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TUCK; JACQUES TURNER, A/K/A WILLIAM TUCK, JR., A/K/A VERONICA TUCK; WENDELL WARE, A/K/A JOHN W. WARE; MONTINA WILLIAMS, A/K/A ANGIE WILLIAMS, RICHARD WILLIAMS, A/K/A ANGIE WILLIAMS, PLAINTIFFS-APPELLANTS, TORRANCE BECK, A/K/A ALBERT BECK, JR., PLAINTIFF, v. TALLADEGA COUNTY BOARD OF EDUCATION; LANCE GRISSETT; DAN LIMBAUGH; WATSON; GAY LANGLEY; JOSEPH POMEROY; LARRY MORRIS; BEULAH GARRETT; TALLADEGA CITY BOARD OF EDUCATION, DEFENDANTS-APPELLEES.
No. 92-6033.United States Court of Appeals, Eleventh Circuit.
August 13, 1993. As Amended August 31, 1993.
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Cleophus Thomas, Jr., Anniston, AL, Janell M. Byrd, Washington, DC, Julius L. Chambers, Norman J. Chachkin, New York City, for plaintiffs-appellants.
George C. Douglas, Jr., Gaines, Gaines, Gaines, Talladega, AL, O. Stanley Thornton, Wooten, Thornton, Carpenter, O’Brien
Lazenby, Talladega, AL, for defendants-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before KRAVITCH and ANDERSON, Circuit Judges, and HILL, Senior Circuit Judge.
ANDERSON, Circuit Judge:
[1] Plaintiffs-appellants, who represent a class of black children and their parents residing in Talladega County, Alabama, brought this suit against the Talladega County Board of Education, its individual members, and the Talladega County School Superintendent (collectively referred to as “the Board”).[1][2] I. FACTS
[3] The Talladega County Board of Education has had a long history of involvement in
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school desegregation litigation. In 1963, black parents residing in Alabama filed Lee v. Macon County Board of Education on behalf of black school children, in an effort to desegregate Alabama’s public schools. In 1967, a three-judge district court held that an unconstitutional, segregated school system was being maintained throughout the state. The court ordered state-wide desegregation and directed each school system within the state to adopt a desegregation plan consistent with standards laid out in the court’s order.[2] Talladega County submitted a school desegregation plan to the district court and the plan was approved, as supplemented and modified, on February 3, 1970.[3]
[4] For over a decade, the Talladega County public schools operated under federal court supervision. On November 7, 1983, however, the Talladega County Board of Education filed a motion requesting that the district court relinquish jurisdiction over the Talladega County schools. See Lee v. Talladega County Board of Education, 963 F.2d 1426, 1428 (11th Cir. 1992), cert. denied,Page 1402
majority of Hannah Mallory students were assigned to the Training School, and portable classrooms were needed at the Training School to accommodate the incoming students. The portion of the old Hannah Mallory attendance zone that became a new Training School K-6 zone was not contiguous with the rest of the Training School’s K-6 zone, although it was contiguous with an existing Training School 7-12 zone.
[8] Two years after the closing of Hannah Mallory, in June 1987, the Board approved the purchase of a site immediately adjacent to the Idalia school for the construction of a new, 500-pupil consolidated elementary school, to be named the Stemley Bridge Road School.[6] According to the Board’s plan, grades K-6 at the Training School would be discontinued and the Jonesview school would be closed. Then, areas previously assigned for grades K-6 to the Training School, Jonesview, and Idalia, would be assigned to the new consolidated school. While the Board decided to close grades K-6 at the Training School, it did not plan to close the other Training School grades. Rather, it intended to renovate the Training School for continued use as a grades 7-12 facility. By the time of trial, the Board had stated that it would spend $500,000 on the Training School renovations. Students residing in the former Jonesview K-6 and Training School K-6 zones were to attend the renovated Training School for grades 7-12. As of the time of trial, the Board had not finally decided where it would assign Stemley Bridge Road School graduates who resided in the former Idalia zone. It had decided, however, that many of them would not attend the Training School for junior high and high school, but instead would attend Drew Middle School for grades 7-8 and Lincoln High School for grades 9-12. [9] The closing of Hannah Mallory and the carrying out of the Stemley Bridge Road School construction plans took place in the context of a somewhat unstable student population. The white student population was particularly unstable. In recent years adjacent school districts had made several attempts to annex portions of the Talladega County school district that contained large proportions of white students. In 1982 or 1983 the Oxford City school system had attempted to annex a part of the Talladega County school district, an action that would have removed a large number of white students from a majority-white attendance zone. In 1984, the city of Sylacauga had sought to annex portions of the Talladega County school district that contained a large proportion of white students, and in 1986 the city made a similar attempt. [10] While all three annexation attempts failed, and thus did not actually result in the loss of white students from the County school system, the County system was losing white students through another route: a number of white students, although still residing in the County, were arranging to attend school in neighboring school systems.[7] Most often the white students crossing school system lines resided in majority-black attendance zones such as the Training School’s. The district court found, and neither party disputes, that “significant numbers of white students who reside within the Talladega County Training School zone attend public schools in the Talladega City School system.” R2-93-10. Plaintiffs produced evidence at trial, and no one disputes, that an average of 68 white students per year attended Jonesview from 1984-85 through 1988-89, while during those years the Training School, to which Jonesview students are assigned for grades 7-12, had an average of only 17 white students per year in grades 7-12. [11] The Board took active steps to prevent the annexation attempts. In response to the Oxford City annexation attempt, the Board filed a motion in the Lee v. Macon County litigation in an effort to stop the annexation. In response to the first Sylacauga annexationPage 1403
