Burton v. City of Belle Glade

Lillie BURTON, Vallie Danielles, et al., Plaintiffs-Appellants,

v.

CITY OF BELLE GLADE, Belle Glade City Commission, et al., Defendants-Appellees.

No. 97-5091.

United States Court of Appeals,

Eleventh Circuit.

June 25, 1999.

Appeal from the United States District Court for the Southern District of Florida. (No. 95-8356-CV-KLR),
Kenneth L. Ryskamp, Judge.

Before TJOFLAT, BARKETT and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

Appellants, three African-American tenants of the Okeechobee Center, a housing project located in

unincorporated Palm Beach County, and four African-American residents of the City of Belle Glade, brought

this lawsuit alleging that the City of Belle Glade unlawfully deprived them of their right to vote in failing to

annex the Okeechobee Center into the City. Specifically, Appellants contend that the City failed to annex the

housing project for racial reasons in violation of the First, Thirteenth, Fourteenth, and Fifteenth Amendments

to the United States Constitution, section 2 of the Voting Rights Act of 1965, and Title VI of the Civil Rights

Act of 1964 and its implementing regulations. After extensive pre-trial proceedings, the district court granted

summary judgment in favor of Appellees, the City of Belle Glade and others, on all counts, finding neither

a constitutional nor a statutory violation.

On appeal, Appellants challenge the district court's order on three basic grounds: first, the district

court purportedly erred in concluding that Appellants failed to raise a genuine issue of material fact as to

Appellees' discriminatory intent; second, the district court also erred in holding that the remedies they

sought—including the unusual remedy of ordering a city to annex property into its municipal

boundaries—were neither available under the Voting Rights Act nor permissible under the Federal Rules of

Civil Procedure; and finally, the district court erred in granting summary judgment sua sponte to Appellees
on Appellants' Title VI claims. After thoroughly reviewing the record and the parties' briefs, we affirm the

district court's judgment concerning Appellants' constitutional and Voting Rights Act claims, as well as the

Title VI statutory claim, but reverse and remand Appellants' cause of action to enforce Title VI's disparate

impact regulations for further proceedings consistent with this opinion.

I.

The historical facts and the procedural history necessary to understand this lawsuit are complex and

extensive. At the core, however, this legal battle has been fought over the refusal of the City of Belle Glade

("City") to annex an adjacent housing project known as the Okeechobee Center Farmers' Home

Administration Project ("Okeechobee Center") into its geographic and municipal boundaries.

The City of Belle Glade is an incorporated municipality located on the western side of Palm Beach

County, near Florida's agricultural heartland. In the 1930s, the federal government created two housing

projects outside the city limits. One of them, known as the Osceola Center, was populated by whites and

stood at the City's northwest corner. The other, the Okeechobee Center, was populated by blacks and was

located to the southwest of the City. In 1947, the City created the Belle Glade Housing Authority ("BGHA"),

a board of seven members nominated by the mayor and appointed by the City Commission, to address the

"shortage of safe sanitary dwelling accommodations in the City of Belle Glade available to persons of low

income at rentals they can afford." The BGHA assumed ownership and operation of both the Osceola and

Okeechobee Centers. The centers, however, remain funded in part by the federal government through grants

from the Department of Agriculture. "Jim Crow" laws required both housing projects to be segregated by

race.1 During this time, the City also mandated residential segregation. See, e.g., Belle Glade, Fla.,

1
In March 1975, however, a group of tenants brought suit in federal district court against the Secretary
of Agriculture and various local housing authorities under Title VI of the Civil Rights Act of 1964 to
integrate the centers. See Mae Golden Acres Tenants' Ass'n v. Butz, No. 75-1161-CIV-JE (S.D.Fla.1975).
On July 19, 1977, the district court entered a stipulation for consent judgment in the Mae Golden Acres
litigation, which provided that the BGHA would no longer segregate the Osceola and Okeechobee
Centers by race and would administer the projects according to racially non-discriminatory policies. This
settlement marked the formal end of de jure segregation at the Osceola and Okeechobee Centers.

2
Ordinance 45, 184, 273, 443 (Nov. 18, 1931, Sept. 18, 1936, January 12, 1938, December 27, 1939). These

ordinances were repealed, however, by 1963. See Belle Glade, Fla., Ordinance 63-11, § 1 (April 24, 1963)

(repealing Belle Glade, Fla., Code §§ 26-14 to -17 (relating to zoning)).

In 1960, the total population of the City of Belle Glade was 11,273, of which 7,393 (65.6%) were

non-whites and 3,880 (34.4%) were whites.2 The following year, the City proposed, for the first time,

extending its municipal boundaries by annexing both the Okeechobee and Osceola Centers. The City asked

the property owner, BGHA, whether it had any views on the matter. After discussing the possible advantages

and disadvantages, the BGHA ultimately petitioned to the City only for annexation of the Osceola Center.

Soon thereafter, on April 26, 1961, the City Commission considered the BGHA's petition and unanimously

annexed the Osceola Center.

In the 1970s, the City and the BGHA twice considered the possibility of annexing the Okeechobee

Center. In 1971, the City Commission's minutes simply reflect that a meeting was to be arranged between

the City Commission and the BGHA to discuss the possibility of annexing the Okeechobee Center. The

minutes make no mention, however, of who made the annexation request or whether any meeting was ever

held. Two years later, on February 26, 1973, a group of tenants from the Okeechobee Center asked the City

Commission to annex the center. The City Commission advised the tenants that it would consider annexation

if the BGHA made the request. On April 17, 1973, the tenants asked the BGHA to petition the City for

annexation, but the BGHA denied their request in October 1973. The record does not reflect whether the

BGHA offered any reason for denying the request.

2
As of 1970, the total population of Belle Glade increased to 15,949, of which the percentage of blacks
decreased to 52.9% while the percentage of whites increased to 46.5%. By 1993, a special census showed
that the City's total population had increased further to 17,208, the population of blacks increasing to
54.8% and the white population decreasing to 39.6%. As of May 24, 1994, the population of the Osceola
Center was 46% black, 50% Hispanic, and 4% white, whereas the population of the Okeechobee Center
was 92% black and 8% Hispanic.

3
 The following year, the Florida legislature repealed all local laws pertaining to the adjustment of

municipal boundaries and established a uniform legislative standard for use throughout the state. See

Municipal Annexation or Contraction Act, 1974 Fla. Laws ch. 74-190, § 1 (codified as amended at Fla. Stat.

Ann. §§ 171.021-.022 (West 1987)). The statute specifically provided for the voluntary annexation of any

property contiguous to a municipality upon petition by the property owner to the municipality's governing

body. See 1974 Fla. Laws ch. 74-190, § 1 (codified as amended at Fla. Stat. Ann. § 171.044(1) (West

Supp.1998)). The City Commission also could initiate annexation of any contiguous, compact, and

unincorporated property by a referendum of the registered voters of the municipality and the residents of the

area proposed to be annexed. See 1975 Fla. Laws ch. 75-297, § 2 (codified as amended at Fla. Stat. Ann. §

171.0413 (West.1987 & Supp.1998)). Notably, according to these provisions, the statute prohibited

municipalities from annexing any property that did not meet the statute's definition of contiguity. See 1974

Fla. Laws ch. 74-190, § 1 (codified as amended at Fla. Stat. Ann. § 171.031(11) (West 1987)).3

Two attempts to secure the City's annexation of the Okeechobee Center through litigation occurred

in 1980.4 Pursuant to a settlement agreement, the City and City Commission agreed to appoint an

"Annexation Committee" to investigate and make recommendations concerning the wisdom and efficacy of

annexing the Okeechobee Center.5 In November 1984, after the Committee held public hearings, received

3
The parties dispute whether the Okeechobee Center is contiguous to the City, and, hence, available
for annexation under Florida law. See discussion infra Part II.B.2.
4
In Okeechobee Center Cries for Help v. Belle Glade Housing Authority, No. 80-8220-CIV-JAG
(S.D.Fla.1980), tenants of the Okeechobee Center sued the City and the BGHA seeking, inter alia, a
mandatory injunction requiring the defendants to take all steps necessary to annex the Okeechobee Center
into Belle Glade. Similarly, in Jackson v. City of Belle Glade, 95 F.R.D. 384 (S.D.Fla.1982), some Belle
Glade residents brought suit against the City and BGHA, seeking annexation of all black areas adjacent to
the City The parties eventually resolved both lawsuits prior to trial without the plaintiffs' obtaining
annexation and, in March 1984, the court dismissed the suits with prejudice.
5
The City Commission appointed five members to this Committee: one member of the Okeechobee
Center Tenant's Association, one black resident of the City as recommended by the Panhellenic Council,
and three additional members, at least one of whom had to be a member of a minority group.

4
comments from the public, investigated and considered the possibilities and ramifications of annexation, and

conducted a cost study of annexation, the Committee issued a report recommending against annexation on

the grounds that the Okeechobee Center did not satisfy Florida's statutory contiguity requirement and that

annexation did not make reasonable economic sense for the City.6 However, the report also urged the City

Commission to consider other factors "relating to the humanitarian aspects of those residing in Okeechobee

Center" in light of residents' feelings "that annexation would right past 'wrongs.' " On January 28, 1985, the

City Commission officially accepted the Annexation Committee's report.

