Brown v. Board of School Commissioners of Mobile County, Alabama Proposed Findings of Fact and Conclusions of Law of Plaintiffs Leila G. Brown, et al.

    IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

LEILA.G. BROWN, )
et al .,

PI ai nti ffs , )

UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

v. )

BOARD OF SCHOOL COMMISSIONERS )
OF MOBILE COUNTY, ALABAMA, 
et al ., )

Defendants. )

PROPOSED FINDINGS OF FACT ANO 
CONCLUSIONS OF LAW OF PLAINTIFFS 

LEILA G.BROWN, ET AL.

This cause is before the Court on remand from the 

Supreme Court of the United States and the Court of Appeals 

for the Fifth Circuit. The Complaint in this action was 

filed June 9, 1975. On December 9, 1976, this Court entered 

judgment in favor of the Plaintiffs, concluding that the 

at-large method of electing the Board of School Commissioners 

of Mobile County unconstitutionally diluted the voting 

strength of black citizens. Brown v. Moore, 428 F.Supp 1123 

(1976). On June 2, 1978, in a short per curiam unreported 

opinion, the Court of Appeals affirmed. Brown v. Moore, No. 

77-1583 (5th Cir. 1978). On April 22, 1980, the Supreme 

Cour* vacated and remanded the judgment of the Court of 

Appeals for recon sideration in light of the decision in the 

companion case, City of Mobile v. Bolden, 446 U.S. 55, 100 

S.Ct. 1490 .( 1980). Will jams v. Brown, 446 U.S. 236, 100 

S.Ct. 1519 (1980). On July 9, 1980, the Court of Appeals

CIVIL ACTION NO. 
75-298-P

1



vacated and remanded this Court's judgment for 

reconsideration in light of the Supreme Court's decision in 

Bolden.

On remand* the Court denied a motion summarily to 

dismiss the Complaint and gave the parties the opportunity to 

present such additional evidence as they contended was 

relevant to the issues to be resolved on remand. Evidentiary 

hearings were conducted from April 13, to April , 1981. The 

decision rendered herein is based on the evidence adduced at 

both the original trial and the remand hearings.

ci ty of mobi1e v. bolden

In Ci ty of Mob i1e v. Bolden, the Supreme Court 

reversed and remanded for additional proceedings the Fifth 

Circuit's decision affirming the judgment of this Court that 

the City of Mobile's at-large election system was 

unconstitutional . Bolden v. City of Mobile, 571 F.2d 238 

(5th Ci r. 1978 ), aff'g 423 F.Supp 384 (S.D. Ala., 1976 ). 

However, there were six separate opinions by the justices in 

Bolden, and there was no common statutory or constitutional 

basis for reversal agreed to by at least a majority of the 

Court. At the risk of oversimplifying, the six opinions can 

be summarized as follows: Justice Stewart, joined by Chief

Justice Burger and Justices Powell and Rehnquist, voted to 

reverse because he did not believe that the evidence analyzed 

according to the standards of Zimmer v. McKeithen, £85 F.2d 

1297 (5th Cir. 1973) (en banc) , a ff'd sub nom., East Carol! 

Parish School Board v. Marshall, 424 U.S. 656 (1976), 

proved an invidious legislative purpose behind Mobile's 

at-large scheme, and because he believed that such invidious

2



purpose 1s necessary to establish a vote dilution claim under 

the the fourteenth amendment. 100 S.Ct. at 1503. Justice 

Stevens voted to reverse, even though he disagreed with 

Justice Stewart and thought there was proof that racial 

motives played some part in the legislative decision to 

retain at-large elections, because in his view the election 

plan was not unconstitutional unless it's objective effects 

compel the conclusion that it was motivated solely by racial 

concerns. 100 S.Ct. at 1503. Justice Blackmun voted to 

reverse because he disagreed with this Court's remedial 

orders, although he agreed that this Court's findings amply 

supported an inference of purposeful discrimination. 100 

S.Ct* at 1507. Justice White voted to affirm because he 

agreed with the Fifth Circuit that the Zimmer analysis 

established the requisite discriminatory purpose. 1100 S.Ct. 

at 1514. Justice Marshall voted to affirm because he 

believed that effective dilution violates the Constitution 

regardless of the purpose behind the election plan, and, in 

any event, because he believed that an invidious purpose had 

been proved. 100 S.Ct. at 1520. Justice Brennan voted to 

affirm because he agreed with Justice Marshall that proof of 

dilutive effect is sufficient, and because, in any event he 

agreed with Justices Marshall and White that a discriminatory 

purpose had been proved. Id.

The inability of the Supreme Court to reach majority 

agreement for the basis of its reversal leaves the following 

statutory and constitutional issues unresolved in vote 

dilution cases:

(1) Does vote dilution violate Section 2 of the 

Voting Rights Act of 1965, as amended, 42 U.S.C. 1973, and, 

if so, must invidious purpose as well as effective 

discrimination be proved to establish a statutory claim?

3



Only Justice Stewart's plurality opinion addressed this 

question, answering it 1n the negative. In the wake of 

Bolden, one panel of the Fifth Circuit has held that Section 

2. of the Voting Rights Act does prohibit intentional vote 

dilution. United States v. Uvalde Consolidated Independent 

School District, 62S F.2d 547 (5th Cir. 1980). A second 

panel, while declining squarely to rule on the statutory 

issue, stated in dictum that a Section 2 cause of action was 

coextensive with the fifteenth amendment dilution claim.

Lodge v. Buxton, ___F.2d__ (5th Cir., March 20 , 1981 ), slip

op. at 4999 n. 11. But a third Fifth Circuit panel 

recently adopted Justice Stewart's view and ruled that a vote 

dilution claim cannot be made out under Section 2. McMillan 

v . E scambl a County , ____F.2d____  (5th Cir. Feb. 19, 1981).

(2) Do black voters have a private cause of 

action under Section 2 of jthe Voting Rights Act, if it does 

prohibit vote dilution? None of the Bolden opinions decides 

this question, and none of the post-Bolden court of appeals 

decisions has addressed it. However, Uvalde holds that the 

Justice•Department may challenge vote dilution under Section 

2, and the United States is a piaintiff-intervenor in the 

instant action.

(3) Does the fifteenth amendment prohibit 

minority vote dilution, and, if so, must purposeful 

discrimination be proved, or will effect alone suffice? The 

Stewart plurality believed that the fifteenth amendment 

guarantees nothing more than the right to register and vote 

and thus does not extend to dilution claims. 100 S.Ct. at 

1499. However, Justices Stevens, White and Marshall thought 

that the fifteenth amendment does bar vote dilution, 100 

S.Ct. at 1509, 1519, 1520. Justices B1ackmun and Brennan 

did not explicitly state their positions on the fifteenth

4



amendment. 100 S.Ct. 1507, 1520. Again, there is a split 

among Fifth Circuit panels on this issue: Uvalde held that

purposeful vote dilution violates the fifteenth amendment,

625 F.Zd at 552 n.3; accord, Lodge v. Buxton, supra, slip 

op. at 5011. But McM111 an agreed with Justice Stewart and 

took the opposite stance, Slip Op. at 4322 n. 9.

(4) Although a majority of the Justices in Bolden 

(all but B1 ackmun and Brennan) explicitly agreed that 

mino-rity vote dilution may violate the fourteenth amendment, 

there was no majority view on whether discriminatory purpose 

as well as, effect must be proved under the fourteenth or 

fifteenth amendment. Contra, Lodge v. Buxton, supra, slip 

op. at 5009. The Stewart plurality squarely endorsed the 

need to establish invidious purpose. 100 S.Ct. at 1497, 

1501. Justice Stevens would provide the fifth vote for this 

view, but it cannot be presumed that he would repudiate an 

effect-only standard in the future if he accepts the verdict 

of the other eight justices against his unique all-or-nothing 

position. See Lodge v. Buxton, supra, slip op. at 5007.

(5) This Court will follow the rule as 

established by the Stewart plurality and Justice Stevens, 

that, standing alone, the Zimmer factors do not prove the 

constitutionally requisite invidious intent. However, the 

Court notes the doubts recently expressed by at least four 

Fifth C1rcuit panels about the precedential value of this 

holding in Bolden when applied to other cases. See Uvalde,

supra, 62 5 F.2d at 552; Zimmer v. Edwards,   F.2d  

(5th Cir. 1980); Corder v. Kirksey,  F.2d___ (5th Cir.,

Mar. 15, 1981), slip- op. at 4779; Lodge v. Buxton, supra, 

slip op. at. 5011.

One constitutional issue that can fairly be said to 

have been resolved by Bolden is the principle that racial

5



concerns need not be the sole motives behind the election 

scheme to establish a violation of the fourteenth amendment. 

All eight other justices seem clearly to reject Justice 

Stevens' extreme view to the contrary. McMillan, supra, slip 

op. at 4321.

Accordingly, on remand, the Court has received and 

considered evidence from the original trial and from the 

remand hearing to determine whether there has been at least 

some invidious racial purpose behind either the adoption or 

the maintenance of the at-large election system for the 

Mobile County School Board. If proved, such discriminatory 

purpose would clearly satisfy a majority of the Supreme Court 

in Bolden, and would warrant entry of a judgment of 

unconstitutionality at least under the fourteenth amendment.

