Stout v. Jefferson County Board of Education Emergency Motion for Injunction Pending Appeal

    In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 87-

LINDA STOUT, et al.,
Plaintiffs-Appellants,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor- 
Appellee,

v.
JEFFERSON COUNTY BOARD OF EDUCATION, et al.,

Defendants-Appellees.

EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL

Appellants LINDA STOUT, et al, respectfully pray that upon 
consideration of this motion and any response[s] thereto which 
may be filed in such time as the Court may direct, as well as \ le 
papers from the district court proceedings submitted herewith, 
this Court issue an injunction pending disposition of this appeal 
on the-merits which requires the appellee JEFFERSON COUNTY BOARD 
OF EDUCATION to provide public educational services to all school- 
children now or hereafter residing in the areas of the "Dolomite" 
community of Jefferson County that are eligible to become annexed

-'-A Certificate of Interested Persons is appended to this 
Motion.



to the City of Birmingham, Alabama upon pre-clearance by the Attor­
ney General under § 5 of the Voting Rights Act of 1965, 42 U.S.C.
§ 1973c.

Appellants respectfully seek emergency consideration of this 
request by the Court. Absent the issuance of the relief sought 
herein, members of the class of black students residing in the 
said areas of the "Dolomite" community will be excluded from the 
Jefferson County public schools which they have previously attended 
(through the conclusion of the 1986-87 school year) unless they 
can afford tuition in excess of $450 per year, and they will be 
required to attend the public schools of the City of Birmingham, 
Alabama. Classes for the 1987-88 school year will begin on August 
31, 1987.

In support of their request, appellants would respectfully 
show the Court as follows: 1

1. This litigation to desegregate th» public schools of Jef­
ferson County, Alabama, has a lengthy hisiory. In proceedings 
particularly relevant to the current coniroversy, the Fifth Circuit 
in 1971 vacated and remanded for implementation of a plan consistent 
with Swann v. Charlotte-Mecklenbura Boari of Education. 402 U.S.
1 (1971) and instructed that "[t]he district court shall include 
within its order a direction to any school boards created since 
the filing of the original action in this cause to submit to the 
plan to be approved by the district court." Stout v. Jefferson 
County Board of Education. 448 F.2d 403, 404 n.l (5th Cir. 1971).

2



2. This instruction was necessary because a number of all- 
white or virtually all-white cities within Jefferson County which 
had not previously sought to operate separate school systems 
attempted to do so when meaningful pupil desegregation began to be 
reguired. One such municipality ultimately enjoined from operating 
a separate system (because it refused to assign students as part
of a countywide plan approved by the federal court) was Pleasant 
Grove, Alabama. See Stout v. Jefferson County Board of Education. 
466 F.2d 1213, 1214-15 (5th Cir. 1972), cert, denied. 411 U.S.
930 (1973); City of Pleasant Grove v. United States. 568 F. Supp. 
1455, 1457 (D.D.C. 1983); id.. 623 F. Supp. 782, 787-88 (D.D.C. 
1985), aff'd ___ U.S. ___, 93 L.Ed. 2d 866 (1987).

3. Pursuant to the desegregation plan approved by the district 
court in 1972, as modified in respects not material to this contro­
versy, students residing in the predominantly black, unincorporated 
area of Jefferson County, Alabama known as "Dolomite" have been 
assigned to the "Pleasant Grove Attendance Area" of the county 
school system, and Jiore specifically in the 1986-87 school year
to Pleasant Grove E. ementary School for grades 1-3, Woodward 
Elementary School f-.r grades 4-6, and to Pleasant Grove High School 
for grades 7-12. (See Plaintiffs' Exhibit 1 & Defendants' Exhibit 
1 introduced at August 17, 1987 hearing on Motion for Temporary 
Restraining Order.2)

2With the agreement of counsel, the district court pursuant 
to F.R. Civ. P. 65(a)(2) treated the hearing on the request for a 
temporary restraining order as the hearing on the motion for pre­
liminary injunction and consolidated it with the trial on the

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4. The Dolomite community, whose children attended schools 
in the "Pleasant Grove Attendance Area" pursuant to the district 
court's orders, attempted to obtain necessary governmental services 
by petitioning for annexation to the City of Pleasant Grove. The 
City of Pleasant Grove refused to annex the area and terminated 
fire and paramedic protection to the Dolomite community which it 
had previously provided. City of Pleasant Grove v. United States. 
568 F. Supp. 1457, text at n.9; id.. 623 F. Supp. 783, text at 
n.3; id.. 93 L. Ed. 2d 866 n.4.

