Brown v. Moore Jurisdictional Statement

    IN THE

Supreme Court o( tlje ®mteii States

NO.

LEILA G. BROWN, ET AL,
Plaintiffs-Appellees,

JOHN L. MOORE, ET AL,
Defendants,

ROBERT R WILLIAMS, ET AL,
Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

JURISDICTIONAL STATEMENT

ROBERT C. CAMPBELL, III 
3763 Professional Parkway 
Mobile, Alabama 36609

Counsel for Appellants, Board of 
School Commissioners for Mobile 
County, Alabama

OF COUNSEL:
SINTZ, PIKE, CAMPBELL & DUKE 

3763 Professional Parkway 
Mobile, Alabama 36609

Washington, D.C. • CLB PUBLISHERS' • LAW PRINTING CO. •  1202) 393-0625



(i)

TABLE OF CONTENTS

Page
JURISDICTIONAL STATEMENT...................................   1
OPINION BELOW............................................................... 2
JURISDICTION......................................................................2
QUESTIONS PRESENTED.................................................3
STATUTES INVOLVED...............     5
STATEMENT......................................................................... 5

A. Mobile County Public School System Was
Established With A Racially Neutral, Good 
Government Purpose....................     7

B. Mobile County’s Electoral System Of Electing
School Board Commissioners Provides Equal 
Access For All Persons To The Political Pro­
cess, Blacks Participate Actively And Exercise 
Significant Voting Power............................................. .9

C. Mobile County School Board Commissioners
Are Equally Responsive To Black And White 
Citizens...................................................................... 14

D. Mobile County’s Policy In Favor Of Its At-
large Election Of School Board Commission­
ers Is Not At A1 “Tenuous” ....................................18

E. Racially Discriminatory Purpose Is An Es­
sential Element Of An Equal Protection Viola­
tion Which The Plaintiffs-Appellees Failed To
Prove..........................................   19

THE QUESTIONS ARE SUBSTANTIAL
A. ALL THE QUESTIONS ARE SUB­

STANTIAL AS THE COURT'S ORDER 
AFFECTS THOUSANDS OF MOBID 
IANS AND ABROGATES AN ELEC­
TORAL SCHEME IN USE FOR ALMOST 
60 YEARS 21



(ii)

B. THE ORDERS APPEALED FROM ARE
JUDICIAL LEGISLATION VIOLATING 
THE PRINCIPLES OF FEDERALISM 
AND THE TENTH AMENDMENT OF 
THE CONSTITUTION OF THE UNITED 
STATES................................................................. .21

C. THE DISTRICT COURT’S ORDER AS 
AFFIRMED BY THE COURT OF AP­
PEALS EFFECTIVELY DISENFRAN­
CHISED ONE SCHOOL BOARD COM­
MISSIONER’S RIGHT TO VOTE AND 
RIGHT TO RUN FOR REELECTION AS 
AN INCUMBENT TO THE SCHOOL 
BOARD IN VIOLATION OF HIS CON­
STITUTIONAL RIGHTS......................................... 22

CONCLUSION ...................................................................... 26
APPENDICES

A. Opinion of the Court of Appeals, entered June
2, 1978.......................................................................  la

B. Opinion of the District Court, entered De­
cember 9, 1976, as amended December 13,
1976 ............  . . . ,1b

C. Order of the District Court denying Appellants’
Motion for Rehearing, entered January 4, 1977__ __ ,1c

D. Judgment of the District Court, entered Janu­
ary 18, 1977 ...................................................      .Id

E. Local Acts of Alabama, 1919, p. 73 ............................. le
F. Notice of Appeal filed in the Court of Appeals

on August 18, 1978......................................... ......... If



TABLE OF AUTHORITIES

Page
CASES:
Blacks United for Lasting Leadership, Inc. v. City of

Shreveport, 571 F.2d 248 (5th Cir. 1978).................. .7,18
Beer v. United States, 425 U.S. 130 ................................... 6
Bolden v. City of Mobile, Alabama, 423 F. Supp. 384

(S.D. Ala. 1976); 571 F.2d 238 (5th Cir. 1978)............ 11
Brades v. Rapides Parish Police Jury, 508 F,2d 1109

(5th Cir. 1975)..........................................   ..4
Cowan v. City of Aspen, 181 Colo. 343,509 P.2d 1269

(1973).................    25
David v. Garrison, 553 F.2d 923 (5th Cir. 1977)..............  22
Doran v. Salem Inn, Inc., 422 U.S. 922................................ 3
Gordon v. Leatherman, 450 F.2d 562 (5th Cir. 1971)....... 24
Hendrix v. Joseph, 559 F.2d 1265 (5th Cir. 1977) .......... 6,22
McGill v. Gadsden County Commission, 535 F.2d

277 (5th Cir. 1976)...................................................... 4,20
McKinney v. Kaminsky, 240 F. Supp. 289 (M.D. Ala.

1972)...............................................................................  24
Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976)

‘’Nevett I” .....................................................................    .4
Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978)

“Nevett II” ......................................................................... 7
New Orleans v. Dukes, 472 U.S. 297.................................... 3
United Gas Pipe Line Company v. Ideal Cement

Company, 369 U.S. 134.................     .3
United Jewish Organization v. Carey, 430 U.S. 144 . . . . .  .4,20
Village of Arlington Heights v. Metropolitan Housing

Corporation, 429 U.S. 252.....................................   .3,20
Washington v. Davis, 426 U.S. 299 .................................. 3,20



Whitcomb v. Chavis, 403 U.S. 125............................. 6,20,21
Zimmer v. McKeithen, 485 F.2d 1972 (5th Cir. 1973).. 4,5,19 
CONSTITUTION AND STATUTES:
Acts of Alabama, 1825-26, p. 35-36.....................................   .7
Acts of Alabama, 1853-54, p. 8 ............................................ .19
Acts of Alabama, 1876, p. 363..... ...................................... .. 8
Civil Rights Act of 1871, 42 U.S.C. 1983.............................. 3
Code of Alabama § 16-8-1 (1975)..............    19
Code of Alabama § 16-8-4 (1975) .........................................23
Local Acts of Alabama, 1919, p. 7 3 ..................................3,5,8
U.S. Constitution

Amendment I ..........................   3
Amendment X ..................................................................5,21
Amendment X I I I ................................................................. 3
Amendment XIV................................................... 1,3,5,19,20
Amendment XV............................................................... 1,3,5

Voting Rights Act of 1965 as amended, 42 U.S.C.
§ 1973, et seq .................................................................. 3

28 U.S.C. § 1254(2).............................................................3
MISCELLANEOUS:
Carpenenti, “Legislative Apportionment Multi- 

Member Districts and Fair Representation: 120 U. 
of Pa. Law Review, 666 (1972)....................................... 20

(iv)



IN THE

Supreme Court of tfje ®mteb States*

NO.

LEILA G. BROWN, ET AL,
Plaintiffs-Appellees,

v.

JOHN L. MOORE, ET AL,
Defendants,

ROBERT R WILLIAMS, ET AL,
Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

JURISDICTIONAL STATEMENT

Appellants appeal from the Judgment of the United States
Court of Appeals for the Fifth Circuit, entered on June 2, 
1978, affirming the Judgment and Orders of the United 
States District Court for the Southern District of Alabama, 
decided December 9, 1976. These hold that the existing 
electoral structure, the multi-member, at-large election of 
School Commissioners for Mobile County, results in an 
unconstitutional dilution of black voting strength under the 
Fourteenth and Fifteenth Amendments to the United States 
Constitution.



2

The primary elections scheduled for September 5, 1978, 
are to comply with the District Court’s Order. On August 18, 
1978, the Appellants herein filed an Application for Stay 
and Recall of Mandate to this Honorable Court asking that 
the elections be stayed pending this Honorable Court’s 
review of the merits of this appeal. Appellants submit this 
Statement to show that the Supreme Court of the United 
States has jurisdiction of the appeal and that substantial, new 
and novel questions are presented under the Constitution of 
the United States.

OPINION BELOW

The Opinion of the Court of Appeals for the Fifth Circuit 
decided on June 2, 1978, is unreported. (5th Cir. No. 77- 
1583) The matter was disposed of on that Court’s summary 
calendar pursuant to its Local Rule 18. The District Court’s 
opinion is recorded in 428 F. Supp. 1123 (1976). Both 
Opinions are attached hereto as Appendices A and B 
respectfully. A motion for re-hearing was filed by the 
Appellants which was denied by the District Court on 
January 4, 1977. The Order denying the rehearing is 
attached hereto as Appendix C. The Judgment of the District 
Court, entered on January 18,1977, is unreported. A copy of 
the judgment is hereto attached at Appendix D.

JURISDICTION

This suit was brought as a class action in behalf of all black 
citizens of Mobile County against the Board of School 
Commissioners of Mobile County, the Probate Judge, the



3

Court Clerk of Mobile County, and the Sheriff of Mobile 
County, contending that the at-large election system of 
electing school board commissioners unconstitutionally 
dilutes their voting strength in violation of the First, 
Thirteenth, Fourteenth, and Fifteenth Amendments to the 
Constitution of the United States; under the Civil Rights Act 
of 1871,42 U.S.C. §1983; and under the Voting Rights Act 
of 1965, as amended, 42 U.S.C. §1973, et seq. The 
judgment of the District Court was entered on January 18, 
1977; an Appeal was taken to the Court of Appeals, which 
rendered judgment affirming the District Court on June 2, 
1978. Notice of Appeal was filed in the Court of Appeals on 
August 18, 1978. (Appendix F)

Mobile County’s method of electing school board com­
missioners was adopted in 1919 pursuant to a state statute, 
Local Acts of Alabama, 1919, p. 73. Because the subject of 
this appeal is a judgment holding this state statute of local 
application unconstitutional, the jurisdiction of the Supreme 
Court to review this decision by appeal is conferred by 28 
U.S.C. §1254(2). United Gas Pipe Line Company v. Ideal 
Cement Company, 369 U.S. 134; Doran v. Salem Inn, Inc., 
422 U.S. 922, New Orleans v. Dukes, 472 U.S. 297.

QUESTIONS PRESENTED

1. Whether or not the District Court erred in holding that 
a showing of impermissible racial purpose or intent was 
constitutionally unnecessary to Plaintiffs-Appellees’ claim 
that Mobile County’s at-large electoral system is violative of 
the Fourteenth Amendment in light of the decisions of the 
United States Supreme Court in Washington v. Davis, 426 
U.S. 229 (1976); Village o f Arlington Heights v. Metro­



4

politan Housing Corporation, 429 U.S. 252, and United 
Jewish Organization v. Carey, 430 U.S. 144 and the 
decisions of this Court in Bradas v. Rapides Parish Police 
Jury, 508 F.2d 1109 (5th Cir. 1975); Nevett v. Sides, 533 
F.2d 1361 (5 th Cir. 1976); and McGill v. Gadsden County 
Commission, 535 F.2d 277 (5th Cir. 1976)?

2. Whether the District Court erred in failing to make 
specific findings as to minority access to the slating process, 
such as the existence or absence of screening organizations, 
petition requirements, or other barriers to minority group 
members?

3. Whether the District Court’s conclusory finding that 
“no black person has ever been elected School Com­
missioner in Mobile County” justifies the District Court to 
make a finding that a lack of openness exists in the slating 
process?

4. Whether or not the District Court erred in assuming 
that only black political participation which led to election of 
black commissioners would indicate constitutionally suf­
ficient access by blacks to the School Commissioners’ 
election?

5. Did the District Court err in making no specific 
findings as to whether or not the Mobile County School 
System was presently providing equal educational services 
to all communities within the county?

6. Whether or not the District Court erred in making no 
specific findings concerning the distribution of educational 
jobs and the appointments of blacks to various faculty and 
administrative positions?

7. Whether or not the District Court erred in ruling that 
the primary factor as identified in the case of Zimmer v. 
McKeithen, 485 F.2d 1297 (5th Cir. 1973), that is, the 
strength of state policy favoring at-large elections, was



5

neutral, in light of the fact that no finding was made by the 
Court showing a “ tenuous” state policy?

8. Whether the District Court erred in holding that past 
unresponsiveness of the School Board and past racial 
discrimination preclude blacks from present effective par­
ticipation in the at-large system of electing School Com­
missioners of Mobile County?

9. Whether the Plaintiffs have met their burden of 
proving, in aggregate, the primary factors as stated in the 
case of Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 
1973)?

10. Whether or not the District Court’s Order is, in fact, 
judicial legislation violating the principles of Federalism and 
the Tenth Amendment of the Constitution of the United 
States?

11. Whether or not the Constitutional Rights of one of the 
School Board Commissioners have been violated by the 
District Court’s Order, his right to vote as a school board 
member and his right to run again as an incumbent for the 
Mobile County School Board having been disenfranchised?

STATUTES INVOLVED

This case involves the constitutionality under the 
Fourteenth and Fifteenth Amendments to the U. S. Con­
stitution of Local Acts of Alabama, 1919, p. 73, setting forth 
the method of electing School Board Commissioners in 
Mobile County, Alabama. Said Act is set forth in Appendix 
E hereto.

STATEMENT

The District Court granted Plaintiffs prayer that the 
Defendants be enjoined in certifying the results of any



6

election for the School Board under the at-large election 
system and from failing to adopt a single member district 
plan, redistrict as set out in the District Court Order and 
make and hold the election as redistricted. The evidence 
below did not show that the present form of electing Mobile 
County School Board members was established with a 
racially discriminatory purpose. The evidence below shows 
that there are no barriers, petition requirements or screening 
organizations to minority group members; that blacks are not 
denied participation in the at-large political process, but to 
the contrary, the facts overwhelmingly indicate that blacks 
participate actively and influentially. The District Court 
based its Order upon a putative constitutional right of blacks 
to elect blacks to the Mobile County School Board. Finding 
that the at-large electoral scheme was not arranged to 
guarantee such a result, the District Court ordered the 
adoption of the single-member district plan. The United 
States Supreme Court, however, has made it crystal clear 
that members of a minority group do not have a federal right 
to be represented in proportion to their numbers in the 
general population. Whitcomb v. Chavis, 403 U.S. 125, 
149; Beer v. United States, 425 U.S. 130.

The evidence below further shows that the findings of the 
District Court merely reflected conclusions. The Court’s 
conclusory statements on the most important questions of 
black access to and participation in the political process in 
the at-large system of electing school board commissioners 
of Mobile County are clearly in error.

The Fifth Circuit itself in Hendrix v. Joseph, 559 F.2d 
1265, 1268 (1977) stated;

Conclusory finding by the trial court that there has been
dilution is not sufficient. See Nevett v. Sides, 533 F.2d
1361 (5th Cir. 1976). It remains therefore to address



7

each of the factors through which a plaintiff may show 
dilution. In doing so, we keep in mind that while no 
factual finding may be disturbed unless clearly er­
roneous, the failure to findfacts necessary to support a 
result in an error at law. (Emphasis supplied)

The District Court’s Order failed also to make findings of 
fact sufficient in detail and exactness to indicate the factual 
basis for the ultimate conclusion reached by the Court. See 
Blacks United fo r Lasting Leadership, Inc. v. City o f  
Shreveport, 571 F.2d 248, 250 (5th Cir. 1978). An 
Appellate Court cannot second-guess what additional 
evidence a District Court might have entertained in its 
conclusion. The Court must make specific findings. See Id. 
at p. 253. Also, because the Plaintiff-Appellees, did not 
demonstrate a lack of access to the political processes in 
Mobile County and did not establish that the Board of School 
Commissioners were unresponsive to the needs of the black 
community, this weighs heavily against an inference of 
intentional discrimination because the incumbents are not 
visibly exploiting their majority status to the detriment of the 
minority constituents. See Nevett v. Sides, 571 F.2d 209 
(5th Cir. 1978) ‘’Nevett II” .

A. MOBILE COUNTY PUBLIC SCHOOL 
SYSTEM WAS ESTABLISHED WITH A 
RACIALLY NEUTRAL, GOOD GOV­
ERNM ENT PURPOSE.

The public school system of Mobile County was es­
tablished on January 10, 1826, by the Legislature of 
Alabama, which also brought into existence the Board of 
School Commissioners (Acts of Alabama, 1825-26, p. 35- 
36). This was some 28 years before the establishment of a 
public school system for the remainder of Alabama in 1854.



8

At that time, the Legislature provided for a school board 
composed of citizens of the county elected by the voters of 
the county in country-wide, at-large elections. The only 
testimony before the District Court upon the question of 
whether this legislation establishing the school system in 
1826 was enacted for a discriminatory purpose was that of 
Dr. Melton McLaurin, an historian who testified in behalf of 
the Plaintiffs as an expert witness. From Dr. McLaurin’s 
testimony, it is entirely clear that this statute was not passed 
with a discriminatory purpose in mind, and could not have 
passed with a discriminatory purpose or intent, because 
black people could not even vote in the State of Alabama at 
that time, were not a political factor, and were, in Dr. 
McLaurin’s words, a political non-entity. (Tr. 217, 241).

Over the years, by passage of various local acts in the 
Legislature, adjustments were made in various aspects of the 
Mobile County Public School System and of the School 
Board itself. Throughout, however, the manner of the 
election of the Board, country-wide at-large elections, 
remains consistent. One deviation occurred in 1876 (Acts of 
Alabama, 1876, p. 363), when the Legislature passed an act 
requiring that at least two of the then nine commissioners 
must reside within six miles of the courthouse of the county.

The statute which provided for the present existence of the 
Board came into being as a local act passed by the 
Legislature in 1919. Local Acts of Alabama, 1919, p. 73 
(See Appendix “ E ” attached hereto). On that occasion, the 
Legislature set the number of Board members at five and 
continued to provide for the Board members to be elected by 
the voters of the county at-large, for staggered terms of six 
years with elections held every two years. In his testimony, 
Dr. McLaurin also stated that this statute passed in 1919 did 
not have a racially discriminatory purpose, simply because



9

in the adoption of the Constitution in 1901, the State of 
Alabama had again, after brief franchisement during the 
reconstruction years, completely disenfranchised blacks and 
removed them from the political process within the state so 
effectively so as to again cast them as a political non-entity; 
and since this state of affairs endured from the adoption of the 
Constitution in 1901 until approximately 1944, according to 
Dr. McLaurin, the statute passed by the Legislature in 1919, 
could not have been passed for discriminatory purposes. 
(TR. 220-222, 242).

