freeman v. pitts, 112 s. ct. 1430 (1992): the travails of

Freeman v. Pitts, 112 S. Ct. 1430 (1992):

The travails of a "garden variety desegregation case"

Margo Schlanger For: Professor Drew Days Constitutional Litigation 5/17/93

Table of Contents

I. futroduction ........................................................................................... 1

II. History ...................................................................................................... 3

m. The Complaint ...................................................................................................... 4

IV. The Revival and 1975 Litigation ...................................................................... 6

v. The 1978 Litigation ...................................................................................................................... 14

VI. The 1983 Litigation: Lakeside and Redan .......................................... 17

VII. The Motion for Final Dismissal ............................................................................. 21 A. Before Judge O'Kelley ....................................................................... 21

B. Before the Eleventh Circuit ............................................................... 30

VIII. The Supreme Court Litigation ............................................................. 33 A. Beginning Skirmishes ........................................................................ 33

B. Back in the District Court .................................................................. 35

C. Certiorari ........................................................................................... 39

D. Briefing the Case ............................................................................... 46

E. The Composition of the Court ........................................................... 51

F. The Oral Arguments .......................................................................... 52

G. The Supreme Court Opinion .............................................................. 60

IX. The Aftermath ...................................................................................... 64

X. The Result ............................................................................................. 65

I, Introduction,

Freeman v. Pitts1 is a suit to desegregate the public schools of DeKalb

(pronounced de-cab) County, Georgia, due east of the city of Atlanta. The case was

originally filed in 1968; it reached the Supreme Court in 1992, after the School District

asked the supervising trial judge to finally dismiss the case, relinquishing jurisdiction over

school operations. The trial judge, William C. O'Kelley, did not altogether agree -- but he

handed down a decision very favorable to the School District, giving up control over most

parts of the schools' administration, and asking only that a little more be done, before total

dismissal. The plaintiffs (nominally all the black schoolchildren in DeKalb and their

parents, but actually a small group of committed community members and their lawyer)

appealed, and won. The School District appealed that.decision to the Supreme Court, and

won. The Supreme Court held, 5-3, that a district court supervising a desegregation

order could withdraw supervision incrementally -- that is, it could cease supervising the

school district's assignment of students to different school (no longer scrutinizing

neighborhood lines to ensure that they did not result in racially identifiable schools), while

continuing to oversee, for example, faculty assignment

School desegregation law is by nature repetitive. These cases were brought as part

of a concerted civil rights campaign to desegregate the public schools in the 17 states that

had de jure segregation. They have different features, but a family similarity. They have

proceeded individually; but the same issues come up in many of them. In the papers

opposing Supreme Court review of their victory in the appellate court, the plaintiffs

described Freeman as a "garden variety desegregation case. "2 The phrase was offered in

an attempt to make the case sound less significant; but it is to some extent true. As in

1112 S. Ct. 1430 (1992; Supreme Court docket no. 89-1290. (The case has since been recaptioned Mills v. Freeman). I will omit the case name in this paper's references to the opinion and to

the papers filed. 2Respondents Brief Opposing Cert. at 1 (March 15, 1990).

many desegregation cases, the problem in Freeman arose when residential segregation led

to the neighborhood schools becoming racially identifiable. The School District argued

that it had not caused residential segregation, and that it was not constitutionally bound to

counter its effects.

Burke Marshall, head of the Justice Department's Civil Rights Division under

President Kennedy has witnessed all the stages of school desegregation around the

country. He calls Freeman an "end game" case; along with a case decided the year before,

Board of Education of Oklahoma City v. Dowell,3 it marks the Supreme Court's

acquiescence in the beginning of the end of 25 years of federal court supervision of

Southern school districts.

Freeman could have marked not just the beginning of the end of the era, but the

end of the era; Justice Scalia's concurrence4 shows precisely how far he was willing to go

in dismantling the 38 years of desegregation law since the Court decided Brown v. Board

of Education. 5 But Justice Scalia was not able to persuade even one of his colleagues to

sign on to his opinion, and Justice Souter opposed it with a concurrence of his own6

interpreting the more moderate majority opinion, written by Justice Kennedy, in a

decidedly moderate way. It seems to me that Freeman could have been a disaster for

those looking to continue to press school boards in the south to create and retain

integrated schools; instead, it merely told judges what the contours of their inquiry should

be, leaving plenty of room for those judges to retain jurisdiction, if they feel it necessary.

There was, however, room for disaster; and it was room, I think, created by the

(avoidable) failings of the type of litigation Freeman was; institutionally conceived,

lawyer initiated, and not (at first) focused on clients but on policy. When these are the

characteristics of a lawsuit, two urgent questions arise: What do you do when the

3111 S. Ct. 630 (1991) 4112 S. Ct. at 1450.5347 U.S. 483 (1954).6112 S. Ct. at 1454.

institutional eye blinks -- since it is not involved day-to-day in the problems the litigation

addresses? And what do you do when the institutional support vanishes? The answers

supplied by Freeman v. Pitts are not model ones. The case survived through neglect by its

lawyer-creators, and serious mistakes by the attorneys who took it on later, when no one

else would. It faced community challenges that perhaps could have been avoided had

there been a more concerted effort from the start to meet the needs of the larger African

American community. In the final analysis, these problems doomed the plaintiffs to defeat

in a Supreme Court that had to be persuaded to support the continuation of court

supervision over a school system.

II, History

School desegregation law was developed by a group of strategic litigators at the

NAACP Legal Defense and Educational Fund (known as LDF or the Inc. Fund), who

conducted a strategic effort over the 1940s and 1950s to build a Supreme Court

jurisprudence that would support the Court when it was asked to end the constitutional

legitimacy of de jure segregation of public elementary and secondary schools. Brown v.

Board of Ea' was the culmination of that struggle. But whatever inspirational and legal

effects Brown had, it did not do much to desegregate any schools until Lyndon Johnson

rammed the Civil Rights Act of 1964 through Congress, in the aftermath of President

Kennedy's death. Title VI of the Act authorized the Department of Health, Education,

and Welfare (HEW) to cut off federal funds to any school district that remained

segregated. All across the South, school districts altered their attendance rules to

eliminate de jure segregation, but maintain de facto segregation. DeKalb County was

typical. Before 1964, five of the districts' elementary schools and two high schools8 were

officially designated the Negro schools; their students were the black students of the

7347 U.S. 483 (1954).8There were no middle schools or junior high schools in DeKalb until recently.

district, who comprised less than 6% of the districts' total enrollment. As Brown v. Board

of Ed. 9 had not done, the threat of federal funding cuts persuaded DeKalb to eliminate the

legal enforcement of de jure school segregation. During the 1966-67 school year,

DeKalb the dual school system was officially replaced with a system of geographic zones,

combined with a "freedom of choice" transfer plan. The zones, however, were drawn so

as to maintain the school populations basically as they had been before. The black school

stayed exclusively black, with white students in their neighborhoods using their right to

transfer out to escape the geographic zones. Some few black children, too, transferred

out and into white schools. Still, it would have been fairly difficult for an observer to

detect any change between 1965 and 1968.

The Inc. Fund was aware of this problem, and was actively litigating it in other

school systems. In Green v. County School Board, 10 the Supreme Court handed down

another landmark school desegregation decision. "The time for mere 'deliberate speed'

has run out," the Court said; segregated school districts should come forward with a plan

that "promises realistically to work, and promises realistically to work now." Specifically,

the Court held that if a freedom of choice plan "fails to undo segregation, other means

much be used to achieve this end." And it defined the end more sweepingly than previous

cases had; school districts needed to desegregate all aspects of school administration,

including which schools students attended ("student assignment"), faculty, staff,

transportation, extracurricular activities, and physical facilities. These six areas of

operations have since become known as the Green factors.

Ill, The Complaint

Immediately in the wake of that decision, the Pitts plaintiffs -14 schoolchildren

and their parents (five of the seven families black, and the other two white) - filed their

9347 U.S. 483 (1954)1o391 U.S. 430 (1968).

case. Pitts v. Cherry,11 as it was titled then, was one of a generation of southern school

desegregation cases that followed the Green decision. The complaint was conceived and

filed (on July 5, 1968) by four civil rights attorneys-Howard Moore and Peter

Rindskopf of Moore, Alexander & Rindskopf, and Jack Greenberg and Charles Stephen

Ralston ofNAACP-LDF.

The Inc. Fund has never had enough staff to carry on its national plans of strategic

litigation. Instead, LDF has operated through a network of "cooperating attorneys" -

local lawyers who undertake to bring cases furthering the organization's interests and

goals. Back-up support is provided by the central office in New York. In this case,

Howard Moore, a celebrated Atlanta civil rights lawyer, was the cooperating attorney.

Moore (and because of him, Moore's law firm) were doing the bulk of civil rights legal

work in Atlanta at the time, according to NAACP lawyer Willie Abrams. It seems to have

been Moore who recruited the Pitts plaintiffs and who brought the case.

Following a familiar pattern, the school district responded to the pressure of a

lawsuit by entering into negotiations with HEW. The school district is one of the largest

in the United States; in 1968 it served close to 80,000 students. However, because the

number of black students was still very small in 1968 -- only 3700. Perhaps as a result the

plan developed was simple. The formerly de jure black schools were to be closed down,

and their students transferred to nearby white schools. The freedom of choice plan was

eliminated. The school system argued in its answer to the complaint that it had, with the

approval of HEW, "committed itself to a complete unitary non-racial, non-discriminatory

school system by the beginning of the 1969-70 school year."12 Judge Newell Edenfield,

the district judge for the Northern District of Georgia, Atlanta division, was informed of

this plan, and approved it in an order derived in large part from an opinion of the old Fifth

110ne of the plaintiffs, Willie Eugene Pitts, was actually chosen as lead plaintiff because of thecoincidence of his name; the superintendent of schools in DeKalb was named Jim Cherry, and the lawyers thought it would be funny if the case were ever appealed and its name became Cherry v. Pitts.

12Freeman v. Pitts, Supreme Court Joint Appendix [hereinafter App.] at 59 (Answer).

Circuit 13 From the very beginning, the Freeman case bore the signs of a mass-produced

litigation.

The order did not get rid of racially identifiable schools in DeKalb. As soon as

1969, the very year the order went into effect, two schools became majority black. The

cause of this shift was to become crucial to the eventual Supreme Court litigation, but the

fact of the shift was uncontroversial. In 1965 Terry Mill Elementary School was all

white; in 1967, it was 23% black; by 1969, it was 76% black. Stoneview Elementary

School was opened in 1969 with a student population that was 51 % black. Roger Mills,

who was to become one of the plaintiffs in the case, explains that the School District

allowed students who lived nearby, but over the Atlanta border, to transfer in freely. The

Atlanta students were black, and, says Mills, their presence encouraged white students to

transfer out of Terry Mill, which the School District also allowed freely.

IV, The Revival and 1975 Litia:ation

Despite this nearly instantaneous resegregation of black students, after Judge

Edenfield's order was entered in June 1969, there was no activity in the case. Roger Mills

says that the 1969 order went as far as the law allowed, at that time. Only several years

later did Supreme Court precedent provide the tools that might have been used to get rid

of racially identifiable schools in DeKalb. Other factors were perhaps even more

important contributors to the dormancy of the litigation. Howard Moore left Georgia to

assist Angela Davis in her defense. His law partner Peter Rindskopf took the case over;

but Rindskopf was killed in a car accident, and the case was passed on to his wife,

Elizabeth Rindskopf. Before long, however, she left the state (moving to New Haven

Legal Assistance). John Myer, a young lawyer at Moore, Alexander, was left in charge of

monitoring the case.

13See Petition for Certiorari (Feb. 12, 1990) at 3 n2 (citing United States v. Jefferson County Bd. of Educ., 380 F.2d 385, cert. denied 389 U.S. 840 (1967)).

