MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE.
"[T]he future of our world revolves around public education. There's nothing more important that we do" than "educat[ing] our children." (Doc. 1124, p, 180). That proposition, offered by a member of the Gardendale Board of Education, is perhaps the one point on which all of the parties in this school desegregation case agree. The proposition is sound. In its landmark decision in Brown v. Board of Education, the United States Supreme Court recognized that public education is critical for the welfare of our nation's children. The Supreme Court stated that public education:
347 U.S. 483, 493, 74 S.Ct. 686, 98 S.Ct. 873 (1954).
Each of the parties in this case—the parents who serve as the private plaintiffs, the United States, the Jefferson County Board of Education, and the Gardendale Board of Education—is trying to secure the best public education for the students whom the party serves. Though they share the same goal, the parties' strategies for accomplishing the goal are at odds.
Many citizens in the City of Gardendale prefer a municipal public school system to the county-wide system under which the four public schools in the Gardendale community currently operate. Through a grassroots effort, those citizens persuaded the Gardendale City Council to create the Gardendale Board of Education. The Gardendale Board of Education then selected a superintendent, and the superintendent has formulated a plan for Gardendale's four schools to separate from the Jefferson County public school district. The Gardendale Board has asked the Court to approve the superintendent's plan of separation. This opinion resolves the Gardendale Board's motion to separate. (Doc. 1040).
The Court's role in assessing Gardendale's proposed separation from the Jefferson
The Court's desegregation order is designed to remedy the injury that institutionalized racial segregation causes. The Supreme Court's holding in Brown is simple and unaffected by the passage of time: when black public school students are treated as if they are inferior to white students, and that treatment is institutionalized by state or municipal action, the resulting stigma unconstitutionally assails the integrity of black students. That racial stigma is intolerable under the Fourteenth Amendment. That was true in 1954, and it is true today. The Fourteenth Amendment still requires equal protection of school children under the law. State and municipal action that "generates a feeling of inferiority" in African-American children and treats the students and their parents as second-class citizens violates the Fourteenth Amendment and jeopardizes those families' equal right to pursue a public education and all of the opportunities that stem from public education. 347 U.S. at 494, 74 S.Ct. 686.
That injury prompted the Supreme Court to hold in Brown that separate white and black schools are inherently unequal. That injury compelled the Supreme Court's mandate in Green v. County School Board of New Kent County, Virginia that all vestiges of racial segregation in public schools must be eliminated "root and branch." 391 U.S. 430, 438, 88 S.Ct. 1689, (1968). And that injury led And that injury led the Supreme Court to prohibit a municipal separation in Wright v. Council of City of Emporia because, under the circumstances, the message of inferiority conveyed by the proposed separation could not "have escaped the Negro children in the county" and that message was likely to have an "adverse psychological effect" on black students. 407 U.S. 451, 466, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972).
The Gardendale Board argues that "things have changed" since the Supreme Court decided Brown, Green, and Wright, that federal courts are "`tired of school desegregation litigation,'" and that "courts must open their eyes to the conditions of the present when they consider" whether the purported burdens that federal court enforcement of desegregation decrees places "on federalism and the Tenth Amendment are still justified." (Doc. 1097, pp. 17, 18 (quoting 1 Ronna Greff Schneider, Education Law § 5:10 (Westlaw 2016 update)), 30). The Gardendale Board urges the Court to focus its constitutional analysis on a series of decisions that the United States Supreme Court has issued since 1991 and to relegate to the annals of history "older decisions like Green and Wright" and "their aged progeny like Ross [v. Houston Independent School District, 559 F.2d 937 (5th Cir. 1977)] and Stout [v. Jefferson County Board of Education, 466 F.2d 1213 (5th Cir. 1972)]." (Doc. 1097, pp. 17, 30). By logical extension, Brown v. Board of Education, issued in 1954, must fall into the category of civil rights opinions that the Gardendale Board considers out of date.
The Court disagrees with the Gardendale Board's attempt to minimize and compartmentalize early school desegregation decisions. Those decisions are relevant and
Therefore, to shed light on the complexity of the issues surrounding Gardendale's motion and to gauge just how much "things have changed" in public education in Jefferson County since 1971, this opinion traces the precedent that the Supreme Court and the Eleventh Circuit Court of Appeals have established from 1954 to the present. That precedent supplies the legal framework for the Court's analysis of Gardendale's motion to separate. The details of the school desegregation opinions count; short quotes carved from opinions and presented out of context do not adequately convey the holdings in those decisions. The Court supplies that context to help the members of the Gardendale Board, the members of the Jefferson County Board, and the citizens impacted by this decision understand the rationale for the Court's decision.
Because the development of the law of public school desegregation is intertwined with the procedural and factual background of this case, the Court will weave the two together before stating its findings of fact and conclusions of law. The Court examines this material with an eye toward answering a significant question that Gardendale's separation effort presents, namely what becomes of African-American students zoned for decades to a particular feeder pattern for purposes of desegregation when federal oversight nears an end.
The story of school desegregation begins with the United States Supreme Court's decision in Brown v. Board of Education of Topeka. The students in that action sought "the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis." 347 U.S. at 487, 74 S.Ct. 686. Chief Justice Warren explained that in the years following the adoption of the Fourteenth Amendment, black and white schools had "been equalized, or [were] being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other `tangible' factors." Id. at 492, 74 S.Ct. 686. Therefore, to determine whether state laws that required or permitted segregation of public school students according to race violated the Fourteenth Amendment,
To evaluate the effect of racial segregation on public education, the Supreme Court examined a series of sociological studies. Those studies were entitled "Effect of Prejudice and Discrimination on Personality Development," "Personality in the Making," "The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion," "What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?," "Educational Costs, in Discrimination and National Welfare," "The Negro in the United States," and "An American Dilemma." See 347 U.S. at 494 n. 11, 74 S.Ct. 686.
Based on these studies, the Supreme Court concluded that racially separate facilities are "inherently unequal" because of the adverse psychological impact that segregated schools have on African-American children. 347 U.S. at 495, 74 S.Ct. 686. Extending to public elementary and secondary schools the rationale that it had applied in cases concerning institutions of higher learning, the Supreme Court held that separating black students "from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Id. at 494, 74 S.Ct. 686. Citing findings from the district court, the Supreme Court added: "The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group." Id.
In Brown II, the Supreme Court considered how best to implement the principles that the Court articulated in Brown I. The Supreme Court assigned to local school authorities the "primary responsibility for elucidating, assessing, and solving" the problems associated with desegregation and instructed lower federal courts "to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles." Brown v. Bd. of Educ., 349 U.S. 294, 299, 75 S.Ct. 753, 99 S.Ct. 1083 (1955) (Brown II). The Supreme Court directed district courts to fashion equitable remedies that would provide admission to public schools "on a racially nondiscriminatory basis with all deliberate speed." Id. at 301, 75 S.Ct. 753.
Ten years after the Supreme Court directed federal courts to act "with all deliberate speed" to desegregate public schools, the Jefferson County system remained racially segregated. On June 4, 1965, Linda Stout's father filed a complaint and a motion for preliminary injunction in which he asked this Court, on behalf of his daughter and a class of African-American public school students, to desegregate the Jefferson County public school system. (Doc. 2; Doc. 3; Doc. 1118, ¶ 3).
A few weeks later, this Court issued an injunction that prohibited the Jefferson County Board of Education and the individual board members "from requiring segregation of the races in any school under their supervision" and ordered public
Citing a 1963 opinion from the Fifth Circuit Court of Appeals, this Court stated that the Jefferson County Board of Education was responsible for "initiating desegregation" and concluded:
(June 24, 1965 Memorandum Opinion, p. 3, citing Armstrong, et al. v. Bd. of Educ. of City of Birmingham, Jefferson Cty., Ala., et al., 323 F.2d 333 (5th Cir. 1963)).
The Court gave the Jefferson County Board of Education one week to submit a plan "to make an immediate start in the desegregation of the schools of the Jefferson County public school system" by "effectively provid[ing] for the carrying into effect . . . of the Alabama Pupil Placement Law as to all school grades without racial discrimination. . . ." (June 24, 1965 Injunction and Order, pp. 1-2, cited in Doc. 1, p. 2). The Alabama Pupil Placement Law authorized black students to apply to transfer to a school attended by white students. (June 24, 1965 Memorandum Opinion, p. 3). Thus, this Court placed the burden of desegregation on black students.
On July 12, 1965, the United States Attorney General filed a motion to intervene as a plaintiff. (Doc. 1, p. 2—July 12, 1965 motion). The Court granted the motion and added the United States as a plaintiff in this action. (Doc. 1, p. 2—July 12, 1965 docket order).
To fulfill its obligation to desegregate the elementary, middle, and high schools in the Jefferson County public school system, the Jefferson County School Board adopted a "freedom of choice" plan. On July 23, 1965, this Court approved the plan. (Doc. 1, p. 5—July 23, 1965 docket order). The plan, which the Jefferson County Board submitted "as directed and ordered" but without "consent or agree[ment]," called for black students entering the first grade to report to black schools to register. (June 30, 1965 desegregation plan, p. 1, cited in Doc. 1, p. 2). White students entering the first grade were to report to white schools to register. Students could then apply for a transfer to any elementary school "whether formerly attended only, or predominantly, by White children, or only by Negro children." (Id. at p. 7, cited in Doc. 1, p. 2).
The private plaintiffs and the United States challenged the Board's plan in the Fifth Circuit Court of Appeals. (Doc. 1, p. 5—August 5 & August 11, 1965 docket entries). In August 1965, the Fifth Circuit vacated the plan and remanded the case to this Court for further proceedings. (Doc. 1, p. 5). The freedom of choice plan went through a number of revisions and a number of appeals between the fall of 1965 and 1968. (Doc. 1, pp. 5-8).
In Green v. County School Board of New Kent County, Virginia, the Supreme Court explained that anyone who thought the mandate of the Brown decisions concerned only race-neutral public school admissions was mistaken. The Supreme Court stated:
391 U.S. at 435-36, 88 S.Ct. 1689 (citation omitted).
In Green, the Supreme Court considered whether a "freedom-of-choice" desegregation plan fulfilled a public school district's constitutional obligation to admit students "on a non-racial basis" per Brown II. 391 U.S. at 431-32, 88 S.Ct. 1689. The Court found that the freedom-of-choice plan impermissibly shifted the responsibility for desegregation from the defendant school board to black students and their parents. Id. at 441-42, 88 S.Ct. 1689. The Supreme Court added that a public school system must not only admit students on a non-racial basis but also "abolish its dual, segregated system" altogether. Id. at 437, 88 S.Ct. 1689.
391 U.S. at 435, 88 S.Ct. 1689. Penning the words that became the litmus test for public school desegregation, Justice Brennan stated that school boards that had operated "state-compelled dual systems" were "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Id. at 437-38, 88 S.Ct. 1689. The Supreme Court admonished: "The constitutional rights of Negro school children articulated in Brown I permit no less than this; and it was to this end that Brown II commanded school boards to bend their efforts." 391 U.S. at 438, 88 S.Ct. 1689.
The Supreme Court found that the defendant school system had deliberately perpetuated an unconstitutional dual system by waiting ten years after the Brown II decision to adopt even a freedom-of-choice plan to begin the work of desegregation, "compound[ing] the harm of such a system." 391 U.S. at 438, 88 S.Ct. 1689. The Supreme Court held that such delays were "no longer tolerable." Id. (citing Griffin v. Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 234, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964)).
The Supreme Court instructed public school systems to "transition to a unitary, nonracial system of public education" and abolish "`the [former] system of segregation and its effects.'" 391 U.S. at 436, 440, 88 S.Ct. 1689 (quoting Bowman v. Cty. Sch. Bd. of Charles City Cty., 382 F.2d 326, 333 (4th Cir. 1967) (Sobeloff, J., concurring)). The Supreme Court reminded lower courts that they had "`not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.'" Green, 391 U.S. at 438 n. 4, 88 S.Ct. 1689 (quoting Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965)) (emphasis added). The Supreme Court held that public school systems could use a freedom-of-choice plan if "it offer[ed] real promise of . . . desegregation[,]" but "if there are reasonably available other ways, such for illustration as
On March 7, 1969, this Court overruled a motion in which the United States and the private plaintiffs asked the Court for an order directing the Jefferson County School Board "to adopt and implement a plan of pupil assignments, based on criteria other than freedom of choice." (Doc. 1, p. 10—March 7, 1969 order).
In October 1969, more than 15 years after Brown I, the United States Supreme Court issued a short per curiam opinion. Citing its decision in Green, the Supreme Court stated:
Alexander v. Holmes Cty. Bd. of Educ., 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969) (citing Green, 391 U.S. at 438-39, 88 S.Ct. 1689, and Griffin, 377 U.S. at 234, 84 S.Ct. 1226).
In the wake of Alexander, the Fifth Circuit consolidated appeals in thirteen school desegregation cases, including this case, and examined the desegregation efforts in the thirteen school districts. Singleton v. Jackson Mun. Separate Sch. Dist., 419 F.2d 1211 (5th Cir. 1969). The Fifth Circuit held that "[b]ecause of Alexander [], each of the cases here . . . must be considered anew, either in whole or in part, by the district courts[,]" and the Fifth Circuit reminded the lower courts that the Alexander decision "sent the doctrine of deliberate speed to its final resting place." 419 F.2d at 1216.
The Fifth Circuit explained to the district courts that "converting to a unitary system involved basically the merger of faculty and staff, students, transportation, services, athletic and other extra-curricular school activities" in white and black schools. 419 F.2d at 1216. The Court of Appeals directed all of the school districts, including Jefferson County, to develop desegregation plans that addressed student assignment, faculty and staff, transportation, and school construction and site selection. The plans had to contain majority-to-minority transfer provisions that would allow students to transfer from a school where their race was in the majority to a school where their race was in the minority. Id. at 1217-18. To give black parents a voice in the school districts, the Fifth Circuit directed district courts to "suggest the advisability of biracial advisory committees to school boards in those districts having no Negro school board members." Id. at 1217 n. 2.
The Court of Appeals held that the desegregation plan that Jefferson County had presented in the consolidated appeal did not "reflect any substantial change" from a plan that the Court of Appeals had
Less than one month after the Fifth Circuit issued its opinion in Singleton, the City of Homewood formed a municipal board of education. (Doc. 1, p. 17—June 8, 1970 motion, attachment C). Before Homewood formed a municipal board of education, there were three elementary schools and a junior high school in the Homewood feeder pattern. Historically, these four schools educated white children. Another school in the Homewood feeder pattern, Rosedale School, historically educated black students in grades 1-12. White high school students living in the City of Homewood attended Shades Valley High School, which was located outside of Homewood's city limits. (Doc. 1, p. 17—June 8, 1970 Memorandum of Law).
The Homewood Board of Education and the Jefferson County Board of Education executed an agreement in February 1970 pursuant to which Jefferson County agreed to transfer to Homewood the schools located in the City of Homewood that educated white children. (Doc 1, p. 17—June 8, 1970 motion, attachment C, ¶ 1). The agreement called for the City of Homewood to convey the Rosedale School to the Jefferson County school system. (Id. attachment C, ¶ 3). Jefferson County converted the Rosedale School to a "curriculum center." As of June 1970, 10% of the student population of the Homewood public school system was black; 26% of the Jefferson County student population was black. (Doc 1, p. 17—June 8, 1970 Brief, p. 12).
The Vestavia Hills City Council formed a municipal board of education on May 4, 1970. (Doc 1, p. 17—June 8, 1970 motion, attachment C). Before Vestavia formed a municipal board of education, there was one elementary school and one junior high school in Vestavia. Through the 1970-71 academic year, the elementary school had no black students. Two percent of the student population in the junior high school was black, but none of those black students resided within Vestavia's municipal limits. Specifically, the junior high served 1,559 white students and 13 black students.
The United States filed motions in which it asked this Court to add the Homewood Board of Education and the Vestavia Hills Board of Education as defendants in this action. (Doc. 1, p. 17—June 8, 1970 motions). This Court conducted a two-day evidentiary hearing concerning the motions. (Doc. 1, p. 18—July 1, 1970 docket entries). The Court held a supplemental hearing concerning the Vestavia Hills school system. (Doc. 1, p. 18—July 23, 1970 docket entry).
On July 13, 1970, the Court entered an order in which it added the Homewood municipal system as a party defendant and set desegregation requirements for that municipal system. (Doc. 1, p 18—July 13, 1970 docket order). The order required the Homewood school system to "take affirmative steps to eliminate all vestiges of the dual system" that had existed in Jefferson County and to address all of the Green factors as they pertained to the Homewood system. The Court ordered the municipal district to allow majority-to-minority transfers, and the Court retained jurisdiction over the Homewood system to ensure compliance with the desegregation order. (Doc. 1, p. 18—July 13, 1970 docket order).
The Court added the Vestavia Hills Board of Education as a party defendant on July 23, 1970. (Doc. 1, p. 19—July 23, 1970 docket order). The Court "enjoin[ed] the Vestavia Hills Board of Education and [its] members from failing to provide equal educational opportunity to all students residing in [the Vestavia Hills] system without regard to race. . . ." (Doc. 1, p. 19—July 23, 1970 docket order). The Court retained jurisdiction over the Vestavia Hills Board of Education "for the purpose of assuring implementation" of the Court's order. (Doc. 1, p. 19—July 23, 1970 docket order).
Midfield schools were operational by 1971. (Doc. 1, p. 21—July 1, 1971 motion concerning transfer of properties from Jefferson County to Midfield).
In Swann v. Charlotte-Mecklenburg Board of Education, the Supreme Court "defin[ed] in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once." 402 U.S. 1, 5, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).
Id. at 14, 91 S.Ct. 1267.
