Moore v. City of Charlotte Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    No. 92-8087

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

i

JERRY LOCKETT, et. al.,
Plaintiffs/Appellants,
vs.

THE BOARD OF EDUCATION OF MUSCOGEE 
COUNTY SCHOOL DISTRICT, et. al.,

Defendants/Appellees.

APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE MIDDLE DISTRICT OF 

GEORGIA, COLUMBUS DIVISION

BRIEF OF DEFENDANTS/APPELLEES

HATCHER, STUBBS, LAND, HOLLIS 
& ROTHSCHILD

BY:___________________
WILLIAM B. HARDEGREE 
JAMES E. HUMES, II 
JOSEPH L. WALDREP

Attorneys for Defendants/Appellees

P. O. BOX 2707 
Columbus, GA 31993-5699 

(404) 324-0201

i



No. 92-8087

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

I JERRY LOCKETT, et. al.,
i Plaintiffs/Appellants, 

vs.
THE BOARD OF EDUCATION OF MUSCOGEE 
COUNTY SCHOOL DISTRICT, et. al.,

Defendants/Appellees.

DEFENDANTS/APPELLEES' CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following 

listed persons and entities have an interest in the outcome of this ii
appeal:

Board of Education of Muscogee County School District,
! Georgia; Members and Superintendent; Muscogee County School 
District.

|i Gladis R. Crawford.
Honorable J. Robert Elliott, United States District Judge. 
William B. Hardegree, of Hatcher, Stubbs, Land, Hollis & 

j ;  Rothschild, as attorney for the Board of Education of Muscogeei i
i County School District, Georgia, et. al.
|| James E. Humes, II, of Hatcher, Stubbs, Land, Hollis &ii
Rothschild, as attorney for the Board of Education of Muscogee

| i! i  County School District, Georgia, et. al.
!
|

'
11



Amanda Lockett
Robert J. Leonard.
Gwendolyn Lockett.
Jim H. Lockett, Jr.
Dennis D. Parker, as attorney for Jerry Lockett, et. al.
Tina G. Stanford, as attorney for Jerry Lockett, et. al. 
Joseph L. Waldrep, of Hatcher, Stubbs, Land, Hollis & 

Rothschild, as attorney for the Board of Education of Muscogee 
County School District, Georgia, e't. al.

James Walker.

HATCHER, STUBBS, LAND, HOLLIS 
& ROTHSCHILD

BY:

P. 0. BOX 2707 
Columbus, GA 31993-5699 
(404) 324-0201



DEFENDANTS/APPELLEES1 STATEMENT REGARDING ORAL ARGUMENT
Defendants/Appellees can only agree with one portion of the 

Plaintiffs/Appellants1 Statement Regarding Oral Argument, namely 
that the "questions presented are straightforward..." While oral 
argument may not be necessary for this Court to resolve the one 
issue in the case - whether the absence of class certification 
together with the passage of all students through the school systemI
since the desegregation's plan inception moots the case 
Defendants/Appellees request oral 'argument to be able to address 
any questions that this Court might have about the parties' 
respective positions and about the history of the school system's 
performance under applicable principles of school desegregation
mandates.



DEFENDANTS/APPELLEES' TABLE OF CONTENTS

I. Defendants/Appellees' Statement of Jurisdiction...... 1
II. Defendants/Appellees 'Statement of Issues............. 1-2
III. Defendants/Appellees ' Statement of the Case.......... 2-7
IV. Defendants/Appellees ' Summary of the Argument........ 7-9
V. Defendants/Appellees ' Argument and Citations of

Authority.......................................... 10-22
The District Court was correct to dismiss the 
desegregation case against the Muscogee County 
School District for mootness. Although the 
case was filed as a class action and the 
District Court, in one Order, stated the 
circumstances indicated the case was 
appropriate for a class action as to student assignments, the case was never certified 
pursuant to the Federal Rules of Civil 
Procedure, Rule 23 as a class action and none 
of the original Plaintiffs in the case, when 
it was first filed, are still in the school 
system. Pasadena City Board of Education vs. 
Spangler, 427 U.S. 424, (1976).

VI. Conclusion......................................... 22
Certificate of Service.............................  23

v



Cases
Alvarez v. Pan American Life Insurance Company,, 16

375 F.2d 992, 993 (5th Cir.), cert, denied,
389 U.S. 827, 88 S.Ct. 74, 19 L.Ed.2d 82 
(1967)

Amos v. Board of School Directors of the City of 21
Milwaukee, et. al., 408 F.Supp. 765 (E.D.
Wise. 1976)

Atlantis Development Corporation v. United States, 16
379 F.2d 818, 823 (5th Cir. 1967)

Baxter v. Palmigiano, 425 U.S. 310, 311 (1976) 14
City of Los Angeles v. Lyons, 461 U.S. 95, 101, 19-20

103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)
Defunis v. Odegard, 416 U.S. 312, 316 (1974) 18
Dudley v. Stewart, 724 F.2d 1493 (11th Cir. 1984) 8
Freeman v. Pitts, 499 u. s. (1992), 60 U.S.L.w. 9, 22

4287, 4292-931 (March 31, 1992)
Glidden v. Chromallo American Corp. , 808 F.2d 621, 20-21

626 (7th Cir. 1986)
Graves v. Walton County Board of Education, 686 8-12,

F.2d 1135 (5th Circuit, Unit B, 1982) 17
Green v. County School Board, 391 U.S. 4301 (1968) 17
Greenfield v. Villager Industries, et. al., 483 21

F.2d 824 (3rd Cir. 1973)
Indianapolis School Commissioners v. Jacobs, 420 13-14

U.S. 128, 43 L.Ed. 2d 74, 95 S.Ct. 848 (1975)
Inmates v. Sheriff Owens, 561 F.2d 560 (4th Cir. 18

1977)
Jones et. al. v. Caddo Parish School Board, et. 8,

al^,704 F.2d 206 (5th Cir. 1983) 15-16
Laskey v. Quilan, 558 F.2d 1133 (2d cir. 1977) 18

DEFENDANTS/APPELLEES ' TABLE OF AUTHORITIES

vi



Lee v. Macon County Board of Education, 584 F.2d 17
781 (5th Cir. 1978)

Lockett, et. al v. Board of Education of Muscogee 4
County School District, Georgia, et. al., 342 
F.2d 225 (5th Cir. 1964)

