Manning v. School Board of Hillsborough County, Florida Reply Brief

    No. 00-1871

In  The

(tort nf tljr Initrft States

Andrew L. Manning, et al.,
Petitioners,

v.

The School Board of Hillsborough County, Florida 
(formerly Board of Public Instruction of 

Hillsborough County, Florida), et al.,
Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals for the Eleventh Circuit

REPLY BRIEF

Elaine R. Jones 
Director-Counsel

Norman J. Chachbon 
Jacqueline A. Berrien 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2259

Warren Hope Dawson 
Dawson Law Office 
1467 Tampa Park Plaza 
Tampa, FL 33605 
(813) 221-1800

Victor A. Bolden 
(Counsel o f Record)
Jesse M. Furman
Kenneth D. Heath
Wiggin & Dana
One Century Tower
265 Church Street
New Haven, CT 06508-1832
(203) 498-4400

Counsel fo r Petitioners



1

TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................... ii

ARGUMENT...............................................................................1

l. THIS COURT SHOULD REVIEW THE
ELEVENTH CIRCUIT’S HOLDING ON 
“SUBSTANTIAL CAUSE” ......................................... 1

n. RESPONDENTS’ FAILURE TO ASSURE GOOD- 
FAITH COMPLIANCE IS PROPERLY BEFORE 
THIS COURT................................................................ 5

m. THIS COURT SHOULD REVIEW THE
ELEVENTH CIRCUIT’S DEPARTURE FROM THE 
“CLEARLY ERRONEOUS” STANDARD................7

CONCLUSION...........................................................................9



ii

TABLE OF AUTHORITIES

Cases Page

Board ofEduc. v. Dowell, 498 U.S. 237 (1991)..................... 5

Brown v. Board o f Educ., 978 F.2d 585 (10th Cir.
1992) .....................................................................................2, 5

DeLeon v. Struck, 234 F.3d 84 (2d Cir. 2000)........................ 6

Dowell v. Board o f Educ., 8 F.3d 1501 (10th Cir.
1993) .................................................................................. 5 ,7

Freeman v. Pitts, 503 U.S. 467 (1992).................................. 4, 5

Grassia v. Scully, 892 F.2d 16 (2d Cir. 1989).........................6

Jenkins v. Missouri, 122 F.3d 688 (8th Cir. 1997)....................2

Keyes v. School District No. 1, Denver, Colorado,
413 U.S. 189 (1973)................................................................2

Lockett v. Board o f Educ., 92 F.3d 1092 (11th Cir.
1996) ............................................................................passim

Lockett v. Board o f Educ., I l l  F.3d 839 (11th Cir.
1997) ............................................................................passim

Rainbow Tours, Inc. v. Hawaii Joint Council o f 
Teamsters, 704 F.2d 1443 (9th Cir. 1983).............................3



iii

TABLE OF AUTHORITIES -  Continued
Page

Royal Crown Co. v. Coca-Cola Co., 887 F.2d 1480 
(11th Cir. 1989)......................................................................3

Statues and Rules

28 U.S.C. § 636......................................................................... 8



1

PETITIONERS’ REPLY BRIEF
Rather than engage Petitioners on the questions 

presented, Respondents attempt to avoid those questions by 
mischaracterizing the decision below. Instead of addressing 
the clear, unavoidable conflict between the Eleventh Circuit’s 
“substantial cause” standard for identifying vestiges of past 
discrimination and decisions of this Court and other Courts of 
Appeals, Respondents seek to obscure this core holding by 
characterizing it as dictum. Similarly, Respondents argue 
that Petitioners have waived any claim that the School Board 
must show that it will not revert to its discriminatory 
practices in the future, despite the fact that their failure of 
proof was an explicit ground of the District Court’s decision 
and before the Eleventh Circuit. Finally, Respondents 
dismiss the third question presented as also concerned only 
with dictum, even though the decision below clearly adopts a 
different standard of review for a District Court’s factual 
findings where the case has been referred to a Magistrate 
Judge. By failing to confront the issues directly, 
Respondents concede that they have no substantive response 
to Petitioners’ representation in the petition: that the 
questions presented involve clear error, or conflict among the 
Courts of Appeals, and are worthy of this Court’s review.

