Opinion
Civil Action No. 2:70cv3103-T.
August 11, 2004
Chinh Quang Le, Anthony T. Lee, et al., NAACP Legal Defense Fund, Dennis D. Parker, New York, NY, Donald V. Watkins, Donald V. Watkins, P.C., Birmingham, AL, Ernestine S. Sapp, Fred (Jr.) David Gray, Gray Langford Sapp McGowan Gray Nathanson, Tuskegee, AL, Gloria J. Browne-Marshall, NAACP Legal Defense Fund, New York, NY, Kenneth Lamar Thomas, Thomas Means Gillis Seay PC, Montgomery, AL, Valerie LaShawn Acoff, Thomas Means Gillis Seay PC, Birmingham, AL, for Plaintiff.
Anita S. Hodgkiss, U.S. Department of Justice, Civil Rights Division Educational Opportunities, Washington, DC, Charles Redding Pitt, Farris, Riley Pitt, LLP, Chinh Quang Le, Birmingham, AL, Isabelle Katz Pinzler, John R. Moore, Kathleen S. Devine, Kenneth Mines, U S Department of Justice, Civil Rights Division Educational Opportunities Section, Washington, DC, Kenneth E. Vines, U.S. Attorney's Office, Montgomery, AL, Pauline A. Miller, U S Department of Justice, Civil Rights Division Educational Opportunities Section, Washington, DC, Willie Troy Massey, National Education Association, Inc. W. Troy Massey, P.C., Montgomery, AL, for Intervenor Plaintiff.
George Houston Howard II, Elmore County Board of Education, et al, the individual members thereof, Howard Dunn Howard Howard, Wetumpka, AL, Anita L. Kelly, State of Alabama Board of Education, Gregory M. Biggs, Michael R. White, Reginald L. Sorrells, Anita L. Kelly, Superintendent of State Board of Education, and individual members of the State Board, Gregory M. Biggs, Michael R. White, Montgomery, AL, Reginald L. Sorrells, Champ Lyons, Jr., Don Seigleman, Governor as ex officio of State Board, Point Clear, AL, Edward Andrew Hosp, Maynard Cooper Gale, PC, Montgomery, AL, Anita L. Kelly, Superintendent of Education, George Houston Howard, II, Reginald L. Sorrells, Montgomery, AL, for Defendant.
Anita S. Hodgkiss, USA, Charles Redding Pitt, Isabelle Katz Pinzler, John R. Moore, Kathleen S. Devine, Kenneth Mines, Kenneth E. Vines, Pauline A. Miller, Montgomery, AL, for Amicus.
OPINION
This longstanding school desegregation case began in 1963 when the plaintiffs, a class of black students and their parents, sought relief from race discrimination in the operation of a de jure segregated school system. The defendants are the Elmore County Board of Education, its members, and the Elmore County Superintendent of Education, as well as the Alabama State Board of Education, its members, the State Superintendent of Education, and the Governor of Alabama. The Elmore County 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 this litigation terminated as to the Elmore County 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 16, 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) (three-judge court) (per curiam). 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).
In a number of previous opinions, this court gave the date that the United States became a party in this case as July 3, 1963. See Lee v. Autauga County Bd. of Educ., 2004 WL 1699068, at *1 (M.D. Ala. 2004); Lee v. Alexander City Bd. of Educ., 2002 WL 31102679, at *1 (M.D. Ala. 2002); Lee v. Lee County Bd. of Educ., 2002 WL 1268395, at *1 (M.D. Ala. 2002);Lee v. Russell County Bd. of Educ., 2002 WL 360000, at *1 (M.D. Ala. 2002); Lee v. Auburn City Bd. of Educ., 2002 WL 237091, at *1 (M.D. Ala. 2002); Lee v. Opelilka City Bd. of Educ., 2002 WL 237032, at *1 (M.D. Ala. 2002); Lee v. Butler County Bd. of Educ., 183 F. Supp.2d 1359, 1360 (M.D. Ala. 2002). It has recently come to the court's attention that this was an error and that the correct date is July 16, 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 Alabama 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 districts throughout the State, including Elmore County, to desegregate their schools. Lee v. Macon County Bd. of Educ., 292 F. Supp. 363 (M.D. Ala. 1968) (three-judge court) (per curiam); Lee v. Macon County Bd. of Educ., 267 F. Supp. 458 (M.D. Ala. 1967) (three-judge court) (per curiam).
