Case 5:63-cv-00109-MHH Document 324 Filed 05/16/14 Page 1 ...media.al.com/breaking/other/hsvmay16.pdf · Freeman and Holton teach that a Court is not authorized to order a school

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

SONNIE WELLINGTON HEREFORD, ) IV., et al., ) ) Plaintiffs, ) ) AND ) CV-63-MHH-109-NE ) UNITED STATES OF AMERICA, ) ) Plaintiff-Intervenor, ) ) v. ) ) HUNTSVILLE BOARD OF ) EDUCATION, et al., ) ) Defendants. ) SUPPLEMENTAL BRIEF OF DEFENDANTS IN SUPPORT OF DEFENDANTS’ STUDENT ASSIGNMENT PLAN

FILED 2014 May-16 PM 05:27U.S. DISTRICT COURT

N.D. OF ALABAMA

Case 5:63-cv-00109-MHH Document 324 Filed 05/16/14 Page 1 of 35

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TABLE OF CONTENTS

I. Introduction ................................................................................ 1

II. Binding Precedent Does Not Authorize The United

States’ Proposed Scenarios Nor Does It Support The United States’ Position ....................................................... 2 A. Adopting The United States’ Scenarios E.1 an E.2

Would Exceed This Court’s Authority Under Eleventh Circuit Precedent ................................................... 3

B. The Record Supports the Application of Freeman and Holton to Huntsville ..................................................... 6

C. Huntsville’s Proposed Assignment of the Students Who Live In Butler High’s Boundary is Constitutional ....................................................................... 9

III. The Record Establishes that Huntsville’s Plan Furthers Desegregation ............................................................. 12 A. Standard Applicable to Huntsville’s Motion ....................... 12

B. The Record Establishes that Huntsville’s Motion

Meets the Applicable Standard ............................................ 13 1. Huntsville’s Plan Does Not Perpetuate or Reestablish

A Dual School System..................................................... 14

2. Huntsville’s Plan Furthers Desegregation and Helps to Eliminate the Effects of the Previous Dual School System ........................................................ 17

3. Huntsville Considered Diversity In Its Plan .................. 18


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IV. The Department of Justice’s Proposed Student Assignment Scenarios Are Not Feasible and Run Afoul of Lee v. Anniston City Schools .................................... 19

A. United States’ E.1 Scenario Is Not Feasible and Recommends Significant Intrusions Into Huntsville’s Educational Policymaking Powers ...................................... 19 1. Blossomwood Becomes Significantly Overcrowded ...... 21

2. Jones Valley Becomes Significantly Over-Utilized ........ 24

3. Shifting Sonnie Hereford to the Huntsville Middle-

Huntsville High Feeder Pattern Creates Under- Utilization and Increases Black Live-In Enrollment For McNair Middle and Jemison High .......................... 24

B. United States’ E.2 Scenario is Infeasible Because It

Retains E.1’s Problems and Creates Transportation Safety Issues ........................................................................ 28

CONCLUSION ................................................................................... 30


UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION SONNIE WELLINGTON HEREFORD, ) IV., et al., ) ) Plaintiffs, ) ) AND ) CV-63-MHH-109-NE ) UNITED STATES OF AMERICA, ) ) Plaintiff-Intervenor, ) ) v. ) ) HUNTSVILLE BOARD OF ) EDUCATION, et al., ) ) Defendants. ) SUPPLEMENTAL BRIEF OF DEFENDANTS IN SUPPORT OF DEFENDANTS’ STUDENT ASSIGNMENT PLAN I. Introduction

Huntsville City Schools’ Motion for Approval of Defendants’ Student

Assignment Plan is currently pending before this Court. By this motion,

Huntsville City Schools (“Huntsville”) seeks to resolve a single issue: whether

Huntsville’s Student Assignment Plan (“Plan”) satisfies Huntsville’s constitutional

obligations regarding student assignment. On March 10, 2014, Huntsville filed a

brief in support of its motion that detailed the reasons that Huntsville’s Plan more

than satisfies its constitutional obligations. (Doc. 298).


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From April 16, 2014 to May 2, 2014, the parties engaged in discovery.

During this short period of time, Huntsville reviewed and produced to the United

States a considerable amount of electronically-stored information, including in

excess of 140 Excel spreadsheets, and over 6,800 pages of documents scanned

from hard copies. In addition to responding to interrogatories, requests for

production, and requests for admissions, the parties have taken five depositions.

The United States has taken the depositions of Edith Pickens, Huntsville’s Director

of Secondary Education; David Blair, President of the Huntsville Board of

Education; Dr. Wardynski, Huntsville’s Superintendent; and Tracy Richter,

Huntsville’s demographer. Huntsville has taken the deposition of Matthew

Cropper, the United States’ demographer.

In its Response and Objections to Defendants’ Motion for Approval of

Defendants’ Student Assignment Plan (Doc. 287), the United States relied on the

incorrect legal standard and proposed modifications to Huntsville’s Plan that are

not authorized by well-established law. To accede to the United States’ position is

error.

II. Binding Precedent Does Not Authorize The United States’ Proposed Scenarios Nor Does It Support The United States’ Position

The United States has proposed two different student assignment scenarios

in Exhibits E.1 and E.2 to its Response and Objections to Defendants’ Motion for

Approval of Defendants’ Student Assignment Plan (“scenario E.1” and “scenario


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E.2,” respectively). (Doc. 287, pp 20-24); (see also Exs. E.1, E.2 to Doc. 287).

Freeman v. Pitts, 503 U.S. 467 (1992), discussed extensively in Huntsville’s

principal brief, (Doc. 298, pp. 7-27), and its Eleventh Circuit progeny, including

Holton v. City of Thomasville School Dist., 425 F.3d 1325 (11th Cir. 2005), if

applicable to Huntsville, would preclude scenario E.1 and E.2. Given the factual

similarities between Huntsville’s situation and the situations for the districts in

Freeman and Holton, these cases are undeniably applicable to Huntsville and,

therefore, preclude adoption of scenarios E.1 and E.2.