As far as the record reflects, the tenants' efforts at annexing the Okeechobee Center lay dormant for

over ten years, until May 8, 1995, when Albert Peterson, a resident of the Okeechobee Center and President

of the Resident's Council of the Okeechobee and Osceola Centers, wrote Mayor Weeks requesting that the

City annex the Okeechobee Center. On May 30, 1995, the Mayor denied Peterson's request, concluding that

annexation would be "neither feasible nor advantageous to the City from the financial and public services

perspective." The Mayor's letter summarized the findings of "[a] study of this issue that was done a number

of years ago":

Upon annexation, the City must provide the following municipal services: water, sewer,
police protection, sanitation services, street lighting, street signs, street paving, maintenance,
drainage, parks and recreation. Since the subject land is exempt from ad valorem taxes, no property
taxes would be generated to offset the cost of providing the necessary services, which far outweigh
any miscellaneous revenues that might be realized.

Other factors in determining the viability of annexing the parcel included the following: 1)
No need exists to expand into the proposed parcel, 2) No industry would be annexed, 3) The parcel
would provide no additional facilities to be brought into the City, 4) Annexation would not improve
the economy of the City, and 5) The Comprehensive Plan would have to be revised thereby
compounding the expense to the City.

6
Specifically, the report estimated the following capital outlay and first year start-up costs: library
services, $158,693; inspection, $8,000; fire, $442,000; streets $7,140; building and grounds, $18,640;
garbage collection, $138,483; police, $133,724; and parks and recreation, $119, 556. Thus, the total
estimated costs were $1,026,236. The report further estimated that the property would generate
miscellaneous revenues for the City of $126,000 per year.

5
 City Attorney John Baker's legal opinion was that the City may not annex the property
known as the Okeechobee Center because the said property is not contiguous to the municipal
boundaries, and annexation is therefore prohibited by Florida statutes.

Because "costs have risen, conditions have not changed, and the laws have not been amended" since that

study was conducted, the Mayor concluded that he would not propose annexation of the Okeechobee Center.

On June 12, 1995, four tenants of the Okeechobee Center7 and four black residents of the City

initiated this lawsuit seeking injunctive and declaratory relief against the City of Belle Glade, the Mayor of

Belle Glade, the Belle Glade City Commission and its members, and the BGHA and its officers and members

alleging that the BGHA's failure to petition for annexation and the City's failure to annex the Okeechobee

Center, as well as the City's practice of annexing property populated by whites, denied or abridged the rights

of Appellants to vote on account of race or color in violation of section 2 of the Voting Rights Act of 1965,

42 U.S.C. § 1973 (1994), and that these practices were adopted or purposefully maintained to dilute the

voting strength of Appellants and deprive them of their rights secured by the First, Thirteenth, Fourteenth,

and Fifteenth Amendments to the United States Constitution, as enforced under 42 U.S.C. § 1983 (1994 &

Supp. II 1996). Appellants further alleged that the BGHA's failure to petition for annexation discriminated

against the tenants of the Okeechobee Center on the basis of race, in violation of Title VI of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000d to 2000d-4a (1994), and its implementing regulations, 7 C.F.R. § 15.3

(1999). The district court dismissed Appellants' claims to the extent that they relied on the First and

Thirteenth Amendments, expressed its view that the remedy of forced annexation was not available under

section 2 of the Voting Rights Act, and dismissed Appellants' constitutional claims without prejudice for

failure to plead pursuant to 42 U.S.C. § 1983. Appellants subsequently filed an amended complaint.

Prior to trial, each side moved for summary judgment. The City filed a motion on Appellants' claims

under section 2 of the Voting Rights Act, arguing that because the Okeechobee Center did not satisfy the

7
On March 24, 1997, the district court granted Okeechobee tenant Charles Jackson's motion to
withdraw as plaintiff. Three tenants remain in the suit.

6
statutory requirements for annexation set forth in Fla. Stat. Ann. § 171.044(1) (West Supp.1998), Appellants

had no available remedy. Appellants, in turn, moved for summary judgment on their constitutional claims.

On May 20, 1997, the district court granted summary judgment for Appellees on both the constitutional and

Voting Rights Act claims. The court also granted summary judgment sua sponte for the BGHA on the

remaining Title VI claims. Specifically, the district court held that because the Okeechobee Center was not

"contiguous" to the City of Belle Glade, Florida law prohibited its annexation; that race discrimination did

not cause the City's refusal to annex the Okeechobee Center; that judicially-compelled annexation was not

an available remedy under the Voting Rights Act; that an injunction prohibiting the City from discriminating

in future annexation decisions was not sufficiently specific to comply with Federal Rule of Civil Procedure

65(d); and, lastly, that there was no meaningful relief available for Appellants' Title VI claim because, even

if the district court ordered the BGHA to petition for annexation, Florida law still prohibited the City from

granting the request. See Burton v. City of Belle Glade, 966 F.Supp. 1178 (S.D.Fla.1997). This appeal

followed.

II.

We give plenary review to a district court's grant of summary judgment. See Harris v. Shelby County

Bd. of Educ., 99 F.3d 1078, 1082 (11th Cir.1996). The governing standard is by now well understood.

Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). As we have explained:

In assessing whether the movant has met this burden, the courts should view the evidence and all
factual inferences therefrom in the light most favorable to the party opposing the motion. All
reasonable doubts about the facts should be resolved in favor of the non-movant. If the record
presents factual issues, the court must not decide them; it must deny the motion and proceed to trial.
Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree
about the inferences that should be drawn from these facts. If reasonable minds might differ on the
inferences arising from undisputed facts, then the court should deny summary judgment.

7
Clemons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th Cir.1982) (citations omitted). To withstand

a summary judgment motion, the non-moving party must establish that, based on the evidence in the record,

there can be more than one reasonable conclusion as to the proper verdict. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Consequently, "[t]he mere existence of a

scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence

on which the jury could reasonably find for the [non-movant]." Id. at 252, 106 S.Ct. 2505; see also Walker

v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990).

A.

Section 1983: Fourteenth and Fifteenth Amendment Claims

Appellants8 contend that the BGHA's refusal to petition for annexation of the Okeechobee Center

and the City's failure to annex the Center denied them the equal protection of the laws and deprived them of

the right to vote on account of race, both by denying their right to vote and by diluting their voting strength,

in violation of the Fourteenth and Fifteenth Amendments.9 Section 1983 provides a cause of action for

8
Both groups of Appellants—the black citizens and registered voters of Belle Glade and the black,
non-Belle-Glade-citizen tenants of the Okeechobee Center—make the same claims. We observe at the
outset, however, that in a very real sense these claims are distinct. The Okeechobee Center tenants'
claimed injury stems from an allegedly improper racial motive in Appellees' annexation decisions
concerning the Okeechobee Center. These allegations give rise to a traditional race discrimination claim
under the Equal Protection Clause of the Fourteenth Amendment, and a vote denial claim under the
Fifteenth Amendment. In contrast, we construe the citizens of Belle Glade to complain that the BGHA
and the City purposefully employed discriminatory practices to dilute the voting strength of black citizens
within the City's boundaries. These discriminatory practices, if proved, allegedly injured Belle Glade
citizens because they enjoyed the right to vote in Belle Glade. Because the Okeechobee Center tenants
never possessed a right to vote within the City, Appellants' constitutional vote dilution claim may only be
premised on the injuries of the Belle Glade citizens. See Socialist Workers Party v. Leahy, 145 F.3d
1240, 1244 (11th Cir.1998). However, because vote dilution, vote denial, and traditional race
discrimination claims arising under the Fourteenth and Fifteenth Amendments all require proof of
intentional discrimination, see infra, we address Appellants' § 1983 claims as one.
9
The Supreme Court has not yet determined conclusively whether vote dilution is prohibited by the
Fourteenth Amendment, the Fifteenth Amendment, or both. See Reno v. Bossier Parish Sch. Bd., 520
U.S. 471, 495, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (Breyer, J., concurring in part and concurring in
judgment) (citing Rogers v. Lodge, 458 U.S. 613, 617, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982)
(Fourteenth Amendment covers vote dilution claims); City of Mobile v. Bolden, 446 U.S. 55, 66, 100

8
constitutional violations committed under color of state law.10 To prevail, plaintiffs must demonstrate both

that the defendants deprived them of a right secured under the Constitution or federal law and that the

deprivation occurred under color of state law. See Arrington v. Cobb County, 139 F.3d 865, 872 (11th

S.Ct. 1490, 64 L.Ed.2d 47 (1980) (plurality opinion) (same), and comparing Mobile, 446 U.S. at 62-63,
100 S.Ct. 1490 (intentional vote dilution may be illegal under Fifteenth Amendment), and Gomillion v.
Lightfoot, 364 U.S. 339, 346, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) (Fifteenth Amendment covers
municipal boundaries drawn to exclude blacks), with Mobile, 446 U.S. at 84 n. 3, 100 S.Ct. 1490
(Stevens, J., concurring in judgment) (Mobile plurality said that Fifteenth Amendment does not reach vote
dilution); Voinovich v. Quilter, 507 U.S. 146, 159, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) ("This Court
has not decided whether the Fifteenth Amendment applies to vote-dilution claims...."); Shaw v. Reno, 509
U.S. 630, 645, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (endorsing the Gomillion concurrence's
Fourteenth Amendment approach); Beer v. United States, 425 U.S. 130, 142 n. 14, 96 S.Ct. 1357, 47
L.Ed.2d 629 (1976)). Both Amendments, however, require proof of discriminatory purpose. See Bossier
Parish, 520 U.S. at 481, 117 S.Ct. 1491 ("Since 1980, a plaintiff bringing a constitutional vote dilution
challenge, whether under the Fourteenth or Fifteenth Amendment, has been required to establish that the
state or political subdivision acted with a discriminatory purpose."); Lucas v. Townsend, 967 F.2d 549,
551 (11th Cir.1992) (per curiam) (holding that claims of vote dilution under the Fourteenth and Fifteenth
Amendment require proof of "a racially discriminatory purpose chargeable to the state"). Therefore, we
decline to address this distinction.