In addition, the Court has received evidence relevant 

to a constitutional theory which was not addressed by the 

opinions of the Supreme Court in Bolden. This theory, 

advanced by both the Plaintiffs and the United States, can be 

stated as follows: Where in the past the State of Alabama

has disfranchised black citizens in violation of their 

fifteenth amendment rights, federal courts have a duty to 

remedy that constitutional violation by ordering the 

disestablishment of even racially neutral election practices 

that perpetuate the effects of the prior discrimination.

FINDINGS OF FACT

Effective Dilution of Black Voting Strength

The Court readopts the findings of concerning the 

operative effects of at-large elections set out in its

6



original opinion, 428 F.Supp at 1125-32. None of these 

findings was questioned or disapproved by the Court of 

Appeals or by any of the six opinions by members of the 

Supreme Court.

In particular, the Court reaffirms its prior ultimate 

finding of fact that "the at-large election structure as it 

operates in the countywide election of the school 

commissioners of Mobile County substantially dilutes the 

black vote in these elections." 428 F.Supp at 1132. The 

Court accepts the definition of effective minority vote 

dilution as enunciated by the expert political scientist in 

the original trial, Dr. Charles Cotrell, and by the expert 

political sociologist in the remand hearing, Dr. Chandler 

Davidson: Dilution occurs when a geographical insular,

politically cohesive racial or ethnic minority group is 

unable to have its electoral choices registered in the 

electoral process because over a significant period of time 

bloc voting by a substantial majority group consistently 

defeats the candidates or issues favored by the minority 

group. Where such minority vote dilution occurs with the 

degree of severity demonstrated by the evidence in this case, 

the white majority will be able to select all of the members 

of a multi-representative local govermental body, while the 

black minority will be able to select none. Analysis of the 

political campaigns and elections of representative bodies in 

Mobile County since 1962, when blacks first became a 

significant political force since Reconstruction times, shows 

that the candidates and issues favored by black voters or 

otherwise associated with black c ommun i ty interests have been 

uniformly defeated by a bloc-voting white electorate.

Analysis of the election returns for several national and 

local offices in 1980, including the unsuccessful candidacy

7



of Frankie Fields Smith, a black lawyer who sought the office 

of Circuit Judge of Mobile County in 1980, demonstrates that 

the pattern of racial vote dilution continues in Mobile 

County to the present time.

Dilution As a Continuing Effect Of 
De-Jure Discrimination____

The Court previously found, as a matter of fact, that 

“past discrimination has helped preclude the effective 

participation of blacks in the election system today in the 

at-large system of electing school commissioners." 428 

F.Supp at 1132. This official discrimination against blacks 

in Mobile County prevailed until the very recent past.

Blacks were discouraged by state officials from registering 

and voting at least until 1965. This Court ordered the

desegregation of Mobile's police force in 1971. Allen v .__

City of Mobile, 331 F.Supp 1134 (S.D. Ala., 1971), aff1 d 466 

F .2d 122 (5thCi r. 1972), cert, denied, 412 U.S. 909 ( 1973 ).

Black citizens were unconstitutionally excluded from .juries

in Mobile County as recently as 1973. Preston v.__

Mandev111e, 479 F.2d 127 (5th Cir. 1973). As recently as 

1970, another judge of this Court was forced to threaten 

members of the Board of School Commissioners of Mobile County 

with $1,000.00 per day contempt fines for their refusal to 

comply with orders to desegregate the public schools. Brown 

v. Moore, supra, 428 F.Supp at 1130. To date, no order has 

been entered in the Mobile County School desegregation case, 

Davis v. Board of School Commissioners, Mo. 3003-63-H, 

declaring that Mobile County finally has a unitary school 

system.

The continuing effects of this state-sponsored

8



discrimination against blacks 1s still apparent in massive 

proportions. The black registration rate in Mobile County 

continues to lag substantially behind the white voter 

registration rate. The black unemployment rate is twice as 

high as that for whites. Black citizens as a group still are 

substantially disadvantaged in relation to whites in Mobile 

County with respect to educational achievement, income, 

housing, and other indicators of socio-economic status. It 

cannot be denied that these disadvantages are a direct 

product of the pervasive official segregation and exclusion 

of black citizens from the mainstream of white society.

De jure racial discrimination has profoundly affected 

the attitudes of white voters towards blacks. The Court 

previoulsy concluded that present-day racial polarization at 

the polls is in large part caused by the longstanding and 

only recently abated state policies against black citizens. 

The testimony of expert witnesses at the hearing on remand 

gave detailed substantiation of this finding. Based on this 

expert testimony, the Court makes the following additional 

findings regarding the connection between present day voter 

attitudes and the historical discrimination against blacks by 

state government.

In order to evaluate the effects of historical 

circumstances on the present and the future, that history 

must first be thoroughly understood and placed in context. 

This is precisely what historians attempt to do in their 

scholarly work. As one nationally acclaimed, award winning 

historian in the field of race relations put it:

To say this, I suppose, is to make 
something of a claim for the value 
of studying current attitudes toward 
Negroes by taking, as they say, "the 
historical approach." What the historian

9



contributes, Inevitably, is a sense and 
appreciation of the important effect -- 
perhaps even the great weight -- of 
prior upon ensuing experience.

Winthrop D. Jordan, White Over Black: American Attitudes

Toward the Negro 1550-1812, p. ix (1968).

The history of racial attitudes in the South was 

reviewed by Dr. Jerrell Shofner, Professor of History at the 

University of Central Florida.

Southern white people have a long history, as they 

perceive it, including several outside threats to their 

traditions. Having successfully defended those traditions 

repeatedly, Southerners came to believe them more strongly. 

The segregated society which has persisted in the 20th 

century, supported until recently by both law and custom, has 

imbued both blacks and whites with habits that cannot be 

dispensed with easily. Even people with the best intentions 

are still influenced by the habits and customs which have 

been familiar to them.

By the time America was settled, the assumption that 

whites were superior to blacks, at least in Anglo-Saxon 

culture, was well established. It was in this context that 

early colonial Americans solved their problems of earning a 

living from the soil of the new continent. Where land was 

plentiful and labor was scarce, they brought in indentured 

white servants until the available supply dwindled. Then 

after 1619, blacks were being sold as slaves to the colonists 

by Dutch and other traders. By the end of the 17th Century, 

blacks had almost wholly replaced white indentured servants. 

The change to perpetual, racial slavery came around 1660. It 

was decided that Christians could be slaves, solving a 

dilemma regarding the frequent conversion of blacks. And the 

Virginia House of 3urgesses decreed that the status of a 

black child was to be decided by the status his mother. If

10



she were a slave, then so was the child. Life indentures 

thus became perpetual indentures based on race. 3y the time 

of the American Revolution , large numbers of slaves were 

tending the tobacco in the upper South and the rice and 

indigo in the Carolinas and Georgia.

When colonial Englishmen began thinking of 

independence, they argued that they wanted to be free from 

the servitude which George III had thrust upon them. This 

brought the realization that they were paradoxically asking 

for freedom to hold other beings in slavery. A vigorous 

debate ensued and many American revolutionaries favored 

abolition of slavery. Even as late as 1787, the Northwest 

Ordinance prohibited slavery from that territory. But the 

institution survived the Declaration of Independence and the 

ratification of the Constitution. It was regarded as a 

"domestic institution", that is, to be regulated by the 

states themselves. Most states north of Pennsylvania soon 

abolished slavery, and all of the northern states eventually 

did. The Virginia convention of 1830 came within one vote of

prohibiting slavery. That was the high tide of anti-slavery
/

feeling. The ebb had already begun.

Short staple cotton had become an important crop after 

Eli Whitney's 1793 invention became known and Andrew Jackson 

drove the Creek Indians from western Georgia and southern 

Alabama about 1814. A surge of population into the new 

soutwest was based on cotton production using slave labor. 

Virginia, South Carolina, and Maryland became exporters of 

their surplus slaves. The rising economic importance of 

slavery coincided with an increasingly strident abolition 

movement in the North about 1820. As William Lloyd Garrison 

and others accelerated their assault on the contradictions 

between bonded racial slavery and the promises of the

11



Declaration of Independence, embattled Southerners ceasea to 

apologize tor slavery as a necessary evil and developed an 

extensive rationale for it as a positive good for both blacxs 

and whites al1ke .

Ministers argued that slavery was supported by the 

Bible. One of the most pervasive arguments was an ostensiDly 

scientific one. Several men, most prominent of whom was Dr. 

Josiah Mott of Mobile, Alabama, argued that men nad derived 

from different origins. They maintained that blacks had 

permanent deficiencies rendering them inferior to whites. 

They, and others using their premises, argued that since 

blacks needed guidance, slavery was a benevolent way that 

superior whites and inferior blacks could live together. The 

black labored for the white who in turn provided the 

necessary guidance for the blacks. The enormous volume of 

literature on this subject,, reinforced by speeches from 

pulpit, courthouse, and newspaper office, created a deep 

belief in most Southerners that, not only was slavery good, 

but that blacks were too inferior to assume the duties and 

responsibilities of citizenship.

After a volatile decade of the 1850‘s, during which the 

United States Supreme Court in Dred Scott v. Sanford, 30 

U.S. 393 ( 1857 ),. agreed with the South that slavery was 

protected by the Constitution, a destructive Civil War was 

waged from 1861 to 1865. Slavery was symbolically ended by 

Lincoln's 1863 Proclamation of Emancipation, but in fact by 

the advancing federal troops. Southerners made a magnificent 

stand against superior military forces, suffered horrible 

losses of manpower and property, and lost. Having given all 

they had, they had little to show for it but "The Lost 

Cause." In the course of the next two decades, the "lost 

cause" would be elevated to one of the most enduring myths of

12



history, one that enabled the South to win the peace after 

having lost the Civil War. An important part of it was the 

firmly held conviction about black inferiority. Slavery was 

gone, but the rhetorical defense remained.