There was no testimony below upon this aspect of the case 
other than that of Dr. McLaurin and his testimony rather 
than establishing that the statute was passed for a dis­
criminatory purpose, clearly establishes exactly the op­
posite. Not only, therefore, have the Plaintiffs not carried the 
burden of proving that the statute was enacted for dis­
criminatory purpose, but to the contrary, it has been 
affirmatively proven that the statute was not enacted for a 
discriminatory purpose.

B. MOBILE COUNTY’S ELECTORAL SYS­
TEM OF ELECTING SCHOOL BOARD 
COM M ISSIONERS PROVIDES EQUAL 
ACCESS FO R ALL PERSONS TO THE 
POLITICAL PROCESS, BLACKS PAR­
TICIPATE ACTIVELY AND EXERCISE 
SIGNIFICANT VOTING POWER.

1. There are no screening organizations, petition re­
quirements or barriers to black participation.

The evidence is uncontradictive below that every phase of 
the processes of registration, voting, qualification and 
candidacy for the Mobile County School Board Commission



10

is as open to the blacks as to whites.
There are no white-dominated slating organizations in 

Mobile County. There are no formal prohibitions on 
registration or voting. No political party structure fails to 
solicit black participation. The at-large system of electing 
School Board Commissioners in Mobile County is con­
ducted on a non-partisan basis.

The District Court found that “ there are no formal 
prohibitions against blacks seeking office in Mobile 
County”. (428 F. Supp. 1123 [1976]).

2. All candidates seek support of black voters because the 
black vote is essential to winning an election in Mobile 
County.

The testimony is replete with evidence that candidates 
for the Mobile County School Board actively seek black 
votes. (Tr.629, 697, 885, 971, 1277, 1279, 1293, 1305).

Defendants’ witness, John H. Friend, testified as follows 
(Tr. 885):

Q. All right, sir. How many times have the dominant 
black wards voted for the candidates receiving the 
most votes?

A. Since 1960, there have been 27 races. In 19 of those 
races persons in black wards, the dominant black 
wards, voted for a winner.

Further, Mr, Friend stated (Tr. 971):
Q. So you’re saying that some of the candidates who won 

whould have lost if the blacks hadn’t voted for them, is 
that right?

A. What I am saying is that blacks reversed their voting 
pattern. . .  yes, the two top men, it would have changed 
it. This comes as no surprise to me. In my experience, I 
have found that there is something that candidates are 
very much aware of in the Mobile area; that the black 
vote counts.



11

The Court stated (Tr. 992):
THE COURT:
If this would help you any , Mr. Blacksher, I think that you 
can safely state that the black vote is extremely important 
given certain context. Politics is a dynamic thing. There 
are many factors involved in any election . . .

Plaintiffs’ witness, State Representative Gary Cooper, 
testified as follows (Tr. 412):

Q. Did you receive endorsement and support of the 
Teamsters Union:

A. Yes, sir.
Q. Did you consider that support important?
A. Not necessarily, in my district, sir.
Q. Did you receive the endorsement and support of the 

Non-Partisan Voters League?1 
A. Yes, sir.
Q. Did you consider that support important?
A. Reasonably, sir.
Q. Did you receive endorsement of the Mobile Press 

Register?
A. Yes, sir.
Q. Did you consider that endorsement important?
A. That is questionable, sir.

It is obvious from the above testimony that Mr. Gary Cooper 
placed greater value on the black vote than the union or 
newspaper endorsement.

‘The NPVL was formed in 1963 as the local arm of the NAACP, after 
the local branch was enjoined from political activities in Mobile for 
failure to surrender its membership list. The NPVL is still a separate 
branch of the NAACP. (Testimony of Plaintiff, Wiley Bolden, in the 
case of Bolden v. City o f Mobile, Alabama, 423 F. Supp. 384 [1976]; 
affd 571 F.2d 238.)



12

Plaintiffs’ witness, Senator Edington, testified as follows 
(Tr.602, 3):

Q. Isn’t it true that almost all candidates for countywide 
office that you have known that wanted the vote of the 
black community?

A. Well, basically, anyone running for office wants all the 
votes he can get.

Q. Wouldn’t you say the black community here in Mobile 
County is the most cohesive voting group that we have 
in this county?

A. I would say up until the last probably two years. I don’t 
know that it would be really true right now, but by and 
large I know of no other group that votes together 
nearly so much as the black community of this city or 
this county.

Q. Well, it might not be true today, wouldn’t you say that 
the Non-Partisan Voters League was the single most 
effective endorsing organization in our county?

A. In general, yes. Now, on an actual union-management 
question, possibly the Southwest Alabama Labor 
Council could have similar effect, but, basically, for 
the general issues, the Non-Partisan Voters League 
was the most cohesive and the most effective voter 
organization.

Q. And there has never been in Mobile County, as far as 
you know, a comparable white organization as 
effective and as long standing as the Non-Partisan 
Voters League; is that correct?

A. That is correct.
He further testified as follows (Tr. 612):

Q. Your wife got beat by a solid black vote, didn’t she?
A. It wasn’t absolutely solid, she obviously got a number 

of votes in the black community.



13

Q. Wasn’t she defeated by an overwhelming black vote?
A. Oh, yes.
Q. And the Non-Partisan Voters League endorsed Mr. 

Cooper, didn’t they?
A. Yes, I’m certain they did.
Q. And there is no comparable white endorsing group in 

this district, is there?
A. That is correct.

Finally, Senator Edington stated (Tr. 629):
Q. Would you say that the black vote in Mobile County is 

far and wide the most cohesive group vote in Mobile 
County?

A. It has been for the past 10 or 12 years. It is less so now 
than in the past.

Plaintiffs’ witness, State Representative Buskey, states as 
follows (Tr. 735, 6):

Q. Wouldn’t you say that the election endorsement was 
followed by the black community pretty much up until 
the death of John LeFlore?

A. Yes, sir, I would say that is correct.
Q. And he died in December of ’75, didn’t he?
A. Yes, sir. I had it January.
Q. Well, maybe you’re right, January of this year or 

December of ’75?
A. Yes, sir.
Q. And up until that point of time, the election en­

dorsement has been extremely effective, hasn’t it?
A. Up until that time. Well, really, if you will go back two 

years, when John officially entered politics, the 
election endorsement had been effective. I think that 
two years ago when Mr. LeFlore sought the House 
District 99 seat, I am sure his concentration was on 
getting elected more so than trying to get the voters out



14

or seeing that the endorsement of the League was 
adhered to. So, prior to two years ago, I would say the 
Non-Partisan Voters League was very effective in 
getting out the votes and swaying the voters.

It was also undisputed that City Commissioner Joseph 
Langan was elected and re-elected four times to the City 
Commission with vital support of the black voters; that he 
remained in office from 1953 through 1969 (Tr. 764). 
Further, the testimony is clear that whenever Mr. Langan ran 
for office, he was always endorsed by the Non-Partisan 
Voters League, the principal black political organization in 
Mobile County (Tr. 783).

C  MOBILE COUNTRY SCHOOL BOARD 
COM M ISSIONERS ARE EQUALLY RE­
SPONSIVE TO BLACK AND W HITE 
CITIZENS.

1. The undisputed facts of the accessibility of Mobile 
County School Board Commissioners to all citizens.

The Plaintiffs did not establish that black citizens have 
particularized needs separate and distinguishable from those 
of all citizens of the County from the standpoi nt of education 
and the matters within the purview of the Board of School 
Commissioners of Mobile County. Beyond that, however, 
the Plaintiffs produced no proof below that the School Board 
has been or is unresponsive to the interest of any of the 
citizens of Mobile County, black or white.

In an effort to prove unresponsiveness, the Plaintiffs called 
Mrs. Janice McArthur to testify. Mrs. McArthur, president 
of a group composed of both black and white citizens, which 
gratuitously devoted itself to identifying and solving what is



15

conceived to be problems of the school system arising as a 
consequence of the desegregation process, testified con­
cerning four occasions that she and her group had become 
involved in school matters. (Tr. 543, 4). Her testimony 
indicated, in each instance, that they sought to resolve a 
particular problem with a principal of a local school and, 
being unsuccessful in doing so, on each occasion they were 
ultimately able to resolve the problem by discussion with 
Central Office Administrative Personnel of the school 
system. (Tr. 545, 556, 565, 569). Mrs. McArthur also 
indicated that on one occasion she and the members of her 
group attended one of the bi-weekly public meetings of the 
School Board and were unable to address the Board at the 
meeting because they had not taken the necessary steps to 
place their names in line among those appearing that day to 
address the Board. (Tr. 577). She further testified, however, 
that at a subsequent meeting she and her group appeared and 
addressed the Board with no difficulty. (Tr. 580). Other 
testimony established that all meetings of the School Board 
are open to the public and that the only prerequisite to 
addressing the Board at its public meetings is to come to the 
meeting and sign in on a tablet provided to maintain order 
among those who are appearing that day to address the Board 
(Tr. 579, 1174, 1175). Clearly, there is no showing of 
unresponsiveness on the part of the Board in the testimony of 
Mrs. McArthur.

In a further effort to establish unresponsiveness, the 
Plaintiffs produced the testimony of Mr. Cain Kennedy, who 
testified that he had received complaints from non-tenured 
teachers in the school systefn whose contracts of employ­
ment were not renewed. (Tr. 320). Mr. Kennedy was 
instructed by the Court to furnish the Court and Counsel with 
the list of those people from whom he had received such



16

complaints, but he failed to do so. The testimony of Deputy 
Superintendent J. Larry Newton established that over the 
past three years, encompassing the period of time that Mr. 
Kennedy has been in Mobile, there have been ten non- 
tenured teachers whose contracts have not been renewed; of 
the ten, five are black and five are white (Tr. 1 ISO, 1181).

Mr. Kennedy also indicated that a black citizen had 
complained to him of discipline procedures at Murphy High 
School but he could offer no specifics (Tr. 321, 322). In 
response, Assistant Superintendent Clardy testified as to the 
specifics of the formulation and application of the discipline 
policy, indicating coincidently that the policy was formu­
lated in consultation with the Plaintiffs’ attorney and has 
been acclaimed nationwide as one of the ten discipline 
policies selected as model policies in that area of school 
administration (Tr. 1197-1199). Mr. Clardy also testified as 
to the even-handed manner of the application of the disci­
pline policy and confirmed that over the past five years all 
matters of disciplinary suspension have been satisfactorily 
resolved, either at the local school level, or at the ad­
ministrative appeal level provided by the policies; and that 
no suspension matter has gone to the Board for con­
sideration, as also provided by the policy, during the entire 
period of existence of the policy (Tr. 1206,1207). Certainly 
there is no proof of unresponsiveness in this testimony from 
Mr. Kennedy.

In a further effort to prove unresponsiveness, the Plaintiffs 
also offered the testimony of Mr. Gary Cooper. Mr. Cooper 
testified that the grass at Dunbar School had not been cut on 
the day that he had come to Court and he also testified that he 
was concerned for black teacher applicants who could not 
gain employment in the Mobile County School System 
(Tr. 350,351). Assistant Superintendent Benson testified as



17

to the even-handed application to all schools of maintenance 
and upkeep procedures under his supervision, and of im­
mediate problems in cutting the grass at all the schools in the 
system due to the prevailing rainy weather at the time 
(Tr. 1258, 1259, 1260). Upon the matter of teacher em­
ployment, Deputy Superintendent Newton and Lemuel 
Taylor, who is an Assistant Superintendent in charge of the 
Division of Personnel with responsibility for the hiring and 
firing of all teachers in the system (and who is, himself, a 
black) testified that the system had more than 2,000 
applicants that year for approximately 100 teaching va­
cancies; and that vacancies are filled in a manner calculated 
to maintain an overall 60-40 white-black ratio of teachers in 
the system as required by the prior Federal Court Order 
(Tr. 1182, 1183).2 The Federal Court Order had required 
the school system to determine the ratio of white and black 
teachers in the system as a whole upon a given time and then 
to assign teachers throughout the several schools of the 
system so that each school would then have the same white- 
black ratio of teachers.2 3 Certainly there is no proof of 
unresponsiveness in Mr. Cooper’s testimony.

The evidence was uncontradicted that the Mobile County 
School System presently provides equal education services 
to all communities within the county. The testimony of the 
Defendants’ witness, Dr. Henry H. Pope, is uncontradicted. 
(Tr. 1219-1240). Clearly, his testimony conclusively 
showed that educational services are equally provided to 
minority group members in Mobile County.

235.4 percent of Mobile’s population is black. 32.5 percent of the 
County’s population is non-white. R. 733.

3428 F. Supp. at 1130, 1131.



18

The evidence is uncontradicted that the Mobile County 
School Board does not discriminate against minority group 
members within the Mobile County School System. The 
Defendants’ witness, Mr. Larry Newton, testified that blacks 
are not discriminated against and that the distribution of 
educational jobs, appointments of blacks to various faculty 
and administrative positions is carried out in a non- 
discriminatory manner (Tr. 1180-1190). The District 
Court, however, made reference to earlier discrimination 
and desegregation cases involving the Mobile County 
School Board as constituting “devastating evidence of the 
complete unresponsiveness and resistance on the part of the 
Board to the particularized needs and aspirations of the black 
community”. As made clear in Blacks United fo r  Lasting 
Leadership, Inc. v. City o f Shreveport, Supra, the correct 
issue to be decided is “whether the past denial has present 
invidious effect.”

D. MOBILE COUNTY’S POLICY IN FAVOR 
OF ITS AT-LARGE ELECTION OF 
SCHOOL BOARD COM M ISSIONERS IS 
NOT AT ALL “ TENUOUS”.

A thorough examination of the legislative history of the 
Mobile County Public School System and the existence of 
public schools throughout the state in general will show that 
there now is and historically has been a decided preference 
for school system governance by school boards elected on a 
county-wide at-large multi-member district basis. The legis­
lative history of the Mobile County School System Shows 
that it was created in 1826 and that at that time provision was 
made for the election of all the members of the Board on a 
county-wide at-large basis. This method of governance of the 
school system has endured since the creation of the school



19

system in 1826. As to the remainder of the State, for which 
provision has been made for public school systems separate 
and apart from Mobile County, there has also been a clear 
preference for county school systems to be governed by 
school boards elected by the county in at-large elections. 
This preference for at-large elections originated with the 
establishment of the first public school system in the state as 
a whole in 1854 (Acts of Alabama, 1853-54, p.8), and it has 
carried forward to the law of Alabama since that time. It 
appeared in the Alabama School Code of 1927, and now 
appears in the Code of Alabama, § 16-8-1 (1975), where it 
is provided that County Boards of Education shall be com­
posed of five members who shall be elected by the qualified 
electors of the county.

It is clear after looking at the record below and the District 
Court’s opinion that the Plaintiffs have failed to carry the 
burden of proof in establishing a “ tenuous state policy” . The 
conclusory finding that a lack of state policy must be 
considered as a neutral factor is in error and must be 
considered another example of the District Court’s improper 
analysis of the Zimmer factors.

E. RACIALLY DISCRIM INATORY PUR­
POSE IS AN ESSENTIAL ELEM ENT OF 
AN EQUAL PROTECTION VIOLATION 
W HICH THE PLAINTIFFS-APPELLEES 
FAILED TO PROVE.

The claims which the Plaintiffs-Appellees presented to the 
District Court were actions for relief under the equal 
protection clause of the Fourteenth Amendment. Although 
at-large electoral schemes perhaps have the potential of 
merging minority interests, they cannot be considered



20

unconstitutional per se. Whitcomb v. Chavis, Supra, 402 
U.S. at 159-60. The fact that at-large elections “diminish to 
some extent” black voting power does not in itself constitute 
an unconstitutional denial of effective participation or access 
to the political process. McGill v. Gadsden County Com­
mission, Supra, 5 35 F.2d at 281: “Where racial intent is not 
shown, blacks are not suffering because they are black but 
simply because they, like many other interest groups, 
constitute a minority of voters.” Carpenenti, “ Legislative 
Apportionment; Multi-Member Districts and Fair Repre­
sentation” , 120 U. of Pa. Law Review 666, 698 (1972).

Simply because it may be more difficult for blacks to elect 
black representatives in an at-large electoral system does not 
mean that such a system is unconstitutional. “ Under the 
Fourteenth Amendment the question is whether the [elec­
toral] plan represents purposeful discrimination.. . ” United 
Jewish Organizations o f  Williamsburg, Inc. v. Carey, 430 
U.S. 144. The case’of Washington v. Davis, 426 U.S. 229, 
the landmark case in this area, “made it clear that official 
action will not be held unconstitutional solely because it 
results in a racially disproportionment irhpact. . . proof of 
racially discriminatory intent or purpose is required to show 
a violation of the Equal Protection Clause” . Village o f  
Arlington Heights v. Metropolitan Housing Development, 
Inc., 429 U.S. 252. Thus, this Honorable Court’s decision 
clearly shows that the necessary sensitivity to racially 
invidious purpose is an essential element involved in any 
equal protection analysis. Since the District Court made no 
findings of fact that the at-large electoral scheme of electing 
Mobile County School Board Commissioners was created 
with a discriminatory purpose or intent, the District Court’s 
Order is legally insufficient.



21

THE QUESTIONS ARE SUBSTANTIAL

A. ALL THE QUESTIONS ARE SUBSTAN­
TIAL AS THE CO U RTS O R D ER  AF­
FECTS THOUSANDS O F MOBILIANS 
AND ABROGATES AN ELECTORAL 
SCHEM E IN USE FOR ALMOST 60 
YEARS.

The Appellants submit that all the aforesaid discussions 
involve questions substantial in nature. Any time an elec­
toral structure of an entire county is changed, it is obvious 
that thousands of people will be affected. An electoral 
scheme almost 60 years old has been abrogated. The 
Appellants, however, would, at this point, refer this 
Honorable Court to the following specific substantial 
questions which they feel warrant separate discussion.

