case 5:63-cv-00109-mhh document 297 filed …media.al.com/breaking/other/297-main.pdfcase...

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

SONNIE WELLINGTON HEREFORD, ) IV, et al., ) ) PLAINTIFFS, ) NO. 5:63-cv-00109-MHH ) and ) ) UNITED STATES OF AMERICA, ) ) ) PLAINTIFF-INTERVENOR, ) ) V. ) ) HUNTSVILLE BOARD OF ) EDUCATION, et al., ) ) DEFENDANTS. )

BRIEF OF PLAINTIFFS REGARDING MOTION OF DEFENDANTS FOR APPROVAL OF DEFENDANTS’ STUDENT ASSIGNMENT PLAN

Pursuant to this Court’s authorization (Doc. 283), Plaintiffs

respectfully submit this Brief respecting the Defendants’ Motion for

Approval of [their] Student Assignment Plan (Doc. 281). As explained in

greater detail below, Plaintiffs urge the Court to grant the Defendants’

Motion (Doc. 287).

FILED 2014 Mar-10 PM 06:29U.S. DISTRICT COURT

N.D. OF ALABAMA

Case 5:63-cv-00109-MHH Document 297 Filed 03/10/14 of 32

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Relevant Factual Background

This school desegregation case has been pending since 1963. Over

that period of time, the record reflects numerous instances in which the

parties, through their counsel, have worked together cooperatively to

respond to legal and factual developments in a manner consistent with the

remedial obligations of the school system to eliminate the vestiges of its

original de jure segregation under Alabama law.1 More recently, following

the hiring of a new Superintendent of Schools in the summer of 2011,

Defendants notified the other parties that the school district wished to work

1 For example, in 2003, the parties jointly moved that the Court authorize the district to limit transfers required to be made available under the “No Child Left Behind Act” of 2001 to avoid undermining its desegregation obligations. See Exhibit “1” hereto. This Court found “that the transfer obligations imposed on the District by the Act are in conflict with the transfer guidelines and desegregation orders entered by this Court” and therefore determined “to limit the transfer choices in a manner consistent with its longstanding desegregation orders,” see Exhibit “2” hereto, at 1, 2; see also United States v. Georgia (Meriwether County Bd. of Educ.), No. 1-69-cv-12972-RLV (N.D. Ga. Oct. 5, 2005), attached hereto as Exhibit “3.” In 2008, following an earlier round of school closings to reduce operating expenses by the Defendants, the parties negotiated an agreement approved by this Court that, inter alia, provided for the construction on sites to be determined by agreement, or by the Court if agreement could not be reached, of new facilities for the then-existing University Place and Terry Heights elementary schools (whose attendance zones had been combined), and for the then-existing Lincoln and Martin Luther King, Jr. elementary schools (whose attendance zones had been combined) as well as for construction on the site of the Blossomwood facility for the then-existing Blossomwood and East Clinton elementary schools (whose attendance zones had been combined) (Docs. 264, 266). Specific locations for the University Place/Terry Heights and Lincoln/ Martin Luther King, Jr. replacement schools were included within the Unopposed Motion of Defendants for Approval of School Construction Program that this Court granted on May 17, 2013 (see Docs. 279, 280).


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with the plaintiff parties to determine what steps would be necessary for the

district to meet the legal requirements for a declaration of “unitary status”

and ultimately to have this action dismissed.

Defendants agreed to provide data or other information that plaintiff

parties might seek, in connection with that effort, upon request rather than

through formal discovery, and there have since been numerous such

requests, as well as conference calls among counsel relating to that subject.

In-person negotiations among counsel were held in Washington, D.C. in

April, 2013 and in New York City in August, 2013. In the meantime, the

parties reached agreements dealing with a variety of specific discrete matters

similar to those to which reference was made supra note 1.2

The Construction Motion

Of particular relevance to the issues currently before the Court,

counsel for plaintiff parties became aware in the summer of 2012 of a five-

year capital building plan presented to the Board of Education on September

2 See, for example, Docs. 269, 270 (reassignment of middle school students from Providence to Williams); Docs. 272, 272-1, 273 (method of administering transfers to effectuate priority for majority-to-minority transfers required by earlier orders). In February, 2012 the parties agreed informally (that is, through exchange of letters and/or e-mails among counsel) to the relocation of New Century Technology High School from the Columbia High School Campus to the Lee High School campus; and to consolidation of the elementary and middle school facilities at the Chapman, Whitesburg and Mountain Gap campuses so as to create unified K-8 or P-8 schools at each site.


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4, 2012 and adopted by the Board at that time.3 Although the parties

continued to confer and to exchange views and data on a wide variety of

subjects, it was not until mid-March, 2013 that Defendants formally

presented their specific construction plans.4 Counsel for the plaintiff parties

sought comprehensive written information about those plans, and the

discussions among counsel thereafter included school construction as well as

other matters relevant to unitary status.

The subject in fact took on increased urgency after Defendants

advised that they needed to obtain approval by this Court of any new

construction package in time for initial construction to commence in the

summer of 2013 in order to avoid potential arbitrage penalties under the

3 An excerpt from the Summary Capital Plan (one of two documents available on the Board’s website as supporting data for that agenda item) is attached hereto as Exhibit “4.” 4 The continuity of the parties’ negotiations was, unfortunately, punctuated by delays due to wholly unanticipated events. At the end of September, 2012, tragic events in the immediate family of lead counsel for Defendants put discussions among the parties in abeyance for nearly a month. After a conference call among counsel was scheduled for a date just before Thanksgiving, 2012 to review plaintiff parties’ concerns about data that had been produced by Defendants in the informal request process, Defendants’ counsel asked in an e-mail that the agenda for the call be enlarged to include “plans to build a new Grissom High School and a new Johnson High School.” The subject was not reached at that time, however, and it was not until March 1, 2013, in a telephone conference with the Superintendent of Schools and counsel for plaintiff parties (from which lead counsel for Defendants was absent because was experiencing serious health issues), that the plaintiff parties received confirmation of the school district’s intentions regarding school construction.


