Citizens Concerned v. School Bd. of Broward, 95-6517-CIV-RYSKAMP.

Page 1166

966 F.Supp. 1166

CITIZENS CONCERNED ABOUT OUR CHILDREN, Jane DOE, as Legal Guardian of Mary Doe, and J. Shaq, as Parent and Legal Guardian of L. Shaq, Plaintiffs, v. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, Defendant.

No. 95-6517-CIV-RYSKAMP.

United States District Court, S.D. Florida.

May 13, 1997.

Christopher Rogers Fertig, Darlene M. Lidondici, Fertig & Gramling, Fort Lauderdale, FL, for Plaintiffs.

Edward James Marko, Marko and Stephany, Marylin Batista, Office of School Bd. Atty., Fort Lauderdale, FL, for Defendant.

OMNIBUS ORDER

RYSKAMP, District Judge.

THIS CAUSE came before the Court upon the Defendant's Motion for Judgment the Pleadings [DE-105], the Defendant's Motion for Summary Judgment as to All Plaintiffs on the Basis of Mootness [DE-106], and the Defendant's Motion for Summary Judgment as to Plaintiff Citizens Concerned About Our Children [DE-107]. The Court heard oral argument on these motions on April 22, 1997. The Motions have been fully briefed by all the parties and are ripe for review.

I. BACKGROUND

This is the fourth in a line of desegregation cases stretching back to 1970 concerning the Broward County School Board ("the School Board").¹ In 1970, following allegations that the School Board was operating a dual system, i.e. one that is intentionally racially segregated, this Court (under Judge Cabot) entered a desegregation Order that directed the Broward County Public School District ("the School District") to integrate pursuant to a plan adopted by the Court. Allen v. Board of Public Instruction of Broward County Fla., 312 F.Supp. 1127, 1129. The District Court's decision was upheld in relevant part on appeal. Id., Allen v. Board of Public Instruction of Broward County, Fla., 432 F.2d 362 (5th Cir.1970), cert. denied, 402 U.S. 952, 91 S.Ct. 1609, 29 L.Ed.2d 123 (1971), and cert. denied, 402 U.S. 952, 91 S.Ct. 1612, 29 L.Ed.2d 123 (1971). One year later, in June of 1971, the Court entered an Order declaring that the School District, now operating under the desegregation plan adopted by the Court, constituted a unitary school system, i.e. one that is racially integrated. Id., 329 F.Supp. 251, 252 (S.D.Fla. 1971). The Court also announced that it would retain jurisdiction to assure that the School Board continued to operate a unitary system. Id. In 1979, the Court (under Judge Eaton) found that no further judicial action was required and it relinquished jurisdiction over the Allen action.

In 1983, two black children filed an action styled Smith v. McFatter, No. 83-6086-CIV-RYSKAMP, alleging that the School Board violated their civil rights by discriminating against them on the basis of race. They claimed that the School Board had failed to comply with the Court's Orders of 1970 and 1971 and was, inter alia, allowing resegregation to take place through maintaining outdated student assignment boundaries, failing to maintain traditionally black schools, and practicing a bussing plan that discriminated against black students. This case was ultimately resolved by the Parties. Pursuant to the Parties' settlement agreement, the undersigned United States District Judge entered a Consent Decree on April 29, 1987, that held that the School Board was not in violation of the Constitution or any other laws. Order at 2. The Consent Decree went on to note that the purpose of the settlement agreement was to "ensure the maintenance of a unitary system of education for the school system of Broward County, Florida." Id. The Consent Decree also required the School Board to undertake the following actions to achieve the purposes of the settlement: (1) appoint a bi-racial committee to review all school district boundaries, all student transfer or student reassignment policies, and all proposed school closings, (2) restrict Magnet Programs to "traditionally black schools," (3) hire staff for and upgrade the Equal Opportunity Office, (4) annually review and evaluate the effectiveness of its own affirmative action plan, (5) hire faculty and staff at each school that, as far as practical, reflects the racial mix of the total Broward County population, and (6) continue to upgrade the school facilities, curriculum, and extracurricular activities in traditionally black schools to ensure that they are "essentially" equal to traditionally white schools. Order at 2-5. The Court also retained jurisdiction to enforce the terms of the settlement. Order at 5. This Consent Decree remained in force until 1995.

