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

    \

In the

UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 92-6033

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 FI. 
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., #  301 
Washington, D.C. 20005 
(202) 682-1300

Counsel for Plaintiffs-Appellants

Date: July 6, 1992



Table of Authorities .............................................................................................................  ii

Issues Presented for Review ............................................................................................  1

A rgum ent................................................................................................................................. 2

I. Defendants’ Brief Fails to Dispute Evidence Clearly Demonstrating 
Discriminatory Intent and Effect in Violation of the Equal Protection
Clause and Title V I .......................................................................................................  3

II. The District Court Erred in Ignoring Evidence Of A History of
Discriminatory Actions by the School Board ............................................................ 6

III. The District Court’s Decision was Clearly Erroneous. Because 
the Evidence Clearly Establishes that Plaintiff’s Suffered
Discriminatory Treatment .....................................................................................  8

A. School Closing and Site Selection Decisions ...................................................  10

B. The Reassignment of Students From the All-Black Hannah Mallory
Elementary School ..............................................................................................  16

C. Racial Isolation of Black Students at the Talladega County
Training School ................................................................................................... 18

D. Barriers to the Participation of Black Citizens in the
Decisionmaking Process ....................................................................................  21

IV. The District Court Erred in Dismissing Plaintiffs’
First Amendment Claim ..........................................................................................  22

V. The District Court Erred in Dismissing Plaintiffs’
State Law Claim ...........................................................................................................  22

VI. The District Court Erred in Dismissing Plaintiffs’
Breach of Contract Claim ........................................................................................ 23

Conclusion ..............................................................................................................................  23

TABLE OF CONTENTS
PAGE

i



TABLE OF AUTHORITIES

Alexander v. Choate, 469 U.S. 661 (1985)   8

Anderson v. Bessemer City, 470 U.S. 564 (1985)...............................................................  3

Bronson v. Board of Education of Cincinnati, 687 F.2d 836
(6th Cir. 1982) ......................................................................................................................7

Consolidated Rail Corp. v. Darrone. 465 U.S. 624 (1984) .................................................8

Davis v. School District of Pontiac. 309 F. Supp. 734 (E.D.
Mich. 1970), affd , 443 F.2d 574 (6th Cir.), cert.
denied. 404 U.S. 913 (1 9 7 1 )......................................................................................................7

* Georgia State Conference of Branches of NAACP v. State of
Georgia, 775 F.2d 1403 (11th Cir. 1985) ............................................................................8

Guardians Association v. Civil Service Commission of New
York City. 463 U.S. 582 (1983).............................................................................................8

Lee v. Anniston City School System, 737 F.2d 952 (1984) ..............................................  21

Lee v. Macon County, 448 F.2d 746 (5th Cir. 1971) ..........................................................4

Lee v. Talladega Countv Board of Education.
No. 88-7471 (June 15, 1992 slip opin ion)....................................................................... 23

Los Angeles Branch NAACP v. L.A. Unified School District,
750 F.2d 731 (9th Cir. 1984)..................................................................................................6

Movible Offshore. Inc, v. M/V Wilken A. Falgout, 471 F.2d 
268 (5th Cir. 1973) .............................................................................................................. 12

Price Waterhouse v. Hopkins. 490 U.S. 228 (1989) ........................................................... 12

United States v. Lowndes County Board of Education. 878 F.2d
1301 (11th Cir. 1989)....................................................................................................  18, 19

* Authorities primarily relied upon.

CASES PAGE

ii



CASES PAGE

Village of Arlington Heights v. Metropolitan Housing Corp.,
429 U.S. 252 (1977) ........................................................................................ 6. 9, 20, 21

* Williams v. City of Dothan. 745 F.2d 1406 (11th Cir. 1 9 8 4 ).............................................. 9

CONSTITUTIONAL PROVISIONS AND STATUTES
First Amendment ................................................................................................................3, 22

Fourteenth Amendment ................................................................................................... passim

28 U.S.C. § 1331..........................................................................................................................22

42 U.S.C. § 1983 .......................................................................................................................  22

Title VI of the Civil Rights Act of 1964. 42 U.S.C. 8 2000d .....................................passim

34 C.F.R. §100.3(b)(3) .................................................................................................  8, 9, 10

Ala. Code § 36-12-40 ..................................................................................................................2

* Authorities primarily relied upon.



In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 92-6033

QUINTIN ELSTON, et al..

Plaintiffs-Appellants

vs.

TALLADEGA COUNTY BOARD OF EDUCATION

Defendants-Appellees

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

REPLY BRIEF FOR APPELLANTS

Issues Presented for Review

1. Whether the district court erred in ruling with respect to Count II under the 

Fourteenth Amendment and Count III under Title VI of the Civil Rights Act of 1964. 42 

U.S.C. § 2000d, and the regulations promulgated thereunder, that plaintiffs had failed to 

prove either discriminatory intent or effect regarding the Board’s school closing and new 

construction plan and interdistrict transfers.

2. 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 only be pursued in that litigation, although that litigation had been dismissed.



3. 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.

4. 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 public documents.

5. Whether the district court erred in refusing to require defendants to provide 

discovery regarding any matter prior to school year 1985-86.

6. Whether the district court erred on remand in denying plaintiffs’ request to 

supplement the record with evidence regarding discriminatory actions taken by defendants.

ARGUMENT

This case involves the perpetuation of a one-race school and the denial of 

educational benefits to black school children in the Talladega County School District. 

Defendants’ brief attempts to divert attention from the pivotal, uncontested facts of this 

case by mischaracterizing plaintiffs’ claims. Their brief largely relies upon evidence that is 

irrelevant to the issues at hand, while distorting those pieces of evidence that do bear upon 

plaintiffs’ claims.

As the evidence of record clearly demonstrates, defendants’ actions have been 

discriminatory, both in their purpose and in their effects. The Talladega County School 

Board has denied educational benefits to plaintiffs in its school closing and site selection 

decisions. The actions of defendants have kept Talladega County Training School over 

99% black, while resulting in the underutilization of this school, leaving it so small that it 

does not even qualify as an "approved educational center" under AJabama State

i



Department of Education guidelines (PX-19-10: R1-S3-2 11 4; PX-14).1 Defendants’ 

conduct demonstrates an unmistakable pattern of denial of equal treatment that violates 

the Equal Protection Clause of the Fourteenth Amendment. Title VI of the Civil Rights 

Act of 1964, and regulations promulgated pursuant thereto.

I. DEFENDANTS’ BRIEF FAILS TO DISPUTE EVIDENCE CLEARLY 
DEMONSTRATING DISCRIMINATORY INTENT AND EFFECT IN 
VIOLATION OF THE EQUAL PROTECTION CLAUSE AND TITLE VI

The evidence of record shows that (1) defendants have acted to confer the benefit

of new educational institutions in a racially discriminatory manner (2) defendants have

perpetuated segregation in Talladega County by keeping historically black Talladega County

Training School over 99% black, and (3) these actions fit a pattern of behavior inexplicable

on grounds other than race. Contrary to defendants assertions, the facts underlying these

claims were largely undisputed. Many were stipulated or proved by uncontroverted

evidence at trial. Much of the evidence came from defendants themselves. On this record,

the question whether the "district court’s account of the evidence is plausible in light of the

record viewed in its entirety,11 Anderson v. Bessemer City, 470 U.S. 564 (1985), must be

answered no.

Rather than defending their actions on the merits, defendants’ brief attempts to 

divert attention from these actions by emphasizing facts that are either tangential or 

irrelevant. In order to address the central issues of this case, it is helpful to examine what 

defendants’ brief does not dispute.

‘Ail cited exhibits and excerpts from the trial transcript are included in Appellants’
Appendix ("Aplts. App."). Plaintiffs’ exhibits are identified herein as "PX-__" and
defendants’ exhibits as "DX- ".

3



%

Plaintiffs have challenged defendants' decision to reduce the grade structure of 

historically and majority black Talladega County Training School (R2-93-2 U 1), and to 

relocate these grades at the site of historically white Idalia School (Rl-83-3 11 8).2 

Defendants do not dispute, and have stipulated as fact, that schools confer benefits upon 

the communities in which they are located (Rl-83-1, 2 HU 1, 2). By closing grades K-6 of 

the historically black Training School, and moving these grades to the site of the historically 

white Idalia School, defendants denied the acknowledged benefits associated with the 

community in which a school is located to the black citizens of Talladega County. The 

stigmatic injury directly to black schoolchildren resulting from the denial of equal treatment 

in school site selections was recognized by the Former Fifth Circuit in Lee v. Macon 

County. 448 F.2d 746 (5th Cir. 1971). That decision acknowledged that black children 

would be stigmatized if the burdens of desegregation were disproportionately visited upon 

them by locating all desegregated schools in white communities. In such situations, black 

children were constantly made to feel as if they were outsiders and their communities were 

not good enough to serve a desegregated institution where whites would attend. Id  at 754 

and n.12. In the Talladega County School System, the racial pattern of closing and 

restructuring historically black schools and new construction in white communities injures 

black schoolchildren by treating them as second-class persons.