attempt, the Board sought the assistance of the Justice Department to stop the annexation, and in response to the second attempt the Board passed a resolution authorizing the Superintendent and the Board’s attorney to take all appropriate steps to prevent the annexation. The Superintendent met with the Sylacauga mayor, City Attorney, and City Clerk, and contacted the County’s legislative delegation regarding the renewed annexation attempt. Although every student leaving the Talladega County school system, whether by annexation or by interdistrict transfer, cost the school district state and local funds of approximately $3000 per student per school year, the Board did not make a comparable effort to stop the loss of white students through zone-jumping.[8]
[12] As the Board was carrying out its school restructuring plans, a group of black parents became concerned about the changes. While the Board did not divulge the specifics of its plans to the general public, these parents had learned from the newspaper that property had been purchased at the Idalia site for the purpose of building a school. The parents also saw in the newspaper a list of bids for the renovation of several schools which did not include the Training School. The parents were troubled because they perceived that the Board was neglecting the Training School and they feared that the Board planned to close the Training School entirely. [13] In early 1988, the black parents made several written attempts to inform the School Superintendent and the Board of their desire to present their concerns at a Board meeting. Superintendent Grissett responded to one letter, and Dr. Morris, the Board president, responded to another, but at least one of the letters was not answered by either the Superintendent or any Board member. Dr. Morris’s letter did not disclose the Board’s plan to close grades K-6 of the Training School, although the parents’ letter had expressed concern that the Training School would be closed, and the plan to close grades K-6 had already been made at the time Dr. Morris wrote his response. [14] Over the course of the year, the parents made a number of unsuccessful attempts to obtain information regarding the Board’s school restructuring plans. The group attempted to obtain from the Board a copy of its desegregation plan and subsequent compliance and status reports, but no one responded to their written request. The group wrote to the principals of Idalia, Jonesview, and the Training School requesting student and faculty assignment data, but none of the requested information was provided. In a letter dated May 18, 1988, counsel for the parents contacted the Board’s attorney and requested information regarding new construction and school closing plans with respect to the Training School, Jonesview, and Idalia. In his written response of June 23, 1988, the Board’s attorney did not inform the parents of the Board’s plan, already approved by the state, to close grades K-6 at the Training School. The Board’s attorney also stated that the Board had no plans to change the use of the Jonesview School, although the Board at that time had already planned to close the school. Finally, two parents attempted to obtain copies of minutes of the Board’s meetings. On May 12, 1988, the Board had passed a resolution prohibiting the recording of its proceedings in any manner by anyone other than the officialPage 1404
Board secretary.[9] Subsequently, on June 28, 1988, and again on August 12, 1988, Barbara English and Augustus Elston went to the Board of Education office and requested copies of the official Board minutes. They were not allowed to make copies on either occasion.
[15] II. PROCEDURAL HISTORY
[16] On December 5, 1988, plaintiffs, representing a class of black children and their parents residing in Talladega County, Alabama, brought suit against the Talladega County Board of Education, its individual members, and the Talladega County School Superintendent, claiming that defendants’ recent actions violated the Fourteenth Amendment equal protection clause, Title VI of the Civil Rights Act of 1964, the United States Department of Education regulations promulgated pursuant to Title VI, the First Amendment, and Alabama Code § 36-12-40 (“the Alabama Open Records Act”), and that certain of defendants’ actions constituted a breach of contract. See R1-1. On the same day, plaintiffs moved for a preliminary injunction to prohibit the Board from beginning construction of the Stemley Bridge Road School on the property adjacent to the Idalia site. See R1-6. On December 12, 1988, defendants moved to dismiss the complaint, and to deny the plaintiffs’ motion for a preliminary injunction. See R1-7, 10. On December 29, 1988, the district court dismissed the First Amendment claim, the Alabama Open Records Act claim, and the breach of contract claim. See R1-13. The district court also denied plaintiffs’ motion for a preliminary injunction, and ruled that evidence of events occurring before March 13, 1985, the date of the order declaring that the Talladega County school system had attained unitary status, would not be considered.[10] See id.
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[20] On remand, the district court admitted plaintiffs’ two additional attorneys and added the Talladega City Board of Education as a party defendant. See R2-111. The district court limited the consideration of additional evidence to that which the plaintiffs could prove only because of the presence of the City Board in the lawsuit or only because of the assistance of the two additional NAACP Legal Defense Fund attorneys. See[22] III. STANDARDS OF REVIEW
[23] We review the district court’s findings of fact for clear error. Fed.R.Civ.P. 52(a); Newell v. Prudential Ins. Co. of America, 904 F.2d 644, 649 (11th Cir. 1990) (citations omitted). A finding is clearly erroneous when “`although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). We review the district court’s legal conclusions de novo. Newell, 904 F.2d at 649 (citations omitted). More specifically, we review the district court’s findings as to whether the Board engaged in intentional discrimination for clear error, see Pullman-Standard v. Swint, 456 U.S. 273, 286, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982), and we review the district court’s fact finds relevant to the Title VI regulations disparate impact inquiry for clear error. However, we review de novo the legal significance attributed to these findings by the district court. We also review de novo the dismissals of the breach of contract claim and the First Amendment claim for failure to state a claim.
