                                                       [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                       MARCH 28, 2008
                                                     THOMAS K. KAHN
                               No. 07-10235
                                                          CLERK
                          Non-Argument Calendar
                        ________________________

                    D. C. Docket No. 83-01676-CV-HLM

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,
JOHN F. KNIGHT, JR.,
ALEASE S. SIMS,


                                                   Plaintiffs-Appellees,

GEORGE MUNCHUS,
WILLIE STRAIN, on behalf of themselves
as class members,


                                                   Plaintiffs-Appellants,

                                  versus

STATE OF ALABAMA,
ALABAMA A & M UNIVERSITY,
ALABAMA STATE BOARD OF EDUCATION,
AUBURN UNIVERSITY,
BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA,
ALABAMA COMMISSION ON HIGHER EDUCATION,
ALABAMA PUBLIC SCHOOL AND COLLEGE AUTHORITY,
BOB RILEY, Governor,
JIM MAIN, Director of Finance,
et al.,

                                                            Defendants-Appellees.

                            ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                          _________________________

                                  (March 28, 2008)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

      This appeal arises from extended litigation regarding a desegregation lawsuit

involving the public universities in Alabama and a plaintiff class of “all black

citizens of Alabama and all past, present and future students, faculty, staff and

administrators of Alabama State University and Alabama A & M University”

(“Knight-Sims plaintiffs”). Munchus and Strain, proceeding pro se on behalf of

themselves as class members, appeal the district court’s approval of ten settlement

agreements ending that litigation.

                                Prudential Standing

      The State of Alabama and the State Board of Education Defendants (“SBE



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Defendants”) argue that Munchus and Strain lack prudential standing under Devlin

v. Scardeletti, 536 U.S. 1, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002), because they fail

to assert any individual right as class members or any personal stake in the

outcome of the class action settlement or appeal.

       Non-named class members who object in a timely manner to approval of a

settlement in a class action may appeal from the final judgment approving the

settlement. Devlin, 536 U.S. at 14, 122 S.Ct. at 2113; AAL High Yield Bond Fund

v. Deloitte & Touche LLP, 361 F.3d 1305, 1309 (11th Cir. 2004). “[A]ppeals by

nonnamed class members [do not] raise the sorts of concerns that are ordinarily

addressed as a matter of prudential standing.” Devlin, 536 U.S. at 7, 122 S.Ct. at

2009. As the Supreme Court stated in Devlin:

      Because petitioner is a member of the class bound by the judgment,
      there is no question that he satisfies [the prudential standing]
      requirements. The legal rights he seeks to raise are his own, he
      belongs to a discrete class of interested parties, and his complaint
      clearly falls within the zone of interests of the requirement that a
      settlement be fair to all class members. Fed. Rule Civ. Proc. 23(e).

Id.

      Munchus and Strain are nonnamed class members who filed timely

objections to the settlement agreements. Therefore, they satisfy the prudential

standing requirements.




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                      Approval of the Settlement Agreements

      We review for abuse of discretion a district court’s approval of a class action

settlement agreement. Leverso v. SouthTrust Bank of Ala., 18 F.3d 1527, 1531

(11th Cir. 1994). Our limited review reflects a strong judicial policy favoring the

resolution of disputes through settlement. United States v. City of Miami, 614

F.2d 1322 (5th Cir. 1980). We review for clear error a district court’s finding that,

under United States v. Fordice, 505 U.S. 717, 112 S.Ct. 2727, 120 L.Ed.2d 575

(1992), an education system is no longer in violation of the Constitution and is

therefore unitary. NAACP, Jacksonville Branch v. Duval County School, 273 F.3d

960, 966 (11th Cir. 2001).

                      Legal and Economic Interests of the Class

      Munchus and Strain argue that the district court applied an incorrect legal

standard in determining whether to approve the settlement agreements, and, in

doing so, the district court failed to “fairly and adequately represent the legal and

economic interests of the class.” They specifically assert that the settlement is

unfair and inadequate in two ways: (1) funding for historically black colleges and

universities is contingent upon legislative approval; and (2) the court is without

jurisdiction to enforce the agreements. They argue that the mediation provisions of

the settlement agreements “require[] the class to engage in the legal and economic



                                           4
burden of [enforcing] the settlements.”

