Lockett v. Bd. of Educ. of Muscogee , 92 F.3d 1092 ( 1996 )


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  •           United States Court of Appeals, Eleventh Circuit.
    
                                  No. 94-9355.
    
                 Jerry LOCKETT, et al., Plaintiffs-Appellants,
    
                                        v.
    
     BOARD OF EDUCATION OF MUSCOGEE COUNTY SCHOOL DISTRICT, GEORGIA,
    et al., Defendants-Appellees.
    
                                  May 5, 1997.
    
    Appeal from the United States District Court for the Middle
    District of Georgia. (No. 64-991-COL), J. Robert Elliott, Judge.
    
      ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC
    
    Before COX and BARKETT, Circuit Judges, and MOORE*, Senior District
    Judge.
    
          PER CURIAM:
    
          The Board of Education of Muscogee County, Georgia ("school
    
    board") petitions for panel rehearing.        We grant the petition and
    
    substitute the following opinion for the previous opinion reported
    
    at 
    92 F.3d 1092
     (11th Cir.1996).
    
                                  I. Overview
    
          Plaintiffs appeal the district court's final dismissal of
    
    their action and declaration that the school board has eliminated
    
    its   dual   education   system,   thereby   achieving   unitary   status.
    
    Finding that the district court did not clearly err, we affirm.
    
                                 II. Background
    
          Plaintiffs, who were black schoolchildren, filed this class
    
    action in 1964 seeking desegregation of Muscogee County schools.
    
    The district court twice denied Plaintiffs relief, and the Fifth
    
    Circuit affirmed both denials.           Lockett v. Board of Educ. of
    
          *
          Honorable John H. Moore, II, Senior U.S. District Judge for
    the Middle District of Florida, sitting by designation.
    Muscogee County, 
    391 F.2d 272
     (5th Cir.1968);       Lockett v. Board of
    
    Educ. of Muscogee County, 
    342 F.2d 225
     (5th Cir.1965).
    
         The district court revisited the case in 1971 after the
    
    Supreme Court decided Green v. School Bd. of New Kent County, 
    391 U.S. 430
    , 
    88 S. Ct. 1689
    , 
    20 L. Ed. 2d 716
     (1968), and           Swann v.
    
    Charlotte-Mecklenburg, 
    402 U.S. 1
    , 
    91 S. Ct. 1267
    , 
    28 L. Ed. 2d 554
    
    (1971).   It ordered the school board to present and implement a
    
    desegregation plan consistent with the Swann principles.       Lockett
    
    v. Board of Educ. of Muscogee County, 
    442 F.2d 1336
     (5th Cir.1971).
    
    In response, the school board submitted the following plan:
    
       AMENDED PLAN TO DESEGREGATE THE SCHOOLS OF MUSCOGEE COUNTY,
    GEORGIA
    
              The [school board,] in continuation of its effort to
         unify its schools to eliminate every vestige of discrimination
         because of race or color of its students and to maintain a
         fully desegregated system, hereby adopts this Amended Plan of
         Desegregation so as to fully comply with the law in such cases
         made and provided. The percentage of white and Negro students
         attending the school [sic] in this County are approximately
         70% white and 30% Negro, and it is the purpose and intent of
         this Board to obtain approximate proportionate representation
         of each race in each school in the most efficient manner;
    
                      NOW, THEREFORE, BE IT RESOLVED:
    
                           .      .    .    .       .
    
                               STUDENT ASSIGNMENT
    
              All white students, equal in number to 70% of the
         capacity of the school to which they have been assigned,
         living nearest to said school, and all Negro students, equal
         in number to 30% of the capacity of the school to which they
         have been assigned, living nearest to said school, shall
         attend said school for the year beginning in September, 1971.
    
              All other students assigned to said school shall be
         assigned by the Superintendent and his staff to the school
         nearest to the residence of said student which does not then
         have its quota of white or Negro students as above stated.
    
              All students who have not been assigned to any school for
         the current Fall term, or who later enter the School System,
          shall be assigned by the Superintendent and his staff to the
          school nearest the residence of said student which then has
          space available and has less than its quota of white or Negro
          students, as the case may be, then assigned to said school.
    