In addition to its proposed scenarios, the United States has argued that

Huntsville, by assigning almost half of Butler’s current live-in enrollment to

Jemison High, has failed to meet its constitutional obligation to further

desegregation. The Freeman and Holton decisions foreclose this argument.

A. Adopting The United States’ Scenarios E.1 and E.2 Would Exceed This Court’s Authority Under Eleventh Circuit Precedent

In Holton v. City of Thomasville School Dist., 425 F.3d 1325 (11th Cir.

2005), the Eleventh Circuit addressed the scope of relief available to plaintiffs in a

case with similar factual history as Huntsville and Freeman. Under Holton,

adopting the United States’ position would exceed this Court’s authority.

In Holton, the school district, a few years after it ended de jure segregation,

effectively desegregated its school system. Holton, 425 F.3d at 1351 (“the district

court based its findings on a thorough evaluation of Thomasville’s school-


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enrollment data from 1965 (the last year the District was de jure segregated) to the

time of trial. The district court observed that the District’s first desegregation plan

was ineffective, but that its second plan, adopted in 1970, in fact effectively

desegregated the schools for at least six consecutive years”). However, like

Huntsville, the school district in Holton experienced demographic changes in the

years following its effective desegregation. Id. (“Racial imbalances that developed

subsequently . . . resulted not from the District’s prior de jure segregation, but from

a confluence of external factors, including a substantial decline in white enrollment

in the District and population shifts within the District.”). In light of the evidence

before the district court, the Holton court affirmed the “district court[’s]. .

.conclu[sion] that changes in Thomasville’s demography and school enrollment

substantially caused the racial imbalances among the student populations of the

District’s elementary schools.” Id.

Because the school district in Holton effectively desegregated its schools

prior to the demographic shifts that caused the racial imbalances in its schools, the

Holton Court explained that “the District is, of course, free to adopt attendance

zones or other constitutional measures that might counteract these effects,

[however,] it is simply beyond the authority of any court to force such a policy

measure on the District.” Holton, 425 F.3d at 1352. The Holton Court emphasized

that “[r]acial balance is not to be achieved for its own sake. It is to be pursued


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when racial imbalance has been caused by a constitutional violation.” Id. (quoting

Freeman, 503 U.S. at 494–95).

The Holton Court further explained that “the Supreme Court has concluded

that a district court will exceed its authority when it intervenes to rearrange a

school district’s attendance zones in order to achieve greater racial balance.”

Holton, 425 F.3d at 1353 (citing Pasadena City Bd. of Educ. v. Spangler, 427 U.S.

424 (1976)). Therefore, the Holton Court ruled that “the district court would

exceed its authority by requiring the City of Thomasville School District to adopt

attendance zones in order to counteract racial imbalances caused by demographic

forces rather than by prior de jure segregation.” Holton, 425 F.3d at 1353.

The United States’ prior filings and its expert’s report and testimony

demonstrate that the United States’ goal is to achieve racial balance in Huntsville’s

schools. To meet this goal, the United States has proposed scenarios E.1 and E.2,

which call for significant changes to Huntsville’s proposed feeder patterns. See

Sections IV.A, IV.B, infra. The United States’ expert, Matthew Cropper, testified

that the objective of these scenarios is to increase diversity in Huntsville City

Schools. (Cropper Depo., pp. 22-23); (Ex. 2 to Cropper Depo., p. 3).

Freeman and Holton teach that a Court is not authorized to order a school

district that has previously desegregated its schools to adopt measures meant

merely to counteract racial imbalances caused by private choices. The United


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States’ scenarios E.1 and E.2 ask this Court do just that and, therefore, must not be

adopted.

B. The Record Supports the Application of Freeman and Holton to Huntsville

In order to rely on Freeman and Holton, Huntsville must meet its “burden of

showing that any current imbalance is not traceable, in a proximate way, to [its]

prior [constitutional] violation.” Freeman, 503 U.S. at 494. In its principal brief,

Huntsville detailed the procedural history of this case, Huntsville’s good faith

efforts to desegregate its schools, and the City of Huntsville’s radical demographic

shifts. (Doc. 298, pp. 6-17). As evidentiary support, Huntsville submitted this

Court’s pertinent orders and the affidavit and supporting exhibits of Connie

Graham, the demographer for the City of Huntsville. (Doc. 298, pp. 6-17); (Exs. 1-

12, 15 to Doc. 299).

This evidence establishes that Huntsville, like the districts in Freeman and

Holton, desegregated its schools, with respect to student assignment, at a point

earlier in time. See Freeman, 503 U.S. at 477; (Ex. 3 to Doc. 299). This evidence

also establishes that Huntsville, like the districts in Freeman and Holton,

experienced a radical and significant series of demographic shifts following the

desegregation of its schools, and that Huntsville took affirmative steps to fight the

effects of these demographic shifts. Freeman, 503 U.S. at 475-78; (Ex. 15 to Doc.

299). Therefore, Huntsville has met its burden and demonstrated that “any current


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imbalance is not traceable, in a proximate way” to its prior dual school system.

Freeman, 503 U.S. at 494.

The United States cannot, and does not, dispute the evidence used by

Huntsville to satisfy its burden of proof under Freeman and Holton: the testimony

of Connie Graham and this Court’s findings in its August 14, 1974 Order. The

United States admits that the Court made a finding that Huntsville was “well

integrated” in its August 14, 1974 Order. (Ex. 5, p. 9). Mr. Cropper admitted in

his deposition that he has never considered Huntsville’s demographic shifts and

that he did not read or consider the Court’s August 1974 Order in his analysis of

Huntsville’s Plan. (Cropper Depo., pp. 118-127). In fact, Mr. Cropper admitted

that he “wasn't asked to look at the history [or to] look at the school district as of

1974.” (Id. at p. 125).

Cropper’s knowledge of Huntsville is limited to the 2012-2013 student

enrollment data and his visit to Huntsville in September of 2013. (Cropper Depo.,

pp. 39, 118-124). Despite having no knowledge of Huntsville’s history, Mr.

