naacp deseg letter

NAACPLEGALDEFENSEANDEDUCATIONALFUND,INC.

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

Washington, D.C. Office 1444 Eye Street, NW, 10th Floor Washington, D.C. 20005 T 202.682.1300 F 202.682.1312

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FILED

2015 Mar-16 AM 10:43U.S. DISTRICT COURT

N.D. OF ALABAMA

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

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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 Majority-to-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-2 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-00109-MHH, ECF No. 388-1, Exhibit A (N.D. Ala. Jan. 26, 2015).


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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 committeerather 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-ends-contract-with-fbi-consultant-who-led-safe-program/. 4 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.


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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


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naacp deseg letter

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