Under President Andrew Johnson's Reconstruction 

program, white Southerners enacted laws, referred to as Black 

Codes, reflecting their attitudes about the freedmen. No 

longer slaves, but still unable to become full citizens, they 

were allotted a distinctly second class citizenship. Radical 

Congressmen, unwilling to accept this, battled with Johnson, 

defeated him, and enacted a series of laws known as 

Congressional Reconstruction. Blacks were enfranchized, and 

Republican Parties in most Southern states came to power, 

deeply offending the whites, who fought back in every way 

available to them. The Ku Klux K1an threatened, intimidated, 

and then beat and killed. Owners of land denied rentals and 

credit to those who persisted in voting. Blacks continued to 

exercise their voting rights in the face of the severest kind 

of economic and physical intimidation. By 1874 the 

night-riding, secretive Klan gave way to the "Red Shirts." 

These paramilitary groups rode in the daytime, letting it be 

known that they would use force to "draw the color line."

The idea was that all whites were required to vote the 

Democratic ticket or leave, and blacks were not to vote at 

all. These efforts had their effect. After the disputed 

1876 Presidential election and resulting compromises, the 

national government largely abandoned its efforts to make 

full citizens of blacks. Rayford W. Logan calls this The 

Betrayal of the Negro.

Southern whites hailed the event as the "redemption of 

the South" and the "restoration of home rule." Having 

battled for the Lost Cause and against outside interference

13



by "carpetbaggers,” they regarded the end of Reconstruction
*

as a victory and a vindication. Over the next few years they

worked to make their laws once more conform to their custom.
*

As C. Vann Woodward put it in the The Strange Career 

of Jim Crow, the South's adoption of extreme racism was due 

not so much to a conversion as 1t was to a relaxation of the 

opposition. Southerners knew from slavery days that they 

were right about blacks. Now the United States government 

seemed to be agreeing in its abandonment of Reconstruction.

In a series of cases culminating in the Civil Rights Cases, 

109 U.S. 3 (1883), the Supreme Court narrowed the meaning of 

the fourteenth amendment and negated the 1875 Civil Rights 

Act. In Plessy v. Ferguson 163 U.S. 537 (1896), and 

Williams v. Mississippi, 170 U.S. 213 (1898), Court 

majorities approved de jure separation of the races.

Meanwhile a horrendous battle had been waged between 

old-line Southern conservatives represented by Wade Hampton, 

Benjamin Hill, L. Q. C. Lamar and the Bourbon Aristocracy 

in Alabama, who had held a paternalistic view of blacks, and 

the newly emergent representatives of poorer white classes, 

represented by Benjamin (Pitchfork Ben) Tillman, Hoke Smith, 

and James K. Vardaman, who took over political leadership. 

Wilbur J. Cash in his Mind of the South laments this descent 

from the genteel older leadership to the race-baiting, 

violence-advocating group. From the late 1870's to the 

1890's, black votes had been controlled by physical and 

economic intimidation, and the simple method of fraudulent 

counting of the ballot box. There even appear to be many 

instances when the black vote simply was not counted.

By the turn of the century, total disfranchisement by 

law was sought. By means of literacy tests, poll tax 

requirements, and residency requirements, administered by

14



white officials, and "grandfather clauses" and “understanding 

clauses" to provide loopholes for whites, it became more and 

more difficult for blacks to vot£ in the 1390's. These 

provisions were being incorporated into state constitutions 

throughout the South. Alabama made the change in 1901. If 

any black managed to slip through all these provisions, he 

was caught by the "wfvite primary." Through combinations of 

state laws and Democratic party rulings, blacks were 

eliminated from the elections which mattered. With the 

shrinkage of the Republican party to splinter status, only 

Democrats had a chance of winning in the general elections. 

And in order to vote in the Democratic primary, the election 

that mattered, one had to be white.

These state constitutional changes occurred during the 

so-called Progressive Period, a time with all sorts of 

reforms , in educational matters, in regulation of food and 

drug distribution, in matters of fair trade, and others. The 

changes which eliminated the blacks from the suffrage were 

also regarded as "reforms." There was another set of laws 

being enacted concurrently in the Southern states, the Jim 

Crow laws. This legislation was enacted to give _de jure 

support to the customary racial practices of the region. 

Provisions were made, not only for separate schools, separate 

train and streetcar facilities, and separate restrooms, but 

also for separate entrances to, as the city of Birmingham put 

it, "any room, hall, theatre, picture house, auditorium, 

yard, court, ball park, or other indoor or outdoor place."

In 1909, Mobile even passed a curfew law exclusively for 

blacks, requiring that they be off the streets by 10 p.m.

Extensive though they were, the Jim Crow laws were not 

as far-reaching as the Jim Crowism that was practiced. They 

gave _de jure support, not only for the customary racial

15



attitudes shared by Southern whites for generations, but they 

also left the blacks without recourse from the worst abuses 

that the rowdies of white society could devise. Worst of 

all, they applied to all bl acks 'because they were black, not 

just to the ones whose conduct was remiss. Hanging and 

burning at the stake became commonplace and rarely were the 

perpetrators brought to justice. The legal sanction of 

customary racial discrimination vastly reinforced that 

custom.

The Jim Crow system was given reinforecement by the 

highest authorities. Much romantic literature, some of it 

mere hack work, was being sold to a large reading audience 

both North and South during the Progressive Era.

Whites and blacks lived in the South under the official 

Jim Crow system for more than two generations. By the time 

of the Second World War, whites considered the issue settled, 

and many blacks saw little reason to disagree. But, once 

again, just as custom and law were in harmony and seemingly 

incontestable, changes were already in motion.

Blacks had begun migrating into Northern industrial 

cities before and, especially, during World War I. They 

formed voting enclaves in a few Congressional districts from 

which they were able to elect black representatives. The 

Harlem Renaissance provided an intellectual stimulus for 

black self-respect 1n the 1920s. The NAACP began seeking 

redress in the courts and was winning cases from the 

mid-1930s. World War II had an enormous impact on 

time-honored racial arrangements. Asa Philip Randolph had 

gained a national voice when he won AFL recognition of his 

Brotherhood of Sleeping Car Porters and Maids in 1935. Then, 

when blacks were rejected by defense plants operating on 

government contracts, Randolph threatened a march on

16



Washington to demonstrate to- the world the conditions of

American blacks. President Roosevelt did not want that kind

of publicity and created by executive order a Fair Employment
*

Practices Commission, although it had scant power. This 

movement, added to the large numbers of blacks who travelled 

outside the South, increased black awareness of the 

possibilities of political pressure. Meanwhile, the Supreme 

Court outlawed the white primary in 1944 and struck down 

efforts to get around the decision in 1946. In Alabama, the 

Boswell Amendment was declared unconstitutional in Davis v. 

Schnell, 81 F.Supp 872 (S.D.Ala ), aff1d, 336 U.S. 933 

(1949), but was replaced in 1951 by another interpretation 

test.

The 1954 Brown decision struck at the heart of 

segregation, but the "all deliberate speed1' with which it was 

implemented led to a civil rights movement on a broadened 

front. Martin Luther King came to prominence when Rosa Parks 

refused to sit at the back of a Montgomery, Alabama, bus. 

Sit-ins by students at lunch counters and boycotts of 

segregated businesses received serious attention. National 

television made it difficult for segregation!sts to reinforce 

the system by old methods. Many excesses were being 

committed by law enforcement officials because they were 

enforcing the customs of their society, reinforced by the Jim 

Crow laws, albeit a sometimes strained interpretation of 

them.

Gradually there were obtained Congressional enactments 

enabling a vigorous Department of Justice to have most of the 

Jim Crow laws declared unconstitutional. But not a single 

bar association in the South spoke up by the early 1960s to 

say that the Supreme Court decisions were the law of the 

land. Meanwhile, individual lawyers assaulted the federal

17



judiciary and were applauded, as "constitutional authorities" 

by some of the Southern press. Governors hired lawyers, with 

public funds, to find ways to thwart the national law- Time 

after time, those lawyers could do no better than to advise 

their clients to hold out and force the courts to carry each 

issue to its logical extreme. See United States v. Alabama, 

252 F.Supp. 95 (M.D.Ala., 1966).

The J1m Crow laws are gone, but their trappings 

persist. Far too long white Southerners believed that blacks 

had no place in Southern society or politics. They enforced 

that belief with law and lawless atrocities to "keep the 

Negro in his place." Blacks understood the cost of getting 

out of that place. They did not trust the white man, and it 

was clear that the feeling was reciprocal. Other things 

being equal each preferred the company of his own kind.

Voting has reflected this. Both blacks and whites tend to 

vote for members of their own race. Bloc voting would 

probably persist if single member districts were established. 

At best blacks could elect only a minority of 

representatives. But that would put black faces in prominent 

elective offices and help to break down the customs which 

have persisted for so long. A catalyst of this sort is 

necessary to undo the residual effects of longstanding 

beliefs which were supported so long by law. Even then it 

will take time, and a lot of it.' People change their habits 

only slowly, but then do so if and when they can see that 

those habits are no longer useful to them.

18



The Legislative Intent 8ehind 
the School Board Election System

In it's original findings, this Court proceeded to 

examine the question of racial purpose in the adoption of 

Mobile County's at-large system for electing school 

commissioners under the assumption that it had originated 

with a 1919 law, No. 229, Ala. Local Acts 1919, p. 73. 

Brown v. Moore, supra, 428 F.Supp at 1135. Following the 

evidentiary rule established by McGill v. Gadsden County 

C omm i s s1o n, 535 F.2d 237 ( 5th Cir. 1975 ), and other Fifth 

Circuit cases, the Court concluded that the 1919 statute 

could not have been adopted with a racial motive because 

blacks had already been effectively disfranchised by the 1901 

Constitution of Alabama. 428 F.Supp at 1137.

However, evidence introduced through expert historians 

at the hearing on remand reveals that the present at-large 

election system for Mobile County school commissioners 

actually was adopted in 1876. Consequently, a longer and 

more detailed view of the legislative history of the election 

system is necessary.

Mobile County organized the first public school system 

in the State of Alabama 1n 1826. Ala. Acts 1825-26, p. 35. 

This statute called for the election of school commissioners, 

but the method of election is not precisely clear.

One-fourth of the commissioners were required to reside 

outside the City of Mobile. Originally, the School Board 

paid churches to run the public schools, primarily for 

paupers.

In 1852 the law was amended to provide for a board of 

twelve school commissioners, all elected at-large for

19



staggered terms of six years. No. 378, Ala. Acts 1851-52, 

p. 463. Four school commissioners were to reside outside 

the Ci ty of Mobi1e . -

The Mobile County Board of* School Commissioners 

suspended operations when the Union Army occupied Mobile at 

the conclusion of the Civil War.. Lewis Parsons was appointed 

provisional governor of Alabama under the Andrew Johnson 

administration. The Union Army administered civil affairs; 

the civil government was reorganized by keeping public 

employees on the job until a.new government elected by the 

people could be chosen. Governor Parsons authorized the 

existing Mobile County School Board to keep operating. In 

November 1865 there was a popular election for Mobile County 

school commissioners under the ante-bellum 1852 law. The 

incumbent school board members ran unopposed for their 

positions. Under President Johnson's administration, all 

whites could vote in Alabama, but blacks could not. Only a 

few whites were denied the ballot because of their refusal to 

take an oath of future loyalty to the United States.

During 1866 to 1867, as vacancies appeared on the 

School Board by death or resignation, the Board exercised its 

own authority to fill these vacancies. However, when 

military authorities took over at the beginning of 

Congressional Reconstruction, the military commander for this 

district appointed new members to the Mobile County School 

Board.

In 1867, the Republican controlled constitutional 

convention met and adopted a new state constitution, which 

was ratified in 1868, at a time when many white males were 

not allowed to vote due to their refusal to take the loyalty 

oath. They refused to take the oath, even though it was 

substantially the same as the one required by the Johnson

20



administration, because 1t allowed blacks to vote on the same 

basis as whites.

The 1868 constitution established for the first time a 

state board of education and gave it full legislative 

authority over educational matters. Noah B. Cloud was 

elected as the State Superintendent of Public Instruction. 

George L. Putnam, of Mobile, was elected to the State Board 

of Education. Putnam was from a Northern state, and he came 

to Mobile after the Civil War to set up a Freedmens* School 

as a representative of the American Missionary Association. 

This school for blacks was called variously the Emerson 

Institute or the Blue College.

In 1868, the Republican controlled legislature passed a 

law providing that the school commissioners of Mobile County 

be appointed by the State Superintendent of Public 

Instruction. Ala. Acts 1868, pp. 148-49, 151. State 

Superintendent Cloud appointed George L. Putnam as 

Superintendent of the Mobile County public schools in July 

1868. But when Putnam tried to post bond to serve as ‘ 

superintendent, Gustavus Horton, who was a member of the 

Mobile County School Board and probate judge, refused to 

accept Putnam's bond. Consequently, Putnam was not able to 

assume the duties of superintendent. In January 1869, Cloud 

came to Mobile and attempted to resolve the controversy with 

the Mobile School Board, whose members were adamantly opposed 

to the intentions of Putnam and the State Board of Education 

to have the AMA school for blacks, the Blue College, included 

in the Mobile County public system and its teachers paid by 

public funds. This was not a question of integrating the 

schools; not even the radical Republicans proposed so 

drastic a change during Reconstruction times. Rather, the 

white conservative Mobile School Commmisi oners simply were

21



opposed to the progressive principles employed by the AMA 

teachers, who taught their black students that they were 

entitled to equal rights. The AMA schools were still 

operating with Putnam apparently running them. The white 

schools were under the control of the Mobile School 

Commissioners. During the period Janaury to June 1869, State 

Superintendent Cloud and the old Mobile School Board members 

negotiated. Cloud wanted to get the schools going, and he 

agreed to compromise by removing Putnam from the 

superintendent's position and by appointing A. H. Rylands 

as superintendent. All the old school commissioners remained 

on the Board.

However, by the Summer of 1869, the compromise between 

the two sides had broken down. Cloud removed Rylands as 

superintendent and reappointed Putnam. Putnam, in turn 

appointed a whole new School Board sympathetic to the 

interests of blacks and the radical Republicans 

(carpetbaggers and scalawags). Three of the new school 

commissioners were black.

But the old school commmissioners refused to 

acknowledge the authority of the new School Board and refused 

to turn over public funds to them. Litigation was instituted 

to enforce the Republican appointments, but still the old 

Mobile School Commissioners resisted. A state court judge 

held them in contempt and ordered them jailed in October 

1869. The old Mobile school commissioners were actually 

jailed for two days and held a school board meeting while in 

jail. Expressions of sympathy and support from the white 

majority in Mobile poured in in behalf of the old Board 

members. There was general rejoicing in the white community 

when a state Supreme Court justice allowed the old Board 

members out of jail while the case was on appeal. However,

22



when the entire state Supreme Court addressed the merits of 

the case, they ruled in favor of Putnam in June 1870. Mobile 

School Commissioners v. Putnam, 44 Ala. 506 (1870).

There are no existing School Board minutes for the 

period from July 1870 to March 1871. During this time Putman 

and his racially mixed School Board had control of Mobile's 

public schools.

Another compromise was worked out, and on December 14, 

1870, the State Board of Education passed a law which 

restored the election of Mobile County school commissioners. 

The 1870 statutes (which does not appear in the Acts of 

Alabama, apparently because it was enacted by the State Board 

of Education rather than the Legislature) provided for the 

election of twelve school commissioners, of whom three had to 

live more than seven miles from the courthouse. However, the 

law provided that each voter could vote for only nine 

candidates. The Mobile Register said that this would allow 

,'minority'‘ interests to have some representati on on the 

School Board. During Reconstruction, the term "minority" 

meant blacks. The political explanation for this compromise 

probably can be found in the fact that by 1870 a Democratic 

governor had been elected, but the two houses of the 

Legislature were split between Republican and Democratic 

control, and the State Board of Education was still 

controlled by a Republican majority, although the State 

Superintendent was a Democrat. The old Mobile County School 

Commissioners agreed to accept this compromise.

Elections were held in March 1871. The Democrats ran a 

slate of nine candidates; the Republicans ran a slate of 

nine. E. R. Dickson was elected Superintendent, defeating 

George Putnam. Mine Democrats and three Republicans were 

elected to the School Board, including one person, Drury

23



Thompson, who appears to have been black or Creole. The 

newly elected School Board accepted the'Freedmens' schools as 

part of the public school system in Mobile, pursuant to the 

political compromise. However, tt appears that the elected 

School Board had less authority, met less often and conducted 

less business during the period betwen 1871 and 1876, if 

their minutes are an accurate reflection. Probably the Board 

turned over most of the operation of the schools to the 

superintendent.

In 1874, conservative Democrats gained full control of 

the governorship and the state legislature. Alabama was 

ful'iy redeemed .- A constitutional convention was held 

immediately, and the Redeemer Alabama Constitution of 1874 

did away with the legislative authority of the State Board of 

Education. The campaign of repression directed against black 

voters began immediately. Armed horsemen shot at black 

voters going to the polls in Mobile in the election for 

ratification of the new constitution.

The Redeemer Alabama Legislature met in 1876.

Virtually everything done in this legislative session had a 

racial connotation; the fundamental program of the 

conservative Redeemers was to do away with the restraints 

Reconstruction had placed on white supremacy. As part of 

this program, a law was passed doing away with the Mobile 

County School Board election system that afforded minority 

access, replacing it with the at-large election scheme, which 

remains in effect to this date. No. 242, Ala. Acts 

1875-76, p. 363. The number of school commissioners was 

reduced to nine , with three being elected every two years, 

and the restriction against full-ticket balloting was 

el 1 mi na ted .

Both expert historians who testified about these

24



events, Dr. Peyton McCrary, Associate Professor of History 

at the University of South Alabama, and-Dr. Morgan Kousser, 

Professor of History at the California Institute of 

Technology, were of the opinion "that the change to the 

present at-large scheme in 1876 was intended to exclude 

blacks and their white Republican allies from representation 

on the School Board. The Court agrees. Given the 

overwhelming historical evidence, no other conclusion is 

possi ble.

The 1876 election scheme for Mobile County School 

Commissioners remains in effect to the present day. The law 

was amended in 1919 by reducing the number of school 

commissioners from nine to five . Mo. 229, Ala. Acts 1919, 

p. 73. But the method of electing board members was left 

undi sturbed.

