DeKalb County School District v. Schrenko

United States Court of Appeals,

Eleventh Circuit.

No. 95-9149.

DeKALB COUNTY SCHOOL DISTRICT, on its own behalf and on behalf of

the children in the DeKalb County School District; Norma Bergman;

Mike Kelly; Terry Morris; Elizabeth Andrews; Lyman D. Howard;

Phil McGregor, et al., Plaintiffs-Appellees, Cross-Appellants,

v.

Linda SCHRENKO, in her official capacity as Superintendent of

Schools for the State of Georgia; State Board of Education for the

State of Georgia; Willou Smith, William R. Grow, Edward B.

Andrews; the Department of Education for the State of Georgia;

the State of Georgia; Zell Miller, in his official capacity as

Governor of the State of Georgia; John Oxendine, in his official

capacity as Comptroller General of the State of Georgia; Steven N.

McCoy, in his official capacity as Director of the Fiscal Division

of the Department of Administrative Services of the State of

Georgia; Larry D. Thompson; Johnny Isakson; Brenda Fitzgerald;

Palmira Braswell; Phillip A. Wilheit, Sr.; E.G. Meypohm; Barbara

Archibald, Defendants-Appellants, Cross-Appellees.

April 7, 1997.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:90-cv-1769-WCO), William C. O'Kelley,

District Judge.

Before ANDERSON, Circuit Judge, KRAVITCH and HENDERSON, Senior

Circuit Judges.

PER CURIAM:

The DeKalb County School District, the members of the DeKalb

County Board of Education, and several individuals brought this

action against the State of Georgia and its Governor, the State

Department of Education, the State Board of Education and its

members, the State School Superintendent, and several other state

officials to recover transportation and program costs incurred by

the plaintiffs because of the desegregation litigation involving

the DeKalb County School District's former dual public school

system. The United States District Court for the Northern District

of Georgia awarded the plaintiffs the desegregative transportation

costs they sought and ordered the State of Georgia to fund those

future transportation expenses. The district court disallowed,

however, the plaintiffs' recovery of the costs of their "majority

to minority" transfer1 and magnet school desegregation programs.

The state defendants appeal the district court's adverse ruling on

the transportation issue, and the DeKalb County plaintiffs filed a

cross-appeal to the district court's rejection of their claim for

their programmatic costs. For the reasons stated in this opinion,

we reverse the district court's judgment granting transportation

costs to the plaintiffs and affirm its ruling in favor of the

defendants denying the plaintiffs' recovery of their costs incurred

in the other desegregation undertakings.

I. BACKGROUND OF THIS APPEAL

A. The Desegregation Litigation.

DeKalb County, Georgia, is a suburban area adjacent to and

east of Atlanta. 2 The DeKalb County Board of Education ("DCBE")

operates the DeKalb County School System ("DCSS"), the schools

within the DeKalb County School District, which, at all times

1

Under the "majority to minority" transfer program, a

student could transfer from a school where his race constituted a

majority of the student population to a school where his race was

in the minority. This program was started by the DCSS on it own

initiative in 1972, but was ordered expanded by the district

court in 1976.

2

A small part of the City of Atlanta extends into DeKalb

County. That area of DeKalb County is part of the City of

Atlanta School System. Similarly, the City of Decatur, located

in the central part of DeKalb County, operates an independent

municipal school system. The areas within the corporate limits

of those two cities are not part of the DeKalb County School

System and are not affected by this action.

relevant to this case, was the largest school district in the State

of Georgia. Consistent with state law and its own policies and

those promulgated by the State Board of Education and the State

Department of Education, the DCSS historically operated a

segregated, dual system of education with separate schools for

black and white students. In 1954, the Supreme Court of the United

States declared segregated schools unconstitutional in Brown v.

Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873

(1954), and the following year ordered all such segregated school

districts to desegregate with "all deliberate speed," Brown v.

Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed.

1083 (1955). Those rulings notwithstanding, the DCSS did not

commence its desegregation efforts until 1966 when it implemented

a "freedom of choice" plan, pursuant to which some black students

attended formerly de jure white schools.3

In 1968, the Supreme Court decided Green v. County School

Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), in which

the Court held that, if freedom of choice plans failed to

adequately end the unlawful segregation of a school district, other

means must be utilized to achieve that purpose. Within two months,

a class of black students filed suit against the DCSS. In June,

1969, the United States District Court for the Northern District of

Georgia entered an order which abolished the freedom of choice plan

and enjoined the DCSS from further discrimination on the basis of

race. The court ordered the DCSS to close all remaining de jure

3

Additionally, in 1968, the DCBE closed Bruce Street High

School, one of two all-black high schools.

black schools and to establish a neighborhood school attendance

policy. The court retained jurisdiction to ensure compliance with

its order. See Pitts v. Cherry, C.A. No. 11946 (N.D.Ga. June 12,

1969).

The parties did not seek any modification of the 1969 order or

request additional relief until 1975 when the plaintiffs complained

that DCSS had violated the earlier plan. In 1976, the district

court ordered the DCSS to expand its "majority to minority" ("M to

M") transfer system of assignment, pursuant to which a student

could transfer from any school in which his or her race was in the

majority to a school in which that race was in the minority, by

providing free transportation to the students, and to reassign

faculty and staff members so that the racial percentages at each

school would approximate those in the system at large. In the late

1970's, the district court considered several plan modifications,

not relevant to this litigation, requested by the DCSS.

