Bradley v. Pinellas County School Board Brief for Plaintiffs-Appellees
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August 6, 1996

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Brief Collection, LDF Court Filings. Bradley v. Pinellas County School Board Brief for Plaintiffs-Appellees, 1996. dc92b1cc-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c677545b-8f55-43f7-983d-73c5b344e012/bradley-v-pinellas-county-school-board-brief-for-plaintiffs-appellees. Accessed July 16, 2025.
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In the United States Court of Appeals for the Eleventh Circuit No. 96-2399 Leon W. Bradley, Jr ., et a l , Plaintiffs- Appellees, Pinellas County School Board, et al., Defendants-Appellees, Dan E. Schramek and Malcolm Flakes, Jr ., Applicants for Intervention-Appellants. Appeal from the United States District Court for the Middle District of Florida, Tampa Division BRIEF FOR PLAINTIFFS-APPELLEES Enrique Escarraz, III 2121 5th Avenue North P. O. Box 847 Elaine R. Jones Director-Counsel St. Petersburg, FL 33731 (813) 327-6600 Norman J. Chachkin Gloria J. Browne Roger W. Plata 216 Mirror Lake Drive P. O. Box 13903 St. Petersburg, FL 33733 (813) 823-9188 NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, 16th floor New York, New York 10013 (212) 219-1900 Attorneys for Plaintiffs-Appellees No. 96-2399 Bradley v. Pinellas County School Board Certificate of Interested Persons and Corporate Disclosure Statement The undersigned counsel of record certify that the following listed persons or entities have an interest in the outcome of this appeal: Sylvia Jean Barton Emma Lee Barton Lee Benjamin John W. Borkowski John W. Bowen Leon W. Bradley, Jr. Leon W. Bradley, Sr. Gloria J. Browne Lucile O. Casey Norman J. Chachkin Barbara J. Crockett Warren H. Dawson Roland D. Devine - C-l of 3 - No. 96-2399 Bradley v. Pinellas County School Board Certificate of Interested Persons and Corporate Disclosure Statement (continued) Sam Devine Enrique Escarraz, III Malcolm Flakes, Jr. Dyril L. Flanagan Corrine Freeman Joyce Maria Green Magnolia Vilydia Green Alexander Green Howard Hinesley Susan Fatvala Thomas C. MacDonald, Jr. Hon. Steven D. Merryday, United States District Judge NAACP Fegal Defense and Educational Fund, Inc. Pinellas County School Board Roger W. Plata - C-2 of 3 - No. 96-2399 Bradley v. Pinellas County School Board Certificate of Interested Persons and Corporate Disclosure Statement (continued) Thomas W. Reese Janice Faye Rutledge Charles Rutledge Dan E. Schramek Theodore M. Shaw Maree Sneed Bruce P. Taylor Andrea M. Thacker The class of black students eligible to attend the public schools of Pinellas County / Norman J. Chachkin - C-3 of 3 - Statement Regarding Oral Argument Plaintiffs-appellees believe that oral argument is unnecessary in this appeal because the issues are primarily factual and subject to the clearly erroneous standard of review. However, counsel for plaintiffs-appellees would be pleased to present argument and respond to the Court’s questions if the Court determines not to handle the appeal summarily. Certificate of Type Size and Style This brief has been prepared in 14-point proportionally spaced Dutch Roman Font type. Table of Contents Page Certificate of Interested Persons and Corporate Disclosure Statement ............................................... .. • C-l Statement Regarding Oral A rgum ent........................................................... i Certificate of Type Size and Style ................................................................ i Table of C ontents............................................................................................ i Table of C itations.......................................................................................... iv Statement of Jurisdiction.............................................................................. xi - i - Table of Contents (continued) Page Statement of the Issues ........................................................... \ Statement of the C a se ..................................................................................... 2 Statement of Facts ....................................................................................... 5 Background of this litigation................................................................ 6 Appellants’ factual c la im s.................................................................... 7 The District Court’s findings on those claim s................................... 10 Statement of the Standard of Review ...........................................................13 Summary of Argument .................................................................................... 14 ARGUMENT- I The District Court Correctly Ruled That Appellants Failed To Substantiate Their Allegations And Were Not Entitled To Intervene As Of Right In This C a s e .............................................................................................. ... II The District Court Did Not Err In Denying The Balance Of Flakes’ M otion.......................................................... 32 Adequacy of Class Representation...................................33 - 11 - Table of Contents (continued) Page ARGUMENT-(continued) (1) Failure to pursue appellants’ claims of discrimination............................ .......................33 (2) Conduct of the litigation by class counsel.............................................................................. 34 (a) Flakes cannot raise these issues on appeal because of his failure to raise them timely below and his abandonment of any claim of error in his b rie f....................................................36 (b) Flakes’ non-plan-specific claims are, in any event, without m e r i t .................................................................... 41 Permissive Intervention.................................................. 48 Conclusion.............................................................................. 50 Certificate of Service.................................................................................. 52 - 111 - Appendix A - Unpublished opinion in Mills v. Polk County Board of Public Instruction (11th Cir. 1993) Table of Contents (continued) Page Appendix A - Unpublished opinion in Mills v. Polk County Board of Public Instruction (11th Cir. 1993) Table of Citations Cases: Anderson v. City of Bessemer City, 470 U.S. 564 (1985) ..................... 16n Bell v. West Point Municipal Separate School District, 446 F.2d 1362 (5th Cir. 1971) ........................................................ 31n Board of School Commissioners of Indianapolis v. Jacobs, 420 U.S. 128 (1975) .............................................................................. 42 Bradley v. Board of Public Instruction of Pinellas County, 431 F.2d 1377 (5th Cir. 1970), cert, denied, 402 U.S. 943 (1971) .................................................................................. .. 6 * Bradley v. Pinellas County School Board, 961 F.2d 1554 (11th Cir. 1 9 9 2 )........................................................................... passim Calhoun v. Cook, 430 F.2d 1174 (5th Cir. 1970) ...................................... 24 - IV - Fable of Citations (continued) Cases (continued): * Carr v. Montgomery County Board of Education, 429 F.2d 382 (5th Cir. 1970 )................................................. Continental Technical Services, Inc. v. Rockwell International Corporation, 927 F.2d 1198 (11th Cir. 1991) County of Suffolk v. Long Island Lighting Company, 710 F. Supp. 1428 (E.D.N.Y. 1989), affd in pertinent part, 907 F.2d 1295 (2d Cir. 1990) ............................................... Crumble v. Blumthal, 549 F.2d 462 (7th Cir. 1977) Davis v. Board of School Commissioners of Mobile, 402 U.S. 33 (1971) ........................................ Federal Savings and Loan Insurance Corporation v. Falls Chase Special Taxing District, 983 F.2d 211 (11th Cir. 1993)......... Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993) Flax v. Potts, 464 F.2d 865 (5th Cir.), cert, denied, 409 U.S. 1007 (1972) ........................................ Flax v. Potts, 450 F.2d 1118 (5th Cir. 1971) Page . 12n . . . 40 44, 45 49n . . 23 . 16n . . 40 . . 24 . . 24 - v - Table of Citations (continued) Page Cases (continued): Formby v. Farmers and Merchants Bank, 904 F.2d 627 (11th Cir. 1990) ..................................................................................... 41 Franks v. Bowman Transportation Company, 424 U.S. 747 (1 9 7 6 )......... 41 General Telephone Company of the Southwest v. Falcon, 457 U.S. 147 (1982) ......................................................................... 42n Georgia State Conference of Branches of NAACP v. Georgia, 99 F.R.D. 16 (S.D. Ga. 1983) ........................................................ 42n Graves v. Walton County Board of Education, 686 F.2d 1135 (5th Cir. Unit B 1982).......................................... 41-42 Green v. School Board of Roanoke, 316 F. Supp. 6 (W.D. Va. 1970), affd sub nom. Adams v. School District No. 5, Orangeburg, 444 F.2d 99 (4th Cir.), cert, denied, 404 U.S. 912 0«>71, ......................................................................................... 31n Harris v. Crenshaw County Board of Education, 968 F.2d 1090 (11th Cir. 1992) ...................................................... 31n - vi - Table of Citations (continued) Page Cases (continued): * Haygood v. Auto-Owners Insurance Company, 995 F.2d 1512 (11th Cir. 1993) ........................................................... 41 * Henry v. Clarksdale Municipal Separate School District, 409 F.2d 682 (5th Cir.), cert, denied, 396 U.S. 940 (1969)............................ 23 In re Prince, 40 F.3d 356 (11th Cir. 1994) ............................................. 16n Keyes v. School District No. 1, Denver, 413 U.S. 189 (1973) ..................23 LaMarca v. Turner, 995 F.2d 1526 (11th Cir. 1993)........................ 32n, 40 Lee v. Macon County Board of Education, 448 F.2d 746 (5th Cir. 1971 )........................................................... 31 n Little Rock School District v. Pulaski County Special School District, 839 F.2d 1296 (8th Cir.), cert, denied, 488 U.S. 869 (1988).................................................................................... 23 Lynch Corporation v. Mil Liquidating Company, 82 F.R.D. 478 (D.S.D. 1979)............................................................. 42n Manasota-88, Inc. v. Tidwell, 896 F.2d 1318 (11th Cir. 1990).............. 32n - V l l - Table of Citations (continued) Page Cases (continued): Meek v. Metropolitan Dade County, 985 F.2d 1471 (11th Cir. 1990) ................................................................................ 32n Mills v. Polk County Board of Public Instruction, 993 F.2d 1485 (11th Cir. 1993) .................................................... 22, 23 * Mitchell v. McCunney, 651 F.2d 183 (3d Cir. 1981)................................. .25 Mularky v. Holsum Bakery, Inc., 120 F.R.D. 118 (D. Ariz. 1988)......... 42n Newell v. Prudential Insurance Company of America, 904 F.2d 644 (11th Cir. 1990) ........................................................ 16n O’Neal v. Kennamer, 958 F.2d 1044 (11th Cir. 1992) ............................... 37 Ordower v. Feldman, 826 F.2d 1569 (7th Cir. 1987) ................................. 40 * Parker v. Anderson, 667 F.2d 1204 (5th Cir. Unit A 1982) ___ 43, 44. 45 Pullman-Standard v. Swint, 456 U.S. 273 (1982) ................................... 16n Randolph County v. Alabama Power Company, 784 F.2d 1067 (11th Cir. 1986), cert, denied, 479 U.S. 1032 (1987) ................... 32n Rhoades v. Jim Dandy Company, 107 F.R.D. 31 (N.D. Ala. 1985) . . . 49n * Sosna v. Iowa, 419 U.S. 393 (1975) ...................................................... 41? 42 - vin - Table of Citations (continued) Cases (continued): Page * Sunamerica Corporation v. Sun Life Assurance Company of Canada, 77 F.3d 1325 (11th Cir. 1996) ............................................. 16n 39.40 Stallworth v. Monsanto Company, 558 F.2d 257 (5th Cir. 1977)......... 49n Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).................................................................... 6, 12n, 26 United States v. Board of Public Instruction of Polk County, 395 F.2d 66 (5th Cir. 1968)..................... ..................................... 22. 23 United States v. South Florida Water Management District, 922 F.2d 704 (11th Cir.), cert, denied sub nom. Western Palm Beach County Farm Bureau, Inc. v. United S ta te s .............. xi United States v. Texas Education Agency, 532 F.2d 380, 395 (5th Cir.), vacated sub nom. Austin Independent School District v. United States, 429 U.S. 990 (1976), reaffd on remand, 564 F.2d 162 (5th Cir. 1977) .......................................... 31 n United States Parole Commission v. Geraghty, 445 U.S. 388 (1980) . . . . 41 - IX - Table of Citations (continued) Cases (continued): * Walker v. Anderson Electrical Connectors, 944 F.2d 841 (11th Cir. 1991), cert, denied,__ U .S .___ , 122 L. Ed. 2d 352 Page O993) ......................................................................................... 32n, 36 Walker v. Jim Dandy Company, 747 F.2d 1360 (11th Cir. 1984)......... 49n Worlds v. Department of Health and Rehabilitative Services, 929 F.2d 591 (11th Cir. 1991) . 48 Statutes and Rules: 28 U.S.C. § 1291.............. Fed. R. App. P. 4(a)(4)(C) Fed. R. Civ. P. 6(a) . . . . Fed. R. Civ. P. 24(a) . . . . Fed. R. Civ. P. 24 (b )___ Fed. R. Civ. P. 5 9 (e )___ 11th Cir. R. 36-2.............. ................... xi .......................40 ................... 5n .......................48 .......................48 5, 36, 37, 38, 40 .....................22n - x - Table of Citations (continued) Page Other Authorities: 1C Charles A. Wright, Arthur R. Miller & Mary K. Kane. Federal Practice and Procedure § 1913 (2d ed. 1986)..................... 48 Statement of Jurisdiction This Court has provisional jurisdiction of this appeal for the purpose of determining whether the District Court correctly denied appellant Flakes’ motion to intervene. United States v. South Florida Water Management District 922 F.2d 704, 706 (11th Cir.), cert, denied sub nom. Western Palm Beach County Farm Bureau, Inc. v. United States, 502 U.S. 953 (1991). This Court has jurisdiction of Flakes’ and Schramek’s appeal from the District Court’s Order taxing costs against them pursuant to 28 U.S.C. § 1291. - xi - In the United States Court of Appeals for the Eleventh Circuit No. 96-2399 Leon W. Bradley, Jr ., et al. , Plaintiffs-Appellees, Pinellas County School Board, et al., Defendants-Appellees, Dan E. Schramek and Malcolm Flakes, Jr ., Applicants for Intervention-Appellants. Appeal from the United States District Court for the Middle District of Florida, Tampa Division BRIEF FOR PLAINTIFFS-APPELLEES Statement of the Issues 1. Are the District Court’s factual findings — made after conducting the evidentiary hearing required by this Court’s 1992 remand — that appellants failed to substantiate their allegations of discrimination by the Pinellas County School Board in its administration of the desegregation plan clearly erroneous? - 1 - 2. Did the District Court abuse its discretion in denying permissive intervention to appellants after having correctly held that appellants were not entitled to intervene as of right because they had failed to substantiate the allegations of their motion? 3. Did the District Court abuse its discretion by not reaching appellant Flakes’ claims of entitlement to intervention because of (a) the admitted fact that the original named minor plaintiffs no longer attend the public schools of Pinellas County or (b) Flakes’ allegations of ethical misconduct by counsel for the certified plaintiff class, because Flakes failed timely to advise the Court that he wished to pursue these issues? 