Candidates for the Mobile County School Board were 

nominated in the all-white Democratic Party primary, approved 

by state law in 1903. Blacks were officially denied 

participation in the only election that really counted until 

after the Supreme Court declared the white primary system 

unconstitutional in Smith v. All right, 321 U.S. 649 ( 1944 ).

As a result of reapportionment of the Alabama 

Legislature into single-member districts, ordered by the 

federal court in Sims v. Amos, 336 F.Supp 924 (M.D.Ala., 

1972), blacks in Mobile County were finally able to elect 

representatives in the Legislature. In the 1975 Regular 

Session, one of the black legislators, Cain Kennedy, 

introduced H.B. 1243, which proposed a change to 

single-member district elections of all five Mobile County 

School Commissioners. Mr. Kennedy advertised his bill as a 

local bill prior to introducing it into the Legislature.

While the Kennedy Bill was pending in the legislature,

25



it was amended to reschedule-the phasing in of district seats 

at the request of some incumbent School Commissioners, 

including Dan Alexander, in order to prevent cutting short 

their terms or having their current terms expire without the 

opportunity to seek reelection immediately. Some School 

Commissioners discussed these changes directly with Mr. 

Kennedy and other members of the legislature, in both the 

House and Senate. In addition, at least one of the School 

Board's attorneys, George Stone, negotiated one of the 

amendments with Senator Noonan.

During the pendency of the Kennedy Bill, the Defendant 

School Commissioners had actual or constructive knowledge 

that the amendments they requested in exchange for their 

support of the Kennedy Bill might create a violation of the 

Alabama Constitution by causing the Bill as enacted to vary 

substantially from the Bill as advertised.

• Nevertheless, once the Kennedy Bill had been enacted 

with the apparent support of the Defendant School 

Commissioners, the same School Commissioners instructed their 

attorneys to file a civil action in state court questioning 

the constitutionality of the Kennedy Act on several grounds, 

including the ground of variance from the manner in which it 

was advertised. In their public statements on the suit, the 

Defendant Commissioners proclaimed that they would not take a 

position in state court for or against the constitutionality 

of the Kennedy Act, but with the actual or constructive 

knowledge and acquiescence of the defendants, their counsel 

aggressively attacked and urged judicial condemnation of the 

Kennedy Act in state court. The plaintiffs in the instant 

federal court case were not served or notified of the 

pendency of the state court case. No one defended the 

constitutionality of the Kennedy Bill. The state court

26



action lasted only twelve days and ended with a declaratory

judgment and injunction against the Kennedy Act in an opinion

which was drafted by counsel for the School Board.*

The Defendant School Commissioners acted with invidious 

intent to deceive the black legislators supporting the 

Kennedy Act and the black plaintiffs and this Court in the 

instant case by purporting to support a resdistricting bill 

which they in fact helped make constitutionally defective and 

then by having the Kennedy Act struck down in a non-adversary 

state court proceeding, after they had been dismissed from 

the Instant federal lawsuit. But for this manipulation of 

the legislative process, the law of Alabama would today call 

for single-member district elections of Mobile County School 

Commi ssi oners.

While still pretending to support (or at least not to 

oppose) districted elections, the Defendants again 

manipulated the legislative process and the processes of this 

court to prevent the passage of remedial districting 

legislation in the 1976 Regular Session.

First, the Defendants delayed filing responsive 

pleadings to the complaint in this action until July, 1976, 

when the Regular Session was more than half over and when 

their late appearance would necessitate a continuance of the 

originally scheduled trial in this Court. This delay assured 

that no legislative or court decision could be reached before 

the 1976 School Board elections.

The Defendants procured introduction of H.B.1G60 in the 

1976 Regular Session by Representative Mat Sonnier. They had 

first urged black legislators to sponsor the bill, but the 

black legislators suspected more bad faith and constitutional 

problems with the School Board's redistricting bill.

The School Board sponsored Sonnier Bill was introduced

27



as a general law of local application, rather than as a local
*

bill. The Defendants had actual or constructive knowledge

that a general law arguably was invalid as an attempt to
*

change the method of electing Mobile County School 

Commissioners, because of that Board's special status under 

Section 270 of the Alabama Constitution. However, Defendants 

did not confess the constitutional deficiencies of the 

Sonnier Bill until closing arguments following the original 

trial of this case, long after the bill had been defeated in 

the 1976 Regular Session.

Defendants represented to this Court that the Sonnier 

Bill would meet all constitutional requirements prior to the 

original trial of this case, even though they knew this 

allegation was false. They attempted by means of these false 

allegations to postpone indefinitely the trial of this case 

and to establish a claim of "unclean hands" against the black 

legislators for having opposed the Sonnier Bill.

The Defendants' actions and representations concerning 

the Sonnier Bill were knowing and invidiously purposeful 

attempts to deceive the black legislators, the plaintiffs and 

this Court and thereby to prevent passage of valid remedial 

redistricting legislation and court-ordered redistricting. 

This Court has previously held that, by their aforesaid 

actions, the Defendants were acting with unclean hands and 

that- their tactics were similar to their "lack of cooperation 

and dilatory practices" in obstructing school desegregation. 

428 F.Supp. at 1134.

While this action was pending in the appellate courts, 

the Defendants took additional actions to defeat the remedial 

purposes of this Court's redistricting orders and to dilute 

the voting strength of the two black school commissioners who 

had been elected from single-member districts under the

28



Court's plan. This Court held 1n its order dated November 

24-, 1978 , pp. 7-8, that:

These ineon sistent positlons of 
the defendant-s in the Federal 
Court system in this case, and the 
position of certain Board 
members in attempting to frustrate 
the single-member district plan 
ordered ... reflects a pattern of 
conduct of these defendants con~ 
demned by this court concerning the 
defendants' different positions on 
legislative proposals to provide for 
single-member district (sic) of the 
Board. ..In short, it is obvious that 
the basic thrust of these actions 
by the Defendant Board, and certain 
of its members, have (sic) been to 
delay or defeat their alleged support 
of the legislative actions and this 
Court's orders of the single-member 
district plans for the Board designed 
to remove the unconstitutional dilu­
tion of the black votes.

The Court finds that, as a matter of fact, the at-large 

election system for the Board of School Commissioners was 

adopted and has been maintained for invidious racial 

purposes.

CONCLUSIONS OF LAW

The Court has jurisdiction over the subject of this 

action pursuant to 28 U.S.C. Sections 1331, 1343(3) and 

1 343(4 ), and 42 U.S.C. Section 1973j .

Statutory Claims:
The Voting Rights Act

The consideration of constitutional issues should be 

avoided if it is possible to decide the case on other 

grounds. City of Mobile v. Bolden. 100 S.Ct. 1490, 1496

29



<1980>; Wood V. Strickland, 428 U.S. 308, 314 (1975).

The panel in McMillan v. Escambij County, supra, Slip 

Op., at 4321 n. 8, 4322 n. 9 adopted the plurality view in 

C-i-ty of Mobile v. Bolden that S-ection 2 of the Voting Rights 

Act of 1965 does not support a claim of vote dilution. But 

another panel of the Fifth Circuit has construed the several 

opinions in Bolden, read together, to reach the opposite 

conclusion. United States v. Uvalde Consolidated 

Independent School District, supra, 625 F.2d 547 (1980);

accord, Lodge v. Buxton, ___F.2d ___ (5th Cir., Mar. 20,

1981), slip op. at 4999 n. 11; Nevett v. Sides, 571 F.2d 

209, 273-38 (5th Cir. 1978) (J. Wisdom concurring), cert. 

jteni_ed, 446 U.S. 951 ( 1980 ); Toney v. White 488 F.2d 310 

(5th Cir. 1973)(en banc). The Court is of the opinion that 

the weight of authorities favors the conclusion that Section 

2 °f the Voting Rights Act does prohibit vote dilution. As 

Judge Rubin's opinion in Uvalde pointed out, the Bolden 

plurality's view to the contrary appears to have been based 

on the related proposition that the fifteenth amendment 

extended no further than assuring the right to register and 

cast a vote. 625 F.2d at 551. However, the other five 

justices in Bolden either explicitly or implicitly accepted 

the argument that the fifteenth amendment goes even further 

to prohibit practices which diminish the weight of blacks' 

voting strength, at least if purposeful discrimination is 

shown. I_1 at 552- Tn addition, the Bol den plurality failed 

to take notice of the 1975 amendments to the Voting Rights 

Act, which clearly extended the scope of the Act to protect 

fourteenth amendment rights as well.

Without question, the PIaintiff-Intervenor United 

States is authorized to enforce the guarantees of Section 2 

m  this action. 42 U.S.C. Section 1973j(d) ; United States

30



v. Uvalde Consolidated Independent School District, supra. 

The Court concludes that the Plaintiffs", on behalf of 

themselves and the class of black citizens of Mobile County, 

also have a cause of action to challenge election practices 

under Section 2 of the Voting Rights Act. The Supreme Court 

has squarely held that a private cause of action based on 

Section 5 of the Voting Rights Act, 42 U.S.C. Section 1973c, 

was implied in the statute. A11en v. State Board of 

Elections, 393 U.S. 544, 553 (1959). The Court reached this 

conclusi on even though the Attorney General was expressly 

authorized by the Act to enforce its provisions, including 

Section 2 and Section 5. 42 'J.S.C. Section I973j(d). fiy

direct analogy, Mien must mean that there is a o-ivjte ;ausa 

of action to enforce Section 2 as well as Section 5. Mevett 

v. Sides, supra, 571 F.2d at 237 (J. Wisdom concurring!. 

