Craven v. Carmical Petition for Writ of Certiorari to the US Court of Appeals for the Ninth Circuit

    MILLS v. POLK COUNTYBD. DF PUBLIC INSTRUCTION 1485
Citeas993 F.2d 1483 (llthC lr. 1993)

significant money -damages, while'the'Union 
luembers received only’ the incidental benefit 
of potentially improved future treatment by 
the Union. Under "the district court’s shifts 
m g  df fees'to the Union, Plaintiffs-would not 
"beTequired to pay  any'greater portion* ofthe 
Attorney Tees eventhough’Plaintiffs received 
‘a substantially greater benefit. 'See Guidry,

•iil'ftMLi \':'zVJrjtls3~
Berman Henry MILLS, Jr., a  minor *by

Althea MILLS, his mother .and jnext ;t
:;friend,et ^Jaintiff-jAppellant,

.1-- rlL̂ ' ‘; i  •: loo.i'-
United StateB .of America,

Plaintiff-Intervenor, r ̂  _

882 F2d at 944; Shimman, 744 F.2d at 1235. 
Such a result would allow Plaintiffs to be 
unjustly enriched at the expense.of the Un­
ion membership; 'therefore, the court’s 
award of attorney fees under the common 
benefit exception cannot stand.

Finally, we believe our interpretation o f 
the common benefit exception is in keeping 
with the general policy of Alyeska  that, in 
the absence of a statute or enforceable con­
tract, attorney fees should be awarded spar­
ingly. 421 U.S. at 264, 95 S.Ct at!625. As 
in Shimman, there was no injunctive .relief 
obtained in this case to effect any changes in 
the Union’s practices or procedures. In­
stead, the benefit that the district court 
found inured to the union members was not 
“by direct operation of the judgment, but 
rather w(as] the result of a realization that 
the union would have to reform itself or risk 
exposure to further liability.” Shimman, 744 
F.2d at 1235 n. 13. We agree with the 
Shimman court that, although “ [sjociety as a 
whole always benefits through general deter­
rence when the law is enforced,” id., allowing 
fee shifting based on such incidental benefits 
resembles the private attorney general ratio­
nale which was rejected by A lyeska

REVERSED and REMANDED.

POLK COUNTY BOARD OF PUBLIC IN- 
- STRUCTION; Shelley Boone, .Superin- 

.tendent o f Public Schools; PJVl.iFussell,
. ^-Chairman, Polk County Board of Public 

Instruction; Ralph Durrance, Austin T. 
Race, Dora C. Phillips, and Fitzhugh 
Reed, jas Members o f the Polk County 
Board of Public Instruction, Polk Coun­
ty Education Association, Defendants- 
Appellees. - ' . . .

-• No. 92-2832.

United States Court o f  Appeals, 
Eleventh Circuit

June 9, 1993.

Plaintiffs challenged plan for modifying 
attendance zones for elementary schools 
adopted by school board pursuant to consent 
order. The United States District Court for 
the Middle District of Florida, No. 63-150- 
CIV-T-23, Steven D. Merryday, J., ruled 
that plan was acceptable, and plaintiffs ap­
pealed. The Court of Appeals, Clark, Senior 
Circuit Judge, held that: (1) plan was not 
consistent with board’s affirmative duty to 
desegregate, and (2) district court erred in 
granting board’s request for one-year delay 
in implementation of transfer provisions of 
consent order.

Reversed and remanded.

fo  | to NUMBER SYSTEM̂ 1. Schools @=13(12)
School board is obligated to eliminate 

one-race schools by taking affirmative action 
in form of remedial altering of attendance 
zones.

2. Schools <3=13(2)
Ninety percent white population in ele­

mentary schools outside city, contrasted with 
average 55% white population in city schools,



i486

rendered outlying schools racially identifi­
able. ~ r .

993 FEDERAL ^REPORTER, :2d SERIES

3. "Schools ©=>13(4) - '
School board’s obligation is to convert to 

school system without “white” school and 
“ Negro” school, but just schools and there­
fore, school board must attempt to eliminate 
“white” schools as well as “black” schools.

4. Schools ©=13(12)
Plan for modifying attendance zones for 

seven elementary schools adopted by school 
Loard following entry of consent .order was 
not consistent with board’s affirmative duty 
to desegregate; board rejected three propos­
als, all of which would have resulted in great­
er desegregation than board’s plan, although 
board’s plan reduced black population at for­
merly all black school under dual system, it 
resulted in three racially identifiable “white” 
schools outside of city and three city schools 
with black populations of 48%, board’s plan 
resulted in underutilization of city schools 
and overcrowding of outlying white schools, 
and board rejected proposal that black chil­
dren in community north of city attend outly­
ing schools, thereby increasing black popula­
tions in those schools, and instead permitted 
these children to attend city schools, thereby 
effectively promoting segregation.

5. Schools ©=>13(12)
School board violates its duty to deseg­

regate if it fails to consider objective of de­
segregation in decisions regarding location 
and construction of new school facilities; in­
deed, in rendering such decisions, school 
board is obligated to seek means to eradicate 
vestiges of dual system.

6. Schools ©=>13(4)
There was no justification for school 

board’s position that its affirmative duty to 
desegregate elementary schools was limited 
to desegregating formerly all black school 
under dual school system and that it did not 
need to include “white” schools outside of 
city in its desegregation plan; approximately 
27 years ago it was judicially determined that 
county’s entire school system was segregated 
and even if these outlying schools were sub­
sequently constructed, board could not carve 
them out and declare that they need not be 
pan  of desegregation plan, particularly when

outlying schools appeared to be located in 
areas of white ;suburban expansion. . ~

7. Schools ©=>13(17) Y

School board could not accommodate 
overcrowding of white elementary school out- 
side of city by use of mobile classrooms or 
otherwise to prevent sending white students 
to city schools that were not white.

8. Schools ©=13(4)

School board may not accommodate 
overcrowding with use of mobile classrooms 
when to do so would" have effect of earmark­
ing schools according to their racial composi­
tion.

9. Schools ©=13(19)

School board bore burden of justifying 
continued existence of any one-race elemen­
tary' schools, black or white.

10. Schools ©=13(4)

Until school board can prove that stu­
dent attendance has reached unitary status 
by showing that current racial imbalances 
are not traceable, in proximate way, to prior 
violation, it is under affirmative duty to de- 
segregate, that is, it is under affirmative 
duty to eliminate racially identifiable schools 
by using desegregation techniques approved 
by United States Supreme Court.

11. Federal Courts ©=724

Court of Appeals would examine wheth­
er district court erred in granting school 
board’s request for one-year delay in imple­
mentation of transfer provisions of consent 
order in school desegregation case, even 
though district court permitted delay for one 
school year only and it was not argued that 
Court of Appeals should enforce transfer 
provisions at this stage in school year; Court 
of Appeals would review issue because, con­
ceivably, school board could seek another 
delay and accordingly, issue was capable of 
repetition, yet evading review.

