Manning v. School Bd. of Hillsborough County, Fla.

ORDER

KOVACHEVTCH, Chief Judge.

This cause conies before the Court on the Court’s Order recommitting this matter to the Magistrate Judge for a determination of whether the Hillsborough County school system has attained unitary status (Docket No. 709), the assigned Magistrate Judge’s Report and Recommendation (Docket No. 809), Plaintiffs’ Objections to Report and Recommendation (Docket No. 812), Brief in Support of Plaintiffs’ Objections (Docket No. 813), and Defendants’ Response to Plaintiffs’ Objections to Report and Recommendation (Docket No. 815).

1

This action was filed on December 12,1958.

Plaintiffs represent a class consisting of all black children who attended the public schools of Hillsborough County, and the parents and guardians of those children. The complaint alleged that Defendants, the Hills-borough County School Board (formerly Board of Public Instruction of Hillsborough County), acting under the color of state law, had operated, and continued to operate the public school system in Hillsborough County on a racially segregated basis.

The Court initially dismissed the complaint for the Plaintiffs’ failure to exhaust administrative remedies; however, the dismissal was reversed and remanded by the court of appeals.

See Mannings v. Board of Public Instruction,

277 F.2d 370, 375 (5th Cir.1960). Subsequently, the Court conducted a bench trial and on August 21, 1962, entered an order finding that Defendants were, in fact, maintaining an unlawfully segregated system of public schools. Consequently, the Court enjoined Defendants from operating a racially discriminatory school system and allowed Defendants until October 30, 1962, in which to file a comprehensive plan for the desegregation of the Hillsborough County schools.

Despite the several desegregation plans devised by Defendants, the school system remained segregated.

See Mannings v. Board of Public Instruction of Hillsborough County,

306 F.Supp. 497 (M.D.Fla.1969). Significantly, in 1971, the United States Supreme Court issued several opinions which defined with particularity the responsibilities of school authorities and the scope of powers of federal courts in eliminating state-imposed segregation in' the public school systems.

See Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971);

North Carolina State Bd. of Education v. Swann,

402 U.S. 43 , 91 S.Ct. 1284 , 28 L.Ed.2d 586 (1971);

McDaniel v. Barresi

402 U.S. 39 , 91 S.Ct. 1287 , 28 L.Ed.2d 582 (1971); and

Davis v. Board of School Commissioners,

402 U.S. 33 , 91 S.Ct. 1289 , 28 L.Ed.2d 577 (1971). On May 11, 1971, the Court entered an Order explaining that Hills-borough County’s school system remained

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segregated and required Defendants to prepare and submit a comprehensive desegregation plan for the Hillsborough County school system.

In the May 11, 1971, Order, the Court explained that, despite the fact that black students comprised only 19% of the total student population, 69% of these students were attending twenty-eight (28) schools which had majority black populations. However, during this same time period, 69% of the white students attended 65 schools which were all, or at least 95% white. The Court emphasized that it had been unable to find a single instance in which Defendants had taken positive steps to end segregation at a black school and, consequently, segregation returned fortuitously. (May 11, 1971, Order at 39).

In order to remedy the constitutional violation, the Court directed Defendants to submit a comprehensive desegregation plan which was to become effective at the beginning of the 1971-1972 school year, and the Court provided Defendants with the following guidelines:

(a) The Plan shall have as its primary objective the abolition of segregation in all schools in the county, and in particular it shall aim at desegregation of all schools in the county now having a school population at least 50% black.

(b) In preparing the plan the school board shall begin with the proposition that a white-black ratio of 86%/14% in the senior high schools, and 79%/21% in the elementary schools would be the most acceptable and desirable form of desegregation.

(May 11,1971, Order at 43-44). The May 11, 1971, Order primarily addressed Defendants’ responsibility to remedy the segregative policies and practices in connection with student assignments. However, the Court also reiterated the importance of site location for new schools with regards to desegregation.

On July 2, 1971, the Court approved for implementation the comprehensive plan submitted by Defendants. (“July 2, 1971 or 1971 Order”). The plan approved by the Court provided that none of the established black schools would continue in their then existing configurations. Pursuant to the plan, physical plants that were serviceable would be converted to sixth and seventh grade centers. Those facilities which were not capable of conversion, were closed.

The 1971 desegregation plan was designed to desegregate student enrollments in grades one (1) through twelve (12); neither kindergarten nor pre-school was included.

2

All schools were assigned attendance boundaries which, when combined with the transportation of certain students, was expected to eliminate all majority black schools. The students attending the predominately black schools were assigned to various schools based on the location of their residence or the transportation of groups of these students from satellite zones.

3

As a result, black students were transported to provide racially mixed populations for grades one (1) through five (5), and eight (8) through twelve (12), whereas, white students were transported to sixth and seventh grade centers.

After the Court entered the July 2, 1971, Order, Plaintiffs filed a motion which requested that any desegregation plan adopted by the Court “include faculty desegregation and policies and general reporting provisions and that the Court retain jurisdiction.” (Docket No. 243). The Court subsequently required Defendants to submit reports and retained jurisdiction, but did not grant Plaintiffs’ request regarding faculty and staff assignments. Nevertheless, in a previous Order issued on August 25,1970, the Court had directed that principals, teachers, teacher-aides, and other staff, who work directly with children at a school, be assigned so that the staff’s racial composition would not reflect any intention that the school be either black or white. Teachers and other staff members were to be assigned so that the race ratio

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would be substantially similar to the system-wide ratio. In its July 2, 1971, Order, the Court continued these requirements, but specifically declined to require any detailed procedure with regard to faculty assignments, noting that, faculty desegregation “was accomplished at every school location in the 1970 school year;” therefore, no procedural requirements were necessary.

Also, in the July 2, 1971, Order, the Court explained that the previously ordered relief of majority-to-minority transfers, other transfer rules, and Bi-Racial Committee approval of site locations, may not be required if Defendants’ plan was effectuated and accomplished. However, the Court required the continuation of each of these requirements “to be available and used as necessary.” (July 2, 1971, Order at 9). In addition, the Court ordered Defendants to regularly reexamine their transportation system, all facilities, and all extracurricular activities, in order to assure that they were maintained, operated, and conducted on a nonsegregated, nondiseriminatory basis.

Id.

at 10.

In the 1971-1972 school year, the School Board had desegregated all Hillsborough County Schools, with regards to student assignment; no majority black school existed in the county. (T1 at 13).

4

Each year following implementation of the 1971 Plan, Defendants filed at least two (2) reports with the Court, copies of which were served upon opposing counsel. The first report provided enrollments by race and grade, as well as, faculty assignments, by race, at each school facility operated for grades one (1) through twelve (12) in the system. The second report enumerated proposed changes in student assignments, if any, which would become effective in the following school year. (DX 6 and 7). The reports of proposed student assignment modifications included,

inter alia,

boundary changes occasioned by overcrowding and student assignment modifications necessitated by the construction of new schools. The reports also included projections of anticipated enrollments, by race, at schools affected by the proposed changes. Joint Pre-Eviden-tiary Hearing Statement, (Docket No. 767), Statement of Admitted Facts at ¶ 18 (“Stipulation”).

As of October 27, 1971, there were no majority black schools among the school district’s 122 schools and only one (1) school, Lee Elementary, was more than 40% black. However, during the next few years, the percentage of black students increased at several schools. For example, during the next two (2) years, Edison Elementary became 40% black, DeSoto Elementary became 89% black, and Gary Elementary became 39% black. (DX 7).

The 1974 Annual Report submitted by Defendants reflected that there were 128 public schools in Hillsborough County. The report also indicated that one (1) school, Lee Elementary, had become majority black. In addition, Cleveland, DeSoto, Edison, and Gary Elementary had black student populations which exceeded 40%. After receiving this report, the Court,

sua sponte,

directed Defendants to file a supplemental plan designed to insure that, “the requirements of the Court’s previous orders insofar as they relate to Lee Elementary School will be complied with as of the beginning of the 1975-1976 school year.” (January 14, 1975, Order at 1); (Stipulation at ¶ 9). In addition, the Court directed Defendants’ attention to the other schools in the system which were experiencing disproportionate increases in black students.

Id.

On March 21, 1975, the School Board submitted a supplemental plan to the Court. Defendants’ plan proposed to convert Lee Elementary to a sixth grade center replacing the Meacham facility. Moreover, the plan proposed to reassign Lee’s former attendance area among seven (7) different elementary schools for grades one (1) through five (5). (Stipulation at ¶ 10). On June 3, 1975, the Court ordered implementation of the supplemental plan for Lee Elementary commencing with the 1975-1976 school year. (Stipulation at ¶ 11).

The 1975 Annual Report reflected that there were no majority black schools. However, five (5) schools, out of 128, had student

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populations which were greater than 40% black (Cleveland, Edison, Gary, Graham, and Palm River elementary schools). During the 1975-1976 school year, Cleveland became a majority black school (55%). In addition, Edison became 47% black, Gary became 47% black, and Graham became 49% black. Despite the projected student populations delineated in Defendants’ supplemental plan, there was no decrease in the percentage of black students in attendance at Cleveland and Gary. (DX 7).

At least since January 14, 1975, the Court has not directed the School Board to prepare a supplemental plan or to take any action with respect to the racial composition of any of its schools. Moreover, Plaintiffs did not seek relief or enforcement of any obligation imposed by the Court until June 1994. Furthermore, Plaintiffs did not file written objections with the Court respecting the actual or projected enrollments of any schools in Hills-borough County. (Stipulation at II15). In 1980, Plaintiffs objected to the proposed closing of George Washington Junior High School and Glover Elementary; however, Plaintiffs’ stated reasons were not related to the anticipated racial compositions of the affected schools.

In 1990, Plaintiffs objected, for reasons other than anticipated racial composition, to the proposed conversion of Blake seventh grade center to a high school. The Court disapproved Defendants’ proposal, without prejudice to subsequent resubmission as part of a comprehensive restructuring plan. (Docket No. 419).

Since the 1977-1978 school year, Defendants have made more than 300 modifications in student assignments to relieve overcrowding, to accommodate the opening of newly constructed facilities, or for other reasons, but not specifically for the purpose of affecting the race ratio of a school. (Stipulation at ¶ 19); (DX 6); (T2 at 15). Although changes to attendance patterns have not been made specifically to address race ratios at the schools, Defendants have taken into account the effect of the change on the racial composition of the schools. (Stipulation at 1122); (T1 at 15, 23).

The Bi-Racial Committee, required by the July 2, 1971, Order, has existed since the time of the Order and has reviewed proposed boundary changes, the sites of new schools, and special assignments in accordance with the Court’s Order. (T1 at 18-19). The BiRacial Committee provides input and advice on these proposals before they come before the School Board (T1 at 19-20). However, the Bi-Racial Committee is strictly an advisory board and does not have the authority to either approve or reject boundary changes. (T1 at 19).

In addition, while making adjustments to student assignments to deal with problems of overcrowding or with new school construction, Defendants, where practicable, reassigned, or divided and partially reassigned, existing satellite zones in a manner that moved enrollments toward the system-wide race ratio. (Stipulation at ¶ 23); (T1 at 25-27); (DX 4). For instance, when the School Board constructed a new facility in an area having a small resident black student population within the contiguous zone surrounding the facility, the School Board reassigned preexisting satellite zones to increase the number of black students assigned to the new facility. (Stipulation at ¶ 24); (T1 at 26, 33).

When modifying student assignments to relieve overcrowding or in connection with the opening of a new facility, the School Board has, since the 1975-1976 school year, created non-eontiguous zones ,or satellites in at least seven (7) instances. In most instances, students reassigned on a non-eontiguous basis were being transported to their former school of assignment before the change. (Stipulation at 1125). However, the School Board has never created a new non-eontiguous or satellite zone solely for the purpose of altering the racial enrollment at a school, including schools which were majority black. (Stipulation ¶ 26); (T1 at 14-15).

Since 1986, Defendants have not initiated boundary changes, not otherwise being considered for reasons such as overcrowding or the opening of a newly constructed facility, for the purpose of altering the racial composition at a school, including those schools that had majority black enrollments. (Stipulation ¶ 27).

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The majority to minority (“MTM”) transfer program which was required by the July 2, 1971, Order has existed since the time of the Order. However, this program has not been widely publicized in the past. Notwithstanding, the School Board recently directed that the program be publicized and the school district’s staff has announced the program to the entire district in recent years. (T1 at 89, 92).

In November 1989, the Hillsborough County Superintendent of Schools, Dr. Walter L. Sickles, appointed a Task Force to Modify Single Grade Centers to investigate and make recommendations for reorganizing the school system so as to establish middle schools. (Stipulation at ¶ 28). A goal to be achieved by any recommended reorganization was the retention of a desegregated school system. (Stipulation at ¶ 29). In late 1990 or early 1991, the School Board suggested to Plaintiffs’ counsel that representatives of the parties and their counsel meet to consider the tentative Middle School Plan being developed by the Task Force, to determine whether a joint submission of the plan could be made to the Court. (Stipulation at ¶ 30).

In early 1991, the Assistant Superintendent, James Randall, had an initial meeting with counsel for Plaintiffs. A more extensive meeting with counsel took place on March 15, 1991, attended by counsel for the parties, Dr. Sickles, Mr. Randall, and other staff members of the district, as well as, by Plaintiffs’ educational and desegregation consultant, Dr. Leonard Stevens. (Stipulation at ¶ 31). In connection with the March 15,1991, meeting, Plaintiffs’ representatives were provided with a document entitled “Proposed Cluster Plan,” which described the working concept of a middle school reorganization which was being considered by the Task Force. (Stipulation at ¶ 32). After several subsequent meetings, a formal report entitled “Middle School Task Force Report 3, July 1991” (“Task Force Report”) was submitted to and approved by the School Board. The Task Force Report was tendered to Plaintiffs on August 20,1991. (Stipulation at ¶ 35).

Because the school system remained under the Court’s supervision, Defendants were required to propose their Middle School Plan (also known as the “Cluster Plan”) to the Court. The parties proposed an agreed order to the Court, which was approved and entered on October 24, 1991 (“Consent Order”). The Court explained that the Consent Order was the “result from the school district’s comprehensive study of the educational advantages of reorganizing its grade structure to establish ‘middle schools’ serving grades 6-8, and that the School Board’s conclusion, following that study, that implementation of the middle school grade structure is desirable.” (1991 Consent Order at 1). The Task Force Report was attached to and made a part of the Consent Order. (Stipulation at ¶ 36).

The Task Force Report proposed modifications which were projected to be implemented over a seven (7) year period. The modifications included grade organization and student assignments in Hillsborough County in order to accommodate the establishment of middle schools. (1991 Consent Order at 2). Prior to implementation of the Cluster Plan, Hillsborough County public school students progressed from elementary schools, to single sixth or seventh-grade centers, which were established for desegregation purposes under the original desegregation plan, to junior high schools, and then to high schools. However, under the Middle School Plan, students would progress from kindergarten through fifth grade elementary schools, to middle schools having sixth, seventh, and eighth grades, and then to high schools. Thus, the single grade centers were to be converted to middle schools. In addition, implementation of the Middle School Plan involved creating attendance “clusters” which grouped elementary and middle schools around the high school which those students ultimately would attend. (Task Force Report at 10).

The Middle School Plan also involved the creation of magnet programs at some schools. (Task Force Report at 17-25). One of the purposes of developing the magnet programs was to help desegregate the schools. Some of the schools which were targeted for the programs were predominately black prior to 1971 and the School Board anticipated that these schools would become “black schools” again if the student

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population was comprised solely of students from the surrounding neighborhoods as a result of the Middle School Plan. (T1 at 66). The programs were designed to perpetuate racial balance. (T1 at 66-67).

