Elston v. Talladega County Board of Education Reply Brief for Appellants

    In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

NOS. 89-7777 and 89-7917

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

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

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

REPLY BRIEF FOR APPELLANTS

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN

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

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

JANELL M. BYRD
1275 K Street, N.W. 
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Counsel for Plaintiff-Appellants



TABLE OF CONTENTS

Page
Table of Contents ......................................... i
Table of Authorities .....................................  ii
ISSUES PRESENTED FOR REVIEW .............................. 1
ARGUMENT ..................................................  2
I. The District Court's Decision Was Clearly Erroneous 

Because The Undisputed Evidence Proves That
Plaintiffs Suffered Discrimination................... 2

II. Defendants Rely Solely On The District Court's
Erroneous Findings, Not The Evidence Presented, In 
Reaching Their Conclusions...........................  12

CONCLUSION 17



TABLE OF AUTHORITIES

Cases Page
*Anderson v. Bessemer City, 470 U.S. 564 (1985) .......... 3,12
*Arlington Heights v. Metropolitan Housing Corp., 429 U.S.

252, 266 (1977)   4,16
Bell v. West Point Municipal Separate School District,

446 F . 2d 1362 (5th Cir. 1971)   13
Lee v. Macon County Board of Education, 448 F.2d 746

(5th Cir. 1971)   13
Movible Offshore, Inc. v. M/V Wilken A. Galgout, 471 F.2d

268, 272 (5th Cir. 1973) .............................. 6
Panduit Corp. v. Dennison Mtg. Co., 810 F.2d 1561 (Fed.

Cir.), cert, denied. 481 U.S. 1052 (1987) .......... 5
*Price Waterhouse v. Hopkins, 490 U.S. __, 104 L.Ed. 2d 268,

109 S. Ct. __ (1989)...................................  16

*Authorities principally relied upon.

ii



In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

Nos. 89-7777 and 89-7917

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

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

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

REPLY BRIEF FOR APPELLANTS

Issues Presented For Review
Pursuant to Eleventh Circuit Rule 28-3 the issues on appeal 

previously set out in plaintiffs' main brief are reiterated here:
1. Whether the district court erred in ruling, with respect 
to Count II under the Fourteenth Amendment, that plaintiffs 
had not by a preponderance of the evidence shown that any of 
the challenged decisions or practices were tainted by 
discriminatory intent.
2. Whether the district erred in ruling, with respect to 
Count III under Title VI of the Civil Rights Act of 1964, and 
the regulations promulgated thereunder, that plaintiffs had 
not established a prima facie case that any of the challenged 
practices had a disparate impact on blacks and that defendants 
had shown legitimate, non-discriminatory reasons for the 
decisions and practices in question.
3. Whether the district court erred in refusing to require 
defendants to provide discovery regarding any matter prior to 
school year 1985-86.



4. Whether the district court erred in dismissing Count I 
of the Complaint for breach of contract on the ground that 
enforcement of an agreement made in a related case could be 
pursued only in that litigation, although the litigation had 
been dismissed.
5. Whether the district court erred in dismissing without 
explanation Count IV of the Complaint challenging as violative 
of the First Amendment the Board of Education's policy 
precluding the recording "in any manner" of its public 
meetings.
6. Whether the district court erred in refusing to exercise 
pendent jurisdiction over Count V under Ala. Code § 36-12-40 
for defendants' refusal to provide plaintiffs with copies of 
documents.
7. Whether the district court erred in denying plaintiffs' 
motion to add Talladega City Board of Education as a party on 
the interdistrict transfer claim and in awarding Talladega 
City Board of Education $5,188 for complying with discovery subpoena.
8. Whether the district court erred in denying admission pro 
hac vice of two attorneys for plaintiffs from the NAACP Legal 
Defense Fund on the ground that if plaintiffs prevailed it 
would place an undue burden on the taxpayers of Talladega 
County.