4. Even if the District Court should have reached these claims, is the judgment below due to be affirmed because they rest upon a legally flawed conception of counsel’s responsibility to the interests of the class as a whole rather than to named class representatives? Statement of the Case This appeal follows remand proceedings from this Court’s prior decision in Bradley v. Pinellas County School Board, 961 F.2d 1554 (11th Cir. 1992), holding that the motion to intervene in this school desegregation action filed - 2 - by Dan E. Schramek and Marcus Griffith1 in 1990 should not have been denied without an evidentiary hearing. Following completion of discovery (see R1 -[Docket Entries at 9. Items # # 12-14]), the District Court scheduled such a hearing for January 21, 1994 (see id. at 11, Item # 31). The Court subsequently modified the schedule for the purpose of conducting a prehearing conference on that date (see id. at 12. Item #35) and ultimately reset the hearing for March 28, 1994 (see id. at 12. After this Court s decision, Mr. Griffith's request for intervention became moot when he moved to California. Rl-41, R l-44. Current appellant Malcolm Flakes moved to intervene (and for other relief) on the same date, raising the issues presented by the original 1990 Schramek-Griffith motion to intervene as well as other questions. Rl-42, R. Exc. 42; Rl-43. The District Court conducted an evidentiary hearing on March 28, 1994 covering the Schramek and Flakes requests to intervene and limited to the questions common to both motions. See Rl-50. Following the hearing, but before the District Court ruled, Schramek’s youngest child graduated from high school, mooting his claim for intervention. See R3-70-6 n.4, R. Exc. 70, at 6 n.4; Appellants’ Initial Brief at 13. Thus, this appeal concerns Flakes’ asserted right to intervene exclusively. - 3 - Item # 40; id. at 13, Item # 47; Rl-50). Before the evidentiary hearing could be conducted, on February 9, 1994 Marcus Griffith moved to withdraw as an applicant for intervention because he no longer resided within the school district (see supra note 1; Rl-40) and Malcolm Flakes moved to intervene and "to amend the named plaintiff class representatives" (Rl-42-1, R. Exc. 42. at l ).2 The original parties and applicants for intervention by that time had exchanged witness lists and entered into a pre-trial stipulation in preparation for the hearing (see Rl-39); accordingly, ”[b]y agreement of counsel and with the approval of the court, Flakes participated in the evidentiary hearing, the scope of which was limited to those issues common to [his February 9, 1994 motion and] the July 30, 1990 motion for intervention submitted by Griffith and Schramek." R3-70-2, R. Exc. 70, at 2. On September 7, 1994, the District Court entered a comprehensive Order Denying Motion to Intervene which thoroughly reviewed the evidence presented by the parties at the hearing and found "that the movants [for intervention] ha[d] failed to substantiate each of their allegations." R3-70-24; R. Exc. 70, at 24. The Court denied Schramek’s motion to intervene with 2Flakes was and is represented by the same counsel as Schramek and Griffith. . 4 - prejudice, id. at 25, and ruled that "Flakes" motion for intervention is likewise DENIED insofar as it relies upon the allegations made in Schramek’s motions," id. at 26. In its ruling, the District Court provided an orderly procedure for Flakes to litigate any other issues raised in his February 9, 1994 motion {id.): If Flakes desires to pursue the issues of his motion for intervention that were not addressed in this order, Flakes shall file a motion no later than September 30, 1994, identifying any issues for which he requests an evidentiary hearing. On September 20, 1994, Flakes filed a motion pursuant to Fed. R. Civ. P. 59(e) to alter or amend the District Court’s September 7 Order.3 This motion did not contain a request for an additional evidentiary hearing nor identify additional issues which Flakes sought to pursue. R3-72; see also R3- 73 (memorandum in support of Rule 59 motion). A month later, on October 24, 1994, Flakes filed a "Statement Concerning Need for Further Evidentiary Hearing," R3-84; see also R. Exc. 84. On March 4, 1996, the District Court endorsed the first page of the Rule 59 motion to alter or amend and the 3This motion was timely filed, since intermediate Saturdays and Sundays are excluded in determining the ten-day period pursuant to Fed. R. Civ. P. 6(a). - 5 - "Statement" as "DENIED." R3-[3/4/96 Endorsed Orders (unnumbered on docket sheet)]; R. Exc. B, C. This appeal followed.4 Statement of Facts Background of this litigation. This Court described the prior history of this school desegregation case in its 1992 opinion, 961 F.2d at 1555-56, which is quoted in A p p e l l a n t s ’ In it ia l B r ie f at 2-4. There is no need to repeat that discussion here; we add only the following for the sake of clarity: In 1970, the predecessor Fifth Circuit required revision of the school district’s desegregation plan using the techniques of rezoning and contiguous pairing but not requiring significant pupil transportation. Bradley v. Board of Public Instruction of Pinellas County, 431 F.2d 1377 (5th Cir. 1970), cert, denied, 402 U.S. 943 (1971). The District Court’s Order of July 23, 1971 (R1-7/23/71 Order), approving a more comprehensive and effective plan utilizing transportation, followed the announcement of the Supreme Court’s decisions endorsing that tool in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) and companion cases, and the filing of plaintiffs’ motion for 4Schramek’s appeal is limited to the District Court’s action taxing costs against him in favor of the School Board. See APPELLANT’S INITIAL BRIEF at ix, 48-50. - 6 - further relief in light of Swann, see Rl-[Docket Entries, 5/18/71 Pltffs.' motion (unnumbered page and item)]. That plan involved all schools and all areas of the school district in the desegregation process. As the court below observed, a week after it was approved, "upon motion of the defendants, the court amended its judgment to permit the school district to make changes in the plan without securing prior judicial approval so long as the plan maintained ‘a 30 percent maximum black student ratio in any school and a minimum black student ratio that varied by grade level but was the same throughout the county.’" R3-70-3 to -4, R. Exc. 70, at 3-4. Although the applicable ratios have been modified by stipulations between the parties approved by the District Court since that time, as this Court recognized, see 961 F.2d at 1555; R3-70-4 & n.3, R. Exc. 70, at 4 & n.3, the comprehensive nature of the plan and its effectiveness in achieving desegregation have been preserved since that time. Appellants’ factual claims. In 1990, Schramek and Griffith moved to intervene in this action to challenge discriminatory policies and practices that they alleged were being pursued by the Pinellas County school system in violation of the District Court’s Orders in this case, and which, they alleged, - 7 - the plaintiffs had failed or refused to address.5 This Court's description of the issues raised by the applicants for intervention, quoted below, and the remand instructions contained in its 1992 opinion, provided the framework of the proceedings leading to the entry of the Orders from which this appeal is taken. The proposed intervenors allege that the school board discriminates against black students by causing the burden of busing, which is necessary to maintain the court-ordered maximum and minimum black student ratios in some schools, to fall on black students and not white “There is no dispute about the original plaintiffs’ failure to pursue the allegations made by the applicants for intervention in this litigation. In their memorandum responding to the same allegations - as they were repeated in Flakes’ motion, see supra note 1 - plaintiffs indicated that they did not raise these claims because "it was the reasoned conclusion of their counsel, in the exercise of their best professional judgment after reasonable investigation," that the claims lacked factual or legal support. Rl-53-8 to -9 f 12(a)(2), -9 to -11 1111 12(b)(iii), 12(b)(v), -12 Iff 12(c)(ii) [duplicate paragraphs erroneously numbered in original], -14 to -15 f 12(e), -16 f 12(g), R. Exc. 53, at 8-9 f 12(a)(2), 9-11 f f 12(b)(iii), 12(b)(v), 12 f f 12(c)(ii) [duplicate paragraphs erroneously numbered in original], 14-15 f 12(e), 16 f 12(g). Following the evidentiary hearing, that was also the conclusion of the District Court. - 8 - students. More specifically, they allege that the school board, by engaging in invidious discriminatory practices, implements the desegregation plan in such a manner that black students are bused out of their neighborhood to attend schools while white students are permitted to attend neighborhood schools. The discriminatory practices that allegedly advance this end are as follows. First, the proposed intervenors allege that the school board fails to adhere to state student capacity figures; it manipulates these figures to make schools in which the black student ratio is over 30 percent appear to be over capacity; this manipulation of the figures allows the school board to bus black students out of a neighborhood to adjust the ratio. The proposed intervenors allege specifically that this practice is in violation of the May 1977 amendment to the desegregation order and that the existing plaintiffs in this suit have declined to insist that the school board stop the practice. Second, the proposed intervenors allege that white students in integrated neighborhoods are allowed to attend their neighborhood schools by applying for special attendance permits, applications for which are mailed to parents of white children but not to black children. The result is that black students who live in integrated neighborhoods are being bused out of their neighborhoods to attend schools while their white neighbors are allowed to attend neighborhood schools. Third, the proposed intervenors allege that the school board provides inferior school facilities in the integrated neighborhoods in the south part of the county; builds and expands facilities in all-white neighborhoods in the north part of the county; and addresses the overcrowding of schools in integrated neighborhoods by busing black students away from their neighborhoods, using the desegregation order as justification. Thus, new and improved neighborhood schools are being built for the all-white neighborhoods in the north at the expense of the integrated neighborhoods in the south, thereby causing more white families with school-age children to move to all-white neighborhoods rather than to integrated neighborhoods. 961 F.2d at 1555-56. This Court reversed the denial of intervention without - 9 - a hearing [bjecause the allegations [described above], if substantiated, establish that the proposed intervenors are entitled to intervene," id. at 1556. It specifically instructed the District Court to conduct a hearing on these allegations: Of course, the proposed intervenors may be unable to substantiate their allegations. Accordingly, it is appropriate for the district court to hold an evidentiary hearing on the motion to intervene. I f the allegations are substantiated, the motion to intervene should be granted. Id. at 1558 (emphasis added). The District Court’s findings on those claims. As described in the Statement of the Case, following a period of discovery the District Court conducted an evidentiary hearing in accordance with this Courts remand directions. After consideration and analysis of the testimony presented during a full day of hearing, as well as substantial documentary evidence introduced at that hearing and the thorough post-trial submissions from the parties (see R2-62, R3-63, -64), the District Court explicitly found that "the movants have failed to substantiate each of their allegations. The evidence does not show that the parties are thwarting the goal of achieving a unitary school system by manipulating school capacity, by granting special attendance permits on a - 10 - discriminatory basis, or by maintaining inadequate facilities in integrated neighborhoods." R3-70-24, R. Exc. 70, at 24. Specifically with respect to manipulation of capacity, the District Court found that nothing in its prior orders required the utilization of "FISH"6 capacities rather than the "program capacity" figures used by the school district in making student assignments, which were also accepted by the State Department of Education educational plant survey teams. R3-70-13 to -14, R. Exc. 70, at 13-14. The Court concluded that "[tjhere is no evidence that the defendants are manipulating capacity to perpetuate discriminatory busing." R3-70-17, R. Exc. 70, at 17. As to special attendance permits, the District Court found that such permits were granted to allow all students, not just white students, to enroll at schools near their residences (rather than other schools to which they would be assigned under the school board’s attendance plan) if that would assist in meeting the desegregation objectives of the plan - similar to the mandatory 6"FISH" is an acronym for the Florida Inventory of School Houses, a statistical report of school building capacity figured on a uniform basis using formulas devised by the State Department of Education. See R3-70-12 n.32, R. Exc. 70, at 12 n.32. - 11 - majority-to-minority transfer option contained in the District Court's prior Order of August 6, 1970.7 In only one instance, the court found, were transfers under such permits solicited only from the parents of students of one race, and the Court credited the Superintendent’s testimony that this was a departure from school system policy that has not recurred. R3-70-17 to -19, R. Exc. 70, at 17-19. The District Court held that "[t]his episodic instance is insufficient to justify intervention."8 7Majority-to-minority transfers have been required in all school desegregation decrees in this Circuit since Carr v. Montgomery County Board of Education, 429 F.2d 382, 386 (5th Cir. 1970) and were specifically endorsed by the Supreme Court in Swann, 402 U.S. at 26-21. Appellants’ allegation, that white students in integrated neighborhoods are allowed to attend their neighborhood schools by applying for special attendance permits, applications for which are mailed to parents of white children but not to black children . . . [with the result] that black students who live in integrated neighborhoods are being bused out of their neighborhoods to attend schools while their white neighbors are allowed to attend neighborhood schools (961 F.2d at 1555 [emphasis added]), implied that the school district regularly and repeatedly engaged in the asserted practice. The District Court found to the contrary. - 1 2 - Finally, the court below considered "the movants' allegation ‘that the school board provides inferior and inadequate school facilities in the integrated neighborhoods in the south part of the county.’" It concluded that appellants "offered no credible evidence to support this allegation." R3-70-19 to -24, R. Exc. 70, at 19-24. The court also carefully examined the number of black and white students who were transported for purposes of desegregation under the existing plan of the Pinellas County School Board. It found that "[wjhile . . . black students bear most of the burden of busing to achieve desegregated schools, the numbers alone do not establish a racially discriminatory busing policy" and that "[t]he evidence . . . does not show that the disproportionate busing violates the court order." R3-70-8, -9, R. Exc. 70, at 8, 9. Because appellants had failed to prove their claims, the District Court therefore held that they had failed to establish their right to intervention under the standards enunciated in this Court’s 1992 decision. Statement of the Standard of Review The Standard of Review is delineated in a footnote appended to each of the two major argument headings. - 13 - Summary of Argument 1. The District Court's findings, summarized in the preceding section, are not clearly erroneous but are well supported by the record evidence and establish that appellants are not entitled to intervene as of right in this case. 2. The District Court acted well within its discretion in excluding from the scope of the evidentiary hearing that had already been scheduled when appellant Flakes filed his motion to intervene "and to amend the named plaintiff class representatives," any claims or grounds for relief advanced by Flakes that had not also been contained in the 1990 Schramek and Griffith motion to intervene. After disposing of the questions covered by that hearing, the court below also acted within its discretion in declining to consider Flakes’ other claims as untimely, after Flakes failed to notify the Court in the manner and within the time explicitly and unambiguously required by the Court’s September 7, 1994 Order. Even if this Court were to consider Flakes’ other claims, it must affirm the judgment below because Flakes’ arguments are without merit. The contention that class representation is inadequate because plaintiffs’ counsel refused to present Flakes’ allegations of discrimination fails in light of the District Court s findings that these allegations could not be substantiated. - 14 - Flakes assertions that intervention is required because counsel for the certified plaintiff class did not add new named class representatives and that class counsel are making litigation decisions unethically in the absence of new named class representatives are factually unsupported and legally in error. Class counsel’s paramount obligation is to protect and further the interests of the class as a whole, even if that requires counsel to subordinate the desires or interests of individual class members, whether named parties or not. Finally, the District Court did not abuse its discretion in denying permissive intervention. ARGUMENT I The District Court Correctly Ruled That Appellants Failed To Substantiate Their Allegations And Were Not Entitled To Intervene As Of Right In This Case9 The District Court s factual findings, including its determination whether appellants established that the Pinellas County school system engaged in racially discriminatoiy practices, are subject to review under the "clearly - 15 - The central issue on this appeal is a narrow one: did appellants "substantiate their allegations" of racially discriminatory policies and practices by the Pinellas County School Board? If so, this Court directed, they should be allowed to intervene to eradicate that discrimination. If not, they had no right to intervene. See Bradley v. Pinellas County School Board. 