United States Court of Appeals,
Eleventh Circuit.
No. 95-9149.
DeKALB COUNTY SCHOOL DISTRICT, on its own behalf and on behalf of
the children in the DeKalb County School District; Norma Bergman;
Mike Kelly; Terry Morris; Elizabeth Andrews; Lyman D. Howard;
Phil McGregor, et al., Plaintiffs-Appellees, Cross-Appellants,
v.
Linda SCHRENKO, in her official capacity as Superintendent of
Schools for the State of Georgia; State Board of Education for the
State of Georgia; Willou Smith, William R. Grow, Edward B.
Andrews; the Department of Education for the State of Georgia;
the State of Georgia; Zell Miller, in his official capacity as
Governor of the State of Georgia; John Oxendine, in his official
capacity as Comptroller General of the State of Georgia; Steven N.
McCoy, in his official capacity as Director of the Fiscal Division
of the Department of Administrative Services of the State of
Georgia; Larry D. Thompson; Johnny Isakson; Brenda Fitzgerald;
Palmira Braswell; Phillip A. Wilheit, Sr.; E.G. Meypohm; Barbara
Archibald, Defendants-Appellants, Cross-Appellees.
April 7, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:90-cv-1769-WCO), William C. O'Kelley,
District Judge.
Before ANDERSON, Circuit Judge, KRAVITCH and HENDERSON, Senior
Circuit Judges.
PER CURIAM:
The DeKalb County School District, the members of the DeKalb
County Board of Education, and several individuals brought this
action against the State of Georgia and its Governor, the State
Department of Education, the State Board of Education and its
members, the State School Superintendent, and several other state
officials to recover transportation and program costs incurred by
the plaintiffs because of the desegregation litigation involving
the DeKalb County School District's former dual public school
system. The United States District Court for the Northern District
of Georgia awarded the plaintiffs the desegregative transportation
costs they sought and ordered the State of Georgia to fund those
future transportation expenses. The district court disallowed,
however, the plaintiffs' recovery of the costs of their "majority
to minority" transfer1 and magnet school desegregation programs.
The state defendants appeal the district court's adverse ruling on
the transportation issue, and the DeKalb County plaintiffs filed a
cross-appeal to the district court's rejection of their claim for
their programmatic costs. For the reasons stated in this opinion,
we reverse the district court's judgment granting transportation
costs to the plaintiffs and affirm its ruling in favor of the
defendants denying the plaintiffs' recovery of their costs incurred
in the other desegregation undertakings.
I. BACKGROUND OF THIS APPEAL
A. The Desegregation Litigation.
DeKalb County, Georgia, is a suburban area adjacent to and
east of Atlanta. 2 The DeKalb County Board of Education ("DCBE")
operates the DeKalb County School System ("DCSS"), the schools
within the DeKalb County School District, which, at all times
1
Under the "majority to minority" transfer program, a
student could transfer from a school where his race constituted a
majority of the student population to a school where his race was
in the minority. This program was started by the DCSS on it own
initiative in 1972, but was ordered expanded by the district
court in 1976.
2
A small part of the City of Atlanta extends into DeKalb
County. That area of DeKalb County is part of the City of
Atlanta School System. Similarly, the City of Decatur, located
in the central part of DeKalb County, operates an independent
municipal school system. The areas within the corporate limits
of those two cities are not part of the DeKalb County School
System and are not affected by this action.
relevant to this case, was the largest school district in the State
of Georgia. Consistent with state law and its own policies and
those promulgated by the State Board of Education and the State
Department of Education, the DCSS historically operated a
segregated, dual system of education with separate schools for
black and white students. In 1954, the Supreme Court of the United
States declared segregated schools unconstitutional in Brown v.
Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873
(1954), and the following year ordered all such segregated school
districts to desegregate with "all deliberate speed," Brown v.
Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed.
1083 (1955). Those rulings notwithstanding, the DCSS did not
commence its desegregation efforts until 1966 when it implemented
a "freedom of choice" plan, pursuant to which some black students
attended formerly de jure white schools.3
In 1968, the Supreme Court decided Green v. County School
Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), in which
the Court held that, if freedom of choice plans failed to
adequately end the unlawful segregation of a school district, other
means must be utilized to achieve that purpose. Within two months,
a class of black students filed suit against the DCSS. In June,
1969, the United States District Court for the Northern District of
Georgia entered an order which abolished the freedom of choice plan
and enjoined the DCSS from further discrimination on the basis of
race. The court ordered the DCSS to close all remaining de jure
3
Additionally, in 1968, the DCBE closed Bruce Street High
School, one of two all-black high schools.
black schools and to establish a neighborhood school attendance
policy. The court retained jurisdiction to ensure compliance with
its order. See Pitts v. Cherry, C.A. No. 11946 (N.D.Ga. June 12,
1969).
The parties did not seek any modification of the 1969 order or
request additional relief until 1975 when the plaintiffs complained
that DCSS had violated the earlier plan. In 1976, the district
court ordered the DCSS to expand its "majority to minority" ("M to
M") transfer system of assignment, pursuant to which a student
could transfer from any school in which his or her race was in the
majority to a school in which that race was in the minority, by
providing free transportation to the students, and to reassign
faculty and staff members so that the racial percentages at each
school would approximate those in the system at large. In the late
1970's, the district court considered several plan modifications,
not relevant to this litigation, requested by the DCSS.