Appellants' initial complaint also alleged vote dilution claims under the First and Thirteenth
Amendments. Appellants argue that the district court erred in granting Appellees' motion to
dismiss those claims. But since the First and Thirteenth Amendments afford no greater protection
for voting rights claims than that already provided by the Fourteenth and Fifteenth Amendments,
see Washington v. Finlay, 664 F.2d 913, 927-28 (4th Cir.1981); Lucas v. Townsend, 783 F.Supp.
605, 618 (M.D.Ga.1992), aff'd on other grounds, 967 F.2d 549 (11th Cir.1992), we conclude that
the district court did not err in dismissing these claims.
10
Section 1983 provides, in relevant part, that "[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of
the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding
for redress...." 42 U.S.C. § 1983.

Early in this litigation, Appellees moved to dismiss Appellants' First Amended Complaint
on the ground that they improperly pleaded claims directly under the Constitution. The district
court granted this motion without prejudice and Appellants filed a Second Amended Complaint.
Appellants now argue that the district court erred in dismissing their first complaint. However,
because Appellants were made whole by filing a second complaint, see Fed.R.Civ.P. 15(a), this
issue is now moot. See Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1511 n. 3 (11th
Cir.1996) (" 'Central to a finding of mootness is a determination by an appellate court that it
cannot grant effective judicial relief.' ") (quoting In re Club Assocs., 956 F.2d 1065, 1069 (11th
Cir.1992)).

9
Cir.1998). Because Appellees concede they acted under color of state law, we need only address whether

Appellees acted in violation of the Constitution.

Section 1983 claims, moreover, are governed by the forum state's residual personal injury statute of

limitations. See Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Wilson v.

Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Specifically, a plaintiff must commence

a § 1983 claim arising in Florida within four years of the allegedly unconstitutional or otherwise illegal act.

See Baker v. Gulf & Western Indus., Inc., 850 F.2d 1480, 1483 (11th Cir.1988). The City's 1995 decision

to deny Appellants' request for annexation of the Okeechobee Center is the only act that occurred during the

limitations period. Therefore, Appellants' § 1983 claims rest solely on the constitutionality of that decision.

Moreover, to establish a violation of either the Equal Protection Clause of the Fourteenth

Amendment or the Fifteenth Amendment, Appellants must show that the City's decision or act had a

discriminatory purpose and effect. See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 481, 117 S.Ct. 1491,

137 L.Ed.2d 730 (1997); Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265,

97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 241-42, 96 S.Ct. 2040, 48 L.Ed.2d

597 (1976). Discriminatory purpose may be established by proof that the City used race as a substantial or

motivating factor in its annexation decisions and practices. See Arlington Heights, 429 U.S. at 265-66, 97

S.Ct. 555. If the City's annexation decisions created an express racial classification, no inquiry into

discriminatory purpose is necessary. See Shaw v. Reno, 509 U.S. 630, 642, 113 S.Ct. 2816, 125 L.Ed.2d 511

(1993) (citing Personnel Administrator v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)).

However, once a discriminatory purpose is established, the burden shifts to Appellees to prove that, at the

time of the discriminatory act, the same decision would have been made for a legitimate reason. See Mount

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

We evaluate all available direct and circumstantial evidence of intent in determining whether a

discriminatory purpose was a motivating factor in a particular decision. In Arlington Heights, the Supreme

10
Court suggested that relevant evidentiary factors include substantial disparate impact, a history of

discriminatory official actions, procedural and substantive departures from the norms generally followed by

the decision-maker, and the legislative and administrative history of the decision. See 429 U.S. at 265-69,

97 S.Ct. 555. Moreover, we have repeatedly recognized that evidence of " '[t]he historical background of the

decision' " is relevant to the issue of discriminatory intent. Williams v. City of Dothan, 745 F.2d 1406, 1415

(11th Cir.1984) (quoting Arlington Heights, 429 U.S. at 267, 97 S.Ct. 555); see also Elston v. Talladega

County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir.1993) (holding that discriminatory intent may be

established by, among other things, a history of discriminatory official actions); Ammons v. Dade City, 783

F.2d 982, 988 (11th Cir.1986) (per curiam) (noting that district court "correctly relied upon a large body of

constitutional jurisprudence which recognizes that the historical context of a challenged activity may

constitute relevant evidence of intentional discrimination"); Dowdell v. City of Apopka, 698 F.2d 1181, 1186

(11th Cir.1983) (recognizing that historical pattern of decision-making was relevant to district court's finding

of discriminatory intent). Indeed, all "actions having foreseeable and anticipated disparate impact are relevant

evidence to prove the ultimate fact, forbidden purpose." Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464,

99 S.Ct. 2941, 61 L.Ed.2d 666 (1979).11

At the heart of their appeal, Appellants argue that the district court erred in holding that no reasonable

jury could conclude that race was a substantial or motivating factor in the City's 1995 annexation decision.

Appellants point to three categories of evidence supporting a claim of intentional race discrimination: first,

11
Appellants suggest that the district court erred in excluding relevant evidence that occurred outside
of the statute of limitations period. Specifically, Appellants assert that the four-year statute of limitations
should not operate to exclude relevant historical evidence of past discriminatory practices. To the extent
the district court suggested that it would exclude evidence of discrimination that preceded the 1995 act at
issue—the only act occurring within the limitations period—we believe that the district court erred. See
City of Dothan, 745 F.2d at 1415-16 (holding that district court erred in excluding evidence of municipal
decisions that occurred outside the statute of limitations period on ground that evidence was relevant to
issue of defendant's later discriminatory intent). However, because the district court did, in fact, consider
all of Appellants' evidence, see Burton, 966 F.Supp. at 1182, and because an examination of all of the
proffered evidence does not alter the result, any error plainly would be harmless.

11
Appellants assert that since there was direct evidence of a de jure racial classification in Belle Glade housing

before 1977, any inquiry into Appellees' discriminatory intent is unnecessary; second, they suggest that the

bizarre shape of the City's municipal boundaries is circumstantial evidence of improper racial motive under

Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993); and third, they contend that they have

presented substantial circumstantial evidence of the City's discriminatory intent in failing to annex the

Okeechobee Center. Taken together, they argue, these categories of evidence raise a genuine issue of material

fact as to whether race was a substantial or motivating factor in the City's 1995 decision to refuse annexation

of the Okeechobee Center. We are not persuaded by Appellants' arguments either standing alone or in

concert, but consider each in turn.

1.

De Jure Racial Classification

Appellants first argue that the City's annexation of the Osceola Center constituted the enforcement

of a de jure racial classification. Because Belle Glade ordinances required racial segregation in residential

housing, Appellants contend that the City's annexation of the Osceola Center back in 1961 constituted the

enforcement of a de jure racial classification. Appellants, therefore, assert that the district court erred in

failing to engage in the stringent review required for cases involving prior de jure segregation. This claim

is unavailing.

The central purpose of the Equal Protection Clause of the Fourteenth Amendment is to prohibit states

from discriminating against individuals on the basis of race. Plainly, where the racial classification appears

on the face of the statute, no inquiry into legislative purpose is necessary. See Shaw, 509 U.S. at 642, 113

S.Ct. 2816 (citing Feeney, 442 U.S. at 272, 99 S.Ct. 2282). Such racial classifications are presumptively

invalid and can only survive constitutional scrutiny if they are justified by a compelling state interest and are

narrowly tailored to serve that interest. See id. at 643, 113 S.Ct. 2816. Moreover, Appellants argue that

defendants should carry an even greater burden in this case, just as they do in the context of higher education.

12
See United States v. Fordice, 505 U.S. 717, 727-32, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992). Where there

is evidence that a current practice is "traceable" to or is "rooted" in a prior policy of segregation in education,

defendants can only avoid liability by proving that the current policy does not have "continuing segregative

effects or, even if it does, that there exists no practicable and educationally sound means of remedying any

such effects." Knight v. Alabama, 14 F.3d 1534, 1550 (11th Cir.1994).

In this case, however, the district court did not err in failing to require Appellees to prove that they

attempted to remedy the effects of prior de jure segregation. In the first place, Appellants can point to no

court that has ever applied Fordice outside of the education setting. Indeed, given the unique nature of school

desegregation, we hesitate to extend Fordice to a property annexation case. But even if we assume,

arguendo, that the analysis applies, Appellants have failed to demonstrate that the City's 1995 annexation

decision is, in any way, "traceable" to or "rooted" in past de jure segregation. Knight, 14 F.3d at 1540-41

(noting that plaintiff has burden of proof to show that challenged policy is "traceable" to past segregation).

The City's 1961 decision to annex the Osceola Center, the white housing project, and the concomitant

"determination" not to annex the Okeechobee Center, the black housing project, when the BGHA only

petitioned for Osceola's annexation, neither created a racial classification nor enforced the City's segregation

laws. Although the two centers were segregated by race in 1961, on this record there is simply no evidence

that residential segregation laws dictated which center the City annexed, or, indeed, that race played any role

in the process. Moreover, there is no evidence that the City had any policy, either in 1961 or later, of making

annexation decisions on the basis of the race of the residents in the proposed annexation areas. It is even

unclear on this record that the City ever entertained a request to annex the Okeechobee Center in 1961, or,

for that matter, that the Okeechobee Center was similarly situated to the Osceola Center, let alone evidence

showing that the decision to annex the Osceola Center was somehow based on the race of its occupants.

