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Barber v. Bice

United States District Court, N.D. Alabama, Southern Division

August 29, 2014

ALBERT BARBER, JR., et al., Plaintiffs,
TOMMY BICE, et al., Defendants

For Carol Barber, Michael Todd, Emanuel Ford, Virginia Volker, Plaintiffs: Redding Pitt, FARRIS RILEY & PITT, LLP, Birmingham, AL; W Edward Still, EDWARD STILL LAW FIRM LLC, Birmingham, AL.

For Tommy Bice, in his official capacity as State Superintendent of Education, Ed Richardson, in his official capacity as Chief School Financial Officer of the Birmingham City Schools, State Board of Education, The, a department of the Alabama government, Defendants: J Dorman Walker, LEAD ATTORNEY, Griffin L Knight, BALCH & BINGHAM LLP, Montgomery, AL; Aaron L Dettling, Aaron L. Dettling, Lawyer, L.L.C., Hoover, AL; David R Boyd, BALCH & BINGHAM LLP, Birmingham, AL; Juliana Faria Teixeira Dean, Larry E Craven, ALABAMA STATE DEPARTMENT OF EDUCATION, Montgomery, AL.

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When leaders fail to lead, all types of maladies tend to follow. The reasons behind such failures are many and varied. There may be a failure to account for the critical nature of a particular crisis. Petty politics and self-interest (rather than the interests of those who should be served) may improperly motivate those tapped to lead. Officials may become stubborn, or look to the next election, not the next generation. Those in authority may be afraid to lead.[1] This case involves a failure of leadership -- occasioned by at least some

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of those elected to serve on the Birmingham Board of Education -- during 2012.

This matter is before the court on Defendants' Motion for Summary Judgment. (Doc. # 41). The Motion has been fully briefed. (Docs. # 42, 46, and 47).

Plaintiffs' Second Amended Complaint contains a claim under Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 (" VRA" ) (Count Two), and claims under 42 U.S.C. § 1983 asserting violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States (Counts Three and Four). (Doc. # 37). Count One, which asserted claims under Section 5 of the Voting Rights Act, was previously dismissed without prejudice, voluntarily, on Plaintiffs' own motion. (Docs. # 26, 30 and 31).

In their response to Defendants' motion for summary judgment, Plaintiffs have acknowledged that Counts Three and Four are due to be dismissed. (Doc. # 46 at 13). Therefore, the sole issue before the court is the viability of Plaintiffs' claim contained in Count Two and asserted under Section 2 of the VRA. That claim essentially asserts that, by intervening and taking over -- to some degree -- the financial management of the Birmingham public school system, Defendants diminished the power of the elected members of the Birmingham Board of Education, and thereby diluted the voting rights of those who elected the board members. (Doc. # 46 at 8-9). After careful review, the court concludes that Defendants are entitled to judgment under Federal Rule of Civil Procedure 56 on this remaining claim.


Plaintiffs are citizens and voters in the City of Birmingham, Alabama. They have filed suit against the following Defendants. Dr. Tommy Bice is the State Superintendent of Education. Dr. Ed Richardson is the acting Chief Financial Officer of the Birmingham City Schools, appointed by the State Board of Education. The Alabama State Board of Education is a constitutionally created state agency that is vested with general supervisory authority over the public schools in Alabama and the various county and city school boards. Dr. Craig Witherspoon is the Superintendent of the Birmingham City Schools.

Alabama law requires that local boards of education implement certain fiscal management practices to ensure the financial soundness of the public schools of this state. Among those management practices are requirements that each local board of education (1) submit to the State Superintendent of Education a budget meeting state requirements, (2) " adopt fiscal management policies which comply with generally accepted accounting principles", and (3) develop and maintain a reserve fund sufficient to cover one month's operating expenses.

