Stell v. Savannah-Chatham County Board of Education Reply Brief for Plaintiffs-Appellants

    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

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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.

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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

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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

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[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.

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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

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