In 1983, the plaintiffs sought additional relief in the

district court.4 In an order entered following a hearing on the

plaintiffs' request, the district court, apparently relying on its

1969 order in the case, asserted that the DCSS had been converted

from a dual to a unitary school system in that year. The

plaintiffs appealed to this court, which held that the district

court had improperly declared the DCSS to be unitary without

4

The plaintiffs contended that the limitation on M to M

transfers to predominantly white Lakeside High School and the

proposed expansion of Redan High School would have the effect of

perpetuating segregation in the system. The district court

ordered the DCSS to accept additional black students in the M to

M program at Lakeside but declined to enjoin the expansion of

Redan.

notifying the plaintiffs and conducting a hearing on that issue.

Pitts v. Freeman, 755 F.2d 1423 (11th Cir.1985).

In January 1986, the DCSS filed a motion seeking final

dismissal of the case, and the district court conducted a

three-week bench trial in July, 1987 to determine whether the

system had indeed achieved unitary status. In an order entered

June 30, 1988, the district court denied the DCSS's motion,

concluding that vestiges of the dual system remained in staff

assignments, resource allocation and quality of education. The

court found, however, that the system had become unitary with

regard to student assignments, transportation, physical facilities

and extracurricular activities. Accordingly, the court decided

that no further relief was necessary in those areas. The district

court certified its order for immediate appeal pursuant to 28

U.S.C. § 1292(b), and both sides sought review in this court.5

The appellate panel affirmed the district court's judgment

that the DCSS had not fulfilled its responsibilities with respect

to faculty and staff assignments but reversed its finding that the

DCSS had met its obligations in the assignment of students. The

court also held that a school system could not be declared unitary

until it had maintained racial equality for a period of three years

in all of the categories identified by the Supreme Court in Green.6

5

The plaintiffs did not seek review of the district court's

ruling with respect to the areas of transportation,

extracurricular activities and facilities. Consequently, the

appellate court observed that those issues were not before it.

6

Under Green, the factors to be considered in determining

whether a school system has achieved unitary status are student

assignment, faculty, staff, transportation, extracurricular

activities and facilities. Green, 391 U.S. at 435, 88 S.Ct. at

The court, therefore, determined that the DCSS was not being

operated as a unitary system. Pitts v. Freeman, 887 F.2d 1438,

1450 (11th Cir.1989).

The DCSS petitioned the Supreme Court for review. In 1992,

the Supreme Court reversed this court, holding that a district

court is permitted to withdraw judicial supervision with respect to

discrete categories in which the school district has achieved

compliance with a court-ordered desegregation plan. See Freeman v.

Pitts, 503 U.S. 467, 471, 112 S.Ct. 1430, 1436, 118 L.Ed.2d 108

(1992). According to the Court, "in the course of supervising

desegregation plans, federal courts have the authority to

relinquish supervision and control of school districts in

incremental stages, before full compliance has been achieved in

every area of school operations." Id. at 490, 112 S.Ct. at 1445.7

With respect to the case before it, the Court held "the Court

of Appeals did err in holding that, as a matter of law, the

District Court had no discretion to permit DCSS to regain control

over student assignment, transportation, physical facilities, and

extracurricular activities, while retaining court supervision over

the areas of faculty and administrative assignments and the quality

1692.

7

The Court noted that the racial composition of the student

population of the DCSS had changed dramatically over the years.

When the district court first ordered desegregation of the

system, only 5.6% of the student population was black; by 1986,

the percentage of black students had reached 47%. Freeman v.

Pitts, 503 U.S. at 475, 112 S.Ct. at 1438. Evidence subsequently

introduced in this litigation showed that, by the 1992-93 school

year, black students made up 66% of the district's student

enrollment. (District court order entered September 23, 1994, at

2).

of education, where full compliance had not been demonstrated."

Id. at 492, 112 S.Ct. at 1446. Turning to the question whether

continuing judicial control over student attendance was necessary

to achieve compliance in other areas of the system's operations,

the Court noted that the district court, not having its analysis

before it, did not have the opportunity to make specific findings

and conclusions on this aspect of the case and stated that

"[f]urther proceedings are appropriate for this purpose." Id. at

498, 112 S.Ct. at 1449.

Complying with the Supreme Court's mandate, this court

remanded the case to the district court with the following

instructions:

The issues to be considered by the district court should

include, but not necessarily be limited to, faculty and staff

assignments (which may or may not involve a re-examination of

student assignments), resource allocation, the quality of

education being received by all students and the good faith

commitment of the school district.

Pitts v. Freeman, 979 F.2d 1472, 1473 (11th Cir.1992) (per curiam

).

The district court subsequently entered orders directing the

parties to address whether the DCSS had become unitary with respect

to faculty assignments and resource allocation, whether the system

had demonstrated good faith in complying with the desegregation

order and whether it was providing a quality of education

consistent with the letter and spirit of the decree. The court

held hearings on these issues in January and March, 1996. In an

order entered June 12, 1996, the district court stated that it

would "not revisit those ... factors in which a unitary system has

already been held to exist. Rather, the court will address only

those issues left open by the 1988 Order, and the appellate and

Supreme Court review of that order." Mills v. Freeman, 942 F.Supp.