On May 29, 1969, the Tallassee City Board of Education, a defendant in another, separate Lee case, was ordered to honor unconditionally the choices of students living in those areas of Elmore County from which students were accepted in the 1968-1969 school year, and the Elmore County School Board was ordered to file a revised school transportation plan and to foster the desegregation of the school system. On August 5, 1969, the court approved the Elmore County School Board's transportation plan and ordered it to assign black students living in certain areas to the Elmore County High School except for those black students who resided in an area that overlapped with the Tallassee City transportation area, who would be given a choice of schools; the court also ordered that a new choice period be conducted for the following school year. The court further ordered that the Tallassee City Board of Education be required to enroll students from Elmore County who chose to attend Tallassee City schools in numbers equal to the number of Elmore County students that the Tallassee City schools had taken in the past, plus an additional 10 % if that many more Elmore County students chose to attend. Finally, the faculty and staff of the Elmore County School System were ordered to desegregate so that, at each school, there was at least one teacher whose race was in the minority for every four teachers whose race was in the majority.
The Elmore County Board of Education's freedom-of-choice plan was only partially successful since two de jure black schools continued to have a student enrollment which was all black. On March 18, 1970, the court ordered the implementation of a desegregation plan to remedy this vestige of the segregated system. On November 6, 1970, the court modified the March 1970 order to permit the Elmore County School Board to reopen Sandtown Junior High as Millbrook Middle School for grades four, five, and six and to order that the teachers be assigned to Millbrook Middle School so that the ratio of black to white teachers in the school was substantially the same as the ratio for teachers in the system. On June 24, 1970, the three-judge court in Lee transferred jurisdiction of this case to a single district judge of the Middle District of Alabama, in which the school district is located.
B. The 1999 Consent Decree
On February 12, 1997, this court entered an order affecting eleven school systems, in which the court stated that it was "of the opinion that the parties should now move toward `unitary status' . . . and for the termination of the litigation." In a subsequent order dated March 14, 1997, the court directed 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.]
"(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 Elmore County School 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 meeting with class and community members. The plaintiff parties identified areas for which satisfactory compliance had been attained and areas needing further attention.
On February 22, 1999, the court approved a consent decree detailing the areas of district operations in which further remedial action was necessary. The areas in need of further remediation in Elmore County were faculty hiring and assignment; student assignment; intra-district transfers; inter-district transfers; in-class assignments; grouping; special education; graduation rates; student discipline; extracurricular activities; and transportation.
The parties agreed that in order for the district to attain unitary status in these remaining areas, the Elmore County Board of Education would undertake certain actions including developing policies and procedures in the identified areas to eliminate, to the extent practicable, 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 decree represented "a roadmap to the end of judicial supervision" of the Elmore County school system. NAACP, Jacksonville v. Duval County School, 273 F.3d 960, 963 (11th Cir. 2001). Many of the areas to be addressed were identified in Green as the areas of school operation that are traditional indicators of segregation.Green v. County School Bd. 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, 473, 112 S.Ct 1430, 1437 (1992).
The Elmore County Board of Education was required to file a comprehensive annual report with the court each year beginning June 30, 1999, and a report was submitted each year through 2003. The plaintiff parties had the opportunity to advise the board of any concerns regarding implementation of the decree. Concerns raised by the plaintiff parties were noted in annual progress reports which were discussed at status conferences. The school board addressed these concerns through continued review and modification of its programs, and it provided documents and reports in response to inquiries and issues raised.