Defendants’ brief makes no attempt to justify their site selection on non-racial 

grounds. Instead, they defend their decision to consolidate three elementary schools (Brief 

of Appellees at 15). But as plaintiffs have made clear, it is not consolidation that is

2The newly created school, which consolidates the Jonesview Elementary School, Idalia 
Elementary School, and Talladega County Training Elementary School at the site of the 
historically white Idalia School (Rl-83-3 U 8), is called the Stemley Bridge Road 
Elementary School.

4



challenged by this action, but the selection of the Idalia site for the consolidated school 

(Appellants’ Main Brief at 44). Defendants' argument entirely fails to address this 

challenge. Their brief simply does not contest the discriminatory impact of their site 

selection decision.

It is also important to note that defendants’ brief makes no attempt to defend the 

"non-discriminatory justification" for the site selection relied upon by the district court. The 

court credited defendants’ assertion that for educational reasons the Board did not want 

elementary students at the same location as secondary students and therefore decided 

against the Training School site. (R2-93-15 TI 17). Plaintiffs pointed out that this 

justification was pretextual because defendants were operating three K-12 schools and had 

justified the closing of another historically black school by using a contrary rationale. 

(Appellants’ Main Brief at 42-43). Defendants' brief fails to respond to these arguments. 

Likewise, their brief fails to address the district court’s finding that there was adequate 

property available at the Training School site, relying on testimony of Mr. Dumas. (R2-93- 

7 II 19) Finally, they have offered no evidence to dispute the fact of gross underutilization 

of the Training School facility as a 7-12 school (Appellants’ Main Brief at 44-45), thus 

making clear the pretextual nature of the suggestion that all the space at the existing 

Training School facility was needed for a renovation and upgrade. This justification is 

weakened further by the fact that there was property available for expansion.

Defendants do not dispute that interdistrict transfers have permitted white students 

to avoid 99% black Talladega County Training School. They do not deny that the transfer 

of students from the Training School’s zone into the Talladega City School District has 

exacerbated the "one-race" character of the Training School. Instead, defendants assert 

that the "racial balances of the three Talladega County school systems" have not changed

5



"during the last 15 years" (Brief of Appellees at l l ) .3 While this may be true, it is 

immaterial and irrelevant with respect to plaintiffs’ claim that zone-jumping has permitted 

white students to avoid the Training School. By condoning zone-jumping, defendants have 

increased the racial identifiabilitv of the Training School.

Finally, Defendants do not dispute the pattern of closing and reducing the grade 

structure at historically black schools, while enhancing historically white schools 

(Appellants’ main brief at 11-13).

II. THE DISTRICT COURT ERRED IN IGNORING EVIDENCE OF A 
HISTORY OF DISCRIMINATORY ACTIONS BY THE SCHOOL 
BOARD

Defendants’ conduct over the years demonstrates a stark pattern that confirms the 

presence of discriminatory intent in recent actions regarding site selection, reassignments, 

and interdistrict transfers. Although defendants urge this Court to disregard the County 

Board’s history of discrimination (Brief of Appellees at 2. 3), this history is critical to an 

understanding of the Board's actions challenged here. A pattern of discriminatory official 

action may reveal the existence of discriminatory intent. Village of Arlington Heights v. 

Metropolitan Housing Dev. Corp.. 429 U.S. 252, 266 (1977).

Defendants' brief mischaracterizes the holding in Los Angeles Branch NAACP v. 

L.A. Unified School District. 750 F.2d 731 (9th Cir. 1984). Defendants suggest that this 

case precludes courts from considering a discriminatory pattern of conduct. But as the

3There are three separate school districts within the boundaries of Talladega County, 
Alabama: Talladega County School District. Talladega City School District, and Sylacauga 
City School District. This case concerns the actions of both Talladega County School 
District and Talladega City School District, which have contributed to the discriminatory 
treatment of blacks in the Talladega Countv School District.

6



Court of Appeals for the Ninth Circuit clearly stated: "parties may introduce evidence of 

events occurring on or before Mav 2. 1969 [the effective date of the res judicata bar of the 

prior litigation] so long as it is relevant to a claim of de jure segregative acts committed 

after that date." Id  at 740-41. Defendants similarly mischaracterize the holding in 

Bronson v. Bd. of Educ. of Cincinnati. 687 F.2d 836, 841 (6th Cir. 1982) (Brief of Appellees 

at 24), in which the Court of Appeals for the Sixth Circuit stated: "evidence of events and 

practices which occurred prior to the date [of termination of prior litigation] are admissible 

if relevant to the post-1965 inquiry. ' Even if past practices standing alone do not provide 

a basis for relief, they may indicate the existence of a developing pattern. See Davis v. 

School Dist. of Pontiac. 309 F. Supp. 734. 741 (E.D. Mich. 1970) (finding a racially 

discriminatory pattern of school location despite earlier federal court approval of 

construction of an all-black school in black neighborhood), affd, 443 F.2d 574, 576 (6th 

Cir.), cert, denied, 404 U.S. 913 (1971).

In this case, the district court erred in refusing to consider evidence of discriminatory 

conduct prior to March 13. 1985. Contrary to the accusation of defendants (Brief of 

Appellees at 23), plaintiffs do not seek to relitigate actions before that date. Rather, they 

seek to expose the discriminatory intent behind defendants’ recent actions, by showing the 

their recent decisions to be consistent with a long history of discriminatory behavior in 

school closings, student reassignments, and site selections. Nothing prevents plaintiffs from 

contesting the most recent actions in a series of continuing discriminatory behavior, id., 

especially where the pattern has become increasingly conspicuous over the course of time.

7



III. THE DISTRICT COURTS DECISION WAS CLEARLY ERRONEOUS.
BECAUSE THE EVIDENCE CLEARLY ESTABLISHES THAT
PLAINTIFFS’ SUFFERED DISCRIMINATORY TREATMENT

Defendants’ actions violate both Title VI and the Equal Protection Clause. Title VI 

of the Civil Rights Act of 1964 states that no person "shall be denied the benefits of, or be 

subjected to discrimination under any program or activity receiving Federal financial 

assistance" on the grounds of race. 42 U.S.C. § 2000d. In determining the "site or location 

of facilities," recipients are prohibited from "excluding individuals from, denying them the 

benefits of. or subjecting them to discrimination . . .  on the ground of race." 34 C.F.R. § 

100.3(b)(3). Under these regulations. Title VI claims are to be determined according to 

disparate impact analysis.4 If plaintiffs demonstrate practices having racially 

disproportionate effects, the burden shifts to defendants to show a legitimate justification 

for their actions. If defendants do so, plaintiffs may still prevail by showing that 

defendants’ justification is a pretext, or by showing an equally effective alternative with a 

less discriminatory impact. Georgia State Conference Branches of NAACP v. State of 

Georgia. 775 F.2d 1403. 1417 (11th Cir. 1985).

Plaintiffs made out a prima facie case under the Title VI regulations by showing that 

the Board’s school closing and site selection decisions had a "racially disproportionate 

effect." Id. Since defendants have failed to produce a "substantial legitimate justification" 

for their action, plaintiffs should prevail. Id. As defendants have stipulated, it is a "benefit 

to a community to have a school located in the community" (Rl-83-1, 2 HH 1, 2). By 

reducing the grade structure of the Training School, and relocating grades K-6 in a

4Georgia State Conference of Branches of NAACP v. State of Georgia. 775 F. 2d 1403, 
1417 (11th Cir. 1985), relying on Guardians Ass’n v. Civil Service Comm’n of New York 
City, 463 U.S. 582 (1983); Consolidated Rail Corp. v. Darrone. 465 U.S. 624, 630 n.9 
(1984); Alexander v. Choate. 469 U.S. 661 (1985).

8



predominantly white community, defendants have denied benefits to black citizens of 

Talladega County. The regulation specifically prohibits the racially discriminatory denial 

of benefits in the site or location of facilities. 34 C.F.R. § 100.3(b)(3).