[25] IV. DISCUSSION[26] A. FOURTEENTH AMENDMENT AND TITLE VI CLAIMS
[27] On appeal, plaintiffs argue that the district court erred in determining that not one of four challenged Board actions violated either the Fourteenth Amendment equal protection clause or the Title VI implementing regulations.[11] First, they challenge as error
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the district court’s failure to deem discriminatory the closing of Training School grades K-6 and the siting of the Stemley Bridge Road School adjacent to Idalia instead of at the Training School. Second, they claim that the district court should have deemed discriminatory the Board’s failure to channel all Stemley Bridge Road School graduates to the Training School for grades 7-12. Third, they contend that the district court should have declared discriminatory defendants’ failure to prevent white school children residing in the Training School 7-12 zone from transferring out of the Talladega County school system and into the Talladega City system. Finally, they challenge as error the district court’s failure to declare discriminatory the Board’s assigning the majority of the Hannah Mallory children to the Training School via a non-contiguous attendance zone.
[28] 1. Legal StandardsPage 1407
of those Department of Education Title VI regulations that incorporate a disparate impact standard, and thus we assum arguendo that it was proper to apply the disparate impact analysis in this case.[12]
[31] To establish liability under the Title VI regulations disparate impact scheme, a plaintiff must first demonstrate by a preponderance of the evidence that a facially neutral practice has a disproportionate adverse effect on a group protected by Title VI.[13] Georgia State Conference, 775 F.2d at 1417. If the plaintiff makes such a prima facie showing, the defendant then must prove that there exists a substantial legitimate justification for the challenged practice in order to avoid liability. Id.[14] If the defendant carries this rebuttal burden, the plaintiff will still prevail if able to show that there exists a comparably effective alternative practice which would result in less disproportionality, or that the defendant’s proffered justification is a pretext for discrimination. Id. [32] The plaintiff’s duty to show that a practice has a disproportionate effect by definition requires the plaintiff to demonstrate a causal link between the defendant’s challenged practice and the disparate impact identified. Thus, the plaintiff cannot make out a prima facie disparate impact claim if the evidence tends to show that even had the defendant not engaged in the challenged practice, the same disparate impact would nonetheless have existed. Cf. United States v. Lowndes County Board of Education, 878 F.2d 1301, 1305 (11th Cir. 1989) (“racial imbalance in the public schools amounts to a constitutional violation only if it results from some form of state action and not from factors, such as residential housing patterns, which are beyond the control of state officials.”); Freeman v. Pitts,Page 1408
[33] 2. Evaluation of District Court’s Application of Fourteenth Amendment Equal Protection Clause and Title VI Regulations Standards to Challenged Board Actions[37] i. Challenge Under Equal Protection Clause
[38] Plaintiffs argue that the district court clearly erred in determining that the Board’s decision to locate the new consolidated elementary school adjacent to Idalia did not violate the equal protection clause, because according to plaintiffs the Board’s decision to place the new school next to Idalia was motivated by discriminatory intent. They point to several factors which they claim demonstrate that discriminatory animus drove the Board’s siting decision.[15] First, they claim that placing the new school next to Idalia instead of at the Training School site rendered the Training School underutilized, and revealed the Board’s discriminatory purpose, since absent racial considerations one would not expect the Board knowingly to underutilize a school. Second, plaintiffs claim that the Board erected barriers to their participation in the school restructuring decisionmaking process, such as by failing to answer some of their letters, by refusing to provide them with certain requested information, and by providing them with some misleading information. This failure to involve plaintiffs in the decisionmaking process is further evidence that the school siting was motivated by discriminatory animus, they contend. Third, plaintiffs argue that expanding the Training School to accommodate the consolidated elementary school would have been cheaper than building a new school adjacent to Idalia. The Board’s choice of the costlier course of action could only be explained as a product of racial considerations, they claim. Finally, plaintiffs argue that Talladega County has a history of closing or downgrading historically black schools, and that this history bolsters their claim that racial concerns drove the Board’s siting decision.
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intent. The district court found that adequate land for expansion was not readily available at the Training School site, that the Board needed all the existing space at the Training School to upgrade the school for grades 7-12, and that the Board did not wish to locate the new elementary school at the site of a middle school or high school. See R2-93-17-18. The latter two findings are supported by the record and are not clearly erroneous. See
R4-310-11 (Testimony of Talladega County School Superintendent Lance Grissett regarding use of elementary space at Training School for grades 7-12 renovations);[16] R4-318, 337 (Testimony of Superintendent Grissett regarding Board’s reluctance to mix grades K-6 and grades 7-12 children). As for the first finding, there was some evidence that members of the Dumas family and members of the Lawson family, who owned land adjacent to the Training School, may have been willing to negotiate the sale of some land. On the other hand, there was also evidence that the Lawson family was generally reluctant to sell their land, and that they may not have been willing to sell the amount of land required for the new school. See R3-194, 196-98, 200-201, 203 (Testimony of Lawson family representative Fred Lawson). Furthermore, it is not clear from the evidence that the Board could readily have acquired from the Dumas family the required amount of land. See R4-477-78 (Testimony of Dumas family representative Lawrence Dumas, Jr.). Thus, we cannot say that the district court clearly erred in finding that adequate land for expansion was not readily available at the Training School site.[17] Given that adequate land for expansion was not readily available, that the Board needed all the existing space at the Training School for the grades 7-12 renovations, and that the Board did not wish to place grades K-6 and grades 7-12 children together, it is just as plausible that the Board’s failure to place the new school at the Training School site was the product of these three considerations as that the Board’s decision was the product of racial animus.[18] Therefore, we cannot conclude that the district court clearly erred in finding that the Board’s siting decision was based on these logistical and educational considerations rather than on any discriminatory considerations. See R2-93-15.