Lockett, et. al. v. Board of Education of Muscogee 4
County School District, Georgia, et. al., 391 
F.2d 272 (5th Cir.1965)

Lockett, et. al. v. Board of Education of Muscogee 5
County School District, Georgia, 447 F.2d 472 
(5th Cir. 1972)

Manning v. Upjohn Company, 862 F.2d 545 (5th Cir. 8
1989)

McCray v. Poythress, 638 F.2d 1308 (5th Cir. 1981) 9
Napier v. Gertrude, 542 F.2d 827 (10th Cir. 1976) 18

cert, denied 429 U.S. 1049 (1977)
Pasadena City Board of Education v. Spangler, 427 7-8,

U.S. 424, (1976) 10-12,17-18
Pitts v. Freeman, 755 F.2d 1425 (11th Cir. 1985) 17
Pitts v. Freeman, 887 F.2d 1439 (11th Cir. 1989) 9
Singleton v. Jackson Municipal Separate School 5

District, 419 F.2d 1211 (5th Cir. 1970)
Sosna v. Iowa, 419 U.S. 393, 42 L.Ed.2d 532, 95 13-14

S.Ct. 553 (1975)
Spangler, et. al. v. Pasadena City Board of 12-13,

Education, et.al., 375 F.Supp. 1304, 1305, 17
(C.D. Calif. 1970)

Swann v. Charlotte-Mecklenburg Board of Education, 17
402 U.S. 1, 15 (1971)

Tasby v. Estes, 643 F.2d 1103, 1106 (5th Cir. Unit 16
A, 1981)

Tucker v. Phyfer, 819 F.2d 1030, 1033-1035 (11th 18
Cir. 1987)

vii



United States Parole Commission v. Geraghtyf 445 19-20
U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 679 
(1980)

United States v. Jefferson County Board of 4
Education, 391 F.2d 272 (5th Cir. 1968)

Vuncannon v. Breed, 565 F.2d 1096 (9th Cir. 1977) 18
Willan, et. al. v. Menomonee Falls School Board, 20

et. al., 658 F.Supp. 1416, 1419, (E.D. Wise.
1987)

Wilson v. Secretary of Health and Human Services, 20
671 F.2d 673 (1st Cir. 1982)

Winoquer v. Bell Federal Savings and Loan 18
Association, 560 F.2d 271 (7th Cir.) cert, 
denied 435 U.S. 932 (1977)

Word v. Dearman, 626 F.2d 489 (5th Cir. 1980) 8

Federal Rules of Civil Procedure
Rule 23(a)(3) F.R.C.P. (1938 version) 16

viii



DEFENDANTS/APPELLEES• STATEMENT REGARDING 
ADOPTION OF BRIEFS OF OTHER PARTIES

Defendants/Appellees do not adopt by reference any part of the
Plaintiffs/Appellants' Brief or Amended Brief. Where agreement
exists with certain features of the Briefs, it will be indicated in
Defendants/Appellee1s Brief.

ix



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 92-8087

JERRY LOCKETT, et. al.,
Plaintiffs/Appellants, 
vs.

THE BOARD OF EDUCATION OF MUSCOGEE 
COUNTY SCHOOL DISTRICT, et. al.,

Defehdants/Appellees.

BRIEF OF DEFENDANTS/APPELLEES
I. DEFENDANTS/APPELLEES• STATEMENT OF JURISDICTION

The Board of Education of Muscogee County School District, 
et. al., Defendants/Appellees, ("Defendants/Appellees" or "Board of 
Education") agree with the Jurisdiction Statement set out by Jerry ! 
Lockett, et. al., Plaintiffs/Appellants ("Plaintiffs/Appellants") 
at Page 1 of their Brief, except to note that, in reaction to 
Footnote 1, when Plaintiffs/Appellants state that the District 
Court did not directly address their Motion to Substitute Named 
Plaintiffs, in a status conference with the District Judge on 
December 27, 1991, all parties had agreed that the issue of
mootness was a threshold issue to be decided first.

II. DEFENDANTS/APPELLEES' STATEMENT OF THE ISSUES
Where the parties agree that:
(1) Although this desegregation case was initially filed as 

a class action and the trial court stated that it felt 
circumstances indicated that the case was a proper class 
action as to the issue of student assignments;

1



(2) The case was never certified as a class action; and
(3) As to the original plaintiffs, who are no longer in theI ;

school system, the case is moot,
1 : , ,is it correct for the District Court to subsequently thereafter
i'| dismiss the case for mootness, there being no present case or 
iicontroversy and thus as a result, no subject matter jurisdiction? 
j .  While Plaintiffs/Appellants make the argument that the Trial Court 
i should have first ruled on their June 17, 1991 Motion to Substitute
i Named Plaintiffs [Rl-18] and then held a hearing to determine 
; unitary status, these arguments were not made below, all parties 
!• agreeing in a status conference with the District Court on December 
'27, 1991 that the question of mootness was a threshold issue. In 
! any event, mootness, as it goes to subject matter jurisdiction,
i! should be initially determined, just as the Trial Court did.
i ! III. DEFENDANTS/APPELLEES' STATEMENT OF THE CASE
i;
!1 A. STATEMENT OF FACTS
l (l) Proceedings Below
I |

Plaintiffs/Appellants filed two Motions with the District
! Court, one on April 30, 1991, [Rl-3] and a second on December 5,
i iI: 1991 [ R2—4 0 ] . While Plaintif fs/Appellants state in the
"Proceedings Below" portion of their "Statement of the Case" that

li these are "the most recent in a series of attempts in both thej!
jj District Court and Court of Appeals to require the Defendants/ 
j ;  Appellees to comply with their obligation to take necessary steps
I ■
j j to remove vestiges of the prior unconstitutional school system",
■! in actuality, their April 30, 1991 Motion was the first oppositionj
expressed about the School District's operation and performance

lij under its desegregation plan in the 2 0 years it had been in
i
I

2



existence. [(District Court's January 21, 1992 Opinion and Order,
’ R2-45) ] . The main purpose of the April 30, 1991 Motion was to
force the School Board to reassign students to insure a raciali;
ratio at each elementary school that would be substantially the 
same as the system-wide percentages. (Rl-3). The December 5, 1991 
Motion sought to stop certain construction activities that for the 