In 197 4, the man who would mold the case from then on moved to DeKalb.

Roger Mills had just graduated from George Washington Law School, and hadn't yet

passed the bar exam. He and his wife were from Mississippi; they were the first interracial

couple legally married in that state. (Roger Mills is white; Berta Mills is black). The Mills

moved into an apartment on the outskirts of Atlanta; they didn't even know whether their

daughter should be attending an Atlanta school or one in DeKalb. In fact, she went to an

Atlanta school for several months before they were informed that they lived just over the

DeKalb border. By 1974 there were ten DeKalb schools identifiable as black schools; the

Mills' neighborhood school had almost all black students. Mills had worked during law

school for the Inc. Fund, spending summers in Mississippi, and he was working in 1974

for a civil rights organization, the Southern Regional Council. He was, he says, shocked

at the continuing segregation of the DeKalb County schools. He knew about the 1969

order, and made several stabs at finding a lawyer to reactivate the Pitts case. But John

Myer, the lawyer at Moore, Alexander who was left with responsibility, simply was not

interested. He told Mills that there was nothing left to litigate; the desegregation order

was as far as the law would take the district.

So with a law degree, but no lawyer, Mills went to the library to investigate the

history of the school district; he discovered that the school district had an unpublicized

transfer program that allowing students to transfer from schools where they were in the

racial majority to schools where they were in the racial minority.14 He decided that the all

black school of the neighborhood was not where he wanted his daughter to go, and sent

her instead to an all white school; she was the first African American student ever to

attend Stone Mill Elementary School. Next Mills began to recruit his neighbors, asking

them if they, too, would like to send their children to Stone Mill Elementary School, so

14Mi11s insists that the transfer program started in 1969, under pressure from HEW. Everyone else seems to agree that this program was actually started voluntarily by the School Board in 1972, following the Supreme Court's decision allowing such transfers in Swann v. Charlotte-Mecklenberg Bd. of Ed., 402 U.S. 1 (1971).

that they could share transportation. Now the School District started to get anxious; they

began, says Mills, to impose all sorts of new bureaucratic restrictions on the transfer

program. When the parents refused to comply, and simply enrolled their children in the

white school, the School District had guards stand at the school house door, blocking the

black schoolchildren from entering. 15

At this point the need for a lawyer became much more acute, and Roger Mills

tried again. He approached Don Edwards, who had just graduated from Boston

University Law School and was working at Moore, Alexander on an LDF fellowship.

Edwards agreed to work on the case, if, says Mills, he would do most of the work. For

Mills to properly play a part in the suit, it was necessary, however, that he become a

plaintiff. So he contacted as many of the families named in the original complaint as he

could find. One family still had a child in the school system, but they were no longer

interested in participating. They gave their permission, however, to Mills and his

neighbors to intervene; the court eventually approved. Next Mills drafted a motion

seeking compliance with the 1969 order, which Edwards rewrote and sent to the Inc.

Fund's New York office. There, says Mills, it was reviewed by Drew Days, who sent it

back with his approval. It was filed with Judge Edenfield not long after.

The motion for special relief, as it was called, revolved around three issues -

student transfers, faculty assignments, and attendance zone changes. The plaintiffs won

almost all they asked for in the matter of student transfers. The 1969 order in DeKalb had

prohibited any transfer of students outside their assigned attendance zone. However, in

1971, the Supreme Court had held in Swann v. Charlotte-Mecklenberg Bd. of Ed., 16 that

Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority is an indispensable remedy for those students willing to transfer to other schools

151 relate this story as Mills told it to me; I believe that some of the details are probably incorrect.16402 U.S. 1 (1971)

in order to lessen the impact on them of the state-imposed stigma of segregation.

Apparently in response, in 1973-4, the DeKalb School Board instituted a majority to

minority transfer program (universally called the M-to-M program) like that upheld in

Swann.17 According to Edwards, however, the M-to-M program was not well designed

or well executed. First, no transportation was provided. Second, the program was not

publicized or known -- Roger Mills recalls that there were only 7 participants in 1974.

Third, the program was limited so that students could transfer only to the "next nearest

school" at which minority enrollment was less than 40%. The plaintiffs sought free

transportation for M-to-m participants; much augmented publicity; and a rule that M-tom

transfers really be majority to minority -- that is, that the 40% cap be eliminated, along

with the "next nearest school" requirement. The court ordered each of these measures

taken. The court was not as specific in the remedy it granted to eliminate the racial

imbalance of the faculty of the district Judge Edenfield did find that the school board was

out of compliance with the earlier order, and he held that "reassignment of teachers must

be utilized to make the racial ratio of the faculty in individual schools truly substantially

similar to the system-wide ratio."18

The third issue, attendance zones, was the one that would later take center stage.

In the 1969 order, Judge Edenfield had held that

[T]o the extent consistent with the proper operation of the system, theCounty will, in locating and designing new schools, in expanding existingfacilities and in consolidating schools, do so the with objective oferadicating segregation and perpetuating desegregation.

The plaintiffs later used this language to attack a number of choices made after 1969 by

the school board, when attendance lines were redrawn.

17But see supra note 14. 18App. at 86 (Opinion and Order, November 3, 1976) (quoting Lee v. Macon County Bd. of

Educ., No. 70-251 (N.D. Ala., Aug. 27 1976) slip opinion at 23)).

overcrowding. Second, they argued, they had no obligation to try to counter demographic

trends, having implemented the 1969 order. They cited Pasadena Board of Education v.

Spangler20 for the proposition that once "initial implementation ... had accomplished

th[e] objective" of "racial neutrality in the attendance of students," the trial court "was not

entitled to require the School District to rearrange the attendance zones each year so as to

ensure that the racial mix desired by the court was maintained in perpetuity."21

The court was not persuaded. Already Judge Edenfield had rebuffed a similar

argument in the M-to-m area; the defendants had argued that compliance with the 1969

order meant that they were operating a unitary school system under Green, and that the

court was therefore without power to alter the program. The court responded: "this

court has never made any finding that defendants are operating a unitary system, and finds

instead that the regulations imposed under the M-to-m program perpetuate the vestiges of

a dual system." On the issue of attendance boundaries, the court distinguished Pasadena,

arguing that when the school board changed boundary lines, rather than allowing them to

remain where they had been, they assumed a burden that they would not further

segregation. And, said the court, they could not meet this burden.

In 1968, the school board had chosen a site for two new schools -- Cedar Grove

High School, and Cedar Grove Elementary School. At the same time as boundaries were

redrawn to accommodate, several schools nearby shifted from minority black to more than

majority black. While demography caused some of this switch, the court allowed, the new

boundaries were also at fault. However, said the court, the school board's choice of

boundaries could not be criticized, since there were no better alternatives given the siting

of the school -- and it was not at issue, since it had been decided made prior to the entry

of the 1969 order.

20427 U.S. 424 (1976).21/d.

situation for a class action potentially affecting the lives of so many people. But Edwards

had a good deal of credibility in the black community of DeKalb, which compensated for

the fact that Mills is white. In addition, Mills was a member of the education committee of

the DeKalb County Branch of the NAACP. Since Edwards was operating with at least the

partial support of the Inc. Fund, the two groups were for a time collaborators. Despite

these institutional involvements, Edwards confesses that "I was feeling uncomfortable"

about the way decisions were made in the case for at least several years; "I was just

deciding things after talking it over with Roger." As the M-to-m program expanded,

however, more members of the black community got involved in the cause of

desegregation, and, says Edwards, "that allowed the decisionmaking to be done in an

African tradition of consensus." Consensus or not, Mills remained the key player in the

case, even becoming co-counsel for a brief time. 24 After he resigned as co-counsel in

1979, on taking a job as staff attorney in the civil rights office in Atlanta office of HEW

(now the Department of Education), he remained totally involved -- an activist's activist,

one of the school board's lawyers says. 25

For a year, there was active skirmishing on the composition, procedures, and

duties of the biracial committee. The committee was finally constituted on March 30, 1977

and the first meeting was held (by order of the court) in April of 1977. A plaintiffs

motion for attorney's fees was also filed ($12,000 was eventually awarded, followed a year

later by $13,000). Then came the first of a series of objections to a proposed attendance

zone change, filed by the plaintiffs along with the biracial committee, which had been

nominated half by the plaintiffs and half by the defendants. Judge Edenfield held that

24Mills would have become co-counsel earlier, but he was working as well on the metropolitanAtlanta school desegregation case, Armour v. Nix, unreported opinion of three judge panel, N.D. Ga., ajf d without opinion, 446 U.S. 930. That case's lawyer asked him not to officially appear as a lawyer in the DeKalb case. When, says Mills, ACLU fimding for the Atlanta case ran out (he does not say, when it was lost in the Supreme Court, but this too seems to be the case), he became co-counsel to Don Edwards.

25Conversation with Stan Hawkins.

while he thought the plaintiffs' plan was the better one, there was nothing so segregative

about the school board's proposal as to render it unconstitutional. He continued:

The naked fact is that the school population in the entire southern portion of DeKalb County is growing and its racial composition is going black by leaps and bounds. At some future point in time and on a proper presentation, the court may be called upon to deal with this entire development, although it is true that most all of these changes have been brought about by changing residential patterns, not by school board actions.

The court also foreshadowed the second conflict that would animate the case for the next

fifteen years -- not between the plaintiffs and the school board, but among the plaintiff

class. He wrote:

Moreover, from the communications received by the court from this area in either letters from parents, conferences with the bi-racial committee, and indeed from the testimony at this hearing, it appears to the court that, without in any degree surrendering their constitutional rights, the main interest and emphasis of the black residents in this area is not so much for an exact racial balance as for quality education.

Y, The 1978 Litieation

The order denying relief was handed down in October, 1977. Six months later, the

plaintiffs -- really Roger Mills and Don Edwards -- tried again. The school board went to

the biracial committee on April 3, 1978, with proposals to close an elementary school

which was a successful site for M-to-m transfers, using the facility as a special education

center. In addition, the school board wanted to add some mobile classrooms to a

predominantly black school, rather than adjusting the attendance lines to switch some of

the school's students to nearby underutilized white schools. Finally, the biracial committee

complained that its requests for information were not being honored. Edwards and Mills

filed a motion for supplemental relief less than two weeks after the committee met, in

April of 1978. The motion was largely unsuccessful; the court held that the board could

close the first school, put mobile classrooms next to the second. Judge Edenfield did

emphasize that while the biracial committee

has no authority to order defendants to take or to forbid them from pursuing any specific course of action .... [It] has complete authority to inquire into all matters involving the DeKalb County school system in which there are racial overtones.

The plaintiffs filed a motion to amend this May, 1978 order, which was denied in

September, 1978 at the same time that a school board motion to exclude kindergartners

from the M-to-M program was granted in part. The court held that the school district did

not have to pay for bus transportation for M-to-m kindergartners, but that it did have to

allow these young children to transfer schools.

The plaintiffs must have been getting discouraged, but Edwards and Mills agreed

to file a motion in front of Judge Edenfield asking him to amend the September order.

When he refused, in October, 1978, they decided to go before the Fifth Circuit, for the

first time in this case. In a brief per curiam decision, by a panel of Judges Goldberg,

Roney, and Tjoflat, the appeal was denied.

