Morgan v. Georgia Appendices to Petition for Certiorari to the Supreme Court of Georgia

    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

No. 92-8087

JERRY LOCKETT, et al.,

Plaintiffs-Appellants,

vs.

BRIEF FOR APPELLANTS

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

JERRY LOCKETT, et al.

Plaintiffs-Appellants,

vs.

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

Defendants-Appellees.

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons and 

entities have an interest in the outcome of this appeal:

Board of Education of Muscogee County School District, Georgia, Director of 

Personnel, Supervisor of Instruction, Members and Superintendent.

Gladis R. Crawford.

Hon. J. Robert Elliot, United States District Judge.

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

School District, Georgia, et al.

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

School District, Georgia, et al.

Amanda Lockett.

Robert J. Leonard.

Gwendolyn Lockett.

Jim H. Lockett, Jr.

Dennis D. Parker, as attorney for Jerry Lockett, et al.

C-l of 2



Tina G. Stanford, as attorney for Jerry Lockett, et al.

Joseph L. Waldrep, as attorney for the Board of Education of Muscogee County 

School District, Georgia, et al.

James Walker.

Dennis D. Parker

C-2 of 2



Statement Regarding Oral Argument

Plaintiffs-appellants respectfully submit that oral argument is unnecessary in this 

case. The questions presented are straightforward ones involving adherence to Eleventh 

Circuit and Supreme Court precedent regarding the maintenance of proper parties in 

school desegregation cases and the affirmative obligation of a previously segregated school 

district to remove to the extent practicable all vestiges of that dual system.



TABLE OF CONTENTS

Jurisdiction....................................   1

Statement of the C a s e .............................................................................................................  2

Summary of Argument ..........................................................................................................  8

ARGUMENT ....................................................................................................................... 10
The decision to dismiss the case against the Muscogee 
County School District is contrary to all applicable law 
because the defendants-appellees have never been found 
to have eliminated the vestiges of prior illegal 
segregation............................................................................................ 10

A. The District Court erred in not 
permitting substitute plaintiffs from 
enforcing the 1971 Court Order that had 
been entered to redress Constitutional
grievances of all black school children.................................. 10

B. The District Court erred in dismissing the
existing 1971 Desegregation Order without first 
holding a hearing to determine if the defendants- 
appellees had successfully rid the Muscogee 
County School District of the vestiges of prior 
discrimination........................................................................... 14

C onclusion..............................................................................................................................  19

Certificate of Service.............................................................................................................  20

l



TABLE OF AUTHORITIES

Cases

Pages

Amos v. Board of Directors of City of Milwaukee, 408 F.Supp. 765 (E.D. Wis.
1976).......................................................................................  17

Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir. 1973) .........................................  11

Columbus Board of Education v. Penick, 443 U.S. 449 (1979) .......................................  16

Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980) ..................................  13

Flowers v. United States, 764 F.2d 759 (11th Cir. 1985)...................................................  13

Gaines v. Dougherty County Board Of Education, 334 F.2d 983 (5th Cir. 1 9 6 4 )..........3

Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir.
1 9 8 5 )..............................................................................................................................  15

* Graves v, Walton County Board of Education, 686 F.2d 1135 (5th Cir. Unit B, 1982) . .
9-14

* Green v. County School Board, 391 U.S. 430 (1 9 6 8 )...................................................  15-17

Greenfield v. Villager Industries, 483 F.2d 824 (3rd Cir. 1973)......................................  17

Jacksonville Branch, NAACP v. Duval County School Board, 883 F.2d 946 (11th Cir. 
1 9 8 9 ).............................................................................................................................. 16

Jones v. Caddo Parish, 704 F.2d 206 (5th Cir. 1983) ........................................................  14

Kelley v. Metropolitan County Board of Education of Nashville, 463 F.2d 732, 743 (6th Cir. 
1972), 409 U.S. 1001 (1972).........................................................................................  11

Lee v. Autauga County Board of Education, 514 F.2d 646 (5th Cir. 1975) .................  17

Lee v. Macon County Board of Education, 584 F.2d 78, (5th Cir. 1 9 7 8 )......................  15

Lockett v. Board of Education of Muscogee County School Dist., Georgia, 342 F. 2d 225 
(5th Cir. 1965) ............................................................................................................. 3

Lockett v. Board of Education, Muscogee County School District, 391 F.2d 272 (5th Cir. 
1 9 6 8 ).................................................................................................................................. 3

* Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976).............................  13

* Pitts v. Freeman, 755 F.2d 1423 (11th Cir. 1985)................................................................. 15

ii



Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974) cert, granted, 425 U.S. 
990 (1976) ....................................................................................................................  11

Rogers v. Paul, 382 U.S. 198 (1965).................................................................................  11

Sannon v. United States, 631 F.2d 1247 (5th Cir. 1980)...............................................  13