The Board’s decision to build a new facility in a predominantly white area confers 

a benefit on the white community, while resulting in affirmative damage to black 

schoolchildren. The Board’s actions leave the all-black Training School extremely small 

and at constant risk of closure, impairing its ability to offer a full curriculum to its students. 

At the same time, defendants have ensured that white students will be able to avoid the 

Training School for grades 7-12. by condoning zone jumping and restricting the boundaries 

of the Training School's attendance zone. The racially disproportionate effect of these 

actions is unmistakable. Benefits have been denied the black citizens of Talladega County, 

and allocated to predominantly white communities. Since defendants have failed to provide 

a substantial, legitimate, nondisci iminatorv justification for their closing and relocation 

decisions, their actions violate the Title VI regulations.

In order to establish a violation of the Equal Protection Clause, plaintiffs must show 

intentional discrimination. It is not necessary, however, to produce a "smoking gun." 

Contrary to defendants' suggestion (Brief of Appellees at 5), plaintiffs need not produce 

"direct evidence of bad faith, ill will or any evil motive" to prove intentional discrimination. 

Williams v. City of Dothan. 745 F.2d 1406. 1414 (11th Cir. 1984). As the Supreme Court 

has stated, a "clear pattern, unexplainable on grounds other than race" sometimes emerges 

from "the effect of state action." Arlington Heights. 429 U.S. at 266. In these 

circumstances, discriminatory intent may be established through such evidentiary showings 

as substantial disparate impact, a history of discriminatory official actions, procedural and 

substantive departures from the norms generally followed by the decisionmaker, and the

9



legislative or administrative history of the decision. Ich at 265-69.

The record in this case demonstrates a clear pattern inexplicable on grounds other 

than race. Historically black schools have been closed while white schools have been kept 

open and enhanced (DX-4; PX-14; PX-20-113). The Board’s decisions to eliminate grades 

K-6 of the historically black Training School and build a new school in a predominantly 

white community are consistent with this pattern of discrimination. Similarly, the Board’s 

actions permitting white students to avoid Talladega County Training School demonstrate 

its continuing adherence to the belief that whites ought not be required to attend 

predominantly black schools. The Board has imposed barriers to the participation of black 

citizens in the decisionmaking process. This pattern of action belies any suggestion that the 

discriminatory impact of its recent actions is accidental. The conclusion that the defendants 

have acted with discriminatory intent is unmistakable. No other plausible explanation has 

been suggested.

A. School Closing and Site Selection Decisions

The Board stipulated that schools benefit the communities in which they are located 

(Rl-83-1, 2 1111 1, 2). Uncontested evidence demonstrated that space was available for the 

consolidated school at the Training School site (R4-477-78 [Dumas]). Nevertheless, the 

Board decided to build the new elementary school at the site of a historically white school 

rather than at the Training School Site (R3-32 [Elston]; R3-117 [Jones]). This decision left 

the Training School an over 99% black, underutilized facility (Rl-83-2 11 4 [1988-89 

statistics]). Defendants have failed to produce a substantial, legitimate, non-discriminatory 

justification for their decision to relocate at the Idalia site rather than the Training School 

site. In the absence of a non-discriminatory explanation, the grade reduction and site 

selection decisions clearly violate Title VI Regulations regarding the location of school

10



facilities. 34 C.F.R. 100.3(b)(3).

Defendants’ brief does not even attempt to assert a non-discriminatory justification 

for this decision. Instead, thev defend their decision to consolidate three different 

elementary schools (Brief for Appellees at 15), and argue that the new school would 

combine "the elementary grades of two majority white schools with one predominantly 

black school" (Brief of Appellees at 13). This statement is factually incorrect: the new 

school actually consolidates two majority black schools and one majority white school.5 

More importantly, however, their argument misses entirely the thrust of plaintiffs’ claim. 

As was clearly stated in plaintiffs’ brief, "it is the site selection and underutilization of the 

Training School." not the "decision to consolidate." that is discriminatory (Brief for 

Appellants at 44).

Critically, defendants’ brief effectively abandons the "non-discriminatory 

justifications" for their site selection which were accepted by the district court. In fact, the 

Brief does not refer to them at all. Prior to trial, the Board had 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 through 12 (R 1 -83-25 U 16). At trial, plaintiffs produced 

uncontested testimony that the propertv adjacent to the Training School owned by the 

Dumas family was available to the Board (R4-477-78 [Dumas]). The district court found 

that "[tjhere is property adjacent to the Talladega County Training School which . . . would

5The Stemley Bridge Road Elementary School consolidates the Idalia Elementary 
School, the Jonesview Elementary School and the Talladega County Training Elementary 
School. For the school year 1988-89. Idalia was 46% black (K-4)(Rl-83-3 11 9), Jonesview 
was 65% black (K-6)(Rl-83-2 U 6), and the Training School was 99.9% black (K-6)(Rl-83-2 
11 4).

11



have been suitable for expansion. This includes property owned by members of the Dumas 

family and the Lawson family" (Rl-93-7 H 19.) Mr. Dumas testified that his property was 

"slightly over forty acres" (R4-476 [Dumas]). There was no evidence contradicting the 

testimony of Mr. Dumas or the letter from Mr. Stamps to Dr. Grissett confirming the 

availability of the Dumas property (PX-48). The district court’s contrary finding cannot be 

explained as anything other than clear error.

The second pre-trial justification, the need for space at the Training School, is 

inadequate on its face. Even if all the existing space at the Training School were needed 

for the 7-12 program, this in itself would not bar further expansion of the school; nor would 

it prevent the construction of the consolidated elementary school at the Training School 

site in a separate building. Moreover, it is clear pretext given the undisputed facts showing 

that the Training School is grossly underutilized.

Defendants third justification for their site selection decision — that for reasons of 

educational policy, they did not want elementary and secondary students at the same site -  

is nothing more than a post hoc rationalization and a pretext for discrimination. The 

Board did not use this rationale as part of its decisionmaking on the site selection; nor had 

they devised this justification before the start of trial. No mention was made before trial 

of any educational rationale. As the Supreme Court stated in Price Waterhouse v. 

Hopkins, 490 U.S. 228 (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." Id. at 289. The School Board's rationales, all of which are pretextual, make 

clear that the district court’s finding to the contrary was clearly erroneous. See Movible 

Offshore, Inc, v. M/V Wilken A. Falgout. 471 F.2d 268, 272 (5th Cir. 1973) (reviewing court 

should examine whether the findings "clearly consist of illogical or improper inferences").

12



In addition, plaintiffs showed at trial that the decision to build a new school at a 

separate location was uneconomical, compared to the cost of renovating and enlarging the 

existing Training School facility. The testimony of plaintiffs’ expert Dr. Richard Mason 

confirmed the inefficiency of the Boards’ plan. Dr. Mason testified that approximately 

$1,000,000 would have been saved by expanding the Training School to accommodat the 

550 elementary students, rather than building an entirely new school and renovating the 

Training School separately (PX-52; R4-384 [Mason]). Dr. Mason also confirmed the 

Board’s conclusions regarding long term economic benefits of site consolidation (R4-426 

[Mason]).

Defendants’ brief relies heavily on a flagrant misrepresentation of Dr. Mason s 

testimony. Defendants assert that Dr. Mason admitted that the defendants’ plan to build 

the new Stemley Bridge Road School and renovate the Training School for grades 7-12 

were good." (Brief of Appellees at 12; see a]so 4). Defendants quote a portion of Dr. 

Mason's testimony on cross-examination to support this inference. (Brief of Appellees at 

15). In fact, the testimony in their brief has to do with the remodeling to be done at the 

Training School following the transfer of the elementary grades;

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/sentor 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.

R4-418 [Mason]. Contrary to the suggestion of defendants. Dr. Mason at no time referred 

to the Board’s site selection decision as "good." Furthermore, Dr. Mason’s opinion, as a 

facilities expert, related to the expenses of construction and renovation, not to the racial

13



impact of the plan. Nevertheless, defendants attempt to pass off Dr. Mason s testimony 

as evidence that the Board's actions were nondiscriminatorv.