Cropper explains in his expert report that “[t]he existing attendance boundaries

create a racial divide between schools in the northeastern part of the district. This

racial divide still exists in the HCS proposed student assignment plan.” (Ex. 2 to


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Cropper Depo., p. 22).1 When asked “before you wrote that the existing

boundaries create a racial divide, did you ever look to see how long those

boundaries have been in existence?” Cropper answered, “No.” (Id.). When asked

“do you know what -- or when they were created what kind of racial divide there

was?” Mr. Cropper again answered, “No.” (Id.). Regarding his expert report, Mr.

Cropper admitted that “I'm talking about [the racial divide] as it relates to 2012-13.

I'm not talking about the history of the boundaries.” (Id.).

In other words, Mr. Cropper did not consider evidence that Freeman and

Holton deem necessary – namely, history of demographic changes following the

effective desegregation of a district – but, instead, Cropper formed an opinion

based on a single point in this case’s 50-plus year history. (See Cropper Depo., p.

118, 124-125). Binding precedent does not allow such a short-sighted view of a

school district’s history. Freeman, 503 U.S. at 474 (“Proper resolution of any

desegregation case turns on a careful assessment of its facts.”). Based on Mr.

Cropper’s admissions, any opinion he renders about the cause of any racial divide

in Huntsville is pure speculation. Such speculative testimony is not admissible

evidence, see, e.g., Robinson v. Ford Motor Co., 967 F. Supp. 482, 487 n.2 (M.D.

Ala. 1997) (“An opinion which is mere speculation . . . does not assist the trier of

1 During his deposition, Cropper clarified the meaning of this statement by explaining that the 2012-2013 student enrollment data show that “north of [interstate I-565] the schools, high schools in particular, are predominantly black, and south of [interstate I-565] they're particularly white.” (Cropper Depo., p. 117-118).


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fact, and thus, is inadmissible under Rule 702 of the Federal Rules of Evidence.”),

and is insufficient to refute Huntsville’s evidence.

Additionally, there is no evidence in the record that controverts

Huntsville’s position that it has acted in good faith to further desegregate its

schools. (See Exs. 1-12 to Doc. 299). In fact, when asked about the issue of good

faith in an interrogatory, the United States answered “that it makes no contention

regarding Defendants’ exercise of good or bad faith in performing their duties

under the court orders entered in the above-styled case.” (Ex. 5, p. 6).

Huntsville has submitted undisputed evidence that demonstrates that it has

met the burden required by Freeman and Holton. Huntsville has shown that the

racial imbalances in its school are not vestiges of its prior dual system.

Accordingly, any judicial action, other than granting Huntsville’s pending motion,

would run afoul of Freeman and Holton.

C. Huntsville’s Proposed Assignment of the Students Who Live In Butler High’s Boundary Is Constitutional

Huntsville has demonstrated that the racial composition of its schools,

including Butler High and Johnson/Jemison High, are not a vestige of Huntsville’s

prior dual school system. See Sections II.A, II.B, supra. However, the United

States’ principal argument in opposition to Huntsville’s Plan stems from

Huntsville’s proposed transfer of students from Butler High to Jemison High.


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(Doc. 287, p. 12). This argument fails in light of the teachings of Holton and

Freeman.

Huntsville’s Plan reassigns the students who currently live in Butler High’s

boundary because Huntsville is closing Butler High. Under Huntsville’s Plan,

47.9% of Butler’s live-in students will shift from a school that is 67.6% Black

(Butler High) to a school that is 90.3% Black (Jemison High). (See Ex. 2 to

Cropper Depo., pp. 12, 15, 16). The United States argues that this is evidence of

Huntsville’s failure to satisfy its constitutional obligations. (Doc. 287, p. 12-13).

The United States is mistaken.

As per Freeman, “[t]hat there [i]s racial imbalance in student attendance

zones [i]s not tantamount to a showing that [Huntsville] [i]s in noncompliance with

the decree or with its duties under the law.” Freeman, 503 U.S. at 494. To better

understand Freeman, it is important to understand the racial imbalance that existed

in the district from Freeman:

during the 1986–1987 school year DCSS had the following features: (1) 47% of the students attending DCSS were black; (2) 50% of the black students attended schools that were over 90% black; (3) 62% of all black students attended schools that had more than 20% more blacks than the system-wide average; (4) 27% of white students attended schools that were more than 90% white; (5) 59% of the white students attended schools that had more than 20% more whites than the systemwide average; (6) of the 22 DCSS high schools, five had student populations that were more than 90% black, while five other schools had student populations that were more than 80% white; and (7) of the 74 elementary schools in DCSS, 18 are over 90% black, while 10 are over 90% white.


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Freeman, 503 U.S. at 476-77 (emphasis added).

It was against this backdrop that the Supreme Court ruled that resegregation

and other racial imbalances caused by private choice are not vestiges of a prior

unconstitutional system. See Id., 503 U.S. at 495-96 (“[w]here resegregation is a

product not of state action but of private choices, it does not have constitutional

implications. It is beyond the authority and beyond the practical ability of the

federal courts to try to counteract these kinds of continuous and massive

demographic shifts.”) (emphasis added). Indeed, the Supreme Court held that

“[o]nce the racial imbalance due to the de jure violation has been remedied, the

school district is under no duty to remedy imbalance that is caused by demographic

factors.” Freeman, 503 U.S. at 494 (citing Swann v. Charlotte-Mecklenburg Bd. of

Ed., 402 U.S. 1, 31–32 (1971)).

The record establishes that Huntsville has remedied the racial imbalance

caused by its prior de jure violation. See Sections II.A, II.B, supra. Huntsville,

therefore, no longer has a duty to pursue racial balance in its schools. Freeman,

503 U.S. 494 (“Racial balance is not to be achieved for its own sake. It is to be

pursued when racial imbalance has been caused by a constitutional violation.”).

The United States argues that Huntsville has such a duty and that

implementation of Huntsville’s Plan would run afoul of that duty. This argument

finds no support in Freeman or its Eleventh Circuit progeny, see, e.g., Holton v.


