm ’rs o f Jackson, 391 U.S. 450, 459 (1968)) (emphasis 

added). On appeal, the Fourth Circuit reversed, ruling that the district court could 

not deny recognition to the splinter district unless the “dominant purpose” of the 

proposed separation was discriminatory. See Wright, 407 U.S. at 461. The 

Supreme Court granted certiorari and reversed the Fourth Circuit’s decision. In so 

doing, the Supreme Court cited both Lee and Stout I  with approval, and held that 

the district court’s approach—which tracked Lee and Stout I— “was proper.” Id. 

at 462.

Wright made clear that the district court bore primary responsibility for 

determining the effect of a proposed separation “upon the process of 

desegregation,” and that rendering this “essentially factual determination” “is a 

delicate task that is aided by sensitivity to local conditions.” Id. at 466, 470. 

However, the Court made equally clear that once a district court balances the 

relevant factors and makes the factual determination that a proposed separation

33



will impede desegregation, the court is obligated to halt the splinter district: “We 

hold only that a new school district may not be created where its effect would be to 

impede the process of dismantling a dual system.” Id. at 470.

After Wright, the Fifth Circuit (in opinions that are controlling here)8 

continued to reaffirm the rule that district courts may not permit splinter districts if 

the effect would be to impede desegregation efforts in the parent district. Indeed, 

while the Supreme Court was considering Wright, Stout was remanded to the 

District Court, which dissolved the splinter district of Pleasant Grove because it 

stood as an impediment to the desegregation of Jefferson County’s schools. See 

Stout II, 466 F.2d at 1215. Pleasant Grove appealed, and the Fifth Circuit “held 

this case for the Supreme Court’s determination” in Wright. Id. Following the 

issuance of Wright, the Fifth Circuit “affirm[ed] the district court’s determinations 

as regards the splinter school districts.” Id. The panel noted that Wright had cited 

Lee and Stout I  “with approval,” and predicated its ruling on the Supreme Court’s 

decision in Wright “and its reliance on our prior Stout [I] order.” Id. It held that 

Pleasant Grove could not be recognized as a separate school district unless and 

until it “demonstrates to the district court’s satisfaction by clear and convincing

8 See Bonner v. City o f Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en 
banc) (adopting as binding precedent all decisions of the former Fifth Circuit 
handed down prior to October 1, 1981).

34



evidence that it” would not impede the desegregation of Jefferson County. Id. 

Stout II also reaffirmed Stout F s holding that a “district court may no t. . . 

recognize the[] creation ’ of a splinter school district if doing so would impede the 

parent district’s desegregation efforts. Id. at 1214. Thus, the Stout I standard that 

the District Court in this case found to have been “change[d]” by Wright, see Doc.

1151 at 36-37, was in fact expressly reaffirmed in a binding Circuit opinion that 

relied on Wright to reach its conclusion.

Six years later, the Fifth Circuit again reiterated the rule set forth in Stout I. 

In Ross v. Houston Independent School District, 583 F.2d 712 (5th Cir. 1978), the 

district court enjoined the creation of a splinter district where the parent district 

was “suffering from the ‘white flight’ phenomenon” and where formation of the 

proposed splinter district “would exacerbate this problem” and “act as a catalyst to 

increase white flight.” Id. at 715. The Fifth Circuit affirmed the district court’s 

ruling, and held that “[t]he 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.” Id. at 714 

(citations omitted). “In such a situation, the proponents of the new district must 

bear a heavy burden to show the lack of deleterious effects on desegregation.” Id. 

Because the proposed splinter district “had not borne that burden” in Ross, the 

district court was obligated to deny its separation request. See id.

35



B. The District Court Erred by Concluding that S to u t I  Is No Longer 
Good Law.

As the foregoing discussion makes clear, Stout I  was not overruled by 

Wright. On the contrary, Wright endorses Stout Ps (and Lee’s) holding, as do the 

Fifth Circuit’s subsequent decisions in Stout II and Ross. These cases stand for a 

simple proposition: a district court may not recognize a splinter district if doing so 

would impede desegregation efforts in the parent district. See Wright, 407 U.S. at 

467; Ross, 583 F.2d at 714; Stout II, 466 F.2d at 1214-15; Stout I, 448 F.2d at 404; 

Lee, 448 F.2d at 752.

