united states court of appeals - naacp ldf filed gardendale response an… · united states court...

DOCKET NO. 17-12338

United States Court of Appeals

for the

Eleventh Circuit

LINDA STOUT, LONNELL CARTER, ALFORNIA CARTER, SANDRA RAY,

RICKY REEVES, ALENE REEVES, and CATRENA CARTER, on behalf of themselves and others similarly situated,

Plaintiffs-Appellants/Cross-Appellees,

v.

JEFFERSON COUNTY BOARD OF EDUCATION, et al.,

Defendants-Appellees/Cross-Appellants,

GARDENDALE CITY BOARD OF EDUCATION,

Defendant Intervenor-Appellee/Cross-Appellant. _____________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

CASE NO: 2:65-cv-00396-MHH (Hon. Madeline H. Haikala)

PLAINTIFFS-APPELLANTS/CROSS-APPELLEES’

RESPONSE AND REPLY BRIEF

CHRISTOPHER KEMMITT NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 1444 Eye Street NW, 10th Floor Washington, DC 20005 (202) 682-1300 [email protected] U.W. CLEMON U.W. CLEMON, LLC 5202 Mountain Ridge Parkway Birmingham, AL 35222 (205) 837-2898 [email protected]

SHERRILYN A. IFILL President and Director-Counsel JANAI S. NELSON SAMUEL SPITAL JIN HEE LEE MONIQUE N. LIN-LUSE Counsel of Record NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200 [email protected]

Counsel for Plaintiffs-Appellants

Counsel Press (804) 648-3664 * (800) 275-0668

Case: 17-12338 Date Filed: 10/06/2017 Page: 1 of 71

Page C-1 of 4

CERTIFICATE OF INTERESTED PARTIES

Plaintiffs-Appellants/Cross-Appellees Linda Stout, Lonnell and Alfornia

Carter, Sandra Ray, Alene and Ricky Reeves, and Catrena Carter (“Stout Plaintiffs-

Appellants”) make the following disclosures of interested parties pursuant to

Eleventh Circuit Rule 26.1:

1. The Hon. Madeline H. Haikala, United States District Judge, Northern

District of Alabama

2. Alfornia Carter, Plaintiff

3. Catrena Carter, Plaintiff

4. Lonnell Carter, Plaintiff

5. Sandra Ray, Plaintiff

6. Alene Reeves, Plaintiff

7. Ricky Reeves, Plaintiff

8. Parents of all African-American students currently enrolled, or will be

enrolled, in the public schools operated by the Jefferson County

(Alabama) Board of Education

9. NAACP Legal Defense and Educational Fund, Inc. (“LDF”)

10. Sherrilyn Ifill, LDF Attorney for Stout Plaintiffs-Appellants

11. Janai Nelson, LDF Attorney for Stout Plaintiffs-Appellants

12. Jin Hee Lee, LDF Attorney for Stout Plaintiffs-Appellants


Page C-2 of 4

13. Monique N. Lin-Luse, LDF Attorney for Stout Plaintiffs-Appellants

14. Christopher Kemmitt, LDF Attorney for Stout Plaintiffs-Appellants

15. Deuel Ross, LDF Attorney for Stout Plaintiffs-Appellants

16. Samuel Spital, LDF Attorney for Stout Plaintiffs-Appellants

17. U.W. Clemon, LDF Cooperating Local Attorney for Stout Plaintiffs-

Appellants

18. U.W. Clemon, LLC, Attorney for Stout Plaintiffs-Appellants

19. White Arnold & Dowd P.C., former law firm associated with U.W.

Clemon, Attorney for Stout Plaintiffs-Appellants

20. Jefferson County Board of Education (“JeffcoBdEd”), Defendant-

Appellee/Cross-Appellant

21. Jacqueline A. Smith, JeffcoBdEd Member

22. Dr. Martha V. Bouyer, JeffcoBdEd Member

23. Ronnie Dixon, JeffcoBdEd Member

24. Oscar S. Mann, JeffcoBdEd Member

25. Donna J. Pike, JeffcoBdEd Member

26. Dr. Warren Craig Pouncey, Superintendent, JeffcoBdEd

27. Whit Colvin, Attorney for JeffcoBdEd

28. Andrew Ethan Rudloff, Attorney for JeffcoBdEd

29. Carl E. Johnson, Jr, Attorney for JeffcoBdEd


Page C-3 of 4

30. Bishop, Colvin, Johnson, and Kent, LLC, Counsel for JeffcoBdEd

31. Gardendale City Board of Education (“GBOE”), Defendant-Intervenor/

Cross-Appellant

32. Dr. Michael Hogue, GBOE Member

33. Richard Lee, GBOE Member

34. Christopher Lucas, GBOE Member

35. Adams and Reese, LLP, Counsel for GBOE

36. Dr. Patrick Martin, Superintendent, GBOE

37. Stephen A. Rowe, Attorney for GBOE

38. Russell J. Rutherford, Attorney for GBOE

39. Christopher Gamble, Mount Olive resident

40. Aaron G. McLeod, Attorney for GBOE

41. Giles G. Perkins, Attorney for GBOE

42. United States of America, Plaintiff-Intervenor

43. Kelly Gardner, Attorney, United States Department of Justice, Civil

Rights Division (“DOJ”)

44. Veronica R. Percia, Attorney, DOJ

45. Natane Singleton, Attorney, DOJ

46. Shaheena A. Simons, Attorney, DOJ


Page C-4 of 4

47. Sharon D. Kelly, Assistant United States Attorney, Northern District of

Alabama

48. City of Graysville, Alabama

49. Andrew P. Campbell, Attorney for Graysville

50. John C. Guin, Attorney for Graysville

51. Yawanna Neighbors McDonald, Attorney for Graysville

52. Campbell Guin Williams Guy and Gidiere LLC, Counsel for Graysville

53. Town of Brookside, Alabama

54. K. Mark Parnell, Attorney, Town of Brookside

55. Parnell Thompson, LLC, Counsel for Town of Brookside

56. Mary H. Thompson, Attorney for Town of Brookside

57. Roger McCondichie, Brookside resident

58. Dale McGuire, Brookside resident

We certify that no publicly traded company or corporation has an interest in

the outcome of this case either in the District Court or in this Court.

/s/Monique N. Lin-Luse Monique N. Lin-Luse Christopher Kemmitt NAACP Legal Defense and Educational Fund, Inc.

/s/U.W. Clemon U.W. Clemon U.W. Clemon, LL

ATTORNEYS FOR STOUT PLAINTIFFS-APPELLANT


-i-

TABLE OF CONTENTS

PAGE

CERTIFICATE OF INTERESTED PARTIES .....................................................C-1

TABLE OF CONTENTS ........................................................................................... i

TABLE OF AUTHORITIES ................................................................................... iii

SUMMARY OF THE ARGUMENT ........................................................................ 1

I. The District Court Correctly Ruled that Gardendale’s Secession Was Motivated by Intentional Discrimination. ....................................................... 5

A. The Evidence Adduced at Trial Overwhelmingly Supported the District Court’s Factual Finding that Gardendale Sought to Secede from the Jefferson County School District in Order to Control the Racial Demographics of Gardendale’s Schools. ................ 6

1. The History of Municipal Secessions ......................................... 8

2. The Predictable Racial Impact .................................................... 9

3. TheUnmistakable Racial Motive Underlying the Secession Campaign and Adopted by the City of Gardendale ................................................................................ 10

4. Procedural and Substantive Departures .................................... 18

B. Gardendale Attempts to Manufacture Legal Error by Mischaracterizing the District Court’s Opinion. ................................. 23

C. The District Court Did Not Err in Admitting the Facebook Posts Documenting Interactions Between Separation Organizers and Community Members. ......................................................................... 27

II. The District Court Correctly Found that Gardendale Did Not Meet Its Burden to Demonstrate that its Secession Would Not Impede Desegregation in Jefferson County. .............................................................. 30


-ii-

A. Ample Evidence Supports the District Court’s Factual Finding that Gardendale Did Not Meet its Burden for Secession Under Supreme Court Precedent. ................................................................... 35

1. Gardendale Misconstrues the Adverse Impact of Secession on Student Assignment. ........................................... 37

2. Gardendale Misconstrues the Adverse Impact of the Loss of Gardendale High School. ...................................................... 40

3. Gardendale Ignores the Cumulative Impact of Prior Secessions on JBOE’s Desegregation Efforts. ......................... 44

4. The Timing and Message of Gardendale’s Secession .............. 45

B. This Case Is Governed by Wright and Its Progeny. ............................ 47

1. JBOE Remains Subject to the District Court’s Jurisdiction Under an Operative Desegregation Order. ............................... 47

2. Gardendale’s Remaining Arguments for Circumventing Wright and Its Progeny Are Equally Untenable. ...................... 52

C. Wright Demands Fully Enjoining Gardendale’s Secession from Jefferson County, and the District Court’s Contrary Ruling Was Clear Error. .......................................................................................... 56

CONCLUSION ........................................................................................................ 57

CERTIFICATE OF COMPLIANCE ....................................................................... 59

CERTIFICATE OF SERVICE ................................................................................ 60


iii

TABLE OF AUTHORITIES

PAGE(S)

CASES:

Anderson ex. rel. Anderson v. Canton Mun. Separate Sch. Dist., 232 F.3d 450 (5th Cir. 2000) ............................................................................... 40

Anderson v. City of Bessemer, 470 U.S. 564 (1985) .............................................................................................. 6

Bd. of Educ. of Okla. City v. Dowell, 498 U.S. 237 (1991) ............................................................................................ 49

Brown v. Bd. of Educ., 347 U.S. 483 (1954) ............................................................................................ 24

Brown v. Bd. of Educ. of Bessemer, 808 F.2d 1445 (11th Cir. 1987) ..................................................................... 49, 53

Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979) ............................................................................................ 36

Elston v. Talladega Cty. Bd. of Educ., 997 F.2d 1394 (11th Cir. 1993) ........................................................................... 39

Freeman v. Pitts, 503 U.S. 467 (1992) ................................................................................ 36, 47, 52

*Green v. Sch. Bd. of New Kent Cty., 391 U.S. 430 (1968) ....................................................................................... 35-36

Harris ex rel. Harris v. Crenshaw Cty. Bd. of Educ, 968 F.2d 1090 (11th Cir. 1992) ........................................................................... 39

Keyes v. Sch. Dist. No. 1, Denver, 413 U. S. 189 (1973) ........................................................................................... 52

Lee v. Macon Cty. Bd. of Educ., 584 F.2d 78 (5th Cir. 1978) ................................................................................. 47


iv

PAGE(S)

Lee v. Macon Cty. Bd. of Educ., 448 F.2d 746 (5th Cir. 1971) ............................................................................... 33

Lee v. Talladega Cty. Bd. of Educ., 963 F.2d 1426 (11th Cir. 1992) ........................................................................... 47