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City of Thomasville School Dist., 425 F.3d 1325, 1338 (11th Cir. 2005);

N.A.A.C.P., Jacksonville Branch v. Duval County School, 273 F.3d 960, 974 (11th

Cir. 2001); Manning ex rel. Manning v. School Bd. of Hillsborough County, Fla.,

244 F.3d 927, 941, 944 (11th Cir. 2001); U.S. v. State of Ga., Meriwether County,

171 F.3d 1333, 1339 (11th Cir. 1999), and it must fail.

III. The Record Establishes that Huntsville’s Plan Furthers Desegregation A. Standard Applicable to Huntsville’s Motion

The standard that a district must prove for unitary status is more onerous

than the standard for approval of a student assignment plan. Compare Manning ex

rel. Manning v. School Bd. of Hillsborough County, Fla., 244 F.3d 927, 942 (11th

Cir. 2001) with Harris by Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090,

1094-95 (11th Cir. 1992). To achieve unitary status, a district must prove that it

“ha[s] eliminated the vestiges of past discrimination to the extent practicable.”

Manning, 244 F.3d at 942. However, Huntsville’s motion does not seek a

declaration of unitary status.

To prevail on its motion, Huntsville need only prove that its Plan: 1) does

not have “the effect of perpetuating or reestablishing a dual school system”; 2) “[its

Plan] further[s] desegregation and help[s] to eliminate the effects of the previous

dual school system”; and 3) that Huntsville “consider[ed] or include[d] the

objective of desegregation in [its] decisions regarding the [Plan].” Harris, 968 F.2d


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at 1094-95. The Court must view the elements of this standard in light of

Freeman: Huntsville can only further desegregation to the extent that segregation

exists in its district, and likewise, Huntsville can only eliminate the effects of its

prior dual school system to the extent they remain. See Section II, supra.

Huntsville has desegregated its schools and any racial imbalance in its

schools are the product of private choices, which under Freeman are not subject to

judicial remedy. Id. However, as a sign of good faith and as a matter of policy,

Huntsville’s Plan promotes diversity in its schools and equitable access to

educational opportunities for all students in its district. (See Doc. 298, pp. 27-49).

B. The Record Establishes that Huntsville’s Motion Meets the Applicable Standard

In its prior filings, Huntsville discussed its Plan in great detail and will not

repeat those details in their entirety in this brief. (Doc. 298, pp. 27-49). No

evidence produced during discovery controverts any position that Huntsville took

in its principal brief regarding its Plan.2 In fact, Huntsville’s previous evidentiary

2 Huntsville’s principal brief contained an error in its description of how the numbers listed as “Lee Magnet” were calculated in the chart in Ex. A to Huntsville’s motion. (Doc. 298, p. 31). Regarding the data labeled “Current Live In + Magnet,” Huntsville explained that “[t]hese numbers do not include the students who have been approved for one of the transfers allowed, such as M-to-M, to enroll in a school outside of their assigned zone. These data do, however, account for students who attend a magnet program.” (Id.). This statement is true as to every number listed on the chart except for the data labeled “Lee Magnet.” The “Lee Magnet” enrollment number, listed as 322 on Ex. A to Huntsville’s motion, represents the number of students who were enrolled at Lee High School but live in another high school’s boundary. There were 157 students enrolled in the Lee High Magnet Program during 2012-2013 school year. (See Ex. 7). The remaining 165 students, who represent the difference between the


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submissions and the deposition testimony taken during discovery are substantially

similar and demonstrate that Huntsville has met its evidentiary burden.

1. Huntsville’s Plan Does not Perpetuate or Reestablish a Dual School System

First and foremost, it is beyond dispute that Huntsville does not currently

operate a dual system. Huntsville, like the district in Freeman, effectively

desegregated its schools at an earlier point in time. See Section II, supra; (Doc.

298, pp. 7-27). Because Huntsville does not operate a dual school system, none of

Huntsville’s actions can perpetuate a dual school system.

The record does not support the conclusion that Huntsville’s actions

reestablish a dual school system for three reasons. First, Huntsville’s Plan revises

its elementary, middle, and high school attendance boundaries in order to increase

the live-in enrollment of Black students at predominantly White schools and vice

versa. (See Ex. A to Doc. 281, p. 21) (showing an increase in Black live-in

population for each of the following schools: Blossomwood (9% to 27%), Chaffee

(14% to 19%), Jones Valley (5% to 19%), Whitesburg (27% to 33%), Huntsville

322 total transfer students at Lee High and the 157 students enrolled in the Lee High Magnet Program, represent those students who have transferred to Lee High under one of Huntsville’s transfer policies. (See Ex. 6 to Cropper Depo.). Because these transfer students will be allowed to remain enrolled at Lee High under Huntsville’s Plan, this methodology for calculating the “Lee Magnet” students should not meaningfully impact either party’s analysis. (See Ex. 6 to Cropper Depo.)(setting out Huntsville’s transfer policies).


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Middle (9% to 16%), Grissom High (8% to 12%), and Huntsville High (10% to

12%); showing a decrease in Black live-in population for each of the following

schools: Morris Elementary (58% to 51%), Westlawn (56% to 48%), and Johnson

(Jemison) High (93% to 91%); (Doc. 298, p. 33). Mr. Cropper’s testimony

supports this fact. (Cropper Depo., pp. 173-82) (admitting improvement in the

live-in enrollment at the following schools: Blossomwood Elementary, Jones

Valley Elementary, Chaffee Elementary, Ridgecrest Elementary, Whitesburg P-8

School, Huntsville Middle School, Huntsville High School, Grissom High School,

and Johnson/Jemison High School). Because Huntsville has increased the live-in

enrollment of Black students at predominantly White schools and vice versa – and

expects larger increases once it accounts for its transfer students – Huntsville is

absolutely not regressing toward a dual school system.

Second, Huntsville’s Plan demonstrates Huntsville’s commitment to

continuing to strengthen its magnet programs district wide. (Ex. C to Doc. 281);

(Doc. 298, pp. 38-39); (See Ex. 14 to Doc. 299, ¶¶ 30-34) (Pickens Depo., pp. 24-

25). Huntsville has and continues to strengthen its magnet programs because these

programs promote voluntary integration. (Ex. C to Doc. 281); (Doc. 298, pp. 38-

39); (See Ex. 14 to Doc. 299, ¶¶ 30-34); (Pickens Depo., pp. 129). As such,

Huntsville will increase the number of seats available at its magnet programs. (Ex.