A third case was filed in 1992, this time by white parents on behalf of their minor children challenging the denial of student assignment boundary changes based on race. Washington, et al. v. School Board of Broward County, et al., No. 92-6177-CIV-RYSKAMP. These plaintiffs claimed that the School District was now unitary and that therefore the School Board could not deny, solely on the basis of race, a white child's request to transfer out of a predominantly black school and into an integrated, but majority white, school. The Court once again reaffirmed that the Broward County Public Schools were operating a unitary school system. Order of August 16, 1995. After the Court denied the plaintiff's request for partial summary judgment, the case was settled and never went to trial. Final Judgment of March 11, 1996.

Meanwhile, even as Washington v. School Board was pending before this Court, two parents of black children in the Broward County Public Schools together with an association calling itself Citizens Concerned About Our Children ("Citizens Concerned") brought this instant cause of action against the School Board in June of 1995 alleging racial discrimination against black children.

Throughout the course of these latter two law suits, both the white plaintiffs in Washington and the black plaintiffs in Citizens Concerned argued that the School Board improperly relied on the 1987 Consent Decree in making unconstitutional race-based decisions. After the Court declared the Broward County Public School District to be unitary on August 16, 1995, the parties to Smith v. McFatter agreed that the Court need no longer retain jurisdiction to enforce the Consent Decree. In light of this stipulation, the Court entered an Order on June 13, 1996, vacating the Consent Decree as of August 16, 1995, the date of the Court's Order holding that the School District was unitary, and terminating the Court's jurisdiction over the matter. At that time, the Court also held that the actions taken by the School Board up to August 16, 1995, to comply with the 1987 Consent Decree had been taken in good faith to the extent that they complied with that Decree and used race-based criteria in an effort to achieve racial balancing.

Of the three cases that were all ongoing in 1995, the instant cause of action is the only one that remains.² The Plaintiffs bring this cause of action pursuant to 42 U.S.C. § 1983. The individual Plaintiff Mary Doe claims that the School Board's practice of "starbursting," i.e. bussing children from their neighborhood schools to several different schools in an effort to integrate those schools, is applied only to black children and therefore discriminates against her in violation of the equal protection clause of the Fourteenth Amendment. The School Board maintains that it has ended starbursting. The School Board also contends that when it did bus children, both black and white children were bussed in equal proportion, but that white children dropped out of the public schools, thus giving the outward appearance of unequal treatment. The individual Plaintiff L. Shaq claims that she was denied entrance to a magnet program solely on the basis of her race and therefore was discriminated against in violation of the equal protection clause of the Fourteenth Amendment. The School Board maintains that it was acting in good faith reliance on the 1987 Consent Decree in setting racial quotas for admission to magnet programs. The individual Plaintiffs together with Citizens Concerned make generalized claims involving discrimination in violation of the equal protection clause of the Fourteenth Amendment in everything from the condition of school buildings to suspension rates to extracurricular activities to curriculum.³ The School Board disputes all of these generalized claims. The Plaintiffs seek declaratory relief, injunctive relief, and where available, damages.

The School Board first defends on the grounds of capacity and standing, and these are the issues that the Court will address in this Order.

II. DISCUSSION

The School Board argues that Citizens Concerned is a loose association of parents and other citizens that has neither capacity nor standing to bring this cause of action. The School Board also argues that since the claims of the individual Plaintiffs are moot, they also do not have standing to pursue their claims.⁴

A. The Capacity of Citizens Concerned About Our Children to Bring Suit

Although under the common law an unincorporated association does not have capacity to bring a cause of action in its own name, the Federal Rules of Civil Procedure have specifically modified that rule, and an unincorporated association now may sue in its own name to enforce a substantive federal right. Fed.R.Civ.P. 17(b). The courts have recognized that civil rights organizations, such as the National Association for the Advancement of Colored People ("NAACP"), have "a right to the equal protection of the laws, in education and otherwise." N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1562 (11th Cir.1990). Citizens Concerned, therefore, has capacity under Rule 17(b) to bring this cause of action to enforce its substantive rights under the equal protection clause of the 14th Amendment.

B. The Standing of Citizens Concerned About Our Children to Bring This Suit

This Court's jurisdiction is limited by the Constitution of the United States to matters of cases or controversies. U.S. Const., Art. III § 2. Although the doctrine...