Pitts by Pitts v. Freeman, s. 88-8687

• Citation: 887 F.2d 1438
• Decision Date: 11 October 1989
• Docket Number: 88-8775,Nos. 88-8687,s. 88-8687
• Parties: 56 Ed. Law Rep. 777 Willie Eugene PITTS, a minor, by his mother and next friend, Mrs. Anna Mae PITTS, Victor Martin; a minor, by his father and next friend, Robert L. Martin; Kelvin, Felicia, Alfred, Orma, and Alfredia Henderson, minors, by their mother and next friend, Rebecca Henderson, Patricia Joyce Reeves, a minor, by her mother and next friend, Mrs. Rosa Lee Reeves; Anthony Reed and Cecilia Searcy, minors, by their mother and next friend, Mrs. Juanita Searcy; Ned and Becky Stone, minors, by their father and next friend, Alfred E. Stone, Jr.; Joy, Bridget and Sandra Becker, minors, by their father and next friend, Louis E. Becker; Monica Rocker, a minor, by her father and next friend, Arthur "Rock" Rocker; John Johnson and Devett Smith, minors, by their mother and next friend, Ms. Eunice A. Smith; Frankie Prather, a minor, by guardian and next friend, Cynthia Scott, and her father and next friend, Major Scott; Princess Mills, a minor, by her father and next friend, Roger Mills; Mark Anthony Wharton, a minor, by his mother and next friend Doris Patillar; and all others similarly situated, Plaintiffs-Appellants, Cross-Appellees, Ann T. Johnson, Intervening Plaintiff, v. Robert FREEMAN, Superintendent, Lyman Howard, Norma Travis, and Phil Mc Gregor, DeKalb County Board of Education Members, Defendants-Appellees, Cross-Appellants. Willie Eugene PITTS, et al., Plaintiffs-Appellants, Cross-Appellees, v. Robert R. FREEMAN, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1438

887 F.2d 1438

56 Ed. Law Rep. 777

Willie Eugene PITTS, a minor, by his mother and next friend,

Mrs. Anna Mae PITTS, Victor Martin; a minor, by his father

and next friend, Robert L. Martin; Kelvin, Felicia, Alfred,

Orma, and Alfredia Henderson, minors, by their mother and

next friend, Rebecca Henderson, Patricia Joyce Reeves, a

minor, by her mother and next friend, Mrs. Rosa Lee Reeves;

Anthony Reed and Cecilia Searcy, minors, by their mother and

next friend, Mrs. Juanita Searcy; Ned and Becky Stone,

minors, by their father and next friend, Alfred E. Stone,

Jr.; Joy, Bridget and Sandra Becker, minors, by their

father and next friend, Louis E. Becker; Monica Rocker, a

minor, by her father and next friend, Arthur "Rock" Rocker;

John Johnson and Devett Smith, minors, by their mother and

next friend, Ms. Eunice A. Smith; Frankie Prather, a minor,

by guardian and next friend, Cynthia Scott, and her father

and next friend, Major Scott; Princess Mills, a minor, by

her father and next friend, Roger Mills; Mark Anthony

Wharton, a minor, by his mother and next friend Doris

Patillar; and all others similarly situated, Plaintiffs-Appellants, Cross-Appellees, Ann T. Johnson, Intervening Plaintiff, v. Robert FREEMAN, Superintendent, Lyman Howard, Norma Travis, and Phil Mc Gregor, DeKalb County Board of

Education Members, Defendants-Appellees,

Cross-Appellants.

Willie Eugene PITTS, et al., Plaintiffs-Appellants, Cross-Appellees, v. Robert R. FREEMAN, et al., Defendants-Appellees, Cross-Appellants.

Nos. 88-8687, 88-8775.

United States Court of Appeals, Eleventh Circuit.

Oct. 11, 1989.

Rehearing and Rehearing In Banc Denied Nov. 13, 1989.

Marcia W. Borowski, Atlanta, Ga., for plaintiffs-appellants, cross-appellees.

Gary M. Sams, Weekes & Candler, Charles L. Weatherly, Weekes & Candler, J. Stanley Hawkins, Mark D. Welsh, Decatur, Ga., for defendants-appellees, cross-appellants.

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

Before FAY and HATCHETT, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

HATCHETT, Circuit Judge:

In 1985, in this case, we stated:

The district court['s] ... characterization of the DeKalb County School System as unitary was error. As the defendants suggest, it is possible that the district court did not intend its use of the word 'unitary' to be equated with the unitary status that requires dismissal of the action. The court may have been stating merely that a constitutionally acceptable desegregation plan was implemented in 1969 thus making the school system unitary in some respects. Yet the district court committed error by applying the wrong standards of proof when it proceeded to require the plaintiffs to prove discriminatory intent, a requirement that ordinarily would be appropriate only after a finding of full unitary status.

Until the DeKalb County School System achieves unitary status, it has an affirmative duty to eliminate the effects of its prior unconstitutional conduct. The United States Supreme Court has held that a previously segregated school system is under an '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.'