Congress removed all doubt about the availability of a 

private right of action under Section 2 .with the amendments 

to the Voting Rights Act in 1975. As originally enacted, the 

Act's scheme gave primary en forcemeat respo.a si b i 1 i ty to the 

Attorney General. The 1973 amendments to the Act substituted 

"Attorney General or an aggreived person" for "Atto -nay 

General" everywhere it appeared in Section 3, the so-called 

“pocket-trigger" provision, 42 U.S.C. Section 1973a. The 

Senate Report explained that this change was intended to 

create a "dual enforcement mechanism," that is, "to afford to 

private parties the same remedies which Section 3 now affords 

only bo the Attorney General." Sen. Rep. Mo. 94-295, 94th 

Cong., July 22 197 5 , reprinted in 2 U . S . Code 

C o n g r e s s i_o n al_ a n _A dm i n M e w s  7 74, 306-07 ( 1 975). The 

proponents of this amendment made it clear that a private 

action was to be available under Section 2. Congressman 

Drinan, for example, noted that private actions could be

31



"based ... upon statutes pursuant to [the fourteenth and 

fifteenth amendments], such as 42 U.S.C'. Section 1971, 1973, 

1983 ." 121 Cong. Rec. H4734 (Daily Ed., June 2,' 1975 ).

Thus Section 2 of the Voting Rights Act neats all of

the criteria specified in Cannon_v.__University of Chicago,

99 S.Ct. 1946 ( 1979),. for implying a private cause of 

action^ First, it was enacted for the benefit of a special 

class of which the Plaintiffs in this case are members. 

Indeed, it is the same special class that is benefited by 

Section 5 of the Act, for which a private cause of action was

found, in A11en v.__State_Board of Elections, supra, the

primary case relied upon in Cannon. 99 S.Ct. at 1954.

Second, as was the case with Title IX of the Education 

Amendments of 1972, the legislative history of the Voting 

Rights Act plainly indicates that Congress intended to create 

a private remedy under Section 2. 99 S.Ct. at 1956. Third,

an implied private cause of action is necessary and helpful 

to the accomplishment of the statutory purpose of the Voting 

Rights Act, 99 S.Ct. at 1961, and the availability of 

private enforcement of Section 2 is supported by the 

Department of Justice, the agency charged with the 

responsibility for adrainistering the Act. 99 S.Ct. at 1962. 

Fourth, implying a private remedy under Section 2 does not 

involve an area basically of concern to the states, because 

no such problem is raised by a prohibition against invidious 

discrimination of any sort. Cannon, supra, 99 S.Ct. at 

1963 .

For all these reasons, the Court concludes that 

Plaintiff Leila G. Brown, et al. and the class they 

represent are entitled to seek a remedy in this Court for 

violations of their rights protected by Section 2 of the 

Voting Rights Act of 1965, as amended.

32



The Court has previously found that, os a ..latter of 

fact, the at-large election scheme for electing Mobile County 

School Commissioners was adopted and has been maintained for 

the purpose of minimizing the voting strength of the black 

minority. Accordingly, the-election plan violates Section 2 

of the Voting Rights Act of 1055. Uni ted 3tates_v. Uvalde 

Consolidated Independent School District, supra. The Court 

is of the opinion that this statutory violation entitles 

Plaintiff and the Intervenor United States to the relief they 

seek and that it should not be necessary to consider the 

other theories of relief they have advanced. However, 

because this action is already six years old and in view of 

the marked lack of certainty regarding the state of the lav

in the wake of C i ty of Mobil c__ v._ Bolden and subsequent Fifth

Circuit cases, the Court feels that it is advisable that it 

issue rulings in the alternative on other theories of relief 

that have been advanced.

City of Mobile v. B_ol de_n leaves open the question of 

whether an election scheme that effectively dilutes black 

voting strength violates Section 2 of the Voting Rights Act 

even if there is no invidious legislative intent. Uni ted

States v. Uvalde Consol i_d a t e d_ I_n d e p e n d e n t Scho o 1 D_i strict,

supra, 625 F.2d at 554 n. 12. In determining Congressional 

intent, a court should look to the language of the act, the 

act's structure, and the legislative history of the statute.

United States_v ._ _ Bo a r d _o f _C omm i s s i o n e r s__o f_3 heffield, 435

U.S. 110, 117-13 {1978). The statute should not be given on 

interprstation that would frustrate its underlying policies 

unless "Congress clearly manifested an intention" to limit 

the act. I_d- at 122.

The language of Section 2 forbids racial discrimination 

in voting in the broadest possible terms, specifying neither

33



p u r p o s e  n o r  e f f e c t :

No voting qualification or pre­
requisite to voting, or standard, 
practice, or procedure shall be 
imposed or applied by a State or 
political subdivision to deny or 
abridge the right of any citizen 
of the United States to vote on 
account of race or color, or in 
contravention of the guarantees 
set forth in Section 4(f)(2).

42 U.S.C. Section 1973. The rest of the Voting Rights Act 

fleshes out the more specific meaning of this broad language 

While the Act employs a variety of procedures and 

remedies, it has but a single substantive standard. That 

standard is most explicitly stated in Section 5, which 

prohibits states covered by Section 4's automatic "trigger" 

from enforcing a new law unless the state proves that it 

“does not have the purpose and will not have the effect of 

denying or abridging the right to vote on account of race or 

color." The Supreme Court has only recently reaffirmed that 

this language in Section 5 establishes an "effect-only" 

standard. City of Rome v. United States, 100 S.Ct. 1548 

(1930). Wherever else in the Act Congress spelled out the 

relevant evidentiary standard, it refused to exclude either 

discriminatory purpose or discriminatory effect. The 

legislative history of the Voting Rights Act reveals that 

early versions of some of these more specific sections 

referred solely to discriminatory "purpose", but that in 

every case Congress redrafted the section to cover both 

purpose and effect.1_/ Section 2, which contains the

1/ As originally drafted Section 5 applied to 
practices with a discriminatory effect, but not a 
discriminatory purpose. S. 1564, Section 8, 111 Cong. Rec 
28358. It was broadened to include both by the Senate

34



Section 4, which describes when a jurisdiction can 
remove itself from coverage of -Section 5, initially referred 
to denials of the right to vote “by reason of race". S.
1564, 111 Cong. Rec. 28358. It was changed by the Senate 
Committee to refer to tests or devices used "for the purpose" 
of denying the right to vote “on account of race", S. 1564, 
Section 4(a), 111 Cong. Rec. 28360, but was modified on the 
Jloor to include discriminatory effect, 111 Cong. Rec.

J u d i c i a r y  C o m m i t t e e .  Ill C o n g .  Rec. 2 8 3 6 0 .

The pocket trigger in Section 3(b) referred to
olofniminat0ry purPose in the Senate version, 111 Cong. Rec. 
28360, but the House bill included discriminatory effect as 
well, and that version was adopted by the Conference 
Committee. Ill Cong. Rec. 28370; H. Rep. No. 711, 89th 
Cong., 1st Sess., p. 1.

Challenges by the Attorney General to the use of 
tests or devices by jurisdictions which had bailed out under 
Section 4 at first were required to show discriminatory 
purpose, 111 Cong. Rec. 28360, but this too was amended to 
cover di scrimi natory effect. _I_d. at 28365 , 28370 .

broader language on which these other provisions are based, 

should be read in pari materi a with the other sections of the

Act* See Erlenbaugh v. United States, 409 U.S. 239, 243-44 

(1973).

The only difference between actions brought under 

Section 5 and those based on Sections 2 and 3 is that the 

(automatically covered) state has the burden of proof under 

Section 5, while the attorney general or private plaintiff 

has the burden of proof under sections 2 and 3. As Senator 

Scott of Virginia noted:

Substantially all the rights that 
are in the temporary legislation 
[i.e, Section 5] are in the perma­
nent legislation of the Voting 
Rights Act [i.e, Sections 2 and 3]. 
The principal difference refers to 
the burden of proof. Under the 
permanent provisions of the law, 
the Government must prove its case. 
Under the temporary provisions of 
the law there is a presumption of 
wrongdoing that has to be overcome 
by the state covered by the tempo-

35



rary provisions.

121 Cong. Rec. S13549 (Daily Ed., July 24, 1 975).

If Sections 2 and 5 co-nta'ined different substantive 

standards, a number of clearly unintended anomalies would 

result. Practices forbidden in Section 5 jurisdictions would 

be permissible in other states, even if they had the same 

discriminatory purpose or effect. Within a state covered by 

Sections 4 and 5, the same election law with the same purpose 

or effect could be unlawful in one town but not in another, 

based solely on when each was put in operation. See Perkins 

v. Matthews, 400 U.S. 379, 394-95 (1971). For sure, 

Congress singled out the Southern states for close procedural 

scrutiny under the Voting Rights Act, but it certainly did 

not intend that the substantive law would also be unique in 

the South; practices that are unlawful in Alabama should 

also be unlawful in California.

Thus the language of the Voting Rights Act, the 

structure of the Act, the legislative history and the 

circurnstances under which the Act was considered and adopted 

all support the conclusion that practices which have either 

the purpose or the effect of denying or abridging the voting 

rights of blacks violate Section 2. It would be inconsistent 

with the underlying policy of the Act to interpret as 

establishing one substantive rule of law for Southern states 

and another, less restrictive substantive standard for all 

the other state s .