Sender v. General Motors Corp., 532 F.2d 511 (5th Cir. 1976)...................................  11

Sender v. Roadway Express, Inc.485 F.2d 441 (5th Cir. 1981) ..........................................11

Stell v. Savannah-Chatham County Board of Education, 334 F.2d 983 (5th Cir. 1964) . 3

* Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) ...................... 15

United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir. 1966), affd
per curiam 380 F.2d 385 (5th Cir.), cert, denied sub nom. Caddo Parish School Bd. 
v. United States, 389 U.S 840 (1967) (en b a n c ) ........................................................3

Woods v. Barnett Bank of Fort Lauderdale, 765 F.2d 1004 (11th Cir. 1985), rehearing 
denied 772 F.2d 918 ..................................................................................................... 9

42 U.S.C. § 1983

Statutes
Pages: 

. . .  2

F.R.C.P. 23 8, 12, 17

in



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 92-8087

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

BRIEF FOR APPELLANTS

Jurisdiction

This appeal is taken from a January 21, 1992 Order denying Plaintiffs-Appellants’ 

Motion for Preliminary Injunction and Supplemental Relief dated April 30, 1991 and their 

Motion for Temporary Restraining Order and Preliminary Injunction dated December 5, 

1991, and dismissing the case as moot.1 Since the Order is a final decision and denies 

requests for injunctive relief, this Court has jurisdiction over this appeal pursuant to 28 

U.S.C. §§ 1291 and 1292.

‘Although the District Court’s opinion does not directly address the Plaintiffs- 
Appellants’ June 17, 1991 Motion to Substitute Named Plaintiffs, the opinion itself amounts 
to a denial of that motion, which is confirmed by the January 21, 1992 docket entry 
characterizing the Court’s Order as denying Plaintiffs-Appellants’ Motion to Substitute. R-
45.

1



Statement of the Case

Proceedings Below

This appeal results from the most recent in a series of attempts by plaintiffs in both 

the District Court and the Court of Appeals to require the defendants-appellees to comply 

with their obligation to take necessary affirmative steps to remove vestiges of the prior 

unconstitutional dual system from the Muscogee County School District.

Prior Proceedings

This action was commenced by the filing of a complaint on January 13, 1964 under 

the name of Bryan v. Board of Education of Muscogee County School District, Georgia. The 

complaint charged the defendants with operating a dual school system in violation of the 

Fourteenth Amendment to the Constitution of the United States and 42 U.S.C. § 1983. 

The original complaint was filed on behalf of a number of minors and their parents and 

was brought "on behalf of all other Negro children and their parents in Muscogee County 

who are similarly situated. R-1A-2

On April 22, 1964, the District Court denied the plaintiffs’ motion for an order 

enjoining the defendants from operating a school system that permitted discrimination on 

the basis of race and requiring the defendants to take steps to desegregate immediately 

all aspects of the defendant-appellee school district. R-1D-14. In denying the application, 

the District Court rejected the plaintiffs’ contentions that steps should be taken to address 

segregation in every facet of the school district’s operation and referred with approval to 

the defendants’ proposed plan, which permitted twelfth grade students to attend the schools 

of their choice but which allowed segregation in all other grades. Under this plan an 

additional grade was to be desegregated each year until the whole system would ultimately 

be desegregated twelve years later. R-1D-9, 10. The District Court also deferred 

indefinitely any consideration of the question of the desegregation of faculty. Id.

2



On appeal, the Fifth Circuit upheld the District Court’s decision refusal to issue an 

injunction and upheld the decision to defer the consideration of teacher and administrative 

assignments but remanded the case with instructions to increase the speed of desegregation 

under the plan and to implement a freedom-of-choice plan consistent with the holdings of 

Gaines v. Dougherty County Board Of Education, 334 F.2d 983 (5th Cir. 1964) and Stell v. 

Savannah-Chatham County Board of Education, 334 F.2d 983 (5th Cir. 1964). Lockett v. 

Board of Education of Muscogee County School Dist., Georgia, 342 F. 2d 225 (5th Cir. 1965). 

Upon remand, a voluntary freedom-of-choice plan was instituted.

In 1967, plaintiffs-appellants returned to the District Court, this time moving for 

summary judgment and an order granting additional relief to bring the defendants in 

compliance with the then recent case of United States v. Jefferson County Board of 

Education, 372 F.2d 836 (5th Cir. 1966), affd per curiam 380 F.2d 385 (5th Cir.), cert, denied 

sub nom. Caddo Parish School Bd. v. United States, 389 U.S 840 (1967) (en banc). The 

plaintiffs relied on language in Jefferson that set forth specific terms of a proposed decree 

that was intended " . . .  as far as possible, to apply uniformly throughout this circuit in cases 

involving plans based on free choice of schools." United States v. Jefferson County Board of 

Education, 372 F.2d 836 at 894. In order to bring the Muscogee County School District 

into compliance with this decision, plaintiffs-appellants sought additional relief to require 

that the defendants-appellees implement a mandatory rather than voluntary freedom-of- 

choice plan, that all grades be desegregated immediately, and that segregation and/or 

discrimination in the areas of services, facilities, activities and programs, and faculty and 

staff be eliminated.

