No. 96-9062.United States Court of Appeals, Eleventh Circuit.
DECIDED April 8, 1999.
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Dennis J. Dimsey, Miriam R. Eisenstein, Civil Rights Division, Washington, DC, Dennis D. Parker, NAACP Legal Defense Fund, New York City, for Plaintiffs-Appellants.
Phillip L. Hartley, Martha M. Pearson, Harben Hartley, Gainsville, GA, for Defendants-Appellees.
A. Lee Parks, Kirwan, Parks, Chesin and Miller, Atlanta, GA, for Godfreys.
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Appeals from the United States District Court for the Northern District of Georgia, (No. 1:69-CV-12972-RLV), Rovert L. Vining, Judge.
Before ANDERSON and BARKETT, Circuit Judges, and HILL, Senior Circuit Judge.
ANDERSON, Circuit Judge:
[1] I. OVERVIEW[2] The United States and intervenors Charles Ridley et al. (collectively “Plaintiffs”) appeal from the district court’s order approving the Meriwether County Board of Education’s (“Board”) “Five Year Facilities Plan” (“Plan”). Plaintiffs contend that the district court applied the wrong legal standard in gauging the Plan and assert that the court’s subsequent approval of the Plan constituted an abuse of discretion. For the reasons stated below, we disagree. Accordingly, we affirm.
II. FACTS AND PROCEDURAL HISTORY
[3] The facts relevant to this appeal begin in 1988. The point of contention was the issue of a consolidated high school for Meriwether County.[1] Plaintiffs favored the construction of a consolidated school, whereas the 1988 Board did not. In April of 1988, following the election of a new Board, the new Board disavowed an earlier proposal adopted by the 1987 Board prior to the election that had promoted the construction of a consolidated high school. The Board’s about face against consolidation was due to a shift in its political alignment — a majority of the board now opposed consolidation, whereas only months before a majority had favored it.
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closing of one high school, Woodbury High School, halted intra-district transfers (except majority-to-minority transfers) and halted new inter-district transfers (except for students who lived within the Manchester city limits of Talbot County). Furthermore, the court ordered equalization of the curriculum of all schools in the district and achievement of racial balance in teaching and staff assignments. Again, however, the court did not order consolidation. No appeal was taken from this ruling.
[6] In January 1993, the Board realigned itself, and again moved toward the construction of a consolidated high school. At the request of all parties, on January 27, 1993, the district court ordered the State of Georgia to release the state funds that had been earmarked for the building of the consolidated high school to Meriwether County. Nine days later, Coleman Bass[4] and others opposed to consolidation filed a motion to intervene, seeking to enjoin the distribution of the funds for consolidation. All parties to the litigation opposed the intervention, and on March 2, 1993, the district court denied the intervention motion.[5] [7] On May 27, 1993, before the funds for construction had been released, however, the putative intervenors succeeded in enjoining the Board from pursuing the consolidation project by winning a temporary restraining order from Fulton County Superior Court Judge William Daniel.[6] The Board appealed the decision to the Georgia Supreme Court, but that court dismissed the appeal on October 31, 1994. Meriwether County Board of Education v. Bass et al., Docket No. S95A0115 (Ga. 1994). The Board then approached the populace of Meriwether County for guidance, placing before it in a referendum the issue of closing the two existing high schools, Greenville and Manchester, and building a consolidated school. The voters rejected the proposal on November 8, 1994. [8] Defeated yet again, the Board abandoned the consolidation effort and returned to developing a new facilities plan using a two-high school model. After several modifications, the final version of the Plan was adopted by a unanimous Board.[7] The Board submitted the Plan to the district court for approval on January 23, 1996. The court approved. The United States and the intervenors (“Plaintiffs”) did not sign on, however. They filed objections to the Plan on March 22, 1996. The district court issued an opinion approving the Plan on August 22, 1996, and disagreeing with the Plaintiffs that the Plan constituted a violation of the school district’s desegregation obligations. Plaintiffs now appeal that ruling.III. STANDARD OF REVIEW
[9] A district court’s approval of a proposed facilities plan is reviewed for abuse of discretion. Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090, 1091 (11th Cir. 1992). Its findings of fact are reviewed under the clearly erroneous standard. Lee v. Anniston City Sch. Sys., 737 F.2d 952, 955 (11th Cir. 1984) (citing Ross v.
