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Stout v. Jefferson County Board of Education

United States Court of Appeals, Eleventh Circuit

February 13, 2018

LINDA STOUT, by her father and next friend, Blevin Stout, CATRENA CARTER, LONNELL CARTER, ALFORNIA CARTER, SANDRA RAY, RICKY REEVES, ALENE REEVES, Plaintiffs-Appellants/Cross-Appellees,
JEFFERSON COUNTY BOARD OF EDUCATION, Defendant-Appellee, UNITED STATES OF AMERICA, et al., Intervenor Plaintiffs, GARDENDALE CITY BOARD OF EDUCATION, Defendant-Appellee/Cross-Appellant.

         Appeals from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:65-cv-00396-MHH

          Before WILLIAM PRYOR, JILL PRYOR, and CLEVENGER, [*] Circuit Judges.


         This appeal requires that we revisit the decades-old task of school desegregation. A racial desegregation order issued in 1971 still governs the Jefferson County Board of Education in Alabama. But beginning in 2012, residents of the City of Gardendale, a predominantly white community in Jefferson County, sought to create a separate, municipal school system. Leaders of a grassroots movement used social media to discuss the changing racial demographics of their schools as they campaigned for the creation of a city school board and new taxes to support the proposed school system. In 2015, the newly created Gardendale City Board of Education moved the district court to permit it to operate a municipal school system, but black schoolchildren opposed the motion. The district court found that the Gardendale Board acted with a discriminatory purpose to exclude black children from the proposed school system and, alternatively, that the secession of the Gardendale Board would impede the efforts of the Jefferson County Board to fulfill its desegregation obligations. Despite these findings, the district court devised and permitted a partial secession that neither party requested. We conclude that the district court committed no clear error in its findings of a discriminatory purpose and of impeding the desegregation of the Jefferson County schools, but that it abused its discretion when it sua sponte allowed a partial secession. We affirm in part, reverse in part, and remand with instructions to deny the motion to secede.

         I. BACKGROUND

         We divide our discussion of the background of this appeal in three parts. First, we discuss the early history of this litigation. Second, we discuss the evolution of the Gardendale secession movement. Third, we discuss the motion filed by the Gardendale Board and the order entered by the district court.

         A. The Early History of this Litigation

         In 1965, Linda Stout's father sued the Jefferson County Board of Education on behalf of her and a class of black schoolchildren for "operating a compulsory biracial school system" eleven years after the Supreme Court ruled in Brown v. Board of Education (Brown I), 347 U.S. 483, 495 (1954), that "[s]eparate educational facilities are inherently unequal" and deprive black children "of the equal protection of the laws guaranteed by the Fourteenth Amendment." The district court ordered the Jefferson County Board of Education to devise a plan to begin desegregating its schools in the 1965-66 academic year. And the United States intervened as a plaintiff.

         Dilatory tactics and half-hearted efforts slowed the pace of desegregation. See, e.g., United States v. Jefferson Cty. Bd. of Educ., 372 F.2d 836, 878 (5th Cir. 1966) (Wisdom, J.) (explaining that school-board plans had "little prospect of . . . ever undoing past discrimination or of coming close to the goal of equal educational opportunities"), aff'd en banc, 380 F.2d 385 (5th Cir. 1967); see also, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 13 (1971) (discussing the "[d]eliberate resistance of some to the [Supreme] Court's mandates"). By 1969, black children in Jefferson County had yet to realize the full promise of Brown I. Spurred by the mandate to "terminate dual school systems at once, " Alexander v. Holmes Cty. Bd. of Educ., 396 U.S. 19, 20 (1969), our predecessor circuit consolidated this case with twelve other desegregation cases and directed the district courts to require the immediate merger of "faculties and staff, transportation, services, athletics and other extracurricular activities" as well as the merger of "student bodies, " Singleton v. Jackson Mun. Separate Sch. Dist., 419 F.2d 1211, 1217 (5th Cir. 1969) (en banc). In 1970, the district court entered a comprehensive desegregation order.