In a decision filed August 16, 1967, the District Court, again relying on assurances 

by the defendants-appellees that they intended to comply with the law, refused to enter an 

order that would have implemented the Jefferson mandate.

As it had in 1965, the Fifth Circuit remanded the matter to the District Court with 

instructions that the school board file a plan consistent with the law. Lockett v. Board of

3



Education, Muscogee County School District, 391 F.2d 272 (5th Cir. 1968).

Following the United States Supreme Court decision in Green v. County School 

Board o f New Kent County, 391 U.S. 430 (1968), holding that freedom of choice plans that 

did not bring about substantial desegregation were insufficient means of achieving a unitary 

system, the plaintiffs-appellants, on June 20, 1968, again petitioned the District Court for 

further relief to bring the Muscogee County School District into compliance with the 

Supreme Court’s holding. On February 5, 1969, the District Court denied the motion.

On October 1, 1970, the plaintiffs-appellants again renewed their efforts to obtain 

further relief. The District Court stayed the motion pending decision of cases then pending 

in the Supreme Court. Plaintiffs-appellants appealed the stay to the Fifth Circuit. That 

Court, relying on Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), 

Singleton v. Jackson Municipal School District, 419 F.2d 1211 (5th Cir. 1969), rev’d in part 

on other grounds sub nom. Carter v. West Feliciana Parish School Board, 369 U.S. 290 (1970); 

Carter v. West Feliciana Parish School Board, 432 F.2d 875 (5th Cir. 1970) and United States 

v. Hinds County School Board, 433 F.2d 619 (5th Cir. 1970), remanded the case to the 

District Court and directed that the District Court require the defendants-appellees to 

implement a plan that dealt with the issues of student and faculty assignments and that 

required defendants to file semi-annual reports. Lockett v. Board o f Education o f Muscogee 

Co. School Dist., Georgia, (5th Cir. 1971).

On July 14, 1971, the District Court, over the objections of plaintiffs-appellants, 

approved a plan proposed by the defendants-appellees. Plaintiffs-appellants then 

challenged two aspects of the plan related to faculty assignment and the transportation of 

kindergarten students in an appeal to the Fifth Circuit dated July 26, 1972.

The Circuit Court remanded the matter, repeating its earlier instructions that the 

desegregation plan be amended to include all of the provisions set forth in the recent cases 

of Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 1211 (5th Cir. 1970) and 

Carter v. West Feliciana Parish School Board, 432 F.2d 875 (5th Cir. 1970). Lockett v. Board

4



of Education o f Muscogee Co. School Dist., Georgia, 447 F.2d 472 (5th Cir. 1971). Further, 

the Court of Appeals suggested two options for the treatment of kindergarten students 

under the plan and remanded in order for the Board to choose between the options.

The final plan that resulted after that remand was developed by the defendants- 

appellees and called for making student and faculty assignments to each school that would 

reflect overrall racial percentages in the school system. Student assignments in each of the 

individual schools were to be in accord with the racial percentages of the district-wide 

student body which at that time was approximately 70% white and 30% black. In making 

student assignments in compliance with the district-wide racial proportions, the plan called 

for the assignment of students to schools nearest to their homes in a number equal to 70% 

(white pupils) and 30% (black pupils) of the capacity of those schools. Any remaining 

spaces would be filled with an eye toward both student proximity to schools and 

maintaining the desired ratio of white and black students. 1SR-2.

The student assignment provisions of the order permitted students to transfer to 

schools other than those to which they were assigned for three reasons: (a) educational 

reasons [course availability], (b) where compelling hardships were shown, or (c) for other 

good reasons demonstrated by the individual students seeking transfer. The plan also 

created a continuing obligation to make student assignments consistent with changes in the 

racial composition of the school district. Accordingly, yearly revisions of the assignments 

based upon the Board’s end-of-school-year determination of the approximate ratio of white 

and black students were to be made. 2lSR-8

Similarly, faculty members were to be assigned to individual schools in the same 

racial proportion as the proportion of white-to-black teachers system-wide at elementary 

and junior\senior high school levels. The plan provided that faculty members at the 

individual schools would be granted preference on the basis of seniority. The plan also

2Under the original plan, parents of kindergarten children could choose any school but 
would only be provided free transportation if the child were assigned to the school.

5



contained the restriction that no other employment decisions would be made on the basis 

of race. Id.

