when we need it and if you know if we have scheduled a case for a large moment you can rest assured we think that that will assist us in the resolution of the case so that's that's what we're here for please do not treat the red light as aspirational this morning when it shines if you're answering a question from the court feel free to finish your answer but do respect the court's time so we'll begin with stout versus the jefferson county board of education mr clement will you please come and s i'm going article five minutes and she'll take five and we'll reserve five minutes for rebuttal in the outset we want to make it clear that we deeply appreciate the  hard work and dedication of the district judge in this case under her direction and guidance we expect to submit a proposed consent to create a final consent decree for her approval by august of next year with respect to the unitary status argument of gardendale i guess what i had a hard time understanding i read the district court's orders and no i hadn't noticed i had no trouble following this order an understanding the order and then all the sudden the district court granted something that it from from what i can tell at least no party asked for is been achieved and the supreme court had the opportunity five years after this court has said that right well this court said it in one thousand seventy six but it really did  has that the school county school system has achieved the you know terri status that would mean that it's no longer in need of supervision at the federal court isn't that right clearly shows that members of the city council were aware of the motivations of the private citizen should we reach that issue well actually it if if if we were to say as i understand it the district court made t findings that are subject to review for clear yes one is that the gardendale school system one had been motivated by discriminatory purpose to schools affirming on either ground would would be sufficient do we need to reach the discriminatory part where you wanted it in all candor it is not necessary to reach that issue because the  the federalist papers to decide the meaning of the constitution because when they were adopt it the constitution had not been ratified mr clement if if we were not to reach the end dependent fourteenth amendment violation issue as the chief judge and you were discussing as being not necessary and then forward three or four years the gardendale came forward with another plan for splendor for separation and a challenge was made to that and in connection with review of that future plan the district court judge was to rely on her finding of the another planets a little different and the district court judge says listen i tax you with a violation of the fourteenth amendment three years ago and i'm still have power to review your plan in the light of that violation issue i think and then if she did that and gardendale said well and gardendale didn't like her the results of her order and appeal up here and said listen we now want you to review whether we were ago remember that record we made because if you know gardendale he's now challenging whether or not there was clear error in the judge's finding of an independent violation that record will still be extant four or and if i did pronounce it correctly please correct me me kind of speculative concern but it would i would think that if years down the road there were another attempt to create a separate school system that any evidence about what happened with respect to this motion to separate could be considered under arlington heights as part of kind of the mosaic of circumstantial evidence but that gardendale would also be able to explain years later presumably why whatever happened before is not what is motivating them then and all of that would just be in the mix and whatever finding a district court would make and assuming that this assuming that jefferson county is achieve unity terry status at that point if that's the circumstance might not even be the same district judge but but in that event the district court would be able to evaluate it and make a fine it would have to be a new finding about discriminatory purposes and by right i believe  guy your honor that what we found and believe the court found with the independent violation questions fourteenth amendment i mean still discrimination is a finding that if this court allows to stand would be something that would be relevant in any future efforts court reached that both of them are valid and it would provide the basis for enjoining gardendale from from operating a school district at this time the court should reverse because according to binding president the district court's order was that the court would be entering a new separation order and that was not the plan that gardendale proposed which it found to be interfering with the implementation of desegregation isn't that right your honor if i understand your question correctly  you would you're describing a a new gardendale plan sometime in the future that would be implemented i think that's what the district court is saying we will have a new plan and that will not interfere with the implementation of the plan that the d right the supreme court was very clear that if if a school district or separating school district may not be created  and we believe that the court mishap prevented the law in that case that we feel it's very clear under right that there are no options we all believe that either this court nor the district court has a choice but to enjoin the session school district does does the does the violation of the fourteenth amendment in connection with the school plan afford the district court a broader range of discretionary remedies and does right address that specific issue and right the issue was not addressed on the question of intense discrimination that was not the bases and in fact what wright says is that you don't have to it's not the purpose  even if even if there's a perfectly innocent motive if there's an adverse