Elston v. Talladega County Board of Education Brief for Appellants

    In the

t

UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 89-7104

QUINTIN ELSTON, et al.,
Plaintiffs-Appellants, 
vs.

TALLADEGA COUNTY BOARD OF EDUCATION, et al.
Defendants-Appellees.

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

BRIEF FOR APPELLANTS

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
JANELL M. BYRD

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

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

Counsel for Plaintiffs-Appellants



CERTIFICATE OF INTERESTED PERSONS
Pursuant to Eleventh Circuit Rule 28-2(b) the undersigned 

counsel of record certifies that the following is a complete list 
of all trial judges in the proceedings in Elston v. Talladega 
Countv Board of Education. CV-88—J—2052-E, and of all attorneys, 
persons, associations of persons, firms, partnerships, or 
corporations that may have an interest in the outcome of these 
proceedings.

Hon. James H. Hancock is the trial judge in this matter. 
Hon. William M. Acker is the district court judge in a related 
case, Lee v. Macon County Board of Education (Talladega County), 
No. 88-7471, currently pending before this court.-

Counsel for plaintiffs are Janell M. Byrd, and Cleophus 
Thomas, Jr. of the law firm Reid & Thomas. The district court 
denied admission pro hac vice to Julius L. Chambers and Norman J. 
Chachkin, who now serve in an of counsel position on this case.

Counsel for defendants are Ralph Gaines, Jr. and George C. 
Douglas of the law firm Gaines, Gaines & Gaines.

Plaintiffs in the case are Quintin Elston, Rhonda Elston, 
and Tiffanie Elston, all minor children, by and through their 
parents and guardians, Augustus Elston and Cardella Elston; 
Ernest Jackson and Rayven Jackson, both minor children, by and 
through their parents and guardians, Rollen Jackson and Helen 
Jackson; Wendell Ware, a minor child, by and through his parent 
and guardian, John W. Ware; Jeffrey Morris, a minor child, by and 
through his parent and guardian Lela Morris; Vernon Garrett, a 
minor child, by and through his parent and guardian, Estella 
Garrett; Delicia Beavers and Loretta Beavers, both minor 
children, by and through their parent and guardian, Dorothy 
Beavers; Carla Jones and Paul Jones, both minor children, by and 
through their parents and guardians, Willie Jones and Bertha 
Jones; Lecorey Beavers, a minor child, by and through her parent 
and guardian, Ronnie Beavers; Stephanie Y. Hill, a minor child, 
by and through her parent and guardian, Connally Hill; Jacques 
Turner, a minor child, by and through his parents and guardians, 
William Tuck, Jr. and Veronica Tuck; Danielle Jones, a minor 
child, by and through her parent and guardian, Donald Jones; 
Torrance Beck, a minor child, by and through his parent and 
guardian, Albert Beck, Jr. ; Quinedell Mosley, a minor child, by 
and through his parent and guardian, Quinell Mosley; Kereyell 
Glover, a minor child, by and through his parent and guardian 
Deliah Glover; Tiffani Swain, Kedrick Swain, Terry Swain, and 
Donyae Swain, all minor children, by and through their parent and 
guardian, Gwendolyn Swain; Darius Ball and Kierston Ball, both 
minor children, by and through their parent and guardian Gwynethe 
Ball; Danien Garrett, a minor child, by and through his parent 
and guardian, Althea Garrett; Tonya Shepard, by and through her

1



parent and guardian, Mary Alice Jenison; Cora Tuck, a minor 
child, by and through her parent and guardian, Louise Tuck; Jerrk 
Evans, a minor child, by and through his parent and guardian, 
Kate Evans; Montina Williams and Richard Williams, both minor 
children, by and through their parent and guardian, Angie 
Williams; Roslyn Cochran, a minor child, by and through her 
parent and guardian, Johnnie Cochran; Quinton Morris, Datrea 
Morris, both minor children, by and through their parent and 
guardian Willie Morris7 on behalf of themselves and all other 
similarly situated black children in the Talladega County School 
System.

Defendants are the Talladega County Board of Education, 
Lance Grissett, Dan Limbaugh, Larry Morris, M.R. Watson, Gay 
Langley, and Beulah Garrett.



STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Eleventh Circuit Rule 28-2(c), plaintiffs- 
appellants request oral argument because the issue raised by this 
appeal is of substantial importance in that it involves a 
challenge to construction of a new school in Talladega County 
Alabama on the ground that defendants' school closing and new 
construction plan is racially discriminatory.

iii



TABLE OF CONTENTS

Certificate of.Interested Persons ..................... i
Statement Regarding Oral Argument ..................... iii
Table of Contents .....................................  iv
Table of Authorities ..................................  vi
Jurisdiction ..........................................  1
Issue Presented For Review . . . .........................  1
Statement of the Case ............................... . • 2

Origins of this Litigation ....................... 2
The Present Action ...............................  4 •
District Court's Order ........................... 6

Scope of Review .......................................  6
Summary of the Argument ................................ 6
ARGUMENT ...................................... ........ ' 9
I. Legal Standards For Preliminary Injunctive

Relief ..........................................  9
II. Plaintiffs Have A Substantial Likelihood Of

Success On The Merits.............................  9
A. The District Court Abused Its Discretion In

, Denying The Preliminary Injunction Before
Plaintiffs Had An Opportunity To Get Needed 
Discovery....................................  9

B. The District Court Abused Its Discretion In 
Denying The Motion For Preliminary Injunction 
Based Upon Its Gross Mischaracterization Of The
Claim........................................  12

C. The District Court Abused Its Discretion In 
Rejecting The Breach of Contract Claim As
A Proper Legal Basis For The Relief
Sought.......................................  14

Page

iv



TABLE OF CONTENTS-CONTINUED

D. The District Court Abused Its Discretion In 
Concluding That Only Evidence After March 13,
1985 Is Relevant To Plaintiffs' Claims .....  16

E. Facts Produced Thus Far Show A Substantial
Likelihood Of Success On The Merits.........  17
1. Pattern of Closing Historically

Black Schools .......................... 19
2. Failure to Enforce Attendance Zones,

Allowing White Students To Avoid 
Historically Black Talladega County
Training School ........................ 22

3. The Exclusion of Black Parents From 
the Board's Decision-Making Process 
Supports Plaintiffs' Claims of
Racial Discrimination .................. 25

4. Failure to Consider Expanding and
Enhancing The Training School .........  26

III. There Is A Substantial Threat That Plaintiffs Will 
Suffer -Irreparable Injury If an Injunction
Id Not Issued......................•............... 27

IV. Harm to Plaintiffs Outweighs Any Harm to
Defendants .......................................  29

V. A Preliminary Injunction Would Serve the
Public Interest ...................................  29

CONCLUSION ............................................  3 0

Page

v



TABLE OF AUTHORITIES

Cases Page
Allen v. Alabama State Board of Education, 816 F.2d

575 (11th Cir. 1987) .............................  14
Armstrong v. Board of School Directors, 616 F.2d 305

(7th Cir. 1980)   14
Arvizu v. Waco Independent School District, 495 F.2d

499 (5th Cir. 1974)    13
A Quaker Action Group v. Hickel, 421 F.2d 1111

(D.C. Cir. 1969)   28
Alexander v. Choate, 469 U.S. 661 (1985) ............. . 19
American Fed. of Gov. Employees, Loc. 1858

v. Calloway, 398 F. Supp. 176 (N.D. Ala. 1975) ... 28
Bankers Mortgage Company v. United States, 423

F.2d 73 (5th Cir.), cert, denied, 399 U.S.
927 (1970) . . . .'...................................  15

Beauboeuf v. Delgado College, 303 F. Supp. 861
(E.D. La. 1969), aff'd per curiam. 428 F.2d- 470 _
(5th Cir. 1970)   11

*Bell v. West Point Municipal Separate School
District, 446 F. 2d 1362 (5th Cir. 1971) .........  13

*Bob Jones University v. United States, 461 U.S.
574 (1983)   8,26

Bonner v. City of Prichard, 661 F.2d 1206 (11th
Cir. 1981) (en banc) ......................    13

Bossier Parish School Board v. Lemon, 370 F.2d 
847, 850 (5th Cir.), cert, denied, 388 U.S.
911 (1967)   15