C to Doc. 281, p.4) (setting out Huntsville’s plan to add 100 seats over four years


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to the art magnet at Lee High School and to New Century Technology School);

(Doc. 298, p. 48).

Huntsville is already in the process of implementing its Plan regarding its

magnet programs. (Pickens Depo., pp. 24-30, 103-105, 139). Huntsville has hired

a magnet coordinator, Tammy Summerville, and has hired a magnet consultant,

Caroline Massengill, to aid Huntsville with its goal of continuing to strengthen

magnet programs. (Doc. 298, p. 47); (Pickens Depo., pp. 24, 26-28). These

initiatives are not required by the 1970 Singleton Order or any subsequent court

order, but are evidence of Huntsville’s good faith to provide all students in

Huntsville high-quality programs in desegregated schools.

Third, Huntsville’s Majority-to-Minority (“M-to-M”) transfer policy

increases the enrollment of Black students at predominantly White schools and

vice versa. (See, e.g., Cropper Depo., pp. 152-54, 166-68) (admitting that there are

currently a number of Black students who have transferred to Huntsville High and

Grissom High and admitting that this would increase the percentage of Black

students enrolled at Huntsville High and Grissom High under Huntsville’s Plan);

(see also Ex. 3 to Richter Depo., p. 7) (discussing the M-to-M students who enroll

at Huntsville High and Grissom High). Huntsville’s M-to-M policy helps ensure

that Huntsville’s Plan will not reestablish a dual school system.


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In sum, Huntsville’s Plan does not, and will not, reestablish its prior dual

school system. To the contrary, it is yet another step forward.

2. Huntsville’s Plan Furthers Desegregation and Helps to Eliminate the Effects of the Previous Dual School System

The evidence discussed in the previous section also establishes that

Huntsville’s plan furthers desegregation and helps eliminate the effects of its prior

dual school system. Namely, 1) Huntsville’s Plan revises its school attendance

boundaries in order to increase the live-in enrollment of Black students at

predominantly White schools and vice versa; 2) Huntsville’s Plan demonstrates its

commitment to continuing to strengthen its magnet programs because these

programs promote voluntary integration; and 3) Huntsville’s M-to-M policy

increases the enrollment of Black students at predominantly White schools and

vice versa.

The Eleventh Circuit has emphasized that, to prove this element, Huntsville

does not have to show that its Plan is “the most desegregative alternative

available.” Jacksonville Branch, N.A.A.C.P. v. Duval County School Bd., 978 F.2d

1574, 1583 n. 14 (11th Cir. 1992) (citing Lee v. Anniston City School Sys., 737

F.2d 952, 956 (11th Cir. 1984). Therefore, any contention by the United States

that Huntsville’s Plan is not “the most desegregative alternative available” is

insufficient to defeat Huntsville’s motion.


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3. Huntsville Considered Diversity In Its Plan

In its principal brief, Huntsville detailed its consideration of desegregation in

developing its Plan, and following discovery, it remains undisputed that Huntsville

considered desegregation in the development of its Plan. (Doc. 298, pp. 29-30);

(see also Ex. 16 to Doc. 299, ¶ 10). For example, the testimony of Dr. Wardynski,

Huntsville’s Superintendent, and Tracy Richter, Huntsville’s demographer,

demonstrate that Huntsville considered “desegregation,” “diversity,” and “racial

balance” in crafting Huntsville’s Plan. (Richter Depo., pp. 139, 141, 147, 178,

219) (explaining that Huntsville considered racial balance and that Huntsville’s

goal was to increase diversity in its schools ); (Wardynski Depo., pp. 47, 51, 64,

178-179, 244-245) (explaining that Huntsville considered desegregation as part of

its process to develop its Plan); (Ex.3 to Richter Depo., p. 2). There is no evidence

in the record to refute the testimony of Mr. Richter and Dr. Wardynski, and their

testimony demonstrates that Huntsville adequately considered desegregation in its

Plan.

In conclusion, this Court should grant Huntsville’s motion because the

record not only establishes that Huntsville met its burden under Freeman and

Holton, see Section II, supra, but it establishes that Huntsville has met its burden

for approval of its motion for student assignment.


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IV. The Department of Justice’s Proposed Student Assignment Scenarios Are Not Feasible and Run Afoul of Lee v. Anniston City Schools

Huntsville’s Plan meets, and exceeds, the burden set out by binding

precedent. See Sections II, III, supra. Despite the fact that Huntsville’s Plan is

constitutional on its face, the United States has proposed two different student

assignment scenarios in Exhibits E.1 and E.2 to its Response and Objections to

Defendants’ Motion for Approval of Defendants’ Student Assignment Plan

(“scenario E.1” and “scenario E.2,” respectively). (Doc. 287, pp 20-24); (see also

Exs. E.1, E.2 to Doc. 287). Freeman and Holton, discussed above, preclude

adoption of either scenario. See Section II, supra.

Even if Freeman and Holton were inapplicable, scenarios E.1 and E.2 are

infeasible and recommend changes that “constitute a significant intrusion into the

educational policymaking powers of [Huntsville] . . . [that] a federal court would

be unjustified in imposing.” Lee v. Anniston City School Sys., 737 F.2d 952, 956

(11th Cir. 1984) (citing Milliken v. Bradley, 433 U.S. 267, 280-81 (1977). For

these reasons, this Court should not adopt either scenario.

A. United States’ E.1 Scenario Is Not Feasible and Recommends Significant Intrusions Into Huntsville’s Educational Policymaking Powers

Mr. Cropper describes scenario E.1, referred to as Option 1 in his expert

report, as follows:


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In [E.1], Blossomwood, Monte Sano, and Jones Valley would be converted from PK-5 grade schools to PK-6 grade schools. University Place Elementary School (Sonnie Hereford) feeds into the new McNair Middle School and Jemison High School in [Huntsville’s] proposed student assignment plan. In [E.1], Sonnie Hereford would feed into Huntsville Middle School and Huntsville High School. Westlawn Middle School feeds partially into Columbia and Huntsville High Schools in [Huntsville’s] student assignment plan. [E.1] has all of Westlawn Middle School feeding into Columbia High School.