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finding is clearly erroneous. Moreover, the district court found that defendants planned significant renovations at the Training School, including the addition of computer labs, science labs, and greatly expanded home economics and industrial arts facilities. See id. In this context, the district court could reasonably have concluded that plaintiffs’ evidence of a high square foot/student ratio reflected not a discriminatory desire to segregate black students, but rather a desire to reserve adequate space for the installation of up-to-date facilities. Thus, we cannot conclude that the district court clearly erred in failing to find that plaintiffs’ underutilization evidence demonstrated that the Board’s siting decision was motivated by discriminatory intent.
[41] As for plaintiffs’ claim that the Board erected barriers to their participation in the process of school restructuring, we agree with the district court’s finding that there was no evidence that the Board sought opinions from parents of students who would be affected by the consolidation of Jonesview, Idalia, and grades K-6 of the Training School. See R2-93-8. We also agree with the district court’s finding that the Board had delayed in providing the public generally with information regarding developments under consideration. See R2-93-19. The district court also properly recognized that through its attorney’s June 23, 1988 letter, the Board provided the black parents’ group with misleading information regarding its plans See R2-93-10. [42] However, the district court ultimately found no evidence that the Board’s failure to be forthcoming with information regarding its plans was motivated by racially discriminatory animus; rather, the district court found that the Board was reluctant to share information with black parents and white parents alike See R2-93-8, 19. The district court did not clearly err in making this finding. Of course, common sense indicates that ordinarily, public servants will readily receive and even solicit input from their constituents; the failure to do so may in some instances give rise to reasonable inferences of ulterior motive. Likewise, school board consultations with black parents may be evidence of a lack of discriminatory intent. See, e.g., Lee v. Anniston City School System, 737 F.2d 952, 957 (11th Cir. 1984). However, we cannot conclude on this record that the district court clearly erred in finding that the Board’s treatment of plaintiffs was not motivated by racially discriminatory animus. Thus, the district court did not clearly err in rejecting the evidence as demonstrating intent to discriminate in siting the new school. [43] With respect to plaintiffs’ cost argument, the district court found that the expense of constructing new elementary facilities for about 550 Idalia, Jonesview, and Training School elementary students would have been approximately the same whether the school was located next to Idalia or at the Training School site See R2-93-4. In so finding, it appears that the district court implicitly rejected plaintiffs’ contention that the Board could have relied in part on existing space at the Training School to accommodate the 550 students, and implicitly found instead that placing the new school at the Training School site would have required constructing entirely new elementary facilities, as was necessary at the Idalia site. Thus, it appears that the district court implicitly rejected plaintiffs’ argument that by placing the new school at the Training School site instead of at the Idalia site the Board could have saved money by not having to build entirely new elementary facilities. We cannot conclude that these findings are clearly erroneous. As already discussed, the Board needed to use the existing elementary space at the Training School for the grades 7-12 renovations; thus, that space could not have been used for the new consolidated elementary school. In this context, it was not clearly erroneous for the district court to find that the Board would have had to pay the cost of constructing entirely new facilities even if the new school had been placed at the Training School site.[19]Page 1411
[44] Plaintiffs appear to argue that, even if the Board needed all the existing space at the Training School for the grades 7-12 renovations, placing the new school at the Training School site would still have been substantially cheaper than placing it at the Idalia site, for two reasons. First, they claim, if the new grades K-6 school had been placed at the Training School site, the elementary children could have shared certain facilities with the grades 7-12 children, so that the Board could have saved money by not having had to construct those facilities in duplicate for the grades K-6 children. Second, they claim, even if entirely new facilities would have had to be built for the grades K-6 children, the Board could have saved money by arranging for the grades K-6 and grades 7-12 schools to share certain services and personnel. The district court did not explicitly address these arguments. However, in our view, it was not clear from the testimony of plaintiffs’ expert that these measures could have been taken or that significant savings could have been obtained in this way. See, e.g., R4-438-41 (Testimony of plaintiffs’ expert Thomas Richard Mason). Furthermore, even if building the new school at the Training School site would have been somewhat cheaper than placing it at the Idalia site, due to the greater potential for consolidating facilities, services, and personnel at the Training School site, the Board’s inability readily to acquire at the Training School site the amount of land needed for expansion made it infeasible for the Board to place the new school at the Training School site. In the context of all the evidence, we cannot conclude that the district court clearly erred in rejecting plaintiffs’ cost evidence as demonstrating that the siting decision was motivated by discriminatory intent. [45] Finally, the district court did not discuss plaintiffs’ evidence regarding the Board’s history of closing or downgrading historically black schools. We assume that the district court did consider the evidence, and that its silence indicates its rejection of the evidence as demonstrating discriminatory animus.[20] While such evidence could potentially be probative of discriminatory intent, we do not believe that the district court clearly erred in rejecting the historical data as demonstrating discriminatory intent in this particular case. After careful consideration of the totality of the circumstances revealed by the record, we cannot conclude that the district court clearly erred in finding that no discriminatory intent motivated the Board’s siting decision. Since a plaintiff must demonstrate discriminatory intent to recover under the equal protection clause, see supra Part IV.A.1., and since these plaintiffs have not done so with respect to the Board’s siting decision, we affirm the district court’s judgment for defendants on the siting equal protection claim.[46] ii. Challenge Under Title VI Regulations
[47] Plaintiffs also argue that the district court erred in determining that the Board’s siting decision did not have a disparate impact on blacks and thus that plaintiffs had failed even to make a prima facie showing that the siting decision violated the Title VI regulations. See R2-93-15, 22; see supra Part IV.A.1. They contend that siting the new school next to Idalia, in a white community, had a disparate impact on blacks in at
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least three ways. First, it denied blacks the benefit of having the new school in their community while granting that benefit to whites. Second, it stigmatized black children by sending them a message that their community was not worthy of hosting a school that whites would attend. Finally, the Board’s siting choice left the Training School “small and at constant risk of closure, impairing its ability to offer a full curriculum to its students.” Plaintiffs’ Reply Brief on Appeal at 9.