Brice, v. Landis, 314 F.Supp. 974 (N.D. Cal. 1969) ....  13
Bronson v. Board of Education of Cincinnati, 687 F.2d

836 (6th Cir. 1982)   17
Bronson v. Board of Education of Cincinnati, 525 F.2d 

344 (6th Cir. 1975), cert, denied, 425 U.S.
934 (1976)   17

vi



TABLE OF AUTHORITIES-CONTINUED

Calhoun v. Cook, 430 F.2d 1174 (5th Cir. 1970) ..... . . 29
Central Alabama Paving, Inc. v. James, 499

F. Supp. 629 (M.D. Ala. 1980) .................... 28
*Cisneros v. Corpus Christi Independent School Dist.,

459 F. 2d 13 (5th Cir. 1972) ...................... 29
Clark v.Board of Educ. of Little Rock, 449 F.2d 493 

(8th Cir. 1971), cert, denied. 405 U.S. 936
(1972) ...........................................  29

Consolidated Rail Corp. v. Darrone, 465 U.S.
624 (1984) ....................................... ■ 19

Dillard v. Crenshaw, Civ. No. 85-T-1332-N (M.D.
Ala.) ............................................  25

*Eatmon v. Bristol Steel & Iron Works, Inc., 769
F. 2d 1503, 1514-17 (11th Cir. 1985.) .............  15

Georgia State Conference of Branches of NAACP v.
State of Georgia, 775 F.2d 1403 (11th Cir.
1985) ............................................  19

Green v. School Board of Roanoke, 316 F.Supp. 6 (W.D.
Va'. 197 0) , aff'd sub nom. Adams v. School District
No. 5, Orangeberg, 444 F.2d 99 (4th Cir. 1971),
cert, denied. 404 U.S. 912 (1971)   13

Page

Golden State Bottling Co. v. NLRB, 414 U.S. 168
(1973) ...........................................  24

Guardians Ass'n v. Civil Service Comm'n of New
York City, 463 U.S. 582 (1983) ................... 19

Harkless v. Sweeny Independent School District, 554
F. 2d 1353 (5th Cir. 1977) ........................ . 18

Henry v. Greenville Airport Commissioner, 284 F.2d
631 (4th Cir. 1960) ..............................  28

Humble Oil & Refining Company v. American Oil Company,
259 F. Supp. 559 (E.D. Mo. 1966) ................  16

- vii -



Illinois Migrant Council v. Pilliod, 398 F. Supp.
882 (N.D. 111. 1975), aff'd. 540 F.2d 1062 
(7th Cir. 1976), aff'd in part by equally 
divided court and rev'd in part on other grounds.
548 F. 2d 715 (7th Cir. 1977) (en banc) ......... . . 11

TABLE OF AUTHORITIES-CONTINUED
Page

Interstate Circuit v. United States, 306 U.S. 208
(1939) ...........................................  24

Jackson v. Carter Oil Company, 179 F.2d 524 (10th Cir.),
cert, denied. 340 U.S. 812 1950) ................  16

Johnson v. United States Department of Agriculture,
734 F. 2d 774 (11th Cir. 1984) .................... 6,9

Keyes v. School District No. 1, Denver, 413 U.S.
189 (1973) .......................................  18

*Lee v. Macon County Board of Education, 448 F.2d 746
(5th Cir. 1971)............................ 13,27

Local No. 93, International Association of Firefighters
v. City of Cleveland, 478 U.S. 501 (1986) . ....... 14

Los Angeles Branch, NAACP v. Los Angeles Unified
School District, 750 F.2d 731 (9th Cir. 1985) .... 17

McPherson v. School District No. 186, 426 F. Supp. 173
(S.D. 111. 1976)   13,15

Mammoth Oil Co. v. United States, 275 U.S. 30
(1927)   24

*Mitchell v. Cuomo, 784 F.2d 804 (2d Cir. 1984) .......  8,28
Nye & Nissen v. United States 336 U.S. 613

(1949)   18
Riddick v. School Board of Norfolk, 784 F.2d 521 

(4th Cir.), cert. denied. 479 U.S. 938
(1986)   7,16

Sloan v. Tenth School Dist. of Wilson County, 433
F. 2d 587 (6th Cir. 1970)   29

Swann v. Charlotte-Mecklenburg Board of Educ.,
402 U.S. 1 (1971)      29

v m  -



TABLE OF AUTHORITIES-CONTINUED

Page

United States v. Board of Education of Waterbury, 605
F. 2d 573 (2d Cir. 1979) .......................... 13

United States v. Fox, 211 F. Supp. 25 (E.D. La.
1962), aff'd. 334 F.2d 449 (5th Cir. 1964) ......  11

United States v. Timmons, 672 F.2d 1373 (11th Cir.
1985) ............................................  15

United States v. Texas Education Agency, 532 F.2d 
380 (5th Cir.), vacated on other grounds 
sub nom. Austin Independent School District 
v. United States, 429 U.S. 990 (1976), 
reaff'd on remand. 564 F.2d 162 (5th Cir.
1977)   13

Vaughns v. Board of Education of Prince George's
County, 574 F.Supp. 1280 (D. Md. 1983), aff'd in
part and rev'd in part on other grounds. 758 F.2d
983 (4th Cir. 1985)   14

♦Village of Arlington Heights v. Metropolitan
Hous. Dev. Corp., 429 U.S. 252 (1977) .... ..... . 17,26

Williams v. City of Dothan, 745 F.2d 1406
(11th Cir. 1984)       17

Constitutional Provisions
Fourteenth Amendment .................................  5,17

o

Statutes. Rules and Regulations:
28 U.S.C. § 1292 (a) (1) ................................  1
28 U.S.C. § 1331......................................  12

Title VI of the Civil Rights Act of 1964,
42 U.S.C. § 2OOOd, et seg......................... 15,18

ix



TABLE OF AUTHORITIES-CONTINUED

Fed. R. Civ.. P. 26(b)(1) .............................  11
Fed. R. Civ. P. 60(b) ................................  7,15
34 C.F.R. § 100.3 (b) (3) (1987) ......................... 18
Ala. Code § 36-12-40 (1975 & Supp. 1988) .............  22

Other Authorities
11 Wright & Miller, Federal Practice and

Procedure § 2948 .................................  28
U.S. Department of Health, Education and Welfare/

Office for Civil Rights, Directory of Public
Elementary and Secondary Schools in Selected
Districts. Enrollment and Staff by Racial/Ethnic
Group. Fall. 1968 (1970) ......................... 19

U.S. Department of Health, Education, and Welfare/
Office for Civil Rights, Directory of Public
Elementary and Secondary Schools in Selected
Districts. Enrollment and Staff by Racial/Ethnic
Group. Fall. 1970 (1972) ........... '. . ...........  20

Page

U.S. Department of Health, Education, and Welfare/
Office for Civil Rights, Directory of Public
Elementary and Secondary Schools in Selected
Districts. Enrollment and Staff by Racial/Ethnic
Group. Fall. 1972 (1974) ......................... 20

U.S. Department of Health, Education, and Welfare/
Office for Civil Rights, I Directory of Elementary
And Secondary School Districts, and Schools in
Selected School Districts: School Year 1976-1977
(1979) ........................................ . • • 20

U.S. Department of Education/Office for Civil Rights,
Directory of Elementary and Secondary School 
I Districts, and Schools in Selected School
Districts: School Year 1978-79 (1980) ...........  20

U.S. Department of Education/Office for Civil Rights
1984 Elementary and Secondary Schools Civil Rights 
Survey, School Summary: List of Schools By
District ..........................................  20

x



In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 89-7104

QUINTIN ELSTON, et al.,
Plaintiffs-Appellants, 
vs.

TALLADEGA COUNTY BOARD OF EDUCATION, et al.
Defendants-Appellees.

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

BRIEF FOR APPELLANTS 

Jurisdiction
On December 29, 1988, the district court denied plaintiffs'

motion for a preliminary injunction (Rl-13). This Court has 
jurisdiction over appeals from orders of district courts refusing 
to grant injunctions. 28 U.S.C. § 1292(a)(1).

Issue Presented For Review
Whether the district court abused its discretion in denying 

plaintiffs' motion for a preliminary injunction enjoining 
construction of a school, which was sought on the ground that 
defendants have engaged in a racially discriminatory pattern of 
closing formerly black schools while maintaining and enhancing



formerly white schools, culminating in their current plan to 
close part of the Talladega County Training School and construct 
a new school at the nearby site of a formerly white school.