B. THE ORDERS APPEALED FROM  ARE 
JU D ICIA L LEGISLATION VIOLATING 
THE PRINCIPLES OF FEDERALISM  
AND THE TENTH AM ENDM ENT OF 
THE CONSTITUTION OF THE UNITED 
STATES.

There is an overriding Constitutional principle under our 
Federal system of Government with which these legislative 
orders directly conflict and which requires that such orders 
be set aside under the Constitution of the United States.

The Power under Federalism and the Tenth Amendment 
is to reserve to the “ States” the powers, forms and integral 
forms of local government.

The case of Whitcomb v. Chavis, Supra, 403 U.S. at 156-



22

160, makes it quite clear that the Federal Judiciary does not 
sit as a body of political scientists weighing the ethicacy of 
bearing theories of government or political representation. 
As the Fifth Circuit itself has stated in Hendrix v. Joseph, 
Supra;

“ In each of these dilution cases the Federal Court is 
being asked to interject itself into a state-created 
electoral system to replace it with a radically different 
scheme because of supposed Constitutional infirmities. 
Before engaging in such aggressive interference with 
what has traditionally been regarded as state function, 
thorough and detailed findings on each issue that the 
Courts have thus far found to be relevant must be made.
To allow conclusory findings that ‘the government is 
unresponsive’, and that ‘no black has ever been elected’ 
to substitute for such detail would alter the balance that 
our Constitutional system of Federalism is designed to 
protect”.
The same Court stated in David v. Garrison that “ the 

Courts must be careful to upset the legislative plan adopted 
by the people only when the Constitution clearly dictates that 
such plan is unlawful” . 553 F.2d at 926.

C. THE DISTRICT CO U RTS ORDER AS 
A FFIRM ED  BY THE COURT O F AP­
PEALS EFFECTIVELY DISENFRAN­
CHISED ONE SCHOOL BOARD COM­
M ISSIONER’S RIGH T TO VOTE AND 
RIGH T TO RUN FOR REELECTION AS 
AN INCUMBENT TO THE SCHOOL 
BOARD IN VIOLATION OF HIS CON­
STITUTIONAL RIGHTS.

The District Court’s ruling effectively disenfranchises the 
right to vote of one of the present board members from 1978



23

to 1980, by modifying his term of office. Under the ordered 
single-member district plan which requires residence in the 
district which the commissioner represents the present Board 
members now reside in the following districts: Com­
missioners Bosarge, Alexander and Berger in District Two; 
Commissioner Sessions in District Four; Commissioner 
Drago in District Five. (R  774).

Since no one resides in District Three, which has a 
majority black population, the Court stated that said district 
was entitled to a commissioner in 1978. Commissioner 
Sessions resides in District Four which has a majority black 
population and this district also is entitled to a place in 1978. 
Since Sessions’ term expires in 1978, there is automatically 
a vacancy in this district. In order for District Three to have a 
place, one other Board member’s term must either be 
shortened or modified. The District Court decreed that two 
members with the least remaining time of service, Alexander 
and Drago, would be the logical choices. (R  774). Rather 
than shortening a commissioner’s term, the District Court 
ordered that the Board, prior to the general election in 1978, 
elect a chairman, either Alexander or Drago, to occupy such 
a position until 1980. (R  774). This chairman would serve 
without the right to vote, a fundamental right of all of the 
present Board members. Code of Alabama, Section 16-8-4 
(1975). In addition to cutting off the chairman’s right to vote, 
the District Court’s opinion has other serious implications. 
Although the District Court stated that no incumbent 
member of the Board shall be deprived of his unexpired term 
of office because of such re-districting, the District Court’s 
ruling clearly cuts off Commissioner’s Alexander’s right to 
run again as an incumbent in 1980. (R  777). In order to have 
new commissioners elected from Districts Three and Four in 
1978, the District Court’s ruling created a Board consisting



24

of six members. It was ordered by the District Court that 
there shall be elected in November of 1978 school commis­
sioners for Districts Three and Four; there shall be elected 
in November, 1980, one commissioner from District Five; 
and there shall be elected in November, 1982, com­
missioners from Districts One and Two. (R 790). Commis­
sioners Bosarge, Berger and Alexander presently reside in 
District Two; Commissioner Drago resides in District Five. 
Commissioner Alexander’s term of office expires in 1980. 
Under the present Court Order, Commissioner Alexander 
has been disenfranchised from his right to run for office in 
1980. In order for him to run again for election, according to 
the District Couf s ruling, he would have to move into and 
reside in District Five. Since each school commissioner is 
required to have been a resident of the district which the 
person represents for not less than twelve months im­
mediately preceding that person’s election and shall reside in 
the district during the person’s term of office, Alexander 
would have to leave his present position with the School 
Board in order to run for re-election in 1980.

Thus, the District Court Order as it now stands prevents 
Commissioner Alexander from running for re-election to the 
School Board at Mobile County when his term expires in 
1980. (R. 790).

As stated in the following case:
The right to seek and hold public office and to engage in 
political activity is a property right which is protected by 
the Federal Constitution. McKinney v. Kaminsky, 340
F. Supp. 289 (M.D. Ala. 1972). '

Commissioner Alexander will lose this valuable property 
right to hold office if the District Court’s decision is allowed 
to stand. In the case of Gordon v. Leatherman, 450 F.2d 
562 (5th Cir. 1971), the Court held:



25

Ail elected official has a property right in his office 
which cannot be taken away except by due process of 
law.
The Court in Cowan v. City o f  Aspen, 181 Colo. 343,509 

P.2d. 1269 (1973) stated:
The right to hold public office by either appointment or 
election is one of the valuable and fundamental rights of 
citizenship.
Shortening the term of this Commissioner, by Court Order 

is “fundamentally unfair”, “ invidiously discriminatory” and 
“violative of due process of law” .



26

CONCLUSION

Because of the substantial issues set forth in this 
“ Jurisdictional Statement” involving new and novel con­
stitutional and federal law questions, this Honorable Court 
should note probable jurisdiction.

Because the District Court has ordered the newly imposed 
single-member electoral scheme to be in effect for the 
primary elections to be held on September 5, 1978, the 
Appellants urgently and respectfully request that this Court 
note jurisdiction of this Appeal immediately.

Respectfully submitted,

ROBERT C. CAMPBELL, III 
3763 Professional parkway 
Mobile, Alabama 36609

Counsel for Appellants, Board o f 
School Commissioners fo r the 
Public Schools o f Mobile County, 
Alabama

O f Counsel:
SINTZ, PIKE, CAMPBELL 

& DUKE
3763 Professional Parkway 
Mobile, Alabama 36609



la

APPENDIX “A”

IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-1583

LEILA G. BROWN, et a!.,
Plaintiffs-Appellees, 

Cross-Appellants,
-versus-

JOHN L. MOORE, et al.,
Defendants,

ROBERT R. WILLIAMS, et al.,
Defendants-Appellants, 

Cross-Appellees.

The Board of School Commissioners for the Public 
Schools of Mobile County, Alabama appeals from the 
district court’s determination that the election of 
school commissioners on an at-large basis unconstitu­
tionally dilutes the votes of black citizens of Mobile 
County. Appellants m aintain that the court’s order 
creating five single-member districts should be 
reversed. Plaintiffs cross appeal from the district 
court’s decision to stagger the election of board 
members rather than order new elections for all five 
districts in 1978.

We have reviewed the district court’s findings and 
conclusions. Judge Pittm an has applied the proper



2a

standards for evaluating plaintiffs contention that the 
election of school commissioners on an at-large basis 
dilutes the votes of black citizens and has carefully and 
thoroughly analyzed the record in light of these 
standards. On the basis of our own careful study of the 
record, we are convinced that the district court’s 
findings are not clearly erroneous and that these 
findings amply support the conclusion that Mobile 
County’s at-large eleciton system unconstitutionally 
depreciates the value of the black vote. See Bolden v. 
City o f  Mobile, 571 F.2d 238 (5th Cir. 1978). We 
further conclude that the order framed by the court 
below was well within the permissable scope of its 
equitable discretion. Accordingly, the judgm ent below 
is in all respects affirmed. The mandate shall issue 
forthwith.
A FFIR M ED .



lb

APPENDIX “B”

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

SOUTHERN DIVISION

LEILA G. BROWN, MARY LOUISE )
GRIFFIN, COOLEY, JQANNIE ALLEN)
DUMAS, ELMER JOE DAILY )
EDWARDS, ROSIE LEE HARRIS, )
HAZEL C. HILL, JEFF KIMBLE, )
FRANCES J. KNIGHT, JOHN W. )
LEGGETT, JANICE M. McAUTHOR, )

)
Plaintiffs, )

)
V. ) CIVIL

) ACTION
JOHN L. MOORE, individually and in ) No. 75-298-P 
his official capacity as Probate Judge of )
Mobile County; JOHN E. MANDEVILLE,) 
individually and in his official capacity as )
Court Clerk of Mobile County, THOMAS )
J. PURVIS, individually and in his official ) 
capacity as Sheriff of Mobile County; )
HOWARD E. YEAGER, COY SMITH, )
G. BAY HAAS, individually and in their ) 
official capacity as Mobile County )
Commissioners; ROBERT R. WILLIAMS, )
DAN C. ALEXANDER, JR., NORMAN J.)
BERGER, RUTH F. DRAGO, HOMER L.)
SESSIONS, INDIVIDUALLY and in their) 
official capacity as School Commissioners )
of Mobile County, Alabama, )

)
Defendants. )



2b

OPINION AND O RD ER AS TO THE 
BOARD OF SCHOOL CO M M ISSION ERS 

OF MOBILE COUNTY, ET AL.

This is an action brought by Leila G. Brown, and 
other black plaintiffs representing all Mobile County, 
Alabama, blacks as a class, claiming the present at- 
large system of electing county commissioners and 
school commissioners abridges the rights of the 
County’s black citizens under the First, Thirteenth, 
Fourteenth, and Fifteenth Amendment to the 
Constitution of the United States; under the Civil 
Rights Act of 1871,42 U.S.C. Sec. 1983; and under the 
Voting Rights Act of 1965, as amended, 42 U.S.C. Sec. 
1973, et seq.

The defendants are the Board of School Commis­
sioners of Mobile County (Board or school commis­
sioners), Robert R. Williams, Dan C. Alexander, Jr., 
Norman J. Berger, Ruth F. Drago, and Homer L. 
Sessions, the Mobile County Commissioners, Howard 
E. Yeager, Coy Smith, G. Bay Haas, and the Probate 
Judge, John L. Moore, the Court Clerk of Mobile 
County, John E. Mandeville, and the Sheriff of Mobile 
County, Thomas J. Purvis, and Mobile County, who 
are sued individually and in their official capacities.

For purposes of clarity, a separate opinion and order 
will be rendered in this case against the school 
commissioners, et al., and the Mobile County 
Commissioners, et a l.1

■Many of the facts and most of the iaw in the Board of School 
Commissioners and the County Commissioners are as applicable to one 
defendant as to the other. There are some facts and points of law which 
are different, particularly with reference to the law creating the different 
offices and the unresponsiveness of each. Because of this, separate

(continued)



5b

alleging due process and equal protection violations, 
held that in these constitutional actions, in order to 
obtain relief, proof of intent ox purpose  to discriminate 
by the defendants must be shown. Defendants state, 
therefore, that since the statute under which the Board 
members are elected was passed when essentially all 
blacks were disenfranchised, there could be no intent or 
purpose to discriminate at the time the statue or the 
Constitution was adopted. Alternatively, however, 
defendants contend that if Washington does not 
preclude consideration of the dilution factors of White 
and Zimmer, they should still prevail because plaintiffs 
have not sustained their burden of proof under these 
and subsequent cases.

Plaintiffs’ reply is to the effect that Washington did 
not establish any new constitutional purpose principle 
and that White and Zimmer still are applicable. If, 
however, this court finds Washington to require a 
showing of racial m otivation at the time of passage of 
the 1919 or later statutes, plaintiffs contend they should 
still prevail, claiming the at-large election system was 
designed and is utilized with the motive or purpose of 
diluting the black vote. Plaintiffs claim that the 
discriminatory intent can be shown under the 
traditional tort standard.

The defendants further contend that the plaintiffs 
are not entitled to relief because they do not come 
before the court with clean hands because the plaintiffs 
thwarted the efforts of the Board to procure passage by 
the State Legislature of a constitutionally sound statute 
providing for single-member districts.



6b

FIN DING S OF FACT

Mobile County, Alabama, is located in the 
southwestern part of the State bordered on the south 
by the Gulf of Mexico, on the west by the State of 
Mississippi, and a large portion of the county to the 
east by Mobile Bay. In 1970, the county’s population 
was 317,308 with approxim ately 32.5% of the residents 
non-white. (Defendants’ Exhibit No. 6, p. 1)

A 1976 estimate placed the county’s population at 
337,200 with approxim ately 32.5% of the population 
non-white. (Defendants’ Exhibit No. 6, p. 1.) 
Practically all county non-whites are black. The 1970 
population of the City of Mobile was 190,026 with 
approxim ately 35.4% of the residents black.3

The 1970 voter age population, 18 years of age and 
older, was 64.8% for whites and 55.2% for blacks. 
(Defendants’ Exhibit No. 6, p. 18.) An estimate of the 
black vote as percentage of the total vote in the 1976 
primary elections was 24.4% black of the total vote 
cast. (Defendants’ Exhibit No. 6, p. 24.)

Almost two-thirds of the county’s population resides 
in the City of Mobile and a large portion of the other 
blacks in the county reside in the adjoining 
municipality of Prichard. Of the 103,238 non-whites in 
the county, 88,890 live in Mobile and Prichard. Only 
12,718 non-whites live outside the incorporated 
municipalities. (Defendants’ Exhibit 6, p. 5.) It is 
obvious that the evidence relating to the City of Mobile

3 The court takes judicial knowledge of its records. A companion case, 
Bolden, et a!, v. City o f Mobile, Civil Action No. 75-297-P,- under 
consideration by the court at the same time this case was under 
consideration, Defendants’ Exhibit No. 12, cited these figures accord­
ing to the 1970 Federal Census.



9b

LACK OF OPENNESS IN THE SLATING 
PRO CESS OR CANDIDATE SELECTION 

PROCESS TO BLACKS.

Mobile County blacks were subjected to massive 
official and private racial discrimination until the 
Voting Rights Act of 1965.6 It has only been since that 
time that significant diminution of these discrim­
inatory practice has been made. The overt forms of 
many of the rights now exercised by all Mobile County 
citizens were secured through national legislation, 
federal court orders, and a moral commitment of many 
dedicated white and black citizens plus the power 
generated by the restoration of the right to vote which 
substantially increased the voting power of the blacks. 
Public facilities are open to all persons. The pervasive 
effects of past discrimination still substantially affects 
political black participation.

There are no formal prohibitions against blacks 
seeking office in Mobile County.7 Since the Voting 
Rights Act of 1965, blacks register and vote without 
hindrance. The election of the school commissioners is 
partisan and black and whites participate in both 
parties. However, the court has a duty to look deeper 
rather than rely on surface appearance to determine if 
there is true openness in the process and determine 
whether the processes “leading to nom ination and

6In the companion case, Bolden v. City o f Mobile, the evidence 
was uncontradicted that in 1946 there were only approximately 
255 black registered voters out of more than 19,000 registered 
voters.

7The qualifying fee for candidates for the city commission was found 
unconstitutional in Thomas v. Mims, 317 F. Supp. 179 (S.D. Ala. 
1970). See also U.S. v. State o f Ala., 252 F. Supp. 95 (M.D. Ala. 1966) 
(three judge district court panel) (poll tax declared unconstitutional).



election [are] . . . equally open to participation by the 
group in question. . . . ” White, 412 U.S. a t 766. One 
indication that local political processes are not equally 
open is the fact that no black person has ever been 
elected to the at-large school board. This is true 
although the black population level is almost one- 
third.

In the 1960’s and 1970’s, there has been general 
polarization in the white and black voting. The 
polarization has occurred with white voting for white 
and black for black if a white is opposed to a black, or if 
the race is between two white candidates and one 
candidate is identified with a favorable vote in the 
black wards, or identified with sponsoring particular­
ized black needs. When this occurs, a white backlash 
occurs which usually results in the defeat of the black 
candidate or the white candidate identified with the 
blacks.

Since 1962, four black candidates have sought 
election in the at-large county school board election. 
Dr. Goode in 1962, Dr. Russell in 1966, Ms. Jacobs in 
1970, and Ms. Gill in 1974. All of these black 
candidates were well educated and highly respected 
members of the black community. They all received 
good support from the black voters and virtually no 
support from whites. They all lost to white opponents 
in run-off elections.

Three black candidates entered the race of the 
Mobile City Commission in 1973. Ollie Lee Taylor, 
Alfonso Smith, and Lula Albert. They received modest 
support from the black community and virtually no 
support from the white community. They were young, 
inexperienced, and mounted extremely limited cam­
paigns.



l i b

Two black candidates sought election to the 
Alabama State Legislature in an at-large election in 
1969. They were Clarence M ontgomery and T.C. Bell. 
Both were well supported from the black community 
and both lost to white opponents.

Following a three-judge federal court order in 19728 
in which single-member districts were established and 
the house and senate seats reapportioned, one 
senatorial district in Mobile County had an almost 
equal division between the black and white population. 
A black and white were in the run-off. The white won 
by 300 votes. There were no overt acts of racism. Both 
candidates testified and asserted each appealed to both 
races. It is interesting to note that the white winner 
published a simulated newspaper with both candidate’s 
photographs appearing in the front page, one under the 
other, one white, one black.

One city commissioner, Joseph N. Langan, who 
served from 1953 to 1969, had been elected and 
reelected with black support until the 1965 Voting 
Rights Act enfranchised large numbers of blacks. His 
reelection campaign in 1969 foundered mainly because 
of the fact of the backlash from the black support and 
his identifidation with attem pting to meet the 
particularized needs of the black people of the city. He 
was again defeated in an at-large county commission 
race in 1972. Again the backlash because of the black 
support substantially contributed to his defeat.

