Manning Ex Rel. Manning v. School Board of Hillsborough County

Andrew L. MANNING, a minor, by his father and next friend, Willie MANNING, Shayron R. Reed, by

her father and next friend, Sanders B. Reed, Sandra E. Reed, et al., Plaintiffs-Appellees,

v.

THE SCHOOL BOARD OF HILLSBOROUGH COUNTY, FLORIDA (formerly Board of Public

Instruction of Hillsborough County, Florida), Clyde McLeod, et al., Defendants-Appellants.

No. 99-2049.

United States Court of Appeals,

Eleventh Circuit.

March 16, 2001.

Appeal from the United States District Court for the Middle District of Florida. 9no. 58-03554-CIV-T-17C),

Elizabeth A. Kovachevich, Chief Judge.

Before BLACK, FAY and COX, Circuit Judges.

BLACK, Circuit Judge:

Appellants, the School Board of Hillsborough County, Florida, and its officials, appeal two orders

of the district court which subject them to continued supervision under a federal desegregation decree. See

Manning v. Sch. Bd. of Hillsborough County, Fla., 24 F.Supp.2d 1277 (M.D.Fla.), mot. to alter or amend

den., mot. for clarification granted in part, 28 F.Supp.2d 1353 (M.D.Fla.1998). Appellants argue that they

have eliminated the vestiges of past discrimination to the extent practicable and have fully complied in good

faith with the desegregation decree. Accordingly, Appellants claim their school district should be declared

unitary and federal judicial supervision should cease. Conversely, Appellees, a class of African-American

schoolchildren, contend the school district is not unitary and federal judicial oversight of Appellants remains

necessary. We hold that Appellants have achieved unitary status. We reverse and remand for the district

court to enter judgment, in accordance with this opinion, declaring the Hillsborough County school system

to be unitary.

I. BACKGROUND

A. Procedural History

Appellants for many years operated a racially-segregated, dual school system. As a result of the

Supreme Court's landmark decision in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686,

98 L.Ed. 873 (1954) (Brown I), Appellees in 1958 filed this class-action lawsuit on behalf of all "minor Negro

children and their parents" residing in Appellants' school district.1 In 1962, the district court found that

Appellants, by operating a segregated school system, had violated the Fourteenth Amendment. For the next

eight and half years, the district court issued various orders as part of its efforts to remedy the harm caused

by Appellants' unconstitutional conduct. See, e.g., Mannings v. Bd. of Pub. Instruction of Hillsborough

County, Fla., 306 F.Supp. 497 (M.D.Fla.1969).

In 1970, our predecessor court examined whether Appellants had sufficiently eradicated the illegal

dual school system such that it could be found "unitary." See Mannings v. Bd. of Pub. Instruction of

Hillsborough County, Fla., 427 F.2d 874 (5th Cir.1970). Relying upon the six so-called Green2 factors, the

former Fifth Circuit concluded that, with regard to three factors (transportation, extracurricular activities, and

facilities), Appellants had indeed achieved a unitary school district. See Mannings, 427 F.2d at 878.

Nonetheless, based on its examination of three other factors (faculty desegregation, staff desegregation, and

student assignments), the court found Appellants had fallen short and had not attained unitary status. See id.

The case was remanded to the district court with instructions to remedy the deficiencies. See id.

After remand, the Supreme Court, in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.

1

The lawsuit was filed in the Southern District of Florida. In 1962, the Middle District of Florida was

created, and the case was transferred to that court's docket on November 2, 1962. In a May 1971 order,

the presiding district judge noted that this case was—in 1971—the oldest active case on the docket of the

Middle District of Florida. Of course, the same holds true today.

The Honorable Thurgood Marshall, prior to his appointment to the Supreme Court,

served as one of the attorneys for Appellees. The lead plaintiff was, and still is, Andrew L.

Manning; through the many years of litigation, his surname has frequently, and incorrectly, been

spelled "Mannings." The institutional defendant was formerly known as the Board of Public

Instruction of Hillsborough County.

The following are the published opinions arising from this case: Mannings v. Bd. of Pub.

Instruction of Hillsborough County, Fla. 277 F.2d 370 (5th Cir.1960); Mannings v. Bd. of Pub.

Instruction of Hillsborough County, Fla., 306 F.Supp. 497 (M.D.Fla.1969); Mannings v. Bd. of

Pub. Instruction of Hillsborough County, Fla., 427 F.2d 874 (5th Cir.1970); Mannings v. Sch.

