Brown v. BOARD OF SCH. COM'RS OF MOBILE CTY., ALA., Civ. A. No. 75-298-P.

Decision Date15 April 1982
Docket NumberCiv. A. No. 75-298-P.
Citation542 F. Supp. 1078
PartiesLeila G. BROWN, et al., Plaintiffs, United States of America, Plaintiff-Intervenor, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, ALABAMA, et al., Defendants.
CourtU.S. District Court — Southern District of Alabama


James U. Blacksher, Blacksher, Menefee & Stein, Mobile, Ala., for plaintiffs.

J. Gerald Hebert, Ellen M. Weber, Attys., Voting Section, Civ. Rights Section, U. S. Dept. of Justice, Washington, D. C., for plaintiff-intervenor United States of America.

James C. Wood, Simon & Wood, Mobile, Ala., for Mobile County.

Robert C. Campbell, III, Daniel A. Pike, Frank G. Taylor, Sintz, Pike, Campbell & Duke, Mobile, Ala., for Board of School Comrs.


PITTMAN, Senior District Judge.

This cause was retried by this court upon remand from the United States Supreme Court and the Court of Appeals for the Fifth Circuit.

The plaintiffs are representatives of a class composed of all black citizens of Mobile County, Alabama.1 They claim that the present statutory system of at-large elections of the five commissioners of the Board of School Commissioners of Mobile County dilutes the voting strength of black citizens in violation of rights guaranteed them by the first, thirteenth, fourteenth and fifteenth amendments to the United States Constitution. The plaintiffs seek declaratory and injunctive relief pursuant to the Voting Rights Act of 1965 and the Amendments of 1970, 42 U.S.C. §§ 1973 and 1973a, and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343(3) & (4), and 42 U.S.C. § 1973j(f).2

The United States of America was allowed to intervene as a party plaintiff by this court's order of December 24, 1980. The United States was not a party to the action when it was originally tried in September of 1976. Jurisdiction is predicated upon 28 U.S.C. § 1345 and 42 U.S.C. § 1973j(f).

The defendants are the Board of School Commissioners of Mobile County and each of the commissioners of the school board,3 along with the election supervisors and election canvassing board for Mobile County: Probate Judge John L. Moore, Circuit Court Clerk Maurice W. Castle, Jr., and Sheriff Thomas J. Purvis.

The plaintiffs' first cause of action alleges that the at-large election system for school board commissioners violates Sections 2 and 3 of the Voting Rights Act of 1965, as amended. The second cause of action alleges that the electoral system violates the fifteenth amendment to the Constitution, and the third cause of action rests on the fourteenth amendment. The fourth cause of action is based on the State of Alabama's failure to remedy "the continuing effects of its prior official policies and practices of excluding blacks from the electoral process."4

The plaintiffs brought suit in this court on June 9, 1975, and this court entered judgment for them on December 9, 1976. Brown v. Moore, 428 F.Supp. 1123 (S.D.Ala. 1976). The Fifth Circuit summarily affirmed. On April 22, 1980, the Supreme Court vacated the judgment of the court of appeals and remanded the case "to that court for further proceedings in light of the decision ... in City of Mobile v. Bolden, 446 U.S. 55 100 S.Ct. 1490, 64 L.Ed.2d 47 ...." Williams v. Brown, 446 U.S. 236, 100 S.Ct. 1519, 64 L.Ed.2d 181 (1980).

On remand, hearings were held in this court to resolve the question of whether impending elections should be held under a district or an at-large system. This court entered an injunctive order requiring district elections pending a final trial on remand.5 The defendants appealed the court's order and unsuccessfully sought a stay in this court, in the court of appeals, and in the Supreme Court. See Moore v. Brown, 448 U.S. 1335, 101 S.Ct. 16, 65 L.Ed.2d 1158 (1980). On October 30, 1980, four days before the November general election, for the next single-member district commissioner according to this court's order, the court of appeals ordered that Board President Alexander would continue in office as the non-voting president until a final judgment on remand. The court of appeals further ordered in its unpublished opinion, No. 80-7610, that this court enjoin the certification of the election results of the November general election for the single-member district commissioner. The court stated it wanted the school board to continue operation as it was prior to this court's order of July 25, 1980.