      They further argue that the district court should have applied the six-factor

approach in Ayers v. Thompson, 358 F.3d 356 (5th Cir. 2002) (persuasive

authority). Munchus and Strain appear to argue that not only is Ayers the proper

legal standard, but that the substance of the settlement agreements in this case

should include certain key provisions of the settlement agreement in Ayers. They

point to the following features of the Ayers settlement agreement: (1) state fund

appropriations were approved by the state legislature prior to approval of the

settlement; (2) the notice to class members was widely circulated for several

months; (3) the fairness hearing extended over three days, during which the court

received evidence, rather than relied upon reports; (4) the objectors were allowed

an opportunity to participate in the fairness hearing; (5) the district court retained

jurisdiction; and (6) the remedial standard was the elimination of vestiges of

segregation, not the promotion of diversity. With regard to this last feature,

Munchus and Strain argue that “the class is entitled to more than diversity

programs and measurements for which defendants will pay no penalty for

violations or non-achievement.”

      Munchus and Strain also argue that “[t]he district court did not give

adequate consideration to whether this settlement is a mantle of oppression that



                                            5
unfairly and unreasonably impinges on the rights and interests of the absent class

members.” They contend that the court-ordered notice to class members—once a

week for two weeks in designated newspapers in Alabama—was insufficient to

satisfy the legal and economic interest of absent class members. They note that the

two weeks notice did not provide absent class members time “to obtain appropriate

legal review” of the settlement agreements and that “[t]he fairness hearing was

scheduled within one week of the time to file objections.”

      Federal Rule of Civil Procedure 23(e) requires judicial approval of all class

settlements. Fed.R.Civ.P. 23(e)(1)(A). In that approval process, absent class

members are afforded both substantive and procedural protections. Holmes v.

Continental Can Co., 706 F.2d 1144, 1147 (11th Cir. 1983). A “[d]istrict [c]ourt

must find that the settlement is fair, adequate and reasonable and is not the product

of collusion between the parties.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.

1977); see also Fed.R.Civ.P. 23(e)(1)(C). In evaluating settlement proposals, six

factors are generally considered: (1) whether the settlement was a product of fraud

or collusion; (2) the complexity, expense, and likely duration of the litigation; (3)

the stage of the proceedings and the amount of discovery completed; (4) the factual

and legal obstacles prevailing on the merits; (5) the possible range of recovery and

the certainty of damages; and (6) the respective opinions of the participants,



                                           6
including class counsel, class representative, and the absent class members. See

Cotton, 559 F.2d at 1330-31. Accord Ayers v. Thompson, 358 F.3d 356, 369 (5th

Cir. 2004). Additionally, “individual class members whose interests may be

compromised in the settlement process” are accorded special procedural

protections, including notice. Holmes, 706 F.2d at 1147; Pettway v. Am. Cast Iron

Pipe Co., 576 F.2d 1157, 1219 (5th Cir. 1978).

                                        Notice

      As a threshold matter, there is an issue as to whether Munchus and Strain

failed to preserve the issue of notice by not submitting a written objection to the

district court. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,

1331 (11th Cir. 2004) (holding that, generally, we will not consider an issue not

raised in the district court.). In their brief, Munchus and Strain frame the notice

issue as one regarding the legal and economic interests of the class. Their

objections below do assert that “[t]he proposed settlement agreement does not

fairly and adequately represent the legal and economic interests of the members of

the class.” Construing the objections and brief of Munchus and Strain, who are

proceeding pro se, liberally, Munchus and Strain appear to understand the notice

requirement as part of this broader objection regarding the interests of the class.

See Lorisme v. I.N.S., 129 F.3d 1441, 1444 n.3 (11th Cir. 1997) (noting that we



                                           7
liberally construe pro se briefs). Therefore, they have not failed to preserve the

issue for appeal. Regardless, the district court did not abuse its discretion in

finding that notice was sufficient, as discussed below.

      Rule 23(e) requires that the district court “direct notice in a reasonable

manner to all class members who would be bound by a proposed settlement.”

Fed.R.Civ.P. 23(e)(1)(B). We have not determined what constitutes reasonable

notice of a proposed settlement agreement under Rule 23(e). Those of our sister

circuits that have addressed the issue have required that the notice apprise class

members of the terms of the settlement agreement in a manner that allows class

members to make their own determination regarding whether the settlement serves

their interests. See Int’l Union, United Auto., Aerospace, and Agric. Implement

Workers of Am. v. Gen. Motors Corp., 497 F.3d 617, 630 (6th Cir. 2007)

(persuasive authority) (explaining that notice must “fairly apprise the prospective

members of the class of the terms of the proposed settlement so that class members

may come to their own conclusions about whether the settlement serves their

interests.”) (internal quotation marks omitted).