(Ex. 2 to Cropper Depo. at p. 16); (Cropper Depo., pp 108-110). Scenario E.1

modifies Huntsville’s proposed feeder patterns and the grade configuration of

multiple schools. The Eleventh Circuit has held that such proposals, even if they

lead to increased desegregation, impermissibly intrude on a school district’s

educational policymaking powers if that school district has acted in good faith to

desegregate its schools. See Lee v. Anniston City School Sys., 737 F.2d at 956

(ruling that adopting an alternative grade structure for a school “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.”). Therefore, scenario E.1 runs

afoul of Anniston and should not be adopted.


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Moreover, during discovery, it became clear that scenario E.1, if adopted by

Huntsville, would create utilization3 problems for Blossomwood Elementary, Jones

Valley Elementary, McNair Middle School, and Jemison High School.

Additionally, scenario E.1 unnecessarily increases the Black live-in enrollment at

McNair Middle and Jemison High.

1. Blossomwood Becomes Significantly Overcrowded

Scenario E.1 converts Blossomwood Elementary School from a PK-5 to a

PK-6 grade configuration. (Ex. 2 to Cropper Depo., p. 16); (Cropper Depo., pp.

108-110); (Ex. 3 to Richter Depo., p. 5). Mr. Cropper has calculated that

Blossomwood’s live-in enrollment, under scenario E.1, creates a program

utilization of 106.9%. (Ex. 2 to Cropper Depo., p. 19); (Cropper Depo., p. 112);

(Ex. 3 to Richter Depo., p. 5). This over-utilization makes E.1 infeasible for three

reasons.

First, Huntsville has expressed its desire to reduce excess space in schools

while minimizing or eliminating overcrowding. (Wardynski Depo., p. 20-21); (Ex.

13 to Doc. 299, ¶¶ 16-21). On its face, scenario E.1 is incongruent with this goal

because it makes Blossomwood “seriously over capacity.” (Wardynski Depo., pp.

173-174).

3 Utilization is calculated by dividing the number of students enrolled at a school by that school’s capacity. (Cropper Depo., pp. 68-69). Utilization measures how full a school is based on its enrollment. If a school is at 75% utilization, the school building is 75% full. (Ex. 2 to Cropper Depo., pp. 6-8).


22

Second, Mr. Cropper’s program utilization analysis only accounted for the

students who would live in Blossomwood’s boundary. (Cropper Depo., p. 111).

During his deposition, Mr. Cropper confirmed that his analysis did not consider

“any transfer students, majority to minority, [or] any other kind of transfer.” (Id. at

pp. 111, 183-84). Blossomwood has traditionally accepted a considerable number

of transfer students under Huntsville’s Majority-to-Minority (“M-to-M”) transfer

policy.4 (Richter Depo., at pp. 221-223).

Huntsville has recently modified its M-to-M transfer policy – Policy 6.3.1.

(See Ex. 6 to Cropper Depo.). In its Response and Objections to Defendants’

Motion for Approval of Defendants’ Student Assignment Plan, the United States

gave an incomplete description of Huntsville’s modified Policy 6.3.1: “The District

has . . . discontinued a policy that allowed students transferring through the

Majority-to-Minority (“M-to-M”) transfer program in elementary or middle school

to continue on to high school in that feeder pattern.” (Doc. 287, p. 15). The United

States failed to mention that Huntsville “grandfathered” all students who

transferred to a school under Huntsville’s M-to-M policy before the 2014-2015

school year. (Cropper Depo., p. 84); (Ex. 6 to Cropper Depo.). However, during

his deposition, Mr. Cropper admitted the existence of this “grandfather” provision.

(Cropper Depo., pp. 84-85) (admitting that Huntsville’s Policy 6.3.1 will allow

4 This program allows students who are part of the racial majority at a school to transfer to a school at which they would be the racial minority. (See Ex. 6 to Cropper Depo.).


23

“students who were granted majority-to-minority transfers prior to the 2014-15

school year [to] remain in the school cluster to which the transfer was granted

through the 12th grade.”). Regardless, these modifications to Policy 6.3.1 will

have no effect on Blossomwood because students who receive M-to-M transfers to

Blossomwood, under both the old and modified Policy 6.3.1, will continue to

remain at that school through its highest grade. (See Ex. 6 to Cropper Depo.).

To date, all students who are enrolled at Blossomwood pursuant to the M-to-

M policy will not only be able to continue their enrollment at Blossomwood, but

will be allowed to continue on to Huntsville Middle and Huntsville High. Because

scenario E.1 converts Blossomwood into an over-utilized PK-6 school based solely

on live-in enrollment, each student who enrolls at Blossomwood pursuant to

Huntsville’s M-to-M policy will increase Blossomwood’s over-utilization. (Ex. 3

to Richter Depo., p. 5); (Richter Depo., at pp. 221-223). Such over-utilization is

infeasible. (Wardynski Depo., p. 173); (Richter Depo., at pp. 221-223).

Third, scenario E.1, which is based on 2012-2013 student enrollment data,

(Ex. 2 to Cropper Depo., p. 3), does not account for increases or decreases in

enrollment. (Ex. 3 to Richter Depo., p. 5). Mr. Richter explains in his expert report

that “Blossomwood’s kindergarten class for the 2013-2014 school year was over

80 students more than the 2012-2013 school year.” (Id.). Richter opines that

“[t]his dramatic rise in kindergarten enrollment w[ould] fill the capacity of


24

Blossomwood in its current Pk-5 [configuration], and the addition of a sixth grade

level would only contribute to overcrowding in the facility.” (Id.).

In sum, by converting Blossomwood to a PK-6 school, scenario E.1 fills

Blossomwood over its capacity before even accounting for known transfer students

and its increasing enrollment. For these reasons, scenario E.1 is infeasible.