1449, 1454 (N.D.Ga.1996). Thus, the court considered on the merits

only the issues of faculty assignments, quality of education, and

the DCSS's good faith.8 The court concluded that the DCSS had

achieved unitary status in all respects and granted its motion for

final dismissal of the case. Id. at 1463-64. No appeal has been

taken from that order.

B. History of this Litigation.

This lawsuit was filed in 1990 by the DeKalb County School

District, the members of the DeKalb County Board of Education, and

several parents and students (hereinafter collectively "DeKalb")

against the State of Georgia, the Governor, the State Board of

Education and its members, the State Superintendent of Schools, the

State Department of Education and several other state officials

(collectively the "State") seeking to recover its past

transportation and other expenses related to its desegregation

efforts. In addition, as stated earlier, DeKalb sought injunctive

relief requiring the State to help fund its future desegregation

expenses. It contended that the State's efforts to impede

integration violated the Fourteenth Amendment of the United States

Constitution; the Equal Educational Opportunities Act of 1974, 20

U.S.C. § 1701-1758, which, inter alia, bars a state education

agency from segregating students on the basis of race, color or

8

Given the Supreme Court's opinion in the case and this

court's order remanding the case to the district court, the

district court could have reexamined the area of student

assignments, but the court apparently elected to treat that

question as settled by its 1988 order.

national origin and requires an agency which has practiced such

segregation to take affirmative steps to remove the vestiges of a

dual school system; Title VI of the Civil Rights Act of 1964, 42

U.S.C. § 2000d et seq., which prohibits discrimination on the basis

of race in any governmental program that is the recipient of

federal funds; and certain provisions of state law.

The case was tried to the court in July 1993. The evidence at

trial disclosed that the State funds a portion of each local school

district's educational expenditures depending on a number of

factors including, since 1985, the wealth of the local district.

The State partially reimburses local districts for their

transportation expenses based on a formula in use since the early

1960's. Every three years, using maps supplied by the local

districts plotting the location of students residing more than 1

and 1/2 miles from their assigned or neighborhood school, state

officials draw "ideal" bus routes which will collect those students

and deliver them most efficiently to that school. They then

calculate the number of route miles and buses needed to transport

those students using these ideal routes and determine the amount

each district will be allocated for transportation expenses. These

calculations are made without regard to the actual schools to which

any of the students are assigned or to the local district's actual

bus routes or transportation expenses. Consequently, the State

does not compensate DeKalb, or any other local district in the

state, for the additional expense incurred in transporting the

students in its magnet school and M to M transfer programs, who

frequently reside long distances from the schools which they

attend.9

The district court entered its findings of fact and

conclusions of law in an order dated September 23, 1994. The court

observed that the State had vigorously resisted the integration of

its public schools and had adopted a number of statutes and

policies over the years in an effort to preserve segregated

schools. The court noted that in the 1960's the State had refused

to fund transportation for students outside their local attendance

zone except for white students seeking to attend white schools

under freedom-of-choice plans. (Order at 6-7).10 When compulsory

busing began to be used to desegregate schools, the State

Department of Education adopted in 1972 Policy ED(1)G, which

provided that student transportation funds were to be calculated

using the school nearest the student's residence having space in

the appropriate grade.11 The court found that this policy was

9

The district court observed that 6,251 students who

participated in the M to M transfer and magnet school programs

were transported by the DCSS in fiscal year 1992. (Order entered

September 23, 1994, at 12-13).

10

In support of this statement, the district court cited the

1968 deposition of John C. Maddox, Chief of Pupil Transportation

Services for the State Board of Education, taken in United States

v. Board of Education of Johnson County, Georgia, C.A. No. 696,

in the Southern District of Georgia. The testimony Maddox

actually gave in his deposition, however, does not appear to

support the district court's assertion. In fact, in response to

a hypothetical question posed by one of the attorneys, Maddox

stated that the state would fund the transportation of a black

student who was assigned by a local school board to a formerly

all-white school as part of a freedom-of-choice desegregation

plan. See Maddox Dep. at 108-09, Plaintiffs' Exh. 302.

11

The policy provided the following:

Pupil transportation funds shall be calculated on the

basis of the school having available space in the

pupil's grade level nearest the pupil's place of

adopted to discourage desegregative student transfers. (Id. at 11-

12).12 In 1990, DeKalb requested that the State fund the additional

transportation expenses required by its magnet and M to M transfer

programs. The State refused, citing Policy ED(1)G and other

policies. The district court found that Policy ED(1)G was repealed

in 1991. It apparently was replaced by a similar provision, a rule

adopted by the State Board of Education in November 1990.13

The district court concluded that the State's system of

calculating reimbursable transportation expenses is not consistent

with O.C.G.A. § 20-2-188(d), which directs in part that students

"who live beyond one and one-half miles from the school to which

they are assigned ... shall be eligible to be counted as

residence.

State Board of Education Policy ED(1)G.

12

The district court reached this conclusion notwithstanding

testimony from Samuel P. McCullough, Jr., Director of Pupil

Transportation for the State Board of Education. In his

deposition, taken in the parallel litigation brought on behalf of

the Savannah/Chatham County school system, McCullough testified

that, in the time period from 1976 to 1986, the State funded bus

transportation for students bused to paired schools in

noncontiguous attendance zones for desegregation purposes. See

McCullough Dep. at 95-96.