effect on then you can't do a what i'm trying to ask is whether or not this district court i believe felt that you had had a kind of special form of authority to operate here because she was going to not only cure the violation in her mind but she was going to produce a plan that would have a minimized impact on the county and she viewed her earth situation as somewhat unique i think that's clear from her opinion yes or no my question is whether or not right whether it's really the issue that fits the foot and i believe the right is definitely squarely here and i think what what your honor is describing is a situation where in which somehow the finding evidence of this combination provides more leeway in determining outcomes but we feel that the in finding them to discrimination time from the original problem that was created the county system and a court is trying to balance in discretionary fashion the answer to both the independent violation question as well as the harm to the here but there the court found that the adverse and pact was sufficient and the facts aligned much as they do here in this case that was sufficient to enjoin the school district from separating is really quite clear of that in the event that a finding of fact is made and it is supported that there will be an adverse effect on the county speak here and then there's no discretion you have to reject the client so it seemed to me that subsequent eleventh circuit precedent if there is a finding as there was here that would be an adverse impact as the court said there could only be one option in chambers i just understand what the authority where it would come from i mean if someone's come before the court t created a new school system and that district court finds that doing that the plan has a discriminatory purpose and alternatively would impede the desegregation of the county school system i don't has been made and the finding of adverse impact which is that's the end of the court's equitable sort of authority and review the court has a terminal as a housekeeping question so the district court said that that the county and guard could go ahead and start taking steps toward the creation of this new school system has that happened what what's what's happening so extensive that the record would tell us or anything else so what has occurred as a judge michael a district court stayed the portion of the order regarding garden dale's activities and moving towards a separate school system but then  allowed the important work that actually all of the parties the united states the plaintiffs and the jefferson county were pursuing earlier which was actually fashioning a new desegregation plan that would move jefferson county towards unitary status so that process is moving forward be presented for the court's consideration and if adopted would take some time thereafter to implement it absolutely under under binding supreme court precedent that is the way in which a disaggregation case is resolved that a plan must be put in place to remove the he's of the prior system to the extent practicable the parties are clear that there are some things including jefferson county that they still have are non compliant on and need to address and what is frustrated that process has been guarded also session and the prior  s which the court found that have created both demographic financial and geographic disruptions that would actually allow jefferson county to have a moment in time that we can actually pause a value of what needs to be three categories and i'll give you the highlights of each one if that works the first is the demographic changes that the separation would create and those are that essentially gardendale would be a white  enclave school system within a much more diverse larger jefferson county that it would change the demographics of the entire jefferson county yes it would it would be would be more white gardendale would be more white than jefferson county so it'll be if it takes just the students that are within it it'll be right around twenty five percent which is about where it is now but jefferson county as a whole becomes more african american less white and then it now creates a centrally a separate system part of the problem is that the plan is so uncertain that hard to really say it is true that question isn't it is and the other thing that what you do lose as a part of that geographic location because of the high quality state of the art programs serves as a desegregation tool because it brings students from around the area into this effectively integrated high school but you lose the opportunities for any further desegregation  carving out of gardendale the court noted that it is there is some uncertainty however the certainty though is we can look at it packed of the prior separations and we can see that the prior separations have had a detrimental impact on the county has had a significant impact and loss of i don't want you to sure but i think if you're going to refer if you're answering judge clevenger as questions so i think we need to move on to the data points to make sure we sorry or the other point would be the the message of inferiority right allows not just in looking at a demographic changes but also looks at the timing in the message of the separation and here the message of inferiority is clear black children are described as a bitter pill that guardrail be forced to swallow there's no ambiguity in the meaning of that and an y ambiguity in the court found on page one seventy seven of it's order of the flyer that was used in the motivation of the for the tax to allow the creation of gardendale said the court found any argument ambiguity in the fire is resolved by the blatant public statements from separation organizers that we don't want to become what center point has become which is an african american community and we need to separate to provide the control over the geographic composition of the student body the statements made  clear the timing of the message and the separation are clear