[48] Each of the effects identified by plaintiffs might well constitute a disparate impact, and we assume arguendo that plaintiffs have demonstrated disparate impact. However, we need not decide this question because we conclude that the Board has demonstrated a substantial legitimate justification for its siting decision. Under the Title VI disparate impact scheme, once plaintiffs have demonstrated a disparate impact, defendants bear the burden of demonstrating that their challenged practice is supported by a “substantial legitimate justification.” Georgia State Conference, 775 F.2d at 1417. Most Title VI disparate impact cases in the educational context have involved challenges to the classification of students by ability through the use of standardized tests and other methods. See, e.g., Georgia State Conference of Branches of NAACP v. State of Georgia, 775 F.2d 1403Page 1413
“educational necessity” requirement and which applies in Title VI disparate impact cases generally: showing that the challenged decision was necessary to meeting a goal that was legitimate, important, and integral to the defendant’s institutional mission. Thus, in our view defendants can show a substantial legitimate justification for their siting decision if they can show that the decision was necessary to meeting a legitimate, important goal integral to their mission of administering educational institutions — i.e. that their decision was necessary to meeting an educational goal in a broader sense.
[50] We believe that defendants have met the requirement of showing that the challenged siting decision was necessary to meeting such a goal. Defendants claim that they could not place the new consolidated school at the Training School site because adequate land for expansion was not available adjacent to the Training School. Defendants adduced evidence in support of their claim that adequate land for expansion was not available at the Training School site, and the district court made a finding to that effect, a finding we have already deemed not clearly erroneous. Since adequate land on which to place the new consolidated elementary school facilities was not available at the Training School site, the Board is obviously correct that it was not feasible to place the new school at the Training School site, and that it was therefore necessary to place the new school elsewhere in order to achieve the goal of building the school. We think it clear that the goal of building the new consolidated school was legitimate, important, and integral to the Board’s educational mission. Thus, defendants have shown that because of the lack of adequate land for expansion at the Training School site, placing the new school somewhere besides at the Training School site was necessary to achieving a legitimate, important goal integral to the Board’s educational mission: the goal of building the school. Since defendants have demonstrated the necessity of their school siting decision, they have demonstrated a substantial legitimate justification for that decision.[21]Page 1414
Board to send all students graduating from the new school to the Training School for grades 7-12.[22] While the Board planned to continue sending all former Jonesview and Training School K-6 students to the Training School for grades 7-12, the Board did not agree to send all students living in the former Idalia zone to the Training School for junior high and high school. According to plaintiffs, the Board’s failure to send Idalia-zone students to the Training School not only had an unjustifiable disparate impact on black students in violation of the Title VI regulations, but also was the product of discriminatory animus in violation of the equal protection clause. The district court found that assigning all the Stemley Bridge Road students to the Training School for grades 7-12 “would add about 135 white students to the Training School which would significantly improve integration at the Training School.” R2-93-3. The district court also found, however, that the anticipated attendance zones for Stemley Bridge Road students for grades 7-12 were consistent with the operation of a unitary, racially nondiscriminatory public school system. R2-93-14. This conclusion implied a finding that plaintiffs had failed to prove that the Board’s attendance zone decision was motivated by discriminatory intent. It was obviously because of this finding that the district court decided in defendants’ favor on the attendance zone equal protection claim. See R2-93-21-22. Although the district court never specifically decided that plaintiffs had failed to prove disparate impact with respect to the attendance zone decision, it did conclude overall that “plaintiffs have failed to establish by a preponderance of the evidence that any of the challenged decisions and practices violated the regulations or otherwise had a disparate impact on blacks.” R2-93-22. This conclusion implicitly incorporated a determination that plaintiffs had failed to prove that the Board’s attendance zone decision had a disparate impact on blacks.
[54] i. Challenge Under Equal Protection Clause
[55] Plaintiffs argue that the district court clearly erred in failing to find that the Board’s choice of attendance zones was racially motivated. They cite two factors as evidence of the Board’s discriminatory intent. First, they point to Superintendent Grissett’s conflicting trial testimony regarding the attendance zones, and his alleged failure following trial to recommend the attendance zones he testified he would recommend. Second, they point to the underutilization of the Training School which they say would result from the Board’s chosen attendance zones.
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he would recommend that some Idalia-zone students attend the Training School after they finished the sixth grade. Plaintiffs apparently argue that the discrepancy between Superintendent Grissett’s ultimate recommendation and the diagram he drew at trial demonstrated discriminatory intent. The district court rejected plaintiffs’ request to supplement the record with post-trial evidence, including evidence of Superintendent Grissett’s post-trial attendance zone recommendation. See
R2-125; R2-127. As discussed below, this was not an abuse of discretion. See infra Part IV. D. 3. Even if we considered the evidence of Superintendent Grissett’s post-trial recommendation, we would not find that it proved discriminatory animus; in light of Superintendent Grissett’s testimony that feeder patterns to the Training School would probably remain the same, see R4-268, and that the Board had not finally decided what feeder patterns it intended to implement, see R3-207, it is not at all clear that his post-trial actions were inconsistent with his trial testimony.
