Youngblood v. Board of Public Instruction of Bay County, Florida Reply Brief for Appellants

    NO. 90-4142

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

JEAN CAROLYN YOUNGBLOOD, et al.#
Plaintiffs-Appellants, 

UNITED STATES OF AMERICA,
Plaintiff-Intervenor,

vs.
THE BOARD OF PUBLIC INSTRUCTION 
OF BAY COUNTY, FLORIDA, et al.,

Defendants-Appellees.

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

FLORIDA. PANAMA CITY DIVISION

REPLY BRIEF FOR Appellants

THEODORE R. BOWERS 
P.O. Box 811
101 West 4th Street, Suite B 
Panama City, FL 32402-0811 
(904) 785-0241

KENT SPRIGGS 
Spriggs & Kidder 
324 West College Avenue 
Tallahassee, FL 32301 
(904) 224-8700
NORMAN J. CHACHKIN
DENNIS D. PARKER
99 Hudson Street, 16th Floor
New York, NY 10013
(212) 219-1900

Attorneys for Appellants



Table o f Contents

Table o f  A u t h o r i t i e s....................................................ii
Introduction ...................................................  1
I. THE DECISION OF THE COURT BELOW IMPERMISSIBLY HINDERS THE

ABILITY OF THE APPELLANTS TO ENFORCE VALID ORDERS............ 2
II. IT IS IMPROPER TO REQUIRE THAT THE ISSUE BE LITIGATED 

PRIOR TO DETERMINING IF EXISTING VIOLATIONS SHOULD BE 
REMEDIED BECAUSE A DETERMINATION OF "UNITARY STATUS"
WOULD NOT AFFECT THE ENFORCEABILITY OF CURRENT VIOLATIONS
OF EXISTING ORDERS.............................................. 6

Conclusion 10



Table o f Authorities

Cases
Brown v. Board o f Education o f Topeka, 347 U.S. 483 (1954) ........... 5
Brown v. Board o f Education o f Topeka, 349 U.S. 294 (1955)

("Brown I f ) ...................................................................................................................... 5
Coursen v. A.H. Robins Company Inc.,

764 F . 2d 1329 (9th Cir. 1985) .............................3
Feldspar Trucking Company, Inc. v. Greater Atlanta Shipper’s Association, Inc., 84 9 F.2d 
1389 (11th Cir. 1 9 8 9 ) ..............................................4
Frutiger v. Hamilton Central School District,

928 F . 2d 68 (2d Cir. 1 9 9 1 ) ................................. 4
Hall v. West, 335 F.2d 481 (5th Cir. 1 9 6 4 ) ........................ 5
Northern Indiana Public Service Company v. Carbon County Coal Company,

799 F . 2d 265 (7th Cir. 1 9 8 6 ) ................................. 3
Rodriguez v. Olin Corporation, 780 F.2d 491 (5th Cir. 1985) .........4

ii



NO. 90-4142

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

JEAN CAROLYN YOUNGBLOOD, et al.,
Plaintiffs-Appellants,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor,

vs.
THE BOARD OF PUBLIC INSTRUCTION 
OF BAY COUNTY, FLORIDA, et al.,

Defendants-Appellees.

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

FLORIDA. PANAMA CITY DIVISION

REPLY BRIEF FOR Appellants

- . Introduction
Appellees7 brief contains two related erroneous suppositions 

about the nature of this appeal which enables them to sidestep the 
issues that are now before the court. First, the Appellees 
repeatedly refer to the denial of Appellants' Motion to Restore to 
Hearing Calendar and to Grant Injunction to Enforce Prior Court 
Orders by the court below as a mere scheduling decision which has 
no effect upon the substantive and procedural rights of the 
Appellants. Second, the Appellees suggest that the attainment of 
"unitary status", however that term may ultimately come to be



applied, means that the terms of the January 30, 1970 Order as well 
as the 1988 Consent Order could no longer be enforced by the 
Appellants. For the reasons stated below, both of these 
assumptions are wrong.