In 1983, the plaintiffs sought additional relief in the
district court.4 In an order entered following a hearing on the
plaintiffs' request, the district court, apparently relying on its
1969 order in the case, asserted that the DCSS had been converted
from a dual to a unitary school system in that year. The
plaintiffs appealed to this court, which held that the district
court had improperly declared the DCSS to be unitary without
4
The plaintiffs contended that the limitation on M to M
transfers to predominantly white Lakeside High School and the
proposed expansion of Redan High School would have the effect of
perpetuating segregation in the system. The district court
ordered the DCSS to accept additional black students in the M to
M program at Lakeside but declined to enjoin the expansion of
Redan.
notifying the plaintiffs and conducting a hearing on that issue.
Pitts v. Freeman, 755 F.2d 1423 (11th Cir.1985).
In January 1986, the DCSS filed a motion seeking final
dismissal of the case, and the district court conducted a
three-week bench trial in July, 1987 to determine whether the
system had indeed achieved unitary status. In an order entered
June 30, 1988, the district court denied the DCSS's motion,
concluding that vestiges of the dual system remained in staff
assignments, resource allocation and quality of education. The
court found, however, that the system had become unitary with
regard to student assignments, transportation, physical facilities
and extracurricular activities. Accordingly, the court decided
that no further relief was necessary in those areas. The district
court certified its order for immediate appeal pursuant to 28
U.S.C. § 1292(b), and both sides sought review in this court.5
The appellate panel affirmed the district court's judgment
that the DCSS had not fulfilled its responsibilities with respect
to faculty and staff assignments but reversed its finding that the
DCSS had met its obligations in the assignment of students. The
court also held that a school system could not be declared unitary
until it had maintained racial equality for a period of three years
in all of the categories identified by the Supreme Court in Green.6
5
The plaintiffs did not seek review of the district court's
ruling with respect to the areas of transportation,
extracurricular activities and facilities. Consequently, the
appellate court observed that those issues were not before it.
6
Under Green, the factors to be considered in determining
whether a school system has achieved unitary status are student
assignment, faculty, staff, transportation, extracurricular
activities and facilities. Green, 391 U.S. at 435, 88 S.Ct. at
The court, therefore, determined that the DCSS was not being
operated as a unitary system. Pitts v. Freeman, 887 F.2d 1438,
1450 (11th Cir.1989).
The DCSS petitioned the Supreme Court for review. In 1992,
the Supreme Court reversed this court, holding that a district
court is permitted to withdraw judicial supervision with respect to
discrete categories in which the school district has achieved
compliance with a court-ordered desegregation plan. See Freeman v.
Pitts, 503 U.S. 467, 471, 112 S.Ct. 1430, 1436, 118 L.Ed.2d 108
(1992). According to the Court, "in the course of supervising
desegregation plans, federal courts have the authority to
relinquish supervision and control of school districts in
incremental stages, before full compliance has been achieved in
every area of school operations." Id. at 490, 112 S.Ct. at 1445.7
With respect to the case before it, the Court held "the Court
of Appeals did err in holding that, as a matter of law, the
District Court had no discretion to permit DCSS to regain control
over student assignment, transportation, physical facilities, and
extracurricular activities, while retaining court supervision over
the areas of faculty and administrative assignments and the quality
1692.
7
The Court noted that the racial composition of the student
population of the DCSS had changed dramatically over the years.
When the district court first ordered desegregation of the
system, only 5.6% of the student population was black; by 1986,
the percentage of black students had reached 47%. Freeman v.
Pitts, 503 U.S. at 475, 112 S.Ct. at 1438. Evidence subsequently
introduced in this litigation showed that, by the 1992-93 school
year, black students made up 66% of the district's student
enrollment. (District court order entered September 23, 1994, at
2).
of education, where full compliance had not been demonstrated."
Id. at 492, 112 S.Ct. at 1446. Turning to the question whether
continuing judicial control over student attendance was necessary
to achieve compliance in other areas of the system's operations,
the Court noted that the district court, not having its analysis
before it, did not have the opportunity to make specific findings
and conclusions on this aspect of the case and stated that
"[f]urther proceedings are appropriate for this purpose." Id. at
498, 112 S.Ct. at 1449.
Complying with the Supreme Court's mandate, this court
remanded the case to the district court with the following
instructions:
The issues to be considered by the district court should
include, but not necessarily be limited to, faculty and staff
assignments (which may or may not involve a re-examination of
student assignments), resource allocation, the quality of
education being received by all students and the good faith
commitment of the school district.
Pitts v. Freeman, 979 F.2d 1472, 1473 (11th Cir.1992) (per curiam
).
The district court subsequently entered orders directing the
parties to address whether the DCSS had become unitary with respect
to faculty assignments and resource allocation, whether the system
had demonstrated good faith in complying with the desegregation
order and whether it was providing a quality of education
consistent with the letter and spirit of the decree. The court
held hearings on these issues in January and March, 1996. In an
order entered June 12, 1996, the district court stated that it
would "not revisit those ... factors in which a unitary system has
already been held to exist. Rather, the court will address only
those issues left open by the 1988 Order, and the appellate and
Supreme Court review of that order." Mills v. Freeman, 942 F.Supp.