Defendants also refer to "incomplete underlying assumptions" (Brief of Appellees 

at 4), suggesting that Dr. Mason's analysis was not sound because he assumed that existing 

elementary space at the Training School would be available. What Dr. Mason learned 

when defendants finally produced their renovation plans for the Training School on the 

second day of the trial was that the plan called for converting the existing elementary 

classroom building at the Training School to a media center (library) for the grade 7-12 

students.0 Dr. Mason forthrightly admitted that he had not considered this in his 

calculations, as he could not have been aware of these plans until they were released. (R4- 

419 [Mason)). Nevertheless, Dr. Mason demonstrated that his analysis was sound, given 

the existence of buildings other than that used for elementary classrooms at the Training 

School site that could be used for the media center (PX-20; R4-419 [Mason)). In addition. 

Dr. Mason's calculations for expansion included the cost of media center space. The funds 

allocated according to his analysis would be still available to fund replacements for the 

classrooms the Board was converting in its proposed renovation (see R4-428 [Mason]).

Despite defendants’ last-minute release of information. Dr. Mason showed the 

Board’s relocation plan to be significantly more costly than a plan consolidating grades K- 

12 at the Training School. At any rate, the district court properly recognized that placing 

a separate consolidated elementary facility at the Training School site would not have cost 

any more than construction of a new school at the Idalia site (R2-93-4 11 8).

Several pieces of evidence support the conclusion that the Board’s site selection

'The Training School already had a library.facility. (PX-20 at 85).

14



r

decision was uneconomical and discriminatory. In explaining its decision to construct a new 

middle school to replace the Phyllis Wheatley Middle School, the Board itself touted the 

benefits of consolidation of facilities (Rl-95 Attach. B. at 5; R3-245 [Grissett]). The 

Board’s President, Dr. Larry Morris, agreed that small schools were economically efficient 

and educationally unsound (R4-467-68). It is undisputed that the Training School will be 

quite small, as currently proposed by defendants, well below the Alabama State Board of 

Education’s minimum requirements for "approved educational centers" (PX-19-10)7 

Defendants have not contested these facts. Although it is not necessary for plaintiffs to 

demonstrate that the plan was inefficient in order to prevail, these inefficiencies underscore 

the lack of a rational and legitimate justification for defendants’ actions.

In attempting to justify their actions, defendants’ brief asserts that "[t]he Board 

followed the very plan of school construction recommended by the Alabama Department 

of Education" (Brief of Appellees at 15). This assertion is misleading in two respects. 

First, the Facilities Survev for School Year 1986-87, which sets out the State Board’s 

recommendation, was hand delivered to Superintendent Grissett on October 26. 1987 (R4- 

351 [Higginbotham)). Yet the decision to construct a new elementary school was made in 

June of 1987 (Rl-83-5 H 20; PX-37 [June 1987 minutes]), and property insurance for the 

site located immediately adjacent to the Idalia School was purchased on October 7, 1987 

(Rl-83-5 H 21; PX-43). The Board could not have "followed" a recommendation it had not 

yet received. Second, the State Board of Education made no recommendation as to the 

location of the new school. Although the State Board did recommend that grades K-6 of 

the Jonesview, Idalia, and Training Schools be consolidated, it is false to suggest that the

Enrollments are well below the State Board’s minimum requirement of 175 in grades 
7-9 and 175 in grades 10-12 (PX-14; PX-19-10).

15



State Board recommended that the new school be located at the Idalia/Stemlev Bridge 

Road site. Indeed, the State Board specifically stated that the County Board should 

"[c]lose and abandon Idalia and Jonesview Schools" (PX-19-31).

Defendants’ actions after trial confirm the discriminatory character of their site 

selection and construction plan. After trial, the Board reduced the attendance zone for the 

Training School, so that even fewer students will be assigned to it. (See Aplts. App. at 52- 

57). The Board rejected plaintiffs’ urging to make the Training School zone co-extensive 

with the Stemlev Bridge zone, which would have increased the size of the school and 

decreased its extreme racial isolation. The trial court refused, however, to allow plaintiffs 

to introduce evidence on this issue on remand. In their brief, defendants respond that 

"[n]ot all elementary students would go to Talladega County Training School for 7-12 

because students in the northern and eastern portion of that elementary zone are closer to 

the Lincoln High School" (Brief of Appellees at 6). The fact is, that none of the students 

in the old Idalia zone and none of them in the northern extension of that zone are assigned 

to the Training School for grades 7-12, regardless of proximity to the Training School. 

Thus, by relocating grades K-6 of the Training School, and refusing to make the attendance 

zone for grades 7-12 co-extensive with those of the new elementary zone, defendants have 

ensured the underutilization of the Training School, and have perpetuated the inferior 

education of the black students who attend the school.

B. The Reassignment of Students From the All-Black Hannah 
Mallory Elementary School

There is no dispute that after defendants closed the historically black Hannah 

Mallory Elementary School, they reassigned the majority of those students (all of whom 

were black) to the Training School. (R4-493 [Romanej; PX-14; R2-93-6 H 13). This was

16



accomplished through the use of a non-contiguous K-6 zone. (R2-93-7 11 19; DX-30). This 

assignment pattern created the only non-contiguous zone in the County System (PX-16). 

At the same time, it reinforced racial segregation in the system and overcrowded the 

Training School to such an extent that portable classrooms were required (R4-493-94 

[Romane]; R2-93-6 11 15). Defendants offered nothing to dispute the fact that these actions 

increased the concentration of blacks at the Training School and made it more difficult to 

desegregate. Instead they attempt, in part, to switch the issue from reassignment upon 

closure to the rationale for closure. (Brief of Appellees at 6). It is inappropriate, however, 

for defendants to argue about the rationale for their decision to close the Hannah Mallory 

School, when at their request the district court refused to allow plaintiffs to take any 

discovery on the issue. Defendants also assert that the non-contiguous zone was necessary 

because "not all students could be assigned to any one or two schools, and they were 

distributed between TCTS, Idalia, and Childersburg based on space available and existing 

bus routes" (Brief of Appellees at 6). There is no evidence to indicate that this is anything 

more than a post hoc rationalization, and a poor one at that. As the principal of the 

Training School at the time the reassignments were made testified, adequate space was not 

available at the Training School and he was required to use portable classrooms to 

accommodate the students (R4-493-94 [Romane]).

The Board offered no reason why portable classrooms could not have been placed 

at the Childersburg School, thereby accommodating the Hannah Mallory students in a 

desegregated environment. Dr. Grissett’s vague contention that "existing bus routes" 

required the reassignment plan selected (R4-341; repeated in Brief of Appellees at 6) is 

inadequate on its face. Bus routes are not an immutable feature of a school district. 

School districts change bus routes all the time. In fact, by closing Hannah Mallory, the

17



Board was necessarily required to change existing bus routes. The Board did not assert 

that changing the bus routes would have presented a significant problem. Defendants’ 

failure to provide a substantially, legitimate and non-discriminatorv explanation for the 

Hannah Mallory reassignment strongly supports the conclusion that the reassignment was 

designed to increase the concentration of black school children in the racially segregated 

environment at the Training School.

C. Racial Isolation of Black Students at the Talladeea County 
Training School

By permitting white students to avoid the almost all-black Training School, 

defendants have exacerbated both the racial isolation and the unequal education of the 

black students who attend the school. As the district court found, "[m]any of the white 

students are likely avoiding historically black Talladega County Training School" (R2-93-11 

H 36). Defendants’ brief cites evidence relating to the overall racial compositions of 

Talladega City School System and Sylacauga City School System (Brief of Appellees at 5, 

7-8, 11, 19).8 Their arguments entirely fail to address the evidence demonstrating that 

zone-jumping has exacerbated the racial isolation of the Training School.

Defendants’ attempt to distinguish the instant case from United States v. Lowndes 

County Bd. of Educ.. 878 F.2d 1301 (11th Cir. 1989), is unavailing. In Lowndes County. 

this Court ruled that the test for determining a violation is whether the cumulative impact 

of transfers serves to reduce desegregation or promote a dual system as judged on school- 

by-school basis. Id. at 1304. As defendants correctly emphasize, the central inquiry is 

whether the "transfers increased the racial identifiabilitv of the schools involved." (Brief

8Plaintiffs have not raised the issue of zone-jumping into the Sylacauga City School 
District in this case.

18



of Appellees at 18, citing Lowndes County at 1302-05) (emphasis in Appellees’ Brief).