961 F.2d at 1558. The District Court made extensive subsidiary factual findings to support its ultimate conclusion that "the movants have failed to substantiate each of their allegations," R3-70-24, R. Exc. 70, at 24. Appellants, who address this erroneous" standard. Anderson v. City of Bessemer City, 470 U.S. 564 (1985); Pullman-Standard v. Swint, 456 U.S. 273 (1982); Sunamerica Corporation v. Sun Life Assurance Company of Canada, 77 F.3d 1325, 1333 (11th Cir. 1996); In re Prince, 40 F.3d 356, 359 (11th Cir. 1994); Newell v. Prudential Insurance Company of America, 904 F.2d 644, 649 (11th Cir. 1990). The District Court’s application of the law in determining whether appellants had a right to intervene in this action, including its application of the prior decision of this Court to the facts as found, is subject to plenary review for legal error. Federal Savings and Loan Insurance Corporation v. Falls Chase Special Taxing District, 983 F.2d 211, 214-15 (11th Cir. 1993). - 16 - issue only in Point II.E of their INITIAL B r ie f , at pp. 36-45, do not directly confront either the District Court’s ultimate conclusion or its subsidiary- findings — much less demonstrate why the court below was clearly erroneous. Instead, they either (a) simply assert the contrary; (b) misrepresent the findings below; or (c) advance as grounds for their right to intervene an interpretation of the prior District Court Orders that is entirely mechanical, technical and impracticable, without considering (as did the District Court) whether the school system’s actions were discriminatory or a necessary "practical compromise between that which is presently desirable and that which is presently feasible," R3-70-26 to -27, R. Exc. 70, at 26-27. For example, appellants assert that they established their first claim, manipulation of capacity figures causing racially discriminatory busing of black students, because "[t]he September 7 district court order found that school board fails to adhere to state student capacity figures, and instead relies upon its own program capacity figures when determining whether to bus black or white students." Appellants’ Initial Brief, at 36, citing R3-70-13 [R. Exc. 70, at 13]. Appellants ignore (1) the District Court’s finding on the same page of its Order that contrary to their claim of manipulation, the school system "uses the same program capacity method to determine the capacity of all of - 17 - the Pinellas County schools," id.; (2) the District Court's recognition that mechanically calculated FISH ratings must be adjusted for specialized classes, including special education offerings, id.;10 (3) the District Court's finding that none of the prior Orders or stipulations required the use of FISH capacities, id.; (4) the District Court’s finding that the system’s program capacity figures are accepted and used for facilities planning purposes by survey teams including employees of the State Department of Education, R3- 70-14, R. Exc. 70, at 14; and (5) the District Court’s overall conclusion that "there is no evidence that the defendants are manipulating capacity to perpetuate discriminatory busing," R3-70-17, R. Exc. 70, at 17. Appellants’ claims that they demonstrated manipulation of capacity figures at Bay Point Middle School in 1989-90 (Appellants’ Initial Brief 10FISH capacity is independent of the instructional use to which a room in a school building is put, R4-110 to -111, -132 to -134, and thus is insensitive to a variety of educational needs that may require smaller class sizes, such as special education programs, R4-135 to -136. For this reason, assigning students to schools based rigidly upon only their "FISH" capacities could compromise the ability of the school district to deliver educational services appropriate to the needs of all pupils, in accordance with legal requirements. - 18 - at 37), Maximo Elementary School (id. at 37-78). and Lakewood High School (id. at 38-39), all depend upon their a priori assumption that use of "program capacity" rather than FISH figures was discriminatory.11 Moreover, many of appellants’ claims depend upon assertions rejected by the District Court based upon testimony at the hearing. For instance, appellants assert, Initial Brief at 39, that in 1988 "the school board recommended a utilization rate of 90% for Ljakewood ]H[igh ]S[chool] instead of the standard 95% rate used for all other high schools." The District Court found that it was the state survey- team, not the school system, that made this decision, R3-70-14, R. Exc. 70, at 14. This finding is supported by the testimony of school district employee Marlene Mueller, R4-126 to -127. Appellants also assert that reduction of Lakewood’s capacity in the 1988 Educational Plant Survey resulted from low population increase estimates furnished by Pinellas County school officials to the survey team, implying that the system was manipulating Lakewood's nThe District Court specifically considered and rejected appellants’ claims regarding Bay Point. R3-70-14 to -15, R. Exc. 70, at 14-15. (Although the Court’s Order erroneously refers to Bay Point "Elementary," its record references, see id. at n.42, are to testimony and exhibits regarding Bay Point Middle School.) - 19 - capacity in order to increase the busing of black students (see Appellants' Initial Brief at 38). The District Court, however, found that the 1988 survey reduced the capacity at each high school in Pinellas County; again, the District Court’s finding is amply supported by the hearing testimony, R4-128 to -129, -137. Lakewood's reduction in capacity of 435 student stations was hardly atypical; in fact, another high school (Dixie Hollins) lost 981 stations, R4-137. As to the second allegation of discrimination on which this Court directed that an evidentiary hearing be held, appellants simply assert that they proved that 'the school board used racially selective invitations to apply for special attendance permits" (APPELLANTS’ INITIAL Brief at 40). They fail to address either the District Court’s finding that special attendance permits are available to students of all races where their use would contribute toward meeting the enrollment goals embodied in the court orders12 or its conclusion that the single instance of aberrant conduct by a school system administrator attempting to foster a desegregated enrollment at Lakewood High School, which had been clearly declared to be contrary to School Board policy and 12This finding was amply supported by the testimony. E.g., R4-89 to -90, -103, -257 to -258. - 20 - had not recurred, did not amount to a showing of discrimination undermining the goal of "unitary status" that would justify intervention.13 Appellants’ nonchalance toward record evidence and the District Court’s findings is perhaps best illustrated by their discussion of the school district's construction of new facilities (Appellants’ Initial Briel at 40-43).14 They assert that the school district’s practice of including pupils assigned to a school for desegregation purposes pursuant to the District Court’s Orders, as well as those who live near the school, when assessing the need for expanded or new facilities "is a manipulation of the needed school capacity in south St. Petersburg" {id. at 40). The District Court rejected this argument and found 13See supra note 8. 14Appellants argued to this Court in 1992, see 961 F.2d at 1555-56, quoted supra p. 9, and to the District Court "that the school board provides inferior and inadequate school facilities in the integrated neighborhoods in the south part of the county," R3-70-19, text at n.52, R. Exc. 70, at 19, text at n.52. The trial court found that appellants "offered no credible evidence to support this allegation," R3-70-20, R. Exc. 70, at 20, see id., R3-70-20 to -21, -23 n.63 and accompanying text, R. Exc. 70, at 20-21, 23 n.63 and accompanying text, and appellants have apparently abandoned this claim on this appeal. - 21 - the school system’s methodology was non-discriminatoiy. It found that the alternative suggested by appellants - planning new school construction on the basis of a south St. Petersburg "neighborhood" area that they arbitrarily define - "would likely result in projections of little value, assuming that the school board would continue to be bound to the desegregation requirements of the court order" (R3-70-16, R. Exc. 70, at 16). At best, appellants’ approach would require the school system to redraw its student assignment plan from scratch every year; at worst, it would have the system simply disregard the desegregation objectives of the District Court’s Orders entirely. This Court and the predecessor Fifth Circuit have long condemned such an approach. E.g., Mills v. Polk County Board of Public Instruction, 993 F.2d 1485, 1494 (11th Cir. 1993) (attached hereto as Appendix "A"15); United States v. Board of Public Instruction of Polk County, 395 F.2d 66, 69 (5th Cir. 1968). Appellants focus upon an area of the school district whose bounds they themselves defined but which has never been operated - either administratively or for purposes of student assignment - as a "separate, 15See 11th Cir. R. 36-2. (This opinion was withdrawn from publication after it appeared in the Advance Sheets for Vol. 993 F.2d, from which version the attached copy was made.) - 22 - identifiable and unrelated uni[t]" of the school district, see Keyes v. School District No. 1, Denver, 413 U.S. 189, 203-04 (1973). Within that area of St. Petersburg — Central Avenue south to 30th Avenue South, from Tampa Bay west to 49th Street - they claim that the school district discriminates by refusing to build new schools sufficient to house all of the students who live within the defined boundaries. They cite no decision of this or any other Court which enunciates or applies such a principle. Compare, e.g., Davis v. Board of School Commissioners of Mobile, 402 U.S. 33, 38 (1971) (error to treat portion of school district separately in fashioning desegregation plan); Mills v. Polk County Board of Public Instruction, infra Appendix "A" at 1494 (same, citing Little Rock School District v. Pulaski County Special School District, 839 F.2d 1296, 1305 (8th Cir.), cert, denied, 488 U.S. 869 (1988)). Indeed, to the extent that the area upon which appellants focus is delineated along traditional racial residential boundaries, the precedents require that they be disregarded, not entrenched, in the desegregation process. E.g., Henry v. Clarksdale Municipal Separate School District, 409 F.2d 682, 687-88, text at n.9 (5th Cir.), cert, denied, 396 U.S. 940 (1969). Thus, for example, appellants argue that there has been discrimination because "[s]ince 1958 the school board has closed two elementary schools in - 23 - this south St, Petersburg area [which they define], Roser Park Elementary and Wildwood Elementary, without replacing these schools within the [same] area" (Appellants’ Initial Brief, at 42 [transcript citations omitted]). Replacing that capacity on the same site or within the area of greatest minority concentration in the district, where these schools were located, would have been inconsistent with the district’s desegregation obligations. See United States v. Board of Public Instruction of Polk County, 395 F.2d at 69-70; Flax v. Potts, 450 F.2d 1118 (5th Cir. 1971) (granting injunction); id., 464 F.2d 865, 869 (5th Cir.) (discussing injunction), cert, denied, 409 U.S. 1007 (1972); Calhoun v. Cook, 430 F.2d 1174 (5th Cir. 1970) (granting injunction pending appeal). Moreover, as the District Court found, when these schools were closed "because of their age and condition . . . there was adequate capacity at adjacent schools in satisfactory condition to house the students who formerly attended these facilities." R3-70-22, R. Exc. 70, at 22.16 The District Court 16Appellants claim that "[t]he replacements for Roser Park and Wildwood Elementary were built in predominately white areas north of Central Ave. R4- 243" (Appellants’ Initial Brief at 42). This is a misrepresentation of the testimony. No replacements were built for either facility because their existing student populations could be absorbed in adjacent schools. Later population - 24 - correctly found that reassigning the Roser Park and Wildwood students to such schools was not discriminatory. R3-70-22, R. Exc. 70, at 22, citing Mitchell v. McCunney, 651 F.2d 183, 189 (3d Cir. 1981). Appellants rely in this Court, as they did below, upon the location of new schools within census tracts of certain racial compositions. See Appellants’ Initial Brief at 41 n.14, 43. The District Court explicitly rejected appellants’ census tract comparisons as unreliable and lacking in probative value. R3-70-24 n.67, R. Exc. 70, at 24 n.67.17 Far from contesting this characterization persuasively, appellants make no response at all, in effect conceding its accuracy. increase led to expansion of capacity at some of these adjacent schools, such as Woodlawn Elementary -- not to the construction of new facilities "north of Central Avenue." R4-243. 17Appellants’ data were presented by a lay witness, not an expert, see R4- 156 to -164, who was unaware of population variations among the census tracts in Pinellas County used to construct the data arrays, id. at 186, so that it is not possible to discern the relative need for additional construction from the charts introduced by appellants. Nor was the witness aware whether census tract and school attendance boundaries were the same, id. at 185. - 25 - As this brief discussion indicates, the District Court’s factual findings are not "clearly erroneous" but are well supported by the evidence introduced at the hearing. The court was eminently correct in determining that appellants had failed to "substantiate their allegations" or to prove discriminatory busing of black students, leading to the unremarkable conclusion that appellants have no right to intervene in this case. The proportions of black and white students transported for desegregation purposes in Pinellas County, which so concern appellants (and which also, as the District Court found, concern both the plaintiffs and the School Board, who have pursued practical steps to mitigate transportation burdens, see R3-70-9, -16 & n.45, R. Exc. 70, at 9, 16 & n.45) reflect the regrettable racial residential segregation which occurs in many formerly de jure segregated school systems. In bringing about desegregation of the district - which cannot be "limited to the walk-in school," Swann, 402 U.S. at 30 - such demographic patterns almost inevitably result in a greater proportion of students of one racial group or another being reassigned and/or transported. Indeed, in conditions of absolute residential segregation, the proportion of students of each race reassigned or transported is the reciprocal of its population representation, as the following discussion makes clear: - 26 - Consider two situations. In the first, a school district operates two schools (each with capacity for eight hundred students), which are separated by an attendance boundary line (such as a traditional racial demarcation line, a railroad track). On one side of the line, eight hundred white students reside; on the other, eight hundred black students. Each school is 100% one- race. Before desegregation, the district-wide enrollment is 50% white, 50% black. To bring about complete desegregation, four hundred white students and four hundred black students are reassigned across the boundary, producing two schools, each with a 50% white, 50% black enrollment. The situation is represented graphically below: Total Enrollment: 800W, 800 B Reassignments: 400 W ---------> (50% of