Stout v. Jefferson County Board of Education (250 F. Supp. 3d 1092, 2017)

MEMORANDUM OPINION AND ORDER

MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE

“[T]he future of our world revolves around public education. There’s nothing more important that we do” than “edu-cat[ing] our children.” (Doc. 1124, p, 180). That proposition, offered by a member of the Gardendale Board of Education, is perhaps the one point on which .all of the parties in this school desegregation case agree. The proposition is sound. In its landmark decision in Brown v. Board of Education, the United States Supreme Court recognized that public education is critical for the welfare of our nation’s children. The Supreme Court stated that public education:

is the very’foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing- him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in-life if he is denied the opportunity of an education. - .

347 U.S. 488, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

Each of the parties in this case—the parents who serve' as the private plaintiffs, the United States, the Jefferson County Board of Education, and the Gardendale Board of Education—is trying to secure the best public education for the students whom the party serves. Though they share the same goal, the parties’ strategies for accomplishing the goal are at odds.

Many citizens in the City of Gardendale prefer a municipal public school, system to the county-wide system under which the four public schools in the Gardendale community currently operate. Through a grassroots effort, those citizens persuaded the Gardendale City Council to create the Gardendale Board of Education. The Gar-dendale Board of Education then selected a superintendent, and the superintendent has formulated a plan for Gardendale’s four schools to separate from the Jefferson County public school district. The Garden-dale Board has asked the Court to approve the superintendent’s plan of separation. This opinion resolves the Gardendale Board’s motion to separate. (Doc. 1040).

The Court’s role in assessing Garden-dale’s proposed separation from the Jefferson County public school system is limited. For purposes of this school desegregation action, the Court is not concerned with the wisdom of separation generally or the extent to which Gardendale can fund and successfully operate a separate public school system. While certain financial issues touch upon the constitutional analysis that the Court must undertake, it is the task of the school boards and the citizens to whom the boards are accountable to wrestle with fiduciary and financial questions. The Court defers to local > decision-makers on matters that do not implicate the Court’s desegregation order.

' The Court’s desegregation order is designed to remedy the injury that institutionalized racial segregation causes. The Supreme Court’s holding in Brown is simple and unaffected by the passage of time: when black public school students are treated as if they are inferior to white students, and that treatment is institutionalized by state or municipal action, the resulting stigma unconstitutionally assails the integrity of black students. That racial stigma is intolerable under the Fourteenth Amendment. That was true in 1954, and it is true today. The Fourteenth Amendment still requires equal protection of school children under the law. State and municipal action that “generates a feeling of inferiority” in African-American children and treats the students and their parents as second-class citizens violates the Fourteenth Amendment and jeopardizes those families’ equal right to pursue' a public education and all of the opportunities that stem from public education. 347 U.S. at 494, 74 S.Ct. 686.

That injury "prompted the Supreme Court to hold in Brown, that separate white and black schools are inherently unequal. That injury compelled the Supreme Court’s mandate in Green v. County School Board of New Kent County, Virginia that all vestiges of racial segregation in public schools must be eliminated “root and branch.” 391 U.S. 430, 438, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). And that injury led the Supreme Court to prohibit a municipal separation in Wright v. Council of City of Emporia because, under the circumstances, the message of inferiority conveyed by the proposed separation could not “have escaped the Negro. children in the county” and that message was likely to have an “adverse psychological effect” on black students. 407 U.S. 451, 466, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972).

The Gardendale Board argues that “things have changed” since the Supreme Court decided Brown, Green, and Wright, that federal courts are ‘“tired of school desegregation litigation,’ ” and that “courts must open their eyes to the conditions of the present when they consider” whether the purported burdens that federal court enforcement' of desegregation decrees places “on federalism and the Tenth Amendment are still justified.” (Doc. 1097, pp. 17, 18 (quoting 1 Ronna Greff Schneider, Education Law § 5:10 (Westlaw 2016 update)), 30). The Gardendale Board urges the Court to focus its constitutional analysis on a series of decisions that the United States Supreme Court has issued since 1991 and to relegate to the annals of history “older decisions like Green and Wright” and “their aged progeny like Ross [v. Houston Independent School District, 559 F.2d 937 (5th Cir. 1977) ] and Stout [v. Jefferson County Board of Education, 466 F.2d 1213 (5th Cir. 1972) ].” (Doc. 1097, pp. 17, 30). By logical extension, Brown v. Board of Education, issued in 1954, must fall into the category of civil rights opinions that the Gardendale Board considers out of date.

The Court disagrees with the Garden-dale Board’s attempt to minimize and compartmentalize early school desegregation decisions. Those decisions are relevant and important in their own right, and those opinions supply the constitutional underpinnings for every school desegregation opinion that has followed. All of the school desegregation decisions that the United States Supreme Court and the Eleventh Circuit Court of Appeals have issued are binding on this Court, meaning that the Court must follow the precedent that those opinions establish.

Therefore, to shed light on the complexity of the issues surrounding Gardendale’s motion and to gauge just- how much “things have changed” in public education in Jefferson County since 1971, this opinion traces the precedent that the Supreme Court and the Eleventh Circuit Court of Appeals have established from 1954 to the present. That precedent supplies the legal framework for the Court’s analysis of Gar-dendale’s motion to separate. The details of the school desegregation opinions count; short quotes carved from opinions and presented out of context do not adequately convey the holdings in .those decisions. The Court supplies that context to help the members of the Gardendale Board, the members of the Jefferson County Board, and the citizens impacted by this decision understand. the rationale for the . Court’s decision.

Because the development of the law of public school desegregation is intertwined with the procedural and factual background of this case, the Court will weave the two together before stating its findings of fact and conclusions of law. The Court examines this material with an eye toward answering a significant question that Gar-dendale’s separation effort presents, namely what becomes of African-American- students zoned for decades to a particular feeder pattern for purposes of desegregation when federal oversight nears an end.

