Bradley v. Pinellas County School Board Brief for Plaintiffs-Appellees

    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).