At the end of Fiscal Year 2011, Dr. Craig Pouncey, Chief Educational Financial Officer for the Alabama State Department of Education, found that 31 of Alabama's 134 local school systems did not have one month's operating expenses in reserves, as required by State law. One of those systems with inadequate reserve funds was the Birmingham City School System.

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The Birmingham Board of Education's (" BBOE" or " the Board" ) monthly expenses in 2012 were approximately $17 million, and, at the beginning of the 2011-12 school year, it had a monthly reserve balance of approximately $6.5 million. Because of student enrollment losses, BBOE's allocation of state funds was expected to be further reduced by approximately $4.5 million. Taking this fall in revenue into account, the BBOE's actual monthly reserve balance was only approximately $2 million -- about $15 million short of the monthly reserve balance required by State law. ALA. CODE § 16-13A-9 (1975).

A local school board that does not have the required reserve balance, and lacks an approved plan to build it to required levels, cannot receive State funds. As a result, it is imperative that a non-compliant board act promptly to adopt and implement a financial recovery plan.

Pursuant to his authority under the School Fiscal Accountability Act, Dr. Pouncey required each of the 31 non-compliant local school boards to submit draft recovery plans by April 2, 2012. The draft plans were the first step in an interactive process whereby the local boards, in collaboration with Dr. Pouncey's office, would develop a unique and tailored financial recovery plan for each local board. Each financial recovery plan was required to be approved by the State Department of Education and passed as a resolution by the local school board.

In response to concerns about the unsound financial condition of the Birmingham school system, on April 12, 2012 the State Board of Education passed a Resolution for an Investigative Review of the Governance of the Birmingham Board of Education (the " April 12 Resolution" ). The full text of the April 12 Resolution reads as follows:

WHEREAS, the Alabama State Superintendent of Education (" the State Superintendent" ) has authority under rules and regulations promulgated by the Alabama State Board of Education (" State Board" ) to review actions and orders of city and county boards of education and of their superintendents in matters relating to finance and otherwise seriously affecting the educational interests; and
WHEREAS, upon such review, the State Superintendent has the power to determine from the facts the just and proper disposition of the matter and to render binding orders with respect thereto; and
WHEREAS, the State Superintendent is further authorized and required to interpret and enforce the school laws, rules, and regulations of the State Board, and to decide, without expense to the parties concerned, all controversies and disputes regarding the proper administration of the public schools; and
WHEREAS, the Birmingham City Board of Education (" Birmingham Board" ) has, over the course of recent weeks and months, engaged in a pattern of decision making, action, and inaction that has impeded or prevented implementation of plans, initiatives, and programs designed to meet the Birmingham Board's financial and fiduciary obligations under state law and to ensure the provision of appropriate educational services to its 25,000 students; and
WHEREAS, these actions and decisions have engendered internal acrimony

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and paralysis, counterproductive litigation and physical altercations between Birmingham Board officials, public allegations that Birmingham Board members have violated the Alabama Open Meetings Law, and unabated, unfavorable news media coverage; and
WHEREAS, these circumstances have eroded public and parental confidence in the Birmingham School System, have created and compounded community division and controversy, and have threatened to exacerbate a long-term trend of declining enrollment in the Birmingham School System; and
WHEREAS, Birmingham's civic, community, business, and governmental leaders, as well as members of the Birmingham Board itself, have called on the State Board to invoke its statutory authority to investigate and review the actions and decisions of the Birmingham Board that have caused the crisis of confidence described above, to implement such corrective actions as may be necessary to rectify the adverse effects thereof, and to eliminate the impediments to orderly and effective decision making that have been created thereby.
NOW, THERFORE, BE IT RESOLVED, By the Alabama State Board of Education as follows:
1. The State Superintendent is authorized and directed to investigate, review, and resolve by appropriate order(s) all controversies and matters described above coming under his jurisdiction by virtue of ALA. CODE § § 16-3-27, 16-4-4, and 16-4-8 (1975), said investigation and review to be conducted in accordance with the ...

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