In the 1991 Consent Order, the Court explained that:

The Court recognizes and anticipates that there will be modifications each year of the projected student assignment patterns contained in Appendix 1 to the Task Force Report to take account of demographic or other changes that occur. In making such modifications, the school district should seek to minimize (to the extent practicable) the number of schools which deviate from the system-wide student enrollment ratios (see Task Force Report, at p. 14).

(1991 Consent Order at 5-6). However, in the Task Force Report, the School Board predicted that, under the Middle School Plan, there would be an increase, from thirty-six (36) to forty-six (46), in the number of schools that deviated from the 20/80 ratio by

10% or

higher, and, an increase, from fifty-six (56) to seventy-two (72), in the number of schools that deviated from the 20/80 ratio 5% or less. Therefore, while the Middle School Plan was projected to increase the number of schools which had racial compositions closer to the district-wide ratio, the plan contemplated an increase in the number of schools that significantly varied from the 20/80 ratio.

The 1993 Annual Report reflects that the school system was comprised of 151 schools. As of the time of the report, there were eight (8) elementary schools and one (1) junior high school with student populations which were 50% or more black. Notably, Cleveland Elementary was 59% black and Robles Elementary was 90% black. In addition, there were five (5) elementary schools and two (2) junior high schools with student populations which were more than 40% black. (DX 7).

At the time of the 1996 hearing before the assigned Magistrate Judge, the Middle School Plan was in its sixth year and eleven (11) out of the seventeen (17) clusters had been implemented. The remaining six (6) clusters were targeted for the 1997-1998 school year. (Stipulation at ¶ 37). Also, during this time period, the school system had nine (9) schools with magnet programs and had plans for five (5) additional magnet programs at other schools.

On June 1,1994, Plaintiffs filed an Amended Motion to Enforce and Consent Order (Docket No. 439). In their Motion, Plaintiffs complained, for the first time, of the existence of schools where black students constituted at least 40% of the total student population. Plaintiffs alleged that the existence of these schools was a violation of the 1971 desegregation plan adopted by the Court. Plaintiffs also asserted that Defendants had not complied with the 1991 Consent Order, which provided that, in the event Defendants deviated from the student attendance patterns contained in the proposed Middle School Plan, they would “seek to minimize (to the extent practicable) the number of schools which deviate from the system-wide student enrollment ratios.”

See

(1991 Consent Order at 6) (citation omitted).

Plaintiffs’ Motion pointed out that sixteen (16) schools, out of 149, had black student populations comprising 40% or more of the total student population. The sixteen (16) schools and the percentages of black students in each school, as of the 1995-1996 school year, was as follows: Robles Elementary (90%), Edison Elementary (75%), Sul-phur Springs Elementary (74%), Oak Park Elementary (70%), Graham Elementary (67%), Foster Elementary (61%), Cleveland Elementary (57%), Shaw Elementary (56%), Witter Elementary (54%), Cahoon Elementary (52%), Clair Mel Elementary (49%), West Tampa Elementary (47%), DeSoto Elementary (43%), Van Burén Junior High (53%), Sligh Junior High (50%), and Dowdell Junior High (49%). (DX 7). Each of these sixteen (16) schools were predominately white in 1971. (T1 at 33).

Plaintiffs’ Motion to Enforce was referred to the Magistrate Judge for a Report and Recommendation. The assigned Magistrate Judge held an evidentiary hearing and recommended denial of Plaintiffs’ Motion for failure to establish a violation of the Court’s orders. On November 17, 1995, this Court deferred ruling on the Report and Recommendation, noting that Plaintiffs’ Motion focused on student assignment. The Court explained that the issues raised in connection

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with Plaintiffs’ Motion to Enforce, “demonstrates the need to expand the scope of the inquiry to a full fledged determination of whether the Hillsborough County school system has in fact achieved unitary status.” (Order Recommitting Matter to Magistrate, Docket No. 709 at 3). The Court further emphasized that, “[a]s it stands now, this Court and the parties are attempting to chart a course for the future without the benefit of a sound assessment of where we are currently.”

Id.

at 3.

Consequently, the Court ordered:

[A] showing by Defendants as to whether they have complied with this Court’s 1971 Order regarding the factors set forth by the United States Supreme Court in

Green v. County School Bd. of New Kent County, Va.,

391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968). In addition to student assignments,

Green

and

Freeman

require that faculty and staff assignments, transportation, extracurricular activities, facilities and resource allocation all be free from racial discrimination. In each of these areas, the School Board bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior constitutional violation of plaintiffs’ rights.

Freeman,

603 U.S. at 494[, 112 S.Ct. 1430 ]. The quality of education being received by all students and the good faith commitment by the School Board must be shown.

Id.

at 4.

Following the referral Order, the assigned Magistrate Judge set a hearing on the unitary status determination and thereafter, conducted monthly status conferences with counsel for the parties. The parties exchanged discovery and retained expert witnesses. After the evidentiary hearing was concluded, the parties filed proposed findings of fact and conclusions of law which were supplemented after the filing of the 6th Annual Report to the Consent Order. Closing arguments were presented on May 22, 1997.

On August 26, 1997, the assigned Magistrate Judge issued a Report and Recommendation on the issue of whether the public school system of Hillsborough County has attained unitary status and should be released from court supervision. (Docket No. 809). After a comprehensive analysis of the issue, the assigned Magistrate Judge recommended that this Court find that Defendants have demonstrated that the public school system has attained unitary status. Although this Court agrees with a majority of the Magistrate Judge’s analysis, the Court disagrees that school system should be released from supervision at this time.

As a preliminary matter, the Court feels compelled to address the concerns regarding the duration of this litigation and the passage of time since this Court provided Defendants with specific instructions. One theme which Defendants have reiterated continuously throughout this litigation has been that, even when the schools in the county began to deviate from the system-wide race ratios, Plaintiffs, and the Court, failed to challenge this occurrence. However, it is clear that Defendants have been charged with the affirmative duty to desegregate the public schools in Hillsborough County to the maximum extent practicable. Regardless of the reasons for inaction by Plaintiffs and the Court, Defendants remain obligated to fully and diligently discharge their duties. Although Defendants were entitled to seek release from the Court’s supervision at anytime after the desegregation plan was implemented, their obligations remain until this Court ruled otherwise.

A considerable amount of time has passed since the desegregation plan was implemented. Undoubtedly, Defendants’ desegregation efforts demonstrate significant success; however, the amount of time Defendants have had to achieve this success detracts from their achievements. Moreover, while Defendants may have seen the delay in the instant rulings as merely an unfortunate reality of an overcrowded Court docket, the Court has viewed this delay as an additional opportunity for Defendants to demonstrate that Court supervision is no longer necessary. Defendants have failed to capture that opportunity.

DISCUSSION

Vacation or Modification

Plaintiffs’ first objection concerns the Magistrate Judge’s finding that attainment of unitary status constitutes a “changed circum

*1288

stance” warranting vacation of the 1991 Consent Order. The Magistrate Judge explained that modification of a consent order in a desegregation case may be considered when:

(1) a significant change in facts or law warrants change and the proposed modification is suitably tailored to the change;

(2) significant time has passed and the objectives of the original agreement have not been met; (3) continuance is not longer warranted; and/or (4) continuance would be inequitable and each side has legitimate interests to be considered.

(R & R at 64)(citing

Jacksonville Branch NAACP v. Duval County Sch. Bd.,

978 F.2d 1574, 1578 (11th Cir.1992)). Plaintiffs contend that attainment of unitary status cannot amount to a changed circumstance warranting modification or vacation of a consent order. Plaintiffs argue that, in order to disturb a consent order, the change in circumstances must not have been foreseen at the time the agreement was reached. Plaintiffs cite

Rufo v. Inmates of Suffolk County Jail,

502 U.S. 367 , 112 S.Ct. 748 , 116 L.Ed.2d 867 (1992), for the proposition that a significant change in factual conditions cannot be predicated on events actually anticipated at the time of entering of the decree. (Br. in Supp. of Pis.’ Obj. to R & R at 12). Plaintiffs argue that, “[tjhere is no evidence — nor could defendants present any plausible evidence— that unitary status was an unforeseen circumstance when the parties entered into the 1991 Consent Order.”

Id.

(emphasis omitted).

Significantly, the respondents in

Rufo

argued that modification of a consent decree should only be allowed when a change in facts is both unforeseen and unforeseeable. 502 U.S. at 385 , 112 S.Ct. 748 . The Supreme Court explained that this standard proposed by the respondents would be even less flexible than the

Swift

test,

5

a test rejected by the Supreme Court as being too rigid to apply in all cases.

Id.

at 380, 385 , 112 S.Ct. 748 . Consequently, in the case at hand, Plaintiffs are proposing an unsupportable standard. Moreover, Defendants argue that, if the attainment of unitary status cannot serve as a sufficient change in circumstances to warrant dissolution of a consent decree, then no consent decree entered in a desegregation case could ever be dissolved, despite the achievement of the stated goals. Clearly, the consent order was not intended to require judicial supervision indefinitely.

Furthermore, the

Rufo

Court acknowledged a district court’s need to be able to modify a decree in desegregation cases; “[bjecause such decrees often remain in place for extended periods of time, the likelihood of significant changes occurring during the life of the decree is increased.” 502 U.S. at 380 , 112 S.Ct. 748 (noting the upsurge in institutional reform litigation since

Brown v. Board of Educ.,

347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954)). Moreover, “federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.”

See Board of Educ. of Oklahoma City Pub. Sch. v. Dowell,

498 U.S. 237, 247 , 111 S.Ct. 630 , 112 L.Ed.2d 715 (1991). Accordingly, if the purposes of this desegregation litigation, as incorporated in the 1991 Consent Order, have been fully achieved, then the Order can be modified and/or vacated.

Id.

In the instant case, modification is appropriate.

Interrelated

Green

Factors

Plaintiffs also argue that the Magistrate Judge failed to address the relationships among the many

Green

factors in determining that the school system is unitary. Plaintiffs contend that the grade restructuring plan being implemented, pursuant to the 1991 Consent Order, is a seven-year plan that should be completed in order to fully evaluate its effectiveness and constitutional compliance. Consequently, Plaintiffs assert modification is inappropriate at this time. (Br. in Supp. of Pis.’ Obj. to R & R at 5). Plaintiffs argue that many of the

Green

factors are inextricably linked to the grade re

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structuring plan; therefore, the evaluation of the

Green

factors will depend on the full implementation of the plan and declaration of unitary status should be deferred.

Conversely, Defendants contend that continuation of the 1991 Consent Order is no longer warranted when the school system attains unitary status. Defendants argue that, if the school system is unitary, then the purpose of both the 1971 Order and 1991 Consent Order has been met; therefore, continuing supervision is unnecessary. (Def.’s Resp. to Pis.’ Objs. to R & R at 3).

The Court must evaluate the

Green

factors in order to determine whether Defendants have attained unitary status. The interdependence of these factors is typically evaluated when an incremental release of Court supervision is contemplated. Contrary to Plaintiffs’ assertion, the Magistrate Judge noted:

However, if the Court has concerns about whether defendants have desegregated the elementary schools to the maximum extent practicable, continued supervision over student assignment could be retained while relinquishing jurisdiction over the other aspects of school operation as long as remedial action in the other areas is not necessary to achieve unitary status in the area of school assignment.

(R & R at 88 n.56). Consequently, the Court will analyze the relationships among the

Green

factors at the appropriate time.

Unitary Status

I. Vestiges of Past Discrimination

Clearly, the attainment of unitary status is the goal of the instant desegregation litigation.

6

“The objective today remains to eliminate from public schools all vestiges of state-imposed segregation.”

Swann,

402 U.S. at 15, 91 S.Ct. 1267 .

The concept of unitariness has been a helpful one in defining the scope of the district courts’ authority, for it conveys the central idea that a school district that was once a dual system must be examined in all of its facets, both when a remedy is ordered and in the later phases of desegregation when the question is whether the district courts’ remedial control ought to be modified, lessened, or withdrawn.

Freeman v. Pitts,

503 U.S. 467, 486 , 112 S.Ct. 1430 , 118 L.Ed.2d 108 (1992).

A. Defendants’Duty

The question is whether Defendants have successfully discharged the duty imposed by the Constitution to eliminate the vestiges of

de jure

segregation. District courts have been directed to assert jurisdiction over school systems which previously practiced

de jure

segregation to ensure compliance with the constitutional mandate of

Brown v. Board of Educ.,

347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954)

(“Brown, I"). See Brown v. Board of Educ.,

349 U.S. 294, 300-01 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955)

(“Brown II”).

The courts’ jurisdiction is to be exercised until a determination can be made that the vestiges of past discrimination have been eliminated to the maximum extent practicable.

See Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1, 15 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971). In order to achieve constitutional compliance, a school district is obligated to comply, in good faith, with the court’s desegregation decree and “take whatever [affirmative] steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”

Green v. School Bd. of New Kent County,

391 U.S. 430, 437-39 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968). Significantly, “[e]ach instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment.”

Columbus Bd. of Educ. v. Penick,

443 U.S. 449, 459 , 99 S.Ct. 2941 , 61 L.Ed.2d 666 (1979). Consequently, Defendants should be released from judicial supervision only when the Court finds that: (1) Defendants have eliminated the vestiges of past discrimination

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to the maximum extent practicable; and (2) Defendants have exhibited a record of full and satisfactory compliance with the Court’s orders. Importantly, Defendants remain subject to the 1971 desegregation Order until this Court declares that the school district has achieved unitary status and has complied with the Court’s orders in good faith.

See Pasadena City Bd. of Educ. v. Spangler,

427 U.S. 424, 439-40 , 96 S.Ct. 2697 , 49 L.Ed.2d 599 (1976).

The School Board’s responsibility to eliminate the vestiges of the unconstitutional

de jure

system “is required in order to ensure that the principal wrong of the de jure system, the injuries and stigma inflicted upon the race disfavored by the violation, is no longer present.”

Freeman v. Pitts,

503 U.S. 467, 485 , 112 S.Ct. 1430 , 118 L.Ed.2d 108 (1992). However, “a remedy is justifiable only insofar as it advances the ultimate objective of alleviating the initial constitutional violation.”

Id.

at 489, 112 S.Ct. 1430 ;

Swann,

402 U.S. at 16, 91 S.Ct. 1267 (explaining that judicial powers may be exercised only on the basis of a constitutional violation). The purpose of the remedial action is to eliminate the vestiges of state-compelled dual systems, not to remedy racial imbalances unrelated to

de jure

segregation.

Id.

at 494, 112 S.Ct. 1430 . Nevertheless, if Defendants have not discharged their affirmative constitutional duty to dismantle the dual school system, the school district remains in violation of the Fourteenth Amendment.

(i)

Racially Identifiable

In terms of describing the alleged shortcomings of Defendants’ desegregation efforts, Plaintiffs assert that Defendants do not have a working definition of a desegregated school. The concept of “racial identifi-ability” is generally used to describe the relationship between the racial composition of a particular school and the racial composition of the system as a whole. The Supreme Court’s decision in

Green

requires school boards to prove that racially identifiable schools are not the consequence of past or present discriminatory state action. Throughout this litigation, the parties have been unable to agree on a definition of a racially identifiable school. Nevertheless, Plaintiffs suggest a definition of a racially identifiable school as: a school having a population of black students of forty-percent (40%) or more.

Defendants argue that a working definition of a desegregated school is not required in order to determine whether unitary status has been achieved. Defendants emphasize that the Court provided numerical goals for the Defendants to consider as it aimed at desegregating schools. However, a particular percentage has not been used as a line of demarcation. For example, in the 1971 Order, the Court directed Defendants to concentrate on all schools in the county having at least a 50% black population. The Court further suggested that a white-black ratio of 86%/14% in the senior high schools, 80%/20% in the junior high schools, and 79%/21% in the elementary schools would be the most acceptable and desirable form of desegregation. 1971 Order at 43-44. Notwithstanding, Defendants stress that none of the Court’s Orders have expressly or implicitly directed Defendants to maintain a particular student race ratio at any school, or to take any action in response to increased black enrollments in the schools.

