PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
THEODORE WHITMORE STANLEY;
KEVIN BARBER, minor, by his father
and next friend Jesse Barber;
PATRICK BARBER, minor, by his
father and next friend Jesse Barber;
BRYAN BARBER, minor, by his father
and next friend Jesse Barber;
LURLEAN BESS MACK, minor, by
J. W. Mack, her grandfather and
next friend; BRIAN FRANKLIN, minor,
by his mother and next friend Joyce
No. 95-1827
Franklin; JAY FRANKLIN, minor, by
his mother and next friend Joyce
Franklin; UNITED STATES OF
AMERICA,
Plaintiffs,
v.
DARLINGTON COUNTY SCHOOL
DISTRICT, a public body corporate,
Defendant-Appellee,
v.

THE STATE OF SOUTH CAROLINA; THE

DEPARTMENT OF EDUCATION FOR THE
STATE OF SOUTH CAROLINA; THE
BOARD OF EDUCATION FOR THE
STATE OF SOUTH CAROLINA;
WILLIAM P. BECKHAM, III, In
Official Capacity as Member of the
State Board of Education;
SAMUEL M. GREER, In Official
Capacity as Member of the State
Board of Education; JOSEPH PEELER
STABLER, Colonel, In Official
Capacity as Member of the State
Board of Education; CLEVELAND
SELLARS, In Official Capacity as
Member of the State Board of
Education; AUSTIN FLOYD, In
Official Capacity as Member of the
State Board of Education; JULIAN B.
WRIGHT, In Official Capacity as
Member of the State Board of
Education; BRENDA K. VERNON, In
Official Capacity as Member of the
State Board of Education;
2

EARL BOSTICK, SR., In Official

Capacity as Member of the State
Board of Education; MAXIE DUKE,
In Official Capacity as Member of
the State Board of Education;
LAURA M. FLEMING, In Official
Capacity as Member of the State
Board of Education; FRANK M.
HART, In Official Capacity as
Member of the State Board of
Education; BETH PINSON, In Official
Capacity as Member of the State
Board of Education; W. GREGORY
HORTON, In Official Capacity as
Member of the State Board of
Education; ROBERT W. OWEN, In
Official Capacity as Member of the
State Board of Education; RUBY
MATTHEWS, In Official Capacity as
Member of the State Board of
Education; CELIA GETTYS, In Official
Capacity as Member of the State
Board of Education; THOMAS E.
MCINVILLE, In Official Capacity as
Member of the State Board of
Education; DAVID M. BEASLEY, In
His Official Capacity as Governor
of the State of South Carolina;
BARBARA S. NIELSEN, In Her Official
Capacity as State Superintendent of
Education for the State of South
Carolina,
Defendants-Appellants,
and
3

DAVID M. BEASLEY, In His Official

Capacity as Chairman of the State
Budget and Control Board; SOUTH
CAROLINA BUDGET AND CONTROL
BOARD; GRADY L. PATTERSON, JR., In
Official Capacity as Member of the
State Budget and Control Board for
the State of South Carolina;
EARLE E. MORRIS, JR., In Official
Capacity as Member of the State
Budget and Control Board for the
State of South Carolina; JAMES M.
WADDELL, JR., In Official Capacity
as Member of the State Budget and
Control Board for the State of
South Carolina; WILLIAM D. BOAN,
In Official Capacity as Member of
the State Budget and Control Board
for the State of South Carolina,
Defendants.
4

THEODORE WHITMORE STANLEY;

KEVIN BARBER, minor, by his father
and next friend Jesse Barber;
PATRICK BARBER, minor, by his
father and next friend Jesse Barber;
BRYAN BARBER, minor, by his father
and next friend Jesse Barber;
LURLEAN BESS MACK, minor, by
J. W. Mack, her grandfather and
next friend; BRIAN FRANKLIN, minor,
by his mother and next friend Joyce
No. 95-1828
Franklin; JAY FRANKLIN, minor, by
his mother and next friend Joyce
Franklin; UNITED STATES OF
AMERICA,
Plaintiffs,
v.
DARLINGTON COUNTY SCHOOL
DISTRICT, a public body corporate,
Defendant-Appellant,
v.
5