1449, 1454 (N.D.Ga.1996). Thus, the court considered on the merits
only the issues of faculty assignments, quality of education, and
the DCSS's good faith.8 The court concluded that the DCSS had
achieved unitary status in all respects and granted its motion for
final dismissal of the case. Id. at 1463-64. No appeal has been
taken from that order.
B. History of this Litigation.
This lawsuit was filed in 1990 by the DeKalb County School
District, the members of the DeKalb County Board of Education, and
several parents and students (hereinafter collectively "DeKalb")
against the State of Georgia, the Governor, the State Board of
Education and its members, the State Superintendent of Schools, the
State Department of Education and several other state officials
(collectively the "State") seeking to recover its past
transportation and other expenses related to its desegregation
efforts. In addition, as stated earlier, DeKalb sought injunctive
relief requiring the State to help fund its future desegregation
expenses. It contended that the State's efforts to impede
integration violated the Fourteenth Amendment of the United States
Constitution; the Equal Educational Opportunities Act of 1974, 20
U.S.C. § 1701-1758, which, inter alia, bars a state education
agency from segregating students on the basis of race, color or
8
Given the Supreme Court's opinion in the case and this
court's order remanding the case to the district court, the
district court could have reexamined the area of student
assignments, but the court apparently elected to treat that
question as settled by its 1988 order.
national origin and requires an agency which has practiced such
segregation to take affirmative steps to remove the vestiges of a
dual school system; Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000d et seq., which prohibits discrimination on the basis
of race in any governmental program that is the recipient of
federal funds; and certain provisions of state law.
The case was tried to the court in July 1993. The evidence at
trial disclosed that the State funds a portion of each local school
district's educational expenditures depending on a number of
factors including, since 1985, the wealth of the local district.
The State partially reimburses local districts for their
transportation expenses based on a formula in use since the early
1960's. Every three years, using maps supplied by the local
districts plotting the location of students residing more than 1
and 1/2 miles from their assigned or neighborhood school, state
officials draw "ideal" bus routes which will collect those students
and deliver them most efficiently to that school. They then
calculate the number of route miles and buses needed to transport
those students using these ideal routes and determine the amount
each district will be allocated for transportation expenses. These
calculations are made without regard to the actual schools to which
any of the students are assigned or to the local district's actual
bus routes or transportation expenses. Consequently, the State
does not compensate DeKalb, or any other local district in the
state, for the additional expense incurred in transporting the
students in its magnet school and M to M transfer programs, who
frequently reside long distances from the schools which they
attend.9
The district court entered its findings of fact and
conclusions of law in an order dated September 23, 1994. The court
observed that the State had vigorously resisted the integration of
its public schools and had adopted a number of statutes and
policies over the years in an effort to preserve segregated
schools. The court noted that in the 1960's the State had refused
to fund transportation for students outside their local attendance
zone except for white students seeking to attend white schools
under freedom-of-choice plans. (Order at 6-7).10 When compulsory
busing began to be used to desegregate schools, the State
Department of Education adopted in 1972 Policy ED(1)G, which
provided that student transportation funds were to be calculated
using the school nearest the student's residence having space in
the appropriate grade.11 The court found that this policy was
9
The district court observed that 6,251 students who
participated in the M to M transfer and magnet school programs
were transported by the DCSS in fiscal year 1992. (Order entered
September 23, 1994, at 12-13).
10
In support of this statement, the district court cited the
1968 deposition of John C. Maddox, Chief of Pupil Transportation
Services for the State Board of Education, taken in United States
v. Board of Education of Johnson County, Georgia, C.A. No. 696,
in the Southern District of Georgia. The testimony Maddox
actually gave in his deposition, however, does not appear to
support the district court's assertion. In fact, in response to
a hypothetical question posed by one of the attorneys, Maddox
stated that the state would fund the transportation of a black
student who was assigned by a local school board to a formerly
all-white school as part of a freedom-of-choice desegregation
plan. See Maddox Dep. at 108-09, Plaintiffs' Exh. 302.
11
The policy provided the following:
Pupil transportation funds shall be calculated on the
basis of the school having available space in the
pupil's grade level nearest the pupil's place of
adopted to discourage desegregative student transfers. (Id. at 11-
12).12 In 1990, DeKalb requested that the State fund the additional
transportation expenses required by its magnet and M to M transfer
programs. The State refused, citing Policy ED(1)G and other
policies. The district court found that Policy ED(1)G was repealed
in 1991. It apparently was replaced by a similar provision, a rule
adopted by the State Board of Education in November 1990.13
The district court concluded that the State's system of
calculating reimbursable transportation expenses is not consistent
with O.C.G.A. § 20-2-188(d), which directs in part that students
"who live beyond one and one-half miles from the school to which
they are assigned ... shall be eligible to be counted as
residence.
State Board of Education Policy ED(1)G.
12
The district court reached this conclusion notwithstanding
testimony from Samuel P. McCullough, Jr., Director of Pupil
Transportation for the State Board of Education. In his
deposition, taken in the parallel litigation brought on behalf of
the Savannah/Chatham County school system, McCullough testified
that, in the time period from 1976 to 1986, the State funded bus
transportation for students bused to paired schools in
noncontiguous attendance zones for desegregation purposes. See
McCullough Dep. at 95-96.