Bd. of Hillsborough County, Fla., 796 F.Supp. 1491 (M.D.Fla.1992); Mannings v. Sch. Bd. of

Hillsborough County, Fla., 816 F.Supp. 714 (M.D.Fla.1993); Mannings v. Sch. Bd. of

Hillsborough County, Fla., 149 F.R.D. 235 (M.D.Fla.1993); Mannings v. Sch. Bd. of

Hillsborough County, Fla., 149 F.R.D. 237 (M.D.Fla.1993); Mannings v. Sch. Bd. of

Hillsborough County, Fla. (M.D.Fla.1994); Mannings v. Sch. Bd. of Hillsborough County, Fla.,

851 F.Supp. 436 (M.D.Fla.1994); Mannings v. Sch. Bd. of Hillsborough County, Fla.

(M.D.Fla.1994); Mannings v. Sch. Bd. of Hillsborough County, Fla. (M.D.Fla.1995); Mannings

v. Sch. Bd. of Hillsborough County, Fla. (M.D.Fla.1995); Manning v. Sch. Bd. of Hillsborough

County, Fla. (M.D.Fla.1999). Additionally, a law review article is devoted exclusively to this

litigation. See Drew S. Days, III, The Other Desegregation Story: Eradicating the Dual School

System in Hillsborough County, Florida, 61 Fordham L. Rev. 33 (1992).

2

Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), gave firm guidance on a district court's equitable power to remedy

illegal segregation. On May 11, 1971, just 21 days after Swann was decided, the district court directed

Appellants to submit a comprehensive desegregation plan that conformed with the requirements of Swann.

Thereafter, Appellants submitted such a plan, and the district court adopted the plan in its order dated July

2, 1971 (the July 1971 Order). From 1971 to 1991, the district court's supervision of Appellants was

governed, with some minor modifications, exclusively by the July 1971 Order.3

In 1991, Appellants and Appellees entered into a consent decree (1991 Consent Order). The primary

reason for the 1991 Consent Order was to enable Appellants to reorganize the school district, so as to

eliminate single grade centers and to create middle schools. The 1991 Consent Order, which was to be

implemented over a 7-year period, did not annul the July 1971 Order, but merely modified it.

Appellee moved in 1994 to enforce the 1991 Consent Order. The matter was referred to the

magistrate judge who recommended denying the motion. The district judge, however, deferred ruling on the

motion and sua sponte recommitted the matter to the magistrate judge to consider whether the school district

had become unitary, thereby removing the need for federal judicial oversight.

In October 1996, the magistrate judge conducted a 7-day hearing, at which both sides presented

considerable evidence. In August 1997, the magistrate judge issued a detailed report and recommendation

wherein she recommended the district court find that Appellants had achieved unitary status and thus should

be released from federal judicial supervision. Without holding an evidentiary hearing, the district judge in

a 110-page order dated October 26, 1998, rejected in part and adopted in part the magistrate judge's report

and recommendation. See Manning, 24 F.Supp.2d at 1277-1335. The district judge concluded that

Appellants had not attained unitary status and therefore federal judicial supervision was still warranted.4 See

Manning, 24 F.Supp.2d at 1335. Within ten days of the order dated October 26, 1998, Appellants filed a

motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e). The district court, in a 13-page order,

denied the motion on December 4, 1998. See Manning, 28 F.Supp.2d at 1361. Within 30 days, Appellants

filed a notice of appeal as to the district judge's orders of October 26, 1998, and December 4, 1998.

3

For a summary of the minor modifications, see infra note 6.

4

Before the district court, Appellees also argued that, even if the school district were unitary, this

status would not constitute a "changed circumstance" warranting a modification or vacation of the 1991

Consent Order. See Manning, 24 F.Supp.2d at 1287-88 (citing Rufo v. Inmates of Suffolk County Jail,

502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992)). The district court rejected Appellees' argument.

See id. at 1288. Since Appellees do not contest this ruling on appeal, we do not address it.

B. Facts

To analyze this case that has endured for over 40 years, we first summarize the contents of the July

1971 Order and the 1991 Consent Order, which, with minor modifications, have served as the guideposts for

Appellants' journey toward a unitary school district. Then, we set forth the district court's most recent factual

findings with respect to Appellants' unitary status.

1. July 1971 Order

As previously discussed, the district court ordered Appellants in May of 1971 to submit a

comprehensive desegregation plan. The district court stated that the "primary objective" of the plan should

be the abolition of segregation. In particular, the district court sought to eliminate, at every school, racial

balances where black students comprised more than 50% of the student population. The district court further

stated that the "most acceptable and desirable" result would be a white/black ratio of 86%/14% in senior high

schools, 80%/20% in junior high schools, and 79%/21% in elementary schools.

The July 1971 Order, which ratified Appellants' proposed desegregation plan, dealt primarily with

student assignments in grades one through twelve. For elementary schools, the plan clustered each

predominately black school with two to five predominantly white schools. The white schools would be used

for grades one through five and would be integrated with black children from "satellite zones"5 who had

previously attended the black school in the cluster. The black school in each cluster would be used as a

sixth-grade center and would be integrated with white children who had previously attended the white schools

in the cluster.

