Godby v. Montgomery County Board of Education

MEMORANDUM OPINION

This cause is before the court on the Motion for Summary Judgment filed on July 25, 1997, by the Defendants, Montgomery County Board of Education (“MCBOE”), Superintendent John A Eberhart, Principal Jethro Wilson, and teachers John Bradford and Holli Lovrich. The case was filed by Bethany Godby because of events which occurred while she was a student at Cloverdale Junior *1396 High School. Her complaint is that the Defendants racially discriminated against her and violated other of her federal rights in violation of 42 U.S.C. §§ 1981, 1983, 1985, 1986, and Title VI; and violated Alabama state law by negligently supervising their employees and invading her privacy.

This court has jurisdiction over the claims which state a violation of federal law. 28 U.S.C. § 1331. The court also has jurisdiction over the state law claims based on supplemental jurisdiction. 28 U.S.C. § 1367. For the reasons discussed herein, the motion for summary judgment is due to be GRANTED in part and DENIED in part.

I. SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323.

If the movant succeeds in demonstrating the absence of a material issue of fact, the burden shifts to the non-movant to establish, with evidence beyond the pleadings, that a genuine issue material to the non-movant’s case exists. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); see also Fed.R.Civ.P. 56(e). A dispute of material fact “is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the non-movant’s response consists of nothing more than eonclusory allegations, the court must enter summary judgment for the movant. See Peppers v. Coates, 887 F.2d 1493 (11th Cir.1989).

II. FACTS

As is required at the summary judgment stage, the “facts” in this case are viewed in the light most favorable to the non-movant Plaintiffs, the Godbys. Anderson, 477 U.S. at 255.

The primary Plaintiff in this ease, Bethany Godby, is a mixed-race child. Her father is white and her mother is black. Bethany thinks of herself as being “both” races; and when she has been asked for her race on forms, such as those at school, she has routinely checked both categories. B. Godby Depo. 11; Plaintiffs exh. H (Cloverdale Jr. High School class selection form dated 8-28-95); Plaintiffs exh. 15 (Montgomery Public Schools Registration Cards from 1998-96).

Homecoming queen elections at her school, Cloverdale Junior High in Montgomery, elect (or at least elected) the queens and their courts according to their race. Students are asked to nominate “white” students and “black” students, separately. The seventh and eighth grades each have two representatives on the homecoming court — a student of each race from each grade. Ninth grade has a queen, who is the top vote getter, and two attendants, a white one and a black one.

The Election.

Bethany Godby was in the ninth grade at Cloverdale Junior High School in 1996-97, when this dispute began. On September 10 of that school year, her homeroom held a vote to nominate students for the school-wide homecoming queen election. Godby’s homeroom teacher. Defendant Bradford, was not present, so the vote was conducted by a substitute teacher (who is not a defendant). Students were asked to separately nominate students as either white or black. The winner from each category in the homeroom would be that homeroom’s nominee for the school-wide ballot. The school-wide ballot was also divided into two racial categories: white and black.

Godby was not in her homeroom when the vote started. She learned upon returning, however, that she had been suggested by one *1397 of her classmates as a candidate for the homeroom’s black nominee. Matters became complicated when one of her classmates said that she should run as the homeroom’s white nominee. Other students complained that it would be unfair for Godby to run for both slots, and a discussion about race ensued among the students. B. Godby Depo. 21. The substitute teacher left to consult with Ms. Lovrich, the school’s homecoming director. 1

Lovrich went to the room and talked to Godby about the situation. Lovrich took Godby into the hall and told her that she had to choose one or the other slot in which to run; Godby could not run for both. B. God-by Depo. 22. In effect, the biracial child had to choose: was she white or black? Godby returned to the room and asked her classmates which slot she should choose. The majority of the classmates told her that she should run as the white nominee. Godby ran for the white slot and was selected as her homeroom’s nominee. B. .Godby Depo. 23.

Godby’s nomination during the first vote never made it to the general student body for a vote, however. The school officials have maintained from early on that the first election was invalidated because the girl who received the black nomination from Godby’s homeroom had helped count the votes. This was thought improper. Plaintiffs have not contested that the black nominee helped count the votes. Plaintiffs have noted facts, however, which at least make it appear that other reasons may have led to the invalidation of the first election. Ms. Lovrich has admitted that she used the school computer in the guidance counselor’s office to look up Godby’s race after the first ballot was taken. Ms. Lovrich testified in deposition that the registry on the school computer listed Godby as black. Lovrich did this search because she thought that it was her “duty to make sure what [Godby] was telling me was true.” Lovrich Depo. 18:12 - 20:5.

