Opinion
Civil Action No. 70-T-853-E
February 13, 2002
Gloria J. Browne-Marshall, Dennis D. Parker, NAACP Legal Defense Fund, New York, NY, for plaintiff.
Kenneth Lamar Thomas, Thomas, Means, Gillis Seay PC, Montgomery, AL.
Fred (Jr.) Gray, Ernestine S. Sapp, Fred (Sr.) D. Gray, Gray, Langford, Sapp, McGowan, Gray Nathanson, Tuskegee, AL.
Valerie L. Acoff, Thomas, Means, Gillis Seay PC, Birmingham, AL.
Kenneth E. Vines, Redding Pitt, U.S. Attorney, U.S. Attorney's Office, Montgomery, AL, for Intervenor-Plaintiff.
Jeremiah Glassman, LeVern M. Younger, John R. Moore, Kathleen S. Devine, U.S. Department of Justice, Civil Rights Division Education Opportunities Section, Washington, DC.
Kenneth D. Johnson, U.S. Department of Justice Educational Opportunities Litigation Sec Civil Rights Division, Washington, DC.
Anita S. Hodgkiss, U.S. Department of Justice Civil Rights Division Educational Opportunities, Washington DC.
Donald V. Watkins, Donald V. Watkins, P.C., Birmington AL, for intervenor-plaintiff.
Yetta G. Samford, Jr., W. F. Horsley, Samford, Denson, Horsley, Pettey Bridges, Opelika, AL.
Anita L. Kelly, Department of Education Office of General Counsel, Montgomery, AL.
Michael R. White, State Department of Education Office of General Counsel, Montgomery, AL.
OPINION
This case has a long history. It was originally filed in 1963 by the plaintiffs, a class of black students, to obtain relief from race discrimination in the operation of a de jure segregated school system. The defendants are the Opelika City Board of Education, its members, and the Opelika City Superintendent of Education, as well as the Alabama State Board of Education, the State Superintendent of Education and the Governor of Alabama. The Opelika City Board of Education and its members and superintendent have moved for declaration of unitary status and termination of this litigation. Based on the evidence presented, the court concludes that the motion should be granted and that this litigation should be terminated as to the Opelika City Board of Education and its members and superintendent.
I. BACKGROUND A. Early Litigation
This case began in 1963 when several black students and their parents sued the Macon County Board of Education and its superintendent seeking relief from the continued operation of a racially segregated school system. On July 3, 1963, the United States was added as plaintiff-intervenor and amicus curiae in order that the public interest in the administration of justice would be represented. Lee v. Macon County Bd. of Educ., 267 F. Supp. 458, 460 (M.D. Ala. 1967). In a hearing before a single-judge court, the Macon County Board was enjoined to make an immediate start to desegregate its schools "without discrimination based on race or color." Lee v. Macon County Bd. of Educ., 221 F. Supp. 297, 300 (M.D. Ala. 1963).
After actions by the State of Alabama to prevent implementation of this order, the Macon County plaintiffs filed an amended and supplemental complaint in February 1964 alleging that the Alabama State Board of Education, its members, the State Superintendent, and the Governor as president of the state board, had asserted general control and supervision over all public schools in the State in order to maintain a de jure segregated school system. The court found that it was the policy of the State to promote and encourage a dual school system based on race, and the state officials were made defendants. Lee v. Macon County Bd. of Educ., 231 F. Supp. 743 (M.D. Ala. 1964) (three-judge court) (per curiam). In subsequent orders, the Lee Court ordered the State Superintendent of Education to require school district throughout the State, including Opelika City, to desegregate its schools. Lee v. Macon County Bd. of Educ., 292 F. Supp. 363 (M.D. Ala. 1968); Lee v. Macon County Bd. of Educ., 267 F. Supp. 458 (M.D. Ala. 1967) (three-judge court) (per curiam).
A desegregation plan for the Opelika City School System was filed on December 1, 1969, and the plan was accepted as modified by the court on January 22, 1970. On June 24, 1970, the three-judge court in Lee transferred the jurisdiction over 35 school boards involved in the Lee litigation, including the Opelika City Board of Education, to a single district judge of the United States District Court for the Middle District of Alabama, where the school districts were located.
