Mills v. Polk County, FL School Board Reply Brief for Appellants

    NO. 92-2832

HERMAN HENRY MILLS, JR., et al.,

Plaintiffs-Appellants

and

UNITED STATES OF AMERICA,
Plaintiff-Intervenor-Appellee

vs.
THE SCHOOL BOARD OF POLK COUNTY, FLORIDA, et al. ,

Defendants-Appellees

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

Appeal from the United States District Court 
for the Middle District of Florida, Tampa Division

REPLY BRIEF FOR APPELLANTS

NORRIS D. WOOLFORK, III 
Suite 2
1325 West Colonial Drive 
Orlando, Florida 32804 
(407) 872-1205

LARRY R. JACKSON 
Suite 220-B 
101 West Main Street 
P. O. Box 3668
Lakeland, Florida 33602-3668 
(813) 682-3111

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
99 Hudson Street, 16th floor 
New York, New York 10013 
(212) 219-1900

Attorneys for Appellants



Table of Contents
Page

Statement of the Issues ...................................

ARGUMENT ..................................................
A. The Board's elementary school rezoning plan 

for the Bartow area fails to meet applicable 
legal requirements because it is less effec­
tive than available alternatives and creates 
schools which, taking all of the circumstances 
into account, are "racially identifiable" .

B. The district court was not authorized by law
or by its own order to "delay" or to modify 
the consent order over the objections of 
signatory parties ...............................

Conclusion ................................................

Table of Authorities

Cases:

Harrington v. Colquitt County Board of Education,
460 F .2d 193 (5th Cir.), cert, denied, 409 U.S.
915 (1972)............................................ 6, 7

Holmes v. Continental Can Company, 706 F.2d 1144 (11th
Cir. 1 9 8 3 ) ............................................  11

Jacksonville Branch, NAACP v. Duval County School Board,
883 F . 2d 945 (11th Cir. 1989) ......................  5n

Lee v. Macon County Board of Education, 970 F.2d 767
(11th Cir. 1 9 9 2 ) .....................................  4, 5, 6

Little Rock School District v. Pulaski County Special
School District, 921 F.2d 1371 (8th Cir. 1990) . . .  12

Rufo v. Inmates of the Suffolk County Jail, ___ U.S. ___,
116 L. Ed. 2d 867 (1992)............................  2, 8, 9

United States v. Lowndes County Board of Education,
878 F . 2d 1301 (11th Cir. 1 9 8 9 ) ......................  5n

Wright v. Council of City of Emporia, 407 U.S. 451 (1972) 3

l



NO. 92-2832

HERMAN HENRY MILLS, JR., et al. ,
Plaintiffs-Appellants,

and

UNITED STATES OF AMERICA,
Plaintiff-Intervenor-Appellee,

vs.

THE SCHOOL BOARD OF POLK COUNTY, FLORIDA, et al. ,
Defendants-Appellees.

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

Appeal from the United States District Court 
for the Middle District of Florida, Tampa Division

REPLY BRIEF FOR APPELLANTS

Statement of the Issues

This appeal presents two legal issues:

1. Did the district court err in approving the plan of 

elementary school rezoning for the Bartow area adopted by the 

School Board of Polk County, which creates racially identifiable 

schools through systematic overcrowding of some facilities and 

under-utilization of other buildings?

2. Did the district court err in modifying a consent order 

over the objections of two signatory parties in the absence of the



showing of changed circumstances required by Rufo v. Inmates o f  the Suffolk 

County Jail, ___ U.S. ___, 116 L. Ed. 2d 867 (1992)?

ARGUMENT

There is little contained in the School Board's brief which 

requires a response. The common thread of its two arguments 

appears to be the notion that the school district fulfilled its 

federal constitutional responsibilities when it entered into the

Consent Order —  and that whether or not the district carries out 

the terms of the Consent Order is of no consequence, absent the bad 

faith commission of an independent, intentionally discriminatory 

constitutional violation. There simply is no decisional support 

for this proposition, or for any of the School Board's other

arguments.

A. The Board's elementary school rezoning plan 
for the Bartow area fails to meet applicable 
legal requirements because it is less effec­
tive than available alternatives and creates 
schools which, taking all of the circumstances 
into account, are "racially identifiable."