total white enrollment) < ---------400 B (50% of total black enrollment) In this simple example, where total enrollment proportions are equal but After Desegregation ■ School A ■ School B 400 W 400 W 400 B 400 B Before Desegregation - 27 - residential segregation is extreme, the same proportions of black and white student populations (50%) are reassigned for desegregation. However, in the second situation, the district-wide enrollment is 75% white and 25% black, not too different from Pinellas County. On one side of the "railroad track" boundary is a school with eight hundred black students. On the other side of that boundary are three all-white schools, each with eight hundred students and their own attendance areas. To achieve complete desegregation in this system, again the same numbers of white and black pupils can be reassigned: six hundred white pupils (two hundred from each previously all-white school) to the formerly all-black school and two hundred black pupils to each of the three formerly all-white schools. The result is that all four schools will have 75% white, 25% black enrollments mirroring the system-wide composition: - 28 - Total Enrollment: 2400W, 800 B Before Desegregation ■ School A • School B 800 W 800 B • School C 800 W ■ School D 800 W Reassignments: After Desegregation ■ School A * School B 600 W 200 B 600 W 200 B ' School C 600 W 200 B ■ School D 600 W 200 B 600 W ---------> (25% of total white enrollment) < ---------600 B (75% of total black enrollment) Here the proportions of black and white students subject to reassignment or transportation are strikingly different from the first example. The six hundred black pupils reassigned make up 75% of the system’s black enrollment - precisely the reciprocal of the 25% black total enrollment figure. And the six hundred white pupils reassigned constitute only 25% of the total white enrollment - again the reciprocal of the 75% white system-wide population. Actual pupil reassignments and transportation for desegregation purposes in a real, not hypothetical, school system such as that of Pinellas - 29 - County, of course, are more complex undertakings affected by a variety of factors including school locations, availability of transportation routes, and residential patterns that do not reflect the total segregation assumed in the examples given above.18 Nevertheless, it is undisputed in this case that there is still substantial residential concentration of the county’s minority population within St. Petersburg, specifically in the southern portion of St. Petersburg. (See the summary of 1980 census tract populations by racial proportion at R3- 70-24 n.67, R. Exc. 70, at 24 n.67.) Against this background, the proportions of pupils who must be transported for desegregation purposes is comprehensible. Indeed, it is precisely because of the implications of such demographic patterns that, as the District Court noted, "[t]he federal courts generally recognize that busing burdens may be unequal and the courts will not infer discriminatory busing policies unless one group bears the entire burden of busing for desegregation purposes." R3-70-8, R. Exc. 70, at 8 (emphasis added and footnote omitted). Appellants apparently wish to have 18Indeed, according to appellants’ own estimates, black students make up approximately 18% of the total enrollment in Pinellas County schools but only 54% of all black pupils are transported for desegregation, not the "pure segregation" reciprocal of 82%. See Appellants’ Initial Brief at 44. - 30 - equal proportions of white and black students transported, even though this would require far more busing to achieve the existing level of system-wide desegregation. No federal court has ever required such a step.19 19Courts have, on occasion prohibited the closing of black schools to avoid reassigning white students to them as part of the desegregation process, and have required that they be operated on a desegregated basis by assigning white pupils to them. E.g., United States v. Texas Education Agency, 532 F.2d 380, 395 (5th Cir.), vacated on other grounds sub nom. Austin Independent School District v. United States, 429 U.S. 990 (1976), reaff’d on remand, 564 F.2d 162 (5th Cir. 1977); Lee v. Macon County Board of Education, 448 F.2d 746, 753-54 (5th Cir. 1971); Bell v. West Point Municipal Separate School District, 446 F.2d 1362 (5th Cir. 1971); Green v. School Board of Roanoke, 316 F. Supp. 6 (W.D. Va. 1970), aff’d sub nom. Adams v. School District No. 5, Orangeburg, 444 F.2d 99 (4th Cir.), cert, denied, 404 U.S. 912 (1971); but see Harris v. Crenshaw County Board of Education, 968 F.2d 1090 (11th Cir. 1992) (approving closing of formerly black school that suffered enrollment losses in part as a result of school board’s action allowing white students to transfer out of school zone). There is no claim in this case that Roser Park or Wildwood Elementary Schools were closed to avoid assigning white pupils to them. - 31 - For all of the reasons given above, the District Court did not err in concluding that appellants had failed to substantiate the allegations common to the 1990 (Schramek and Griffith) and 1994 (Flakes) motions to intervene and therefore that they had established no right to intervene in this lawsuit. II The District Court Did Not Err In Denying The Balance of Flakes’ Motion20 2°This Court reviews for abuse of discretion the District Court’s decisions to deny permissive intervention to Flakes, Meek v. Metropolitan Dade County, 985 F.2d 1471 (11th Cir. 1993); Manasota-88, Inc. v. Tidwell, 896 F.2d 1318. 1323 (11th Cir. 1990), to limit the March 28,1994 evidentiary hearing to issues common to Flakes’ and Schramek and Griffith’s motions to intervene, Walker v. Anderson Electrical Connectors, 944 F.2d 841, 844 (11th Cir. 1991), cert. denied’ __ U .S.___ , 122 L. Ed. 2d 352 (1993); Randolph County v. Alabama Power Company, 784 F.2d 1067, 1072 (11th Cir. 1986), cert, denied, 479 U.S. 1032 (1987), and to enforce its post-hearing scheduling order requiring timely notice of Flakes’ desire to pursue the additional issues raised in his motion, LaMarca v. Turner, 995 F.2d 1526, 1547 (11th Cir. 1993). - 32- The remaining issues on this appeal that are addressed by plaintiffs- appellees must be considered in the context of the specific procedural posture in which they were raised and disposed of below. Adequacy of Class Representation (1) Failure to pursue appellants’ claims of discrimination Appellants present two sorts of arguments about the adequacy of class representation. The first are "plan-specific"; that is, appellants assert that the failure of plaintiffs’ counsel to pursue appellants’ specific allegations of discriminatory practices by Pinellas County school authorities in the administration of the desegregation plan demonstrates that representation of the class on whose behalf this litigation was brought was inadequate, justifying intervention by Flakes. Only plan-specific allegations were contained in the 1990 Schramek and Griffith motion to intervene, Rl-7/30/90 Motion to Intervene, and they were repeated in the 1994 Flakes motion, Rl-42-8 to -9 H c)l) to c)8), R. Exc. 42, at 8-9 U c)l) to c)8). These plan-specific allegations were the subject of evidentiary presentation at the March 28, 1994 hearing and were considered 21Plaintiffs-appellees take no position on the question whether costs were properly taxed against appellants. See supra note 4. - 33 - by the District Court in making its September 7, 1994 Order. In such circumstances, the District Court’s denial of intervention under Rule 24(a) necessarily implies that plaintiffs’ counsel did not provide inadequate representation to the class when they declined to pursue, as lacking in merit,22 the discrimination claims unsuccessfully advanced by appellants. (2) Conduct of the litigation by class counsel Appellants’ other adequacy-of-representation claims relate to the fact that the original minor plaintiffs no longer attend Pinellas County public schools, Rl-42-3 11 7, R. Exc. 42, at 3 11 7, and to the conduct of this litigation by plaintiffs’ counsel, who (it is alleged, inter alia), "are white men [who] have been acting independent of any client representing the Plaintiff Class with regard to client decisions . . . see Rl-42-4 II 10, R. Exc. 42, at 4 If 10. These claims were first introduced to this litigation in February, 1994, when Flakes’ "Motion to Amend the Named Plaintiff Class Representatives and Motion to Intervene as a Party Plaintiff (Rl-42, R. Exc. 42) was filed. By that time - more than eighteen months after this Court’s 1992 remand - as previously noted (see supra p. 4), discovery had been undertaken and the existing parties had entered into a stipulation that identified the issues to be tried at the 22See supra note 5. - 34 - March 28 hearing (Rl-39). which had been rescheduled at least twice. The District Court accordingly, and with the agreement of Flakes7 counsel, limited the scope of that hearing to matters common to both the original Schramek and Griffith motion to intervene and to Flakes’ February, 1994 motion, thus excluding appellants’ non-plan-specific adequacy-of-class-representation claims.23 Appellants do not assign this limitation as error, nor could they 23See, e.g., R4-8 (Appellants’ counsel, Mr. Reese: "Mr. Flakes has also raised issues that go beyond Mr. Schramek’s motion. And by stipulation that is not being the - the part that goes beyond Mr. Schramek’s motion is not being heard today"). When Flakes’ counsel nevertheless sought to raise such claims at the hearing, the Court ruled that they would not be considered: [THE COURT:] But, in any event, I think we ought - for the moment there are plaintiffs described, the present counsel are their lawyers, and maybe we can bring that up another day, but Mr. MacDonald seems to have made a dispositive point, at least as to any alleged ethical misprision on behalf of the plaintiffs’s counsel, and that is that you stipulated that those issues would be for another hour. MR. REESE: All right. THE COURT: So if we could take that as sort of a governing stipulation for the purpose of today, if you want to attack these gentlemen on another day, then maybe we’ll find some time for it. But I think we ought to get on with the issues that will affect the onset of the classroom in August. We’re getting near the end of the day for that, it seems to me. - 35 - succeed on such a claim in light both of their consent to it and of the trial courts broad powers to control their dockets and schedule cases efficiently. See, e.g., Walker v. Anderson Electrical Connectors, 944 F.2d at 843-44. (a) Flakes cannot raise these issues on appeal because of his failure to raise them timely below and his abandonment of any claim of error in his brief. ___________________________ The District Court did not neglect the claims asserted for the first time in Flakes’ February, 1994 motion. After ruling upon the matters encompassed by the hearing, in its September 7, 1994 Order the Court explicitly put Flakes upon notice that he must timely inform the Court if he desired to litigate those additional claims: If Flakes desires to pursue the issues of his motion for intervention that were not addressed in this order, Flakes shall file a motion no later than September 30, 1994, identifying any issues for which he requests an evidentiary hearing. R-70-26, R. Exc. 70, at 26. Flakes did not do so. Instead, on September 20, 1994, he filed a Rule 59(e) motion to alter or amend the District Court’s September 7 Order, R3- MR. REESE: I guess then my response would be there is no need for counsel for the three attorneys for the plaintiffs to remain. (R4-18 to -19; see infra p. 46 [citing R3-56].) - 36 - 72; see R. Exc. B. The Rule 59 motion raised seven matters which, Flakes asserted, were "overlooked or misapprehended" by the trial court in making its September 7 Order. See Appellants’ Initial Brief at 15-16. The first of these, the contention that "absence of a Rule 23(a) plaintiff class representative entitles Flakes to become a named plaintiff as a matter of law," id. at 15, simply restated one of the non-plan-specific adequacy-of-class- representation claims raised in Flakes' February, 1994 motion. Since such claims had been explicitly excluded from the purview of the March, 1994 hearing with Flakes’ acquiescence and were "not before the court for disposition at th[e] time" of its September, 1994 ruling, R3-70-3, R. Exc. 70, at 3, this was not a proper ground for Rule 59 relief. Cfi O’Neal v. Kennamer, 958 F.2d 1044, 1047-48 (11th Cir. 1992) (no abuse of discretion in denying Rule 59(e) motion advancing entirely new legal theory that would require exhaustive factual and legal redeterminations to reach conclusion whether judgment should be modified). Inclusion of this ground in Flakes’ Rule 59 motion also did not comply with the District Court’s requirement that Flakes specify "issues of his motion for intervention that were not addressed in th[e September 7] order" that Flakes "desire[d] to pursue" and "identify any [such] issues for which he requests an evidentiary hearing." - 37 - Flakes' counsel apparently recognized the problem of this default. On October 24, 1994 Flakes filed a "Statement Concerning Need for Further Evidentiary Hearing (R3-84). In this extraordinary pleading. Flakes did not argue that his failure to comply with the explicit terms of the Court's September 7 Order occurred because of excusable neglect. Instead, and directly contrary to the in-court stipulation of his counsel, supra note 23, Flakes argued that his Motion to Alter or Amend was based upon his contention that the Prehearing Stipulation of issues for the March 28 evidentiary hearing did not limit or defer the issue of the lack of a Plaintiff Class client representative because, as a matter of law, intervention into a class action under Rule 23(d) and 24 requires a determination of the adequacy of representation by the current Plaintiff Class client representatives. . . . The issue of the absence of any Plaintiff Class client representative must be considered and be a part of any determination on a motion to intervene by a member of the Plaintiff Class, [citations omitted.] R3-84-3 to -4 11 9. Flakes' "Statement" further asserted that the filing of his Rule 59(e) motion tolled the September 30 deadline to advise the Court of remaining issues for which Flakes requests an evidentiary hearing. Accord, Fed.R.App.P. 4(a)(4). Second, it advised the Court pursuant to the Court’s September 7 Order that Flakes desired to pursue the issue of the lack of Plaintiff Class client representatives, [footnote omitted.] R3-84-4 f 11. On March 4, 1996, the District Court endorsed the first page of both the Rule 59(e) motion and the "Statement Concerning Need for - 38 - Further Evidentiary Hearing" as "Denied" (R3-3/4/96 Endorsed Orders. R. Exc. B, C). In his Notice of Appeal, Flakes stated that he was appealing from, inter alia, the District Court’s March 4, 1996 Order which "b) denied Flakes statement concerning need for further evidentiary hearing." However, no claim of error regarding this action of the court below is listed among the Statement of Issues presented on this appeal in Flakes’ opening brief, see Appellants’ Initial Brief at 1. The body of the brief mentions the "Statement Concerning Need for Further Evidentiary Hearing" only twice, and in both instances the mention is purely descriptive.24 There is no discussion at all of this subject in the "Argument" section of the brief, nor any explanation why the District Court’s failure to reach Flakes’ non-plan-specific issues or to hold another evidentiary hearing was an abuse of discretion under the circumstances of this case. Any claim of error regarding those matters has, therefore, been abandoned. Sunamerica Corporation v. Sun Life 24At p. 2, the District Court’s March 4 endorsement of the "Statement" as "Denied" is identified as one of the orders "at issue" on this appeal. At pp. 16- 17 of the brief, in the "Statement of the Facts section, the contents of the "Statement" and the trial court’s disposition of it are described. - 39 - Assurance Company of Canada, 77 F.3d at 1325; Fitzpatrick v. City of Atlanta. 2 F.3d 1112, 1113 n.l (11th Cir. 1993); Continental Technical Services, Inc. v. Rockwell International Corporation, 927 F.2d 1198, 1199 (11th Cir. 1991) ("Appellant’s simple contention that California law controls does not present an argument based on California law. See Ordower v. Feldman, 826 F.2d 1569. 