!i most part had already been reported to the District Court and 
I, completed. [ (Response of Defendant, Muscogee County Board of 
! Education (R2-42) and Motion to Dismiss (R2-43).] Contrary to 
Plaintiffs/Appellants' statement in the Brief, this appeal actually 
results not from their attempts to require the School Board to

• I, remove vestiges of its procedural system (which the Board has
I j
ji done) , but from the District Court's January 21, 1992 Opinion and
l !1 Order dismissing this case on the threshold issue of mootness.
| (ii) Earlier Proceedings
li . . .Before the initial complaint was filed in this case on January 
13, 1963, the School Board had voluntarily adopted a plan of

i
i| desegregation for the public schools of Muscogee County within the
i!|, system. "No litigation prompted this action. The plan adopted was 
j similar to plans which at that time were being approved by the 
! United States Court of Appeals for the Fifth Circuit."
! [(Memorandum Order and Opinion, District Court, February 5, 1969.
]i| (Exhibit "A")]. Plaintiffs/Appellants chose not to mention in the 
| "Prior Proceedings" portion of their "Statement of the Case" that
I j

:! not once, although requested by Plaintiff s/Appellants on three
i|
;j occasions, did this Court ever enjoin the Board of Education,
l|
ji assess costs or fees, or find any fault with plans submitted. It
j jI! only pointed out changes in the local desegregation plan made

I

11

3



necessary by changing and developing desegregation guidelines being 
contemporaneously issued by the Appellate Courts. Plaintiffs/
Appellants' Brief reads as if its objective is to picture the locali
Board of Education as resistant to and non-compliant with its 
desegregation responsibilities in the sixties and seventies. 
Plaintiffs/ Appellants, upon researching the earlier orders and 

|j decisions, should know better. For example:
(1) This Court in Lockett, et. al. v. Board of Education of 
Muscogee County School District. Georgia, et. al. 342 F.2d 225 
(5th Cir. 1964) affirmed the District Court's denial of the 
Plaintiffs/Appellants' request for an injunction which sought 
a complete reorganization of the school system into a unitary 
system. The Court noted at page 226 that "several months 
prior to suit the School Board had voluntarily adopted and

I . activated a stair-step... type plan of desegregation" and 
added one more grade to it pursuant to recent decisions. The 
Court, in refusing to enjoin Muscogee County, noted that "the 
record discloses a willingness to go forward... and we are

i willing. . . to rely on the integrity and good faith of the 
members of the School Board where they represent, as they have 
here, an intention to effectuate the law."
(2) After this, the Fifth Circuit again affirmed the District

ii Court's denial of Plaintiffs' request for injunctive relief 
pertaining to the desegregation plan. In Lockett, et. al. v. 
Board of Education of Muscogee County School District. 
Georgia, et. al.. 391 F.2d 272 (5th Cir. 1965), this Court
sought the School District's compliance with then recent

Ii decision of United States v. Jefferson County Board of

4



Ili

Education, 391 F.2d 272 (5th Cir. 1968). It noted at page 272
j,

that "The Board adopted its own plan and it was in the process 
of effectuating it prior to suit. ...(and that) Thei
considerable progress made to date has been without the
sanction of an injunction." Page 3 of the Plaintiffs/

|: i
Appellants' Brief seems to indicate the Board had to be

i j ordered to comply with Jefferson.
(3) In Lockett, et. al. v. Board of Education of Muscogee 

I . i
County School District. Georgia. 447 F.2d 472 (5th Cir. 1972)
this Court directed the School District to apply Singleton v. j
Jackson Municipal Separate School District. 419 F.2d 1211 (5th
Cir. 1970) to faculty and staff in addition to the teacher1 |
assignments which had already been done by Muscogee County. 
Again, that was no injunction and none of the defiant attitude 
was suggested in Plaintiffs/Appellants' Brief.j |

The School District's point is that it did in the past operate a 
dual system that had to be dismantled. However, the change to aj '

! unitary system was achieved through cooperation and voluntary
jj compliance and not with the resistance and unwillingness implied by 
I1 i'l the Plaintiff s/Appellants ' Brief. j
!j . .Beginning at the top of page 5 of their Brief, Plaintiffs/ 
ij Appellants have set forth in correct detail the components of the
l|School Board's desegregation plan, dealing with student
I i
■i assignments, faculty and staff placements, student transfers,
Ij transportation, facilities, and extracurricular activities. AsI
j Plaintiffs/Appellants point out on Page 6 of their Brief, the 
j School Board has filed semi-annual reports with the District Court,
| and until the April 30, 1991 Motion, no objections to the Plan, to
!:
ij 5



the School Board's performance thereunder, or the reports were 
made. Plaintiffs/Appellants are correct on page 6 of the Brief
when they state the School Board has never sought to be declared 
"unitary".

(iii) Current Proceedings
As heretofore mentioned, Plaintiff s/Appellants' April 30, 1991 

Motion objected to racial ratios of students assigned to certain I
j elementary schools and sought to have the School Board ordered to 
;! reassign its students in such a 'fashion as to have the racial 
balances at each school reflect the system-wide average (Rl-3). 

jl The only evidentiary support for Plaintiff s/Appellants' Motion was !
!' IAffidavit of Dennis D. Parker, one of their attorneys. It was :

I
1 withdrawn voluntarily (Rl-14), as the case progressed through the 
j' District Court, and Mr. Parker continued in his counsel's role.

The School Board, in its May 20, 1991 Response filed in
l Opposition to Plaintiff's April 30 Motion raised the mootness issue 
|i in its Sixth Defense (Rl-11) , and also in its Seventh Defense ini .I '
the December 19, 1991 Response (R-2-42) as follows:

I;
"This case has never been certified as a class action. |
All of the students within the Muscogee County School 
District at the time the Court's Desegregation Order was 
entered in July 1971 have graduated. The case or 
controversy is now moot. For that reason, the Court has 

I no jurisdiction over the subject matter of the case, and
the same should be dismissed."i ‘

i j
I The aforementioned Affidavit of the School Board's Dr. Bushong, its
I !Deputy Superintendent (Rl-11-17-20), which remains uncontroverted,II
did these three things:

|!
(1) Pointed out the error in Mr. Parker's Affidavit andI'i accompanying charts regarding elementary student populationsiI which contained K-2 numbers, after these grades had been

6



exempted from the requirement of the Plan by the Fifth Circuit 
and the District Court in the early seventies.
(2) Showed that any present racial imbalances in elementary 
student populations, as well as in the higher grades, were due 
to a declining student population (down from 40,000 in 1971 
[30% black and 70% white] to 30,000 in 1991 [approximately 
50-50]), and changes in housing patterns and population shifts 
in the community.
(3) For longer than 3 years and, indeed into the 1976-77 
school year, the School Board kept ratios in 57 of 58 schools 
within 20% of the system-wide average (most with 10%) and the 
58th school was only 22% out of balance.
Then, in response to Plaintiffs/Appellants' December 5, 1991 

Motion which sought to enjoin certain construction projects (R2- 
40), the School Board, in its December 19, 1991 Response (R2-42)
and Motion to Dismiss (R2-43), remade its mootness argument.