Statement of the Case 
• Origins of this Litigation

In July of 1988, members of the class sought to be 
represented by plaintiffs in this action attempted to reopen a 
school desegregation case, Lee v. Macon County Board of Education 
(Talladega County) , No. 70-AR-0251-S, on the ground that 
defendants were violating outstanding court orders in that case, 
with which defendants had agreed to comply as a condition of 
dismissal of the action. The gravamen of the motion to reopen 
was that defendants, in an effort to avoid sending white children 
to schools that had historically been operated as black schools, 
had engaged in a racially discriminatory pattern of closing the 
schools, while historically white schools were being maintained 
and enhanced.1

Plaintiffs in Lee alleged that defendants were planning to 
close the elementary grades of one of the last functioning 
historically black schools in the County —  the Talladega County 
Training School —  and had allowed or condoned zone jumping by 
white students seeking to avoid attending the Training School in 
violation of the outstanding court order. The motion to reopen

1 Plaintiffs there filed a request for a preliminary 
injunction accompanied by requests for expedited discovery. See 
record and briefs on appeal in No. 88-7471 currently pending in 
this Court.

2



asserted that defendants' decision to rebuild a historically 
white school and close part of the Training School, rather than 
enlarge it to accommodate the children (black and white) who 
would attend the new school, was racially discriminatory. 
Plaintiffs in Lee sought to enjoin the new construction and the 
concomitant closing of the Training School, and to prevent the 
white students from avoiding the Training School by zone jumping. 
In sum, plaintiffs sought to maintain the Training School as a 
viable, integrated school in the Talladega County School System.

United States District Judge William Acker, believing that 
the court was without jurisdiction to reopen the action and that 
dismissal of the case "necessarily meant" that there were no 
longer any outstanding court orders restraining defendants' 
conduct, immediately denied plaintiffs' motions to reopen and for 
a preliminary injunction, and directed plaintiffs to pursue their 
claims in a new lawsuit. Plaintiffs appealed these rulings and 
requested an injunction pending appeal, which Judge Acker denied. 
Plaintiffs thereafter sought an emergency injunction pending 
appeal. That motion was denied by this Court on November 3, 
1988.2 The appeal on the merits of these issues is currently

2 In their emergency motion to this Court, Lee plaintiffs 
argued that they had a substantial likelihood of success on 
appeal on the issue whether the district court had jurisdiction 
to entertain the motion to reopen and to enforce the outstanding 
court orders with which defendants had agreed to comply as a 
condition of dismissal. Plaintiffs also asserted that the 
injunctive relief pending disposition was necessary in order to 
protect this Court's jurisdiction on appeal and to avoid mooting 
plaintiffs' claims during the pendency of the appeal. Those are 
not the arguments raised in this appeal. See infra at 8-26.

3



scheduled for oral argument in this Court on May 22, 1988, No.
88-7471.

The Present Action
On December 5, 1988, plaintiffs (members of the Lee class)

filed this new action (Rl-1). As in Lee. they sought a 
preliminary injunction prohibiting the new construction; they 
also specifically requested an evidentiary hearing where they 
could make a record to support the request (Rl-2). Plaintiffs 
filed, with their Complaint, interrogatories and document 
requests and sought limited expedited discovery relevant to the 
requested preliminary injunction.3 Defendants responded on 
December 12, 1988, objecting to the motion for preliminary 
injunction (Rl-7), moving to dismiss the Complaint in its 
entirety (Rl-10), and requesting the court to schedule a hearing 
on the preliminary injunction prior to discovery.4

On December 14, 1989, the district court, Judge James
Hancock, denied the motion for expedited discovery. Order of 
December 14, 1988. On December 29, 1988, without affording
plaintiffs an opportunity to respond to the motion to dismiss

3 See Plaintiffs' Motion To Shorten the Time Within Which
Defendants Must Respond to Certain Interrogatories and Requests 
for Production, filed December 5, 1989. Plaintiffs are filing,
along with this brief, a Motion to Supplement the Record on 
Appeal to add several documents, including the above-cited 
motion, that were omitted from the record on appeal.

4 See Defendants' Objections to Plaintiffs' Motion to 
Shorten Time For Answering Interrogatories and Producing 
Documents, filed December 13, 1988, at 2 (unnumbered page) 
[submitted with Appellants' Motion to Supplement the Record on 
Appeal].

4



(Rl-14-2),5 the district court denied the motion for preliminary- 
injunction, dismissed three counts of the five count Complaint,6 
and announced that evidence on the remaining Counts would be 
limited to events occurring after the March 13, 1985 dismissal of 
the Talladega County portion of Lee v. Macon County (Rl-13). 
Plaintiffs sought reconsideration of these rulings on January 6, 
1989 (Rl-14), which was denied the next day (Rl-14).7 Plaintiffs 
then sought to have the district court enter final judgment to 
allow an immediate appeal (Rl-18). That motion, too, was denied 
(Rl-18). Plaintiffs then noticed an appeal with respect to the 
denial of the preliminary injunction (Rl-31).

5 The Local Rules of the United States District Court for 
the Northern District of Alabama do not establish time limits for 
submitting responsive briefs to motions. Plaintiffs' counsel 
inquired about scheduling and on December 22, 1988, were advised 
by Judge Hancock's law clerk that the motion would be placed on 
the motion docket and that a scheduling order would be issued 
notifying plaintiffs when their response would be due. Instead, 
however, Judge Hancock ruled on the motion on December 29, 1988, 
without providing plaintiffs any opportunity to respond (Rl-14-2).

6 The district court dismissed plaintiffs' First Amendment 
claim without stating any reason for the dismissal and refused to 
exercise pendent jurisdiction over a related state law claim. 
The court allowed Counts II and III of the Complaint, which 
allege violations of the Fourteenth Amendment to the 
Constitution and Title VI of the Civil Rights Act of 1964, 42 
U.S.C. § 2000d et sea., to stand (Rl-13).

7 The district court also denied admission pro hac vice of 
counsel for plaintiffs from the NAACP Legal Defense Fund on the 
ground that a victory for plaintiffs would result in an undue 
burden on the taxpayers of Talladega County. (See Rl- 
16,17,18,19,20.) Subsequently, the court allowed one pro hac 
vice admission (Rl-30).

5



District Court's Order
In its December 29, 1988 order, the district court described 

plaintiffs' complaint as embodying a charge that "defendants are 
making decisions consistent with the concept of a unitary system 
by failing to operate 'historically black schools' in the manner 
they were operated prior to achieving unitary status" (Rl-13-1). 
The district court stated that it had "doubt" that an allegation 
of this type stated a claim upon which relief could be granted, 
and that in any event, the claim certainly did not warrant 
issuance of, or even a hearing associated with a preliminary 
injunction (Rl-13-2). The court ruled further that Count I of 
the Complaint (seeking relief for breach of the Lee v. Macon 
County settlement agreement) was due to be dismissed because that 
claim could be pursued only in the Lee v. Macon County 
litigation, and that evidence relating to events prior'to March 
13, 1985 (the date of the Lee dismissal), was irrelevant in this 
action (Rl-10-3).

Scope of Review
The standard of review on appeal from the denial of a 

preliminary injunction is abuse of discretion. Johnson v. United 
States Department of Agriculture. 734 F.2d 774, 781 (11th Cir.
1984) .

SujgmaT-y of the Argument
The district court's hasty rejection of the motion for 

preliminary injunction was a clear abuse of discretion not only

6



because it denied plaintiffs an opportunity to develop a record 
to support the motion, but also because (1) the court erred in 
concluding that plaintiffs had probably failed to state a claim 
upon which relief could be granted because the court totally 
misunderstood the claim being presented —  describing it in 
essence as an objection to a refusal to operate all-black schools 
-- where plaintiffs actually complained of a racially 
discriminatory pattern of closing formerly black schools and 
refusing to operate a historically black school as a fully 
integrated facility while maintaining and enhancing formerly 
white schools, (2) the court erred legally in rejecting Count I 
of plaintiffs' Complaint (for breach of the agreement to comply 
with court orders in Lee v. Macon County Board of Education) on 
the ground that it must be brought in the earlier action where 
the' law is clear that settlement agreements can be enforced in 
separate, independent actions, Fed. R. Civ. P. 60(b) (savings 
clause), and (3) the court erred legally in concluding that 
evidence prior to dismissal of the earlier litigation was 
irrelevant to the claims and the relief sought where the law 
provides that such evidence is relevant, Riddick v. School Board 
of Norfolk. 784 F.2d 521, 539 (4th Cir.), cert, denied. 479 U.S.
938 (1986) .