               There shall be no transfer or assignment of any student
          during the entire school year, except in case, absent the
          consideration of race, a change is educationally called for or
          where compelling hardship or other good reason is shown by the
          student.
    
               In school years after the school year beginning in
          September, 1971, the Board of Education, prior to the end of
          such school year, shall determine the approximate percentage
          of white and Negro students attending the school in this
          District and assignment of students shall be made as above
          provided so that the approximate number of white and Negro
          students in each school shall be substantially the same as the
          percentage of white and Negro students in the entire School
          System.
    
          The school board amended this plan in 1972.            The amendment
    
    exempted first graders and kindergartners and stated that the
    
    "quota or percentage of white and Negro students in each school in
    
    the next school term shall be substantially the same as is the
    
    percentage of white and Negro students in the entire school system
    
    at the end of the current school term."               The district court
    
    approved both the proposed plan and the 1972 amendment by court
    
    order and retained jurisdiction to supervise the school board.
    
          In   furtherance   of   the   plan's   goals,    the   school   board
    
    implemented student reassignment and attendance zone adjustments.
    
    By 1973, the proportion of majority to minority students in 57 of
    
    the 64 Muscogee County schools was within 10% of the proportion of
    
    the races in the County as a whole, and 5 schools fell within a 20%
    
    range. Roughly the same compositions were maintained through 1977.
    
          Toward the end of the 1970s, the school board began reducing
    
    the   number   of   student    reassignments     and    attendance     zone
    
    adjustments.     At the same time, county demographics began to
    change,   resulting     in     racially   polarized   residential    areas,   a
    
    decrease in the number of white students, and an increase in the
    
    number    of   black    students.         By   the   mid-1980s,    the   racial
    
    compositions within many of the schools were disproportionate with
    
    the county-wide student racial composition, and by 1991, several
    
    racially identifiable schools existed.
    
         Plaintiffs therefore moved in 1991 for an injunction and an
    
    order directing the school board to take whatever action necessary
    
    to achieve proportionate student compositions.             The district court
    
    denied the motion as moot because the original class of Plaintiffs
    
    were no longer students.           This court reversed and remanded for
    
    consideration of the motion on its merits.                Lockett v. Board of
    
    Educ. of Muscogee County Sch. Dist., 
    976 F.2d 648
     (11th Cir.1992).
    
    Before the district court decided the motion on remand, the school
    
    board    met   with    black    and   white    citizens   and   Parent-Teacher
    
    Association representatives from majority black and majority white
    
    schools. With support from these citizens and representatives, the
    
    school board implemented a neighborhood-school plan that eliminated
    
    cross-district busing and called for students to be assigned to
    
    local neighborhood-schools.           The school board also proposed magnet
    
    programs and majority-to-minority transfer programs to off-set any
    
    negative impact that the neighborhood assignment plan might have on
    
    racial composition within the schools.            Plaintiffs moved to enjoin
    
    the neighborhood-school plan in 1992 and in 1993.                 The district
    
    court denied both motions, finding no irreparable harm.
    
         The school district then moved for final dismissal of the 1971
    
    order and for a declaration of unitary status in an effort to have
    the district court divest itself of jurisdiction.             Following an
    
    evidentiary hearing, the district court granted the motion.
    
                           III. Standard of Review
    
         We review a district court's declaration that a school system
    
    has achieved unitary status under the clearly erroneous standard.
    
    Jacksonville Branch, NAACP v. Duval County Sch. Bd., 
    883 F.2d 945
    ,
    
    952 n. 3 (11th Cir.1989).   Under this standard, we are not entitled
    
    to "reverse the finding of the trier of fact simply because [we
    
    are] convinced that [we] would have decided the case differently.
    
    [We] overstep[ ] the bounds of [our] duty under Rule 52(a) if [we]
    
    undertake[ ] to duplicate the role of the lower court....            Where
    
    there are two permissible views of the evidence, the factfinder's
    
    choice between them cannot be clearly erroneous." Anderson v. City
    
    of Bessemer City, North Carolina, 
    470 U.S. 564
    , 574, 
    105 S. Ct. 1504
    , 1511, 
    84 L. Ed. 2d 518
     (1985).
    