The evidence demonstrates that zone-jumping has increased the racial identifiabilitv 

of the Talladega County Training School. It is undisputed that significant numbers of white 

children assigned to County Schools attend the public schools of Talladega City (Rl-93-10 

11 30; PX-32; PX-50; PX-35; R3-113-15 [Jones]). Data for the 1988-89 school year confirms 

at least 54 white children transferring out of the district from the Training School zone, 

compared to only 5 black children (PX-50). Although the Training School 7-12 zone 

includes the Jonesview Elementary School (K-6) zone, white students have consistently 

failed to enroll in the Training School in grades 7-12. Between 1984-85 and 1988-89. an 

average of 68 white students attended Jonesview per year. During this same period, the 

Training School, to which Jonesview graduates are assigned, had an average of only 17 

white students per year in grades 7-12 (PX-14). While defendants assert in their 

"Statement of the Issues" that "objective statistics showed no disparate impact," their brief 

conspicuously fail to address the fact that over 91% (54 of 59) of students transferring out 

of the Training School zone to another district were white (PX-50).9

The practice of zone jumping has allowed white students to avoid this predominantly 

and historically black institution, and has thereby increased the duality of the school system 

as a whole (PX-32; R3-151-73 [Thompson]). In spite of their awareness of this problem, 

the County Board has done nothing to stop it (R3-257 [Grissett]; Rl-83-10 11 48; R2-93-11 

H 31). In contrast, when faced with the potential loss of white students from predominantly 

white schools, the Board has taken strong action. In the early 1980’s, the Board went to

9This includes only students whose race was identified. In addition to 54 identified 
white students and 5 black students transferring from the Training School’s zone, there 
were 7 students whose race was not identified (PX-50).

19



*

federal court to prevent the annexation of a predominantly white portion of the County 

School District by the Oxford City School District 9 Rl-83-10 H 50; R2-93-12 H 41). When 

Sylacauga City sought to annex portions of the Talladega County system, which would have 

resulted in the loss of white students from predominantly white schools, the Board sought 

the assistance of the Justice Department to block the annexations (Rl-83-10 H 52; PX-31). 

The County Board made no effort at trial or in their brief before this Court to justify their 

failure to act in response to the transfer of white students from majority black Talladega 

County Training School, in view of their vigorous action in response to the loss of white 

students from majority white schools. The fact that the County School District loses at 

least $3000 for each interdistrict transfer (Rl-83-10 H 49) makes this contrast especially 

glaring. Such "[sjubstantive departures" are particularly probative of discriminatory intent 

where the factors usually considered favor a course of action different from that which was 

taken. Arlington Heights. 429 U.S. at 267.

Despite the fact that the County Board had taken strong action to prevent the loss 

of students in other circumstances, the district court denied relief on the plaintiffs’ zone­

jumping claim. The court found that Talladega County school personnel, "as a practical 

matter" could not prevent white students from transferring out of the Training School’s 

zone (R2-93-16 U 10). Now that the Talladega City Board of Education has been joined 

as a defendant, there was no reason to deny relief. The district court had before it the 

party that, according to the court, had prevented the original defendants from stopping 

interdistrict transfers. The combined actions of Talladega City and Talladega County 

School Districts have increased the racial isolation of the Training School. In doing so. 

they have deprived black schoolchildren of the benefits of a desegregated environment and 

a quality education.

20



D. Barriers to the Participation of Black Citizens__m—LtlS.
Decisionmaking Process

By enforcing the segregation of black schoolchildren at the over 99% black Training 

School, the Board revealed its discriminatory intent. The discriminatory intent of 

defendants is confirmed by their efforts to prevent plaintiffs from expressing their 

opposition to closing and reassignment plans. The legislative or administrative history of 

decisions may indicate the existence of discriminatory intent. Arlington Heights, 429 U.S. 

at 268. Defendants suggest that the Court should disregard impediments to participation 

in the decisionmaking process (Brief of Appellees at 21). But as this Court indicated in 

Lee v. Anniston City School System, 737 F.2d 952, 957 (1984), public input by both black 

and white citizens is a factor indicating fairness in the decisionmaking process. In this case, 

the evidence clearly shows that black citizens were prevented from participating in the 

decisionmaking process.

Defendants’ brief mischaracterizes the testimony of Mr. Elston regarding the Board’s 

failure to address his concerns. Their brief states that Mr. Elston testified to having 

attended only one Board meeting and did not ask to speak. (Brief of Appellees at 5) They 

neglect to mention that the Concerned Citizens of Talladega County Training High School, 

of which Mr. Elston is a member, designated a member who regularly attended the Board 

meetings and reported back to the membership (R3-11. 50 [Elston j). Defendants also 

neglect to mention that Mr. Elston made three separate written requests that the Board 

take up his group’s concerns (R3-17 [Elston); PX-4). At no point were the concerns of 

Mr. Elston or any member of the Concerned Citizens put on the Board’s agenda.

Defendants’ brief attacks plaintiffs’ motives repeatedly (Brief of Appellees at 14, 16, 

and 22), making extreme and wholly unsupported accusations that the named plaintiffs, of

21



which there are 33, are not representative of the black citizens of Talladega County (Brief 

of Appellees at 14) and have used the lawsuit as a threat (Brief of Appellees at 22). The 

fact is, plaintiffs were forced to legal action only after repeatedly being rebuffed on the 

simplest of requests. Furthermore, there are legal avenues through which to pursue such 

issues as defendants raise. That defendants have not followed such a course is indicative 

of the lack of substantive content in their accusations.

IV. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFFS’
FIRST AMENDMENT CLAIM

The sole argument defendants offer to support dismissal of plaintiffs’ First 

Amendment claim is that this claim 'did not arise from a common nucleus of operative 

facts," and therefore was "not appropriate for resolution in this case under the doctrine of 

pendent jurisdiction" (Brief of Appellees at 12). The First Amendment claim has an 

independent federal jurisdictional basis under 28 U.S.C. § 1331. It is a claim based upon 

the United States Constitution and 42 U.S.C. § 1983. (R l-1-2) The district court clearly 

erred in dismissing the claim.

V. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFFS’
STATE LAW CLAIM

The defendants also assert that the Alabama Open Records Acts claim "clearly" does 

not arise from the same facts as the Title VI and Equal Protection claims (Brief of 

Appellees at 23). This is simply incorrect. The facts establishing the Board’s obstruction 

of plaintiffs’ participation in the decisionmaking process and the denial of access to 

information, which are relevant to plaintiffs’ Equal Protection claim, are the same facts 

involved in plaintiffs’ Open Records Act claim. (See Appellants' Main Brief at 29 n.30, 53- 

54) The district court acted arbitrarily in dismissing this claim, and thereby abused its

discretion.



VI. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFFS’ 
BREACH OF CONTRACT CLAIM

In response to this Court’s decision in Lee v. Talladega Countv Bd. of Educ.. No. 

88-7471 (June 15. 1992 slip opinion), plaintiffs have filed a petition for rehearing en banc 

on this issue which is pending before the Court.

For the foregoing reasons, plaintiffs respectfully request that the district court’s rulings 

challenged above be reversed with directions that an order be entered directing the 

Talladega County Board of Education to make the attendance zone for the Training School 

(now Central High School) co-extensive with that established for the Stemley Bridge Road 

Elementary School and directing both the Talladega County Board of Education and the 

Talladega City Board of Education to stop all interdistrict transfers reinforcing the duality 

of the County school system. Plaintiffs further request that the Court reverse the dismissal 

of Counts I, V, and VI and remand for a full trial on these counts.

R p s n p r t f n l l v  < ; i ih m ittp r l

CONCLUSION

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
99 Hudson Street. 16th FI. 
New York, New York 10013 
(212) 219-1900

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

Dated: July 6, 1992

23



Certificate of Service

I hereby certify that on this j X . \  of July, 1992, 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

Stan Thornton, Esq.
Wooton Thornton, Carpenter, O’Brien 

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



* *  2 0 0 ' 3 9 b d  “I b l O l  * *

VIA FAX

MEMORANDUM
TO: NORMAN CHACHKIN

STEVE RALSTON 
DENNIS PARKER 
NAPOLEON WILLIAMS

FROM:
RE:

ALAN JE;NKIhf|.^\ 
JAN ELL ^ r {\k !  

MOOT IN EL£IT()n "V TALLADEGA COUNTY BOARD OF EDUCATION
DATE: NOVEMBER 25i, 1992

1992
I have an oral 
in Elston v . argument in 

Talladega the Eleventh Circuit on December 3 ,---------- ___---County Board of Education '!•>»< «memorandum is to invite you to attend a moot for that case on
?S?n?y ' *°ve:ober 30' 1992 ilt 2!0Cl P-m. in the large conference room (NYO). if you can attend, I would very much appreciate it. The 
briefs should be ettiched to this memorandum. Thank you.