B. STANDARD OR SCOPE OF REVIEW 
The Trial Court's decision to dismiss the case for mootness is 

a law question which will be reviewed by this Court on the basis of 
whether the Trial Court correctly formulated and applied a rule of 
law.

IV. DEFENDANTS/APPELLEES• SUMMARY OF THE ARGUMENT
The District Court was correct to dismiss Plaintiffs/ 

Appellants' desegregation case for mootness. The Supreme Court of 
the United States in the decision of Pasadena City Board of 
Education v. Spangler. 427 U.S. 424 (1976) has held as follows on 
this point:

7



"Counsel for the individual named respondents, the 
original student plaintiffs and their parents, argue that 
this litigation was filed as a class action, that all the 
parties have until now treated it as a class action, and 
that the failure to obtain the class certification 
required under Rule 23 is merely the absence of a 
meaningless (verbal recital) which counsel insists should 
have no effect on the facts of this case. But these 
arguments overlook the fact that the named parties whom 
counsel originally undertook to represent in this 
litigation no longer have any stake in its outcome. As 
to them the case is clearly moot."

See also Jones v. Caddo Parish School Board, et. al.. 704 F.2d 206
(5th Cir. 1983) . To whatever extent it may be contrary to the*  ilPasadena City Board of Education v. Spangler, decision, the Fifth 
Circuit, Unit B decision of Graves v. Walton County Board of 
Education. 686 F.2d 1135 (5th Circuit, Unit B, 1982) does not j 
control and, if necessary, should be overruled.

Defendants/Appellees should not first be made to go through a i 
unitary status hearing before getting a ruling on the mootness 
issue, as Plaintiffs/Appellants contend. Plaintiffs/Appellants
offer no authority for such an argument, which, if correct, would j 
render useless any determination of the mootness issue. The 
parties below had agreed with the District Court in their
December 27, 1991 status conference that mootness was a threshold 
issue and should be ruled on first. Such an agreement is supported 
by case law.

(1) Manning v. Upjohn Company. 862 F.2d 545 (5th Cir. 1989). 
("Judicial restraint" dictates a consideration of issues 
effecting disposing of case be considered first.)

(2) Word v. Dearman. 626 F.2d 489 (5th Cir. 1980). (Voting 
Rights Act case challenging practice of only placing 
candidates certified by party Executive Committee was 
mooted by cessation of practice).

(3) Dudley v. Stewart. 724 F.2d, 1493 (11th Cir. 1984).
(Transfer of inmate moots issue of injunctive relief in 
absence of class certification).

8



(4) Graves v. Walton County Board of Education, (supra at 
1137). ("Article III of the Constitution imposes a 
threshold requirement that those who seek to invoke the 
power of federal courts must allege an actual case or 
controversy. ")

(5) McCray v. Povthress. 638 F.2d 1308 (5th Cir. 1981). (When 
Georgia election officials ceased demand for candidates' 
financial information, case was mooted, and issue did not 
have to be resolved on the merits.)

Further, as set forth in the Affidavit of Defendants/ 
Appellees' Deputy Superintendent, Dr. Robert L. Bushong. [Rl-11 - 
17-20] the local School District has satisfied the requirements for J 
a unitary declaration, including the area of student assignments, , 
as set forth in this Court's decision of Pitts v. Freeman. 887 F.2d | 
1439 (11th Cir. 1989), even before the U.S. Supreme Court's
decision in Freeman v. Pitts. 499 U.S. (1992), 60 U.S.L.W. 4287,
4292-931 (March 31, 1992). Dr. Bushong's Affidavit, unchallenged, 
shows that the local School District makes faculty assignments to 
reflect system-wide racial percentages, provides transportation, 
facilities, and extracurricular activities. [Rl-11 - 17-20, fl4, 
19, 20, and 21)] to students, black and white, on a fair, equal, 
non-discriminatory basis. In the Muscogee County School District, 
through the 1976-77 school year, 6 years after the plan was 
started, only 1 of its 42 elementary schools had a variance of 
student enrollment (22%) of more than 20% from the system-wide 
average [32 of 42 were within 10%]. At the junior high level, all 
9 schools were within 5%, and at the senior high level all 7 were 
within 10% of the system-wide averages [Rl-11 - 10-14, (f7 of Dr.
Bushong's Affidavit)]. Subsequent changes were due to a continuing 
decline in the percentage of white students, demographics, and 
housing patterns. [Rl-11 - 14 and 15, (f8 of Dr. Bushong's 
Affidavit)].

9



V. DEFENDANTS/APPELLEES* ARGUMENT AND CITATIONS OF AUTHORITY
THE DISTRICT COURT WAS CORRECT TO DISMISS THE DESEGREGATION 

CASE AGAINST THE MUSCOGEE COUNTY SCHOOL DISTRICT FOR MOOTNESS. 
ALTHOUGH THE CASE WAS FILED AS A CLASS ACTION AND THE DISTRICT 
COURT, IN ONE ORDER, STATED THE CIRCUMSTANCES INDICATED THE CASE 
WAS APPROPRIATE FOR A CLASS ACTION AS TO STUDENT ASSIGNMENTS, THE 
CASE WAS NEVER CERTIFIED PURSUANT TO THE FEDERAL RULES OF CIVIL 
PROCEDURE, RULE 2 3 AS A CLASS ACTION AND NONE OF THE ORIGINAL 
PLAINTIFFS IN THE CASE, WHEN IT WA'S FIRST FILED, ARE STILL IN THE 
SCHOOL SYSTEM.

