Allen v. Alabama State Bd. of Educ.

• Decision Date: 25 February 1986
• Docket Number: Civ. A. No. 81-697-N.
• Parties: Margaret T. ALLEN, etc., et al., Plaintiffs, Board of Trustees for Alabama State University; and Eria P. Smith, Plaintiff-Intervenors, v. The ALABAMA STATE BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

636 F. Supp. 64

Margaret T. ALLEN, etc., et al., Plaintiffs, Board of Trustees for Alabama State University; and Eria P. Smith, Plaintiff-Intervenors, v. The ALABAMA STATE BOARD OF EDUCATION, et al., Defendants.

Civ. A. No. 81-697-N.

United States District Court, M.D. Alabama, N.D.

February 5, 1986.

Supplemental Memorandum February 25, 1986.

Donald V. Watkins, Watkins, Carter & Knight, Montgomery, Ala., James U. Blacksher, Gregory B. Stein, Blacksher, Menefee & Stein, Mobile, Ala., Solomon S. Seay, Jr., Terry G. Davis, Seay & Davis, Montgomery, Ala., for plaintiffs.

Charles Coody, Gen. Counsel, Montgomery, Ala., for defendants.

T.W. Thagard, Jr., David Boyd, Balch, Bingham, Montgomery, Ala. for Ala. State Bd. of Educ., Tyson, Creel, Cherry, Higginbotham, Poole, Martin, Allen, Roberts and Teague.

Algert Agricola, Patrick Robinson, Rosa Davis, Asst. Attys. Gen., Montgomery, Ala., for Bd. of Educ. and Teague.

MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

This class action lawsuit charges, among other things, that the State of Alabama's teacher certification tests impermissibly discriminate against black persons seeking teacher certification. The plaintiffs and plaintiff-intervenors are four black teachers and a predominantly black state university. The plaintiff class, as certified by the court to be represented by three of the plaintiff black teachers, consists of all black persons who have been or will be denied any level teacher certification because they failed to pass the tests. The defendants are the Board of Education for the State of Alabama, the members of the board, and the State Superintendent of Education.

In a series of orders, this court found that the parties had entered into an enforceable settlement and the court approved the settlement for the plaintiff class. This lawsuit is again before the court on the defendants' November 4, 1985, motion for rehearing, seeking to have the court reconsider its finding that the parties entered into a binding settlement. For reasons that follow, the court has concluded that the motion should be granted and the earlier orders enforcing and approving the settlement vacated.

I.

The settlement provides for significant class-wide injunctive relief. It provides for a new certification process that allows the use of scores on newly developed subject area examinations as well as the candidates' grade point averages in their education programs. Under the proposed procedure, if candidates do not make the required cut-score on the tests, their grade point averages will be counted 50% and their test scores counted 50% to determine certification.

The new subject area examinations will be developed in accordance with several underlying provisions. First, the tests must meet applicable professional guidelines. Second, the development, administration, and continued review of the tests will be monitored by a three-person expert panel, whose members will be appointed by the court after nomination by the parties. Third, the test items will be subject to limits in permissible differences in result on the basis of race. Under the formula proposed, the tests would first use only items on which there was less than a 5% difference in performance by race. Where these items are not available, items on which there is a 10% or less difference in performance by race would be used. After the test is administered a number of times, items which were not thought to have a race difference of greater than 10% but did in practice have a difference of greater than 10% and less than 15% may be used so long as not more than 10% of the items fall into that category. Items which have a race difference of greater than 15% will not be used.

Defendants may continue to use the existing subject area examinations only until the new tests are developed and implemented, subject to the following strict controls: the cut-scores will be lowered 12 points; all class members who do not meet the lowered cut-scores will have their grade point averages counted 50% and the test counted 50% to determine certification; and finally, if the former two adjustments do not result in a black pass rate equal to 90% of the white pass rate, an additional number of the most highly qualified class members will be certified to make those pass rates come within 10%.

Further, use of a "basic professional studies" examination will be halted. Any candidates seeking advance certification in the same area as their basic certification will not be required to pass any examination.