      “In addition to the requirements of Rule 23, the Constitution's Due Process

Clause also guarantees unnamed class members the right to notice of . . .

settlement.” DeJulius v. New England Health Care Employees Pension Fund, 429



                                           8
F.3d 935, 943-44 (10th Cir. 2005) (persuasive authority). Accord Adams v.

Southern Farm Bureau Life Ins. Co., 493 F.3d 1276, 1285 (11th Cir. 2007) (“Class

actions, as other cases, are subject to the requirements of due process.”) (internal

quotation marks omitted). In the context of notice for class certification and class

member opt-out, we have stated that “it is not only necessary that the notice reach

the parties affected but that it convey the required information.” Adams, 493 F.3d

at 1285-86 (internal quotation marks omitted). Likewise, we have stated that, “[i]n

reviewing the class notice to determine whether it satisfies the[] requirements [of

due process], we look solely to the language of the notices and the manner of their

distribution.” Id. at 1286.

      The district court did not abuse its discretion in finding that notice was

sufficient. The content of the notice apprised the class members that the settlement

agreement with the State was available for their review on the websites of the

States of Alabama, the Governor, and the Alabama Commission on Higher

Education and that the settlement agreement with each of the defendant

universities was available on the university’s website. It also apprised the class

members that they could view the settlement agreements on the plaintiff’s website

and at the main library of every state university in Alabama. The notice appeared

in newspapers in the geographic areas of the universities involved in the suit and in



                                           9
the north, south, east and west of the state. The notice was published in ten

newspapers, twice in each, at week intervals. Regarding the amount of time the

notice was published prior to the deadline for objections and the fairness hearing,

the district court did not abuse its discretion in providing for two weeks’ notice

before objections were due. Although Munchus and Strain argue that two weeks’

notice did not allow class members adequate time to secure counsel for filing

objections, Rule 23 and due process only require that class members are provided

notice of the terms of a settlement agreement in a manner that allows them to make

a determination about whether or not the settlement serves their interests. Nothing

in Rule 23(e) or its attendant jurisprudence indicates that hiring counsel is

necessary to meet the requirements of Rule 23(e) or due process.

      Fairness, Adequacy, and Reasonableness of the Settlement Agreements

      In approving a settlement, the trial court must “undertake an analysis of the

facts and the law relevant to the proposed compromise” and “support [its]

conclusions by memorandum opinion or otherwise in the record.” Cotton, 559

F.2d at 1330. “A mere boiler-plate approval phrased in appropriate language but

unsupported by evaluation of the facts or analysis of the law will not suffice.” Id.

(internal quotation marks omitted). We “must have a basis for judging the exercise

of the district judge’s discretion.” Holmes, 706 F.2d at 1147 (quoting Cotton, 559



                                          10
F.2d at 1330) (reversing and remanding where the district court approved a

settlement based upon a deficient record). However, as the former Fifth Circuit

explained, “[d]ifferent problems are posed by class action settlements [than district

court judgments]. Lacking a fully developed evidentiary record, both the trial

court and the appellate court would be incapable of making the independent

assessment of the facts and law required in the adjudicatory context.” Pettway,

576 F.2d at 1169. We explained in Cotton that:

      [i]n determining the fairness, adequacy and reasonableness of the
      proposed compromise, the inquiry should focus upon the terms of the
      settlement. The settlement terms should be compared with the likely
      rewards the class would have received following a successful trial of
      the case . . . Yet, in evaluating the terms of the compromise in relation
      to the likely benefits of a successful trial, the trial judge ought not try
      the case in the settlement hearings.

Cotton, 559 F.2d at 1330. Therefore, “[i]t cannot be overemphasized that neither

the trial court in approving the settlement nor this Court in reviewing that approval

have the right or the duty to reach any ultimate conclusions on the issues of fact

and law which underlie the merits of the dispute.” Id.

      In evaluating whether the settlement agreements in this case were “fair,

adequate, and reasonable,” the district court considered nine factors, which

included the six factors enumerated in the standard asserted by Munchus and Strain

and generally considered in evaluating settlement proposals. Therefore, the district



                                           11
court did not apply an incorrect legal standard, nor did it abuse its discretion in

finding that the settlement agreements were fair, adequate, and reasonable.