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Internal Revenue Code and implementing regulations,5 in effect establishing

a deadline for reaching agreement on a construction package or proceeding

to litigation.

The parties ultimately reached agreement, embodied in the

Unopposed Motion of Defendants for Approval of School Construction

Program (“Construction Motion”) that was granted by this Court on May 17,

2013 (Docs. 279, 280). That Motion:

* specified the locations of seven new facilities, the grades that

each would serve, and the anticipated dates of opening for each school;

* committed Defendants to relocate the existing Academy for

Arts magnet school to an existing middle school facility that would be

renovated for this purpose; and

* committed Defendants to assess facility needs at a second

existing magnet school (the Academy for Science and Foreign Language,

which has an International Baccalaureate (IB) program), to seek to identify 5 See 26 U.S.C. § 148 (2012); 26 C.F.R. § 1-148-10(a)(4) (“An action overburdens the tax-exempt bond market under paragraph (a)(2)(ii) of this section if it results in issuing more bonds, issuing bonds earlier, or allowing bonds to remain outstanding longer than is otherwise reasonably necessary to accomplish the governmental purposes of the bonds, based on all the facts and circumstances. Whether an action is reasonably necessary to accomplish the governmental purposes of the bonds depends on whether the primary purpose of the transaction is a bona fide governmental purpose (e.g., an issue of refunding bonds to achieve a debt service restructuring that would be issued independent of any arbitrage benefit”)). In the case of capital construction projects the regulations establish generally applicable three- or five-year periods as “safe harbors” during which funds raised from the sale of tax-exempt bonds may be invested before being committed to construction without triggering arbitrage penalties, see 26 C.F.R. § 1-148-2(e)(2).


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available funds for its renovation or relocation, and also to offer pupils

completing the terminal grade at the facility the opportunity to transfer to

Columbia High School to continue in the IB program if they so desire.

The total cost of the contemplated construction program was

projected at $196 million. Among the most important sources of funding

anticipated for this construction were the proceeds of tax-exempt bond sales

by the Alabama Public School and College Authority pursuant to Act 2210-

551 (codified as Chapter 16A, Title 16 of the Alabama Code),6 $55 million

from bond sales by the City of Huntsville in 2011 and made available to the

school district, and $74 million from the proceeds of bonds anticipated to be

sold in 2014 by the City of Huntsville for the benefit of the school district.

Because the construction timetable proposed by Defendants placed the

new Martin Luther King, Jr. Elementary School (MLK) facility at the end of

6 This legislation was based on findings that “[a]s a result of the 2005 [federal] B[ase] R[Realignment] A[nd] C[losure program] and anticipated future base realignment and closure activities, Madison County and North Alabama have and are expected to experience significant growth which demands modernizing and expanding the infrastructure for schools, and school related capital projects, in the areas impacted by the growth at Redstone Arsenal,” Ala. Code § 16-16A-1, and that “the number of students attending the several school systems located in those areas of North Alabama that will be directly impacted by the 2005 BRAC and Subsequent BRAC Actions will collectively increase by an estimated 9,000 students. As a result, there will be a need for the construction of additional school facilities as well as the renovation of existing school facilities. . . .,” Ala. Code § 16-16A-7(a). Act 2210-551 authorized issuance of up to $175 million in bonds that could be distributed to affected school districts to support capital construction, Ala. Code §§ 16-16A-7(b), 16-16A-7(b)(1). The Huntsville City Schools received bond proceeds for these purposes totaling $64.7 million.


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the list, with construction anticipated to be completed by the commencement

of the 2018-19 school year (which would be a decade after the parties’

agreement on this project that was included in the 2008 order entered by this

Court, see supra note 1; Docs. 264, 266), class counsel undertook a

comprehensive examination of the sources of funding upon which the

Defendants expected to draw. This review included researching the relevant

arbitrage issues and reviewing the City of Huntsville’s annual budget

projection and financial statements available on line, following which class

counsel then requested additional specific information about anticipated

interest rates, yields, fiscal capacity, debt service obligations, etc., in order to

satisfy himself that the projected revenue stream was sufficiently reliable to

avoid its depletion prior to reaching, and finishing, the MLK project. Only

after that inquiry did class counsel agree to the Construction Motion.

Renewed Discussions of “Unitary Status”

Following the Court’s approval of the Construction Motion, counsel

for all parties met in person in New York City and resumed their

negotiations and information-gathering relevant to Defendants’ desire to

establish its entitlement to an ultimate declaration of “unitary status” from

the Court. Plaintiff parties’ counsel were furnished with enormous

quantities of documents and data in response to their information requests,


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analyzed them, and sought to clarify problems requiring revisions,

corrections, etc. This involved numerous telephone conferences and e-mail

exchanges regarding Defendants’ proposals for student assignments to the

facilities of the school district (including those to be built pursuant to the

Construction Motion), as well as consideration of a wide variety of other

subjects.