Other sections of the plan required that transportation be provided to all students 

on the same basis regardless of race or color; that school closings, additions or new 

construction would be undertaken in a manner that would further the goal of proportionate 

representation in each school while facilitating student convenience; and that an equal, 

quality education be provided for each student. The proposed plan also required that the 

Board file reports on May 1 and October 1 of each year listing information about faculty 

and student enrollment and school construction. Finally, the proposed plan permitted 

periodic amendments with notice to the plaintiffs-appellants. Following the Court’s 

approval of the plan, the Board, its staff and the community were to be notified of its 

contents.

In each year since the Court approved the plan, the Board has submitted an annual 

resolution announcing the Board’s intent to either amend the plan or to continue it without 

modification. Most of the modifications made by the Board have been relatively small and 

have not substantially changed the terms of the original Order and plan. In fact, the 

greatest modification was to amend the plan in 1972 so that all students in the first and 

second grade would be assigned to the school nearest their homes. At no time prior to the 

filing of plaintiffs-appellants Motion of April 30, 1992 did the defendants-appellees either 

seek to be declared "unitary" or to modify the terms of the order which required the school 

board to assign students in a manner that would bring each individual school in conformity 

to the racial percentages in the district as a whole.

Current Proceedings

On April 30, 1991, the plaintiffs-appellants revived efforts to require the defendants- 

appellees to dismantle the former dual system by filing a Motion for Preliminary Injunction 

and supplemental relief. The motion highlighted problems in the area of student

6



assignment and school closings and construction and asked that the terms of the 1971 order 

be enforced. R-2-2,33.

Defendants-appellees responded to the motion and filed a Motion to Dismiss on 

May 20, 1971. R-10, 11, 12. For purpose of this appeal, the relevant arguments in the 

Response and Motion to Dismiss were that the Court had no jurisdiction over the case 

since the original plaintiffs were no longer students in the Muscogee County School 

District, that no plaintiffs had identified themselves or made attempts to intervene in the 

litigation, and that the defendants-appellees had satisfied the requirements of unitary status 

for a period of not less than ten years since the Court’s Order of 1971 was entered.

Included in the flurry of procedural and responsive motions that followed the initial 

filings was plaintiffs-appellants’ June 17, 1991 Motion to Substitute Named Plaintiffs. In 

that motion, the plaintiffs-appellants moved to substitute as named plaintiffs and class 

representatives a number of black residents of Muscogee County who have children eligible 

to attend the schools run by the Muscogee County School District and who are interested 

in and affected by the Muscogee County School District’s failure to comply with the 1971 

Order. The proposed plaintiffs sought to be substituted for the original class 

representatives under the procedure set forth in Graves v, Walton County Board of 

Education, 686 F.2d 1135 (5th Cir. Unit B, 1982). R-18

In a response dated June 28, 1991, and in their Supplemental Authority on Issues 

of Mootness and on Plaintiffs’ Attempt to Substitute Named Plaintiffs, dated July 1, 1991, 

defendants-appellees opposed the substitution on the grounds that there was no proof that 

the proposed substitute named plaintiffs were proper class representatives4 and that the

3Plaintiffs-intervenors filed a set of interrogatories along with the April 30, 1991 Motion 
for Preliminary Injunction and Supplemental Relief. For the purpose of this appeal, a 
description of these interrogatories and other pleadings relating solely to discovery and 
procedure motions will be omitted.

4Defendants-appellees filed Interrogatories relating to the issue of substitution of named 
plaintiffs on July 2, 1991 (R-27) to which plaintiffs-appellants responded on August 1, 1991 
and August 15, 1991. Depositions of the adult substitute plaintiffs were conducted on

7



proposed named-plaintiffs had failed to make a motion to intervene under F.R.C.P. 23.

On December 5, 1992, plaintiffs-appellants submitted a Motion for Temporary 

Restraining Order and Preliminary Injunction requesting that the District Court enjoin 

various school construction projects until it could be determined if any of the projects 

would have any effect on the school system’s obligation to dismantle the dual school system 

as set forth in the 1971 Order. R-40. Defendants-appellees opposed the motion in a 

Response and Motion to Dismiss dated December 19, 1991. R-42.

On January 21, 1992 the District Court denied plaintiffs’ Motion for Supplemental 

Relief and Preliminary Injunction of April 30, 1991, their Motion to Substitute Named 

Plaintiffs of June 17, 1991 and their motion for Temporary Restraining Order and 

Preliminary Injunction of December 5, 1991. The decision contained no discussion 

regarding the proposed substitute plaintiffs whatsoever. The Court also granted 

defendants-appellees Motions to Dismiss and dismissed the case for mootness. No hearing 

was held to determine if the proposed substitute plaintiffs were proper class representatives. 

At no time since the case was filed in 1964 has the district court made a finding that the 

defendants-appellees have successfully discharged their affirmative obligation to rid the 

school system of vestiges of the dual system nor has there even been a hearing addressing 

the issue.

Plaintiffs-appellants appeal from that part of the order dismissing the case and 

dismissing plaintiffs-appellants’ Motions for Preliminary Injunction and Supplemental Relief 

and to Substitute Named Plaintiffs.