12. Federal Civil Procedure ©=>2397.5
Distnct court erred in granting school 

district’s request for one-year delay in imple­
mentation of transfer provisions of consent 
order entered in school desegregation case; 
school board did not even attempt to show



MILLS v. -POLK- COUNTY vBD. OF PUBLIC INSTRUCTION
Cite u  993 F-2d 1485 (llth C lr. 1993)

f  jsjgnificant change in .factual -conditions or in 
|3£he law. so -as-to warrant,.modification-.of 
^ con sen t‘order .and district.court-rmade ;no 
' -findings in this regard .and -board’s request 
' jfp r-.modification was-made less nthan-one 

jnonth after . consent -order»was entered .and 
ihus, board must have .anticipated .at-time it 
entered into order that.it would seek to delay 
implementation -of order’s., transfer provi­
sions. - v  ........... - „•... • „• . • '

13. Federal Civil Procedure ©=1951 " .- l* '
j Jf1'‘ D istrict court erred in accepting and, to 

extentit didiso, considering ex parte commu- 
■nications, regarding plight of elementary stu­
dents, to-which it referred in its final order in 
school desegregation case; while plight o f  
children was relevant to case, evidence had 
to be presented to district court either 
through parties or through disinterested ex­
pert and, even if unsolicited, district "court 
should have given parties notice o f  any . ex 
parte communications that it received. ABA 
Code of Jud.Conduct, Canon 3, subd. A(4) 
(1990). " ■

14. Federal Civil Procedure ©=1951
Even if unsolicited, district court must 

give parties notice of any ex parte communi­
cation that it receives.

15. Federal Civil Procedure ©=’ 1969 
Federal judges must take care not only

to avoid impropriety, but also to avoid even 
appearance of impropriety.

Norman J. Chachkin, NAACP Legal De­
fense & Educational Fund, Inc., New York 
City, for plaintiff-appellant.

Clarence A  Boswell, Jr., Bartow, FL, for 
defendants-appellees.

Appeal from the United States District 
Court for the Middle District of Florida.

Before KRAVITCH and BIRCH, Circuit 
Judges, and CLARK, Senior Circuit Judge.

CLARK, Senior Circuit Judge:
This school desegregation case involves the 

school system of Polk County. Florida. The 
first issue on appeal is from that part of the

1. 347 U.S. 483. 74 S.Ct. 686, 98 L.Ed. 873 
(1954).

1487
.district:court order . approving -»thei ̂ School 
Hoard’s student-assignment plan for the Bar­
tow area, [-consisting ,-fof rseven-w&Lementary 
•schools in andraroundaBartow,^Florida. ,.dn 
formulating-'its-splan, the (Board failed:to.eom- 
•ply with .Supreme iGourt'.decisiqns that dic­
tate the methodology that:must.-be followed 
by school boards formerly operating a'-dual 
system. The record indicates that the School 
Board’s plan will resultin three Tacitly-iden­
tifiable “white” ‘schools, in 'asubstantialTacial 
-disparity'between the-schools withm'the d ty  
of Bartow and those immediately outside'the 
dty, and in an underutilization of the d ty  
schools and a corresponding overcrowding of 
the schools outside the dty. *

The second issue on appeal is from -that 
part of the district court order .granting the 
-School Board’s request to delay implementa­
tion of the intra-district transfer policy of-the 
court approved consent order previously en­
tered. Prior to that consent order the 
School Board had regularly permitted trans­
fers in excess of 1000 or more students upon 
mere requests by parents. The consent or­
der in Para. I.E.2. prescribes a strict en­
forcement policy with respect to such trans­
fers.

Finding that the district court erred with 
respect to both of these issues, we reverse.

I. -
This litigation commenced in September 

1963 when Herman Henry Mills, Jr., and 
other black children in Polk County, Florida, 
filed suit against the Polk County School 
Board seeking desegregation of the Polk 
County school system. In January 1965, the 
district court found that Polk County had 
continued to operate a racially segregated 
school system long after the Supreme 
Court’s decision in Brown, v. Board o f Edu­
cation.1 The former Fifth Circuit confirmed 
this finding three years later,2 in an appeal 
taken by the United States, as intervenor, 
from a district court order declining to enjoin 
the School Board from constructing an ele­
mentary school in an all-black neighborhood.3

3. United States v. Board o f  Public Instruction o f
Polk County, Florida, 395 F.2d 66 (5th Cir. 1968).

2. See text accompanying note 32.



1488 993 FEDERAL REPORTER, 2d SERIES

The “former Fifth Circuit held'that the in­
junction should have issued because the 
School Board had failed 'to undertake any 
analysis to determine the impact of the new 
school on desegregation.4 The court, stated: 

The appellee contends that inasmuch as 
the planning for the school was made with­
out reference to race, there was no con­
scious effort on the part of the Board to 
perpetuate the dual system. This does not 
meet the requirements of the court order. 
There is an affirmative duty, overriding all 
other considerations with respect to the 
locating of new schools, except where in­
consistent with “proper operation o f the 
school system as a whole” to seek means to 
eradicate the vestiges of the dual system. 
It is necessary to give consideration to the 
race of the students. It is clear from this 
record that neither the state board nor the 
appellee sought to carry out this affirma­
tive obligation, before proceeding with the 
construction of this already planned 
school.5

Thus, the School Board was instructed 25 
years ago that it must show that its plans for 
the school system were consistent with its 
affirmative duty to desegregate.

Following the appeal just described, the 
district court thereafter had to issue injunc­
tive orders requiring the defendants to reme­
dy their violations on May 9, 1969, August 18, 
1977, August 7, 1978, and April 15, 1988.’ 
Additionally, the former Fifth Circuit in June 
1978 considered an appeal from a September 
1975 district court order approving the exclu­
sion of the first and second grades from the 
School Board’s desegregation plan for one of 
the elementary schools.6 The former Fifth 
Circuit reversed the district court, directing 
that “the desegregation plan affecting Be­
th13116 Elementary School be modified to 
eliminate the racial imbalance existing in the 
first and second grades.” 7 This current ap­
peal is from still another attempt on the part 
of the Polk County School Board to evade its 
affirmative obligations to desegregate its 
school system.