Lockett v. Bd. of Educ. of Muscogee Cty. Sch. Dist., 111 F.3d 839 (11th Cir. 1997) ............................................................................. 36

Manning ex rel. Manning v. Sch. Bd. of Hillsborough Cty., 244 F.3d 927 (11th Cir. 2001) ............................................................................. 36

McMillan v. Escambia Cty., 638 F.2d 1239 (5th Cir. 1981) ........................................................................ 16-17

Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581 (2d Cir. 2016) ............................................................................ 7, 15

Missouri v. Jenkins, 515 U.S. 70 (1995) .............................................................................................. 36

NAACP, Jacksonville Branch v. Duval Cty. Sch., 273 F.3d 960 (11th Cir. 2001) ................................................................. 41, 43, 50

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976) ....................................................................................... 49-50

Pullman-Standard v. Swint, 456 U.S. 273 (1982). ........................................................................................... 6

Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991) .................................................................................. 7

*Ross v. Houston Independent Sch. Dist., 583 F.2d 712 (5th Cir. 1978) ........................................................ 33, 34, 52-53, 54

*Ross v. Houston Independent Sch. Dist., 559 F.2d 937 (5th Cir. 1977) ......................................................................... 33, 54


v

PAGE(S)

Smith v. Fairview Ridges Hosp., 625 F.3d 1076 (8th Cir. 2010) ............................................................................. 15

Stout v. Jefferson Cty. Bd. of Educ., 845 F.2d 1559 (11th Cir. 1988) ........................................................................... 49

Stout v. Jefferson Cty. Bd. of Educ., 537 F.2d 800 (5th Cir. 1976) ........................................................................ 47, 48

*Stout v. Jefferson Cty. Bd. of Educ., 466 F.2d 1213 (5th Cir. 1972) ......................................................................... 9, 33

*Stout v. Jefferson Cty. of Bd. of Educ., 448 F.2d 403 (5th Cir. 1971) .................................................................... 32-33, 52

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) ................................................................................................ 40

Thomas ex. rel. D.M.T. v. Sch. Bd. St. Martin Parish, 756 F.3d 380 (5th Cir. 2014) ............................................................................... 49

United States v. Englehard Corp., 126 F.3d 1302 (11th Cir. 1997) ......................................................................... 6, 7

United States v. Georgia, 171 F.3d 1344 (11th Cir. 1999) ........................................................................... 47

United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011) ........................................................................... 31

United States v. Lewis, 674 F.3d 1298 (11th Cir. 2012) ............................................................................. 6

United States v. Lowndes Cty. Bd. of Educ., 878 F.2d 1301 (11th Cir. 1989) ..................................................................... 38, 39

United States v. McPhee, 336 F.3d 1269 (11th Cir. 2003) ................................................................... 6, 7, 23


vi

PAGE(S)

United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000) ........................................................................... 31

United States v. Tin Yat Chin, 371 F.3d 31 (2d Cir. 2004) .................................................................................. 32

United States v. Vayner, 769 F.3d 125 (2d Cir. 2014) ................................................................................ 31

*Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ........................................................................... 7-8, 9, 10, 20

Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) ............................................................................................ 16

*Wright v. Council of City of Emporia, 407 U.S. 451 (1972) ..................................................................................... passim

Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027 (11th Cir. 2008) ........................................................................... 16

PAGE(S)

STATUTES & OTHER AUTHORITIES:

Ala. Code § 16-4-4 (1975) .................................................................................................... 43 § 16-8-20 (1975) .................................................................................................. 43

Fed. R. App. P. 28.1(c)(2) 28.1(c)(4) ............................................................................................................... 1

Fed. R. Evid. 901(a) ................................................................................................ 30


1

SUMMARY OF THE ARGUMENT

At trial, Plaintiffs, the Jefferson County Board of Education (JBOE), and the

Department of Justice challenged Gardendale’s efforts to carve a majority-white

municipal school district out of the county’s racially-balanced school system. The

District Court found that Gardendale’s secession bid was motivated by

discriminatory intent and would impede JBOE’s ongoing efforts to desegregate its

schools. Despite making these factual findings, the District Court granted

Gardendale’s motion in part, permitting it to run an elementary-only school system

within its municipal boundaries.

Plaintiffs appealed, arguing that both Wright v. Council of Emporia, 407

U.S. 451 (1972), and the Fourteenth Amendment forbade the District Court from

selecting its chosen remedy. Specifically, Plaintiffs argued that: a) where, as here,

a district court finds that a municipal secession would impede the desegregation

efforts of the county school district, Wright compels the rejection of the municipal

district’s motion to secede; and 2) where, as here, a district court finds that a

municipal district’s secession efforts were motivated by a discriminatory intent, the

secession may not be permitted. Defendant-Intervenor and Cross-Appellant

Gardendale City Board of Education (GBOE or Gardendale) does not dispute

either argument in its Principal and Response Brief, and cannot do so now. See


2

Fed. R. App. P. 28.1(c)(2) & (c)(4) (cross-appellee’s reply must be limited to the

issues raised by the cross-appeal).

Rather than dispute Plaintiffs’ arguments, Gardendale attempts to preempt

them. Gardendale maintains that the District Court’s holdings as to Gardendale’s

discriminatory purpose in seceding, and the negative effect that secession would

have on desegregation in Jefferson County, were predicated on clear errors of fact

and misapplications of the law. These arguments reflect Gardendale’s

mischaracterizations of the District Court’s opinion, and its failure to acknowledge

the evidence before that court. And, because both of the District Court’s rulings

provided independent bases for denying Gardendale the relief it seeks, Gardendale

cannot prevail on appeal unless it proves that both findings were error. This it

cannot do.

First, the District Court correctly ruled that Gardendale’s efforts to secede

from JBOE’s schools were motivated by discriminatory purpose, and therefore

violated the Fourteenth Amendment. The historical background of Gardendale’s

secession, its predictable demographic consequences, the sequence of events

leading to secession, the statements of decisionmakers responsible for secession,

and the procedural and substantive irregularities in the decisionmaking process all

supported the District Court’s conclusion: that Gardendale sought to secede, in

part, because it wished to remove Black children from its schools. Gardendale


3

contends that the District Court’s factual findings are clearly erroneous and that the

Court mistakenly based its ruling on the belief that no state action was required for

a Fourteenth Amendment violation. These contentions fail because they are

premised on Gardendale’s: (a) ignoring or disregarding evidence that it finds

inconvenient, and (b) presenting a characterization of the District Court’s opinion

that is foreclosed by the plain language of the opinion that it purports to describe.

Second, the District Court correctly ruled that Gardendale failed to satisfy

the heavy burden imposed upon it by Wright. The court recognized that this case

is governed by Wright, which has never been questioned or overruled and which

provides the operative test for determining when a municipal school district may

secede from a parent district that is operating under a desegregation order. The

court then considered abundant evidence that Gardendale could not satisfy Wright

because it could not prove that its secession would not impede the desegregation of

Jefferson County’s schools—a process that had been repeatedly waylaid by school

secessions like the one proposed in this case.

In response, Gardendale argues that: 1) Wright does not apply to the factual

circumstances at issue here; 2) Wright is irrelevant because Jefferson County’s

segregated school system was completely dismantled by 1976; and 3) the District

Court clearly erred in analyzing the effect of Gardendale’s secession on

desegregation efforts in Jefferson County. Gardendale’s contentions are


4

unavailing. Its first argument is refuted by the plain language of Wright and by

every other binding school secession case from this Circuit. Those decisions

unequivocally establish that when, as here, a splinter district attempts to secede

from its parent, the splinter district bears the burden of establishing that its

secession will not impede desegregation efforts in the parent.

Gardendale’s second argument attempts to exploit a long-resolved conflict in

the usage of the terms “unitary” and “unitary status” in older school desegregation

cases such as the 1976 Fifth Circuit opinion in this case. The 1976 decision did not

use the term “unitary” in the sense that it is used today—that is, to free the school

district from federal supervision and from its governing desegregation order. That

conclusion is made plain by the resolution of the 1976 appeal, which did not

release Jefferson County from its desegregation order, and from two subsequent

Eleventh Circuit opinions, which stated that no court has ever ruled Jefferson

County to be unitary.

Finally, Gardendale’s third argument is refuted by the ample evidence

supporting the District Court’s finding that Gardendale’s secession would impede

desegregation efforts in Jefferson County. As the District Court found, previous

municipal separations have seriously impeded Jefferson County’s ability to meet

its desegregation obligations by changing its demographics, siphoning off its tax

base, taking its schools, and leaving Jefferson County’s Black students in an


5

increasingly Black and underfunded school district. Gardendale has presented no

evidence that this eminently predictable chain of consequences would not recur

here. On the contrary, the evidence shows that Gardendale’s secession would

impede Jefferson County from complying with its desegregation obligations with

respect to both student assignments and facilities.

I. The District Court Correctly Ruled that Gardendale’s Secession Was Motivated by Intentional Discrimination.

As the District Court’s opinion detailed at length, Gardendale’s secession

violated the Fourteenth Amendment because it was motivated, in part, by a desire

to maintain the predominantly-white character of its public schools. See Doc. 1141

at 138, 151.1 On appeal, Gardendale disputes this ruling, arguing that: 1) the

District Court’s findings of race-based intent were clearly erroneous, see

Gardendale Br. at 24-32; 2) the District Court “ignor[ed]” the need to find state

action as part of its Fourteenth Amendment analysis, see id. at 18-22; and 3) the

District Court’s ruling was premised on the mistaken belief that the Constitution is

a “therapeutic document” that targets “[w]ords alone,” see id. at 22-24. Each of

these arguments is predicated on Gardendale’s disregarding unfavorable evidence

adduced at trial, distorting the bases of the District Court’s ruling, or some

1 References to the District Court record are by docket entry (“Doc.”) followed by the relevant number.


6

combination thereof. The District Court’s finding of intentional discrimination

was not clearly erroneous, and Gardendale’s protestations to the contrary are

uniformly meritless.

A. The Evidence Adduced at Trial Overwhelmingly Supported the District Court’s Factual Finding that Gardendale Sought to Secede from the Jefferson County School District in Order to Control the Racial Demographics of Gardendale’s Schools.

The District Court’s ruling that racial discrimination motivated Gardendale

to secede is a factual finding reviewed for clear error. See Pullman-Standard v.

Swint, 456 U.S. 273, 290 (1982). “Under the clearly erroneous standard, [this

Court] must affirm the district court unless review of the entire record leaves [it]

‘with the definite and firm conviction that a mistake has been committed.’” United

States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003) (quoting United States v.

Englehard Corp., 126 F.3d 1302, 1305 (11th Cir. 1997)). Substantial deference

must be accorded “to the factfinder’s credibility determinations, both explicit and

implicit.” United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012) (citation

omitted). But clear error review is not limited to credibility findings. Although

Gardendale implies otherwise, see Gardendale Br. 26, that standard applies “even

when the district court’s findings do not rest on credibility determinations, but are

based instead on physical or documentary evidence or inferences from other facts.”

Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985). In sum, so “long as the


7

district court’s findings are plausible, [this Court] may not reverse the district court

even if [it] would have decided the case differently.” Englehard, 126 F.3d at 1305

(citation omitted); see also McPhee, 336 F.3d at 1275 (“Where there are two

permissible views of the evidence, the factfinder’s choice between them cannot be

clearly erroneous.”) (citation omitted).

Here, viewing the record in its entirety, the evidence is overwhelming that

race motivated Gardendale’s secession efforts. At a minimum, that is a

permissible view of the evidence. Consequently, the District Court’s factual

findings are not clearly erroneous.

In arguing to the contrary, Gardendale omits large swaths of evidence,

analyzes each piece of circumstantial evidence in isolation and out of context, and

denies that evidence may be probative of racial intent unless a speaker explicitly

declares as much. But Gardendale cannot demonstrate clear error by ignoring

relevant evidence or the plausible inferences to be drawn from it. Nor does a

finding of intentional discrimination require express admissions by state actors that

their conduct was racially motivated. Because “discrimination is rarely admitted,”

Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 610 (2d Cir. 2016),

discriminatory intent is usually proven by reliance on “the cumulative weight of

circumstantial evidence.” Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).

As the Supreme Court has instructed, “[d]etermining whether invidious


8

discriminatory purpose was a motivating factor demands a sensitive inquiry into

such circumstantial and direct evidence of intent as may be available.” Village of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). Here,

that sensitive inquiry shows that the District Court did not clearly err in finding

intentional discrimination.

1. The History of Municipal Secessions

To start, the history of municipal secessions is highly probative of

Gardendale’s intent. See Arlington Heights, 429 U.S. at 267 (noting relevance of

the “historical background of the decision” in analyzing discriminatory purpose).

Gardendale is not the first municipal school district to attempt secession from its

parent district. Following the Supreme Court’s decision in Brown, municipal

secession was a popular gambit among majority-white towns seeking to avoid

increased racial integration in their schools. See, e.g., Wright v. Council of City of

Emporia, 407 U.S. 451, 453 & n.3 (1972) (noting that “the problem [of municipal

secessions] has confronted other federal courts . . . on numerous occasions in

recent years” and citing several examples).

As the District Court noted, JBOE was no stranger to this phenomenon. See

Doc. 1141 at 18-22 & n.7, 27-31, 46-47, 65-67. The overwhelmingly-white

municipality of Mountain Brook seceded from Jefferson County shortly after

Brown. Doc. 1141 at 19 n.7; Doc. 1126 at 28. After the Fifth Circuit required


9

Jefferson County to undertake meaningful integration efforts in 1969, four

majority-white municipalities sought to secede, and three were successful. Id. at

18-22. The fourth municipality was dissolved by the District Court because it

refused to allow Black students to attend its schools. See Stout v. Jefferson Cty.

Bd. of Educ., 466 F.2d 1213 (5th Cir. 1972) (“Stout II”). As Jefferson County has

become an increasingly diverse school district, three more majority-white towns

have seceded. See Doc. 1141 at 46-47, 65-67. In contrast, not a single majority- or

plurality-Black municipality has seceded from Jefferson County in the six decades

after Brown. Gardendale ignores this history.

2. The Predictable Racial Impact

Second, the predictable demographic effects of secession—which likewise

go unmentioned in Gardendale’s brief—support the District Court’s finding that

Gardendale’s secession efforts were motivated by race. See Arlington Heights, 429

U.S. at 266 (explaining that the “impact of the official action whether it ‘bears

more heavily on one race than another,’ may provide an important starting point”

in analyzing discriminatory purpose) (internal citation and quotation omitted).

As the District Court explained, because Gardendale is part of the county

school district, and thus, subject to the desegregation order in this case, its schools

have more Black students than they would absent the order. See Doc. 1141 at 139-

40, 142. Pursuant to that desegregation order, students from the predominantly-


10

Black communities of North Smithfield Manor and Greenleaf Heights (“North

Smithfield”) attend Gardendale public schools, see id. at 76, and JBOE buses racial

desegregation transfer students from majority-Black schools to Gardendale

schools, see id. at 142. If Gardendale’s secession bid were successful, the natural

and probable consequence of that effort would be the same result obtained by its

predecessors in secession like Mountain Brook, Vestavia Heights, and Trussville: a

whiter school system with reduced susceptibility to demographic changes in the

county. Indeed, while the JBOE schools have experienced significant

demographic changes since 1990, the majority-white municipalities that have

seceded from the county school district have been largely impervious to these

demographic changes. See, e.g., id. at 66, 95 n.44, 166.

3. The Unmistakable Racial Motive Underlying the Secession Campaign and Adopted by the City of Gardendale

Third, “the specific sequence of events leading up [to] the challenged

decision,” and the “legislative or administrative history” of Gardendale’s secession

provide powerful evidence of discriminatory intent. Arlington Heights, 429 U.S. at

267, 268. The organizers of the campaign that resulted in Gardendale’s secession

repeatedly broadcast their intentions to halt white flight and create a school district

with fewer Black students. Gardendale tries to dismiss this evidence by describing

those organizers as “private citizens” and “grassroots organizers,” Gardendale Br.


11

at 24, 25, who had no connection to the official actions taken by the City of

Gardendale. But that description is untenable, and it ignores the sequence of

events that resulted in Gardendale’s secession.

To secede, the organizers first had to convince the Gardendale City Council

to impose a 5-mill tax to fund the aspiring school system. See Doc. 1141 at 93-94.

Thus, the organizers’ motives are directly relevant to the motives of Gardendale as

a city. Then, it was the organizers who spearheaded the campaign that led their

fellow citizens to approve a second new tax for the school system. Doc. 1141 at

94-97, Doc. 1131-41 at 13-14. And, finally, the organizers were themselves

appointed to Gardendale’s Board of Education and to a separate board appointed to

advise the GBOE. Far from being the private citizens posited by Gardendale’s

counsel on this appeal, the separation organizers were themselves state actors who

were ultimately responsible for Gardendale’s secession. As the District Court

observed, the organizers successfully “translate[d] their grassroots effort[s] into

official action.” Doc. 1141 at 143.

Gardendale’s secession effort began as the “brainchild” of David Salters and

Chris Lucas. See Doc. 1124 at 186; Doc. 1155 at 187. Along with two other

“core” organizers, Timothy Bagwell and Chris Segroves, they created an advocacy

group, FOCUS Gardendale. See Doc. 1131-41 at 13-14. In order to obtain the

funding necessary for a new municipal school system, the organizers needed to


12

convince their fellow citizens in Gardendale to approve a new tax. While

campaigning in favor of such a tax, the organizers repeatedly evidenced their racial

motives.

For example, at a public meeting held to promote the secession, Salters told

80 attendees: “It likely will not turn out well for Gardendale if we don’t do

this . . . . We don’t want to become what [Center Point] has.” Doc. 1131-43. As

the District Court’s opinion made clear, what Center Point has “become” is Black.

See Doc. 1141 (“Center Point’s public schools which formerly were almost

entirely white have become almost entirely black.”). On another occasion, Salters

responded on the Gardendale City Schools Facebook page to an individual who

asked, “what are specific, factual issues/problems” the secession would address.

Doc. 1132-2 at 185, Sept. 15, 2012, 6:50 p.m. Salters replied, inter alia, “We are

using buses to transport non-residents into our schools (without additional funding)

from as far away as Center Point (there’s your redistribution of wealth).” Id. at

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.” Id. The Gardendale “community” is 8.6%

Black; the Gardendale schools are 25.4% Black. See Doc. 1141 at 74; Doc. 1132-2


13

at 185, Sept. 15, 2012, 7:12 p.m. To Salters, this disparity was an

“issue[]/problem[]” that the secession would address.

Chris Lucas, Salters’ fellow organizer, similarly made clear that he wanted

the Gardendale municipal school district to include the predominantly-white Mt.

Olive community and, in contrast, tried to assure community members that the new

district would not “be required to bring in minorities from outside of the municipal

boundaries.” See Doc. 1131-38 at 11; Doc. 1132-2 at 167, Oct. 2, 2012, 10:53

p.m. Lucas secured the support of State Senator Scott Beason—who had

previously referred to African Americans as “aborigines,” Doc. 1128 at 1270-71;

Doc. 1141 at 93-94—and had Beason draft legislation to annex Mt. Olive into the

City of Gardendale. Doc. 1141 at 93.

Bagwell, another key organizer, stated that the “benefits to [the secession]

proposal” included “better control over the geographic composition of the student

body.” Id. at 181, Sept. 12, 2012, 3:03 p.m. During his deposition, Bagwell also

made clear that he hoped the proposal would stop white flight because “a lot of

[Gardendale] folks [we]re moving . . . to Trussville,” “Vestavia, Hoover, and

Mountain Brook.” Doc. 1131-44 at 13.

As part of its campaign to convince Gardendale residents to vote in favor of

a tax needed for secession, FOCUS Gardendale also created the pro-secession

advertisement with the white elementary school-age girl standing under a banner


14

that read, “Which path will Gardendale choose?” See Doc. 1096-2 at 2; Doc. 1141

at 94-95. The top of the advertisement then included a list of cities that had not

created their own school district and whose schools had become markedly more

Black, while the bottom presented a list of cities that had created their own school

districts and remained predominantly white. See id. As the District Court found,

this advertisement clearly conveyed the racial motive underlying Gardendale’s

secession effort. Doc. 1141 at 177.

Gardendale, however, insists that “[i]t was clear error for the court to infer

racial animus from that document because none is apparent on its face.”

Gardendale Br. at 26. According to Gardendale, “[t]he district court simply

consulted a census for the cities listed and inferred a racial message” without

“explain[ing] why statistics in a census allowed it to infer racial intent in the hearts

of the flyer’s authors.” Id. at 26-27 (citing Doc. 1141 at 94 n.43, 177). Those

assertions are belied by the very pages Gardendale cites.

In fact, the District Court clearly explained why it inferred a racial message.

Citing testimony from one of the private plaintiffs, the District Court explained that

the cities listed at the top of the flyer had significant Black populations. See Doc.

1141 at 94-95. In other words, the sole thread that ties the list of “bad” places that

“chose NOT to form and support their own school system,” see Doc. 1096-2 at 2,

is that their Black population had increased. Doc. 1141 at 94-95 n.43. Thus, as


15

one of the private plaintiffs testified to, the flyer made a fear-based appeal for the

exclusion of Black students. See Doc. 1141 at 95; see also Doc. 1128 at 49 (“[I]t

[h]as an undertone of racism . . . . [T]his is saying if you don’t want . . . the

undesirables and the problem children, you best be forming your own [school]

system.”). Finally, the District Court also explained that “[a]ny 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.’” Doc. 1141 at 177.