The Board argues that the district court properly accepted its 

elementary school zoning plan for the Bartow area because 

plaintiffs failed to allege "that the School Board was motivated to 

perpetuate the dual system or that the plan in fact perpetuated the

2



The first prong of this argument is legallyformer dual system."1 
incorrect; the second is factually wrong.

As we summarized in our opening brief (at pp. 21-24), in 

school desegregation cases the legal standard by which remedial 

plans are judged is effect, not purpose. "We have focused upon the 

effect —  not the purpose or motivation —  of a school board's 

action in determining whether it is a permissible method of 

dismantling a dual system. The existence of a permissible purpose 

cannot sustain an action that has an impermissible effect." Wright

v. Council o f City o f Em poria, 407 U.S. 451, 462 (1972). Thus, plaintiffs

were not reguired to allege or prove bad faith.2 Rather, the legal 

sufficiency of a pupil assignment plan depends upon its efficacy, 

compared to that of feasible alternatives.

In this case, the School Board does not dispute that 

alternative zoning configurations devised by the school system 

staff or a citizens' advisory committee were feasible and would 

have resulted in significantly greater balance among elementary 

school enrollments in the Bartow area. Instead, the Board argues 

that plaintiffs did not establish or assert below that the Board's 

Bartow zoning plan would "perpetuate[] the dual system." The best 

that can be said for this contention is that it exalts semantics

1Brief for Appellee at 5. See also id. at 6 (arguing that because
zoning plan was developed pursuant to requirements of Consent 
Order, it was not adopted for a discriminatory purpose).

2See Brief for Appellee, at 8.
3



above substance. The textual paragraph and footnote summarizing 

the position of plaintiffs and the United States3 which appears in 

the Joint Explanatory Report of Disputed Issues phrases the 

objections of these parties to the Board's plan in the precise 

terms enunciated by the relevant Supreme Court decisions.4 To 

suggest that no proper objection was raised to the Board's plan is 

simply disingenuous.

The School Board's brief also asserts that its plan would not 

create "racially identifiable" schools in the Bartow area and was 

therefore appropriately approved by the district court.5 The Board 

relies entirely upon the recent decision in Lee v. Macon County Board o f

Education, 970 F.2d 767 (11th Cir. 1992), affirming a district

court's exercise of discretion to refuse to permit Macon County, 

Alabama to close its only high school that did not have a virtually 

all-black enrollment. Because this Court characterized the Macon 

County school at issue as "the county's only nonracially 

identifiable school,"6 despite its 57%-black student enrollment, 

the Polk County School Board argues that the three 48%-black Bartow

Although the United States has determined not to participate 
in this appeal, it has not modified its position regarding the 
adequacy of the Board's desegregation plan. See infra at la-2a 
(letter from Assistant Attorney General Dunne to counsel for 
plaintiffs).

4See R1 - 7/29/92 Joint Explanatory Report of Disputed Issues
- 3; Appendix to Brief for Appellants, at 66a.

5See Brief for Appellee, at 9.

6970 F . 2d at 768.
4



elementary schools projected under the plan approved below could 

not conceivably be regarded as "racially identifiable."

It is apparent, however, that the Lee Court's characterization
of Notasulga High School as "nonracially identifiable" turns not

upon the specific enrollment proportions involved7 but upon a
comparison of the school's enrollment with that of other facilities

in the county, and upon an appreciation of the history of

desegregation efforts in the school system:8

Now de jure segregation has ended but still there are three 
racially identifiable black high schools, each with a 
white student population of less than 2%. In the twenty 
year effort to eliminate segregated schools, the Deborah 
Cannon Wolfe High School, the South Macon High School, 
and Tuskegee Institute High School have lost practically 
all of their white students either through demographic 
change or "white flight" to private schools. At the 
other extreme, there is Notasulga High School, which is 
not racially identifiable, has 57% black students and 60% 
black faculty, and can be rightly said to have 
accomplished the goals of the 1963 desegregation order.
The Board seeks to eliminate the only integrated school 
in the county and the area and to send black and white 
students from Notasulga to a high school where the black 
student population would exceed 94% after their 
arrival.9

7See Lee, 970 F.2d at 774 n.23. See a lso, e.g., Jacksonville Branch, 
NAACP v. Duval County School Board, 883 F.2d 945, 949, 952 (11th Cir.
1989)(noting increase in majority-black schools as well as in 
schools with enrollments more than 95% black) ; United States v. Lowndes 
County Board o f Education, 878 F.2d 1301 (11th Cir. 1989) (qualitative as 
well as quantitative elements of concept of "racial 
identifiability").