1576 (7th Cir. 1987) (issue raised perfunctorily without citation to authority constitutes waiver of issue)"). Even if the question were not waived, Flakes’ contentions as set forth in his "Statement" are without merit. The tolling effect of a timely Rule 59(e) motion is limited to the period within which a notice of appeal must be filed. Fed. R. App. P. 4(a)(4)(C). There is no statute or rule which similarly provides that a timely Rule 59(e) motion shall toll all due dates established by trial court scheduling or other orders, and Flakes cites no authority for this remarkable proposition. The District Court did not abuse its discretion in declining to reopen the matter to take up the other issues raised in Flakes’ February, 1994 motion, in light of his failure to comply with the September 7 Order, see, e.g., LaMarca v. Turner, 995 F.2d at 1548. For these reasons, the non-plan-specific adequacy-of-representation arguments in Flakes’ brief (Appellants’ Initial Brief, at 22-29) are not - 40 - properly before this Court. The District Court properly did not pass upon them because Flakes failed to file an appropriate motion by September 30. 1994 advising the Court that he "desire[d] to pursue the issues of his motion for intervention that were not addressed in thje September 7] order . . . [and] identifying any issues for which he requested] an evidentiary hearing." R-70- 26, R. Exc. 70, at 26. Haygood v. Auto-Owners Insurance Company, 995 F.2d 1512, 1515 (11th Cir. 1993) ("Our review is limited to errors allegedly made by the trial court, not those made by counsel"); cf Formby v. Farmers and Merchants Bank, 904 F.2d 627, 632-33 (11th Cir. 1990) (failure to make timely request for jury trial on "willfulness" of ADEA violation constituted waiver), (b) Flakes’ non-plan-specific claims are, in any event, without merit.______ ____________________________________ Were this Court to consider the claims, it still must affirm the ruling below. Flakes’ arguments rest upon a fundamentally flawed view of the responsibilities of counsel in class action litigation. This is a certified class action. Accordingly, it does not become moot when the named minor plaintiffs leave the school system. Sosna v. Iowa, 419 U.S. 393 (1975); accord Franks v. Bowman Transportation Company, 424 U.S. 747, 753-57 (1976); see also United States Parole Commission v. Geraghty, 445 U.S. 388 (1980); Graves - 41 - v. Walton County Board of Education, 686 F.2d 1135, 1138-40 (5th Cir. Unit B 1982); compare Board of School Commissioners of Indianapolis v. Jacobs, 420 U.S. 128 (1975). "When the District Court certifie[s] the propriety of the class action, the class of unnamed persons acquirejs] a legal status separate from the interest asserted by [the named representatives]." Sosna, 419 U.S. at 399. Class counsel's obligation to represent the interests of the certified class fairly and adequately continues in such a situation, whether or not there is a named class representative with party status at any given moment during the progress of the case. Indeed, while intervention or substitution of named class representatives is permitted, see, e.g., Graves v. Walton County, appellants have cited no decision requiring such addition of new named representative plaintiffs in a certified class action. There is no such decision.25 "'All of the cases that appellants do cite: General Telephone Company of the Southwest v. Falcon, 457 U.S. 147 (1982); Mularky v. Holsum Bakery, Inc., 120 F.R.D. 118 (D. Ariz. 1988); Georgia State Conference of Branches of NAACP v. Georgia, 99 F.R.D. 16 (S.D. Ga. 1983); and Lynch Corporation v. M il Liquidating Company, 82 F.R.D. 478 (D.S.D. 1979) involved requests for class certification at the outset of the litigation, not the question whether, following certification, repetitive substitution of named parties is required. - 42 - The reason is that counsel’s obligation to the class as a whole is independent of and paramount over, his or her obligation to the named representatives. It is counsel’s position as an officer of the Court and his conformance to the ethical duties imposed upon the Bar, rather than whether or not there is a named class representative with party status at any given moment, that assures the protection of class members’ interests. This principle has most often been recognized in the context of settlement: The courts have recognized that the duty owed by class counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to approval of a settlement which the trial court finds to be fair and reasonable. "Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable." Kincade [v. General Tire & Rubber Company], 635 F.2d [501,] 508 [(5th Cir. 1981); Flinn v. FMC Corp., 528 F.2d 1169, 1174 n.19 (4th Cir. 1975), cert, denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d (1976) ("Appellants do not argue, nor may they under the authorities, that the assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable."); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir.), cert, denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974); Robertson v. National Basketball Ass’n, 72 F.R.D. 64 (S.D.N.Y.1976); Purcell v. Keane, 54 F.R.D. 455 (E.D.Pa.1972). Accord, Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978), cert, denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). Parker v. Anderson, 667 F,2d 1204, 1211 (5th Cir. Unit A 1982). - 43 - In Parker, the Court of Appeals affirmed the approval of a class action settlement "granted over the objection of all but one of the eleven named plaintiffs as well as over the objections of a number of class plaintiffs," id. at 1207. Similarly, in County of Suffolk v. Long Island Lighting Company, 710 F. Supp. 1428, 1435 (E.D.N.Y. 1989), aff’d in pertinent part, 907 F.2d 1295, 1325 (2d Cir. 1990), the court approved a settlement over the objections of named plaintiffs, noting that "[i]n light of her fiduciary responsibility to the class, counsel was under a duty to ignore any special interests of the objecting class representatives in favor of the overall, general interests of the class as a whole." It is precisely because counsel fulfill this function to the certified class as a whole that the formal party status of one or more named class representatives is not essential, and hence does not compel the allowance of intervention to Flakes or any other individual. Indeed, the history of appellants’ attempts to intervene underscores the point. Schramek and Griffith moved to intervene as "representatives ofj a class of white and black parents whose children are enrolled at Lakewood High School and Bay Point Elementary School in Pinellas County, Florida," R1-7/30/90 Motion to Intervene-1. They did not seek to intervene as representatives of the original - 44 - class of all black schoolchildren eligible to attend Pinellas County public schools. Although Flakes’ February, 1994 motion did not contain a similar recitation, the focus of his concern is personal: Q. Is it your intention, if you’re granted intervention, to challenge the order? Or is your intention to enforce the order? A. The - it is not my intent to try and challenge the order at all. I'm more concerned about the implementation of the order, concerning my neighborhood. I think there is enough latitude in the way the current order is written such that it allows families not to be disbursed within one household and also it allows enough latitude to at least maintain some consistency in the neighborhood. (R4-66.) Were Mr. Flakes made a named class representative by order of the court, there might well be the very conflict between his personal interests and the interests of the class as a whole noted in Parker and County of Suffolk. In this case, Flakes levelled serious, albeit unverified, charges of professional misconduct against counsel who have, for many years and without compensation, represented the interests of the plaintiff class in this action. See, e.g., R1-42-4 If 10, R. Exc. 42, at 4 11 10 (counsel act contrary to Florida Bar Rules); Rl-42-6 If 13, R. Exc. 42, at 6 If 13 (counsel have entered into compromises without notice to clients in violation of fiduciary duty).26 In 26In an accompanying Memorandum of Law, Flakes asserted, inter alia, that "Norman J. Chahkin [sic], Esq. receives compensation from the NAACP - 45 - response to these charges, counsel for plaintiffs retained their own attorneys to represent them with respect to any determinations regarding professional misconduct, see R3-56 (separate Response of attorneys for class counsel to Flakes’ motion). They also responded in detail to the allegations of Flakes' motion (Rl-53; R2-56), including by submitting the sworn affidavit of Norman J. Chachkin explaining the role of and relationship among local counsel and attorneys from the Legal Defense Fund in handling this litigation on behalf of the plaintiff class (see Exhibit "B" to Rl-53, especially pp. 8-10). Flakes has never sought to controvert the factual representations contained either in plaintiffs’ pleadings or in Chachkin’s affidavit. Rather, he chose to rest his claim to intervention upon the legal argument discussed above: that counsel in a certified class action must add new class Legal Defense Fund, Inc. which has interests which may materially limit Mr. Chachkin’s representation of Flakes," that local counsel "have taken instructions concerning client decisions from the NAACP Legal Defense Fund, Inc., a third party," and that "[a]ll three of the legal counsel of record [for plaintiffs] have their own personal interests in retaining their unfettered personal control of this litigation." Rl-43-7 to -8. - 46 - representative parties. See R3-84-4 U 12 ("Flakes believes the record admission of the lack of a Plaintiff Class client representative entitles him to the right to intervene without further evidentiary hearing").27 Under those circumstances - and particularly in light of its conclusions that "[t]he parties have worked effectively to carry out th[e school desegregation] decrees in the face of transition in neighborhoods such as Flakes’ and other practical problems," R3-70-16, R. Exc. 70, at 16 (footnote omitted), and that "all parties are engaged earnestly in good faith deliberation to achieve the appointed objective . .. [through] careful and reasoned planning, complete with practical compromise between that which is presently desirable and that which is presently feasible," R3-70-26 to -27, R. Exc. 70, at 26-27 - the District Court’s disposition of Flakes’ post-trial motions was neither an abuse of its discretion nor inconsistent with legal doctrine governing class action lawsuits. 27Although plaintiffs-appellees do not agree with Flakes’ legal argument, they advised the District Court in their Response to Flakes’ motion that they were prepared to substitute new class representatives as named parties in this litigation once the present controversy was resolved. See R1-53-23 to -24, R Exc. 53, at 23-24. - 47 - Permissive Intervention As we demonstrated in Argument I, the District Court properly concluded that appellants’ evidentiary showing was inadequate to establish a right to intervene under Fed. R. Civ. P. 24(a). The orders of which appellants here complain also denied permissive intervention to Schramek and Flakes28 under Fed. R. Civ. P. 24(b). See R-3-70-2 to -3, -25 to -26, R. Exc. 70, at 3. 25-26. In light of the broad discretion of the district courts in passing upon requests for permissive intervention, and of the inadequacies of proof offered in support of appellants’ claim to intervention as of right described in the District Court’s September 7 Order, there can be no serious argument that the court below acted outside the permissible scope of its authority in denying appellants’ motions to intervene insofar as they rested upon Rule 24(b). Worlds v. Department of Health and Rehabilitative Services, 929 F.2d 591, 595 (11th Cir. 1991), quoting 1C Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1913, at 376-77 (2d ed. 1986).29 28See supra note 1. 29In 1986, Wright, Miller & Kane wrote that "there apparently is only a single case in which an appellate court has reversed solely because of an abuse of discretion in denying permissive intervention." Wright, Miller & Kane § - 48 - 1923 at 516, citing Crumble v. Blumthal, 549 F.2d 462 (7th Cir. 1977). Our research has disclosed only one case in this Circuit which might be so characterized: Walker v. Jim Dandy Company, 747 F.2d 1360 (11th Cir. 1984). Even in that case, however, this Court did not direct that intervention should be granted. Because the district court there had denied permissive intervention as untimely without examining all of the four factors that must be considered in making a timeliness determination, see Stallworth v. Monsanto Company, 558 F.2d 257, 264-66 (5th Cir. 1977), this Court remanded for redetermination of the timeliness issue based upon consideration of all of the Stallworth factors. Walker, 747 F.2d at 1366-67. On remand, the district court undertook a complete analysis and again concluded that intervention should be denied as untimely. Rhoades v. Jim Dandy Company, 107 F.R.D. 31 (N.D. Ala. 1985). - 49 - Conclusion For the foregoing reasons, the Orders appealed from should be affirmed. Respectfully submitted, Enrique Escarraz, III 2121 5th Avenue North P. O. Box 847 St. Petersburg, FL 33731 (813) 327-6600 Roger W. Plata 216 Mirror Lake Drive P. O. Box 13903 St. Petersburg, FL 33733 (813) 823-9188 Elaine R. Jones Director-Counsel Norman J. Chachkin Gloria J. Browne NAACP Legal Defense and Educational Fund, Inc. 99 Fludson Street, 16th floor New York, New York 10013 (212) 219-1900 Attorneys for Plaintiffs-Appellees - 50 - Certificate of Service I hereby certify that on this (p th day of August, 1996, I served two copies of the foregoing Brief for Plaintiffs-Appellees upon counsel for the other parties to this appeal, by depositing the same in the United States mail, first-class postage prepaid, addressed as follows: Thomas W. Reese 2951 61st Avenue South St. Petersburg, FL 33712 Dyril L. Flanagan 2950 5th Avenue North St. Petersburg, FL 33713 Maree Sneed John W. Borkowski Hogan & Hartson L.L.P. 555 13th Street, N.W. Washington, D.C. 20004 John W. Bowen School Board of Pinellas County P. O. Box 2942 Largo, FL 34649 Norman J. Ctj&chkin - 51 - APPENDIX A MILLS v. POLK COUNTY BD. OF PUBLIC INSTRUCTION 1485 Cite as 993 F.2d 14SS (11th Clr. 1993) significant money damages, while the Union members received only the incidental benefit of potentially improved future treatment by the Union. Under the district court’s shift ing of fees to the Union, Plaintiffs would not be required to pay any greater portion of the attorney fees even though Plaintiffs received a substantially greater benefit. See Guidry, 882 F.2d at 944; Shimman, 744 F.2d at 1235. Such a result would allow Plaintiffs to be unjustly enriched at the expense of the Un ion membership; therefore, the court’s award of attorney fees under the common benefit exception cannot stand. Finally, we believe our interpretation of the common benefit exception is in keeping with the general policy of Alyeska that, in the absence of a statute or enforceable con tract, attorney fees should be awarded spar ingly. 421 U.S. at 264, 95 S .C t at 1625. As in Shimman, there was no injunctive relief obtained in this case to effect any changes in the Union’s practices or procedures. In stead, the benefit that the district court found inured to the union members was not “by direct operation of the judgment, but rather w[as] the result of a realization that the union would have to reform itself or risk exposure to further liability.” Shimman, 744 F.2d at 1235 n. 13. We agree with the Shim m an court that, although “[sjociety as a whole always benefits through general deter rence when the law is enforced,” id., allowing fee shifting based on such incidental benefits resembles the private attorney general ratio nale which was rejected by Alyeska. REVERSED and REMANDED. Herman Henry MILLS, Jr., a minor by Althea MILLS, his mother and next friend, et al., Plaintiff-Appellant, United States of America, Plaintiff-Intervenor, v. POLK COUNTY BOARD OF PUBLIC IN STRUCTION; Shelley Boone, Superin tendent of Public Schools; P.M. Fussell, Chairman, Polk County Board of Public Instruction; Ralph Durrance, Austin T. Race, Dora C. Phillips, and Fitzhugh Reed, as Members of the Polk County Board o f Public Instruction, Polk Coun ty Education Association, Defendants- Appellees. No. 92-2832. United States Court of Appeals, Eleventh Circuit June 9, 1993. Plaintiffs challenged plan for modifying attendance zones for elementary schools adopted by school board pursuant to consent order. The United States District Court for the Middle District of Florida, No. 63-150- CIV-T-23, Steven D. Merryday, J., ruled that plan was acceptable, and plaintiffs ap pealed. The Court of Appeals, Clark, Senior Circuit Judge, held that: (1) plan was not consistent with board’s affirmative duty to desegregate, and (2) district court erred in granting board’s request for one-year delay in implementation of transfer provisions of consent order. Reversed and remanded. 