In any event, however, the first set of nominations was invalidated. Lovrich asked Bradford to redo the elections for both the white and black nominees from his homeroom. On the next day, a second round of votes was taken to get nominations. The school officials have maintained that Godby simply did not win the white nomination of her homeroom during this second vote. God-by has presented evidence, however, that she did win the white nomination of her homeroom during the second vote. This evidence includes her own testimony, affidavits from other students, and the results of a questionnaire given to the students by school officials. 2 Godby herself says that there were no other white nominees from her classroom, so she was selected by default. She was the only nominee, even though students in the homeroom were allowed to nominate anyone from throughout the school.

Taking the facts in the light most favorable to Godby, therefore, it appears that she was nominated by her homeroom as a white nominee for the school-wide election. Godby’s name was not on the school-wide ballot when it appeared, however. That fact is uncontested. School officials have maintained that Godby was not removed from the school-wide ballot, but was simply not nominated by her homeroom on the second try. Godby suggests improper action, however, and presents the evidence of her election, and Ms. Lovrich’s admitted actions.

Godby did not learn that her name was not on the ballot until it was distributed to everyone. She asked Mr. Bradford why her name was not on the ballot, but he said that he did not know. He admits that he at first said that he did not know. Bradford Depo. 25.21 - 26:6. He would not allow her to leave *1398 the room to ask someone at that time. Later in the day, Godby asked Lovrich why her name had not been on the ballot. Lovrich at first told .her that she had not been nominated, but then, according to Godby, told Godby that it was because Lovrich had looked up her school records and discovered that God-by was black.

The Policy of the School.

After the election, Godby’s parents met with the principal of Cloverdale, Jethro Wilson, on two occasions: once with just Mrs. Godby present, a second time with both parents in attendance. Wilson Depo. 72:5-9. Wilson claimed to not know anything about the incident, but told them that he would look into it. Wilson says that he talked to Mrs. Godby about the perceptions of society that mixed children are thought of as black. Wilson Depo. 61:7 - 66:9. As stated by Mrs. Godby, Wilson and she talked about how the biracial election system was set up in the ’60s, “mulattos,” “quadroons,” the effects of “one or two drops of black blood,” and how it had been back in New Orleans. K. Godby Depo. 11:19 - 17:8; Wilson Depo. 62:5 - 66:2.. Wilson also showed Mrs. Godby that Bethany’s registration on the computer showed her to be black. Wilson Depo. 67:7-10.

Wilson testified that Cloverdale had a dual election system at the time that he became principal and that he continued that policy. Wilson Depo. 32:11 - 33:2. A student had to declare one race or the other to participate. See Wilson Depo. 121:13-17 (“Q. Now, if a person is neither black nor white, what category would they fall into under this 1996 procedure for homecoming at Cloverdale? A. That’s no procedure that they would fall under. They have to be one or the other. ”) Wilson says that the “racial quota” in homecoming elections was done “in order to give equal opportunity to both races.” Wilson Depo. 12.2-6. Wilson did not think that there was a compelling reason to have the dual election system. Wilson Depo. 17:13-17. In fact, other activities at Cloverdale do not have a dual election system. Wilson Depo. 36:2 - 39:15.

Lovrich testified that Cloverdale did not use a racially-divided election system in 1994r-95, but returned to that system after complaints from white children and one white parent. Lovrich Depo. 10:17 - 15:17. Eberhart, the school system superintendent, has affirmed that the Cloverdale employees were “vested with th[e] authority to conduct th[e] election as they saw fit.” Eberhart Depo. 105:6-12. He made this statement in the context of discussing Principal Wilson, and teachers Bradford and Lovrich. Eberhart Depo. 103:21 - 105:12. Eberhart also testified that he had no knowledge of the system that individual schools used to select their homecoming queens. Id. at 28:19 - 29:1. He did not know of a compelling reason to have a dual racial classification. Id. at 22:2-12.