In January 1992, plaintiffs filed a motion 
for further relief. Plaintiffs alleged that,

4. Id. at 70.

5. Id. at 69 (footnote omitted).

m[i]n 1991, approximately 28 years [after the 
litigation commenced], . . .  the Polk County 
school system remains substantially segre­
gated.” Plaintiffs-alleged that the School 
Board had -not only failed to meet its affirma­
tive obligations to- eliminate the vestiges of 
the segregated system, but had also “inten­
tionally maintained and continued to operate 
racially identifiable schools and otherwise 
ha[d] continued to discriminate against mem­
bers of the plaintiff class on the basis of race 
in the operation o f the Polk County public
schools----- ” Among other things, plaintiffs
requested that the district court grant them 
ipjunctive relief .requiring the School Board 
to desegregate the entire Polk County school 
system no later than August 1992.

Before the district court ruled on plaintiffs’ 
motion, the parties entered into extensive 
negotiations in an attempt to resolve their 
differences about how to eliminate the vestig­
es of the prior dual school system in Polk 
County. These negotiations culminated with 
the execution of a comprehensive agreed- 
upon consent order, which was submitted for 
approval to the district court on May 7, 1992, 
along with a joint motion requesting entry of 
the consent order. The district court held a 
hearing on the joint motion on June 5, 1992, 
and entered the consent order, with minor 
revisions, on July 9, 1992.

The consent order addresses, among many 
other things, pupil assignments; specifically, 
it provides for the establishment of magnet 
schools and for the modification of attend­
ance zones to accommodate these magnet 
schools. As to the Bartow area elementary 
schools in particular, the consent order pro­
vides:

c. Attendance zones for elementary 
schools in the Bartow area shall be modi­
fied effective for the 1992-93 school year to 
accommodate the operation of magnet 
schools as provided above, to establish a 
middle school form of grade organization, 
and to facilitate desegregation. The 
School Board shall present a complete 
written description of such attendance 
zones, together with projections of the re­
sulting school enrollments, to the other

6. Mills v. Polk County Board o f  Public Instruc­
tion. 575 F.2d 1146 (5th Cir. 1978).

7. Id. at 1 147.



P ^ e s  (through counsel) no,.later .ihan which was .8% black in 1991-92; ;and Alturas, 
9 i  J une 1,1992. If either-oflhe otherrparties which w as ,15%. .black in 1991-92.,fIJh ese  

objects to the implementation of the .pro- -three .schools.are located.northwest, north- 
posed .attendance zones, ih e  -parties shall teast/^and east of 4he .dty trespectively -Al-

MILLS v. POLK • COUNTY ̂ BD .QF PUBLIC ̂ INSTRUCTION
Cltea»993 F-2d 1485 t ilth C lr /;1993) * *

. eonsult and confer in an effort to resolve 
their differences. Should agreement not 
be reached, the School Board shall riot 
implement any modifications to which ob­
jection has been made without first Obtain­
ing the approval of the Court8 ‘ J,J“ 

The consent order also covers school con­
struction; faculty and staff assignment,': re­
cruitment, and promotion; specialty pro­
grams, such as the gifted program-and'spe­
cial education; student discipline;" conditions 
of school facilities; enforcement of-attend­
ance zones, including address verification and 
residence documentation to ensure that-stu­
dents are attending the school serving the 
attendance area within which they actually 
Teside; and student transfer policies. '

As to the transfer policies, the consent 
order specifically limits the School Board’s 
authority to grant transfers permitting stu­
dents to attend schools other than-those that 
serve the attendance zone within which the 
students reside.9 Plaintiffs allege that such 
transfers have historically been used to im­
pede desegregation.

Upon entry of the consent order, the 
School Board became obligated to formulate 
a plan for modifying the attendance zones for 
the seven elementary schools in the Bartow 
area as described above. These seven 
schools are only a very small segment of the 
large Polk Cbunty school system.10 Of these 
seven schools, four are located within the city 
of Bartow; Bartow, which was 42% black 
during the 1991-92 school year; Stephens, 
which was 49% black in 1991-92; Floral Ave­
nue, which was 22% black in 1991-92; and 
Gibbons Street, the formally all-black school 
under the dual system, which was 61% black 
in 1991-92. Three of the schools are located 
immediately outside Bartow: Highland City, 
which was 9% black in 1991-92; Eagle Lake,

8. Consent order at 18, I I.A.9.C.

9. Consent order at 29-35, H I.E.

10. Polk Countv is the fourth largest county in the 
State of Florida and has a land area of 1,823 
square miles and a population of 405,382 as of 
the 1990 Census. The World Almanac, 1992, p 
111.

.thoughm ost ,o f the . black population .in-ihe 
oBartow area appears to.be located .within the 
.city, there i s  -a black community -known ns 
Gordonville/Gordon Heights located north of 

,the dty.,,-In the .1991-92 school year, .this 
•community had .223 elementary .-schools , stu­
dents; .153-.of these students .attended Ste­
phens, 66 attended Alturas, and.five.attended 
Highland City. Whereas the record before 
us'is devoid o f any evidence as to the specific 
‘distances between the seven schools, -a School 
Board memorandum attached to one of the 
pleadings indicates that Highland City,' one 
of the outlying schools, and Stephens, one of 
the dty schools, are approximately five miles 
apart11 ' ' ' ' : *■

In formulating its plan for the Bartow, area 
elementary schools, the School Board had 
before it three proposals. The first proposal 
was prepared by the staff of the school sys­
tem. The staff noted that its objectives were 
to desegregate Gibbons Street to equalize 
radal balances in Bartow to the extent prac­
ticable, and to equalize transportation for 
desegregation purposes between black and 
white communities. The staff recommended 
that the 223 students in Gordonville/Gordon 
Heights attend Eagle Lake (79 students), 
Alturas (72 students), and Highland City (72 
students). The staff’s proposal results in 
black percentiles of between 34 and 38 in the 
city schools and of between 18 and 22 in the 
outlying schools. (See appendix to this opin­
ion.) At the condusion of its proposal, the 
staff noted that, “ [i]f more students need to 
be taken from Highland City, would recom­
mend Waterwood, where there are 34 stu­
dents (White). . . . ” 12

The second proposal was from the Citizens 
Committee, which recommended “desegre­
gating Gibbons Street and also radally bal­
ancing the remaining six schools as well.” 13

11. Joint Explanatory Report of Disputed Issues,
Exh. A at 2.

12. Id., Exh. C.

13. Id., Exh. A at 2.



1490 993 FEDERAL REPORTER, 2d SERIES

To accomplish this goal, the Committee rec­
ommended moving 150 students from Ste­
phens to Eagle Lake and Alturas and moving 
127 mostly white students from Highland 
City to Stephens. The Committee noted that 
the students involved 'in the latter move 
would he transported no more than -five 
miles. The Committee’s proposal results in 
black percentiles of between 31 and 42 in the 
four city schools and of between 19 and 30 in 
the three outlying schools.14 (See appendix 
to this opinion.)