5. The refusal of the City of Pleasant Grove to annex nearby
predominantly black unincorporated areas of Jefferson County, 
including the Dolomite community, while pursuing annexation of 
nearby predominantly white areas, has been found to violate § 5 
of the Voting Rights Act, 42 U.S.C. § 1973c, because it was 
racially motivated. City of Pleasant Grove v. United States. 623 
F. Supp. at 788, aff'd ___ U.S. ___, 93 L. Ed. 2d 866 (1987).

6. The Dolomite community also attempted to annex to another 
predominantly white municipality in Jefferson County, Hueytown,

merits of plaintiffs' motion for further relief. (See Transcript 
of Oral Findings of Fact and Conclusions of Law Before Hon. Sam 
C. Pointer, Jr., p. 12.)

Pursuant to Eleventh Circuit Rule 27-l(b)(2), copies of the 
district court papers are being submitted along with this motion. 
Plaintiffs' moving papers, relevant exhibits, and the transcript 
of the district court's oral Findings of Fact and Conclusions of 
Law accompany this motion. The Minute Entry recording the district 
court's judgment is being forwarded separately from co-counsel in 
Montgomery. Counsel for appellants has ordered the complete tran­
script from the court reporter.

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without success. Thereafter, following a major fire emergency in 
which five persons were killed, two separate areas of Dolomite 
petitioned for annexation to the City of Birmingham in 1987. On 
April 10, 1987 the Judge of Probate of Jefferson County, Alabama 
entered an Order of Annexation with respect to one such area, 
following an annexation election held March 21, 1987 pursuant to 
§ 11-42-2 of the 1975 Code of Alabama. On June 2, 1987, by 
Ordinance No. 87-88, the City of Birmingham annexed the second 
area. (See Plaintiffs' Exhibits 4 & 5 introduced at August 17,
1987 hearing on Motion for Temporary Restraining Order.)

7. On July 15, 1987, the City of Birmingham submitted these 
and three other .annexations to the United States Department of 
Justice for pre-clearance under § 5 of the Voting Rights Act.
(See Plaintiffs' Exhibit 4 introduced at August 17, 1987 hearing.) 
The Attorney General has not yet acted upon the Dolomite submis­
sions. Under the statute, the Attorney General is not required 
to act until 60 days after receipt of the submission (or at the 
least, in this case, until approximately September 15, 1987), and 
under regulations promulgated to implement § 5, he may request 
further information, the receipt of which will trigger a new 60- 
day period for determination. See 28 C.F.R. §§ 51.25(p), 51.35(a), 
51.37 (1986); Georgia v. United States. 411 U.S. 526, 538-41 (1973).

8. Despite the fact that the Attorney General has not yet 
acted, the Jefferson County Board of Education notified the parents 
of students residing in the two areas of Dolomite referred to

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above that they would not be admitted to Jefferson County public 
schools for the 1987-88 school year without payment of tuition 
but must attend schools in the City of Birmingham school system.
(See attachment to Plaintiffs' Exhibit 12 introduced at August 17 
hearing [affidavit of Jesse Vann, Sr.].)

9. On August 12, following unsuccessful attempts to resolve 
the matter without litigation (see Affidavit of Richard Arrington, 
Jr. in Support of Plaintiffs' Motion for Temporary Restraining 
Order, filed August 12, 1987) plaintiffs filed a Motion for Further 
Relief seeking preliminary and permanent injunctive relief, and a 
Motion for Temporary Restraining Order on August 12, 1987.3 A 
hearing was held before the Hon. Sam C. Pointer, Jr., Chief Judge 
of the United States District Court for the Northern District of 
Alabama, on August 17, 1987, which became the hearing on the merits 
of plaintiffs' Motion for Further Relief..4

9. The district court found, based upon the uncontested evi­
dence offered by the Jefferson County Board of Education, that if 
the students residing in the Dolomite areas refe rred to above are 
removed from the Jefferson County school system —  and in particular 
from the Pleasant Grove Elementary, Woodward Elenentary, and 
Pleasant Grove High, schools —  there will be

a significant effect on the school populations 
of the three schools from which these students

3The City of Birmingham, Alabama appeared as amicus curiae 
in the district court in support of plaintiffs' request for relief.

4See supra note 2.
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would be drawn. The ratio of white to black 
studenjts at these three schools in the Jef­
ferson County system as of the end of the 
last school year ranged from seventy-one percent 
white to eighty percent white. As a result 
of the annexation and loss of these students, 
those figures for the next year, absent transfer 
with tuition payments, would be in the range 
of ninety-four to ninety-seven percent white.
There is then a potential impact on the deseg­
regation plan and efforts and activities of 
the Jefferson County school system.

