LDF Press Conference for Amadou Diallo Police Shooting, 1999 - 16 of 42

    No. 94-9355

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

JERRY LOCKETT, et al.,

Plaintiffs-Appellants,
V.

BOARD OF EDUCATION OF MUSCOGEE COUNTY, GEORGIA, et
al.,

Defendants-Appellees.

On Appeal from the 
United States District Court 

for the Middle District of Georgia 
Columbus Division

SUGGESTION OF REHEARING EN BANC

E l a in e  R. J o n e s  
Director-Counsel

D e n n is  D . P a r k e r  
NAACP Le g a l  D e f e n s e  a n d  

E d u c a t io n a l  F u n d , In c .
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

J o s e p h  W il e y , J r .
804 Second Avenue 
Post Office Box 2036 
Columbus, GA 31902-2036 
(706) 327-2962

Attorneys for Plaintiffs-Appellants



CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record for Plaintiffs-Appellants, in compliance with Fed. 

R. App. P. 26.1 and 11th Cir. R. 26.1-1, certifies that the following listed persons and 

parties have an interest in the outcome of this case. These representations are made so 

that the Judges of this Court may evaluate possible disqualification or recusal pursuant to 

the local rules of court:

1. Board of Education of the Muscogee County School District, Georgia: its 

Director of Personnel, Supervisor of Instruction, Members and Superintendent;

2. The class of all African-American children eligible to attend public schools 

in Muscogee County and their next friends, Plaintiffs-Appellants;

3. Gladis R. Crawford, Plaintiff-Appellant;

4. Kimberly Nikia Crawford, Plaintiff-Appellant;

5. Honorable J. Robert Elliott, United States District Judge;

6. William B. Hardegree, as attorney for the Board of Education of the 

Muscogee County School District, Georgia, et al;

7. James E. Humes, II,as attorney for the Board of Education of the Muscogee 

County School District, Georgia, et air,

8. Elaine R. Jones, as attorney for Jerry Lockett, et air,

9. Amanda Lockett, Plaintiff-Appellant;

10. Gwendolyn Lockett, Plaintiff-Appellant;

11. Jim H. Lockett, Jr., Plaintiff-Appellant;

12. Dennis D. Parker, as attorney for Jerry Lockett et air,

13. Tina Stanford, as attorney for Jerry Lockett, et air,



14. James Walker, Plaintiff-Appellant

15. Joseph Wiley, Jr., as attorney for Jerry Lockett, et al.

Dennis D. Parker 
Attorney of Record for Appellants



CERTIFICATE OF COUNSEL

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 and that consideration by the full Court is necessary to secure and maintain 

uniformity of decisions in this Court:

Freeman v. Pitts, 503 U.S. 467 (1992)

Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991)

Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976)

I also express a belief, based on a reasoned and studied professional judgment, that 

this appeal involves one or more questions of exceptional importance:

Whether a school district which had formerly operated as a de jure 

segregated system and which remained subject to a federal court injunctive 

order to desegregate may be relieved retroactively of its obligation to take 

affirmative steps to rid itself of the vestiges of the prior dual system;

Whether a formerly dual school system can establish that current 

racial identifiability of its schools has resulted from demographic changes 

unrelated to the former dual system if it does not introduce evidence 

concerning school board decisions affecting student assignments and 

enrollments, school capacities, etc. as well as evidence of the impact such 

decisions had upon the racial composition of school facilities; and

Whether a formerly dual system can be found to have complied in 

good faith with its obligations under a federal court desegregation order

i



when the school district unilaterally ceases to implement an unvacated 

injunctive decree, fails to maintain records documenting the impact on school 

enrollments of pupil assignment changes that it subsequently makes, and 

refuses to undo such changes even after it becomes evident that they have 

reduced the level of desegregation and increased the number of racially 

identifiable schools in its system.