I. THIS COURT SHOULD REVIEW THE
ELEVENTH CIRCUIT’S HOLDING ON
“SUBSTANTIAL CAUSE.”
Respondents refuse to acknowledge that the Eleventh 

Circuit’s holding in this case relies on the novel “substantial 
cause” standard. Instead, Respondents insist that the decision 
below rests entirely on the District Court’s alleged misuse of 
one word -  that is, when the District Court spoke of 
Respondents’ obligation to “desegregate to the maximum 
extent practicable,” it misstated the applicable legal standard, 
which requires Respondents only to “desegregate to the 
extent practicable.” Opp. at 12-13; see Pet. App. at 32a. 
Compare Lockett v. Board o f Educ., 92 F.3d 1092, 1101



2

(11th Cir. 1996) [hereinafter Lockett I\ (“maximum extent 
practicable”), with Lockett v. Board o f Educ., I l l  F.3d 839, 
842 (11th Cir. 1997) [hereinafter Lockett IT] (“extent 
practicable”). According to Respondents, correcting the 
District Court’s use of Lockett E s “incorrect legal standard” 
and the resulting “taint[] and infection]” of its factual 
findings was the only holding of the Eleventh Circuit; all else 
is “dicta.” Opp. at 14.

A fair reading of the decision below, however, reveals 
that the Eleventh Circuit’s “substantial cause” standard was 
essential to its holding and not merely dictum. As set forth in 
the petition, settled precedents dictate that, given a history of 
de jure  segregation, existing racial imbalances presumptively 
violate the Equal Protection Clause. Pet. at 9 (citing Keyes v. 
School Dist. No. 1, Denver, Colorado, 413 U.S. 189, 209 
(1973)). A school board can only overcome the presumption 
by showing that the imbalances are not traceable at all to past 
discrimination. Brown v. Board o f  Educ., 978 F.2d 585, 591 
(10th Cir. 1992) (requiring proof that imbalance is “only a 
product of demographic changes outside the school district’s 
control”); Jenkins v. Missouri, 122 F.3d 688, 593 (8th Cir. 
1997) (“[PJlaintiffs in a school desegregation case are not 
required to prove ‘cause’ in the sense of ‘non-attenuation.’”) 
(quoting Keyes, 413 U.S. at 211 n.17).

Had it followed these precedents, the Eleventh Circuit 
would have had no choice but to affirm the District Court’s 
ruling, given that court’s unambiguous factual finding that 
Respondents’ evidence -  demographic and otherwise -  failed 
to prove that existing racial imbalances in Hillsborough 
County are beyond their control. Pet. App. at 46a-48a, 77a- 
130a. To reject the District Court’s factual findings, 
therefore, the Eleventh Circuit had to do exactly what it did: 
adopt a new legal standard, “substantial cause,” that required 
only a minimal showing by Respondents. See Pet. App. at 
35a (“Where a defendant school board shows that 
demographic shifts are a substantial cause of the racial



3

imbalances, the defendant has overcome the presumption of 
de jure segregation.”). With this holding, the Eleventh 
Circuit effectively shifted the burden of proof to Petitioners: 
“[Petitioners] were required to show that the demographic 
shifts were the result of the past desegregative practices or 
some other discriminatory conduct.” Pet. App. at 36a.

In an effort to avoid the patent conflict between this 
holding and the holdings of the Eighth and Tenth Circuits, 
Respondents attempt to characterize the ruling below as 
merely a presumptive framework that did not alter 
Respondents’ overall burden of proof on causation. Opp. at 
15. This summary, however, obscures the reality of the 
Eleventh Circuit’s decision. In the Eighth and Tenth 
Circuits, and even under the plain text of Lockett II, a school 
board must show that existing racial imbalances “are not the 
result of present or past discrimination on its part.” I l l  F.3d 
at 843. Under the Eleventh Circuit’s new reading of Lockett 
II, however, a school board can escape responsibility if  it can 
point to demographics as a “substantial cause” of current 
imbalances, even if other factors originating with the board’s 
past segregative practices are concurrent causes of the 
imbalances.1 This holding indisputably shifts the burden of 
proof to desegregation plaintiffs, even in districts with 
histories of segregation, a marked shift from the approach of 
other Courts of Appeals that warrants review by this Court.

“Substantial cause” has an established legal meaning and, should the 
decision below remain in effect, it will undoubtedly inform future 
desegregation cases in the Eleventh Circuit. “[Substantial cause does not 
mean sole or predominant cause, but simply a materially contributing 
factor.” Rainbow Tours, Inc. v. Hawaii Joint Council o f Teamsters, 704 
F.2d 1443, 1448 (9th Cir. 1983); Royal Crown Co. v. Coca-Cola Co., 887 
F.2d 1480, 1486 (11th Cir. 1989) (holding that plaintiff need show only 
that defendant’s conduct was “a substantial cause,” not the sole cause, of 
its harm). Thus, all desegregation defendants in the Eleventh Circuit -  
but nowhere else -  will be able to seek and obtain unitary status even 
where other factors tied to past segregative practices are also substantial 
or even predominant causes of current racial imbalances.



4

Respondents’ focus on the supposed disconnect 
between Lockett II  and the District Court’s use of Lockett F s 
“maximum practicability” language only obscures the real 
issue, for a fair reading of Lockett I I  reveals that it could not 
have been the basis for the decision below. To the extent that 
Lockett II  embodies a more lenient practicability standard 
than Lockett / -  and Petitioners dispute that it does2 -  
practicability standards serve only to delimit the extent to 
which a school district must go to remedy de jure 
segregation. Here, the District Court expressly followed 
established precedent and did not hold Respondents 
responsible for “racial imbalances unrelated to de jure 
segregation.” Pet. App. at 79a. As the District Court noted, 
however, the issue before it was not one of practicability, but 
causation itself -  whether Hillsborough County’s imbalances 
were vestiges of past discrimination, or created by factors 
beyond Respondents’ control. Pet. App. at 52a (“Who has 
made the determination that [Respondents] did not cause the 
imbalances?”).

Any distinction between Lockett I  and Lockett II  as to 
practicability is irrelevant to this question. The “substantial 
cause” standard, however, as applied in this case and as it 
will be applied throughout the Eleventh Circuit, dramatically 
reduces the burden on desegregation defendants, departs from 
settled precedent, and warrants review by this Court. * I

2 Contrary to Respondents’ assertions and the Eleventh Circuit’s reading 
of the District Court’s ruling, the District Court did not rely upon Lockett
I  for invalid principles of law. Rather, the District Court merely cited 
Lockett I  for settled principles of law set forth in the precedents of this 
Court. For example, in determining that Respondents had not proved that 
current imbalances in Hillsborough County were unrelated to past de jure 
segregation, the District Court cited Lockett I  for the unassailable 
proposition that it must consider whether: (1) current imbalances are 
proximally connected to past constitutional violations; (2) Respondents 
had complied with the consent order; and (3) Respondents had 
demonstrated good faith. Pet. App. at 53a (citing Lockett /, 92 F.3d at 
1097) (quoting Freeman v. Pitts, 503 U.S. 467, 494 (1992)).



5

II. RESPONDENTS’ FAILURE TO ASSURE
GOOD-FAITH COMPLIANCE IS PROPERLY
BEFORE THIS COURT.
With regard to the second question presented. 

