Stout v. Jefferson Cnty. Bd. of Educ.

• Decision Date: 13 February 2018
• Docket Number: No. 17-12338,17-12338
• Citation: 882 F.3d 988
• Parties: 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, United States of America, et al., Intervenor Plaintiffs, v. JEFFERSON COUNTY BOARD OF EDUCATION, Defendant-Appellee, Gardendale City Board of Education, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

882 F.3d 988

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,United States of America, et al., Intervenor Plaintiffs,

v. JEFFERSON COUNTY BOARD OF EDUCATION, Defendant-Appellee,Gardendale City Board of Education, Defendant-Appellee/Cross-Appellant.

No. 17-12338

United States Court of Appeals, Eleventh Circuit.

February 13, 2018

U. W. Clemon, U.W. Clemon, LLC, Birmingham, AL, Christopher Eberhart Kemmitt, NAACP Legal Defense and Educational Fund, Inc., Washington, DC, Monique Lin-Luse, Samuel Spital, Deuel Ross, NAACP Legal Defense & Educational Fund, Inc., New York, NY, for Plaintiffs-Appellants-Cross Appellees.

Whit Colvin, Carl Johnson, Andrew Ethan Rudloff, Bishop Colvin Johnson & Kent, LLC, Birmingham, AL, for Defendant–Appellee.

Aaron Gavin McLeod, Stephen Ashford Rowe, Giles G. Perkins, Russell Rutherford, Adams & Reese, LLP, Donald B. Sweeney, Jr., Alan K. Zeigler, Bradley Arant Boult Cummings, LLP, Birmingham, AL, for Defendant–Appellee–Cross Appellant.

Kimberly Stewart Hermann, Southeastern Legal Foundation, Inc., for Amici Curiae Southeastern Legal Foundation, Inc., Center for Equal Opportunity.

Before WILLIAM PRYOR, JILL PRYOR, and CLEVENGER,^* Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

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, 74 S.Ct. 686, 98 L.Ed. 873 (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, 91 S.Ct. 1267, 28 L.Ed.2d 554 (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, 90 S.Ct. 29, 24 L.Ed.2d 19 (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, 92 S.Ct. 2196, 33 L.Ed.2d 51 (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, 92 S.Ct. 2196. 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...