ANDERSON, Circuit Judge:
Plaintiffs-appellants, who represent a class of black children and their parents residing in Talladega County, Alabama, brought this suit against the Talladega County Board of Education, its individual members, and the Talladega County School Superintendent (collectively referred to as "the Board").
I. FACTS
The Talladega County Board of Education has had a long history of involvement in
For over a decade, the Talladega County public schools operated under federal court supervision. On November 7, 1983, however, the Talladega County Board of Education filed a motion requesting that the district court relinquish jurisdiction over the Talladega County schools. See Lee v. Talladega County Board of Education, 963 F.2d 1426, 1428 (11th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1257, 122 L.Ed.2d 655 (1993). The Board later amended its motion by filing a resolution, adopted on November 22, 1983, stating that the Board would operate the school system "at all times so as to conform with the United States Constitution, laws passed by Congress, and all previous orders of" the district court. See id.; Plaintiffs' Trial Exhibit 49. On March 13, 1985, federal court supervision of the Talladega County schools came to a close when the district court, pursuant to a Joint Stipulation of Dismissal,
All the actions plaintiffs challenge in this case were taken after the district court declared the Talladega County school system unitary. The actions challenged principally involved four Talladega County Schools: the Talladega County Training High School ("the Training School"),
The Training School is an historically black school which continued to have a virtually all-black student population up to the time of trial. At the time of trial, the Training School served grades K-12. Jonesview was an historically white grades K-6 school; the proportion of black students at the school increased during the 1980's and in the 1988-89 school year the school was 65% black. Idalia was historically a white grades K-6 school located in a white community. In 1986 the Idalia facility burned down; Idalia's K-4 students thereafter attended school in portable classrooms at the Idalia site, while its grade 5 and grade 6 students were transferred to another middle school. During the 1988-89 school year, Idalia's K-4 student population was 46% black. Hannah Mallory was an historically black grades K-6 school until 1985, when it was closed; its student population was 100% black during that year.
On July 22, 1985—shortly after the district court relinquished jurisdiction over the Talladega County schools—the Board adopted a resolution to close the Hannah Mallory Elementary School. Talladega County School Superintendent Lance Grissett thereafter subdivided the Hannah Mallory attendance zone into three parts. One section was assigned to the Jonesview school zone, another section was assigned to the Childersburg school zone, and the third section was assigned to the Training School zone. The
Two years after the closing of Hannah Mallory, in June 1987, the Board approved the purchase of a site immediately adjacent to the Idalia school for the construction of a new, 500-pupil consolidated elementary school, to be named the Stemley Bridge Road School.
The closing of Hannah Mallory and the carrying out of the Stemley Bridge Road School construction plans took place in the context of a somewhat unstable student population. The white student population was particularly unstable. In recent years adjacent school districts had made several attempts to annex portions of the Talladega County school district that contained large proportions of white students. In 1982 or 1983 the Oxford City school system had attempted to annex a part of the Talladega County school district, an action that would have removed a large number of white students from a majority-white attendance zone. In 1984, the city of Sylacauga had sought to annex portions of the Talladega County school district that contained a large proportion of white students, and in 1986 the city made a similar attempt.
While all three annexation attempts failed, and thus did not actually result in the loss of white students from the County school system, the County system was losing white students through another route: a number of white students, although still residing in the County, were arranging to attend school in neighboring school systems.
The Board took active steps to prevent the annexation attempts. In response to the Oxford City annexation attempt, the Board filed a motion in the Lee v. Macon County litigation in an effort to stop the annexation. In response to the first Sylacauga annexation
As the Board was carrying out its school restructuring plans, a group of black parents became concerned about the changes. While the Board did not divulge the specifics of its plans to the general public, these parents had learned from the newspaper that property had been purchased at the Idalia site for the purpose of building a school. The parents also saw in the newspaper a list of bids for the renovation of several schools which did not include the Training School. The parents were troubled because they perceived that the Board was neglecting the Training School and they feared that the Board planned to close the Training School entirely.
In early 1988, the black parents made several written attempts to inform the School Superintendent and the Board of their desire to present their concerns at a Board meeting. Superintendent Grissett responded to one letter, and Dr. Morris, the Board president, responded to another, but at least one of the letters was not answered by either the Superintendent or any Board member. Dr. Morris's letter did not disclose the Board's plan to close grades K-6 of the Training School, although the parents' letter had expressed concern that the Training School would be closed, and the plan to close grades K-6 had already been made at the time Dr. Morris wrote his response.
Over the course of the year, the parents made a number of unsuccessful attempts to obtain information regarding the Board's school restructuring plans. The group attempted to obtain from the Board a copy of its desegregation plan and subsequent compliance and status reports, but no one responded to their written request. The group wrote to the principals of Idalia, Jonesview, and the Training School requesting student and faculty assignment data, but none of the requested information was provided. In a letter dated May 18, 1988, counsel for the parents contacted the Board's attorney and requested information regarding new construction and school closing plans with respect to the Training School, Jonesview, and Idalia. In his written response of June 23, 1988, the Board's attorney did not inform the parents of the Board's plan, already approved by the state, to close grades K-6 at the Training School. The Board's attorney also stated that the Board had no plans to change the use of the Jonesview School, although the Board at that time had already planned to close the school. Finally, two parents attempted to obtain copies of minutes of the Board's meetings. On May 12, 1988, the Board had passed a resolution prohibiting the recording of its proceedings in any manner by anyone other than the official
II. PROCEDURAL HISTORY
On December 5, 1988, plaintiffs, representing a class of black children and their parents residing in Talladega County, Alabama, brought suit against the Talladega County Board of Education, its individual members, and the Talladega County School Superintendent, claiming that defendants' recent actions violated the Fourteenth Amendment equal protection clause, Title VI of the Civil Rights Act of 1964, the United States Department of Education regulations promulgated pursuant to Title VI, the First Amendment, and Alabama Code § 36-12-40 ("the Alabama Open Records Act"), and that certain of defendants' actions constituted a breach of contract. See R1-1. On the same day, plaintiffs moved for a preliminary injunction to prohibit the Board from beginning construction of the Stemley Bridge Road School on the property adjacent to the Idalia site. See R1-6. On December 12, 1988, defendants moved to dismiss the complaint, and to deny the plaintiffs' motion for a preliminary injunction. See R1-7, 10. On December 29, 1988, the district court dismissed the First Amendment claim, the Alabama Open Records Act claim, and the breach of contract claim. See R1-13. The district court also denied plaintiffs' motion for a preliminary injunction, and ruled that evidence of events occurring before March 13, 1985, the date of the order declaring that the Talladega County school system had attained unitary status, would not be considered.
