Memorandum in Brief of Respondents in Reply to Petitioner's Brief in Support of Motion for Summary Judgment

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BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAW 
405 VAN ANTWERP BUILDING 

PF. O. BOX 1051 
MOBILE, ALABAMA 36633-10851 

JAMES U. BLACKSHER March 19, 1986 TELEPHONE 
LARRY T. MENEFEE (205) 433-2000 
GREGORY B. STEIN 

WANDA J. COCHRAN 

Hon. Myron H. Thompson 
United States District Judge 
Middle District of Alabama 
Federal Courthouse 
Montgomery, AL 36104 

RE: Dillard, et al. v. Crenshaw County, Alabama, et al. 
Civil Action No. 85-T-1332—N 

Dear Judge Thompson: 

In light of your questions from the bench at the hearing on 
preliminary injunction held March 4, I am in retrospect 
dissatisfied with only a cursory reference on page 34 of our 
proposed findings of fact and conclusions of law to 
School District No. 1, 413 U.S. 189 (1973). In fact, as I hope I 
indicated in response to your questions at trial, our theory 
about a statewide Section 2 violation requiring a statewide 
remedy is closely analogous to the "Northern" school 
desegregation principles announced by the Supreme Court. In those 
cases there was no statutory requirement establishing the de Jjure 
system of segregation, in contrast with the school segregation 
laws in the South. Rather the Court upheld district court 
findings of systemwide intentional segregation based on an 
historical series of policies and practices that had segregative 
effects coupled with occasional localized acts of clear 
segregative intent. 

The Keyes principles were most recently affirmed in Columbus Bd. 
of Education v. Pennick, 443 U.S. 449 (1979), and t 
Education v. Brinkman, 443 U.S. 526 (1979). In Columbus, the 
Supreme Court rejected the School Board's contention that no de 
Jure system could exist where there had been no statutory 
requirement or authorization to operate segregative schools. 443 
U.S. at 455. The finding of intentional discrimination was upheld 
based on an historical "series of constitutional violations", and 
clear patterns of racial separation resulting from "cognitive 
acts or omissions of those school board members and 
administrators who had originally intentionally caused and later 
perpetuated the racial isolation... ." 443 U.S. at 455-586. The 
“systematic program of segregation" carried out by the Columbus 
School Board extended over an entire century and is conceptually 

 



  

Hon. Myron H. Thompson 
March 19, 1986 
Page Two 

indistinguishable from the systematic program of manipulation of 
the at-large election systems for county commissions conducted 
for over a century by the Alabama Legislature. See 443 U.S. at 
456. The Court held that it was not necessary for the Columbus 
plaintiffs to demonstrate that "all schools were wholly black or 
wholly white in 1954... ." 443 U.S. at 456. Instead, "[plroof of 
purposeful and effective maintenance of a body of separate black 
schools in a gubstantial part of the system itself is prima facie 
proof of a dual school system and supports a finding to this 
effect absent sufficient contrary proof by the Board, which was 
not forthcoming in this case." 443 U.S. at 458 (emphasis 
added). 

Equally significant were the findings in Dayton, where the 
establishment of two or three one-race schools through the 
history of the school system was found to be highly probative of 
systemwide racial motives, particularly when coupled with the 
weight of all the historical practices and policies. The Supreme 
Court approved the district court’s conclusion that the School 
Board’'s "intentional segregative practices cannot be confined in 
one distinct area"; they "infected the entire Dayton public 
school system." 443 U.S. at 536-37. Thus, the patterns of proof 
of intentional racial discrimination in these northern school 
desegregation cases parallel the proof in the instant case: a 
series of policies and practices in particular historical 
contexts that had clear racial impact throughout the jurisdiction 
controlled by the decisionmakers whose motives were in question; 
localized instances of clear racial intent that confirm the 
inferences supplied by the historical patterns; and a strong 
national mandate to dismantle the vestiges of historical 
segregation. The case for systematic, historical, racially 
discriminatory motives on the part of the Alabama Legislature is 
even clearer in the instant case than in the northern school 
desegregation cases, because we have produced "smoking gun” 
statements connected with the 1953 anti-single shot law and the 
1961 numbered post law. 

An additional point from Keyes, Columbus and Dayton is the 
requirement that the jurisdiction found guilty of intentional 
segregation proceed immediately to dismantle the discriminatory 
system root and branch. The duty to dismantle extends throughout 
the system, even where no localized acts of discrimination have 
been demonstrated. E.g., Dayton, supra, 443 U.S. at 537. 

 



  

Hon. Myron H. Thompson 
March 19, 1986 
Page Three 

In light of Congress’ purpose in 1982 amending the Voting Rights 
Act, the national mandate for elimination of all vestiges of 
discriminatory structures that dilute black voting strength is 
just as strong as the national mandate to desegregate the 
schools. 

Best regards. 

Very respectfully, 

BLACKSHER, a 
s    

‘Japes U. Blacksher 
: WP 

  

   

CC All Counsel 

  

STEIN, P. A.