In The United States Court Of Appeals 
For The Eleventh Circuit

QUINTON ELSTON, et al, 
Appellants,

V.
TALLADEGA COUNTY BOARD 
OF EDUCATION,

Appellees.

★
★
★
*
* CASE NO.s 92-6033
★
★
*
★
★

Appeal From The United States District Court 
For The Northern District Of Alabama

Brief Of Appellees
Talladega County Board Of Education And 

Its Individual Board Members

George C. Douglas, Jr.
Ralph D. Gaines, Jr.
Gaines, Gaines & Gaines, P.C. 
127 North Street 
Talladega, Alabama 35160 
(205) 362-2386

Attorneys for Appellees 
Talladega County Board of 
Education and its Individual 
Board Members



T a b le  Of C o n t e n t s

Table Of Contents ............................................
Table Of Citations .........................................
Statement Of Jurisdiction ...................................
Statement Of The Issues .....................................
Statement Of The Case .......................................
Statement Of The Facts .....................................
Standard Of Review .........................................
Summary Of Argument .........................................
Argument: ....................................................

1. The District Court's findings of fact are well- 
supported by the record, and not "clearly erroneous".
2. The District Court properly limited the scope of 
evidence to be submitted by the plaintiffs on remand.
3. This case is very different from U.S. v. Lowndes 
County.
4. The plaintiffs misinterpret several recent cases.
5. This litigation should come to an end. The record 
record demonstrates that the goals of Dowell and Freeman 
have been met by the Talladega County Board of Education.

Conclusion ..................................................
Certificate Of Service .....................................

i
ii

1

1

2

3
8
9
13

26
27

- l



S t a t e m e n t  Of J u r i s d i c t i o n

This Court has jurisdiction of this appeal under 28 U.S.C. 
Section 1291.

Statement Of The Issues

1. Was it clearly erroneous to find no discriminatory intent 
or disparate impact in this case, especially where the plaintiffs 
inferred intent from acts done while Talladega County Schools were 
under federal supervision, and objective statistics showed no 
disparate impact?

2. Did the trial court properly reject the plaintiffs' 
attempt to expand the issues on remand?

3. Were Counts 1, 4 and 5 properly dismissed where the trial 
showed no substantial rights of the plaintiffs were violated?

4. Is Count 1 (Breach of Contract) barred by this Court's 
decision in No. 88-7471, Lee, et al. v. Talladega County Board of 
Education, et al. (June 15, 1992)?

1



S t a t e m e n t  Of The C a se

Course Of Proceedings And Disposition Below
The Talladega County defendants object to the plaintiffs' 

argumentative statement of the case, and in particular to the 
claim at page 5 of their brief that the District Court's 
conclusions are primarily based on "...a record that is comprised 
overwhelmingly of stipulated facts and uncontroverted oral or 
documentary evidence". There was conflicting evidence on the main 
issues, and the evidence which was presented, conflicting or not, 
clearly permitted inferences contrary to those advanced by the 
plaintiffs.

These defendants also object to the statement at page 6 at 
plaintiffs' brief that "...in 1967, a three-judge court held that 
defendants were operating an unconstitutional, segregated school 
system and ordered state-wide desegregation". This statement has 
little relevance unless it is an attempt to tarnish present intent 
based on long-past conduct. The present superintendent and 
members of the Talladega County Board of Education are clearly not 
the same persons involved in the initial desegregation case, and 
it is the motivation of the present Talladega County defendants at 
issue here.

2



S t a t e m e n t  Of The F a c t s

The plaintiffs' "Statement of the Facts" is improperly 
argumentative and incorrectly states that most of the facts 
claimed are "uncontested" (Pltfs' Brief p. 7).

The Talladega County defendants strongly object to the 
statement at page 11 of plaintiffs' brief that "the controversy 
presented in this action is rooted in the longstanding position of 
the Talladega County Board of Education that in desegregating the 
school system, white children ought not be required to attend 
formerly or presently majority-black schools". The basis for this 
claim is a 1970 letter to the District Court from J. R. Pittard, 
the Talladega County School Superintendent at the time.
Plaintiffs label the present members of the Talladega County Board 
of Education as racists without any showing of their thoughts or 
attitudes, and without a single shred of credible evidence to 
support such a claim. If the defendants had made such a 
stereotyped statement about any of the plaintiffs then the 
defendants surely would have been labeled racists, and rightly so.

The plaintiffs' "Statement of the Facts" says there is a 
"pattern of school closings and grade restructuring since 1970" 
which proves that the Talladega County Board of Education is 
committed to avoiding sending white children to historically black 
schools. Their brief is conspicuously devoid of any factual 
explanation for how this "pattern" escaped the notice of both the

3



District Court and the plaintiffs at any time between 1970 and
1985, when the Board was dismissed by consent (Rl-7-1 et seq). In 
fact the "pattern" escaped detection for an additional three years 
until 1988 when the plaintiffs filed their first suit in this 
present round of litigation.

Additional facts omitted by the plaintiffs include the 
following:

Their own expert, Dr. Richard Mason, admitted the Board's 
construction plan for the Stemley Bridge Road Elementary School 
was "good" (R4-420); that his original analysis of the Board's 
plan was not valid because of incomplete underlying assumptions 
(id); and that the Board's proposed plan for renovation of the 
Talladega County Training School was also a "good plan". (R4- 
418);

The Alabama State Board of Education recommended the exact 
plan followed by the Board and challenged by the plaintiffs in 
this case, i.e.:

1. A new elementary school be built to combine the 
elementary grades of Idalia, Jonesview and Talladega County 
Training Schools;

2. That TCTS be reorganized as a 7-12 high school 
center, and then renovated; and

3. That Phyllis Wheatley Middle School be closed upon 
completion of the new Childersburg Middle School, which the Board 
did. (Dfdt. Ex. 3);

4



Regarding the "zone—jumping" claims, the racial balances for 
the three school systems in Talladega County (Talladega County, 
Talladega City and Sylacauga City) have not changed materially 
from 1968 through the date of the trial. (Dfdt. Ex. 4);

The Board's proposed plan would enhance integration, by 
combining the majority white elementary grades of Idalia and 
Jonesview with the virtually all-black elementary grades of TCTS 
to create the new Stemley Bridge Elementary School with a 
population that was approximately 75% black (Dfdt. Ex. 28; R3— 
275);

Augustus Elston, the lead plaintiff, admitted he had only 
attended one Board meeting and never asked to speak (R3—60);

Mr. Elston also admitted he had no specific facts to support 
his claims of racism or discriminatory motives and actions by the 
Board, and said it was a "...general kind of racism which we felt 
was happening throughout the county system" (R3-70);

Mr. Elston said the main basis for his claims of racial 
motivation in connection with the Stemley Bridge Road school was 
"...because of past practices. If you had not set a pattern of 
doing this I would not say it was racially motivated..." (R3-93);

The Talladega County Board of Education was dismissed from the 
Lee v . Macon litigation by consent on March 13, 1985. In an order 
approved by attorneys for the plaintiffs, the trial court made an 
express finding that the Talladega County School System had 
achieved unitary status and that the case was due to be dismissed

5



review of the District Court's findings of fact. However, as the 
Supreme Court pointed out in Anderson v. Bessemer City, 470 US 
564, 84 L.Ed.2d 518 (1985), and Cooter & Gell v. Hartmarx Corp.,
496 US ___, 110 L.Ed.2d 359 (1990), there are other
considerations besides whether there is a definite and firm 
conviction a mistake has been committed. As the Court said in 
Anderson,

"This standard plainly does not entitle a reviewing 
Court to reverse the finding of the trier of fact simply 
because it is convinced that it would have decided the 
case differently....If the district court's account of 
the evidence is plausible in light of the record viewed 
in its entirety, the court of appeals may not reverse it 
even though convinced that had it been sitting as the 
trier of fact, it would have weighed the evidence 
differently. Where there are two permissible views of 
the evidence, the factfinder's choice between them 
cannot be clearly erroneous....
This is so even when the district court's findings do 
not rest on credibility determinations, but are based 
instead on physical or documentary evidence or 
inferences from other facts....Rule 52(a) does not make 
exceptions or purport to exclude certain categories of 
factual findings from the obligation of a court of 
appeals to accept a district court's findings unless 
clearly erroneous.
When findings are based on determinations regarding the 
credibility of witnesses, Rule 52(a) demands even 
greater deference to the trial court's findings; for 
only the trial judge can be aware of the variations in 
demeanor and tone of voice that bear so heavily on the 
listener's understanding of and belief in what is 
said....When a trial judge's finding is based on his 
decision to credit the testimony of one of two or more 
witnesses, each of whom has told a coherent and facially 
plausible story that is not contradicted by extrinsic 
evidence, that finding, if not internally inconsistent, 
can virtually never be clear error."
84 L.Ed.2d at 528-530.

