Stell v. Savannah-Chatham County Board of Education Petition for Rehearing and Suggestion for Rehearing En Banc

    IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT 

NO. 88-8465

RALPH STELL, by next friend, et al.,
Plaintiffs-Appellants,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor-Appellant, 

vs.
THE BOARD OF PUBLIC EDUCATION FOR THE CITY OF 
SAVANNAH AND THE COUNTY OF CHATHAM,

Defendants-Appellees,
DARNELL BRAWNER, JOHN K. McGINTY, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Southern District of Georgia 

Savannah Division

PETITION FOR REHEARING and 
SUGGESTION FOR REHEARING IN BANC

ROBERT E. ROBINSON
1316 Abercorn Street 
Savannah, Georgia 31412 
(912) 236-8322

JULIUS LeVONNE CHAMBERS
NORMAN J. CHACHKIN

99 Hudson Street, 16th floor 
New York, New York 10013 
(212) 219-1900

Attorneys for Plaintiffs- 
Appellants



CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the 
following listed persons have an interest in the outcome of this 
case:

Hon. B. Avant Edenfield, United States District Judge
Ralph Stell, L.S. Stell, Jr., Arlene Avett Ayers & Oliver 

Conrad Ayers, Mrs. Archie Ayers, Felton A. Butler, Addie J. 
Butler, Joseph C. Butler. & Jerry L. Butler, Susie M. Grant, 
Fredericka Chapman & Brenda Chapman, Merle D. Williams, Jesse M. 
Garrison, Shirley Garrison & Ronald Garrison, Mrs. Leo E. 
Garrison, Mary Elaine Gillis & Marvin Gillis, Johnny Edward Hill, 
Vincent Hill & Brenda Jean Hill, Maggie Hill, Eugene Hudson, 
Hezekiah Hudson, Walter W. Hughes, Jr. & Charles R. Hughes, 
Walter W. Hughes, Sr. , Janice Hunter, Beverly Hunter, Greggory 
Hunter & Judy Hunter, Mrs. S.D. Hunter, Luther Gilbert Newton, 
Jr., Luther Newton, Johnnie Louise Saunders, Annie M. Saunders, 
Levan D. Sawyer, Brenda D. Sawyer & Gwendolyn D. Sawyer, George 
W. Sawyer, Elizabeth Williams, Hosea Williams & Andrea Jerome 
Williams, Hosea L. Williams, Sally Ann Wilson, Sally Wilson

The United States of America
The Savannah-Chatham County Board of Education; D. Leon 

McCormac, Leiston T. Shuman, and Dr. Darnell L. Brawner, Anthony 
Harty, Jr., Stephen L. Traub, Loouis M. Nunn, Lamar L. Wiggins, 
Gene F. Dyar, Bernie Slotin, Shelby Myrick, Jr., B.U. Douglas, 
Julian C. Halligan and Henry L. Jordan

Robert E. Robinson; Julius LeVonne Chambers, Lowell Johnston 
and Norman J. Chachkin, as attorneys for plaintiffs-appellants

Jonathan Marks, Nathaniel Douglas, Franz R. Marshall, Hinton 
R. Pierce and Kenneth C. Etheridge, as attorneys for the United 
States of America

Edward H. Lee, Steven E. Scheer, and Alfred A. Lindseth, as 
attorneys for defendants-appellees

Norman J. Chachkin 
Attorney for Plaintiffs-

Appellants
October 17, 1989

l



STATEMENT OF COUNSEL REGARDING IN BANC RECONSIDERATION

I express a belief, based on a reasoned and studied
professional judgment, that the panel decision is contrary to the
following decisions of the Supreme Court of the United States or
the precedents of this Circuit (or of the former Fifth Circuit,
see Bonner v. City of Prichard. 661 F.2d 1206 (11th Cir. 1981)(in
banc)), and that consideration by the full court is necessary to
secure and maintain uniformity of decisions in this Court:

Brown v. Board of Education. 347 U.S. 483 (1954)
Swann v. Charlotte-Mecklenburo Board of Education.

402 U.S. 1 (1971)
Wright v. Council of Emporia. 407 U.S. 451 (1972)
United States v. Scotland Neck City Board of Educa­

tion. 407 U.S. 484 (1972)
Columbus Board of Education v. Penick. 443 U.S.