13
The new policy stated in relevant part:
(i) Routing shall be as uniform as practical. Routing
shall be planned and operated with minimum bus mileage.
Unnecessary travel by empty buses, excessive bus stops,
and excess spur routes off the trunk lines shall be
eliminated....
(v) Students living within one and one-half miles of
school shall not be included in the survey for state
allotment purposes.
State Board of Education Rule 160-5-3-.10(2)(a)(1). See
Plaintiffs' Exhs. No. 75 & 77.
transported students...." From this, the court held that the
State's transportation funding policy violates this provision of
state law, the Fourteenth Amendment and Title VI of the Civil
Rights Act of 1964. The court found, however, that the State had
not violated the Equal Educational Opportunity Act. ( Id. at 20-
14
28). Using figures supplied by DeKalb and not disputed by the
State, the court held that DeKalb was due "$24,632,351 in
transportation monies that should have been paid pursuant to state
law." ( Id. at 43). The court enjoined the State from ignoring
magnet and M to M transfer students in its future calculation of
transportation funding and ordered the State to base its
computation on each student's actual school assignment. ( Id. at
23).
Turning to DeKalb's request for reimbursement for its magnet
school and M to M programs, the district court found that, under
Georgia law, DeKalb was primarily responsible for the operation of
its public schools and, therefore, for remedying the effects of its
earlier dual school system. The court noted that there was "no
evidence ... to suggest that DeKalb's M to M or magnet programs
were ever hindered or interfered with by the state or state
officials in their initial voluntary form or in their judicially
modified form." (Order at 19). The court observed that a
14
DeKalb submitted evidence that the transportation costs of
its M to M transfer and magnet school programs for the fiscal
years 1978 through 1992 was $34,726,764.00. According to the
plaintiffs, if the State had construed O.C.G.A. § 20-2-188 as did
they and the district court, the State would have paid the DCSS a
total of $25,372,748.00 over that period rather than the
$740,397.00 the State actually paid toward those costs. The
district court arrived at the amount of its award by subtracting
the latter figure from the former.
three-judge panel had in an earlier lawsuit "found that no acts on
the part of the state had been shown to foster a segregative
condition since approximately 1964." (Id. at 32, citing Armour v.
Nix, No. 16708, at 7 & 27 (N.D.Ga. Sept. 24, 1979), aff'd, 446 U.S.
930, 100 S.Ct. 2146, 64 L.Ed.2d 784 (1980)). The court further
observed that the Supreme Court had affirmed its finding that the
DCSS was unitary with respect to transportation and three other of
the six factors identified by the Court in Green. On this record,
the court concluded that it could not "order the state to
participate in a remedy for the removal of a vestige of the dual
school system which the court has already declared removed." (Id.
at 30). 15 Therefore, the court refused to order the State to
compensate the DCSS for its programmatic desegregation expenses.
The court distinguished cases cited by the plaintiffs where state
governments had been ordered to pay for desegregation efforts on
the ground that those states had much greater responsibility for
and authority over local schools. Moreover, the court found that,
in those cases, the state or state agencies had been involved in
the desegregation litigation from the beginning. Here, in
contrast, the DCSS had been under court supervision for over 20
years before filing this action against the State.
Both DeKalb and the State filed motions to alter or amend the
judgment. In response to the State's motion, the district court
clarified its order to specify that its award of damages to DeKalb
15
This conclusion seems to conflict with the court's
decision to require the state to participate in a transportation
remedy despite the earlier holding in the desegregation
litigation that the DCSS was unitary with respect to
transportation.
was based on federal, not state, law, thereby avoiding the bar
posed by the Eleventh Amendment to the Constitution. According to
the court, it had used state law simply to measure the damages due
DeKalb. The court reiterated, however, its finding that the State
had not violated the Equal Educational Opportunities Act because
"the transportation policy is not a vestige of the dual school
system...." (Order dated December 19, 1994, at 8) (emphasis in
original). As a consequence of DeKalb's motion, the court awarded
the plaintiffs an additional $9,259,257 in transportation expenses
for the 1993 and 1994 fiscal years. These appeals followed.
II. STANDARD OF REVIEW
The district court's findings of fact may not be disturbed
unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Robinson
v. City of Fairfield, 750 F.2d 1507, 1510 (11th Cir.1985). Its
conclusions of law are subject to de novo review by this court.
Veale v. Citibank, F.S.B., 85 F.3d 577, 579 (11th Cir.1996).
III. DISCUSSION
A. Defendants' Appeal.
1. Retrospective Monetary Relief.
The State urges that the district court's monetary damages
violate the Eleventh Amendment and settled principles of comity and
federalism. It notes that the court's September 23, 1994, order
repeatedly states that DeKalb is due compensation for the State's
violation of O.C.G.A. § 20-2-188, a holding that is barred by the
Eleventh Amendment. While conceding that the district court
clarified its order by relying on the Fourteenth Amendment and
Title VI rather than the state statute as the basis for its award,
the State argues that it is, in substance, one for the violation of
state law. It also insists that the district court's decision
abridges the political integrity of the State by reallocating a tax
burden between DeKalb County taxpayers and those who bear the tax
burden in the state-at-large.