2. Jones Valley Becomes Significantly Over-Utilized

Scenario E.1’s proposed changes to Jones Valley are infeasible for the same

reasons that scenario E.1’s changes for Blossomwood are infeasible. Namely,

scenario E.1’s conversion of Jones Valley from a PK-5 to a PK-6 school will leave

Jones Valley over capacity at 104.1% based solely on live-in enrollment. This

over-utilization of Jones Valley leaves no room for its increasing live-in enrollment

or its known M-to-M transfers, and is, therefore, infeasible. (Ex. 2 to Cropper

Depo., p. 19); (Ex. 3 to Richter Depo., p. 5); (Wardynski Depo., P. 173).

3. Shifting Sonnie Hereford to the Huntsville Middle-Huntsville High Feeder Pattern Creates Under-Utilization and Increases Black Live-In Enrollment for McNair Middle and Jemison High

The Department of Justice’s scenario E.1 shifts Sonnie Hereford Elementary

from the McNair Middle-Jemison High feeder pattern to the Huntsville Middle-

Huntsville High feeder pattern. (Ex. 2 to Cropper Depo., p. 16); (Cropper Depo.,

pp. 108-110); (Ex. 3 to Richter Depo., pp. 5-6). The goal of this proposition is to

increase the percentage of Black students in the Huntsville Middle-Huntsville High


25

feeder pattern. (See. Doc. 287, pp. 21-22); (Ex. 2 to Cropper Depo., p. 16).

Huntsville does not dispute that moving Hereford into the Huntsville Middle-

Huntsville High feeder will increase the number of Black students who live in the

Huntsville Middle and Huntsville High school boundaries. (Richter Depo., p.

232); (Wardynski Depo., p. 179-181). However, moving Hereford to the

Huntsville Middle-Huntsville High feeder pattern creates problems that make

scenario E.1 infeasible and undesirable. (Wardynski Depo., pp. 174-181).

First, the shift of Hereford’s students from the McNair-Jemison feeder

pattern will increase the live-in Black percentage at both McNair and Jemison.

(Ex. 3 to Richter Depo., pp. 6-7); (Richter Depo., p. 226); (Wardynski Depo., pp.

177-181). Hereford has the highest percentage of live-in non-Black students of the

feeder elementary schools for the McNair-Jemison feeder pattern. (Ex. 2 to

Cropper Depo., p. 19); (Ex. 3 to Richter Depo., pp. 6-7); (Wardynski Depo., pp.

177-181). Therefore, removing Hereford’s students from the McNair-Jemison

feeder pattern will necessarily increase the Black student percentage at both

McNair and Jemison. (Ex. 3 to Richter Depo., pp. 6-7); (Wardynski Depo., pp.

177-181).

Second, the shift of Hereford’s students from the McNair-Jemison feeder

pattern results in a significant decrease in the live-in enrollment of students in the

McNair-Jemison feeder pattern. This will have a negative impact on the program


26

utilization of both schools. In its principal brief, Huntsville described the United

States’ erroneous method for calculating the program utilization of Jemison,5

which the United States incorrectly contends would be 125%. (Doc. 287, p. 14). In

reality, shifting Hereford from the McNair-Jemison feeder pattern results in

McNair and Jemison being significantly under-utilized. (Wardynski Depo., pp.

175-77) (testifying that shifting Hereford from the McNair-Jemison feeder pattern

would result in approximately 150 fewer students at McNair and approximately

250 fewer students at Jemison).

5 In its principal brief, Huntsville highlighted and explained the United States’ error: in its proposal to free up space at Jemison, it failed to account for students who live-in the Jemison boundary but who attend a magnet program. (See Doc. 298, pp. 35-36). This error is also found in Cropper’s Expert Report. (Ex.2 to Cropper Depo., p. 15). Cropper fails to account for the known magnet transfers from Johnson in his analysis of Huntsville’s Plan, and this results in his erroneous conclusion that Huntsville’s Plan would over-utilize Jemison at 125%. (Id.). Notwithstanding his erroneous expert report, during his deposition, Cropper admitted that if the students who live in Jemison’s boundary but who attend Lee High and New Century continue to do so – as is Huntsville projects – the utilization of Jemison would be no higher than “104.7%,” not 125%. (See Cropper Depo., pp. 154-65). This 104% figure does not account any transfers, M-to-M or otherwise, from the Johnson/Jemison boundary. (Id. at p. 155). Accounting for those transfers, Jemison’s program utilization will likely be closer to 91.8%. (Ex. 2 to Cropper Depo., pp. 9, 16) (adding Johnson’s actual enrollment to the projected Butler students who will be assigned to Jemison results in an actual enrollment for Jemison equal to 1010 (560+450); this results in a program utilization of 91.8% (1010 students divided by a program capacity of 1100)). Tracy Richter’s expert report also supports analysis:

There are currently 110 students who live-in the Jemison boundary but who are identified as M to M students. These students would be grandfathered under the District’s Plan and would be allowed to continue their enrollment at Huntsville High and Grissom High. This will free up room at Jemison High School.

(Ex. 3 to Richter Depo., p. 7).


27

Such significant under-utilization is incongruent with Huntsville’s goal of

reducing excess space while eliminating overcrowding in schools. (Wardynski

Depo., pp. 20-21); (Ex. 13 to Doc. 299, ¶¶ 16-21). Additionally, reducing the

student enrollment at McNair and Jemison will make it more difficult to effectively

offer the broad course programming that Huntsville plans to offer at these schools.

(Wardynski Depo., p. 176-177).

Given the foregoing, scenario E.1 is infeasible. Additionally, Dr. Wardynski

has testified that aspects of E.1 will run counter to Huntsville’s policy decisions.

(Wardynski Depo., pp. 20-21, 178-179, 182-184); (Ex. 13 to Doc. 299, ¶¶ 16-21).