this school district was created to exclude african american students and that best age of inferiority regardless of whether it's two schools or twenty please the court in freeman versus pitch the supreme court said that local autonomy of school districts is a vital national tradition there are two points i'd like to address today as to why it was wrong for the district court to obstruct garde ls effort to take part in that tradition first the finding as to any substantial adverse impact or impediment to the county's desegregation efforts and second the finding of racial motivation as to the first the lower court found and this is explained in the supplemental opinion only to adverse impacts on the county's desegregation first the transfer of roughly six hundred students out of about thirty three thousand county student enrollment from schools in gardendale to schools elsewhere in the county and second the transfer of the high school itself as to the first finding the high school is a big factor isn't it it certainly is your honor and if i will address that first if you would like it to me it's probably your your biggest problem when on this point it seemed to me that the district court was entitled to find that that high school was playing a critical role in the desegregation effort of the county school system particularly as to schools that that high school plays a role in vocational training that is designed to bring students from a larger portion of the county they are and and as a result you know enhanced the desegregation efforts what do you say about that well your honor you're correct that that was a central concern of the district court there are two reasons why i think it was error for her to impose for the court to impose the the price of the bounty on the high school and to address what you just his first law is there evidence to support that finding that that that it does play that the high school plays that role well yes you are the high school does but the problem with that finding is it was a straw man for the district court to find that the transfer of gardendale high school to the new system would be a lost somehow to the county's ongoing desegregation for several reasons first of all it is clear in the record both from the separation plan from the transfer policy and from dr martin superintendents testimony that there will continue to be desegregation transfers from county into the city system including the high school and specifically that the career tech or vocational training which your honor mentioned which was a central concern i think of the district court will under our plan continue to be available to county students now the district court took some issue with the idea that tuition would be charged but the guard our system is quite happy to not charge tuition if that is a lesser remedy that the district court would have been willing to to consider instead of in latvia or any sort of amending the plan and brought about no your honor in fact i'm arguing the only reason why it was error for the court to impose a partial injunction and a very large price tag on the why the creation of that school system won't impede desegregation and it does appear from the record that this has been a bit of a moving target where you are let me let me be as clear as i can on the tuitions your original you've just today in front of us you decided that you'd be willing to waive this or that your amending the plans loop is a moving target and under ross i thought the law this order was very clear that the plan had to be specific tied down tight so that the judge could then make a judgment as to what the impact would be on the county how can you know what the impact on the county is of the target keeps moving well your honor i'm not suggesting that we amend the plan on the fly i'm suggesting that under brinkman the district court was required to tailor the remedy imposed to the nature and extent of the violation and because the impact if any of the transfer of the high school was so minimal it was error to impose a fee in the tens of millions of dollars this is to not this is not a situation where the district court is dealing with a transfer that it's already occurred and then tapering some kind of remedy to deal with an a fter in an after the fact manner this is whether the district court is going to grant a motion where you have the burden to establish that there won't be a problem right well that's correct your hon believe the record does ample establish that there will not be a substantial adverse impact on the county's desegregation from the transfer of the high school number one because the plan that was proposed in the transfer policy did make it clear that the career tech program will be available the county that we will continue to receive desegregation transfers from the county but more importantly the lower court remedy was legal error because it was not tied to any racially significant or desegregation specific impact the transfer of the roughly three hundred sixty six high school students from gardendale system to somewhere else in the county which is the only impact the district court found specific to desegregation as it pertains to the high school was a body of students eighty five percent of whom are white in fact an adverse expert conceded below that several of the county schools will become more racially balanced that we do not consider that's the goal of desegregation in the first place as a result of garden separation and that under the plan we proposed our schools likewise at the end of the thirteen year period would be more racially balanced than they are now so the failure of the district court legally in imposing a ban on the high school was in failing to tie that impact on there's a fight here amount whether or not we can consider that because what i'm not there was a cross appeal but my understanding was that part of the obligation of the gardendale was that it had to bring forward and put on to the record its  of the financial impact and to be able