In 1969, a black got in a run-off against a white in an 
at-large legislature race. There was an agreement 
between various white prospective candidates not to 
run or place an opponent against the white in the run­

8Sims v. Amos, 336 F. Supp. 924 (M.D. Ala. 1972).



12b

off so as not to splinter the white vote. The white won 
and the black lost.

Particularly all active candidates for public office 
testified it is highly unlikely that anytime in the 
foreseeable future, under the at-large system, that a 
black can be elected against a white. Most of them 
agreed that racial polarization was the basic reason. 
The plaintiffs introduced statistical analyses known as 
“regression analysis” which supported this view. 
Regression analysis is a professionally accepted 
method of analyzing data to determine the extent of 
correlation between dependent and independent 
variables. In plaintiffs’ analyses, the dependent 
variable was the vote received by the candidates 
studied. Race and income were the independent 
variables whose influence on the vote received was 
measured by the regression. There is little doubt that 
race has a strong correlation with the vote received by a 
candidate. These analyses covered every city commis­
sion race in 1965, 1969, and 1973, both primary and 
general election of county commission in 1968 and 
1972, and selected school board races in 1962, 1966, 
1970, 1972, and 1974. They also covered referendums 
held to change the form of city government in 1963 and 
1973 and a countywide legislative race in 1969. The 
votes for and against white candidates such as Joe 
Langan in an at-large city commission race, and Gerre 
Koffler, at-large county school board commission, 
who were openly associated with black community 
interests, showed some of the highest racial polariza­
tion of any elections.

Since the 1972 creation of single-member districts, 
three blacks have been elected. Their districts are more



13b

heavily populated with blacks than whites.
Prichard, an adjoining municipality to Mobile, 

which in recent years has obtained a black majority 
population, elected the first black mayor and first black 
councilman in 1972.

Black candidates at this time can only have a 
reasonable chance of being elected where they have a 
majority or a near majority. There is no reasonable 
expectation that a black candidate could be elected in a 
citywide election race because of race polarization. The 
court concludes that an at-large system is an effective 
barrier to blacks seeking public life. This fact is shown 
by the removal of such a barrier, i.e., the 
disestablishment of the multi-member at-large elec­
tions for the state legislature. New single member 
districts were created with racial compositions that 
offer blacks a chance of being elected, and they are 
being elected.

The court finds that the structure of the at-large 
election of school commissioners combined with 
strong racial polarization of the county’s electorate 
continues to effectively discourage qualified black 
citizens from seeking office or being elected thereby 
denying blacks equal access to the slating or candidate 
selection process.

UNRESPONSIVENESS OF THE ELECTED 
SCHOOL COM M ISSION ERS OF MOBILE 

COUNTY TO THE BLACK M INORITY

The at-large elected county board members have not 
been responsive to the minorities’ needs, who



14b

constitute 32.5% of the total population.
The Mobile County School System maintained a 

dual school system which prolonged segregation until 
sometime after Davis v. Board o f  School Commis­
sioners o f  Mobile County, Civil Action No. 3003-63-H, 
was commenced in this court in 1963. The lengthy 
record in Davis, supra, is devastating evidence of the 
complete unresponsiveness and resistance on the part 
of the Board to the particularized needs and aspirations 
of the black community.

This record (the docket sheet itself comprises some 
27 pages. See Plaintiffs’ Exhibit No. 99.) is replete with 
dilatory actions by the Board attem pting to forestall 
the implementation of a desegregated school system. 
Another judge of this court was put in a position of 
having to compel the school Board to desegregate the 
school system against the Board’s adam ant refusal to 
respond voluntarily to black community interests and 
the prevailing law of the land. The record shows that on 
numerous occasions the court, faced with the complete 
failure of the Board to cooperate, had the unpleasant 
task of forcing the Board to carry out its lawful 
directives.

The Board usually acted only in response to 
numerous restraining and injunctive orders by the 
court. This occurred over a period of time covering 
more than a decade of litigation. The restraining orders 
were all of the same import, to wit, that the School 
Board follow the law as required by the Constitution.

“The defendant, Board of School Commissioners 
of Mobile County and the other individual 
defendants . . . , be and they are hereby restrained 
and enjoined fro m  requiring and permitting



15b

segregation o f  the races in any school under their 
supervision from and after such time as may be 
necessary to make arrangements for admission of 
children to such school on a racially non-discrim- 
inatory basis with all deliberate speed, as required 
by the Supreme Court in Brown v. Board o f  
Education o f  Topeka, 1954, 349 I.S. 294, 75 S.Ct. 
753, 99 L.Ed. 1083.” (Emphasis added.)9
“It is O RD ERED , A D JU D G ED  and DECREED  
that the defendants, their agents, officers, 
employees and successors and all those in active 
concert and participation with them, be and they 
are permanently enjoined fro m  discriminating on 
the basis of race or color in the operation of the 
school system. *** [Tjhey shall take affirmative 
action to disestablish all school segregation and to 
eliminate the effects of the dual school system.” 
(Emphasis added.)10
The utter frustration of the court over the repeated 

failure of the School Board to make a good faith effort 
to carry out its duties as to all of the students in the 
system was well articulated in an order of August 1, 
1969 (M.E. No. 25,826), wherein the court stated:

“With eight years o f  litigation entailing countless 
days and weeks of hearings in court, it has been 
clearly established that the Mobile County School 
System must forthwith be operated in accordance 
with the law of the land. W hat this school system 
needs is to educate children legally, and not engage 
in protracted litigation. After all, the children are

9Order of July 11, 1963, M.E. No. 15,289.
,0Order of April 7, M.E. No. 25,342. See also:

1. M.E. No. 15,555, dated 9/9/63
2. M.E. No. 25,274, dated 3/27/69
3. M.E. No. 26,553, dated 1/28/70
4. M.E. No. 27,705, dated 9/14/70



the ones in whom we should be most interested.” 
(Emphasis added.)
On March 16, 1970, this same judge, faced with the 

failure of the Board to carry out certain orders of this 
court entered pursuant to directives of the Fifth Circuit 
following rulings of the Supreme Court of the United 
States, entered an order which stated in pertinent part:

“The School Board is required to follow the order 
of this court of January 31, 1970, as amended and 
if the same is not followed  within three days from 
this date, a, fin e  o f  $1,000per day is hereby assessed 
for each such day, against each member of the 
Board of School Commissioners.”11 (Emphasis 
added.)
The Fifth Circuit has, in its numerous orders and 

opinions,12 noted with displeasure, the total lack of

11 M,E. No. 26,771, dated 3/16/70.
12 I. Davis v. Bd. o f School Comm, o f Mobile County, 318 F 2d

63 (3963)
II. Davis, 322 F.2d 356 (3963), cert. den. 375 U.S. 894, 84 S. Ct. 

170, 11 L.Ed.2d 123; reh. den. 376 U.S. 928, 84 S. Ct. 656 
11 L.Ed.2d 628.

III. Davis, 333 F.2d 53 (1964), cert. den. 379 U.S, 844, 85 S Ct 
85, 13 L.Ed.2d 49.

IV. Davis, 364 F.2d 896 (1966)
V. Davis, 393 F,2d 690 (1968)

VI. Davis, 414 F.2d 609 (1969)
VII. Singleton v. Jackson Municipal Separate School Dist.

439 F.2d 1211 (1969)
VIII. Davis, 422 F.2d 1139 (1970)

IX. Davis, 430 F.2d 883 (1970); on remand 430 F.2d 889; aff. 
in part, rev. in part, 402 U.S. 33, 91 S. Ct. 1289, 28 L.Ed.2d 
577

X. Davis, 483 F.2d 1017 (1973)
XI. National Education Ass. v. Board o f School Comm, of 

Mobile Countv, 483 F.2d 1022 (1973)
XII. Davis, 496 F.2d 1181 (1974)

XIII. Davis, 517 F.2d 1044 (1975)
XIV. Davis, 526 F.2d 865 (1976)



17b

cooperation exhibited by the Board, In Davis I I  (see 
n. 12, supra), it was stated:

“Although it seems to be acknowledged on all 
hands that a racially segregated system  is still 
maintained, the Defendants’ legal position*** is 
that Plaintiffs have not set forth a claim entitling 
them to relief. So far as this record shows, the 
Defendant school authorities have not to this day 
ever acknowledged  that (a) the present system is 
constitutionally invalid or (b) that there is any 
obligation or their part to make any changes at any 
time.” 322 F.2d at p. 358. (Emphasis added.)
In Davis IV  (See n. 12, supra), the court said:
“. . . [I]t must also be borne in mind that this 
school board ignored fo r  nine years the 
requirement clearly stated in Brown that the 
School authorities have the primary responsibility 
for solving this constitutional problem .” 364 F.2d 
at 898, n. 1. (Emphasis added.)
In Davis V (see n. 12, supra), the Fifth Circuit stated, 

through Judge Thornberry:

“In the last Mobile case, Judge Tuttle said there 
must ‘be an end to the present policy of hiring and 
assigning teachers according to race by the time 
the last of the schools are fully desegregated for the 
school year 1967-68.’ 364 F.2d at 904.. . . [DJespite 
the court’s decree, it seems apparent that the policy 
of hiring and assigning teachers according to race 
still exists.*** The reason for the lack of progress 
is that the board has not yet shouldered the 
burden.” 393 F.2d at 695 (Emphasis added.)
Further evidence is contained in Davis IX  (see n. 12, 

supra), where, on page 886, it is stated:

“The Mobile County School System has almost 
totally fa iled  to comply with the faculty ratio



18b

requirement although ordered to do so by the 
district court on August 1, 1969.” (Emphasis 
added.)
Further, it was pointed out in note 4 thereof, in 

discussing desegregation plans:

. . but the defendants, the only parties in 
possession of current and accurate information, 
have offered no help. This lack of cooperation and 
generally unsatisfactory condition created by 
defendants, should be terminated at once by the 
district court.” 430 F.2d at p. 888. (Emphasis 
added.)
There are, to date, many unresolved controversies 

remaining in Davis. There is no doubt that with a more 
cooperative School Board making a more responsive 
effort to conform to the law, the process of 
implementing a constitutionally acceptable unitary 
school system would have been accomplished faster 
and without the divisiveness, and lengthy and 
expensive litigation already experienced.

Today, thirteen years after the filing of the Davis 
case, the Board is operating under “A Comprehensive 
Plan for a Unitary School System” order of this court 
issued pursuant to a mandate of the Supreme Court of 
the United States and of the Fifth Circuit Court of 
Appeals. Under these circumstances, the defendants 
can justly claim little credit for this alleged 
responsiveness today to black needs.



19b

TH ERE IS NO TENUOUS STATE POLICY 
SHOW ING A PR EFER EN C E FO R 

AT-LARGE D ISTRICTS.

There is no clear cut S ta te  policy either for or against 
multi-member districting or at-large elections in the 
State of Alabama, considered as a whole. The lack of 
State policy therefore must be considered as a neutral 
factor.

in considering the State policy with specific 
reference to Mobile, the Mobile County School System 
was established in 1826, the first provision for a 
“public” school system in the State.13 The commis­
sioners were to be elected at-large. In 1854, the first 
general public school system for the State of Alabama 
was enacted.14 Section 2 of Article VI of that Act 
recognized and maintained the Mobile County School 
System separate and apart from the school system for 
the State. This was incorporated in the Constitution of 
1875 and the Constitution of 1901, Sec. 270 of Article 
XIV. The at-large election of the Mobile County 
School Commissioners has continued to the present 
time. The manifest policy of Mobile County has been 
to have at-large or multi-member districting.

PAST RACIAL D ISCRIM IN A TIO N .

Prior to the Voting Rights Act of 1965, there was 
effective discrimination which precluded effective

13 Acts of Alabama, 1825-26, p. 35. This Act provided for not less than 
thirteen nor more than twenty-five commissioners.

14Acts of Alabama, 1853-54, p. 8.



20b

participation of blacks in the elective system in the 
State, including Mobile County,

One of the primary purposes of the 1901 
Constitutional Convention of the State of Alabama 
was to disenfranchise the blacks. The Convention was 
singularly successful in this objective. The history of 
discrimination against blacks’ participation, such as 
the cumulative poll tax, the restrictions and 
impediments to blacks registering to vote, is well 
established.

Local discrimination in the city and the county has 
been established in connection with the lawsuits 
concerning racial discrimination arising in this court, 
to wit, Allen v. City o f  Mobile, 331 F. Supp. 1134, (S /D  
Ala. 1971, affd . 466 F.2d 122 (5th Cir. 1972), cert. den. 
412 U.S. 909 (1973); Anderson  v. Mobile County 
Commission, Civil Action No. 7388-72-H (S /D  Ala. 
1973); Sawyer v. City o f  Mobile, 208 F. Supp. 548 (S /D  
Ala. 1961); Evans v. Mobile City Lines, Inc., Civil 
Action No. 2193-63 (S /D  Ala. 1963); and Cooke v. 
City o f  Mobile, Civil Action No. 2634-63 (S /D  Ala.). 
Preston v. Mandeville, 479 F.2d (5th Cir. 1973), was a 
countywide case involving racial discrimination of 
Mobile’s jury selection practices. Smith v. Allwright, 
321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944) (white 
primaries) was applicable to Alabama and some 
Alabama cases of discrimination are Davis v. Schnell, 
81 F. Supp. 872 (S /D  Ala. 1949), a ffd  336 U.S. 933,69 
S.Ct. 749, 93 L.Ed. 1093 (1949), (“interpretation” tests 
for voter registration), Gomillion v. Lightfoot, 364 
U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) (racial 
gerrymandering of local government), Reynolds v. 
Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506



21b

(3964) (racial gerrymandering of state government), 
and U.S. v. Alabama, 252 F. Supp, 95 (M / D Ala. 1966) 
(Alabama poll tax).

The racial polarization existing in the city and 
county elections has been discussed herein. The court 
finds that the existence of past discrimination has 
helped preclude the effective participation of blacks in 
the election system today in the at-large system of 
electing school commissioners.

In the 1950’s and early sixties, prior to the Voting 
Rights Act of 1965, only a relatively small percentage of 
blacks were registered to vote in the county.15 Since the 
Voting Rights Act, the blacks have been able to register 
to vote and become candidates.

ENHANCING FACTORS

With reference to the enhancing factors, the court 
finds as follows:

(1) The county wide election encompasses a large 
district. Mobile County has an area of 1,240 square 
miles with a population of 317,308 in 1970 and an 
estimated population of 337,200 in 1976.

(2) There is a majority vote requirement for the 
school commissioners in the primaries.

(3) There is no anti-single shot voting provision but

15In the 1950’s and 196Q’s, the impediments placed in the registration 
of the blacks to vote were not as aggravated in Mobile County as in 
some counties. It was not necessary for voter registrars to be sent to 
Mobile to enable blacks to register. However, as previously noted, in 
1946 only 255 blacks out of over 19,000 voters were registered.



22b

the candidates run for positions by place or num ber.16
(4) There is a lack of provision for the at-large 

candidates to run from a particular geographical sub­
district, as well as a lack of residence requirement.

The court concludes that in the aggregate, 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.

CONCLUSIONS OF LAW

I.

The court addresses itself first to the contention of 
the defendants that the plaintiffs are not entitled to 
relief because they do not come before the court with 
clean hands because they thwarted the efforts of the 
school commissioners to procure passage by the State 
Legislature of a constitutionally sound statute pending 
in the 1976 legislature providing for reapportionm ent 
of the Board into five single-member districts. These 
defendants further contend that the Legislature has 
demonstrated a willingness to pass a constitutionally 
sound statute providing for reapportionm ent of the 
school board into five single-member districts and that 
this function should be left to the Legislature.

The complaint in this cause was filed in June of 1975.

16The influence of this enhancing factor is minimal. It is this writer’s 
opinion, born out of 15 years experience in a State judicial office subject 
to the electoral process, that the public’s best interest is served, and it 
can make more intelligent choices, when candidates run for numbered 
positions. The choices between candidates are narrowed for the voter 
and they can be compared head to head.



23b

The State Legislature in the summer months of 1975 
passed a local act reapportioning the Board 
membership into five single-member districts which 
these defendants claim they supported. The Board 
members were dismissed as parties defendant. Shortly 
thereafter, these defendants sought a declaratory 
judgm ent in the State court as to whether or not the 
local act was constitutional. The State court declared 
the act was fatally defective because of the manner 
in which the act was published.17

On March 8, 1976, the plaintiffs sought and received 
leave to add the Board members as parties defendant 
by an amended complaint. These defendants were 
served March 19, 1976. They failed to plead. On July 
12, the plaintiffs filed a motion for a default judgment. 
On that date, the Board members filed an answer and 
responded to the motion for default judgment. The 
case was set for trial July 19, 1976. It was continued at

I7Article IV, Sec. 106 of the Constitution of 1901:
“Sec. 106. No special, private, or local law shall be passed on any 
subject not enumerated in section 104 of this Constitution, except 
in reference to fixing the time of holding courts, unless notice of 
the intention to apply therefor shall have been published, without 
cost to the state, in the county or counties where the matter or 
thing to be affected may be situated, which notice shall state the 
substance of the proposed law and be published at least once a 
week for four consecutive weeks in some newspaper published in 
such county or counties, or if there is no newspaper published 
therein, then by posting the said notice for four consecutive weeks 
at five different places in the county or counties prior to the 
introduction of the bill; and proof by affidavit that said notice has 
been given shall be exhibited to each house of the legislature, and 
said proof spread upon the journal. The courts shall pronounce 
void every special, private, or local law which the journals do not 
affirmatively show was passed in accordance with the provisions 
of this section.”