Nondiscriminatory reasons were offered to explain the Osceola annexation—including evidence that the

BGHA requested annexation to provide City police protection to the residents due to ongoing threats against

13
the center's manager—and Appellants have presented nothing to rebut this. While it is undeniably true that

the two centers were segregated by race in 1961, Appellants notably have been unable to draw some

connection between that de jure policy and the decision to annex the Osceola Center. Accordingly, we cannot

find that the City enforced any policy of racial classification in its annexation decisions. Absent such

evidence, the district court did not err in refusing to require Appellees to present evidence of their efforts to

remedy prior de jure segregation.

The very most Appellants could argue is that the existence of the City's segregation ordinances may

have raised an inference of discriminatory intent back in 1961. The existence of these ordinances, however,

which were abolished more than twenty years before the 1995 decision, can in no way transform this cause

of action into a challenge to the enforcement of a racial classification or de jure segregation.

2.

Municipal Boundaries

Appellants also suggest that the municipal boundaries of the City of Belle Glade are so bizarre as to

raise an inference of racially discriminatory intent under the racial gerrymandering case of Shaw v. Reno, 509

U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). Appellants assert that the City's decision to annex State

Road Number 80 in 1965 and its deliberate decision not to annex the black population centers on either side

of the highway, rendered the boundaries of Belle Glade bizarre. They argue, therefore, that this annexation

is facially suspect and triggers strict scrutiny under the Fourteenth Amendment, and that the district court

again erred in failing to shift the burden to Appellees to produce evidence that the municipal boundary was

shaped by decisions that were narrowly tailored to achieve a compelling governmental interest. We find this

argument similarly unpersuasive.

To establish that a districting scheme amounts to impermissible racial gerrymandering, a plaintiff

bears the burden of proving that race was the predominant factor in the legislature's decision either through

" 'circumstantial evidence of a district's shape and demographics' or through 'more direct evidence going to

14
legislative purpose.' " Shaw v. Hunt, 517 U.S. 899, 905, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) [hereinafter

Shaw II ] (quoting Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995)). As the

Supreme Court explained in Miller:

Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a
threshold requirement of proof, but because it may be persuasive circumstantial evidence that race
for its own sake, and not other districting principles, was the legislature's dominant and controlling
rationale in drawing its district lines.

515 U.S. at 913, 115 S.Ct. 2475. A plaintiff will not prevail, however, simply by pointing to the bizarre shape

of a legislative district where the district lines are facially race neutral. Under those circumstances, "a more

searching inquiry is necessary before strict scrutiny can be found applicable." Bush v. Vera, 517 U.S. 952,

958, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion) (quotations omitted). Moreover, a state may

defeat an allegation of racial gerrymandering by establishing that race-neutral considerations motivated the

redistricting legislation and that those considerations were not "subordinated" to race. Miller, 515 U.S. at

916, 115 S.Ct. 2475. Once a plaintiff proves that race was the predominant factor, however, the redistricting

decision then becomes subject to strict scrutiny: it must be justified by a compelling state interest and be

narrowly tailored to achieve that interest. See Shaw II, 517 U.S. at 908, 116 S.Ct. 1894 (citing Miller, 515

U.S. at 920, 115 S.Ct. 2475).

Appellants' Shaw argument faces multiple infirmities.12 To begin with, as far as we can discern, no

court has ever applied Shaw outside the racial gerrymandering context. Moreover, Shaw and other racial

gerrymandering cases are legally distinguishable from the instant case. In racial gerrymandering cases,

plaintiffs typically challenge laws affirmatively enacted to alter the boundaries of voting districts. These

12
It is unclear whether all of the Appellants have standing to bring a Fourteenth Amendment claim
under Shaw. In United States v. Hays, 515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995), the
Supreme Court held that plaintiffs who reside in a racially gerrymandered district have standing to
challenge a legislature's reapportionment scheme. See id. at 745, 115 S.Ct. 2431. For non-resident
plaintiffs to have standing, however, the Court noted that they would have to show specific evidence that
they were personally subjected to a racial classification. See id. Here, the non-BelleGlade-citizen
Appellants would have to prove that they personally were not annexed into the City on the basis of their
race.

15
jurisdictions are under an affirmative legal duty to alter their boundaries to reflect shifts or alterations in

population. In sharp contrast, however, is a city's right to determine if and when it will expand its municipal

boundaries. Although the City of Belle Glade may well be bizarrely shaped, its contours were created over

an extended time period as hundreds of individual parcels were brought into its ambit incrementally; it was

not created by a single scheme designed to exclude property on the basis of race. Cf. Chen v. City of Houston,

9 F.Supp.2d 745, 754 (S.D.Tex.1998) (refusing to apply strict scrutiny under Shaw solely based on

bizarreness of city's redistricting plan where repeated annexation, not districting decision-making, caused

irregular shape of districts). Moreover, not surprisingly, Appellants have been unable to show that the

annexation of any specific piece of property, including the Okeechobee Center, would make the shape of the

City of Belle Glade any less "bizarre."

The central problem with Appellants' argument is that the City's shape has not been shown to have

been created because of any affirmative annexation plan. Rather, the City's pattern of annexation over time

merely reflects the aggregation of various owners' requests for annexation, which the City generally approves

so long as the proposed annexations satisfies the obligations of Florida law, and annexations initiated solely

by the City, which also must conform to Florida law and which City voters and annex residents must approve

by referendum. See Fla. Stat. Ann. §§ 171.044(1), 171.0413. Absent some other evidence, such as the

circumstances surrounding a multitude of other annexation decisions, the specific racial composition of each

of these areas, whether the unincorporated areas ever requested annexation, or perhaps some comparison of

the shapes of other Florida municipalities, we cannot find that the municipal boundaries alone raise an

inference of the City's racially discriminatory intent. Thus, whether or not a Shaw analysis could apply in

the context of municipal property annexation, the simple fact is that this record is wholly insufficient to raise

a genuine issue of material fact to support a distinct claim under Shaw.

3.

Circumstantial Evidence of Discrimination

16
 Finally, Appellants claim that the circumstantial evidence, when weighed together, establishes the

City's discriminatory motive or intent in refusing to annex the Okeechobee Center in 1995. Indeed,

Appellants argue that the City's annexation decisions cannot be explained in non-racial terms. Appellants,

therefore, contend that the district court erred in concluding that they failed to raise a genuine issue of

material fact as to whether race was a substantial or motivating factor behind the City's 1995 decision to

refuse annexation of the Okeechobee Center. See Arlington Heights, 429 U.S. at 265-66, 97 S.Ct. 555.

Appellants also assert that the district court further erred in failing to shift the burden to Appellees to prove

that, at the time of the discriminatory act, the same decision would have been made for a legitimate reason.

See Mount Healthy, 429 U.S. at 287, 97 S.Ct. 568. Appellants are incorrect on both counts.

Turning to the circumstantial evidence surrounding the 1995 decision, Appellants contend that two

additional pieces of evidence establish the City's discriminatory purpose. Appellants argue that the City's

justification of costs in refusing to annex the Okeechobee Center raises an inference of race discrimination

because the City does not usually consider costs when deciding whether to annex property. Appellants also

assert that the City's view that Florida law prohibited annexation of the Okeechobee Center was a mere

pretext for the City's discriminatory purpose. Neither argument raises an inference of discriminatory intent.

First, the City's reliance on cost as a justification for refusing to annex the Okeechobee Center in

1995 does not raise a genuine issue of material fact as to the City's allegedly improper racial motive.

Appellants have offered no evidence to support their contention that the City does not usually consider cost

in making annexation decisions. However, even if we were to assume, arguendo, that some disparity exists,

we fail to see how reliance on cost here raises an inference of race animus. As the Annexation Committee

found back in 1984, providing the necessary municipal services to the Okeechobee Center would be a very

expensive proposition for the City of Belle Glade. Moreover, because the property is exempt from ad

valorem taxes, the City would enjoy little revenue to offset this expense. Thus, the City's reliance on costs

was altogether reasonable under the circumstances. Indeed, a Florida municipality has an obligation to its

17
citizens to consider the economic impact of annexations.13 Therefore, we decline to accept Appellants'

suggestion that the City's reliance on cost was a pretext for race discrimination.

Second, the City's conclusion that Florida law prohibited annexation of the Okeechobee center does

not raise an inference of race discrimination. The parties do not dispute that the Okeechobee Center could

only be annexed if contiguous to the City, and that its contiguity would arise only from its proximity to State

Road Number 80, which the City annexed in 1965. Therefore, Okeechobee's contiguity turns on whether a

municipality may use a previously annexed road to gain contiguity to otherwise non-contiguous property.

Florida law, however, is hotly disputed and far from settled on this question.

Since 1974, Florida law has provided that an owner of reasonably compact14 property that is

contiguous15 to a municipality may petition for annexation. See Fla. Stat. Ann. § 171.044(1) (West

13
Section 171.021 provides:

The purposes of this act are to set forth procedures for adjusting the boundaries
of municipalities through annexations or contractions or corporate limits and to set forth
criteria for determining when annexations or contractions may take place so as to:

(1) Insure sound urban development and accommodation to growth.

(2) Establish uniform legislative standards throughout the state for the adjustment
of municipal boundaries.

(3) Insure the efficient provision of urban services to areas that become urban in
character.

(4) Insure that areas are not annexed unless municipal services can be provided to
those areas.