I. THE DECISION OF THE COURT BELOW IMPERMISSIBLY HINDERS
THE ABILITY OF THE APPELLANTS TO ENFORCE VALID ORDERS.
Despite the Appellees' contentions, the decision of the court 

below is not merely a scheduling decision but is instead a final 
decision on a motion for an injunction which has profound effects 
on the substantive and procedural rights of the Appellants. Far 
from merely adjourning a hearing, the July 17, 1990 Order states
that the district court would not consider allegations of 
violations of existing orders until a hearing on the broader 
question of unitary status is conducted and that question resolved. 
By doing so, the order introduces a procedural prerequisite for the 
enforcement of prior orders which both imposes an unnecessary 
burden on the Appellants and substantially alters the terms of the 
existing injunctions, particularly the 1988 Order.

Appellees concede that there is no question that the January 
30, 1971 Order and the 1988 Consent Order are valid.1 Appellees

1Appellees disingenuously express disagreement (Brief, p. 10) 
with Appellants' statement that it was the expectation of the 
parties that the purpose of holding a "unitary status" hearing 
prior to considering the questions of specific violations was to 
obviate the need to address the specific violations alleged. It 
would make no sense for the district court to hold such a hearing 
as a prerequisite if the court believed that a determination of 
"unitary status" would have no bearing on the issue of enforcement 
of the orders. On the other hand if, as the history of the case 
suggests, the district court contemplated that a finding of

2



Brief at 8,9.2 In light of the agreement of all the parties that 
the orders are valid, Appellees' characterization of the district 
court's decision as a "scheduling" matter is puzzling because it 
suggests that it is within the discretion of the court to 
substantially change the terms of the enforcement mechanism of 
injunctive orders to the detriment of one of the parties in a way 
that is inconsistent with the express terms of the orders.

The cases cited by the Appellees are not on point and do not 
support the Appellees' contentions that the order of the court 
below was simply an example of judicial housekeeping. Appellants 
are not complaining about the scheduling of a trial date, see Coursen 

v. A.H. Robins Company Inc. , 764 F.2d 1329 (9th Cir. 1985), or the need 

to satisfy speedy trial requirements by hearing criminal cases 
before civil cases, Northern Indiana Public Service Company v. Carbon County Coal

unitary status would make a consideration of the violations moot, 
then appellants would suffer the injuries described in Appellants' 
Brief at 13-20.

2Appellees characterize the sections of Appellants' Brief 
dealing with the vitality of existing court orders and the district 
court's jurisdiction to consider violations of these orders as 
"non-issues". These issues were included because it was unclear up 
until the time of the Appellees' Brief what position the appellees 
held in relation to these questions. This uncertainty was bred in 
large part by the fact that the issue of "unitary status" was 
originally raised by the court below rather than the appellees. 
Appellants do appreciate that the appellees have conceded the 
accuracy of contentions made in the Appellants brief, although it 
is not the position of the Appellants that the Court's jurisdiction 
to enforce injunctions, particularly in the case of the 1988 Order, 
ends with the achievement of "unitary status". Appellee's Brief 8, 
9. Further, Appellants contend that the Appellees' concessions 
about the vitality of the Orders are at odds with the position that 
they are taking now. Infra at 4.

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Company, 799 F.2d 265 (7th Cir. 1986), or the discretion of a trial 

court to determine the order of proof in the course of a trial, 
Rodriguez v. Olin Corporation, 780 F.2d 491 (5th Cir. 1985). Nor are the

Appellants seeking to obtain relief in more than one forum, a fact 
which renders equally inapplicable the cases cited which grant 
district courts discretion to stay proceedings pending actions 
before another agency or court regarding the same matter. See, e.g.