The State also maintains that Title VI does not support the
award of damages in this case. While admitting that Congress has
abrogated the State's Eleventh Amendment immunity with respect to
actions brought pursuant to Title VI, the defendants assert that
this case is far from a legitimate Title VI action. It alleges
that DeKalb County, as a subordinate creation of the state, lacks
standing to bring this action against the State. Moreover, noting
that this case is simply one for allocating a tax burden, not for
substantive relief under the civil rights laws, the State claims
that the individual plaintiffs here also lack standing to seek
relief against the State.
The Eleventh Amendment to the Constitution provides that
"[t]he Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State." Over a century ago,
the Supreme Court made clear that this language also barred suits
against a state by its own citizens. See Hans v. Louisiana, 134
U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). In short, the Eleventh
Amendment constitutes an "absolute bar" to a state's being sued by
its own citizens, among others. See Monaco v. Mississippi, 292
U.S. 313, 329, 54 S.Ct. 745, 750, 78 L.Ed. 1282 (1934). In the
view of the Supreme Court, the principle of sovereign immunity
embodied in the Eleventh Amendment is a broad, fundamental one,
which is "among the most stable in our constitutional
jurisprudence." Welch v. State Department of Highways, 483 U.S.
468, 486, 107 S.Ct. 2941, 2952, 97 L.Ed.2d 389 (1987). The
doctrine plays a vital role in our federal system by preventing the
sensitive problems which would result from compelling one sovereign
to appear in the courts of the other against its will. Id. at 486-
87, 107 S.Ct. at 2952.
For that reason, absent its consent, a state may not be sued
in federal court unless Congress has clearly and unequivocally
abrogated the state's Eleventh Amendment immunity by exercising its
power with respect to rights protected by the Fourteenth Amendment.
See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,
99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). Of course, Congress
may not nullify a state's immunity with respect to alleged
violations of state law. For that reason, a federal court may not
entertain a cause of action against a state for alleged violations
of state law, even if that state claim is pendent to a federal
claim which the district court could adjudicate. Id. at 117-23,
104 S.Ct. at 917-20. According to the Supreme Court, "[a] federal
court's grant of relief against state officials on the basis of
state law, whether prospective or retroactive, does not vindicate
the supreme authority of federal law. On the contrary, it is
difficult to think of a greater intrusion on state sovereignty than
when a federal court instructs state officials on how to conform
their conduct to state law. Such a result conflicts directly with
the principles of federalism that underlie the Eleventh Amendment."
Id. at 106, 104 S.Ct. at 911.
In this case, DeKalb invoked the jurisdiction of the district
court by asserting that the State's conduct violated federal rights
protected by the Fourteenth Amendment, Title VI and the Equal
Educational Opportunities Act. As far as transportation funding is
concerned, however, the gravamen of its complaint appears to be
that the State has improperly interpreted and failed to adhere to
a state statute governing reimbursement for transportation costs.
As was noted earlier, the district court's order concluded that
DeKalb was due additional "transportation monies that should have
been paid pursuant to state law." It is uncontroverted that the
damages awarded to DeKalb in this case was measured by application
of the disputed Georgia statutory provision, O.C.G.A. § 20-2-
188(d). DeKalb's discussion of this issue in its brief before us
is almost entirely devoted to state law. Looking at the substance
of the district court's judgment, it appears to be one for
violation of state law, a holding barred by the Eleventh Amendment.
See Pennhurst, 465 U.S. at 106, 104 S.Ct. at 911.
Replying to the State's post-judgment motion, the district
court modified its initial decision to rest its judgment more
clearly on its finding that the State had violated the Fourteenth
Amendment and Title VI. Even if we assume that the district
court's disposition is based on federal law, the judgment in favor
of DeKalb must still overcome the Eleventh Amendment barrier. The
Supreme Court has found no general abrogation of Eleventh Amendment
immunity for claims brought pursuant to the Fourteenth Amendment.
See Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358
(1979). On the other hand, the parties agree that Congress has
abolished the states' immunity for causes of action grounded in
Title VI. See 42 U.S.C. § 2000d-7.16 Thus, the State could be
forced to defend a Title VI action in federal court without its
consent.
Title VI provides that "[n]o 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." 42 U.S.C. § 2000d. 17 While Title
VI is not itself an independent source of federal funding, it bars
discrimination in over 80 federal programs which provide financial
assistance to state and local educational activities. See 34
C.F.R. Pt. 100, App. A.
In spite of this bar, it does not appear that any of the
plaintiffs here have standing to sue the State for a violation of
Title VI. First, it is now clearly the law in this circuit that a
political subdivision of a state, such as the DeKalb County School
District and its Board of Education, may not maintain a suit for a
breach of Title VI against the State in federal court. In U.S. v.
Alabama, 791 F.2d 1450, 1455-57 (11th Cir.1986), cert. denied, 479
U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 144 (1987), a panel of this
16
The abrogation of immunity applies to violations that
occur in whole or in part after October 21, 1986, the effective
date of the Rehabilitation Act Amendments of 1986, Pub.L. 99-506.
See 42 U.S.C. § 2000d-7(b).
17
Pub.L. 88-352, Title VI, § 601, July 2, 1964, 78 Stat.