For junior high schools, each black school would be clustered with one to three white schools. The

black schools would be used for seventh grade, and the white schools would be used for eighth and ninth

grades. Again, the schools would be integrated with students from satellite zones. For senior high schools,

the two black schools would be closed, but their facilities would be used for junior high schools. Through

a series of re-zoning and satellite busing measures, the white high schools would be integrated.

With regard to faculty and staff, the district court had previously entered an order on August 25,

1970. In the July 1971 Order, the court found that no additional measures were necessary, and it directed

Appellants to continue to abide by the August 25, 1970, order. With respect to transportation, facilities, and

extracurricular activities, the July 1971 Order directed Appellants to comply with all previous orders. The

5

A satellite zone is an area not contiguous with the main attendance zone for the school.

order also mandated that all operations relating to these areas should be conducted in a non-discriminatory

manner and should be regularly re-examined by Appellants.

The July 1971 Order also remarked on four other topics: (1) majority to minority transfers, (2) other

transfer rules, (3) the bi-racial committee, and (4) approval of site locations. Specifically, the district court

stated, "Each of these has been required by previous orders of this Court. Some of them may not be required

if [Appellants'] plan is effectuated and accomplished." Nevertheless, the district court stated that it was

"retaining jurisdiction and [would] require the continuation of all of these procedures to be available and used

as necessary."

Attached to the July 1971 Order were two exhibits which explained the bi-racial committee,

majority-to-minority transfers, and other transfer rules. The bi-racial committee was to serve as an advisory

body on a number of issues and was to consist of ten members, with Appellants and Appellees each selecting

five members. In some instances, the committee was to receive reports about students transferring from their

assigned schools. In other instances, Appellants were barred from approving student transfers before

considering a recommendation from the committee.

Concerning majority-to-minority transfers, the attached exhibits stated the following:

Majority to minority transfer—Any student shall be permitted to transfer from a school in which his

race is in the majority in order to attend the closest school to his residence in which his race is in the

minority.

....

The transfer forms shall be available at each public school in Hillsborough County and the County

School offices.

....

The transferee is to be given priority for space and thus the transfer is not to be dependent on space

being available.

Transportation will be provided by the School Board in service or in kind to the school to which the

transfer is made if that school is more than two miles from the home.

In conclusion, the July 1971 Order stated that Appellants' desegregation plan "fully complie[d] with

the [district] [c]ourt's order of May 11, 1971," and that it would "result in the establishment of a unitary

school system in Hillsborough County, Florida." The July 1971 Order noted, however, that Appellants had

a "continuing responsibility" to ensure the plan would be effectuated. Moreover, each year following the

implementation of the July 1971 Order, Appellants filed two reports per year with the district court and

provided copies to Appellees. Lastly, the July 1971 Order retained jurisdiction in the district court for "such

further action as may be necessary and required."

2. 1991 Consent Order

Between 1971 and 1991, the modifications to the July 1971 Order were minor.6 By 1991, however,

Appellants had determined, based upon a comprehensive study, that the school district would benefit if

middle schools (grades 6-8) were established. To accomplish this, the July 1971 Order had to be modified,

because that order had relied extensively on single-grade centers (grades 6 and 7) to desegregate the school

district. Thus, Appellants entered into negotiations with Appellees, and the product of those negotiations was

the 1991 Consent Order.

The centerpiece of the 1991 Consent Order was the Middle School Task Force Report 3 of July 1991

(hereinafter "Task Force Report"), which the district court incorporated into the consent order.7 The Task

Force Report was presented to the school board by a 12-person committee. This committee included Mr.

Henry Carley, President of the Tampa Branch of the NAACP. In addition, a legal committee, consisting of,

inter alia, Mr. Al Davis of the NAACP, reviewed the Task Force Report, and Appellees' own desegregation

expert, Dr. Leonard Stevens, was involved in shaping the Task Force Report. Furthermore, the Task Force

Report included two separate position statements prepared by various African-American community groups

(Howard W. Blake Alumni Group, Coalition of African American Organizations, Greater Tampa Urban

League, Inc., and Beta Sigma Zeta Chapter of Zeta Phi Beta Sorority). In sum, as the 1991 Consent Order

explained, the Task Force Report was the result of "extensive discussions" between Appellants and Appellees,

and the discussions were designed to "to ensure ... that plans for the implementation of the [Task Force

Report] were formulated in a manner that addressed the interests and concerns of [Appellees]."

The Task Force Report proposed substantial changes to the structure of the school system. Under

the July 1971 Order, the school system generally had consisted of five tiers: elementary schools (grades K-5),

sixth-grade centers, seventh-grade centers, junior high schools (grades 8-9), and high schools (grades 10-12).

In contrast, the Task Force Report called for a three-tier school system: elementary schools (grades K-5);

6

The modifications included, inter alia: changes in transfer rules for children of school employees;

approval of a new high school site; changes in academic transfer rules; the closure of certain schools;

and the creation of magnet schools. Perhaps, the most significant modification dealt with Lee Elementary

School, which by 1974 had a black population in excess of 50%. To correct this imbalance, Appellants,

pursuant to the district court's order, converted Lee to a sixth-grade center and transferred the former Lee

students (first through fifth graders) to seven other elementary schools.