Plaintiffs/Appellants have recognized that their case was moot
as to the original Plaintiffs as set out at the bottom of page 2 of |j
their June 17, 1991 Memorandum in support of their Motion to j
Substitute Plaintiffs? [R2-19].

"In the time period between the filing of the original 
Complaint and the present, the original Plaintiffs are no 
longer in the school system and the complaints of 
continuing vestiges of discrimination in the school 
system are moot as to them."

Who wins and who loses this appeal will, in all likelihood, be II
decided by whether this Court adheres to Plaintiffs/Appellants' 
sole authority, Graves v. Walton County board of Education. 686 
F.2d 1135 (5th Cir. Unit B 1982) or the Supreme Court decision on 
point, Pasadena City Board of Education v. Spangler, (supra) and 
other similar case law. Plaintiffs/Appellants are wrong to say at
page 9 of their Brief that "the action of the Court below 'I#effectively nullifies a well established series of cases in both j 
the Supreme Court of the United States and this Circuit that 
require formerly dual school districts to remove vestiges of that 
dual system to the extent practicable" and then again on page 11 to

10



!
| say that the result reached in Graves is not an abnormality.j ■
j Rather, the Court's decision proceeds from a long line of cases in
|;
, the Fifth Circuit that eschew excessive formalism in favor of a
| j
I practical view..." To the contrary, Graves is it for the
i ,, Plaintiffs/Appellants.
I j

Plaintiffs/Appellants do correctly set forth the facts andn
j ; holding of Graves at pages 10 and 11 of their Brief, a school
l j
desegregation case filed in 1968 as a class action, treated by thej l

, District Court as a class action, but a case which was never
i certified as a class action. Unit B of the old Fifth Circuit! '• iI,
; simply held that "it is clear that despite the lack of a formal
i1 Order certifying this case as a class suit, this case was in fact | 

j i  a class action and was specifically described as such by the j
! parties and the trial court". Graves v. Walton County Board of !j!
Ij Education. 680 F.2d at 1139, 1140. Without explanation, Unit B in ;i
[ Graves v. Walton. 680 F.2d at 1138, just found the Pasadena holding 
j not "persuasive". While the School Board feels that Graves should i 
j !  not control this case, Plaintif fs/Appellants are incorrect to state 
j! at Page 10 of the Brief that "the Fifth Circuit addressed the 
ij identical questions at issue here and arrived at the exact opposite 
Ji result." In Graves v. Walton County Board of Education, (supra at 
1139) it is clear that the District Court in an Order recognized 
that the Plaintiffs were suing for "parents and pupils who are

|

I similarly situated... and teachers... similarly affected by the
i * • I| actions of the Defendants in penalizing them... because of attempt j
I to petition the Defendants about the conditions within their
j racially segregated schools..." Also, in another Order thej !j |  District Court adopted an injunction agreed to by both parents and
IIii

!

11



the School Board which, by its terms, pointed out that it was 
"prepared by [the Board] and adopted by the Court [to provide] 
relief not for the individual plaintiffs but for the entire 
plaintiff class of [black] parents and teachers." In the instant 
case, the Trial Court only stated in one Order that "circumstances 
indicated that this is a proper class action insofar as the 
question of assignment of pupils in the public school system of 
Muscogee County is concerned". [R-1D-2]. It made no other 
statements and certainly did not make the recognitions that the 
trial court in Graves did. The instant case made no more mention 
of a "class".

The School Board, respectfully submits that the United States 
Supreme Court's clear direction in the Pasadena City Board of 
Education v. Spangler, (supra) should control and should not be 
ignored or treated as not "persuasive" any longer. Plaintiffs/ 
Appellants' attempt to explain why it feels Pasadena v. Spangler 
should not control, namely, that in Pasadena. no current students 
were involved in that case and that the government was there to 
help the plaintiffs. While the hereinafter set forth quote from 
Spangler, indicates Plaintiffs/Appellants are incorrect, and that 
when the mootness issue was decided, there were present students 
involved, even Graves did not rely on these circumstances. The 
United States Supreme Court in Spangler clearly shows dismissal for 
mootness was the correct decision in the District Court's January 
21 Opinion and Order.

"We must first deal with petitioners' contention that 
there no longer exists any case or controversy sufficient 
to support our jurisdiction, Petitioners assert that all 
the original student plaintiffs have graduated from the 
Pasadena school system, and that since the District Court 
never certified this suit as a class action pursuant to

12



Fed Rule Civ. Proc. 23, the case is moot. Respondents 
advance several theories why it is not moot.

Counsel for the individual named respondents, the 
original student plaintiffs and their parents, argue that 
this litigation was filed as a class action, that all the 
parties have until now treated it as a class action, and 
that the failure to obtain the class certification 
required under Rule 23 is merely the absence of a 
meaningless (verbal recital) which counsel insists should 
have no effect on the facts of this case. But these 
arguments overlook the fact that the named parties whom 
counsel originally undertook to represent in this 
litigation no longer have any stake in its outcome. As 
to them the case is clearly moot. And while counsel may 
wish to represent a class of unnamed individuals still 
attending the Pasadena public schools who do have some 
substantial interest in the outcome of this litigation, 
there has been no certification of any such class which 
is or was represented by a named party to this 
litigation. Except for the intervention of the United 
States, we think this case would clearly be moot. Sosna 
v. Iowa. 419 U.S. 393, 42 L. Ed 2d 532, 95 S. Ct. 553
(1975); Indianapolis School Comm1rs. v. Jacobs. 420 U.S. 
128, 43 L.Ed. 2d 74, 95 S.Ct. 848 (1975)."