9



establish beyond dispute that the racial balances in Talladega 
County school systems have not changed materially since 1968. 
Further, several of the challenged actions, such as closure of 
Hannah Mallory, Idalia, Jonesview and Talladega Elementary 
Schools, and the construction of the new Stemley Bridge Road 
School, were recommended by the Alabama State Department of 
Education. The plaintiffs' own expert admitted that the 
defendants' plan to build the new Stemley Bridge Road School and 
renovate the Talladega County Training School for grades 7-12 were 
good. Finding in favor of the defendants on this record simply 
cannot be credibly claimed to be clearly wrong.

The District Court did not abuse its discretion in dismissing 
the claims for breach of contract, violation of the First 
Amendment, or violation of the Alabama Open Records Act (Count 1,
4 and 5). The breach of contract claim was a restatement of the 
discrimination claim. This claim is also foreclosed by this 
Court's finding in Lee, et al. v. Talladega County Board of 
Education, No. 88-7471, that the 1985 stipulation of dismissal and 
resolution were neither consent decrees nor settlement 
agreements. (See Appendix).

The Trial Court could have reasonably concluded that Counts 4 
and 5 (alleged First Amendment and Open Records Act violations) 
did not arise from a common nucleus of operative facts, and 
therefore were not appropriate for resolution in this case under 
the doctrine of pendent jurisdiction.

12



Argument

1. The District Court's findings of fact are well- 
supported by the record, and not "clearly erroneous".

The plaintiffs claim that the trial court "simply ignored" 
evidence which they view as "classic evidence of discrimination". 
But in trying to hurdle the clearly erroneous rule, they 
substantially overstate their claims.

For example, they allege a "pattern of discriminatory school 
closings" in Talladega County that stretches back to 1968. But 
they offered no explanation either at trial or here as to how this 
"pattern" escaped the notice of both the District Court and the 
plaintiffs while Talladega County Schools were under federal 
supervision from 1970-1985. Further, plaintiffs offer no 
explanation for why this pattern was not previously identified and 
objected to at the time Talladega County Schools were dismissed by 
consent in March 1985, with an express finding (stipulated by the 
plaintiffs) that Talladega County had achieved a unitary school 
system.

A much more plausible explanation is that the plaintiffs 
wanted those schools closed at the time and predominantly white 
schools integrated. These schools were obviously closed either by 
consent or by order of the District Court, and could not have been 
closed unilaterally or for discriminatory motives as the 
plaintiffs allege. The plaintiffs cite no authority for how a

13



"pattern" of school closings submitted to and approved by the 
plaintiffs and the District Court can form the basis of a 
discrimination claim after a school system has been found unitary 
and dismissed. As this Court said in Lee v. Talladega County 
Board of Education, No. 88-7471 (June 15, 1992)

"The attainment of unitary status means that the school 
authorities have remedied their constitutional 
violation."
(Slip op. p. 2732).

The plaintiffs also allege the Board's "failure to respond to 
black parents' efforts to participate in the decision making 
process". First, based on the evidence at trial the District 
Court could have reasonably concluded the plaintiffs' claims were 
not representative of the black community at large in Talladega, 
but were confined to the relatively few black parents aligned with 
the lead plaintiff Augustus Elston.

Moreover, there was no evidence that the Talladega County 
Boaxd withheld or obstructed the flow of information or 
participation by the parents in Board meetings because of their 
race. In fact the lead plaintiff Augustus Elston testified that 
he had only attended one Board meeting, and did not ask to speak 
at that meeting. (R3-60). There was no other evidence presented 
by the plaintiffs that any of them had requested participation or 
the opportunity to speak at a Board meeting. Mr. Elston was told

14



view of the evidence. It is certainly within the "broad range of 
permissible conclusions" allowed by the record. Cooter & Gell,
110 L.Ed.2d at 378-379.

2. The District Court properly limited the scope of 
evidence to be submitted by the plaintiffs on remand.

The plaintiffs claim the District Court should have allowed 
them to show on remand that the Board declined to modify a 
Training School attendance zone as they requested. Plaintiffs 
cite no authority which obligates the Board to consult with them 
as to attendance zone boundaries or obtain their approval on this 
or any other school matter. Moreover, they presented no facts 
which would even begin to show that this zone modification would 
tend to reestablish segregation or otherwise be a violation of the 
Fourteenth Amendment's Equal Protection Clause.

This is not an ongoing desegregation case in which a federal 
court has retained continuing general supervision of the Talladega 
County Schools. Lee v. Talladega County Board of Education, No. 
88-7471 (Appendix). It is a case in which specific allegations of 
specific discrimination and other wrongful acts were alleged but 
not proven. There was no holding by this Court on the prior 
appeal (No. 89-7777) that any of the District Court's findings 
were clearly erroneous, and accordingly it was within the 
prerogative of the District Court to limit the issues on remand as

17



it did. The fact that the plaintiffs had no additional evidence 
to offer on the issues which were tried by the District Court 
simply illustrates the lack of substance to their claims.

3. This case is very different from U .S . v . Lowndes 
County.______________________ ________________________

The facts in this case are nothing like those in United States 
v. Lowndes County Board of Education, 878 F.2d 1301 (11th Cir. 
1989). In that case, the operative facts noted by this Court 
were:

* The students crossing attendance zones were virtually all 
white;

* The Lowndes County system had become "increasingly black" 
as the probable result of white transfers;

* The cumulative effect of these transfers on the gaining 
school system was 9.3%, and the students were leaving a school 
system which was majority black;

* When the suit was filed, Lowndes County had not been 
declared unitary or discharged from its 1973 desegregation decree; 
and

* The transfers increased the racial identifiability of the 
schools involved. (878 F.2d at 1302-1305).

In contrast to Lowndes County, the undisputed evidence in this 
case was that the racial balances in Talladega County schools had

18



not changed since 1972, and had remained at a constant 43% black 
(Dfdt. Ex. 4; R3-282). Moreover, Talladega City schools, which 
the plaintiffs alleged to be a gaining system, had become more 
black over the years, from approximately 36% black in 1968, to 40% 
black in 1976-77, to approximately 45% black at the time of trial 
(Dfdt. Ex. 4; R3-139). Sylacauga City schools, the only other 
public system which could gain from the alleged zone-jumping, went 
from 32% black in 1968 (Dfdt. Ex. 4) to approximately 34% black at 
the time of the trial (R4-531), and the transfer students accepted 
by Sylacauga City schools were in almost exact proportion to its 
racial balance. (R4-534 to 536).

This evidence clearly supports the trial court's finding that 
to whatever extent some "zone-jumping" might be occurring, it did 
not change significantly the racial composition of either the 
Talladega County or the Talladega City systems. (Rl-93-20). 
Accordingly, there is simply no basis for the plaintiffs' claim 
that the alleged zone-jumping increases the "duality" of Talladega 
County or Talladega City School systems. The racial balances of 
all three public school systems in Talladega County clearly show 
that whatever transfers may be occurring are not increasing the 
"racial identifiability" of the schools. U.S. v. Lowndes County 
Board of Education, 878 F.2d at 1305.

Further, there was not a Singleton provision in effect as to 
Talladega County after the March 1985 dismissal as the plaintiffs 
claim. Lee v. Talladega County Board of Education, No. 88-7471 
(See Appendix).

19



The Talladega County schools were found unitary and released 
from court supervision March 13, 1985. Lee v . Talladega County, 
supra, slip op. at 2733. Accordingly, under the plain holding of 
Board of Education of Oklahoma City Public Schools v. Dowell, 59
U.S.L.W. 4061, ___ US ___, 112 L.Ed.2d 715 (1991), the Board did
not need further court authorization for student assignments:

"A school district which has been released from an 
injunction imposing a desegregation plan no longer 
requires court authorization for the promulgation of 
policies and rules regulating matters such as assignment 
of students and the like, but it of course remains 
subject to the mandate of the Equal Protection Clause of 
the Fourteenth Amendment."
59 U.S.L.W. at 4065.