On January 10, 1989, the district court denied the plaintiffs' motion for admission pro hac vice of three attorneys from the NAACP Legal Defense Fund, on the ground that a victory for the plaintiffs might result in an undue burden on Talladega County taxpayers. See R1-20. On January 30, 1989, the district court allowed the pro hac vice admission of one attorney. See R1-30. On May 26, 1989, plaintiffs moved to add the Talladega City Board of Education ("the City Board") as a defendant. See R1-62. On June 1, 1989, the district court denied the motion on the ground that it was filed after the court's May 5, 1989 deadline for adding parties. See R1-63.
After a trial held on August 21, 22, and 23, 1989, on the Fourteenth Amendment and Title VI claims, the district court determined that defendants had not acted with discriminatory intent, that their actions did not have a discriminatory effect on blacks, and that defendants had offered legitimate, non-discriminatory reasons for their actions. The district court therefore concluded that plaintiffs had failed to demonstrate any violation of the Fourteenth Amendment, Title VI, or the Title VI regulations, and thus denied them relief on any of these claims. See R2-93.
Plaintiffs appealed the district court's denial of relief, and on April 30, 1991, this court per curiam vacated the judgment of the district court, holding that it had abused its discretion in denying pro hac vice admission of two of the NAACP Legal Defense Fund attorneys and in denying plaintiffs' motion to add the Talladega City Board of Education as a party defendant, 933 F.2d 1020. See R2-106. We remanded with directions that the district court grant the motion for leave to add the City Board as a party, grant the motion for admission pro hac vice of the two attorneys, permit any additional discovery that was necessary, and conduct any additional evidentiary hearings determined to be appropriate. See id.
Stating that they had no additional evidence to offer in the categories or time frame prescribed by the district court, the plaintiffs moved to cancel the supplementary hearing. See R2-126. On January 7, 1992, the district court granted that motion. See R2-127. It then adopted the Findings of Fact and Conclusions of Law it had entered on September 19, 1989, following the August 1989 trial, and entered final judgment in favor of the defendants. See id.; R2-128. Plaintiffs now appeal, arguing that the district court erred in deciding that they had failed to demonstrate any Fourteenth Amendment, Title VI, or Title VI regulations violation; in dismissing their breach of contract, First Amendment, and Alabama Open Records Act claims; in refusing to require defendants to provide discovery regarding any matter prior to the 1985-86 school year; and in denying their request to supplement the record on remand after the first appeal.
III. STANDARDS OF REVIEW
We review the district court's findings of fact for clear error. Fed.R.Civ.P. 52(a); Newell v. Prudential Ins. Co. of America, 904 F.2d 644, 649 (11th Cir.1990) (citations omitted). A finding is clearly erroneous when "`although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). We review the district court's legal conclusions de novo. Newell, 904 F.2d at 649 (citations omitted). More specifically, we review the district court's findings as to whether the Board engaged in intentional discrimination for clear error, see Pullman-Standard v. Swint, 456 U.S. 273, 286, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982), and we review the district court's fact findings relevant to the Title VI regulations disparate impact inquiry for clear error. However, we review de novo the legal significance attributed to these findings by the district court. We also review de novo the dismissals of the breach of contract claim and the First Amendment claim for failure to state a claim.
We review the district court's refusal to exercise pendent jurisdiction over the Alabama Open Records Act claim for abuse of discretion. See Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1531 (11th Cir.1983). We also review for abuse of discretion the district court's orders denying plaintiffs' request to supplement the record on remand and refusing to require defendants to comply with discovery requests regarding events occurring prior to the 1985-86 school year.
IV. DISCUSSION
A. FOURTEENTH AMENDMENT AND TITLE VI CLAIMS
On appeal, plaintiffs argue that the district court erred in determining that not one of four challenged Board actions violated either the Fourteenth Amendment equal protection clause or the Title VI implementing regulations.
1. Legal Standards
The Fourteenth Amendment equal protection clause provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. To establish an equal protection clause violation, a plaintiff must demonstrate that a challenged action was motivated by an intent to discriminate. See, e.g., Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Washington v. Davis, 429 U.S. 229, 239-48, 96 S.Ct. 2040, 2047-52, 48 L.Ed.2d 597 (1976). Discriminatory intent may be established by evidence of such factors as substantial disparate impact, a history of discriminatory official actions, procedural and substantive departures from the norms generally followed by the decision-maker, and discriminatory statements in the legislative or administrative history of the decision. Arlington Heights, 429 U.S. at 265-69, 97 S.Ct. at 563-65. Discriminatory intent may be found "even where the record contains no direct evidence of bad faith, ill will or any evil motive on the part of public officials." Williams v. City of Dothan, Ala., 745 F.2d 1406, 1414 (11th Cir.1984).
Title VI of the Civil Rights Act of 1964 provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. While Title VI itself, like the Fourteenth Amendment, bars only intentional discrimination, the regulations promulgated pursuant to Title VI may validly proscribe actions having a disparate impact on groups protected by the statute, even if those actions are not intentionally discriminatory. See Guardians Ass'n v. Civil Service Comm'n of New York City, 463 U.S. 582, 584 n. 2, 103 S.Ct. 3221, 3223 n. 2, 77 L.Ed.2d 866 (1983); Alexander v. Choate, 469 U.S. 287, 292-94, 105 S.Ct. 712, 716, 83 L.Ed.2d 661 (1985); Georgia State Conference of Branches of NAACP v. State of Georgia, 775 F.2d 1403, 1417 (11th Cir.1985). The United States Department of Education ("the Department of Education") has promulgated regulations pursuant to Title VI that prohibit recipients of its funds from taking certain actions to the extent that those actions have a disparate impact on groups protected by the statute. The Board receives some of its funding from the Department of Education, and is therefore subject not only to the duty of nondiscrimination mandated by Title VI, but also to the duties of nondiscrimination mandated by the Department of Education regulations promulgated pursuant to Title VI. Since the district court evaluated the challenged Board actions under the Title VI disparate impact analysis, as well as the Fourteenth Amendment equal protection analysis, and since the Board did not object to the district court's choice of legal standards, we assume arguendo that the actions challenged by plaintiffs fell within the scope
To establish liability under the Title VI regulations disparate impact scheme, a plaintiff must first demonstrate by a preponderance of the evidence that a facially neutral practice has a disproportionate adverse effect on a group protected by Title VI.