Simply put, the language of the FOCUS Gardendale advertisement, and the

statements of the secession organizers, “sen[t] a clear message and carr[ied] the

distinct tone of racial motivations and implications.” Smith v. Fairview Ridges

Hosp., 625 F.3d 1076, 1085 (8th Cir. 2010) (quotation omitted). That the

advertisement used code words and symbols rather than referring expressly to race

is irrelevant. See Mhany Mgmt., 819 F.3d at 610 (affirming “the district court’s

conclusion that citizen opposition to [a zoning decision] utilized code words to

communicate their race-based animus to [city] officials”).

At the conclusion of this campaign, Gardendale residents voted to approve

the tax and fund the secession. Doc. 1141 at 97. For this reason alone, the

statements of the FOCUS Gardendale organizers during the campaign, and the


16

advertisement they disseminated in support of the tax necessary for secession, are

probative of the City of Gardendale’s motives. See Washington v. Seattle Sch.

Dist. No. 1, 458 U.S. 457, 471 (1982) (considering statements made by initiative

sponsors in finding successful referendum was motivated by a racially

discriminatory purpose). Indeed, these statements are a window into the motives

of the community in voting for the tax—a fact that is further underscored by the

various Facebook posts on the Gardendale City Schools’ page that expressed

similar sentiments. See Doc. 1141 at 82-83, 88 n.41, 138-39, 141, 175.

While FOCUS Gardendale was rallying public support for the tax

referendum, the City Council voted for a separate five-mill tax needed to fund the

new schools. The racially-charged atmosphere surrounding the secession

campaign is, in and of itself, probative of the City Council’s motivation in taking

those actions, especially given that Gardendale is a small community of under

14,000 residents. See Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027,

1044 (11th Cir. 2008) (holding that evidence of citizen opposition to the presence

of Hispanic immigrants, voiced at town council meetings and elsewhere, provided

an adequate basis for plaintiff’s claim that a town adopted an overcrowding

ordinance to reduce the amount of housing available to “Hispanic immigrant

workers,” in violation of the Fourteenth Amendment); McMillan v. Escambia


17

County, 638 F.2d 1239, 1247 (5th Cir. 1981). But, here, the link between the

separation organizers’ intent and that of the city council is much more direct.

In fact, FOCUS Gardendale members met with every single member of the

city council to convince them to vote in favor of the tax. Doc. 1141 at 93. And

Lucas explained his role in convincing the mayor and city council members to

support his secession efforts as follows: “Basically, me and David [Salters] put the

mayor and the council in a head lock until they came to their own conclusions that

the school system had to happen. . . . Strong arm tact is what’s required.” Doc.

1124 at 212.

Ultimately, the organizers would be able to effectuate their goals more

directly still. In April 2014, the Gardendale City Council selected five members of

the Board of Education—all of whom were white—and then selected five members

for an advisory board to the school board. Doc. 1141 at 97-100 n.50. Consistent

with the organizers’ influence over the city council in the secession process, the

council chose Lucas and Segroves for the Board of Education, and Salters and

Bagwell for the advisory board. See Doc. 1124 at 170, 187; Doc. 1131-44 at 23;

Doc. 1131-35 at 5. The newly constituted GBOE then proceeded to launch

Gardendale’s separation efforts. Doc. 1141 at 100.

In sum, Gardendale simply ignores the record when it claims that “[w]hat

motivated the grassroots organizers does not bespeak the motivations of the


18

Gardendale Board or the city as a whole in seeking to separate,” and that the lower

court simply “impute[d] to Gardendale the conduct of private persons from before

there was a Board.” Gardendale Br. at 25. Here, the grassroots organizers were

not private citizens whose motivations can be separated from those of the official

decisionmakers. Those organizers convinced their fellow citizens to approve the

referendum needed to secede; they convinced the City Council both to take the

measures necessary to secede and to appoint them to the GBOE and advisory

board; then, they served on the Board that took the final steps in Gardendale’s

secession effort. Under these circumstances, the motives of the secession

organizers are highly probative of the motives of Gardendale as a whole.

4. Procedural and Substantive Departures

Finally, at every turn, GBOE’s actions comported with the organizers’ stated

goals and sought to evade the 1971 desegregation decree in this case. GBOE’s

procedural and substantive departures from legal requirements—and, in particular,

GBOE’s actions with respect the majority-Black North Smithfield community—

confirm that Gardendale’s secession was motivated by discriminatory intent.

At a February 2014 status hearing that preceded Gardendale’s formal

intervention in this case, “[t]hen-counsel for Gardendale acknowledged that

Gardendale understood that ‘every aspect of its operation would have to be

submitted to the court for review.’” Doc. 1141 at 106. A few days later, the


19

Alabama Department of Education sent Gardendale a letter regarding the

Department’s adjudication of certain disputed issues between Gardendale and

Jefferson County pertaining to the proposed separation. See Doc. 1002-5. That

letter also reminded Gardendale that it needed to submit its plans to the District

Court for review: “This decision is subject to the United States District Court’s

jurisdiction in Stout v. Bd. of Educ. . . . That court has the jurisdiction and

authority to review and/or modify this office’s decision to ensure compliance with

federal desegregation laws and the orders of that court.” See id. at 3.

Having received both admonitions in a short span, Gardendale immediately

attempted an end run around the desegregation order and the federal courts. See

Doc. 1003. Gardendale filed a state court action requesting that the Circuit Court

of Jefferson County “relinquish control of the public schools located in the

Gardendale municipal school district to the Gardendale City Board of Education.”

Id. at 2. Gardendale’s state court complaint made no mention of the pending

desegregation order in this case and, though it discussed the February letter from

the Alabama Department of Education, it omitted the provision that mentioned the

necessity of federal court review. Id. at 3. This “[d]eparture[] from the normal

procedural sequence,” is evidence of discriminatory intent, Arlington Heights, 429


20

U.S. at 267, particularly because it was a blatant effort to circumvent the

integration requirements of the desegregation order.

After GBOE moved to intervene in this case, it continued to pursue litigation

strategies that would minimize the inclusion of Black students in its schools. In

March 2015, Gardendale provided the parties and the court with a proposed

secession plan that would exclude the largest group of African-American students

from outside of Gardendale’s municipal boundaries who attended Gardendale’s

schools: the students from North Smithfield. Doc. 1141 at 108. Gardendale did

not revise this plan until its director of operations reviewed section V(c) the 1971

desegregation order and realized that Gardendale did not have enough live-in

Black students to satisfy that section’s requirement for separation. Doc. 1141 at

148-49. Only then did Gardendale propose a new plan of separation that included

North Smithfield. Id. at 1149. Nobody from GBOE consulted with representatives

from North Smithfield before including them in the secession plan, despite the fact

that the new plan would send every elementary school student in North Smithfield

to a new school.

And, while Gardendale moved the District Court for permission to separate

based on this new plan, it did so without having the Board vote on the plan. See id.

The District Court found that this decision was motivated by the Board’s desire “to

see whether its attorneys could persuade the Court that the 1971 desegregation


21

order does not govern Gardendale’s separation,” which would free the Board to

drop the North Smithfield students from the school district and revert to its prior

separation plan. Id. at 1149-50. Gardendale argues that its failure to make a

binding commitment to include North Smithfield students in Gardendale schools

cannot be used as evidence of its intent to exclude Black students because “[i]f the

court adopts th[e secession] plan, its order will become just as binding on

Gardendale as any resolution passed at a Board meeting . . . .” Gardendale Br. at

28. This argument misses the District Court’s point. If Gardendale’s lawyers

persuaded the courts that it should not be bound by the 1971 desegregation order in

this case, Gardendale would not need the District Court’s approval of its separation

plan.

The Board has taken a similar approach to students who currently attend

Gardendale schools as racial desegregation transfers—the students who Salters

referenced when complaining that Gardendale was “using buses to transport

nonresidents into our schools . . . from as far away as Center Point (there’s your

redistribution of wealth).” Doc. 1141 at 81-82; see also id. at 82, 141 (similar

comments by others on the Gardendale City Schools Facebook page). When

Gardendale’s superintendent, Dr. Patrick Martin, first drafted a series of transfer

policies, the president of the Board singled out the racial desegregation transfer

provision—the only provision that provided for the transfer of out-of-district Black


22

students into Gardendale schools—and commented: “Legal team to review and

confirm its applicability/appropriateness for GBOE.” Id. at 144. Various draft

provisions followed, each including “conditions [that] [we]re designed to minimize

or eliminate racial desegregation transfers.” Id.

In addition, despite the legal requirement that Gardendale establish a

“precise policy position[]” on this subject before trial, GBOE never adopted any

transfer policy, and the superintendent could not identify what position the Board

would ultimately be willing to implement. Id. at 145. As the District Court

observed, this decision “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.”

Id.

In sum, the historical background of Gardendale’s secession, its predictable

demographic consequences, the sequence of events leading to secession, the

statements of the decisionmakers responsible for secession, and the procedural and

substantive irregularities from the ordinary decisionmaking process all support the

District Court’s finding of discriminatory purpose. Indeed the District Court’s

findings need only represent a “permissible view[] of the evidence,” which means


23

they were not clearly erroneous and cannot be disturbed on appeal. McPhee, 336

F.3d at 1275.

B. Gardendale Attempts to Manufacture Legal Error by Mischaracterizing the District Court’s Opinion.

The evidence adduced at trial provides ample—indeed, overwhelming—

support for the District Court’s discriminatory intent finding. Faced with that

record, Gardendale attempts to create legal error. Specifically, Gardendale argues

that the District Court erred because it: a) based its discriminatory purpose finding

on the erroneous legal belief that “[w]ords alone . . . violate the Constitution” and

that “Brown v. Board of Education stands for the rule that comments which make

black (or other) students feel inferior violate the Equal Protection Clause,”

Gardendale Br. at 23; and b) relied on Facebook comments by private individuals,

the FOCUS Gardendale flyer, and the Board’s failure to disavow the Facebook

comments in lieu of the requisite state action, see id. at 19-20. Gardendale’s

argument fails because the District Court did not do what Gardendale claims.

Gardendale’s first argument—that the District Court misinterpreted Brown

as holding that “words alone” violate the Equal Protection Clause if they “make

black . . . students feel inferior,” see id. at 23—manages to invert what the District

Court actually said. Indeed, the three pages of the District Court’s opinion cited by

Gardendale conclusively refute Gardendale’s characterization. Gardendale’s first


24

citation for this assertion is to page 3 of the District Court’s opinion. See

Gardendale Br. at 23. But, far from saying that words alone violate the Equal

Protection Clause, the District Court actually explained: “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.” Doc. 1141 at 3

(emphasis added). Gardendale’s second citation fares no better, as the District

Court there stated: “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’ . . . [and] ‘[t]he impact is

greater when it has the sanction of the law . . .’” Id. at 8 (quoting Brown v. Bd. of

Educ., 347 U.S. 483, 494 (1954)) (emphases added). Similarly, Gardendale’s third

citation is to a page where the District Court explained: “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.” See id. at 180 (emphasis added).