Examining generally the role that equitable principles should play in school desegregation, the Supreme Court stated that lower courts should use equitable remedies "to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution[,]" but courts should exercise their equitable powers "only when local [school] authority defaults." 402 U.S. at 16, 91 S.Ct. 1267. When a district court invokes equitable principles to fashion a remedy, the remedy must be "reasonable, feasible and workable[,]" but the Supreme Court provided no rigid requirements for a particular remedy. Id. at 31, 91 S.Ct. 1267. The Supreme Court explained:
Id.
Turning from general principles to specific concerns, the Supreme Court addressed the topic of school construction. The Court found that school boards had used school construction to thwart desegregation. The Supreme Court held:
402 U.S. at 21, 91 S.Ct. 1267.
The Supreme Court then turned from the topic of school construction to the topic of racial demographics of student populations and examined four aspects of student assignments: racial ratios, racially identifiable schools within a district that also operates desegregated schools, non-contiguous zoning as a means of desegregation of student populations, and bussing to facilitate desegregation. With respect to racial quotas, the Court rejected the use of arbitrary quotas designed to create racial balance
With respect to racially identifiable schools, the Supreme Court explained that "[t]he constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole." 402 U.S. at 24, 91 S.Ct. 1267. Rather, "the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law." Id. at 26, 91 S.Ct. 1267. When a district court monitors a school district that includes schools "that are all or predominately of one race," the school boards:
Id. The Court added that in districts with schools that are predominantly white or black, a voluntary majority-to-minority transfer provision in a desegregation order "is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation." Id. To "be effective, such a transfer arrangement must grant the transferring student free transportation and space must be made available in the school to which he desires to move." Id. at 26-27, 91 S.Ct. 1267.
With respect to zoning, the Supreme Court acknowledged "the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city." 402 U.S. at 25, 91 S.Ct. 1267. The Supreme Court recognized that in the absence of a constitutional violation and a history of state-facilitated racial discrimination in public schools, it might be desirable to implement neighborhood school zones. But in a system that was obligated to eliminate a dual system, "the pairing and grouping of noncontiguous school zones is a permissible tool and such action is to be considered in light of the objectives sought." Id. at 28, 91 S.Ct. 1267. Finally, the Supreme Court held that transportation assistance was a necessary companion to non-contiguous zoning. The Supreme Court left to district courts the task of deciding when bussing was appropriate in a particular public school district. Id. at 29-31, 91 S.Ct. 1267.
At the conclusion of the Swann opinion, the Supreme Court offered guidance about the role that courts should play when, after a public school district achieved unitary status per Green and Alexander, student populations once again became racially identifiable. That role, the Supreme Court explained, depends on the cause of public school re-segregation. Where the mobility of members of a community causes re-segregation, "[n]either 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." 402 U.S. at 31-32, 91 S.Ct. 1267. But when evidence demonstrates "that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools," then a court
In the wake of the Swann decision, the Fifth Circuit vacated the desegregation plan in this case and ordered this Court to comply with Swann's mandate. Linda Stout, et al. v. Jefferson Cty. Bd. of Educ., 448 F.2d 403, 404 (5th Cir. 1971). The Court of Appeals directed this Court to adopt a desegregation plan that would govern not only the Jefferson County public school system but also the post-1965 municipal districts within Jefferson County. Id. (directing this Court to "implement a student assignment plan for the 1971-72 school term" which "encompasses the entire Jefferson County School District as it stood at the time of the original filing of this desegregation suit").
The Fifth Circuit authorized this Court to refuse to recognize splinter districts that "`hinder vindication of federal constitutional guarantees.'" 448 F.2d at 404 (quoting N. Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971)). The Fifth Circuit stated:
448 F.2d at 404. Explaining that it was concerned not only with discriminatory intent but also with disruptive effects, the Fifth Circuit stated: "The process of desegregation shall not be swayed by innocent action which results in prolonging an unconstitutional dual system. The existence of unconstitutional discrimination is not to be determined solely by intent." Id. at 404 n. 2. Finally, the Fifth Circuit instructed this Court to "implement fully" the Fifth Circuit's Singleton decision as the decision relates to "desegregation of faculty and other staff, majority to minority transfer policy, transportation, school construction and site selection, and attendance outside system of residence[,]" and the Fifth Circuit mandated annual reporting from the school boards subject to this Court's supervision. Id. at 404.
To comply with the Fifth Circuit's instructions, this Court ordered Jefferson County, Homewood, Vestavia Hills, and Midfield to "collaborate in preparing a uniform desegregation plan" that would apply to all of the school systems. (Doc. 1, p. 21—July 22, 1971 docket entry). The Court adopted a uniform desegregation plan on September 8, 1971. (Doc. 1, p. 22—September 8, 1971 docket entry). The Court described the order as a plan for desegregation of public schools "grounded on the division of [Jefferson] County into mandatory, generally contiguous, attendance zones." (December 3, 1971 Memorandum Opinion, p. 1, cited in Doc. 1, pp. 26-27). With the exception of "majority-to-minority" transfers and other narrow classes of transfers, attendance at schools other than a student's zoned school was prohibited under the order. (Id.). The September 1971 order has governed Jefferson County's efforts to meet its constitutional obligations for the past 45 years.
The September 1971 order addresses student assignments, school construction, attendance zones and alteration of zone lines, and transfers among the Jefferson County public schools and schools in the municipal public school systems in Jefferson County that formed after the Stout lawsuit began. (Doc. 226). The Gardendale zone was one of the 20 attendance zones created in the order. (Doc. 226, p. 2). There have been no significant modifications of the Gardendale attendance zone
The September 1971 order establishes criteria for municipal school systems that wish to separate from the Jefferson County system. Under a heading titled "Separate Systems," the order states:
(Doc. 226, pp. 8-9).
The September 1971 order contains a provision governing majority-to-minority transfers. The order states:
(Doc. 226, p. 7) (emphasis in original).
The September 1971 order requires the boards of education affected by the order to file with the Court reports in February and October of each year containing information concerning the race of students and teachers in each district and transfers. (Doc. 226, pp. 10-11).
In Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), the Supreme Court examined a district court's ability to prevent a municipal separation where, though the student population of the municipal splinter district would be desegregated, the creation of the district would negatively impact the county public school system's ability to obtain a dissolution of a desegregation order. The circumstances surrounding the constitutional issue in Wright were similar to the circumstances surrounding Gardendale's attempted separation.
The community of Emporia was dissatisfied with the way in which the county was distributing the proceeds of a sales tax to the public schools in the community. Consequently, in 1967, the community formed the City of Emporia, and the city assumed the responsibility under state law to educate the children living within its municipal boundaries. The city fulfilled this responsibility by implementing a sharing agreement with the county pursuant to which the children in the City of Emporia attended county schools, but the city contributed to the schools' finances, and the city was involved in selecting the county school superintendent. 407 U.S. at 454-55, 92 S.Ct. 2196.
The county school system had been under federal court oversight since 1965 because the public schools in the county had been segregated by law. After the Supreme Court issued the Green opinion, the private plaintiffs in Wright asked the district court to take additional steps to eliminate the vestiges of segregation from the county's schools. Two weeks after the district court entered a desegregation order, the city informed the county that the county's plans for the schools in the city were unacceptable, and the city indicated that it intended to begin operating the schools located within the city. Before making the decision to separate, representatives of the city neither met with representatives of the county to discuss concerns about the court-ordered student assignment plan nor approached the district court. 407 U.S. at 456-57, 92 S.Ct. 2196.
The record demonstrated that under the existing arrangement in which the county schools and city schools were paired, the student population of the school system was 34% white and 66% black. If the city were allowed to separate, the student populations for the city's schools would be 48% white and 52% black while the student population of the county schools would be 28% white and 72% black. 407 U.S. at 464, 92 S.Ct. 2196. The city had pledged to operate the municipal schools on a unitary basis, combining white and black students at every grade level. The district court enjoined the operation of the city system because the municipal system would frustrate implementation of the county desegregation order. Id. at 457-58, 92 S.Ct. 2196. The Fourth Circuit Court of Appeals reversed, and the Supreme Court accepted
Much like the Gardendale Board, the City of Emporia argued that because it had the right under state law to create a municipal school system, the district court could enjoin its effort to operate a municipal school system only if the state law that authorized separation was invalid, the municipal boundaries were drawn to exclude black students, or the city committed an independent constitutional violation. 407 U.S. at 459, 92 S.Ct. 2196. The Supreme Court rejected the city's argument. The Supreme Court held that the constitutional violation pursuant to which the district court could issue an injunction was the county's operation of a public school system segregated by law, a public school system of which the city "had always been a part." Id. The Supreme Court stated that because "the city and the county constituted but one unit for the purpose of student assignments during the entire time that the dual system was maintained, they were properly treated as a single unit for the purpose of dismantling that system." Id. at 459-60, 92 S.Ct. 2196. The Court found that the city's disagreement with the district court's plan for a unitary school system prompted the city's decision to separate, and, "[u]nder these circumstances, the power of the District Court to enjoin Emporia's withdrawal from that system need not rest upon an independent constitutional violation." Id. at 459, 92 S.Ct. 2196. The Supreme Court stated that if the proposed separation "would impede the dismantling of the dual system, then a district court, in the exercise of its remedial discretion, may enjoin [the separation] from being carried out." Id. at 460, 92 S.Ct. 2196.
The Supreme Court also rejected the Fourth Circuit's proposition that a district court should identify the "dominant purpose" of a municipal separation to determine whether the separation was permissible. The Supreme Court held that such an exercise was "as irrelevant as it [was] fruitless." 407 U.S. at 462, 92 S.Ct. 2196. The Supreme Court explained that the "existence of a permissible purpose cannot sustain an action that has an impermissible effect." Id.
The Supreme Court favorably cited appellate decisions in this case and in Lee v. Macon County Board of Education, 448 F.2d 746 (1971), in which the Fifth Circuit held that a district court could not approve a splinter district that would have a substantial adverse effect on the desegregation of the county public school system. 407 U.S. at 462, 92 S.Ct. 2196. The Supreme Court held that these decisions properly focused not on the motivation for or purpose of the separation "but on the effect of the action upon the dismantling of the dual school systems involved." Id. The Supreme Court stated that if government officials attempted to separate from a district that was attempting to fulfill its obligations under a desegregation order, the effort to separate "must be judged according to whether it hinders or furthers the process of school desegregation." Id. at 460, 92 S.Ct. 2196.
The Supreme Court provided instructions for the analysis of motions for municipal separations. First, "a court supervising the process of desegregation" does not "exercise its remedial discretion responsibly where it approves a plan that, in the hope of providing better `quality education' to some children, has a substantial adverse
Second, a district court may look beyond the racial statistics offered by the separating school system and consider collateral effects of a municipal separation. In Wright, the district court properly considered the fact that the Emporia school system probably would be more white than the city indicated because white students in private schools in the city probably would enroll in the public school system while the county system would be more black because white students in the county system would withdraw and attend private schools. 407 U.S. at 464-65, 92 S.Ct. 2196. But "[j]ust as racial balance is not required in remedying a dual system, neither are racial ratios the sole consideration to be taken into account in devising a workable remedy." Id. at 465, 92 S.Ct. 2196.
Finally, a district court should consider the timing of the decision to separate and the message that separation would send to black students impacted by the proposed separation. 407 U.S. at 465-66, 92 S.Ct. 2196. In Wright, the city decided to break from the county following a court order that would have mandated integration of the student bodies of the city's schools. The Supreme Court stated that "[t]he message of this action, coming when it did, cannot have escaped the Negro children in the county." Id. at 466, 92 S.Ct. 2196. Relying on Brown I, the Supreme Court reiterated that separating black children from their white contemporaries "`solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.'" Id. (quoting Brown I, 347 U.S. at 494, 74 S.Ct. 686). The Supreme Court held that the district court "could rationally have concluded that the same adverse psychological effect was likely to result from Emporia's withdrawal of its children from the Greensville County system." 407 U.S. at 466, 92 S.Ct. 2196. This effect existed even though the city had pledged to operate its schools on a unitary basis.
The Supreme Court conferred on district courts primary responsibility for evaluating all of the relevant factors relating to separation because "[t]he weighing of these factors to determine their effect upon the process of desegregation is a delicate task that is aided by a sensitivity to local conditions, and the judgment is primarily the responsibility of the district judge." 407 U.S. at 466, 92 S.Ct. 2196 (citing Brown II, 349 U.S. at 299, 75 S.Ct. 753).
The Supreme Court recognized that in the realm of public education, a desire for local control was understandable: "Direct control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society. . . ." 407 U.S. at 469, 92 S.Ct. 2196. But the Supreme Court accepted the district court's finding that city leaders would be able to exert
Four justices dissented from the majority opinion in Wright. Those justices concluded that the record before the district court did not indicate that the city's operation of a separate system would have jeopardized the county's ability to fulfill its obligations under the desegregation plan. If it had, wrote Chief Justice Burger, he would unhesitatingly have joined in the majority opinion. 407 U.S. at 471-83, 92 S.Ct. 2196 (Burger, C.J., dissenting, joined by Blackmon, Powell, and Rehnquist, JJ.).
In August 1972, the Court revised the Gardendale, Graysville, and Minor zones based on the Court's finding that:
(August 25, 1972 order, pp. 3-4, cited in Doc. 1, p. 30). The Court noted that it was "mindful of its obligation to see that a plan is adopted which promises realistically a desegregated learning opportunity now." (Id. at p. 4).
In 1976, this case made another trip to the Fifth Circuit Court of Appeals. The Jefferson County Board of Education had been operating under the 1971 Singleton order for nearly five years. The Fifth Circuit noted that in those five years, "great progress" had been made, "aided by increasing good faith and mutual confidence on all hands, for which the parties are to be commended." Stout v. Jefferson Cty. Bd. of Educ., 537 F.2d 800, 801 (5th Cir. 1976).
The issue before the appellate court was narrow. The Fifth Circuit considered whether this Court could leave three schools in the Wenonah feeder pattern segregated by race in light of Judge Pointer's finding that the Court "could devise no effective remedy" to cure the situation. 537 F.2d at 801. The issue, the Fifth Circuit stated, was "close and troubling." Id. at 802. Judge Pointer had attempted to assign students from the white school to the two black schools, but the white students had refused to attend the black schools. Moreover, a geographic barrier, "rather than [] the segregative act of any authority" was responsible for the segregation of the schools. Id. The Jefferson County Board of Education had accomplished much of "the uprooting" of its former dual system that the 1971 desegregation order required, and "a unitary system [was] operating." Id.
The Fifth Circuit acknowledged that Judge Pointer rejected the proposal that the United States put forward for desegregating the Wenonah schools in part because he feared white flight and a situation that would produce less, not more, desegregation. The Fifth Circuit, noting the deference that it had given Judge Pointer over the years because of his effective efforts to resolve complex local desegregation issues, held that Judge Pointer could take white flight into account when choosing between alternative "permissible plans," 537 F.2d at 802 ("We have found no authority declaring that in choosing between various permissible plans a chancellor may not elect one calculated to minimize
In other words, although the three schools at issue were racially identifiable, the student populations of other schools in the Jefferson County system were desegregated. The Fifth Circuit recognized that the extent of desegregation was limited "as a matter of practicality" because "well over four thousand white students reside in the predominantly white neighborhoods east of Shades Mountain," 537 F.2d at 802 n. 1; however, the Fifth Circuit noted that the Constitution does not require racial quotas or racial balancing at each of the schools in a district. Id. at 803. "`[A] balance must be reached, one unquestionably subtle in its implications: while school system segregation must be actively disestablished, racial quotas for student population are not to be instituted.'" Id. (quoting Carr v. Montgomery Cty. Bd. of Educ., 377 F.Supp. 1123, 1133 (M.D. Ala. 1974)).
Throughout the Stout II opinion, the appellate court made clear that it affirmed the district court reluctantly. The Fifth Circuit signaled that its decision might have been different were it not for the fact that some of the schools in Jefferson County had desegregated student populations. 537 F.2d at 802 (noting that the holding was based on the particular circumstances before it and that the holding was "[n]ot without reservations"). The Fifth Circuit expressed its disapproval of the state of affairs in the Wenonah area in the final passages of the decision but recognized that young students in the area would receive relief in high school. The Fifth Circuit wrote:
Id. at 803.
The Fifth Circuit held that in light of the one-race schools in Wenonah and other conditions in the Jefferson County system, this Court had to continue to oversee the county system and consider implementation of additional desegregation practices. The Fifth Circuit stated:
537 F.2d at 803.
In Ross, the Fifth Circuit said no to a splinter district in Texas. For a number of years, the parent district, the Houston Independent School District, had operated under a series of desegregation orders. The district court entered the operative desegregation order in 1970. As of 1970,
Citizens in a community in the middle of Houston began organizing the proposed splinter district the year after the operative desegregation order was entered, and in 1973, the splinter district filed a notice of intent to implement the splinter district and a stipulation in which the splinter district reported that it was "interested solely in providing quality education for the students of its district [.]" 559 F.2d at 940. The Houston district and the United States opposed the separation, arguing that the separation would impede the desegregation of the Houston district. Id.
After the parties maneuvered through the complex "procedural matrix" in the case, the case made its way to the Fifth Circuit Court of Appeals. The Fifth Circuit began its analysis of the proposed separation by pointing out that "the entire area comprised within" the Houston district had been subject to a desegregation decree, and the Houston district had not "been adjudicated to have achieved a unitary status. . . ." 559 F.2d at 942. Therefore, "the fundamental issue" in the case had to "be framed as assessing the impact" of separation on the desegregation process in the Houston district. Id. "[T]he legality" of the splinter district's status under state law did "not control the impact of the" proposed separation "on the court's objective of creating a unitary school district" in Houston. Id. The Fifth Circuit noted that the mere effort to separate "had an obviously disquieting effect upon the sensitive community relations in Houston which must be maintained intact" if the relief sought through the Houston desegregation order "[was] to be accomplished." Id. at 943.
