Apalalsppteahrgeceposapwpieeesrreaconcpdhieeacsrke.eadsacgoaminpsltete

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

WILLIE EUGENE PITTS, et al., *

*

Plaintiff,

*

*

v.

*

*

ROBERT FREEMAN, et al.,

*

Defendant.

* *

CIVIL ACTION FILE NO. 11946

REPORT TO THE COURT

The DeKalb County School System was directed by Order of this Court entered June 30, 1988, to address and equalize the per pupil expenditure of funds among the three groups of schools as classified by plaintiffs. Specifically, the Court directed:

The DCSS shall attempt to equalize per pupil expenditures among the types of schools during the 1988-89 school year. Within two months of the end of the 1988-89 school year, the DCSS shall file a report with this Court showing per pupil expenditures among the various schools. For purposes of this report, the schools shall be grouped in the same manner as plaintiffs group them for purposes of the hearing held on this motion. (June 30, 1988 Order at p. 58).

In the 1988 Order, the Court found that "[i]n the 1984-85
school year, the expenditure per student in Type I schools was
$2,833.00, Type II schools was $2,540.00, and Type III schools
(

- 1-

was $2,492.00." For the 1988-89 school year, the expenditure per student was as follows:

ELEMENTARY AND SECONDARY SCHOOLS COMBINED

Per Pupil Expenditure

Average ADA

TYPE I - $3856.00

660

TYPE II - $3824.00

706

TYPE III - $3897.00

619

ELEMENTARY SCHOOLS
Per Pupil Expenditure
TYPE I - $3707.00 TYPE II - $3454.00 TYPE III - $3524.00

Average ADA
506 626 557

SECONDARY SCHOOLS
Per Pupil Expenditure
TYPE I - $4050.00 TYPE II - $4646.00 TYPE III - $4964.00

Average APA
1095 988 909

The major factor in per pupil expenditure is school staff salaries. The 1988-89 figures reflect the fact that the process of reassigning teachers to equalize experience and degrees had been only partially completed by the end of the school year. The final reassignments were put in place for the current school year. Projecting the actual 1988-89 expenditures into the 198990 school year and adjusting for the reassignments already put in

- 2-

place reveals projected per pupil expenditures for 1989-90 as follows:

ELEMENTARY AND SECONDARY SCHOOLS COMBINED

Per Pupil Expenditure

Average ADA

TYPE I - $3805.70

660

TYPE II - $3909.33

706

TYPE III - $3996.75

619

ELEMENTARY SCHOOLS
Per Pupil Expenditure
TYPE I - $3629.08 TYPE II - $3566.97 TYPE III - $3634.09

Average ADA
506 626 557

SECONDARY SCHOOLS
Per Pupil Expenditure
TYPE I - $4035.34 TYPE II - $4668.06 TYPE III - $5034.08

Average ADA
1095 988 909

ADA stands for "average daily attendance" of students. ADA has a major impact on per pupil expenditure at the elementary level. For example, it is the practice of the DeKalb County School System to pay the same salary to school-based staff regardless of the size of their school. Therefore, the principal of Mainstreet Elementary School with an average daily attendance of 1,115 students receives the same salary as the principal of

- 3-

Forrest Hills School with an average daily attendance of 201

students. Both Forrest Hills School and Mainstreet School have

one principal, one school secretary, two lead teachers and one

media specialist, and other fixed expenses. For this reason, the

per pupil expenditure at Mainstreet School is $2,961.35 while the

per pupil expenditure at Forrest Hills Schools is $5,126.61.

While both of these schools are Type I schools, the same dynamics

apply to Type II and Type III schools. Type I has more under-

utilized elementary schools than do Types II and III and hence,

suffers the greatest impact from this phenomenon. As a general

rule, the larger the school population, the more "efficiently"

the school can be operated ..

Attached hereto are exhibits showing the expenditures for

each school separated into Types I, II, and III, and ranked in

each grouping by average daily attendance. Exhibit "A" reflects

the actual expenditures for 1988-89 and Exhibit "B" reflects

expenditures adjusted to show the effects of the 1989-90 teacher

transfers.

Respectfully submitted,

WEEKES & CANDLER, P.C.
( i

P.O. Box 250 Decatur, Georgia 30031
(404) 378-4300

Attorney for Defendants
- 4-

EXHIBIT "A"

08/31 j 89

DEKALB COUNTY SCHOOLS

- - ------------------EXPGEENNERDAiLTUOPREREASTIOPNERS

CK-12> PUPIL

FISCAL YEAR 1988 - 89

9cA41A

SCHOOL NUMBER
257
320

SCHOOl NAME MAINSTREET SCHOOL REDAN ELEM SCHOOL

AVERAGE
-------ADA ADA
1 ;115
········- r;oo6

TOTAL
EXPENDITURES *
3,364,935.54
3,1()1,317~55.

EXPENDITURES PER PUPIL
3, 017.87
3,1)82.82

420

STONE MTN ELE SCHOOL_________

848

2,892,559.07

492

WOODRIDGE SCHOOL

832

2,636,587.61

398

SMOKE RISE SCHOOL

776

21646,039.41

344

ROCKBRIDGE SCHJJL

729

2,583,709.17

178

DUNAIRE SCHOOL

655

2,133,344.10

176

DRESOE~ SCHOOL

633

2.;; 316; 890.91 .

325

CARY REYNOLDS SCHOOL

633

2,320,413.50

146

MURPHEY CANDLE~ SCH

108

ALLGOOD SCHOOL

618

2;153;234.90

614

······ ·---·--z;zor,n1';2s ·

3,411.03 3,168.97 3, 409.84 3,544.18 3, 257.01 3, 660.17 3,665.74 3,484.19 3,594.87

260

MCLENDON SCHOOL

603

2,111?,187. 79

3, 643.76

348

ROWLAND SCHOOL

340

Rock CHAPEL SCY06l

595 591 .

1;9~3;032.69
- ----l ;nz-;o11: 3o·

3;282.40 3,2S2.26

190

FERNBANK SCHOOL

496

WOODWARD SCHOOL

212

HAMBRICK SCHOOL

584 --------- ------2-,-038,243.74

3,490.14

562

2,204,124.91

3,921.93

5S"4 .. - -·-·· ----- . -"""2;U27# 3t z;:-o; -. ------------- ·- --3#659.41

232

JOLLY SCHOOL

484

VANDERLYN SCHOOL

215

HENDERSON MilL SCH

113

----

ASHFORD
~- . --

PARK

SCHOOL

513

1,870,689.38

503

1,852,718.96

- 4i19 ----- ------- 'J; 9"0!~ 674:7) ----- ..

495

1,950,525.57

3,646.56
3,683.33 3,8H.87
3,-9-4-0-.4-5-

• *

oDoOeEsS

NOT Not

INCLUDE INCLUDE

SPECIAL ~DUCATION EXP~NDITURES EQUIPMENT~ tUHHR$ OR TRANSPORTA1'10N _____________

• DOES INCLUDE FY 88-89 ACCRUALS

• DOES NOT INCLUDE TRANSFER OF TEACHERS FOR
PuOOn.:!~ nr r-l'u••• • • .... ..;; - ... ..;: __ ;;.::::. ·- =

PAGE4

08/31/89

'"''-E''X'-'P'.E''N- DuI•TUt...RnnEeS.a-.vPr"E.,JR-" -P"U'-P'I'I':----------------FISCAL YEAR 1988 - 89

------------------------------------ --------------------'--

·S- C.H.O~·O.L. NAME

AVERAGE

TOTAL

ADA ADA

EXPENDITURES *

IDLEWOOO SCHOOL

477

,,a17,S07.7Z

BROCKETT SCHOOL

-438

_____ ----- - ---l;747~o6r:-64

MONTGOMERY
~-

S-C. HOOL

AUSTIN SCHOOL

--MTi> VAT-cs-CFfo6L

438 437 ----------43-3

1,740,202.43
~-~~----
1,727,436.29
1,656,44~0

..
BCA41A

-·----··-- - - - · -

EXPENDITURES

P- E--R---

PUPIL
-· -· ..

3,810.28

. '3,988~'73

3...

,
~

9
-

7
~.

3
~

.--

0
..

6

3, 952.94

-----"'3-;a-zs-:>1 ____

-··-"·-·. "

OAKCLIFF SCHOOL CHESNUT SCHOOL MONTCCA I ICStHooc·- -- ------ -----·-

424

1,678,221.07

415

1,735,367.00

... 404---------,-~-)7-6,"!Qr.tta----------·----

3,9.5-8. .06 4,181.60 .3; 901.74

PLEASANTDALE SCHOOL STONE MILL SCHOOL BRIAR-Yl STA SCHOOC_________

403 400 ----393

1,555,800.28
·----··-
1,506,107.57 1,571,T4"2-;-25___

3, 860.54 3, 765.26 -- -----3, 870~ 59

SAGAMORE HILLS SCH NANCY CREEK SCHOOl OAK GROVE-- SCHOOC--- ---

391

1,451,648.74

383 381

1,592,161.68 -- __________ __ ----------1#7t8~,-038;-88

3,712.65 4,157.08
3,895~11

BRIARLAKE SCHOOL LAUREL RIDGE SCHOOL HAWTHORNE SCHOOL

367 357 - -- ---347

1,537,8-2-6-.-161,595,352.70
·· - ------r,3s-o;-3To:-s-2--

4,190.26 4, 468.77 .......... 3,977.84

MEDLOCK SCHOOL

325

1,437,658.08

4, 423.56

KINGSLEY SCHOOL EVANSDALE SCHOOL HIGHTOWER SCHOOL

314

1,370,803.,18

lu365.61

311

-T;330,Z74~0)

-4,29o.7o

273

.1-- ,248,303.45 ·------·--···---------4--,·572.54

INCLUDE SPECIAL EDUC4TION EXPENDITURES INCLUDE EQUI PMENt-;-iifA NSfE RS--0 ICTRANSPORT AT ION
.UDE FY 88-89 ACCRUALS INCLUDE TRANSFER OF TEACHERS FOR 'OSE OF EQUALIZING EXPERIENCE

-------------------------- ----

PAGE 3
I; • -- -- --- - II"'
l" \1
I"
•

- ---- ·- ---

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--~-----

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i·:· I. I
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I .,•

l:i•

--------- i
• !

-I ,,

!
li -·1·

~
]h

·~.

.·'I
L'
·•

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I•
r
r J

f.
I J

I I

I
i

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._)

CHOOL UMBER
220
256
200

08/31/89

DEKALB COUNTY SCHOOLS --------------------EGXEPNEERNADL ITOUPERREASTIOP-N~E-S=-R-P:C:..K:U~-P-1=12-=L)c.:__ _ _ _ __
FISCAL YEAR 1988 - 89

- - - - - - - - - - .. --"-----~---

SCHOOL NAME

AVERAGE

TOTAL

ADA ADA

EXPENDITURES *

-----B-CA41A.
EXPENDITURES PER PUPIL

HUNTLEY HILLS SCHOOL LIVSEY SCHOOL.

257
·-------~---25·3·--

1 ,263 .. 461 .. 11
r:;rss;-H3:94

4,916.19
---4;5 6 5 ~ 86

FORREST HILLS SCHOOL

201

- - 1
--~----

..

0

7

7~..- 1-7-0--.-2-8--

-

-

-

5, 359.05

-----------------------------------------

TYPE 1 TOTAL

221780 506 841467,609.07

3,707.97

PAGE 4

- - -~- -- ------ ·------ --- . ----------------

----~-------

1 NOT INCLUDE SPECIAL EDUC,TION EXPENDITURES
NOT INCLUDE EQUIPMENT, TRA~SFERS ~R TRANSPORTATION
INCLUDE FY 88-89 ACCRUALS 1 NOT INCLUDE TRANSFER OF TFAr~~~~ ~n~

-------------- --------- --------

SCHOOl NUMBER
147
187 400

08/31/89 SCHOOl NAME

~~~~nML Vr~nXI,UN~ \~-I£J
. EicPENoftTIRES--PER-PlifiiC___ _ FISCAL YEAR 1988 - 89
------------------------·-·---

BCA41A

AVERAGE

TOTAl

ADA ADA

EXPENDITURES *

EXPENDITURES PER PUPIL

CHAPEl HILL SCHOOL

1,004

3,063,376.76

3,051.17

FAIRING TON SCHOOL___________ --~---lfif--------2,631 ,a4i;iz.-----------··--- 3;021.63

SNAPFINGER SCH~OL

777

2,670,174.50

3, 436.51

332

RAINBOW SCHOOL

776

230 ---·---- 1NDi"AN--fifeeKs--c-.ro oL-----------611

2,590,234.13

3, 337.93

2,46Q;821-:4_6__________ -- 3, 667:39

425

STONEVIEW SCHOOL

148

CEDAR GROVE ELEM SCH

145

CANBY LANE SCHOOL

634 617 -------586

2,229,718.79 2,096,377.04 90- - ----r~-9so;o~;o·.

3,516.90 3, 397.69 3,327.71

120

AVONDALE ELEM SCHOOL

574

2,034,699.46

3, 544.77

115

ATHERTON SCHOOL

259

BOB MATHIS SCHOOL

542

1,933,866.90

----·-----512' _____ ··-- · - - 1 ~794; 467. 6a··

3,568.02 3, 504.81

310

PEACHCREST SCHOOL

478

1, 750,136.59

3,661.37

205

GLEN HAVEN SCHOOL

375

275

MIOWA Y SCHool:·---

- ---- -·-----348--

,,sn,737.77 - - - - - 1,478;-91"2~-33---

4,247.30 4, 249.80

-----------·-- --· --· .. ---

TYPE 2 TOTAL

8,765

626

30,277,432.03

3,454.35

·---- - - - - - - - - - - - - ·
·--··-· .. --·-··---·-- - ---------..----~~-------
DOES NOT INCLUDE SPECIAL EDUCATION EXPENDITURES DOES NOT INCLUDE EQUIPMENT~TRA~SFERS-3.-TRANSPORTATf6~ DO~S INCLUDE FY 88-89 ACCRUALS DOES NOT INCLUDE TRANSFER OF TEACHERS FOR
PURPOSE OF EQUALIZING EXPERIENCE

. PAGE 5

CHOOL UMBER 390 195 156 430 4( 240 460 210 154 lt1 0
~35
t86 02 '66

08/31/89 ..... - --------
SCHOOL NAME SKY HAVEN SCHO:>L FLAT SHOALS SCHOOL COLUMBIA ELEM SCHOOL TERRY Mill SCH:>OL TONEY SCHOOL KNOllWOOD SCHO:>L TILSON SCHOOL GRESHAM PARK-SCHOOL CliFTON SCHOOL LESLIE J STEELE SCH KELLEY LAKE SCHOOL WADSWORTH SCHO:>L HOOPER ALEXANDER SCH MEADOWViEW SCHOO[

DEKALB COUNTY SCHOOLS G. E- NEEXRPAELNDOIPTEURRAETSIO-PNESRPCUKP-11~12.::>:..:;___
FISCAL YEAR 1988 - 89

B CA41 A

AVERAGE

TOTAL

ADA ADA

EXPENDITURES *

EXPENDITURES PER PUPIL

846 700

2, 723,624.74
---- · ----·--'2-;l31G4cfz~fo-

3,219.41 3,340.57

684

2,243,974.98

3,280.66

676

2,301,391.07

637

---·z-; 13 s;2 ·ra:75 ·· -

3,404.42 3, 356.70

586

1,999,503.95

3,412.12

577 ····· -------526

2,048,406.45
-----,-;9-s-s ;-6 5o;n ·- ----- ·

3,550.09 3,723.66

473

1,685,527.71

3,563.48

439

,,659,974.15

438 -- -------·1;601 ;ss1:. 95

31781.26 3, 656.52

427

1,598,228.85

3, 742.92

409

1,673,993.56

4,092.89

--385- -------- ------175'2-9-;--ooo.cn·--- --- ------ - 3; 972.98

TYPE 3 TOTAL

7,803 557 27,501,055.30

3,524.42

PAGE 6

NOT INCLUDE SPECIAL EDUC~TION EXPENDITURES NOT INCLUDE EQUIPMENT, TRA~SFERS OR TRANSPORTATION INCLUDE FY 88-89 ACCRUAlS
NOT INCLUDE TRA~SFER OF TEACHERS FOR
OtiPOnt"'r- ,....,. _,....,.,, • - - · · -

SCHOOL NUMBER

08/31/89 SCHOOL NAME

EXPENDITURES PE~ PUPILFISCAL YEAR 1988 - 89

BCA41A

---------------------· ·--------··

AVE RAGE

TOTAL

ADA ADA

EXPENDITURES *

EX PEN 0 I TURES PER PUPIL

------

---------·--·-··-···- ..

ELEMENTARY TOT~L

39,348·-- - -""5"39___ 142#246,096-.:40-

----------------···-------------------------·

3,615.07

PAGE 7

--------· -··--------- ··--··--· --------
. -·- -- ---·---··-----------------·-------
DOES NOT INCLUDE SPECIAL EOUC~TION EXPENDITURES DOES NOT INCLUDE EQUIPMENT, TR,~SFE~S OR-TRANSPORTATION DOES INCLUDE FY 88-89 ACCRUALS DOES NOT INCLUDE TRANSFER OF TEACHERS FOR
PURPOSE OF EQUALIZING EXPERIENCE

SCHOOL NUMBER
567 557 535 580 549 573 525 555 593 565 568 533 581 570 529 522

08/31/89

DEKALB COUNTY SCHOOLS GENERAL OPERATIONS <K-12> ···-------E-XPEND-ITURES PER PUPIL
FISCAL YEAR 1988 - 89

8CA41A

SCHOOL NAME REDAN HIGH SCHJOL LITHONIA HIGH SCHOOL DUNWOODY HIGH SCHOOL STONE MTN HIGH SCH HENDERSON HIGH--SCH SHAMROCK HIGH SCHOOL CLARKSTON HIGH SCH LAKESIDE HIGH SCHOOL TUCKER HIGH SCHOOL PEACHTREE HIGH SCH MILLER GROVE SCHOOL DRUID HILLS HI~H SCH STONE MTN II SCHOOL SEQUOYAH HIGH SCHOOL CROSS KEYS HIGH SCH CHAMBLEE HIGH SCHOOL

AVERAGE

TOTAL

ADA ADA

EXPENDITURES *

,,486

5,308,682.86

1 ,41 0 . ···-------s;-44 4--;r9·9:· 8 2· ---·- ---

1,332

5,084,698.39

1 ,299

5,283, 568.91

-- 1, 221 _______ ---7;;7n;·2 H:·9·s·-----

1 ,220

4,908,696.81

1 ,203

4,902,914.60

. _ __ ···-·-------,1-64·--------4-~~9..,938-:79

1 ,117

4,431,994!.92

1,071

4,135,898.24

,.,018 ----· ----------3,622,236.34

899

4,059,268.41

875

.3,326,690.25

· ·-· 772 ------------3;sn7;ssT:Tr ----- ·

725

3,791,105.05

708

3,505,608.47

EXPENDITURES PER PUPIL 3,572.46 3,861.13 3, 817.34 4, 06 7. 41 3,860.16 4,023.52. 4,075.57 4,243.93 3,967.76 3, 861 • 71 3,558.18 4,515.31 3,801.93 4, 543.45 5,229.11 4,951.42

---------

TYPE -- -~

1 --T-O·-T-A--L--

---------

17,520 1095 70,966,31 o. 92

·------------- --- ···- >.~--

* * *

DOES NOT INCLUDE SPECIAL EDUC~TION EXPENDITURES DOES NOT INCLUDE EQUIPMENT, TRA~SFERS OR TRANSPORTATION DOES INCLUDE FY 88-89 ACCRUALS

- -·-----

* DOES NOT INCLUDE TRANSFER OF TEACHERS FOR

PURPOSE OF EQUALIZING EXPERIENCE

------------

4,050.58

.. PAGE

DEKALB COUNTY SCHOOLS

08/3ii89

---- --·-----G·ENEEiPREAiliHOfPtEHRiAesTIOPNERS P<UKP-1IL2>_____ -----

EicA41A

PA

FISCAl YEAR 1988 - 89

i

SCHOOL

AVERAGE

TOTAL

EXPENDITURES

I

NUMBER

SCHOOL NAME

·--------------A-O-A~~--~ADA

EXPENDITURES *

PER PU-P-IL----------------

576

SOUTHWEST DEKAL1 H S

1,274

5,239,406.53

lu11_2.S6

>.1

585

ToweRs i1f6i-i sciioor · ....

1;060 . -·---- ·-·-· ....... 4; 9"{"[;; 119: 56·---- · ·--- -- 4, 69 s:m·- - ··-· ·- ·- - ··--

508

AVONDALE HIGH SCHOOL

- - - · - - · -8-89- - - - -

-.

4,6·4-5-,3-5·3-.0-9- - - - - - ·

--

-

--

·5-,·2-2-5-

.36
···-

·

--

-

-

·-·------

519

CEDAR GROVE HIGH SCH

732

3,514,467.00

4,801.18

TYPE 2 TOTAl

3,955 988 18,375,946.18

4, 646.25

··-- .. ·----·--------· - - - - - - - - - - ... -----·--·· ~---·--
-------·-··-------· ----·---·· ···--- ----

, .• 1
"I

------- ·----------------------------------------------

"I
...I
,'I,

• DOES NOT INCLUDE SPECIAl EDUC4TXOH £XPENOltUR!$

• *
*

DOES Not INcLUDE eijiHPMENt, fiHf5FeRs·:ofri'ANsPoRr'Arm--DOES xNcLuDE FY 88-89 ACCRUALS
DOES NOT INCLUDE TRANSFER Of TEACHERS FOR

'I

PURPOSE OF EQUALIZING EXPERTENCE - - - - - - - - - - - ·

-----------

SCHOOL NUMBER
527
595
544

08/31/8 9-------------------

DEKALB COUNTY SCHOOLS GENERAL OPERATIONS (K-12>
EXPENDITURE$ PER PUPll FISCAl YEAR 1988 - 89

------·- ·--·-·---- ----- ·---·----~--

SCHOOL NAME COLUMBIA HIGH SCHOOL

AVERAGE

ADA
-·-·- ----~---

ADA

1,046

TOTAL
EXPEND UURES *
5,151,182.65

MCNAIR SR. HfG_H_SC H~------ ------- --- ·-------848

4,372,552.46

MCNAIR JR.HIGH SCH.

834

4,019,546.89

B CA41 A
EX PEN DI TURES PER PUPIL
4,924.64
·-·s-;156~31
4,819.60

- - - - ----~-----·

- - - - - ----··-·--~

TYPE 3 TOTAL

2,728

909

13,543,282.00

---------- --------

4,964.54

PAGE 10

---·-·-·· ·-. ---· - -------------··------------

----·------·-- ·- --·-·

------------------------ ...
* DOES NOT INCLUDE SPECIAL EDUCATION EXPENDITURES * DOES NOT INCLUDE EQUIPMENT, TRA~SFERS ~~ TRANSPORTATION
* OOES INCLUDE FY 88-89 ACCRUALS * DOES NOT INCLUDE TRANSFER OF TEACHERS FOR
o11oon~c nr: callA I r 7 Tlllk FllPFR fENCE

SCHOOL NUMBER

U!S/.)1/!S'I
SCHOOl NAME

EXPENDITURES PER PUPIL FISCAL YEAR 1988 - 89

BCA41A

---------------~-----------

_____ AVERAGE

TOTAL

ADA

*- ADA--···--.,..._..- _E___X_,..P._...ENDITURES

~---

EXPENDITURES PER PUPIL

HIGH SCHOOL TOTAL

24,203 1052 102,885,539.10

4,250.94

------------ ------ -----··

----·--- ___________,

PAGE 11

- - - ···- -· --·-·----~------------· ----~---

-- - - ·····-------- -----------~--- ----------------------~~---

---------------------------

DOES NOT INCLUDE SPECIAL EDUCATION EXPENDITURES DOE~ NOT )NCLUDE EQUIPMENT;-TRA~SFERS OR TRANSPORTATION
DOES INCLUDE FY 88-89 ACCRUALS DOES NOT INCLUDE TRANSFER OF TEACHERS FOR
PURPOSE OF EQUALIZING EXPERIENCE

SCHOOL NUMBER

08/31/89 SCHOOL NAME

SYSTEM TOTH
.. - ·---- --- -----------·---

DEKALB COUNTY SCHOOLS GENERAL OPERATIONS <K-12)
EXPENDTfUHs PER PUP I'..;;t.'-'------------····

FISCAL YEAR 1988 - 89

... ··-------------------·----·

AVERAGE

TOTAL

ADA ADA

EXPENDITURES *

BCA41A
EXPENDITURES PER PUPIL

----- ._ ----- .. __

···--· . --~-------------------

65,815

664. 253,171 ;329.03

3, 846.71

------------···------·--·

PAGE 12 -·.

__,____, ________________

DOES NOT INCLUDE SPECIAL EDUCATION EXPENDITURES
DOES NOT INCLUDE EQUIPMENT, TRANSFERS OR TRANSPORTATION DOES INCLUDE FY 88-89 ACCRUALS DOES NOT INCLUDE TRANSFER OF TEACHERS FOR
PURPOSE OF EQUALIZING EXPERIENCE

-- --- -

---- ---~---·

EXHIBIT "B"

.-"/ I ~-:

.,,'

08/24/89

DEKALB COUNTY SCHOOLS GENERAL OPERATIONS <K-12>
EXPENDITURES PER PUPil
FISCAL YEAR 1988 - 89

SCHOOL NUfiiBER

SCHOOL NAME

AVERAGE

ADA

ADA

257

MAINSTREET SCHOOl

1.115

320

REDAN EtE~ SCHOOl

420

STONE MTN ELE SCHOOL

1·006 848

492

WOODRIDGE SCHOO~

832

3

l98

S~OKE RISE SCHOOl'

776

344

ROCKBRIDGE SCHOOL

729

178

OUNAIRE SCHOOL

655

176

DRESDEN SCHOOl

633

325

CARY REYNOLDS SCHOOL

633

146

MURPHEY CANDLER SCH

618

108

At.LGOOD SCHOOl

614

260

MCLENDON SCHOOL

603

348

ROWLAND SCHOOL

595

~-.o

ROCK CH~PEl SCHOOL

591

7

190

FERNBANI( SCHOOl

584

496

WOODWARD SCHOOl

562

212

HAI'tBRICK SCHOOl

554

232

JOLLY SCHOOL

513

484

VANDERLYN SCHOOL

503

215

HENDERSON Milt SCH

499 .

11~0

ASHFORD PARK SCHOOL

495

NO~

~c

DOES 'C!INCLUDE SPECIAL EDUCATION EXPENDITURES

DOES t

INCLUDE EQUIPMENT, TRANSFERS OR TRANSPORTATION
·--- -· ...... ,.._ .,,....,..."'''••r

TOTAL
EXPENDITURES *
3,301,915.54 3,058;149.55 2,762,557.07 z,r.z6,842.61z,szz,977.41 2,566,094.17 2,133.>5~.~ .. 10 2,245,403., 91
z, 31 ft,6:Sl. :>G
z,os2..,185.9Ci 2r118;102.2~ 2,207,302.79 1r916r895.,69 1;.903,565.30 2.. 038,243 .. 74
2r139r804.~1
2r027r314.0? 1r887r019.38 1r845,748.96 1 ;885 ;.1 02. 7~ 1,86!h302.57

A~ttt~t•l 4tt Ao II

- --· -atK¢1r-

~~z--

EXPENDITURES PER PUPIL 2,961.35
3;;'0~~------------
·- 3r257.73 ----------------------
2,916.87
... ~~~51";75
3,520.01 3r257.01 - - 3#54(.;~--------,-· 3,656.61 3.369.23
3# 5 tt7-;; 3-fl- -- --- ... - - ----- --·-----------
3r660. 53 3,221.67 3i221J. -f~Z - ·- - ---3,490.14 3,807.48 3, 6 59'-;-tt1·--- .. 3r678.40 3·669.48 3#77f.'Ni' 3r774.34
· - - ·------- ------------

iCHOOL
~UMBER
220 256
200

08124189
SCHOOL NAME HUNTLEY HILLS SCHOOL LIVSEY SCHOOL FORREST HILLS SCHOOL

TYPE 1 TOTAl

DEKALB COUNTY SCHOOLS GENERAL OPERATIONS (K-12>
EXPENDITURES PER PUPil FISCAL YEAR 1988 - 89

AVERAGE ADA ADA
257
253
201

TOTAL
EXPENDITURES *
,,235.,746.11 ,.,155,163.94 1,030,449.28

BCA41A
EX?ENOITURES ?ER PUPIL 4,808.35 . 4;.565.86 5.. 126.61

PAGE 4

u., 780

506

82,670.,534.07

3i629;os-----

- ·-· --·- -------------··--·---

DOES ' DOES
DOES
DOES

I~CLUDE SPECIAL EDUCATION EXPENDITURES
NCLU)E EQUIP~ENT, TR~NSFERS OR TRANSPORTATION ~E F1 88-89 ACCRUALS
,oe TRANSFER OF TEACHERS fOR
~ose OF EQUALIZING EXPERIENCE

SCHOOL
~UMBER
147 187 400 332
30 425 148 145 120 11 5 259 310 205 275

08124/89
SCHOOL NAME CHAPEL HilL SCHOOL FAIRINGTON SCHOOL SNAPFINGER SCHOOL RAINBOW SCHOOL INDIAN CREEK SC~OOL STONEVIEW SCHOOL CEDAR GROVE ELE~ SCH CANBY LANE SCHOOL AVONDALE ELEM SCHOOL ATHERTON SCHOOL BOB "ATHIS SCHOlL PEACHCREST SCHOOL GlEN HAVEN SCHOOL 1''11 D1o1 AY SCH0 Ot

TYPE 2 · TOUL

DEKALB COUNTY SCHOOLS GENERAL.OPERATIONS <K-12>
EXPENDITURES PER PUPil
FISCAl YEAR 1988 - 89

AVERAGE ADA ADA 1,004 871 777 176 671 634 617 586 574 542 512 478 375 348

TOTAL
EXPENDITURES *
J,1S6 .. 606.76 2.. 651.,814. 72 21741 .. 389.50 2.. 681 .. 181.13 2,612 .. 807.46 2.. 318 .. 291.79 2.. 176.. 982.04 2.. 007 .. 798.90 2,135,247. 46 2.. 014 .. 531.90 1 .. 853 .. 102.68 1.. 791 .. 580.59 1... 611 .. 259.77 1.. 508 .. 930.33

8.. 765 626 31 .. 264 .. 525.03

• DO • DO

INClUDE SPECIAl EDUCATION EXPENDITURES INCLUDE EQUIPMENT, TRANSFERS OR TRANSPORTATION
.. ~., t:" RB-89 ACCRUALS
---""" 1"'1\D

BCA4H - ..

··--·

---'PAGE

5

EXPENDITURES ;,ER PUPIL

3,144.03 3;'048.00'' ----- - -"" ------------------

3.. 528.17
---- ·--·-·-------
3.. 455.13

3,893~90

3.. 656.61

~

~---··----

3,528. 33

3.. 426 .. 27

3 .. 719~94

3.. 716.84

3,619.H

3.. 748.07
------- -
4 ... 296.69

.4.. 336.00
--- - -~·-- ----- -- ---··

-- __..__ -· ·- ----·-- ..

- ....

' ·-·

3,566.97

----------

--· ----

--- -· ---- ---·- -- ....... - -

SCHOOL NUMBER
390 195 156 430
5
240 460 210 154 410 235 486
102 266

08124189
SCHOOL NAME SKY HAVEN SCHOOL FLAT SHOALS SCHOOL COLUMBIA ELEM SCHOOL TERRY Mlll SCHOOl TONEY SCHOOL KNOLLWOOD SCHOOL TILSON SCHOOL GRESHAM PARK SCHOOL CLIFTON SCHOOL LESLIE J STEELE SCH KELLEY LAKE SCHOOL WADSWORTH SCHOOL HOOPER AlEXANDER SCH MEAOOWVlEW SCHOOL

TYPE 3 TOTAL

OEKALB COUNTY SCHOOLS GENERAL OPERATIONS (K-12>
EXPENDITURES PER PUPil
FISCAL ·YEAR 1988 - 89

AVERAGE

ADA

ADA

846

700

684

676

637

586

577

526

473

439

438

427

409

385

TOTAL
EXPENDITURES *
2,.769,816.74 2,.39fu679.10 2,.318,.062.98 i!.r 33iu176. 07 2,246,.311.75 2,.095,.651.95 2,087,.552.45
z,.o~tt.,.:sso.11
1,703,671.71 1,706,.453.15 1 ,637 ,255. 95. 1,702,.435.85 1,.7:53,.490.56 ,,ssz,z93.93

7,803 557 28,356 .. 832.30

SCA4H

.. - --PAGE- 5

EXPENDITURES
PER PUPIL----------------------------
3,.274.01 3,420.97•• -···· -----·---- -----
3.. 388 .. -98---·-·-----·-------------·
3,453.81.
3 .. 526.39 3,576.19 3,.617.94
3,886.65 3,601.84 3,887.13 3,738.02
3 .. 986.96 4,238.H 4 .. 109.85

------ -· --------~----

~----

3,634.09

DOES OGE
OOf

"NCLUDE SPECI~L EDUCATION EXPENDITURES
NCLUDE EQUIPMENT, TR~NSFERS OR TRANSPORTATION PE FY 88-89 ACCRUALS ·~ TaA~cttD nr TFACHERS FOR

----------------------

SCHOOL NUMBER

08/24/89 SCHOOL NAME

ELE~ENTARY TOTAL

DEKALB COUNTY SCHOOLS GENERAL.OPERATIONS CK-12>
EXPENDITURES PER PUPIL FISCAL YEAR 1988 - 89

AVERAGE

TOTAl

ADA ADA

EXPENDITURES *

BCA41 A - --

- - - - PAGE 7-

EXPENDITURES
!»ER PUPIL---------------------------

39,348 539 142;291,891.40

31'616;;2-tt

DOES DOES DOE
()Q~

UDE SPECIAl EDUCATION EXPENDITURES 'E EQUIPMENT, TRANSFERS OR TRANSPORTATION 88-89 ACCRUAlS
.NSFER OF TEACHERS FOR - ........... ,.,,.,.,r C\/OC'DTr:MrJ:

SCHOOL NUMBER
567 557
535 580 'i49 573 525 555 593 565 568 533
581
570 529 522

08124/89
SCHOOL NAME REDAN HIGH SCHOOl liTHONIA HIGH SCHOOl DUNWOODY HIGH SCHOOl STONE MTN HIGH SCH HENDERSON HIGH SCH SHAMROCK HIGH SCHOOL ClARKSTON HIGH SCH lAKESIDE HIGH SCHOOl TUCKER HIGH SCHOOL PEACHTREE HIGH SCH MILLER GROVE SCHOOL DRUID HILLS HIGH SCH STONE MTN II SCHOOL SEQUOTAH HIGH SCHOOL CROSS KEYS HIGH SCH. CHAMBLEE HIGH SCHOOL

DEKALB COUNTY SCHOOLS GENERAL OPERATIONS <K-12J
EXPENDITURES PER PUPIL (ISCAL YEAR 1988 - 89

AVERAGE ADA ADA 1.. 486 1.. 410 1.. 332 1 .. 299 1 .. 221 1 .. 220 1.. 203 1.. 164 1.. 117 1 .. 071 1 .. 018 899 875 772 725 708

TOTAL
EXPENDITURES *
51262 .. 037.86 51444 .. 199.82 5.. o3i.. 368!'39 5.. 363 .. 885.91 4.. 713 .. 259.95 41938 .. 180.81 4., 85·8, 446. 60 4 .. 898,918.79 4.. 431 .. 992.92 4.. 079 .. 168.24 3·622 .. 236.34 4.. 0831762.41 3.. 326.. 690.25 3.. 507 .. 551.11
3.. 6n .. 444. o5
3.. 457 .. 133 .. 47

BCA41A

PAGE 8

EXPENDITURES :2ER PUPIL
·-~ ---·-------
3 .. 541.07

3 .. 861.;13

3.. 778.05 4 .. 129.24

·--- _________,_

3,860.16

4,047.68 -------
4.. 038.60

4 .. 208.69

3.. 967.76

3.. 808.74

3.. 558.1!1

4.. 542.56

3.. 801.93

.4.. 543.45
s.. o75.o9

4 .. 882.95

·- ----- ------- ···--· ------- --· ··--- ----··- -------- ----·
--- - - - - -

TYPE 1 TOTAL

17 .. 520 1095 70 .. 699 .. 276.92

DOES NOT INCLUDE SPECIAL EDUCATION EXPENDITURES DOES NOT INCLUDE EQUIPMENT, TRANSFERS OR TRANSPORTATION DOES INCLUDE FT 88-89 ACCRUALS DOES INCLUDE T~ANSFER OF TEACHERS FOR

lu035.34

SCHOOL NUMBER
576 585
508 519

SCHOOL NAME SOUTHWEST OEKALB H S TOWERS HIGH SCHOOL AVONDAlE HIGH SCHOOL CEDAR GROVE HIGH SCH

TYPE 2 TOTAl

t!~CAL YEAR 1988 - 89

AVeRAGE

ADA

ADA

1 .. 274

1,060

889

732

TOTAl
EXPENDITURES *
5.. 262 .. 448.53 4;998 .. 099.56
4 .. 687,175.09 3.. 514,467.00

01..~'+111\
EXPENDITURES PER PUPIL 4 .. 130.65 4 .. 715.18 5.. 272.41 4 .. 801.18

3 .. 955

988

18 .. 462 .. 190.18

4 .. 668.06

PAGE 9

:s NOT INCLUDE SPECIAl EDUCATION EXPENDITURES :s Nor INCLUDE EQUIPMENT, TRANSFERS OR TRANSPORTATION
S INCLUDE FY 88-89 ACCRUAlS :s INCLUDE TRANSFER Of TEACHERS FOR
PURPOSE OF EQUALIZ-ING EXPERIENCE

-·-· --,~·-----------·------------------
--------

SCHOOl NUMBER
527
595
544

08/24/89
SCHOOL NAME COLUMBIA HIGH SCHOOL MCNAIR SR.HIGH SCH. MCNAIR JR.HIGH SCH.

TYPE 3 TOTAL

DEKALB COUNTY SCHOOLS
GENERAL OPERATIONS <K-12> EXPENDITURES PER PUPIL FISCAL YEAR 1988 - 89

AVERAGE

ADA

ADA

1,046

848

834

TOTAL
EXPENDITURES *
5,2411025.65 4,472,404.46 4,::)19,546.89

SCA41A ----

PAGE -10

EXPENDITURES
PER- -P-U-PI-L- - - - - - - - - - - - - - - - - - -
5,010.54
5,274.06
4,819.63

2,728 909 n, 732,977. oo

5;034.08 ------- ---------

- - ---··--- ----

--·------·----

DOES ~OT INCLUDE SPECIAL EDUCATION EXPENDITURES DOES NOT INCLU)E EQUlP~ENT, TRANSFERS OR TRANSPORTATION DOES INCLUDE FY 88-89 ACCRUALS DOES iNCLUDE TRANSFER OF TEACHERS FOR

. ··-. ---

-· ----·----·--·-

CHOOL UMBER

08/24/89 SCHOOL NAME

HIGH SCHOOL TOTAL

DEK~La COUNTY SCHOOLS GENERAL OPERATIONS CK-12>
EXPENDITURES PER PUPil FISCAL Y~AR 1988 - 89

AVERAGE

TOTAL

ADA ADA

EXPENDITURES *

BCA41A
EXPENDITURES :JER PUPIL

f'AG"E · 1i

Z4,203 , 052 102,894,444.10

4, 251 • 30 . ---- - --- ... ·---------

S NOT INCLUDE SPECIAL EDUCATION EXPENDITURES S NOT INCLU~E EQUIPMENT, TRANSFERS OR TRANSPORTATION S INClUDE FY 88-89 ACCRUALS
S INCLuDE TRANSFER OF TEACHERS FOR

--·------··-----

SCHOOL NUMBER

08/24/89 SCHOOL NAME

SYSTEM TOTAL

DEKALB COUNTY SCHOOLS GENERAL OPERATIONS (K-12)
EXPENDITURES PER PUPIL
FISCAL YEAR 1988 - 89

AVERAGE

TOTAL

ADA ADA

EXPENDITURES *

BCA41A

. ---- --·--- --~Al>E - 12

EXPENDITURES ::tER PUPIL

65,815 664 253,129,156.03

3,846;07" .

•OES ~OT INCLUDE SPECIAL EDUCATION EXPENDITURES
•OES ~OT INCLUDE EQUIP~ENT, TRANSFERS OR TRANSPORTATION •OES INCLUDE fY 88-89 'CCRUALS
•OES l~CLUDE TRANSFER OF TEACHERS FOR PURPOSE OF EQUALIZING EXPERIENCE

CERTIFICATE OF SERYICE
This is to certify that I have this day served counsel for the opposing party in the foregoing matter with a copy of the attached by depositing a true copy of same in the United States Mail with adequate postage affixed thereon as follows:

Kathleen L. Wilde 44 Forsyth Street, N.W. Suite 202 Atlanta, Georgia 30303
Marcia w. Borowski
Stanford, Fagan & Giolito
Suite 238 1401 Peachtree Street, N.E. Atlanta, Georgia 30309
Cbsu..r-- Thisj l,tf- day of

1 1989.

WEEKES & CANDLER, P.C. Post Office Box 250 Decatur, Georgia 30031
(404) 378-4300

 
 183
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Civil No. C-11946
WILLIE EUGENE PITTS, et al.
versus
ROBERT FREEMAN, et al.
ORDER [Filed Oct. 31, 1985]
The instant action is before the court on remand from the United States Court of Appeals for the Eleventh Circuit. A summary of the ease's histo,ry is necessary for an understanding of its current procedural posture. The plaintiffs filed this lawsuit in 1968, claiming that defendants operated a racially segregated school system in DeKalb County, Georgia. In 1969, the court enjoined defendants from further racial discrimination, and set forth a plan to speed desegregation.
Plaintiffs again sought the court's assistance in 1976, claiming that defendants had violated the 1969 order. In the 1976 order, the court created a bi-racial committee to advise the school bo,ard and approve zone changes and school site purchases. The court also made ce,rtain modifica~tions in the majority to minority (M-to-M) program.
Later orders were erntered in 1977 and 1979. The earlier order concerned a zon:e change; the latter the M-to-M program. In both decisions, the court noted that

184
within the county the housing patterns were changing rapidly: blacks were moving in and whi•te were moving out. This pattern in turn caused racial transitio,IJ1 in the schools.
The next action taken in the case concerns the remand before· the court. In 1983, plaintiffs sought an injunction claiming inter alia that the use of portable classrooms at Redan High School and the proposed building of a new school (Redan II) within the Redan attendance zone promoted segregation. The portable classrooms and Redan II were planned to alleviate severe overcrowding within the zone. Redan II would be an 8th and 9th grade school.
The court held a tria:l on the merits on February 1, 2, 3, 6, and 10, 1984. At the conclusion of the trial, the court made oral findings that defendants. did not intend to discriminate and that Redan II did not have an adverse impact upon integration. (Tr., Vol. V, at 824). The court also found that plaintiffs' proposed alternatives•, the "Rainbo·w" and "Lithonia" or "Stolee" plans, would create more segregation than currently existed. (Id.)
On February 22, 1984, the court enrtered written findings of fact and conclusions of law. Noting that the school system had been converted from dual to uni,tary in 1969, the court determined that plaintiffs had to prove defendants' intent to discriminate. Plaintiffs did not meet this burden. Although the order did not state specifically that Redan II had a nonsegregative effect, the court's findings indicated that such was the case.
The Eleventh Circuit reversed and remanded the cas.e on March 22, 1985. Pitts v. Freeman, 755 F.2d 1423 (11th Cir. 1985). Noting that the district court had stated that the DeKa.lb school system was. unitary, the appellate court cited a line of Fifth Circuit cas.es establishing the procedure to be followed in concluding school desegregation cases. A previously segregated dual system does not become des.egregated automatically because a

185
constitutionally acceptable plan is implemented. The ultimate goal is achievement of a unitary system. To conclude a case, the district court must hold a hearing to determine if the system is unitary. Plaintiffs should receive notice to allow them an opportunity to show the court why jurisdict1on should be retained. Since· the ease was not being termiTIJated, the district court had not followed this procedure. ld. at 1426.
The appellate court noted that as defendants pointed out, the use of the word "unitary" in ti1e district court's order may not have referred to that status which closes a case, but may have meant that a oonstitutionally acceptable plan was implemented. Nonetheless, p1aintiffs did not have to prove discriminatory intent, which is required only after a finding of full unitary s:tatus. Id.
The court of appeals did not suggest that a hearing be held to determine whether the Bystem is unitary. Rather, it appareill,tly assumed that unitary status had not been accomplished. "Until the DeKalb County School System achieves unitary s.tatus, it has an affirmative duty to eliminate the effects of i1ts prior unconstitutional conduet." Id. This duty specifically includes new school construction, to insure that it does not s.erve to perpetuate or reestablish the dual system. ld. The 1969 decree applied these duties to the county. ld. at 1426-27. "Therefore, the . . . Board . . . has an affirmative duty to solve the Redan High School overc~owding problem in such a way that it furthers desegregation and helps eliminate the effects of the previous dual school system." ld. at 1427. The court went on to state that in light of the county's affirmative duty to desegregate, it was error to hold that plaintiffs had to prove discriminatory intent. "Until the ... System . . . aehie·ves unitary status, official action that has the effect of perpetuating or rees,tablishing a dual school system violates the defendants' duty to desegregate." Id. (emphasis in the original).

186
The oourt of appeals thus remanded "for the district court to do what it expressly declined to' do before': examine the segregative and desegregrutive effects of the defendants' actions." Id. The appellate command does not require the district court to select the most desegregative alternative. Id. "[T]he district court should study ... alternative solutions to the overcrowding problem to find the solution that best solves the problem in light of the valid educational concerns and other practicalities voiced by the defendants if the system is attempting to achieve greater desegregation." Id. If progress on Redan II has mooted an injunction against its construciton, the court possibly could enjoin use of the facilities as planned. Id. Finally, the appellate court stated that some of the district court's findings argued in favor of defendants' plans, bUit that erroneous standards were used.
The court held a telephone conference with counsel for plaintiffs and defendants on July 3, 1985. The court requested that the parties comment as to the course of action to he taken in view of the remand. In its letrte·r of July 12, 1985, defendants stated that the court should not receive additional evidence. At the trial, the parties had presented evidence of Redan II's effects, as well as that of plaintiffs' alternatives. Defendants therefore believed that the court should determine specifically the segregative e·ffect of these alternatives.
Plaintiffs' le1tter of July 15, 1985 noted that Redan II is almost complete. Therefore, the court should determine how the school must be used. Plaintiffs offered two suggestions for the use of Redan II. The first was for an 8th grade school with students transferrring across attendance zones. Its. second option was for a 7th and 8th grade school. This plan also would require students from different zones to attend other schools.
Plaintiffs presented no evidence and little explanation of these options. It requested thwt defendants analyze the

187
alternatives. At that point, plaintiffs could respond to the analysis, and the court could rule on the' alternatives.
After reviewing the above mentioned letters, the court decided that a hearing would be helpful. Accordingly, a hearing was held on August 23, 1985, with counsel for all parties present. Plaintiffs suggested that the court redraw attendance lines to conform with their new alternatives. They claimed :that such action would provide a greater desegregative effect than defendants' proposal, because more sehools. would be included.
Defendants asserted that the court should reanalyze the record and compare their plan with plaintiffs' old alternatives. Additionally, they presented charts showing the percentages of black enrollment in the elementary and secondary schools covered by plaintiffs.' proposals, as well as a comparis.on of the new proposals using fall 1984 actual enrollments. The charts showed that black enrollment is rising in e·very cited school. The comparison indicated that the plaintiffs' plans would increase black enrollment in Redan II to make it a majority black school.
Plaintiffs infmmed the court that they had prepared a mme complete description of their plans. They reques.ted some time to present their own analysis, which the court granted. Defendants were given an equal amount of time to respond. Additionally, defendants agreed to provide the court with the actual 1985 enrollmernt figures, which would be available around September 20, 1985. In answer to the court's questi·on, plaintiffs averred that they agree to the accuracy of these numbers.
Plaintiffs filed a letter with a brief analysis of their plans.1 Because plaintiffs had not filed a brief, defend-
1 Local Rule 215-2 (b), NDGa., restricts letter communication to the court. In the instant case, both sides have been filing lettrs instead of motions or briefs. Therefo.re, the court puts the parties on notice that any further communication with the court should

188
ants informed the court that they were not going to respond. Defendants instead filed the aetual 1985 figures. Plaintiffs have not replied to or commented upon these figures. Therefore, the court has be:fore it the original evidence in the case, plaintiffs' brief descriptio:n of its plans including its estimates of attendance, and defendants' charts as presented at the hearing and as updated in its September 24, 1985 submission.
Obviously, the court would prefer more info,rmation to evaluate the alternatives. Unfortunately, the court was not given this da:ta, and thus must base its decision upon the information befo,re it.
First, the court concludes that it must evaluate and compare defendants' plan and plaintiffs' new alternatives. The previously proposed plans assumed that Redan II would not be built. With its cons,truction virtually complete, howevm~, these plans, lose their efficacy. Plaintiffs agree with this obs,ervation. Additionally, the Eleventh Circuit held that the district court on reconsideration need not enjoin the planned expansion of Redan High School if construction of the facilities has mooted such action. "[H]owever, the defendants. will proceed at their own risk. One result could be the, enjoined use of the facilities as planned." 755 F.2d at 1427. The pnogres~S< of construction has mooted the option of enjoining the building of Redan II. Therefore, the court must consider whether defendants' plan should be enjoined in favnr of plaintiffs' new alternatives.
As the court reads the Eleventh Circuit's mandate, the next step is to determine whether defendants considered integration in formulating their plan, and to "examine the segregative and desegregative effects of the defendants' actions." 755 F.2d at 1427. To complete this task,
be my way of briefs or motions and not letters. Defendants may continue to file their annual reports with the court as they have done in the past.

189
the court can look to some of the evidence presented in the trial which discussed the effect of the Redan II plan. Defendants have supplemented the evidence with actual 1984 and 1985 enrollment figures.
The reason behind defendants' plan is overcrowding in the Redan attendance zone. No one disputes that Redan High School is overcrowded. Defendants' solution was to build Redan II as an 8th-9th grade facility. Plaintiffs concede that Redan II would relieve overcrowding, but allege that it merely was a means of keeping Redan majority white and surrounding districts majority black. They claim that Redan II's effect would be further segregation, not integration.
The evidence presented at trial demonstrates that defendants took desegregation into consideration when deciding upon the Redan II plan, and that their alternative does not have a segregative effect. Instead, it aids integration. First, it opens up space for M-to-M transfers to Redan, which previously had not existed. Dr. Armor, defendants' witness, testified that many black students in DeKalb County had sought M-to-M transfers to other white schools. He did not believe that Redan would be an exception. More integration within Redan thus would occur. Additionally, the M-to-M openings would attract black students from neighboring majority black schools, which would increase desegregation in those areas.
At trial, the evidence indicated that the Redan zone had a growing indigenous black population. The number of black children in that area's schools was predicted to rise and approximate the county wide school system's white/ black ratio. At the time of trial the school system was 38% black. Currently, it is 40% black. Redan's black population is growing. The area is developing into a stable na.turally integrating community. To tamper with it could well upset the racial balance.
Defendants' 1984 and 1985 enrollment figures validated its trial evidence. In 1984, the percentage of black

190
students in Redan High School rose from 16% to 17.1%. The 1985 figures showed an increase to 22.3%. These numbers bear out predictions of increased black growth in the Redan area. The growing black school population is indigenous, because no M-to-M transfers are possible.
Defendants also used the recent enrollment figures to calculate the proposal's effect on racial composition of Redan II. Under the plan without M-to-M transfers, the 1984 black percentage would be 19% ; the 1985 percentage is 24%. With 100 M-to-Ms, blacks will make up 31% of the student body. Two hundred M-to-Ms would result in a 36% black population. Because the current black ratio of whi,te to black children countywide is 60/40, the M-to,.. M transfers will move Redan closer to the ideal rate. Even withount M-to-Ms, the growing indigenous black population will result in more of an ideal racial balance in Redan schools.
The court also has examined some effects of Redan II that could be considered segregative. Redan still will be a majority white school, and Southwest DeKalb and Towers will be majority black schools. This flaw is not fatal, however. The main effect of Redan II will be to alleviate overcrowding, to accommodate growing black school population, and to provide space forM-to-Ms. This in turn will further integrate these schools from which the M-to-M students come.
The evidence therefore indicates that defendants have considered Redan II's effect upon desegregation, and have included integration as an objective in their planning. Redan II will have an overall positive desegregative effect. It will not reestablish or perpetuate a dual school system. Therefore, the court moves on to the next step : the analysis of the parties' alternatives to the overcrowding to find the solution that best resolves the problem, taking into account valid educational concerns and practicalities. 755 F.2d at 1427. To perform this study, the court first will discuss plaintiffs' plans to ascertain whether they are

191
segregative or desegregative. Next, the court will compare the three plans to determine which will best rectify the overcrowding situation with desegregative effect.
Plaintiffs' first option would make Redan II an 8th grade school. Eighth graders from Redan, Towers, and Southwest DeKalb would transfer into the new school. Two hundred fifty Redan High students from the upper grades would go to Southwest DeKalb High, and 175 would attend Avondale High. The plan contemplates redrawing of attendance zone lines; plaintiffs, however, did not present the exact location of the new lines. This al"'( ternative would increase racial balance at the new school, relieve overcrowding at Towers and Redan, provide more racial balance at Southwest DeKalb, and retain the 9th12th grade curriculum.2
A close look at the first option indicates that it probably would not achieve its desegregative purpose. Based on 1984 figures, plaintiffs estimated that 55% of the new school's population would be black. Defendants used the 1984 and 1985 enrollment figures to determine that the

2 Plaintiffs submitted the following list of schools impacted under

the 8th grade plan:

8th Grade

Before

Plan

Towers High School

66% Black 64 over capacity

57% Black 76 under capacity

Southwest DeKalb High School 93% Black 100 under capacity

74% Black at capacity

Avondale High School

67% Black 168 under capacity

61% Black at capacity

Redan High School

21% Black 841 over capacity

21% Black at capacity

The court notes that plaintiffs have referred to Redan II as the Miller Grove School. For ease of reference, the court will continue to use the term Redan II.

192
percentage of black students in Redan II would be 56 o/o.
Thus Redan II, located in an area which has an indige... nous growing black student population and is approaching the "ideal" racial mix, would be transformed into a majority black school. This plan would lower the black population in Towers and Southwest DeKalb, but these schools admittedly would remain majority black.
Another problem with plaintiffs' 8th grade option is the line Jedrawing. As stated earlier, plaintiffs did not illustrate their new attendance zones. The residential areas within Redan that are contiguous to Towers and Southwest DeKalb tend to be black. Redrawing Towers and Southwest DeKalb lines to include contiguous portions of Redan thus would add more blacks to the former zones. Additionally, Redan would become more white. Even a new district created from contiguous portions of the three zones would be majority black. This result surely does not further integration.
The only way to include white population centers within Towers and Southwest DeKalb would be to create non-contiguous districts. Such blatant gerrymandering would result in children having to travel past their old schools a greater distance to their new schools. Additionally, it would ruin the Redan area's natural desegregation process.
Another difficulty with plaintiffs' first option is the inclusion of Avondale for relief of Redan's overcrowding. As the court stated in its oral findings at trial, whether Avandole and Redan are contiguous is questionable. (Tr, Vol. V, at 825) . The two zones touch each other only at one point. Ohildren transferred from Avondale to Redan, and vice versa, would have to travel through the Towers district. As the court previously found, such a situation is untenable.
An additional concern is which high schools the Redan II students will attend. Plaintiffs did not specify whether

193
students would return to their original areas after 8th grade. If so, little will have been accomplished by plaintiffs' option except disruption.
The more likely plan would have these students attending Redan High School, as part of the new attendance zone. If this occurs, Redan High would become a majority black school. Plaintiffs' estimates and predictions do not take into account the growing number of indigenous blacks in the Redan area. Their plan would disrupt this natural desegregative tendency, a trend which experts agree is a good way to integrate. (See, e.g., test. of Dr. Stolee, Tr, vol. II, at 190-91; test. of Dr. Armor, Tr, vol. III, at 388.)
Plaintiffs' 8th grade plan also would shut off M-to-M transfers into Redan. The 8th grade school would be majority black, thus preventing black students from transferring in. The high school would be majority white, at least a:.t first, but at capacity. Dr. Armor estimated that numerous blacks would want to transfer into Redan, based upon the experience of other DeKalb schools.
Plaintiffs' estimates also do not provide for the phenomenon of "white flight." At trial, Dr. Armor described white flight in the school desegregation context as the failure of white students to attend the school to which they have been assigned manditorily. (Tr, vol. III, at 35657). Referring to plaintiffs' original plans, Dr. Armor testified that from 25 to 50% of the white students whom the district transferred probably would not attend their new school. (Id. at 441-44). These figures were based upon studies conducted by Dr. Armor in other cities.
No estimates are available for plaintiffs' present alternatives, which were formulated after trial. Nonetheless, plaintiffs should have, hut apparently did not, take into account the possibility of white flight. If it occurred at the rates predicted by Dr. Armor for the other plans, the desegregation value of plaintiffs' current op-

194
tions would be diminished. In summary, plaintiffs' 8th grade option may lead to greater segregation, and would block the natural integrated growth of the Redan area.8
Plaintiffs' second option is a 7th and 8th grade school including 7th grade students in the elementary schools of the following attendance zones: Rainbow, Fairington, Canby Lane, Woodridge, Redan (portion), and Mainstreet. Eighth grade students at Towers, Southwest DeKalb, Redan, and Lithonia High Schools also would attend Redan II. Additional, 175 Redan upper grade high school students would transfer into Avondale High and 133 would attend Southwest DeKalb High. This option would result in an integrated new school, relief from overcrowding at Rainbow, Mainstreet, and Redan Elementary Schools, and Towers, Lithonia, and Redan High Schools. Additionally, a special incentive grant from the State might be available.4

3 The court is uncertain how Redan High School would remain 21% black if Redan II is 56% black and would send its students to Redan High. Additionally, 425 children will go from Redan High to Southwest DeKalb and Avondale Highs. These children must be white to lower the latter schools' black population. Subtracting these students from Redan's white popula.tion will increase the proportion of blacks to whites, assuming that the number of black students remains constant. Therefore, plaintiffs' assertion that Redan High will remain 21:% black after its plans are put into effect can be correct only if a proportionate number of black children leave Redan High.

4 Plaintiffs presented the following list conce,rning the effect of

their 7th-8th grade plan:

7-8th Grade

Before

Plan

Redan High School

21% Black 841 over capacity

21% Black at capacity

Southwest DeKalb High School 93% Black

87% Black

100 under capacity at capacity

Avondale High School

67% Black 168 under capacity

61% Black at capacity
[Continued]

195
Plaintiffs' second suggestion creates problems similar to their first option. The 1984 enrollment figures indicate that blacks would amount to 45% of Redan II's students. In 1985, black enrollment would rise to 47%. These figures would exceed the ideal county-wide balance. The projected continuing indigenous black growth could lead to a majority black school in a few yearS>. This plan also would lower black proportions in surrounding areas. Yet, these other schools' basic racial composition would not be altered; they would remain majority black.
Plaintiffs attached a map which showed the proposed zone for 7th graders. The court is not certain whether the map indicates from where the 8th graders would come, or which Redan High students will transfer into other areas. The latter students apparently would have to be white to reduce Avondale's and Southwest DeKalb's

4 [Continued]

Towers High School

66% Black 64 over capacity

63% Black 24 over capacity

Lithonia High School Rainbow Elementary School

37% Black 231 over capacity
97% Black 137 over capacity

37% Black 190 over capacity

Fairington Elementary School 65,% Black 81 under capacity

Canby Lane Elementary School 93% Black 62 under capacity

Woodridge Elementary School

17% Black at capacity

Redan Elementary School

15% Black 329 ove'r capacity

Mainstreet Elementary School

18% Black 158 over capacity

Plaintiffs have not yet supplemented their elementary school figures with 1985 enrollment data. The' court therefore cannot determine how plaintiffs' plan will affect the racial composition of these schools.

196
black percentages. Thus they would have to come from areas of Redan which are not contiguous to the latter zones. As stated in the discussion of the 8th grade plan~ such gerrymandering would result in children travelling past their old schools. As with the 8th grade plan, the inclusion of Avondale High also poses the problem of non-contiguous zone formation.
An additional drawback of the 7th and 8th grade plan is its inclusion of Lithonia, which all parties have conceded is a stable naturally integrated community. Its proportions of black students approximates the countywide figure of 40% To include Lithonia would upset its racial balance.
As with plaintiff's first option, white flight could diminish severely the second plan's supposed integrative effect. Additionally, Redan II would be a majority white school, but just barely. Although it could accommodate M-to-M transfers, the areas's continued black growth indicates that soon Redan II will be a majority black school.5 The 7th-8th grade plan would upset the Redan area's naturally occurring integration.
Plaintiffs' main argument is not so much that defendants' option is segregative, but that defendants should do more. In other words, defendants should use Redan's overcrowding to decrease black population at numerous other schools, some of which are contiguous. As the Eleventh Circuit noted, the court need not pick the most desegregative option available. 755 F.2d at 1427. After reviewing each alternative, however, the court concludes that defendants' plan provides more long term desegregative effect. Redan is becoming a naturally integrated community. The 1985 enrollment figures bear out Dr. Armor's predictions on this matter. Plaintiffs' options would disrupt that trend" In the words of Dr. Stolee, "if
5 Which hig-h school Redan II students will attend also is a question under this option. For an analysis of this subject, as well as of white flight and M-to-M, see the discussion supra at 10-13.

197
it ain't broke, don't fix it." (Tr. vol. II, at 190). (discussing Lithonia).
Plaintiffs' plans would increase the black populations of Redan II and the high school. These schools, along with Towers, Southwest DeKalb, and Avondale, would be majority black. The plans are not defined clearly. 'They do not account for possible white flight. M-to-M transfers would be lessened or eliminated.
In return for the problems caused by plaintiffs' plans, some surrounding schools will have a lower percentage of black students. This is a positive desegregative result. It is not enough, however, to override the negative iT?plications of transforming Redan from a naturally mtegrating area into a majority black resegregated zon.e. This especially is true because the other schools will remain majority black.
Plaintiffs also protest that defendants' plan will place the burden of integration upon black students by way of the M-to-M program. A plan which depends upon volutary desegregation has the advantages of allowing individuals to make their own choices and not to feel as though important decisions have been taken out of their hands and forced upon them. Obviously, if voluntary desegregation does not or cannot accomplish its goals, a mandatory plan will be necessary. In the instant case, defendants' plan, which is voluntary, accomplishes its desegregative objectives.
First, the court has determined on more than one occasion that recent racial school proportions are due to housing patterns rather than to a dual system. S'econd, voluntary desegregation by way of M-to-M transfers has worked well. Dr. Armor testified at trial that M-to-M transfers have increased the number of blacks at majority white schools in the county. He believed that the same pattern would be repeated in Redan. Defendants estimated that M-to-M transfers could increase Redan II's black population to as much as 36%. M-to-M trans-

198
fers also could provide space at the majority black schools for white M-to-M transferees.
Additionally, white flight may occur in a mandatory plan. Of course, the possibility of white flight is not enough to eliminate a desegregation plan. It should be considered, however, when comparing various alternatives. Plaintiffs did not take potential white flight into account. Thus, their calculations of the black percentages at Towers, Southwest DeKalb, and Avondale could be too low. Even without white flight, these schools still would be majority black under plaintiffs' plans. Finally, the Redan schools could be converted into majority black schools. This would ruin Redan's progress toward becoming a stable, naturally integrating community.
These factors demonstrate that defendants' plan of voluntary integration has a good chance of success. Conversely, the negative effects of plaintiffs' mandatory desegregation plans indicate that their alternatives will not promote integration as much as plaintiffs allege.
The defendants have acted in good faith to institute a solution to Redan's overcrowding that will increase integration. Therefore, plaintiffs' plan are not necessary: their integrative effect is no greater than, and actually is less than, that of defendants' alternative. Additionally, plaintiffs' options raise more valid educational concerns. First, they are more disruptive, involving the transfer of students who may not wish to attend another school. Second, defendants reject as educationally unsound the idea of placing 7th graders with students, in the highell' grades. A third factor is that defendants believe that separation of eighth and ninth graders from the upper classes would be beneficial. Although the court does not presume to set educational policy for the schools, defendants' educational concerns appear valid and reasonable.6
6 Plaintiffs mention that the 7th-8th grade nption possibly could garner state funds, but did not discuss this idea further. Defendants did not respnnd. Additional state funding could be a positive

199
In summary, the court has analyzed the alternatives and has balanced them in light of their segregative and desegregative effects and valid educational concerns. The court finds that the long term effects of defendants' plan will be to increase desegregation, and that plaintiffs' plans will increase segregation in the long run. An important factor in this determination is Redan's apparent change into a more integrated community. Plaintiffs' plan would disrupt this transformation by making Redan High and Redan II into majority black schools. Finally, defendants have legitimate educational reasons for implementing their plan. On balance, defendants' alterna-, tive will foster integration and accommodate educational needs.
In the instant case, defendants have considered integration as an objective. As the court noted in its. oral findings at trial, defendants should continue to take desegregation into account in its future school policy decisions. In this way, defendants can fullfill their mandate to solve school problems in a way that furthers desegregation. 755 F.2d at 1427.
The court denies plaintiff's request to enjoin implementation of defendants' plan.
IT IS SO ORDERED this 31st day of October, 1985.
js/ William C. O'Kelley
c. WILLIAM O'KELLEY
United States District Judge
educational factor. Without more information, however, the court cannot determine the likelihood of such funding, or what its effect would be.
Additionally, plaintiffs noted that their plans would leave 9th12th grade curricula intact. They did nnt point out why this would be bene.ficial. Assuming that it is, defendants have stated that separating 9th graders from nlder students also would have positive effects.

 
 1

County, the actions of the defendants in making these changes do not justify

02

the ordering of a remedy which would go beyond the alteration of school zone

03

[sic attendance area] lines. The court does wish to ensure, however, that any

04

future zone changes [sic attendance lines] as well as the purchase of any new

05

school sites are made so as to have the effect of furthering as opposed to

06

hindering desegregation. Accordingly, a biracial committee will be

07

established which will, as part of its functions, approve such zone changes

08

and school site purchases. Singleton v. Jackson Municipal Separate School

09

District, supra, 426 F.2d at 1370; Ellis v. Board of Public Instruction, 423

10

F.2d 203, 207, n.4 (5th Cir. 1970).

11

12

· 0 RDE R

13

For the foregoing reasons, the court hereby ORDERS that:

(1) The M-to-M program be modified so that any student may transfer

15

from a school where his race is in the majority to any other school within the

16

county in which his race is in the minority. Space must be made available in

17

the receiving schools for transferees who shall be given priority for space

18

over other new students, but in no instance shall a transferee displace a

19

student previously enrolled in the receiving school.

20

(2) Such M-to-M transfers shall be effected by as simple an

21

administrative procedure as possible. The school system will provide M-to-M

22

transfer form~ at the student's neighborhood school. The student's parent or

23

guardian must, under usual circumstances, complete the form on or before May 1

24

of the school year preceding the school year for which the student desires to

25

- 27 -

...,.....,..,..,..""""""'Amended

26

Original

01

participate in the M-to-M program. The school system shall provide the

02

student with a copy of the form which shall be presented to the receiving

03

school by the student on the annual registration day.

04

(3) The school system shall publicize the M-to-M transfer procedure

05

by paid advertisements in local newspapers; news releases to all media;

06

brochures available at each school; and notices placed in school newsletters

07

and newspapers no later than March 15 of each year. Such publicity shall be

08

followed by notices sent to each parent or guardian no later than March 31 of

09

each year.

10

(4) Any student may exercise a majority-to-minority transfer once

11

during the student's elementary career and once during the secondary school

12

career. Once a transfer is effected, the transferee need not reapply for the

13

transfer each year. If the student's race becomes a majority in the receiving

14

school, he may (a) remain at the receiving school; (b) return to his

15

neighborhood school; or (c) transfer to another school in which his race does

16

not comprise more than a majority of the student body.

17

(5) Transportation shall be provided at the expense of the school

18

system to any M-to-M student who so requests and who lives more than one mile

19

from the receiving school. Defendants may seek modification of this provision

20

of the order if, based on the number of students electing to exercise M-to-M

21

transfers and the receiving schools chosen, a workable plan of transportation

22

proves impossible.

23

(6) These changes in the M-tq-~ program shall be implemented for

24

transfers beginning with the 1977-78 school term. Students wishing to

25

- 28 -

Amended

26

Original

01

participate in the program for the remainder of the 1976-77 school term, may

02

transfer to a school which qualifies under the provisions of this order and in

03

which there is space available. Transferees must provide their own

04

transportation for the balance of the 1976-77 school term.

OS

Distribution of Facultv

06

(7) The ratio of black to white teachers in each school must be

07

substantially similar to the system-wide (sic systemwide] racial ratio.

08

Defendants are required to reassign teachers with all deliberate speed so

09

that the racial distribution of faculty in all schools approximates the

10

distribution of faculty in the entire school system.

11

Biracial Committee

12

(8) A biracial committee shall be established which shall oversee

13

the operation of the M-to-M program as modified by this order. The

14

committee's approval must also be secured on any proposed school zone (sic

15

attendance areas] changes or school site purchases. The committee is to be

16

constituted by this court from names submitted by parties to this suit. The

17

number of members will be determined by this court and shall consist of no

18

more than 20 nor less than ten members. The membership shall be equally

19

divided between whites and blacks and the chairmanship shall alternate

20

annually between a white and a black chairman. The committee shall make

21

annual reports to the court concerning the functioning of the M-to-M program

22

and any other action taken by the committee on proposed attendance zone

23

changes (sic attendance lines] or school purchase sites.

24

- 29 -

....._.""'"'==.tunended

25

Original

.. _ ... _ ~ 1 .,..._ _

•

~ ""''-' L... ....- '- ....J;: ~ c ;..- ...-1.. \ r\) c' ;

\ :u.Il:u. v C .L k. I i 0 ) .J l

01

02

IT IS SO ORDERED.

03

04

- - - - - - This

3rd day of November, 1976.

05

06

07

08

(signed) Newell Edenfield

09

NEWELL EDENFIELD

10

United States District Judge

11

12

- 30 -

=-----~=Amended

13

Original

 
 -, ...

' '
I FilED IN CLERK'S OFFICE

Apaasllptpeharegceposappwieeesrraecnocdphiaeersce.keads

against complete

;£- UNITED STATES DISTRICT COURT M~Y 0:,J1978
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION BEN CARTER, CLERK
By , .
~ DEPUTY CLERK

WILLIE EUGENE PITTS, et al.

)

)

)

vs.

)

)

)

JIM CHERRY, et al.

)

CIVIL ACTION NO. 119 4 6

0 RDE R
This school desegregation case is now before the court on plaintiffs' motion for supplemental relief and defendants' motion to allow a change of school attendance zones.
By order of June 12, 1969, the court directed that "the County Board ... in expanding existing facilities ... do so with the objective of eradicating segregation and perpetuating desegregation." Plaintiffs contend that defendants are in violation of this order in that on February 13, 1978, they voted to construct an additional eight classrooms at Flat Shoals Elementary School, a predominantly black school. Plaintiffs argue that such construcl
I tion is designed to contain the growing population of black stu-
dents in the Flat Shoals district in that district and that such containment is contrary to the instructions of this court. Plaintiffs also note that near to Flat Shoals are three predominantly white schools which have additional space. In a letter to the court, defendants contend that the construction at Flat Shoals is necessitated by the expansion of the kindergarten and other programs rather than by any attempt to contain the black school population in one area.
Plaintiffs further assert that defendants' decision to close Heritage Elementary School, a school in the northern part of the county with a successful majority-to-minority (M-to-M) program,

P·034·C

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FPI· MAR-10·6 · 77

--
is improper. Defendants, in their motion to allow a change of attendance zones, justify the closing by noting the drastically declining school population in that district. They also explain that the facility is to be converted into a special education center. Plaintiffs argue that other schools in the northern part of the county also have declining enrollments and do not have successful M-to-M programs and that one of these schools should be closed instead of Heritage.
Finally, plaintiffs request that the authority of the Biraci Committee be clarified. To assist in this endeavor the Committee has submitted certain proposed guidelines for the court's consideration.*
In order that these issues may be more fully developed, a hearing on these matters will be held on May 15, 1978, at 10:00 o'clock, A.M., in Room 318 of the United States Courthouse, Atlant& Georgia.
So ordered, this -----~--~~--day of May, 1978.
NEWELLEI) IELD
United States District Judge

*In June, 1977, the court directed plaintiffs and defendants to submit proposed guidelines and both had done so by the end of August. The court, however, has never formally resolved this issue.

P•034-C

-2-
FPl-MAR-10·6·77

 
 ,
..

Apaasllptpeharegceposappwieeesrraecnocdphiaeersce.keads

against complete

FILED IN CLERK'S OFFICE

UNITED STATES DISTRICT COURT

MAY?. ,'3 1978

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

~EN H. CARTER, CLERK

~ y

DEPUTY CLERf\

WILLIE EUGENE PITTS, et al.

)

)

)

vs.

)

)

)

JH1 CHERRY, et al.

)

CIVIL ACTION NO. 1194 6

0 RDE R
This school desegregation action came before the court on May 15, 1978 for a hearing on four issues: (1) the closing of Heritage Elementary School, (2) the construction of eight additional classrooms at Flat Shoals Elementary School, (3) the continuing conflict between DeKalb County school officials and the Biracial Committee, and (4) intervenor Johnson's motion to cite defendants with contempt for failing to provide transportation pursuant to the M-to-M program.
1. Heritage is an eighteen-room elementary school, located in the northern section of DeKalb County. It has a capacity of
468 students~/ but for the past few years has had a declining
student enrollment. This school year (1977-78) Heritage has a
I
population of 269 students, not including kindergarten and special' education students. Projected enrollment for the 1978-79 school year is 247.
The controversy before the court has resulted from defendants'j
I I
plan to close this school as a regular elementary school and con-
I vert it to a special education center for elementary-age students
residing in the northern part of the county. The county currentl~ operates Scottdale Center as a special education high school.

P·034-C

!/ The school system determines elementary school capacity,
absent any special programs, on the basis of twenty-six students per classroom.
-1-
FP! ·MAR-IO· 6 · 7 7

i'
·I I

•

This facility is old and unsatisfactory, and defendants plan to transfer the Scottdale program to Margaret Harris Center, which is now serving as a special education center for elementary-age children in the northern portion of the county. Heritage has been chosen as the recipient school for the existing Margaret Harris program.
2/ Plaintiffs and the Biracial Committee- oppose the decision to close Heritage, alleging that it will adversely affect a suecessful majority-to-minority (H-to-M) transfer program currently in operatl.on there.3- / Nineteen students are presently enrolled in that program, and Heritage is the only school in the northern part of the county with substantial M-to-M participation. A spokesperson for the parents of the M-to-M students indicated tha she had made an extensive effort to recruit black students, that black parents had visited a number of schools before selecting Heritage, that Heritage was selected primarily for its size and special reading, math and tutoring programs, and that the Heritag community had been receptive to the M-to-~1 students. She also expressed concern that if Heritage is closed, these M-to-M students will again have to adapt to a new school and that for this reason some might not continue to participate in the program. Plaintiffs and the Biracial Committee assert that other elementary schools in the northern portion of the county, which do not have M-to-M programs, are operating significantly below capacity and would be appropriate choices as the recipient school for the
~/ Pursuant to the court's November 3, 1976 order, defen-
dants presented the proposed zone changes, which would result from the conversion of Heritage, to the Biracial Committee on April 3, 1978. The Committee rejected the changes stating that Heritage's current use should not be altered.
~ Plaintiffs and the Biracial Committee oppose only the
choice of Heritage as the recipient school for the special education program. They do not oppose, and in fact support, the decision to close the Scottdale Center.

P·034·C

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FPl· MAR-IO· 6-77

special education center. They therefore contend that closing Heritage, which might otherwise be permissible, has an impermissible effect upon the M-to-M program.
Defendants contend that the conversion of Heritage will not have a racial impact. They note that the M-to-M students will be able to attend either Oakgrove or Hawthorne, the schools to which the Heritage students will be transferred, or any other schools they choose under the M-to-M program. They also note that the reading and math facilities are the same at all the elementary schools and that although tutoring services provided by the community may not already exist at Oakgrove or Hawthorne, such assistance is always encouraged.
Defendants also explain that although certain other elementary schools in that portion of the county are severely under capacity, after examination of all factors, Heritage remains the only sensible choice for conversion to a special education facility. Heritage has eighteen classrooms and defendants have determined that approximately that number will be required in the new center. All of the other under-capacity schools which were considered have at least twenty-three rooms. Defendants contend that to convert any of these larger schools would be an uneconomic use of taxpayer money. Defendants also note that some of the other schools which appear to be underutilized actually are housing special programs which require more space per child than the county usually allots. Further, at least two of the schools which are currently under capacity appear to be destined for major changes in enrollment due to their proximity to the ~ffiRTA line and expected new housing developments or in the event of a transition from "singles" apartments to family units. Finally, defendants argue that Heritage is in an ideal location for a special education center, which relies upon volunteer services, since it is near other elementary schools and a high school and
-3-
FPI· MAR-1 Q. 6 · 7 7

•
is located in the midst of a single-family dwelling residential community.
On the basis of the foregoing testimony, the court concludes that closing Heritage Elementary School to regular students will not have an impermissible effect on the M-to-M program, and, thus, on the process of desegregation of the county school system. The choice of Heritage over other under-capacity schools as the recipient school for the special education center, in the opinion of the court; is justified by its size and location and by the fact that to close any of the other schools would not be economical in terms of room usage or wise in view of possible future increases in student enrollment. Since the M-to-M students now attending Heritage will be able to transf~r to Oak Grove or Hawthorne, along with their white classmates, and will have available to them essentially the same learning tools as they had at Heritage, the court concludes that the disruption in the program is not of legal significance. Accordingly, defendants' motion to change attendance zones is hereby GRANTED.
2. Also before the court are plaintiffs' and the Biracial Committee's contentions that the proposed construction of eight additional classrooms at the predominantly black (96%) Flat Shoal Elementary School will violate the court's June 12, 1969 order. That order states, "To the extent consistent with the proper oper ation of the system, the county board will, in locating and desig nating new schools, in expanding existing facilities, and in consolidating schools, do so with the objective of eradicating segre gation and perpetuating desegregation." Plaintiffs argue that the Flat Shoals expansion is designed to contain the growing population of black students residing in the Flat Shoals district within that school zone and that such containment is contrary to the instructions of this court. Plaintiffs also allege that addi tional rooms are unnecessary at Flat Shoals inasmuch as three predominantly white schools located nearby have additional space.
-4-
FPI- MAR-l 0· 6-7 7

Flat Shoals, which is located in the southern portion of DeKalb County, currently has twenty-seven regular classrooms and two mobile unit classrooms. Its enrollment is approximately 710 children, not including those enrolled in the special education and kindergarten programs.!/ Defendants have testified that the eight-room addition, which will be in the form of two pods containing four classrooms each, is not intended to confine black students to a predominantly black school but, rather, is to provide the existing student body with a better environment for
learning·.~ Assistant Superintendent Joseph Renfroe testified
for defendants as to the intended uses of the additional rooms. Two of the classrooms will replace the two mobile units presently operating at Flat Shoals. Another of the new rooms will be used for the kindergarten program which is being greatly expanded as the result of an increase in state funding. Three of the rooms will be used in connection with the county's special education program, another will be used as a reading and math lab and the final one will serve as a "multi-purpose" room. Defendants also note that the rooms will be fully air-conditioned and will have modern equipment and furnishings.
While the court recognizes the concerns expressed by plaintiffs and the Biracial Committee on this matter, it cannot conelude, on this set of facts, that defendants' plan to construct these additional classrooms at Flat Shoals violates the June 12, 1969 order. However, to insure that this expansion never serves to contain the black student population in the Flat Shoals school, the court DIRECTS that the additional rooms be used only for those
!/Defendants were before this court in September, 1977, as a result of a drastic and unexpected increase in the student enrollment of Flat Shoals which created severe overcrowding at that facility. At that time the court approved the installation of two portable classrooms and a change of attendance zones which zoned approximately 130 students out of the Flat Shoals district.
~/ Defendants also make much of the fact that these eight
classrooms will not be- used to bring any new students into Flat Shoals who do not now reside in that school zone. Clearly the court would not permit such a change.
-5-
FPI-MAR-10·6-77

purposes that were stated to the court. Since the court is aware of the difficulties in determining at this point the precise number of special education classrooms which will be needed at Flat Shoals, it will allow defendants a certain a~ount of leeway in the allocation of the use of rooms as between special education classes and special learning laboratories. In no instance, however, are any of the new rooms to be used to house, or to permit
6/
the housing of, additional sections of any grade level.- The court will not condone additions to Flat Shoals which are designed, or will serve, to keep the growing black school population within the existing attendance zones. In the event the Flat Shoals enrollment continues to climb, and all indications are tha it will, the court recommends that defendants seriously consider alternatives to further construction, such as alterations in attendance zones, and, possibly, some form of busing, in order to remedy the overcrowding which is bound to occur and to promote desegregation in the county schools. In considering additions to other predominantly black schools in the county, defendants are advised to keep this admonition in mind.
3. The next issue to be addressed is the Biracial Committee's request that the court establish certain guidelines delineating the authority of the Committee. Elaine Davis, testifying on behalf of the Committee, cited as points of contention between the parties the fact that defendants have failed to request the Committee's approval of their actions, failed to follow its (the Committee's) recommendations, and continued to refuse to provide it with pertinent information.
As the court explained at the hearing on this matter, the Biracial Committee has no authority to order defendants to take or to forbid them from pursuing any specific course of action.
~/ The three rooms being built to replace the mobile units
and to house the kindergarten classes are, of course, excepted from this restriction.
-6-
FPl-MAR-10·6·77

•

F~rther, the court has no power to grant the Committee such au-
thority. On the other hand, the Biracial Committee has complete
authority to inquire into all matters involving the DeKalb County
school system in which there are racial overtones. The Committee
should investigate any problems it pinpoints, make recommenda-
tions to defendants, and seek relief in the court if it is not
satisfied with defendants' response. The court INSTRUCTS defen-
dants to furnish the·Committee with whatever information it re7/
quests in connection with matters having racial overtones,-- and,
to the extent that defendants assert that the order creating the
Biracial Committee gave it authority to oversee only certain race-
related matters, defendants are to consider that order modified.
Finally, the parties are cautioned that the court does not want
to be plagued with this problem any further.
4. The final issue before the court is intervenor's motion
to cite defendants with contempt for their failure to provide
transportation for her child pursuant to the M-to-M program. On
November 3, 1976, this court entered an order which provided:
(1) The H-to-M program [is to] be modified so that any student may transfer from a school where his race is in the majority to any other school within the county in which his race is in the minority. Space must be made available in the receiving schools for transferees who shall be given priority for space over other new students .... (5) Transportation shall be provided at the expense of the school system to any M-to-M student who so requests and who lives more than one mile from the receiving school. (6) These changes in the M-to-M program shall be implemented for transfers beginning in the 1977-78 school term. Students wishing to participate in the program for the remainder of the '76-77 school terM, may transfer to a school which qualifies under the provisions of this order and in which there is space available. Transferees must provide their own transportation for the balance of the 1976-77 school term.
Intervenor is a white resident and citizen of DeKalb County and
the parent of a minor child presently enrolled as an M-to-M stu-

P·034-C

21 Defendants are advised that the court will frown upon
standard refusals to provide information on the ground that the question has no racial overtones.
-7-
FPl-MAR-10-6-77

dent at Meadowview Elementary School, a predominantly black school in the county school system. Because she lives more than one mile from Meadowview, intervenor has requested that defendants provide her child with transportation to school in accordance with the court's order.
Defendants refuse to provide such transportation, however, andcontend that the issue before the court does not relate to their refusal to provide transportation under the M-to-~1 program but "to the question of whether Intervenor can use the M-to-M program as a guise for obtaining transportation not otherwise available ... under the special education program of the DeKalb County School System." Defendants assert that the child in question is a student in the General Learning Disability-Educable Program ("GLD-E") operated by DeKalb County, that she was enrolled in the GLD-E class at Flat Shoals Elementary School, and that when that class was transferred to Meadowview 1 she chose to remain with it 1 although transportation to Meadowview was not available for her under the special education program. After intervenor submitted applications to defendants for transportation to Meadowview under the special education and M-to-M programs, defendants advised her that transportation was not available to Meadowview but offered to transport the child to any of three other schools in the system. Two of these schools were predominantly black, which was one of the main reasons advanced by intervenor for enrolling her child at Meadowview under the M-to-M program. Intervenor has rejected this offer and continues to enroll her child in the Meadowview program. Defendants, thereforE, argue that they have not violated the court's November 3 1 1976 order regarding mandatory transportation for M-to-M students.
The court disagrees. The language of the order is quite clear--"Transportation shall be provided at the expense of the
-8-
FP!. MAR-1 0-6-7 7

school system to any H-to-M student who so requests and who lives

more than one mile from the receiving school." Intervenor's child

is an H-to-H student, enrolled at predominantly black Meadowview.

She lives more than one mile from the school and she has reques-

ted that defendants provide her with transportation. Although

this child may not have been one of the intended beneficiaries

of that provision, she is clearly within the letter of the law,

.

. . 8/

and, until such time ·as the order 1s mod1f1ed,- defendants must

comply with its terms. In view of the particular facts before

it, however, the court DIRECTS only that defendants compensate

intervenor for the costs of her child's transportation after May

15, 1978. Intervenor's requests, presented at the hearing on

this subject, for compensation for her past transportation char-

ges and for actual transportation for her child are DENIED at

this time. The court INSTRUCTS the parties to discuss this sit-

uation further to see if some agreement can be reached and to

return to the court with this problem only if they are unable

to resolve it after reasonable negotiations.

In sum, plaintiff's motion for supplemental relief is DENIED, and defendant's motion to allow a change of attendance zones is GRANTED. Intervenor's motion to hold defendants in contempt is DENIED, but defendants are DIRECTED to compensate intervenor for the costs of transporting her child to Meadowview after May 15, 1978.

So ORDERED, this

day of May, 1978.

NEWELL E · JFIELD United States District Judge
~/The court's November 3, 1976 order provided: "Defendants
may seek modification of [the provision requiring that they provide transportation] if, based on the number of students electing to exercise M-to-M transfers and the receiving schools chosen, a workable plan of transportation proves impossible. n Defendants have not sought any modification of the transportation provision, however, and the court declines to alter or amend that order on its own motion.
-9-
FP!. MAR-l 0-6.7 7

 
 .,.__..,. II Apalalsppteahrgece.. posapwpieees-rrlelJa)concpdhieeacsrke.eadsacgoaminpsltete
i

fiLED IN CLERK'S omtt
.U.S.D.C. • Atltnt•
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

WILLIE EUGENE PITTS, et al. VERSUS ROBERT FREEMAN, et al.

CIVIL NO. 11946

0 RDER

The DeKalb County School System (DCSS) was historically segregated by law. "Dual" school systems were maintained in the County, one for black students and another for white students. In 1954, the Supreme Court 1 s landmark decision in
Brown v. Board of Education, 347 u.s. 483 (1954), signaled the
end of dual systems with its pronouncement that "in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."
at ,495. The Supreme court's decision imposed upon all school systems, which were maintaining dual systems at that time, the duty to dismantle the dual system, avoid the reestablishment of the dual system, eliminate the vestiges of the dual system and replace the dual system with a system in which all students, regardless of their race, are provided the same educational opportunities.
In 1968, the plaintiffs, certain black school children in Dekalb County and their parents, filed this class action on behalf of all black school children in Dekalb County claiming that the defendants had operated a racially segregated school

A :/82)

system in violation of the United States Constitution. After this action was filed, the DCSS voluntarily undertook to work with the Department of Health, Education and Welfare (HEW), to develop a final and terminal plan of desegregation. In June, 1969, the court entered a consent order which approved the proposed plan and enjoined the defendants from discriminating on the basis of race in operating the DCSS. The court maintained jurisdiction over the case to implement its order. In the two decades that this case has been pending, the court has rarely been asked to intervene.l Both parties have worked together in

1 There was no significant action in this case until

September, 1975. At that time, plaintiffs sought to have the

DCSS declared out of compliance with the 1969 order. Plaintiffs

challenged the M-to-M program, assignment of staff, and changes

in attendance zones. In 1976, the court entered an order

requiring the DCSS to modify the M-to-M program to provide free

transportation, to reassign faculty and staff to approximate the

system-wide percentages, and created a Bi-racial Committee to

oversee future boundary line changes, the M-to-M program, etc.

In 1977, the DCSS requested the court to approve a

boundary line change for Flat Shoals Elementary School. After a

hearing, the court held that the school's plan met constitution-

al standards and approved it.

In 1978, the DCSS filed a motion asking that kinder-

garten and special education programs be excluded from the M-to-

M program. The court denied the motion.

In 1979, the DCSS, at the Bi-racial Committee's

request, moved the court to amend its 1976 order to modify the

M-to-M program, such that the only schools that would be

eligible to receive transferring blacks would be those schools

whose black populations did not exceed the system-wide per-

centage of black students. The Bi-racial Committee had sug-

gested that such a limitation might help stop white flight from

transitional schools and neighborhoods.

The court denied

modification of the order, finding that the transition of the

southern schools was caused by the changing complexion of the

neighborhoods, rather than the effect of the M-to-M program.

In 1983, the plaintiffs sought supplemental relief.

Plaintiffs alleged that the DCSS had conspired to limit M-to-M

transfers to Lakeside High School, that Knollwood Elementary

School had been improperly expanded, and that Redan High School

2

72A

the best interest of the school system.
On January 16, 1986, the defendants filed a motion for
final dismissal. The defendants seek a declaration that the
ocss has achieved unitary status. When a federal court main-
tains jurisdiction over a school desegregation case, the school
system must show that it is unitary before it can be dismissed
from court supervision. Green v. County School Board, 391 u.s.
430, 439 (1968).
The meaning of unitary status has not been clearly
defined by the Supreme Court. As there is no binding precedent
in this circuit which articulates a precise definition for the term2 , this court will use the definition espoused by Judge
was also improperly increased. Plaintiffs later dropped their claim as it concerned Knollwood Elementary School. Separate hearings were held on the Lakeside and Redan issues. With regard to the Lakeside High School issue, the court ruled against the defendants. The court held for the defendants on the Redan issue. Although the court's first order on the Redan issue was reversed by the Eleventh Circuit, the order issued by this court following remand also held for the defendants. The parties did not appeal that order.
2 In Georgia State Conference of Branches of the NAACP v. Georgia, 775 F.2d 1403, 1413 n. 12 (11th Cir. 1985), the court noted " [ s] ome confusion has been generated by the failure to adequately distinguish the definition of a "unitary" school system from that of a school district which has achieved "unitary status .... [A] unitary school system is one which has not operated segregated schools as proscribed by cases such as Swann and Green for a period of several years. A school system which has achieved unitary status is one that is not only unitary but has eliminated the vestiges of its prior discrimination and been adjudicated as such through the proper judicial procedures. Unfortunately, the terminology used to refer to these concepts is not universal."
3
•2A
.... U'I""'l\

Rogers in Brown v. Board of Education (Brown III), 671 F. Supp.

1290, 1292-93 (D. Kan. 1987), to determine whether the defen-

dants have met their burden of proof. The following principles

for determining unitary status were set forth in that case.

First, "the nature of the desegregation remedy is to be deter-

mined by the nature and scope of the constitutional violation.
Milliken v. Bradley, 433 u.s. 267, 280 (1977). No one plan can

achieve unitary status in all school districts.

The court also must be mindful that it is only

segregation caused by the intentional segregative acts of the

defendants that comprise the constitutional violation in this

case. "De facto segregation (segregation caused by private

choice) and segregation caused by authorities other than those

sued in this case, are not part of the constitutional viola-

tion .••• 11 Brown III, 671 F. Supp. at 1292 (citing Keyes v.

u.s. ~S~c~h~o~o~l~~D~i~s~t~r~i~c~t____N~u~m~b~e~r~~l, 413

189 (1973); Swann v.

Charlotte-Mecklenburg Board of Education, 402 u.s. 1 (1971)).

Because separate but equal schools violate the

Constitution, the racial mix of students in a school is an

important factor. The Court has emphasized on many occasions

that while racial mix is important, racial balancing is not
required.~ Swann v. Board of Education, 402 u.s. 1, 24

(1971). Even the existence of a small number of one race or

virtually one race schools is not necessarily violative of the

Constitution. Id. at 26.

In Brown III, Judge Rogers further recognized that

4

2A
8/821

"(s]egregative motive or the absence of such intent is relevant but not controlling in determining unitariness. 'The measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segrega-
tion caused by the dual system.' Dayton II, 443 u.s. at 538."
Brown III, 671 F. Supp. at 1293. In the Brown III opinion, Judge Rogers summarized by
stating that a school system that has obtained unitary status is "one in which the characteristics of the 1954 dual system either do not exist or, if they exist, are not the result of past or present intentional segregative conduct of the defendants or their predecessors." Id. This court finds the definition of unitary status articulated by Judge Rogers to be the clearest and most serviceable definition of that term espoused by any court. It combines all of the essential requirements from the Supreme Court.opinions with a workable standard for a court to apply to the facts of a given case.
In Green, the Court delineated six pertinent areas that courts should examine in deciding whether a school system has met its burden of abolishing the former dual system. These areas include: student assignment, faculty, staff, transportation, extracurricular activities and facilities. The parties have requested that this court review one other area, quality of education, when determining if these defendants have met their burden of proof regarding whether the DCSS is now a unitary
5
2A . 8/821

system. The court agrees that quality of education should properly be addressed.
The court held a hearing on the motion for final dismissal (or declaration of unitary status) on July 6 - 22, 1987. on November 22, 1987, after the parties had submitted their post-trial briefs and proposed findings of fact and conclusions of law, the court heard closing arguments on this motion. Earlier, plaintiffs filed motions for supplemental relief and to compel the DCSS to file a junior high plan. The court deferred ruling on those motions until it addressed the motion for final dismissal. All three motions are now ripe for decision.
STUDENT ASSIGNMENT Much of the evidence submitted during the hearing on the motion for unitary status properly concerned student assignment. Indeed, the separation of the races is the primary indicator of ·a de jure segregated school system. Plaintiffs accurately stated this court's duty, with regard to this issue, in their proposed findings of fact and conclusions of law at pages 54-55. Plaintiffs stated "[t]he court's task, in reviewing Defendants' progress in these areas, is to determine whether the remedies implemented by the Defendants have been effective in dismantling the old dual system. If they have, then the system should be declared unitary; if they have not, then further relief must be ordered so that the duty to desegregate is fully and finally discharged. Davis v. East Baton Rouge
6
'2A . 81821

. '
Parish School Board, 721 F.2d 1425, 1434 (5th Cir. 1983); Lee v. Macon county Board of Education, 616 F.2d 805, 808-09 (5th Cir. 1980). See also Swann v. Charlotte-Mecklenberg Board of
Education, 402 u.s. 1 (1971) . "
DEFENDANTS' CONTENTIONS The DCSS' position in this motion for unitary status is that it fulfilled its duty regarding student assignment in the 1969-70 school year when it closed the remaining de jure black schools and reassigned all students to their neighborhood schools under a bona fide neighborhood attendance plan. The DCSS argues that this action placed all students in the attendance zones they would have occupied in the absence of the constitutional violation. Although the DCSS concedes that the school system has undergone some resegregation since the implementation of the plan and the filing of the instant motion, the DCSS contends that shifting demographic factors and other factors beyond the DCSS' control caused this resegregation and that the DCSS is not legally responsible.
PLAINTIFFS' CONTENTIONS Plaintiffs contend that the DCSS has the continuing duty to combat all resegregation until this court declares that the DCSS has achieved unitary status. Their goal was to produce evidence showing that the implementation of the 1969 order did not eradicate all of the vestiges of the prior dual system, and that the DCSS missed opportunities to fulfill its affirmative duty to eradicate all of the vestiges of the former dual
7
'2A

system.

To support their argument that the implementation of

the 1969 order did not desegregate the DCSS, plaintiffs asked

the court to examine the resegregation that has occurred in the

DCSS.

Plaintiffs improperly place great emphasis on the

concept of racial balance3. Plaintiffs point to these 1986-87

school year statistics: (1) 47% of the students attending the

DCSS are black; (2) 50% of the black students attended schools

that were over 90% black; (3) 62% of all black students attended

schools that had more than 20% more blacks than the system-wide

average; (4) 27% of white4 students attended schools that were

more than 90% white; (5) 59% of the white students attended

schools that had more than 20% more whites than the system-wide

average; (6) of the 22 DeKalb County high schools, five have

student populations that are more than 90% black, while five

3 In Swann, the Court emphasized that racial balance is not the test of an unitary system.
, If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.
Swann, 402 u.s. at 24.
4 For purposes of this order all white and minority students other than blacks will be referred to as whites. There was no evidence presented that at the time this action was instigated that non-black minority students composed even one percent of the student population of the DCSS. Thus, 94.4% of the students attending the DCSS in 1969-70 school year were white.
8

0 72A

I.
other schools have student populations that are more than 80% white; and (7) of the 74 elementary schools in the DCSS, 18 are over_90% black, while 10 are over 90% white.
Plaintiffs also contend that the DCSS missed opportunities to fulfill its duty regarding student assignments. Plaintiffs' primary evidence in this regard was the testimony of Dr. Robert Dentler5 about the DCSS' failure to take advantage of certain desegregative tools: (1) the DCSS did not subdistrict, that is, the DCSS did not break this large county into subdistricts and racially balance. all of the subdistricts~ (2) the DCSS did not expend sufficient funds to target minority learning opportunities; (3) the DCSS did not put in place community advisory mechanisms bearing on equalization of treatment, other than the bi-racial committee that was established by the court; (4) the DCSS could have modified. the old "freedom of choice" plan to use it for desegregative purposes; (5} the DCSS could have clustered schools, placing children at different grade
/
levels in different schools; thus, establishing a feeder pattern; (6) the DCSS could have used magnet schools earlier than DCSS chose to use them; and (7) the DCSS could have used urban to suburban exchanges of students. {Transcript Vol. IX at 43-47)
While the DCSS had an affirmative duty to eradicate
5 Dr. Dentler was qualified as an expert in the areas of student assignment, educational administration, staff desegregation, program development and evaluation, specifically in the areas of desegregation, demographics, human relations and transportation. (Transcript Vol. IX at 12-13)
9
l72A ev. 8/821

the vestiges of the former dual system during this period, it is

undisputed that plaintiffs did not seek court intervention to

require the DCSS to implement any of the desegr'11gative tools

described above. In fact, plaintiffs did not seek further

judicial· intervention in this case until 1975, long after

plaintiffs claim that other desegregative tools should have been

utilized by the DCSS. Even then, the plaintiffs did not seek

implementation of the changes that they now seek.

DISCUSSION

Prior to the 1966-67 school year, the DCSS maintained

dual attendance zones for both blacks and whites. Beginning

with the 1966-67 school year, DCSS replaced the dual zones with

a system of geographic'zones with a "freedom of choice" transfer

plan. While this plan resulted in a number of black students

attending de jure white schools, the system had no significant

impact on the former de jure black schools. The majority of

black students still attended the de jure black schools. While

neutral on its face, the "freedom of choice" plan did not

dismantle the dual systems. In Green v. County School Board,
391 u.s. 430 (1968), the Supreme Court held that "in desegregat-

ing a dual system a plan utilizing 'freedom of choice' is not an

... end in itself.

Rather than further the dismantling of the

dual system, the plan has operated simply to burden children and

their parents with a responsibility which Brown II placed

squarely on the School Board." Id. at 440-42.

Within two months of the Supreme Court's decision in

10

10 72A
.... _•• 0/Q.,\

Green, the plaintiffs filed this action. By order of June 12,

1969, the consent desegregation plan for DCSS was implemented.

That order was designed to be a final and terminal plan for

desegregation. The order abolished the "freedom of choice" plan

and implemented a single neighborhood school attendance policy.

All of the remaining de jure black schools from the previous

dual system were closed. In 1969, the school population of

DeKalb County consisted of 74, 741 students of which 3, 754, or

5.6% were black.

Plaintiffs concede that "the closing of the black
I
'!
schools in 1969 did, for a time, result in the desegregation of

the schools of DeKalb County •••• " (Plaintiffs' trial brief at 7)

The court agrees with plaintiffs' concession.

Plaintiffs

further contend that the DCSS has become resegregated and that

the defendants are responsible for that segregation. While the

court agrees that the DCSS has become largely resegregated since

the 1969-70 school year, the court does not find that the defendant's are legally responsible for the resegregation.

Plaintiffs concede that the racial segregation in

DeKalb County is the result of demographic shifts. In fact,

plaintiffs' leading expert, Dr. Dentler, testified that "there

were profound changes taking place demographically [from 1969

until 1986 in DeKalb County]. 11 (Transcript Vol. IX at 38)

Plaintiffs' correctly contend that not "until all vestiges of

the dual system are eradicated can demographic changes con-

stitute legal cause for racial imbalance in the schools." Lee

11

1,0 72A Rev. 81821

v. Macon county Board of Education, 616 F.2d 805, 810 (5th Cir. 1980) (citing Flax v. Potts, 464 F.2d 865 (5th Cir.), cert.
denied, 409 u.s. 1007 (1972)). Plaintiffs see~ingly further
11 contend, however, that until the school system is declared unitary, not all vestiges of the former dual system will be eradicated. Such a contention, of course, is erroneous. It is axiomatic that all vestiges of a dual system must be eradicated at a point in time before the school system is declared to have unitary status or the school system must be declared to have achieved maximum possible desegregation. It is clear that the simple act of implementing a constitutionally accepted plan does not make a school system
desegregated. United States v. Texas Education Agency, 647 u.s.
504 (5th Cir. 198l)(Unit A), cert. denied sub nom., South Park
Independent School District v. United States, 454 u.s. 1143
(1982) (citing Henry v. Clarksdale Separate School District, 579 F.2d 916, 921 (5th Cir. 1978)); ~Thompson v. Madison County
f
Board of Education, 496 F.2d 682 (5th Cir. 1974). At points in their briefs, the defendants seemingly make the argument that such an implementation does relieve the school system of its affirmative obligations. To the extent that the defendants arguments can be read as supporting this contention, the court rejects their arguments. This court is mindful of the Fifth Circuit's guidance in Lemon v. Bossier Parish School Board, 444 F.2d 1400 (5th Cir. 1971), that '" [o]ne swallow does not make a spring. '"
12
.onA
Rev. 8182)

The court will now examine the evidence presented at trial concerning the vestiges of the former dual system after the desegregation order was implemented in this case. When the June, 1969 order was initiated, all children were assigned to their neighborhood school. As the court noted above, plaintiffs concede that this action effectively desegregated the DCSS for a period of time. The evidence that plaintiffs presented at the hearing which tends to show that the implementation of the June, 1969 order did not effectively desegregate all of the schools for a time period was presented by Roger Mills. Mr. Mills has been involved with this case in several different capacities. His initial involvement was as a named plaintiff in 1974, he subsequently became involved as co-counsel, and later served as a member of the bi-racial committee. He testified that "there w~re two schools that were majority black despite the implementation of the court order. The first school was Terry Mill Elementary School which was 76 percent black, and the second school was Stoneview Elementary which was 51 percent black." (Transcript Vol. VII at 190)
The court will accept the witness• contentions regarding these schools, because plaintiffs' exhibit number 95, which contained the same information, was admitted into evidence. The court notes, however, that plaintiffs did not show that Mr. Mills had a basis for personal knowledge of the school system during the 1969-70 school year. Mr. Mills did not enter this case until 1974, and he testified that he moved into DeKalb
13
)72A ev. 8/82}

county on January 1, 1974. {Transcript Vol. VII at 188). The court has some concern that two of the formerly de
jure. white schools were majority black at the tim_e the desegre( gation plan for DeKalb County was implemented. The court views
one race schools in the DCSS, both now and then, with suspicion. "The existence of a small number of one race, or virtually onerace, schools [however] within a district is not in and of itself the mark of a system that still practices segregation by
law." Swann, 402 u.s. at 26. The court was presented with no
evidence that these schools are a vestige of the dual system. The -eviderice-·presented at the hearing showed that demographic shifts in the Atlanta Metropolitan Area began in the 1950s. In the 1950s, the population of DeKalb County was basically white; but as more and more blacks moved into the Atlanta Metropolitan Area, the rapidly growing black population began to move into the southwest DeKalb County area. The area surrounding Terry Mill School was one of the first areas to be effected by a rapid shift in'the minority population.
Dr. David Armour testified about why Terry Mill was a majority black school at the time the desegregation plan was implemented in DeKalb county. Dr. Armour is an expert in the areas of the educational and social effects of desegregation plans, including academic achievement; the effects of demographics on school enrollment trends; the evaluation of alternative desegregation plans; the causes of residential segregation; assignment of faculty and staff in school desegregation plans;
14
AO 72A IAllv. 8/82)

research methods and survey methods; and statistical analysis of

data. Armour testified that in 1966 Terry Mill had only two

black students, and 590 white students. By 1967, due to the

population shifts of black resldents from the City of Atlanta

into DeKalb-county, 23% or 140 out of 613 students at the school

were black. In 1968, when the plan was adopted, the percentage

of blacks and whites was equal. By 1969, when the plan was

implemented, the percentage of black students at the school was

76%. (Transcript Vol. V at 120-21)

There was no evidence presented that the former dual

system in any way contributed to the rapid racial transition of

that school. Nor was there evidence that a formerly de jure

black school was located within that area. Terry Mill was, of

course, a formerly _de jure white school. For these reasons,

the court cannot find that the ~rior unconstitutional acts of

the defendants were responsible for the high percentage of

minority students in Terry Mill School in 1969.

/ The court is not as concerned with the racial im-

balance in 1969 in the Stoneview Elementary School. The racial

mix at that school was practically 50-50. There was only one

percent more black students in the school than white students.

That mix represents perhaps the ideal racial integration

situation.

Practically equal numbers of black and white

children attended school together, The court notes that, unlike

the majority of the County, this area has been characterized as

a stable integrated area since the inception of the integration

15

A072A (Rev. 8/82)

plan. The racial mix of the same school in the 1986-87 school year, according to plaintiffs' evidence, was 53% black.
There was insufficient evidence presented to this court from which it can make a determination, as defendants urge, that the implementation of the 1969 order resulted in full eradication of the vestiges of the dual system that would entitle them to a declaration of unitary status on this issue. While the court is satisfied that the two majority black schools that were in place when the order took effect in the 1969-70 school year are not vestiges of defendants' prior unconstitutional conduct, there was insufficient evidence presented about how long the school system remained relatively desegregated before demographic changes had the effect of resegregating certain schools. There is considerable evidence that the defendants actions in 1969 resulted in elimination of most of the vestiges of segregation. The achievement of unitary status in the area of student assignment cannot be hedged on the attainment of such status for a brief moment. For this reason, the court finds it necessary to examine the actions
of the ocss over the last two decades.
HISTORY OF THE DEMOGRAPHIC CHANGES IN DEKALB COUNTY A true understanding of the problems and successes of
the DCSS cannot be found without an examination of the demographic changes experienced by DeKalb County in the period between 1969 and 1986. DeKalb County has experienced phenomenal growth since 1950. In 1950, the County's population was a mere
16
A072A (Rev. 8/821

II
77,0000. By 1985, the population was in excess of 450,000 • . In 1970, there were 7, 615 non-whites6 living in the
northern part of DeKalb County and 11,508 non-wh~tes living in the southern part of the county. By 1980, there were 15, 365 non-whites living in the northern part of DeKalb County and 87,583 non-whites living in the southern portion. Between 1975 and 1980, approximately 64,000 black citizens moved into southern DeKalb county, most moving from the City of Atlanta. Meanwhile, approximately 37,000 white residents moved from southern DeKalb County to surrounding counties, mostly Gwinnett county. While there was some growth of the white population in southern DeKalb County from 1950 until 1975, in northern DeKalb County, the number of whites grew tremendously during that period.
As the result of these demographic shifts, the population of the northern half of DeKalb County is now predominately white and the southern half of DeKalb County is predominately black. Evidence presented at the hearing indicates that racially stable neighborhoods are not likely because whites prefer a racial mix of 80% white and 20% black, while blacks prefer a racial 50% - 50% mix. (Transcript Vol. V at 53) The demographic shifts have also had an immense effect on the racial compositions of the DeKalb County schools. From the period of 1976-1986, at the elementary level, the DCSS experienced an
6 In this context, the evidence presented to the court distinguished between whites and non-whites, that is, minority students including non-blacks.
17
~0 72A IR•v. R/821

enrollment decline of 15%, and within this change, an increase in black student enrollments of 86%. At the high school level, during the same period, DCSS experienced an enrollment decline of 16%, while the number of black students rose by 119%.
STEPS TAKEN BY THE DCSS TO COMBAT DEMOGRAPHIC CHANGES Since 1976, a bi-racial committee, appointed by the
court, has reviewed all proposed boundary line changes, all proposed school openings and closings, and the M-to-M program. Since the implementation of court-ordered desegregation in this case, there have been approximately 170 boundary line changes. Dr. William Clark, an expert in the areas of urban geography, demographic processes, statistics methodology, housing patterns and survey analysis, testified that the boundary line changes had no significant impact on the school populations, given the tremendous demographic shifts tha~ were taking place at the same .--/ time. He opined that if no boundary lines had been changed, the shifting demographics still would have resulted in a significant increase' in black population in many schools, especially those
located in the southwest DeKalb area~lthough the defendants'
evidence showed that three boundary changes had at least a partial segregative effect, Dr. Clark testified,~t finds, that even if a boundary change might have had a short-
effect on segregation, in the long run these boundary changes did not have a significant impact on the racial mix of the school populations. (Transcript Vol. I at 73-74)
To combat the shifting demographics, the DCSS volun-
18
\0 72A Rev. 8/82)

tarily implemented a Minority-to-Majority program7 in the 1972

school year. Using approximate numbers, 4,500 students of the

72,500 enrolled in the DCSS in the school year 1986-87 par-

ticipated in that program. Participation has grown steadily in

the program over the last decade at the rate of about 500

students per year. (Transcript Vol. V at 61) Dr. Armour

testified that the impact of the M-to-M students goes far beyond

I
I the number of students transferring under the program. He

testified that at the receiving school approximately two whites

I

I
I

students for every black student is exposed to an integrated ·

I

learning experience. {Transcript Vol. V at 61-62)

Thus,

(

approximately 19% of the students attending the DCSS had an

\

l

integrated learning experience as a result of this program.··

L

·In the 1980s, the DCSS also instigated;. a magnet)

I

school program in schools located in the middle of the County.

The location of these programs in the middle of the County is of

critical importance for desegregative purposes. As was dis-

cussed above, the southern half of the County is predominately

black, while the northern half of the County is predominately

white. Only special academic programs located in schools in the

middle of this rather large county have much potential for

attracting both black and white students.

The magnet school programs in effect at the time of

the hearing include: a performing arts program at Avondale High

7 The M-to-M transfer policy allows a student to transfer from a school in which his race was in the majority to one in which his race w-as in the minority.
19

AO 72A
•--·~ OIO~\

school; the Scientific Tools and Techniques program at Fernbank

science Center; a science program for gifted and talented

elementary children at Snapfinger Elementary Sch~ol; a foreign

language program at Briarcliff High School. At the hearing, Dr.

Robert Freeman, superintendent of the DCSS, testified that the

ocss also had plans to maintain programs at three other schools

as magnet programs: the open campus located at Briarcliff; the

Occupational Educational Center North; and the Occupational

Educational Center Central. The ocss has two other magnet

programs on the drawing board: a school for the gifted and

talented at Kittridge Elementary School and a program for four-

year-olds at Evansdale Elementary School.

The DCSS also

operates a number of integrated experience programs: the writing

center programs for both fifth and seventh graders that are

racially controlled; the driving range school is racially

controlled; summer school programs are racially controlled as

much as possible; and a racially controlled dialectical speech

pr~gram was to be implemented in the 1987-88 school year.

HAS THE DCSS ACHIEVED MAXIMUM DESEGREGATION?

The court has examined the efforts that plaintiffs

contend defendants ·should have taken to achieve unitary status

in the area of student assignment, the steps that the DCSS has

taken to accomplish their goal, the dynamics of the changing

demographics, and the effects of the changing demographics on

student attendance. With these factors in mind, the court must

[ decide if the defendants have accomplished maximum practical

20

'-0 72A
·--~~ 0 10"'1\

'l desegregation of the DCSS or if the DCSS must still do more to
~ulfill their affirmative constitutional duty.
Most of plaintiffs' efforts to convince this court
that defendants must do more to fulfill their constitutional
duty centered on Dr. Dentler's testimony about what desegrega-
tive tools were at the defendants' disposal during the time
that the resegregation of the County was taking place. Dr.
Dentler summarized his testimony in this manner:
[The DCSS] is racially imbalanced, it has schools that are extremely isolated racially, that continue to be identifiably black and identifiably white. It has failed to comply even in the broadest interpretation I could make with the single standard on ·certificated stat [sic]. It does not have a bi-racial committee which engaged (sic] in advising and guiding on desegregated strategies and race relations. It has an Mto-M program which has done about as much as it can do, which is very little, to desegregate the system. It has the barest bones beginnings of magnet programs, affecting in my count about 500 students at present, and there are some good ideas going, but they have a very long way to go, and they are in , shortfall right now.
So even on my briefest list, this district is segregated and has not offset the vestiges of discrimination as they impact on the child's daily learning experience, and that's the essence of the school treatment. It's not a unitary district, and its got some exciting good intentions which I have tried to note and honor, but ••• they don't bear on this assessment.
(Transcript Vol. IX at 123-24)
To rebut this evidence, the defendants presented the
testimony of Dr. Christine Rossell, an expert in the areas of
evaluation of alternative desegregation plans, the design and
21
AO 72A (Rev. 8/821

implementation of desegregation plans, the effect of desegregation plans on learning, the effect of desegregation plans on demographics and statistical analysis of data. When asked whether she agreed with Dr. Dentler that the ocss did not properly respond to the population shifts occurring during the 1970s and 1980s, Dr. Rossell testified:
I am sure that [the ocss] could have done something to make marginal adjustments, but
Ij these trends are so massive that [the DCSS] could only have had a marginal effect. The I basic trend was racial transition, blacks
moving from Atlanta into DeKalb County, and ••• there is nothing that would have changed that basic factor.
I {Transcript Vol. XI at 85) When asked whether magnet schools
I would have worked in the mid-l970s, the period of time when Or. Dentler advocates that such programs should have been started in the ocss, Dr. Rossell testified that all studies available at that time, concerning the effectiveness of magnet programs, indicated that magnet programs were not very effective. (Transcript Vol. XI at 86-87) To rebut Dr. Dentler's testimony that the M-to-M Program as implemented in the ocss is ineffective, Dr. Rossell testified that, in 1987, the M-to-M transfers will reduce "racial imbalance by 18 percentage points if you use the index of dissimilarity comparing blacks to non-blacks, by 20 percentage points if you use the relative exposure index comparing blacks to non-blacks. That is a fairly large reduction in racial imbalance." (Transcript Vol. XI at 87) or. Rossell further testified that the magnet programs and integrated 22
,Q72A Rev. 8/821

learning experience programs implemented by the DCSS have had

positive effects on desegregation and racial exposure. l'
script Vol. XI at 95).

(Tran-·

Once again this court is faced with the "battle of the

experts." The testimony of the opposing experts in this case is

so contradictory that to accept the testimony of plaintiffs'

experts necessitates that the court discredit most of the

testimony of the defendants' experts, and vice-versa. Faced

I with this decision, the court finds the evidence presented by the defendants• experts to be more reliable on this issue. The defendants' experts were more familiar with the DCSS. They had

spent more time than plaintiffs' experts in the DCSS, learning

about the inner workings of the DCSS and its problems and

successes, rather than treating the DCSS as a hypothetical

. situation. The court notes that pr. Walberg, Dr. Armour, Dr.
I/ Rossell and Dr. Clark are leading experts in their respective I fields and all have had considerable experience in the desegre-

\_ gation area.

Plaintiffs' desegregation expert, Dr. Dentler, did not

base his testimony on an empirical study of the school system.

Due to his lack of personal knowledge of the DCSS, he was forced

to treat the DCSS as a hypothetical situation. Based upon data

made available by the school system, his testimony centered on

the failure of the DCSS to achieve racial balancing. The court

found more compelling testimony about what is being and can be

done to improve the quality of education for all students and

23

AO 72A IRev·. 8/82)

achieve maximum practical desegregation at the same time.
r Based upon the evidence presented at the hearing, the court finds that the ocss has done everything that was reason-
I able under the circumstances to achieve maximum practical
desegregation in DeKalb County. Plaintiffs request the court to

go back in time and ask the question "what if the defendants had

That time has passed. While there may be

some case authority for approaching desegregation cases in that

manner, this court will not dwell on what might have been, but

what else should be done now. "At any time, more could have

I
I
'I I
~\ ·r
I \
\\

been done to achieve racial balance in the schools. But, it

begs the issue of this case to argue that racial balancing must

j·····

'l be done today because it was not done yesterday. Brown III, )

''

671 F. Supp. at 1309.

q6{0~~\

/

Although the defendants might have been able to do

something more to maintain desegregation while the dramatic

population ' shifts were occurring, the court, based on the

evidence presented at the hearing and the court's long involve-

mentS in this case, finds tha·t defendants' actions achieved

maximum practical desegregation from 1969 to 1986. The rapid

population shifts in DeKalb County were not caused by any action

on the part of the ocss. These demographic shifts were in-

evitable as the result of suburbanization, that is, work

opportunities arising in DeKalb County as well as the city of

8 The undersigned was assigned to this case on January a,
1981, approximately twelve years after its filing. Prior to that time, Judge Newell Edenfield supervised this case.
24

II

Atlanta, which attracted blacks to DeKalb; the decline in the

number of children born to white families during this period

while the number of children born to black families did not

decrease; blockbusting of formerly white neighborhoods leading

to selling and buying of real estate in the DeKalb area on a

highly dynamic basis; and the completion of Interstate 20, which

made access from DeKalb County into the City of Atlanta much

easier. (Transcript Vol. IX at 33) There is no evidence that
~1 the school system' s previous unconstitutional conduct may have
:11 contributed to this segregation. This court is convinced that

any further actions taken by defendants, while the actions might·

have made marginal adjustments in the population trends, would

not have offset the factors that were described above and the

same racial segregation would have occurred at approximately the

,

same speed.

\

This court does not dismiss lightly plaintiffs allega-

tions that the defendants could have done more to desegregate the DCSS/. "The failure to take desegregative action by a

district that had an affirmative duty to desegregate should be

carefully examined by the court. If a district has consistently

dragged its feet on desegregation then the vestiges of the

segregated system may remain." Brown III, 671 F. Supp. at 1308.

Although the plaintiffs, defendants, and the HEW all consented

to the June, 1969 order implementing a race-neutral neighborhood

school system, the Court later made it clear in Swann and Green

that such plans would not satisfy the duty to desegregate

25

,Q 72A ~ev. 8/82)

unless it did effectively desegregate the system. Even though a student assignment plan may be racially neutral, unless the former vestiges have been removed, a race-neutral plan can perpetuate the former dual system.
To reiterate, this court finds that the implementation of the June, 1969 order eradicated most of the vestiges of the former dual system. Defendants' efforts to desegregate this system did not end there, however. When faced with rapid resegregation of the system, the DCSS implemented both a M-to-M program and a magnet program. Both of these programs were implemented without the prompting of this court or the plaintiffs. Both of these programs have achieved a degree of success in desegregation and racial exposure.
Although defendants did not implement all programs described as permissible in Swann, this court cannot find that
l·- it neglected its constitutional duty to eradicate the vestiges
of the ~ormer dual system. The great weight of the evidence indicates that the segregation that occurred in DeKalb County would have taken place at approximately the same speed whether or not defendants had implemented the desegregative tools described by plaintiffs:J While racial mixture is a proper goal of a formerly segregated school system, there is no constitutional right for any student to attend a school having any particular degree or racial balance or mixing. " Milliken v.
Bradley (Milliken II), 433 u.s. 267, 280 n. 14 (1977); Pasadena Board of Education v. Spangler, 427 u.s. 424, 434 (1976). At
26
AO 7'2A

!/ this juncture, the court is convinced that, absent massive
bussing, which is not considered as a viable option by either the parties or this court, the magnet school prog_ram and the Mto-M program, which the defendants voluntarily implemented and to which the defendants obviously are dedicated, are the most effective ways to deal with the effects on student attendance of the residential segregation existing in DeKalb County at this time.
Based upon the dramatic effect the implementation of the June, 1969 order had on eradicating the vestiges of the prior dual system, the DCSS' continuing efforts to battle resegregation by implementation of voluntary M-to-M and magnet school programs, the absence of any persuasive evidence indicating that the actions of the DCSS · in any way promoted the resegregation that occurred in the county, and the evidence that indicates that other efforts by the DCSS would not have effectively stopped or even slowed the rapid demographic changes that brought residential segregation to the County, this court finds that the DCSS has achieved maximum practical desegregation as of the !'986-87 school year. The goal in desegregation cases is to achieve the "greatest possible degree of actual desegregation, taking into account the practicalities of the situation." United States v. DeSoto Parish School Board, 574 F.2d 804 (5th Cir. 1974), cert. denied, 439 U.S. 982 (1978). The DCSS has become a system in which th_e characteristics of the 1954 dual i system have been eradicated, or if they do exist, are not the
\
I
27
'0 72A Rev. 8/821

\
-.\
. ,_..

result of past or present intentional segregative conduct by defendants or their predecessors. Brown III, 671 F. Supp. at 1293.
Plaintiffs argue that further desegregation may be accomplished by, ~nter alia, establishing a magnet school program or grade reorganization plan, such as a comprehensive junior high school plan. The court agrees with plaintiffs contentions in this regard. As the court discussed above, the defendants are obviously dedicated to the magnet program and the court does not find that court supervision is necessary to insure that magnet programs are used to bring about maximum practical desegregation.9
The court is concerned that the defendants are not seizing the opportunity of implementing a junior high program to bring about further desegregation, if possible. The parties agreed that in the area of student assignment, the cut-off date for evidence in this area would be the 1986-87 school year. All
evidence/ presented to the court indicates that the ocss
obtained maximum practical desegregation through that cut-off date. Thus, the defendants have fulfilled their constitutional obligations in this area. For that reason, the court denies the motion of plaintiff to compel the defendants to file a junior

9 In the defendant's post-trial brief at page 36, defendants state: 11 (a]s the court heard, Defendants remain committed to providing all students the opportunity for an integrated education, and will continue to devote significant resources to the M-to-M program, integrated experience programs, and magnet programs with or without court supervision."
28

!1.072A :Rev. 8/821

II
high plan. STAFF ASSIGNMENTS
The assignments of both teachers and principals have been challenged in this case as violative of the dictates of Singleton v. Jackson Municipal Separate School District, 419
F.2d 1211 (5th Cir. 1969), cert. denied, 396 u.s. 1032 (1970).
The court will first address the issue as it concerns teachers. While the DCSS maintained a dual system, only black
teachers were hired to teach black students in all-black schools, and only white teachers were hired to teach in the allwhite schools. Of course, a segregated faculty is vestige of the former dual system, and all school systems that maintained a dual system have the affirmative.duty to eradicate this vestige. As long as schools have faculties that are identifiably of one race, it is unlikely that the sc~ools will be able to successfully assimilate students of another race.
Plaintiffs do not contend that the defendants have not fulfilled' their constitutional obligation with respect to hiring and retaining minority faculty. The proper gauge of the defendants' conduct in respect to hiring minority teachers is the racial composition of a district 1 s teacher work force as compared to the racial composition of the qualified public school teacher population in the relevant labor market.
Hazelwood School District v. United States, 433 u.s. 299, 308
(1977); Fort ·Bend Independent School District v. City of Stafford, 651 F.2d 1133, 1137-38 (5th Cir. 1981) (Unit A).
29
10 72A. Rev. 8/B:Zl

Plaintiffs concede that defendants have actively recruited qualified black applicants, and that the result of their efforts has allowed the defendants to hire a significant n~mber of black teachers, even though the number of black students graduating
from colleges in the United States with bachelor degrees in the
field of education has declined since 1975 and is still decreasing. While the state-wide average percentage of black teachers within a school system was 21% in 1986, the DCSS percentage was 26.92%. In the last five years, the DCSS has continuously employed a greater percentage of black teachers, than was the state-wide average. The court notes that the DCSS has an equally exemplary record in retention of black teachers.
Plaintiffs do contend, however, that the defendants have not complied with one of Singleton's requirements. Singleton pronounced three governing principles with respect to faculty employment practices during the desegregation process. Plaintiffs challenge only the first pronouncement, that is, plaintiffs contend that the defendants.have failed to follow the requirement that "principals, teachers, teacher-aides and other staff who work directly with children at a school shall be so assigned that in no case will the racial composition of a staff indicate that a school is intended for Negro students or white
(/ students." liL. at 1217-18.10 The court agrees that the defen-
10 The other two requirements of Singleton follow. Singleton prohibits a school system from discriminating in the hiring, assignment, promotion, pay, demotion or dismissal of faculty members and staff. Finally, Singleton requires that in school districts in which the process of desegregation effects a
30
72A tv. 8/82)

dants have not complied with Singleton with regard to assignment
of minority faculty.
The court notes, that in 1976, while_ Judge Newell
Edenfield supervised this case, the defendants were found to be
out of compliance with the first Singleton requirement. In his
order of November 3, 1976, Judge Edenfield made the following
findings of fact and conclusions of law on this issue:
The court finds that the defendants have not taken adequate steps to utilize reassignment of teachers to reduce the racial identifiability of faculty in accordance with the standard set out in Singleton v. Jackson Municipal Separate School District, supra. In Singleton, the Court of Appeals for the Fifth Circuit held that in order to reduce racial identifiability of a faculty, staff should be assigned so that the ratio of black to white teachers in each school is "substantially the same" as the ratio throughout the entire system. 419 F.2d at 1218.
Defendants ask that the court compare the facts in the instant case with Ellis v. Board of Public Instruction of orange County, 423 F.2d 203, 205 (5th Cir. 1970), , where the court found the school system to be in compliance with Singleton, despite the existence of racial ratios in individual schools twelve percentage points higher than the racial ratio of the entire school system. While the court is aware of the problems inherent in requ~r~ng that the teachers at any school be maintained at an exact arbitrary racial ratio, (cite] the current 40-48% of black teachers in some of the more predominantly black elementary schools does not even "approximate" the 15% system-wide ratio [cite].
reduction in the number of teachers or other professionals employed by the district, the school district must select the staff members to be dismissed or demoted on the basis of valid non-discriminatory reasons. 419 F.2d at 1218.
31

A significant reason for the wide disparity

in the racial ratios amongst schools in

DeKalb county is the reliance on the

replacement process, and the avoidance of

reassignments to even out the distribution

of faculty.. The court finds that this

system does not comply with the Singleton

standard, nor with this court's 1969 order

which required reassignment of teachers to

eliminate the effects of the dual school

system.

Accordingly, reassignment of

teachers must be utilized to make the racial

ratio of the faculty in individual schools

truly substantially similar to the system-

wide ratio. [cite]

·

Order of November 3, 1976 at 15-16.

There was no evidence presented at the hearing that

after Judge Edenfield issued the order referenced above that the

defendants reassigned their teachers to make the racial ratio of

the faculty in individual schools truly substantially similar to

the system-wide ratio. All evidence indicates that the DCSS has

continuously relied upon the replacement process to achieve

Singleton requirements ~nd avoided using mandatory reas-

signment., The result of this policy is that defendants have

never satisfied their duty to comply with Singleton.

Defendants argue that if the court views the system as

a whole they have complied with Singleton. Defendants contend

that plaintiffs improperly look at particular schools. De fen-

dants obviously misread the requirement of Singleton in this

regard. The pertinent language from that opinion follows:

For the remainder of the 1969-70 school year the district shall assign the staff described above so that the ratio of Negro to
white teachers in each school, and the ratio of other staff in each, are substan-

32

tially the same as each such ratio is to the teachers and other staff, respectively, in the entire school system.

419 F.2d at 1218 (emphasis added). The prope~ focus for both

the court and the parties are whether individual schools deviate

substantially from the system-wide average.

Plaintiffs presented evidence ,that in the 1984-85

school year, seven schools deviated more than 10% from the

system-wide average of 26.4% minority teachers in the elemen-

tary schools and 24.89% minority teachers in the high schools.

% Black

School

Students

Briarlake Elem

17.1%

Chapel Hill Elem

96.9%

Gresham Park Elem 98.2%

Kelley Lake Elem

98.7%

Leslie Steele Elem 99.0%

Wadsworth Elem

95.5%

Gordon High

99.4%

% Black Faculty 14.29% 38.89% 39.29%
38.46% 37.04%
47.83% 39.22%

% Deviation -12% +12.5%
+13% +12% +11%
+21.5% +14.4%

For the 1985-86 school year, the system-wide percentage

teachers rose to 26.7% minority teachers in the elementary

schools and.26.36% in the high schools. The evidence shows that

the number of schools deviating more than 10% from the system-

wide average rose also.

% Black

School

Students

Briarlake Elem

18.9%

Hightower Elem

18.2%

Kingsley Elem

2.8%

Medlock Elem

34.4%

Chapel Hill Elem

97.5%

Sky Haven Elem

98.0%

Leslie Steele Elem 99.2%

Wadsworth Elem

96.7%

Gordon High

99.6%

Walker High

99.0%

% Black Faculty 13.79% 12.50% 16.67%
15.79% 41.46% 39.13% 39.29% 41.67% 39.58% 41.27%

;l Deviation -13% -14% -10% -11% +15% +12.5% +12.5% +15%
+13% +14.5%

In the 1986-87 school year, the numbers increased

33

again. During that year 15 elementary schools and 2 high

schools fell outside the 10% range. Again, the ratio of

minority faculty rose, reaching 27.3% in the elementary schools

and 25.95% in the high schools.

% Black

School

students

Hooper Alex. Elem 94.0%

Austin Elem

1.1%

Chapel Hill Elem

98.5%

Gresham Park Elem 98.0%

Hightower Elem

30.5%

Kelley Lake Elem

98.8%

Kingsley Elem

2.9%

Meadowview Elem

82.4%

Oakc1iff Elem

14.9%

Sky Haven Elem

97.3%

Smoke Rise Elem

12.9%

Leslie Steele Elem 99.6%

Terry Mill Elem

98.4%

Toney Elem

97.7%

Wadsworth Elem

96.8%

Columbia High

98.4%

Redan High

33.2%

% Black Faculty 37.5% 13.33% 39.53% 43.75% 15.0% 46.67% 15.38% 42.31% 17.14% 40.43% 13.51% 37.93% 47.06% 38.46% 40.0% 36.0% 15.71%

% Deviation +10.2% -14% +12% +15.5% -12% +19.5% -12% +15% -10.2% +13% -14% +10.5% +20% +11% +13% +10.1% -10.2%

Although the DCSS is not legally responsible for where

black and white families chose to live in DeKalb County, the law

of this circuit makes it legally responsible for the allocation

of minority teachers. Defendant offers two excuses for its

failure to achieve perfect Singleton compliance.

First,.

defendant argues that competition among local school districts

is very stiff and that it is difficult to attract and keep

qualified teachers if the DCSS requires that the teachers work

far from their homes. The former Fifth Circuit Court of Appeals

rejected a similar argument in United States v. DeSoto Parish

School Board, 574 F.2d 804 (5th Cir.), cert. denied, 439 U.S.

982. In DeSoto, the court said:

34

Pointing to the difficulties DeSoto Parish faces in competing with nearby, wealthier school systems in attracting and keeping qualified teachers, the board asserts that measures such as reassignment to achieve compliance with Singleton will lead to large numbers of faculty resignations. The fear of faculty resistance to desegregation measures, like the fear of community ··resistance, cannot be allowed to defeat an effective desegregation plan in favor of a plan that is unlikely to achieve a unitary system.
Id. at 817. The court is not unsympathetic to the difficulties
that the DCSS faces in this regard; however, the law of this
circuit requires the DCSS to comply with Singleton's requirementa now.
The DCSS maintains a transfer program. Under this
program, if a teacher has taught at the same school for a
period of three years, the teacher may request a transfer to
another school. (Defendants' exh·ibit 83) The predominant reason
given by both black teachers and white teachers when requesting
transfers is that they have a desire to work closer to their residen'ce. This allows the teacher to coordinate classroom activities with community and civic activities and alleviates
travel inconvenience. (Transcript Vol. II at 19-22} The court
notes that since DeKalb is such a large and densely populated
county, the ability to work close to home can save an individual
significant daily travel time. While the number of transfer
requests received by the County is relatively high, the number
35

of transfer request that are granted is relatively low.ll
Since the teachers requests are to transfer to schools near
their home, however, the transfers that are granted deter the
DCSS from achieving its Singleton goa1.12
Plaintiffs further contend that the DCSS' placement of
principals violates Singleton. Plaintiffs do not contend that
the DCSS has failed to fulfill its constitutional obligation
concerning the hiring and retention of minority administrators.
As in the faculty area, the DCSS has an exemplary record in
hiring and maintaining minority professional staff. Blacks now
compose 26.5% of the administrative staff of the DCSS. Blacks
are represented throughout all levels of the administrative
structure of the ocss.
Plaintiffs' concern about the assignment of principals
is that principals are assign~d in a manner such that the
number of black principals at a school is a strong indication of
the black student population of that school. The court must
11 At the high school level in the 1986-87 school year, 79 requests were made. Seventy of the requests were made by white teachers, and 9 by black teachers. Of the 79 requests, 26 were granted, 24 to white teachers and 2 to black teachers. At the elementary level, 103 requests were made, of which 57 were granted, 40 to white teachers and 17 to black teachers.
12 Defendants argue that they· achieved Singleton compliance in every school at some point in time over the course of this case; therefore, it has been relieved of its constitutional burden. It would be ludicrous for this court to accept such an argument. Acceptance of compliance with Singleton under that argument, would permit situations such as a school system having 20% of its schools in compliance with Singleton during a particular year would achieve Singleton compliance even though the other 80% substantially deviated from the system-wide ratio, as long as the other 80% eventually complied with Singleton.
36

agree. This court does not consider the evidence of principal
assignments in a vacuum, however. In United States v. South Park Independent School District, 566 F.2d 1221 (5th Cir. 1978), cert. denied, 454 U.S. 1143 (1982), the court briefly considered the allegation of the plaintiff that principals were assigned based upon the race of the individuals involved. The court stated: "We are not ready to hold. that each particular level of employment in a school system must have a particular racial composition. At the same time, however, we also recognize that in a community individuals might attach a certain degree of importance to the position of principal, and that it would be unconstitutional for a school district to assign principalships based upon the race·of the individuals involved." Id. at 1226.
In Singleton, the court did not differentiate between teachers or principals, but required that all "staff who work directly with the children at school shall be so assigned that in no case will the racial composition of a staff indicate that a school is intended for Negro students or white students. " Singleton, 419 F.2d at 1218. The principals and assistant principals are only two of the members of a schools staff that interact on a daily basis with the children. Singleton requires that the staff be considered as a whole. When the evidence concerning both teacher and principal deviations are considered, the need for further action by the defendants to comply with
37

Singleton becomes obvious.

Construing the evidence presented by the parties

concerning the assignments of principalships, the court finds

the majority black schools have a high percentage of black

principals assigned to them, while the majority white schools

have a deficient percentage of black principals assigned to

them. Plaintiffs' evidence focuses on the 1985-86 school year.

There was no evidence presented that the 1985-86 school year was

an anomaly. Plaintiffs showed that during the 1985-86 school

year, five of the 22 high school principals, and 18 of the 74

elementary school principals were black.

Of those black

principals, four of the five black high school principals were

assigned to schools that have student populations of over 95%

black. Only one of the five high schools with black student

populations over 90% had a white principal.l3 Thirteen of the

18 black elementary school principals were assigned to schools

at which the black student population exceeded 90% black. Conversely~ only four of the elementary schools with black student

populations over 90% had a white principal. (Plaintiffs exhibit

3)

There is also an obvious racial skew in the total

number of administrators (principals, assistant principals, lead

teachers) at the majority black schools. The court will first

examine the elementary schools during the 1985-86 school year.

13 Gyuri Nemeth, who testified during the July, 1987 hearing, is a white principal at majority black Walker High School (now McNair Senior High).
38

At this time the system-wide average of black administrators at the elementary school level was 30.1%. In the 43 majority white schools the number of black administrators were less that 10%. In the 11 schools in which the black student population ranged between 41% and 80%, the number of black administrators increased to approximately 38.5%. In the 20 schools in which the black student population was greater than 81%, the percentage of black administrators increased to 60%.
At the high school level, the racial skew of administrators was equally as s~artling. The system-wide average of black administrators at the high school level was 27.2%. In the 12 schools that were majority white, the percentage of black administrators was only approximately 22%. In the schools that had black student populations ranging from 41% to 80%, the percentage of black administrators was roughly 45%. In the majority black schools with black student populations of over 81%, the percentage of black administrators increased to 63.2%.
The court also analyzed an exhibit presented by defendants which depicted the race and sex of all in-school administrators for the 1987 school year. At the elementary school level, 27 out of the 77 elementary schools had black principals. In the 27 schools in which the principal was black, 60% of the in-school administrators were black. At the high school level, only four of the twenty-nine high schools had black principals. In those four schools, 75% ·of the in-school administrators were black.
39
A072A e
(Aw.8112)

. '
Such obvious deviations between percentage of black administrators in the majority black schools cannot satisfy the Singleton requirements. Again the court rejec~s any contention by the defendants that if a particular school met the Singleton requirement at one time, the DCSS is relieved of the Singleton requirement as to that school. At a minimum, Singleton contemplates an initial reassignment of staff that will achieve a system-wide balance of minority staff and then a neutral maintenance program afterwards.
Defendants complain that this court has not given the DCSS guidance on what acceptable deviation from the system-wide average would comply with the Singleton requirement of "substantial compliance." This court has endeavored to be flexible by not setting a certain percentage deviation · that will satisfy Singleton in this district. .The court, however, will comply with the defendants request for guidance by establishing an iron-clad rule. This ~ourt will adopt as this rule the previous guidance established by Judge Edenfield in the November 3, 1976 order. When' the school staffs (faculty and administrators) of ,/ all schools vary from the system-wide minority staff average by
'',II
no more than 15%, the DCSS will have obtained substantially compliance with Singleton. Any school that deviates by more than 15% will presumptively be a violation of Singleton. Absent extenuating circumstances justifying deviations of more than 15%, the court will not find Singleton compliance u n t e school staffs fall within the established parameters. At trial,
40
A072A $ (Piw.I/I:Z)

• I
the defendants did not offer an explanation for the existing substantial deviations.
This court will maintain jurisdictio~ over this case at least through September, 1988. Before that time period ends, the DCSS will have the option of implementing a plan that will achieve compliance with Singleton and submitting a report showing that they have so complied to the court. Due to the late date of this order, if compliance with Singleton within that short period of time will be unduly burdensome on the DCSS, the DCSS may file a report with this court in September, 1989 showing that it has achieved compliance with Singleton. It would appear that such compliance will necessitate reassignment of both teachers and principals.
While this court shares the concern of other courts of requiring strict mathematical. ratios, as the former Fifth Circuit recognized in DeSoto, such ratios are necessary "as a starting point in eliminating the vestiges of segregation in ••• faculty assignment •••• Moreover, singleton does not require that such ratios be maintained permanently; rather, it 'contemplates an initial reassignment so that the racial ratio at every school reflects the system-wide ratio, followed by the utilization of a non-discriminatory hiring, firing, and assignment policy thereafter. 1 " Desoto, 574 F.2d at 819 (quoting United States v. Wilcox County Board of Education, 494 F.2d 575, 580 (5th Cir.), cert. denied, 419 u.s. 1031 (1974)). Achieving compliance with Singleton should not be difficult for the DCSS
41
AOTJA $ (Aw.8112)

•

I

in the area of faculty assignments. In their brief, the defendants argue that any "school's faculty could be brought into line with a narrowly construed racial balance standard by moving, at most, two or three teachers." (Defendants' post trial brief at 50) PHYSICAL FACILITIES, TRANSPORTATION, & EXTRA-CURRICULAR ACTIVITIES
The defendants achievement of unitary status in the areas of physical facilities, transportation and extra-curricular activities were not contested -by the plaintiffs. The court agrees with plaintiffs' concession that the defendants have fulfilled their constitutional obligations in these areas and that no further relief is required.
Although the parties have stipulated that some clubs meet at certain receiving schools of the M-to-M program before the M-to-M buses arrive in ~he morning, plaintiffs do not contend that further relief is needed in the areas of transportation and extracurricular activities. It appears that this problem was brought to the courts attention to alert the court that the DCSS does not have a perfect record in the area of transportation and extra-curricular activities. Transportation must be provided for M-to-M students. The activity buses provided by the DCSS are more than adequate to provide all students with an opportunity to participate in extracurricular activities. The time for the club meetings are set by the students not the DCSS • The DCSS provides activity buses late into the night, and will provide bus service for only one

42

A072A 19 IAw.l/821

• I
student, if necessary. The court finds that the DCSS provides opportunities to all students, including M-to-M students, to participate in a wide range of extra-curricular activities without regard to race.
The plaintiffs also have some concern about overcrowding in the southern schools. Plaintiffs claim that portable classrooms are used more in the majority black schools than the majority white schools. All evidence at the hearing on this motion, indicated that the DCSS has a race-neutral policy with regard to the use of portable classrooms. The DCSS is constantly attempting to deal with the growing population of southern DeKalb County by building new schools and adding permanent additions to existing schools.
QU~TY OF EDUCATION The court considers .this area of dispute to be of utmost importance. The crux of the Supreme Court's decision in Brown was that the maintenance of separate but equal facilities for black students did not assure that black children obtained a quality education. Although quality of education is not one of the six classic areas of inquiry in school desegregation casesl4, the defendants did not protest litigation of this area. The defendants acknowledge that a school system that is not
14 Plaintiffs contend that quality of education can be considered a part of the facilities area, one of the six areas specified in Green as a proper area of inquiry for the purposes of deciding if a school system has obtained unitary status. The court finds that the labelling of the dispute concerning quality of education is irrelevant.
43
A072A e
(Rev. 8/I:Z)

. '
fulfilling its obligation of providing quality education to all
school children should not be entitled to unitary status.
The parties contest who should bear the burden of
proof on this issue. As the defendants concede that this area
of inquiry is important to a determination of whether the DCSS
has achieved unitary status, the court finds that defendants
should properly bear the burden of showing that all students in
the DCSS are receiving a quality education.
Plaintiffs concede that the DCSS is a wonderfully
innovative system.lS (Transcript Vol. I at 101) Plaintiffs
contend, however, that defendants have racially skewed the
provision of certain education resources, such that black
15 The court was impressed by the number of innovative
programs implemented by the ocss. Examples of these innovative
programs include: (1) effective schools program (a program initiated in 12 majority black schools to focus the resources of the school system on schools that will benefit most significantly); (2) parenting programs (providing parents with techniques and methodologies to help their children achieve in school); (3) lead teacher for student services (lead teachers work with individual students to improve their self-concept; they work with teachers to develop alternative strategies for working with children of various backgrounds; and they work with parents to help them facilitate the education of their children); (4} human relation supplements (a program instigated in the receiving schools of the M-to-M program, the goal of the program is to improve race relations); (5) homework helpline (provides immediate help for students and parents who are encountering difficulties in the completion of homework); (6) adopt-a-school (designed to use the resources of businesses to enhance education by encouraging companies to adopt a school and become its benefactor); (7) staff development programs; (8) latchkey program (in conjunction with the local YMCA, the DCSS provides a program for parents who cannot afford private day care services); (9) remedial education programs (e.g., a partially
state-funded program for students in grades 2 - s, who are half
a year or more below grade level in reading); and (10) the writing-to-read program.
44

..
students are not given an equal educational opportunity in the DCSS. In particular, plaintiffs argue these tangible factors have been skewed: (1) teachers with advanced degrees; (2) more experienced teachers; (3) per pupil expenditure; (4) number of library books per student; and (5) that there is higher teacher turnover in the black schools. Plaintiffs seemingly argue that a prima facie showing that these resources are skewed is sufficient for the court to find that the DCSS has not achieved unitary status. Defendants, however, focus on the effect such factors have had on educational gains by black students. It is the defendants contention that the black students in the DCSS have made greater advances educationally than white students. The parties difference of opinion on what factors influence quality of education make it difficult for the court to compare the voluminous data presented ~n this issue. In effect, the parties compare apples and oranges and ask this court to decide which is better.
Both the allocation of educational resources and the achievement of students are interrelated issues that must be examined to determine whether black students are receiving the same quality education as white students. The court will first examine the evidence presented by the defendants concerning achievement of black students in the DCSS.
The focus of the DCSS evidence on this issue was that it offered the same educational opportunities to all students. The DCSS presented extensive evidence about the uniformity of
45

its curriculum in all schools. The DCSS requires teachers to
prepare lesson plans that conform to the curriculum. (Tran-
script Vol. VI at 85-91) Defendants' expert Dr. Walberg spent a
considerable amount of time in the DCSS examining the curriculum
and the conformity of the various school~ to the curriculum.
Based upon his examination of the DCSS, Dr. Walberg testified
that "the District provides an exceptionally effective educa-
tional program. It provides a uniform curriculum, and it
provides equality of educational opportunity in the schools.
The District ••• provides continuous progress mastery learning.
I think this is an exceptionally effective program. They do
this by aligning the curriculum and the tests, by concentrating
very heavily on academic learning. They use curriculum guides.
They have in my opinion very careful lesson plans and extraordi-
nary attention to the match of the total district curriculum to
what the lesson plans are in fact. In most cases, although
there are some exceptions to this, the teachers actually have
those lesson plans in ·their classes and they are teaching them
pretty much on task." (Transcript Vol. IV at 91)16
16 Plaintiffs attempted to prove that the curriculum of the predominately black schools was not the same as the predominately white schools by presenting the evidence of a M-to-M student, Norma Denise Jones, who testified that another transfer student did very poorly while he attended Lakeside High School through the M-to-M program, but when he transferred back to his home school he did very well. Defendants successfully rebutted this testimony with the testimony of Melvin Johnson, the assistant superintendent for area one (an area in southern DeKalb County) . Mr. Johnson testified that the transcript of the student in question showed that the students grades were substantially the same at both the M-to-M receiving school and the students' home school. (Transcript Vol. XI at 25-27)
46
A072A e
Cftw.lll2t

. ' II

The court found particularly significant the evidence

r~

that black students who have been in the DCSS for two years

' I, achieve greater gains than white students on the Iowa Tests of

Basic Skills (ITBS). The DCSS compared students who entered the

DCSS in 1985 and took the ITBS for the first time in the 1985

school year then took the ITBS when it was administered in 1987.

Although whites scored higher than blacks on the test, the

percentage gain of black students was significantly greater than

white students. The students who were selected for the com-

parison were 546 white students and 778 black students. In

1985, the average score for white students was 73.3%, while

their score increased to 80.5% in 1987, a difference of 7.2%.

For black students, the average score for the 1985 exam was

40.8% and their score increased to an average score of 51.2% in

1987, a difference of 10.4%. The fact that blacks score lower
than whites cannot be attributed in any way to the ocss. These

students all. entered the DCSS in 1985. The black students

entering the schools system scored lower than entering white

students. The progress of the black students and the white
students can be attributed to the ocss. It is significant to

this court that black students, many of whom attend majority

black schools made greater gains on this test than the white

students, many of whom attended majority white schools.

(Defendants' exhibit 114)

The latest results from the ITBS that were·available

before the hearing establish that both black and white students

47

who have been totally educated in the DCSS score higher on the ITBS than students who entered the DCSS in the year of the test. Again black students score lower on the ITBS as . a group than white students. (Defendants' exhibit 115)
Blacks students in the DCSS also are more successful than other black students nationally on the Scholastic Aptitude Test (a college entrance examination test), while white students in the DCSS scored below the national average. The information on the SAT presented to the court was for the 1984-85 school year. (Defendants' exhibit 119)
The evidence presented to this court shows that the socio-economic status of a child affects his potential for academic success to a much greater extent than racial exposure. In fact, much of the evidence presented to this court showed that racial exposure did not effect a child's academic success. There was considerable testimony on that subject. (testimony of Walberg in unnumbered volume of the transcript at 40-62, and testimony/of Dr. Rossell in Vol. XI at 99-100) The court found
•f
( the evidence presented in this regard to be compelling. Several of the defendants' exhibits illustrated this
point as well. Defendants' exhibit 137 shows that black children entering kindergarten score much lower on the California Achievement Test than white students. Of course, only the child's home environment, including socio-economic factors, could bear on a child's achievement at that point in a child's academic development.
48

Both black and white students who are participants in the free and reduced lunch program score lower on the ITBS than students who are not on the free and reduced 1unch program. (Defendants' exhibit 117} The type dwelling in which a child lives is predictive of scores on the ITBS. Children living in single family dwellings score highest, followed by children who live in condominiums, duplexes, apartments, mobil~ homes, while children who live in institutions have the lowest scores. The exhibit further showed that a greater percentage of white students than black students live in single family dwellings and condominiums. (Defendants' exhibit 112)
Defendants' exhibit 110 shows that students who come from professional homes (that is, a home in which at least one parent is a professional) score highest on the ITBS. These students are followed by children. from two-parent homes. The lowest achievers are from single-parent households. A much higher percentage of black children come from single-parent
/
homes than white children. The court will now consider the evidence presented by
plaintiffs that certain of the resources of the DCSS are racially skewed. Plaintiffs presented evidence on these school treatment characteristics: (1) per pupil expenditure, (2} library books per student, (3} teacher experience; (4) teacher education; (5) teacher turnover; and (6) student retentions. Plaintiffs divided the schools into three different types for purposes of showing a comparison of the resources: {1) type I
49

I

schools - schools that have been majority white over the last

decade; (2) type II schools - schools that have undergone a

racial transition from majority white to majority blac~ over the

last decade; and (3) type III schools - schools that have been

majority black over the last decade. Plaintiffs then analyzed

the data to determine if the differences were statistically

significant.

Under plaintiffs analysis, differences were

considered statistically significant when there was less than a

5% probability that the pattern of data is happening by chance

alone. (Transcript Vol. VIII at 12)

The plaintiffs presented the following data on teacher

experience:

ELEMENTARY SCHOOLS

Average Number of Years Teaching

Fall 1984

Fall 1985

Fall 1986

Type I
Type II Type III

9.55 6.45 5.24

10.22 6.90 5.46

9.79 6.36 5.19

HIGH SCHOOLS

Type I Type II
Type III

7.99 6.83 5.34

8.74 7.14 5.68

8.90 7.08 4.91

(Plaintiffs exhibits 97 (a)., (b) and c; 98 (a), (b) and (c))

Using plaintiffs analysis, at the elementary level

during both 1984 and 1985, all three types were statistically

significant. In 1986, Type I differed significantly from Types

II and III. At the high school level, Type I differed sig-

nifiqantly from Type III for all three years.

With regard to graduate degrees held by the DCSS

faculty during the 1986-87 school year, plaintiffs presented the

following evidence:

so

II

Percentage of Teachers Having Graduate Degrees

ELEMENTARY SCHOOLS

HIGH SCHOOLS

Type I Type II Type III

75.76 61.84 52.63

76.05 64.3464.32

(Plaintiffs' exhibit 86 at 13-14, exhibits 99 and 100) At the

elementary level, all three types are statistically significant

from each other. At the high school level, Type I differed

significantly from Types II and III.

The court is, of course, concerned by the differences

between teacher experience and teachers with graduate degrees in

the different "type" schools.. The defendants concede that there

are differences and both attempt to explain the differences away

and argue that the differences should not matter because they do

not affect a student's potential for academic success. While

the court does not find convincing the plaintiffs evidence that

such skews affect students' learning potential, the court finds

that any school system should consciously make efforts to assure

that resources are distributed equally to all students. This

includes insuring that all students are taught by well-educated, experienced teachers. ~-A' previous dual system has an additional

burden of assuring that any school predominately attended b)\

minority students is given the same, if not superior, resourc;;.)

All evidence submitted by the defendants shows that, due to

socio-economic factors, a black student's potential for academic

success is less than a white student's potential; thus, making

their need for "resources" greater.

Whether a racial skew of resources affects a child's

51

. ' II
learning potential is irrelevant to this court. Even before the supreme Court's decision in Brown, the law required that minority students be given the same resources . as white stu·.·/dents. Accordingly, when the defendants revise their assignments of teachers and principals to meet the requirements of Singleton, they shall make the assignments in a manner that will equalize the experience and education of faculty and staff among the different "types" of schools.
The plaintiffs presented evidence and the defendants concede that the degree of teacher turnover is higher in the Type II and III schools than in the Type I schools. (Plaintiffs exhibits 101 and 102) Defendants presented evidence that steps are being taken to control the teacher turnover in the majority black schools. The DCSS has instigated a program in the majority black Columbia, Gordon,. and Walker High Schools that requires teachers to teach only four classes per day as opposed to five. This program led to a tremendous decrease in the turnover of teachers at these schools. (Transcript Vol. I at 177-78, Vol. Vat 183).
The court applauds the efforts of the DCSS to maintain its experienced teachers. The DCSS, 1 ike any other school system, cannot control how many of its employees chose to leave the system to teach elsewhere or pursue other opportunities. For that reason, the court will not impose an obligation on the
\ DCSS to slow teacher turnover in its majority black schools.
I The DCSS is obviously interested in this objective and will take 52
A072A tt
(Aw.l/l3t

all necessary steps without this court's intervention. Plaintiffs also contend that the number of books per
pupil in the DCSS is racially skewed among the "types" of schools. While there is a difference between the number of books in the "types" of schools, the court found the defendants explanation for this difference satisfactory. Several factors effect the number of library books in a particular school's library: (1) how often weeding (the removal of out-dated or duplicative material) occurs; (2) the shift of enrollment of a school (in the northern "type I" schools, population has decreased, while the southern "type II and type III" schools populations have increased); (3) how media resources are allocated by the media specialists of the different schools; and ·( 4) the number of "lost" books at a particular school.
Defendants presented ·the testimony of Frank c.
Winstead, the Director of Educational Media for the DCSS, and Helen Ruffin,· the Library Media Specialist at Sky Haven Elementary school, a majority black elementary school. {Transcript Vol. X at 175-200) The testimony of these witnesses convinced the court that any skew of library books is a resut: of th~~<-.~ ~)f factors listed above and ;as not the result ~ purpo~ conduct by the defendants·( The court also does not find that
\
the number of books in a library is indicative of the quality of the media materials available at the school.) There was insufficient evidence presented to this court to convince it that black' students are in any way handicapped academically by the number
53
AO 12A $ (Piev. 8112)

II
of books per pupil in their school libraries. Plaintiffs presented evidence that black students are
not as academically successful on the California Achievement Test, have higher elementary failure rates, and are more often retained (not promoted) than white students. The defendants evidence showed the same results. Plaintiffs argue that their evidence proves that children assigned to majority black schools are denied equal educational opportunity. The court cannot accept this contention.
The parties do not dispute that black students, both in the DCSS and elsewhere, are not as successful generally in academics as white students. As the court discussed above, the
-· .
court finds that socio-economic differences between the two groups influences academic success. The DCSS would not be acting in the best interest of Qlack students by promoting them to a higher grade, until they have achieved a level of academic success that justifies the promotion.
Plaintiffs' arguments in this regard seem to hedge on the language of the June, 1969 order that required the DCSS to implement remedial educational programs for students attending or who have previously attended segregated schools to overcome past inadequacies in their education. {Order of June, 1969 at 11). It is undisputed that at the time of the unitary hearing, there were no children attending the DCSS who formerly attended a de jure black school before the implementation of the 1969 order. That order referred only to de jure segregated schools.
54

' '
While there will always be something more that the DCSS can do to improve the chances for black students to achieve academic success, the court cannot find, as plaintiffs urge, that the DCSS has been negligent in its duties to implement programs to assist black students. The DCSS is a very innovative school system. It has implemented a number of programs to enrich the lives and enhance the academic potential of all students, both blacks and whites. Many remedial programs are targeted in the majority black schools. Programs have been implemented to involve the parents and offset negative socioeconomic factors.17 If the DCSS has failed in any way in this regard, it is not because the school system has been negligent in its duties. Indeed, Dr. Edward Bouie, Sr., Associate Superintendent for Program Development and staff Assessment, testified that the DCSS has .implemented a total management system designed to focus on the achievement of children. He further testified that Dr. Freeman, the Superintendent of the DCSS, has instructed him that any program that can be found to improve student achievement, should be researched, piloted, and placed in the DCSS. {Transcript Vol. III at 41) The DCSS
spends in excess of $12,500, ooo of exclusively local funds on
supplementary instructional personnel, such as contingency teachers, instructional lead teachers, lead teachers for student services, and remedial reading specialists. (Transcript Vol. III at 183-88} The court does not find that further court
17 See.footnote 15, supra. 55

' l

\
;
\
\
\

supervision is necessary to insure that the DCSS implements remedial programs to facilitate the potential for academic success by black students.
The last resource differential that the plaintiffs brought to this court's attention is that per pupil expenditures are higher in the Type I schools than in the Type II and III schools. This differential is of great concern to the court. In the 1984-85 school year, the expenditure per student in type I schools was $2,833, type II schools was $2,540, and type III schools was $2,492. Certain factors such as lower enrollment in the type I schools explains some of the difference in expenditures. While there was no compelling evidence presented that the amount of money expended per student results in a greater potential for academic achievement, this court is puzzled by the DCSS' practice of allocating what appears to be a larger percentage of its financial resources in the type I schools, when all evidence indicates that the needs of the type II and III schools are more significant. The DCSS shall endeavor to equalize spending among the three types of schools.
The defendants argue that this court cannot properly order relief in the quality of education area because the prior constitutional violation did not extend into this area. The court finds this contention to be without merit. A district court properly has broad discretion in desegregation cases to order relief that will facilitate the speedy eradication of all vestiges of the former dual system. Improving the quality of

56

,,I,I
education for all children, especially black children, is the
underlying purpose of all desegregation cases.
SUMMARY
The DCSS is an innovative school system that has travelled the often long road to unitary status almost to its end. While much of the court's order was spent on problems that still exist in the DCSS, the court has continuously been impressed by the successes of the DCSS and its dedication to providing a quality education for all students within that system. As Judge Edenfield recognized in his order of October 6, 1977 in this case: "Quality educational systems are a fragile blessing, as many metropolitan areas have learned to their sorrow. When one is found it should not be harassed out of existence to satisfy fractional technicalities."
The DCSS has eliminate9 most of the vestiges of the
former dual system. The court finds that the ness is a unitary
system with regard to the areas of student assignments, transportation, physical facilities, and extra-curricular activities. Before the court will declare that the DCSS has obtained unitary status, however, certain changes must be made. The DCSS shall have the option of either implementing a plan by September, 1988, or implementing such a plan by September, 1989, to achieve Singleton compliance with regard to both teacher and principal assignments. The DCSS shall file a report with this court detailing the plan. This plan should also equalize the number of teachers with advanced degrees and more experienced teachers
57

~I
among the types of schools. The DCSS shall attempt to equalize per pupil expendi-
tures among the types of schools during the 1988-~9 school year. Within two months of the end of the 1988-89 school year, the DCSS shall file a report with this court showing per pupil expenditures among the various schools. For purposes of this report, the schools shall be grouped in the same manner as plaintiffs grouped them for purposes of the hearing held on this motion.
In 1976, this court established a Bi-racial Committee to give guidance to the DeKalb county School Board regarding certain decisions. The court finds based upon the evidence presented during the hearing that there is no longer a need for the committee. Not only is there now a black school board member, but blacks are well r~presented throughout the administrative levels of the DCSS, including the position of assistant superintendant. Accordingly, the DeKalb county Biracial Committee is hereby abolished. The DeKalb county School Board, of course, may establish its own bi-racial committee.
The court denies the motion of defendants to dismiss. While the court is satisfied that the DCSS is a unitary system with regard to the areas of student assignments, transportation, physical facilities and extra-curricular activities and will order no further relief in those areas, the defendants must comply with the dictates above before this court will declare that the DCSS has obtained unitary status. The court grants in
58
I

.:1
' I'
part the motion of plaintiff for supplemental relief and denies the motion to require the defendants to file a junior high plan.
IT IS SO ORDERED this 3D~ day of June, 1988.

 
 Apalalsppteahrgeceposapwpieeesrreaconcpdhieeacsrke.eadsacgoaminpsltete

fiLED 1N ClERK'S Off1C£
.u.s.o.c.• Atlanta
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIAJUL 1 1993
ATLANTA DIVISION

VALENCIA MILLS, et al., Plaintiffs,

VERSUS

CIVIL NO. 11946-WCO

ROBERT R. FREEMAN, et al., Defendants

0 RDER

The captioned case is before the court on defendants' motion

for leave to use bond proceeds and on plaintiffs' counter motions for

a preliminary injunction, to show cause why defendants should not be

held in contempt, to enforce the orders of this court, and to strike

defendants' motion for leave to use bond proceeds. After careful

review and for the reasons stated herein, the court grants defendants'

motion and denies all of plaintiffs' motions.

FACTUAL AND PROCEDURAL HISTORY

On March 28, 1989, the voters of DeKalb County authorized

the sale of $98,000,000 in general obligation bonds to be used for

specific purposes including the construction of three new schools to

relieve severe overcrowding in the southern and eastern parts of the

school district. In July, 1989, $44,250,000 of the authorized bonds

were sold and, by early 1990, the funds had been expended or

committed. Defendants' current motion seeks permission to use the

remaining authorized funds.

In 1990, following a dispute concerning the permissible uses

of the bond funds, defendants agreed to refrain from committing or

expending the bond funds without prior notice to all parties and

approval of the court, pending resolution of the appeal of the case

AO 72A (Rev. 8/82)

before the United States Supreme Court. on December 19, 1990, this court ordered that
no further funds be allocated or committed by defendants without prior report to the attorneys for the plaintiffs and the intervenors, and subsequent approval of this court, unless otherwise ordered. On March 31, 1992, the Supreme Court ruled on the case, holding that 11 in the course of supervising desegregation plans, federal courts have the authority to relinquish supervision and control of school districts in incremental stages, before full compliance has been achieved in every area of school operations." Freeman v. Pitts, 112 S. Ct. 1430 (1992). In so doing, the Supreme Court reversed the decision of the Eleventh Circuit and affirmed the decision of this court. Noting that neither party had challenged the trial court's retention of supervision over the area of "quality of education," the Supreme Court did not address the issue except to approve the court's use of equitable discretion in withdrawing its control over some areas while retaining supervision of other areas. Id. The case was remanded to the Eleventh Circuit to "determine what issues are open for its further consideration." Id. On December 7, 1992, the Eleventh Circuit affirmed this court's order of June 30, 1988 and remanded the case to this court to consider "faculty and staff assignments ... resource allocation, the quality of education ... and the good faith commitment of the school district." Pitts v. Freeman, 979 F.2d 1472, 1473 (11th Cir. 1992). On October 29, 1992, defendants filed their motion for leave to use the bond funds. On November 9, 1992, plaintiffs responded with
2
AO 72A. (Rev. 8182)

AO 72A (Rev. 8182)

their motions for a preliminary injunction and to strike defendants' motion, and plaintiff-intervenors filed a response to defendants' motion. Also on November 9, 1992, the court held a hearing in chambers on these matters. Following the hearing in chambers, all parties filed supplemental briefs. Following the Eleventh circuit's remand, all parties filed additional briefs. Finally, on June 1, 1993, the court met in chambers with attorneys for all parties regarding these and other outstanding matters. Defendants Motion and Arguments
Defendants' motion seeks the court's permission to use the authorized bond funds to build three new schools, Miller Road Elementary School, stephenson Junior High School, and Stephenson High School. Defendants argue that overcrowding of predominantly black schools will be alleviated by the proposed construction and that, because of state law regarding notice to voters of the purposes for which the sale of bonds is being authorized, bond funds can only be used for those purposes included in the Statement of Intention presented to the voters. 1 Defendants also argue that overcrowding in the affected schools, exacerbated by the delay caused by the freeze on using the approved bond funds, as well as a favorable bond market make the issuance and sale of the bonds imperative at this time. Finally, defendants argue that, although the "freeze" agreement and
The Statement of Intention presented to the voters in 1989 indicated that the funds were to be used, among other items, to construct an "Elementary school south of I-20 and southeast of I-285," a "High school in [the] Stephenson Road area," and a "Junior high school in [the] Stephenson Road area;" for 11 Improvements" and other "Renovation . . . or Modernization of Existing Facilities; 11 and for 11 Computer and Educational Equipment."
3

AO 72A (Rev. 8182)

order do not prohibit the issuance of the bonds, federal law, which requires that 85% of the funds be expended within three years of the sale of the bonds, constrains the sale of the bonds until the proceeds can be committed. Plaintiffs' Motions and Arguments
In response to defendants' motion, plaintiffs filed a motion to strike defendants' motion because it is not supported by affidavits as required by Local Rule 220-1(a) (1) and because defendants did not comply with the December 19, 1990 court order. Plaintiffs also filed a motion for a preliminary injunction which would, essentially, expand the limitations of the December 19, 1990 court order by enjoining defendants from taking various specified actions without providing all parties complete data regarding the proposed action at least one month prior to submitting the proposed action to the court. 2 Plaintiffs argue that they have encouraged defendants to sell the remaining bonds at any time defendants deem most favorable, but plaintiffs object to approval of expenditure of the funds because defendants did not report the proposed use of funds to plaintiffs prior to filing the motion with the court. Plaintiffs argue that factual allegations about losses of funds, projections of populations, and actions of the "Mills plaintiffs" prejudice plaintiffs ability to respond because they are not supported by affidavits.
In arguing for a preliminary injunction, plaintiffs allege that defendants continue to "unilaterally, without report to the
2 Although plaintiffs' motions also alleged various discovery disputes, the court dealt with those allegations in its order of November 10, 1992.
4

courts, plaintiffs, intervenors, or amici," act in violation of court orders by buying and selling land, constructing and closing buildings, changing attendance zones, modifying program requirements, purchasing and moving temporary classrooms, and "generally behav[ing] as if no .court order is in effect, and no responsibility to inform or obtain permission exists." Plaintiffs also argue that they meet the four tests necessary for granting injunctive relief: {1) they are likely to succeed on the merits because defendants are acting in violation of the court's 1988 directive that all resources be distributed equally to all students, (2) they are suffering irreparable injury because black children are receiving an unequal and unconstitutional education, (3) the injury to plaintiffs outweighs the harm to defendants because defendants will suffer no harm by being compelled to obey the various court orders, and (4) public interest is best served by ensuring that all parties are treated equitably, that multiple changes are not required because of hasty and unscrutinized actions, and that resources are not committed "wastefully and needlessly and irrevocably:" Plaintiff-Intervenors' Arguments
Plaintiff-intervenors agree that the overcrowding is severe and argue that it is having a disproportionate impact on black students. Although plaintiff-intervenors support the immediate sale of the remaining bonds, they argue that there are better ways to alleviate the overcrowding than those proposed by defendants. Expressing concern about the use of mobile classrooms - trailers which negatively impact the quality of education, plaintiff-
5
AO 72A (Rev. 8/82)

intervenors argue that the number of trailers at a school should be taken into consideration in determining the severity of overcrowding. Plaintiff-intervenors argue that adherence to the usage stipulated by the Statement of Intention need not be as strict as defendants suggest and provide specific instances of discrepancies between actual expenditures to date and expenditures stipulated in the Statement of Intention. Arguing that priority in solving the overcrowding problems should be given to areas where overcrowding is the greatest and to areas where overcrowding currently exists, plaintiff-intervenors point out that the worst overcrowding currently exists in elementary schools. Plaintiff-intervenors also express concerns about the proposed junior and senior high schools: 1) plaintiff-intervenors have received no information about the junior high school; 2) both the junior and senior high schools, to be built adjacent to each other, will be "half empty when they open;" and 3) the relief to be provided by stephenson Junior High School will have a negative racial impact. 3 Plaintiff-intervenors recommend: 1) that only one large building or two small adjacent buildings be built in the Stephenson Road area to serve as a combined juniorjsenior high school; 2) that an elementary school be built at the Miller Road site; and 3) that any remaining funds be used to build elementary schools at the Marbut Road site, the Misty Waters site, or adjacent to Miller Grove Junior High School or to build additions to existing schools. Plaintiff-intervenors argue
3 Miller Grove Junior High School, 91% black, will still be overcrowded after Stephenson Junior High School opens whereas neither Stephenson Junior High School, 58% black, nor Stone Mountain Junior High School, 60% black, will be overcrowded.
6
AO 72A (Rev. 8182)

AO 72A (Rev. 8/82)

that all of these recommendations would be consistent with the Statement of Intention. Finally, plaintiff-intervenors point out that defendants have failed to mention other projects which were included in the Statement of Intention. They argue that all items should be explained before use of the bond funds is approved.
After the Eleventh Circuit decision remanding the case to this court, plaintiff-intervenors filed a supplemental brief in which they argue that the court needs to continue to supervise the building of new facilities because of the Fourteenth Amendment requirement that any action with a discriminatory impact must be justified by a nonracial explanation. Plaintiff-intervenors allege that the proposed building program will have a discriminatory impact and that defendants have not offered a nonracial explanation. Plaintiff-intervenors also point out that the Supreme Court stated that the district court may retain remedial supervision of even areas in which unitary status has been achieved if those areas have a synergistic effect on areas in which unitary status has not been reached. Plaintiff-intervenors suggest that this court make specific findings and conclusions as to the synergistic effect of all areas, not just the student assignment and faculty assignment areas specifically mentioned by the Supreme Court.
Both plaintiffs and plaintiff-intervenors argue that the court cannot release defendants from supervision in any area until it has evaluated the relationship between all of the Green factors to determine which are inter-related. Although not specifically stated, both groups of plaintiffs suggest that the synergistic relationship
7

AO 72A (Rev. 8182)

between the factors needs to be briefed, and possibly argued, after time for discovery, that the court make specific findings of fact regarding the relationship, and that the court continue to supervise the use of bond funds until the relationship of various factors has been specifically determined. Defendants' Arguments in Response to Plaintiffs and PlaintiffIntervenors
Defendants argue that they have not violated the December 19, 1990 order as they have neither allocated nor committed funds and they have communicated with plaintiffs about the bonds. As for the alleged violations of Rule 220-1(a), defendants point out that the motion also violates the timing requirements of Rule 220-1 but indicate that in a 23 year old case such violations are unavoidable. Defendants not only state that they understood that their motion could not be decided solely on affidavits, they argue that the essential facts are conceded by all plaintiffs: severe overcrowding exists, construction of new school buildings would remedy the overcrowding, a favorable bond market currently exists, and lead time is needed before the bonds can be sold and the buildings completed. Defendants reassert that, under the Georgia law, the Statement of Intention is binding as to how bond funds may be spent. They argue that the appropriate time to object to the bond issue or to the validity of any project in the statement of Intention was May 22, 1989, at the bond validation hearing. Finally, defendants suggest that plaintiffintervenors are merely trying to second guess the decisions of the school board and they argue that educational decisions should be made
8

AO 72A (Rev. 8/82)

by the school board and not by the court. After the Eleventh Circuit decision remanding the case to
this court, defendants filed a supplemental brief in which they argue, citing the Supreme Court decision in this case, that this court maintains only supervisory, not remedial, powers over the areas of student assignment, physical facilities, extracurricular activities, and transportation. Because the order regarding the use of bond funds was imposed before the Supreme Court decision, defendants argue, the legal basis for the order no longer exists. Because the purpose of the construction, to relieve overcrowding, is unrelated to race; because the majority of the students who will benefit from the construction are black; because "[t]here is no constitutional right to have school authorities build a school in one place rather than another;" because, as this court stated in its order of October 6, 1977, "the only question before the court is whether the plan proposed by a duly elected school board is constitutional;" and because the use of the bond funds "in accordance with the requirements of Georgia law in no way would affect Defendants' remedial obligations in this court," defendants argue that the December 19, 1990 injunction should be lifted, the bonds should be sold, and the funds should be used to build the schools proposed by the DeKalb County School System.
LEGAL ANALYSIS In its order of March 23, 1992, the Supreme Court held that a court may consider "quality of education" in determining whether a school system has achieved unitary status sufficient for the court to
relinquish supervisory control. Freeman v. Pitts, 112 s. Ct. 1430
9

AO 72A (Rev. 8/82)

(1992). In remanding the case to the district court, the Eleventh Circuit specified several areas to be considered in determining whether continued supervision of the DeKalb County School System was necessary, including "the quality of education.'' Pitts v. Freeman, 979 F. 2d 1472 (11th Cir. 1992). As this court has, as yet, made no finding that the quality of education is sufficiently uniform to relinquish supervisory control of the DeKalb County School System, the court maintains supervisory control of that area. All parties agree that overcrowding impacts the quality of education and that the bond issue was passed for the specific purpose of relieving overcrowding in the DeKalb County School System. It is, therefore, not necessary for the court to address any of the Green factors discussed in the order of June 30, 1988, which was the subject of the appeal to the Eleventh circuit and the Supreme court, to determine that the court still has jurisdiction to supervise the use of the bond funds.
Georgia law requires that the purpose of a bond issue be advertised to the public prior to the referendum to determine whether the bonds shall be issued. o.c.G.A. § 36-82-1(b). The statement of intention is binding in the expenditure of the bond funds "unless the governing body of such counties uses such bond funds for the retirement of bonded indebtedness." O.C.G.A. § 36-82-1(d). If the county determines that a project described in the statement of intention is not necessary, the county "shall use such bond funds for the payment of all or any part of the principal and interest on any bonded indebtedness of such county then outstanding. 11 Id. Thus, once a bond issue has been approved by the citizens of a county, use of the
10

AO 72A (Rev. 8182)

funds from that bond issue is limited to the purposes described in the statement of intention for the bond issue or to reduce the bonded indebtedness of the county. The funds may not be used for projects not described in the statement of intention.
The Statement of Intention presented to the voters prior to the approval of the bond issue at question indicated that the funds were to be used, among other items, for an "Elementary school south of I-20 and southeast of I-285," a "High school in [the] Stephenson Road area," and a "Junior high school in (the] Stephenson Road area." The three schools proposed in defendants' motion for leave to use bond funds fit the description in the Statement of Intention. Although defendants had originally planned to construct the proposed elementary school at a different site, the Miller Road site fits the description in the Statement of Intention and is, therefore, permissible under Georgia law.
The court is concerned about the severe overcrowding in parts of the DeKalb County School System. Although the court believes that other sites might have been chosen to provide more effective relief to the most severe overcrowding, the court finds that the proposed buildings will relieve overcrowding in severely impacted areas and in schools which are predominately black. The court further finds that, as the Statement of Intention specifically stated that funds would be used for a junior high school and a high school in the Stephenson Road area, funds intended for the junior and senior high schools may not be used instead to build more elementary schools. Finally, the court finds that any further delay in approving the use
11

of bond funds will merely exacerbate the overcrowding problem. As suggested by plaintiffs, Local Rule 220-1(a) requires
that "when allegations of fact are relied upon, [a motion shall be accompanied] by supporting affidavits." L.R. 220-1(a), NDGa. Although defendants did not strictly comply with the local rule, neither plaintiffs nor plaintiff-intervenors dispute the basic facts that the schools are overcrowded and that building the proposed schools will alleviate that overcrowding in areas which are predominately black. The court finds that, in submitting the motion for leave to use bond funds, defendants complied with the December 19, 1990 order that no funds be allocated or committed without prior report to the attorneys for the plaintiffs and the intervenors and without approval of the court.
CONCLUSIONS Having found that it maintains supervisory control over the quality of education in the DeKalb County School System and that overcrowding impacts the quality of education, the court finds that it has jurisdiction to approve or disapprove the use of bond funds to alleviate overcrowding by building new schools. Having found that Georgia law limits the use of bond funds to those purposes included in the statement of intention issued prior to approval of the bond issue, that the proposed buildings meet the descriptions within the Statement of Intention issued prior to approval of the 1989 bond issue, that the proposed buildings will alleviate overcrowding in predominately black areas of the DeKalb County School System, and that further delay in releasing the bond funds will exacerbate
12
AO 72A (Rev. 8/82)

overcrowding, the court finds that defendants should be permitted to

issue the remaining bonds for the purpose of building the Miller Road

Elementary School, the Stephenson Road Junior High School, and the

Stephenson Road High School and for other purposes described in the

Statement of Intention. The court hereby grants defendants' motion

for leave to use bond funds. So that the court may be assured that

the bond funds not budgeted for school construction will be used to

improve the quality of education where most needed, the court directs

defendants to submit to the court within 30 days of this order a plan

for the expenditure of those funds.

Having found that defendants have not violated the December

19, 1990 order and that there is no dispute as to the basic facts upon

which defendants' motion was based and having granted defendants'

motion, the court finds that there is no factual or legal basis for

plaintiffs' motions. The court hereby denies plaintiffs' motions.

\>~ay IT IS SO ORDERED this

of July, 1993.

WILLIAM C. O'KELLEY Chief United States District

AO 72A (Rev. 8/82)

1
CLERK ,,.mct£'RK
13

 
 Apalalsppteahrgeceposapwpieeesrreaconcpdhieeacsrke.eadsacgoaminpsltete

fll.ED lN CLERK'S OHI
.u.s.o.c. ·Atlanta

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

~t ~~ 2 b 1990

WILLIE EUGENE PITTS, et al. VERSUS ROBERT R. FREEHAN, et al.

CIVIL NO. 11946 WCO

0 RDER
The court conducted a telephone conference with counsel for all parties on February 23, 1990 to determine what further remedial action is required of the defendants by the order of the Eleventh Circuit Court of Appeals dated October 11, 1989. The court notes that the defendants 1 application for en bane consideration by the Court of Appeals was denied as was the defendants' motion for ~_stay pending the Supreme Court's decision on the defendants' application for a writ of certiorari.
The defendants' are hereby directed to prepare and submit within twenty days of the date of this order a proposal describing the remedial action the defendants intend to take by the beginning of the 1990-91 school year to comply with the order of the Court of Appeals. The defendants should also outline the action they intend to take on their own initiative in the future in order to achieve maximum possible desegregation. Specifically, the defendants should address whether they plan to implement a junior high school program, and if so, the framework of that plan. The defendants should also discuss their plans for the

)72A IN. 8/'8'2)

I!

new building developl!_lent contemplated by the bond issue which

recently passed. IT IS SO ORDERED this

"\....~

at-
da

y

of

February,

1990.

WILLIAM C. O'KELLEY United States District Judge

..
18'21

 
 II

IIII Apalalsppteahrgeceposapwpieeesrreaconcpdhieeacsrke.eadsacgoaminpsltete

r-··----.

I I

1

l

FILED IN CLERK'S OFFICE

~

.U.S.D.C. ·Atlanta

~ THE UNITED STATES o:sT?.Ic:- coeR' DEC 2 1 1990

FOR THE NORTHER.~ DIS:-RIC7 O'f GE::RGIA

.

ATLANTA DIVISIQ!;

lUT)1E..~H?.~_A.DS. Clerk

\
i

Byf . ' e"'~~k

I

' FRANKIE PRATHER, et al.

VERSUS

CIVIL NC. 11946-WCO

ROBERT R. FREE:t-'...AN, et al.

0 RDER

On December 19, 1990, ttis court entered an order in
the captioned case that, in part, allm.;ed for the intervention
and addition of certain parties as named plaintiffs. As a
result, henceforth, the style of this case shall be as follows:
VALENCIA MILLS, a minor, by her parents and next friends, BERTA MILLS and ROGER MILLS; ADESINA, ADREANA, and ARDC!:A SCOTT, minors, by their parents and next friends, CYNTHIA SCOTT and MAJOR SCOTT; ASHLEY and B 'RANDI ARMSTRONG, minors, by their father and next friend, HAROLD M. ARHSTRONG; Hl-.F..A.J'A. and JIHAN EL-SHABAZZ, minors 1 by t~eir parents and next friends, ASAHITA EL-SHABAZZ and NARWA.NNA EL-SHABAZZ; JJ..J1ES SOEERVILLE 1 a minor, by his mother and next friend, CAROLYN SAUNDERS; NATHAH JONES, a minor, by his parents and next frie!lds 1 Cl.POLYH JONES and WAYNE JONES; NADRJ..E I HJ:.L2: K, ?:ANGOOR FALAH, and SALIM SJ...BIR 1 rr.incrs 1 by their parents and next friends 1 ~!.AEASIN SABIR and ADIB SABIR; CHRISTINA TE:·!:..Z..S a r:.:~cr 1 by her mother and next f r ier:d 1 GF..L.CE THO! !AS; MICHAEL, STEVEN, and r=-cw::u~-.s CF~;..I:ER, minors, by their mother an':) n":' xt : r i e:~d 1 MARGUERITE CREAMER; SAHDI and :K'.h.Rl.A E;,ILEY 1 minors 1 by their parents and next frie:~ds, EVELYN BAILEY and LAR?.Y BAI LE"l; :SR..;NDOH RUSSELL, a minor, by his parents an:'i next friends, KAREN RUSSELL an:'. KEVIN RCSSELL; MICHAEL, GERALD, and LACY PERRY, minors, by their mother and next friend 1 NINA PERRY; DARIUS and KEVIN McVAY, minors 1 by their father and next friend, WILLIAH HcVAY; JULIA STEWART, a minor, by her mother and next friend, ROSE STEWART; JEEZANHAY, HALANI and

I

TASHIA..~A BLAKE, minors, by their mother and

I

next friend, BETTY BLAKE.

I

VERSUS

I

I!

ROBERT R. FREE:I-'.AN' Superintendent I E:.I z.;BETH

II

ANDREWS, NORJ-'.A BERGMAN, FHI L HcGF::::G-JR, LY!·:A.N

li

HOWARD, DO:t--."'NA WAGNER, DAVID WILLIJ..!~SCl~~' and PAUL WOJ-'.ACK, as DeKalb County Boc.~d of

Education merr~ers.

The case may be cited, however, simply as }~ills, et al. v.

Freeman, et al.

IT IS SO ORDERED this

"~
C'!"\....\ day

o~

December,

1990.

~~
WILLIAM C. O'KELLEY Chief United States District Judge

2

 
 Apalalsppteahrgeceposapwpieeesrreaconc0pdh9ieeac-srke.1ea2ds-ac1goa9min9ps5ltete16:56
••

P.02
FIL~.ul'.tI.Nc.CcL.E.RAK'USioflmtl e&

0 Pl'CA,Tl E

a IN THE UNITED sTATEs oisTRICT couRT
FOR THE NORTHERN DISTRICT OF GEORGIA

·SEP.

1995~ ·

ATLANTA DIVISION

LUTHE

VA~ENCIA MILLS, et al.,

Br,

VERSUS ROBERT R. FREEMAN, et al.

CIVIL NO.

...,..
\

0 RDER

The captioned case is before the court for eonsideration'1 ot

this court's prior order aated September 27, 1994 [218-1]. Therein

the court stated:

-

I ..

Defendants are hereby directed to provide all

information necessary to the court concerning

the following issues: (1) teacher allocation and

(2) per pupil expenditures. Defendants may also

submit a brief on the question of why they

contend that there are no further issues for the

court to determine.

Order of September 27, 1994, at 1. Subsequent to the September" 27
·,
order, the court granted two extensions of time in which defendants
• li
could. comply with that order, and in which plaintiffs could respond
.,.,.
to the proffered evidence and the brief in support of dismissal.

Consistent with the aforementioned orders, defendant Oek~lb

county School System (11DCSS 11 ) has submitted a brief in support of

final di~missal of this easa.

A rulinq

favorablG

t. o

ocss '

would

h~ve

the effect of terminatinq this court's supervisory relationship with

ocss, and fully returning control of the school system to local
I
authorities. Previously, this court has found DCSS to be ·in

compliance with a number of ,factors set forth by the United sta~es
supreme court in Gtsum v, School Board of New Kent Co' unt¥, 391 u.s.

430 (1968). specifically, tl:lis court has found that ocss is 'in

compliance in the following categories: student assignments,

A072A (Rev. 6162)

08-12-1885 16!57

P.03

transportation, physical facilities, ana, extracurricular activities.

The court did not dismiss the case in its entirety thouqh, because1the

ocss was found not to be "unitary" in respect to faculty a1111i9nments I
and resource allocation. The latter of the two, resoure~~t allocation,
j
was considered in tandem with "quality of education, 11 which is not

distinctly cateqorized in Green, supra. This court's ruling was

ultimately reviewed by the united States supreme court. FreemAn y.

Pitts, 503 u.s. 467 (1992).

'I
The Freeman court held that it ' was

appropriat~, if the facts warranted, for the district court to

Further, the Court ·----..·~-- tfti'}Jt>•
sanctioned the use of a;;:;;~~,''quality ot education" analysis, --~·:· 'fk;}~-~-~--
notwithstandinq its absence fromthe Green paradigm. Id. at 492-93.

The case was remanded for further consideration consistent with the

Fre•man decision. Id. at 500.

This court conducted a telephone conference. on September 6,

1995. At such conference, the parties appeared to be uncertain a,bou

the issues remaining for adjudication in this case, 1 and

court to provide some clarification.

Based on noldinq ot>Freemao, supra, the court finds that

order to dismiss this case~ '1t :must enter a finding ot "ful

. compliance" as to the remaining ~en factors, namely tacult
assignments and resource aJ,.l~ea.tion. This is consistent with·r''th
?

'l
, Oefendants and the intervenor plaintiffs were represented. b counsel at the teleconference, counsel for the oriqinal plaintiff was unable to be contacted in time for the conference, but has sine communicated with the court via facsimile (with copies to othe counsel), and has been apprised of the topics discussed during.th teleconference.
2

AO'l'2A (Rav. 6182!

09-12-1995 16:57

P.04

court's September 27 order, which instructed the ocss to submit

evidence as to teacher allocation and per pupil expendit~s, which

are functional synonyms for the two remaininq Grttn factors noted by the supreme court. Further, as indicated in this court'll order da" ted

June 30, 1988, and supported by the Suprme court's acknowledqtment of

the flexibility of the Green inquiry, fteemo.n, supra, at 492-93, 1the
court also must be satisfied that the quality of education is

consistent throuqhout the DCSS. This can be ascertained in large ~art

by a thorough examination of resource allocation, but tha court is. not

restricted to that evidence a...lone. It is important to emphasize that i.
the court will not revisit those Green factors in which full

compliance was previously found to exist. Lastly, the Freemon··opi!l'ion

requires this court to certify that the ocss has acted in good faith

in the implementation of the desegregation decree. "'The District

court should address itself to whether the Board had complied in

taitb with the deseqreqation decree since it was entered, and whe,,ther the vestiges of past discrimination had been eliminated to the extent

practicable.'" Id. at 492 (quoting

citv EURliC Schools y. Dowell, 498 u.s. 237, 249-50 (1991)) (emphasis

!

~

added).

. -.

To summari~e, the court finds that three specific issues

relevant to the question of ~tunitariness" require resolution befor

this case can be dismissed in its entirety: (l) full compliance with cacultx aaeiqnments;

-·-·- 'f'"

(2) f'ull compliance with rtsou~ct allocation; and

(3) a demonstration of good faith in compliance with the deseqreqation decree ~Y OCSS.

A072A tA~!V, 6182)

09-12-1995 16:57

P.05

In addition, before entering an order of final dismissal in this cas@, the court must be satisfied that the "quality of education" in'the DCSS is consistent with both the letter and spirit ot the desegregation decree.
Accordingly, defendants are hereby DIREC~ED to subm-i-t-a """n~ ew brief in support of final dismissal, with particular emphasis on those
l,
cateqories set forth above (218~1]. Further, defendants may submit statistical evidence, as current as is available, appended to such l:lrief, demonstrating full. compliance as to taculty assignments and
.. resource allocation. Defendants' brief shall be submitted on or
before 30 days after the date of this order. Thereafter, plainti' ffs are DIRECTED to file a response indicating why this court should,not
I
dismiss this case in its entirety [218-l). As with defendants, plaintiffs should focus their brief on those issues set forth above. Plaintiffs' response shall be submitted on or before 30 days after
.. defendants' brief is filed. If necessary, defendants' may-f-il.e, a , , I,
response brief within 15 days after plaintiffs' response is 'fil~d.
,,
Either side may fila a motion for oral argument contemporaneously with the submission of their respective briefs. The 'parties should be ~
l, I
mindful of the amended local rule, which limits briefs to 25 doublespaced. pages, and replies to 15 double-spaced pages. LR 220-l(d),
NDGa. (effective August 1, 1995). Further, all parties shall api;'en to their respective briefs a specific description of what additional evidence, if any, relating to the "quality of education" issue. the intend to present to the court in the event that a hearinq is
'J

AO 72A (Rn 61132)

4
- - ~1~ ,'

09-12-1995 16:58

P.06 I,

conducted, and an estimate of the time needed for such a presentation

of

evidence. .IT

IS

SO

ORDERED

this

~~day- of September,

1995.

~

W!LLIAM C. 0 1 ~ELLEY United states District Judge

-

ENlERED ON DOCKET
SEP 08 1995

- - '\""*

AO 7'J.A
(Rev. B/82)

5

--- .,,.

 
 .-~ .- •....
"1.

...

Apaasllptpeharegceposappwieeesrraecnocdphiaeersce.keads

against complete

-~:.:..;..,..:,.

0 "

Ui:iiTED ST/\TES DI~-~':'!tTCT COURT
NORTifEJ':N DISTHICT Oi.. CEGRGIA .A.TLt\NTA DIVIS.LON