The plaintiff's duty to show that a practice has a disproportionate effect by definition requires the plaintiff to demonstrate a causal link between the defendant's challenged practice and the disparate impact identified. Thus, the plaintiff cannot make out a prima facie disparate impact claim if the evidence tends to show that even had the defendant not engaged in the challenged practice, the same disparate impact would nonetheless have existed. Cf. United States v. Lowndes County Board of Education, 878 F.2d 1301, 1305 (11th Cir.1989) ("racial imbalance in the public schools amounts to a constitutional violation only if it results from some form of state action and not from factors, such as residential housing patterns, which are beyond the control of state officials."); Freeman v. Pitts, ___ U.S. ___, ___, 112 S.Ct. 1430, 1447, 118 L.Ed.2d 108 (1992) (same).
Having laid out the legal standards applicable to plaintiffs' equal protection and Title VI regulations claims, we now address plaintiffs' contention that the district court erred in determining that not one of four challenged Board actions violated either the equal protection clause or the Title VI regulations.
a. Siting of the New Consolidated School
Plaintiffs challenge the Board's decision to place the new consolidated elementary school at the site adjacent to Idalia. They claim that the Board could just as easily have consolidated the Jonesview, Idalia, and Training School elementary grades at the Training School, either by adding on to existing space at the Training School or by constructing entirely new elementary facilities. According to plaintiffs, the Board's decision to place the new school at the Idalia site instead of at the Training School site not only had an unjustifiable disparate impact on black students in violation of the Title VI regulations, but also was the product of discriminatory animus in violation of the equal protection clause. The district court determined that "[t]he plaintiffs have not shown that the location of the new Stemley Bridge Road School was racially motivated or effected a disparate impact on blacks," R2-93-15, and therefore decided in defendants' favor on both the equal protection and the Title VI regulations siting claims. See R2-93-21-22.
i. Challenge Under Equal Protection Clause
Plaintiffs argue that the district court clearly erred in determining that the Board's decision to locate the new consolidated elementary school adjacent to Idalia did not violate the equal protection clause, because according to plaintiffs the Board's decision to place the new school next to Idalia was motivated by discriminatory intent. They point to several factors which they claim demonstrate that discriminatory animus drove the Board's siting decision.
After carefully considering the entire record, we conclude that the district court did not clearly err in finding that the Board's siting decision was not motivated by discriminatory
As for plaintiffs' proffered evidence of discrimination, the district court did not clearly err in rejecting it as unpersuasive. The district court apparently determined plaintiffs' allegations of "planned underutilization" of the Training School to be unfounded, since it found that the Board actually hoped to attract more students to the Training School by renovating it. See R2-93-18. Neither
As for plaintiffs' claim that the Board erected barriers to their participation in the process of school restructuring, we agree with the district court's finding that there was no evidence that the Board sought opinions from parents of students who would be affected by the consolidation of Jonesview, Idalia, and grades K-6 of the Training School. See R2-93-8. We also agree with the district court's finding that the Board had delayed in providing the public generally with information regarding developments under consideration. See R2-93-19. The district court also properly recognized that through its attorney's June 23, 1988 letter, the Board provided the black parents' group with misleading information regarding its plans. See R2-93-10.
However, the district court ultimately found no evidence that the Board's failure to be forthcoming with information regarding its plans was motivated by racially discriminatory animus; rather, the district court found that the Board was reluctant to share information with black parents and white parents alike. See R2-93-8, 19. The district court did not clearly err in making this finding. Of course, common sense indicates that ordinarily, public servants will readily receive and even solicit input from their constituents; the failure to do so may in some instances give rise to reasonable inferences of ulterior motive. Likewise, school board consultations with black parents may be evidence of a lack of discriminatory intent. See, e.g., Lee v. Anniston City School System, 737 F.2d 952, 957 (11th Cir.1984). However, we cannot conclude on this record that the district court clearly erred in finding that the Board's treatment of plaintiffs was not motivated by racially discriminatory animus. Thus, the district court did not clearly err in rejecting the evidence as demonstrating intent to discriminate in siting the new school.
With respect to plaintiffs' cost argument, the district court found that the expense of constructing new elementary facilities for about 550 Idalia, Jonesview, and Training School elementary students would have been approximately the same whether the school was located next to Idalia or at the Training School site. See R2-93-4. In so finding, it appears that the district court implicitly rejected plaintiffs' contention that the Board could have relied in part on existing space at the Training School to accommodate the 550 students, and implicitly found instead that placing the new school at the Training School site would have required constructing entirely new elementary facilities, as was necessary at the Idalia site. Thus, it appears that the district court implicitly rejected plaintiffs' argument that by placing the new school at the Training School site instead of at the Idalia site the Board could have saved money by not having to build entirely new elementary facilities. We cannot conclude that these findings are clearly erroneous. As already discussed, the Board needed to use the existing elementary space at the Training School for the grades 7-12 renovations; thus, that space could not have been used for the new consolidated elementary school. In this context, it was not clearly erroneous for the district court to find that the Board would have had to pay the cost of constructing entirely new facilities even if the new school had been placed at the Training School site.