ARGUMENT
I. THE DISTRICT COURT'S DECISION WAS CLEARLY ERRONEOUS BECAUSE 

THE UNDISPUTED EVIDENCE PROVES THAT PLAINTIFFS SUFFERED 
DISCRIMINATION.
Contrary to defendants' assertion that the facts in this case 

were "hotly contested" (Brief for Appellees at 6) , the vast 
majority of the facts that establish plaintiffs' claim of 
discrimination were not disputed. Many of the facts were 
stipulated, proved by uncontroverted evidence at trial, and much 
of the evidence came from defendants themselves in the form of 
documentary and testimonial evidence. On this record the ultimate 
inquiry whether the "district court's account of the evidence is

2



plausible in light of the record viewed in its entirety," Anderson
v. Bessemer City. 470 U.S. 564 (1985), must be answered no.

Defendants did not dispute the fact that the Talladega County 
Board of Education engaged in a pattern of closing and reducing 
the grade structure at historically black schools. Between 1968 
and 1989, the School Board closed outright half of the historically 
black schools in Talladega County (four out of eight), while 
closing only one of the twelve historically white schools (DX-4; 
PX-14; PX-20-113). Of the four remaining historically black
schools, three were significantly reduced in grade levels (DX-4; 
PX-14). The Board stipulated that schools are beneficial community 
institutions, (Rl-83-1,2 ff 1,2), and has not denied that its 
school closing and grade reduction decisions have 
disproportionately denied the black citizens of Talladega County 
the benefit of schools in their communities —  especially 
integrated schools.

Not only has the burden of school closings and reassignments 
fallen disproportionately on the black community, but the benefits 
of new school construction and improvements have generally accrued 
to the white community. Uncontested testimony established that the 
School Board closed the Phyllis Wheatley School, which was located 
in a predominately black community, only to build its replacement, 
the Childersburg Middle School, in a predominately white community 
(R3 4-548 [Woods]).

It is similarly undisputed that the same pattern was followed 
with the newly constructed consolidated elementary school, the

3



location of which plaintiffs challenged in this action. The Board 
decided to build the new school at the Idalia School site, located 
in a predominately white community, instead of the Training School 
site, located in a predominantly black community (R2-32 [Elston]; 
R2-117 [Jones]).

In Arlington Heights v. Metropolitan Housing Corp.. 429 U.S.
252, 266 (1977), the Supreme Court stated that

[s]ometimes a clear pattern, unexplainable on grounds 
other than race, emerges from the effect of the state 
action even when the governing legislation appears 
neutral on its face. . . . The evidentiary inquiry is
then relatively easy, (citations omitted.)
Here the pattern is stark and strongly supports a finding of 

intentional discrimination.
Prior to trial, the Board proffered two justifications for the 

site selection: lack of adequate land for expansion at the Training 
School site and the need for existing space at the Training School 
in order to renovate that facility to continue serving grades 7- 
12 (Rl-83-25 f 16). The plaintiffs showed at trial in uncontested 
testimony that property adjacent to the Training School owned by 
the Dumas family was available to the Board (R3-477-78 [Dumas]). 
Despite this, the district court found both that (1) "[t]here is 
property adjacent to the Talladega County Training School which 
• • • would have been suitable for expansion. This includes property 
owned by members of the Dumas family and the Lawson family,"1 (Rl- 
93-7 K 19) (emphasis added), and (2) "adequate land consisting of

1Mr. Dumas testified that his property was "slightly over 
forty acres" (R4-476 [Dumas]).

4



a minimum of 15 acres was not readily available," (Rl-93-17-18 f 
16) .2 Clearly, these findings are mutually exclusive and one of 
them, by definition, is incorrect. Contradictory findings are 
clearly erroneous. Here, there was absolutely no evidence 
presented that contradicted the testimony of Mr. Dumas or the 
letter from Mr. Stamps to Dr. Grissett confirming the availability 
of the Dumas property (PX-48). Thus the Board's asserted 
justification was shown to be a pretext. To the extent that the 
district court relied on its contrary finding to support the 
ultimate conclusion of no discrimination, the court committed clear 
error. See Panduit Coro, v. Dennison Mfg. Co.. 810 F.2d 1561 (Fed. 
Cir.), cert, denied. 481 U.S. 1052 (1987).3 *

The second justification offered by the Board, the need for 
space at the Training School in order to renovate the facility and 
to enhance its 7-12 program, is inadequate on its face. Even if 
all of the existing space at the Training School was needed for the 
7-12 program,A this in itself still would not bar further expansion

defendants suggest, surprisingly, that these findings are 
not contradictory. See Brief of Appellees at 6.

defendants incorrectly assert that "plaintiffs fail to 
acknowledge" a district court finding regarding the alleged 
unavailability of the Lawson property, which is also adjacent to 
the Training School. Brief of Appellees at 6. Plaintiffs fully 
cited and quoted the Lawson testimony, (see Brief for Appellants 
at 19-20 n.28), but the district court's contrary finding on the 
reasonableness of the Board's "assumption" about the availability 
of the Lawson property is neither substantiated by the record nor 
critical in light of the availability of the Dumas property, a fact 
that defendants fail to acknowledge.