Dennis D. Parker 
Attorney of Record for Appellants

11



TABLE OF CONTENTS

Page

Certificate of Interested Persons 

Certificate of Counsel

Table of Authorities ..........................................................................................................  [

Statement of Issues Meriting En Banc Consideration ........................................................1

Statement of Proceedings and Disposition ............................................................................... 1

Statement of Facts ...................................................................................................................... 3

ARGUMENT IN SUPPORT OF REHEARING EN B A N C ............................................6

The Panel’s Per Curiam Opinion Conflicts with
Controlling Supreme Court Precedent ............................................................................8

Conclusion................................................................................................................................... 15

Table of Authorities

Cases

Board of Education of Oklahoma City v. Dowell,
498 U.S. 237 (1991) ...................................................................................................  j

Brown v. Board of Education,
978 F.2d 585 (10th Cir. 1993), cert, denied, 349
U.S. 294 (1993) ........................................................................................................  10

Celotex Corp. v. Edwards,
514 U .S .___, 115 S. Ct. 1493, 131 L. Ed. 2d
403 (1995) ............................................................................................................. 9, 11

Columbus Board of Education v. Penick,
433 U.S. 449 (1979), quoting Green v. County
School Board, 391 U.S. 430 (1968)   9

Davis v. Board of School Commissioners,
402 U.S. 33 (1971) ...................................................................................................... 9

i



Table of Authorities (continued)

Page

Cases (continued)

Dayton Board of Education v. Brinkman,
433 U.S. 406 (1979) ...................................................................................................  6

Freeman v. Pitts,
503 U.S. 467 (1992) .......................................................................................  9, 10, 13

Green v. County School Board,
391 U.S. 430 (1968)........................................................................................................9

Lockett v. Board of Education of Muscogee County,
No. 94-9355 (11th Cir. May 5, 1997), 1997 WL 189073 ........................... 7, 11, 14

Lockett v. Board of Education of Muscogee County,
92 F.3d 1092 (11th Cir. 1996) ......................................................................  7, 11, 14

Lockett v. Board of Education of Muscogee County,
976 F.2d 648 (11th Cir. 1992) ..................................................................................  2

Morgan v. Nucci,
831 F.2d 313 (1st Cir. 1987)..................................................................................... 12

Pasadena City Board of Education v. Spangler,
427 U.S. 424 (1976) ............................................................................................  9 n

Securities and Exchange Commission v. Hermil,
838 F.2d 1151 (11th Cir. 1988).............................................................................  12n

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) ...................................................................................................  9_io

Statutes and Rules

Fed. R. App. P. 26.1 ............................................................................................................... 2

11th Cir. R. 26.1-1 .................................................................................................................. 2

li



STATEMENT OF ISSUES MERITING EN BANC CONSIDERATION

Appellants, Jerry Lockett et al., respectfully pray that this Court rehear this appeal, 

en banc, in order to decide the following issues of exceptional importance in this Circuit:

Whether a school district which had formerly operated as a de jure segregated 

system and which remained subject to a federal court injunctive order to desegregate 

may be relieved retroactively of its obligation to take affirmative steps to rid itself 

of the vestiges of the prior dual system;

Whether a formerly dual school system can establish that current racial 

identifiability of its schools has resulted from demographic changes unrelated to the 

former dual system if it does not introduce evidence concerning school board 

decisions affecting student assignments and enrollments, school capacities, etc. as 

well as evidence of the impact such decisions had upon the racial composition of 

school facilities; and

Whether a formerly dual system can be found to have complied in good faith 

with its obligations under a federal court desegregation order when the school 

district unilaterally ceases to implement an unvacated injunctive decree, fails to 

maintain records documenting the impact on school enrollments of pupil assignment 

changes that it subsequently makes, and refuses to undo such changes even after it 

becomes evident that they have reduced the level of desegregation and increased the 

number of racially identifiable schools in its system.