449 (1979)
Davton Board of Education v. Brinkman. 443 U.S.

538 (1979)
Palmore v. Sidoti. 466 U.S. 429 (1984)
Georgia State Conference of Branches of NAACP v.

State of Georgia. 775 F.2d 1403 (11th Cir. 1985)
♦United States v. Columbus Municipal Separate School 

District. 558 F.2d 228 (5th Cir. 1977), 
cert, denied. 434 U.S. 1013 (1978)

♦McNeal v. Tate County School District. 508 F.2d 1017 
(5th Cir. 1975)

*Bovd v. Pointe Coupee Parish School Board. 505 F.2d 
632 (5th Cir. 1974)

*Lee v. Marengo Countv Board of Education. 465 F.2d 369,
370 (5th Cir. 1972)

ii



*Johnson v. Jackson Parish School Board. 423 F.2d 1055 
(5th Cir. 1970)

*Lemon v. Bossier Parish School Board. 400 F.2d 1400 (5th 
Cir. 1971)

I further express a belief, based on a reasoned and studied 
professional judgment, that this appeal involves one or more 
questions of exceptional importance:

1. Whether a federal court, in fashioning a remedy in a
school desegregation case, may approve a "desegregation plan" 
which assigns black students to self-contained, all-black classes 
in elementary schools which also house 50%-black, 50%-white 
classes, and which limits contact and interaction between pupils 
in the two types of classes to "assemblies, lunch hours, remedial
reading classes, band, chorus, playground and physical
education."

2. Whether a federal court, in fashioning a remedy in a
school desegregation case, may approve a "desegregation plan" 
which creates "magnet programs" offering specialized educational 
offerings for pupils volunteering to enroll in those programs, 
but which reserves a greater proportion of seats in those 
programs for white pupils than their proportion in the total 
student population and thus establishes a ceiling on admission of 
black pupils which is lower than their proportion of total 
student population.

Norman J. Chachkin
Attorney for Plaintiffs-Appellants

♦Decision of former Fifth Circuit.
iii



TABLE OF CONTENTS
Page

Certificate of Interested Persons ...........................  i
Statement of Counsel Regarding In Banc Reconsideration .....  ii
Table of Authorities ........................................ iv
Statement of the Issues Meriting In Banc Consideration .....  1
Statement of the Case Proceedings ..........................  2
Statement of Facts .......................................... 6
REASONS FOR GRANTING REHEARING OR REHEARING IN BANC ........  9
Conclusion .................................................. 15

Table of Authorities
Adams v. United States, 620 F.2d 1277 (8th Cir.),

cert, denied, 449 U.S. 826 (1980)   10
Brinkman v. Dayton Board of Education, 583 F.2d 243

(6th Cir. 1978), aff'd, 443 U.S. 526 (1979)   10
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) . ii
Boyd v. Pointe Coupee Parish School Board, 505 F.2d

632 (5th Cir. 1974) ................................  ii/ 14
Brown v. Board of Education, 347 U.S. 483 (1954) ..........  ii
Carr v. Montgomery County Board of Education, 429

F. 2d 382 (5th Cir. 1970) .............................  4n
Clemons v. Board of Education of Hillsboro,

228 F.2d 853 (6th Cir.), cert, denied,
350 U.S. 1006 (1956) ..........................  lOn-lln, 14

Columbus Board of Education v. Penick, 443 U.S. 449 (1979) . ii
Cooper v. Aaron, 358 U.S. 1 (1958) ........................  12
Davis v. East Baton Rouge Parish School Board, 514 F.