In addition, Defendants included discussion of their proposed

attendance zones (to be phased in as the new facilities covered by the

Construction Motion were completed) on the agenda for the parties’ August,

2013 meeting in New York City. Thereafter, in September, 2013 the United

States retained a demographer to develop alternatives to the school system’s

proposals and arranged for one of its attorneys to make a site visit to

Huntsville that month along with its expert. Unfortunately, the parties’

consultations were interrupted in October, 2013 for several weeks due to the

federal government shutdown caused by lack of funding and the consequent

furloughs of DOJ staff.

The United States transmitted a proposed alternative student

assignment/attendance zone plan to the other parties on December 31, 2013

and in January, 2014 provided data files in the format (shape files) requested

by Defendants; the parties’ counsel had telephone conference discussions on


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January 14 and with increasing frequency thereafter, including nearly daily

contacts during the last week to ten days of January.

Defendants’ counsel informed the other parties that the school district

needed to commence construction as early as possible in 2014 in order to

avoid arbitrage penalties and identified the end of January, 2014 as the

deadline for reaching agreement. When the parties’ counsel were ultimately

unable to resolve successfully, by that date, the many issues under

discussion (including student assignments), Defendants submitted the

Motion for Approval of their Student Assignment Plan that is now before

this Court, to which private plaintiffs, through class counsel, do not object.

ARGUMENT

I

The Role of Class Counsel in School Desegregation Proceedings This lawsuit was filed in 1963 by a group of Black children (suing by

their parents or guardians) on behalf of the class of such children in

Huntsville, seeking admission to schools operated, prior to the Supreme

Court’s decision in Brown v. Bd. of Educ., 347 U.S. 483 (1954), for non-

Black students only, and from which they were still being excluded, as a

matter of practice, by the Huntsville City Schools. As the Fifth Circuit

recognized that same year in Potts v. Flax, 313 F.2d 284, 289 n.5, (5th Cir.


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1963),7

a school segregation suit presents more than a claim of invidious discrimination to individuals by reason of a universal policy of segregation. It involves a discrimination against a class as a class, and this is assuredly appropriate for class relief. Bush v. Orleans Parish School Board, 5 Cir., 1962, 308 F.2d 491, 499, modified on rehearing, 308 F.2d 503. See also Ross v. Dyer, 5 Cir., 1962, 312 F.2d 191.

The Court observed in Potts that in such a lawsuit,

[b]y the very nature of the controversy, the attack is on the unconstitutional practice of racial discrimination. Once that is found to exist, the Court must order that it be discontinued. Such a decree, of course, might name the successful plaintiff as the party not to be discriminated against. But that decree may not — either expressly or impliedly — affirmatively authorize continued discrimination by reason of race against others (citations omitted).

Thus, even though no order formally certifying the matter as a class action

may have been entered herein, this case has consistently been recognized

and treated as such.8

7 “[D]ecisions of the United States Court of Appeals for the Fifth Circuit (the ‘former Fifth’ or the ‘old Fifth’), as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.” Bonner v. City of Prichard, 661 F.2d 1206, 1207 (1981) (en banc). 8 The requirement for such an order now included in FED. R. CIV. P. 23 was not adopted until Rule 23 was amended in 1966 — and that amendment was not required to be given retroactive effect in pending cases. See Memorandum and Order, Kelley v. Metro. County Bd. of Ed., Civ. Nos. 2094, 2956 (M.D. Tenn. July 21, 1971), reprinted at 463 F.2d 748, 749-50, aff’d on basis of district court order, 463 F.2d 732, 743 (6th Cir.), cert. denied, 409 U.S. 1001 (1972). The Fifth and Eleventh Circuits have applied an analogous principle even where the school desegregation case was filed after the 1966 amendments took effect when it was clear from the record that the case had consistently


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The nature of the decrees entered by this Court confirm its class action

status. For example, on September 2, 1970, the Court required a series of

system-wide changes affecting all students and all schools operated by the

Defendants, including preparation of a plan “for a unitary school system not

based on race” Order at 1, ¶ 1, and directing that “the school system be

enjoined from operating a system of dual overlapping zones for assigning

students of each race to schools,” id. at 2 ¶ 2 (emphasis added). That Order

also required that Defendants’ school district implement the uniform policies

and standards — all of which were applicable on a system-wide basis — that

had recently been adopted by the Fifth Circuit.9

In these suits, the law places special responsibility upon counsel for

class plaintiffs to protect the interests of the class as a whole. Indeed, Rule

23 was amended in 2003 to require a court certifying a class action to

appoint class counsel, taking into account, inter alia, “[proposed] counsel’s

experience in handling class actions, other complex litigation, and the types

of claims asserted in the action,” “knowledge of the applicable law,” and been treated as a class suit. Graves v. Walton Cnty. Bd. of Ed., 686 F.2d 1135, 1139-40 (5th Cir. Unit B 1982). (Decisions by a Unit B panel of the former Fifth Circuit issued after October 1, 1981 are binding precedent in the Eleventh Circuit. Jefferson v. Hall, 530 F.3d 1283, 1300 n.6 (11th Cir. 2010), citing Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).) 9 Singleton v. Jackson Mun. Separate Sch. Dist., 419 F.2d 1211 (5th Cir. 1969), rev’d in part on other grounds sub nom. Carter v. West Feliciana Parish Sch. Bd., 396 U.S. 290 (1970) and cert. denied, 396 U.S. 1032 (1970). See also Hall v. St. Helena Parish Sch. Bd., 417 F.2d 801 (5th Cir.). cert. denied, 396 U.S. 904 (1969).