The third proposal was from the Superin­
tendent, who rejected the Committee’s plan 
to move Highland City students to Stephens 
“because of his belief that Highland City is a 
separate community from Bartow.” 15 The 
Superintendent’s proposal results in black 
percentiles o f between 33 and 42 in the city 
schools and of between 18 and 20 in the 
outlying schools.16 (See appendix to this 
opinion.)

The School Board did not adopt any of 
these three proposals. Noting that the Gor- 
donville/Gordon Heights students had histori­
cally attended school in Bartow, the School 
Board adopted a plan permitting these stu­
dents freedom of choice to attend any of the 
seven schools in the area except Gibbons 
Street, provided that they would be permit­
ted to attend the city schools only as long as 
the percentage of black students in those 
schools did not exceed 48%. The School 
Board assumed that most of these students 
would choose to attend the city schools. The 
School Board’s plan results in black percen­
tiles of 33 at Gibbons Street and of 48 in the 
other three city schools, and of between 8 
and 13 in the outlying schools.17 A chart 
showing the black percentiles and the utiliza­
tion, based on enrollment as a percentage of 
permanent capacity, for the seven schools 
under the various proposed plans follows this 
opinion as an appendix.

Plaintiffs objected to the implementation of 
the plan adopted by the School Board, con­
tending that the Board had failed to meet its 
affirmative obligation to desegregate the ele­
mentary schools in the Bartow area. The

14. id.

15. Id., Exh. A at 3.

16. Id.

parties could not reach an agreement as to 
the-plan. Accordingly, on July 29, 1992, the 
parties filed -with the district court a Joint 
Explanatory Report of Disputed Issues. Af­
ter briefly explaining the history of the plan, 
the parties stated:

Plaintiffs and the United States have 
indicated to the School Board that they do 
not believe the plan meets the require­
ments of the Fourteenth Amendment or 
the Order that the Court has entered. 
They contend that the level of actual de­
segregation which .is likely to result from 
implementation of this plan, as revealed in 
the projections prepared by the school dis­
trict, is unacceptable in light of the alter--  
natives which are clearly available to the 
school district In particular, they note 
that under the proposal adopted by the 
School Board, some elementary schools 
would have substantially higher minority 
student enrollments and be very substan­
tially under capacity (especially Bartow 
Elementary and Floral Avenue elementary 
Schools) while other facilities would be sig­
nificantly overcrowded with low minority’ 
enrollments (especially Highland City Ele­
mentary School—more than 50% over its 
capacity— and Alturas and Eagle Lake 
Elementary Schools). [Footnote omitted.] 

The School Board’s position is that the 
plan the Board has adopted is a reasonable 
measure that is adequately responsive to 
the requirements of the Order without 
causing undue disruption to established 
patterns of school attendance.18 

The parties also set forth a second issue that 
they had been unable to resolve: the School 
Board sought to delay for one year imple­
mentation of the strict attendance zone en­
forcement and transfer policies set out in the 
consent order, and plaintiffs opposed the de­
lay. The parties requested that the district 
court resolve these two issues. They noted 
that they believed the matters could be re­
solved on the papers and exhibits submitted 
but that they were prepared to present testi­
mony at a hearing if the court so desired.

17. Id., Exh. A at 3-4.

18. Joint Explanatory Report of Disputed Issues 
at 3-4.



MILLS v. .POLK- COUNTY iBD. -'OF (PUBLIC INSTRUCTION 11491
Cite u  993 F M  14*5 (11th Clr. 1993)

..Without holding -a hearing, the district 
■court .resolved both'issues in favor of-the 
School -Board. .The district court .began by 
-noting; -r r.-rr . v- -1:‘
'■ -*The Court .also received correspondence 

: ofrom INeal L . -O’Toole ’o f '.Frost :& O’Toole, 
PJL, on  ibehalf -of 'the-Waterwood Home 

- Owner’s .Association of Polk -Gounty, in
■ .-which correspondence -.counsel addressed 

the .plight -of 34 children -residing ’ in the
.... riWaterwood Subdivision o f  ̂ Highlands .City.

■ ;Tbe -'•Court has • received:-numerous -Jtele- 
-r; phone calls and letters from:interested in­

dividuals .and .groups:19 to-.:
"Noting that the beginning :o f  a -new ■school 
■year was close at hand, the district-court 
stated that "both the Court 'and the public 
are entitled to consider'matters-of ■such im­
portance on a more contemplative basis and 
on a more relaxed schedule.”  Then, without 
• any further-discussion o f the two matters at 
issue, the district court (1) held that the plan 
adopted by the School Board would -be in 

..force for the 1992-93 school year, (2)-granted 
the School Board’s request fo r  a delay in-the 
imposition of the consent order’s transfer 
policies, and (3) chastised the parties for 
leaving these matters to the “ last moment 
before the start of the school year.20 Plain­
tiffs appealed.

II. A.
Other than these facts recited above, the 

record before us is devoid of any explanation 
of the School Board’s actions, and the district 
court made no findings in this regard. At

oral .. argument, however,'counsel rfor the 
School Board .did Bhed •.some 'Jight' on the 
Board’s approach to  the rezoningtof the B ar­
tow, area elementary (Schools. Counsel ;ex- 

. plained that -the Board maw their task -as 

.limited -to desegregating .Gibbons Street, 'the 
formerly all-black s c h o o l  under .'the jBual 
school system; .the Board -undertook -to .do 
this by using only.the students within the 
.city.21 Counsel admitted .that Ihe Board s 
plan effected aeiy  .little change to the racial 

-compositions of the three outlying schools. 
.He explained that .these.schools had their 
; own. black populations (albeit very small) and 
that the Board therefore viewed them as 
“ desegregated.” In essence, the Board’s po­
sition is that, because the-outlying schools 
were not built as ’“black” schools under'the 
dual system, as was Gibbons Street, "the 
Board has no obligation to desegregate them. 

'Thus, -the Board apparently did not erven 
consider using students presently attending 
the outlying schools to'effectuate desegrega- 
.tion. Counsel argued that the Board had
corrected its constitutional violation merely 
by desegregating Gibbons Street.

In the Board’s brief on appeal, which does 
not as explicitly articulate the Board’s posi­
tion as did counsel in oral argument, the 
Board purports to place on plaintiffs the 
burden of proving that its plan results in a 
constitutionally unacceptable level of deseg­
regation. In support of its ‘argument that 
plaintiffs cannot meet this burden, the Board 
points out that, under its plan, none of the 
city schools have a black population of great-

19. District Court order of August 18, 1992, at 1.

20. In a memorandum died after the entry of the 
district court’s order, the United States respond­
ed as follows:

The United States is most concerned about 
having the opportunity to clarify the bona fides 
of its course of conduct over the last several 
months. We are particularly concerned to 
reaffirm that as of the June 5 hearing and even 
up through the entry of the July 8 Order ap­
proving the proposed consent decree, both the 
nature and scope of the Bartow dispute was 
wholly unforeseeable.