On September 7, 1977, on motion of the United States, the Opelika City litigation was consolidated with parallel desegregation litigation in the Auburn City and Lee County School Systems to address the issue of racial isolation in the Loachapoka (Lee County) area, which had contained the historically black high school for all three school systems. By order of August 15, 1978, the court denied the United States' motion to modify its prior orders to require Auburn and Opelika to share liability with Lee County for Loachapoka's isolation; the court's order was affirmed by the Court of Appeals for the Eleventh Circuit on May 8, 1981.
B. School District Profile
The Opelika City School System operates eight schools and enrolls approximately 4,400 students. There are three primary schools (K-2), three intermediate schools (3-5), one middle school (6-8), one high school (9-12) and an alternative school. The alternative school provides educational experiences for students with disciplinary challenges and at-risk students. Each of the eight schools is predominately black and the system has a free and reduced lunch rate that exceeds 50 %. At the time of the entry of the 1998 consent decree (discussed below), the district enrolled approximately 4,533 students, 2,641 (59 %) black, 1,892 (41 %) white, and 75 (2 %) other. Currently, the district enrolls 4,398 students, 2,684 (61 %) black, 1,610 (39%) white, and 104 (2 %) other.
C. The 1998 Consent Decree
On February 12, 1997, this court entered an order affecting eleven school systems, stating that the court was "of the opinion that the parties should now move toward `unitary status' . . . and for the termination of the litigation [for the school systems] in these cases." The court ordered the parties to confer to determine:
"(a) Whether, in any of the areas set forth in Green v. County School Board of New Kent, 391 U.S. 430, 88 S.Ct. 1689 (1968), the defendants have achieved unitary status and, if so, whether the court may relinquish jurisdiction as to these areas. Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430 (1992) [These areas are: student attendance patterns, faculty, staff, transportation, extracurricular activities and facilities (footnote omitted)].
"(b) Whether there are Green or other areas as to which the plaintiff parties claim that the defendants have not eliminated the vestiges of prior de jure segregation.
"(c) Whether the parties can amicably develop a procedure through which the school system can achieve unitary status."
This court thus set in motion a lengthy and deliberative process of reviewing each of the school systems, including the Opelika City System. The parties in all eleven cases agreed upon the format and scope of informal discovery. The court designated a magistrate judge to oversee discovery and to mediate any disputes that arose during the course of negotiations. The parties in this case conducted lengthy informal discovery to obtain information about the school system, including touring the district's facilities, and met with class and community members. The plaintiff parties identified those issues for which satisfactory compliance had been attained as well as those areas for which the plaintiff parties identified as needing further attention.
On May 20, 1998, the court approved a consent decree detailing the areas of district operations in which the district was partially unitary and those in which further remedial action was necessary. Courts may allow partial or incremental dismissal of a school desegregation case before full compliance has been achieved in every area of school operations; jurisdiction is retained over the remaining parts of a desegregation case. Freeman v. Pitts, 503 U.S. 467, 490-91, 112 S.Ct. 1430, 1445 (1992). The district was found to have achieved unitary status in the areas of student assignment to schools, transportation, and facilities. Injunctions or portions thereof pertaining to these areas were dissolved, and these functions were appropriately returned to the control of the local governing body, the Opelika City Board of Education. Five areas were identified for further remediation: faculty assignment; student assignment and instruction within schools, including participation in special programs; special education; extracurricular activities; and student discipline. The parties agreed that in order for the district to attain unitary status in the remaining areas, the board would undertake certain actions including developing policies and procedures in the identified areas to eliminate the remaining vestiges of the dual system. The consent decree sets forth in detail the areas to be addressed and the actions to be undertaken. In other words, the consent decree represented "a roadmap to the end of judicial supervision" of the Opelika City school system. NAACP v. Duval County Sch. Bd., 273 F.3d 960, 963 (11th Cir. 2001). Many of the areas addressed fall under the Green factors, the areas of school operation which are traditionally held as indicators of a desegregated (or not) school system. Green v. County School Board of New Kent, 391 U.S. 430, 88 S.Ct. 1689 (1968) (the indicator areas of school operation are: student assignment, faculty and staff, transportation, facilities and extracurricular activities). The parties also addressed what have become known as quality-education issues that more closely relate to a student's day-to-day experiences within a school. Freeman v. Pitts, 503 U.S. 467, 472, 112 S.Ct 1430, 1437 (1992).