THE STATE OF SOUTH CAROLINA; THE

DEPARTMENT OF EDUCATION FOR THE
STATE OF SOUTH CAROLINA; THE
BOARD OF EDUCATION FOR THE
STATE OF SOUTH CAROLINA;
WILLIAM P. BECKHAM, III, In
Official Capacity as Member of the
State Board of Education;
SAMUEL M. GREER, In Official
Capacity as Member of the State
Board of Education; JOSEPH PEELER
STABLER, Colonel, In Official
Capacity as Member of the State
Board of Education; CLEVELAND
SELLARS, In Official Capacity as
Member of the State Board of
Education; AUSTIN FLOYD, In
Official Capacity as Member of the
State Board of Education; JULIAN B.
WRIGHT, In Official Capacity as
Member of the State Board of
Education; BRENDA K. VERNON, In
Official Capacity as Member of the
State Board of Education;
6

EARL BOSTICK, SR., In Official

Capacity as Member of the State
Board of Education; MAXIE DUKE,
In Official Capacity as Member of
the State Board of Education;
LAURA M. FLEMING, In Official
Capacity as Member of the State
Board of Education; FRANK M.
HART, In Official Capacity as
Member of the State Board of
Education; BETH PINSON, In Official
Capacity as Member of the State
Board of Education; W. GREGORY
HORTON, In Official Capacity as
Member of the State Board of
Education; ROBERT W. OWEN, In
Official Capacity as Member of the
State Board of Education; RUBY
MATTHEWS, In Official Capacity as
Member of the State Board of
Education; CELIA GETTYS, In Official
Capacity as Member of the State
Board of Education; THOMAS E.
MCINVILLE, In Official Capacity as
Member of the State Board of
Education; DAVID M. BEASLEY, In
His Official Capacity as Governor
of the State of South Carolina;
BARBARA S. NIELSEN, In Her Official
Capacity as State Superintendent of
Education for the State of South
Carolina,
Defendants-Appellees,
and
7

DAVID M. BEASLEY, In His Official

Capacity as Chairman of the State
Budget and Control Board; SOUTH
CAROLINA BUDGET AND CONTROL
BOARD; GRADY L. PATTERSON, JR., In
Official Capacity as Member of the
State Budget and Control Board for
the State of South Carolina;
EARLE E. MORRIS, JR., In Official
Capacity as Member of the State
Budget and Control Board for the
State of South Carolina; JAMES M.
WADDELL, JR., In Official Capacity
as Member of the State Budget and
Control Board for the State of
South Carolina; WILLIAM D. BOAN,
In Official Capacity as Member of
the State Budget and Control Board
for the State of South Carolina,
Defendants.
Appeals from the United States District Court
for the District of South Carolina, at Florence.
Cameron M. Currie, District Judge
(CA-62-7749-4-22)
Argued: December 6, 1995
Decided: May 28, 1996
Before WIDENER and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Reversed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Widener and Senior Judge Butzner joined.
_________________________________________________________________
8

