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Litigation continues in Gardendale’s failed school effort, city still collecting taxes for district

Published: Nov. 4, 2021 at 1:40 PM CDT
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BIRMINGHAM, Ala. (WBRC) - Six years and counting. That’s how long it’s taken to litigate Gardendale’s effort to form its own city school system and separate from Jefferson County’s school district.

In 2018 the Eleventh Circuit Court of Appeals denied Gardendale’s venture. Most thought the fight was over, but the court battle continues. This time, it’s over money.

In December 2019, the federal court handed down a judgment ordering the Gardendale School Board to pay the attorneys nearly a million dollars who represented the Black schoolchildren in this lawsuit.

“The Gardendale School System came to end on February 13, 2018,” explained Retired Judge U.W. Clemon, an attorney for the plaintiffs in this case. “We have been litigating the issue since 2015, so all these many years we’ve been litigating ferociously, have won, and have not been paid.”

The judge levied the fees to punish the Gardendale Board for attempting to go around the federal court to establish a new school district and for sending a message of inferiority to Black children attending Gardendale schools. The Eleventh Circuit affirmed that found Gardendale acted in bad faith and expressed ‘a desire to control the racial demographics of the four public schools in the City of Gardendale and the racial demographics of the city itself’.

This fall the federal district judge handed down another scathing ruling. She asserted the Gardendale School Board members resigned in an effort to avoid paying the fees and the city council avoided appointing a new board for the same reason.

Read order below:

“The City’s conduct in avoiding the steps that would enable the Board to pay the fee award reinforces the finding of bad faith that underpins the award,” the order cites.

Clemon agrees.

“In terms of sending a message of inferiority, here we have a situation in which lawyers represented in defeating Gardendale’s effort to create a school system, the white lawyers, have been paid handsomely and they lost the case,” Clemon added. “We, on the other hand, have not been paid.”

The City of Gardendale squarely denies that claim.

“The city has not reappointed any school board members because there is no support politically for another separation effort,” explained Ken Thompson, Gardendale’s city attorney.

Thompson doesn’t have a problem with paying the attorneys. However, he says it’s not the city’s responsibility and pointed out the city isn’t a party in this lawsuit. He filed a motion asking the judge to reconsider, calling the ruling unprecedented.

“There is no law out there today that supports her attempt to pull the city into this litigation,” Thompson said. “The city does not recognize any sort of legal or moral obligation to the private plaintiffs to ensure that they’re paid. In fact, federal law and state law all clearly contemplate that obtaining a judgment is no guarantee of collectability.”

It’s unclear what money would be used to pay the fees. The Board paid its attorneys from taxes initially collected for the school district.

During our investigation, we discovered the city continues to collect property taxes generated specifically for a school system that doesn’t exist and likely won’t anytime soon.

In 2013, the Gardendale City Council and citizens each passed a five mill property tax increase, those ten mills were earmarked to fund the new school district. The board used those funds to hire a superintendent and operate the district during the litigation. Since the Eleventh Circuit decision, the city council unearmarked the five mill tax increase to be used as needed in the general fund. The five mill tax increase passed by voters is strictly to be used for public schools. To date, the city’s collected nearly$6,000,000, almost $3,000,000 remains in a treasury.

The city council could pass an ordinance to rescind that tax, but Thompson said that’s not in the works.

“We’re in somewhat unchartered territory here,” Thompson admitted. “We’ve got some ideas about what could be done with the tax monies that have been collected, if the tax were rescinded. But I don’t think at this point anybody is ready to commit to what would happen there, but there are some options.”

Thompson says the city council has used some of those tax dollars to help fund the Gardendale schools.

“Things the city is funding are items that you can touch and feel like computers, televisions, overhead projectors, things like that,” he said. “The city is doing its best to get the citizens some of what they asked for when they began the separation effort.”

It’s hard to know what’s ahead for the taxpayers and the attorneys. The attorneys have also asked the judge to reconsider the ruling, requesting additional funds to be awarded for their appellate work. It’s unclear when the judge may respond.

There’s also some indication the city and the attorneys could settle outside court. If they can’t reach an agreement, the attorneys could place a lien against the city, which could hurt its bond rating in the future.

“The city definitely wants it over with, they want to put the whole saga behind them,” Thompson acknowledged.

Clemon, who’s been litigating school separation agreements for decades, admits he doesn’t know when he will ever see these funds.

“Like everything, it is all in the hands of the Lord, and that’s good enough for me,” Clemon added. “I hope sometime between now and when He calls me on to better things the fees will be paid. But if it isn’t paid, I’ve got a lot of family around so they will be around for some time [to collect the fees].”

History of the case

Gardendale’s pursuit of a city school system is one chapter in a long, racially-tainted history in Jefferson County that dates back to the civil rights era.

The Jefferson County School District remains under a comprehensive federal desegregation order to this day. It came down in 1971 after the county refused to integrate its schools following the landmark antidiscrimination ruling in Brown versus Board of Education.

  • The 1971 order requires Jefferson County to educate black and white students together and reach what the courts call unity status. A year before this federal decree, three majority-white cities broke from Jefferson County to form their own districts. As a result Homewood, Vestavia and Midfield are also governed by the 1971 order.
  • Moving forward, any city that wanted to splinter from Jefferson County must gain approval from a federal judge. Splinter districts that would hurt Jefferson County’s goal of unitary status were to be denied.
  • Decades later, predominately white cities Hoover, Trussville and Leeds were allowed to break away, vastly changing the racial landscape of Jefferson County Schools and pushing it further from unitary status.
  • In 2012 Gardendale sought to be the next city to follow suit, triggering a lengthy and revealing federal court fight.
  • Birmingham, Bessemer, Fairfield, Mountain Brook and Tarrant city school districts formed prior the 1965 lawsuit that ushered in the standing desegregation order.

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