Citing Stout II, the Fifth Circuit held that this Court had properly evaluated a proposed municipal separation by "look[ing] at the entirety of the system subject to the court's order to determine what needed to be done to assure the achievement of a unitary system" and then determining "whether the creation of the separate system would interfere with the process of desegregation." 559 F.2d at 944. The Fifth Circuit explained that for a district court to make this assessment, the proposed splinter district must first "establish what its operations will be." Id. The proposed district:
Id. And, "[e]ven after this definitive statement has been made, the burden remains on [the splinter district] to establish that its implementation and operation will meet the tests outlined for permitting newly created districts to come into being for parts of districts already under an ongoing court desegregation order." Id. at 945. The Fifth Circuit remanded the case to the district court to conduct the full separation analysis.
On May 27, 1988, the Hoover City Board of Education and the Jefferson County Board of Education executed an agreement to transfer to Hoover the responsibility for and operation of seven public schools located within the City of Hoover. (Doc. 4, pp. 10-21 in Case 16-mc-199).
In April 1990, the United States Supreme Court issued the first of three opinions in Missouri v. Jenkins, a case involving what appears to be the most ambitious desegregation plan that the Supreme Court has examined. 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). In that case, following a trial that lasted seven months, the district court found that the State of Missouri and the Kansas City Missouri School District had operated a school system segregated by law and that the segregation "ha[d] caused a system wide reduction in student achievement" within the district. Jenkins v. Missouri, 639 F.Supp. 19, 24 (W.D. Mo. 1985) (emphasis in original).
The district court offered no particularized findings of fact regarding the nature or extent of the reduction in student achievement, especially as the reduction pertained to black students within the district. Missouri v. Jenkins, 515 U.S. 70, 74-75, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995).
The district court aimed to improve the quality of education throughout the Kansas City district as a means of attracting Caucasian students into the school system. The city school system was nearly 70% African-American, and the district court determined that rezoning within the municipal district would "increase the instability" of the district and "reduce the potential for desegregation." 639 F.Supp. at 38. The suburban public school systems that surrounded the city had higher populations of Caucasian students than did the Kansas City system. During the trial in the case, the district court examined the suburban districts and did not find an interdistrict constitutional violation. Consequently, the district court could not compel, by court order, students in the suburban districts to attend one of the city schools, but the district court hoped that the specialized programs that the city schools offered and substantial capital improvements designed to make the school facilities in the Kansas City district comparable to the facilities in the suburban districts would attract families from the suburban districts and cause parents of Caucasian children to voluntarily enroll their children in the Kansas City schools. 515 U.S. at 76-77, 115 S.Ct. 2038.
The case made its first trip to the Supreme Court for the high court to evaluate the district court order awarding attorney's fees to the attorneys for the plaintiffs. In making its evaluation, the Supreme Court noted that the district court had ordered the State of Missouri and the Kansas City school district to invest $260 million in capital improvements and $200 million in magnet programs in the municipal school system. 491 U.S. at 276, 109 S.Ct. 2463 (Jenkins I). The Supreme Court affirmed the fee award.
In Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991), the Supreme Court examined a municipal public school district that had complied in good faith with a desegregation decree for a reasonable period of time and had successfully desegregated the student populations in the district's public schools. The school board sought dissolution of the desegregation decree. The private plaintiffs opposed the effort. Id. at 240, 111 S.Ct. 630.
In 1963, an Oklahoma district court had found that Oklahoma City's housing and public schools were intentionally segregated by law. The district court entered a desegregation order, and the school district attempted to meet the demands of the order by rezoning the schools within the district. Over time, the district court concluded that rezoning was not an adequate remedy for the constitutional injury. In 1972, the court imposed a more complex desegregation plan. 498 U.S. at 240-41, 111 S.Ct. 630. After the school district operated under the complex plan for five years, the district court found that the school board had successfully desegregated the student populations of the schools within the public school system and that the district court, on the record of good faith conduct before it, had no reason to anticipate that termination of federal court oversight would "result in the dismantlement of the [desegregation plan] or any affirmative action by the [school board] to undermine the unitary system so slowly and painfully accomplished over the 16 years during which the cause ha[d] been pending before th[e] court." Id. at 241, 111 S.Ct. 630 (internal quotation marks omitted).
The private plaintiffs attempted to challenge the revised desegregation plan. The Supreme Court considered whether the original desegregation decree provided a framework under which the district court could examine the new zoning plan or whether the district court must make a fresh start and decide whether the new zoning plan, in its own right, violated the Fourteenth Amendment.
Before reaching the constitutional issue in the case, the Supreme Court observed that lower courts had used the term "unitary" inconsistently when discussing public school desegregation. Citing a decision from the relatively new Eleventh Circuit Court of Appeals by way of example, the Supreme Court stated:
498 U.S. at 245, 111 S.Ct. 630 (citations omitted). The Supreme Court held that the labels "dual" and "unitary" were not particularly helpful. The Fourteenth Amendment is the crux of the matter, and the Fourteenth Amendment commands that public school boards operate systems in which students are not intentionally segregated by race. See id. at 245-46, 111 S.Ct. 630.
The Supreme Court determined that the district court's 1977 finding that "the Oklahoma City School District was being operated in compliance with the . . . Fourteenth Amendment, and that it was unlikely that the school board would return to its former ways, would be a finding that the purposes of the desegregation litigation had been fully achieved." 498 U.S. at 247, 111 S.Ct. 630. The Supreme Court held that after a district court finds that a public school district has eliminated the
In deciding whether to dissolve a desegregation decree, the Supreme Court wrote, a "district court need not accept at face value the profession of a school board which has intentionally discriminated that it will cease to do so in the future." 498 U.S. at 249, 111 S.Ct. 630. Rather, "in deciding whether to modify or dissolve a desegregation decree," a district court should consider evidence of "the school board's compliance with previous court orders" and of the school board's "good faith" in complying with the desegregation decree. Id.
The Supreme Court remanded the Dowell case to the district court for a determination of whether the school district "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." 498 U.S. at 249-50, 111 S.Ct. 630. In making the determination, the Supreme Court instructed the district court to consider not only student assignments but all of the Green factors. Id. at 250, 111 S.Ct. 630.
After determining "whether the Board was entitled to have the decree terminated," the Supreme Court instructed, the district court "should proceed to decide the [private plaintiffs'] challenge to the [Student Reassignment Plan]." 498 U.S. at 250, 111 S.Ct. 630. The Supreme Court explained that a school district that has been released from a desegregation order "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." Id. Thus, according to the Supreme Court, "appropriate equal protection principles" should govern the district court's evaluation of the school district's Student Reassignment Plan if the school district "was entitled to have the decree terminated. . . ." Id.
In Freeman v. Pitts, the United States Supreme Court reiterated that a federal court's "end purpose" in a public school desegregation case is "to remedy the [constitutional] violation and, in addition, to restore [to] state and local authorities" the control of their public schools. 503 U.S. 467, 489, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). "Returning schools to the control of local authorities at the earliest practicable date is essential to restore [local authorities'] true accountability in our governmental system." Id. at 490, 112 S.Ct. 1430.
The Supreme Court also explained in Freeman that "the Green factors need not be a rigid framework." 503 U.S. at 493, 112 S.Ct. 1430. District courts must "inquire whether other elements ought to be identified, and [] determine whether minority students [a]re being disadvantaged in ways that require[] the formulation of new and further remedies to ensure full compliance with the court's decree." Id. at 492, 112 S.Ct. 1430.
Finally, in Freeman, the Supreme Court held that federal courts do not have to try to correct racial imbalances in public schools that are caused by demographic
503 U.S. at 495, 112 S.Ct. 1430.
In 1995, 18 years into the federal court's supervision of the Kansas City public school district, the Jenkins case made its third trip to the United States Supreme Court and produced a 5-4 decision that set limits on the equitable remedies that the district court had fashioned. 515 U.S. at 73, 115 S.Ct. 2038. The State of Missouri challenged orders from the district court that required the state to continue to fund remedial educational programs and to fund salary increases for faculty and staff in the Kansas City district. Id. at 80, 115 S.Ct. 2038. The Supreme Court reiterated that "a desegregation remedy `is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct'" and "to eliminate the racial identity of the schools within the affected school district" by integrating a school's students, faculty, and administrators and providing equitable facilities, extracurricular activities, and transportation to black students. See id. at 87-90, 115 S.Ct. 2038 (quoting Milliken v. Bradley, 418 U.S. 717, 746, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974)). The Supreme Court concluded that the challenged orders exceeded the district court's remedial authority for a number of reasons.
The Supreme Court held that the district court's continued effort to make Kansas City public schools equal to or better than their suburban counterparts to attract non-minority students to the city schools exceeded the specific injury that the district court had identified, namely a reduction in student achievement and the existence of racially identifiable schools within the Kansas City system. The Supreme Court explained that the district court could not fashion an inter-district remedy because the district court did not find that the differences in the racial composition of the student populations of the Kansas City schools and the student populations of the schools in the surrounding suburbs were "`caused by official activity of any sort.'" 515 U.S. at 93-94, 115 S.Ct. 2038 (quoting Milliken I, 418 U.S. at 757, 94 S.Ct. 3112 (Stewart J., concurring)). An inter-district remedy could withstand scrutiny only if the record demonstrated that state or local officials "`had contributed to the separation of the races.'" 515 U.S. at 92, 115 S.Ct. 2038 (quoting Milliken I, 418 U.S. at 755, 94 S.Ct. 3112 (Stewart, J. concurring)).
In N.A.A.C.P., Jacksonville Branch v. Duval County School, the Eleventh Circuit affirmed a district court decision that terminated federal oversight of a large public
Five years after the school board first implemented the terms of the consent agreement, the board filed a motion for a declaration of unitary status. Two years of hearings and briefing followed. 273 F.3d at 964-65. The district court issued an exhaustive opinion that provided the basis for the court's finding that the board "had fulfilled its constitutional obligation to eliminate the vestiges of de jure segregation" and had desegregated the schools in the district "in good faith and to the extent practicable." Id. at 965.
The Eleventh Circuit began its evaluation of the district court's declaration of unitary status with a discussion of the legal framework for the review. The Court of Appeals stated:
273 F.3d at 965-67 (footnotes and internal citations to Green, Freeman, and other Supreme Court and Eleventh Circuit opinions omitted).
Applying these standards, all of the judges on the appellate panel agreed that the evidentiary record demonstrated that the school district, through its good faith efforts, had earned a declaration of unitary status under all but one of the Green factors. For example, the court of appeals unanimously observed that the school board had "aggressively recruited black faculty and staff" and had achieved the goal established in the consent agreement for racial diversity of faculty and staff. 273 F.3d at 967.
With respect to student assignments, two of the three appeals court judges concluded that the school board had successfully implemented and funded a robust magnet program to try to maintain racially diverse student bodies in the years following the elimination of non-contiguous school zones and bussing. 273 F.3d at 967-68, 974. To the extent that racially identifiable schools remained in the core of the district, the majority agreed with the district court's finding that the school board had not "contributed to or perpetuated the [] imbalance in any way," and the school board had "made enormous efforts to counter the effects of past discrimination and present-day choices by parents." Id. at 971. The majority held that the school board had "eliminated the vestiges of de jure segregation to the extent practicable" and that the board was "not responsible for the segregative effects of external forces over which [the board] ha[d] no control." Id. at 974.
Turning to the issue of good faith, the Eleventh Circuit reiterated that to achieve a declaration of unitary status, a school board must have "`in good faith fully and satisfactorily complied with, and shown a commitment to, the desegregation plan.' Failure to do so can justify continued judicial supervision of a desegregation decree." 273 F.3d at 974 (quoting Manning ex rel. Manning v. Sch. Bd. of Hillsborough Cty., Fla., 244 F.3d 927, 942 (11th Cir. 2001)). The majority found that the school board had not violated the consent agreement, had "consulted extensively" with the private plaintiffs about the district's magnet program, and had "vigorously encourag[ed] a race neutral distribution of students throughout the system." 273 F.3d at 974. The board also had strategically built new schools in areas that would promote an increase in the desegregation of the district's schools because the areas were conducive to "black student mobility" and "naturally integrated housing patterns."
Id. at 976.
Thus, because the majority concluded that the school district had eliminated to the extent practicable the vestiges of de jure segregation and had demonstrated, in good faith, its willingness to continue those efforts after the termination of federal
273 F.3d at 976-77.
In August 2001, this Court found that "many student transfers for the 2001-02 school year that had been approved by the [Jefferson County] Board were not in compliance with the 1971 Court Order." (Doc. 780, p. 1). The Court ordered the parties to formulate new guidelines regarding Jefferson County's transfer policy. (Doc. 780). Under the amended procedure, only three types of transfers are available: racial desegregation transfers, employee transfers, and hardship transfers. (Doc. 998, p. 8).
In 2003, the City of Vestavia Hills annexed the Jefferson County community of Cahaba Heights. At the time, Cahaba Heights was a community of nearly 5,000 people, and it was predominantly white. As of the 2000 census, Cahaba Heights was 95% Caucasian. (Doc. 1126, p. 30). Jefferson County lost 900 residents under the age of 18 as a result of the annexation. (Doc. 1126, p. 93).
On June 13, 2003, the Court entered an order approving the operation of the City of Leeds school district for the 2003-04 school year. (Doc. 824). At the time, both Leeds and Jefferson County had an under-18 black population of approximately 15%. (Doc. 1126, pp. 41-42).
In 2002, Congress passed the No Child Left Behind Act (NCLBA). That Act contained provisions which required public school boards to permit students attending a Title I school "identified for school improvement" to transfer to a school that is not identified for improvement. The Act also required public school boards to request a modification of desegregation orders where necessary to permit No Child Left Behind transfers. (Doc. 906, pp. 1-2). In July 2004, this Court approved Jefferson County's proposal to allow NCLB transfers from Brighton Middle School, the only Title I school in need of improvement that year, to various schools, none of which was in the Gardendale High School feeder pattern. (Docs. 868, 869).
On May 2, 2005, the Court entered an order approving the operation of the Trussville school district. (Doc. 899). As of the 2000 census, 15% of the under-18 student population in Jefferson County was African-American; 1.3% of the under-18 student population in Trussville was African-American. (Doc. 1126, pp. 41-42). By 2010, 37% of the under-18 student population in Jefferson County was African-American; 8.2% of the under-18 student population in Trussville was African-American.
Trussville's separation capped three significant withdrawals of Caucasian communities from the Jefferson County public school system between 2000 and 2005. There were no municipal separations from the Jefferson County district between 1990 and 2000. During that decade, the Caucasian population in Jefferson County increased 2.5%. (Doc. 1126, pp. 29-30). In 2000, the student population in the Jefferson County school district was 75% white and 23% African-American. (Doc. 1126, p. 17). The separation of the Leeds and Trussville municipal systems from Jefferson County in 2003 and 2005, respectively, and Vestavia's annexation of Cahaba Heights in 2003 contributed to significant demographic shifts in Jefferson County. (Doc. 1126, p. 17). The Leeds and Trussville separations caused a 3% increase in Jefferson County's African-American student population and a corresponding 3% decrease in the district's Caucasian student population. (Doc. 1126, p. 41). By 2015, the student population in the Jefferson County school district was 43% white and 47% African-American. The following chart illustrates the impact of the municipal separations over the years:
Jefferson County School District — 2000 to 2015
Enrollment by Race and Ethnicity
2000 2005 2010 2015
Number Percent Number Percent Number Percent Number Percent
Total 40726 100.00% 35834 100.00% 35860 100.00% 35988 100.00%
White (Non- 30804 75.64% 21811 60.87% 18321 51.09% 15629 43.43%
Black (Non- 9354 22.97% 12861 35.89% 15304 42.68% 17017 47.29%
Hispanks (any race) 350 0.86% 906 2.53% 1794 5.00% 2899 8.06%
(Doc. 1131-6, p. 14).
In 2005, Brighton Middle, Erwin Elementary School (grades 3-6), Center Point Elementary School (K-2), and Fultondale Elementary School (K-6) were designated as NCLB schools in need of improvement. (Doc. 906, p. 3). The Court allowed students in sixth grade at Erwin Elementary and Fultondale Elementary to transfer to Bragg Middle School (12 students maximum, six of whom had to be from Erwin Elementary). (Doc. 906, p. 4). The Court allowed students in grades K-5 at Fultondale Elementary to transfer to Snow Rogers Elementary School. (Doc. 906, p. 4).
Brighton Middle and Fultondale Elementary made adequate yearly progress and were not required to offer transfer options under the NCLBA for the 2007-08 school year. (Doc. 942, p. 2). Erwin Elementary and Center Point Elementary remained in need of improvement. (Doc. 942, p. 2). The Court allowed students in sixth grade at Erwin Elementary to transfer to Bragg Middle (12 maximum). (Doc. 942, p. 3; Doc. 943). The Court allowed Center Point students to transfer to various non-Gardendale schools. (Doc. 942, p. 3; Doc. 943).
Erwin Elementary and Center Point Elementary remained in need of improvement in 2008. (Doc. 954). The Court allowed students in sixth grade at Erwin Elementary to transfer to Bragg Middle (12 maximum) for the 2008-09 academic year. (Doc. 954, p. 3; Doc. 955). The Court allowed students from Center Point Elementary (K-2) and from grades 3-5 at Erwin Elementary to transfer to Snow Rogers Elementary. (Doc. 954, p. 3; Doc. 955). This modification was the result of Paine Primary School and Paine Intermediate School (previous receiving schools for Center Point and Erwin Elementary grades 3-5) splintering off as part of the Trussville municipal school system. (Doc. 954, p. 3, n. 1).
In 2010, Jefferson County built a new facility to house Gardendale High School. The $51 million facility was funded with the proceeds of a one-cent sales tax that the Jefferson County Commission imposed in 2004. (Doc. 1127, p. 134; Doc. 1128, p. 158; Doc. 1131-24, pp. 77-79). The Jefferson County Commission holds the debt on the new high school. (Doc. 1128, pp. 157-59).