Fla. Stat. Ann. § 171.021.
14
" 'Compactness' means concentration of a piece of property in a single area and precludes any action
which would create enclaves, pockets, or finger areas in serpentine patterns. Any annexation proceeding
in any county in the state shall be designed in such a manner as to ensure that the area will be reasonably
compact." Fla. Stat. Ann. § 171.031(12).
15
" 'Contiguous' means that a substantial part of a boundary of the territory sought to be annexed by
the municipality is coterminous with a part of the boundary of the municipality.... However, nothing
herein shall be construed to allow local rights-of-way, utility easements, railroad rights-of-way, or like

18
Supp.1998). In 1977, the Florida Attorney General considered whether Florida law permitted a municipality

to annex property only contiguous to the municipality by virtue of a previously annexed road.16 See 1977 Fla.

Op. Atty. Gen. 35. Recognizing that no Florida appellate court had considered the issue, the Attorney

General concluded that a parcel may not be voluntarily annexed if it is only contiguous to the City by virtue

of a previously annexed highway because such annexation would violate both Florida's contiguity

requirement and its prohibition against the creation of enclaves. See id. Then, in 1985, the Attorney General

considered whether a municipality could voluntarily annex property contiguous on one side to a previously

annexed, 125 foot-wide corridor of unimproved land, but otherwise surrounded by unincorporated property.

See 1985 Fla. Op. Atty. Gen. 163. Although concluding that the city could not voluntarily annex the parcel

because it would result in the creation of a prohibited enclave, the Attorney General found that Florida's

contiguity requirement would not prohibit the municipality from using the corridor of unimproved land to

gain contiguity because the statute did not apply to property annexed before 1974. Id. The Attorney General,

however, never reconciled his finding of contiguity in the 1985 opinion with the conclusion he had reached

eight years earlier.

Based on this undeniably conflicting authority, we conclude that the City's reliance on the 1974

annexation statute as a justification for the denial of Peterson's request to annex the Okeechobee Center does

entities to be annexed in a corridor fashion to gain contiguity...." Fla. Stat. Ann. § 171.031(11).

Prior to 1975, section 171.031(11) stated, in relevant part: "Local rights-of-way, utility
easements, or railroad rights-of-way shall not be annexed in a corridor fashion to gain contiguity
nor shall such activity be deemed to establish the contiguity required under this act." 1974 Fla.
Laws ch. 74-190, § 1 (emphasis added). Since the underscored language was deleted in 1975, see
1975 Fla. Laws ch. 75-297, Appellants contend that the statute only prohibits annexation of roads
to gain contiguity, but it does not bar annexation of property contiguous to a previously annexed
road. Even assuming, arguendo, that Appellants' statutory interpretation is correct—and we have
no need to resolve this question of Florida law today—the amended language does not establish
that the City's statutory interpretation was unreasonable.
16
Although Florida Opinions of the Attorney General are not binding on this Court, they "are entitled
to careful consideration and generally should be regarded as highly persuasive" of matters of Florida law.
State v. Family Bank of Hallandale, 623 So.2d 474, 478 (Fla.1993).

19
not raise a genuine issue of material fact as to the City's discriminatory intent in 1995. Even if we were to

determine today that Florida law permits annexation—and the law is anything but clear as to this matter—we

would still conclude that the City's interpretation was an altogether reasonable one given the plainly

conflicting Attorney General opinions.17 In short, the City's reliance on the 1974 annexation statute cannot

fairly be taken as being a pretext for race discrimination.

The only other evidence presented by Appellants relates to the historical background to the City's

1995 decision. However, "the historical background for a given decision is only one factor relative to intent.

It does not, by itself, compel [a court] to find a discriminatory purpose behind every statute passed during

regrettable periods of [a state's] past." Hall v. Holder, 117 F.3d 1222, 1226-27 (11th Cir.1997). Nevertheless,

Appellants point to three pieces of historical evidence. First, the City's housing ordinances mandated

residential segregation until 1963. Second, the Osceola and Okeechobee Centers were segregated by race

until 1977. Lastly, the BGHA failed to petition the Okeechobee Center in 1961 and 1973 and the City failed

to annex in 1961, 1971, and 1985. This evidence is far too remote and attenuated to be probative of any

discriminatory purpose in 1995. Simply put, we fail to see how evidence of past residential segregation in

housing, which ended almost twenty years before the decision at issue, and which is wholly unconnected to

any annexation decision, or a prior refusal to annex standing alone establishes any intent, let alone a

discriminatory one, in 1995. As we said in Holder, "past discrimination cannot, in the manner of original sin,

condemn governmental action that is not itself unlawful." Id. (quoting Mobile, 446 U.S. at 74, 100 S.Ct.

17
Indeed, the district court determined that the City's interpretation was correct as a matter of statutory
construction. See Burton, 966 F.Supp. at 1183. According to the district court, the propriety of using a
road annexation to gain contiguity cannot turn on the subjective intent of the municipality in initially
annexing the road. The court reasoned that the Florida legislature could not have intended for so strange
a construction. See id. at 1183-84. However, we need not reach the merits of this issue to resolve the
instant case.

Concluding that the proposed annexation of the Okeechobee Center would have been
illegal under Florida law since 1974, the district court also held that this statute was the
intervening cause of Appellants' injuries. See Burton, 966 F.Supp. at 1183-84. Again, it is
unnecessary to reach the merits of this issue.

20
1490); see also Freeman v. Pitts, 503 U.S. 467, 495-96, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992).

Appellants' historical evidence does not raise a genuine issue of material fact as to whether the City's 1995

decision to refuse annexation of the Okeechobee Center was motivated by race.

On the basis of this record, viewing all of the circumstantial evidence and drawing all inferences in

the light most favorable to Appellants, we conclude that Appellants have failed to raise a genuine issue of

material fact as to whether the City's 1995 decision was racially motivated. No jury could reasonably find

for Appellants based on this record. In the first place, the City's reliance on cost—a possible expense to the

City of close to one million dollars—was an altogether reasonable basis on which to refuse annexation.

Second, the City's reliance on Florida's contiguity requirement to deny annexation was likewise reasonable

given the conflicting authority in Florida law, and in no way supports an inference of pretext for race

discrimination. Lastly, Appellants' historical evidence, which at most arguably raised an inference of the

City's discriminatory intent in the 1960s and 1970s, offers no plausible connection between any conceivable

discriminatory intent rooted in the past and the 1995 act at issue today. Taken together, this evidence does

not raise a genuine issue of material fact as to the City's discriminatory intent in 1995.

Finally, the district court did not err in failing to consider the second prong of the Mount Healthy test.

If Appellants cannot first prove that race was a motivating factor, there is no basis for shifting the burden to

the City to determine whether, by a preponderance of the evidence, it would have made the same decision

notwithstanding its racial motivation. See Mount Healthy, 429 U.S. at 287, 97 S.Ct. 568. Accordingly, we

hold that the district court properly granted summary judgment in favor of Appellees on Appellants' § 1983

claims.

B.

Section 2 of the Voting Rights Act of 1965

Appellants also contend that the BGHA's refusal to petition and the City's failure to annex the

Okeechobee Center violated section 2 of the Voting Rights Act of 1965. Section 2, 42 U.S.C. § 1973, "was

21
designed as a means of eradicating voting practices that 'minimize or cancel out the voting strength and

political effectiveness of minority groups.' " Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 479, 117 S.Ct.

1491, 137 L.Ed.2d 730 (1997) (quoting S.Rep. No. 97-417, at 28 (1982), reprinted in 1982 U.S.C.C.A.N.

177, 205). It "prohibits all forms of voting discrimination." Thornburg v. Gingles, 478 U.S. 30, 45 n. 10, 106

S.Ct. 2752, 92 L.Ed.2d 25 (1986) (citing S.Rep. No. 97-417 at 30, reprinted in 1982 U.S.C.C.A.N. at 207-

08). Specifically, two distinct types of discriminatory practices and procedures are covered under section 2:

those that result in "vote denial" and those that result in "vote dilution."

In 1982, Congress amended section 2 to clarify that a plaintiff may establish a violation by a showing

of discriminatory results alone.18 See Voting Rights Act Amendments of 1982, Pub.L. No. 97-205, § 3, 96

Stat. 131, 134 (1982). As amended, section 2 states:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall
be imposed or applied by any State or political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to vote on account of race or color, or in
contravention of the guarantees set forth in section 1973b(f)(2)19 of this title, as provided in
subsection (b) of this section.

(b) A violation of subsection (a) of this section is established if, based on the totality of the
circumstances, it is shown that the political processes leading to nomination or election in the State
or political subdivision are not equally open to participation by members of a class of citizens
protected by subsection (a) of this section in that its members have less opportunity than other
members of the electorate to participate in the political process and to elect representatives of their
choice. The extent to which members of a protected class have been elected to office in the State or
political subdivision is one circumstance which may be considered: Provided, That nothing in this
section establishes a right to have members of a protected class elected in numbers equal to their
proportion in the population.

18
This amendment superceded the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55,
61-62, 100 S.Ct. 1490 (1980) (plurality opinion), which had held that both the Fifteenth Amendment and
section 2 of the Voting Rights Act require proof of intentional discrimination.
19
Section 1973b(f)(2) provides: "No voting qualification or prerequisite to voting, or standard,
practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge
the right of any citizen of the United States to vote because he is a member of a language minority group."
42 U.S.C. § 1973b(f)(2) (1994).