The District Court acknowledged that Stout I prohibited district courts from 

recognizing a splinter district’s creation where it would impede the parent district’s 

desegregation efforts; however, the court believed that Wright overruled Stout 1 

and provided district courts with the discretion to recognize splinter districts even 

under those circumstances. See Doc. 1152 at 36-37, 39. The discussion in the 

previous section shows why that conclusion is untenable. More specifically, the 

District Court made three errors: it misinterpreted Wright, it failed to follow 

binding Fifth Circuit decisions postdating Wright in Stout II and Ross; and it failed 

to acknowledge that Stout I  and Stout II control the resolution of this issue because 

they are the law of the case.

First, the District Court misidentified Wright's governing legal standard. As 

discussed, Wright (like Stout I) held that a district court “may not” recognize a

36



splinter district if the district would impede desegregation efforts in the parent 

district: “We hold only 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. Despite its extensive reliance on Wright, the District Court failed to 

cite this unequivocal language setting forth Wright’s holding. See Doc. 1141 at 

158-83.

Instead, the District Court stated that the “pertinent part” of Wright, Doc.

1152 at 36, is the following statement: “a district court, in the exercise of its 

remedial discretion, may enjoin [the separation] from being carried out.” Wright, 

407 U.S. at 460. The District Court interpreted this statement as giving “the trial 

court a choice as to whether it ‘may or may not’ recognize a splinter district’s 

creation.” Doc. 1152 at 37. That interpretation is foreclosed by the unequivocal 

holding of Wright set forth above, and it fails to recognize the context in which the 

“may enjoin” statement appears in Wright. That statement was a response to the 

local officials’ argument on appeal: namely, that the City of Emporia was “a 

separate political jurisdiction entitled under state law to establish a school system 

independent of the county,” and therefore, “its action may be enjoined only upon a 

finding that” the state law is invalid, that the city boundaries were drawn to 

exclude African Americans, or that the racial disparity between the city and the 

county itself violated the Constitution. Wright, 407 U.S. at 459 (emphasis added).

37



In other words, this portion of the Court’s opinion refers to “the power of the 

district court to enjoin Emporia’s withdrawal” in the absence of an independent 

constitutional violation. Id.

In this context, the Court’s “may enjoin” statement in Wright conveys only 

that the district court had the authority to enjoin Emporia in the absence of “an 

independent constitutional violation” so long as its separation “would impede the 

dismantling of the dual system.” Id. at 459, 460. At this point in the opinion, the 

Court had not yet addressed the question whether a district court must bar the 

creation of a splinter district if that district’s secession would impede desegregation 

efforts in the parent. The court’s focus was limited to the question of whether a 

district court could bar the creation of a splinter district that was valid under state 

law. That Wright did not seek to alter the rule announced in Stout I  is confirmed 

by the language of Wright's holding and by its approving citation to the rule 

established in other federal courts—including Lee and Stout I—that “splinter 

school districts may not be created” where the effect of the separation impedes 

desegregation. Id. at 462; see id. at 470.

The District Court made an additional interpretive error in discussing 

Wright's statement that “‘[t]he weighing of these factors to determine their effect 

upon the process of desegregation is a delicate task that is aided by a sensitivity to 

local conditions, and the judgment is primarily the responsibility of the district

38



judge. Doc. 1152 at 36 (quoting Wright, 407 U.S. at 466) (additional citations 

omitted). The District Court erroneously read this statement from Wright as 

granting permission to a district court to choose “whether it may or may not 

recognize a splinter district’s creation.” Doc. 1152 at 37.