Thus, it is not just Spangler alone, as Plaintiffs/Appellants could
argue. Indianapolis School Commissioners v. Jacobs (supra) the
U.S. Supreme Court dismissed as moot a case brought by high school
students who sought to have certain regulations regarding the
publication of a school paper declared unconstitutional. The Court
held as follows at pages 529 and 530:

"In the Complaint, the named Plaintiffs stated that the 
action was brought as a class action pursuant to Fed 
Rules Civ Proc 23(a) and (b)(2), and further stated that 
'[p]laintiff class members are all high school students 
attending schools managed, controlled, and maintained by 
the Board of School Commissioners of the City of 
Indianapolis'... At oral argument, we were informed by 
counsel for petitioners that all of the named plaintiffs 
in the action had graduated from the Indianapolis school 
system? in these circumstances, it seems clear that a 
case or controversy no longer exists between the named 
plaintiffs and the petitioners with respect to the 
validity of the rules at issue. The case is therefore 
moot unless it was duly certified as a class action 
pursuant to Fed Rule Civ Proc 23, a controversy still 
exists between petitioners and the present members of the 
class, and the issue in controversy is such that it is

13



capable of repetition yet evading review. Sosna v. Iowa.
419 US 393, 42 L Ed 2d 532, 95 S.Ct. 553 (1975). Because 
in our view there was inadequate compliance with the 
requirements of Rule 23(c) we have concluded that the 
case has become moot.
The only formal entry made by the District Court below 
purporting to certify this case as a class action is 
contained in that court's "Entry on Motion for Permanent 
Injunction", wherein the court "conclude[d] and ordered" 
that "the remaining named plaintiffs are qualified as 
proper representatives of the class whose interest they 
seek to protect". 349 F.Supp, at 611. No other effort 
was made to identify the class or to certify the class 
action as contemplated by Rule 23(c)(1); nor does the 
quoted language comply with the requirement of Rule 
23(c) (3) that "[t]he judgment'in an action maintained as 
a class action under subdivision... (b) (2).. . shall 
include and describe those whom the court finds to be 
members of the class". The need for definition of the 
class purported to be represented by the named plaintiffs 
is especially important in cases like this one where the 
litigation is likely to become moot as to the initially 
named plaintiffs prior to the exhaustion of appellate 
review. Because the class action was never properly 
certified nor the class properly identified by the 
District Court, the judgment of the Court of Appeals is 
vacated and the case is remanded to that court with 
instructions to order the District Court to vacate its 
judgment and to dismiss the complaint... So ordered."

j See also Baxter v. Palmigiano. 425 U.S. 310, 311 (1976) where the
Court held, relying on Indianapolis School Commissioners v. Jacobs.
(supra) that although two prisoners brought their §1983 suit "on

j their own behalf and pursuant to Rule 23... of the Federal Rules of
I
Civil Procedure, on behalf of all other inmates at San Quentin,

' subject to Defendants' jurisdiction and affected by the policies...
, or acts complained of", even though it was clear that the District
iCourt treated this suit as a class action, since it was neverj
certified as a class action, the case was not a class action and 
was moot. Only because both parties had stipulated to the 
intervention of another inmate did the case proceed. There is no 
such stipulation in the instant case.

14



As the District Court Order shows, there is further authority 
to support a dismissal for mootness, even when all parties and the 
Court have treated a desegregation case in a class action, but 
where it was not certified. In Jones, et. al. v. Caddo Parish 
School Board, et. al.. 704 F.2d 206 (5th Cir. 1983) the same 
factual circumstances arose, as we have in the instant case. The |I
NAACP Legal Defense and Educational Fund was involved in Caddo j 
Parish. as they are here. In 1965, black school children and their 
parents filed a Complaint against* the Caddo Parish claiming the j 
school system operated in a bi-racial fashion. "Plaintiffs sought 
to represent themselves as a class of (African-American) children 
and their parents in the Caddo Parish pursuant to Rule 23(a) (3) of 
the Federal Rules of Civil Procedure then in effect (1938 
version)." Jones, et. al. v. Caddo Parish, supra at 208. [This 
same version was in effect when the instant suit was filed.] The 
matter was never certified. Fifteen years later in 1981, being 
dissatisfied with progress in the matter, the parent of a then- 
present student in Caddo Parish filed a Rule 24(c) Motion to 
Intervene as an individual and on behalf of the class, just as was 
done in the instant case. The District Court dismissed it, and 
that dismissal was affirmed on appeal. In affirming the dismissal 
and recognizing the fact that the original action in 1964 was filed 
prior to the 1966 change in Rule 23 of the Federal Rules of Civil 
Procedure, (just as here), the Fifth Circuit held as follows at 
pages 211-213:

"In its memorandum ruling denying... intervention, the 
court found that 'this action, in its present posture, is 
not in fact a class action'. The court reasoned that the 
action brought by the private plaintiffs, despite 
allegations of a 'class' status, had never been certified 
as a class action,... The District Court correctly

15



viewed this action as one involving only two parties, and 
not as a class action. . . From the outset of this 
litigation, the status of the private plaintiffs as 
representatives of a class was uncertain. Although the 
original complaint contained allegations made on behalf 
of a class pursuant to former Rule 23(a)(3), it was just 
over a year later that Rule 23 was amended to include a 
mandatory requirement of class certification. Rule 
23(c) (1) , effective July 1, 1966, provided that [a]s soon 
as practicable after the commencement of an action 
brought as a class action, the court shall determine by 
order whether it is to be so maintained', and the order 
of the Supreme Court accompanying the 1966 amendments to 
the Federal Rules of Civil Procedure explained that the 
amendments

'shall govern all proceedings in actions 
brought [after July 1, 1966] and also in all 
further proceedings in actions then pending, 
except to the extent that in the opinion of 
the court their application in a particular 
action then pending would not be feasible or 
would work injustice, in which event the 
former procedure applies. 383 U.S. 1031 
(1966) . '

This Court has held amended Rule 23 to apply to actions 
that were filed before the effective date of the 
amendments, Alvarez v. Pan American Life Insurance 
Company, 375 F.2d 992, 993 (5th Cir.), cert, denied, 389 
U.S. 827, 88 S.Ct. 74, 19 L.Ed.2d 82 (1967), and we have 
stated more generally 'that to the maximum extent 
possible, the amended Rule should be given retroactive 
application.' Atlantis Development Corporation v. United 
States, 379 F.2d 818, 823 (5th Cir. 1967). Despite the 
general retroactive applicability of the amendments to 
Rule 23, the record in this case indicates that no class 
certification in accordance with Rule 23(c)(1) was ever 
requested or ordered. Thus, the true nature of the class 
was never judicially ascertained."

Thus, the fact that the parties and the Court might have recognized
i j
i; the action as a class action matters not. Unless the class is11
i certified, it is not a class action.

