Public Schools in The

Case 2:65-cv-00396-MHH Document 1141 Filed 04/24/17 Page 1 of 190 FILED 2017 Apr-24 PM 05:13 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION LINDA STOUT, et al., ) ) Plaintiffs, ) ) UNITED STATES OF AMERICA, ) ) Plaintiff-Intervenor, ) ) v. ) Case No.: 2:65-cv-00396-MHH ) JEFFERSON COUNTY BOARD OF ) EDUCATION, ) ) Defendant, ) ) GARDENDALE CITY BOARD OF ) EDUCATION, ) ) Defendant-Intervenor. ) MEMORANDUM OPINION AND ORDER “[T]he future of our world revolves around public education. There’s nothing more important that we do” than “educat[ing] our children.” (Doc. 1124, p, 180). That proposition, offered by a member of the Gardendale Board of Education, is perhaps the one point on which all of the parties in this school desegregation case agree. The proposition is sound. In its landmark decision in Brown v. Board of Education, the United States Supreme Court recognized that 1 Case 2:65-cv-00396-MHH Document 1141 Filed 04/24/17 Page 2 of 190 public education is critical for the welfare of our nation’s children. The Supreme Court stated that public education: is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. 347 U.S. 483, 493 (1954). Each of the parties in this case—the parents who serve as the private plaintiffs, the United States, the Jefferson County Board of Education, and the Gardendale Board of Education—is trying to secure the best public education for the students whom the party serves. Though they share the same goal, the parties’ strategies for accomplishing the goal are at odds. Many citizens in the City of Gardendale prefer a municipal public school system to the county-wide system under which the four public schools in the Gardendale community currently operate. Through a grassroots effort, those citizens persuaded the Gardendale City Council to create the Gardendale Board of Education. The Gardendale Board of Education then selected a superintendent, and the superintendent has formulated a plan for Gardendale’s four schools to separate from the Jefferson County public school district. The Gardendale Board has asked the Court to approve the superintendent’s plan of separation. This opinion resolves the Gardendale Board’s motion to separate. (Doc. 1040). 2 Case 2:65-cv-00396-MHH Document 1141 Filed 04/24/17 Page 3 of 190 The Court’s role in assessing Gardendale’s proposed separation from the Jefferson County public school system is limited. For purposes of this school desegregation action, the Court is not concerned with the wisdom of separation generally or the extent to which Gardendale can fund and successfully operate a separate public school system. While certain financial issues touch upon the constitutional analysis that the Court must undertake, it is the task of the school boards and the citizens to whom the boards are accountable to wrestle with fiduciary and financial questions. The Court defers to local decision-makers on matters that do not implicate the Court’s desegregation order. The Court’s desegregation order is designed to remedy the injury that institutionalized racial segregation causes. The Supreme Court’s holding in Brown is simple and unaffected by the passage of time: when black public school students are treated as if they are inferior to white students, and that treatment is institutionalized by state or municipal action, the resulting stigma unconstitutionally assails the integrity of black students. That racial stigma is intolerable under the Fourteenth Amendment. That was true in 1954, and it is true today. The Fourteenth Amendment still requires equal protection of school children under the law. State and municipal action that “generates a feeling of inferiority” in African-American children and treats the students and their parents as second-class citizens violates the Fourteenth Amendment and jeopardizes those 3 Case 2:65-cv-00396-MHH Document 1141 Filed 04/24/17 Page 4 of 190 families’ equal right to pursue a public education and all of the opportunities that stem from public education. 347 U.S. at 494. That injury prompted the Supreme Court to hold in Brown that separate white and black schools are inherently unequal. That injury compelled the Supreme Court’s mandate in Green v. County School Board of New Kent County, Virginia that all vestiges of racial segregation in public schools must be eliminated “root and branch.” 391 U.S. 430, 438 (1968). And that injury led the Supreme Court to prohibit a municipal separation in Wright v. Council of City of Emporia because, under the circumstances, the message of inferiority conveyed by the proposed separation could not “have escaped the Negro children in the county” and that message was likely to have an “adverse psychological effect” on black students. 