7

The parties and the district court use interchangeably the terms "Task Force Report" and "Middle

School Plan." For the sake of simplicity, we use solely the term Task Force Report.

middle schools (grades 6-8); and high schools (grades 9-12). This new structure would be achieved through

a so-called "cluster model," under which 17 clusters would be formed. For each cluster, the high school

would serve as the "basic unit" and its students would be drawn from "feeder" middle and elementary schools.

The Task Force Report estimated that it would take five to seven years to implement the cluster model.

The cluster model proposed by Task Force Report was undoubtedly the most substantial change to

the structure of the school system since the July 1971 Order. The objective of July 1971 Order had been to

desegregate the school system. By contrast, one of the primary objectives of the Task Force Report was "to

maintain a desegregated school system." (emphasis added). In an apparent attempt to meet this objective,

the 1991 Consent Order directed Appellants "to minimize (to the extent practicable) the number of schools

which deviate from the system-wide student enrollment [race] ratios." Moreover, the 1991 Consent Order

assumed that intervening demographic changes might necessitate future modifications in student assignments

in order to maintain a desegregated school district.8

To further the goal of maintaining desired race ratios, the Task Force Report attempted to project the

race ratios at each school after the cluster plan's implementation. In summary, the Task Force Report

predicted:

The number of schools reflecting a ten or higher percent race ratio variance [from the recommended

ratio of 20/80%] will increase from 36 to 46. The plan also increases the number of schools from 56

to 72 that will have an almost perfectly balanced race ratio with a student variance of five percent or

less from the recommended ratio of 20/80% ratio.

Appendix 1 of the Task Force Report provided more detail as to the projected racial balance at each school.

Fourteen schools were projected to have a 40% or greater black population,9 and an additional four schools

were projected to have a 39% black population.10 These projections, as part of the Task Force Report, were

incorporated into the 1991 Consent Order—a consent decree to which Appellees were parties.

8

This assumption was wrong as a matter of law. External factors which are not the result of

segregation and are beyond a school board's control should not be part of the remedial calculus when

shaping a federal desegregation decree. See Missouri v. Jenkins, 515 U.S. 70, 102, 115 S.Ct. 2038, 2055-

56, 132 L.Ed.2d 63 (1995) (citing Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434, 96 S.Ct.

2697, 2703-04, 49 L.Ed.2d 599 (1976)); infra Part II.B.1.

9

The 14 schools, with their projected race ratios, were as follows: Lomax (94%), Edison (64%),

Sulphur Springs (59%), Graham (58%), Oak Park (58%), Cleveland (50%), Franklin (47%), Sligh (46%),

Lockhart (45%), Palm River (41%), West Tampa (41%), Shaw (41%), B.T. Washington (40%), Witter

(40%).

10

The four schools were Foster, Bing, Dowdell, and Just.

Along with projecting race ratios, the Task Force Report instituted a variety of programs designed

to maintain a desegregated school system. For example, the report implemented magnet programs,11 which

were designed in part "to reduce minority isolation" and "to promote desegregation in schools."12 The report

also suggested a multi-cultural curriculum for students in all grades and instructional sessions to enable staff

to deal with diverse populations.

One omission in the Task Force Report, however, is particularly noteworthy in light of subsequent

events: majority-to-minority transfers. Although they had been discussed briefly in the July 1971 Order,

majority-to-minority transfers were not mentioned once in the 37-page Task Force Report, nor in the 8

attached appendices, nor in the 1991 Consent Order. Dr. Stevens—Appellees' desegregation expert who

helped shape the Task Force Report—admitted at the 1996 evidentiary hearing that majority-to-minority

transfers would have been insignificant in alleviating the racial imbalances in the school district.

3. Factual Findings

The magistrate judge, in her 1997 report and recommendation, structured her factual findings around

the six Green factors,13 plus a seventh factor, quality of education, which has been used by some courts to

evaluate a school district's unitary status. See, e.g., Mills v. Freeman, 942 F.Supp. 1449, 1460 (N.D.Ga.1996),

aff'd, 118 F.3d 727 (11th Cir.1997). In addition, the magistrate judge made factual findings regarding

Appellants' good-faith compliance with past desegregation decrees, as required by Board of Education of

Oklahoma City v. Dowell, 498 U.S. 237, 250, 111 S.Ct. 630, 638, 112 L.Ed.2d 715 (1991), and its progeny.

Based on all of these findings, the magistrate judge recommended the school district be declared unitary in

all respects and that federal judicial supervision of the school district be terminated.