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Houston Independent Sch. Dist., 699 F.2d 218, 226 (5th Cir. 1983)).[8]
IV. DISCUSSION
[10] At core, a federal court’s obligation is to enforce the constitutional mandate “[t]hat the duty and responsibility of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutiona de jure system.” Freeman v. Pitts, 503 U.S. 467, 485, 112 S.Ct. 1430, 1443, 118 L.Ed.2d 108 (1992). But while the court clearly has as its goal to remedy the underlying constitutional violation, a federal court “in devising a remedy must take into account the interest of state and local authorities in managing their own affairs, consistent with the Constitution.” Milliken v. Bradley, 433 U.S. 267, 280-81, 97 S.Ct. 2749, 2757-58, 53 L.Ed.2d 745 (1977); see also Freeman, 503 U.S. at 489, 112 S.Ct. at 1445 (“We have said that the court’s end purpose must be to remedy the violation and, in addition, to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.”) (citing Milliken). Indeed, this court has pointed out that “[o]ne of the ultimate considerations in a desegregation case is that the basic administration of a school district, such as the number and location of schools, should be left to the political process.” United States v. Georgia, 19 F.3d 1388, 1392 (11th Cir. 1994). Thus, while the school district has a continuing obligation “to act in a manner that would prevent a recurrence of the previous dual school system,” Adams v. Board of Pub. Educ., 770 F.2d 1562, 1565 (11th Cir. 1985), it is a federal court’s duty to recall, upon a showing of good faith by the school district that it has complied with the desegregation order to the extent practicable, that the “`school authorities have the primary responsibility for elucidating, assessing and solving these problems.'” Lee v. Anniston City Sch. Sys., 737 F.2d 952, 955 (11th Cir. 1984) (quoting Milliken v. Bradley, 433 U.S. at 281, 97 S.Ct. at 2757). Against this backdrop, we approach the narrow question presented here-whether the district court abused its discretion in approving the Board’s Plan. Plaintiffs argue generally that the district court abused its discretion in approving the Plan, and they point to specific instances in which they contend that the district court applied erroneous legal principles. We address both in our discussion below.
(11th Cir. 1984) (discussing whether school closing was racially motivated and concluding it was not). The district court considered the absence of racial animus as only one
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factor in its examination of the Plan, and having checked that factor off its list for lack of any supporting evidence, moved on to consider other factors-such as the effects of the Plan. We cannot say this methodology was an abuse of a discretion.
[13] Indeed, any plan that was motivated by discriminatory intent would certainly perpetuate the vestiges of discrimination and thus would not meet the school district’s obligation unde Freeman. By frontally eliminating this possibility, the court was simply attacking the case from the ground up, and considering the multifaceted inquiry that desegregation jurisprudence entails. We cannot fault the approach of looking first to motive and then to effects. [14] In addition to the lack of intentional discrimination, the court went on to consider five of the six factors from Green v. County School Bd. of New Kent County, 391 U.S. 430, 437, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716 (1968). The si Green factors are: student assignments, transportation, faculty, staff, extracurricular activities, and facilities Id. By addressing the lion’s share of these factors, the district court applied the proper legal standard articulated i Green, for the Green factors are the guideposts in a court’s determination as to whether a proposed plan would eliminate the “vestiges of de jure segregation . . . as far as practicable.” See Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237, 250, 111 S.Ct. 630, 638, 112 L.Ed.2d 715 (1991) (stating that courts should look to the Greenfactors in considering whether vestiges of past discrimination have been eliminated to the extent practicable). Therefore, we are satisfied that by following the directives of Green,
the district court employed the proper legal standard in gauging the Plan-that is, whether the Plan eliminated the vestiges of prior de jure segregation to the extent practicable.
A. Student Assignments
[15] One such vestige, indeed the hallmark of a dual system, is schools that are markedly identifiable in terms of race Freeman, 503 U.S. at 487, 112 S.Ct. at 1443. The district court expressly addressed the Plaintiffs’ concerns regarding racial identifiability with respect to student assignments on pages 6 and 7 of the order, finding that, none of the schools were projected to have an enrollment that differed more than 20% from the district-wide ratio, and that the schools were not impermissibly racially identifiable. Order at 6-7.[9]
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finding with respect to lack of racial identifiability, and its conclusion in this regard was not clearly erroneous.
[18] Plaintiffs would have us impose an obligation on the Meriwether County school district that is far stricter than the one announced by the Supreme Court in Freeman. The court clearly stated in Freeman:[19] Id., 503 U.S. at 494, 112 S.Ct. at 1447. [20] Meriwether County’s population center is located in the southern portion of the county and that portion contains a larger percentage of white residents than do the central and northern portions of the county. Thus, it follows that the northern and central schools would have a higher percentage of black students than those in the southern region. The district court found, however, that this is the result of the above stated demographics and is not traceable to a prior de jure policy of segregation. We cannot conclude that this finding is clearly erroneous. Plaintiffs concede as much by stating that “[w]hile it may be true that the present population of the high schools as well as that of the elementary schools reflects residential patterns in the county, it is not written in stone that this relatively small county must be divided on a north-south axis for school attendance purposes. Traveling from north to south and vice versa to attend school is not impossible.” Brief of United States at 32. [21] Plaintiffs’ contention ignores the teaching o Freeman that racial balance is not an end in itself. Therefore, while it is not “impossible” to dramatically alter the attendance zones, neither is it necessary under Freeman,That there was racial imbalance in student attendance zones was not tantamount to a showing that the school district was in non-compliance with the decree or with its duties under the law. Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.