PROCEDURAL AND FACTUAL BACKGROUND

1954: Brown v. Board of Education— Separate is Inherently Unequal

The story of school desegregation begins with the United States Supreme Court’s decision in Brown v. Board of Education of Topeka. The students in that action sought “the aid of the courts in obtaining admission to the public schools, of their community on a nonsegregated basis.” 347 U.S. at 487, 74 S.Ct. 686. Chief Justice Warren explained that in the years following the adoption of the Fourteenth Amendment, black and white schools had “been equalized, or [were] being equalized, with respect to buildings, curricula, qualifications .and salaries of teachers, and other ‘tangible’ factors.” Id. at 492, 74 S.Ct. 686. Therefore, to determine whether state laws that required or permitted segregation of public school students according to race violated the Fourteenth Amendment, the Supreme Court had to examine “the effect of segregation itself on public education.” Id.

To evaluate the effect of racial segregation on public education, the- Supreme Court examined a series of sociological studies. Those studies were entitled “Effect of Prejudice and Discrimination on Personality Development,” “Personality in the Making,” “The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion,” “What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?,” “Educational Costs, in Discrimination and National Welfare,” “The Negro in the United States,” and “An American Dilemma.” See 347 U.S. at 494 n. 11, 74 S.Ct. 686.

Based on these studies, the Supreme Court concluded that racially separate facilities are “inherently unequal” because of the adverse psychological impact that segregated schools have on African-American children. 347 U.S. at 495, 74 S.Ct. 686. Extending to public elementary and secondary schools the rationale that it had applied in cases concerning institutions of higher learning, the Supreme Court held that separating black students “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Id. at 494, 74 S.Ct. 686. Citing findings from the district court, the Supreme Court added: “The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group.” Id.

1955: Brown JJ—Desegregation “With All Deliberate Speed”

In Brown II, the Supreme Court considered how best to implement the principles that the Court articulated in Brown I. The Supreme Court assigned to local school authorities the “primary responsibility for elucidating, assessing, and solving” the problems associated with desegregation and instructed lower federal courts “to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.” Brown v. Bd. of Educ., 349 U.S. 294, 299, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II). The Supreme Court directed district courts to fashion equitable remedies that would provide admission to public schools “on a racially nondiseriminatory basis with all deliberate speed.” Id. at 301, 75 S.Ct. 753.

June 1965: Mr. Stout Sues the Jefferson County Board of Education

Ten years after the Supreme Court directed federal courts to act “with all deliberate speed” to desegregate public schools, the Jefferson County system remained racially segregated. On June 4, 1965, Linda Stout’s father filed a complaint and a motion for preliminary injunction in which he asked this Court, on behalf of his daughter and a class of African-American public school students, to desegregate the Jefferson County public school system. (Doc. 2; Doc. 3; Doc. 1118, ¶ 3).

A few weeks later, this Court issued an injunction that prohibited the Jefferson County Board of Education and the individual board members “from requiring segregation of the races in any school under their supervision” and ordered public schools in the Jefferson County system to admit students “on a racially, non-discriminatory basis with all deliberate speed” in accordance with Brown II. (June 24, 1965 Injunction and Order, p. 1, cited in Doc. 1, p. 2). In the opinion that accompanied the injunction, the Court found that “[wjhile there is no official or record designation of any ,[] schools [in the Jefferson County public school system] as white or Negro, the evidence is undisputed that no Negro pupil has ever attended a school attended by white pupils in the county system.”. (Id. at p. 2). Similarly, the Court found that “[njo Negro teacher has ever been assigned to a school attended by white pupils, nor has any white teacher ever been assigned to a school attended only by Negro pupils.” (Id.). The Court explained that of the 63,000 students in the Jefferson County public school system, 45,000 were white, and 18,000 were black. The school system employed 2,268 teachers, 600 of whom were black. (June 24, 1965 Memorandum Opinion, p. 2, cited in Doc. 1, p. 2. A copy of the June 24, 1965 memorandum opinion is attached as Appendix B).

Citing a 1963 opinion from the Fifth Circuit Court of Appeals, this Court stated that the Jefferson County Board of Education was responsible for “initiating desegregation” and concluded:

in this case the only failure to discharge its “burden of initiating desegregation” which may be ascribed to- the Board has been inaction on the part of [the] Superintendent and Board in giving notice to students, parents, teachers, -and other appropriate school personnel calculated to inform them of the rights of Negro parents and pupils to apply for transfer to schools attended by white pupils.

(June 24, 1965 Memorandum Opinion, p. 3, citing Armstrong, et al. v. Bd. of Educ. of City of Birmingham, Jefferson Cty., Ala., et al., 323 F.2d 333 (5th Cir. 1963)). The Court questioned whether a black student had standing to challenge the Board’s assignments of teachers and administrators and “expressly disclaim[ed] the expression of any opinion” in that regard. (June 24, 1965 Memorandum Opinion, p. 3).

The Court gave the Jefferson County Board of Education one week to submit a plan “to make an immediate start in the desegregation of the schools of the Jefferson County public school system” by “effectively providing] for the carrying into effect .:. of the Alabama Pupil Placement Law as to all school grades without racial discrimination ...” (June 24, 1965 Injunction and Order, pp. 1-2, cited in Doc. 1, p. 2). The Alabama Pupil Placement Law authorized black students to apply .to transfer to a school attended by white students. (June 24, 1965 Memorandum Opinion, p. 3). Thus, this Court placed the burden of desegregation on black students.

