Stell v. Savannah-Chatham County Board of Education Petition for Rehearing and Suggestion for Rehearing En Banc
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October 17, 1989

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Brief Collection, LDF Court Filings. Stell v. Savannah-Chatham County Board of Education Petition for Rehearing and Suggestion for Rehearing En Banc, 1989. e64c3b23-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4709dfbe-83f8-4089-8742-3304dd01f29c/stell-v-savannah-chatham-county-board-of-education-petition-for-rehearing-and-suggestion-for-rehearing-en-banc. Accessed April 29, 2025.
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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