Georgia State Conference v. State of Ga., CV482-233.

• Decision Date: 08 August 1983
• Docket Number: No. CV482-233.,CV482-233.
• Citation: 570 F. Supp. 314
• Parties: GEORGIA STATE CONFERENCE OF BRANCHES OF NAACP, et al., Plaintiffs, v. STATE OF GEORGIA, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

570 F. Supp. 314

GEORGIA STATE CONFERENCE OF BRANCHES OF NAACP, et al., Plaintiffs, v. STATE OF GEORGIA, et al., Defendants.

No. CV482-233.

United States District Court, S.D. Georgia, Savannah Division.

August 8, 1983.

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

C.O. Oxford, Americus, Ga., for Americus.

Thomas F. Richardson, Macon, Ga., for Bleckley.

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

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

James W. Hurt, Cordele, Ga., for Crisp.

Ronald W. Hallman, Claxton, Ga., for Evans.

Franklin J. Edenfield, Swainsboro, Ga., for Jefferson.

G. Stuart Watson, Albany, Ga., for Lee.

Rose Firestein, Savannah, Ga., for NAACP.

Charles Jones, Hinesville, Ga., Ronald H. Rentz, Colquitt, Ga., for Liberty.

Randall Chew, Pelham, Ga., for Pelham.

C. Ronald Barfield, Thomaston, Ga., for Thomaston.

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

David F. Walbert, Atlanta, Ga., for NAACP plaintiffs.

ORDER

EDENFIELD, District Judge.

Before the Court are the plaintiffs' and state defendants' cross motions for partial summary judgment. The issue for the Court's determination is this: whether the State of Georgia, the State Superintendent of Schools, and the Members of the Board of Education hereinafter "state defendants" are liable for alleged intentional racial and handicap discrimination in the assignment of students to classrooms and programs for the Educable Mentally Retarded (EMR).¹

Plaintiffs assert that, on the record before the Court, they are entitled to a grant of summary judgment on the issue of the state defendants' liability for permitting the maintenance of racially identifiable classrooms. In addition, the plaintiffs contend that a finding of liability is inescapable on their claim that the state defendants have allowed the misclassification of black students as EMR in violation of federal statutory law. Plaintiffs also submit that summary judgment is appropriate on their assertion that the misclassification of students as EMR is actionable under Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794.

The state defendants have vigorously opposed these motions on several grounds. The first defense asserted is, generally stated, that any "racially identifiable" classrooms existing in Georgia public schools are the result of academically sound and constitutionally permissible achievement grouping practices which have been implemented by local school systems. The state also controverts plaintiffs' assertions that this action may be predicated on the theory that the state defendants never fulfilled their obligation to disestablish the unconstitutional dual system, and one consequence of that failure is the current racial malapportionment of classes throughout the State. Further, the State contends that pupil placements are made by the local districts and they cannot be held vicariously liable for the alleged discrimination of these local districts.

If the motion for summary judgment is denied, plaintiffs, in their alternative, have moved that the Court grant their motion in limine which avers: (1) that the state defendants are collaterally estopped from attempting to relitigate their liability for the administration of the public schools in Georgia; (2) that the state defendants' responsibility for the administration of the public schools includes the elimination of intentional racial discrimination and separation in the public schools; and (3) that the state defendants' responsibility includes the provision of special education services in accordance with federal and state law. The state defendants deny that the two decisions relied upon by plaintiffs, United States v. Georgia and Georgia Association of Retarded Citizens v. McDaniel, are dispositive of any issue in this case. Accordingly, the state defendants submit that allowance of the offensive use of collateral estoppel on these issues is ill-advised.

In reviewing the lengthy arguments of authority submitted on this motion by each party, the Court notes the complete lack of agreement on the proper legal standard to be applied to these claims. As the Court understands the plaintiffs' arguments, this case addresses the problems associated with the "vestiges of discrimination." That is, the suit is premised on the assumption that the perceived ills are the result of the prior de jure system, thus present discriminatory intent need not be proved. Liability in many instances would be grounded upon an unfulfilled duty arising from the past. The defendants, both state and local, adamantly argue that for plaintiffs to prevail on those claims asserting a violation of the Equal Protection Clause because of invidious racial discrimination, present discriminatory intent must be proved. It is not clear whether defendants are implicitly contending that evidence of past discrimination is irrelevant to this case.

The Court has reason to pause over this disagreement because each party's arguments, when stripped of counsel's hyperbole, are intrinsically correct. And it can only be accepted as true that since the early 1970's, when massive integration was undertaken in this state, a common goal of society has been the elimination of a pernicious system. The Court has difficulty, however, with the plaintiffs' assumption that the evil currently perceived is automatically attributable to the dual system. Nor does the Court embrace the defendants' assertions that the past is the past and therefore this case is one in which present intent to discriminate must be proved. And if this case is properly viewed as a "vestiges" case, then this Court does not desire to make plaintiffs' burden more difficult by application of the defendant's proposed theory. However, there are equally weighty considerations with respect to the state and local defendants' position. The schools have been desegregated since at least the 1970-71 school year. Almost all districts were declared unitary by 1974. There will always be "line drawing" and some is constitutionally permissible. While the imprint of the past segregation cannot be disregarded, the weight accorded it must be placed in perspective.

Against this perspective, the Court views the instant claims as "second generation desegregation problems." They present issues that arise when society has gone beyond eradicating dual facilities. The fairly scant body of caselaw which addresses such issues must grapple with the problem of what was meant, in theoretical terms, by the Supreme Court's directive "to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Board, 391 U.S. 430, 437-438, 88 S.Ct. 1689, 1693-94, 20 L.Ed.2d 716 (1968). That is, the question for the Court's determination is what is meant, in 1983, by a unitary system which is to provide equal educational opportunities for all. Finally, the Court must consider the relevance of the Supreme Court's many decisions directed toward the disestablishment of the dual system.

1. The Legal Standard for Proof of Discrimination

Twenty-nine years ago the Supreme Court was presented with the following question:

Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities?

Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) hereinafter "Brown I". Chief Justice Warren, writing for the Court, answered the question in the affirmative. Id. The Chief Justice made some further observations of enduring validity:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

Id. at 493, 74 S.Ct. at 691.

In spite of the Court's explicit holding that "segregated schools constituted denial of the equal protection of the laws, id. at 495, 74 S.Ct. at 692, and its later admonition to effectuate the administration of public schools on a racially nondiscriminatory basis with "all deliberate speed," Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) hereinafter "Brown II", the period from 1955-1963 was not marked by a flurry of activity directed toward implementation of the court's decree.² In 1968, the court was more explicit in its statements, holding that, "School boards ... then operating state compelled dual systems were nevertheless clearly charged with the 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." Green v. County School Board, 391 U.S. 430, 437-438, 88 S.Ct. 1689, 1693-94, 20 L.Ed.2d 716 (1968).

It was not until 1971 that the Supreme Court decided Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) hereinafter "Swann". The task before the Court in Swann was the definition "in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems...