Stell v. Savannah-Chatham County Board of Education Reply Brief for Plaintiffs-Appellants
Public Court Documents
October 5, 1989

Cite this item
-
Brief Collection, LDF Court Filings. Stell v. Savannah-Chatham County Board of Education Reply Brief for Plaintiffs-Appellants, 1989. 3b1a5c29-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4834b4de-2d9d-4c5d-86d3-1dc429157ee0/stell-v-savannah-chatham-county-board-of-education-reply-brief-for-plaintiffs-appellants. Accessed April 27, 2025.
Copied!
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 REPLY BRIEF FOR PLAINTIFFS-APPELLANTS ROBERT E. ROBINSON 1316 Abercorn Street Savannah, Georgia 31412 (912) 236-8322 JULIUS LeVONNE CHAMBERS LOWELL JOHNSTON NORMAN J. CHACHKIN 99 Hudson Street, 16th floor New York, New York 10013 (212) 219-1900 Attorneys for Plaintiffs- Appellants Table of Contents Page Statement of the Issues ....................................... 1 ARGUMENT ........................................................ 1 Conclusion ..................................................... 10 Table of Authorities Diaz v. San Jose Unified School District, 861 F.2d 591 (9th Cir. 1988), aff'g 633 F. Supp. 808 (N.D. Cal. 1985) ..................................................... 5, 6 Diaz v. San Jose Unified School District, 633 F. Supp. 808 (N.D. Cal. 1985), aff'd, 861 F.2d 591 (9th Cir. 1988) 5 Graves v. Walton County Board of Education, 686 F.2d 1135 (11th Cir. 1982) 2-3 Palmore v. Sidoti, 566 U.S. 429 (1984) 7 Resident Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir. 1977), cert, denied, 435 U.S. 908 (1978) 9n Smith v. Town of Clarkton, 682 F.2d 1055 (4th Cir. 1982) ... 8-9 United States v. City of Birmingham, 727 F.2d 560 (6th Cir. 1984), aff'g 538 F. Supp. 819 (E.D. Mich. 1982) 8 United States v. Hinds County School Board, 417 F.2d 852 (5th Cir. 1969), cert, denied, 396 U.S. 1032 (1970) 9 United States v. Yonkers Board of Education, 837 F.2d 1181 (2d Cir. 1987), cert, denied, ___ U.S. ___, 100 L. Ed. 2d 922 (1988) 8 Watson v. City of Memphis, 373 U.S. 526 (1963) ............ 8n l l 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 REPLY BRIEF FOR PLAINTIFFS-APPELLANTS Statement of the Issues1 Appellants are black, minor school children living in The City of Savannah and the County of Chatham, Georgia. Since the 1971-72 school year school children in Savannah and Chatham County have been assigned to schools pursuant to a school desegregation plan implemented in compliance with specific orders of this Court * -•■This Statement of the Issues repeats that contained in the opening brief for plaintiffs-appellants. issued pursuant to the requirements of Swann v. Charlotte- Mecklenburg Board of Education. 402 U.S. 1 (1971) . The June 3, 1988, decision and order appealed from finds that the dual system is still in place and requires than an entirely new desegregation plan be implemented in Savannah and Chatham County. The new plan, a neighborhood school assignment plan, relies solely on magnet programs and the majority-to-minority transfer option to eliminate the former dual system. The issue on this appeal is whether this new plan meets constitutional and statutory requirements. ARGUMENT In general, the issues are clearly framed by the briefs for the parties, and we will not repeat any of the arguments advanced in our principal brief. In light of the school board's submission, however, we do wish to clarify a few points. First, whatever counsel for the school board may have in mind by their denomination of the appellants throughout their brief as "LDF," the Court should be clear that plaintiffs-appellants in this case "are black, minor school children living in The City of Savannah and the County of Chatham, Georgia" (Brief for Appellants, at 2) and their parents — not "LDF." Indeed, on October 31, 1986, plaintiffs filed a motion in the district court (R1 [no document numbers provided by district court clerk]) seeking to add, as additional named parties plaintiff, seven minor black children currently attending the public schools of Savannah and Chatham County, and their parents. See. e . q . , Graves v. Walton 2 County Board of Education, 686 F.2d 1135 (11th Cir. 1982). (The district court never ruled on that motion.)2 Second, throughout its brief the board asserts that because plaintiffs presented a desegregation plan prepared by their expert witness (Dr. Michael Stolee) which included dedicated magnet schools, plaintiffs necessarily agree with the board's assertions that a desegregation plan based upon mandatory assignments cannot be effective in this school district. See. e.q.. Brief of Defendants-Appellees at 25 n.12 ("none of the parties— including [plaintiffs]— was prepared to recommend another mandatory plan"). The board reads too much into the litigation posture below. In 1986 the board proposed a plan relying heavily on voluntary enrollments and magnet schools and including substantial new construction, to be financed by a bond issue, under which the then- existing mandatory assignment plan would have been phased out over a lengthy period of time as magnet schools were opened. There was no indication that magnet students would be isolated from other pupils, who would be enrolled in all-black classes for most or all of the school day. See Brief for Appellants at 31 n.47. The plaintiffs agreed to give this concept an opportunity to prove 2The board's counsel also err in stating that "[p]laintiffs, represented by the NAACP Legal Defense Fund, Inc. ("LDF"), filed suit in 1962 . . ." (Brief, at 2). Plaintiffs in this case have consistently been represented by local counsel in this matter from the time of its inception. Other counsel, including attorneys employed by the NAACP Legal Defense and Educational Fund, Inc., have been associated with local counsel — currently Robert E. Robinson, Esq. — in that representation. 3 itself, and entered into a Consent Decree allowing the plan to be implemented but requiring an evaluation of its effectiveness after three years. Even after that plan failed because the bond issue failed, in the proceedings below plaintiffs were willing to afford the school board the chance to demonstrate that a non-segregative magnet and voluntary transfer plan could be effective; Dr. Stolee presented such a plan on behalf of plaintiffs which, as indicated above, reserves mandatory assignments for "back-up" use if enrollments anticipated through voluntary means do not materialize. What plaintiffs were and are unwilling to accept is a plan to segregate black pupils in schools with separate "magnet program" classes that are themselves limited to a smaller proportion of black pupils than their representation in the school district as a whole, with no commitment to utilize mandatory assignments to achieve desegregation if schools are not effectively integrated through this method. The board confuses plaintiffs' willingness to permit the school system to try voluntary enrollment techniques with an agreement that only such techniques could feasibly be employed in the Savannah-Chatham County system. Plaintiffs do not shrink from mandatory assignment techniques in the Savannah-Chatham County school system. Dr. Stolee's plan explicitly called for mandatory back-up assignments to be prepared and ready for implementation in the event that voluntary techniques proved unsuccessful in practice. If the choice is between the segregative version of a "magnet" plan proposed by the board and approved below, on the 4 one hand, and a mandatory desegregation plan, on the other, we have no hesitation in endorsing the mandatory approach. Third, the board's brief implies that a segregative "magnet program" approach similar to that approved below was accepted by the district court and Court of Appeals in Diaz v. San Jose Unified School District. 861 F.2d 591 (9th Cir. 1988), aff'q 633 F. Supp. 808 (N.D. Cal. 1985). See Brief, at 31 & n.15. A reading of the district court and Court of Appeals' opinions in that case, however, indicates that the issue of in-school segregation was not raised and considered explicitly by either court. We frankly would be surprised if the San Jose plan includes the same in-school segregative features as the one approved below. In that case, the district court appointed an independent Monitor, among whose duties were: Monitoring the racial balance of classrooms to determine whether a significant number of classes are racially imbalanced, and advising the court whether students in "self-contained" GATE [Gifted and Talented Education] programs are racially isolated from other students in the host schools. 633 F. Supp.at 824 (footnotes omitted). The court explained that "if the GATE program remains predominantly white because of the District's past failure to identify gifted minorities, the placement of such a program in a minority school could merely manipulate enrollment figures without contributing legitimate progress toward desegregation" fid., n.20). And the district court directed that 5 [s]hould the Monitor discover that a significant number of classes are either disproportionately minority or majority, he/she will investigate to determine whether that pattern is justified by educationally or demographically valid considerations. In the absence of such justification, the Monitor may treat such a pattern of racially isolated classrooms as an incident of significant noncompliance, and proceed accordingly. Id.. n.19. The San Jose case is further to be contrasted with this one because the district court there rejected a 50% black, 50% white limitation on magnet school enrollments of the sort that was approved for magnet programs in Savannah: Under the District's proposal, district-wide schools would have a 50% majority and 50% minority student enrollment (Tr. 10-22). Dr. Willie pointed out, however, that a rigid 50/50 policy would be inequitable to the extent that it did not reflect ethnic ratios within the district. As the District becomes predominantly minority, the 50/50 ratio would reserve a disproportionate share of seats in the best schools for majority students. The court, therefore, adopts a more flexible definition (+ 5%) that will self-adjust as the racial composition of the district changes. Id. at 814. The district court's order was, of course, affirmed by the Ninth Circuit. Finally, although the board's trial presentation was couched in terms of avoiding "white flight,"3 its brief in this Court makes clear beyond any argument that the principle which underlies the design of its plan, including the 50% limitation on enrollment in 3We discussed the "white flight" justification in our opening brief, at 23-24, 27. 