Respondents do not contest the unassailable principle that 
proof of a school district’s good faith requires a showing that 
is both retrospective, that a district has complied with the 
Equal Protection Clause and with court orders, and 
prospective, that a district is “unlikely. . .  to return to its 
former ways.” Board o f Educ. v. Dowell, 498 U.S. 237, 247 
(1991) see also Freeman, 503 U.S. at 491-92 (holding that 
district must demonstrate “its commitment to a course of 
action”); Opp. at 24-26. Moreover, apart from an 
unsupported and conclusory assertion that “a l l . . . Circuit 
Courts of Appeal” look to past compliance as evidence of 
good faith, Respondents do not deny that the Eleventh 
Circuit’s ruling is in clear conflict with the Tenth Circuit’s 
holding in Dowell that requires courts to examine “specific 
policies, decisions, and courses of action that extend into the 
future.” Dowell v. Board o f Educ., 8 F.3d 1501, 1512 (10th 
Cir. 1993) (quoting Brown, 978 F.2d at 592) (emphasis 
added). Nor do Respondents point to any proof of such 
future plans in the record -  conceding that the District Court 
was correct when it held that Respondents had failed to meet 
their burden of proof. Pet. App. at 54a.

Instead, Respondents complain that Petitioners cannot 
raise this point now because they did not challenge the 
Magistrate Judge’s report, which looked only at 
Respondents’ past compliance, Opp. at 25, and that, in any 
event, the District Court’s holding was based entirely on 
Respondents’ past noncompliance with its orders. Therefore, 
according to Respondents, the Eleventh Circuit was right to 
reverse once it determined that Respondents had been in 
compliance. Id.

Neither of these arguments has merit. The text of the 
District Court’s December 4, 1998 opinion made clear that



6

Respondents’ past compliance and future course of action 
were both at issue: “The good faith requirement assures
parents, students, and the public that they will be protected 
against further injuries or stigma, by making it unlikely that 
the school district would return to its former ways.” Pet. 
App. 53a (internal quotations marks and citation omitted). 
The District Court went on to hold that “[a]n integral part of 
this proof will be documentation of strategic planning 
Defendants have engaged in to ensure that discrimination 
does not occur in the future .” Id. at 54a (emphasis added). 
Plainly, the District Court properly examined both the 
retrospective and prospective elements of good faith in 
denying Respondents unitary status. That Petitioners did not 
raise prospective good faith in their objections to the 
Magistrate Judge’s report is irrelevant in light of the District 
Court’s consideration of the issue. See Grassia v. Scully, 892 
F.2d 16, 19 (2d Cir. 1989) (“Even if neither party objects to 
the magistrate's recommendation, the district court is not 
bound by the recommendation of the magistrate.”); see also 
DeLeon v. Struck, 234 F.3d 84, 87 (2d Cir. 2000) (“[I]f in the 
absence of any party’s objection the district court undertakes 
de novo review of a magistrate judge’s report, there is no 
danger that an appellant will raise issues that were never 
considered by the district court.”).

Moreover, and contrary to Respondents’ assertions, 
Petitioners did not abandon this issue in defense of the 
District Court’s ruling before the Eleventh Circuit. See Feb. 
12, 2000 Brief of Plaintiffs-Appellees at 47 (noting that 
Respondents did not meet the standards set forth by the Tenth 
Circuit in Dowell, where the school board “not only had 
demonstrated a good-faith compliance in the past, but also 
had taken affirmative steps to ensure as much desegregation 
as practical in the future”). That the Eleventh Circuit 
improperly ignored Respondents’ failure to provide sufficient 
evidence of future compliance does not thereby preclude 
Petitioners from raising this question now -  if  that were the 
case, appellate courts could shield their decisions from



7

further review simply by declining to address those bases of 
the trial court’s rulings they find inconvenient.