COUNSEL
ARGUED: James Emory Smith, Jr., Assistant Deputy Attorney General, Columbia, South Carolina, for Appellants. Alfred A. Lindseth,
SUTHERLAND, ASBILL & BRENNAN, Atlanta, Georgia, for
Appellee. ON BRIEF: Charles Molony Condon, Attorney General,
Treva G. Ashworth, Deputy Attorney General, Columbia, South Carolina; George C. Leventis, General Counsel, STATE DEPARTMENT
OF EDUCATION, Columbia, South Carolina, for Appellants.
John M. Milling, Darlington, South Carolina, for Appellee.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
In 1962, seven black students filed this class action on behalf of all
black students in Darlington County, South Carolina, against the Darlington County School District to compel desegregation of the county's public schools. The case was initially resolved in 1970 by the
district court's entry of an order mandating implementation of a plan
to desegregate the School District. The court retained jurisdiction to
oversee the plan's implementation.
After the United States intervened on behalf of the plaintiffs in
1990, contending that the School District was violating the 1970
order, the School District sought to join the State of South Carolina
as an additional defendant. The School District demanded that the
State "be adjudged jointly and severally liable" with it for "any lingering effects of the former dual school system in Darlington County."
The district court granted the School District's motion to join the
State and, following trial, ordered the State to participate jointly with
the School District in desegregating the schools and to "pay 15% of
the capital costs and operating expenses of the desegregation remedies" entered in the case. On appeal, the State contends that it is not
liable to the School District for any contribution, and on its crossappeal, the School District contends that the State should contribute
at least 50% to the desegregation costs.
9

Because neither the original plaintiffs nor the United States ever
sued the State of South Carolina, we conclude that the only claim
made against the State in this case is one for contribution by the
School District. And because a federal court has no jurisdiction to
adjudicate a contribution claim filed against a state by one of its political subdivisions, we reverse the district court's imposition of liability
on the State of South Carolina to pay for any of the remedial costs.
I
The original plaintiffs filed this class action in May 1962 against
the Darlington County School District and its trustees, the Darlington
County Board of Education, and the superintendent of the School District (collectively, the "School District"), challenging the constitutionality of the School District's racially segregated educational system.
In July 1964, the district court enjoined the School District from discriminating on the basis of race and ordered implementation of a plan.
Following further litigation over the adequacy of the initial plan, the
issue was resolved by entry of an order dated February 5, 1970, which
was modified in 1973 (as modified, the "1970 Order"), finding the
county's dual system in violation of the Constitution and ordering
implementation of a revised desegregation plan. Under the 1970
Order, the School District was required to reassign students and faculty, to make changes in curriculum and vocational programs, to pair
schools, and to upgrade facilities and services. The district court
retained jurisdiction to oversee the plan's implementation.
In 1983, the plaintiffs challenged the adequacy of the School District's implementation efforts, but withdrew their challenge in 1985
when they concluded that they could not prove noncompliance. In
1990, however, the United States moved to intervene as an additional
plaintiff to challenge the School District's compliance with the 1970
Order, and the district court granted that motion in August 1991. The
United States alleged in its "complaint-in-intervention" that
"[n]ineteen years after implementation of the 1970 Court Order, the
schools in the [School District] remain segregated and racially identifiable." It alleged that the School District was pursuing policies and
practices designed to frustrate implementation of the 1970 Order,
including: assigning students to schools and hiring principals and faculty in a manner that perpetuated segregation, failing to enforce stu10

dents' attendance at schools in their zones of residence, refusing to

pair schools to promote integration, offering an inferior curriculum
and school facility at the predominantly black Mayo High School, and
failing to implement a majority-to-minority student transfer program.
The United States requested an injunction prohibiting racial discrimination in the operation of the Darlington County public schools and
ordering implementation of a plan that would eliminate the vestiges
of segregation in the county school system.
Eighteen months after the district court permitted the United States
to intervene against the School District, the School District filed a
motion under Federal Rule of Civil Procedure 19(a) to join the State
of South Carolina and its agencies and personnel involved in public
education (collectively, the "State") as additional defendants. It also
sought to file a "cross-claim" against the State. In its motion to join
the State, the School District contended that without the State's joinder, "complete relief cannot be accorded among those already parties
to this action." And it argued that the State,"which created the dual
school system in the first place, has the same affirmative obligation
as the Local District to eliminate any remaining vestiges."
The United States opposed the School District's motion on the
ground that the School District "has failed to provide a single example
of how the State has impeded the District's compliance with this
Court's order and federal law since 1970." The plaintiffs expressed
both uncertainty about the State's responsibility for the School District's failure to comply with the 1970 Order and concern that joining
the State would delay resolution of the case.
Notwithstanding the plaintiffs' reservations, the district court
granted the School District's motion to join the State as a codefendant and permitted the School District to file a "cross-claim"
against the State. The court explained, "[I]f we are required to impose
a remedy to correct the alleged racial discrimination, it is necessary
to have all the potential players before this court." While the School
District served its "cross-claim" on the State, neither the original
plaintiffs nor the United States amended its complaint to name the
State as a defendant or to demand relief from the State.
In May 1994, the original plaintiffs, the United States, and the
School District reached agreement on the terms of a consent order,
11