24b

the request of these defendants.18 The case was reset for 
trial September 9, 1976. On September 2, 1976, these 
defendants filed a motion to sever and to dismiss or 
continue.19 On September 9, 1976, these defendants 
filed a motion to stay pending certification for 
interlocutory appeal and a motion to stay pending 
appeal, all of which were denied. Beginning with these 
defendants’ response to motion for default judgm ent 
and in connection with other motions herein 
mentioned, these Board members have contended they 
were making a good faith effort to get a constitu­
tionally sound legislative enactment passed in the 1976 
Legislature but the plaintiffs blocked passage of the 
bill. They sought a continuance until the legislature 
meets again in 1977 to give that legislature an 
opportunity to pass a constitutionally sound bill 
dividing the school board into five single-member 
districts. Although the language varied in motion to 
motion and document to document, the thrust of each 
motion was that single-member districts could be 
provided for by the legislature. The September 2 
motion to sever and dismiss and continue by these 
defendants used this language:

“Despite the efforts of these defendants, the bill 
was not passed into law but was blocked by the 
negative votes of three members of the Mobile 
County legislative delegation.”

all of whom were black and within the plaintiff class.
On the last page of the motion, this language was used:

“And the Board of School Commissioners of

18See “Appendix A.”
l9See n. 18, supra, “Appendix A.”



25b

Mobile County can be reapportioned into five 
single member districts meeting all constitutional 
standards by the normal legislative process. . . 
(Emphasis added.)

The same, or substantially the same language was used 
in the September 9 motion for a stay pending appeal. 
In a proposed Findings of Fact and Conclusions of 
Law prepared by these defendants in pursuance of this 
court’s pretrial order, on the last two pages this 
language was used:

“The Legislature of the State of Alabama has 
demonstrated its willingness, without intervention 
by this court, to provide a constitutionally sound 
system of governance for the Mobile County 
Public School System. . . .”

and
“. . . plaintiffs have on at least one occasion 
blocked the good faith efforts to the defendant 
School Board to procure passage by the State 
Legislature of a constitutionally sound statute 
providing for reapportionm ent of the School 
Board into five single-member districts.” (Empha­
sis added.)
In a trial memorandum of these defendants, page 26, 

it was stated:

“. . . it is entirely clear that the legislative remedy is 
available.”

This brief was filed September 2.
The evidence before the court indicated that the 

black legislators from this county became concerned 
with whether or not the proposed act pending in the 
1976 legislature would be constitutionally sound. 
During closing arguments in this cause, the provisions



26b

of the 1901 Constitution, Sec. 27020 were discussed. 
The court directed an inquiry to counsel for these 
defendants whether or not it was his contention and 
belief that the at-large system could be constitutionally 
changed by the bill pending in the 1976 legislature. He 
answered no because the bill was a general bill, citing 
Alabama Supreme Court authorities, which he 
contended supported his position. This was the first 
notice the court had that the legal position of counsel 
for these defendants was that the single-member 
district bill as drafted and presented to the 1976 
legislature could not be constitutionally enacted. In the 
post-trial memorandum filed by these defendants 
September 29, 1976, p. 4, it was stated:

“. . . and general Acts of the Legislature relating to 
school matters have no applicability to the Mobile 
County Public School system by virtue of the 
provisions of §270 of the Constitution of Alabama 
of 1901.” (Emphasis added.)
These defendants had persistently contended the 

1976 bill was the same as the 1975 Act. It was not. 
According to these defendants now, there is a vital 
difference. The 1975 Act was a local act, the proposed 
1976 Act was a general act. These developments 
explode these defendants’ contention that the plaintiffs 
do not come into court with clean hands. Clearly, these 
defendants were trying to place the shoe on the wrong 
foot. The court takes judicial notice of the lack of 
cooperation and dilatory practices of the School Board 
in the past in the Birdie Mae Davis case.

20See n. 5, supra.



27b

II.

There is a threshold question faced by this court in
whether or not Washington v. D avis,____ U .S-------- ,
96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), is dispositive of 
this case so as to preclude an application of the factors 
determinative of voter dilution as set forth in White 
and Zimmer, affd . sub nom. East Carroll Parish 
School Board.

It is defendants’ contention that Washington makes 
it clear that to prevail the plaintiffs must prove that the 
statute establishing the at-large election was adopted  
with a discriminatory purpose. They assert that the 
present existence of the five member Board and their 
at-large election on a staggered basis every two years is 
provided for by a local Act enacted in 1919, and at that 
time blacks were disenfranchised. If the court accepted 
the plaintiffs’ contention that the 1939, etc. Acts, 
general acts, are the statutes the Board is operating 
under, it would make no difference because the blacks 
were effectively disenfranchised at the time of those 
enactments. Therefore, this court need not determine 
the Alabama constitutional question, to wit, does it 
take a local act or a constitutional amendment to 
change the present make-up of the Board and the 
manner by which they are elected. It is reasoned in 
either event that the at-large system of electing school 
commissioners when adopted had no relation to 
minimizing or diluting the black vote because there was 
none.

The plaintiffs contend that Washington did not 
establish a new Supreme Court purpose test.

The thrust of the defendants’ argument is that if the



28b

1919 statute (or by implication, the 1939, etc. Acts) 
creating the present Board and their election at-large 
was neutral on its face Washington does not permit this 
court to consider other evidence or factors and must 
decide for the school commissioners. It is argued that 
Washington is a benchmark decision requiring this 
finding in the multi-member at-large school commis­
sioners’ election.

The school commissioners contend the board 
membership and at-large election was provided for by 
either of these statutes enacted during a period of time 
when the blacks were substantially disenfranchised in 
the State of Alabama. One of the purposes of the 1901 
Constitutional Convention was to disenfranchise the 
blacks.21

The court, therefore, will proceed to examine 
Washington on the proposition that the present school 
board membership and at-large election was provided 
for by either the 1919 or 1939, etc. Acts of the 
Legislatures.

Washington upheld the validity of a written 
personnel test administered to prospective recruits by 
the District of Columbia Police Department. It had 
been alleged the test “excluded a disportionately high 
number of Negro applicants.” Id, at 2044. The 
petitioners claimed the effect of this disportionate

2lThe history of Alabama indicates that there was a populist 
movement at that time which sought to align the blacks and the poor 
whites. The Bourbon interest of the State sought to disenfranchise the 
poor whites, along with the blacks, but were unsuccessful, excepting the 
cumulative feature of the poll tax. They were singularly successful 
disenfranchising the blacks. The 1901 Constitution had this provision 
about the Mobile school system: “. . . provided, that separate schools 
for each race shall always be maintained by said school authorities.” N. 
5, supra.



29b

exclusion violated their Fifth Amemdment due process 
rights and 42 U.S.C. §1981. Id. at 2044. Evidence 
indicated that four times as many blacks failed to pass 
the test as whites. Plaintiffs contended the impact in 
and of itself was sufficient to justify relief. They made no 
claim of an intent to discriminate. The District Court 
found no intentional conduct and refused relief. The 
Circuit Court reversed, relying upon Griggs v. Duke 
Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 
(1973). Griggs was a Title VII action (42 U.S.C. §2000e, 
et seq.) in which the racially discriminatory impact of 
employment tests resulted in their invalidation by the 
court.

The Supreme Court in Washington reconciled its 
decision with several previous holdings, distinguished 
some, and expressly overruled some cases in which 
there were possible conclusions different from 
Washington.

They made no reference to the recent pre- 
Washington cases of its or appellate courts’ voting 
dilution decisions dealing with at-large or m ulti­
member versus single-member districts, and, in 
particular, no mention was made of the cardinal case in 
this area, White v. Regester, 421 U.S. 755, 93 S.Ct. 
2332, 37 L.Ed.2d 314, (1973), nor to Dallas v. Reese, 
421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312, (1975), 
and Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 
L.Ed.2d 766 (1975), nor to Zimmer, which the Court 
had affirmed only a few months before, nor to Turner 
v. McKeithen, 490 F.2d 191 (5th Cir. 1975). No 
reference was made to Fortson v. Dorsey, 379 U.S. 433, 
85 S.Ct. 498, 13 L.Ed.2d 401 (1965), to Reynolds, nor 
to Whitcomb. Whitcomb, 403 U.S. at 143, recognized



30b

that in an at-large election scheme, a showing that if in 
a particular case the system operates to minimize or 
cancel out the voting strength of racial or political 
elements, the courts can alter the structure. Had the 
Supreme Court intended the Washington case to have 
the far reaching consequences contended by defen­
dants, it seems to this court reasonable to conclude that 
they would have made such an expression.

There are several reasons which may be plausibly 
advanced as to why the Washington Court did not 
expressly overrule nor discuss these cases. Courts are 
not prone to attem pt to decide every eventuality of a 
case being decided or its effect on all previous cases. 
The Court may have desired that there be further 
development of the case law in the district and circuit 
courts before commenting on the application of 
Washington to this line of cases. The cases may be 
distinguishable and reconcilable with the expressions 
in Washington. Or, it may not have been the intention 
of the Washington Court to include these cases within 
the ambit of its ruling.

Washington spoke with approval of Wright v. 
Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 
(1964), reh. den. 376 U.S. 959, 84 S.Ct. 964, 11 L.Ed.2d 
977, setting out the “intent to gerrymander” 
requirement established in Wright. Washington, at 
2047-48.

Wright was the direct descendant of Gomillion v. 
Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 
(1960). These two cases involved racial gerrymandering 
of political lines. Gomillion dealt with an attem pt by 
the Alabama legislature to exclude most black voters 
from the municipal limits of Tuskegee wo whites could



31b

control the election. The court found that the State of 
Alabama impaired the voting rights of black citizens 
while cloaking it in the garb of the realignment of 
political subdivisions and held there was a violation of 
the Fifteenth Amendment. Gomillion, at 345. There 
was no direct proof of racial discriminatory intent. 
Justice Stevens in his concurring opinion noted with 
approval, “ . . . when the d isproportion^te  impact] is 
as dram atic as in Gomillion . . .  , it really does not 
matter whether the standard is phrased in terms of 
purpose or effect.” Washington, at 2054.22 (Emphasis 
added.)

Wright dealt with the issue of congressional 
redistricting of M anhattan. The plaintiffs alleged 
racially motivated districting. The congressional lines 
drawn created four districts. One had a large majority 
of blacks and Puerto Ricans. The other three had large 
white majorities. The court held the districts were not 
unconstitutionally gerrymandered upon the finding 
that “ . . . the New York legislature was [not] motivated 
by racial considerations or in fact drew the districts on 
racial lines.” Wright, 376 U.S. at 56. This set forth the 
principle that in gerrymandering cases in order for the 
plaintiffs to obtain relief they must show racial 
motivation in the drawing of the district lines.

Washington then quoted with approval from Keyes

22In Paige v. Gray, 538 F.2d 1108 (5th Cir. 1976), black citizens of 
Albany, Georgia, brought an action to invalidate the at-large system of 
electing city commissioners. At 1110, n.3, the court noted the above 
quote by Justice Stevens, but in the body of the opinion expressed 
concern with unlawful motive for discriminatory purpose as required 
by Washington. However, at 1110, the court stated “the validity of 
Albany’s change from a ward to an at-large system can best be handled 
by applying the multifactor test enunciated in . . . White v. Regester. . . 
and Zimmer v. McKeithen." Paige, at 1111, stated Zimmer still “sets the 
basic standard in this circuit.”



32b

v. School District No. 7,413 U.S. 189, 93 S.Ct. 2686, 37 
L.ED.2d 548 (3973), indicating a distinction or 
reconciliation of that case with Washington. There had 
not been racial purpose or m otivation ab initio in 
Keyes. Keyes was a Denver, Colorado, school 
desegregation case. Denver schools had never been 
segregated by force of state statute or city ordinance. 
Nevertheless, the majority found that the actions of the 
School Board during the 1960’s were sufficiently 
indicative of “ . . . [a] purpose or intent to segregate” 
and a finding of de jure  segregation was sustained. 
Keyes, at 205, 208. That court held that to find overt 
racial considerations in the actions of government 
officials is indeed a difficult task.23 

Washington further commented:

. . an invidious discriminatory purpose may 
often be inferred from the totality of the relevant 
facts, including the fact, if it is true, that the law 
bears more heavily on one race than another.” 
Washington, 96 S.Ct. at 2049.
The plaintiffs contend that Washington’s discussion 

with approval of the Keyes case permits the application 
of the “to rt” standard in proving intent. In his 
concurring opinion, Justice Stevens discussed this 
point:

“Frequently the most probative evidence of intent 
will be objective evidence of what actually
23In another Fifth Circuit case it was held that if an official is 

motivated by such wrongful intent, he or she
“. . . will pursue his discriminatory practices in ways that are 
devious, by methods subtle and elusive—for we deal with an area 
in which ‘subtleties of Conduct . . . play no small part.” U.S. v. 
Texas Ed. Agency, 532 F.2d 380, 388, (5th Cir. 1976) (Austin II) 
(school desegregation).



33b

happened rather than evidence describing the 
subjective state of mind of the actor. Fox normally 
the actor is presum ed to have intended the natural 
consequences o f  his deeds. This is particularly true 
in the case of governmental action which is 
frequently the product of compromise, of 
collective decision-making, and of mixed m otiva­
tion.” Washington, 96 S.Ct. at 2054. (Emphasis 
added.)
The plaintiffs contend this circuit’s use of the tort 

standard of proving intent squares with the above 
statements. This circuit for several years has accepted 
and approved the tort standard as proof of segregatory 
intent as a part of state action in school desegregation 
findings. Morales v. Shannon, 516 F,2d 411, 412-13 
(5th Cir. 1975), cert. den. 423 U.S. 1034 (1975).

Recently, citing Morales, supra, Cisneros v. Corpus 
Christi Independent School District, 467 F.2d 142 (5th 
Cir. 1972) (en banc), cert. den. 413 U.S. 920(1973), reh. 
den. 413 U.S. 922 (1973), and United States v. Texas 
Educational Agency, 467 F.2d 848 (5th Cir. 1972) (en 
banc) (Austin I), the Fifth Circuit in U.S. v. Texas 
Education Agency, (Austin Independent School 
District) 532 F.2d 380 (5th Cir. 1976) (Austin II) 
squarely addressed the meaning of discriminatory 
intent in the following language:

“Whatever may have been the originally intended 
meaning of the test we applied in Cisneros and 
Austin I[U.S.  v. Texas Education Agency, supra,] 
we agree with the interveners that, after Keyes, our 
two opinions must be viewed as incorporating in 
school segregation law the ordinary rule of tort law 
that a person intends the natural and foreseeable 
consequences of his actions.

*  *  *



34b

“Apart from the need to conform Cisneros and 
Austin I  to the supervening Keyes case, there are 
other reasons for attributing responsibility to a 
state official who should reasonably foresee the 
segregation effects of his actions. First, it is 
difficult—and often futile—to obtain direct 
evidence of the official’s intentions. . . . Hence, 
courts usually rely on circumstantial evidence to 
ascertain the decision-makers’ m otivation.” Id. at 
388.
This court in its findings of fact has held that when 

the 1919 statute and the 1939, etc. Acts were enacted, 
the blacks were disenfranchised and here concludes the 
statutes on their respective faces were neutral. This is in 
line with Fifth Circuit opinions, McGill v. Gadsden Co. 
Commission, 535 F.2d 277 (5th Cir. 1976), Wallace v.
House, 515 F.2d at 633 (5th Cir. 1975), vacated------
U .S_____ , 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976). No.
74-2654 (5th Cir. Sept. 17, 1976), affirmed the District 
Court and Taylor v. McKeithen, 499 F.2d 893,896 (5th 
cir. 1974). However, in the larger context, the evidence 
is clear that one of the primary purposes of the 1901 
constitutional convention was to disenfranchise the 
blacks.

Therefore, the legislature in 1919 and 1939, etc. Acts 
was acting in a race-proof situation. There can be little 
doubt as to what the legislature would have done to 
prevent the blacks from effectively participating in the 
political process had not the effects of the 1901 
constitution prevailed. The 1901 constitution and the 
subsequent statutory schemes and practices through­
out Alabama, until the Voting Rights Act of 1965, 
effectively disenfranchised most blacks.

A legislature in 1919, little more than 50 years after a



35b

bitter and bloody civil war which resulted in the 
emancipation of the black slaves, or a legislature in 
1939, etc., should have reasonably expected that the 
blacks would not stay disenfranchised. It is reasonable 
to hold that the present dilution of black Mobilians is a 
natural and foreseeable consequence of the at-large 
election system imposed.

Under Alabama law, the legislature is responsible for 
passing acts modifying the form of city and county 
governments. Mobile County elects or has an effective 
electoral voice in the election of eleven members of the 
House and three senators. The state legislature 
observes a courtesy rule, that is, if the county 
delegation unanimously endorses local legislation, the 
legislature perfunctorily approves all local county 
legislation. The Mobile County Senate delegation of 
three members operates under a courtesy rule that any 
one member can veto any local legislation. If the Senate 
delegation unanimously approves the legislation, it will 
be perfunctorily passed in the State Senate. The county 
House delegation does not operate on an unanimous 
rule as in the Senate, but on a majority vote principle, 
that is, if the majority of the House delegation favors 
local legislation, it will be placed on the House calendar 
but will be subject to debate. However, the proposed 
county legislation will be perfunctorily approved if the 
Mobile County House delegation unanimously ap­
proves it. The evidence is clear that whenever a 
redistricting bill of any type is proposed by a county 
delegation member, a major concern has centered 
around how many, if any, blacks would be elected. 
These factors prevented any effective redistricting 
which would result in any benefit to the black voters



36b

passing until the State was redistricted by a federal 
court order.24 There are now three blacks on the eleven 
member House legislative delegation. This resulted in 
passage in the 1975 legislature of a bill doing away with 
the at-large election of the County Board of School 
Commissioners and creating five single-member 
districts. This was promptly attacked by the all-white 
at-large elected County School Board Commission in 
the State court. The act was declared unconstitutional.

