Coleman v. Miller

• Decision Date: 31 March 1995
• Docket Number: Civ. No. 1:94-CV-1673-ODE.
• Citation: 885 F. Supp. 1561
• Parties: James Andrew COLEMAN v. Zell MILLER, Governor of the State of Georgia and The State of Georgia.
• Court: U.S. District Court — Northern District of Georgia

885 F. Supp. 1561

James Andrew COLEMAN v. Zell MILLER, Governor of the State of Georgia and The State of Georgia.

Civ. No. 1:94-CV-1673-ODE.

United States District Court, N.D. Georgia, Atlanta Division.

March 31, 1995.

COPYRIGHT MATERIAL OMITTED

Randal Alonzo Mangham, Office of Randal Alonzo Mangham, Bruce S. Harvey, Office of Bruce S. Harvey, Melvin Robinson, Office of Melvin Robinson, Harold Michael Harvey, Office of Harold Michael Harvey, Atlanta, GA, for plaintiff.

James Andrew Coleman, Atlanta, GA, pro se.

Rene Octavio Lerer, Office of State Atty. Gen., Atlanta, GA, for Zell Miller and State of Georgia.

Dietrich W. Oellerich, Jr., Office of Dietrich W. Oellerich, Jr., Hephzibah, GA, James Michael Spence, Office of James Michael Spence, Augusta, GA, for Georgia Division, Sons of Confederate Veterans, Don Cheeks, Ben Harbin, Robin Williams, Eddie Brown Page, III, and Michael J. Padgett.

ORDER

ORINDA D. EVANS, District Judge.

This civil rights action brought under 42 U.S.C. §§ 1983, 2000a, and 1971 is before the court on Plaintiff's motion for preliminary injunction. At issue is the constitutionality of the current state flag of Georgia, established by the Georgia General Assembly in 1956 pursuant to O.C.G.A. § 50-3-1. Plaintiff is an African-American citizen. He seeks an injunction ordering the immediate removal of the Georgia flag from all state office buildings. He claims that the legislation establishing the flag and the flag's design are discriminatory and racist in nature. The case is also before the court on Defendants' unopposed motion for partial judgment on the pleadings. In addition, the Georgia Division of the Sons of Confederate Veterans, Don Cheeks, Ben Harbin, Robin Williams, Eddie Brown Page, III, and Michael J. Padgett have moved to intervene. In this action Plaintiff seeks injunctive, declaratory, and monetary relief.

For the reasons discussed hereinafter, the motion to intervene will be denied.

Turning to the motion for preliminary injunction, evidentiary hearings were held on November 21 and December 15, 1994. The parties presented testimony by way of affidavits and live witnesses and exhibits were received in evidence. Having considered the evidence and arguments and briefs of counsel, the court makes the following findings of fact and conclusions of law.

Until 1879, Georgia did not have an official flag. Prior to that, a number of flags were flown in Georgia including the Confederate national flag, also known as the "Stars and Bars." During the Civil War, the Confederacy adopted a square battle flag depicting a blue St. Andrew's Cross on a red field. The battle flag was carried by Confederate troops during the Civil War. One of the Confederate generals was General Nathan Bedford Forrest, founder of the Ku Klux Klan. The Confederate battle flag looked like this:

In 1879, Senator Herman Perry introduced a bill in the Georgia general assembly to adopt the first official state flag. 1878-79 Ga.Laws 114. The flag was a variation on the Stars and Bars. In 1902, the official design was modified slightly by adding the State coat of arms. 1902 Ga.Laws 81. The resulting flag was the official flag of the State of Georgia from 1902 until 1956. It looked like this:¹

The court accepts the testimony of Defendants' expert witness, Edwin Jackson, that the publication of Margaret Mitchell's book Gone With The Wind in 1936 and its release as a movie in 1939 generated a wave of interest in southern history and culture throughout the United States, especially in the South. Also, the court accepts Mr. Jackson's testimony that this generated a revival of interest in Confederate ancestry and focused attention on the St. Andrews Cross, a prime symbol of the Confederacy. However, Mr. Jackson gave few concrete examples of manifestation of this interest until the mid-1950's, at which time expressions of interest in Confederate history coalesced with public outcry in reaction to desegregation mandates by the Supreme Court.