The defendants' actions in approving the set­
tlement. and in particular the Lakeland admin­
istrative area's rezoning, marked a dramatic 
break from the Board's long history of both 
active and passive resistance to desegregation. 
The agreement fairly accommodated both the 
constitutional rights of members of the Polk

community to be free of racial discrimination 
in the operation of the school system and the 
legitimate concerns of local organs of govern­
ment to exercise maximal autonomy consistent 
with sound principles of non-discrimination. 
The Board affirmed its interest in attaining 
unitary status as soon as possible. The United 
States had no reason to anticipate or believe 
that the Board's very next action that could 
have advanced it towards unitary status would 
instead, in our view, repudiate the sound and 
lawful principles which governed the negotia­
tion and adoption of the consent order. 

Memorandum Concerning Scheduling and Sub­
sequent Case Activities of August 25, 1992, at 2.

21. Counsel failed to point out that the Board's 
plan permits the 223 black students in the Gor- 
donvilWGordon Heights community north of the 
city to attend city schools, rather than assigning 
these students to the three predominantly white 
outlying schools, as the staff had proposed.

1



1492 -993 FEDERAL REPORTER, 2d SERIES

er than 48%. The Board conveniently ig­
nores that the outlying schools have white 
populations averaging approximately t90%, 
that one o f those schools is overcrowded to 
the extent of operating at 158% capacity, and 
that three of the city schools are underuti­
lized. Thus, the Board’s position is that, 
while it may be under an obligation to deseg­
regate Gibbons Street, the historically black 
school, and to attempt to racially balance the 
other city schools, it is under absolutely no 
obligation to even consider using students 
presently attending the outlying schools to 
effectuate desegregation, notwithstanding 
that these outlying schools are 90% white.

[1] The Board has a fundamental misun­
derstanding of its affirmative duty and its 
burden of proof under Brown v. Board o f 
Education and its progeny. Twenty-five 
years ago, the Supreme Court declared that 
school boards are “clearly charged with the 
affirmative duty to take whatever steps 
might be necessary to convert to a unitary 
system in which racial discrimination would 
be eliminated root and branch.” 22 The 
Court mandated that school boards “ convert 
promptly to a system without a “white’ school 
and a ‘Negro’ school, but just schools.” 23 
Three years later, the Supreme Court made 
clear that a school board’s affirmative duty 
included the elimination, to the extent practi­
cable, of racially identifiable schools:

The district judge or school authorities 
should make every effort to achieve the 
greatest possible degree of actual desegre­
gation and will thus necessarily be con-

22. Green v. County School Board o f  New Kent 
County, Virginia, 391 U.S. 430, 437-38, 88 S.Ct. 
1689, 1694, 20 L.Ed.2d 716 (1968).

23. Id. at 441, 88 S.Ct. at 1696.

24. Swann v. Charlotte-Mecklenburg Board o f  Ed­
ucation. 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 
L.Ed.2d 554 (1971).

25. Id. at 28, 91 S.Ct. at 1282.

26. Courts have applied different percentages in 
determining whether a school is racially identifi­
able as white or minority. See Estes v. Metropoli­
tan Branches o f  Dallas NAACP, 444 U.S. 437, 
442, 100 S.Ct. 716, 718, 62 L.Ed.2d 626 (1980) 
(Powell. J„ dissenting from dismissal of writs of 
certiorari) (noting application of 75% figure); 
Tasby v. Wnght, 713 F.2d 90, 91 n. 2 (5th Cir. 
1983) ("Throughout this litigation, we have de­

cerned with "the elimination of one-race 
schools. No per se rule can adequately 
embrace vail the difficulties of reconciling 
the competing interest involved; but in a 
system with a history o f  segregation the 
need for remedial criteria of sufficient 
specificity to assure a school. authority’s 
compliance with its constitutional duty 
warrants a -presumption against schools 
that are substantially disproportionate in 
their racial composition. Where the school 
authority’s proposed plan for conversion 
from a dual to a -unitary system contem­
plates the continued existence of some 
schools that are all or predominately of one 
race, they have the burden of showing that 
such school assignments are genuinely 
nondiscriminatory. The court should scru­
tinize such schools, and the burden upon 
the school authorities will be to satisfy the 
court that their racial composition is not 
the result of present or past discriminatory 
action on their part24 

The Court made clear that a school board 
does not fulfill its affirmative duty merely by 
adopting a racially neutral school assignment 
plan when such a plan results in one-race 
schools. A  school board is obligated to elimi­
nate one-race schools by taking “affirmative 
action in the form of remedial altering of 
attendance zones.” 25

[2-4] Under the Board’s plan in this case, 
the three outlying schools will have, on the 
average, white student populations of approx­
imately 90%. These schools are, then, clear­
ly racially identifiable; that is, they are 
“white” schools.26 * Nevertheless, the Board

fined as a one-race school’ any school that has a 
student body of approximately 90% or more 
students being either anglo or combined minority 
races.'"); Morgan v. Nucci, 831 F.2d 313, 320 
(1st Cir. 1987) (declining to decide whether 80% 
or 90% figure is more appropriate); Riddick v. 
School Board o f  City o f  Norfolk, 784 F.2d 521, 
533 n. 13 (4th Cir.) (noting school board’s use of 
70% figure), cert, denied, 479 U.S. 938, 107 S.Ct. 
420, 93 L.Ed.2d 370 (1986); see also Tasby v. 
Estes, 517 F.2d 92, 104 (5th Cir.) ("The objective 
of reducing the proportionate share of a racial 
group’s composition of the student population of 
a particular school to just below the 90% mark is 
short of the Supreme Court’s standard of conver­
sion from a dual to a unitary system.” ), cert, 
denied. 423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 
271 (1975). A 90% white population, contrasted 
with the average 55% white population in the 
city schools, renders the outlying schools racially 
identifiable.