The Opelika City School District was required to file a comprehensive report with the court each year, and the plaintiff parties had the opportunity to advise the school system of any concerns about compliance with the terms of the 1998 consent decree. Concerns raised by the plaintiff parties were noted in annual progress reports. These were discussed at status conferences held on April 13, 2000, April 13, 2001, and August 23, 2001. The board addressed these concerns through continued review and modification of its programs. As noted below, progress was made in many areas. The 1998 consent decree provided that the board could file for dismissal of the case three years after approval of the consent decree and after filing the third annual report.
D. State-wide Issues
Over the course of years, as litigation affecting the individual school districts was dealt with by the courts as separate matters, the state defendants (that is, the Alabama State Board of Education, the board members, the State Superintendent of Education, and the Governor of Alabama) did not participate in the Lee litigation. The question arose as to whether the state defendants were even parties in the local off-shoots of the Lee cases. Previous rulings, particularly Lee v. Macon County Bd. of Educ., 267 F. Supp. 458 (M.D. Ala. 1967) (three-judge court) (per curiam), aff'd sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415 (1967), held that the State defendants were responsible for the creation and maintenance of segregated public education in the State of Alabama. The court found that state officials had "engaged in a wide range of activities to maintain segregated public education . . . [which] controlled virtually every aspect of public education in the state."Lee, 267 F. Supp. at 478. This court subsequently affirmed that despite cessation of participation by the state defendants when the individual district cases were transferred, the state defendants continue as parties in not only the state-wide litigation, but in all the off-shoot cases.Lee v. Lee County Bd. of Educ., 963 F. Supp. 1122, 1124, 1130 (M.D. Ala. 1997).
The parties identified two issues remaining in the state-wide litigation, "special education" and "facilities." The state-wide issues involving special education were resolved, and orders adopting the consent decrees were entered on August 30, 2000, in the eleven Lee cases, including this one. See Lee v. Butler County Bd. of Educ., 2000 WL 33680483 (M.D. Ala. 2000). Negotiations on the state-wide issues involving facilities are still pending.
E. Motion for Declaration of Unitary Status
During the August 23, 2001, status conference, the parties agreed that the actions taken by the Opelika City School System over the previous three years were in compliance with the 1998 consent decree and justified termination of the case. In particular, during the course of implementing the decree, the district had developed plans of action addressing each of the areas of continued concern raised by the plaintiff parties, and these plans were adopted by the school board as district policies and procedures. On September 26, 2001, the Opelika City Board of Education and its members and superintendent filed a motion for declaration of unitary status and termination of the litigation. The court set the motion for a fairness hearing and required the city school board to give all plaintiff class members appropriate notice of the motion as well as procedures for lodging objections.
After the court approved the notice form, the Opelika City Board of Education published, in the local newspaper over a three-week time period, notice of the proposed termination of this litigation and the date of the fairness hearing; the notice also provided procedures for class members and interested persons to file comments and objections with the court regarding the proposed dismissal. Forms for objections and comments were made available in numerous public locations. In addition to the published notice, copies of the termination motion, the future action plans, and the three annual reports were made available at the local school board offices. Notice forms along with forms for objections and comments were sent home with every student enrolled in the Opelika City School System. No objections were filed with the court opposing dismissal of the case. On November 27, 2001, the court held a fairness hearing on the motion for declaration of unitary status and termination.
The court concludes that the Opelika City Board of Education complied with the directives of the court in providing adequate notice of the proposed dismissal to class members as well as to the community. Fed.R.Civ.P. 23(e).