7

In the 1971 Order, the Court explained that the Hillsborough County school system was a segregated system. “As of October 24, 1969, 74% of the county’s white students were in 70 white schools, whereas 65% of the black students were concentrated in 21 black schools.” (1971 Order at 35). Moreover, the Court explained that, as of October 23, 1970, 46% of the school system’s blacks were attending 15 black schools. “Although they comprised only 19% of the student population, 13,606, or 69%, were in 28 schools at

*1291

least 50% black. On the other hand, 69% of the white students — 57,869 out of 83,474— attended 65 schools either all white or at least 95% white.”

Id.

After the Court entered the 1971 Order, 97% of Hillsborough County elementary school students attended racially balanced schools, according to Plaintiffs.

8

In comparison, Plaintiffs argue, only 69% of Hillsbor-ough County elementary school students attended racially balanced schools in 1995. Moreover, Plaintiffs point out that, for all but two (2) years between 1971 and 1988, 90% of junior high school students attended racially balanced schools; however, as of 1995, the percentage has dropped to 75%.

9

The Constitution does not require that every school in every community must always reflect the racial composition of the school system as a whole.

See Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1, 24 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971). The Courts have consistently warned against the application of an inflexible standard of having “no majority of any minority” in a school.

Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.

Id.

at 31-32 , 91 S.Ct. 1267 . Accordingly, it is clear that Defendants had no continuing duty to maintain a particular black to white student ratio on a school-by-school basis over the expansive time period of this litigation, including the 80%/20% ideal set forth in the 1971 Order.

See Id.

at 24 , 91 S.Ct. 1267 (disapproving an approach to desegregate schools which requires, as a matter of constitutional right, any particular degree of racial balance or mixing).

Nevertheless, the district-wide ratios are an important starting point to analyze Defendants’ fulfillment of its obligations. “In most cases where the issue is the degree of compliance with a school desegregation decree, a critical beginning point is the degree of racial imbalance in the school district, that is to say a comparison of the proportion of majority to minority students in individual schools with the proportions of the races in the district as a whole.”

Freeman,

503 U.S. at 474 , 112 S.Ct. 1430 . Moreover, although schools which have become virtually all one-race “require close scrutiny,” they are not

per se

unconstitutional.

Swann,

402 U.S. at 26, 91 S.Ct. 1267 . However, their existence in a school system with a history of

de jure

segregation, establishes a presumption that they exist as a result of discrimination and the burden of proof shifts to the School Board.

Id.

“The school district bears the burden of showing that any current [racial] imbalance is not traceable, in a proximate way, to the prior violation.”

Freeman,

503 U.S. at 494 , 112 S.Ct. 1430 .

The Court finds that Plaintiffs’ definition of a racially identifiable school is useful and fair. A school that has 20% more black students than that of the district-wide composition indicates that the school has deviated significantly from the system-wide norm. While the phrase “racially identifiable” is useful as a descriptive term, it should not be accorded more weight than it deserves.

10

A school system can have racially identifiable schools and still be a unitary school system. Moreover, if the racial identifiability is unrelated to

de jure

segregation, a court imposed remedy is not justified. However, the fact

*1292

that a school deviates from the system-wide ratio should, at least, cause some concern and an evaluation by the School Board (the authority charged with the responsibility to desegregate the schools to the maximum- extent possible), must ensue.

11

In other words, while racial identifiability of a school is, relevant, it does not define the standard for determining whether the School Board has discharged its affirmative duty or has achieved unitary status.

(ii)

Demographics

Plaintiffs challenge the Magistrate Judge’s evaluation of Defendants’ evidence concerning the change in demographics in Hillsbor-ough County. Plaintiffs argue that, not only is the change in demographics in Hillsbor-ough County far less dramatic and more incremental than in

Freeman ,

but the identification of pure demographic change is further complicated by the implementation of a Middle School Plan.

12

(Br. in Supp. of Pis.’ Obj. to R & R at 15). Plaintiffs maintain that the Middle School Plan requires considerable change and that the statistical information on the precise demographic effect will not be discernible until the 2000 census is available. Moreover, Plaintiffs argue that Defendants have acted, or failed to act, in a number of ways which has contributed to the racial identifiability of the Hillsborough County schools. Plaintiffs assert that the issue is whether Defendants bear any responsibility for the racial identifiability and, if so, the extent to which Defendants are responsible.

As noted above, there are sixteen (16) schools which have become focal points for determining whether or not the school system is unitary.

13

The percentages of black students in each of these sixteen (16) schools, as of the 1972-73 school year, were as follows: Robles Elementary (24%), Edison Elementary (36%), Sulphur Springs Elementary (19%), Oak Park Elementary (23%), Graham Elementary (35%), Foster Elementary (21%), Cleveland Elementary (26%), Shaw Elementary (15%), Witter Elementary (18%), Ca-hoon Elementary (21%), Clair Mel Elementary (18%), West Tampa Elementary (14%), DeSoto Elementary (35%), .Van Burén Junior High (17%), Sligh Junior High (20%), and Dowdell Junior High (14%). (DX 7). In 1970, the total population in Hillsborough County was 490,265, of which, 422,119 were white and 66,648 (13.5%) were black. (DX 2 Table 1). During the same year, the total population between the ages of 0 to 17 years old was 164,278, of which, 135,344 were white, and 28,527 (17.4%) were black.

14

Id.

However, the latest figures used in this litigation reflect the following percentages of black students attending the sixteen (16) schools, as of the 1995-1996 school year: Robles Elementary (90%), Edison Elementary (75%), Sulphur Springs Elementary (74%), Oak Park Elementary (70%), Graham Elementary (67%), Foster Elementary (61%), Cleveland Elementary (57%), Shaw Elementary (56%), Witter Elementary (54%), Ca-hoon Elementary (52%), Clair Mel Elementary (49%), West Tampa Elementary (47%), DeSoto Elementary (43%), Van Burén Junior High (53%), Sligh Junior High (50%), and Dowdell Junior High (49%). (DX 7). In 1990, the total population in Hillsborough County was 834,054, of which, 690, 352 were white and 110,283 (13.2%) were black. (DX 2 Table 1). During the same year, the total population between the ages of 0 to 17 years old was 202,274, of which, 152,900 were white, and 39,163 (19.4%) were black.

15

Id.

*1293

Plaintiffs assert that, since 1971, there has been relatively little change in the racial composition of the Hillsborough County School District as a whole and by grade level, except at the high school lével. (Pis. Proposed Findings of Fact and Conclusions of Law at 12). Plaintiffs contend that, while most schools in Hillsborough County reflect the district-wide student racial composition, the schools with 40% or more black student populations should be considered racially identifiable because they are approximately 20 percentage points above the system-wide ratio.

Id.

Moreover, Plaintiffs point out that, the majority of these schools are 30 percentage points or more above the district-wide black student racial composition.

Id.

Conversely, Defendants argue that the increase in the number of schools with a majority black student population is the result of residential patterns and not the product of discrimination by the School Board. Moreover, Defendants argue that Plaintiffs’ insistence on the elimination of racially identifiable schools seeks to impose an obligation on Defendants which is not mandated by governing law. Defendants emphasize that the Court may only order the elimination of racially imbalanced schools when the racial imbalance was caused by an unlawful

de jure

policy of the school district.

Defendants’ recitation of the law is correct. “Racial balance is not to be achieved for its own sake.”

Freeman,

503 U.S. at 494 , 112 S.Ct. 1430 . In

Freeman ,

Supreme Court evaluated a district court’s role in supervising a school system where demographics are the cause of racial imbalances and stated:

Where resegregation is a product not of state action but of private choices, it does not have constitutional implications. It is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. To attempt such results would require ongoing and never-ending supervision by the courts of school districts simply because they were once de jure segregated.

Freeman,

503 U.S. at 495 , 112 S.Ct. 1430 . Accordingly, in the case at hand, the issue is whether the racial imbalances in the school district have a causal link to the

de jure

violation being remedied.

The Court is not convinced that a shift in demographics and residential patterns explains the racial imbalance in the Hillsborough County School system. Defendants have failed to adequately discharge their affirmative duty to eliminate the dual system “root and branch.” While the Court finds that the racial imbalances in the schools are not the result of a deliberate attempt by Defendants to fix or alter demographic patterns to affect the racial composition of the schools, Defendants’ apathy over the years demonstrates a lack of good faith compliance.

16

Moreover, because Defendants failed to fully discharge their affirmative duty to desegregate the school system, the district has not been desegregated to the maximum extent practicable. Defendants have failed to prove that the racial imbalances are not traceable, in a proximate way, to the past

de jure

segregation.

B. Student Assignments

All of the schools in Hillsborough County were desegregated as of the 1971-1972 school year. Furthermore, each of the sixteen (16) schools, which are currently considered racially imbalanced, was predominately white following the 1971 desegregation Order. (T1 at 33). Since that time, the School Board has implemented numerous attendance changes which altered the racial composition of the schools district-wide. However, these sixteen (16) schools have increased their black student populations relatively quickly after the 1972-1973 school year and their enrollments have become disproportionate to the system-wide race ratios. Although

*1294

Defendants used projected attendance figures to calculate the expected improvements to the race ratios of the schools, the Court will focus on the actual changes to evaluate the cause of the racial imbalance in the sixteen (16) schools.

(i)

Attendance Zone Adjustments

Robles Elementary

The first boundary changes made to Robles’ attendance zone took place during the 1976-1977 school year. The boundary change which affected first through fifth graders included transferring fifty-three (53) black and seventeen (17) white students from Robles Elementary to Browards Elementary. In addition, eight (8) black and three (3) white sixth graders were transferred to Potter Elementary. The actual racial composition of students in attendance for the 1975-1976 school year was 33% black and 67% white, whereas after the change was made, the actual racial composition of students in attendance for the 1976-1977 school year was 30% black and 70% white. Significantly, no other boundary changes were implemented that would have affected Robles’ attendance zone. The actual racial composition of Robles for the 1995-1996 school year was 90% black and 10% white.

Cleveland Elementary

Defendants changed Cleveland’s attendance area for the 1972-1973 school year to encompass a portion of Potter Elementary’s attendance zone and the parameters of the attendance area were redrawn. The actual composition of students in attendance for the 1972-1973 school year was 26% black and 74% white. For the 1975-1976 school year, Defendants made boundary changes which affected first through fifth graders by adjusting the parameters of the attendance zone. All sixth grade students were moved to the Potter attendance zone. The actual racial composition of students in attendance for the 1974-1975 school year was 46% black and 54% white, whereas after the changes were made, the actual racial composition of students in attendance for the 1975-1976 school year was 44% black and 56% white. For the 1989-1990 school year, 12 black and 12 white students were reassigned from Sulphur Springs Elementary to Cleveland and the parameters of Cleveland’s attendance zone were readjusted. The actual racial composition of students in attendance for the 1988-1989 school year was 61% black and 39% white, whereas after the changes were made, the actual racial composition of students in attendance for the 1989-1990 school year was 53% black and 47% white. No other boundary changes were implemented that would have affected Cleveland’s attendance zone. The actual racial composition of Cleveland for the 1995-1996 school year was 57% black and 43% white.

Edison Elementary

The actual racial composition of students in attendance for the 1972-1973 school year was 36% black and 64% white. The first boundary change affecting Edison’s attendance zone was implemented for the 1982-1983 school year. Twenty-one (21) white and ninety-four (94) black students were transferred from Edison to Claywell Elementary. The actual racial composition of students in attendance for the 1981-1982 school year was 55% black and 45% white, whereas after the change was made, the actual racial composition of students in attendance for the 1982-1983 school year was 50% black and 50% white. No other boundary changes were implemented that would have affected Edison’s attendance zone. The actual racial composition of the students in attendance for the 1995-1996 school year was 75% black and 25% white.

Graham Elementary

The actual racial composition of the students in attendance for the 1972-1973 school year was 35% black and 65% white. The’ first boundary change affecting Graham’s attendance zone was implemented for the 1988-1989 school year. Graham received thirteen (13) black first through sixth graders from the Gorrie satellite, pursuant to a student assignment change. The actual racial composition of students in attendance for the 1987-1988 school year was 63% black and 37% white, whereas after the change was made, the actual racial composition of the students in attendance for the 1988-1989 school year was 64% black and 36% white. No other boundary changes were implemented that would have affected Graham’s attend-

*1295

anee zone. The actual racial composition of the students in attendance for the 1995-1996 school year was 67% black and 38% white.

Oak Park Elementary

The actual racial composition of the students in attendance for the 1972-1973 school year was 23% black and 77% white. The first boundary change affecting Oak Park’s attendance zone was implemented for the 1979-1980 school year. During the 1979-1980 school year, there was a satellite transfer made from Oak Park to DeSoto Elementary and there was a satellite transfer from Gary to Oak Park Elementary. These satellite transfers were implemented in order to close Gary Elementary. The actual racial composition of students in attendance for the 1978-1979 school year was 46% black and 54% white, whereas after the change was made, the actual racial composition of the students in attendance for the 1979-1980 school year was 41% black and 59% white. During the 1996-1997 school year, one (1) white and ten (10) black first through fifth graders were transferred from Oak Park to Alafia Elementary School as the result of a needed cluster adjustment. The actual racial composition of the students in attendance for the 1996-1997 school year was not available when Defendants submitted their materials. The actual racial composition of the students in attendance for the 1995-1996 school year was 70% black and 30% white.

Defendants do not dispute the fact that no boundary changes were specifically made to reduce the racial imbalance. Instead, Defendants attribute the increase in the black student populations at the sixteen (16) schools to demographic changes in attendance zones and contend that, as a result, no changes were required. For example, Defendants argue that the percentage of black school-age children living in the Robles attendance zone increased from 13% in 1970 to 31.3% in 1980.

17

Defendants argue that the Robles attendance zone subsequently experienced a drastic increase in the percentage of black school-age children from 31.3% in 1980 to 71.4% in 1990. Census data is unavailable for changes occurring after 1990. Notwithstanding, Defendants assert that when they have made changes to the attendance patterns for reasons other than race, the racial composition of the schools was a paramount consideration.

Conversely, Plaintiffs maintain that there has been relatively little change in the racial composition of the Hillsborough County school district as a whole since 1971. Plaintiffs argue that during the period when the number of racially identifiable schools increased, Defendants opened and closed schools which created new attendance zones. Plaintiffs contend that, when the initial decisions were made, for example, to construct a new school, the principal concern should have been desegregation; the problems of overcrowding could have been adjusted accordingly. Plaintiffs argue that Defendants’ obligations include,

inter alia,

considering the construction and abandonment of school facilities, and drawing attendance zones so as to affirmatively promote desegregation of the school system. Plaintiffs argue that mere neutrality is not an option.

In addition, Plaintiffs assert that over the course of this litigation, Defendants altered existing attendance zones and redeployed inner-city satellite zones from school to school. Consequently, Plaintiffs argue, Defendants were provided with an opportunity to address existing racial identifiability in the school system; however, Defendants failed to take advantage of those opportunities. Furthermore, Plaintiffs emphasize that the attendance zones were changed infrequently for the schools which are now racially identifiable; therefore, Defendants’ failure to act has contributed to this racial imbalance in the schools. Moreover, Plaintiffs argue that, other techniques used to improve the racial compositions at schools in Hillsborough County, such as the assignment and reassignment of satellite zones, were not used to reduce the percentages of black students at schools such as Robles. As a result, Plaintiffs assert that this Court must determine whether Defendants have been affirmatively seeking to integrate the Hillsborough County school system with respect to all of the factors outlined in

Green ,

from 1971 until the present.

*1296

Undoubtedly, Defendants have been effective in desegregating the Hillsborough County school system. Hillsborough County is the 12th largest school district in the country. For the 1996-1997 school year, the county consisted of 149 public schools. Defendants point out that a majority of the schools have remained within a plus or minus 10% variance from the 80/20 race ratio suggested as ideal by the Court in 1971.