6 magnet programs, the separation of pupils enrolled in magnet programs from the segregated, all-black other classes in their schools, and the refusal to articulate a mandatory back-up provision, is the hostility of white parents to enrolling their children in classes more than 50% black, or in formerly black school facilities. Brief, at 38. Because the plan is founded upon, caters to, and effectuates private racial biases, it is patently unconstitutional and should have been rejected by the district court. The Supreme Court unanimously reaffirmed the principle that state officials violate the equal protection clause of the Fourteenth Amendment when they act in response to expressions of racial animus by private citizens in Palmore v. Sidoti, 466 U.S. 429 (1984)(Burger, C.J.). There, a state court matrimonial judge had withdrawn a mother's custody of her child because the mother, a white woman, had remarried a black man. Although the state court explained its decision on the ground that racial bias in the community would subject the child to pressurs and stresses that would not be present if the child were living with parents of the same racial origin, the Supreme Court reversed: The question, however, is whether the reality of private biases and the possibly 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 prejudices but neither can it tolerate them. Private biases mav be outside the reach of the law. but the law cannot, directlv or indirectlv, give them effect. "Public officials sworn to 7 uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held." 466 U.S. at 433 (emphasis added and citations omitted).4 In United States v. Yonkers Board of Education, 837 F.2d 1181, 1226 (2d Cir. 1987), cert, denied. ___ U.S. ___, 100 L. Ed. 2d 922 (1988), the Court of Appeals for the Second Circuit rejected an argument that elected officials acted legally in taking a position to avoid racial integration at the urging of their constituents: It is sufficient to sustain a racial discrimination claim if it has been found, and there is evidence to support the finding, that racial animus was a significant factor in the position taken by the persons to whose position the official decision-maker is knowingly responsive. . . . [T]he City may properly be held liabile for the segregative effects of a decision to cater to this "will of the people." Accord. e . g . . United States v. City of Birmingham. 727 F.2d 560, 564 (6th Cir. 1984)(affirming trial court's inference of improper racial motivation where, inter alia. the decision-making body "'knowingly pursued policies that appeased those who expressed these bigoted views'"), Quoting id., 538 F. Supp. 819, 826 (E.D. Mich. 1982); Smith v. Town of Clarkton. 682 F.2d 1055, 1063, 1066 4Accord Watson v. City of Memphis. 373 U.S. 526 (1963)(where city officials argued that desegregation of city parks had to proceed slowly to "prevent interracial disturbances, violence, riots, and communty confusion and turmoil" the Court held that "constitutional rights may not be denied simply because of hostility to their assertion or exercise"). 8 (4th Cir. 1982)(finding violation of equal protection clause where municipality withdrew from joint plan to construct low-income housing in response to community opposition "motivated in significant part by racial considerations" in view of fact that defendants "knew that a significant portion of the public opposition was racially inspired, and their public acts were a direct response to that opposition").5 More than twenty years ago, the Court of Appeals for the Fifth Circuit applied that principle in school desegregation cases: 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 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. 1401, 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]. United States v. Hinds County School Board. 417 F.2d 852, 858 (5th Cir. 1969), cert, denied. 396 U.S. 1032 (1970). This Court should do the same, by reversing the ruling below. 5See also Resident Advisory Board v. Rizzo. 564 F.2d 126, 144 (3d Cir. 1977)(inferring improper racial motivation from the city's "sudden shift in . position from passive acceptance [of low-income housing project] to active opposition in the face of protest by demonstrators manifesting racial bias")(footnote omitted), cert, denied, 435 U.S. 908 (1978). 9 Conclusion For the reasons set forth above as well as those contained in our opening brief, the judgment below should be reversed. Respectfully submitted, / ROBERT E. ROBINSON 1316 Abercorn Street Savannah, Georgia 31412 (912) 236-8322 JULIUS LeVONNE CHAMBERS LOWELL JOHNSTON NORMAN J. CHACHKIN 99 Hudson Street, 16th floor New York, New York 10013 (212) 219-1900 Attorneys for Plaintiffs- Appellants 10 Certificate of Service I hereby certify that two copies of the foregoing Reply Brief for Plaintiffs-Appellants were served upon counsel for the other parties to this appeal on this 5th day of June, 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 C. 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 11