8Indeed, the Lee panel explicitly cautioned that "[w]e decide 
this case on its facts and its history and conclude that the 
district court was correct in not approving the consolidation." 
970 F.2d at 773.

9 Lee v. Macon County Board o f Education, 970 F.2d at 772-73.

5



In contrast to the effect of the actions proposed by the Macon 

County Board of Education, plaintiffs here seek to require the Polk 

County School Board to implement a plan under which no school in 

the area will be less than 18% black or more than 38% black, in 

place of a plan expected to create three 48%-black schools and 

three schools under 15% black.10 The Macon County Board's plan 

involved no positive improvements, and certainly none of this 

magnitude: "[T]he closing of the high school at Notasulga, the

only nonracially identifiable high school in Macon County, cannot 
be justified by the slight change that it may bring to the racial 

mix of the consolidated high school."11 Thus, Lee hardly compels
affirmance here.

The facts of this case are different from those in Lee and are 
far closer to those of Harrington v. Colquitt County Board o f Education, 4 60 

F . 2d 193 (5th Cir.), cert, denied, 409 U.S. 915 (1972). There, the

predecessor Fifth Circuit reversed a district court's approval of 

a plan under which five elementary schools within the City of 

Moultrie were from 47% to 57% black, while three elementary schools 

outside the city were from 13% to 18% black and two other 

elementary schools outside the municipal boundary were less than 5% 

minority. Intervenors in the Harrington case had devised a feasible
plan that would have resulted in all ten schools having enrollments

10See table in Brief for Appellants, at 10.

11970 F . 2d at 776.
6



between 30% to 36% black, 460 F.2d at 194, 195 n.2. The Court said

that
[i]n light of the history of segregation in Colquitt 
County, the existence of an alternative plan that 
eliminates the single race characteristic of the five 
predominantly white elementary schools outside Moultrie, 
and the minimal burden adoption of this plan would 
entail, a "close scrutiny" of the school board's plan 
reveals that it does not overcome the presumption against 
the "continued existence of some schools that are all or 
predominately of one race."

Harrington, 460 F.2d at 195-96.

It was precisely the same factors to which we adverted in our 

opening brief (at 19 [footnotes omitted]):
In 1991-92, enrollment at the Gibbons Street 

Elementary School —  the historically black school in 
Bartow —  was 61% black, and at Stephens Elementary 
school in Bartow was 49% black, while three elementary 
schools outside the Bartow municipality (Highland City,
Eagle Lake and Alturas) were 9%, 8% and 15% minority,
respectively . . . .  The School Board ultimately 
adopted, and the court below approved, a plan that was 
projected to reduce Gibbons Street's minority enrollment 
to 33% but also to raise the black enrollment at three 
other elementary schools within Bartow to 48% each, while 
leaving the three heavily white schools outside the city 
with enrollments that were less than 15% minority. Under 
this plan, each of the nearly half-black schools in 
Bartow would be filled to less than 80% of its permanent 
structural capacity, while the three heavily white 
schools would each be over capacity . . . .

The School Board makes no response of any kind concerning the

obvious manipulation of facility utilization that produces these

"black schools" and "white schools" and focuses solely upon the

48%-black schools within Bartow, ignoring the adjacent heavily

7



white facilities. Its claim that its plan does not produce 

racially identifiable schools in the Bartow area thus relies upon 

an unrealistically narrow and legally flawed assessment of the 

results projected under its plan.

B. The district court was not authorized 
by law or by its own order to "delay" 
or to modify the consent order over 
the objections of signatory parties.