Supp. 869 (M.D. La. 1981), aff'd, 721 F.2d 1425
(5th Cir. 1983) ....................................... 12n

- iv -



Dayton Board of Education v. Brinkman, 443 U.S. 526
(1979) .............................................  ii, 10

Georgia State Conference of Branches of NAACP v. State
of Georgia, 775 F.2d 1403 (11th Cir. 1985) ..... ii, 8n, 14

Green v. County School Board of New Kent County,
391 U.S. 430 (1968) ..................................  10n

Jackson v. Marvell School District No. 22, 425 F.2d
211 (8th Cir. 1970) ..................................  11

Jacksonville Branch, NAACP v. Duval County School Board,
No. 88-3803 (11th Cir. Sept. 15, 1989) ...............  3n

Johnson v. Jackson Parish School Board, 423 F.2d 1055
(5th Cir. 1970)   iii, 12

Lairsey v. Advance Abrasives Company, 542 F.2d 928
(5th Cir. 1976) ......................................  9n

Lee v. Marengo County Board of Education, 465 F.2d 369
(5th Cir. 1972) .................................  ii, 12-13

Lemon v. Bossier Parish School Board, 400 F.2d 1400 (5th
Cir. 1971)   iii, 14

McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950) .... 10
McNeal v. Tate County School District, 508 F.2d 1017

(5th Cir. 1975) ................................  ii, 12, 14
Monroe v. Board of Commissioners of Jackson, 391 U.S.

450 (1968)   12
Palmore v. Sidoti, 466 U.S. 429 (1984)   ii, 13
Parrott v. Wilson, 707 F.2d 1262 (11th Cir.), cert.

denied, 464 U.S. 936 (1983)   9n
Pitts v. Freeman, No. 88-8755 (11th Cir. Oct. 11, 1989) .... 3n
Stell v. Savannah-Chatham County Board of Education,

333 F.2d 55 (5th Cir.), cert, denied, 379 U.S.
933 (1964)   In

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) ...............................  ii, 2, 4n

United States v. Columbus Municipal Separate School 
District, 558 F.2d 228 (5th Cir. 1977), cert.
denied, 434 U.S. 1013 (1978) ....................  ii, 11-12

v



United States v. Pittman, 808 F.2d 385 (5th Cir. 1987) ....  12n
United States v. Scotland Neck City Board of Education,

407 U.S. 484 (1972) ................................  ii, 12
Watson v. City of Memphis, 373 U.S. 526 (1963) ............  13
Wright v. Council of Emporia, 407 U.S. 451 (1972) .........  ii

Fed. R. Evid. 408 .........................................  14



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

NO. 88-8465

RALPH STELL, by next friend, et al.,
Plaintiffs-Appellants,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor-Appellant,

vs.
THE BOARD OF PUBLIC EDUCATION FOR THE CITY OF 
SAVANNAH AND THE COUNTY OF CHATHAM,Defendants-Appellees,

DARNELL BRAWNER, JOHN K. McGINTY, et al.,
Defendants-Appellees.

Appeal from the United States District Court 
for the Southern District of Georgia 

Savannah Division * 1

PETITION FOR REHEARING and 
SUGGESTION FOR REHEARING IN BANC

Statement of the Issues Meriting In Banc Consideration

This Petition for Rehearing and Suggestion for Rehearing In 
Banc is filed to correct what counsel respectfully believe is the 
erroneous holding of the panel on two issues of law:

1. Whether a federal court, in fashioning a remedy 
in a school desegregation case, may approve a 
"desegregation plan" which assigns black students to 
self-contained, all-black classes in elementary schools 
which also house 50%-black, 50%-white classes, and



which limits contact and interaction between pupils in 
the two types of classes to "assemblies, lunch hours, 
remedial reading classes, band, chorus, playground and 
physical education.

2. Whether a federal court, in fashioning a remedy 
in a school desegregation case, may approve a 
"desegregation plan" which creates "magnet programs" 
offering specialized educational offerings for pupils 
volunteering to enroll in those programs, but which 
reserves a greater proportion of seats in those 
programs for white pupils than their proportion in the 
total student population and thus establishes a ceiling 
on admission of black pupils which is lower than their 
proportion of total student population.

Statement of the Case Proceedings

Prior proceedings in this longstanding case1 are accurately 
described in the panel's opinion and are only briefly summarized 
here.

In 1971, pursuant to the directions of the predecessor Fifth 
Circuit and the decision of the Supreme Court in Swann v. 
Charlotte-Mecklenburg Board of Education. 402 U.S. 1 (1971), the 
district court ordered the Savannah public school system to 1

1See Stell v. Savannah-Chatham County Board of Education. 
333 F.2d 55 (5th Cir.), cert, denied. 379 U.S. 933 (1964).