13

The new policy stated in relevant part:

(i) Routing shall be as uniform as practical. Routing

shall be planned and operated with minimum bus mileage.

Unnecessary travel by empty buses, excessive bus stops,

and excess spur routes off the trunk lines shall be

eliminated....

(v) Students living within one and one-half miles of

school shall not be included in the survey for state

allotment purposes.

State Board of Education Rule 160-5-3-.10(2)(a)(1). See

Plaintiffs' Exhs. No. 75 & 77.

transported students...." From this, the court held that the

State's transportation funding policy violates this provision of

state law, the Fourteenth Amendment and Title VI of the Civil

Rights Act of 1964. The court found, however, that the State had

not violated the Equal Educational Opportunity Act. ( Id. at 20-

14

28). Using figures supplied by DeKalb and not disputed by the

State, the court held that DeKalb was due "$24,632,351 in

transportation monies that should have been paid pursuant to state

law." ( Id. at 43). The court enjoined the State from ignoring

magnet and M to M transfer students in its future calculation of

transportation funding and ordered the State to base its

computation on each student's actual school assignment. ( Id. at

23).

Turning to DeKalb's request for reimbursement for its magnet

school and M to M programs, the district court found that, under

Georgia law, DeKalb was primarily responsible for the operation of

its public schools and, therefore, for remedying the effects of its

earlier dual school system. The court noted that there was "no

evidence ... to suggest that DeKalb's M to M or magnet programs

were ever hindered or interfered with by the state or state

officials in their initial voluntary form or in their judicially

modified form." (Order at 19). The court observed that a

14

DeKalb submitted evidence that the transportation costs of

its M to M transfer and magnet school programs for the fiscal

years 1978 through 1992 was $34,726,764.00. According to the

plaintiffs, if the State had construed O.C.G.A. § 20-2-188 as did

they and the district court, the State would have paid the DCSS a

total of $25,372,748.00 over that period rather than the

$740,397.00 the State actually paid toward those costs. The

district court arrived at the amount of its award by subtracting

the latter figure from the former.

three-judge panel had in an earlier lawsuit "found that no acts on

the part of the state had been shown to foster a segregative

condition since approximately 1964." (Id. at 32, citing Armour v.

Nix, No. 16708, at 7 & 27 (N.D.Ga. Sept. 24, 1979), aff'd, 446 U.S.

930, 100 S.Ct. 2146, 64 L.Ed.2d 784 (1980)). The court further

observed that the Supreme Court had affirmed its finding that the

DCSS was unitary with respect to transportation and three other of

the six factors identified by the Court in Green. On this record,

the court concluded that it could not "order the state to

participate in a remedy for the removal of a vestige of the dual

school system which the court has already declared removed." (Id.

at 30). 15 Therefore, the court refused to order the State to

compensate the DCSS for its programmatic desegregation expenses.

The court distinguished cases cited by the plaintiffs where state

governments had been ordered to pay for desegregation efforts on

the ground that those states had much greater responsibility for

and authority over local schools. Moreover, the court found that,

in those cases, the state or state agencies had been involved in

the desegregation litigation from the beginning. Here, in

contrast, the DCSS had been under court supervision for over 20

years before filing this action against the State.

Both DeKalb and the State filed motions to alter or amend the

judgment. In response to the State's motion, the district court

clarified its order to specify that its award of damages to DeKalb

15

This conclusion seems to conflict with the court's

decision to require the state to participate in a transportation

remedy despite the earlier holding in the desegregation

litigation that the DCSS was unitary with respect to

transportation.

was based on federal, not state, law, thereby avoiding the bar

posed by the Eleventh Amendment to the Constitution. According to

the court, it had used state law simply to measure the damages due

DeKalb. The court reiterated, however, its finding that the State

had not violated the Equal Educational Opportunities Act because

"the transportation policy is not a vestige of the dual school

system...." (Order dated December 19, 1994, at 8) (emphasis in

original). As a consequence of DeKalb's motion, the court awarded

the plaintiffs an additional $9,259,257 in transportation expenses

for the 1993 and 1994 fiscal years. These appeals followed.

II. STANDARD OF REVIEW

The district court's findings of fact may not be disturbed

unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Robinson

v. City of Fairfield, 750 F.2d 1507, 1510 (11th Cir.1985). Its

conclusions of law are subject to de novo review by this court.

Veale v. Citibank, F.S.B., 85 F.3d 577, 579 (11th Cir.1996).

III. DISCUSSION

A. Defendants' Appeal.

1. Retrospective Monetary Relief.

The State urges that the district court's monetary damages

violate the Eleventh Amendment and settled principles of comity and

federalism. It notes that the court's September 23, 1994, order

repeatedly states that DeKalb is due compensation for the State's

violation of O.C.G.A. § 20-2-188, a holding that is barred by the

Eleventh Amendment. While conceding that the district court

clarified its order by relying on the Fourteenth Amendment and

Title VI rather than the state statute as the basis for its award,

the State argues that it is, in substance, one for the violation of

state law. It also insists that the district court's decision

abridges the political integrity of the State by reallocating a tax

burden between DeKalb County taxpayers and those who bear the tax

burden in the state-at-large.