[59] ii. Challenge Under Title VI Regulations
[60] Plaintiffs also contend that the district court erred in deciding that they had failed to prove that the Board’s choice of attendance zones had a disparate impact on black students, and thus that they had not even made a prima facie showing that the Board’s attendance zone decision violated the Title VI regulations. See R2-93-22; see supra Part IV. A. 1. Plaintiffs argue that the Board’s failure to send students from the former Idalia zone to the Training School for grades 7-12 produced a disparate impact on black students both because it increased the racial identifiability of the Training School and because it left the school underutilized and likely to be closed.
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determinations that many white children failed to attend the Training School and that the Board’s attendance zone decision had not produced a disparate impact on black students, it is clear that the district court meant, not that white students from Idalia would have attended the Training School if assigned there, but only that if they had attended, integration would have improved. In fact, the district court’s explicit determinations indicate that it implicitly found that plaintiffs did not and could not prove that white Idalia-zone students, if zoned for the Training School for grades 7-12, actually would have attended. In other words, we believe that the district court implicitly found that the Board’s failing to send the Idalia-zone children to the Training School had no significant effect on the school’s racial identifiability and level of utilization, because the district court did not believe plaintiffs had proven that white Idalia-zone students, if assigned to the Training School, would have attended that school rather than city schools or private schools. Thus, we believe that the district court rejected plaintiffs’ contention that the Board’s attendance zone decision produced a disparate impact because it found that plaintiffs had not demonstrated a causal link between any disparate impact and the Board’s attendance zone decision. We cannot conclude that the district court’s causation finding is clearly erroneous. Since a plaintiff must demonstrate a causal link between a challenged practice and the disparate impact identified to make a prima facie case under the Title VI regulations, see supra Part IV. A. 1., and since these plaintiffs have not demonstrated a causal link between the Board’s feeder patterns decision and any increased racial identifiability or underutilization at the Training School, the district court properly ruled in the defendants’ favor on plaintiffs’ Title VI regulations challenge to the Board’s choice of attendance zones.[24]
[62] c. The Board’s Failure to Stop “Zone-Jumping” By White Students[66] i. Challenge Under Equal Protection Clause
[67] According to plaintiffs, the Board’s failure to stop white students zoned for the Training
Page 1417
School from transferring into Talladega City schools has been motivated by discriminatory animus and thus has violated the equal protection clause. Plaintiffs contend that three factors reveal the Board’s discriminatory intent. First, they point to the Board’s November 22, 1983 resolution stating that the Board would operate the Talladega County school system at all times so as to conform with the district court’s orders in the Lee v. Macon County litigation. Part of the court-ordered desegregation plan in Lee v. Macon County provided that if the Board granted transfers to students living in its district for attendance at public schools outside the district, it had to do so on a non-discriminatory basis, and provided that the Board could not consent to transfers where the cumulative effect would reinforce the dual school system in either the transferor or the transferee system. Plaintiffs’ Trial Exhibit 49.[25] Plaintiffs contend that the Board has in fact consented to the transfers of white students zoned for the Training School into Talladega City schools, and that the Board’s action has had the effect of increasing the duality of the County system. The Board’s failure to follow through on its resolution to comply with the district-court-ordered transfer provision is “strong evidence of discriminatory intent,” plaintiffs claim. Plaintiffs’ Brief on Appeal at 48.
[68] Second, plaintiffs claim, while the Board has failed to respond to the transfer of white students from the majority-black Training School, it has actively sought to prevent the loss of white students from majority-white schools. According to plaintiffs, the Board “has done nothing to stop” white students zoned for the Training School from zone-jumping to Talladega City schools. Plaintiffs’ Reply Brief on Appeal at 19. In contrast, plaintiffs point out, on three occasions the Board took strong action against the loss of white students from majority-white schools: (1) the Board filed a motion in the Lee v. Macon County litigation in an effort to stop the early 1980’s Oxford City annexation attempt; (2) the Board sought the assistance of the Justice Department to stop the city of Sylacauga’s 1984 annexation attempt; and (3) in response to Sylacauga’s second annexation attempt in 1986, the Board passed a resolution authorizing the Superintendent and the Board’s attorney to take all appropriate action to prevent the annexation, and the Superintendent met with the Sylacauga Mayor, City Attorney, and City Clerk, and contacted the County’s legislative delegation regarding the annexation attempt. According to plaintiffs, this pattern of selective Board action has been governed by the Board’s discriminatory reluctance to make white students attend majority-black schools.[26] [69] Finally, plaintiffs contend, that the County school district has been losing approximately $3000 for each interdistrict transfer underscores the fact that discriminatory motives have governed the Board’s policy towards zone-jumping. Had the Board not wished to permit white students to “escape” the Training School, plaintiffs suggest, it would have taken more pains to retain school funds.Page 1418
[70] The district court found that significant numbers of white students residing in the Training School attendance zone attended public schools in the Talladega City school system, seePage 1419
an inference that the Board’s actions have been governed by a discriminatory desire to ensure that white students do not have to attend majority-black schools.
[75] We cannot conclude, however, that the district court clearly erred in failing to determine that this disparity demonstrated discriminatory intent. Several district court findings support the ultimate finding that the Board did not intend to discriminate against blacks in dealing with zone-jumping. First, the district court found that the Board does not condone zone-jumping, and that the Board clearly would like to halt it See R2-93-15, 20. We cannot deem these findings clearly erroneous, as they have some support in the record; for example, Superintendent Grissett testified that the County’s policy was not to allow interdistrict transfers. See R4-319-21. Second, the district court found that the Board had few, if any avenues to stop zone-jumping other than discouraging it by making improvements to the school system. See R2-93-20. As we explain in the next section, we cannot deem this finding clearly erroneous. See infra Part IV. A. 2. c. ii. Even if this were not true in fact, there is evidence that the Board did no believe there was much it could do to stop zone-jumping besides improving its system. Both the Talladega City and the Sylacauga City school superintendents testified that they knew of no way the Board could prevent a County student from attending either city’s school if either city would accept the student, see[77] ii. Challenge Under Title VI Regulations
[78] According to plaintiffs, the Board’s failure to prevent zone-jumping has not only violated the equal protection clause, but also has imposed an unjustifiable disparate impact on black students in violation of the Title VI regulations, by causing an increase in the racial identifiability of the Training School.