which the district court approved and entered (the"1994 Consent

Order"), to implement the 1970 Order and to desegregate the Darlington County school system. In the 1994 Consent Order, the School
District stipulated that it had "not fully complied with the [1970]
desegregation order and federal law in this case, and that vestiges of
the prior dual system remain in the Darlington County School District." The order requires the School District to alter its student assignment practices; to assign principals on a nondiscriminatory basis; to
allocate faculty and staff to achieve a racial composition at each
school within ten percentage points of the district-wide average; to
provide public transportation on a nondiscriminatory basis; to modify
the curriculum to enhance the transition to desegregated schools; and
to offer extracurricular activities on a nondiscriminatory basis. The
order also includes a timetable for implementation and imposes
reporting requirements. The State did not participate in the settlement
negotiations and is not a party to the 1994 Consent Order.
The School District's case against the State proceeded to trial, after
which the district court concluded, in findings of fact, conclusions of
law, and an order dated March 1, 1995, that "the State has done little
or nothing . . . to eliminate the vestiges of the dual school system created and perpetuated by them, despite an affirmative duty to do so."
The court detailed how, during the 1950's and 1960's, the State created regulatory mechanisms for constructing a dual school system and
resisted implementing changes required by Brown v. Board of
Education, 347 U.S. 483 (1954). The court observed that although the
State's resistance to school desegregation "had largely ceased by the
early 1970's," State officials "did little after 1970 to eliminate the
remaining vestiges of the former dual school system." The State
"never promoted desegregation with anything approaching the degree
of energy and involvement it brought to the mission of preserving
segregation." Accordingly, the district court concluded that "the State
must participate with the [School] District in remedying the vestiges
of segregation."
The district court's March 1, 1995, order directed the State to "participate jointly with the District in the desegregation remedies set
forth in the [1994] Consent Order and this Order," to "provide all
transportation services and facilities necessary to accomplish the
desegregation measures in the [1994] Consent Order and this Order,"
12

and to pay "15% of the capital costs and operating expenses of the
desegregation remedies contained in the [1994] Consent Order and
this Order." The order also required that the State Department of Education make available the services of its consultants and staff to help
the School District implement a magnet program at Mayo High
School.
On appeal, the State challenges the district court's order insofar as
it imposes liability on the State for 15% of the costs of the relief
granted to the plaintiffs on their claims against the School District.
And on its cross-appeal, the School District contends that the district
court erred in failing to require the State to bear a greater percentage
of the desegregation costs.
II
The State contends that the School District lacks standing to sue
the State because the School District is a political subdivision of the
State and that the State's allocation of governmental expenses is an
internal issue of "governmental structuring and money." Moreover,
the State argues, the School District cannot represent students who are
already parties to this action. The State argues further that because the
School District has had full power and authority to desegregate the
Darlington County public schools since at least 1970, any vestiges of
segregation are attributable solely to the School District's failure to
take remedial actions. Finally, the State advances an Eleventh
Amendment immunity defense on the ground that the School District
"essentially seeks damages."
The School District, on the other hand, contends that since at least
1970 the State has had an affirmative duty to desegregate the Darlington County public schools and that the State could not discharge that
duty by merely abandoning its prior discrimination and delegating to
a subordinate entity the powers necessary to achieve desegregation.
While the School District acknowledges that the 1970 Order imposed
upon it complete responsibility for desegregating the Darlington
County public schools, it argues that the State's failure to take an
active role in dismantling the dual system left the State's continuing
obligations unfulfilled. The School District maintains further that
under Milliken v. Bradley, 433 U.S. 267 (1977), the district court had
13