July 1965: The United States Intervenes as a Plaintiff

On July 12, 1965, the United States Attorney General filed a motion to intervene as a plaintiff. (Doc. 1, p. 2—July 12, 1965 motion). The Court granted the motion and added the United States as a plaintiff in this action. (Doc. 1, p. 2—July 12, 1965 docket order).

1965-1968: Jefferson County’s Freedom of Choice Desegregation Plan

To fulfill its obligation to desegregate the elementary, middle, and high schools in the Jefferson County public school system, the Jefferson County School Board adopted ,a “freedom of choice” plan. On July 23, 1965,. this Court approved the plan. (Doc. 1, p. 5—July 23, 1965 docket order). The plan, which the Jefferson County Board submitted “as directed and ordered” but without “consent or agree [ment],” called for black students entering the first grade to report to black schools to register. (June 30, 1965 desegregation plan,' p. 1, cited in Doc. 1, p. 2), White students entering the first grade were to report to white schools to register. Students could then apply for a transfer to any elementary school “whether formerly attended only, or predominantly, by White children, or only by Negro children.” (Id. at, p. 7, cited in Doc. 1, p. 2).

The private plaintiffs and the United States challenged the Board’s plan in the Fifth Circuit Court of Appeals. (Doc. 1, p. 5—-August 5 & August .11, 1965 docket entries). In August 1965, the Fifth Circuit vacated the plan and remanded the case to this Court for further proceedings. (Doc. 1, p. 5). The freedom of choice plan went through a number of revisions and a number of appeals between the fall of 1965 and 1968. (Doc. 1, pp. 5-8).

May 1968: Green—Eliminating Racial Segregation in Public Education “Root and Branch”

In Green v. County School Board of New Kent County, Virginia, the Supreme Court explained that anyone who thought the mandate of the Brown decisions concerned only race-neutral public school admissions was mistaken; The- Supreme Court stated:

It is of course true that for the time immediately after Brown II the concern was with-, making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. The principal focus was on obtaining for those Negro children courageous enough to break with tradition a place in the ‘white’ schools. Under Brown II that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about ....

391 U.S. at 435-36, 88 S.Ct. 1689 (citation omitted).

In Green, the Supreme Court considered whether a “freedom-of-choice” desegregation plan fulfilled a public school district’s constitutional obligation to admit students “on a non-racial basis” per Brown II. 391 U.S. at 431-32, 88 S.Ct. 1689. The Court found that the freedom-of-choice plan im-permissibly shifted the responsibility for desegregation from the defendant school board to black students and- their parents. Id. at 441-42, 88 S-.Ct. 1689. The Supreme Court added that a public school system must not only admit students on a nonracial basis’but also* “abolish-its dual, segregated system” altogether. Id. at 437, 88 S.Ct.' 1689.

Writing for a unanimous court, Justice Brennan explained that segregation was firmly embedded in every aspect of the school systems at issue in Brown:

Racial identification , of the system’s schools was complete, extending not just to the composition of student bodies at the two schools but to every facet of school operations—faculty, staff, transportation, extracurricular activities and facilities. In short, the State, acting through the local school board and school officials, organized and operated a dual system, part ‘white’ and part ‘Negro.’

391 U.S. at 435, 88 S.Ct. 1689. Penning the words that became the litmus test for public school desegregation, Justice Brennan stated that school boards that had operated “state-compelled dual systems” were “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Id. at 437-38, 88 S.Ct. 1689. The Supreme Court admonished; “The constitutional rights of Negro school children articulated in Brown I permit no less than this; and it was to this end that Brown II commanded school boards to bend their efforts.” 391 U.S. at 438, 88 S.Ct. 1689.

The Supreme Court found that the defendant school system had deliberately perpetuated an unconstitutional dual system by waiting ten years after the Brown II decision to adopt even a freedom-of-choice plan’to begin the work of desegregation, “compounding] the harm of such a system.” 391 U.S. at 438, 88 S.Ct. 1689. The Supreme Court held, that such delays were “no longer tolerable.” Id. (citing Griffin v. Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218,. 234, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964));

The Supreme Court instructed public school systems to “transition to a unitary, nonracial system of public education” and abolish “ ‘the [former] system of .segregation and its effects.’” 391 U.S. at 436, 440, 88 S.Ct. 1689 (quoting Bowman v. Cty. Sch. Bd. of Charles City Cty., 382 F.2d 326, 333 (4th Cir. 1967) (Sobeloff, J., concurring)). The Supreme Court reminded lower courts that they'had “‘not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of .the past as well as bar like discrimination-in the future,’ ” Green, 391 U.S. at 438 n. 4, 88 S.Ct. 1689 (quoting Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965)) (emphasis added). The Supreme Court held that public school systems could use a freedom-of-choice plan if “it offer[ed]' real promise’ of ... desegregation[,]” but “if there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary, nonracial school system, ‘freedom of choice’ must be held unacceptable.” 391 U.S. at 440-41, 88 S.Ct. 1689.

1968-1969: Jefferson County Continues to Implement Freedom of Choice

On March 7, 1969, this Court overruled a motion in which the United States and the private plaintiffs asked the Court for an order directing the Jefferson County School Board “to adopt and implement a plan of pupil assignments, based on criteria other than freedom of choice.” (Doc. 1, p. 10—March 7,1969 order).

October 1969: Alexander—Deliberate Speed is Not Fast Enough

In October 1969, more than 15 years after Brown I, the United States Supreme Court issued a short per curiam opinion. Citing its decision in Green, the Supreme Court stated:

The question presented is one of paramount importance, involving as it does the denial of fundamental rights to many thousands of school children, who are presently attending Mississippi schools under segregated conditions contrary to the applicable decisions of this Court. Against this background the Court of Appeals should have denied all motions for additional time because continued operation of segregated schools under a standard of allowing ‘all deliberate speed’ for desegregation is no longer constitutionally permissible. Under explicit holdings of this Court the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.