- ~~~-~' -· t//3/?6 '

~\fJ fJf.T./it·1 PTTTS, et: al.

)

)

CI\.JL ACTION

)

vs.

)

)

)

.,,,

.-.1
t.• . .l .•

)

:i

H~ !

i

h
'I

OPJi':TON J\Nn ORDER

I

'I

!i

j.

il

In .Jenc 1969 thi.f; court cn.t<:~'~ecl. an o::der :i.n the

q

!j led :;ction cnj oining Lh.e. defeJ1do.nU; f::ccm d 1!; c.ri.ml.nating on th<,;:;

il,,, h.:wis of r<~C(~ in the C';.p ,•...,. l.<'."i. t•J.C,L. l c".l...Cl 1.·1.·1• C n..c...:": t..i...'.c• L., .t) C-·OUTI.<1·.·y ,<:,! (.•14100 ].. s;,,st:en.

d

.l'Ii, Tl!e coud: rc:i:.:•J.nc:d ju:r:L;dic:ticn over the c.:we for. the pn:r.po:w of

i:

jJ
'I

:Lr,-:plcr.:eJli::Lng

its

order.

In

Sc~ptP-mbe1:

19 75

and An~3U.!-:i t

11
197 6

this

'i
I

·"iili'
:" j

com:l.:

l:c.ld

hc~arini'::;

uron

the

COTiiplai,lt'.s

of

a

group

of

I,

!IIt

out

f:l-te c.ourt:' s 19 69 ordc~c.

Be:1sJc:-~lly these c:i. t i:;::r::J.i.c;

utL-I, ...-, ·J.. ~tl,_J " I -

••• •

•

(

1

•

·.:1- .., I •' ·r ~

to t~l·.~ m::~jority-to--ninority

(7.) ttnt:

d( 'hro 0.,.. ..,rJ..{'-lJ'.Y r.. '(}c '..ltl1'".u" 1·'1- rt:..l."::t.''l'_\ ~vyi~~o1-.:..·(.lI.·.L·.:; l.·'"t_', c_, ~

LU.1L"~'>.1.' r..·;·.'.tl_'J~.l

O

r:
'·

<:~dm:i.n Ls Lrat:ivc pc:n; mmr::l to the county's s chooJ.;>;

m.1d (:3)

zones

C(A·T t: ls lJO'.·I p-cC'pai:c~.l to s !::tete its f:inuinL.: an.~ con-

r • t "l·n f t·Jln '.'b1.-...rt:.O .. L

t l.'.t.'l").l.''u<(J>'

1• . . 0

1.. l-.. ll.;C:o.;.·.i. 4L·S,

0 ..

r•h ·Ll·ll-e=,":',~. (;-"

\.. ..

• .

.,.J.~F""'-'
.a.(. _ _ (,_)\..:;-.:)

. . . '-.:~ l'0• 1J·L• ··[·,.. ~L''..I. L'•"J l•·-

con.tcntions c<H1cerni.ng the proced-tn:-al

i! \. l·loSL'n.'<~

this act:ton.

L

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It !:
. ,I1,,I:
I,!,

nc.r_: he: 1W1Lnt:1inr••J ::cs

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(' 1 ·1<'<' -·. ,. ..J ·.,.

(··t c·t·.J..·_ r>I'f. J

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t

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T,J'-~"' I 't'h is nc{· i o.d r' i l· . .. . .

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'l'' ftC'

c1,· ., ny \·::1:.:

CCC-·;::J•.OlH.:(I,

'•lrl p;:!'t 1lJ'

tlH~

_,.~-net

ltl.~~t,

C1'1.!C

t:•l 01'0;I

;, ·t c;;·;ie <!l'c:idt'l1 1 .:tl r!;,'::.i:h ::nd the t f·d,·-lal of t-'':·/0 l:n·Jycrs fror;t i.1H~

i

,. (-~ ,..

· ':( :·)J . ~. ~;l! , 1 ..

r, .· :·,:·

:~!···· .. r· .. :~·1 l~t'_:·,lt 1~~· .,..._i'; t·i-!f~·1'i.· ·t(·(~~:-!1 C(YI\.:L-"-~--~~:

-] ..

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II

'i
il filed on behalf of b·:o c.l:t:;nr':;: .:·rll adult: Nc~gro c:i ti?.cn::; ;mel

I

:I!I
d

their mtno:c ch:LJ.dn'n \iho rc·~;:i.clc~ in DcKall) County, and all :1clnlt

:i

ii
I'
il

\·lhitc e:i.t:Lt-:cms mHl tJwi1: mino[ cld.ldrcn r:c~::::i.d:i.ng in D:~l\o.lb Counl:y.

:i

!'I~ 1\ 1__ .t.l10l11>1l t·l1c cour1': 11d"··"· ·.1·.•-'I)('-'t't·c..·<:1'-'1· y 1-c<[CY' J.,.L. ~C1 t·o t·l1.0-. p ].. al..nL' ..u":'.[. s

!'i!

:· he·.n.d.n ns a cla:·;s, no "cLu:;~;" h.c~r; CVE:'r. l:c€.:n pruperly ccrt i.ficd by

'I

:'

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tllis couTt ;;.tJ.thin the me~1ni.ng of Rul<:~ 23 of the Fcdc·c1l k ..1lc>.~; of

I•.'

II

!I
I!'··!!'

thout;h the court hqlc1 in 19t)9 that its ju~ci..f>diction over the cnr;e

i!
:t

\}Cn.tld continue, dcfen,l;mts claim that inasElt.u~~h an the o:r:i~~i.nA.l

II

II

il nnmed plnintifft> are no longer enrolled :i..n t:L:-! DeKalh school sy:·;--

,!,I

!!

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!

v·.· _. ______ :

B

o

ard of __...._.,.__ .. ~ ..

.....~· ~~!' -~...I.. -C-:·-a·t··i-.-o-n-·--------S-pt.-·l·n~·?-?;...l.. c~~---·,

/lt!.O U.S.L.H.

5111~, 5115 .

(.Jur;0 29,

u.s. 1••9 .7.6)·) -)-'.-1-1--c--.-1.-.i.-..-.n·J-·--l~."-.-'.t-·)-.0--1-·-1--.·-·-s·----l"-)•...-·-..1.·-L ·-·-r.}\'-.'-l3 ··1· .··.~ ...-C--c--)-··L-·I··,·:,M-..-··_-i.,.-Jc.·~·)·r··•.·-i, -o-n-·"-I.'c.·:-,~L--.,•.-) --·v--•---J-·1(-"c-,.,-c..-)b--c-o,:-;t, 420

1?.8,

I
I
I

130 (l~J7L~).

I

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I

It D.ppC'a:cs, hm·Jeve:c, that one of the nnmed plaint:.Lffs i~:

I

II

i

:•:I still a studcn.t: in the DeKalb Conn.ty sc110ols, and as to t;1Ls f:tn- !

ll

!t
ii

dent, the case is Dtill. a live~ cmJ.t::coversy.

Accnrclingly, th~

I:,'••·III cotn:t Hill :i.nler:pi:·ci:: the mov<J.nt-pla:i.nt::i.ff!> · pc~t:i.t:i.on for relief

il'I under the 1969 order as a mot'i on to intervene, joining the origi- .

II

nD.l narned plaintiff.

I The~ Fifth C:i.rcn.Lt hoD held that inl:f'J~v(:nl:io;)i

II

"II

". . . irs tiw p:coper cou!:se .fo·r. p<n:ental groLtp~

II
I

GC('1l\:.•Lllg t-o qlH'S 'c1·.nn currcnt: d ,. · · · cr:t.cu~nc:t.cs J·.n ·l·l1c :·unp lc -

The pctiLion

·for inter~xc·ntion iJouJ.d 1n::i.ng to the attention of the

p

district court thn p-recise issues v!hich the nc\v group

I

sought to :n;prcf.:;cnL cmd the ·1:1ays in \·.rhich the eoal of

I

I

a unitnry sy::Lcrn had alle;3ctlly been frustrated. The,

II
di~:; Lrict: court ccyulcl then determine Hhether these mat-

11

<t

II

tc:n; had been pn'v:Lmlf;ly rnh;ccl o.nd resolved and/or

I

I

!iI•

group l·icre cun:cntly l:..ncn·m to tl1c court ancl parl.:ieB in

I:II

I,d',I

Lhc :initial :;ui.t:.

If U1c L~om~l: felt: that: the! nc'>T

:;

;!
liI
·!
i .·_

-2-

4£ I ;;t;a

:a au

I U4 WP 1&4 j

illllt1UMM .moo- 4 014

•• =

e

S::: !! !I I I

ua

..

grCt1p htHl a ~: i gn i fic:_;T.JL c] .Ti.m VJldch :Lt could be:·: t rcprc~se:nt, i.ntcrvc:ntion \·:oulcl br~ nllm·1c<l." Hines

C> t h C:ir . 19 73 ) .

'fhc ~·otu:t finds th.:J.t the mov:Jnl:--pL:dntif:fs, Lonica Rocker, ct a!.. ,

r;atisfy the rc·qu:ixemrn[·r; for intervention undc~r H:inec; and Lhe~ce-

lo

:dI
"I.I. il ;:;(:tJO;t.

I\ule 2/:(b), Fcd.n..C:Lv.P .

I
i
·I

II

1
I

,'II,t

'l'l_1_ e'

c:otF:-t

fur: l:h2r

find~:

that

the n ;l,Y'd 1)1 ,,.: n·r·1· .<. ·'-~ t::.

nJ,.o~r\.! a•-··"·-Ldl·. -

. c:::; ..L

'-"'

-~:
•A•

~,-~.<U'

I

l!
il rcprc:-:;cnt a. class of Url.ll8il'C:!cl indivlclua1.s capuble of being eerti-
i,,i

II ;I
,I

fic.::d Hi thin the nh:·:,•ni.nr; of Ru.lc 23, Fed. R. Civ. P. , and hereby

I
I

il CER'1'lF.U:S tlw c. las:; undc~.r: Rule 23 (b) (2) as conf;h; t:i..ug o:': alJ

;
I

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j!

i

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•'

c [. :e ;· ;: f)t 1

l ··r>n res:i.din0 in DcX::tJ.b County,

I

--- o f r~u-.y
~·- ... - ·-

-

·

-B··

unnl
- ·····-· ............

•·

.

. .

Ec-1-1-·:.c:. :'·-~-.·l..:_:_i_.on

-~-·:-.---·-·S-··p- a---n--g-l-e·-r,

sup:r:.:1_ n.i:
--~ ------::

Sll5.

1-<1·. 1,lc.'.,'l11C'C1 p ] .'l·J'.L-,L->.l. Ic.f.:<•,, o,,-]-·.,- r,nc,•,]•_('lIC' ..1•..11 ll·.lC 'r"- OL11·.'!r. le-;··.·l·1 ' ···t OJr.:

II

'I
jl

l i..1•-.- e•. -CJtJ·-J.1•·.·. y, ~L-L1 1C- co-8, L··c• f·.·.·1.•nc1.s -LI·1I<·--H·.·. tl1c ll<1,lr1CC11 p.1·c·t·.L- nL·-.-L· .Lr:..f<~·~ a• nd t·_ll-c··.·.·u·:-

.I

l'I ni·tor-:ncy~; h;:.vc and \ri.ll aclr:~qnatc'ly represent the intcrc::;ts of th.'

"i:h, hL-1d~ :; c:d.dcnt~; tln:ouz)~uut thC:-~ connty.
·I

li

I.,I

H-- to- H I' ··o,, r: am
______ _.. _ _ _ ··' -~-- ___ ,_.1______ -

'I.'l.1e ,"( ·1 b I-~' (. I .t·.JL- .• C~ 'o tl·-!-1-·L·."/ .c'·,.\.., T..1.<'!·1 --,~-

. --f) 1". '.-.,•.'j. (n.-. .·,. 1.... ."/ ·· t·. 0 ___ -l-\,-_I' l.'1 ().r• j _'t•·y

c~•

l- ••

t·.(.)

..

1 l

l

s _yf~ tcnl :if: currently opera tin~·;

,-,.,.,,.fo-;• 1.: ... -~ ~-l.l J ·- \.::.....

l>t'(l'•.,...'l'·!

(.)"t.. f

•

Unc.1r::r this

a pco-·

gl'<:lH ;>ny stuclcnt DLtcncUng a nc~:L[')thorhoocl school :i.n Hhich hi~-;
.- .
:rn cc is in the majority may t cans fer. to a school \du~re his rae(.!

if> iu the ninor:i.ty under the folloHing conditions: the rcceivinr;

scltool wu:-;t havu th·~ capn.c:i.L:y to hold an additional student, and

t:hc' H--to ·H r;tudc·nt mny not U:nn:;fcr to a school :i.n \·:hich tlte

iid nud. t)' rnce compri.:;r':; more Ut.an MJ'/, of the s tudcnt body. Addi-

Li.onnl.iy, t.hc :;tudc:itl: ni:Jy t.r;!n:;fcr· only to the; "n-ext closcf_;t

.,I

.. '3--

., ., . *

•. ·1

•. )

-~' !'

.,

l!

.,

i
:\

schoo.L" :i.n \<Jhlch sp~1cc is available <mtl in \vh:lch the minm~ity

race i s cc· 1-- 0 'c" t..ll .<.l.l1 /.r(). r-f1,,.

j

A p;•r:c:nt ~lish:Lt•I~ to have hin student tronsfer~r:ed Fnclcr H-to-H 1

must apply for such t1: an!.;f:e1: throur;h the principa 1 o [ tltc Gtu-

I i

I dent's nei.r;hhn:hood school. The p.orc,nt is thcii. told which school

or schools qu:d_ify 'ng the "next cloG est: sehool" to the n.E:d.;jhbor- ,
I

hoDd school. The parent m:Jy then :· ,q1ly to the principal of one

I

of theG<..! nt~;<t nr::v.n::::.;t schools fm:~ a transf:er.

I
Tfw dn.cL:d.on as to j

£ j "hethcr the s t:u<l "''t me• y tran ofer 1.s made> by th c p r:ln ci.l' ;11 o the

propos~d rcceiv·: :1g ~: chool <m~l i:1 hasr:-~d solely on \·Jhr-:!tlH:.:r the schoo ')'

has the c.n.paci ty :-md ntc::c r:s the /,0'7., requ:Lremr.'!nt. No exceptions to I ,j
these rules are m;1dc, for ex<.m:ple, to nlloH members of OIH~ fam:i.ly !

to <:tttli:nd the. fWJTI(~ receiving s choo1, if to do so would

I

I D1c minority population of the school over 40%. If the propoc:0d !

transfc1~

Gchool.

docs

not n1c·r•l:

these

reqtJ.iremcmts,

the

parent

1•

<:'
·''

stan-! I I

At tht' cornnH.'ncen,~_~ut: of C::lc:lt school tenn, every student J.8

reqt• i.:cccl to -:r~cJ).:3 tcr at hif> n.c:Lghhorhoocl s chao 1. A student v:h0

I .-:.Jt:tcnclLHr; nnother school the previous year under H-t:o· N

mtu;t still rc8i8ter at his nc:Lghbo:chood school und reapply for

i
I

I an H-lo··H t:ran:;.h~r to the school h~ had previously attended. If

I over the ccnLr-Bn of the~ year that rccc:i:v:: ug sehool has bccom~ over-

I crour.lrd or has p<!s:;cd t~:.c I:OZ m1.rk, th(~ student \vill not be al-

loHcc1 to r(::e~nf.:0r lb.(~ :ceccd.vinr; school but muflt either rettirn to

h:L:.: ne ighhorhood [.;clwol or at: tend t1.w ne:·::t avai lab lc ncan~s 1.:

schooJ.

SoJ:1:~ parent[.; d·.~r;:ii.'<' to send tll('Lr children to schools otber:

the next llf'~~n:<'cL ~;cbnol tm(lcr f'l-·i:i·.:tin [;ch.HJ·l~; in the~ cou.nty

tlw

I
l-1-to-H program, claiminr; !

I

A

I

I
J:c~;ul ts _;_n the lm·Icr I(."JrJ~....«., cl n- •···'!1

I

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.i
. !; .•

,..,
~ !
·:
those ~;o-cnllcd "L:n.·[~c·l:" schools ohich m~e alrno::t COIIlpleteJy hlrtck

and DVll:LJ rc~-:;ourcc~;, ~.:nch as !:;peel~l Lu:ts and paraprofe~_:sionals,'

inc.licatc; t:haL tho~;c tarijet f>chools receive a -T1ip;her percentage

en.:- ·l ......... \"1· ·•J 'J) ..... ~:-Pt.:-, -; -~-.:,....-~,.,.,~J_._,_: .<... ·~:--',·.'•-.•-.·,1 ,,... ",."\.,,.....L....._,,;_1,_...

_. J.\.I.I",r1' c.·•,:~:-t..!ll'~".-l--t'1.-.1.'-; -

., L·'t .,L.,......,,

•..•-.'-

·•l•' C_,'

0

1 .~ ..