25

In sum, Gardendale’s argument fails because it is predicated on Gardendale’s

assertion that the District Court said the opposite of what the court said.

Gardendale also errs by claiming that the District Court “ignor[ed] the[ state

action] limits on the reach of the Equal Protection Clause.” Gardendale Br. at 19.

Under this theory, the District Court held Gardendale liable for violating the

Fourteenth Amendment solely because of Facebook posts by private individuals, a

flyer created by private individuals, and the Board’s failure to disavow the

Facebook comments. See id. at 19-20. This claim misrepresents the District

Court’s opinion and is entirely incorrect.

First, as is clear from the examples above, the District Court repeatedly

emphasized that it understood the relevance of state/official/municipal action and

referenced it throughout the opinion. See also Doc. 1141 at 3, 27, 37 & n.15, 38,

55, 84, 143, 145, 180. Further, the court took great pains to set out the state action

involved in the separation. See, e.g., id. at 84-85, 96-109, 112-27, 135-37, 143-51.

And as the District Court made clear, the Fourteenth Amendment violation

occurred here because “the organizers . . . translate[d] their grassroots effort into

official action.” Id. at 143. The “official action” was “start[ing] a splinter

district,” id. at 84, and attempting to eliminate out-of-district Black schoolchildren

from that splinter district. See id. at 143-51. As discussed in the preceding section,

the record clearly supports that finding: the organizers convinced their fellow


26

citizens to approve the tax needed for secession, convinced the Gardendale City

Council to approve an additional tax and take other necessary steps for secession,

and then were appointed by the city council to the Gardendale Board of Education

(and an advisory board) that attempted to secede.

Second, the District Court did not confuse the Facebook/flyer evidence cited

by Gardendale for “state action.” To the contrary, the Court relied on that

evidence to establish the intent behind the state action—to show that the secession

efforts and GBOE’s attempts to exclude Black school children from the

Gardendale school system (i.e. the “official action” required by the Fourteenth

Amendment) were motivated by race (i.e. the “intent” required by the Fourteenth

Amendment). See Doc. 1141 at 138-43.2

2 Gardendale’s “state action” argument is also predicated on another interpretive error. Gardendale repeatedly bases its claim that the District Court did not consider state action on citations to the Court’s discussion of Wright’s third prong. See Doc. 1141 at 174-80; Gardendale Br. at 19, 20, 21, 23. That section of the opinion, however, does not address the independent Fourteenth Amendment violation resulting from Gardendale’s discriminatory purpose in seceding. See Doc. 1141 at 174-80. It addresses the legally separate question of whether the timing of and message conveyed by the separation weigh in favor of granting the motion to secede—an inquiry that is mandated by Wright, see 407 U.S. at 465-66.


27

In sum, Gardendale’s efforts to inject legal error into the District Court’s

discriminatory-purpose finding are predicated on Gardendale’s flagrant

misrepresentation of the District Court’s opinion.

C. The District Court Did Not Err in Admitting the Facebook Posts Documenting Interactions Between Separation Organizers and Community Members.

GBOE’s final challenge to the District Court’s discriminatory purpose

finding is based, once again, on an incorrect premise. GBOE essentially contends

that the Facebook posts—which were made on a public Facebook page created and

managed by separation organizers to support the separation effort—were

inadmissible because there was no evidence confirming the identity of the authors

of certain posts. See Gardendale Br. at 29-30. But, there was independent

evidence confirming that the separation organizers drafted the relevant posts

attributed to them. And, as the District Court explained, see Doc. 1141 at 83 n.38,

the specific identity of the authors of the remaining posts is irrelevant. Those posts

are significant because they reflect online conversations between individuals who

posted on the page (many of whom were assuredly community members) and the

separation organizers. The District Court correctly admitted the Facebook posts


28

into evidence because they were properly authenticated for that purpose, and

relevant as to the separation organizers’ intent.

Gardendale concedes that Facebook posts by Chris Lucas, a secession

organizer who became a GBOE board member, were properly authenticated.

Gardendale Br. at 29. Gardendale asserts that “the remaining posts that the court

relied on throughout the Opinion appear to have been made by persons . . . as to

whom Plaintiffs did not offer admissible foundational evidence,” id., but that is

incorrect. Timothy Bagwell, another core separation organizer who was later

appointed to the GBOE advisory board, admitted that he was an administrator of

the page and had been an active poster. Doc. 1131-44 at 14. Bagwell specifically

admitted to posting that he wanted a separate school system for “better control over

geographic composition of the student body,” id. at 11—a post highlighted by the

District Court. Doc. 1141 at 139. Bagwell’s deposition, which authenticates his

postings, was admitted into evidence at trial. See Doc. 1131-44 at 11.

Like Bagwell, secession organizer Dave Salters also admitted that he posted

on the Facebook page, and used it as a way of talking about Gardendale’s

separation. Doc. 1131-41 at 16. Not coincidentally, the David Salters who posted

on the Facebook page run by David Salters’ friends and the David Salters who

advocated for the school secession online were both staunch secession supporters

who made arguments about Center Point and the need to avoid demographic


29

change. See, e.g., Doc. 1131-41 at 20 & Ex. 2; see supra at 12-13. Plainly, the

David Salters who posted on Facebook was—as David Salters admitted—David

Salters.

The evidence also indisputably established that the secession organizers not

only posted on the Facebook page, they created and maintained that page. See

Doc. 1131-44 at 6; Doc. 1131-41 at 5; Doc. 1135 at 5; Doc. 1141, at 80. Bagwell

and Lucas had the power to delete posts, approve or reject individuals who wanted

to join the page, delete individuals from the page, and change privacy settings on

the page. Doc. 1131-44 at 14. At times, the administrators exercised their power

to delete posts or individuals from the page. Doc. 1131-44 at 15; Doc. 1141 at 83

n.38. Thus, the posts that the District Court examined were posts that the

separation organizers, who ran the Facebook site in an effort to encourage support

for secession, chose not to delete or rebut. That, in and of itself, is relevant to

understanding the motivations of the secession organizers.

The specific identities of the authors of the remaining Facebook posts are

not relevant to Plaintiffs’ claims. In other words, the Facebook posts are not

helpful to the case because “Misti Boackle” or any other particular, non-organizer

participant made a Facebook post; the posts are relevant because the online

conversations between separation organizers, who ultimately became GBOE

members or advisory board members, and other individuals who posted on the


30

page provide evidence of the motivations behind the separation. That is

particularly true because it can be inferred that most of the individuals who posted

on the Facebook page were Gardendale residents. Notably, the Facebook page

required each member to be approved by the Facebook page administrators (i.e.,

the separation organizers), and, given that this was an intensely local issue,

Gardendale residents would naturally be the most likely to join such a page.

In light of the foregoing, it is clear that Gardendale’s evidentiary objections

to the Facebook posts are unavailing. Contrary to Gardendale’s assertions, the

posts were relevant. They reflect the organizers’ motives for secession, and their

efforts to drum up support within the Gardendale community in support of

secession.

As for authenticity, GBOE does not even dispute that the admitted Facebook

posts are the actual contents of the Facebook page. In other words, GBOE does

not dispute that Plaintiffs “produce[d] evidence sufficient to support a finding that

the item is what the proponent claims it is.” Fed. R. Evid. 901(a). Given their role

as administrators and participants on the Facebook page, the organizers’ own

testimony provides “competent evidence” that the Facebook posts are what

Plaintiffs-Appellants claim them to be: online conversations between community

members and separation organizers expressing community sentiments on the

proposed separation. That is all that is required for the District Court’s


31

admissibility determination to be affirmed on appeal. See United States v.

Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000) (a district court’s authenticity

ruling “should not be disturbed on appeal absent a showing that there is no

competent evidence in the record to support it”) (citation omitted); see also United

States v. Lanzon, 639 F.3d 1293, 1301 (11th Cir. 2011) (authenticating transcripts

of online chats based on testimony of witness that he participated in the chats and

that chat transcripts were accurate copies of the conversations).

GBOE inaptly relies on United States v. Vayner, 769 F.3d 125 (2d Cir.

2014), to argue that Plaintiffs-Appellants must demonstrate that the stated authors

of all of the Facebook posts were the true authors. In Vayner, the court held that

the authentication was insufficient because the proponent of social media evidence

failed to demonstrate that the page belonged to the defendant; but, in that case, the

“profile page was helpful to the . . . case only if it belonged to [the defendant].” Id.

at 131-132 (emphasis added). In other words, in Vayner, individual identity was

important to the purpose for which the webpage was admitted. As discussed, this

case is different. Here, the individual identities of the non-organizer authors of the

Facebook posts are irrelevant.

GBOE was “free to challenge the reliability of the [Facebook posts], to

minimize [their] importance, or to argue alternative interpretations of [their]

meaning, but these and similar other challenges go to the weight of the evidence—


32

not to its admissibility.” United States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir.

2004) (emphasis in original). The District Court’s evidentiary rulings should be

affirmed.

II. The District Court Correctly Found that Gardendale Did Not Meet Its Burden to Demonstrate that Its Secession Would Not Impede Desegregation in Jefferson County.

Even if Gardendale’s secession had not been motivated by intentional

discrimination (which it was), that secession would be invalid under longstanding

Supreme Court and Eleventh Circuit precedent. Pursuant to Wright, “a new school

district may not be created where its effect would be to impede the process of

dismantling a dual system.” 407 U.S. at 470. This Court followed suit by holding

in Stout v. Jefferson County of Board of Education, that “where the formulation of

splinter school districts . . . have the effect of thwarting the implementation of a

unitary school system, the district court may not . . . recognize their creation.” 448

F.2d 403, 404 (5th Cir. 1971) (“Stout I”). Similarly, in Ross v. Houston

Independent School District, this Court held:

The division of a school district operating under a desegregation order can be permitted only if the formation of the new district will not impede the dismantling of the dual school system in the old district. In


33

such a situation, the proponents of the new district must bear a heavy burden to show the lack of deleterious effects on desegregation.

583 F.2d 712, 714 (5th Cir. 1978) (“Ross II”) (internal citations omitted).

Gardendale seeks to minimize its heavy burden by contending that under the

Wright line of cases, “[t]he test is whether separation would have a ‘substantial

adverse effect on desegregation of the county school district.’” Gardendale Br. at

39 (quoting Lee v. Macon Cty. Bd. of Educ., 448 F.2d 746, 752 (5th Cir. 1971)

(emphasis added). Gardendale’s inclusion of the word “substantial” is erroneous.