Alexander v. Holmes Cty. Bd. of Educ., 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969) (citing Green, 391 U.S. at 438-39, 88 S.Ct. 1689, and Griffin, 377 U.S. at 234, 84 S.Ct. 1226).

December 1969: Singleton—The Move from Freedom of Choice to Zoning

In the wake of Alexander, the Fifth Circuit consolidated appeals in thirteen school desegregation cases, including this case, and examined the desegregation efforts in the thirteen school districts. Singleton v. Jackson Mun. Separate Sch. Dist., 419 F.2d 1211 (5th Cir. 1969). The Fifth Circuit held that “[b]ecause of Alexander [ ], each of the cases here .., must be considered anew, either in whole or in part, by the district courts[,]” and the Fifth Circuit reminded the lower courts that the Alexander decision “sent the doctrine of deliberate speed to its final resting place.” 419 F.2d at 1216.

The Fifth Circuit explained to the district courts that “converting to a unitary system involved basically the merger of faculty and staff, students, transportation, services, athletic and other extra-curricular school activities” in white and black schools. 419 F.2d at 1216. The Court of Appeals directed all of the school districts, including Jefferson County, to develop desegregation plans that addressed student assignment, faculty and staff, transportation, and school construction and site selection. The plans had to contain majority-to-minority transfer provisions that would allow students to transfer from a school where their race was in the majority to a school where their race was in the minority. Id. at 1217-18. To give black parents a voice in the school districts, the Fifth Circuit directed district courts to “suggest the advisability of biracial advisory committees to school boards in those districts having no Negro school board members.” Id. at 1217 n. 2.

The Court of Appeals held that the desegregation plan that Jefferson County had presented in the consolidated appeal did not “reflect any substantial change” from a plan that the Court of Appeals had previously rejected, and the Fifth Circuit directed Jefferson County to comply with Alexander. 419 F.2d at 1219. The Fifth Circuit ordered Jefferson County and the other districts to implement their desegregation plans by February 1, 1970. Id. at 1217; (Doc. 1118, ¶ 8).

December 22, 1969: Homewood Initiates Separation from the Jefferson County School System

Less than one month after the Fifth Circuit issued its opinion in Singleton, the City of Homewood formed a municipal board of education. (Doc. 1, p. 17—June 8, 1970 motion, attachment C). Before Home-wood formed a municipal board of education, there were three elementary schools and a junior high school in the Homewood feeder pattern. Historically, these four schools educated white children. Another school in the Homewood feeder pattern, Rosedale School, historically educated black students in grades 1-12. White high school students living in the City of Homewood attended Shades Valley High School, which was located outside of Homewood’s city limits. (Doc. 1, p. 17— June 8,1970 Memorandum of Law).

The Homewood Board of Education and the Jefferson County Board of Education executed an agreement in February 1970 pursuant to which Jefferson County agreed to transfer to Homewood the schools located in the City of Homewood that educated white children. (Doc 1, p. 17—June 8, 1970 motion, attachment C, ¶ 1). The agreement called for the City of Homewood to convey the Rosedale School to the Jefferson County school system. (Id. attachment C, ¶ 3). Jefferson County converted the Rosedale School to a “curriculum center.” As of June 1970, 10% of the student population of the Homewood public school system was black; 26% of the Jefferson County student population was black. (Doc 1, p. 17—June 8,1970 Brief, p. 12).

May 4, 1970: Vestavia Hills Initiates Separation from the Jefferson County School System

The Vestavia Hills City Council formed a municipal board of education on May 4, 1970. (Doc 1, p. 17—June 8, 1970 motion, attachment C). Before Vestavia formed a municipal board of education, there was one elementary school and one junior high school in Vestavia. Through the 1970-71 academic year, the elementary school had no black students. Two percent of the student population in the junior high school was black, but none of those black students resided within Vestavia’s municipal limits. Specifically, the junior high served 1,559 white students and 13 black students. High school students living in the City of Vestavia Hills attended Berry High School which was located outside of Vestavia’s city limits. (Doc. 1, p. 17—June 8, 1970 Memorandum of Law, pp. 15-16; Doc 1, p. 20—1970-71 Jefferson County School Enrollment Report).

June-July 1970: This Court Approves Three Municipal Splinter Districts

The United States filed motions in which it asked this Court to add the Homewood Board of Education and the Vestavia Hills Board of Education as defendants in this action. (Doc. 1, p. 17—June 8, 1970 motions). This Court conducted a two-day evidentiary hearing concerning the motions. (Doc. 1, p. 18—July 1, 1970 docket entries). The Court held a supplemental hearing concerning the Vestavia Hills school system. (Doc. 1, p. 18—July 23, 1970 docket entry).

On July 13, 1970, the Court entered an order in which it added the Homewood municipal system as a party defendant and set desegregation requirements for that municipal system. (Doc. 1, p 18—July 13, 1970 docket order). The order required the Homewood school system to “take affirmative steps to eliminate all vestiges of the dual system” that had existed in Jefferson County and to address all of the Green factors as they pertained to the Homewood system. The Court ordered the municipal district to allow majority-to-minority transfers, and the Court retained jurisdiction over the Homewood system to ensure compliance with the desegregation order. (Doc. 1, p. 18—July 13,1970 docket order).

The Court added the Vestavia Hills Board of Education as a party defendant on July 23, 1970. (Doc. 1, p. 19—July 23, 1970 docket order). The Court “enjoin[ed] the Vestavia Hills Board of Education and [its] members from failing to provide equal educational opportunity to all students residing in [the Vestavia Hills] system without regard to race .... ” (Doc. 1, p. 19— July 23, 1970 docket order). The Court retained jurisdiction over the Vestavia Hills Board of Education “for the purpose of assuring implementation” of the Court’s order. (Doc. 1, p. 19—July 23, 1970 docket order).

