FILED

Case 5:63-cv-00109-MHH Document 439-1 Filed 03/16/15 Page 1 of 8

2015 Mar-16 AM 10:43

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www.naacpldf.org

March 9, 2015
The Honorable Madeline H. Haikala
United States District Judge
United States District Court for the
Northern District of Alabama
1729 5th Ave North
Birmingham, AL 35203
Re:

Proposed Consent Order, Hereford v. Huntsville Board of

Education, No. 5:63-cv-00109-MHH

Dear Judge Haikala:

On behalf of the signatories below, the NAACP Legal Defense and
Educational Fund, Inc. (LDF) submits this letter to bring several concerns
regarding the Proposed Consent Order filed on February 24, 2015 in Hereford v.
Huntsville Board of Education, No. 5:63-cv-00109-MHH, ECF Doc. No. 411-1,
Exhibit A (CONSENT ORDER) to this Courts attention. The Proposed Consent
Order purportedly provides a roadmap for Huntsville City Schools (Huntsville or
District) to attain unitary status. We respectfully suggest, however, that some
components of the Proposed Consent Order may forestall the Districts efforts to
adequately dismantle the dual school system in Huntsville.
Since its founding in 1940 by Thurgood Marshall, LDF has relied on the
Constitution, as well as federal and state civil rights laws, to pursue equality and
justice for African Americans and other people of color. LDF has represented
plaintiffs in nearly every significant case addressing racial discrimination in
education, including Brown v. Board of Education, 347 US 483 (1954).1 In 1963,

See, e.g., Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 572 U.S. __
(2014); Missouri v. Jenkins, 515 U.S. 70 (1995); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S.
1 (1971); Green v. County School Bd., 391 U.S. 430 (1968); Fisher v. University of Texas at Austin,
758 F. 3d 633 (5th Cir. 2014); Thomas v. School Bd. St. Martin Parish, 756 F. 3d 380 (5th Cir. 2014);
Little Rock School Dist. v. Arkansas, 664 F. 3d 738 (8th Cir. 2011); Manning ex rel. Manning v. Sch.
Bd. of Hillsborough County, Fla., 244 F.3d 927 (11th Cir. 2001); Lockett v. Bd. of Educ. of Muscogee
Cnty. School Dist., 111 F.3d 839 (11th Cir. 1997); Bradley v. Pinellas Cnty. School Bd., 961 F. 2d
1554 (11th Cir. 1992).
1

LDF has been a separate organization from the NAACP and its state branches since 1957.

NAACPLEGALDEFENSEANDEDUCATIONALFUND,INC.

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LDF, on behalf of African-American students and parents, filed Hereford v.

Huntsville and several other lawsuits that first prompted the integration of public
schools in Huntsville and across Alabama. Through the use of such litigation and
policy advocacy, LDF has sought to eliminate the barriers to equality and
opportunity that are wrought by racial discrimination. This depth of experience
informed our five decades long role as counsel in this matter. Although LDF is no
longer counsel in this case, because of our institutional mission and previous
involvement in this matter, LDF was invited by the signatories to offer the
comments below in the hopes that they will prove useful to this Court, the United
States Department of Justice (the United States) and the District.
As this Court is aware, the Parties must assess each of the Green factors in
order to determine whether a school district is fulfilling its affirmative obligations
to eliminate the vestiges of the prior dual school system. These factors are: student
assignment; faculty; staff; transportation; extracurricular activities; and facilities.
Green v. Cnty. School Bd. of New Kent Cnty., 391 U.S. 430, 435-42 (1968). The
Supreme Court has also approved consideration of additional factors, such as
quality of education. Freeman v. Pitts, 503 U.S. 467, 491-92 (1992). For a district
to fulfill its affirmative duties, school officials are obligated to not only avoid any
official action that has the effect of perpetuating or reestablishing a dual school
system, but also to render decisions that further desegregation and help to
eliminate the effects of the previous dual school system. Harris v. Crenshaw Cnty.
Bd. Of Educ., 968 F.2d 1090 (11th Cir. 1992).
Here, our concerns center on whether the Proposed Consent Order
adequately addresses the factors of student assignment, faculty, transportation, and
quality of education.
Student Assignment.
The crux of a desegregation case is the student assignment plan. But, the
Proposed Consent Decrees student assignment plan is burdened by three
troublesome weakness: (1) a lack of enforceable desegregation goals; (2) a Majorityto-Minority (M-to-M) transfer program that neither adequately addresses the
interests of Black students, nor complies with legal precedent; and (3) magnet
schools that do not operate as desegregation tools.
First, remedial criteria in desegregation cases must provide sufficient
specificity to assure a school authoritys compliance with its constitutional duty.
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 26 (1971). Here, however, the