                                IV. Discussion
    
         In Brown v. Board of Ed., 
    347 U.S. 483
    , 495, 
    74 S. Ct. 686
    ,
    
    692, 
    98 L. Ed. 873
     (1954) (Brown I ), the Supreme Court recognized
    
    that state-compelled segregation in schools violates the Fourteenth
    
    Amendment's Equal Protection Clause.        To effectuate       Brown I's
    
    mandate, the Supreme Court ordered district courts to supervise
    
    school boards that had practiced de jure segregation in their
    
    desegregation efforts.    Brown v. Board of Ed., 
    349 U.S. 294
    , 301,
    
    
    75 S. Ct. 753
    , 757, 
    99 L. Ed. 1083
     (1955) (Brown II ).              District
    
    courts   maintained   supervision   by   issuing   remedial    orders   and
    
    asserting jurisdiction over school boards to ensure compliance with
    
    those orders.
           The Supreme Court intended this federal supervision of local
    
    school systems to be a temporary measure.                             Board of Educ. of
    
    Oklahoma City v. Dowell, 
    498 U.S. 237
    , 247, 
    111 S. Ct. 630
    , 637, 
    112 L. Ed. 2d 715
        (1991).      Since          the    legal      justification    for    such
    
    supervision is a constitutional violation by local authorities, a
    
    district       court    must    divest          itself      of    jurisdiction     when    the
    
    constitutional violation has ceased and when local authorities have
    
    operated in compliance with a desegregation decree for a reasonable
    
    period of time.        Id. at 248, 111 S.Ct. at 637;                  see also Freeman v.
    
    Pitts, 
    503 U.S. 467
    , 489, 
    112 S. Ct. 1430
    , 1445, 
    118 L. Ed. 2d 108
    
    (1992) ("[T]he ultimate objective [is] to return school districts
    
    to    the    control    of    local    authorities.").                A   district   court's
    
    decision       to    divest     itself       of       jurisdiction        "recognizes     that
    
    "necessary concern for the important values of local control of
    
    public school systems dictates that a federal court's regulatory
    
    control of such systems not extend beyond the time required to
    
    remedy the effects of past intentional discrimination.' "                            Dowell,
    
    498     U.S.    at     247,    111     S.Ct.           at   637     (citations    omitted).
    
    Counterbalancing this recognition is the acknowledgment that "the
    
    potential for discrimination and racial hostility is still present
    
    in our country, and its manifestations may emerge in new and subtle
    
    forms       after    the     effects       of     de    jure      segregation     have    been
    
    eliminated."         Freeman, 503 U.S. at 490, 112 S.Ct. at 1445.
    
             To ensure that local authorities are not continuing to
    
    practice       discrimination,         a    district        court's       determination    of
    
    whether local authorities have complied with a desegregation decree
    
    involves a careful assessment of the facts.                         Id. at 474, 112 S.Ct.
    at 1437. Utilizing sound discretion after a such a careful factual
    
    assessment, a district court must determine (1) whether the local
    
    authorities have eliminated the vestiges of past discrimination to
    
    the extent practicable and (2) whether the local authorities have
    
    in good faith fully and satisfactorily complied with, and shown a
    
    commitment to, the desegregation plan. Lee v. Etowah County Bd. of
    
    Educ., 
    963 F.2d 1416
    , 1425 (11th Cir.1992) (citing Dowell, 498 U.S.
    
    at 249-50, 111 S.Ct. at 638).
    
         In determining whether the local authorities have eliminated
    
    the vestiges of de jure segregation as far as practicable, a
    
    district    court   must   examine   six   facets   of    school    operation:
    
    student    assignments,    faculty    assignments,       staff   assignments,
    
    transportation,     extra-curricular       activities,     and     facilities.
    
    Dowell, 498 U.S. at 245, 111 S.Ct. at 636 (quoting Green, 391 U.S.
    
    at 435, 88 S.Ct. at 1693 (1968)).          In its discretion, a district
    
    court may consider other facets.           Freeman, 503 U.S. at 492, 112
    
    S.Ct. at 1446.
    