STATEMENT OF PROCEEDINGS AND DISPOSITION 

Appellants, a class of African-American schoolchildren and their parents, 

commenced this lawsuit in 1964 challenging the dual school system in place in Muscogee

1



County and seeking the reorganization of the system into a unitary, nonracial system. The 

history of the case between its filing and 1991, the part of the proceedings relevant to the 

current appeal, is set forth more fully at pages 2-8 of the Amended Brief for Appellants, 

as well as at pages 1466-67 of the panel's most recent decision (slip op.).

In 1991, Appellants filed a motion for further relief which focused on the issue of 

student assignment in light of substantial deviation in a number of schools from the district­

wide racial enrollment ratio. The motion raised questions about school construction and 

school closing policies as well as student transfers and sought as relief to require 

compliance with the terms of the 1971 desegregation plan and decree (calling for the school 

district to adjust assignments so that the student populations of the schools reflect the 

overall racial ratio of students in the County) or, in the alternative, that the Court enter 

a new order which would assure the elimination of the vestiges of the prior dual system.

The District Court denied the motion and dismissed the entire action on the grounds 

that the original plaintiffs had been graduated from the school district, thereby rendering 

the case moot. On appeal, this Court vacated the District Court’s dismissal of the case and 

remanded for further proceedings consistent with the law of this Circuit. Lockett v. Board 

of Education o f Muscogee County, 976 F.2d 648 (11th Cir. 1992).

Prior to this Court’s 1992 ruling, plaintiffs filed a Motion for Injunction Pending 

APPeal, seeking to enjoin the implementation of a new "neighborhood school" student 

assignment plan which the defendants had adopted following the District Court’s dismissal 

of the action. The District Court denied this motion and similarly denied a motion for 

preliminary injunction. In 1994, this Court affirmed that denial of preliminary injunction 

but, noting the pendency of proceedings in the district court as required by its 1992 remand

2



directions, ordered the district court to grant plaintiffs’ motion to substitute new 

representative plaintiffs.

From June 14, 1994 to June 17, 1994, the District Court conducted a hearing on a 

Motion filed by Appellees on June 7, 1993 seeking dismissal of the suit. On November 18, 

1994, the District Court granted that motion, vacated all orders and again dismissed the 

case, holding that the defendants had effectively disestablished the dual system in 1963 and 

then effectively desegregated the schools in the 1971-72 school year.

Plaintiff black schoolchildren appealed. On August 28, 1996, a panel of this Court 

unanimously reversed the dismissal and provided instructions to the trial court on remand. 

However, following a submission of a Motion for Rehearing by Appellees in September, 

1996, the same panel, by a 2-1 vote and without requesting any response from Appellants 

or hearing reargument, affirmed the District Court’s dismissal in a per curiam opinion 

issued on May 5, 1997. This Suggestion of Rehearing En Banc seeks reconsideration of the 

second panel decision.

STATEMENT OF FACTS

From June 14, 1994 to June 17, 1994, the District Court conducted a hearing on 

Defendants June 7, 1993 Motion for Final Dismissal. Under applicable case law, discussed 

below, the Defendants were obligated to show both that existing racial identifiability of 

their schools was not the result of their actions or a remnant of the prior unconstitutional 

dual system of education, and also that they had eliminated -- to the extent practicable -- 

all vestiges of that prior system.

Defendants relied heavily on two expert witnesses, who testified that present 

segregation in residential patterns (reflected in school enrollments under the system’s

3



"neighborhood school" plan) is the result of housing patterns and demographic changes 

since 1971; that an increase in African-American population in the southern and central 

sections of Muscogee County made it more difficult over time to maintain racial balance 

in the school district; and that the racial composition of the schools in the 1980’s (after the 

district stopped making annual zone changes to maintain balance) were thus the result of 

demographic patterns beyond the control of the school board. R7-129-28 to 82. These 

expert witnesses also testified, however, that they did not examine, or include in their 

analyses, data regarding the effects of various decisions made and actions taken by the 

school system, including specific changes in attendance zone lines, the construction of new 

buddings, the use of portable buildings, or changes in grade structures and student transfers 

prior to 1989. R7-129-85-90, 141-151, R8-129-97-99, 173. School administrators called as 

witnesses by defendants testified, for example, that the system initially made multiple 

attendance zone changes (up to 45 in one year) in an effort to comply with the 1971 order. 