Finally, the district court did not discuss plaintiffs' evidence regarding the Board's history of closing or downgrading historically black schools. We assume that the district court did consider the evidence, and that its silence indicates its rejection of the evidence as demonstrating discriminatory animus.
ii. Challenge Under Title VI Regulations
Plaintiffs also argue that the district court erred in determining that the Board's siting decision did not have a disparate impact on blacks and thus that plaintiffs had failed even to make a prima facie showing that the siting decision violated the Title VI regulations. See R2-93-15, 22; see supra Part IV.A.1. They contend that siting the new school next to Idalia, in a white community, had a disparate impact on blacks in at
Each of the effects identified by plaintiffs might well constitute a disparate impact, and we assume arguendo that plaintiffs have demonstrated disparate impact. However, we need not decide this question because we conclude that the Board has demonstrated a substantial legitimate justification for its siting decision. Under the Title VI disparate impact scheme, once plaintiffs have demonstrated a disparate impact, defendants bear the burden of demonstrating that their challenged practice is supported by a "substantial legitimate justification." Georgia State Conference, 775 F.2d at 1417. Most Title VI disparate impact cases in the educational context have involved challenges to the classification of students by ability through the use of standardized tests and other methods. See, e.g., Georgia State Conference of Branches of NAACP v. State of Georgia, 775 F.2d 1403 (11th Cir.1985) (challenge to use of achievement grouping in Georgia public schools); Larry P. By Lucille P. v. Riles, 793 F.2d 969 (9th Cir.1984) (challenge to use of certain IQ tests to assign children to classes for educable mentally retarded); cf. Sharif by Salahuddin v. New York State Educ. Dept., 709 F.Supp. 345 (S.D.N.Y.1989) (Title IX disparate impact challenge to use of Scholastic Aptitude Test to allocate state merit scholarships; court borrows Title VI disparate impact standards). In these cases, defendants attempting to meet the "substantial legitimate justification" burden have commonly been required to demonstrate the "educational necessity" of their practices, that is, to show that their challenged practices "bear a manifest demonstrable relationship to classroom education." Georgia State Conference, 775 F.2d at 1418; see also Larry P., 793 F.2d at 982 & n. 9 (defendant must demonstrate that "the requirement which caused the disproportionate impact was required by educational necessity," i.e. that "any given requirement has a manifest relationship to the education in question"); cf. Sharif, 709 F.Supp. at 361 (quoting Georgia State Conference); Groves v. Alabama State Board of Education, 776 F.Supp. 1518, 1530-32 (M.D.Ala.1991) (in post-Wards Cove, pre-Civil Rights Act of 1991 Title VI disparate impact education case, defendants required to produce evidence that challenged practice significantly justified by legitimate educational rationale); Board of Education v. Harris, 444 U.S. 130, 151, 100 S.Ct. 363, 375, 62 L.Ed.2d 275 (1979) (defendant may rebut showing of disparate impact in Emergency School Aid Act case by proving "educational necessity" of challenged practice). The Title VI regulations education cases tend not to explain explicitly what it means to show that a challenged practice has a "manifest relationship to classroom education." However, from consulting the way in which these cases analyze the "educational necessity" issue, it becomes clear that what the cases are essentially requiring is that defendants show that the challenged course of action is demonstrably necessary to meeting an important educational goal. Such necessity is considered a substantial legitimate justification for the challenged practice. See, e.g., Georgia State Conference, 775 F.2d at 1417-18; cf. Sharif, 709 F.Supp. at 361.
Although the defendants in this case are responsible for the administration of educational institutions, the decision challenged in the instant claim—the Board's decision to place the new school adjacent to Idalia rather than at the Training School site—is more accurately characterized as an infrastructure planning decision, rather than as an educational policy decision such as the decision to use testing to group students by ability. Since infrastructure planning decisions are not educational in a narrow sense, it seems inappropriate to ask defendants to show that their siting decision was necessary to meeting an educational goal in a narrow sense. It is more reasonable in a case like this to ask that defendants meet the more abstract requirement which underlies the context-specific
We believe that defendants have met the requirement of showing that the challenged siting decision was necessary to meeting such a goal. Defendants claim that they could not place the new consolidated school at the Training School site because adequate land for expansion was not available adjacent to the Training School. Defendants adduced evidence in support of their claim that adequate land for expansion was not available at the Training School site, and the district court made a finding to that effect, a finding we have already deemed not clearly erroneous. Since adequate land on which to place the new consolidated elementary school facilities was not available at the Training School site, the Board is obviously correct that it was not feasible to place the new school at the Training School site, and that it was therefore necessary to place the new school elsewhere in order to achieve the goal of building the school. We think it clear that the goal of building the new consolidated school was legitimate, important, and integral to the Board's educational mission. Thus, defendants have shown that because of the lack of adequate land for expansion at the Training School site, placing the new school somewhere besides at the Training School site was necessary to achieving a legitimate, important goal integral to the Board's educational mission: the goal of building the school. Since defendants have demonstrated the necessity of their school siting decision, they have demonstrated a substantial legitimate justification for that decision.
Because plaintiffs are unable to meet their ultimate burden, they cannot prevail on their Title VI siting challenge. Regarding the pretext issue, we have already concluded in the course of our equal protection analysis that the district court did not clearly err in finding that the lack of adequate land for expansion at the Training School site and the consequent necessity of placing the new school elsewhere (along with other legitimate considerations), rather than discriminatory animus, drove the Board's siting decision. Thus, plaintiffs cannot show that this justification was pretextual. As for the possibility of a less discriminatory alternative, since the district court properly found that the land the Board needed for expansion simply was unavailable at the Training School site, obviously plaintiffs cannot demonstrate that placing the new school at that site would have been comparably as effective as placing it at the Idalia site. Since plaintiffs have proffered no other alternative sites, they have not met their ultimate burden of proof; thus, the district court properly decided in defendants' favor on the Title VI regulations challenge to the siting of the new school.
b. The Board's Failure to Make Coextensive the Stemley Bridge Road School and Training School Grades 7-12 Attendance Zones
Once they realized they could not stop the construction of the new consolidated school at the Idalia site, plaintiffs urged the
i. Challenge Under Equal Protection Clause
Plaintiffs argue that the district court clearly erred in failing to find that the Board's choice of attendance zones was racially motivated. They cite two factors as evidence of the Board's discriminatory intent. First, they point to Superintendent Grissett's conflicting trial testimony regarding the attendance zones, and his alleged failure following trial to recommend the attendance zones he testified he would recommend. Second, they point to the underutilization of the Training School which they say would result from the Board's chosen attendance zones.