         Here, the district court limited the bulk of its discussion to
    
    student assignments because the parties agreed that the school
    
    system has eliminated the vestiges of de jure segregation as far as
    
    practicable in the areas of faculty assignments, staff assignments,
    
    transportation, extra-curricular activities, and facilities.1              We
    
    do the same.
    
             Where, as here, a school board has a history of practicing
    
    segregation, a district court must presume that substantially
    
         1
          The district court, in a proper exercise of its discretion,
    did not consider other facets of school operations such as
    quality of education, and neither party requested that it do so.
    disproportionate       racial    compositions    within     the     schools   is
    
    constitutionally violative.           Swann, 402 U.S. at 25, 91 S.Ct. at
    
    1281. To overcome this presumption, a school board must prove that
    
    the imbalances are not the result of present or past discrimination
    
    on its part.     Id.
    
         The school board sought to prove through expert witnesses that
    
    the current student imbalances and imbalances during the 1980's
    
    were not the result of present or past discrimination.                    Those
    
    witnesses testified that the current racial imbalances were the
    
    result of dramatic demographic changes in Muscogee County, such as
    
    an increase in the number of black school-age children and a
    
    decrease   in    the   number    of   white   school-age    children.         The
    
    demographic change, according to one expert, was a result of
    
    factors over which the school board had no control, such as a
    
    decrease in the white fertility rate, a difference in purchasing
    
    power between white and black families, a preference of white and
    
    black families to live in neighborhoods composed of families of a
    
    similar race, and the location of housing projects.                 (R2-19-21).
    
    Based on this evidence and the fact that other experts did not
    
    contradict this evidence, the district court concluded that the
    
    school   board   proved   that    the   imbalances   were    "the    result   of
    
    voluntary housing patterns and demographic change."               (R2-23).
    
         The district court's conclusion was not clearly erroneous. It
    
    was based on expert opinion "consistent with the mobility that is
    
    a distinct characteristic of our society."           Freeman, 503 U.S. at
    
    493, 112 S.Ct. at 1447.         And while
    
         [i]n one sense of the term, vestiges of past segregation by
         state decree do remain in our society and in our schools....
         [as a stubborn fact of history, we must not] overstate its
         consequences in fixing legal responsibilities....      It is
         simply not always the case that demographic forces causing
         population change bear any real and substantial relation to a
         de jure violation[,] [a]nd the law need not proceed on that
         premise.
    
    Id. at 495-96, 112 S.Ct. at 1448.              Further, "[a]s the          de jure
    
    violation becomes more remote in time and ... demographic changes
    
    intervene, it becomes less likely that a current racial imbalance
    
    in a school district is a vestige of the prior de jure system.                   The
    
    causal link between current conditions and the prior violation is
    
    even more attenuated if the school district has demonstrated its
    
    good faith [commitment to a desegregation plan.]"                  Id. at 496, 112
    
    S.Ct. at 1448.
    
           A    good    faith   commitment    to    a   desegregation        plan   also
    
    demonstrates to parents, students, and the public that students
    
    will no longer suffer injury or stigma.                   At the same time, it
    
    "enables    the     district   court     to    accept      the    school   board's
    
    representation that [the school board] has accepted the principle
    
    of racial equality and will not suffer intentional discrimination
    
    in the future."      Id. at 498, 112 S.Ct. at 1449.              To determine if a
    
    school board has shown a good faith commitment to a desegregation
    
    plan, a district court should, among other things, consider whether
    
    the school board's policies "form a consistent pattern of lawful
    
    conduct directed to eliminating earlier violations."                    Id. at 491,
    
    112 S.Ct. at 1446.
    
         Here, the district court concluded that the school board has
    
    in   good   faith     shown    a   commitment       to,   and     has   fully    and
    
    satisfactorily complied with, the desegregation plan generally and
    
    in those aspects specifically related to student assignments.                    The
    district court, which has monitored the actions of the school board
    
    for   over   30   years,   reached   this   conclusion   based   on   several
    
    findings.     First, it found that it has never had to enjoin or
    
    sanction the school board.      Second, it found that the school board
    
    never failed to comply with a court order.2         Third, it found that
    
    the school board took actions to further desegregation which went
    
    above and beyond what the 1971 order as amended required.             Fourth,
    
    it found that the school board kept desegregation of its schools at
    
    a level not surpassed by any school district in the country for ten
    
    years, even in the face of countervailing demographic factors.
    