There is dictum in Lodge v. Buxton, supra, slip op. 

at 4999 n. 11, stating that five justices in Bo1 den thought 

that Section 2 was coextensive with the fifteenth amendment. 

Of course, one of those five. Justice Marshall, thinks it is 

unnecessary to prove invidious intent under either the 

constitutional or statutory standard. The question is

36



academic, however, if Congress intended to establish an 

effect-only standard under the Voting Rights Act -- even if 

Congress mistakenly thought the' fifteenth amendment 

prohibited effective di scri mi natl on too. Because it is clear 

beyond question that Congress is empowered by Section 2 of 

the fifteenth amendment legislatively to prohibit voting 

practices with the mere effect of disadvantaging blacks, 

regardless of what proof is required in a case based solely 

on the Constitution. E. g., City of Rome v. United States, 

supra.

The Court concludes that, even if it had not found a 

racial legislative purpose behind the state law, the at-large 

method of electing Mobile County School Commissioners would, 

violate Section 2 of the Voting Rights Act of 1965 because it 

effectively dilutes or minimizes the voting strength of black 

c1ti zens.

The Constitutional Claims

The duty to remedy continuing 
effects of past fourteenth and fifteenth 

amendment violations

Where there is established a record of past official 

racial discrimination against the exercise of the franchise 

by blacks, the state has the burden to "come forward with 

evidence that enough of the incidents of the past [have] been 

removed, and the effects of past denial of access dissipated, 

that there [is] presently equality of access." Kirksey v. 

Board of Supervisors of Hinds County, 554 F.2d 139, 144-45 

(5th Cir. 1977) (en banc), cert, denied, 434 U.S. 468 

(1978). Kirksey distinguished the inquiry into intentional

37



discrimination called for by-Washington v. Davis, 426 U.S.

229 (1976), and Arl1ngton Helghts v .__Metropolitan Housing

Development Corp., 429 U.S. 252 (1970), from the provision T *

of a constitutionally required remedy for past constitutional 

violations whose effects linger on:

But nothing in these cases [Washington
v._Davis, and Arlington Heights) s'ug--
gests ffiat where purposeful arfd intentional 
discrimination already exists, it can be 
constitutionally perpetuated in the future 
by neutral official action.

554 F. 2d at 148 (footnote omitted).

While this remedial principle has received its most 

explicit construction and application in school desegregation 

cases, e . g . , Mil 1i ken v . B radley , 43 3 U.S. 267, 281-82 

(1077), the Supreme Court has made it clear that "a school 

desegregation case does not differ fundamentally from other 

cases involving the framing of equitable remedies to repair 

the denial of a constitutional right." Swann v. Charlotte - 

Mecklenburg Board of Education, 402 U.S. 1, 15-16 (1971). 

Indeed, this broad remedial principle was applied in a voting

context in Louisiana v.__U_n i ted_S_ta te s , 380 U.S. 145, 154

( 1965 ):

[T]he Court has 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.

There is a line of Fifth Circuit cases that hold that 

when blacks have been purposefully denied the right to vote 

in an election a fifteenth amendment violation is 

established, as well as violations of the Voting Rights Act 

of 1957 and 1965, and "the sole question remaining is the 

sort of relief to be granted." Bell v. Southwell, 376 F.2d

38



659, 662 (5th Ci r. 1967); accord Hammer v. Campbell, 358

F.2d 215 (5th Ci r. 1966); A1abama v. 'United States, 304

F . 2d 583 (5 th Ci r. 1962); Toney v. White, 348 F.Supp . 188

(W.O La 1972), a ff'd in part', and rev'd in part 476 F .2d

203, mod, on rehearing, 483 F . 2 d 310 (5th Cir. 1973) ( en

banc) . In providing such relief, the federal court has "all 

of the traditional powers and. faci1ities of a court of 

equity," and "may use any available remedy to make good the 

wrong done." Alabama v. United States, supra, 304 F.2d at 

590, quoti ng Bell v. Hood, 327 U.S. 678 ( 1946 ). In this 

line of cases, the Fifth Circuit approved such "drastic, if 

not staggering," remedies as voiding past elections and 

"freezing" the registration rights of blacks. Bell v.

Southwel1, supra, 376 F.2d at 662.

In its original opinion, this Court held that because 

blacks were then effectively disfranchised the 1919 statute 

governing the Mobile County School Board elections could not 

have been been racially motivated and thus could not be 

challenged under the fourteenth and fifteenth amendments. 

Brown v. Moore, supra, 428 F.Supp. at 1137. It now appears 

that this conclusion of law overlooked the rule of Kirksey 

and Bell v . Southwel1. Since blacks were officially denied 

any political participation in the legislative decision in 

1919, enactment of the statute was a per se violation of the 

fifteenth amendment. Consequently, this Court has a duty to 

injoin future use of the 1919 election scheme unless the 

state can affirmatively demonstrate that it no longer 

disadvantages the class of discriminatees . The only 

distinction between Bell v. Sou thwel1 and the instant case 

is that the legislative process from which blacks were 

unconstitutionally barred here took place over 60 years ago. 

But as McMiTl an v . E sc amb i a C ou n ty , s_upra, Slip Op. at

39



4328, states, the passage of. time cannot transform an 

unconstitutional system Into a constitutional one, so long as 

1t continues adversely to effect the voting rights of persons 

discriminated against. Thus, Instead of insulating it from 

constitutional attack, the " race-proo f" ci rcumstances of the 

statute s adoption invoke an affirmative duty on this Court 

to remedy its ongoing discrimlnatory effects.

Based on the evidence and the findings of fact herein, 

the Court reaffirms its earlier conclusion that past 

discriminatory customs and laws that were enacted for the 

sole and intentional purpose of extinguishing or minimizing 

black political power are responsible for the continuing 

disadvantageous effect that the School Board election system 

has on black voters. See Brown v. Moore, supra, 428 F.Supp. 

at 1141. Accordingly, the Court concludes that the state has 

an affirmative constitutional obligation to remedy the- 

ongoing effects of prior discrimination by disestablishing 

the at-large election system for electing Mobile County 

School Commissioners, regardless of its legislative purpose.

The legislative intent of the school 
board el ec ti on plan

City of Mobile v. Bolden, 100 S.Ct. 1490 ( 1980 ), 

holds that an invidious racial motive on the part of those 

who control legislation invalidates an at-large local 

election plan under the fourteenth and fifteenth amendments. 

However, there is no majority view 1n Bolden about the proper 

legal test for proving invidious intent. Justice White 

believed that an aggragate of the Zimmer v. McKeithen 

factors proves racial purpose by a "totality of 

circumstances" approach, 100 S.Ct. at 1518. Justices

40



Blackmun, Brennan, and Marshall agreed. Id. at 1507, 1520, 

1538. Justice Stevens would have required objective proof 

that the election plan was either totally irrational or 

motivated solely by racial rea'sons. Jjd. at 1512. The 

Stewart plurality would apply the guidelines of Arli ngton 

Heights, and Personnel Adm'r of Massachusetts v. Feeney, 442 

U.S. 252 (1979), but would focus more on the subjective 

intent of lawmakers than on the way the system operates. 

According to the plurality, "Zimmer may afford sone evidence 

of a discriminatory purpose [but] is not of itself sufficient 

proof of such a purpose-." 100 S.Ct. at 1503.

In its original opinion, this Court held that "[t]here 

is a 'current' condition of dilution of the black vote 

resulting from intentional state legislative inaction...." 

Brown v. Moore, supra, 428 F.Supp. at 1139. Five justices 

in City of Mobile v. Bolden were of the opinion that a 

similar finding made by this Court in that case was 

adequately supported by the evidence (Stevens, Blackmun, 

White, Brennan, and Marshall). But one of the five, Stevens, 

thought that more was required to prove a constitutional 

claim, even though his extreme view was not accepted by the 

other eight members of the Court. It appears, therefore, 

that to prove a case of intentional vote dilution that 

satisfies a majority of the Supreme Court, at least in this 

case, the demands of the Stewart plurality must be met. 

McMillan v. Escambia County, supra.

The holding of the Bol den plurality is "that the 

primary, if not the sole, focus of the inquiry must be on the 

intent of the political body responsible for making the 

districting decision." 100 S.Ct. at 1512, (Stevens 

concurring). The requisite intent must be discerned in the 

evidence by use of the legal principles of Washington v.

41



Davis, 426 U.S. 229 (1976);- Arlington Heights v._

M e t r ojj o 1_ i_ t a n_H o u s i_ n g__D e v e 1 o pm e n t_C orporation, 429 U.S. 252 

(1977 ); and Feeney, supra. 100 S.Ct. at 1497 n. 10; 

accord, 100 S.Ct. at 1539, n. -39, (Marshall dissenting).

To satisfy the intent standard of the Holden plurality, 

discriminatory purpose of some sort oust he pro/ed; however, 

plaintiffs are not required to show that it was the sole 

purpose. McMillan v. Escambia County, F.2d (5th Cir., Feb. 

19, 1981) , SI ip Op. at 4321 .