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“any other matter pertinent to counsel’s ability to fairly and adequately

represent the interests of the class.” FED. R. CIV. P. 23(g)(1)(A)(ii),

(g)(1)(A)(iii), (g)(1)(B). Additionally, the 2003 amendments define the duty

of class counsel as being to “fairly and adequately represent the interests of

the class,” FED. R. CIV. P. 23(g)(4). The Advisory Committee Notes

unequivocally delineate the contours of that responsibility:

Paragraph 1(B) recognizes that the primary responsibility of class counsel, resulting from appointment as class counsel, is to represent the best interests of the class. The rule thus establishes the obligation of class counsel, an obligation that may be different from the customary obligations of counsel to individual clients. Appointment as class counsel means that the primary obligation of counsel is to the class rather than to any individual members of it. The class representatives do not have an unfettered right to “fire” class counsel. In the same vein, the class representatives cannot command class counsel to accept or reject a settlement proposal. To the contrary, class counsel must determine whether seeking the court's approval of a settlement would be in the best interests of the class as a whole.

28 U.S.C. APPENDIX, FEDERAL RULES OF CIVIL PROCEDURE, RULE 23, at 163 (2012). 10

10 See, e.g., Parker v. Anderson, 667 F.2d 1204 (5th Cir. Unit A 1982) (affirming approval of class action settlement “granted over the objection of all but one of the eleven named plaintiffs as well as over the objections of a number of class plaintiffs,” id. at 1207, since “[t]he duty owed by class counsel is to the entire class and is not dependent on the special desires of the named plaintiffs,” id. at 1211 (citing cases)); accord McReynolds v. Richards-Cantave, 588 F.3d 790, 802 (2d Cir. 2009); County of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1428, 1435 (E.D.N.Y. 1989) (“In light of her fiduciary responsibility to the class, counsel was under a duty to ignore any special interest of the objecting class representatives in favor of the overall, general interest of the class as a whole.”), aff’d in pertinent part, 907 F.2d 1295, 1325 (2d Cir. 1990).


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Consistent with these developments, federal courts handling class

action suits give substantial weight to the opinions of qualified class counsel

when considering whether to approve settlements, including in school

desegregation cases.11

This principle has especial salience when courts are reviewing

settlements in class actions, but as a matter of logic and judicial policy is

equally applicable to the present circumstances, involving class counsel’s

decision not to object to a particular student assignment plan that does not

terminate the litigation and could be subject to future modification by the

parties or the Court after the results of its implementation are assessed. Cf.

Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 921 F.2d 1371,

1387 (8th Cir. 1990) (approving parties’ settlement of complex inter-district

desegregation action including provisions for continued monitoring and

endorsing power of district court to make future modification of terms “[i]f

11 See, e.g., United States v. Texas Ed. Agency, 679 F.2d 1104, 1108 (5th Cir. 1982) (“the record before us reflects that the case was vigorously and ably contested by competent counsel on both sides before the district court; there is no hint that the settlement has been motivated by any improper considerations or at the expense of unrepresented persons, and it appears to have been arrived at after mature, deliberate and informed consideration on both sides . . . Nor, in the circumstances of this case, is there any reason for us to substitute our ‘own judgment as to optimal settlement terms for the judgment of the litigants and their counsel.’ Armstrong v. Board of Sch. Dirs., 616 F.2d 305, 315 (7th Cir. 1980)).”


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progress towards [plan’s] goal is clearly insufficient”), id. at 1388 (strong

public policy favoring settlement of class actions, citing Armstrong, supra

note 11; Local No. 93, Int’l Assn. of Firefighters v. City of Cleveland, 478

U.S. 501, 529-30 (1986) (approving consent decree that imposed no

obligations upon union which objected to its approval but never moved to

intervene, or to raise substantive claims against parties to the agreement,

while leaving to trial court on remand the determination whether it was too

late for union to raise Fourteenth Amendment or contractual claims

concerning the consent decree, if it sought party status to do so).

These considerations have shaped the performance of undersigned

class counsel in this case with respect to the student assignment plan

submitted by Defendants to this Court on February 7, 2014 (Doc. 281).12

12 Counsel for plaintiffs in this matter has been involved actively in school desegregation litigation for more than 45 years and keeps abreast of new developments and court decisions on a regular basis. He also recognizes the obligation of attorneys to limit the claims they raise to those having support in existing law, or as to which there is a nonfrivolous for extending or modifying existing law, see FED. R. CIV. P. 11(b)(2). Consistent with that obligation, counsel for plaintiffs has explained on a number of occasions to individuals in Huntsville with whom he has spoken, that some issues of great concern to many African-American parents, students, and residents simply are not cognizable in a school desegregation lawsuit. For example, there is substantial opposition from many in the community, (including from the J.O. Johnson High School Alumni Association) to the decision of Defendants not to retain the Johnson name for the new high school to be constructed on Pulaski Pike (see Doc. 279, at 2 ¶ 1), as well as to the manner in which Defendants made that decision. However, plaintiffs’ counsel is not aware of desegregation cases in which a federal court granted relief on such matters. Also, in his experience, he has sometimes been asked to seek, as part of the remedy in desegregation cases, the assignment of greater proportions of minority faculty and staff to schools with predominantly minority student bodies, and has explained that in the current