4This is doubtful given the gross underutilization of space 
at the Training School, compared to the other schools in the 
County. See Brief for Appellants at n.59.

5



of the school, nor would it prevent the construction of the 
consolidated elementary school at the same site, in a separate 
building. Again, the School Board's rationale on its face was 
pretextual, and the district court's finding to the contrary was 
illogical and clearly erroneous. See Movible Offshore. Inc, v. M/V 
Wilken A. Galcrout. 471 F.2d 268, 272 (5th Cir. 1973) (reviewing 
court should look to see if the findings "clearly consist of 
illogical or improper inferences") .

Plaintiffs also showed at trial that building a new school at 
a separate location was uneconomical as compared with renovating 
and enlarging the existing Training School facility.5 There were 
several pieces of evidence that supported this conclusion. First, 
the Board's own assertions in its petition to construct a new 
middle school to replace the Phyllis Wheatley Middle School, touted 
the substantial economic benefits of consolidation of facilities 
(Rl-95 Attach. B. at 5; R2-245 [Grissett]. The Board's President, 
Dr. Larry Morris, agreed that small schools were economically 
inefficient and educationally unsound (R3-467-68). It is 
undisputed that the Training School will be quite small, as 
currently proposed by defendants.

5It was not necessary for plaintiffs to show that the plan 
itself was unreasonable from an economic standpoint in order to 
prevail. As the district court properly recognized, placing a 
separate consolidated elementary school at the Training School site 
would not have cost any more than it would at the Idalia site (Rl- 
93-4 t 8). The economic inefficiencies of defendants' plan, 
however, simply serve to underscore the lack of a rational and 
legitimate justification for defendants' actions.

6



Grades 1987-88 1988-896
7-9 144 140
10-12 158 139

Enrollments for school years 1987-88 and 1988-89, were below the 
Alabama State Board of Education's minimum requirement for 
"approved educational centers" (PX-19-10). The State Board 
requires 175 students in grades 7-9 and 175 in grades 10-12 (id.). 
Defendants have not disputed any of this evidence.

Further evidence of the inefficiency and thus irrationality 
of defendants' plan is the fact that after the trial they reduced 
the attendance zone for the Training School so that even fewer 
students will be in assigned to the Training School; they rejected 
plaintiffs' urging to make the zone co-extensive with the Stemley 
Bridge Road zone, which would have reduced the extreme racial 
isolation at the Training School. As no renovation has yet begun 
on the school, it appears that plaintiffs' original concern that 
the school was slated for closure may be coming true.7

6PX-14.
7Plaintiffs are filing herewith a Motion to Supplement the 

Record on Appeal or In the Alternative for a Limited Remand to the 
District Court, to allow this new and highly probative evidence to 
be considered by the Court. As explained in plaintiffs' main 
brief, plaintiffs sought to expand the attendance zone for grades 
7-12 at the Training School to make it co-extensive with the zone 
for the new consolidated elementary school —  Stemley Bridge Road 
Elementary School. (See Brief for Appellants at 10) . Despite some 
testimony at trial from Dr. Grissett that would indicate an 
expansion of the zone and an increase in the attendance and 
integration of the Training School, (DX-30 [red dashed line]), the 
Board has since the trial voted to reduce the attendance zone for 
the Training School by removing part of the southern end of the 
zone, and refused to extend the northern end of the zone to become 
co-extensive with the Stemley Bridge Road school zone.