Both Huntsville and Dr. Wardynski are unquestionably qualified and empowered

to make educational policy judgment calls; Matthew Cropper is not. (Cropper

Depo., p. 189) (testifying that he has no experience in the field of education); see

Lee v. Anniston City School Sys., 737 F.2d at 955 (“school authorities have the

primary responsibility for elucidating, assessing and solving the[] problems

[presented by a desegregation order] . . . Consistent with this principle, one factor

to consider when reviewing a proposed remedy is the interests of state and local

authorities in managing their own affairs, consistent with the Constitution.”)

(internal citations and quotations omitted); cf. Monteilh v. St. Landry Parish

School Bd., 848 F.2d 625, 631-32 (5th Cir. 1988) (“federal courts lack the


28

expertise and competence needed to dictate to school boards the location of new

schools and the drawing of attendance zones.”).

For these reasons, scenario E.1 should not be adopted.

B. United States’ E.2 Scenario is Infeasible Because It Retains E.1’s Problems and Creates Transportation Safety Concerns

Mr. Cropper describes scenario E.2, referred to as Option 2 in his expert

report, as follows:

Under [E.2], the changes are nearly identical to those in [E.1]. The differences are that Monte Sano would remain a PK-5 grade school and feed into Chapman for grades 6-8 and Lee High School for 9-12 grades. Montview Elementary School would become a PK-6 grade school and would feed into Huntsville Middle and Huntsville High Schools.

(Ex. 2 to Cropper Depo., p. 17); (Cropper Depo., pp 112-114). E.2 retains all of

E.1’s problems, detailed in Section IV.A above. As a result of E.2’s shift of Monte

Sano Elementary from the Huntsville Middle-Huntsville High feeder pattern to the

Chapman Middle-Lee High feeder pattern, E.2 presents transportation safety

problems not present in scenario E.1. (Ex. 2 to Cropper Depo., p. 17); (Cropper

Depo., pp 112-114).

In his expert report, Mr. Richter described the transportation safety problems

that shifting Monte Sano to the Chapman Middle-Lee High feeder would cause.

(Ex. 3 to Richter Depo., p. 8). Mr. Richter explained that “[t]he change to Monte

Sano’s feeder pattern in scenario E.2 would require Monte Sano students either to


29

take an unsafe travel route or to physically pass another middle school

(Huntsville Middle) to get to their assigned school (Chapman Middle).” (Id.)

(emphasis added). Given these two transportation options, Mr. Richter opined that

“[s]tudents living in the Monte Sano boundary do not have adjacency access to

Chapman Middle due to road conditions.” (Id.).

These road conditions do not appear on a road map of Huntsville. (Ex. 3 to

Richter Depo. p. 8). In fact, “on a map[,] the boundaries for Monte Sano and

Chapman appear to be adjacent[; however], the road that connects them, called

Bankhead Parkway, has been deemed unsafe for bus traffic due to grade and

configuration of the road.” (Id.). To avoid Bankhead Parkway, “Monte Sano

students would have to travel Governors Drive to have access to Chapman

Middle.” (Id.). Mr. Richter concludes that scenario E.2 requires “students in the

Monte Sano boundary [to] travel directly, and literally, past Huntsville Middle

School to get to Chapman Middle School.” (Id.); (see also Richter Depo., p. 233).

The record supports Mr. Richter’s conclusions. (See, e.g., Wardynski

Depo., pp 182-84). During his deposition, Mr. Cropper admitted: that he knows

that Bankhead Parkway has signage forbidding access to trucks longer than thirty

feet, that some school busses exceed thirty feet in length, and that student


30

transportation for Monte Sano’s students could be a “con” of scenario E.2.

(Cropper Depo., pp. 38, 192).6

The law empowers Huntsville to make policy decisions regarding the

transportation safety of its students. See Lee, 737 F.2d at 956 (affirming the

district court’s finding that transportation safety concerns were sufficient to reject

alternative the plaintiff’s proposed alternatives). Huntsville does not view student

transportation between Monte Sano and Chapman Middle as viable. (Wardynski

Depo., pp 182-84). Under Eleventh Circuit precedent, this is sufficient to defeat

scenario E.2.

Ultimately, E.2 retains all of E.1’s problems but adds transportation safety

issues for Monte Sano’s students. For these reasons, scenario E.2 is not a viable

alternative to Huntsville’s Plan, and should not be adopted.

* * *

CONCLUSION

Huntsville’s currently-pending motion presents a narrow issue: does Huntsville’s

Plan satisfy the requirements of the Constitution. Huntsville has detailed the

reasons that its Plan meets and exceeds its constitutional obligations, and the

record bears this out. The United States quibbles with and second-guesses

6 For the Court’s benefit, Huntsville has submitted as part of its evidentiary submission a video that depicting bus travel up and down Bankhead Parkway and bus travel on Governors Drive from Huntsville Middle School to Monte Sano and Governors Drive from Monte Sano to Huntsville Middle School. (See Ex. 6).


31

Huntsville’s policy decisions, but such reasons are insufficient to defeat

Huntsville’s motion. There is no ground, in law or in fact, before this Court

sufficient to deny Huntsville’s motion, and, therefore, Huntsville’s motion should

be granted.

RESPECTFULLY SUBMITTED this 16 May 2014.

s/ J. R. Brooks J. R. Brooks Maree F. Sneed Christopher M. Pape Attorneys for Defendants OF COUNSEL LANIER FORD SHAVER & PAYNE, P.C. P. O. Box 2087 Huntsville, AL 35804 Phone: 256-535-1100 Fax: 256-533-9322 MAREE SNEED Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 Phone: 202-637-5600 Fax: 202-637-5910


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CERTIFICATE OF SERVICE

I hereby certify that on May 16, 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: Norman Chachkin, [email protected]

Shaheena Simons, [email protected]

Sarah Hinger, [email protected]

Andrea Hamilton, [email protected] Praveen Krishna, [email protected] Kelly Gardner, [email protected]

/s/ J. R. Brooks J. R. Brooks


mailto:[email protected]





Documents

Case 5:63-cv-00109-MHH Document 324 Filed 05/16/14 Page 1 ...media.al.com/breaking/other/hsvmay16.pdf · Freeman and Holton teach that a Court is not authorized to order a school