In 1952, the Georgia General Assembly passed a resolution providing that the Confederate memorial on Stone Mountain near Atlanta, Georgia should be completed. 1952 Ga.Laws 535. In 1954, the United States Supreme Court decided Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), holding that racial segregation in the public schools violated the Equal Protection Clause. In January 1955, the Georgia General Assembly passed a resolution urging completion of the Confederate memorial on Stone Mountain, finding that inadequate progress had been made since the 1952 resolution. 1955 Ga.Laws 5.

In April 1955, John Sammons Bell, counsel to the County Commissioners Association of Georgia and Chairman of the State Democratic Party, presented his idea of redesigning the flag to the annual conference of County Commissioners. The County Commissioners voted at that time to support efforts to redesign the flag. As is stated in Bell's affidavit, he had been a lifelong student of Confederate military history, and a collector of Confederate memorabilia. Long before the 1950's, Bell had thought of the idea of redesigning the flag to incorporate the Confederate battle flag.

In May 1955, the Supreme Court decided Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) which required the desegregation of public schools proceed "with all deliberate speed." Id. at 300, 75 S.Ct. at 756.

In September 1955, the United States Postal Service issued a stamp commemorating Robert E. Lee. In November 1955, the Supreme Court decided Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955), which required the desegregation of Atlanta's public golf courses and, by extension, all public facilities, including buses, parks, beaches, and swimming pools.

The second Brown decision, in particular, fomented great controversy and deep emotion. In Georgia, politicians, including Governor Marvin Griffin, advanced a policy of massive resistance to desegregation. Georgia voters adopted a constitutional amendment allowing parents to withdraw their children from public schools and diverting public money to nonsectarian, segregated private schools. In June 1955, Thurgood Marshall came to Atlanta to help organize citizens to attack segregation. Two months later, the Georgia School Board ordered all teachers belonging to the National Association for the Advancement of Colored People to resign from the organization or have their teaching licenses revoked. Days later, the State Attorney General distributed to public schools and universities a background paper advocating the doctrine of interposition, which essentially holds that states may interpose themselves to block the enforcement of unconstitutional federal mandates such as Brown. During this time, the Ku Klux Klan displayed the Confederate battle flag.

Shortly after the Holmes decision, Rosa Parks refused to give up her seat on a Montgomery, Alabama bus and Rev. Martin Luther King, Jr. instituted a bus boycott there which lasted for over a year. In Georgia the Board of Regents voted to permit the Georgia Tech football team to play an away game against a team with one black player; however, they also passed a resolution that no black players could participate in home games.

At the beginning of the 1956 legislative session, Governor Griffin addressed the State's Rights Counsel of Georgia, stating "the rest of the nation is looking to Georgia for the lead in segregation." In his 1956 state of the State address, Governor Griffin declared that

there will be no mixing of the races in public schools, in college classrooms in Georgia as long as I am the governor. I campaigned with segregation as the number one plank in my platform. We must not desert future generations of Georgians. We must never surrender. All attempts to mix the races, whether they be in the classrooms, on the playgrounds, in public conveyances, or in any other close personal contact on terms of equality harrow the mores of the South.

The 1956 session of the Georgia General Assembly reflected its members' interests in segregation and southern history. Of the 150 acts passed in the 1956 session, ten bills and two resolutions dealt with massive resistance or segregation. One such law was the interposition resolution, which purported to declare the Brown cases and all similar decisions null and void. The resolution stated that in Brown the Supreme Court had usurped powers reserved to the states. It repudiated the Supreme Court's right to declare state laws unconstitutional. The resolution also asserted that Georgia had the right to decide for itself how to educate its children in keeping with the State's social structure, which was segregated. This resolution passed with twenty-five abstentions and only one dissent.

Within days after the interposition resolution's passage, in early February 1956, Senator Willis Hardin sponsored a bill to adopt John Sammons Bell's new design for the state flag. The bill passed in the Senate within three days. The only discussion on its adoption involved the Civil War centennial and the few surviving Confederate veterans remaining to participate. In the House, members debated the cost of changing the flag and whether Bell owned a copyright on his design and would profit from the change. The United Daughters of the Confederacy opposed changing the flag, arguing that the Confederate battle flag belonged to all Southerners and no single state had the right to appropriate it. The bill passed 107 to 32 with 61 abstentions.² The unusually high number of abstentions meant that the bill passed by only a fourteen-vote margin. Nothing in the record of the bill's debate reveals discussions of segregation or white supremacy. This is pointed out in a number of affidavits of former legislators. (See, e.g., affidavits of S. Ernest Vandiver, Jr., Carl E. Sanders, Harold L. Murphy, Denmark Groover, Jr., and Robert G. Stephens, Jr....