By court order the chair of the biracial committee switched back and forth between

white and black members. By the next year, under a white chair, the committee was

serving the defendants' interest in the litigation. After studying the path of racial change in

neighborhoods and in schools, the committee concluded that the M-to-m program was

actually hurting efforts at desegregation, because schools that began to have significant

black student populations would often be M-to-m recipient schools of many more black

students. The committee concluded that M-to-m transfers were actually speeding up the

"tipping" of these schools,26 and proposed that M-to-m transfers only be allowed to go to

26The theory of "tipping" is that whites prefer a school (and a neighborhood) that is between 20 and 30% black; more racial mix than that will provoke them to leave. Thus desegregation can proceed

without white flight, Wltil it reaches the tipping point, at which point many of the white families will

abandon the school, accelerating resegregation.

schools where the total black enrollment was less than 26% or the system-wide black

student enrollment percentage, whichever was greater.27

The plaintiffs opposed this proposal, arguing that it was unfair for black children to

have to go even farther away to attend a racially-mixed school, and further that if the plan

was adopted, black children would actually lose the chance to go to a desegregated

school. The only eligible schools would be "overwhelmingly" white, and therefore less

comfortably socially. In a move that showed the double edged nature of statistics, the

plaintiffs also presented data that indicated that M-to-m students were not in fact causing

the "tipping" of the schools they attended. Rather, it was the changing population of the

surrounding residential areas that was the major factor. The court agreed.28

By this point, it had become clear that the M-to-m program was going to be the

major tool of integration used in DeKalb, and that the program was performing this task

by busing black students to somewhat white schools. Indeed the court concluded, "[l]n

particular, [the court] hopes that the Committee, in conjunction with the school board, will

mount an all-out campaign to enroll black children as M-to-m students in schools which

thus far have achieved little integration." The notion that the costs of whatever integration

was going to happen would be borne by African-American children, exclusively, as they

were bused from their own neighborhoods to schools across the county was one that

would become more and more problematic to their parents. 29

27 At this point in time, the two numbers were the same; that is, the total black enrolhnent in DeKalb schools was about 26%.

28App. at 138, 142- (Order, May 8, 1979) 29Of course, some busing programs involve white children as well as black children; in Atlanta,

for example plaintiffs in a school desegregation case proposed busing white as well as black students. In Atlanta, it was generally believed that mandatory busing of white schoolchildren would lead to instant and total white flight from the school system, and even from the city. See GARY ORFIELD & CAROLE ASHKINAZE, THE CLOSING DOOR: CONSERVATIVEPoLICY AND BLACK OPPORTUNITY 104-109 (1991). But

asked, as they frequently are, to bear the entire weight of desegregating their schools, black communities often decide that their own control over their own schools, combined with a new emphasis on educational excellence, is more important than desegregation at their expense. This was the trade off in the so-called "Atlanta Compromise," by which African American leaders pledged not to seek implementation of a mandatory busing program that would cover both the city and surrounding areas (including DeKalb), and white leaders pledged to appoint a black superintendent, and focus resources on black schools. ld.;see

VL The 1983 Litigation; Lakeside and Redan

The four or five year burst of activity in the case ended at this point. The next

important change was that Judge Edenfield died; his place was taken by William C.

O'Kelley, the conservative Chief Judge of the Northern District of Georgia. The case was

somewhat dormant for the first two and a half years of Judge O'Kelley's watch. But in

August 1983, Edwards filed a motion seeking relief from school board plans for three

different schools. Judge O'Kelley "trifurcated1130 the proceedings and held separate

hearings. In his first decision, he waded into a morass of accusations by the plaintiffs

against the superintendent, Dr. Robert Freeman, and against various members (white and

black) of the school board and the superintendent's staff. He favored the defendants,

finding that the events precipitating the charges were misunderstandings, and including a

paean to the superintendent:

Dr. Freeman has conscientiously contributed to the improvement of interaction between the races in the DeKalb County area. He has promoted programs that are color-blind and are for the benefit of all children within the community .... This court commends rather than condemns him for his work in promoting the educational needs of all children in the DeKalb County School System. 31

At the same time, the court gave the plaintiffs the substantive relief they had gone to court

to seek, requiring the school board to allow more M-to-m transfer students into Lakeside

High School, a majority (but not all) white high school. Thus, in praising the defendants,

but giving the plaintiffs what they wanted, the first opinion by the new judge was

decidedly a draw.

generally Drew S. Days, ill, Brown Blues: Rethinking the Integrative Ideal, 34 WM. & MARYL. REv. 53 (1992).

30 App. at 151 (Memorandum Opinion, Sept. 8, 1983)31Id. at 158.

Five months later, in February 1984, was the second (and final -- the plaintiffs

conceded their claim about one school) part of the proceeding. In his opinion, issued

orally from the bench and in writing only a few weeks later, Judge O'Kelley came down

much more solidly on the defendants' side. Indeed he laid the entire groundwork for the

subsequent Supreme Court litigation. The controversy concerned Redan High School,

which during the 1983 school year was over 80% white. The school was overcrowded,

and had been since 1978. Overcrowding had been relieved to some extent by temporary

classrooms, added on to house the overflow. But the crowding persisted and worsened,

finally, in response, the school board proposed to build what came to be known as Redan

II -- a building near the high school, for eighth and ninth graders. Redan II would be,

essentially, a middle school. This does not sound unusual, but in DeKalb, it was the first

time the school board had contemplated any arrangement of grades other than elementary

schools and five year high schools. The plaintiffs argued that the only reason the school

board was not willing to rezone some of Redan's students to other, neighboring, schools

was because they wished to maintain it as a predominantly white school, and to help its

students avoid going to other schools that had a higher percentage of black students. The

school board countered that the plaintiffs proposed attendance lines were not feasible, and

that in any case, the new building would promote desegregation, because it would allow

Redan to serve as a recipient school for M-to-m transfer students, which had been

impossible since 1979, due to the overenrollment

The issue was complicated by the appearance of a group of parents from one of

Redan's neighboring districts, Lithonia. Lithonia is a rural section of DeKalb, with a high

school that has been stably integrated since 1969.32 One of the possibilities contemplated

by Roger Mills, Don Edwards, and the DeKalb County NAACP involved redistricting that

would have affected Lithonia's attendance boundaries. Some neighborhood residents

32There were signs in 1986, the last year for which I have statistics, of a rising black student percentage. I don't know what the current status of this high school is.

This was a serious blow to the plaintiffs; without any warning, the entire set of

presumptions that make school desegregation litigation possible to win was reversed. 36 Of

course, they appealed. The Eleventh Circuit reversed, holding simply that the procedures

necessary for a finding of unitariness had not been initiated or completed. The court

emphasized that until such a finding becomes the law of the case, "a previously segregated

school system is under an 'affirmative duty to take whatever steps might be necessary to

convert to a unitary system in which racial discrimination would be eliminated root and

branch."'37 As long as there was no finding of unitary status, the test of a school board's

actions was not discriminatory intent, but segregative effect. The case was remanded "for

the district court to do what it expressly declined to do before: examine the segregative

and desegregative effects of the defendants' actions." The mandate of the circuit court

issued in late April, and a hearing was held in August of 1985. By that time, the new

construction of Redan II was nearly complete, 38 and so the issue had become how best to

use the new building. Since it was now the role of the district judge to evaluate competing

plans for the use of the building, the war of the experts began at this hearing. The

defendants called upon David Armor, a national (and conservative) expert on

desegregation. He testified that the school board's proposal would be a desegregative

one, because it would allow the accommodation of more students from the neighborhoods

surrounding Redan, which seemed to be becoming stably integrated, and because Redan

would have room for as many as 100-200 M-to-m students. Further, he argued that the

plaintiff's proposals would increase white flight, and thus re-segregate Redan more

extremely.

36It could not have helped that Don Edwards forgot to submit a motion requesting attorney's fees on the Lakeside portion of the litigation. Under the district's Local Rule 421.1, he had only fifteen days to

do so, and Judge O'Kelley proved unwilling to waive the rule. App. at 170-73 (Order, July 11, 1984). 37 App. at 180 (Pitts v. Freeman, No. 84-8286, (11th Cir. March 22, 1985) (Pittman, J. sitting by

designation) (quoting Columbus Bd. of Ed. v. Penick, 443 U.S. 449,459 (1979) and Green v. County School Bd., 391 U.S. 430, 437-38 (1968)).

38App. at 186 (Order, October 31, 1985)

The plaintiffs did not present any expert testimony, and the court found Dr.

Armor's analysis persuasive, despite the fact that it was based on research done in other

school systems, not DeKalb particularly. Judge O'Kelley signaled to the school board

what he would eventually decide, "First, the court has determined on more than one

occasion that recent racial school proportions are due to housing patterns rather than to a

dual system. Second, voluntary desegregation by way of M-to-m transfers has worked

well." The court did admonish the school system to "continue to take desegregation into

account in its future school policy decisions."

VII, The Motion for Final Dismissal

A. Before Judge O'Kelley

The school board's General Counsel in the 1960s (and apparently long before that)

had been Murphey Candler, Jr. of the Decatur, Georgia law firm of Weekes & Candler. It

was Candler who filed the answer in the opening stages of the case. When Candler died,

his partner Gary Sams took over as school board General Counsel. Sams represented

DeKalb in all the hearings described, so far. Perhaps Sams was tired of the litigation; in

any case, he was impressed by Stan Hawkins, the lawyer who represented the community

group HOLD from Lithonia. Sams could read the signals sent by Judge O'Kelley as well

as anybody, and he knew that the next step should be to file a motion for a finding of

unitary status, and a final dismissal of the case. The school board must have been fairly

confident that they could win the motion. Nonetheless it was going to be a lot of work,

and Sams asked Hawkins to represent the school board in that stage. After a check with

his former clients about possible conflicts of interest, Hawkins agreed, and filed the motion

on January 16, 1986.

Don Edwards was still representing the plaintiffs, but he and Roger Mills were

beginning to have differences of opinion. Edwards says, "I wanted to use the case to get

what the black community could get, in terms of education, but Roger felt that the best

time she was closing up her private practice and moving to the ACLU, where she practices

now.50 This meant that the court did not have to know about Wilde's disagreements with

the plaintiffs; she could use her new job as an excuse for her motion to withdraw as class

counsel. She says that she followed in the footsteps of Don Edwards; the case just wore

her out.

B. Before the Eleventh Circuit

So now the plaintiffs were without an attorney, without an institutional sponsor

and seemingly without much hope. The campaign to find a lawyer had proven

unsuccessful. But Marcia Borowski had graduated from law school in May of 1988, and

she agreed to handle the appeal as her first case out of law school. Stan Hawkins was her

opponent before a panel comprised of Judges Fay, Hatchett, and Allgood (sitting by

designation). Says Hawkins, "I was quite literally eaten alive; they barbecued the district

court and me." As for Borowski; "the judges couldn't do enough to help her." Hawkins is

somewhat dismissive of Borowski's skills at the case. When asked what authority she had

for a particular argument -- the one that he thought was the key to the case -- she

answered "Oh, Brown, and Swann, and Green; all those cases." But Borowski did the job,

as Wilde notes; she felt a little silly about her own pessimism when "in comes Marcia,

fresh from the bar exam, and she wins in the circuit court."

The courts' opinion was not complicated, but its arguments were confused and

confusing. It held first that "a school system achieves unitary status when it no longer

discriminates between school children on the basis of race. "51 The test, it said, would be

the six Green factors. So far the district court was OK. However, the circuit panel held,

"[i]f the school system fails to fulfill all six factors at the same time for several years, the

5°'The case had basically blown Wilde's practice; she was out of money, and had done nothingelse for close to a year. In the end, she settled with the school board for $55,000 attorney's fees, of which some $10,000 went to Don Edwards.

51Pitts v. Freeman, 887 F.2d 1438, 1444 (11th Cir. 1989).

district court should retain jurisdiction. 1152 Thus, the court said, school systems would not

be permitted to "achieve unitary status incrementally."53 Until a school system eliminated

"all of the dual system's vestiges,"54 it had a special, affirmative burden not to permit

resegregation.

Having stated the law, the court then looked at the facts, applying the Green

factors to the DeKalb system. It started by noting that transportation, extracurricular

activities, and facilities were not at issue. Further, there was no contest that principals and

teachers were assigned by the school board in a way that increased the racial identifiability

of their schools. This racial skew in faculty assignment -- black teachers and principals at

black schools, and white teachers and principals at white schools -- was an unambiguous

failure on one of the Green factors.