See also, Tasby v. Estes. 643 F.2d 1103, 1106 (5th Cir., Unit
I;
A, 1981) where black school children filed suit to enforce schooljj
district's obligations under previous desegregation order. School 
district alleged but could not show that all original plaintiffs/

16



students at the time of initial filing had left the system. The 
case was never certified as a class action. "Of course, a school 
desegregation case can become moot if it is not certified as a 
class action, the named plaintiffs have graduated from school, and 
there is no other factor which avoids mootness (Pasadena v. 
Spangler. If the DISD thought that the plaintiffs no longer 
resided within the school district or had graduated from school, 
then the way was open for it to make such a showing." [In Lockett, 
this has been conceded.]

Plaintiffs/Appellants make the separate Argument under Subhead 
"B", at pages 14 through 18 of their Brief, that before the 
District Court could dismiss this case for mootness, the School 
District would first have to go through a court-supervised unitary 
status hearing. There is no authority for the argument. None of 
the landmark desegregation cases cited by Plaintiffs/Appellants in 
the Brief such as Swann v. Charlotte-Mecklenburg Board of 
Education. 402 U.S. 1, 15 (1971), Green v. County School Board. 391 
U.S. 4301 (1968) or decisions of this Court such as Pitts v. 
Freeman, 755 F.2d 1425 (11th Cir. 1985) and Lee v. Macon County 
Board of Education. 584 F.2d 781 (5th Cir. 1978) require a unitary 
hearing before dismissal for mootness. Indeed, the Supreme Court 
in Pasadena v. Spangler (supra) and this Court in the Graves v. 
Walton County Board (supra) did not require this. In Spangler, et. 
al. v. Pasadena City Board of Education, et. al.. 375 F.Supp. 1304, 
1305, (C.D., Calif. 1970), it is clear that the plaintiffs there 
were seeking a "termination of the Court's continuing 
jurisdiction". Thus while there had been no determination of this

17



issue, just as the District Court did here, the U.S. Supreme Court,
in Pasadena v. Spangler, et. al. (supra at 430), stated:

"We must first (emphasis added) deal with petitioners' 
contention that there no longer exists any case or 
controversy sufficient to support our jurisdiction, 
Petitioners assert that all the original student 
plaintiffs have graduated from the Pasadena school 
system, and that since the District Court never certified 
this suit as a class action pursuant to Fed Rule Civ Proc 
23, the case is moot. Respondents advance several 
theories why it is not moot."

i
Contrary to Plaintiffs/Appellants' view, it is clear that»  i

mootness will deprive a court of jurisdiction. Defunis v. Odegard. :
I

416 U.S. 312, 316 (1974) which holds that a federal court is 
without power to decide questions that cannot affect the rights of 
litigants before them. "The inability of the federal judiciary to 
review the moot case derives from the requirement of Article III of 
the Constitution under which the exercise of judicial power depends j 
upon the existence of a case of controversy".

Where the individual claim of a class representative has 
become moot in the absence of class certification, the courts must 
dismiss an alleged class action as moot. Vuncannon v. Breed. 565 
F.2d 1096 (9th Cir. 1977); Inmates v. Sheriff Owens. 561 F.2d 560 
(4th Cir. 1977); Winoquer v. Bell Federal Savings and Loan 
Association. 560 F.2d 271 (7th Cir.) cert, denied 435 U.S. 932 
(1977); Laskey v. Ouilan. 558 F.2d 1133 (2d Cir. 1977); Napier v.
Gertrude. 542 F.2d 827 (10th Cir. 1976) cert, denied 429 U.S. 1049 
(1977) .

In Tucker v. Phvfer. 819 F.2d 1030, 1033-1035 (11th Cir.
1987) , an incarcerated juvenile filed a suit on behalf of himself 
"and a class of people consisting of 'all juveniles who are 
currently... and in the future will be confined in the '

18



Lauderdale... County jail"' seeking monetary damage and injunctive
relief to remedy jail conditions allegedly violating Eighth and
Fourteenth Amendment rights. The Plaintiff did not seek
certification until two years later and after he had been released.
Another current prisoner then sought to intervene and prosecute the
class claims. The District Court dismissed the class claims as i
moot and denied the motion to intervene for that same reason. This |
Court affirmed, holding as follows:

"It is well settled that at the time a plaintiff brings 
suit he must have standing to prosecute his claim; he 
must have a "personal stake" in the outcome of the 
litigation. See, e.g. City of Los Angeles v. Lyons. 461 
U.S. 95, 101, 103 S. Ct. 1660, 1665, 75 L.Ed.2d 675
(198 3) ; United States Parole Comm's. v. Geraqhtv, 445
U.S. 388, 396-97, 100 S.Ct. 1202, 1208-09, 63 L.Ed.2d 479 
(1980). The mootness doctrine requires that the 
plaintiff's controversy remain live throughout the 
litigation, once the controversy ceases to exist, the 
court must dismiss the cause for want of jurisdiction.
In a class action, the claim of the named plaintiff, who 
seeks to represent the class, must be live both at the 
time he bring suit and when the district court determines 
whether to certify the putative class. If the 
plaintiff's claim is not live, the court lacks a 
justiciable controversy and must dismiss the claim as 
moot...
Article III (of the United States Constitution) requires 
that a plaintiff's claim be live not just when he first 
brings suit, but throughout the litigation...
In the case at hand, Tucker's claim for declaratory and 
injunctive relief was moot at the time he requested the 
court to certify a class and to name him as class 
representative. We therefore conclude that the district 
court was required, under Lyons. to dismiss this claim 
for lack of standing...
Having determined that the district court correctly 
dismissed Tucker's claim for equitable relief without 
certifying it for class action treatment, we turn to the 
question whether the district court abused its discretion 
in denying Melvin P.'s motion for leave to intervene as 
a party plaintiff.

19



Melvin P. moved the court for leave to intervene so that 
he could (1) present his claim for money damages for the 
injuries he had received during his confinement in the 
Lauderdale County jail and (2) prosecute Tucker's class­
wide claim for equitable relief. At the time Melvin P. 
filed his motion, Tucker's class-wide claim for equitable 
relief was moot. Consequently, Melvin P. was seeking 
leave of court to prosecute claims that were not then 
present in the case, i.e., his claim for damages and his 
claim for equitable relief... Under these circumstances, 
we cannot conclude that the district court abused its 
discretion when it denied Melvin P. leave to intervene."