R7-129-200 to 214.

Defendants argued that the school district had fully complied with the 1971 order 

during the 1970 s and had achieved unitary status as of 1980. The school administrator 

cited above also testified that he was instructed to decrease greatly the number of 

alterations in zone lines starting in the early 1980’s because of parental opposition to the 

practice and because, he was informed, prevailing case law no longer required such changes 

to be made. Id. at 200, 202-213-14. Defendants also offered testimony that a number of 

parents agreed with the return to a neighborhood" system of assignment and were opposed 

to busing for purposes of desegregation.

Plaintiffs expert witness concluded that although most of the schools in the district

4



fell within fifteen percentage points of the system-wide racial composition initially, after 

1977 school enrollments began to deviate more and more substantially from those 

proportions. Id. at 174 to 178. By 1993, twenty-four of the elementary schools, five of the 

nine middle schools and four of eight high schools no longer were desegregated at an 

appropriate level, in his opinion. Id. at 175. Furthermore, he testified, new schools were 

not constructed in a manner which would increase desegregation, id. at 192, 193; data 

maintained by the district were insufficient to permit conclusions to be drawn regarding the 

segregative or desegregative impact of school facility closings, id. at 186; there were serious 

questions about the effect of school enlargement or expansion on desegregation, id. at 194; 

and reports were maintained in a way that made monitoring of compliance difficult, id. at 

203 to 207.

The expert witness further testified that he believed that the school board failed to 

comply with the 1971 Order and that more could have been done to address racial 

identifiability. Id. at 217. For example, he testified that the majority-to-minority transfer 

program implemented in 1992 had a minimal effect on desegregation.

Plaintiffs also introduced evidence of the school district’s awareness, in the late 

1980’s and early 1990’s, of the need to take steps to effect desegregation as well as of the 

availability of plans to do this, which were rejected in favor of the "neighborhood school" 

plan. One witness described his 1991 service on a committee charged with eliminating 

racially identifiable schools. R9-129-18. After consultation with school administrators and 

an outside school desegregation expert, the committee arrived at a desegregation plan 

which combined a number of ways of desegregating the schools. Id. at 23. The school 

district rejected the plan, adopting instead a "neighborhood" assignment plan.

5



Two former school board members testified to their understanding, during the 

period of their service on the board, that the school district remained subject to the 1971 

Order. R9-129-150. They also confirmed that the question of the need to racially balance 

the schools came up repeatedly in the late 1980’s and early 1990’s, R9-129-78.

District Court’s November 18, 1994 Opinion 

On November 18, 1994, the District Court issued an opinion finding that the school 

district had effectively disestablished the dual system in 1963 and then effectively 

desegregated the schools in the 1971-72 school year. R4-137-31, 47. The Court dismissed 

the matter, holding that the school district had also demonstrated good faith and had 

discharged its obligation to remove the vestiges of discrimination during the first ten years 

of the 1971 desegregation plan. Id., at 47.

Plaintiffs filed a notice of appeal of November 30, 1994.

ARGUMENT IN SUPPORT OF REHEARING EN BANC 

This matter is presented to the Court in circumstances that compel reconsideration 

en banc for reasons that are perhaps "every bit as important for the issues it raises as to the 

proper . . . functioning of] . . . the federal judicial system" as they are to the substantive 

issues of school desegregation, Dayton Board of Education v. Brinkman, 433 U.S. 406, 409 

(1979).

On its initial consideration of this appeal, after full briefing and oral argument, the 

panel unanimously determined that the judgment below could not stand, consistent with 

controlling decisions of the United States Supreme Court. The opinion for the panel.