This natural and foreseeable consequence of the 
1919 Act, or the 1939, etc. Acts, black voter dilution, 
was brought to fruition in a few years, the middle 
1960’s, and continues to the present. This court sees no 
reason to distinguish a school desegregation case from 
a voter discrimination case. It appears to this court that 
the evidence supports the tort standard as advocated by 
the plaintiffs. However, this court prefers not to base its 
decision on this theory. This court deems it desirable to 
determine if the far-reaching consequences of 
Washington as advanced by the defendants is correct 
without regard to Keyes. This court is unable to accept 
such as broad holding with such far-reaching 
consequences.

The case sub judice  can be reconciled with 
Washington. The Washington Court, in Justice 
White’s majority opinion, included the following:

“This is not to say that the necessary discrim­
inatory racial purpose must be express or appear 
on the face of the statute, or that a law’s 
disportionate impact is irrelevant in cases 
involving Constitution-based claims of racial 
discrimination. A statute, otherwise neutral on its 14

14Sims v. Amos, 336 F. Supp. 924 (M/D Ala. 1972).



37b

face, must not be applied so as invidiously to 
discriminate on the basis of race. Yick Wo v. 
Hopkins, 118 U.S. 356 (1886).” Washington, 96 
S.Ct. at 2048.

To hold that the 1919, or 1939, etc. Acts while facially 
neutral would defeat rectifying the invidious discrim­
ination on the basis of race which the evidence has 
shown in this case would fly in the face of this principle.

It is not a long step from the systematic exclusion o f  
blacks from juries which is itself such an “unequal 
application of the law . . .  as to show intentional 
discrimination.” A tkins  v. Texas, 325 U.S. 398,404,65 
S.Ct. 1276, 89 L.Ed. 1692 (1945) and the deliberate 
systematic denials to people from juries because of 
their race, Carter v. Jury Commission, Cassell v. 
Texas, Patton v. Mississippi, cited in Washington, at 
2047, to a present purpose to dilute the black vote as 
evidenced in this case. There is a “current” condition of 
dilution of the black vote resulting from intentional 
state legislative inaction which is as effective as the 
intentional state action referred to in Keyes. 
Washington, at 2048.

More basic and fundamental than any of the above 
approaches is the factual context of Washington and 
this case. Initial discriminatory purpose in employment 
and in redistricting is entirely different from resulting 
voter dilution because of racial discrimination. 
Washington’s failure to expressly overrule or comment 
on White, Dallas, Chapman, Zimmer, Turner, 
Fortson, Reynolds, or Whitcomb, leads this court to 
the conclusion that Washington did not overrule those 
cases nor did it establish a new Supreme Court purpose 
test and require initial discriminatory purpose where 
voter dilution occurs because of racial discrimination.



38b

III.

In order for this court to grant relief as prayed for by 
plaintiffs, it must be shown that the political process 
was not open equally to the plaintiffs as a result of 
dilution of voting strength and consequently the 
members of the class had less opportunity to 
participate in the political process and elect represen­
tatives of their choice. Chapman, 420 U.S. at 18, and 
Whitcomb. “Access to the political process and not [the 
size of the minority] population” is the key determinant 
in ascertaining whether there has been invidious 
discrimination so as to afford relief. White, 412 U.S. at 
766; Zimmer, 483 F.2d at 1303.

The idea of a democratic society has since the 
establishment of this country been only a supposition 
to many citizens. The Supreme Court vocalized this 
realization in Reynolds where it formulated the “one 
person-one vote” goal for political elections. The 
precepts set forth in Reynolds are the sub-structure for 
the present voter dilution cases, stating that “every 
citizen has an inalienable right to full and effective 
participation in the political processes. . . . ” Reynolds, 
377 U.S. at 565. The Judiciary in subsequent cases has 
recognized that this principle is violated when a 
particular identifiable racial group is not able to fully 
and effectively participate in the political process 
because of the system’s structure.

Denial of full voting rights range from outright 
refusal to allow registration, Smith, to racial 
gerrymandering so as to exclude persons from voting 
in a particular jurisdiction, Gomillion, to establishing 
or maintaining a political system that grants citizens all



39b

procedural rights while neutralizing their political 
strength, White, The last arrangement is maintained by 
the countywide at-large election of school com ­
missioners.

Essentially, dilution cases revolve around the 
“quality” of representation. Whitcomb, 403 U.S. at 
142. The touchstone for a showing of unconstitutional 
racial voter dilution is the test enunciated by the 
Supreme Court in White, 421 U.S. at 765: “W hether 
multi-member districts are being used invidiously to 
cancel out or minimize the voting strength of racial 
groups.” In White, for slightly different reasons in each 
county, the Supreme Court found that the m ulti­
member districts in Dallas and Bexar Counties, Texas, 
were minimizing black and Mexican-American voting 
strength.

Attentive consideration of the evidence presented at 
the trial leads this court to conclude that the present at- 
large countywide election of school commissioners 
impermissibly violates the constitutional rights of the 
plaintiffs by improperly restricting their access to the 
political process. White, 412 U.S. at 766; W hitcomb, 
403 U.S. at 143. The plaintiffs have discharged the 
burden of proof as required by W hitcomb.

This court reaches its conclusion by collating the 
evidence produced and the law propounded by the 
federal appellate courts. The controlling law of this 
Circuit was enunciated by Judge Gewin in Zimmer, 
which closely parallels Whitcomb and White.25 The 
Zimmer court, in an en banc hearing, set forth four 
primary and several “enhancing” factors to be 
considered when resolving whether there has been

25See also Paige v. Gray, 538 F.2d 1108 (5th Cir. 1976).



40b

impermissable voter dilution. The primary factors are:

. a lack of access to the process of slating 
candidates, the unresponsiveness of legislators 
particularized interests, a tenuous state policy 
underlying the preference for multi-member or at- 
large districting, or that the existence of past 
discrimination in general precludes the effective 
participation in the election system, a strong case 
[for relief] is made.” Zimmer a t 1305. [footnotes 
omitted],

The enhancing factors include:
“a showing of the existence of large districts 
majority vote requirements, anti-single shot voting 
provisions and the lack of provision for at-large 
candidates running from particular geographical 
subdistricts.” Zimmer at 1305 [footnotes omitted].

1. LACK OF OPENNESS IN THE SLATING 
PROCESS OR CANDIDATE SELECTION 
PROCESS TO BLACKS.

Any person interested in running for school 
commissioner is able to do so.

The system at first blush appears to be neutral, but 
consideration of facts beneath the surface demonstrate 
the effects which lead the court to conclude otherwise. 
No black has ever been elected school commissioner in 
Mobile County. The evidence indicates that black 
politicians who have previously been candidates in at- 
large elections and would run again in the smaller single­
member districts, shy away from county at-large 
elections. One of the principal reasons is the 
polarization of the white and black vote. The court is 
concerned with the effect of lack of openness in the



41b

electoral system in determining whether the m ulti­
member at-large election system of the school 
commissioners is invidiously discriminatory.

In White, the Supreme Court expressed concern with 
any type of barrier to effective participation in the 
political process. Zimmer, 485 F.2d at 1305, n. 20, 
expressed its view in this language: “The standards we 
enunciate today are applicable whether it is a specific 
law or custom or practice which causes diminution of a 
minority voting strength.”

There is a lack of openness to blacks in the political 
process in the school commissioners’ election.

2. UNRESPONSIVENESS OF THE ELEC­
TED SCHOOL COM M ISSION ERS OF 
MOBILE COUNTY TO THE BLACK 
M INORITY.

It is the conclusion of the court that the countywide 
elected school commissioners as practiced in Mobile 
County has not, and is not, responsive to blacks on an 
equal basis with whites; hence there exists racial 
discrimination. Past school boards have not only 
acquiesed to segregated folkways, but the County 
School Board has been in federal court continuously 
since 1963 to effect meaningful desegregation. Davis v. 
Mobile County School Board, Civil Action No. 3003- 
63 (S /D  Ala.). During the course of this court’s 
continuing jurisdiction in Davis, there have been 15 or 
more appeals to the Fifth Circuit. As hereinbefore set 
out, the Board has been repeatedly guilty of dilatory 
practices and it cannot justly claim credit for the 
improvement of the school system today since they are



42b

operating under a court order and the watchful eye of 
the court in the implementation of that order.26

There has been a lack of responsiveness in 
employment and the operation of a dual school system. 
The disestablishment of that system and the 
establishment of a unitary system has been significantly 
slow. It is this court’s opinion that leadership should be 
furnished in non-discriminatory hiring and prom otion 
by our government, be it local, state, or federal.27

3. NO TENUOUS STATE POLICY SHOWING A 
PREFERENCE FOR AT-LARGE DISTRICTS.

The Alabama legislature has offered little evidence 
of a preference one way or the other for multi-member * 21

26All members of the school board just prior to the November 1976 
election resided in metropolitan Mobile. Four members of the school 
board presently reside in metropolitan Mobile. There have been orders 
from this court against the City of Mobile or its departments to 
desegregate the police department, the golf course, public transporta­
tion, the airport, and an order affecting the City and County which 
attack racial discrimination, to wit, the Allen, Anderson, Sawyer, 
Evans, and Cooke, supra, cases.

21 Norman R. McLaughlin, etc. v. Howard H. Callaway, et al., Civil 
Action No. 74-123-P, S/D Ala., 9/30/74, at p. 22:

“It is only fitting that the government take the lead in the battle 
against discrimination by ferreting out and bringing an end to 
racial discrimination in its own ranks,”

Mobile has no ordinances proclaiming equal employment opportunity, 
either public or private, to be its policy. There are no non-discrimina­
tory rental ordinances. On the one hand, the federal courts are often 
subjected to arguments by recalcitrant state and local officials of the 
encroachment of the federal bureaucracy and assert Tenth Amendment 
violations—while making no mention that were it not for such 
“encroachment” citizens would not have made the progress they have to 
fulfillment of equal rights. Recent history bears witness to this 
proposition.



43b

or at-large districts in its counties. This court finds state 
policy regarding multi-member at-large districting as 
neutral.

4. PAST RACIAL DISCRIM IN A TIO N .

It is this court’s opinion that fair and effective 
participation under the present electoral system is, 
because of its structure, difficult for the black citizens 
of Mobile County. Past discriminatory customs and 
laws that were enacted for the sole and intentional 
purpose of extinguishing or minimizing black political 
power is responsible. The purposeful excesses of the 
past are still in evidence today. Indeed, Judge Rives, 
writing for a three-judge panel finding the Alabama 
poll tax to be unconstitutional, stated forcefully:

“ ‘The long history of the Negroes’ struggle to 
obtain the right to vote in Alabama has been 
trumpeted before the Federal Courts of this State 
in great detail. *** If this Court ignores the long 
history of racial discrimination in Alabama, it will 
prove that justice is both blind and deaf.’ We 
would be blind with indifference, not impartiality, 
and deaf with intentional disregard of the cries for 
equality of men before the law.” U.S. v. State o f  
Alabam a , 252 F.Supp. at 104 (M.D. Ala. 1966), 
[citing Sims v. Baggett, 247 F.Supp. 96, 108-09 
(M.D. Ala. 1965)].
W ithout question, past discrimination, some of 

which continues to today as evidenced by the orders in 
several lawsuits in this court against the city and 
county, and demonstrated in the lack of access to the 
selection process and the school commissioners’ 
unresponsiveness, contributes to black voter dilution.



44b

5. ENHANCING FACTORS.

Zimmer, in addition to enumerating four substantial 
criteria in proving voter dilution, listed four 
“enhancing factors” that should be considered as proof 
of aggravated dilution.

a. Large Districts. The present at-large election 
system is as large as possible, i.e., the county. The 
county, with an area of 1,240 square miles and 317,308 
persons, according to the 1970 Census, can reasonably 
be divided into election districts. It is common 
knowledge that numerous counties in the State have 
countywide offices such as county commissioners, 
divided into single-member districts and function 
reasonably well. It is large enough to be considered 
large within the meaning of this factor.

b. Majority Vote Requirements. There is a 
majority vote requirement for primary elections, Title 
17, Sec. 366, Code o f  Alabama (1958). There is no such 
requirement in the general election. Very rarely, if ever, 
have more than two persons opposed one another in a 
general election. As a practical matter, in the past, the 
effects of a majority vote have prevailed.

c. Anti-single Shot Voting. There is no anti­
single shot voting provision in the present system of 
electing members of the Board. The Board members do 
run for a numbered place, Title 17, Sec. 153(1), Code o f  
Alabama (1958). This place provision has to some 
extent the same result as the anti-single shot voting 
provision. At least in part, the practical results of an 
anti-single shot provision obtains in Mobile County.

d. Lack o f  Residency Requirement. The present 
system of election of the Board members does not



45b

contain any provision requiring that any commis­
sioner reside in any specific district or one geographical 
area of the county.

IV.

The court has made a finding for each of the Zimmer 
factors, and most of them have been found in favor of 
the plaintiffs. The court has analyzed each factor 
separately, but has not counted the number present or 
absent in a “score-keeping” fashion.

The court has made a thoughtful, exhaustive 
analysis of the evidence in the record “ . . . paying close 
attention to the facts of the particular situation at 
hand,” Wallace, 515 F.2d at 631, to determine whether 
the minority has suffered an unconstitutional dilution 
of the vote. This court’s task is not to tally the presence 
or absence of the particular factors, but rather, its 
opinion represents “ . . . a blend of history and an 
intensely local appraisal of the design and impact of the 
multi-member district [under scrutiny] in light of past 
and present reality, political and otherwise.” White, 
412 U.S. at 769-70.

The court reaches its conclusion by following the 
teachings of White, Dallas v. Reese, 421 U.S. 477, 480, 
95 S.Ct. 1706, 44 L.Ed.2d 312 (1975), Zimmer, 
Fort son, and Whitcomb, et al.

The evidence when considered under these teachings 
convinces this court that the at-large districts “operate 
to minimize or cancel out the voting strength of racial 
or political elements of the voting population.” 
Whitcomb, 403 U.S. at 143, and Fortson, 379 U.S. at



46b

439, and “operates impermissibly to dilute the voting 
strength of an identifiable element of the voting 
population,”. Dallas, at 480. The plaintiffs have met 
the burden cast in White and Whitcomb by showing an 
aggregate of the factors cataloged in Zimmer.

In summary, this court finds that the electoral 
structure, the multi-member at-large election of 
Mobile County School commissioners, results in an 
unconstitutional dilution of black voting strength. It is 
“fundamentally unfair”, Wallace, 515 F.2d at 630, and 
invidiously discriminatory.

The Supreme Court has laid down the general 
principle that “when district Courts are forced in 
fashion apportionm ent plans, single-member districts 
are preferable to large multi-member districts as a 
general m atter.” Connor v. Johnson, 402 U.S. 690,692, 
91 S.Ct. 1760, 29 L.Ed.2d 268 (1971). The Court 
reaffirmed this twice in the last term. East Carroll 
Parish School Board, and Wallace, supra. Once the 
racial discriminatory evil has been established, as it was 
in White, the dilution occasioned by the multi-member 
at-large election requires the disestablishment of the 
multi-member at-large election and the obvious 
remedy is to establish single-member districts.

This court does not endorse the idea of quota voting 
or elections, nor of a weighted vote in favor of one race 
to offset racial prejudice or any other adversity. 
However, when the electoral structure of the 
government is such, as in this case, that racial 
discrimination precludes a black voter from an 
effective participation in the election system, a dilution 
of his and other black votes has occurred.

The moving spirit present at the conception of this



47b

nation, “all men are created equal,” will not rest and the 
great purpose of the Constitution to "establish Justice, 
insure domestic Tranquility, . . . and secure the 
Blessings of Liberty to ourselves and our Posterity.
. . will be only a dream until every person has an 
opportunity to be equal. To have this opportunity, 
every person must be treated equally in the electoral 
process.

A county school commissioner election plan which 
includes small single-member districts will provide 
blacks a realistic opportunity to elect blacks to the 
Board of School Commissioners. No such realistic 
opportunity exists as the Board is presently structured. 
A single-member district plan would afford such an 
opportunity. Blacks’ effective participation in the 
elective system will have the salutary effect of giving 
them a realistic opportunity to get into the m ainstream 
in the operation of Mobile’s school system which has a 
ratio range of 55/45 to 60/40, white/black students. It 
will give them an opportunity to have an input and 
impact on the educational system. Good quality 
education equally available to all, (with the people 
having a compassionate concern, love, for one another) 
probably affords the best hope for a strong democracy 
and the sharing of this nation’s economic and social 
benefits. It will afford an opportunity for a more 
meaningful dialogue between the whites and blacks to 
develop.

V.

There is a traditional constitutional tolerance of 
various forms of local government. See, e.g.; Abate  v.



48b

M undt, 403 U.S. 182, 185, 91 S.Ct. 1904, 29 L.Ed.2d 
399 (1971).

The court recognizes the “delicate issues of federal- 
state relations underlying this case.” Mayor o f  the 
City o f  Philadelphia, 415 U.S. at 615.

The single-member districts have advantages other 
than correcting constitutional differences as found in 
this decree.28

28 William Dove, Sr., et al. v. Charles E. Moore, et at, S.O. 75-1918 
(8th Cir. 7/27/76), set out in footnote 3:

“The author has previously discussed at length the undesirable 
characteristics of at-large elections and the benefits of single­
member districts. Chapman v. Meier, 372 F. Supp. 371, 388-94 
(D. N.D. 1974) (three-judge court) (Bright, J., dissenting), 
majority reversed, 420 U.S. 1 (1975). In the context of a discussion 
of proposed plans for the reapportionment of a state legislature, 
the dissent emphasized the following benefits of single-member 
districts:

(1) It gives a voter a chance to compare only two candidates, 
head to head in making a choice.

(2) It prevents one political party with a heavy plurality in 
one or two potential districts from dominating other 
potential districts that might narrowly go for the 
candidate of the opposite party.

(3) It prevents a city wide political organization from 
ostracizing or disciplining a legislator, who dares stray 
from the machine’s line.

(4) It permits a citizen to identify a legislator as his senator 
and makes direct communication easier,

(5) It makes each senator responsible for his actions and 
makes it difficult for a senator to fade into the ranks of 
“the team” to avoid being identified with specific actions 
taken.

(6) It reduces campaign costs and “personalizes” a cam- 
paign.