Before the high school was built, there was debate about whether the facility should be located in Gardendale or Fultondale. (Doc. 1124, pp. 165-66).
To fulfill its obligations under the desegregation order, Jefferson County had to propose the new high school site to the private plaintiffs and the United States. The private plaintiffs and the United States agreed on the location with the understanding that Jefferson County would house a regional career tech program in the new facility that would draw students from across the county. (Doc. 1124, p. 163; Doc. 1127, pp. 135-36; Doc. 1128, p. 78; Doc. 1129-10, p. 2).
The career tech program at Gardendale High is part of a district-wide effort to increase diversity in Jefferson County high schools. The Jefferson County Board has placed different career tech programs at different high schools throughout the district to encourage high school students to enroll in programs outside of their zoned high schools. (Doc. 1131-17; see also Doc. 1127, pp. 142-43). The career tech programs function as magnet programs for vocational skills, thereby fostering opportunities for voluntary desegregation. (Doc. 1127, pp. 135-39; Doc. 1128, p. 34).
The only compliment that any Gardendale board member who testified in this matter could muster for the $50+ million high school facility is that it has nice curb appeal. (Doc. 1124, pp. 100-01). Dr. Craig Pouncey, the current superintendent of the Jefferson County school system, testified that the high school is "the epitome of one of the best high schools anyone could ever hope for" and "an asset to any community." (Doc. 1127, p. 134). Based on the Court's 2016 visit to the high school, the Court credits Dr. Pouncey's testimony. As photographs in the record demonstrate, Gardendale High School is an outstanding facility that offers state-of-the-art educational tools, particularly in the vocational areas of auto tech, welding, and graphic arts. (See Doc. 1127, p. 138; Doc. 1132-9, pp. 11-12).
It would cost the Jefferson County Board $55 million to build a new regional facility to replace Gardendale High School, and it would take at least two years to build the new facility. (Doc. 1127, pp. 137-38).
Historically, the Jefferson County Board of Education has operated one of the largest public school systems in the state of Alabama. (Doc. 1118, ¶ 24). The Jefferson County public school district sprawls across north-central Alabama, occupying a significant portion of Jefferson County's geographic boundaries. As of 2010, 11 municipal school systems also operated within Jefferson County. The municipal systems are clustered in a crescent swath that stretches from the south-western area of Jefferson County to the north-eastern part of the county. The following map depicts the 12 public school systems in Jefferson County:
(Doc. 1131-7, p. 58; Doc. 1118, ¶¶ 20-22).
The Jefferson County public school district is organized into 13 feeder patterns that are home to 56 schools. The following map identifies the 13 school zones in the Jefferson County public school system:
(Doc. 1131-6, p. 66).
As the map above illustrates, the Gardendale zone sits in the north-central section of Jefferson County. The zone consists of Gardendale High School, Bragg Middle School, Gardendale Elementary, and Snow Rogers Elementary. According to census data, as of 2010, Gardendale had just under 14,000 residents, 88.4% of whom were Caucasian and 8.6% of whom were African-American. (Doc. 1131-6, p. 21; 2010 Census Data, Appendix C). As of 2010, the racial composition of the student populations of the four schools in the Gardendale zone was as follows:
Black White
Gardendale Elementary 20.10% 74.67%
Snow Rogers Elementary 4.17% 94.27%
Bragg Middle 20.52% 76.79%
Gardendale High 22.60% 74.98%
(Doc. 966-1).
In 2010, students who lived outside of Gardendale's municipal limits were responsible for much of the racial diversity in the Gardendale feeder pattern, particularly in the middle school and the high school. At the middle school level, students from the unincorporated community of Mount Olive, the Town of Brookside, the City of Graysville, and the unincorporated community of North Smithfield/Greenleaf Heights join students from Gardendale Elementary and
The community of Mount Olive, the town of Brookside, and the City of Graysville are contiguous to the City of Gardendale. The community of North Smithfield is not contiguous to Gardendale; North Smithfield sits just to the north of the City of Birmingham. (Doc. 1129-9). North Smithfield is an African-American community. When it issued the September 1971 desegregation order in this case, the Court zoned elementary-aged students from North Smithfield for Fultondale elementary to help desegregate the Fultondale feeder pattern. The Court zoned middle school and high school students from North Smithfield for Bragg Middle and Gardendale High to desegregate the Gardendale feeder pattern. (Doc. 1124, pp. 35, 37; Doc. 1125, pp. 167-68).
In 2011, Erwin Elementary School and Center Point Elementary School remained NCLB schools in need of improvement. Students in grades 6-8 were moved to a dedicated middle school named Erwin Middle School which also was designated as a school in need of improvement. Jefferson County opened a new Center Point High School. Because most of the students in the new high school were from Erwin Elementary, the new Center Point High School was designated as an NCLB school in need of improvement. (Doc. 973, p. 3). The Court allowed students from Center Point Elementary and Erwin Elementary to transfer to various non-Gardendale schools. (Doc. 973, p. 3). The Court allowed a maximum of 12 students from Erwin Middle School to transfer to Bragg Middle School. (Doc. 973, p. 3; Doc 974).
The City of Gardendale has contemplated separation from the Jefferson County public school system for more than two decades. (Doc. 1124, pp. 51-52; Doc. 1128, pp. 101-02, 119-20; see also Doc. 1131-43, pp. 1-2; Doc. 1131-44, p. 10; Doc. 1131-47, pp. 6, 8; Doc. 1131-50; Doc. 1131-51). Early feasibility studies did not support separation. (Doc. 1124, pp. 167-68; Doc. 1128, p. 120; Doc. 1131-50; Doc. 1131-51).
In 2012, two Gardendale residents and a resident of Mount Olive renewed the effort to form a Gardendale municipal public school system. (Doc. 1124, pp. 170-71, 186, 191-92; Doc. 1131-35, p. 14; Doc. 1131-44, pp. 9-10).
When asked to describe the deficiencies in the Gardendale schools that caused him to want to wrest those schools from Jefferson County's management, one of the organizers gave evasive responses and acknowledged that his children were doing well in school. (Doc. 1131-41, pp. 10, 13, 23). When asked to identify changes that the Gardendale system should make if allowed to separate, the organizer replied "general improvements of education." (Doc. 1131-41, p. 23).
Another organizer stated that his primary reason for supporting a separate system is that "historically in many areas, including Alabama, a smaller system with individual local control [] tend[s] to perform better academically than larger systems."
The third organizer shares the view that municipal districts equate with better-performing public schools. He testified: "whether you look in Jefferson County or whether you look across the State of Alabama or you look across the nation, [] the better performing public school systems are city-based systems and they're smaller where decisions are made at a very hyper-local level." (Doc. 1124, p. 173; see also Doc. 1124, p. 188:13-14, p. 204:19-22).
The Facebook page discussion began on September 12, 2012. (Doc. 1132-2, p. 181). The first statement from one of the separation organizers reads:
(Doc. 1132-2, p. 181, Sept. 12, 2012, 3:03 p.m.; see also Doc. 1131-40, pp. 1-2).
Again on September 15, 2012 on the Gardendale Schools Facebook page, in the course of trading remarks with residents of Gardendale and Mount Olive, one of the organizers described various reasons for
The next day, on September 16, 2012, in response to a remark from someone in the ongoing conversation, the organizer wrote:
(Doc. 1132-2, p. 186, Sept. 16, 2012, 10:21 p.m.). Other participants in the discussion echoed the organizer's remarks. There are multiple comments in the vein of "[o]ur schools are busting at the seams with students from other communities," and "they bus kids in from all over." (Doc. 1132-2, pp. 181, Sept. 12, 2012, 6:11 p.m. & 9:25 p.m.). One participant put it this way:
(Doc. 1132-2, p. 183, Sept. 13, 2012, 1:41 p.m.; see also Doc. 1128, pp. 125-26).
In addition to creating the Facebook page, the organizers of the separation effort approached Gardendale's mayor and the Gardendale City Council and requested a feasibility study. (Doc. 1124, pp. 171, 189, 191-92; Doc. 1128, p. 103; Doc. 1131-41, p. 12; Doc. 1131-44, p. 9; Doc. 1132-2, pp. 188-89; Doc. 1132-3, p. 314). With respect to the municipal action required to start a splinter district, one organizer stated: "the first order of business was to" have "conversations with the mayor at the time and the [city] council at the time, and we got their backing because any kind of official actions would obviously have to occur through the city. . . ." (Doc. 1124, p. 171). "At the end of the day, [city officials have] to drive the official efforts, but it really became a groundswell of a movement and that was how the whole idea was born." (Doc. 1124, p. 188).
In 2012, Fultondale Elementary School was added to the list of schools in need of improvement in the Jefferson County public school system. (Doc. 976, p. 3). The Court allowed students from Center Point Elementary, Center Point High School, and Erwin Elementary School to transfer to various non-Gardendale schools. (Doc. 976, p. 3; Doc. 977). The Court allowed a maximum of 12 students from Erwin Middle School to transfer to Bragg Middle School. (Doc. 976, p. 4; Doc. 977). The Court allowed students from grades K-5 at Fultondale Elementary School to transfer to Snow Rogers Elementary School. (Doc. 976, p. 4; Doc. 977).
In October 2012, the Gardendale City Council commissioned Dr. Ira Harvey to study the feasibility of a Gardendale municipal school system. (Doc. 1124, pp. 171, 191; Doc. 1132-2, p. 160). After the City Council voted to fund the feasibility study, a participant in the Gardendale Schools Facebook page asked if the feasibility study would address the impact of the federal desegregation order in this case. In
(Doc. 1132-2, p. 167, Oct. 2, 2012, 10:53 p.m.). The organizer acknowledged that he is not an expert in federal desegregation law and that Gardendale would have to hire a lawyer with experience in the field to answer questions about the 1971 desegregation order. (Doc. 1132-2, p. 167, Oct. 3, 2012, 1:22 a.m.).
In April 2013, one of the separation organizers announced on the Gardendale City Schools Facebook page that the feasibility study soon would be completed, and a "citizens group" called FOCUS Gardendale was forming in anticipation of the feasibility study. FOCUS stands for Future of Our Community Utilizing Schools. The president of the Gardendale Board described FOCUS Gardendale as a "grassroots" organization. (Doc. 1131-35, p. 11). An organizer wrote on the Gardendale City Schools Facebook page:
(Doc. 1132-2, p. 158, Apr. 19, 2013, 1:34 a.m. (emphasis in post); see also Doc. 1124, pp. 196-97; Doc. 1131-41, pp. 13-14).
FOCUS Gardendale held its first public meeting on April 22, 2013. (Doc. 1131-43, p. 1). Approximately 80 people attended the meeting. (Doc. 1131-43, p. 1; see also Doc. 1132-2, p. 139). According to a news article published the following day, there was much debate at the meeting about the annexation of Mount Olive. (Doc. 1131-43, p. 1).
A long Gardendale City Schools Facebook exchange followed the FOCUS Gardendale meeting. Comments made by one of the separation organizers confirm that there was a lot of discussion at the meeting and disagreement regarding inclusion of the Mount Olive community in the Gardendale municipal school system. (Doc. 1132-2, pp. 143-153).
(Doc. 1132-2, p. 150, Apr. 23, 2013, 5:05 p.m.).
According to 2010 census data, the city of Center Point has a total population of nearly 17,000 citizens, 62.9% of whom are African-American and 32.6% of whom are Caucasian. (2010 Census data, Appendix F). Center Point is part of the Center Point/Erwin/Pinson school zone. (Doc. 998-7, p. 2). There are four schools in the Center Point High School feeder pattern: Center Point Elementary, Erwin Intermediate, Erwin Middle, and Center Point High. (Doc. 998-7, p. 2). For the 2015-16 academic year, Center Point Elementary had a student population that was 92.52% black and 2.14% white; Erwin Intermediate had a student population that was 94.29% black and 1.05% white; Erwin Middle had a student population that was 97.46% black and 0.51% white; and Center Point High School had a student population that was 96.27% black and 1.20% white. (Doc. 1033-1). In raw numbers, there were 606 black students and 14 white students in Center Point Elementary; there were 628 black students and 7 white students in Erwin Intermediate; there were 576 black students and 3 white students in Erwin Middle; and there were 800 black students and 10 white students at Center Point High School. (Doc. 1033-1; see also Doc. 1124, pp. 288-89).
As the following map illustrates, Center Point abuts the southeastern edge of Gardendale, and Center Point sits between Gardendale and Trussville.
(Doc. 1131-6, p. 6). The following map demonstrates that as of the 2000 census, Center Point had the highest concentration of black students of any elementary zone in the Jefferson County public school system.
(Doc. 1131-6, p. 16).
According to 1970 census data, Center Point had a total population of 15,675 individuals, 15,627 of whom were white and 30 of whom were black. (See 1970 Census Data, Appendix G). In 1970, Center Point Elementary had an enrollment of 1,006 white students and 12 black students. (Doc. 1, p. 20, Jefferson County Annual Report 1970-71 school year; see generally Doc. 1128, p. 124). In short, Center Point has shifted from a predominantly white city to a predominantly black city since the Court issued the 1971 desegregation order, and the student bodies in Center Point's public schools which formerly were almost entirely white have become almost entirely black.
In 1971, the City of Gardendale was whiter than it is today. (Doc. 1128, p. 124). Twenty years ago, the student population in Gardendale was 92% Caucasian and 8% African-American. Today, approximately 20% of the student population within Gardendale's municipal limits is African-American. (Doc. 1128, pp. 131-32).
On May 14, 2013, Dr. Harvey presented the results of his feasibility study at a Gardendale town hall meeting. Dr. Harvey concluded that separation was possible, in large part because a Gardendale municipal school system would inherit the virtually-brand new Gardendale High School facility debt-free. (Doc. 1131-24 (May 14, 2013 Harvey Report), p. 37; see also Doc. 1124, pp. 24-25, 168, 172; Doc. 1131-32, p. 4; Doc. 1131-42, p. 12). Dr. Harvey said that Gardendale's unique opportunity to obtain a brand new high school without charge is "totally remarkable." (Doc. 1124, pp. 24-25; see also Doc. 1131-32, p. 4). Dr. Harvey
After Dr. Harvey announced the results of his feasibility study, FOCUS Gardendale spearheaded a campaign to raise taxes to support the Gardendale school system. (Doc. 1124, p. 197; Doc. 1131-41, p. 15). FOCUS Gardendale members met with each member of the city council to persuade the council members to vote for the municipal district and pass a five mill ad valorem tax. (Doc. 1131-41, p. 17; Doc. 1124, p. 189). Trial evidence indicates that one of the separation organizers sent an email message in which he reported that he and another organizer "put the [Gardendale] mayor and the [Gardendale City] council in a head lock until they came to their own conclusions that the school system had to happen." (Doc. 1124, p. 212).
FOCUS Gardendale members also consulted State Senator Scott Beason. Senator Beason lives in Gardendale. (Doc. 1124, pp. 189-90; Doc. 1131-41, p. 17; Doc. 1131-47, p. 11). The FOCUS Gardendale members discussed with Senator Beason the process for potentially annexing the community of Mount Olive into the City of Gardendale. (Doc. 1124, p. 190). Senator Beason prepared legislation designed to accomplish this task. (Doc. 1131-47, p. 12). On the Gardendale City Schools Facebook page, one of the separation organizers advised residents of Mount Olive that if they wanted to be included in the new Gardendale School system, they would need to contact Senator Beason and the Mayor of Gardendale. (Doc. 1132-2, p. 119, May 15, 2013, 3:32 p.m.).
The Gardendale City Council approved a 5 mill ad valorem tax in September 2013. (Doc. 1124, pp. 21, 92; Doc. 1130-3, pp. 1-2). FOCUS Gardendale worked diligently to persuade the citizens of Gardendale to vote to approve an additional 5 mill ad valorem tax. (Doc. 1124, p. 197; Doc. 1128, p. 104). Members went door-to-door encouraging Gardendale's citizens to support the tax. (Doc. 1124, p. 197; Doc. 1131-44, pp. 18, 20).
As part of the effort, FOCUS Gardendale published a flyer that bears the banner, "What path will Gardendale choose?" (Doc. 1096-2, p. 2; Doc. 1128, p. 123; Doc. 1132-13, p. 2). The flyer has a picture of a white elementary school student. (Id.). The top of the flyer lists a number of cities in Jefferson County that have not formed municipal school systems. (Id.). Those cities are Adamsville/Forestdale, Hueytown, Pleasant Grove, and Center Point. (Id.). The cities have well-integrated or predominantly black populations. (Doc. 1128, p. 123).
Another document related to the tax referendum is titled: "Creating a Gardendale City School System—FREQUENTLY ASKED QUESTIONS." (Doc. 1131-32). In answer to the question "What are the benefits of local control?", the document states:
(Doc. 1131-32, p. 2). The document also states that the Gardendale municipal system will acquire the new high school "without cost" and that "[t]he debt to be assumed by the proposed Gardendale City School system is extremely small." (Doc. 1131-32, p. 4). Quoting Dr. Harvey's observations in the feasibility study, the document adds that Gardendale is in an "unprecedented" situation. (Doc. 1131-32, p. 4).
The vote on the ad valorem took place on November 12, 2013. (Doc. 1130-3). The citizens of Gardendale voted to impose another 5 mills to provide additional funding for the school system. (Doc. 1124, pp. 21, 92). One Gardendale Board member testified that there was overwhelming support in the City of Gardendale for the Gardendale municipal school system. (Doc. 1124, p. 244). Another board member testified that "[n]early 70 percent of [Gardendale's] citizens voted in favor" of the additional five mills of ad valorem tax. (Doc. 1124, p. 92). The record demonstrates that just over 3,500 of Gardendale's nearly 10,000
On March 3, 2014, the Gardendale City Council adopted an ordinance that established "a public school system for the City of Gardendale, Alabama, to be known as the Gardendale City School System." (Doc. 1129-1, p. 1). The ordinance also created the Board of Education for the Gardendale City School System. (Doc. 1118, ¶ 23; Doc. 1124, p. 20; Doc. 1129-1, pp. 1-3).