7



In addition to the substantial undisputed evidence of economic 
inefficiency referenced above, plaintiffs' expert, Dr. Thomas Mason 
testified that expanding and renovating the Training School to 
accommodate 550 elementary students, instead of building an 
entirely new school and separately renovating the Training School, 
would have saved the County approximately $1,000,000 (PX-52; R3- 
384 [Mason]).8 He also confirmed the long-term economic benefits

8Using the contract price for the Stemley Bridge Road School 
of $2,591,511 (PX-52 [Item C]) , plus conservative estimates of 
other project costs (fees, administration, movable furniture and 
equipment) of $388,726 (PX-52 [Item E]), Dr. Mason derived a total 
project cost of $ 2,980,237 (PX-52 [Item F]), for the new school. 
The total project cost of the construction of the new school 
($2,980,237), plus the $500,000 slated for remodeling the Training 
School brought the School Board's total project costs to $3,480,237 (PX-52 [Item J]).

To compare the cost of the Board's plan to a plan that would 
have expanded the elementary capacity at the Training School site 
to 550, Dr. Mason took the following steps. He used the current 
elementary capacity at the Training School of 270 (taken from PX- 
20, permanent facilities only) and to make the estimate 
conservative assumed an existing elementary capacity of only 200 
(PX-52) . Assuming existing capacity for 200 would require the 
building of additional capacity at the Training School for 350 
students (PX-52). Using the per student costs at the new school 
of $5,418 —  derived by dividing the $2.9 million total 
construction cost for the new school by the student capacity at the 
new school of 550 (PX-52 [Item G]) [which assumes a proration of 
all the facilities included in the new school, e.g., a media 
center, cafetorium, classrooms etc... R3-427-29 [Mason])] —  Dr. 
Mason computed the cost of new construction to expand the Training 
School for 350 additional elementary students by multiplying the 
$5,419 per student cost by 350, equaling $1,896,300 (PX-52 [Item 
K]). The total cost of the expansion ($1,896,300) plus the planned 
$500,000 renovation of the Training School equals $2,396,300 (PX- 
52 [Item M]). The difference between the Board's plan and a plan 
that would have expanded and remodeled the Training School is 
$1,083,937 (PX-52 [Item N]).

During cross examination, defense counsel attempted to 
challenge Dr. Mason's conclusions by noting that there would be 
fewer square feet in the combined school than in the two schools 
separately (defense counsel's actual estimation is 11,000 short

8



from consolidation (R3-426 [Mason]).9

because the net square feet per student [65] was used instead of 
the gross square feet [96])(R3-422 [Mason]). As Dr. Mason 
explained, however, there generally would be a significant savings 
from the consolidation of the facilities because general purpose 
areas would not have to be duplicated (R3-385-86; 425; 428 
[Mason]).

9Contrary to defendants representation that Dr. Mason's 
testified that the Board's plan overall, including new construction 
at Stemley Bridge Road, was good a one, (Brief of Appellees at 7 
and at 11), Dr. Mason's "good plan" language referred only to the 
plans for the remodeling of the Training School.

THE COURT: What's a good plan?
THE WITNESS: That they've got a good start on remodeling for 

a K through —  for a seven through twelve junior/senior high school 
at the Talladega County Training School site. The plan I saw this 
morning looks like a pretty good plan. It's a beginning. I don't 
think it is going to do the whole job as we've already mentioned that."
R3-418 [Mason]. As a facilities expert, the comment clearly 
related to the lay out of the facility, re-wiring, re-lighting and 
those aspects of a renovation plan, not the racial or economic 
implications of the plan as suggested by defendants.

Defendants also refer to "incomplete underlying assumptions," 
(Brief for Appellees at 7), to suggest that Dr. Mason's analysis 
was not sound because Dr. Mason assumed that the existing 
elementary space at the Training School would be available. What 
Dr. Mason learned when defendants finally produced the renovation 
plans for the Training School on the second day of trial was that 
the plan called for converting the existing elementary space to a 
media center. He forthrightly admitted that he had not considered 
this in his calculations as he could not have been aware of it.

Dr. Mason noted, however, the existence of other structures 
at the Training School site that could be used for the media 
center: "the preliminary plans do not say what the other buildings 
that are not so active are going to be used for . . .  I expect I 
would have said probably is that let's look at the cannery and see 
if that could be a media center or a trade-off, that sort of thing" 
(R3-419 [Mason]). Indeed, given the existence of several other 
structures on the site (PX-20), including an existing library, 
there is no reason to assume that alternative space would not have 
been available for the media center. In addition, Dr. Mason's 
calculations for expansion included funds for media center space. 
If that space was not needed in the area of the expansion because

9



Defendants attempt to pass off as fact the district court's 
erroneous finding that "several historically white schools are not 
as far along as Talladega County Training School in the renovation 
plans" (Rl-93-2 K 2; Brief of Appellees at 22).* 10 Defendants cite 
no evidence to substantiate this assertion; they merely restate the 
district court's erroneous conclusion.