,<..;

>,

·- .·-

- I'
d10U[~h ccr!::=dn rcn.dLog ·u.;BOi...l.LCP~> fen:. a.dvancccl readers arc not noH !

p1~esent in thc.F:c. t;~rgel: ::o;r'hools. Thcs9 latte:r: r.csourcc~s. ho'i;c:vec,

m:-e capab Jc of be:i.tlg wove.rl am(Jn.g schools as the need :for th~m

- arJscs. A compari.son of scleet<:-~d Dspects of the predominantly
black schc>ols in the :-::uut:hc_;rn pm:t of the county llith selected

I
j

. I

p:n-:tlom:i.tPntly ·Hhitc scho(Jls in the county shov;s no npparcnt trend :

\I

,,;i
·I

of supc:cLo ,_. .i ty among any

,J:i

c•--- of schools. These as)ccts included

iil m.'i11~ of lihnn:y h0ot:s, av<:.r<1ge numhc~r: of: yc.arB of staff ec1uca-

!I

ij

I:
!II.II

vicl..n.;.J__l_r;chool.

ii j!

For the 1.97_1)--76 school term, 96 student!:; exercised the H-to-H

I,d·,
,·

op1~:i.on;

t\·!o

~:tudc.·nt:s'

n_;quc;;tr: for M--to-·H trc:ms.fcrf~ ucn-~ J.:'ej cctcd.

'•

li

"!! 1\~: of ;\ugus l: lG, 19/ G, 27 s hulcnts had trancfcJ.Tc>,1 tmclcr the H- to-

'

l·T IH"OL( ~l.i'1, ;.mrl thn~(! rcq ll(~;; tn for such tr.-:m.8 fe.r:s \·/ere rc:;j cctecl

foL" the 1976-/7 term.

The ~; c1,ooJ :; y::: l:c'm provides bus transportation for a l l those

stmlcnts \·rho U.ve mon~ th.-:m a mile frmn their neighborhood school

ancl :i:: rr~:i.n.:Ju.n;cd hy the state. for trnnsporl"at:lon provided,• t.o stu-
dents livhrg over a uLL 1 e··.:md··a·-half from their neighborhood school.

I

if.: c1.n~ t~cnt ly provitkd to s tudcn ts -.,;vho exercise

the :t-'1-to-H option nnd nu:cnd ;l schnol othc~r i:han tht':lr nc:dzhhoc-
e:cpcncl:Ltun~:; )'I! hood r;cLool, nor ur'.' H-·to-H :;tudcnts rcd.mhun;cd for

I!
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ji
II

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. ' ' ' ·. ~

.. [)' -·

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:r

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H

Out of the t.ot.:!l. ntmbc1: of f.:.1culty posit:iotn,; in DcKulb Coun-

.i;,
ty, nppro:;< Lrn::1 tc ly J ')'/, n-.r.c held hy black teacher~; :i.n the elc:nlt~nr:al.'J I
r~chooL; and 13. o7o iu f·Jw high schools for the 1976-77 school yem:; II

32. ..t~% of t:he nci.il.y hinc-d tcaehers arc black in_ the elementary

school~:, 3:~. 17" :i.n the h:i.[;h schools. .... ·r · .tO .:L1.1.. a V.?cant pns:~·.tt·r:n

1

I

in a sch.ool that hu:;

I than the sy:; tcm-· Lln~.:- aver.:J[.t.! of blac'( sent to the scnor:Jl. fo:r::- ini:.'.er ..

hhc,l The. pc·.ccc:!nta0,~ of black teachers 5n indi.vidua1 scb.ool:.~ in
L .. lj

county rant;c.'.S from 6. 9% to 1:8. 3'% in the elementaty school;:; a.nd

from 9. 3% to 2~:>% il; the bi.;:)1. ::.:chools. Tb·:~se schools \·lith th.t:

I

bir)wst percentage of hlack teacheY.'~: generally alscl have tlw

grc.atc~;t i-'·.rP.clominanc. of black stuc1c·nts.

For J (' the f., cu] nr'I1 C'·' -

.,,._- - 1.1. - • -· I

. '-·~

- t·-.y-1;

!

at Le::;l:L(• J. Stec.J.c EJ.c~r,•, ·ntnxy f~chool is /18.3% black, \·Jh:Lle :U:s

student lJocly is 98% blnd~. At Terry Hill Elementary Schr:ol

proportion of hl.<.1.d: tr•ncherG :i.s 1,.1!.• 1%~ \·Jh:U.e i.ts stuclc~nt body is
9<°,",1,ol.)J.,""'.cl..c. Conver[; c 1.y, Ht: "r'1on f:gornery T'.'1.emcn t·ary, r.vh ere ]_2"t1o o.f·

the stuc1r;nt:s aY.'e black, only 6.9% of th" faculty are black.

for Con,:;~urd. ty ::n".rl Staff Re ln..tiorw to explain the higher conccntration of black tc:lchers in llw mm:e predominantly black scL•;olf;: (l) tce.c1teJ:s living lh;.:rc thrJsc~ schools prefer to.teach in a ~chool
I ncar their homes nnd (2) principal~ desire to havo moro toachmr•
r..;rho an' the f.:<.<me r;lcl' af> most of thr. ;;tudc.nts so thu.t the 'student~!:! have Ewrnc:one to "rcl. r·e to". Involuntary t1~ansfers are ro.rely u:::l~d to .C1lt.:cr LlJc' cl.i.::i.;iiHtti.ou of t:e.:tchc:t:~; in the individual

..,,
J:
-· () ·-

.·'' "·.

E;nul:h';.;c•::t pm:tion of 1J.'1~:l.J.b County in 197/r. :md 1915. 'J..>ll l~•L[; f.i:./11~.(~.

. m:ca h:1 s oxpc·r:Lcnccd <ln inc:r:c;:lE>e:. :Ln the JH-:·ccent<:q::;c of b l<tck stu-

.,I,:,!,.,l den U;, clue- r:o tlH~ :i nfl1.tx of bluek families ;:md- the clepnx-turc of

:! ·Hhi tc f.:·nn:Llicn f1~·ow the area. The r;c.neral pattern of transition

.:!

I
I

I

I

I limitE: into DeK[tlb Con> tty. The t:·l~.:!.fHLi_tional m::-ea has been t' ~oving

f1~mn northl·icst to ::;out.hcast.

1.. "' t-1.· 1 c ·••t1y·i na . .t"<·,'.", L'1''']"'·i""'"'

. - t:> ·t·-l] o> t'·'-1·' c8: .•'1 .<..•, .·"t. • 01'1.. lc~.•0:>

I

been em. increase i.n tiH: ratios of black. students :i.n the schools in thh; area. For (';<c.•.mp lc, the area st~rveu by Clifton, Ncad.o;;-7-

I

! li viciv, and Cedar G··. ,.\f(; (form::' d.y Bonldc:rc:t·ef> t) clemr~nurcy s c.bools, :I

h<w clu,ngc~d fl~o111 7. lt'X. bJc:ck. st:uJ.cnt:; :in 1972 to 507~ bl.s.ck ~;L:udc•:t:·,;!

in 1')75.

I
n_~j or alte:ral:ion~.; in c:lcrqentary :~chool zonc·s \-:ere iri1plt.:'•llC-"ntcd 1

in 1~)7/~ nncl 1975 ;; f:t:'ccf:ing the area covered by the ahove---mcrntionc~,1 ·
!
scl•cr)l.::. T}w prim;11.:; [actor Ji:oi:ivnting these ch:~nges 1-ms tl1r~

clod.n['. of the Bot: 1 de:r:c1·cr:;t school Hhich 1l.::td bo.c·.:1. built· on ::. s:i.to.

too sm::d.l by state nt<nl<l"Jl::-ds. The si.tc for.:.~ nc'iJ school (C(!dc:tr

CroV<.!) had been cho:..;c·n in 1969, before this court's previous order, I I I
<>.nd at a ti~t:c \·JhU.l the popuJat:i.on :i_n the entire nouth~·ies t pcn:tion

·-y ( ) f.

t1~r_~. <.

C -

(' '

l.·I,d-

f..

T••J•~J<"•

0 :J

0 u

C' "f

T:Jll.·.i.•'·-c~- .

Tlwrc ir> no claim of impropriety in

.. .
T1w btJ.i.lrJ.jnr; o( lhc lW'd school nr:~ccr;s:i.tatccl boundary l:i.ne
j

I'•·

II ton ;. u c!nckr.lc:t~ zmw. l'rior to t:he change, both the Bouldcrcr:cs t

j!
,I
:'I, ancl Cl.i Ft.on :;d10i)l :-:one·;; c:-~LC'ndcd soutln·wc<.l to the Clayt.:on m:.d

li
it

Irc.•nt:y couni y 1 inc;;.

~l'lw t·1t'<idouv:i.c1:-J f;chool zone formc<.l an immc-

I'

;/
i'

Jn J ~nn.t:u:y 19 7/~, th c nc\·i

li

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,:1,

1-- , ..•

-/-·

;,, ,,

'I.,

~=

·,

~ 1

,:.l
I

school £;one \·Jld.ch Hould be [;ervcd by Ced.:n:- Gr:ovc v7Uf3 announced.

i•

:1
It r:'ncr•':!jl;Js~_;cd the prcdominnntly Hhit::c southern_ halv0.s of the

l!, • Bouldcrc:~:·cst and Cl:i fton ~.:chool ~--:ones, lying bclmv the South ltive·.r.
1
:j
and Inten::tate 235. Host of the ltpper· half of the old Boulder-

crc~s t 2one HCJS .:H1dcd to trc~adc.:vicH, except that portion in.mccli-

,;
,,

atcly :;_un~ounclinB Houldcrcre::t school.

-
The former Clifton zone

n

,.,

'I

d

r

I

\I

!I

I;l' scho•.d. could not b0. n~.?dy :w p].;.nnecl for th:e fall of 197!!., stu-
I'

I

ilI!I: dents in the new Ccd;u: Grove distr.iel..: attended the old BouUlu:'..'-

I
I
I

I,
II

c·o.:::..;t sehool for the 19711.--75 term, accomparticd by tlw student..::';

!I

'I

lj
!I
IIqII
It

rc~s:i.cling :i.n the a1:ea. irc:ur=.diately suJ:?:oun.d:i_ng Bouldcrc.l'cGt. Hhcn the zone chanr;c: was 1;l:.1dc, Clifton VJc:-~nt from 29. G% b ln.ck

I
I

II
!II

(:i.n Jnnc 11)'/l~) lo 63 ./1./, hlack (.i.n S('ptcrnbe·r 1971~); l-Icadm-;vic·;-; \·7cnl: i
: i
froHl ~ l. 8% black to 58':~ black; J)ouldc :t~rcs t ch:wged from T'lo to u~z

III bl<Jck.

In the full of 1975, the n:::\·7 Ccdm:- Gr~ove Elc-m(~ntary School:
i
I

I
I

\·laS opened, and the area ilMttcdiatc ly nur.roundinp.; the Boulckrcrc:!~; t

!I,,,I f>chool viaS zoned :i.nto the• Cl:i.f:ton :;:one as o:t.·)<-.i·nally planned.

!I

:1
I,

H1th t!tis chn.1:_~c~ CU.fLon' s blac1·:-. population i1H··ccnr;ed fro1n GT!o

!I,I.t
ij
II

(as of .Junr 1975) to Ti'/, (as of September 19'/5); Hcu.dm·Jv:ieH c1wrc~..r
i

!I from 62'% to 6//, hlnck; Cl.ncl Honldercrest' s, now Cedar Grove's,

I block population dcc:rNtsc:d f:com ll!-% to 12/,. The net c,(fect: of

I the chnn[/:n me.:ml: tb.at the Lx·m older seh.ool~:; \·muld ncnv serve the
ij

II p-rcdorni:11anU.y blac:k population in the northern part of the an:>a,

il <> J the nei'l sclwol ~-tould service thf' predominantly '1:·7hil:n students

II
/1

to the ~;outh.

It i:; :impo~;::d.hlc to dctcnninc, hm·!cvcr, to 'ur1at

il

II extent e~u:u1ges in t:hc~ :rnc:i al composil.i.on of the schools \·l<lS affec-

·I :!:I

t<~d hy clw.nr,cs in t:hc~ rnci.a 1 con!pOf.d. tion of the re8idcn t i al are;:1:~

!\
li

!I

The:· hi.;:',l1 sclwoLJ :Ln th U; area \·:c l:t' ~ll.so !·Hlbj Pel to zone

I

('ll'll''·l"' -· 'f•••• {) . ' '

..

n ()-

,.

... :.

.I,f
:~ y(•:n::~ 197.!. to 1915. The ~Lcca ncnv se1.ved by t:ordon, t:al.kcr, nnd

(·l· c•chc•n] Ill. .... ,_, l

1.) .

c•
J ·- •.• )

TlH building of a 11('\·7 high

dnt'C(~ zorw chaut,r"'s. Tbe ncu school \·lan built to relieve ovc:ccr:oHding in Hnlkcr .:m<l Gonion hleh :;chools. \·:h:t:-dt fon.tcrly f:crvcd
l I '
sou L.:h p:: d.: of the connty. Cecl:.n: C1·nvc Hns hu:tl t on ava ;,l.ab lc l:md· ::d_j;,ccnt to the~ lH''.· eJe:r~;f;nL[,_:r:y school, and thc:cc is no n11.c,..<ll:ion 1 of impn)in·:Lcty :Lr1 tl•c location of this school.

I·11 19 71, the yec:r:c before. Cedar Grove IUr,h School oponcc1,

I

3.9% black. Co.1um:,'>l.CJ .':1nd

i
.I

school~.~ also <:lffcc:tcd by the: build- . j

of

?.•• -~~l,o d·· l1CI lL.5°t1o J t1.> Y.C1\·. 1 l'CDilCC:t:L• vc;.1y.

I
I

i

'fhc: 1H'

i

the Hnl:~c·c nnd Corclon :;;o,H~s, con:;t:r:: cU.n.g those: zones to the ::n:c:a

TWcLh of InLer:::; !:ate 28~~.

In 1971~, ac~cU.L:.i.onal zmtc dw.nr;cs Here IiWdc affectin[~ C'c'SC

no:cth to T--/.0, and the Lc:cialJy mixc;d T<'side:ntial DJ::ea rema.:L:.d.ng ·v;-c11 L: to Halker. Ccc1ar Grove 1r, zone, \\;hi.ch or:i.r;inal1.y cxten•. :cd
past: I--285, \·WR connl:cicL·r:u :.~outh of I-285. The Halkcr ::;:one ab-

zone· fre:n the Cordun zorw. Co:r:t1un 1 s blnclc. populilti~~'<1 \·l(~nt from

.. 89/,, in Sr::p tc;:1h ci· 197:3 to 9 ?.'/c, in Jtme 197/~, nnd 97% in Sc:ptcm.ber
.

19//J Over this ~; ;·1.IllC~ pr:·:: i.orl, l!.:.1lke1: '(·.;cnt: from .':l.•r'.%) ~ to /J.3% and

I

60'X, hl:1,:k. Ccd~n: Gnrv0 'f; hlack population re'iit:J.ined at ll1.-l6%

,.

dw.<.nr, t:hi~; period.

for the 1975-76 school

I

tc:rt!l ;;hcr:chy pnrt of ~3out:ln·tf':;;t: lk~(aJb 's attendance area (1% b :r :tc1~), I

Grove, \vh ;_eft

I

!

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I

,·,,

-9-

. ,.. .

I
t\ t. the:
I

,,

.;

:.; ,i,i

I I
I

l

The court canuot dctcnn.tJW, ns to th!.!.c;e high ::::choul bouw}u, y- \

lin. c.h_nugcs, to I·Jh<.J.t C)-:l:ct:.t ~-;hifu; -t.n rcs:i.dentia] pa Ltcor:n~; aff~c-l

tc·.(1 the~ r ;1 [:c of cltfln[~e in the r:.1ciaJ. comil• ~~d.t:i.on;; of the school~;. I

!
i

·I

In itD June 1969 onlci.·, th:i.:-; courr: held tlw.t defc.'cJ<~u.Ls

i
I

q.ji,

"~dJi'dl take affi.rmo.t.ivc action to discsL:.::11Jl:i.sh all ~;chool sc;~rc·-

I

~•~('·.1.'1"·.1..·. 0'J1. ::md tc· cJ:indnntc the effects of the du.oJ. sehoul systr.~~l."

J>Ji-ts v. C_l_l~~j:J:~.Y.· No. Jl9Mi (N.D. Gtt., June l~~. 19Ci9). Fu:c the~

pn;;l: ft..,,,/ yoars, the DcKalb school system h.'1s opero.tccl an N-t!)-n

p:cogr.:-<r;t, ovt:lin(:d nbovc, a::~ such <ln affiruntivc action. Althour;h

trcms:Ccrs o:f studcutr> out:cd.Jc thc'\ir :n:specr:ive ::tLtcn.dnncr.~ zones,

N- to .. J'·1 trnn.sfcr prog·;:nl!!S \H_~·.t:e giv<:n. approval by the SupJ:en'c Cou-:ct

-- in

.~. ··--\-n--~··n- n--

v.
..... ~ .....

---C-h-~:·:-·1.··r·.··l·t--l·t·-L·c-·~··-·--·-1· ·-f-·o····d··z--l-<--~-t··J·-b-C-~· c...g.....·..·---D·---o. ·-a--r-d···-

o
.

f

E
.......

-c-.-l

-u-c...

n.t
:···-

ion.
-----··

,

L102 U.S.

J.,

?G (1971):

"J\n opt:i.cn::d. nwj o.r::U·y- to-minority tJ~.:cmsf:c1:

prov.ir~ion hare: lonr; been rccor,n:i.zed as n 1.wcful part

I

of every dc~;cgr:q~atJ.on plcm. P:cov:Ls:i.on for optional• ·

I I"

tT<m~::fer of tho~;c :i.n the: majority rncinl group of n

I

I

pa·n: :Leu lnr r; cl10a l to other schools whe1:e they '\·lill be :.t.n t 1H~ nn. nnc1. ty :. u3 .nn•:I.no,..u:pcn:-;n1>1. .c rc;mcc1"'./ f·:or t l1o~;c

I
I

i

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I

ordc-J.· to lc.s~;cn tile' :i.r:ipacr on tlwrn o [ the~ :- r:atc-

I
I

-10--

• }l.

.._.·-.,__
~

,i
,,
'i
The current operntion of the D\:!Kalb H-· to-H pror;rr~.m, hm·H.!Vt~r, im-

..
!
it '

ii
:1

:I

·:

ft' ""r,. t l-• "( lllSl. -~ ,. .1.· 'I11.r·.·'",'J'. tU. C ,.. _J.c<.,.', c..·. l: ~.~Cl .

!I

II

The si:udt'nt mLwt go th:cough the same

ii

i!
:I,I,'

dent :Ln the t·;:an:·: :Ccrcc ~; c:1.wol.

i;

!qi

!I !I c:md thcJr JHLCcntn in terns of the pcnnissiblc schools into ,-..;hich

!I
'I

lack of tran[;portatJon provldcd to

'l

~ :
q

['/~I.: the t:J:ansfcr:ces to tho0c schools.

Defendants j tw tify

:qi!: ''ncx t 1· ::<J:n.~i3 t school" requirewcn·t for H- to-H trcm.s fc:rs as p:u:•s crv--

inr; thr:: ncd.ghi)OY:lwod school concept a~~ much Ds poBs ib lc. As the

11'1\'l". [~ tl-.-.t.·.l.'l·joL>·"c'.·J b---.'.-:.i..1.-.10(J' eq1.t~<:..r..l~,

;~:~:d.gn pup:iJ.(; to school::: nearest thcdr. home~;. Bnt e1ll thinr;n are

not equal in a sy:.;tem that bar:: hn0n dcJ.ibcrnt:ely constructed

muin l:ainr:~d t:o cnfcrrec racL:.1l segrcr;at ion. 11 lt-02 U.S. at 28. In
•:
i!! the h . :. ;.~nt c;:;;;e, due to t~w rttc:L:tl distribution in DcKalb Cou,,_;:y,

II

:I

il j

fer to a school \·Jhose :racial cornposition i;; only mar;.;·i_nally cHf-

!

i I

I ferent from his

,;:hoocl ~~ehool, a diffen~ncc pcrh;,_ps no1:

Iil'

I
I

II

I

Dr~fcndanl:.s ba·vc oCfcJ:t~d to alter the present pro~ram by :r:c- :

~;nll u

• •

qutn.ng tlwt a ~>t:udr_~nt nl:l] Lr:aru:fcr only l:o the ncxl: nE'arcsl: ::; ci

:cace of· b '-ly f
H11c.::c~

1n .•u ;

l'r~ •;c<· i C·•(·J;•.•!.Tt ) r.·. ~- ~

.. ' . j • T>• l~O-_ t'<\'>,;

1L.'l1. ·,·•l11

] . _r>-"1'1"

t·~}l"\.".: u''1"_1 '(.J. ,_": t.l• '(·. t... t._.. •

I

I n.-. fcncL•n i:~·; contcr~cl tk1 L thi ~~ •dJ.l accnnr110dn te the preference:-: of

du:nin;_tutly \!hite

I to L(':,n:1fcr. to the more prr' ·

I

I Jds :::·111t~ l.i.rrri.tation 1;vill

l

I t1wir race l
1_,:.tr: 1-f;rn•_c1-t :•u: a 1.. :.:o close~ !:o thQ i.r homes.

.. J J--

,.-

·'

'"·;·;;;

,......
0

~..

The purpose of th(.! cuTTcnt~ !;O'l., ~.-cquin.~mcnt, m.1·l prc::ornvbly

1

I

. . . .- I ...,!,' Lhc~ pr.·opc'~;cd 1.157, Fi.;r,u.n~, is :.ldtwl1/ t·o prt•\u;nt tho::e ~chool;.; f-r:oJ,ll

nLl.ppi ng", or. r~~piclly hecomi.ng p :c:(fr;min:·,n r:ly blnd: nchoolr:. De:- ;
I [c·nd;: 111·:: h<lVC' c i I-f··d no .:mUwr i. t:y, 1101.~ cnn Lh:i.s cou:i~ t ffnd .::my sup·· I

port'

for

or: the! u;:c

;;nch l:!n;3.t;1L:i<Yd!:

in ;:Jll H-to··N progrm!l

to

I

n~t:rnl pny clumgc in the :r-:-aci~1l compo~;:Ltion of- a school in th:u;

··~··1 Lt•..;.

IIt"(..."j." .

c: .. '. t·i, ·. 11··.··'· .,_... •. T...
J.1. .:..

.. c 1 (..1.,

l .·, S· ,.. ···) -·-'·:~

·-"1-~,·.-,_.,;._,·;

.,..

c···>l'
_t·._

.

..•L

("."1
)J.,

lr

•.· 1•.

<.)• ~1·1

~~-:~--:~·.'!.:..:

·"1-".>·.•

·l' . .. <. ... L

v(:.•.y

rc;; t: ci.c·U.on8 sbonld h(' i 1:1;JOSl.'cl upon <1 stucJcll t de;; iring tCJ

rL ( ";'\.· !
i.··lI
pr:.rt:ic:

! putc in .:n1 1'1-·to-·H i:·i:·;~nsfc~r: "In. cn:clr::.r. to he efJ:cct:l.ve ... space

,

I

EiP:;t: b:: m:.1cle ;:;.va:Ll;"blc in the chool to \·.rhi.ch he cle~::b-:es r:o~"" Ti'C''',."!

t!.O?. U.S. ?.6-27 (cmphtt~d.s added). Currently, a student m~y tran:.~--

fer only to a qurd.ifying school ,_.,here• spt!.CC is a.vailnhle, .:tncl i:J

,Ii
The cf Cect 11tay ortcn be

I

I

I

,,.., ~ lt•

<.:

I

-- n,., . on v . S.• 1 . t . . .. T •. .1 (T C'.
-· .. - -'·--~~- ··--···-···

..

'l
"·-··-c---c

<• I·.- ••
.

~ 1
'

CLr:. 1970).
)) 2_:,;._·L c~1T-. • • I\-1.. a,,f\u· g. "'>7· ,1.(1-; ()·) ,s.T1.·pop:u·1.·1.onat 2.6.

The c•ffcctivcnc.cs of an. H-·to-H prozi:<.ll~t is also dcpend•·,lt: ·upon i'

!

the provh; J.on of: fr.c.e tr::nsportati.on.

I

: 460 F.7J (197/.). .. ·1 _l\ 1:._'~l_':L_· -('~-

-~~ ·...,., l~-1-·1·-J·--0-·

:.~~- ...

_:_:

j '' :_':}

·t'

_•_.._,._..

j :._'

·...r~·:•:..~'t":.

)

1205

The.lack of trans-

I

port:at.Lnn for t'.i~<l1!:;Lc:-r·c:c:; u.nclcr the pn:~scnt DeKalb plan forces

I

of' " .., ·l l) to dwulder the burden u.•-'-

II't~ 1j ";·.\ ·.·~, ·).""

t;.t.1."'\.."_;}. '1.L'· <v'

cd.imi-

I

I

I.

I ~>:~·-~:1_~:-J_~~?.~l, ::tl_l?_L:_::~, 1; CO F. 2cl ar: 120·1. <mel, :i.n fact, n1akes i t impos-

~:"i.ble fer :;omc sr:uclcnt-s to

I '
I

i

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I
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-·lZ-·

~

I,

t:j> ··.·~

.. ~ .... ~iJ

~

Dcfcnd::iuts

: . t~c

-
t:r:•n:;portat:inn is :r.·c,ptircd ,- t:l~c

~-~ choo l

i I I
sy:; t.1 ·:;i,
i
I

po r~t in g

Lo diffe:r:r-nt f;chool~; all ::Jct:~.)~;s tbe coun-

1

ty. :~efm:L~ it is knoHn ho':·J ruauy s t:u.dents HiLl_ part:Lci.pa.L~ -Ln a

I

I

!.,I
rcv:L~1 cci lf.- to··l·f pro;_:;Glill, ho•:i'eve1-:-, :;ueh fe·ars are purely speculaLic

I

_j

a gm.l l'T.:J·.1. ohJ· uc t·:·ton t·:o any

I
I

wade by this court .Ln tlH!. voll ltarily-·t:.r.~tabli~;hed H-·to-H p.cogrc:.~n. i

Dc.f£:ndanl:s lllainta:Ln that they h:1.ve complied t·lith. the sl·H:--c.L4tc

I

mandates of this court's 1969 order D.nd arc nm·l opera tin~~; a uni- iI

I t::n:y school sy::c:tem. Therefore, the couJ':t :ls ·without pm•JCr, deL:.n-:

dan;_:s arr,uc, to make D11y chr.tnr;r's in t}Je cch()ol prog:cam ·t-:hi.ch <1.c-

=I
'

compl:l.dv~s the intentions of the~ prcv.i.ous order. P l ('. _a_se_.<_C_r·_ •..:_ l t .._ j:L:.·.v.!_

f J...n.t1J..ll(j tn'L at defencl~:::!:s

tiuncd c'·. mges in their H··to-N pi.>Jgt:<Un. The Act, \·7hich cmrhD.si~c~~;:

I

I

'~ ~: t·.l~ that "tllc; neighborhood iu the nppr:opr.i.ate h~.1s:Ls for detcrmin:i.T1!!; I

p11hlie ~;chool nr;::;:Lgn.mc~ilt::.>," ~0 1f. S.C. § 1 '7 0 J. ('b) •. . u.., J.. • i ·' _ t •;l t·. c s

__.<•l.·f·.: 1.

lfi'Jo court· . . . shn.l1. . . . o.nlcr tlw implementation

of a pl<Hl. thctt: \;nulcl rcquirc the trc:msport;.ltion of al"iy-

studcut to a ~;chJol other than the school closest or

next clo:3c:; i: t:o hi:: place of r:csidence Hhich provides

SIIC'h f~t-L•dCJlt . 11

iP Lt.iHlt·d to Jt:od i.fy oi.· di illi 11 i :;h tltP anr·JwriLy of t·hc courts of' th(~

--13·-
.!-'

.. .,' . .

to the Con:_;titution of the Uni.tcd Staccs." 20 U.S.C. § 170J(h).

i1j1 \·rc·on.-Ju.s, the~ sco1l1e of which "i.::j broad, for breadth and flt•:dh.i.li t·J.t
li

In. analyz·i.ng the intpncl: of Uw Educ.:tticn<.J.l AcL upon the court's
1 ] •·l . C·'. • ,.· 1 r..:( t l1J•~,._~.~ ) .. r:~ j'·'·;..··.-·r.t·;··.r.·.·,·,, L.l(; }.!.'·L' ..l.. ,,.,,1.. . .•.1.Cl. ..Lf.· ·,.·•.•,.~.o...,..·C(J~
~ 530 Y.7J 401, 412-11 (1st Cir. 197G),
~ !
"By cxplic:i.U.y le;tv.ing the d'l.stri.ct cc.Lu:l: the

pm·.rPr.

to

dctccm:Lnc

the

c "' ;ich(p:taey

f: :t· ·: 0 •

"'"'u.1 • ., it L -....

J. •

J , - ,

t l r " '\.,~

Act necessarily doe::; not rest:r::J.ct the breadth of

di~;crction of that court to determine \·:hat scope

of :n:r•1C:>d:; i~; con::> i:itutionnlly rcquirc~cl. Thtts tlt.c

Ac:t m;:;nJ.J:-cstr. its ptu:·pose not to l:Lm.ii: ju.d.i.e:i.r.r.l

pO\·!C~J: hut to gu:Lc1c r.ncl channel i.ts cxcrcie(~. Tn n

fjCl~:--;c: i t in a ~;tatutory 'less re[;tr::i.c:\5ve means'

guideline, cndcnvor:i.ng to cn:3t.n:e tluJt subst~Jntial

contc;nplaLcd by Uri:; cou·n: do 11ot: involve a prc,grc_-,rn of f(n:cr.d

t·o , A '• l ,_., f''C'1r \.,_.;.

,)_

~· '\...•.)

_.

<.1·'·1~ .~...{..' 0'\. l]_'(·,:.;(n.:)'n-.

to tran.:J [C'T to ,:-1 ~;,'hool i" ·uhich tlH-.·i.r race is in the: minority.

'I (•.!' 0

. (•ll~.1-Jn..->·

•. l
1..

'~-)'

ll.-1I .'.f..'. :~; chool system op(;~J:ate:s

1. t:s N- to·- H progra.m,

th.'s

t .i.on;Jl

. r.:h:Tf: t.l1c pi"o[;ram 'irLll provi.dc c<ru::l c_d.ucD.·-

\·.:ld.lr.~ hclDinl.,. to eLhnin;~Cc the vc:;tip,e:; of

..

(.,J

'"

- l·..fo

\:;), . .

.c.

l.

l.

l .

.

.

.v. ....

.

.

.

.

.l.(..c·:.n~..i.....:?...;

.:.)...n.

..

,

"·•I'
'i

. l ': ..

...

'fc;Jche:r: A:::d.!:t:1x:.nl~!:;

,,

··--···-· ···-··---- ---- '.L. - -- -

d 'I

Tb:L~-• cou:rt hc~ld :in :its l9G9 o:cclc1: thni:

"l~ace or: colo;- ~;h,-:lJ. not hen f<·lctot: in Lhc

h:i. rinp;, :lS S igllll'/~ Ill.: , rca:·~-:, i£;J Jilt(' ll. t , p:r:Oi"<iO l: i Ort, CC'lnO ·

C':,;:ce p :- LhaL t·;_;_cc 111:1y be taken :into acr:ount for Uw

I
I

I

purpr):;e of ccF:·: .. ·)·actin[~ or con.·l'~cting the cf:fcc.t

I
I

of the

faculty and staff

I '
!

:i.n the oli.l dual sy~;tcm." (Slip opiu:i.on at 7.)

I

·c·c' t- ·'·· l'.'llc·_·.r.·c._•. ,iI

I

shall 1JC' ns~dgnc~.1 f~o that more than one teacher of the minority

I
' '

rc..._.,,,_.t_,~_:. ( v...:1Jl..•L·'t..el o1." Neg~o) shall be on the Jcs~~rczated faculty." Icl.
I·I'
!,I,

1nr•nt. Ho:;:;vc~r, the court also m;Jndntcd thai.: the
"Cotmty Bn:u:cl [~h:.1ll cstttbl:i.sh as an objcct:Lvc
that

a hc~"lV.J' eoncc~n(:r:;, tion (l. e:i.thcr Negro 01: \·7h:i.tc' pupils

ii

:j
!Jli

in tlH~ r~chool

(and] shall t;~kc step~ t:o assign

!,I'

staff

:I

\I

Jncr:tbc~:c<> to el:i.ndrw tu the cffc•cts of i.:hc dual t .c, ."/ "•""'> (-~Ill .. "

!J

II

( ,S._,_I. -1·. 11) u- p ..i..l ·1·i.. u·.,l. L., t•.· uo . )

!I

. The court find~; l"ha i: LI I(' t1(2:L'r·ndnntn l!n.vc not taken aclcquatq s. teps

to uti.li;.-:r~ r<';:u;~;:i.r~nF1c'nt of t:t".::.chr.::rs to rcd.ucc the racial i.dcnt:i-

fi...CJbiJi ly of LJcMlty l_ t 1 o.ceoniancc~ ui t.:h the s t::mc.ld:rcl set out in

n:>r:J:on v. :c.•'!•. .,

-- --- J;1el~;;n11

. l·~r''l·i.c

-

....

. j

!--J

nl
.....

--

~>p:n::.1te

.

-~--

~(J'

c.:·.·l1cJ •o~.:·1.:___!')__

_-·_, _._<~?·

t--,-J·
..•.. )_.._

·.c._·:

.,'._. :

.

'

,',I
"

In

I
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that'

{' ~

. 1•

,.
• >

I

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j

,,._

.'. -~ n :_ ./•
.. l r; .

h f: t I('

•.

~ .... _

(;~~·

De· [cJu.!rmt s ;_1 :;1: tltat the court~ eowpan~ the L::.c V; ~in Lh1.~ .!u:: t:.:w r.:
I

,.,,

;:

lt23

F. 2d

20~,

?05

C5 Lh Ci.r..

19 7 O) , \Al<.'rc

the col.11: t

fonucl

I
th r::. s chc0J

~·f:

raeJ..n 1. r::1t.1. of;

J..n

.
J

;·1c1.t•

V:•J.u1 u;:

'11

Gc1noo.1::;

t·-.:·lL' J..VC

pt.:.:i.'cenl:lt_::;O poJ. .nts

h.Lgher. tJwn thr,~ 'i~nciu.l rDtio of t1w ent:Ltc ::;ch.Gol syster.l. \·Jlt:i.lr:;

te;;chc:i~s nt ::my school be m.::d.nt:aineLl at <:Ul cx<:·t.ci.: c:-n:bit:c<.:cy :c:,_,_~_i_al

Ll.i::i.o,

........ -..... Hn:U:c~<l ~){:;li·c;;
-·~·-·h·--·----------.-

"~-T·. ·····H··' '·i·-"l-c'"'•h._____C.. n··-u···n··-l·:··y: ··-:C---o--m..~--:~d--- ..of·----E----c--h. e·• ;-•-t·':"i' u' •.,

l:f)!,_ I•'.

/.d 575 (5th Cit:-. 1971:.), the cm:-rcnt: /~0-Lt.B% of hl::1ck Lc::chet.·~ in

som~~ of the~ more prcdonri.n.:Jntly black clcmentz-n:-y schools doE·~; not

CV('ll ''approxhnate" th<~ 15'/, rJystc:m-w.Lclc :catio. Sec -C-~·;-r·r--.-i·:-e--1-·:----· _v.. . .· He!;.; l'

A sitnificc.mt: rea:;on fo:c the Hide cUspad.ty in t·he .J,.4....c.-~... r,..'.,··7' ' 1

ratios r- nnl -r ·rt DeKalb CounLy i s the rei on (.'.....J,.!,,,._.J, l'l. 0'l' .....~ ..

r: (' 11)

c•

k • ..... _ ...... , )

..1 ••

icllJC(~

L f :.c~.

;_·vc:n

out the c.l.i.;;i.::r:Lbul:i.on of faculty.

'. 1. '11'' -~

( '. n. l · tJ-. · t

.f·ir•d ...... .c. •·"')

tl1··<..·: lt·

t1 J.

·1·,7L

0c•

,· J".'.>Lr·.._r. ·1l.

;I

i,,
"li

CJ( tcnch.::~n:; nwr:t br.> Ld:il:i%cd to rt!<:<kc Lhc racial ratio of the

11
I'

I!

:I
i": slip opinion nt: 23. i,l.
,I
,I

II,,
I,;'

f..,..U.....:-r' n-.d. --:--·:-n--c--c-·

Z-O--l-F- .!.

.

.

.C..h..

.W....';.')

\~ ..

:-:-

q

!I

I;

;,

.. .

I

I

I

"['J']o t·h(: c>:Lcn 1: ccn~;i.:>teul: -.;d.th the prupcr

I

I

. .,.. () C :J. l: I i Jg

. ( l_,')~i i.,'.·,',l J·.11;.'~, ]:<~·\·T · ' ,,_•1·1(l(·l·l <,,' '

(';; i};l::i.n?, h.<· i. U t j,· -· :n1d in ccn:.:o l idnt i.ng ~;chool:;,

- !_() ...

--~
'

·;
·.I'

Lion nnd pc·.t:pc~Lu~tt:.ln~~ dr~~~cr,rP;~at:i.on. ''

n

::
,•,'

·I

l ~
:.''

cou<:t by tl!c D.:~p::n:Liltc'Hf: of Health, Educat:i..(Jn mul ~·Jclfat"c, that

!! th<:; "Dt~Knlb County School Sy~:;tcm, j_n :i..ts r.cspo!::sc to racial tn ~;.-

t o I

[-·~ :i ti_t:)l1;

·

.·i

!<
(..

l

'

J

P

r-·

c

:

!.

.

.i.t:;;

J:C.<-'t")O!i.S ib:i.l:i. t.·1·

·1ff·t ·-r1·1t·i J': ( '"'~

,..1 0

"~·r:

•' I . • • • I

. . J'>

!I
HEH R.epc.n:t, aL ll.

by de::endn.ni:s h;_..ve n~!-:ulted Jn racially identifiable school?.

Defcnd<.H1.ts counte·c by statinr; that the :Lncrcar:;i.ng nurnbct: of

1·.· ,··lC'.I·.:l 1..1..'y .··Lr.l C"'c~t t·..·l·..lr.:-.·j..·.•d1) 1... C· ,,., 1..'1 lOO ].. S·

Cunnty i
·, bo;::rcl, hut hy the.~ 1w.t.:cu:al porH1lati.o11 trm'!~d.t:ion w~d.ch ha:; or:.:cnrrcd:I
]I
:i.n t:l1c rc:d.d('nL:i.al !3ect:Lon:; of tl•.:li:: are:1.

t·}1n·y i""'(l c-.;_ ,·,,·..)'\•.-~.·,. [ ~11_;·:.•'· 1• ·1.c".1\. /.•_l.l''·i.'J' .~-,-•-,l,l",",-]-·<··"'I.tI'.(.'.)'r.•• t.-.:

~t··~}"..'.. -,,#''

.'j. O:;l~'l9

(

1""P'"' ~' 0

..~',".,"~J,"\;":"-

V 0

'

'<l•' L•·•: i. (.'

\

L' 1

(.,•_r_ tlt_ 'l.'.,

. . . . ._.

i;
't,H·:,

I y - - - - - - )_n,,...r.Lc···..L,Ar·.1•"·-~ ll.'l-...·:·J -.L--l,:.-.:..] .

'\~.'lJ 'Ol.l ,rJ\..'7c":.D. f'l..'

courts m:c cons U. L:uf: Lon :Jlly 1:-cqtd:co.d to make

t:i.on of r;t::tu1:>ol: bod·ic:r] r;i.ncc the nf:f.!_nlw.t:i.vc clu.ty

to dc~::c;-~i:cgnto has bc~cn :JceoPlpli::hed and racial

d:L~: c:rirt:i JVl t .i.on throu1)1 offic:i..:1l ac r::Lon is c l.im:L-

Thi~; doe::; not mean that

- .;

fe:dc:r.nl cm1rtn arc: Hit:hout pm;rcr to denl u:i.th

f:i .< m: nltc1· dvl!:n:'Y;~·h i.e pc:tttctTtS to affect the

i i (','I'l.-·I','.'(J'-• '> • 1·•. r~n.

n F•

J.:1• ,<,,\,.. ,•

<.._..

:

c-

> J

lI

•

c

)

(

).].

"' )'

)

f._t1T.,t·11 .,. l ~l",. l-, .l..J1 'l,'"·'-...· I·. ..

··1/--

,,-.•

. ~

• >

...

VP.ntJ.on hy a dJ:; Lrict com:t ~;hould not: be nccc.·:3 -sary."

volvcd the ~wh::.:cqucnt intcrprcr ation of ,-t clcsc-g·•:(~gat:ion plrm PilL.

en~~d hy a di~;l::t::-ici~ yottd: :in 1970. The ce'm:r:t-·approve(' p] ;n i:(~--

,,
., ·'·'

C1it '· -!1-f.."<.l ~L:t·t,n_t·~. no t.: c:l1Ch.\l hn.ve a m<·.t. j' or..1.'·l--.:j- o.f. nh-1o~···'"-·Lt"J· L<· >'·lt..,d·',.-,,' tt.·-c··'•

\!:i.i.:h·

, c r c .i.t,

:·Ul

1.'.JU

yc:.n:r;

cj· t,,.

1 l

·

' l

.)

.C-'

y t:· .' t"l -.1~.

Jl.r.: t·.1.H~ (Y.C1 CJ•.,

~1ttnn;:•~S :•Ul t"1lC • 1:L~inJ•.1 ·il 1.::l•..:.t 1...

I'!I

li!l pntU''!:ns in the ;~rea Cc"•.twc:d some f:chools to hav(~ a hlnck c1iroll·-
:f

il ment in <:>xcer;s of 50%. The Su.pre:n:c Court found that although the

,!,I

~I school system had. not yet a.ch:i.e\red the unitat·y syr;t:cr·I contcn:pl.si_:ul
I

,i.f

"~': ~·: ·k l '.!.']hat docs not undercut tlu~ fo:cce of
the pr:ii1c:Lplc underJying tlw quotc~d lnngu.:1ge from

Jn thi::: CD~>c the D:i.::;trtct: Cour:r: approved a

pL;n de:d.gncd t:o c~d..:ai.n :r:ac:i.aJ. neutrality in the

1.·1.0 OJ, ·l.C (1·:·J.,.·,p1.1 f~--c·_,, ,,... 1.·'tl·di-· ·L· ·11C. l•.lL·i..r.-.-l·.c.,,. J ·l•lllp· 1_."u.·,c-' .1l t·_,_".. t .·LO·t1 0 f.

the ca~;c, thr· TJi.:~f.·r::i :-1.: Court \·7n:.; no!: <~nt; tl.cd to requi.rc thP School Di.~:tJ:ict to rc.:1r:r:<::~.nge the nttcn-

racial mix rl~~ired by the court was maintained in pPJ~pc,~tuity." Id. nt 5117.

went eel, chm,gc:::; in -J~Cs i.dcnU ;J l p:.:ttterns and resulting sld.fts in

1 I 1 J'_/ ~;clOT. o1:- [ • • ~J.c::tn '] .~;,

tnL en. It: is

r'cn· l.:11i:; :r:cd.':Cln th:tl: Llw c!.i::t1:-i.ct courl: .i.n P<1f:odcu,1 \·:a;: fos:bi.ddcn

.
--

tl:mc·~ ] inc:; mndr~ by r:chool off:Lci:.d.:;. Tlw ~)uprcn~(~ Couct: tw:; held
..
;j
! that
"·:; ·:, .,., [i\] ny ;rU:cn1pt by ~;tnt<:- or loc.:1l offi-
!._!,,

accor:cUn.g Lo ulwi:hcr it h:Ln.der[; o;: fnrl.lwTs the

pJ~occ~; ~; of school de ::;cgregat:Lon. If the p:ropo:..;al

,.;ould impe.de the' (Unm.:.lntling of a dual syt: tc~m,

then a district coL1.:ct, in Uw cxerciE,;c of its

,,i'

rcwr:c.H.al cl:Lr;crction may cn.join it from bcin0 car-

: I
I

!

i

(_)_ -

f__._·______r·_..'

1_

't___.l._l__'_._.__l_,._i.._:l__c!~_-~'

1·.-0 'I 'l] • (..J' •

t• ,

0
( J

f,r

1

;-,.-

0
U

n'J

( .'l. (/'·;··'.I. ) 1

Cll.l() {"1... • 1'--)- bn·

(1071).

,.
:j
I•·'
il
i1
!l

I,I,
!j
I·I II,ijI,'

rac:u.1 ].. co,;·:po;;..t.t:.LC'l.

'fh:i.s court must look to 't·:hetl.1er ,~-; UC-h l1C)1_·;'-'1• r.l.r.·.'."l '.IIT-~ !
l
I
I

:; chon l ~~ . OS: cotn.·:~c, :_:uch :i.nqu:i.-;7 c.::mnot ignot·c the rac:Lal t (' [[',1-

I
i

il
I1'I:

:_\it i.C)11

I

I

~ny zone ch~nges.

I
I

I

I

I

I

'L. 'h. t'.

c r t- 011 ....

.. ~

P n. . r .'··' ' •~-·

u , ' 1l -, .,.. 1;.-.- ••..;

.

i:hi:-;

ex:tHinat-Lon

<lcr;pitc

its

fincli.ng

I

!I
II

. th:Jt

bOtii!Cl.~lTJ''--J.:t. ll('

ch.: 1 1lc'C:~ )

t
l!l.OS i..: part f.:O HCCCli,:illO·-~

"'I
'I c];~f:t:
!I

• '1 .•[ li J.L-~ . (Y. IJ·\..'..' (_)'\j(~">-)·'·t'•-·•J-.·\·.~~J·.·.,.\l-lj. ll (\'J!' ..

:!
,!,i

I
I
i

jl

'

ti.on" of 1 system. h i ·-· '' ·1 (lt• " ~;ucl1

:tc{·:i Clli

( ;,• 1.

1-· • <'~'

c I· i •.r 1 ·1 t'll't • ~ o..:) ' ' •

t .- .• ~ - (•'

C)·[

4

• -

'1
(

•• t ..

"The

('
OJ:

an act'i.on that

--19-

~- .
.,
I
~~
,:,1
I!
,;..,,,.'
l,()"j U.S. nt ltG?. .

..,.,'1 ''.']'f>l. . y .i.1l u" t-:J'·1·.i.t-~ t.~c.:-r; l~ t:o LlH' .f'.".'':-t..·_s ,·t~·,· f'cJ· tt1·1d l)y Lhc C:Ot.i.Cl, i l
·: ..,f

.;

:'•i :;

\·h:'!:~ L: Del~;;} b had :~ OiitC effect upon the pc~J:pc· l..u:1. !~ibn of a dual

.' ,

:j

Sn:r:cly l:bc. :i.nfh•.;-::: of blnck L:m:LlLc!~ 2ncl Svl'i"~ o:r. t 1H: 1. LlcTease.

1· 7. nd tl, '' o·. tll::· .,. '"~'t..,. C>l"1{r.:r,

~··-

0 ~::)
.().

c'1..

.

0
l...._ a..J l.L

-~. J.1'-.·i- .\'-.~_, J.'

F' ·: i: h<1.ve cont}.:"J.lJutcrJ sorne\·That to this dramatic inc!.-C<l.SC.

t.i.on1tlly, it 111l1St he ~;;:1 id tllat the total effect of the ho:d:·:cnt:_!]_

J 1.JL'~'

1. .

'"(
).,!

,'
...

!c

"."r.\J(

__'1...11'c~....-.;.> c11.1·.··<··Lc•t.-;l'l

AJ.LJ·,t')tt~;h the; :;chool bo.Trd' ~> <'ce:tion;, may have h::cl tlJc:-·.e rod>

[c ~r.\ i~s,

dr:c!.::;Jon r:;J~;t alc;o be SCl.·uti.nL:.ccl in tTtl~ CCh1tC.'.l:

of t:hc·

ru: (] c ti c n l j t y () f :: vni.l:!l1 le altc·nwi.:.i.vc~::. Ft)c :Lt is only tlw ~:•;:·, i I·

nb:i :U.Ly· of inm:c
,,ij,,

coul·:;r;::; of act:i.on

expLd.n ii~s

!II, pL·cfcrcEce fen: an :.'pfLJxc:ntly less effective method. 11

Ccd :-LL'

Gn) vc

1: i. me~ s-LL:e

U! <' ~-: <:· n.l: tend; u11 :c had ;1ln::cdy been

'r-1'()'!'1'....,_

c;1\.1,''.1. 1r"n<"' ·t.._,.,_;;.~-,

,.,---p·,~c

1"''1e t· l1
.. . "<.J.\,.

1

•

1
~

•

•·-'·

chosen, mH1 the choice uas

t~h :.~

COnt-

~ J\

,

t'')'

~:cl1ool,

., o r u :e ,, ,,....,~ , , , ,:c, l, 1: ~ 11 ~-·, •
>!

I ;

{ ; : -~ ; ·. ~ .

..
.I
Evon so, pLd.nf:i ffs, suppot::t:cd by J!EH, eon ten<: that, ri.VL'rt

....
!. , :

C,..l'..d1..

.-U· 1J

,

,<J-

,l ....L·Jr. .:L•d,.,U_J•. .·.lJ·_l

·..

,,
>,

0 ..f.'

lr r'~,TI 1..•••,

·c>o

.,..
I.

C,J•..)

()

J

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t: 1
. ~

(

l1l''1'....

1 (

1i- . ./.. ,..l..·.il- j..~.·~.- .c•·'

:!

I.Ic"·7'l •n.·•_rc.'v·.L. ··· ' I·.T... J1\•'rl,."_... ·;··'·-,-,1"..,01·'-t'.· fn:i ls to con~d.ck;:: Llw (~:;.::L~cl: locatio~1 of Lmd.l:i.cs south of I 85 c.:•nd the South H.:i.vc!J:. For vl:i.th the exception of the' prcclom'.· ;:-•nt~ly b Jn ck Coun t:y L:i.ne COi1~~t~t !!.' i Ly, just: uo:cth of Henry County, mo.· of

n:::!;cu.n. or the: school .
lnr·.atian CJf 1-'iC'Ucl\J•:-JV:i ('\1, ClifLcm <uHl C:c~tlar G:covQ H:i thin tho::;r.~ pat-
t•-(.\.I.-11.•"> I (l'f'J '1.. )'
>f hn.ve 1:-csultcd in 1 on~ .C1CLJ.lly b;tL:nccd schools.
'I
i' "I'
'·
\·:ould h.:l\fC! bec'n 1'/'Pc:-,:·:tlly :inpr:.-~.ct: i cal. In l:Lt~ht of the circuLt-

si.Lle.

tcw~ \·lith J'c~:;pcct to changes in high Tlw location of the Cedar Grove I{i.gh

1 J y c.1~oi:t:•.11;".rt I.: .. 'df1l.L• tc:. 1 :;cl1l. (lO ·.1. .lCC~liJ.::c 01r. tn1 t! :r:ncJ• .a ·.1. composJ•.tJ·.On OJ,.:.. t 1c popt~l. 1.t:i.on :>1Jl.'t:'•)!_'n:li.JJg Cc;,!:'.·r· Grovl'., nncl t\·JO prelluD:i.nnnl:ly I> lack

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;;

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l i.11c s ,

by :~

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V
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."... )

(

'

:~ted

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., Plaintiffs <.:wl IIi::H, hm·tc·,rcr, nlso ccnnplain about.: <..:C.'):tn.in

<Jnd LIH~ <T··ca had been :r:e:..-:onccl :!cconlingly. A~ t6 these chvnzcs,

t.h. .C.' ).· l-• '·-; .., ) l···, n.. '• q..-.

..'

·;

...... y hc::.v:; at: ·~1] f, ·••

,1,(1 £;.a. •

<, ·1.e,·I",(,··rl'·.1>{·,..n~ ·lt·,c,)·

}

1''\
.(•w

f

C-~'

Il(')t·

•

•

(·~• < t1I. •" •qu·(;;"" tlf.·~o]•

1l',.1\,:.n.., t-_. ''"· ll('•

hu:cc1c· cJ

O

.r.
.I.

e>~.pla5.ninr;

the

alternatives

cho:-;cn ·Hhich

tcn<.lc:cl

to

hin-

(.:. .c.-~.·-- :

.J...c.·,.t!.·'t'::...,.,...

1.·.'.·.,1.,.1..1.

rI.71 1

···I
• •-

1'~···-·-..1..-

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··r·rc• '' '' '· ,~,. ,.(..."• '~•...

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1 ;

.

-·()rl.t. .i.. i'.).t.·l •

s · ( ,.; r-· -· 1 ·• .. '-. 1) ~~ (_..J. • .•'. C-~ ( l.- J. j'"r '

.Ij ·.,I.

• 1

.... \.

,/ .- t,

. - ., J'

., 1

:Ln lh•tuccn goin.z to Hnllce1:. h.:td the~ effects of (1) inc1.'(·:asht;; Go~cc.lon' s nlrcady- predominantly hla.ck. populat:ion, (2) if~olatl'ng

the Ceda.·.c GJ:ove area f:r:·om the p<;th of residential tran~~ition,

'iJ:i. tl.t \Talker sc~rvint; .:: s a buffer :?.one~, and (3) helping Halkcr to

! I

I

tip ovr·.c to a p:r~cclow:Lnantly blt.lck school.

Defendants ju::;t.i.fy the

i
l

Cc:dnx G.:. 0'-/0 boundary chm1ee by dc·mo1wtruting thn.L. 35 out of /!3

:; ttl\..1 c~ul: s J. c.:F:oved L:-or.n Cedar Grove as a re::~ult of the 1:c::;::on1.n;, v;·c:t:c

\·:I1 i I: c. .

.'./..(.' L'- ,

cl.r__·; .f..E:,.l...lcl-·'·'"•- n..'-Lc•-·'

tl (' (-'Oil..]..

• ·.1. t'-' <~. ,r.l. ;"

U:.:m::;·;.i..:i.on <nHl \·!ilG bccorori.ng i.nc:r:~~ad.ngly blo.ek.

:I
;I

:1

AtwthcJ conu~~;i..:(:<l bound;rr-y line change occurred in 1975

'i

or 1:
I ulv:n po.rt

Southucst DcK:-:lb' s nttcnc.lc:nce .crn~a \1as ;-:o: · ·J into

!I

1,,

. Cec1:;r Grove t:; :n:li(::V(~ ovorcr:o\·Jl.Ung :Ln SouUn·;est DcKalL•. The

i!

1ili %:On<~ ch.r:ng(~ split a su.hc1Lvi;;:i.on tlti\·m. the middle o.nd created t:rav-

1:
i
!! olin;:; d:i.;, tnncc:-: of up to f:i.vc-·:•ud--a-1vl1f miles for son1e:~ of tlu~

:i:i;I
1:C%(lllPd cilLlclcc'n.

JJEH points ou.t that, like Cc!clar Grove. ColuuL:i.a

d

.. ..

.l

ll

;j;1 \·7;J~; aL;o ~1ndcr. CDl'n.ci l:y <mtl a l:·!J·:-_-;cly Hl~:i.te ;:u:-c:1. betvJc.c~n. I-/..0,

;1
:i

C:m,; ·1 t:r R();;.d Pnd I·· :Ui') cr1L'ld have been rc::~onc.~d f:cofil Sout:ln;rcs t

c·1.,.,". · -1 1 ;,.,,,J··c.Jr. (·1

c ' I J.'. I I ( J \_.:

\·.'(1ll.,

• •

.....

Jl.,~Je

lt. <....

•

.i. [ L!~ "-

\.,.:..l ...

\.'tl11ld Lc· 011ly L>:iO· <.i,rJ .. (>-h:•l.F nrL1C':;.

'!.''IH. '~"i .-.- ·f. <. n·. c·. '

i· -l l

("...r·,..

t·. 1

r· p

t·~ c,.I,·.·,t,l

L•·

to

-2 ?-·

...

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'l

1~cli.cve ovct:-cro;v·ding .i.n one school, ckfcnd.-:mts L.d.J.ecl t:o chou~:;c

'l

::n avn i.lr:1h J.c .1.1 ternoi:.Lvc ,.;hieh ~-;-ould have .:lJ.so furt:hc·:ccd

] .'(' tr,_r,<'11-- .·j' 01.1•

TitcTc are t~·:o p1.·oblcms \·lith a f:i.nd:i.nr; by this cotn:t that l:hr.

ebovc hounch1.ry chDnges had the effect of ld.ndex:..iJJg the pJ:-occs!~

of dc~_:egrcr·;;-J.tion \·J:i.,th.i n the men ninL of ~·!:..~!.:31:t_t, ~uv~_<]:.

ti
:I

. hcc;)n:;t~

of

Lhc

rnpi.<.l

P!~.:irlc-.ni: i.nl

u:·nnsiti.on

occurring

1 -}1,~0 _ ..._

'L1<,c....~Jl-'·

"~
·''\-

Li-.·

t:rLs section of the con;ll:y, <.i.n<l affccli.ng the rac:i.<d. rati.os 0f

.i·f,'

~:chools :in \'Jhich no zone cb::nger,; h<.t\.-c} been macl~, i t iG impo~s:Lblc:
!,,i

!I to dct:c1~min.c uhether the zone d1.Jn.ges in question actually c±c::el-

,i,l

'• crated the~ transition at one extreme, or '\·;hethnr they had litt:lc

I
.I

,!.I., :I

r· ...... o.._,,_, on. 1' J 1 p -')r <'"l- .n .,.....l.:.t•• l. 1.-o c ,, ,, ('~JLr: .:rc,...,....L•.,e!~_...,t.lL·..I..·il.__ t·-J.·,1r1.'',1..L'·.i. ~

The second prob-

l,!,
,t!,

] em :is that cvc.·n v:re1:c tl~t'~ cou:ct to find the former to be t:r:t.u:: ;::n.'-1

"!l '•
ir
:j

11
~ i

.I
:t be rJ':·rd.-n:;lr.ss. Tlv; rw·_i:ec!nt;.l;_:;(~ of blDcl.;:r.: in this nrca hn.s :i.:1-

mmld lu.l'!C to look. bcyonll wc.-r.:e a 1. teration of sehool ;;;one l:i.ne:> in thr-~ m:c:t schoolr;." HEH'

1.l:lvt: 1n.1.c1

of

J.c!>cgre:~gaU.on

in

tld.s

portion

o~
' .

!kKolb Cott~d:y, the c-icl.: ton~3 of Lhc dcf(~ndant:s in making those

Th(} c0ur t doc's ,;ish

" .
flo·
·'
a biracial committee \Jill be c:;tu.h] :i.sho.<l \·jld.ch \·ri.ll, DS pare of its fun c t::Lon r-:, approve! ~:nch %ouc chnngcf: and school :d.tc pun.:h~'s c~::.

203, ?..07, n./} C'it:h C·i.i·. 19/0).
il
i.".i

0 RDFR

I

.I

~!
;I

lj

Fo:c the foregoing reasons, the: court ltcrcby on.Dl~US that::

II•I

'I
r

(l) The H-to-r·f progr::m be modified so that <1ny stuc!(~ni 11Iay

I
:I ,

1T<'tnsfer from n ~;chool \·Jhcre his race is in the majority to ·any

!I othe·r scl~ool Hi thin the cou:tl:y :i.n wh:i.ch his race :u; in thr::~ minor--

,:
:l' ity. Space must he made available in the receiving schooJ.s for

.,

i

il

•I trc:msfcrccs '\vho slw.ll be t:';ivcn p1.·.i.ority for space over oth:.:!r nc~·!

!i

:I
"

i.::tuLl(:'>llt~", but in no h1f.d:ance :;hall a tr;msfc:t:<::~e displace D. ::; tuck~nt

il:; previously cnroll.ed in the receiving school.

(2) ~)1.1eh H-to-11 t:carwfc'r:; r;hall be effected by <:w ~-: i.mplc an

;::cJr.rillif;tr.':i:i.ve pcocC'rhu:o <J.i~ po~;sihlc. The school sysU~rn 'dill pro--

vide l-I-·to-H tr-.:J.nnfc:-.r~· f<..n~ms at tb0 :;t:udc:nt' s ncighhorhood school.

'J'he t;tudr:nt ':; parent or ['}Wl.'di.an must, under t.:::ur:tl ci.rcumstu!.'.ccs,

cci:lplctc the. foret on or before Hay 1. of the~ school year p:r:eccdi.ng

Uw r;r;hool yc::.;n· for which the .sttlclent desires Lo :·•:<.rticipate :ln

\·:r:i th a copy of the fo:cm ':1h:i.ch [;h:1ll bc- prcr>c·: :·ed to the rcce:Lv:Lnr;

f>!. ltno L by tli0 ;_; LL!cknl:: ou tJw c:rmual rcgi.st:rn.tion day.

C)) Tile ~;chool f;y:;i~cm ~:h.n.ll puhlie:Lze the i•I-to-H tran;;fcr
• •

I
and noLicc':J j

f)J.::cc,1 jn :;ch0ol nc:-:·;::lci.:Lc-r::; nud lV"~¥.···'·~"l)\'..1LnC-'· L'.~:.> n.o 1··''ltL.'r. th:-(_~n ~·f<:u:ch

I I

!