The School Board's tortuous arguments (1) that the district 

court's order postponing the implementation of new restrictions on 

student transfers "did not change or negate" the Consent Order but 

merely "deferred its implementation";12 or (2) that the district 

court's action can be ratified because the transfer process 

involved a "minor," "extraneous" matter within the meaning of Rufo 

v. Inmates o f the Suffolk County Jail, ___ U.S. ___, ___  n.7, 116 L. Ed. 2d

867, 886 n.7 (1992),13 are entirely lacking in merit unless the

logic described in Alice in Wonderland governs this case. The 

parties carefully negotiated the precise terms of the Consent 

Order, including the timing of the various changes in school 

district operations that it requires. Altering the schedule for 

implementation of its provisions is undoubtedly a change to the 

parties' agreement memorialized in the Consent Order. Further, as

12Brief for Appellee, at 12.
13Brief for Appellee, at 14.

8



in the district court plaintiffswe noted in our opening brief,14 
and the United States repeatedly identified the easy availability 

of transfers as a significant cause of the failure of earlier 

desegregation plans in Polk County. The Consent Order contains 
extensive and detailed provisions regarding student transfers;15 

the subject can hardly be considered "minor" or "extraneous" in 

light of this focus.

The Board also makes the astonishing assertion16 that the 

Consent Order into which it entered is not a contract which 
plaintiffs are entitled to enforce according to its terms (absent 

"a significant change in facts or law," R ufo, ___ U.S. at ___, 116

L. Ed. 2d at 892) :
Albeit there is authority to support the practice, 
Plaintiffs should not be allowed, with the aid of the 
courts, to force institutional defendants to enter 
consent agreements and then, after the agreements are
reduced to judgment, demand strict compliance --- on the
basis that the Orders are contracts --- until the
plaintiffs see fit to petition "for further relief."

The Board does not explain how it was "forced" to enter into the

Consent Order in this case, nor why the Consent Order is not an

enforceable contract. But the Supreme Court recognized as much in

Rufo, ___ U.S. at ___, 116 L. Ed. 2d at 883:

A consent decree no doubt embodies an agreement of the 
parties and thus in some respects is contractual in

14See Brief for Appellants, at 3-4.
15R1 - 5/7/92 Proposed Order - 29-36; Appendix to Brief for

Appellants, at 32a-39a.

16Brief for Appellee, at 13.
9



nature. But it is an agreement that the parties desire 
and expect will be reflected in and be enforceable as a 
judicial decree that is subject to the rules generally 
applicable to other judgments and decrees.

Thus, as we noted above, absent a significant change in facts or

law —  which the School Board did not claim had occurred

plaintiffs and the United States were entitled to enforce the

Consent Order in this case.

The Board stands on no firmer ground in suggesting that when 

it approved the Consent Order, the district court "reserved 

jurisdiction to do exactly what he did vis—a—vis the out of zone 

transfers."17 It is true that paragraph 1 of the July 8, 1992

Order adopts the proposed Consent Order "as an order of this Court" 

explicitly "[s]ubject to the terms of paragraphs 2 through 4 

below."18 Nothing in those paragraphs, however, amounts to the 

purported "reservation" of authority described in the Board's 

brief. While paragraph 3 establishes a procedure for submission of 

disputes under the Consent Order to the Court, the Order itself 

explicitly contemplates that the district court will be called upon 

to resolve disagreement in numerous areas.19 In this context, 

paragraph 3 can hardly be read as creating in the district court 

authority to modify other settled terms of the Consent Order any time

17Brief for Appellee, at 14.
18See R1 - 7/9/92 Order -2; Appendix to Brief for Appellant, 

at 59a.
19See, e.g., R1 - 5/7/92 Proposed Order - 36-37 f II.B. ; Appendix 

to Brief for Appellants at 39a-40a (construction).
10



that one party or another changes its mind about the bargain struck 

in the decree. Paragraph 4, on the other hand, makes a specific 

change, to which all parties consented, by striking two words from 

a single sentence of the proposed Consent Order.