Mr. Charles Everett, the executive assistant to the superintendent, testified in deposition. He does not know that anyone on the superintendent’s executive committee has a specific role to advise the superintendent regarding “racial classifications in the selection of students in extracurricular activities;” and states that he is not aware of any discussion regarding racial selection in extracurricular activities among the executive officers. Everett Depo. 20:18 - 21:13. Everett believes that the schools should operate a dual race selection system for extracurricular activities because such a system allows students to “feel a part of the school” as if they have an “ownership” in the school. Everett Depo. 63:1-18.

Mr. Clinton Carter is a part-time consultant to the superintendent. Carter Depo. 5:8-11. Carter was instructed to search the policies of the MCBOE to find if there was a policy relating to racial composition of homecoming courts; he stated that there was no such policy. Carter Depo. 21:22 - 25:10. The Board at one time had a policy which enforced a racial selection of cheerleaders. Carter Depo. 28:11-23. Carter knows of no policy which would have kept a principal from designing his own homecoming election system, even one which used race as a factor. Carter Depo. 11:1-18. He thinks that other schools may have had such policies. Carter Depo. 11:19 - 12:1. He does not know if there was a compelling reason for having such a system. Carter Depo. 12:8-13. Clo *1399 verdale has become progressively more minority over the past twenty years. Carter Depo. 42:14-21.

Defendants have presented evidence that the defendants have adjusted the school policy regarding selection and election of students for positions in response to the incident at Cloverdale. Eberhart Depo. At 95:19 - 96:4 Wilson has testified that, because of a resolution of the MCBOE, during future student elections, the schools “won’t have a classification.” Wilson Depo. 133:2-6. Eberhart appears uncertain of the exact effect of the new policy, however. Eberhart Depo. 96:5-14- The new policy is not legally relevant at this time, however, as the Defendants have raised no issues of standing or mootness in their present motion, and the scope of relief is not before the court. Therefore, the court is not required to make any determinations regarding the evidence presented on this issue.

Involvement of the Media.

Evidence submitted represents that Godby and her parents voluntarily spoke with the media, including newspapers and television, about many aspects of the dispute. Godby described the facts in a Montgomery Advertiser article on October 12, 1996. See “Mixed-race Girl Not on Ballot for Queen, ” Montgomery Advertiser, October 12, 1996. In the article, Bethany described her feelings about the election system, which sometimes allowed white students to win “just because they were white.” Id. She stated that she no longer wanted to be homecoming queen because of the election system. Id. Also in the article, Godby’s father described his daughter’s mental anguish, and his feelings that canceling the election would be unfair. Id. Statements by defendant Eberhart also imply that he saw Godby and her parents voluntarily appear on different media, including television. Eberhart Depo. At 79:15 - 80:1.

After the incident was brought to the attention of the media by the Godby family, the school decided that a response was necessary. The school held a press conference where Principal Wilson spoke. Everett Depo. 43:8 - 46:3. The Principal initially represented that the first election was nullified because of a counting problem; the young lady who won the position of black attendant had assisted in counting the ballots. See Plaintiffs exh. 19 (press statement of Jethro Wilson). He represented that when the second election was held, Godby simply did not receive the requisite number of votes in her homeroom to be put on the school-wide ballot. Id. Godby was not removed from the ballot. Id. Rather, she never made it on the ballot. Id.

Investigation by the School.

Mr. Everett distributed a questionnaire to the students in Godby’s homeroom class asking them about the incident. Everett Depo. 51:3-11. He recalls that the answers to the questionnaires were inconclusive as to the results of the first and second ballots in the homeroom. Everett Depo. 54:22 - 55:17. These questionnaires have been furnished to the court as part of their submission in opposition to the Defendants’ motion for summary judgment, as Exh. 21. They are in fact inconclusive. Ten students stated that God-by was the winner of the second nomination by her homeroom; eleven were not sure; and four thought that another student had won. Although the court is apt to be suspicious of the results of a survey of ninth-graders taken by school officials with whom the students are not familiar, neither side has raised an objection to the admissibility of this evidence. In any event, there is also an affidavit from a fellow student of Godby, stating that Godby won the second election. S. Blackwell Affid.

III. DISCUSSION

Plaintiffs have brought a number of claims in this suit, and have presented even more theories of liability. Plaintiffs appear to be a bit unsure, as are some of the school officials, of what the particular wrong is. Is the wrong the election that was ‘stolen’ from Godby? Or is the wrong that there was not a separate ‘biracial’ category? Or is the wrong that the school was operating a ‘separate-but-equal’ system for homecoming elections?

