179 F.3d 453 (6th Cir. 1999), 96-3603/96-3604, Reed v. Rhodes

Docket Nº:96-3603/96-3604
Citation:179 F.3d 453
Opinion Judge:MERRITT, Circuit Judge.
Party Name:ROBERT A. REED, et al., Plaintiffs-Appellants, v. JAMES A. RHODES, et al.; CLEVELAND BOARD OF EDUCATION; OHIO STATE BOARD OF EDUCATION; OHIO STATE SUPERINTENDENT (96-3603/3604); CLEVELAND CITY SCHOOL DISTRICT; OHIO DEPARTMENT OF EDUCATION (96-3604), Defendants-Appellees
Attorney:James L. Hardiman, HARDIMAN, BUCHANAN, HOWLAND & TRIVERS, Cleveland, Ohio, for Appellants. Margaret A. Cannon, KELLEY, McCANN & LIVINGSTONE, Cleveland, Ohio, Dale F. Kainski, LAW FIRM OF DALE F. KAINSKI, Cleveland, Ohio, for Appellees. James L. Hardiman, HARDIMAN, BUCHANAN, HOWLAND & TRIVERS, Cle...
Judge Panel:Before: MERRITT and COLE, Circuit Judges; EDMUNDS, District Judge. [*] MERRITT, J., delivered the opinion of the court, in which EDMUNDS, D. J., joined. COLE, J., delivered a separate dissenting opinion. R. GUY COLE, JR., Circuit Judge, dissenting.
Case Date:June 10, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 453

179 F.3d 453 (6th Cir. 1999)

ROBERT A. REED, et al., Plaintiffs-Appellants,

v.

JAMES A. RHODES, et al.; CLEVELAND BOARD OF EDUCATION; OHIO STATE BOARD OF EDUCATION; OHIO STATE SUPERINTENDENT (96-3603/3604); CLEVELAND CITY SCHOOL DISTRICT; OHIO DEPARTMENT OF EDUCATION (96-3604), Defendants-Appellees

Nos. 96-3603/96-3604

United States Court of Appeals, Sixth Circuit

June 10, 1999

Argued: November 3, 1998.

As Corrected June 21, 1999.

Page 454

[Copyrighted Material Omitted]

Page 455

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 73-01300. Robert B. Krupansky, Circuit Judge.

ARGUED:

James L. Hardiman, HARDIMAN, BUCHANAN, HOWLAND & TRIVERS, Cleveland, Ohio, for Appellants.

Margaret A. Cannon, KELLEY, McCANN & LIVINGSTONE, Cleveland, Ohio, Dale F. Kainski, LAW FIRM OF DALE F. KAINSKI, Cleveland, Ohio, for Appellees.

ON BRIEF:

James L. Hardiman, HARDIMAN, BUCHANAN, HOWLAND & TRIVERS, Cleveland, Ohio, Thomas I. Atkins, Brooklyn, New York, David W. Whitaker, Beachwood, Ohio, for Appellants.

Margaret A. Cannon, KELLEY, McCANN & LIVINGSTONE, Cleveland, Ohio, Dale F. Kainski, LAW FIRM OF DALE F. KAINSKI, Cleveland, Ohio, Wanda Rembert Arnold, CLEVELAND BOARD OF EDUCATION, Cleveland, Ohio, Mark O'Neill, WESTON HURD FALLON PAISLEY & HOWLEY, Cleveland, Ohio, Christopher M. Culley, James G. Tassie, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellees.

Charles E. Hannan, Jr., CITY OF CLEVELAND LAW DEPARTMENT, OFFICE OF DIRECTOR OF LAW, Cleveland, Ohio, for Amicus Curiae.

Before: MERRITT and COLE, Circuit Judges; EDMUNDS, District Judge. [*] MERRITT, J., delivered the opinion of the court, in which EDMUNDS, D. J., joined. COLE, J., delivered a separate dissenting opinion.

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OPINION

MERRITT, Circuit Judge.

The primary question in this school desegregation case is whether the Cleveland public school system, which has approximately 75,000 students, should be declared " unitary" so that the federal courts no longer control student assignments and no longer require the zoning and busing of students to achieve racial balance.

In 1973, Plaintiffs, who represent a certified class of all African-American students in the Cleveland public school system and their parents, successfully filed suit, alleging that Defendants had pursued policies, customs, and practices in the operation of the city public school system in a manner that had the purpose and effect of perpetuating a segregated system. The litigants before this Court have worked together and with the district court for 25 years to desegregate the Cleveland public school system. Their efforts have brought success. As early as 1988, Dr. Gordon Foster, plaintiffs' nationally known expert on school desegregation, pronounced Cleveland to be the only majority black, large city system in the country which is totally desegregated, adding that the school system had put an end to any overt segregation or discrimination. On May 8, 1996, after years of overseeing educational programs designed to guarantee a good education for all students in the Cleveland School District, regardless of race, the district court entered a termination order (1) modifying the central remedial Consent Decree that had guided the district's pupil assignment strategies so as to eliminate all further student assignment obligations, (2) declaring that the school district had achieved partial unitary status as to student assignments, and (3) vacating all student assignment remedial orders. See Reed v. Rhodes, 934 F.Supp. 1533 (N.D. Ohio 1996) (hereinafter " Termination Order" ).

