Georgia State Conference of Branches of NAACP v. State of Ga.

• Citation: 775 F.2d 1403
• Decision Date: 29 October 1985
• Docket Number: No. 84-8771,84-8771
• Parties: 28 Ed. Law Rep. 339 GEORGIA STATE CONFERENCE OF BRANCHES OF NAACP, Plaintiff, Mary Alice Covin, Mary Laurant, Sylvia Dennis, and Naomi Tucker, Plaintiffs-Appellants, v. STATE OF GEORGIA, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1403

775 F.2d 1403

28 Ed. Law Rep. 339

GEORGIA STATE CONFERENCE OF BRANCHES OF NAACP, Plaintiff,

Mary Alice Covin, Mary Laurant, Sylvia Dennis, and Naomi

Tucker, Plaintiffs-Appellants, v. STATE OF GEORGIA, et al., Defendants-Appellees.

No. 84-8771.

United States Court of Appeals,

Eleventh Circuit.

Oct. 29, 1985.

James F. Bass, Jr., Savannah, Ga., Rose Firestein, Jonathan A. Zimring, Atlanta, Ga., for plaintiffs-appellants.

Patrick W. McKee, Atlanta, Ga., for State.

Dawn G. Benson, Albany, Ga., for Lee Co.

William M. Fulcher, Augusta, Ga., for Burke Co.

Charles K. Howard, Atlanta, Ga., for Vidalia Co.

Nathan G. Knight, Newnan, Ga., for Coweta Co.

Appeal from the United States District Court for the Southern District of Georgia.

Before HENDERSON and CLARK, Circuit Judges, and HOFFMAN ^*, District Judge.

HENDERSON, Circuit Judge:

This is a civil rights class action attacking the policies and practices of the Georgia State Board of Education and a number of local school districts. The plaintiffs, thirty-five black schoolchildren, sued in the United States District Court for the Southern District of Georgia claiming that black students are assigned to regular classes and programs for the educable mentally retarded (EMR) in Georgia public schools in a discriminatory manner. The district court found in favor of the defendants on all counts and the plaintiffs appealed that judgment to this court.

I. Procedural History

This action was filed on June 8, 1982 by the Georgia State Conference of Branches of the NAACP, the Liberty County Branch of the NAACP, and forty-five individual schoolchildren on behalf of themselves and all other black students similarly situated in Georgia except those living in Fulton, DeKalb, Cobb, Gwinnett, Clayton, Muscogee, Bibb, Richmond and Chatham counties. Ten of the children withdrew as plaintiffs shortly after the filing of the complaint.

The named defendants were the State of Georgia, the State Superintendent of Schools, the State Board of Education (the State defendants) and the Americus, Bleckley, Burke, Coweta, Crisp, Evans, Jefferson, Lee, Liberty, Miller, Thomaston, Pelham and Vidalia school districts (the local defendants). The claims against the Americus, Bleckley, Jefferson, Thomaston and Pelham school systems were settled prior to the trial.

The plaintiffs basically assert two causes of action. First, they allege that the use of achievement grouping in Georgia public schools is intended to achieve or results in intraschool racial segregation. This, they say, is violative of the thirteenth and fourteenth amendments to the Constitution of the United States; Title VI of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000d et seq. (Title VI); and the Equal Educational Opportunities Act, 20 U.S.C. Secs. 1701 et seq. (EEOA). The second cause of action incorporates the charge that black children in Georgia are assigned to EMR programs in a discriminatory manner. To the extent this claim is based on racial discrimination it is brought pursuant to the thirteenth and fourteenth amendments, Title VI and the EEOA. ¹ The allegations of handicap discrimination are founded on a violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (section 504). Relief is sought against the local defendants for the practices within their districts and the State defendants are sued in their supervisory capacities. ²

On April 5, 1983, 99 F.R.D. 16 (D.C.Ga.), the district court found that all the individual plaintiffs, with the exception of one from the Vidalia school district and five Coweta County students, were proper class representatives. The court also held the State Conference of Branches of the NAACP and the Liberty County Branch of the NAACP were not proper class representatives. The court thereupon certified the named plaintiffs as proper class representatives of "all black children in the State of Georgia" for the purposes of the claims against the State defendants and "the black children in the respective school system[s]" for the causes of action against the local defendants. Sealed Order of April 5, 1983 at 53.