Page 1420
did not have a disparate impact on black students and therefore did not violate the Title VI regulations, for it stated that “plaintiffs have failed to establish by a preponderance of the evidence that any of the challenged decisions and practices violated the regulations or otherwise had a disparate impact on blacks.” R2-93-22. It seems that the district court drew this conclusion from two of its antecedent factual findings. First, it found that any zone-jumping did “not appear to have changed significantly over the years the racial composition of the students in the Talladega County system or the Talladega City system.” R2-93-20. Second, the district court found that the Board could not as a practical matter prevent the zone-jumping See R2-93-16 (“Talladega County school personnel are, as a practical matter, unable to prevent this [zone-jumping], since the enrollment and attendance of a public school student is verified and determined by the gaining school system (i.e., the city school system) and not by the losing school system (in this case, Talladega County).”); R2-93-20 (“the Talladega County Board has few, if any avenues available to it to stop this drain from its system other than to discourage it by improvements to its system, such as the improvements out of which this suit arose.”).
[80] It appears from the first finding noted above that the district court accepted defendants’ contention that zone-jumping could cause no disparate impact where it did not produce a change in the overall racial compositions of the transferor and transferee school districts. The district court erred in accepting this contention, for the lack of variation in overall racial composition does not end the Title VI regulations inquiry. As discussed above, the inquiry into whether transfers increase the duality of a school district is to be made on a school-by-school basis; an increase in the racial identifiability of one school is enough to increase the duality of that school’s district as a whole in the way prohibited by court-ordered transfer provisions like Talladega County’s.[28] Likewise, we believe that an increase in the racial identifiability of the Training School would be enough to constitute a disparate impact under the Title VI regulations, regardless of whether overall racial balances have changed in either the Talladega County or the Talladega City school systems. Cf. Price v. Austin Independent School District, 729 F. Supp. 533, 550 (W.D.Tex. 1990), aff’d, 945 F.2d 1307Page 1421
to be attending school out of zone.[29] See R3-103 (Testimony of lead plaintiff and Talladega County parent Augustus Elston), 119 (Testimony of Talladega County parent and teacher Shirley Jones). They suggest that the Board could have discouraged zone-jumping by notifying the parents of students suspected to be attending out of zone. See Plaintiffs’ Brief on Appeal at 29. Plaintiffs also suggest, relying on the fact that neither Talladega City nor Sylacauga City was released from th Lee v. Macon County litigation until July 1988, that until that date the Board could have stopped zone-jumping to Talladega City by requesting that Talladega City comply with the transfer provision in its court order, a provision which was virtually identical to Talladega County’s.[30] See Plaintiffs’ Brief on Appeal at 29-30; R1-83-10. Even after Talladega City was released from the Lee v. Macon County litigation, plaintiffs contend, the Board could have reduced the incidence of zone-jumping by contacting Talladega City school officials and requesting that they voluntarily take action to stop interdistrict transfers by County students. See Plaintiffs’ Brief on Appeal at 30. There is no dispute that the Board has taken none of these measures. See, e.g., R1-83-10; R2-93-11.
[83] In finding that the Board was unable to prevent zone-jumping as a practical matter, the district court implicitly found that zone-jumping would have occurred no matter what actions were taken by the Board. In other words, the district court found that plaintiffs had not established that the Board’s policy regarding zone-jumping was causally linked to the disparate impact identified. We cannot conclude that this finding is clearly erroneous. First of all, there was evidence that the Board could not have relied on the withholding of student records to combat zone-jumping; two witnesses testified that county superintendents could not legally withhold student records for any reason when the records were properly requested, see R3-133 (Testimony of Talladega City School Superintendent Billy Mills); R4-325 (Testimony of Talladega County School Superintendent Lance Grissett), although it is also true that we could not find a state law governing the transfer of student records, and that there is some question whether records requested by a student attempting to attend out-of-district are “properly requested.”[31] Second, there was evidence that notifying parents of out-of-zone students would not have been an effective way to combat zone-jumping. At least two witnesses testified that parents have been willing to falsify address information and arrange legal guardianships for their children to get their children into desired out-of-zone schools. See R3-121-22 (Testimony of Talladega County parent and teacher Shirley Jones); R5-509-16 (Testimony of Sylacauga City teacher Rochelle Kidd). This evidence suggests that many parents have been so anxious to remove their children from County schools that a mere warning from County school officials would be insufficient to stop them from sending their children out of zone. As for the contentions that the Board should have requested that Talladega City comply with its court-ordered transfer provision, and that after July 1988 the Board should have asked the City voluntarily to combat zone-jumping, plaintiffs produced no persuasive evidence that making such requests to the City Board would have reduced the zone-jumping problem. When asked by plaintiffs’ attorney whether the City would have “taken some effort to control the influx of students fromPage 1422
the county system” if asked to do so by the County, Talladega City School Superintendent Billy Mills testified, “I can’t answer that because it would depend on the time request and what was involved as to the action we would have taken.” R3-143. Although Superintendent Mills testified that “[w]e [the City] would have cooperated with them [the County]” if the County had asked the City for assistance in preventing zone-jumping, R3-143, Superintendent Mills never stated that the City would actually have taken any action to combat zone-jumping by County students.[32] We cannot conclude from the evidence before us that the district court clearly erred in finding that the Board was unable to prevent zone-jumping, and thus cannot conclude that the district court clearly erred in finding that plaintiffs had failed to prove that the Board’s policy towards zone-jumping was causally related to any disparate impact. Since a plaintiff must demonstrate a causal link between a challenged practice and the disparate impact identified to make a prima facie case under the Title VI regulations, see supra Part IV.A1., and since these plaintiffs have not demonstrated a causal link between the Board’s zone-jumping policy and the increase in racial identifiability at the Training School, the district court properly ruled in the Board’s favor on plaintiffs’ Title VI regulations challenge to the Board’s zone-jumping policy.[33]
[84] The district court’s conclusion that the Talladega County Board had not violated either the equal protection clause or the Title VI regulations, a conclusion we have just held proper, explains why it denied plaintiffs relief on their zone-jumping claims even after the Talladega City Board was added as a party, seePage 1423
the City Board was that, to the extent the County Board was liable for violating either the equal protection clause or the Title VI regulations, joinder of the City Board as a party defendant was necessary to an effective remedy against the County Board. See id. However, the district court’s determination that the County Board was not liable for violating either the equal protection clause or the Title VI regulations, a conclusion we have just held proper, rendered moot the issue of the proper remedy for any violation and thus irrelevant the presence of the City Board as a party. Therefore, the district court’s refusal to grant plaintiffs relief on their interdistrict transfer claims even after the City Board was added as a party was proper.
