Coleman v. Miller

• Decision Date: 03 January 1996
• Docket Number: Civil No. 1:94-cv-1673-ODE.
• Citation: 912 F. Supp. 522
• 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

912 F. Supp. 522

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

Civil No. 1:94-cv-1673-ODE.

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

January 3, 1996.

COPYRIGHT MATERIAL OMITTED

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

James Andrew Coleman, Atlanta, GA, pro se.

Ray Octavio Lerer, Office of State Attorney General, Atlanta, GA, for defendants.

Dietrich W. Oellerich, Jr., Office of Dietrich W. Oellerich, Jr., Hephzibah, GA, James Michael Spence, Office of James Michael Spence, Augusta, GA, William F. Able, phv, Office of William F. Able, Columbia, SC, Proposed Intervenors.

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 Defendants' motion for summary judgment. 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, an African-American citizen, seeks an injunction ordering the immediate removal of the Georgia flag from all state office buildings on the basis that both the legislation establishing the flag and the flag's design are discriminatory and racist in nature.

I. FACTUAL AND PROCEDURAL HISTORY

On March 31, 1995, this court entered an order denying Plaintiff's motion for a preliminary injunction on the basis that Plaintiff had not shown a likelihood of success on the merits. Prior to issuing the order, evidentiary hearings were held on November 21 and December 15, 1994, at which the parties entered exhibits into evidence and presented testimony by way of affidavits and live witnesses. Plaintiff has offered no additional evidence subsequent to the hearings with the exception of an amendment to his mandatory interrogatories listing the names of witnesses he intends to call at trial.

The following facts are undisputed unless otherwise noted. Because of the importance of the timing of historical incidents leading to the current flag's enactment, the court presents the facts in a strictly sequential manner.

Prior to the year 1879, Georgia had no official state flag. Georgia had flown, however, a number of unofficial flags including the Confederate First National Flag, also known as the "Stars and Bars." Likewise, the Confederacy never formally adopted a flag during the Civil War. Nevertheless, Confederate troops in battle¹ carried a square flag depicting a blue St. Andrew's Cross on a red field.² The Confederate battle flag looked as follows:

In 1879, Senator Herman Perry introduced a bill in the Georgia General Assembly proposing that they adopt his proffered design as the first official state flag. 1878-79 Ga. Laws 114. That flag, a variation on the Stars and Bars which was intended to honor the Confederacy, was modified slightly in 1902 to add the State coat of arms. 1902 Ga.Laws 81. The 1902 flag remained the official flag of the State of Georgia until 1956. It looked like this:³

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.⁴ Although this revived interest was particularly evident in the South,⁵ there were few concrete manifestations of it until the mid-1950's, at which time interest in Confederate history coalesced with public outcry to desegregation mandates by the United States 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 public schools violated the Equal Protection Clause. Later that year, Georgia voters ratified a constitutional amendment allowing parents to withdraw their children from public schools and diverting public money to nonsectarian, segregated private schools.

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 state flag to the annual conference of County Commissioners. The County Commissioners approved of the design and voted to support his efforts. As is stated in Bell's affidavit, he had been a lifelong student of Confederate military history and a collector of Confederate memorabilia. As such, he stated that he had thoughts of redesigning the flag to incorporate the Confederate battle flag long before the 1950's.

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 to proceed "with all deliberate speed."⁶ Id. at 300, 75 S.Ct. at 756. The Court's decision fomented great controversy and deep emotion in Georgia. Politicians, including Governor Marvin Griffin, advanced a policy of massive resistance to desegregation in response.

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. At approximately the same time, the State Attorney General prepared for distribution to public schools and universities a background paper advocating the doctrine of interposition, which essentially maintains 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.

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.

In December 1955, 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 to play no intrastate games against teams with black players.

At the beginning of the 1956 legislative session, Governor Griffin stated in an address to the States' Rights Counsel of Georgia that "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 General Assembly had no African-American members at that time.

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 fact that few surviving Confederate veterans remained to participate. In the House, members debated the cost of changing the flag and whether Bell owned a copyright on his design such that he 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.⁷ Because of the unusually high number of abstentions, the bill passed by only a fourteen-vote margin. The flag adopted in 1956, which today remains the official flag of Georgia, looks like this:

Nothing in the record of the flag 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.). One former member, James Mackay, however, testified that the flag was adopted as a symbol of resistance to Brown.

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

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