18

See

6th Annual Report at 42. Moreover, Defendants argue that, although the modifications have been made for reasons other than race, Defendants had no obligation to improve racial balances if the imbalances were not caused by either prior or present action of the School Board.

Defendants assert that, upon implementing their desegregation plan, none of the schools in Hillsborough County had a black majority population for the 1971-1972 school year.

19

Defendants point out that, although a few elementary schools began to increase their black population in the following years, the School Board implemented a supplemental plan with the Court’s approval.

20

By the end of 1974, no schools had a black majority population.

21

Defendants argue that, from that point forward, the School Board has endeavored to maintain a desegregated school system in Hillsborough County. Defendants argue that, Plaintiffs’ demand that: “all racially identifiable schools be eliminated,” is contrary to the mandates of the Constitution. Defendants argue that they are not required to maintain a specific ratio at each school in the County.

Defendants admit that the schools which are now majority black schools and which are the focus of the Plaintiffs’ Motion to Enforce Order, have steadily increased their black population over the course of this litigation; however, Defendants attribute this increase to the change in demographies, rather than, any action or inaction by the School Board.

22

Consequently, Defendants argue that they were not required to take affirmative action. Defendants contend that the only issue is whether the racial imbalances are traceable to the prior violation.

Defendants’ Expert

During the 1996 unitary status hearing, Defendants’ expert, Dr. Clark, testified about the differences in growth rates between the black and white populations of children 0 to 17 years old. Dr. Clark noted that, between 1970 and 1980, the white 0 to 17 population grew by under 3% while the black 0 to 17 population grew by almost 16%, five times as fast. (T2 at 20). From 1980 to 1990, the growth of the black population was almost twice as fast as the growth of the white population.

Id.

Dr. Clark explained that the growth in both segments of the population, as a whole, makes it possible to keep racial balance within a reasonable boundary.

Id.

However, according to Dr. Clark, the differential growth rate of the black 0 to 17 population indicates that the black school-age population was increasing proportionately faster, making it more difficult to keep the schools racially balanced.

Id.

at 21.

Significantly, Dr. Clark testified that changes in the populations did not occur uniformly across the county. Dr. Clark explained that Hillsborough County experienced a significant loss of white population

*1297

and a significant gain of black population in the inner-city area.

Id.

at 25. Therefore, according to Dr. Clark, any schools within the inner-city areas that are neighborhood schools, will reflect racial compositions similar to that of the composition of the inner-city areas. Dr. Clark testified that in 1970, there were about six (6) or seven (7) census tracts that had a 95% black 0 to 17 age population, whereas, in 1990, there were only three (3) census tracts with a 95% black 0 to 17 age population.

Id.

at 33. Nevertheless, Dr. Clark emphasized that the tracts with a 50% black 0 to 17 age population increased by about 40% between 1970 and 1990.

Id.

at 33-34.

Dr. Clark testified that, the shifts in the inner-city populations made it very difficult to adjust attendance boundaries to maintain a student body composition within a plus or minus 20% range of the district-wide ratios.

Id.

at 35. Dr. Clark explained that, as the areas with a 50% black 0 to 17 age population expand, as it has done in the inner-city of Hillsborough County, each school within those areas is impacted.

Id.

According to Dr. Clark, as the School Board attempts to make adjustments to the schools within the areas with a 50% or greater black population, and because these areas have expanded to encompass many different school attendance zones, each adjustment makes it increasingly difficult for the School Board to make additional adjustments that will effectively improve the race ratios in the other schools in those areas.

Id.

Defendants’ Exhibit 8 geographically depicts the attendance zones of the racially imbalanced schools and clearly demonstrates that the schools which have become racially identifiable are located in the same vicinity as other schools with high black enrollments. Although there are additional adjustments which can be made to improve racial balance, the improvement would be at the expense of neighboring schools which are on the verge of becoming racially identifiable.

Dr. Clark analyzed fourteen (14) of the sixteen (16) schools which are racially imbalanced and grouped Robles, Cleveland, Edison, Oak Park, and Graham together because these schools became at least 40% black between 1970 and 1980. (Tr 2 at 36). The remaining schools were grouped because those schools deviated from the plus or minus 20% range between 1980 and 1990.

In 1970, the Robles attendance zone was comprised of 2,247 children between the ages of 0 to 17. (DX 2 Table 4). Only 292(13%) of those children were black.

Id.

In 1980, the Robles attendance zone was comprised of 2,496 children between the ages of 0 to 17.

Id.

During this time, 781 (31.3%) of those children were black.

Id.

Significantly, by 1990, the Robles attendance zone was comprised of 2,875 children between the ages of 0 to 17, by this time, 2054 (71.4%) of those children were black.

Id.

Dr. Clark emphasized that, while the total population of an area was not experiencing dramatic increases, the black population of school-aged children was increasing dramatically. Dr. Clark also pointed out that the satellite zone originally assigned to Robles was only 0 to 5% black school-aged children. However, in 1990, the satellite area, although no longer maintained, was almost entirely 75-95% black school-aged children and would have further increased the proportion of black students enrolled at Robles if it had not been removed. (T2 at 46);(DX 2 Table 4; Figure 10).

In 1970, Cleveland’s attendance zone was comprised of 1,657 children ages 0 to 17. (DX 2 Table 4). During this time, only 46 (2.8%) of these school-aged children were black.

Id.

In 1980, the number of school-aged children in the attendance zone decreased to 1,544; however, by this time, 639 (41.3%) of the school-aged children were black.

Id.

In 1990, the number of school-aged children in Cleveland’s attendance zone increased slightly to 1,578, and the black school-aged population increased to 654 (41.4%).

Id.

Dr. Clark explained that in 1970, there were a few blocks with in Cleveland’s attendance zone that were between 0 and 5% and a few blocks that were comprised of between 5 and 25% black school-aged children. (Tr 2 at 40). By 1980, the black school-aged population was still concentrated in the same few blocks; however, by this time, those blocks were comprised of between 75 to 95% black school-aged children.

Id.

at 41. In 1990, those few blocks were not as concentrated with a black school-

*1298

aged population; however, the population spread out through a large number of blocks which were primarily 50 to 75% black 0 to 17 year old children. Moreover, black school-aged children made up of 95 to 100% of some of the neighborhood blocks closest to the school.

Id.-,

(DX2 Figure 6).

Dr. Clark’s testimony and report on the Demographic Change and School District Impacts in Hillsborough County (DX 2) highlights the changes in the attendance zones for the racially imbalanced schools. Dr. Clark described the increases in the black school-aged children in the attendance zones and concluded that the shift in the residential patterns in the inner-city of Hillsborough County accounts for the racial imbalances in these schools. Notwithstanding, the Court is compelled to question the reliability of Dr. Clark’s statistics.

There are significant problems with the statistics used to explain the racial imbalances in the sixteen (16) schools under consideration. Defendants’ statistics encompass a larger segment of the population than is useful to explain the deviations in the racial compositions of the unbalanced schools. Specifically, Defendants rely on Dr. Clark’s use of school-aged children from ages 0-17 to explain enrollment ratios at the elementary schools; however, almost one-half of the children included in this group would not, in fact, be attending an elementary school.

23

Moreover, while a few blocks in an attendance zone may reflect black school-age populations as high as 95%, those few blocks only represent a small proportion of the entire attendance zone. Finally, Dr. Clark’s analysis does not address Defendants’ initial decisions to draw attendance zones, decisions not to act when it was apparent that those zones were inappropriate, or other School Board decisions, such as, location of new schools, or implementation (or lack thereof) of desegregation tools.

(ii)

Inflated Statistics

The sweeping nature of Defendants’ statistics is of particular concern. Dr. Clark’s testimony placed great emphasis on the increase in the percentage of neighborhood blocks which were comprised of a high concentration of black school-aged children within each of the schools’ attendance zones. However, these statistics alone fail to adequately explain the racial compositions in these schools. For example, if the attendance zone is made up of fifty (50) neighborhood blocks, and three (3) of those blocks are 95 to 100% black, this still represents a small number of black students within the attendance zone. Moreover, while a certain block may have been as high as 100% black, that block may have only had four (4) school-aged children living on that block. To intensify the problem, three (3) of those children may have been high school, rather than, elementary school-aged children. While the shortcomings of Defendants statistics do not evidence deliberate discriminatory action, Defendants “bear[] the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation.”

Freeman,

503 U.S. at 494 , 112 S.Ct. 1430 . Therefore, even though Defendants’ statistics may look significant at first glance, the Court is concerned about the reliability of those numbers.

A very real example is Dr. Clark’s testimony regarding Cleveland Elementary. Dr. Clark pointed out that, in 1970, a few blocks in the attendance zone were comprised of between 5 and 25% black students aged 0 to 17. The black enrollment at Cleveland was around 20% in 1971. Significantly, over the next couple of years, Cleveland’s black enrollment soared up to 40% and then, after a few more years, to 60%. (T2 at 40); (DX 2 Figure 6). Dr. Clark testified that, in 1970, there were a few blocks in Cleveland’s attendance zone which were between 0 and 5% black and a few blocks which were between 5 and 25% black. To explain the correlation between the black populations in these neighborhood blocks and the black enrollment at Cleveland Elementary, Dr. Clark testified that, “[s]o that’s — we would expect, then, that — if those children are going to the school there, we would expect the school to be somewhat in that range, and indeed it is. That’s about what the percentage of black

*1299

enrollment is, and we’re seeing it in the school.” (T2 at 41). In other words, Dr. Clark concluded that, because there were a few neighborhood blocks in Cleveland’s attendance zone that were as concentrated as 25% black, it explains why the black enrollment at Cleveland Elementary was around 20% in 1971 and then continued to climb as the concentration in the blocks increased. Interestingly, the

entire

attendance zone was comprised of only 46 (2.8%) black school-aged children during this time.

A cursory inspection of Dr. Clark’s graphical representation of these figures, reveals that these blocks with a high concentration of black school-aged students, represent a small portion of the entire attendance zone.

24

See

(DX2 Figure 6). Moreover, Dr. Clark qualified his answer by saying, “if those children are going to the school there.” However, in all likelihood, there would be several children who are outside of the

elementary school

age group; therefore, they would not, in fact, be attending that school. The fact that a small portion of the attendance zone has a high percentage of minority school-aged children does not explain why the

total black enrollment

of those elementary schools correlates to those few blocks with high percentages of minorities; especially since a percentage of those children in the attendance zone would not be attending the school in question.

25

Furthermore, it should have been quite easy for Defendants to make adjustments to combat the sudden increases in minority enrollment if the increases resulted from a few concentrated blocks within the attendance area.

26

Granted, in 1990, the percentage of black school-aged children in Cleveland’s attendance zone had increased dramatically and the number of blocks with a majority of black school-aged children has increased; however, the same deficiencies are present in Dr. Clark’s analysis and twenty (20) years had passed since Defendants received the directive to desegregate the Hillsborough County school system. These findings weigh heavily against Defendants’ assertion that they responded affirmatively to the Court’s desegregation mandates.

The racial composition at Robles is also illustrative of the deficiencies in Dr. Clark’s explanation. For instance, in 1970, Robles’ entire attendance zone was comprised of 2,247 children ages 0 to 17. During this time, only 292(13%) of these 0 to 17 year old children were black. However, the black enrollment at Robles Elementary in the early 1970’s rose from around 20% to 30%. In 1980, the number of school-aged children in the attendance zone increased to 2,496. By this time, 781 (31.3%) of the school-aged children were black. However, black enrollment at Robles in the early 1980’s was between 50 and 60%, and climbing. In 1990, the number of school-aged children in Robles’ attendance zone increased to 2,875, and the black school-

*1300

aged population increased to 2054 (71.4%). However, black enrollment at Robles was over 80% black in 1990 and was approaching 90%.

Certainly, the significant increase in black school-aged children residing in Robles’ attendance zone over the course of this litigation explains why the black enrollment in that school continued to increase. However, even if the Court were able to ignore the deficiencies in Dr. Clark’s statistics which he used to explain the increase in black students at the elementary school level, the abiding question is: why wasn’t the attendance zone adjusted, at least, initially?

27

Although Dr. Clark testified that various neighborhood blocks within the attendance zone had high percentages of black school-aged students, Defendants have not provided the Court with information on how many of those students actually attended elementary school. Significantly, in 1980, black school-aged students comprised only 31.3% of Robles’

entire

attendance zone; however, the

actual

enrollment at Robles during the 1980-1981 school year was 51% black. Notably, Defendants took no affirmative steps to address the fact that Robles had now crossed the 50% mark and no longer reflected the ideal composition suggested by the Court. Especially since the

entire

attendance zone was only 31.3% black and the

elementary school

was already 51% black.

Plaintiffs’ Expert

Plaintiffs’ expert, Dr. Shelley, studied the disparities between the percentage of black children 0 to 17 years old and the actual black enrollment in the five (5) schools which became racially unbalanced in the 1970s. Dr. Shelley subtracted the percentage of black children 0 to 17 years old living in a particular attendance zone from the percentage of black children actually attending the .elementary school in that zone. (T4 at 51). For example, in 1970 Cleveland Elementary’s attendance zone was comprised of 2.8% black children, but the actual attendance at Cleveland for the 1971-1972 school year was 18% black. Thus, Dr. Shelley testified that the difference between these two percentages represents a disparity of approximately 15%. During the 1971-1972 school year, the disparities were as follows: Cleveland (15%), Edison (17%) Graham (10%), Oak Park (15%), and Robles (12%). In 1980, the disparities among these same schools were as follows: Cleveland (24%), Edison (14%) Graham (17%), Oak Park (4%), and Robles (20%). Finally, the disparities in 1990 were: Cleveland (13%), Edison (-2%) Graham (28%), Oak Park (4%), and Robles (14%). (PX2 Table 5).

Dr. Shelley testified that if natural demographic change was the cause of the racial imbalance in these schools, it would be reasonable to expect that the disparities would be consistent at these schools. (T4 at 53). In other words, if the natural demographic changes were the only cause of imbalance in these schools, the amount that the

actual

attendance of black students exceeds the

total

number of black children in each attendance zone would be fairly consistent from one school to another.

Id

at 56. Dr. Shelley explained that if demographic change is the cause of these imbalances, then “there is no reason to believe that the demographic factors such as birth rates are likely to differ substantially from one attendance area to another.”

Id.

at 57. Moreover, Dr. Shelley noted, “[wjithout evidence that there’s a substantial disparity between these school attendance areas in terms of things like birth rates, we would expect there to be a consistent pattern of difference between the school attendance areas among these identifiable schools.”

Id.

Dr. Shelley testified that the degree of disparity during the 1971-1972 school year was relatively small.

Id

at 58. The range was from Graham with 10% to Edison with 17%. Dr. Shelley explained that this 7% difference was the degree of consistency that he expected, because it should have been, and remained, consistently small.

Id.

Notably, this was only one (1) year after the desegregation Order was issued, and, undoubtedly, the best year, in terms of desegregation, for the Hillsborough County school

*1301

system with regards to student assignments. However, by 1980, the disparity increased to a range of 4% (Oak Park) to 24% (Cleveland).

Id.

By 1990, the disparity increased from - 2% (Edison) to 28% (Graham).

Id.

Dr. Shelley testified that, unless the rates for births, deaths, migration, and other factors increased dramatically by attendance zone, there should not have been a dramatic increase in these disparities.

Id.

Although Defendants provided evidence that birth rates among African-Americans had increased disproportionately to those of whites, according to Dr. Shelley, the increase should have still produced consistent results among all African-Americans in these attendance zones.

Unfortunately, Defendants have taken the position that they were not required to make any adjustments if the School Board had not caused the-racial imbalance. While this may be an appropriate legal argument to advance in unitary status proceedings in 1996, it appears as though Defendants imprudently incorporated this argument into their policy making since the 1970’s. However, a party to a court order or decree must abide by its terms until it is later declared improper or unconstitutional. Defendants have always been charged with the obligation to eliminate the vestiges of past discrimination to the maximum extent practicable.