l') of r:·u 1t yc:n_·. ~;::('il 1-:d).U.c Li.:y ~;J1:d.l he fo] Jm:rcd by notices t>'ld· i

~~~~;!n.l.i; t u c:lch p:u:cnl: or

n 1W L:.i:C'C thnn i··iarch 31 of C<J.<:h year.

I

~ •

'
.'

)
• I

' t-

·-

4

,.

.......
\.

~

Tf Uw st:t;c!cnt'~; race hecor~.'~; a 111ujor:LLy in Lltl! rc:cc~.Lvin~ se:wol, h12 T'~:.:y

1
i'i

school; or (c) t·c;1nsfcr:- to <HlOthc.~r school in \•i<d.ch his r:-!.cc~ doc's

,,•.,I

I ;1ot coinpri:::e mon~ Lkm a majority of the student body.

'
'I

(5) 'f:unl~;po:ci:n.tiun ~1h<.d.l be pnJ·lidcd

II

,·,I

, •• t
0~( CCl(~

mo1~~~ thn.n. orh'; nt:i_lf! fror1t the :o:cc:Lv:i.ng school.

r- ... -~')('J.r:c,-lcl

....

l

.. ~,.-,
-.t. •

...... }

1'':·: ,·, •--v}

... ,,, ._, 1_- :
..,::)\,.\:. • '-..

~;-

~

modification of tlti:: provisio•1 o [ the order if. hnscu on th::! num~

her of stucJcnt:s electing to cxc:cci~~~~ H-·t:o-·H trc::.n:-:;fcrs and the

I

n~crdving

schools

chos0n,

a i:Jorkc.blc plan

of

transportatiol.l.

I,·.,.·ovrH-·•~

I
I i

.J.mpo~-:; f.: :.I.b].e.

(G) These

in

I I
i
t
.-.·I1-TiJl"'l(,'1....1. t-'.r.·I. t·• (-'(l. '~

for txans:fers bcginnj ng \·Jit:h trw 1977-78 school ter-n1.

vd.shing to par1:icipate in the pn;gram for the rer.1.:.lindcr of the

il
d

]_CJ76--77

_J

•

sc1oo.l

tcon,

muy

trrn1S1r.:er

ton

sc1oo 1 w•n.1c11

qual.'1f·1' es

:I

:i unth' ,_. the prov:i_~}ions of this ordc~:r. and in \·lhich thc:;re is space
!\
.';I ava.i.lahle. Tran:3fe:n:cs must provide~ their ovm t:can~;pm~t:ai..:ion for
;j
;: li the b.~Jl<lncc of the l'JJ(j .. J] ~~chool t('J':"Hl.

II

l

!I

,I'I,

il

(7) The ratio of bJ ~de to Hhit:e teacherr: :Ln C<l('!h school must;
i

II he suh~:t::3.nt:i..:.,lly sirniL1..c to the ~.ystem-l·li(lc raeial ratio. Defcn-- :

l
I'I,

. , , . l l " b cro.tc l ' i L1r'1.L.1 t·.,'..)' .., ·"(' <...l.~.- ·.r1.~..,: CliJ 1'.."L>"(_'_:t,_1t to n~n.r-;sJ.<• _l)l t:c:::cn1t~'l."S \TLt 1 <3..... c e :t.

speer.

I,I,

so th;lt the r;_!ci.al c1v.;.t:r.~J,.!lUL.-L01l o·f: .f:~.tc1.1.] ty. J. .n !il::1...1._: sc1100.•t s appro:ct.-· .- .
111··1.t.·C· S t·.J,,C L·J·_i.._r, ·-j'··~"·-Pi)lJL'·.I'.o..n.. U··f·...f•,-.,C~ U 1...-L·-,y ·J'.i1 t-·ll'"-' C.,u,,t..J•.J..C, .<>' C't'tOC. )l ,c,•·y~·.•.'teJ",,.

1;

II;'

I'I
'I

l
li

!I
Jl

11

!I

:i

:II

'J'll ~~

i ~

1 or I) - pq::r~(

. ; cIn u P.]. /~(llJC: r•r,t:.:i··.;c··,<:~;

:;(':, 1'JU .] . ~: ..1• .{''l'l

1 ! i . C·'1 1 '<1• •. .:,••, .~..::-•..

rl''tll"-'

".. c·.-...._.,,-_,.1· ·.·.t·l.'.l''-

I

-

.

! ' ' (.' : ! .: ~ • i •.' !

~ l

' !

l f f I t :

1' ' ' ; l ' ~

t ·. . . . : l I. ,'I .. ~·' , : . : I :1 ·.' . : 1. t. ~-· "1 ~ ') \ ;· '""': ;: ; • ! : : ' .

·'

:•,'
1:
.:!, to !.:his sui!:.

J l;c• · 1 J 1.'J11_,..:".:; 111..1'1t"l_1-lt~'-l-" o.f• I·t'te. :·t·t'·!1j··c~'-J••"_'', \,'.·~t- ~··

:- t1'·-".,f~·'.";"r.·~":·t.l.'rl C, l I·>·Y t·.'.~.nl· ,..,

court ~1!.H1 i~hall conr.d~;t of no moce than /.0 1101~ lcs:; l:h•.J.n ten mer.<-

:1 1)(~ t"~~. 'fhe m.crnhen~ltip sh:1ll lw equally divided bc~t:vwcn l:th:i tcs ;mel
,i!, :;;i
\Ad. t.<~ :n•(1 a black ch:J j_ nn<:•Ll. The connHL ttec ~;hall make armual r.e--
d
~~ pori·:; tu f:Jw court concc~rning t:.h(_~ functJ.im.in~ of the H--t:o-H pro-

p,j:;_:;,l and any otht~.r. netion t~~ken by th.c cmtt:ni.l.:t:ee on vcopo~:.:ccl

c·(·· "' e o···· ,. 1 11 ·,-,- t· t· ('J•·t-_- • C•'J··J.(•1. (-...,·,l·l • • ~ ~ CJll•

C•'ll'(J 1.,. ln.>-c. •')'

,~ 11 O<J 1

..1-

L 1 \.. •

.

cl1 n"'"' ·i C:·' • · .. L .. _ , .·. <...~ .. J \-.-~

c•a..} • .• • , , ) •

-~
IT IS SO ORDERED.

o£ d ···'·''u./

- r.•ro. \' -(-·~"1'11:.) ',".,_-'.·.. I '. l:OJ J~\".) •

: i

tt' .:
-~·? (; ""

 
 Apalalsppteahrgeceposapwpieeesrreaconcpdhieeacsrke.eadsacgoaminpsltete

\~':''

/t tfochr~-t ent B

fi');,IJ IN c.L£R:<'~ OrF

U. 0. D. C.· .Atl:nt;
IN THE UNITED STATE~ DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

.

SC:? q_JQ83

......_. __. ".',\,
W.:'f~.L~. EUGE~E PIT1S, et al.

.

·:
.

:...·...

Sy:

S~EN~.~j~~t~' Dept~

'·~.

:

t

VERSUS ..

CIVIL ACTION 11946

:

'ROBERT FREEMAN, et al.

MEMORANDUM OPINION In this motion for a preliminary injunct.ion, plaintiffs· see to enjoin the defendants' implementation of administrative decision in three schools in the DeKalb County School System. Specific~lly plaintiffs challenge decisions made by defendants concerning Lakesid High School, Redan High School and Knoll wood Elementary School. Sine
the factual circumstances. and the requested relief. at each school ar·
. separate and distinct, the court has trifurcated these proceedings. 01 August 25, 1983 the court commenced hearing evidence on the Lakesid~ issues. At the conclusion of the testimony and oral argument, thE court orally announced its ruling. The purpose of this memorandun opinion is to provide written findings of fact and conclusions of la~ on the Lakeside controversy.
Alleging denial of equal protection of the laws, plaintiffs initiated this suit to absolve the vestiges of discrimination al-
legedly present in the DeKalb County School System ..!/ Since a federal
question is presented, the court's jurisdiction is invoked pursuant tc
28 u.s.c. S1331.

To state a constitutional violation based on the fourteentt

amendment equ~l protection clause, plaintiffs must..show not onlj

racial' imbalance in the schools, but also "a cqrrent condition of

I I"' \

. ·:..:•.

segreif~tion ·~esulting from intentional stat~ act~:on." Washington v.

...I....

Davis, 4~6 u•.s. 229, 240 (1976). To rebut thi.s prina.a case, educational

authorities must demonstrate that the ..current racialcompos.ition does

not result from their past or present intenti~nally se·gregative

action. Price v. Denison Independent School District, 694 F.id 334,

350-51 (5th Cir. 1982). In Swann v. Charlotte-Mecklenburg Board of
Education, 402 u.s. l (1971) the Supreme Co~~~ of the United States

recognized that "virtually one-race schools within a.distric~ is not

in and of itself the mark of a system that still practices segregatio~

by law." Id. at 26. Yet, in school systems having a.histor-y of

segregation, there is a p~esumption·against schools that are substan-

· tially disproportionate in their racial composition. Id. Further-

more, when a proposed plan for conversion from a dual to a unitary

system contemplates the continued existence of some schools that are

all predominantly of one race, school authorities have the burden of

demonstrating that the school assignments ar~ nondiscriminatory. Id.

The primary issues presented for the court's consideration

are 1) whether defendants purposefully conspired to discriminate

against.black students by obstructing the minority-to-majority (here-

.inafter M•to-M) transfers to Lakeside High School and 2) whether the

application of the school's capacity limitation figures in implement-

ing the M-to-M program at Lakeside was reasonable.

'''·;• I : , I
To support the position that defendants conspired to deny·Mto-M tr~nsfer students the right to transfer to L~keside High School, plaint~ffs presented evidence of various school ~~ficials' statements
and ~~.~......i.. ons·;. For example, Norma Travis, Vice Ch~:irman of the DeKal b
County School Board, averred that the superin~endent, Dr. Robert
tre~man, had declared "blacks should be kept i.n th~~r place." during a
"get acquainted" luncheon. She opined that Freeman made the statement because he thought she, a member o~ an ultra-conservative community, would like to hear such a statement.
The scene of the second incident bearing on defendants' intent occurred during a meeting held in the home of Edna Jennings on January 24, 1983. The purpose of this meeting was to discuss the responses to questionnaires sent to parents in various schools. In particular, a majority of the resp6nses to the q~estionnaires voiced support for the creation of middle schools in the Lakeside area. As a result of comments by Paul Womack, the chairman of the DeKalb County Board of Education, about the M-to-M students' impact on middle schools,· however, Travis stated most of the participants at the meeting changed their views on the need for middle schools.
Plaintiffs attempted to demonstrate purposeful discriminatory intent in the manipulation of the M-to-M program by presenting evidence of a conversation between Womack and Philip McGregor, a black member of the school board and the Bi-Racial Committee. McGregor testified that Womack had approached him about endorsing a proposed
-3-

~ ...

limitation on ·the number of M-to-M students in a~y given school.

Specifically, Womack asked him to support a limit.that would reflect

.... the c~"Iunty'~ racial composition.

I, \

.

.

Responding th.ci' ~.;.. he did not supper t

such a~imi t ,· McGregor r.eminded Womack such a plan ·had been presented

'

- .-

to and rejected by the judge formerly presiding.ovez.: this case. Womack

then argued that this court might react· differently to such a. proposal,

but McGregor remained steadfast in his views.

Fourth, William Adams, assistant superintendent in charge of

projecting enrollments in the various schools, ·.testified about a

meeting in Freeman's office on February 15,.· 1983 in which he and

Freeman were discussing th~ possibilities of closing certain schools.

Womack interrupted the meeting to receive information about the M-to-

M program at Lakeside. Aqams averred that Womack expressed .the concern of.residents in the Lakeside distr{ct about the inc~eased number of

black students opting to transfer to Lakeside High School. During this

discussion Adams also declared that Freeman, referring to the number

of M-to-M tran·sferees, ordered, "Damn it Bill, cut if off." In

response, Adams said he told Freeman that he could not alter the

projected number of students. Then Adams alleged that Edward Bouie,

assistant superintendent in charge of theM-to-M program,.offered to

deal with the situation. According to Adams, Bouie stated ni've got

the Bi-Racial Committee in my pocket and I can handle Roger Mills."l/

-4-

Subsequently, Bouie testified he received Adams' projections

for ihe 83-84 school year. Seeing a projected e~rollment of 1485 and

an

overall ~,

capacity

of

1560,

Bouie

testified

thu..•·.t. he

determined

that

a lii'Q\1' lt of •·110, rather than 75, ·should be pla(;:•e•.•p on the number of r..\:

students permitted to attend Lakeside vi~ the M~to-M program. --When

·this decision was later questioned, Booie informed ·Freeman .that he was

removing the' limit because some mistake had occur~ed. Based on these
facts, plaintiffs contend that defendants conspired to deprive them of

their equal protection rights.

On the other hand, Freeman testified that he did not make the

statement "blacks should be kept in their place." He averred that her

testimony on this point greatly upset him and caused him to lose sleep.

In addition, defendants presented testimony of three parents who
attended the meeting at ~he Jennings' home on January 2s; 1983. ~11

three witnesses testified that before the meeting was formally called

to order various conversations in small groups occur red. None of these

witnesses heard any remarks that the middle schools would increase the

number of M-to-M transfer students at Lakeside. Furthermore, at the

conclusion of the meeting~ two of the parents were avid proponents of

the middle schools and .felt like the implementation of middle schools

in DeKalb County was a distinct possibility. The other parent did not

favor middle schools because she was afraid their creation would

increase taxes· and not benefit her children who currently are in high

school.

-s-

"..( ' ,. ' '

In addition, defendants pre sen ted testimony by Freeman,

Bouie and Womack about the. February 15, 1983 meeting. ·.Generally, these

. defe~ants testified that Freeman and Adams were.in conference about

'

\

....

. the m\fdle s~hool projection figures when Wom.ack e~~ered the office and

l .

•....

..•

. expre~ied

his

constituency's

concerns

about .

th..e

i. r i c r e a s i n g

.number

of

students at Lakeside. After Womack ·~sked for the projected figures

concerning enrollment at Lakeside, Freeman testi.f ied that· .he called

Bouie in from. the hall to furnish Womack with the ~ost recent pro-

jections. Upon supplying the information, Bouie·testified that he left

Freeman's office. Although Freeman did ~ot remember making . the

statement, "Damn it Bill, cut if off," to Adams, he unequivocally

testified that he did not make the statement with respect to theM-to-

·M students. Bouie also denied the statements Adams attributed to him.

Reminding the court that as. a student and ·administrator he had

witnessed the transition from a segregated to a non-segregated school

system, Bouie emphasized that he would never do anything to inhibit the
I education of a member of his race. He further explained that he did

not understand that Adams' ~rejected enrollment figures included the: I I
number of ·M-to-M students projected to attend the eighth grade. ;
I
Therefore, Bouie testified that he felt that Lakeside High School could 1
I
accommodate at least 110 new M-to-M students. After receiving calls

from cf?ncerned persons and re-examining the projected enrollment

figures, .Bouie realized that a mistake had occurred and told Freeman ,

that the limit on the number of students permitted to ~articipate in

the M-to-M program would be abolished.

c... . t·:
In addition, many witnesses testified about the accomplishments Or. Freeman had made during the past two y~~rs.·with the DeKalb Coun~t'~cho~l System. Ouri~g Freeman's tenure as~~:perintendent, the numbe~~of students participating in the M-to-M·p~ogram has doubled. ·Inter alia, Freeman created the Fernbank Scien~e ~enter and a.writing center in which students from the entire county participat~ in groups whose racial composition is reflective of the gen~ral county schoolage population. Freeman also instigated a summer reading program to encourage s~udents to read when school was not i~ session. In the opinion of Elizabeth Andrews, a member of the DeKalb County Board of Education and various civic groups, including the National Association for the Advancement of Colored People, these activities pulled students from each region together to teach them how to cooperate and interact. with each other. The programs, according to ~ndrews, improved the racial relations between black and white students.
After receiving information that minority students were not well represented in extra-curricular activities because of the lack of available transportation, Dr. Freeman approved the financing of an activities bus that would return students to their respective homes after an extra-curricular event. He also approved the revising of the athletic schedules to promote more interaction of predominantly white schools.with predominantly black schools. As superintendent, Freeman .has nominated and the Board of Education appointed four blacks and two women as assistant superintendents. Currently, 18 percent of high
-7-

\.:".·;

level administ.rators in the school system are black in a county where .

36 percent of the school-age children in the county are black. In;

additi...,~n, Freeman instigated an early retiremen:~..· plan in which top.!

admiriI \~$trato• .rs could opt to receive a bonus. for ·.r:·~tir ing before they i

' ."...·

l

were so required. This plan not only has been c.ost. effective, bttt-also i

has presented the opportunity to appoint additiona+ minorities under ;
I

an affirmative action plan.

/

Several of the minority administrators testified about their •

working rel~tionship with Freema~. For example,· D~. Eugene Walker, an

administrator with the DeKalb County Community Center Unit of the
ii DeKalb County School System, averred that he was ~ired by F~eeman to

operate programs with affirmative action. An assistant superintendent I:
I for the southern area of the county, Melvin Johnson explained that he

had worked under three s~perintendents. He opined that the attitudes

·of princip~ls and teachers had improved since Freeman had ass~med

·office because there were no racial overtones in his administration.

In accordance with those views, Eugene Thompson, assistant superin-

tendent in charge of affir""ative action, stated that he had been hired

by Freeman, w~o was sensitive to the needs of blacks. He explained· that

Freeman did ?Ot send representatives to spea~ to predominantly black

groups -- he attended the meetings to determine their concerns and to

answer their questions. Bouie, the assistant superintendent in charge

. of. theM-to-M program, concurred in these opinions. He emphasized that

Freeman did not impose any restrictions on his management of the

-a-

program.· Bouie also reiterated that he made the decision to place the

110 limit on the number of possible transferees 'to i.akeside.

.. ·.~, As the fact-finder, this court was requAred to make cred~~

\ \.

.

. ;

bilit~.~eterminations based on the presented evid~nce with a view of

.......

not imputing perjury to any individual. This task was relatively

.

.

simple, however, because most of the testimony could be reconciled. For

example, during the meeting at the Jennings' hom~ all the witnesses

testified. that there were several small group discussions before the
official meeting began. Although one witness testified an incrim-

inating statement was made by Womack at the meeting, three other

witnesses averred that the statement was not made in their presence.

Therefore, assuming arguendo the statement was made, the impact of the

statement was .not disseminated to the group at large.

Yet, with respect to two circumstances in which directly

contradictory evidence was presented, the court had to find one version

of the facts more credible than the other version. Based on the

testimony as a whole, this court cannot give credence to perhaps the

two most damaging statements imputed to Freeman during the course of

this trial. The court finds that Dr. Freeman has conscientiously

contributed to the improvement of interaction between the races in the

DeKalb County area. He has promoted programs that are color-blind and

are for .the benefit of all children within the community. The court

was particularly impressed with testimony by black community leaders

not connected with the school system who testified that Freeman has

-9-

\.,,.,_..

promoted equality for black individuals when that course of conduct was

not socially popular. In-~1ight···~or~the many-·progr·ani~'t:'ivit.ies

that ·r,F,eeman'...has·tnspi·redAand ·appr-oved; ~th i s'·cotfr~~ommendS"'rathe·r-than

\ \.

.

·:·.

condeutns· hiric.for"·his work in p.romoting the .educ~.i:ional'"'needs-"'o~· all

t.\.·

children~· irt···~the"''DeKa·lb ·County School. System. ........

Likewise, this court cannot· impute any purposefu.l discr im-

ina tory intent to Bouie. The court does not believe that Bouie would

intentionally prohibit a member of this race from obtaining the

educational background he or she desired becaus~ he was prejudiced

against that child's color. Rather, the court finds that there were

serious breakdowns in communication between Adams and Bouie. This lack

of communication ·resulted in the morass of complication• in effectu-

ating the school system's programs~

Although plaintiffs introduced Womack's conversation with

McGregor to show the specific intent to discriminate against blacks,

this court interprets this action as an attempt to approach this court '

throu~h the Bi-Racial Committee. Accordingly, no unlawful motive can

be imputed to Womack for attempting to litigate an issue.

Therefore, the court finds that plaintiffs have failed to

show any invidious discriminatory intent on the part of any defendant

in this case~ Injun~tive relief will not be granted on this ground •

. The second issue presented for the court's consideration is

whether the application of the school system's 26 students per one

teaching station ratio was reasonably applied to 1 im-i t the capacity of

-10-

1/ This action initially was brought to desegregate the DeKalb County School System. Another member of this court created the minority-to~

majority transfer system which is currently funri.tioning in this

county.

·

2/ M...r\l Mills, a member of the Bi-Racial Committe~, has been a strong

.advoC,·~:;:te

fo'r.

the
.

protection of minnor i ty

s tuden.t:':t..

rights.

.

11 ~ii~::.:::aipac:tty· of,-the-M..gh-sc.llo~pmeu te.d ~ ..by_..tbe.edollowing

f-ormula:

·

"·. '

·

tr~~~nU11l9!'f-aP.~ac:hing~Ra.~ns,~u~~~J;.h.~!ltt~Yn-

,~'b·e!',.of'J~eel:'n'13'educati·on·<roOms.,mult.ipl-.ied!.!by•·€he

f igure~tofat·26'·«11Jtudents- · per..."""statiorr'"-i!quals· · the··

capaci ty«·of the school. A1)piyTn9"'~this formula

r evetr4's t-·' ·that the., capac i ty-o·f · ·La ke~sTd'e'.!P"'i s -=t6 3 ·

(total- stations) · - 3 (special·:- educat-ion1<-J- x..-.26 (s.tudents .. per station) -••·1560 (total~apac-ity·)..-;'

...-

7'2A '· 8182)

-13-

 
 R

l DEMAND"

JUDGE

· ..:....-·.:.-·-
DOCKET

Apalalsppteahrgeceposapwpieeesrreaconcpdhieeacsrke.eadsacgoaminpsltete

,23 $

lofER NUMBER YEAR

NUMBER

-

...~ ~-~-r~.~-

Wt~~fE-EHSENE-PfllS;-a-Mtnor;-by-hts--­

Mother-and-Hext-~rtend;-MRS~-ANNA-MAE---­

PtflS;-vtefeR-MARftN;-a-Mtnor;-by-hts----

Pather-and-Hext~Frtend;-R6BERl-t~-MARlfN;---­

KftVtN;-PEttetA;-A~PREB;-6RMA;-and---­

AtFREBtA-HENBER56N;-Mtnors;-by-thetr------

Pather-and-Hext-frtend-PArRf€fA-d6¥eE---------

REEVES;-a-Mtnor;-by-her-----

DEFENDANTS

L

~u

ROBERT R. FREEMAN, Superintendent, ELIZABETH ANDREWS, NORMA BERGMAN, PHIL McGREGOR, LYMAN HOWARD, DONNA WAGNER, DAVID WILLIAMSON and PAUL WOMACK, as DeKALB COUNTY BOARD OF EDUCATION members

Mother-and-Hext-Frtend;-Mrs-:--R65A-t:EE---·~
REEVES;-AHrH6HV-REEB-and-eEett:fA-SEAR€¥;------
Mtnors;-by-thetr-Mother-and-Next-Frtend;--AIIO~~--­

MRS~-dHAHfrA-5EAR€¥;-NEB-and-BE€K¥-5fBNE;­

MtA&Psy-9y-ihetF-FatReF-aA8-NeKi-FF;eR8~--­

AbFRi9-ET-~iQNiy-dRTi-JQ¥y-8R~QS•+y-aR8---­

SANQRA-BEGKiRy-MtA8Fy-9y-tRe~F-FatReF-aR8--­

Next-F~;en8y-b9Y~5-ET-BEGKiRi-aAe-a++---­

othe~-s4m4~ap~y-s4t~atee--------

O:U..~ 1i sted--abo¥&--de~~ted--b¥-~-e-f:..--eMJSE ~-and- st:Yl e ~-c-a.se-..:j..s..~-a-s--be+ew-c

all plaintiffs changed in case caption below
. ~""e"' re. changed bl order dated 12/21/90.and
now read as fo lows:
PLAINTIFFS

DEFENDANTS

~-AAt\TH£-R-r+-fM.oo.p..,-~..fte.ra.~
-aft !i-~~r-G¥NTHIA -5WH;--Mld-..fte.r
~..aftd-~~r-MAJOO-~-MfN£-e&S­ ~!.-l-&-r+~,-~~..:ffit~-eftd-~--fft+end;
OOGER--MH.-L+.

YALENCIA MILLS, a minor, by her parents and
text friends, BERTA MILLS and ROGER MILLS: lDESINA, ADREANA, and ARDONA SCOTT, minors, •Y their parents and next friends, CYNTHIA ',COTT and MAJOR SCOTT; ASHLEY and B' RANDI RMSTRONG, minora, by their father and next riend, HAROLD M. ARMSTRONG; HARAJA and IHAN EL-SHABAZZ, minors, by their parents
nd next friends, ASAHITA EL-SHABAZZ and ~RWANNA EL-SHABAZZ; JAMES SOMERVILLE, a
inor, by his mother and next friend, \ROLYN SAUNDER: NATHAN JONES, a minor, by ls parents and next friends, CAROLYN JONES 1d WAYNE JONES; NADRAH, MALIK, MANGOOR \LAH, and SALIM SABIR, minors, by their

~w. JN' NIJA'I'TON

FILING FEES PAID

ECK
~E

DATE

RECEIPT NUMBER

liAS

;

ROBERT R. FREEMAN, Superintendent, . ELIZABETH ANDREWS, NORMA BERGf~N, PHIL
McGREGOR, LYMAN HOWARD, DONNA WAGNER, DAVID WilliAMSON and PAUL WOMACK, as DeKALB COUNTY BOARD OF EDUCATION members

A'ITEST: A TRUE COPY
CERTIFIED nus , ~1 J...l ~
Luther D. 'TIUms, Clerk
By: l\_~~
Deptity Clerk -

C.D. NUMBER

JURY DEMAND

0 PLAIN.
DATE

0 DEF.

STATISTICAL CARDS

CARD I IC"t""

DATE MAILED

)C lllA Rev. l/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

DATE

I NR.

PROCEEDINGS

CASE CAPTION CONTINUED:
parents and next friends, MAHASIN SABIR and ADIB SABIR: CHRISTINA THOMAS a minor, by her mother and next friend, GRACE THOMAS: MICHAEL, STEVEN and NICHOLAS CREAMER, minors, by their mother and next friend, MARGUERITE CREAMER: SANDI and KARLA BAILEY, minors, by their parents and next friends, EVELYN BAILEY and LARRY BAILEY: BRANDON RUSSELL, a minor, by his parents and next friends, KAREN RUSSELL and KEVIN RUSSELL: MICHAEL, GERALD, and LACY PERRY, minors, by their mother and next friend, NINA PERRY: DARIUS and KEVIN MCVAY, minors, by their father and next friend, WILLIAM MCVAY: JULIA STEWART, a minor, by her mother and next friend, ROSE STEWART: JEEZANHAY, HALANI and TASHIANA BLAKE, minors, by their mother and next friend, BETTY BLAKE.

DOCKETNO. -------PAGE _OF__ PAGES

CIVIL DOCKET ~nTED STATES DISTRICT COURT
C. Fonn No. 106

_/

WILLIE EUGENE PITTS, a Minor, by/ his .-:

) M'o:!:her and Next Friend, MRS • ANNA MAE .

PITT-S., ;

VICTOR MARTIN,

a

M

i.

n
/

o

f

, . ..::by .

his .~
.._ -

Father,and Next Friend, ROBERT L. MARTIN:

KELVIN,

LICIA~

I ,·
ALFRED, ;<)RMA,,

' ~nc'' !_' J

ALFREDIA H ERSON, MinOrs, by_ their *

Father and Ne Frien , ~~~-aENDER50

PATRICIA JOYCE

VE

Mother and Next

REEVES : ANTHONY Minors, by thei MRS. JUANITA S Minors, by th ir

Next Friend~­ BECKY STONE,

ALFRED E. ST NE, JR.; JOY, BRID T,
and SANDRA ECKER, Minors, by thei Father ana!Next Friend, LOUIS E. BECKER; and all others similarly situated
·6 -._Movant- ·Plaintiff's. '(see sheet 2B) '6 - RECECCA HENDERS~ ~ ·

A.TTORNJIYS
For plaintiff: (Order of 3/15/76)

. ~-€-HBttR¥..,-..S.~~-i-a~~..o.f-SchooJ..s..,

. IT~3l.tr-c:ot:Irrt:y;-~gi-a-r-f>ft-.-·.:rJ!s.'MeS--H-.-

mtfSe:N-,--d'ft-.-;--Pres idert't:-;--~3:B-~i~-­

-G&J:.~,..-~-1l~-:.COW~~ BOARD....QF__

~ttets:H-eN- - - -

,,/

'ffi.A~.~Vu.I·.Sl<,'u.•a, nSudp}erHi ~IL,~R",

LY'MM-J a

lb

, County

Board ~f Ed~n Nernbers ·

. ; .J : i-' / JS-5:

·. /

( .__ JS-6:

I4t"-'2I9.-.0g5 ~ -:---_f. ·-c~ ·

-.......__-----------=--

S'l'.A.TISTICAL RECORD

COSTS

i. 5Jaailed 7/5/68

Clerk

D.A.TIII

NAKBIOR RECEIPT NO.

DISB.

3. 6 msriied 6-12-69
5-31-79

,,Marshal

sis of Action: Class action Docket fee

> enjoi'n defts. from

>erating public school Witness fees

·stern of DeKalb County Ga.
::tion arose at =on a rac:ia.ly -Depositions

egregated basis

CIVIL DOCKET CONTINUATION SHEET PU.INTIFF
\'liLLIE EUGENE PITrS, ET AL

DATE

NR.

DEFENDANT
JIM CHERRY, ET AL
PROCEEDINGS

Sheet 2A
DOCKET NO. 11946
PAGE UL_ OF _ _ PAGES

COUNSEL

(Order of 3/15/76)

~ -Me·c~"l""e",- -u=-1"". 3-Ji:.G. -!'.~_']b.&.-~~.
J:-6G.-F~~~ o.a.&J..and.r~-~
GQ~~~~l-fo~-pltf~

:8-J:.~'(;b. -tt~f
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Ha:mdeft,-~~ir-o67l-7
Se~RS@!-fe~-~l~fe

for pltf:
---~A~44-~,-~~~~t-------4~4Q-~4~~t-At~~~ta-~~ ---At4«~ta~-~-JO~~QiQ4 ---GS2-~~11-----

:3!B:5 Mantwood :or. Deeacat, Ga. 30034
N3-B:5B6
giQ-~~eea-S~ee~T-STW.
A:ttanta;--6eo-rg±tl--'96"9t6-,;; .J .~- ..., 3
~.:r-.,;.L...;l..J,..IIIIL'#..S~.:J..-..¥· )-"L -
for pltfs: liVID 5/;tl/13-.
MARGIA U. BOROWSKI tttiit88 _ SJANFORB, FAGAN & SIQ~IlO . _
lAOl PEACJHRH: ST. , NE - 'SUITt: 238 ATlANTA, GA 39309 A-04 897..; 16C'JO
~.$a~ ~ircr~:
-~-W--Bol'...QlolS.ki
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AM€~€AN-€i~it-tififRiif5-~ffiON 5~HEffff-~f~ifiNAt-6ffiCE
~~-ffiR5~1~51~;-NW
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A1tAff1A;-~A--~----­ ~e4---~~~£1----

for pla
~a~~~~4+~~----ll-*7-86 10/
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7o-FatrtTe-~t-Nw-~oite-2tl6
Atlacta~-Georgia_30303_
404t52l:313Q__ _

" I
I·

.. '.f

- !/

, .- {

ATTY FOR NON-Party Reporter Robert Anthony Watts) JERRENCE B. ADAMSON 4950 \/PETER C. CANFIELD 107748 CAROLYN Y. FORREST 269384 ONE RAVINIA DRIVE
t""IITTr- 1"'\1'\1'\

lCKET CONTINUATION SHEET fiFF

"E

NR.

SHEET 2B
DEFENDANT
PROCEEDINGS

11946
DOCKET NO. - - - - PAGE_ OF _ _ PAGES

5/l'(J/78 Intetvenor
(pltf.)

Movant-Plaintiffs Added 11/03/76
MONICA ROCKER, a minor, by her father and next fried, ARTHUR 11ROCK 11 ROCKER; JOHN JOHNSON and DEVETT SMITH, minors, by their mother and next friend, MS. EUNICE A. SMITH; FRANKIE PRATHER, a minor, by her guardian and next friend, CYNTHIA SCOTT, and her father and next friarl, MAJOR SCOTT; PRINCESS MILLS, a minor, by her father and next friend, ROGER MILLS; MARK ANTHONY WHARTON, a minor, by his mother and next friend DORIS PATILLAR; and all others similarly situated.
ANN T. JOHNSON

ATTORNEYS FOR PROPOSED PLTF INTERVENORS RAMONA HOOKER, Individually and in her Official Capacity as President of THE ASSOCIATION OF VETERAN EDUCATORS OF DEKALB COUNTY,MARY DRISKELL! BLONDCILE S. WALKER; JAMES W. PENNINGTON; and THE DEKALB ASSOCIATION OF EDUCATORS

~. Lee Parks 563750

John J. Goger 299050

Theresa L. Kitay 424295 ·
eo:~. KIRWAN, GOGER,~ 1
1c!~:L:RP~~~~~ P.~GOO Glr; ffi.a«~+-

-1-27 PEACHTREE ST., N~ ?5 ~ 'IL(., •

ATLANTA, GA ( 404) -688=

10-3000303513.-30g-3o0oCaj

~BRUCE K. ROBERTS

ATTORNEYS FOR PROPOSED INTERVENORS PAULA WHITE, CARL WOLFORD, and all similarly situated persons,

.A EYS FOR PROPOSED P INTERVENORS

(a group

s of black children)

392850 574408

ATTORNEY FOR PLTFS ..
~DWARD A. HAILES, JR. (pro hac vice)
NAT'L ASSOC FOR ADVANCEMENT OF COLORED PEOPLE (NAACP)
4805 MT. HOPE DRIVE BALTIMORE, MD 21215 (301) 486-9195

ATTORNEY FOR PLTF

{appeared 7/19/90)

~ILLIE ABRAMS 001437
ASSISTANT GENERAL COUNSEL NAACP SPECIAL CONTRIBUTION FUND 4805 MT. HOPE DRIVE BALTIMORE, MD 21215 (301) 486-9196

ATTORNEYS FOR AMICUS CURIAE SOUTHEASTERN LEGAL FOUNDATION, INC.
ROBERT B. BAKER, JR. 033881 vfG. STEPHEN PARKER 562300
ROBERT L. BARR, JR. 39475_ SOUTHEASTERN LEGAL FOUNDATION, INC. 2900 CHAMBLEE-TUCKER ROAD BUILDING 4 ATLANTA, GA 30341
(M'\11\ /1~0 .. 0?1')

ATTORNEYS FOR PROPOSED PLTF INTERVENOR. ~a group of black parents of black chi
vf CHARLES S. JOHNSON, III
Peterson Dillard Young Self & Asselin 230 Peachtree Street, NW Suite 1100 Atlanta, GA 30303 (404) 523-3300
~tty for plaintiff-intervenors: vfBoykin Edwards, Jr.
4319 Covington Highway Suite 309M Decatur, GA 30335 (404) 284-2888

.1-194

'B ;:; J= -··=~===================r=:~

11 DATE
\)1968

\J \:) \._ \)

PROCEEDmGB

. ily 5 ~Compla~nt filed. Summons issued & delivered to U.s. Marshal.

hds

11 -~arsbal's return of service executed as to DeKalb Co. Brd. of Ed.,

~

29

r. Jas. H. Hinson, Jr., Jim Cherry, Supt. Schools 7-9-68, filed. ...-ANSWER of Defendants, filed.

vtb
"

;pt. 27 ~ltfs' motion for preliminary injunction, with memo. in support

/filed.

hds

{Order that defts. show cause at 2:00p.m~, Oct. 10, 1968, why pltfs'

;motion for preliminary or permanent injunction & for reasonable

;attys' fee~ should not be granted & that defts. be served copies of

order forthwith, filed. Copy to counsel.

"

~t. 2 Per NE, notice to counsel that above hearina has been reset ror

Friday, October 11, 1968, at 3:00P.M.

~

jsw

10, t ~;.rridavi of JIM CHERRY, filed.

i1emorandum in opposition to pltfs. 1 mot. for preliminary or per-

manent injunction, filed.

rms

l 11 Came on for hearing, but hour being late, court stated would be set

for later date.

"

22 Ct. re orter•s stenotype notes filed.

hds

28 7ranscript of proceedings of 10-11-68, filed.

'10 \... \5

rjt

. ,

r ·. e

on pita. motl.OD rw prerUdliarJn -· ~-~~ --- ·-

"V•

8

PinejrUD:rmO,tiaobno0v1e1

Thurada,.,Jfovember
hearing reset tor

14, 1968 at 2:00 P.M., coW'l8e1
1'hurad.q", December 12,1968 at

notit

ed.

j

10:00 A.M., oounae1 notU'ied..
,c. 9 Per NB, above aearing reaet tor Friday, December 20, 1968 at 10:00

J

A.M., COUDIIel notified.

18 Per NE, taken ott tor above hearing, to be reset at later date.

Notice b counsel.

js

1969

:b. 18 Per NE, set for hearing onplts.·motion for preliminary injur.ction

on Tuesday, March 4, 1969, at lO:OOA.M., counsel notified.

j

25 Per NE, notice to counsel removing case from above hearing, to be

set at a later date. (request made by counsel for continuance)

js

r. 7 Per NE, notice to counsel that case is set for hearing on plts.

petition for preliminary injunction on Wednesday, April 9,1969,

.-A

9

at 2:00 P.M.
HEARING on pltfs' pet. for preliminary injunction. Defts. advised
they had just recently adopted a plan of desegration & ct. directed

they get copy of plan to pltfs. by Mon., April 14, 1969, that

pltr~ make response by Monday, April 21, 1969, & then SUBMIT to

ct. at that time for study. Case set for further hearing on

Mon., April 28, 1969, at 2:00p.m.

h

10 Court ~eporter•s steno notes of 4-l0-69, filed.

4-9- 21 ~'l.Tanscript

ot

~aring
.IJVV'-')..4,;,1•

on -ENTRY

-OF9!_,].j:f/9i/l6e9d.

.

"'o\.
-·-~---··-

.

liD ·~·-·

- - - - - . - -. ---~

jl ~---~
. ---~--·"

28 Defts''response to pltfs' objections, ±ntfiorm of letter; with

two attachments (memoranda), filed. ToNE.

'

29 Further hearing had as cont'd. from 4-9-69. Court took case

under considerati n.
ay 20 Transcript ot hearing on ,

-----· To NE. \!()\~ \'I

ourt reporter s steno notes,

he
----..?---r
»t
it

----- ---c---- .. ____ , --

vs •.Jim Charry, et al

D. C. llOA.,

(

C. A. 11946

DATE
1969

\v L , FILING5-PROCEEOINGS

~

CLERK'S FEES
1 0 c.~\\\,. ~----PLA-,HT-,,.,.-,.--UEN--D..-.HT--1 ~~

May 2·order directing Hora~ Bohannan, Acting Reg. Dir. rgr C~vil Rights, Dept. of Health, Education & Welrare, Atlanta, pa., ~o appear in t~s court as a witness on Wed., May 28, 1969 at
9:30a.m., riled. Copy delivered to U. S. Marshal. Cop~es tp

cuunsel.

28 HEARING HAD ON MOTION FOR INJUNCTION: Court toolt 1:he ca~e

@ under consideration.

jc

June 12 ORDER (allowing DeKalb School Authorities to select one of tne

two alternatives to be adopted) and JUDGMENT enterec & filed.

Court retains jurisdiction. Copy to counsel.

.,.,

. 17 Marshal's return or service on Order or Court executed on 5-I2~-~9J

riled.

1'11'

26 TRANSCRIPT of hearing 5-28-69, filed. 'JQl. a g

L.':J ;)t:eno not:es OI May :Lo, l.':JO':J, I~.Lea.

Oct. 13 Reports of defts. pursuant to order of 6-12-69 file' .

n

1970

July 21 Report of defts. pursuant to order of court - f:led.

II

Sept. 28 Report of defts. pursuant to order of court, filed.

j\

1971

XN X 1f X IGI. X ''1riiWIPIX~IPIX X lOA I[ Jll I 1111

Jl[ IX JIM 'X" ..WJIIR Jl[ X xKYM1t'bXXJiX~XJI~.AX.."a'.~..o..D..ji.iL.Ijx~x"'+4x.,.x.,..:•~~.~l~l~~.xl\.xl\..-·~:l'll·-·

July 14 Reports of defts. pursuant to order of 6-12-6 ~, fi~ed

p·

August 20 Hotion for Further· ·relief by John D. Harper, filed.(C to I-:Tr. Candler

db

Per JS'w)

26 Response to appeal (above motion) by defts., filed.

jv

;teptember 7 SJBHITTSD ON i~OTio:.; FOR FURT.2R RELIEF BY JO:·i~~ D. hARPER..

(

Oct. 19 Deft's. response to section S(c) of order dated 6- 2-E9, fjled.

To NE.

jf

27 Order filed dismissing the Appeal of John D. H~rper. Popy Jo

counsel.

mj'

Nov. 24 John D. Harper's Notice of Appeal, filed. c. to counsel, cert c. to

U.S.C.A. w/c of docket sheet/

db

Dec. 2 John D. Harper's AMENDED NOTICE OF APPEAL, fi1~d. (CepiT to

counsel & U.S.C.A. w/copy of docket sheet)

1 CK.

p'l:vt

13 RECORD ON APPEAL TO U.S. C.A. via Reg. mail. R. R./ (Cc unse1 ad~e:) "

1972

Feb. 10 Ce:rt. Copy of Order of u.s.c.A. granting appellees' motipn 1 o dis•is

the appeal, filed. (eopy to counsel, 2/10) File xeturnect.

jV~

1·1ar. 16 Order of u.s.c.A. denying appellant's motion or reco side at on
of U• .S.C.A. order dismissing the appeal, filec. co :)y 'o em nss 1 by Clk. of U.S.C.A.

June 29

Report of Pike County Public Schools, filed. Report c:£ Dekalb County Board of Education, filE d.

28 Pltf's motion to consolidate actions with C.A. 1670~, o adc.

parties deft. and for leave to file a supplemeJtal ~nd amenced

complaint, & proposed supplemental and amended comp~aixt,

filed. (Copy to each judge)

"OVER 11

DATE
1972

\Jcn..... FILINGS\-PROCEEOINGS

CLERK'S FEES

AMOUNT

~~ ~----~~----~ ~~L~~~

\"""' \

PLAINTIFF

DEFENDANT

RETURNS

uly 5

ORDER {SOS) that pltf's motion to consolidate parties deft. & for leave to file a supplemea complaint are hereby ALLOWED AND ORDERED FILE objection, FUR~R ORDERED that the Marshal o parties named as additional parties defts. & before this ct. in the original three princip to be consolidated herein, filed. (Copy to co Pltf's supplemental & amended complaint, file Summons issued on add'l party defts. & del. t

Order ext. time thru 7/21/72 for responding t consolidate, filed. (Copy to counsel &~--~--a;•
ANSv-TER of Atlm ta School to Plfs 1 amended compl
Response to motion to consolidate,filed. Response of the Board of Education of Cobb date actions, to add parties deft. and for
amended complaint, filed. 31 Clayton County clefts' response to supplemental
filed. Response of The Board of Education of Clayton consolidate actions, to add parties deft. and suppl. and amended complaint, filed. Aug.22 Letter report of deft. 't'Tith two maps & 1 tr. by plt there are no objections to the attendance zone cha Order approving deft's requested changes in at end DeKalb County School System and the changes rna be
1972-73 school year~ filed. Copy to counsel.
3EPT.l2 Pltfs' Memorandum o~ Law, filed.

ov. 17 0RJIER by 3 judge panel that all proceedings a

order of this court, except insofar as a singl

stay for discovery or other motions not relati a 3 judge panel or the motion to dismiss on t filed,(c. counsel)

ORDER that stay is lifted for following purpos

discovery: (1) f\efts. are to furnish Plfts. w

for t~e school year of 1972-73 (2) such respon form or data maps & records (3) Defts. granted

respond in writing or until 12/1/72 to set dat

to inspect records during Dec. (4) except as p motions for protective order by defts. are gr

to all other disc:Jvery & motions until furthe )ec. 15 Pltfs • motion to vacat'e stay, with brief & Exh. B~
29 Response of The Cobb County School Board to Co rtI's Or

with Exh. A & B, filed.
1973
Jan. 3 ORDER by three judge panel filed DENYING the mo ion to
previously entered on 11/17/72. Copy to counse •.~. · t:' "' .. ~ ·'.

9 Response of the Dekalb County School Board to
with exh. A&B, filed.

·une 28 Pltfs' motion to vacate stay, with brief & attacbs. fil • Atta

C.A. 16708 only)
*-

See Sheet #3

all
li-
d
a ng
T
!
rthe emov
for ief,
sel)
y

- - - - ' . - - --·
vs Jim Cherry, e1: al (

..-- jfm M1i1 •\,,·.•/ .tJ ~.. ( '

-....... ........
Civil Action 11946

D.o. llOA Rev. OlvU Docket Continuation

DATE
1973

July 16 Three-Judge Order filed - directing parties to file briefs within 15 days

as to whether the peeition as amended still presents a three-judge question

after such determination, the court as then constituted will rule on the

motion to vacate. (copy to counsel, 7/16)
18 :-1er.1o in support of defts 1 opposition to pltfs' motion to vacate stay ·& response of defts. Cook, et al in opposition to pltfs. motion to :vacate stay, filed. Copy to each Judge.

31 Supplemental brief of Cobb County Board of Education, filed.

Brief of pltfs. in opposition to a 3 Judge Court, filed. ~~

~ust

3 Plfts' second brief in opposition to motion for a 3 judge dourt,

filed. ( c • judges) t ·~ .

2li Order directing that this case proceed simultaneously before a three

judge p~nel of Bell, Smith & Moye and as a single judge court before

Judge S ith; setting hearing for 9-26-73, at 10:00 A. M., & lifting

stay until further order of this court, filed.(Copy to Counsel &

29 PSlMtflsc,JFmEot8~.o-2n4)to shorten t~. me f or answer1. ng ~. nterrogs., wi t h ~· nterro
& pltfs' motion to compel answer, filed.

J) ORDER directing that above interrogs. be ans. by 9/10/73, filed. (c. counsel)
Sept. 5 Letter dtd. 8/22/73 from the law firm Weekes, Candler & Sams, repre-

lsenting the Dekalb County Board of Education, advising of the change
in six zones re schools, filed. 10 Buford Ci:ty Board of Education's Answers to Interrogs., fruled. 16708

ll Alonzo A. Crim, Superitendent of Atlanta Public Schools'· answer to pltf's interrogs., filed.

12 Answers of Dekalb County Board of Education To Pltf's Interrogs.s filed. (~PY to each judge.

14 Motion of Plfts. Armour, et al requesting Hon. Griffin Bell To
recuse himself from C~A~ 16108, filed. Brier in support of above motion, filed.
ANS. to plfts. interrogs. by deft. Cobb County School Board, filed.
17 Answers or The Board of Education of The City of Decatur, Ga. to
Plfts• interrogs., filed.

Answer of Alonzo A. Crim, Superintendent of Atlanta Public Schools to pltf's interrogs. #2, filed.

24 Plfts' (Armour, et al) Proffer of Proof with attachs., filed.

26 Pltfs. proffer, filed. Response to proffer of proof by pltf. of Gwinnett County Board of

Education, filed. HEARING/on"courf

oTrha~fedtJ M.dgB/24/73.

Court granted Atty.

to tender proffer filed 9/24/73. Atty. Howard Moore filed

pltfs. in Nos. 6298, 12880, 11946. Court served copies by courtroom

Clk. Counsel Moore hand served all counsel in courtroom. Court grant ,

counsel 20 days to file response to proffer offered by pltf. (10/17/

Court granted counsel 20 days to file response to court's questions

relating to City-County line sharing of Education (11/6/73).

-,cL. lG

Transcript of proceedings had 9-26-73, filed.(In lG708)

OVER

DATB

Date Judgm

•

.!... ' •

, I l...J
23

24 ~ov. 5

o.... th' c varlO· iJS , ,. . T"""""C'f)Q ;,...,,....

:-·-

liul...

J._O
L

J' r~
Ll-IC:C

:'rO~.t~.n t...:"S

O.r:::.L_ rJ;"(!GI,..

.c

D.Lt.!...S T ~l)y U"' .E:,....J.:t.S'

T1' ~......')"L'~-a-t,.~,, T._ "'lekal-!..J ~.ot1nty , .,...,ou, ,iJ '",' OlJn t :'7;, ,........L..L:~).'- OJ...c. ,,..arl•2L..L_~ a, ,,.,..l,.e. v Oi.-.

~·~.':ore an(~ '";laytor. :o-:_mty ivit:, attachments, fi:e:d. (In 1670::::·)

,.....,c ~'~'"'T"\).,fTM"'l,......_..,T""''
1 );) H'l.J....t..l. .....;

"'"""\..,. ... , .-:__;

.-..J...!.,._·,... ..i.~... ,.,J.........,

1 T...'-"~"'~,.·.·.,...,l!..,r~-.~'~~"" a~ ~·

9 -

.?....

r 0

-

1

,

....,·~.

( nL..-,•~J..(,l.

00 t

•· .,
8'2-LIG.

IL: l•J."t..e )

Response of Atlanta Board of =ducation to Proffers of Pltf., filed.

(Lup to NI:)

Letter from law firm of Weekes, Candler & Sams stating that report

attached to same was in response to an Order of the court, filed.

RESPONSE of deft. Fulton County .Ooard of Education to proffers of

plfts. Armour, et al, f2led on 9/23/73 a."ld Q/26/73 and to pfoffer

of plfts in nos. 6298, 12880 and 11946 f1led on 9/26/73, filed.

Answers of Gwinnett County Board of Education to questions propounded

by the Court on 9/26/73, with attachments, filed. Answer to questions propounded by the Court by: (1) The State Defts; (2) The DeKalb County Defts; (3) The Clayton County Defts; (4) The

City of Marietta Defts; (5) The City of Atlanta Defts, with appendix, 6 f'litlle:sq. r(eIsnpoCn.Ase. s16to70q8)uestl.ons propounded by the Court, fl.led.
:>rtfs' proffer of proof (public housing), with Appendix A, filed. ~UBMITTED PURSUANT TO ENTRY OF 9/26/73, "QUESTIONS PROPOUNDED BY THE
~OURT".

7 Answer of Deft. Fulton Co. 9oard of Education of ques. orooounded t.
by the Court with Ex"ibit A, B, c, c-1, and C-2, f1led. TO-Qos(in 1\.708)

Answer of ~ft. Cobb Co. Board of Education of ques. oroo~~ed by the Court with Sxi1ibits A 3l1.d B, filed. TO ~OS ( in· 16(0ts)

12 Answers of deft Buford City Board of Education of Questions Propound·

ed by the Court, fi1ed. (In 16708)

s

14 Pltf's responses to questions propounded by the court, filed.

(in 16708)

·

pl

Supplement to proffer of proof filed 9-24-73, 'fit-·plitfs', filed.

1974

JLY 31 Pltfs' Motion To Vacate Stay & For Hearingy with memorandum, file•l

sl

g. u.. SUBMITTED ON PLTF'S MOTION TOVACATE STAY & FOR HEARING.(pretains to

lE

.!pt. 23 File returned from NE. Ruling forthcoming from GBB

C.A. 16708 pnly)

'-T' 8 Pl tfs Motion For Leave To Hi thdraw Supplemental and ..-'\mended Complaint,

filed.

skt

11 Pltfs r Hot ion To Amend Complaint, 't'Ti th Propos eli 2nd Amendment To Com-

p&:aint, filed.

.

sl

23 ORDER (THREE JUDGE) GRANTING pltfs' motion to withdraw their previou~ly

filed .r.1otion to consolidate, add parties deft, supplemental and

amended complaint~ H/o prejmdice, :filed. (CoJ?y.Couns~l 10/23) .

sl

30 Copies of Order flled 10/23/74, ma~led to Ph~l~p F. &'1teridge & :To.

975

Franklin Dykes High School PTA, returned.

sl

ly 31 Letter from the law firm of Weeks, Candler & Sams with attachments

in response of Court Order of 6-12-69, filed.

~pt. 8 9

Pltfs' motion for preliminary or permanent injunction with brief and

attachments, filed. NE

·

,I,t

Pltfs' motion for supplemental relief with brief,filed. to NE

HEARING:On petition of several of the class as to why their childreQ

cannot be transferred under the M to M system within the school district.

Court verbally ruled that on the issue of M to M transfers the issue

is not moot, and on the question of faculty, the court too! tnat mat-

ter under consideration.

-

skt

-vsIM CHERRY etc. et. al.

CA 11946
page

D. C. llOA Rev. C!vtl Docket Continuation

c. --D--A-T~E7~5, ___________________________________P_R_O_CE_E_D_IN_G_S______~'\~1~~~L~,~\-----~·~~"~"'T~·~0~--

Sept 17 Steno notes of hearing had 9/9/75, filed.

19 Pltfs' Motion For Preliminary Or Permanent Injunction filed 9/8/75 returned from NE unsigned, rec'd.
25 SUBMITTED TO NE ON PLTFS' MOTION FOR P~LIMINARY OR PERMANENT INJUNC

TION.

OCT. 30 ~etter dtd 10/15/75, from Weekes, Candler & Sams, with attachments,

!Piled. (To NE 11/3)

.

1976

Jan. 12 Notice f& withdraw as counsel of Howard Moore, Jr. for pltfs', rec'd. (Advised

r.t\

to comply with Local Rule 71.7)

~MAR. 5 Motion To Waive Application Of Local Rule 71.7 & To Permit The ~Vi th-

drawal Of Howard Moore, Jr., & Elizabeth Rindskopf, As Counsel Of

Record For Pltfs 1 , with brief, Exhibit A, Motion To Withdraw As Coun
sel Affidavit filed. (To NE 3/9)
15 PRDER filed GRANTING movants' request for waiver of the notice

~equirements of Rule 71.7 & GRANTING the request of Howard Moore, Jr

~ Elizabeth Rindskopf to withdraw as counsel of record for pltfs.

~opy to counsel.

16 Defts' brief in opposition to waiver of Local Rule 71.7, filed.

rr"o NE.

May 11 ORDER that defts' brief in_oppostion to waiver of Local Rule 71.7

be treated as a motion to reconsider, DENYING same,filed. c.c.

"

ORDER that pltfs. submit within 20 days a memorandum outlintmg

the remaining issues, etc. & defts. have 10 days thereafter to

submit a~similar memo, upon the requested memo & the 1975-76 HEW

report this case will be put in a position for resol~tion of pendin~

issues, filed.c.c. & c. to Regional Director of HEW.ACK

June 3 Pltfs' memo of issues remaining for Court resolution, fil~d.

15 SUBMITTED PER ORDER OF 5-11-76.

25 Defts. memo of issues to be resolved, filed. to NE

JLY 2

Letter dtd 6/14/76, with report showing number of teachers to be

employed in Dekalb School System for Fall of 1976, fi~d. NE 7/8

14 Pefts' report shm'ling the expected number of students per school for

".I,,

~pcoming year, etc., filed. NE

·- ..:·~.

Report from Dept. HEW re investigation of effect of school Eone

~hanges in DeKalb County, filed. NE

16 ORDER by CAM APPROVING the request of atty. Donald P. Edwards for

leave of absence during period of 7-19-76 thru 7-30-76, filed.c.c.N1

·uly 29 Notice to counsel setting for hearing on all pending matters on

August 23,1976 at 2:00 P.M.

UG. 11

Deposition Subpoena To Produce Documents & Things To William s. Adam~,

with acknow$edgment of service, filed. NE 8/12

Deposition uppoena To Produce Documents & Things To Joe Renfroe,

filed. NE 8/12

.,
j

16 Deft. DeKalb Co. Bd. of Education's motion to determine whether

action may be maintainted as a class actinn & to determine the

status of the Movant-pltfs. Monica Rocker, et al with bri~f, filed. NI

Deft. DeKalb Co. Bd. of Education's motion to quash & motion for

protective order with brief, filed. NE

-

Defts. memo in opposition to pltfs' motions for supplemental relief

& for preliminary or permanent injunction, filed. NE

Defts. objections to movant's request for production of documents,

filed. NE

OVER

DAl'!J
197b Aug. 18

by AJH for NE

PROCEEDINGS

\

Dau
J'udgy

ORDER/that pltf. shall proceed with the taking of' depositions of' William Adams & Joe Renfroe, DENYING the motion to quash the taking of depositions; GRANTING the motion to quash in reference to the 1 production of documents except that pltf. shall have the opportunit to examine the documents at a place designated by defts. & may copy same at e ense of ltfs. filed. c.c.

on p s mo on or nJunc ve re e • our ver a y
defts. motion to dismiss. Counsel to prepare order & submit for

signature. HEARING on question of Teacher ratio in the School syste •

Court stated he would enter an order in this matter. 26 HEARING cont: Court took up matter of M to M transfers. Exhibits

admitted.

30 HEARING cont: Continuation of M to M transfers~and on Teacher Placem nt

School District Lines. Exhibits admitted.

31

RING cont: cont. ob question of Teacher Placement & school lines.

Entire case taken under ednsideration. Pltfs. have 3 days to file

affidavits. Parties have 10 days to submit brief's, 3 days to file

any response desired. SUBMIT at end of this time. Court retained

exhibits.

!pt. 2 SUBMITTED ON DEFT. DEKALB CO. BD. EDUCATION'S MOTION TO DETERMINE

ETHER ACTION MAY BE MAINTAINED AS A CLASS ACTION & TO DETERMINE

HE STATUS OF THE MOVANT PLTFS. MONICA ROCKER, ET AL
13 eft's supplemental brief concerning boundary line changes made mn

chool attendance zones with attachment,, filed. NE'

15 SUBMITTED PER ENTRY OF 8-3l-76. ·

·

17 8teno notes of proceedings had starting with 8/25/76, filed.

t. 8

Deft's objection to substitution of parties, filed. NE

14 Motion of Rebecca Henderson to Substitute Parties w/brief and

proposed order, filed. (To NE 10/18/76)

29 SUBMITTED ON MOTION OF REBECCA HENDERSON TO SUBSTITUTE PARTIES.

rov. 3 Opinion allowing intervenors/to Intervene and Certifying Class Actio

Under Rule 23{b){2) and ORDER as toM & M Program{See Order for

deails, filed. (Copy to Counsel 11/03/76)

·

tt ORDER Granting Motion of Rebecca Henderson to be substituted as a

pty pltf representing herself ana her minor children - Substitured

Richard Henderson by Rebecca Henderson, filed. (Copy to Counsel 11/3

4 Affidavits for use in lieu of incourt testimony, filed.

1

Affidavit of Mrs. Richard Henderson;.filed.

17

Pltfs' Motion to Aler or Amend Order w/brief, Affidavit of Claude
c. George, Jr. and Proposed Order, filed.

sc

24
Dec. 2
1977 .n. 10
31 b. 7
lo

Defts.' Memorandum in opposition to Pltfs' Motion to Alter and Amend

Order of 11/03/76, filed.

·

·

SUBMITTED ON PLTF'S MOTION TO ALTER OR AMEND ORDER OF 11/03/76.

II

Pltfs' selection of members to the Bi-Racial Committee, filed.(TO ) "

Defts' Counsel (Gary M. Sams) letter toNE with breakdown of studen s

in DeKalb Schools by race amd by grade a&d breakdown of teachers

employed by school and race, filed.

II

ORDER GFANTING pltfs' motion to amend order of 11/03/76 to the

extent enunciated in order, filed. {Copy to Counsel 2/01/77)

"

Defts' nomination of members to the Bi-Racial Committee~iled

II

Deft!s memorandum ~n opposition to certain mamed indiviauals being

appo~nteo to the Bl-Rac~l Committee. filed.

II

CIVIL DOCKET CONTINUATION SHEET PLAINTIFF
WILLIE EUGENE PITTS, ET AL

DEFENDANT
JIM CHERRY, ET AL

DOCKET NO. - - PAGE _ _ OF _ _ p,

l~ATE 77 NR.

PROCEEDINGS

Feb. 2S sc Proposed sti~ulation ext. time th~u 4/5/77 for pltfs to respond 1 defts Memorandum in Opposition to certain named individuals bein€ appointed to the Bi-Racial Committee, rec'd. (ToNE for his cons: ration 2/28/77)

Mar. 3 II Pltfsf Memorandum in rewponse to Defts' objections to Certain of of pltfs' nominees to the Bi-Racial Committee, filed. ToNE
4 skb Letter dtd 3/4/77, from Roger Mills re:bi-racial committee, fi~c

Ne 3f'l1./77)

® 30 sc ORDER that ct designates the following people to serve as memberf

' •··'

the bi-racial committee which shall oversee the operation of the county's M-To-M program and shall review all proposed school zonE

changes or school site purches(see order for names); further dej

shall designate a member of tts administrative staff to serve as

ex-officio member and liason between the school board and the cor

ttee; defts to notify individuals listed so that the committee ~

convene as soon as possible, filed. (Copy to counsel 3/30/77)

Apr. 12 sc Letter from potential members of biracial committee, rec'd.

II Defts 1 Motion to Alter or Amend Order of 3/29/77 w/Brief, filed.

15 " Pltfs' Response to defts• motion to Alter or Amend order dated 3
filed.

II SUBMITTED ON DEFTS 1 MOTION TO ALTER OR AMEND ORDER OF 3/29/77.

18 II ORDER DENYING defts' motion to a~er or amend the 3/29/77 order

ORDERING defts to convene a meeting of the bi-racial committee b;

g May

II II

h~fb~t2RL17ettf~i~l~e€d~~t_~!~C~olpiy8tio~rC8~oiu£n§serl5~4~/1r8g1y737¥)7t9;Mfi~~a~cat~.ons, fi:

July 1 " Pltfs' proposed order for Bi-Racial Committee Guidelines, rec'd.
(TO NE w/cpy of dkt sheet for his consideration 7/5/77)

Aug. 4

cp Pltf's motion for Award of Attorneys' Fees, Costs & Expenses with brief, filet (To NE)

Aug. 12 cp Deft's proposed Procedural Guidelines, filed.

Aug. 19 cp · SUBMITTED ON PLTF'S MOTION FOR AWARD OF ATTORNEY FEES

Aug. 18 II
' .''Oct. 3 cp

Pltf's Supplemental motion for Award of Attorneys' Fees, Cost & Expenses, __
with brief, filed. (NE) ~- ..· . . ·. · ,( ~... /J·- .;::.:_.. · Pltf's Memorandum to the Court, filed. To NE

Oct. 3 II HEARING: Cause came on for hearing on motion of pltf. and the Bi-Racial commi

to cause the School Board not to put into effect the present plans for moveme1

of students in certain schools in the District. Court took the matter under

consideration.

Oct. 4

cp ORDER that the defts. shall have until 10/10/77 to file their responses to pl:

motions for the aTvard of atty's fees, cost & expenses, filed. (Copy to counse:

Oct. 6

" ORDER APPROVING the school board's proposed zone changes, filed. (Copy to cou

loct. 14
. Oct. 17
t Oct. 26 Oct. 26
Oct. 26

II RESUBMITTED.ON PLTF'"S.MOTION FOR AWARD OF ATTORNEY FEES

cp Deft's Memorandum in response to pltf's motion for Award of Atty. Fees, Costs Expenses, filed. To NE

" Steno Notes of proceedings had 10/3/77

cp Stipulation to ext. time thru 11/7/77 for plts. to respond to defts Memorandtm

Response to pltfs' motion for Attorney's Fees, with ORDER ALLOWING, same, file (Copy to counsel) To NE

" Deft's ltr. in accordance with the 1969 Order, enclosing a report showing the

number of students , broken down by class & race, of students in each school,

filed. To NE

OVER

DC-111A (Rev.

::IVIL DOCKET CONTINUATION SHEET PLAINTIFF
WILLIE EUGENE PITTS ET AL

DEFENDANT
JIM CHERRY ET AL

DOCKETNO. __________ PAGE _ _ OF _ _ PAGES

j .P~f;

NR.

PROCEEDINGS

!Nov. 8
~ov. 30

cp Pltf's brief in reply to defts' Memorandum in opposition for an award of attys. Fees, Costs & Expense, filed. To NE
" Deft's interrogg. & Request for Prodcution of Documents, filed. To NE

Dec. 1

" 4 Deft 's racial makeup of teachers in DeKalb School System in ~ccordance with order ~ of 1969, filed. To NE

Dec. 12 cp Pltf's motion for Protective Order with brief & affidavit, filed. ToNE

Dec·• .:.6 cp Deft's motion to defer consideration with Memorandum, filed. ToNE Dec. H 11 Pltf's addition response of to pltf's motion for Protective Order,, filed. ToNE

Dec. 27 II ORDER AWARDING atty's fees and expenses to pltfs in the amount of $12,000.00.

DENYING pltfs' motion for a protective order and defts motion to defer, as MOOT,

1978

filed. (Copy to counsel)

Jan 6 cp Pltf's motion to Clarify & Alter Order of 12/27/78 with brief, filed.

12

sm Letter dated 1-10-78 re: death of atty. Candler, filed.

Jan 18 cp Deft's brief & response to pltf's motion to clarify and Alter Order of 12/27/77,

filed.

Jan 23 cp SUBMITTED ON PLTF'S MOTION. TO CLARIFY & ALTER ORDER OF 12/27/77 Feb. 9 cp ~Y¥1?·; Ann Trippe Johnson's motion to intervene as a pltf., with brieL.iic.m·it-w~n

" for rule to show cause for contempt, with brief, filed. To NE ,-;:-, ·

/. ·

Feb. 21 cp Movant Pltf., Ann Trippe Johnson's Amendment to brief in support of m~tion to

show cause why defts should not be held in contempt., filed. ToNE

Feb. 22 cp Pltf's response to motion to intervene & motion for Rule to show cause for contemp

lfiled.

Feb. 23 "

SUBMITTED ON MOVANT-PLTF. ANN T. JOHNSON'S MOTION TO INTEVENE AS PLTF. & MOTION
FOR RULE TO SHOW CAUSE FOR CONTEMPT 5-tD·1l : -,.~-~'/

lar. 2

cp Stipulation ext. time thru 3/10/78 for pltf's to respond to Movant Ann T. Johnson

motion to intervene as pltf. & motion for rule to show cause for contempt, with

ORDER ALLOWING same, filed.

MAR. 13 lc

28 dw

Apr. 14 sm

Apr. 18 cp

May 3

cp

Defts.' Response to Intervenor's Motion to show cause for contempt and Motion to Intervene, with affidavit, filed. TO NE ORDER Awarding pltfs $13,465.00 in attorney's fees plus expenses of $491.46 and Court Costs, filed. (see order)cpy to counsel. NE Pltfs' motion for supplemental.::fetief with brief in support of and exhibits, file
Deft's motion to allow defts. 'to Change Attendance Zones with brief, filed. To NE
ORDER that issues(pltf's motion for supplemental relief & deft's motion to change
Attendance zones) be more fully developed and a hearing on these matters will be held on 5/15/78 at 10:00 o'clock a.m., Room 318, U.S. Courthouse, filed. (Copy to

May 10 May 15

ounsel) To NE cp ~ORDER GRANTING Ann T. Johnson's motion to Intervene as pltf.; Hearing will be helc
on 5/15/78 at 10:00 a.m., Room 318 (at which time pltf's Ann T. Johnson's motion for rule to show cause for cOntempt -will also come before the court), filed. (Copy
to counsel) To NE cp ~EARING: Cause came on for hearing. Hearing on question of closing Heritage School
~espondents EXHIBITS NO'S 1 thru 8 ADMITTED; Hearing on addition to Flat Shoals School. Hearing on petition to intervene by Ann Tripp Johnson, and Martin Chitwood counsel for Intervenor. After arguments, the Court directed the School Board to
pay the intervenor expenses for transp. to & from school and to work out the mattet
ifor the future w/out having to file a petition of this kind in the Court. ~earing as to the Authority of the Bi-Racial Committee and of the School Board.
The Court stated that he would pass an order in the very near future on all these ~uestiongs heard this date, except the matters of the Intevenar and the authority pf the Bi-Racial Committee, no ruling will be necessary in this regard.

(NE retained file.)

CONTINUED

PAGE #6
CIVIL DOCKET CONTINUATION SH.~""O::T

PLAINTIFF

----..,.-~D~E:-:::F~=E:-:-N:-:::0:-::A-:-NT

WILLIE EUGENE PITTS, et al.
NR.

JIM CHERRY, et a1.
PROCEEDINGS

.l...L7'""tV
DOCKET NO. ll9(f•
PAGE_2_0F__L.PA

~ May 19 \2)May 23
May 30 May 31 June L. June 8
12 12
13
June 22 June 26 June 30
July 7
July 7 July 12 July 14
GAug. 2 Sep 6

~-

.

-

. ; '

Sep. Sept.

18 28

Oct. 3 5
~ 2/ 26
~ Nov. 6

7

15 13/

sm Steno notes of 5-15-78, filed.

cp ORDER DENYING pl tf 's motion for Supplemen.tal relief; GRANTING deft's motion tc allow a change of attendance zones; DENYING Intervenor's motion to hold defts contempt, but defts. are DIRECTED to compensate intervenor for the cost of transporting her child to Meadowview after 5/15/78, filed. (Copy to counsel)

cp Deft's motion to Alter & Amend Or.der of 11/3/76 with brief, filed.

"

Transcript of proceedings had 5/15/78, filed. \101, \~

---------------~

cp l:'lt:r s mot:~on t:o .runena .;uogmenL. w~L.n or~et, !~lea. It Pltf's Supplement to brief in support of motion to Amend, filed.

sm Steno notes of May 15, 1978 hearing, filed.

sm P1tfs' response to defts' motion to alter or amend order of 11-3-76 with att;

ments, filed.
sm SUBMITTED ON DEFTS' MOTION TO ALTER & AMEND ORDER OF 11-3-76.

cp Stipulation for ext. of time thru 6/26/78 for defts to respond to pltf's mot: to Amend Judgment with ORDER ALLOWING same, filed. To NE
t; Deft's brief in response to pltf's motion to Amend Judgment, filed. ToNE

r..p Deft's motion for ext. of time thru 7/11/78 to respond to pltf's response, to

defts' motion to Alter or Amend Order of 11/3/76, with brief, wttb proposed o

"

fil~d. To NE

.

cp Stipulation for ext. of time for defts to respond to pltf's response to defts motion to Alter or Amend order of 11/3/78, th~u 6/30/78 with ORDER ALLOWGING

same, filed. (Copy to counsel) To NE

L

cp Deft's documents showing the number of teachers by school, grade & race, w~licl

DeKalb County Bd. of Ed. anticipates will be emplo¥ed for the fall Semestc.,rl

cp Deft's supplemental & responsive brief, relating to motion filed by defts 5/3(

filed. To NE

cp SUBMITTED ON PLTF'S MOTION TO AMEND JUDGMENT.
cp Pltf's response to defts' Supplemental brief, filed. ToNE
pk ORDER DENYING Pltfs' Motion to amend court's order of May 23, 19~
and GRANTING in part and DENYING in part Defts' Motion to alter c
amend court's Order of 11-3-76~ DIRECTING defendants w/in 10 day1
to advise all parents of special education students in wri~ng oj
option of M-to-M program, filed. cc 9-7-78.
dw Pltfs MOTION to Alter Judgment, w/Brief, filed •

cp Pltf 's counsel, Dona~d P. Edward's petition for Leave of absense from 10/4/78 thru 10/20/78 with proposed order, filed. (To NE for approval)

dw Defts Brief in Opposition to. Pltfs Motion to Alter Judgment, filed.

5UBMITTED ON PLTFS MOTION TO ALTER JUDGMENT •.

ORDER Granting Atty Donald P. Edwards request for leave of absence, filed. (c

ORDER Denying pltfs' motion to alter or amend the court's order of Sept. 6,19i filed. (c to c)

PLTFS' NOTICE OF APPEAL, filed. (fee & Bond .requested) cpy to Counsel & cert. cpy of Notice & Docket to u.s.c.A.
~etter dated Nov. 2, 1978 from Atty Gary M. Sams, w/copy of elementary school

and high school map, filed. (placed loose in file)

Defts' Personnel report for the DeKalb County School System,per order of 1969 Stipulation waiving bond tor costs on appeal, filed. to NE for approval.(nge~~ Pltfs' Suggestion that Successors in Office be Substituted, w/Proposed order,
Pltfs' Designation of Portion of Record and Statement of Issues on Appeal, fi

(CONTINUED)

DC-IIlA REV. <1/7!

CIVIL DOCKET CONTINUATION SHEET PLAINTIFF
WILLIE EUGENE PITTS, ET AL

DEFENDANT
JIM CHERRY, ET AL

F"PI·MI-3 14.75 50M·35ll
DOCKET NO. 11946
PAGE _OF__ PAGE:

NR.

PROCEEDINGS

Nov 30 sam

De·~. 8 dw

1979 Jan

24•

~

1sam

Feb 05 II

ORDER that James H. Hinson, Jr has been duly appointed as Superintendent and th John W. Truelove, John I. Ramsey, Frank B. Jernigan, Joe Willingham, George R.
Fellows, David Williamson & John E. Fletcher, Jr. are presently duly elected me
of the DeKalb County Board of Education be substituted as defts in place of named defts, their predecessors in said office, fld. cc RECORD ON APPEAL mailed to u.s.c.A., certified mail r.r.r.,Parties notified)ACK
Stipulation to supplement recond on appeal, filed. Defts' motn to alter & amend order, w/brief, fld. SUBHITTED ON DEFTS' MOTION TO ALTER & AMEND ORDER.

Feb. 08 cc Mar. 7 pld Mar. 08 cc
Apr. 12 cc

Pltfs' response to Defs' motion with affidavit of Oscar Kirk, filed. NE SUPPLEMENTAL RECORD ON APPEAL, mailed to USCA ACK (ACK)
Letter of Gary M. Sams re minutes of the meeting of the Bi-Racial Committee helc on Feb. 5, 1979 with copy of minutes, filed.
Defs' motion to alter or amend Order dated March 29, 1977 with brief, filed.

18 sam 05 II
~May 9 ln

Pltfs' response to defts' motn to replace Bi-Racial committee member, fld. HEARING: On defts motn to alter or amend order of court as to M to M Transfers. Evidence by the deft, witnesses sworn. Deft Movant exhibits #1 thru 16 APMITTED (no #14). Evidence by the pltf witnesses sworn pltf exhibits 1 thur 9 ADMITTED. Court took the matter under consideration & allowed cnsl one week to file briefs if they desire.
ORDER DENYINGin part & GRANTING in part defts. motion to alter or amend, and the deadline for registration in the M-to-M program is ext. til 6-4-79 for this ~ear only, filed. c.c.

Letter from Charles L. Weatherly dated 4-12-79, filed. Letter from Roger Mills dated 4-10-79, filed.

21 sam Roger Mills note of w/drawal as co-cnsl for pltfs, rec'd.(Atty notified that he did not comply w/local rule)

31 II ORDER that defts' motn to alter or amend ocder of 3-29•77 is GRANTED & Mr. Maywe· is APPOINTED, to the Bi-Racial Committe, fld. cc 6-1-79

Aug 08 23

" Certified copy from the USMC that the judgment of the District Court is affirme
It is further ordered that the pltfs-appellants pay to the clefts-appellees the costs on appeal to be taxed by the Clerk of this court, fld. cc
!lO II Transcript of proceeding had on 4-5-79, fld. \JO\.

oct. 4 1980
May 22

sm Steno notes of proceedings held 4-5-79, filed.

sch lLetter

dated-5~16-,80

toNE

from Gary M.

Sams

RE:

Boundary

line

.J -

----------

agreement.

July 11 dw Aug. 2( Oct. 2~ Nov 13 sh

REPORT of DeKalb County School System pursuant to order of June 1969. NE -Noted & ~EPORT of Glen Haven Elementary School & Rowland Elementary School pursuant to )rder of June 1969. NE-Noted & retn'd
LETTER from Judge Edenfield to Mr. Sams dated Aug. 18, 1980 re: Redan Elementary or the new Mainstreet SCHOOL, w/attachments. REPORT of Gary M. Sams , .pursuant to order of June 12, 1969. NE
~3TTER dated Oct. 27, 1980 from Judge Edenfield to Gary M. Sams re: Bi-Racial Cow ~EPORT of Gary M. Sams re: D~Kalb County School System. NE
ANNUAL REPORT of the Bi-Racial Committee.

~~ Jim. 8 mjw ORDER transferring case from Judge Edenfield to Judge O'Kelley. c.c. l/20/81.

'

22 pp NOMINATIONS by Pltf to Biracial Committee & RESPONSE to defts nominations w/atta

OC-IllA REV. (1/751

WlLLlt tUGtNt PillS, ET AL

vs

JIM CHERRY, ET AL

pg. 7

D. C. llOA Rev. Civil Docket Continuation

l~

PROCEEDINGS

J

April 8

ORDER that the court wishes to hear from the parties on the petition to increase size of the committee by two seats and to confer w/both sides about the status o
case & the futrue course of the committee. The Court will set a conference for 1
at 10:00 AM in chambers. The Court will defer consideration of the two extra se t
the committee until after that conference. cc &eod 4/9/82.

AUG 18 Pltf picked up Exhibits.pp OCT 26 Deft picked up Exhibits.pp

1983

~1ay 5

pi

Jul 22 \ug 5
\ug 10
lug 25 pi

J 26
J 29 J 30 J 31
~t 8
Oct 6 tlc

MISC CONF: CT discussed with those present the issue dealing with the cap put o

the total number ~ of students to be aceepted into Lakeside High School

via transfer under the majority to minority rule. Also discussed the Briarcliff

and Henderson Schools being alternate schools. Also discussed adding to replace

ments to fill the vacancies on the BiRacial Committee

REPORT TO COURT as to Change of attendance Zones

SUGGESTION for SUBSTITUTION of Parties w/prop order by pltf

MOTION by pltf for prel inj and MOTION for Supplemental Relief

ORDER that Court will hold an evidentiary hearinB on pltfs Motion for prel inj

at the first available date

cc 8-1 I

NON~Y TRIAL on pltfs motion for prel inj and for additional relief: ORDER

substituting party defts~Robert Freeman, Superintedent be substituted in place

of James Hinson, Jr., that Lyman Howard, Nonna Travis, and Phil McGregor be
substituted as deft DeKalf County Board of Education members in place of John T e· love, Ray Jackson, and Claiborne Powell , fLD: cc 8-31
NON~Y TRIAL- CONTi EXHIBITS AI::MI'ITED NON~Y TRIAL CONT: Defts BRIEF IN OPPOSITION to pltfs Mot for prel inj and Mo

for supplemental relief, FLD;

NON-JURY TRIAL CONT:
NON~Y TRIAL CONT: Pltfs MEMORANDUM of points and authorities on majority to
minority transfer provisions, FLD: cr made oral findings into the record-writte opinion will follow (exhibits retained by cr, also file) MEMORANDUM OPINION that Court is compelled to grant relief to the pltf; cr

confirms its oral order of Aug 31, 1983 Directing deft DeKalb County School Syst

to accept students on the M to M waiting list for attendance at Lakeside up to

Maximum enrollment of 1595

cc 9-8-83

STENO NOTES of proceedings had Aug 25, 1983 &Aug 29, 1983.

Oct 18 p'
Nov 17 j Dec 27 '

ORDER APPOINTING the following to Bi-Racial Conmittee: Juanita Boranco, Cheryl
Espy, Archie Webber, and John c. Kapsaroff; Ct will appoint additional members
at a later date and will establish terms for all members at that time. cc 10-19 MOTION by Donald P. Edwards atty for pltfs, for leave of absence 12-9-83 thru 12-29-83 w/proposed order, attachment, (WOK for approval)
SUBMI'ITED ON MOTION BY DONALD P. EDWARDS, ATrY FOR PLTFS, FOR LEAVE OF ABSENCE
12/9/83 thru 12/29/83

29 ' ORDER D:El-..TYING rnotionby Donald P. Edwards, a tty for pltfs, for leave of absence

12/9/83 thru 12/29/83, c/c & EOD 12/30/83
1984

Jan 11 jcrn
.23 II 24 II
30 II

Cpy of order of 12/20/83 to Donald P. Edwards ret'd, "unable to forward"

MOTION by HOLD for leave to Intervene, f1emorandum, proposed complt (WCO)

MOTION by FOR to Intervene as a pltf, brief, proposed complt

(WCO)

MOTION bu HOLD, Movant-Intervenor, for expedited hearing, memorandum (WCO)

"COtlTINUED 11

Page 8

DATE
1984
Ja~
Feb l
2 3 6 9 10
22
B; 22
@ 29
flar 23
@
29 A.pr 3
9
12 12 18 18 21 26

PROCEEDINGS

D&t Judg

jcm HEARING: on pltfs• verbal motion for a continuance of trial; Ct DENIED pltf•s motion for a continuance; GRANTED the request of atty for HOLD permission to participate in deposition of Roger Mills to the limited extent to determine HOLD•s standing to intervene in the case, DENIED insofar as it may have related to the merits of the case.
II NON-JURY TRIAL: on the merits as to the issues relating to the Redan School District. (pltfs abandoned their request for relief as to the Knollwood Sch) Ct.GRANTED HOLD 1 s motion for an expedited hearing; after hearing oral argume ts
on HOLD•s &FOR's motions to interven, ct DENIED said motions at this time.
II NON-JURY TRIAL CON'T: pltf's EXHIBITS ADMITTED II NON-JURY TRIAL CON•T: defts• EXHIBITS ADMITTED II NON-JURY TRIAL CON'T: ct adjourned until 2/10/84 for oral argument II TRIAL BRIEFon behalf of defts
II NON-JURY TRIAL CON'T: Ct made verbal findings into the record denying relief requested by pltfs as to the Redan School District. Written opinion to follow. Exhibits retained by the Ct.
II ORDER ACCEPTING the resignation of Roger Mills as a member of the Bi-Racial Committee, Ct will not fill the vacancy and will not make any appointments to the Bi-Racial Committee until the conclusion of the current school year,
c/c &EOD 3/l/84
MEMORANDUM OPINION: directing the clerk to enter judgment in favor of defts and against pltfs; DENYING pltfs• motion for preliminary injunction on the Redan issue; prior to trial, counsel for pltfs abandoned the portion of the motion dealing w/Knollwood Elementary School, therefore no ruling required,
c/c &EOD 3/1/84 (pltf's exhibits, deft's exhibits &joint exhibits in exh. Roon
II JUDGMENT ENTERED that the Ct finds in favor of the pltfs as to issues relate to Lakeside High School as setforth in this Ct's order filed 9/8/83 and tha that Ct finds in favor of the defts as to the issues setforth in the Ct's
order of 2/22/84, c/c &EOD 3/1/84 II tiOTICES OF APPEAL (two) by pltfs from Order of 2/22/84 &Judgment of 2/29/ 4;
Pltfs appeal from the judgment only as to those issues contained in the
order of 2/22/84, including the denial of the disc requested (fees &bond not paid), ltr to Mr. Edwards requesting fees &bond, cert copy of dkt, Noti e Order &Judgment to USCA 3/26/84 A
os n on appea p
II BILL OF COSTS w/brief &attachments by pltf in the amt of $2,275.82, cc &eod 4/3/84
II COSTS TAXED in the amt of $2,275.82 for pltf, cc &eod 4/3/84
II MOTION by defts to review and disallow costs, brief II SUBrHTTED ON BILL OF COSTS OF PLTF AND DEFTS' MOTION TO REVIHJ AND DISALLOW
COSTS II Ltr from Donald Edwards, atty for pltf, designating record to be sent on
Appeal (notified atty that that consent of other party was needed) (WCO) II WITHDRAWAL OF BILL OF COSTS by pltf w/proposed order (to WCO for approval)
WITHDRAWAL OF A DUPLICATE NOTICE OF APPEAL by pltf w/attachment (to WCO for
a~~roval)
II ORDER GRANTING pltfs' withdrawal of Bill of Costs, cc &eod 4/23/84 II Ltr fro~ Donald P. Ewards &Gary Sams, dated 4/24/84, Designating Supplement 1
record to include transcript of proceedings dated Feb. l, 2, 3, 6, &10, 198 ,
Order dated 10/5/77 and Order dated 5/8/79 to be sent on Appeal

11 CDriTINUED

DC lllA (Rev. 1/75)
PLAINTIFF
Qi11ie Eugene Pitts, et a1

CIVIL.. DOCKET CONTINUATIOI'i -I"IEET DEFENDANT
Jim Cherry, et a1

.lJ DOCKET NO. PAGE~OF_

DATE

NR.

PROCEEDINGS

~
May 2 jcm
30 db June 12 db
20 db
22 jcm July 3 II
~ July 11 co
(ii' Aug 10 jcm
13 II 21 II 23 II

0~ 1

II

~2

II

Nov 8 II

1985 @Apr:lS sbh
® 23

~

l~\ 29

~ ~~ \J~b?J

July 3
10
19

a1 REQUEST by pltfs for transcri.pts re hearings on 2/1/84; 2/2/84; 2/3/84·, 21

2/10/84 '.It!\$,. ~a J

~'f •. J 6 ·+- d.b

MJ'l'l.UJ.'.J o:t pl:tts. :tor an a"W'ard o:t :tees ana cost:s Wfor~ei 6 ctl-Lcns.

BRIEF of deft. in opposition to plft's mot. for costs & atty's fees.

SUEMITI'ED ON MJTION OF PLFTS FOR AWARD OF ATI'Y' S FEES & CDSTS.

RECDRD MAILED 'IO USCA 11 VIA CERT. MAIL. (ACK) ACK SUPPLEMENTAL MEMORANDUM by plas in support of their motion for attys• fees

(WCO)

ORDER APPOINTING the Bi-Racial Committee to be constituted as follows: Juar

Boranco, Cheryl Espy, Archie A. Webber, and John C. Kapsaroff to serve on 1

Committee until 7/1/85; and Jay B. Goldman, the Rev. Jimmie L. Smith, Dr. ~

Stubbs, Judith A. O'Brien, and Bobbie K. Sanford to serve on the Committee
7/1/86, cc &eod 7/6/84 ORDER DENYING pla's motion for atty's fees &costs incurred in the "Lakesi

High School 11 phase of this action. copies served by jwe on 7/12/84

NOTICE OF APPEAL by plas from Order of 7/11/84 which denied plas• motion i
atty fees &costs (fees &bond pd) cert cpy of dkt, NOA, Order to USCA & ec

8/1 3/84 82-8662 CERT SUPPLEf.1ENTAL RECORD ON APPEAL to USCA, consisting of 1 vol. by cert rna

EXHIBITS (D-13, D-19, D-18, D-20, D-1, D-3) picked up by counsel for deft

Hand Carried to the U.S.C.A., 11th Cir. CONFERENCE: w/parties and the Bi-Racial Committee. Parties represented by D

Edwards, Gary Sams & Charles Weatherly. Also, Dr. Robert Freeman, f·1r. Strai

and Ms. Andrews were present. In addition thereto Ms. Juanita Baranco, Ms.

Espy, Mr. Archie A Webber, Mr. John C. Kapsaroff, Jay B. Goldman, Rev. J. L
Dr. Wytch Stubbs, Ms. Judith A. O'Brien &Bobbie K. Sanford, constituting t

Bi-Racial Committee as it now exists, were present.

MOTION by pltfs for injunction pending appeal w/proposed order

ORDER DENYING pltfs' motion for injunction pending appeal, cc &eod 10/3/84

STENO NOTES of proceeding had 8/23/84

CERTIFIED COPY of judgment from UScA AFFIRMING decision of USDC, and pltfs-
lants to apy costs, w/OPINON. (cc &eod 4-18-85)
CERTIFIED COPY of judgment from USCA (re appeal # 84-8286) received, reversi
&remanding case to district court, w/opinion, bill of costs.
PROPOSED order making mandate of USCA the judmgent of district court. (to WC

ORDER making mandate of USCA the judgment of district court. (cc &eod 4-30·
CERTIFIED COPY OF JUDGMENT FROM USCA that judgment of District Court is REVERSED and case is REMANDED to District Court for further proceedings in
accordance with opinion of this court, w/OPINION, BILL OF COSTS, &ORDER the
appellants• motion for award of atty's fees is remanded to district court fc
consideration at the conclusion of the litigation. (cc &eod 4-30-85)

CONFERENCE: Court directed counsel to file statements of their respective positions as to hwat the court is required to do, and to attach copies of U
briefs to 11th Circuit, no later that 7-12-85; clerk to submit thereafter.

STENO NOTES of proceedings held before Judge O'KElley 5-5-83, 8-31-83, 10-14-83 and 1-30-84.

SUBJIIffiD PER INSTRUCTIONS Of COURT AT COt4FERENCE 7-3-85, RE STATEMENTS Of

POSITIONS.

CONTINUED

DC lllA IRev. 1:75)
PLAINTIFF
PITTS, ET AL.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
FREEMAN, ET AL.

DOCKET NO. 11946

10 PAGE

OF_ _ PAGES

DATE

NR.

PROCEEDINGS \f ~ \.._ d_

1985 Aug.I3
23 Sept 20

sbh ORDER setting hearing for 8/23/85 @ 10:00 a.m.; action shall be resubmitted after hearing. (copies mailed by ct dep 8/13/85; eod 8/16/85) Court retained orig. file.
HEARING: plas to file briefs w/in 10 days; dfts to reply (days allowed for reply not shown on minute sheet); clerk to resubmit for ruling no later than 9/16/85. Court retained orig file. ·
SUB~HTTED PER INSTRUCTIONS OF COURT AT HEARING 8/23/85.

Oct. 9
@ 31
Nov. 21 Dec. 2

ORDER reappointing as member of the Bi-Racial Committee Archie A. Webber; appointing new members Elizabeth Hudson, Ralph Davis, Jr., Barbara DeBardelaben and Johnny Jones, with their tierms of office to run until July 1, 1987. (cc & eod 10/11/85) LUC. 0
ORDER that court DENIES plas• request to enjoin implementation of defts• plan
(cc &eod 10/31/85) JUD~·ENT EHTERED in favor of dfts &against plas, dfts to recover costs. (cc
& eod 10/31/85) EXHT. RETURN LETTERS mailed to counsel, rrr. ack ack Bill OF COSTS against plas in amount of $3751.30, by dfts. (counsel notified)

11

Dfts picked up exhts.

16

COSTS TAXED against pla in amount of $3751.30. (cc &eod 12/18/85)

" 1986 ~ Ja~l6 sg

tvlOTION for final dismissal w/memo by dfts.

;. ;.

28 sbh STIPULAITON approved by clerk ext time thru 2/6/86 for plas to respond to dfts•

motion for final dismissal. (cc &eod 1/29/86)

Feb. 4

Pla pickei up all exhts.

7

RESPONSE of plas to motion for final dismissal.

20

SUBMITTED ON DFTS MOTION FOR FINAL DISMISAL.

27

ORDER granting plas request for 3 months in which to conduct discovery; consider

tion of dfts motion for final dismissal is deferred until after disc. &the.

hearing which will be scheduled; motion to be resubmitted after hearing. (cc &e

2/28/86)

f~ay 27 30 sg
Jun 05 Jul 15 pi
16
30 Aug 11
12
Sept 19

STIPULATION of parties for order ext time period of disc, w/proposed roder. (to ~
ORDER ext disc thru 6/27/86. cc &eod 6/2/86 MOTION of plas to submit addt'l interrogs to dfts w/memo &attachments.
MOTION of pla to Compel dfts to Answer plas third set of interrogs
STATUS TELE CONF: Ct scheduled a pretrial conf for 9:30 Aug 8, 1986 & instructe counsel to be prepared to address any disc disputes &other matters
RESPONSE of dfts to Motion to compel dfts to answer plas 3rd interrogs
SUBMITTED ON PLAS MOTION TO COMPEL
ORDER that disc will end Oct 31, 1986; parties to submit a consolidated proposed
pretrial order by Nov 15, 1986; GRANTING plas mot to compel &plas motion to subm
additional interrogs cc 8-14
ORDER REAPPOINTING Jay B. Goldman &Ms Bobbi Sanford to membership of Bi-racial
Committee for DeKalb County School System; CT APPOINTS new members, Sarah G. Lao
Ronald D. Phillips, Timothy J. Sweeney &Ralph W. Wright; terms shall run until

July 1, 1988 cc 9-29

CONT

DC lllA (Rev. 1/75)

PLAINTIFF
WILLIE EUGENE PITTS, et al

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
ROBERT FREEMAN, et al

(.
DOCKET NO._ PAGElLOF_ _

DATE

1 ~

~r

-=-'

vv

Oct 24

24

31
Nov 5
7

12 17 17 17 19
21
26
Dec 5
10 11
1987 Jan 2

NR.
pi jms pi
jms pi

\l \..._ t PROCEEDINGS

~

~ \;\N\

ORDER ext disc thru Nov 15, 1986; PTO due Dec 2, 1986

cc 10-24

ORDER that Mrs. Sarah G. Looper is relieved from serving on Bi-Racial

committee due to a continuous conflict with that meeting date cc 10-24

NOTICE OF TAKING DEPOSITION of Robert Dentler

IN CHAMBERS MISC CONF: Written order to follow

ORDER ext disc only for purpose of allowing parties to depose three exper1

(1) Dr. Walberg (2) Dr. Dantler (3) Dr. Cole; any disc matters other thar

must be concluded by Nov 15, 1986; parites to submit prop PTO one week bE

trial if trial is held on currently scheduled date of Jan 20, 1987 (see c

for details) cc 11-11

NOTICE to take DEPOSITION of DR. JOHN KICKLIGHTER by pla

REQUEST of pla for an ext of time to complete disc and for resetting of de

for hearing on Motion for Dismissal

NOTICE of appearance by Kathleen L. Wilde for pla

Letter dated Nov 14 to WCO from plas re: termination of their lead atty

MOTION w/brief requesting permission to withdraw as attorney of Record fo pla;ntiffs by Attorney Donald Edwards

HEARING on plas motions filed Nov 17, 1986; dfts MEMORANDUN in opposition motions of Nov 17, 1986, FLO: written order to follow MOTION by plas to require dfts to produce data requested in plas 4th inter
&for reconsideration of motion to ext~disc &reschedule hearing date

REPLY of dft to plas motion to require dfts to produce data in merged fo
for reconsideration of motion to extend disc &reschedule hearing date REPLY BRIEF of pla in support of motions for merger &Reconsideration
ORDER GRANTING atty Donald Edwards motion to withdraw as atty for plas; GF plas request that the hearing date on dfts motion for final dismissal be rescheduled for April; DENYING plas request for production of docuents cc

NOTICE to take DEPOSITION of ROBERT DENTLER by dfts

26 er STENO NOTES of proceedings held on 2/1/84, 2/2/84, 2/3/84, 2/6/84, 2/10/84

,,

10/2/84 and 8/23/85.

Mar 12 pi STIPULATION re: disc

27

IN CHAMPERS RRETRIAL CONF: CT will enter pretrial order

31

ORDER re pretrial conf; trial on pending motion will take apprx 13 days be

July, 1987; attached are dfts proposed pretrial order &plas outline of t

case. CT will consolidate these documents to form pretrial order; The Ct

approves these documents as consolidated as the pretrial order of the Cour

cc 4/7

Apr 2·
May 8
June 29
30 Jul 1
2 -6

er STENO NOTES of proceeding held on 10/23/86.

Case is set for trial on dfts Mot to Dismiss at 9:30 am July 6, 1987 (non-

approx 2 weeks)

pi Letter dated June 26 from Kathleen L. Wilde to LOT re substitute portions PTO, rec•d

Letter dated June 29 from Gary M. Sams to LDT re supplement to dfts PTO, re

MOTION of Amicus Curiae League of Women Voters of DeKalb County for leave t

file brief

TRIAL BRIEF of pla in Opposition to dfts motion to dismiss

NO~~JlJRLJRlAl..,. 9f.t f:.¥~JBIJS ADMUJEQ_ I ..- ...

. -!

DC lllA (Rev. 1 75)
PLAINTIFF
willie eugene pitts
NR.

CIVIL DOCKET CONTINUATION SHE!::.
I DEFENDANT
Robert R. Freeman
PROCEEDINGS

DOCKET NO. 11946
PAGE _OF__ PAGE!

July 8
9 6

7
13 14 15
16 20 21 22

r-

31

J ~,Jul 24

~ ~

Aug 10 24

Sept 4

25

NONJURY TRIAL CONT: Verbal f10TION by plas to exclude dfts exhibts 89-94, 105, 110-119 and 137.motion DENIED
NO~ JURY TRIAL CONT: pl as EXHIBITS admitted rm PROPOSED findings of fact by dfts'. (WCO) 11 PROPOSED conclusions of law on motion to dismiss by dfts'. (WCO) 11 PROPOSED findings of fact and conclusions of law by plas'. (WCO)
pi non jury trial NON JURY TRIAL CONT: NON JURY TRIAL CONT: NON JURY TRIAL CONT:
NON-JURY TRAIL CONT: NON-JURY TRIAL CONT: NON-JURY TRIAL CONT: NON-JURY TRIAL CONT:: CT allowed dfts 20 days after receipt of transcript to fi posttrial brief; allowed plas 15 days after receipt of dfts brief to file are
Clerk to submit
er STENO NOTES of proceedings held on 07/13/87 and 07/16/87.
pi MOTION by pla for supplemental relief w/brief
pi RESPONSE of dfts to plas motion for supplemental relief SUB~1ITTED ON PLAS MOTION FOR SUPPLEMENTAL RELIEF ORDER DEFERING ruling on plas mtoion for supplemental relief until CT rules
on dfts motion for final dismissal cc &eod 9/10
er STENO NOTES of proceedings held on: 07/16/86, 08/08/86, 12/05/86,
11/21/86, 03/27/87, 07/01/87, 07/06/87, 07/07-08-09/87, 07/14/87, 07/15/87, 07/20-21-22/87.

Sept 25 pi TRANSCRIPT of proceedings had July 9, 1987

Oct 13

PROPOSED AMENDED-FINDINGS OF FACT by dft

13

POST TRIAL BRIEF of dfts in support of their motion for a declaration of unitar:

status and for final dismissal

oct 28

MOTION by pla to require dfts to file Junior High plan

28

POST TRIAL BRIEF in opposition to dfts motion for declaration of unitary status

Nov 9

final dismissal REPLY ?f dft to plas post trial brief in opposition to motion for a declaration of un1tary status and for final dismissal

9

BRIEF of dft in response to plas motion to require dfts to file Junior High Plar

16

SUB~1ITTED PER ENTRY of JULY 22 AND PLAS MOTION TO REQUIRE DFTS TO FILE JUNIOR

-r--~~~--~H~IG~H~Pul~A~N--~,~~~~

Ja~ ~8~2 j_b TRANSCRIP;S ofv~~~c:e~i~~s ~1· }u~-?~6-,17~,8~f.'\~;,¥(3~~1I12o, 21 &.22, 1g8if____ _

~-~"'.."+lAU-==n'-'-e--=::.;30=+---'11 - ORDERthat___DCS-S--st1a1Thave--optTo_n.. orimpl'errienting a-pian --t)y'9)88 or 9/89 to achi

~

Singleton compliance w/regard to both teacher &principal assignments. DCSS sh

1 file a report w/ct detailing the plan. DCSS shall attempt to equalize per pupil

expenditures among types of schools during 88/89 school year. W/in 2 mos of end

that school year, DCSS shall file report w/ct showing per pupil expenditures. D

Bi-Racial Committee is hereby abolished. Ct DENIES motion of defts to dismiss.
Ct GRANTS IN PART pltf's motion for suppl relief &DENIES motion to require deft

to file a Jr. High Plan. Local counsel picked up copies. cc

PJ.,h· RMESOPTOIONNSEbyoryldaefftosr toReRcolntfs'isdemraottiioonn wfo/rbrrieecfonins1.saeurpaoto1r.ot n.

"
11

SOURBDEMRiffDiDENYOINNGPLpTlFt'fS'sMOmToIOt1NonFOfRorRErCeONcSoInDs.1EaR~ArTa~O.1No.n.cc

.

11 MOTION of pltf for award of costs & atty s fc•es \"J/bn ef.

DC lllA (Rev. 1:75)

PLAINTIFF

WILLIE

EUGENE

PITTS,

C'T II I
L..l ML..

NR.

CIVIL DOCKET CONTJNUATIOI"l SHEET DEFENDANT

ROBERT FREEMAN, C'T II I &.... I rlL.. • PROCEEDINGS

\1 ~ i..._

1 1 DOCKET NO.~
PAGE 13 OF_

VSept 9
28
26
1
7
7
10 1989 Jan 06
9
12
20 23

jh ORDER CERTIFYING order order of 6/30/88 for interlocutory appeal. FURTHER ORDERED that consideration of motion for attys 1 fees id deferred; the dead for submission of supplements to the motion and response is suspended. cc
II NOTICE OF APPEAL by pltfs from order of 6/30/88 &order of 8/11/88. Fees
cc Cert c/dkt, NOA, orders to USCA. 88-8687 11 NOTICE OF APPEAL by defts from (portions of) order of 9/9/88. No fees pa·
cc Cert c/dkt, NOA, order to USCA. Ltr re fees sent. ACK by USCA 88-86: 11 A~~Ehl FEES paid re NOA nf 9/20/88 ::,y defts. USCA notifi~td 10/5/88 a.a..t.
11 FORTHWITH LTR re 88-8687from USCA.
" STENO NOTES of proceedings of 11/23/87 &9/8/88.
11 JOINT MOTION to designate previous orders as part of Record on Appeal w/br (to WCO for approval)
" Certified copy of order of USCA Granting petition for permission to appea suant to 28 USC 1291(b) w/cover ltr to counsel advising 2 separate filing are required. They have docketed one case as the main appeal and other a cross-appeal, but there is only one case number assigned to both. 88-877E
II APPEAL FEES paid by defts re 88-8775 USCA notified ACK II ORDER GRANTING joint motion to designate previous orders as part of the r
on appeal. (Orders of 6/12/69, 11/3/76 &10/31/85 should be made part of on case and transmitted to USCA) cc copy of this order &joint motion &
of 10/24/88 to USCA (brief details which orders are designated)
11 Letter dated 11/4/88 from J. Stanley Hawkins of Weekes &Candler stating
defts-~ppellees request that all of the exhs accepted into evidence by ct at hearing held from 7/6/ thru 7/22/87 be included in record transmitted tc
Ct of Appeals.
11 Fees paid by pl tfs re 88-8775 USCA rec 1 d money and forwarded it to us.
" FORTHWITH ltr from USCA re 88-8775 &88-8687
II NOTICE OF APPEARANCE of atty r4arcia w. Borowski for pltfs.
er APPEAL REXX>RD sent to USCA, consisting of one(l) vol of pleading, one(l) with orders filed 6/12/69, 11/3/76 and 10/31/85, two boxes of dft's trial
(Bulky) •.
er SUPPLEMENrAL REXX>RD OF APPEAL consisting of dft's trial exhibits ACK 1/1 jh ACK by USCA of receipt of record oo appeal.·~ ..
11 Letter from pltfs 1 atty Marcia Borowski advising that USCA has said recor« deficient in several aspects (1) No transcript of July ~87 hearings has n« included and (2) previous order which, by order of WCO on 11/1/88 were to designated part of record, have not been included.
er SUPPLEMENTAL REXX>RD 0 APPEAL consisting of twelve(l2) transcripts and pre\ order requested by plas' atty to be part of the record. ACK
jh Copy of motion to supplement or correct record &Appellant's motion to adj
i fin sched le which was GRANTED rec'd from USCA. 11 TRANSCRIPT of pr.oceedings before Judge O'Kelley on 9/8/88. \J~\, 3~ jh STIPULATION of dismissal w/prejudice of pltfs motion for awar ot~~c~os=t~s--c
attys' fees (filed 8/29/88), approved by WCO. (note from ct dep "copies i by counsel). C~rt copy to USCA. ACK

DC lllA (Rev. 1/75)
PLAINTIFF
WILLIE EUGEN PITTS, £T-·AL.

CIVIL DOCKET CONTINUATION SHEC;J" DEFENDANT
JIM CHERRY, ET AL.

DOCKET NO. 11946
PAGE ____l4:,F_ _ PAGI

DATE

NR.,

PROCEEDINGS

989

trl~uly 1) jh MOTION by pltfs for a TRO w/brief, affidavit and attachs. (to WCO) ~ v12 II MOTION by pltfs to enforce ct' s orders w/bri ef and attach. "

~,/13 II MOTION to intervene in limited remedial phases of this action (by Paula White,

Carl Wolford and all similarly situated other persons) w/proposed Complaint in

intervention) &memorandum

II

II

HEARING held on pltfs' motion for TRO (filed 7/12/89) Evidence by defts. Deft

will submjt to the ct by tomorrow afternoon a written report showing their

proposal 10 effect the teacher transfer

II MOTION to intervene (by Ramona Hooker, Mary Driskell, Blondcile S.-Walker, Jam

W. Pennington, and the Dekalb Assoc of Educators) w/brief & proposed Intervene

Complaint - Class Action:

_.~

MOTION of intervenors (Ramona Hooker, et al) for partial stay of ct's order o 6/30/88) w/brief

OBJECTIONS of pltfs to defts' plan w/attach. OBJECTIONS of pltf-intervenors Paula White, et al. to Dekalb defts' plan of
-...~,implementation for balanced staffing. ORDER DENYING pltfs' motion for a TRO; DENYING motion of Ramona Hooker, et al.
to intervene; DENYING motion of Paula White, et al. to intervene. copies serve
b ct de .

MOTION FOR RECONSIDE ION of 7/21/89 or er

& affidavit of Ramona Hooker.

II ORDER that on 7/25/89 court conducteds a telephone conference VI/counsel for al

parties, attempted intervenors and movants. Cousnel represented to ct that th

did not intend to file add'l written responses to motion for reconsideration.

Accordingly, movants' motion for reconsideration is DENIED. During telephone

conference, movants requested that they be served w/copies of defts' reports t

·rh,~ rt of their compliance w/ct's6/30/89 order. Defts agreed and are DIRECTED to mail said reports.and relevant.pleadings to counsel fof both groups who

attempted to intervene. copies served by ct dep.

II RESPONSE of defts to pltfs' motion to enforce court's orders VI/affidavit.

II NOTICE OF APPEAL& Request for expedited appeal by proposed intervenors (Ramona

Hooker, et al ). Fees paid. Appeal is from orders of 7/21/89 and 7/26/89.
cc &cert copy of dkt, NOA and orders to USCA. ACK 89-8612

1

II NOTICE OF APPEAL by proposed intervenors Paula White, et al.from order of 7/21

&-order of 7/26/89. No fees paid. Ltr sent re fees. cc cert copy of dot, NO

& orders to USCA. ACK 89-8612

II SUBMiffiD ON MOTION OF PLTFS TO ENFORCE CT'S ORDERS TC t!CO

II MOTION of intervenors· tRamona::Hooker, et al) to expedite transmittal of record.

w/brief and proposed order

II DESIGNATION OF RECORD by intervenors.

II ORDER Isigned by Judge Robert H. Hall) GRANTING motion for expedited processin~

of record on appeal in main action and ord~ring clerk to immediately transmit

·"s""-b'Lr:-

record to USCA (no later than 8/4/89) cc {clerk to send docs from 7/11/89 thru II MOTION by proposed intervenors White and Wolford for expedited processing of

record for purposes of appeal in main action. (this is motion referred to and

granted in 8/2/89 order - see ~bove entry)

·

7 er APPEAL RECORD SENT to USCA. consisting of one(1) vol of pleadings and one(l}

7 jh jh

~ v ..... • • • a:

. ~

~

vo l of transcr FORTHWITH ltr

ipt with order fi lerL from USCA re 89-8612

016f163tD1Io8nRto

expedited

was

granted.

PETITION for leave of absence for Kathleen L. Wilde from 8/4/89 to 8/17/89

'i:/ tiRDER, .signed by ct dP.p GRANT:"NG .snre. ct:

DC lllA (Rev. 1!75)
PLAINTIFF

CIVIL DOCKET CONTINUATIOL HEET DEFENDANT

WI'. LIE WGH;E PITT~, f.,.. Al..

DATE

NR.

ROBERT FREEMAN, ET AL.
JIMX«MKRRX¥XKIX~KX
PROCEEDINGS

jh FEES paid on appeal filed 8/1/89 by Paul White, et al. II ACK from USCA re receipt of certified record on appeal.

DOCKET NO._ PAGE _1!i>F_
USCA notified.

_,---..
(@ Dec. 11

·~
~

lob\ II
ec. 15 lob 21

ye s
II REPORT TO THE COURT by defts (to WCO) II MOTION by Kathleen L. Wilde, requesting permission to w/d as atty of reco
for pltfs. w/attachs &brief.
II ORDER GRANTING motion of Kathleen L. Wilde to w/d as atty for pltfs. Ord1 Kathleen L. Wilde be stricken as atty of record in the case. cc
II ORDER DENYING the pltfs' ·.· motion to enforce ct's orders (court conducte a telephone conference on 11/15/89 w/counsel for pltfs and defts. On issl reporting requirements, counsel for defts stated that the records were ave would be supplied by defts in format desired by pltfs)Accordingly pltfs' n as it concerns reports due by defts is DENIED as moot. Part of pltfs' moti requested an order directing defts to admit 3 students who requested M-tois DENIED as moot; Part of pltfs' motion requesting that Bi-Racial Committ reconstituted is DENIED subject to reconsideration if and when the captior has been finally considered on appeal. Upon oral request of counsel for pl ORDERED that the caption of this case be amended to show the defendants as R. Freeman, as Superintendent, and Elizabeth Andrews, Norma Bergman, Phil Lyman Howard, Donna Wagner, David Williamson and Paul Womack, as DeKalb Cc of Education members. copies sent 11/20/89
II CERTIFIED COPY OF JGMT OF USCA issued 12/8/89 and entered on their dkt 10; AFFIRMING in part; REVERSING in part the jgmt of USDC and REMANDING to US[ further proceedings in accord w/opinion of USCA. w/opinion attached. cc~
II CERTIFIED COPY OF JGMT (Nov. 3, 1989) OF USCA re 89-8612 AFFIRMING decisic USDC w/b/csts and return of orig exhs (one envelope and record on appeal (
II CERTIFIED COPY OF JGMTof USCA granting the appellants' motion for atty fee costs and REMANDING to the USDC for determination of the amount of the fee Proposed orders making mdnate the judgment of the USDC (to WCO)

20 II MOTION by pltfs for attys fees and costs w/attachs &affidavits &brief in

II ORDER making mandate the judgment of USDC signed by WCO. cc II ORDER making mandate the jgmt of USDC signed by WCO. cc (re appeal on attj

II REMITTITUR lETTERS sent to counsel.

II RESPONSE by defts to motion for atty fees and costs by pltfs.

II SUBMITTED TO WCO ON MOTION BY PlTFS FOR ATTYS FEES AND COSTS.

II MOTION by pltf-intervenors (General Counsel for the Ga. Assoc. of Educator~
intervene in remedial phases of this action w/memorandum &proposed Compla~

in Intervention. (WCO

~~_· Feb, 23 kjm STENO NOTES of proceedings held on 7/13/89 and 7/25/89.

7t.·· ~2~

jh RESPONSE of pltfs to complaint in intervention w/attachs.

l.f . ~ vd

jh MEMORANDUM of defts in response to pltf-jntervenors' motion to intervene remedial phases of this action.

26

II

SUBMITTED TO JUDGE O'KELLEY ON MOTION BY PlTF-INTERVENORS TO INTERVENE IN

rg' v26

PHASES OF THIS ACTION.

.

jh ORDER·~~ECTING defts to prepare and submit w/in 20 days of date of th1s or(

a proposal describing remedial action defts intend to take by beginning of

school year to comply w/order of USCA. cc

over

(Rev. 1 '75) PLAINTIFF
PITTS

CIVIL DOCKET CONTINUATION SHE( DEFENDANT
FREEfv1AN

DOCKET NO. 11946
PAGE l_§_oF__ PAGI

NR.

PROCEEDINGS

~~
~8
6J;~
(!j)vif
®~
16
@ 17
II

jh MOTION by proposed pltf-intervenors (black parents on behalf of black childrer to intervene or, in alternative, to create a subclass, w/notice of motion, (An memorandum in support, attachs and proposed Complaint in Intervention. (WCO)
II MOTION by defts for extension of time to submit report (referred to in order of 2/26/90) thru 3/30/90 (WCO)
II Proposed consent order extending time for pltf-intervenor Taylor et al 's time for replying to the responses filed in oppos. to the Taylor intervention motion
(to WCO for approval) II BRIEF IN OPPOSITIONby pltfs to defts motion for ext of time w/attachs. II ORDER byJudge O'Kelley GRA~TING defts' motion for an ext of time to submit repo
contemplated by the court s 2/26 order. Defts are directed tosubmit the requi report on or before 3/30/90. copies sent 3/10/90
II
REPLY BRIEF of pltf-intervenor Taylor et al to pltfs' and defts' opposition to their intervention motion. w/proposed Amended Complaint in Intervention. II SUBMITTED to Judge O'Kelley on motion by proposed pltf-intervenors (black paren on behalf of black children) to intervene or, in alternative, to crea~a subcla

II MOTION of pltfs' for ext of time to respond to proposed intervenors Armstrong ei motion to intervene and complaint in intervention (one week) WCO has dup.
II ORDER GRANTING motion of pltfs for ext of time to respond to proposed intervenot
(Armstrong, et al) motion to intervene. Parties shall have through 3/30/90 in
which to respond to submect motion to intervene. cc ORDER STAYING consideration of pltfs' motion for award of attys' fees (incurred during appeal of ct's order of 6/30/90) pending determination on the applicatioJ
for writ of certiorari. cc

ANSWER of pltfs to complaint in intervention (Armstrong et al.) w/memorandum & attachs. RESPONSE of defts to pltf-intervenors (Armstrong movants) to intervne or, in alt to create a. subclass, REPORT TO COURT ON STATUS OF COMPLIANCE W/CT OF APPEALS MANDATE, Junior High Pla and Bond Fund Expenditures by defts~w/Exh A being CITIZEN MAGNET SCHOOL PROPOSA

RESUBMITTED TO JUDGE 0 KELLEY ON MOTION BY PROPOSED PLTF-INTERVENORS (Armstrong, TO INTERVENE OR, IN ALTERNATIVE, TO CREATE A SUBCLASS.

OBJECTIONS of pltfs to defts' report filed 3/30/90 w/attachs. CONSENT ORDER extending time thru 4/20/90 for Ashley and B-Randi Armstrong, et a pltfs-intervenors, are required to respond to pltfs' and defts' response to pltf intervenors' motion to intervene or, in altern., to create a subclass. cc

II SUBMITTED ON DEFTST REPORT TO COURT ON STATUS OF COMPLIANCE W/CT OF APPEALS MANI
&ON OBJECTIONS OF PLTFS THERETO.
II
ORDERsetting case for conference at 10:00 a.m. on 4/25/90 re the motions to intervene by Ashley and B'randi Armstrong, et al and Rosalind Taylor, et al and

the report filed 3/30/90 by defts. cc by JS 4/17/90
II
REPLY BRIEF of pltf-intervenors Ashley and B'Randi Armstrong in support of thei

motion to intervene or, in altern., to create a subclass. w/attach.

DGE 0 KELLEY ON MOTION BY PROPOSED PTTF-INTERVENORS Armstrong

TO INTERVENE OR, IN ALTERNATIVE, TO CREATE A SUBCLASS.

II PETITION by Marcia W. Borowski for leave of absence from 5/25/90 thru 6/12/90

w/proposed order (to WCO for approval)

II

CONFE E E

t t' · rd r

17 90. Written order to follow.

, ot1ce to counsel by ct dep re setting of case for con.erence a~
II ORDER GRANTING leave of absence to ~1arcia W. Borowski fpr period of 5/25/90 thru 6/12/90. cc

DC lllA (Rev. 1/75)·
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

WILLIE :::UGLNE PITTS, ET AL

ROBERT R. FREEMAN , ET AL.

11'
DOCKET NO._ PAGEll_OF_

NR.

PROCEEDINGS

jh MOTION of defts that a hearing be held to determine the adequacy of curren· class representation
.. ORDER by Judge O'Kelley DENYING motion of Rosalind Taylor, et al. to inter as pltfs in the remedial phases of this action. Clerk is directed to mail of all orders entered in this case, beginning w/this one, to counsel for t proposed intervenors, Ms. Amy Togenberg. Parties are directed to serve Ms Totenberg w/copies of all docs subsequently filed in this case. Deft's mo for a hearing on the adequacy of current class representation, filed 4/26/ GRANTED. Issue of adequacy of current class representation and the motion Armstrong, et al to intervene or in alter. to create a subclass are schedu oral argument 6/25/90 at 10:00 a.m. Parties are directed to file their bri' later than 6/18/90. Clerk is DIRECTED to delete from caption of this case names of all pltfs except 11 Frankie Prather, a minor, by her guardian and n1 friend, CYNTHIA SCOTT, AND HER FATHER AND NEXT FRIEND, MAJOR SCOTT; PRINCE:
a minor, by her father and next friend, ROGERS MILLS. 11 cc «...

May 25 11 MOTION by pltfs to join or add parties (Mills, Scott and Dekalb NAACP) w/bl and affidavits.
jh Steno notes of proceedings of 11/15/89 and 4/25/90

kjm STENO NOTES for proceedings held 4/25/90.

jh MOTION by defts to reschedule hearing date, to ext discovery and to reset b

schedule . (to WCO w/note)

5 11 NOTICE by pltf intervenors Armstrong, et al to take depositions of BERTA MI
ROGER MILLS, MAJOR SCOTT. &CYNTHIA SCOTT.

II 11 MOTION by Armstrong intervenors for ext of timefor filing briefs as to the

adequacy of current class representatives and in response .to pltfs' motion

or join parties be thru 6/21/90 w/brief and affidavit of Kurt Peterson. (t<

~

w/note)

6

II
NOTICE by pltf intervenors Armstrong, et al to take depos. of: ZEPORA ROBEF

~;June 7

JOHN EVANS, COLEMAN SEWARD and PAT JONES. 11 ORDER by Judge 0 •Ke 11 ey GRANTING defts to reschedule hgr date, to ext disc

reset briefing schedule. Respoosive·briefs of defts and pltf-intervenors (A

et al) to pltfs' motion to join or add parties will be due 6/21/90; brief o

and pltf-intervenors on issue of adequacy of class representation (see, ord'

will be due on 6/21/90; discovery may continue until that date; pltf's mot;,

join or add parties is set for oral argument for 6/25/9.0 on issue of adequa.

class representation. Clerk is directed to submit pltf's motion to join or

add parties after the date of hearing on that motion. cc

\CJl 8 .. AMENDED NOTICE of pltf-intervenors Armstrong, et al to take depos of ROGER

IC1 12 15

II NOTICE by pltf Intervenors Armstrong, et al to take deposition of Major Bra

II REQUEST by pltf intervenors' for pretrial identification of witnesses w/bri

&~ffidavit of Kurt Peterson.

•

II MOTION by pltf intervenors for expedited hearing w/memorandum (to WCO w/no

Jul.y 6

II ORDER by Judge 0 •Kelley that in reference to Request by pl tf intervenors f: pretrial identification of witnesses a joint telephone conference was held 6/15/90 and motion was GRANTED and parties were directed to disclose to ea, identities of potential witnesses as soon as possible. Court rescheduled for 8/6/90 at 10:00 a.m. Parties and other participants are directed to f· on issue of adequacy of current class representation, on motion of Armstror to intervene or to creat a sublcass, and on pltfs' motion to join or add Pi no later than 7/30/90. Clerk is to RESUBMIT those motions after date of hf
kjm STENO NOTES for proceedin9s held 6/15/90.

DC lllA (Rev. l/75)

PLAINTIFF

PRATHER

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
FREEf-1AN
PROCEEDINGS

DOCKET NO. 11 946
PAGE _!§OF_ _ PAGE

__...-...-,
~~7
~
3
......--
w~ '
:@
@1.-r("

jh MOTION by pltfs to compel discovery, enforce court's orders, convene discovery conference, and appoint a monitor to assure flow of info and memoradurr. in suppo w/attachs.
11 SUBMITTED ON MOTION BY: PlTF INTERVENORS TO EXPEDITE HEARING.
II
II

II

II WITNESS LIST filed by defts for hearing scheduled to begin 8/6/90 (copy to ct

II MOTION of Southeastern Legal Foundation, Inc. for leave to file an amicus curia

brief w/brief in support and brief of Amicus Curiae.

II WITNESS LIST filed by proposed Armstrong Intervenors for hearing scheduled to

begin 8/6/90. (copy to ct dep)

II MOTION by pltfs for a prelim. inj, to enforce the mandate of the Court of Appea

and to enforce the orders of this court. w.brief and attachs. (to WCO w/note)

II NOTICE of pltf intervenors to take depos of: CHARLES F.BROWN, NAPOLEON HENDRie:

PATRICIA SLATER, ROSETTA BROWN, SAM WILLIAMS, RUBI BENNETT, BARBARA LEE, LOUIS

JACKSON, JEFFERSON CREEK, JR.

II APPLICATION for admission pro hac vice by EDWARD A. HAILES, JR. (fee paid) to

WCO for approval

II DEFTS' MEMORANDUM w/respect to matters to be heard on 8/6/90.

II BRIEFa defts in response to pltfs' motion to compel discovery, enforce courts'

orders, convene discovery, conference, and appoint a monitor to assure flow and

memorandum in support thereof, w/attach.

II BRIEF of Armstrong intervenor in oppos. to p·, ... fs • motion to add or join parties

II BRIEF of Armstrong intervenors re proper cl uss representati onwW[.UL.L.L.Gu;.R-._--.,

PLAINTIFF's PRE-HEARING memorandum of law, w/attach.

~~

~~·

MI

JU

ON MOTION BY PlTFS TO COMPEl DISCOVERY, ENFORCE COUI

ORDERS, CONVENE DISCOVERY CONFERENCE, AND APPOINT A MONITOR TO ASSURE FLOW OF If

11 NOTICE of depositionsby pltf intervenors re: ANIKA OLINGA, ALVIN DOLLAR, JENNE-

ROZIER, LOUIS THOMAS, MARJURI RICHARDSON, HELEN HENDRICKS, CAROL RICHBURG, LARR'

PARKER, PAT MAYKUTH, STEVE COLE, SANDY PURKETT, GWENDOLYN GLASS, JONNIE WAY.

11 RESPONSE of defts to pltfs' motion for a prelim. inj., to enforce the mandate

of the Court of Appeals, and to enforce the orders of this court, w/attach.

11 SUBMITTED TO JUDGE 0•KELLEY ON MOTION BY PLTFS FOR A PRELIM. INJ. TO ENFORCE THl

MANDATE OF THE COURT OF APPEALS AND TO ENFORCE THE ORDERS OF THIS COURT.

11 TELEPHONE CONFERENCE held re hearing scheduled for 8/6/90. The court determineo

that the issue of adequacy of current class representation on 8/6 as scheduled

and that pltf's request to hear their motion for prelim. inj. would not be grant

Other issues of a pretrial nature were discussed .

II NOTICE OF DEPOSITIONS by pltf intervenors re: PAT MAY KUTH, JENNETTE ROZIER,

STEVE COLE, ALVIN DOLLAR.

II MOTION by Robert Anthony Watts, a reporter for Atlanta Journal and Constitution

to expedite consideration of motion to quash subpoena, w/brief (to WCO)

II RESPONSE of defts to pltfs' motion for a prelim. inj, to enforce the mandate of

the Court of Appeals, and to enforce the orders of this ct

II MOTION of pltf-intervenors to exclude witnesses w/brief.

II AMENDED May Call List of witnesses by pltf-intervenors (for hrg of 8/6/90)

II MOTION by Robert Anthony Watts, a repor~rfor At~anta Journal/Constitution to 'ua

subpoena or in altern, to limit its scope w/br1ef (to WCO)

DC lllA (Rev. 1/75)
PLAINTIFF
PRATHER

i CIVIL DOCKET CONTINUATJd,
DEFENDANT

->HEET

FREEMAN

DOCKET NO._ PAGEJ1_0F_

1900"E

NR.

n r,...._,,._ PROCEEDINGS

\.tt\
'I) v

.4.....

•·

Q

~ \,1 \"! '

12.~ Aug. 6
II
7 8 9 15
@;~
_16
II

jh ORDER GRANTING application for admission pro hac vice to EDWARD A. HAILES

for pltf. cc II NON-JURY TRIAL on issue of pltf class representation. Affidavit of Rober·

Watts (A Exh 26) was admitted. Armstrong Intervenors withdrew subpoena i

Mr. Watts and presented letter w/drawing Motion to Quash subpoena. Court

ingly DENIED Motion to quash as moot.

II NON-JURY TRIAL resumed. II NON-JURY TRIAL resumed. Portions of deposition of Jefferson K. Cheek, Jr

read and the depos .. was filed.

II NON-JURY TRIAL resumed.

II NON-JURY TRIAL resumed. Further introduction of evidence on behalf of pl·

Pltfs rested. II ORDER allowing Thomas L. Rowe and Richard Cantrell to bring video and aud·

to courtroom for 8/16/90. order shall be effective until cob on 8/16/90 11 NON-JURY TRIAL concluded. Further introduction of evidence on behalf of c

Closing arguments.

11 TRANSCRIPT of p_roceedings of 8/7/90, filed. ~c.l· 4;j.,..

-

DEPOSITION of JEFFERSON K. CHEEK, JR. taken by pi tf-1 ntervenors, t1 1ea 1r

II II
,-~
~ /-1);c. 7 pds

MEMORANDUM of defts w/respect to d1ssent1ng class memoer par~1c1pa~1on. MEMORANDUM of pltf intervenors re deft's potential obligation to provide i~tervening parties. SUBMITTED TO JUDGE 01 KELLEY ON (1) ISSUE OF ADEQUACY OF CURRENT CLASS CER (2) MOTION BY PROPOSED PLTF-INTERVENORS (Armstrong, et al) TO INTERVNE, C ALTERN. TO CREATE A SUBCLASS (3) MOTION BY PLTF TO JOIN OR ADD PARTIES (M Scott and DeKalb NAACP) (4) MOTION OF SOUTHEASTERN LEGAL FOUNDATION, INC. LEAVE TO FILE AN AMICUS CURIAE BRIEF (5) MOTION OF PLTF-INTERVENORS TO EX WITNESSES.
MOTION FOR TRO & TO SHOW CAUSE WHY DFTS SHOULD NOT BE HELD IN CONTEMPT--- b:
plaintiffs.

12/19 pds 12/19/90 pds ~~... rl2/20/YO pds /
~\I 12/20/90 pds
~ 12/20/9 pds
® ~/27 /90 pds 12/31/90 pds 1/2/91 pds

H3 TRANSCRIPT of telephonic proceedings before Chvi~ewf Judge O'Kelley on 8/3/9
TRANSCRIPT of telephonic proceedings before Chief Judge O'Kelley on 12/13 VC I' ftlf
RESPONSE to mot1on or p1a1nt1ITS ror 'tro, e'tc oy J.m;ervenors.
ORDER that motion by Southeastern Legal Foundation for leave to file an arr curiae brief is GRANTED; plaintiffs motion for tro & request for show cau~ hearing, hearing was granted & held 12/13/90 & plas' motion for tro is DE~ at this time; intervenors motion to intervene is GRANTED: plaintiffs' moti or add parties is DENIED w/respect to DeKalb Branch and Artemis Mills but as to Adesina Scott, Adreana Scott, Ardona Scott, Valencia Mills and Berte the class is redefined to include "all black children enrolled in the DCSE their parents or legal guardians." by Chief Judge O'Kelley. cc.
ORDER changing case caption. (See order for details).
AMENDED RESPONSE of proposed Intervenors to motion of plaintiffs for tro,
SUBMITTED to Chief Judge O'Kelley on Motion for tro & to show cause why df not be held in contempt. STENO NOTES of proceedings held before Judge William O'Kelley on 8/6/90.

1/2/91 pds STENO NOTES of proceedings held before Judge William O'Kelley 0n 12/13/90.

DC lllA (Rev. 1/75)
PLAINTIFF

DATE

NR.

CIVIL DOCKET CONTINUATION SHEl, DEFENDANT
PROCEEDINGS

DOCKET NO. - - -

PAGE

OF__ PAGI

TRANSCRIPT of

before

( 2 Vol~

pds MOTION by plaintiffs for attorney fees and costs with brief in support.

1/28/9

pds .JIOTICE~.OF.J\R.PKAL by Valencia Mills, Adesina Scott, Adreana Scott & Ardona Scot DeKalb Branch, NAACP & class of individuals composed of all Black children & their parents in DeKalb county to USDC's orders of 12/20/90 and 12/21/90.Fee n paid, sent letter for appeal fee, copy attached. Cert. copy of dkt, NOA, & ord to USCA.
pds Appeal fees paid.by plaintiffs.

pds NOTICE OF CROSS APPEAL by plaintiff-Intervenors. Fees paid. Cert copy of dkt NOA, order to USCA.
pds BRIEF in response to plaintiffs' January 1991 motion for atty fees and costs.

2/4/91 pds Appeal Acknowledgement by USCA- USCA No. 91-8065 for Ntc of Appeal filed 1/17/

pds

Appeal Acknowledgement by USCA- USCA No. 91-8065 for Ntc of Cross Appeal filE

1/31/91.

pds CONSENT ORDER:by<"p.lairitiffs extending-' thr.u- 2;<.21/91-:to submit- itemi-zation Tor ~­ re uestl:l for costs ex enses and:,a.ttorne fees. cc.

TRANSCRIPT of proceedings before Judge O'Kelley on 8/8/90. (Vol III)V~t ~7

by plaintl s in suppor o t e1r mot1on or awar o and attorneys' fees.

expens

2/28/91 pds TRANSCRIPT of proceedings before William O'Kelley on 8/9/90. ~~'

3 91 pds 3/14/91 pds
3/14/91 pds

STENO NOTES of proceedings held before Judge O'Kelley on 3 fteidy.

enm.s

S!BNO NOTIES of proceedings held before Judge O'Kelley on 8/7/90, 8/8/90, 8/9/9« 8/15/90 and 8/16/90 before Judge O'Kelley, Ct. Rep Dennis Reidy.

aj 3/18/91 pds JmSPONSE by. defendants tb. .plaint,iff.s·' ·. inemo:~ in :support.~ of, motion for award for costs, expenses and attorneys fees.

3/20/91 pds ~4 (.A(/4 /91 pds

SUBMITTED to Judge William O'Kelley on motion by plaintiffs for attorney fees and costs.
RRBLY BRIEF by plaintiffs to defendants' brief in response to plaintiffs memorandum in support of motion for award of costs, expenses and attorneys feeE

pds MOTION by defendants for leave to file supplemental brief addressed to attorney fee issue. (With proposed supp. brief.)
4/12/91 pds BSrURN receipt P 251 293 945 to USCA delivered 4/9/91.

5/6/91 pds \""~-· VS/10/91 pds

SUBMITTED to Judge William O'Kelley on motion by defendants for leave to file supplemental brief addressed to attorney fee issue.
ORDER DEFERRING ruling on plaintiffs' motion for attorneys' fees until after 11th Circuit and Supreme Court have decided matters before them, after those decisions, the clerk is directed to resubmit the plaintiffs' motion for court's consideration, and GRANTING defendants' motion for leave to file supplemental bfrmf on issue of attys' fees, all will be resubmitted at later date by clerk b Judge William C. O'Kelley. cc.

DC lllA (Rev. l/75)
PLAINTIFF
WI VALENCIA MILLS ET AL

i
CIVIL DOCKET CONTINUATI~•. SHEET DEFENDANT
ROBERT R. FREEMAN ET AL

DOCKET NO.~
PAGE ..2.Q_OF_

DATE

NR .

.-·-l=:5:/=2=9;/9=:::p:d:s:~=P~E~T~IT~I:O:N::;fo;r<=l=e~a~v=e=:o==iaib=s=en=c:e:=acs=~::=;;===;~:=;:;==;o~~f.F=~~~~ffiffi~~

to Ct. Dep w/prop order.

kjm ORDER GRANTING petition for leave of absence as to Marcia W. Borowski~

by ct dep. cc

\G-t--

pds ORDER dismissing appeal and cross-appeal for lack of jurisdiction. cc~V~

pds ORDER granting motion for leave of absence of Charles D. Johnson III for thru 7/26/91. Approved by Ct. Dep. cc.
pds Returned mail from P.O. to John R. Myer with stamp" Moved, not forwardabl

pds MOTION by plaintiffs' to join or add parties.
pds RESPONSE by Plaintiff-Intervenors to plaintiffs' motion to join or add pc
pds RESPONSE by defendants to the Mills plaintiffss July 1991 motion to join aiB.d parties.
pds SUBMITTED to Judge William O'Kelley on motion by plaintiffs to join or a' parties.

pds REPLY to response in opposition to motion to join or add parties by plain

pds SUPPLEMENTAL RESPONSE by plaintiff-Intervenors to plaintiffs' reply.
/
26/91 pds MOTION to strike by plaintiffs w/brief in support.
pds MOTION by plaintiffs to compel discovery, enforce Court's orders, convenE discovery conference, to show cause why should not be held in contempt, , appoint a monitor to assure flow of information and memorandum in suppor1

pds MOTION by plaintiff-intervenor for leave to file supplemental response anc conditional motion to strike.

10/21/9

pds RESPONSE by defendants to Mills Plaintiffs' motion to compel discovery, e1 Court's orders, convene discovery conference, to show cause why defendant: should not be held in contempt, and appoint a monitor to assure flow of information.
pds SUBMITTED to Judge William c. O'Kelley on motion by Mills plaintiffs to c
discovery, enforce court's orders, convene discovery, to show cause why defendants should not be held in contempt, and appoint a monitor to assur, of information.

vf'o/22/ 1 pds RESPONSE by plaintiffs in opposition to intervenors' motions of 10/2/91.
10/23/91 pds SUBMITTED to Judge William c. O'Kelley on motion for leave to file supplE
response and conditional motion to strike by plaintiff-intervenor and on by plaintiffs to compel discovery, enforce Court's orders, convene disco' conference, to show cause why should not be held in contempt, and appoint monitor to assure flow of information.
10/28/9 pds SUBMITTED to Judge William c. O'Kelley on motion to strike by plaintiffs.

11/6/91 pds REPLY by plaintiffs to defendants 10/18/91 response.

5/26/92 pds NOTICE of change of address for Charles S. Johnson, III, Peterson Dillard
Self & Asselin for plaintiffs.

DC lllA (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEE't DEFENDANT

DOCKET NO. - - PAGE ~OF_ _ PAGE

DATE

NR.

PROCEEDINGS

pds PETITION for leave of absence of Charles S. Johnson, III for 7/1/92 thru 7/15/92 to wco- no proposed order.

pds ORDER granting petition for leave of absence on Charles S. Johnson, III for 7/1/92 thru 7/15/92. Approved by Ct. Dep. cc.

/29/9 pds MOTION by defendants for leave to use bond proceeds with brief in support.

11/9/92 pds

CONFERENCE HELD: Re Defts' motion for leave to use bond proceeds; Counsel argued motion; Court must review two responses filed today; If any supplements are to be filed, they must be filed within 10 days (not working days) from today. Clerk to resubmit then.

- /9/92 pds MOTION by plaintiffs to strike defendants' motion for leave to use bond proceeds with brief in support.

/9/92 pds MOTION by plaintiffs for a preliminary injunction, to show cause why defendants should not be held in contempt, and to enforce the orders of this court with brief in support.

/9/92 pds RESPONSE by plaintiff-intervenors to defendant's motion for leave to use bond proceeds.

pds ORDEB that during a hearing on 11/9/92, plaintiffs, plaintiff-intervenors and defendants agreed to cooperate in requesting and providing information; plaintiff's motions are, therefore, denied without prejudice by Judge William C. O'Kelley. cc.
yfl/24/9 pds SUBMITTED on motion for leave to use bond proceeds by defendants, motion to strike defendants' motion for leave to use bond proceeds by plaintiffs, motion for a preliminary injunction, to show cause why defendants should not be held in contempt, and to enforce the orders of this court by plaintiffs.
pds BRIEF by defendants tol~l~I~tiffs' motion to strike and in reply to response
of Armstrong plaintiffs

pds SUPPLEMENTAL RESPONSE by plaintiff-intervenors to to use bond proceeds.

pds SUPPLEMENTAL BRIEF by plaintiffs renewing its previous motion to strike~~~ •

defendants' motion for leave to use bond proceeds.

~ \

12/3/92 · pds NOTICE of change of address for attorney Gary M. Sams to P. o. Box 250, Decatur, GA 30031- copy to Deanna. Request was made to remove Atty Charles L. Weatherly.

pds CERTIFIED COPY of order of Ct. of Appeals AFFIRMING the district court order entered on 6/30/88 and REMANDING the case for further proceedings. cc.order w/ proposed order making mandate judgment of USDC to WCO.
pds STENO NOTES on proceedings held before Judge William C. O'Kelley on 11/9/92, Dennis Reidy, Ct. Rep.

pds ORDER making mandate the judgment of the US District Court by Judge William c. O'Kelley. cc.

pds SUPPLEMENTAL BRIEF by defendants on bond issue question in light of Court of Appeals remand order.

DC lllA (Rev. 1/75)
PLAINTIFF
VALENCIA MILLS, ET AL

CIVIL DOCKET CONTINUATIO)... .SHEET DEFENDANT
OBERT R. FREEMAN ET AL

DOCKET No.ll< PAGE 22 OF_

DATE

NR.

PROCEEDINGS

pds RESPONSE of plaintiff-intervenors to supplemental brief of defendants on l issue question.

/11/93 pds 1/12/93 pds
~··
~ 012/93 pds
pds

RESPONSE by plaintiffs to defendants' supplemental brief on bond issue.

CERTIFIED copy of order of Ct. of Appeals that appeallants-cross-appelle motion to correct or amend judgment is denied. cc.

CERTIFIED

copy

of

order

o

f

/

Supreme Court
et~-of-ftppee±~

of th

the at

t

United St he order

a o

tes f th

e

District

entered 6/30/88 is AFFIRMED and that the cause is REMANDED to the Distric

for further proceedings, that each party bear own costs on appeal. cc. (J

return;ewditfhromcerUtSiCfAic- a2tevoolf$ croeucnosredl abnyd p1l1aitnratinfsfcsripts) MOTION by plaintiff's counsel Marcia Borowski to withdras as counsel.

pds MOTION by plaintiffs for attorney fees and costs with brief in support.

5/26/93 pds pds

PROPOSED consent order to extend time for defendants to file responses to plaintiffs' motion to withdraw as counsel and motion for attorney fees an costs to WCO.
ORDER grantin& motion by plaintiff's to withdraw Marcia Borowski as couns· Judge William C. O'Kelley. cc.

6/1/93 pds SUBMITTED on motion by plaintiffs for attorney fees and costs to Judge Wi C. O'Kelley.

pds CONSENT ORDER by parties extending time thru 6/9/93 for defendants to resy to motion to withdraw as counsel for plaintiffs and motion for attorney fE
and costs by Judge William c. O'Kelley. cc.

6/1/93 pds HEARING HELD: Cuurt will rescind order of 5/28/93.
@§ 1/6/2/93 pds ORDER that order of 5/28/93 is RESCINDED pending resolution of the issues in the 6/1/93 conference by Judge William c. O'Kelley. cc.
fu ~/7/93 pds BRIEF by defendants in response to motion to withdraw Marcia Borowski as c for plaintiffs by Marcia Borowski.

@ ~/7/93 pds BRIEF by defendants in response to motion for attorney fees and costs by r

6/8/93

pds RESUBMITTED on motion by plaintiffs for attorney fees and costs and motion
withdraw Marcia Borowski as counsel to Judge William c. O'Kelley.

pds pds
pds

PROPOSED consent order by plaintiffs, NAACP and defendant to extend time plaintiffs to respond to defendants' brief in response to motion of Marci' Borowski to withdraw as counsel for plaintiffs and to motion for attorney and costs (to WCO).
CONSENT ORDER extending time thru 7/15/93 for plaintiffs to respond to def brief in response to motion of Marcia Borowski to withdraw as counsel for and brief in response to plaintiffs' motion for attorney fees and costs by
William c. O'Kelley. cc.
ORDER that defendants' motion for leave to use bond proceeds is granted, a plaintiffs' motions for preliminary injunction, to show cause why defendan should not be held in contempt, to enforce the orders of this court, and t strike defendants' motion for leave to use bond proceeds aFe denied by Jud William C. O'Kelley. cc.

U\,; lllA (Rev. 1/75)
PLAINTIFF

VALENCIA MILLS ET AL

DATE

NR.

CIVIL DOCKET CONTII'·IUATION SHE!?{

I DEFENDANT

\

ROBERT R. FREEMAN ET AL
PROCEEDINGS

DOCKET NO. 119116
PAGE .23.-0F__ PAGE

pds NOTICE OF APPEAL by plaintiff-intervenors of order entered on 7/l/93.(cc) Fees paid, receipt #191505.
pds NOTICE of appeal, certified copy of 7/1/93 order and certified copy of docket to US Court of Appeals.
pds NOTICE OF APPEAL of plaintiffs Valencia Mills et al of court's order of 7/1/93 which denied plaintiffs' motion for a preliminary injunction. cc.

pds NOTICE of appeal, certified copy of 7/1/93 order and certified copy of docket to US Court of Appeals.

pds MOTION by plaintiff-intervenors for equitable relief from overcrowding with bri in support.

pds REPLY by plaintiffs to brief on attorney fees and costs by defendants~ and
MOTION by plaintiffs for payment of $334,266.75 for attorney fees and $11,239. for costs for the wrok of Marcia Borowski, from November 1988 through May 1993.

pds REPLY by plaintiffs to defendant's response to motion of Marcia Borowski to withdraw as counsel.

pds PROPOSED consent order by plaintiff-ihtervenors and defendants to extend time

for defendants to respond to plaintiff-intervenors' motion for relief rrom

overcrowding (to WCO) •

(C. \"-.1 b v ~ \. . . \ \

7/26/93 er Acknowledgement of order 12/20/90 from Court of Appeals.

7/27/93 pds

ACKNOWLEDGEMENT

of

appea1•1bfyrompl

ain US

tiff-in Court

ter of

venors Appeals

No.

93-8907.

pds

CONSENT ORDER extending intervenors' motion for

time for defendants to file responses relief from overcrowding thru 9/1/93.

to plainti Approved by

fCft-.tv.

Dep. cc.

I

/27/93 pds REPORT to the Court on planned expenditure of proceeds from unissued bonds by defendants.
pds AMENDED Notice of Appeal by plaintiff-intervenors. icc.

8/4/93 pds 8/12/93 pds

SUBMITTED on motion filed 7/15/93 by plaintiffs for payment or $334.266.75 for attorney fees and $11,239.92 for costs for the work of Marcia Borowski, from November 1988 through May 1993.
RECEIPT by USCA of certified copy of amended notice of appeal by plaintiffintervenors.

8/18/93

pds pds
pds

APPEAL FEES of $105.00 paid by firm of Stanford, Fagan & Giolito, Receipt #
192975. PROPOSED consent order by plaintiff-intervenors to extend time for defendants
to respond to plaintiff-intervenors' motion for relief from overcrowding (to WCO).
CONSENT ORDER by plaintiffs- intervenors & defendants extending time for
defendants to respond to plaintiff-intervenors' motion for relief from overcrowding thru 10/1/93 by Judge William C. O'Kelley. cc.

pds /1/93 pds

SUPPLEMENTAL brief by plaintiffs on attorney fees and costs.
BRIEF by defendants in response to Armstrong plaintiffs' 7/14/93 motion for equitable relief from overcrowding.

DC 111.'1 (Rev. 1/75)
PLAINTIFF

VALENCIA MILLS, ET AL

DATE

NR.

CIVIL DOCKET CONTINUATIO~. .iEET
DEFENDANT
ROBERT R. FREEMAN ET AL
PROCEEDINGS

DOCKET No. 119
PAGE2!LOF_ _

10/7/93 pds 10/25/9~ pds ~ ~/20/94 pds
~
~t.. ...-2/10/94 pds
. -·
\~ ~/17/94 pds
2/18/94 pds
-, 2/18/94 pds
~ ~/22/94 pds

SUBMITTED on motion by plaintiff Armstrong's for equitable relief from ove crowding to Judge William C. O'Kelley.

TRANSCRIPT of proceedings held before Judge William O'Kelley on 11/9/92, D

Reidy, Ct. Rep.

V~\ • St

ORDER denying plaintiffs' motions for attorney's fees and costs (12/lR/89)
denying plaintiffs' 1/11/91 motion for attorney's fees and awards Ms Borow $56,233.75 in attorney's fees ~nd $~,672.80 in paralegal tlme, tho cou~t d any cumoer.s~tion for custs, er~nting MB. Borowski's motion to withdraw and permitting Willie Abrams and Bruce K. Roberts to represent plaintiffs on a interiw basis until new lead counsel is certified by Judge William C. O'Ke
cc.

ORDER denying as moot plaintiff-intervenors' motion for equitable relief fJ overcrowding by Judge William C. O'Kelley. EOD 2/14/9li. cc.

NOTICE OF APPEAL by plaintiffs Valencia Mills et al and a class of individl composed of all black childred & parents in DeKalb County to US Court of AJ for the 11th Circuit from District Court's order of l/24/9li. cc. CERTIFIED COPIES of notice of appeal, order & docket to USCA.
CERTIFIED COPY of notice of appeal, certified copy of order and copy of doc forwarded to US Court of Appeals.

NOTICE OF CROSS-APPEAL by defendants of order of l/20/9li as ordered defts t pay plaintiffs attorney fees for work done by Marcia Borowski. cc.

2/22/94 pds
~
~~ ~2/94 pds
3/3/94 pds

Appeal acknowledgement by USCA on 2/17/9li notice of appeal No. 9li-820ll.
MOTION by plaintiff-intervenors for award of attorneys fees. CERTIFIED COPY of notice of cross appeal by defendants, certified copy of c and certified copy of docket forwarded to USCA.w/copy of fee letter to def1

3/16/94 pds APPEAL ACKNOWLEDGEMENT by USCA on notice of cross-appeal by defendants No. 9li-820li.

-· 3/30/94 pds
~ ~31/94 pds

SUBMITTED on motion by plaintiff-intervenors for award of attorneys fees · Judge William O'Kelley.
ORDER that plaintiff-intervenors may file their detailed specification & itemization of their requested attorneys' fee award is extended thru 5/2;

by Judge William C. O'Kelley. cc.

JE.Nh \J ~~ ·1 a_)

(,:§; VS/2/94 pds
..~-
(~ v5/2/94 pds

ITEMIZATION by pia-intervenors and justification of attornesys e tQ:~t\es\l ~·..._~\-"·! (€ ~~ "~"- l
AMENDED motion by plaintiff-intervenors for award of attorneys fees. ~a~~~
V~\...-\

5/3/94 pds STATUS CONFEREENCE HELD: Parties are given 60 days to negotiate a final

conclusion of this case; if another meeting w/court is necessary at that t

~ ~ 5/5/9li pds

they shall notify court.
PROPOSED consent order by all parties to extend time for defendants to res1
to motion for attorney fees & costs (to WCO).

(Rev. li75)
PLAINTIFF
WILLIE EUGENE PITTS, ET AL

CIVIL DOCKET CONTINUATION SHE9' DEFENDANT
ROBERT R. FREEMAN, ET AL

11946 DOCKET NO. - - - -
PAGE2~oF__ PAGE

DATE

NR.I

PROCEEDINGS

pds CONSENT ORDER by parties to extend time thru 6/17/94 for defts to respond to motion for attorney fees and costs. Approved by Ct/ Dep. cc.

6/6/94 pds L-fr/ 10/9 scg
6/16/94 II

SUBMITTED on amended motion by plaintiff-intervenors for award of attorneys fee to Judge William C. O'Kelley.
STIPULATION by parties for dismissal w/prejudice of pia-intervenors motion, as amended, for award of attorneys fees. (to WCO for approval)
ORDER APPROVING stipulation by parties for dismissal w/prejudice of pla-interve: motion, as amended, for award of attorneys fees. cc

ll/4/93 fern request for COR from USCA.

12/10/ 3 II

II

1/28/9

II

l/28/9 II

II
Notified USCA that file is on submission in Judge O'Kelley's chambers. request for COR from USCA.

4/25/9 II

II

ddm MINUTE SHEET re status conference held 9/26/94. scheduling order.

Court will issue

~10/12/94 scg
J0/17/94 II

ORDER entered pursuant to status conference held 9/26/94 to schedu: dates for parties to submit briefs and evidentiary documents to th« court. Defendants tQ submit their brief/documents on or before 10/17/94: plaintiffs have 20 days to respond. cc
ORDER DIRECTING dfts to provide court w/information as directed in the order
of 9/27/94 by 10/22/94 & plas have 20 days thereafter to respond. cc & eod 10/1
BRIEF by dfts in support of final dismissal upon remand from Supreme Court and Court of Appeals.

ddm AFFIDAVIT of James R. Hallford, Ph.D.r Deputy Superintendent for Administration and Finance for DeKalb County School System with exhibits 1 through 8 attached.
ddm CONSENT ORDER extending time to respond to dfts• submissions throu~
12/31/94. by Judge William c. O'Kelley. cc

ddm CERTIFIED COPY OF ORDER from USCA DISMISSING appeal 193-8907. cc

ddm NOTICE OF SUBSTITUTION OF COUNSEL: Pamela Sloan replaces Amy

Totenberg as counsel of record representing amici in this matter.

scg BRIEF by plas in opposition to motion for final dismissal upon remand.

" CONSENT ORDER extending time thru 2/7/9§ for the Armstrong plas to respond to

brief in support of final dismissal on remand from the Supreme Court & USCA; by

Judge William C. O'Kelley. cc

,

d BRIEF of Plaintiff-Intervenors IN OPPOSITION to Defendant's REQUES'

FINAL DISMISS L. jaw Transcript of proceedings held on 8/31/83, filed.

jaw Second request from USCA for Certificate of Readiness. jaw 1SUPPLEMENTAL BRIEF of plaintiff-intervenors in opposition to dfts. request for
final dismissal.

CLOSED APPEAL SUBMDJ NoArch
u.s. District Court u.s. District Court for the Northern District of Georgia (Atlanta

CIVIL DOCKET FOR CASE #: 68-CV-11946

Mills, et al v. Freeman, et al Assigned to: Judge William c. O'Kelley Demand: $0,000 Lead Docket: None Dkt# in other court: None

Filed: 07/05/68 Nature of Suit: 440 Jurisdiction: Federal Question

cause: 42:2000c-6 Discrimination in Education

VALENCIA MILLS, a minor, by her parents and next friends,
plaintiff

Willie Abrams [COR LD NTC] Edward A. Hailes, Jr., phv [COR LD NTC] NAACP Special Contribution Fund 4805 Mt. Hope Drive Baltimore, MD 21215 301-486-9196

BERTA MILLS, and plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv
(See above) [COR LD NTC]

ROGER MILLS plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv
(See above) [COR LD NTC]

ADESINA SCOTT plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr. , phv
(See above) [COR LD NTC]

ADREANA SCOTT plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv

Docket as of october 2, 1995 3:16 pm

Page 1

ATIEST: A TRUE COPY
CERTIFIED THIS \~ J~)~'
Luther D. 'nunas, Cled
By:c--~-~~
Deputy Clerk

Proceedings include all events. 1:68cv11946 Mills, et al v. Freeman, et al
(See above) [COR LD NTC]

ARDONA SCOTT, minors, by their parents and next friends,
plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

CYNTHIA SCOTT, and plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

MAJOR SCOTT plaintiff
~I

Willie Abrams (See above) (COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

ASHLEY ARMSTRONG, and plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

B'RANDI ARMSTRONG, minors, by their father and next friend,
plaintiff

Willie Abrams (See above) [COR LD NTC] . Edward A. Railes, Jr., phv (See above) [COR LD NTC]

HAROLD M. ARMSTRONG plaintiff

Willie ~r~s (See above)' · ·
A: [COR LD NTC]
Edward P.ailes, Jr., phv (See above) [COR LD HTC]

HARAJA EL-SHABAZZ, and

plaintiff

·

Willie Abrams (See above)

Docket as of October 2, 1995 3:16 pm

Page 2

CLOSED APPEAL SUBMDJ NoArch

Proceedings include all events. 1:68cv11946 Mills, et al v. Freeman, et al
[COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

JIHAN EL-SHABAZZ, minors, by their parents and next friends
plaintiff

Willie Abrams (See above) (COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

ASAHITA EL-SHABAZZ, and plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

~· NARWANNA EL-SHABAZZ plaintiff

Willie Abrams (See above) (COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

JAMES SOMERVILLE, a minor, by his mother and next friend,
plaintiff

Willie Abrams (See above) (COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

CAROLYN SAUNDER plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv
(See above) (COR LD NTC]

NATHAN JONES, a minor, by his parents and next friends,
plaintiff

Willie Abrams (See above) (COR LD NTC] Edward A. Hailes, Jr., phv (See above) (COR LD NTC]

Docket as of October 2, 1995 3:16 pm

Page 3

CLOSED APPEAL SUBMDJ NoArch

Proceedings include all events. 1:68cvl1946 Mills, et al v. Freeman, et al

CAROLYN JONES, and plaintiff

Willie Abrams (See above) [COR LD HTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

WAYNE JONES plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

NADRAH FALAH plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

MALIK FALAH plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

MANGOOR FALAH, and plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

SALIM SABIR, minors, by their parents and next friends,
plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

MAHASIN SABIR, and plaintiff

Willie Abrams (See above) [COR LD NTC) Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

Docket as of october 2, 1995 3:16 pm

Page 4

CLOSED APPEAL SUBMDJ NoArch

Proceedings include all events. 1:68cv11946 Mills, et al v. Freeman, et al

ADIB SABIR plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

CHRISTINA THOMAS, a minor, by her mother and next friend,
plaintiff

Willie Abrams (Sea above) (COR ID NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC] ·

GRACE THOMAS plaintiff

Willie Abrams (See above) ("COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

MICHAEL CREAMER plaintiff

Willis Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

STEVEN CREAMER, and plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. P.ailes, Jr., phv (See above) [COR LD NTC].

NICHOLAS CREAMER, minors, by their mother and next friend,
plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

MARGUERITE CREAMER plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr.' phv

Docket as of October 2, 1995 3:16 pm

Page 5

CLOSED APPEAL SUBMDJ NoArch

Proceedings include all events. l:6Scv11946 Mills, et al v. Freeman, et al
(See above) [COR LD NTC]

SANDI BAILEY, and plaintiff

Willie Abrams (See above) (COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

KARLA BAILEY, minors, by their parents and next friends,
plaintiff

Willie Abrams (See above) (COR LD NTC] Edward A. Hailes, Jr., phv (See above) (COR LD NTC]

EVELYN BAILEY, and plaintiff

Willie Abrams (See above) [COR ID NTC] Edward A. Hailes, Jr., phv (See above) (COR LD NTC]

LARRY BAILEY plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

BRANDON RUSSELL, a minor, by his parents and next friends,
plaintiff

Willie Abrams (See above) (COR ID NTC] Edward A. Hailes, Jr., phv (See above) (COR LD NTC]

KAREN RUSSELL, and plaintiff

Willie Abrams (See above) (COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

KEVIN RUSSELL plaintiff

Willie Abrams (See above)

Docket as of October 2, 1995 3:16 pm

Page 6

CLOSED APPEAL SUBMDJ NoArch

Proceedings include all events. 1:68cv11946 Mills, et al v. Freeman, at al
[COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

MICHAEL PERRY plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv {See above) [COR LD NTC]

GERALD PERRY, and plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

~'LACY PERRY, minors, by their mother and next friend, plaintiff

Willie Abrams {See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTCJ

NINA PERRY plaintiff

Willie Abrams (See above) [COR LD NTCJ Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

DARIUS MCVAY, and plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC] .

KEVIN MCVAY, minors, by their father and next friend,
plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

Docket as of October 2, 1995 3:16 pm

Page 7

CLOSED APPEAL SUBMDJ NoArch

Proceedings include all events. 1:68cv11946 Mills, et al v. Freeman, et al

WILLIAM MCVAY plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

JULIA STEWART, a minor, by her mother and next friend,
plaintiff

Willie Abrcms (See above) [COR LD NTC] Edward·A. Hailes, Jr., phv (See above) [COR LD UTC]

ROSE STEWART plaintiff

Willie Abrams (See above) (COR LD N'l'C] Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

JEEZANHAY BLAKE plaintiff

Willie Abrams (See above) [COR LD NTC) Edward A. Hailes, Jr., phv (See above) [COR LD NTC]

HALANI BLAKE, and plaintiff

Willie Abrams (See above) [COR LD NTC] Edward A. Hailes, Jr., phv (See above) (COR LD NTC]

TASHIANA BLAKE, minors, by their mother and next friend,
plaintiff

Willie Abrams (See above) (COR LD NTC] Edward A. Hailes, Jr., phv (See above) (COR LD NTC]

BETTY BLAKE plaintiff

Willie Abrams (See above) (COR LD NTC] Edward A. Hailes, Jr., phv (See above) (COR LD NTC]

Docket as of October 2, 1995 3:16 pm

Page 8

CLOSED APPEAL SUBMDJ NoArch

Proceedings include all events. 1:68cv11946 Mills, et al v. Freeman, et al
v.

CLOSED APPEAL
SUBMOJ
NoArch

ROBERT R. FREEMAN, superintendent
defendant

Gary M. Sams [COR LD NTC]
Weekes & candler
480 one Decatur Towncenter P.O. Box 250 150 East Ponce de Leon Avenue Decatur, GA 30031 404-378-4300

ELIZABETH ANDREWS defendant

Gary M. Sams (See above) [COR LD NTC]

NORMA BERGMAN defendant

Gary M. Sams (See above) [COR LD NTC]

PHIL MCGREGOR defendant

Gary M. Sams (See above) [COR LD NTC]

LYMAN HOWARD defendant

Gary M. Sams (See above) [COR LD NTC]

DONNA WAGNER defendant

Gary M. Sams (See above) [COR LD NTC]

DAVID WILLIAMSON defendant

Gary M. Sams (See above) [COR LD NTC]

PAUL WOMACK, as defendant

Gary M. sams (See above) [COR LD NTC]

DEKALB COUNTY BOARD OF EDUCATION, members.
defendant

Gary M. Sams (See above)
[COR LD NTC]

Docket as of October 2, 1995 3:16 pm

Page 9

. ' "-=--~~ ! ---------1

Proceedings include all events.

CLOSED APPEAL

1:68cv11946 Mills, et al v. Freeman, et al

SUBMDJ

NoArch

9/25/94

SEE PAPER DOCKET for the record of all documents filed and

other events related to this matter which occurred prior to

9/26/94. This matter is being opened and closed in ICMS on

3/28/95. (ddm) [Entry date 03/28/95)

[Edit date 03/28/95)

9/26/94
9/28/94 @

MINUTE SHEET re status conference held 9/26/94 before Judge
William c. O'Kelley. Court will issue a scheduling order.
(ddm) [Entry date 03/28/95] [Edit date 03/28/95) ORDER entered pursuant to 9/26/94 status conf. to schedule dates for ptys to submit briefs and evidentiary docs to the court. Dfts to submit brief/documents on or before 10/17/94;
plas have 20 days to respond by Judge William c. O'Kelley.
cc (ddm) [Entry date 03/28/95) [Edit date 04/11/95)

10/12/94@

ORDER DIRECTING dfts to provide court w;info as directed in 9/27/94 order by 10/22/94; plas have 20 days thereafter to respond by Judge William c. ·O'Kelley. cc & EOD 10/13/94. (ddm) [Entry date 03/28/95] [Edit date 04/11/95]

10/17/94@

BRIEF by dfts in support of final dismissal upon remand fm Supreme Court and Court of Appeals. (ddm) [Entry date 03/28/95] [Edit date 04/11/95]

10/21/94@

AFFIDAVIT of James R. Hallford, Ph.D., Dep.Superintendent, Adminis. and Finance, DeKalb Co. School System wfexhibits 1 through 8 att'd. (ddm) [Entry date 03/28/95] [Edit date 04/11/95]

CONSENT ORDER extending time through 12/31/94 for response
to dfts' submissions, by Judge William c. O'Kelley. cc (ddm)
[Entry date 03/28/95] [Edit date 04/11/95]

11/22/94@ 11/30/94 ~·

Certified copy of ORDER of U.S.Court of Appeals DISMISSING appeal #93-8907. cc (ddm) (Entry date 03/28/95] [Edit date 04/11/95]
NOTICE of substitution of counsel: Pamela Sloan replaces Amy Totenberg as counsel of record representing amici in this matter. (ddm) [Entry date 03/28/95) [Edit date 04/11/95]

12/22/94@

BRIEF by plas in opposition to motion for final dismissal upon remand. (ddm) [Entry date 03/28/95] [Edit date 04/11/95]

12/27/94@

CONSENT ORDER extending time through 2/7/95 for Armstrong plas to respond to brief in eupport of final dismissal [220-1] on remand fm the Supreme court & USCA by Judge
William c. O'Kelley. cc (ddm) [Entry date 03/28/95]
[Edit date 04/11/95]

Docket as of october 2, i995 3:16 pm

Page 10

Proceedings include all events.

CLOSED APPEAL

1:68cv11946 Mills, et al v. Freeman, et al

SUBMDJ

NoArch

2/7/95

BRIEF of plaintiff-intervenors in opposition to dfts'

request for final dismissal. (ddm) [Entry date 03/28/95]

[Edit date 04/11/95]

2/16/95 3/20/95 I ~ ~)

Request for Certificate of Readiness from Court of Appeals regarding appeal. USCA 93-8907. (rag) [Entry date 10/02/95]
SUPPLEMENTAL BRIEF of plaintiff-intervenors in opposition to dfts' request for final dismissal. (ddm) [Entry date 03/28/95] [Edit date 04/11/95]

3/28/95

SUBMITTED on order [218-1] and dfts request for final dismissal on remand to Judge William c. O'Kelley. (ddm) [Edit date 04/11/95]

4/3/95
7/25/95 (§)

NOTICE atty Bruce K. Roberts, formerly employed as staff atty wfthe NAACP, is no longer counsel for Mills plas and requesting that he formally withdraw as counsel for plas. (ddm) [Entry date 04/10/95] [Edit date 04/11/95]
STIPULATION OF DESIGNATION OF RECORD by ptys re Appeal and Cross Appeals 93-8907 and 94-8204 as to docs that will constitute the record on appeal. (to WCO) (ddm) [Entry date 07/26/95]

8/11/95

RECORD ON APPEAL ret'd fm USCA, 11th. Record check revealed 12 vols. of transcript, 2 vols of docs Re: 88-8687. Trans. memo states "These are the original volumes which were previously reconstructed. Consolidated with 88-8775." (ddm)
[Entry date 08/18/95]

9/5/95

PHONE CONVERSATION re pla's request for hrng: ptys asking court to decide exact issues remaining in case so they can
be argued at a hrng in near future. (ddm) [Entry date 09/06/95]

9/6/95

STENO NOTES of proceedings held 9/5/95 before Judge William c. O'Kelley, by court Reporter Dennis J. Reidy. (ddm)

9/8/95

ORDER DIRECTING dfts to submit new brief in support of final dismissal wjemphasis on categories .•• [218-1) wjin 30 days of this order; DIRECTING plas to file response as to why court should not dismiss case entirely [218-1] focusing on issues ••• wjin 30 days after dfts' brief is filed; dfts may file response wjin 15 days after plas' response is filed, by Judge William c. O'Kelley. (See order for add'l guidelines.)
cc and by ctrm.dep.; USCA 9/21/95. (ddm) [Edit date 09/21/95]

10/2/95

CERTIFICATE OF READINESS OF RECORD ON APPEAL with certified
copy of.docket mailed to USCA. (14 vols. of pleadings; 5 vols. of depositions; 38 vols. of transcripts and 3 boxes of exhibits (IN EXHIBIT ROOM). USCA 93-8907. (rag)

Docket as of October 2, 1995 3:16 pm

Page 11

 
 Apaasllptpeharegceposappwieeesrraecnocdphiaeersce.keads

against complete

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

FRANKIE PRATHER, et al.

)

)

Plaintiffs,

)

)

and

)

)

ASHLEY AND B'RANDI ARMSTRONG, )

et al.,

)

)
Plaintiffs-Intervenors, )

)

v.

)

)
ROBERT R. FREEMAN, et al., )

)

Defendants.

)

CIVIL ACTION FILE NO. 11946-WCO

DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION, TO ENFORCE THE MANDATE OF THE COURT OF APPEALS,
AND TO ENFORCE THE ORDERS OF THIS COURT

As has happened before in the recent past, the current class representatives (hereinafter "Plaintiffs") have filed a motion requesting the Court to intervene in the Defendants' operation of the DeKalb County School System ("DCSS") shortly before the beginning of a new school year. Their latest request for such intervention is the most intrusive one yet. The relief requested is not simply intemperate, it is irresponsible. If granted, Defendants would essentially be prohibited from making many important decisions concerning the operation of the DCSS "without
- 1-

prior notification to and approval of" not only the Court, but Plaintiffs as well.
Beside the fact that the assumption of this kind of authority by the Court alone would invade areas of local school operations that heretofore have been held by the Supreme Court and the old Fifth Circuit Court of Appeals to be within the competence of local school authorities in the first instance, 1 giving Plaintiffs what would amount to a veto power over any changes in "school attendance boundaries" or areas or in "the grade articulation or purpose of any school" within DCSS would prove to be totally unworkable in practice. For example, if Plaintiffs' motion were granted, Defendants could not make any substantive changes in their existing magnet programs nor could they initiate any new magnet programs without first notifying the Court and the Plaintiffs of their plans and obtaining the approval of both for those plans. If Plaintiffs objected to any aspect of such plans, their "disapproval" would be sufficient to prevent the implementation of that aspect regardless of what the Court thought. Such an unfettered veto power would be unprecedented in the history of desegregation litigation in this country and would quickly lead to operational gridlock as far as the conduct of the affairs of the DCSS was concerned.
1 See Milliken v. Bradley, 418 u.s. 717, 741-42 (1974) and
Lee v. Macon County Board of Education, 584 F.2d 70, 82 (5th Cir. 1978).
- 2-

In addition, the literal wording of Plaintiffs' motion indicates that they want to prevent Defendants from "spending any proceeds from the 1989 school bond fund ... instituting any changes in programs, assignments of teachers and principals (and] committing the expenditure of any major portion of funds for new programs, including the Magnet Programs" without any qualification whatsoever. The effect of such relief, if granted, would be to freeze the operation of the DCSS in these crucial areas without providing any method for unfreezing its operation in them or replacing existing procedures with a scheme which would allow the system to continue operating. The procedural and practical problems that would be created by such a state of affairs are obvious. The dollar cost to the taxpayers of the necessary consequences of "preventing defendants from spending any proceeds from the 1989 school bond fund" alone would be tremendous . 2
Even if Plaintiffs' motion were interpreted to permit the Court to override any objection Plaintiffs may have to a proposed course of action by Defendants after "prior notification" to the Court and Plaintiffs, the expenditure of judicial time and
2 All DCSS contractors working on projects budgeted from the recent bond issue would have to be notified immediately that payments to them would be suspended, and work would cease. Damage claims, shut-down and startup costs would all be laid at the school system's door.
- 3-

resources that would be necessitated by requiring Defendants to give "prior notification" to the Court and Plaintiffs and to obtain the specific "approval" of the Court alone for every such proposed course of action would be tremendous. As the Court has remarked on many occasions in the past, judicial time and resources are a scarce commodity and should only be expended where absolutely necessary.
In the 22 years that this desegregation case has been pending the degree of Court oversight of school operations now being demanded has never been found necessary. The factual basis upon which Plaintiffs rest their contention that such an expansion of the Court's oversight role is now necessary, is filled with misleading and inaccurate statements, and in some cases, outright untruths.
- 4-

Regardless of Plaintiffs' motives for filing their motion at this particular time, 3 there is simply no factual basis for it.
To the extent Plaintiffs rely on Defendants' alleged failure to
provide them with "relevant information" in a timely manner, they
have other legal means for redressing this alleged wrong. In
fact, prior to filing this motion they made use of these other
legal means by filing a Motion to Compel Discovery, Enforce
Court's Orders, Convene Discovery Conference, and Appoint a
Monitor to Assure Flow of Information ("Motion to Compel"). The
Motion to Compel has already been responded to in writing and
will not be addressed in this response except where necessary to
show a misstatement of fact by the Plaintiffs in their supporting
brief for this motion.
To the extent the motion for a Preliminary Injunction is
based on Defendants' alleged failure to notify the Court or
3 This most recent motion from the current class representatives, with its criticisms of this Court, can be seen as an effort to deflect attention from the attack by class members on the adequacy of their representation of the class which is scheduled to be heard beginning on August 6, 1990. The first time that matter was set down for hearing the current class representatives came forward with a motion to add NAACP as a plaintiff in their camp. That motion was directed to "heading off" the Armstrong Intervenors, (deposition of Roger Mills, 6/12/90, 161:20-161:25), and led to postponement of the June 25 hearing date. This latest motion also seeks to displace the crucial class representation issue. In fact, the current class representatives seem to be trying to win the representation dispute by default through the current motion.
- 5-

Plaintiffs of certain actions taken by Defendants with respect to the operation of the DCSS since the entry of the Order on their motion for final dismissal (the "June 30, 1988 Order"), Plaintiffs have not referred to any legal precedent or prior order of this Court which specifically requires Defendants to provide Plaintiffs or the Court with prior notice of those actions. In addition, Plaintiffs' characterizations of Defendants' actions in this regard are misleading and inaccurate for the most part. Plaintiffs also ignore the fact that, since the entry of the June 1988 Order, Defendants have followed the same practice with respect to notifying the Court and the Plaintiffs of their actions that they followed prior to the entry of that order.
Finally, in their rush to have the Court act on the mandate from the Eleventh Circuit Court of Appeals, Plaintiffs ignore the very real possibility that the Defendants' Petition for a Writ of Certiorari will be granted by the Supreme Court and the decision of the Eleventh Circuit either modified or vacated. The petition, along with the petitions in cases from Topeka, Kansas, and Denver, Colorado, are being held pending a decision in Board of Education of Oklahoma City Public Schools v. Dowell, Case No. 89-1080. It is obvious that the Supreme Court intends to issue its first major school desegregation decision in over ten years and that whatever that decision is it will, in all likelihood,
- 6-

have effect in cases other than Dowell. If the law applicable to this case were to change after this Court had acted to impose
mandatory remedial measures on Defendants, it is entirely possible that the finite resources of the DCSS will be "committed wastefully and needlessly and irrevocably." The Court recognized as much in its April 25, 1990 conference with the parties4 •
The remainder of this response will be devoted to addressing
the various factual statements made by Plaintiffs in the brief
supporting their motion to point out where those statements were
misleading, inaccurate, or flatly untrue and why.
PLAINTIFFS' FACTUAL ALLEGATIONS
Plaintiff's inaccurate factual statements begin with their
motion. In it, they characterize the June 1969 Order entered by
the Court as requiring the Defendants "to take all actions 'with
the objection of eradicating segregation and perpetuating
desegregation.'" A review of the page of that Order cited by
Plaintiffs to support their characterization reveals that the
4 The Court: Okay. Well, it is frustrating to continue to wait on that. Obviously if cert. is denied, then all stops are out and this Court's moving ahead with what it must do. If cert. is accepted, we are still in a state of uncertainty, probably for several months or a year, until the case is argued and decided. But if cert. is accepted, I have some concern that I am going to start ordering a lot of things that may not be necessary. Transcript of the April 25, 1990 conference, page 7, line 19 through page 8, line 1.
- 7-

language concerning the objective to be pursued by the Defendants predecessors in interest refers only to "locating and designing new schools ... expanding existing facilities, and ... consolidating schools." Moreover, the Court recognized at that time that this objective could properly be pursued only "[t]o the extent consistent with the proper operation of the (school] system. "5
The only completely accurate factual statement contained in Plaintiffs' supporting brief concerns the failure of Defendants to deliver to them a particular report concerning "staff vacancies and assignments. "6 Defendants assume this report constitutes part of what Plaintiffs have referred to as the "Compliance Report" and that this term has reference to the various reports required by the provisions of the June 1969 Order. These reports were the subject of an earlier motion by Plaintiffs. 7 In that motion, Plaintiffs complained that Defendants had not filed any of the reports required by the June
5 Such a practical limitation on the pursuit of this objective was implicitly endorsed by the Eleventh Circuit Court of Appeals in its decision concerning the Court's initial disposition of Plaintiffs' motion to enjoin Defendants from expanding and constructing new facilities in an effort to relieve overcrowding at Redan High School. Pitts v. Freeman, 755 F.2d 1423, 1427 (11th Cir. 1985).
6 Plaintiffs' supporting brief, page 2. 1 See Plaintiffs' Motion to Enforce Court's Orders filed on or about July 12, 1989 (the "July 1989 Motion to Enforce").
- 8-

1969 Order since the entry of the June 1988 Order. Plaintiffs sought to have Defendants file those reports for the school years 1988-89 and 1989-90. Defendants' response to that motion indicated that it was their understanding that the June 1988 Order superseded the reporting requirements imposed by the June 1969 Order.
The July 1989 Motion to Enforce was disposed of by an order of the Court entered on November 16, 1989 which did not address the question of whether the Defendants' understanding of the effect of the June 1988 Order was correct. Instead, it denied the July 1989 Motion to Enforce with respect to the reports required by the June 1969 Order as moot based on a telephone conference held the day before in which counsel for the Defendants stated the records sought by the Plaintiffs were available and would be supplied to them. This was done with respect to student enrollment information, but Defendants' investigations with respect to this pending motion have revealed that Plaintiffs' counsel never received the reports concerning faculty members. Defendants have determined that this failure was an oversight on Defendants' part, for which they apologize to Plaintiffs and the Court. While Defendants wish to point out that the far more important faculty information for the period in question had already been provided to Plaintiffs in the September 29, 1989 Report to the Court on balanced staffing, Defendants
- 9-

acknowledge that this mistake should not have been made. A true and correct copy of the information required by the June 1969 Order for faculty vacancies and transfers is attached hereto as Exhibit "A". The Defendants regret any inconvenience this oversight may have caused.
Plaintiffs' complaint concerning the "report on anticipated student enrollment" is apparently directed to the information provided to Plaintiffs' counsel for the upcoming 1990-91 school year. 8 Plaintiffs' unqualified reference to "Magnet Programs" is misleading in that the report provided to Plaintiffs' counsel did include anticipated student enrollment in currently existing "Magnet Programs". It did not take into consideration anticipated student enrollment in those "Magnet Programs" which will be initiated during the 1990-91 school year. However, that information was provided to the Court and to the Plaintiffs in the "Report to the Court on Status of Compliance with Court of Appeals Mandate, Junior High Plans, and Bond Fund Expenditures" filed by Defendants on March 30, 1990 (the "March 1990 Report"). The enrollment period for these new "Magnet Programs" did not close until long after the anticipated student enrollment report was prepared. Thus, it would have been very difficult, if not impossible, for Defendants to include any useful information concerning the anticipated student enrollment in those "Magnet
8 Plaintiffs' support brief, p. 2-3. - 10 -

Programs" when they had no clear idea from which schools the
students for those programs would come. Plaintiffs had all of
the information available concerning anticipated student
enrollment in both the currently existing and to-be-initiated
"Magne·t Programs" when they received that report for the 1990-91
school year.
The same sort of thing happened with respect to the transfer
of the entire sixth grade of Chapel Hill Elementary School to
Murphy Candler Elementary School. At the time the anticipated
student enrollment report was prepared, no decision had been made
on how the overcrowding situation at Chapel Hill Elementary
School would be handled. At the time of the report there had
been no affirmative decision to move any of the sixth grade
students to any other school, therefore it is difficult to see
how Defendants could have done anything other than show those
children as attending that school. Defendants stand ready to
present evidence on the desegregative resolution of the
overcrowding problem at Chapel Hill Elementary. 9
9 The solution to the problem was agreed on after extensive consultation with representatives of the parents of the children affected and involves the temporary transfer of the sixth grade at Chapel Hill, a predominantly black school, to Murphey Candler, a school with a significant white student population. This is a temporary solution until the Chapel Hill Junior High School can be built and opened for student use, which should occur within the next two years, and will have the effect of decreasing the percentage of black students at Chapel Hill Elementary School as well as placing the black sixth graders from Chapel Hill in a more integrated environment. Similar temporary transfers of students have been done by the Defendants in the past without
- 11 -

As stated above, Defendants have filed a written response to the Motion to Compel concerning the alleged failure to answer adequately the interrogatories served in March 1990 (the "March 1990 Interrogatories"). For the purpose of responding to this motion Defendants simply point out that the same information concerning "school enrollments, capacities, and the M to M Program" was not requested by Plaintiffs' counsel in her letters to Defendants' counsel, the March 1990 Interrogatories and the Georgia Open Records Act request by Roger Mills.
For example, Plaintiffs' counsel initially requested information concerning "M-to-M enrollments," which was later clarified to mean "the numbers of students leaving which schools as well as the number of students received at which schools. "10 The March 1990 Interrogatories expanded this information request to include the race of the students participating in the program during the 1989-90 school year, the projected number of seats available for M-to-M students in the upcoming 1990-91 school year at each school, the schools that will be closed to the M-to-M program for the 1990-91 school year, the reasons why, and any "limitations on the program for the 1989-90 school year, and any projected limitations for the 1990-91 school year." 11 In
objection (e.g., to accommodate asbestos removal activities). 10 Motion to Compel, Exhibits A and C. 11 Motion to Compel, Exhibit E, Interrogatory nos. 6, 8, and
22. - 12 -

contrast, Mr. Mills Open Records Act letter asked only for "(d]ocuments showing for each school how the ceilings forM-to-M students were calculated and how certain schools were excluded from M-to-M student transfers" . 12
Similarly, Plaintiffs' counsel made no request for information concerning the capacity of each school within the DCSS, which was the information requested by Mr. Mills in his Open Records Act letter, until the March 1990 Interrogatories were served. In referring to the fact that those interrogatories "were not answered, even partially, within the thirty days required by law" , 13 Plaintiffs ignore the additional fact that they granted Defendants an extension of time within which to respond to those Interrogatories and that the response was actually provided by the date on which Defendants understood it was due . 14
Plaintiffs' statements concerning the Interrogatories they served on the Defendants in December 1989 (the "December 1989 Interrogatories") are even more misleading. Those interrogatories requested information concerning all legal fees and costs incurred by Defendants as a result of work done on their behalf by the law firm of Weekes & Candler, P.C., and
12 Exhibit B to Plaintiffs' Motion. 13 Plaintiffs' supporting brief, p. 3. 14 Motion to Compel, Exhibits F and H.
- 13 -

sought an itemization of the work done to incur those fees and a statement of the hourly rates paid for each attorney or other person who performed that work, as well as the hourly rates charged by these attorneys for similar work done by them on behalf of other "representative clients".
In contrast, the information requested by Francis Pauley under the Georgia Open Records Act was an "accounting of expenditures ... concerning the desegregation of the school system" since October 1989. This accounting was to include only the "payments" made to Defendants "regular Legal employees" and those made to other attorneys, as well as "fees" paid to consultants and experts who had assisted Defendants "in various ways", plus travel costs incurred by Defendants, their staff, and "the various attorneys and consultants".~
Defendants objected to the December 1989 Interrogatories about attorney fees as requesting irrelevant information, as well as information protected by the attorney-client privilege. There is no exception under the Open Record Act for irrelevant information, as there is under the discovery provisions of the Federal Rules of Civil Procedure. The validity of Defendants' objections to the December 1989 Interrogatories appears to have been conceded by the Plaintiffs since they have filed no motion to compel concerning them. Bringing up this dead issue now
~Exhibit C to Plaintiffs' Motion.
- 14 -

serves only to show a misunderstanding of federal court procedures.
Plaintiffs' assertion that Defendants "have dismantled many of the magnet programs presented to the Court in 1987 in support of their 1986 Motion to Dismiss, contrary to their promises to expand such programs "16 is simply not true. The June 1988 Order indicates that there were four magnet programs in existence at the time of the hearing on the Defendants' motion to dismiss and that Dr. Robert Freeman had testified at the hearing that the DCSS had plans to initiate magnet programs in the near future in three other schools. The June 1988 Order also indicated that DCSS had "two other magnet programs on the drawing board" and that it also operated "a number of integrated experience programs". 17 None of the then existing magnet programs referred to in the June 1988 Order have been "dismantled," and all of the magnet programs that Defendants had made plans to initiate, as testified to by Dr. Freeman, have, in fact, been initiated and are currently in existence.
The only programs referred to in the June 1988 Order that have been "dismantled" are the writing centers that had been established for 5th and 7th graders. These centers were referred to as "integrated experience programs" in the June 1988 Order and
16 Plaintiffs' supporting brief, p. 4. 17 June 1988 Order, pp. 19-20.
- 15 -

were severely criticized by Plaintiffs in testimony given at the hearing on the Defendants' motion to dismiss as ineffective. The writing center programs were "dismantled" in part to enable Defendants to comply with the provisions of the June 1988 Order requiring the equalization of teacher experience and training in all schools within the DCSS. All of the teachers who participated in those programs have been assigned as writing specialists to the majority black schools within DCSS.
Finally, the budget for magnet and other educational enhancement programs operated by DCSS has grown from a little over 5.3 million dollars for the 1986-87 school year to a little over 24 million dollars for the upcoming 1990-91 school year. This 24 million dollar figure does not include the sums that are to be spent on the magnet programs that will be started after the start of the 1990-91 school year. These sums will total over 6.7 million dollars. 18
Plaintiffs' reference to the resistance of Defendants to the "maximum utilization of the M-to-M Program", 19 apparently is concerned with the initial decision by the Defendants not to implement that program at a new elementary school (Pine Ridge Elementary), the availability of which for the beginning of the
18 All of the information concerning magnet schools referred to above is contained in Exhibit "B" attached hereto.
19 Plaintiffs' supporting brief, p.4. - 16 -

1989-90 school year was not certain until after the brochures for the M-to-M program for that school year had been printed. As was the case with respect to the portion of the July 1989 Motion to Enforce concerning the reports required by the June 1969 Order, Plaintiffs' motion to require the admission of three black students to the M-to-M program at Pine Ridge Elementary School was denied as moot, due to a satisfactory resolution of that issue by the parties.
Plaintiffs' reference to the failure of Defendants to notify the Court and them in a timely manner of changes in "school boundaries" incorrectly implies that the specific changes in "school boundaries" complained about were covered by the March 1990 Interrogatories. 20 In regard to this issue, it is important to note that it has been the standard operating procedure of the Defendants since the creation of the bi-racial committee in 1976 to approve school boundary line and attendance zone changes subject to their approval by that committee, which was then required to report any such changes to the Court. 21 In the June 1988 Order, the bi-racial committee was abolished, but the Court made no provision for the reporting of boundary line and attendance zone changes by the Defendants to any other entity.
20 Plaintiffs supporting brief~ p.4. 21 See Opinion and Order entered on November 3, 1976, pp. 25-26.
- 17 -

In its order entered on the July 1989 Motion to Enforce, the Court specifically denied Plaintiffs' request to reconstitute the bi-racial committee pending the resolution of Defendants' Petition for Writ of Certiorari to the Supreme Court.
Defendants actions with respect to approving and then notifying the Court of the boundary line and attendance zone changes necessitated by the opening of Browns Mill Elementary School in the upcoming 1990-91 school year and the anticipated opening of Salem Junior High School in early 1991 are consistent with their prior practice in this area. Under the circumstances, it is difficult to see how else Defendants' should have been expected to act in this regard. Moreover, even a cursory review of the March 1990 Report would have revealed to Plaintiffs that Browns Mill Elementary School was projected to open during the upcoming school year, and that this would require some adjustments to the existing attendance boundary lines. As pointed out by Defendants' counsel in his letter to the Court, the opening of Salem Junior High School will not necessitate a boundary line change, a fact which was also apparent given the information contained in the March 1990 Report.
As far as the March 1990 Interrogatories are concerned, the information requested in them was a description of "each attendance line change made beginning with the 1986-1987 school year." (emphasis supplied). 22 As of the date the Defendants
22 Motion to Compel, Exhibit E, Interrogatory No. 9. - 18 -

made their initial response to these interrogatories, no boundary line or attendance zone changes as a result of the hoped for opening of Browns Mill Elementary School had been "made". Plaintiffs were given information concerning all such changes that had actually been "made" by that date. In their supplemental response to the March 1990 Interrogatories, information concerning the planned boundary line and attendance zone changes necessitated by the opening of Browns Mill Elementary School was supplied to Plaintiffs.
Plaintiffs' statements concerning Defendants' specific assurances that "they would spend no bond funds nor proceed with any junior high plans" are flatly inaccurate. The assurances made by Defendants' counsel at the April 25, 1990 conference with the Court did not apply to the spending of bond money or the completion of plans for a junior high school that the Plaintiffs complain about. 23 The March 1990 Report clearly indicated that Defendants intended to use 7.5 million dollars of the first 40 million dollars of bond money for "computer enhancement" and 10 million dollars for the construction of a junior high school in the Southwest DeKalb/Cedar Grove area. 24 The March 1990 Report specifically stated that "two more junior
23 Plaintiffs' supporting brief, p. 6-7. 24 March 1990 Report, p. 37.
- 19 -

highs are currently under construction and are planned to open over the next three years", one of which was for the Southwest DeKalb/Cedar Grove area and that the DCSS "does not propose to suspend the ongoing construction projects". 25
The 5 million dollars for the purchase of computer equipment and related materials referred to in Exhibit F of Plaintiffs' supporting brief is part of the 7.5 million dollars for "computer enhancement" referred to in the March 1990 Report. Similarly, the Chapel Hill Junior High School referred to in Exhibit G of the Plaintiffs' supporting brief is the same school identified as the Southwest DeKalb/Cedar Grove Junior High School in the March 1990 Report.
Contrary to Plaintiffs' implications, 26 the fact that commitments had already been made by the Defendants concerning the construction of Chapel Hill Junior High School and the use of 15 million dollars of the first portion of bond funds to buy computers for DCSS schools was specifically referred to by counsel for Defendants at that conference. 27 Counsel for Defendants went on to refer to the March 1990 Report as
~ March 1990 Report, pp. 33-34. 26 Plaintiffs cite, out of context, to an excerpt from the transcript of the April 25, 1990 conference with the Court to attempt to support their point. 27 Transcript of April 25, 1990 conference, pp. 57-58.
- 20 -

containing a list of projects requiring the use of bond money to which Defendants were already committed. 28 At that time, counsel for Defendants assured the Court and Plaintiffs that Defendants would not "institute any new projects without first notifying the Court," which assurance has not been violated. 29
Plaintiffs' statements concerning the effect on black students of Defendants' magnet programs are almost as inaccurate as their statements concerning Defendants' assurances to the Court. 30 Although it is true that in order to make room for certain magnet programs which make extensive use of computers and other sophisticated equipment some black students who attend the regular programs in the schools in question will be moved into trailers, it is also true that some students in other magnet programs will be taught in trailers and not in regular classrooms. It is reasonable to assume that at least some of the white students who participate in these other magnet programs were previously taught in regular classrooms.
Plaintiffs' assertion that all additional resources being expended on majority black schools which house magnet programs will benefit only the children in those programs is totally
28 Transcript of April 25, 1990 conference, p. 61. 29 Transcript of April 25, 1990 conference, p. 61, lines 20-21. 30 Plaintiffs' supporting brief, p. 9.
- 21 -

false. To begin with, most, if not all, of the majority black schools in the DCSS will be receiving additional resources other than those for magnet program-related purposes. In addition, Defendants will make every attempt to coordinate the use of magnet program-related resources and the students in them in a manner that will benefit the whole student body of the school housing each magnet program.
Plaintiffs have demonstrated absolutely no basis for their assertion that "school boundary changes, student transfers, bond fund expenditures, the implementation of Magnet Programs ... violate the clear directive of this Court's 1988 Order requiring defendants to 'assure that resources are distributed equally to all students ... '". 31 The June 1988 Order required Defendants to equalize per pupil expenditures among all schools within the DCSS during the 1988-89 school year. Defendants were to file a report with the Court within two months of the end of that school year showing the progress they had made in this area. That report was filed on August 31, 1989, showing compliance with this directive.
Contrary to Plaintiffs' assertion in their supporting brief, 32 the Court entered an order on February 26, 1990, requiring Defendants to prepare and submit to the Court "a
31 Plaintiffs' supporting brief, p. 8. 32 Plaintiffs' supporting brief, p. 6.
- 22 -

proposal describing the remedial action the Defendants intend to take by the beginning of the 1990-91 school year to comply with the Order of the Court of Appeals" and outlining "the action they intend to take on their own initiative in the future in order to achieve maximum possible desegregation." Defendants have submitted this report. It would be unproductive to consider the alleged deficiencies of the March 1990 Report until a decision is made concerning who will speak for the plaintiff class concerning those alleged deficiencies.
Until that decision is made, the Defendants will continue to comply with the Court's orders requiring the filing of reports and its commitment to the Court and Plaintiffs concerning the expenditure of the remaining bond funds. What the Plaintiffs have failed to realize is that none of the Court's prior orders require the Defendants to give either the Court or the Plaintiffs prior notice of any of its proposed actions. Defendants have voluntarily assumed such a responsibility with respect to the expenditure of additional bond funds, but will not enlarge this responsibility further unless so directed by the court.
Respectfully submitted, WEEKES & CANDLER, P.C. Gary M. Sams Charles L. Weatherly J. Stanley Hawkins Attorneys for Defendants - 23 -

Post Office Box 250 Decatur, Georgia 30031 (404) 378-4300
- 24 -

For Exhibits "A" and "B" see Defendants' Response to Plaintiffs' Motion for a Preliminary Injunction, to Enforce the Mandate of the Court of Appeals, and to Enforce the Orders of this Court previously filed on August 2, 1990

CERTIFICATE OF SERVICE
This is to certify that I have this day served counsel for the opposing party in the foregoing matter with a copy of the
attached by depositing a true copy of same in the United States
Mail with adequate postage affixed thereon as follows: Ms. Marcia W. Borowski Stanford, Fagan & Giolito Suite 238 1401 Peachtree Street, N.E. Atlanta, Georgia 30309
Mr. Charles s. Johnson, III
Kurt Peterson Marquis Two, Suite 2600 285 Peachtree Center Ave. Atlanta, Georgia 30303
Boykin Edwards, Jr. 4319 Covington Highway Suite 309 M Decatur, Georgia 30035
Ms . Amy Totenberg 50 Hurt Plaza Suite 775 Atlanta, Georgia 30303
This W day of -+0;-.,t: =.- -/;,.q,"'y" "t'" 'zr:. ~. -____, 1990 .
WEEKES & CANDLER, P.C. Post Office Box 250 Decatur, Georgia 30031 (404) 378-4300

 
 Apalalsppteahrgeceposapwpieeesrreaconcpdhieeacsrke.eadsacgoaminpsltete
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
DEKALB COUNTY GEORGIA BRANCK
2958 RAINBOW DRIVE· SUITE 207 DECATUR. GEORGIA 30034 14041 243·3584
July 1, 1983

The Honorable William Bradford Reynolds Assistant Attorney General Civil Rights Division United States Department of Justice Washington, D. C. 20530

Re: Complaint for the Violation of Civil Rights by the DeKalb County (Georgia) School System

Dear Mr. Reynolds:

By vote of the Executive Committee of the National Associa-

tion for the Advancement of Colored People, DeKal b County Branch,

(hereinafter "NAACP"), I have been authorized to submit this complaint

against Mr. Paul Womack, Jr., Chairman, DeKalb County Board of

Education, Dr. Robert Freeman, Superintendent, DeKalb County School

System, and Dr. Edward Bouie, Assistant Superintendent, DeKalb County

School System, each individually, and in their official capacities, for

their violation of the civil rights of black children in DeKalb County.

This complaint urges an investigation by the Department of Justice into

the events which, in the opinion of the.NAACP, represent a conspiracy

by the aforementioned indi victuals to deprive the rights of black

children in the administration of the Majority-to-Minority Transfer

Program (hereinafter "M-to-M program") decreed by the United States

District Court in Pitts v. Cherry, Civil Action File No. 11946 (N.D. Ga.

1969).

.

The NAACP complains that Messrs. Womack, Freeman and Bouie sought to defeat the court ordered requirements of the M-to-M program through an active conspiracy to manipulate pupil attendance projection figures with the intended purpose and effect of limiting the rights of black children to attend a predominantly white scool. In so doing, Messrs. Womack, et al., conspired to limit and deprive rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as well as a standing order of the United States.
District Court, all in violation of civil and criminal laws of the

Honorable William Bradford Reynolds July 1, 1983 Page Two
United States, to-wit: 42 U.S.C.A. §1985(3); 18 U.S.C.A. §§241,
242 ..!/
1/ 42 U.S.C.A. §1985(3) states, in part:
If two or more persons in any State or Terri tory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
18 U.S.C.A. §241 states, in part:
If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; .. ~
They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.
18 U.S.C.A. §242 states:
Whoever, under color of any law, statute, ordinance, regulation, or custom willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.

Honorable William Bradford Reynolds July 1, 1983 Page Three
I. Factual Background.
On November 3, 1976, the late Judge Newell Edenfield found that the M-to-M program then being administered by DeKal b County School System was too restrictive to fulfill the constitutional rights of black parents and children to have a desegregated educational environment. Pitts v. Cherry, Civil Action File No. 11946 (Order, November 3, 1976)_g_/ The court issued its November 3, 1976 order to remedy the restrictive M-to-M program, and mandated that:
The M-to-M program be modified so that any student may transfer from a school where his race is in the majority to any other school within the county in which his race is in the minority.
Three years later, in 1979, the school system sought to modify the November 3, 1976 order so as to limit the availability of the M~to-M program to only black students who transfer to schools that contain less than 26% (or the system-wide black student enrollment percentage) black enrollment. By his May 9, 1979 order, Judge Edenfield, again, rejected attempts by the school system to limit the application of the M-to-M remedy:
[The] cases make clear that the choice of a school under an M-to-M program 1ies with the student, not the school system; thus, a 1imitation of the type proposed by defendants . . . which would interfere with a student's choice, would appear to be invalid, as this court recognized in its November, 1976 order.
Id., May 9, 1979 Order, p. 6.
Having sought at least twice to limit the availability of the M-to-M program through the proper judicial channels, we charge that the school system, through Messrs. Womack, Freeman and Bouie, agreed among themselves to limit the number of available M-to-M spaces in at least one school, Lakeside High School, and possibly others. The agreement to limit theM-to-M spaces was done intentionally to reduce the number of black students at predominantly white Lakeside without regard to the demands of either the aforementioned court order or the constitutional rights of the black children.
The following chronology of events has been widely reported in the media and constitute the operative facts of the conspiracy upon which this complaint is filed. It is urged that an investigation under your authority determine the accuracy of the reported facts, and, if
2/ A copy of the November 3, 1976 Order in Pitts v. Cherry is attached hereto as "Attachment 1."

Honorable William Bradford Reynolds July 1, 1983 Page Four
true, take such action as permitted under civil and criminal statutes so to prevent a re-occurrence.
On January 24, 1983, School Board Chairman, Paul Womack, met with some representatives of the PTA from the Lakeside High School area. During this meeting, Mr. Womack advised the representatives not to support a middle school plan if they did not want black students moving in to fill the classroom space that would be created. It was reported that School Board Vice Chairperson, Norma Travis, was present at this meeting.
On February 15, 1983, in the office of Superintendent Freeman, Chairperson Womack met with Superintendent Freeman, Dr. Bouie and Assistant Superintendent Dr. William Adams. During the February 15th meeting, Messrs. Womack and Freeman cited concerns of some members of the Lakeside High School community about the influx of blacks to Lakeside through theM-to-M program, and instructed Dr. Adams to close off the number of M-to-M transfers at Lakeside. According to reports _published in the May 23, 1983 edition of The Atlanta Journal, Dr. Adams said, "He [Freeman] told me, 'Bill, shut it off.'" Dr. Adams responded by stating that, "We can't do that. It would violate the court order, and upset the stability of the school system." Dr. Adams also is reported as stating that during the February 15th meeting, Dr. Freeman discussed the possibility of limiting available M-to-M space at Lakeside by closing Briarcliff High School or Cross Keys High School. Dr. Freeman further suggested to Dr. Adams that moving some of the special education classes from Chamblee High School to Lakeside would fill up space at Lakeside, otherwise availahle for black students exercising the M-to-M option. Associate Superintendent Bouie said, "I'll take care of it," after Dr. Adams expressed his reluctance to illegally limit the available space under the M-to-M program.
On February 21, 1983, Dr. Bouie submitted to the DeKalb County Bi-Racial Commit tee a copy of the proposed M-to-M brochure which contained a limit of 110M-to-M spaces at Lakeside. Heretofore, previous drafts of the same brochure did not place any limit on M-toM transfers to Lakeside.
The school system in April, 1983, abandoned the 110 pupil limit when it could not be justified. Dr. Freeman claimed that the 110 limit was a "miscommunication," and there never was any attempt to place an unjustifiable limit on M-to-M transfers to Lakeside.
The NAACP seriously questions the excuse of "miscommunication" since the later revelations by Dr. Adams in May, 1983 that the 110 figure was created for no reason except to limit the black student population at Lakeside.

Honorable William Bradford Reynolds July 1, 1983 Page Five
The crime of bank robbery cannot be ignored because the robber returns the loot. Likewise, the conspiracy to deny the right to exercise the M-to-M remedy cannot be overlooked because the school system abandoned the artificial 110 pupil limit only after it was caught red-handed.
The need for a government sanctioned investigation in this matter is compelling. The fate of public school children in our county is in the hands of many, none the least important are the hands of the elected and appointed leaders of the county's educational system. When the trust placed in these leaders to honor the laws is abused, it demands redress. It is all the more important that action be taken when the target of official deceit is the educational opportunity of our children.
Again, the DeKalb NAACP urges your receipt and investigation of our complaint. Our offices are available to you in any manner possible to assist in this matter which we consider to be of utmost importance to our association and to its members. We would appreciate being advised of your expected action on this request within the next two weeks.
Sincerely,
Coleman Seward President, DeKalb County NAACP
cc: The Honorable Larry D. Thompson The Honorable Daniel Rinzel The Honorable Curtis Anderson

 
 Apalalsppteahrgeceposapwpieeesrreaconcpdhieeacsrke.eadsacgoaminpsltete

IN THE UNIT!n STATES DISTRICT COURT
FOR 'l'liE NOR'XBERN DISTRICT OF GEORGIA
ATLANTA DIVISION

WILLIE EUGENE PITTS, a Hinor, hy his

t-1other and Hext Friend, MRS • ANNA

f>.·!AE PITTS J VICTOR t>ll\R'l1IN, a Hinor 1 by his Father and !~ext l;triend,

RODER"!' L. MAR'rUh KELVIN t FELICIA,

ALFREO, ORHA, and ALJl"R£DIA HEt•H>~;R­

SON, ~inors, by their Father and

Next Friend, RICHARD HENVr:RSO'N:

PATRICIA JOYCE REI:'!VES, a ~-1inor, by

her Hother and Hex t Friend, HriS •

ROSA LEY.: PJ~EVES 1 J\NTltONY FE!'!:!) and

CECILIA SEARCY, Hinors, by their

l·lother and Next .Friend, NFS. JUANITA

SF!ARCY: NED and BECKY STONf;, Minors ,

Ly their Father and Ue>:t Friend,

ALJfi<£0 E. sTONE I JR. J JOY I BRl DGET I
and SAUDRA BECKER, Htnors, by their

Father and Next Friend, LOUIS B.

!l£CK1Ut; and all others sirni larlv

situated,

·

Plaintiffs,

-V!l-

JIH CHERRY, Superintendent of
Schoola, t'lel<alti County, Georqia i DR. JAMES H. HINSON, JR., President, OeKalb Junior Colleqei and DEKALn COUNT¥ BOARD OF EDUCATION,

CIVIL AC1'IOU NO.

Defendants.

C 0 MP L A I N T

1. •rhe jurisdiction of this Court is invoked pursuant

to the provisions of 'l'i tl£~ 1.8, trni ted Stattua Code, Section

1343(3), this being a 2uit in equity authorized by law,

-Title 42, United stateo ... ...... , .. ... ..,_, ~

,..,.,,~_.,

.,._,,

"

"

Code,

Section

1983,

to

he

brought

to

redress the deprivation under color of ntat.e statute, ordin-

ance, regulation, custom or usag~ of rig~ts, privileges and

immunities secured by the Const 1tution and la"tlB of the Vni ted

States or by an'{ act of Conqress providing tor tho equal

rights of ci.tizena. Tht~t rights he:re sought. to be protected

are riqht.a secured by the Thirteenth 1\rntuidment and by the

00? l2ti

,•

equal protec~ion clauses of the Fourteenth Amendment of the Constitution of the Unttf!d States, Title 42, United States Codlll, Sections 1981 and 2000(d), and nections 80.4 and 181, et seq., 45 Code of Federal Regulations, as revised.

2. This is a proceeding for a preliminary and permanent injunction enjo!nin9 defendants from operating the public school syutetl of De:Kalb county1 Georgia on a racially segregated basis.

3. This is a class action brouqht hy the adult plaint.iffR

for the minor plaintiffs on behalf of themselves and on behalf

of other adults and minors similarly Gituated, purnuant to

the

provisions

of

Rule

the of 23 (b) (2) . --~-·

. .

F

e
.

d--

e

r
'

a.

l

Rulf.Ul

of

Civi 1

Procedure. There are two classes of plaint! ffs.. ~'.embers of

the first class are all adult liegro citizens and their mlnor

children, of the state of Georgia, who reside in DeKalb County,

Georgia.. Heml:~ra of the second clastJ are all adult white

citizens ;md their minor children, residinq in DeRalb County,

Georgia, who favor integration of thei.r ochools. The minorfio

are all eligible to attend the public schools of De.Kalb County,

Georgia. The members of l.:oth classes are all similarly

affected by the action of the defendants in maintaining and

operating the public school system of DeKalh County, Oeorqia

on a racially seqregated haeis. •rhe natnf;d plaintiffs adequately

represent. the interflst~ of each of thf)i.r ela!UUltt.

4. The adult plaintiff~ in this case are all citizens of the United States and of the State of ceorgia, residing in O.Kalb County, Georgia. Each adult plaintiff is the parent of one or more minor children who ara el.igihle tn attend the public schools, under the control of the defendants. Each minor plaintiff is likewise a citizan of the United States
and ot tho State of Georgia, residinq in r~Kalb County, Georgia.

-2-
007l2f)

5. All of the named plain~itts are member• of the

Negro :race with the exception of the adult plaintiffs ALFRED

E. STONE, JR., and LOUt~ E. DECKE~R, and the children named

of each. The race of th~a~ latter adult and minor plaintiffs

is white.

6. The minor plaintiffs attend the following grades

and schools within the syBtem administered by the defendants:

'1 ~.. J''t~~~ ..... i "'" 1 · 1. t ~ tm J:.. t.. '~ t lj
WILLIE EUGENE PITTS, e iqh'!:h qrada, Cross J,eys High, Scl:lool;

.

D"l\

.

.t..1 :, ¥ f3,hH.w fl•. .._

VICTOR ~tA'R.TIN, tenth 9~ada 1 Croas .Keys Uiqh Sohool7 KEJ..Vlt4, L. 'I ···1.'1 hi

...~...... I( t-l-

~

.. ··.

FELICIA and ALFJUm HENDERSON, Rock Chapel elementary eohool 1

t!fl\
OR!--'A and .ALFREDIA liENDER!lON, Li toni a Hiqh Sohoolt PATRICIA

,TOYCE :REEVES, fifth qrada, Lynwood P~rk elementa.ry achool1

ANTHONY REED, ninth grade, Cross l<Elys Hiqh School; CF.Cf~LIA

SEARCY, fifth grade, Jim Cherry Elem~ntary School; NED STONE,

eighth grade, Druid Hilla Hiqh School; nECKY S'.rONF., Farnbank

Elementary Sahool1 JOY and SANDRA .f.H~CKER, tlleventh qra.de,
Druid Hills nigh School r and .annxn~T BECK!<~R, seventtk qrade,

Fernl>ank Elementary School.

7. JIM CFU!!!U~Y, on. ••7AMES Ii. HINSO!!_, JR., and the OF.KALD COUN1.'Y BOJ\RD OF EDUCATION, DeKalb County, Georgia, are the defendants named herein. Det'l!ndamt J'IN CHBRRY is the Superintendent of the public !'lchoola ot neKalb· County, Geor9ia, and is the Chief Administrative Officer th~reof. He holds office pursuant to the laws of the State of Georgia, aubjeet to the authority and control of the l'lei<alh County noard of Education. Ue is sued in both his official and individual capac! ties. DR. JAMES H. Hit~SON, JR.. , i !J the President of DeKalb Junior Colleqe, a publ:i.e school under the authority and control of the neKalb County Board of Bducation. He is the chief adminiatrati ve off.i.cer thereof, and is sued in rJOth his official and individual capacities.

-J-
007127

8. The DeKalb County Board of Education exists pursuant to the Conati tution of t.htl State of Georqia, and the laws of the State of Georgia, as a gov4'trnroent.nl agency of the State of Georqia, charged with the governmental function of establishing, maintaininq and operating the public schools system ot Oe:Kalb County, Georqia. '!"he t?Ui::lic schools of De.Kalb County, Georqia are under the d.irect supervision and control of the defendants named herein ..

9. Defendant Df.~ALU COUNTY BOARD OF EDUCATION operates

77 elementary schools, 20 high schools, and approximately S

special schools in DeRalb County, Georgia. There are approx··

imately 74,930 students in the system, with 3,754, or 5.6 per

cent, being membera of the Neuro race. There are approximately

3,459 full tim,e f'aeulty memb«'ra employed by the system t~ith 199,

.

... ;...... '~ .~ ~-~ ' ... "

or 5.8 per cent, being members of the Negro race.

(a) 1~1vu of the e.l~tnentary schools in th• system are

attond0d solely l;y pur!l~ of the Negro :race. Forty-seven of

the elementary schools of the l!\lyster.rt are attended solely Ly

pupils of the white race. Sixteen elem&ntary schools in th!f!

system are attended by vh!te pupils in excet~s of ninety percent.

The remaining elementary schools in the system are at least

seventy-five per cent white.

(L) "t'wo of the hiqh schools in the system are attended

olely by pupils of the Ueqro race. .f'iva of the high schools in I the system are attended sol(~ly by pupils of the white race.

en high schools in the system are at l~ast ninety-five per
'I\~ent white. TtHi remaininq high school!~~ in th~.,..~ystem are at

east n4nety per cent white.

(c) The faeulty at thirty-seven of the elementary schools

n the system is all ~hit.e. The faculty at thirty-five of the

lement.ary schools consists of one Negro and the remainder

hites. The faculty at the remaining five sohoolN, which are

he achoola with all .Negro attendance., consists variou.-ly of

ll Negroes, all hut one Neqro, and .all hut t"'o Noqroes.
Otf7128
-4-

(4) The faculty at seven of the hiqh schools is all white. 'l'he faculty at three high schools is all white with the exception of one Neqro aach. The faculty at six high schools is all white with the exception of two Negroes each. The faculty at one high school is all .,.,hite with the exception of one Heqro. The faculties at the remaininq two hiqh schools, which have all N0gro attendance, is all Negro and all Negro with the exception of three whites, respectively.
(e) Tho principals and administrative officers of each school except the five all-Negro t~lementary schools and the tvo all-Neqro high schools are all white.
10. In the years since the deeiaion in Bro~....!..~--~~ard ~~~~~~~2.1!~LT~p~~!• defendants, while aotinq under color of the laws of th$ State of Georqia, have failed to effectuate an orderly transition to a unitary non-racial school system and continue to maintain and operate the public school system of De~alb County, Georqia on a racially seqreqated basis. Defendants presently hold themselveus out a.s operatinq the
I
li put-:.lic school system of DeKalb County, Georgia, on the basis
IIII of a two-part attendance plan. Zones are drawn for attendance
h
IIIi at each elementary and high school f hut pupils rGsi.d!ng in 'I any zone tl'lay exercise a "freedom of c::!l1oiee• and transfer to
!
I any other school \>titbin the sy!!!tem. The attendance zones ln
DeKalb are drawn, or ngerrymandered,« in such a way as to ensure all Negro attendance at five elementary schools and two hlqh schools. White persons livinq within the "Negro''
"•~ ...
attendance zones have exercised thei.r «freedom of ohoioe .. to avoid int.egrat.ion, and, as a result of hoth the zones and the freedou1 with which minority whites may transfer to schools in which whites are in the majority, the affirmative duty or burden of nwaninqfully comraencinq and promptly completinq
-.5-
007l2tl

the transition from. a dual Bohool system is illeqally shifted to Negro parents and their c:~hildren, or to \-rhite parents and their children who truay favor integration. The reliance of the defendants upon their "gerrywanoeredn zones and on their so-called "freedom-of-choice" t::lan has resulted in the maintenance of aohqols which are clearly identifiabl• as white or Negro. Indeed, in pa~t years, the defendants hav~ actually furniab.ad butil transportation to those pupils '"ho were transferrin9 out of their attandance 2ones for the purpose of avoiding integration.
11. Defendants are presently enga9inq or planning to engage in the refurbishinq and expansion of at least tw·o schools which are clearly identifiable as all-Negro schools.
12.. Attendance at KeRalb Junior College, operated by clefendanta presently includes 3,372 ,wl~~.t~.IJ., 70 Negroes, and
~oil . . . . ~ . . . . . .
20 others. The faculty at said college consists ot 117 white, no Negroes, and one person of another race.
13. negro pupila who attend integrated schools in the Del\alb County system are subject to academic, disciplinary, and physical harassrnant by the white faoulty and students of said schools. As a result of suoh treatment, Negro pupils attending said inteqrated schools are frequently suspended and cannot, accordingly, fully benefit from their inteQra.ted schooling.
14. The DeKalb County schools, on inforNtion and belief~ receive at least $2.3 million in funds from tho federal government, whictt is approximately eiqht per cent of the budqet of said sahools. Defendants have not yet submitted an acoeptahle "'plan of compliance"' with the United
-6-
00?1ao

States Department of Health, Education & Welfare, as required by Title VI of the Civi.l Hights J:..ct of 1964, and are in consequent danger of having said federal monies terminated. Said termination would work a hardship upon all the pupils of said County, and especially upon the Negroes represented herein, who are less well economically endowed than the white citizens of said county. The white citizens are thus in a better position to provide supplomentary educational materials and/or tutoring for their children if the federal funds are cut off.
15. The operation of the public school system of OeKalb County, Georgia, on a racially segregated basis, as hereinabove set forth, deprives the minor plaintiffs and other Negro or white students similarly situated of equal educational opportunities in violation of rights secured to them by the equal protection clauses of the f'ourteenth Amendment of the Constitution of the United States and hy Tltle 42, United States Code, Sections 1981 and 2000(d). The denial of eoual educational opportunities to the ~!nor·' Negro plaintiffs and others sitailarly situated impresses a badge of slavery and servitude upon them in violation of the Thirteenth Amendment of the Constitution of the Uni.ted states. The operation of the public school system of DnKalb County, Georgia, on a racially segreqated l~asis consequt~ntly results in irreparable injury to the minor plaintiffs and other students siiTtilarly situated. There is no complete, ade0uate or speedy remedy at law to compensate the :minor plaintiffs for the injury t'lhich they are presently sustainin9 alt'l a resul't of th'Ei oreration of
the public school system of DeKalh County, Creorgia, on a racially segregated hasis.
-7-
00?131

~ /
I
l

WHEREFOR£, Plaintiffs pray:

1. That precess may i11sue and he directed to each of the· said defendants, herein named, requirinq them to appear and answer this complaint;

2. '!'hat upon filinq of this complaint, t.his Court will advance this ease m\ the dooket and order a speedy hearinq thereof acoordinq to law;

3. That this Court will issue a preliminary injunction pendinq final dispoaition of thia case and a permanent in·junotion upon the final determination of this cause enjoining the defendants from operating the puhlic school aystem of PeKalb County, Georgia on a racially segregated hasisr

4. That the Court will order the defendants to immediately promulgate in every respect and detail the procedures the defendant9 will follow to promptly effectuate the transition to a unitary non-racial school system and that, upon the basis of said plan, the defendants be ordered to seek eontinuation of direct financ:l.al assistance from the Office of Edueation of the United t1tates Department of Health, Education and
Welfara; and

5. That this Court allot., plaintiffs their costs herein, including a reasonable attorney•s fee, and grant ssuch further, other or additional relie.f' as to the Court may appear just and proper in the premises.

1_~ ~L·----··--· HOliiTARD ~~OOR.P! I JR. PETER E. RINDSKOPF 859 1/2 Hunter st., N.W. Atlanta, Georgia 30314
JACK GREENBERG CHARLBS STEPHEN RALSTON 10 Columbus Circle New York, New York
ATTORNEYS FOR PLAINTtPFS

-8-

007132

 
 Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 1 of 15
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:68−cv−11946−WCO

CLOSED

Mills, et al v. Freeman, et al Assigned to: Judge William C. O'Kelley Demand: $0 Cause: 42:2000c−6 Discrimination in Education
Plaintiff
Valencia Mills a minor, by her parents and next friends,

Date Filed: 07/05/1968 Date Terminated: 09/25/1994 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Edward A. Hailes , Jr. NAACP General Counsel 4805 Mount Hope Drive Baltimore, MD 21215−3297 410−486−9191 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams NAACP General Counsel 4805 Mount Hope Drive Baltimore, MD 21215−3297 410−486−9191 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Berta Mills and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Roger Mills

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Adesina Scott

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 2 of 15

ATTORNEY TO BE NOTICED

Plaintiff Adreana Scott

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ardona Scott minors, by their parents and next friends,

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Cynthia Scott and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Major Scott

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ashley Armstrong and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
B'randi Armstrong minors, by their father and next friend,

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 3 of 15

ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Harold M. Armstrong

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Haraja El−Shabazz and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jihan El−Shabazz minors, by their parents and next friends

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Asahita El−Shabazz and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Narwanna El−Shabazz

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 4 of 15

Plaintiff James Somerville a minor, by his mother and next friend,
Plaintiff Carolyn Saunder
Plaintiff Nathan Jones a minor, by his parents and next friends,
Plaintiff Carolyn Jones and
Plaintiff Wayne Jones
Plaintiff Nadrah Falah

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 5 of 15

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Malik Falah

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Mangoor Falah and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Salim Sabir minors, by their parents and next friends,

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Mahasin Sabir and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Adib Sabir

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 6 of 15

Christina Thomas a minor, by her mother and next friend,

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Grace Thomas

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michael Creamer

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Steven Creamer and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Nicholas Creamer minors, by their mother and next friend,

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Marguerite Creamer

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address)

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 7 of 15

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Sandi Bailey and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Karla Bailey minors, by their parents and next friends,

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Evelyn Bailey and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Larry Bailey

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Brandon Russell a minor, by his parents and next friends,

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Karen Russell and

represented by Edward A. Hailes , Jr. (See above for address)

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 8 of 15

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kevin Russell

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michael Perry

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Gerald Perry and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Lacy Perry minors, by their mother and next friend,

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Nina Perry

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 9 of 15

Plaintiff Darius McVay and
Plaintiff Kevin McVay minors, by their father and next friend,
Plaintiff William McVay
Plaintiff Julia Stewart a minor, by her mother and next friend,
Plaintiff Rose Stewart
Plaintiff Jeezanhay Blake

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 10 of 15

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Halani Blake and

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Tashiana Blake minors, by their mother and next friend,

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Betty Blake

represented by Edward A. Hailes , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Willie Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Ann Trippe Johnson

represented by Boykin Edwards , Jr. Office of Boykin Edwards, Jr. 3951 Snapfinger Parkway Suite 345 Decatur, GA 30032 404−284−2888 Email: bej0310@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Spurgeon Johnson , III Holland &Knight 1201 West Peachtree Street, N.E. One Atlantic Center, Suite 2000 Atlanta, GA 30309−3400 404−817−8500 Email: charles.johnson@hklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 11 of 15

V. Defendant Robert R. Freeman Superintendent
Defendant Elizabeth Andrews
Defendant Norma Bergman
Defendant Phil McGregor
Defendant Lyman Howard
Defendant Donna Wagner
Defendant David Williamson
Defendant Paul Womack as
Defendant DeKalb County Board of Education members.

represented by Gary M. Sams Weekes &Candler 300 One Decatur TownCenter P.O. Box 250 150 East Ponce de Leon Avenue Decatur, GA 30031 404−378−4300 Email: gsams@weekescandler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M. Sams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M. Sams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M. Sams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M. Sams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M. Sams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M. Sams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M. Sams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M. Sams (See above for address)

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 12 of 15
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/25/1994
09/26/1994 09/28/1994
10/12/1994 10/17/1994 10/21/1994 11/01/1994 11/22/1994 11/30/1994 12/22/1994 12/27/1994
02/07/1995 02/16/1995 03/20/1995 03/28/1995 04/03/1995 07/25/1995

# Docket Text
SEE PAPER DOCKET for the record of all documents filed and other events related to this matter which occurred prior to 9/26/94. This matter is being opened and closed in ICMS on 3/28/95. (ddm) Modified on 03/28/1995 (Entered: 03/28/1995)
MINUTE SHEET re status conference held 9/26/94 before Judge William C. O'Kelley. Court will issue a scheduling order. (ddm) Modified on 03/28/1995 (Entered: 03/28/1995)
218 ORDER entered pursuant to 9/26/94 status conf. to schedule dates for ptys to submit briefs and evidentiary docs to the court. Dfts to submit brief/documents on or before 10/17/94; plas have 20 days to respond by Judge William C. O'Kelley. cc (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
219 ORDER DIRECTING dfts to provide court w/info as directed in 9/27/94 order by 10/22/94; plas have 20 days thereafter to respond by Judge William C. O'Kelley. cc &EOD 10/13/94. (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
220 BRIEF by dfts in support of final dismissal upon remand fm Supreme Court and Court of Appeals. (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
221 AFFIDAVIT of James R. Hallford, Ph.D., Dep.Superintendent, Adminis. and Finance, DeKalb Co. School System w/exhibits 1 through 8 att'd. (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
222 CONSENT ORDER extending time through 12/31/94 for response to dfts' submissions, by Judge William C. O'Kelley. cc (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
223 Certified copy of ORDER of U.S.Court of Appeals DISMISSING appeal #93−8907. cc (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
224 NOTICE of substitution of counsel: Pamela Sloan replaces Amy Totenberg as counsel of record representing amici in this matter. (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
225 BRIEF by plas in opposition to motion for final dismissal upon remand. (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
226 CONSENT ORDER extending time through 2/7/95 for Armstrong plas to respond to brief in support of final dismissal [220−1] on remand fm the Supreme Court &USCA by Judge William C. O'Kelley. cc (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
227 BRIEF of plaintiff−intervenors in opposition to dfts' request for final dismissal. (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
Request for Certificate of Readiness from Court of Appeals regarding appeal. USCA 93−8907. (rag) (Entered: 10/02/1995)
228 SUPPLEMENTAL BRIEF of plaintiff−intervenors in opposition to dfts' request for final dismissal. (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
SUBMITTED on order [218−1] and dfts request for final dismissal on remand to Judge William C. O'Kelley. (ddm) Modified on 04/11/1995 (Entered: 03/28/1995)
229 NOTICE atty Bruce K. Roberts, formerly employed as staff atty w/the NAACP, is no longer counsel for Mills plas and requesting that he formally withdraw as counsel for plas. (ddm) Modified on 04/11/1995 (Entered: 04/10/1995)
230 STIPULATION OF DESIGNATION OF RECORD by ptys re Appeal and Cross Appeals 93−8907 and 94−8204 as to docs that will constitute the record on appeal. (to WCO) (ddm) (Entered: 07/26/1995)

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 13 of 15

08/11/1995
09/05/1995 09/06/1995 09/08/1995
10/02/1995
10/10/1995 10/10/1995 10/11/1995 11/04/1995 11/13/1995 11/14/1995 11/16/1995 11/17/1995
12/22/1995 12/29/1995 12/29/1995 01/04/1996

RECORD ON APPEAL ret'd fm USCA, 11th. Record check revealed 12 vols. of transcript, 2 vols of docs Re: 88−8687. Trans. memo states "These are the original volumes which were previously reconstructed. Consolidated with 88−8775." (ddm) (Entered: 08/18/1995)
PHONE CONVERSATION re pla's request for hrng: ptys asking Court to decide exact issues remaining in case so they can be argued at a hrng in near future. (ddm) (Entered: 09/06/1995)
STENO NOTES of proceedings held 9/5/95 before Judge William C. O'Kelley, by Court Reporter Dennis J. Reidy. (ddm) (Entered: 09/06/1995)
231 ORDER DIRECTING dfts to submit new brief in support of final dismissal w/emphasis on categories ... [218−1] w/in 30 days of this order; DIRECTING plas to file response as to why court should not dismiss case entirely [218−1] focusing on issues ... w/in 30 days after dfts' brief is filed; dfts may file response w/in 15 days after plas' response is filed, by Judge William C. O'Kelley. (See order for add'l guidelines.) cc and by ctrm.dep.; USCA 9/21/95. (ddm) Modified on 09/21/1995 (Entered: 09/08/1995)
CERTIFICATE OF READINESS OF RECORD ON APPEAL with certified copy of docket mailed to USCA. (14 vols. of pleadings; 5 vols. of depositions; 38 vols. of transcripts and 3 boxes of exhibits (IN EXHIBIT ROOM). USCA 93−8907. (rag) (Entered: 10/02/1995)
232 MOTION by dfts for oral argument w/brief in support. (ddm) (Entered: 10/10/1995)
233 AFFIDAVIT of James R. Hallford, Ph.D. (ddm) (Entered: 10/10/1995)
USCA ack. receipt of COR. USCA 93−8907. (rag) (Entered: 10/12/1995)
SUBMITTED on dfts' motion for oral argument [232−1] to Judge William C. O'Kelley. (ddm) (Entered: 11/04/1995)
PROPOSED consent order for ext. of time within which pla−intervenor may respond to dfts' brief in support of final dismissal and in response to 9/8/95 order [231−1], [220−1]. (to WCO) (ddm) (Entered: 11/13/1995)
234 CONSENT ORDER extending time through 12/22/95 for pla−intervenor to respond to dfts' brief in support of final dismissal and to 9/8/95 order [231−1] by Judge William C. O'Kelley. cc ct.dep.clk (ddm) (Entered: 11/16/1995)
235 MOTION by plas to extend time to file response to dfts' mot. for final dismissal w/brief in support. (ddm) (Entered: 11/16/1995)
236 ORDER GRANTING pla's mot. to ext. time until 12/22/95 to file response to dfts' mot. for final dismissal [235−1]; GRANTING dfts' mot. for oral argument [232−1]; oral argument set for 1/4/96 at 9:30 AM , by Judge William C. O'Kelley. cc (ddm) (Entered: 11/17/1995)
237 BRIEF OF PLAINTIFF−INTERVENORS pursuant to 9/8/95 order [231−1]. (ddm) (Entered: 12/26/1995)
238 SECOND BRIEF by plas in OPPOSITION to dfts' mot. for final dismissal upon remand. (ddm) (Entered: 01/02/1996)
239 MOTION by counsel for MILLS plas to ext. time to file 2nd brief in opposition to dfts' mot. for final dismissal upon remand w/brief in support. (to WCO) (ddm) (Entered: 01/02/1996)
ORAL ARGUMENTS HEARD re dfts' mot.to dismiss case before Judge William C. O'Kelley: orally GRANTED pla Mills' mot.to ext.time to file 2nd brief to dfts' mot.for final dismissal [239−1]; ptys have 20 days to submit add'l documentation re mot.to dismiss; clk submit on mot.at expiration of time using response brief [220−1] (mot.to dismiss recorded on paper dkt); dfts may reply to plas' briefs [237−1 and 238−1] in one doc. Court has orig.file. (ddm) (Entered: 01/05/1996)

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 14 of 15

01/05/1996 01/19/1996 01/19/1996
01/19/1996 01/24/1996 01/24/1996
01/31/1996
02/05/1996 02/06/1996 02/08/1996 02/08/1996 02/08/1996
02/08/1996 02/12/1996 02/13/1996 02/20/1996 02/26/1996
03/01/1996 03/04/1996 03/07/1996

STENO NOTES of proceedings held 1/4/96 before Judge William C. O'Kelley, by Court Reporter Dennis J. Reidy. (ddm) (Entered: 01/05/1996)
TRANSCRIPT filed re proceedings before Judge William C. O'Kelley held 01/04/96. (ddm) (Entered: 01/19/1996)
240 ORDER DIRECTING ... ct.rptr to provide copy of transcript of hrng held 1/4/96 to atys for intervenor plas; intervenor plas may file brief addressing those issues ... 20 days of the date of this order, may file mot. for hrng ..., by Judge William C. O'Kelley. cc w/cy of transcript to counsel for intervenor plas. (ddm) (Entered: 01/19/1996)
241 REPLY BRIEF in SUPPORT of final dimissal and in RESPONSE to 9/8/95 order [231−1] by dfts. (ddm) (Entered: 01/22/1996)
242 NOTICE of evidentiary filing by dfts: afdt of James R. Hallford, Ph.D. w/att'd exhibits. (ddm) (Entered: 01/24/1996)
243 AFFIDAVITS by intervenor−plas in OPPOSITION to dfts' mot. to dismiss [220−1]. (NOTE: motion to dismiss recorded on paper docket.) (ddm) (Entered: 01/24/1996)
Ltr fm Southeastern Legal Foundation, Inc. instructing that G. Stephen Parker be removed and Henry D. Granberry, III be added to service list and updating address. (ddm) (Entered: 01/31/1996)
244 Certified copy of ORDER of the U.S. Court of Appeals granting appellants' motion for voluntary dismissal of appeal with prejudice. (so) (Entered: 02/07/1996)
245 Proposed Findings of fact and conclusions of law in support of Final Dismissal by dfts. (so) (Entered: 02/07/1996)
246 Affidavit of Evelyn Bailey. (bsm) (Entered: 02/09/1996)
247 MOTION by intervenor−plaintiff for leave to file evidentiary material w/brief in support. (ddm) (Entered: 02/12/1996)
248 POST HEARING MEMORANDUM by intv−pla in re order [240−1] and in OPPOSITION to motion to dismiss [220−1]. [mot.to dismiss recorded on paper dkt] (ddm) (Entered: 02/12/1996)
249 Received notice of filing of original discovery by intv−pla w/listed discovery. (ddm) (Entered: 02/12/1996)
SUBMITTED on order [240−1] to Judge William C. O'Kelley. (ddm) (Entered: 02/12/1996)
250 ATTACHMENTS by intv−pla to post−hearing memo [248−1]. (ddm) (Entered: 02/14/1996)
251 MOTION by intrv−pla for oral argument re mot.to dismiss w/brief in support. (ddm) (Entered: 02/20/1996)
252 ORDER GRANTING mot.for oral argument re mot.to dismiss [251−1] [240−1]; hearing set for 3/7/96 at 11 AM, by Judge William C. O'Kelley. cc by ct.dep. [Note: file retained by court.] (ddm) (Entered: 02/27/1996)
SUBMITTED on mot. for leave to file evidentiary material by intv−pla [247−1] to Judge William C. O'Kelley. (ddm) (Entered: 03/01/1996)
253 RESPONSE by intv−pla in OPPOSITION to dfts' proposed findings of fact ... [245−1]. (ddm) (Entered: 03/05/1996)
ORAL ARGUMENT HELD on dfts' mot.to dismiss [220−1] before Judge William C. O'Kelley; no one appeared for plas; court rec'd fax that plas felt appearance unnecessary as they participated in 1/4/96 argument. Arguments of pla−intv and dfts (satisfies [251−1]) heard; matter taken under advisement. (ddm) (Entered: 03/07/1996)

Case: 1:68-cv-11946-WCO As of: 02/20/2013 03:36 PM EST 15 of 15

03/11/1996 03/15/1996 03/19/1996
03/27/1996 06/12/1996
06/17/1996 07/01/1996 07/12/1996 07/16/1996 07/19/1996 07/22/1996 07/22/1996 08/23/1996 08/30/1996
09/06/1996 09/15/1997 09/15/1997
09/17/1997 07/22/1998 07/24/1998 10/29/1998

Steno notes of proceedings held 3/7/96 before Judge William C. O'Kelley by Court Reporter Dennis J. Reidy. (bsm) (Entered: 03/11/1996)
254 HEARING MEMORANDUM by intvr−pla outlining ... issues ... to address in 3/7/96 hearing. (ddm) (Entered: 03/18/1996)
255 ORDER GRANTING nunc pro tunc pla−intv mot.for leave to file evidentiary material [247−1] (mat'l filed filed following 3/7/96 hrng), by Judge William C. O'Kelley. cc (ddm) (Entered: 03/19/1996)
Copy of 3/19/96 order [255−1] to Pamela Stone ret'd undeliverable. (ddm) Modified on 03/27/1996 (Entered: 03/27/1996)
256 ORDER: DeKalb County School System's mot. for final dismissal of this case is GRANTED; court finds DCSS has attained unitary status ...; all injunctive decrees are dissolved; DCSS shall resume full control over operation of schools ..., (see order), by Judge William C. O'Kelley. cc (ddm) (Entered: 06/13/1996)
Copy of order [256−1] addressed to G. Stephen Parker ret'd as undeliverable − forwarding order expired. (ddm) (Entered: 06/17/1996)
Copy of order [256−1] mailed to aty Bruce K. Roberts ret'd, moved, undeliverable. (ddm) (Entered: 07/01/1996)
257 JOINT MOTION to ext.time for filing notice of appeal with brief in support. (to WCO) (ddm) (Entered: 07/13/1996)
258 ORDER APPROVING joint motion to ext.time for filing notice of appeal [257−1] through 8/12/96 by Judge William C. O'Kelley. cc (ddm) (Entered: 07/16/1996)
Ret'd mail: copy of order [258−1] mailed to Aty Bruce K. Roberts. (ddm) (Entered: 07/19/1996)
Copy of order [258−1] addressed to G. Stephen Parker ret'd undeliverable. (ddm) (Entered: 07/22/1996)
Copy of order [258−1] ret'd as undeliverable. (ddm) (Entered: 08/05/1996)
FORTHWITH LETTER from U.S. Court of Appeals regarding request certificate appeal [0−0]. USCA# 94−8204. (mmw) (Entered: 08/30/1996)
Certified and TRANSMITTED RECORD to U.S.C.A. ( 14 volumes of pleadings, 5 volumes of depositions, 38 volumes of transcripts and 3 boxes fo exhibits). USCA# 94−8204. (mmw) (Entered: 08/30/1996)
USCA ack. receipt of ROA and certified copy of docket. USCA# 94−8204 &93−8907. (mmw) (Entered: 09/10/1996)
259 Certified copy of JUDGMENT OF USCA AFFIRMING the judgment of this court. RE: appeal USCA dkt. # 94−8204 (oug) (Entered: 09/17/1997)
Record on appeal returned from USCA re: appeal USCA dkt. # 94−8204. (3 Boxes of Exhits) 1 folder of exhibits and 52 volumes of record will be sent at a later date. (oug) (Entered: 09/17/1997)
Record on appeal returned from USCA re: appeal USCA dkt. # 94−8204 (One folder of exhibits and 52 volumes of record) (oug) (Entered: 09/23/1997)
Exhibits by plaintiffs returned to Derwin Ross of NAACP (fmm) (Entered: 07/22/1998)
Certified mail receipt green card returned re: exh pickup as to plaintiffs (fmm) (Entered: 07/27/1998)
Exhibits by defendants returned to Atty Sams (fmm) (Entered: 10/29/1998)

 
 Mo. 89-1290-CFX Status: GRANTED

Title: Robert R. Freeman, et al., Petitioners v. Willie Eugene Pitts, et al.

Docketed:

court: United States court of Appeals

February 12, 1990

for the Eleventh Circuit

Counsel for petitioner: Lee,Rex E.

counsel for respondent: Hansen,Christopher A., Chachkin,Norman J.

NOTE: Due 021190-SON

Entry Date Note

Proceedings and Orders

---------~---------------------------------------------------------------------

1 Nov 22 1989 P Application (A89-401) for a stay of mandate of Eleventh

Circuit, submitted to Justice Kennedy.

2 Nov 22 1989

(A89-401) Order that the mandate of the United states

Court of Appeals for the Eleventh Circuit, case Nos. 88-

8687 and 88-8775, is stayed pending receipt of response

to the application to be filed on or before 4:00 p.m.

TUesday, November 28, 1989 and referral of the matter to

the Court for consideration at the conference on Friday,

December 1, 1989 ..

3 Nov 28 1989

Response to application (A89-401) filed by respondents.

4 Nov 29 1989

(A89-401) Reply to opposition filed by petitioners.

5 Dec 4 1989

(A89-401) The application for stay of mandate of the

United States Court of Appeals for the Eleventh Circuit

presented to Justice Kennedy and by him referred to the

Court is denied. The order heretofore ente:::ed by Justice

Kennedy on November 22,.1989 is vacated.

6 Feb 12 1990 G Petition for writ of certiorari filed.

7 Mar 5 1990 Brief amicus curiae of Georgia School Boards Assn. filed.

10 Mar 5 1990 X Brief amicus curiae of National School Boards Assn. filed.

8 Mar 14 1990

DISTRIBUTED. March 30, 1990

9 Mar 16 1990 X Brief of respondents Pitts, Willie, et al. in opposition

filed.

11 Mar 23 1990 X Reply brief of petitioners Robert Freeman, et al. filed.

12 Nov 29 1990 supplemental brief of petitioners Freeman, et al. filed.

13 Jan 14 1991

REDISTRIBUTED. January 18, 1991

15 Feb 1 1991

REDISTRIBUTED. February 15, 1991

16 Feb 19 1991

Petition GRANTED.

********************************************************

18 Mar 27 1991

Order extending time to file brief of petitioner on the

merits until May J, 1991.

22 May 1 1991 Brief amicus curiae of Intervenors in carlin v. Bd. of

Education san Diego filed.

19 May J 1991 Joint appendix filed.

•

Volumes I and II

20 May 3 1991 ·Brief of petitioner k -,4irt Freeman, et al. filed.

21 May 3 1991 Brief amici curiae of Plaintiff-Intervenors filed.

23 May 3 1991 Brief amicus curiae of United States filed.

~4 May 3 1991 Brief amicus curiae of Southeastern Legal Foundation, Inc.

filed.

No. 89-1290-CFX

• Entry Date Note

Proceedings and Orders

