United States v. State of Georgia , 171 F.3d 1344 ( 1999 )


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  •                                                                                       [PUBLISH]
    
                          IN THE UNITED STATES COURT OF APPEALS
    
                                   FOR THE ELEVENTH CIRCUIT
                                                                                 FILED
                                                                         U.S. COURT OF APPEALS
                                     ________________________              ELEVENTH CIRCUIT
                                                                                04/08/99
                                            No. 97-9199                     THOMAS K. KAHN
                                     ________________________                    CLERK
    
                                D. C. Docket No. 1: 69-CV-12972-RLV
    
    
    UNITED STATES OF AMERICA, et al.,
    
                                                                           Plaintiffs-Appellants,
    
                                         versus
    
    
    STATE OF GEORGIA, Meriwether County,
    MERIWETHER COUNTY, et al.,
                                                                           Defendants-Appellees.
    
                                     ________________________
    
                             Appeals from the United States District Court
                                for the Northern District of Georgia
                                   _________________________
                                           (April 8, 1999)
    
    Before ANDERSON and BARKETT, Circuit Judges, and HILL, Senior Circuit Judge.
    
    ANDERSON, Circuit Judge:
    
    
    
    
                                            I.    OVERVIEW
    
           The United States and Charles Ridley et al. (collectively “Plaintiffs”) appeal from the
    
    district court’s order of September 30, 1997 (“1997 Order”), ruling that continued federal court
    
    supervision of the Troup County School District was inappropriate. The district court based its
    decision on its interpretation of a previous order in the case, entered many years earlier by the
    
    three-judge district court in United States v. Georgia, No. 12, 972 (N.D. Ga. July 23, 1973)
    
    (“1973 Order”). The 1973 Order involved the Troup County School District and numerous other
    
    school districts in the area. The 1997 Order construed the 1973 Order as having found that the
    
    Troup County School District had achieved “unitary status,” and went on to conclude that
    
    federal court oversight of the district was therefore no longer proper. The district court
    
    accordingly vacated its prior order approving a 1995 consent decree entered into by the parties
    
    outlining a new desegregation plan and dismissed the case. Plaintiffs contend that the district
    
    court misinterpreted the 1973 Order by incorrectly reading it as having bestowed “unitary status”
    
    on the Troup County School District and therefore wrongly dismissed the case. For the reasons
    
    stated below, we agree. Accordingly, we reverse and remand.
    
    
    
    
                             II.    FACTS AND PROCEDURAL HISTORY
    
           This case began as a statewide suit filed by the United States on August 1, 1969, against
    
    the State of Georgia and eighty-one public school districts, including that of Troup County, to
    
    desegregate the schools in those districts. On December 17, 1969, the United States District
    
    Court for the Northern District of Georgia issued a detailed regulatory injunction, specifying the
    
    defendants’ duties under Brown v. Board of Education, 
    347 U.S. 483
    , 
    74 S. Ct. 686
     (1954). In
    
    1970, Charles Ridley and others joined the suit, intervening on behalf of black schoolchildren in
    
    the aforementioned districts.
    
    
                                                     2
           The cases were then transferred to the federal judicial districts within which the
    
    defendant school districts were located. On June 7, 1973, the district court for the Northern
    
    District of Georgia ordered the parties to show cause why certain school districts, including
    
    Troup County, should not be dismissed from the suit. On July 11, 1973, the United States filed
    
    a response to the order, arguing that although the school districts had become unitary in the sense
    
    required by the then-existing Supreme Court precedent, the districts should not be dismissed
    
    from the case and should not be released entirely from court supervision. The United States
    
    suggested that the Troup County case be placed on the inactive docket, be placed under a less
    
    detailed permanent injunction (than the 1969 one), and recommended that the injunction
    
    automatically expire after seven years of substantial compliance. The United States’ response
    
    attached a proposed order.
    