Alabama Code § 16-11-2(b) states that "[t]he general administration and supervision of the public schools and educational interest of each city shall be vested in a city board of education, to be composed of five members who shall be residents of the city, and who shall not be members of the city council or commission." ALA. CODE. § 16-11-2(b) (1975). Consistent with that statute, the municipal ordinance that created the Gardendale Board of Education provides that the members of the board must "be residents of the City of Gardendale." (Doc. 1129-1, p. 1, Section 2). The Gardendale City Council received more than 30 applications for the five positions on the inaugural board. (Doc. 1124, p. 28). From these applicants, the Gardendale City Council selected the five initial members of the board. (Doc. 1124, pp. 21, 27; Doc. 1129-1, p. 2). Each of the individuals whom the city council selected is white. (Doc. 1124, p. 28).
Two members of the Gardendale Board testified at trial, and the president of the school board testified by deposition. Their collective complaints about Gardendale's schools are that classes in Gardendale Elementary are too big, and test scores are too low. (Doc. 1124, pp. 175-78, 202-04; Doc. 1131-35, p. 9). None of these board members voiced his concerns to a Gardendale school principal or to a member of the Jefferson County Board of Education. (Doc. 1124, pp. 208-09; Doc. 1131-35, pp. 9-11). The president of the board acknowledged that he was not involved in his children's schools, and he had no opinion about Jefferson County's management of the schools in the Gardendale feeder pattern. (Doc. 1131-35, p. 7).
African-American citizens of Gardendale were among the 30 candidates for the Gardendale Board of Education. (Doc. 1124, p. 28). Dr. Sharon Porterfield Miller was one of the African-American applicants for the board.
The Gardendale Board of Education called Dr. Porterfield Miller as a witness during the bench trial in this matter because she favors a municipal school system. Dr. Porterfield Miller testified that she has more experience in the field of education than anyone on the Gardendale school board with the possible exception of another board member who is a college professor. (Doc. 1125, pp. 10, 30-32, 36).
To launch the fledgling Gardendale City School System, the Gardendale Board examined the work that other municipal districts in Alabama had undertaken to complete the separation process, and the Board brought in various experts for training. (Doc. 1124, pp. 91, 116).
In the summer of 2014, the Gardendale Board selected Dr. Patrick Martin as the Superintendent for the Gardendale City School system. (Doc. 1124, p. 90; Doc. 1125, p. 215).
To communicate with the members of the Gardendale Board, Dr. Martin created a document that he called the "Superintendent's Weekly Board Update." In one of his first updates, Dr. Martin focused on technology and education. He provided information about the correlation between technology and graduation rates and the correlation between education levels and income levels. (Doc. 1131-21).
In a "Weekly Board Update" from the fall of 2014, Dr. Martin explained that he occasionally would provide information that might help the Board "understand the lens through which the Plaintiff Parties may view our Separation." (Doc. 1131-19, p. 12; Doc. 1131-20, p. 2). Dr. Martin stated that he was reading a book called Stuck in Place: Urban Neighborhoods and the End of Progress Toward Racial Equality.
(Doc. 1131-20, p. 3).
In the fall of 2014, Dr. Martin drafted an interdistrict transfer policy and proposed the policy to the Gardendale Board. The draft policy included a provision permitting racial desegregation transfers. Those transfers were conditioned on the payment of tuition and the availability of space in Gardendale's schools for transfer students. (Doc. 1133-5, p. 1). The 2014 draft plan states that tuition must be paid in full by August 1 of the school year, personal checks may not be used to pay tuition, and a transfer is good for only one year; transfer students must re-apply every year. (Doc. 1133-5, p. 2). The plan states that transportation will not be provided to transfer students. (Doc. 1133-5, p. 2). The president of the Gardendale Board provided comments to Dr. Martin regarding the draft policy. With respect to the racial desegregation provision, the board president wrote: "Legal team to review and confirm its applicability/appropriateness for GBOE." (Doc. 1133-5, p. 4). The board president did not question the necessity of other transfer provisions. (Id.).
In a later iteration of the transfer plan, tuition for non-Gardendale residents was set at $3,600. (Doc. 1133-5, pp. 6-9). Once again, personal checks could not be used to pay the tuition fee. (Doc. 1133-5, p. 8). The next draft of the policy (dated October 2014) set tuition at $1,500. (Doc. 1133-5, p. 13). The provision regarding racial desegregation transfers moved to the end of the list of transfer categories, and the text for that provision appeared in red. (Doc. 1133-5, p. 12). In subsequent drafts of the transfer plan (all bearing December 2014 dates), the racial transfer provision moved higher in the list of transfer categories, and non-resident tuition was set at $1,800 or $1,850. (Doc. 1133-5, pp. 14-27). The parents who would be assessed this tuition would have no say in the operation of the Gardendale School system because, as noted, only Gardendale residents may serve on the Gardendale Board of Education and vote in municipal elections for those who are responsible for the school system. (Doc. 1128, p. 38).
On November 12, 2014, the Court held a status conference with counsel for the Jefferson County Board, the private plaintiffs, and the United States to discuss the status of the Jefferson County Board of Education's compliance with the 1971 desegregation order.
Counsel for the Hoover Board of Education participated in the status conference. At the time, counsel for the Hoover
The parties filed their status report on February 6, 2015. (Doc. 998). The Court held a status conference with the parties on February 20, 2015. (See Doc. 989; Doc. 992; February 20, 2015 staff minute entry). Counsel for the private plaintiffs, the United States, the Jefferson County Board of Education, and the Hoover City Board of Education attended the conference. The Court discussed with all of the parties the possibility of negotiated proposed consent decrees that would create a roadmap to the end of judicial supervision for both the Jefferson County and Hoover City school systems. (Doc. 1009, pp. 74-77, 83-85). During the status conference, the attorney for the Hoover City Board of Education indicated that he also represented Gardendale and mentioned that Gardendale had formed a school system and was attempting to negotiate the terms of separation from Jefferson County with the State Superintendent of Education. (Doc. 1009, pp. 4, 28-29, 34-37). Then-counsel for Gardendale acknowledged that Gardendale understood that "every aspect of its operation would have to be submitted to the court for review." (Doc. 1009, p. 28).
On March 12, 2015, the Jefferson County Board of Education filed a supplemental report regarding matters related to the formation of the Gardendale City school system. (Doc. 1001). In the report, Jefferson County explained that the State Superintendent had issued a final decision with respect to Gardendale's proposed separation; however, "on the most important issues (relating to facilities and attendance), the State Superintendent effectively deferred a permanent decision pending the outcome of further negotiations." (Doc. 1001, p. 2). In his final decision, the State Superintendent acknowledged that his decision was subject to the Court's jurisdiction in this case and that this Court has "the authority to review and/or modify [the State Superintendent's decision] to ensure compliance with federal desegregation laws and the orders of [the Court]." (Doc. 1001-27, p. 3).
On March 13, 2015, Gardendale, represented by a new team of lead attorneys, filed a motion to intervene as a defendant in this action. (Doc. 1002). On March 18, 2015, the Court conditionally granted Gardendale's motion to intervene and, pursuant to 28 U.S.C. §§ 1651 and 2283, the Court enjoined a state court lawsuit in which Gardendale asked the state court to direct Jefferson County to relinquish control of the public schools located within the Gardendale municipal school district. (Doc. 1003). The Court set a hearing for March
On March 31, 2015, Gardendale sent to the other parties in this action a proposed plan of separation. (Doc. 1124, p. 42; Doc. 1125, p. 233). Under Gardendale's initial plan of separation, all of the students who attend the four schools in the Gardendale feeder pattern but are not residents of the City of Gardendale would be phased out of the Gardendale municipal system over a period of 13 years. (Doc. 1124, pp. 43, 110; Doc. 1125, p. 233; Doc. 1131-19, pp. 20-21).
According to Dr. Harvey's feasibility study, for the 2012-2013 academic year, there were 1,002 students in the Gardendale feeder pattern who were not residents of the City of Gardendale. (Doc. 1131-24, p. 40; Doc. 1131-25, p. 17). More than half of those students—537 students, to be exact—were from the town of Mount Olive. (Doc. 1131-25, p. 17).
In April 2015, the private plaintiffs filed an unopposed motion to substitute new named plaintiffs in this action because the original named minor plaintiffs no longer attend nor are eligible to attend schools in Jefferson County. (Doc. 1023). On May 4, 2015, the Court granted the motion. (Doc. 1024). Three of the new named plaintiffs reside in the North Smithfield community. (Doc. 1124, pp. 39-40, 83).
On September 11, 2015, Dr. Martin, a Gardendale attorney, and Gardendale's demographics
After the tour, Dr. Martin described the school visits in a "Weekly Board Update." (Doc. 1131-23). Dr. Martin stated:
(Doc. 1125, p. 298; Doc. 1131-23, p. 2). Dr. Martin testified that Gardendale did not want its bid to separate to become tangled in the time-consuming process of obtaining a declaration of unitary status. (Doc. 1125, p. 301). At trial, Jefferson County Superintendent Craig Pouncey acknowledged that Jefferson County has not developed a complete desegregation plan yet. (Doc. 1127, p. 120).
At Gardendale's request, the Court set a conference on November 10, 2015 to discuss the status of the parties' negotiations regarding Gardendale's initial plan of separation. (Doc. 1030, pp. 1-2; Docs. 1031, 1032). At the conference, the parties asked the Court to enter a scheduling order so that the parties could engage in formal discovery. (Doc. 1045, pp. 8, 10-12, 16-17).
During the status conference, counsel for the United States expressed concern about the impact that the March 2015 separation plan would have on the "transition students" who, under Gardendale's proposal, would be phased out of the four schools in the Gardendale feeder pattern. Based on geography and transportation times, counsel for the United States anticipated that approximately two-thirds of the white transition students and just under one-third of the black transition students would be re-zoned for the Mortimer Jordan High School feeder pattern. Approximately two-thirds of the black transition students would be zoned for the Minor High School feeder pattern.
This potential consequence of Gardendale's March 2015 separation plan was problematic because like Gardendale High School, Mortimer Jordan High School is a contemporary state-of-the-art facility that offers a robust curriculum. As of November 2015, the student population at Mortimer Jordan was 90% white, and the graduation rate exceeded 90%. (Doc. 1045, pp. 12-14). Minor High School offered "a starkly different experience in terms of the kind[s] of educational opportunities that are available to students there [and] the facility itself" which was built in 1988. (Doc. 1045, pp. 13-14). At the time, the student population at Minor was 89% African-American, and the graduation rate was below 70%. (Doc. 1045, p. 14). Data for the transferee middle schools was very
Counsel for the Gardendale Board suggested that the impact of the separation on African-American students might be dissipated if the parties were able to negotiate an agreement that would place the students from the North Smithfield community in Gardendale's schools. (Doc. 1045, pp. 19-20).
Bryant Hill, the president of the North Smithfield Civic League, attended the status conference and became concerned about the possibility that students from North Smithfield would be zoned for the Minor High School feeder pattern. (Doc. 1124, p. 44). Mr. Hill's children attended Bragg Middle and Gardendale High under the management of the Jefferson County Board, and his children excelled. Mr. Hill testified that his children were treated fairly, and the Jefferson County School Board addressed and resolved any problems that arose. (Doc. 1124, pp. 37-38, 41). Mr. Hill wants students from the North Smithfield community to attend the schools in the Gardendale feeder pattern regardless of whether Jefferson County or the City of Gardendale operates those schools. (Doc. 1124, pp. 44-45, 73).
Mr. Hill learned about Gardendale's plan to phase out North Smithfield students for the first time at the November 2015 status conference. Mr. Hill and Dr.
At the bench trial in this matter, Dr. Martin testified that he could not visit with parents from the North Smithfield community because he had not visited with parents from the City of Gardendale.
Gardendale filed a motion to operate a municipal school system on December 11, 2015. (Doc. 1040). Gardendale attached to its motion a proposed plan of separation that Dr. Martin drafted. (Doc. 1040-1; Doc. 1125, p. 322; Doc. 1131-2). Unlike the March 2015 plan, the December 2015 separation plan calls for students from North Smithfield to be zoned for Gardendale schools from kindergarten through high school. (Doc. 1125, pp. 163, 214). To date, the Gardendale Board has not voted to approve the December 2015 separation plan. (Doc. 1124, pp. 153-54).
The December 2015 separation plan provides that the "Attendance Zone" for the Gardendale system "shall be the city limits of the City" of Gardendale. (Doc. 1131-2, p. 4).
The plan establishes a Gardendale "Transition Zone." That zone is comprised of "students in the county who have historically attended Mt. Olive Elementary School and Brookville Elementary School and then matriculated through Bragg Middle School and Gardendale High School." (Doc. 1131-2, p. 3; see Doc. 1125, pp. 174-75). The "Transition Zone" also is comprised of "students living within the Gardendale City limits who have attended Snow Rogers Elementary School and then North Jefferson Middle School and Mortimer Jordan High School." (Doc. 1131-2, p. 3). The second class of transition students—those who live within Gardendale's city limits and currently attend Snow Rogers Elementary, North Jefferson Middle, and Mortimer Jordan High School—may choose to remain in that feeder pattern or move to the Gardendale municipal feeder pattern. (Doc. 1125, p. 182; Doc. 1131-2, pp. 4-5).
The first class of transition students—students from Mount Olive and Brookside and any areas other than North Smithfield which lie outside of Gardendale's city limits and who attend elementary schools out-side of Gardendale's city limits (i.e., Mount Olive Elementary, Brookville Elementary or Fultondale Elementary)—have the option of remaining in their current feeder patterns until they graduate from Gardendale High School. The separation plan states:
(Doc. 1131-2, pp. 4-5). The plan then provides a chart that explains how the transitions would phase these students out of Gardendale's schools over a 13-year period. (Doc. 1131-2, p. 5).
The first "transition zone" for students who live outside of Gardendale's city limits applies only to students in grades 6 through 12. There are just under 70 students who currently live outside of the Gardendale city limits and are zoned for Snow Rogers Elementary or Gardendale Elementary. Those students are not included
The plan also contains provisions regarding "North Smithfield Manor and Greenleaf Heights Students." The plan identifies the North Smithfield students as "[t]hose County Students who reside in the communities of North Smithfield Manor and Greenleaf Heights. These students are further defined by the community footprint served by the North Smithfield Manor and Greenleaf Heights Fire District as of the 2015-2016 school year." (Doc. 1131-2, p. 3). The plan states that "[a]ll students within North Smithfield Manor and Greenleaf Heights, grades Kindergarten to 12, shall attend the Gardendale schools." (Doc. 1131-2, p. 4). Thus, the plan immediately rezones elementary students residing in the North Smithfield community from Fultondale Elementary to Gardendale Elementary; there is no transition period for elementary school students from the North Smithfield community, even those who would be entering their last year at Fultondale Elementary. (Doc. 1125, pp. 131-32, 168). Gardendale Elementary already is over-capacity and will become more so under Gardendale's proposed separation plan. (Doc. 1125, pp. 144-45, 168, 184).
The inability of North Smithfield parents to participate in the operation of the Gardendale system is particularly problematic because Gardendale's separation plan contains no language that obligates Gardendale to educate students from the North Smithfield community for a particular length of time. The separation plan states that students from the North Smithfield community are eligible to attend schools in the Gardendale system as long as the Jefferson County Board remits county ad valorem taxes for the North Smithfield students to the Gardendale Board. (Doc. 1131-2, p. 4 ("Eligibility of North Smithfield Manor and Greenleaf Heights Students to attend the Gardendale Schools shall continue as long as those Local Taxes and Revenue described in Section II.M of this Agreement shall apply to North Smithfield Manor and Greenleaf Heights Students in the same manner that they do to Gardendale Students."), p. 13-14). In its motion for approval of the December 2015 plan of separation, the Gardendale Board states that North Smithfield students will be able to attend Gardendale schools for the "indefinite future." (Doc. 1124, pp. 46-47; Doc. 1131-1, p. 5).
As of the first day of the bench trial in this matter, the Gardendale Board had not explained to the residents of North Smithfield the meaning of the phrase "indefinite future." (Doc. 1124, pp. 47-48, 70, 72). Dr. Martin testified that North Smithfield students could attend Gardendale schools "forever" as long as Jefferson County pays Gardendale the ad valorem school taxes for the students as required by the desegregation order, an order that the Court will dissolve upon a finding that Jefferson County has fulfilled its obligations under the order in good faith. (Doc. 1125, p. 174; see Doc. 226, p. 8, § V (a)).
As noted above, Gardendale's attorney first suggested that Gardendale may wish to retain students from the North Smithfield community in the Gardendale system at the November 2015 status conference when counsel for the United States raised concerns about the desegregation implications of alternative zoning options for those students. (See p. 112, above). Dr. Martin testified that he added language to the 2015 separation plan that required North Smithfield students to attend Gardendale schools based in part on concerns that Dr. Martin heard from Mr. Hill regarding educational continuity (i.e., to avoid having students move from Fultondale Elementary, a Jefferson County school with its calendar and student handbook, to a Gardendale school with a different calendar and handbook). (Doc. 1125, pp. 169-70, 237-38, 262; Doc. 1131-19, p. 25).
Dr. Martin also testified that he added the North Smithfield students to the Gardendale municipal district "to honor the [desegregation] order." (Doc. 1131-9, p. 25; see also Doc. 1125, pp. 235-38). Dr. Martin understood that under the order's provisions concerning splinter districts, the student population of a separating district must have a black student enrollment equal to at least one-third of the separating district's white student enrollment. (Doc. 1125, p. 238; see Doc. 226, p. 9, § V(c)). Without the African-American students from North Smithfield, Gardendale would not be able to comply with that desegregation order provision. Currently, according to Gardendale's statistics, students from North Smithfield constitute nearly 30% of the black student population at Bragg Middle School and more than 25% of the black student population at Gardendale High School. (Doc. 1129-7, pp. 4-5).
