109 F.3d 680 (11th Cir. 1997), 95-9149, DeKalb County School Dist. v. Schrenko

Docket Nº:95-9149.
Citation:109 F.3d 680
Party Name:DeKALB COUNTY SCHOOL DISTRICT, on its own behalf and on behalf of the children in the DeKalb County School District; Norma Bergman; Mike Kelly; Terry Morris; Elizabeth Andrews; Lyman D. Howard; Phil McGregor, et al., Plaintiffs-Appellees, Cross-Appellants, v. Linda SCHRENKO, in her official capacity as Superintendent of Schools for the State of Geo
Case Date:April 07, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 680

109 F.3d 680 (11th Cir. 1997)

DeKALB COUNTY SCHOOL DISTRICT, on its own behalf and on

behalf of the children in the DeKalb County School District;

Norma Bergman; Mike Kelly; Terry Morris; Elizabeth

Andrews; Lyman D. Howard; Phil McGregor, et al.,

Plaintiffs-Appellees, Cross-Appellants,


Linda SCHRENKO, in her official capacity as Superintendent

of Schools for the State of Georgia; State Board of

Education for the State of Georgia; Willou Smith, William

R. Grow, Edward B. Andrews; the Department of Education for

the State of Georgia; the State of Georgia; Zell Miller,

in his official capacity as Governor of the State of

Georgia; John Oxendine, in his official capacity as

Comptroller General of the State of Georgia; Steven N.

McCoy, in his official capacity as Director of the Fiscal

Division of the Department of Administrative Services of the

State of Georgia; Larry D. Thompson; Johnny Isakson;

Brenda Fitzgerald; Palmira Braswell; Phillip A. Wilheit,

Sr.; E.G. Meypohm; Barbara Archibald,

Defendants-Appellants, Cross-Appellees.

No. 95-9149.

United States Court of Appeals, Eleventh Circuit

April 7, 1997

Page 681

[Copyrighted Material Omitted]

Page 682

Alfred L. Evans, Jr., Senior Asst. Atty. Gen., Atlanta, GA, for defendants-appellants.

Alfred A. Lindseth, Judith A. O'Brien, Sutherland Asbill & Brennan, Atlanta, GA, for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON, Circuit Judge, and KRAVITCH and HENDERSON, Senior Circuit Judges.


The DeKalb County School District, the members of the DeKalb County Board of Education, and several individuals brought this action against the State of Georgia and its Governor, the State Department of Education, the State Board of Education and its members, the State School Superintendent, and several other state officials to recover transportation and program costs incurred by the plaintiffs because of the desegregation litigation involving the DeKalb County School District's former dual public school system. The United States District Court for the Northern District of Georgia awarded the plaintiffs the desegregative transportation costs they sought and ordered the State of Georgia to fund those future transportation expenses. The district court disallowed, however, the plaintiffs' recovery of the costs of their "majority to minority" transfer 1 and magnet school desegregation programs. The state defendants appeal the district court's adverse ruling on the transportation issue, and the DeKalb County plaintiffs filed a cross-appeal to the district court's rejection of their claim for their programmatic costs. For the reasons stated in this opinion, we reverse the district court's judgment granting transportation costs to the plaintiffs and affirm its ruling in favor of the defendants denying the plaintiffs' recovery of their costs incurred in the other desegregation undertakings.


  1. The Desegregation Litigation.

    DeKalb County, Georgia, is a suburban area adjacent to and east of Atlanta. 2 The DeKalb County Board of Education ("DCBE") operates the DeKalb County School System ("DCSS"), the schools within the DeKalb County School District, which, at all times relevant to this case, was the largest school district in the State of Georgia. Consistent with state law and its own policies and those promulgated by the State Board of Education and the State Department of Education, the DCSS historically operated a segregated, dual system of education with separate schools for black and white students. In 1954, the Supreme Court of the United States declared segregated schools unconstitutional in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and the following year ordered all such segregated school districts to desegregate with "all deliberate speed," Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955). Those rulings notwithstanding, the DCSS did not commence its desegregation efforts until 1966 when it implemented a "freedom of choice" plan, pursuant to which some black students attended formerly de jure white schools. 3

    Page 683

    In 1968, the Supreme Court decided Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), in which the Court held that, if freedom of choice plans failed to adequately end the unlawful segregation of a school district, other means must be utilized to achieve that purpose. Within two months, a class of black students filed suit against the DCSS. In June, 1969, the United States District Court for the Northern District of Georgia entered an order which abolished the freedom of choice plan and enjoined the DCSS from further discrimination on the basis of race. The court ordered the DCSS to close all remaining de jure black schools and to establish a neighborhood school attendance policy. The court retained jurisdiction to ensure compliance with its order. See Pitts v. Cherry, C.A. No. 11946 (N.D.Ga. June 12, 1969).