At least some of the school officials even appear to believe that an election based on separate racial categories is in the best inter *1400 est of students. Far be it from this court to second-guess school professionals on how best to educate children; nevertheless, even school officials must follow the law. Racial categorization by the government is unacceptable, even if it is done for supposedly ‘good’ reasons. The court sustains the central claim of Godby’s suit-Plaintiff has presented a case of racial discrimination that should be heard by a jury. The court will dismiss some of the numerous claims and theories, however.

Section 1983 Freedom of Association.

Plaintiffs first theory of liability is one for violation of her freedom of association rights. The court is hard-pressed to understand what Godby’s freedom of association claim is in this case. Plaintiffs are apparently stumped by their claim as well. They neither defend nor object to the Defendant’s motion for summary judgment on this ground.

It is no doubt true that the Supreme Court has recognized a right of association, closely tied to First Amendment Freedom of Speech. As stated by the Supreme Court:

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.

N.A.A.C.P. v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Bethany Godby has presented no evidence that the MCBOE or its officials have prevented her from associating with any group or organization; nor has she even shown that she has participated in any group or organization with the purpose of advocating some point of view. Godby and her family could, perhaps, qualify as a group which is owed protection. See generally Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (discussing substantive due process rights of extended families to live in same household despite zoning ordinances). The Godbys have not presented the court any evidence of interference by the school board between Bethany and her parents, however. Because the Plaintiffs have not shown how they could have a claim for denial of freedom of association, the court grants summary judgment as to this count.

Section 1983 Racial Discrimination (Individual Capacity / Qualified Immunity).

Discussion of Plaintiffs Section 1983 Equal Protection claim is divided into two sections. The court will deal separately with the Godbys’ claims against the Defendants in their individual capacities and the Godbys’ claims against the Defendants in their official capacities. This is done because of the presence of qualified immunity.

Qualified immunity is a protection designed to allow government officials to avoid the expense and disruption of trial. Ansley v. Heinrich, 925 F.2d 1339, 1345 (11th Cir.1991). An official is entitled to qualified immunity if he is performing discretionary functions and his actions do “‘not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1424 (11th Cir.1997). Courts are to follow a two-step analysis. First, the Defendants must show that they are performing an act within their discretionary authority. If that burden is satisfied, then it becomes the Plaintiffs’ duty to prove that the Defendants violated clearly established law. See., e.g., Sweatt v. Bailey, 876 F.Supp. 1571 (M.D.Ala.1995)..

Discretionary Authority. Plaintiff’s response to the Defendants’ motion for summary judgment on qualified immunity grounds focuses, in great part, on the Defendants’ failure to argue that they were acting within their discretionary authority. This is generally an uncontested issue, so it is not surprising that the Defendants failed to discuss it in their motion for summary judgment. See, e.g., Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994) (skipping over issue of discretionary function *1401 to discuss clearly established law); see also Lancaster, 116 F.3d at 1424 (noting that parties did not dispute whether act was discretionary function). In fact, the determination that an officer was acting within his discretionary authority is quite a low hurdle to clear. As noted by Judge Thompson in Sweatt v. Bailey, 876 F.Supp. at 1576, the burden is made so easy “because of the level of generality at which this requirement must be determined.” An official may show that an act was within his discretionary authority merely by showing that the acts “(1) “were undertaken pursuant to the performance of his duties,’ and (2) were ‘within the scope of his authority.’ ” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir.1994) (finding that transporting prisoners and contracting with jails were part of discretionary duties of U.S. Marshals).

Defendants responded to this failure in their reply brief, and indeed furnished evidence that the school officials were acting within their discretionary authority. Mr. Wilson, as Principal, assigned Lovrich to direct homecoming; Mr. Bradford, as homeroom teacher, conducted an extracurricular activity; Superintendent Eberhart, talked with a Principal and investigated an incident. Indeed, it could not even be seriously contested that these employees were not acting within their discretionary authority. Certainly, it is within the scope and authority of school officials to schedule and conduct extracurricular activities. See generally Green v. County School Board of New Kent Co., 391 U.S. 430, 435, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) (listing “facets of school operation” as “faculty, staff, transportation, extracurricular activities,” and student composition.). Students, in fact, generally consider it to be the most important duty that their teachers and leaders undertake.