So far, the opinion's arguments make sense. When the court begins its discussion

of student assignments, however, its problems begin. The court held that "a school system

that has not achieved unitary status must take affirmative steps to gain and maintain a

desegregated student population. The DCSS may not shirk its constitutional duties by

pointing to demographic changes occurring prior to unitary status."55 But this is entirely

unclear. Did the court mean that until teacher assignments were brought into line, there

was no unitary status, and so there was a continuing obligation to affirmatively

desegregate the schools? This is the most natural reading of language like that quoted.

Or did the court mean that the segregation of the schools in DeKalb was itself evidence

cutting against a finding of unitary status. There is language supporting this reading, as

well. For example, the court wrote:

The DCSS violated the Constitution by operating a dual system .... Student segregation, prior to achieving unitary status, indicates that

52Id. at 1446.53/d.54/d.55Id. at 1448.

vestiges remain. Therefore, the DCSS must continue to work toward desegregation until it removes all vestiges. The fact that the DCSS achieved racial parity in the area of student assignment on the day it closed the de jure black schools does not demonstrate that it fulfilled its duties to achieve maximum possible desegregation and to avoid the reestablishment of a dual system. 56

This paragraph may have been a disagreement with the district court about the facts of the

case. In holding that the increasing segregation of the schools was itself a school system

failure in the "student assignment" Green factor, the court may have thought it was

reexamining the facts of the case, and finding that the school board could indeed have

made a difference in the racial balance of student assignment. It would follow that when

the school board failed to take this course of action, it increased segregation in violation of

the original 1969 order. Certainly, the opinion would have been bolstered had it stated its

holding in this way. Stan Hawkins observes, however, that Borowski never suggested to

the Eleventh Circuit panel that Judge O'Kelley's factual findings be rejected. Hawkins

believes that this was simply an oversight; Borowski after all was handling her very first

case, and handling it without assistance from anyone except Roger Mills (who seems to

have been lying low at this juncture). Hawkins believes that it was this mistake, more than

any other, that guaranteed the ultimate defeat of the plaintiffs in the Supreme Court and

beyond.

The circuit court's mandate was sweeping. It held: "The DCSS must consider

pairing and clustering of schools, drastic gerrymandering of school zones, and grade

reorganization. The DCSS and the district court must consider busing -- regardless of

whether the plaintiffs support such a proposal. The DCSS's neighborhood plan is not

inviolable." Roger Mills and Marcia Borowski had won. Their victory held up after the

school board hired former U.S. Secretary of Education and Attorney General Griffin Bell

and his Atlanta law firm to work on the motion for reconsideration. Stan Hawkins

56/d.

decided to bring in Bell to get the attention of the circuit court, but the tactic failed; the

motion was summarily denied.

vm, The Supreme Court Liti1:ation

A. Beginning Skirmishes

The school board and Stan Hawkins began to plan an appeal to the Supreme

Court. The first thing to do was to find a lawyer. Hawkins believed that in order for the

Supreme Court to agree to take the case, they had to see a familiar name of the papers

requesting review, known as the "cert. petition." (Certiorari, or cert., is the formal name

of the Supreme Court's reviewing authority) "The court doesn't know Weekes & Candler

from Adam's house cat," Hawkins says. "lf we wanted to get cert., we needed a heavy

hitter." The School District wanted someone who was experienced at Supreme Court

litigation, so they turned away all the inquiries from well-regarded Atlanta firms ("All the

big Atlanta firms made a pitch," says Hawkins). Instead, Hawkins and Gary Sams, the

school system's general counsel, began to investigate Washington firms. One of the

members of the school board suggested that Hawkins speak to Rex Lee and the

Washington law finn Sidley & Austin. Hawkins and Sams set up a phone interview of the

firm and were instantly impressed by Rex Lee and even more so by Carter Phillips, the

partner who would work on the case with Lee. They went up to Washington and had

lunch with both lawyers not long thereafter, and again thought that Lee and Phillips would

be a good team to handle the Supreme Court litigation. Lee then came down to DeKalb,

and talked to the school board, which decided to offer him the representation.

If Hawkins was looking for a heavy hitter, Rex Lee was a natural. At the time of

the Freeman litigation, Lee was president of Brigham Young University. More important

for the school board's purposes was an earlier line on his resume; he had been solicitor

general for four years under President Reagan. The solicitor general is the nation's chief

Supreme Court litigator. He and his office represent the federal government before the

Court; and by all accounts, the Court takes the position of the solicitor general extremely

seriously. During his four year tenure, Lee had an extraordinary success rate in Supreme

Court litigation. 57 After he left the office, he became a partner at the prestigious

Washington litigation finn, Sidley & Austin, focusing on a Supreme Court practice. He

brought Carter Phillips with him to Sidley from the solicitor general's office. A Mormon,

and the founding dean of the Brigham Young Law School, Lee soon left his position at

Sidley to become president of BYU, but he maintained his connection to the finn. He

continued to litigated Supreme Court cases, asking BYU's trustees for special permission

to take on each case as the clients approached him. Freeman would be Lee's fifty-seventh

Supreme Court argument.

The first thing that Lee, Phillips, and Hawkins did was decide to seek a stay of the

Eleventh Circuit's mandate -- that is, they tried to get a court order that the Eleventh's

Circuit's decision would not take effect until the Supreme Court had a chance to review it.

They filed papers with Justice Anthony Kennedy, the Supreme Court Justice who is

assigned to hear such motions coming out of Eleventh Circuit cases. It is supposed to be

very difficult to get a stay; the applicant needs to show that it will suffer irreparable harm

if the stay is not granted, and also that it has a probability of succeeding in its case, once

the merits are presented. When the school board applied for a stay, then, they had to

argue that the Supreme Court would reverse a unanimous panel of the Eleventh Circuit,

and that the stay would protect the School District from being irreparably harmed. Justice

Kennedy granted the stay, pending a decision by the entire court one week later. Over

Thanksgiving weekend, Marcia Borowski worked alone to answer the stay papers. She

won; the Supreme Court as a whole vacated Justice Kennedy's stay. But, says Stan

Hawkins, it was a pyrrhic victory: "She pooh-poohed the immediacy of the appellate

57LINCOLN CAPLAN, THE TENTII JUSTICE: THE SOLICITOR GENERAL AND TIIE RULE OF LAW 69

(1987).

court's order, which helped pull some of the plaintiffs' teeth later, when they wanted the

district court to act." The school board was undaunted by the denial of the stay, and filed

a petition seeking Supreme Court review in February of 1990.

B. Back in the District Court

In the meantime, as soon as the Supreme Court vacated Justice Kennedy's stay

Borowski took the plaintiffs' victory in the appellate court back to Judge O'Kelley. But he

didn't treat it like a victory. According to Borowski, he stalled, trying to give the Supreme

Court ti.me to hear the case and reverse the panel's reversal of his opinion. It took until

February, 1990 till he even had a telephone conference with the parties, asking them what

they thought should happen next. The school board presented a report, stating its

intention to go forward with plans for an augmented magnet program, and other

desegregative programs, but stating also that it had no intention of implementing any kind

of radical redistricting, or cross-county busing. Hawkins describes the plaintiffs' response

succinctly: "They yelled," he says. Nonetheless, he continues, Judge O'Kelley did not

want to force the school district to take "irreparable actions." "He was not about to take

wholesale measures, so when we cranked up our magnet program." That was good

enough for a while.

Borowski had been on her own in the Eleventh Circuit. The DeKalb branch of the

NAACP was there, as always (and Roger Mills contributed $5000 of his own money to

pay Borowski at least a little bit). But the Inc. Fund ended its support of the DeKalb

litigation when Kathy Wilde left and no other institution took its place. The search for

institutional support was getting pretty urgent.

So Borowski went to the American Civil Liberties Union, which does a fair

amount of school desegregation work. The ACLU had sponsored one of Atlanta's school

desegregation cases, Armour v. Nix.58 In fact, the ACLU has been for years the lead

plaintiffs' counsel in the Topeka, Kansas case -- the case that started off modern school

desegregation law, Brown v. Board of Ed. In 1984, the ACLU hired Chris Hansen, a

young lawyer, to represent the Brown plaintiffs. In 1990, Marcia Borowski approached

Hansen and asked him if he would like to be co-counsel in the DeKalb case, as well. Even

if Borowski had wanted to do the Supreme Court argument herself, she could not, since

the Court's rules require that a lawyer cannot appear before it without five or more years

of experience. She explained her predicament and the history of the case to Hansen, and

asked him to take on the case.

Hansen went down to DeKalb from his office in New York, where he is assistant

director of the ACLU's project for children's rights. He spent some time driving around,

talking with Kathy Wilde (now an ACLU colleague of his), with Roger Mills and the other

members of the plaintiffs' steering committee, and with Marcia Borowski. He told

Borowski, he says, that he would be happy to take on the Supreme Court litigation, but

that for the local litigation, she needed to get a black co-counsel. She agreed, and Hansen

began working on the papers that were due in the Supreme Court in March, opposing

review of the favorable Eleventh Circuit opinion. The Brown case was in precisely the

same procedural posture, and Hansen had to file those papers just a month later.

Borowski helped with Hansen's papers opposing cert., but most of her attention

was taken up with the local issues. She was busy trying to get Judge O'Kelley to ignore

the possibility of Supreme Court review, and enforce the more sweeping aspects of the

Eleventh Circuit's order. He was resistant, to say the least. But before the squabble could

blow up, everyone's attention was deflected by a new group of interested parties.

Eighteen black parents and their children sought the permission of the court to intervene in

the case. They were concerned, they said, that quality education -- not racial balance --

58Annour v. Nix, wrreported opinion of three judge panel, N.D. Ga., ajfd without opinion, 446

U.S. 930.

remain the paramount concern of the court and the school district. They were led by

Charles Johnson, a black Atlanta lawyer. The plaintiffs' team called them the "separate but

equal people." Identified by the press as "anti-busing black parents," the intervenors were

a substantial number of families -- a much bigger group than the already named plaintiffs.

Roger Mills says that they were actually a front for conservative whites who wanted to

avoid busing at all costs. In fact, he says, the DeKalb Chamber of Commerce gave their

lawyer $45,000, after receiving money for the purpose from a large number of white

residents. Much more damning (and totally improper, if true), Mills says that Sam

Williams, a black parent who was very involved in the Freeman litigation, heard from a

highly placed source at the school board that the intervenors received significant funding -

as much as $80,000 -- from the district itself. Stan Hawkins denies the charge.

Nonetheless, says Borowski, "We would have been happier had they come to us

instead of going to the court -- I'd never heard of these people before they filed their

motion, and we had a huge number of public meetings and they never came. But we told

the judge, 'Let them intervene,"' so long as intervention did not displace the Mills

plaintiffs, as they came to be called.

The School District did not agree, however. In fact, says Borowski, "they went

apoplectic. They said they only wanted to deal with one set of plaintiffs." In April, Stan

Hawkins requested a hearing on the motion to intervene. The judge agreed, and the

hearing was held in August. By this time, the intervenors were not just asking for

intervention, or a right of appearance in the court. Rather, they wanted to substitute

themselves for the previously named class representatives. The intervenors argued before

Judge Kelly that the named plaintiffs were not adequately representing their views.

After six days of testimony and extensive briefing, Judge O'Kelley took the matter

under advisement; in December, 1990, he issued a 28 page opinion that did what

Borowski says she suggested in the first place, eight months before; he allowed the new

group of parents to intervene, but not to displace the Mills plaintiffs.

It had been over fifteen years since the court had named new class representatives.