We do not believe that the district court clearly erred in rejecting plaintiffs' equal protection clause challenge to the Board's choice of attendance zones. It is true that Superintendent Grissett's trial testimony regarding attendance zones was somewhat inconsistent. At one point, he testified that he intended to abide by a pretrial affidavit, in which he had stated that "feeder patterns" for the Training School would not change—in other words, that grades 7-12 at the Training School would continue to be fed by students from the former Jonesview and Training School K-6 zones, and that students in the former Idalia zone would continue to attend Lincoln High School. See R4-268; R1-33-2. Later, when asked to draw the dividing line between students he expected to attend Lincoln and those he expected to attend the Training School, Superintendent Grissett drew a line which bisected the former Idalia zone, indicating that some students from that zone would be assigned to the Training School for grades 7-12. See R4-301-302; Defendants' Exhibit 30. It is unclear why Superintendent Grissett testified inconsistently; however, we do not think that the district court clearly erred in rejecting the inconsistency as evidence of discriminatory intent.
Plaintiffs also point to evidence that after trial, Superintendent Grissett did not recommend that any students from the former Idalia zone be assigned to the Training School for grades 7-12, despite the fact that the diagram he drew at trial indicated that
As for plaintiffs' argument that the alleged planned underutilization of the Training School could not be explained by anything other than discriminatory animus, we have already decided that the district court did not clearly err in rejecting the contention that the Board intended to underutilize the Training School, as well as in rejecting the contention that the high square foot/student ratio reflected a desire to segregate white and black students. See supra Part IV. A. 2. a. Under all the circumstances, we cannot conclude that the district court clearly erred in finding no racial motivation in defendants' decision to leave in place the pre-existing feeder patterns. Since a plaintiff must demonstrate discriminatory intent to recover under the equal protection clause, see supra Part IV. A. 1., and since these plaintiffs have not done so with respect to the Board's feeder patterns decision, we affirm the district court's judgment for defendants on the feeder patterns equal protection claim.
ii. Challenge Under Title VI Regulations
Plaintiffs also contend that the district court erred in deciding that they had failed to prove that the Board's choice of attendance zones had a disparate impact on black students, and thus that they had not even made a prima facie showing that the Board's attendance zone decision violated the Title VI regulations. See R2-93-22; see supra Part IV. A. 1. Plaintiffs argue that the Board's failure to send students from the former Idalia zone to the Training School for grades 7-12 produced a disparate impact on black students both because it increased the racial identifiability of the Training School and because it left the school underutilized and likely to be closed.
Certainly an increase in the racial identifiability of the Training School would constitute a disparate impact, and we assume arguendo that an increase in underutilization would also constitute a disparate impact. However, to succeed on their claim, plaintiffs had to show not only that a disparate impact existed, but also that the impact was causally linked to a Board policy or decision. See supra Part IV. A. 1. The district court clearly was not persuaded that the Board's attendance zone decision had any significant effect on the school's racial identifiability and level of utilization. The district court found as a fact that many white children zoned to attend the Training School for grades 7-12 never attended, and instead went to Talladega City or Sylacauga City schools. See R2-93-10, 11, 16. This finding is not clearly erroneous, particularly since no one disputes that the Training School was virtually all-black at all relevant times, even though some white students lived within its attendance zone.
c. The Board's Failure to Stop "Zone-Jumping" By White Students
Plaintiffs contend that many of the white children residing in Talladega County who are assigned to the Training School do not attend that school, and instead attend school out-of-district, in Talladega City. Plaintiffs contend that the Board has done nothing to stop such zone-jumping, and that the Board's inaction has violated both the equal protection clause and the Title VI regulations. The district court denied plaintiffs relief on both the equal protection and the Title VI regulations interdistrict transfer claims. See R2-93-21-22; R2-127.
Plaintiffs argue that the district court erred in failing to grant them relief on these claims. According to plaintiffs, the district court decided that the Board's interdistrict transfer policy violated both the equal protection clause and the Title VI regulations, but denied plaintiffs relief only because the Board, as a practical matter, could not prevent zone-jumping. See Plaintiffs' Brief on Appeal at 49. In plaintiffs' view, the district court believed that the Talladega City Board had prevented the Talladega County Board from stopping zone-jumping. See id. Plaintiffs point out that the Talladega City Board was added as a party on remand following the first appeal in this case. See R2-111. Once the district court had added the party that it believed had prevented the Talladega County Board from stopping zone-jumping, plaintiffs contend, there was no reason for the district court to have denied plaintiffs relief on the zone-jumping claims on remand. See Plaintiffs' Brief on Appeal at 49.
We believe that plaintiffs' view of the district court's opinion is inaccurate. The district court apparently denied plaintiffs relief on the interdistrict transfer claims because it concluded that the Talladega County Board's zone-jumping policy did not violate either the equal protection clause or the Title VI regulations. See R2-93-21-22. We conclude that the district court did not err in so ruling.
i. Challenge Under Equal Protection Clause
According to plaintiffs, the Board's failure to stop white students zoned for the Training
Second, plaintiffs claim, while the Board has failed to respond to the transfer of white students from the majority-black Training School, it has actively sought to prevent the loss of white students from majority-white schools. According to plaintiffs, the Board "has done nothing to stop" white students zoned for the Training School from zone-jumping to Talladega City schools. Plaintiffs' Reply Brief on Appeal at 19. In contrast, plaintiffs point out, on three occasions the Board took strong action against the loss of white students from majority-white schools: (1) the Board filed a motion in the Lee v. Macon County litigation in an effort to stop the early 1980's Oxford City annexation attempt; (2) the Board sought the assistance of the Justice Department to stop the city of Sylacauga's 1984 annexation attempt; and (3) in response to Sylacauga's second annexation attempt in 1986, the Board passed a resolution authorizing the Superintendent and the Board's attorney to take all appropriate action to prevent the annexation, and the Superintendent met with the Sylacauga Mayor, City Attorney, and City Clerk, and contacted the County's legislative delegation regarding the annexation attempt. According to plaintiffs, this pattern of selective Board action has been governed by the Board's discriminatory reluctance to make white students attend majority-black schools.