         After four predominantly white cities-Pleasant Grove, Vestavia Hills, Homewood, and Midfield-withdrew from the Jefferson County school system and formed municipal school districts, our predecessor circuit directed the district court to "require the school board forthwith to implement a student assignment plan" that "encompasses the entire Jefferson County School District as it stood at the time of the original filing of this desegregation suit." Stout v. Jefferson Cty. Bd. of Educ. (Stout I), 448 F.2d 403, 404 (5th Cir. 1971) (footnote omitted). It declared that "where the formulation of splinter school districts, albeit validly created under state law, have the effect of thwarting the implementation of a unitary school system, the district court may not . . . recognize their creation." Id. (footnote and citation omitted). And it directed the district court to "implement fully" its desegregation order. Id.

         In 1971, the district court issued the desegregation order that still governs the operations of the Jefferson County school system. The 1971 order established school attendance zones, including the Gardendale attendance zone, and comprehensive policies for student assignments, school construction, and the transfer of students between attendance zones. The order included a provision that permits some students to transfer from schools in which their race is in the majority to schools in which their race is in the minority. And it provided that Jefferson County must pay municipal school systems that educate students from unincorporated areas of the County the ad valorem school taxes collected from those areas. The order also established several requirements for municipal systems to secede, including a requirement that a municipal system "make sufficient space available for black students from the county system" so that black student enrollment in a municipal system equals at least one-third of the white student enrollment in the new system.

         In 1972, the Supreme Court ruled in Wright v. Council of the City of Emporia that "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. 451, 470 (1972). The Court explained that the inquiry into whether a splinter district should be permitted to secede depends on its effect, even if the splinter district has a benign motive: "The existence of a permissible purpose cannot sustain an action that has an impermissible effect." Id. at 462. And in Ross v. Houston Independent School District (Ross II), our predecessor circuit made clear that "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). Only if they satisfy that "heavy burden" may a district court permit secession. Id.

         When the Pleasant Grove Board of Education refused to comply with the 1971 order and "accept its role" in the desegregation of the Jefferson County school system, our predecessor circuit affirmed an order that the Jefferson County Board "take up the operation of the Pleasant Grove district schools." Stout v. Jefferson Cty. Bd. of Educ. (Stout II), 466 F.2d 1213, 1214 (5th Cir. 1972). The Fifth Circuit stressed that "[s]overeignty should be returned" to the Pleasant Grove Board only after it "demonstrates to the district court's satisfaction by clear and convincing evidence that it is able and intends to comply with the court's orders concerning its role in the desegregation of the Jefferson County School District." Id. at 1215. To this day, the Pleasant Grove Board has never satisfied that burden.

         In 1976, our predecessor circuit acknowledged that Jefferson County had made "great progress" toward desegregation, but the circuit court cautioned that federal supervision was still required. Stout v. Jefferson Cty. Bd. of Educ. (Stout III), 537 F.2d 800, 801 (5th Cir. 1976). The circuit court affirmed a refusal to require busing between two predominantly white and black school zones as dangerous and infeasible. Id. And it stated that "the former dual school system has been effectively dismantled and a unitary system substituted." Id. at 802. Even so, it determined that the school system still "must continue under the scrutiny and surveillance of the district court, " and it directed that the district court consider "broadening and making more attractive its existing majority-to-minority transfer procedures and . . . strengthening the curriculum to magnet levels in [two] facilities." Id. at 803.

         Predominantly white municipalities continued to secede and slowly, but significantly, change the demographic makeup of the Jefferson County schools. Since the dissolution of the Pleasant Grove school system, three other predominantly white municipalities-Hoover, Trussville, and Leeds-seceded from the Jefferson County school system. And some municipalities later annexed predominantly white communities in the County. In 2003, for example, the City of Vestavia Hills annexed the Cahaba Heights community, the population of which was about 95 percent white as of 2010. And the secession of Trussville and Leeds alone led to about a 3 percentage point decrease in the white population and a 3 percentage point increase in the black population in the Jefferson County school system.

         The cumulative impact of these municipal secessions and suburban growth has been dramatic. In 2000, the student population in the Jefferson County school system was about 75 percent white and 23 percent black. But by 2015, the student population of the school system was approximately 43 percent white and 47 percent black.