           On July 23, 1973, a three-judge court for the Northern District of Georgia entered an
    
    order incorporating almost verbatim the proposed order suggested by the United States, with one
    
    relevant exception noted below. The 1973 Order noted that certain school districts, including
    
    Troup County, had become “unitary” in the sense required by Brown v. Board of Education, 
    347 U.S. 483
    , 
    74 S. Ct. 686
     (1954), Green v. New Kent County School Board, 
    391 U.S. 430
    , 
    88 S. Ct. 1689
     (1968), and Swann v. Charlotte-Mecklenburg Board of Education, 
    402 U.S. 1
    , 
    91 S. Ct. 1267
     (1971). Following the United States’ suggestion, the 1973 Order did not dismiss Troup
    
    County from the case. Rather, the court placed the case on the inactive docket, dissolved the
    
    detailed regulatory injunction set into place by the 1969 Order, and substituted a new permanent
    
    
    
    
                                                    3
    injunction,1 which followed almost verbatim the permanent injunction in the United States’
    
    proposed order, with one exception. The proposed order had included a subparagraph (g)
    
    providing that the new permanent injunction would automatically expire after seven years of
    
    substantial compliance; however, the 1973 Order did not incorporate that paragraph; it excluded
    
    entirely the automatic dismissal provision suggested by the United States. Rather, the 1973
    
    Order placed the case on the inactive docket for an indefinite period of time, subject to
    
    reactivation upon application of any party. No party appealed the 1973 Order.
    
            In the ensuing years, issues arose as to whether Troup County was meeting its
    
    desegregation obligations. Consequently, in May 1995, the parties reactivated the Troup County
    
    case by submitting a consent decree positing a new desegregation plan. The district court, per
    
    Judge Vining, approved and entered the consent decree on May 31, 1995, which imposed various
    
    obligations on the Troup County School District. The consent decree also provided that if Troup
    
    County would satisfactorily implement the decree’s terms for a three-year period, the county
    
    could then apply to the court, seeking a declaration of “unitary status” and a dismissal from the
    
    case.
    
    
    
    
            1
              The 1973 Order imposed upon Troup County certain general obligations prohibiting
    discriminatory actions (which might well have imposed upon Troup County nothing more than
    the same obligation that all school systems have to obey the Constitution and applicable laws),
    but in addition imposed the following obligations upon Troup County: (1) to maintain a
    majority-to-minority transfer plan incorporating free transportation and an obligation to make
    space available; (2) to ensure that all school construction, school consolidation and site selection
    (including location of any temporary classrooms) be done in a manner which will prevent the
    recurrence of the dual school structure; and (3) to permit transfers either outside the district or
    into the district only where the cumulative effect thereof will not reduce desegregation in either
    district.
    
                                                     4
           In August 1996, James and Sandra Godfrey and others (collectively “Godfrey
    
    intervenors”) moved to intervene, seeking to modify the 1995 consent decree and ultimately to
    
    vacate it. At a hearing before Judge Vining on June 23, 1997, the Godfrey intervenors argued
    
    that the 1973 Order had conferred a finding of unitary status on the Troup County School
    
    District, thereby indicating that retention of federal court jurisdiction or supervision was
    
    inappropriate. The court thereupon terminated the hearing and requested briefs on that threshold
    
    issue raised by the Godfrey intervenors.
    
           After receiving the parties’ briefs, the district court issued an order on September 30,
    
    1997, construing the 1973 Order as a declaration of “unitary status.” Holding that federal court
    
    jurisdiction and supervision thereafter was inappropriate, the court vacated its 1995 Order
    
    approving the consent decree. The Order also granted the Godfrey intervenors’ motion to
    
    intervene for the limited purpose of allowing them to participate in this appeal. All other
    
    pending motions were dismissed as moot. Plaintiffs then filed timely notices of appeal.2
    
    
    
    
                                            III.   DISCUSSION
    
           In this appeal, Plaintiffs and Troup County urge us to reverse the district court’s order of
    
    September 30, 1997. They argue that the 1973 Order, though it mentioned the term “unitary,”
    
    did not constitute a finding that Troup County had achieved “unitary status.” They argue that the
    
    
    
           2
             The Godfrey intervenors’ subsequent motion for summary affirmance of the district
    court’s order was denied by this court. Their motion for expedited appeal, however, was
    granted. Plaintiffs’ motion for summary reversal of the district court order is still pending before
    this court, and is now denied as moot in light of our disposition of this appeal.
    