Only two families named in the caption of the case still had children in the school district;

Roger Mills, and Major and Cynthia Scott. Borowski knew that she would have to argue

that the way she was conducting the case had significant support in the black community -

but the Scotts were simply not that involved, and Mills is white. As a result, she decided

to try to add the DeKalb Branch of the NAACP as a organizational plaintiff. Since the

NAACP was directly involved, she was able to recruit a staff attorney from the NAACP

(not the Inc. Fund, but the NAACP proper), Willie Abrams, to assist her. Borowski

argued that the joinder of the DeKalb branch was almost a housekeeping measure, by

which the court could bring out into the open what was already true. The court

disagreed:

the DeKalb Branch has been involved in this case throughout its pendency. The court is well aware that the DeKalb Branch has provided the plaintiffs with both legal and financial resources, and that it has also served in somewhat of an advisory capacity. Until the intervention hearing, however, the court had no idea of the actual magnitude of this involvement

After listening to the testimony of various witnesses regarding the DeKalb Branch's involvement, the court is convinced that, for the most part, it has been controlling this litigation. 59

The court intimated that this kind of control was improper. At the same time, Judge

O'Kelley implied that since the DeKalb Branch and the plaintiffs already agreed about

everything, there was no point in adding the NAACP as a party. In addition, Stan

Hawkins put on a vehement defense, persuading the court that the Branch's charter put it

under the control of the national NAACP, and that it was an illegitimate party, as a result

For good measure, the court found that the DeKalb Branch lacked standing. 60

59 Appendix to Brief Amicus Curiae of the Plaintiff-Intervenors (May 2, 1991) (Order, December19, 1990) at 6A-7A.

60Id. at 24A-25A.

Finally, the plaintiffs added to the caption the younger Scott children and yet

another Mills child, along with Roger Mills' wife, Berta. The Mills had gotten divorced in

1986 and Berta retained custody over the children in the caption. This truly was

housekeeping. An interesting aside is that apparently Roger Mills did not have custody

over any of his school-age children, after his divorce. Marcia Borowski had been

extremely worried about this, telling Mills that he just couldn't be a plaintiff anymore, if he

had no child to connect him to the litigation. Mills was not convinced, and in fact was

extremely hurt by what he called Borowski's "trying to get me out of the case."

"Sometimes," he says, "it's your friends who are your enemies." The judge did not even

address this issue in its intervention order.

C. Certiorari.

So far, the Supreme Court had not yet granted review. But review had not been

denied, either. Phil MacGregor, the black member of the school board, had a foot in both

camps; he was on the steering committee of the litigation, and he was a member of the

group being sued. He told Borowski that the board was "just absolutely certain that cert.

would be granted." This confidence seemed at first misplaced. At about the same time as

the petition for cert. was filed, four school desegregation cases came before the Supreme

Court. The case from Oklahoma City, Board of Education of Oklahoma City v. Dowell, 61

was filed first in January, 1990. A month later, the DeKalb case was filed. And two

months after that two more cases were filed: Brown, from Topeka, and Keyes v. School

Board No. I, Denver, another case with a distinguished pedigree. 62

When the Supreme Court is deciding whether it should hear a case, the justices sit

in conference and vote. According to Carter Phillips, when the conference decided to

grant cert. to Dowell, the Oklahoma City case, it also decided to "hold" Freeman. What

61Toe eventual decision can be found at 111 S. Ct. 630 (1991). 62Keyes' earlier appearance at the Supreme Court is at 413 U.S. 198 (1971).

this means is that at least five members of the Court decided to keep the Freeman case in

reserve, pending the decision in Dowell. There are two reasons that the Supreme Court

might decide to hold a case: the first is so that the court can decide a case that has some

bearing on the one being held, and can then vacate the lower court decision and remand

the case for reconsideration in light of the new Supreme Court precedent in the area. The

second reason is that "holding" a case allows the Supreme Court to control the flow of its

own docket. If some members of a court want to address an issue, they can take one case

that they think will raise the issue squarely. If in the first case they are unable to clarify or

settle their concerns, they have in reserve a second case to try again. Just as Thurgood

Marshall and the Inc. Fund planned the course of school desegregation litigation, building

one case on the last case, the Justices too can use cases as building blocks.

While the DeKalb case was put on hold, the Court held the Keyes case and the

Brown case, as well. In January, 1991 -- a month after Judge O'Kelley issued his

intervention opinion -- the Court handed down its decision in Dowell. Like Freeman,

Dowell presented issues about the interplay between demographic change and the

obligations of formerly de jure segregated school systems. Oklahoma City had been the

site of de jure segregation of both housing and schools. After black schoolchildren and

their parents sued for desegregation, the district was ordered by the court to adopt a

'"finger plan," which paired neighborhood schools in black neighborhoods with

neighborhood schools in white neighborhoods. White and black schoolchildren would

attend the formerly white schools for four grades, the formerly black schools for one grade

(there were more white schools than black schools). Only in integrated neighborhoods

would "stand-alone" schools be allowed to exist. Unlike in DeKalb, in Oklahoma City the

problem arose when increasing residential integration caused the school district to set up a

growing number of stand-alone schools. The areas of residential segregation grew farther

and farther apart, forcing the black children who were bused from first to fourth grade to

ride the bus for longer and longer. In 1985, the school district responded by eliminating

the finger plan for grades one through four. Under its new "Student Reassignment Plan,"

11 of 64 elementary schools would become more than 90% black; and 22 would be more

than 90% white. The remaining 31 would be racially mixed.

The district court held that the school district had achieved unitary status, and that

the school board should be free to change its student assignment policies so long as there

was no discriminatory intent to the changes. The appellate court reversed, holding that

the injunctive order setting up the finger plan must stay in effect unless leaving it would

promote "grievous wrong evoked by new and unforeseen conditions."63 After an argument

by Julius Chambers, the director of the Inc. Fund since Thurgood Marshall's tenure at the

organization, by Ronald Day, the school board's lawyer, and by Solicitor General Ken

Starr, the Supreme Court reversed, holding that "From the very first, federal supervision

of local school systems was intended as a temporary measure to remedy past

discrimination."64 It remanded the case to the district court for a hearing on "whether the

vestiges of de jure segregation had been eliminated as far as practicable," in all the areas

identified by Green. Once the vestiges of prior illegal practices were gone, the district

court should release the school district from federal supervision.

Perhaps Dowell's cert. petition persuaded the Justices that the case would allow

the Court to give some guidance to district judges struggling with the last stage of a

desegregation case. But Dowell was not an ordinary case. Its procedural posture was

bizarre and its facts unique, as they described increasing residential integration and the

responses required. If the Court wanted to guide district judges administering "garden

variety" desegregation orders, 65 it would have to try again.

Before it on petitions for review the Court had three cases. Keyes was a case, like

Dowell, whose procedural posture might prevent a clean resolution. Further, its lawyers

63Dowell, 111 S. Ct. at 635.64Id. at 637. 65Respondents' Op. Cert. at 1 (March 15, 1990)

were unknown quantities; their names are unfamiliar, and Chris Hansen confirms that the

Keyes lawyers were not involved in any kind of civil rights strategizing. Using Brown as

the case to signal the national beginning of school desegregation's end-game was just

about unthinkable. Brown is a case that has come to stand for all that can be good about

the Supreme Court -- for its willingness to stand up in the face of massive societal

opposition, and declare its commitment to principles of justice that override all less

pressing concerns. The Court simply could not mark an end to modern school

desegregation law with an admission of defeat in Brown. Thus, if the Court wanted to

address the issues of "end-game" school desegregation, Freeman was the clear choice. It

was evident from the cert. papers that the case would be well litigated. The petition was

signed by Rex Lee, the former solicitor general; it was opposed by the ACLU, no stranger

to Supreme Court litigation.

In addition, if there were members of the Court who wanted to recast school

desegregation law, as seems to have been the case, Freeman presented a very good slate

for them to write on. The petition presented two crucial facts as settled; first, the 1969

implementation of the original desegregation order effectively desegregated the schools,

and second; their resegregation was not caused by the school system's actions. Thus,

according to the petitioners, this was a case about law, not facts. The petition

emphasized: "The Eleventh Circuit did not reverse, as clearly erroneous, the district

court's finding that the school system had in no way contributed the 'resegregation' of the

schools. Instead, the court of appeals held that, as a matter of law, DCSS retained

responsibility for any resegregation in student assignment (due to demographic shifts in

the county) until unitariness had been achieved in all categories of the school system."

If the issue was a legal one, said the petition, it was one that the Supreme Court

should resolve. Setting clear standards would facilitate the end of desegregation orders in

the seventeen states that had been the sites of de jure segregated school systems. The

school system argued that letting a school board run its own programs was a positive

good; comporting with the federalism that the Court has recently emphasized. The

petition also argued that the Eleventh Circuit opinion was in direct conflict with an earlier

First Circuit opinion, and more important with the Supreme Court case of Pasadena City

Board of Education. v. Spangler.66 Finally, the petition reminded the court that the issues

presented would have an impact in many, many cases -- in a footnote, it put the number of

school districts operating under court order at well over 350. 67 Along these lines, the

petition was supported by the Georgia School Boards Association and the National

School Boards Association. The GSBA brief was a brief in support of the DeKalb school

board, pointing out the destructiveness of the Eleventh Circuit's order, 68 the lack of causal

connection between the actions of the school board and the residential segregation of the

county,69 and emphasizing a need for nationally uniform rules of law.70 The brief pointed

out that "even some members of the class represented by plaintiffs disagree with the

position taken by plaintiffs before this Court "71 The NSBA was less partisan, merely

underlining the importance of clear guidance from the Supreme Court on the issue of how

school systems should act to get out from under a desegregation order, and what the

effects of demographic change would be on the law.72 The NSBA specifically disavowed

any intention of filing a brief on the merits, asking only that the Court speak clearly on the

issues raised. In the case of both institutions, Sidley & Austin's Carter Phillips had

recruited their briefs -- but, he says, he was not involved in the brief writing at all. Indeed,

he only saw the briefs a day before they were filed, and he was not given a chance to make

changes.

66427 U.S. 424 (1976). The school system filed a supplemental brief, as well, pointing out a circuit split with a new Fifth Circuit opinion.

67Petitioners Cert. Pet. at 21 n.19. 68Brief on Behalf of the Georgia School Boards Assoc. in Support of the Petition for Cert., at 8.

(March 4, 1990). 69Id. at 11. 7°Id. at 4-5, 10-11.711d. at 10 (citing newspaper article about the intervenors). 72Brief Amicus Curiae of the National School Boards Ass'n in support of the petition for writ of

cert (March 4, 1990)

If the attraction of Freeman for the Justices was that it would be a relatively

uncontroversial vehicle for settling the law of hundreds of school-desegregation cases, as

they entered their final stages, it may be that when Chris Hansen tried to play down the

importance of case, in the plaintiffs brief opposing Supreme Court review, he actually

reassured the Justices that this was the right case to talce. His argument began,

The DCSS was historically segregated by law. This is a garden variety desegregation case in which the original plan did not work to produce the effective dismantling of the dual system envisioned in Green v. County

School Board (neither black schools nor white schools but "just schools").

There is nothing remarkable about such a conclusion. 73

The briefs effort to persuade the Court that the questions presented by the

petitioners had no factual basis was, I think, more likely to be successful. But Hansen

wrote past the facts of the case as found by Judge O'Kelley. He tried to argue that the

record did not "support the claim that DCSS achieved unitary status with respect to

student assignment in 1969 and, without this factual predicate, petitioner' assertion that

the Green facts must be considered in isolation when reviewing unitary status is not

properly before the Court." The problem is that Judge O'Kelley had squarely found that

DeKalb desegregated its student assignments in 1969. In fact, he was even able to

support this finding by a quotation from the plaintiffs' trial brief. Kathy Wilde had written

the sentence that would bring down the case: "The closing of the black schools in 1969

did, for a time, result in the desegregation of the schools in DeKalb County." It is true, as

Hansen argued in his op. cert. brief, that this finding was in direct contradiction to earlier

holdings by Judge Edenfield, at the time. But Marcia Borowski had not asked the

Eleventh Circuit to overturn the finding as clearly erroneous; and thus, by the normal rules

of litigation, it stood.

