Federal Court of Appeals Judges Grill Attorneys for Gardendale, NAACP in Hearing

Former federal judge U.W Clemon, now a private attorney, spoke to a video crew from The Huffington Post on Thursday outside the 11th Circuit Court of Appeals in Atlanta. Clemon represented the NAACP Legal Defense and Education Fund in their appeal against a ruling that allowed the city of Gardendale to take partial control of the city’s schools away from the Jefferson County School System. (Source: Robert Carter)

ATLANTA — Both sides in the Gardendale school separation court case faced a panel of three federal judges at the 11th Circuit Court of Appeals on Thursday, and those judges weren’t always buying what the attorneys were selling.

The oral arguments were part of the latest step in the legal process of Gardendale’s proposed separation from the Jefferson County School System, which would result in a municipally operated system with four schools. The plan is opposed by JefCoEd and the NAACP Legal Defense and Education Fund, which both fear the separation would harm the county system’s efforts to achieve full and final legal racial desegregation and end federal court supervision that began in the 1970s.

Last April, U.S. District Judge Madeline Haikala ruled that Gardendale could go on with the formation of its system but could take control of only two elementary schools at first and would gain complete control when she was satisfied that desegregation issues had made sufficient progress. She also found that the reason the city wanted to separate was racially motivated.

That partial decision didn’t satisfy either party. Gardendale appealed to the 11th Circuit, asking that they rule in favor of a full takeover right away. The NAACP wasn’t happy, either, arguing in their cross-appeal that the racial-motivation finding should have disqualified the city from breaking away.

The three judges —William H. Pryor Jr., former Alabama attorney general; Jill Pryor, no relation; and Raymond Clevenger, a visiting senior judge from the U.S. Circuit Court of Appeals based in Washington, D.C. — peppered attorney Aaron Gavin McLeod, representing Gardendale, with numerous questions about how the split would affect not only JefCoEd’s efforts to achieve unitary status, which is full desegregation and removal of court supervision, but also its finances. William Pryor, in particular, seemed visibly dismayed at why Haikala’s “split decision” came to be.

“What law empowers a district judge to impose a partial separation that no party asked for?” he asked McLeod.

William Pryor, reacting to an argument by McLeod, also asked about the posts by various separation supporters on Facebook who were entered into evidence in the trial court and whether their inclusion was appropriate. He cited a landmark Supreme Court ruling in a case involving the village of Arlington Heights, Illinois, in which the court tried to determine whether a zoning ordinance had “discriminatory intent” because its enactment effectively barred members of certain racial and economic classes from a housing development.

“The district court didn’t just look at the Facebook posts,” William Pryor said. “The Arlington Heights case says district courts can look at them as part of a broader mosaic.”

William Pryor added that the Arlington Heights case precedent permitted some evidence that showed “organized constituent action that influenced government actors.”

McLeod’s arguments also perplexed Clevenger. “This puzzles me. You sound like you are defending the district court,” Clevenger said.

The panel quizzed McLeod well beyond his allotted 15 minutes, and it extended the time for both NAACP attorneys, former federal judge U.W. Clemon, who was on the original legal team that filed the Stout vs. Jefferson County Board of Education case in the 1960s, and Monique Lin-Luse, who split their allotted time.

Lin-Luse pointed out that the loss of the Gardendale schools would adversely impact JefCoEd to the tune of $2 million per year, which would also hamper unitary-status efforts.

As William Pryor pointed out to NAACP attorney Lin-Luse, the appeals court has several options at its disposal: affirm Haikala’s ruling in part and vacate the rest, which would return to the status quo and deny Gardendale’s efforts to break away; rule in Gardendale’s favor and partly overturn Haikala’s ruling, allowing the city full control; let Haikala’s decision stand as is; or remand the decision back to the district court, often with additional instructions.

“If the judges remanded the case, then the private plaintiffs (the replacement for the Stout family that originally sued JefCoEd in 1965) would then have the choice of seeking a rehearing by the panel, because we don’t believe a remand is warranted,” Clemon said afterward.

As is often the case in federal appeals courts, the judges didn’t reveal much about the way they were leaning with their lines of questioning. And after the hearing, that left officials for both Gardendale and JefCoEd looking for the bright spots for their sides.

“It was about what we expected,” Gardendale Superintendant Patrick Martin said. Martin, who has been a superintendent without any schools since he was hired in 2014, recently was named as a finalist for the open superintendent’s position in the Vestavia Hills school system.

Martin’s JefCoEd counterpart, Craig Pouncey, said the hearing “reaffirmed our commitment to children, and that’s what we’ve got to continue to focus on… . All we have to do is look at the history of Jefferson County, at the disruptions that we’ve had with every splinter group that has come out with the formation (of) one system after another. It has forced us to survive with aiming at a moving target. It has impacts over all 36,000 children.”

Clemon, who said he has appeared about 20 times before the court of appeals before and after his own time on the bench, said he was “cautiously optimistic.”

“I believe that the three judges fully understood and appreciated the tremendous work the district judge had done in the case, although … the judges had some questions about whether she had the authority to approve any component of the new Gardendale school system,” Clemon said. “That’s the position we’ve taken all along — once a judge has found racial discrimination and has found an adverse impact on desegregation, then the judge has no further discretion. The judge must deny the formulation of the splinter school system.”

What Comes Next?

A final ruling by the three-judge panel will not come quickly. It will likely take several weeks, perhaps a few months. If Gardendale were to prevail, they might find themselves with the right to take over the four schools, but not much time to turn things around for the 2018-19 school year. It’s a situation Martin and Board President Michael Hogue have faced before.

“Our staff has been working very hard to get everything ready,” Hogue said. “We have all of our policies and procedures drafted, ready to take those to the teacher’s union to review those with them as soon as we’ve got the green light to move ahead… . We’ve got all the pieces in place, and I’m confident we will be fully functional and ready to go.

“We think the law is on our side. We’re optimistic that we’ll be operational next fall. You really can’t tell from the questioning what directions where the (judges) are headed.”

The panel has two members appointed by Republican presidents: William Pryor by George W. Bush, and Clevenger by George H.W. Bush. Jill Pryor was appointed by a Democrat, Barack Obama, in a nomination that took two attempts to get through a Republican-controlled Senate.

If the appeals court rules all the way in either direction, there are still options remaining for the losing party. They could request an en banc hearing in front of all the judges assigned to the 11th Circuit. And if that doesn’t work, there is one final course — a request for the Supreme Court to hear the case.