II. DISCUSSION A. Standards for Termination of a School Desegregation Case
It has long been recognized that the goal of a school desegregation case is to convert promptly from a de jure segregated school system to a system without "white" schools or "black" schools, but just schools.Green v. County School Bd. of New Kent, 391 U.S. 430, 442, 88 S.Ct. 1689, 1696 (1968). The success of this effort leads to the goal of ultimately returning control to the local school board since "local autonomy of school districts is a vital national tradition." Freeman v. Pitts, 503 U.S. 467, 490, 112 S.Ct. 1430, 1445 (1992) (quoting Dayton Bd. of Education v. Brinkman, 433 U.S. 406, 410, 97 S.Ct. 2766, 2770 (1977)). Returning schools to the control of local authorities "at the earliest practicable date is essential to restore their true accountability in our governmental system." Id.
The ultimate inquiry concerning whether a school district operating under a school desegregation order to dismantle a de jure segregated school system should be declared unitary is whether the school district has complied in good faith with the desegregation decree, and whether the vestiges of prior de jure segregation have been eliminated to the extent practicable. NAACP, Jacksonville Branch v. Duval County Sch. Bd., 273 F.3d 960, 966 (11th Cir. 2001) (citing Missouri v. Jenkins, 515 U.S. 70, 88, 115 S.Ct. 2038, 2049 (1995), and quoting Freeman v. Pitts, 503 U.S. 467, 492, 112 S.Ct. 1430 (1992)); see also Manning v. Sch. Bd. of Hillsborough County, 244 F.3d 927, 942 (11th Cir. 2001),cert. denied, ___ U.S. ___, 122 S.Ct 61 (2001); Lockett v. Bd. of Educ. of Muscogee County), 111 F.3d 839, 843 (11th Cir. 1997).
In addition to these articulated constitutional standards, here the Opelika City Board of Education was also required to comply with the contractual requirements of the 1998 consent decree which set forth specific steps the board was to take to attain unitary status. NAACP, Jacksonville Branch v. Duval County Schools, 273 F.3d 960 (11th Cir. 2001). The parties agreed that the board would analyze and review programs and practices in each of the areas in which further actions were required, that is, faculty assignment; student assignment and instruction within schools, including participation in special programs; special education; extracurricular activities; and student discipline. The board was to formulate and adopt procedures and practices designed specifically to address each of these areas. The board was thus required to take specific actions to address concerns the parties argued were vestiges of the prior dual system, to ensure that the district was being operated on a nondiscriminatory basis.
The legal standards for dismissal of a school desegregation case were set forth in the 1998 consent decree as (1) whether the district has fully and satisfactorily complied with the court's decrees for a reasonable period of time, (2) whether the vestiges of past discrimination have been eliminated to the extent practicable, and (3) whether the district has demonstrated a good-faith commitment to the whole of the court's decrees and to those provisions of the law and the Constitution that were the predicate for judicial intervention. Missouri v. Jenkins, 515 U.S. 70, 87-89, 115 S.Ct. 2038, 2049 (1995). By emphasizing that the good-faith component has two parts (that is, that a school district must show not only past good-faith compliance, but a good-faith commitment to the future operation of the school system), the parties looked both to past compliance efforts and to a goodfaith commitment to the future operation of the school system through "specific policies, decisions, and courses of action that extend into the future."Dowell v. Bd. of Educ. of the Oklahoma City Public Schools, 8 F.3d 1501, 1513 (10th Cir. 1993) (citations omitted). Regardless, "[t]he measure of a desegregation plan is its effectiveness." Davis v. Bd. of Sch. Comm'rs, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292 (1971).
B. Terms of the 1998 Consent Decree and Compliance Efforts
1. Faculty and Administrator Hiring and Assignment: The Opelika City Board of Education was required to increase the number of black applicants in the pool from which it selects its teachers and administrators to fill administrative and faculty vacancies, and to develop policies and procedures to ensure that faculty and staff were assigned to schools across the district so that no school would be identified as a white or black school by the race of the school's faculty. Singleton v. Jackson Municipal Separate Sch. Dist., 419 F.2d 1211, 1218 (5th Cir. 1969). As evidenced by the three annual reports previously submitted, the district has expended considerable effort to recruit and employ minorities. The district revised its employment procedures to ensure nondiscrimination in the hiring of faculty and developed and implemented a plan to increase the recruitment of minority faculty, staff, and administrators. The district's faculty recruitment strategies include advertising for vacancies, expanded on-site recruiting at historically black universities and all colleges and universities in the immediate area, advertising vacancies through public service announcements, coordination with community groups to identify minority candidates and participation in career job fairs. Data for school years 1997-1998 through 2000-2001 are as follows:
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the circuit splitting on September 30, 1981.