Frutiger v. Hamilton Central School District, 928 F.2d 68 (2d Cir. 1991)3;

Feldspar Trucking Company, Inc. v. Greater Atlanta Shipper’s Association, In c., 84 9 F.2d 

1389 (11th cir. 1989).
Quite simply, Appellants seek to enforce two district court 

orders in the only forum available to them. The order of the court 
below says in effect that Appellants cannot seek to obtain the

interestingly, the court in Frutiger based its decision at least 
in part on the fact that the plaintiffs in that case labelled their 
motion as one for a preliminary injunction only after the court's 
decision denying the motion had been made:

It is worth noting that in the district court, the 
plaintiffs never characterized their application as a 
motion for preliminary injunction, nor did the district 
court treat it as such. . . . Only by retrospectively 
characterizing their motion as one for injunctive relief 
can plaintiffs now argue that the district court's 
decision falls within the class of orders that are 
appealable under §1292 (a)(l). Frutiger, 928 F.2d at 71.

There is no question that Appellants from the outset have regarded 
their motion as an application for injunctive relief, a fact which 
is reflected in the title of the motion. Nothing in the district 
court opinion suggests that the court intended anything less than 
the denial of the injunctive relief sought.

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relief to which the orders entitle them until they leap the newly- 
imposed hurdle of conducting, and presumably prevailing in, a 
"unitary status" hearing.

In light of this, Appellees' argument that "[i]njunctive 
relief has not been denied . . . .  [t]here was no change in the 
status quo" (Appellees' brief at 12) is clearly wrong. The ability 
of the Appellants to seek judicial relief under two existing court 
orders has been altered in a way that prejudices the Appellants' 
rights.4

For this reason as well as the reasons set forth in 
Appellants' brief, we submit that the order below is a final 
decision because it denies Appellants the injunctive relief sought 
below through their request for an immediate hearing to enforce the 
existing orders.5

4In Hall v. West, 335 F.2d 481 (5th Cir. 1964), the Court found 
that there are limits to a district court's discretion in regard to 
the timing of remedies in a school desegregation acrion. In Hall, 
the Court found fault with the district court's pace in resolving 
matters of school desegregation in light of the long history of 
non-compliance with fulfilling the requirements of Brown v. Board o f  
Education o f Topeka, 347 U.S. 483 (1954) and Brown v. Board o f Education o f  
Topeka, 349 U.S. 294 (1955) ("Brown II").

because the decision of the court below is based upon an 
error of law regarding the enforcement of injunctions, Appellants 
contend that review in this Court is plenary. Even if the standard 
of review were abuse of discretion, however, Appellants contend 
that the actions of the court below are such that the relief they 
have requested would be appropriate.

5



II. IT IS IMPROPER TO REQUIRE THAT THE ISSUE BE 
LITIGATED PRIOR TO DETERMINING IF EXISTING VIOLATIONS 
SHOULD BE REMEDIED BECAUSE A DETERMINATION OF "UNITARY 
STATUS" WOULD NOT AFFECT THE ENFORCEABILITY OF CURRENT 
VIOLATIONS OF EXISTING ORDERS.
Appellees7 discussion of "unitary status" does not ultimately 

address the issues raised here on appeal. If, as Appellants 
concede, they have a continuing obligation to comply with the 
existing orders and the Appellees cannot be absolved retroactively 
of prior or continuing non-compliance, then a full scale hearing 
into the guestion of unitary status is irrelevant to the issue of 
current and continuing violations of the orders that are the basis 
of the Appellants7 Motion to Restore the Case to Hearing Calendar 
and to Grant Injunction to Enforce Prior Court Orders. At best, a 
finding that the Appellees have achieved "unitary status" would 
only affect the responsibilities of the Appellees after the 
"unitary status" declaration was made, thereby leaving unanswered 
the question of violations that occurred before a determination of

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unitary status.6 It would still be necessary to decide the issues 
of whether the Appellants are entitled to relief for violations 
occurring prior to the declaration of "unitary status."

As discussed in Appellants' brief, the prejudice to the 
Appellants that would result from such a result emphasizes the fact 
that the court below was in error. Moreover, such an approach 
would not even serve to further the cause of efficiency. It is 
hard to understand how refusing to hold a timely hearing on the 
question of violations without the added step of completing a 
"unitary status" determination would promote efficiency in this 
case. In fact, permitting the decision of the court below to stand 
would be to sanction a requirement that every attempt to enforce an 
injunction in school desegregation cases be preceded by a "unitary 
status" hearing. Such a requirement raises the specter of a 
procedural nightmare that would clog the trial courts rather than 
relieve their administrative burdens.

