Love v. Turlington

Decision Date11 June 1984
Docket NumberNo. 82-3142,82-3142
Citation733 F.2d 1562
PartiesRenita LOVE, on behalf of herself and others similarly situated, Plaintiff-Appellant, v. Ralph D. TURLINGTON, as Commissioner of Education; Florida State Board of Education, Governor Robert Graham, Etc., Et Al., Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Stephen F. Hanlon, Robert Shapiro, Tampa, Fla., Diana Pullin, Robert Pressman, Center for Law & Educ., Cambridge, Mass., Stephen Cotton, Center for Law & Education, Inc., Cambridge, Mass., for plaintiff-appellant.

Judith A. Brechner, Deputy Gen. Counsel, Tallahassee, Fla., for State Bd. of Educ.

B. Edwin Johnson, Clearwater, Fla., for School Bd. of Pinellas County.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, RONEY and KRAVITCH, Circuit Judges.

RONEY, Circuit Judge:

Plaintiff Renita Love appeals the district court's denial of class certification in this action challenging the constitutionality of the SSAT-I (State Student Assessment Test), a basic skills test administered to eleventh graders throughout the state of Florida. The SSAT-I is designed to identify students who have not mastered one or more of the minimum performance standards defined in regulations promulgated pursuant to statute. See Fla.Stat. Sec. 232.246(1)(a); Fla.Admin.Code Rule 6A-1.942(1)(d). Students who fail the test are targeted for remedial assistance. A disproportionately large number of these students are black.

Plaintiff contends that the state's use of the SSAT-I to create a pool of students "at risk" of not receiving a diploma carries forward prior racial discrimination suffered by black students who attended inferior schools in the dual school system, and that inadequate notice was given regarding the test and its objectives.

We hold that the district court did not abuse its discretion in denying class certification on grounds that the commonality and typicality required by Fed.R.Civ.P. 23(a)(2) and (3) are absent in this case. The district judge had before him the uncontested affidavits presented by the defendant which specified that (1) passage of the SSAT-I is not a requirement for receipt of a high school diploma in Florida, and (2) determinations of remedial assistance to be given those students who fail the SSAT-I are made on a district-by-district basis, and the findings of diploma eligibility are made for each student individually.

While it is true that a trial court may not properly reach the merits of a claim when determining whether class certification is warranted, Miller v. Mackey International, Inc., 452 F.2d 424, 428 (5th Cir.1971), this principle should not be talismanically invoked to artifically limit a trial court's examination of the factors necessary to a reasoned determination of whether a plaintiff has met her burden of establishing each of the Rule 23 class action requirements. In Huff v. N.D. Cass Company of Alabama, 485 F.2d 710, 713 (5th Cir.1973) (en banc), the Court refused to "accept the idea that to avoid infringing the plaintiff's and the class's right to jury trial district judges must be barred from making any evidentiary inquiry," and further "reject[ed] ... the argument that the judge is inextricably bound by the face of the pleadings." (footnotes omitted).

Plaintiff's attempt to analogize this case to Debra P. v. Turlington, 644 F.2d 397 (5th Cir.1981), in which class certification was granted, is unsuccessful because of the disparity between the uses and effects of the tests at issue in the two cases. Debra P. concerned the so-called SSAT-II or "functional literacy test," which determined whether or not high school students throughout Florida would receive diplomas, regardless of their academic records. Commonality and typicality were clearly present. In contrast, the SSAT-I simply identifies, for purposes of remediation, those students who are substandard in certain areas in the eleventh grade year. Each district is responsible for its own remedial program for such students. The determinations of whether students failing the SSAT-I are ultimately eligible for a diploma are made by individual teachers on the basis of students' individual achievements. Each student's situation differs, and the diploma is denied each student for reasons which are unique to his situation, and which do not necessarily correspond to his performance on the SSAT-I.

A settlement reached subsequent to the district court's denial of certification resolved plaintiff's individual claim. At oral argument, this Court raised the issue of whether or not an appeal from a denial of class certification by a plaintiff who has settled...

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