But, this passage from Wright does not describe a district court’s remedial 

discretion; it describes the district court’s fact-finding discretion. Specifically, the 

passage describes the process by which a district court should determine the effect 

of a secession “upon the process of desegregation.” This discussion comes at the 

conclusion of a section of the Wright opinion analyzing whether or not Emporia’s 

separation would affect the county school system’s desegregation efforts. See 

Wright, 407 U.S. at 466. There is no dispute that district courts are charged with 

this “essentially factual determination.” Id. at 470. And, here, the District Court 

made that “essentially factual determination” by determining that Gardendale 

failed to meet its burden of showing that its secession will not impede Jefferson 

County’s desegregation efforts. Doc. 1141 at 158-83. Having made that factual 

determination, the Supreme Court has established the sole remedy: the “new 

school district may not be created.” Wright, 407 U.S. at 470.

The District Court also erred by failing to recognize that it was bound by 

circuit authority postdating Wright. District courts within a circuit are bound by 

the precedent of that circuit, see In re Hubbard, 803 F.3d 1298, 1309 (11th Cir.

39



2015), and circuit precedent remains binding unless “a clearly contrary opinion of 

the Supreme Court” or the en banc court is issued. Main Drug, Inc. v. Aetna U.S. 

Healthcare, Inc., 475 F.3d 1228, 1230 (11th Cir. 2007) (citation omitted). Here, 

Stout II imposed the same legal standard as Stout I, and it did so subsequent to, and 

in reliance on, Wright. See Stout II, 466 F.2d at 1214 (“Likewise, where the 

formulation of splinter school districts, albeit validly created under state law, have 

the effect of thwarting the implementation of a unitary school system, the district 

court may no t. . . recognize their creation.”) (quoting Stout I, 448 F.2d at 404). 

Ross applied the same standard six years later. 583 F.2d at 714.

Ross and Stout II have never been overruled and remain binding Circuit 

precedent. See In re Hubbard, 803 F.3d at 1309. Even if Ross and Stout II had 

misinterpreted Wright (and they did not), they were binding on the District Court 

and are binding here unless overruled by this Court en banc or by the Supreme 

Court. Thus, the District Court was obligated to follow the rule established in 

Stout 1 and reaffirmed in Stout II and Ross. As the District Court itself 

acknowledged, this rule prohibited the creation of a new Gardendale School 

District. See Doc. 1152 at 37.

Finally, the District Court erred by failing to recognize that Stout 1 and Stout 

II govern the resolution of this issue because they are law of the case. Under the 

law-of-the-case doctrine, “‘[o]nce a case has been decided on appeal, the rule

40



adopted is to be applied, right or wrong, absent exceptional circumstances, in the 

disposition of the lawsuit.’” Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 

1984) (citation omitted); see also This That & the Other Gift & Tobacco, Inc. v. 

Cobb County, 439 F.3d 1275, 1283 (11th Cir. 2006) (“[T]he law-of-the-case 

doctrine bars relitigation of issues that were decided either explicitly or by 

necessary implication.”).

Here, Stout I  adopted the rule that a trial court “may no t. .. recognize the[] 

creation” of a splinter district where the separation would impede the 

desegregation efforts of the parent district. 448 F.2d at 404. Stout II then 

reaffirmed that rule. 466 F.2d at 1214-15. “When a court decides a question of 

law”—as the Fifth Circuit did in Stout I  and Stout II—the law of the case doctrine 

governs unless: 1) a subsequent trial produces new and substantially different 

evidence; 2) there has been a change in controlling authority; or 3) the prior 

decision was clearly erroneous and would result in a manifest injustice. See This 

That & the Other, 439 F.3d at 1283.

None of these exceptional circumstances apply here. As discussed, the 

District Court erred in concluding that “there was a change in controlling 

authority.” Doc. 1152 at 37. Wright did not overrule Stout I, and it could not have 

overruled Stout II, which was decided after Wright. The District Court similarly 

erred in concluding that “the fact that this case has sat dormant for years”

41



constituted a change in circumstances so as to satisfy the “manifest injustice” 

exception to the law-of-the-case doctrine. Doc. 1152 at 39.

The District Court offered no explanation for why the recent inactivity in the 

case would make it a “manifest injustice” to follow the rule set forth in Stout 1 and 

Stout II. The District Court’s reasoning is especially perplexing because, as that 

court recognized, some circumstances have not changed for Black students in 

Jefferson County: a half-century after Plaintiffs-Appellants filed this suit, 

Gardendale sought to create a splinter district motivated by its desire to “exclude 

from the district children who attend Gardendale schools by court order.” Doc.