The language to which the School Board's brief refers, 

concerning the district court's intention to assure "that no party 
makes unreasonable demands or erects unreasonable barriers, which 

serve only to prolong dispute," is contained in a separate 

paragraph that is not a part of paragraph 4.20 21 22 Even if it were, 

we suggest that in the context of the Consent Order and the other 

portions of the July 9 Order, the reference can best be understood 

as limited to those future disputes whose resolution the Consent 

Order explicitly contemplated would be sought from the district 

court. Certainly we can assure this Court that, were there even 

the barest support for interpreting the language on which the Board 

now focuses so as to establish a general reservation of authority 

in the district court to modify any term of the Consent Order at 

will, we would have appealed that ruling. "Courts are not

permitted to modify settlement terms or in any manner to rewrite 

the agreement reached by the parties." Holmes v. Continental Can

Company, 706 F.2d 1144, 1160 (11th Cir. 1983) and cases cited;

20See R1 - 7/9/92 Order - 4; Appendix to Brief for Appellants, 
at 61a.

21See Brief for Appellee, at 13-14.
22See R1 - 7/9/92 Order - 4; Appendix to Brief for Appellants, 

at 61a.
11



accord, Little Rock School District v. Pulaski County Special School D istrict, 921 F. 2d 

1371, 1388-89 (8th Cir. 1990) and cases cited.

Conclusion

For the foregoing reasons, as well as for the reasons set out 

in our opening brief, the judgment below should be reversed and the 

case remanded for further proceedings consistent with the guidance 

provided by this Court.

Respectfully submitted,

101 West Main Street

NORRIS D. WOOLFORK, III 
Suite 2
1325 West Colonial Drive 
Orlando, Florida 32804 
(407) 872-1205

P. 0. BOX 3668
Lakeland, Florida 33602-3668 
(813) 682-3111

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
99 Hudson Street, 16th floor 
New York, New York 10013 
(212) 219-1900

Attorneys for Appellants

12



certificate of Service
I hereby certify that on this 17th day of December, 1992, I 

served two (2) copies of the foregoing Reply Brief for Appellants 
upon the following counsel for the appellees, by prepaid Federal 
Express next-day delivery service, addressed as follows:

C. A. Boswell, Jr., Esq. 
Polk County School Board 
1915 South Floral Avenue 
Bartow, Florida 33830

David L. Flynn, Esq.
Appellate Section, Civil Rights 

Division
U.S. Department of Justice 
10th & Pennsylvania Avenue, 

N.W., Room 5740 
Washington, D.C. 20004

Norman J.Chaehkin

13



A P P E N D I X



Civil Rights Division

U.S. Department o f Justice

Office o f  the Assistant A ttorney General Washington, D.C. 20530

December 7, 1992

Norman J. Chachkin, Esquire 
99 Hudson Street, Suite 1600 
New York, New York 10013-2897

Re: Mills v. Polk County School Board,
Eleventh Circuit No. 92-2832______

Dear Mr. Chachkin:

This is in response to your recent letter requesting me to 
reverse the United States7 decision not to participate in this 
appeal. Because of the extraordinary intensity of your view that 
our decision not to participate is wrong and deleterious to 
students7 welfare, I have personally reviewed this matter.

I am of the view that our original judgment is proper. With 
deference to your contrary opinion, we do not believe that an 
appeal from the district court's August 17, 1992, order is likely 
to advance the desegregation process in Polk County for the 1992- 
1993 school year. Our decision not to appeal the district 
court's order was not based upon the substance of the order, but 
rather its timing and limited duration. The district court's 
order was issued on the eve of the 1992-1993 school year and is 
effective for that year only. Rather than pursue an appeal that 
as a practical matter will not result in any change in the 
desegregation plan for the current school year, we have chosen 
instead to devote our resources to ensuring that the district 
court orders an effective, long-term desegregation plan beginning 
with the 1993-1994 school year. Because we have chosen not to 
appeal, we are precluded from participating in your appeal and 
arguing that the district court's order should be reversed.

Our decision not to appeal should therefore not be 
interpreted as abandonment of our mutual goal to fully 
desegregate the Polk County school system as soon as possible. 
Rather, we will continue to work with your office to ensure that 
the district court enters a fully effective desegregation plan 
for the 1993-1994 school year and thereafter.

la



2
I hope that you and the Civil Rights Division will continue 

to enjoy our long and fruitful collaboration in this and other 
cases.

Sincerely,

John R. Dunne 
fsistant Attorney General 
Civil Rights Division

2a