Appellate Court Finds Alabama School District Succession Was Racially Motivated, But Don't Overlook the Importance of the Lower Court

The Eleventh Circuit has straightened out the school segregation mess in Birmingham, Alabama (or at least part of it).  As many recall from last year, a district court found that Gardendale had acted with racially discriminatory intent when it succeeded from its parent school district.  Yet, the court allowed the succession to proceed, reasoning that stopping it would do more harm than good.  The Eleventh Circuit affirmed the district court’s finding as to discriminatory intent, but found that the lower court erred as a matter of law in allowing the succession to occur.

As to the discriminatory intent, the Eleventh Circuit recounted much of the most troubling evidence.  For instance, it wrote:

While Harvey was performing the feasibility study, the secession leaders formed a nonprofit entity called Future of Our Community Utilizing Schools (FOCUS) Gardendale. FOCUS Gardendale existed to raise funds and to lobby for higher property taxes to support the proposed school system. FOCUS Gardendale circulated a flyer that depicted a white elementary-school student and asked, “Which path will Gardendale choose?” It then listed several well-integrated or predominantly black cities that had not formed municipal systems followed by a list of predominantly white cities that had. The flyer described the predominantly white communities as “some of the best places to live in the country.”

​The most explicit evidence of discriminatory intent was from the statements and online posts of community members.  Gardendale argued that those private motivations could not be attributed to the district.  The Eleventh Circuit disagreed, explaining:

To be sure, only a state actor can violate the Fourteenth Amendment, but constituent statements and conduct can be relevant in determining the intent of public officials. In Arlington Heights, the Supreme Court explained that “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” And as examples of the type of evidence that may be considered, it listed the “historical background” of a decision and the “specific sequence of events leading up to the challenged decision.” For example, we have relied on evidence about the work of private lobbyists to hold that a district court did not clearly err when it ruled that two state constitutional amendments were “financially, and not discriminatorily, motivated.” . . . . And in Washington v. Seattle School District No. 1, the Supreme Court affirmed a finding that a voter initiative was motivated by a discriminatory purpose based on statements made by citizen sponsors and proponents. 458 U.S. 457, 471 (1982); see also City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 196–97 (2003) ( “[S]tatements made by decisionmakers or referendum sponsors during deliberation over a referendum may constitute relevant evidence of discriminatory intent in a challenge to an ultimately enacted initiative.”).

. . . . The district court did not find that “statements made by private individuals ..., in and of themselves, constitute[d] state action for the purposes of the Fourteenth Amendment.” Nor did it, as the Gardendale Board argues, impermissibly ascribe the racially discriminatory motivations of a few to the actions of the Gardendale Board as a whole. The district court instead understood that the statements of those who played a primary role in lobbying for the state action “translate[d] their grassroots effort into official action.” And the secession leaders became members of the Gardendale Board and advisory board. They testified that they “began having conversations with the mayor ... and the council,” and that they “put the mayor and the council in a head lock until they came to their own conclusions that the school system had to happen.” . . . Their statements and actions directly bear on the purpose of the Gardendale Board.

With that finding in hand, the question of whether to permit the succession was relatively easy and it was on this point that the district court erred.  And given that a desegregation order was still in place for the county school system and succession would negatively affect it, the district court should have blocked the succession in any event.  The Eleventh Circuit wrote:

The district court erred when it ruled that a partial secession could be permitted even though the Gardendale Board had not proved a “lack of deleterious effects on desegregation.” Because the Gardendale Board was the moving party, it bore the burden of proof. Our precedents make clear that a splinter district must propose and defend a secession plan that will not impede the desegregation efforts of the school district subject to an ongoing desegregation order. When the splinter district fails to satisfy that burden, “the district court may not ... recognize [its] creation,” Stout I, 448 F.2d at 404. For example, . . . , we [previously] declared that “[t]he division of a school district operating under a desegregation order can be permitted only if the formation of the new district will not impede the dismantling of the dual school system in the old district,” and “[i]n such a situation, the proponents of the new district must bear a heavy burden to show the lack of deleterious effects on desegregation.” Similarly, . . ., we explained that the burden to show that the “implementation and operation” of a splinter district “meet[s] the tests outlined for permitting newly created districts to come into being” remains at all times with the splinter district. To satisfy that burden, the splinter district “must express its precise policy positions on each significant facet of school district operation.”  When the Gardendale Board failed to satisfy its burden, the district court should have denied the motion before it.

Hats off to the plaintiffs and the NAACP LDF.  Wins in school desegregation cases are few and far between today.  

I would note, however, that the district court is owed some credit as well.  Criticism of the district court became daily news for a while last year.  I did my part to add to the criticism.  But what most missed and what I only pointed out in informal circles was that the district court had done plaintiffs a huge favor.  One of the toughest thing a district court ever does is make the inference of discriminatory intent. 

Empirical studies of judicial opinions reveal that despite substantial evidence courts rarely draw the inference.  I have been part of cases in which we put on admissions from school district officials that the district maintained its student assignment policies to pacify white parents who would otherwise leave the district.  We added equally impressive empirical evidence that showed students were assigned to classes not based on the standardized test scores on which the district claimed it relied, but based on other factors.  Regression analysis revealed that race was the most likely explanation.  Yet, we still lost because the district court reasoned that some other explanation could have been at play.

The district court in Gardendale did not take the easy way out.  The judge looked at the evidence and made the proper, yet ever so rare, determination that racial motivations explained the school district's action.  It was this factual finding more than anything that gave plaintiffs a serious chance of victory on appeal.  Had the district court not made that finding, plaintiffs would have almost certainly lost on appeal.