Summary of Argument

The District Court erred in dismissing the action below on the basis of mootness

October 23 and 24, 1991. At no time after the interrogatories and depositions have the 
defendant-appellees filed any further pleadings suggesting that the proposed plaintiffs are 
not proper class representatives.

8



without conducting any evidentiary hearings or making any findings of fact. By denying the 

plaintiffs-appellants’ Motion to Substitute Named Plaintiffs, the Court completely 

disregarded the law of this circuit relating to the conduct of school desegregation cases as 

set forth in Graves v. Walton County Board of Education, 686 F.2d 1135 (5th Cir. Unit B, 

1982)5 and denied the substitute plaintiffs the opportunity to obtain redress for the 

constitutional violations alleged.

Moreover, the action of the court below effectively nullifies a well established series 

of cases in both the Supreme Court of the United States and this Circuit that require 

formerly dual school districts to remove vestiges of that dual system to the extent 

practicable. The District Court dismissed the case without exploring in a hearing whether 

the defendants-appellees had discharged their obligations and without making any finding 

of facts to that effect. At the same time, the District Court erected additional barriers for 

the plaintiffs-appellants in their attempt to vindicate their constitutional rights by requiring 

that they prove new constitutional violations, rather than permitting them to enforce the 

still valid desegregation order.

‘The Eleventh Circuit is bound by all decisions of the Former Fifth Circuit, Unit B. 
Woods v. Barnett Bank of Fort Lauderdale, 765 F.2d 1004 (11th Cir. 1985), rehearing denied 
772 F.2d 918.

9



ARGUMENT

The decision to dismiss the case against the Muscogee County School 
District is contrary to all applicable law because the defendants-appellees 
have never been found to have eliminated the vestiges of prior illegal 
segregation.6

A.The District Court erred in not permitting substitute 
plaintiffs from enforcing the 1971 Court Order that had been 
entered to redress Constitutional grievances of all black school 
children.

The District Court based its dismissal of the case on a belief that the case is moot 

because no class had been formally certified and because the original plaintiffs are no 

longer in the school system and because there have been changes in the membership of the 

board of education and in the office of superintendent since the time the case was filed. 

In so doing, the Court completely misapprehends the nature and goals of school 

desegregation law suits (see §B below). Moreover, the Court’s reasoning and decision slights 

the interests of black children currently in the school system who are among the intended 

beneficiaries of judicial efforts to eradicate vestiges of the dual system from the Muscogee 

County School District. Further, the Court’s decision flies in the face of established 

precedent.

In Graves v. Walton County Board of Education, 686 F.2d 1135 (5th Cir. Unit B, 

1982) the Fifth Circuit addressed the identical questions at issue here and arrived at the 

exact opposite result. Graves involved a school desegregation action filed in 1968 as a class 

action brought on behalf of all black school children in Walton County, Georgia. Although 

the District Court treated the case as a class action, there was no record of the class being 

certified. All of the parties agreed that the case was moot as to the original plaintiffs. In 

1980, two black school children were substituted. The Court dismissed arguments that the

6Piaintiffs-appellants contend that the proper standard of review for this appeal is 
whether the District Court committed legal error by dismissing the case and by refusing 
to grant the plaintiffs-appellants Motion to Substitute and whether the District Court 
abused its discretion by refusing to grant the plaintiffs-appellants’ Motion to Substitute.

10



matter should have been dismissed for mootness because the original plaintiffs had left the 

school system, stating:

It is firmly established that where a class action exists, members 
of the class may intervene or be substituted as named plaintiffs 
in order to keep the action alive after the claims of the original 
named plaintiffs are rendered moot.... This procedure is deeply 
implemented in desegregation cases, where the mootness 
problem constantly arises because of protracted litigation and 
the eventual graduation of named plaintiffs. Graves v. Walton 
County Board of Education, 686 F.2d 1135) (citing Rogers v.
Paul, 382 U.S. 198, 199 (1965); Rodriguez v. East Texas Motor 
Freight, 505 F.2d 40 (5th Cir. 1974) cert, granted, 425 U.S. 990 
(1976); Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir.
1973); Kelley v. Metropolitan County Board of Education of 
Nashville, 463 F.2d 732, 743 (6th Cir. 1972), 409 U.S. 1001 
(1972)).

In deciding that the action in Graves was a class action despite the absence of formal

class certification, the Court carefully considered the record and noted that 1) the case was

filed as a class action, 2) the action proceeded to trial as a class action, 3) the description

of the class affected by the alleged discrimination in the complaint and the scope of the

relief requested clearly indicated that the suit was intended to benefit a class of black

students. Graves v. Walton, 686 F.2d at 1139. After examining these facts, the Court held

"it is clear that despite the lack of a formal order certifying this case as a class suit, this case

was in fact a class action and was specifically described and treated as such by the parties

and the trial court." Graves v. Walton, 686 F.2d at 1139, 1140.