On December 8, 2015, the COO of the Gardendale school system sent Dr. Martin an email describing a way to communicate to the Court and the public the decision to include students from the North Smithfield community in the separation plan. (Doc. 1125, p. 240). The proposed communication begins: "The Gardendale Board of Education, in its effort to separate from
With respect to the ratio provision in the desegregation order which requires a splinter system to "make sufficient space available for black students from the county system in such number that, added to the number of black students included in the [] new school zone, equals one-third of the white students included in the [] new school zone," the COO wrote:
(Doc. 1133-6, p. 3). The following chart demonstrates, in specific numbers of students, the way in which the addition of the North Smithfield students to the Gardendale system allows the Gardendale Board to satisfy the desegregation order's student demographic requirement for splinter systems:
Area Black White/ Total Percent Percent White
Other Black /Other
North Smithfield Manor/
Greenleaf Heights Fire 82 1 83 99% 1%
District
Gardendale City Area 219 881 1100 20% 80%
Proposed Gardendale District 301 882 1183 25% 75%
Total
Area Black White/ Total Percent Percent White
Other Black /Other
North Smithfield Manor/
Greenleaf Heights Fire 61 0 61 100% 0%
District
Gardendale City Area 126 408 534 24% 76%
Proposed Gardendale District 187 408 595 31% 69%
Total
Area Black White / Total Percent Percent White
Other Black / Other
North Smithfield Manor /
Greenleaf Heights Fire 65 0 65 100% 0%
District
Gardendale City Area 161 555 716 22% 78%
Proposed Gardendale District 226 555 781 29% 71%
Total
Source: 2015-16 JCFS student live-in counts
(Doc. 1131-3, p. 6; see also Doc. 1133-6, p. 4).
The December 2015 separation plan does not account for students who currently attend schools in the Gardendale feeder
A member of the Gardendale Board testified that Gardendale residents communicated to him that they were very supportive of the plan to include students from the North Smithfield community in the Gardendale municipal district for the indefinite future. (Doc. 1124, p. 244-45). A December 2015 email message addressed to Dr. Martin indicates that some Gardendale residents are not happy. (Doc. 1133-2). The text of the message is as follows:
(Doc. 1133-2; see also Doc. 1128, pp. 112-14 (describing complaints that it is unfair for North Smithfield students to attend Gardendale schools without having to pay the 10 mill fee that Gardendale residents must pay)). Dr. Martin neither shared this email with members of the Gardendale Board nor communicated to board members that he had received information that suggested that residents of Gardendale had reacted negatively to the inclusion of students from North Smithfield in the Gardendale system. (Doc. 1125, pp. 344-46).
The concerns expressed in this email message are consistent with comments posted on the Gardendale City Schools Facebook page shortly after the Gardendale Board presented the revised separation plan to the Court. After a number of people commented that they would have changed their vote on the ad valorem tax if they had known that students from North Smithfield would be included in the Gardendale municipal system, one of the separation organizers commented:
(Doc. 1132-2, p. 8). Dr. Martin testified that only two individuals had complained at Gardendale Board of Education meetings about students attending Gardendale schools without paying the 10 mill ad valorem tax, and neither of those individuals was a resident of Gardendale. (Doc. 1125, p. 342).
The reaction of the North Smithfield community to the proposed separation has not been positive. The North Smithfield community has held a couple of meetings to discuss the proposed separation. No one from the North Smithfield community spoke in favor of Gardendale's separation at those meetings. Rather, everyone who spoke at those meetings opposed the separation. (Doc. 1128, pp. 14-16, 31, 46). Three of the named plaintiffs who reside in the North Smithfield area testified at trial. None supported Gardendale's separation, even under the current plan that includes children from North Smithfield. (Doc. 1128, pp. 6, 16, 23, 31, 33, 39, 47).
(Doc. 1128, pp. 47-48). Expanding on her concerns about the potential for a hostile environment for students from North Smithfield post-separation, the plaintiff remarked:
(Doc. 1128, p. 51).
Addressing the impact of the inclusion of students from North Smithfield in the December 2015 plan, an African-American Jefferson County administrator stated that those students are:
(Doc. 1127, p. 250). The administrator stated that the North Smithfield students would "always be outcasts" in the Gardendale municipal school system. (Doc. 1127, p. 250).
For the 2015-16 academic year, the Jefferson County Board reported an average daily membership of 35,988 enrolled students, of whom 17,095, or 47.5%, were black and 15,665, or 43.5%, were white. (Doc. 1129-2; see also Doc. 1131-10; Doc. 1118, ¶ 24).
For the 2015-16 academic year, Gardendale Elementary had a student population that was 24.20% black and 70.65% white, Snow Rogers Elementary had a student population that was 5.43% black and 85.33% white, Bragg Middle School had a student population that was 29.21% black and 67.19% white, and Gardendale High School had a student population that was 26.54% black and 71.06% white. (Doc. 1129-2).
On April 4, 2016, the City of Graysville and citizens from the unincorporated Mount Olive community filed a motion for limited intervention. (Doc. 1056). On April 5, 2016, the Town of Brookside filed a motion for limited intervention. (Doc. 1057). The Court allowed these communities to intervene for purposes of trial. (Doc. 1121; Doc. 1128, p. 167).
On April 14, 2016 and April 15, 2016, the Court visited a number of Jefferson County schools along with counsel for the parties. The Court visited all of the schools in the Gardendale feeder pattern. The Court also visited Mortimer Jordan High School, Minor High School, Fultondale High School, Bottenfield Middle School (now Minor Middle School), North Jefferson Middle School, Fultondale Elementary School, Brookville Elementary School, and Mt. Olive Elementary School.
On June 15, 2016, the parties filed a joint report notifying the Court that they were unable to reach an agreement regarding Gardendale's proposed plan of separation and that the parties would file briefs outlining their respective positions as required by the Court's scheduling order. (Doc. 1073). On June 15, 2016, Gardendale filed a separate report asking the Court to set a hearing on a date which would allow the Court sufficient time to determine whether it would approve Gardendale's request to operate a municipal school system by the start of the 2017-18 school year. (Doc. 1074, p. 2).
The Court held a pretrial hearing on November 18, 2016. At that hearing, counsel for Gardendale indicated that they planned to argue at trial that "current conditions today, using the language from our reply brief, no longer justify federal court ongoing supervision of the County Board of Education" so that Gardendale should be allowed to separate. (Doc. 1114, p. 12). Counsel for Gardendale argued:
The Court explained that Gardendale's anticipated trial argument presented a logistical challenge because to give the private plaintiffs and the United States a fair opportunity to respond to such an argument, the Court would have to allow the private plaintiffs and the United States to explore all of the Green factors, which was the process that the Court had just begun when Gardendale filed its motion for separation. The Court pointed out that it put that effort on hold and instead re-directed the parties on an expedited discovery path regarding Gardendale's proposed separation. (Doc. 1114, pp. 15-16, 30-31). Counsel for the private plaintiffs argued that Gardendale's attempt to prove at trial that Jefferson County was at or near "unitary status" would enable Gardendale to "mak[e] assertions that we would not have the information to rebut in any way, which would deeply prejudice our case." (Doc. 1114, p. 23). The Court offered Gardendale the option of delaying the hearing on its motion for separation so that the parties could explore the extent to which Jefferson County has fulfilled its obligations under the desegregation order. (Doc. 1114, pp. 24-31). Gardendale declined the opportunity and chose instead to proceed to trial. (Doc. 1114, pp. 33-34).
The Court conducted a bench trial on Gardendale's motion on December 1-2 and December 7-9, 2016. (See Doc. 1110; December
In its brief in support of its motion to separate, the Gardendale Board asserts that "[t]his dispute is not about segregation. . . . Nor is this dispute about racism." (Doc. 1097, p. 2). Quoting Shelby County v. Holder, the Gardendale Board adds that "`[b]latantly discriminatory evasions of federal decrees are rare'" and that "there is no evidence or inference that [the Gardendale Board's] effort to operate its own schools is a response to any desegregation decree or an attempt to evade any order of this Court." (Doc. 1097, pp. 29 (quoting Shelby County, 133 S.Ct. at 2621), 39; see also Doc. 1097, pp. 38, 61-63). The Board continues: "it is impossible to suppose that [the Gardendale Board] is trying to avoid an Order that Gardendale has lived under for 45 years." (Doc. 1097, p. 41). The record contradicts these assertions.
For the reasons stated below, the Court finds that race was a motivating factor in Gardendale's decision to separate from the Jefferson County public school system. More specifically, a desire to control the racial demographics of the four public schools in the City of Gardendale and the racial demographics of the city itself motivated the grassroots effort to separate and to eliminate from the Gardendale school zone black students whom Jefferson County transports to Gardendale schools under the terms of the desegregation order. The Court also finds that Gardendale has not established that its separation will not impede Jefferson County's effort to obtain a court order dissolving the Stout desegregation order. More broadly, the equitable principles that govern school desegregation cases weigh against separation. The Court explains each of these findings in turn.
The record demonstrates that some Gardendale citizens are concerned because the racial demographics in Gardendale are shifting, and they worry that Gardendale, like its neighbor Center Point, may become a predominantly black city. These citizens prefer a predominantly white city. One participant on the Gardendale Schools Facebook page put the matter plainly: "would you like to live in Center Point or Adamsville? . . . think about how quickly an area's demographics change." (Doc. 1132-2, p. 143, Apr. 23, 2013, 3:37 a.m.; see p. 1136 n. 42, above). These citizens believe that a local school system will help reduce white flight and stem the demographic shifts that the city has experienced. (See pp. 1136, above). These citizens supported separation because they hoped that Gardendale's operation of a municipal school system would enable Gardendale to eliminate from the schools in the Gardendale feeder pattern African-American transfer students from communities like Center Point and African-American students from North Smithfield who attend Gardendale schools pursuant to the Stout desegregation order. (See pp. 1133, above).
Separation organizers were particularly interested in eliminating from the schools in the Gardendale zone transfer students from other communities. One organizer stated: "We are using buses to transport nonresidents into our schools (without additional funding) from as far away as Center Point (there's your redistribution of wealth)." (Doc. 1132-2, p. 185, Sept. 15, 2012, 7:12 p.m.). He added: "A look around at our community sporting events, our churches are great snapshots of our community. A look into our schools, and you'll see something totally different." (Doc. 1132-2, p. 185, Sept. 15, 2012, 7:12 p.m.). A day later, that organizer reiterated: "non-resident students are increasing at a[n] alarming rate in our schools. Those students do not contribute financially. . . . I welcome those students, but they'll need to move to Gardendale or pay a transfer fee." (Doc. 1132-2, p. 186, Sept. 16, 2012, 10:21 p.m.).
The author of the "OUR schools" comment attributed the bussing and capacity issues to No Child Left Behind transfers, but the record demonstrates that almost all of the transfer students who ride busses to Gardendale schools are students who transfer to Gardendale schools under the majority-to-minority transfer provision of the desegregation order. Over the years, the Court authorized NCLB transfers only to Snow Rogers, a school with plenty of capacity to accept transfer students, and Bragg Middle, a school to which the Court limited NCLB transfers because of capacity
Racial Gardendale Snow Rogers Bragg Middle Gardendale Desegregation Elementary Elementary School High Transfers by year School School School 2009-2010 7 2 16 12 2010-2011 16 1 21 22 2011-2012 4 2 15 15 2012-2013 1 5 8 22 2013-2014 0 3 1 22 2014-2015 0 2 1 14 2015-2016 2 2 3 19 2016-2017 7 2 7 14
(Derived from Docs. 961-1, 966-3, 975-3, 978-10, 984-4, 999-10, 1033-4, 1106-10).
Thus, the children in schools in Gardendale for whom Jefferson County provides transportation who look "totally different" from the children who attend churches in Gardendale or play on ball fields there are students from the North Smithfield community whom the Court zoned for Bragg Middle School and Gardendale High School and transfer students from areas like Center Point who attend Gardendale schools pursuant to the terms of the Stout desegregation order. All of the students from North Smithfield and all of the students who attend a Gardendale school via desegregation transfers are African-American. So are the NCLB transfer students from Center Point.
To eliminate these students from the schools in the Gardendale feeder pattern and maintain the geographic integrity of the Gardendale zone, the organizers recognized that they had to translate their grassroots effort into official action. (See pp. 1134, above). They did just that.
In every year relevant to Gardendale's separation effort, between 17 and 60 students have attended Gardendale schools via desegregation transfers. It is undisputed that under the December 2015 desegregation plan that Gardendale's superintendent prepared, any student who currently attends a Gardendale school on the basis of a court-ordered transfer will be eliminated immediately from the Gardendale municipal school system. (Doc. 1125, p. 282; Doc. 1129-7, p. 7) (Gardendale trial exhibit stating that "[t]he students that transfer into Gardendale Zone Schools would return to their assigned schools"). The "Transfers" column in Gardendale's trial exhibit 7 illustrates graphically the elimination of transfer students from the Gardendale municipal system. (Doc. 1129-7, p. 1).
The record demonstrates that toward the end of 2014, Dr. Martin drafted an interdistrict transfer policy and circulated one of the early drafts of the policy among the members of the Gardendale Board of Education. The proposed transfer policy contained a racial desegregation transfer provision. The president of the Gardendale Board responded to this desegregation transfer provision with the comment: "Legal team to review and confirm its applicability/appropriateness for GBOE." (Doc.
The current draft transfer policy that Gardendale presented to the Court at trial removes the tuition requirement for racial desegregation transfers but retains the caveat that these transfers are "subject to space availability." (Doc. 1129-10, p. 5). In addition, "[t]ransportation is not provided for any transfer student unless required by federal courts." (Doc. 1129-10, p. 6). The absence of transportation would discourage transfers. The evidence also establishes that the Gardendale Board has not voted on a transfer policy. (Doc. 1125, pp. 283-93; Doc. 1129-10, pp. 2, 6) (characterizing current draft of policy as a "proposed" policy that the Gardendale Board has not yet adopted; the last section of the policy contains ellipses, indicating an unfinished policy). As a result, at trial, Dr. Martin was unable to say which, if any, of his draft transfer policies the Gardendale Board ultimately would be willing to implement. (Doc. 1125, p. 293). This violates the instruction in Ross that a proposed splinter district "must express its precise policy positions on each significant facet of school district operation," including "interdistrict pupil assignments." Ross, 559 F.2d at 944.
This official action—or lack thereof—dovetails with the separation organizers' expressed interest in eliminating from the schools within Gardendale's municipal limits students who are bussed into Gardendale from other areas of Jefferson County. Significantly, the transfer chart on page 142 illustrates that the public discussion among Gardendale residents that was critical of transfer students correlates with a nearly 50% decrease in the number of racial desegregation transfer students at Gardendale Elementary and Bragg Middle School. There always have been few racial desegregation transfers to Snow Rogers Elementary, and the racial transfers to Gardendale High School display more of a roller coaster effect, varying from a low of 12 racial desegregation transfers to a maximum of 22 desegregation transfers.
Year African- African- African- White Hispanic American American American Hardship Hardship Racial Employee Hardship Transfers Transfers Desegregation Transfers Transfers Transfers 2009-2010 7 5 0 0 0 2010-2011 16 12 0 3 2 2011-2012 4 11 0 1 3 2012-2013 1 7 0 1 2 2013-2014 0 9 0 1 2 2014-2015 0 11 0 4 0 2015-2016 2 3 0 1 0 2016-2017 7 7 0 0 0
(Derived from Docs. 961-1, 966-3, 975-3, 978-10, 984-4, 999-10, 1033-4, 1106-10). Without more information, the Court cannot say that public criticism of transfer students caused the decline in racial desegregation transfers at Gardendale Elementary and Bragg, but the correlation is unmistakable. The Court will discuss the message conveyed by the separation effort in greater detail below.
In its September 1971 desegregation order, this Court held that the following schools would compose the Gardendale High School feeder pattern: Snow Rogers Elementary School, Mount Olive Elementary School, Gardendale Elementary School, George Rogers Vocational School (which later became Bragg Middle School), and Gardendale High School. (Doc. 226, p. 2). The geographic boundary of the Gardendale zone extended to the south to capture the North Smithfield community. (Doc. 226, Attachments H-3 and H-4; Doc. 1129-9). Thus, while most of the students residing in the City of Gardendale have attended the schools in the Gardendale zone for decades, causing Gardendale's citizens to think of those schools as "OURS," those schools also have belonged to the children of Mount Olive and North Smithfield and all of the other extra-municipal students zoned for Gardendale schools for the past 45 years. Those students rightfully consider Bragg Middle and Gardendale High as their schools too. In 1971, to comply with Alexander and Singleton, the Court placed students from the North Smithfield community in the Gardendale feeder pattern by design to help desegregate student assignments at Bragg and Gardendale High.
Under Gardendale's initial separation plan from March 2015, students from North Smithfield would be eliminated from the schools in the Gardendale feeder pattern over a 13-year period. White and black students from other areas outside of Gardendale's municipal limits also would be phased out, but separation organizers had planned from the outset to recapture the bulk of those white students through annexation of part or all of the Mount
Gardendale recalculated after it realized that the elimination of the North Smithfield students might jeopardize the separation effort. Gardendale's counsel suggested that an adjustment might be necessary during the November 10, 2015 status conference in this case. (Doc. 1045, pp. 18-20). Following the status conference, Gardendale's director of operations did the math and realized that Gardendale could not satisfy the student assignment requirement for splinter districts in section V(c) of the desegregation order with only the live-in population in Gardendale's city limits, so he recommended inclusion of North Smithfield students to meet the student assignment standard. Dr. Martin agreed, and he and his team revised the separation plan, adding all public school students from North Smithfield to the Gardendale municipal school system. (See pp. 1149-50, above). In the words of one of the separation organizers, the new December 2015 separation plan has "the hallmarks of a specific, technical, tactical decision aimed at addressing a recognized road block to breaking away." (Doc. 1132-2, p. 8, Dec. 16, 2015, 2:34 a.m.).