The district judge found that the magistrate judge's report and recommendation was "comprehensive"

and "agree[d] with a majority of the [m]agistrate [j]udge's analysis." Manning, 24 F.Supp.2d at 1287. For

six of the seven factors (faculty, staff, transportation, extracurricular activities, facilities and resource

allocation, and quality of education), the district judge adopted most, if not all, of the magistrate judge's

11

The magnet programs were intended to supplement a traditional curriculum with a focus on special

"themes", such as computers and technology or visual and performing arts.

12

In addition, the "racial composition targets for magnet school populations [was] not [to] exceed

40% black."

13

Those six factors are student assignments, faculty, staff, transportation, extracurricular activities,

and facilities and resource allocation. See Green, 391 U.S. at 435, 88 S.Ct. at 1693.

findings.14 See id. at 1316-34. In their brief to this Court, Appellees do not contest the findings related to

these six factors, and thus further elaboration is unnecessary except to emphasize that the findings support

a declaration of unitary status.

With regard to the remaining Green factor (student assignments), the district judge expressed some

disagreement with the magistrate judge. The district judge also differed with the magistrate judge's finding

on Appellants' good-faith compliance. As we discuss in Part II, the district judge used an incorrect legal

standard. As a result, the district judge's legal conclusion, though based mostly upon the magistrate judge's

factual findings, was erroneous. To help illuminate our discussion in Part II, we narrate below the magistrate

judge's factual findings related to student assignments and Appellants' good faith, and we highlight, when

necessary, particular findings adopted by the district judge. We also note those few areas where the district

judge rejected the factual findings of the magistrate judge.

a. Student Assignments

As of the 1995-96 school year, the Hillsborough County school district consisted of approximately

120,000 students, 108 elementary schools, 27 junior high schools, and 15 senior high schools. Relying on

a standard proposed by Appellees' and Appellants' experts, the magistrate judge designated any school with

a black/white ratio varying plus or minus 20 points from a 20/80 ratio as being "racially identifiable" or

"racially imbalanced."15 It was undisputed that, by the 1971-72 school year, all schools were desegregated.

Furthermore, the evidence showed that, at the time of the 1996 evidentiary hearing, approximately 90% of

the schools were not racially identifiable. Appellees, however, identified 17 schools as racially identifiable

and made these schools the focus of the 1996 evidentiary hearing.16 Ironically, of these 17 schools, 9 were

14

Regarding these six factors, the district judge's order is less than clear. After a thorough review,

however, we are convinced that the district judge overruled most, and possibly all, of Appellees'

objections to the magistrate judge's report and recommendation. The objections sustained by the district

judge, if any, are inconsequential to our ultimate holding in this case.

15

Since the parties agree on what constitutes a racially identifiable school, we shall accept their

definition for purposes of this case and this case only. We pass no judgment on the correctness of this

definition.

16

Both the district judge and the magistrate judge referred to 16 schools. A review of the Joint Pre-

Evidentiary Hearing Statement and the report by Appellees' expert reveals that Appellees challenged the

racial identifiability of 17 schools. Both the district judge and the magistrate judge omitted Mort

Elementary from their findings. This oversight, however, is of no significance. The following are the

percentages of black students at each of these 17 challenged schools during the 1972-73 and 1995-96

school years:

among the 14 schools that the Task Force Report projected would have a 40% or greater black population,

and two were among the four schools that the Task Force Report projected would have a 39% black

population.17 Immediately after the July 1971 Order was implemented, all of these schools became racially

balanced.18

The critical factual question at the evidentiary hearing was whether the racial imbalances at the 17

schools were caused by Appellants' past de jure segregation (or other discriminatory conduct), or whether,

Percentage of Black Percentage of Black

School Students, 1972-73 Students, 1995-96

Robles 24% 91%

Edison 36% 77%

Sulphur Springs 19% 74%

Oak Park 23% 69%

Graham 35% 67%

Foster 21% 61%

Cleveland 26% 58%

Shaw 15% 57%

Witter 18% 54%

Cahoon 21% 53%

Clair Mel 18% 49%

West Tampa 14% 47%

DeSoto 35% 43%

Mort N/A 43%

Van Buren 17% 53%

Sligh 20% 50%

Dowdell 14% 48%

17

Compare supra notes 9, 10 with supra note 16.

18

One school, Mort, was not listed in the 1971 report submitted by Appellants and thus presumably

did not exist at that time.

instead, the racial imbalances were caused by nondiscriminatory factors and circumstances. In a joint

statement submitted prior to the evidentiary hearing, Appellants contended that demographic shifts had

caused the schools to become racially identifiable. In the same joint statement, Appellees did not directly

rebut Appellants' contention, but instead argued that "[d]emographic change alone does not account for the

racial identifiability in the Hillsborough County school system." (emphasis added).

To resolve their factual dispute, the parties presented considerable evidence to the magistrate judge,

including, inter alia, reports on attendance boundaries, demographic reports, and expert testimony. We need

not repeat all this evidence here, as it is fully set forth in the opinion of the district court. See Manning, 24

F.Supp.2d at 1290-1312. Instead, we compare the findings of the magistrate judge to those of the district

judge.