15

Plaintiffs’ counsel has sought to address issues and resolve

disagreements among the parties through negotiations and compromise

wherever possible; in his experience negotiated resolutions are usually

implemented more successfully in these suits than litigated decrees.13 The

record in this matter reflects this practice, even though here, the parties’

most recent efforts in this direction did not succeed in producing an

agreement. Finally, counsel complies with FED. R. EVID. 408(a)(2)’s

prohibition against disclosure of the content of successful or unsuccessful

compromise negotiations.14

state of the law, only the Supreme Court can alter the existing body of precedent that holds such assignments to be impermissible, e.g., Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 (1977) (hiring and assignment); Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 275-76 (1986) (layoffs). 13 See, e.g., Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 921 F.2d at 1383 (“a remedy that everyone agrees to is a lot more likely to succeed than one to which defendants must be dragged kicking and screaming”); accord United States v. Jackson, 519 F.2d 1147, 1152 (5th Cir. 1975). 14 As the Advisory Committee Notes to the 2006 amendments to the Rule indicate, “The amendment makes clear that Rule 408 excludes compromise evidence even when a party seeks to admit its own settlement offer or statements made in settlement negotiations. If a party were to reveal its own statement or offer, this could itself reveal the fact that the adversary entered into settlement negotiations. The protections of Rule 408 cannot be waived unilaterally because the Rule, by definition, protects both parties from having the fact of negotiation disclosed to the jury. Moreover, proof of statements and offers made in settlement would often have to be made through the testimony of attorneys, leading to the risks and costs of disqualification. See generally Pierce v. F.R. Tripler & Co., 955 F.2d 820, 828 (2d Cir. 1992) (settlement offers are excluded under Rule 408 even if it is the offeror who seeks to admit them; noting that the “widespread admissibility of the substance of settlement offers could bring with


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Consistent with all of these considerations, the decision of class

counsel not to object, on behalf of the plaintiff class, to the Student

Assignment Plan described in the February 7, 2014 filing by Defendants

(Doc. 281), was based solely upon his assessment of the contents of that

filing.15

When class counsel studied the February 7, 2014 document he

concluded, as described more fully below, that taken together, the various

elements of the “Student Assignment Plan” provide very substantial benefits

for the plaintiff class. It is possible that these ingredients were included by

Defendants in the plan because there had been general discussion of similar

concepts during the negotiating meetings, but that possibility is irrelevant to

the ultimate conclusions of class counsel — because the touchstone of his

responsibility is solely furthering the interests of the class, without regard for

which “side” or individual may have suggested a particular feature.

it a rash of motions for disqualification of a party’s chosen counsel who would likely become a witness at trial”). 28 U.S.C. APPENDIX, FEDERAL RULES OF EVIDENCE, RULE 408, at 370 (2012). 15 When the parties’ negotiations/conversations concluded at the end of January, 2014 because of the Defendants’ stated position that they could not further delay commencement of the construction projects identified in the Unopposed Motion of May 17, 2013 (Doc. 217), no agreements had been reached. While class counsel was cognizant of maps, verbal descriptions, comments and charts presented or discussed at school board meetings he had viewed, or described in the Huntsville Times (which he has regularly followed on line), he understood that Defendants and their counsel were not bound by what was previously said either in the parties’ meetings, or in public fora.


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II

Defendants’ Student Assignment Plan Meets Applicable Constitutional Standards and Provides Significant Benefits

to The Class on Whose Behalf This Case Was Brought

It is important to recognize that Defendants’ Student Assignment Plan

is not merely a set of attendance zone boundaries for existing schools and for

facilities to be constructed over the next five years. The Plan incorporates a

wide variety of commitments to actions such as: retaining the services of

consultants with expertise in specific program/curricular specialties to make

recommendations to Defendants (that will be shared with counsel for the

other parties) for strengthening course offerings, and attracting additional

enrollment of diverse groups of students in the school system’s magnet

schools or programs — existing and to be newly developed — as well as in

advanced level courses to be offered at all schools, including those with

predominantly African-American enrollment reflective of the dominant

residential character of the areas in which they are located.

These steps, in addition to other policies contained in the Plan, for

example the provision of transportation to pupils formerly assigned to Butler

High School who under the Plan will attend the new Jemison High but live

more than two miles from that school’s location, in areas of relative poverty

and who may therefore lack access to reliable means of transportation to get


18

to school regularly, and the expansion of International Baccalaureate study

options throughout the district, have great merit and evidence Defendants’

good faith. See supra note 13 and accompanying text.

The commitment in the Student Assignment Plan to provide

transportation to students formerly attending Butler High School who will be

assigned to Jemison and live more than two miles from the Jemison site is

particularly significant, in class counsel’s view. Alabama law allows, but

does not require, city school systems to provide bus transportation for

students, Ala. Code §§ 16-11-14, 16-11-15, though it prescribes safety and

other standards for school systems that choose to provide transportation, see

Ala. Code §§ 16-27-1 to 16-27-8, and provides reimbursement from the

State’s Foundation Program Fund to such districts for pupils who are not

disabled and who live more than two miles from the school to which they

are assigned, Ala. Code §16-13-233.