1. Schools ©=13(12) School board is obligated to eliminate one-race schools by taking affirmative action in form of remedial altering of attendance zones. 2. Schools ©=13(2) Ninety percent white population in ele mentary schools outside city, contrasted with average 55% white population in city schools, 1486 993 FEDERAL REPORTER, 2d SERIES rendered outlying schools racially identifi able. 3. Schools €=>13(4) School board’s obligation is to convert to school system without “white” school and “Negro” school, but just schools and there fore, school board must attempt to eliminate “white” schools as well as “black” schools. 4. Schools €=>13(12) Plan for modifying attendance zones for seven elementary schools adopted by school board following entry of consent order was not consistent with board’s affirmative duty to desegregate; board rejected three propos als, all of which would have resulted in great er desegregation than board’s plan, although board’s plan reduced black population at for merly all black school under dual system, it resulted in three racially identifiable “white” schools outside of city and three city schools with black populations of 48%, board’s plan resulted in underutilization of city schools and overcrowding of outlying white schools, and board rejected proposal that black chil dren in community north of city attend outly ing schools, thereby increasing black popula tions in those schools, and instead permitted these children to attend city schools, thereby effectively promoting segregation. 5. Schools €=>13(12) School board violates its duty to deseg regate if it fails to consider objective of de segregation in decisions regarding location and construction of new school facilities; in deed, in rendering such decisions, school board is obligated to seek means to eradicate vestiges of dual system. 6. Schools <Ss=13(4) There was no justification for school board’s position that its affirmative duty to desegregate elementary schools was limited to desegregating formerly all black school under dual school system and that it did not need to include “white” schools outside of city in its desegregation plan; approximately 27 years ago it was judicially determined that county’s entire school system was segregated and even if these outlying schools were sub sequently constructed, board could not carve them out and declare that they need not be part of desegregation plan, particularly when outlying schools appeared to be located in areas of white suburban expansion. 7. Schools ©=>13(17) School board could not accommodate overcrowding of white elementary school out side of city by use of mobile classrooms or otherwise to prevent sending white students to city schools that were not white. 8. Schools €=>13(4) School board may not accommodate overcrowding with use of mobile classrooms when to do so would have effect of earmark ing schools according to their racial composi tion. 9. Schools €=>13(19) School board bore burden of justifying continued existence of any one-race elemen tary schools, black or white. 10. Schools €=>13(4) Until school board can prove that stu dent attendance has reached unitary status by showing that current racial imbalances are not traceable, in proximate way, to prior violation, it is under affirmative duty to de segregate; that is, it is under affirmative duty to eliminate racially identifiable schools by using desegregation techniques approved by United States Supreme Court. 11. Federal Courts €=>724 Court of Appeals would examine wheth er district court erred in granting school board’s request for one-year delay in imple mentation of transfer provisions of consent order in school desegregation case, even though district court permitted delay for one school year only and it was not argued that Court of Appeals should enforce transfer provisions at this stage in school year; Court of Appeals would review issue because, con ceivably, school board could seek another delay and accordingly, issue was capable of repetition, yet evading review. 12. Federal Civil Procedure €=>2397.5 District court erred in granting school district’s request for one-year delay in imple mentation of transfer provisions of consent order entered in school desegregation case; school board did not even attempt to show 1487M ILLS v. POLK COUNTY BD. OF PUBLIC INSTRUCTION C ite as 993 F J d 1485 (11 th C lr. 1993) significant change in factual conditions or in the law so as to warrant modification of consent order and district court made no findings in this regard and board’s request for modification was made less than one month after consent order was entered and thus, board must have anticipated at time it entered into order that it would seek to delay implementation of order’s transfer provi sions. 13. Federal Civil Procedure @=1951 District court erred in accepting and, to extent it did so, considering ex parte commu nications, regarding plight of elementary stu dents, to which it referred in its final order in school desegregation case; while plight of children was relevant to case, evidence had to be presented to district court either through parties or through disinterested ex pert and, even if unsolicited, district court should have given parties notice of any ex parte communications that it received. ABA Code of Jud.Conduct, Canon 3, subd. A(4) (1990). 14. Federal Civil Procedure @=1951 Even if unsolicited, district court must give parties notice of any ex parte communi cation that it receives. 15. Federal Civil Procedure @=1969 Federal judges must take care not only to avoid impropriety, but also to avoid even appearance of impropriety. Norman J. Chachkin, NAACP Legal De fense & Educational Fund, Inc., New York City, for plaintiff-appellant. Clarence A. Boswell, Jr., Bartow, FL, for defendants-appellees. Appeal from the United States District Court for the Middle District of Florida. Before KRAVITCH and BIRCH, Circuit Judges, and CLARK, Senior Circuit Judge. CLARK, Senior Circuit Judge: This school desegregation case involves the school system of Polk County, Florida. The first issue on appeal is from that part of the 1. 347 U.S. 483. 74 S.Ct. 686. 98 L.Ed. 873 (1954), district court order approving the School Board’s student assignment plan for the Bar tow area, consisting of seven elementary schools in and around Bartow, Florida. In formulating its plan, the Board failed to com ply with Supreme Court decisions that dic tate the methodology that must be followed by school boards formerly operating a dual system. The record indicates that the School Board’s plan will result in three racially iden tifiable “white” schools, in a substantial racial disparity between the schools within the city of Bartow and those immediately outside the city, and in an underutilization of the city schools and a corresponding overcrowding of the schools outside the city. The second issue on appeal is from that part of the district court order granting the School Board’s request to delay implementa tion of the intra-district transfer policy of the court approved consent order previously en tered. Prior to that consent order the School Board had regularly permitted trans fers in excess of 1000 or more students upon mere requests by parents. The consent or der in Para. I.E.2. prescribes a strict en forcement policy with respect to such trans fers. Finding that the district court erred with respect to both of these issues, we reverse. I. This litigation commenced in September 1963 when Herman Henry Mills, Jr., and other black children in Polk County, Florida, filed suit against the Polk County School Board seeking desegregation of the Polk County school system. In January 1965, the district court found that Polk County had continued to operate a racially segregated school system long after the Supreme Court’s decision in Brown v. Board o f Edu cation.1 The former Fifth Circuit confirmed this finding three years later,2 in an appeal taken by the United States, as intervenor, from a district court order declining to enjoin the School Board from constructing an ele mentary school in an all-black neighborhood.3 3. United States v. Board of Public Instruction of Polk County, Florida, 395 F.2d 66 (5th Cir. 1968). 2. See text accompanying note 32. 1488 993 FED ERAL REPORTER, 2d SER IES The former Fifth Circuit held that the in junction should have issued because the School Board had failed to undertake any analysis to determine the impact of the new school on desegregation.4 The court stated: The appellee contends that inasmuch as the planning for the school was made with out reference to race, there was no con scious effort on the part of the Board to perpetuate the dual system. This does not meet the requirements of the court order. There is an affirmative duty, overriding all other considerations with respect to the locating of new schools, except where in consistent with “proper operation of the school system as a whole” to seek means to eradicate the vestiges of the dual system. It is necessary to give consideration to the race of the students. It is clear from this record that neither the state board nor the appellee sought to carry out this affirma tive obligation, before proceeding with the construction of this already planned school.6 Thus, the School Board was instructed 25 years ago that it must show that its plans for the school system were consistent with its affirmative duty to desegregate. Following the appeal just described, the district court thereafter had to issue injunc tive orders requiring the defendants to reme dy their violations on May 9,1969, August 18, 1977, August 7, 1978, and April 15, 1988. Additionally, the former Fifth Circuit in June 1978 considered an appeal from a September 1975 district court order approving the exclu sion of the first and second grades from the School Board’s desegregation plan for one of the elementary schools.6 The former Fifth Circuit reversed the district court, directing that “the desegregation plan affecting Be- thune Elementary School be modified to eliminate the racial imbalance existing in the first and second grades.” 7 This current ap peal is from still another attempt on the part of the Polk County School Board to evade its affirmative obligations to desegregate its school system. In January 1992, plaintiffs filed a motion for further relief. Plaintiffs alleged that, 4. Id. at 70. 5. Id. at 69 (footnote omitted). “[ijn 1991, approximately 28 years [after the litigation commenced], . . . the Polk County school system remains substantially segre gated.” Plaintiffs alleged that the School Board had not only failed to meet its affirma tive obligations to eliminate the vestiges of the segregated system, but had also “inten tionally maintained and continued to operate racially identifiable schools and otherwise ha[d] continued to discriminate against mem bers of the plaintiff class on the basis of race in the operation of the Polk County public schools. . . . ” Among other things, plaintiffs requested that the district court grant them injunctive relief requiring the School Board to desegregate the entire Polk County school system no later than August 1992. Before the district court ruled on plaintiffs’ motion, the parties entered into extensive negotiations in an attempt to resolve their differences about how to eliminate the vestig es of the prior dual school system in Polk County. These negotiations culminated with the execution of a comprehensive agreed- upon consent order, which was submitted for approval to the district court on May 7, 1992, along with a joint motion requesting entry of the consent order. The district court held a hearing on the joint motion on June 5, 1992, and entered the consent order, with minor revisions, on July 9, 1992. The consent order addresses, among many other things, pupil assignments; specifically, it provides for the establishment of magnet schools and for the modification of attend ance zones to accommodate these magnet schools. As to the Bartow area elementary schools in particular, the consent order pro vides: c. Attendance zones for elementary schools in the Bartow area shall be modi fied effective for the 1992-93 school year to accommodate the operation of magnet schools as provided above, to establish a middle school form of grade organization, and to facilitate desegregation. The School Board shall present a complete written description of such attendance zones, together with projections of the re sulting school enrollments, to the other 6. Mills v. Polk County Board of Public Instruc tion, 575 F.2d 1146 (5th Cir.1978). 7. Id. at 1147. M ILLS v. POLK COUNTY BD. OF PUBLIC INSTRUCTION 1489 C ite «* 993 F O d 1485 ( l l t h C l r . 1993) parties (through counsel) no later than June 1,1992. If either of the other parties objects to the implementation of the pro posed attendance zones, the parties shall consult and confer in an effort to resolve their differences. Should agreement not be reached, the School Board shall not implement any modifications to which ob jection has been made without first obtain ing the approval of the Court.8 The consent order also covers school con struction; faculty and staff assignment, re cruitment, and promotion; specialty pro grams, such as the gifted program and spe cial education; student discipline; conditions of school facilities; enforcement of attend ance zones, including address verification and residence documentation to ensure that stu dents are attending the school serving the attendance area within which they actually reside; and student transfer policies. As to the transfer policies, the consent order specifically limits the School Board’s authority to grant transfers permitting stu dents to attend schools other than those that serve the attendance zone within which the students reside.9 Plaintiffs allege that such transfers have historically been used to im pede desegregation. Upon entry of the consent order, the School Board became obligated to formulate a plan for modifying the attendance zones for the seven elementary schools in the Bartow area as described above. These seven schools are only a very small segment of the large Polk County school system.10 Of these seven schools, four are located within the city of Bartow: Bartow, which was 42% black during the 1991-92 school year; Stephens, which was 49% black in 1991-92; Floral Ave nue, which was 22% black in 1991-92; and Gibbons Street, the formally all-black school under the dual system, which was 61% black in 1991-92. Three of the schools are located immediately outside Bartow: Highland City, which was 9% black in 1991-92; Eagle Lake, 8 . Consent order at 18, 1 1.A.9.C. 9. Consent order at 29-35, 1 1.E. 10. Polk County is the fourth largest county in the State of Florida and has a land area of 1,823 square miles and a population of 405,382 as of the 1990 Census. The World Almanac, 1992, p. 111. which was 8% black in 1991-92; and Alturas, which was 15% black in 1991-92. These three schools are located northwest, north east, and east of the city respectively. Al though most of the black population in the Bartow area appears to be located within the city, there is a black community known as Gordonville/Gordon Heights located north of the city. In the 1991-92 school year, this community had 223 elementary schools stu dents; 153 of these students attended Ste phens, 66 attended Alturas, and five attended Highland City. Whereas the record before us is devoid of any evidence as to the specific distances between the seven schools, a School Board memorandum attached to one of the pleadings indicates that Highland City, one of the outlying schools, and Stephens, one of the city schools, are approximately five miles apart.11 In formulating its plan for the Bartow area elementary schools, the School Board had before it three proposals. The first proposal was prepared by the staff of the school sys tem. The staff noted that its objectives were to desegregate Gibbons Street, to equalize racial balances in Bartow to the extent prac ticable, and to equalize transportation for desegregation purposes between black and white communities. The staff recommended that the 223 students in Gordonville/Gordon Heights attend Eagle Lake (79 students), Alturas (72 students), and Highland City (72 students). The staff’s proposal results in black percentiles of between 34 and 38 in the city schools and of between 18 and 22 in the outlying schools. (See appendix to this opin ion.) At the conclusion of its proposal, the staff noted that, “[i]f more students need to be taken from Highland City, would recom mend Waterwood, where there are 34 stu dents (White)___” 12 The second proposal was from the Citizens Committee, which recommended “desegre gating Gibbons Street and also racially bal ancing the remaining six schools as well.” 13 11. Joint Explanatory Report of Disputed Issues, Exh. A at 2. 