~~~~--~----------------------------------------------~----------·~--------------~

25 May 16 1991 G Motion of the Solicitor General for leavo to participate

in oral ar9Qaent as amicus curiae and for divided

a~nt filed.

26 May 28 1991

Motion of the Solicitor General for leave to participate

in oral argument as amicus curiae and for divided

argument GRANTED.

28 May 29 1991

Order extending time to file brief of respondent on the

merits until June 21, 1991.

29 Jun 21 1991 Brief amici curiae of NAACP, et al. filed.

30 Jun 21 1991 Brief amicus curiae of Lawyers' Committee for Civil Rights

Onder Law filed.

31 Jun 21 1991 Brief of respondents Willie Pitts, et al. filed.

32 Jul 15 1991

CIRCULATED.

33 Jul 19 1991

SET FOR ARGUMENT MONDAY, OCTOBER 7, 1991. (1ST CASE)

34 Jul 24 1991 X Reply brief of petitioners Robert Freeman, et al. filed.

35 Aug 14 1991

Record filed.

\11

Received certified record from USCA 11.

36 Oct 7 1991

ARGUED.

LVaa~-J.aso,...
No.---

ea;z;.:;z~:.-.
J I L &D
Fll It . .
J

IN THE

\ ...........,-.,._,._--

i'uprrmr O!nurt nf t4r llnitrb &tatrs

OCTOBER TERM, 1989

ROBERT R. FREEMAN, et al.,

v.

Petitionet·s,

WILLIE EUGENE PITTS, et al., Resp01ulen ts.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

GARYM.SAMS

REXE.LEE *

CHARLES L. WEATHERLY

CARTER G. PHILLIPS

J. STANLEY HAWKINS

MARK D. HOPSON

WEEKES & CANDLER

SIDLEY & AUSTIN

One Decatur Town Center

1722 Eye Street, N.W.

Sujte300

Washington, D.C. 20006

Decatur, Georgia 30031

(202) 429-4000

(404) 378-4300

Counsel for Petitioners

Robert R. Freeman, et al.

February 12, 1990

* Counsel of Record

WILSON· EPES PRINTING Co., INC. • '789·0096 ·WASHINGTON, D.C. 20001

QUESnONSPRESENTED 1. Whether a school district is barred from obtaining a finding of unitariness with respect to student assignments solely because other aspects of the school district)s operations, such as faculty assignments, have not simultaneously achieved unitary status for a period of three years. 2. Whether a formerly de jure school district, which achieved effective desegregation in student assignments in 1969 by closing its blae.k-only schools and adopting a court-ordered neighborhood school plan, is nevertheless obligated to remedy the segregative effects of massive demographic changes that occurred over the past 20 years which were completely beyond the school district's control.
(i)

ii
LIST OF PARTIES
In addition to the parties listed in the caption, the· following persons, members of the DeKalb County Board of Education, are additional petitioners:
Lyman Howard Norma Travis Phil McGregor Donna Wagner Elizabeth Andrews
The following persons, as individual representatives of the class of minor plaintiffs, are additional respondents:
Victor Martin Kelvin Henderson Felicia Henderson Alfred Henderson Orma Henderson Alfredia Henderson Patricia Joyce Reeves Anthony Reed Cecilia Searcy Ned Stone Becky Stone Joy Becker Bridget Becker Sandra Becker Monica Rocker John Johnson Devett Smith Frankie Prather Princess Mills ·~· · Mark Anthony Wharton

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................

i

LIST OF PARTIES .......................................................... ii

TABLE OF AUTHORITIES ···--·-·····························-··· iv OPINIONS BEWW .......................................................... 1

JURISDIC'I'ION ................................................ --·-··········· 1

CONSTITUTIONAL PROVISIONS INVOJ..~VED..........

2

STATEMENT ····--··········-···········-··············-··············-··-··· 2 REASONS FOR GRANTING THE PETITION .......... 11 CONCLUSION..................................................................... 21

(iii)

iv

CASES

TABLE OF AUTHORITIES

Page

Board of Educ. of Valdosta, Georgia v. United
States, 489 U.S. 1007 (1978) .................................. 15 Brown v. Board of Educ., No. 87-1668, slip op.
(loth Cir. 1989) ..................................................... 19
Bowman v. County School Bd., 882 F.2d 826 (4th
Cir. 1967) .................................................................. 2
Dayton Bd. of Educ. v. Brinkman, 488 U.S. 406

(1977) ······································································· 16
Estes v. Met·ropolitan Branches of the Dallas

NAACP, 444 U.S. 487 (1980) ............................... 17,21

Green v. Cou'P-ty School Bd., 891 U.S. 480 (1968) ..passim

Keyes v. School Dist. No.1, 413 U.S. 189 (1973) .... 20

Keyes v. School Dist. No. 1, No. 85-2814, 1990

Westla.w 5661 (lOth Cir. Jan. 81, 1990) .............. 14
Milliken v. Bradley, 418 U.S. 717 (1974) .............12, 16, 17
M~lliken v. B'radley, 483 U.S. ·267 (1977) .............12, 16, 17

Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987) ......passim

Pasadena City Bd. of Educ. v. Spangler, 427 U.S.

424 (1976) ................................................................passim

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1 (1971) ...........................................................passim

United States v. Jefferson County Bd. of Educ.,

380 F.2d 385 (5th Cir.), cert. denied, 389 U.S.

840 (1967) ·......................................................... .....

s

United States v, Montgo1nery County Bd. of Edut:.,
895 u.s. 225 ( 1969) ................................................. 12

United States v. Overton, 834 F.2d 1171 (5th Cir.

1987} ......................................................................14, 19, 20

Washington v. Davi.<r, 426 U.S. 229 (1976) ............. 5

Youngblood v. Board of Pub. Instruction, 448 F.2d

770 (&th Cir. 1971)................ ................................. 5

STATUTES
28 u.s.c. § 1254(1) ...................................................... 2

v

TABLE OF AUTHORITIES-Continued
CONSTITUTIONAL AMENDMENTS U.S. Const. amend. XIV, § 1.......................................

Page 2

OTHER AUTHORITIES
Note, Elimina.ting the Continuing Effects of the Violation: Compensatory Education a.s a. Remedy for Unlawful School Segregation, 97 Yale L.J.
1173 (1988) ·····················································-······· 15 U.S. Department of Justice, Educational Oppor-
tunity Litigation Section, Ca.se Load List (May
1988) ······················--··········-·······-------·-······················· 21

I \

IN THE
&uprrmr Grnurt nf tltr 11uittb &tntrs
OCTOBER TERM, 1989

No.-

RoBERT R. FREEMAN, et al.,

v.

Petitwn.ers,

WILLIE EUGENE PITTS, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Rllbert R. Freeman, et al., the members of the DeKalb County Bo~rd of Education ("the Board") and representatives of the DeKalb County School System ("DCSS") , hereby petition for a writ of certiorari to review the judgment and opinion of the United States Court of Appeals for the Eleventh Circuit.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a24a) is reported at 887 F.2d 1438 (11th Cir. 1989). The district court's memorandum opinion and order of June 30, 1988 (App., infra, 25a-72a) is not reported.
JURISDICTION
The opinion of the court of appeals was entered on October 11, 1989. App., infra, 1a-24a. Rehearing was denied on November 13, 1989. App., infra, 8Sa-84a. The

2
jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
The Fourteenth Amendment to the Constitution of the United States provides, in relevant part, that:
No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1.
'
STATEMENT
1. DeKalb County, Georgia, which surrounds the cities of Atlanta and Decatur to the north, east and south, is a predominately urban and suburban region with a population of more than 450,000. App., infra, 38~ The DeKalb County School System ("DCSS") presently serves almost 80,000 students in more than 90 schools and is the largest school district iiLthe state.· App., infra, 3a. In 1968, black students constituted approximately 6% of the DCSS student population; as of 1986, blacJi students constituted· 47% of that population. App., infra, 4a, 74a.1
Prior to the 1966-1967 school year, the DCSS had maintained dual attendance zones for blacks and whites. In the 1966-1967 schooJ.~c~ear, the DCSS replaced the dual zones with a system of geographic zones and a "freedom of choice" transfer plan. However, that "system had no significant impact on the former de jure black schools."
App., infra, 33a. In 1968, this Court held in Green v:
County School Bd., 391 U.S. 430, 440 (1968L that if a freedom of choice plan "fails to undo segregation, other
means must be used to achieve this end." (quoting Bow-
t The most rP.cent school board report to the district court, dated December 1.2. 1989, shows that the student population consists of 57% black students. Hispanic and Oriental students comprise an additional 7% of Lhe student population.

3
man v. County School Bd., 8S2 F.2d 326, 838 (4th Cir.
1967).
Almost immediately after that decision, the respondents, certain black school children in DeKalb County and their parents, filed this class action in the United States District Court for the Northern District of Georgia on behalf of all black school children in the county. App., infra, 25a. The complaint alleged that the DCSS operated a racially segregated school system. App., infra, 26a;
Pitts v. Cherry, Complaint, No. 11946, at '1T 9-10 ~.D.
Ga. July 5, 196S). Following the filing of this ~n,
the ness immediately and "voluntarily undertook to
work with the Department of Health, Education and Welfare {HEW), to develop a final and terminal plan of desegregation." App., infra, 26a. Less than one year after the filing of the complaint, after full briefing and hearings, the district court entered its desegregation order. App., infra, 33a, 74a. That order "abolished the 'freedom of choice' plan and implemented a single neighborhood school attendance policy." App., infra, 88a, Sa. In addition, " [a] II of the remaining de jure black schools from the previous dual system were closed." ld. at 38a.2
Mter the district court's initial desegregation order, the case remained largely inactive until 1975, app., infra, Sa, when respondents sought certain modifications in the operation of the school system, including the majority-

2 The 1969 order was derived, in large part, from the form

decree set forth by the old Fifth Circuit (i.e., the court as consti-

tuted before it was split into the Eleventh and Fifth Circuits} in

United. States v. Jefferson County Bd.. of Ed.uc., 380 F.2d 385 (5th

Cir.) (en bane), cert. denied, 889 U.S. 840 (1967). Consequently,

certain portions of the order were irrele\'ant to the situation in

DeKalb County. For example, the requirement that certain special

programs be instituted at former all-black schools (app., infra., 8la-

82a) had no application in DeKalb County because all forrterly

all-black schools were closed.

\

4
to-minority ("M-to-M") program,8 the assignment of staff and the drawing of certain school attendance zones. App., infra, 26a n.1. In response, the district court ordered certain adjustments in its outstanding injunction, including a requirement that the M-to-M program be revised to provide free transportation. App., infra, 8a. The court also created a court-appointed Bi-racial Committee to oversee ('proposed boundary line changes, school openings and closings, and the M-to-M program." App., infra, 4a, Sa, 26a. Between 1977 and 1979, the DCSS also filed several motions in the court seeking relatively minor modifications of the 1969 decree. App., infra, Sa.4 For the most part, however, the district court "has rarely been asked to intervene" in the operation of the school system and the "parties have worked together in the best interest of the (DCSS] ." App., infra, 26a.
In 19S3, the respondents rPt;urned to the district court contending, in part,_ that "the DCSS's proposed expansion of predominately white Redan High School" would have
a Under this voluntarily implemented program, students may transfer from schools in which their race is a majority to schools in which their race is a minority. App., infra, 4a.
4 In 1977, the court approved the Board's boundary line change for one of the elementary schooLq, after determining, following full briefing and hearing, that the proposed change met constitutional standards.· App., infra, 26a n.1. In 1978, the district court denied the Board's request to exclude kindergarten and special education programs from the M-to-M program. ld. In 1979, the Board-at the request of the Bi-racial committee-moved to amend the M-to-M program so that only those schools whose percentage of black students did not exceed system-wide percentages of black students would be eligible to receive transfers of black students. The "Biracial Committee had suggested that such a limitation might help stop white flight from t::-ansitional schools and neighborhoods." Id. The district court, however, concluded that the shifting racial composition in certain schools in the southern portion of the county · "was caused by the changing complexion of the neighbot:hs, rather than the effect of the M-to-M program:• id. at 27a. n • and accordingly denied the motion.