Pitts v. Freeman, 755 F.2d 1423, 1426 (11th Cir.1985) ("Pitts I ") (quoting Columbus Board of Education v. Penick, 443 U.S. 449, 459, 99 S.Ct. 2941, 2947, 61 L.Ed.2d 666 (1979) and Green v. County School Board, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1693-94, 20 L.Ed.2d 716 (1968)). Despite our admonishments, the district court ruled that the DeKalb County School System ("DCSS") is under no affirmative duty to take steps to desegregate an acknowledged segregated system in the area of student assignment because the DCSS closed all of its de jure black schools in 1969. Although we affirm the district court's ultimate conclusion that the DCSS has not yet achieved unitary status, we reverse the district court's ruling that the DCSS has no further duties in the area of student assignment.

I. FACTS

A. Racial Composition of the DeKalb County School System

1. Students

The DeKalb County School System ("DCSS") serves 79,991 students in more than 90 schools. ¹ Black students constitute 47-percent of the DCSS population. Despite the system's racial balance, 50-percent of the black students attend schools with black populations of more than 90-percent. Similarly, 27-percent of the DCSS's white students attend schools with white populations of more than 90-percent. ² The DCSS operates a segregated school system.

The DCSS maintains several programs to combat segregation. First, the DCSS maintains a Minority-to-Majority program ("M-to-M" program) that permits students to transfer from schools in which their race is a majority to schools in which their race is a minority. Approximately 4,500 students, almost all black, participate in the M-to-M program. Second, the DCSS maintains a magnet school program that includes a performing arts program, two science programs, and a foreign language program. The DCSS plans to add at least five more programs, including two occupational education centers. Third, the DCSS maintains a court-appointed bi-racial committee to review proposed boundary line changes, school openings and closings, and the M-to-M program.

2. Faculty and Staff

a. Administrators

Black persons constitute approximately 30-percent of DCSS elementary school administrators (principals, assistant principals, and lead teachers). Yet, black administrators constitute less than 10-percent of the administrators in majority white schools. Conversely, black administrators constitute 60-percent of DCSS administrators in schools with black populations of more than 81-percent. Additionally, the DCSS assigns 13 of 18 black elementary school principals to schools in which the black student population is more than 90-percent.

At the high school level, the DCSS employs 27-percent black administrators. The percentage of black administrators at each school rises according to the size of the black student population. In majority white high schools, black administrators constitute only 22-percent of the administrators. In high schools with black student populations between 41-percent and 80-percent, black administrators constitute 45-percent of the administrators. In high schools with black student populations of more than 81-percent, black administrators constitute more than 63-percent of the administrators. In addition, the DCSS assigns 4 of 5 black high school principals to schools with black student populations of more than 95-percent.

b. Teachers

Black teachers constitute approximately 27-percent of DCSS faculty. Yet, 17 school faculties deviate by more than 10-percent from the system average.

The DCSS maintains a transfer program for experienced teachers. Teachers with more than 3 years experience at one school may request a transfer to another school. During the 1986-87 school year, 182 teachers requested transfers. The DCSS granted 83 requests. The district court found that the transfer program deterred the DCSS from achieving racial equality among its faculty.

3. Educational Resources

a. Faculty Experience

The district court found that the DCSS assigns experienced teachers and teachers with graduate degrees in a racially imbalanced manner. The district court presented this fact by grouping DCSS schools into three categories: (1) Type I schools (majority white students during last ten years); (2) Type II schools (changed from majority white students to majority black students during last ten years); and (3) Type III schools (majority black students during the last ten years). The following charts demonstrate the racial skew:

                Average Number of Years Teaching
                ELEMENTARYSCHOOLS          Fall1984  Fall1985  Fall1986
                Type I (majority white)      9.55       10.22    9.79
                Type II (white to black)     6.45        6.90    6.36
                Type III (majority black)    5.24        5.46    5.19
                HIGH SCHOOLS
                Type I                       7.99        8.74    8.90
                Type II                      6.83        7.14    7.08
                Type III                     5.34        5.68    4.91
                

Percentage of Teachers with Graduate Degrees

ELEMENTARYSCHOOLS HIGHSCHOOLS

                Type I          75.76           76.05
                Type II         61.84           64.34
                Type III        52.63           64.32
                b. Per Pupil Expenditures
                

Using 1984-1985 school year figures, the district court also found that the DCSS spends more money per white student than it spends per black student. The following chart demonstrates the racial imbalance:

                Per Pupil Expenditures
                Type I    $2,833
                Type II   $2,540
                Type III  $2,492
                B. Racial Composition of DeKalb County
                

Between 1950 and 1986, DeKalb County grew from 77,000 to 450,000 residents. This growth proceeded in a racially-skewed fashion. Black residents moved primarily to south DeKalb County and white residents moved primarily to north DeKalb County. For example, between 1970 and 1980, north DeKalb County's non-white population increased 102-percent to 15,365. South DeKalb County's non-white population, however, increased 661-percent to 87,583. In addition, between 1975 and 1980, 37,000 white residents moved from south DeKalb County to neighboring counties. ³

DeKalb County's demographic changes affected the DCSS. Between 1976-1986, the DCSS elementary school population declined 15-percent. During the same time, however, black elementary student enrollment increased 86-percent. At the high school level, DCSS enrollment declined 16-percent while black enrollment increased 119-percent.

II. PROCEDURAL HISTORY

A. The DCSS Prior to 1969

Historically, the DCSS segregated its schools and programs according to law. In 1966, the DCSS replaced its dual system with a "freedom of choice" plan. Under the freedom of choice plan, a number of black students attended formerly de jure white schools. A majority of black students, however, still attended de jure black schools. ⁴

In ...