The result reached in Graves is not an anomaly. Rather, the Court’s decision

proceeds from a long line of cases in the Fifth Circuit that eschew excessive formalism in

favor of a practical view of the proceedings in cases long treated as class actions and in

which challenges to the class occurred late in the procedural day:

To state at this late date that this was not a class action, "would be to ignore 
the substance of the proceeding below in favor of an excessively formalistic 
adherence to the Federal Rules of Civil Procedure." Sender v. General Motors 
Corp., 532 F.2d 511, 522 (5th Cir. 1976), (quoting Sender v. Roadway Express,
Inc.485 F.2d 441, 447 (5th Cir. 1981)).

11



The facts of this case fit neatly into the inquiry outlined in Graves demonstrating

clearly that the Court below was unjustified in its refusal to consider the claims raised by

the plaintiffs-appellants who were prepared to add new named class representatives to the

case. As in Graves, the case has a long history of being regarded as a class action. The

complaint alleged common questions of law and fact, numerosity and fair and adequate

representation of the interests of the class consistent with the governing principles of class

actions brought under the old F.R.C.P. 23.7 Although there was some question in Graves

about whether the defendants had ever explicity agreed that the case was a class action, this

uncertainly did not change the result of the case. The facts in this case are even more

compelling, there is no question that the defendants-appellees regarded this as a class

action: The defendants-appellees acknowledged that the original complaint was brought

to address violations against a class: "Defendants admit that all of the Plaintiffs are

members of the Negro race and bring this action on their own behalf and on behalf of all

other Negro children who are similarly situated." Defendants’ Answer to Plaintiffs’

Complaint and Response to Motion for Preliminary Injunction, February 3, 1965; R-2-2.

In addition, the Court made clear that it believed that the action was a proper class action:

The plaintiffs in this case are all members of the Negro race and they bring 
this action on their behalf and on behalf of other Negro children in 
Muscogee County who are similarly situated and affected and all of the 
circumstances indicate that this is a proper class action insofar as the 
question of assignment of pupils in the public school system of Muscogee 
County is concerned. April 22, 1964 Order, R-1D-2.

Further, the nature of the relief granted in the 1971 Order confirms that the case 

was treated as a class, not individual, suit: the plan accepted by the District Court

proposed to balance school enrollments in the entire system for an unspecified period of 

time and addressed issues of faculty assignment, school construction and school closings 

that would not have been appropriate if the relief was intended simply to address the

’indeed, this case presents even more compelling reasons for permitting the substitution 
of plaintiffs since, unlike Graves, it was filed before Rule 23 was amended in 1966 to 
require class action certification.

12



injuries suffered by the original five named plaintiffs. Finally, the fact that the defendants- 

appellees dutifully filed twice yearly reports long after the original plaintiffs had left the 

school system severely undercuts their claims that this is not a proper class action and 

suggests that the mootness issue was raised as a means of eluding responsiblity under an 

injunction whose vitality they had never before questioned. Given the clear voice of 

precedent and the facts of this case, the District Court was bound under the doctrine of 

stare decisis to follow the rule of Graves and the failure to do so constitutes reversible error. 

See Flowers v. United States, 764 F.2d 759 (11th Cir. 1985) (stare decisis means that like facts 

will receive like treatment in a court of law).

Neither of the cases relied upon by the District Court dictate a contrary result. The 

District Court based its decision on dictum in Pasadena City Board o f Education v. Spangler, 

427 U.S. 424 (1976). The initial problem with such reliance is that it ignores controlling 

precedent i.e. Graves. The Graves Court specifically found that the earlier cases were not 

controlling:

The appellants-intervenors cite several post-Jacob cases holding that a court 
must dismiss an alleged class action where the individual claim of the 
purported class representative has become moot, in the absence of a proper 
certification of the class. See Deposit Guaranty National Bank v. Roper, 445 
U.S. 326 (1980); Pasadena City Board o f Education v. Spangler, 427 U.S. 424 
(1976); Sannon v. United States, 631 F.2d 1247 (5th Cir. 1980). We do not 
find appellants’ reliance upon the Jacobs line of cases persuasive.

Graves v. Walton, 686 F.2d at 1138.

In addition, the facts of the cases relied upon by the District Court are substantially 

unlike this case and the cases that represent the current law in this circuit, which 

undoubtedly explains the Court’s finding in Walton that that line of cases was not 

controlling. Unlike in Pasadena, for example, the plaintiffs are current students and their 

parents who have sought substitution in a timely manner. Moreover, unlike Pasadena, 

there are no other parties, either governmental or private who have claimed standing to 

enforce the existing injunctions.