The State also maintains that Title VI does not support the

award of damages in this case. While admitting that Congress has

abrogated the State's Eleventh Amendment immunity with respect to

actions brought pursuant to Title VI, the defendants assert that

this case is far from a legitimate Title VI action. It alleges

that DeKalb County, as a subordinate creation of the state, lacks

standing to bring this action against the State. Moreover, noting

that this case is simply one for allocating a tax burden, not for

substantive relief under the civil rights laws, the State claims

that the individual plaintiffs here also lack standing to seek

relief against the State.

The Eleventh Amendment to the Constitution provides that

"[t]he Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or

by Citizens or Subjects of any Foreign State." Over a century ago,

the Supreme Court made clear that this language also barred suits

against a state by its own citizens. See Hans v. Louisiana, 134

U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). In short, the Eleventh

Amendment constitutes an "absolute bar" to a state's being sued by

its own citizens, among others. See Monaco v. Mississippi, 292

U.S. 313, 329, 54 S.Ct. 745, 750, 78 L.Ed. 1282 (1934). In the

view of the Supreme Court, the principle of sovereign immunity

embodied in the Eleventh Amendment is a broad, fundamental one,

which is "among the most stable in our constitutional

jurisprudence." Welch v. State Department of Highways, 483 U.S.

468, 486, 107 S.Ct. 2941, 2952, 97 L.Ed.2d 389 (1987). The

doctrine plays a vital role in our federal system by preventing the

sensitive problems which would result from compelling one sovereign

to appear in the courts of the other against its will. Id. at 486-

87, 107 S.Ct. at 2952.

For that reason, absent its consent, a state may not be sued

in federal court unless Congress has clearly and unequivocally

abrogated the state's Eleventh Amendment immunity by exercising its

power with respect to rights protected by the Fourteenth Amendment.

See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,

99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). Of course, Congress

may not nullify a state's immunity with respect to alleged

violations of state law. For that reason, a federal court may not

entertain a cause of action against a state for alleged violations

of state law, even if that state claim is pendent to a federal

claim which the district court could adjudicate. Id. at 117-23,

104 S.Ct. at 917-20. According to the Supreme Court, "[a] federal

court's grant of relief against state officials on the basis of

state law, whether prospective or retroactive, does not vindicate

the supreme authority of federal law. On the contrary, it is

difficult to think of a greater intrusion on state sovereignty than

when a federal court instructs state officials on how to conform

their conduct to state law. Such a result conflicts directly with

the principles of federalism that underlie the Eleventh Amendment."

Id. at 106, 104 S.Ct. at 911.

In this case, DeKalb invoked the jurisdiction of the district

court by asserting that the State's conduct violated federal rights

protected by the Fourteenth Amendment, Title VI and the Equal

Educational Opportunities Act. As far as transportation funding is

concerned, however, the gravamen of its complaint appears to be

that the State has improperly interpreted and failed to adhere to

a state statute governing reimbursement for transportation costs.

As was noted earlier, the district court's order concluded that

DeKalb was due additional "transportation monies that should have

been paid pursuant to state law." It is uncontroverted that the

damages awarded to DeKalb in this case was measured by application

of the disputed Georgia statutory provision, O.C.G.A. § 20-2-

188(d). DeKalb's discussion of this issue in its brief before us

is almost entirely devoted to state law. Looking at the substance

of the district court's judgment, it appears to be one for

violation of state law, a holding barred by the Eleventh Amendment.

See Pennhurst, 465 U.S. at 106, 104 S.Ct. at 911.

Replying to the State's post-judgment motion, the district

court modified its initial decision to rest its judgment more

clearly on its finding that the State had violated the Fourteenth

Amendment and Title VI. Even if we assume that the district

court's disposition is based on federal law, the judgment in favor

of DeKalb must still overcome the Eleventh Amendment barrier. The

Supreme Court has found no general abrogation of Eleventh Amendment

immunity for claims brought pursuant to the Fourteenth Amendment.

See Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358

(1979). On the other hand, the parties agree that Congress has

abolished the states' immunity for causes of action grounded in

Title VI. See 42 U.S.C. § 2000d-7.16 Thus, the State could be

forced to defend a Title VI action in federal court without its

consent.

Title VI provides that "[n]o person in the United States

shall, on the ground of race, color, or national origin, be

excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving

Federal financial assistance." 42 U.S.C. § 2000d. 17 While Title

VI is not itself an independent source of federal funding, it bars

discrimination in over 80 federal programs which provide financial

assistance to state and local educational activities. See 34

C.F.R. Pt. 100, App. A.

In spite of this bar, it does not appear that any of the

plaintiffs here have standing to sue the State for a violation of

Title VI. First, it is now clearly the law in this circuit that a

political subdivision of a state, such as the DeKalb County School

District and its Board of Education, may not maintain a suit for a

breach of Title VI against the State in federal court. In U.S. v.

Alabama, 791 F.2d 1450, 1455-57 (11th Cir.1986), cert. denied, 479

U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 144 (1987), a panel of this

16

The abrogation of immunity applies to violations that

occur in whole or in part after October 21, 1986, the effective

date of the Rehabilitation Act Amendments of 1986, Pub.L. 99-506.

See 42 U.S.C. § 2000d-7(b).