See Davis v. Board of School Commissioners of Mobile County,

402 U.S. 33, 37 , 91 S.Ct. 1289 , 28 L.Ed.2d 577 (1971)(“Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.”)(emphasis added);

Green v. County School Bd. of New Kent Co.,

391 U.S. 430, 437-38 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968)(“School boards ... operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”)(emphasis added). Furthermore, the Supreme Court has stated that, “[t]he remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.”

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1, 28 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971). However, since the 1970s, Defendants have taken the position that they were not obligated to take additional steps in certain circumstances. In other words, the School Board unilaterally determined that they were not responsible for the racial imbalances; therefore, there was no need to take affirmative steps.

Although Defendants did not continue to employ aggressive desegregative techniques once the race ratios reflected the district-wide ratio, Defendants continued to “consider” the racial compositions of the schools as decisions were made. However, despite the fact that Defendants may have been successful in desegregating the school system, they are obligated to make affirmative efforts to desegregate until unitary status is declared. With regards to student assignments, affirmative efforts would have included reassigning students, rezoning, marketing the majority to minority programs, etc. The Court acknowledges that Defendants have made affirmative efforts to a limited extent; however, Defendants’ failure to adequately address the racial imbalances which developed in the elementary schools relatively soon after the desegregation plan was implemented, does not exhibit a good faith commitment to desegregation.

28

In other words, regardless of the cause of the imbalances, until Defendants sought a determination through the proper judicial channels, they were obligated to address these racial imbalances pursuant to the Court’s orders. Moreover, the fact that a school system resists resegregation fortuitously, does not demonstrate good faith compliance with the Court’s orders.

Without reiterating all of the abovemen-tioned concerns for Edison, Graham, and Oak Park, the Court will merely emphasize the

*1302

statistics the Court finds important. In 1970, Edison had 1,788 school-aged children in its attendance zone, 343 (19.2%) were black. The actual racial composition for the 1972-1973 school year was 36% black and 64% white. By 1980, 584 (39.9%) of the 1,463 total school-aged students in Edison’s attendance zone were black. The actual racial composition for the 1980-1981 school year was 55% black and 45% white. By 1990, Edison’s attendance zone included 836 school-age students, 590 (70.5%) were black. The actual racial composition of students in attendance for the 1990-1991 school year was 69% black and 31% white.

In 1970, Graham had 1,687 school-aged children in its attendance zone, 374 (22.2%) were black. The actual racial composition for the 1972-1973 school year was 35% black and 65% white. By 1980, 462 (35.9%) of the 1,288 total school-aged students in Graham’s attendance zone were black. However, the actual racial composition for the 1980-1981 school year was already 52% black and 48% white. By 1990, Graham’s attendance zone included 1,220 school-age students and 523 (42.9%) were black. The actual racial composition of students in attendance for the 1990-1991 school year was 68% black and 32% white.

In 1970, Oak Park had 1,649 school-aged children in its attendance zone, but only 117 (7.1%) children were black. The actual racial composition for the 1972-1973 school year was 23% black, more than three (3) times the total number of black children 0 to 17 years old in Oak Park’s attendance zone. By 1980, 664(39%) of the 1,703 total school-aged students in Oak Park’s attendance zone were black. The actual racial composition for the 1980-1981 school year was 43% black and 57% white. By 1990, Oak Park’s attendance zone included 1,580 school age students and 897 (56.8%) were black. The actual racial composition of students in attendance for the 1990-1991 school year was 61% black and 38% white.

As discussed above, the percentages of school-aged children in an elementary school’s attendance zone, naturally, overstated the actual percentages of students who were elementary school-age students. Notwithstanding, the actual black enrollment at the five (5) elementary schools discussed above almost exclusively exceeded the total number of school-aged students in the entire attendance zone. Since the

total

number of school-aged students in the attendance zones was an overstatement of

actual

attendees at the elementary schools at issue, and because the percentage of black school children actually attending each school almost always exceeded the “overstated” percentages, the Court is hesitant to accept Defendants’ argument that a shift in demography is the sole cause the imbalance in these elementary schools.

29

Moreover, Plaintiffs have provided evidence that the discrepancies were not caused solely by a shift in demography. Defendants’ failure to act affirmatively in light of these deviations necessitates continued supervision.

Interestingly, the parties focus almost exclusively on these sixteen (16) schools which have high percentages of black students in attendance. However, there is a significant number of other schools in which the racial compositions are disproportionate with the system-wide ratio. The fact that Plaintiffs failed to make much of this point is of no concern for the Court. The school system must be evaluated as a whole. In 1971, the Court expressed, in great detail, its concerns for all segregated schools. While the focus thus far has been on schools which have become racially identifiable as “black schools,” the fact that there are numerous other schools which are virtually all “white” schools is equally concerning. The Court is concerned with every school which is becoming a one-race school. Although a school which is 90% white only deviates approximately 10% from the district-wide ratio, it is also only 10% from becoming an absolute one-race school.

In the May 11, 1971, Order, this Court explained that, “[i]t was the Supreme Court’s

*1303

view that while the existence of a small number of one-race schools is not a sure mark of a segregated system, in systems with a history of discrimination there is ‘a presumption against schools that are substantially disproportionate in their racial composition.’ ” (1971 Order at 32)(quoting

Swann,

402 U.S. at 26, 91 S.Ct. 1267 ). The Court also noted that of the seventy-nine (79) schools which the State Department of Education listed as white in a 1956 survey, in 1971, thirty-eight (38) were all or at least 95% white.

Id.

at 36, 91 S.Ct. 1267 . According to Defendants’ Exhibit 7, on October 24, 1994, there were eighteen (18) schools which were 90% or more white. Five (5) of those schools were 93% or more white. (DX 7). By October 30, 1995, twenty-four (24) schools were 90% or more white. Eight (8) of those schools were 93% or more white. (DX 7). By October 30, 1996, there were still twenty-four (24) schools which were greater than 90% white. Significantly, three (3) elementary schools had become 99% white and one (1) had become 97% white. At the junior high level, one (1) school had become 96% white and one (1) school had become 95% white. Consequently, the existence of these virtually one-race schools reveals that there were additional opportunities for Defendants to demonstrate a good faith commitment to desegregation.

Although Dr. Clark’s report and testimony encompasses a degree of unreliability, based on the totality of the evidence, a shift in demographics is a substantial cause of the racial identifiability in Hillsborough County’s schools. Plaintiffs’ expert agreed that demographics have played a significant role in Hillsborough County; however, he asserted that additional factors should be considered and that it is premature to attribute racial imbalance in the schools to natural demographic change until the 2000 census is available. While the Court finds a lack of good faith commitment to desegregation by Defendants, the Court is not suggesting that all racial imbalance should, or could, have been eliminated. It is probable that these few schools would have become racially imbalanced regardless of Defendants’ efforts. However, the degree and magnitude of the racial imbalance could have been lessened if Defendants had acted affirmatively over the last twenty-seven (27) years. Unfortunately, with the passage of time, the availability and effectiveness of remedies diminishes.

30

The second group of schools studied by Dr. Clark included: Cahoon Elementary, Clair Mel Elementary, Foster Elementary, Shaw Elementary, Sulphur Springs Elementary, West Tampa Elementary, Witter Elementary, Dowdell Junior High, and Van Burén Junior High. These schools were grouped together because they deviated plus or minus 20% from the system-wide ratios between 1980 and 1990. (T2at36).

Cahoon

Elementary

31

In 1980, Cahoon’s attendance zone was comprised of 1,882 children ages 0 to 17. During this time, 396(21%) of these school-aged children were black. During the 1979-1980 school year, Cahoon’s actual racial composition was 28% black and 72% white. There was a boundary change implemented for the 1980-1981 school year which slightly reduced the percentage of black school children to 27%. However, in the 1986-1987 school year, the boundary change implemented increased the percentage of black students to 38%, from 33% the previous school year. In 1990, the number of school-aged children in the attendance zone increased to 2,015; however, by this time, 677 (33.5%) of the school-aged children were black. The actual racial composition for the 1990-1991 school year was 38% black and 62% white. During the 1991-1992 school year, the actual racial composition for Cahoon was 41% black and 59% white. The actual racial composition of students in attendance at Cahoon for the 1995-1996 school year was 52% black and 48% white.

Clair Mel Elementary

In 1980, Clair Mel’s attendance zone was comprised of 3,211 children ages 0 to 17. During this time, only 523 (16.3%) of these school-aged children were black. During the

*1304

1979-1980 school year, Clair Mel’s actual racial composition was 27% black and 73% white. During the 1985-1986 school year, the actual racial composition of students in attendance was 35% black and 65% white. In 1990, the number of school-aged children in the attendance zone decreased to 2,832; however, by this time, 1,112 (55.1%) of the school-aged children were black. The actual racial composition for the 1990-1991 school year was 41% black and 59% white. The actual racial composition of students in attendance at Clair Mel for the 1995-1996 school year was 49% black and 51% white.

Foster Elementary

In 1980, Foster’s attendance zone was comprised of 1,397 children ages 0 to 17. During this time, 438 (31.3%) of these school-aged children were black. During the 1979-1980 school year, Foster’s actual racial composition was 36% black and 64% white. During the 1984-1985 school year, a sixth grade was added to Foster and one (1) white and fifty-two (52) black students were transferred from Foster to Lopez. In addition, Foster received fifty-four (54) white and twenty (20) black students from Orange Grove Elementary. Defendants assert that this transfer was implemented to accommodate the new sixth grade at Foster and to relieve the racial imbalances developing. During the 1984-1985 school year, the actual racial composition of students in attendance was 29% black and 71% white. In 1990, the number of school-aged children in the attendance zone decreased to 1,215; however, by this time, 637 (52.4%) of the school-aged children were black. The actual racial composition for the 1990-1991 school year was 46% black and 54% white. The actual racial composition of students in attendance at Foster for the 1995-1996 school year was 61% black and 39% white.

Shaw Elementary

In 1980, Shaw’s attendance zone was comprised of 2,330 children ages 0 to 17. During this time, only 312 (13.4%) of these school-aged children were black. During the 1979-1980 school year, Shaw’s actual racial composition was 17% black and 83% white. During the 1985-1986 school year, the actual racial composition of students in attendance was 31% black and 69% white. In 1990, the number of school-aged children in the attendance zone increased to 2,696; however, by this time, 911 (33.8%) of the school-aged children were black. The actual racial composition for the 1990-1991 school year was 38% black and 62% white. The actual racial composition of students in attendance at Shaw for the 1995-1996 school year was 56% black and 44% white.

Sulphur Springs Elementary

In 1980, Sulphur Springs’ attendance zone was comprised of 1,600 children ages 0 to 17. During this time, only 242 (15.1%) of these school-aged children were black. During the 1979-1980 school year, Sulphur Springs’ actual racial composition was 28% black and 72% white. During the 1985-1986 school year, the actual racial composition of students in attendance was 44% black and 56% white. In 1990, the number of school-aged children in the attendance zone increased to 2,771; however, by this time, 1,431 (51.6%) of the school-aged children were black. The actual racial composition for the 1990-1991 school year was 62% black and 38% white. The actual racial composition of students in attendance at Sulphur Springs for the 1995-1996 school year was 74% black and 26% white.

Witter Elementary

In 1980, Witter’s attendance zone was comprised of 1,523 children ages 0 to 17. During this time, only 267 (17.5%) of these school-aged children were black. During the 1979-1980 school year, Witter’s actual racial composition was 23% black and 77% white. During the 1985-1986 school year, the actual racial composition of students in attendance was 32% black and 68% white. In 1990, the number of school-aged children in the attendance zone increased to 1,809; however, by this time, 743 (41.1%) of the school-aged children were black. The actual racial composition for the 1990-1991 school year was 46% black and 54% white. The actual racial composition of students in attendance at Witter for the 1995-1996 school year was 54% black and 46% white.

West Tampa Junior High/

Elementary

32

In 1980, West Tampa’s attendance zone was comprised of 1,465 children ages 0 to 17.

*1305

During this time, only 305

(20.8%) of these

school-aged children were black. During the 1979-1980 school year, West Tampa’s actual racial composition was 21% black and 79% white. During the 1985-1986 school year, the actual racial composition of students in attendance was 20% black and 80% white. For the 1986-1987 school year, West Tampa began serving grades K through 6. Defendants were required to implement numerous adjustments to complete this conversion. The actual racial composition of students in attendance at the “old” West Tampa Middle School before these changes were made was 25% black and 75% white. After these changes were made, the actual composition of students at the “new” West Tampa Elementary School for the 1987-1988 school year was 47% black and 53% white. For the 1988-1989 school year, twenty (20) white sixth graders were transferred from Lock-hart to West Tampa which lowered the percentage of black students to 42%. In 1990, the number of school-aged children in the attendance zone decreased to 1,379; however, by this time, 436 (31.6%) of the school-aged children were black. The actual racial composition for the 1990-1991 school year was 44% black and 56% white. The actual racial composition of students in attendance at West Tampa for the 1995-1996 school year was 47% black and 53% white.

Dowdell Junior High School

In 1980, Dowdell’s attendance zone was comprised of 7,494 children ages 0 to 17. During this time, 2,070 (27.6%) of these school-aged children were black. During the 1979-1980 school year, Dowdell’s actual racial composition was 22% black and 78% white. During the 1985-1986 school year, the actual racial composition of students in attendance was 37% black and 63% white. In 1990, the number of school-aged children in the attendance zone increased to 6,572; however, by this time, 2584 (39.3%) of the school-aged children were black. The actual racial composition for the 1990-1991 school year was 41% black and 59% white. The actual racial composition of students in attendance at Dowdell for the 1995-1996 school year was 49% black and 51% white.

Van Burén Junior High School

In 1980, Van Buren’s attendance zone was comprised of 10,998 children ages 0 to 17. During this time, only 1, 613 (14.7%) of these school-aged children were black. During the 1979-1980 school year, Van Buren’s actual racial composition was 28% black and 72% white. During the 1985-1986 school year, the actual racial composition of students in attendance was 30% black and 70% white. In 1990, the number of school-aged children in the attendance zone increased to 12,583; however, by this time, 4983 (39.6%) of the school-aged children were black. The actual racial composition for the 1990-1991 school year was 42% black and 58% white. The actual racial composition of students in attendance at Van Burén for the 1995-1996 school year was 53% black and 47% white.

A study of the nine (9) schools which became more than 40% black in the second decade since the desegregation Order was issued reveals that the disparities between the percentages of black school-aged children in the attendance zones and the actual enrollment of black students are not as dramatic as the five (5) schools which became 40% black within the first decade. Nevertheless, the actual percentages of black students attending these nine (9) schools exceeded the total number of black children 0 to 17 years old in the attendance zones in virtually every instance. However, as discussed above, the failure to actively address these imbalances is more relevant to Defendants’ good faith compliance with the Court’s orders, rather than to the issue of whether Defendants currently have desegregated student assignments. Importantly, the fact that these schools did not become racially unbalanced until the 1980s provides support for Defendants’ contention that gradual expansion of the black school-aged population caused the racial imbalance in these schools. “As the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system.”

Freeman v. Pitts,

503

*1306

U.S. 467, 496, 112 S.Ct. 1430 , 118 L.Ed.2d 108 (1992). However, the

Freeman

Court noted that, “[t]he causal link between current conditions and the prior violation is even more attenuated if the district has demonstrated its good faith.”

Id.