2



implement a desegregation plan based upon mandatory assignments, 
pairing and clustering. Although that plan remained in effect 
for the next fourteen years, the district was never found to have 
attained "unitary status" and a number of one-race schools 
remained in operation.2 * In 1985, following proceedings concerned 
with the closure of a formerly black high school, the district 
court directed the defendants to "submit a redrawn desegregation 
plan so as to bring to an end, once and for all, to the dual 
system of education that continues in this school system."

Negotiations among the parties resulted in agreement upon a 
plan contemplating extensive reliance upon magnet programs,2 new 
construction, and increased expenditures supported by a proposed 
bond issue. That agreement was nullified when the voters refused 
to support the bond issue.

After further negotiations failed to produce a new 
agreement, the board proposed a plan to be phased in by 1994, 
based upon "neighborhood" attendance zones (which the board

2see, e.g.. Pitts v. Freeman. No. 88-8755 (11th Cir. Oct. 
11, 1989) ; Jacksonville Branch. NAACP v. Duval County School 
Board. No. 88-3803 (11th Cir. Sept. 15, 1989).

Significant for present purposes, this agreed plan 
contained a provision that would have avoided the problem of 
classroom segregation in schools housing magnet programs. That 
plan stated categorically:

Magnet and non-magnet students will participate fully 
in the regular instructional program, which may include 
language arts, mathematics, science, social studies, 
health, physical education, and extra-curricular 
activities.

3



asserted had been modified to achieve as much desegregation as 
possible) , voluntary enrollment in racially balanced ''magnet 
programs," and active encouragement of "majority-to-minority" 
transfers.4 5 Plaintiffs opposed the plan submitted by the board 
because of (a) its exclusive reliance upon voluntary means of 
achieving desegregation,® (b) the substantial classroom 
segregation in schools with magnet programs,® and (c) the fact 
that under the plan, black students would have less than an even 
chance with white students to gain admittance to the specialized 
magnet programs.

Plaintiffs presented an alternative plan incorporating the 
use of voluntary enrollment programs, but placing them in 
"dedicated magnet" schools to avoid classroom segregation? 
equalizing opportunities for black and white pupils to enroll in 
magnet programs by establishing the system-wide racial

4While "majority-to-minority" transfers have long been 
recognized as a desegregation tool, see Swann. 402 U.S. at 26-27; 
Carr v. Montgomery Countv Board of Education. 429 F.2d 382, 386 
(5th Cir. 1970), it is well known that they are utilized 
virtually exclusively by minority students, and not by white 
students. "Magnet" schools or programs are the tool intended to 
promote voluntary enrollment by white pupils in integrated 
classroom situations.

5There is no dispute that, apart from such voluntary magnet 
or majority-to-minority transfers as may take place, the 
geographic zones established by the board's plan would 
substantially diminish the level of desegregation from that which 
existed between 1971 and 1986. See Brief for Appellants at 7-8 
n. 19.

®The board's 1988 plan, approved below, did not include the 
same provision as the 1986 agreed-upon plan for assuring 
classroom integration within schools housing magnet programs, see 
supra note 3.

4



proportions as the programs' enrollment goal; and including an 
explicit "back-up" mandatory assignment feature to be utilized 
without need of further proceedings in the trial court, if the 
voluntary enrollment expectations of the plan were not realized.

The United States also opposed the board's plan, primarily 
because of the problem of in-school segregation. The government 
did not, however, present a plan or witness of its own.

Following an evidentiary hearing the district court approved 
the school board's plan with one modification.7 8 Before the 
appeal was briefed, the school board and the United States agreed 
to a "stipulation" proposing to amend the plan to require 
assignment of magnet and non-magnet pupils to the same "core 
curriculum" classes for minimum time periods each week. They 
requested the district court to modify its Order to reflect such 
a change, but the court declined to do so.® Plaintiffs and the 
United States appealed to this Court.

On September 29, 1989, the panel affirmed the trial court's 
ruling in its entirety and remanded the matter with instructions 
that the district court should incorporate the post-appeal

7The court accepted plaintiffs' argument that enrollment 
controls were necessary to insure that magnet program selection 
by a large number of students of one race from a particular 
attendance area did not jeopardize the desegregated status of the 
"sending school." See Stell v. Board of Public Education. Civ. 
No. 1316 (S.D. Ga., June 3, 1989)[hereafter cited as "Order"], at 
48-49.

8See infra p. 8.

5



stipulation between the school board and the United States into 
its Order.

Statement of Facts

The facts relevant to the issues presented by this petition 
are simple and straightforward. The district court's Order 
approved a plan which relies heavily upon voluntary enrollment of 
white students in specialized "magnet programs," offering 
curricular or other educational opportunities not available 
elsewhere in the school system, that are housed in otherwise 
virtually all-black schools. Two features of the "magnet 
programs" are at issue.

First. although Savannah's student population is 59%-60% 
black, the racial composition of the magnet programs is fixed at 
50% black, 50% white. Thus, were the opportunity to gain 
admission to a "magnet program" governed entirely by chance, 
black students would fill 60% of the seats in the programs and 
white students would fill 4 0% of the seats. Each individual 
applicant, white or black, would have an equal chance, compared 
to students of the opposite race, to gain admission (because 
while a larger number of seats are reserved for black pupils, 
there are a larger number of black potential applicants 
competing for those seats). Under the plan affirmed by the 
panel, however, a white child has a better-than-average chance to 
gain admission to the special educational offering of a magnet

6



program, and a black child has a concomitant less-than-ecrual 
chance to enroll.

Second, the plan is implemented using self-contained 
classrooms in elementary schools, so that magnet program classes 
(integrated) and non-magnet classes (all-black) remain separated 
for their academic instruction.9 Contact and interchange among 
the two groups would be limited, as the panel indicated, to 
"numerous assemblies, lunch hours, remedial reading classes, 
band, chorus, playground and physical education."

Both of these features of the "magnet plan" were justified 
as necessary to entice white students to enroll in the programs. 
See Order at 44 (mixing magnet and non-magnet students would 
"serve to attract many fewer students - particularly many fewer 
white students - to these magnet programs") ; id. at 26 ("Dr. 
Rossell recommended a fifty percent ratio of black to white 
students in the magnet programs because the 1986 survey indicated 
that such a ratio would be most effective in attracting [white] 
students to transfer to the magnet program"); panel opinion at 9 
(distinguishing "white flight" argument from "[p]lans like the

9The evidence at trial indicated that in the 1987-88 school 
year, the two elementary schools at which magnet programs had 
been implemented enrolled the following numbers of pupils:

School
Pupils in Integrated Pupils in Segregated 

Magnet Program Classes Non-Magnet Classes
Hodge
Gadsden

143 W 150 B 
129 W 154 B

371 B 
239 B

(February 11, 1988 Report to Court.)
7



school board's that are designed to attract white students into 
predominantly black schools").

After the appeals to this Court were perfected, the school 
board and the United States entered into a stipulation to modify 
the method of operating the magnet programs in elementary 
schools. Although the district court had approved the board's 
plan based upon representations by the Superintendent that any 
departure from self-contained classrooms "is not educationally 
sound at the elementary level" (Order, at 20),10 in the post­
trial stipulation the school district agreed with the government 
not only that elementary school magnet students would

be grouped together with resident non-magnet students, 
in music, art and physical education classes

but also that (except for Gifted and Talented, Honors and
Montessori magnet program students)

all resident non-magnet students will be grouped 
together with magnet program students in one or more of 
the core curriculum subjects of language arts, 
mathematics, social studies, and/or science

for between 125 and 22 5 minutes per week, depending upon grade

level.11

10See Order at 45 (finding separate magnet and non-magnet 
classes to be an "educational necessity" justifying the 
segregation, and citing Georgia State Conference of Branches of 
NAACP v. State of Georgia. 775 F.2d 1403 (11th Cir. 1985).

11January 9, 1989 Stipulation, 5 5  (2), (3), (4).

8



The government and the school board moved to modify the 
judgment appealed from to reflect this change,12 but the district 
court declined to do so. While affirming the district court's 
original order, the panel also remanded with instructions "to 
implement the stipulation into a court order."