    Fifth, it found that the school board implemented magnet programs
    
    which, at least in one instance, helped to racially balance an
    
    otherwise unbalanced school. Sixth, it found that the school board
    
    adopted the neighborhood assignment plan only after listening to
    
    the views of black and white citizens (both groups favored the
    
    plan) and PTA representatives from majority white and majority
    
    black schools (both groups opposed an alternative plan).3 Seventh,
    
          2
          As part of this finding, the district court interpreted its
    1971 order as amended to require the school district only to
    achieve proportionate representation for the 1972-73 school year.
    We should give effect to that interpretation. See Cornist et al.
    v. Richland Parish School Board, 
    495 F.2d 189
    , 191 (5th Cir.1974)
    (stating that in a desegregation case, the district judge
    "construed his own order, as he was entitled to do"); Vulcan
    Tools of Puerto Rico v. Makita USA, Inc., 
    23 F.3d 564
    , 566 (1st
    Cir.1994) ("[W]e are loathe to upset a district court's
    interpretation of its own order.").
          3
          We should not treat the adoption of the neighborhood
    assignment plan as a breach of good faith on the part of the
    school board. In Lockett v. Board of Educ. of Muscogee County,
    No. 93-8966 (11th Cir. July 21, 1994), we affirmed the district
    court's decision allowing the school district to continue the
    plan as consistent with the underlying desegregation plan. Cf.
    Dowell, 498 U.S. at 249 n. 1, 111 S.Ct. at 638 n. 1 ("The Court
    of Appeals viewed the Board's adoption of [a particular plan] as
    it found that the school board implemented a majority to minority
    
    transfer program in 1992 to offset any racial impact that the
    
    neighborhood assignment plan could have.         (R2-40).   In addition to
    
    these specific findings, the district court noted generally that
    
    "[e]very expert who testified in this case expressed praise in
    
    varying degrees for the desegregation efforts of the [school
    
    board]."     (R. 2-55.)    The district court's findings were based on
    
    uncontradicted evidence and fully support the district court's
    
    conclusion that the school board has shown a good faith commitment
    
    to and compliance with the desegregation plan. This conclusion was
    
    not clearly erroneous.
    
                                    V. Conclusion
    
         The district court's conclusions that the school board has
    
    eliminated     the   vestiges   of   de   jure   segregation   as   far   as
    
    practicable and that the school board has shown a good faith
    
    commitment to and compliance with the desegregation plan were not
    
    clearly erroneous.        Accordingly, we affirm the district court's
    
    final dismissal and declaration that the school board has attained
    
    unitary status.
    
         AFFIRMED.
    
         BARKETT, Circuit Judge, dissenting:
    
         Although I believe this is a very close case and guidance in
    
    this area of the law is vague, I respectfully differ from the
    
    court's decision to rehear this case because I am concerned about
    
    
    a violation of its obligation under the injunction, and
    technically it may well have been. But ... we do not think that
    the Board should be penalized for relying on the express language
    of that order.").
    the Muscogee County School District's actions, and inaction, during
    
    the last fifteen years that it was subject to the desegregation
    
    decree.
    
         Regardless of the age of a desegregation decree, such a decree
    
    may only be terminated upon a showing that a school district has
    
    eliminated all vestiges of prior de jure segregation to the maximum
    
    extent practicable and has complied in good faith with both the
    
    decree and the spirit of Brown 's mandate.1       Board of Ed. of
    
    Oklahoma City v. Dowell, 
    498 U.S. 237
    , 249-50, 
    111 S. Ct. 630
    , 638,
    
    
    112 L. Ed. 2d 715
     (1991);    Lee v. Etowah County Bd. of Educ., 
    963 F.2d 1416
    , 1425 (11th Cir.1992).
    
         No one disputes that de facto segregation now exists in the
    
    school district.   It is also clear that prior de jure segregation
    
    resulted from unconstitutional practices by the school district.
    