Faculty Summary
Percentage
Year Total Black White Other Black White
1997-1998 339 63 276 19% 81%
1998-1999 309 63 246 20% 80%
1999-2000 343 71 272 21% 79%
2000-2001 342 70 271 1 20% 79%
2. Student Assignment and Instruction: The consent decree required the school board to address several areas involving student participation, particularly by black students, in special programs such as college preparatory and advanced placement classes, certain extracurricular activities, student discipline, and special education. To ensure that such special programs were operated on a nondiscriminatory basis, the board was required to formulate and adopt a range of procedures to provide notice to parents and students; recruit black students to participate in and black faculty members to teach special courses or sponsor extracurricular activities; review discipline procedures; and provide training for teachers and guidance counselors. The district has made reasonable efforts to ensure that existing special programs, including college preparatory, honors and advanced placement, as well as any such programs that are modified or added at schools, are conducted on a nondiscriminatory basis. Previously, few minority students were enrolled in advanced course offerings; consequently, very few minority student graduated with advanced diplomas. As part of its consent decree obligations, the district developed and implemented a plan to encourage minority participation in special programs. The strategies include counseling parents and students as to the opportunities available to them, providing professional development opportunities to help teachers recognize students' potential, encouraging teachers to recommend minority students for placement in such classes, and reviewing all policies and procedures for determining class placement.
The number of minority students in honors or advanced classes increased as a result of implementation of these initiatives. The percentage of black students enrolled in honor classes at Opelika Middle School has increased from 30 % in 1997-1998 to 35 % in 2000-2001. Concurrently, the record reveals that there has been an increase in the percentage of black students awarded the advanced diploma since the consent decree was implemented. The percentage of black students receiving the advanced diploma for years 1998-1999, 1999-2000, and 2000-2001 was 17 %, 31 % and 24 % respectively.
3. Extracurricular Activities: The board was required to take all reasonable steps to ensure an equal opportunity for all students to participate in extracurricular activities, including providing notice about activities to students and parents, recruiting black faculty members to be sponsors, and monitoring participation in extracurricular activities. Since the entry of the consent decree, the Opelika City school system has taken steps to ensure equal opportunity for students of all races to participate in extracurricular activities. The district has instructed all sponsors and coaches of extracurricular activities to take affirmative steps to encourage participation in extracurricular activities. A booklet is compiled and published each year to inform all students of the availability of clubs and organizations. A survey is administered during the fall and the results are studied to make changes that encourage diverse participation. Fund-raising opportunities are available where financial aid is needed for clubs and organizations. Additionally, the district encouraged more minority faculty to become extracurricular activity advisors and coaches. Since the entry of the consent decree there has been a significant increase in the number of black students participating in music programs, notably in the choral program which went from 87 black students in 1997-1998 to 272 students in 2000-2001, a 36 % increase in black student participation.
4. Student Discipline: The district has undertaken efforts to address disparities in the area of student discipline. The school board developed a database to track discipline referrals and disciplinary actions. A uniform discipline policy in the form of a code of conduct has been instituted, and a discipline coordinator has been appointed to meet with principals on a quarterly basis to analyze discipline print-outs. A consultant recommended by the Southeastern Equity Center was employed to provide discipline training for all teachers and to analyze reports and make suggestions. Changes based on his recommendations are being implemented to further reduce the number of disciplinary infractions and suspensions. Data for school years 1998-1999 through 2000-2001 are as follows:
Suspensions
Percentage
Year Total Black White Black White
1998-1999 695 617 78 89% 11%
1999-2000 537 482 55 90% 10%
2000-2001 530 445 85 84% 16%
As reflected, the percentage of black students suspended dropped from 89 % in 1998-1999 to 84 % in 2000-2001. The total number of students suspended decreased from 695 in 1998-1999 to 530 in 2000-2001, with the number of black student suspensions decreasing from 617 in 1998-1999 to 445 in 2000-2001.