22
42 U.S.C. § 1973(a), (b). Subsection (b) has come to be known as the "results test" because it seeks to

measure the effect of vote dilution.20

20
A Senate Report accompanying the 1982 amendment sets forth " 'typical factors' " that may show a
violation of section 2 under this test. Gingles, 478 U.S. at 36, 106 S.Ct. 2752 (quoting S.Rep. No. 97-417
at 28-29, reprinted in 1982 U.S.C.C.A.N. at 206-207). These factors include:

"1. the extent of any history of official discrimination in the state or political
subdivision that touched the right of the members of the minority group to register, to
vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision
is racially polarized;

3. the extent to which the state or political subdivision has used unusually large
election districts, majority vote requirements, anti-single shot provisions, or other voting
practices or procedures that may enhance the opportunity for discrimination against the
minority group;

4. if there is a candidate slating process, whether the members of the minority
group have been denied access to that process;

5. the extent to which members of the minority group in the state or political
subdivision bear the effects of discrimination in such areas as education, employment and
health, which hinder their ability to participate effectively in the political process;

6. whether political campaigns have been characterized by overt or subtle racial
appeals; [and]

7. the extent to which members of the minority group have been elected to public
office in the jurisdiction.

Additional factors that in some cases have had probative value as part of
plaintiffs' evidence to establish a violation are:

whether there is a significant lack of responsiveness on the part of elected
officials to the particularized needs of the members of the minority group [and]

whether the policy underlying the state or political subdivision's use of such
voting qualification, prerequisite to voting, or standard, practice or procedure is
tenuous."

Id. at 36-37, 106 S.Ct. 2752 (quoting S.Rep. No. 97-417 at 28-29, reprinted in 1982
U.S.C.C.A.N. at 206-07). However, " 'there is no requirement that any particular number of
factors be proved, or that a majority of them point one way or the other.' " Id. at 45, 106 S.Ct.
2752 (quoting S.Rep. No. 97-417 at 29, reprinted in 1982 U.S.C.C.A.N. at 206-07).

23
 Appellants have alleged claims of both vote denial and vote dilution.21 The district court, however,

elected not to reach the merits of either of Appellant's section 2 claims. Rather, the district court granted

Appellees' motion for summary judgment explaining that mandatory annexation is not an available remedy

under the Voting Rights Act. The district court also considered each of the required factors in a vote dilution

claim, see infra II.B.2, and concluded that it doubted whether Appellants had even made a prima facie

showing under section 2. See Burton, 966 F.Supp. at 1186 n. 10. After thoroughly searching this record, we

likewise conclude that Appellants have failed to establish a genuine issue of material fact as to either vote

denial or vote dilution under section 2 of the Voting Rights Act.22 On the record presented, we agree with the

district court that court-ordered annexation is not an appropriate remedy to redress either of Appellants'

alleged injuries—vote denial or vote dilution.23

1.

Vote Denial

21
Appellants' vote dilution claim, we believe, may be premised only upon the claimed injuries of Belle
Glade's black citizens. This is true because only those who enjoy the right to vote in Belle Glade may
have their voting strength diluted by the City's annexation decisions. In contrast, Appellants' vote denial
claim may only arise from injuries of black tenants of the Okeechobee Center. See supra note 8.
22
We need not reach the question of whether a challenge to a city's failure to annex adjacent property
is cognizable under section 2 of the Voting Rights Act. In Perkins v. Matthews, the Supreme Court held
that municipal annexation is a " 'standard, practice or procedure with respect to voting' " that is subject to
preclearance under section 5 of the Voting Rights Act. 400 U.S. 379, 388, 91 S.Ct. 431, 27 L.Ed.2d 476
(1971) (quoting Voting Rights Act of 1965 § 5, 42 U.S.C. § 1973c). Sections 2 and 5, however, "combat
different evils and ... impose very different duties upon the States." See Bossier Parish, 520 U.S. 471,
477, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997). We only assume, arguendo, that the City of Belle Glade's
refusal to annex the Okeechobee Center is a "standard, practice, or procedure" that gives rise to a claim
under section 2. 42 U.S.C. § 1973(a). But see Holder v. Hall, 512 U.S. 874, 884, 114 S.Ct. 2581, 129
L.Ed.2d 687 (1994) (opinion of Kennedy, J., joined by Rehnquist, C.J.) ("[W]e think it quite improbable
to suggest that a § 2 dilution challenge could be brought to a town's existing political boundaries (in an
attempt to force it to annex surrounding land) by arguing that the current boundaries dilute a racial
group's voting strength in comparison to the proposed new boundaries.").
23
We address the availability of a remedy as part of Appellants' prima facie case of vote dilution.

24
 Vote denial occurs when a state, or here a municipality, employs a "standard, practice, or procedure"

that results in the denial of the right to vote on account of race. 42 U.S.C. § 1973(a). To prevail, Appellants

must prove that, "under the totality of the circumstances, ... the political processes ... are not equally open to

participation by [members of a protected class] ... in that its members have less opportunity than other

members of the electorate to participate in the political process and to elect representatives of their choice."

42 U.S.C. § 1973(b). In making this determination, "a court must assess the impact of the contested structure

or practice on minority electoral opportunities 'on the basis of objective factors.' " Gingles, 478 U.S. at 44,

106 S.Ct. 2752 (quoting S.Rep. No. 97-417 at 27, reprinted in 1982 U.S.C.C.A.N. at 205); see factors listed

supra note 20.

Appellants have failed to raise a genuine issue of material fact as to whether they were denied the

right to vote on account of race. First, they have not offered any evidence of a " 'history of official

discrimination in the state or political subdivision that touched the right of the members of the minority group

to register, to vote, or otherwise to participate in the democratic process.' " Gingles, 478 U.S. at 36-37, 106

S.Ct. 2752 (quoting S.Rep. No. 97-417 at 28, reprinted in 1982 U.S.C.C.A.N. at 206). Although Appellants

have presented evidence of housing segregation in Belle Glade and in the two centers, we can find no

evidence of any discrimination with respect to voting. Second, there is no evidence that Belle Glade uses or

used any " 'voting practices or procedures that may enhance the opportunity for discrimination against the

minority group.' " Id. at 37, 106 S.Ct. 2752 (quoting S.Rep. No. 97-417 at 28, reprinted in 1982

U.S.C.C.A.N. at 206). Third, we can find no evidence in this record that the black citizens of Belle Glade

" 'bear the effects of discrimination in such areas as education, employment and health, which hinder their

ability to participate effectively in the political process.' " Id. (quoting S.Rep. No. 97-417 at 28, reprinted

in 1982 U.S.C.C.A.N. at 206). Lastly, there is no evidence of any " 'significant lack of responsiveness on the

part of elected officials to the particularized needs of the members of the minority group.' " Id. (quoting

S.Rep. No. 97-417 at 28, reprinted in 1982 U.S.C.C.A.N. at 207). Nor is there any circumstantial evidence

25
tending to suggest that the tenants of the Okeechobee Center were denied the right to vote on account of their

race. Simply put, Appellants have failed to meet their burden of proving vote denial under section 2 of the

Voting Rights Act.

2.

Vote Dilution

In contrast, vote dilution occurs when an election practice results in the dilution of minority voting

strength and, thus, impairs a minority's ability to elect the representative of its choice.

In Thornburg v. Gingles, the Supreme Court identified three threshold preconditions for establishing

a section 2 vote dilution claim: (1) "the minority group must be able to demonstrate that it is sufficiently large

and geographically compact to constitute a majority in a single-member district"; (2) "the minority group

must be able to show that it is politically cohesive"; and (3) "the minority group must be able to demonstrate

that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred

candidate."24 478 U.S. 30, 50-51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Proof of each of these Gingles

factors is necessary, but not sufficient, to prevail under a section 2 vote dilution claim. See id. at 50, 106 S.Ct.

2752. Upon successfully establishing each of the Gingles prerequisites, plaintiffs also must show that, under

the totality of the circumstances, the challenged electoral scheme deprives them of "an equal measure of

political and electoral opportunity" to participate in the political process and to elect representatives of their

choosing. Johnson v. De Grandy, 512 U.S. 997, 1013, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994).

24
The Supreme Court has recognized that the Gingles factors "cannot be applied mechanically without
regard to the nature of the claim." Voinovich v. Quilter, 507 U.S. 146, 158, 113 S.Ct. 1149, 122 L.Ed.2d
500 (1993). To date, the Court has applied these factors to section 2 vote dilution claims challenging
multi-member districts, see Gingles, 478 U.S. at 48-51, 106 S.Ct. 2752; single-member districts, see
Growe v. Emison, 507 U.S. 25, 40, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993); and majority-minority
districts, see Voinovich, 507 U.S. at 153-54, 113 S.Ct. 1149. Moreover, in Brooks v. Miller, we recently
applied the Gingles factors to a section 2 claim challenging a majority vote requirement. See 158 F.3d
1230, 1239 (11th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 1805, --- L.Ed.2d ----, 67 U.S.L.W. 3614
(U.S. May 24, 1999) (No. 98-1521). No court has ever addressed, however, whether the Gingles factors
apply to a vote dilution claim premised on a failure to annex. Because Appellants have failed to meet the
three Gingles preconditions, we have no need to reach the merits of this question either.

26
 Appellants have failed to raise a genuine issue of material fact as to any of the three Gingles

prerequisites, and, therefore, their section 2 vote dilution claim must fail as well. We address each Gingles

factor in turn.

We have repeatedly construed the first Gingles factor as requiring a plaintiff to demonstrate the

existence of a proper remedy. See Brooks v. Miller, 158 F.3d 1230, 1239 (11th Cir.1998), cert. denied, ---

U.S. ----, 119 S.Ct. 1805, --- L.Ed.2d ----, 67 U.S.L.W. 3614 (U.S. May 24, 1999) (No. 98-1521); Davis v.