                                                      5
    1973 Order did not dismiss the case, but, quite the contrary, issued a permanent injunction and
    
    placed the case on an inactive docket subject to reactivation upon application by any party.
    
    Furthermore, they argue that all the parties to this case have for 24 years operated under the
    
    assumption that they were subject to federal court supervision, relying upon the obvious import
    
    of the 1973 Order and also relying upon numerous decisions in this and companion cases (which
    
    were also subject to the 1973 Order). Several of these decisions were previous opinions by the
    
    district court for the Northern District of Georgia, but one was rendered by the Eleventh Circuit
    
    itself, Georgia State Conference of Branches of NAACP v. Georgia, 
    775 F.2d 1403
     (11th Cir.
    
    1985). On the other hand, the Godfrey intervenors argue on appeal that the court below correctly
    
    interpreted the 1973 Order.
    
           We agree with Plaintiffs and Troup County. It is clear to us that the 1973 Order was not
    
    intended to be a finding that Troup County had achieved “unitary status.”3 It is clear that the
    
    1973 Order did not dismiss the case or end federal court jurisdiction or supervision thereof; to
    
    the contrary, it imposed upon Troup County a permanent injunction and placed the case on its
    
    inactive docket, subject to reactivation upon application by any party. First, we discuss the case
    
    law which sets out the appropriate analysis for the determination as to whether a school district
    
    has achieved “unitary status.” Then we set forth the reasoning which leads us to our
    
    interpretation of the 1973 Order.
    
    
    
     A. The Relevant Case Law
    
    
           3
             We assume arguendo that the district court’s interpretation of the 1973 Order is a
    finding of fact subject to the clearly erroneous standard of review. We hold that the district
    court’s assessment of the order was clearly erroneous.
    
                                                     6
           The appropriate analysis for determining whether or not a school district that has
    
    practiced de jure segregation has achieved “unitary status” is well established by the case law in
    
    this circuit and the Supreme Court. Drawing upon Freeman v. Pitts, 
    503 U.S. 467
    , 
    112 S. Ct. 1430
     (1992), and Board of Education of Oklahoma City v. Dowell, 
    498 U.S. 236
    , 
    111 S. Ct. 630
    
    (1991), this circuit in Lockett v. Board of Education of Muscogee County, 
    111 F.3d 839
     (11th
    
    Cir. 1997), set forth the following analysis:
    
           Utilizing sound discretion after 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. ... In its
           discretion, a district court may consider other facets.
    
    Id. at 842. Upon finding that a school system has achieved “unitary status,” the district court
    
    must end its supervision of the school system and dismiss the case. Id. (citing Dowell, 498 U.S.
    
    at 248, 111 S.Ct. at 637, and Freeman, 503 U.S. at 489, 112 S.Ct. at 1445). Of course, a finding
    
    of “unitary status” and an order dismissing the case, thus ending federal court jurisdiction over
    
    and supervision of the school district, would be wholly inconsistent with the continuation of any
    
    federal court injunction. See Freeman, 503 U.S. at 491, 112 S.Ct. at 1445 (“A remedy is
    
    justifiable only insofar as it advances the ultimate objective of alleviating the initial
    
    constitutional violation.”).
    
    
    
    
                                                       7
     B. Interpretation of the 1973 Order
    
            We turn now to the reasons leading to our interpretation of the 1973 Order. The plain
    
    language and context of the 1973 Order, the historical context, and precedent all point
    
    ineluctably to the conclusion that the 1973 Order was not intended to be a finding of “unitary
    
    status” and an end to federal court jurisdiction over and supervision of the Troup County School
    
    District.
    
            1. The Plain Language and Context of the 1973 Order
    
            The 1973 Order did not dismiss the case, and did not end federal court jurisdiction over
    
    and supervision of the school district. Quite the contrary, although vacating the more detailed
    
    earlier injunction, the 1973 Order issued a new permanent injunction, imposing certain
    
    obligations on Troup County.4 The fact that the 1973 Order imposed this permanent injunction
    
    upon Troup County is wholly inconsistent with an end to federal jurisdiction over and
    
    supervision of the school district. It follows logically that the 1973 Order could not have been
    
    intended as a finding of “unitary status.”
    