Defendant’s other expert, Dr. Armor, testified about student race ratios within Hills-borough County. In addition, Dr. Armor summarized his findings in a report which was admitted into evidence as Defendants’ Exhibit 1. Similar to the Court’s definition of racially identifiable, Dr. Armor defined “racially balanced” schools as those schools that are within a plus or minus 20% variance from the district-wide racial composition. (DX 1 at 5). Dr. Armor indicated that prior to the Court’s 1971 Order, only 12% of black students and 56% of white students attended racially balanced elementary schools. (DX 1 App. 1 ). During the first three (3) years of Defendants’ desegregation efforts, 97 to 98% of black students and 99% of white students were in racially balanced schools. (T3 at 23). The percentage of white students that attended racially balanced schools remained above 90% through 1995, with the lowest percentage being 92%. (DX 1 App. 1 ). The percentage of black students attending racially balanced schools remained above 80% until 1989, was between 77% and 79% from 1989 through 1991, and since then, has remained around 70%.

Id.

Dr. Armor noted that “Hillsborough County has had a greater percentage of elementary students in racially balanced schools, and for longer durations, than any other districts I have evaluated in the Eleventh Circuit: DeKalb County, Savannah, and Muscogee County, Georgia.” (DX1 at 5).

With regards to the junior and senior high schools, Dr. Armor reported:

Charts 2 and 3 [which are appended to the report] show the percentage of junior and senior high students in racially balanced schools. Again, only 31 percent of black junior high and 54 percent of black senior high students were in racially balanced schools in 1970 before the court-ordered plan. Between 1971 and the mid-1980s, however, the rate reaches 100% in most years. Over 80 percent of black junior high students were in racially balanced schools until 1993, and all of the high schools have been balanced for the past three years. These rates for secondary schools are better than or comparable to other unitary school districts I have studies (sic).

(DX 1 at 6). In 1994, 79% of the black junior high school students attended racially balanced schools and in 1995, the percentages dropped to 75%.

Id.

From 1993 through 1995, 100% of the high schools were racially balanced.

Dr. Armor also testified about the dissimilarity and exposure indices for schools in Hillsborough County. A dissimilarity index is a statistical measure of the degree of racial balance. On a scale from zero (0) to one hundred (100), zero (0) represents perfect racial balance, i.e., a racial balance equal to the district-wide composition, and one hundred (100) represents a system with all one-race schools. (T3 at 27). Dr. Armor explained that the numbers in between correspond to the approximate proportion of students (both races) that would have to change schools in order to achieve a perfect racial balance, i.e., 23% black and 77% white.

Id.

According to Dr. Armor, any number below 30 indicates a very high degree of racial balance.

Id.

On the other hand, the exposure index is the average percentage of white students in schools attended by black students.

Id.

at 29 . Dr. Armor explained that it can be thought of as being a measure of the potential racial contact that black students experience in Hillsborough County.

Id.

Dr. Amor reported that:

In 1970, the dissimilarity index is very high at 83, which is about average for southern schools districts at that time. The index drops below 20 between 1971 to 1973, which is about as low as it gets in large districts. The index increases gradually over the next twenty years, but it remains below 30 until 1991. For comparison purposes, the average dissimilarity index for large southern districts with mandatory desegregation plans was about 35 during the 1980s.

The exposure index remains within ten points of its maximum value until the mid-1980s, but even at the present time it is 63,

*1307

which means that the average black student attends a school that is 63 percent white. In contrast, national figures show that the average exposure index for large southern districts had fallen below 50 by 1990, in large part because of white flight and falling enrollments.

(DX1 at 6). Dr. Armor explained that there is a greater degree of desegregation at the junior and senior high schools. “The exposure index is 70 or higher at the present time, and the dissimilarity index has remained below 30 since the beginning of the desegregation plan.”

Id.

Consequently, Dr. Armor concluded that the district-wide figures demonstrate that, “the district has maintained a very high degree of desegregation up to the present time. Hillsborough County has higher levels of desegregation than the average large southern district, and it has higher levels of desegregation than other districts which have been declared unitary in the Eleventh Circuit.”

Id.

at 7 .

Dr. Armor also studied the student race ratios at all schools whose enrollments fell outside of the plus or minus 20% variance (whether or not it fell outside at the time he conducted his studies) for two (2) or more years between 1971 and 1995.

Id.

There were only twenty-two (22) schools, out of nearly 150 regular schools in the district, and only 15(10%) of the district schools were outside of the variances as of October 1995.

33

Id.

Dr. Armor noted that none of the schools which were over 40% black as of October 1995, had been a former black school and none of these schools had a majority black enrollment before the 1971 Order.

Id.

at 7 . Dr. Armor also emphasized that all of the schools that are over 40% black, except one (1), are located in the areas that Dr. Clark testified have experienced a substantial demographic change in the form of increasing black populations.

Id.

In his analysis of the twenty-two (22) schools, Dr. Armor included a review of boundary changes that had the potential to affect racial composition by more than two (2) or three (3) percentage points. Dr. Armor compared the actual racial composition before the change to the projected racial composition after the change.

Id.

Dr. Armor concluded that the shift in demographics outlined by Dr. Clark explains why these schools moved outside of the plus or minus 20% range and that, despite the school board’s efforts to improve racial balances, the boundary changes played a “relatively minor role in the racial composition of these schools, being completely overwhelmed by demographics.” (DX 1 at 11). Moreover, 'Dr. Armor testified that, “none of the schools that were currently imbalanced or were imbalanced in the past were caused by board action. They were caused by demographics.” (Tr3-53). Dr. Armor concluded that, “the [School] Board did implement a highly effective desegregation plan that virtually desegregated the entire district to a very high degree of desegregation, as high as I’ve ever seen anywhere in this country, but especially in the south, and that it maintained that plan for a very long time.” (T3 at 49).

Plaintiffs expert, Dr. Shelley, also recognized that the boundary changes were not significant in improving racial compositions. Dr. Shelley reported that boundary changes have not consistently contributed to reducing racial imbalance. (PX2 at 9). Dr. Shelley indicated that half of the boundary changes affecting the racially imbalanced schools reduced the percentage of black students at that school and the other half, resulted in an increase. Dr. Shelley admitted that it is possible that a boundary change that improves racial balance in one (1) school could exacerbate racial imbalance in another.

Id.

However, Dr. Shelley opined that since Hills-borough County, as a whole, is not highly segregated, it should be possible to redraw boundary lines without adversely impacting neighboring schools.

Id.

at 17 .

Significantly, Dr. Shelley’s conclusions regarding redrawing boundaries were based solely on the five (5) elementary schools which became racially imbalanced between 1970 and 1980.

Id.

at 19 . While Dr. Shelley emphasized that the attendance

*1308

zones of these five (5) schools do not adjoin one another, he failed to evaluate the attendance zones of all the schools which do adjoin the racially unbalanced schools. Defendants' Exhibit 8 graphically depicts the attendance zones for the sixteen (16) racially unbalanced schools and clearly illustrates the difficulties in redrawing attendance zones. Undoubtedly, it would be possible to bus children across the county to ensure racial compositions that comport with the district-wide ratios; however, that would not be practicable and was not required by the Court's 1971 Order. Moreover, it is not required by the Constitution or governing law. Although affirmative steps are required to achieve the greatest practicable desegregation, heroic measures to ensure racial balance system-wide are not. See Freeman~ 503 U.s. at 493, 112 S.Ct. 1430 .

A distinction must be made between requiring Defendants to maintain specific race ratios and requiring Defendants to make affirmative efforts to desegregate the school system. It is clear that Defendants were not obligated to maintain specific race ratios at each school in the county. "Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system." Swann, 402 U.S. at 31-32, 91 S.Ct. 1267 . However, the Court is concerned that Defendants have not yet accomplished that affirmative duty. Defendants have an affirmative duty to eliminate the former dual school system. As noted above, the ultimate goal of a desegregation remedy is "a unitary, nonracial system of public education." Green, 391 U.S. at 436 , 88 S.Ct. 1689 . The school system no longer discriminates against school children on the basis of race when it affirmatively has eliminated all vestiges of state-imposed segregation. Id. at 435, 437-38 , 88 S.Ct. 1689 .

"What is involved here is the question whether the School Board has achieved the `racially nondiscriminatory school system' Brown II held must be effectuated in order to remedy the established unconstitutional deficiencies of its segregated system." Green, 391 U.S. at 437 , 88 S.Ct. 1689 . The inquiry is whether the School Board has taken steps adequate to abolish its dual segregated system. Id. The Supreme Court in Green explained that school boards which were "operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Consequently, until a school system has discharged its duty to convert the dual system to a unitary one, the School Board's duty remains in place.

34

However, the Supreme Court in Green was faced with a school district that had not yet implemented an effective desegregation plan.

Since Green, the Supreme Court has had numerous opportunities to evaluate the effectiveness of desegregation plans which had already been implemented. In Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 , 96 S.Ct. 2697 , 49 L.Ed.2d 599 (1976) and Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971), the Supreme Court emphasized that, once a school system has achieved unitary status, a court may not order further relief to counteract resegregation that does not result from the School Board's discriminatory acts.

35

The Pasadena case involved the appropriateness of the district court's requirement that the desegregation plan contain provisions insuring that minorities could never become the majority at any of the district's schools. Id. at 432, 96 S.Ct. 2697 . Although

*1309

the Court in

Pasadena

only confronted “the question of whether the District Court was correct in denying relief when [the school district] in 1974 sought to modify the ‘no majority’ requirement as then interpreted by the District Court[,]” the Court reiterated the scope of permissible judicially created relief which is available to remedy violations of the Fourteenth Amendment.

Id.

at 432, 434 , 96 S.Ct. 2697 . The

Pasadena

Court explained that the district court had no authority to impose such an inflexible requirement when the subsequent changes in the racial composition of the schools might be caused by factors for which the school district could not be considered responsible.

Id.

at 434 , 96 S.Ct. 2697 . However,

Pasadena

cannot be applied as broadly as Defendants suggest.

The

Pasadena

Court held that, because the school district had obtained the objective of racial neutrality in its school attendance pattern when its desegregation plan was initially implemented, the district court could not require the school district to rearrange its attendance zones each year in order to ensure that the racial mix desired by the court was maintained in perpetuity. 427 U.S. at 436 , 96 S.Ct. 2697 . The Court explained that, “once [the school district] implemented a racially neutral attendance pattern in order to remedy the perceived constitutional violations ..., the District Court had fully performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns.”

Id.

at 437 , 96 S.Ct. 2697 .

Significantly, the

Pasadena

Court cautioned against applying its rulings generally. The

Pasadena

Court explained that it was error to enforce the district court’s order to “require annual readjustment of attendance zones so that there would not be a majority of any minority in any Pasadena public school.”

Id.

at 435 , 96 S.Ct. 2697 . Subsequently, the Supreme Court distinguished the inflexible portion of the plan in that case from desegregation plans involving an evaluation under governing case law.

Id.

The

Pasadena

Court explained:

[I]t is important to note what this case does not involve. The “no majority of any minority” requirement with respect to attendance zones did not call for defendants to submit “step at a time” plans by definition incomplete at inception. Nor did it call for a plan embodying specific revisions of the attendance zones for particular schools, as well as provisions for later appraisal of whether discrete individual modifications had achieved the “unitary system” required by Brown. The plan approved in this case applied in general terms to all Pasadena schools, and no one contests that its implementation did, “achieve a system of determining admission to the public schools on a nonracial basis.”

Id.

(internal citations omitted).

In order to align the instant case with

Pasadena

and

Swann,

with regards to student assignments, it must be clear that: (1) the implementation of Defendants’ desegregation plan established a racially neutral system of student assignment in Hillsborough County; and (2) any posW.971 changes in the racial composition of the schools in Hills-borough County were not in any manner caused by segregative actions chargeable to Defendants. *

In the case at hand, the parties do not dispute that all of the schools in Hillsborough County were desegregated as of the 1971-1972 school year. As of October 27, 1971, there were no majority black schools among the school district’s 122 schools and only one (1) school, Lee Elementary, had more than a 40% black student population. Moreover, Plaintiffs do not assert that Defendants’ system of student assignments continued to segregate students after the desegregation plan was initially implemented. Plaintiffs did not file any written objections in this case concerning the actual or projected enrollments of any school in Hillsborough County for more than twenty-two (22) years after the 1971 desegregation plan was implemented. Plaintiffs failed to object to the racial compositions developing in the school system, despite the fact that Lee Elementary had become more than 50% black and Cleveland, DeSoto, Edison, and Gary Elementary had become more than 40% black as early as 1974. Moreover, Plaintiffs did not file their first objections to projected racial enrollments until June 1994. Plaintiffs’ inaction

*1310

indicates that there were no perceived violations of the 1971 Order.

There is no indication that the racial identity of the schools in. Hillsborough County has been deliberately caused by seg-regative policies or practices by Defendants. Nevertheless, there is a presumption that the racial imbalance is traceable to the prior

de jure

dual system and Defendants must prove otherwise. The Court suspects that Defendants’ inaction has contributed to the degree of racial unbalance in the school system. Notably, the 1971 Order was required because the School Board refused to act after the Supreme Court decided

Brown I

and

Brown II

in the 1950s. Importantly, the Supreme Court has emphasized that a mere racially neutral assignment plan may be inadequate.

Swann,

402 U.S. at 28, 91 S.Ct. 1267 . A neutral student assignment system will be insufficient if it “fail[s] to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain artificial racial separation.”

Id.

at 28 , 91 S.Ct. 1267 . While the Court acknowledges that a race neutral attendance pattern was implemented in the case at hand, Court supervision remains necessary. Neutrality alone is not sufficient.

“The district judge or the school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools.”

Swann,

402 U.S. at 26, 91 S.Ct. 1267 (emphasis added). While the effective implementation of a desegregation plan may satisfy an element of the school districts’ obligation under a desegregation order or consent decree, the courts’ supervisory responsibility remains until a school board has: (1) eliminated the vestiges of past discrimination to the extent practicable; (2) exhibited a record of full and satisfactory compliance with the decree; and (3) “demonstrated to the public and the parents of the once disfavored race, its good faith commitment to the whole of the court’s decree and to those provisions of the laws and the constitution that were the predicate for judicial intervention in the first place.”

See Lockett v. Board of Education of Muscogee County School Dist.,

92 F.3d 1092 , 1098 (11th Cir.1996)(quoting

Freeman,

503 U.S. at 491 , 112 S.Ct.

("Lockett

I”);

Lockett v. Board of Education of Muscogee County School Dist.,

111 F.3d 839, 842 (11th

Cir.1997)(“Lockett II").

“[O]ne of the prerequisites to relinquishment of control in whole or in part is that a school district has demonstrated its commitment to a course of action that gives full respect to the equal protection guarantees of the Constitution.”

Freeman v. Pitts,

503 U.S. 467, 490 , 112 S.Ct. 1430 , 118 L.Ed.2d 108 (1992).

“Once [Defendants] implemented a racially neutral attendance pattern in order to remedy [the specific] perceived constitutional violations on the part of the Defendants, [this Court] had fully performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns.”

See Pasadena,

427 U.S. at 437 , 96 S.Ct. 2697 . However, Defendants were not relieved from their obligations once a means to an end was implemented.

36

[A] school district does not escape its obligation to make affirmative efforts to remedy racial imbalances simply because the imbalances are caused by circumstances “over which [the school district] has no control”; instead, while under court supervision the school district must make efforts to eradicate all imbalances which are traceable to prior de jure segregation.

Lockett v. Board of Education of Muscogee County School Dist.,

92 F.3d 1092 (11th Cir.1996) (citing

Freeman,

503 U.S. at 491 , 112 S.Ct. 1430 ). The School Board’s obligations remain until the Court finds that the racial imbalances are not traceable to prior

de jure

segregation. Significantly, such a determination has not been made in the case at hand.

In

Lockett

I, the Eleventh Circuit entertained arguments which were similar to those advanced by the parties in the instant case. The school district initially implemented stu

*1311

dent reassignment and attendance zone adjustments which effectively achieved its goal of proportionate student representation, pursuant to the district court’s 1971 desegregation Order.