Furthermore, the facts established thus far show that 
plaintiffs have a likelihood of success on the merits of their 
claims because the disparity in formerly black schools closed as 
compared to formerly white schools closed is substantial, the

- 7 -



school district has allowed or condoned zone-jumping by white 
students seeking to avoid a historically black school, defendants 
excluded black parents from the decision-making process regarding 
location of the new elementary school, and the asserted reason 
for defendantsfailure to enhance the historically black school 
to accommodate the elementary children in the area — ' a shortage 
of available land —  is pretextual.

There is a substantial likelihood of irreparable injury 
without an injunction against the new construction because there 
will otherwise be no opportunity to give consideration to 
enhancing the historically black school and the closing of its 
elementary grades will become virtually inevitable with the new 
construction. This injury is irreparable because it constitutes 
deprivation of a constitutionally protected right. Mitchell v. 
Cuomo. 748 F.2d 804, 806 (2d Cir. 1984).

The threatened harm to plaintiffs outweighs the 'harm to 
defendants in that the harm, if any, to defendants would be of a 
financial nature, which as a matter of law is not irreparable 
whereas injury to plaintiffs is of constitutional dimension. 
Finally, the public policy of this nation stands strongly against 
racial discrimination in education. Bob Jones University v. 
United States. 461 U.S. 574, 593 (1983). Thus, the public 
interest supports issuance of the injunction.

8



ARGUMENT
I. Legal Standards For Preliminary Injunctive Relief

The legal standards by which a court determines if a party 
is entitled to a preliminary injunction are whether (1) the 
movant is substantially likely to prevail on the merits, (2) 
there is a substantial threat that the movant will suffer 
irreparable injury if the injunction is not granted, (3) the 
threatened harm to the movant outweighs the harm, if any, to the 
non-moving party if the relief is granted, and (4) the public 
interest supports protecting the movants' rights by issuing the 
injunction. Johnson v. United States Department of Agriculture, 
734 F.2d at 781.

The district court apparently considered only the first 
- factor. Moreover, it is clear from the district court's order 
that the exercise of its discretion in deciding whether 
preliminary relief was warranted was principally determined by 
several legal errors which the court committed.

II. Plaintiffs Have A Substantial Likelihood Of Success On The
Merits.
A. The District Court Abused Its Discretion In 

Denying The Preliminary Injunction Before 
Plaintiffs Had An Opportunity To Get Needed 
Discovery.

Simultaneously with the filing of the Complaint, plaintiffs 
filed their motion for a preliminary injunction, discovery 
requests, and a motion to shorten the time for response to 
certain discovery requests. (Plaintiffs sought discovery
responses to a limited number of requests within thirty rather

9



than forty-five days.) The motion to shorten time stated that 
plaintiffs believed that defendants planned to start construction 
in late December or early January, that plaintiffs had requested 
an evidentiary hearing on the motion for a preliminary 
injunction, and that the information plaintiffs - sought through 
discovery was "essential to presentation of plaintiffs' claim at 
the evidentiary hearing and is needed on an expedited basis given 
the scheduled construction plans." Motion To Shorten Time, at 2.

This motion notified the district court that plaintiffs 
intended to support the motion for preliminary injunction with 
evidence obtained through discovery. Nonetheless, the district 
court ruled on the motion for preliminary injunction immediately 
—  before plaintiffs could obtain evidence through discovery and 
establish an evidentiary record. This was an abuse of 
discretion. Even if the district court properly decided that 
plaintiffs were not entitled to a shortened’ time for discovery, 
it erred in ruling on the motion without providing an opportunity 
to present in either a written or oral testimonial form even the 
evidence then available (since plaintiffs had specifically 
informed the court that they wished to submit evidence on the 
motion) and before plaintiffs could obtain evidence through 
discovery.8 While discovery is not always necessary to support a

8 Plaintiffs' need for discovery was made clear to the 
district court by allegations in the Complaint (Ri-1-14,15 [ 5 5  
46-53]), detailing defendants' refusal to provide plaintiffs with 
public information regarding the school construction and closing 
plan and other public information regarding the school system. 
Plaintiffs had even alleged a specific violation of state law for

(continued. . . )'
10



request for preliminary injunctive relief, courts routinely 
consider discovery, as well as affidavits, when ruling on such a 
motion.8 9 The district court's precipitous ruling below is the 
equivalent of making a decision on the merits without allowing 
the presentation of evidence. The summary denial of preliminary 
injunctive relief cannot be justified under Fed. R. Civ. P. 
12(b)(6) because the district court explicitly declined to 
dismiss Counts II and III of the Complaint. Under these 
circumstances, that denial of a preliminary injunction was a 
clear abuse of discretion.10

8(...continued)
the withholding of public information (Rl-1-18), but the district 
court dismissed this claim (Rl-13).

9 Defendants contended in their motion to dismiss that no
discovery should be permitted prior to the hearing on preliminary 
injunction. Defendants' Objections to Plaintiffs' Motion to 
Shorten Time For Answering Interrogatories and Producing 
Documents, December 12, 1989, at’ 2. They cited no authority for
this argument and we know of none. Depositions and discovery 
materials are routinely used in preliminary injunction 
proceedings. See. e.q.. Illinois Migrant Council v. Pilliod, 398 
F. Supp. 882, 886 n.4 (N.D. 111. 1975), aff'd. 540 F.2d 1062 (7th 
Cir. 1976), aff'd in part bv equally divided court and rev1d in 
part on other grounds. 548 F.2d 715 (7th Cir. 1977) (en banc) ;
Beauboeuf v. Delgado College. 3 03 F. Supp. 861, 862 (E.D. La. 
1969), aff'd per curiam. 428 F.2d 470 (5th° Cir. 1970); United 
States v. Fox. 211 F, Supp. 25, 30 (E.D. La. 1962), aff'd, 334 
F.2d 449 (5th Cir. 1964).

10 Plaintiffs have attempted to proceed with discovery in
order to expedite consideration of the merits. However, they have 
been hampered by the district court's prospective evidentiary 
ruling announced in the order denying the preliminary injunction. 
For example, defendants have refused to respond to any discovery 
requests concerning events prior to March 13, 1985. Cf. Fed. R.
Civ. P. 26(b)(1) ("It is not ground for objection that the 
information sought will be inadmissible at the trial if the 
information sought appears reasonably calculated to lead to the 
discovery of admissible evidence.") Plaintiffs are awaiting the

(continued...)
11



B. The District Court Abused Its Discretion In 
Denying The Motion For Preliminary Injunction 
Based Upon Its Gross Mischaracterization Of 
The Claim.

The district court's characterization of plaintiffs' claim 
as an effort to maintain all-black schools the way they were 
operated when the school district operated a dual system is a 
serious misapprehension of plaintiffs' claim. (See Rl-13-1.) 
Here plaintiffs seek to halt the unequal treatment of black 
citizens of Talladega County. They are challenging the school 
system's repeated practice of closing schools that functioned 
historically (prior to desegregation), as black schools, while 
maintaining and enhancing schools that functioned historically as 
white schools. Thus, plaintiffs seek (1) to keep the Talladega 
County Training School open, and (2) to make it an integrated 
school in the system by assuring that the attendance zone plan 
adopted by defendants is adhered to. Plaintiffs seek to prevent 
defendants from taking racially discriminatory actions, such as 
the current construction and school closing plan, which is 
designed to avoid assigning white students to a formerly black 
school. The district court's depiction of plaintiffs' claim 
cannot be justified by any fair reading of their Complaint.

The claim of discriminatory treatment actually made by 
plaintiffs is well supported in school desegregation 10

10(...continued)
district court's ruling on their motion to compel discovery, both 
as to this information and as to the majority of their remaining 
discovery requests. Plaintiffs' Motion to Compel Discovery, 
filed March 9, 1989.