6



authored by Judge Barkett, identified specific legal errors committed by the district court1 

and would have remanded with instructions. That opinion, while vacated by the ruling of 

which en banc review is now sought, has been published in the permanent volumes of the 

Federal Reporter, Lockett v. Board o f Education of Muscogee County, 92 F.3d 1092 (11th 

Cir. 1996), and it will remain available to scholars, historians and attorneys in this Circuit.

We respectfully suggest, therefore, that it should be of no small concern to this 

Court that the panel’s replacement per curiam opinion, issued over the dissent of Judge 

Barkett nearly eight months after the school board’s timely submission of a rehearing 

petition but without affording appellants any opportunity to respond, does not address any 

of the legal errors catalogued in the original opinion. Instead, it invokes the "clearly 

erroneous" rule that shields a trial court’s factual determinations. Lockett v. Board of 

Education of Muscogee County, No. 94-9355 (11th Cir. May 5, 1997), slip op. at 1467, 1470,

See, e.g, 92 F.3d at 1097-98 ("to the extent that the district court ignored the school 

district’s actions after 1980, while the district was still subject to the 1971 order, the court 

erred"); id. at 1099 ("the district court erred to the extent that it held . . . ."); id. at 1099- 

1100 ("[t]he proper analysis requires a court to examine the various factors that may have 

contributed to the current racial imbalances, and to determine whether, in spite o f the 

school system’s affirmative efforts to accomplish maximum practical desegregation, the 

impact of demographic shifts still would have resulted in that imbalance. . . . because of an 

absence of data [in the record], this court has [and the district court had] no basis for 

assessing the arguably adverse impact that the school board’s [actions] . . .  had on racial 

composition within the schools. . . . [W]e do not believe that the school district carried its 

burden . . .") (emphasis in original).

7



1997 WL 189073, at *3, *6.

Plaintiffs-appellants in this case, other litigants in this Circuit and their counsel, and 

the public understandably share the expectation, under our system, that courts will provide 

a reasoned elaboration for their decisions.' The process of explicating a rationale for 

decisions contributes significantly to public understanding of and support for the judicial 

branch of government and protects against perceptions that arbitrary, political, or extra- 

legal ajudication has taken place. These considerations weigh even more heavily in favor 

of rehearing en banc in this matter, which involves the protection and effective enforcement 

of the constitutional rights of minor schoolchildren.

In short, "simple justice" demands that this matter be reheard by the full Court.

The Panel’s Per Curiam Opinion Conflicts with 

Controlling Supreme Court Precedent______

A number of unassailable principles, relating to the need to comply with court orders 

in general, and to the standards for judging compliance with constitutional obligations in 

school desegregation cases in particular, are applicable to this appeal. First, it is axiomatic 

that parties are required to comply with the terms of injunctions until the orders are 

modified or dismissed, even if the terms of the orders are unconstitutional:

“Of course, some cases are disposed of summarily and without opinion if they are 

deemed to involve no legal issues sufficiently serious to warrant discussion. Such rulings 

carry no precedential value. A determination in this case that appellants raised no serious 

legal questions worthy of analysis seems indefensible in light of the panel’s earlier 

unanimous ruling. Moreover, the panel majority’s recent reversal of position is neither 

unpublished, nor without opinion, nor lacking precedential weight.

8



Because of . . . concern that outstanding injunctive orders of courts be 
obeyed until modified or reversed by a court having the authority to do so, 
this Court has held that even though the constitutionality of the Act under 
which the injunction is issued is challenged, disobedience of such an 
outstanding order of a federal court subjects the violator to contempt even 
though his constitutional claim might be later upheld.

Pasadena City Board o f Education v. Spangler, 427 U.S. 424, 439 (1976) (citations omitted);

also Celotex Corp. v. Edwards, 514 U .S .___, ___, 115 S. Ct. 1493, 1498, 131 L. Ed. 2d

403 (1995).