1141 at 175. There is certainly no “manifest injustice” in refusing to recognize a 

district formed with the purpose of excluding African American children.

In sum, as a matter of both controlling precedent and the law-of-the-case 

doctrine, the District Court had no remedial discretion once it correctly found that 

Gardendale’s secession would impede desegregation efforts in Jefferson County.

Its only remedy was to deny Gardendale’s request in its entirety.

C. The “Practical Considerations” Identified by the District Court 
Do Not Support Its Remedial Order.

Because the District Court failed to recognize that its discretion was cabined 

by binding Supreme Court and Circuit case law, the court did not stop its inquiry 

after finding that Gardendale’s separation would impede the desegregation of 

Jefferson County. Instead, it concluded that four ad hoc “practical considerations”

42



supported the creation of a Gardendale splinter district, albeit one that initially 

encompasses only two of the four schools that Gardendale had sought to include in 

its new school district. Doc. 1141 at 180-83.

These “practical considerations” find no support in the precedent of this 

Court or the Supreme Court. Instead, the case law makes clear that the District 

Court’s prescribed role is to determine whether the splinter district has satisfied its 

burden of proof, and to reject its bid for secession if it has not. See Wright, 407 

U.S. at 467; Ross, 583 F.2d at 714; Stout II, 466 F.2d at 1214-15; Stout I, 448 F.2d 

at 404; Lee, 448 F.2d at 752.

The District Court’s contrary approach defeats the very purpose of the heavy 

burden of proof imposed on secession districts in this context. See Ross, 583 F.2d 

at 714 (stating that “proponents of the new district must bear a heavy burden to 

show the lack of deleterious effects on desegregation”); Stout II, 466 F.2d at 1215 

(the proponent of a splinter district in Jefferson County must “demonstrate[] to the 

district court’s satisfaction by clear and convincing evidence that it” would not 

impede the desegregation of the county). By its nature, the burden of proof 

ensures that district courts cannot recognize the creation of any new district unless 

that new district has presented persuasive evidence that doing so will not impede 

desegregation. That burden is consistent with the moral and constitutional 

imperative to desegregate our nation’s schools that had previously been subject to

43



de jure racial segregation, and the unfortunate reality that desegregation has still 

not been achieved in many counties well over a half century after Brown. Here, 

however, the District Court turned the burden on its head, permitting Gardendale to 

secede based on “practical considerations” even though Gardendale did not satisfy 

its significant burden.

The District Court’s approach is particularly problematic given the court’s 

finding that Gardendale’s request to secede was motivated by intentional 

discrimination. As the District Court found, the Gardendale school system was 

formed for the purpose of excluding Black children, Doc. 1141 at 143, 180-83, and 

“[t]he messages of inferiority in the record [from the separation organizers and 

from the Gardendale Board] assail the dignity of black school children.” Id. at 

180. The Supreme Court has made clear that “[t]he impact [of segregation] is 

greater when it has the sanction of law.” Brown v. Bd. ofEduc., 347 U.S. 483, 494 

(1954). Here, the District Court’s decision to recognize a Gardendale school 

district gave the “sanction of law” to Gardendale’s efforts to exclude Black 

children. In so doing, the court’s order exacerbates the message of inferiority 

conveyed by Gardendale’s actions. The Supreme Court and this Court’s 

predecessor have repeatedly denied splintering based on its effect on desegregation 

even absent any finding that the secession was motivated by discriminatory intent. 

See Wright, 407 U.S. at 467; Ross, 583 F.2d at 714; Stout II, 466 F.2d at 1214-15;

44



Stout /, 448 F .2d at 404; Lee, 448 F.2d at 752. Those cases apply a fortiori when, 

as here, the secession was motivated by discriminatory purpose.

Finally, the “practical considerations” cited by the District Court are not 

only legally irrelevant given Gardendale’s failure to meet its burden, those 

considerations are unpersuasive on their own terms.