17

Pub.L. 88-352, Title VI, § 601, July 2, 1964, 78 Stat.

252.

court held that a state university lacked standing to sue the

sovereign that created it under 42 U.S.C. § 1983 for a violation of

the Fourteenth Amendment. Furthermore, the court concluded that a

state university was not a "person" with rights under Title VI

which could be vindicated in a lawsuit against the state. Id.;

see also Knight v. Alabama, 14 F.3d 1534, 1554 (11th Cir.1994).

DeKalb counters that the plaintiffs can circumvent this

obstacle because there are individual citizens who are plaintiffs

in this case. The Supreme Court has recognized a private right of

action for individuals injured by a Title VI violation. See Cannon

v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946,

1957-58, 60 L.Ed.2d 560 (1979). Nonetheless, the individual

plaintiffs here appear to be only nominally interested in the

outcome of this action. The legitimate interests of those

individuals are in an integrated educational system in DeKalb

County which complies with the requirements of the Constitution,

and their rights in those matters have been vindicated by the

district court in the underlying desegregation action.18 No

discrete relief was sought in this action in favor of the

individual plaintiffs, and none has been awarded for their benefit.

Indeed, given that the DCSS is funding all the desegregation

measures required by the Constitution, these individuals have

suffered no injury at all which could be remedied by the invocation

18

The plaintiffs in the original desegregation litigation

could, presumably, have joined the State and its educational

agencies as defendants in that suit, but they did not do so.

See, e.g., Stanley v. Darlington County School District, 84 F.3d

707, 717 (4th Cir.1996).

of Title VI.19

It must be emphasized that we are not being called upon to

adjudicate the rights of minority students and parents to a

quality, unified educational system in DeKalb County. As just

noted, those rights have been vindicated in the desegregation

lawsuit, and the district court has now declared the DCSS to be a

unitary school system, a determination which is not on appeal. The

plaintiffs in this action sought only a monetary award to

compensate DeKalb for some of its past desegregative transportation

and other program costs and an injunction to require the State to

help fund those initiatives in the future. In other words, this

case is simply about who will pay for the measures undertaken by

DeKalb to remedy the effects of the past segregation of its public

schools, the taxpayers of DeKalb County alone or the taxpayers of

the state as a whole.

If DeKalb had sought this relief in the underlying

desegregation suit, it would be more clearly revealed for what it

is: a third-party claim for contribution by a political

19

It might be argued that the individual plaintiffs have

standing to challenge the State's educational funding practices,

or failure to fund certain desegregation programs, because, as

DeKalb County taxpayers, their local property taxes may be

increased by the State's actions. Even so, in order to have

standing to sue in federal court, a plaintiff must allege an

injury in fact distinct from that suffered by all or a large

class of citizens. See, e.g., Warth v. Seldin, 422 U.S. 490,

499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Therefore, with

respect to federal taxpayers, the Supreme Court has generally

found they lack standing to contest government spending unless

the challenge is to government expenditures which allegedly

violate the Establishment Clause of the First Amendment. See

Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947

(1968). The same result has been reached when local taxpayers

seek to invoke the authority of the federal courts. See Warth,

422 U.S. at 508-10, 95 S.Ct. at 2210-11.

subdivision of a state against the sovereign that created it. Yet,

a federal court's grant of relief in such an instance would be a

serious violation of the most elementary notions of federalism and

comity. A state's power to create, abolish and determine the level

of public funding of political subdivisions has long been

recognized as an element of state sovereignty. See, e.g., City of

Trenton v. State of New Jersey, 262 U.S. 182, 186, 43 S.Ct. 534,

536, 67 L.Ed. 937 (1923). As the Fourth Circuit Court of Appeals

observed in a similar case involving the funding of local school

desegregation measures, "[i]t would be an unfathomable intrusion

into a state's affairs—and a violation of the most basic notions of

federalism—for a federal court to determine the allocation of a

state's financial resources. The legislative debate over such

allocation is uniquely an exercise of state sovereignty." Stanley

v. Darlington County School District, 84 F.3d 707, 716 (4th

Cir.1996); see also Harris v. Angelina County, Texas, 31 F.3d 331,

340 (5th Cir.1994) ("we can think of few greater intrusions on

state sovereignty than requiring a state to respond, in federal

court, to a claim for contribution brought by one of its own

counties"), Kelley v. Metropolitan County Board of Education of

Nashville & Davidson County, 836 F.2d 986, 998 (6th Cir.1987),

cert. denied, 487 U.S. 1206, 108 S.Ct. 2848, 101 L.Ed.2d 885 (1988)

(federal court may not "be called upon to adjudicate an internal

dispute [over local school funding] between a local governmental

entity and the very state that created it"). As a consequence of

these jurisprudential barriers, the district court's monetary award

for transportation costs against the State cannot stand.

2. Prospective Injunctive Relief.

The State also stresses that its arguments concerning Eleventh

Amendment immunity and standing apply with equal force to the

district court's grant of injunctive relief. It calls attention to

the fact that it has been enjoined to adhere to a state funding

statute as that statute has been interpreted by a federal court.

The result will not be any enhancement of the desegregation

programs in DeKalb County, which are already being funded by DeKalb

as the Constitution requires, but, rather, a reallocation of

resources from poorer, rural school districts to a wealthier

suburban district. According to the State, this is beyond the

power of the federal courts. As with the damages award, the State

attacks DeKalb's standing to advance a Fourteenth Amendment or

Title VI claim against it.