252.
court held that a state university lacked standing to sue the
sovereign that created it under 42 U.S.C. § 1983 for a violation of
the Fourteenth Amendment. Furthermore, the court concluded that a
state university was not a "person" with rights under Title VI
which could be vindicated in a lawsuit against the state. Id.;
see also Knight v. Alabama, 14 F.3d 1534, 1554 (11th Cir.1994).
DeKalb counters that the plaintiffs can circumvent this
obstacle because there are individual citizens who are plaintiffs
in this case. The Supreme Court has recognized a private right of
action for individuals injured by a Title VI violation. See Cannon
v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946,
1957-58, 60 L.Ed.2d 560 (1979). Nonetheless, the individual
plaintiffs here appear to be only nominally interested in the
outcome of this action. The legitimate interests of those
individuals are in an integrated educational system in DeKalb
County which complies with the requirements of the Constitution,
and their rights in those matters have been vindicated by the
district court in the underlying desegregation action.18 No
discrete relief was sought in this action in favor of the
individual plaintiffs, and none has been awarded for their benefit.
Indeed, given that the DCSS is funding all the desegregation
measures required by the Constitution, these individuals have
suffered no injury at all which could be remedied by the invocation
18
The plaintiffs in the original desegregation litigation
could, presumably, have joined the State and its educational
agencies as defendants in that suit, but they did not do so.
See, e.g., Stanley v. Darlington County School District, 84 F.3d
707, 717 (4th Cir.1996).
of Title VI.19
It must be emphasized that we are not being called upon to
adjudicate the rights of minority students and parents to a
quality, unified educational system in DeKalb County. As just
noted, those rights have been vindicated in the desegregation
lawsuit, and the district court has now declared the DCSS to be a
unitary school system, a determination which is not on appeal. The
plaintiffs in this action sought only a monetary award to
compensate DeKalb for some of its past desegregative transportation
and other program costs and an injunction to require the State to
help fund those initiatives in the future. In other words, this
case is simply about who will pay for the measures undertaken by
DeKalb to remedy the effects of the past segregation of its public
schools, the taxpayers of DeKalb County alone or the taxpayers of
the state as a whole.
If DeKalb had sought this relief in the underlying
desegregation suit, it would be more clearly revealed for what it
is: a third-party claim for contribution by a political
19
It might be argued that the individual plaintiffs have
standing to challenge the State's educational funding practices,
or failure to fund certain desegregation programs, because, as
DeKalb County taxpayers, their local property taxes may be
increased by the State's actions. Even so, in order to have
standing to sue in federal court, a plaintiff must allege an
injury in fact distinct from that suffered by all or a large
class of citizens. See, e.g., Warth v. Seldin, 422 U.S. 490,
499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Therefore, with
respect to federal taxpayers, the Supreme Court has generally
found they lack standing to contest government spending unless
the challenge is to government expenditures which allegedly
violate the Establishment Clause of the First Amendment. See
Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947
(1968). The same result has been reached when local taxpayers
seek to invoke the authority of the federal courts. See Warth,
422 U.S. at 508-10, 95 S.Ct. at 2210-11.
subdivision of a state against the sovereign that created it. Yet,
a federal court's grant of relief in such an instance would be a
serious violation of the most elementary notions of federalism and
comity. A state's power to create, abolish and determine the level
of public funding of political subdivisions has long been
recognized as an element of state sovereignty. See, e.g., City of
Trenton v. State of New Jersey, 262 U.S. 182, 186, 43 S.Ct. 534,
536, 67 L.Ed. 937 (1923). As the Fourth Circuit Court of Appeals
observed in a similar case involving the funding of local school
desegregation measures, "[i]t would be an unfathomable intrusion
into a state's affairs—and a violation of the most basic notions of
federalism—for a federal court to determine the allocation of a
state's financial resources. The legislative debate over such
allocation is uniquely an exercise of state sovereignty." Stanley
v. Darlington County School District, 84 F.3d 707, 716 (4th
Cir.1996); see also Harris v. Angelina County, Texas, 31 F.3d 331,
340 (5th Cir.1994) ("we can think of few greater intrusions on
state sovereignty than requiring a state to respond, in federal
court, to a claim for contribution brought by one of its own
counties"), Kelley v. Metropolitan County Board of Education of
Nashville & Davidson County, 836 F.2d 986, 998 (6th Cir.1987),
cert. denied, 487 U.S. 1206, 108 S.Ct. 2848, 101 L.Ed.2d 885 (1988)
(federal court may not "be called upon to adjudicate an internal
dispute [over local school funding] between a local governmental
entity and the very state that created it"). As a consequence of
these jurisprudential barriers, the district court's monetary award
for transportation costs against the State cannot stand.
2. Prospective Injunctive Relief.
The State also stresses that its arguments concerning Eleventh
Amendment immunity and standing apply with equal force to the
district court's grant of injunctive relief. It calls attention to
the fact that it has been enjoined to adhere to a state funding
statute as that statute has been interpreted by a federal court.
The result will not be any enhancement of the desegregation
programs in DeKalb County, which are already being funded by DeKalb
as the Constitution requires, but, rather, a reallocation of
resources from poorer, rural school districts to a wealthier
suburban district. According to the State, this is beyond the
power of the federal courts. As with the damages award, the State
attacks DeKalb's standing to advance a Fourteenth Amendment or
Title VI claim against it.