MILLS V. .POLK COUNIT. JBD.iOF;PUBIHC. INSTRUCTION
Cite u  993 FJd 1485 (llthC lr. 1993)

has -made absolutely rno lattemptilo.-demon­
strate that these “white’ -achools a r e ’lnot the 
result -of - present i or :past discriminatory/ac­
tion on their part”: ? '  Indeed,-the record 
.before us indicates that these “white” ® chools 
may be the result.-of present,discriminatory 
action. . As the Supreme Court said in Green, 
“the availability to .the board of other-more 
promising courses o f  .action may indicate; a 
lack of good faith; and a tth e  least it places a 

■ heavy burden upon the board to ^explain Its 
preference for an apparently less effective 
method.” 28 In this case, the Board rejected 
.three proposals, all o f which would:have r e ­
sulted in greater desegregation than the 
Board’s plan. The Board’s plan results in 
black populations in the three outlying 
schools of between 8 and 13 percent, -while 
the three rejected proposals would.have re ­
sulted in black populations in those schools o f 
between 18 and 30 percent "The Board’s 
plan also results in three city schools that are 
48 percent black, in an area that is only .28 
percent black; by contrast the three r e je c t  
ed proposals would have resulted in city 
schools with black populations of between 33 
and 42 percent Finally, the Board rejected 
the staffs proposal that the 223 black chil­
dren in the Gordonville/Gordon Heights com­
munity north of the city attend the three 
outlying schools, which would have increased 
the black populations in those schools. Rath­
er, the Board decided to permit these 223 
black children to attend the city schools, all 
of which already had substantial black popu­
lations. This decision by the Board, which 
effectively promotes segregation, is directly 
contrary to the Board’s position that children 
residing in the city should attend city schools 
and children residing outside the city should 
attend the outlying schools. These facts il­
lustrate the Board’s discriminatory intent in 
the assignment of elementary school students 
in the Bartow area.

27. In their brief on appeal, the Board ignores 
these ' white” schools, arguing that their plan is 
appropriate because it does not result in any 
"racially identifiable black schools." The School 
Board s obligation is to convert to a school sys­
tem "without a white’ school and a ’Negro’ 
school, but just schools.”  Green. 391 U.S. at 
442, 88 S.Ct at 1696. Quite obviously, the 
School Board must attempt to eliminate "white" 
schools as well as "black" schools.

28. Green. 391 U.S. at 439, 88 S.Ct. at 1695.

The Board attemptstodiverLour attention 
tfrom these facts by-pointing tout that, it/has 
//succeeded in  desegregating Gibbons: Street, 
the historic black school. f;The Boardls/posi­
tion is that its “affirmative, duty1’, is .limited to 

:,the desegregation of Gibbons Street,and that 
(it .has no obligation to desegregate rthe .three 
outlying schools. This position is  apparently 

..grounded upon the Board’s view that state- 
. imposed, segregation was practiced in the .city 
-schools but not in , -the -outlying -schools.28 
The Board purports ito place on-plaintiffs .the 
. burden of proving thatlts obligation extends 
-beyond achieving racial .balance in the city
..schools. '<• -■. ..i . ;;:.-«v.'T.«3eer

The Board’s position is similar to one re­
jected by the Supreme Court twenty years 
■ago. In K eyes v. School D istrict No. 2,30 the 
City of Denver school district attempted to 

.- limit its affirmative duty to desegregate to  
one-geographical area of the school system.

■ The school district argued that although the 
district court had made a finding of state- 
imposed segregation in that one area, the 
plaintiffs had failed to prove-state-imposed 
segregation in the remainder of the school 
system. The Supreme Court rejected the 
school district’s position, holding that 

a finding of intentionally segregative 
school board actions in a meaningful por­
tion of a school system, as in this case, 
creates a presumption that other segregat­
ed schooling within the system is not ad­
ventitious . . . .  In that circumstance, it is 
both fair and reasonable to require that 
the school authorities bear the burden o f 
showing that their actions as to other seg­
regated schools within the system were not 
also motivated by segregative intent31 

The Supreme Court concluded by stating 
that, if the school district had operated a dual 
school system, it “has the affirmative duty to 
desegregate the entire system “root and 
branch.’ ” 32

29. The Board does not specify, and the record 
before us does not indicate, whether the outlying 
schools were constructed before or after the 
Board ceased operating a dual system.

30. 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 
(1973).

31. 413 U.S. at 208-09, 93 S.Ct. at 2697-98 (em­
phasis added).

32. Id. at 213, 93 S.Ct. at 2700 (emphasis added).



1494 !993 FEDERAL ^REPORTER, 2d SERIES r

[5 ,6 ] .Early in -the : history .of this litiga­
tion, the former Fifth Circuit determined 
that, prior to 1965, Polk County’s entire 
school system was segregated:

[Tjhere can be no question but that all 
school children of Polk County were, until 
the 1965-66 school year, attending school 
under a dual system based on race. . . : 33 

Thus, the Board cannot now argue that the 
three outlying schools somehow escaped the 
segregated system. Even if these outlying 
schools were constructed after 1965, the 
School Board may not carve them out and 
declare that they need not be a part of the 
desegregation plan. It is well established 
that a school board violates its duty to deseg­
regate if it fails to consider the objective of 
desegregation in decisions regarding the lo­
cation and construction of new school facili­
ties.34 Indeed, in rendering such decisions, a 
school board is obligated to “seek means to 
eradicate the vestiges of the dual system.” 53 
Federal courts have traditionally been suspi­
cious of school boards that “build[] new 
schools in the areas of white suburban expan­
sion farthest from Negro population cen­
ters” 34 because such building schemes tend 
to perpetuate, rather than eradicate, the dual 
system.35 36 37 The three outlying schools in this 
case appear to be located in areas of white 
suburban expansion. We hold that there is 
absolutely no justification for the Board’s 
position that its affirmative duty is limited to 
the desegregation of Gibbons Street and that 
it need not include the outlying schools in its 
desegregation plan.

[7 ,8] In short, the School Board’s plan is 
indefensible. The plan results in greater 
segregation than would have any of the three 
proposals that the Board rejected. The

33. United States v. Board o f  Public Instruction o f  
Polk County, Florida, 395 F.2d at 68.

34. Hams v. Crenshaw County Board o f  Edu­
cation, 968 F.2d 1090, 1095 (11th Cir.1992).

35. United Stares v. Board o f  Public Instruction o f  
Polk County, 395 F.2d at 69.

36. Swann. 402 U.S. at 21, 91 S.Ct. at 1278.

37. See id at 21, 91 S.Ct. at 1279 ("In devising 
remedies where legally imposed segregation has
been established, it is the responsibility of local
authorities and district courts to see to it that
future school construction and abandonment are

-Board’splanrresults in three racially identifi­
able “white” schools and in three city schools 
with black .populations of 48 percent In­
deed, other than.reducing the black popula- 
tion at Gibbons Street the Board’s plan does 
not -at all improve the racial compositions of 
the seven schools in the Bartow area. Com­
pounding the racial disparity, the Board’s 
plan results in an underutilization of the city 
schools and overcrowding of the three outly­
ing “white” schools, particularly Highland 
City. This court recently held, “The Board’s 
failure to consider the objective of desegre­
gation in its efforts to alleviate overcrowding 
violates its affirmative duty to desegre­
gate.” 38 A school board may not accommo­
date overcrowding, for example, with the use 
of mobile classrooms, when to do so would 
have the “effect o f earmarking schools ac­
cording to their racial composition___ ” 39
Thus, the School Board in this case clearly 
may not accommodate the overcrowding of 
Highland City, by the use of mobile class­
rooms or otherwise, to prevent sending white 
students to city schools that are not 
“white.” 40

The School Board also may not defend its 
plan merely by relying on the concept of 
“ neighborhood school zoning” or by assert­
ing, without justification or substantiation, 
that students should not cross the city limits 
to attend school. In Little Rock School D is­
trict, the Eighth Circuit reversed the district 
court’s approval of a plan that divided the 
school district into three sectors, with one 
sector having a black enrollment of 50-55% 
and another having a black enrollment of 
only 11-18%. The court said:

As a general rule, the geographic sepa­
ration of black and white residential areas

not used and do not serve to perpetuate or re­
established the dual system.” ).