The 1999 decree provided that the school board could file for dismissal of the case three years after approval of the consent decree and after filing the third annual report.
C. School District Profile
During the 2003-2004 school year, approximately 10,257 students were enrolled in 14 schools contained in four attendance zones in the district.
The Wetumpka attendance zone (approximately 3,379 students) contains one elementary school serving grades K-3 (Wetumpka Elementary), one intermediate school serving grades 4-6 (Wetumpka Intermediate), one junior high serving grades 7-8 (Wetumpka Junior High), and one high school serving grades 9-12 (Wetumpka High).
The Millbrook attendance zone (approximately 3,786 students) contains one elementary school serving grades K-1 (Coosada Elementary), one elementary school serving grades 2-3 (Robinson Springs), a middle school serving grades 4-8 (Millbrook Middle/Junior High), and one high school serving grades 9-12 (Stanhope Elmore High).
The Holtville attendance zone (approximately 1,467 students) contains one elementary school serving grades K-4 (Holtville Elementary), one middle school serving grades 5-8 (Holtville Middle), and one high school serving grades 9-12 (Holtville High).
Finally, the Eclectic attendance zone (approximately 1,625 students) contains one elementary school serving grades K-4 (Eclectic Elementary), one middle school serving grades 5-8 (Eclectic Middle), and one high school serving grades 9-12 (Elmore County High).
During the 2003-2004 school year, the board employed 594 certified teachers, of whom 125 — or 21% — were black. The board employed 43 administrators, 13 — or 30% — of whom were black. The board employed 326 non-certified support staff members, and 119 — or 37% — of whom were black.
D. State-Wide Issues
Over the course of the 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, its board members, the State Superintendent of Education, and the Governor of Alabama) did not participate in the Lee litigation, including the litigation related to the Elmore system. The question arose as to whether the state defendants were even parties in the local off-shoots of the Lee case. 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 special-education issues were resolved, and orders adopting the special-education consent decree were entered on August 30, 2000, in the eleven Lee cases, including this one.See Lee v. Butler County Bd. of Educ., 183 F. Supp. 1359, 1363 (M.D. Ala. 2000). Negotiations on the state-wide facilities issues are still on-going.
E. Motion for Declaration of Unitary Status
Following a conference held on October 10, 2002, this court determined that a significant difference of opinion existed between the Elmore County School Board and the private plaintiffs concerning the issues in dispute and the board's compliance with the 1999 Decree. Because of this impasse, by order dated October 11, 2002, the court referred the case to a magistrate judge "to identify those issues that remain in dispute" and to "mediate those issues that are in dispute."
A pre-mediation conference was held on November 14, 2002, and two remaining issues were identified: (1) the racial identifiability of teachers, administrators, and staff at certain schools; and (2) under-representation of minorities receiving diplomas (particularly standard diplomas) at certain schools. After the board provided further information, the parties agreed that no genuine dispute existed regarding the second issue. On July 11, 2003, the magistrate judge entered a final mediation report, reflecting counsels' agreement on the remaining issue. On July 28, 2003, pursuant to the terms of that report, the board passed a resolution reflecting the agreement and authorized the superintendent and board counsel to file the instant motion.
On September 15, 2003, the Elmore County School Board and its members and superintendent filed the instant motion for declaration of unitary status and termination of the litigation. The court set the motion for a fairness hearing and required the board to give all plaintiff class members appropriate notice of the motion and notice of the procedure for lodging objections.
After the court approved its notice form, the board 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 motion for unitary status, each of the five annual reports, and the progress reports filed prior to each of the status conferences were made available at the local school board offices. Copies of the motion for unitary status and notice were posted at each of the county schools and board offices for several weeks, and actual notice was provided to each student enrolled in the district and mailed to each parent or guardian of a student enrolled in the system.