There is additional authority on point:
(1) City of Los Angles v. Lyons. 461 U.S. 95, 101, 103 S.Ct. 
1660, 1665, 75 L.Ed 2d 675 (1983). (Dismissal of individual !
and class action claim where there had been no certification j!
for lack of standing).
(2) United States Parole Commission v. Geraqhtv. 445 U.S.
388, 100 S. Ct. 1202, 63 L.Ed 2d 679 (1980). (Released
prisoner's individual and class claims challenging parole 
guidelines were mooted because class certification had not 
been accomplished at the time of his parole.)
(3) Wilson v. Secretary of Health and Human Services. 671 
F.2d 673 (1st Cir. 1982). (If plaintiff's claims are mooted, 
case must be dismissed if there is no class certification).
(4) Willan. et. al. v. Menomonee Falls School Board, et. al..
658 F.Supp. 1416, 1419, (E.D. Wise. 1987). (Minority pupil
brought individual complaint against school district's
practice of paying for transfers and tuition to achieve racial
balance in two school districts. The individual claim was
resolved, and there was no class certification. Class action
claims were dismissed as moot.

"In determining whether dismissal on grounds of 
mootness is appropriate in this case, I have only 
considered the nature of the named plaintiffs'

20



claims. Although this case has been framed as a 
class action, the plaintiffs have not moved for 
certification and indeed the putative class has 
never been certified. "[I]f the claim of the class 
representative becomes moot in advance of 
certification, the case may come to a halt even if 
a properly certified class action would survive the 
mootness of the representative claims." Glidden v. 
Chromallo American Coro. . 808 F.2d 621, 626 (7th

i Cir. 1986)."
i:

The cases cited on page 17 of Plaintiffs/Appellants' Brief as j 
authority of a statement made therein that somehow, "the CourtI
below clearly failed to exercise its authority in a manner

|
j: consistent with the interests of class members" are no help. In

|

Amos v. Board of School Directors of the City of Milwaukee, et. !|i !
al. . 408 F.Supp. 765 (E.D. Wise. 1976) mootness was in no wayI :

ji involved. There the District Court had to decide the sole guestion |
Ij! of whether or not to appoint separate counsel to represent a ! 

subgroup of parents in a case where the Milwaukee School System was
I charged with racial discrimination. In Greenfield v. Villager
II
| Industries, et. al.. 483 F.2d 824 (3rd Cir. 1973) the only holdingi
i was that one newspaper ad did not satisfy the notice requirements 
i of Rule 23 to 445 different shareholders in different cities in a
I I
!' federal securities settlement. In Lockett, no class has been
i!
!' certified and at the trial level, Plaintiff s/Appellants at no time 
! contended notice should have been given before the mootness issue
Ij
|i was decided. Rule 23(c) would have required notice to a class ifi!i j
j one had been certified. Here, one never was.j

Plaintiffs/Appellants1 Brief concludes with another attempt to
j
j have this Court believe that the Muscogee County School Board has
ji done nothing to dismantle its old dual system. "The mere adoption
|l
Ij and implementation of a constitutionally acceptable plan does not

21



relieve a school district of its affirmative duty to eliminate the
efforts of state-imposed segregation." [Page 15 and 16 of the 
Brief], As Dr. Bushong's Affidavit shows, the Local Board has done 
much more than that and more than the Local School District in 
Freeman v. Pitts. 499 U.S. (1992), 60 U.S.L.W. 4287 (March 31,
1992) had done - going to a neighborhood school plan, with no 
annual adjustments in student assignment or attempts to balance 
ratios with mediums such as cross-town busing, things that Muscogee 
County did employ.

hereinabove the District Court Judge was correct in dismissing the 
case for mootness and ask that the decision be affirmed.

VI. CONCLUSION
Defendants/Appellees believe that for the reasons set forth

This the day of May, 1992.
HATCHER, STUBBS, LAND, HOLLIS 
& ROTHSCHILD

Ga. State Bar No. 32440C

J ^ E S  E. HUMES, II
Ga. State Bar No. 377700

BY:__2 L  L A MJOSEPrf L. WALDREP0 ^ / 
Ga. State Bar No. 730900

PH L. WALDREPw w  '  
State Bar No. 730900P. O. BOX 2707 

Columbus, GA 31993-5699 
(404) 324-0201 ATTORNEYS FOR DEFENDANTS/APPELLEES 

BOARD OF EDUCATION OF MUSCOGEE 
COUNTY SCHOOL DISTRICT, GEORGIA, 
ET. AL.

22



!
i

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF GEORGIA 

COLUMBUS DIVISION

JERRY L. LOCKETT, et. al., )
)

Plaintiffs )
)v- - ))BOARD OF EDUCATION OF MUSCOGEE )

COUNTY SCHOOL DISTRICT, GEORGIA, )et. al., )
)Defendants )
)

______________  )

MEMORANDUM OPINION AND ORDER ON PLAINTIFFS' 
MOTION FOR FURTHER RELIEF

In 1963 the Board of Education of Muscogee County School 
District, Georgia, voluntarily adopted a desegregation plan for 
the public schools within the system. No litigation prompted 
this action. The plan adopted was similar to plans which at 
that time were being approved by the United States Court of 
Appeals for the Fifth Circuit. In 1964 suit was filed by the 
Plaintiffs expressing dissatisfaction with the plan which had 
been adopted and asking this Court to enter an order compelling 
total immediate desegregation. After evidentiary hearing thiu 
Court denied the prayers for injunction. On appeal the United 
States Court of Appeals for the Fifth Circuit approved the denial 
of the injunction, but required a rodification in the plan so as 
to make the plan consistent with action taken by the Court of 
Appeals in some other school cases which had recently been

CIVIL ACTION NO. 991

FILED «_ _ ............... .2. feb  5 i m
Deputy Cl*rt, U. S. Ditfrkt Cowl* 
MICDU OtSTltCT O f CIOKMA

r. A



CERTIFICATE OF SERVICE
I do hereby certify that I have served a copy of the foregoing 

Brief of Defendants/Appellees, upon Plaintiffs' counsel, by placing 
a copy of the same in the United States mail with sufficient 
postage affixed thereto to insure delivery thereof to Dennis D. 
Parker, NAACP Legal Defense and Educational Fund, Inc., 99 Hudson j 
Street, 16th Floor, New York, N.Y. 10013, and by Hand Delivery \

I

upon Tina G. Stanford, 537 Broadway, Columbus, Georgia 31902.
This the 2%C) of May, 199'2.

C :\WP\MCSD\NAACP\BRIEF.02