The December 2015 separation plan states that students from North Smithfield will be eligible to attend Gardendale schools as long as tax proceeds follow the students to Gardendale. (Doc. 1131-2, pp. 4, 14). The Gardendale Board's motion for approval of the separation plan states that students from North Smithfield "will be able to attend Gardendale Schools for the indefinite future." (Doc. 1040, p. 5). But the Gardendale Board has not voted on the separation plan. (Doc. 1124, pp. 150-54). That too "has the hallmarks of a specific, technical, tactical decision." Rather than make a commitment to the students in North Smithfield, the Gardendale Board has been waiting to see whether its attorneys could persuade the Court that the 1971 desegregation order does not govern Gardendale's separation. (See Docs. 1097, 1104, 1136 and pp. 151-54, below). If Gardendale does not need the students from North Smithfield to separate, then the board has no incentive to keep those students in the Gardendale system. By delaying a vote on the superintendent's December 2015 separation plan, the board has allowed itself the flexibility to proceed with the December 2015 plan if necessary, revert to the March 2015 plan under which North Smithfield students would be phased out of the Gardendale schools, or choose yet another plan.
Significantly, until the bench trial in this case, neither the Gardendale Board nor Dr. Martin had explained to the citizens of North Smithfield what the phrase "indefinite future" meant. Dr. Martin and a board member have testified that they understand the phrase to mean that North Smithfield students may attend the Gardendale schools as long as their ad valorem tax dollars flow to the City of Gardendale's school system. (Doc. 1124, p. 111; Doc. 1125, p. 174). But the desegregation order is the mechanism that makes those tax dollars flow to Gardendale. Upon dissolution of the desegregation order, absent an agreement between Gardendale and Jefferson County, students from North Smithfield would have no assurance that Gardendale would allow them to continue to attend Gardendale schools. The president of the Gardendale Board acknowledged in his deposition that he does not know what will happen to students from North Smithfield when the Stout desegregation
The Gardendale Board's failure to vote on an inter-district transfer policy or a separation plan that provides a pathway to Gardendale schools for North Smithfield students, coupled with Gardendale's plan to annex part or all of the predominantly white community of Mount Olive, is consistent with the intent of citizens who wish to prevent further shifts in Gardendale's racial demographics. The record demonstrates that the Gardendale Board is trying to evade the Court's desegregation order because some citizens in Gardendale want to eliminate from Gardendale schools the black students whom Jefferson County transports to schools in Gardendale.
Before considering the desegregation order's requirements for splinter districts and the impact of Gardendale's proposed separation on Jefferson County's efforts to comply with the desegregation order, the Court first addresses Gardendale's argument that this Court no longer may supervise student assignments in the Jefferson County school district because in Stout II, the Fifth Circuit Court of Appeals accepted Judge Pointer's finding that Jefferson County had dismantled its prior dual system of public education and declared the county system "unitary." (Docs. 1097; 1104; 1114, pp. 9-16; 1124, pp. 4-7; 1136, pp. 1-2). Gardendale argues that because Jefferson County already has satisfied the Green student assignment factor, Wright and Ross do not apply in this case, and this Court may not enjoin Gardendale's separation absent proof of a new constitutional violation.
Gardendale's argument rests on the type of semantic exercise that the Supreme Court cautioned against in Dowell. As discussed above, in Stout II, the Fifth Circuit Court of Appeals accepted Judge Pointer's finding that the dual system of student assignments in Jefferson County had been "fully dismantled." (See p. 1113, above). The Fifth Circuit used the term "unitary" to describe student assignments in Jefferson County. (See p. 1113, above). But the Fifth Circuit did not release Jefferson County from federal supervision with respect to student assignments or any other Green factor.
The Fifth Circuit labelled student assignments in the Jefferson County district "unitary" because the student populations of many of the schools in the district no longer were racially segregated. As the Supreme Court recognized years later in Dowell, lower courts frequently used the term "unitary" inconsistently, and "a school district could be called unitary and nevertheless still contain vestiges of past discrimination." 498 U.S. at 245, 111 S.Ct. 630; p. 1118, above. The Stout II opinion leaves no doubt that the Fifth Circuit found that the vestiges of past discrimination remained in the Jefferson County district with respect to student assignments. After considering student assignments in the all-black and all-white schools in the Wenonah zone and in Jefferson County generally (where, the Fifth Circuit said,
The Fifth Circuit also made no express finding that the Jefferson County school district had adhered to the goals of the desegregation order in good faith so that the county could be expected to continue to fulfill those goals after dissolution of the desegregation order. The Fifth Circuit was complimentary of the parties, stating that in the five years that the 1971 desegregation order had been in place, "great progress" had been made, "aided by increasing good faith and mutual confidence on all hands," 537 F.2d at 801; but the Fifth Circuit was troubled that a number of one-race schools remained in the district and said that the situation was "to be deplored." Id. at 803. The Fifth Circuit reluctantly affirmed Judge Pointer's decision to deny the plaintiffs' request to re-zone those schools to desegregate the student populations of the schools. Thus, there was nothing remotely akin to a declaration of unitary status in Stout II.
The record demonstrates that neither this Court nor any other has released the Jefferson County district from federal oversight of student assignments or any other Green factor. (Doc. 1127, pp. 105, 115, 120). Jefferson County concedes the point. (Doc. 991, p. 11). As counsel for a number of the municipal splinter districts in Jefferson County pointed out at the November 2014 status conference in this case, the parties have not actively discussed the topic of dissolution of the desegregation order because they have been busy over the past 10 years addressing municipal separations that altered the racial demographics in Jefferson County. (Doc. 991, p. 11). After touring the schools in the Jefferson County system, Gardendale's superintendent reported to the Gardendale Board that the county school board has "an excessive amount of work" to do "across the entirety of the county" to obtain unitary status, and he recommended that the Gardendale Board "do everything to make sure we are not lumped into that process." (Doc. 1125, p. 298; Doc. 1131-23, p. 2). The Court is satisfied that it still has the authority under the 1971 desegregation order to oversee student assignments and proposed separations of splinter districts in Jefferson County.
As an alternative to its argument that the Jefferson County school system already has been declared unitary, at least with respect to student assignments, Gardendale argues more broadly that desegregation orders are outmoded and that enforcement of longstanding desegregation decrees represents federal overreach and interference in matters that are purely local. Gardendale asserts that federal courts improperly use desegregation orders to set education policy. (See, e.g., Doc. 1097, pp. 24-25). In support of its argument, Gardendale highlights an ambitious desegregation order that bears little resemblance to the 1971 Stout desegregation order and efforts to enforce desegregation orders in school districts that already had been declared unitary or never had been subject to federal oversight in the first place. (See Doc. 1097, pp. 23-29 (discussing Jenkins III and Parents Involved); see pp. 1120-21 & n. 22, above (discussing Jenkins III and Parents Involved); see also Doc. 1136-1, p. 2 (citing Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1328-29 (11th Cir. 2005) ("Notably, this case differs from the other school
Implemented as it was in a district that avoided desegregation for 15 years by adopting a variety of ineffective "freedom of choice" plans, the 1971 desegregation order in this case represented a significant departure from prior student assignment plans because the order used zoning to compel the desegregation of the student bodies of white and black schools. The order provides specific benchmarks with respect to only a few of the Green factors and offers tremendous latitude to the Jefferson County Board of Education, allowing the board to select the means by which it will fulfill the requirements of the desegregation order. Unlike the ambitious, expensive court-mandated programs from which the Supreme Court ultimately withdrew support in Jenkins III, there are no provisions in the order that address curriculum, mandate particular programs, or otherwise interfere with the policy responsibilities assigned to the superintendent and the Jefferson County Board of Education. Since this Court entered the 1971 desegregation order, the Jefferson County Board has operated the schools in Jefferson County with little active oversight from this Court.
It is self-evident that the desegregation order in this case is decades-old, but age alone does not render the order unenforceable. The Supreme Court established a standard for the dissolution of desegregation decrees that authorizes a district court to end supervision after a school district has fulfilled the requirements of a desegregation order in good faith, has demonstrated that it will continue to avoid constitutional violations after the conclusion of federal oversight, and has been adjudicated eligible for dissolution of the desegregation order "through the proper judicial procedures." Dowell, 498 U.S. at 245, 249, 111 S.Ct. 630 (citation and internal quotation marks omitted); see also Duval County, 273 F.3d at 965-67.
This Court had begun the process of evaluating the Jefferson County school district when Gardendale proposed its initial separation plan in March 2015. By that time, this case had been reassigned to the undersigned judicial officer, and the Court had met with the parties to discuss with them the process the Court envisioned for moving the Jefferson County school district toward the conclusion of federal supervision. (See pp. 1144-45, above). The Court suspended that process because the parties had to devote their resources to addressing Gardendale's motion for separation. At the pretrial conference, the Court gave Gardendale the opportunity to delay a hearing on its motion for separation for one year so that the parties and
Thus, the Court finds that the 1971 desegregation order is valid and operative in this action. Though the Stout desegregation order remains in force, the Court finds that the splinter district provision concerning student assignments violates Supreme Court precedent concerning racial ratios. That provision states that a splinter system must "make sufficient space available for black students from the county system in such number that, added to the number of black students included in the [] new school zone, equals one-third of the white students included in the [] new school zone." (Doc. 226, p. 9). As discussed above, the Gardendale Board can meet this student assignment requirement only if the Board includes students from North Smithfield in the Gardendale municipal district; Gardendale cannot meet the student assignment requirement if it includes in the Gardendale school district only students within Gardendale's municipal boundaries. (See pp. 1166, above). But the Supreme Court and the Eleventh Circuit Court of Appeals have held that rigid mathematical racial quotas are not appropriate in desegregation orders. (See pp. 1105-06, 1114, above).
As the Court has discussed, it does not appear that the ratio requirement regarding splinter districts in the Stout order was designed to achieve particular racial ratios in Jefferson County's schools but instead was included in the order to deter splinter districts. This is consistent with the Supreme Court's directive in Green that a district court has a "duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Green, 391 U.S. at 438 n. 4, 88 S.Ct. 1689. But the Court has found no exception in the case law to the prohibition against racial ratios in student assignments. Therefore, the Court will not enforce
The Gardendale Board acknowledges that it has not yet fulfilled the desegregation order's requirement that a splinter district "attain the percentage of black faculty and black staff members that exist in the county system at the time of the formation of the new system." (Doc. 226, p. 9; Doc. 1097, p. 13; Doc. 1125, pp. 195-96). Currently, only 4% of the faculty and staff in the schools in the Gardendale feeder pattern are African-American; the Jefferson County Board's workforce is 18% African-American. (Doc. 1097, p. 13; Doc. 1118, ¶ 26). The racial composition of the faculty of the schools in the Gardendale feeder pattern for the years relevant to Gardendale's attempted separation is as follows:
Year Gardendale Snow Rogers Bragg Gardendale High
Elementary Middle
2009-2010 51 white, 2AA 16.7W, 0AA 41.3W, 3AA 64.4W, 1AA
96.2% W 94.4% W 90.2% W 98.5% W
2010-2011 54.1W, 2AA 15.7W, 0AA 41.9W, 2AA 61.4W, 3AA
96.4% W 94% W 91.3%W 95.3%W
2011-2012 53W, 2AA 14.2W, 0AA 41W, 2AA 62.4W, 2AA
96.4% W 90.5% W 91.1% W 96.9% W
2012-2013 55.1W, 1AA 15.7W, 0AA 41W, 3AA 61W, 2AA
98.2% W 100% W 89.1% W 96.8% W
2013-2014 54.8W, 1AA 15.5W, 0AA 41W, 4AA 61W, 2AA
98.2% W 100% W 87.2% W 96.8% W
2014-2015 50W, 0AA 17W, 0AA 40W, 4AA 73W, 2AA
100% W 100% W 87% W 97.3% W
2015-2016 56.5W, 0AA 13.5W, 0AA 37W, 3AA 59W, 5AA
96.6% W 100% W 88.1% W 92.2% W
2016-2017 56W, 1AA 14W, 0AA 36W, 6AA 60W, 5AA
98.3% W 100% W 83.7% W 92.3% W
(Derived from Docs. 961-1, 966-4, 975-5, 978-2, 984-2, 999-2, 1033-2, 1106-2).
Gardendale's superintendent testified that he has plans for increasing the number of black teachers in the Gardendale schools. (Doc. 1125, pp. 196-200). Because the faculty data for the Gardendale schools is based on Jefferson County's hiring and retention practices, were all things equal (i.e., if there were no evidence of racial motivation and if Gardendale's proposed separation would not negatively impact Jefferson County's effort to satisfy the requirements of the Stout desegregation order), the Court would consider giving Gardendale's superintendent the opportunity to implement his plans for all of the schools in the Gardendale zone. Though the record demonstrates that the superintendent never has hired a black teacher in his career, the Court would allow some leeway were it not for the other hurdles to separation.
Gardendale's proposed separation does not satisfy the requirements of Wright and Ross. Under Wright and Ross, a proposed splinter district cannot separate by proving only that the student bodies in the schools in the new district will be racially desegregated. Instead, when the proposed splinter district has "always been a part" of a larger district that formerly was segregated by law, the splinter district must demonstrate that its operation will not harm the parent district's effort to fulfill its obligation to eliminate the vestiges of segregation to the extent practicable. Wright, 407 U.S. at 459, 92 S.Ct. 2196. If Gardendale's separation would "impede the dismantling of the dual system" in Jefferson County, then this Court may enjoin the separation. Id. at 460, 92 S.Ct. 2196. As a matter of law, even if some of the justifications that Gardendale has offered for separation are legitimate, the "existence of a permissible purpose cannot sustain an action that has an impermissible effect." Id. at 462, 92 S.Ct. 2196. And where, as here, one of the reasons offered for separation is "the hope of providing better `quality education' to some children," namely those in the splinter district, the Court may not approve the separation plan if the plan will have "a substantial adverse effect upon the quality of education available to others." Id. at 463, 92 S.Ct. 2196.
Consistent with Wright, to determine whether Gardendale has carried its burden, the Court examines anticipated post-separation racial demographics, facilities and the programs available in those facilities, and the message that Gardendale's proposed separation sends to African-American students who have attended schools in the Gardendale zone pursuant to this Court's desegregation order.
In deciding whether to enjoin the operation of the Gardendale district, the Court must examine the post-separation racial composition of the student populations in the splinter district and in the parent district. Wright explains that in doing so, the Court may look beyond the statistics that Gardendale has offered and consider collateral consequences of a municipal separation. In this regard, Gardendale is mistaken when it suggests that the Court should evaluate the racial composition of the municipal district using student population statistics immediately following the separation. The Court is concerned with the final racial composition of the splinter district and the parent district at the conclusion of the lengthy grandfather period that Gardendale proposes. The Court also is concerned with the specific impact on students who will have to be rezoned because of Gardendale's separation.
By Gardendale's numbers, the municipal system will be more desegregated at the conclusion of the grandfather period because during that 13-year period, Gardendale will phase out more white students than black students. (Doc. 1129-7, p. 1). Gardendale's statistics are not a reliable indicator of the racial composition of the Gardendale district in the years following separation because Gardendale's post-separation
Thus, the student population in a Gardendale municipal district is likely to have a higher percentage of white students and a lower percentage of black students than Gardendale's statistics suggest. If Gardendale were to annex the entire Mount Olive community, black student residency in Gardendale would fall from 20.8 percent to 15.2 percent. (Doc. 1126, p. 69). Based on current sentiment, it seems unlikely that Gardendale will annex all of Mount Olive at this time, but there is a great deal of instability in the area generally speaking. As a practical matter, the proposed 13-year grandfather period makes the ultimate racial composition of the Gardendale district difficult to forecast because so much may change over 13 years.
The record demonstrates that Gardendale's separation would cause the overall student population in the Jefferson County district to become 1.8% more black if the Gardendale system consists only of students residing within Gardendale's municipal limits. (Doc. 1126, pp. 17, 92). If North Smithfield students are zoned for a Gardendale municipal system, then the overall student population in the Jefferson County district would become 1.5% more black. (Doc. 1126, p. 99). On the other hand, if Gardendale annexes portions of Mount Olive and other predominantly white communities, the concentration of black students in the Jefferson County system will increase. (Doc. 1126, pp. 18, 92-93).
Although a 1.5% to 1.8% shift in racial demographics may seem insignificant at first blush,
As discussed above, these separations and annexations have altered the racial composition of the Jefferson County student population continually since 2000.
The direct impact of the separation on students eliminated from the Gardendale zone is clear: students will move from schools that are somewhat desegregated to schools that are extremely segregated. Bragg's current student population is 67.19% white and 29.21% black; Gardendale High School's student population is 71.06% white and 26.54% black. (Doc. 1129-2, p. 1). According to Gardendale's expert demographer, if the Court allows Gardendale to separate under the terms of the December 2015 plan, then Bragg Middle School students who do not reside within Gardendale's city limits or in North Smithfield will attend either Bagley K-8 (now Corner Junior High School) or North Jefferson Middle School. (Doc. 1125, p. 136).
High school students displaced under Gardendale's proposal likewise would attend less racially diverse schools. Under Gardendale's primary plan, students who currently attend Gardendale High School
Black students who attend Gardendale schools on racial desegregation transfers but will be excluded from those schools under Gardendale's plan will either return to their home school where their race is in the majority or attend a new transferee school that is not as conveniently located to their home and is less diverse than the schools in the Gardendale system.