the equitable power to apportion the costs of desegregation between

it and the State as joint tortfeasors. Indeed, the School District contends in its cross-appeal that rather than the 15% that the district court
assigned to the State in its March 1, 1995, order, the State should bear
at least 50% of the costs of desegregating the Darlington County public schools. In response to the State's Eleventh Amendment defense,
the School District insists that it seeks only "prospective injunctive
relief."
At the outset of our discussion of the issues presented by this
appeal, it is important to recognize that illegal segregation was for
many years the policy of both the State of South Carolina and the
Darlington County School District. All parties to this litigation
acknowledge that fact.
We also recognize that both the State and the School District could
have been sued to remedy the constitutional violations. Because the
Fourteenth Amendment imposes direct responsibility on a state to
ensure equal protection of the laws "to any person within its jurisdiction," a state's delegation to a political subdivision of the power necessary to remedy the constitutional violation does not absolve the
state of its responsibility to ensure that the violation is remedied. Even
if a state gives its local school districts the power and means to remedy segregation, it can still be sued by the students in those districts
for its failure to take steps to dismantle a dual educational system that
it created. See Missouri v. Jenkins, 495 U.S. 33, 37 (1990); Milliken,
433 U.S. at 288-91. Interested plaintiffs may sue both a state and its
local school districts for violations of the Fourteenth Amendment, and
a federal district court, presented with such a case, has the equitable
power to apportion between the state and the local school districts liability for remedying those violations. See Milliken, 433 U.S. at 289
(decree to share future costs of desegregation fits within "prospectivecompliance exception" to Eleventh Amendment); see also Missouri,
495 U.S. at 54 ( 1983 authorizes courts to apportion costs of complying with desegregation remedy among state and local tortfeasors).
Thus, if after joining the State as an additional defendant, the original plaintiffs or the United States had asserted claims against the
State, established precedent would have permitted the School District
to benefit from the possibility that the district court would apportion
14

the costs of future compliance between the State and the School District. And the State's Eleventh Amendment defense, its delegation
defense, and its argument that it was not the principal tortfeasor could
properly have been rejected under Milliken and its progeny.
But neither the original plaintiffs nor the United States asserted
claims against the State, and therefore this case does not fall under the
Milliken line of cases. When the original plaintiffs filed suit in 1962,
they named only the School District as defendant; they did not sue the
State. Moreover, the 1970 Order, which required implementation of
a specific plan to end segregation in Darlington County, was not
directed at the State. The Order imposed obligations only on the
School District. And over the years following entry of the 1970
Order, there was never any indication that the School District could
not comply with that order. In fact, the district court stated in its 1995
Order that it found no reason why the School District did not satisfy
the 1970 Order.
And when the United States intervened in 1990, it did so, not to
challenge the adequacy of the 1970 Order--an order which the original plaintiffs, the School District, and the district court had already
deemed capable of affording complete relief--but solely to redress
the School District's noncompliance with that order. Therefore, the
United States did not name the State as an additional defendant.
The plaintiffs' subsequent actions confirm that their decision not to
sue the State was not inadvertent. When the School District filed its
motion to join the State as an additional defendant, the original plaintiffs and the United States opposed the motion. The United States
argued, "[t]he [School] District has failed to provide a single example
of how the State has impeded the district's compliance with the
court's order and federal law since 1970." Moreover, after the district
court granted the School District's motion to join the State as a defendant, neither the original plaintiffs nor the United States amended
their complaints to name the State as a defendant. Instead, they settled
their claims with a Consent Order, obtaining complete redress from
the School District only. Furthermore, the plaintiffs did not participate
in the trial of the School District's "cross-claim" against the State.
They expressed no concern as to how the costs of desegregation
required by the 1994 Consent Order would be allocated between the
15