REASONS FOR GRANTING REHEARING OR REHEARING IN BANC

The decision of the panel in this case explicitly affirms a 
ruling authorizing the segregation of classes within public 
schools on the basis of the race of their students; and the 
limitation, on the basis of their race, of black students' 
opportunity to enroll in special classes.13 This is a dangerous 
and degrading precedent that demands revision, either by the 
panel or by the entire Court.

This Court should not delude itself that the Order affirmed 
by the panel approved something less than segregation. Lacking 
the sophisticated reasoning skills of lawyers and judges, minor 
black schoolchildren who would receive their entire academic 
curriculum in all-black classes are unlikely to perceive that 
they are truly welcomed or regarded as highly as the other pupils 
whom they see only at "assemblies, lunch hours, remedial reading

12See Parrott v. Wilson. 707 F.2d 1262, 1266-67 n.8 (11th
Cir.) (citing, with approval, Lairsev v. Advance Abrasives 
Company. 542 F.2d 928 (5th Cir. 1976)), cert, denied. 464 U.S. 
936 (1983).

13See Diaz v. San Jose Unified School District. 633 F. Supp. 
808, 814 (N.D. Cal. 1985), aff'd. 861 F.2d 591 (9th Cir. 1988).

9



classes, band, chorus, playground and physical education." Cf. 
McLaurin v. Oklahoma State Regents. 339 U.S. 637 (1950)(black
student seated at desk outside classroom door); Dayton Board of 
Education v. Brinkman. 443 U.S. 526, 532 n.6 (1979)(intact
busina) : Adams v. United States. 620 F. 2d 1277, 1288-89 (8th

Cir .Wen banc) . cert. denied. 449 U.S. 826 (1980)(same);
Brinkman v. Davton Board of Education. 583 F. 2d 243, 249 n.18
(6th Cir. 1978), aff'd. 443 U.S. 526 (1979)(separate black
classrooms added onto white school).

Although the panel's decision is predicated upon finding "no 
abuse of discretion" in the exercise of the district court's 
equitable powers at the remedial stage of a school desegregation 
case, we submit that the district court's determinations on the 
issues presented by this petition14 represented error as a matter 
of law and may not be sustained under the "abuse of discretion" 
standard.15

14Plaintiffs also argued on their appeal that the trial 
court erred in approving a plan that relied solely upon voluntary 
measures for desegregation, without incorporating a "mandatory 
back-up" plan into its Order. While we adhere to that position, 
we accept the applicability of the "abuse of discretion" standard 
in reviewing the lower court's determination that the plan 
"promised to work," Green v. Countv School Board of New Kent 
County. 391 U.S. 430 (1968), and we do not raise this issue as a 
ground for rehearing or rehearing in banc.

15The ruling below should not have been sustained even under 
an "absue of discretion" standard, which is tightly circumscribed 
in school desegregation cases.

Abuse of discretion in law means that the court's 
action was in error as a matter of law [citation 
omitted].

(continued...)
10



The fact that the panel also remanded, with instructions to 
the district court that will result in the issuance of an order 
requiring a reduction of the classroom segregation in elementary 
schools housing magnet programs,15 16 does not in any way lessen the 
need for rehearing or rehearing in banc in this matter. The 
panel's unqualified affirmance of the district court's Order as 
written establishes a novel precedent in this Circuit that 
contradicts more than thirty-five years of adjudication 
beginning with the Brown decision itself.

Never has the Supreme Court, the Fifth Circuit, or this 
Court previously permitted the deliberate maintenance of 
segregated school systems, schools or classes. "It is settled 
doctrine that segregation of children in classrooms constitutes 
invidious discrimination in violation of the Fourteenth Amendment 
to the Constitution." Jackson v. Marvell School District No. 22. 
425 F.2d 211, 212 (8th Cir. 1970). Accord. e.q.. United States 
v. Columbus Municipal Separate School District. 558 F.2d 228,

15(...continued)
In the present case I think the area permissible under 
the law for the exercise of judicial discretion was an 
extremely narrow one, and that its allowable limits 
were exceeded by the district court in denying 
injunctive relief.