73Respondents' Op. Cert. at 1.

Similarly, the op. cert. brief argued that the record did not present the factual

predicate for the petitioners' statement that demographics alone caused the segregated

schools of DeKalb. 74 Again, however, Hansen was forced to argue past the record, here.

Ine district court, after all, had specifically found that "other efforts by the DCSS would

not have effectively stopped or even slowed the rapid demographic changes that brought

residential segregation to the County." Hansen tried to argue that the court's finding was

based on an explicit exclusion of the possible ameliorative effects a program of busing

might have had from 1969 to the present. To do this, however, he took the Judge

O'Kelley's opinion out of context, citing without quoting the statement:

the court is convinced that, absent massive busing, which is not considered as a viable option by either the parties of this court, the magnet school program and the M-to-M program ... are the most effective ways to deal with the effects on studentattendance of the residential segregation existing in DeKalb County at this time. 75

Once again, the district court had indeed made the contested finding of fact -- and Marcia

Borowski had not asked the Court of Appeals to reverse it as clearly erroneous. 76 The

petitioners responded by saying exactly that, in a reply brief.77

The Supreme Court granted cert. on February 19, 1991, setting down oral

argument for October 7, 1991 -- the first Monday in October. Freeman v. Pitts would be

the first case heard during the 1991 Supreme Court term. At the same time, the Court

denied cert. in the Keyes case, and continued to hold Brown v. Board of Ed. The pattern

was set; the school system was going to harvest O'Kelley's opinion for all it was worth,

and its findings of fact would in the end dominate the Supreme Court litigation.

74Id. at 17.75App. at 223 (Order, June 30, 1988), cited at Respondents' Op. Cert. at 18 (emphasis added).76The petitioners' reply brief expressed their shock at "respondents' cavalier restatement of the

facts and the legal holdings of the decisions below[, which] render those decisions virtually. unrecognizable. The school board supported its own version by citing the NSBA brief.

77"Respondents did not attack these factual findings in the court of appeals and their eleventh hour attempt to disavow them provides no basis to deny the petition."

D. Briefing the Case.

The school system had reason to be optimistic, as it began to put together its brief

on the merits of the case. The Supreme Court team was four lawyers at Sidley & Austin,

led by Rex Lee and Carter Phillips, and joined by Stan Hawkins, whom Phillips describes

as "probably as knowledgeable about school desegregation law as any lawyer in the

United States." Knowing that this was the kind of case the solicitor general would be

interested in, they immediately set out to get the SG's office on their side. Every time the

Supreme Court agrees to hear a case, the Court sends a copy of the papers filed to the

solicitor general's office. Thus, when Rex Lee (former solicitor general) and Carter

Phillips (his assistant from that time on) sent a memo to Ken Starr, the SG under Bush,

Starr had actually already heard about the case and decided to participate in some way.

(Lee and Phillips had actually tried to get Starr to officially support the cert. petition, but

were refused). To be on the safe side, Phillips had the papers sent to the Civil Rights

Division of the Justice Department, and the Department of Education counsel's office, as

well -- along with a memo setting forth why those departments should support the school

board. Starr immediately said that he wanted to participate on the school board's side -

and in fact, he decided that not only would his office file a brief, but he, himself, would

argue the case along with Rex Lee, on October 7. This was precisely what Lee, Phillips,

and Hawkins had wanted. As Hawkins points out, the solicitor general has the highest

success rate in the Supreme Court of any frequent litigant; if the SG and a party have

closely coinciding views, there is nothing to loose and everything to gain from agreeing to

split your assigned half hour of oral argument time.

Once the solicitor general was on board, there was little for the defendants' team to

do but write the brief and prepare for oral argument. The brief was due in early May,

1991. The school board's brief followed exactly the road set out in the cert. petition. It

emphasized the findings of the district court, arguing that the Eleventh Circuit opinion left

these findings in place and that the plaintiffs had waived the right to contest the facts

because they had not done so in the appellate court. It made a passing bow to "Our

Federalism"-- the idea that courts should respect local autonomy. And finally, it

emphasized the justice and constitutional requirement that school districts be asked to

repair only what they had broken. This is what Stan Hawkins called the causal link

argument, and the brief grounded the argument in the constitutional doctrine of "state

action" -- the rule that the Equal Protection Clause of the Fourteenth Amendment, which

guarantees all citizens "the equal protection of the laws," can prohibit only harms caused

by state action. Altogether, it was an effective brief.

The solicitor general's brief was complementary. This, however, was a happy

coincidence for the defendants, because the SG's office does not give out drafts of its

briefs before filing. Carter Phillips made sure that John Roberts, the Deputy Solicitor

general who was point man on the Freeman case, had a copy of the school board's brief

ahead of time. But the sharing was one way only. Stan Hawkins and Carter Phillips both

emphasize that they and the solicitor general had different interests in the case. The

school board's lawyers wanted to win their case for the school board. The solicitor

general wanted the Supreme Court to push district courts around the country to give up

jurisdiction over school desegregation cases. In the end, however, the two groups of

lawyers worked well together, making different points, but not undermining each others'

case. The major point of the SG's brief was that after a long period of good faith

compliance with a desegregation order, no more should be required. The brief contained

one paragraph that, says Hawkins, "added to my worst nightmare -- that the case would

be remanded to the Eleventh Circuit, so it could assess the factual findings of the district

court." The SG argued that the appellate court had erred in its application of the law, so

that the Supreme Court should correct the legal standard and remand the case to the

Eleventh Circuit "with instructions that it review these findings under the clearly erroneous

standard." Hawkins had been saying all along that the plaintiffs' waived their right to

contest the facts when they failed to do so before the appellate court panel. He dashed off

a memo to the SG's office, and was eventually assured by Ken Starr that if the issue came

up at oral argument, Starr would tell the Justices that his briefs requested disposition was

in error.

The solicitor general's brief was drafted, like all Supreme Court briefs that come

out of his office, by a number of lower level lawyers. First, the papers (supplemented by

voluminous materials provided by Carter Phillips and his associate Mark Hopson) were

sent to a "line attorney" at the relevant department, in this case the Civil Rights Division.

He or she wrote a memo/brief, which was reviewed by a "reviewing attorney." Then the

memo went up to an assistant to the solicitor general, in this case Ronald Mann, who had

arrived to the job only about two weeks before. He turned it into a brief, which was then

reviewed by John Roberts, the Deputy Solicitor General. Roberts had more or less to do

with cases depending on their importance. In this case, he was very involved; he rewrote

the brief before giving it to the SO himself, Ken Starr. Since Starr would be arguing this

case, he too, had more to do with the brief than was typical. Mann reports that Starr did a

fair amount of editing, in addition to his other preparation for argument, which included

reading the entire voluminous record of the case.

Starr's involvement could not have been unexpected by the plaintiffs; they knew he

had argued for the defendants in Dowell, and they knew that when the Court granted cert.,

their case became a very big deal. It seemed obvious that the Court was ready to visit

more definitively the issues of ending federal jurisdiction in desegregation cases, and that

this was going to be the case. The demographic issues, too, were very common to school

desegregation cases, and the whole civil rights bar had an interest in representing the

plaintiffs.

Chris Hansen had never argued a case before the Supreme Court before. More,

school desegregation was not even his main professional focus; he was associate director

of the Children's Rights section of the ACLU. But Hansen had been there for Marcia

Borowski and the plaintiffs when he was needed, and when the Inc. Fund and the NAACP

began to express some interest in taking over the representation, Borowski told them that

the plaintiffs were happy to be staying with Hansen.

He had a lot to do. He had to write a brief (without the several junior attorneys at

Sidley & Austin who helped Phillips and Hawkins). In addition, he had to coordinate the

filing of a group of briefs by interested organizations. Almost every case of general

interest before the Supreme Court has at least a few such briefs. The groups that want to

file them must first get the consent of the parties; they become, for the case, amicus curiae

-- friends of the court -- whose analysis and input is supposed to help the Court assess the

case before it. Two important amicus briefs were filed in the Freeman case -- one by the

Lawyers' Committee for Civil Rights, and another by a group of (left wing) public interest

groups. First of the list of amici in this latter brief was the NAACP, followed by the

DeKalb County Branch of the NAACP. The list continued in alphabetical order with the

American Jewish Committee, the Children's Defense Fund, Fund for an Open Society,

Mexican American Legal Defense and Educational Fund, Puerto Rican Legal Defense and

Education Fund, and the Southern Christian Leadership Conference. The Inc. Fund was

conspicuously absent.

These two briefs might have happened without Hansen's efforts (though not in the

same way). The Lawyers' Committee was founded in 1963 at the request of President

Kennedy to ensure that poor and minority litigants had access to legal services in pursuing

their civil rights. It was a natural participant in the case, and Hansen recalls that Tom

Henderson of the Lawyers' Committee called him to discuss writing a brief. Henderson

thought that the Lawyers' Committee should do its own brief, not join with the NAACP,

which was also certainly going to be a participant. He recruited Norman Redlich, former

Dean of New York University Law School, and former co-chair of the Lawyers'

Committee. Redlich has been for a number of years associated with the Wall Street law

firm of Wachtell, Lipton, though he is not actually employed by the firm. Redlich agreed

to oversee the Lawyers' Committee brief, and one of the first things he did was recruit

Burke Marshall, the head of the Justice Department's Civil Rights Division under President

Kennedy, and also a former co-chair of the Lawyers' Committee. Professor Marshall says

that he "thought the case was a loser. The Eleventh Circuit panel was going to get

reversed." Nonetheless, he agreed to work on the brief, and after a long meeting with

Chris Hansen, he drafted the summary of argument that begins every brief in the Supreme

Court. Two lawyers at Wachtell, an associate named Jeffrey Lang, and a partner named

Stephen Neuwirth, did the rest. They agreed with Hansen that this brief would focus on

the interrelation between the individual Green factors, arguing that there was no logic to

an incremental determination of unitary status.

Willie Abrams, the NAACP lawyer who began working with Marcia Borowski at

the intervention hearing, was in charge of recruiting private lawyers to do the NAACP

brief. He went to the Washington firm of Covington & Burling, which assigned a lawyer

new to the firm, Kurt Wimmer, to the case. In conjunction with Hansen, and with a more

senior lawyer at Covington, Elliott Schulder, Wimmer worked on a draft. This brief was

sort of a cross between the brief in the plaintiffs name and the Lawyers' Committee brief;

it attempted briefly to recast the facts, and then argued that incremental findings of unitary

status were not a good idea. Its unique contribution was different, however. Burke

Marshall describes this case as embodying a "basic ambivalence about whether we want to

upgrade black schools, or change their identifiability as black schools." Hansen thought

from the very beginning that he wanted to include, somehow, social science that could

emphasize to the court that these two goals were actually one and the same. In addition,

he thought it would be useful to put before the court some expert opinions that

demographics and school policies were not exogenous to each other, but inextricably

linked. The NAACP brief was chosen as the vehicle for this agenda, and Wimmer and

Schulder were given the task of coordinating a group of social scientists to incorporate

their work into the brief. The method chosen was not a "Brandeis brief' -- a brief ( of the

type made famous by Justice Louis Brandeis, when he was a litigant before the Supreme

Court) that incorporated social science and statistics into its main body. Rather, after

much discussion about the propriety of the approach, they decided to let the researchers

speak for themselves in a concentrated way by attaching an appendix, longer than their

entire brief, entitled "School Desegregation: A Social Science Statement."