Midfield schools were operational by 1971. (Doc. 1, p. 21—July 1, 1971 motion concerning transfer of properties from Jefferson County to Midfield).

April 1971: Swann—Supreme Court Approves Non-Contiguous Zoning and Rejects Racial Ratios

In Swann v. Charlotte-Mecklenburg Board of Education, the Supreme Court “defin[ed] in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once.” 402 U.S. 1, 5, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The Supreme Court emphasized that in the 17 years since it had issued Brown I, the Court had not “deviated in the slightest degree from that holding or its constitutional underpinnings[,]” but “[deliberate resistance of some to the Court’s mandates ha[d] impeded the good-faith efforts of others to bring school systems into compliance.” Id. at 11, 13, 91 S.Ct. 1267. Moreover, the desegregation process had:

been rendered more difficult by changes since 1954 in the structure and patterns of communities, the growth of student population, movement of families, and other changes, some of which had marked impact on school planning, sometimes neutralizing or negating remedial action before it was fully implemented.

Id. at 14, 91 S.Ct. 1267.

Examining generally the role that equitable principles should play in school desegregation, the Supreme Court stated that lower courts should use equitable remedies “to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution!,]” but courts should exercise their equitable powers “only when local [school] authority defaults.” 402 U.S, at 16, 91 S.Ct. 1267. When a district court invokes equitable principles to fashion a remedy, the- remedy-must be “reasonable, feasible and workable[,]” but the Supreme Court provided no rigid requirements for a particular remedy. Id. at 31, 91 S.Ct. 1267. The Supreme Court explained:

in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to suggest the nature of limitations without frustrating the appropriate scope of equity.

Id.

Turning from general principles -to specific concerns, the Supreme Court addressed the topic of school construction. The Court found that school boards-had used school construction to thwart desegregation. The Supreme Court held:

In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes,-since Brovm, closed schools which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of- the races with a minimum departure from the formal principles of ‘neighborhood zoning.’ Such a policy does more than simply influence the short-ruri composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with ‘neighborhood zoning,’ further lock the school system into the mold of separation of the races. Upon a proper showing a district court may consider this in fashioning a remedy.

In ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is thus a factor of great weight. In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual system. When necessary/ district courts should retain jurisdiction to assure that these responsibilities are carried out.

402 U.S. at 21, 91 S.Ct. 1267.

The Supreme Court then turned from the topic of school construction to the topic of racial demographics of student populations .and examined four aspects of student assignments: racial ratios, racially identifiable schools within a district that also operates desegregated schools, non-contiguous zoning as a means of desegregation of student populations, and bussing to facilitate desegregation. With respect to racial quotas, the Court rejected the use of arbitrary quotas designed to create racial bal-anee within schools. 402 U.S. at 25, 91 S.Ct. 1267. The Court stated: “Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations!!,]” but the Court explained that racial balancing was not the purpose of school desegregation. Id.

With respect' to racially identifiable schools, the Supreme Court explained that “[t]he constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” 402 U.S. at 24, 91 S.Ct. 1267. Rather, “the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law.” Id. at 26, 91 S.Ct. 1267. When a district court monitors a school district that includes schools “that are all or predominately of one race,” the school boards:

have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on them part.

Id. The Court added that in districts with schools that are predominantly white or black, a voluntary majority-to-minority transfer provision in a desegregation order “is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation.” Id. To “be effective, such a transfer arrangement must grant the transferring student free transportation and space must be made available in the school to which he desires to move.” Id. at 26-27, 91 S.Ct. 1267.

With respect to zoning, the Supreme Court acknowledged “the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city.” 402 U.S. at 25, 91 S.Ct. 1267. The Supreme Court recognized that in the absence of a constitutional violation and a history of state-facilitated racial discrimination in public schools, it might be desirable to implement neighborhood school zones. But in a system that was obligated to eliminate a dual system, “the pairing and grouping of noncontiguous school zones is a permissible tool and such action is to be considered in light of the objectives sought.” Id. at 28, 91 S.Ct. 1267. Finally, the Supreme Court held that transportation assistance was a necessary companion to non-contiguous zoning. The Supreme Court left to district courts the task of deciding when bussing was appropriate in a particular public school district. Id. at 29-31, 91 S.Ct. 1267.

At the conclusion of the Swann opinion, the Supreme Court offered guidance about the role that courts should play when, after a public school district achieved unitary status per Green and Alexander, student populations once again became racially identifiable. That role, the Supreme Court explained, depends on the cause of public school re-segregation. Where the mobility of members of a community causes re-segregation, “[n]either school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system.” 402 U.S. at 31-32, 91 S.Ct. 1267. But when evidence demonstrates “that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools,” then a court may intervene. See id. at 32, 91 S.Ct. 1267. The same holds true for municipal action.

July 1971: Stout I

In the wake of the Swann decision, the Fifth Circuit vacated the desegregation plan in this case and ordered this Court to comply with Swann’s mandate. Linda Stout, et al. v. Jefferson Cty. Bd. of Educ., 448 F.2d 403, 404 (5th Cir. 1971). The Court of Appeals directed this Court to adopt a desegregation plan that would govern not only the Jefferson County public school system but also the post-1965 municipal districts within Jefferson County. Id. (directing this Court to “implement a student assignment plan for the 1971-72 school term” which “encompasses the entire Jefferson County School District as it stood at the time of the original filing of this desegregation suit”).

The Fifth Circuit authorized this Court to refuse to recognize splinter districts that “ ‘hinder vindication of federal constitutional guarantees.’” 448 F.2d at 404 (quoting N. Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971)). The Fifth Circuit stated:

where the formation of splinter districts, albeit validly created under state law, have the effect of thwarting the implementation of a unitary school system, the district court may not, consistent with the teachings of [Swann], recognize their creation.