Clemons v. Board of Education of Hillsboro. 228 F.2d 853, 859 
(6th Cir.) (Stewart, J., concurring), cert, denied. 350 U.S. 1006 
(1956) .

16We pretermit any discussion of the question whether "125 
minutes" or "225 minutes" per week of desegregation crosses a 
constitutional threshhold; we think those issues are 
appropriately to be explored in the district court.

11



231-32 (5th Cir. 1977), cert, denied. 434 U.S. 1013 (1978); 
McNeal v. Tate County School District. 508 F.2d 1017, 1019 (5th 
Cir. 1975)("basic rule [is] that classrooms which are segregated 
by race are proscribed regardless of the degree of overall 
school-wide desegregation achieved"); Johnson v. Jackson Parish 
School Board. 423 F.2d 1055 (5th Cir. 1970).17

The federal courts have firmly resisted delaying or diluting 
desegregation because of the perceived sensitivities of white 
pupils or their parents. E.g.. Cooper v. Aaron. 358 U.S. 1 
(1958); Monroe v. Board of Commissioners of Jackson. 391 U.S. 
450 (1968); United States v. Scotland Neck City Board of
Education, 407 U.S. 484 (1972); United States v. Hinds County
School Board. 417 F.2d 852 (5th Cir. 1969), cert, denied. 396 
U.S. 1032 (1970);18 Lee v. Marengo County Board of Education. 465

17The panel opinion states (at p. 7) that appellants' 
challenge to the in-school segregation of magnet and non-magnet 
students was based "principally" on Davis v. East Baton Rouge 
Parish School Board. 514 F. Supp. 869, 872 (M.D. La. 1981), 
aff'd. 721 F. 2d 1425 (5th Cir. 1983), and United States v. 
Pittman. 808 F.2d 385 (5th Cir. 1987). This is conclusively
disproved by an examination of the Brief for Appellants, at pp. 
27-29.

The panel goes on to distinguish Davis. which is precisely 
on point, because the plan there rejected had other defects as 
well. We respectfully suggest that this approach to precedent 
would merge stare decisis with res judicata and must be rejected. 
The rulings upon which appellants rely in text are not 
distinguishable merely because they involved other systems and 
factual settings not completely identical to those presented here.

18"In the same vein is the contention similarly based on 
surveys and opinion testimony of educators that on stated 
percentages (e.g., 20%, 30%, 70%, etc.), integration of Negroes 
(either from influx of Negroes into white schools or whites into

(continued...)
12



F. 2d 369, 370 (5th Cir. 1972). The Supreme Court has in fact
applied the same principle in many other contexts. E.g.. Watson 
v. City of Memphis. 373 U.S. 526 (1963) (public parks). Most
recently, it was reaffirmed in the highly sensitive area of 
custody determinations. Palmore v. Sidoti. 466 U.S. 429
(1984).18 19

Similarly, the federal courts have consistently disapproved 
desegregation plans utilizing assignment devices that result in 
classroom segregation and have permitted formerly dual systems to

18(...continued)
Negro schools) , there will be an exodus of white students up to 
the point of almost 100% Negro schools. This, like community 
response or hostility or scholastic achievement disparities, is 
but a repetition of contentions long since rejected in Cooper v. 
Aaron, 1958, 348 U.S. 1, 78 S. Ct. 11401, 3 L. Ed. 2d 5; Stell v. 
Savannah-Chatham County Bd. of Ed., 5 Cir., 1964, 333 F.2d 55,
61; and United States v. Jefferson County Bd. of Ed., 5th Cir. 
1969, 417 F.2d 834 [June 26, 1969]." 417 F.2d at 858.

19In Palmore. a white mother's custody of her child was 
withdrawn after she remarried a black man on the ground that 
racial bias in the community would subject the child to pressures 
and stresses. The Supreme Court resoundingly rejected this 
reasoning:

The question, however, is whether the reality of 
private biases and the possible injury they might 
inflict are permissible considerations for removal of 
an infant child from the custody of its natural mother.
We have little difficulty concluding that they are not.
The Constitution cannot control such oreiudices but
neither can it tolerate them. Private biases mav be
outside the reach of the law. but the law cannot.
directly or indirectly give them effect. "Public 
officials sworn to uphold the Constitution may not 
avoid a constitutional duty by bowing to the 
hypothetical effects of private racial prejudice they 
assume to be both widely and deeply held."