Plaintiffs’ only other argument against a finding that these officials were acting within their discretionary authority is a theory that the Defendants could not have been acting within their discretion because they had no discretion to racially discriminate. The Plaintiffs do not cite any cases for this proposition; and indeed, none could be cited. A defendant is not failing to act within his discretion merely because he or she is doing something unlawful. Indeed, if that were the test, why would the court even need to confront the issue of clearly established law? The two steps would be merely conflated into one. It is perfectly logical for a court to find that someone who was acting illegally was acting within his discretionary authority. That is why the court is called upon to decide if the official violated clearly established law (after the court finds the official was acting within his discretionary authority). See Sweatt, 876 F.Supp. at 1576 (“[P]olice officers must perform the duty of controlling persons after arrest ... This is not to condone the use of profanity and unnecessary force. However, these alleged acts are more properly considered in the second step of the test ...”).

Clearly established law. In order to defeat qualified immunity for officials who are acting within their discretionary authority, the Plaintiffs must show that the officials were violating clearly established law. Much of the Plaintiffs’ discussion of “clearly established law” tries to point out the error of the Eleventh Circuit in Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821 (11th Cir. 1997). There, the Eleventh Circuit reaffirmed the Lassiter doctrine: that the previous case must be factually on all fours with the present situation for qualified immunity to not apply. Or, as put in Lassiter, the law must have “earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors in the defendant’s place, that ‘what he is doing’ violates federal law.” Lassiter, 28 F.3d at 1149. The analysis does not focus on analogies. Rather, the analysis “focuses on the actual, on the specific, on the details of concrete cases.” Id. at 1149-50.

As the Plaintiffs point out, the requirement to deny qualified immunity is not one of “factual rigidity,” Nicholson v. Georgia Dept. of Human Resources, 918 F.2d 145, 147 (11th Cir.1990). Nevertheless, there is a strong burden of similarity. A “government agent’s act [must be] so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law” would engage in *1402 it. Lassiter, 28 F.3d at 1149. To not require this would be to allow the Plaintiffs to “discharge their burden” of defeating qualified immunity by “referring to general rules and to the violation of ‘abstract’ rights.” Id. at 1150. Plaintiffs have made no attempt to show this court any case which is remotely on factual all fours with this case; they in fact concede that none exists. The court has not been able to find one on its own, either.

Plaintiffs are not conceding that qualified immunity applies in admitting that there is an “absence of ‘detailed guidance’ from the Eleventh Circuit,” or anyone else, on this issue, however. Plaintiffs Brief at 23. Rather, the Plaintiffs argue that the present case is one of those cases where a reasonable public official should have known that his conduct was unconstitutional even without a factually-similar precedent. Plaintiff is relying on discussion in United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). Lanier notes, in holding that the legal standard is that the “unlawfulness must be apparent in light of pre-existing law,” Jenkins, 115 F.3d at 826 n. 3, that “[t]he easiest cases don’t even arise.” Lanier, 117 S.Ct. at 1227, quoting U.S. v. Lanier, 73 F.3d 1380, 1410 (6th Cir.1996) (Daughtrey, J., dissenting). As an example of such easy cases where there would be no immunity despite the absence of a factually similar precedent, the Supreme Court gave: “a section 1983 case accusing welfare officials of selling foster children into slavery,” Id.

The court is not sold on Plaintiffs’ argument. A slavery case would, indeed, be easy, especially given the clear text of the Thirteenth Amendment. The Fourteenth Amendment is not quite as clear as its immediate predecessor, however. The language is of rather open-ended formulas, in this case, “equal protection,” (which was not even a legal formula or term prior to the enactment of the Amendment). And, indeed, the judicial construction of discrimination, and approval of affirmative action, is known to be rather fluid, even at the level of the Supreme Court. See Metro Broadcasting, Inc. v. Federal Comm. Comm’n, 497 U.S. 547, 564-66, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (approving racial set asides and other “benign racial classifications” by the FCC if calculated to serve “important governmental objectively]”), overruled in Adarand Constructors, Inc. v. Pena,.515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (striking down racial set asides in government contracts because they were not narrowly drawn to further a “compelling state interest”).