448 F.2d at 404. Explaining that it was concerned not only with discriminatory intent but also with disruptive effects, the Fifth Circuit stated: “The process of desegregation shall not be swayed by innocent action which results in prolonging an unconstitutional dual system. The existence of unconstitutional discrimination is not to be determined solely by intent.” Id. at 404 n. 2. Finally, the Fifth Circuit instructed this Court to “implement fully” the Fifth Circuit’s Singleton decision as the decision relates to “desegregation of faculty and other staff, majority to minority transfer policy, transportation, school construction and site selection, and attendance outside system, of residence[,]” and the Fifth Circuit mandated annual reporting from the school boards subject to this Court’s supervision. Id. at 404.

September 1971 Singleton Order

To comply with the Fifth Circuit’s instructions, this Court ordered Jefferson County, Homewood, Vestavia Hills, and Midfield to “collaborate in preparing a uniform desegregation plan” that would apply to all of the school systems. (Doc. 1, p. 21—July 22, 1971 docket entry). The Court adopted a uniform desegregation plan on September 8,1971. (Doc. 1, p. 22—September 8, 1971 docket entry). The Court described the order as a plan for desegregation of public schools “grounded on the division of [Jefferson] County into mandatory, generally contiguous, attendance zones.” (December 3, 1971 Memorandum Opinion, p. 1, cited in Doc. 1, pp. 26-27). With the exception of “majority-to-minority” transfers and other narrow classes of transfers, attendance at schools other than a student’s zoned school was prohibited under the order. (Id.). The September 1971 order has governed Jefferson County’s efforts to meet its constitutional obligations for the past 45 years.

The September 1971 order addresses student assignments, school construction, attendance zones and alteration of zone lines, and transfers among the Jefferson County public schools and schools in the municipal public school systems in Jefferson County that formed after the Stout lawsuit began. (Doc. 226). The Gardendale zone was one of the 20 attendance zones created in the order. (Doc. 226, p. 2). There have been no significant modifications of the Gardendale attendance zone since the Court defined the zone in the September 1971 order.'(Doc. 1118, ¶18).

The September 1971 order establishes criteria for municipal school systems that' wish to separate from the Jefferson County system. Under a headirig titled “Separate Systems,” the order states:

(a) For those systems receiving students from an unincorporated area of Jefferson County and having complete responsibility ■ for educating all students residing in the area for all grades, the Jefferson County board or the tax-collector for Jefferson County shall pay to ■such system the ad valorem school taxes ■collected from the area for which the separate system is responsible; Where two or more systems are educating students at different grades for the same area, the systems affected shall attempt to negotiate an agreement regarding the division of ad valorem school taxes; and if negotiations fail, this court retains jurisdiction to resolve these financial questions.

(b) Based upon future annexations--and-increasing population, each of the separate systems affected by this order shall have a continuing obligation to provide space for students transferring into the separate system until the ratio of blacks enrolled in the separate system is the same as the ratio of blacks enrolled in all schools in Jefferson County serving the area of the county affected by this order,

(c) If, after the date of this order, any part of the area now under the jurisdiction of the county board is hereafter placed in another school system (whether by annexation of current municipalities having separate school systems, or by the establishment of new school systems by current or future municipalities), the'municipal system shall make sufficient space available- for black students from the county system in such number that, 'added to the number of black students included in the' annexation or the new school zone, equals one-third of the white students included in the annexation or new school zone. This requirement shall only be imposed on municipal systems with a black student percentage less than the percentage of black students then in the county system'. '

(d) The Homewood, Midfield, Pleasant Grove and Vestavia boards shall be required to attain a minimum of 25% black faculty and a minimum of 25% black staff. If further black teachers or staff are required by any of such systems at the time of 'this order,' such systeins must first evaluate any black teachers or staff designated by the county board for possible employment, must then evaluate any black teachers or staff requesting to be employed, and must consider 'new applicants only after fully evaluating the first classes. Any new school systems formed in Jefferson County after this order shall be required to attain the percentage of black faculty and black staff members that exists in the county system at the time of the formation of the new system, and shall offer to retain all teachers and staff assigned to schools at such time- which are to be within the area of the new system.

(Doc. 226, pp. 8-9).

-The September 1971 order contains a provision governing majority-to-minority transfers. The order states:

(a) With the approval of the board of education (or both boards, where between systems) a student may transfer—

(1) from any school which has a 75% or higher- enrollment of students of his own race; -or -.

(2) to any school which hás less than 25% enrollment of students of his . own race; or

(3) - between schools where the effect is to reduce the, difference between the white-to-black student ratios of the two. schools.

Such transfers shall be on a space-available basis; but. the board of education receiving the student shall not be allowed to refuse transfers under this paragraph to students of one race where a greater number of transfers has been allowed by it for students of another race. A certificate showing the Current enrollment of black and white students from the principal of the sending school in (1) and (3) above and from the principal of the receiving school in (2) and (3) above shall accompany the transfer request and be retained by -the board.

(Doc. 226, p. 7) (emphasis in original).

The September 1971 order requires the boards of education affected by the order to file with the Court reports in February and October of each year containing-information concerning the race of students and teachers in each district and transfers. (Doc. 226, pp. 10-11).

June 1972: Wright—Courts may Enjoin Splinter Districts that Have the Effect of Impeding the Process of Dismantling the Parent District’s Segregated Public School System

In Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), the Supreme Court examined a district court’s ability to prevent a municipal separation where, though the student population of the municipal splinter district would be desegregated, the creation of the district would negatively impact the county public school system’s ability to obtain a dissolution of a desegregation order. The circumstances surrounding the constitutional issue in Wright were similar to the circumstances surrounding Gardendale’s attempted separation.