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Proposed Consent Decrees standards for determining Huntsvilles compliance with

its affirmative obligations are, at best, ambiguous, and will likely prove difficult to
enforce going forward. For example, [f]or each magnet school/program, the District
will aim for a racial enrollment that is within plus or minus 15 percentage points of
the District-wide racial composition. CONSENT ORDER p. 17. The decrees aim for
language creates dangerously vague measures while inexplicitly rejecting standard
by grade-level criteria for desegregation. See, e.g., Bradley, 961 F.2d at 1555.
Worse, desegregation goals in the magnet schools will occur only to the extent
practicable, CONSENT ORDER pp. 22-23, and, in the middle and high schools, all
admissions to the magnets are selective, abandoning desegregation goals entirely.
Id. at 20-23. Additional ambiguities appear elsewhere. For example, student
assignments to the Honors, Special Education, and similar programs appear to lack
explicit criteria for integration and are subject only to Huntsvilles internal
review. Id. at 54-55. Finally, while the Proposed Consent Order was updated with
a demographics table for Current Enrollment, Current Live-In and Future Live-In
students based on attendance boundaries, it fails to set forth projected enrollment
data that properly illuminates the expected racial composition of schools and can
serve as a metric to measure the efficacy of the Proposed Consent Order. 2
Second, Black students and parents seeking to transfer to majority-white
schools have repeatedly expressed a deep frustration with the existing M-to-M
program. We have been told by numerous parents that the M-to-M program is often
confusing and difficult to navigate because Huntsville has limited M-to-M transfers
based on school capacity, and has required transferring students to reapply
annually to remain at the host school. Unfortunately, the Proposed Consent Order
further formalizes these problematic aspects of the M-to-M program. CONSENT
ORDER pp. 7-11. This conflicts with Supreme Court precedent requiring school
districts to create additional school capacity for M-to-M transfer students, and, at
the very least, give M-to-M students priority. See Swann, 402 U.S. at 27 (In order
to be effective, [an M-to-M transfer] arrangement must grant the transferring
student free transportation and space must be made available in the school to which
he desires to move.). Moreover, the Proposed Consent Order contains no explicit
right for M-to-M students to remain in the host school from year-to-year, which may
disproportionately burden Black M-to-M transfer students with school instability.
Memorandum Opinion, at 22, Hereford v. Huntsville Bd. Of Educ., No. 5: 63-cv
Indeed, the prior Proposed Consent Decree filed on January 26, 2015 provided no
demographic information to determine the current or future racial composition of Huntsvilles
schools. See Proposed Consent Order, Hereford v. Huntsville Board of Education, No. 5:63-cv-00109MHH, ECF No. 388-1, Exhibit A (N.D. Ala. Jan. 26, 2015).
2

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00109-MHH (N.D. Ala. June 30, 2014), ECF No. 364 (describing Black students
reliance on the M-to-M program); Cf. Harris, 968 F. 2d at 1097 ([T]he burden of
desegregation must be distributed equitably; the burden may not be placed on one
racial group.).
Third, weaknesses in the proposed operation of the magnet schools may
undermine their value as desegregation tools. For example, the selection decisions
for the magnet schools are made by a Huntsville-named committee rather than an
independent officer or magnet director. CONSENT ORDER pp. 19-22. Such a
committee vests Huntsville with the power to make magnet school selections, which
is particularly problematic given the imprecise and ambiguous magnet school
selection standards detailed above, and which may lead to questions regarding the
integrity of the selection process.
Faculty.
Faculty composition and the equitable distribution of teachers are critical to
a desegregation plan. See Swann, 402 U.S. at 18 ([W]here it is possible to identify a
white school or a Negro school simply by reference to the racial composition of
teachers and staff . . . a prima facie case of violation of substantive constitutional
rights under the Equal Protection Clause is shown.). Black parents and faculty
have raised significant concerns with us regarding the distribution of teachers in
the District and they want any final Consent Order to ensure that qualified,
experienced teachers are evenly distributed throughout the District. The Proposed
Consent Order sets forth provisions that attempt to ensure equitable assignment of
Secondary Teachers through a review of the comparability of departments between
schools. CONSENT ORDER p. 36. However, the Proposed Consent Order allows the
District up to two years to take remedial measures that address any determination
that departments at the schools across the District are not comparable. Id. Given
the need for prompt action, a shorter deadline, of at least one year for corrective
action, is more appropriate.
Transportation.
Although the Supreme Court imposes [n]o rigid guidelines as to student
transportation, Swann, 402 U.S. at 29, a desegregation plan must ensure that
burdens of transportation are borne equally by white and Black students. Bradley,
961 F. 2d at 1557-58.
Here, the District is seeking unitary status as to
transportation, CONSENT ORDER p. 79, and, therefore, must demonstrate to Black
parents and students its good-faith commitment to the desegregation decree.

