Johnson v. Sikes

• Decision Date: 23 April 1984
• Docket Number: No. 82-8439,82-8439
• Citation: 730 F.2d 644
• Parties: 16 Ed. Law Rep. 1085 Kathy Norris JOHNSON and Loretta Wilcox, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Ben F. SIKES, in his official capacity as Superintendent of the Tattnall County Schools, the Tattnall County School Board, and the Tattnall County School District, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 644

730 F.2d 644

16 Ed. Law Rep. 1085

Kathy Norris JOHNSON and Loretta Wilcox, individually and on behalf of all others similarly situated Plaintiffs-Appellants, v. Ben F. SIKES, in his official capacity as Superintendent of the Tattnall County Schools, the Tattnall County School Board, and the Tattnall County School District, Defendants-Appellees.

No. 82-8439.

United States Court of Appeals Eleventh Circuit.

April 23, 1984.

Rose E. Firestein, Savannah, Ga., Jonathan A. Zimring, Atlanta, Ga., for plaintiffs-appellants.

J. Franklin Edenfield, Swainsboro, Ga., for defendants-appellees.

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

Before HILL, VANCE and ANDERSON, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Appellants challenge the Tattnall County School District's requirement that students pass an exit examination to obtain a high school diploma. We dismiss the appeal for lack of ripeness.

BACKGROUND

The Tattnall County School District ("the District") abolished separate schools for white and black students beginning with the 1970-71 academic year. During the same school year, the District instituted a tracking or ability grouping system for assigning students in the elementary and junior high schools, with the exception of students at Collins High School. The tracking system often resulted in racially identifiable classrooms and was abandoned in 1979-80 as a result of an investigation by the Office of Civil Rights.

In 1976, the Tattnall County School Board adopted a diploma policy requiring that, in addition to successful completion of a certain number of credit hours and sufficient school attendance, each graduating student perform at the ninth grade level (a score of 9.0) on the mathematics and reading portions of the California Achievement Test ("CAT"). As part of the testing requirement, the District instituted remedial courses for those who failed to achieve the requisite score and delayed the imposition of the diploma sanction until Spring, 1978. In 1978, 30 out of a class of 219 students did not obtain the required 9.0 score and, as a result, received certificates of attendance instead of diplomas; seventeen of those who only received certificates were black.

Of the 192 members of the graduating class of 1979, 10 out of the 12 students who did not get a diploma because they failed the CAT were black. In 1980, 6 students out of 192 received certificates of attendance; all six were black.

This action was filed in October, 1979, by appellant Kathy Norris Johnson on behalf of herself and other black students in Tattnall County, Georgia, who have completed, will complete, or are eligible to complete all requirements for high school graduation and receipt of a high school diploma other than achieving a particular score on the CAT. Named as defendants were the Tattnall County School District, the Tattnall County School Board, and Ben F. Sikes, the Superintendent of Schools for Tattnall County. The complaint alleged that the exit examination: discriminates against the plaintiffs because of their race, in violation of the equal protection clause of the fourteenth amendment; is fundamentally unfair and therefore violates the plaintiffs' rights to due process of law as guaranteed by the fourteenth amendment; violates Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d; and violates 20 U.S.C. Secs. 1703, 1706. ¹ The case was consolidated with a similar case, Walls v. Banks, and the district court certified the following classes:

Class 1. All black children who attended, are attending, or will attend public schools in Tattnall County, Georgia, and who have completed, will complete, or are eligible to complete all valid and legal requirements for receipt of a high school diploma established by Defendant Board or the Georgia State Board of Education, but who did not or will not achieve a particular score on the California Achievement Test, and who, as a result of having failed to achieve a certain score on said tests, have been or will be denied a high school diploma by Defendants.

Class 1.a. All black children who have attended, are attending, or will attend public schools in Tattnall County, Georgia, and who have completed, or will complete all requirements for receipt of a high school diploma established by Defendant Board or the Georgia State Board of Education, other than achieving a particular score on the California Achievement Test, and who, solely as a result of having failed to achieve a certain score on said test, have been or will be denied a high school diploma by Defendants.

After trial on the consolidated cases, the district court entered its order of June 17, 1981. See Anderson v. Banks, 520 F.Supp. 472 (S.D.Ga.1981). The court held that the plaintiffs prevailed on their equal protection claims and ordered the defendants not to impose the diploma sanction until the graduation of the class of 1983 since that would be the first group of graduating students who began their education after the abolition of the segregated school system. After analyzing the standards set forth in McNeal v. Tate County School District, 508 F.2d 1017 (5th Cir.1975), the district court further held that the District could reinstate the diploma sanction in 1983 if it could then show that the increased educational opportunities of the CAT outweigh any lingering causal connection between the discriminatory tracking system and the imposition of the diploma sanction.

The district court also examined the plaintiffs' due process claims in light of Debra P. v. Turlington, 644 F.2d 397 (5th Cir.1981), and held that the school authorities had not demonstrated that the CAT was a fair test of the material actually taught in Tattnall County public schools. The defendants filed a motion for reconsideration of the due process portion of the order, arguing that the Debra P. decision On appeal, plaintiffs-appellants contend that the district court erred in its ruling of June 17, 1981, on plaintiffs' equal protection claims, and in its order of June 16, 1982, on plaintiffs' due process claims. They argue that the court misinterpreted McNeal v. Tate County School District in holding that the school authorities could reestablish the competency test in 1983 if they could then show that the increased educational opportunities of the CAT policy outweigh any lingering causal connection between the discriminatory tracking system and the imposition of the diploma sanction. According to appellants, the District can only reinstate the exam policy if it can show that steps taken to bring disadvantaged students to peer status have ended the educational disadvantages caused by the tracking system. Appellants also maintain that the court erred in holding that the exit exam covered material taught in Tattnall County public schools. They assert that the district court misapplied the test set forth in Debra P. v. Turlington for determining whether an exit exam comports with the due process clause of the fourteenth amendment.

was announced after trial and that the decision created a new standard of proof and a shifting of the burden of proof. The court agreed that Debra P. changed the applicable law and scheduled an evidentiary hearing to permit the defendants to present additional evidence concerning the match between the CAT and what was actually taught in the classrooms. A second order was issued on June 16, 1982, see Anderson v. Banks, 540 F.Supp. 761 (S.D.Ga.1982), holding that the defendants had made a sufficient showing that the CAT is a fair test of the material taught in Tattnall County. A judgment was entered on June 17, 1982, stating that plaintiffs did not prevail on their substantive due process claims.

DISCUSSION

In effect, the appellants ask us to announce whether the appellees can reinstate the exit exam at some uncertain future date if the appellees choose to reinstitute the test and if the appellees are able to demonstrate to the district court that the educational benefits of the testing program outweigh any lingering causal connection between the diploma sanction and the tracking system. Before considering the issues raised by appellants, we must first determine whether these issues are properly before this court. See Buckley v. Valeo, 424 U.S. 1, 113-14, 96 S.Ct. 612, 679-680, 46 L.Ed.2d 659 (1976). Prior to oral argument, we requested the parties to brief the issue of the finality and appealability of the district court's orders. Both parties concede that there are still matters to be decided by the district court but contend that the court's rulings constitute a final order as contemplated by 28 U.S.C. Sec. 1291 or, alternatively, an appealable interlocutory denial of an injunction under 28 U.S.C. Sec. 1292(a). ²

Neither party, however, has addressed whether we should defer decision on the constitutional issues raised by the appellants because the controversy is not ripe for review in light of the absence of a ruling by the district court that the school district may reinstate the exit exam policy. The question of ripeness affects our subject matter jurisdiction, see International Tape Manufacturers Ass'n v. Gerstein, 494 F.2d 25, 27 (5th Cir.1974); Duke City Lumber Co. v. Butz, 539 F.2d 220, 221 n. 2 (D.C.Cir.1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 737, 50 L.Ed.2d 751 (1977), and may be raised sua sponte at any time, Duke City Lumber Co., 539 F.2d at 221 n. 2; In re Grand Jury, April, 1979, 604 F.2d 69, 72 (10th Cir.1979). Although at oral argument the parties encouraged us to render a decision in this case, "because issues of ripeness involve, at least in part, the existence of a live 'Case or Controversy,' we cannot rely upon concessions of the parties and must determine whether the issues are ripe for decision in the 'Case and Controversy' sense. Further, to the extent that questions of ripeness involve the exercise of judicial restraint from...