Finally, plaintiffs contend, that the County school district has been losing approximately $3000 for each interdistrict transfer underscores the fact that discriminatory motives have governed the Board's policy towards zone-jumping. Had the Board not wished to permit white students to "escape" the Training School, plaintiffs suggest, it would have taken more pains to retain school funds.
After reviewing the entire record, we cannot say that the district court clearly erred in finding that no discriminatory animus motivated the Board's interdistrict transfer policy. Regarding the Board's compliance with the transfer provision, we agree with plaintiffs that the transfer of white students from the Training School to Talladega City schools has had the effect of increasing the duality of the County school system. As we stated when interpreting a similar transfer provision in United States v. Lowndes County Board of Education, 878 F.2d 1301 (11th Cir.1989), transfers are deemed to increase the duality of a school system when they increase the racial identifiability of the schools in the system. Lowndes County, 878 F.2d at 1305. The effect of the transfers is to be measured on a school-by-school basis; the duality of the system as a whole is deemed to have increased when even one school experiences increased racial identifiability. Id. Thus, defendants are simply incorrect in asserting that, because the overall racial balances at Talladega County and Talladega City schools have not changed over the past twenty years, any zone-jumping could not have increased the duality of Talladega County schools. If the Board consented to transfers and those transfers increased racial identifiability solely at the Training School, the Board's actions would still have been inconsistent with the transfer provision.
Certainly the outflow of white students from the Training School zone may be said to have increased the racial identifiability of the Training School. Defendants do not contest plaintiffs' contention that fifty-four white students transferred out of district from the Training School zone in the 1988-89 school year, in contrast to only five black students. We agree with the district court's finding that many of those transferring were attempting to "avoid" the virtually all-black Training School, which they presumably perceived as a "black school." Had those white students attended the Training School, their presence would surely have reduced the perception of the Training School as a "black school"; conversely, their "avoiding" the Training School could only reinforce such perceptions.
However, although the zone-jumping of white students has increased the duality of the Talladega County school system, the transfer provision only forbids transfers exacerbating racial identifiability to the extent that the Board "consent[s]" to the transfers. We do not believe that the Board may be said to have consented to transfers which, as we discuss in the next section, it was powerless to prevent. Thus, we do not believe that the Board may be said to have violated the transfer provision with which it agreed to comply, and we cannot say that the district court clearly erred in rejecting this evidence as demonstrating discriminatory intent.
We are more troubled by the evidence that the Board has made a greater effort to keep white students from leaving majority-white attendance zones than it has made to keep white students from leaving majority-black attendance zones. Defendants do not dispute that in the past they have taken active measures to prevent Oxford City and Sylacauga City from annexing portions of the County school district containing large proportions of white students, nor that they have not been as active in combatting zone-jumping by white students zoned for the Training School. This disparity could support
We cannot conclude, however, that the district court clearly erred in failing to determine that this disparity demonstrated discriminatory intent. Several district court findings support the ultimate finding that the Board did not intend to discriminate against blacks in dealing with zone-jumping. First, the district court found that the Board does not condone zone-jumping, and that the Board clearly would like to halt it. See R2-93-15, 20. We cannot deem these findings clearly erroneous, as they have some support in the record; for example, Superintendent Grissett testified that the County's policy was not to allow interdistrict transfers. See R4-319-21. Second, the district court found that the Board had few, if any avenues to stop zone-jumping other than discouraging it by making improvements to the school system. See R2-93-20. As we explain in the next section, we cannot deem this finding clearly erroneous. See infra Part IV. A. 2. c. ii. Even if this were not true in fact, there is evidence that the Board did not believe there was much it could do to stop zone-jumping besides improving its system. Both the Talladega City and the Sylacauga City school superintendents testified that they knew of no way the Board could prevent a County student from attending either city's school if either city would accept the student, see R3-132-33 (Testimony of Talladega City School Superintendent Billy Mills); R5-541 (Testimony of Sylacauga City School Superintendent Joseph Morton), and Talladega County School Superintendent Grissett testified that he was not aware of any procedure for preventing another public system from accepting for enrollment a Talladega County child. See R4-324. Finally, the district court implicitly found that the Board had made at least some effort to stop zone-jumping, in making the explicit finding that one motivation for upgrading the Training School was the desire to discourage zone-jumping. See R2-93-18, 21. These findings are not clearly erroneous, as Superintendent Grissett did testify that the Training School renovations were intended in part to attract students who previously had been avoiding the school. See R4-314.
We cannot say that this record clearly indicates that the Board was intentionally failing to prevent zone-jumping because of a racist reluctance to make white students attend a majority-black school. Given that the Board disapproved of zone-jumping and wished to stop the practice, that the Board believed there was little it could do to stop zone-jumping besides improving its system, and that the Board was in fact upgrading the Training School partly in an effort to discourage zone-jumping, the district court could reasonably have concluded that the Board's failure to take stronger measures against zone-jumping was the product of its belief that such measures would be fruitless, rather than the product of racial animus.
ii. Challenge Under Title VI Regulations
According to plaintiffs, the Board's failure to prevent zone-jumping has not only violated the equal protection clause, but also has imposed an unjustifiable disparate impact on black students in violation of the Title VI regulations, by causing an increase in the racial identifiability of the Training School.
The district court, however, apparently concluded that the Board's zone-jumping policy
It appears from the first finding noted above that the district court accepted defendants' contention that zone-jumping could cause no disparate impact where it did not produce a change in the overall racial compositions of the transferor and transferee school districts. The district court erred in accepting this contention, for the lack of variation in overall racial composition does not end the Title VI regulations inquiry. As discussed above, the inquiry into whether transfers increase the duality of a school district is to be made on a school-by-school basis; an increase in the racial identifiability of one school is enough to increase the duality of that school's district as a whole in the way prohibited by court-ordered transfer provisions like Talladega County's.
However, the existence of a disparate impact also does not resolve the Title VI regulations inquiry. As discussed with respect to attendance zones, in addition to showing disparate impact, plaintiffs also had to demonstrate that the disparate impact was causally linked to a challenged Board policy. See supra Part IV.A.1. If zone-jumping and the increase in racial identifiability it produced would have occurred no matter what the Board did, the Board's policy towards zone-jumping could not be said to have caused the identified disparate impact and plaintiffs could not prevail under the Title VI regulations.
Plaintiffs contend that the Board could have taken several actions that would have reduced the zone-jumping problem. They claim that the Board could have stopped zone-jumping by refusing to transfer the records of students whom the Board determined
In finding that the Board was unable to prevent zone-jumping as a practical matter, the district court implicitly found that zone-jumping would have occurred no matter what actions were taken by the Board. In other words, the district court found that plaintiffs had not established that the Board's policy regarding zone-jumping was causally linked to the disparate impact identified. We cannot conclude that this finding is clearly erroneous. First of all, there was evidence that the Board could not have relied on the withholding of student records to combat zone-jumping; two witnesses testified that county superintendents could not legally withhold student records for any reason when the records were properly requested, see R3-133 (Testimony of Talladega City School Superintendent Billy Mills); R4-325 (Testimony of Talladega County School Superintendent Lance Grissett), although it is also true that we could not find a state law governing the transfer of student records, and that there is some question whether records requested by a student attempting to attend out-of-district are "properly requested."
The district court's conclusion that the Talladega County Board had not violated either the equal protection clause or the Title VI regulations, a conclusion we have just held proper, explains why it denied plaintiffs relief on their zone-jumping claims even after the Talladega City Board was added as a party, see R2-127. Given that the Talladega County Board did not violate either the equal protection clause or the Title VI regulations, the addition of the City Board as a party would have entitled plaintiffs to relief only under one of two sets of circumstances. First, plaintiffs would have been entitled to relief if they had proven that the City Board itself had violated the equal protection clause or the Title VI regulations. Second, even if plaintiffs could not have shown that the City Board itself had committed such violations, they would still have been entitled to relief if they had proven that the City Board and the County Board had violated the Title VI regulations through cooperative action. Proof of cooperation would have justified holding both municipal units liable for their combined actions, even if the actions of neither municipal unit alone had violated the Title VI regulations.
d. The Reassignment of Students Following the Closing of the Hannah Mallory Elementary School
According to plaintiffs, the manner in which the Board reassigned students upon the closing of the all-black Hannah Mallory Elementary School—i.e. the Board's sending most Hannah Mallory students to the Training School via a non-contiguous attendance zone—violated both the equal protection clause and the Title VI regulations. The district court did not make any explicit determinations on either claim. However, it did decide that plaintiffs had failed to establish that any of the challenged Board decisions were "tainted by a racially discriminatory animus," R2-93-21-22, and that plaintiffs had failed to establish that any of the challenged decisions had a disparate impact on blacks, see R2-93-22. Thus, it obviously decided that the challenged student reassignment plan violated neither the equal protection clause nor the Title VI regulations.
Plaintiffs argue that the district court erred in failing to decide that the challenged plan violated either the equal protection clause or the Title VI regulations. They support their equal protection claim by pointing to several factors which they say reveal the discriminatory animus underlying the Board's reassignment decisions. First, they refer to the provision in the County's court-ordered desegregation plan from Lee v. Macon County stating that "[a]ll school construction, school consolidation, and site selection (including the location of any temporary classrooms) in the system shall be done in a manner which will prevent the recurrence of the dual school structure once this desegregation plan is implemented." Plaintiffs' Trial Exhibit 49. They assert that in reassigning Hannah Mallory students the Board failed to honor its commitment to comply with this provision, and that this failure is evidence of discriminatory purpose. Second, plaintiffs argue, the fact that the Board had to create a non-contiguous attendance zone to assign Hannah Mallory students to the Training School strongly suggests that racial considerations governed the Board's reassignment plan. Finally, that assigning most of the Hannah Mallory students to the Training School caused overcrowding is strong evidence of discriminatory motives, plaintiffs assert, since absent an intent to segregate black children at the Training School one would not expect the Board to overtax a single school.
Plaintiffs support their Title VI regulations claim by citing evidence that the Board's reassignment plan had a disparate impact on black students at the Training School. They point out that assigning the bulk of Hannah Mallory students to the Training School increased the concentration of blacks at the school, thereby furthering segregation and hindering the desegregation process. They also point out that the assignment of Hannah Mallory students to the Training School burdened the students there in that it caused overcrowding and required the use of portable classrooms.
Since this litigation was filed, the Stemley Bridge Road School has been built and is being attended by students from the former Idalia, Jonesview, and Training School elementary
B. BREACH OF CONTRACT CLAIM
Relying on the fact that the Joint Stipulation of Dismissal in Lee v. Macon County incorporated the Board resolution stating that the Board would continue to comply with the court orders in Lee v. Macon County, see supra Part I, plaintiffs argue that an agreement to comply with the Lee v. Macon County orders is implicit in the Joint Stipulation of Dismissal. Since defendants have failed to comply with the Lee v. Macon County orders, plaintiffs contend, defendants are liable for breach of the agreement. The district court dismissed the breach of contract claim for failure to state a claim because it concluded that "where court orders or agreements implicit in court orders are a basis for relief, that basis should be pursued in" the litigation where those orders were entered, i.e. in Lee v. Macon County. R1-13-2.
Plaintiffs contend that we should reverse the district court's dismissal of their breach of contract claim. However, we are bound by our ruling in Lee v. Talladega County Board of Education, 963 F.2d 1426 (11th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1257, 122 L.Ed.2d 655 (1993), to affirm the district court's dismissal of the claim. Before filing the present action, plaintiffs had attempted to obtain relief on virtually the same claims by moving to reopen the Lee v. Macon County litigation. The Lee v. Macon County district court denied plaintiffs' motion to reopen the case, holding that they could obtain the relief they sought only by filing a new lawsuit. On appeal, we affirmed the denial of the motion to reopen. In affirming, we held that the "stipulation of dismissal [was] not a contract between the parties," and that the "incorporation of the [Board's] resolution did not create an enforceable contract," it being "plain that [the resolution] did not create any obligation enforceable against the [Board]." Lee v. Talladega County Board of Education, 963 F.2d at 1431-32. Having held that the Board's resolution to comply with the Lee v. Macon County orders did not create any enforceable obligation, we cannot now subject the Board to contract liability for any failure to comply with those orders. The district court thus properly dismissed plaintiffs' breach of contract claim for failure to state a claim.
