Sutton v. Escambia County Board of Education

809 F.2d 770, 37 Educ. L. Rep. 80

Opinions

PER CURIAM:

In this action, residents of Escambia County, Alabama, seek to have an Alabama statute declared unconstitutional as applied because it allows residents of the City of Brewton to vote for county school board members, which allegedly dilutes the votes of the county residents in violation of the equal protection clause. This Court has considered this same question in connection with three other Alabama counties. In one case we upheld the inclusion of city voters in the county school board election, in two we held that inclusion to be unconstitutional. The test established by these cases is whether the city residents have a substantial interest in the operation of the county school system. Deciding this case is more like the case which upheld the participation of city voters than those that did not, we affirm the district court’s decision denying the claim of unconstitutionality.

There are two school systems in Escambia County. The Escambia County Board of Education administers the Escambia County school system, consisting of all schools located within the geographical boundaries of Escambia County but outside of the geographical boundaries of the City of Brewton. Pursuant to Ala.Code § 16-8-1, county board members are elected at large by all qualified electors residing within Escambia County, including those who live in the City of Brewton.

The City of Brewton has taken advantage of the Alabama law which permits a city to establish its own school system. The Board of Education of the City of Brewton administers the school system located within the geographical boundaries of the city. Members of the city board are appointed by the city council, which is elected solely by the residents of the City of Brewton.

Plaintiff purports to represent all eligible county voters who do not reside within the City of Brewton. He alleged that the county board electoral scheme is constitutionally overinclusive and that it dilutes and debases the votes of non-city residents.

The proper standards to apply in this case have been delineated in a series of cases before this Court. The party seeking to exclude city residents from voting in the county school board elections has the burden of demonstrating that the application of the Alabama statute here is irrational or wholly irrelevant to the state’s objective of electoral participation in the selection of county school board members. Creel v. Freeman, 531 F.2d 286, 288 (5th Cir.1976), cert. denied, 429 U.S. 1066, 97 S.Ct. 797, 50 L.Ed.2d 784 (1977); see also Glisson v. Mayor & Councilmen of Town of Savannah Beach, 346 F.2d 135, 137 (5th Cir.1965); Spahos v. Mayor & Councilmen of Town of Savannah Beach, 207 F.Supp. 688, 692 (S.D.Ga.), aff'd per curiam, 371 U.S. 206, 83 S.Ct. 304, 9 L.Ed.2d 269 (1962). The test for whether the statute is irrational as applied to the particular county is whether the city residents have a substantial interest in the operation of the county school system. If the city residents do not have a substantial interest, then the state must exclude the city residents from voting. Hogencamp v. Lee County Board of Education, 722 F.2d 720, 721 (11th Cir.1984); Phillips v. Andress, 634 F.2d 947, 950 (5th Cir. Unit B 1981).

Since this panel is bound by prior decisions of this Court, this case must be decided along the lines of decision of the three prior cases involving the same question. The first case was Creel v. Freeman, 531 F.2d 286 (5th Cir.1976), cert. denied, 429 U.S. 1066, 97 S.Ct. 797, 50 L.Ed.2d 784 (1977), where the city residents of Carbon Hill and Jasper were permitted to vote in the Walker County elections. The Court held that the facts, established on summary judgment, clearly showed a substantial interest of the city residents in the operation of the county school system and no domination of the elections by such residents.

Accordingly, appellants have not met their burden of demonstrating thaf the Alabama statutes and their application here are irrational or wholly irrelevant to the state’s objective of electoral participation in the selection of county school board members.

Creel, 531 F.2d at 288. The Court found that none of the incumbent board members resided in either city. The building housing the county board was located in Jasper city limits and the Jasper school board paid $100,000 for the purchase of the property and rented it to the county board for $1 per year. The Walker Area Vocational School, located within Jasper city limits, was operated by the county board. The Jasper board contributed $212,500 toward its construction, and 114 of the 691 students lived in the city. Walker High, located within Jasper, had 488 out of 950 students from outside the city limits, 257 of whom were transported by the county board. The Carbon Hill school system had 965 students, 482 of whom lived outside city limits and were transported by county buses. Of the $35,501 collected on property within Jasper city limits, $25,915 went to the county board.

The next two cases decided by this Court held the statute was unconstitutionally applied to two other counties. Phillips v. Andress, 634 F.2d 947, 950 (5th Cir. Unit B 1981); Hogencamp v. Lee County Board of Education, 722 F.2d 720 (11th Cir.1984). It is somewhat difficult to compare these cases because the facts upon which the court focused in each case do not line up with any quantitative precision.

In Phillips, residents of the City of Tuscaloosa made up 56% of Tuscaloosa County’s population. Although there was a total student enrollment of about 23,000 in the two systems, there were very few crossovers, because both the city and county systems were subject to court-ordered desegregation plans which generally precluded transfer of students. There was also very little interrelationship in student enrollment in special programs. The city and county operated separate vocational schools, with little student crossover. The county operated a regional school for multihandicapped students, funded by state and federal funds, that served not only the county and city but also four or five surrounding counties. Both systems offered adult-oriented community education courses not limited to residents of their respective jurisdictions, but no evidence was introduced on cross-enrollment. On the question of source of county system operating revenue, the court found it impossible to attribute the source of sales tax revenue and found that the property taxes flowing from city sources to the county system, amounting to less than one percent of the county system’s budget, was “insufficient to justify the inclusion of so many otherwise disinterested electors as to reduce by over one-half the weight of the votes cast by those who actually reside in the county system’s jurisdiction.” 634 F.2d at 951.