This leaves the question of "what type and how much 

evidence is required to_establish proof of a discriminatory 

purpose." Lodge v. Buxton, supra, slip op. at 5009. The 

divided panel in Lodge was able to read the six opinions in 

Bolden together in a manner that arguably salvages the 

evidentiary standards of Zimmer v. McKeithen as proof of 

invidious intent. This analysis pro/ides little help in the 

instant case, however, because, as the Lodge majority 

concedes, the Bolden plurality found the evidence adduced and 

analyzed by this Court according to Zimmer insufficient to 

prove racial intent. And, as Judge Henderson noted in his 

bodge dissent, "[a]n exposition of evidence more detailed 

than that made by the district judge in the Mobile case is 

seldom seen." Slip op. at 5020.

But even the Lodge majority does not deem inappropria to 

more direct proof of the motives behind the decision to adopt 

or retain at-large elections; it simply doubts the 

likelihood of plaintiffs being able to uncover such 

"inculpatory documents". Slip op. at 4998 n. 8, 5009. 

However, the evidence presented in this case on remand, like

similar direct evidence in McMillan v.__Escambia County,

shows that Judge Fay has underestimated the availability of 

the more traditional indicia of "smoking guns." Accordingly,

42



w i t h o u t  r e p e a t i n g  its a n a l y s i s  of the Z i m m e r  e v i d e n c e ,  in

which the Court has already found a strong inference of 

invidious purpose, this Court will analyze the more direct 

evidence of intent by the criteria set out in Arli ngton 

Heights itself, just as the panel in MeMi 11 an did.

The evidentiary standards this Court will apply in 

analyzing the evidence for an- invidious legislative purpose 

are as follows:

(1) The impact of the election plan -- whether it 

bears more heavily on one race than on another -- provides a 

starting point. Arl i ngton Heights, s_upra, 429 U.S. at 265. 

Thereafter, "a sensitive inquiry" should be made into the 

following types of evidence:

(2) The historical background of the legislative 

decision, "particularly if it reveals a series of official 

actions taken for invidious purposes." _I_d. at 267.

(3) The "specific sequence of events" leading up 

to the decision. Sudden changes that counteract events 

favoring the minority group can show invidious intent. Id.

(4) "Departures from the normal procedural 

sequence". Id.

(5) "Substantive departures ... particularly if 

the factors usually considered important by the decisionmaker 

strongly favor a decision contrary to the one reached." Id.

(6) The legislative history, especially 

contemporary statements by lawmakers, their minutes and 

reports. I d .  at 268.

(7) The trial testimony of those involved in the 

decision making process. Id.

Feeney has been interpreted as adding a substantial 

gloss to the Washington v. Oavls - Arli ngton Heights 

pri nc i p1es :

43



"Discriminatory purpose," however, implies 
more than Intent as volition or intent as 
awareness of consequences. It implies that 
the dec i s 1 onmaker 1 n this case a state 
legislature, selected or reaffirmed a 
particular course of action at least in 
part "because of," not merely "in spite of," 
its adverse effects upon an identifiable group.

Feeney, supra, 60 L.Ed.2d at 837-88 (citation and footnotes

omitted). But this Feeney rule does nothing more than reject

as a complete measure of constitutional intent mere

"awareness of consequences" or "foreseeability" standing

alone. Justice Stewart hastened to explain in Feeney that

this does not mean that'"1nevitability or foreseesbi1ity of

consequences of a neutral rule has no bearing upon the

existence of discriminatory intent." 60 L.Ed.2d at 888 n.

25. Indeed, the record in that case showed that "all of tne

available evidence affirmatively demonstrate[d]" that

Massachusetts' veteran's preference had a completely benign

purpose. Id. (Emphasis added).

The 1876 statute

In 1852, the Alabama Legislature adopted a 

twelve-member Mobile County School Board all elected 

at-large, with some residency requirements . This system 

prevailed through the Civil War. In 1853, during 

Reconstruction, the Republican controlled State Board of 

Education appointed George L. Putnam, director of the 

Freedmen's schools in Mobile, to be superintendent of all 

Mobile County public schools. The white conservative Schaol 

Board began a campaign of resistance to the takeover of the 

public schools by persons sympathetic with the interests of 

black citizens and school children. As described more fully

4 4



- t

in the findings of fact, thi-s dispute, in circumstances 

remarkably like those which would be repeated some 100 years 

later in 1975 and 1976, involved even open defiance of lawful 

court orders by the white school - commissioners . A compromise 

was worked out in 1870 that called for the election of a new 

Mobile County School Board in a manner that was designed to 

assure black representation: twelve board members elected

at-large, but each voter restricted to voting for only nine 

(9) candidates. As a result, blacks and/or their Republican 

sympathizers were elected to the Board in, albeit in minority 

numbers. However, the minority representation feature was 

removed in 1876 by the first Redeemer Legislature, which 

installed the election plan which prevails to the present 

day, whereby all Board members run at large and the voters 

may cast ballots for the whole number of seats to be filled.

Applying the Arl 1 ngton Heights - Fee_ney standards, the 

impact of the 1876 election plan, the historical background 

of the legislative decision, the sequence of events leading 

up to its enactment and the legislative history inexorably 

compel the conclusion reached by the expert historians at 

trial that the present at-large election system for the 

Mobile County School Board was adopted with the substantial 

if not sole intent of precluding the possibility that blacks 

or their sympathizers could be elected. The change was made 

in 1876 from a scheme that was designed to permit minority 

representation to one that assured that blacks could not be 

elected because of, not merely in spite of, the adverse 

impact it would have on blacks' voting rights.

Racial intent in the retention 
of the present at-large scheme

45



Applying the standards-of Arlington Heights and Feeney 

to the evidence concerning the events in 1975 and 1975, this 

Court concludes that the at-large School Board elections have 

been retained for invidious racial reasons:

(1) This Court's finding that the present 

at-large system effectively dilutes the voting strength of 

blacks 1n Mobile County provides the "starting point" of the 

Arli ngton Heights analysis.

(2) There i s an hi storlcal background of state 

action to undermine blacks' voting rights in Alabama and in 

Mobile County in particular, also described in the findings 

of fact supra♦ The Reconstruction efforts of conservative 

Democrats to guard against the election of blacks to the 

School Board, 65 years of state-imposed disfranchisement, the 

white-only primary and the Mobile County School Board’s 

massive resistance to school desegregation all set the stage 

for the legislative activity in 1975.

(3) The sequence of events leading up to the 

several decisions of the incumbent school commissioners that 

blocked change to district elections in 1975 and 1976 shows a 

pattern of deceptive counter measures that thwarted 

legislative initiatives on behalf of black voters. They

1ncluded:

(4) procedural_departures such as the Board’s

state court attack on the Kennedy Act and their repeated 

attempts to postpone the federal court trial, and

(5) substantive departures, particularly the 

Board's about-faces on the state-law validity of both the 

Kennedy Act and the Sonnier Bill.

(6) This Court had the opportunity to observe and 

to weigh the trial testimony of the decisionmakers, all of 

which compelled it to conclude that deception and duplicity

46



1 • •

had been used for the purpose of frustrating legislative 

relief for Mobile County's black minority.

There were no predominating nonracial bases for the 

Defendants' actions; they were tarried out because of, not 

in spite of, their racial impact. The school commissioners 

never attempted to justify their efforts to prevent 

legislative change on the usual good government grounds for 

at-large elections; to the contrary they repeatedly and 

publicly proclaimed support for single-member districts. 

Their"excuses for challenging the Kennedy Act and for 

delaying federal court action were alleged concerns over 

technical problems in the legislation. That these were mere 

pretexts for discrimination is conclusively demonstrated by 

the white school commissioners' Sonnier Bill ruse, their 

refusal to provide the necessary support for new legislation 

in subsequent years, and their continued post-trial maneuvers 

to isolate and to minimize the powers of the two black board 

members elected from districts in 1978.

The Court concludes that the at-large election system 

of Mobile County School Commissioners has been maintained, at 

least in part, for racially discriminatory purposes.

Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED 

a s follows:

A. The Court declares that the present at-large system 

for electing Mobile County School Commissioners, adopted in 

1876, No. 242,. Ala. Acts 1875-76, p. 363, and amended in 

1919, No. 229,; Ala. Acts 1919, p. 73, violates the rights \

of Plaintiffs and the class of black voters of Mobile County 

guaranteed by Section 2 of the Voting Rights Act of 1965, as 

amended, 42 U.S.C. Section 1973, and by the fourteenth and

47



fifteenth amendments to the -Constitution of the United 

States .

B. The Defendants, and each of them, their officers,
*

agents, attorneys, employees and-those acting in concert with 

them or at their direction, are hereby permanently ENJOINED 

from conducting further elections of Mobile County school 

commissioners under the aforesaid at-large system.

C. Pursuant to the principles enunciated in Wise v .

Li pscomb, 437 U.S. 535 ( 1978 ), the Court will withhold entry 

of a remedial order to provide the State of Alabama the 

opportunity to legislate its own remedy, satisfying all 

- constitutional requ1rements, prior to the primary and general 

elections 1n 1983. If, upon motion of one or more of the 

parties, or upon the Court's own motion, it appears that no 

such legislative response will be made in time for the 1982 

elections, the Court will carry out its responsibilities 

under East Carroll Parish School Board v. Marshal 1, 424 U.S. 

636 (1976), to order its own single-member district election 

pi an .

D. Plaintiffs are entitled to recover their costs and 

attorneys' fees, in amounts to be determined by subsequent 

orders of this Court.

E. This Court retains jurisdiction of this action 

pending further orders to ensure compliance with this decree.

DONE this ________  day of _____ , 1981.

U N I T E D  S T A T E S  T m T K T C T ' J U D G E

48