Under Wright and Swann, the Court must consider the location of schools within the parent and splinter districts and the relative quality of those schools. Although Gardendale Board members disparaged Gardendale High School at the bench trial in this matter, managing only the observation that the school has nice curb appeal, the high school facility is the crown jewel of the Gardendale schools and one of the premier school facilities in the Jefferson County system. As one of the organizers stated at the outset of the separation effort, one of the boons of separation would be the city's acquisition of "a brand spanking new high school." (Doc. 1132-2, p. 181, Sept. 12, 2012, 3:03 p.m.). As discussed, Gardendale High School was one of several new schools that Jefferson County built in 2010 using the proceeds of a Jefferson County sales tax. (See p. 1126, above). In his feasibility study, Dr. Harvey recognized that Gardendale's ability under Alabama law to take a brand new high school free of charge put Gardendale in an "unprecedented" situation that was "totally remarkable." (Doc. 1131-32, p. 4).
As discussed, Gardendale High School houses a sophisticated career tech program that serves as a magnet program, attracting students from across the county. (See pp. 1127, above). When it sited Gardendale High School within Gardendale's municipal boundaries and placed a magnet program in the school, the Jefferson County Board accommodated the members of the Gardendale community who wanted the school built in their city. The Jefferson County Board also complied with Swann's requirement that school districts "see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual system." 402 U.S. at 21, 91 S.Ct. 1267.
Given these circumstances, it is not surprising that the private plaintiffs and the United States agreed to the Gardendale location for the new high school and that the Court approved the new school site. The new Gardendale High School is appropriately regarded as one of Jefferson County's desegregatory tools.
If Jefferson County has to forfeit Gardendale High School under Gardendale's separation plan, then the Jefferson County Board of Education will have to build a new high school at a cost of approximately $55 million. (See p. 1127, above; Doc. 1127, p. 137). That is $55 million that Jefferson County will not be able to use to fund other facilities or programming.
If Jefferson County has to build a new school, it may decide to replace Fultondale High School. Doing so would advance Jefferson County's efforts to fulfill its obligations under the desegregation order. Fultondale is one of the remaining facilities in Jefferson County that previously housed an all-black school. Fultondale High School is old and in poor condition; the campus is not remotely comparable to the Gardendale High School campus. (Doc. 1126, p. 63; Doc. 1132-9).
But there is another way that Jefferson County may address the inadequate Fultondale High School facility. If the Court allows Gardendale to separate but prohibits Gardendale from taking the new high school facility, then, because Fultondale is situated near Gardendale (see map on p. 1129), Jefferson County may relocate Fultondale students to the new high school facility in Gardendale and combine students from Fultondale with students from the communities of Mount Olive, Brookside, Graysville, and North Smithfield. The new high school would still boast a successful career tech magnet and would be able to serve as a receiving school for M-to-M transfers. Moreover, the facility probably has the capacity to enable Jefferson County to convert some classrooms to junior high classrooms, thereby compensating for the potential loss of the Bragg Middle School facility to a municipal Gardendale system. Because Fultondale High's student population is nearly racially balanced (see Doc. 1129-2), if the Fultondale student population were housed in a brand new facility that combined students from a number of racially diverse communities, attracted other students from hyper-segregated communities with the career tech magnet, and served as a welcoming receiving school for M-to-M transfer students, then the school easily could become one of Jefferson County's strongest examples of good faith implementation of the Stout desegregation order. This would be a much better use of the facility than the use Gardendale proposes because under Dr. Martin's December 2015 separation proposal, the new high school facility will have only a 54% utilization rate. (Doc. 1125, p. 126). To better use the facility, the Gardendale Board would either have to annex areas to expand the student body or reconfigure the high school to add middle school grades to it.
Unlike Gardendale High School, the other three schools in Gardendale are older and in need of repair. Some of the elementary schools outside of Gardendale's municipal boundaries that feed into Bragg Middle School are newer and in better condition than Gardendale's two elementary
More broadly, and perhaps more importantly, Bragg Middle School and Gardendale High School, and Gardendale Elementary to a lesser degree, have played an important role in Jefferson County's desegregation efforts. Data demonstrates that African-American students have attended those schools via majority-to-minority transfers, promoting desegregation through this voluntary tool. (See p. 1163, above). The schools in Gardendale have received large numbers of transfer students because Gardendale is adjacent to a number of African-American communities, and the transportation that Jefferson County provides is relatively convenient for students who are willing to leave their local school zone. If the Gardendale schools no longer are available for majority-to-minority transfers, then students from African-American communities will have to travel longer distances to take advantage of this transfer opportunity. This may chill students' willingness to transfer and, as a practical matter, reduce or eliminate the usefulness of this desegregatory tool.
This factor weighs in favor of enjoining separation or allowing separation but enjoining the Gardendale system from taking the new high school facility when the municipal district separates.
Finally a district court must consider the timing of the decision to separate and the message that separation will send to black students impacted by the proposed separation. 407 U.S. at 465-66, 92 S.Ct. 2196. Gardendale argues that the timing of its separation weighs in its favor because the proposed separation does not come on the heels of a court order imposing desegregation obligations on the City of Gardendale. This argument overlooks the fact that Gardendale has been trying to separate from the county system for decades. More importantly, as the Court has found, the separation is motivated by Gardendale's desire to define the geographic limits of the district and exclude from the district children who attend Gardendale schools by court order. Citizens in Gardendale do not want to separate because they fear the consequences of an impending desegregation order. Rather, Gardendale has experienced the consequences of the desegregation order in this case, and at least some of the citizens who support separation have had enough. Those citizens have watched the demographics in Gardendale change, and they want to curb that change.
During Gardendale's separation effort, both words and deeds have communicated messages of inferiority and exclusion. The message cannot be lost on children who live in North Smithfield. Words on a public Facebook page that say to North Smithfield students zoned to Bragg and Gardendale High for nearly 50 years that these are "OUR schools" and you should have been removed from them years ago (Doc. 1132-2, p. 183) communicate plainly to black students from North Smithfield the message that these schools are not yours, and you are not welcome here. The assertion by a separation organizer on the Gardendale Schools Facebook page that given that the Gardendale Board "still is answering to Washington and federal judges," he could assure Gardendale residents that the Gardendale Board "didn't just decide to gift a perpetual attendance zone to an area" that would not be paying the Gardendale ad valorem tax "on a whim" and that inclusion of North Smithfield students in the Gardendale system "has the hallmarks" of "a specific, technical, tactical
The message is magnified for black children from Center Point. After Center Point's neighbor to the east, Trussville, separated from the Jefferson County school system, eliminating the most convenient receiving schools for M-to-M transfer students from Center Point, Jefferson County redirected those children to schools in Gardendale, Center Point's neighbor to the west. Gardendale citizens' public rejection of transfer students, particularly those from Center Point (Doc. 1132-2), surely leaves a strong message in the minds of children from Center Point. They must feel that they are unwelcome in predominantly white communities.
And if pictures speak louder than words, then a flyer bearing a photograph of a white student that asks Gardendale voters if they would rather live in an affluent white city or a formerly white city that now is well-integrated or predominantly black communicates an unambiguous message of inferiority. (See Appendix R). There is no way to downplay or sidestep the harm that such a message conveys. Any arguable ambiguity in the flyer is resolved by blatant public statements from separation organizers that "we don't want to become" what Center Point has become, and we need separation to provide "better control of the geographic composition of the student body."
Counsel for the Gardendale Board has emphasized that these statements were not made by members of the Gardendale Board, but no member of the Gardendale Board has said anything, at least not publicly. No member of the board has disavowed the belittling language of exclusion used by separation organizers and supporters. No member of the Board has reached out to students from North Smithfield to say "you have been a part of these schools for 50 years, and we welcome you and want you to be part of them for 50 more." The silence is deafening.
During the separation process, actions were as loud as words. From the outset of the separation effort, separation organizers, including an organizer who became a board member, actively recruited the white community of Mount Olive for the Gardendale school system. None of the organizers engaged parents from North Smithfield. Dr. Martin attended many Gardendale community events to interact with Gardendale parents, but he refused an invitation to meet with parents of students from North Smithfield, ostensibly because he had not had such a meeting with Gardendale parents. Without conferring with parents of students from North Smithfield, in his December 2015 separation plan, Dr. Martin made inclusion of those students in the Gardendale system mandatory after Gardendale's director of operations recognized that the Gardendale system would not be able to meet the desegregation order's student assignment requirement for splinter districts if Gardendale relied only on students living within the city's municipal boundaries. And then Dr. Martin ignored reports that citizens in Gardendale were upset when they learned that North Smithfield students would be allowed to remain in Gardendale's schools, and he failed to appreciate the stigma that students from North Smithfield would bear if they were included in the new municipal system against the wishes of the
The Court believes that Dr. Martin's conduct was unintentional because he has no prior experience working in a racially diverse school district or complying with a desegregation order. The Court also believes that Dr. Martin learned a lot at the bench trial, and the Court recognizes that Dr. Martin was trying to educate himself about the concerns of the private plaintiffs in the months leading to the bench trial. (See pp. 1143-44, above).
During the separation process, the Gardendale Board's silence was matched by its inaction. As discussed, the Gardendale Board has not voted on a separation plan or anything else having to do with transfer students or students from North Smithfield, even preliminarily. (Doc. 1124, pp. 150, 153-54). The Gardendale Board has made no commitment to the students in North Smithfield. The record demonstrates that children in that community have wondered for years where they will go to school. (Doc. 1124, pp. 74-75). The Gardendale Board's representation in its motion to separate that students from North Smithfield may attend Gardendale schools for the "indefinite future" was just that—indefinite. As of the bench trial in this case, the term was undefined. North Smithfield students are living in limbo, thanks to the Gardendale Board's failure to take any action that would bind the Board to provide an education to students in North Smithfield.
Gardendale argues that "courts must open their eyes to the conditions of the present." (See p. 1096, above). The message from separation organizers and from the Gardendale Board is unmistakable. The Court may not turn a blind eye to that message. The message is intolerable under the Fourteenth Amendment. As the Supreme Court recently stated in Pena-Rodriguez v. Colorado, "[i]t must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons." ___ U.S. ___, 137 S.Ct. 855, 867, 197 L.Ed.2d 107 (2017). The messages of inferiority in the record in this case assail the dignity of black school children.
Even if one were to accept Gardendale's argument that the Wright/Ross factors apply only in the brief window of time after a court issues a desegregation order, the Court may still examine post-separation demographics, facilities, and the message that separation conveys under binding precedent. As the Supreme Court explained in Swann, equitable principles govern school desegregation cases. The Supreme Court directed district courts to evaluate school construction and student assignments when considering whether to craft an equitable remedy. (See p. 1105, above). In Brown I, the Supreme Court explained that official action that perpetuates racial stigma (i.e., the message that black students are inferior to white students) violates the Fourteenth Amendment and warrants an equitable remedy.
Given these findings, the Court would be within its discretion if it were
The first concerns the members of the plaintiff class directly impacted by Gardendale's attempt to separate—the black children who do not live in the City of Gardendale but attend the schools in Gardendale under the terms of the desegregation order. The Court is particularly concerned about the students from North Smithfield who are zoned for Gardendale schools. Gardendale residents have complained that it would be unfair for the Court to disallow Gardendale's separation when the Court has permitted other municipal separations over the years. If the Court denies Gardendale's motion to separate, families who remain in Gardendale and attend Gardendale schools under Jefferson County's management may blame students from North Smithfield for Gardendale's inability to operate a municipal system. This puts students from North Smithfield in a catch-22. No matter which system operates the schools in Gardendale, absent a concerted effort by school leaders and members of the Gardendale community, while the memory of Gardendale's separation effort is fresh, students from North Smithfield may feel unwelcome in Gardendale schools. This is a tragic consequence of the way in which the Gardendale Board attempted to separate.
The second practical consideration has to do with the status of the schools in the county system. The Court must balance the interests of the more than 33,000 non-Gardendale students (and their parents) in the Jefferson County district against the interests of the 2,250 Gardendale students whose parents wish to separate. (Doc. 1118, ¶ 24; Doc. 1129-7, p. 1). As soon as Gardendale's motion is resolved, the Court must return to the task of determining whether Jefferson County has eliminated the vestiges of past de jure segregation in good faith to the extent practicable and demonstrated that it will avoid future constitutional violations to the best of its ability so that the Court may release the Jefferson County school district from federal supervision. Were the Court to find in the next year, for example, that the Jefferson County Board has, to the extent practicable, eliminated the vestiges of segregation from student assignments, then the Court could release Jefferson County from federal supervision of student assignments, but the Court would be reluctant to do so if the Gardendale zone remains in the Jefferson County district, given the evidence of racial motivation in this case. If the Court approves a municipal separation, then the Court may tailor supervision to the particular needs of the county district and the municipal district.
The third practical consideration pertains to families in Gardendale who support a municipal separation for reasons that have nothing to do with race. In Wright, the Supreme Court recognized that the "[d]esire for direct control over decisions vitally affecting the education of one's children" logically spurs advocacy for
The fourth practical consideration concerns the interests of students from the community of Mount Olive, the town of Brookside, and the City of Graysville. They too have a stake in the outcome of this litigation. While students in their position often experience the fallout from a municipal separation, the Court, in the exercise of its equitable discretion, may consider the interests of those students, particularly as their interests relate to the new Gardendale High School.
Finally, the Court recognizes that there are no easy answers for the current situation. In a district like Jefferson County that was so resistant to desegregation that the Court had to order non-contiguous zoning, the process of finalizing federal oversight is complex. Difficult discussions must be had about the best zoning options for students as federal supervision comes to a close. History teaches that communities, left to their own devices, re-segregate fairly quickly, in some cases sending the very messages of inferiority that the Supreme Court attempted to address in Brown. The families of students who for years have boarded busses to attend schools outside of their neighborhoods must be consulted and must be part of the conversation about the best way to move forward. In doing the complicated work of dissolving a desegregation order, a court must ensure that the dying embers of de jure segregation aren't once again fanned into flames.
Having considered the record in its entirety, binding precedent from the United States Supreme Court and the Eleventh Circuit, and the practical implications of the available remedies, the Court orders as follows:
The Court has fashioned these remedies for a number of reasons. The Court is giving the Gardendale Board of Education an opportunity to demonstrate good faith. To date, the Gardendale Board has fallen short, but it is a new board with limited training. The Court is giving the Gardendale Board the opportunity to operate elementary schools because skills learned in elementary school prove to be the best predictors of future academic success. This should give Gardendale residents the assurance that they will have local control as their children learn fundamental skills in elementary school. Parents of middle school and high school students who reside in Gardendale and are dissatisfied with Bragg Middle School and/or Gardendale High School have available to them the Jefferson County IB Middle School program and the Jefferson County IB High School program. The latter is consistently ranked the best high school program in the State of Alabama. The Court also notes that if parents who reside in the City of Gardendale have a concern about Bragg Middle and/or Gardendale High School, they have a unique opportunity to make that concern heard because the current president of the Jefferson County Board of Education is a Gardendale resident.
The facilities plan provision in the Court's order accounts for the significant role that the new Gardendale high school facility plays in Jefferson County's desegregation efforts. It accounts for the fact that Jefferson County designed and built the facility to serve all high school students in Jefferson County, and Jefferson County has successfully attracted a racially
(Doc. 226, p. 9).
515 U.S. at 109-10, 115 S.Ct. 2038 (O'Connor, J., concurring) (alteration provided by Jenkins III).
(Doc. 1132-2, p. 124, May 10, 2013, 9:22 p.m.). The Court believes that the statements on the Facebook page reliably convey the sentiments of separation supporters and opponents. To eliminate potential concerns regarding hearsay, the Court focuses its attention on the separation organizers' statements. The Court examines the balance of the remarks not for the truth of the matter asserted—indeed some of the statements about NCLB transfers and "Smithville kids" (an apparent reference to students from the North Smithfield community) are inaccurate—but for what the statements reveal about intent. See, e.g., Jefferson v. Burger King Corp., 505 Fed.Appx. 830, 836 (11th Cir. 2013) (admitting employee complaints against plaintiff because they were offered not for their truth but to show employer's reasons for terminating plaintiff).
The Advisory Committee "morphed into" the Gardendale City Schools Foundation, a 501(c)(3) corporation. (Doc. 1125, pp. 11, 31-33; Doc. 1131-41, pp. 5-6). The president of the foundation is one of the separation organizers. (Doc. 1131-41, pp. 5-6, 18). The Foundation raises money for the Gardendale public schools. (Doc. 1131-41, p. 7). The Gardendale City Council did not pick the members of the Foundation Board. (Doc. 1131-41, p. 9). The Foundation members rarely meet. (Doc. 1131-41, p. 7). As of March 2016, the Foundation had raised $15,000 and distributed $11,000 to teachers in Gardendale's four public schools. (Doc. 1131-41, pp. 7-8).
The Superintendent of the Jefferson County school system, Dr. Craig Pouncey, has met with parents in the North Smithfield community a number of times to discuss Gardendale's proposed separation. (Doc. 1127, p. 108; Doc. 1128, pp. 33-34, 52). Dr. Pouncey also has met with parents from the Brookside and Mount Olive communities. (Doc. 1127, p. 108).
Both the Gardendale superintendent and a member of the Gardendale Board testified that the Gardendale school system would treat students who live outside of Gardendale's municipal boundaries equally, and those students' parents would have equal access to the Gardendale superintendent, but Gardendale currently has no formal policies that embody these concepts. (Doc. 1124, pp. 144-45, 157; Doc. 1125, p. 234-35, 350-51).
(Doc. 1090, ¶ 8).
In discussing the completion of federal oversight, the Court is not deaf to the voices that express concern about the end of federal supervision. (See, e.g., Doc. 1124, p. 45). The good faith requirement that the Court has discussed addresses these concerns. A district court cannot release a public school district from federal oversight if the school board has not demonstrated to the district court that the board will continue to avoid constitutional violations after supervision ends. And the Eleventh Circuit's reminder in Duval County that the courtroom door does not lock behind a public school district as it leaves the courthouse hopefully incentivizes school districts to maintain desegregated school systems to the best of their abilities. 273 F.3d at 976-77.