    
    
            4
              We reject the argument of the Godfrey intervenors that the permanent injunction was
    merely an “obey the law” injunction, imposing upon Troup County merely the same obligations
    that all school systems have under the Constitution and applicable laws. Contrary to their
    argument, the instant permanent injunction imposed upon Troup County obligations over and
    above those that would be owed by a school system which had never practiced de jure
    segregation or a school system which had achieved “unitary status.” For example, the permanent
    injunction imposed upon Troup County an obligation to maintain a majority-to-minority transfer
    plan, and obligated Troup County to make space available for such transfers, and obligated
    Troup County to provide free transportation for such transfers. A school system which had
    never practiced de jure segregation, or which had achieved “unitary status,” would not be subject
    to such obligations. Similarly, the permanent injunction imposed upon Troup County an
    obligation not to permit transfers either outside the district or into the district where the
    cumulative effect thereof would be to reduce desegregation in either district. Again, this is an
    obligation over and above what is per se required by the Constitution and applicable laws.
    
                                                    8
           As the above discussion of the relevant case law reflects, a crucial finding required in any
    
    determination that a school system has achieved “unitary status” is a finding that the vestiges of
    
    past discrimination have been eliminated to the extent practicable. See e.g., Lockett, 111 F.3d at
    
    842. However, the language of the 1973 Order is searched in vain for any mention at all of
    
    vestiges of discrimination. The matter simply was not addressed, and therefore the 1973 Order
    
    could not have been intended as a finding of “unitary status.”
    
           Similarly, instead of dismissing the case, as would be appropriate upon a finding of
    
    “unitary status” and an end of federal jurisdiction and supervision, the 1973 Order placed the
    
    case on an inactive docket subject to being reactivated by application of any party. Again, this
    
    feature of the 1973 Order is inconsistent with the interpretation urged by the Godfrey
    
    intervenors.
    
           The context of the 1973 Order also supports our interpretation. The Show Cause Order
    
    that preceded the 1973 Order required the parties to show cause why the case should not be
    
    dismissed. In its response, the United States specifically opposed dismissing the case. Rather,
    
    the United States recommended dissolution of the previously entered detailed injunction and
    
    substitution of a new permanent injunction, the terms of which were set forth in an attached
    
    proposed order. The United States also represented in its response that it would monitor the
    
    school district’s compliance by analyzing the reports to be filed by the school system and
    
    investigating any complaints.
    
           The 1973 Order incorporated almost verbatim the proposed order suggested by the
    
    United States. The significance of this context is that, although the Show Cause Order had
    
    contemplated dismissing the case, the 1973 Order obviously acceded to the government’s
    
    
                                                     9
    recommendation that the case not be dismissed. Instead, the Order imposed a new permanent
    
    injunction upon Troup County and placed the case upon the inactive docket subject to being
    
    reactivated upon application of any party. The 1973 Order departed from the proposed order in
    
    only one way which has any relevance to this case. The proposed order had provided for
    
    automatic dismissal of the case after seven years of substantial compliance with the new
    
    permanent injunction. The 1973 Order did not incorporate that provision; rather, it left the new
    
    permanent injunction in place for an indefinite period of time. Thus, the 1973 Order obviously
    
    left the matter of dismissing the case until a later time (e.g., upon reactivation of the case by any
    
    party).
    
              2. The Historical Context
    
              In addition to the plain language and the context of the 1973 Order, the historical context
    
    also supports our interpretation of the 1973 Order. The Godfrey intervenors rely upon the
    
    following language from the 1973 Order:
    
              [T]he Troup County School District ... [has] for three school years complied with
              the Supreme Court’s decision in Brown v. Board of Education, 
    347 U.S. 483
              (1954), and has become “unitary” in the sense required by the Supreme Court’s
              decisions in Greene [citation omitted] and Swann [citation omitted].
    