On remand, this court denied a motion summarily to dismiss the complaint and gave the parties the opportunity to present such additional evidence as was relevant to the issues to be resolved on remand. See Jones v. City of Lubbock, 640 F.2d 777, 777-78 (5th Cir. Unit A 1981) (Goldberg, J., specially concurring).

Evidentiary hearings were conducted from April 13 to April 22, 1981. At the conclusion of the hearings, the court permitted the parties, including the United States, to submit post-hearing proposed findings of fact and conclusions of law. The decision rendered herein is based on the evidence adduced at the original trial, the subsequent hearings concerning this court's order, and the remand hearings.

The Supreme Court's decision is found in six separate opinions which must be pieced together to determine the Court's directions on remand. This court and the court of appeals found primary guidance in their initial consideration of this case in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), affirmed sub nom., East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). These cases established the areas of inquiry for a district court presented with a voter dilution case. Both of those cases predated Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), a case involving an equal protection challenge to employment standards in which the Supreme Court held that proof of discriminatory intent was essential to success on an equal protection claim.

The judgment of the Supreme Court in the companion case City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (reserving and remanding and sending this case back with Bolden) was announced by Justice Stewart in an opinion joined by the Chief Justice and Justices Powell and Rehnquist. Those justices concluded first that in view of this court's finding that the plaintiff class registered and voted without hindrance, there was not a fifteenth amendment violation.

The defendants concede in their brief that a majority of the justices agreed that a voter dilution claim was cognizable under either the fourteenth or fifteenth amendment.

The plurality next concluded that Section 2 of the Voting Rights Act (as it stood prior to the 1975 amendments) simply paralleled the fifteenth amendment and that the substantive elements are the same as those in a direct fifteenth amendment case. The 1975 amendments adding fourteenth amendment protections in section 2 were not addressed.

The plurality addressed at some length the elements of the fourteenth amendment dilution claim in light of Washington v. Davis, concluding that a finding that the challenged practice was adopted or maintained for a discriminatory purpose (intent) (at least in part, see discussion infra) is necessary for a finding of a constitutional violation.

Finally, the plurality concluded that this court and the court of appeals erred in deciding the case on the basis of Zimmer standards, since that case "was quite evidently decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the equal protection clause." City of Mobile v. Bolden, 446 U.S. at 71, 100 S.Ct. at 1502. The plurality then applied what it viewed as the correct post-Washington v. Davis standards to the fact findings of this court and concluded that those factors fall short of a discriminatory purpose in the adoption of the at-large voting system.

Justice White dissented, arguing that White v. Regester remains viable as a method to make findings supporting an inference of discriminatory purpose and that the facts found by this court amply supported such an inference. This position was adopted by Justice Brennan and, apparently, Justice Blackmun, who would have affirmed the liability determination but reversed the court's remedy choice.

Justice Marshall dissented in a lengthy opinion which, at a minimum, agreed that discriminatory purpose could be inferred from the facts found.

Justice Stevens concurred in an opinion which supports a minimal evaluation basis analysis of dilution claims.

Five justices agreed, therefore, that this court and the court of appeals applied the wrong legal standard, although no majority agreed on the details of the correct standard.

It appears that six justices agree that discriminatory purpose (intent) is a necessary part of plaintiffs' case. One of the six and the other three justices apparently held such purpose had been shown.6

The plurality would require that the proof of intent must be substantially more direct. See the analysis of Bolden in, e.g., Lodge v. Buxton, 639 F.2d 1358, 1369-75 (5th Cir. 1981); McMillan v. Escambia County, 638 F.2d 1239, 1242-43 (5th Cir. 1981). This court has viewed its obligation on remand as proper to take additional evidence and evaluate that evidence and the record and make such additional findings as necessary to decide the issue of discriminatory purpose (intent) under the proper standard. See McMillan v. Escambia County, 638 F.2d at 1243-44.


The court readopts its findings regarding the operative facts and the issue of unresponsiveness, see Lodge, 639 F.2d at 1375, previously entered after the first trial. None of these findings was questioned or disapproved by the court of appeals or any opinion of the Supreme Court. The...

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