The magistrate judge, in her report and recommendation, recounted the expert testimony of Dr. David

Armor, one of Appellants' experts—testimony that the magistrate judge personally observed. Dr. Armor

explained that he reviewed the extensive demographic data contained in a report by Dr. W.A.V. Clark,

another of Appellants' experts. Based on this evidence, Dr. Armor opined on the witness stand that "none

of the schools that were currently imbalanced ... were caused by [Appellants'] action[s,]" but rather such

imbalances "were caused by demographics." The magistrate judge also reviewed the testimony of Dr. Fred

Shelley, Appellees' demographic expert—once again, testimony that the magistrate judge personally

observed. Dr. Shelley did not conduct his own demographic study, but rather relied on the data supplied by

Dr. Clark (Appellants' expert). Dr. Shelley opined "that it is perhaps difficult to conclude that [the] increase

in racial imbalance is attributable solely to the processes of natural demographic change." In the end, the

magistrate judge agreed with Dr. Armor and found that demographic change is the "most likely explanation"

for the racial imbalances. The magistrate judge faulted Dr. Shelley for not providing an alternative

explanation for the racial imbalances.19

19

In his report, Dr. Shelley did not attempt to link the present racial imbalances with past de jure

segregation, but rather merely tried to prove that demographics alone did not cause the upsurge in racially

identifiable schools. At the evidentiary hearing, when asked how his report differed from Dr. Clark's

report, Dr. Shelley responded:

My reaction to the report was that, while I thought the demographic analysis was very

good, what I felt was missing in the report was how to reason from the analysis of the

demographic change that was undertaken to a conclusion that demographic change was

the sole cause of the observed racial imbalance in the public schools in Hillsborough

County.

The district judge, though not observing any of the testimony, agreed for the most part with the

findings of the magistrate judge. In conformity with Dr. Armor's opinion (and the magistrate judge's finding),

the district judge found that "[t]here [was] no indication that the racial identity of the schools in Hillsborough

County has been deliberately caused by segregative policies or practices by [Appellants]" and that "based on

the totality of the evidence, a shift in demographics [was] a substantial cause of the racial identifiability in

Hillsborough County's schools." Manning, 24 F.Supp.2d at 1303, 1310. The district judge likewise was

unable to cite, in either of her two orders, any independent demographic evidence put forward by Appellees

or an alternative explanation proffered by Dr. Shelley as to the cause of the racial imbalances.

The district judge seemed to have adopted in toto Appellants' theory of the case (and the magistrate

judge's finding). As the district judge stated time and time again, a shift in demographics was a substantial

or significant cause of the racial imbalances, and Appellants did not deliberately cause the racial imbalances.

See id. at 1293 (stating "that the racial imbalances in the schools [were] not the result of a deliberate attempt

by [Appellants] to affect or alter demographic patterns to affect the racial composition of the schools"); id.

at 1311 (finding "the evidence presented by the parties establishes that a shift in demographics played a

significant role in the racial compositions of the schools" and that Appellants had "not 'affirmatively'

exacerbated racial imbalances"); Manning, 28 F.Supp.2d at 1356 (stating that "demographics have played

a significant role in Hillsborough County"). The district judge even agreed that "[i]t [was] probable that" the

17 challenged "schools would have become racially imbalanced regardless of [Appellants'] efforts."

Manning, 24 F.Supp.2d at 1303. Even Appellees' own expert, according to the district judge, "agreed that

demographics have played a significant role in Hillsborough County." Id. Despite all of the evidence

showing that demographics, and not de jure segregation, caused the racial imbalances, the district judge

ultimately declined to find the school district unitary as to student assignments. The district judge declined

to so find because she could not conclude that demographics were the sole cause of the racial imbalances.

See id. at 1302. In the district judge's view, therefore, the legal presumption remained that any racial

imbalances were the result of the prior de jure segregation. See Manning, 28 F.Supp.2d at 1357.

Finally, we note that the district judge's findings were inconsistent and difficult to follow. For

Tr. of Evidentiary Hearing on October 24, 1996, Vol. 4, at 66 (emphasis added). Dr. Shelley

expressed doubts that "one can conclude without ambiguity that [the racial] imbalance is caused

only by natural demographic changes." Id. at 66-67 (emphasis added).

example, the district judge was concerned by Dr. Clark's data, especially with regard to its reliability.20 See

Manning, 24 F.Supp.2d at 1298-1300. Nevertheless, the district judge never stated that the data—which both

sides relied upon—was so unreliable so as to undermine her finding that "a shift in demographics [was] a

substantial cause of the racial identifiability in Hillsborough County's schools." Id. at 1303. Additionally,

the district judge remarked that she was "not convinced that a shift in demographics explain[ed] the racial

imbalance in the Hillsborough County school system." Manning, 28 F.Supp.2d at 1356; see also Manning,

