The opposing sides in the ongoing Gardendale school-separation case have thrown their first punches in the second round of their fight.
Attorneys for the Gardendale Board of Education and the NAACP Legal Defense and Education Fund have filed briefs with the U.S. Court of Appeals for the 11th Circuit in Atlanta, arguing from opposite sides why they think the ruling by District Judge Madeline Haikala to give Gardendale control of two elementary schools should be thrown out.
The LDEF wants the 11th Circuit to rule that Gardendale should not be allowed to split from the Jefferson County school system because Haikala ruled that the separation was racially motivated, and therefore it violated the U.S. Constitution as well as precedent established in Stout v. Jefferson County Board of Education. That landmark case, filed in 1965, found that JefCoEd operated a racially segregated school system. The Stout case still gives federal courts jurisdiction over the system, as well as other municipal systems that have broken away from JefCoEd since.
On the other hand, the Gardendale board wants the Haikala decision changed to allow it to take over all four schools in the city limits right away. The board argues that the assertion of racial motivation was based largely on postings by Gardendale residents on Facebook, over which the city and the board of education had no control.
The LDEF brief, filed Aug. 7, contends that the split should not be allowed because the loss of Gardendale students would adversely affect the racial balance of the remainder of the county system, which has sought to achieve unitary status — the legal term for declaring that a system is fully desegregated — for nearly half a century.
“Controlling precedent establishes a clear test for determining whether a newly created school district may secede from a parent district operating under a federal desegregation order: secession is permitted only if the formation of the new district will not impede the dismantling of the racially discriminatory, dual school system in the parent district,” the brief states. The precedent cited comes from the original ruling in the Stout case, which the LDEF argues is still the legal precedent that governs the Gardendale procedure.
That precedent was later cited in a desegregation case in Kansas, the LDEF brief states, arguing that Haikala erroneously held that the Kansas ruling partially overruled the original Stout precedent, and that there have been no exceptional circumstances to change that or other subsequent precedents.
The LDEF also argues that the “practical considerations” Haikala cited in approving the partial takeover are not allowed by law or precedent – that the ruling must either disallow the separation entirely or allow a full takeover of all schools involved.
“Here, however, the District Court turned the burden on its head, permitting Gardendale to secede based on ‘practical considerations’ even though Gardendale did not satisfy its significant burden,” the brief states, adding, “those considerations are unpersuasive on their own terms.
“Affirming the District Court’s approval of a separate Gardendale school district not only eviscerates the longstanding precedent that a discriminatory effect prohibits the creation of a splinter district, but also would permit discriminatory intent to be ignored in the creation of a splinter district,” the LDEF argues.
Gardendale Says Social Media Posts Aren’t Official Action
Gardendale’s brief had not been processed by the federal courts’ online filing system as of Aug. 11, but a copy was provided to BirminghamWatch by the Gardendale Board of Education. In that brief, the city school board asserts that the social-media comments made by some supporters of the separation effort could not be used as legal proof of racial motivation. The NAACP has argued that the racial motivation violates the equal-protection clause of the 14th Amendment of the U.S. Constitution.
“Racial discrimination, though invidious in all contexts, violates the Constitution only when it may be attributed to state action,” the Gardendale appeal stated, citing a quote in the landmark case Edmonson v. Leesville Concrete, in which the U.S. Supreme Court held that lawyers in civil cases could not strike potential jurors because of race.
In the trial held in December, opponents of the separation introduced printouts of Facebook postings in a group supporting the breakaway.
“The court’s rationale was that ‘the Gardendale district’ had abridged the rights of black students because ‘words and actions associated with Gardendale’s separation effort sent a message of inferiority’ to them,’” the brief stated, citing in part Haikala’s ruling.
The brief also cited references by Haikala to a flyer circulated by a pro-separation group, which listed nearby cities such as Center Point that have a majority of African-American residents. “The statements and conduct of those the court called ‘organizers’ reflected the thoughts and wishes of private citizens unsupported by state power. For their conduct Gardendale cannot be liable,” the brief asserts.
Gardendale attorneys also argue that, even if a board member or city official had made remarks that made minority students feel inferior, that act alone was not enough to violate the Constitution unless the remarks were pervasive, or accompanied by actions. “So even if some statement fairly attributable to Gardendale had caused feelings of inferiority in students, no right was violated. The Constitution is not a therapeutic document,” the brief states.
Similarly, the Gardendale appeal argues that Haikala’s finding of racial motivation was erroneous to start with. “(I)t is fundamentally unfair to blame Gardendale for someone else’s supposed racism. A finding of discriminatory intent requires some official action by the party so charged,” the brief states.
Gardendale also argued that the lack of action to criticize racially tinged comments by others was not tantamount to official action. It also stated that the Facebook posts were inadmissible by federal rules of evidence because their authorship could not be and were not authenticated. An exception is those posts made by Gardendale Board of Education member Chris Lucas, who testified in court that posts bearing his name were authentic.
“This error was highly prejudicial because the lower court relied on and quoted extensively from various Facebook posts without evidence to show that those posts were written by Gardendale residents – and some of them indicate they were not,” the brief states. “Admitting these posts (and the flyer) was abuse of discretion because of the irrelevance they all have in common: they have nothing to do with the Gardendale Board.”
Effects on Jefferson County Schools
The Gardendale appeal also takes issue with the claim that the breakaway would impede JefCoEd efforts to achieve unitary status. It asserts that the county system is already desegregated and has been since 1976. “The dismantling of Jefferson County’s former dual school system is an accomplished fact and has been for 41 years,” the brief states, citing an earlier ruling by Haikala’s predecessors in the Stout case.
The city system also argued that the split would cause JefCoEd’s percentage of African-American students to rise by only 1.5 percent, or by 1.8 percent if students from the predominantly black North Smithfield neighborhood were not allowed to stay with the Gardendale system. Those students have been bused to Gardendale and Fultondale schools for years in efforts to achieve racial balance, and Gardendale offered to let those students remain indefinitely. Other federal courts have allowed new systems to break away even if larger percentages of minority students would move to the parent system, Gardendale argues.
The city system’s appeal also argues that Haikala’s price tag for taking over the Gardendale High School campus was too onerous. She said the new school system would have to either compensate the county system so it could build another high school, or Gardendale would have to build its own school. Gardendale’s appeal states that Alabama law provides for the city to take over that facility without payment. The appeal argues that Haikala ignored that and “imposed on the citizens of Gardendale a multi-million-dollar roadblock to doing what state law permitted, without considering whether less onerous solutions were at hand.”
The brief further asserts that the Jefferson County Commission, not JefCoEd, paid for the high school. “Without danger of an impediment to desegregation, imposing a fee for the high school was tantamount to rewriting state law to accord with the court’s view of fairness,” the brief argues.
Both the LDEF appeal and the Gardendale cross-appeal request that the Court of Appeals hold arguments in the case. Gardendale specifically asked that the arguments be scheduled as early as possible so that it can take control of the schools in the 2018-2019 school year, if the court rules in its favor.