The case was tried without a jury from October 31, 1983 to December 20, 1983. On June 28, 1984, the district court entered an order finding no infringement of the constitution, Title VI or the EEOA. The court, however, held that the defendants did violate certain regulations promulgated under section 504 governing the identification, evaluation and placement of students in EMR programs and scheduled a hearing for the appropriate relief.

On July 31, 1984, the defendants filed a motion to alter or amend the judgment, citing Smith v. Robinson, 468 U.S. ----, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), a case which had been decided just one week after the district court's order of June 28, 1984 in support thereof. After a hearing on both the motion to amend the judgment and the proposed remedies, the district court issued a supplementary order granting the motion to amend the judgment, holding that the plaintiffs could not maintain the action under section 504. On September 27, 1984, the plaintiffs representing the Burke, Coweta and Lee county and the Vidalia City school systems filed their notice of appeal. Record, vol. 40 at 9222-23.

II. Background

The long history of school desegregation efforts in Georgia is a familiar story and will not be summarized here. ³ The allegations of intraschool discrimination in this case are predicated on the widespread practice of grouping students on the basis of ability or achievement and on the assignment of schoolchildren to EMR programs. ⁴ The following descriptions of the local defendants' grouping and EMR program assignment practices are based on the facts found by the district court and, except as set forth infra, are uncontroverted on appeal. ⁵

A. Grouping in Regular Classes

Neither federal law nor the Georgia State Department of Education mandates or prohibits the grouping of children for instructional purposes in regular classrooms. The decision whether to implement these programs is made by the local school district.

1. Vidalia City School District

The Vidalia City School District (Vidalia City) first employed achievement grouping in the late 1950's in its eighth grade classrooms, and has since expanded and revised it gradually to include grades one through seven. From the 1970-71 to 1979-80 school terms, Vidalia City used the Scott Foresman reading system to place first graders. Starting in 1980-81 initial placements of first graders in all classes have been based on scores from the Metropolitan Achievement Test (MAT) and recommendations from kindergarten teachers.

Various versions of the Scott Foresman test were employed throughout most of the seventies to group all other elementary school students. In 1977-78, the school district adopted the Holt Basic Reading Series and the Holt Basic Math Series (the "Holt system"). Second and third graders have been organized in reading and math classes according to the Holt system since 1981-82. Students in other classes such as homeroom, science, social studies and health have not been grouped since the 1982-83 school year.

Fourth and fifth grade students have been classified according to the Holt math system since the 1978-79 term. The Holt reading system was implemented during the 1981-82 school year. Children in the sixth and seventh grades have been grouped under the Holt system in math classes since the 1980-81 term and in reading classes since the 1981-82 school year. All other sixth and seventh grade classes are heterogeneous except for social studies, which is organized according to the reading evaluation, and science, which is grouped according to the math evaluation.

Vidalia City does not group students in grades eight through twelve. All of the procedures used include regular reevaluations of a student's ability through end-of-level and end-of-unit tests. Children are not locked or "tracked" into the same group; there is substantial movement of both black and white students upward and downward in achievement levels. See generally Record, vol. 53 at 3162-81, vol. 54 at 3182-3294 (testimony of Dr. Steven Whatley).

2. Lee County School District

The Lee County School District (Lee County) initiated achievement grouping during the 1967-68 school term in the fifth grade and expanded within a few years to all elementary grades. Lee County High School students generally are not classified according to achievement except for those assigned to remedial math and language arts courses in which enrollment is limited to those who have failed or are in danger of failing the high school exit examination. See Record, vol. 55 at 3610 (testimony of Dr. Robert Clay).

Kindergarten students were assigned heterogeneously until the 1982-83 school term when a special developmental kindergarten was added for educationally disadvantaged students. Students are assigned to the developmental kindergarten on the basis of Development Indicators for the Assessment of Learning (DIAL) tests, a preschool readiness examination. See Record, vol. 46 at 1289-90 (testimony of Dr. Robert Calfee) (explaining readiness tests). Within the two kindergartens, students are randomly assigned to classes.

In the Lee County Elementary School, classification decisions are made by a team of school personnel including the principal and the student's teachers. Assignments are based primarily on reading performance as determined by the MacMillan Placement Test, the Georgia Criterion Reference Test (GCRT), the SRA Achievement Test, the MacMillan Skills Test, the Distar Progress Test and the Key Text Progress Test. Grouping decisions are also influenced by oral reading skill, performance in other academic areas, teacher evaluations and practical concerns such as the need to balance class size within each grade.

Class assignments in the Lee County Upper Elementary School are based on SRA composite...