The community of Emporia was dissatisfied with the way in which the county was distributing the proceeds of a sales tax to the public schools in the community. Consequently, in 1967, the community formed the City of Emporia, and the city assumed the responsibility under state law to educate the children living within its municipal boundaries. The city fulfilled this responsibility by implementing a sharing agreement with the county pursuant to which the children in the City of Emporia attended county schools, but the city contributed to the schools’ finances, and the city was involved in selecting the county school superintendent. 407 U.S. at 454-55, 92 S.Ct. 2196.

The county school system had been under federal court oversight since 1965 because the public schools in the county had been segregated by law. After the Supreme Court issued the Green opinion, the private plaintiffs in Wright asked the district court to take additional steps to eliminate the vestiges of segregation from the county’s schools. Two weeks after the district court entered a desegregation order, the city informed the county that the county’s plans for the schools in the city were unacceptable, and the city indicated that it intended to begin operating the schools located within the city. Before making the decision to separate, representatives of the city neither met with representatives of the county to discuss concerns about the court-ordered student assignment plan nor approached the district court. 407 U.S. at 456-57, 92 S.Ct. 2196. When the county refused to cooperate in the separation, the city turned to the state board of education. The state board tabled the request because of the pending federal action. Id. at 457, 92 S.Ct. 2196.

The record demonstrated that under the existing arrangement in which the county schools and city schools were paired, the student population of the school system was 34% white and 66% black. If the city were allowed to separate, the student populations for the city’s schools would be 48% white and 52% black while the student population of the county schools would be 28% white and 72% black. 407 U.S. at 464, 92 S.Ct. 2196. The city had pledged to operate the municipal schools on a unitary basis, combining white and black students at every grade level. The district court enjoined the operation of the city system because the municipal system would frustrate implementation of the county desegregation order. Id. at 457-58, 92 S.Ct. 2196. The Fourth Circuit Court of Appeals reversed, and the Supreme Court accepted the case for review. Id. at 459, 92 S.Ct. 2196.

Much like the Gardendale Board, the City of Emporia argued that because it had the right under state law to create a municipal school system, the district court could enjoin its effort to operate a municipal school system only if the state law that authorized separation was invalid, the municipal boundaries were drawn to exclude black students, or the city committed an independent constitutional violation. 407 U.S. at 459, 92 S.Ct. 2196. The Supreme Court rejected the city’s argument. The Supreme Court held that the constitutional violation pursuant to which the district court could issue an injunction was the county’s operation of a public school system segregated by law, a public school system of which the city “had always been a part.” Id. The Supreme Court stated that because “the city and the county constituted but one unit for the purpose of student assignments during the entire time that the dual system was maintained, they were properly treated as a single unit for the purpose of dismantling that system.” Id. at 459-60, 92 S.Ct. 2196. The Court found that the city’s disagreement with the district court’s plan for a unitary school system prompted the city’s decision to separate, and, “[ujnder these circumstances, the power of the District Court to enjoin Emporia’s withdrawal from that system need not rest upon an independent constitutional violation.” Id. at 459, 92 S.Ct. 2196. The Supreme Court stated that if the proposed separation “would impede the dismantling of the dual system, then a district court, in the exercise of its remedial discretion, may enjoin [the separation] from being carried out.” Id. at 460, 92 S.Ct. 2196.

The Supreme Court also rejected the Fourth Circuit’s proposition that a district court should identify the “dominant purpose” of a municipal separation to determine whether the separation was permissible. The Supreme Court held that such an exercise was “as irrelevant as it [was] fruitless.” 407 U.S. at 462, 92 S.Ct. 2196. The Supreme Court explained that the “existence of a permissible purpose cannot sustain an action that has an impermissible effect.” Id.

The Supreme Court favorably cited appellate decisions in this case and in Lee v. Macon County Board of Education, 448 F.2d 746 (1971), in which the Fifth Circuit held that a district court could not approve a splinter district that would have a substantial adverse effect on the desegregation of the county public school system. 407 U.S. at 462, 92 S.Ct. 2196. The Supreme Court held that these decisions properly focused not on the motivation for or purpose of the separation “but on the effect of the action upon the dismantling of the dual school systems involved.” Id. The Supreme Court stated that if government officials attempted to separate from a district that was attempting to fulfill its obligations under a desegregation order, the effort to separate “must be judged according to whether it hinders or furthers the process of school desegregation.” Id. at 460, 92 S.Ct. 2196.

The Supreme Court provided instructions for the analysis of motions for municipal separations. First, “a court supervising the process of desegregation” does not “exercise its remedial discretion responsibly where it. approves a plan that, in the hope of providing better ‘quality education’ to some children, has a substantial adverse effect upon the quality of education available to others.” 407 U.S, at 463, 92 S.Ct. 2196.

Second, a district court may look beyond the racial statistics offered by the separating school system and consider collateral effects of a municipal separation. In Wright, the district court properly considered the fact that the Emporia school system probably would be more white than the city indicated because white students in private schools in the city probably would enroll in the public school system while the county system would be more black because white students in the county system would withdraw and attend private schools. 407 U.S. at 464-65, 92 S.Ct. 2196. But “£j]ust as racial balance is not required in remedying a dual system, neither- are racial ratios the sole consideration to be taken into account in devising a workable remedy.” Id. at 465, 92 S.Ct. 2196. Therefore, a district court also should consider the quality and siting of the schools in the proposed municipal system, and if the schools within the municipal boundaries were in better condition than the schools that would remain in the county system, then the disparities “may in themselves indicate that enforced racial segregation has been perpetuated.” Id.