12



jurisprudence. It was long ago established that closing schools 
for racial reasons is impermissible. For example, in Bell v. 
West Point Municipal Separate School District. 446 F.2d 1362 (5th 
Cir. 1971),11 the Court of Appeals for the former Fifth Circuit 
struck down a proposal to close two formerly all-black schools 
located in a black neighborhood because of fear on the part of 
the school board that whites would not attend these schools. The 
court held that closing the schools because whites would refuse 
to attend the location constituted racial discrimination in 
violation of the Fourteenth Amendment of the Constitution. 
Similarly, in Lee v. Macon County Board of Education, 448 F.2d 
746 (5th Cir. 1971), the former Fifth Circuit Court of Appeals 
held that closing formerly black' schools and dispersing their 
students among formerly white schools to avoid integrating the 
black schools by assigning whites to them was a violation of the 
Fourteenth Amendment.12

11 Decisions of the Fifth Circuit prior to creation of the 
Eleventh Circuit have binding precedential weight. Bonner v . 
City of Prichard. 661 F.2d 1206, 1209-11 (11th Cir. 1981) (en 
banc).

12 Accord United States v. Board of Education of Waterbury, 
605 F. 2d 573 (2d Cir. 1979); United States v. Texas Education 
Aaencv. 532 F.2d 380, 395 (5th Cir.), vacated on other grounds 
sub nom. Austin Independent School District v. United States, 429 
U.S. 990 (1976), reaff'd on remand. 564 F.2d 162 (5th Cir. 1977); 
Arvizu v. Waco Independent School District. 495 F.2d 499 (5th 
Cir. 1974); McPherson v. School District No. 186, 426 F. Supp. 
173, 187 (S.D. 111. 1976); Green v. School Board of Roanoke, 316 
F. Supp. 6 (W.D. Va. 1970), aff'd sub nom. Adams v. School 
District No. 5, Orangeburg. 444 F.2d 99 (4th Cir. 1971), cert. 
denied. 404 U.S. 912 (1971); Brice v. Landis. 314 F. Supp. 974 
(N.D. Cal. 1969).

13



Here the Board of Education's plan will complete the 
effective downgrading and/or elimination of every formerly black 
school in the county system and the black community. See infra 
at 18-21. These actions treat the black schoolchildren of 
Talladega County as inferior and second-class persons. It is 
clear that plaintiffs have stated a claim upon which relief—  
preliminary as well as permanent —  can be granted.

C. The District Court Abused Its Discretion In 
Rejecting The Breach Of Contract Claim As A 
Legal Basis For The Relief Sought.

The district court's rejection of the preliminary injunction 
motion was also supported by its conclusion that Count I of the 
Complaint must be dismissed. That Count alleged that defendants 
breached an agreement to which plaintiffs were parties, or of 
which they are third-party beneficiaries (Rl-1-16). The district 
court dismissed the claim because it was "of the opinion that 
where court orders or agreements implicit in court orders are a 
basis for relief, that basis should be pursued in Lee v. Macon 
County" (Rl-13-2).13 However, here plaintiffs do not sue to

13 In its motion to dismiss, the school board argued that 
there can be no contractual rights created through the 
settlement of a school desegregation action (Rl-10-6
[unnumbered]). That contention is clearly wrong. E.g., Local No. 
93 , International Association of Firefighters v. City of 
Cleveland. 478 U.S. 501, 524-28 (1986) (parties in discrimination 
case may agree upon relief which exceeds that which court could 
independently order); Allen v. Alabama State Board of Education,
816 F. 2d 575 (11th Cir. 1987) (governmental party may not
repudiate settlement in discrimination suit); Armstrong v. Board 
of School Directors. 616 F.2d 305, 316-19 & n.16 (7th Cir.
1980)(affirming approval of settlement in school desegregation 
action); Vaughns v. Board of Education of Prince George's County, 
574 F. Supp. 1280 (D. Md. 1983)(granting further relief in school

(continued...)
14



enforce the court order, but rather to enforce the underlying 
contract between the parties. Even if, as Judge Acker held,
there remain no enforceable court orders in Lee v. Macon County 
Board of Education (Talladega County). the parties nonetheless
entered into an agreement among themselves which is separately 
enforceable. In this case plaintiffs sue on the contractual 
agreement to comply with the orders issued in that case, not to 
enforce directly the court orders in Lee.

As third-party beneficiaries of the agreement between the 
Lee plaintiffs and the defendants which resulted in the 1985 
dismissal of that suit, plaintiffs in the instant case are 
entitled to bring before the district court their claim that
defendants have breached the agreement. See Eatmon v. Bristol 
Steel & Iron Works. Inc.. 769 F.2d 1503, 1514-17 (11th Cir.
1985) (jurisdiction under 28 U.S.C. § 1331 for breach of
settlement agreement arising out of discrimination lawsuit);13 14 
see also Bossier Parish School Board v. Lemon. 370 F.2d 847, 850
(5th Cir.), cert, denied, 388 U.S. 911 (1967).15

13(...continued)
desegregation case based in part upon violation of consent 
decree, despite finding of no discriminatory intent), aff'd in 
part and rev'd in part on other grounds. 758 F. 2d 983 (4th Cir. 
1985) ; McPherson v. School District No. 186, 426 F.. Supp. 173 
(S.D. 111. 1976)(enforcing consent decree on liability portion of 
school desegregation action).

14 Plaintiffs alleged jurisdiction pursuant to § 1331 in
1 2 of the Complaint in this action (Rl-1).

Both court decrees and settlement agreements may be 
litigated and enforced in separate, independent proceedings in 
equity. See, e.a.. Fed. R. Civ. P. 60(b)(savings clause); United

(continued...)
15



D. The District Court Abused Its Discretion In 
Concluding That Only Evidence After March 13,
1985 Is Relevant To Plaintiffs' Claims.

Also undergirding the district court's denial of the 
preliminary injunction was its conclusion that evidence pre­
dating the dismissal of Lee v. Macon County was irrelevant (Rl- 
13-3). Of course, this action seeks to prevent■the prospective 
closing of the lower grades at the Talladega County Training 
School,15 16 not retrospective remedies for prior closings. 
Nevertheless, evidence related to the past practices of the Board 
of Education is relevant, admissible, and probative on 
plaintiffs' request for preliminary injunctive relief, even if 
those practices standing alone could not, arguendo, provide a 
basis for relief.17 Indeed, in its brief in this Court

15(...continued)
States v. Timmons. 672 F.2d 1373, 1378-80 (11th Cir.
1985)(discussing independent action in equity), citing Bankers 
Mortgage Company v. United States, 423 F.2d 73, 78 (5th Cir.),
cert, denied. 399 U.S. 927 (1970)? Jackson v. Carter Oil Company, 
179 F.2d 524 (10th Cir.)(new injunctive decree issued in new
civil action brought to enforce provisions of decree entered in 
prior litigation), cert, denied, 340 U.S. 812 (1950); Humb1e Oil 
& Refining Company v. American Oil Company, 259 F. Supp. 559 
(E.D. Mo. 1966)(in new civil action against successors of 
plaintiff which secured decree restraining use of certain symbols 
and trademarks in 1937 antitrust suit, court denies requested 
modification of 1937 decree on merits).

16 Paragraph 1. of the prayer of the Complaint seeks a
declaration that "defendants' school closing and school
construction plans" are discriminatory; f 2. of the prayer seeks 
to "[e]njoin defendants' school closing and school construction 
plans" (Rl-1)(emphasis supplied).

17 See, e.g.. Riddick v. School Board of Norfolk, 784 F.2d
521, 539 (4th Cir.) ("while the history of discrimination is not
dispositive, it is relevant to a court's determination of the 
school board's intent") , cert, denied, 479 U.S. .938 (1986) ; Los

(continued...)
16



supporting Judge Acker's refusal to reopen the Lee v. Macon 
County litigation, the United States argues affirmatively that 
evidence of the history of discriminatory practices would be 
relevant in new litigation. Brief for the United States in Lee 
v. Talladega Countv Board of Education, No. 88-7471, at n.10 and 
n.30. The district court abused its discretion in refusing to 
consider the evidence of a discriminatory pattern of school 
closings culminating in the current school closing and 
construction plan.