Equally unpersuasive is Appellees' argument that public policy 
dictates that a "unitary status" hearing be held. The suggestion

6Both Appellants and Appellees seem to agree that Appellants' 
Motion to Restore to Calendar and to Grant Injunction to Enforce 
Prior Court Orders raises issues that might be relevant to the 
issue of unitary status. Appellees' Brief at 22; Appellants Brief 
at 20. This fact, taken along with the agreement of both parties 
that a retroactive finding of "unitary status" would be improper 
means, in essence, that although a hearing on the issues of 
specific violations might be dispositive of the issue of "unitary 
status", a "unitary status" finding could not decide the issue of 
whether relief was warranted for specific violations that occurred 
prior to a finding of "unitary status." That being the case, 
requiring that there be a hearing on "unitary status" prior to 
considering appellants' claim of prior violations is not only 
unfair but also illogical.

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that the Appellees' obligations under the Consent Order should end 
with a determination of "unitary status" because school 
desegregation orders are not intended to be permanent, and because 
of the value of local control is nonsensical in the context of this 
case. The 1988 Order is, by its own terms, not permanent in that 
it specifies a time period of not less than ten years. Further, 
the time period specified was not the result of an overbearing 
federal judiciary running roughshod over the interests of a local 
governmental body: the order and its terms were negotiated by the 
parties themselves and the parties specifically chose to set a 
definite period during which the order could be enforced rather 
than using the achievement of "unitary status" as the time when the 
injunction would dissolve.

When this is considered along with the facts that the 
Appellees have never moved to modify either the 1970 Order or the 
1988 Order, and that they failed to make a motion to be declared 
"unitary" until the matter was raised by the district court, it 
appears that the Appellees' sudden enthusiasm for a full-scale 
unitary status hearing is really an opportunistic attempt to 
relieve themselves of obligations under orders into which they had 
willingly entered and under which they had previously operated 
without complaint.

8



Conclusion
For the foregoing reasons and the reasons set forth in 

Appellants' Brief, Appellants respectfully request that this case 
be remanded for hearing on plaintiffs-Appellants' Motion to Restore 
the Case to Hearing Calendar and to Grant Injunction to Enforce 
Prior Orders.

Respectfully submitted

THEODORE R. BOWERS 
P.0. BOX 811
101 West 4th Street, Suite B 
Panama City, FL 32402-0811 
(904) 785-0241

KENT SPRIGGS 
Spriggs & Kidder 
324 West College Avenue 
Tallahassee, FL 32301 
(904) 224-8700
NORMAN J. CHACHKIN
DENNIS D. PARKER
99 Hudson Street, 16th Floor
New York, NY 10013
(212) 219-1900

Attorneys for Appellants

9



1 CERTIFICATE OF SERVICE
I hereby certify that on this 31st day of October, 1991, I 

served true and correct copies of the foregoing Appellant's Reply 
Brief on the persons named below by sending copies of the 
Memorandum by U.S. Mail, prepaid to KENNETH SUKHIA, U.S. ATTORNEY, 
U.S. Courthouse, Rm 307, 100 North Palofox, Pensacola, FL 32501; 
David K. Flynn and Thomas E. Chandler, U.S. Department of Justice, 
Civil Rights Division, Appellate Section, P.O. Box 66078, 
Washington, D.C. 20035; D. LLOYD MONROE, IV, Fuller, Johnson & 
Farrell, P.A., Post Office Box 1739, Tallahassee, FL 32302; and 
FRANKLIN R. HARRISON, Sale, Smoak, Harrison, Sale, McCloy &
Thompson, Magnolia Avenue at Third Court, Post Office Drawer 1579, 
Panama City, FL 32402.

Dennis D. Parker

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