24 F.Supp.2d at 1293. Yet, in the very same sentence, the district judge also stated that "demographics have

played a significant role in Hillsborough County." Manning, 28 F.Supp.2d at 1356. In spite of these

inconsistencies, we are convinced that the district judge agreed with the magistrate judge and found that

shifting demographics was a substantial cause of the racial imbalances in Appellants' student assignments and

that Appellants did not deliberately cause the racial imbalances.

b. Good-Faith Compliance

The magistrate judge concluded that Appellants had complied in good faith with past federal

desegregation decrees, as required by Dowell and its progeny. 498 U.S. at 249-50, 111 S.Ct. at 638. The

magistrate judge's conclusion was based largely on the testimony given during the 7-day evidentiary hearing

by a variety of witnesses, including inter alia: Dr. Walter Sickles, the school superintendent from 1989 to

1996; Dr. Earl Lennard, the school superintendent as of 1996; five members of the school board; Doris

Reddick, the chair of the school board; Andrew Manning, the lead plaintiff in the case since its inception;

and Joanna Tokley, the president and CEO of the Urban League.

Dr. Sickles, who had been an employee of the school board since 1969, testified that he believed the

school district was unitary in the early 1990's. Dr. Sickles did not seek a declaration of unitary status at that

20

In particular, the district judge noted the following:

[Appellants'] statistics encompass a larger segment of the population than is useful to

explain the deviations in the racial compositions of the unbalanced schools. Specifically,

[Appellants] 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. 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 [Appellants'] 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.

Manning, 24 F.Supp.2d at 1298.

time because he believed Appellees would have opposed and impeded his effort to establish middle schools,

which was his top priority. Instead, Dr. Sickles sought Appellees' cooperation in establishing middle schools

via the Task Force Report and the 1991 Consent Order. Dr. Lennard, an employee of the school board since

1964, testified that he felt a "moral and legal obligation on the school system to continue a desegregated

school system." Five school board members "expressed no misgivings about ... the intent and ability of the

School Board to continue a desegregated school system while receiving input from all members of the

community."

Some witnesses "voice[d] concern about what might happen in the future if [c]ourt supervision

ended." For instance, Ms. Reddick, the chair of the school board, testified against a finding of unitary status.

Nevertheless, when asked by Appellees' counsel what would happen if the school district were found unitary,

Ms. Reddick asserted, "[W]e're going to guarantee that students will receive equal education."

The magistrate judge found that for more than 25 years Appellants had complied with the court's

orders to desegregate and that not once had Appellants been found in violation of any court order. In

addition, the magistrate judge noted that Appellants had "regularly conferred [with Appellees] ... to ensure

that the school system was moving forwards, not backwards, toward compliance with the [c]ourt's orders."

Accordingly, "the long history of compliance with the [c]ourt's orders" outweighed the "opinions and the

anecdotal evidence offered by [Appellees]." In sum, the magistrate judge concluded, "The testimony of ...

most School Board members, as well as the current superintendent and those responsible for various facets

of school operation[,] demonstrates that [Appellants] have accepted the principle of racial equality and will

not revert back to a dual school system."

The district judge, however, did not adopt this finding of good faith. Since the district judge did not

observe any of the testimony from the evidentiary hearing, naturally she could not evaluate the credibility

of the witnesses. Instead, the district judge's finding of bad faith centered upon two interrelated areas of

concern: Appellants' "apathy" and the lack of a majority-to-minority (MTM) transfer program.21 See

21

The district judge and the magistrate judge also extensively discussed some ex parte

communications between a previous presiding judge and school officials. During the evidentiary hearing,

Dr. John Heur, a retired school board official who had been responsible for implementing the July 1971

Order, testified that such communications occurred between 1972 and 1974. The magistrate judge found

that "[t]hese ex parte conversations, while unfortunate, were not initiated by [Appellants] and do not

demonstrate a lack of good faith." The district judge agreed, finding that, "standing alone, the ex parte

communications [did] not evidence bad faith." Manning, 24 F.Supp.2d at 1315.

Additionally, Part II of the October 26, 1998, opinion is titled "Good-Faith" and

Manning, 24 F.Supp.2d at 1293, 1312-14.

With regard to Appellants' "apathy," the district judge faulted Appellants for not "utiliz[ing] all

available techniques [to desegregate] to the maximum extent practicable" and for not demonstrating "that they

[were] willing to aggressively desegregate the school district to the maximum extent practicable." Id. at 1312,

1335. Additionally, the district judge spoke of missed opportunities and a failure to take "affirmative steps

... to be released from the [c]ourt's supervision." Id. at 1312; Manning 28 F.Supp.2d at 1359 (citing Lockett

v. Bd. of Educ. of Muscogee Sch. Dist., 92 F.3d 1092, 1099 (11th Cir.1996) (Lockett I)). Nevertheless, after

a request by Appellants to clarify exactly what steps should be taken to desegregate to the maximum extent

practicable, see id. at 1355, the district judge declined to give any specifics.