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Moreover, the other case relied upon by the Court fails to support the Court’s 

conclusion. Jones v. Caddo Parish, 704 F.2d 206 (5th Cir. 1983), dealt with a welter of 

issues that simply are not relevant to this case. Unlike in the instant case, Jones presents 

issues of intervention by the United States and private parties and disagreements among 

groups of parties claiming to represent a class. Further, in Jones, the questions whether 

there was in fact a single class recognized in the course of the litigation was at issue. None 

of these considerations obtain in the instant case. Morever, at one point, the District Court 

in Jones had given notice to the original plaintiffs to determine if they had maintained an 

interest in the matter, notice to which there was no response. Jones, 704 F.2d at 211. By 

contrast, in the instant case, there is no disagreement whatsoever about conflicting interests 

within the plaintiff class; the proposed substitute plaintiffs seek to serve as successors to 

the original plaintiffs and do not contest any actions taken by former class representatives. 

Under Graves, the instant case must be treated as a class action and is therefore not moot.

Accordingly, the plaintiffs-appellants respectfully request that the District Court’s 

denial of the Motion to Substitute be vacated and that the matter be remanded to the 

District Court with instructions to substitute the proposed parties as plaintiffs and class 

representatives.

B.The District Court erred in dismissing the existing 1971 
Desegregation Order without first holding a hearing to 
determine if the defendants-appellees had successfully rid the 
Muscogee County School District of the vestiges of prior 
discrimination.

The whole question of plaintiff representation aside, the decision of the Court below 

must be vacated because it completely undermines a long series of cases in this Circuit and 

the Supreme Court of the United States about the goals of injunctions in cases designed 

to remedy the damage incurred by the prior operation of dual school systems. By 

dismissing the case without requiring the defendants-appellees to prove that they had 

dismantled the prior dual system, or even considering the claims of the plaintiffs-appellants 

that the Muscogee County School District is not in compliance with the express terms of

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the existing desegregation order, the Court below has eviscerated the attempts to enforce 

the constitutional rights of black residents of Columbus, Georgia and directly contradicted 

the holdings of a long series of cases.

There has never been a judicial determination, at any time since entry of the Order 

sought to be enforced, that the Muscogee County School District has attained "unitary 

status",8 nor was the 1971 Order vacated or modified so as to relieve defendants in this 

case of the obligation to comply with it.

The scope of the duties of school districts such as the Muscogee County School 

District prior to a "unitary status" finding are well-established, as are the procedures which 

must be followed by District Courts in making such a finding. Until those requirements 

are satisfied, and a proper judicial finding of "unitary status" is made, formerly segregated 

school systems continue undei an affirmative obligation to promote desegregation.

The goal of desegregation plans for school systems that had previously operated a 

dual education system is the elimination of all vestiges of state-imposed segregation. Swann 

v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971); Green v. County School 

Board, 391 U.S. 430, 437-438 (1968); Puts v. Freeman, 755 F.2d 1423, 1426 (11th Cir. 1985) 

(hereinafter "Pitts I" ) ; Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 

1403, 1414 (11th Cir. 1985); Lee v. Macon County Board of Education, 584 F.2d 78, 81 (5th 

Cir. 1978).

The mere adoption and implementation of a constitutionally acceptable 

desegregation plan does not relieve a school district of its affirmative duty to eliminate the

8In Board of Education of Oklahoma Public Schools v. Dowell, 112 L. Ed. 2d at 726,
and more recently in Freeman v. Pitts, 499 U .S .__, 60 U.S.L.W. 4287 (March 31, 1992),
the Court noted that the term "unitary" has been subjected to inconsistent use by the lower 
courts and declined to give the term any talismanic effect. Despite the Court’s doubts 
about the usefulness of the term, the decision in Oklahoma City and Freeman make clear 
that school districts continue to have an affirmative obligation to eliminate the vestiges of 
discrimination as far as practicable. 112 L.Ed.2d at 730 at 730; Freeman v. Pitts, 60 
U.S.L.W. at 4292. For purposes of brevity, plaintiffs-appellants use the term "unitary" to 
mean a system where the vestiges of discrimination have been eliminated as indicated in 
the Dowell decision.

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effects of state-imposed segregation. Prior to determining that a system has achieved 

"unitary status," district courts must first hold a hearing, with adequate notice to plaintiffs, 

in order to examine the effectiveness of the school board’s efforts. Pitts I, 755 F.2d at 1426, 

citing United States v. Texas Education Agency, 647 F.2d 504 (5th Cir. Unit A 1981), cert, 

denied, 454 U.S. 1143 (1982) and Lee v. Macon County Board of Education, 584 F.2d 78 

(5th Cir. 1978).

As recently as this year, the United States Supreme Court cited with approval the 

approach set forth in Green for determining whether school districts had satisfied their 

constitutional obligations:

The duty and responsibility of a school district once segregated by law is to 
take all steps necessary to eliminate the vestiges of the unconstitutional de 
jure system. . . . The Green factors are a measure of the racial identifiability 
of schools in a system that is not in compliance with Brown, and we 
instructed the District Courts to fashion remedies that address all these 
components of elementary and secondary school systems.