Id.

at 1095. Throughout the 1970s, the school district maintained consistent statistical racial compositions within its schools.

Id.

at 1096. During the same period, the racial compositions of faculty and staff within most of the district’s schools reflected the county-wide averages.

Id.

However, by the end of the 1970s, the school district in

Lockett

began to curtail its desegregation efforts by reducing the number of student reassignments and attendance zone adjustments.

Id.

During this same time period, the demographics of the county began to shift.

Id.

By the mid-1980s,. there was a decline in the number of schools with acceptable racial compositions and by 1991, a number of racially identifiable schools existed.

Id.

In 1993, the school district moved for a final dismissal and a declaration of unitary status.

Id.

In 1994, after an evidentiary hearing on the matter, the district court granted the school district’s motion.

Id.

•Although the Eleventh Circuit initially reversed the district court

(Lockett I),

the Circuit Court subsequently granted the school districts’ petition for rehearing and held that the district court’s factual findings were not clearly erroneous and affirmed the district court’s decision

(Lockett II). Lockett v. Board of Education of Muscogee County School Dist.,

111 F.3d 839 (11th Cir.1997). Notwithstanding, the Eleventh Circuit in

Lockett I

reiterated established principles of law which are applicable to the case at hand.

In

Lockett I,

the school district argued that unitary status had been achieved by the 1980s and therefore, they were released from their obligations under the 1971 Order at that time, even though unitary status was not declared until 1994. 92 F.3d at 1097. Conversely, the plaintiffs argued that, “the school district’s obligation to make, affirmative efforts to desegregate the school system commenced in 1971 and did not end until the district court declared unitary status in 1994.”

Id.

Moreover, plaintiffs argued that, the school district’s failure to make good faith efforts to desegregate the system after the 1980s contributed to the racial imbalances in the schools.

Id.

Significantly, the Circuit Court made it clear that, “[t]he school district was subject to the 1971 court order until such time as the district court vacated that order by declaring that the school district had achieved unitary status and complied with the order in good faith.”

Id.

(citing

Pasadena,

427 U.S. at 439-40 , 96 S.Ct. 2697 ).

In the case at hand, Defendants continued their desegregation efforts after they initially achieved acceptable racial compositions throughout the school system in the 1970s. Moreover, Defendants continue to employ new desegregation techniques to date. Therefore, this case is somewhat distinguishable. from

Lockett I.

The school district in

Lockett

implemented a neighborhood assignment plan which “affirmatively increased racial imbalances,” whereas, Defendants in the instant case have not.

See Id.

at 1101. Furthermore, in

Lockett,

the school district never implemented a majority to minority transfer program, “a tool basic to ‘every1 desegregation program.”

Id.

Although Defendants in the ease at hand have not “affirmatively” exacerbated racial imbalances and have implemented,

inter alia,

a majority to minority transfer program, Defendants “curtailed” their desegregation efforts.

37

Defendants never sought a determination of unitary status until the issue was raised

sua sponte

by the Court; however, for years, Defendants have failed to adequately address schools which became racially imbalanced. While the evidence presented by the parties establishes that a shift in demographies played a significant role in the racial compositions of the schools, Defendants have not demonstrated a good faith commitment to desegregation. Certainly, Defendants deserve acknowledgment for their desegregation efforts thus far; however, the Court intends that its criticisms will serve as a guide to Defendants as they implement desegregation techniques in the future. Defendants must take affirmative steps in order to be released from the Court’s super-

*1312

vision. “Each instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment.”

Columbus Bd. of Educ. v. Penick,

443 U.S. 449, 459 , 99 S.Ct. 2941 , 61 L.Ed.2d 666 (1979).

II. Good Faith

A. Desegregation Techniques

Defendants have been relatively successful in implementing desegregation techniques; however, Plaintiffs assert that Defendants have not utilized the available techniques to the maximum extent practicable. The núm-ber of racially unbalanced schools in Hills-borough County is relatively small. As of 1995, there were twelve (12) schools which were 50% or more black and five (5) schools that were between 40 and 49% black. Also, as of October 30, 1995, there were eight (8) schools which were 93% or more white. While Defendants may have believed that they had no obligation to adjust attendance zones to affirmatively combat segregation, other desegregative devices were available. Moreover, despite the impractiealities attendant to attendance zone adjustments, Defendants have had additional opportunities to desegregate the school system to the maximum extent practicable.

(i)

Majority to Minority Transfers

Plaintiffs argue that, even though majority black schools existed since, at least 1977, as of April 19, 1996, there was not one (1) majority to minority (“MTM”) transfer granted. (Br. in Supp. of Pis.’ Obj. to R & R at 17); (T1 at 91); (PX 14). Moreover, Plaintiffs argue that, despite the fact that a MTM transfer program was part of the Court’s 1971 desegregation Order, Defendants did not market its MTM program to eligible students and their families until 1995, and no transfers had been processed as of April 1996. Plaintiffs argue that MTM transfer programs are a commonly used desegregation technique which is effective and does not require changes in attendance zone boundaries. However, Plaintiffs assert, Defendants have been negligent in fulfilling their desegregation obligations. Certainly, the history of this technique in Hillsborough County is concerning.

Plaintiffs argue that, there is no evidence that: (1) a MTM transfer was ever seriously considered until recently; (2) Defendants understood how to operate a MTM program; or (3) Defendants made any efforts to implement an effective MTM transfer program. Plaintiffs point out that the Administrative Assistant to the Superintendent, Dr. John Miliziano, testified that he was unaware of how MTM transfer programs worked in other school districts and that he had not read any literature concerning MTM programs. (T1 at 87-89). Also, Dr. Miliziano testified that it was not until the issue of an ineffective MTM program was brought up by Plaintiffs that the program was announced to the district as a whole and Defendants took action to publish information about the program.

Id.

at 89. Dr. Miliziano testified that he believes some children have been approved for transfers since the School Board took action.

Id.

Dr. Miliziano testified that the utility of the MTM transfer program was not fully appreciated in the past and that it is possible that students who had been denied a transfer under the special assignment program, could have been eligible for a transfer under the MTM program. (T1 at 91-93). However, it is clear that, when the desegregation plan was proposed to the Court in 1971, Defendants understood the utility of a MTM program. In the Court’s July 2, 1971, Order (Docket No. 250), the Court explained that the MTM program, other transfer rules, the Bi-Racial Committee, and approval of site locations had been required by previous orders. (July 2, 1971 Order, at 9). The Court noted that these programs and procedures may not be required if the School Board’s plan is effectuated and accomplished.

Id.

Interestingly, Defendants, perhaps being overly optimistic, sought to avoid the implementation of the MTM program before the desegregation plan had been approved. The Court acknowledged:

In its responsive memorandum of June 28, 1971, the defendants say:

“(a) ... Should the Desegregation Plan submitted by Defendants to the Court be approved, there would seem no purpose for retaining the majority to minority provi

*1313

sions for transfer, since such plan should result in a black to white ratio of approximately 20% to 80% in each and every school; accordingly, and of necessity, black students would be in a minority in schools at all levels....”

Id.

Nevertheless, the Court opined that it would retain jurisdiction and “require the continuation of all of these procedures to be available and used as necessary.”

Id.

The Court subsequently discussed Defendants’ continuing responsibility and noted that, to effectuate the plan “will require the same type of community involvement, diligence and effectiveness as has already been shown [in developing the desegregation plan].”

Id.

at 9-10.

During the 1996 evidentiary hearing, the following exchange took place:

Q. [Dr. Miliziano] [a]re you aware of the treatment of majority to minority transfers in the original 1971 order?

A. To tell you the truth, Mr. Gonzalez, I was — I read that order probably a dozen times. I really was a bit confused as to what that meant.

Q. Okay. Let me represent to you that the court order contains the language with respect to that majority to minority transfer: “The court is retaining jurisdiction and will require the continuation of all of those procedures to be available and used as necessary.”

Are you aware of the plaintiffs or any of the plaintiffs’ representatives ever suggesting that MTM transfers were necessary again?

A To my knowledge, no.

Q. Are you aware of anyone associated with the Legal Defense Fund ever complaining about the fact that that program was hidden or not available to students?

A.

To my knowledge, no. And I dealt with the Biracial Committee for many years, and no member of the committee ever brought that up. And to tell you the truth, I thought it was one of those things that was considered by the court and it was never meant to apply.

It wasn’t until recently that I, a person who has spent many, many years in dealing with the court order, maybe it’s stupidity on my part, but I didn’t even know that this hidden clause — this clause, not hidden, but this clause in the consent order meant really anything.

It wasn’t until recently that it was brought to my attention that, hey, this thing is supposed to be done, and now that you have schools that are 50 percent black or higher, you're supposed to implement this policy.

(T1 at 106-07).

Plaintiffs argue that Dr. Miliziano’s lack of understanding regarding the MTM program is significant because no Hillsborough County school system employee has more extensive school desegregation responsibilities than Dr. Miliziano. Plaintiffs maintain that the failure to understand and aggressively market the MTM program to the parents of children attending majority black schools illustrates Defendants’ lack of good faith commitment to desegregation. Moreover, Plaintiffs maintain that this is another example of a lost opportunity.

It is very disturbing that Defendants’ “in-house” desegregation expert testified that he did not completely understand the import of the MTM program. In 1971, Defendants argued that the transfer program would be unnecessary because all schools would be minority black. However, in 1996, Defendants assert that the usefulness of the program was not understood or appreciated. Notwithstanding, in Exhibit 2 to the Court’s July 2, 1971, Order, the Court explicitly outlined the rules to be applied in connection with transfers and identified MTM transfers as the first exception to the transfer rule. Certainly, Defendants’ lack of appreciation easts doubt on the competence of the individuals charged with the task of desegregating the schools. Moreover, Defendants could have sought clarification from the Court over the last two (2) decades.

The Magistrate Judge explained that, “[although the absence of M to M transfer applications is troubling, the Court’s 1971 Order did not require the defendants to solicit M to M transfers; they were only required to grant them if requested. There has been no violation of the Court’s Order as to the M to M transfer policy.” (R & R at 74). Notwithstanding, the Court finds that this interpreta

*1314

tion of Defendants’ ongoing obligations is too narrow. While the Court did not specifically direct Defendants to market the program, surely if Defendants fully embraced their desegregation obligations they would have wanted to utilize this technique to the fullest extent or at least, made an effort to understand it.

In the May 11, 1971, Order, the Court explained that,

Since 1954 it has been clear that segregated schools are illegal and that the school boards and the courts, if necessary, have a duty to take affirmative action to desegregate them.

On April 20, 1971, it became and is crystal clear that affirmative action ordered by this and other courts for that purpose, and consistently opposed by certain defendants, is legal.

* * * * * *

Some of this may not be known by some or all members of the present board, although it should be. To be sure that they do know, a copy of this Order and a copy of the April 20, 1971, Supreme Court opinion in

Swann v. Charlotte-Mecklenburg Board of Education,

will be sent separately to each defendant. It is assumed that being informed each will fulfill his or her sworn obligation to “support and defend the Constitution of the United States,” as did the Court. Each should remember that he

is

a defendant, and that the Court

will

uphold its obligation:

(May 11, 1971, Order at 1-2) (citation omitted).

Significantly, the Supreme Court in

Swann,

emphasized that,

[a]n optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation. In order to be effective, such transfer program must grant the transferring student free transportation and space must be made available in the school to which he desires to move.

402 U.S. at 26-27, 91 S.Ct. 1267 (emphasis added).

The Court ordered service of this Supreme Court opinion on Defendants in 1971; however, Defendants failed to take the time to understand, let alone implement, an effective MTM program. The Supreme Court in

Swann

ordered that school districts provide free transportation to the student and make space available, but twenty (20) years later, Defendants seek to hide behind the fact that this Court did not specifically indicate that the program should be publicized. This falls far short of demonstrating good faith compliance and, is indeed, troubling.

Defendants have also gone to great lengths to align the instant case with the Supreme Court decision in

Freeman.

However, there are some substantial difference between the two (2) cases. Foremost, the school district in

Freeman

was comprised of 5.6% black students when the desegregation order was initially entered in 1969. 503 U.S. at 475 , 112 S.Ct. 1430 . Significantly, by 1986, the percentage of black students had grown to 47%, whereas, in the case at hand, the influx has not been nearly as remarkable.

Id.

Moreover, the county had become highly segregated in

Freeman. Id.

In addition, the school district in

Freeman,

on its own initiative, implemented a majority to minority transfer program three (3) years after the desegregation order was entered.

Id.

at 479, 112 S.Ct. 1430 . “The program was a marked success.”

Id.

Conversely, in the instant case, Defendants had not granted one (1) majority to minority transfer as late as 1996, twenty-five (25) years after the desegregation order was entered.

(ii)

Magnet Schools

In addition, Plaintiffs emphasize that Defendants failed to develop magnet schools and/or programs, except for the magnet program at Tampa Bay Technical High School, until 1993. Plaintiffs contend that magnet schools have been used by school districts for desegregation purposes since the 1970s. (PX1 at 10). Moreover, the federal government has provided special funds for such

*1315

schools since the 1980s.

Id.

However, the Hillsborough County school system did not create its first magnet schools until 1993.

Id.

While Defendants deserve praise for implementing these magnet schools/programs, the prolonged delay detracts from their achievement.

Plaintiffs argue that implementation of the Middle School Plan is still in progress and it is impossible to foresee the ultimate racial composition of all schools until the plan is completely implemented. Plaintiffs maintain that the race ratio projections for 1997, taken from the 1991 plan, were not met. Plaintiffs point out that the experience thus far, with regards to West Tampa, Edison, Cleveland, Sulphur Springs, and Clair Mel, has been that the proportion of black students at these schools has exceeded the projections made in 1991. Plaintiffs contend that if Defendants fail to take affirmative steps to adjust race ratios after complete implementation of the Middle School Plan, the school system will experience an increase in the number of racially identifiable schools, as well as, the magnitude of racial identifiability of each school.

To illustrate, Plaintiffs argue that, before the plan, there were six (6) schools that were 50% black or higher. (PX 1 at 15-16). Although the projections in the Middle School Plan anticipated a decrease to five (5) schools, the actual number had increased to twelve (12) by the fall of 1995.

Id.

There were nine (9) schools that were between 40 an 49% black before the plan was implemented.

Id.

According to Defendants’ 1991 projections, there was supposed to be seven (7) schools that were between 40 and 49% black.

Id.

By the fall of 1995, there were only five (5) schools in this range.

Id.

However, overall, fifteen (15) schools were considered racially unbalanced before the plan; the 1991 projections predicted that the number would decrease to twelve (12).

Id.

Unfortunately, the number increased to seventeen (17).

Id.

(in)

Ex Parte Communications

An unfortunate occurrence which may have contributed to Defendants’ apathetic attitude over the past several years was that Defendants were given

ex parte

advice from the previously presiding judicial officer. Plaintiffs argue that, “[t]he testimony of Dr. John Heur leads to further doubt about defendants’ representations to this Court.” (Pis.’ Br. in Supp. of Pis. Objs. at 52). Plaintiffs explain that Dr. Heur served as the Director of Pupil Administrative Services for the Hillsborough County school system and was responsible for implementation of Defendants’ desegregation plan, including participating in the submission of plans and annual reports to the Court. Dr. Heur testified that he had several

ex parte

conversations with the judge then presiding over this case, as well as, the presiding judge’s law clerks. (T7 at 13-16).

Dr. Heur explained that most of the time he was asked to explain information included in the School Board’s submissions to the Court. (T7 at 15). However, on one occasion, the presiding Judge told Dr. Heur that the schools could be “left alone” if the School Board had not been the cause of a deviation from the ideal race ratios stated in the 1971 desegregation Order.

Id.

at 16. Dr. Heur testified that, as a result of the

ex parte

conversation with the presiding judge, he understood it to mean that if the change in racial composition in a particular school was caused by housing patterns, rather than, gerrymandering done by the School Board, then the School Board was not obligated to make changes to that schools’ attendance boundaries.