to demonstrate why the financial impact on the county wouldn't be and birds and i didn't see any evidence in the record put in by your side on the subject of financial impact am i wrong impact on the county's operating budget i believe he and the expert financial expert for the county who also testified agreed that the impact on the county's operating budget would be less than one percent of its two hundred sixty six million dollar annual operating million dollar facility if the high school is transferred that is unsupported entirely in the evidence the lower court relied only on the testimony of the superintendent of the county where and he opined that in his opening and desegregation  and the county wants to replicate that facility now they have to build one someplace well no you're out of the vast majority of the students who are educated today in that high school will continue to be so and there are only three hundred sixty six high school students at the county would have to reassign elsewhere and there was no evidence that they would need to spend fifteen minutes the total population of the high school the high school i think has over one thousand students i believe off the top of my head i know that there were three hundred sixty what percentage comes from outside a garden there are three hundred and sixty six students under gardels plan would have to be reassigned i do fairly substantial portion of the student body for me so a third of the student body as compared to the current high school population that may be correct your honor but the point that i'm making is simply that the county will not need a fifty million dollars facility to educate three hundred sixty six students in the county offered no evidence at  need some facility and whether or not that would have to be in some existing high school that that would require additional work or whether that would be a new high school still goes back to judge club injures question which is the county would have to do something right well the county would have to reassign those students that's correct but there is not evidence on the record to say it is i mean it isn't just those those the students that have transferred into gardendale from someplace else in the county so you say there are three hundred sixty six there are six hundred students in there from gardendale presumably there are students in the county at large more students who would like to come to this school i mean it is the three hundred  sixty six number just because there are only three hundred sixty six kids in the entirety of the county who want to go to get the book original programs were because there are six hundred gardendale people who want to be there and they're filling up the slots you  is not a day one displacement it is an over the transition period displacement and i believe if that answers your question and there was no evidence below that the county will need to build a shiny new fifty million dollar facility or anything like that at all and even if that were an impact eighty five percent of that body of students are white so the court failed to tie this impact to any desegregation specific or racially significant effect the second point i'd like to address is done is point we need to talk about discriminatory purpose because all of that is really beside the point if if we were we i mean for you know when we have to conclude we have to rule that the district court findings of your failure to establish that the separation won't impede the desegregation of the school system and a finding that there was a discriminatory purpose in moving to to create a separate school system where both clearly erroneous for you know when you've got to knock down both under a clear error standard isn't that right well your hon respectfully not exactly under allington hides itself at no twenty one the law is that even if in your hypothetical this court were to affirm the finding of discriminatory purpose a finding of discriminatory purpose does not automatically invalidate a governmental decision because the remedy must always be tailored to the nature and extent of the heart and here in an exam and in no no this isn't finding that this isn't a concern about  after of the fact remedy of a constitutional violation this is the denial of a motion to do something that the district court has found has a discriminatory purpose and and at that point the district court just denies the motion right well your honor that the district court actually imposed a partial no there i know that's a different problem do you think that the let's listen let's assume for a moment mr clout that you're unable to not down both of those findings on her clear air standard the district court had no authority to do what it did did it your honor respectfully i think that it did because the tailoring rule under brinkman in arlington heights by the language that i read in those cases not at all limited to only this an area where there's already been a concrete harm that has occurred in the past and the court is that is achieving a remedy ex post fac to that rule applies even when there's been a violation of the constitution certainly are for sure it must apply when there is merely a racial motivation to finally come in and you can you want to create a new school system that the district court says  motivated by racially discriminatory purpose and would impede the desegregation of the jefferson county school system both of which the court concludes kundra clearer standard the record supports those findings you're telling me that so what law empowers the district court at that point then to nevertheless create a partial separation that no that no party asked for where does that come from honor i think again it arises from the fact that as the courts have instructed a district court must be sensitive to local conditions and fashion a remedy that is tailored to the facts before it here at least the district court i believe was correct in seeing that given the limited and nature of the findings it made