Defendants’ established policy is to provide transportation for high

school students (other than disabled pupils) who live more than five miles

from school. This is a particularly significant hardship for impoverished

families in the district who may not own multiple vehicles or be able to

make alternative arrangements for students in their families to drive

themselves to classes. No one disputes that areas formerly zoned to Butler


19

High School that would be reassigned to Jemison under the Student

Assignment Plan contain many such families.16

The inclusion in the Student Assignment Plan of transportation for

these pupils is especially critical: at a minimum, it is extremely doubtful

whether the Court could order Defendants to provide such transportation

since (a) this Court has held that transportation was unnecessary to

disestablish the dual system,17 (b) the school district’s five-mile walk

distance for high school students applies to and affects white and African-

American pupils equally, see Quarles v. Oxford Mun. Separate Sch. Dist.,

487 F.2d 824 (5th Cir. 1973), reh’g and reh’g en banc denied, 489 F.2d

1312 (5th Cir. 1974), and (c) there is no other viable Equal Protection Clause

claim for free transportation to public schools, see Kadrmas v. Dickinson

Pub. Sch., 487 U.S. 450, 458-62 (1988); see especially id. at 462 (“The

Constitution does not require that [bus] service be provided at all, and it is

difficult to imagine why choosing the service should entail a constitutional

16 As this Court has recognized, these areas include historic African-American communities and multiple public housing projects occupied by impoverished families. See Order of August 14, 1974 herein, attached hereto as Exhibit “5,” at 3 ¶ 3, 4 ¶ 5. 17 See Ex. “5” hereto, at 5, ¶¶ 9 (Terry Heights, Montview, University Place, Highlands and Madison Pike elementary schools “are already well integrated and constitute a part of a system under a desegregation plan which is working”), 10 (“In the Huntsville school system, the neighborhood zone is the appropriate basis for determining public school assignments”), 11 (“No children who live in the Cavalry Hill School attendance zone or in the Terry Heights School zone will be deprived of their constitutional rights by the continuation of a neighborhood school plan”).


20

obligation to offer it for free”). Under these circumstances, the

“Transportation Agreement” set forth in Exhibit “D” to the Motion . . . for

Approval of Defendants’ Student Assignment Plan (Doc. 281, at 71)

provides very substantial benefit to members of the plaintiff class that would

otherwise be unavailable to them.

In weighing that benefit, class counsel also took account of the fact

that the United States itself has presented to the other parties a student

assignment plan that would rezone students formerly assigned to Butler

High School to a school equally or more distant from their residential area

than is Jemison. Specifically, the United States’ Response and Objections

suggests, referencing the Defendants’ Student Assignment Plan, that “Space

could be made for students to continue from University Place to Huntsville

Middle and on to Huntsville High” (Doc. 287, at 22). While the United

States has not provided maps for its Response and Objections proposal, this

language, together with consideration of the color-coded, hard-copy maps

from Defendants’ Student Assignment Plan that were mailed to the Court

and all counsel on February 12, 2014, leads class counsel to infer that the

United States is suggesting assignment to Huntsville High School and

Middle School of the same area of the former Butler zone that Defendants’

Student Assignment Plan moves to Jemison and McNair.


21

Class counsel therefore has taken informal measurements, by ruler, of

the direct distance (straight-line, without any attempt to plot actual walk

routes around major thoroughfares, etc.) on those maps between points

within that area that are furthest from, respectively, the Jemison location and

that of Huntsville High School. Such maximum distances were, under this

rough measurement technique, actually greater to Huntsville High School

than to the Jemison site.

The point of this exercise is not rhetorical — it is to emphasize why

Defendants’ voluntary proposal for transportation of pupils who will be most

affected by reassignment is of enormous importance in light of the teaching

of Quarles and Kadrmas that this Court could not require Defendants to

provide school transportation, even were it to accept the government’s

suggestions.

These features of the Student Assignment Plan will have direct,

positive impact for the members of the class, especially in the context of the

overarching commitment to provide modern, well-equipped newly

constructed facilities in areas of the school district where large numbers of

class members and their families reside. It bears emphasis, as well, that the

Student Assignment Plan is not a terminal order in this longstanding

litigation. Defendants have not, at this juncture, moved for a declaration of


22

full or partial unitary status, and the Student Assignment Plan specifically

provides for implementation reports to the plaintiff parties on the execution

of the Plan. Nothing in the Plan, nor its approval by this Court, can be

expected to interfere with the resumption of the parties’ discussions about

other matters that have been the subject of discussions and written or

electronic exchanges of views over the past several years. In sum, if despite

the best efforts of the consultants and the staff of the district, problems

remain to be dealt with after the steps contained in the Student Assignment

Plan have been implemented, the plaintiffs or the United States remain free

to seek the assistance of the Court in moving forward.

Finally, Plaintiffs’ counsel is satisfied that the Student Assignment

Plan meets Defendants’ constitutional obligations in the circumstances of

this long-running matter. Especially in light of the growth of the City of

Huntsville and its population, the mobility of its citizens and the

enlargement of its territory, as well as the passage of more than four decades

since effective system-wide desegregation was required by this Court and

implemented, there is nothing about the Student Assignment Plan that could

remotely be characterized as taking even the tiniest step toward effecting

“the recurrence of the dual school structure,” Order of September 2, 1970


23

herein, at 6 ¶ (c) (copy attached hereto as Exhibit “5”). Cf. Freeman v. Pitts,

503 U.S. 467, 491, 496 (1992):

As the de jure violation becomes more remote in time and [ ] demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system. The causal link between current conditions and the prior violation is even more attenuated if the school district has demonstrated its good faith. . . . [W]ith the passage of time, the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish, and the practicability and efficacy of various remedies can be evaluated with more precision.

The supporting arguments and citations contained in the United States’

Response and Objections do not undermine this conclusion, a subject to

which class counsel now turns.

III

Both the Relevant Facts and the Applicable Law Which

Govern the Issues Before the Court in this Case Support Approval of the Defendants’ Student Assignment Plan

Forty years ago this Court characterized the Huntsville school system

as “well integrated” (specifically referring in its statement to one school,

Terry Heights Elementary, that had been heavily impacted by “white


24

flight”), and rejected a proposed “clustering” remedy as unnecessary.18

Subsequently, this Court acted in 1984 to ensure the success of a magnet

program developed by the school board at Cavalry Hill Elementary School

(located in the same area as Terry Heights), to ensure “that this proposal

does not result in the resegregation of the black students within the [then]

existing Cavalry Hill-Montview-Highlands-University Place cluster.” Order

of June 4, 1984 herein, at 1.19 In accompanying Findings of Fact issued the

same date, the Court

f[ound] and conclude[d] that, with the additions and modifications mandated in the order entered contemporaneously herewith, the plan of desegregation proposed by the Huntsville Board of Education should be approved. With these modifications, the plan meets the appropriate standards for a school desegregation case already in its third decade. In fact, the Court has never held that substantial vestiges of the prior dual

system persisted after 1974.