In addition to these class-wide provisions, the settlement offers individual injunctive and monetary relief. The state board immediately will issue certifications to four categories of class members: (a) those who were denied certification on the basis of the previously administered basic professional studies examination; (b) class members who were denied a higher level of certification in the same field for which they held a basic certification; (c) class members who scored within 12 points of the cut-score on the prior examinations; and (d) class members who would have scored within 12 points of the cut-scores on the prior examinations if their grade point averages and test results had each been counted 50%.

Additionally, the settlement requires the state to pay $500,000 in liquidated compensatory damages to class members who were denied certification solely on the basis of the basic professional studies examination, who were denied higher certification in the same field for which they hold a basic certification, or who scored within 12 points of the cut-score or would have made such a score had their grade point averages been counted. The four individual named plaintiffs will be awarded $5,000 each, and then each class member, including the individual named plaintiffs, will take an equal, pro rata share of the remainder of the $500,000 fund.

II.

The defendants continue to question whether the board members present at an April 4, 1985, meeting in Birmingham, Alabama agreed to the settlement. The court remains convinced that the members did. As the court observed in its July 3, 1985, memorandum opinion,

Beginning in June 1984, attorneys for the parties met several times to discuss settlement of this lawsuit. Also present at some of these meetings were some of the parties' experts and some of the defendants themselves, including the state superintendent and a member of the state school board. In December 1984, the lawyers for the parties concluded that they were unable to reach a settlement and so notified the court. The court then set a trial date of April 22, 1985.

In early 1985, settlement discussions resumed. During these renewed negotiations, Donald Watkins, the attorney for the plaintiffs, Gregory Stein, the attorney for the plaintiff-intervenors, and Charles Coody, the attorney for the defendants, exchanged eight to ten proposed settlement agreements in the form of consent decrees. Finally, on April 3, after working late into the night the previous day, Coody and Watkins drafted a consent decree that they believed would be acceptable to all parties.

The state board had previously passed a resolution authorizing the state superintendent to settle all litigation involving the board, with one exception not applicable to the circumstances here. Although superintendent Teague believed the final draft reached by Coody and Watkins was acceptable, he considered the settlement too important to accept without the approval of the board. Teague and Coody therefore called a meeting of the board to discuss the proposed consent decree and to secure approval from the board. Five of the eight board members met on April 4. A sixth board member attended briefly but left before the meeting ended. At this meeting, Teague and Coody informed the board members, in substance, that counsel for the parties had drafted a consent decree and that they, Teague and Coody, wanted the board's approval of the decree. Teague and Coody handed out copies of the decree to the board members, explained its major provisions, and answered questions. During the meeting, Teague and some board members expressed displeasure with various specific provisions in the decree; however, none of the board members voiced objections to settlement according to the terms in the decree. At the end of the meeting, Harold Martin, the presiding officer, told Teague to "go ahead" with the settlement. There was no objection from the other members of the board. The evidence reflects that Teague, Coody and the five board members present at the meeting left the meeting with the understanding that they had approved the settlement as embodied in the decree. They further understood that Coody would immediately inform plaintiffs' and plaintiff-intervenors' counsel and the court that the decree was acceptable to the board and the superintendent and that the lawsuit was settled. Later the same day, Coody so informed Watkins and asked Watkins to inform Stein. Watkins did. On April 8, Coody and Watkins met with the court in-chambers. They presented the court with a copy of the decree they had drafted, and they informed the court that the case had been settled by all parties according to the terms in the decree. Stein could not be present for the meeting and had authorized Watkins to speak for the plaintiff-intervenors. The court informed Coody and Watkins that the settlement was acceptable, subject to the court's approving the decree for the plaintiff class pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. The court also informed Coody and Watkins that a Rule 23(e) hearing would be set for June 28, 1985. The court continued the April 22 trial date. A few days later, the Attorney General for the State of Alabama publicly attacked the settlement. Then, on April 11, 1985, in response to public criticism of the settlement, the board voted five to three to inform the court that the lawsuit

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