both as to impediment and racial motivation for example the court noted that many in dardanelle salt separation for non racial reasons the court realize that a total injunction is the planets are urged would be inappropriate it would go too far it would not be tailored to the harm that was found and here the district court failed to properly and i knew that god and i just don't get this is they did the court has ongoing injunction it's right that have a long standing here it's it's it's not that it needs to grant any new injunction to cure any violation it it's already got an ongoing remedy to desegregate the jefferson county schools the problem in this case is that long after that work began he moved to modify it and to allow something different to happen it was your it's your burden to do that and the district court found two separate problems both of which you have to knock down for you to get that kind of relief i don't understand why there's a need no no party asked the court to do what it did right it took to remedy any kind of constitutional violation i don't i really don't get it where the the court gets out of the what what where can i look in case law that says the district court was empowered to do what it did well your honor if i understand your question correctly the district court's concern was where would the power be for it to deny gardened else motion certainly as the court was examining opposing counsel moment go right and ross and scotland act and staff in this case do not authorize a district the district court finds that you failed to satisfy your burden i don't find any difficulty in understanding where it gets the authority to deny your motion that's easy isn't it well your honor i believe the district court at least in this respect did correctly rate the right opinion it does not command a district court to instantly and completely deny a separation motion if it finds are some impediment because the question still remains what happened to the let's ask this what was asked this way it would empower the district court if it so chose to do that right i believe right would empower a district court to impose some remedy if it found an impediment it is there again but not again to deny the motion well i think depending on the factual findings it could and that would depend on what were the nature and extent the findings and here those findings do not come close to approaching supporting a complete injunction because the racial motivation finding was based on a half dozen facebook post you're challenging evidence when you say well your honor not exactly i believe the legal error that the court committed here was in attributing to governmental body the only body before the guardrail board they supposedly and we do not concede racial statements made by private citizens and less lists lists cut to the chase want this ok arlington heights long ago said that there's a mosaic of circumstantial evidence that a district court can look at in determining whether a governmental body has been motivated by some improper discriminatory purpose some of which can include organize constituent activity that it finds motivated the state actors to act in the way they did and that that the reading of that circumstantial evidence allows and frantz that the governmental actors share that motivation that's like hornbook constitutional law isn't it respectfully your honor allington hyde does not authorize a district court to look back at the private statements of citizens in the past the background the decision the legislative history of the decision in all and hides was as of the history of that official that bodies official actions not with the district court did here which was the lid district court in that case looked at what the constituents were arguing to the is a zoning board or something like that a planning commission something like that and the supreme court of united states said that was the district court was perfectly within its rights and looking at that didn't it your honor i do not believe allington heights authorized the district court to attribute to the governmental body what it believed was racial motivation on behalf of a handful of private citizens and in that regard i would direct the court to a fifth circuit case jones versus lubbock seven to seven of second three sixty four copies of which i have with me today and i've given two opposing counsel in which there the fifth circuit said even a member of the governmental body voting commission i think in that case a member of that body had published in a newspaper  clearly bigoted racial slurs in the past and the fifth circuit held it was clear error for the district court to attribute to the body as a whole to a majority of that body the racial sentiments expressed in the pas that one member because there was no evidence that would allow the district court to infer that his racial animus influence the body as a whole and that is the legal error but that that that's not our record and or are finding that that that's a different issue from what we're dealing with here the district court didn't just look at some facebook post and make this finding the district court did it not looked at a lot of circumstantial evidence some of which included commentary by the organizers of this effort and it seems to me that arlington heights says the district court can look at that commentary as part of what i will call a mosaic of circumstantial evidence that's that's like super well versus lubbock explains why it was error here even if the court properly looked at that evidence to attribute it to the official actions of the board and following a motion separate when there was no evidence at all and the court sided plan that went through the district judge was not apparently read certainly wasn't approved by the board so i kind of had the impression that this board was an f m or s sort of body  sort of floating hope hope to operate someday while you're out of the board was formed unable twenty fourteen and has had meetings every month