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Freeman, 503 U.S. at 491. However, Huntsville guarantees only that, to the extent
practicable, . . . transportation times for [M-to-M] students . . . do not exceed
District guidelines of 90 minute maximum transportation time. CONSENT ORDER p.
12. But, this does not ensure that Black students will not travel further or longer
than whites. Additionally, although Alabama law allows, but does not require,
school districts to provide bus transportation for students, Ala. Code 16-11-14,
16-11-15, the Proposed Consent Order does not guarantee transportation to any
zone schoolseven where bus transportation may be necessary to support those
new programs envisioned in the Proposed Consent Order or for student safety. Cf.
Swann, 402 U.S. at 30-31 (requiring courts to take such concerns into consideration
in devising transportation plans). Troublingly, the transportation schedules are also
to be filed under sealfurther undermining transparency. CONSENT ORDER p. 14.
Quality of Education.
As detailed above, the Supreme Court has endorsed assessments of quality of
education, which includes student discipline, as a Green factor. Freeman, 503 U.S.
at 492. A prominent concern in this case is the Districts social media monitoring
program, called Students Against Fear (SAFe). While the SAFe program no longer
exists,3 it previously monitored student speech, including that which took place off
of school property and outside of school hours. Pursuant to SAFe, those students
whose online activity was deemed inappropriate were suspended, expelled, or
otherwise disciplined. Apart from the possible violation of students right to freedom
of expression, the fact that school-based punishments aimed at online behavior were
characterized by racial discrimination remains deeply troubling. See J. W. v. Desoto
County Sch. Dist., 2010 WL 4394059, *9 (N.D. Miss. 2010) (warning that school
districts are on a slippery slope when students are expelled not for what they do
but for what districts subjectively believe them to be based on private, off-campus
conduct); see also G.C. v. Owensboro Pub. Sch., 711 F.3d 623, 633-634 (6th Cir.
2013). According to published reports, the SAFe program led to the expulsion of 14
students in the 2013-2014 school year.4 Twelve of those expelled were Black

3 Daniela

Perallon, Huntsville City Schools Ends Contract with FBI Consultant Who Led SAFe
Program, WHNT News, Nov. 7, 2014, http://whnt.com/2014/11/07/huntsville-city-schools-endscontract-with-fbi-consultant-who-led-safe-program/.
Challen Stephens, Huntsville Schools Paid $157,000 for Former FBI Agent, Social Media
Monitoring
Led
to
14
Expulsions,
AL.com,
Nov.
1,
2014,
http://www.al.com/news/huntsville/index.ssf/2014/11/huntsville_schools_paid_157100.html.
4

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U.W. Clemon
White Arnold & Dowd P.C.
Members of North Huntsville Community
United for Action (NHCUA):
Veronica Curtis
Retired Educator of Huntsville City Schools
Rev. Larry Davidson
Pastor, Hopewell Missionary Baptist Church
Rep. A. Laura Hall
Alabama State House of Representatives
Commissioner Robert Bob Harrison
Madison County Commission, District 6
Michael Jennings
Community Activist
Pastor Clarence Johnson
Poplar Creek Missionary Baptist Church
Pastor T. C. Johnson
St. Luke Christian Church
Rev. Michael Jones
President, Greater Huntsville Interdenominational Ministerial Fellowship
Pastor Oscar Montgomery
Union Hill Primitive Baptist Church
Paul Proctor
Parent of student in Huntsville City Schools
Rev. W. Temple Richie, Jr.
Retired Pastor

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Alice F. Sams
Immediate Past President, Huntsville/Madison County NAACP Branch
Pastor Julius R. Scruggs
First Missionary Baptist Church
Rev. R. L. Shanklin
President, Huntsville/Madison County NAACP Branch
Dr. Richard R. Showers, Sr.
Councilman, City of Huntsville
Pastor Mitchell M. Walker
Church Street Cumberland Presbyterian Church
Michelle L. Watkins
Former Teacher of Huntsville City Schools