         B. The Evolution of the Gardendale Secession Movement

         The Gardendale secession movement started when the schools in that City were becoming racially diverse while the population of the City remained overwhelmingly white. In 1996, the student population in Gardendale was 92 percent white and 8 percent black. The current population of the City has a similar demographic makeup. As of 2010, more than 88 percent of the population was white and less than 9 percent was black. But by 2010, only one of the four public schools in Gardendale, Snow Rogers Elementary School, came close to mirroring the racial demographics of the City. In 2010, Snow Rogers Elementary was about 94 percent white and 4 percent black. The other three schools in Gardendale- Gardendale Elementary, Bragg Middle School, and Gardendale High School- were less than 80 percent white and 20 or more percent black. Gardendale Elementary was about 75 percent white and 20 percent black; Bragg Middle was about 77 percent white and 21 percent black; and Gardendale High was about 75 percent white and 23 percent black. And in later years, the schools continued to become more racially diverse in even starker contrast with the demographics of the City. Snow Rogers Elementary had a student population that was about 85 percent white and 5 percent black during the 2015-16 academic year. Gardendale Elementary was about 71 percent white and 24 percent black. Bragg Middle was about 67 percent white and 29 percent black. And Gardendale High was about 71 percent white and 27 percent black.

         The racial diversity of the schools in Gardendale stems from the attendance of students who reside outside its municipal limits. Students from the predominantly black community of North Smithfield/Greenleaf Heights constitute nearly 30 percent of the black student population at Bragg Middle and more than 25 percent of the black student population at Gardendale High. Students from the unincorporated and predominantly white community of Mount Olive as well as students from the more integrated Town of Brookside and City of Graysville also attend the middle and high schools in Gardendale. Dozens of black students have taken advantage of the majority-to-minority transfer provision in the 1971 order to attend schools in Gardendale. For example, from 2009 to 2016, anywhere from 12 to 22 black students attended Gardendale High annually as transfer students. After the No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301 et seq., required public school boards to permit students attending schools "identified for school improvement" to transfer to schools not so identified, 20 U.S.C. § 6316 (repealed 2015), the district court also amended the 1971 order to permit some black students from less successful schools to transfer to Snow Rogers Elementary and Bragg Middle. Because of capacity issues, the district court permitted only 12 students to transfer to Bragg Middle for each of the relevant years. In sum, Gardendale schools are racially diverse institutions in an otherwise white enclave in large part because zoning and desegregation transfer opportunities permit other Jefferson County students to attend the schools.

         Against this backdrop, four individuals, Tim Bagwell, Chris Lucas, David Salters, and Chris Segroves, launched a campaign to create a municipal school system for Gardendale. Segroves later became the president of the Gardendale Board. Lucas became a member of the Board. And Bagwell and Salters served on an advisory board.

         As part of their campaign, Bagwell, Lucas, and Salters created and maintained a Facebook page titled "Gardendale City Schools." The page was publicly accessible, but the secession leaders served as page administrators with the ability to approve new members, delete posts, and change the privacy settings.

         From the start, the secession leaders expressed concern about the changing demographics of the Gardendale schools. Salters explained in one post that the population of the predominantly white City of Gardendale looked different from the more diverse student population at the Gardendale schools: "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." Bagwell alluded to those demographic differences when he listed among the benefits of a municipal system, "better control over the geographic composition of the student body [and] protection against the actions of other jurisdictions that might not be in our best interests."

         The secession leaders argued that a separate school system would give the residents of Gardendale greater control over their children's education, improve the academic quality of the schools, and permit Gardendale "to control [its] own revenue stream." But the secession leaders never met with representatives of the Jefferson County Board to discuss their grievances, and they struggled to identify specific deficiencies in the County schools. Segroves testified that he "had no involvement in the schools in Jefferson County prior to . . . serving on the [Gardendale] [B]oard." When asked to identify "specific changes that [he] would make if [Gardendale] were allowed to separate, " Salters replied, "Just overall improvements, general improvements of education which are reflected in the size of the school system." And Bagwell stated that "at least historically in many areas, including Alabama, a smaller system with individual local control, historically they tend to perform better academically than larger systems." He added that a municipal school system "seems to be a component for a vital community with higher-than-average growth and desirability."

         The secession leaders and others frequently blamed "non-residents, " particularly students from the predominantly black community of North Smithfield, for allegedly draining resources from the Gardendale schools. In response to a suggestion that racial concerns were animating the movement, Salters stated in a Facebook post that "non-resident students are increasing at a [sic] alarming rate in our schools." "They consume the resources of our schools, our teachers and our resident students, then go home" without "contribut[ing] financially." He stated that he would "welcome those students, " but only if they "move to Gardendale or pay a transfer fee." One online participant put it more bluntly: "[D]id you know we are sending school buses to Center point [sic] and busing kids to OUR schools in Gardendale, as well as from Smithville!" That participant stated that some of the transfer students "have been bused here for years due to the desegregation from decades ago and that should have already been changed because we have a very diverse population now in our area." The participant said, "We are busting at the seams and can't continue on this path!" Salters expressed similar concerns: "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)."