Hogencamp is similar to Phillips and the facts reflect even less interest of the city residents in the county school system. The school boards of three cities were involved, in addition to the county board. There were very few student crossovers. Fifty to 100 Phenix City students attended Lee County schools, although Phenix City is located primarily in another county. A few students from an area annexed by Opelika were allowed to remain in county schools if they had started there. Hogencamp contains no discussion regarding the sharing of special programs or functions. City voters had decided three of the last five elections for the county school board. The court rejected an argument regarding the Alabama Special Education Trust Fund, and found that the 2.74% of the county board’s budget contributed by city residents was “insufficient by itself to create a substantial interest in the city residents.” 722 F.2d at 722.

In evaluating the facts of this case, although not without some doubt, it appears that the result here should be the same as in Creel. The district court here made the following factual findings about the respective school systems, after a trial which ended in the granting of a Rule 41(b) motion after the plaintiff had presented his case. Seventeen percent of the population of Escambia County resides in Brewton. No resident of the city has served on the county board since 1962. The residents of Brewton have not decided an election, and city residents have accounted for no more than 26% of the votes cast in a single election.

The respective boards are two separate boards having responsibilities to two separate school systems. The boards are made up of different people, occupy different offices, employ their own administrative staffs, operate under their own budgets, and have exclusive authority over their own personnel.

Both the city and county boards maintain an open-door policy to students. At the time of the district court’s decision, 330 students who attended Brewton schools were non-residents of the City of Brewton and residents of Escambia County. Forty-four students attending county schools were city residents. Of the 350 county school system teachers, 57 are city residents.

The city board does not operate a summer school session. The county board operates two summer sessions at a county school which are attended by city residents. Students who attend summer school sessions pay $30 tuition per session. Fifty-one of the 88 students during the summer of 1984 were Brewton residents.

The Escambia-Brewton Area Vocational Center, which is located outside of the city, is operated pursuant to a joint venture agreement between the boards. The Center’s operating expenses not borne by the state or federal governments are shared on an equal basis. Somewhat less than half of the students attending the Center are city residents. Although the agreement calls for joint administration of the Center, in fact all of the administrative duties are carried out under the direction of the county board.

The two school systems cooperate in providing services to multi-handicapped and trainable mentally retarded students within the Brewton area. The Brewton school system maintains the multi-handicapped class, pays the teachers, pays the aides, and supplies all materials. The Escambia County School System provides the class for the trainable mentally retarded students in the Brewton area. Transportation for multi-handicapped and trainable mentally retarded students is provided primarily by the county school system; students are transported from outside the city to the multi-handicapped class and students are picked up within the city and transported to the trainable mentally retarded class.

A recent survey of nine of Brewton’s largest employers shows that 38% of their employees attended Escambia County schools and another 4% attended both county and city schools. Fifteen percent of their employees attended Brewton schools.

The district court’s findings did not contain any conclusions about the relative financing of the systems.

Here, like Creel and unlike Phillips and Hogencamp, Brewton residents do not dominate school board elections. In Creel, city residents amounted to 30.8% of the vote in the countywide election, while here the percentage has always been less than 26%. As in Creel, no city resident serves on the county board, and none has since 1962. Statistics available since 1958 show that no election has been decided by city residents. The interest in excluding city residents from county board elections, therefore, is less compelling here than in Phillips or Hogencamp.

The facts in this case, as those in Creel, demonstrate a strong relationship between the county school system and the city school system. The student crossover here, while not as great as that in Creel, is greater than that in Phillips or Hogencamp, particularly in relative terms, and perhaps more importantly, neither the county nor city schools maintain a closed-door policy.

Also demonstrating this strong relationship is a sharing of responsibility in special programs exceeding that in Creel. As in Creel, the operation of the Escambia-Brewton Area Vocational Center began as a joint venture between the county board and the city board. The county and city split operating expenses on an equal basis, although somewhat less than 50% of the Center’s students are city residents. In Phillips, each school system had its own vocational school. No mention of a vocational school, or of any other shared program, was made in Hogencamp.

Two additional factors showing the close relationship of the two systems are the county-operated summer sessions and the cooperative effort in providing services to multi-handicapped and trainable mentally retarded students, including the provision of transportation services.

Unlike the facts in Phillips and Hogencamp, the facts here show a strong relationship between the two school systems. Though the evidence of city financial participation present in Creel may be absent here, this lack is offset by greater interaction in the provision of school services.

These facts provide a sufficient basis for finding that Brewton residents have an interest in the county school system’s operation to constitutionally justify their inclusion in the electorate. Their inclusion is not irrational or totally irrelevant to the state’s objective.

The voters sought to be excluded here, in addition to being city residents, are at the same time county residents, just as they are residents of the state and the United States. Residents of an area are normally qualified to vote in the elections of the governing bodies of those areas. To exclude them from elections in the county in which they reside requires a compelling state interest. Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). To successfully exclude them because of a different interest from others requires proof of a compelling state interest in that exclusion.

All too often, lack of a “substantial interest” might mean no more than a different interest, and “ ‘fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.”

Evans v. Comman, 398 U.S. 419, 423, 90 S.Ct. 1752, 1755, 26 L.Ed.2d 370 (1970) (quoting Carrington v. Rash, 380 U.S. 89, 94, 85 S.Ct. 775, 779,13 L.Ed.2d 675 (1965)). See also Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975); City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).

We need not decide here whether, if it had sought to do so, the state could show a compelling interest in excluding the city voters from the county school board elections. It is enough to decide that the plaintiff has failed to carry the burden of showing it is irrational to include them. In close cases, the decisions dictate that overinclusiveness is less of a constitutional evil than underinclusiveness.

AFFIRMED.