State and the School District. Finally, when the State and the School
District noticed their appeals to this court, the United States moved
to be dismissed from the proceedings. In its motion, the United States
characterized these appeals as focusing solely on the allocation
between the State and the School District of the responsibility for
desegregation and argued, "Since the only issue now raised by the
school district's cross-appeal concerns its cross-claim against the
State, and since the appeal thus involves no issues arising from the
United States' litigation against the school district, the United States
should be dismissed as a party to the appeal." We granted the request
and dismissed both the original plaintiffs and the United States from
these appeals.
Recognizing that the plaintiffs did not assert claims against the
State and seeking to compel the State to participate in the costs of
remedying segregation in Darlington County, the School District filed
a motion to add the State as defendant under Federal Rule of Civil
Procedure 19(a) and to file its "cross-claim" against the State. In its
motion, the School District expressed its purpose of forcing the State
to become a defendant directly liable on the plaintiff's claims and
stated that it was not seeking contribution by way of a third-party
claim against the State.
The federal rules, however, do not authorize a defendant to compel
an unwilling plaintiff to assert a claim against a second defendant. See
Muir v. United States Steel Corp., 41 F.R.D. 428, 430 (E.D. Pa.
1967). The most that the defendant can do is argue that complete
relief cannot be afforded without joinder of the second defendant. See
Fed. R. Civ. P. 19(a). If the court agrees, the plaintiff is given the
choice of amending its complaint to name the "indispensable" second
defendant or suffering dismissal of the complaint. See Fed. R. Civ. P.
19(b); Window Glass Cutters League v. American St. Gobain Corp.,
428 F.2d 353 (3d Cir. 1970) (upholding dismissal where plaintiff
refused to join indispensable party); Muir, id.
The School District contends that the district court found that the
State was an indispensable party by granting the School District's
Rule 19(a) motion. If, however, the district court did find that the
State was an indispensable party and the plaintiffs refused to amend
their complaints to add the State, the district court would have been
16

forced to dismiss the case. See Fed. R. Civ. P. 19(b). But the district
court did not view the case that way.
When the district court granted the School District's motion under
Federal Rule of Civil Procedure 19(a), it did so for two reasons. First,
it granted the motion to cover the possibility that it would need the
State as a party to effect a remedy beyond that already granted by the
1970 Order. The court stated, "[I]f we are required to impose a remedy to correct the alleged racial discrimination, it is necessary to have
all the potential players before this court." The court could not, however, make the finding that complete relief could not be effected
"among those already parties," see Fed. R. Civ. P. 19(a)(1), because
the plaintiffs had already received complete relief in the 1970 Order
to which the State was not a party. Second, the court granted the Rule
19(a) motion on the erroneous belief that the need to afford relief to
the School District on its "cross-claim" against the State supported
Rule 19 joinder:
The cross-claim will seek an order that, in the event the
[School District] is adjudged liable and ordered to remedy
the alleged racial discrimination, this court should adjudge
the State jointly and severally liable thereby requiring the
State to participate in whatever action is necessary to remedy the discrimination.
***
This court is unable at this time to determine if the claims
against the State have merit; however, other states in similar
circumstances to South Carolina have been defendants in
recent school desegregation lawsuits.
Thus, despite the district court's grant of the School District's selfstyled Rule 19(a) motion, it apparently treated the School District's
motion as a Rule 20 motion for permissive joinder or a request for
leave to file a third-party complaint against the State under Rule 14.
The district judge who later tried the case likewise interpreted the
Rule 19(a) order entered in this case as one allowing the School Dis17