Finally, a district court should consider the timing of the decision to separate and the message that separation would send to black students impacted by the proposed separation. 407 U.S. at 465-66, 92 S.Ct. 2196. In Wright, the city decided to break from the bounty following a court order that would have mandated integration of the student bodies of the city’s schools. The Supreme Court stated that “[t]he message of this action, coming when it did, cannot have escaped the Negro children in the county.” Id. at 466, 92 S.Ct. 2196. Relying on “Brown I, the Supreme Court reiterated that separating black children from their white contemporaries ‘“solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’ ” Id. (quoting Brown I, 347 U.S. at 494, 74 S.Ct. 686). The Supreme, Court held that the district court “could rationally have concluded that the same adverse psychological effect was likely to result from Emporia’s withdrawal of its . children from the Greensville County system.” 407 U.S. at 466, 92 S.Ct. 2196. This effect existed even though the city had pledged to operate its schools on a unitary basis.

The Supreme Court conferred on district courts primary responsibility for evaluating all of the relevant factors relating to separation because “[t]he weighing of these factors to determine their effect upon the process of desegregation is a delicate task that is aided by a sensitivity to local conditions,- and the judgment is primarily the responsibility of the district judge.” 407 U.S. at 466, 92 S.Ct. 2196 (citing Brown II, 349 U.S. at 299, 75 S.Ct. 753).

The Supreme Court recognized that in the realm of public education, a desire for local control was understandable: “Direct control over decisions vitally affecting the education of one’s children is a need that is strongly felt in our society .... ” 407 U.S. at 469, 92 S.Ct. 2196, But the Supreme Court' accepted the district court’s finding that city leaders would be able to exert influence over important decisions in the county district without separating. Id. The Supreme Court also recognized the possibility that the city might be able to operate a municipal district after a unitary system in the county had “been established and accepted.” Id. at 470, 92 S.Ct. 2196.

Four justices dissented from the majority opinion in Wright. Those justices concluded that the record before the district court did not indicate that the city’s operation of a separate system would have jeopardized the county’s ability to fulfill its obligations under the desegregation plan. If it had, wrote Chief Justice Burger, he would unhesitatingly have joined in the majority opinion. 407 U.S. at 471-83, 92 S.Ct. 2196 (Burger, C.J., dissenting, joined by Blackmon, Powell, and Rehnquist, JJ.).

August 1972: Gardendale Zone Lines Adjusted

In August 1972, the Court revised the Gardendale, Graysville, and Minor zones based on the Court’s finding that:

[tjhese three zones located in the north-central portion of the county [ ] reflected during the 1971-1972 school year abnormal disparity in the student populations from that which the racial composition of the area would suggest. Two of the schools .,. had student bodies which were 85% and 92% black [ ] by the end of the year while several of the schools were over 85% white.

(August 25, 1972 order, pp. 3-4, cited in Doc. 1, p. 30). The Court noted that it was “mindful of its obligation to see that á plan is adopted which promises realistically a desegregated learning opportunity now.” (Id. at p. 4).

August 1976: Stout II

In 1976, this case made another trip to the Fifth Circuit Court of Appeals.- The Jefferson County Board of Education had been operating under the 1971 Singleton order for nearly five years. The Fifth Circuit-noted that in those five years, “great progress” had been made, “aided by increasing good faith' and mutual confidence on all hands, for which the parties are to be commended.” Stout v. Jefferson Cty. Bd. of Educ., 537 F.2d 800, 801 (5th Cir. 1976).

The issue before the appellate court was narrow. The Fifth Circuit considered whether this Court could leave three schools in the Wenonah feeder pattern segregated by race in light of Judge Pointer’s finding that the Court “could devise no effective remedy” to cure the situation. 537 F.2d at 801, The issue, the Fifth Circuit stated, was “close and troubling.” Id. at 802. Judge Pointer had attempted to assign students from the white school to the two black schools, but the white students had refused to attend the black schools. Moreover, a geographic barrier, “rather than [ ] the segregative act of any authority” was responsible for. the segregation of the schools. Id. The Jefferson County Board of Education had accomplished much of “the uprooting” of its former dual system that the 1971 desegregation order required, and “a unitary system [was] op-erating,” Id.

The Fifth Circuit acknowledged that •Judge Pointer rejected the proposal that the United States put forward for desegregating the Wenonah schools in part because. he feared white flight and a situation that would produce less, not more, desegregation. The Fifth Circuit, noting the deference that it had given Judge- Pointer over the years because of his effective efforts to resolve complex local desegrega- . tion issues, held that Judge Pointer could take white flight into account when choosing between alternative “permissible plans.” 537 F.2d at 802 (“We have found no authority declaring that in choosing between various permissible plans a chancellor may not elect one calculated to minimize white boycotts.”)- The Fifth Circuit stated, “[i]n so concluding, our guiding lights are the trial court’s conclusions, that the Jefferson County system has been effectively desegregated and is unitary and that these three one-race schools are the products of geography and demography alone.” Id. at 803.

In other words, although the three schools at issue were racially identifiable, the student populations of other schools in the Jefferson County system were desegregated. The Fifth Circuit recognized that the extent of desegregation was limited “as a matter of practicality” because “well over four thousand white students reside in the predominantly white neighborhoods east of Shades Mountain,” 537 F.2d at 802 n. 1; however, the Fifth Circuit noted that the Constitution does not require racial quotas or racial balancing at each of the schools in a district. Id. at 803. “ ‘[A] balance must be reached, one unquestionably subtle in its implications: while school system segregation must be actively disestablished, racial quotas for student population are not to be instituted.’” Id. (quoting Carr v. Montgomery Cty. Bd. of Educ., 377 F.Supp. 1123, 1133 (M.D. Ala. 1974)).

Throughout the Stout I