Burton v. City of Belle Glade

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
06/25/99
THOMAS K. KAHN
No. 97-5091 CLERK
________________________
D. C. Docket No. 95-8356-CIV-RYSKAMP

LILLIE BURTON,
VALLIE DANIELLES, et al.,
Plaintiffs-Appellants,

versus

CITY OF BELLE GLADE,
BELLE GLADE CITY COMMISSION, et al.,
Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(June 25, 1999)

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

2
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

3
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.,

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,

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
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.

4
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.

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

5
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

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, No. 80-8156-CIV-JAG (S.D. Fla. 1980), 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.

6
recommendations concerning the wisdom and efficacy of annexing the Okeechobee

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

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

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.
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.

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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.

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.

8
 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

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.

9
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 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.

10
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.

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

11
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 (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;

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

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.

12
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

constitutional violations committed under color of state law.10 To prevail, plaintiffs

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 (1997) (Breyer, J., concurring in part and
concurring in judgment) (citing Rogers v. Lodge, 458 U.S. 613, 617 (1982) (Fourteenth
Amendment covers vote dilution claims); City of Mobile v. Bolden, 446 U.S. 55, 66 (1980)
(plurality opinion) (same), and comparing Mobile, 446 U.S. at 62-63 (intentional vote
dilution may be illegal under Fifteenth Amendment), and Gomillion v. Lightfoot, 364 U.S.
339, 346 (1960) (Fifteenth Amendment covers municipal boundaries drawn to exclude
blacks), with Mobile, 446 U.S. at 84 n.3 (Stevens, J., concurring in judgment) (Mobile
plurality said that Fifteenth Amendment does not reach vote dilution); Voinovich v. Quilter,
507 U.S. 146, 159 (1993) (“This Court has not decided whether the Fifteenth Amendment
applies to vote-dilution claims . . . .”); Shaw v. Reno, 509 U.S. 630, 645 (1993) (endorsing
the Gomillion concurrence’s Fourteenth Amendment approach); Beer v. United States, 425
U.S. 130, 142 n.14 (1976)). Both Amendments, however, require proof of discriminatory
purpose. See Bossier Parish, 520 U.S. at 481 (“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

13
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 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

(1989); Wilson v. Garcia, 471 U.S. 261, 276 (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.

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)).

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 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 (1997); Village of Arlington Heights v.

Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426

U.S. 229, 241-42 (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. 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 (1993) (citing Personnel

Administrator v. Feeney, 442 U.S. 256, 272 (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 (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 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

15
429 U.S. at 265-69. 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); 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 (1979).11

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

16
 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,

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 (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

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.

17
 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 (citing

Feeney, 442 U.S. at 272). 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. Moreover,

Appellants argue that defendants should carry an even greater burden in this case, just

as they do in the context of higher education. See United States v. Fordice, 505 U.S.

717, 727-32 (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

18
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

19
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. Non-discriminatory 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 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

20
 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 (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

legislative purpose.’” Shaw v. Hunt, 517 U.S. 899, 905 (1996) [hereinafter Shaw II]

(quoting Miller v. Johnson, 515 U.S. 900, 916 (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

21
 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. 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 (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. 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 (citing Miller, 515 U.S. at 920).

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

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 (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. 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-Belle-
Glade-citizen Appellants would have to prove that they personally were not annexed into the
City on the basis of their race.

22
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 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

23
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

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

24
City’s 1995 decision to refuse annexation of the Okeechobee Center. See Arlington

Heights, 429 U.S. at 265-66. 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. 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

25
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 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

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.

26
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 Supp. 1998). In 1977, the Florida Attorney General

considered whether Florida law permitted a municipality to annex property only

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 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.

27
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

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).

28
reliance on the 1974 annexation statute as a justification for the denial of Peterson’s

request to annex the Okeechobee Center does 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

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.

29
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); see also Freeman v. Pitts, 503 U.S. 467, 495-96 (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

30
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. 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

31
of 1965. Section 2, 42 U.S.C. § 1973, “was 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 (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 (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

18
This amendment superceded the Supreme Court’s decision in City of Mobile v.
Bolden, 446 U.S. 55, 61-62 (1980) (plurality opinion), which had held that both the Fifteenth
Amendment and section 2 of the Voting Rights Act require proof of intentional
discrimination.

32
 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.

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

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).
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 (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;

33
 Appellants have alleged claims of both vote denial and vote dilution.21 The

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 (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 (quoting S. Rep. No. 97-417
at 29, reprinted in 1982 U.S.C.C.A.N. at 206-07).

34
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

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 (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 (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 (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.”).

35
redress either of Appellants’ alleged injuries -- vote denial or vote dilution.23

1.

Vote Denial

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

(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

23
We address the availability of a remedy as part of Appellants’ prima facie case of
vote dilution.

36
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

(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 (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 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.

37
 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 (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. Upon successfully establishing each of

the Gingles prerequisites, plaintiffs also must show that, under the totality of the

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 (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; single-member districts,
see Growe v. Emison, 507 U.S. 25, 40 (1993); and majority-minority districts, see
Voinovich, 507 U.S. at 153-54. 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, 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.

38
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 (1994).

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, 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 (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 (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. As we explained in Nipper:

39
 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 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.

25
Notably, Appellants have not sought the wholly impracticable remedy of deannexing
the Osceola Center, after close to forty years of Belle Glade citizenship.

40
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, court-ordered 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

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
(1990); see also Spallone v. United States, 493 U.S. 265, 276 (1990) (noting that court’s
“broad equitable powers” to remedy past discrimination are not unlimited and should “take

41
 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

into account the interests of state and local authorities in managing their own affairs”
(internal quotation marks and citations omitted)).

42
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 (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.” 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

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.

43
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 (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. 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

44
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 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

45
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 (1985); Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 607 n.27

(1983); id. at 608 n.1 (Powell, J., concurring in judgment); see also Franklin v.

Gwinnett County Pub. Schs., 503 U.S. 60, 70 (1992). To state such a claim, a plaintiff

must establish discriminatory intent. See Alexander, 469 U.S. at 293. Accordingly,

Title VI’s protection extends no further than that already afforded under the Equal

Protection Clause of the Fourteenth Amendment. See United States v. Fordice, 505

U.S. 717, 732 n.7 (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; Guardians, 463

U.S. at 584 n.2; 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 1407;

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.
29
Section 602 of Title VI provides:

Each Federal department and agency which is
empowered to extend Federal financial assistance to any

46
Georgia State Conference, 775 F.2d at 1417. These regulations prohibit recipients of

federal funds from taking any action that results in disparate impact or discriminatory

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.

47
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;

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

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).

48
 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 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

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

49
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 (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).

Appellants could survive summary judgment on their claim arising under

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.

50
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

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).

51
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 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

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.

52
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.

53