E. Facts Produced Thus Far Show A Substantial 
Likelihood Of Success On The Merits.

In order to establish a violation of the equal protection 
clause of the Fourteenth Amendment plaintiffs must show 
intentional discrimination. It is well-established in this 
Circuit that discriminatory intent may be found although "the 
record contains no direct evidence of bad faith, ill will or any 
evil motive on the part of public officials." Williams v. City 
of Dothan. 745 F.2d 1406, 1414 (11th Cir. 1984). In Village of 17

17(...continued)
Angeles Branch. NAACP v. Los Angeles Unified School District, 750
F. 2d 731, 740-41 (9th Cir. 1985) ("the parties may introduce
evidence of events occurring on or before May 2, 1969, so long as 
it is relevant to a claim of de jure segregative acts committed 
by defendants after that date"); id. at 749 (concurring 
opinion)("nothing in our opinion prevents [plaintiffs] from 
offering, for the purpose of shedding light on the school 
district's intent after May 2, 1969, evidence of de jure acts 
that occurred before then"); Bronson v. Board of Education of 
Cincinnati. 687 F.2d 836, 841 (6th Cir. 1982)("evidence of events 
and practices which occurred prior to that date are admissible if 
relevant to the post-1965 inquiry"); see also Bronson v. Board of 
Education of Cincinnati. 525 F.2d 344, 350 (6th Cir. 1975)(same), 
cert, denied. 425 U.S. 934 (1976).

17



Arlington Heights v. Metropolitan Hous. Dev. Corn.. 429 U.S. 252
(1977), the Supreme Court held that discriminatory intent could
be established through such evidentiary showings as substantial
disparate impact, a history of discriminatory official actions,
procedural and substantive departures from the norms generally
followed by the decision-maker, and the legislative or
administrative history of the decision. Id. at 265-69. ̂-8

To establish a violation of Title VI of the Civil Rights Act
of 1964,18 19 and obtain injunctive relief, however the language of
the Title VI regulations is significant:

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

34 C.F.R. § 100.3(b)(3)(1987) (emphasis supplied). This Court
has held that claims based on the Title VI regulations, like the 
Title VI claim in this case (Rl-1-17), are to be determined using

18 See also Keyes v. School District No. 1, Denver. 413
U.S. 189, 207-08 (1973), citing Nve & Nissen v. United States.
336 U.S. 613, 618 (1949)("Evidence that similar and related
offenses were committed . . . tend[s] to show a consistent
pattern of conduct highly relevant to the issue - of intent"). 
Application of this principle is especially appropriate where the 
defendant has a long history of discriminatory conduct, as in 
this case. See Harkless v. Sweeny Independent School District, 
554 F.2d 1353, 1357 (5th Cir. 1977)("Overnight changes in racial
attitudes, as we have sadly noted in the last twenty years, are 
rare.").

19 Title VI prohibits racial discrimination in federally 
funded programs. 42 U.S.C. § 200Od.

18



a disparate impact analysis. Georgia State Conference of 
Branches of NAACP v. State of Georgia. 775 F.2d 1403, 1417 (11th
Cir. 1985), relying on Guardians Ass'n v. Civil Service Comm'n of 
New York City. 463 U.S. 582 (1983) ; Consolidated Rail Coro, v.
Darrone, 465 U.S. 624, 630 n.9 (1984); and Alexander v. Choate
469 U.S. 661 (1985).

The evidence plaintiffs have been able to obtain thus far 
establishes a substantial likelihood of success on the merits of 
these claims.20

1. Pattern of Closing Historically Black Schools. Based 
upon an analysis of publicly available statistics, there is a 
pattern of racially discriminatory school closings. In the Fall 
of 1968 there were eight historically black schools and twelve 
historically white schools. By 1989, the school district had 
closed outright four historically black schools —  Mignon, 
Nottingham, Hannah J. Mallory, and Phyllis Wheatley21 —  compared 
to outright closure of two historically white schools —  
Eastaboga and Mark Linder.22

20 Defendants have failed or refused to respond to most of
plaintiffs' discovery requests requiring plaintiffs to file on 
March 9, 1989 a substantial motion to compel discovery. As of
the date of filing this brief plaintiffs have received a total of 
34 pages in response to production requests and evasive or non- 
responsive answers to interrogatories.

21 Defendants have not disputed that these schools were 
closed.

22 Sources of data: U.S. Department of Health, Education
and Wei fare/Office for Civil Rights, Directory of Public 
Elementary and Secondary Schools in Selected Districts. 
Enrollment and Staff by Racial/Ethnic Group, Fall, 1968 (OCR-10.1-

(continued...)
19



In even greater contrast is the closing of significant 
portions of schools, particularly secondary schools. In 1968 
there were six historically white schools providing secondary 
education —  B.B. Coiner, Childersburg High School, Fayetteville, 
Munford, Talladega County High School (later renamed Lincoln 
School), and Winterboro —  and five historically black schools 
providing secondary education —  Charles R. Drew; Ophelia S. 
Hill, Phyllis Wheatley, R.R. Moton (later renamed Sycamore 
School), and the Talladega County Training School. In 1989, the 
six historically white schools providing secondary education 
remain, but the Talladega County Training School is the only 
historically black school that continues to provide secondary 
education. With respect to elementary education, in 1968 there 
were eleven historically white schools providing elementary 22

22(...continued)
70) 24 (1970); U.S. Department of Health, Education, and
Welfare/Office for Civil Rights, Directory of Public Elementary 
and Secondary Schools in Selected Districts. Enrollment and 
Staff bv Racial/Ethnic Group, Fall. 1970 (OCR-72-5) 23 (1972);
U.S. Department of Health Education and Welfare/Office for Civil 
Rights, Directory of Public Elementary and Secondary Schools in 
Selected Districts. Enrollment and Staff bv Racial/Ethnic Group, 
Fall. 1972 (OCR-74-5) 22 (1974); U.S. Department of Health,
Education, and Welfare/Office For Civil Rights, I Directory of 
Elementary and Secondary School Districts, and Schools in 
Selected School Districts: School Year 1976-1977 24 (1979);
U.S. Department of Education/Office for Civil Rights, I Directory 
of Elementary and Secondary School Districts, and Schools in 
Selected School Districts; School Year 1978-79 31 (1980); U.S.
Department of Education/Office for Civil Rights, 1984 Elementary 
and Secondary Schools Civil Rights Survey, School Summary: List
of Schools By District, 17-18 (obtained from the Department of 
Education). The relevant pages for Talladega County are attached 
as Exhibit H, to the Affidavit of Janell Byrd, filed February 17, 
.1989, in opposition to defendants' motion for summary judgment 
(submitted with Appellants' Motion to Supplement the Record on 
Appeal).

20



education —  Watwood, Comer, Childersburg, Eastaboga, 
Fayetteville, Idalia, Jonesview, Linder, Munford, Talladega 
County High School (subsequently renamed Lincoln), and Winterboro 
—  and eight historically black schools providing elementary 
education —  Charles R. Drew, Hannah Mallory, Mignon, Nottingham, 
Ophelia S. Hill, Phyllis Wheatley, R.R. Moton (subsequently 
renamed Sycamore), and Talladega County Training School. By 
1989, there were eight historically white schools providing 
elementary education —  Eastaboga, Mark Linder and the 
elementary division of Munford had been closed —  and three 
historically black schools providing elementary education—  
Hill, Moton (renamed Sycamore), and the Talladega County Training 
School (scheduled for closure).23 (One historically black school 
now provides education for grades 5-8.)24

This pattern is not accidental, but is 'related to 
impermissible racial concerns. In 1970, the Talladega County 
Board of Education identified as its key problem the fact that 
the size of its black population would require it to assign white 
students to black schools. . In a letter on January 6, 1970, 
submitting its desegregation plan to the court, Superintendent 
J.R. Pittard stated:

I am sure you realize that the implementation of a plan 
to abolish the dual school system is more difficult in 
some school systems than in others because of the 
racial composition of the school system. It is 
anticipated that the implementation of the plan in the

23 Id.
24 Id.



Talladega County School System will be difficult 
because of the size of our Negro Population. 
Implementation of the plan in the Talladega County 
School System will require us to send white students to 
all Negro schools with the exception of one school.
Our problem is further intensified by the fact that of 
the five county school systems bordering this county, 
it will not be necessary for four of these systems to 
send white students to Negro schools. I hope, 
therefore, that you will have some understanding of our 
situation and of the problems involved.25
2. Failure to Enforce Attendance Zones. Allowing White 

Students To Avoid Historically Black Talladega County Training 
School. While plaintiffs have not gotten responses to the 
discovery requests on this issue, plaintiffs have already been 
able to confirm independently that at least thirteen white 
children who recently attended Jonesview Elementary School, which 
is a feeder school for the Training School, but have avoided the 
Training School by attending secondary school in the public 
schools of Talladega City. (Affidavit of Shirley Jones, filed 
February 17, 1989, in opposition to defendants' ‘motion for 
summary judgment [submitted with Appellants' Motion to Supplement 
the Record on appeal].)26 Furthermore, in connection with an

25 Desegregation Plan for Talladega County, filed January 
7, 1970, Lee v. Macon County Board of Education, Civ. No. 604-E 
(M.D. Ala.), Exhibit B to Plaintiffs' Motion to Reopen in Lee v. 
Talladega County Board of Education. No. 70-AR-0251-S, filed in 
this Court in appeal No. 88-7471 in support of the Emergency 
Motion for Injunction Pending Appeal (excerpt attached hereto as 
Exhibit A).