First, the District Court feared that denying Gardendale recognition will 

harm the plaintiff class because Gardendale families may blame Black students for 

the court’s decision. Doc. 1141 at 180. The Plaintiffs-Appellants respectfully 

reject the court’s efforts to define their self-interests, and assert that the plaintiff 

class’s interests are best served by refusing to recognize splinter districts that fail to 

advance desegregation in Jefferson County, and which were created for the 

purpose of excluding Black students.

Second, the District Court asserted that its remedy is intended to advance the 

interests of the 33,000 students in Jefferson County’s schools who do not attend 

Gardendale schools. Id. at 182. The District Court stated that Jefferson County 

may be approaching the end of its period of federal supervision—at least for some 

of the Green factors—and that denying Gardendale’s request may delay Jefferson 

County’s ability to achieve unitary status with respect to those factors. Id. at 182- 

83. But the District Court’s reasoning is speculative because the parties have 

neither collected the data necessary to make such a determination nor presented

45



such evidence to the court. Doc. 1114. Asa result, the court lacked the record 

necessary to address this subject. See Ross, 583 F.2d at 714; Stout II, 466 F.2d at 

1214. Indeed, after Gardendale’s superintendent Dr. Patrick Martin toured eleven 

Jefferson County schools in November 2015, he provided the following assessment 

of Jefferson County’s progress to the Gardendale Board: “Our team’s takeaways 

from the week are that (1) if Jefferson County really does aim to gain Unitary 

Status there is going to be an excessive amount of work to be done across the 

entirety of the county, and (2) we need to do everything to make sure we are not 

lumped into that process.” Doc. 1141 at 110. Notably, Jefferson County was a 

party to the litigation below and opposed recognition for Gardendale. See Doc. 

1093 (“JCBOE Obj.to the Proposed Plan for Separation of the Gardendale Sch. 

System”).

Third, the District Court stated that it was attempting to honor the wishes of 

families in Gardendale who wanted to splinter for reasons unrelated to racial 

discrimination, especially emphasizing statements from three Black residents of 

Gardendale at trial supporting Gardendale’s request to secede. See Doc. 1141 at 

183; Doc. 1152 at 25-30. However, only one of those three residents testified 

under oath; the statements of the other two residents were made after trial and, 

thus, are “not evidence.” Doc. 1152 at 29. Further, as the District Court 

acknowledged, Black residents of Gardendale “are not in the same position as the

46



parents of African-American students who live outside of the City of Gardendale,” 

as they would not be excluded from Gardendale’s schools. Doc. 1152 at 29. The 

wishes of three Black residents in Gardendale cannot override the constitutional 

rights of Black students in Jefferson County who do not live in Gardendale and 

who continue to attend a school district characterized by the vestiges of de jure 

segregation.

In any event, as Wright made abundantly clear, “[t]he existence of a 

permissible purpose” that the District Court identified from the commentary of 

three Black Gardendale residents “cannot sustain an .. . impermissible effect.” 

Wright, 407 U.S. at 462; cf. United States v. Tex. Educ. Agency, 579 F.2d 910, 914- 

15 (5th Cir. 1978) (holding that the “intent” in desegregation cases that violates the 

Constitution is the intent to maintain segregated schools, which “is not excusable 

on the ground that such treatment was inspired by benevolent motives”) (citation 

omitted). Thus, even if Gardendale’s motivations were completely benign—and, 

as discussed above, the motivations of the city as a whole were decidedly not 

benign—that could not justify the deleterious effects of its secession.

Fourth, the District Court referenced “the interests of [ ] students” from 

three communities that attend Gardendale schools but do not live inside the 

municipal boundaries. Doc. 1141 at 184. But the court did not even attempt to 

explain how the interests of students from those communities were advanced by

47



allowing Gardendale to secede. Two of the communities intervened below (the 

Cities of Graysville and Brookside on behalf of their residents attending 

Gardendale schools), as did two residents from the third community 

(unincorporated Mr. Olive). Id. at 133. All three opposed Gardendale’s 

separation. See Doc. 1056; Doc. 1057. Further, while the court noted that these 

students’ interests “particularly” “relate[d] to the new Gardendale High School,” 

Doc. 1141 at 184, this concern does not support the court’s decision to recognize 

Gardendale. At present, Jefferson County has retained control of Gardendale High 

School under the District Court’s remedy, as it would have done if the court had 

denied Gardendale’s separation motion entirely. Students from these communities 

will continue to attend Gardendale High School just like they did before. If, 

however, the court permits Gardendale to separate entirely in three years—a 

possibility discussed by the court, see id. at 186—these students will be harmed 

when Gardendale High School is no longer a part of Jefferson County Schools.