Over 200 comments objecting to dismissal of this action were filed with the court. On October 31, 2003, the court held a fairness hearing on the motion for declaration of unitary status and termination. Seven community members spoke at the hearing.
The court concludes that the Elmore County 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
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 fulfills 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 Educ. 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 an 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 School, 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, 1445 (1992)); see also Manning v. School Bd. of Hillsborough County, 244 F.3d 927, 942 (11th Cir. 2001); Lockett v. Bd. of Educ. of Muscogee County, 111 F.3d 839, 843 (11th Cir. 1997).
In addition to these articulated constitutional standards, the Elmore County Board of Education was also required to comply with the contractual requirements of the 1999 consent decree which set forth specific steps the board was to take to attain unitary status. NAACP, Jacksonville Branch, 273 F.3d at 966. The parties agreed that the board would analyze and review programs and practices in each of the areas in which further action was required, that is, (1) faculty hiring and assignment, including recruitment, hiring and promotions and faculty and administrator assignment; (2) student assignment; (3) inter-district and intra-district student transfers; (4) extracurricular activities; (5) student discipline; (6) graduation rates, drop-out intervention and participation in special programs such as college preparatory classes; (7) special education; and (8) transportation. 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, and to ensure that the district was being operated on a nondiscriminatory basis.
The 1999 consent decree sets forth the legal standards for dismissal of a school desegregation: (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 good-faith 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 School Comm'rs, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292 (1971).
B. Terms of the 1999 Consent Decree and Compliance Efforts
1. Faculty Hiring and Assignment: The Elmore County School Board was required to make every reasonable effort to increase the pool of black applicants from which it selects its teachers and administrators to fill administrative and faculty vacancies.Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211, 1218 (5th Cir. 1969). As evidenced by the five annual reports previously submitted, the board expended effort to recruit and employ minorities and implemented the strategies required by the 1999 consent decree. For the 1997-1998 school year, the year before the consent decree was entered, the teaching staff for the system was 19% black and 81% white. During the term of the decree, the black-to-white ratio has ranged from 20-to-80 to 23-to-77. For the 2003-2004 school year, the board's total certified staff was 22% black which is slightly above the state-wide average. This figure includes administrators, of whom 31% were black.
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
2. Student Assignment: The 1999 consent decree established four separate geographical attendance zones (Wetumpka, Holtville, Millbrook and Eclectic) and, with limited exceptions, required students to attend the grade-appropriate school in the attendance zone in which they reside. The consent decree required the school board to ensure that student assignment to schools was made on a non-discriminatory basis with strict enforcement of established zone lines. Cf. Singleton, 419 F.2d at 1211.
The decree further required the school board to verify the residence of all students attending its schools. The board complied with this provision by notifying parents of the requirements of the consent decree and by requiring students to verify their residence and to attend the schools to which they are zoned. The board continues to require verification of residency to ensure that student assignment conforms to the district's boundary lines.
3. Inter-District and Intra-District Student Transfers: The Elmore County School Board does not permit non-resident students to attend Elmore County schools unless, as provided in the 1999 decree, one of the student's parents teaches in the Elmore County School System.
4. Extracurricular Activities: The Elmore County School Board agreed 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. The board complied with this provision by increasing efforts to inform students and parents about extracurricular activities. The board implemented procedures to increase the number of minority teachers who sponsor clubs and activities and to increase the level of minority-student participation in extracurricular activities. While the district saw an increase in minority-student participation, it sought the assistance of the Southeastern Equity Center on this issue. Additional strategies were implemented, including instituting an extracurricular fair at the beginning of the school year and providing academic work sessions and tutoring to assist students in meeting eligibility requirements.
5. Student Discipline: The board was required to ensure that student discipline was administered on a non-discriminatory basis. The board monitored discipline referrals, appointed a discipline coordinator and provided training. The board reviewed and revised its student code of conduct and established a bi-racial committee to review discipline procedures and statistics in each school and system-wide.