Moreover, the State challenges the district court's
interpretation of the transportation funding statute at issue here.
It takes the position that, since the early 1960's, when nearly
every Georgia student attended his neighborhood school, or school
for the attendance zone in which he resided, the statute has been
construed consistently to provide transportation funding only for
students residing more than one and one-half miles from their
neighborhood school based on the distance between their homes and
that school. Finally, the State argues that DeKalb has failed to
identify any nonmonetary injury which it has suffered as a result
of the State's interpretation of the statute.
In support of the district court's grant of injunctive relief,
DeKalb asserts that such a prospective remedy fits within the
exception to Eleventh Amendment immunity recognized in Ex parte
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). DeKalb
points to a number of cases where states have been ordered to help
pay for the costs of desegregating local schools and have been
enjoined to help fashion remedies for past segregation.
In Young, the Supreme Court carved out a
"prospective-compliance" exception to the jurisdictional bar of the
Eleventh Amendment, holding that a federal court could enjoin state
officials "who threaten and are about to commence proceedings ...
to enforce ... an unconstitutional act...." 209 U.S. at 156, 28
S.Ct. at 452. The exception permits federal courts to enjoin state
officials to conform their conduct to the requirements of federal
law, even if there is an ancillary impact on the state treasury.
See, e.g., Milliken v. Bradley, 433 U.S. 267, 289, 97 S.Ct. 2749,
2762, 53 L.Ed.2d 745 (1977). When, however, "the action is in
essence one for the recovery of money from the state, the state is
the real, substantial party in interest and is entitled to invoke
its [Eleventh Amendment] immunity from suit even though individual
officials are nominal defendants." Ford Motor Co. v. Department of
Treasury of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed.
389 (1945); Pennhurst, 465 U.S. at 101, 104 S.Ct. at 908. A suit
that is essentially one against the state is "barred regardless of
whether it seeks damages or injunctive relief." Pennhurst, 465
U.S. at 101-02, 104 S.Ct. at 909; see Cory v. White, 457 U.S. 85,
102 S.Ct. 2325, 72 L.Ed.2d 694 (1982).
While a number of state officials are named as defendants in
this case in addition to the State of Georgia and its agencies, it
is obvious that this is, in reality, a suit against the State
itself. The only action the defendants are required to take to
comply with the district court's injunction is to pay from the
state treasury the additional funds specified by the district
court. If the defendant state officials make those payments, they
will not be in contempt of the court's order; if they fail to do
so, such failure will constitute contempt. Therefore, as the Sixth
Circuit found in Kelley, the injunctive relief is ancillary only to
itself and does not fall within the Young exception. Thus, this
action is, in substance, one against the state, a proceeding barred
by the Eleventh Amendment.
It is true, as DeKalb points out, that some states have been
ordered by federal courts to help fund local desegregation efforts.
They cite cases involving the desegregation of the Little Rock,
Arkansas, Detroit, Michigan and St. Louis, Missouri school
districts, in which state governments were ordered to participate
in desegregation remedies. The district court found, however, that
the state governments in each of those cases had far greater
responsibility for primary and secondary education and much more
authority over the local school districts. In addition, the states
or state agencies in those cases had participated in the
desegregation litigation since its inception. See, e.g., Little
Rock School District v. Pulaski County Special School District No.
1, 778 F.2d 404, 411-17 (8th Cir.1985) (Little Rock school case);
Bradley v. Milliken, 540 F.2d 229, 232-34 (6th Cir.1976) (Detroit
school case); United States v. State of Missouri, 515 F.2d 1365
(8th Cir.1975) (St. Louis school case).
On the other hand, federal courts have refused to require
state participation in desegregation remedies when the state's
participation was only sought years after the original
desegregation litigation was initiated and when the primary
responsibility for public education rested with the local school
boards. The case factually closest to the present case is Kelley
v. Metropolitan County Board of Education of Nashville & Davidson
County, 836 F.2d 986. In Kelley, the Metropolitan County Board of
Education of Nashville and Davidson County sued the State of
Tennessee some 26 years after the filing of a desegregation suit
involving Nashville and Davidson County seeking reimbursement for
its past desegregation costs and injunctive relief to compel the
State to fund future desegregation efforts. The district court
concluded that a retroactive award for past costs would violate the
Eleventh Amendment but did enjoin the State to pay for 60% of the
local district's future desegregation costs.
On appeal, the Sixth Circuit Court of Appeals held that the
grant of prospective relief violated the Eleventh Amendment.
Kelley, 836 F.2d at 988. The court noted that the case before it
was not about the merits of desegregation or various methods for
achieving that goal, but simply a contest about money, about who
would pay the bill for desegregation measures already in effect.
Id. at 990. According to the court, the fact that the state had
been a constitutional wrongdoer prior to 1956 did not mean it
remained a constitutional wrongdoer more than 30 years later. Id.
at 994. Furthermore, while the state might have an obligation to
eliminate the lingering effects of de jure segregation, federal law
did not require that the obligation be discharged by payments
directly from the state treasury rather than through funds raised
by the local school authorities. Id.