With so many people working on the case, Hansen had to ensure that the

approaches stayed consistent and complementary. Everybody read each other's briefs.

Finally, on June 20, 1991, the papers were submitted. All that was left was the oral

argument. There was nothing special about how either side prepared for oral argument;

Lee, Starr, and Hansen each prepared and then did several practice runs -- moot courts,

lawyers call them -- with their associates who had been working on the case. Lee and

Starr and all their assistants were at each others' moot courts, helping refine their joint

presentation of the case.

E. The Composition of the Court

While all this behind-the-scenes work was going on, a much more public

controversy also colored the Freeman case's outcome. On June 27, 1991, Justice

Thurgood Marshall announced his intention to resign from the Supreme Court at the end

of its term. Justice Marshall had been a sure vote for the plaintiffs. Along with him, they

could count on the justices who joined him in his Dowell dissent, Justices Blackmun and

Stevens. Justice Souter had not yet been seated during the oral argument in Dowell, so he

did not take part in the case's decision; he was a wild card. Another wild card was

Marshall's replacement Clarence Thomas was expected at first to be confirmed in time to

join the Court for its first case of the term, Freeman. Thomas had sharply criticized the

school desegregation efforts of the Inc. Fund and of the federal judiciary; still, you could

never tell. And as the first set of Thomas hearings dragged out, the question grew

whether Thomas would get to the Court in time to hear the case. Of course, in the end,

Thomas's confirmation hearings were reopened for an inquiry into allegations that he had

sexually harassed one of his employees, Anita Hill; the Justices at Freeman's oral

argument were all white, a fact much commented on in press reports of the term's opening

day.

Even without Thomas, the school board's lawyers must have felt reasonably

confident walking in for oral argument. Justice Kennedy had granted the original stay, so

chances were he was a safe ally. And Chief Justice Rehnquist, along with Justices Scalia,

White, O'Connor, and Kennedy had formed the majority in Dowell, an opinion that implied

that the presence of racially identifiable schools was not enough to mandate the

continuation of a desegregation order; more generally Dowell looked kindly on school

systems' need and desire to be free of court supervision. To win the case, the school

system had only to preserve the Dowell majority. Even loosing one vote would be OK, if

Justice Souter could be persuaded.

F. The Oral Arguments

By the accounts of observers, all three men before the Court argued well. Rex Lee

started out by emphasizing that in 1969 the desegregation order was a success; only with

rapid residential transition did there arise any racial imbalance. He found an immediate

ally in Justice White, who asked "But there's no question that there was racial balance as

soon as there was neighborhood schools?"78 Justice Kennedy followed up with a

question that seemed to come out of the solicitor general's brief, with its focus on the

importance of the passing of time to evaluations of good faith efforts to desegregate. He

asked "So is what you are saying that there is really at least a two phase aspect to the

remedial period: a primary phase in which there must be racial balance regardless of the

78Official Transcript, Freeman v. Pitts, 89-1290, at 4. (The official transcript does not identify which Justice asked the questions. I have pieced together the information from a number of press reports of the argument.)

cause, plus a disengagement phase that follows it, and that you are now in the

disengagement phase?"79 But Lee did not want to bite at this suggestion for an

intermediate standard. Instead he insisted that there was compliance with the order from

1969 on; since closing down the de jure black schools had resulted for a time in racial

balance, he was not about to concede any greater duty for the school district.

At this point Justice Blackmun seems to have believed that Lee was portraying the

school district in too rosy a light; he interpolated, "And yet there was total segregation

for 20 years after Brown?" Lee answered: "Almost, yes." "To 1966?" "Yes."

Justice O'Connor entered at this point, signaling what was perhaps the issue that

made her switch her vote between Dowell and Freeman; she joined the majority in the

first, but signed onto the more liberal minority opinion in the second. She asked, "Mr.

Lee, did the district court consider the possibility that the demographic changes in the

seventies were attributable somehow to racially identifiable schools in the district." The

answer to this question should have been no. The district court had considered and

rejected the idea that the school system could have significantly ameliorated the effects of

increased residential segregation. It had not clearly considered and rejected the idea that

the existence of racially identifiable schools acted to steer white incoming residents to

white school areas, and black residents to black school areas. So Lee hedged: "No, it

happens that he did not make that specific finding. But what he did say was that

regardless of whether the school district had taken the steps that years down the road the

respondent said he should have taken, that it wouldn't have made any difference inasf ar as

tl-ie racial mix in the schools was concerned."

Justice Kennedy now came back to his same question: what if implementation of

an initial order did not lead to racial balance, as expected. This time Lee was forced to

answer the question. He said, "Well, that really wasn't this case. Because in this case we

19Id. at 5.

were in balance within a short period of time after the entry of the order. But the question

that you're asking, which is a hypothetical in this case, is a much more difficult one .... In

the majority of instances, I think the answer would be yes, there probably would be a

period of time in which [the obligation to realign attendance zones to promote racial

balance in the schools] would continue."80

Lee used this question as an opportunity to make Stan Hawkins' favorite point:

"The court of appeals did not reject any of the district court's findings as clearly erroneous.

Rather its reversal was based on two legal propositions." Both propositions were legal

errors, he argued. The first was that the school district is responsible even for segregation

caused by demographic changes, if they occur during the pendency of a desegregation

decree. The second was that supervision can only be lifted if there is unitariness in all of

the Green factors, at the same time.

Justice O'Connor had another concern here; she said, "You are asking that ... the

so-called Green factors ... apply incrementally somehow. I'd like to ask whether you

think the Green factors represent distinct constitutional violations or is there a single

violation that we're dealing with. I think this is a concern."

Lee backed off immediately, "It is an important question, Justice O'Connor ....

That is why I regard that second issue as much less important, and really following from

the first."

Justice Stevens now picked up on Justice Kennedy's concern that school boards

would be able to escape resegregation just months after the entry of an order. He asked,

"In 1969 or '70, would it have been the duty, or would the district judge have had the

power to prevent that increased concentration [of majority black schools], even if it were

attributable entirely to demographic changes." Here, Lee contradicted his earlier -- but

hypothetical -- concession to Justice Kennedy. He said, "I think I would be arguing the

80/d. at 7.

same thing, particularly if we could have had the additional finding that we have here that

there's little that we could have done that would have made a difference."

Pressed by Justice Kennedy, who identified the constitutional violation as the

"stigma" caused the "entire black community,"81 Lee would not back down this time. He

stated strenuously that the court's precedents held that the violation was not the existence

of racially identifiable schools, but actual de jure segregation. To hold otherwise, he

argued, the Court would have to overturn its Pasadena precedent, and a number of

important circuit court cases that had stood for more than 10 years. He emphasized that

"what is involved here is the basic distinction between de jure and de facto segregation."

From this point, he was allowed to talk uninterrupted, and he argued first that the

Pasadena case was controlling, and second that concerns about federalism were crucial.

Solicitor General Starr was up next. As in his brief, he focused on the good faith

compliance of the school board, pointing out that the plaintiffs had not attacked its

implementation of the desegregation order until 1975. He was allowed to speak for just a

minute or two before Justices Kennedy and Stevens got back to the issue of the period

immediately following the entry of the desegregation order. Justice Kennedy asked,

"What would have been your response to Justice Stevens' concern and mine as to whether

or not there is an obligation in the immediate period after the desegregation plan is

implemented to [counter] demographic changes. Is there a continuing duty to balance in

this initial remedial phase. "82

Lee's experience had alerted Starr to this line of questioning, so he was ready with

a straight answer. "No. If the demographic change cannot be laid at the feet of the school

board, the answer is no." But now Starr had tried to have his cake and eat it too. Justice

Stevens caught at a contradiction, asking, "But Mr. Starr, if I understand your argument,

it really wouldn't have mattered if the plaintiff had objected violently all along the line

81/d. at 11. 82/d. at 17.

because they wouldn't have been entitled to any protection from demographic changes not

caused by the dual system." Starr was taken aback; he hemmed and hawed for a moment.

Apparently he did not want to be in a position of telling the Court that if an order of

desegregation became ineffective moments after it entered, the supervising judge had no

power to alter the order to correct for new conditions. Finally, he decided that the issue

was one of good faith, as he'd been emphasizing all along; plaintiffs "should certainly be

heard to say this plan was defective [it] it was reasonably foreseeable in light of the nature

of the plan that this [resegregation] would have occurred .... Reasonable foreseeability is

important because it goes to good faith. If the board was party to a decree that was not in

fact entered into in good faith ... "

But Stevens (whose vote probably was not in question, anyway) was not satisfied:

"Why wouldn't it be in good faith. [What] if [the board] said, Well, we can anticipate a

lot of people are going to move into the county because there is a lot of business

developing here and so forth, but that's not our problem. "83 Starr had thought better of

his answer by now, and he replied "I think they could do that."84

The solicitor general tried at this point to get back on track: "They could very well

say, 'Our duty is to treat all students alike and not to treat them differently on grounds of

race,' and that 'We're entitled to have a proper and appropriate educational system as long

as we don't engage in that Now what we do have to do ... is to dismantle the prior dual

system." Starr used this as a transition to his second point; that the Green factors could be

looked at individually, or "incrementally."

But in talking about the Green factors, he had reached Justice O'Connor's already

expressed concern that the factors were interrelated, and could not be separated. His

answer: "It would be passing strange, and in our view, would be a violation of the

limitations of judicial power under the Equal Protection Clause for a remedy ... to be

83/d. at 19. 84/d.

directed at ... integral parts of a school system that had been found to be completely

desegregated." But he had failed to address Justice O'Connor's concern. She tried again:

"Even if that were necessary in order to achieve the requirements on the other ... factors

that haven't been met?" Starr was forced to concede: "That would be quite a different

matter."

Justice Souter wanted to know, then, how judges should implement this

distinction. He asked, "What you want us to hold, then, [is] that once one of the Green

factors has been satisfied, that it simply should be a presumption against further orders

with respect to that factor?" But Starr would not be pulled in that direction; he wanted

the Court to announce a much tougher standard. He answered, "I wouldn't put it that way .

. . . The critical judgment, and it is a judgment by the district court, is whether that board

is acting in good faith." After a brief conclusion, Starr's time was up.

Had I been the defendants, I would have been nervous at this point. The plaintiffs'

could count on Justices Blackmun and Stevens. More, Justice Kennedy seemed allied

with Justice Stevens, and Justice O'Connor positively hostile to the idea that the Green

factors could be evaluated one at a time. And who knew what Justice Souter was

thinking. The room for error was vanishing.

But the questioning of Chris Hansen was very different. Hansen began by trying to

paint a different picture of the DeKalb County schools, arguing that the district court had

found vestiges of the de jure segregated system, and that the schools "remain both

separate and unequal." He emphasized that black schools received fewer resources and

less experienced teachers, and that the "school board has not engaged in good faith

compliance" since after two court orders, teacher assignments had yet to be equalized.85

He was allowed to spend some time on this introduction, but then Justice Stevens wanted

to know Hansen's answer to his question. He asked, "What if it was unquestioned that the

85Td. at 25.

faculty had been appropriately desegregated and that resources were equal, but

nevertheless, there was this student imbalance that was -- that had been going on for

years, almost immediately after the decree was entered?" Hansen answered more

moderately than Borowski had argued before the Eleventh Circuit: "I don't thing the

school district has an obligation to counteract purely demographic changes, and that's not

what we're suggesting. If faculty and staff assignment patterns had been desegregated in

1969, and if the school district had maintained a desegregated school system for some

period of time in the 1969 to 1973, '74, '75 period, I think we'd have a very different

case."