6. Graduation Rates, Drop-Out Intervention, and Special Programs: The Elmore County Board of Education was required to identify and provide intervention services for students at risk of dropping out of school as well as to evaluate the effectiveness of its programs. These efforts were detailed in each of the annual reports submitted to the court by the board.
The 1999 consent decree also addressed several areas involving student participation, particularly by black students, in special programs such as college preparatory classes. The decree required that such programs be conducted on a non-discriminatory basis and that the board formulate and adopt procedures and practices designed specifically to inform, attract, and recruit black students. The board developed and implemented procedures to increase minority-student participation in advanced classes by improving guidance and support to high school students and identifying and encouraging elementary school students to enroll in advanced classes. These steps included diversity and sensitivity training at each school, increased student contact with counselors, new reading programs and expanded enrichment programs at the elementary-school level, tutorial programs for students needing assistance in advanced classes, and expanded information provided to parents.
7. Special Education: The state-wide special-education issues were resolved by a consent decree entered on August 30, 2000.Lee v. Butler County Bd. of Educ., 183 F. Supp.2d 1359, 1366 (M.D. Ala. 2002). According to the terms of the state-wide decree, any claims in the area of special education are to be raised with the state defendants, that is, the Alabama State Board of Education, its members, the State Superintendent of Education, and the Governor of Alabama. Even if any such claim involving the Elmore County 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 2000 state-wide decree.
8. Transportation: The consent decree required the Elmore County Board of Education "to ensure the transportation of all eligible students on a non-segregated and otherwise non-discriminatory basis. "The board examined its bus routes at the beginning of the 1999-2000 school year and made modifications. Since that time, no party has raised a transportation-related issue.
9. Monitoring: The board, as required by the monitoring provisions of 1999 decree, filed annual reports. Each of the five reports detailed the school district's efforts and accomplishments in implementing the provisions of the decree during the preceding school year. Plaintiff parties reviewed and monitored these reports, frequently requested additional information and clarification, and advised the board of any continued concerns about their efforts. Progress reports were filed outlining the positions of the parties for discussion at the status conferences.
10. Future Action: The Elmore County Board of Education has evidenced an understanding that the declaration of unitary status does not relieve it of its responsibility to its faculty, staff, and students and to the community which it serves. To this end, the board adopted a resolution on July 28, 2003, which reflects its commitment to maintain the improvement that has resulted from its compliance with the consent decree.
C. October 31, 2003, Fairness Hearing
After the Elmore County School Board and its members and superintendent filed their motion for declaration of unitary status and termination of this litigation, the court scheduled a fairness hearing, required publication and notice of the proposed dismissal, and established a procedure for filing comments and objections. Over 200 comments were submitted objecting to termination of the litigation. Seven community members, including a student, parents of current and former students, and leaders of community groups spoke at the hearing. The associate superintendent, assistant superintendent, and superintendent testified on behalf of the school board.
The parents of current and former students who spoke at the hearing complained in general and specific terms about the treatment of their children by teachers, coaches, and school officials. Some of the parent's complaints related to the administration of student discipline and to participation in extracurricular activities, including cheerleading. The parents also said that more minority teachers and coaches were needed. The community leaders spoke about these issues and also stated that the district was not responsive to community concerns. A student spoke about an incident regarding a racial slur allegedly made to him by a substitute teacher and the failure of the administration to address the incident. All those who spoke complained about unfairness in the administration of the code of student conduct, particularly the application of the dress code. They complained that the district permits clothing displaying confederate symbols which black students find offensive but prohibits certain brands of clothing worn predominantly by black students.
The school district's associate superintendent, assistant superintendent, and superintendent testified regarding the district's efforts in complying with the terms of the 1999 decree. They also addressed the issues raised by the objectors, particularly the application of the dress code, which was modified for the 2002-2003 school year. The change, approved by superintendent without significant input from minority students and faculty, deviated from past practice and allowed students to wear clothing displaying confederate symbols. Counsel for the plaintiffs and United States cross-examined these witnesses and addressed the issues raised in the comments filed with the court.