Finally, in its supplemental opinion, the District Court alluded to the need 

for Jefferson County and Gardendale “to heal.” Doc. 1152 at 28. But, there is no 

“healing” for Black students when a court provides legal sanction to the “messages 

of inferiority” sent by the separation organizers and the Gardendale school board, 

messages which “assail the dignity of black school children.” Doc. 1141 at 180.

48



Nor is the community healed when a splinter district jeopardizes desegregation 

efforts in the county.

Under the law, courts cannot consider the effect that remedying a 

constitutional violation in a desegregation case will have on public sentiment, 

public relations, or public peace in the community. See Cooper v. Aaron, 358 U.S. 

1,16 (1958). To be sure, this case does not involve violent resistance to 

desegregation, but Cooper stands broadly for the proposition that dissatisfaction 

and even conflict cannot trump the constitutional imperative to desegregate. See, 

e.g., Calhoun v. Bd. ofEduc. o f Atlanta, 188 F. Supp. 401, 408 (N.D. Ga. 1959) 

(citing to Cooper for the proposition that that the “possibility of threat of friction or 

disorder among pupils or others” cannot be a rationale to avoid a desegregation 

plan). For similar reasons, concerns about white flight—while they “may be cause 

for deep concern”—cannot “be accepted as a reason for achieving anything less 

than complete uprooting of the dual public school system.” United States v. 

Scotland Neck Bd. ofEduc., 407 U.S. 484, 491 (1972).

In sum, Gardendale did not meet its burden to show that its separation would 

not impede desegregation efforts in Jefferson County. Under controlling 

precedent, that meant the only permissible remedy was to deny Gardendale’s 

motion in its entirety. The District Court’s contrary determination rests on both an 

error of law (its misinterpretation of precedent), and a clear error of judgment with

49



respect to its analysis of “practical considerations” as a justification for its wholly 

inappropriate remedy. One of those practical considerations was squarely 

foreclosed under the law; the other three considerations involved the District Court 

asserting that the “true” interests of three parties to this litigation were antithetical 

to the positions adopted by the parties themselves. As a result, the District Court’s 

order constitutes an abuse of discretion, and it should be reversed. See 

Alikhani, 200 F.3d at 734; Whatley, 719 F.3d at 1219.

II. The District Court’s Finding of Intentional Discrimination Constitutes
an Additional Basis for Denying Gardendale’s Request to Secede from
Jefferson County.

As clearly stated above, the controlling precedent dictates a reversal of the 

District Court’s order. A reversal is also indubitably mandated by the District 

Court’s independent finding that Gardendale intentionally discriminated against 

Black children in its attempt to separate from the larger Jefferson County School 

District. In order to enjoin a seceding school district, a district court does not have 

to find intentional discrimination. See Part I, supra; see also Lee v. Chambers Cty. 

Bd. ofEduc., 849 F. Supp. 1474, 1486 n.6 (M.D. Al. 1994). However, when a 

district court does make incontrovertible factual findings of unconstitutional

50



intentional racial discrimination against Black schoolchildren, as the court did 

here, it must provide a remedy that wholly rectifies that unconstitutional conduct.