Also beyond question are the obligations imposed upon school districts which have 

been liable for operating a dual school system. Such districts remain under an "affirmative 

duty to take whatever steps might be necessary to convert to a unitary system in which 

racial discrimination would be eliminated root and branch," Columbus Board o f Education 

v. Penick, 433 U.S. 449, 459 (1979), quoting Green v. County School Board, 391 U.S. 430, 

437-38 (1968). This duty goes beyond adopting a race-neutral stance; instead, formerly dual 

school districts have the responsibility to take all steps necessary to eliminate vestiges of 

the unconstitutional dual system. Freeman v. Pitts, 503 U.S. 467, 486 (1992). With regard 

to student assignment, the obligation is particularly great: "Having once found a violation, 

the district judge or school authorities should make every effort to achieve the greatest 

possible degree of actual desegregation, taking into account the practicalities of the 

situation." Davis v. Board of School Commissioners, 402 U.S. 33, 37 (1971).

The continued existence of unremedied violations is presumed in districts which 

contain schools whose students bodies are racially disproportionate: "[I]n a system with a 

history of segregation the need for remedial criteria of sufficient specificity to assure a 

school authority’s compliance with its constitutional duty warrants a presumption against 

schools that are substantially disproportionate in their racial composition." Swann v. Charlotte-

9



Mecklenburg Board of Education, 402 U.S. 1, 26 (1971) (emphasis added). "If the unlawful

de jure policy of a school system has been the cause of the racial imbalance in student

attendance, that condition must be remedied. The school district bears the burden of

showing that any current imbalance is not traceable, in a proximate way, to the prior

violation." Freeman v. Pitts, 503 U.S. at 494.

Equally relevant to this appeal is the principle that a showing by the district of good

faith is a proper and necessary consideration in determining whether it should be released

from its affirmative obligations by a finding of unitary status: "[A] school system is better

positioned to demonstrate its good-faith commitment to a constitutional course of action

when its policies form a consistent pattern of lawful conduct directed to eliminating earlier

violations. " Freeman v. Pitts, 503 U.S. at 491. Furthermore, the Supreme Court has,

without hesitation, approved continued district court supervision when "a school district has

not demonstrated good faith under a comprehensive plan to remedy ongoing violations."

Id. at 499. Actual malice is not required in order to show an absence of good faith; acts

of omission as well as commission are sufficient:

Inaction in the face of affirmative duty to desegregate is not lawful conduct.
A school system that does not take the required steps cannot be found in 
good faith and may not be discharged from continued supervision with 
respect to any facet of its operation.

Brown v. Board of Education, 978 F.2d 585, 592 (10th Cir. 1993), cert, denied, 349 U.S. 294 

(1993).

As we show below, the panel majority's failure to address the legal issues which it 

had previously recognized as dispositive in its earlier opinion subverts each of these well- 

established principles.

The panel’s initial decision recognized that the District Court’s opinion was based

10



in part upon a fundamental misconstruction of the law regarding compliance with existing 

court orders:3

The school district argues, and the district court agreed, that unitary status 
had been achieved in around 1980, and therefore, the school district’s 
obligations under the 1971 order terminated at that time even though unitary 
status was not actually declared until 1994.

Lockett v Board of Education o f Muscogee County, 92 F.3d at 1097 (11th Cir. 1996). Such 

a holding is in conflict with the requirement that parties comply with injunctions until they 

are expressly relieved of such obligations4 as set forth in the Spangler and Celotex decisions

3It is undisputed that the Appellees did not move for modification or dismissal of the 

1971 Order until after Appellants made their attempt to enforce the order in 1991.

4In its most recent opinion, the panel adopted the District Court’s interpretation that 

a 1972 amendment to the 1971 decree required proportionate racial representation in 

schools only for the first two years of the decree’s life. Lockett v. Board of Education of 

Muscogee County, slip op. at 1469 n.2. It is unclear, however, precisely what effect either 

the panel or the District Court attached to this interpretation.