Plaintiffs contend that the Board's May 12, 1988 resolution prohibiting the recording "in any manner" of its public meetings violates the First Amendment. They argue that the resolution impinges on the ability of black citizens who attend school board meetings to communicate to others their impressions of what takes place at those meetings. Thus, they claim, the resolution burdens their exercise of the rights of free speech and free association, and of the right to petition for redress of grievances.
The district court granted defendants' motion to dismiss the First Amendment claim for failure to state a claim without stating its reasons for doing so. See R1-13-2. Plaintiffs contend that we should reverse the district court's ruling as erroneous. We decline to review the dismissal in the absence of a statement of rationale, however. We therefore vacate the dismissal of the First Amendment claim and remand for a statement of reasons for the dismissal.
D. OTHER ISSUES ON APPEAL
1. Pendent Jurisdiction
In its December 29, 1988 order, the district court declined to exercise pendent jurisdiction over plaintiffs' claim under Ala. Code § 36-12-40, the Alabama Open Records Act. See R1-13-2-3. Plaintiffs argue that this ruling constituted an abuse of discretion. However, we hold that the district court did not abuse its discretion in declining to exercise pendent jurisdiction over the claim.
2. Evidence Regarding Events Occurring Before 1985-86 School Year
In its December 29, 1988 order, the district court stated that the only evidence it would consider regarding the Fourteenth Amendment equal protection and Title VI claims would be that concerning events occurring since March 13, 1985, the date that Talladega County was dismissed from the Lee v. Macon County litigation. See R1-133. The district court consequently refused to require defendants to provide discovery regarding any matters occurring prior to the 1985-86 school year. See R1-49-2. Plaintiffs wished the district court to consider evidence regarding school closings and restructurings that had occurred before March 13, 1985; they claim that the district court's rulings constituted an abuse of discretion because facts regarding past school closings or restructurings could be evidence that present Board actions were discriminatorily motivated.
We agree with plaintiffs that actions taken by the Board prior to the 1985-86 school year could be evidence that later Board actions were discriminatorily motivated. However, it appears to us that the district court actually did consider school closings and restructurings occurring prior to March 13, 1985, for it accepted both testimony and exhibits regarding those matters. See, e.g., R3-41-44 (Testimony of lead plaintiff and Talladega County parent Augustus Elston); Defendants' Exhibit 4; Plaintiffs' Trial Exhibit 49; see also supra Part IV. A. 2. a. i. Under these circumstances, we find no error in the district court's rulings regarding pre-1985-86 evidence.
3. Evidence Regarding Post-Trial Events
On remand following the first appeal to this court, plaintiffs sought to supplement the record with evidence regarding the Board's final choice of attendance zones for the Stemley Bridge Road School and the Training School and regarding interdistrict transfers. See R2-123. All the proffered evidence involved events occurring after the August 1989 trial. The district court refused to consider any evidence of events occurring subsequent to the close of the evidence at trial on August 23, 1989, including the evidence contained in plaintiffs' offer of proof on remand, on the ground that such an expansion of the lawsuit was not warranted. See R2-117; R2-125; R2-127. According to plaintiffs, this refusal constituted an abuse of discretion.
We hold that the district court did not abuse its discretion in refusing to supplement the record on remand with evidence of post-trial events. Of course, our holding is no bar
V. CONCLUSION
For the foregoing reasons, we affirm the district court's judgment for defendants on the Fourteenth Amendment, Title VI, and Title VI regulations claims. We also affirm the district court's dismissal of the breach of contract claim and of the Alabama Open Records Act claim, and we affirm the district court's rulings regarding the receipt of evidence of events occurring before March 13, 1985, or after August 23, 1989. However, we vacate the district court's dismissal of plaintiffs' First Amendment claim and remand the case with instructions.
AFFIRMED in part, VACATED in part, and REMANDED.
FootNotes
The district court refused to consider plaintiffs' offer of proof on remand because the evidence proffered involved events occurring after August 23, 1989, the last day of trial, and it did not believe that an expansion of the lawsuit was warranted. See R2-117; R2-125; R2-127. As discussed below, we do not believe that the district court abused its discretion in so ruling. See infra Part IV. D. 3. Thus, for the purposes of this appeal, we are only evaluating Board actions regarding zone-jumping that were taken on or before August 23, 1989, the last day of trial. However, our holdings here are no bar to a future suit challenging Board actions regarding zone-jumping that were taken since trial.
See R1-83-7-8.
Section 100.3(b)(3) provides that
See also Georgia State Conference, 775 F.2d at 1417 & n. 18.
Throughout the trial of this case, the parties and the district court operated on the assumption that the scheme articulated in Georgia State Conference applied. Neither party has questioned this assumption on appeal. Because we conclude that plaintiffs are not entitled to relief even under the more relaxed standard under which they litigated, we need not decide whether Wards Cove required the reallocation of the burden of persuasion on justification in Title VI disparate impact cases litigated after Wards Cove was decided but before the Civil Rights Act of 1991 became law.
We note that both parties and the district court appeared to assume that, if the new school had been placed at the Training School site, regardless of whether entirely new facilities would have been needed or whether some of the existing space at the Training School could have been used for the new school, the Board would have had to acquire a fairly substantial amount of land adjacent to the Training School in order to accommodate the consolidated elementary students. In other words, everyone seemed to take as a given that, whatever new facilities would have been needed, those facilities could not simply have been placed on existing Training School land (i.e. land the Board already owned). We assume that this is true, since the parties and the district court did so.
The district court on remand refused to consider evidence regarding post-trial events, including this annexation evidence, and we have held that it did not abuse its discretion in doing so. See infra Part IV. D. 3. Thus, we do not consider the evidence here. We are only evaluating Board actions regarding zone-jumping that were taken on or before the last day of trial. However, our holdings here are no bar to a future suit challenging Board actions regarding zone-jumping that were taken since the close of evidence at trial on August 23, 1989.
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