38. Jacksonville Branch, NAACP v. Duval County 
School Board, 883 F.2d 945, 952-53 (11th Cir 
1989).

39. Keyes. 413 U.S. at 202, 93 S.Ct. at 2694

40. In formulating its proposed plan, the staff 
considered moving 34 white students residing in 
the Waterwood community from Highland City 
to another school, presumably one of the city 
schools. The School Board's rejection of the 
alternative is further evidence of its discriminato­
ry intent.



MILLS v. POLK COUNTY iBD. OF PUBLIC INSTRUCTION ;1495
Cite u  993 F JA  1485 (11th Clr. 1993)

; . - considerations ̂ preclude either the pairing 
, . .and jclustering , of >«chools or the ^nse .of

.v,-jwithin tthe same .school .district .does *not 
. release a constitutional .violator .from ; the 
duty to desegregate the district’s schools 

.as a unit41
‘Neighborhood and geographic lines of sepa- 
‘ration-are factors that “the'School Board can 
and 'should consider in making student a t  
tendance decisions, but it ■cannot rely on 
these factors to  justify the maintenance of 
racially identifiable schools. ■ ?'

’-^[9] The School "Board’s plan is unaccepta­
ble, “first because it was formulated and 
adopted while the Board operated under a 

"fundamental misunderstanding of'its duty to 
desegregate and, second, because it results in 
one-race schools. Thus, on remand, the dis­
trict court must instruct the School Board to 
formulate a new student assignment plan 
that is consistent with the Board’s affirma­
tive duty to desegregate. The decision o f the 
former Fifth Circuit in Tasby v. E stes42 is 
instructive here. In that case, the former 
Fifth Circuit reversed the district court’s de- 
.dsion approving a plan that resulted in a 
number of one-race schools and remanded 
the case “for the formulation of a new stu­
dent assignment plan and for findings to 
justify the maintenance of any one-race 
schools that may be a part of that plan.” 43 
The court stated:

We cannot properly review any student 
assignment plan that leaves many schools 
in a system one race without specific find­
ings by the district court as to the feasibili­
ty of [the techniques of desegregation ap­
proved by the Supreme Court in Swann ]. 
There are no adequate time-and-distance 
studies in the record in this case. Conse­
quently, we have no means of determining 
whether the natural boundaries and traffic

41. 839 F.2d at 1305. See also Davis v. Board o f  
School Commissioners o f  Mobile County, 402 
U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 
(1971) ("neighborhood school zoning" is not per 
se adequate to meet the remedial responsibilities 
of local boards: district court may and should 
consider all available techniques including re­
structuring attendance zones and both contigu­
ous and noncontiguous attendance zones).

42. 572 F.2d 1010 (5th Cir.1978), cert, granted, 
440 U.S. 906, 99 S.Ct. 1212, 59 L.Ed.2d 454 
(1979), cert, dismissed, 444 U.S. 437, 100 S.Ct. 
716, 62 L.Ed.2d 626 (1980).

.transportation to:.eliminate.the large num­
ber of one-race -schools .still .existing.44 ■ 

^The .record -before us -indicates .that the 
School .Board .in this-case should succeed in 
eliminating-all one-race elementary schools in 
the Bartow ̂ area; that is, the School Board 
should develop a  plan that results in-a racial 
balance among the seven elementary schools 
in the Bartow area such that none of the four 
city schools are racially identifiable “black” 
schools and none of the three outlying 
schools are racially identifiable “white” 
schools. The School Board bears the burden 
of justifying the continued existence of any 
one-race schools, black or white, in the Bar­
tow area.4* — '  ■

[10] In  their brief on appeal, the Board 
relies heavily Tin Freem an v. Pitts. This 
■reliance is misplaced for two "reasons. First, 
the issue in Freem an-was whether the dis­
trict court could relinquish its supervision 
and control over those aspects o f the school 
system that had achieved unitary status if 
other aspects o f the system had not achieved 
unitary status. In this case, 'the School 
Board has not even alleged, much less at­
tempted to show, that any aspect of the Polk 
County school system has achieved unitary 
status. Second, the Board’s implication that 
it need not take affirmative steps to desegre­
gate unless plaintiffs show that the system is 
not unitary is contrary to the law:

If the unlawful de ju re  policy of a school 
system has been the cause of the racial 
imbalance in student attendance, that con­
dition must be remedied. The school dis­
trict bears the burden of showing that any 
current imbalance is not traceable, in a 
proximate way, to the prior violation.46

44. Id. at 1014.

45. See text accompanying note 24 See also Lit­
tle Rock School District v. Pulaski County Special 
School District No. 1, 839 F.2d 1296, 1306 n. 13 
(8th Cir.) (“The District Court erred in implicitly 
placing the burden on the [intervenors] to dis­
prove the effectiveness of the [school board's] 
plan."), cert, denied, 488 U.S. 869, 109 S.Ct. 177, 
102 L.Ed.2d 146 (1988).

46. Freeman v. Pitts,-----U .S .------- , ------ , 112 S.Ct.
1430, 1447, 118 L.Ed.2d 108 (1992). See also 
Tasby v. Wright, 713 F.2d at 94 ("We should not 
have to explain at this late date who has the43. Id. at 1018.



1496 993 FEDERAL REPORTER, 2d SERIES

Until the Board can prove 'that Btudent at­
tendance has reached unitary -status -by 
showing that the current racial imhalOTnoo 
“are not traceable, in a proximate way, to the 
prior violation,”  it is under an affirmative 
duty to desegregate under the principles an­
nounced in Brown v. Board o f Education and 
its progeny; that is, it is under an affirmative 
duty to eliminate racially identifiable schools 
by using "the desegregation techniques ap­
proved in Swann.

B.