Although Gardendale accurately quotes the decision in Lee, that decision has been

superseded by Wright, Stout I, Stout II, Ross v. Houston Independent School

District, 559 F.2d 937, 943 (5th Cir. 1977) (“Ross I”), and Ross II. Each of those

cases eschews the modifier “substantial” and focuses on the question whether the

secession will have an adverse effect on desegregation. See Wright, 407 U.S. at

470; Stout I, 448 F.2d at 404; Stout II, 466 F.2d at 1214; Ross I, 559 F.2d at 943;

Ross II, 583 F.2d at 714. Indeed, Wright, which was decided shortly after Lee,

specifically quoted Lee’s “substantial adverse effect” language while discussing

lower court decisions, and then opted for a formulation that did not include the

modifier “substantial.” See Wright, 407 U.S. at 460 (noting that “a proposal must

be judged according to whether it hinders or furthers the process of school

desegregation” and “[i]f the proposal would impede the dismantling of a dual


34

system, then a district court . . . may enjoin it”); id. at 470 (holding that “a new

school district may not be created where its effect would be to impede the process

of dismantling a dual system”).

Gardendale cannot meet its “heavy burden to show the lack of deleterious

effects on desegregation.” Ross II, 583 F.2d at 714 (citation omitted). The District

Court correctly found precisely that, explaining that allowing Gardendale to secede

would impede desegregation in Jefferson County by forcing students to be

transferred from integrated schools to highly-segregated ones, and by causing

Jefferson County to lose a new state-of-the-art high school, which operated as a

desegregation tool, and for which Jefferson County taxpayers had just paid $55

million. The loss of this high school and the money Jefferson County invested in it

would, in turn, limit Jefferson County’s ability to equalize its student facilities and

prevent further white flight.

Unable to meet its burden, Gardendale makes the extraordinary argument

that Wright does not apply because Jefferson County has already achieved unitary

status. That is clearly incorrect. It is beyond question that Jefferson County is

currently subject to a federal desegregation consent order; therefore, the Supreme

Court’s decision in Wright, and this Court’s decisions in Stout I and Ross II,

govern this case. Accordingly, this Court should affirm the District Court’s

finding—supported by ample evidence at trial—that Gardendale did not meet its


35

burden for secession, but reverse the District Court’s ruling, which conflicts with

Wright, Stout I, and Ross II, that Gardendale can nonetheless secede and form its

own school district.

A. Ample Evidence Supports the District Court’s Factual Finding that Gardendale Did Not Meet Its Burden for Secession Under Supreme Court Precedent.

Contrary to GBOE’s assertions, the District Court’s factual finding

regarding the adverse impact of Gardendale’s secession from Jefferson County’s

schools is supported by a substantial record of evidence. GBOE improperly

narrows the evidence to be considered under federal desegregation law and then

inaccurately characterizes the District Court as seeking to advance an amorphous

“diversity” goal. Gardendale Br. at 40-45. Unlike Gardendale, the District Court

properly considered the relevant evidence under established precedent, and

correctly found that allowing Gardendale to secede would undermine

desegregation efforts in Jefferson County.

The standard by which to evaluate school desegregation cases has been

clearly defined by the Supreme Court. In Green v. School Board of New Kent

County, the Court described six areas of operation that must be free from racial

discrimination before full unitary status can be achieved: (1) student assignment;

(2) faculty assignment; (3) staff assignment; (4) extracurricular activities; (5)

facilities; and (6) transportation. 391 U.S. 430, 435 (1968). A court may also


36

consider other ancillary factors, such as quality of education. See Freeman v. Pitts,

503 U.S. 467, 492 (1992).

To achieve unitary status and be released from court supervision, a school

district must prove that it has: (1) fully and satisfactorily complied in good faith

with the court’s desegregation orders for a reasonable period of time; (2)

eliminated the vestiges of prior de jure segregation to the extent practicable; and

(3) demonstrated a good faith commitment to the whole of the court’s order and to

those provisions of the law and the Constitution that were the predicate for judicial

intervention in the first instance. See Missouri v. Jenkins, 515 U.S. 70, 88-89

(1995); Freeman, 503 U.S. at 491-92, 498; Manning ex rel. Manning v. Sch. Bd. of

Hillsborough Cty., 244 F.3d 927, 942 (11th Cir. 2001); Lockett v. Bd. of Educ. of

Muscogee Cty. Sch. Dist., 111 F.3d 839, 842-43 (11th Cir. 1997). A school district

carries the “heavy burden” of proving that it has eradicated discrimination “root

and branch.” Green, 391 U.S. at 438, 439. “Each instance of a failure or refusal to

fulfill this affirmative duty continues the violation of the Fourteenth Amendment.”

Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459 (1979). This longstanding

legal framework is the lens through which this Court and the Supreme Court have

continuously evaluated school districts’ fulfillment of their desegregation


37

obligations, and it was the appropriate standard applied by the District Court in this

case. Doc. 1141 at 152-54, 162-63.

As the District Court explained, permitting Gardendale to secede would

adversely impact Jefferson County’s ability to satisfy its desegregation obligations

with respect to student assignments and facilities. Id. at 162–74. At a minimum,

Gardendale did not present the evidence necessary to satisfy its heavy burden of

showing that its secession would not have a negative effect on desegregation in

Jefferson County.

1. Gardendale Misconstrues the Adverse Impact of Secession on Student Assignment.

GBOE inaccurately refers to the District Court’s concerns about student

assignment as “racial balancing,” Gardendale Br. at 40-42, suggesting that the

District Court sought a specific percentage or quota of Black students in particular

schools. To the contrary, the District Court properly conducted the analysis set

forth by the Supreme Court in Green and its progeny to determine whether the

proposed secession would result in Jefferson County students’ transfers from

racially integrated schools to hyper-segregated schools. Doc. 1141 at 163-69.

First, Gardendale inappropriately minimizes any demographic impact to the

shift in Jefferson County district-wide. Gardendale Br. at 43-44. In determining

the desegregation of a school district, courts must look at the school level and


38

cannot calculate the cumulative effect on desegregation by only using “a district-

or county-wide analysis.” United States v. Lowndes Cty. Bd. of Educ., 878 F.2d

1301, 1305 (11th Cir. 1989). In school separation cases, the court must also

compare the new school district with the parent school system, not just what the

change will be to the demographics of the parent district. Wright, 402 U.S. at 24;

Ross II, 583 F.2d at 714-15 (finding a similar impact on the district-wide

percentages significant because of the significant demographic difference between

the splinter and parent school districts).

And, in any event, prior separations have shown that school secessions

catalyze demographic shifts much larger than the numbers suggested by the

students immediately affected by the secession. For instance, the Leeds and

Trussville separations in the 2000’s directly caused a 3% increase in Jefferson

County’s Black student population and a corresponding 3% decrease in white

student population; however, they helped to spark a 25% drop in the white student

population, and a 20% increase in the Black student population. See Doc. 1141 at

66-67.

With respect to school-level analysis, the District Court expressly found that

“students will move from schools that are somewhat desegregated to schools that

are extremely segregated.” Doc. 1141 at 167. That, in and of itself, means

Gardendale’s secession would interfere with Jefferson County’s desegregation


39

obligations under the first Green factor, irrespective of the racial demographics of

the students affected by such resegregation. See, e.g., Lowndes Cty., 878 F.2d at

1308 (holding that transfer of students, who were virtually all white, from

neighboring counties to majority-white school was constitutionally impermissible);

Elston v. Talladega Cty. Bd. of Educ., 997 F.2d 1394, 1418 (11th Cir. 1993)

(“[T]ransfers are deemed to increase the duality of a school system when they

increase the racial identifiability of the schools in the system.”).

In evaluating student assignment plans, courts also consider whether “the

burden of desegregation [has been] distributed equitably,” as “the burden may not

be placed on one racial group.” Harris ex rel. Harris v. Crenshaw Cty. Bd. of

Educ., 968 F.2d 1090, 1097 (11th Cir. 1992). Gardendale asserts that the burdens

here would not disproportionately impact Black students, but it ignores the fact that

most Black middle school students, unlike their white counterparts, would be

moved “to a school where they will be part of a very small minority community or

to a predominantly black middle school.” Doc. 1141 at 168. The schools where

Gardendale says Black students will “swell the ranks” of their minority include a

99.59% white middle school with one Black student (Bagley Junior High) and a

91.39% white middle school (North Jefferson Middle School). Doc. 1141 at 167-

68. These schools also have racially identifiable faculty and staff which have

almost the exact same racial ratios to students. Doc. 1141 at 160-1; Doc. 1106-1,


40

Doc. 1106-2; Doc.1106-3. Further, Black students who would be transferred to

other schools faced the additional burden of being more likely to have to attend a

new transferee school far from their home. See id. The District Court therefore

correctly found that “the burden of separation falls most heavily on the black

students.” Doc. 1141 at 168.

Finally, Gardendale attempts to minimize the segregative impact of its

secession and previous secessions, deeming them results of “external factors.”

Gardendale Br. at 44-45. But the cause of the resegregation of schools would be

Gardendale’s governmental action, because this Court “cannot tolerate

resegregation of a former dual school system,” GBOE “must demonstrate that [its]

[opening] will not tend to promote such a relapse.” Anderson ex. rel. Anderson v.

Canton Mun. Separate Sch. Dist., 232 F.3d 450, 453 (5th Cir. 2000).

2. Gardendale Misconstrues the Adverse Impact of the Loss of Gardendale High School.

As a Green factor, facilities—includes their siting, comparability, and

construction—are an important consideration in evaluating the desegregation of a

school district. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18-19,

21 (1971) (holding that a school board must take corrective action to ensure that it

maintains schools with “like” facilities and “see to it that future school

construction and abandonment are not used and do not serve to perpetuate or re-


41

establish the dual system”); NAACP, Jacksonville Branch v. Duval Cty. Sch., 273

F.3d 960, 976 (11th Cir. 2001) (favorably discussing school board’s strategic siting

of new schools in areas favorable to “black student mobility” and “naturally

integrated housing patterns”).

Here, Gardendale incorrectly focuses only on the number and racial

demographics of the students who would be immediately displaced from

Gardendale High School (“GHS”). In contrast, the District Court properly

considered the financial, demographic, and instructional impact of the loss of GHS

on JBOE in determining that it would be inappropriate for GBOE to have exclusive

rights to this $55 million high school—paid with the tax dollars of all Jefferson

County residents.

Specifically, the District Court explained that the loss of GHS would place a

substantial financial burden on JBOE by requiring it “to build a new high school at

a cost of approximately $55 million. That is $55 million that Jefferson County will

not be able to use to fund other facilities or programming.” Doc. 1141 at 171-72.

Those “other facilities or programming,” of course, include additional efforts by

JBOE to comply with its desegregation obligations and achieve unitary status.

Such delay in building needed facilities would be a significant setback for JBOE


42

students who would have to be housed in portables or trailers in the interim. Doc.

1157 at 131-32.

