Lockett v. The Board of Education of Muscogee County School District Reply Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

THE BOARD OF EDUCATION OF MUSCOGEE 
COUNTY SCHOOL DISTRICT, et al.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE MIDDLE DISTRICT OF 

GEORGIA, COLUMBUS DIVISION

REPLY BRIEF FOR APPELLANTS

No. 92-8087

JERRY LOCKETT, et al

Plaintiffs-Appellants,

vs.

TINA G. STANFORD
P.O. Box 927 
537 Broadway
Columbus, GA 31902 
(404) 324-2243

DENNIS D. PARKER 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Appellants



No. 92-8087

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

JERRY LOCKETT, et al„
Plaintiffs-Appellants,

vs.

THE BOARD OF EDUCATION OF MUSCOGEE 
COUNTY SCHOOL DISTRICT, et al„

Defendants-Appellees.

APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE MIDDLE DISTRICT OF 

GEORGIA, COLUMBUS DIVISION

REPLY BRIEF FOR APPELLANTS

Defendants-appellees’ brief combines facts not properly before this Court and 

unresponsive legal authority to argue that the decision of the district court below was 

correct. In spite of the best efforts of the defendants-appellees, these arguments cannot 

change the fact that the action of the Court below flies in the face of established precedent 

and must be overturned.

Defendant-appellees first introduce issues of fact, about which there were no 

findings in the court below, as support for the court’s dismissing this thirty year old school 

desegregation case withoout holding an evidentiary hearing. Defendants-appellees argue 

that the local school district have satisfied the requirements for a declaration of unitary 

status. Defendants-appellees support this contention by referring to affidavits of the 

Superintendent and Deputy Superintendent which claim that the defendant school district 

had achieved unitary status. Despite the self-serving proclamation of the defendants-



appellees, the issue of unitary status was not addressed at all in the Court Order nor did 

plaintiffs-appellants ever have the opportunity to refute the statements of these people. 

Because these issues were never addressed in the Court below and could not have played 

a role in the dismissal by the district court, plaintiffs-appellants believe that these 

contentions are not properly before the this Court. In fact, the assertions only highlight the 

fact that the case was dismissed without the opportunity to explore the question of whether 

the defnnnendant-appellees’ school system still contains vestiges of the prior 

unconstitutional dual system.

Secondly, defendant-appellees do not address adequately the fact that the actions 

of the Court below directly contradict binding precedent. See Plaintiffs-appellees Brief pp. 

10-13. Defendant-appellees repeat the assertion of the Court below that dictum in 

Pasadena City Board of Education v. Spangler, A ll U.S. 424 (1976) is controlling in this case. 

By so doing, the defendant-appellees and the district court choose to ignore the Court of 

Appeals’ interpretation of Spangler set forth in Graves v. Walton, 686 F.2d 1135 (5th Cir. 

Unit B, 1982), a case whose facts are almost identical to this case. Most significantly, the 

Court in ^  Graves reached its decision after Pasadena was decided and only after expressly 

taking Pasadena into account. Graves v. Walton County Board of Education, 686 F.2d at 

1138. Defendants only concession to the fact that their position is completely counter to 

binding precedent is to suggest that Graves be overruled. This suggestion itself is contrary 

to precedent. In this Circuit, a panel of the Court of Appeals cannot disregard binding 

precedent absent an intervening Supreme Court decision or en banc Circuit decision. 

Flowers v. United States, 764 F.2d 759 (11th Cir. 1985). Defendants have not cited any 

subsequent Supreme Court or en banc decision which supports their position.

In fact, defendants-appellees fail to suggest any compelling reason to support 

overruling Graves. A careful examination of the facts of both Graves and Pasadena 

demonstrates why defendants-appellees are incorrect in their statement that Graves was 

wrongly decided.



Contrary to defendants-appellees’ assertions, the Fifth Circuit was not mistaken in 

its reading of Pasadena1. Defendants-appellees, and the Court below, make the error of 

reading into the Pasadena decision much more than it states. Specifically, defendants- 

appellees suggest that the Court in Pasadena justifies dismissing a school desegregation with 

prejudice when the original plaintiffs have graduated. By so doing, the defendants- 

appellees, and the Court below, bestow upon a mootness determination the force of res 

judicata. Nothing in Pasadena supports the interpretation that a finding of mootness like 

the one to which the Court referred in dictum in Pasadena would have the effect of 

terminating the obligation of a school district to remedy prior discrimination or insulate 

them from actions brought by victims of the lingering vestiges of discrimination.

Seen in this light, the decision of the Fifth Circuit in Graves permitting the 

substitution of plaintiffs is actually an exercise in judicial economy. Rather than dismissing 

the case for mootness as to the original plaintiffs and requiring new plaintiffs to initiate 

proceedings through a motion to intervene and a new complaint, the Court allowed 

substitute plaintiffs to continue the original case. This approach is not only efficient but 

makes sense given the obligation of defendants in school desegregation cases to eliminate 

vestiges of discrimination.