Chiles, 139 F.3d 1414, 1419 (11th Cir.1998), cert. denied, --- U.S.----, 119 S.Ct. 1139, 143 L.Ed.2d 208

(1999); Southern Christian Leadership Conference v. Sessions, 56 F.3d 1281, 1289, 1294-97 (11th Cir.1995)

(en banc); Nipper v. Smith, 39 F.3d 1494, 1530-31 (11th Cir.1994) (en banc). This requirement simply

serves " 'to establish that the minority has the potential to elect a representative of its own choice from some

single-member district.' " Nipper, 39 F.3d at 1530 (quoting Growe v. Emison, 507 U.S. 25, 40, 113 S.Ct.

1075, 122 L.Ed.2d 388 (1993)). Thus, if a minority cannot establish that an alternate election scheme exists

that would provide better access to the political process, then the challenged voting practice is not responsible

for the claimed injury. See Gingles, 478 U.S. at 50, 106 S.Ct. 2752. As we explained in Nipper:

The inquiries into remedy and liability ... cannot be separated: A district court must determine as part
of the Gingles threshold inquiry whether it can fashion a permissible remedy in the particular context
of the challenged system.

....

... The absence of an available remedy is not only relevant at the remedial stage of the litigation but
also precludes, under the totality of the circumstances inquiry, a finding of liability.

39 F.3d at 1530-31, 1533. Accordingly, the failure to establish the first Gingles factor—the availability of

a remedy—is fatal to a plaintiff's section 2 claim.

Appellants argue that the district court erred in concluding that court-ordered annexation and an

injunction against future discrimination in annexation decisions are not available remedies under the Voting

Rights Act. We disagree. Specifically, Appellants prayed for two different forms of relief to redress their

section 2 claims: an order requiring Belle Glade "to take all steps necessary to effectuate the annexation of

27
the Okeechobee Center" into Belle Glade, and an injunction prohibiting Belle Glade "from enforcing any and

all racially discriminatory policy(ies) in their decisions as to which parcels of land to annex."25 Neither of

these remedies are appropriate.

Court-ordered annexation is a remedy of unprecedented scope and magnitude. Indeed, we are not

surprised that Appellants cannot point to a single case, nor have we been able to find one, that has ordered

so unusual a remedy. For it is one thing for a court sitting in equity to proscribe policymakers from

employing unambiguously racial bases for decision-making and to order government entities to make

annexation decisions on race-neutral grounds, but it is quite another to force a municipality to expand its

physical boundaries by annexation. Moreover, courtordered annexation would bypass an inherently complex

political process. A municipality's decision when and where to annex unincorporated property requires a

series of carefully-calibrated political and economic judgments. For example, a municipality undoubtedly

must consider whether the property is reasonably compact and contiguous to the municipality, whether it

contains a sufficient financial base, whether annexation will require a substantial increase in municipal

services, and whether annexation will confer any non-pecuniary benefits to the municipality. Only after

measured evaluation of these and other factors would a municipality elect to proceed with annexation. In

stark contrast, court-ordered annexation circumvents this political process, and may result in numerous

unintended adverse consequences.26

25
Notably, Appellants have not sought the wholly impracticable remedy of deannexing the Osceola
Center, after close to forty years of Belle Glade citizenship.
26
Moreover, to the extent court-ordered annexation would require the municipality to raise taxes in
order to absorb the new property, the remedy would run up against Supreme Court precedent in school
desegregation cases. In such cases, the Supreme Court has held that court-ordered tax increases
contravene "the principles of comity that must govern the exercise of the District Court's equitable
discretion." Missouri v. Jenkins, 495 U.S. 33, 50, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990); see also
Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990) (noting that court's
"broad equitable powers" to remedy past discrimination are not unlimited and should "take into account
the interests of state and local authorities in managing their own affairs" (internal quotation marks and
citations omitted)).

28
 We do not suggest that a federal court would never have the power to order annexation. It is enough

for us to conclude that the extraordinary and unprecedented remedy of court-ordered annexation is wholly

inappropriate on the facts presented. This conclusion in no way rests on a determination that Florida law

prohibits annexation of the Okeechobee Center. Indeed, we agree with the parties that where federal statutory

or constitutional rights have been violated, state law will not impede a court from fashioning an appropriate

remedy. See Armstrong v. Adams, 869 F.2d 410, 414 (8th Cir.1989). We find on this record only that the

district court did not err in concluding that court-ordered annexation was an inappropriate remedy to redress

Appellants' claims under the Voting Rights Act.

Turning to Appellants' alternate remedy, the district court correctly determined that an injunction

ordering the City not to discriminate in future annexation decisions would not satisfy the specificity

requirements of the Federal Rules of Civil Procedure. Under Rule 65(d), "[e]very order granting an

injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms;

[and] shall describe in reasonable detail, and not by reference to the complaint or other document, the act or

acts sought to be restrained." Fed.R.Civ.P. 65(d). This specificity requirement is necessary "to protect those

who are enjoined 'by informing them of what they are called upon to do or to refrain from doing in order to

comply with the injunction or restraining order.' " Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1531 (11th

Cir.1996) (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 2955 (2d ed.1995) (footnotes omitted)). Thus, an injunction must "contain 'an operative

command capable of enforcement.' " Id. (quoting International Longshoremen's Ass'n v. Philadelphia Marine

Trade Ass'n, 389 U.S. 64, 73-74, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967)). For example, in Payne v. Travenol

Labs., Inc., 565 F.2d 895 (5th Cir.1978), the former Fifth Circuit27 considered an injunction that prohibited

"discriminating on the basis of color, race, or sex in employment practices or conditions of employment."

27
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

29
Id. at 897. Invalidating the injunction for failure to satisfy Rule 65(d)'s specificity requirement, the Court

reasoned that where the terms of the injunction are as general as Title VII itself, the injunction does no more

than instruct a defendant to "obey the law." Id. at 898. A court is incapable of enforcing so broad and vague

an injunction.

Appellants seek to enjoin the City from discriminating on the basis of race in its annexation decisions.

As this injunction would do no more than instruct the City to "obey the law," we believe that it would not

satisfy the specificity requirements of Rule 65(d) and that it would be incapable of enforcement. See Payne,

565 F.2d at 898. In short, an injunction prohibiting the City from discriminating against the Okeechobee

Center in future annexation decisions is not an available remedy to redress Appellants' alleged injuries.

On this record, Appellants have not established a genuine issue of material fact as to the existence

of an appropriate remedy sufficient to satisfy the first Gingles prerequisite. Notwithstanding Appellants'

failure to identify a suitable remedy, "a federal court should not dismiss a meritorious constitutional claim

because the complaint seeks one remedy rather than another plainly appropriate one." Holt Civic Club v. City

of Tuscaloosa, 439 U.S. 60, 65, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978). However, we cannot conceive of an

alternative remedy for Appellants' claims. In short, we hold that Appellants cannot meet the first Gingles

prerequisite.

Although the absence of an available remedy is dispositive of Appellants' claim, we nonetheless

consider the second and third Gingles factors. Appellant's have similarly failed to establish a genuine issue

of material fact as to either of these elements. The second factor requires a showing that the minority group

is politically cohesive, while the third demands proof of a majority white voting bloc sufficient to defeat the

minority's preferred candidates. See Gingles, 478 U.S. at 50-51, 106 S.Ct. 2752. In other words, "[p]roof

of the second and third Gingles factors ... is circumstantial evidence of racial bias operating through the

electoral system to deny minority voters equal access to the political process." Nipper, 39 F.3d at 1524. The

existence of these factors, together with an appropriate remedy, as well as an assessment under the totality

30
of the circumstances, generally will be sufficient to establish that the challenged practice allows racial bias

to dilute the voting strength of the minority population. See id. at 1524-25.

Here, Appellants have offered no evidence of political cohesion or a majority white voting bloc.

Indeed, as discussed earlier, Appellants' only evidence concerns allegations of Appellees' discriminatory

intent. This evidence is wholly insufficient to meet the requirements of the Gingles factors. Given the dearth

of relevant evidence as to Appellants' section 2 vote dilution claim, Appellants have failed to establish a

genuine issue of material fact concerning the second or third prerequisite under Gingles. We conclude,

therefore, that Appellants have also failed to establish a genuine issue of material fact as to vote dilution, and

hold that the district court properly granted summary judgment to Appellees on both of Appellants' section

2 claims.

C.

Title VI of the Civil Rights Act of 1964

There are two distinct causes of action arising under Title VI of the Civil Rights Act of 1964, 42

U.S.C. § 2000d to 2000d-4a. First, the Supreme Court has recognized a private cause of action to enforce

section 601, which prohibits any recipient of federal financial assistance from discriminating on the basis of

race, color, or national origin in any federally funded program.28 See Alexander v. Choate, 469 U.S. 287, 293-

94, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 607 n. 27,

103 S.Ct. 3221, 77 L.Ed.2d 866 (1983); id. at 608 n. 1, 103 S.Ct. 3221 (Powell, J., concurring in judgment);

see also Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 70, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

To state such a claim, a plaintiff must establish discriminatory intent. See Alexander, 469 U.S. at 293, 105

S.Ct. 712. Accordingly, Title VI's protection extends no further than that already afforded under the Equal

28
Section 601 of Title VI provides: "No person in the United States shall, on the ground of race, color,
or national origin, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance." Civil Rights Act of
1964 § 601, 42 U.S.C. § 2000d.