In 1988, the United States and Defendants filed a joint motion with

the Court “seeking approval of a proposed magnet program to be housed at

the Davis Hills school site.” Findings of Fact and Conclusions of Law

18 See Exhibit “5” hereto, at 3-4 ¶ 4, 5 ¶ 9. 19 A copy of that Order and the Court’s accompanying Findings of Fact is attached hereto as Exhibit “6”.


25

entered July 1, 1988 herein, at 1.20 This Court found that

Davis Hills has experienced a declining enrollment and white to non-white (black) ratio . . . from 86% white in 1970 to 21% white in 1988. A magnet program at Davis Hills would benefit both the school and community. . . . The Huntsville City Board of Education opened its first magnet school in 1984 to replace a cluster school that had existed since 1974 and was not attracting a desirable white to non-white ratio. This school, the Academy for Academics and Arts located on the Cavalry Hill School campus, has maintained an enrollment of 400 students and white to non-white ratio of 70%/30%, and has received national recognition for its academic success. The administration and Board of Education of the Huntsville City Schools believe this success can be replicated with a science and foreign language school at Davis Hills. The Court finds and concludes that the magnet program at the Davis Hills school site should be approved.21 In its accompanying Order on the same date, the Court directed: 2. This magnet school shall be a feeder program for the Space Science and International Education Program already in existence at Johnson High School. Thus, on the record in this case, Defendants have a history of undertaking,

voluntarily, measures to preserve, protect, and expand desegregated schools

in their system.

20 Plaintiffs’ counsel did not appear before the Court but consented in writing to the motion. Id. 21 Findings of Fact and Conclusions of Law herein, entered July 1, 1988, at 2-3, attached hereto as Exhibit “7”.


26

In its Response and Objections, the United States suggests that

One possible avenue for the District to further desegregation through its Plan would be to expand its move toward pre-K through 6th grade elementary schools. . . . Converting schools in the Huntsville Middle School . . . and Huntsville High School . . . Blossomwood . . . Monte Sano . . . and Jones Valley . . . [feeder pattern] to pre-K through 6th grade schools would allow the District to further desegregation within that feeder pattern Response and Objections, at 21 (enrollment percentages omitted). As early

as 1984, however, the Eleventh Circuit cautioned that such remedies require

a compelling justification:

The plaintiffs' first objection to the proposed plan is that the Board had available alternative options that would have led to greater desegregation than that achieved by the plan ultimately adopted. In support, they point to several options outlined in the Owenby Report: (1) adopting a kindergarten through 8th grade plan and abolishing junior high school . . . Even assuming that these plans would achieve greater desegregation, which is not clear from the record, they do not lead to a conclusion that the district court abused its discretion in approving the Board's plan. The first option, adopting a kindergarten through eighth grade plan, would constitute a significant intrusion into the educational policymaking powers of the School Board. Where, as here, the Board has acted in good faith and has actively sought to desegregate the school system, a federal court would be unjustified in imposing such a drastic measure on the local authorities. Milliken, 433 U.S. at 280-81 . . . . The Supreme Court cautioned against such actions in Swann . . . . The district court found and the record makes evident that the local authorities have not defaulted on their obligation to pursue a unitary school system. Lee v. Anniston City Sch. Sys., 737 F.2d 952, 956 (11th Cir. 1984).


27

Freeman v. Pitts, see supra page 23, is particularly instructive with

respect to the need to disentangle shifts in the racial composition of schools

caused by forces beyond the ability of school officials to influence, to say

nothing of control, from intentional misconduct:

The essence of a court’s equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action. . . . Our application of these guiding principles in Pasadena Bd. of Education v. Spangler, 427 U. S. 424 (1976), is instructive. There we held that a District Court exceeded

its remedial authority in requiring annual readjustment of school attendance zones in the Pasadena school district when changes in the racial makeup of the schools were caused by demographic shifts “not attributed to any segregative acts on the part of the [school district].” Id., at 436. . . . [H]aving once implemented a racially neutral attendance pattern in order to remedy the perceived constitutional violations on the part of the defendants, the District Court had fully performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns. 503 U.S. at 487-88.

As to “percentage-race transfers” (see Response and Objections, at

15), we note that the government did not object to the decision to eliminate

them when it was initially presented to the plaintiff parties in August, 2013.

More important, under controlling legal principles, Defendants were free to

discontinue such transfers because they were never under a legal obligation


28

to offer them.22

In Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 413-14 (1977), the

Supreme Court approved the Sixth Circuit’s rejection of the trial court’s

reliance upon the school board’s rescission of resolutions that a predecessor

board had passed, in concluding that there was a constitutional violation:

[T]he [district] court considered action by a newly elected Board on January 3, 1972, rescinding resolutions, passed by the previous Board, which had acknowledged a role played by the Board in the creation of segregative racial patterns and had called for various types of remedial measures. The District Court’s ultimate conclusion was that the “racially imbalanced schools, optional attendance zones, and recent Board action . . . are cumulatively in violation of the Equal Protection Clause.” . . . The District Court’s conclusion that the Board’s rescission of previously adopted School Board resolutions was itself 22 No order from this Court required that such transfers be employed as a desegregation tool. The 1984 Order of this Court, see supra page 24, fashioned a specific procedure to ensure that “white students who would otherwise attend majority black schools [could not] transfer to Cavalry Hill,” Order at 2, “result[ing] in the resegregation of the black students within the [then] existing Cavalry Hill-Montview-Highlands-University Place cluster,” id. at 1; the Court directed that “white students shall not be allowed to attend the Cavalry Hill magnet if they are otherwise zoned to a majority black school at their grade level, id. That Order said nothing about “percentage of race” transfers. The 1988 Order of this Court approving the Davis Hills magnet, see supra pages 24-25, also said nothing about “percentage of race” transfers. After noting that the initial projected enrollment at the magnet would be 366 pupils, of whom up to 179 (the total number of students residing in the Davis Hills zone) could be admitted upon application, the Order continued: “The remaining white students [needed to reach the target ratio] will be admitted only after applying and only if they attend majority white schools” (emphasis added). In fact, class counsel is aware of no Order from this Court in this matter dealing with “percentage of race” transfers.


29

a constitutional violation is also of questionable validity. . . . The Board had not acted to undo operative regulations affecting the assignment of pupils or other aspects of the management of school affairs, cf. Reitman v. Mulkey, 387 U. S. 369 (1967), but simply repudiated a resolution of a predecessor Board stating that it recognized its own fault in not taking affirmative action at an earlier date. We agree with the Court of Appeals’ treatment of this action, wherein that court said: The question of whether a rescission of previous Board action is in and of itself a violation of appellants’ constitutional rights is inextricably bound up with the question of whether the Board was under a constitutional duty to take the action which it initially took. Cf. Hunter v. Erickson, 393 U. S. 385 [ ] (1969); Gomillion v. Lightfoot, 364 U. S. 339 [ ] (1960). If the Board was not under such a duty, then the rescission of the initial action in and of itself cannot be a constitutional violation. If the Board was under such a duty, then the rescission becomes a part of the cumulative violation, and it is not necessary to ascertain whether the rescission ipso facto is an independent violation of the Constitution.” Brinkman v. Gilligan, 503 F. 2d 684, 697 (1974). Judged most favorably to the petitioners, then, the District Court’s findings of constitutional violations did not, under our cases, suffice to justify the remedy imposed. And while Defendants did “discontinue[] a policy that allowed

students transferring through the Majority-to-Minority (M-to-M) transfer


30

program in elementary or middle school to continue on to high school in that

feeder pattern, which many students used to continue on to Huntsville and

Grissom” in the past, (Response and Objections, at 15),23 the parties

negotiated a modification of the policy that gave first-priority ranking for

access to higher-grade-level transfers to students who had completed the

terminal grade at a feeder school which they had attended through a

majority-to-minority transfer, thus essentially mooting the controversy. See

Ex. D-1 to Response and Objections, at 3.24

Finally, any delay in committing funds to ongoing construction and

commencing that construction on the schedule embodied in the May 20,

2013 Order substantially increases the possibility that the District will incur

costly arbitrage penalties, and this possibility is only exacerbated by the

contingency of possible grade restructuring, which the United States

suggests, that could potentially require modifications to facility design. As

described earlier in this brief (supra page 7), class counsel carefully 23 As described in the Response and Objections, at 6 n.15: “This change of policy was agreed to by [all] parties in light of District concerns that Huntsville High School was over capacity and in light of pending construction and changes to student assignment.” 24 Counsel for plaintiffs’ decision to make the change was based upon his assessment of the likelihood of prevailing, had the issue been pursued to litigation; he was and is aware of no order in a school desegregation matter, or decision of an appellate court, that mentioned, much less required, that such majority-to minority transfers had to carry with them the right to continue to the next school in a feeder pattern, and in his opinion, it would have been extremely difficult under the circumstances to obtain that relief.


31

examined the resources that would be available to Defendants to fund the

projects identified in the Construction Motion as well as the scheduling

constraints imposed by the arbitrage provisions of federal law. Those risks

apply not merely to the proceeds of the bonds issued by the Alabama Public

School and College Authority, but also to those sponsored by the City of

Huntsville for the benefit of the school district: the agreements between the

City and the School Board include specific language requiring the

Defendants to indemnify the City for any arbitrage penalties.25 Such

financial exigencies, if they were to occur, would jeopardize the important

benefits the children in the plaintiff class will realize under the Student

Assignment Plan if its implementation goes forward. That is too steep a

price to risk incurring.

CONCLUSION

For the foregoing reasons, plaintiffs respectfully request that this

Court approve Defendants’ Student Assignment Plan as submitted, and

direct its implementation.

25 See Exhibit “8” hereto, “Tax, Arbitrage, Rebate and Use Agreement” between City of Huntsville and Huntsville City School Board, at 1 §1, 3 §2; appended and incorporated “Tax Compliance Agreement,” at 10 §2.4(b). These documents cover the City’s 2014 bond sales for the benefit of the school system.


32

Respectfully submitted,

/s/ Norman J. Chachkin___________ Attorney for Plaintiffs 36 Cedar Drive [email protected] Accord, NY 12404-6002 Telephone: (845) 626-3092

CERTIFICATE OF SERVICE

I hereby certify that on March 10, 2014, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following counsel for the parties in this case: Maree Sneed, [email protected] J.R. Brooks, [email protected] Christopher M. Pape, [email protected] Shaheena Simons, [email protected] Sarah Hinger, [email protected] Andrea Hamilton, [email protected] Praveen Krishna, [email protected] /s/ Norman J. Chachkin___________ Norman J. Chachkin


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