Finally, there can be no doubt that the Eleventh 
Circuit’s ruling conflicts with the Tenth Circuit’s holding in 
Dowell. There, the Tenth Circuit explicitly enunciated 
prospective compliance as a separate prong of the good-faith 
inquiry. 8 F.3d at 1501. In a nuanced opinion strikingly at 
odds with the Eleventh Circuit’s ruling below, that Court 
looked to “future-oriented board policies manifesting a 
continued commitment to desegregation” rather than 
“potentially self-serving statements” by school officials. Id. 
By contrast, the Eleventh Circuit looked only to 
Respondents’ past compliance through the purportedly 
different lens of “practicability” and “maximum 
practicability.” Pet App. at 37a-40a. But regardless of 
whether this distinction has any meaning for purposes of a 
court’s analysis of the two substantive elements of good faith, 
the Eleventh Circuit clearly erred and contradicted the Tenth 
Circuit by failing to require any proof at all of one of these 
elements. This is particularly true where, as here, 
Respondents failed to provide any reasonable assurance to 
the District Court about their future plans. See Pet. App. at 
54a; Pet. at 24. For this reason, the Court should grant 
certioriari on the second question presented independent of 
its decision with regard to the other questions presented.

HI. THIS COURT SHOULD REVIEW THE
ELEVENTH CIRCUIT’S DEPARTURE FROM
THE “CLEARLY ERRONEOUS” STANDARD.
Despite clear statements of the District Court’s 

findings on school assignment, the Court held that “we are 
convinced that the district judge agreed with the magistrate 
judge and found that shifting demographics was a substantial 
cause of the racial imbalances.” Pet. App. at 21a. The 
Eleventh Circuit could only have reached this ruling, 
however, by abandoning its deference to the trial judge’s 
legally-mandated de novo review of the Magistrate Judge’s



8

findings. See 28 U.S.C. § 636. For, as noted earlier, the 
District Court’s purportedly improper citation to Lockett F s 
practicability language is irrelevant to the identification of the 
cause of current racial imbalances, and therefore cannot have 
“tainted” or “infected” the District Court’s factual findings. 
In short, it is hard to escape the conclusion that the Eleventh 
Circuit simply favored the Magistrate Judge’s factual 
findings over those of the District Court -  but that alone is 
insufficient reason to usurp the role of the district judge.

Similarly, the Eleventh Circuit’s preference for the 
Magistrate Judge’s findings on good faith over those of the 
District Court cannot be justified by the District Court’s 
citation to Lockett I  rather than Lockett II. See Lockett II, 111 
F.3d at 842 (“Under this standard, we are not entitled to 
‘reverse the finding of the trier of fact simply because [we 
are] convinced that [we] would have decided the case 
differently’”). The District Court found, for example, that 
Respondents’ own failure to understand the import of 
programs such as the majority-to-minority transfer program 
“cast doubt on the competence of the individuals charged 
with the task of desegregating the schools,” Pet. App. at 
134a, particularly since not a single transfer had been 
approved since the 1971 Order, id. at 137a. This finding 
regarding the competence and good faith o f the very 
individuals charged with compliance is wholly independent 
of whether Respondents must desegregate to the “extent 
practicable.” Rather, it represents a clearly supportable 
factual finding that should be respected absent clear error -  
respect it was not accorded by the Eleventh Circuit. See Pet 
App. at 39a.

Respondents’ final arguments regarding the third 
question presented are merely attempts to retry the facts. See 
Opp. at 28-30. They are not properly before this Court, and 
in no way do they rehabilitate the clear errors in the Eleventh 
Circuit’s ruling.



9

CONCLUSION
For the foregoing reasons and the reasons set forth in 

Petitioners’ opening brief, the petition for a writ of certiorari 
should be granted.

Elaine R. Jones 
Director-Counsel

Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense 
& Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 965-2200

Respectfully submitted,

Victor A. Bolden 
(Counsel o f Record) 
Jesse M. Furman 
Kenneth D. Heath 
Wiggin & Dana 
One Century Tower 
265 Church Street 
New Haven, CT 06508 
(203) 498-4400

Warren Hope Dawson 
Dawson Law Office 
1467 Tampa Park Plaza 
Tampa, Florida 33605 
(813) 221-1800