At the conclusion of the hearing, it was determined that there were three open issues: (1) participation of black students as cheerleaders; (2) the alleged slur uttered to a student by a substitute teacher; and (3) the dress code policy as it pertains to clothing displaying confederate symbols. The court directed the district to revisit the dress code policy by forming an appropriate group to examine the issue.
The parties resolved these issues as follows. The school board provided the number of students, by race, on each of the district's cheerleading squads and provided the policies and procedures used to select the squad, which require that judges be from outside the school system. The parties agreed that this settled the issue.
The school district was ordered to investigate the allegation of the student that a substitute teacher at Wetumpka High School made derogatory remarks to him, including a racial slur and that the school system did not investigate the incident. The district investigated this matter and found that there appeared to be no witnesses to the incident. The district also found that while the student discussed the incident with a school employee who is also his aunt, the report of the incident was not forwarded to administrators and thus was not investigated. There are no reports of similar incidents involving this substitute teacher. The board agrees that, in the future, whenever this person is employed as a substitute teacher, his performance will be closely monitored. The district employee to whom the incident was reported will receive instruction on the responsibility to report any incident in which an employee may have used derogatory or insensitive language toward students or other personnel. The parties agreed that this matter was handled adequately.
The school board requested that the Southeastern Equity Center assist in reviewing the dress code and its application to clothing displaying confederate symbols. The center conducted a number of focus groups with students and faculty and determined that there was a general concern not only about the display of confederate symbols on clothing, but also about inconsistency and perceived unfairness in the application and interpretation of the dress code. The center recommended the following policy changes: (1) revisions to the dress code, the code of conduct, and the harassment policy; (2) intensive education for administrators, faculty, and staff regarding the dress code, the code of conduct, and the harassment policy; and (3) the creation of a district diversity committee to ensure consistent interpretation, application, and implementation of these policies. These policies were adopted by the board on June 21 and June 30, 2004. Copies of the board minutes adopting these changes were filed on July 30, 2004. A status conference was held on July 26, 2004, during which the parties advised the court that all of the open issues had been resolved.
III. CONCLUSION
On the basis of the record evidence, witness testimony, and averments of counsel, the court finds that the Elmore County 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 and has eliminated to the extent practicable the vestiges of the prior de jure segregated school system. Through their compliance with the court's orders over the years, their good-faith implementation of their contractual obligations under the 1999 consent decree, and their adoption of specific policies that extend into the future, 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.
The plaintiff parties have succeeded in the task they began decades ago: to end the seemingly immovable de jure system of school segregation in Elmore County. 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 it succeeded. NAACP, Jacksonville Branch v. Duval County School, 273 F.3d 960, 976 (11th Cir. 2001). By its decision 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 School, that "[t]he Board, and the people of [Elmore County] 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 Elmore County School System is properly returned to the Elmore County 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 will be 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.
An appropriate judgment will be entered.
JUDGMENT
In accordance with the memorandum opinion entered this day, it is the ORDER, JUDGMENT, and DECREE of the court as follows:(1) The motion for declaration of unitary status and termination of this litigation, filed by defendants Elmore County Board of Education, its members, and the Elmore County Superintendent of Education on September 15, 2003 (Doc. No. 174), is granted in all respects.
(2) The Elmore County School System is DECLARED to be unitary in all respects.
(3) All outstanding orders and injunctions are dissolved as to defendants Elmore County Board of Education, its members, and the Elmore County Superintendent of Education.
(4) Defendants Elmore County Board of Education, its members, and the Elmore County Superintendent of Education are dismissed.
It is further ORDERED that the state defendants (the Alabama State Board of Education, its members, the State Superintendent of Education, and the Governor of Alabama) are not dismissed and that the orders dealing with the state-wide "special education" and "facilities" issues are not dissolved.
The clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.