0
a segregative effect (app., infra, Sa) and seeking an injunction to halt the expansion. In the course of ruling on that motion, the district court made a finding that "the DCSS achieved unitary status." App., infra, 9a. The court reasoned that, based on that observation, there was no basis for ordering the additional relief sought by respondents, because "the school board's decision to build the addition to Redan was not motivated by unlawful
racial considerations." Pitts v. F'reeman, No. 11946, Mem. Opinion (2/22/84), at 8 (quoting Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1, 28 (1971) ; Wash-
ington v. Davis, 426 U.S. 229, 240 (1976) ) ; see app.,
infra, 8a-9a..
On appeal, a panel of the Eleventh Circuit reversed, holding that the district court erred in declaring the DCSS to be a unitary system without following the established procedure of providing respondents with
notice and a hearing on that issue. Pitts v. Free'man
(Pitts 1), 755 F.2d 1423, 1426 (11th Cir. 1985) ; see app., infra, 9a/' The court of appeals also held that until the DCSS "achieves unitary status" under appropriate standards, the DCSS has a continuing Haffirmative duty" to solve its overcrowding "in such a way that it furthers desegregation . . . ." ld. at 21a, 9a. "In light of the [petitioners'] affirmative duty to desegregate," the panel concluded that "it was error for the district court to hold that the [DCSS's] planned expansion of Redan High School could be enjoined only if it was motivated by discriminatory intent." 755 F.2d at 1427.6
5 The old Fifth Circuit applied a "three year rule" which required that the district court retain jurisdiction over a school desegregation case for a period of no less than three years. This rule also required that even after three years, the case could not be dismissed without notice to plaintiffs and opportunity for them to show cause why the court should retain jurisdiction. See Young-
blood v. Board of Pub. Instruction, 448 F.2d 770 (5th Cir. 1971).
e On remand, the district court concluded that petitioners' plans concerning Redan High School would "foster integration and accom-

6
2. On January 16, 1986, the petitioners filed in the district court a motion for a declaration that the ness had achieved unitary status and for final dismissal of the case. App., infra, 27a. The court conducted a three-week trial on those issues. App., infra, 9a. In its June 30, 1988 opinion, the district court stated that while the "meaning of unitary status has not been clearly defined by the Supreme Court," app., infra, 27a, the decision in Green v. County School Bd., 391 U.S. 430, 439 (1968), generally is looked to for the "six pertinent areas [to] examine in deciding whether a school system has met its burden of abolishing the former dual system." App., infra, 29a.7
With respect to the "primary" ·Green factor, school assignment, the district court found-and the respondents conceded-that "the closing of the black schools in 1969 \ did, for a time, result in the desegregation of the schools of neKalb County.'' App., infra, 33a; see id. at 35a (Respondents "concede that th[e] action" of closing de jure blac\ schools and the implementation of a neighbor;. hood school plan "effectively desegregated the ness for a period of time"). Respondents also conceded that the subsequent "resegregation" of many ness schools was uthe result of demographic shifts" in the population of the county. Id. at 34a.8 The. district court concluded
modate educational needs" while respondents' proposed alternatives would "increase segregation." Pitts v. Freeman, No. 11946, Mem. Opinion (10/31/85), at 19. Accordingly, the court denied respondents' motion to enjoin implementation of the plan. Id.
7 "These areas include: [1] student assignment, [2] faculty [3] staff, [4] transportation, [5] extracurricular activities, and [6] facilities." App., infra, 29a. At the r~uest of the parties, th~ court also considered "quality of education." Id.
s "Between 1975 and 1980, approximately 64,000 black citizens moved into southern Dekalb County, most moving from the City of Atlanta." App., infra, 38a. At the same time, approximately 37,000 white residents moved from southern DeKalb County. Id. "As a result of th~~~ __demographic shifts, the population of the northern half of DeKaib County is now predominately white and the southern

7
that petitioners' conduct in uo way contributed to the resegregation of the schools. ld. at 45a.
The district court then reviewed the steps taken by
the ness in response to the trend towards "resegrega-
tion" caused by demographic changes in the county (app., infra, 39a-41a) and the conflicting expert testimony on the q~estion whether the petitione:t~s had done everything they reasonably could to promote desegregation in the schools. App., infra, 41a-45a. Based on "the evidence presented at the hearing" and its conclusion that the petitioners' experts were more "reliable," the court found
that "the ness has done everything that was reasonable
under the circumstances to achieve maximum practical desegregation in DeKalb County." App., infra, 44a.9
In sum, with respect to student assignment, the district court concluded:
The DCSS has become a system in which the characteristics of the 1954 dual system have been eradicated, or if they do exist, are not the result of past or present intentional segregative conduct by defendants or their predecessors.
half of DeKalb County is predominately black." Id. Black enrollment in the school system also increased dramatically ; for example,
between 1976 and 1986, ness experienced an enrollment decline of
16% at the high school level while the number of black students rose by 119%. App., infra, 38a-39a. These dramatic "demographic shifts have ... had an immense effect on the racial compositions of the DeKalb County Schools., Id.
9 Although petitioners had not "implement[ed] aU programs'' to combat the segregation caused by shifting residential patterns that were belatedly identified by respondents at the hearing on uni.tary
status, the district court rejected the proposition that the ness
"neglected its constitutional duty to eradicate the vestiges of the former dual system." App., infra, 46a. Indeed, the court found:
the segregation that occurred in DeKalb County would have taken place at approximately the same speed whether or not [petitiom:~~rs] had implemented the desegregative tools described by [respondents]. I d.

8
App., infra, 47a. Thus, the "defendants have fulfilled their constitutional obligations in this area." App., infra, 48a.
With regard to the other Green factors, the district court also found that the "DCSS is a unitary system with regard to the areas of student assignments, transportation, physical facilities, and extra-curricular activities." App., infra, 71a. However, the court found that the percentages of minority faculty and staff in certain individual schools were out of balance with system-wide percentages of minority faculty and staff. App., infra, 48a-60a. Accordingly, the court ordered the DCSS to develop a plan to reassign faculty until "the school staffs (faculty and administrators) of all schools vary from the system-wide minority staff average by no more than 15o/o . . . ." App., infr·a, 58a. "This plan should also equalize the number of teachers with advanced degrees and more experienced teachers among the types of schools. f' App., infra, 71a.10 Thus, the district court de-
nied the petitioners' motion to dismiss the ease in its
entirety, holding that petitioners would have to "comply" with the court's specific requirements concerning faculty, staff and pe:r pupil expenditures before the court would finally deelare that the school system had achieved full
l
1o With regard to the district court's requirement that petitioners bear the burden of proving that "all students in the DCSS are receiving a quality education" (app., infra, 60a)-a non-Green fac-
tor-the court praised the "innovative" successes of the ness but
expressed "great concern" over the "differential" in per-pupil expenditures in various schools. The court cited evidence that in "type I" schools (which had been majority white over the last decade), expenditut:,es per pupil were $2,833. In "type II" schools (which have undergone a transition from majority white to majority black over the last decade), expenditures per pupil were $2,540. In "type III'' schools (which had been majority black over the last decade), expenditures per pupil were $2,492. App., infra, 65a, 70a. Thus, in
respqnse to this evidence, the court ordered the ness "to attempt
to equalize per pupil expenditures among the types of schools during the 1988-89 school year." App., infra, 72a.

9
"Jnitary status with respect to all of the Green factors. Id. at 72a.
3. The court of appeals reversed. The Eleventh Circuit first held that the trial court had erred in determining the DCSS's unitary status "incrementally" by considering each Green factor separately. According to the court,
a school system does not achieve unitary status until it [simultaneously] maintains at least three years of racial equality in six categories: student assignment, faculty, staff, transportation, extracurricular activities, and facilities.
App., infra, 24a.
In so holding, the court of appeals specifically ''reject[ed] the First Circuit's ruling [in Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987)] which permits school systems to achieve unitary status incrementally" (app., infra, 15a), reasoning simply that "[a] school system achieves unitary status or it does not." Id. at 16a. Thus, under the Eleventh Circuit's approach, the lower court's findings of unitary status in the areas of transportation, extracurricular activities and facilities would remain open to reexamination. App., infra, 17a n.lO.
With respect to the district court's holding on student assignment, the Eleventh Circuit did not reverse, as clearly e~roneous, the district court's finding that the school system had in no way contributed to the "resegregation" of the schools. App., infra, 18a. Instead, the court of appeals held that, as a matter of law, DCSS retained responsibility for any resegregation in student assignment (due to demographic shifts in the county) until unitariness had been achieved in all categories of the school system:
[A] school system that has not achieved unitary status must take affirmative steps to gain and main-

10
tain a desegregated student population. The DCSS may not shirk its constitutional duties by pointing . to demographic shifts occurring prior to unitary status.
App., infra, 19a.
The court of ~.ppeals specifically rejected the argument that a federal court could not "hold [a school system] responsible for segregation not 'caused' by its dual system." ld. According to the Eleventh Circuit, the Board's
original success 'in desegregating the ness (and the sub-
sequent "cause" of any trend towards resegregation 1 should not have been considered by the district court:
The fact that the DCSS achieved :racial parity in the area of student assignment ... does not demonstrate that it fulfilled its duties to achieve maximum possible desegregation and to avoid the reestablishment of a dual system.
App., infra, 20a. Because the "affirmative duty" created by the original violation remained in force, the court "reject [ed] the district court's refusal to require the DCSS to eradicate segregation caused by demographic changes." App., infra, 20a.11
In conclusion, the court of appeals called upon the "district court [to] increase its involvement in this case ...." App., infra, 22a. It warned that
[t]o comply with our mandate, the DCSS's actions "may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some." The DCSS must consider pairing
n The court of appeals also chastised petitioners for basing their
claim of unitary status on a showing of "racial parity," i.e., racial
balance in student assignments : Just as the [respondents] cannot base a claim of segregation on any particular degree d raciii! balance, the DCSS cannot support a claim of desegregation with racial percentages.
App., infra, 21a n.13.

11
and clustering of schools, drastic gerrymandering of school zones, and grade reorganization. The DCSS and the district court must consider busing-regard• less of whether the [respondents] support such a proposal.
App., infra, 28a (citations omitted). Thus, the court of appeals "order[ed] the district court to require the DCSS to prepare and file a plan in accordance with [its] opinion in the shortest reasonable time." App., infra, 24a.12
REASONS FOR GRANTING THE PETITION
The Eleventh Circuit has decided two issues of fundamental and recurring importance concerning the scope and limits of federal court authority to achieve desegregation of the public schools. First, the court's holding that "unitary status" is achieved: with respect to any Green factor only when all aspects of a school system are maintained in some undefined level of racial balance for a predetermined period of time gives rise to an acknowledged conflict with the decision of the First Circuit in Morgan v. Nucci, 831 F.2d 813 (1st Cb.·. 1987l. Such a holding also undermines the authority of Pasa-
dena City Bd. of Edttc. v. Spangler, 427 U.S. 424, 436
(1976) , in which this Court held that a school board's failure to comply with a desegregation plan with respect to faculty hiring and promotion "did not undercut" the achievement of unitary status in student assignment.
Second, the Eleventh Circuit's holding that petitioners "must take affirmative steps to gain and maintain a desegregated student population"-despite the fully supported finding by the district court that the "resegregation" resulted solely from demographic shifts completely
~ Petitioners do not seek review of the adverse lower court rulings regarding teacher assignments and resource allocation. Instead, in reports to the district court dated September 29, 1989 and Augu~t 3, 1989, the DCSS ha's shown what it believes to be full compliance with the district court's outstanding orders in these areas.

12
beyond petitioners' control--conflicts with this Court's decision in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 31 (1971). Swann spedfically noted th~t school boards have no obligation to "make year-by-year i adjustments of the racial composition of student bodies once the affirmative duty tc desegregate has been accomplished and racial segreg·ation throug!l official action eliminated from the system." The holding of the court of appeals undermines the basic remedi~l principle that while the Constitution requires the dismantling of dual school systems, it does not mandate racial balance in the schools. Milliken v. Bradley, · ("M·llliken I''),. 418 U.S. 717, 740-741 (1974). By significantly expanding federal authority to order state and lo<"al officials to remedy de facto segregation, the holding also undermines the role of federalism as a significant li!nitation upon a federal courfs equitable authority.
1. It is wdl-el::ILablished that the constitutional violation in a "dual" school system may be found to permeate "every facet of school operations," including (1) student assignment, (2) faculty, (3) staff, (4) transportation, (5) extracurricular activities and (6) facilities. See
Green v. County School Bd., 391 U.S. 430, 435 (1968).
Accordingly, a federal court's responsibility in remedying a violation and bringing a school system into "unitary" status also must focus on each of these distinct factors. See, e.g., Milliken v. Bradley, (Milliken 11) 433 U.S. 267,
282-83 (1977); Swann v. Charlotte-Mecklenburg Bd.
of Educ., 402 U.S. 1, 18-19 (1971); United States v. Montgomery County Bd. of Educ., 395 U.S. 225, 23132 (1969) . The important question presented here is whether, in measuring the success of a remedy, the court properly may consider the attainment of unitary status "incrementally," i.e., with resptoct to each discrete aspect of the school system. The Eleventh Circuit now ha.q flatly rejected an incremental approach, holding that a school district may be deemed "unitary" only if it demonstrates "racial equality" in all six Green factors at the same

13
time for a period of at least three years. App., infra, 24a.
In so holding, the Eleve4lth Circuit expressly "reject[ed] the First Circuit's ruling [in Morgan v. Nucci,. 831 F.2d 313 (1st Cir. 1987)] which permits school systems to a·l!hieve unitary status incrementally." App., infra, 15a.13 Morgan involved an ~ppeal from several district r.:ourt remedial orders, including an order which
required the Boston School Board to "maintai·n specific
racial mixe.'3 in the city's schools, much like the balances they ha[d] been requirerl to achieve during the 12 years in which the district .court actively controlled the desegregation process." 831 F.2d at 317. The defendants in .tlforgan-like petitioners-objected to that order on the ground that, in the area of student assignments, Bos-· ton schools had achieved unitary status years before the order was entered. Id. ("pupil assignments were as much in conformity to the court's desegregation plan as could ever practically be expected") . Although the First Circuit agreed that unitary status had been achieved with respect to pupil assignments, it also noted that overall " unitariness' (i.e., complete de~gregation) in all aspects of the Boston schools has not yet been achieved.'' Id. at 318.
Thus, the court confronted the "threshold question" of whether "the failure of the :Boston system to have reached unitariness in areas othe!" than student assignments (such as in faculty hiring) provides justification for the district court to continue to impose its specific student assignments plan." ld. According to the First Circuit,
[u] nder the Supreme Court's decision in [Spangler, 427 U.S. 424 (1976) ], we believe the answer to this question is clearly "no."
ta The First Circuit's approach gives recognition to th~ fact that unitariness is "less a quantifiable 'moment' in the history of a remedial plan than it is the general state of successbl desegregation." Morgan, 831 F.2d at 321.

14
Id. Thus, the First Circuit concluded that its "primary inquiry" was not {as the court below held) the "overall" success of the plan but rather "whether unitarine9s has been reached in the· area of student assign~ts itself."
ld. (emphasis in the original); see United States v. Overton, 834 F.2d 1171, 1177 (5th Cir. 1987) (expressly agreeing with Morgan analysis) ; Keyes v. School Dist.
No. 1, No. 85-2814, 1990 Westlaw 5661 (10th Cir. Jan. 31, 1990) (same).
In reaching this decision, the First Circuit placed heavy reliance on this Court's decision in Pasader,a City
Bd. of Educ. v. Spangler, 427 U.S. 424 (1976). In Spang·
ler-as in the decision below and in Morgan-initial implementation of a desegregation plan had effectively remedied the racial imbalance in student assignments. 427 U.S. at 435 ("no one contests that [the plan's] implementat~on did 'achieve a system of determining admission to the public schools on a nonracial basis' "). Nevertheless, the district court had imposed an obligation on defendants to continue race-based student assignments to ensure that there would be no school in the district "with a majority of any minority students." Id. at 429.
In reversing that order, this Court recognized that "[i] t may well be that [defendants] have not yet totally achieved the [entirely] unitary system contemplated by [Swann]." I d. at 436. ''There has been, for example, dispute as to [defendants'] compliance with those portions of the plan specifying procedures for hiring and promoting teachers and administrators." ld. Nevertheless, the Court stated that the lack of unitary status as to some Green factors "does not undercut the force of the principle underlying ... Swann." 427 U.S. at 436 (quoting Swann, 402 U.S. at 31-32 (court's equitable authority ended when racial discrimination through official action had been eliminated) ) .
This Court specifically noted the argument of counsel for the original plaintiffs in Spangler who insisted that

15
the District Court's perpetual 'no majority of any minority' requirement was valid and consistent with Swann, at least until the school system achieved 'unitary' status in all other respects such as the hiring and promoting of teachers and administrators.
427 U.S. at 488 n.5. Although the Court concluded that those "arguments [we] re not properly before" the Court, because the "case is moot with regard to these plaintiffs," the Court nevertheless observed that the argument had "little substance." Id.1'
Thus, the Eleventh Circuit's holding with respect to "incremental unitariness" directly confticti:; and is inconsistent with the decision of another court of appeals and with the most directly applicable decisions of this Court. Moreover, the decision below unjustifiably promotes the "interminable pendency of school desegregation litigation . . . [which] is precisely what was condemned in
Pasadena." Board of Educ. of Valdosta, Georgia v.
United States, 439 U.S. 1007 (1978) (Rehnquist, J., dissenting :from denial of certiorari). Indeed, the Elevu enth Circuit's pronouncement of a new standard of "unitariness" comes more than 20 years after implementation of the remedial plan which "result [ed] in the d£~~gTega­ tion of the schools of DeKalb County." See app., infra, 33a; App., infra, 35a.
.t• In concluding that Spangler "does not support an incre;.nental approach to school desegregation cases," app., infra, 16a, the cou~ below limited Spangler to its facts, stating that "[i]n Spangler the Court simply refused to approve the [school system's] rigid requirement that no minority comprise a majority of any school population." \ Jd. The coUit below also pointed out that a student law review note had ucriticiz[ed] [the] Morgan court fozo 'wrongly cit· ing [Spangler] for [the} proposition that a district court may confer unitary status on pupil assignments even if other facets of the school system retain discriminatory vestiges." App., infra, 16a-17a (citing Note, ElimiMting the Continuing Efject8 of the Violation: Compensatory Educatio'n. a.s a Remedy for Unlawful School Segregation, 97 Yale L.J. 1173, 1191 n.104 (1988) ).

16
To be sure, a school board operating an unconstitutionally segregated system has an affirmative obligation to remedy all vestiges of past discrimination. But that principle does not require the concomitf!.nt ruie that a school board must bring all facets of its school system into ba.larfce simultaneously before any amount of judicial supervision can b~ eliminated. The rUle allowing incremental unitariness not only recognizes the practical difficulties of desegregating a large school system, but also respects the "vital national tradition" of local school board autonomy by returning control to the board as quickly as circumstances justify. See Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 410 (1977). In sum, the question .of the proper steps to take in deciding whether to terminate a federal court's supervision of local school decisionmaking is a matter of conflicting opinion among the courts of appeals and of tremendous practical importance to school boards.
2. It is a long-settled principle that, in formulating a remedy in a school desegregation case, "the nature of the violation determines the scope of the remedy." Swann, 402 U.S. at 16; see Milliken II, 433 U.S. at 280 ("the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation"); Milliken v. Bradley ("Milliken I"), 418 U.S. 717 (1974). "[F] ederal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation." Milliken II, 433 U.S. at 282; see also Spangler, 427 U.S. 424. These "limits" on federal court authority "are in part tied to the necessity of establishing that school authorities have in some manner caused unconstitutional segregation." Spangler, 427 U.S. at 434 (emphasis added); see Dayton, 433 U.S. at 420 (desegregation remedy must focus on the "incremental segregative effect" of specific constitutional violations, i.e., the

17
extent of segregation caused hy the violations) ; see Milliken I, 418 U.S. at 746; Mili-ilcen II, 433 U.S. at 280.
These same principles--that derive from core notions of federalism-should apply in determining whether a remedy has been successful in eliminating the effects of the intentionally segregative conduct, thereby freeing a school district from federal court supervision in areas in which the remedy has been successful. Although " [t] his
be- Court has not considered seriously the relationship
tween the resegregation problem and desegregation de-
crees," Estes v. Metropolitan Branches of the Dallas
NAACP, 444 U.S. 437, 448 (1980) (Powell, J., dissenting) , at the very least, Spangler stands for the proposition that "causation" remains a crucial requirement in determining whether a local school board is responsible for "resegregation" that occurs after successful implementation of a remedial order.
In Spangler, this Court held that where a remedial order has "established a racially neutral sy~tem of student assignment," 427 U.S. at 434, the district court "exceeded its authority" in continuing to "require annual readjustment of attendance zones" to maintain racial balance in student assignment. ld. at 435. The Court emphasized that the order imposed by the district court exceeded its authority because there was no causal link between "a constitutional violation" and the "judicially order[ed] assignment of students on a racial basis." Id. ~at 434. The Court quoted from Swann:
Neither school authorities nor district courts are constitutionally :..·equired to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system.
Spangler, 427 U.S. at 436 (quoting Swann, 402 U.S. at 32) . Because th~ district court in Spangler-like the

18
district court in this case 15-already had "implemented a racially 11eutral attendance pattern in order to remedy" the constitutional violation that had been found, the district eourt "had fully performed its function" (id. at 437) and its responsibilities for that portion of the case were discharged. Id.
In holding that "a school system that has not achieved unitary status must take affirmative steps to gain and maintai.n a desegregated student population" (app., infra, 19a), the decision below is in conflict with this Court's decision in Spangler. More broadly, in rejecting the proposition that the federal courts could not "hold [the DCSS] responsible for segregation not 'caused' by its dual system" (app., infra, 19a), the Eleventh Circuit's decision has read the "causation" requirement of Swann, Milliken and Spangler out of the remedial stage of school desegregation litigation, replacing it with a form of strict liability.16
The decision below also is in conflict with the decisions of those courts of appeals that recognize that implementation of an effective desegregation decree shifts the burden to the plaintiffs to prove that any segregation that subsequently results was caused by intentionally
111 In the decision below, as in Spangler, all parties concede "[t]he fact that the DCSS achieved racial parity in the area of student assignment" at the time that it closed t1 e de jur.e black schools and implemented a strict neighborhood attendance policy. App., infra, 20a.
16 According to the Eleventh Circuit, the Board's original success in desegregating the DCSS (and the subsequent "cause" of any trend towards resegregation) were simply irrelevant to the legal inquiry that should have been undertaken by the district court:
The fact that the DCSS achieved racial parity in the area of student assignment . . . does not demonstrate that it fulfilled its duties to achieve maximum possible desegregation and to avoid the reestablishment of a dua] system.
App., infra, 20a.

19
segregative conduct on the part of the school board. As the Fifth Circuit has noted,
continuing limits imposer" as a remedy after the wrong is righted effecti ely changes the constitutional m.easure of the wrong itself; it transposes the dictates of the remedy for the dictates of the \constitution and, of course, they are not interchangeable.
Overton, 834 F.2d at 1176.17 The court below, in ordering the school board to remedy the lack of racial balance caused by demographic changes, has done exactly what the Fifth Circuit warned against: it has substituted racial balance rather than the "undoing" of unlawful segregation as the baseline of the remedial order.18
Despite the Eleventh Circuit's understandable desire to "protect" the goal of an integrated student body,
accommodation of federal superintendence and federalism will not tolerate the idea that although the wrong is righted, the magnitude of the past wrong
lT The Fifth Circuit stated that the desire to press for remedies beyond the segregation caused by the constitutional violation "rests upon a fear that the fourteenth amendment, proscribing as it does only purposeful discrimination, inadequately protects desegregation gains ...." Overton, 834 F.2d at 1176. The Eleventh Circuit's insistence that the school board achieve "maximum possible desegregation" by "eradicat[ing] segregation caused by demographic changes, (app., infra, 20a) reflects precisely such a fear.
18 The Eleventh Circuit's rejection of any inquiry into the causal relationship between current racial inbalance and the prior de jure segregation also is in conflict with the Tenth Circuit's unitariness standard. See Brown v. Board of Educ., No. 87-1668, slip op. at 22 (lOth Cir. 1989) (in determining !:_lnitary status, the "school district must show that no causal connection exists between past and present segregation ...."); id. at 26A ("the school board ... bears the burden of proving that current racial disparities in the school system are not the result of the prior segregated school system"). Of eourse, the district court in this case found that the DCSS has satisfied precisely that burden of proof.

20
nonetheless justifies perpetuation of a federal order limiting the ambit of a school district's selfgoverance.
Overton, 834 F.2d at 1177. The standard adopted by the court below simply fails to recognize that "[i] t is state
government that Lthe court was] asked to enjoin" and
that, "having· righted the wrong, the limits [the court should] impose on the state can be drawn no more tightly than the limits of the Constitution." ld.
This Court has not directly addressed the question of the standard to be applied in determining whether a former "dual system" has achieved unitary status. Nevertheless, the decisions of this Court inrlicate that school
authorities hav-e -to satisfy the court that their rcurrent1
racial composition is not the result of present or past discriminatory action on their :part." Swann, 402 U.S. at 26; see Keyes v. School Dist. No. 1, 413 U.S. 189, 211 n.17 (1973) (school authorities' burden "to show that current segregation is in no way the result of those past segregative actions"). Where, as here, this burden is met, school authorities have no further "duty" to remedy a lack of racial balance due to demographic factors. See Swann, 402 U.S. at 28 ("[a]bsent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis") . In sum, the decision below is contrary to the basic principles of desegregation remedies set forth in the decisions of this Court and therefore warrants this Court's review.
At bottom, the rule imposed by the Eleventh Circuit necessarily will lead to unfortunate diversions of energy and scarce resources by numerous school boards. Instead of being able to concentrate their remedial efforts in those areas where vestiges of the dual school system remain, school systems are forced to undertake a potentially never-ending effort to obtain a "perfect" racially-balanced solution-a solution that "may be unattainable in the

21
context of the demographic, geographic, a~~ sociological complexities of modern urban communities." Estes, 444 U.S. at 448 (Powell, J., dissenting). :Ueeause of the large number of school districts, especia,lly in the Eleventh Circuit, that remain under f~erai ,court supervision,18 it is vital that this Court cor..sider whether a school system "in which the characteristics of [a] dual system have been eradicated" (app., infra, 47a) nevertheless can be ordered to undertake potentially extrao~dina:ry reme-dial actions in order to ensure a better racial balance in the schools.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,

GARYM.SAMS

REX E. LEE•

CHARLES L. WEATHERLY

CARTER G. PHILLIPS

J. STANLEY HAWKINS

MARK D. HOPSON

WEEKES & CANDLER

SIDLEY & AUSTIN

One Decatur Town Center

1722 Eye Street, N.W.

Suite300

Washington,D.C.20006

Decatur, Georgia 30031

(202) 429--4000

(~04) 378-4300

Counsel/or Petitioners

Robert R. Freeman, et al.

February 12,1990

• Counsel of Record

1e According to the most recent figures available, 353 school districts nationwide are currently operating under court-ordered desegregation plans. Nearly one-third of those (105) are located in the Eleventh Circuit. Sizeable though these numbers are, they understate the magnitude of the impact of the decision below because they include only those c.-ases in which the federal gc>vemm~nt has participated. Consequently, they do not -include the many de· segregation actions, such as this one, which involve only private plaintiffs. See U.S. Department of Justice, Educational Opportunity
Litigation Section, Cas.e Load List (May 1988).

APPENDICES

la
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS FOR ~HE ELEVENTH CIRCUIT

No. 88-8687

WILLIE EUGENE PITTS, a minor by his mother A.nd next

friend, MRS. ANNA MAE PITTS, VICTOR MARTIN; a

minor, by his father and next friend ROBERT L. MAR-

TIN; KELVIN, FELICIA, .ALFRED, 0RMA, and ALFkEDIA

HENDERSON, mino_rs, by their moijleJ~ and neA:t friend,

REBECCA HENDERSON, PATRICIA JOYCE REEVES, a minor,

by her mother and next friend, MRS. RosA LEE REEVES;

ANTHONY REED and CECILIA SEARCY, minors, by their

mother and next friend, MRS. JUANITA SEARCY; NED

and BECKY STONE, minors, by their father and next

friend, ALFRED E. STONE, JR.; JOY, BRIDGETT and

SANDRA BECKER, minors, by their father and next

friend, LoUIS E. BECKER; MONICA ROCKER, a minor,

by her father and next friend, ARTHUR "RocK"

ROCKER; JOHN JOHNSON and DEVETT SMITH, minors,

by their mother and 'next friend, Ms. EUNICE A.

SMITH; FRANKIE PRATHER, a minor, by guardian and

next friend, CYNTHIA ScoTT, and her father and next

friend, MAJOR SCOTT; PRINCESS MILLS, a minor, by

her father and next friend, ROOE~ MILLS; MARK AN-

THONY WHARTON, a minor, by his mother and next

friend DoRis PATILLAR; and all others similarly situ-

uated,

Plaintiffs-Appellflnt8,

Cross-Appellees,

ANN T. JOHNSON, Intervening Plaintiff,

versus
ROBERT FREEMAN, Superintendent~ LYMAN HOWARD, NORMA TRAVIS, and PHIL McGREGOR, DeKalb County
Board of Education Members, DejendolntB-AppeUees, Cross-Appellants.

2a
No. 88-8775
WILLIE EUGENE PITTS, et al.,
Plaintiffs-Appellants, Cross-Appellees,
versus ROBER'i' R. FREEMAN, et al.,
Defendants-Appellees, Cross-Appellants.
Appeals from the United States District Court for the Northern District of Georgia
(October 11, 1989)
Before FAY and HATCHETtr, Circuit Judges, and ALLGOOD*, Senior District Judge.
HATCHETT, Circuit Judge:
In 1985, in this case, we stated: The district court ['s] ... characterization of the
DeKalb County School System as unitary was error. As the defendants suggest, it is possible that the district court did not intend its use of the word 'unitary' to be equated with the· unitary status that requires dismissal of the action. The court may have been stating merely that a constitutionally acceptable desegregation plan was implemented in 1969 thus making the school syatem unitary in some respeets. Yet the district court committed error by applying the wrong standards of proof when it proceeded to require the plaintiffs to prove discriminatory intent, a requirement that ordinarily would be
*Honorable Clcrence W. Allgood, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.

Sa
appropriate only after a finding of full unitary status.
Until the DeKalb County School System achieves unitary status, it has an affirmative duty to eliminate the effects of its prior unconstitutional conduct. The United States Supreme Court has held that a previously segregated school system is under an '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.'
Pitts v. Freeman, 755 F.2d 1423, 1426 (11th Cir. 1985) ("Pitts I") (quoting Columbus Board of Education v. Penick, 448 U.S. 449, 459 (1979) and Green v. County School Board, 391 U.S. 430, 437-38 (1968)). Despite our admonishments, the district court ruled that the DeKalb County School System ("DCSS") is under no affirmative duty to take steps to desegregate an acknowledged segregated system in the area of student assignment because the DCSS closed all of its de jure black schools in 1969. Although we affirm the district court's
ultimate conclusion that the ness has not yet achieved
unitary status, we reverse the district court's ruling that
the ness has no furt.her duties in the area of student
assignment. I. FACTS
A. Racial Composition of the DeKalb County School System
1. Students
The DeKalb County School System ("DCSS") serves 79,991 students in more than 90 schools.1 Black students
1 The district court and the parties agreed to use September, 1986, as a cut-off date for statistical information. Statistics concerning white students include non-black minority students. Nonblack minority students constitute less than 1-percent of the·DCSS student population.

4a
constitute 47-percent of the DCSS population. Despite the system's racial balance, 50-percent of the black students attend schools with black populations of more than 90-percent. Similarly, 27-percent of the n\JSS's white students attend schools with white populations of more than 90-percent.2 The DCSS operates a segregated school system.
The ness maintains several programs to combat segregation. First, the DCSS maintains a Minority-to-Majority program ("M-to-M" program) that permits students to transfer from schools in which their raee is a majority to schools in which their race is a minority. Approximately 4,500 students, almost all black, participate in the M-to-M program. Second, the DCSS maintains a magnet school program that includes a performing arts program, two science programs, and a foreign language program. The DCSS plans to add at le~st five more programs, including two occupational education centers. Third, the DCSS maintains a court-appointed biracial committee to review proposed boundary line changes, school openings and closings, and the M-to-M program.
2. Faculty and Staff
a. Administrators
Black persons constitute approximately SO-percent of DCSS elementary school administrators (principals, assistant principals, and lead teachers). Yet, black administrators constitute less than 10-percent of the administrators in majority white schools. Conversely, black administrators constitute 60-percent of ness administrators in schools with black populations of more than
2 In addition, 62-percent of the DCSS's black students attend 30 schools with black populations at least 20-percent higher than the system average. Fifty-nine percent of its white students attend 37 schools with white populations at least 20-percent higher than the average.

5a
81-percent. Additionally, the DCSS assigns 13 of 18 black elementary school principals to schools in which the black student population is more than 90-percent.
At the high school level, the DCSS employs 27-percent black administrators. The percentage of black administrators at each school rises according to the size of the black student population. In majority white high schools, black administrators constitute only 22-percent of the administrators. In high schools with black student populations between 41-percent and 80-percent, black administrators constitute 45·percent of the administrators. In high schools with black student populations of more than 81-percent, black administrators constitute more than 63percent of the administrators. In addition, the DCSS assigns 4 of 5 black high school principals to schools with black student populations of more than 95-percent.
b. Teachers
Black teachers constitute approximately 27-percent of DCSS faculty. Yet, 17 school faculties deviate by more than 10-percent from the system average.
The DCSS maintains a transfer program for experienced teachers. Teachers with more than 3 y~ars expe-rience at one school may request a transfer to a.nother school. During the 1986-87 schoo! year, 182 te~;~hers requested tran~feu;. The DCSS granted 83 requests. ri:he district court found that the transfer program deterred the DCSS from achieving racial equality among its faculty.
3. Educational Resources
a. Faculty Experience
The district court found that the DCSS assigns experienced teachers and teachers with graduate degrees in a racially imbalanced manner. The district court presented this fact by grouping DCSS schools into three categories: (1) Type I schools (majority white students during last ten years) ; (2) Typ," II schools (changed from

6a

majority white students to majority black students during last ten years); and (3) Type III sc:hools (majority
black students during the last ten years) . The following charts demonstrate the racial skew:

Average Number of Years Teaching

ELEMENTARY SCHOOLS
Type I (majority white) Type II (white to black) Type III (majority black)
HIGH SCHOOLS
Type I Type II Type III

Fall1984 9.55 6.45 6.24
7.99 6.83 5.34

Fall1985 10.22 6.90 5.46
8.74 7.14 5.68

Fall 1986 9.79 6.36 6.19
8.90 7.08 4.91

Percentage of Teachers with Graduate Degrees

Type I Type II Type III

ELEMENTARY SCHOOLS
75.76 61.84 62.63

HIGH SCHOOLS
1'6'.05 64,34 64.32

b. Per Pupil Expenditures
Using 1984-1985 school year figures, the district court
also found that the ness spends more money per white
student than it spends per Qlack student. The following chart demonstrates the racial imbalance:
Per Pupil Expenditures

Type I Type II Type HI

$2,833 $2,540 $2,492

B. Racial Composition of DeKalb County
Between 1950 and 1986, DeKalb County grew from 77,000 to 450,000 residents. This growth proceeded in a racially-skewed fashion. Black residents moved primarily to south DeKalb County and white residents moved primarily to north DeKalb County. For example, between 1970 and 1980, north DeKalb County's non-

7a
white population increased 102-percent to 15,365. South DeKalb County's non-white population, however, increased 661-percent to 87,-583. In addition, between 1975 and 1980, 37,000 white residents moved from south DeKalb County to neighboring counties.8
DeKalb County's demographic changes affected the DCSS. Between 1976-1986, the DCSS elementary school population declined 15-percent. During the same time, however, black elementary student enrollment increased 86-percent. At the high school level, DCSS enrollment declined 16-percent while black enrollment increased 119percent.
II. PROCEDURAL HISTORY
-
A. The DCSS Plior to 1969
Historically, the DCSS segregated its schools and programs according to law. In 1966, the DOSS replaced its dual system with a "freedom of choice" plan. Under the freedom of choice plan, a number of black students attended forme::-ly de jure white schools. A majority of black students, however, still attended de jure black schools.4
In 1968, the Supreme Court decided Green v. County School Board, 391 U.S. 430 (1968). The Court held: " 'Freedom of choice' is -not a sacred talisman . . . . [l]f it fails to undo segregation, other means must be used to achieve this end., Green, 391 U.S. at 440 (quoting Bowman v. County School Board, 382 F.2d 326, 333 (4th Cir. 1967) (Sobeloff, J., concurring)). Within two months, a class of black students ("the plaintiffs") filed
this action against the ness.
s When describing DeKalb County's overall population, the parties distinguished between "whites" and "non-whites." The parties included non-black minority individuals in the non-white category.
4 In 1968, the DCSS closed Bruce Stre~t High Sch()(Ji., one of two de jure black high schools.

Sa

B. History of this Litigation

On June 12, 1969, the district court entered an order

that abolished the fi·eedom of choice plan, enjoined the

ness- from discriminating on the basis of race, and

ness requirerl the

to eliminate the vestiges of its dual

ness ~ystem. Thr: COUl"t further ordered the

to close

all remaining de jure black schools and to establish a

neighborhood school attendance policy. The district court

ness retained jurisdiction to ensure that the

complied

with its order. The DeSS closed all de jure black schools.

The case remained inactive until 1975, when the plain-

ness tiffs complained that the

violated the 1969 plan.

In 1976, the court ordered the DeSS to modify its M-to-M

progt·am by providing students with free transportation

and to reassign faculty and staff matters to approximate

system-wide 1·adal pe1·centages. Additionally, the dis-

trict court created the bi-racial committee referred to

earlier in this opinion.

ness Bet';\een 1977 and 197~. the

filed three mo-

tions in the district com·t. seeking approval of several

plan modifications. In l!l77, the district court approved

a bounda1·y li11e change fo1· Flat Shoal:;; Elementary

School. In 197S, the district court refused to exclude

kincle1~::11'ten and =-pecia1 education programs from the

M-lo-1\I pl'Ogl·am. In 1979, the district \20urt refused to

modify the M-to-M program by 1·estricting black stu-

dent t1·ansfers to schools with black populations less than

the system average.

In 1983, the plaintiffs returned to the district court

contending. in part. that the DCSS improperly limited

:\1-to-l\I t1·ansfers tn p1'f'flominatelr white Lakeside High

School and that the neSS's proposed expansion of pre-

d:.,minantly white Redan High School would perpetuate

ness segregation. The district court O"dered the

to

accept additional black students in the M·to-M program

at Lake~·d<ie High. The cli~tl'ict court I'Uled, however, that

ness the

did not maintain a discriminatory "intent"

9a
in deciding to expand Redan High. The district court concluded that the DCSS achieved unitary status. The _plaintiffs appealed. In 1985, this court reversed and remanded the case. Pitts I, 755 F.2d 1423 (11th Cir. 1985). The Pitts I court first held that the district court improperly deciared that the DCSS achieved unitary status without notifying the plaintiffs and conducting a hearing. Pitts I, 775 F.2d at 1426 (citing United States v. Texas Education Agency, 647 F.2d 504, 509 (5th Cir.
Unit A 1981 L cert. denied, 454 U.S. 1143 (1982); Lee v.
Macon County Board of Education, 584 F.2d 78, 81 (5th Cir. 1978) ; Youngblood v. Board of Public Instruction, 448 F.2d 770, 771 (5th Cir. 1971)). The court then held that the district court erred by considering the neSS's ir.tent when it analyzed the Redan expansion. The court stated that the ness possessed -"an affirmative duty to solve the Redan High School overcrowding problem in such a way that it furthers desegregation and helps eliminate the effect-:; of the previous dual scho"Ol system." Pitts I, 755 F:2d at 1427.
On January 16, 1986, the ness filed a motion in the district court seeking final dismissal. In July, 1987, the district court conducted a three-week trial to determine whethe1· the ness had achieved unitary status. In October, 1987, the plaintiffs filed two motions for supplemental relief based, in part, on testimony adduced at
trial.
On June 30, 1988, the district court entered an order denying the neSS's motion for dismissal. The district court ruled that the ness would not achieve unitary status until it filed a report that presented a plan sufficient to meet the dictates of Singleton v. Jackson Municipal Separate Sclzool District, 419 F.2d 1211 (5th Cir. 1969 J ~in bane) (requil'ing racial equality in the assignment of teachers and principals!, 1·ev'd per curiam on other grounds, 396 U.S. 290, ce1·t. denied, 396 U.S. 1032

lOa
(1970)-.6 The district court ruled that the DCSS would comply with Singleton when all schools possessed minority staffs within 15-percent of the system average. The court also ordered the DCSS to equally distribute its experienced teachers and teachers with advanced degrees and to equalize expenditures among black and white students. The district court refused, however, to impose additional duties on the DCSS in the areas of -student assi~ment, transportation, and extracurricular activities. The court denied the plaintiffs' motion that asked
the court to require the ness to file a separate junior
high school plan.
On July 13, 1988, the plaintiffs filed a motion asking the district court to reconsider its decision not to impose additional duties on the DCSS in the area "f student assignment. The plaintiffs also asked the court to reconsider its decision not to require the DCSS to file a junior high school plan. On August 11, 1988, the district court denied the plaintiffs' reconsideration motion.
On September 9, 1988, the district court certified "any issue" of its June 30, 19_8_8 order for interlocutory appeal pursuant to 28 U.S.C.A. § 1292{b) (West Supp. 1989). Both parties appealed. On October 21, 1988, this court permitted the appeals to proceed.6
II In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (in bane), the Eleventh Circuit adopted all Fifth Circuit decisions rendered before October 1, 1981, as binding precedent.
6 The parties filed identical appeals, asserting that 28 U.S.C.A. § 1292 (a) (West Supp. 1989) provided an appeal by right. After this court permitted the section 1292 (b) appeals to proceed, the parties moved to consolidate the appeals. The court assigned Case No. 88-8775 to the section 1292 (b) appeals and No. 88-8687 to the section 1292 (a) appeals. Because we accepted jurisdiction pursuant to section 1292 (b), we need not determine whether the parties properly appealed pursuant to section 1292 (a).

lla
III. CONTENTIONS OF THE PARTIES
The plaintiffs contend that the district court erroneously dismissed the DCSS from court superviSion in the area of student assignment. The plaintiffs also-,,contend that the district court erred by concluding that the DCSS could satisfy Singleton while allowing minority faculties to deviate by 15-percent from the system average.
The DCSS contends that it will achieve unitary status when it complies with Singleton. The DCSS also contends that it satisfied its duties relating to student assignment when it complied with the district court's 1969 order and closed all de jure black schools. The DCSS takes the _position that it did not "cause" reseg;regation and that it possesses no du~y to take affirmative action to
desegregate. The ness further contends that the dis-
trict court erred by ruling that it failed to equally distribute educational resources.
IV. ISSUE
Whether the ness will achieve unitary status when it
complies with the district court's orders regarding faculty and staff assignment and resource distribution.
V. DISCUSSION
A. Standard of Review
We review the district court's specific remedial orders regarding faculty and staff assignment and resource distribution for an abuse of discretion. Lee v. Anniston City School System, 737 F.2d 952, 955 (11th Cir. 1984). "A declaration that a school has achieved unitary status is . . . subject to review under the clearly erroneous standard." Jacksonville Branch, NAACP v. Duval County School Board, No. 88-3803, slip op. 4282, 4289 n.8 (11th Cir. Sept. 15, 1989) ; United States v. Texas Educ. Agency, 647 F.2d 504, 506 (5th Cir. Unit A 1981), cert. denied, 454 U.S.1143 (1982).

12a
B. Achieving Unitary Status
In Brown v. Board of Education, 347 U.S. 483, 495 (1954) ("Brown I"), the Supreme Court pronounced "that in the field of public education the doctrine of 'separate but equal' has no place.... [S]uch segregation is a denial of the equal protection of the laws." One year later, the Supreme Court ruled that federal courts could assert equity jurisdiction to assure that school boards carried out the dictates of Brown I. Brown v. Board of Education, 349 U.S. 294, 300-01 (1955) ("Brown 11"). As the Court stated in Green v. County School Board,
391 u.s. 430, 437-38 ( 1968) :
Brown II was a call for the dismantling of wellentrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for successful resolution. School boards . . . [were] clearly charged with the affirmative duty to take whatever steps might be necessa1·y to convert to a unitary system in which racial discrimination would be eliminated root and branch.
District courts should not abdicate jurisdiction until a school board achieves "unitary status." Swann v. Charlotte-1Wecklenburg Board of Education, 402 U.S. 1, 31 (1971) ; Pitts I, 755 F.2d at 1426.
1. Defining Unitary Status
A school system achieves unitary status when it no longer discriminates between school children on the basis of race. Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1414 (11th Cir. 1985) ("Georgia NAACP"); Pitts I, 755 F.2d at 1426; Lee v. 11.facon County Board of Educa.tion, 584 F.2d 78, 81 (5th Cir. 1978). A school system "no longer discriminates between s~..,lool children on the basis of race" when it affirmatively eliminates all vestiges of its dual system. Columbus Board of Education v. Penick, 443

13a
U.S. 449, 458 (1979) (school board under "continuous constitutional obligation to disestablish its dual school system"); Swann, 402 U.S. at 15 ("the objective today r.emains to eliminate from the public schools all vestiges of state-imposed segregation"); Green, 391 U.S. at 43738 (school board charged with affirmative duty to eliminate racial discrimination "root and branch") . See Georgia NAACP, 775 F.2d at 1413 n.12 (school system achieves unitary status when it eliminates vestiges of prior discrimination and operates a non-segregated system for a period of several years) .7 The district court erred by concluding that "there is no binding precedent in this circuit which articulates a precise definition for "unitary status and by following the non-binding definition of unitary status in Brown v. Board of Education, 671 F.Supp. 1290 (D. Kan. 1987) ("Brown Ill"). Pitts v. Freem,an, No. 11946 at 3 (N.D. Ga. June 30, 1988).
2. Applying the Definition of Unitary Status
Appellate courts have provided district courts with little guidance regarding how to determine whether a school system has achieved unitary status. See Note, Eliminating the Continuing Effects of the Violation: Compensatory Education as a Remedy for Unlawful School Segregation, 97 Yale L.J. 1173, 1190 (1988) (no guidelines exist for determining when school systems achieve unitary status) ; Note, Allocating the Burden of Proof After a Finding of Unitariness in School Desegregation Litigation, 100 Harv. L.Rev. 653, 662 (1987) ("The Supreme Court has not, however, announced any set list of the conditions a district court judge must observe in a formerly dual school system before declaring that it is unitary.") . The district court considered six
., The Georgia, NAACP court set forth separate definitions for a "unitary school system" and for "unitary status!' We reject this labeling system. Instead, we use the word "unitar-y" only when referring to the status tha.t a. school board must achieve to be freed from district court jurisdiction.

14a
factors set forth in Green: student assignment, faculty, staff, transportation, extracurricular activities, and facilities.11 Green, 391 U.S. at 435. A review of these six factors constitutes the best approach for determining whether a school system has eliminated the vestiges of a dual system. Therefore, we hold that district courts should review the six Green factors to determine whether a school system has achieved unitary status. If the school system fulfills all six factors at the same time for several years, the court should declare that the school system has achieved unitary status. If the school system fails to fulfill all six factors at the same time for several years, the district court should retain jurisdiction.9
- Before applying the Green factors to the DCSS, we make three related conclusions.
First, the G1·fen factors are not entirely synonymous with the vestiges of past discrimination. State-imposed segregation affected society much more than any set of judicially-created factors can measure. As Chief Justice Warren stated in Brown I:
To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.
s The district court also considered a seventh factor: "quality of education." We conclude that the Green Court intended quality of education to be considered in conjunction with each of its six enumerated factors. See Grern, 319 U.S. at 435 (describing the six factors as comprising "every facet of school operations"). In this case, the district court should consider the distribution of educational resources in relation to the area in which the school system applies the resource.
& By holding that the system must fulfill the Green factors "for several years," we mean a period of not less than three years. See Youngblood v. Board of Public Instruction, 448 F.2d 770, 771 (5th Cir. 1971).

15a
Brown 1, 347 U.S. at 494. An analysis of the Green factors simply provides a method for determining whether a school system has eliminated all vestiges of past discrimination while, at the same time, providing district courts with a degree of certainty. AppliCPtion of the Green factors does not strip a district court of its responsibility and ability to consider unique cifcumstances in each school system. See Keyes v. School Dj8trict No. 1,_ 413 U.S. 189, 224 n.10 (1973) (Powell, J., concurring in part and dissenting in part) (cautioning courts to refrain from formulating "hard-and-fast rules" in school desegregation cases) . The Green factor8 approach is a means towards an end. By requiring its use, we simply recognize that district courts cannot consistently apply a standardless test.
Second, our ruling that school boards must comply with the six Green factors simultaneously does not expand federal court equity jurisdiction beyond the scope of a school board's constitutional violation. See Milliken 11. Bradley, 433 U.S. 267, 280-82 (1977) ("Milliken 11"). Sc,hool boards violated the Constitution by operating dual systems. To remedy this violation, they must eliminate all of the dual system's vestiges. Because these vestiges encompass more than the Green factors, a district court can order relief relating to any factor until a school system achieves unitary status. The factors operate, in part, as an indicator of more intangible vestiges. Our conclusion is fully consistent with the Supreme Court's statement that: "[t]he district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques . . . ." Davis v. Board of School Com·missioners, 402 U.S. 33, 37 (1970) (citing Swann, 402 U.S. at 2231).
Third, we reject the First Circuit's ruling which permits school systems to achieve unitary status inc:remen·

)
16a
tally. Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987). Cj. United States v. Overton, 834 F.2d 1171, 1176 n.17 (5th Cir. 1987) (citing Morgan when discussing a postunitary school system); Lee v. Macon County Board of Education, 681 F. Supp. 730, 738 (N.D. Ala. 1988) (praising M01·gan, but recognizing that it does not constitute Eleventh Circuit law). A school system achieves unitary status or it does not. We will not permit resegregation in a school system that has not eliminated all vestiges of a dual system. See Dayton Board of Education v. Brinkman, 443 U.S. 526, 538 (1979) (school boards possess afth·mative responsibility to see that pupil assignment, school construction, and abandonment practices do not reestablish the dual school system) ; Columbus Board of Education, 443 U.S. at 460 (district court must ensure that school board actions "do not serve to perpetuate or reestablish the dual school system") ; Swann, 402 U.S. at 21 (school systems may not perpetuate or reestablish dual system; "district courts should retain jurisdiction to assure that these responsibilities are carried out") .
1.,he DCSS asserts that Supreme Court authority permits it to achieve unitary status incrementally. Contrary to the DCSS's assertion, Pasadena City Board of Education v. Spattgler, 427 U.S. 424 (1976) does not support an incremental approach to school desegregation cases. In Sp:1ngler, the Court simply refused to approve the Pasadena School Board's rigid requirement that no minority comprise a majority of any school population. Spangler, 427 U.S. at 432 ("All that is now before us are the questions of whether the Dis_trict Court was correct in denying relief when petitioners in 1974 sought to modify the 'no majority' requirement as then interpreted by the District Court."). See Note, 97 Yale L.J. at 1191 n.104 (criticizing Morgan court for "wrongly citing [Spangler] for proposition that a district court may confer unitary status on pupil assignments even if

17a

other facets of the schqol system retain discriminatory

vestiges") .

·

C. Applying the Green Factors

1. Transportation, Extracurricular Activities, and Facilities
The district court concluded that the DCSS fulfilled its
constitutional duties in the areas of transportation, extracurricular activities, and facilities. Neither party appeals these rulings; therefore, those rulings are not before us.10
2. Faculty and Staff
The former Fifth Circuit held that "principals, teachers, teacher-aides and other staff who work directly with children at school shall be so assigned that in no case will the racial composition of a staff indicate that a school is intended for Negro students or white students." Singleton, 419 F.2d at 1217-18. School systems, therefore, maintain legal responsibility for the allocation of minority faculty and staff. School systems and district courts must focus on minority ratios in each school. Singleton, 419 F.2d at 1218. The district court concluded that the DCSS tailed to comply with Singleton. Specifi-
cally, the district court ruled that the DCSS would not satisfy Singleton until each school's minority staff ratio
varied from the system average by no more than 15percent. The court adopted this 15-percent guideline from its 1976 order.
Only the plaintiffs appeal the district court's Singleton ruling. The plaintiffs argue that the district court erred by permitting a 15-percent variance in each school. The plaintiffs cite two cases in which courts approved plans that permitted deviations of less than 10-percenl

to These matters may be considered the next time the district court considers whether the DCSS has achieved unitary status.

18a
See Tasby v. Estes, 517 F.2d 92 (5th Cir.), cert. den.iedr 423 U.S. 939 (1975) ; Smith v. Concordia Parish Sclwol Board, 445 F.2d 285 (5th Cir. 1971). The DCSS, however, argues that a 15-percent deviance rule does not
constitute error. The ness points to a non-binding case
in which a court approved a 15-percent deviance in some of a system's schools. See United States v. Texas Education Agency, 679 F.2d 1104 (5th Cir. 1982).
We hold that the district court's Singleton order did not constitute an abuse of discretion. Our holding does not establish 15-percent as the standard for all cases; we merely find no abuse of discretion on the facts of this case. Accordingly, we affirm the district court's decision
permitting the ness to comply with Singleton when each
school's minority staff varies from the system average by no more than 15-percent. We stress, however, that under this circuit's definition of unitary status, the DCSS must simultaneously comply with Singleton and the other Green factors for several years before it will achieve unitary status.
3. Student Assignment
In recent years, the ness student population has be-
come increasingly segregated. The district court, how-
ever, refused to hold the ness responsible for this seg-
regation because "no evidence [exists] that the school system's previous unconstitutional conduct may have contributed to this segregation." Pitts 1.1. Freeman, No. 11946 at 25.
·rhe plaintiffs argue that the ness never achieved a
constitutionally-sufficient level of desegregation. The plain-
tiffs argue that until the ness achieves unitary status,
it must affirmatively move toward the maximum p:t·acticallevel of desegregation. The plaintiffs also argue that
.demographic shifts Jo not excuse the neSS's resegrega-
t10n.\

19a
The DCSS argues that it fulfilled its duties in the area& of student assignment when it closed all de jure blaclt sehoo~s following the district court's 1969 order. The DCSS argues that the district court properly refused to find it responsible for segregation cnused by demographic changes.
We hold that a school system that has not achieved unitary status must take affirmative steps to gain and maintain a desegregated student population. The DCSS may not shirk its constitutional duties by pointing to demographic shifts occurring prior to unitary status.11 Accordingly, we reverse the district court's conclusion that the DCSS fulfilled its constitutional obligations in the area of student assignment.
a. Closing De Jure Black Schools
The DC'kS has a continuing constitutional duty to achieve the greatest possible degree of desegregation and to prevent re-segregation. Columbtu; Board of Education, 443 U.S. at 460 (school board cannot "perpetuate or reestablish the dual school system") ; Davis, 402 U.S. at 37 ("make every effort to achieve the greatest possible degree of actual desegregation"); Green, 391 U.S. at 440 ("continuing duty to take whatever action might be necessary") . The district court must continue to impose this duty on the DCSS until it removes all vestiges of the dual system.
The DCSS asserts that the district court could not hold it respon~ible for segregation not "caused" by its dual system. The DCSS cites Milliken II, 433 U.S. at 282 to support this assertion. We reject the DCSS's reading of Milliken II. The Milliken II Court did not require causation between each Green factor and a dual system. Rather, the Milliken II Court stated that "fed-
u Segregated housing patterns are not new to the South. Certainly, lower federal courts have b~n aware of housing patterns
since the 1954 Brown decision.

20a
eral-court decrees must directly address atid relate to .the constitutional violation itself. . . . [F] ederal""'"'urt decrees exceed appropriate limits if they are aimed at ~liminat­ ing a condition that does not violate the Constitution or that does not flow from such a violation ...." Milliken II, 433 U.S. at 281-82. As we stated earlier, the DCSS violated the Constitution by operating a dual system. Under Milliken II, federal court orders may address all vestiges of that system. Student segregation, prior to achieving unitary status, indicates that vestiges remain. Therefore, the DCSS must continue to work toward desegregation until it removes all vestiges. The fact that the DCSS achieved racial parity in the area of student assignment on the day it closed the de jure black schools does not demonstrate that it fulfilled its duties to achieve maximum possible desegregation and to avoid the reestablishment of a dual system.
b. Demographic Changes
We also reject the district court's refu::;al to require the DCSS to erad.icat~ segregation caused by demographic changes. As the former Fifth Circuit stated in Lee v. Macon County Board of Education, 616 F.2d 805, 810 (5th Cir. 1980) :
Not until all vestiges of the dual system are eradicated can demographic changes constitute legal cause for racial imbalance in the schools..•• Notwithstanding the school authorities' apparent good faith attempt to desegregate in 1970, the system has never -achieved unitary status.... Consequently, the school board in Tuscaloosa is still under an affirmative duty to dismantle the dual system, regardless of current housing patterns. (Citing Flax v. Potts, 464 F.2d 865, 868-69 (5th Cir.), cert. denied, 409 U.S. 1007 ( 1972 ) ) .
We rejected a similar "demographics" argument in Pitts I. In Pitts I, the DCSS planned to accommodate

21a
white population growth in the Redan High School area by building an additional facility. The district court accepted the DCSS's plan, finding that the DCSS simply1 planned to build a school where students liYed and that a discriminatory intent did not motivate the DCSS's actions. We noted the discriminatory effect of the proposed Redan. expansion and held that " [u] ntil the DeKalb County School System achieves unitary status, it has an affi~·mative duty to eliminate the effects of its prior unconstitutional conduct." Pitts I, 755 F.2d at 1426. We repeat what we said in Pitts I: The DCSS has not achieved unitary status; consequently, its affirmative duty remains in force.12
c. Racial Quotas Are Not ~equired
In concluding that the DCSS failed to fulfill its constitutional duties regarding student assignment, we recognize that the Constitution does not require "any particular degree of racial balance or mixing." Swann, 402 U.S. at 24. See Pr!illiken II, 433 U.S. at 280 n.14; Spangler, 427 U.S. at 434.13 Accordingly, we do not require
uSee Note, Unitary School Systems and Underlying Vestiges of State-Imposed Segregation, 87 Colum. L. Rev. 794, 808-09 (1987) (suggesting that residential segregation may itself be a vestig~ of a dual system and stating that "residential segregation as a vestige of unconstitutional school segregation may become the last barrier to widespread declarations of unita.riness"). See also Swann, 402 U.S. at 20-21 ("People gravitate toward school facilities just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on the composition of inner-city neighborhoods.").
13 This principle further undercuts the DCSS's argument that it fulfilled its duty to desegregate when it closed the de jure black schools. Just as the plaintiffs cannot base a claim of segregation on any particular degree of racial balance, the DCSS cannot support a claim of desegregation with racial percentages. "Substance, not semantics, must govern" school desegregation cases. S~qann, 402 U.S. at 27.

22a
the DCSS to impose racial quotas in its schools. We do require, however, that the DCSS move toward the maximum possible level of desegregation. In dh·ect conflict with Supreme Court authority and orders of this court,
the ness claims no responsibility for student segregation
based on its 1969 action of closing de jure black schools. The district court must increase its involvement in this case to ensure complianct~ with our order and the Con-
stitution. The district court should require the ness to
submit timely plans, establish firm deadlines, and require progress reports.
d. The Junior High School Plan
The district court denied the plaintiffs' motion to com-
pel the ness to file a junior high school plan because it
concluded that the DC'SS achieved maximum practical desegi·egation befo1·e the 1986-87 school year. Because we
reverse the district court's conclusion that the ness
acbien>d maximum practical rlesegregation, \Ye ot·del· the district com't tn l.'econ~ider the plaintiffs' motion.
D. Distribution of Educational Resom·ces
The dist1·ict court ordered the DC'SS to assign experiPnced tt=>achers and teachers with advanced degrees equall} between primarily black and primarily white schools. The distl'ict court also orderecl the DCSS to equalize per pupii expenditures. The DCSS appeals this portion of the district com·t order~ a1·guing that the district court impropedy assigned it the burden of proof. 14
To the extent that the dLstrict court J'equit·ed the ness
to allncate eflucational resources in a race-neutral fashion,
H The nc~~·s burden of proof argument rests on the notion that they did not "('ausc" the resoun:e inetjuity. We reject<?d this argument wht>n we di;:;cussed student assignment. The DCSS "cau::'ed" all n'st iJ<es of the dual system by oper:1ting- that systt:m.
t•nw the ness achiews unitary status it mu:::t continue to work
toward elimin:~:ing rrli H':3tige:s of the dual -"YStem

23a
we affirm. We note, however, that the district court based its conclusion on an improper premise: that the DCSS may properly operate a segregated school system prior to reaching unitary status.15 Under our holding, the DCSS must desegregate its students. When the system desegregates, most schools will no longer be racially identifiable and the DCSS will be unable to distribute resources in a racially imbalanced fashion.
E. Disposition
For many years, the DCSS planned, contributed to, and directly caused racial segregation in its schools. By operating a dual system, the DCSS affected the "hearts and minds" of its students and may have contributed to the housing patterns that today "cause" school segregation. Swann, 402 U.S. at 20-21; Brown I, 347 U.S. at 494. The law requires that the DCSS achieve unitary status. The DCSS, however. 1·efuses t(' take affirmative action and seeks to justify its inaction with frivoious and longrejected arguments.
To comply with om· mandate, the DCSS's actions "may be administ1·atively awkward, inconvenient, a.nd even bizarre in some situations and may impose burdens on some." Swann, 402 U.S. at 28. The DCSS must consider pairing and clustering of schools, drastic gerrymandering of sehool zones, and grade reorganization. See Swann, 402 U.S. at 27-28. The DCSS and the district court must consider busing-regardless of whether the plaintiffs support such a propo~al. The DCSS's neighborhood plan is not inviolable. Sec> Daci.-:, 402 U.S. at 28. The
v; \Ye are not faced with the question of whether a school system may constitutionally operate a system that is in fact segregated after the system has achieved unitary status. or whether "the spirit of R1·own" would prodde a cause of action for a new set of plaintiffs. See Pitts !, 755 F.2d at 1426 (district court may consider discriminatory inumt only after a school system achieves full unitary status).

24a

DCSS's M-to-M program and magnet program do not alone suffice to desegregate the schools. We note that the
M-to-M program is not-likely to desegregate white schools. Without extensive expansion, the magnet school pro-
grams are not likely to materially desegregate the system.18

After twenty years of court supervision, the DCSS continues to operate racially identifiable schools. The DCSS has never achieved unitary status and it retains the duty to eliminate all vestiges of the dual school system.
IV. CONCLUSION

We hold that a school system does not achieve unitary status until it maintains at least three years of racial equality in six categories: student assignment, faculty, staff, transportation, extracurricular activities, and fa-
cilities. The DCSS has not achieved unitary status. We affirm the district court's conclusion that the DCSS failed to fulfill its dudes in the areas of faculty and staff. We reverse the district court's conclusion that the DCSS fulfilled its duties in the area of student assignment. Accordingly, we order the district court to require the
ness to prepare and file a plan in accordance with this
opinion in the shortest reasonable time.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

.

(
111 The magnet programs are \·oluntnry and part-time, attracting less than 1-pen·ent of the system's students.

25a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT FOR rrHE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Civil No. 11946
WILLIE EUGENE PITTS, et al.
versus
ROBERT FREEMAN, et al.
ORDER -
[Filed June 30, 1988] The DeKalb County School System (DCSS) ;vas historically segregated by law. "Dual" school systems were maintained in the County, one for black students and another for white students. In 1954, the Supreme Court's landmark decision in Brown v. Board of Education., 347 U.S. 483 (1954), signaled the end of dual systems with its pronouncement that "in the field of public education the doctrine of 'separate but equal' has no place. Separate educatiomil facilities are inherently unequal." ld. at 495. The Supreme Court's decision imposed upon all school systems, which were maintaining dual systems at that time, the duty to dismantle the dual system, avoid the reestablishment of the dual system, eliminate the vestiges of the dual system and replace the dual system with a system in which all students, regardless of their race, are provided the same edueational opportunities.

26&
In 1968, the plaintiffs, certain black school children in Dekalb County and their parents, filed this class action on behalf of all black school children in Dekalb County claiming that · the defendants had operated a racially segregated school system in violation of the United States Constitution. After this action was filed, the DCSS voluntarily undertook to work with the Department of Health, Education and Welfare (HEW), to develop a final and terminal plan of desegregation. In June, 1969, the court entered a consent order which approved the proposed plan and enjoined the defendants from discriminating on the basis of race in operating the DCSS. The court maintained jurisdiction over the case to implement its order. In the two decades that this case has been pending, the court has rarely been asked to intervene.1 Both parties have worked together in the best interest of the school system.
1 There was no significant action in this case until September, 1975. At that time, plaintiffs sought to have the DCSS declared out of compliance with the 1969 order. Plaintiffs challenged the M-to-M program, ass!gnment of staff, and changes in attendance zones. In 1976, the court entered an order requiring the DCSS to modify the M-to-M program to pro\·ide free transportation, to reassign faculty and staff to approximate the system-wide percentages, and created a Bi-racial C' ommittee to oversee future boundary line changes, the M-to-M program, etc.
In 1977, the DCSS requested the court to approve a boundary line change for Flat Shoals Elementary School. After n hearing, the court held that the school's plan met constitutional standards and approved it.
In 1978, the DCSS filed a motion asking that kindergarten and special education programs be exduded from the M-to-M program. The court denied the motion.
In 1979, the DCSS, at the Bi-racial Committee's request, moved the court to amend its 1976 order to modify the M-to-M program, such that the only schools that would be eligible to receive transferring blacks would be those schools whose black populations did not exceed the system-wide percentage of black students. The Bi-racial Committee had suggested that such a limitation might help stop white flight from transitional schools and neighborhoods. The court denied modification of the order, finding that the tran-

27a
On January 16, 1986, the defendants filed a motion for final dismissal. The defendants seek a declaration that the DCSS has achieved unitary status. When a federal court maintains jurisdiction over a school desegregation case, the school system must show that it Is unitary before it can be dismissed f:rom court supervision.. Green v. County School Board, 391 U.S. 430, 439 ( 1968).
The meaning of unitary status has not been clearly defined by the Supreme Court. As there is no binding precedent in this circuit which articulates a precise definition for the term,2 this court will use the definition
sition of the southern schools was caused by the changing complexion of the neighborhoods, rather than the effect of the .M-to-.M program.
In 1983, the plaintiffs sought supplemental relief. Plaintiffs
alleged that the DCSS had ~onspired to limit .M-to-M transfers to
Lakeside High School, that Knollwood Elementary School had been improperly expanded, and that Redan High School was also improperly increased. Plaintiffs later dropped their claim as it concerned Knollwood Elementary School. Separate hearings were held
on th~ Lakeside and Redan issues. With regard to the Lakeside
High School issue, the court ruled against the defendants. The court held for the defendants on the Redan issue. Although the court's first order on the Redan issue was reversed by the Eleventh Circuit, the order issued by this court following remand also held for the defendants. The parties did not appeal that order.
2 In Georgia State Conference of Branches of the NAACP v. Georgia, 775 F.2d 1403, 1413 n. 12 (11th Cir. 1985), the court
noted "[s]ome confusion has been generated by the failure to
adequately distinguish the definition of a "unitary" school system from that of a school district which has achieved "unitary status . . . . [A] unitary school system is one which has not operated segregated schools as proscribed by cases such as Swann and Green. for a period of several years. A school system which has achieved unitary status is one tha.t is not only unitary but bas eliminated the vestiges of ita prior discriminaiton and been adjudicated as such through the proper judicial procedures. Unfor-
tunately, the terminology used to refer to these concepts is not
universal."

28a
espoused by Judge Rogers in Brown v. Board of Education (Brown III), 671 F. Supp. 1290, 1292-93 (D. Kan. 1987), to determine whether the defendants have met their burden of proof. The following principles for determining unitary status were set forth in that case. First, "the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. Milliken v. Bradley, 433 U.S. 26';, 280 (1977). No one plan can achieve unitary status in all school districts.
The court also must be mindful that it is only segregation caused by the intentional segregative acts of the defendants that comprise the constitutional violation in this case. "De facto segregation (segregation caused by private choice) and segregation caused by authorities other than those sued in this case, are not part of the constitutional violation. . . ." B1·ou.m Ill, 671 Ji,. Supp. at 1292 (citing Keyes t'. School District Number 1, 413 U.S. 189 ( 1973 I ;. Swann v. Charlotte-Illecklenburg Board of Education, 402 U.S. 1 (1971)).
Because separate but equal schools violate the Constitution, the racial reix of students in a school is an important factor. The Court has emphasized on many occa.. sions that while racial mix is important, racial balancing is not required. E.g. SR•ann v. Board of Education, 402 U.S. 1, 24 (1971). Even the existence of a small number of one race or virtually one race schools is not necessarily violative of the Constitution. Id. at 26.
In Brown Ill, Judge Rogers furthe1· recognized th~t "[s] egregative motive or the absence of such intent is relevant but not controlling in determining unitariness. 'The measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system.' Dayton II, 443 U.S. at 538." Brown Ill, 671 F. Supp. at 1293.

29a
In the Brown Ill opinion, Judge Rogers summarized by stating that a school system that has obtained unitary status is "one in which the eharacteristics of the 1954 dual system either do not exist or, if they exist, are not the result of past or present intentional segregative conduct of the defendants or their predecessors." ld. This court finds the __.dfinition of unitary status articulated by Judge Rogers to be the clearest and most serviceable definition of that term espoused by any court. It combines all of the essential requirements from the Supreme Court opinions with a workable standard for a court to apply to the facts of a given case.
In Green, the Court delineated six pertinent areas that courts should examine in deciding whether a school system has met its burden of abolishing the former dual system. These areas include: student assignment, faculty, staff, transportation, extracurricular activities and facilities. The parties have requested that this court review one other area, quality of education, when determining if these defendants have met their burden of
proof regarding whether the ness is now a unitary
system. The court agrees that quality of education should properly be addressed.
The court held a hearing on the motion for final dismissal (or declaration of unitary status) on July 6-22, 1987. On November 22. 1987, after the parties had submitted their post-trial briefs and proposed findings of fact and conclusions of law, the court heard closing arguments on this motion. Earlier, plaintiffs filed motions
for supplemental relief and to compel the ness to file
a junior high plan. The court deferred rnling on those motions until it addressed the motion for final dismissal. All th:ree motions are now ripe for decision.
STUDENT ASSIGNMENT
Much of the evidence submitted during the hearing on the motion for unitary status properly concerned student assignment. Indeed, the separation of the races is the

30a
primary indicator of a de jure segregated school system. Plaintiffs accurately stated this court's duty, with re· gard to this issue, in their proposed findings of fact and conclusions of law at pages 54-55. Plaintiffs stated "[t]he court's task, in reviewing Defendants' progress in these areas, is to determine whether the remedies implemented by the Defendants have been effective in dismantling the old dual system. If they have, then the system should be declared unitary; if they have not, then further relief must be ordered so that the duty to desegregate is fully and finally discharged. Davis v. East Baton Rouge Parish School Board, 721 F.2d 1425, 1434 (5th Cir. 1983) ; Lee z·. JJ!acon County Board of Education, 616 F.2d 805, 808-09 (5th Cir. 1980). See also Swann v. CltarlotteMecklenberg Board of Education, 402 U.S. 1 (1971) ."
DEFENDANTS' CONTENTIONS
The DCSS' position in this motion for unitary status is that it fulfilled its duty regarding student assignment in the 1969-70 school year when it dosed the remaining de jure black schools and reassigned all students to their neighborhood schools under a bona fide neighborhood attendance plan. The DCSS argues that this action placed all students in the attendance zones they would have occupied in the absence of the constitutional violation. Al-
though the ness concedes that the school system has un-
dergone some resegregation since the implementation of
the plan and the filing of the instant motion, the ness
contends that shifting demographic factors and other factors beyond the DCSS' control caused this resegregation and that the DCSS is not legally responsible.
PLAINTIFFS' CONTENTIONS
Plaintiffs contend that the DCSS has the continuing duty to combat all resegregation until this court declares that the DCSS has achieved unitary st~tus. Their goal was to produce evidence showing that the implementation of the 1969 order did not eradicate all of the vestiges

81a
of the prior dual system, and that the ness missed opportunities to fulfill its affirmative duty to eradicate all of the vestiges of the former dual system.
To support their argument that the implementation of the 1969 order did not desegregate the ness, plainti1fs asked the court to examine the resegregation that has occurred in the ness. Plainti1fs improperly place great emphasis on the concept of racial balance 8• Plaintiffs point to these 1986-87 school year statistics: (1) 47% of the students attending the ness are black; (2) 50% of the black students attended schools that were over 90% black; (3) 62% of all black students attended schools that had more than 20% more blacks than the system-wide average; (4} 27% of white • students attended schools that were more than 90% white; (5) 59% of the white students attended schools that had more than 20% more whites than the system-wide average; (6) of the 22 neKalb County high schools, five have student populations that are more than 90% black, while five other schools have student populations that are more than 80% white; and (7} of the 74 elementary schools in the ness, 18 are over 90% black, while 10 are over 90% white.
a In Swann, the Court emphasized that racial balance is not the test of an unitary system.
If we were to read the holding of the District Court to require,
as a matter of substantive constitutional right, any particular
degree of racial balance or mixing, that approach would be disapproved. . . . The constitutional command to desegregate schools does not mean that every school in every community must always reftect the racial composition of the school system as a whole.
Sw«nA, 402 U.S. at 24.
• For purposes of this order all white and minority students other than blacks will be referred to as W}lites. There was no evi-
dence presented that at the time this action was instigated that
non-black minority students composed even one percent of the student population of the DCSS. Thus. 94.4% of the students attending the DCSS in 1969-70 school year were white.

32a
Plaintiffs also contend that the DCSS missed opportunities to fulfill its duty regarding student assignments. Plaintiffs' primary evideEce in this regard was the testimony of Dr. Robe1t Dentler 5 about the DCSS' failure to take advantage of certain desegregative tools: (1) the DCSS did not subdistrict, that is, the DCSS did not break this large county into subdistricts and racially balance all of the subdistricts; (2) the DCSS did not expend sufficient funds to target minority learning opportunities; (3 1 the DCSS did not put in place community advisory mechanisms bearing on equalization of treatment, other than the bi-racial committee that was established by the .. court; 14 ' the DCSS could have modified the old "freedom of choice" plan to use it for desegregative purposes; 15 • the DCSS could han' clustered schools, placing chilJren at different grade levels in different schools; thus, establi~hing a feeder pattern; 16 1 the DCSS could have used magnet schools eadier than DCSS chose to use them; and 111 tl1e DCSS <.ould have used urban to suburban exchanges of students. 1Transcript Vol. IX at 43-47)
While the DCSS had an affirmatin~ duty to eradicate tl1e vestiges of the former dual system during this period, it. is undisputed that plaintiffs did not seek court inter\·ention to 1·equire the DCSS to imr)lement any of the de.seg1·egathe tools described above. In fact. plaintiffs did not 8eek further judicial inte1-vention in this case until 1~75, lm"lg after plaintiffs claim that other desegregatiYe tcols should ha \'e been utilized by the DCSS. Even then, the plaintiffs did not seek impleme!·.tation of the changes l hat they now seek.
s Dr. Dentler was qualified as an expert in the areas of student assignment, educational administration. staff desegregation, program de·•elopment and evaluation, specifically in the areas of desegregation, demographics, human relations and transportation. (Transcript Vol. IX at 12-13)

33&
DISCUSSION
Prior to the 1966-67 school year, the DCSS maintained dual attendance zones for both blacks and whites. Be-
ginning with the 1966-67 school year. ness repJacefl
the dual zones with a system of geographic zones with a "freedom of choice" transfp~ plan. While this plan resulted in a number of black students attending de jure white schools, the system had no significant impact on the former de jure black schools. The majority of black students still attended the de jure black schools. While neutral on its face, the "freedom of choice" plan did not dismantle the dual systems. In Green v. County School Board, 391 U.S. 430 (1968), the Supreme Court held that "in desegregating a dual system a plan utilizing 'freedom of choice' is not :1n end in itself. . .. Rather than further the dismantling cf the dual system, the plan has operated simply to burden children and their parents with a responsibility which B1·own II placed squarely on the School Board." Id. at 440-42.
Within two months of the Supreme Court's decision in Green, the plaintiffs filed this action. By order of June 12, 1969, the consent desegregation plan for DCSS was implemented. That order was d~igned to be a final and terminal pJan for desegregation. The order abolished the "freedom of choice" plan and impl.emented a single neigh-
borhood school attendance policy. An of the remaining
de jure black schools from the previous dual system were closed. In 1969, the school population of DeKalb County consisted of 74,741 students of which 3,754, or 5.6% were black.
Plaintiffs concede that "the closing of the black schools in 1969 did, for a time, result in the desegregation of the schools of DeKalb County...." (Plaintiffs' trial brief at 7) The court agrees with plaintiffs' concession. Plain·
tiffs further contend that the ness has become resegre-
gated anrl that the defendants are responsible for that segregation. While the court agrees that the DCSS has

34a

become largely resegregated since the 1969-70 school year, the court does not find that the defendants are legally _ responsible for the resegregation.

Plaintiffs concede that the racial segregation in DeKalb County is the result of demographic shifts. In fact, plaintiffs' leading expert, Dr. Dentler, test~fied that "there were profound changes taking place demographically [from 1969 until 1986 in DeKalb County] .u (Transcript Vol. IX at 38 • Plaintiffs' correctly contend that not "until all vestiges of the dual system are eradicated can demographic changes constitute legal cause for racial imbalance in the schools." Lee v. Macon County Board of Educati-on, 616 F.2d 805, 810 (5th Cir. 1980) (citing Flax P. Potts, 464 F.2d 865 15th Cir. l, cert. d('nied, 409 U.S. 1007 11972) I. Plaintiffs seemingly further contend, however, that until the school system is declared unitary, not all vestiges of the former dual system will be eradicated. ~ch a contention, of course, is erroneous. It is axiomatic that all vestiges of a dual system must be eradicated at a point in time before the school system is declared. to have unitary status or the school system must be declared to have achieved maximum possible desegregation.

It is clear that the simple act of implementing a con-

stitutionally accepted plan does not make a school system

desegregated. United States 1'. Texas Edur-ation Agency,

647 U.S. 504 (5th Cir. 1981) (Unit A), cert. denied sub

norn., South Park Independent School District 1'. United

States, 454 U.S. 1143 (1982 i (citing Henry r. Clarks-

dale Separate School District, 579 F.2d 916, 921 (5th

Cir.

1978) l ;

see

Thompson

r.

lt{adi.sot;., ~

County

Board

o. f

Educati()n, 496 F.2d 682 (5th Cir. 1974t. At points in

their briefs, the defendants seemingly make the argument

that such an implementation does :relieve the school sys-

tem of its affirmative obligations. To the extent that the

defendants arguments can be read as supporting this con-

35a
tention, the court rejects their arguments. This court is mindful of the Fifth Circuit's guidance in Lemon t'. Bouier Pamh School Board, 444 F.2d 1400 (5th Ch·. 1971), that "' [o]ne swallow does not make a spring.'"
The court will now examine the evidence presented at trial concerning the vestiges of the former dual system after the desegregation order was implemented in this case. When the June, 1969 order was initiated, all children were assigned to their neighborhood school. As the court noted above, plaintiffs concede that this action effectively desegregated the DCSS for a period of time. The evidence that plaintiffs presented at the hearing which tends to show that the implementation of the June, 1969 order did not effectively desegregate all of the schools for a time period was presented by Roger Mills. Mr. Mills has been involved with this case in several different capacities. His initial involvement was as a named plaintiff in 1974, he subsequently became involved as cocounsel, and later se!"':ed as a member of the bi-racial committee. He testified that "there were two schools that were majority black despite the implementation of the court order. The first school was Terry Mill Elementary School which was 76 percent black, and the second school was Stoneview Elementary which was 51 percent black." (Transcript Vol. VII at~)
The court will accept the witness' contentions regarding these schools, because plaintiffs' exhibit number 95, which contained the same information, was admitted into evidence. The court notes, however, that plaintiffs did not show that Mr. Mills had a basis for personal knowledge of the school system during the 1969-70 sehool year. Mr. Mills did not enter this case until 1974. and he testified that he moved into DeKalb County on January 1. 1974. (Transcript Vol. VII at 188).
The court has some concern that two of the formerly de jure white schools were majority black at the time the desegregation plan for DeKalb County was implemented.

The court views one race sehools in the DCSS. both now and then. with suspicion. "The existence of a small number of one race, or virtually one-race, schools [however] within a district is not in and of itself the mark of a ~ystem that still practices seg-regation by law:'' Swantt. 402 V .S. at 26. The court was present-..od with no evidence that these schools are a vestige of tbe dual sys· tern. The evidence presented at the hearing showed that demographic shifts in the Atlanta .Metropolitan Area began in the 1950s. In the 1950s, the population of DeKalb County was bas.ica!ly white: but as more and more blacks mm·erl into the Atlanta :Metropolitan Area. the rapidly g1·owing black population began to move into the south-
Wei't DeKalb County area. The area surrounding Terry Mill School was one of the first areas to be effected by a rapid shift in the minority population.
D1~. D~wid Armour testified about why Terry Mill was a majo~·!ty black school at the time the desegregation plan wa~ implemented in DeKalb County. Dr. Armour is an t-xpert in the are::._• of the educational and social efi'eets nf dt>~egregation planB. including aeade":iic acbi~v~ment; the etfeds of demog1·aphics on schooi , m·oliment trends; th~ eYaluation of altet·native desegr~ation plans; the c~w"e:-:: of re~idential &:>gregation; assignment crf faculty and :taff in :=chool desegregation plans; research methods ann ~u · methods; and statist.ieal analysis of data. Armour te~tified r:hat in 1966 Terry Mill had only two blaci{ stud~tr:. and 500 white stuJents. By 1967, due to thE• popuiatjon ~hifts of black residents from the City of Atlanta irito DeKalb COtmty, 23% or 140 out of 613 students at the sehool were blaek. In 1968, wh~n the plan was adopted. the percentage of blacks and whites was equal. By 1969. when the plan was implemented, the percentage of blt.ick students at the school was 76%.
(Transcript Vol. V at 120-21 l
There was no evidence }:resented that the former dual
system in any way contributed to the rapid racial transition of that school. Nor was there evidence that a for-

37a
merly de jure black school was located within that area. Terry Mi!l was, of course, a formerly de jure white
school. For these reasons, the court cannot find that the prior unconstitutional acts of the defendants were re-
sponsible for the high percentage of minority students in Terry Mill School in 1969.
The court is uot as concerned with the racial imbalance
in 1969 in the Stoneview Elementary School. The racial
mix at that ~chool was practically 50-50. There was only one percent m01·e black students in the school th8Jl white students. That mix rept·esents perhaps the ideal racial integration situation. Practically equal numbers of black anct white children attended school together. The court
notes that, unlike the majority of the County, this area
has been chara:-te1·izfld as a stable integrated area since the inception of the L>tegration plan. The racial mix of the same school in the 1986-87 school year, according to plaintiffs' evidence, was 53 c~ black
There was insufficient evidence presented to this court from which it can make a determination, as defendants urge. that the implementation of the 1969 order resulted
in full eradicat >m of the \·estiges of the dual system that
would entitle them to a declaration of unitary status on
this issue. \Vhile the court is satisfied that the two ma-
jorit~r black schools that were in place when the o~r took effPct in the 19(1~1-70 :::ehool year are not Yestigeg of defendants' prior unconstitutional conduct, there was insufficient e\·ident-e presented about how lon-g the school system remained relath·ely de~egated before demographic changes had the effect of resegregating certain
schools. There is eon~iderable evid~nce that tM defendants actions in 196~ resulted in elimination of most of the vestiges of segTegation. The achievement of unitary status in the area of student assignment cannot be hedged
on the attainment of such status for a brief moment. For this reason. the court finds it necessary to examine the :::•.ctions L.f the DCSS over the last two decades.

38a
HISTORY OF THE DEMOGRAPHIC CHANGES IN DEKALB COUNTY
A true understanding of the problems and successes of the DCSS cannot be found without an examination of the demographic changes experienced by DeKalb County in the ;>eriod between 1969 and 1986. DeKalb County has ~.-.perienced phenomenal gro\\1:h since 1950. In 1950, the County's population was a mere 77,000. By 1985, the populati~.m was in excess of 450,000.
In 1970. there were 7,615 non-whites 6 living in the n01 thern par·t of DeKalb County and 11.508 non-whites living in the ~outhern part of the county. By 1980, there were 15.365 non-whites living in the northern part of DeKalb Coumy and 87,583 non-whites living in the southern portion. Between 1975 and 1980. approximately 64.000 black eitizens moved into southern DeKalb County, most mo,·ing from the City of Atlanta. :Meanwhile. approximately :37 white residents moved from southern DeKalb ('oumy to surrounding counties, mostly Gwinnett County. \\,"hi1e there was some growth of the white population in ~~)uth<•rn DeKa!b County from 1950 until 1975, in norther11l D<~Kalb County, the number of whites grew t remendousiy dJU*iD_K__that period.
As the re!'uh of th~ demographic shifts. the population of the northern h:df of DeKalb County is now pre-
dominan'Lly v•hite and dw s..outhern half of DeKalb Cour,
i~ predominantly black. Evident-e pn:::;~ented at the heal-ing indical~ !hat raciaily stable neighbm·hoods an? no:. likely becauge ..Vhites prefer a racial mix of {- white and 20,.,. blaek. \\·hHe blacks prefer a racial r (-50(< mix. !Transcript \"ol. V at 53 i The demographic ilhifts ha\·e also had an immense effect on the r~~al oom~itio~ of the DeKalb Covnty schools. From the period of 1976-
19816, at the elementary level, the ness experienced an
fi In this context. the e\·idence prese!llted to the court distinguished bi,>,tween whites and non-whites. that i:-. minority students including nu:l blacks.

89a
enrollement decline of 15% , and within this change, an increase in black student enrollments of 86%. At the high school lev~l, during the same period, DCSS experi~mced an enrollment decline of 16%, while the number of black students rose by 11990.
STEPS TAKEN BY THE DCSS TO COMBAT DEMOGRAPHIC CHANGES
Since 1976, a bi-racial committee, appointed by the court, has reviewed all proposed boundary line changes, all proposed school openings and closings, and the M-to:\f program. Since the implementation of court-ordered desegregation in this case, there have been approximately 170 boundary line changes. Dr. William Clark, an expert in the areas of urban geotgraphy, demographie processes, statistics methodology, housing patterns and survey analysis, testifioo that the boundary line changes had no significant impact on the sc.hool populations, given the tremendous demographic shifts that were taking plaee at the same time. He opined that if no boundary lines had been changed. the shifting demographics still would have resulted in a sif.,rnificant increase in black population in many schooh:. especially those located in the southwest DeKalb area. Although the defendants' evidence showed that three boundary changes had_at least a partial segregath·e effeet. Dr. Clark testified. and this court finds? that e\·en if a boundary change might have had a short-term effect on 5egregation. in the Jong run these boundary changes did not have a significant impact on the racial mix of the sehooi population5. 1'Pranscript Vol. I at 73,.
74 1
To t'Ombat the shifting demographics, the DCSS volun·· tarily implemented a i\linority-to-Majority program 1 in the 1972 school year. Using approximate numbers, 4,500
1 The M-to-:M transfer policy al1ows a .5tudent t{) transfer from a school in which his race wa..'l in the majority to one in which his race was in the minority.

40a
students of the 72,500 enrolled in the DCSS in the school year 1986-87 participated in that program. Participation has grown steadily in the program over the last decade at the rate of about 500 students p2r yea:r. (Transcript Vol. V at 61) Dr. Armour testified that the impact of the M-io-M students goes far beyond the number of students transferring under the program. He testified that at the receiving school approximately two white students for every black student is exposed to an integrated learning experience. (Transcript Vol. V at 61-62 1 Thus, approximately 19~,;; of the students attending the DCSS had an integrated learning experience as a result of this program.
In the 1980s. the DCSS also instigated a magnet school program in schools located in the middle of the County. The location of thesB programs in the middle of thf. County is of critical importance for desegregative purposes. As was rl.iscussed above, the southern half of the Coun ~y is predominately black, while the northern half of the County is predominately white. Only special academic programs located in schools in the middle of this rather large county haYe much potential for attracting both black and white students.
The magnet ~chool programs in effect at the time of the hearing include: a performing arts program at AYondale High School: the Scientific Tools and Techniques program at Fernbank Science Center: a seience program for gifted anct talented elementary children at Snapfinger Elementary School: a foreign language program at Briarcliff High School. At the hearing, Dr. Robert Freeman, S1Jperintendent of the DCSS, testified that the DCSS aiso nad plans to maintain programs at three other sehools as magnet programs: the open campus located at B~·iardiff: the Orcupational Educational Center North; and the Occupationa! Educational Center Central. The DCSS has two other magnet programs on the dl'awing board: a school for the gifted and talented at Kitt-

41a
ridge Elementary School and a program for four-yearolds at Evansdale Elementary School. The DCSS also operates a number of integrated experience programs: the writing center programs for both fifth and seventh graders that are racially controlled; the driving range school is racially controlled; summer school programs are racially controlled as much as possible; and a racially controlled dialectical speech program was to be implemented in the 1987-88 school year.
HAS THE DCSS ACHIEVED MAXIMUM DESEGREGATION?
The Court has examined the efforts that plaintiffs contend defendants should have taken to achieve unitary status in the area of student assignment, the steps that the DSCC has taken to aCCQmplish their goal, the dynamics of the changing demog1·aphics, and the effeets of the changing demographics on student attendance. With these factor~ in mind, the court must decide if the defendants have accomplished maximum practicai desegregation of the DCSS or if the DCSS must still do more to fulfill their affirmative con:• itutional duty.
.Most of plaintiffs' efforts to convince this court that defendants must do more to fulfill their constitutional dutv centered on Dr. Dentler's testimony ahout what d'!segregative tools. were at the defendants~ disposal during the time that the reseg:regation of the County was taking place. Dr. Dentler summarized his testimony in this manner:
The [DCSS 1 is :racially imbalanced~ it has schools that are extremely isolated racially~ that continue to be identifiably black and identifiably white. !t h'!S
failed to comply even in the broadest interpretation I could make with the single standard on certificated stat tSic]. It does not have a bi-racial committee which engaged [sic1 in advising and guiding on desegregated strategies and race relations. It has an

42a
M-to-M program which has done about as much as it can do, which is very little, to desegregate the system. It has the barest bones beginning-s of magnet programs, affecting in my count about 500 students at present, and there are some good ideas going, but they have a very long way to go, and they are in shortfall right now.
So even on my briefest list, this district is segregated and has not offset the vestiges of discrimination as they impact on the chHd's daily learning experience, and that's the essence of the school treatment. It's not a unitary district, and it<3 got some exciting good intentit1ns which I have tried to note and honor, hut . . . they don't bear on this assessment.
{Transcript VoL IX at 123-24)
TQ rebut this evidence, the defendants presented the testimony of Dr. C~-:·1stine Ros...--ell, an expert in the ·.&reas of evaluation of alterne.\tive desegregation plans, t~\e de~ sign and irrvlementation of desegregation plans, the effect of o:segregation plans on learning, the eif~-et of de.::.gregation plans on demo~:~raphics and sta~istical am.dysis of data. When asked vhether she agreed with Dr. Dentler that the DCSS did •~ot properly respond to the population shifts occurring duria:g- the !970s and 198tls. Dr. Rossell testified:
I am sure that [the DCSS] could have done something to make marginal adjustments, but these trends are so massive that [th~~ DCSS] could only have had a marginal effect. The b~ic trend was racial transition, black~ moving frcm Atlanta into ~Kalb County, and . . . there is nothing that would have chang,~ that basic factor.
(Transcript Vol. XI at 85) When asked whether magnet schools would have worked in the mid-1970s, the period of time when Dr. Dentler advocates that such pro-

43a
grams should have been started in the DCSS, Dr. Rossell testified that all studies available at that time, concerning the effectiveness of magnet programs) indies\ted that magnet programs were not very effective. (Transcript Vol. XI at 86-87)
To rebut Dr. Dentler's testimony that the M-to-M Program as implemented ~n the DCSS is ineffective, Dr. Rossell testified that, in 1987, theM-to-M transfers will reduce "racial imbalance by 18 percentage points if you use the index of dissimilarity comparing blacks to nonblacks, by 20 percentage points if you use the :relative exposure index comparing black-; to non-blacks. That is a fairly large reduction in racial imbalance." (Transcript ".."ol. XI at 37) Dr. Rossell further testified that the magnet programs and integrated learning experience programs implem~nted by the DCSS have had positive effects on desegregation and racial exposure. (Transscript Vol. XI at 95) .
Once again this court is faced with the "battle of the expe1·ts." The testimony of the opposing experts in this case is so contradictory that to accept the testimony of plaintiffs' experts neeessitates that the court discr~...it most of the testimony of the defendants' experts, and vice-versa. Faced with this decision, the court finds the evidence pr~nted by the defendants~ experts to be :rnore reliable on this issue. The defendants' experts were more familiar with the DCSS. They had spent more tmie than
plaintiffs' exper~ in the ness. learning about the inner
workings o; the ness and its problems and suceesses,
rather than treating the DCSS as a hypothetical situation. The court notes that Dr. Walberg, Dr. Armour, Dr. Ros.sell and Dr. Clark are leading experts in their respective fields and all have had considerable experience in the desegregation area.
Plaintiffs' desegregation expert, Dr. Dentler, did not base his testimony on an empirical study of the school

44a
system. Due to his lack of personal knowledge of the DCSS, he was forced to treat the DCSS as a hypothetical situation. Based upon data made available by the sehoo! system, his tes~imony centered on the failure of the DCSS to achieve racial balancing. The eourt found more compelling testimony about what is being and can be done to improve the quality of education for all students .,nd achieve maximum practical desegregation at the same time.
Based upon the evidence presented at the hearing, the court finds that the DCSS has done everything that was reasonable under the circumstances to achieve maximum practical desegregation in DeKalb County. Plainti1fs request the court to go back in time and ask the question "what if the defendants had. tried this thenT" That time has passed. While the1·e may be some ease authority for approaching desegregation eases in that manner, this court will not dwell on what might have been, but what else should be done now. "At any time, more could have been done to achieve racial balance in the schools. But, it begs the issue of this case to argue that meial balancing must be don~ today because it was not done ye&--
terday." BrowRlll, 671 F. Supp. at 1309.
Although the defendants might have been able to do something more to maintain desegregation while the dramatie population shifts were occurring, the court, based
on the evi~ presalted at the hearing and the· court's
long involvement 5 in this ease, finds that defendants' K-
ticm.s aehieved maximum practical desegregation from 1969 to 1986. The rapid population shifts in DeK.alh
County were not caused by any aetion on the part of the DCSS. These demographic shifts were inevitable as the result ot suburbanization, that is, work opportunities
arising in DeKalb County as well as the City .ot Atlanta,
• The undeniped was a.uiped to this case on January 8, 1981, approximately twelve yean after it& filing. Prior to that time. Judge Newell Edenfield superv~d tbia case.

45a
which attracted blacks to DeKalb; the decline in the number o.f children born to white families during this period while the number of ehildren born to black families did not decrease; blockbusting of formerly white neighborhoods leading to selling and buying of real estate in the DeKalb area on a highly dynamie basis; and the completion of Interstate 20, which made aeees from DeKalb County into the City of Atlanta much easier. (Transcript Vol. IX at 33) There is no evidence that the school system's previous unoonstitutional eonduet may have oontributed to this segregation. This court is eon.. vineed that any further actions taken by defendants, while the aetions might. have made mugiDal adjustments in the population trends, would not have offset the fac-
tors that were describt-wi above and the same racial sec·
regation would hav--.: ocr:urred at approximately the same speed.
This court does not dinmiss lightly plaintiffs allegations that the defendants could have done more to dese~te the DCSS. "The failure to take deeegreptive aetion by a distriet that had an affirmative duty to desegrepte should be carefully examined by the eourL U a distrirt hu consistently dragged its feet oo de8egreptioo tbeD the vestiges of the regregated system may remain." Brow'~~ Ill, 671 F. Supp. at 1308. Although the plaintiffs, defendants, and the HEW an oonsented to the June, 1969 order implementing a race--neutral neighborhood sdwol syste~ the Court later made it clear in StotJa~~~ and Greftt that sueh plans would not satisfy the duty to desegregate unlee& it did effectively ~te the sy&tem. Even though a student aaaigmnent plan may be racially neutral. unl~ the former vestiges have been removed, a raee-r,eutral plan can perpetuate the forme.r dual qstew.
To reiterate, this court finds that the implementatiGn of the June, 1969 order eradicated most of the vestiges of the former dual system. Defendants' efforts to deseg-

46a
regate this system did not end there, ho'\Vever. When
faced wth rapid resegreg-ation of the system, the ness
implemented both a M-to-M program and a magnet program. Both of these programs were implemented without the prompting of this oourt or the plaintiffs. Both of these programs ha,ve achieved a degree of success in desegregation and racial exposure.
Although defendants did not implement all programs desclibed as permissible in Stt-'anu, t'bis court cannot find that it neglected its constitutional duty to eradicate the vestiges of the former dual system. The great weight of the evidence indicates that the segregation that occurred in DeKalb County would have taken place at approximately the same speed whether or not defendants had implemented the desegregative tools described by piaintiffs. While racial mixture is a proper goal of a formerly segregated sehool system, there is no constitutional right for any student to attend a school having any partieular degree or racial balance or mixing." MiUiken v. Bradley (Milliken II J, ~13 U.S. 267, 280 n. 14 (1977); PatJallerw. Board of Edurotion v. Spangler, 427 U.S. 424, 434 t 19761. At this juncture, the court is convinced that, absent ma..~ive bussing, whieh is not considered as a viable option by either the parties or this court, the magnet school program and the M-to-M program, which the defendants voluntarily implemented and to which the defendants ob~ioosly are dedicated, are the most effective ways to deal with the effects on student attendanee of the residential segregation existing in DeKalb County at this time.
Based upon the dramatic effect the implementation of the June, 1969 order bad on eradi~ng the vestiges of the prior dual system, the DCSS' continuing efforts to battle resegregation by implementation of voluntary Mto-M and magnet sehool p~ the absence of any persuasive evidence indicating that the actions of the DCSS in any way promored the r~tion that occurred in the County, and the evidence that indicates

47a
that other efforts by u-.e DCSS would not have effectively stopped or even slowed the rapid demographic changes that brought residential segregation to the County, this court finds that the DCSS has achieved m&ximum rraetieal desegregation as ~~f the 19~7 ldlool year. The goal
in desegregation cases is to achieve the "4greatest possible
degree of actual desegregation, taking into account the practicalities of the situation.'' United States t'. DeSoto Pamh School Board, 574 F.2d 804 (5th Cir. 1974), cert.
denied, 439 u.s. 982 (1978). The ness has become a
system in which the characteristics of the 1954 dual system have been eradicated, or if they do exist, are not the result of past or present intentional segregative conduct by defendants or their predecessors. Broum Ill, 671 F. Supp. at 1293.
Plaintiffs argue that further desegregation may be accomplished by, i1"t.:r alia, establishing a magnet school program or grade reorganization plan, such as a oompre-hensive junior high schoo1 plan. The court agrees with plaintiffs contentions in this regard. As the co111rt discussed above, the defendants are obviously dedieated to the magnet program and the court d~ not find that court supervision is necessary to insure that magnet programs a.re used to bring about maximum practical desegregat'lon.•
The court is concerned that the defendants are not seizing the opportunity of implementing a junior high program to bring about further desegregation, if possible. The parties agreed that in the area of student assignment. the cut-off date for evidence in this area would be the 1986-87 school year. All eviden<.-e presentoo to the
9 m the defendant's poat-trial brief at P€'1'6 36, defendants state:
"[a]s the court heard, Defendants remain committed to providiq all students the opl)3rtunity for an integra~. education, and will
continue to devote significant resources to the M-to-M program. integrated experience programs, and magnet programs with or without eourt supervision."

48a

court indicates that the ness obtained maximum prac-
tical desegregation through that cut-off date. Thus, the defendants have fulfilled their constitutional obligations in this area. For that reason, the court denies the motion of plaintiff to compel the defendants to ftle a jurtior high plan.
STAFF ASSIGNMENTS
The assignments of both teache1-s and principals have been chall~Hged in this case as violative of the dictates of Singleton v. Jacbon Municipal Separate School Dise t-rict, 419 F .2d 1211 (5th Cir. 1969) , cert. denied, 396 U.S. 1032 I 1970). The court will first address the issue as it concerns teachers.

While the DCSS maintained a dual system, only black

te<.~chers were hired to teach black students in all-bla~k

schools, ahd only white teachers were hired to teach in

the all-white schools. Of course, a segregated faculty is

,·estige of the former dual system, and all sehool systems

that mah1tained a dual ystem have the affirmath·e duty

ta eradic;.lte this vestige. As long as schools have facul-

ties that are identifiably of one race, it is unlikely that

the schools will be able to successfully assimilate students

cf another race.

-

Plaintiffs do not contend that the defendants have not fuililled their eonstitutional obligation with respect to hiring and retaining minority faculty. The proper gauge of the defendants>' oonduct in respect to hiring minority wachers is the :n1cial composition of a district's teacher work force as collllpared to the racial composition of the qualified public school teacher population in the relevant labor market. Hazelwood School District t•. United States, 4:l8 U.S. 299, 308 t 1977); Fort Bend Jndependetlt School District r. City o.f Sta.fJord, 651 F.2d 1133, 1137-38 (5th
Cir. 1981) (Unit A 1. Plaintiffs concede that defendants
have acth·ely recruited qualified black applican~~, and that the result of their efforts has allowed the defendarA..s to hire a significant number of black teachers, even

49a

though the number of black students graduating from

colleges in the United States with bachelor deg1ees in th,~

field of (..f]ucation has declined since i975 and is still

decreasing. While the state-wide average percentage of

black teache~ within a school system was 21% in 198(),

the ness percentage was 26.92%. In the last five years.

ness the

has continuously employed a greater percent-

~~ of black teachers, than was the state-wide aYerage.

ness The court notes that the

has an equally e?temp1ary

record in retention of_ black teacherd.

Plaintiffs do l:ontend, ho~~ver, that the defendants have not complied with o&e of Singleton's requirements. Singleton pronoun~ three governing principles with respect to faculty employment practices during the de...~·e­ gation process. Plaintiffs ehallen~ only the first pronouncement, that is, plaintiff::. ropt~d u'lat the defen. lants have failed to follow the ~l (>tnent 1):~t "principals, teachers, teacher-aides and other staff who worl~ directly with children at a school shall be so assigned
that in no case will the racial composition of a staff indicate that a school is intended for Negro 5tudents m·
white students." ld. f..t 1217-18.10 The court agree:; that the defendants have not complied with Singleton with regard to assignment of minority faculty.

The coul"'t notes, that in 1976, while Judge N evrell Edenfield supervised this case: the deftmdants were found to be out of compliance with the first Singleton requjrement. In his order of November 3, :._976. Judge Eden-

10 The other two requirements of Singlpttm foUow. Sitaglctcm
prohibits a school system from discriminating in the hiring,
assignment, promotion, pay, demotion or dismissal of faculty memben and staff. Fuwly, Sitagleton requii.'ea that in school districts in which th0 proeeu of deaegreg~tioo eft'eets a reduction in the number of teachers or othelt' profession~. ls employed by the di.rtrict, the school district must select the staff memben tn be dismissed or demoted or. the basis of valid non-di&:"'l"iminatory r~asons. 419 F.2d
at 1218.

50 a
field made the following findings of fact and conclusions of Jaw on .this issue:.
The court finds that the defendants have not taken adequate steps to utilize reassignment of teachers to reduce the racial identifiability of faculty in ac-
cordance with the standard set out in Singleton v. Jackson Municipal Separate School District, supra. In Singleton, the Court of Appeals for the Fifth Cir-
cuit held that in order to reduce racial identifiability of a faculty, staff should be assigned so that the ratio of black to white teachers in each school is "substantially the same" as the ratio throughout the entire system. 419 F.2d at 1218.
Defendants ask that the court compare the facts in the instant case with Ellis v. Board of Public Instruction of Orange County, 423 F.2d 203, 205 (5th Ch-. 1970), where the court found the school system to be in compliance with Singleton, despite the existence of racial ratios in individual schools twelve percentage points higher than the racial ratio of the entire school system. While the court is aware of the problems inherent in requiring that the teachers at any school be maintained at an exact arbitrary racial ratio, [cite] the current 40-48% of black teachers in some of the more predominantly black elementary schools does not even "approximate" the 15% system-wide ratio [cite].
A significant reason for the wide disparity in the racial ratios amongst schools in DeKalb County is the reliance on the replacement process, and the avoidance of reassignments to even out the distribution of faculty. The court finds that this system does not comply with the Singleton standard, nor with this court's 1969 order which required reassignment of teachers to eliminate the effects of the dual Rchool gystem. Accordingly, reassignment of

51 a
teachers must be utilized to make the racial ratio of the fac-alty in individual schools truly substantially similar to the system-wide ratio. [cite]
Order of November 3, 1976 at 15-16.
There wa.s no evidence presented at the hearing that after Judge Edenfleld issued the order referenced above that the defendants reassignoo their teachers to make the racial ratio of the faculty in individual schools truly substantially similar to the system-wide ratio. All evidence indicates that the DCSS has continuously :relied upon the replacement process to achieve Singleton requirements and avoided using mandatory reassignment. The res:llt of this policy is that defendants have never satisfied their duty to comply with Singleton.
Defendants argue that if the court views the system as a whole they have complied with Singleton. Defendants contend that plaintiffs improperly look at particular schools. Defendants obviously misread the requirement of Singleton in this regard. The pertinent language from that opinion follows:
For the remainder of the 1969-70 school year the district shall assign the staff described above so that the ratio of Negro to white teachers in each school, and the ratio of other staff in each, are substantially the same as each such ratio is to the teachers and other staff, respectively, in the entire school system.
419 F.2d at 1218 (emphasis added). The proper focus for both the court and the parties are whether individual schools deviate substantially from the system-wide average.
Plaintiffs presented evidence that in the 1984-85 school year, seven schools deviated more than 10% from the system-wide average of 26.4% minority teachers in th~} elementary schools and 24.89% minority teachers in the high schools.