As the Supreme Court has explained, “[a]n official action . . . taken for the 

purpose of discriminating against Negroes on account of their race has no 

legitimacy at all under our Constitution.” City o f Richmond v. United States, 422 

U.S. 358, 378 (1975). That rule is dispositive here. The District Court found that 

“race was a motivating factor in Gardendale’s decision to separate from the 

Jefferson County public school system.” Doc. 1141 at 138. “The record 

demonstrates that the Gardendale Board is trying to evade the Court’s 

desegregation order because some citizens in Gardendale want to eliminate from 

Gardendale’s schools the black students whom Jefferson County transports to 

schools in Gardendale.” Id. As such, Gardendale’s actions have “no legitimacy at 

all under our Constitution.” Richmond, 422 U.S. at 378. Indeed, the District Court 

recognized that Gardendale’s separation effort was, in and of itself, both “subject 

to the Equal Protection Clause of the Fourteenth Amendment” and violative of that 

clause. Doc. 1141 at 180n.90.

Because the District Court went further than necessary and found an 

independent constitutional violation, Supreme Court precedent required a remedy 

that “closely fit the constitutional violation,” and would “place persons 

unconstitutionally denied an opportunity or an advantage ‘in the position they

51



would have occupied in the absence o f ” Gardendale’s unconstitutional conduct. 

United States v. Virginia, 518 U.S. 515, 547 (1996) (quoting Milliken v. Bradley, 

433 U.S. 267, 280 (1977)).9 The District Court did not provide such a remedy 

here. Instead, the court permitted Gardendale to open a new school system whose 

creation was motivated by intentional racial discrimination. To be sure, the 

District Court only permitted Gardendale (at least initially) to operate two of the 

four schools it had sought, but this does not remedy the constitutional violation. In 

the absence of Gardendale’s discrimination, Black schoolchildren who attend 

Gardendale schools would be under the supervision of the Jefferson County Board 

of Education, which was not just created for racially discriminatory reasons, but 

instead is endeavoring under court order to desegregate its schools. Under the 

District Court’s Order, that will no longer be true. In addition, far from remedying 

the message of inferiority sent to Black students by Gardendale’s separation 

efforts, the District Court gave it legal sanction. See Doc. 1141 at 185-87.

The Court’s remedy was also improper because it fails to bar like 

discrimination in the future. See Green v. Cty. Sch. Bd. o f New Kent, 391 U.S. 430,

9 “School district lines and the present laws with respect to local control[ ] 
are not sacrosanct and if they conflict with the Fourteenth Amendment, federal 
courts have a duty to prescribe appropriate remedies.” Milliken v. Bradley, 418 
U.S. 717, 744(1974).

52



438 n.4 (1968) (courts have ‘“not merely the power but the duty to render a decree 

which will so far as possible eliminate the discriminatory effects of the past as well 

as bar like discrimination in the future”’) (citation omitted); see also Virginia, 518 

U.S. at 547 (noting that the proper remedy for unconstitutional exclusion aims to 

bar similar discrimination in the future). The District Court’s order leaves the 

Gardendale Board of Education in a position of authority that it would not occupy 

were its motion denied. In so doing, the court’s order conveys a powerful message 

to other municipalities that they may be permitted to secede in the future even if 

their secession is motivated by intentional racial discrimination in violation of the 

Fourteenth Amendment.

Appellants respectfully submit that this Court cannot allow Gardendale’s 

discriminatory conduct to remain without an adequate remedy—especially in this 

case, with its past history of de jure racial segregation in Jefferson County. 

Affirming the District Court’s approval of a separate Gardendale school district not 

only eviscerates the longstanding precedent that a discriminatory effect prohibits 

the creation of splinter district, but also would permit discriminatory intent to be 

ignored in the creation of a splinter district. This Court, therefore, must act now to 

protect the constitutional rights of Jefferson County’s Black children and ensure 

that every child is afforded educational opportunities that are free from 

discrimination.

53



CONCLUSION

For the foregoing reasons, Plaintiffs-Appellants respectfully request this 

Court to reverse the District Court’s approval of a new Gardendale School District.

Respectfully Submitted,

/s/ Monique N. Lin-Luse 
SHERRILYN 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

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

54

mailto:mlinluse@naacpldf.org
mailto:clemonu@bellsouth.net
mailto:ckemmitt@naacpldf.org


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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

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CERTIFICATE OF SERVICE

I hereby certify that on August 7, 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/ Catherine B. Simpson 
Counsel Press 
1011 East Main Street 
Richmond, VA 23219 
(804) 648-3664

Filing and service were performed by direction of counsel

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