so long as they are not vestiges of past discrimination. The law does not make a school district a prisoner based on factors, such as demographic tendencies, that are beyond its control. This is the clear import of Freeman. See id. at 495, 112 S.Ct. at 1448 (noting that where racial imbalances spring not from state action but from private choices the imbalances do not have constitutional implications). Once a court satisfies itself that the enrollment patterns are not the product of de jure
segregation, as the district court did here, the school district need not wage a battle against demographics to achieve perfect racial balance. Freeman, 503 U.S. at 494-95, 112 S.Ct. at 1447-48. [22] An important consideration in this context is the school district’s good faith. Freeman, 503 U.S. at 494, 112 S.Ct. at 1448; Lee, 737 F.2d at 956 (11th Cir. 1984). Meriwether County has demonstrated its good faith by pursuing a consolidated high school in 1993 and 1994, characterized by the Plaintiffs as the most desegregative alternative, and arguing against the intervention of those who opposed consolidation i United States v. Georgia. Having lost the fight for consolidation[10] in state court, and at the polls, and recognizing that the entire school system was in need of significant repair, the Board decided to pursue a course that was the most practicable and the most beneficial to the most schools in the county.[11] We are persuaded that the
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Board did arrive at the current Plan in a good faith attempt to comply with its desegregation obligations to the most practicable extent.
[23] Another important consideration is what this court has referred to as “the limits of practicalities such as funding and transportation.” Lee, 737 F.2d at 957. Meriwether County has encountered severe difficulty in recent years in passing bond referenda to finance school construction projects. In fact, not one succeeded until September 1996[12] the one approving funding for the Plan currently challenged by Plaintiffs. Yet Plaintiffs would have us set aside this success, because, in their eyes, a Plan could be adopted that would achieve more perfect racial balance.[13] As noted above, there was no obligation in Freeman to remedy imbalances that are a function of demographics; the circumstances are similar here, and there is likewise no such obligation here. The district court must view the Plan by the standard that it must eliminate the vestiges of the prior unconstitutional system to the extent practicable Freeman, 503 U.S. at 492, 112 S.Ct. at 1446. Dramatically altering attendance zones, when not constitutionally required, and demonstrably politically unpopular,[14]Page 1341
is not a necessary path to take. Accord Lee, 737 F.2d at 956 (rejecting the plaintiffs’ argument favoring a plan for the purpose of achieving even greater desegregation under circumstances similar to those in the instant case). All parties agree that the schools in Meriwether County are in poor condition and continue to deteriorate. Where, as here, there is no evidence of intentional discrimination and the Plan is consistent with the obligation to eliminate any vestiges of past de jure segregation to the extent practicable, we agree with the district court that the economically feasible Plan which has already been approved by the voters of Meriwether County is constitutionally acceptable, and is consistent with the preexisting court decrees.
B. Transportation
[24] The district court also found in response to Plaintiffs’ objections to the Plan’s effects on transportation that any transportation “disruption(s)” would stem from demographic factors and not a constitutionally suspect scheme of segregation.[15] In so finding, the court was deducing from Freeman, 503 U.S. at 467, 112 S.Ct. at 1430, that because racial imbalances in attendance zones resulting from demographics and not prior de jure segregation are not unconstitutional, then disproportionate transportation burdens stemming from demographic sources are likewise not unconstitutional. Again, it is undisputed that Meriwether County’s population center is in its southern region and that more of the white population resides in this section of the county than the central or northern sections of the county. Consequently, the fact that white students may be somewhat less burdened by the transportation scheme is a function of demographics and not a constitutional violation. In light o Freeman, we cannot say that the district court clearly erred in so finding.
C. Faculty/Staff Assignments and Extracurricular Activities
[25] The district court expressly refers to faculty and staff assignments in its order, but concludes “because no assignments have been made and because faculty and administrators can change from year to year, this court is unwilling to assume an improper assignment of faculty or administrators based upon the speculations of Dr. Gordon, the government, and intervenors.” Order at 8. Therefore, the court decided “the more prudent approach is to wait and see what changes are actually made and then decide whether those changes were improper.” Id.