(Oral Findings of Fact and Conclusion of Law Before Hon. Sam C.
Pointer, Jr., at pp. 5-6.)

10. The district court refused to enjoin the Jefferson County 
Board of Education to continue educating the students from the 
two areas of the Dolomite community "until such time as the Jef­
ferson County School System is judicially declared to be 'unitary' 
and the 1985 and 1987 annexations of the Dolomite Community into 
Birmingham, Alabama have been 'pre-cleared' by the United States 
Attorney General"5 because the Jefferson County Board of Educa­
tion did not cause the annexations (Oral Findings, p. 6), because 
the policy which the Jefferson County Board is applying has been 
consistently applied to prior annexations (Oral Findings, p. 8), 
and because the court wished to treat the black students in these 
areas in the same fashion as it had when responding to requests 
by white students for exemption from assignment changes (Oral

5See Plaintiffs' Motion for Further Relief filed August 
12, 1987, at pp. 1-2.

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Findings, pp. 3-4).6 Plaintiffs filed their Notice of Appeal to 
this Court on August 21, 1987.

11. Under these circumstances, plaintiffs-appellants are 
entitled to relief pending plenary adjudication of their appeal, 
because (a) they are likely to succeed on the merits; (b) they 
will suffer irreparable injury if relief is not granted; (c) the 
Jefferson County Board of Education will suffer no harm if relief 
is granted; and (d) the public interest in effectuating plaintiffs' 
constitutional rights strongly supports issuance of the relief.
See, e.q.. Jean v. Nelson. 683 F.2d 1311 (11th Cir. 1982)(per 
curiam); Eleventh Circuit Rule 27-l(b)(l):.

6Although the district court stated that he had
as an individual judge, since 1971 had to face similar 
issues over the years. Students displaced by changes 
in attendance zones, either by court order or as a result 
of annexation, have periodically come before this Court 
for special relief. They have asserted, and this Court 
has certainly understood, that the displacement of stu­
dents from the schools with which they have been 
associated, from their teachers, their classmates and 
from their activities, certainly has a disruptive effect 
on the educational process, and certainly on the emotional 
health of students. To have this matter come up in 
1987 is no less difficult than it was in 1971 or '72 or 
'73. Most of the earlier requests for special relief 
came from white children. More of the later requests 
have come from black children and their parents

(Oral Findings, pp. 3-4), a review of the Docket Entries fails to 
disclose that the court has been faced with repeated requests 
over the years, and especially during the last decade. In any 
event, there is a considerable difference between the requests 
from white students and parents in the early 1970's, who sought 
to avoid attending integrated schools, and the relief sought by 
the Dolomite students and their parents, who wish to continue to 
attend integrated schools.

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(a) Appellants are likely to prevail on the merits for
two reasons. First, until the annexations have been pre­
cleared by the Attorney General or the City of Birmingham 
obtains a declaratory judgment from the United States District 
Court for the District of Columbia (which it has not sought), 
they may not be implemented. 42 U.S.C. § 1973c. This statu­
tory mandate is not limited to matters such as allowing resi­
dents of the areas in question to vote in Birmingham city 
elections but extends to policies of the Jefferson County 
Board of Education purporting to recognize the annexations 
prior to their pre-clearance. Cf. Dougherty County Board of 
Education v. White. 439 U.S. 32 (1978). As the request for 
injunctive relief in plaintiffs' Motion for Further Relief 
recognized, it is plainly illegal for the Jefferson County 
Board of Education or any other agency of the State of Alabama 
to give effect to the annexations until they are pre-cleared 
or approved by a three-judge district court in the District 
of Columbia.

Second, the substantial effect of withdrawing the Dolo­
mite students from the Jefferson County schools which they 
have attended, up until the end of the 1986-87 school year, 
is uncontested and was specifically found by the district 
court. Permitting this withdrawal will in effect recreate 
the situation which the City of Pleasant Grove sought to 
establish in 1971 through secession from the Jefferson County 
system (that is, virtually all-white schools serving its

9



students). Because the Jefferson County system is not yet 
unitary. Brown v. Board of Education of Bessemer. 808 F.2d 
1445, 1446 (11th Cir. 1987), the district court's authority 
to require that the Jefferson County school system continue 
to educate the students in the Dolomite area is not dependent 
upon a finding that the Jefferson County Board of Education 
is responsible for the annexations; the negative effect of 
the annexations upon the status of desegregation in the county 
schools (and particularly those in the Pleasant Grove Attend­
ance Area) is sufficient. Id. at 1447-49.