Appellants contend that, even if the order’s precise racial balance goals were 

intended to apply only for the 1971-72 and the 1972-73 school years, the amendment was 

not tantamount to a finding of "unitary status" and, therefore, the school district’s 

underlying constitutional obligation to take affirmative steps to prevent the recurrence of 

the dual system -  such as by avoiding the reestablishment of racially identifiable schools 

— remained in effect.

In fact, though, all of the evidence in the record indicates that this interpretation of 

the amendment, raised for the first time late in the proceedings after the case became

11



cited above. This type of retroactive declaration of unitary status also compromises the law 

regarding the obligations of formerly dual systems: "[U]nitariness is less a quantifiable 

‘moment’ in the history of a remedial plan than it is the general state of successful 

desegregation." Morgan v. Nucci, 831 F.2d 313, 321 (1st Cir. 1987). By reaching back in 

time to absolve the school district of an affirmative obligation clearly placed upon it by law, 

the panel majority artificially truncated the process of desegregation and, most important, 

gave its sanction to non-compliance with a federal court’s injunction.

active in 1991, was inconsistent with the conduct of all of the parties. The school district 

continued to attempt to racially balance the schools for years after the amendment was 

adopted; it continued to report on the racial composition of the schools in the 1980’s, and 

to introduce resolutions stating its intent to continue efforts to obtain proportional 

representation in the schools; school board members testified that from at least 1986, the 

school boaid treated the racial balance provisions of the 1971 Order as a requirement; and 

in 1991, a committee was formed to reduce racial identifiability in the schools.

Although it is certainly true that deference in the interpretation of an order must 

be given to the intent of the judge authoring the opinion, it is also true that a court may 

not revise a judgment under the guise of interpreting the meaning of an order. See 

Securities and Exchange Commission v. Hermit, 838 F.2d 1151 (11th Cir. 1988) (holding that, 

in the absence of ambiguity in wording of order, Court could not five years later change 

the terms of the order claiming that it was merely interpreting the order). Given the 

overwhelming evidence to the contrary, this Court is not bound to accept the tortured 

interpretation of the 1971 Order offered by the District Court twenty-three years after the 

order’s entry.

12



The District Court’s holding regarding the role of demographics in producing the

current racial identifiability of schools in Muscogee County also undermines principles

regarding both the elimination of vestiges of the prior dual system and the requirement that

school districts seeking unitary status must show that any racial identifiability is not the

result of actions that they took. The District Court’s ruling violated this principle by

finding that the school board had met its burden even though the district presented no data

concerning the effects of its own actions on the schools’ racial compositions.

The implications of ignoring this absence of data are considerable and go far beyond

the question whether or not a particular finding of fact is erroneous. Ignoring the failure

to analyze the effects of school board actions is tantamount to holding that there is no

presumption that current racial identifiability is related to the prior de jure system, or at the

very least to holding that the presumption may be rebutted by a minimal showing of

demographic change. The panel’s first opinion recognized this clearly:

The proper analysis requires a court to examine the various factors that may 
have contributed to the current racial imbalance, and to determine whether, 
in spite o f the school system’s affirmative efforts to accomplish maximum 
practical desegregation, the impact of demographic shifts still would have 
resulted in the imbalance. Unlike in Freeman, in which the DeKalb County 
School System had implemented desegregation programs to affirmatively 
combat demographic shifts, the school district in this case actually reduced 
the number of school reassignments and attendance zone changes just as 
demographic shifts began to adversely affect the racial composition of the 
schools, and did not implement new desegregation initiatives in their place. 
Moreover, because of the absence of data, this court has no basis for 
assessing the arguably adverse impact that the school board’s neighborhood 
assignment plan, grade structure changes, portable classrooms, and student 
transfers had on racial composition within the schools. Thus, on the record 
presented, we have no way of assessing the impact of shifting demographics 
on the current racial compositions compared with the other variables, 
including the school district’s actions and inaction, which arguably 
exacerbated, rather than alleviated, the racial imbalances during the 1980’s 
and 1990s. At the very least, we do not believe that the school district 
carried its burden of showing that current imbalances, caused by demographic

13



shifts or otherwise, are not the vestiges of constitutional practices.