Moreover, the State challenges the district court's

interpretation of the transportation funding statute at issue here.

It takes the position that, since the early 1960's, when nearly

every Georgia student attended his neighborhood school, or school

for the attendance zone in which he resided, the statute has been

construed consistently to provide transportation funding only for

students residing more than one and one-half miles from their

neighborhood school based on the distance between their homes and

that school. Finally, the State argues that DeKalb has failed to

identify any nonmonetary injury which it has suffered as a result

of the State's interpretation of the statute.

In support of the district court's grant of injunctive relief,

DeKalb asserts that such a prospective remedy fits within the

exception to Eleventh Amendment immunity recognized in Ex parte

Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). DeKalb

points to a number of cases where states have been ordered to help

pay for the costs of desegregating local schools and have been

enjoined to help fashion remedies for past segregation.

In Young, the Supreme Court carved out a

"prospective-compliance" exception to the jurisdictional bar of the

Eleventh Amendment, holding that a federal court could enjoin state

officials "who threaten and are about to commence proceedings ...

to enforce ... an unconstitutional act...." 209 U.S. at 156, 28

S.Ct. at 452. The exception permits federal courts to enjoin state

officials to conform their conduct to the requirements of federal

law, even if there is an ancillary impact on the state treasury.

See, e.g., Milliken v. Bradley, 433 U.S. 267, 289, 97 S.Ct. 2749,

2762, 53 L.Ed.2d 745 (1977). When, however, "the action is in

essence one for the recovery of money from the state, the state is

the real, substantial party in interest and is entitled to invoke

its [Eleventh Amendment] immunity from suit even though individual

officials are nominal defendants." Ford Motor Co. v. Department of

Treasury of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed.

389 (1945); Pennhurst, 465 U.S. at 101, 104 S.Ct. at 908. A suit

that is essentially one against the state is "barred regardless of

whether it seeks damages or injunctive relief." Pennhurst, 465

U.S. at 101-02, 104 S.Ct. at 909; see Cory v. White, 457 U.S. 85,

102 S.Ct. 2325, 72 L.Ed.2d 694 (1982).

While a number of state officials are named as defendants in

this case in addition to the State of Georgia and its agencies, it

is obvious that this is, in reality, a suit against the State

itself. The only action the defendants are required to take to

comply with the district court's injunction is to pay from the

state treasury the additional funds specified by the district

court. If the defendant state officials make those payments, they

will not be in contempt of the court's order; if they fail to do

so, such failure will constitute contempt. Therefore, as the Sixth

Circuit found in Kelley, the injunctive relief is ancillary only to

itself and does not fall within the Young exception. Thus, this

action is, in substance, one against the state, a proceeding barred

by the Eleventh Amendment.

It is true, as DeKalb points out, that some states have been

ordered by federal courts to help fund local desegregation efforts.

They cite cases involving the desegregation of the Little Rock,

Arkansas, Detroit, Michigan and St. Louis, Missouri school

districts, in which state governments were ordered to participate

in desegregation remedies. The district court found, however, that

the state governments in each of those cases had far greater

responsibility for primary and secondary education and much more

authority over the local school districts. In addition, the states

or state agencies in those cases had participated in the

desegregation litigation since its inception. See, e.g., Little

Rock School District v. Pulaski County Special School District No.

1, 778 F.2d 404, 411-17 (8th Cir.1985) (Little Rock school case);

Bradley v. Milliken, 540 F.2d 229, 232-34 (6th Cir.1976) (Detroit

school case); United States v. State of Missouri, 515 F.2d 1365

(8th Cir.1975) (St. Louis school case).

On the other hand, federal courts have refused to require

state participation in desegregation remedies when the state's

participation was only sought years after the original

desegregation litigation was initiated and when the primary

responsibility for public education rested with the local school

boards. The case factually closest to the present case is Kelley

v. Metropolitan County Board of Education of Nashville & Davidson

County, 836 F.2d 986. In Kelley, the Metropolitan County Board of

Education of Nashville and Davidson County sued the State of

Tennessee some 26 years after the filing of a desegregation suit

involving Nashville and Davidson County seeking reimbursement for

its past desegregation costs and injunctive relief to compel the

State to fund future desegregation efforts. The district court

concluded that a retroactive award for past costs would violate the

Eleventh Amendment but did enjoin the State to pay for 60% of the

local district's future desegregation costs.

On appeal, the Sixth Circuit Court of Appeals held that the

grant of prospective relief violated the Eleventh Amendment.

Kelley, 836 F.2d at 988. The court noted that the case before it

was not about the merits of desegregation or various methods for

achieving that goal, but simply a contest about money, about who

would pay the bill for desegregation measures already in effect.

Id. at 990. According to the court, the fact that the state had

been a constitutional wrongdoer prior to 1956 did not mean it

remained a constitutional wrongdoer more than 30 years later. Id.

at 994. Furthermore, while the state might have an obligation to

eliminate the lingering effects of de jure segregation, federal law

did not require that the obligation be discharged by payments

directly from the state treasury rather than through funds raised

by the local school authorities. Id.