                    Fordice: The Vestiges of De Jure Segregation

      Munchus and Strain argue on appeal that the district court abused its

discretion in finding that the vestiges of de jure segregation had been removed

from the Alabama university system to the extent practicable and consistent with

sound educational practices. They assert that the traditionally white universities in

Alabama have not met the standards set forth by the Supreme Court in United

States v. Fordice. They further assert that the district court’s determination that

Alabama’s university system had attained unitary status was unsupported by the

evidence at the fairness hearing and that the record did not show that the vestiges

of racial segregation had been eliminated. They contend that the remaining

vestiges of de jure segregation cannot be remedied through diversity programs, as

outlined in the settlement agreements. Munchus and Strain further contend that

immeasurable “diversity” is an erroneous legal standard in desegregation cases,

and therefore, by applying a diversity standard, the district court abused its

discretion. They note that “[a]ll agreed that the vestiges of racial segregation

continue” and that, even with monitoring and court oversight, Alabama’s

university system failed to comply with the consent decree.



                                           12
      “A State does not discharge its constitutional obligations [to dismantle its

prior dual university system] until it eradicates policies and practices traceable to

its prior de jure dual system that continue to foster segregation.” Fordice, 505 U.S.

at 728, 112 S.Ct. at 2735. “If policies traceable to the de jure system are still in

force and have discriminatory effects, those policies too must be reformed to the

extent practicable and consistent with sound educational practices.” Id. at 729, 112

S.Ct. at 2736.

      A district court “should retain jurisdiction until it is clear that state-imposed

segregation has been completely removed.” Green v. County Sch. Bd. Of New

Kent County, Va., 391 U.S. 430, 439, 88 S.Ct. 1689, 1695 (1968). However,

      The Supreme Court intended [the] federal supervision of local school
      systems to be a temporary measure. Since the legal justification for
      such supervision is a constitutional violation by local authorities, a
      district court must divest itself of jurisdiction when the constitutional
      violation has ceased and when local authorities have operated in
      compliance with a desegregation decree for a reasonable period of
      time.

Lockett v. Bd. of Educ. of Muscogee County Sch. Dist., Ga., 11 F.3d 839, 842

(11th Cir. 1997) (citing Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237,

247, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991)). “To be entitled to the end of

federal court supervision, a formerly dual school system must be able to prove that

it has (1) complied in good faith with the desegregation decree, and (2) eliminated



                                           13
the vestiges of prior de jure segregation to the extent practicable.” NAACP,

Jacksonville Branch v. Duval County School, 273 F.3d 960, 966 (11th Cir. 2001)

(citing Missouri v. Jenkins, 515 U.S. 70, 88, 115 S.Ct. 2038, 132 L.Ed.2d 63

(1995)).

      We have “stress[ed] the temporary nature of federal judicial supervision

over local school systems.” Lee v. Talladega County Bd. of Educ., 963 F.2d 1426,

1430 (11th Cir. 1992). The Supreme Court noted in Freeman that:

      Returning schools to the control of local authorities at the earliest
      practicable date is essential to restore their true accountability in our
      governmental system. When the school district and all state entities
      participating with it in operating the schools make decisions in the
      absence of judicial supervision, they can be held accountable to the
      citizenry, to the political process, and to the courts in the ordinary
      course.

Id. “[T]he ‘end purpose’ of every court that supervises the disestablishment of a

racially dual school system must be to remedy the [constitutional] violation and in

addition to restore state and local authorities to the control of a school system that

is operating in compliance with the Constitution.” Id. (internal quotation marks

omitted).

      To the extent that Munchus and Strain argue that the district court applied

the incorrect legal standard under Fordice, the district court did not err. It identified

and applied the standard under Fordice. To the extent Munchus and Strain argue



                                           14
that the district court abused its discretion in finding that the vestiges of

segregation had been eliminated to the extent practicable and consistent with sound

educational practices, the district court did not clearly err. The district court was

within its discretion to determine, based upon the evidence documented in progress

reports and prior opinions, that it had exhausted its role and efficacy in continuing

to desegregate Alabama’s higher education system. The district court had a record

consisting of reports of a special master, an oversight committee, and the

defendants that spanned the life of the consent decrees, upon which to base its

finding. Additionally, the settlement agreement between the class plaintiffs and

Alabama provides increased academic grant funding, continued funding for

programs required by the remedial decrees, and capital funding, and it provides for

court enforcement of the agreement. To the extent that Munchus and Strain argue

that diversity is immeasurable—or that desegregation is immeasurable through the

implementation of diversity initiatives—the record of desegregation in this case

demonstrates otherwise.

      Accordingly, we affirm.

      AFFIRMED.1




      1
          Appellants’ request for oral argument is denied.

                                                15