None of the briefs to this Court address the matter and Plaintiffs’ briefs to the district court are not particularly helpful either, citing only general concerns that the Plan will result in excess faculty and that the Plan will not address the racial identifiability of faculty and administrator assignments. Defendants respond by arguing that it is premature to criticize the assignments before they have been made. Especially in light of the lack of adversarial development with respect to faculty and staff assignments, we find the “wait and see” approach of the district court is not an abuse of discretion. With respect to extracurricular activities, there was no mention of thi Green factor, in the briefs to our Court or in the briefs to the district court. We assume that the
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district court also took a “wait and see” approach with respect to this factor, as it did with the faculty/staff assignment factor, and we find no abuse of discretion.
D. Facilities
[26] With respect to the facilities called for under the Plan, Plaintiffs make several objections. First, they object to the construction priorities in the overall Plan. Under Phase 1, two new consolidated elementary schools would be built: a new North Elementary School, combining the populations of Luthersville and McCrary school, and a new South Central Elementary, combining the populations of Manchester Elementary and Warm Springs. Finally, a new high school was planned for the Greenville area.[16]
Plaintiffs contend that Phase 1 of the Plan results in “putting white children first [because it] is easier to sell to the citizenry that must vote for the bond issue.”[17] Brief of United States at 33. This argument is without merit.
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1. Nor was it unreasonable[18] for the Board to consider the fact that it would enhance the chances of passage of the bond issue for Phase 1 to include a fair allocation of resources to the southern portion of the county, the population center of the county. As Mr. Hicks noted, the bond issue (and thus the construction of the two predominantly black schools) was likely to fail without a fair allocation for the southern population center. We reject Plaintiffs’ argument that this well-discussed and well-bargained political compromise runs afoul of the constitutional guideposts set out in Green. Indeed, it is Green
that counsels us to recall “[t]hat the burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.” Green, 391 U.S. at 439, 88 S.Ct. at 1694. We agree with the district court that the Board, after twelve years of debate, has produced a Plan that honors its desegregation obligations under the 1973 Order and under the case law, and successfully incorporates a bond issue for Phase 1 construction which has already passed.
V. CONCLUSION
[30] Having carefully considered the district court’s order, the Board’s Plan, the Plaintiffs’ objections to both, and the school district’s response thereto, we conclude that the district court did not abuse its discretion in approving the Board’s Plan. We agree with the judgment of the district court that the Meriwether County School Board in pursuing its proposed Facilities Plan district has complied with the constitutional mandate o Green to the extent practicable. Accordingly, we hold that the school district has addressed the significant and unquestioned needs of its antiquated system, while striking the proper balance between its desegregation obligations and its obligation to the citizens of Meriwether County to come forward with a realistic plan that promises to work, and to work now. We conclude that the district court did not abuse its discretion in approving the Plan; the Plan is consistent with the Board’s desegregation obligations under the previous orders and with the relevant case law outlining the Board’s constitutional obligations.
The 1973 Order is the same order with respect to which an intervenor in a companion case takes the position that the 1973 Order constituted a finding of “unitary status.” No such argument is made in this case, but in any event, we reject that argument in the companion case in a decision issued simultaneously with this decision. See United States v. Georgia, ___ F.3d ___ (No. 97-9199, 11th Cir. 1999).
I will not make a decision in this case on the basis or having as one of its premises that one high school would be superior to two. I do not think that’s for me to say. It may be that one high school would be superior to two, but I think the basis of my decision must be, or the standard must be, whether the plan as adopted and put into effect by the school board at my direction will ensure that a segregated system is not maintained or returned to. I think that, broadly speaking, that has got to be the basis.
Transcript of Proceedings, May 31, 1990 Hearing at 98.
was also fully litigated before Judge Vining, and in 1990 Judge Vining held that a consolidated high school was not constitutionally required. See supra note 3. Plaintiffs do not ask us to revisit that ruling.
I think the first priority there’s never any question, everybody on the board unanimously from day one has always known [that] Luthersville/McCrary is our biggest need . . . [T]he board members from the south and the north have consistently, said, if we don’t do anything else, that elementary will be built. So that was the first priority under anybody’s plan . . . The [Greenville] high school had to be the second priority to get a plan period. To get unanimous board approval, the high school had to be the second priority. That was the way the plan developed. For the folks to salvage something from this ten years [of litigation], that high school had to be the second priority. So then it just comes down to how much you’re talking about. If you’re talking twelve million dollars or a limited amount of money, there’s only one more project and Warm Springs is the oldest elementary school we have in the county. It’s the oldest physical facility we have in the county. Greenville and Woodbury have been — are in much better physical shape than the Warm Springs one is and if you want to go back and look, the oldest renovated elementary we have in the county, the last time renovations were done to any of them, the oldest one is Manchester . . . To pass this bond referendum, we have got to have the support in the south part of the county [the population center]. You’re not going to pass the bond referendum without support in the south part of the county.
Hicks Deposition at 75-76.
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