[11,12] Plaintiffs also argue that the dis­
trict court erred in granting the Board’s 
request for a one-year delay in the imple­
mentation of the transfer provisions of the 
consent order.47 * * We agree. The district 
court s grant of the School Board's request to 
delay implementation of these provisions 
amounted to a modification of the consent 
order. Recently, in R vfo v. Inm ates o f the 
Suffolk County Jail,** the Supreme Court set 
out the standard to be applied in institutional 
reform litigation when one of the parties to a 
consent decree seeks modification of that 
decree. The Court held:

[A] party seeking modification of a consent 
decree bears the burden of establishing 
that a significant change in circumstances 
warrants revision of the decree.

A  party seeking modification of a con­
sent decree may meet its initial burden by 
showing either a significant change in fac­
tual conditions or in law.

Modification of a consent decree may be 
warranted when changed factual conditions 
make compliance with the decree substan­
tially more onerous-----  Modification is
also appropriate when a decree proves to 
be unworkable because of unforeseen ob­
stacles, [citations omitted], or when en­
forcement of the decree without modifica-

burden of proving that a current condition of 
racial segregation is not a vestige of the past ").

47. The district court permitted the delay for the 
1992-93 school year only. Although plaintiffs do 
not argue that we should enforce the transfer 
provisions at this stage in the 1992-93 school
year, we review this issue because, conceivably,
the School Board could seek another delay. Ac­

tion would be detrimental to the public 
interest, [citation omitted], •• -

Ordinarily, however, modification should 
not be granted where a  party relies upon 
events that actually were anticipated at the 
time it entered into a decree.4'

Here, the School Board did not even attempt 
to show “a significant change in factual con­
ditions or in the law,” and the district court 
made no findings in this regard. Moreover, 
the School Board’s request for modification 
of the transfer provisions was made less than 
one month after the district court entered 
the consent order; thus, the School Board 
must have “anticipated at the time it entered 
into” the consent order that it would seek to 
delay the implementation of the transfer pro­
visions of this order.' Accordingly, the dis- 

'  t o 171 court erred in granting the School 
Board’s requested modification. On remand, 
the district court shall order that the Board 
implement the intra-district transfer policies 
o f the consent order, set out at Para. I.E.2 of 
that order, in the 1993-94 school year.

C.

[13-15] Finally, plaintiffs complain about 
the district court’s apparent reliance on ex 
parte communications; specifically, in its fi­
nal order, the district court acknowledged 
having been informed of the “plight” of stu­
dents living in the Waterwood community 
and having received “numerous telephone 
calls and letters from interested individuals 
and groups.” There is no indication in the 
record that the district court attempted to 
inform counsel for any of the parties of these 
communications. This is consistent with 
plaintiffs’ counsel’s representation at oral ar­
gument that he was unaware of the commu­
nications until after the district court had 
entered its final order. The district court 
clearly erred in accepting and, to the extent

cordingly, the issue is "capable of repetition, yet 
evading review." Southern Pacific Terminal Co. 
v. I.C.C., 219 U.S. 498, 515, 31 S.Ct. 279 283 55 
L.Ed. 310 (1911).

48(1992) U S ------ ’ *12 S Ct' 748' 116 L E d '2d 867

49. —  U.S. at ------ , 112 S.Ct. at 760.



it did so, considering the communications .to While the “plight” of the children in the

MILLS v. POLK COUNTY BD. OF PUBLIC INSTRUCTION 1497
Cite •» 993 FJ2d 14«5 (11th Cir. 1993)

which it referred in-its final -order.-. The 
Code of Judicial Conduct .provides: ...

iA judge should accord to every person who 
is legally interested in a proceeding, or the 
person’s lawyer, full right to be heard -ac­
cording to law, and, except as authorized 
by law, neither initiate nor consider ex 
parte or other communications on,the m er­
its or procedures effecting .the merits of a 
pending or impending .proceeding. A  
judge, however, may obtain the advice o f a 
disinterested expert on the law applicable 
to a proceedings before the judge if the 
judge, gives notice to the parties of the 
person consulted and the substance of the 
advice, and affords the parties reasonable 
opportunity to respond!60

school system iis .certainly rrelevant'in any 
school desegregation .case; the evidence must 
be presented to -the district -court either 
through the parties or .through a disinterest­
ed expert, as provided inihe judicial conduct 
canon quoted “above."1 Moreover, even if unso­
licited, the district‘Court “must give the par­
ties notice of any >ex parte communication 
that it receives. Federal judges must take 
care not only to avoid impropriety, but also 
to avoid even the appearance of impropriety.

III.

For reasons .stated above, 4he district 
court’s order is REVERSED and-the case is
REMANDED for .’further proceedings con­
sistent with this opinion. -■•••“ Vn;.

. APPENDIX ' ' •" • ■»hiuv'.::’..v h
COMPARISON OF 1991-92 ENROLLMENTS AND UTILIZATION, AND ' z ! ~ "  

PROJECTED 1992-93 ENROLLMENTS AND UTILIZATION UNDER 
ALTERNATIVE ZONING PLANS, BARTOW.-AREA ELEMENTARY SCHOOLS

School
Permanent
Capacity

1991-92
Staff

Proposal
Citizens -• 

Committee
Superin­
tendent

School ' 
■Board

%U* % B** %U % B %U %B %U %B % U ' % B
Bartow 480 83% 42% 84% 38% 45% 42% 63% 40% 72% 48%
Stephens 675 93% 49% 66% 34% 73% 31% 66% 39% 77% 48%
Floral Av. 550 108% 22% 77% 38% 79% 41% 71% 42% 78% 48%
Gibbons
Street

400 94% .61% 99% 35% 100%. 33% 100% 33% 100% 33%

Eagle Lake 575 99% 8% 106% 20% 117% 22% 111% 20% 103% 13%
Highland
City

400 140% 9% 127% 22% 123% 19% 156% 18% 158% 11%

Alturas 350 120% 15% 116% 18% 133% 30% 142% 19% 107% 8%
TOTAL 3430 103% 28% 93% 28% 93% 28% 93% 28% 93% 28%
*% U = Utilization (enrollment or projected enrollment as a percentage of permanent capaci­

ty) Note: In 1991-92, schools served grades K-6; under all plans, schools 
serve grades K-5.

**% B = Black enrollment

m  | <iy number systiwy

50. Code of Judicial Conduct, Canon 3 A(4)
(1990) (currently 3B(7)). See also Politte v. Unit­
ed States. 852 F'.2d 924, 929 n. 8 (7th Cir. 1988)
("the ex pane contact permitted by [the district
court judge], while made with good intentions,
created a situation which unnecessarily called

into question the impartiality of the federal 
courts” ); Rinehan v. Brewer. 561 F.2d 126, 132 
(8th Cir. 1977) (district court judge’s undisclosed 
consultation with physician who had examined 
the defendant denied the defendant due process).