         Secession supporters frequently derided the City of Center Point, a predominantly black community that used to be a predominantly white community and has no municipal school system. In 1970, Center Point was over 99 percent white, but by 2010, about 33 percent of Center Point was white and 63 percent was black. When comparing Gardendale to Center Point, secession leaders warned residents that if they failed to act, Gardendale would follow a similar trajectory. For example, at a public meeting, Salters stated, "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 become. And an online participant asked, "[W]ould you like to live in Center Point or Adamsville?" She "encourage[d] [another online participant] to ride around those areas, maybe even Pinson or Huffman and think about how quickly an area's demographics change." She added, "This is about a community wanting to progress, not regress."

         In contrast with their comments about Center Point, the secession leaders touted the predominantly white community of Mount Olive as a desirable area to be included in the new school system. In a post on Facebook, Lucas contrasted the intended treatment of Mount Olive with that of "minorities." In response to a question about the impact of "[f]ederal desegregation laws" on the proposed secession, he explained that minorities not residing in Gardendale would not be students in the new system, but that Gardendale might annex Mount Olive:

1) Will kids in North Gardendale (who may currently be zoned for county schools in Morris) be zoned for a city school system? Yes. All kids within the municipal boundaries of Gardendale would go to schools within the new system.
2) Would Gardendale be required to bring in minorities from outside of the municipal boundaries to achieve some sort of quota? No. The school system is for residents of Gardendale (whatever those boundaries end up being and whatever that racial make-up is). The idea is that it might include an expansion to include an annexation of certain parts of Mount Olive.

         Indeed, the secession leaders and others regularly discussed the status of Mount Olive, though practical obstacles related to the local fire district ultimately thwarted their intended plans.

         Eventually, the secession leaders "began having conversations with the mayor . . . and the council . . ., and [they] got their backing because any kind of official actions would obviously have to occur through the city, and then the city commission." Lucas explained that "[a]t the end of the day, [city officials have] got to drive the official efforts, but it really became a ground swell of a movement and that was how the whole idea was born." According to Lucas, he and 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."

         In October 2012, the Gardendale City Council commissioned Dr. Ira Harvey to study the feasibility of a Gardendale school system. Harvey concluded that the secession was possible based on estimates that included students from predominantly white Mount Olive but did not include students from predominantly black North Smithfield. Harvey's conclusion stemmed, in large part, from his determination that the municipal school system would acquire debt-free the $51 million Gardendale high-school facility, which though located in the City of Gardendale was financed and constructed by Jefferson County. The siting of the school was proposed by the Jefferson County Board to the plaintiffs and the United States, and the parties agreed that the high school would serve as a regional educational facility with a career technical program to foster voluntary desegregation by encouraging high-school students to enroll in programs outside of their zoned schools. According to the Jefferson County superintendent, Dr. Warren Pouncey, the high school currently serves students who reside in about five different high school zones.

         While Harvey was performing the feasibility study, the secession leaders formed a nonprofit entity called Future of Our Community Utilizing Schools (FOCUS) Gardendale. FOCUS Gardendale existed to raise funds and to lobby for higher property taxes to support the proposed school system. FOCUS Gardendale circulated a flyer that depicted a white elementary-school student and asked, "Which path will Gardendale choose?" It then listed several well-integrated or predominantly black cities that had not formed municipal systems followed by a list of predominantly white cities that had. The flyer described the predominantly white communities as "some of the best places to live in the country."

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         The campaign by the secession leaders succeeded. In September 2013, the City Council approved a five-mill ad valorem tax, and the citizens of Gardendale later voted on a referendum to impose an additional five-mill tax to fund the school system. In 2014, the Council adopted an ordinance that "established a public school system for the City of Gardendale, Alabama, to be known as the Gardendale City School System." Gardendale, Ala., Code § 14-1 (2014). The ordinance also created a Board of Education and vested it with the "power, authority and dut[y]" to, among other things, "maintain and do all things necessary and proper for the management of the Gardendale City School System." Id. ยง 14-4. That same year, the Council appointed the first members of the Gardendale Board, which, under state law, could ...

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