Id

at 17-18. Notwithstanding, Dr. Heur testified that the School Board, in fact, continued to adjust the race ratios if they deviated from the target ratios.

Id.

at 18.

The Magistrate Judge emphasized that, regardless of any ex parte advice that may have been given, Defendants continued to take steps to improve the racial balances when making boundary changes and opening and closing schools. (R & R at 85). The Magistrate Judge explained that, “[i]f this advice was indeed given, there is no inconsistency between the advice and the Court’s Orders. These

ex parte

conversations, while unfortunate, were not initiated by defendants and do not demonstrate a lack of good faith on the part of defendants in complying with the Court’s orders.”

There is no dispute that the

ex parte

communications were inappropriate. However, standing alone, the

ex parte

communications do not evidence bad faith. Neverthe

*1316

less, in light of the Court’s findings, the communications may explain why Defendants failed to take affirmative action to desegregate the school system. Defendants have taken the position that, once the attendance zones were drawn and the schools reflected the system-wide racial composition, albeit for a brief period of time, the School Board had no further obligation to take affirmative steps to convert to a unitary system. This philosophy is clearly erroneous. Consequently, Defendants have failed to meet the Constitutional commands espoused in

Brown v. Board of Educ. of Topeka, Kan.,

349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955), and the Court will retain jurisdiction over the educational policies related to student assignments.

In order to fully apprise the parties of the posture of this case, the Court will address Plaintiffs objections to the Magistrate Judge’s findings in connection with the remaining

Green

factors. The following factual findings are taken from the Magistrate Judge’s Report and Recommendation:

38

FACULTY AND STAFF ASSIGNMENTS

1. For the 1993-1994 school year, 14% of the teachers in Hillsborough County were black. For the same year, blacks constituted 17% of the principals, 22.2% of the assistant principals, and 7.9% of the district administrators (at the main school board office). Of the noninstruetional permanent personnel, 16.1% were black. Black teacher aides comprise 25.3% of the total teacher aides employed by the county.

39

(T2 at 132-135)

2. According to Marilyn Whittner, Director of Human Resources, the School Board has “a dearth of minority applicants for our teaching positions and we are constantly seeking minority teachers.” (T2 at 105) The School Board focuses recruitment efforts at colleges with a substantial percentage of black graduates.

3. Additionally, a mentoring program has been instituted for black teachers who aspire to be administrators. More than one-half of the graduates of that program have been placed in administrative or teacher resource positions. (T2 at 108-09; PX14)

4. For instructional and non-instructional personnel, the principal at an individual school interviews prospective applicants and is authorized to make offers contingent on approval by School Board and staff. Principals are given criteria for open positions. If Human Resources determines that a new hire would adversely affect the racial ratio at a particular school it will disapprove the offer unless no other qualified candidates are available. (T2 at 112-116)

5. Instructional personnel employed by the School Board are represented by a union which negotiates salaries based on the level of service and academic degree held by the employee. These salary levels are applied across-the-board to all teachers. (T2 at 114— 15)

6. There are currently no schools in which black teachers or staff constitute a majority nor has that situation existed in the past since the 1971 Order was entered. (DX 7)

7. The parties’ experts differ on whether some schools are racially identifiable due to their faculty and staff compositions. Using a 15% deviation standard, Dr. Stevens identified twelve elementary schools which are not in compliance with the district-wide ratio. However, Dr. Armor, Defendants’ expert, did not find any schools which fit into this category. This is because Dr. Armor used only faculty data; Dr. Stevens used data from the annual reports which aggregate faculty and staff and include non-certified personnel. (T4 at 139) However, the 14% figure cited by Defendants referred only to black faculty, not staff. (T2 at 130,132)

8. None of the Court’s Orders have ever required the School Board to provide racial balance at the upper management level. However, Plaintiffs note the paucity of upper-level black administrators during the time the School Board has operated under court supervision. During this period, only one (1) of the six (6) Assistant Superintendent positions has been held by a black individual: Assistant Superintendent of Support Services. (T7 at 145-47)

*1317

9. Defendants have never been found liable for racial discrimination in employment based on records which have been maintained since at least 1977. Some complaints have been resolved at the administrative stage. (T7 at 199-200)

10. The School Board has in place grievance procedures which can be utilized by parents and students as well as employees and includes various levels of review, including a public hearing before the School Board. Student handbooks distributed to every student at the start of the school year outline these procedures. (T7 at 201-04)

11. Dr. Samuel Horton, an educator with the School Board between 1977 and 1991, served as General Director of Secondary Education where he helped develop guidelines for the gifted program among other programs. He noted the absence of any blacks in assistant superintendent positions during that time. Dr. Horton, who is African-American, stated that he applied twice for the position of Assistant Superintendent for Instruction but was not selected either time. While he did not file a grievance, Dr. Horton testified that he believed he was not selected due to his race. (T6 at 88-96; 103)

12. Ann Porter, head of the Tampa branch of the NAACP, testified about concerns about black males being denied employment opportunities and other complaints she receives.

40

Ms. Porter, who is African-American, meets with the Superintendent and staff on the average of once or twice a month. This working relationship has become stronger with the current Superintendent, Dr. Earl Lennard. Although she is opposed to a declaration of unitary status at this time, Ms. Porter admitted that many complaints are resolved through these informal meetings. (T6 at 139-41)

TRANSPORTATION

13. With regard to transportation of students, the School Board’s obligation has been to insure that bus routes and assignment of students to buses “assures the transportation of all eligible students on a non-segregated and otherwise non-discriminatory basis” and to regularly re-examine its transportation system. (July 1971 Order at 10)

14. In 1996, the School Board transported approximately 80,000 students daily. It is the fifth largest school district in the nation in terms of the numbers of students transported. (T1 at 123) For the 1994-95 school year, the School Board received over $17 million in state funding for transportation. (DX 24)

15. As required by Florida law, any student attending a school two (2) or more miles from his residence must be furnished transportation by the school district. (DX 21) The School Board has always complied with this requirement. (T1 at 122-25)

16. The School Board provides transportation for all students who qualify and no distinctions are drawn as to race. (T1 at 131-33)

17. The desegregation technique adopted in the 1971 Order involved closing the formerly allblack schools and assigning them to “satellite” attendance zones. (T4 at 135-36)

18. The School Board has maintained data on the number of students transported annually and their race. For the 1995-96 school year, approximately 18,400 students were transported for desegregation purposes including students attending magnet schools. (PX 1 at 20)

19. Of this number, more black students than white students were transported at each of the three (3) school levels: elementary, middle, and high school. (PX 1 at 20)

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20. At no time after the 1971 Order was entered did Plaintiffs raise any objection about the number of students bused, including when the desegregation plan was modified in the 1991 Consent Order due to implementation of the Middle School Plan.

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21. Part of the reason for adopting the Middle School Plan was to allow students to attend schools close to their homes as much as possible. (T1 at 65)

22. Although the 1971 Order did not require provision of transportation for after-school activities, the School Board provides “activity buses” for after-school activities to afford students living in satellite areas (a non-eontiguous attendance zone area) the opportunity to participate in those activities if they were not able to provide their own transportation. Because the junior high schools are being phased into middle schools which are “self-contained” in their activities, the activity buses are primarily used at the high schools. (T1 at 123-30) Activity buses are provided for any students who need to stay after school for any reason, and are not limited to athletics or clubs. (T1 at 138-41)

23. In 1989, the School Board examined whether providing only one (1) activity bus per satellite area met the needs of the students. The Superintendent and his staff determined that more than one (1) activity bus per school might be needed on certain days due to the number of activities and events scheduled at the schools. (DX 23)

24. This policy was implemented and remains in effect today. The School Board supervisor of transportation surveys schools on a weekly or daily basis to determine the number of buses needed. (T 131-36; 138-41)

EXTRACURRICULAR ACTIVITIES

25. Under this Court’s desegregation plan the School Board has been ordered to regularly re-examine its extracurricular activities to insure that they are maintained and operated on a non-segregated and nondiscriminatory basis. (July 1971 Order at 10)

26. In the fall of 1971, the Hillsborough County school system was integrated in its athletic programs and all students, regardless of race, were given an equal opportunity to participate in athletics. (T1 at 112-13)

27. Since that time, a committee composed of the athletic director and assistant school principals has regularly reviewed proposed changes in the athletic programs pursuant to policies adopted by the School Board. The School Board offers a number of athletic programs, ten (10) for females and ten (10) for males. (T1 at 113-15)

28. Athletic activities are offered at each senior high school and existing junior high school. They have been eliminated at the middle schools as part of the restructuring program and due to funding. The director of athletics hopes to provide athletic programs at the middle schools in the future. (T1 at 114-15; 119-20)

29. Of total student participation in athletics, approximately 23% of the athletes were black and approximately 77% were white for the school year 1996-1997. Participation varied from school to school and sport to sport. For example, total participation in basketball for black students was 54% (males) and 49% (females). On the other hand, participation by blacks on high school swim teams was very low. Only three (3) black students (1 female, and 2 males) participated on high school swim teams. Over 18% of the cheerleaders were black. (DX 28; T1 at 115-19)

30. The School Board also offers a variety of other extracurricular activities at senior high schools, including: drama, choral program, string and instrumental music programs, honor clubs, service clubs and various interest clubs. (T2 at 127-28)

31. Defendants do not maintain data on a school by school basis for extracurricular activities but do track overall participation by race. In 1995, black students accounted for 11% of the honor society memberships, 12% of drama clubs, 27% of student councils, 20% of marching bands, 14% of orchestras, and 19% of choral groups. (PX 1 at 27)

32. These activities are open to all students and no students are denied the opportunity to participate because of their race.

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FACILITIES AND RESOURCE ALLOCATION

Site Selection and School Openings and Closings

33. The School Board’s duty as to facilities under this Court’s Order is the same as with transportation and extracurricular activities. As required by prior orders of the Court, the School Board was to make sure that school construction, school consolidation and site selection (including the location of any temporary classrooms) would be “done in a manner which will prevent the recurrence of the dual school structure.” (July 1971 Order at 11).

34. The School Board has reported to this Court the opening and closing of schools and the impact of these actions on the race ratios at the schools. (T1 at 24) It has also presented proposed plans to the Bi-Racial Committee for input. (T1 at 64)

35. Between 1971 and 1993 the School Board has constructed 25 new schools. In most cases, the percentage of black students attending these schools the first year was brought closer to the 80/20 ratio. (DX 4)

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By 1995, five additional schools were built. (PX 1 at 8) None of the new schools has been opened with an all-white population or a black population of close to 40 percent. (T1 at 26)

36. As a general rule, the School Board has approved construction of new schools in areas of increasing population growth and where the greatest amount of overcrowding exists. (T1 at 25) During the past twenty-five (25) years, most new schools have been opened in the suburbs. In every ease of a new school opening, the School Board has taken into account the projected race ratios at the new schools and assigned satellite attendance areas if necessary to maintain a racial balance at those schools. (T1 at 33) Especially with the elementary schools, the School Board tried to assign students to a school near their residence so they could walk to school. (T1 at 43)

37. A total of nine (9) schools have been closed since the 1971-1972 school year. (DX 5) When those schools were closed, the School Board took into account the race ratios at the closed school and the schools to which the pupils were reassigned. (T1 at 30-31) In most cases, the closing of the schools brought the schools the students were reassigned to closer to the 80/20 ratio. (DX 5)

38. Plaintiffs have been notified of all school construction through the reports filed with the Court as to boundary changes. Plaintiffs have never objected to the location of new schools. Although most of the new schools have been opened in the suburbs, Blake High School, which is a magnet high school opened in the 1997-1998 school year near downtown Tampa. Defendants have also opened several magnet schools in predominantly black, inner-city areas: Lee, Phillip Shore, and Dunbar Elementary Schools, as well as, Young and Middleton Middle Schools. (T1 at 155; 174-177)

Overcrowding

39. During the past ten (10) to twelve (12) years, overcrowding has become a problem for most Hillsborough County schools and double sessions a reality at some. (T1 at 61)

40. Plaintiffs introduced evidence that the schools having a black student enrollment of 40% or more are more likely to be overcrowded in terms of their Florida Inventory of School Houses (FISH) capacity. Plaintiffs’ demographics expert, Dr. Shelley, testified that schools with a 40% or more black enrollment are more likely to have enrollments significantly over their FISH capacities than schools which are racially balanced. (T4 at 37; PX 2 at 11-13, 22-23)

41. Dr. Shelley’s data also shows that in 1995, a total of 102 public schools in Hillsbor-ough County were more than 25% over their FISH capacity: eighty-eight (88) were racially balanced schools and fourteen (14) were unbalanced

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schools. Only eight (8) of the

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eighty-eight (88) balanced schools were more than 50% over their FISH capacity but four (4) of the fourteen (14) unbalanced schools fell into this category. (PX 2 at 23)

42. However, the FISH capacity of a school does not include portable classrooms. Use of portables does not necessarily mean that a school is overcrowded. (T4 at 101-03)

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43. Some classes, particularly those which are federally funded, provide an opportunity for a lower pupil to teacher ratio. Thus, a classroom built for twenty-five (25) or thirty (30) children may hold only twenty (20) children. (T1 at 63-64) Most, if not all, of the sixteen (16) schools with black student enrollments of 40% or more are included in the sixty-one (61) “Title 1” schools in Hills-borough County which received additional funding per pupil for the 1996-1997 school year. (DX 37)

44. The School Board recognizes that overcrowding is a serious problem and that the entire community is concerned about it. Last year, voters approved a sales tax increase. Moreover, the School Board appointed an Overcrowded Schools Task Force. The Superintendent and his staff compiled data for all Hillsborough County public schools including FISH capacity, number of portables, as well as the acreage of each school site. The Percentage of Capacity Report (DX 32) generated for the Task Force and the School Board is being used to determine what measures need to be taken to relieve overcrowding. (T7 at 222-24)

45. Although no testimony was provided interpreting the Percentage of Capacity Report in terms of individual schools, it appears that of the 105 elementary schools surveyed, the ten (10) elementary schools with the highest number of points include Edison, Witter, DeSoto, Shaw and Cleveland, all of which have black student enrollments of 40% or more. (DX 32, Elementary Schools, at 1)

Teacher Resources

46. For the 1992-1993 and 1994-1995 school years, schools with a black student enrollment of 40% or more had a lower teacher-student ratio than the other schools with fewer than 40% black students. (DX 1, charts 33 and 36)

47. For this two-year period, there was also no discernable difference in terms of educational degrees and experience between the teachers at the over 40% schools and those which were under 40% in terms of black student enrollment. (DX 1, charts 33-36)

Expenditures

48. In 1995, the School Board had a budget of $1.2 billion. (T7 at 150)

49. Funding is received from three (3) separate sources: federal, state, and local. Funds for operating expenses come from the Florida Educational Finance Program (FEFP), a state program that funds school districts based on the needs of students and the costs to provide education in the school district as opposed to other Florida school districts. The FEFP funds come from three (3) sources: state revenue based on sales tax, local property tax revenue, and revenue from the state lottery. (T1 at 185-88)

50. The School Board also receives funding from the federal government for educating handicapped students and funding based on the socioeconomic needs of the students. Capital outlay expenses for new schools and other capital expenses come from local taxes. The School Board also receives some state funds generated from gross receipts on utilities. (T1 at 188)

51. Various agencies of the federal and state government regularly audit the School Board to insure expenses meet the program requirements and that funds are allocated on an equitable basis. (T1 at 190-91; 195-97)

52. There is no difference in the per cap-ita expenditures of the School Board on instructional salaries for teachers district-wide regardless of the racial composition of the schools. (DX 1, charts 37, 40) As stated in the preceding discussion of faculty and staff, instructional salaries are set by the collective bargaining agreement between the teacher’s

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assoc

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