(7) It creates greater interest in the possibility of a citizen 
seeking a legislative seat w ithout the political machine 
blessing.

(8) It would diminish the anim osity created in the legislature 
against multi-senate districts because of the tendency of

(continued)



49b

The court hereby adopts the plan, including the map 
designating the districts, submitted by the plaintiffs 
and attached as “Appendix B” and is part of this decree 
the same as if set out at length herein. This plan divides 
the county into five single-member districts. The lines 
are drawn along traditional precinct lines which will 
minimize voting conflicts. There is a maximum 
population variation in the districts of 6.3%

The court has stated repeatedly to the parties that it 
felt constrained to tinker with the present size of the 
membership and other features of the existing method 
of election as little as possible, i.e., require only that 
which is necessary to meet the constitutional mandates 
of this decree.

The Commissioners for Districts 3 and 4 will be 
elected in 1978. Commissioners for Districts 2 and 5 
will be elected in November, 1980. The commissioner 
for District 1 will be elected in November, 1982. the 
commissioners will take office on the date as provided 
by the laws of the State of Alabama.

As the single-member districts are elected in the 
future, each school commissioner shall have been a 
resident of the district which that person represents for 
not less than 12 months immediately preceding that 
person’s election and shall reside in the district during 
that person’s term of office. All other qualifying 
elegibility requirements should be that as provided by * 9 10
(footnote continued from preceding page)

senators elected by one political party from a city to vote 
as a bloc.

(9) It would tend to guarantee an individual point of view if 
all senators are not elected as a team.

(10) It would equalize the power of people in single senate 
districts with the people in the broken down multi-senate 
districts to influence the election of only one senator.

[372 F. Supp. at 391 (footnote omitted) (emphasis in original).]



50b

the laws of the State of Alabama. All other laws of the 
State of Alabama as apply to the Mobile County 
School System not in conflict with this order shall 
govern.

The Board since 1919 has been made up of five 
members. Various proposals have been made to 
enlarge the membership and designate when the new 
members should be elected . It is the court’s considered 
judgm ent that changes made by the court should be 
minimal and only to correct constitutional deficiencies. 
For these reasons, the number of the members of the 
Board, the length of the term of office, and the 
staggered office terms and election, are to remain as 
provided by the legislature.

The plaintiffs desired a hearing far enough in 
advance of the November election for the court to 
make a decision, and if single-member districts were 
provided, that a special election be held prior to the 
1976 general election with the winners of the various 
party elections being placed on the November general 
election ballot. If this was not done, they requested a 
special election be called after the general election.

The defendants desired that all elected members of 
the Board be allowed to serve out their respective terms 
until vacancies were created in sufficient num ber to fill 
the single-member districts predominantly populated 
by black voters. i

Due to the time problems created by the dismissal, 
and later adding the school commissioners as 
defendants, the defendants would not have had 
sufficient time to prepare their defense, and the court 
would have been unable to make a reasoned judgm ent 
for elections to be held in 1976.



51b

The court is unwilling to put the taxpayers to the 
expense of special elections, and the court is unwilling 
to deny the blacks the relief they are entitled to until 
1980, a period of four years. The court is desirous of 
mitigating the adjustment and seeing that each elected 
member on the Board serves the longest possible period 
of time.

During the course of the trial, the court was advised 
by these defendants that they were interested in 
implementing a single-member district plan, shorten­
ing the litigation and reducing the expenses. They 
requested an opportunity for the defendants and 
plaintiffs to negotiate a compromise settlement. The 
parties indicated they desired some guidelines from the 
court concerning when the election of single-member 
representatives would take place, and, if any of the 
elected members’ terms would be shortened, which 
one. The court stated in substance the above election 
schedule and stated it appeared equitable to the court 
that if any member’s terms were shortened, it should be 
those who had the least remaining time of service 
remaining on their six year term.

This approach continues to be the view of the court 
as an equitable solution. The present board members 
who will have the least remaining time of service, or 
who will have served most of their elected term at the 
time of the 1978 elections, will be Board members 
Alexander and Drago.

Under the ordered single-member district plan which 
requires residence in the district which the commis­
sioner represents, the present Board members now 
reside in the districts as follows:

Commissioners Bosarge, Alexander, and Berger in



52b

District 2.
Commissioner Sessions in District 4.
Commissioner Drago in District 5.

No one resides in District 3 which has a majority 
black population and is entitled to a commissioner in 
1978. Commissioner Sessions resides in District 4 
which has a majority black population and is entitled to 
a place in 1978. Commissioner Sessions’ term expires in 
1978 and there will autom atically be a vacancy for that 
district at that time.

In order for District 3 to have a place, one other 
Board member’s term must be shortened or modified. 
Proceeding on the premises above stated of shortening 
or modifying members’ terms who had the least 
remaining time of service, the choice narrows to 
Commissioners Alexander and Drago.

It appears more equitable to the court to modify one 
commissioner’s powers and duties and allow that 
commissioner to complete his term rather than shorten 
it. For the remaining four commissioners, presently in 
office, after 1978, to complete their currently elected 
terms with new commissioners to be elected for 
Districts 3 and 4 in 1978, would make a Board 
consisting of six members. A six member board would 
lend itself to possible tie votes of three to three. The 
Board could be rendered ineffective under such 
conditions.

Should one of the places held by a commissioner
other than Commissioner Sessions, whose place will 
not be open for election in 1978, become vacant prior to 
the time required by the laws of the State of Alabama 
for qualifying for the November, 1978, election, that 
place will not be filled by election in 1978, but will be



53b

occupied by either Commissioner Alexander or Drago.
In the event there is not a vacancy in one of the 

present places as above set out, the Board, by a 
majority vote on or before one month prior to the 
general election in 1978, shall elect a Chairman or 
President (Chairman) of the Board, and immediately 
report the results of the election to this court, to serve 
until the general election in 1980, and the successors for 
the two places elected in 1980 have qualified and taken 
office. The Chairman to be elected is to be either 
Commissioner Alexander or Commissioner Drago, the 
two members of the present Board with the least 
remaining years of service in their elected term. Their 
present terms expire after the general election in 
November, 1980, when their successors have been 
elected, qualified and taken office according to the laws 
of Alabama. The Chairman will have all the powers the 
Chairman would have under the law, rules, and 
regulations they are governed by except the right to 
vote. For this two year period of time only, 1978 to 
1980, the Chairman will have the right to vote only in 
the event of a tie vote which could be occasioned by 
abstension, absence, or any other reason. After the 
1980 election, the Board will have only five members 
and this provision with reference to the Chairman will 
no longer apply.

It is therefore O RD ERED , A D JU D G ED , and 
D ECREED  that there shall be elected in November, 
1978, school commissioners for Districts 3 and 4; there 
shall be elected in November, 1980, school commis­
sioners for Districts 2 and 5; and there shall be elected 
in November, 1982, a school commissioner from 
District l .29

29All the Districts to be as described in Appendix B.



54b

It is further O RD ERED , A D JU D G ED  and 
D ECREED  that whenever there shall be a change in 
any of the five districts heretofore established, 
evidenced by a federal census of population published 
following a federal census hereafter taken, there shall 
be a reapportionm ent of the school commissioner 
districts in the manner hereinafter provided.

(1) The school commissioners shall within six 
months after the publication of each decennial federal 
census of population for the county, commencing with 
the 1990 census, file with this court a report containing 
a recommended plan for the reapportionm ent of the 
school commissioner boundaries to comply with the 
following specifications:

(a) Each district shall be formed of contiguous 
and to the extent reasonably possible, compact 
territory, and its boundary lines shall follow State 
Senate and House district lines, ward or precinct lines, 
to the mazimum extent possible and other boundary 
lines shall be the center lines of streets or other well 
defined boundaries.

(b) Each district shall contain as nearly as is 
reasonable, the same population.

(2) The report shall include a map and description of 
the districts.

(3) The provisions of the 1965 Voting Rights Act 
shall be complied with.

(4) The school commissioners shall comply with any 
other United States Congressional legislation relating 
to this subject m atter and in compliance with the 
United States constitutional law.

(5) Upon compliance with the above provisions, the 
redistricting should become effective.



55b

(6) Such redistricting shall not apply to any regular 
or special election held within six months after its 
becoming effective. No incumbent member of the 
Board shall be deprived of his unexpired term of office 
because of such redistricting.

It is further ORD ERED , A D JU D G ED  and 
DECREED that the defendants, John L. Moore, 
individually and in his official capacity as Probate 
Judge of Mobile County; John E. Mandeville, 
individually and in his capacity as Court Clerk of 
Mobile County; Thomas J. Purvis, individually and in 
his official capacity as Sheriff of Mobile County, 
Robert R. Williams, Dan. C. Alexander, Jr., Norman 
J. Berger, Ruth F. Drago, Homer L. Sessions, 
individually and in their official capacities as School 
Commissioners of Mobile County, Alabama; the 
Board of School Commissioners of Mobile County, 
Alabama, and Mobile County, Alabama, their agents, 
servants, employees, and successors, are hereby 
ENJOINED from failing to:

(1) Redistrict as set out above.
(2) Make and hold the elections as redistricted.

The defendant Board of School Commissioners and 
Mobile County are taxed with the costs, including 
attorneys’ fees.

Within 30 days from this date, the attorneys for the 
plaintiffs are to file affidavits setting forth their claim 
for attorney’s fees, including hours worked and hourly 
charges. The defendants, School Board Commisioners 
and Mobile County, are to be sent a copy of this claim 
and these defendants may object in writing within 15 
days.



56b

This court retains jurisdiction for the implementa­
tion of this order.

Done, this the 9th day of December, 1976.

UNITED STATES D ISTRICT JU D G E

U.S, DISTRICT COURT 
SOU. DIST. ALA,
FILED AND ENTERED THIS THE 
9th DAY OF DECEM BER, 1976 
MINUTE ENTRY NO. 42,403 
W ILLIAM  J. O’CONNOR, CLERK
BY _ ____________________

Deputy Clerk



57b

“APPENDIX A”
IN THE UNITED STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF ALABAMA 
SOUTHERN DIVISION

LEILA G. BROWN, )
et al., )

)
Plaintiffs, )

) CIVIL
V, ) ACTION

) No. 75-298-P
JOHN L. MOORE, )
et al., )

)
Defendants. )

O RD ER ON DEFENDANT BOARD OF SCHOOL
COM M ISSIONERS’ MOTION TO SEVER AND 

DISM ISS OR CONTINUE

The defendant’s motion to sever is hereby DENIED.
The defendant’s motion to dismiss is hereby DENIED.
The defendant’s motion to continue in order to give the 

Legislature of the State of Alabama an opportunity to act 
on a proposed redistricting is hereby DENIED.

The complaint was filed June 9, 1975. The defendant’s 
attention is directed to a conference with the attorneys for 
the Board of School Commissioners, the County Commis­
sioners, and the City Commission of the City of Mobile, in 
open court on July 14, 1976. The long delay of the 
defendant in answering the complaint making the School 
Board, et al., defendants a second time, was called to the 
attention of the attorney for the defendant School Board.



58b

It was at the request of the defendant School Board that a 
continuance was granted of the trial of their case at that 
time, although there were mitigating court scheduling 
problems.

It was common knowledge at that time that a proposed 
redistricting plan had been passed at a previous session of 
the Legislature but later declared unconstitutional. It was 
common knowledge there was pending in the State 
Legislature which was then in session a redistricting plan. 
The court specifically advised counsel for all the parties 
that the court would not be disposed to further delay the 
trial or decision after the September, 1976, setting, and if 
any, or all of the defendants, anticipated seeking changes in 
the makeup or districting of their respective Commissions 
or Boards, they should take action while the Legislature 
was then in session. Due to the age of this case, and the 
Legislature having had two opportunities to act during its 
pendency, additional delays are not justified.

Done, this the 7th day of September, 1976.

/s/ Eligible
UNITED STATES DISTRICT 
JUDGE

U. S. DISTRICT COURT 
SOU. DIST. ALA.
FILED AND ENTERED THIS THE 
7th DAY OF SEPTEMBER, 1976 
MINUTE ENTRY NO.
WILLIAM J. O’CONNOR, CLERK 
BY /s/ G. R. Sylvester 

Deputy Clerk



59b

A PPEN D IX  B

Analysis of Plaintiffs’ Plan for School Board

District

District
Ward/
Precinct Population

% Black 
VAP

Weighted 
Black Pop.

1 100-4 7,760 .006 46
101-1 7,310 .007 51
North 37,665 7,514
West 12,851 1,538

65,585 9,149
13.9%

2 104-5 4,767 .02 95
South 34,924 5,148
100-1 3,122 .05 156
100-2 2,078 .08 166
100-3 7,007 .22 1,542
101-3 5,520 .004 22
101-2 4,196 .026 109

61,634 7,238
11.7%

3 Prichard 41,578 21,005
98-1 9,438 .666 6,286
99-1 12,709 .91 11,565

63,725 38,856
61.0%



60b

99-2 8,664 .954 8,265
99-3 4,510 .906 4,086
99-4 5,536 .997 5,539
103-1 8,946 .995 8,901
103-2 4,672 .465 2,172
103-3 8,903 .636 5,662
102-2 4,896 .03 147
102-3 4,244 .01 42
103-4 11,419 .026 297

61,790 35,091
56.

102-4 2,704 .003 8
102-6 5,280 .043 227
102-7 3,872 .785 3,040
102-1 4,793 .22 1,054
102-5 6,914 .000 0
101-4 5,833 .074 432
104-1 8,091 .117 947
104-2 3,514 .07 246
104-3 8,410 .067 563
104-4 6,029 .008 48
101-5 5,664 .074 419
103-6 3,489 .074 258

64,593 7,242
11.2%

Sources: figures compiled by Tony Parker for regression
analysis.



61b

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

SOUTHERN DIVISION

LEILA G. BROWN, et al., )
)

Plaintiffs, )
) CIVIL 
) ACTION

V. ) No. 75-298-P
)

JOHN L. MOORE, etc., et al., )
)

Defendants. )

ORDER AND DECREE AMENDING ORDER AND 
DECREE DATED DECEMBER 9, 1976

The opinion and order signed by this court December 9, 
1976, is AMENDED as follows:

The style of the case is AMENDED to read as follows:

“LEILA G. BROWN, MARY LOUISE )
GRIFFIN, COOLEY, JOANNIE ALLEN)
DUMAS, ELMER JOE DAILY )
EDWARDS, ROSIE LEE HARRIS, )
HAZEL C. HILL, JEFF KIMBLE, )
FRANCES J. KNIGHT, JOHN W. )
LEGGETT, JANICE M. McAUTHOR, )

)
Plaintiffs, )

)
V. ) CIVIL

) ACTION
JOHN L. MOORE, individually and in ) No. 75-298-P 
his official capacity as Probate Judge of )



62b

Mobile County; JOHN E. MANDEVILLE,) 
individually and in his official capacity as )
Court Clerk of Mobile County, THOMAS J.)
PURVIS, individually and in his official ) 
capacity as Sheriff of Mobile County; )
HOWARD E. YEAGER, COY SMITH, G.)
BAY HAAS, individually and in their official) 
capacity as Mobile County Commissioners: )
MOBILE COUNTY; THE BOARD OF )
SCHOOL COMMISSIONERS, ROBERT )
R. WILLIAMS, DAN C. ALEXANDER, )
JR., NORMAN J. BERGER, RUTH F. )
DRAGO, HOMER L. SESSIONS, indivi- ) 
dually and in their official capacity as School)
Commissioners of Mobile County, Alabama,)

)
Defendants.” )

On page 3, the first paragraph is AM EN DED to read 
as follows:

“This court has jurisdiction over the claims grounded 
on 42 U.S.C, Sec. 1983 against the Board members and 
over the claims grounded on 42 U.S.C. Sec. 1973 
against all defendants and under 28 U.S.C. Secs. 
1343(3)-(4) and 2201.”

On page 3, that portion of the fourth paragraph
. . the Sheriff, and Mobile County.” is AM EN DED 

to read “the Sheriff and the Board of School Com­
missioners of Mobile County.”

On page 44, the second and third sentence in the first 
paragraph is AM ENDED to read as follows;

“The Commissioner for District 5 will be elected in 
November, 1980. The Commissioners for Districts 1 
and 2 will be elected in November, 1982.”



63b

On page 44, in the third paragraph, the portion of the 
second sentence, which reads as follows:

. . and the staggered office terms and election, 
are to remain. . .

is AM EN DED to read as follows:
. . and the staggered office terms and election, 

except as modified herein, are to remain. . . .”
Page 47 is AM EN DED to read as follows:
“Should one of the places held by a commissioner 

other than Commissioner Sessions, whose place will 
not be open for election in 1978, become vacant prior to 
the time required by the laws of the State of Alabama 
for qualifying for the November, 1978, election, that 
place will not be filled by election prior to November, 
1980, but will be occupied by either Commissioner 
Alexander or Drago until the expiration of the period 
of the present term they are now serving.

In the event there is not a vacancy in one of the 
present places as above set out, the Board, by a 
majority vote on or before one month prior to the 
general election in 1978, shall elect a Chairman or 
President (Chairman) of the Board, and immediately 
report the results of the election to this court, to serve to 
the end of the term in 1980 for which that person has 
been elected. The Chairman to be elected is to be either 
Commissioner Alexander or Commissioner Drago, the 
two members of the present Board with the least 
remaining years of service in their elected term. Their 
present terms expire after the general election in 
November, 1980.

Since Commissioner Drago’s term expires at that 
time and her place would ordinarily be up for election 
in the general election of November, 1980, her



64b

successor will be elected from District 5 in the general 
election of 1980. Commissioner Drago will serve to the 
end of the term for which she has been elected and until 
her successor has been elected, qualified, and taken 
office according to the laws of Alabama. Since 
Commissioner Alexander resides in District 2, and 
Commissioners Bosarge and Berger live in District 2, 
no vacancy will exist in that district in 1980. Commis­
sioner Alexander will serve until the end of the term in 
1980 to which he was elected in 1974.