    We believe that this language, and its use of the term “unitary” must be understood in light of the
    
    meaning which courts in this circuit, in and around the 1973 time frame, were giving to the term
    
    “unitary.” The panel in Lee v. Etowah County Board of Education, 
    963 F.2d 1416
    , 1419 n.3
    
    (11th Cir. 1992), citing and quoting from Georgia State Conference of Branches of NAACP v.
    
    Georgia, 
    775 F.2d 1403
    , 1413 n.12 (11th Cir. 1985), aptly described the meaning which courts in
    
    this circuit had previously attributed to the term “unitary,” and distinguished that earlier meaning
    
    
    
    
                                                      10
    from the meaning of “unitary status.”5 To summarize, under the terminology prevalent at the
    
    time of the 1973 Order, a school district was often found to be “unitary” merely because it had
    
    not operated segregated schools as proscribed by Swann for a period of several years. Although
    
    labeled “unitary” during the 1973 time frame, the school districts involved may still have been
    
    operating educational systems bearing the vestiges of discrimination and thus were still subject
    
    to federal court supervision. That is, they had not yet achieved “unitary status.” As described
    
    above and as described in Lee v. Etowah County, “unitary status” requires a judicial
    
    
    
    
           5
               It is useful to recite Note 3 from Lee in full:
    
           Much confusion has arisen from the use of the terms “unitary”and “unitary
           status.” In Georgia State Conference of Branches of NAACP v. Georgia, 
    775 F.2d 1403
    , 1413 n. 12 (11th Cir. 1985), this court defined a “unitary” school
           system as one that “has not operated segregated schools as proscribed by cases
           such as Swann [v. Charlotte-Mecklenburg Bd. of Educ., 
    402 U.S. 1
    , 
    91 S. Ct. 1267
    , 
    28 L. Ed. 2d 554
     (1971)] . . . for a period of several years.” The court stated
           that a school system that “has achieved unitary status is one which is not only
           unitary but has eliminated the vestiges of its prior discrimination and has been
           adjudicated as such through the proper judicial procedures.” Id. This court later
           rejected this labeling system and argued that the term “unitary” should be used
           “only when referring to the status that a school board must achieve to be freed
           from district court jurisdiction.” Pitts v. Freeman, 
    887 F.2d 1438
    , 1445 n. 7 (11th
           Cir. 1989), rev’d on other grounds, 
    503 U.S. 465
    , 
    112 S. Ct. 1430
    , 
    118 L. Ed. 2d 108
     (1992).
                   To minimize confusion, we discourage the future use of the term “unitary”
           to describe a system that has not eliminated the vestiges of past discrimination to
           the extent practicable but is merely currently in compliance with a court-imposed
           desegregation plan; nevertheless, we assume for the purposes of this opinion that
           the district court used the term “unitary” at this stage of this litigation to convey
           just such a meaning.
    
           Lee, 963 F.2d at 1419 n.3.
    
                                                        11
    determination that a school district has implemented a desegregation plan in good faith and that
    
    the vestiges of discrimination have been eliminated to the extent practicable.6
    
            Interpreting the 1973 Order in the context of its time, we believe that the 1973 Order’s
    
    reference to the term “unitary” was not meant to embody a finding of “unitary status.” Rather,
    
    the mention of the term “unitary” in the 1973 Order merely meant that Troup County no longer
    
    officially sanctioned a dual school structure.7 Not constituting a finding of “unitary status,” the
    
    1973 Order did not end federal court supervision of the case.
    
            This historical context undermines the primary argument of the Godfrey intervenors in
    
    this case. Based on the mere fact that the 1973 Order used the term “unitary,” the Godfrey
    
    intervenors argue that the 1973 Order must have intended to accomplish all that later courts
    
    required to establish “unitary status.” The historical context explains that the 1973 court meant
    
    something entirely different. The use of the term “unitary” in the 1973 time frame was entirely
    
    consistent with the court’s failure, so far as the text of the 1973 Order itself or the record in this
    
    case indicates, to make any determination as to whether or not the vestiges of discrimination had
    