These appeals present several issues for this Court. First, we must address whether the district court erred by modifying its earlier decrees so as to eliminate inconsistent, rigid mathematical student assignment prescriptions in favor of a so-called " Vision 21" plan developed by the parties in 1993, a plan based on parental choice favored overwhelmingly by the populace of Cleveland, including the African American community. Second, we must examine whether, in granting the Defendant's Motion for Partial Unitary Status, the district court correctly applied the proper legal standards necessary for this determination. Third, we must review for a possible abuse of discretion the decision of Senior Circuit Judge Robert B. Krupansky, who assumed the management of this litigation in November 1994, not to recuse himself pursuant to 28 U.S.C. § 455(a) in the face of allegations of impropriety stemming from certain ex parte communications. Finally, we must address whether the district court abused its discretion in holding that Plaintiffs' attorneys in the instant matter should be remunerated at hourly rates " not exceeding the market rates necessary to encourage competent lawyers to undertake the representation in question." Coulter v. State of Tennessee, 805 F.2d 146 (6th Cir. 1986).

For the following reasons, we affirm the judgments of the district court in all respects.

I. BACKGROUND

A. Facts from 1975 to the Adoption of Vision 21 Plan in 1993

The history of this case is long and complicated. Two years after the suit was filed, the late Judge Frank J. Battisti presided over a lengthy bench trial in 1975 and 1976. On August 31, 1976, Judge Battisti dismissed the Complaint as to the Governor and the Attorney General, but concluded that the other Defendants, including

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the state board of education, had contributed, by both commission and omission, to an unconstitutional segregation of the Cleveland Public Schools. The court thus permanently enjoined Defendants " from discriminating on the basis of race in the operation of the public schools of the City of Cleveland, and from creating, promoting, or maintaining racial segregation in any school or other facility in the Cleveland Public Schools." Reed v. Rhodes, 422 F.Supp. 708, 797 (N.D. Ohio 1976), remanded without opinion, 559 F.2d 1220 (6th Cir. 1977), on remand to 455 F.Supp. 546 (N.D. Ohio), on remand to 455 F.Supp. 569 (N.D. Ohio 1978).

On February 6, 1978, the district court reaffirmed its earlier conclusion that Defendants were constitutionally liable for having maintained a de jure segregated public school system, and that these numerous constitutional violations had system-wide impacts entitling plaintiffs to a system-wide remedy. The court also issued a remedial order directing Defendants to implement, beginning in September 1978, a " comprehensive, system-wide plan of actual desegregation which eliminates the systematic pattern of schools substantially disproportionate in their racial composition to the maximum extent feasible." Reed, 455 F.Supp. 546 at 568. The court's broad remedial order required Defendants to desegregate administrative, supervisory and teaching personnel, to desegregate the schools, to develop creative educational curriculums, and to develop methods of monitoring compliance. The district court also ordered racial balance: " the racial composition of the student body of any school within the system shall not substantially deviate from the racial composition of the system as a whole." Id. at 608. The court then mandated that " [a] fifteen percent deviation from the percent ratio of the District as a whole is the maximum deviation that would be reasonable." Reed, 472 F.Supp. 615, 617 (N.D. Ohio 1979).

On August 11, 1980, the court appointed a Special Master (Mr. Daniel McCarthy), two experts on school desegregation (Dr. Gordon Foster of the University of Miami at Florida and Attorney Ted Mearns), and a certified accounting firm (Ernst & Ernst) to conduct a fiscal analysis of the school district en route to a comprehensive remedial order. In that Order, Judge Battisti directed the establishment of the Office of School Monitoring and Community Relations, charged it with rigorous monitoring of desegregation implementation, and ordered the appointment of an official Desegregation Administrator to be paid by defendants. These actions were affirmed by this Court. See Reed v. Rhodes, 635 F.2d 556 (6th Cir. 1980).

Racial balance in Cleveland is difficult to achieve because the city is to a great extent divided racially along a North-South axis. Schools on the East Side are predominantly African-American; schools on the West Side are predominantly White. In order to comply with the plus/minus 15% test, the school system was first divided into 190 residential zones. Students were then assigned and bussed to schools across town to achieve the requisite racial balance in each individual school. When imbalances resurfaced, they were corrected by administrative orders and students were reassigned as needed. Annually, as many as 4,000 students were reassigned and bussed to satisfy the court order. Bus rides for some students exceeded 80 minutes each way, e.g. between the southeast corner of the school district, which has a student population that is 98-99% African American, and the southwest corner of the district, which is only 35% African American. Some schools, known as LAU sites, were excluded from the court's 15% parameters because they serve specially assigned concentrations of students who speak little English. Later, on August 14, 1987, Judge Battisti authorized changes in pupil assignments without prior court approval if such changes were agreeable to the following three parties: the school district,

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the State Superintendent, and Plaintiffs' legal counsel.

During the 1980s, the school system became predominantly nonwhite as a result of white flight. The Cleveland School District operated approximately 130 schools, 90% of which satisfied the 15% limitation every year. After the district court's order of August 14, 1987, Dr. Gordon Foster was appointed as a joint expert of all parties for the purpose of assisting in planning improvements to the student assignment process. Dr. Gordon had previously...

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