None of the cases cited by the defendant-appellees dictate a different result in this 

case. Defendant-appellees cite cases in which there were findings of mootness after 

challenged practices ceased or plaintiffs were no longer subjected to injury. Neither 

situation exists in this case. Plaintiffs-appellants still contend, but were denied the 

opportunity to prove, that vestiges of the prior dual school system persist in the defendant 

school system. And although there is no question that the case is moot as to the original 

plaintiffs, plaintiffs-appellants contend that African-American school children are still

‘Defendants-appellees are simply wrong in their assertion that current students were 
involved in the Pasadena litigation and the language that they cite does not support their 
contention: "And while counsel may wish to represent a class of unnamed individuals still 
attending the Pasadena schools . . .'Pasadena City Board of Education v. Spangler, A ll U.S. 
at 426(emphasis added).



victimized by those vestiges and have the right for an opportunity to vindicate their 

constitutional rights.

In fact, the effect of a dismissal with prejudice2 can best be understood by 

comparing the effect of the order of the court below with the effect of mootness dismissals 

in some of the cases cited by the defendants-appellees. In both Indianapolis School 

Commissioner v. Jacobs, 420 U.S. 128 (1975) and Baxter v. Palmigiano, 425 U.S. 310 (1976) 

cases were dismissed as to the original plaintiffs but there is no indication that the 

dismissals were intended, or had the effect of, extinguishing rights of subsequent potential 

plaintiffs. Later plaintiffs in Jacobs who were able to show injury would presumably be able 

to question the constitutionality of school regulations regarding school publications without 

the fear that any of their substantive rights had been decided by the mootness 

determination in the case of earlier tudents. Similarly, inmates who remained at San 

Quentin would not have had their right to question the constitutionality of prison 

regulations compromised by the earlier determinations in Baxter.

Unfortunately, black students will suffer by the dismissal ordered by the court below. 

Their efforts to enforce their substantive right to attend a school system free of vestiges of 

the prior dual school system would be burdened by the necessity of proving intentional 

discrimination by the school district anew as if a prior finding of discrimination had not 

occurred. To subject them to this additional hurdle would make a mockery of the promise 

of Brown and subordinate the requirement of redressing prior constitutional violations to 

a technical, procedural rule.

Defendant-appellees’ statement that they should not be required to go through a 

unitary status hearing before a determination of mootness is made completely obscures the 

question which is now before the court. There has never been a question about whether 

the case was moot as to the original plaintiffs. Plaintiffs-appellants agree that the original 

plaintiffs are not suffering the requisite injury. The real question is whether the district

2There is no question that the court below intended the dismissal below to be with 
prejudice as any new action would have to allege new constitutional violations and could 
not be based upon the enforcement of the old order,



court was correct in dismissing the case with prejudice, thereby terminating the matter, 

particularly when there are proposed substitute class members as is the case here.

There is absolutely no ambiguity about the process that must be followed before a 

school desegregation is finally terminated. In a case decided last week, this Court has 

reaffirmed that school desegregation cases cannot be dismissed until a hearing with notice 

is held:

. . . [A] previously segregated school system does not become desegregated 
so as to achieve unitary status and be relieved of court supervision simply by 
implementing a desegregation plan. See, e.g., Pitts v. Freeman, 755 F.2d 1423,
1426 (11th Cir. 1985). Rather, the district court must retain jurisdiction for 
a period of time after the school system has implemented a desegregation 
plan to ensure the achievement of the ultimate goal-a unitary public school 
system in which the state does not discriminate between children on the basis 
of race. Lee v. Macon County Bd. of Educ., 584 F.2d 78, 81 (5th Cir. 1978).
After a period of time sufficient to achieve these objectives has elapsed—this 
court has required a period of not less than three years—a district court may 
terminate a desegregation case by holding a hearing to determine if the 
school sytem has achieved unitarty status. United States v. Texas Educ. 
Agency, 647 F2d 504, 508-09 (5th Cir. Unit A, May 1981), cert, denied, 454 
U.S. 1143 (1982). The district court should give the plaintiff notice of the 
hearing and should allow the plaintiff an opportunity to show why the court 
should continue to exercise jurisdiction.

Lee v. Etowah County Bd. of Educ., No. 88-7551 slip opinion at 13, 14 (11th Cir., June 4,

1992). No such hearing was ever held in this matter nor have the plaintiffs-appellants had

the opportunity to have such a hearing.



Conclusion

Because of the failure of the district court to take the necessary steps prior to 

relinquishing jurisdiction, plaintiffs-appellants respectfully request that this case be 

remanded to the district court for further proceedings.

Respectfully submitted,

TINA G. STANFORD 
P.O. Box 927 
537 Broadway 
Columbus, GA 31902 
(404) 324-2243

DENNIS D. PARKER 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 219-1900 
Attorneys for Appellants



Certificate of Service

I hereby certify that on this 10th day of June, 1992, I served true and corrct copies 

of the foregoing Appellant’s Reply Brief on the persons named below by depositing copies 

of the Brief in the United States mail, prepaid to James Humes, II, William B. Hardegree 

and Joseph L. Waldree, Counsel for Defendants-Appellees at Hatcher, Stubbs, Land, Hollis 

and Rothschild, P.O. Box 2707, Columbus, GA 31991.

Dennis D. Parker