[85] d. The Reassignment of Students Following the Closing of the Hannah Mallory Elementary SchoolPage 1424
attendance zones. Thus, any black students who would have been affected by the overcrowding and concentration of black students at the Training School following the closing of Hannah Mallory are now attending the substantially more integrated Stemley Bridge Road School.[36] In acknowledgement of these changed circumstances, the only relief plaintiffs now request is an injunction regarding 1) the feeder patterns for the Training School and 2) zone-jumping. Thus, their challenge to the reassignment of Hannah Mallory students is now moot, except to the extent that the Board’s reassignment actions may be evidence of its intent to discriminate in making some other decision. Because plaintiffs’ challenge is moot, we will not consider it. However, we have considered the Board’s reassignment actions as part of the overall evidence of the Board’s intent to discriminate in making other challenged decisions.[37]
[90] B. BREACH OF CONTRACT CLAIMPage 1425
[93] C. FIRST AMENDMENT CLAIMPage 1426
to a future suit based on actions taken or conditions arising since trial.[38]
[105] V. CONCLUSION
[106] For the foregoing reasons, we affirm the district court’s judgment for defendants on the Fourteenth Amendment, Title VI, and Title VI regulations claims. We also affirm the district court’s dismissal of the breach of contract claim and of the Alabama Open Records Act claim, and we affirm the district court’s rulings regarding the receipt of evidence of events occurring before March 13, 1985, or after August 23, 1989. However, we vacate the district court’s dismissal of plaintiffs’First Amendment claim and remand the case with instructions.
The district court refused to consider plaintiffs’ offer of proof on remand because the evidence proffered involved events occurring after August 23, 1989, the last day of trial, and it did not believe that an expansion of the lawsuit was warranted See R2-117; R2-125; R2-127. As discussed below, we do not believe that the district court abused its discretion in so ruling. See infra Part IV. D. 3. Thus, for the purposes of this appeal, we are only evaluating Board actions regarding zone-jumping that were taken on or before August 23, 1989, the last day of trial. However, our holdings here are no bar to a future suit challenging Board actions regarding zone-jumping that were taken since trial.
Be it resolved, that the recording of the proceedings conducted by the Talladega County Board of Education by anyone, in any manner, other than the official secretary of the Board is hereby prohibited and anyone violating this resolution shall be escorted from the meeting and denied further access to meetings of the Board.
See R1-83-7-8.
[a] recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.
Section 100.3(b)(3) provides that
[i]n determining the site or location of a facilit[y], an applicant or recipient may not make selections with the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any programs to which this regulation applies, on the ground of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this regulation.
See also Georgia State Conference, 775 F.2d at 1417 n. 18.
Throughout the trial of this case, the parties and the district court operated on the assumption that the scheme articulated i Georgia State Conference applied. Neither party has questioned this assumption on appeal. Because we conclude that plaintiffs are not entitled to relief even under the more relaxed standard under which they litigated, we need not decide whether Wards Cove required the reallocation of the burden of persuasion on justification in Title VI disparate impact cases litigated afte Wards Cove was decided but before the Civil Rights Act of 1991 became law.
We note that both parties and the district court appeared to assume that, if the new school had been placed at the Training School site, regardless of whether entirely new facilities would have been needed or whether some of the existing space at the Training School could have been used for the new school, the Board would have had to acquire a fairly substantial amount of land adjacent to the Training School in order to accommodate the consolidated elementary students. In other words, everyone seemed to take as a given that, whatever new facilities would have been needed, those facilities could not simply have been placed on existing Training School land (i.e. land the Board already owned). We assume that this is true, since the parties and the district court did so.
The district court on remand refused to consider evidence regarding post-trial events, including this annexation evidence, and we have held that it did not abuse its discretion in doing so. See infra Part IV. D. 3. Thus, we do not consider the evidence here. We are only evaluating Board actions regarding zone-jumping that were taken on or before the last day of trial. However, our holdings here are no bar to a future suit challenging Board actions regarding zone-jumping that were taken since the close of evidence at trial on August 23, 1989.
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