A similar result was reached in United States v. Texas

Education Agency, 790 F.2d 1262 (5th Cir.1986), cert. denied, 479

U.S. 1030, 107 S.Ct. 874, 93 L.Ed.2d 828 (1987). In that case, the

Lubbock Independent School District filed a motion to divide the

costs of its desegregation measures with the state some 14 years

after the original lawsuit was filed. The district court denied

the motion, and the Fifth Circuit Court of Appeals affirmed. In

the view of that court, the case constituted "the LISD's belated

effort to recover costs which smacks of an attempted end-run around

the Texas legislature's allocation of state funds. Yet the State

has not been an active party to his suit since 1970, and it has

never been adjudicated responsible for that segregation in Lubbock

which has proven costly to eliminate." Id. at 1265.

Finally, the Fourth Circuit Court of Appeals recently rejected

efforts to impose on the State of South Carolina some of the costs

of desegregating the Darlington County schools. Stanley v.

Darlington County School District, 84 F.3d 707. There, the

district court had permitted the local district to join the State

as a defendant approximately 30 years after the original

desegregation lawsuit was filed and had ordered the State to pay

15% of the costs of the relief granted in the case. The appellate

court reversed, concluding that the district court had wrongfully

joined the State in the litigation where neither the original

plaintiffs nor the United States as intervenor had sought to pursue

a claim against the State. Id. at 715-16. The court held that a

federal court lacked authority to entertain a contribution claim by

a local school district against the State. Id. at 716-17.

In this case, DeKalb filed suit against the State over 20

years after the desegregation case against it began in an effort to

shift the burden for some of the costs of its desegregation

measures to the State and, by extension, the state's taxpayers at

large. That effort is barred by the Eleventh Amendment and

elementary principles of federalism.

While the parties have not addressed it, there appears to be

an additional problem with a grant of prospective relief in this

case. While federal courts have broad equitable powers to remedy

the wrongs caused by de jure segregation, "it is important to

remember that judicial powers may be exercised only on the basis of

a constitutional violation." Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554,

566 (1971). Further, "[a]s with any equity case, the nature of the

violation determines the scope of the remedy." Id. Therefore,

once a local school district has achieved unitary status, the role

of the district court comes to an end. See generally Pasadena City

Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49

L.Ed.2d 599 (1976). Thus, the Fifth Circuit Court of Appeals has

refused to approve additional equitable relief once a school

district achieved unitary status. According to that court,

accommodation of federal superintendence and federalism will

not tolerate the idea that although the wrong is righted, the

magnitude of the past wrong nonetheless justifies perpetuation

of a federal order limiting the ambit of a school district's

self-governance. It is state government that we are asked to

enjoin. Surely, faithfulness to federalism counsels that

having righted the wrong, the limits we will impose on the

state can be drawn no more tightly than the limits of the

Constitution.

United States v. Overton, 834 F.2d 1171, 1177 (5th Cir.1987).

In this case, the district court has enjoined the State to

alter its interpretation of a state statute in order to provide

DeKalb with additional state funding for its desegregative

transportation programs. Yet, the district court in the

desegregation case concluded that DeKalb had achieved unitary

status with respect to transportation in 1988, a holding not

appealed by the plaintiffs, and that court recently found that the

DCSS was unitary in all aspects of its operations. Like the Fifth

Circuit Court of Appeals, we do not believe that the prospective

injunctive relief granted in this case can be reconciled with a

finding that the DCSS has achieved unitary status.20 In our view,

a federal court lacks authority to compel compliance with such an

indeterminate prospective order once the Constitutional violation

has been remedied. For these reasons, the district court's grant

of injunctive relief to DeKalb requiring the State to fund DeKalb's

future transportation costs must be reversed.

B. Plaintiffs' Appeal.

DeKalb appeals the district court's rejection of its request

for reimbursement for some of its non-transportation desegregation

costs. In its opinion, the State's history of enforcing

20

For the same reason, we doubt that the district court had

authority to award DeKalb its past desegregative transportation

expenses once DeKalb had been found to be unitary with respect to

its transportation operations. Since we have decided, however,

that the district court's award of such expenses must be reversed

on other grounds, we need not reach that issue.

segregation renders it liable for at least some of DeKalb's costs

in desegregating its schools.

As stated above, the district court found that DeKalb was

primarily responsible for operating its public schools and,

further, that the State had not impeded DeKalb's M to M or magnet

school programs. Therefore, as a factual matter, the State could

not be held liable for DeKalb's costs in developing and

implementing those desegregation programs. Furthermore, for the

reasons discussed earlier respecting DeKalb's transportation

expenses, the State may not be required legally to contribute to

those costs. DeKalb has not cited any case where there was a

similar division of responsibility for public education, and where

liability for desegregation costs was sought to be imposed on state

government years after the initiation of such efforts, which held

the state financially responsible for local school desegregation

efforts. The Courts of Appeals for the Fourth, Fifth, and Sixth

Circuits have rejected such claims for state contribution in

similar circumstances, and we feel compelled to follow their

course. Stanley, 84 F.3d at 716-17; United States v. Texas

Education Agency, 790 F.2d at 1264-65; Kelley, 836 F.2d at 988-

1001. The district court's rejection of DeKalb's claim for

programmatic costs is therefore affirmed.

The judgment of the district court is AFFIRMED in part and

REVERSED in part.