since then as far as i'm aware but but you are correct in that  something and sort of trying to understand the atmosphere is worth what your client's real position i mean would your client rather live with the chords order as it was entered or prefer to have the court have the plan reject it outright your honor if you're asking me whether gardner would prefer to take the partial injunction at the things status quo or to suffer a reversal and a total injunction certainly the and so any time you come back with anything you're under that supervisory thumb being watched like a hawk or as if this plan is totally rejected you if if this court were to say to decide that it c lied the question of the fourteenth amendment violation and say well district court made that ruling that we're not going to passion on it it will be reserved for some future date but by the way the plan is totally rejected years back close to back to square one as you could possibly the reason it is necessary and urgent for garden to that the court reverse and reach the constitutional violation conclusion is because in the event that there is a later motions however it shakes out the garda comes back to the district court with another motion another plant perhaps somewhat different plan the district court will almost certainly rely on a look back to that violation finding and it will be hanging over guardrails heads as a burden that we you know hanging over your head whether we reach the issue or not  district court judge's opinion is rock solid from her point of view until we learn nudged in a way on purpose walk past that might create some question in someone's mind about whether the question was close or not up here but no one knows but she certainly will continue to exercise your oath already under the basis of her independent finding well your honor if this court does not reach the constitutional violation conclusion i agree that the district court will take that as  mean you understand what i would say it just puzzled me in listening to your argument it sounded like you were defending the court's authority to do what she did while your honor the district court got something right here and it was to plaintiffs are the county board moved for some kind of injunction and that has been granted here and and that's just not the framework we're talking about you're the one moving the district court and you're the one pass going to upset an already ongoing injunctive relief and if the district court says no you did sustain your burden the district court doesn't enter any new injunction it doesn't enter an injunction at all there is already an injunction in place well you're out of the court's opinion uses the language that we are partially enjoined and that is why i made the statement that the court has entered a partial injunction against guardo but it's certainly you c view it technically as merely a you stand there in the district and the district court would have been wrong to just enjoying the separation entirely and i and and that's just not the way the framework works the what the district court would be doing is law to separate and form a district so i think i think recognize it has no such right and has no such right to do that unless it's first obtained the permission of the district court where you are that's that's under state law as i said there is a right for it to to separate and the district court only has the authority to prevent that if there is a substantial adverse impact on desegregation or an independent constitutional violation which is why we addressed all those points in our referenced we just received the case the first time this morning and reviewed it and found in agree with what the court had said that it does not fit squarely with the facts of this case the statements in that case were generally prejudicial as opposed to here where all of the evidence is squarely about the the understanding and misapprehension of the binding case law as judge clevenger mentioned earlier right the court seemed to see that right allowed for discretion but that may that the court relied on  holding in the holding it's very clear that it says may not create and so but based on that in the binding eleventh or cases the law is very clear denial is mandatory once a finding of discriminatory sorry of adverse impact has been made entity or to order the dissolution of that board of education what does that case law tell us about the case law from our understanding seems to make clear that once the court denies the motion that that is the denial of the recognition school district and should be sufficient the court could go further and enjoined that's not necessary because what the objectors to the recognition under sort of the ruling of the state superintendent of education gardendale could not move forward at what the district court would you would argue is obliged to do here is we would be a blockage to a farm in part reversed in part vacated in part when we were be required to remand with instructions to do something i do not believe that this court would have to remand for instructions do something i believe this court has the authority  and if it exists does it happen is a living under an injunction to have a new member know your i believe that if the district court were denied the motion for the operation of gardendale school board the cardinal school board would no modified the injunction that is already in place with respect to the jefferson county school system right that's accurate and so that's why i've been asking these questions it seems to me that what we would do injunction then you have returned to the status quo ante right your honor i believe that would i would that that would be the appropriate way to resolve the issue and i would just like to note if true clarification point on the adverse impacts just the facts of record in the financial impact it would actually be two million dollars a year loss and the loss of both that fanchon impact and also the loss of the facilities it interferes with what