The Chairman elected under this order will have all 
the powers the Chairman would have under the law, 
rules, and regulations the Chairman is now governed 
by except the right to vote. For this two year period of 
time only, 1978 to 1980, the Chairman will have the 
right to vote only in the event of a tie vote which could 
be occasioned by abstension, absence, or any other 
reason. After the 1980 election, the Board will have 
only five members and this provision with reference to 
the Chairman will no longer apply.

It is therefore O RD ERED , A D JU D G ED , and 
D ECREED that there shall be elected in November, 
1978, school commissioners from District 3 and 4; 
there shall be elected in November, 1980,”



65b

On page 48, the first three lines are to be AM EN D­
ED to read as follows:

“a school commissioner for District 5; and there shall 
be elected in November, 1982, school commissioners 
from District 1 and 2.29”

Done, this the 13th day of December, 1976.

UNITED STATES DISTRICT 
JUDGE

U.S. DISTRICT COURT 
SOU. DIST. ALA.
FILED AND ENTERED THIS THE 
13TH DAY OF DECEMBER 1976 
MINUTE ENTRY NO. 42,431 
WILLIAM J. O’CONNOR, CLERK 
BY

Deputy Clerk



1c

APPENDIX “C”

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF ALABAMA 

213 U. S. COURT HOUSE & CUSTOM HOUSE 
MOBILE, ALABAMA 36602

DATE: JANUARY 4, 1977

TO: Mr. Robert C. Campbell, III, Daniel A. Pike and
Frank G. Taylor, 800 Downtowner Blvd., 
Mobile, Alabama 36609 

Messrs. J. U. Blacksher & Larry Menefee, 1407 
Davis Ave., Mobile, Alabama 36603 

Mr. Edward Still, Suite 601, Title Bldg., 2030 - 
3rd Avenue, North, Birmingham, Alabama 
35203

RE: CIVIL ACTION NO. 75-298-P

LEILA BROWN, ET AL VS. JOHN L. MOORE, ETC., 
ET AL
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

You are advised that on the 4TH day of JANUARY 
1977 the following action was taken in the above-entitled 
case by Judge Virgil Pittman:

Motion for Re-Hearing filed by ROBERT R. WILLIAMS, 
ET AL (School Board Commissioners) on 12-21-76 is 
DENIED.

WILLIAM J. O’CONNOR, CLERK 
BY: /s/ William J. O’Connor 

Deputy Clerk



I d

APPENDIX “D”

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

SOUTHERN DIVISION

LEILA G. BROWN, MARY LOUISE )
GRIFFIN, COOLEY, JO ANNIE ALLEN)
DUMAS, ELMER JOE DAILY )
EDWARDS, ROSIE LEE HARRIS, )
HAZEL C. HILL, JEFF KIMBLE, ) 
FRANCES I. KNIGHT, JOHN W. ) 
LEGGETT, JANICE M. McAUTHOR, )

)
Plaintiffs, )

)
V. )

)
JOHN L. MOORE, individually and in ) CIVIL 
his official capacity as Probate Judge of ) ACTION
Mobile County; JOHN E. MANDEVILLE,) No. 75-298-P 
individually and in his official capacity as )
Court Clerk of Mobile County, THOMAS )
J. PURVIS, individually and in his official ) 
capacity as Sheriff of Mobile County; )
HOWARD E. YEAGER, COY SMITH, G.)
BAY HAAS, individually and in their official) 
capacity as Mobile County Commissioners; )
ROBERT R. WILLIAMS, DAN C. ) 
ALEXANDER, JR., NORMAN J. )
BERGER, RUTH F. DRAGO, HOMER L.)
SESSIONS, individually and in their official) 
capacity as School Commissioners of Mobile)
County, Alabama, )

)
)Defendants.



2d

JU D G M EN T

This court has heretofore entered its findings of fact 
and conclusions of law in favor of the plaintiffs and 
against the defendants, John L, Moore, individually 
and in his official capacity as Probate Judge of Mobile 
County; John E. Mandeviile, individually and in his 
official capacity as Court Clerk of Mobile County; 
Thomas J. Purvis, individually and in his official 
capacity as Sheriff of Mobile County; Robert R. 
Williams, Dan C. Alexander, Jr., Norman J. Berger, 
Ruth F. Drago, Homer L. Sessions, individually and 
in their official capacity as School Commissioners of 
Mobile County, Alabama, and Mobile County, 
Alabama.

The court has found that the electoral structure, the 
multi-member at-large election of the School Commis­
sioners of Mobile County, results in an unconstitu­
tional dilution of the black plaintiffs’ voting strength. It 
is fundamentally unfair and invidiously discrim­
inatory.

In the plan adopted and approved by the court and 
attached to the court’s Opinion and Order as 
“Appendix B” thereof, the Commissioners for Districts 
3 and 4 will be elected in 1978. A commissioner for 
District 5 will be elected in November, 1980. The 
commissioners for Districts 1 and 2 will be elected in 
November, 1982. The commissioners will take office on 
the date as provided by the laws of the State of 
Alabama.

As the single-member districts are elected in the 
future, each school commissioner shall have been a 
resident of the district which that person represents for



3d

not less than 12 months immediately preceding that 
person’s election and shall reside in the district during 
that person’s term of office. All other qualifying and 
eligibility requirements should be that as provided by 
the laws of the State of Alabama. All other laws of the 
State of Alabama as apply to the Mobile County 
School System not in conflict with this order shall 
govern.

The number of the members of the Board, the length 
of the term of office, and the staggered office terms and 
election, are to remain as provided by the legislature.

Under the ordered single-member district plan which 
requires residence in the district which the commis­
sioner represents, the present Board members now 
reside in the districts as follows:

Commissioners Bosarge, Alexander, and Berger in 
District 2.

Commissioner Sessions in District 4.
Commissioner Drago in District 5.

No one resides in District 3 which has a majority 
black population and is entitled to a commissioner in 
1978. Commissioner Sessions resides in District 4 
which has a majority black population and is entitled to 
a place in 1978. Commissioner Sessions’ term expires in 
1978 and there will automatically be a vacancy for that 
district at that time.

In order for District 3 to have a place, one other 
Board member’s term must be shortened or modified. 
Proceeding on the premises stated of shortening or 
modifying members’ terms who had the least remaining 
time of service, the choice narrows to Commissioners 
Alexander and Drago.



4 d

Should one of the places held by a commissioner 
other than Commissioner Sessions, whose place will 
not be open for election in 1978, become vacant prior to 
the time required by the laws of the State of Alabama 
for qualifying for the November, 1978, election, that 
place will not be filled by election prior to November, 
1980, but will be occupied by either Commissioner 
Alexander or Drago until the expiration of the period 
of the present term they are now serving.

In the event there is not a vacancy in one of the 
present places as above set out, the Board, by a 
majority vote on or before one m onth prior to the 
general election in 1978, shall elect a Chairman or 
President (Chairman) of the Board, and immediately 
report the results of the election to this court, to serve to 
the end of the term in 1980 for which that person has 
been elected. The Chairman to be elected is to be either 
Commissioner Alexander or Commissioner Drago, the 
two members of the present Board with the least 
remaining years of service in their elected term. Their 
present terms expire after the general election in 
November, 1980.

Since Commissioner Drago’s term expires at that 
time and her place would ordinarily be up for election 
in the general election of November, 1980, her 
successor will be elected from District 5 in the general 
election of 1980. Commissioner Drago will serve to the 
end of the term for which she has been elected and until 
her successor has been elected, qualified, and taken 
office according to the laws of Alabama. Since 
Commissioner Alexander resides in District 2, and 
Commissioners Bosarge and Berger live in District 2, 
no vacancy will exist in that district in 1980.



5d

Commissioner Alexander will serve until the end of the 
term in 1980 to which he was elected in 1974.

The Chairman elected under this order will have all 
the powers the Chairman would have under the law, 
rules, and regulations the Chairm an is now governed 
by except the right to vote. For this two year period of 
time only, 1978 to 1980, the Chairman will have the 
right to vote only in the event of a tie vote which could 
be occasioned by abstention, absence, or any other 
reason. After the 1980 election, the Board will have 
only five members and this provision with reference to 
the Chairman will no longer apply.

It is therefore O RD ERED , A D JU D G ED , and 
DECREED  that there shall be elected in November, 
1978, school commissioners from District 3 and 4; 
there shall be elected in November, 1980, a school 
commissioner for District 5; and there shall be elected 
in November, 1982, a school commissioner from 
District 1 and a school commissioner from District 2.1

It is further O RD ERED , A D JU D G ED  and 
DECREED that whenever there shall be a change in 
any of the five districts heretofore established, 
evidenced by a federal census of population published 
following a federal census hereafter taken, there shall 
be a reapportionment of the school'commissioner districts 
in the manner hereinafter provided.

(1) The school commissioners shall within six 
months after the publication of each decennial federal 
census of population for the county, commencing with 
the 1990 census, file with this court a report containing 
a recommended plan for the reapportionm ent of the 
school commissioner boundaries to comply with the 
following specifications:

’All the Districts to be as described in Appendix B to the Opinion 
and Order.



6d

(a) Each district shall be formed of contiguous 
and to the extent reasonably possible, compact 
territory, and its boundary lines shall follow State 
Senate and House district lines, ward or precinct lines, 
to the maximum extent possible and other boundary 
lines shall be the center lines of streets or other well 
defined boundaries,

(b) Each district shall contain as nearly as is 
reasonable, the same population.

(2) The report shall include a map and description of 
the districts.

(3) The provisions of the 1965 Voting Rights Act 
shall be complied with.

(4) The school commissioners shall comply with any 
other United States Congressional legislation relating 
to this subject matter and in compliance with the 
United States constitutional law.

(5) Upon compliance with the above provisions, the 
redistricting should become effective.

(6) Such redistricting shall not apply to any regular 
or special election held within six months after its 
becoming effective. No incumbent member of the 
Board shall be deprived of his unexpired term of office 
because of such redistricting.

It is further O RD ERED , A D JU D G ED  and 
DECREED that the defendants, John L. Moore, 
individually and in his official capacity as Probate 
Judge of Mobile County; John E. Mandeville, 
individually and in his capacity as Court Clerk of 
Mobile County; Thomas J. Purvis, individually and in 
his official capacity as Sheriff of Mobile County, 
Robert R. Williams, Dan C. Alexander, Jr., Norman 
Jr. Berger, Ruth F. Drago, Homer L. Sessions,



7d

individually and in their official capacities as School 
Commissioners of Mobile County, Alabama; the 
Board of School Commissioners of Mobile County, 
Alabama, and Mobile County, Alabama, their agents, 
servants, employees, and successors, are hereby 
ENJO INED from failing to:

(1) Redistrict as set out above.
(2) Make and hold the elections as redistricted.
The defendant Board of School Commissioners is

taxed with the costs, including attorneys’ fees.
Within 30 days from this date, the attorneys for the 

plaintiffs are to file affidavits setting forth their claim 
for attorneys’ fees, including hours worked and hourly 
charges. The defendant School Board Commissioners 
are to be sent a copy of this claim and these defendants 
may object in writing within 15 days.

This court retains jurisdiction for the implementa­
tion of this order.

Done, this the 18th day of January, 1977.

UNITED STATES D ISTRICT JU D G E

U.S. D ISTRICT COURT 
SOU. DIST. ALA.
FILED AND ENTERED THIS THE 
18th DAY OF JANUARY 1977
MINUTE ENTRY NO______
WILLIAM J. O’CONNOR, CLERK 
B Y ____________________

Deputy Clerk



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APPENDIX “E”

Local Acts of Alabama, 1919, p. 73 

AN ACT

To further regulate the public school system of the 
county of Mobile by establishing a Board of 
School Commissioners for Mobile County, of five 
members, in the place and stead of the Board of 
School Commissioners of Mobile County as at 
present constituted; which new board of five 
members shall have the same title and exercise the 
same rights, powers, duties and privileges as are 
now had and exercised by the Board of School 
Commissioners of Mobile County as at present 
constituted; and, to that end, to abolish the Board 
of School Commissioners of Mobile County as 
now constituted.
Section 1. Be it enacted by the Legislature o f  

Alabama, That the Board of School Commissioners of 
Mobile County as now constituted and existing is 
hereby abolished.

Section 2. Be it further enacted that the Superin­
tendent of Education of the State of Alabama, is 
hereby required to appoint as the members of the 
Board of School Commissioners of Mobile County 
which shall exist under this Act, five persons out of and 
from the Board of nine members as at present 
constituted. This said, Superintendent of Education of 
the State of Alabama shall so appoint the members of 
the Board of School Commissioners to hold office 
under this Act, as soon as is reasonably practicable 
after this Act shall have become law. Until the Super­
intendent of Education of the State of Alabama shall 
have so appointed the new Board herein provided for,



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the old Board of School Commissioners of Mobile 
County, being the Board as at present constituted, shall 
continue to hold office and administer the public 
school system in Mobile County.

Section 3. Be it further enacted that the Superinten­
dent of Education of the State of Alabama shall make 
known his appointm ent of the five members who shall 
constitute the Board of School Commissioners of 
Mobile County under this Act, by a notice in writing to 
each of the five members and also by a formal 
proclamation addressed to the Board of School 
Commissioners of Mobile County. At once upon the 
giving, by the said Superintendent of Education of such 
notices, and the prom ulgation of such formal procla­
mation, the Board of School Commissioners of Mobile 
County, as at present constituted, shall forthwith cease 
to exist and the new Board of School Commissioners of 
Mobile County, under this Act, shall forthwith come 
into being.

Section 4. Be it further enacted that in appointing the 
five members of the Board of School Commissioners of 
Mobile County under this Act, here-in-before provided 
for, the Superintendent of Education of the State of 
Alabama, shall divide the said five members into three 
classes which shall be styled Class 1, Class 2, and Class 
3, Class 1 shall consist of two members, Class 2 shall 
consist of two members and Class 3 shall consist of one 
member. The members in Class 1 shall hold office until 
the general election in 1920, and until their successors 
shall have been elected and qualified. The term of office 
of their successors shall be six years. The members in 
Class 2 shall hold office until the general election in 
1922 and until their successors are elected and



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qualified. The term of office of their successors shall be 
six years. The member in Class 3 shall hold office until 
the general election in 1924 and until his successor shall 
be elected a n d . qualified. The term of office of his 
successor shall be six years. So in every second year 
thereafter, at the general election in that year, there 
shall be elected by the people successors to the 
members of the Class whose term of office is then 
expiring. The term of office of the Commissioners 
elected by the people at the general elections under this 
Act, shall be six years.

Section 5. At the general election in 1920 the 
successors to the two members of Class one, and at the 
general election in 1922 the successors to the two 
members of Class two, and at the general election in 
1921, the successors to the one member of Class three, 
shall be elected by the voters of the county at large.

Section 6. Be it further enacted that the Board of 
School Commissioners of Mobile County as estab­
lished under and by this Act shall have the same title as 
the present Board to-wit, Board of School Commis­
sioners of Mobile County, and shall have and exercise 
all the rights, powers, duties and privileges that are now 
held and exercised by the Board of School Com­
missioners of Mobile County as now constituted, the 
whole purpose of this Act being the creating, of a Board 
containing five members in lieu of a Board containing 
nine members, and otherwise not to disturb or in any 
way affect the body of existing law regulating and 
governing the system and conduct of public schools in 
Mobile County, except as expressly set out in this Act 
as necessary to make harmonious the present Act with 
the said body of the existing law.



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Section 7. Be it further enacted, that three members 
shall constitute a quorum  at any meeting of the Board 
of School Commissioners established by and under this 
Act, whether such meeting be a special, general or 
regular meeting, and any and all acts taken by a 
quorum  in the name of the Board, shall be valid and 
binding as fully as if taken at a meeting having present 
the entire membership; provided, however, that no 
business involving a change in the system, rules or 
regulations or affecting the general interest of the 
county shall be transacted except at the regular meeting 
after due notice given, or when a full Board is in 
attendance; and provided further that the provisions of 
already existing law, requiring unanimous action of the 
board, or action by the full Board, in certain stated 
contingencies, are not by this Act changed or altered 
but remain in full force and effect.

Section 8. Be it further enacted that all laws and parts 
of laws in confict herewith are hereby expressly 
repealed.

Approved August 22, 1919.



If

APPENDDCT”
IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 77-1583

LEILA G. BROWN, ET AL.,
Plaintiffs-Appellees,

-versus-
JOHN L. MOORE, ET AL.,

Defendants
ROBERT R. WILLIAMS, ET AL.,

Defendants-Appellants,

Appeal from the United States District Court 
for the Southern District of Alabama

NOTICE OF APPEAL TO THE 
SUPREME COURT OF THE UNITED STATES

Notice is hereby given that the Appellants, Board of 
School Commissioners for the public schools of Mobile 
County, et al, hereby appeal to the Supreme Court of the 
United States from the final order entered in this action on 
June 2, 1978, affirming the judgment of the District Court 
and upholding its injunction.

This appeal is taken pursuant to 28 U.S.C. §1254(2).

SINTZ, PIKE, CAMPBELL & DUKE 
Attorneys for Appellants

BY: / s/ Robert C. Campbell, III
ROBERT C. CAMPBELL, III



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CERTIFICATE O F SERVICE

I certify that a copy of the foregoing Notice of Appeal to 
the United States Supreme Court has been served by 
placing the same in the United States mail with proper 
postage prepaid, addressed to all opposing counsel of 
record as listed below:

Honorable Wade H. McCree, Jr.
Solicitor General of the United States 
Department of Justice 
Washington, D.C. 20530
Edward Still, Esquire 
601 Title Building 
Birmingham, Alabama 35203
Jack Greenberg, Esquire 
Eric Schnapper, Esquire 
10 Columbus Circle 
New York, New York 10019
Armand Derfner, Esquire 
Post Office Box 608 
Charleston, South Carolina 29402
J. U. Blacksher, Esquire 
Larry T. Menefee, Esquire 
1407 Davis Avenue 
Mobile, Alabama 36603

/s/ Robert C. Campbell, III 
COUNSEL FOR 
APPELLANTS