26 The names of two additional white children who live in 
the Training School zone but attend school at other Talladega 
County public schools are provided in the Affidavit of Augustus 
Elston, filed February 17, 1989, in opposition to defendants'
motion for summary judgment, at 4 (submitted with Appellants' 
Motion to Supplement the Record on Appeal).

22



inquiry made to an employee of the Talladega City School System, 
counsel for defendants has substantially confirmed this 
information, as well as the attendance of two additional children 
from the County who are attending the public schools of Talladega 
City. (Affidavit of Janell Byrd, Exhibit D.)27 This evidence 
directly contradicts the assertions in Dr. Grissett's affidavit 
that defendants have not allowed or condoned transfers by white 
children avoiding attendance at the Training School, and the 
assertion that the children who do transfer attend "private" 
schools outside of the County;28 it supports plaintiffs' 
allegations that defendants are allowing zone jumping by whites 
avoiding the Training School.

In paragraph 42 of the Complaint plaintiffs alleged that 
whites are not attending the Training School in consistent 
numbers as supported by enrollment data with respect to Jonesview 
Elementary School —  a feeder school for the Training School—  
which in 1984 had 88 black students (56%) and 7 0 white students 
(44%) while the Training School had 446 black students (97%) and 
13 white students (3%).29 In his affidavit, Dr. Grissett

o

27 This letter, contained in Exhibit D to the Affidavit
of Janell Byrd, indicates that there was a provision of the court 
order that approves such transfers. However, none of the court 
orders in the Lee v. Macon County litigation allow such transfers 
(see Supplemental Record, Exhibit H in consolidated appeals Nos. 
88-7551, 88-7552, 88-7553 currently pending in this Court) and
defendants failed to produce any such order.

28 R1-24-[Grissett Affidavit at 2,4 (unnumbered pages)].
29 This information is based on data submitted by the 

school district to the United States Department of Education, 
Office of Civil Rights. See infra note 22.

23



appeared to disagree with the data provided in paragraph 42.30 
However, while defendants have the data regarding attendance at 
these schools, they did not provide anything indicating that 
plaintiffs' information was incorrect.31

Additionally, and contrary to defendants' stated policy of 
strictly enforcing zone lines, the Board of Education provides 
transportation to children who live in the same area, on the same 
road (next door to each other) to three different schools—  
Childersburg, Winterboro, and Talladega County Training School. 
(Affidavit of Augustus Elston at 4).

Thus plaintiffs have already amassed considerable evidence 
that defendants have supported and approved transfers by white 
students avoiding the Training School. This is in violation of 
defendants' agreement to comply with the court orders in Lee v . 
Macon County.32 It is also further evidence of racial 
discrimination in defendants' plans to locate the new school at 
the site of a historically white institution rather than at the 
Training School.

30 Rl-24-[Grissett Affidavit at 4 (unnumbered page)].
31 Where proof is offered tending to support a charge and

the party charged is in the position to produce all of the facts 
but does not, it is presumed that the evidence if produced would 
tend to sustain rather than rebut the charge. Golden State 
Bottling Co. v. NLRB. 414 U.S. 168, 174 (1973); Interstate 
Circuit v. United States. 306 U.S. 208, 226 (1939); Mammoth Oil
Co. v. United States. 275 U.S. 30, 52 (1927).

32 Rl-1 and briefs on appeal in No. 88-7471.

24



The Exclusion of Black Parents From the Board's3 .
Decision-Making Process Supports Plaintiffs' Claims of Racial 
Discrimination. In January of 1988, a group of black parents and 
citizens of Talladega County sent a letter to Superintendent 
Grissett and the other members of the Board of Education asking 
in advance to be placed on the agenda at the next Board meeting 
regarding the Training School. (Affidavit of Augustus Elston, 
Exhibit A.)33 The Superintendent responded by directing the 
parents to discuss the matter with the Training School principal. 
He did not reply to the parents' request to address the Board. 
(Id. Exhibit B.) When the black parents renewed their request to 
be placed on the agenda, defendants simply did not respond. (Id. 
at 2 and Exhibit C.)

In February 1988, the parents wrote to the Chairman of the 
Talladega County Board of Education and requested a copy of the 
Board's desegregation plan and other materials. (Id. Exhibit D.) 
There was no response to this letter. (Id. at 2.) Black parents 
also requested, in writing, student assignment data and faculty 
assignment data for Idalia (scheduled to be rebuilt and 
enlarged), Jonesview, and the Training School. (Id. Exhibit E.) 
None of the information was provided. (Id. at 2-3.)

In July 1988, black parents went to the office of the 
Talladega County Board of Education and requested copies of

33 At this time there were no black members of the 
Talladega County Board of Education. It was not until December 
of 1988, as a result of litigation in Dillard v. Crenshaw, Civ. 
No. 85-T-1332-N (M.D. Ala.), that the first black person was
elected to the board.

25



minutes of Board meetings. They were shown the minute book but 
were told they could not have copies made, despite the fact that 
Alabama law gives every citizen the right to take a copy of any 
public writing. Ala. Code § 36-12-40 (1975 & Supp. 1988). After 
intervention by legal counsel, plaintiffs were provided copies. 
(Elston Affidavit at 3.) Through counsel, • the parents were 
informed, however, that they would have to pay for their copies 
although the Board does not usually charge for copies. (Affidavit 
of Janell Byrd, Exhibit E.)

In August 1988, black parents again went to the Board's 
office and requested minutes of recent Board meetings and were 
denied access to the minutes and told that all such requests must 
be made through legal counsel. (Affidavit of Augustus Elston at 

3.)
Under Arlington Heights. 429 U.S. 252 (1977), supra at 17, 

the behavior described above —  exclusion of blacks from the 
decision-making process —  supports an inference of impermissible 
racial motives on the part of defendants.

4. Failure to Consider Expanding and Enhancing The Training 
School. Defendants asserted that consideration was given to 
expanding the Training School as opposed to rebuilding and 
expanding the Idalia School (the challenged construction), but 
that the idea was rejected because there was "insufficient land 
available there to meet new accreditation requirements." (See 
Rl-24-Grissett Affidavit, at 3, [page unnumbered]). However, the 
most current Accreditation Standards for Combined Elementary and

26



Secondary Schools, Bulletin 1981, No. 10, Alabama State
Department of Education require for each new elementary school
five acres of land plus one acre for each 100 students.
(Affidavit of Janell Byrd, Exhibit J.) As the Board was
considering a new elementary facility for 500 pupils, in order to 
meet accreditation standards for an entirely new facility the 
Board needed at most 10 acres (not taking into account the land 
already available to the Training School for elementary purposes 
which would reduce the total land needed) . There are at least 
thirty acres of vacant land surrounding the Training School. 
(Affidavit of Augustus Elston at 5.) Defendants' asserted 
justification is therefore pretextual.