trict to assert a third-party claim for contribution. She stated at a hearing in April 1994:
Now, there are a lot of references throughout the case to this
cross-claim. And I'll just tell you that I don't believe it's a
cross-claim. I believe it's a third-party complaint. But it's
called a cross-claim in here.
As I understand it, the State defendants were not defendants initially. They were only brought in by virtue of a
claim over by a defendant making that a third-party claim
rather than a cross-claim.
From all of these circumstances, we conclude that, in granting the
School District's motion to join the State, the district court simply
considered it prudent, but not necessary, to join the State so that it
might fashion appropriate equitable relief. Indeed, the court never
indicated that it expected the plaintiffs to amend their complaints, nor
compelled the plaintiffs to assert claims against the State. Certainly,
the School District could not require the unwilling plaintiffs to sue the
State. Cf. Aiken County v. BSP Div. of Envirotech Corp., 866 F.2d
661, 668-69 (4th Cir. 1989) (district court abused its discretion in
amending plaintiff's complaint sua sponte to include direct claim
against third-party defendant when plaintiff never asserted such
claim). We also conclude that the district court intended to facilitate
the School District's effort to assert a claim of its own against the
State.
Because, in the end, the plaintiffs never stated a claim against the
State, the School District's "cross-claim" can only be interpreted as
a traditional claim for contribution. And although the School District
denominated its pleading against the State a "cross-claim," it is more
accurately denominated a third-party claim. Compare Fed. R. Civ. P.
13(g) ("Cross-Claim Against Co Party") and Fed. R. Civ. P. 13(h)
("Joinder of Additional Parties") with Fed. R. Civ. P. 14 ("Third-Party
Practice"); see also 6 Wright, Miller, Kane, Federal Practice and
Procedure 1434-35 (2d ed. 1990).
In an effort to overcome these procedural difficulties and to impose
on the State direct liability to the individual plaintiffs, the School Dis18

trict purported to sue the State, not only on its own behalf, but also
"on behalf of the black and white children residing in the Local District." But the School District never explained how it could represent
a class, the victimized portion of which was already litigating against
the School District in the same action. The School District would
have been required to promote the very claim it was resisting. Such
a conflict is disqualifying. Cf. Bradley v. School Bd., 338 F. Supp. 67,
230 (E.D. Va. 1972) ("Obviously in some cases school boards resist
and in others they press for relief by means of desegregation. In the
latter case it is much the preferable course to preserve the adversary
context . . . by granting a school board standing, if no plaintiff, to sue
on behalf of its students"), rev'd on other grounds, 462 F.2d 1058
(4th Cir. 1972), aff'd sub nom. School Bd. v. State Bd. of Educ., 412
U.S. 92 (1973).1 The district court's conclusion that the School District was entitled to sue the State "on behalf of the children in the district" does not compel a different result, because the district court's
conclusion is consistent with its characterization of the School District's "cross-claim" as a third-party claim for contribution, a claim on
which the School District shares the interests of its constituent taxpayers.
In sum, had the original plaintiffs or the United States prosecuted
a claim against the State, the district court could have exercised its
equitable power to apportion its prospective remedy between the
School District and the State. Because neither the plaintiffs nor the
United States pursued any claim against the State, however, the district court could not apportion the costs of its remedy between the
School District and the State. Any apportionment of costs in this case
can be attributed only to the School District's"cross-claim" against
the State for contribution, to which we now turn.
_________________________________________________________________
1 For the same reason that the School District may not represent its
school children for substantive constitutional remedies, it may not represent them for alleged unlawful discrimination under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, and the Equal Educational
Opportunities Act of 1974, 20 U.S.C. 1701 et seq.
19