When pressed by Justice White to specify the period of time during which there

was an obligation to maintain racial balance, Hansen answered, "Well, the solicitor

general, in their brief, suggests three years, and we agree." Justice White pounced: "So

there is a constitutional duty to counteract demographic changes." Hansen answered,

"One swallow does not make a spring. Hitting desegregation for one instant doesn't mean

you counteract 50 or 100 years of segregation." Justice White's response? "All you had to

do is say yes," which provoked laughter from the crowd.

Hansen now went to his second point: the interrelatedness of the Green factors.

Justice O'Connor wanted to push him a little here, as she had his opponents. She pointed

out that "there's jurisdiction in the district court, of course, but ... nevertheless, the

remedies have to be tailored to the problem."

Hansen could not argue with this near-truism of equity jurisprudence, but he

pointed out that "the school board's argument rests on ... the notion that the Green

factors don't interact in any way." But, Justice O'Connor countered, "I thought in

response to my questions that we got some response that conceivably they may be

interrelated and that the remedies, conceivably could be." Hansen agreed: "If the faculty

and staff assignments have interacted to create a pattern of segregation, then I don't see

how you can involve a remedy that doesn't break that pattern in all the areas of the

pattern." O'Connor then pointed out the central failing of the plaintiffs' case: "But we

don't have a finding to that effect." And Hansen was forced to concede, "We do not have

a finding. I think it is fair to say that the district court ignored the possibility that the

Green factors operated in interaction."

At this point, Hansen was in trouble: he was arguing the facts in opposition to the

findings of the district court. Justice White pointed out the difficulty. He asked, "What

do you mean by interact?" When Hansen answered, arguing that identifying a school as

black by teacher assignments could promote white flight, and signal to incoming blacks

that this would be a black neighborhood, Justice White said, "Well, but ... the school

board has no responsibility and couldn't possibly have prevented these demographic

changes which caused the student imbalance." When Hansen protested, Justice White

repeated, "Well, that was the finding of the district court" And Hansen reluctantly

agreed, adding only: "the district court in its finding on this regard is somewhat

anomalous," Justice White said, "Well, the court of appeals didn't upset any of his

findings." And again, Hansen was forced to agree.

Hansen never escaped from this trap of the record, in oral argument When he

tried to argue that DeKalb had never seen a school system that didn't have racially

identifiable schools, the Chief Justice asked, "Didn't the district court make a finding on

that question?" And then, "Hadn't your clients also conceded at one point in the litigation

that there was desegregation after the decree?" Hansen tried to explain away that awful

sentence that haunted him through the litigation86 answering, "The court does quote one, I

think, very infelicitiously phrased sentence from the plaintiffs' trial brief, which uses the

term desegregation. I think that was intended to say that we do concede that in 1969 the

black schools themselves were closed." Attempting to place the plaintiffs' version of the

facts before the Court, he continued, "We do think that in 1969 the school district was

86See supra note 45.

confining black children to certain schools, it was assigning black faculty to those schools,

and it was assigning black staff to those schools." But once again the Chief Justice

punctured Hansen's effort: "Was there objection by the plaintiffs, then, to this decree in

'69 because they felt it was inadequate?" And Hansen was forced to concede that the

plaintiffs had raised no objections. But, he argued, the failure was irrelevant: "Either the

black children in this district were entitled to a desegregated education or they were

not."87

A minute or two later, when Hansen was trying to make the point that there had

been "intentional segregation," one Justice (Scalia, I think) said, "Only the court of

appeals didn't go on that thesis you just proposed ... The court of appeals decided on

different grounds, and those are the grounds we're reviewing."

Hansen then tried to put his own spin on some of the earlier precedents, and once

again attempted to persuade the court that from 1969 to 1973, the school board had failed

in its duty to desegregate the schools. Pointing to demographic evidence that the white

flight from southern DeKalb did not begin until the 1973-5, he argued that it would have

been easy to desegregate between 1969 and 1974, but that the school board failed to take

the necessary steps. He concluded "All we ask is that ... the black children of DeKalb

County one day have a desegregated education."

G. The Supreme Court Opinion

The Supreme Court's opinion was announced on March 31, 1992. As Norm

Chachkin of the Inc. Fund had predicted, the plaintiffs' Eleventh Circuit victory was wiped

from the slate. Justice Kennedy delivered the opinion of the Court, joined by Chief Justice

Rehnquist and Justices White, Scalia, and Souter. In addition, Justices Scalia and Souter

each wrote separate concurrences. Justice Blackmun wrote an opinion that reads like a

87Transcript at 33.

dissent, concurring in the judgment -- which was to vacate the Eleventh Circuit opinion.

He was joined by Justices Stevens and O'Connor. In terms of the Court's direction and

thinking, it is interesting that Justice O'Connor did in fact switch sides from Dowell to

Freeman; the Blackmun opinion seems to fit precisely with her questioning about the

interrelatedness of the Green factors. Also interesting is Justice Souter's concurrence,

which seems poised between the two opinions by Blackmun and Kennedy as if he made up

his mind at the very last minute. At the time the Freeman decision was handed down, no

one knew what Justice Souter would be or become on the Court; perhaps this opinion

should have foreshadowed his eventual emergence as one of the three middle justices

(Kennedy, O'Connor, and Souter) who, by all accounts, now sometimes join to restrain

the Court's leaps to the right.

Justice Kennedy's opinion put the issue of incremental relinquishing of jurisdiction

in the foreground. He wrote: "The first [question] is whether a district court may

relinquish its supervision and control over those aspects of a school system in which there

has been compliance with a desegregation decree if other aspects of the system remain in

noncompliance." The opinion held squarely that the answer was yes. The opinion focused

on the limited nature of judicial supervision: "the ultimate objective has not changed -- to

return school districts to the control of local authorities." The opinion mined the analysis

of both the school board and the solicitor general, combining parts of both when the Court

held that "In particular, the district court may determine that it will not order further

remedies in the area of student assignments where racial imbalance is not traceable, in a

proximate way, to constitutional violations." The failure of Hawkins' "causal nexus" was

not enough to justify withdrawal, however. The Court answered the concerns raised by

Justice O'Connor in oral argument (if not thoroughly enough for her to sign on), and also

incorporated the good faith standard urged by Starr:

Among the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: whether there has been full

and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facts of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good faith commitment to the whole of the court's decree and to those provisions of the law and the constitution that were the predicate for judicial intervention in the first place.

Specifically, the Court held, "Once the racial imbalance due to the de jure violation has

been remedied, the school district is under no duty to remedy imbalance that is caused by

demographic factors." However, "the school district bears the burden of showing that any

current imbalance is not traceable, in a proximate way, to the prior violation."

In case the point was not clear, the opinion said again, "Where resegregation is a

product not of state action but of private choices, it does not have constitutional

implications." The court ended its opinion by remanding the case for an inquiry into the

good faith of the school board, as well as a finding by the district court as to whether it

would be useful in desegregating faculty assignments to reassign students, as well.

Justice Scalia seems to have intended his individual concurrence to signal the

direction he thought future case law should follow. He wrote that the majority opinion:

will have little effect ... upon the many other school districts throughout the country that are still being supervised by federal judges, since it turns on the extraordinarily rare circumstances of a finding that no portion of the current racial imbalance is a remnant of prior de jure discrimination. While it is perfectly appropriate for the Court to decide this case on that narrow basis, we must resolve -- if not today, then soon -- what is to be done in the vast majority of other districts, where, though our cases continue to profess that judicial oversight of school operations is a temporary expedient, democratic processes remain suspend, with no prospect of restoration.

Scalia attacked the Green rule that freedom of choice was not enough, arguing that "the

rational basis for the extraordinary presumption of causation simply must dissipate as the

de jure system and the school boards who produced it recede further into the past." And

he concluded, "We must soon revert to the ordinary principles of our law, of our

democratic heritage, and of our educational tradition: that plaintiffs alleging Equal

Protection violations must prove intent and causation and not merely the presence of racial

disparity; that public schooling, even in the South, should be controlled by locally elected

authorities acting in conjunctions with parents; and that it is 'desirable' to permit pupils to

attend 'schools nearest their homes. "'88 No one before the court had gone as far as Scalia,

but his analysis seemed to pick up on the argument made by the solicitor general that after

a number of years of court supervision the question should be one of good faith, and

nothing else. (Good faith, it seems to me, is just another way of talking about intent.)

Justice Souter's opinion was a great deal more mainstream. He offered guidance

to courts attempting to apply the rules developed in Freeman, stating that district courts

should investigate broadly when looking for a causal link between demographic change

and one of the Green factors; and also that they should be on the lookout for possible

effects of remaining vestiges of discrimination in one area of school administration causing

segregation in another area; for example, skewed faculty assignments might lead to

skewed student assignments. "In such a case, the vestige of discrimination in one factor

will act as an incubator for resegregation in others." To deal with this phenomenon,

"before a district court ends its supervision of student assignments, then, it should make a

finding that there is no immediate threat of unremedied Green-type factors causing

population or student enrollment changes that in turn may imbalance student composition

in this way. And, because the district court retains jurisdiction over the case, it should of

course reassert control over student assignments if it finds that this does happen."

Justice Blackmun was joined in his opinion by Justice Stevens and, more

surprisingly, Justice O'Connor. The opinion was nominally a concurrence in the judgment

of the majority, since both the majority and minority thought that the Eleventh Circuit's

opinion should be vacated, and the case remanded. Roger Mills notes, "Blackmun is very

very clever; he turned a dissent into a concurrence" in an effort to make the opinion more

88112 S. Ct. at 1454 (citations omitted)

influential. The Blackmun concurrence was an effort to interpret the majority opinion so

that judges attempting to fulfill its mandate would understand that their inquiry could

remain broad, and that the scope of their mandated remedies could remain sweeping. The

concurrence emphasized that even once they ceased to supervise certain aspects of school

administration, courts should retain jurisdiction -- the power to renew supervision, should

a need arise. In addition, Justice Blackmun analyzed the "causation" requirement,

admonishing district judges not to make O'Kelley's mistake by assuming that demographic

change occurred independent of school policy, and repeating the plaintiffs' argument that

since most of the demographic shifts took place after 1975, the school board was

responsible for increasing isolation of black students before that date, and could not

plausibly deny its responsibility.

IX. The Aftermath,

The case was remanded to the Eleventh Circuit, and Borowski attempted to

convince the court that it should reexamine the district court's 1985 order, making rulings

on factual errors and legal errors (including that "the district court's ruling that DCSS was

not legally responsible for the segregation of students an error of law," that "defendants

have not 'faithfully adhered to' prior court orders," and that the district court could not

hold the School District free of responsibility for student segregation). The brief all but

ignores the Supreme Court disposition of the case, and it was thoroughly rejected by the

appellate court. Instead, the court simply sent the case back to Judge O'Kelley with the

single comment:

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. 89

89979 F.2d 1472 (1992).

Worn out by this loss, perhaps, Borowski recently left the case. Willie Abrams will

continue to work on it, assisted by Covington & Burling, but Roger Mills has not yet

succeeded in finding a new local lawyer. The need has not yet become urgent, since

there's been no action in the district court. Mills remarried not long after his divorce. His

second wife, who is black, has two school-age children. Mills is in the process of adopting

them both. His new daughter has already become a name plaintiff; his new son, who will

enter kindergarten next year, will be added soon. Roger Mills will be a plaintiff as long as

the case lasts.

X, The Result,

Press reports on the Freeman decision show that conservatives claimed the

opinion as a victory, and liberals saw a defeat It seems to me that both from the right and

from the left there are incentives to distort the clarity and import of a decision like this

one. Conservatives want district judges to read the decision as a broadly conservative

one. Liberals want Congress to do the same thing, and then counteract the case's effects.

It seems to me, however, that it is far too early to tell. Freeman v. Pitts could leave

judges supervising school desegregation with all the room they need to fashion effective

remedies, even now. It is far too early to tell.

freeman v. pitts, 112 s. ct. 1430 (1992): the travails of

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