12. Id., Exh. C. 13. Id., Exh. A at 2. 1490 993 FEDERAL REPORTER, 2d SERIES To accomplish this goal, the Committee rec ommended moving 150 students from Ste phens to Eagle Lake and Alturas and moving 127 mostly white students from Highland City to Stephens. The Committee noted that the students involved in the latter move would be transported no more than five miles. The Committee’s proposal results in black percentiles of between 31 and 42 in the four city schools and of between 19 and 30 in the three outlying schools.14 (See appendix to this opinion.) The third proposal was from the Superin tendent, who rejected the Committee’s plan to move Highland City students to Stephens “because of his belief that Highland City is a separate community from Bartow.” 15 The Superintendent’s proposal results in black percentiles of between 33 and 42 in the city schools and of between 18 and 20 in the outlying schools.16 (See appendix to this opinion.) The School Board did not adopt any of these three proposals. Noting that the Gor- donville/Gordon Heights students had histori cally attended school in Bartow, the School Board adopted a plan permitting these stu dents freedom of choice to attend any of the seven schools in the area except Gibbons Street, provided that they would be permit ted to attend the city schools only as long as the percentage of black students in those schools did not exceed 48%. The School Board assumed that most of these students would choose to attend the city schools. The School Board’s plan results in black percen tiles of 33 at Gibbons Street and of 48 in the other three city schools, and of between 8 and 13 in the outlying schools.17 A chart showing the black percentiles and the utiliza tion, based on enrollment as a percentage of permanent capacity, for the seven schools under the various proposed plans follows this opinion as an appendix. Plaintiffs objected to the implementation of the plan adopted by the School Board, con tending that the Board had failed to meet its affirmative obligation to desegregate the ele mentary schools in the Bartow area. The 14. id. 15. Id., Exh. A at 3. 16. Id. parties could not reach an agreement as to the plan. Accordingly, on July 29, 1992, the parties filed with the district court a Joint Explanatory Report of Disputed Issues. Af ter briefly explaining the history of the plan, the parties stated: Plaintiffs and the United States have indicated to the School Board that they do not believe the plan meets the require ments of the Fourteenth Amendment or the Order that the Court has entered. They contend that the level of actual de segregation which is likely to result from implementation of this plan, as revealed in the projections prepared by the school dis trict, is unacceptable in light of the alter natives which are clearly available to the school district In particular, they note that under the proposal adopted by the School Board, some elementary schools would have substantially higher minority student enrollments and be very substan tially under capacity (especially Bartow Elementary and Floral Avenue elementary Schools) while other facilities would be sig nificantly overcrowded with low minority enrollments (especially Highland City Ele mentary School—more than 50% over its capacity—and Alturas and Eagle Lake Elementary Schools). [Footnote omitted.] The School Board’s position is that the plan the Board has adopted is a reasonable measure that is adequately responsive to the requirements of the Order without causing undue disruption to established patterns of school attendance.18 The parties also set forth a second issue that they had been unable to resolve: the School Board sought to delay for one year imple mentation of the strict attendance zone en forcement and transfer policies set out in the consent order, and plaintiffs opposed the de lay. The parties requested that the district court resolve these two issues. They noted that they believed the matters could be re solved on the papers and exhibits submitted but that they were prepared to present testi mony at a hearing if the court so desired. 17. Id., Exh. A at 3-4. 18. Joint Explanatory Report of Disputed Issues at 3-4. MILLS v. POLK COUNTY BD. OF PUBLIC INSTRUCTION 1491 C ite&« 993 FM 1485 ( l l th C ir . 1993) Without holding a hearing, the district court resolved both issues in favor of the School Board. The district court began by noting: The Court also received correspondence from Neal L. O’Toole of Frost & O’Toole, P.A., on behalf of the Waterwood Home Owner’s Association of Polk County, in which correspondence counsel addressed the plight of 34 children residing in the Waterwood Subdivision of Highlands City. The Court has received numerous tele phone calls and letters from interested in dividuals and groups.19 Noting that the beginning of a new school year was close at hand, the district court stated that “both the Court and the public are entitled to consider matters of such im portance on a more contemplative basis and on a more relaxed schedule.” Then, without any further discussion of the two matters at issue, the district court (1 ) held that the plan adopted by the School Board would be in force for the 1992-93 school year, (2) granted the School Board’s request for a delay in the imposition of the consent order’s transfer policies, and (3) chastised the parties for leaving these matters to the “last moment” before the start of the school year.20 Plain tiffs appealed. II. A. Other than these facts recited above, the record before us is devoid of any explanation of the School Board’s actions, and the district court made no findings in this regard. At 19. District Court order of August 18, 1992, at 1. 20. In a memorandum filed after the entry of the district court's order, the United States respond ed as follows: The United States is most concerned about having the opportunity to clarify the bona fides of its course of conduct over the last several months. We are particularly concerned to reaffirm that as of the June 5 hearing and even up through the entry of the July 8 Order ap proving the proposed consent decree, both the nature and scope of the Bartow dispute was wholly unforeseeable. The defendants' actions in approving the set- dement, and in particular the Lakeland admin istrative area's rezoning, marked a dramatic break from the Board's long history of both active and passive resistance to desegregation. The agreement fairly accommodated both the constitutional rights of members of the Polk oral argument, however, counsel for the School Board did shed some light on the Board’s approach to the rezoning of the Bar tow area elementary schools. Counsel ex plained that the Board saw their task as limited to desegregating Gibbons Street, the formerly all-black school under the dual school system; the Board undertook to do this by using only the students within the city.21 Counsel admitted that the Board’s plan effected very little change to the racial compositions of the three outlying schools. He explained that these schools had their own black populations (albeit very small) and that the Board therefore viewed them as “desegregated.” In essence, the Board’s po sition is that, because the outlying schools were not built as “black” schools under the dual system, as was Gibbons Street, the Board has no obligation to desegregate them. Thus, the Board apparently did not even consider using students presently attending the outlying schools to effectuate desegrega tion. Counsel argued that the Board had corrected its constitutional violation merely by desegregating Gibbons Street In the Board’s brief on appeal, which does not as explicitly articulate the Board’s posi tion as did counsel in oral argument the Board purports to place on plaintiffs the burden of proving that its plan results in a constitutionally unacceptable level of deseg regation. In support of its argument that plaintiffs cannot meet this burden, the Board points out that, under its plan, none of the city schools have a black population of great- community to be free of racial discrimination in the operation of the school system and the legitimate concerns of local organs of govern ment to exercise maximal autonomy consistent with sound principles of non-discrimination. The Board affirmed its interest in attaining unitary status as soon as possible. The United States had no reason to anticipate or believe that the Board's very next action that could have advanced it towards unitary status would instead, in our view, repudiate the sound and lawful principles which governed the negotia tion and adoption of the consent order. Memorandum Concerning Scheduling and Sub sequent Case Activities of August 25, 1992, at 2. 21. Counsel failed to point out that the Board’s plan permits the 223 black students in the Gor- donville/Gordon Heights community north of the city to attend city schools, rather than assigning these students to the three predominantly white outlying schools, as the staff had proposed. 1492 993 FED ERAL REPORTER, 2d SE R IE S er than 48%. The Board conveniently ig nores that the outlying schools have white populations averaging approximately 90%, that one of those schools is overcrowded to the extent of operating at 158% capacity, and that three of the city schools are underuti lized. Thus, the Board’s position is that, while it may be under an obligation to deseg regate Gibbons Street, the historically black school, and to attempt to racially balance the other city schools, it is under absolutely no obligation to even consider using students presently attending the outlying schools to effectuate desegregation, notwithstanding that these outlying schools are 90% white. [1] The Board has a fundamental misun derstanding of its affirmative duty and its burden of proof under Brown v. Board of Education and its progeny. Twenty-five years ago, the Supreme Court declared that school boards are “clearly charged with the 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.” 22 The Court mandated that school boards “convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.” 23 Three years later, the Supreme Court made clear that a school board’s affirmative duty included the elimination, to the extent practi cable, of racially identifiable schools: The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegre gation and will thus necessarily be con- 22. Green v. County School Board o f New Kent County, Virginia, 391 U.S. 430, 437-38, 88 S Ct 1689, 1694, 20 L.Ed.2d 716 (1968). 23. Id. at 441, 88 S.Ct. at 1696. 24. Swann v. Charlotte-Mecklenburg Board o f Ed ucation, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281 28 L.Ed.2d 554 (1971). 25. Id. at 28, 91 S.Ct. at 1282. 26. Courts have applied different percentages in determining whether a school is racially identifi able as white or minority. See Estes v. Metropoli tan Branches o f Dallas NAACP, 444 U.S. 437 442, 100 S.Ct. 716, 718, 62 L.Ed.2d 626 (1980) (Powell, J„ dissenting from dismissal of writs of certiorari) (noting application of 75% figure): Tasby V. Wnght, 713 F.2d 90, 91 n. 2 (5th Cir. 1983) (“Throughout this litigation, we have de cerned with the elimination of one-race schools. No per se rule can adequately embrace all the difficulties of reconciling the competing interest involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority’s proposed plan for conversion from a dual to a unitary system contem plates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scru tinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their p art24 The Court made clear that a school board does not fulfill its affirmative duty merely by adopting a racially neutral school assignment plan when such a plan results in one-race schools. A school board is obligated to elimi nate one-race schools by taking “affirmative action in the form of remedial altering of attendance zones.” 25 [2-4] Under the Board’s plan in this case, the three outlying schools will have, on the average, white student populations of approx imately 90%. These schools are, then, clear ly racially identifiable; that is, they are “white” schools.26 Nevertheless, the Board fined as a one-race school' any school that has a student body of 'approximately 90% or more students being either anglo or combined minority races.' ”); Morgan v. Nucci, 831 F.2d 313, 320 (1st Cir. 1987) (declining to decide whether 80% or 90% figure is more appropriate); Riddick v School Board of City o f Norfolk, 784 F.2d 521, 533 n. 13 (4th Cir.) (noting school board's use of 70% figure), cert, denied, 479 U.S. 938, 107 S.Ct. 420, 93 L,Ed.2d 370 (1986); see also Tasby v. Estes, 517 F.2d 92, 104 (5th Cir.) ("The objective of reducing the proportionate share of a racial group s composition of the student population of a particular school to just below the 90% mark is short of the Supreme Court's standard of conver sion from a dual to a unitary system.”), cert denied. 423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 271 (1975). A 90% white population, contrasted with the average 55% white population in the city schools, renders the outlying schools racially identifiable. MILLS v. POLK COUNTY BD. OF PUBLIC INSTRUCTION 4493 Cite u 993 F J d 1««5 (11th Clr. 1993) has made absolutely no attempt to demon strate that these “white" schools are “not the result of present or past discriminatory ac tion on their p art” 27 Indeed, the record before us indicates that these “white” schools may be the result of present discriminatory action. As the Supreme Court said in Green, “the availability to the board of other more promising courses of action may indicate a lack of good faith; and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method.” 28 In this case, the Board rejected three proposals, all of which would have re sulted in greater desegregation than the Board’s plan. The Board’s plan results in black populations in the three outlying schools of between 8 and 13 percent, while the three rejected proposals would have re sulted in black populations in those schools of between 18 and 30 percent The Board’s plan also results in three city schools that are 48 percent black, in an area that is only 28 percent black; by contrast, the three reject ed proposals would have resulted in city schools with black populations of between 33 and 42 percent Finally, the Board rejected the staffs proposal that the 223 black chil dren in the Gordonville/Gordon Heights com munity north of the city attend the three outlying schools, which would have increased the black populations in those schools. Rath er, the Board decided to permit these 223 black children to attend the city schools, all of which already had substantial black popu lations. This decision by the Board, which effectively promotes segregation, is directly contrary to the Board’s position that children residing in the city should attend city schools and children residing outside the city should attend the outlying schools. These facts il lustrate the Board’s discriminatory intent in the assignment of elementary school students in the Bartow area. 27. In their brief on appeal, the Board ignores these “white” schools, arguing that their plan is appropriate because it does not result in any "racially identifiable black schools.” The School Board's obligation is to convert to a school sys tem “without a white’ school and a 'Negro' school, but just schools,” Green, 391 U.S. at 442, 88 S.Ct at 1696. Quite obviously, the School Board must attempt to eliminate "white" schools as well as "black" schools. The Board attempts to divert our attention from these facts by pointing out that it has succeeded in desegregating Gibbons Street, the historic black school. The Board’s posi tion is that its “affirmative duty” is limited to the desegregation of Gibbons Street and that it has no obligation to desegregate the three outlying schools. This position is apparently grounded upon the Board’s view that state- imposed segregation was practiced in the city schools but not in the outlying schools.28 The Board purports to place on plaintiffs the burden of proving that its obligation extends beyond achieving racial balance in the city schools. The Board’s position is similar to one re jected by the Supreme Court twenty years ago. In Keyes v. School District No. I,30 the City of Denver school district attempted to limit its affirmative duty to desegregate to one geographical area of the school system. The school district argued that although the district court had made a finding of state- imposed segregation in that one area, the plaintiffs had failed to prove state-imposed segregation in the remainder of the school system. The Supreme Court rejected the school district’s position, holding that a finding of intentionally segregative school board actions in a meaningful por tion of a school system, as in this case, creates a presumption that other segregat ed schooling within the system is not ad ventitious ---- In that circumstance, it is both fair and reasonable to require that the school authorities bear the burden of showing that their actions as to other seg regated schools within the system were not also motivated by segregative intent31 The Supreme Court concluded by stating that, if the school district had operated a dual school system, it “has the affirmative duty to desegregate the entire system ‘root and branch.’ ” 32 29. The Board does not specify, and the record before us does not indicate, whether the outlying schools were constructed before or after the Board ceased operating a dual system. 30. 413 U.S. 189. 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). 31. 413 U.S. at 208-09, 93 S.Ct. at 2697-98 (em phasis added). 28. Green. 391 U.S. at 439, 88 S.Ct. at 1695. 32. Id. at 213, 93 S.Ct. at 2700 (emphasis added). 1494 993 FED ERAL REPORTER, 2d SER IES [5,6] Early in the history of this litiga tion, the former Fifth Circuit determined that, prior to 1965, Polk County’s entire school system was segregated: [T]here can be no question but that all school children of Polk County were, until the 1965-66 school year, attending school under a dual system based on race . . . . 33 Thus, the Board cannot now argue that the three outlying schools somehow escaped the segregated system. Even if these outlying schools were constructed after 1965, the School Board may not carve them out and declare that they need not be a part of the desegregation plan. It is well established that a school board violates its duty to deseg regate if it fails to consider the objective of desegregation in decisions regarding the lo cation and construction of new school facili ties.34 Indeed, in rendering such decisions, a school board is obligated to “seek means to eradicate the vestiges of the dual system.” 35 Federal courts have traditionally been suspi cious of school boards that “build[ ] new schools in the areas of white suburban expan sion farthest from Negro population cen ters” 34 because such building schemes tend to perpetuate, rather than eradicate, the dual system.37 The three outlying schools in this case appear to be located in areas of white suburban expansion. We hold that there is absolutely no justification for the Board’s position that its affirmative duty is limited to the desegregation of Gibbons Street and that it need not include the outlying schools in its desegregation plan. [7 ,8] In short, the School Board’s plan is indefensible. The plan results in greater segregation than would have any of the three proposals that the Board rejected. The 33. United States v. Board o f Public Instruction of Polk County, Florida, 395 F.2d at 68. 34. Harris v. Crenshaw County Board of Edu cation, 968 F.2d 1090, 1095 (11th Cir.1992). 35. United States v. Board of Public Instruction of Polk County, 395 F.2d at 69. 36. Swann, 402 U.S. at 21, 91 S.Ct. at 1278 37. See id. at 21, 91 S.Ct. at 1279 ("In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are Board’s plan results in three racially identifi able “white” schools and in three city schools with black populations of 48 percent In deed, other than reducing the black popula tion at Gibbons Street, the Board’s plan does not at all improve the racial compositions of the seven schools in the Bartow area. Com pounding the racial disparity, the Board’s plan results in an underutilization of the city schools and overcrowding of the three outly ing “white” schools, particularly Highland City. This court recently held, “The Board’s failure to consider the objective of desegre gation in its efforts to alleviate overcrowding violates its affirmative duty to desegre gate.” 38 A school board may not accommo date overcrowding, for example, with the use of mobile classrooms, when to do so would have the “effect of earmarking schools ac cording to their racial composition___” 39 Thus, the School Board in this case clearly may not accommodate the overcrowding of Highland City, by the use of mobile class rooms or otherwise, to prevent sending white students to city schools that are not “white.” 40 The School Board also may not defend its plan merely by relying on the concept of “neighborhood school zoning” or by assert ing, without justification or substantiation, that students should not cross the city limits to attend school. In Little Rock School Dis trict, the Eighth Circuit reversed the district court’s approval of a plan that divided the school district into three sectors, with one sector having a black enrollment of 56-55% and another having a black enrollment of only 11-18%. The court said: As a general rule, the geographic sepa ration of black and white residential areas not used and do not serve to perpetuate or re established the dual system.”). 38. Jacksonville Branch, NAACP v. Duval Countv School Board, 883 F.2d 945, 952-53 (11th Cir. 1989). 39. Keyes, 413 U.S. at 202, 93 S.Ct. at 2694. 40. In formulating its proposed plan, the staff considered moving 34 white students residing in the Waterwood community from Highland City to another school, presumably one of the city schools. The School Board's rejection of the alternative is further evidence of its discriminato ry intent. M ILLS v. POLK COUNTY BD. OF PUBLIC INSTRUCTION 1495 Cite as 993 FJd 14*5 (UthClr. 1993) within the same school district does not release a constitutional violator from the duty to desegregate the district’s schools as a unit.41 Neighborhood and geographic lines of sepa ration are factors that the School Board can and should consider in making student at tendance decisions, but it cannot rely on these factors to justify the maintenance of racially identifiable schools. [9] The School Board’s plan is unaccepta ble, first, because it was formulated and adopted while the Board operated under a fundamental misunderstanding of its duty to desegregate and, second, because it results in one-race schools. Thus, on remand, the dis trict court must instruct the School Board to formulate a new student assignment plan that is consistent with the Board’s affirma tive duty to desegregate. The decision of the former Fifth Circuit in Tasby v. E stes42 is instructive here. In that case, the former Fifth Circuit reversed the district court’s de cision approving a plan that resulted in a number of one-race schools and remanded the case “for the formulation of a new stu dent assignment plan and for findings to justify the maintenance of any one-race schools that may be a part of that plan.” 43 The court stated: We cannot properly review any student assignment plan that leaves many schools in a system one race without specific find ings by the district court as to the feasibili ty of [the techniques of desegregation ap proved by the Supreme Court in Swann ]. There are no adequate time-and-distance studies in the record in this case. Conse quently, we have no means of determining whether the natural boundaries and traffic 41. 839 F.2d at 1305. See also Davis v. Board of School Commissioners o f Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971) (' neighborhood school zoning" is not per se adequate to meet the remedial responsibilities of local boards: district court may and should consider all available techniques including re structuring attendance zones and both contigu ous and noncontiguous attendance zones). 42. 572 F.2d 1010 (5th Cir. 1978). cert, granted, 440 U.S. 906, 99 S.Ct. 1212, 59 L.Ed.2d 454 (1979), cert, dismissed. 444 U.S. 437, 100 S.Ct. 716, 62 L.Ed.2d 626 (1980). 43. Id. at 1018. considerations preclude either the pairing and clustering of schools or the use of transportation to eliminate the large num ber of one-race schools still existing.44 The record before us indicates that the School Board in this case should succeed in eliminating ail one-race elementary schools in the Bartow area; that is, the School Board should develop a plan that results in a racial balance among the seven elementary schools in the Bartow area such that none of the four city schools are racially identifiable “black” schools and none of the three outlying schools are racially identifiable “white” schools. The School Board bears the burden of justifying the continued existence of any one-race schools, black or white, in the Bar tow area.45 [10] In their brief on appeal, the Board relies heavily on Freeman v. Pitts, This reliance is misplaced for two reasons. First, the issue in Freeman was whether the dis trict court could relinquish its supervision and control over those aspects of the school system that had achieved unitary status if other aspects of the system had not achieved unitary status. In this case, the School Board has not even alleged, much less at tempted to show, that any aspect of the Polk County school system has achieved unitary status. Second, the Board’s implication that it need not take affirmative steps to desegre gate unless plaintiffs show that the system is not unitary is contrary to the law: If the unlawful de jure policy of a school system has been the cause of the racial imbalance in student attendance, that con dition must be remedied. The school dis trict bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation.46 44. Id. at 1014. 45. See text accompanying note 24. See also Lit tle Rock School District v. Pulaski County Special School District No. 1, 839 F.2d 1296, 1306 n. 13 (8th Cir.) ("The District Court erred in implicitly placing the burden on the [intervenors] to dis prove the effectiveness of the [school board’s] plan."), cert, denied, 488 U.S. 869, 109 S.Ct. 177, 102 L.Ed.2d 146 (1988). 46. Freeman v. Pitts,----U.S.------, ----- , 112 S.Ct. 1430. 1447. 118 L.Ed.2d 108 (1992). See also Tasby v. Wright, 713 F.2d at 94 ("We should not have to explain at this late date who has the 1496 993 FED ERAL REPORTER, 2d SE R IE S Until the Board can prove that student at tendance has reached unitary status by showing that the current racial imbalances “are not traceable, in a proximate way, to the prior violation,” it is under an affirmative duty to desegregate under the principles an nounced in Brown v. Board o f Education and its progeny; that is, it is under an affirmative duty to eliminate racially identifiable schools by using the desegregation techniques ap proved in Swann. B. [11,12] Plaintiffs also argue that the dis trict court erred in granting the Board’s request for a one-year delay in the imple mentation of the transfer provisions of the consent order.47 We agree. The district court’s grant of the School Board’s request to delay implementation of these provisions amounted to a modification of the consent order. Recently, in Rufo v. Inmates o f the Suffolk County Jail,** the Supreme Court set out the standard to be applied in institutional reform litigation when one of the parties to a consent decree seeks modification of that decree. The Court held: [A] party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree. A party seeking modification of a con sent decree may meet its initial burden by showing either a significant change in fac tual conditions or in law. Modification of a consent decree may be warranted when changed factual conditions make compliance with the decree substan tially more onerous___ Modification is also appropriate when a decree proves to be unworkable because of unforeseen ob stacles, [citations omitted], or when en forcement of the decree without modifica- burden of proving that a current condition of racial segregation is not a vestige of the past."). 47. The district court permitted the delay for the 1992-93 school year only. Although plaintiffs do not argue that we should enforce the transfer provisions at this stage in the 1992-93 school year, we review this issue because, conceivably, the School Board could seek another delay. Ac tion would be detrimental to the public interest, [citation omitted]. Ordinarily, however, modification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree.49 Here, the School Board did not even attempt to show “a significant change in factual con ditions or in the law,” and the district court made no findings in this regard. Moreover, the School Board’s request for modification of the transfer provisions was made less than one month after the district court entered the consent order; thus, the School Board must have “anticipated at the time it entered into” the consent order that it would seek to delay the implementation of the transfer pro visions of this order. Accordingly, the dis trict court erred in granting the School Board’s requested modification. On remand, the district court shall order that the Board implement the intra-district transfer policies of the consent order, set out at Para. I.E .2 of that order, in the 1993-94 school year. C. [13-15] Finally, plaintiffs complain about the district court’s apparent reliance on ex parte communications; specifically, in its fi nal order, the district court acknowledged having been informed of the “plight” of stu dents living in the Waterwood community and having received “numerous telephone calls and letters from interested individuals and groups.” There is no indication in the record that the district court attempted to inform counsel for any of the parties of these communications. This is consistent with plaintiffs’ counsel’s representation at oral ar gument that he was unaware of the commu nications until after the district court had entered its final order. The district court clearly erred in accepting and, to the extent cordingly, the issue is "capable of repetition, yet evading review." Southern Pacific Terminal Co. V. I.C.C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). 48. — U.S.----- , 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). 49. — U.S. at ----- . 112 S.Ct. at 760. MILLS v. POLK COUNTY BD. OF PUBLIC INSTRUCTION 1497 C iteM 993 F.2d 1485 (11th Cir. 1993) it did so, considering the communications to which it referred in its final order. The Code of Judicial Conduct provides: A judge should accord to every person who is legally interested in a proceeding, or the person’s lawyer, full right to be heard ac cording to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications on the mer its or procedures affecting the merits of a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceedings before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.50 While the “plight” of the children in the school system is certainly relevant in any school desegregation case, the evidence must be presented to the district court either through the parties or through a disinterest ed expert, as provided in the judicial conduct canon quoted above. Moreover, even if unso licited, the district court must give the par ties notice of any ex parte communication that it receives. Federal judges must take care not only to avoid impropriety, but also to avoid even the appearance of impropriety. III. For reasons stated above, the district court’s order is REVERSED and the case is REMANDED for further proceedings con sistent with this opinion. APPENDIX COMPARISON OF 1991-92 ENROLLMENTS AND UTILIZATION, AND PROJECTED 1992-93 ENROLLMENTS AND UTILIZATION UNDER ALTERNATIVE ZONING PLANS, BARTOW AREA ELEMENTARY SCHOOLS School Permanent Capacity 1991-92 Staff Proposal Citizens Committee Superin tendent School Board %U* % B** %U % B %U % B %U % B %U % B Bartow 480 83% 42% 84% 38% 45% 42% 63% 40% 72% 48% Stephens 675 93% 49% 66% 34% 73% 31% 66% 39% 77% 48% Floral Av. 550 108% 22% 77% 38% 79% 41% 71% 42% 78% 48% Gibbons Street 400 94% 61% 99% 35% 100% 33% 100% 33% 100% 33% Eagle Lake 575 99% 8% 106% 20% 117% 22% 111% 20% 103% 13% Highland City 400 140% 9% 127% 22% 123% 19% 156% 18% 158% 11% Alturas 350 120% 15% 116% 18% 133% 30% 142% 19% 107% 8% TOTAL 3430 103% 28% 93% 28% 93% 28% 93% 28% 93% 28% *% U - Utilization (enrollment or projected enrollment as a percentage of permanent capaci ty) Note: In 1991-92, schools served grades K-6; under all plans, schools serve grades K-5. **% B = Black enrollment 50. Code of Judicial Conduct. Canon 3 A(4) (1990) (currently 3B(7)). See also Politte v. Unit ed States. 852 F.2d 924, 929 n. 8 (7th Cir.1988) ("the ex pane contact permitted by [the district court judge], while made with good intentions, created a situation which unnecessarily called into question the impartiality of the federal courts"); Rinehan v. Brewer. 561 F.2d 126, 132 (8th Cir. 1977) (district court judge's undisclosed consultation with physician who had examined the defendant denied the defendant due process).