There is no dispute that after the closing of one historically 
black school, Hannah Mallory Elementary, a majority of the students 
(all of whom were black) were reassigned to the Training School 
through the use of a non-contiguous K-6 zone rather than assigning 
the majority of these students to either of two racially mixed 
schools (R3-493 [Romane]; PX-14; Rl-93-6 % 13). Not only did this 
assignment pattern create the only non-contiguous zone in the

of where defendants were placing the media center in the 
renovation, the funds allocated as part of Dr. Mason's expansion 
plans would be available to fund replacements for the classrooms 
the Board was converting in its renovation (see R3-428 [Mason]). 
In sum, even though the Board's renovation plans were not exactly 
the same as the assumptions Dr. Mason used in his calculations, Dr. 
Mason showed that the analysis was still sound.

10At the start of Dr. Grissett's testimony, he stated that the 
Training School was not last on the list of schools to be renovated 
(R2r205 [Grissett]). Later in his testimony, however, Dr. Grissett 
was asked about the status of each individual renovation project 
(R2-239-41 [Grissett]). This portion of the testimony ended with 
the following exchange:

Q: With the exception of Talladega County Training School
and perhaps a transportation shop, you now have 
renovations constructions underway at all the sites for 
which you have current funds?

A: That's essentially correct
(R2-241 [Grissett]). Despite the passage of almost a year since 
the trial, still no renovation work has begun at the Training 
School.

10



entire system (PX-16); unsurprisingly it served to reinforce racial 
segregation in the system and was accomplished by overcrowding the 
Training School to the point that portable classrooms were required 
(R3-493—94 [Romane]; Rl-93-6 f 15) . That these actions violated 
the court order preventing the use of portable classrooms in this 
manner, defendants cannot deny.

It is also undisputed that significant numbers of white 
children assigned to the County schools attend the public schools 
of Talladega City in violation of the very court order that the 
Talladega County Board of Education agreed to comply with as a 
condition of dismissal in 1985. This has allowed white students 
to avoid historically black institutions, and increased the duality 
of the school system (PX-32; R2-151-73 [Thompson]). In spite of 
their awareness of this problem, the County Board and 
Superintendent have never done anything to stop it (R2-257 
[Grissett]; Rl-83-10  ̂ 48; Rl-93-11 f 31).

In contrast, when actions have threatened to result in the 
loss of white students from majority-white schools, the Board has 
taken strong action. When the Oxford City School System proposed 
the annexation of a predominantly white portion of the Talladega 
County School District in the early 1980's, the Board went to 
federal court to try to stop the loss of these students (Rl-83-10 
f 50; Rl—93 —12 f 41) . In addition, when the City of Sylacauga 
sought to annex portions of the Talladega system which would have 
resulted in the loss of significant numbers of white students from 
predominantly white schools, the Board sought the assistance of the

11



Justice Department in an effort to block the annexation (Rl-83-10 
1f 52? PX-31) . Defendants made no attempt at trial to justify the 
contrast in their action in these two circumstances.

II. THE DEFENDANTS RELY SOLELY ON THE DISTRICT COURT'S ERRONEOUS
FINDINGS, NOT THE EVIDENCE PRESENTED, IN REACHING THEIR
CONCLUSIONS.
Defendants repeatedly restate the district court's findings 

and conclusions without citing any substantiating facts or 
evidence. Because this appeal directly challenges many of the 
district court's findings as erroneous, defendants exclusive 
reliance on them, without support of any documentary or testimonial 
evidence is plainly inadequate and simply underscores the fact that 
a review of the real evidence leaves a clear impression that a 
mistake has been committed. Anderson v. Bessemer City. 470 U.S. 
564, 573 (1985).