52 a

School

% Black Students

% Black Faculty

% Deviation

Briarlake Elem Chapel Hill Elem
Gresham Park Elem
KeHeyLakeElem L~slie Steele Elem Wadsworth Elern
Gordon High

17.1% 96.9% 98.2% 98.7% 99.0% 95.5% 99.4%

14.29% 38.89% 39.29% 38.46% 37.04% 47.83% 39.22%

-12% +12.5% +13% +12% + 11% +21.5%
+ 14.4%

For the 1985-86 school year, the system-wide percentage teachers rose to 26.7% minority teachers in the elementary schools and 26.36% in the high schools. The evidence shows that the number of schools deviating more than 10% from the system-wide average rose also.

School

% Black
Students

% Blaek Faculty

% Deviation

Briarlake Elem Hightower Elern KingsleyElern Medlock Elem Chapel Hill Elern Sky Haven Elem Leslie Steele Elem Wadsworth Elem Gordon High Walker High

18.9% 18.2% 2.8% 34.4% 97.5% 98.0% 99.2% 96.7% 99.6% 99.0%

13.79% 12.50% 16.67% 15.79% 41.46% 39.13% 39.29% 41.67% 39.58% 41.27%

-13%
-14% -10%
-11%
+ 15% +12.5% + 12.5% +15% + 13% + 14.5%

In the 1986-87 school year, the numbers increased again. During that year 15 elementary schools and 2 high schools fell outside the 10% range. Again, the ratio of minority faculty rose, reaching 27.3% in the elementary schools and 25.95% in the high schools.

School
Hooper Alex. Elem Austin Elern Cha:pel Hill Elem Gresham Park Elem Hightower Elern Kelley Lake Eiem Kingsley Elem Meadowview Elem Oakcliff Elern Sky Haven Elem

%Black Students
94.0% 1.1% 98.5% 98.0% 30.5% 98.8% 2.9% 82.4% 14.9% 97.3%

%Black Faculty
37.5% 13.33% 39.53% 43.75% 15.0% 46.67% 15.38% 42.31% 17.14% 40.43%

%Deviation
+10.2% -14% +12% +15.5% -12% +19.5% -12% +15% -10.2% +13%

53 a

Smoke Rise Elem Leslie Steele Elem Terry Mill E!em Toney Elem Wadsworth Elem Columbia High Redan High

12.9% 99.6% 98.4% 97.7% 96.8% 98.4% 33.2%

13.61% 37.93% 47.06% 38.46% 40.0% 36.0% 15.71%

-14% +10.5% +20% +11% +13%
+ 10.1%
-10.2%

Although the DCSS is not legally responsible for where black and white fanulies chose to live in DeKalb County, the law of this circuit makes it legally responsible for· the allocation of minority teachers. Defendant offers two excuses for its failure to achieve perfect Singleton compliance. First, defendant argues that competition among local school districts is very stiff and that it is difficult to attract and keep qualified teachers if the DCSS requires that the teachers work far from their homes. The former Fifth Circuit Court of Appeals rejected a similar argument in United States v. DeSoto Parish School Board, 574 F.2d 804 (5th Cir.) ~ cert. denied, 439 U.S. 982. In DeSoto, the court said:

Pointing to the difficulties DeSoto Parish faces in competing with nearby, wealthier school systems in attracting and keeping qualified teachers, the board asserts that measures such as reassignment to achieve compliance with Singleton will lead to large numbers of faculty resignations. The fear of faculty resistance to desegregation measures, like the fear of community resistance, cannot be allowed to defeat an effective desegregation plan in favor of a plan that is unlikely to achieve a unitary system.

ld. at 817. The court is not unsympathetic t{) the difficulties that the\ DCSS faces in this regard; however, the law of this circuit requires the DCSS to comply with Singleton's requirements now.

The DCSS maint~ins a transfer program. Under this program, if a teacher has taur-ht at the same school for a period of three years, the teacher may request a transfer to another school. (Defendants' exhibit 83) The pre-

54 a
dominant reason given by both black teachers and white teach.ars when requesting transfers is that they have a desire to work closer to their residence. This allows the teacher to coordinate classroom activities with community and civic activities and alleviates travel inconvenience. (Transcript Vol. II at 19-22) The court notes that since DeKalb is such a large and densely populated county, the ability to work close to home can save an individual significant daily travel time. While the number of transfer requests received by the County is relatively high, the number of transfer request that are granted is relatively low.11 Since the teachers' requests are to transfer to schools near their home, however, the transfers that are granted deter th~ DCSS from achieving its Singleton goal.l2
Plaintiffs further contend that the DCSS' placement of principals violates Singleton. Plaintiffs do not contend that the DCSS has failed to fulfill its constitutio11al obligation concerning the hiring and retention of minority administrators. As in the facl'.lty area, the DCSS has an exemplary record in hiring and maintaining minority
professional staff. Blacks now compose 26.5 o/o of the ad-
minish·ative staff of the DCSS. Blacks are represented
u At the high school level in the 1986-87 school year, 79 requests were made. Seventy of the requests were made by white teachers, and 9 by black teachers. Of the 79 requests, 26 were granted, 24 to white teachers and 2 to black teachers. At the elementary level, 103 requests were made, of which 57 were granted, 40 to white teachers and 17 to black teachers.
12 Defendants argue that they achieved Singleton complilmce in every school at some point in time over the course of this case ; therefore, it has been relieved of its constitutional burden. It would be ludicrous for this court to accept such an argument. Acceptance of compliance with Singleton under that argument, would permit situations such as a school system having 20% of its schools in compliance with Singleton during a particular year would achieve Singleton compliance even though the other substantially deviated from the system-wide ratio, as long as the other 80% eventually complied with Singleton.

55 a
throughout all leve-ls of the administrative structure of the DCSS.
Plaintiffs' ooncern iabout the assignment of principals is that principals are assigned in a manner such that the number of black principals at a school is a strong indication of the b1ack student population of that school. The court must agree.
This court does not consider the evidence of principal assignments in a vacuum, however. In United States v. South Pm·k Independent School District, 566 F.2d 1221 (5th Cir. 1978), cert. denied, 454 U.S. 1143 (1982), the court briefly considered the allegation of the plaintiff that principals were assigned based upon the race of the individuals involved. The court stated: "We are not ready to hold that each particular level of employment in a school system must have a particular racial composition. At the same time, however, we also recognize that in a community individuals might attach a certain degree of importance to the position of principal, and that it would be unconstitutional for a school district to assign principalships based upon the race of the indjviduals involved." !d. at 1226.
In Singleton, the court did not differentiate between teachers or principals, but required that all "staff who work directly with the children at school shall be so assigned that in no case will the racial composition t>f a staff indicate that a school is intended for Negro stud,~nts or white students." Singleton, 419 F.2d at 1218. 'rhe principals and assistant principals are only two of the members of a schools staff that interact on a daily basis with the children. Singleton requires that the staff be considered as a whole. When the evidence concerning both teacher and principal deviations are considered, the need for further action by the defendants to comply with Singleton becomes obvious.
Construing the evidence presented by the parties concerning the assignments of principalships, the court finds

56 a
the majority black schools have a high percentage of black principals assigned to them, while the majority white schools have a deficient percentage of black principals assigned to them. Plaintiffs' evidence focuses on the 1985-86 school year. There was no evidence presented
that the 1985-86 school year was an anomaly. Plaintiffs
showed that during the 1985-86 school year, five of the 22 high school principals, and 18 of the 74 elementary school principals were black. Of those black principals, four of the five black high school principals were assigned to schools that have student populations of over 95% black. Only one of the five high schools with black student populations over 90% had a white principal.JS Thirteen of the 18 black elementary school in·incipals were assigned to schools at which the black student po}Julation exceeded 90 j'o bhck. Conversely, onlv four of the elementary schools with black student populatior.s over 90% had a white principaL (Plaintiffs exhibit 3)
There is also an obvious racial skew in the total num·· ber of administrators (principals, assistant principals, lead teachers I at the majority black schools. The court will first examine the elementary schools during the 1985-86 school year. At this time the system-wide average of black administrators at the elementary school
level was 30.1 9'o. In the 43 majority white schools the
number of black administrators were less that 10%. In the 11 schools in which the black student population ranged between 41% and 80%, the number of black administrators increased to approximately 38.5%. In the 20 schools in which the black student population was greater than 81%, the percentage of black administrators increased to 60 l)h.
At the high school level, the racial skew of administrators was equally as startling. The system-wide average
ta Gyuri Nemeth, who testified during the July, 1987 hearing, is a white principal at majority black Walker High School (now McNair Senior High).

57 a
of black administrators at the high school level was 27.2%. In the 12 schools that were majority white, the percentage of black administrators was only approximately 22 ro. In the schools that had black student popu-
lations ranging from 41 ~~.? w 80%, the percentage of
black administrators was roughly 45%. In the majority black schools with black student populations of over 81%, the percentage of black administrators increased to 63.2ro.
The court also analyzea an exhibit presented by defendants which depicted the race and sex of all in-school administrators for the 1987 school year. At the elementary school level, 27 out of the 77 elementary schools had black principals. In the 27 schools in which the principal was black, 605~ of the in~school administrators we,_.e black. At the high school level, only four of the twentynine high schools had black principals. In those four schools, 75% of the in-school administrators were black.
Such obvious deviations between percentage of black administrators in the majority black schools cannot satisfy the Singleton requireme£tts. Again the court rejects any contention by the defendants that if a particular school met the Sin.gleton requirement at one time, the DCSS is relieved of the Singleton requirement as to that school. At a minimum. Singleton contemplates an initial reassignment of staff that will achieve a system-wide balance of minority staff and then a neutral maintenance program afterwards.
Defendants complain that this court has not given the DCSS guidan~ on what aceeptable deviation from the system-wide average would comply with the Singleton requirement of "substantial compliance.H This court has endeavored to be flexible by not setting a certain percentage deviation that will satisfy Singleton in this district. The court, however, will comply with the defendants request for guidance by establishing an iron-dad rule. This court will adopt as this rule the previous guid-

58 a
ance established by Judge Edenfield in the Novembe:r 3, 1976 order. ·when the school staffs (faculty and administrators) of all schools vary from the system-wide minor· ity staff average by no more than 15%, the DCSS will have obtained Rubstantially compliance with Singleton. Any school that deviates by more than 15% will presumptively be a violation of Singleton. Absent extenuating circumstances justifying deviations of more than 15?"c, the court will not find Singleton compliance until all school staffs fall within the established parameters. At trial, the defendants did not offer an explanation for the existing substantial deviations.
This court will maintain jurisdiction over this case at least through September, 1988. Before that time period ends, the DCSS will have the option of implementing a plan that will achieve compliance with Singleton and submitting a report showing that they have so complied to the court. Due to the late date of this order, if compliance with Singleton within that short period of time will be unduly burdensome on the DCSS, the DCSS may file a report with this court in September, 1989 showing that it has achieved compliance with Singleton. It would appear that such compliance will necessitate reassignment of both teachers and principals.
While this court shares the concern of other courts of requiring strict mathematical ratios, as the former Fifth Circuit recognized in DeSoto, such ratios are necessary "as a starting point in el~minating the vestiges of segregation in ... faculty assignment. ... Moreover, Singleton does not require that such ratios be maintained permanently; rather, it 'contemplates an initial reassignment so that the racial ratio at eve:ry school reflects the system-wide ratio, followed by the utilization of a nondiscriminatory hiring, firing, and assignment policy thereaft~r.'" DeSoto, 574 F.2d at 819 (qu~1ting United States v. Wilcox County Board of Education, 494 F.2d 575, 580 (5th Cir.), cert. denied, 419 U.S. 1031 (1974) ). Achiev-

G9a
ing compliance with Singleton should not be dit!icult for the DCSS in the area of faculty assignment. In their brief, the defendants argue that any "schooPs faculty could be brought into line with a narrowly construed racial balance standard by moving, at most, two or three teachc:r~." (Defendants' post trial brief at 50)
PHYSICAL FACILITIES, TRANSPORTATION, & EXTRA-CURRICULAR ACTIVITIES
The defendants achievement of unitary status in the areas of physical facilities, transportation and extracurricular activities were not contested by the plaintiffs. The court agrees with plaintiffs' concession that the defendants have fulfilled their constitutional obligations in these areas and that no further relief is required.
Although the parties have stipulated that some clubs meet at certain receiving schools of the M-to-M program before the M-to-M buses arrive in the morning, plaintiffs do not contend that further relief is needed in the areas of transportation and extracurricular activities. It appears that this problem was brought to the courts attention to alert the court that the DCSS does not have a perfect record in the ~areoaf transportation and extracurricular activities. ansportation must be provided for M-to-M students. The a ivity buses provided by the DCSS are more than adequate to pro\ide all students with an opportunity to participate in extracurricular activities. The time for the club meetings are set by the students not the DCSS. The DCSS provides acthity bu2-es late into the night, anrl will provide bus sen'ice for only one student, if necessary. The court finds that the DCSS provides opportunities to all students, including M-to-M students, to participate in a wide range of extracurricular activities without regard to race.
The plaintiffs also have some concern about overcrowding in the southern schools. Plaintiffs claim that portable classrooms are used more in the majority black schools

60a
than the majority white schools. All evidence at the hearing on this motion, indicated that the DCSS has a race-neutl·al policy with regard to the use of portable classrooms. The DCSS is constantly attempting to deal with the growing population of southern DeKalb County by building new schools and adding permanent additions to existing schools.
QUALITY OF EDUCATION
The court considers this area of dispute to be of utmost importance. The crux of the Supreme Court's decision in Brown was that the maintenance of separate but equal facilities for black students did not assure that black children obtained a quality education. Although quality of education is not one of the ~ix classic areas of inquiry in school desegregation cases 14, the defendants did not protest litigation of this area. The defendants acknowledge that a school system that is not fulfilling its obligation of providing quality education to all school children should not be entitled to unitary status.
The parties contest who shvuld bear the burden of proof on this issue. As the defendants concede that this area of inquiry is important to a determination of whether the DCSS has achieved unitary status, the court finds that defendants should properly bear the burden of showing that all students in the DCSS are receiving a quality education.
Plaintiffs concede that the DCSS is a wonderfully innovative system.15 (Transcript Vol. I at 101) Plaintiffs
u Plaintiffs contend that quality of education can be considered a part of the facilities area, one of the six areas specified in G1·een as a proper area of inquiry for the purposes of deciding if a school system has obtained unitary status. The court finds that the labelling of the di!;'pute concerning quality of education is irrelevant.
u; The court was impressed by the number of innovative programs implemented by the DCSS. E·-amples of these innovative programs include: (1) effective schools program (a program initi-

6la
contend, however, that defendants have racially skewed the provision of certain education resources, such that black students are not given an equal educational oppor-
tunity in the ness. In particular, plaintiffs argue these
tangible factors have been skewed: (1) teachers with advqnced degr~es; (2) more experienced teachers; (3) per pupil expenditure; (4) number of library books per student; and (5) that there is higher teacher turnover in the black schools. Plaintiffs seemingly argue that a prima facie showing that these resources are skewed is
sufficient for the court to find that the ness has not
achieved unitary status. Defendants, however, focus on the effect such factors have had on educational gains by black students. It is the defendants contention that the bla..:!k students in the DCSS have made greater advances educationally than white students. The parties difference; of opinion on what factors influence quality of education t make it difficult for the court to compare the voluminous data presented on this issue. In effect, the parties com-
ated in 12 majority black schools to focllil the resources of the school system on schools that will benefit most significantly) ; (2) parenting programs (providing parents with techniques and metho:i.ologies to help their children achieve in school); (3) lead teacher !or student services (lead teachers work with individual students to improve their self-concept; they work with teachers to develop alternative strategies for working with children of various backgrounds; and th€y work with parents to help them facilitat.e the education of their children) ; (4) human relation supplements (a program instigated in the receiving schools of theM-to-M program, the goal of the program is to improve race relations); (5) homework helpline (pro· ~des immediate help for students and parents who are encountering difficulties in the completion of homework) ; (6) adopt-a-school (designed to use the resources of businesses to enhance education by encouraging companies to adopt a school and become its benefactor); (7) staff development programs; (8) latchkey program (in conjunction with the local YMCA, the DCSS provides a program for parents who cannot afford private day care services); (9) remedial education programs (e.g., a partially statefunded program for students in grades 2-5, who are half a year or more below grade leve! in reading) ; and (10) the writing-to-read
program.

62a
pare apples and oranges and ask this court to decide which is better.
Both the allocation of educational resources and the achievement of students are interrelated issues that must be examined to determine whether black students are receiving the same quality education as white students. The court will first examine the evidence presented by the defendants concerning achievement of black students in the DCSS.
The focus of the DCSS evidence on this issue was that it offered the same educational opportunities to all students. The DCSS presented extensive evideJilce about the uniformity of its curriculum in all schools. The DCSS requires teachers to p1·epare lesson pla::1s that conform to the curriculum. (Transcript Vol. VI at 85-91) Defendants' expert Dr. Walberg spent a considerable amount of time in the DCSS examining the curriculum and the conformity of the various schools to the curriculum. Based upon his examination of the DCSS, Dr. Walberg testified that "the District provides an exceptionally effective edueational program. It provides a uniform curriculum, ar..d it provides equality of educational opportunity in the schools. The District . . . provides continuous progress mastery learning. I think this is an exceptionally effective program. They do this by aligning the curriculum and the tests, by concentrating very heavily on academic learning. They use curriculum guides. They have in my opinion very careful lesson plans and extraordinary attention to the match of the total district curriculum to what the lesson plans are in fact. In mo~t cases, although there are some exceptions to this, the teachers actually have those lesson plans in their classes and they are teaching them pretty much on task." (Transcript Vol. IV at 91) 111
16 Plaintiffs attempted to prove that the curriculum of the predominately black schools was not the ::.am~ as the predominately white schools by presenting the evidence of a M-to-M student,

63a
The court found particularly significant the evidence that black students who have been in the DCSS for two years achieve gi"eater gains than white students on the Iowa Tests of Basic Skills (ITBS) . The DCSS compared student.~ who entered the DCSS in 1985 and took the ITBS for the first time in the 1985 school year then took the ITBS when it was administered in 1987. Although whites scored higher than blacks on the test, the percentage gain of black students was significantly greater than white students. The students who were selected for the comparison were 546 white students and 778 black students. In 1985, the average score for white students was 73.3%, while their score increased to 80.5%in 1987, a difference of 7.2%. For black students, the average score for the 1985 exam was 40.8% and their score increased to an average score of 51.2% in 1987, a difference of 10.4%. The fact that blacks score lower than whites cannot be attributed in any way to the DCSS. These students ail entered the DCSS in 1985. The black students entering the schools system scored lower than entering white students. The progress of the black students and the white students can be attributed to the DCSS. It is sig"lificant to this court that black students. many of whom attend majority black schools made great3r gains ou this test than the white students, many of whom attended majority white xhools. (Defendants' exhibit 114).
Norma D~nise Jones, who testified that another transfer student did very poorly while he attended Lakeside High School through the M-to-M program, but when he transferred back to his home school he did very well. Defendflnts successfully rebutted this testimony with the t{:stimony of· Mehin Johnson, the assistant superintendent for area one (an area in southern DeKalb County). Mr. Johnson testified that the tran..<~Cript of the student in question showed that the students grades were substantially the sam~ at both the M·to-M receiving school and the students' home school. (Transcript Vol. XI at 25-27)

64a
The latest results from the ITBS that were available before the hearing establish that both black and white students who have been totally educated in the DCSS score higher on the ITBS than students who entered the DCSS in the year of the test. Again black students score lower on the ITBS as a group than white students. (Defendants' exhibit 115)
Black students in the DCSS also are more successful than other black students nationally on the Scholastic Aptitude Test (a college entrance examination test), while white students in the DCSS scored below the national average. The information on the SAT presented to the court was for the 1984-85 school year. (Defendants' exhibit 119)
The evidence presented to this court shows that the socio-economic status of a child affects his potential for academic success to a much greater extent than racial exposure. In fact, much of the evidence presented to this court showed that racial exposure did not effect a child's academic success. There was considerable testimony on that subject. (testimony of Walberg in unnumbered volume of the transcript at 40-62, and testimony of Dr. Rossell in Vol. XI at 99-100) The court found the evidence presented in this regard to be compelling.
Several of the defendants' exhibits illustrated this point as well. Defendants' exhibit 137 shows that black children entering kindergarten score much lower on the California Achie;.rement Test than white students. Of course, only the child's home environment, including socioecor1omic factors, could bear on a child's achievement at that point in a child's academic development.
Both black and white students who are participants in the free and reduced lunch progr~m score lower on the ITBS than students who are not on the free and reduced Junch program. (Defendants' exhibit 117) The type dwelling in which a child lives is predictive of scores on

65a
the ITBS. Children living in single family dwelling£ score highest, followed by children who live in condominiums, duplexes, apartments, mobile homes, while children who live in institutions have the lowest scores. The exhib~t further showed that a greater percentage of white students than black students live in single family dwellings and condominiums. (Defendants' exhibit 112)
Defendants' exhibit 110 shows that students who come from professional homes (that is, a home in which at least one parent is a professional) score highest on the ITBS. These students are followed by children from twoparent homes. The lowest achievers are from singleparent households. A much higher percentage of black children cone from single-parent homes than white children.
The court will now consider the evidence presented by plaintiffs that certain of the resources of the DCSS are racially skewed. Pla~ntiffs presented evidence on these school treatment characteristics: (1) per pupil expenditure, (2) library books per student, (3) teacher experience; (4) teacher education; (5) teacher turnover; and (6) student retentions. Plaintiffs divided the schooJs into three different types for purposes of showing a comparison of the resources: (1) type I schools--f\chools that have been majority white over the last decade; 2) type II schools--schools that have undergone a racial transition from majority white to majority black over the last decade; and (3) type III schools-sehools that have been majority black over the last decade. Plaintiffs then analyzed the data to determine if the differences were statistically significant. Under plaintiffs analysis, differences were considered statistically sirtificant when there was less than a 5% probability that the pattern of data is happening by chance alone. (Tran~cript Vol. VIII at 12)
The plaintiffs presented the following data on teacher experience:

66a

· Average Number of Years Teaching

ELEMENTARY
SCHOOLS
Type! TypeU Type III

Fall 1984
9.55 6.45 6.24

Fall1985
10.22 6.90 6.46

Falll986
9.79 6.36 5.19

HIGH SCHOOLS

Type I

7.99

8.74

8.90

Type II

6.83

7.14

7.08

Type III

5.34

5.68

4.91

(Plaintiffs exhibits 97(a), (b) and c; 98(a), (b) and
(c) )

Using plaintiffs analysis, at the elementary level during both 1984 and 1985, all three types were statistically significant. In 1386, Type I differed significantly from Types II and III. At the high school level, Type I differed significantly from Type III for all three years.

facWu~itthy

regard during

to graduate the 1986-87

degrees held school year,

by the DCSS plaintiffs pre-

sented the following evidence:

Percentage of Teachers Having Graduate Degrees

ELEMENTARY SCHOOLS HIGH SCHOOLS

Type I
Type II Type III

75.76
61.84 52.63

76.05
64.34 64.32

JPlaintiffs' exhibit 86 at 13-14, exhibits 99 and 100) At the elementary level, all three types are statistically significant from each other. At the high school level, Type I differed significantly from Types II and III.

The court is, of course, concerned by the differences between teacher experience and t~achers with graduate degreeR in the different "type" schools. The defendants
concede that there are differences and both attempt to explain the differences away and argue that the differences should not matter because they do not affect a studenfs potential for academic success. While the court

67a
does not find convim.'ing the plaintitts evidence that such skews atfect students' learning potential, the court finds that any school system should consciously make ettorts to assure that resources are distributed equally to all students. This includes insuring that all students are taught by well-educated, experienced teachers. A previous dual system has an additional burden of assuring that any school predominately attended by minority students is given the same, if net superior, resources. All evidence submitted by the defendants shows that, due to socio-economic factors, a black student's potential for academic success is less than a white student's potential; thus, making their need for "resources" greater.
Whether a racial skew of resources affects a child's learning potential is irrelevant to this court. Even before the Supreme Court's decision in Brown, the law required that minority students be given the same .resources as white students. Accordingly, when the defendants revise their assignments of teachers and principals to meet the requirements of Singleton, they shall make the assignments in a manner that will equalize the experience and education of faculty and staff among the different "types" of schools.
The plaintiffs presented evidence and the defendants concede that the degree of teacher turnover is higher in the Type II and III schools than in the Type I schools. (Plaintiffs exhibits 101 and 102) Defendants presented evidence that steps are being taken to control the teacher
turnover in the majority black schools. The ness has
instigated a program in the majority black Columbia, Gordon, and Walker High Schools that requires teachers to teach only fom· classes per day as opposed to five. This program leo to a tremendous decrease in the turnover of teachers at these schools. (Transcript Vol. I at J77-78, Vol. Vat 183).
The court applauds the efforts of the DCSS to maintain its experienced teachers. The DCSS, like any other

68a
school system, cannot control how many of its smployees chose to leave the system to teach elsewhere or pursue other opportun.ities. For that reason, the court will not
impose an obligation on the ness to slow teacher turn-
over in its majority black schools. The DCSS is obviously interested in this objective and will take all necessary steps without this court's intervention.
Plaintiffs also contend that the number of books per pupil in the DCSS is racially skewed among the "types" of schools. While there is a difference between the number of books in the "types" of schools, the court found the defendants explanation for this difference satisfactory. Several factors effect the number of library books in a particular school's library: (1) how often weeding
(the removal of out-dated or duplicative material) oc-
curs ; (2 ) the shift of enrollment of a school (in the northern "type I" schools, population has decreased, while the southern "type II and type III" schools populations have increased); (3) how media resources are allocated by the media specialists of the different schools; and (4) the number of "lost,; books at a particular school.
Defendants presented the testimony of Frank C. Winstead, the Director of Educational Media for the DCSS, and Helen Ruffin, the Library Media Specialist at Sky Haven Elementary school, a majority black elementary school. (Transcript Vol. X at 175-200) The testimony of these witnesses convinced the court that any skew of library books is a result of the four factors listed above and was not the :result of purposeful conduct by the defendants. The court also does not find that the number 1of books in a library is indicative of the quality of the media materials available at the schools. There was insufficient evidence presented to this court to convince it that black students are in any way handicapped academically by the number of books per pupil in their school libraries.
Plaintiffs presented evidence that black students are not as academically successful on the California Achieve-

69a
ment Test, have higher elementary failure rates, ~nd are more often retained (not promoted) than white students. The defendants evidence showed the same results. Plaintiffs argue that their evidence proves that children assigned to majority black schools are denied equal educational opportunity. The court cannot accept this contention.
The parties do not dispute that black students, both in the DCSS and elsewh0re, are not as successful generally in academics as white students. As the court discussed above, the court finds that socio-economic differences between the two groups influences academic success. The DCSS would not be acting in the best interest of black students by promoting them to a highe:r. grade, until they have achieved a level of academic success that justifies the promotion.
Plaintiffs' arguments in this regard seem to hedge on the language of the Jtme, 1969 order that required the DCSS to implement remedial educational programs for students attending or who have previously attended segregated schools to overcome past inadequacies in their education. (Order of June, 1969 at 11). It is undi':!puted that at the time of the unitary heo.aring, there were
no children attending the ness who formerly attended
a de jure black sehool before the implementation of the 1969 order. That order referred only to de jure segregated schools.
While there will always be something more that the DCSS can do to improve the chances for black students to achieve academic success, the court cannot find~ as
plaintiffs urge, that the ness has been negligent in its
duties to implement programs to assist black students.
The ness is a very innovative school system. It has
implemented a number of programs to enrich the lives and enhance the academic potential of all students, both blacks and whites. Many remedial programs are targeted in the majority black schools. Programs have been implemented to involve the parents and offset negative

70a
socio-economic factors.17 If the DCSS has failed in any way in this regard, it is not because the schooi system has been negligtent in its duties. Indeed, Dr. Edward • Bouie, Sr., Associate Superintendent for Program Development and Staff Assessment, testified that t:he DCSS has implemented a total management system designed to focus on the achievement of ·children. He further testified that Dr. Freeman, the Superintendent of the DCSS. has instructed him that any program that can be found
to improve student achievement, should be researched.
piloted, and placed in the DCSS. (Transcript Vol. III at 41) The DCSS spends in excess of $12,500,000 of exclusively local funds on supplementary instructional personr:al, such as contingency teachers, instructional lead teachers, le.ad teachers for student services, and remedial reading specialists. (Transcript Vol. III at 183-88) The court does not find that further court supervision is nec-
essary to insur~ that the ness implements remedial pro-
grams to facilitate the potential for academic success by black students.
The last resource differential that the plaintiffs brought to this court's attention is that per pupil expenditures are higher in the Type I schools than in the Type II and III schools. This differential is of great concern to the court. In the 1984-85 school year, the expenditure per student in type I schools was $2,833, type II schools was $2,540, and type III schools was $2,492. Cert.ain factors such as- lower enrollment in the type I schools explains some of the difference in expenditures. "While there was no compelling evidence presented that the amount of money expended per student results in a greater potential for academic achievement, this court is puzzled by the DCSS' practice of allocating what appears to be a larger percentage of its financial resources in the type I schools, when all evidence indicates that the needs of the type II and III schools are more significant. The
ness shall endeavor to equalize spending among the
three types of schools.
11 See footnote 15, supra.

71a
The defendants argue that this court cannot properly order relief in the quality of education area because the prior constitutional violation did not extend into this area. The court finds this contention to be without merit. A district court properly has broad discretion in desegregation cases to order relief that will facilitate the speedy eradication of all vestiges of the former dual system. Improving the quality of education for all children, especially black children, is the underlying purpose of all desegregation cases.
SUMMARY
The DCSS is an innovative school system that has travelled the often long road to unitary status almost to its end. While much of the court's order was spent on prob-
lems that still exist in the ness, the court has continuously been impressed by the successes of the ness and
its dedication to providing a quality education for all students within that system. As Judge Edenfield recognized in his order of October 6, 1977 in this case: "Quality educational systems are a fragile blessing, as many metropolitan areas have learned to their sorrow. When one is found it should not be harassed out of existence to satisfy fractional technicalities."
The DCSS has eliminated most of the vestiges of the former dua1 system. The court finds that the DCSS is a unitary system with regard to the areas of student assignments, transportation, physical facilities, ~nd extracurneular activities. Before the court will declare that the DCSS has obtained unitary status, however, certain changes must be made. The DCSS shall have the option of either implementing a plan by September, 1988, or
implementing such a plan by September, 1989, to achieve
Singleton compliance with regard to both teacher and
principal assignments. The ness shall file a report with
this court detailing the plan. This plan should also equalize the number of teachers with advanced degrees and more experienced teachers · among the types of schools.

72a
The ness shall attempt to equalize per pupil expenditures among the types of schools during the 1988-89 school year. Within two months of the end of the 198889 school year, the ness shall file a report with this court showing per pupil expenditures among the various schools. For purposes of this report, the schools shall be grouped in the same manner as plaintiffs grouped them for purposes of the hearing held on this motion.
In 1976, this court established a Biyracial Committee to give guidance to the neKalb County School Board regarding certain decisions. The court finds based upon the evidence presented during the hearing that there is no longer a need for the committee. Not only is there now a black school board member, but blacks are well represented throughout the administrative levels of the DCSS, including the position of assistant superintendant. Accordingly,- the DeKalb County Bi-racial Committee is hereby abolished. The DeKalb County School Board, of course, may establish its own bi-racial committee.
The court denies the motion of defendants to dismiss. While the court is satisfied that the DCSS is a unitary system with regard to the areas of student assignments, transportation, physical facilities and extra-curricular activities and will order no further relief in those areas, the defendants must cop1;ply with the dictates above before this court will declare that the DCSS has obtained unitary status. The court grants in part the motion of plaintiff for supplemental relief and denies the motion to require the defendants to file a junior high plan.
IT· IS SO ORDERED this 30th day of June, 1988.
/s/ William C. O'Kelley WILLIAM C. O'KELLEY Unitef! States District Judge

73a
APPENDIX C
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Civil Action No. 11946
WILLIE EUGENE PITTS, et al.
vs.
JIM CHERRY, Superintendent of Schools, DeKalb County,
Georgia; et al.
ORDER AND JUDGMENT [Filed June 12, 1969]
ThiA case began as an in-depth undertaking to desegregate the public schools of DeKalb County, including students, faculties, and school activities. Since aome 75,000 students are involved, occupying 77 elementary schools, 20 high schools, and nine special schools, a number of problems were presented. Happily for our task however, at the very time the action was filed and since that time the DeKalb ·County Board of Education was and has been working with the Department of Health, Education and Welfare to come up with what was to be a final and "terminal" plan of desegregation, which plan was to go into effect not later than the 1969-70 school year and which was to cover all aspects of the County's desegregation problems. After the suit was filed a preliminary

74a
hearing was held on October 11, 1968, at which time the plan proposed by the School Board had been given general approval by HEW, subject to one exception to which reference will presently be made. A second hearing was held on April 9, 1969, by which time the proposed plan was substantially complete, and at that time counsel for all parties indicated their general approval of the plan except as it related to the Robert Shaw Elementary School.
Since the overall plan appears to be satisfactory to the School Board, to HEW, and to the plaintiffs, it would serve no useful purpose to catalog its details here. The court therefore addresses itself to the one problem remaining open, viz. : the disposition to be made of the Shaw school, the plan proposed for that school being unsatisfactory both to HEW and to plaintiffs.
The school population of DeKalb County is roughly 94.4% white and 5.6ro Negro, and at the heart of the entire problem were six schools, the populations of which were all predominantly Negro.1 In brief, what the Board proposed with respect to all of these schools except Shaw, was to close them entirely and distribute their students among other schools in their respective neighborhoods. The plants of the closed schools would then be converted into special schools for advanced and retarded children, etc., on an integrated basis. With respect to the Shaw school, however, the Board proposed to retain it in operation, despite its predominantly Negro population. In support of this proposal the B'Jard contended that housing and apartment developments in the neighborhood showed some promise of bringing more whites into the school area by September, 1969. They also promised to end a previously established policy permitting whites to
1 These schools were Bruce Street, Linwood, Victoria Simmons, County Line,- and Robert Shaw, all of which were elementary schools, and Hamilton High School.

75a
transfer out of the Shaw attendance area, so that between these two proposals it was hoped that the Shaw situation would remedy itself at or during the 1969-70 school year. It was also pointed out in support of this proposal that the school had a fine physical plant, an excellent faculty, a good PTA and very good community relations. Both HEW and the plaintiffs questioned this proposal as :respects Shaw.
At subsequent hearings. held on April 30, 1969, and on May 28, 1969, evidence was takeli as to the best disposition to be made of the Shaw school. Again all parties were in substantial agreement. Witnesses for the School Board admitted, for example, that their hopes for a racially balanced school population in the Shaw area were greatly optimistic, if not illusory. No single witness was of the opinion that the proposal advanced by the Board would or could put the Shaw [-!Chool in compliance by the beginning of the 1969-70 school year. All parties, including counsel for plaintiffs and witnesses from the School Board and from HEW, did agree, however, that the Shaw school could be J>Ut in compliance in either one of two ways: ("t) by aboli.shing the school and redistributing its population, as was being done with respect to the other five predominantly Negro schools, or (2) by either redrawing attendance lines or "pairing" Shaw with some other school so as to encompass larger white residential areas within its attendance zone. No one disputed or now disputes that either one of these proposals would bring Shaw into compliance.
The School Board still asks that it be allowed to retain Shaw in the hope that the population would balance itself, either at the beginning of or during the 1969-70 school year. The evidence, however, simply does not support this conclusion, and the court finds that the proposal by the Board to let the school continue on this basis is unsatisfactory. The only question ')>resented, therefore, is which of the two workable alternatives shaH be adopted.

76a
Since either, under the evidence, will get the job done, the court concludes that as between closing the school on the one hand or redrawing its attendance lines or pairing it with another school on the other, the court should defer to the preference of the school authorities. HEW officials seem to feel that a redrawing of school lines would be the better solution. They agree, however, that under these circumstances the views of the School Board should be respected, and the Board prefers to close the school. In making this choice the Board contends, and the court agrees, that a redrawing of school lines in this area or a pairing of Shaw school with some other school, while bringing about desegregation on a temporary basis, would almost certainly lead to resegregation within one to two years by reason of the white population moving out of the area. The court concludes, therefore, that the only solution offering any promise of permanency is to close the Shaw school as the Board suggests and distribute its pupils a~ong neighboring schools, and an order to this effect will be entered.
There may be other details in the overall DeKalb County plan which will require further attention of the court, but as of the moment, this concludes the only issue of any consequence now to be decided.
JUDGMENT
It is therefore CONSIDERED1 ORDERED, ADJUDGED, and DECREED -that the defendants, their agents, officers, employees, successors, and all those in active concert and participation with them, be and they are hereby permanently enjoined from discriminating on the basis of race or color in the operation of the DeKalb County school system. As set out more particularly hereinafter, they shall take affirmative action to disestablish all school segregation and to eliminate the effects of the dual school system.

77a
I. SPEED OF DESEGREGATION
Commencing with the 1969-70 school year, in accordance with this decree, all grades, including kindergarten grades, shall be desegregated and pupils assigned to schools in these grades without regard to race or color.
II. PUPIL ASSIGNMENT
A. Zones. All students in the system shall attend classes a~ schools located within the zone where they reside. Said zones shall be drawn so as to disestablish the dual school system. For the 1969-70 school year, the zones in effect shall be those- previously approved by the United States Department of Health, Education and Welfare. At all grades in schools within each zone, students will be assigned to home rooms and classes without regard to race.
B. School Closings. The following schools will be closed during the 1969-70 school year and thereafter until further order of the court: Robert Shaw elementary; Victoria Simmons elementary; County Line elementary; Lynwood Park elementary; Bruce Street elementary; and Hamilton High School. Students attending the schools to be closed will be placed in new attendance zones to be drawn without regard to race. The zones for all of the closed schools except Robert Shaw will be those previously filed with the court. The zone for Robert Shaw will be established no later than July 15, 1969, and submitted to the court. Defendants shall arrange for the conspicuous publication of a notice describing the new zones to be established in the newspaper· post generally circulated in the community. Parents of children presently attending the schools to be closed shall be notified by letter of the new zone in which they reside. Such letters shall issue no later than July 20, 1969. Pul'licaton as a legal notice will not be sufficient. Copies of the notice must also be given to all radio and television sta-

78a
tions located in the community. Copies of this decree shall be posted in each school in the school system and at the office of the Superintendent of Schools.
C. Transfers. No students will be permitted to transfer from schools within their attendance zones to other zones. Exceptions may be granted for non-racial reasons in the case of overcrowding, in the case of students who are physically handicapped and desire to attend a school designed for their special needs, and for students requiring a course of study not offered at the school serving their zone. However, if more than 30 students request transfer outside their zones to pursue a course of study, such transfers shall not be permitted; rather, a teacher or teachers shall be supplied within the zone to teach said courses.
U. Overcrowding. In case of overcrowding at any school, preference shall be given on the basis of proximity of the school to the homes of the students without regard to race or color. Standards for determining overcrowding shall be applied uniformly throughout the system.
III. CONSTRUCTION
To the extent consistent with the proper operation of the system, the County Board will1 in locating and designing new schools, in expanding existing facilities, and in consolidating schools, do so with the objective of eradicating segregation and perpetuating desegregation.
IV. FACULTY AND STAFF ASSIGNMENTS
A. Faculty Employment. Race or color shall not be a factor in the hiring, assignment, reassignment, promotion, demotion, or dismissal of teachers and other professional staff members, including student teachers, except that race may be taken into account for the purpose of counteracting or correcting the effect of the segregated assignment of faculty and staff in the old dual

79a
system. Teachers, principals, and staff members shall be assigned to schools so that the faculty and staff is not composed exclusively of members of one race. Wherever possible, teachers shall ~e assigned so that more than one teacher of the minority race (white or Negro) shall be on the desegregated. faculty. The County Board will con·· tinue positive and affirmative steps to accomplish the desegregation of its school faculties and to achieve substantial desegregation of faculties in its schools for the 1969-70 school year notwithstanding teacher contracts for 1969-70 may have already been signed and approved. The tenure of teachers in the system shall not be used- as an excuse for failure to comply with this provision. The County Board shall establish as an objective that the pattern of teacher assignment to any particular school not be identifiable as tailored for a heavy concentration of either Negro or white pupils in school.
B. Dismis8al8. Teacher and other professional staff members may not be discriminatorily assigned, dismissed, demoted, or passed over for retention, promotion, or rehiring, on the ground of race or color. In any instance where one or more teachers or other professional staff members are to be displaced as a result of desegregation, no staff _vacancy in the school system shall be filled through recruitment from outside the system unless no such displaced staff member is qualified to fill the vacancy. If, as a result of desegregation, there is to be a reduction in the total professional staff of the school system, the qualifications of all staff' members in the system shall be evahated in selecting the staff member to be released without consideration of race or color. A report containing any such proposed dismissals, and the reasons therefor, shall be filed with the Clerk of the court, serving copies upon opposing counsel, within five days after such dismissal, demotion, etc., as proposed.

BOa
C. Past Asr:,ignments. The County Board shall take steps to assign and reassign teachers and other professional staff members to eliminate the effects of the dual school sy::;tem.
V. REPORTS
A. On June 10 of each year, beginning in 1970, de~
fendants will submit a report to the court and serve
copies on opposing counsel, showing the number of teachers by schools, grade (where appropriate)\, and race they anticipate will be employed for the fall quarter or semester. Within one week after the day classes begin for the fall quarter or semester in 1969 and each succeeding year defendants-will submit a report to the court al'ld serve a copy on opposing counsel, showing the number of teach· ers actually working at each school by grade (where appropriate) and race.
B. On the same dates set forth in A. above, reports will be submitted to the court, and a copy served on opposing counsel, showing the number of students by school, grade, home room, and race expected (in June report) and actually enrolled (in fall report) at the schools in DeKalb County.
C. Within one week after the opening of each school year, defendants shall submit a report to the court and serve cppies on opposing counsel, showing the number of faculty vacancies, by school, that have occurred or been filled by defendants sin~e the order of this court or the latest report submitted pursuant to this subparagraph. This report shall state the race of the teacher employed to fill each such vacancy and indicate whether such teacher is newly employed or was transferred from within the system. The tabulation of the number of transfers within the system shall indicate the s~hools from which and to which the transfers were made. The report shall also set forth the number of faculty members of each race assigned ~ch school for the current year.

81a
VI. SERVICES, FACILITIES, ACTIVITIES AND PROGRAMS
No student shall be segregated or discriminated against on account of race or color in any seryice, facility, activity, or program (including transportation, athletics or other extra-curricular activity) that may be conducted or sponsored by the school in which he is enrolled. A student attending school for the first time on a desegregated basis may not be sUbjeet to any disqualification or waiti~riod for participation in activities and programs, including athletics, which might otherwise apply because he is a transfer or newly assigned student except that such transferees shall be subject to long-standing, nonracially based rules of city, county or state athletic associations dealing with the eligibility of transfe1;,red students for athletic contests. All school use or school~ sponsored use -of athletic fields, meeting rooms and all· other school related services, facilities, activities, and programs such as commencement exercises and parent-teacher meetings which are open to persons other than enroiled students, shall be open to all persons without regard to race or color. All special educational programs conducted by the County Board shall be conducted without regard to race or color. Athletic meets and competitions and other activities in which several schools participate shall be arranged so that formerly white and formerly Negro schools participate together.
VII. School E qualiziJ-tion
A. Inferior Schools. In schools heretofore maintained for Negro stu~ents, the defendants shall take prompt steps necessary to provide physical facilities, equipment, courses of instruction, and instructional materials of quality equal to that provided in schools previously maintained fo-r white students. If for any reason it is not feasible to improve sufficiently any school formerly maintained for Negro students, where such improvement would

82a

otherwise be required by. thi.s. paragraph, such school· shall be closed as soon as possible, and students enrolled in the school sha11 be reassigned.
B. Remedial Programs. The defendants shall provide remedial education programs which permit students attending or who have previously attended segregated schools to ovet·come past inadequacies in their education.

VIII. Jurisdiction

This court retains jurisdiction for the purpose of im-

plementing this order.

,

This 12th day of June, 1969.

/s/ Newell Edenfield
NEWELL EDENFIELD
United States District Judge

88&
APPENDIX D IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 88-8687 and 88-8775
WILLIE EUGENE PITTS, et al., Plaintiffs-Appellants, Cros8-A1'1)ellees,
ANN T. JOHNSON, Intervening Plaintiff,
versus
ROBERT FREEMAN, et al., Defendants-Appellees, Cross-Appellants.
Appeal from the United States District Court for the Northern District of Georgia
ON PETITION(S) FOR REHEARING AND SUGGESTION(S) OF REHEARING IN BANC
(Opinion October 11, 1989, 11 Cir., 198 , -F.2d-).
(November 13, 1989)

84a
Before FAY and HAT.CHETT, Circuit Judges, and ALLGOOD*, Senior District Judge. PER CURIAM:
The Petition(s) for Rehearing are DEJ.;::2D and no member of this panel nor other Judge in regular active service on the Court having requested that the Court be polled on rehearing in bane (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5) , the Suggestion(s) of Rehearing In Bane are DENIED. ENTERED FOR THE COURT:
/s/ Joseph W. Hatchett United States Circuit Judge
*Honorable Clarence W. Allgood, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.

 
 IN THE UNITED STATES:DISTRICT COURT FOR THE ~ORTHERN DIS'l'RICT OF GEORGIA
ATLANTA DI"VISION

Civil Action No+ 11946

I

WILLIE EUGENE PITTS, a Minor, ~y hi$. Mother and Next

Friend; MRS. ANNA MAE .. .. . .

ltlAR'l'lN, a

Minor,· his Father ~d

. 'l:tQs~T L.

MARTIN.

All-

Pla,ntijJs,
-vs-

JIM C~!, S~ntendent of ~~, DeKalb County, Qe)qia.; ··pa. JkiiEB H. Hm~l\1~ J~, President,. De-

Kalb. JuJlior Coll•; and DEKALB Gou:NTY BOA.RD OF

EDUCATION,

.

·

De/6'1Ul4lnts.

coMPLAINT

[Filed Jul. 6, 't$68]

1. The j~..t. ion of\tJds .~··· .· • ·Jnvoked JmrB1Jallt

=~=rs!4:··· av+ol~· to the ~ ot Tit}e 28~ ~

·· ·Code ·~eaton

I

42
ordinance, regulation, custom or usage of rights, privileges and immunities secured by the Constitution and laws of the United States or by any act of Congress providing for the equal rights of citizens. The rights here sought to be protected are rights seeured by the Thirteenth Amendment and by the equal protection clauses of the Fourtenth Amendment of the Constitution of the United States, Title 42, United States Code, Sections 1981 and 2000 (d), and Sections 80.4 and 181, et seq., 45 Code of Federal Regulations, as revised.
2. This is a proceeding for a preliminary and permanent injunction enjoining defendants from operating the public school system of DeKalb County~ Georgia on a racially segregated basis.
3. This is a class action brought by the ·adult plaintiffs for the minor plaintiffs on behalf of themselves and on behalf of other adults and minors similarly situated, pursuant to the provisions of Rule 23 (b) (2) of the Federal Rules of Civil Procedure. There are two clasat!s of plaintiffs. Members of the first class are all adult Negro citizens and their minor children, of the State of Georgia, who reside in DeKalb County, Georgia. Members of the
second class are all adult white citizens and their minor
children, residing in DeKalb County, Georgia, who favor integration of their schools. The minors are all eligible to attend the public schools of DeKalb County, Georgia. The members of both classes are all similarly affected by the action of the defendants in maintaining and operat-
ing the public school system of DeKalb County, Georgia
on a racially segregated basis. The .named plaintiffs adequately represent the interests of each of their· classes.
4. The adult plaintiffs in this case are all citizens of the United States and of the State of Georgia, residing ~ in DeKalb County, Georgia. Each adult- plaintiff is the parent of one or more minot children who are eligible to attend the public schools, under the control of the defendants. Each minor plaintiff is likewise a citizen of the

43
United States and of the State of Georgia, residing in DeKalb County, Georgia.
6. All of the named plaintiffs are members of the Negro race with the exception of the adult plaintiffs ALFRED E. STONE, JR., and LOUIS E. BECKER, and the children named of e?.~h. The race of these latter adult and minor plaintiffs is white.
6. The minor plaintiffs attend the following grades and· schools within the system administered by the defendants: WILLIE EUGENE PITTS, eighth grade, Cross Keys High School; VICTOR MARTIN, tenth grade, Cross Keys High School; KELVIN, FELICIA and ALFRED HENDERSON, Rock Chapel elementary school; ORMA and ALFREDIA HENDERSON, Lithonia High School; PATRICIA JOYCE REEVES, fifth grade, Lynwood Park elementary school; ANTHONY REED, ninth grade, Cross Keys High School; CECELIA SEARCY, fifth grade, Jim Cherry Elementary School; NED STONE, eight grade, Druid Hills <-High School; BECKY STONE, Fernbank Elementary SChool; JOY and SANDRA· BECKER, eleventh grade, Druid Hills High School; and BRI:QGET BECKER, seventh grade, Fernbank Elementary Schoot
7. JIM CHERRY, DR. JAMES H. HINSON, JR.,
and .the DEKALB COUNTY BOARD OF EDUCATION, DeKalb County, Georgia, are the defendants named herein. Defendant JIM CHERRY is the Superintendent of the public schools of DeKalb County, Georgia, and is the Chief Administrative Oftlcer thereof. He holds oflice pursuant to the laws of the State of Georgia, subject to
the authority"and control of the DeKalb County Board of
Edueation. He is sued in both his oftlcial and individual
eapacities. DR. JAM:,]S H. HINSON, JR., is the President of DeKalb Junior College, a pubHe sehoolunder the
author.ity and control of the De:Kalb County Board of Education. He is the chief administrative officer thereof, and is sued in both his oftlciaJ and individual capacities.