    
            6
              The Supreme Court has also recognized the different meanings which courts have
    attached to the term “unitary.” See Board of Ed. of Oklahoma City v. Dowell, 
    498 U.S. 237
    ,
    245, 
    111 S. Ct. 630
    , 635 (1991) (citing Georgia State Conf. and other cases, the Court recognized
    that “a school district could be called unitary and nevertheless still contain vestiges of past
    discrimination”).
            7
              This belief is reinforced by the similar situations involved in Steele v. Board of Public
    Instruction of Leon County, 
    448 F.2d 767
     (5th Cir. 1971), and Youngblood v. Board of Public
    Instruction of Bay County, 
    448 F.2d 770
     (5th Cir. 1971). In those two cases, the former Fifth
    Circuit vacated the orders of two district courts which had dismissed two desegregation cases
    after finding that the school systems were desegregated and “unitary” in nature. The plaintiffs in
    both cases argued that the cases should not be dismissed, but should instead be placed on the
    inactive docket for the next three school years at which time dismissal after notice and hearing
    could be considered. The former Fifth Circuit agreed and remanded the cases with instructions
    for the district court to reinstate the actions.
    
                                                      12
    been eliminated to the extent practicable. The 1973 meaning of the term “unitary” is also
    
    consistent with the fact that the 1973 Order did not dismiss the case, but rather issued a
    
    permanent injunction and kept the case open on its inactive docket, subject to reactivation upon
    
    application of any party. While these things are consistent with the 1973 meaning of the term
    
    “unitary,” they are of course flatly inconsistent with the achievement of “unitary status,” which
    
    would require a determination that the vestiges of discrimination had been eliminated to the
    
    extent practicable and would call for dismissal of the case and withdrawal of federal jurisdiction
    
    and supervision.
    
    
    
           3. Precedent
    
           Finally, binding precedent supports our interpretation of the 1973 Order. The very 1973
    
    Order at issue in this case was before this Court in Georgia State Conference of Branches of
    
    NAACP v. Georgia, 
    775 F.2d 1403
     (11th Cir. 1985). That case involved the Coweta County
    
    School District, not the Troup County School District, but the same order was before the Court,
    
    because the 1973 Order governed both the Coweta and Troup County School Districts. See
    
    United States v. Georgia, No. 12, 972 (N.D. Ga. July 23, 1973). Although this Court noted that
    
    the 1973 Order had referred to the Coweta County School District as “unitary,” this Court held
    
    that the school district had yet to achieve “unitary status” and found that the case was not a
    
    concluded case. Georgia State Conference at 1413-14 & nn. 11-12. And although the parties to
    
    this case were not parties in the Georgia State Conference case, that panel’s conclusion with
    
    respect to the posture of United States v. Georgia, No. 12, 972, is entitled to weight pursuant to
    
    the doctrine of stare decisis. There is no indication that the facts relevant to this Court’s
    
    
                                                      13
    discussion in Georgia State Conference were notably different than the operative facts in the
    
    instant record.
    
    
    
    
                                            IV. CONCLUSION
    
           Based on the foregoing reasons, it is clear that the 1973 Order was not intended as a
    
    finding that Troup County had achieved “unitary status” as of that time.8 Our interpretation of
    
    the 1973 Order is clear from the plain language of the 1973 Order itself which is flatly
    
    inconsistent with having been intended as a finding of “unitary status.” Our interpretation is also
    
    supported by the historical meaning of the term “unitary” in the 1973 time frame, and by
    
    precedent. Accordingly, the judgment of the district court is reversed and the case is remanded
    
    for further proceedings not inconsistent with this opinion.
    
           REVERSED AND REMANDED.
    
    
    
    
           8
              Nothing in this opinion should be read as commenting on whether the Troup County
    School District has indeed achieved “unitary status” since the 1973 Order. Thus, Troup County
    is in no way prohibited from seeking a declaration of “unitary status” at the earliest possible
    juncture. Our holding today confirms only that the 1973 Order does not constitute a finding of
    “unitary status” so as to make it inappropriate for the district court to have retained jurisdiction
    and supervision of this case over the intervening years. Our holding today does not pretermit
    appropriate proceedings in the future, pursuant to Lockett v. Board of Education of Muscogee
    County, 
    111 F.3d 839
     (11th Cir. 1997), which might culminate in a finding of “unitary status.”
    
                                                     14