Defendants attempt to perpetuate the district court's 
mischaracterization of plaintiffs' claim by relying on a clear 
error by the district court. They assert that plaintiffs' are 
attempting to reestablish the dual school system by challenging 
the School Board's pattern of closing historically black schools. 
(Brief of Appellees at 16) . This is indeed a gross
mischaracterization of the claim,11 as is made clear by plaintiffs' 
efforts to expand the attendance zone for the Training School to

“When defendants and the district court initially made this 
error, plaintiffs corrected it (See Motion of Plaintiffs to Alter 
or Amend Judgment, Rl-14 [legal memorandum filed therewith]). The 
district court apparently understood and has not repeated the 
error; defendants continue to mischaracterize the claim.

12



include more white students and to enforce court orders that would 
stop white flight from historically black schools.12 (See R2-44 
[Elston]) .13

Not a shred of evidence is cited to support the contention 
that the site selection did not have a disparate impact on blacks. 
As discussed supra. the record unmistakably reflects the fact that 
this site selection decision was part of a discriminatory pattern 
of taking schools and educational resources out of black 
neighborhoods and relocating them to white neighborhoods.

Defendants* attempt to cloak themselves in credibility 
findings is unavailing. The bulk of the evidence supporting 
plaintiffs' claims comes from stipulated facts, documents produced 
by defendants or as to which they raised no objection, and 
testimony by defendants. The only statement by the Judge that 
appears to reflect negatively on credibility arose during a limited 
exchange with Mr. Elston.14 However, most of the facts as to which

12Claims challenging racially discriminatory school closings 
have been repeatedly recognized. See, e.g. . Bell v. West Point 
Municipal Separate School District. 446 F.2d 1362 (5th Cir. 1971) 
(struck down closing of historically black schools because action 
taken out of fear that whites would not attend these schools); Lee 
v. Macon County Board of Education. 448 F.2d 746 (5th Cir. 1971) 
(closing historically black schools and dispersing their students 
among formerly white schools not an acceptable method of 
desegregation).

“ Defendants similarly mischaracterize plaintiff's first 
amendment claim, (Brief for Appellees at 32) . The claim is a 
direct challenge to the Board rule denying the right to record in 
any manner the Board's public meetings.

14The comments of the judge that defendants highlight from an 
exchange at sidebar, arose regarding an answer which the plaintiff, 
Augustus Elston, gave during direct examination. Plaintiffs'

13



Mr. Elston testified were either stipulated to by defendants or 
proved by supporting documents as to which defendants made no 
objection. The district court specifically found plaintiffs' 
witness Janice Truss credible15 despite the fact that her testimony 
directly contradicted that of Dr. Grissett regarding his attendance

counsel was attempting to establish evidence to counter defendants' 
repeated assertion that the Board strictly enforced attendance 
zones within the County system (Rl-21 «J2 (c) ; Affidavit of Lance 
Grissett (Rl-24). Because the County kept no records on zone­
jumping within its system, plaintiffs' counsel asked Mr. Elston if 
he was personally aware of students attending school out-of-zone 
(R2-39 [Elston]). Mr. Elston responded that he had seen school 
buses picking up children out-of-zone. The district court 
interceded at this point and asked for the names of the people 
involved, which Mr. Elston provided (R2-39-40 [Elston]). On cross- 
examination, Mr. Elston was asked for the race of the students 
involved (R2-104). When he responded that these children were 
black, the judge interjected with the statements set out in 
defendants' brief (Brief of Appellees at 10). At no time in this 
litigation have plaintiffs ever maintained that all the students 
attending school out of zone were white, see PX-32, and there is 
nothing in the context of the original questions and Mr. Elston's 
responses that would indicate that plaintiffs were suggesting that 
this particular out-of-zone attendance was by white students. 
Plaintiffs offered this testimony and Exhibit PX-11 simply to point 
out that the assertion that the County strictly enforced the 
attendance zones was not true given that the school district's own 
buses were used to facilitate out-of-zone attendance (PX-11; Rl- 
93-11 f 36). The judge's attack on Mr. Elston for not assuming a 
question not posed by the judge himself was grossly unfair, as 
plaintiffs' counsel pointed out (R2-105-07).

Defendants also criticize Mr. Elston by stating that he had 
not attended many school board meetings. Brief of Appellees at 9. 
Defendants do not acknowledge that the Concerned Citizens of 
Talladega County Training High School, of which this plaintiff is 
a member, designated a member to regularly attend the board 
meetings and report back to the membership, and she did so (R2- 
11, 50 [Elston]).

15The district court praised Ms. Truss for the credibility of 
her testimony (R3-453-54 [Truss]).

14



at PTA meetings (R3-444-45 [Truss]; R3-312 [Grissett]).16 In 
addition, the district court's factual findings clearly credit the 
testimony of many of plaintiffs' witnesses, including Mr. Elston 
(See, e.g.. Rl-93 10, 15, 19, 22, 23, 24, 25, 30).

Finally, defendants portray the district court's finding that 
"[t]he Board's decision to locate the new school at a different 
site from [the Training School] was sound from an educational 
viewpoint, and did not have a racially discriminatory motive or 
disparate impact on blacks" as a fact despite the overwhelming 
evidence to the contrary (Brief of Appellees at 25) . The allegedly 
"sound" rationale for the site selection decision —  that for 
reasons of educational policy the Board did not want elementary and 
secondary students on the same site —  has been shown to be nothing 
more than a post hoc rationalization17 which is a pretext for

16The stipulated facts also contradict Dr. Grissett's 
testimony. Defendants stipulated that "[t]he Superintendent of the 
School System has not attended a PTA meeting at the Talladega 
County Training School to inform parents of the school board's 
plans with respect to school closings" (Rl-83-9 f 41) . Yet in 
response to a question from the court regarding dissemination of 
information on the school closing and renovation plan, Dr. Grissett 
testified, "I've been to PTA meetings at . . . [the Training School]" 
for that purpose (R3-312 [Grissett]).

17The Board did not use this rationalization as part of its 
decision making on the site selection (See Brief of Appellants at 
42 n .56); nor had they even devised this justification before the 
start of the trial. Number 16 of defendants' proposed factual findings states:

There were two principal problems with locating the new 
larger elementary school ... at [the Training School]:
(1) adequate land was not available, (2) the Board needs 
the existing space for the enhanced 7-12 program it now 
has planned.

(Rl-83-25 if 16.) No mention was made before trial of any supposed
15



discrimination. The pretext was made clear by the fact that the 
Board relied upon an opposite and contradictory rationale in 
closing the Phyllis Wheatley School and planning a comprehensive 
K-12 facility at site of construction of the new middle school 
facility in Childersburg.18 In Arlington Heights v. Metropolitan 
Housing Corp.. 429 U.S. at 267, the Supreme Court ruled that 
"[s]ubstantive departures too may be relevant, particularly if the 
factors usually considered important by the decisionmaker strongly 
favor a decision contrary to the one reached." Here the pro­
consolidation position taken by the Board in 1984 runs contrary to 
the Board's plan for separate facilities at separate locations now, 
making evident the pretextual nature of the Board's proffered 
rationale. The one constant in the Board's actions is the result 
—  closing schools in black communities and constructing new 
schools in white communities.

educational rationale. As the Supreme Court stated in Price
Waterhouse v. Hopkins. 490 U.S. ___, 104 L.Ed.2d 268, 109 S. Ct.
___ (1989), the defendant may not prevail "by offering a legitimate
and sufficient reason for its decision if that reason did not 
motivate it at the time of the decision." 104 L.Ed.2d at 289. 
Here^ the district court's heavy reliance on a post hoc 
justification, particularly this pretextual one, is clearly 
erroneous and constitutes reversible error.

18The Board also operates three other K-12 schools (see Brief 
for Appellants at 43).

16



CONCLUSION
For the foregoing reasons, the judgment of the district court 

should be reversed.

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN

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

Respectfully submitted,

C1E0PHUS THOMAS, JR. 
P.0. Box 2303 
Anniston, AL 36202 
(205) 236-1240

JANELL M. BYRD
1275 K Street, N.W., # 301 
Washington, D.C. 20005 
(202) 682-1300

Counsel for Plaintiffs-Appellants

17



Certificate of Service
I hereby certify that on this "22*Aay of June, 1990, two 

copies of the Reply Brief for Appellants were served by first 
class, United States mail, postage pre-paid, on defendants in this 
action, addressed as follows:

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

One copy of the Brief was served on non-party Talladega City Board 
of Education, addressed as follows:

Stan Thornton, Esq.
Wooton Thornton, Carpenter, 

& Lazenby 
P.O. Drawer 2777 
Talladega, Alabama 35160

O 'Brien

18