44

8. The DeKalb County Bt:d of Education exists pur-

suant to the Constitution of ! e State of Georgia, and the

~~~ofs_.=. :es_:_~_-.·.·f_r·g'l·~-~ _·.~_-_ :_·n_.v_t•_!_.~.:~~ 0 F_ 0 e~ablishing, m~initlg function of

.••.·.__-_.!a's·.·.··_a•_. · .•··. ._th_·_ov·ae·tnb·.rd_8·.nmo-. perating the

public SChools systeiil-'Of .D·~b QO~nty, Georgia. The

public schools of. DeK.alb ·ct1anty, ·Georgia. are .•under the

direct supervision and contfol.of the defendants named

herein.

/·

9. Defendant DEKALB. ¢0UNTY ..uv~~.,,..,· ()lf'. )!1DU-

CATIO~ operates '7.7- .. · ' . ·

.. ~~ools,

and aPPioximately § ·. · · Georgia~ There are .
systeJn, 'With 3,754,? 0}!' . .
the Negto race. 'l'be:re

99unty, ·. ·· .· in the
. . ()f

faeulty ·-lnembel'S eJ.BJ)k)Je<f':fl

5.8

pe~..nt,

being .

m~m~!rl~·

(a) J'ive of the ·el$rn~ajli~3'tii(ti~*'ls

atten.a;

.by v ..i"'..,..., .~.,..

of me: ·:•te•ti•"Y· 8Cl9l~IS·.

(d) The faculty at seven of the high schools is all white. The faculty at three high ~ools is all white with
the exeeption of one Negro each. Tbe faculty at six high
schools is all white with the exception of two Negroes each. The- faculty at one high school is all white with the exception of one Negro: The f~culties at the remaining two high schools, which have all Negro attendance, is all Negro and all Negro with the exception of three whites, respectively.
- (e) The principals and administrative officers of each school except the five aU-Negro elementary schools and the two all-Negro high schools are all white.
10. In the years since the decision in BrfYWn v. Boa-rd
of Edlucatiun, oi T&peka, defendants, while acting under
color of the laws of the State of Georgia, have failed to e1fectuate an orderly transition to' a unitary non..racial school syst~m and continue to maintain and operate the public school system of DeKalb County, Georgia on a racially segregated basis. Defendan~ P,re~J1t1Y hold themselveS out as operating the public school aystem of DeKalb County, Georgia, on the basis of a two-part attendance
plan. Zones are drawn for attendance at each elementary.
and high school, but pupils residing ·in any zone may · exercise a "freedom of choice" and transfer to any other school within the system. The attendance· zones in DeKalb
are drawn, or "gerrymandered," in sueh a way as to
ensure. all Negro attendance at five elementary schools and two high schools. White persons living within tbe "Negro" attendance zones have exercised tlieir "freedon1 of choice" to avoid integration, and, as a result of both the zones and the freedom with which minority whites may transfer to schools in which whites are in the majority, the aftirmative duty or ~rden of meaningfully commencing and promptly completil'tg the transition from a dual schqol system is illegally shifted to Negro parents and their children, or to white p~ts and their children who favor integration. The reliance of the defendants
'i)

fl6

i

upon their "gerrymanderedt' zoll~$ 'and on their ~lled

"freedom-of-dloice"

plan.ll'

1 .

~$1't~d

in.

the

11laintet1llnce

of sdlools whi• are cle~ly;' d~~ ~ ,'lple as;w1Ute';9t ·~~gro.

of Indeed·' in
Dished bus

Ptiaas1.t.t·si.Y'Qe...artrast'·1tohn.e.·.·.··..'·:~·~·".·"~·'.'.•. .

·...c.,;.,..~.·'",(.·'.tp.s.i.J.nS..a..v~,ew.<.a:·~..'.a.W.c..:;t.u'e"a'·~·J·,l,,···!~·r:'af.ntls.r--

ferri11g out of. their attend 11~·:~6n~s f()r tlie :P~<Jse

~voiding integration.

· ·· <'

· · ··

·

·

11. Defenda11ts are P"~n:~:t· ":"'~!!•~e·•.ue. engage in the returl)lSfQJlJ~;J~P<t:
schools .which are ele~Ltl:Yr ttt~elltltftl

47
15. The operation of the pubHe! school system of De-
th+ Kalb County, Georgia, on a racial•y segregated basis, as
hereinabove set forth, deprives minor plainti1fs and other Negro or white students s~larly situated of equal educational opportunities in viola~on of #ghts secured to them by the equal protection elapses of the Fourteenth Arile~dmerit of ~e Constitution of ith~ United States and by Tttle 42, Untted States Code, S~tons 1981 and .2000 (d). The denial of equal education~~toppe>rtunities to the minor Negro plaintiffs and oth~rs 'si~larly s!!uated impresses a badge of slavery and ~tude.· upon them in violation of the Thirteenth Amendment of the Constitution of the UJ)ited States. T1te operation of the public
school sy~em ·o:t DeKalb ·county, Georgi~, on a racially
segregated baslf} co~e11tly results in irreparable in-
jury to the, minor planti1fs apd other students similarly
situated. '];"here ·is no complete, adequate or speedy remedy at law to ·compensate the minor plainti1fsfor the injury which they are presently~ sustaining as a result of the operation of the public schoof system of DeKalb County, Georgia, on a racially segrepted basis. .-
WH~REFQRE, Plaintift's pray:
1. That process may issue and be directed to each of the said defendants, herein named, requiring them to appe~r and answer this complaint;
2. That upe>n filing of this cotpplaint, this Court will adv:;u1ce this case on the docket and order a sp6edy hearing thereof aeeording to law;
3. That·· this Court will issue a preliminary injunction pending :final disposition of this ¢ase and a permanent injunction upon the final determination of 'this cause enjoining the defendants from operliting the public school system oi> DeKalb County, Georgia on a racially segregated basis;
4. That the Court will order the defendants to immediately promulgate in every respect and detail the

48
procedures the defendants wi1l follow tn promptly .effec-
of tuate the transition to a. tJn•Uu-y non-rachll school sys-
tem and that, upon the basis ~ai4 plan, the defendants
be ordered to seek continuatiOJ1.o~r·(i~reet ~ltcial'assis­
an,a ance from the Oftlce of Ed~<mtioii oJt tile- United .States
Depa~ent Gf Health, E·du~tiijn Weilare; and
5. .That this Court allow plaintifrs their costs herein, including .a reasonable attorney's fee, and grant such further or additional relief as to the Court may appear just and proper in the premises.
HowABD )JooRE, JR.
PETER E. RINDSKOPF
355% Hu~~-- st., N.W.
Atlanta, ~tgia 30314
JAC~ G ->~,:.p:~:.·.. .·
C~;STB!-$:N RALSTON
10 Collnnbus Oircle
New YOrk, New York
Attorneys for Plaintiffs

 
 71
UNITED STATES DISTRICT COURT NORTHERN DISTRidT OF GEORGIA
ATLANTA DIVISION
(Caption Omitted in Printing)
OPINION AND ORDER [Filed Nov. 3, 1976]
In June 1969 this court entered an order in the aboveentitled action enjoining the defendants from discriminating on the basis of race in the operatJcm of the DeKalb County school system. The court retained jurlsdietion over the ease for the purpose of implEiDlenting its order. In September 1976 and August 1976 1 this coUrt held hearings upon the complaints of a group of eitizeps tliat
the DeKalb County sebool system was out of compliance
with the eourt's 1969 order. Basieany these cit&ens
(movant-plaintiifs) aDeged (1) that defendants were
violating the order with regard tG the D14jority-to-minority transfer program; (2) tbat deteJidants were violating the
order with regard to assignment of teachers and admin-
istrative petSonnel to the county's schools; and (3) that changes in attendanee zones were effecting resegregation.
The eourt is now prepared ro state its findings and con-
clusiODB as to these claims.
Before turning to the merits of these charges the court must first address- defendants' contentions concerning the procedural posture of the parties to this action. Defendants argue that the instant suit may not be maintained as
1 The delay was oceasioned in part by the faet that, due to one tragic accidental death and the removal of two lawyers from the State, the plaintUra went for several months without local counsel.

72
a ela~s action, and further, that the instant ease has become moot. This action w•. originally filed on behalf
of two classes: all adult Negro citizens and their minor
children who reside in DeKalb County, and all adult white citizens and their minor children residing in DeKalb County. Although the court has repeatedly referred to the plaintiffs herein: as a class, no "class" has ever been properly certified ; by ·this court within the meaning of Rule 23 of the Federal Rules of Civil Procedure which became effectiv~ January 1, 1974. Even though the court held in 196$ that its jurisdiction over the ease would continue, defendants claim that inasmuch
as the original named plainti1fs are no longer enrolled in the DeKalb sehool system, this aetion should now be dismissed as moot. Pasadena City Board of Education v.
Spangler, 440 U.S.L.W. 5114, 5115 (June 29, 1976); Indianapolis School Commissioners v. Jacobs, 420 U.S. 128, 130 (1974).
It appears, however, that one of the named plaintitrs is still a student in the DeKalb County schools, and as to this student, the case is still a live controversy. Accordingly, the court wiD interpret the movant-plaintiffs' petition for. relief under the 1969 order as a motion to inter-
vene, joining the briginal named plaintiff. The Fifth
Circuit bas held that intervention
". . • is the proper course for parental groups seeking to question current deficiencies in the implementation of desegregation ordel'S. • • . The petition for intervention would bring to the attention of the district court the preci..~ issues which the new group sought to represent and the ways in which the· goal of a unitary system had allegedly been frustrated. The district court could then determine whether these matters had been previously raised and resolved and/or whether the issues sought to be presented by the new group were currently known to the court and parties in the initial suit. . . . If the court felt

I .

73

that the new gorup had a significant claim which it could best represent, intervention would be allowed." Hines v. Rapldes Parish Sclu)ol Board. 479 F.2d 762, 765 (5th Cir. 1973) •

The court finds that the movant-plaintiffs, Monica Rocker, et al., satisfy the requirements for intervention under Hines and therefore ALLOWS the movant-plaintiffs to intervene in the instant action. Rule 24 (b) , Fed.R.Civ.P.

ThE court further finds that the named movant-

plaintiifs represent a class of ble of being certified within

uthmewDmeeda··niinndgivoidfualtluslecap2a3-,

Fed.R.Civ.P., .and hereby CERTIFI~S the class under

Rule 23(b) (2) as consisting of aU bb&ck citizens and

their minor children residing in De~lb Qmnty, cf.

PasadeM City Board of Educa,tion v. Spangler, supra

at 5115. Although the named plaintiffs a)] reside in the

sout.'lern part of the county, the court finds that the

named plaintift's and their attorneys have and wiU ade-

quately represent the interests of the black residents

throughout the county.

Factual Background
M-to-M Program
The DeKalb County school system is currently operat-
ing a majority-to-minority (M-f.o..M) transfer program.
Under this program any student attending a neighborhood school in which his race is in the majority may traDEfer to a school where his race is in the minority under the foJiowing conditions: the receiving school must have the capacity to hold an additional student, and the M-to-M student may not transfer to a school in which the minority race comprises more than 40% of the student body. Additionally, the student may transfer only to the 41next. closest school" in which space is available and in which the minority race is less than 40%.

74
A parent wishing to have his student transferred under M-to-M must apply for such transfer through the principal of the student's neighborhood school. The parent is then told which school or schools qualify as the "next closest school" to the neighborhood school. The parent may then apply to the principal of one of these next nearest schools for a transfer. The decision as to whether the student may transfer is made by the principal of the proposed receiving school and is based solely on whether the school has the capacity and meets the 40% requirement. No exceptions to these rules are made, for example, to allow members of one family to attend the same receiving school, if to do so would incrf~e the minority population of the school over 40%. If the proposed transfer school does not meet these requirernents1• the parent is advised of the next nearest school which would satisfy these standards.
At the commencement of each school tenn, every student is required to register at his neighborhood school. A student who has been attending another school the previous year under M-to-M must still register. at his neighborhood school and reapply for an M-to-M transfer to the school he had previously attended. If over the course of the year that receiving school has become overcrowded or has passed the 40% mark, the student will not be allowed to reenter the receiving school but must either return to his neighborhood school or attend the next available near-. est school.
Some parents desire to send their children to schools other than the next nearest school under theM-to-M program, claiming that certain schools in the county are better than others. A study of standardized achievement test results in the lower grades indicates that the average scores are generally higher in those schools which have a high predominance of white students than in those socalled "target" schools which are almost completely black in the southern part of the county. The distribution of

75
reading and math resources, such as specialists and paraprofessionals, indicates that those target schools receive a higher percentage of such resources than certain predominantly white schools, although certain reading resources for advanced readers are not now present in these target schools. These latter resources, however, are capable of being moved among schools as the need for them arises. A comparison of selected aspects of the predominantly black schools in the southern part of the county with select.ed predominantly white schools in the coun·ty shows r,o apparent trend of superiority among any group of schools. These aspects included number of library books, average number of years of sta1f education and experience, and pupil expenditures for sta1f per individual school .
. For the 1975-76 school term, 96 students exercised the M-to-M option; two students' requests for M-to-M transfers were rejected. As of August 16, 1976, 27 students had transferred under the M-to-M program, and three requests for such transfers were rejected for the 1976-77 term.
The school system provides bus transportation for all those students who live more than a mile from their neighborhood school and is reimbursed by the state for transportation provided to students living over a mileand-a-half from their neighborhood school. No transportation is currently provided to students who exercise the M-to-M option and attend a school other than their neighborhood school, nor are M-to-M students reimbursed for expenditures made for self-transportation.
Fae11.lty
Out of the total number of faculty positions in DeKalb County, approximately 15% are held by black teachers in the elementary schools and 13.6% in the high schools for the 1976-77 school year; 32.4% of the newly hired teach-

76
ers are black in the elementary schools, 33.1% in the high schools. To fill a vacant position in a school that has fewer than the system-line average of black teachers, only black applicants are sent to the school for interviews.
The percentage of black teachers in individual schools in the county ranges from 6.9% to 48.3% in the elementary schools, and from 9.8% to 25% in the high schools. Those schools with the highest percentage of black teachers generally also have the greatest predominance of black students. For example, the faculty at
Leslie J. Steele Elementary School is 43.3% black, while
its student body is 98% black. At Terry Mill Elementary School the proportion of black teachers is 44.1%, while its student body is 98% black. Conversely, at Montgomery Elementary, where 12% of the students are black, only 6.9% of the faculty are black.
Two reaso11s were supplied by the Associate Superintendent for Community and Staff Relations to explain the higher concentration of black teachers in the more predominantly black schools: (1) teachers living near those schools prefer to teach in a school near their homes and (2) principals desire to have more teachers who are the same race as most of the students so that the students have someone to "relate to". Involuntary transfers are rarely used to alter the disttibution of teachers in the individual schools.
Attendance Zone Changes
A number of attendance lines changes were instituted in the southwest portion of DeKalb County in 1974 and 1975. This same area has experienced an increase in the percentage of black students, due to the influx of black families and the departure of white families from the area. The general pattern of transition is for the black residential area to proceed on a circumference which hae been expanding, year to year, from the Atlanta city limits

77
into DeKalb County. The transitional area has been moving from northwest to southeast. Accompanying this transition has been an increase in the ratios of black students in the schools in this area. For example, the area served by Clifton, Meadowview, and Cedar Grove (fonnerly Bouldercrest) elementary schools, has changed from 7.4% black students in 1972 to 50% black students in 197&.
Major alterations in elementary school zones were implemented in 1974 and 1975 affecting the area covered by the above-mentioned schools. The primary factor motivating these changes was the closing of the Bouldercrest school which had been built on a site too small by state
standards. The site for a new school (Cedar Grove) had
been chosen in 1969, before this court's previous order, and at a time when the population in the entire southwest portion of the county was 98% white. There is no claim of impropriety in the choosing of the Cedar Grove site.
The building of the new school necessitated boundary line changes because the Cedar Grove site was located within the Clifton attendance zone. Prior to the change, both the Bouldercrest and Clifton school zones extended southward to the Clayton and Henry county lines. The ~dowview sehool zone formed an immediate circumference around that school. In January 1974, the new school zone which would be served by Cedar Grove was announced. It encompassed the predominantly white southem halves of the Bouldercrest and Clifton school zones, lying below the South River and Interstate 285. Most of the upper half of the old Bouldercrest zone was added t.o Meadowview, except that portion immediately surrounding Bouldercrest school. The former Clifton zone was cut off at the South River and was pushed back into almost half of the original Meadowview zone. Since the new Cedar Grove school eould not be ready as planned for thP fall of 1974. students in the new Cedar Grove district attended the o]d Bouldercrest school for the 1974-75

78
term, accompanied by the students residin.g in the area immediately surrounding Bouldererest.
Wh<en the zone change was made, Clifton went from 29.6% black (in June 1974) to 63.4% black (in September 1974); Meadowview went from 51.8% black to 58% black; Bouldercrest changed from 7% to 14% black. In the fall of 1975, the new Cedar Grove Elementary School was opened, and the area immediately surrounding the Bouldercrest school was zoned into the Clifton zone as originally planned. With this change Clifton's black population increased from 67" (as of June 1976) to 77% (as of September 1976); Meadowview Changed from 62% to 67% black; and Bouldercrest's, now Cedar Grove's,
black population deereaaed from 14% to 12%. The net
eft'eet ot the changes meant that the two older schools
would now serve the predominantly black population in the northern part of the area, and the new school would service the predominantly white students to the south. It is impossible to determine, however, to what extent
changes in the racial composition ot the schools was af-
fected by changes in the racial composition of the resi..
dentia! areas encompassed by -these school zones.
The high schools in this area were also subject to zone changes and substantial shifts in their racial ratios during the years 1971 to 1975. The area now served by Gordon, Walker, and Cedar Grove high schools has
changed from 22% black students in 1971 tO 70% black
students in 1975. ·The building of a new high school, Cedar Grove, in 1972, was again the major cause of attendance zone changes. The new school was built to relieve overerowing in Walker and Gordon high schools which fonnerly served the area, and to reduce the distance traveled for students in the south part of the county. Cedar Grove was built on available land adjacent to the new elementary school, and there is no allegation of impropriety in the locatio11 of this school.

79
In 1971, the year before Cedar Grove High School opened, Gordon was 45% black and Walker was 3.9% black. Columbia and Southwest DeKalb, surrounding schools also deeted by the building of Cedar Grove, each were 2.7% and 4.5% black, respectively. The new Cedar Grove school zone cut off the southern portions of the Walker and Gordon zones, constricting those zones to the area north of In~rstate 285.
In 1974, additional zone changes were made affecting
these high schools. Gordon's southern boundary was pushed further north to I-20, and the racially mixed resi-
dential area remaining went to Walker. Cedar Grove's
zone, whieh originally extended past 1-285, was constricted south of 1-286. The Walker zone absorbed this area and 1tow eompletely separated the Cedar Grove zone from the GordoD zone. Gordon's black population went from 89~ in September 1973 to 92% In June 1974, and 97% in September 19'74. Over this same period, Walker went from 36% to 43" and 60~ blaek. Cedar Grove's
black population remained at 14-16% during this period.
An additional zone change was made for the 1975-76 school term whereby part of Southwest DeKalb's attend-
ance area t1% black), which had become overcrowed,
was zoned into Cedar Grove, which was under capacity. The area rezoned was primarily white. At the time of the zone change Columbia (then just under 60% black) was also under capacity.
The court cannot determine, as to these high school boundary-line changes, to what extent shifts in residential patterns a1fected the rate of change in the 1~cial compositions of the schools.

M-to-M Program

Legal Discussiofl, .

In its June 1969 order, this court held that defendants "shall take affirmative action to disestablish all school segl"egation and to eliminate the effects of the dual school

80
system." Pitts v. Cherry, No. 11946 (N.D. Ga., June 12, 1969). For the past few years, the DeKalb school systetp )las operated an M-to-M program, outlined above, as such an afftrmative action. Although the program technically violated the 1969 order which prohibited transfers of students outside their respective attendance zones, M-t.o-M transfer programs were given approval by the Supreme Court in Swann v. Charlotte-Mecklenb61"g Board .of Education, 402 U.E. 1, 26 (1971) :
"An optional majority-to-minority transfer provision bas long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a partieular school to other schools where they will be in the minority is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stipla of segregation.''
The current operation of the DeKalb M..to-M program, however, imposes impermissible burdens upon those stud~ts wishing to take part in the program, discouraging wideseale use of this desegregation tool. A student wishing an M-to-M transfer, for example, faces a substantial amount of unnecessary red tape before his transfer may be eifected. The student must go through the same administrative process each year, never becoming a permanent student in the transferree school.
Even greater constraints are placed on M-to-M transferees and their parents in terms of the permissible schools into which students may transfer and the lack of transportation provided to get the transferees to those schools. Defendants justify the "next nearest school" requirement for M-to-M transfers as preserving the neighborhood school concept as much as possible. As the Supreme Court stated in Swann, BUpra,, "All things being equal, with no history of diseriminat ~on, it might well be desirable to assign pupils to schools nearest their

81
homes. But all things are not equal in a system that bas been deliberately constructed and maintained to enforce racial segregation." 402 U.S. at 28. In the instant case, due to the racial distribution in DeKalb County, the next nearest school limitation may compel a student to transfer to a school whose racial composition is only marginally different from his neighborhood school! a difference perhaps not worth the transfer.
Defendants have offered to alter the present program by requiring that a student may transfer only to the next nearest school where his race comprises no more than 15% of the student body. Defendants contend that this will accommodate the preferences of many of the
named movant-plaintiffs to transfer to the more pre-
dominantly white schools. However, this same limitation will inhibit students who desire to attend a school where their :race is in the minority, but which is also close to their homes.
The purpose of the current 40% requirement, and presumably the proposed 15% figure, is actually to prevent those schools from "tipping", or rapidly becoming predominantly black schools. Defendants have cited no authority, nor can this court find any support, for the use of such limitations in an M·to-M program to retard any change in the racial composition of a school in this manner. In fact, the implication from Swann is that very few restrictions should be imposed upon a student desiring to participate in an M-to-M transfer:. "In order to be effective ... space must be made available in the school to which he desires to move." 402 U.S. 26-27 (emphasis added). Currently, .a student may transfer only to a qualifying school where space is available, and is given no priority over other students. The effect may often be to preclude a child from attending his transferee school the following year if space in that school becomes unavailable. The Fifth Circuit baa held, however, that under M-to-M programs, "a transferee is to be given

82
priority for space." Singleton v. Jackso'n Municipal Separate School District, 426 F.2d 1364, 1369 (5th Cir. 1970). See Lee v. Maccm CtYU/n.ty Board of Education, No. 70-251 (N.D. Ala., Aug. 27, 1976), slip opinion at 26.
The effectiveness of an M-to-M program is also dependent upon the provision of free transportation. SwaM v. Board of Eduea.titm, 402 U.S. 26-27; United States v. Greenwood Municipal S6pll.rate School Di8trict, 460 F.2d 1205 (1972). The lack of transportation for transferees under the present DeKalb plan fo~s the students and "their parents to shoulder the burden of eliminating these vestiges of segregated schools," United States v. Greenwood, lfU;prrt, 460 F.2d at 1207, and, in fact, makes it impossible for some students to participate in the program.
Defendants complain that if the next nearest school rule is eliminated, and free transportation is required, the school system will be faced with an unreasonable and unfeasible task of transporting select student$ to different schools all across the county. Before it is known bow many students will participate in a re~ised M-to-M program, however, such fears are purely speculation.
Defendants also raise a general objection to any re-
visions made by this court in the voluntarily-established M-to-M program. Defendants maintain that they have complied with the specific mandates of this court's 1969 order and are now operating a unitary school system. Therefore, the court is without power, defendants argue, to make any changes in the school program which accomplishes the intentions of the previous order. Pasadena City Board of Education v. Spo:ngler, B'Ulpra, 440 U.S.L.W. at 5117. However, this court has never made any finding that defendants are operating a unitary system, and finds instead that the regulations imposed under

83
the M-to-M program perpetuate the vestiges of a dual system.
Defendants also rely upon the Equal Educational Opportunity Act of 1974, 20 U.S.C. §§ 1701, et seq., to block the above-mentioned changes in their M-to-M program. The Act, which emphasizes that "the neighborhood is the appropriate basis for detennining public school assignments," 20 U.S.C. I 1701 (b), also states that
"No court . • . shall • • • order the implementation of a plan that would require the transportation of
any student to a school other than'the school closest or next closest to his p1aee of residence which pro-
vides the appropriate grade level and type of education for such student.''
The Act also makes clear, however, that its provisions are "not intended to modify or dimlsh the authority of the eourts of the United States to enforce fully the fifth
and fourteenth amendments to the Constitution of the
United States." 20 U.S.C. l1702(b). This court, therefore, retains its equitable powers to remedy past wrongs, the scope of which "is broad, for breadth and flexibility
are inherent in equitable remedies." Swann, supra,, 402 U.S. at 15. In analyzing the impact of the Educational
Act upon the court's equitable powers, the First Circuit stated in Murga.n v. Kerrigan, 530 F .2d 401, 412-18 (1st Cir. 1976),
"By explicitly leaving the district eourt the power to determine the adequacy of remedies, the Act necessarily does not restrict the breadth of discretion of that court to determine what scope of remedy is constitutionally required. Thus the Act manifests its purpose not to limit judicial power but to guide and
channel its exercise. In a sense it is a statutory 'less
restrictive means' guideline, endeavoring to ensure that substantial compulsory transportation be used as a last resort."

84
It should be noted that the re\isions of the M-to-M program eontemplated by this court do not involve a program of forced busing, a remedy which the Act seeks to diseourage, but a program whieh will provide transportatiOD for those students who volunteer to transfer
to a aebooJ in whieh their :raee is in the minority. So
long as the sehool system operates its M-to-M program, this court finds that tnmsportation and other revisions are eonstitutionally required so that the program will
provide equal educational opportunities while helping
to elimmate the vestiges of a dual school system in DeKaJb Cowlty, cf. MorfiiU' v. K~ npm., 530 F.2d at 413.
Te~JC~ter ~ts
This eourt held in its 1969 order that
"Raee or color abaD DOt be a factor in the hiring, aaipment, reaadgnment, promotion, demotiOD, or dismitsal of teaehera aad other profeaaional atafr members, including studeDt teaaers, except that race may be taken into aeeouut ffW the purpose of eounteraeting or eorreetiDg the 4dfeet of the segregated aadpment of faealty aDd sta« in the old dual system.'' (Slip opiDion at '7.)
The eourt acoording}J required that " [w )herever possi· ble, teachers shall be assigned so that more than one teadler of the minority raee (white or Negro) shaD be on the desegregated faeulty!' IlL The defendants have more than complied with this explicit requirement. However, the court also mandated that the
"County Board shaD establish as an objective that the pattem of teacher assignment to any particular school not be identifiable as tailored for a heavy eonCflntration of either Negro or white pupils in the school . . . . [and] shall take steps to assign and
reassign teachers and other professional staff mem·

85
bers to e1iminate the effects of the dual system." (Slip opinion at 8.)
The court find& that the defendants have not taken ade-
quate steps to utilize reassignment of teachers to reduce the racial identifiability of faculty in accordance with the standard set out in Singleto. v. Jacbcm Municipal Separate School Di•trict, supra. In Singleton, the Court of Appeals for the Fifth Clreuit held that in order to reduce t"3dal identifiability of a faculty, staff hhould be
uaiped so that the ratio ot blaek to white teachers in
neb school Js "substantially the same" as such ratio
throughout the entire sehool .,atem. 419 F.2d at 1218.
Defendants aak that the eourt eompare the facts in the
instant cue· wJtb El& v. B«Jnl of Public Instructicm of Ortmge CMMtf, 423 F.2d 203, 205 (6th Cir. 1970), where the eourt fOUDd the school system· to he in compliance witb SMglef.on, despite the existenee of racial ratios in mdivktaal schools twelve pereeatap points higher than the racial ratio of the entire school system. While the
eourt i8 aware ot the problems inherent in requiring that.
the teaehen at any sehool be maintained at an exact arbitnry raeiaJ ratio, Utlit«l St4U. v. Wile~ County Boartl of Ed1t«1titln, 494 F.2d 576 (5lh Cir. 1974), the curreDt 40-48" of blaclt teaehen in some of the more predontiDaDtly black elementary sehooJa does not even "approximate" the 16% system-wide ratio. See Carter v. West FdicioftG Pamh School Board, 432 F.2d 875, 876 (5th Cir. 1970).
A signifteant reason for the wide disparity in the
racial ratios amongst schools in DeKalb County is the
reJiance on the replacement process, and the avoidance of
reassignments to even out the distribution of faculty. The eourt finds that this system does not comply with the Si1agletcm standard, nor with this court's 1969 order which required reassignment of teachers to eliminate the effects of the dual school system. Accordingly, reassign-

86,
ment of teachers must be utilized to make the racial ratio of the faculty in individual schools truly substantially similar to the system-wide ratio, Lee v. Macon County Board of Education, supra., slip opinion at 23.
Attendance Zone Changes
In its previous order, tllis court held that
- "[T] o tbe extent consistent with the proper operation of the system, the County will, in locating and
designing new schools, in expanding existing facilities and in consolidating schools, do so with the objec-
tive of eradicating segregation and perpetuating desegregation."
Plaintiifs contend, however, through a report prepared for the eourt by the Department of Health, Education and Welfare, that the "DeKalb County School System, in its response to racial transition, ignored its responsibility to afftrmatively eradicate segregation and perpetuate desegregation." HEW Report, at 11. Specifically, plaintiffs argue that the school zone changes made by defendants have resulted in racially identifiable schools.
Defendants counter by stating that the increasing number of racially identifiable schools in tbe southwest section of DeKalb County has been causeJ not by the zone changes implemented by the board, but by the natural population transition which has OCf.:Urred in the residential sections of that area. Defendants further argue that having implemented the 1969 de;egregation order, they cannot be l1eld responsible for residential pattP.rns that have developed since that order. Defendants rely upon Swann, trUpra, wherein the court stated
"Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial eomposition of student bodies since the affirmative duty to desegregate has been accomplished and racial discrimination through ofti-

87
cial action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the state has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary."
Defendants also point to the recent ease of Pasadena Board of Education v. Sptllngler, 44 U.S.L.W. 5114 (June
29, 1976), which involved the subsequent interpretation
of a desegregation plan entered by a district court in 1970. The court-approved plan required that no school
have 3 majority of minority students. Within two ..years
of the entry of the order, changes in the residential pat· terns in the area caused some schools to have a black enrollment in e."'tcees of 50%. The Supreme Court found that although the school system had not yet achieved the unitary sy!tt.em contemplated by the above-quoted language from Swann,
,.. • • • [T]hat does not undercut the force of the principle underlying the quoted language from Swann. In this case the District Court approved a plan designed to obtain racial neutrality in the attendance of students at Pasadena public sehools. No one disputes that the initial implementation of this plan accomplished that objective. That being the case, the _District Court was not entitled to require the School District to rearrange the attendance zones each year so as to ensure that the racial mix desired by the court was maintained in perpetuity." ld. at 5117.
In Pasadena, once the initial desegregation order had
been implemented, changes in :re!lidential patterns and resulting shifts in the racial makeup of schools were un· affected by any actions taken by school officials, because

88
no official action was taken. It is for this :reason that the district court in Pasaderut was forbidden from ordering school officials to restructure attendance lines.
Different considerations are relevant, however, when shifts in residential patterns are accompanied by alt.erations in attendance lines made by school officials. The Supreme Court has held that
"* * * * [A]ny attempt by state or·" local officials to carve out a new school"'''district from an existing district that is in the process of dismantling a dual school system 'must be judged according to wheth~r . it hinders or furthers the process of school desegregation. If the proposal would impede the dismantling of a dual system, then a district court, in the exercise of its remedial discretion may enjoin it from being carried out.'" United States v. Scotland Neck Board of Education, 407 U.S. 484, 489 (1981), quoting Wright v. Co·uncil of Emporia, 407 U.S. 451, 460 (1971).
In the instant case new boundary lines were drawn with the building of Cedar Grove elementary and high schools. At the same time, schools in that area experienced substantial changes in their racial composition. This court must look to whether such boundary-line changes had the effect of impeding desegregation in these schools. Of course, such inquiry cannot ignore the racial.-tmnsition -occurring in this area apart from any zone changes.
The court must pursue this examination despite its finding that boundary-line changes were made for the most part to accommodate the new schools which had been built to relieve overcrowding. In determining whether a school board's action is pennissible, courts have "focused upon the effect-not the purpose or motivation" of such action on the dismantling of a dual system. uThe existence of a permissible purpose cannot sustain an action that has an impermissible. .effect." Wright v. Council of Emporia, supra, 407 U.S. at 462.

89
In applying this test to the facts as found by the court, it is apparent that the redrawing of elementary school lines in southwest DeKalb had some effect upon the per· petuation of a dual system in the county. Over the course of one summer, Clifton went from 30% to 63% black. Surely the influx of black families and departure of white families accounted for some of the increase. But the redrawing of attendance lines along I-285 and the South River must have contributed somewhat to this dramatic increase. ArJditionally, it must be said that the total effect of the horizontal boundary lines drawn to accommodate these three elementary schools was to ensure that one predominantly white school, Cedar Grove, would remain predominantly white for a number of years.
Although the school board's actions may have had these effects, its zoning decisi1>n must also be scrutinized in the context of the circumstances existing at the time and the feasibility and practicality of available alternatives. For it is only the availability of more promising courses of action to dismantle a dual system that "places a heavy burden upon the board to explain its preference for an apparently less effective method." Green v. County School Board, 391 U.S. 430, 439 (1967) ,_ Wright v. Council of Emporia, supra, 407 U.S. at 467.
At the time these attendance zone changes were made, the Cedar Grove site had already been chosen, and the choice was made at a time when the rae1al composition . of the area was almose completely white. As it devel·· oped, it was the location of this new school, accompanied by a transition in the residential patterns in the area. which had the etrecl of perpetuating a dual system, because the school site dictated to a large extent the placement of the new attendance lines. The propriety of the selection of the Cedar Grove site, however, is not in question.
Even so, plaintiffs, supported by HEW, contend that, given the location of the Cedar Grove Elementary School,

90
attendance lines could have been drawn in such a way as not to accentuate the racial identifiability of the schools. HEW's report suggests that since blacks reside primarily north of I-285 and the South River, and most white are located to the south of those lines, drawing boundary lines vertically, like some of the original lines, as opposed to the horizontal lines chosen by the defendants, would have created more racially balanced zones. However, HEW's report fails ·to consider the exact location of families south of I-285 and the South River. For with the exception of the predominantly black County Line community, just north of Henry County, most of the population clusters towards the center of this area. The drawing of vertical lines would thus have had little effect upon the racial makeup of the school. In fact, because of the :residential patterns in southwest DeKalb as of 197374, and because of the location of Meadowview, Clifton and Cedar Grove within those patterns, only the drawing of extremely gerrymandered lines would have resulted in more racially balanced schools. Such gerrymandering would have created large travel distances for students and would have been generally impractical. In light of the circumstances existing at the time these zone changes were made, it cannot be said that such changes were constitutionally impermissible.
The same is largely true with respect to changes in high school attendance zones. The location of the Cedar Grove High School m~ndated to a certain degree the establishment of a predominantly white school because of Cedar Grove, and: two predominantly black schools, because of the residential transitions occurring in that area. The alternative of vertical boundary lines, suggested by HEW, was virtually impassible because Cedar Grove High School is loca~ directly below Gordon.
Plaintiffs and HEW, however, also complain about certain changes that were made after the Cedar Grove school had opened and the area had been rezoned accord-

91
ingly. As to these changes, there appear to have been alternatives--among them, to make no change at alland defendants have not adequately met the heavy burden of explaining the alternatives chosen which tended to hinder, rather than further, desegregation. Specifically, the zone changes in 1974 which constricted Gordon to the area north of I-20 and moved Cedar Grove's northern boundary to I-285, with the area in between going to Walker, had the effects of (1) increasing Gordon's Already predominantly black population, (2) isolating the Cedar Grove area from the path of residential transition, with Walker serving as a butter zone, and (3) helping Walker to tip over to a predominantly black school Defendants justify the Cedar Grove boundary change by demonstrating that 35 out of 43 students removed from Cedar Grove as a result of the rezoning were white. Yet, defendants could clearly see that this area rezoned from Cedar Grove to Walker was in the direct path of residential transition and was becoming increasingly black. Defendants have offered no further justifications for their zone changes.
Another contested bo11ndary line change occurred in 1975 when part of Southwest peKalb's attendance area was zoned into Cedar Grove to relieve .overcrowding in Southwest DeKalb. The zone change split a subdivision down the middle and created traveling distances of up to ftve-and-a-half miles for some of the rezoned children. HEW points out that, like Cedar Grove, Columbia was also under capacity and a largely white area between 1-20, Candler Road and 1-285 could have been rezoned from Southw~t DeKalb into Columbia. Such a change would have impeded Columbia's transition towards becoming another predominantly black school, and, in addition, the maximum travel distance for a rezoned child would be only twe>-and-a-half miles. Therefore, in an ~ttempt to relieve overcrowding in one school, defendants failed to choose an available alternative which would have also furthered desegregation.

92
There are two problems with a finding by this court that the above boundary changes had the effect of hindering the process of desegregation within the meaning of Wright, npra. First, because of the rapid :residential transition occurring throughout this section of the county, and a1fecting the racial ratios of schools in which no zone changes have been made, it is impossible to determine whether the zone changes in question actually accelerated th~ transition at one extreme, or whether they had little effect on the process of desegregation which was in fact impeded by a natural process of residential transition. The second problem is that even were the court to find the fonner to be true and conclude that therefore the boundary changes were impermissible, an injunction against their impo&ition at this point in time would be meaningless. The percentage of blacks in this area bas
increased dramatically and, as the HEW report admits,
"Because of this concentration of black students, we believe consideration of remedies would have to look beyond mere alteration of school zone lines in the area schools." HEW Report, at 11.
Whatever indetenninabJe effect the aforementioned zone changes have had on the process of desegregation in this portion of DeKalb County, the actions of the defendants in making these changes do not justify the ordering of
a remedy which would go bey(\nd the alteration of school
zone lines. The court does wish to ensure, however, that any future zone changes as well as the purchase of any new schoo1 sites are made so as to have the eft'eet of furthering as opposed to hindering desegregation. Accord· ing]y, a biracial committee wiiJ be established which will, as part of its functions, approve such zone changes and school site purchases. Singleton v. Jack~Jon Municipal Separate School District, supra, 426 F.2d at 1370; Ellis v. Board of Public Instruction, 423 F.2d 203, 207, n.4 (5th Cir. 1970).

93
ORDER
For the foregoing reasons, the court hereby ORDERS that:
(1) The M-to-M program be modified so that any student may transfer from a school where his race is in the majority to any other sebool within the county in which his race is in the minority. Space must be made available in the reeeiving schools for transferees who shall be given priority for space over new students, but in no instance shall a transferee displace a student previously enrolled in the receiving school.
(2) Sueh M-to-M transfer ahall be efteeted by as simple aD administraitve proeedure as possible. The school system will provide M-to-M transfer forms at the student's neighborhood school. The student's parent or guardian must, under usual eircumstances, complete the form on or before May 1 of the school year preceding the school year for which the student desires to participate in the M-to-M program. The school system shall provide the student with a copy of the form which shall be presented to the receiving school by the student on the annual registration day.
(3) The school system shall publicize the :M-to-M transfer procedure by paid advertisements in local newspapers; news releases to all media; brochures available at each school ; and notices placed in school newsletters and newspapers no later than March 15 of each year. Such publicity shall be followed by notices sent to each parent or guardian no later than March 31 of each year.
14) Any student may exercise a majority-to-minority transfer once during the student's elementary career and once during the secondary school career. Once a transfer is effected, the transferee need not reapply for the transfer each year. If the student's race becomes a majority in the receiving school, he may (a) remain at the reeeiv-

ing school; (b) return to his neighborhood school; or (e) transfer to another schooi in which his race does not comprise more than a majority of the student body.
(5 l Transportation shall be provided at the expense of the school system to any M·to-M student who so requests and who Hves more than one mile from the receiving sehooJ. Defendants may seek modification of this provision of the order if, based on the number of students eleetmg to exercise M·to-K transfers and the receiving sehooJs ehoeen, a workable plan of transportation proves impcaible..
f6) Theae changes in the M-to-M program shall be implemented for trasfers beginning with the 1977-78 sehool tenn. Students wishing to participate in the program for the remaindeJ- of the 19'76-'17 school tenn, may
transfer to a sehooJ which qualiftes under the provisions
of thJa order and in whieh there Ia space available. Transfer.- must provide their own transportation for the
balaDee of the 1976-77 sehooJ term.
Diltrihtift of FGC1dtr
( 7) 'nte ratio of black to white teachers in each school must be sabstantiaDy similar to the system-wide racial ratio. Defendants are required to reassign teaehers with all deliberate. speed so that the raefal distribution of faculty in all eehools approximates the distribution of faculty in the entire school system.
Biracial Committee
(8) A biracial committee shall be estab1ished which shall oversee the operation of the M-to-M program as modified by this order. The eommittee's approval must also be seeured on any proposed school zone changes or school site purchases. The committee is to be constituted by this court from names submitted by parties to this suit. The number of members will be determined by this

95
court and shall consist of no more than 20 nor less than ten members. The n1embersbip shall be equally divided between whites and blacks and the chainnanship shall alternate aDDually between a white and a black chairman. The committee shall make annual reports to the court coneerning the functioning of the M-to-M program and any other action taken by the committee on proposed attendanee zone changes or school purchase sites.
IT IS SO ORDERED.
Thl8 3nl day of November, 19'16.
/s/ Newel1 Edenfield
NEWELL EDENFIELD
United States District Judge

 
 133
UNITED STATES COURT:OF APPEALS. FIFTH CIRCUIT

No. 78-3603 Summary Calendar•
WILLIE EUGENE Prrfs, fJ't al., Plaitltils-Appella.U,
v.
JIM CBEDY, et al., DejendtMU-AfJ'116llu..

Appeal from the United States Distriet Court for the Northern Distriet of Georgia

July 16, 1979'

Before GOLDBERG, RONEY aed TJOI'IAT, Cireuit Jucl;pL

.PB.1.l.C.1..J.it.ld.:............ .,bl.......

c..., ............,............ eWWI• ..... that ,..ti• til 0. ....._ __..• ._
-cu1.-..-.t..ia·a .~ .,.... 'W'Ilidl ......·· ..a.. IIZlldJ.l~t ,,._,a....- -~...m ..r . . 14. . for . . ..

,..._ • •;.._ .... el8et to~ . . . ........,.

...,.:_.... I

jf_:.•.;: ;:';' I
c.~:-::::;,::!~:.: ,~;•li1illlll

C.ar•flw

I

134

majority-to-minc~rity transfer program. We have uni-
formly held that kindergarten ehildren need not be in-
cluded in desegregation plans and have further ruled that
f----pare~nts must arrange for ~on of kindergarten children who ehoose to participate in a majority-to-minority transfer program. FE. v. Potta, 464 F .2d 865, 869 «5th Cir. 1972t ~Me Loebtt v. llMfti. of Ed. of JltUJCOgee Co. Sch. Dist., Ga.., 447 F.2d 47%, 473 (5th Cir. 1971); Arvizu v. Wa~o I~ Selu»l Di8triet, 496 F.2d 499, 503 n.8, 504 a9 (5th Cir.. 1974). We aftinn.

DeKallt County operates a majerity-to-minority (M-to-

M J traufer procram iD wiUeh aRJ student attending a
sthool in whieb he or sile is of tile majority raee may
traD&fer to a aehool iB whieh 1le er abe WGdl be of the
.miaority nu:e. Partieipatia itt tile program bJ students
is velutary. About 1,!28 ltlMieJtU or 6~ of the blaek
staa..t em-ol1meDt 8ae optecl to partidpate. Federal eourt
order .~ defad•ts to pnwWe traasportatioa for all M-te--JI stutleRt&

esc.- ki....,..._ ' .

la Mar 1978, tile sehool +4ri•le aeked tile ctieuiet court

to

entirely all

etaiWrell fNIB the

K--to-M operatioll. At drat . _ ........ were raet op-

eratiDB a f'WIJ t.W ..._.,..._ PJ'GP"88L AIJGut

BMI8t" 1?711 Mll/letlta participated Ia • illtlln1J1118 ,.....-, wbom .... -~--.,. lldved • ~ill!PJ*I ~ Of tlult a..._,, .._. JaJ ar -~ II-__..
tl'um. a mikr fJ'GID tile .._. te _.... tM.v were nT 'ped

Dale••• •••••a _. .... ad Weft provicW ~ t. ...t fr.a die Wf.

clay ~

were Ia die pn1 r.u r ef apatld-

ilw s. ~ ,..,.. ..,.. ..,.

w., tici',.W - i . . . - ....... 4Jll8 . . . . . . . . IJiiptJy

Jea tUa 10·' ef dast MmtR'

~ Tlmr

~i.w pro¥al fairtJ . . . . .

At ,weaem. Dd:alt c..tJ .,.... a ate tuacied
ki~ PJ'OII"Ul aM _ . .tate , _ . fer .,_.._
tioul ~ illdudia« ~ fte .._. .,.._

135

currently transports just under 2,000 kindergarten children who live a mile or more f~ their sehool. Only M-to-M kindergarten c:hildren are not provided transportation.

Altheugh the distric:t court denie4 defendants' request

to exelude kindergarten students f.-om participating in

the 11-to-M program, the eourt ~Bed to require the

defendauta to fumiah tnmsportatiODI for those electiag to

·s._. participate, eitiag as its reUOD ~ tender a.p of the

kiDderprteD students, Relying on

v. Cluwlotu-

JI~rg Board of E~, 402 U.S. 1, 2&-27, 91

S.CL 1267, 28 L.Ed.2d 664 (1971), and ita proge~~y plain-

aehool.,._, tUfa argue that prior deeiaiODS ncplire that the tnmspor-

tati• bunletl be plated Oil tlae

the right to

traosportatioa attaehes reprcllea -.f ap or fP"8Cie, the

rilht to traafer 11-te-K is bad~ve if truapcwtatioa

is net ~ and dellial of ~- is eeaatitu-

tioully ilapetaiaeible where a sdaeol aptsn provides

traD8p011atiea to aD other ki~ elaildrea.

~ dae ialu~ of traDepOrtatiea fer majority-tominority tratMder ldllderprtea students iu Fl4z v. Potts, ..,.. at 169, 1ttdge Dyer said:

Alll&ller pi'OI'Ig of appelluts' objection to the Compre-
laeaeive P1aa approved hy the t.rial eourt is the noa-
iJielasiGB ol kiuderprtea aad flrst pade stucleats in
the elueter PJ'GII"UL We flDd • jaetHieatiOD fw tbe ~ of ftnt grade ~ .,._,. are part
of tlae ..... eumadUJD of ·tire . . . . ad eadtJed
to a ftdl aad equal mtep'&ted ~ We ~ 'how"ewr, dult beeause of ~ ~ till the kinderprteh p~ the ~ . . . . . . ol its OJJ¥8-
~ ..t the tender are ...- ..,.._. aeeda of it•
....._t ~ ita elindaati011 f~ die Ol'er.all ltucleat plan !a neither uft1e........ 11« coasti-
tutiotWIJ impermi•ible. See IAelwtt v. Boanl of
Ed~ of M11.«0f/H Ccn~..ty, 5 Cir. 1971, 447 F.2d

136
472 [19711. The kindergarten pupils will therefore continue to attend the elementary sehool nearest their home eondueting a pre-school program. However, for the parents of those children who so elect, the majority-to-minority transfer provision of the Comprehensive Plan must be extended to the pre-school level to make the pre-scllool program in any elementary scllool in the distriet available, provided the parent can arrange for the transportation of his child to that facility.
While this Court required transportation be provided for K-to-M students in Tuby v. Estes, 572 F.2d 1010, 1015 I 5th Cir.), cert. graated, - U.S. - , 99 S.Ct. 1212, 59 L.Ed.2CI 454 (1978), we t.here permitted children in kindergarten programs to remain in neighborhood sehools.
ld.. at 1014. Hence the aue of tranaportation for kinder-
garten 11-to-M students was not reaebed. The other eases relied on by plaintiffs do not eoneem ldntlerprta e1u1dren and do not control the instant ease. Su, e.g., S'WG••
v. Chorwtu-Mukle'lf.berg, RJP"" 402 U.S. at 30-31, 91 S.Ct. 1167; Uaited St4tu v. T._. E4~ Aget~CJ~.
579 F.2cl 910 l 5th Cir. 1978) ; C~ v. Corpu ChriBti I~tlt Sckool DiJitriet, 467 F.2d 142 (5th Cir. 1972\; Bn-wer v. Sclaool Boanl of tle Citr of Ntwfolk, V&.., 434 F.2d 408 t4th Cir. 1172); Cfa:rk v. ll9erd of E~ of Littl~ Rock School DYtriet, 4!6 P..ld 1035 t 8th Cir. 1970).
PlaiaU.s argue i,.1. u the denial of tnmaportatien to
M-to--11 kindergartea student& while providirw transportatJ. to non-ll··t.lllrlDderprten atuclentB is~­ tioudly impenniaible. We euaot maeh this qu11tioa on
this r....t. In thiB ease 110 indieaticm is . . . J'IIIPI"fiac
the radal eomposition o! the DOD-11-to-M ~ studen&s who are being ta•port.ed. We eamaot .......
mine, tllerefore, tt.e extent to which there ia an exelwdon
of blaek children and inclusion of white ebildren in t.he transportation of kindergarten children.

137
The distriet court could have lepDy excluded the kindergart.ea studenta from the lf..t,o..l( pt"'OI'&DL Refusing
to do so but requiring parents to arra.qe transportation
for kinderprten Jl..t;o..)( students· does not appear to
abuse the diaeretion of the cliatrid court to fashion a
deeegreptioo pJan for the eoutitutioaal fault whieh brought the ease before the distriet court. in the first pJaee, taldng into CODSideratioD. all relevant faetDrs, aueh as cost to to systsm and the teDder ap of kindergarten
chilclnn.
Plaintift"s have not met their burden on appeal of demonstrating that the district court erred in this c:ue..
AFFIRMED.

 
 151
IN THE UNITED S'i'ATES DISTRICT COURT FOR THE NOR1•HERN DISTRICT OF GEORGIA
ATJ.,ANT A DIVISION
(Caption Omitted in Printing J
MEMORANDUM OPINION
[Filed Sep. 8, 19831
In this motion for a preHrrtina.ry injunction, plaintiffs seek to enjoin the defendants' implementation of administrative decisions in three schools in the DeKalb County School System. Specifically, plaintiffs cha.~enge decisions made by defendants concerning Lakeside High School, Redan High School and Knollwood Elementary School. Since the factual circumstances and the requested relief at each school are separate and distinct, the court has trifurcated these proceedings. On August 25, 1983 the court commenced hearing evidence on the Lakeside issues. At the conclusion of the testimony and oral argument, the court orally announced its ruling. The purpose of this memorandum opinion is to provide written findings of fact and conclusions of law on the Lakesid6 controversy.
Alleging denial of equal protection of the laws, plaintiffs initiated this suit to ab~olve the vestiges of discrimination allegedly present in the DeKalb County School System.• Since a federal question is presented, the court's jurisdiction is invoked pursuant to 28 U.S.C. § 1331.
1 This action initially was brought to desegregate the DeKalb County School System. Another member of this court created the . minority-to-majority transfer system which is currently functioning in this county.

152

To state a constitutional violation based on the four-

teenth amendment equal protection clause, plaintiffs must

show not only racial imbalance in the schools, but also

"a current condition of segregation resulting from in-

tentional state action." Washington v. Davis, 426 U.S.

229, 240 (1976 J• To rebut this prima case, educational

authorities must demonstrate that the current racial

composition does not result from their past or present

intentionally segregative action. Price v. Denison Inde-

pendent School District, 694 F.2d 334, 350-51 {5th Cir.

19821. In Swann v. Cha.rlotte-Mecklenburg Board of

Ed'!Wation, 402 U.S. 1 (1971) the Supreme Court of the

United States recognized that "virtually one-race schools

within a district is not in and of itself the mark of a sys-

tem that still practices segregation by law." ld. at 26.

Yet, in school systems having a history of segregation,

there is a presumption against schools that are substan-

tially disproportionate in their racial composition. ld.

Furthermore, when a proposed plan for conversion from

a dual to a unitary system contemplates the continued

existence of some schools that are all predominantly of

one race, school authorities have the burden of demon-

strating that the school assignments. are nondiscrimina-

tory. Id.

·

The primary issues presented for the court's consideration are 1) whether defendants purposefully conspired to discriminate against black students by obstructing the minority-to-majority (hereinafter M-to-M) transfers to Lakeside High School and 2 J whether the application of the school's capacity limitation figures in implementing theM-to-M program at Lakeside was reasonable.

To support the position that defendants conspired to deny M-to-M transfer students the right to transfer to Lakeside High School, plaintiffs presented evidence of various school officials' statements and actions. For example, Norma Travis, Vice Chairman of the DeKalb County School Board, averred that the superintendent,

153
Dr. Robert Freeman, had declared "blacks should he kept in their place" during a "get acquainted" luncheon. She opined that Freeman made the statement because he thought she, a member of an ultra..con8ervative community, would like to hear such a statement.
The scene of the second incident bearing on defendants' intent occurred during a meeting held in the home of Edna Jennings on January 24,. 1983. The purpose of this meeting was to discuss the responses to questionnaires sent to parents in various schools. In particular, a majority of the responses to the questionnaires voiced support for the creation of middle schools in the Lakeside area. As a result of comments by Paul Womack, the chairman of the DeKalb County Board of Education, about the M-to-M students' impact on middle schools, however, Travis stated most of the participants at the meeting changed their views on the need for middle schools.
Plaintiffs attempted to demonstrate purposeful discriminatory intent in the manipulation of the M-to-M program by presenting evidence of a conversation between Womack and Philip McGregor, a black member of the school board and the Bi-Racial Committee. McGregor testified that Womack had approached him about endorsing a proposed limitation on the number of M-to--M students in any given school. Specifically, Womack asked him to support a limit that would reflect the county's racial composition. Responding that he did not support such a limit, McGregor reminded Womack such a plan had been presented to and rejected by the judge formerly presiding over this case. Womack then argued that this court might react differently to such a proposal, but McGregor remained steadfast in his views.
Fourth, William Adams, assistant superintendent in charge of projecting enrollments in the various schools, testified about a meeting in Freeman's office on February

154
15, 1983 in which he and Freeman were discussing the possibilities of closing certain schools. Womack inter· rupted the meeting to receive information ~bout the M-
to-M program at Lakeside. Adams averred that Womack
expressed the concern of residents in the Lakeside district about the increased number of black students opting to transfer to Lakeside High School. During this discussion Adams also declared that Freeman, referring to the number of M-to-M transferees, ordered, "Damn it, Bill, cut it off." In response, Adams said he told Freeman that he could not alter the projected number of students. Then Adams alleged that Edward Bouie, assistant superintendent in charge of the M-to-M program, offered to deal with the situation. According to Adams, Bouie stated "I've got the Bi-Racial Committee in my pocket and I can handle Roger Mills." 2
Subsequently, Bouie testified he received Adams' pro-jection for the 83-84 school year. Seeing a projected enrollment of 1485 an an overall capacity of 1560, Bouie testified that he determined that a limit of 110, rather than 75, should be placed on the number of students permitted to attend Lakeside via the M-to-M program. When this decision was later questioned, Bouie informed Freeman that he was removing the limit because some mistake had occurred. B~~ on these facts, plaintiffs contend that defendants conspired to deprive them of their equal protection rights.
On the other hand, Freeman testified that he did not make the statement "blacks should be kept in their place." He avvered that her testimony on this point greatly upset him and caused him to lose sleep. In addition, defendants presented testimony of three parents who attended the meeting at the Jennings' home on January 25, 1983. All three witnesses testified that before the
2 Mr. Mills, a member of the Bi-Racial Committee, has been a strong advocate for the protection of minority students' rights.

155
meeting was formally called to order various conversations in small groups occurred. None of these witnesses heard any remarks that the middle schools would increase the number of M-to-M transfer students at Lakeside. Furthermore, at the conclusion of the meeting, two of the parents were avid proponents of the middle schools and felt like the implementation of middle schools in DeKalb County was a distinct possibility. The other parent did not favor middle schools because she was afraid their creation would increase taxes and not benefit her children who currently are in high school.
In addition, defendants presented testimony by Freeman, Bouie and Womack about the February 15, 1983 meeting. Generally, these defendants testified that Freeman and Adams were in conference about the middle school projction figures when Womack entered the office and expressed his constituency's concerns about the increasing number of students at Lakeside. After Womack asked for the projected figures concerning enrollment at Lakeside, Freeman testified that he called Bouie in from the hall to furnish Womack with the most recent projections. Upon supplying the information, Bouie testified that he left Freeman's office. Although Freeman did not remember making the statem~mt, unamn it Bill, cut it off," to Adams, he unequivoeo.lly testified that he did not make the statement with respect to the M-to-M students. Bouie also denied the statements Adams attributed to him.
Reminding the court that as a student and administrator he had witnessed the transaction from a &~gre­ gated to a non-segregated school system, Bouie emphasized that he would never do anything to inhibit the education of a member of his race. He further explained that he did not understand that Adams' projected enrollment figures included the number of M-to-M students projected to attend the eighth grade. Therefore, Bouie tel3tified that he felt. that Lakeside High School

156
could accommodate at least 110 new M-to-M students. After receiving calls from concerned persons and reexamining the projected enrollment figures. Bouie realized that a mistake had occurred and told Freeman that the limit on the number of students permitted to participate in the M-to-M program would be abolished.
In addition, many witnesses testified about the accomplishments Dr. Freeman ~tad made during the past two years with the DeKalb County School System. During Freeman's tenure as superintendent, the number of students participating in the M-to-M program has doubled. Inter alia, Freeman created the Fernbank Science Center and a writing center in which students from the entire county participate in groups whose racial composition is reflective of the general county school-age population. Freeman also instigated a summer reading program to encourage students to read when school was not in session. In the opinion of Elizabeth Andrews, a member of the DeKalb County Board of Education and various civic groups, including the National Association for the Advancement of Colored People, these activities pulled students from each region together to teach them how to cooperate and interact . with each other. The programs, according to Andrews, improved the racial relations between black and white students.
After receiving information that minority students were not well repreS?nted in extra-curricular activities because of the lack of available transportation, Dr. Freeman approved the financing of an activities bus that would return students to their respective homes after an extra-curricular event. He also approved the revising of the athletic schedules to promote more interaction of predominantly white schools with predominantly black schools. As superintendent, Freeman has nominated and the Board of Education appointed four blacks and two women as assistant superintendents. Currently, 18 percent of high level administrators in the school system are

157
black in a county where 36 percent of the school-age children in the county are black. In addition, Freeman instigated an early retirement plan in which top administrators could opt to receive a bonus for retiring before they were so required. This plan not only has been cost effective, but also has presented the opportunity to appoint additional minorities under an affirmative action plan.
Several of the minority administrators testified about their working relationship with Freeman. For example, Dr. Eugene Walker, an administrator with the DeKalb County Community Center Unit of the DeKalb County School System, averred that he was hired by Freeman to operate programs with affirmative action. An assistant superintendent for the southern area of the county, Melvin Johnson explained that he had worked under three superintendents. He opined that the attitudes of principals and teachers had improved since Freeman had assumed office because there were no racial overtones in his administration. In accordance with those views, Eugene Thompson, assistant superintendent in charge of affirmative action, stated that he had been hired by Freeman, who was sensitive to the needs of blacks. He explained that Freeman did not send representatives to speak to predominantly black groups-he attended the meetings to determine their concerns and to answer their questions. Bouie, the assistant superintendent in charge of the M-to-M program, concurred in these opinions. He emphasized that Freeman did not impose any restrictions on his management of the program. Bouie also reiterated that he made the decision to place the 110 limit on the number of possible transferees to Lakeside.
As the fact-finder, this court was required to make credibility determim\tions based on the presented evidence with a view of not imputing perjury to any individual. This task we1s relatively simple, however, because most of the testimony could be reconciled. For

158
example, during the meeting at the Jennings' home all the witnesses testified that there were several small group discussions before the official meeting began. Although one witness testified an incriminating statement was made by Womack at the meeting, three other witnesses averred that the statement was not made in their presence. Therefore, assuming arguendo the statement was made, the impact of the statement was not disseminated to the group at large.
Yet, with respect to two circumstances in which directly contradictory evidenre was presenter,, the court had to find one version of the facts more credible than the other version. Based on the tstimony as a whole, this court cannot give credence to perhaps the two most damaging statements imputed to Freeman during the course of this trial. The court finds that Dr. Freeman has conscientiously contributed to the improvement of interaction between the races in the DeKalb County area. He has promoted programs that are color-blind and are for the benefit of all children within the community. The court was particularly impressed with testimony by black community leaders not connected .with the school system who testified that Freeman has promoted equality for black individuals when that course of conduct was not socially popular. In light of the many programs and activities that Freeman has inspired and approved, this court commends rather than condemns him for his work in promoting the educational needs of all children ;~n the DeKalb County School System.
Likewise, this court cannot impute any purposeful dis- criminatory intent to Bouie. The court does not believe that Bouie would intentionally prohibit a member of this race from obtaining the educational background he or she desired because he was prejudiced against that child's color. Rather, the court finds that there were serious breakdowns in communication between Adams and Bouie. This lack of communication resulted in the morass of

159
complications in effectuating the school system's programs.
Although plaintiffs introduced Womack's conversation with McGregor to show the specific intent to discriminate against blacks, this court interprets this action as an attempt to approach this court through the Bi-Racial Committee. Accordingly, no unlawful motive can be imputed to Womack for attempting to litigate an issue.
Therefore, the court finds that plaintiffs have failed to show any invidious discriminatory intent on the part of any defendant in this case. Injunctive relief will not be granted on this ground.
Th~ second issue presented for the court's consideration is whether the application of the school system's 26 students per one teaching station ratio was reasonably applied to limit the capacity of Lakeside to 1560 students. As a preliminary matter, this court will endeavor to give deference to proper educational policies established by a board of education except when those policies are not administered fairly to all individuals without regard to race, creed or color. To show that the number of 1560 was unreasonable, plaintiffs presented expert testimony which argued that the true capacity of Lakes!de was 1638. According· to defendants' expert1 however, the actual optimum capacity of Lakeside is 1430. Yet, neither expert testified that the 26/1 ratio was unreasonable. Since this ratio has been used historically and is rationally related to the legitimate state purpose of promoting education, this court finds that use of the 26/1 ratio is reasonable.
Nevertheless, the court also finds that the 26/1 ratio was not fairly and accurately applied in this instance. As stated previously, the court finds that the confusion in this case arose from a breakdown in communications between the assistant superintendent in charge of the planning of enrollment projections and the assistant su-

160
perintendent in charge of the M-to-M program. The court is absolutely convinced that Adams was including projections for the new M-to-M transfers in his statistics and thought that everyone else knew it. To the contrary, however, the court is equally convinced that the other administrators did not understand this fact.
The administrator in charge of implementing the Mto-M program initially placed no limitation on the number of M-to-M students Lakeside could accept. After reviewing statistics from the planning office, he noticed :l space available for 75 students and arbitrarily established a limit of 110 students. According to his testimony, Bouie would have established a maximum enrollment of 1595. When questioned about the 110 limit, Bouie removed the limit. Thereafter an unexpected large number of M-to-M applicants sought admission into Lakeside, but were refused admittance because their presence would place Lakeside over its computed capacity of 1560.s The transition from no limit to a maximum enrollment of 1595 then to no limit and finally to a maximum enrollment of 1560 demonstrates that school officials did not fairly, uniformly and accurately apply the 26/1 ratio in administering the M-to-M program at Lakeside High School.
Therefore, for the foregoing reasons, the court is compelled to grant relief to tht;~ plaintiffs. The court therefore confirms its oral order of August 31, 1983 directing the defendant, DeKalb County School System, to accept
3 The capacity of the high school was computed by the following formula:
Total number of teaching stations minus the number of s·,..ecial education rooms multiplied by the figure of 26 students per station equals the capacity of the school. Applying this formula reveals that the capacity of Lakeside is [63 (total stations)-3 (special education)] x 26 (students per station)= 1560 (total capacity).

161
students on the M-to-M waiting list for attendance at Lakeside up to a maximum enrollment of 1595.
IT IS SO ORDERED this 8th day of September, 1983.
Is/ William C. O'Kelley
c. WILLIAM O'KELLEY
United States District Judge

 
 162
IN THE UNI'I'ED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
(Caption Omitted in Printing)
MEMORANDUM OPINION [Filed Feb. 22, 1984]
In this motion for a preliminary injunction, plaintiffs
seek to enjoin defendants from building an addition to Redan High School.1 After a trial on the merits, the court orally announced its ruling. The purpose of this memorandum opinion is to provide written findings of fact and conclusions of law on the Redan controversy.
Alleging denial of equal protection of the law, plain· tiffs have invoked the jurisdiction of this court pursuant to 28 U.S.C. § 1331. At issue. is whether defendants'
actions in proposing an addition w Redan were discrim-
inatory or designed to promote segregation and to hinder
desegregation in the DeKalb County School System.
In 1969 the DeKalb County School System was con-
verted from a dual to a unitary school system. See Order of November 3, 1976 (requiring defendants to "take
affirmative acl.ion to disestablish all school segregation and to eliminate the effects of the dual school system") . As a result, the freedom-of-choice plan in the DeKalb
t Originally the motion for a temporary restraining order dealt with issues at three schools: Lakeside High School, Redan High School and Knollwood Elementary School. The court bifurcated the issues and decided the I..akeside controversy in September 1983. Plaintiffs orally abandoned the KnoJlwood issues prior to trial. According})', the sole issues remaining relate to Redan High School.

163
County Schools was abolished; all students were required to attend school in the district. of their residence. Subsequently, the court created a majorlty-:to-minority (hereinafter M-to-M) transfer system, in which a student attending a sehool in which his or her race was in the majority could transfer to a school in which his or her
race was in the minority. Implementation of the M..rto-M
program was in accordance with the court's "objective of eradicating segregation and perpetuating desegregation." Order of November 3, 1969. Recognizing that new school site purchases and attendance zone changes would be in· evitable, the court declared that those actionF should further this objective, but also should be considered "in the context of the circumstances existing at the time and the feasibility and practicality of available alternatives." ld.
When a racially discriminatory school system has been
found to exist, the Supreme Court bas required local school boards to "effectuate a transition to a racially non..
_ discriminatory school system." Brown v. Board of Ed'llr.
cation, 349 U.S. 294, 301 (1955) (Brown II ). School boards operating dual systems have been "c1early charged with the affirn1ative 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 ScMol Board, 391 U.S. 430, 437-38 <1968). Each instance of a failure or refusal to fulfill this affirmative duty rontinues the fourteenth amendment violation. Columb'lts School Board t'. Penick, 443 U.S. 449, 459 (1979).
Once a school system has been fully converted from a dual to a unitary system, the Supreme Court has declared: "absent a constitutional violation, there ... [is] no basis for judicially ordering assignment of students on a racial basis." Swann v. Charlotte-!tfecklenbHrg Board
of Education, 402 U.S. 1, 28 (19711:.: To recover for a
2 In Swann, Chief Justice Bur~er emphasized the limited involvement by the judiciary in the affairs of the school system aa follows:

164
violation of the equal protection clause, plaintiffs must show not only racial imbalance in the schools, but also "a current condition of segregation resulting from intentional state action." Washington v. Davis, 426 U.S. 229, 240 09761. To rebut this prima facie case, educational authorities must demonstrate that the current racial composition does not result from their past or present intentionally segregative action. Price v. Denison IM.eperui.,ent School District, 694 F.2d 334, 350-51 (5th Cir. 1982).
Examining the question of discriminatory intent, the Supreme Court has ruled that actions having foreseeable
and anticipated disparate impact are relevant to demon-
strate a forbidden purpose. Columbus Board of Education 'tJ, Penick, 443 U.S. 449,464 (1979). "Adherence to a particular policy of practice 'with full knowledge of the predictable effects of such adherence upon racial imbalance is one factor among many others which may be considered by a court in determining whether an inference of segregative intent should be drawn." ld., at 465. ·
To satisfy the burden of establishing a prima facie case, plaintiffs introduced e'\'idence that Redan High School had been operating in excess of capacity since the
1978-79 school year. Rather than redistrict students to
relieve this problem school officials added portable classrooms to Redan on three occasions. Testimony by Assist-
Neither school authorities nor district courts are constitutionally required to make yea.r/hy/year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination • through oftieial action ia eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the school, further intervention by a district court should not be necessary.
Swann v. Chartotte-Mechlenburg Board of Education, 402 U.S. 1, 31-32 (1971).

165
nnt Superintendent William Stewart Adams indicatect that the school ooard had never considered transferring students from a predominantly white school district into predominantly black schools.
The school ooard's proposed solution to the overcrowding problem at Redan was to build an addition to the school. This edifice would be located on property near Miller Road and Covington Highway and would provide classrooms for eighth and ninth grade students attending Redan High School.
It is undisputed that the school board has consistently rejected the concept of middle schools. Currently there are no junior high schools in the DeKalb County School System. Plaintiffs contended that the school board's unusual solution to the overcrowding problem, when consid· ered with the school board's refusal to rezone Redan students and their placing of tempora.ry structures on the Redan campus in the past, dernor:strated defendants' desire to maintain Redan High School as a predominantly white school. This maintaining of th~ status quo, accorr1ing to plaintiffs, infringed upon the right.q of black students at South West DeKalb and Avondale high schools because they were denied the opportunity of attending a more racially mixed school. Therefore, plaintiffs have requested that the court enjoin the building of the Redan addition.
In rebuttal defendants argued that their actions were not discriminatory because (1) plaintiffs' proposed changes of attendance lines were not feasible; (2) except as a last resort, educational reas0ns precluded the transferring of Rtudents to noncontiguous school districts; (3) after considering other alternatives, the school board de-cided that the building of the addition was a unique solution to a unique problem; and (4) rather than promoting segregation, the new addition to Redan would increase

166
desegregation because the school could then accommodate M-to-M transfer students.8
In reviewing this matter, the court must examine whether defendants' actions were unlawfully motivated and were designed to deprive class members of equal protection of the law. Unless plaintiffs have shown the deprivation of a constitutional right, this court cannot interfere with the internal management of the school system. Therefore, this court is not required to comment upon the quality of education students operating under the school board's plan may receive; such determination is confined to the sound discretion of the administrators. In deciding whether defendants' actions are unlawful the court will examine each defense raised by defendants.
Defendants first showed that plaintiffs' proposal for changing the Redan attendance zone had not been feasible. The enrollment at Redan began to exceed its reasonable capacity in the 1978-79 school year. At that time both Avondale and Southwest DeKalb were operating with more students than the respective structures were designed to accommodate. This practice continued at Southwest DeKalb until the 1982-83 school year when there were 60 vacancies. In comparison, Avondale began to have seats available in the 1980-81 school year. Currentfy Southwest DeKalb has 166 spaces available and Avondale has approximately 123. The combined number of 289 ~eats, however, is not sufficient to accommodate the 746 students currently exceeding the capacity of 1560 at Redan.
The evidence further shows that these two schools have not been able to fully satisfy the overcrowding problem at Redan in the past. For example, in the 1978-79 and 1979-
80 school .vears neither Avondale nor Southwest DeKalb '
s Since 1979 students wishing to participate in the M-to-M program have not had the opportunity to request attendance at Redan because the school was overcrowded.

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could accept additional students because they were both over capacity. In the fall of 1980, Redan was overpopulated by 522 students. Even though Avondale had 53 spaces available, Southwest DeKalb was· not able to receive any additional students. Although the number of seats available at Avondale increased during the following years, the student population within the Redan district also increased. For example, in the 1982-83 school year, Redan had an excess of 542 students; the combined number of seats available to Southwest DeKalb and Avondale totaled only 170. Similarly in the current school year, Redan has approximately 746 students more thEm the reasonable capacity of 1560. The other two schools have space available for a total of 289 students. Therefore, rezoning students from the Redan district into these two schools was not feasible at any time because this solution would be only partially remedial in nature.
Even if sufficient space were available to Southwest
DeKalb and Avondale, the court finds that meritorious reasons exist for not changing the attendance zones. First, the evidence showed that the majority of the indigenous black student pop11lation in the Redan district reside in the southern portion of the school district. Since the Southwest DeKalb school district is south of the Redan district, a reasonable rezoning of students currently residing in the Redan district would have the effect of
removing virtually an the indigenous black population
from Redan and increasing the number of black student~ at the predominately black Southwest DeKalb High School. Clearly, this change would promote segregation in both high schools.
The rezoning of students currently residing in the Redan district into the Avondale district. would be equally unacceptable. Unlike the Southwest DeKalb district, which is contiguous to the southern boundary of Redan, the Avondale district only intersects with the Redan district at one point. If the court changed the attendance

168
lines and required students residing in the northwestern corner of the Redan district to attend Avondale High School, th~e students would have to travel through the Towers High School district before they entered the Avondale district. Since noncontiguous rezoning has generally been condemned except in the most extreme circumstances, this court finds that the transferring of Redan students to Avondale would not be feasible or practicable because a less strident solution to the problem exists.
The school board further defended the reasonableness of its proposed erection of the Redan addition by presenting the following evidence. Testimony by school officials revealed that defendants had attempted on three occasions to seeure permission from the Bi-Racial Committe to construct a new high school on property located near Stephenson Road. In each instance the Bi-Racial
Committee refused to permit the school board to purchase
the property. In addition, defendants considered building additional classrooms on the existing Redan campus, but discovered that the construction would violate state building code regulations.
The building of an addition to Redan or1 a separate campus was a unique solution to a unique problem. In
the history of the DeKalb sChool system there had never been overcrowding at any school to the extent of the current situation at Redan. The building of the new edifice not only would eradicate the over-capacity problem at RP.dan High, but also would provide 1\f-to-M students with the opportunity to transfer to Redan, which has not received M-to-M students since 1979.
The above reasons by the school board persuade this court to find that the school board's decision to build the addition to Redan was not motivated by unlawful racial considerations. Having found that the school board's decision was not unconstitutional, this court is not required to evaluate the educational benefits that may arise .from

169
the construction of the Redan addition. Furthermore, the court will decline to examine whether plaintiffs' proposals to the overcrowding problem would provide for better educational growth or more integration in the school system because ~'absent a constitutional violation there . . . [is] no basis for judicially ordering assignment of students on a racial basis." Swann v. Charlotte-Mechlenberg
Board of Education, 402 U.S. at 28. Since plaintiffs have
failed to demonstrate that defendants contravened their rights under the equal protection clause, the court denies plaintUTs' motion for a preliminary injunction.
In summary, the clerk is directed to enter judgment in favor of defendants and against plaintiffs. The motion for a preliminary injunction on the Redan issue is denied. Prior to trial counsel for plaintiffs abandoned the portion of the motion dealing with Knollwqod Elementary Sea'lool. Accordingly, no ruling on this portion of the motion is required.
IT IS SO ORDERED this 22nd day of February, 1984.
Is/ William C. O'Kelley WILLIAM C. O'KELLEY
United States District Judge
,

 
 174
UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT
No. 84-8286
WILLIE EUGENE PITTS, et al., Plaintiffs-Appellants,
v.
ROBERT FREEMAN, et al., Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Georgia
March 22, 1985
Before VAN<fE and ANDERSON, Circuit Judges, and PITTMAN*, District Judge.
PITTMAN, District Judge: In 1969, the district court issued a desegregation order that required the defendants to dismantle the pre-
viously dual school system and to institut~ aunitary sys-
tem. In 1983, the black plaintiff class filed a motion in that proceeding to enjoin the defendants from expanding and constructing certain school facilities to relieve overcrowding at the Redan High School. In ruling on that motion, the district court, without giving notice and
*Honorable Virgil Pittman, U.S. District Judge for the Southern District of Alabama, sitting by designation.

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holding a h£:aring on the issue, stated that the DeKalb County School System was unitary. It proceeded to find that the defendants did not act with diseriminatory intent and denied the injunction. The plaintiffs appealed. They contended the district court erred in characterizing the DeKalb system as unitary and in making proof of discriminatory intent a requisite to affording requested relief. Ws agree and reverse and remand for further consideration.
The plaintiffs rai~ed these three issues:
I. Whether the district court erred in holding that the DeKalb County School System was a unitary system and that plaintiffs were therefore required, under the Fourteenth Amendment to the United States Constitution, to show purposeful discrimination in order to prevail.
II. Whether the district court erred in holding that plaintiffs must prove purposeful discrimination to prevail since the complaint in this action is predicated on Title VI of the 1964 Civil Rights Act and the i'egulations thereunder, and proof of invidious motives need not be shown in connection with such claims.
III. Whether the district court was clearly erroneous in finding that the pla ~ntiffs had failed to show purposeful and intentional discrimination and whether the court's tindings were inadequate under Fed.R.Civ.P. 52.
We resolve issue I in favor of the appellants. Issue II was not addressed by the district court nor is it necessary to be addressed by this court. It may be appropriate to address it on remand. Jssue III is moot because of the court's holding on the first issue.
The plaintiffs, in a black class action, originally instituted this action in 1968 against the DeKalb County Board of Education and various school authorities al-

176
leging that the DeKalb Copnty School System was unconstitutionally segregated on the basis of race. The school system at that time operated under a "freedom of choice" plan. Although each school had ·a corresponding neighborhood school attendance district to delineate which students were to attend which school, students were free to transfer to schools outside their attendance district. The action resulted in a 1969 desegregation order that required the defendants to dismantle the previous dual school system, to eliminate its effects, and to institute a unitary system. The court ordered that all students be assigned to the school in their respective neighborhoods. Students thus were required to attend the school located in the attendance district in which they resided. Each attendance district contained only one school. The attendance districts served no other purpose than to delineate which students were to attend which schools. The district court retained jurisdiction to oversee implementation of the order. The court exercised this jurisdiction several times during the succeeding years to enter orders on matters brought before it by motion. This appeal arises from such an order in which the district court refused to enjoin the expansion and construction of certain school facilities· proposed by the school board to relieve overcrowdi~g at Reda::1 High School.
Redan High School, which has a. predominantly white student population., has been operating in excess of its capacity since the 1978-79 school year. The number of students attending Redan has continued to increase at such a. rate that they exceeded the school's capacity by 808 students in the 1984-85 school year. As an interim
solution to ~his overcrowding problem, school officials
have added portable classrooms to Redan on three occasions. As a more permanent solution, the school board decided to construct a new facility to accommodate the excess of students. Under this "Redan II" plan, Redan's attendance district would remain unchanged. Students in the tenth through twelfth grades would continue to use

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the existing Redan High facility, while students in the eighth and ninth grades, who previously would have attended Redan High, would use the new facility. This arrangement would be unique in DeKalb County because it has no middle schools.
The plaintiffs in 1983 filed the motion that is the subject of this appeal seeking to enjoin the defendants from expanding the capacity of Redan High School by adding portable classrooms and constructing a new building. The plaintiffs alleged that the increased capacity of Redan, which would accommodate the existing overflow of white students there, avoided reas..~ignment of those white student~ to nearby undercapacity high schools that were predominantly black. The school board's solution to the overcrowding, the plaintiffs argued, was intended to avoid desegregation and indeed wnulrl have a segregative effect. 'l'he '9laintiffs argued that this avoidance of segregation -even if unintentional-violated the 1969 injunction requiring that the construction and expansion of school facilities be carried out "with the objective of eradicating segregation and perpetuating desegregation." Pitts v. Cherry, Civil Action No. 11946 at 7 (N.D.Ga. June 12, 1969) (currently sub nom Pitts v. Freernan). The plainttifs proposed several alternative solutions to the Redan overcrowding problem. These proposals sought to relieve the overcrowding by redrawing the boundary lines of certain of the schools' attendance districts. The attendance districts as redrawn under the plaintiffs' proposals would require some students, who previo,lsly would have attended Redan, to attend other, undercapacity high schools within the DeKalb County School System. Unlike the defendants' plan, the plaintiffs asserted, these proposals would have a desegregative effect and would carry out the defendants' duty to eliminate the vestiges of its previous dual school system.
The district court, after a hearing, refusing to enjoin the planned expansion of Redan High School on the

178
grounds that the defendants' actions were not motivated by discriminatory· intent. The court asserted at the outset that " [i] n 1969 the DeKalb County School" System Wa8 converted from a dual to a unitary system." Pitts
v. Freeman, Civil Action No. 11946 at 1 (N.D.Ga. Feb.
22, 1984) (emphasis added). It is undisputed that no
hearing with notice had been held to determine whether the DeKalb County School System had been converted
to a unitary system. The court proceeded to hold that in reviewing the planned expansion of Redan High School, it had to "examine whether defendants' actions were unlawfully motivated and were designed to deprive class
members of equal protection of the law." Id. at 5. "At
issue," the court stated, "is whet.her defendants' actions in proposing an addition to Redan were discriminatory or designed to promote segregation and to hinder desegregation in the DeKalb County School System." ld. at 1. The court then found, on the basis of the evidence presented, that the defendants' decision to expand Redan High School "was not motivated by unlawful racial considerations." ld. at 8. It thus denied the plaintiffs' motion for an injunction. The court. expressly declined to
examine whether the plaintiffs' prt ,osed solutions to the
overcrowding would provide for bet~ educational growth or more integration in the school system. ld. at 9.
The plaintiffs appealed, ·contending that the district court erred in characterizing the DeKalb County School System as unitary and in making proof of discriminatory intent a requisite to affording the requested relief. This court agrees, and, therefore, must reverse the district court's decision and remand the case for further consideration.
A line of Fifth Circuit cases 1 established the procedure to be used in this circuit in bringing school de-
1 Decisions of the old Fifth Circuit are binding precedent in this circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209-11 (11th Cir. 1981) (en bane).

179
segregation cases to a conclusion. See, e.g., United States v. Texas Educatioo Agency, 647 F.2d 504 (5th Cir.1981) (Unit A), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982); Lee v. Macon County Board of Educatioo, 584 F.2d 78 (5th Cir.1978). The courts consistently have recognized that a previously segregated dual school system does not automatically become desegregated just because a constitutionally acceptable plan is adopted and implemented. See, e.g., TexaJJ Education Agency, 647 F.2d at 508. District courts must retain jurisdiction over such cases to insure not only the implementation of the desegregation plan but also "the achievement of the ultimate goal-a unitary school system in which the State does not discriminate between public school children on th~basis of race." Lee, 584 F.2d at 81. In order to conclude a school desegregation
case, a district court must hold a hearing to detennine
if the school system indeed has achieved unitary status. Texas Education Agency, 647 F.2d at 509; Youngblood v. Boord of Public lnstructicm of Ba,y County, 448 F.2d 770, 771 (5th Cir.1971). The plaintiffs should receive notice of the hearing's purpose, and the hooring should give them an opportunity to show why the court should
continue to retain jurisdiction. Texas Education Agenry,
647 F.2d at 509.
The district court did not follow these procedures in the case at bar. Its characterization of the DeKalb County School System as unitary was error. As the defendants suggest, it is possible that the district court did not intend its use of the word "unitary" to be equated with the unitary status that requires dismis~al of the . action. The court may have been stating merely that a constitutionally acceptable desegregation plan was implemented in 1969 thus making the school system unitary in some respects. Yet the district c-~urt committed error by applying the wrong standards of proof when it proceeded to require the plaintiffs to prove discriminatory in-

180

tent, a requirement that ordinarily would be appropriate on.ly after a finding of full unitary status.

Until the DeKalb County School System achieves unitary status, it has an affirmative duty to eliminate the effa..<>ts of its prior unconstitutional conduct. The United States Supreme Court has held that a previously segregated school system is under an "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." Columb'U8 Board of Educatiw, v. Penick, 443 U.S. 449, 459, 99 S.Ct. 2941, 2947,
61 L.Ed.2d 666 (1979), quoting Green v. County School
Board, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1693-94, 20
L.Ed.2d 716 (1968). See GraveB v. Waltoo County Board of Educati()')l,, 686 F.2d 1135, 1143 (5th Cir.1982)
(Unit B) . The Court has applied this duty specifically to the construction of new school facilities:

In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are r.ot used and do not serve to perpetuate or re-establish the dual system.

Swann v. Charlotie-Mecklenburg Board of Education, 402 U.S. 1, 21, 91 S.Ct. 1267, 1279, 28 L.Ed.2d 554 (1970) (emphasis added). See Lee v. Autauga County Board of Education, 514 F.2d 646, 647-48 (5th Cir. 1975). The district court's 1969 desegregation order in this case applied these duties to DeKalb County:

To the extent consistent with the proper operation

of the system, the County Board will, in locating and

designing new schools, in expanding existing facili-

ties, and in consolidating 8chools, do so with the ob-

jective of eradicating segregation and perpetuating

desegregation.

?

181
Pitts v. Cherry, Civil Action No. 11946 at 7 (N.D.Ga. June 12, 1969) (currently sub nom Pitts v. Freema.n). Therefore, the DeKalb County Board of Education has an affirmative duty to solve the Redan High School overcrowding problem in such a way that it furthers desegregation and helps eUminate the effects of the previous dual school system.
In light of the defendants' affinnative duty to desegregate, it was error for the district court to hold that the defendants' planned expansion of Redan High School could be enjoined only if it was motivated by discriminatory intent. Until the DeKalb County School System achieves unitary status, official action that has the effect of perpetuating or reestablishing a dual school system violates the defendants' duty to desegregate. See Wright v. ClYUlncil of City of Emporia, 407 U.S. 451, 460-62, 92 S.Ct. 2196, 2202-03, 33 L.Ed.2d 51 (1972). Accord Co-lumbus Board of Educaticm, 443 U.S. at 459-60, 99 S.Ct. at 2947-48. That duty likewise is violated when the school board fails to consider or include the objective of desegregation in such decisions as whether to construct new facilities. See Lee, 514 F.2d at 647-48. Therefore, if expanding the capacity of Redan High School would increase or perpetuate segregation as the plaintiffs t!laim, the district court should have enjoined the expansion ; or, if expansion plans and construction have mooted that question, it should have enjoined the use of the facility as planned-regardless of the ·defendants' lack of discriminatory intent.
We do not hold, however, that the defendants' affirmative duty compels ~hem to adopt the most desegregative alternative available. That position was rejected by this court in Lee v. Annison City School System, 737 F.2rl 952 (11th Cir.1984). There we affirmed the district court's approval of a new construction proposal which was proposed by the school board in good faith, and which, although the court assumed that the plaintiff'~

182
proposals would acmeve even greater desegregation, would ctachieve greater desegregation within the limits of practicalities such as funding and transportation." ld. at 957.
Therefore, this court must remand this case for the district court to do what it expressly declined to do before: examine the segregative and desegregative effects of the defendants' actions. On remand, the district court should study plaintiffs' and defendants' alt:El,rnative solutions to the overcrowding problem to find the solution
that best solves the problem in light of the vaJid educa-
tional concerns and other practicalities voiced by the defendants if the system is attempting to achieve greater desegregation. This court doe& not hold that the district court on reconsideratiorz. must enjoin the planned expansion of Redan High School if plans and construction of the facilities have mooted such action; however, the defendants will proceed at their own risk. One result could be the enjoined use of the facilities as planned.
Several of the di.strict court's factual findings argue in favor of the defendants' plans. The district court relied on erroneous standards in drawing its conclusions. It may be that these plans would have a desegregative effoc-t or would have less long-term segregative effect. The court remands the case to have the district court review the defendants' actions under the proper standards.
Because this court remands this action on the basis of the district court's misapplication of an intent standard, it does not address the second or third issue.
REVERSED AND REMANDED for proceedings consistent with this opinion.

 
 DOCKET ENTRIES

DATE

- PROCEEDINGS

1968
July 6 Complaint filed. Summons issued & delivered to
U.S. Manhal.
11 lfat;maJ's return of service_ executed as to DeKalb
Co. Brd. of Ed., Dr. Ja& H. Hinson, Jr., Jim Cherry, Supt. :khools 7-9-68, filed.
29 ANS'W· i:R of DetendaDts, tUed.
Sept. 2:1 Pitts' tnoti~n for pre]iminary injunction, with memo. iD ~port ftlecL
Ol'der t.'u;.:!· defts.. show cause at 2 :00 p.m., Oct. 10, 1968, why >ltf~' motion for Pftliminary or pennaDeBt iDj~:.t\oD & for ~Jl&ble attYs' fee should
not be lft.TUd & that· deft&. be served copies of
order forthwith, ftled. CopyJtO counsel.
Oct. 2 Per ME, notice to coUDSel that; above hearing has beeD reset for Friday, October 11, 1968, at 3:00P.M.
10 Alklavit of JDf CBBBBY, filed.
KemoraJKtum in opposition to pltfs.' mot. for pre-
liminary or permanent injun~on, ftled.

11 Came on for hearing, but hour being late, court stated would be set for later date.

' 22 Ct. reporter's stenotype notes filed. .
28 Transcript of proceedings of 10-11-68, filed.

31 Per·tnt:, set for further hearing on pits. motion for preliminary injunction on Thursday, November 14, 1968 at 2:00 P.M., counsel notified.

Nov. 8 Per NE, above hearing reset for Thursday, December 12, 1968 at 10:00 A.M., counsel notified.

Dec. 9 Per NE, above hearing reset for Friday, December 20, 1968 at 10:00 A.M., eounsel notified.

i.

2

DATE

I
PROC~EDINGS

1968
18 Per NE, taken oif .for above hearing, to be reset at later date. Notice to counsel.
1969
Feb. 18 Per ME. set for heariJ/lg on pits. motion for pre-
liminary injuuetion on TuesdaJ~ March 4, 1969, at 10:00 A.lf., eousel DOtifi~.

26 Per NE, notice t.o eoUDSe1 removing ease from above hearing, to be set at·a later date. (request made by eoUDSel for eontiJiuaDee)

Mar. 7 Per NE, notiee to COlUUiel· that ease is set for heariDg on pita. petition fQr ·~ injuetion on
Wednesday, April t, ua, at t:oo P.11.

Apr. 9 BEARING on pltls' pet.. fOI'cRrelimiDal'Y injunction.
Deft& adflsed they had·Jalt ~Y adopted a plan
of deaeaBtiou. &: et. eJiteete4:#Jey get eopy of plan to pltfs. by )lou., ApJill4, 1949, that pttrs. ~e
response by llouday, April 21, 1969, & then SUB-
lilT to ct. at that tlibe for stady. Case set for fur-
ther hearing on Mou., April28, 1969, at 2:00p.m.

10 Court reporter"s steno notes of 4-10-69, ftled.

21 Transcript of hearillg on 4-9-69, 1lled.

22 SUBMITl'ED PER DOCKET E~Y OF 4/9/69.

28 Defts' response to pltfs' objections, in form of letter, with two attaehments (memo11Ulda), ftled. ToNE.

29 Further hearing had as cont'd. from 4-9-SQ. Court took case under consideration.

May 20 Transcript of hearing on 4-80.69, tiled. To NE.

21 Court reporter's steno notes, filed.

8

DATE

PROC~DINGS

1969 :May 'J:t

I
'
Order direetiag Horaee iBohiQIJIAD, Actiag Reg. Dir.
for Civil Ri~ Dept. ~~ H~ Edueaijon & Wel-
fare, At.laDta, (;&.. to ~ ij.;this eourt as a wit-· "" . · , ~1·, :'-'.'\·;,',:·:; < • : ' .,._,,:..
- - OD Wed., ..,. 28,. ~...~ltif:':80 a.m., ftled. Copy delivend.to u.s.~ Oo)?iiato couDsel.

28 June 12

BBARING BAD ON i :M<YIION FOR INJUNC.

TION: Court took the eaae··llJldir conaideration.

w

•

• • ~" .- 0 $<." •. ., ·;·

OBDBR <.uowm.r. ·»eM,·~ Authorities .to
se'leet cme of.fbe -·~vee to be adopted)' 81id llJDOifBNT .-...~ A .ftled. Court retaiDS

~ Cow• to . . . . .

17 llanlaal's ·retam of se.r9ice oa Order of Court exe- caW· ell .....,. . . . . . .

26- TBANSC&JPT of lleariJag 1-28-69, ftled.

29 Steno notes of llq 28, 1969, ftled.

Oct. 18 Reports of ctefta. priJ'8WUlt to order of 6-12-89 ftled.

1970
Jab' 21. :Report of deft& priJ'8WUlt to order of court, ftled.

Sept. 28 Beport of de.ft& priJ'8WUlt to order of court, iiled.

1971

July 14 Reports of deft&. pursuant to order of 6-12-69, filed.

Aug. 20 .Motion for Further relief by Jolm D. Harper, ftled.
(C to Mr. Candler Per JSW)
26 Response to appeal (above motion) by defts., filed.

Sept. 7 SUBMITTED ON MOTION FOR FURTHER RELIEF BY JOHN D. HARPER.

Oct. 19 Deft's. response to section 6(e) of order dated
6-12-89, filed. To NE.

DATE

PROCEEDINGS

1971
2"1 Order ftJed diamissiDa' the Appeal of John D. Harper.
eo,. tO eomtael.
Nov. 24 John D. Harper's Notlee of Appeal, ftled. e. to coun·
sel/eert. e. to U.S.C.A. w/e of docket sheet.)
Dee.. 2 loJm D. Harper's AIIBNDED NOTICE OF ~:P­
PBAI., ftJec1. (Copy to coUDBel & U.S.C.A. w/copy .
of docket aheet)
11 UCORD ON APPEAL ·TO U.S.C.A. via Beg. mail. ILR. ACK. (CoaDael advfled)

Feb. 10 Cert.. Copy of Order of U.S.C.A. granting appellees' motioD to diamiaa the appeal, illed. (copy to counsel,
2/10) Pile retamec1.
Mar. 18 Order of U.S.C.A. deDJiug appellaDt'a motion for NeODaideratioD of U.S.C.A. order dismissing the
appeal, filed. copy to eouuseJ. by Clk. of U.S.C.A.
J~ 21 BeportotPJke CoaatyPablie··Sehools, illed.
Report of Deka1b Couaty Board of Education, tUed.
28 Pltf'a motion to f011801idate aetiou with C.A. 16708, to add parties cJeft.. aDd for leave to ftle a supple-
meatal ad amended eomp1aint, & pro}iosed supple-
11le1dal and amended complaint, filed. (Copy to each iaclle)
lub- I Ottnft (SOl\ that l)(tt'a motion t.6 eaMolidate actioDI, to add pill'titl deft. & for leave to file a
8tlpp1emental & ~. complaint are hereby
At.LOWRD AND OIJDI!Iltm PILeD. auhJeet to objeetion, FUJlTBBR: ORDERED tbat the Harsbal
of this Ct.. serve all 'parties named as additional parties defts. &-not pftwiously before this Ct. in the original three principal aetious sought ·to be eon-
solldated herein. filed. (Copy to counsel and eaeh judge) Plt/'B supp~mental " amended complaint,
ftled. (Cpy to)

6

DATE

PROC~EDINGS

1972

11 Summons issued on add'! party defts. & del. to U.S. :Marshal.
Onler ext. time tbru 7/21/72 for responding to the :Motion to coDSOlidate, filed. (Copy to counsel &)
10 ANSWER of Atlanta School to Pltfs' amended complaint, filed.
24 Response to motion to consolidate, filed.
21 RespoDSe of the Board of Education of Cobb County
to motion to consolidate actions, to add parties deft.
aud for leave to file a suppl. and amended complaint, filed.

81 Clayton County defts' response to supplemental and
amended complaint, filed.
Response of The Board of Education of Clayton County to motion to consolidate actions, to add patties deft. and for leave to file a suppl. and amended complaint, filed.

Aug. 22 Letter report of deft. with two maps & ltr. by pltf's eoUDSel adv.ising there are no objections to the attendance zone changes, filed.
Order approving deft's requested changes in attendance areas for the DeKalb County School System and the changes may be invoked for the 1972· 73 school year, filed. Copy to counsel.

Sept.12 Pltfs' Memt•randum of Law, filed.

Nov. 17 ORDER by S judge panel that all proceedings are stayed unti! further order of this court, except insofar as a single-judge Ct. may remove stay for discovery .or other motions not relating to the request for a 3 judge panel or the motion to dismiss on the question of relief, filed. (e. counsel)

6

DATE

PROCEEDINGS

1972

ORDER that stay is lifted for following purposes
& conditions of discovery: (1) Defts. are to furnish
Pltfs. with following info for the school year of
1972-78 (2) such responses may be written form or
data maps & records (8) Defts. granted until1/1/73
to respond in writing or until 12/1/72 to set date for pltfs' counsel to inspect records during Dec.
(4) except as provided in 2, the motions for protecti~er of defts. are granted, stay is con't as
to all other discovery & motions until further or-
der, filed. (c. counsel)

Dec. 15 Pltfs' motion to vacate stay, with brief & Exh.
B, filed.

29 Response of The Cobb County School Board to Courts' Order of 11/17/72, with Exh. A & B, filed.

1978

- Jan. 3 ORDER by three judge panel :filed DENYING the
motion to vacate the stay previously entered on
11./17/72. Copy to counsel.

9 Response of the Dekalb County School Board to
Court's order of 11-17-72, with exh. A&B :filed.

June 28 Pltfs' motion to vacate stay, with brief & attachs.
filed. (Attachs. in C.A. 16708 only)

July 16

Three--.Judge Order filed-directing parties to file briefs within 15 days as to whether the question as
amended still presents a three-judge question; after
such determination, the court as then constituted
will rule on the motion to vacate. (copy to counsel,
7/16)

18 Memo in support of defts' opposition to pltfs' mo-
tion to vacate stay & response of defts. Cook, et al in opposition to pltfs. motion to vacate stay, filed. Copy to each Judge.

7

DATE

PROCEEDINGS

1973

31 Supplemental brief of Cobb County :&tad of Education, filed.

Brief of pltfs. in opposi~on to a 3 Judge Court, ftlP.d.

Aug. S 24

Plfts' second brief in opPosition to motion for a 3 judge Court, 1lled. (e. judges)
Order directing that this case proceed simultane-
ously before a three judge panel of Bell, Smith &
Moye and as a single judBe coltrt before Judge
Smith;' setting hearing for ~26-13, at 10:oo· A;M.,
& lifthlg stay Ulltil further ol:'der of this oourt, filed. (Copy to Counsel & SK & JFE &.14)

29 Pltfs' motion to shorten time for answering interrogs., with interrogs & pltfs' motion to compel an-
swer, flied.

30 ORDER directing that above interrogs. be ans. by 9/10/78, filed. (e. counsel)

Sept. 5 Letter dtd. 8/22/13 from the l•w firm Weekes, Candler & Sams, representing the Dekalb County Board of Education, advising of· the changes in six zones re schools, filed.

10 Buford City Board of Education's Answers to Interrogs., filed. 16708

11 Alonzo A. Grim, Superintendent of Atlanta Public Schools' answer to pltf's interrogs., filed.

12 Answers of Dekalb County Board of Education To Pltf's Interrogs., filed. Copy to each judge.

14 Motion of Pltfs. Armour, et .a1 requesting Hon. Griffin Bell To recuse himself from C.A. 16708,
filed.

Brief in support of above motion, filed.

ANS. to pltfs. interrogs. by deft. Cobb County
. School Board, filed.

s I
-"""s::~A;==TB=;==·===~=""==""="=~.~~=."="IN==OS=.= = =

lt'IB

•-:wet•, 'fteJJoard".".~" 17 ADMee. tiR oGfa. to PJW ----:- ~ =- .·= ,"".ll" o"'a•"":I:""l"e"."ao.·f The City of

,.

"

"

"

"

"'

"

'

J

-

-

00
~. l.abMtaNPrUoIJfeA.loM.•o... .At.o ".wodeJit ""'=·=··0·0·", 0•··0• 11, 8•7·. -,"-··•.taw~ ta"*"" #I; fotlefdA. t-
....PlW (.Anaoar, etal) ~ofProofwith attaeha.,

• ..... pmtr..,ftW.

,••,.._toct•ev•

JblealiadDiofiNIII. . .

Od..

-
16

Tlaaseript of proeeeliup W ·t-26-78, aled.

(In

18188)

'

a..-. Oet. 16

to tbe . . . . . of, pJvof of the various

p1tfa' by .... The ...._ Jlf!ltalb Coaaty, Cobb

COatJ, City of~" Clt;'ot Buford BIJd CJay..

toa Co&UA7 with attae-JJmellW, lied. (Ia 16708)

17 SVBitlfTED PUBSUANT TO ENTRY OF 9•26-
'11. (Did not aellCl Ble) '

28 Beapoue of Atlata "~ of Education to Proft'ers
of Pltf., tnecl. (Dup.. to NE)

Letter from law finn Of Weekes, Candler & Sams
stating tbat report attaehed to same was in response to" an Order of" the courl, tl1ecL ,

9

DATB

PR~BDINGS

1971 M
Nov. I

<A....,. BBBPONSB of deft. Faltcm

Board of Edu-

ealloa to )JI'Oifen of pJfta. Armour, et aL ftled on

9/llfll ad l/18/'18 . - to proffer of pitt. in

DO& 8288, 1J880 . . . 11HfJ 8Jec1 OD 9/26/18, flled.

Aalwen of Gwbuaett Coaraty Board of Bdaeation
to CJUeetfoM propoaJICiecJ bJ' the Court on 9/28/18,

Awiatlhw·er-to·qa-al.tlo.a.a.~ . by the Court by:
(1) Tile State Delta; (I) fte DeiCalb County Delta; (I) Tile ClaJtoft Coaat, Dlfta; (4) The CltJ of Marietta Delta; (I) The Cit7 of Atlallta
Delta, wltla· appeadls, lied. (Ia C.A. 18108)

8 Pitta' reJPOIIIBJ to qaeatlou propomaded by the Cout,IW.

Pltfa' )ftft'er of proof {pabUe housing), with Ap... peadix A, ftlecL

stJBIIl'1'T8DPUBSUA!ft'TO ENTRYOF 9/28/78, "QOBSTIONS PBOP011NDED BY THE COURT".

'1 ADnw of Deft. PuJtoD Co. Board of Edaeatfcm of
qua propouded by the Court· with Exhibit A, B,
C, C-1, aD4f C.J, ftJed. TO 80S (in 16708)

AJunreto of Deft.. Cobb Co. Board of Education of
quea. ~ by the Court with Sxbibtta A. and
B, ftled. TO SOS (in 16108)

12 Aa8wen of deft Bufol'd City Board of Education of Questions Propounded by the Court, filed. (In 18708)

14 Pltf's responses to questions propounded by the court, ftled. (in 18708)

1974

Supplement to proffer of proof filed 9-24-78, by pltfs", filed.

July 81 Pltfs' Motion To Vacate Stay & For Hearing with memorandum, ftled.

10

DATE

PROCJEDINGS

1974

Aug. 22 SUBMITTED ON PL11"S :MOTION TO VACATE STAY & FOR HEARING. (pretains to C.A. 16708
ODly)

Sept. 23 File returned from NE;. Ruling forthcoming from
GBB

Oct. 8 Pltfa Motion For Leavr "o Withdraw Supplemental
and Amended Complaint, ftled.
11 Pltfa' Motion To AmeDd Complaint, with Proposed ~- Af~Un~dmat 'l'o Co#tpWftt, 1l1ed
23 ORDER (TIIBEE JUDGB) GRANTING pltfs' motion to withdraw their pl'e'riOusly ftled motion to C01180Udate, at4 parties· deft, aupplemental and
ameJlded eompJalat, w/o prejudice, ftled. (Copy CouDsell0/28)
80 Copies of Order ftled 10/28/'14, mailed to Philip F.
IDteridge & Wm. FnmJdin Dykes High School PTA, retumed.

19'16

July 81 Letter from the iaw finn of Weeks, Candler & Sams with attaehmeDts in reapGDSe· of Court Order of 6-12-69, ftled.

Sept. 8 Pltfs' motion for preliminary or permanent injunction with brief and attachments, filed. NE

Pltfs' motion for supplemental relief with brief,

filed. to NE

.

9 BEARING: On petition of several of the class as
to why their children ~not be transferred under the M to il system within the school district. Court verbally ruled that on the issue of :M to M transfers, the issue-is not moot, and on the question of faculty,
the court took that matter under consideration.

Sept. 1'1 Steno notes of hearing had 9/9./'15, filed.

11

DATE

PROCJ$DINGS

19'16

19 Plt.fa' Motion For Preliminary Or Permanent Inj11Detion filed 9/8/76 returned from NE unsigned, ne'd.
26 SlJBJII'rrED TO NE ON PLTFS' MOTION FOR PBELDIINARY OR PEIUIANENT INJUNC-
TION.
Oet. 80 Letter 4td 10/16/76, from Weekes, Cedler & Sama, with attaChments, tlled. (ToNE 11/S)

19'16

Jan. 12 Notiee to withdraw as eouuael of Boward :Moore, ~r. for pltfa', ne'd. (Adviat!d to eomply with Local Bale '11.7)
Mar. 6 lfotioa To Waive A.pplkatkm Of Local Rule '11.'1
6 To P•mit The With4ta'WlQ. Of Boward Moore,
Jr., 6 Eliabeth JU»c)4(..J)f; ,... ·CoUDaei.Of. Record
For Pltfa', with brief.Bihtblt & Motion Td With·
dnw Aa Couse1, Atldatlt, ~ ·(To··Nil&/9)
16 OB»EB ft1ed GJWtfl'JHG~;:,.~iJlts; ;n,quest .for waiver of tbe DOtke ~. of Bule 71.7 & GltANTINGtbe·.~·ot<H~ Moore, Jr. & BJbal»eUi BUac181topf to· wltba.-aw as counsel of record for pltfa. Copy to ebUDael.

16 Defts' brief in opposition to waiver of Local Rule '71.'1, ftled. To NE.

May 11 "

ORDER that clefts' brief in opposition to waiver

of J..oeal Role '11.'1 be trated as a motion to reeon·

aider, DENY1NG same, ·ftled.. c.e.

.

'

ORl>ER that pJtfa. aubulit Witbill20 days a memorandum outlining the ~Ding.iaauea, ete. & defts.

have 10 days thereafter ito sulmiit a similar memo,

upon the requested memo & the 19'15--76 HEW re-

port this case will be put in a position for resolution

of pending issues, filed. e.e. & e. to RegioD&l Direc-

tor of HEW. ACK

DATB

11'18

Jue I PJtfaf ae100 of 1__. nma.bdaar for Court nsolu-
tlea,tW.

11 SVBJill'l'BD PBB. OBDD OP 1-11-78.

• Deft& •ann of 1-- to •inaolwd. ftled.. to NE

Jab-

I

JAner.·dfd

8/14/'lf,

wltla

I
..

.

.

.

aJaowbaa'

number

~ '•••• to be eaploJed tia •DebJh. School System

,_... of lf'lf, ...... '"
14 JWW.nport tllowbta t1a8 .,ectad umber of stu-
••••• per ac1aool for ~-·--,ete.,lled. NB
...,....,...~....... , .......... ot.effeet
ot ...... 10118e'....·JaD,*Pi.. . , , tied. ME

18

DOoBllle¥dPi.R.b..y.C..A.IfoIr~..t.,i.,lofJ ._..,_._..

ofattv.
clarlr.g

parlo4of 7-1t-71t1ft ,...., ......u. MB

Ja!J •

mNo.lf•o•a

to ..... szttlaa •
twa 01l A11111t'll.

·~ •
Drt·~t.I:OO

a11 peDCt-
P.lrt

Aq. 11 DeiNMflloa .......... Te ........ DoeameDtl &
TldRP To \\'f~Uaali..·Aclaaa, with aebowW,aaaeJlt
.,..,..,... Jdii/D

JJepcaltha 8ubpoella To Proclaee DocumeDta ..t ~·To loe.._hue, fiW. Dllll

••••of 18

Deft. D«aJb Co. tenai118 .whetller

aBd4iO. .Joaf...B..a.a.e..a.tf.O.·. a~ 'a· mot1oa tou

de-
a

ela88·aetlon A to~

the Kovat-

pftf& Moaiea Boeker, et al iWitla britt, 4Jec1. NE

eo. Deft. DeiCa1))

Bd. of Bdaeatloa's motion to

a qaaati motioD for ~ order with brief,

ft1ed. NB

Deft8,. memo in opposition to pltfa' moticms for sup. plemelataJ relief A for ~!W7 or permanent
iDjam.eticm, iUed. :ME

Deftl. objeeticms to movant's request for produc-
tion of doeumen1:s, filed. NB

18

DAD

1t76

Aq, 18 OBDBR . . AlB for . . . tJaat pitt. thaD proceed

.... tile ........ of· ........ of.wmtam A-- A

Jee.·...flitt D~=- te C'1&lh the

. _._..·· .......... _•. ..........•of..~,;..",.·,·. •·•._..

·,.. \),.\.',
.::~~

G- t,.loaer ..J.m..)t.i0.1.1._.to.

••4'&tW·p~tt._...,..

teex-

aPai•• or .a.

.-...

.c.o. .w. ._l

.•••l

l

.......

~,····-··.,daft&
p~~a., tuecL c.c.

a DJI..atJoa of IAIIIIII• .alCPROB 6 WILLIAif

s.·ADA'M8,11ed.

• -e.ou..m...o....o..a,..p•W••'at••..:..._...._.•.._I.Ja.fi.iii.C.ttv.e_..n.h.e.t..

.: : : .

.: :

. .

- .' . .

: . - ·-'

- '~( . : "" ·'W·

. ..

. .. ·,.-

Qwlulto•.
Bai:IDfG

PoaI

•••.,.... ......... for.·ataaatare. tla1loa ol •t~ldler ratio IIi the

...... .,...... Coat' ....... woalc1 ·eater -

......................... •••• bltlda.....
• BIMJI:DfG eollt: C"Auft took up matter of M to K

•

81 JIJIARDfGeoat: COld. 011 ........ of Teaeher·PJaee.

-..at a ldaGol_ lipee. . , _ . cae tekeJI tQider ecm-

~ Pltf& . .,.. • •·toille dJda.St& Par·

tiM
..,

1lave 10
napo-

·dara· to
deeJied.

....... .
.SjtJBIIrr

.
at

, I eD4

daya to Ale of this time.

Coat-t Nletbed·edlbJtL:

i

.

Sept. 2 SlJilKITTliD ON :DBrr. DI:KALB CO. BD·

BDUCATIOM'S •OTJtoN TO DBTBllMINE

-WJIB'.·I'BDAOTIONt····.Tdv.nfl'AINEJ)_....·.·'AS

A CLASS ACTION TO :DltrERK:tNE 1'lm

STATUS 01' THE If ·'VA1'.7 PLTPS. MONICA BOCKEB, ET AL .

14

DATB

PBQCilEDINGS

1S ~a Rpplemeutal brief eoneeming boundary line ~ made ill school attendance zones with attMhmeut.e, ftled. NE

16 stJBJilTTED PER BNTRY OF 8-81-'16.

17 Stao DOtes of proeeedlnp had starting with 8/25/
78. ft1ed.
Oct. 8 Deft's objeetioa to aubstitutioD of parties, filed. NE
14 llotioD of Bebeeea Helldencm to Substitute Parties w/brief &114 proposed older. 4led (ToNE 10/18/76)

2t SlJ'BIUfTBD OM JIOTION OF REBECCA HEN-
DBIBON TO St,1JJSTI'1VI'B PAlr.rmS.. Nov. 8 Opbdoa ....,._ Jlatery..,./tcl·1Dfa-9eDe ad Cer-
tllirlaa Claa· AdloD 1T~ Rule 28(b) (2) and
OBDD • to Jl a Jl: l'ltC*ba (See Order for
...au., fl1ec1. (Copy to Gotmleltl/08/'16)

" OBDD GD11U11s'. •otiOD of.Bebeeea Henderson to
*be lalldtuted aa· a pty· pttt· repnsentiDI herself her mlaor elaJJ4Inal •.·SUIJ8tituted Richard Hen-
de&GD by Bebeea.~ il1ecJ. (Copy to Couneelll/S)

4 Allc1arita for aae iD Hea of illeourt testimony, filed.

Allc1m1: of Jba. Blehant Henderson, ftled.

17 PJ&ta• Jlotkm to Alter or Amend Order w/brief,
Atldavit. of Claude C. George, Jr. and Proposed
Older, ftJed.

24 Delta' Memorandum ill opposition to Pltfs" Motion
to Alter and AmeDd Order of 11/03/76, filed.
Dee. 2 SUBMITTED ON PLTF'S MOTION TO ALTER
OR AMEND ORDER OF 11/08/76.

19'17

Jan. 10 Pltfs' selection of members to the Bi-Racial Com. mittee, filed. (TONE)

15

DATE

PROCEEDINGS

19'17

Deft&' Co1U18el (Gary :M. Sams) letter to NE with breakdown of students in DeKalb Schools by race and by grade breakdown of teachers employed by aehool and race, ftlecL

81 ORDER GRANTING pltfs' motion to amend order of 11/08/'16 to the extent enuneiated in order, filed. (Copy to CouDsel 2/0ltrl)

Feb. '1 Deft&' nomination i>f members to the Bi-Raeial Com-

mittee, tned.

-

12 Deft's memorandum in opposition to certain named
individuals befu«

Feb. 26 Proposed atipulation ext. time thru 4/6/'f'llor plifg to reapcmd to deft8 Memorandum in Opposition to eertalla umed iDdlvlduals being appointed to the
Bi-Racial Committee, ree'd. (To NE for his consi-
ration 2128/'1'1)

Mar. 3 Pltfajllemonmdum in reapoJiSe to Defts' objections t.o Certain of pitts' nOminees to the Bi-Racial Com-
mittee, ftled. To NE

4 Letter dtd S/4/'17, from Roger Mills re:bi-raeial committee, filed. (To Ne 8/'1/77)

80 ORDER that et designates the following people to

serve as members of the ·bi-racial committee which

shall oversee the operation of the county's M-To-M

program and shaD review all proposed school zone

changes or school sit$ purchases (see order for

I

. ~

·.

.

names) ; further defts $hall designate a member of .

its administrative staff to serve as an ex-oftlcio mem-

ber and liason between the school board and the

committee; defts to notify individuals listad •o that
the committee may con~ene as soon as possible, filed.

(Copy to counsel 8/80/77)

16

DATE

PROCEEDINGS

1977
Apr. 12 Letter from poteDtial members of biracial committee, rec'd. :·
Delta' llotion to Alter or Amend Order of 8/29/77 w/Briel, ftJed.
15 Pitta' Reapoaae to defta' motion to Alter or Amend cmler dated 8/lt/7'1, ftled.
SUBIII'ftBD ON .Darts' MOTION TO ALTER
OB AIIB. I1D OBDBB.OI' 8/19/7'1•
18 OBDD DBNYING deft~' mot1011 to alter or amend file 8129/7'1 ~QBIUNG defta to convene a
meelbla' of tile bJ..nebd eoaamittee by 4/26/'17, ftled.
(Copy to Coalel4/18tr7)
... Kay I Letter· from Committee requeating a for .M-To-:M ~ftiect 6 OBDD ext. 11-to-11 application through 5/81/77,

July 1 PIUs' proposed order for Bi-Racial Committee G1lic1e1iDee, rec'd. (TONE wjepy of dkt sheet for
Ida C01I8hteratJ01I 1/617'1)
Aug. 4 Pltl's motioa for Award of Attorneys' Pees, Costs
& Bxpemea With brief, tiled. (To NE)
Aug. 11 Deft's proposed Pl'ocechJra1 Guidelines, ftled.
Aug. 19 SUBifrl'TBD ON PL'tF'S MOTION FOR AWARD
OP ATTORNEY J'EES
Aug. 18 Pltf's ~ motion lor Award of Attorneys' Fees, Coat A Expmsea, with brief, filed. (NE)
Oct. 8 Pltf's Memorandum ~ the Court, ftled. To NE
Oet. 8 HEARING: Cause came OD for hearing on motion
of pltf. 8Dd the Bi-Badal committee to cause the School Boant not to pbt· into effect the present plans for movement of stu4enta ia eertain schools in the
District. Court took the matter under consideration.

1'7

DATE

PROCEEDINGS

19'17
<k:... 4 ORDER that the deft& ehal1 have until 10/10/'17 to file their reapoD«8 to Pltf'a motions for the award
of &UTa fees, eoat .t ~ ftled. (Copy to coun-
sel)

Oct. 6 ORDER APPROVING tbe school board's proposed zoue ehaJJa'ea, ftled. (Copt to coull8el)
Oct. 14 11BSUBKIT1'BD ON PLTF'S MOTION FOR AWARD OF A'rl'OBNBY PEES
Oet. 1'1 DeWs Memorandum in response to pltf's motion for ·Award of AttJ'. Feel, Costa 6 Expenses, flied. ToMB
0et. 28 Steao Notes of p!Oeeediqs had 10/8/'1'1
Oet. 28 stipu1aticm ttt ext. time fbnlll/'1/'17 for pits. to
reapoad to deft8 Kemor811cht1b in. Response to pltfs'
motloa for Attorae.Y'a J'--, wltlt ORDER ALLOW..
JNG, aame, ft1ecL (Copy to~) ToNE
Oct.. 28 DeWa lt.r. in aeeoid&Dee, 'With ~ 1969 Order, en-
e~oa~Jaa a report allowiDr the number of students,
brokell dowD by claas 6 raee, of students in eaeh
aehooJ, ftJed. 'l'o NE
Nov. 8 ~. brief in reply to delta; Memorandum in oppositioD for au award of attys. ·Fees, Costs 6 Expense, filecL ToNE
Nov. 30 Deft's interrop. & Request for Production of Documeats, flied. To NE

Dee. 1 Deft's racial makeup of teachers in DeKalb School S)'Stem iu aeeordaDce witb order of 1969, flied. ToNE
Dec. 12 P~s motion for Protective Order with brief & aftldavit, filed. ToNE
Dec. 16 Deft's motion to defer consideration with Memoraudum, filed. To NE

18

DATE

PROCEEDINGS

19'17
Dee. 18 PIU'a addition :reapoDSe of to pltf's motion for Pro-
t.eetive Order, filed. To NE
Dee. 2'1 ORDER AWARDING -.Ts fees and expenses to
pltfa ·m the amoUDt of $1~000.00.
DENYING pltfs' motion for a protective order and delta motion to defer, 88 MOOT, filed. (Copy to
eoauael)

1978
Jan. 6 ~a motion to Clarify 6 Alter Order of 12/27/78 with brief, ftlecL
12 Letter dated 1-10..'18 re: death of atty. CaDdler, ftled.
Jaa. 18 Deft's brief 6 response to pltf'a motiou to clarify
a8c1 Alter Order of 12/'1/1/77, ftlecL
Jaa. 28 SUBIOT'l'BD ON PLTrS MOTION TO CLARIFY
6 ALTBR OBDBB OF lS/2'11'17
Feb. 9 Jlovad Pltf., Aim '1'.rJppe lo1maotl'a motion to interveae 88 a pltf., wftb brief 6 motion for rule to show
cause for eoJJtetDpt. with brief,·ftled. To NB
Feb. 21 Mov&Dt PIU.., Aim Trippe loluuoD'a Amadment to brief in npport of Jl'lOtioa. to show eauae why delta should not be beJel bl ecmtMlpt., flied. To NE
Feb. 22 Pltra respcmae to motion to iutervae & motion for Rule to sbo1V eause for eoJ;deDIPt, ftled..
Feb. 23 SUBIUTTED ON MOVANT-PLTF. ANN T.
JOHNSON'S MOTION • TO INTERVENE AS
PLTF.. A IIOTION FOR RULE TO SHOW CAUSE FOR CONTEMPT

Mar. 2 Stipulation ext. time thra 8/10/78 for· pltf's to re-
spond to- Movant Ann T. Johnson's motion to intervene as pltf. & motion for rule t.o show cause for
contempt, with ORDER ALLoWING same, ftlefJ.

19

DATE

PROCEEDINGS

1978

Mar. 18 Defts.' Response to Intervenor's Motion to show cause for contempt and Motion to Intervene, with
aftldavit, filed. TO NE

28 ORDER Awarding pltfs $18,465.00 in attorney's
fees plus expenses of $491.46 and Court Costs, filed.
(see order) cpy to counsel. NE

Apr. 14 Pltfs' motion for supplemental relief with brief in support of and exhibits, filed

Apr. 18 Deft's motion to allow defts. to Change Attendance
Zones with brief, filed. To NE

May 8 ORDER that issues (pltf's motion for supplemental
relief & deft's motion to change Attendance zones) be more fuJly developed and a hearing on these mat-
ters will be held on 5/16/78 at 10:00 o'clock a.m., Room 318, U.S. Courthouse, filed. (Copy to counsel)
ToNE

May 10

ORDER GRANTING Ann T. Johnson's motion to
Intervene as pltf.; Hearing will be held on 5/15/78
at 10:00 a.m., Room 818 (at which time pltf's Ann T. Johnson's motion for r_.l~ to show cause for con-
tempt will also come before the court), filed. (Copy
to counsel) To NE

May 15 HEARING: Cause came on ·for hearing. Hearing on question of closing Heritage School; Respondents
EXHIBITS NO'S 1 thru 8 ADMITTED; Hearing on addition to Flat Shoals School. Hearing on peti-
tion to intervene by Ann Tripp Johnson, and Martin
Chitwood counsel for Intervenor. After arguments,
the Court directed the School Board to pay the inter-
venor expenses for transp. to & from school and to
work out the matter for the future w/out having
to file a petition of this kind in the Court. Hearing as to the Authority of the Bi-Racial Committee and
of the School Board. The Court stated that he would

201 i '

DATE

PROfEEDINGS

1978

pass an order in the ~ry near future on all these
questions heard this dt':te, except the matters of the Intervenor and the aut ority of the Bi-Racial Committee, no ruling will , necessary in this regard. (NE retained file.) 1

May 19 May 28

. '
Steno notes of 5-15-78, [filed. i
ORDER DENYING plif's motion for Supplemental relief; GRANTING deft's motion to allow a change of attendance zones; JPENYING Intervenor's motion to hold defts iri · eoJttempt, but defts. are DIRECTED to compensate intervenor for the cost of transporting her ~hild to Meadowview after 5/15/78, filed. (Copy t~ counsel)

May 30 Deft's motion to Alter & Amend Order of 11/8/76 with brief, filed.

" May 31 Transcript of proceedh)gs had 5/15/78, filed. June 2 Pltf's motion to Amend Judgment with brief, filed.

June 8 Pltf's Supplement to brief in support of motion to Amend, filed.

12 Steno notes of May 15, 1978 hearing, filed.

12 Pltfs' response to deft$' motion to alter or amend order of 11-8-76 with a#achments, filed.

13 SUBMITTED ON DEFTS' MOTION TO ALTER & AMEND ORDER Of 11-3-76.

June 22 Stipulation for ext. of time thru 6/26./78 for defts to respond to pltf's motiJon to Amend Judgment with ORDER ALLOWING s•me, filed. ToNE

June 26 Deft's brief in response to pltf's motion to Amend Judgment, filed. To NE'

21

DATE

PROCEEDINGS

1978
June 30 Deft's motion for ext. of time tbru 7/11/78 to respond to pltf's response, to defts' motion to Alter or Amend Order of 11/3/76, with brief, with proposed order, filed. ToNE.

July 7 Stipulation for ext. of time for defts to respond to pltf's response to defts' motion to Alter or Amend
order of 11/3/78, thru 6/80/78 with ORDER ALLOWGING same, filed. (Copy to counsel) To NE

July 7 Deft's documents showing the number of teachers by school, grade & race, which DeKalb County Bd. of Ed. anticipates will be employed for the fall Semester, 1-ee'd.

July 12 Deft's supplemental & responsive brief, relating to motion filed by defts 5/30/78, filed. ToNE

July 14 SUB}fiTTED ON PLTF'S MOTION TO AMEND JUDGMENT.

Aug. 2 Pltf's response to defts' Supplemental brief, filed.

ToNE

.

Sept. 6 ORDER DENYING Pltfs' Motion to amend court's order of Ma.y 28, 1978 and GRANTING in part a.nd DENYING in part Defts' Motion to alter of amend court's Order of 11-3-76: DIRECTING defendants w/in 10 days to advise all parents of special education students in writing of option of M-to-M
• program, filed. cc 9-7-78.
Sept. 18 Pltfs MOTION to Alter Judgment, w/Brief, filed.

Sept. 28 Pltf's counsel, Donald P. Edward's petition fQr Leave of absence from 10/4/78 thm 10/20/78 with proposed order, filed. (ToNE for approval)

Oct. 3 Defts Brief in Opposition to Pltfs Motion to Alter Judgment, filed.

DATE

PROCEEDINGS

1978

6 SUBMITTED ON PLTFS MOTION TO ALTER JUDGMENT.

2/ ORDER Granting Atty Donald P. Edwards request
for leave of absence, :filed. (c-to c).

26 ORDER Denying pltfa' motion to alter or amend
the court's order of Sept. 6, 1978, :filed. (c to c)

Nov. 6 PLTFS' NOTICE OF APPEAL, filt:d. (fee & Bond requested) epy to CoUDSel & cert. cpy of Notice & Doeket to U.S.C.A.

'1 Letter dated Nov. ?., 1978 from Atty Gary M. Sams, w/copy of elementary school- map and high school map, :filed. (placed loose In :file)

16 Defts' Perso!lnel report for the DeKalb County School System, per order of 1969, :filed

18/ Stipulation waiving bond for costs on appeal, filed. toNE for approval. (no action necessary)

Pltfs' Suggestion that Successors in Offtce be Sub-
stituted, w/Proposed order, filed.

Pltfs' Designation of Portion of Record and Statement of Issues on Appeal, ftled.

Nov. 30

ORDER that James B. Hinson, Jr. has been duly
appointed as Superintendent and that John W.
Truelove, John I. Ramsey, Frank B. Jernigan, Joe
Willingham, George R. Fello.s, David Williamson & John E. Fletcher, Jr. are presently duly elected members of the DeKalb County Board of Education
be substituted as defts in place of named defts, their predecessors in-said office, fld. cc

Dec. 8 RECORD ON APPEAL mailed to U.S.C.A., certified mail r.r.r. (Parties notified) ACK

23

DATE

PROCEEDINGS

1979

Jan. 24 Defts' motn to alter & amend order, w/brief, ftd. 81 Stipulation to supplement: reec)nd on appeal, filed.

Feb. 06 SUBIIITTED ON DEFTS' MOTION TO ALTER 4 AIIEND ORDER.

Feb. 08 Pltfa' response to Defs' motion with affidavit of Osear Kirk, ftled. NE

Mar. 7 SUPPLEMENTAL RECORD ON APPEAL, mailed to USCA ACK (ACK)
Mar. 08 Letter of Gary K. Sams re minutes of the meeting of tbe Bi-Bacial Committee held on Feb. 6, 1979 with copy of minutes, ftled.
Apr. 11 Defta' motion to alter or amend Order dated March 29, 19'17 with brief, flied.
18 Pltfs' response to defta' motn to replace Bi-Racial committee member, ftd.
06 BEARING: On defts motn to alter or amend order
of eourt as to M to M Tranllfers. Evidence by the deft, witnesses sworn. Deft Movant exhibits # 1
thru 16 ADMITTED (no #14). Evidence by the pltf witnesses sworn pltl exhibits 1 thru 9 ADMITTED. Court took the matter under considera-
tion & allowed ensl one week to file briefs if they
desire.
May 9 ORDER DENYING part & GRANTING in part defts. motion to alter or amend, and the deadline for registration in the M-to-M program is ext. til 6-4-'79 for this year only, filed. c.c.
Letter from Charles L. Weatherly dated 4-12-79, filed.
Letter from Roger Mills dated 4-10-79, filed.
21 Roger Mills note of wI drawal as co-ensl for pltfs, ree'd. (Atty notified that he did not comply w/loeal rule)

24

DATE

PROCEEDINGS

1979

31 ORDER that defts' mo;tn to alter or amend order of 3-29-77 is GRANTED~ & Mr. Mayweather is APPOI~D to the Bi-R~ial Committee, ftd. cc 6-1-79

Aug. 08

Certified copy from the USMC that the judgment of
the District Court is aftirmed. It is further ordered I
that the pltfs-appellants pay to the defts•appellees the costs on appeal to be taxed by the Clerk of this
court, ftd. cc

2S Transcript of proceding had on 4-5-79, ftd.

Oct. 4 Steno notes of proceedings held 4-5-79, filed.

1980

:May 22 Letter dated 5-16-80 to NE from Gary M. Sams RE: Boundary line agreement.

July 11 REPORT of DeKalb County School System pursuant to order of June 1969. NE-Noted & retn'd

REPORT of Glen Haven Elementary School & Rowland Elementary Sehool pursuant to order of June 1969. NE-Noted & retn;d

Aug. 20 Oct. 28

LETTER froiD Judge Edenfield to :Mr. Sams dated Aug. 18, 19lftl re: Redan Elementary or the New Mainstreet SCHOOL, w/attachments.
REPORT of Gary :M. Sams, pursuant to order of June 12, 1969. NE

LETTER dated Oct. 27, 1980 from Judge Edenfield
to Gary :M. Sams .re: Bi-Racial Committee REPORT
oNfEGary M. Sams re: DeKalb County School Syste. m.

Nov. 13 ANNUAL REPORT of the Bi-Racial Committee.
1981
Jan. 8 ORDER transferring case from Judge Edenfield to Judge O'Kelley. c.c. 1/20/71.

25

DATE

PROCEEDINGS

1981

!2 NOMINATIONS by Pltf to Biracial Committee &

RESPONSE to defts nominations w/attach.

1-

1982

April 8 ORDER that the court wishes to hear from the parties on the petition to increase the size of the committee by two seats· and to confer w/both sides
about th8 status of th~ •ease & the future eourse of the committee. The Court wm· set a conference for
6/ / at 10:00 AM in clumi~rs. The Court Will defer consideration of the two extra seats t}le com-
mittee until after that conference. ee & eod 4/9/82.

Aug. 18 Ptlf picked up Exhibits. pp

Oct. 26 Deft picked up Exhibits. pp

1983

May 5 MISC CONF: CT discussed with those present the issue dealing with the cap put ~n the ·~· number of students to be acee~illto.~~esideHith School
via transfer under the ~joJ.i• to t.Oill()fity .ru}e. Also discussed the Briarelift'and. Hend~rson SChools
being alternate schools. Als'o ctiscus84!d adftibg to
replacements to fill the vacancies on the BiRacial
Committee

Jul. 22
,.
Aug. 5

REPORT TO COURT as to Change of attendance Zones
SUGGESTION for SUBSTITUTION of Parties w/ prop order by pltf

MOTION by pltf for prel inj and MOTION for Supplemental Relief

Aug. 10 ORDER that Court will bold an evidentiary bearing on ~ltfs MQtion for prel inj at the first available date
ec 8-11

26

DATE

PRO¢DDINGS

1988

Aug. 21 NON..JURY TRIAL_. pitt• JQOtion tor prel iDj and

.tor additioaal nUet: IOQQ· aubetitutiD&' party

1._. .dWta
tuted

Roberi Flee•••~· iD place of

~ Bt.-t , lr., th.ahet.

substi-
Lyman

Jlo1rud, ~.~....,:liU.)IeCJe~GJ,- be aub-
==-~cleft~"§~Boudof,!e~: . . . . . . . . . . .·............ Bay . '

aad CJaiborDe Powell,;fUh ee 8-81

Aug. 26 NO)J...JURY TRIAL .OONT: EXHIBITs ADIUTTBD

Aug. 29 RON.JUBY TRIAL CONT: Defts BRIEF IN OP-
POSJTIOR to pitts IIOt. tor .·PNI iDJ and Mot for
sappJemeatat· ~ J'U); .

Aug. SO NON...JURY TIUAL COlft':

aDd .• Aug. 81 NON-lURYTRJALCON'I': Pltf• MEMORANDUM
of .·pobata ~ em iaajority .to miaority
Rusler ~ J!LD: CJ1;macle orsU ftadlnp
iAtother~w~tttea·~WilltoDctw.(exhibita
nbdaat by eT, ...~. .) .

Sept. 8 lfEKORANDlJK}.)~()~.f!a~ Cc>1U'tis eompeDed

~

Sotoef·h.gAoroaulug.S.t. rp8et1lei,emfltt·.oStoBU..~ :..··· .,. ,.."rm•~ ...•.:'..t<·~·~ 4,O..M..n....i.tieSDm.ie.tKt&,· hta•elO.brMaCl·.otoourndKet,r

wiitiug. listfor~ a'~l'ikeslde up to Maxi-

mum enrollment of 18& ee f.:8.48

Oct. 6 STENO NOTEs of ~had .Aug. 25, 1988
6 Aug. 29, ·1988.

Oct. 18

O:RDER AI'POINTING tJie fOQowil)g to Bi-Racial Committee:· Juanita .Be)~, C?hwyl. Eilpy, .A.rcbie
at Wfo!bber, and J'ohn C. ~psaro,#; ct will· appoint
additional members ~J-~. and Will establish terms for all members ai t·that time. cc 10-19 '

27

DATE

PROCEEDINGS

1188

Nov. 17 MOTION by Dould P. Edwards &tty for pltfs, i.vr leave of abaeDee 12-9-88 tbru 12-29-88 w/proposed onler, attachl'JleDt, (WOK for approval)

Dee. '1:1 SUBMITTED ON MOTION BY DONALD P. EDWARDS, A'ri'Y FOR PJ;TFS, FOR LEAVE OF ABSJINCE 12/1/88 tbru 12/11/88

2t ORDER DENYING motioa by Doaald P. Edwards,
au, for pltfa, for leave of ahaeDee 12/9/83 thru
12/29/88, eje A BOD 12110/81

1884

Jau. 11 Cpy of order of 12/20/88 to Dollald P. Edwards nt'cl, "naahle to forward"

28 MOTION by BOLD for leave to Intervene, Memo-
1'811dum, proposed eomplt (WOO)
24 MOTION by FOR to Intet"Veue u a pltf, brief, pro-
posed complt (WOO)
80 MOTION bu HOLD, Mo't'&Jit..Intervenor, fo-x" expedited hearinl', memoraadum (WCO)

Jan. 81

BBABING: on pitts' verbal motion for a eontinu-
aee of trial; Ct DBNDID Pltf'e JhOticm for a eon-
~; GRANTED the tecluest of atty for HOLD
permfaaion to particl.,.ai iu ·dePosition of .Roger MU18 to the limited esteat to determine BOLD's standing to intervene in die we,··· DENtED iDBOfar
u it may bave related to the merits of the case. .

Feb. 1 NON-JURY TRIAL: on the merits as to the issues
relating to tbe Redan Se~ District. (pltfs abandoned their request ?or relief .. to the Knollwood Seh) Ct. GRANTED HdLD's motion for an ex-
pedited hearing; after hearing oral arguments on
HOLD's & FOR's motions: to interven, ct DENIED
said motions at this time.

28

DATE

PROCEEDINGS

1984
2 NON~Y TRIAL CON'T: pltf's EXHIBITS ADMITTED

3 NON..JURY TRIAL CON'T: defts' EXHIBITS ADMITTED

6 NON-JURY TRIAL CON'T: et adjourned until 2/10/84 for oral argumat

9 TRIAL BRIEF on behalf of defte

10 NON-JURY TRIAL CON'T: Ct made verbal ftnd-

inp into the record ~ ~ef requested by

pltfa u to the RedUI' ~®J. Distriet. Written

opbdon

to

follow.

..

lhbibita,rilf.aiDecl. by

_,.

''; ·.·

the

Ct.

22 ORDER. ACCEPJ.'ING tilt~, ~igution of Roger Mills as a member of the Bi·.f'•ial CoJillllittee, Ct
will DOt ftll the '\f8C8JJq .aa~~~ not make any ap-
pomtments to· the ·Bi""BaeiJ~t<·Cimmittee until ·the
ec:mdusion of tbe curtent sellool year, c/e & EOD
8/1/M

22 MBMOBANOU¥ OPINION,: Jlirecting the clerk to
eJittr judgm~,~~;(e,~ o~Y-,ancl}againstpltfs;
DBNYibfG.,Pt£8'. ~~for:~·' · Jli"unetion
on pltfs ·t. heR·e· .d..a..t..i. ,·.:· ~.;.. -·· ~et:''~~:~:,~~Jfor .i•,,.• ,... ,. ..,,, .;..,..:·:;.:·: .. , · . · · ' ~ned ..the·. :.-ttib#.:of'th'"::~O,if dealing w/ KaiDwood :E~ ~"ijol; t~o" JIO ruling
reQllired, eje & EQD' 3/l/84 (pltrs exhibits, deft's
eddbits & joint exhibjW in exfl~' Room

29 JUDGMENT EN'rEREb that th~ Ct finds in favor

of the pltfs as to issu• re~· to Lakeside. High

School as Setforth in this Ct's'o:tder filed 9/8/83

and that that Ct finds 1n favor of the· deff.s as to the "·' . -

-

.

.·.

--· .' • I "'·.. · ~.··

' '····:_.,.:."·

·.- . ·!·, ; - .

. •

issues setfortb in the Cit's order of 2/22/84, e/e &

EOD3/1/84

29

DATE

PROCEEDINGS-

1984

Mar. 23

NOTICES OF APPEAL (two) by pltfs from Order of 2/22/84 & Judgment of 2/29/84; Pltfs appeal
from the judgment only as to those issues contained
in the order of 2/22/84, including the denial of the disc requested (fees & bond not paid), ltr to Mr. Edwards requesting fees & bond, eert copy of dkt, Notice Order & Judgment to USCA 3/26/84 ACK USCA #84-8286

23 TRANSCRIPT of proceedings had 2/2/84

26 Cost bond on appeal by pltf

29 Apr. 3

BILL OF COSTS w!brief & attachments by pltf in the ~mt :;;f $2,27&.itl, cc & eod 4/8/84
the COSTS TAXED in amt of $2,275.82 for pltf, ce
& eod 4/8/84

9 MOTION by defts to review and disallow costs, brief

12 SUBMITTED ON BILL OF COSTS OF PLTF AND DEFTS' MOTION TO REVIEW AND DISALLOW COSTS

12 Ltr from Donald Edwards, atty for pltf, designating
record to,be sent on Appeal {notified atty that that consent of other party was needed) (WCO)

18 WITHDRAWAL OF BILL OF COSTS by pltf.w/ proposed (to WCO for approval)

18 WITHDRAWAL OF A DUPLICATE NOTICE OF APPEAL by pltf w/attaehment (to WCO for approval)

21 ORDER GRANTING pltfs' withdrawal of Bill of Couts, ce & eod 4/23/84

26 Ltr from Donald P. Ewards & Gary Sams, dated 4/24/84, Designating Supplemental record to in-
clude transcript of proceedings dated Feb. 1, 2, 3, 6, & 10, 1984, Order dated 10/5/77 and Order dated
5/8/79 to be sent on Appeal

so

DATE

PR9CEEDINGS

1984

May I REQUEST by pltfs for transeripta re hearing on 1/1/81; 2/2/84; 2/8)84; 1/6/84; 2/10/84

80 MOTION of p]tfs. for an award of fees and costa wlbrief A atteha.

June 12 BlUBJ' of deft. In opposition to p~s mot. for costs

aattrsfeea.

.

• SUBKITt&D ON MaftON OF P~ FOR
AWARD OF ATTY'$ PUS& COSTS.

BECOBD MAD,IID TO USCA 11 VIA CERT.

KAJL. (ACE) ACK

.

22 SUPPLJDiiin7AL IIEiiviiAN"iiU.H by Pi~ ia

aappoJt of their DIOticm for attys' fees & eosta

(WCO)

July 8 OBDD APPOINTlNG the Bi-Racial Committee to
be eoastitated.aa•folJowa: Jqauita Boraneo, Cheryl
Bspy, AftllJe A; W~! aDd John C. KapsJ.roif to
serve ma the Co1Daiiltee until 7/1/8&; llJld Jay B.
GoldmaD, the Rev. Jilmlde L. Sllllth, -Dr. Wytch Stubbe, Judith A; O'Bflell;. and ~e K. Sanford
to serve on the Committee UDtil 7/1/88, ec & eod
'1/8/84

July 11 OJmER DENYING pia's motion for··atty's. fees &
cOsts iDeurred- in the "takeside High School'' phase of this aet.ion. copieS served by jwe on 7/12/84

Aug.10

NOTICE OF APPEAL byplas from OJ'der of 7/11/
84 which denied plas' ·motion for attY fees & cost.s
eoo (fees & bond pel) -·($t··-~ of dkt, NOA, Order to
USCA & 8/13/84 d-8862

13 CERT SUPPLEMENTAL. RECORD ON APPEAL

to USCA, consisting/ of 1 vol:. by cert mail, rrr

-

I

21 EXHIBITS (D-18, :I D-19, D-18, D-20, D-1, D-3)

picked up by couuel for deft & Hand Carried to the

U.S.C.A.9 11th Cir. .

I
1-

31

DATE

PR~INGS

1984

28 CONFBBENCB: w/~ 8lld ~Bi-Racial Com-

mittee.. Paniee repnaeJlted ibi~: Edwards, Gary

..,. -\ CJ1arJe8 W....... i_ ~,lb-. llobert Free-

w...-.... ..., Jl'r. -Strala ad 11&:~~ present. In

acldit'iO.Ja the.r.eto. M.s... .. J. 't' l.·a:i, ..i,.,t,,.,.,i_._.'•,, ~' , M..a.. C. he·r:y1

Espy, Mr. Aftlde A

J.~.C•. KaPJ58J:Off,

.Jay· ll OoJdmau, BeY. I;, j L ·_··.SmJt~,· _.Dr.. Wytch

8tub118. ML ludith A. ~ 6 . 1Jobbie K. San-
ford, ..UtuUQ the m-BadaiCouiinfttee as it now

aiatl.- were present.

Oct. 1 MOTION by plfta for iDjuneticm pending appeal

2 OBDB& DBNYJN'G p)tle' motion for injunction
~ appeal, ee A eod 10/3/84 ·
Nov. 8 STENO NOTES of proeeediag had 8/28/84 .
l986
Apr. 15 CEBTIJ'IED COPY of j~t. USeA AFFmM-
ING deeision of USDC, aDd . . .appellaats to apy
eosts,• w/OPlNION. (ee & ~ 4o-18-80)
at 28 CER'l'IFlED COPY_ of_ J·adcW1.'JD~ f.r.O_, m USCA (re
appeal. #84-8286)' ...-ve&t: ~~~- .t Nmanding
case to ctiatrict court, w/opbdou, 1)111' of costs.
PBOPOsED order m&kbagi ~- of USCA the
Jwlament of district court.. ·~to-Wqo)
of 29 ORDER maldng mandate tJStA the judgment of didJiet court. (ee & eod 4--ScWI&S) tChEaRt jTttldFgImEDenCt oOfPDYisOtrFicrtoCb~uGrItIiE&!'·tJlt'tvF"REORlS\1E':Ul)SaCnAd case hr REMANDED to Di~~ ~urt for further _ Proeeeaings in _~rdance~ _\iit11 ;,(}pinion of_ -this court. w/OPINION, BILL IOF C0$Ts, & ORDER that appeJiants' motion fo~ award''"9f atty's fees is remanded to district court !for co:DSideration at the conclusion of the litigation. (cc & eod 4-30-85) r

32

DATE

PROCEEDINGS

1986
July 8 CONFERENCE: Co~ difteted coUDSel to file state-
ments of their ~ve pgaitions as to hwat the
court is :required to clo, and \(,· attaeh copies of their
briefs to 11th Cireui\ no later that 7-12-85; c~erk to
submit thereafter.
10 STENO NOTES of proceedings held befoTe Judge O'KeUe;y 6-6-88, 8-81~, 10-14-88 and 1-80-84.-
19 SUBifl'r1'ED PER .INSTRUCTIONS OF COURT
AT CONFERENCE 7-8-86, RE STATEMENTS OF POSITIONS.

Aug. 18 ORDER setting hearing for 8/23/85 @ 10 :00 a.m.; action shall be resubmitted after hearing. (copies mailed by "Ct dep 8/13/86; eod 8716/85)

Court retained orig. filed.
23 HEARING: plas to· file briefs w/in 10 days; dfts to reply (days allowed for reply not shown on min-
ute sheet) ; clerk to resubmit for ruling no later
than 9/16/86.
Court retained orig file.

Sept. 20 SUBMI•l'TED PER INSTRUCTIONS OF COURT AT HE.ARING 8/23/85.
Oct. 9 ORDER n!appointi:ng as member of the Bi-Racial
Committee Archie A. Webber; appointing new members EliZabeth Hu~ Ralph Davis, Jt., Barbara DeBardelaben and Johnny· Jones, with· their tierms of oflice to run until July 1, 1987. (CC & eod 10/11/So>

81 ORDER that court :PENIES plas' request to enjoin implementation of d~~· pl... (ee & eod 10/31/85)
JUDGMENT ENT~RED in favor of dfts & against plas, dfts to recover costs. (cc & eod 10/31/So)

33

DATE

PROCE~DINGS

1985
Nov. 21 EXHT. RETURN LETTERS mailed to counsel, rrr. ackack
Dee. 2 BILL OF COSTS against plas in amount of $3751.30, by dfts. (counsel notified)
11 Dfts picked up exhts.

16 COSTS TAXED against pia in amount of $3751.30. (ee & eod 12/18/85)

1988

Jan. 16 MOTION for final diemissal w/memo by dfts.

28 STIPULATION approved by clerk ext time thru
2/8186 for plas to respond to dfts' motion for final
dismissaL (ce & eod 1/29/8t)

Feb. 4 Pia picked up all exhts.

7 RESPONSE of plas tn motion for final dismissal.

20 SUBMI'I'TED on DFTS MOTION FOR FINAL DISMISAL.

27 ORDER granting plas request for S months in which
to conduct .discovery; consideration of dfts motion
for final dismissal is deferred until after disc. & the hearing which will be scheduled; motion to be resubmitted after bearing. (ce & eod 2/28/86)

May 27 STIPULATION of parties for order ext time period of disc, w/proposed roder. (to

80 ORDER ext disc thru 6/27/86. cc & eod 6/2/86
' Jun. 05 MOTION of plas to s1.1bmit addt'l interrogs to dfts w/memo & attachments.

Jul. 15 MOTION of pia to Compel dfts to Answer plas third · set of interrogs

34

DATE

PROCEEDINGS

1986

16 STATUS TELE CONF: Ct scheduled a pretrial conf for 9 :30 Aug 8, 1986 & instructed counsel to be prepared to address any disc disputes & other matters
30 RESPONSE of dfts to Motion to compel dfts to
answer plas 3rd interrogs

Aug. 11 12

SUBMITTED ON PLAS MOTION TO COMPEL ~
ORDER that disc will end Oct 31, 1986; parties to submit a consolidated proposed pretrial order by
Nov 15, 1986; GRANTING plas mot to compel &
plas motion to subm additional interrogs cc 3-14

Sept. 19 ORDER REAPPOINTING Jay B. Goldman & Ms
Bobbi Sanford to membership of Bi-racial Com-
mittee for DeKalb County School System; CT AP-
POINTS new members, Saran G. Cooper, Ronald D. Phillips, Timothy J. Sweeney & Ralph W. Wright;
terms shall run until July 1, 1988 cc 9-29

Oct. 24 ORDER ext disc thru Nov 15, 1986; PTO due Dec. 2, 1986 ce 10-24

24 ORDER that Mrs. Sarah G. Looper is relieved from

serving on Bi-Racial committee due to a continuous

conflict with that meeting date cc 10-24

\
31 NOTICE OF TAKING DEPOSITION of Robert

,.,._. ;

Dentler

Nov. 5 IN CHAMBERS MISC CONF: Written order to
follow

7 ORDER ext disc only for purpose of allowing par-

ties to depose three elg)erts: (1) Dr. Walber~ (2)

Dr. Dantler (3) Dr. €ole; any disc matters other

no than these must be concluded by Nov. 15, 1986; par-

ties to submit prop

one week before trial if

trial is held on currently scheduled date of Jan 20,

1987 (see order for details) cc 11-11

35

DATE

PROCEEDINGS

1986

12 NOTICE to take DEPOSITION of DR. JOHN KICKLIGHTER by pia

17 REQUEST of pla for an ext of time to complete disc and for reqetting of date for hearing on Motion for Dismissal

17 NOTICE of appearance by Kathleen L_., Wilde for pia
re: 17 Letter dated Nov 14 to WCO from plas termina-
tion of their lead atty
19 MOTION w/brief requesting permission to withdraw as attorney of Record for plaintiffs by Attorney Donald Edwards

21 26 Dec. 5

HEARING on plas motions filed Nov 17, 1986; dfts MEMORANDUM in opposition to plas motions of Nov 17, 1986, FLD: written order to follow
MOTION by plas to require dfts to produce data requested in plas 4th interrogs & for reconsideration of motion to ext disc..,& reschedule hearing date REPLY of dft to plas motion to require dfts to produce data in merged form & for reconsideration of motion to extend disc & reschedule hearing date

10 REPLY BRIEF~f pia in e~upport of motions for merger & Reconsideration ·

11 ORDER GRANTING atty Donald Edwards motion to withdraw as atty for plas; GRANTING plas request that the hearing date on dfts motion for final dismissal be rescheduled for April; DENYING plas request for production of documents cc 12-15

1987
Jan. 2 NOTICE to take DEPOSITION LER bydfts

RTDENT-

36

DATE

PROCEEDINGS

-1987

26 STENO NOTES of Pl"9Ceedings held on 2/1/84, 2/2/84, 2/3/84, 2/6/84, 2/10/84, 10/2/84 and 8/23/85.

Mar. 12 STIPULATION re: disc
27 IN CHAMBERS PRETRIAL CONF: CT will enter pretrial order

31 ORDER re pretrial eonf; trial. on pending motion will take apprx 13 days beginning July, 1987:.~-.&ir tached are dfts proposed pretrial. order & plas out-· ·
line of the case. CT will consolidate these documents to fonn pretrial order; The Ct approves these documents a.s consolidated as the pretrial ord,er of the Court. ce 4/7

Apr. 27 STENO NOTES of proceeding held on 10/28/86.
May 8 Case is set for trial on dfts Mot to Dismiss at 9 :80
am July 6, 1987 (non-jury approx 2 weeks)

June 29 Letter dated June 26 from Kathleen L. Wilde to
LDT re substitute portions of PTO, ree'd

80 Letter dated June 29 from Qary M. Sams to LDT re supplement to dfts PTO, ree'd

Jul. 1 MOTION of Amicus Curiae League of Women Vot-
ers of DeKalb ('..ounty for leave to file brief

2 TRIAL BRIEF of pia in Opposition to dfts motion to dismiss 0

6 NON-JURY TRIAL dft EXHIBITS ADMITTED

July 8 NON JURY TRIAL CONT: Verbal )lOTION by plas to exclude dfts exhibits 89-94, 105, 110-119 and 138 motion DENIED

9 NON JURY TRIAL CONT: plas EXHIBITS admitted

87

DATE

PROCEEDINGS

1987

6 PROPOSED findings of fact by dfts'. (WCO)
PROPOSED conclusions of law on motion to- dismiss bydfts'. (WCO)

PROPOSED findings of fact and conclusions of law
byplas. (WCO)

7 non jury trial

18 NON-JURYTRIALCON1':

14 NON-JURY T.RIAL CONT:

13 NON-JURY TRIAL CONT:

16 NON-JURYTRIALCONT: 20 NON-JURYTRIALCONT:

21 NON-JURYTRIALCONT:
22 NON-JURY TRIAL CONT: CT allowed dfts 20 _days after receipt of transcript to file post trial brief; allowed plas 15 days receipt of dfts brief to file a reply Clerk to submit

31 STENO NOTES of proceedings held on 07/13/87

and 07/16/87.

6

Jul. 24 MOTION by pia for supplemental relief w/brief

Aug. 10 RESPONSE of dfts to plas motion for supplemental .,. relief

24 SUBMITTED ON PLAS MOTION FOR SUPPLEMENTAL RELIEF

Sept. 4 25

ORDER DEFERING ruling on plas motion for supplemental relief until CT rules on dfts motion for fiDal dismissal cc & eod 9/10
STENO NOTES of proceedings held on: 07/1&/86, 08/08/86, 12/05/86, 11/21/86, 03/27/87, 07/01/87, 07/06/87, 07/07/-0S.·09/87, 07/14/87, 07/15/87, 07/20.21-22/87.

.•

38

DATE

PRO¢EEDINGS

1987

Sept. 25 TRANSCRIPT of proc~ings had July 9, 1987

Oct. 18 PROPOSED AMENDED FINDINGS OF FACT

bydft

'

18 POST TRIAL BRIEF of dfts in support of their motion for a declaration of unitary st&1.tus and for final dismissal

Oct. 28 MOTION by pia to require dfts to ftle Junior High
plan

.28 POST TRIAL BRIEF in· oppo~dtion to dfts motion for declaration of unitary stat~ and final dismissal

Nov. 9 REPLY of dft to plas post trial brief in opposition
to motion for a declaration of umtat:y Status and for final dismissal

9 BRIEF of dft in respouse to plu motioll to rerpaire dfts to 1ile Junior Hlp ·.·.PJIB

16 SUBMITTED PER jHWtf: flf IUL'I' 12 Al!1D

PLAS MOTION To . . .

DFfB !0 .nLB

JUNIOR HIGH PLAN

1988

Jan. 22 TRANSCRIPTS of Pf*tiS eli •• •If ~~--- S\, D.
14, 16, 16,20,2l&22,lM

June80

O

R

D

E

R

t

h

a

t

D

C

S

S

.

.

~a~: -

-

-

ing a plan by 9/. 9.1r·~~-~-,···

ness plianee w/regardtoJ.ar;•..,.•:~a

ments.

KRlii.U··

plan. DCSS

penditures amoq 't.:'VftiM

school year. W/i!l

DCSS sMflfile .l'dol't

P81lditures.

.(:t abolish~

··D.. . , _ . ,

CtGRAHTS ..

& DENIES motion to MJ1Qft

Plan. Local counsel pt~IC:ea

39

DATE

PROCEEDINGS

1988

Jul. 13 MOTION by pla for Reconsideration w/brief in support

Aug. 1 RESPONSE of defts to pltf's motion for reconsider-

ation.

~

3 SUBMI'lVfED ON PLTF'S MOTION FOR RECONSIDERATION.

11 ORDER DENYING pltf's motion for reconsideration.ee

29 MOTION of pltf for award of costs & atty's fees wjbrief.

Sept. 9 ORDER CERTIFYING order order of 6/30/88 for
interlocutory appeal. FURTHER, ORDERED that consideration of motion for attys' fees id deferred ; . the d~e for submission of. ~~pplements to the motion and response is suspeJt,ded/ ee

9 NOTICE OF APPEAL by.pltfs· from order of 6/80/ 88 & order of 8/11/88. Fees paid. cc Cert c/dkt, NOA, orders to USCA. 88-$687

Sept. 20 NOTICE OF APPEAL by defts from (portions of) order of 9/9/88. No fees paid. cc Cert c/dkt, NOA, order to USCA. Ltr re fees sent. ACK by USCA
88-8687

28 APPEAL FEES paid re NOA of 9/20/88 by defts. USCA notified 10/5/88 aek.

SO FORTHWITH LTR re 88-8687 from USCA.

Oct. 7 STENO NOTES of proceedings of 11/23/87 & 9/8/88.

21 JOINT MOTION to designate previous orders as

part of Record on Appeal w/brief (to WCO for

approval)

·

40

DATE

PROCEEDINGS

1988

Oct. 24

Certified copy of order of USCA Granting petition for permission to appeal pursuant to 28 USC
1291(b) w/cover ltr tq counsel advising 2 separate
filing fees ~ required. They ha.ve docketed one
case as the main appeal and other as the crossappeal, but there is only one case number aasigned to
both. 88-8775 cc

26 APPEAL FEES paid by defts re 88-8775 USCA notified ACK

Nov. 1 ORDER- GRANTING joint motion to deii.itp1ate pre-
vious order as part of the re¢or.:I· on .•~oppeal. (Orders
of 6/12/69, 11/S/76 & 10/.t'liJO ~o~d ~ ·made
part 1Jf reeord on _~--and: tf49Jilif;ted·to USCA.) cc copy of this order ~;_· joint motion & brief of
10/24/88 to USOA (brief clets.ils which orders are
designated)

7 Letter, dated_ 11/4./88 •from J.~Stanl~ Jlawkins of
Weekes & Candler stating diffiHPPeUees request that all of the exhs aeeepf.ell:·into mdenee by ct
at hearing held from 716 tbju·-·7/22/87. be included
in record transmittecl to Ct qf Appeals.

7 Fees paid by pltfs re 88-8'175 USCA rec'd money and forwarded it to us.
10 FORTHWITH ltr from USCA re 88-8175 & 88-8687

17- NOTICE OF APPEARANCE of attY Marcia W.

· Borowski for pltfs.

v