Lockett v. Board of Education of Muscogee County, 92 F3d. at 1099-1100 (emphasis in 

original).

Inexplicably, all mention of the effect of the missing data disappears from the panel’s 

second decision, taking with it the need to enforce prevailing standards in school 

desegregation cases.

Equally problematic is the opinion of the District Court with regard to good faith. 

As in the areas discussed above, the District Court drains of any vitality the requirement 

that school districts comply with existing orders in good faith. The initial panel flagged the 

issue of good faith and addressed specific legal and factual reasons which led it to believe 

that the school district had failed to meet the requirement that it demonstrate good faith 

compliance:

[A]fter the school district had achieved proportionate representation for a 
number of years, it essentially stopped reassigning students and rezoning . . . 
moreover, the district never implemented a majority-to-minority transfer 
program, a tool basic to "every" desegregation program . . . Indeed, through 
its neighborhood assignment plan, the district affirmatively increased racial 
imbalances. . . . Given the district’s failure to abide by its obligation to make 
affirmative efforts to desegregate . . . and its disregard for the judicial decree, 
we believe the school district did not exhibit good faith for the last ten to 
fifteen years that it was subject to the 1971 order.

Lockett v. Board of Education of Muscogee County, 92 F.3d 1092 at 1101.

In its second opinion, the majority again fails to address the specific indicia of lack

of good faith and leaves, by implication, the suggestion that a party does not necessarily act

in bad faith when it stops complying with an injunction but neglects to move for

modification or dismissal of the injunction; that a school district’s obligation to take

affirmative steps to address racial imbalance can end prior to a declaraction of unitary

14



status and without recourse to the courts; and that a choice of actions which tend to 

increase the level of segregation over options which would further desegregation will not 

have an adverse effect on a court’s later determination of the bonafides of a school district 

that is still under court order. Such a result is obviously counter to the law and merits 

further consideration by this Court.

Appellants respectfully suggest that the majority opinion’s silence regarding the 

issues at the very core of this case, and of other school desegregation cases, and which the 

panel had previously identified, creates conflicts with controlling precedents that should not 

be permitted to remain unreconciled. The failure to address the inconsistencies contained 

in the two panel opinions will undercut uniformity of decisions in this Circuit.

CONCLUSION

For the foregoing reasons, appellants respectfully pray that this Court rehear this 

appeal en banc, and upon such rehearing, reverse the district court’s judgment dismissing 

the case and provide such other relief as this Court deems appropriate.

Respectfully submitted,

Elaine R. Jones Joseph Wiley, Jr .
Director Counsel 804 Second Avenue

Columbus, GA 31901
D ennis D. Parker  (706) 327-2962
NAACP Legal D efense and  

Educational Fu n d , Inc .
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Attorneys for Appellants

15



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Plaintiffs-Appellants’ SUGGESTION OF 

REHEARING EN BANC, have been served by depositing same in the United States mail, first 
class postage prepaid, on this 23rd of May, 1997, addressed to the following:

Rothschild 
233 12th Street
Suite 500, The Corporate Center 
Post Office Box 2707 
Columbus, GA 31902-2707

J. Stanley Hawkins 
Gary M. Sams 
Weekes & Candler 
Post Office Box 250 
Decatur, GA 30031

James E. Humes, II 
William B. Hardegree 
Joseph L. Waldrep 
Hatcher, Stubbs, Land , Hollis &

Carter G. Philips 
Sidley & Austin 
1722 Eye Street NW 
Washington, D.C. 20006

DENNIS D. PARKER