III
The School District bases its contribution claim against the State
on the contention that both the State and the School District were constitutional tortfeasors. In its prayer for relief, the School District
requested that the "State Defendants jointly and severally be adjudged
liable to remedy any lingering effects of the former dual school system in Darlington County which the Court may find in accordance
with the requirements of the Constitution and the laws of the United
States."
The School District's contribution claim raises significant state law
issues, including: whether a state has a duty of contribution to a political subdivision that it created and can abolish; whether liability for
contribution may be imposed on a passive tortfeasor where the principal cause of injury is the active conduct of the party seeking contribution; whether a political subdivision of a state can sue the state against
its will; and whether any court can allocate legislatively appropriated
funds among a state's departments and political subdivisions. As
complex and intriguing as these questions may be, we can find no
authority that empowers a federal court to resolve them.
While the Fourteenth Amendment empowers federal courts to
address a state's equal protection violations, it does not provide any
basis for a contribution claim by a political subdivision against the
state that created it. It 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.
A long recognized attribute of state sovereignty is the state's power
to create political subdivisions as a convenience in exercising its
power. And just as a state may create political subdivisions, it may
also abolish them or, more drastically, determine the extent of their
financing with public tax dollars.
The State, therefore, at its pleasure may modify or withdraw
all [of a municipality's] powers, may take without compensation such property, hold it itself, or vest it in other agen20

cies, expand or contract the territorial area, unite the whole

or a part of it with another municipality, repeal the charter
and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of
the citizens, or even against their protest. In all these
respects the State is supreme . . . .
City of Trenton v. New Jersey, 262 U.S. 182, 186 (1923) (quoting
Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79 (1907)). A state's
sovereign powers to create, abolish, and fund political subdivisions
are not constrained by the Fourteenth Amendment; the political subdivision is not a "person" protected by the Amendment. As the Supreme
Court explained in City of Trenton, "The power of the State, unrestrained by the . . . Fourteenth Amendment, over the rights and property of [political subdivisions] held and used for `governmental
purposes' cannot be questioned." Id. at 188; see also Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 638 (1819);
Harris v. Angelina County, 31 F.3d 331, 340 (5th Cir. 1994) ("[W]e
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 Bd. of
Educ., 836 F.2d 986, 998 (6th Cir. 1987) ("Federal courts may not be
called upon, in the first instance, `to adjudicate what is essentially an
internal dispute between two local governmental entities, one of
which is asserting unconstitutional conduct on the part of the other'"
(quoting South Macomb Disposal Auth. v. Township of Washington,
790 F.2d 500, 507 n.1 (6th Cir. 1986) (Engel, J., concurring)), cert.
denied, 487 U.S. 1206 (1988).
The plaintiffs' interest in this case was to remedy the unconstitutional, racially discriminatory policies of the State and its political
subdivisions in creating and maintaining a dual system of public education in Darlington County. To that end, they could have sued the
State and any responsible agencies of the State. And a federal court,
in the exercise of its equitable powers, could have remedied the violations by allocating among the defendants in any proportion the prospective costs of implementing its injunctive decree. But when
interested persons and the federal government chose to sue only the
School District and, through that process, obtained complete relief,
the plaintiffs' interest in this case was satisfied. Thereafter, no federal
21

court had jurisdiction to involve itself further in the internal affairs of

state government and apportion the costs of providing the ordered
relief among the state's departments and political subdivisions.2 Cf.
Hayward v. Clay, 573 F.2d 187, 190 (4th Cir.), cert. denied, 439 U.S.
959 (1978) (while state's power over its municipal corporations may
be nearly absolute, federal courts may adjudicate claim that state's
exercise of power violates the Equal Protection Clause).
Accordingly, insofar as it imposes liability on the State of South
Carolina to pay for part of the desegregation remedies imposed by the
district court, the judgment of the district court is reversed. Otherwise,
we do not disturb the judgment.
IT IS SO ORDERED.
_________________________________________________________________
2 While this rationale might not, per se, preclude a political subdivision
from suing a state under Title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d, for its discriminatory allocation of federal funds, we
hold that the statute in any event provides no such authorization.
Nowhere in Title VI do we find any indication of a congressional intent
to authorize a political subdivision of a state to sue the state itself. See
United States v. Alabama, 791 F.2d 1450, 1456 (11th Cir. 1986), cert.
denied, 479 U.S. 1085 (1987). But see Hudson Valley Freedom Theater,
Inc. v. Heimbach, 671 F.2d 702 (2d Cir.) (nonprofit corporation may sue
political subdivision of state under Title VI), cert. denied, 459 U.S. 857
(1982).
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