Relief similar to that which was sought below, and is 
now sought here, was granted last year in Brown v. Board of 
Education of Bessemer following annexation of areas of Jef­
ferson County, Alabama into the City of Bessemer. The court 
below emphasized that of the two annexation parcels in the 
Bessemer case, only students who resided in the one in which 
a county school building was located were required to be con­
tinued in the Jefferson County school system (OraL Findings, 
pp. 7-8). That was not the basis for the distric.; court's 
different treatment of the two parcels in the Bes semer liti­
gation, however. There the court distinguished tie two situ­
ations based upon the effect on school deseareaavion in both 
the Bessemer and Jefferson County systems:
[R]elief is due to be GRANTED with respect to the school 
children now or hereafter residing in the geographical 
areas of Parcel B recently annexed to the City of 
Bessemer, Alabama, but is due to be DENIED with respect 
to the school children now or hereafter residing in the

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geographical areas of Parcel A recently annexed to the 
City of Bessemer. 10/

10/ The Bessemer Board concedes in post-hearing brief 
that the immediate influx of some 212 students 
from Parcel A into the Bessemer City School System 
will not disrupt its proposed unitary plan and 
would produce no significant impact on the racial 
percentage makeup of students in the affected Jef­
ferson County schools or in the Bessemer City 
schools.

(Memorandum of Decision, Brown v. Board of Education of Bes­
semer. No. CV 65-HM-0366-S (N.D. Ala. Aug. 15, 1986) at p.
57. Here, the district court recognized the "significant" 
impact on the affected Jefferson County schools7

Even if an "inter-district" violation were required, 
see id. at 1447-48, that standard can be met in this case.
In Milliken v. Bradley. 418 U.S. 717, 753, 755 (1974), Justice 
Stewart wrote in his concurring opinion that "[w]ere it to 
be shown, for example, that state officials had contributed 
to the separation of the races by drawing or redrawing school 
district lines . . . then a decree calling for transfer of 
pupils across district line.'; or for restructuring of district 
lines might well be appropriate." Pleasant Grove officials 
are state officials for purposes of the Fourteenth Amend­
ment, and but for their rao.ally motivated refusal to annex 
the Dolomite area it would remain in the Pleasant Grove/ 
Jefferson County school system today and the 1987 election and

7This was the correct analysis. See Lee v. Lee Countv 
Board of Education. 639 F.2d 1243, 1262 n.13 & cases cited (5th 
Cir. 1981).

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petition for annexation to Birmingham would never have taken 
place. Thus, state actors have for racially discriminatory 
reasons contributed to the significant changes in racial 
composition of schools in the Jefferson County school system 
which will result from the Dolomite annexations to Birmingham.8

(b) The equities weigh heavily in favor of the appellants, 
and in this Circuit will justify issuance of the relief sought 
even if the Court is not convinced that appellants will prevail 
on the merits but believes only that they have presented a 
"substantial case on the merits." Garcia-Mir v. Meese. 781 
F.2d 1450, 1453 (11th Cir. 1986); id. at 1457 (Clark, J., 
concurring); Ruiz v. Estelle. 650 F.2d 555 (5th Cir. Unit A 
1981).

Here, appellants and the other pupils residing in the 
Dolomite areas face immediate, substantial and irreparable 
injury. If an injunction pending appeal is not granted, 
they will either be required to leave the integrated schools 
which "hey have for years attended; to interrupt their courses 
of stv ly, their extra-curricular activites, and relationships 
with teachers and friends (see Plaintiffs' Exhibits 13-16 
introduced at August 17 hearing [affidavits of students]); 
and to be reassigned to schools that "will be almost exclu­
sively, if not exclusively, black, within the school system 
of the City of Birmingham" (Oral Findings, p. 5), or they

8See Lee v. Lee County Board of Education. 639 F.2d at 1264-69.
12



will be required to expend funds for tuition payments to the 
Jefferson County Board of Education —  in some cases, funds 
that have been earmarked for post-high school studies (see, 
e.q.. Plaintiffs' Exhibit 16 introduced at August 17 hearing, 
p. 2 [affidavit of Tamiko Johnson]).9 Moreover, should the 
Attorney General interpose an objection to the proposed annexa­
tions under § 5 of the Voting Rights Act, the Dolomite students 
could be required to return to the Jefferson County school 
system at some undetermined point after the school year has 
begun, with an impact upon their educational progress and 
social and emotional well-being which cannot be ascertained.