The concept of unitariness has been a helpful one in defining the 
scope of the district courts’ authority, for it conveys the central idea that a 
school district that was once a dual system must be examined in all of its 
facets, both when a remedy is ordered and in the later phases of 
desegregation when the question is whether the district courts’ remedial 
control ought to be modified, lessened or withdrawn. Freeman v. Pitts, 499 
U .S .__ , (1992), 60 LW 4287, 4292-93 (March 31, 1992).

The Supreme Court in Oklahoma City and Freeman, as noted, reaffirmed the 

necessity of an in-depth examination of school districts seeking to have desegregation 

injunctions lifted by citing with approval the language in Green that called for the 

examination of "every facet of school operations."

No hearing of the type required in the cases cited above has ever been held in this 

action, nor has the District Court ever made a finding of unitary status. Accordingly, the 

Muscogee County School District remains 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 of Education v. Penick, 443 U.S. 449, 459 

(1979j, quoting Green v. County School Board, 391 U.S at 437-38. (See, e.g, Jacksonville 

Branch, NAACP v. Duval County School Board, 883 F.2d 946 (11th Cir. 1989); Pitts I, 755

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F.2d at 1426; Lee v. Autauga County Board of Education, 514 F.2d 646 (5th Cir. 1975). At 

an absolute minimum, this duty encompasses the obligation to continue to comply with the 

Order of the District Court in this litigation unless and until it is vacated and modified 

upon a proper finding.

A finding of mootness, particularly one which amounts to a dismissal with prejudice, 

as is true in this case, obviously compromises the obligation of school districts to remedy 

past constitutional violations. The dangers that are attendant upon improper findings of 

mmotness present are particularly evident in the context of class action cases. F.R.C.P. 

23(e), by requiring court approval and notice to all class members, imposes particular 

obligations on parties seeking to dismiss or compromise class actions. At the same time, 

judges are constrained in actions they can take in class action cases: "[t]he Court has 

responsibilities as the guardian of the rights of the absentee class members, and to carry 

out those responsibilities, is ’vested [with] broad administrative, as well adjudicative power." 

Amos v. Board of Directors of City of Milwaukee, 408 F.Supp. 765, 774 (E.D. Wis. 1976) 

(appointing additional counsel to assure the adequate representation of the parties) 

(iquoting Greenfield v. Villager Industries, 483 F.2d 824 (3rd Cir. 1973)). The Court below 

clearly failed to exercise its authority in a manner consistent with the interests of class 

members.

As argued above, the effect of the dismissal by the District Court is profound. If the 

dismissal is permitted to stand, the plaintiffs-appellants will have lost irretrievably the 

possibility of enforcing injunctions which were valid and enforceable at the time that 

allegations of non-compliance were raised. More significantly, the dismissal made without 

a hearing and without findings that constitutional deficiencies were indeed remedied leaves 

completely unanswered the essentia] question whether this generation of black children are 

being burdened by the same constitutional violations that compromised the educational

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opportunities of preceding generations of black children.9 It is not sufficient to say, as 

does the Court below, that new plaintiffs could institute a new civil action, because in order 

to do so, the new plaintiffs would have to prove constitutional violations again, under the 

more exacting intent standard. It is unfair to impose such a burden on the current 

generation of black school children given both the existence of a prior finding that the 

defendants-appellees had once operated a de jure system of segregation and the complete 

lack of any proceeding designed to determine if the vestiges of that system were indeed 

eliminated to the extent practicable.

For these reasons, plaintiffs-appellants respectfully request that the Order of the 

District Court dismissing this matter be vacated and the matter be remanded for 

consideration of the plaintiffs-appellants’ Motion for Supplemental Relief and Preliminary 

Injunction.

9Plaintiffs-appellants Memorandum of Law in Support of Plaintiffs’ Motion for 
Preliminary Injunction and Supplemental Relief alleged that in the 1990-1991 school year, 
only eight of the thirty elementary schools came within even ten percentage points of the 
district as a whole. R-3-9. Plaintiffs-intervenors alleged that seventeen elementaiy schools 
had racial populations of eighty percent or more of one race, that student transfers were 
were granted in a way that exacerbated racial segregation and that school construction was 
being done in a way that increased desegregation. Id. Due to the action of the District 
Court, none of these question were examined.

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Conclusion

For the foregoing reasons, the District Court erred in dismissing this action and the 

case should be remanded for hearing on plaintiffs-appellants Motion for Preliminary 

Injunction and Supplemental Relief and Motion to Substitute Named-Plaintiffs.

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

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Certificate of Service

Ihereby certify that on this 16th day of April, 1992, I served true and corrct copies 

of the foregoing Appellant’s 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.

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