    The parties did not seek any modification of the 1969 order or request additional relief until 1975 when the plaintiffs complained that DCSS had violated the earlier plan. In 1976, the district court ordered the DCSS to expand its "majority to minority" ("M to M") transfer system of assignment, pursuant to which a student could transfer from any school in which his or her race was in the majority to a school in which that race was in the minority, by providing free transportation to the students, and to reassign faculty and staff members so that the racial percentages at each school would approximate those in the system at large. In the late 1970's, the district court considered several plan modifications, not relevant to this litigation, requested by the DCSS.

    In 1983, the plaintiffs sought additional relief in the district court. 4 In an order entered following a hearing on the plaintiffs' request, the district court, apparently relying on its 1969 order in the case, asserted that the DCSS had been converted from a dual to a unitary school system in that year. The plaintiffs appealed to this court, which held that the district court had improperly declared the DCSS to be unitary without notifying the plaintiffs and conducting a hearing on that issue. Pitts v. Freeman, 755 F.2d 1423 (11th Cir.1985).

    In January 1986, the DCSS filed a motion seeking final dismissal of the case, and the district court conducted a three-week bench trial in July, 1987 to determine whether the system had indeed achieved unitary status. In an order entered June 30, 1988, the district court denied the DCSS's motion, concluding that vestiges of the dual system remained in staff assignments, resource allocation and quality of education. The court found, however, that the system had become unitary with regard to student assignments, transportation, physical facilities and extracurricular activities. Accordingly, the court decided that no further relief was necessary in those areas. The district court certified its order for immediate appeal pursuant to 28 U.S.C. § 1292(b), and both sides sought review in this court. 5

    The appellate panel affirmed the district court's judgment that the DCSS had not fulfilled its responsibilities with respect to faculty and staff assignments but reversed its finding that the DCSS had met its obligations in the assignment of students. The court also held that a school system could not be declared unitary until it had maintained racial equality for a period of three years in all of the categories identified by the Supreme Court in Green. 6 The court, therefore, determined that the DCSS was not being operated as a unitary system. Pitts v.

    Page 684

    Freeman, 887 F.2d 1438, 1450 (11th Cir.1989).

    The DCSS petitioned the Supreme Court for review. In 1992, the Supreme Court reversed this court, holding that a district court is permitted to withdraw judicial supervision with respect to discrete categories in which the school district has achieved compliance with a court-ordered desegregation plan. See Freeman v. Pitts, 503 U.S. 467, 471, 112 S.Ct. 1430, 1436, 118 L.Ed.2d 108 (1992). According to the Court, "in the course of supervising desegregation plans, federal courts have the authority to relinquish supervision and control of school districts in incremental stages, before full compliance has been achieved in every area of school operations." Id. at 490, 112 S.Ct. at 1445. 7

    With respect to the case before it, the Court held "the Court of Appeals did err in holding that, as a matter of law, the District Court had no discretion to permit DCSS to regain control over student assignment, transportation, physical facilities, and extracurricular activities, while retaining court supervision over the areas of faculty and administrative assignments and the quality of education, where full compliance had not been demonstrated." Id. at 492, 112 S.Ct. at 1446. Turning to the question whether continuing judicial control over student attendance was necessary to achieve compliance in other areas of the system's operations, the Court noted that the district court, not having its analysis before it, did not have the opportunity to make specific findings and conclusions on this aspect of the case and stated that "[f]urther proceedings are appropriate for this purpose." Id. at 498, 112 S.Ct. at 1449.

    Complying with the Supreme Court's mandate, this court remanded the case to the district court with the following instructions:

    The issues to be considered by the district court should include, but not necessarily be limited to, faculty and staff assignments (which may or may not involve a...

To continue reading