III. There Is A Substantial Threat That Plaintiffs Will 
Suffer Irreparable Injury If An Injunction Is Not 
Issued.

The second factor that plaintiffs must establish is a 
substantial threat of irreparable injury if the injunction is not 
granted. The injury plaintiffs will suffer is the denial of 
their constitutional right under the Fourteenth Amendment to be 
free from racial discrimination in the provision of education. 
In Lee v. Macon County Board of Education, 448 F.2d at 753-54, 
the court stated,

Under general equal protection doctrine, therefore, it 
would be impermissible for the school board to close a 
formerly black school for racial reasons. More 
particularly, such action is prohibited by the school 
desegregation cases. Brown II. supra. calling for 'a 
racially nondiscriminatory school system,' and its 
progeny require not only that past discriminatory 
practices be over come by affirmative actions but also 
that new forms of discrimination not be set up in their

27



place. Closing formerly black school facilities for 
racial reasons would be such a prohibited form of 
discrimination. 'Such a plan places the burden of 
desegregation upon one racial group.'34
Denial of a constitutional right inherently causes

irreparable harm. In Central Alabama Paving, Inc, v. James. 499
F. Supp. 629 (M.D. Ala. 1980), the court found that where the
alleged harm that plaintiff would suffer absent a preliminary
injunction is the deprivation of constitutionally protected
rights of equal protection irreparable harm would result:

The Court is of the opinion that these rights are so 
fundamental to our legal system and to our society that 
any violation thereof will cause irreparable harm 
irrespective of financial impact. See, A Quaker Action 
Group v. Hickel. 421 F.2d 1111 (D.C. Cir. 1969); Henry 
v. Greenville Airport Commissioner. 284 F.2d 631 (4th 
Cir. 1960); American Fed, of Gov. Employees, Loc. 1858 
v. Calloway. 398 F. Supp. 176 (N.D. Ala. 1975); 11
Wright & Miller, Federal Practice and Procedure § 2948.

Id. at 639. Accord Mitchell v. Cuomo. 748 F.2d 804, 806 (2d Cir.
1984); Henrv v. Greenville Airport Commission. 284 F.2d 631 (4th
Cir. 1960) (lower court has "no discretion" to deny a preliminary
injunction where evidence establishes the threat of denial of a
constitutional right). There is strong precedent supporting
enjoining school construction plans pending judicial

34 The harm will be caused because construction of a new 
elementary school unless stopped will eliminate any need to 
consider enlarging the Training School to accommodate a larger 
number of elementary students and will make closing the 
elementary grade portion of the Training School virtually 
inevitable.

28



consideration of challenges on grounds of racial 
discrimination.35

IV. Harm to Plaintiffs Outweighs Any Harm to Defendants
The third factor to be shown is that the harm to the movant 

outweighs any harm to the non-moving party as a result of the 
injunction. Plaintiffs have established that the injury they 
will suffer without the injunction is of constitutional magnitude 
and entitled to the highest protection. Furthermore, enjoining 
the construction maintains the status quo. By way of contrast, 
any injury to defendants from an injunction would be financial in 
nature and not irreparable. Therefore, defendants' injury-, if 
any, would not rise to the level of plaintiffs' injury; thus it 
is clear that harm to plaintiffs outweighs any harm to 
defendants.

V. A Preliminary Injunction Would Serve the Public Interest
The Supreme Court and the Congress of the United States have 

strongly denounced racial discrimination, especially in the area 
of education. In Bob Jones University v. United States, 461 U.S. 
574, 593 (1983), Chief Justice Burger wrote for the Court: "An
unbroken line of cases following Brown v. Board of Education

35 See, e.g.. Cisneros v. Corpus Christi Independent 
School Dist.. 459 F.2d. 13 (5th Cir. 1972) (enjoining school 
construction pending appeal); Calhoun v. Cook. 430 F.2d 1174 (5th 
Cir. 1970) ; see also Swann v. Charlotte-Mecklenburg Board of 
Educ. . 402 U.S. 1, 20-21 (1971) ; Sloan v. Tenth School Dist. of 
Wilson County. 433 F.2d 587 (6th Cir. 1970); Clark v. Board of 
Educ. of Little Rock. 449 F.2d 493 (8th Cir. 1971), cert, denied, 
405 U.S. 936 (1972).

29



established beyond doubt this Court's view that racial 
discrimination in education violates a most fundamental national 
public policy, as well as rights of individuals." Additionally, 
Congress passed sweeping civil rights laws in the Civil Rights 
Act of 1964 to root out discrimination and eliminate it. 42 
U.S.C. § 2 OOOd et seq. An injunction against these practices
unquestionably furthers the public interest.

CONCLUSION
Plaintiffs respectfully request the Court to hold that the 

district court abused its discretion in denying the preliminary 
injunction and to order issuance of an injunction in favor of 
plaintiffs. If the Court determines that a remand for 
reconsideration by the district court on a full record is that 
appropriate disposition of this appeal, plaintiffs request that 
the Court issue an injunction pendente lite to preserve the 
status quo pending such reconsideration, and the disposition of 
any appeals therefrom.

JULIUS L. CHAMBERS 
NORMAN J . CHACHKIN 
JANELL M. BYRD

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

Counsel for Plaintiffs- 
Appellants

- 30 -



Certificate of Service

copies of the Brief for Appellants' were served by overnight 
delivery on the other parties to this action, addressed as 
follows:

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

I hereby of April, 1989, two

31





U i m i i i Im O n ; iv i t  nf  " L ; i r ;11iiiu
xjrrt- • o*‘ i m i  m r r n i N  r i  n h i  n t

I i’ ll

January 6, 1970

U. S. DISTRICT JUDGE 
MIDDLE DIST. OF. ALA. 

MONTGOMERY, ALA.

Honorable Frank M. Johnson, Jr.
United States District Judge 
United State District Court for the

Middle District of Alabama, Eastern Division 
Government Building 
Montgomery, Alabama
Dear Judge Johnson:

F I L E D
71970

R. C  D O BSO N , CLERK 

deputy cuiiic

In accordance with the Order of your Court under date of 
October 23, 1969 directing the Talladega County Board of 
Education to submit a plan for the abolition of the dual 
school system, we wish to submit the enclosed plan for 
your consideration and approval.
We have worked with personnel of the Auburn Center in 
the preparation of a Desegregation Plan for the Talladega 
County School System to be effective September, 1970. I 
have sent a copy of this plan to Health, Education and 
Welfare authorities for their review and evaluation.
I am sure you realize that the implementation of a plan to 
abolish the dual school system is more difficult in some 
school systems than in others because of the racial compo­
sition of the school system. It is anticipated that the 
implementation of the plan in the Talladega County School ^ 
System will be di.ffj.cult because of the size of pur Negro 
population. Implementation of the plan in the Talladega 
County School System will require us to send white students 
to all Negro Schools with the exception of one school. Our 
problem is further intensified by the_fact that of the five 
county school systems bordering this county, it will not be 
necessary for four of these systems to send white students ^  
to Negro schools. I hope, therefore, that you will have 
some understanding of our situation and of the problems in­
volved .
I wish to point out that it would be possible for us to 
physically house all the elementary students of both races 
in the Ophelia S. Hill School and all high school students 
of both races in the Munford School in the Munford Attendance



Judge Johnson Page  2

Area. However, in view of the attitude of the citizens of 
both races in this community and after evaluation of teaching 
personnel of both schools, it was felt that it would not be
feasible or wise for us to attempt pairing of these two
schools.
The plan that we are submitting will require 8256 of our Negro 
students to attend integrated schools and 100/6 of our white 
students to attend integrated schools.
I am sure that you have approved many desegregation plans in 
city school systems which call for the operation of all 
Negro schools and all white schools, and in which the per­
centage of integration by both races is tremendously less 
than the percentage that will be required in our plan. It 
is the feeling of our Board, therefore, that we have complied
with the Order of the Middle District Court when we were in­
structed to abolish the dual school' system.
Your early consideration and approval of our plan will be 
greatly appreciated, however, if you cannot approve our plan 
as submitted, I will greatly appreciate a conference with '
you.

Sincerely yours,

Superintendent
JRP:fhb 
Enclosure
Copy of Plan Submitted to: Gray, Seay & Langford

Attorneys at Law 
352 Dexter Avenue 
Montgomery, Alabama 36104
Hon. Jerris Leonard 
Asst. Attorney General 
Civil Rights Division 
U.S. Department of Justice 
Washington, D. C. 20530
Hon. Ira DeMent 
United States Attorney 
P. 0. Box 197
Montgomery, Alabama 36101