Under Wright and Swann, the District Court also properly considered the

quality and location of GHS compared to its neighboring schools and its role in the

county’s facilities planning. Doc. 1141 at 169. JBOE has plans to consolidate

GHS with Fultondale High School, which would have a desegregative effect. Doc.

1141 at 172; Doc. 1157 at 199. The Gardendale separation would prohibit the

consolidation, thereby impeding on what Jefferson County Superintendent Dr.

Warren Pouncey frames as “the epitome of what desegregation was intended to

do” and as “an excellent opportunity for all children in that part of county to come

together and have a great school setting.” Id. at 174-75. Gardendale’s secession

would significantly advance JBOE’s desegregation because Fultondale High

School—an old and deteriorating “inadequate” facility that is not remotely

comparable to GHS—is one of the remaining facilities in Jefferson County that

previously housed an all-Black school from its de jure segregation era. Doc. 1141

at 69 n.26, 172.

Indeed, the District Court found that GHS was properly being used by JBOE

as a desegregative tool, because of its programming and location. Doc. 1141 at

170-172. GHS “houses a sophisticated career tech program that serves as a magnet

program, attracting students from across the county”, which reflects a significant


43

investment of resources. Id. at 70-71, 170. The court rightly found that JBOE

invested in the programs at that facility because of its location and as an incentive

to encourage voluntary participation of students from more segregated schools. As

the District Court noted, this is in line with desegregation efforts endorsed by this

Court. Doc. 1141 at 171 (citing Duval Cty. Sch., 273 F.3d at 976). By contrast,

Gardendale’s secession would take away this important desegregative tool from

Jefferson County. This is supported by the testimony of the superintendent.

Gardendale offers no meaningful response to the District Court’s analysis on this

point.

Finally, it bears noting that Gardendale is wrong in asserting that state law

provides it the absolute right to GHS free of charge. See Gardendale Br. at 47.

Under Alabama state law, newly formed municipal school boards have the

obligation to provide the “same or equivalent facilities” for the county students

who are displaced from a facility that the new municipal system will take over.

Ala. Code § 16-8-20 (1975). The State Superintendent, who would be the final

arbiter of the GBOE’s separation absent federal court supervision and is

responsible for interpreting state education law, see Ala. Code § 16-4-4 (1975),3

3 Pursuant to Alabama law, the State Superintendent must approve the terms of municipal separations.


44

required Gardendale to pay Jefferson County $8,108.555 for GHS, significantly

less than the $55 million needed to build a comparable facility. Doc. 1001-26.

3. Gardendale Ignored the Cumulative Impact of Prior Secessions on JBOE’s Desegregation Efforts.

Another fact properly considered by the District Court, but ignored

altogether by GBOE in its analysis, is the cumulative impact of prior secessions on

JBOE’s efforts to desegregate its school system, which cautions against court

approval of yet another splinter district. As the District Court noted:

The series of municipal separations in Jefferson County has repeatedly shifted the geographic, demographic, and economic characteristics of the Jefferson County district, making it difficult for this Court to find a baseline from which to measure the success of Jefferson County’s efforts to comply with the desegregation order and causing Jefferson County to constantly have to recalibrate its efforts.

Doc. 1141 at 167. The District Court further found that separations and

annexations have distinctly altered the racial composition of Jefferson County’s

student population, resulting in a county student population with fewer white

students. Doc. 1141 at 166. Moreover, the areas annexed by splinter districts

“produce significant tax income, so that the loss of those areas negatively impacts

Jefferson County’s resources.” Id. Undoubtedly, the progressive loss of white

students, coupled with the loss of tax revenue from the parents of those students,

have made it increasingly more difficult for JBOE to fulfill its obligations under


45

the operative federal desegregation order, providing further reason to enjoin

Gardendale’s efforts to create another splinter district. Indeed, with respect to

Gardendale’s secession specifically, Dr. Pouncey described in great detail how the

loss of facilities, transfer opportunities, and the realignment of resources caused by

Gardendale’s separation would limit the desegregative tools available to Jefferson

County. Doc. 1157 at 155, 171, 186.

4. The Timing and Message of Gardendale’s Secession

Finally, in the context of secessions, Supreme Court precedent requires

consideration of an additional factor when analyzing the effect of desegregation

efforts on the parent district: the timing of the secession and the message that it

sends to affected Black students. See Wright, 407 U.S. at 465-66. Here, as the

District Court found, “[d]uring Gardendale’s separation effort, both words and

deeds have communicated messages of inferiority and exclusion” that “assail the

dignity of black school children.”4 Doc. 1141 at 175, 180. This finding, which

spans an entire subsection of the District Court’s opinion, see Doc. 1141 at 174-80,

4 Gardendale argues that one of these messages conveyed through the FOCUS Gardendale advertisement, was not actually distributed to North Smithfield residents, see Gardendale Br. at 9, supra at 19-21; however, this racially motivated advertisement was actually placed in the local newspaper, the North Jefferson News. Doc. 1141-1, R (newspaper details are at the top of the document).


46

strongly supports the District Court’s ultimate ruling that Gardendale’s separation

would impede the desegregation efforts of Jefferson County. But despite the

centrality of this finding to the District Court’s decision, see, e.g., id. at 180 (“The

Court may not turn a blind eye to that message [of inferiority].”), Gardendale fails

to so much as mention it.5 See Gardendale Br. at 39-45. This failure further

confirms that Gardendale’s claims regarding the impact of its secession lack merit.

For the foregoing reasons, the District Court correctly found that

Gardendale’s secession would impede Jefferson County’s efforts to meet its

desegregation obligations. Gardendale certainly did not meet its heavy burden

under Wright and its progeny to establish that there would be no adverse impact.

As such, Gardendale should not have been permitted to secede, even in part, from

Jefferson County. See Plaintiffs’ Opening Br. at 20-24.

B. This Case Is Governed by Wright and Its Progeny.

Unable to meet its burden under Wright, Stout I, and Ross, Gardendale

spends much of its brief arguing that those precedents are not applicable here,

either because Jefferson County has already achieved unitary status or because

5 Gardendale suggests that the Court’s Supplemental Opinion may have rejected the factual findings regarding Jefferson County’s separation that pervade its initial opinion, see Gardendale Br. at 39-40, but no part of the Court’s supplemental opinion supports that conclusion. See Doc. 1152.


47

those cases should not apply to Gardendale’s secession. But Jefferson County has

not achieved unitary status, and Wright and its progeny set forth the controlling

rule for evaluating secession by splinter districts such as Gardendale.

1. JBOE Remains Subject to the District Court’s Jurisdiction Under an Operative Desegregation Order.

Federal judicial supervision and control over a school system subject to a

federal desegregation order continue until the school system has been declared to

have achieved unitary status. Freeman, 503 U.S. at 496-97; Lee v. Macon Cty. Bd.

of Educ., 584 F.2d 78, 81 (5th Cir. 1978); Lee v. Talladega Cty. Bd. of Educ., 963

F.2d 1426, 1430 (11th Cir. 1992); United States v. Georgia, 171 F.3d 1344, 1347,

1348 (11th Cir. 1999). From 1965 to the present, the District Court for the

Northern District of Alabama has maintained supervision, control, scrutiny, and

surveillance over JBOE, which has never attained a declaration of unitary status.

Nevertheless, Gardendale cites to Stout v. Jefferson County Board of Education,

537 F.2d 800 (5th Cir. 1976) (“Stout 1976”) for the repeated proposition that JCSS

has been declared unitary. Gardendale Br. at 16, 19, 35, 50. This position is

patently at odds with Supreme Court precedent, decisions of this Court, JBOE’s


48

own understanding of its status under the desegregation order, statements by

Gardendale’s superintendent, and the evidence in the record.

Ignoring the necessary legal context, Gardendale relies on the following use

of the term “unitary” in Stout 1976:

[W]e agree . . . that the former dual school system has been effectively dismantled and a unitary system substituted here . . . . For here the district court has found, and indeed the United States does not seriously dispute, that in Jefferson County the uprooting of which the Court spoke has been done and a unitary system is operating. . . . Nevertheless, partly in view of the presence of [the three one-race schools] in the system, we conclude that it must continue under the scrutiny and surveillance of the district court.

537 F.2d at 802-03. In its opinion, the District Court discussed in some detail this

language in Stout 1976, noting this Court’s reluctance to approve of the existence

of one-race schools, and thus concluding that “this Court had to continue to

oversee the county system and consider implementation of additional

desegregation practices.” Doc. 1141 at 41-42, 43.6 Thus, as correctly held by the

District Court, the imprecise use of the term “unitary status” in Stout 1976 has no

effect on the viability of the desegregation order and the District Court’s authority

in this case. Doc. 1141 at 154 (“The record demonstrates that neither this Court

6 Gardendale concedes that this use of the word “unitary” was not in the “modern” sense described by the Supreme Court. Gardendale Br. 35, n.14.


49

nor any other has released the Jefferson County district from federal oversight of

student assignments or any other Green factor.”).7

Indeed, on two separate occasions, this Court flatly rejected arguments that

JBOE had been declared unitary. See Stout v. Jefferson Cty. Bd. of Educ., 845 F.2d

1559, 1561-62 n.4 (11th Cir. 1988) (“Jefferson County school system has not yet

been declared unitary.”); Brown v. Bd. of Educ. of Bessemer, 808 F.2d 1445, 1446

(11th Cir. 1987) (“Neither system [Bessemer or Jefferson County] has yet been

declared unitary.”) JBOE has similarly acknowledged that it remains subject to the

federal desegregation order in this case. Jefferson County Br. at 6-7.

More generally, the Supreme Court has acknowledged confusion and

conflicting usage of the word “unitary” and the phrase “unitary status” among the

federal courts, noting that that “a school board is entitled to a rather precise

statement of its obligations under a desegregation decree. If such a decree is to be

terminated or dissolved, [plaintiffs] as well as the school boards are entitled to a

like statement from our court.” Bd. of Educ. of Okla. City v. Dowell, 498 U.S. 237,

245, 246 (1991) (citing Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424

7 The Fifth Circuit has also reached the same conclusion. See Thomas ex. rel. D.M.T. v. Sch. Bd. St. Martin Parish, 756 F.3d 380, 388 (5th Cir. 2014) (finding district court retained jurisdiction in school desegregation case where there had been no unitary status review process required by Supreme Court precedent).


50

(1976)). Thus, the Supreme Court articulated the applicable standard to determine

whether a district has adequately eliminated the vestiges of de jure discrimination

such that it should no longer be subject to federal oversight:

The District Court should address itself to whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable. . . . In considering whether the vestiges of de jure segregation had been eliminated as far as practicable, the District Court should look not only at student assignments, but “to every facet of school operations—faculty, staff, transportation, extra-curricular activities and facilities.”

Dowell, 498 U.S. at 249-50, 251 (citations omitted); see also Duval Cty. Sch., 273

F.3d at 966.