    The school district had the burden of demonstrating that the
    
    current imbalances are not vestiges of those past policies or
    
    practices.   See Swann v. Charlotte-Mecklenburg, 
    402 U.S. 1
    , 25, 
    91 S. Ct. 1267
    , 1281, 
    28 L. Ed. 2d 554
     (1971).       The district court
    
    determined that the racial imbalances were not caused by the school
    
         1
          In its Petition for Rehearing, the School Board repeatedly
    suggests that a school district satisfies its obligations once it
    adopts a racially neutral system of student assignment. See
    Petition for Rehearing at 7 ("federal courts simply have no
    authority to enforce orders solely to achieve racial balance once
    a racially neutral system of student assignment has effectively
    been adopted") & 12 ("there is no affirmative duty [to remedy
    racial imbalances] after a school system has successfully
    implemented a school desegregation plan"). However, I believe
    Petitioner confuses the means of its remedial obligations with
    the ends. Although implementing a racially neutral attendance
    pattern is a necessary remedial device, "[a] remedy is
    justifiable only insofar as it advances the ultimate objective of
    alleviating the initial constitutional violation." Freeman, 503
    U.S. at 489, 112 S.Ct. at 1445 (emphasis added).
    system but, in doing so, focused only on demographic changes in the
    
    county.   The court failed to consider whether the school board's
    
    total curtailment of any desegregation efforts after about 1980
    
    helped    preserve   or   perpetuate   the   effects   of   its   prior
    
    unconstitutional policies.     The district court's narrow approach
    
    erroneously assumed that as long as a school district can point to
    
    some force not directly related to a school district's overt
    
    actions which is causing or exacerbating racial imbalances, then
    
    the resulting imbalance is not traceable to past practices.       I do
    
    not believe that this approach comports with the proper burdens of
    
    proof or the analytic framework set out in Freeman v. Pitts, 
    503 U.S. 467
    , 494, 
    112 S. Ct. 1430
    , 1447, 
    118 L. Ed. 2d 108
     (1992).
    

Document Info

DocketNumber: 94-9355

Citation Numbers: 92 F.3d 1092

Filed Date: 8/28/1996

Precedential Status: Precedential

Modified Date: 3/26/2017

Authorities (16)

Lockett v. Bd. of Educ. of Muscogee , 92 F.3d 1092 ( 1996 )

Brown v. Board of Education , 347 U.S. 483 ( 1954 )

Brown v. Board of Education , 349 U.S. 294 ( 1955 )

Green v. County School Board , 391 U.S. 430 ( 1968 )

Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U.S. 1 ( 1971 )

Anderson v. Bessemer City , 470 U.S. 564 ( 1985 )

Board of Ed. of Oklahoma City Public Schools v. Dowell , 498 U.S. 237 ( 1991 )

Freeman v. Pitts , 503 U.S. 467 ( 1992 )

jerry-l-lockett-gwendolyn-lockett-and-jim-h-lockett-jr-minors-by , 342 F.2d 225 ( 1965 )

Jerry L. Lockett v. Board of Education, Muscogee County ... , 391 F.2d 272 ( 1968 )

Jerry Lockett v. Board of Education of Muscogee County , 442 F.2d 1336 ( 1971 )

Ollie Cornist v. Richland Parish School Board, Elvert ... , 495 F.2d 189 ( 1974 )

Jacksonville Branch, Naacp, Cross-Appellee v. The Duval ... , 883 F.2d 945 ( 1989 )

anthony-t-lee-united-states-of-america-plaintiff-intervenor-national , 963 F.2d 1416 ( 1992 )

Jerry L. Lockett v. Board of Education of Muscogee County ... , 976 F.2d 648 ( 1992 )

Vulcan Tools of Puerto Rico v. Makita Usa, Inc. , 23 F.3d 564 ( 1994 )

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