Members of the general public cannot often distinguish between legally acceptable discrimination, such as that for pure remedial purposes, and unacceptable discrimination. Both types of discrimination are, after all, administered by the government; the first generally by the federal courts, and the second usually by other branches or authorities. Confusion regarding the legality of discrimination and ‘reverse discrimination’ by public entities could even be justified given the history of school desegregation litigation, which involves repeated .instances of federal decrees which speak in terms of explicitly race-based remedies. See, e.g., United States v. Montgomery County Bd. of Educ., 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969) (affirming order of district. court which set ratios for hiring of black and white teachers). Confusion may also be exacerbated by the retention of programs which were meant initially to serve a remedial purpose in desegregating the schools, see, e.g., Young by and through Young v. Montgomery County (Ala.) Bd. of Educ., 922 F.Supp. 544, 546-47 (M.D.Ala.1996) (noting that school board voluntarily maintained majority-to-minority transfer program which had originally been instituted as part of court order to desegregate), and by the confusing and willful handling of the issues of discrimination by some federal courts, see, e.g., Coalition for Economic Equity v. Wilson, 946 F.Supp. 1480 (N.D.Cal.1996) (preliminarily enjoining enforcement of California Proposition 209 — which was passed by state voters and barred racial discrimination and preferential treatment in terms parroting Supreme Court analysis — because the Proposition would not allow state to engage in affirmative action), vacated 122 F.3d 692 (9th Cir.1997) (vacating injunction, noting a ban on affirmative action would be constitutional as the Fourteenth Amendment “does not require what it barely permits”), cert. denied — *1403 U.S. -, 118 S.Ct. 397, 139 L.Ed.2d 310 (1997); compare Hopwood v. State of Texas, 78 F.3d 932, 934 (5th Cir.1996) (declaring admission preferences for minority students unconstitutional even if done for the allegedly “wholesome purpose of correcting perceived racial imbalance in the student body”), cert. denied 518 U.S. 1033, 116 S.Ct. 2581, 135 L.Ed.2d 1095 (1996) with Hunter by Brandt v. Regents of the Univ. of Cal., 971 F.Supp. 1316 (upholding racial and ethnic admission criteria for elementary school run by University).

Plaintiffs also argue that the Defendants would have been made aware of this clearly established law because of the existence of MCBOE policy. It is not the existence of instructions from one’s employer which determine clearly established law, however. It is the “law” which must be “clearly established” in order to deny qualified immunity to a public official, not some school policy. Lassiter, 28 F.3d at 1149. 3 Further, the existence of clearly established law is established by “ease law” which sets “bright lines,” not “abstractions.” Id. at 1150. The written policy of the MCBOE is not much more concrete than the Fourteenth Amendment itself. 4

Defendants can be entitled to qualified immunity for performing acts which are shocking to some degree. See Jenkins, 115 F.3d at 822-23 (discussing strip search of children by school officials). Nevertheless, the law has found it necessary to protect public officials from the threat of litigation, except in those cases where they are violating clear law which was established in a situation factually similar to their own. “[P]re-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances,” in order for qualified immunity to be denied. Lassiter, 28 F.3d at 1150. The court does note that if its finding, discussed below, that MCBOE officials were violating the Constitution is affirmed by the Eleventh Circuit, then future officials in similar circumstances would not be entitled to qualified immunity. The officials in the present ease, however, are. Plaintiff has not shown that this is such an “exceptional case” to override the “usual rule” of qualified immunity protection for government officials. Lassiter, 28 F.3d at 1149.

Section 1983 Racial Discrimination (MCBOE, Official Capacity).

Plaintiffs’ § 1983 claims are not filed against defendants Lovrieh, Bradford, Wilson, and Eberhart in their individual capacity only. Plaintiffs have also sued Lovrich, et al., in their official capacities and sued the MCBOE as an entity. Among these claims, the court need only confront the claim against the MCBOE as an entity. Claims against officers in their official capacity are “functionally equivalent” to claims against the entity that they represent. Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir .1991). To retain this suit as one against Lovrich, et al., in their official capacity and as one against the MCBOE would be “redundant and possibly confusing to the jury.” Id. The court, therefore, dismisses the § 1983 discrimination claims against Lovrieh, Bradford, Wilson, and Eberhart, in their official capacities. See Id. (affirming directed verdict as to official capacity defendants where city remained as defendant). The court will address the § 1983 claim as one against the MCBOE only.

There is, of course, no respondeat superior liability under § 1983. Monell v. Dept. of Social Serv., 436 U.S. 658, 690-92, 98 S.Ct. 2018,