Judge Extends Orders Against Birmingham School Board
Two Long Days of Wrangling, But No Legal Resolution Yet

State schools chief Tommy Bice and other key players in the battle over Birmingham Schools look on
with concern at the April board meeting that triggered state intervention. Photo by Dan Carsen.

By Dan Carsen, Aug. 2, 2012

BIRMINGHAM, Ala. -- One round of testimony is over, but the long road to legal closure in the battle over Birmingham Schools is not. At least not yet.

After two sometimes arcane, sometimes fiery days of testimony, Jefferson County Circuit Judge Houston Brown on Thursday extended two temporary injunctions against the Birmingham Board of Education by 10 days or until further notice. One of the orders protects local superintendent Craig Witherspoon's job by rescinding his recent firing by the board; the other directs the board not to interfere with the state takeover of the school system or disobey direct orders from state education officials.

Brown set next Wednesday evening as the deadline for either side to turn in briefs or evidence. He could issue a ruling on permanent injunctions very soon after. Brown has tried to move things along, bearing in mind that school is set to start Aug. 20.

"If the Birmingham Board of Education would have cooperated, as boards have in other jurisdictions where similar issues have come up, we would not be in court," said state education department attorney David Boyd, adding, "Without the intervention of the state officials, there would've been a real difficult time facing the Birmingham school board this year."

But board member Alana Edwards, a regular Witherspoon critic, said she felt disenfranchised by the takeover and that her rights as a citizen had been taken away.

"I feel very disturbed," she said. "I feel like it's 1920 right now and this is just incredible for the state of Alabama to go backward and not forward in time."

Witherspoon's lawyer, U. W. Clemon, however, said, "The school board failed to adopt a plan, the effect of which ... would be to close down the school system."

If Birmingham schools don't submit a balanced budget to the state by Sept. 15, legally the state must withhold funding. That nightmare scenario -- roughly $120 million yanked out from under the system -- would shut down Birmingham schools. Clemon also explained that lack of a budget could result in the system losing its accreditation.

State schools chief Tommy Bice testified that members of the local board had told him they'd pass the state-recommended $13 million cost-cutting plan if they were permitted to fire Witherspoon. He also testified that, since local knowledge of staffing is necessary for the intervention and the state's cost- cutting plan to work, Witherspoon is indispensable. Bice repeated that he wants to give control back to the local board as soon as possible, which will happen once the system's finances are brought into line with state law.

All sides agree that the district has been overstaffed at its central office, and that there are too many empty buildings or classrooms that are being heated, cooled and maintained. Craig Pouncey, Bice's chief of staff and chief financial officer, called that "money going out the door."

Speaking of doors, he said the "revolving door" of superintendents in Birmingham has a direct effect not only on stability and perception, but on the costs associated with overstaffing, because over the years, as superintendents have come and gone, the administrators they've brought with them have stayed. If Brown grants Witherspoon and the state permanent injunctions, Witherspoon's job would be protected at least for the duration of the intervention, and the state will continue to have authority over the district -- most notably over its purse strings.

Local board lawyers maintain Bice has no legal authority to override the Alabama Supreme Court opinion and the state laws that say local boards have the right to hire and fire superintendents. Bice and his lawyers counter that doesn't hold during a takeover, and that they haven't hired or fired a superintendent for Birmingham, only temporarily suspended the local board's right to do so.

At one point, Clemon -- a retired federal judge who played a notable role in the Civil Rights Movement -- asked Bice if Witherspoon had white supporters. Local school board lawyer Fred Bolling became visibly and audibly offended, assuming the question was an attempt to highlight the importance of support from white people -- people who, as he put it, don't even send their children to Birmingham City Schools, which are roughly 95 percent African-American. Bolling objected, saying Clemon's question was irrelevant. Clemon and Bolling, who is also African-American (as is Judge Brown) sparred for a few minutes before Judge Brown overruled Bolling, agreeing with Clemon's contention that widespread, diverse support for Witherspoon is relevant.

Throughout the hearing, Judge Brown seemed more sympathetic to the state's and Witherspoon's cases, which had earlier been consolidated into one proceeding. Brown upheld numerous objections to Bolling's lines of questioning.

Birmingham school board attorney Tom Stewart put a positive spin on things: "The case went well. It tried well. All the parties said everything they wanted to say. And it's now in the judge's hands."


All of Dan's education reporting, including numerous stories about the battle for Birmingham Schools, can be found here. You can also retrace his moment-to-moment observations of Thursday's court action at his Twitter page, @WBHMEdDesk.