466 U.S. at 433 (emphasis added and citations omitted).

13



implement pedagogical theories that produce racially disparate 
class groupings only upon the most compelling showing of 
necessity. See, e.g.. Georgia State Conference of Branches of 
NAACP v. State of Georgia, 775 F.2d 1403, 1413-15 (11th Cir.
1985) (special education classes); McNeal v. Tate County School 
District (ability grouping); Bovd v. Pointe Coupee Parish School 
Board. 505 F.2d 632 (5th Cir. 1974) (academic and vocational 
campuses); Lemon v. Bossier Parish School Board. 400 F.2d 1400 
(5th Cir. 19710)(assignment to schools based on test scores); 
Clemons v. Board of Education of Hillsboro. 228 F.2d at 857 ("The 
excuse of crowding to justify segregation has no basis in law 
nor, in this case, in fact").

The district court's ruling failed this standard for two 
reasons, each of which should have resulted in a reversal as a 
matter of law by the panel: First, the only evidence of
educational necessity was the testimony of the defendant 
Superintendent of Schools, which directly contradicted the 
position adopted by the schol board in the 1986 plan that had 
been agreed to by all the parties,, see supra note 3.20 Second, 
by the time the panel issued its ruling, this justification was

20We recognize that the 1986 plan was a negotiated agreement 
between the parties. While the fact that, at that time the 
school board was willing to assign magnet and non-magnet students 
to core curriculum classes together, would not prove some purpose 
or design to segregate in taking the approach to student 
assignment in the 1988 plan submitted to, and approved by, the 
district court, it is highly probative on the question of a 
compelling "educational" justification for the separate classes. 
Cf. Fed. R. Evid. 408 (limiting inadmissibility to "conduct or 
statements made in compromise negotiations") .

14



completely undercut by the board's willingness to violate that 
purported compelling educational necessity, by entering into a 
stipulation with the government to inter-mix magnet and non­
magnet pupils in core curricular subjects.

Thus, assuming arguendo that the district court's ruling had 
been proper on the record before it as of the time of its Order, 
the basis for the court's reasoning was eviscerated by the 
board's execution of the stipulation. The panel therefore 
should, at the very least, have vacated the district court's 
Order —  holding it unnecessary in light of the stipulation to 
decide the legal issue raised by appellants -- and remanded with 
the instructions that it did issue in its September 29 opinion. 
That course, while not preferable, would at least have avoided 
the unfortunate precedent for which the panel opinion now 
stands.

Conclusion

For the reasons set forth above, plaintiffs-appellants 
respectfully pray that the panel, or the entire Court in banc 
(should the panel decline) should grant rehearing in this matter.

ROBERT E. ROBINSON
1316 Abercorn Street 
Savannah, Georgia 31412 
(912) 236-8322

Respectfully submitted,
_; . y  / ̂  „ /. (

JULIUS LeVONNE CHAMBERS 
NORMAN J. CHACHKIN 

99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Attorneys for Plaintiffs-Appellants
15



Certificate of Service

I hereby certify that a copy of the foregoing Petition for 
Rehearing and Suggestion for Rehearing In Banc was served upon 
counsel for the other parties to this appeal on this 17th day of 
October, 1989, by depositing the same in the United States mail, 
first-class postage prepaid, addressed as follows:

Edward Lee, Esq.
Steven Scheer, Esq.
Lee and Clark 
300 Bull Street 
Savannah, Georgia 31412
Irving Gornstein, Esq. 
Appellate Section 
Civil Rights Division 
Department of Justice 
P. 0. Box 66078 
Washington, D.C. 20035-6078

Hinton R. Pierce, Esq. 
Kenneth Etheridge, Esq. 
Office of U.S. Attorney 
Federal Building 
125 Bull Street 
Savannah, Georgia 31412
Alfred Lindseth, Esq. 
Sutherland, Asbill & U.S. 

Brennan
3100 First Atlanta Tower 
Atlanta, Georgia 30383

Norman J. Chachkin