407 U.S. 451, 466 (1972). The Gardendale Board argues that “things have changed” since the Supreme Court decided Brown, Green, and Wright, that federal courts are “‘tired of school desegregation litigation,’” and that “courts must open their eyes to the conditions of the present when they consider” whether the purported burdens that federal court enforcement of desegregation decrees places “on federalism and the Tenth Amendment are still justified.” (Doc. 1097, pp. 17, 18 (quoting 1 Ronna Greff Schneider, Education Law § 5:10 (Westlaw 2016 update)), 30). The Gardendale Board urges the Court to focus its constitutional analysis on a series of decisions 4 Case 2:65-cv-00396-MHH Document 1141 Filed 04/24/17 Page 5 of 190 that the United States Supreme Court has issued since 1991 and to relegate to the annals of history “older decisions like Green and Wright” and “their aged progeny like Ross [v. Houston Independent School District, 559 F.2d 937 (5th Cir. 1977)] and Stout [v. Jefferson County Board of Education, 466 F.2d 1213 (5th Cir. 1972)].” (Doc. 1097, pp. 17, 30). By logical extension, Brown v. Board of Education, issued in 1954, must fall into the category of civil rights opinions that the Gardendale Board considers out of date. The Court disagrees with the Gardendale Board’s attempt to minimize and compartmentalize early school desegregation decisions. Those decisions are relevant and important in their own right, and those opinions supply the constitutional underpinnings for every school desegregation opinion that has followed. All of the school desegregation decisions that the United States Supreme Court and the Eleventh Circuit Court of Appeals have issued are binding on this Court, meaning that the Court must follow the precedent that those opinions establish. Therefore, to shed light on the complexity of the issues surrounding Gardendale’s motion and to gauge just how much “things have changed” in public education in Jefferson County since 1971, this opinion traces the precedent that the Supreme Court and the Eleventh Circuit Court of Appeals have established from 1954 to the present. That precedent supplies the legal framework for the Court’s 5 Case 2:65-cv-00396-MHH Document 1141 Filed 04/24/17 Page 6 of 190 analysis of Gardendale’s motion to separate. The details of the school desegregation opinions count; short quotes carved from opinions and presented out of context do not adequately convey the holdings in those decisions. The Court supplies that context to help the members of the Gardendale Board, the members of the Jefferson County Board, and the citizens impacted by this decision understand the rationale for the Court’s decision.1 Because the development of the law of public school desegregation is intertwined with the procedural and factual background of this case, the Court will weave the two together before stating its findings of fact and conclusions of law. The Court examines this material with an eye toward answering a significant question that Gardendale’s separation effort presents, namely what becomes of African-American students zoned for decades to a particular feeder pattern for purposes of desegregation when federal oversight nears an end. 1 During the bench trial in this case, the Court reviewed the Gardendale Board’s website. A section of the webpage devoted to this case stated: “In this [brief], we remind the Court and the parties what the law is and how it affects the decision to go forward.” (See Gardendale Board of Education website December 2, 2016 home page, Appendix A). In their briefs, counsel for the Gardendale Board told only part of the story. In one of those briefs, counsel for the Gardendale Board assert that the plaintiffs have “sidestep[ped] the current state of the caselaw” and “stroll[ed] through a historical (but incomplete) recounting of this case’s procedural history.” (Doc. 1104, p. 7). It is fair to say that each party has highlighted the aspects of the record and the case law which each hopes will drive the Court’s decision in this matter. Advocates routinely do that. Though it is a lengthy exercise, the Court has endeavored to provide a balanced description of the relevant aspects of the record and the case law. Because of the size of the record, this opinion does not mention every piece of evidence that the parties introduced at trial or every aspect of the case’s procedural history, but the opinion attempts to summarize as much of the evidence and procedural history as possible. 6 Case 2:65-cv-00396-MHH Document 1141 Filed 04/24/17 Page 7 of 190 PROCEDURAL AND FACTUAL BACKGROUND 1954: Brown v.

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