5. Special Education: As stated, the state-wide issues involving special education were resolved by a consent decree entered on August 30, 2000. See Lee v. Butler County Bd. of Ed., 2000 WL 33680483 (M.D. Ala. 2000). According to the terms of the state-wide decree, any claims in the area of special education would be raised with the state defendants. Even if any such claim involving the Opelika City school system were pending, it could not prevent a declaration of unitary status since the matter would be addressed with the state defendants as part of the commitments made under the state-wide decree.
6. Monitoring: The Opelika City Board of Education filed three annual reports. Each report detailed the school district's accomplishment during the preceding school year. These reports were reviewed and monitored by the plaintiff parties. The plaintiff parties were given the opportunity to advise the board of any continued concerns about these efforts. A progress report was filed by the United States outlining the positions of the parties for discussion at the annual status conference.
7. Future Action: The Opelika City Board of Education understands that the declaration of unitary status does not relieve it of its responsibility to its faculty, staff, students, and the community which it serves. To this end, the board adopted a resolution on August 30, 2001, which acknowledges the commitment of the Opelika City Board of Education to maintain the improvements in the district that resulted from its efforts to comply with the consent decree.
C. November 27, 2001, Fairness Hearing
After the Opelika City Board of Education and its members and superintendent filed their motion for declaration of unitary status and termination of this litigation, the court required publication and notice of the proposed dismissal, scheduled a fairness hearing, and established procedures for filing comments and objections. No objections were filed with the court.
The court conducted a fairness hearing on November 27, 2001, and heard testimony and received evidence offered by the Opelika City Board of Education in support of the motion for unitary status. The Superintendent of Education for the Opelika City school system testified concerning the school board's affirmative efforts to comply with the consent decree, including enhanced recruitment strategies implemented to recruit and hire black faculty, increased black student participation in extracurricular activities and academic courses, and employment of a consultants to provide safety and sensitivity training. The superintendent described with pride the August 30, 2001, resolution approved by the board which commits the Opelika City Board of Education to remain in compliance with the directives of the consent decree in the future.
III. CONCLUSION
On the basis of the record evidence, witness testimony, and averment of counsel, the court finds that the Opelika City Board of Education and its members and superintendent have met the standards entitling the school district to a declaration of unitary status and termination of this litigation. The board has fully and satisfactorily complied with the orders of this court. The vestiges of the prior de jure segregated school system have been eliminated to the extent practicable. The court also finds that the board and its members and superintendent have demonstrated a good-faith commitment to the whole of the court's decrees and to those provisions of the law and the Constitution, that were the predicate for judicial intervention in this school system in the first instance, through their compliance with the court's orders over the years, through their good-faith implementation of their contractual obligations under the 1998 consent decree, and through their adoption of specific policies and actions that extend into the future demonstrating their commitment to the operation of a school system in compliance with the Constitution.
The plaintiff parties have succeeded in the task they began decades ago to seek the end of the seemingly immovable de jure system of school segregation in Opelika City. This lawsuit sought to bring the district into compliance with the constitutional requirement of equal protection under the law, and the court states today that they have succeeded.NAACP, Jacksonville Branch v. Duval County Schools, 273 F.3d 960, 976 (11th Cir. 2001). By its actions today, the court recognizes and congratulates the sustained efforts of the parties. In so doing, the court notes, as the Eleventh Circuit stated in Duval County Schools, that "[t]he Board, and the people of [Opelika City] who, in the end, govern their school system, must be aware that the door through which they leave the courthouse is not locked behind them. They will undoubtedly find that this is so if they fail to maintain the unitary system [the court] conclude[s] exists today." Id. at 976-77.
Therefore, with the judgment the court will enter today, control over the Opelika City School System is properly returned to the Opelika City Board of Education and its members and superintendent. The motion for declaration of unitary status and termination of this litigation filed by the board and its members and superintendent will be granted, all outstanding orders and injunctions will be dissolved, and this litigation dismissed as to the board and its members and superintendent. However, the state defendants are not dismissed, and the orders dealing with the state-wide "special education" and "facilities" issues are not dissolved.