(c) On the other hand, Jefferson County will suffer no 
injury if it continues to educate these students pending 
plenary consideration and disposition of this appeal. The 
county school system will continue to receive state and other 
revenues for these students and obviously has adequate school 
capacity to house them. See Brown v. Board of Education of 
Bessemer. 808 F.2d at 1449.

(d) Finally, the public interest in maintaining public 
school desegregation in Jefferson County, so painfully sought 
over such a long period of time, is too obvious to require

9The court should bear in mind, in evaluating the equities, 
that the Dolomite areas voted or petitioned for annexation into 
the City of Birmingham after the City of Pleasant Grove refused 
to annex them for racial reasons and withdrew vital fire and para­
medic services from their residents.

13



elaboration. See Bob Jones University v. United States. 461 
U.S. 574, 591-95 (1983).

12. Plaintiffs-appellants have not sought relief pending 
appeal from the district court, because that court's refusal on 
August 17, 1987 to grant a Temporary Restraining Order makes clear 
the futility of seeking such relief.

WHEREFORE, for the foregoing reasons, plaintiffs-appellants 
respectfully pray that upon consideration of this motion and any 
response[s] thereto which may be filed in such time as the Court 
may direct, as well as the papers from the district court proceed­
ings submitted herewith, this Court issue an injunction pending 
disposition of this appeal on the merits which requires the appellee 
JEFFERSON COUNTY BOARD OF EDUCATION to provide public educational 
services to all schoolchildren now or hereafter residing in the 
areas of the "Dolomite" community of Jefferson County that are 
eligible to become annexed to the City of Birmingham, Alabama 
upon pre-clearance by the Attorney General under § 5 of the voting 
Rights Act of 1965, 42 U.S.C. § 1973c.

Respectfully submitted

Of Counsel:
DONALD V. WATKINS
Watkins, Carter & Knight 
1120 South Court Street 
Montgomery, Alabama 36104 
(205) 262-2723

OSCAR W. ADAMS, III 
729 Brown Marx Tower 
2000 1st Avenue N. 
(205) 324-4445 JULIUS L. CHAMBERS

NORMAN J. CHACHKIN 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Attorneys for Plaintiffs-Appellants
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CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following 
listed persons and bodies have an interest in the outcome of this

Hon. Sam C. Pointer, Jr., United States District Judge
Linda Stout, Regina Vann, Kimberly Nicole Gates, Veronica 

Walker, Tamiko Johnson, et al., and the class of black school- 
children residing in Jefferson County, Alabama, attending the 
public schools of Jefferson County, Alabama, or eligible to attend 
the public schools of Jefferson County, Alabama, and their parents

The United States of America
The Jefferson County Board of Education; Jim Hicks, Mrs. 

Harriette W. Gwin, Mrs. Mary Buckelew, Mrs. Ordrell Smith, and 
Dr. Kevin Walsh, as members of the Jefferson County Board of Edu­
cation; and Dr. William E. Burkett, as Superintendent of Schools 
of Jefferson County, Alabama

The City of Birmingham, Alabama; and the Hon. Richard 
Arrington, Jr., as Mayor of the City of Birmingham

Donald v. Watkins and Watkins, Carter & Knight; Oscar W.
Adams, III; Julius L. Chambers and Norman J. Chachkin, as attorneys 
for plaintiffs-appellants

Caryl Privett, Assistant United States Attorney, as attorney 
for the United States of America

Carl Johnson, Jr., as attorney for the Jefferson County Board 
of Education, its members and its Superintendent

Samuel Fisher, Assistant City Attorney, as attorney for the 
City of Birmingham and its Mayor

case:

chachkin
•ney (for Plaintiffs 
Appellants

August 24, 1987

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CERTIFICATE OF SERVICE

I hereby certify that on this 24th day of August, 1987, I 
served a copy of the foregoing Emergency Motion for Injunction 
Pending Appeal and supporting papers upon the following counsel 
for the other parties to this appeal, by delivering the same to 
an agent of Federal Express, for prepaid next-day delivery to 
each of them as follows:

Carl Johnson, Jr., Esq.
603 Frank Nelson Building 
Birmingham, Alabama 35203
Caryl Privett, Esq.
Assistant United States Attorney 
200 Federal Building 
Birmingham, Alabama 35203
Samuel Fisher, Esq.
Assistant City Attorney 
710 North 20th Street 
Birmingham, Alabama 35203