31
Protection Clause of the Fourteenth Amendment. See United States v. Fordice, 505 U.S. 717, 732 n. 7, 112

S.Ct. 2727, 120 L.Ed.2d 575 (1992); Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1405 n. 11,

1406 (11th Cir.1993) (citing Alexander, 469 U.S. at 293, 105 S.Ct. 712; Guardians, 463 U.S. at 584 n. 2,

103 S.Ct. 3221; Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th

Cir.1985)).

Second, we have recognized an implied private right of action to enforce the regulations promulgated

under section 602 of Title VI.29 See Elston, 997 F.2d at 1407; Georgia State Conference, 775 F.2d at 1417.

These regulations prohibit recipients of federal funds from taking any action that results in disparate impact

29
Section 602 of Title VI provides:

Each Federal department and agency which is empowered to extend Federal
financial assistance to any program or activity, by way of grant, loan, or contract other
than a contract of insurance or guaranty, is authorized and directed to effectuate the
provisions of section 2000d of this title with respect to such program or activity by
issuing rules, regulations, or orders of general applicability which shall be consistent with
achievement of the objectives of the statute authorizing the financial assistance in
connection with which the action is taken. No such rule, regulation, or order shall
become effective unless and until approved by the President. Compliance with any
requirement adopted pursuant to this section may be effected (1) by the termination of or
refusal to grant or to continue assistance under such program or activity to any recipient
as to whom there has been an express finding on the record, after opportunity for hearing,
of a failure to comply with such requirement, but such termination or refusal shall be
limited to the particular political entity, or part thereof, or other recipient as to whom
such a finding has been made and, shall be limited in its effect to the particular program,
or part thereof, in which such noncompliance has been so found, or (2) by any other
means authorized by law: Provided, however, That no such action shall be taken until the
department or agency concerned has advised the appropriate person or persons of the
failure to comply with the requirement and has determined that compliance cannot be
secured by voluntary means. In the case of any action terminating, or refusing to grant or
continue, assistance because of failure to comply with a requirement imposed pursuant to
this section, the head of the Federal department or agency shall file with the committees
of the House and Senate having legislative jurisdiction over the program or activity
involved a full written report of the circumstances and the grounds for such action. No
such action shall become effective until thirty days have elapsed after the filing of such
report.

Civil Rights Act of 1964 § 602, 42 U.S.C. § 2000d-1.

32
or discriminatory effects on the basis of race, color, or national origin.30 Under this cause of action, unlike

a claim arising under section 601, a plaintiff may obtain injunctive or declaratory relief by showing, inter alia,

that the challenged action has "a disparate impact on groups protected by the statute, even if those actions are

not intentionally discriminatory." Elston, 997 F.2d at 1406 (citing Alexander, 469 U.S. at 292-94, 105 S.Ct.

712; Guardians, 463 U.S. at 584 n. 2, 103 S.Ct. 3221; Georgia State Conference, 775 F.2d at 1417).

Appellants have raised both of these claims under Title VI. First, they assert that the BGHA

intentionally discriminated against the tenants of the Okeechobee Center on the basis of race in violation of

section 601 of Title VI by refusing to petition for annexation. Second, Appellants allege that the BGHA's

failure to petition resulted in discriminatory effects on the basis of race in violation of the disparate impact

regulations promulgated pursuant to section 602 of Title VI. The district court granted the BGHA summary

judgment sua sponte on both of these claims, specifically concluding that no meaningful relief could be

fashioned to remedy the alleged wrong. Appellants contend that this decision was error. Even if the district

court were correct that it could not order annexation, Appellants argue that the court could have ordered the

30
The Department of Agriculture has promulgated the following regulations relevant to this litigation:

(2) A recipient, in determining the types of services, financial aid, or other
benefits, or facilities which will be provided under any such program, or the class of
individuals to whom, or the situations in which, such services, financial aid, other
benefits, or facilities will be provided under any such program or the class of individuals
to be afforded an opportunity to participate in any such program, may not, directly or
through contractual or other arrangements, utilize criteria or methods of administration
which have the effect of subjecting individuals to discrimination because of their race,
color, or national origin, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program as respects individuals of a particular
race, color, or national origin.

(3) In determining the site or location of facilities, an applicant or recipient may
not make selections with the purpose or effect of excluding individuals from, denying
them the benefits of, or subjecting them to discrimination under any of its activities or
programs to which the regulations in this part apply, on the grounds of race, color, or
national origin; or with the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the Act and the regulations in this part.

7 C.F.R. § 15.3(b)(2), (3).

33
BGHA to equalize the benefits and services between the two centers. Appellants contend, for example, that

the City levies a 50% surcharge for water on the Okeechobee Center tenants. The City does not impose this

charge on the Osceola Center tenants because that center is located within the City's municipal boundaries.

Although we conclude that the district court properly granted summary judgement sua sponte31 to Appellee

BGHA with respect to Appellants' claim arising under section 601, our review of the record compels the

conclusion that Appellants were not afforded a sufficient opportunity to be heard on their disparate impact

claim arising from the regulations promulgated under section 602 of Title VI.

A district court possesses the power to enter summary judgment sua sponte provided the losing party

"was on notice that she had to come forward with all of her evidence." Celotex Corp. v. Catrett, 477 U.S.

317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Under Fed.R.Civ.P. 56(c), motions for summary judgment

must be served on opponents at least ten days prior to the hearing. As we have long recognized, "this notice

provision is not an unimportant technicality, but a vital procedural safeguard" to a party's right to offer the

best defense to any challenge. Massey v. Congress Life Ins. Co., 116 F.3d 1414, 1417 (11th Cir.1997) (citing

National Fire Ins. v. Bartolazo, 27 F.3d 518, 520 (11th Cir.1994); Hanson v. Polk County Land, Inc., 608

F.2d 129, 131 (5th Cir.1979)). But so long as the party against whom judgment will be entered is given

sufficient advance notice and has been afforded an adequate opportunity to demonstrate why summary

judgment should not be granted, then granting summary judgment sua sponte is entirely appropriate. See 10A

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d

ed.1998).

31
Contrary to the district court's suggestion that Appellants' Title VI claims were properly presented on
motion, we believe that the district court entered summary judgment as to these claims sua sponte. See
Burton, 966 F.Supp. at 1187 n. 11. The City only moved for summary judgment on Appellants' Voting
Rights Act claims on the ground that, as a matter of law, it could not be compelled to annex the
Okeechobee Center. The district court concluded that the unavailability of the equitable remedy of
compelled annexation barred all of Appellants' claims. However, because the unavailability of
court-ordered annexation is not dispositive of Appellants' Title VI claims against the BGHA, we cannot
say that any party had, in fact, moved for summary judgment on the Title VI claims.

34
 Appellants could survive summary judgment on their claim arising under section 601 only if they

establish a genuine issue of material fact as to the BGHA's discriminatory intent after June 13, 1991, four

years prior to the initiation of this lawsuit.32 Appellants' § 1983 claims also required proof of discriminatory

intent during that same period. However, because Appellants themselves moved for summary judgment on

their § 1983 claims, it follows that they, in fact, had more than reasonable opportunity to marshal the same

evidence of intent in support of their Title VI claim as well. And since Appellants plainly failed to adduce

sufficient evidence as to intent with respect to any portion of their § 1983 claims, it likewise follows a fortiori

that they could not present sufficient evidence of intent as to this Title VI claim either. Thus, the district court

properly granted summary judgment sua sponte to the BGHA as to Appellants' section 601 claim.

In contrast, Appellants were not afforded sufficient opportunity to defend against summary judgment

with respect to their cause of action to enforce the disparate impact regulations promulgated under section

602 of Title VI. To survive summary judgment, in this context, Appellants must establish, among other

things, a genuine issue of material fact as to whether the BGHA's failure to petition for annexation of the

Okeechobee Center resulted in a disparate impact on the Okeechobee Center tenants on the basis of race. See

Elston, 997 F.2d at 1407. Appellants simply did not have an opportunity to develop or marshal this type of

evidence. As we have observed, Appellants' § 1983 claims turned on evidence of the City's discriminatory

intent in refusing to annex the Okeechobee Center in 1995. Moreover, Appellants' claims under the Voting

Rights Act required evidence of an available remedy—court-ordered annexation or an injunction prohibiting

the City from discriminating on the basis of race. But the evidence required to establish these claims is not

dispositive of any disparate impact the BGHA's actions may have had on the Okeechobee Center tenants.

The record is incomplete and issue has not been joined on this matter. We conclude, therefore, that the

district court erred in granting summary judgment sua sponte to Appellee BGHA on Appellants' action to

32
This claim is also governed by Florida's four-year residual personal injury statute of limitations. See
Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir.1996) (holding that Title VI claims are governed by the same
statute of limitations applicable to § 1983 claims).

35
enforce the disparate impact regulations promulgated pursuant to section 602 of Title VI, and we remand this

claim to the district court to provide the parties with an opportunity to develop the record as to this distinct

claim.33

III.

In sum, we hold that Appellants have failed to establish a genuine issue of material fact in support

of their claims arising under § 1983, section 2 of the Voting Rights Act of 1965, and section 601 of Title VI

of the Civil Rights Act of 1964, and that the district court properly entered summary judgment as to each of

these claims. However, with respect to Appellants' claim arising under disparate impact regulations

promulgated pursuant to section 602 of Title VI, we conclude that the district court improvidently granted

summary judgment to Appellee BGHA. Accordingly, the judgment of the district court is AFFIRMED in part,

REVERSED in part, and REMANDED to the district court for further proceedings consistent with this

opinion.

33
Appellants also move this Court to reassign the case on remand to another judge. We can find no
basis in this record to do so, and, accordingly, deny this application.

36