This Court's opinion in U .S. v . Lowndes County recognized that 
not every school in every community must always reflect the racial 
composition of the school system as a whole, especially where a 
different proportion in one part of a county is due to demographic 
factors. 878 F.2d at 1305. The Talladega County Training School 
is predominantly black, and has been throughout the entire period 
of federal supervision, due to the fact that it is located in a 
predominantly black area of Talladega County (R4-313,314). Unless 
the plaintiffs claim their predecessors and the District Court 
were totally asleep at the switch from 1970 to 1985, the fact that 
the Training School has been predominantly black during that time 
would clearly indicate (a) that it is due to the demographics of

20



that particular part of the County; (b) that it was impossible to 
desegregate under any reasonable plan previously examined; and (c) 
that its predominantly black make-up was acceptable to the 
plaintiffs as well as the District Court from 1970-1985.

4. The plaintiffs misinterpret several recent cases.

(a) Lee v. Anniston City School System, 737 F.2d 952 (11th Cir. 1984):

Plaintiffs' discussion of this case implies it required 
certain factors to be considered in what plaintiffs claim to be a 
"school closing case". They imply that this Court adopted some 
sort of "decision making process that involved active 
participation by both the white and black citizens" as a 
prerequisite to approving school construction plans. (Pltf's 
Brief p. 40). In fact there is no requirement in this case or any 
other authority that an elected school board consult with ad hoc 
parents groups or educational policy. (It may be good politics but 
it isn't mandated by law).

The Court's opinion in the Anniston case stated that 
"...School authorities have the primary responsibility for 
elucidating, assessing and solving these problems", and that the 
courts must respect the "... interest of state and local 
authorities in managing their own affairs, consistent with the 
Constitution". 737 F.2d at 955, citing Milliken v. Bradley, 433

21



US 267, 281, 53 L.Ed.2d 745 (1977). The Court noted that the 
Anniston School System had a history of good faith compliance and 
had operated a unitary system in Anniston for more than 10 years. 
737 F .2d at 956. In discussing the adoption of the Board's plan 
in Anniston and the decision making process, this Court was simply 
pointing out that the Anniston School Board had acted reasonably 
and that there was no evidence its plan was racially motivated.
737 F .2d at 957.

The plaintiffs' arguments here permit the inference they are 
seeking more than the democratic process entitles them to, i.e., 
the right to dictate to the Board what they will or will not 
accept, accompanied by the threat of a lawsuit if the Board 
refuses to allow a representative of the plaintiffs' group to sit 
as a supernumerary board member. As a practical matter, what the 
plaintiffs are seeking is to override the Board's decisions and 
impose their views about Talladega County Training School's 
utilization on the community.

(b) Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524 
(11th Cir. 1983)s

This case does not support the plaintiffs' claim that it was 
an abuse of discretion for the trial court to decline pendent 
jurisdiction. Their argument fails to acknowledge that one of the 
prerequisites to the exercise of pendent jurisdiction is that the 
state claim derives "...from a common nucleus of operative fact".

22



/

Phillips v. Smalley Maintenance Services, Inc., 711 F.2d at 1531, 
footnote 4, citing United Mine Workers v. Gibbs, 383 US 715, 725, 
16 L.Ed.2d 218 (1966). The Alabama Open Records Acts claim 
clearly does not arise from the same facts as the school 
construction and zone-jumping claims. The trial court could 
reasonably have concluded that this claim was better asserted in a 
separate action.

(c) Los Angeles Branch NAACP v. L. A. Unified School District,750 F.2d 731 (9th Cir. 1984):

The plaintiffs cite this case in support of their claim that 
evidence relating to past discriminatory practices is admissible 
on their present discrimination claims, and that they therefore 
should have been allowed to show the alleged "pattern of school 
closings" which occurred prior to the 1985-1986 school year. 
(Pltf's Brief p.36-37).

This case actually supports the trial court's ruling in this 
case, because what the plaintiffs were actually attempting to do 
was relitigate the motive and intent behind the school closings 
which occurred from 1970-1985 while the Talladega County Schools 
were under federal supervision. Los Angeles Branch NAACP held the 
doctrine of res judicata precluded the plaintiffs from litigating 
an issue which was or could have been litigated in a prior 
proceeding. 750 F.2d at 745. ("There is no manifest injustice in 
denying plaintiffs the opportunity to relitigate a part of a claim

23



when they had a previous opportunity to do so but elected against 
it") .

The plaintiffs here are trying to relitigate actions, motives, 
and attitudes which are in the past, in a period on which the 
books are closed. The District Court's handling of this case 
rejected the plaintiffs' attempts to revisit old issues, and so 
should this Court. As this court noted in Lee v. Talladega 
County, a federal court's regulatory control of local school 
system should not extend past the time required to remedy past 
intentional discrimination, and the attainment of unitary status 
means the school system has remedied the violation. Slip op. at
2732, citing Dowell, supra, and Freeman v . Pitts, ___  US __ , 118
L.Ed.2d 108 (1992).

For a similar holding see Bronson v. Board of Education, 687 
F.2d 836 (6th Cir. 1982), in which the Sixth Circuit held that 
plaintiffs in a desegregation case could not reopen the issue of 
unlawful intent during a period which had previously been 
litigated and issues concerning "...the actions, inactions or 
policies of the board prior to that date" had been decided. 687 
F .2d at 843.

5. This litigation should come to an end, because the 
record demonstrates that the goals of Dowell and Freeman 
have been met by the Talladega County Board of 
Education. ____________________________________

After the Supreme Court's decision in Board of Education of

24



}

Oklahoma City Public Schools v. Dowell, 59 U.S.L.W. 4061, US
---, 112 L.Ed.2d 715 (1991), the dispositive issue in determining
whether a desegregation case should terminate is

"...whether the Board had complied in good faith with 
the desegregation decree since it was entered, and 
whether the vestiges of past discrimination had been eliminated to the extent practicable."
59 U.S.L.W. at 4065.

The Talladega County Board of Education met this test in 
!985. Lee v . Talladega County Board of Education, slip op. at p. 
2^32—2733. Once the Board was dismissed in 1985, its subsequent 
actions were to be measured by "appropriate equal protection 
principles". Dowell, supra, 59 U.S.L.W. at 4065. In this case, 
the plaintiffs have simply not shown any facts tending to 
establish that any of them have been denied the equal protection 
of law by the defendants. The Supreme Court's opinion in freeman
v. Pitts, 60 U.S.L.W. 4286, ___ US ___, 118 L.Ed.2d 108 (1992),
recognizes that

"Neither school authorities nor district courts are 
constitutionally required to make year-by-year 
adjustments of the racial composition of student bodies 
once the affirmative duty to desegregate has been 
accomplished and racial discrimination through official action is eliminated from the system."
60 U.S.L.W. at 4294.

25



V

Summary

The record in this case shows the continuing good faith 
efforts of the Talladega County Board of Education to provide a 
quality education for all of the children attending public school 
in the Talladega County System regardless of race. It is patently 
unfair for the plaintiffs to accuse these defendants of racial 
motivation in their construction of the new Stemley Bridge Road 
School when its effect is to provide a new quality facility which 
combines two majority white elementary schools with one majority 
black school. As the Supreme Court said in Freeman v . Pitts

"...In one sense of the term, vestiges of past 
segregation by state decree do remain in our society and 
in our schools. Past wrongs to the black race, wrongs 
committed by the State and in its name, are a stubborn 
fact of history. And stubborn facts of history linger 
and persist. But though we cannot escape our history, 
neither must we overstate its consequences in fixing 
legal responsibilities."
60 U.S.L.W. at 4294.

Conclusion

This Court should affirm the District Court's findings in 
favor of the defendants.

Respectfully submitted this day of , 1992.

26



/

Gaines, Gaines & Gaines, P .C . 
127 North Street 
Talladega, Alabama 35160 
(205) 362-2386
Attorney for Appellees

Certificate Of Service

I hereby certify that I have served a copy of the foregoing on 
all counsel of record by U.S. Mail, prepaid and properly addressed 
this l°i 721 day of m w , f _______, 1992.

Janell M. Byrd, Esq. 
1275 "K" Street, N.W. 
Suite 301
Washington, DC 20005

Stanley Thornton, Esq. 
Wooten, Thornton, Carpenter, 
O'Brien & Lazenby 
P. 0. Box 277 
Talladega, AL 35160

Cleophus Thomas, Jr., Esq. 
Reid & Thomas 
P. O. Box 2303 
Anniston, AL 36202

27