This case has never gone through the process outlined by the Supreme Court

in Dowell to determine whether JBOE has achieved unitary status, thus warranting

dismissal of the desegregation order. There has never been a full review of the

district’s operations for this purpose, a unitary status hearing, or a declaration of

unitary status by any court under the Supreme Court’s standard. In fact, the

Plaintiffs, the United States as Plaintiff-Intervenor, and JBOE were about to

embark on the holistic review, outlined in Dowell, when Gardendale requested a

suspension of that process to focus on its request to secede. Doc. 1141 at 157-58,

Doc. 1114 at 24-27 (Gardendale rejected the District Court’s offer to delay the

resolution of its separation motion while the parties reconvened the unitary status


51

review process to resolve any questions regarding JBOE’s status). And,

Gardendale’s own superintendent reported to the Gardendale Board, after a tour of

the Jefferson County schools, that “an excessive amount of work” has to be done

“across the entirety of the county” in order to achieve unitary status. Doc. 1141 at

154. He therefore recommended that the Gardendale Board of Education “do

everything to make sure we are not lumped into that process.” Id. at 110, 154.

There is also clear evidence that JBOE is not unitary. The District Court

noted that “it appears that the schools in Jefferson County are racially identifiable

based on faculty and staff assignments.” Id. at 162 n.85. The available data

compels the finding and conclusion that the appearance is the reality. The October

16, 2016, JBOE Report to the Court shows thirteen predominately Black (i.e., a

64% or greater Black student population) schools. Doc. 1106-1. While the JBOE

has a 19.7% employment rate for certified Black teachers, a grossly

disproportionate number of those teachers are assigned to the predominately Black

schools. Doc. 1106-2. Of the fourteen Black principals in the JBOE, only two are

assigned to predominately white schools. Doc. 1106-3. Of the certified teachers

assigned to the predominately white schools (i.e., a 64% or greater white student

population), an average of 93.79% are white. Doc. 1106-2. None of the principals

of these predominately white schools are Black. Doc. 1106-3. “Currently, only

4% of the faculty and staff in the schools in the Gardendale feeder pattern are


52

African-American. . . . ”. Doc. 1141 at 160. Put another way, the racial

identifiability of the Jefferson schools is easily reflected today by the faculty and

staff of the schools. Faculty and staff assignments taken with student assignment

have the “clear effect of earmarking” schools as racially identifiable. Keyes v. Sch.

Dist. No. 1, Denver, 413 U. S. 189, 202 (1973); see also Freeman, 503 U.S. at 497

(“[S]tudent segregation and faculty segregation are often related problems.”)

In summary, JBOE falls substantially short on the teacher and staff

requirements of Green. In the comprehensive desegregation plan presently being

negotiated by the Stout class, the United States, and JBOE, close attention must be

devoted to this factor. It alone reflects that the JBOE has not achieved unitary

status, as contended by Gardendale.

2. Gardendale’s Remaining Arguments for Circumventing Wright and Its Progeny Are Equally Untenable.

Because Jefferson County has not been determined to have eliminated the

vestiges of de jure discrimination to the extent practicable, this case is governed by

the rule set forth in Stout I, Wright, and Ross II. Each of these cases stand for the

same proposition: a splinter district may not secede from a parent district that is

operating under a desegregation order unless the splinter district proves that its

secession will not impede the achievement of a unitary school system in the parent

district. See Wright, 407 U.S. 451; Stout I, 448 F.2d at 404; Ross II, 583 F.2d at


53

714. None of these cases has been overruled, undermined, or even criticized by

subsequent decisions of this Court or the United States Supreme Court. Thus, they

remain authoritative law and binding on Gardendale’s bid for separation. The

District Court properly applied the standard set forth by the Supreme Court and

this Court, and ruled that Gardendale failed to meet its burden. Doc. 1141 at 162

(“Gardendale’s proposed separation does not satisfy the requirements of Wright

and Ross.”).

Gardendale makes several additional arguments as to why “the Wright line

of cases does not apply,” Gardendale Br. at 36. None has merit. First, Gardendale

contends that Wright does not apply because Jefferson County is

“incontrovertibl[y]” no longer in the process of “disestablishing its former dual

system”—a condition precedent for Wright’s application. See id. As explained in

greater detail above, this Court has explicitly held that the Jefferson County school

system has not been declared unitary. See Bd. of Educ. of Bessemer, 808 F.2d at

1446. Gardendale’s position on this matter was rightly rejected by the District

Court, see Doc. 1141 at 152-54, and even disputed by JBOE itself, see Jefferson

County Br. at 6-7. Gardendale’s argument is also foreclosed by Ross II, which

makes clear that a school system is still in “the process of dismantling a dual

system,” see Wright, 407 U.S. at 470, if it is “operating under a desegregation

order.” Ross II, 583 F.2d at 714. Because Jefferson County is still operating under


54

the 1971 desegregation order—as Gardendale concedes, see Gardendale Br. at 5—

Wright, Stout I, and Ross II control the resolution of this dispute.

Gardendale’s second argument is that Wright applies only to the “embryonic

stages of [a school district’s] desegregation.” Gardendale Br. at 36. But, this

assertion is not supported by citation to any legal authority. See id. Indeed, it

directly contradicts Wright, which included no such limitation in its holding that “a

new school district may not be created where its effect would be to impede the

process of dismantling a dual system.” Wright, 407 U.S. at 470. Gardendale’s

argument also conflicts with Ross II, which made clear that the rule concerning

splinter districts applied whenever “a school district [is] operating under a

desegregation order,” as is the case here. Ross II, 583 F.2d at 714. Ross II

examined a proposed splinter district in 1978, see id., in a desegregation case that

had begun two decades earlier in 1956, see Ross I, 559 F.2d at 939, which was

hardly the “embryonic” stage of that school district’s desegregation efforts.

Gardendale’s third argument is that “Wright does not apply” because “the

concerns animating that decision are not present.” Gardendale Br. at 37.

Specifically, Gardendale claims that Wright was animated by the timing of the

separation at issue in that case. Because the splinter district in that case sought to

separate immediately after the district court issued an order that would have

integrated its schools, the proposed separation communicated a message of


55

inferiority to Black school children. That concern, Gardendale argues, is absent

here because Gardendale has been subject to the same desegregation order since

1971, so its departure cannot be a response to integration. See id. This argument

finds no support in Wright or in the facts of this case.

The Supreme Court in Wright unequivocally held that its animating concern

was “a new school district . . . imped[ing] the process of dismantling a dual

system,” Wright, 407 U.S. at 470, and the District Court was similarly unequivocal

in finding that concern present in this case. Doc. 1141 at 151-80. The timing of

the splinter district’s separation was one “factor” relied on by Wright to determine

whether the separation would impede the parent district’s desegregation efforts, but

nothing in Wright suggests that its holding is applicable only when a school seeks

to secede immediately after an order requiring integration. See Wright, 407 U.S. at

465-66. In addition, the District Court specifically found that Gardendale’s

secession efforts communicated the same message of inferiority to Black students

as the splinter district’s separation efforts in Wright. See Doc. 1141 at 174-80. As

the District Court found, Gardendale was trying to separate because it

“experienced the consequences of the desegregation order in this case”—namely,

an increased percentage of Black students in their schools—and wanted to avoid

those consequences. See id. The timing may have been different, but the message

of inferiority sent to Black students was the same.


56

Finally, Gardendale argues that its reading of Wright “is reinforced by the

imperatives of federalism and local control.” Gardendale Br. at 38. In essence,

Gardendale quotes short snippets of factually distinct cases that laud “local

control” and claims that these quotes should somehow influence this Court’s

interpretation of Wright. To the contrary, none of these cases undermines or

overrules Wright. Consequently, they cannot alter the plain meaning of Wright’s

holding, and Wright and Ross remain binding law in this matter.

C. Wright Demands Fully Enjoining Gardendale’s Secession from Jefferson County, and the District Court’s Contrary Ruling Was Clear Error.

Having properly found that GBOE’s secession would impede JBOE’s ability

to meet its desegregation obligations, the District Court was bound by Wright to

completely stop Gardendale’s secession from Jefferson County. In its cross-

appellant brief and response, GBOE does not directly respond to Plaintiffs’

principal appeal brief regarding the remedy required by Wright, instead

erroneously arguing that Wright should not apply. See supra Section II.B at 47-56.

GBOE, therefore, waived any rebuttal to what Wright, if applicable, requires.

Accordingly, if this Court holds that Wright applies in this case (which it does), the

Court should likewise find that the District Court committed clear error with


57

respect to its remedy and order that GBOE be completely enjoined from seceding

and operating its own separate school system.

CONCLUSION

For the foregoing reasons, Plaintiffs-Appellants respectfully request that this

Court affirm the District Court’s rulings with respect to Gardendale’s

discriminatory purpose and failure to meet its burden under Wright, but reverse the

District Court’s approval of a new Gardendale School District.

Respectfully Submitted, /s/ Monique N. Lin-Luse SHERRILYN A. IFILL

President and Director-Counsel JANAI S. NELSON SAMUEL SPITAL JIN HEE LEE MONIQUE N. LIN-LUSE Counsel of Record NAACP LEGAL DEFENSE EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 Tel: (212) 965-2200 Fax: (212) 226-7592 [email protected]


58

U.W. CLEMON U.W. CLEMON, LLC 5202 Mountain Ridge Parkway Birmingham, AL 35222 Tel.: (205) 837-2898 Fax: (205) 798-2577 [email protected]

CHRISTOPHER KEMMITT NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 1444 Eye Street NW 10th Floor Washington, D.C. 20005 Tel: (202) 682-1300 Fax: (202) 682-1312 [email protected] Attorneys for Plaintiffs-Appellants


59

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) as the brief contains 12,921 words, excluding those parts exempted by

11th Cir. Local R. 32-4.

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) as this brief has been

prepared in a proportionally spaced typeface using Microsoft Word in 14 point

Times New Roman font.

/s/Monique N. Lin-Luse

MONIQUE N. LIN-LUSE NAACP Legal Defense and Educational Fund, Inc.


60

CERTIFICATE OF SERVICE

I hereby certify that on October 6, 2017, 7 copies of the brief were dispatched

for delivery to the Clerk’s Office of the United States Court of Appeals for the

Eleventh Circuit by third-party commercial carrier for overnight delivery at the

following address:

David J. Smith

Clerk of Court

U.S. Court of Appeals for the 11th Circuit

56 Forsyth St., N.W.

Atlanta, Georgia 30303

On this same date, a copy of the brief was served on all counsel of record via

CM/ECF or in some other authorized manner for those counsel or parties who are

not authorized to receive electronic Notices of Electronic Filing.

/s/ Simone Cintron

Counsel Press

460 West 34th Street

New York, New York 10001

(212) 685-9800

Filing and service were performed by direction of counsel


united states court of appeals - naacp ldf filed gardendale response an… · united states court...

Documents