A similar result was reached in United States v. Texas
Education Agency, 790 F.2d 1262 (5th Cir.1986), cert. denied, 479
U.S. 1030, 107 S.Ct. 874, 93 L.Ed.2d 828 (1987). In that case, the
Lubbock Independent School District filed a motion to divide the
costs of its desegregation measures with the state some 14 years
after the original lawsuit was filed. The district court denied
the motion, and the Fifth Circuit Court of Appeals affirmed. In
the view of that court, the case constituted "the LISD's belated
effort to recover costs which smacks of an attempted end-run around
the Texas legislature's allocation of state funds. Yet the State
has not been an active party to his suit since 1970, and it has
never been adjudicated responsible for that segregation in Lubbock
which has proven costly to eliminate." Id. at 1265.
Finally, the Fourth Circuit Court of Appeals recently rejected
efforts to impose on the State of South Carolina some of the costs
of desegregating the Darlington County schools. Stanley v.
Darlington County School District, 84 F.3d 707. There, the
district court had permitted the local district to join the State
as a defendant approximately 30 years after the original
desegregation lawsuit was filed and had ordered the State to pay
15% of the costs of the relief granted in the case. The appellate
court reversed, concluding that the district court had wrongfully
joined the State in the litigation where neither the original
plaintiffs nor the United States as intervenor had sought to pursue
a claim against the State. Id. at 715-16. The court held that a
federal court lacked authority to entertain a contribution claim by
a local school district against the State. Id. at 716-17.
In this case, DeKalb filed suit against the State over 20
years after the desegregation case against it began in an effort to
shift the burden for some of the costs of its desegregation
measures to the State and, by extension, the state's taxpayers at
large. That effort is barred by the Eleventh Amendment and
elementary principles of federalism.
While the parties have not addressed it, there appears to be
an additional problem with a grant of prospective relief in this
case. While federal courts have broad equitable powers to remedy
the wrongs caused by de jure segregation, "it is important to
remember that judicial powers may be exercised only on the basis of
a constitutional violation." Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554,
566 (1971). Further, "[a]s with any equity case, the nature of the
violation determines the scope of the remedy." Id. Therefore,
once a local school district has achieved unitary status, the role
of the district court comes to an end. See generally Pasadena City
Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49
L.Ed.2d 599 (1976). Thus, the Fifth Circuit Court of Appeals has
refused to approve additional equitable relief once a school
district achieved unitary status. According to that court,
accommodation of federal superintendence and federalism will
not tolerate the idea that although the wrong is righted, the
magnitude of the past wrong nonetheless justifies perpetuation
of a federal order limiting the ambit of a school district's
self-governance. It is state government that we are asked to
enjoin. Surely, faithfulness to federalism counsels that
having righted the wrong, the limits we will impose on the
state can be drawn no more tightly than the limits of the
Constitution.
United States v. Overton, 834 F.2d 1171, 1177 (5th Cir.1987).
In this case, the district court has enjoined the State to
alter its interpretation of a state statute in order to provide
DeKalb with additional state funding for its desegregative
transportation programs. Yet, the district court in the
desegregation case concluded that DeKalb had achieved unitary
status with respect to transportation in 1988, a holding not
appealed by the plaintiffs, and that court recently found that the
DCSS was unitary in all aspects of its operations. Like the Fifth
Circuit Court of Appeals, we do not believe that the prospective
injunctive relief granted in this case can be reconciled with a
finding that the DCSS has achieved unitary status.20 In our view,
a federal court lacks authority to compel compliance with such an
indeterminate prospective order once the Constitutional violation
has been remedied. For these reasons, the district court's grant
of injunctive relief to DeKalb requiring the State to fund DeKalb's
future transportation costs must be reversed.
B. Plaintiffs' Appeal.
DeKalb appeals the district court's rejection of its request
for reimbursement for some of its non-transportation desegregation
costs. In its opinion, the State's history of enforcing
20
For the same reason, we doubt that the district court had
authority to award DeKalb its past desegregative transportation
expenses once DeKalb had been found to be unitary with respect to
its transportation operations. Since we have decided, however,
that the district court's award of such expenses must be reversed
on other grounds, we need not reach that issue.
segregation renders it liable for at least some of DeKalb's costs
in desegregating its schools.
As stated above, the district court found that DeKalb was
primarily responsible for operating its public schools and,
further, that the State had not impeded DeKalb's M to M or magnet
school programs. Therefore, as a factual matter, the State could
not be held liable for DeKalb's costs in developing and
implementing those desegregation programs. Furthermore, for the
reasons discussed earlier respecting DeKalb's transportation
expenses, the State may not be required legally to contribute to
those costs. DeKalb has not cited any case where there was a
similar division of responsibility for public education, and where
liability for desegregation costs was sought to be imposed on state
government years after the initiation of such efforts, which held
the state financially responsible for local school desegregation
efforts. The Courts of Appeals for the Fourth, Fifth, and Sixth
Circuits have rejected such claims for state contribution in
similar circumstances, and we feel compelled to follow their
course. Stanley, 84 F.3d at 716-17; United States v. Texas
Education Agency, 790 F.2d at 1264-65; Kelley, 836 F.2d at 988-
1001. The district court's rejection of DeKalb's claim for
programmatic costs is therefore affirmed.
The judgment of the district court is AFFIRMED in part and
REVERSED in part.