Related to the issue of apathy is the inaction demonstrated by Appellants in their MTM program.

As previously noted, the July 1971 Order directed the establishment of an MTM program. See supra Part

I.B.1. Under this program, a student who attended a school where his race was the majority would be

permitted to transfer to a school where his race was the minority. At the evidentiary hearing, Dr. John

Miliziano, who was Appellants' "in-house desegregation expert," expressed ignorance about the requirement

to implement an MTM program:

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 [July 1971 Order] meant really

anything.

Manning, 24 F.Supp.2d at 1313. The evidence also showed that, from 1977 to 1996, no student had ever

applied for an MTM transfer, and Appellants had not made any effort to publicize or market the MTM

discusses Appellants' magnet programs. See id. at 1314-15. This portion of the opinion is very

confusing. It lists the arguments advanced by Appellees regarding magnet schools, but the

opinion never states whether it is adopting those arguments. In the opinion of December 4, 1998,

the district judge faults Appellants for their failure to develop magnet schools and programs,

except for one program at Tampa Bay Technical High School. See Manning, 28 F.Supp.2d at

1359. But neither opinion ever explains how Appellants' actions with respect to magnet programs

demonstrated bad faith.

We therefore conclude that the district judge did not base her finding of bad faith upon

Appellants' magnet programs. Even if the district judge did, in fact, base her finding of bad faith

on Appellants' magnet programs, such a finding would be clearly erroneous. In 1990, Appellants

moved to designate a magnet school, but Appellees opposed the motion. In successfully

opposing the motion, Appellees argued that "[t]he basic structure of desegregation in

[Appellants'] school system has remained constant and effective since 1971," and that a magnet

program would "introduce more uncertainty about whether schools will remain desegregated."

program. See id. at 1314; Manning, 28 F.Supp.2d at 1359.

While faulting Appellants on the MTM program, the district judge acknowledged that the July 1971

Order "did not specifically direct [Appellants] to market the [MTM] program." Manning, 24 F.Supp.2d at

1314. Furthermore, the district judge noted (and did not dispute) that no member of the Bi-Racial Committee

and no representative of Appellees had complained, prior to the mid-1990's, about the non-availability of an

MTM program. See id. at 1313 (quoting testimony of Dr. Miliziano). The district judge also found that when

Appellees did raise the lack of an effective MTM program, Appellants announced the program "to the

[school] district as a whole and ... took action to publish information about the program." Id. at 1312.

Although the district judge stated that an MTM program is an "indispensable remedy" and a "useful

part of every desegregation plan,"22 id. at 1314, the district judge did not explain why this particular MTM

program was needed to desegregate the Hillsborough County school district. In fact, as previously

mentioned, Dr. Stevens—Appellees' expert who was involved in the negotiations that led to the 1991 Consent

Order—conceded that an MTM program would not significantly impact the race ratios at the schools

Appellees were challenging as racially imbalanced. Furthermore, the Task Force Report and the 1991

Consent Order (both of which were approved by the district judge) failed to even mention the MTM program.

Lastly, notwithstanding the criticism of the MTM program, the district judge spoke favorably of Appellants'

overall desegregation efforts. See, e.g., id. at 1287 (stating that "[u]ndoubtedly, [Appellants'] desegregation

efforts demonstrate significant success"); id. at 1311 (stating Appellants "deserve acknowledgment for their

desegregation efforts thus far"); id. at 1312 (noting Appellants "have been relatively successful in

implementing desegregation techniques"); id. at 1325 (finding Appellants had acted in good faith with

respect to faculty desegregation and commending Appellants for taking recommendations from the Minority

Recruitment Task Force).

II. DISCUSSION

A. Standard of Review

Where the relief sought in the district court is the dissolution of an injunction, the order of the district

22

The district judge lifted this language from the Supreme Court's opinion in Swann, 402 U.S. at 26-

27, 91 S.Ct. at 1281. In the very same opinion, however, the Supreme Court warned that "[n]o per se rule

can adequately embrace all the difficulties of reconciling the competing interests involved [in

desegregating schools]." Id. at 26, 91 S.Ct. at 1281.

court is subject to a mixed standard of review.23 We review for abuse of discretion the failure to dissolve an

injunction as required by law. See Wilson v. Minor, 220 F.3d 1297, 1301 (11th Cir.2000). The district court's

application of law is subject to de novo review, while its findings of fact are subject to a clearly erroneous

standard of review under Fed.R.Civ.P. 52(a). See Sierra Club v. Martin, 110 F.3d 1551, 1554 (11th Cir.1997)

(quoting SunAmerica Corp. v. Sun Life Assurance Co. of Can., 77 F.3d 1325, 1333 (11th Cir.1996)). A

declaration of a school system's unitary status is a finding of fact and thus falls under the clearly erroneous

standard of Rule 52(a). See Lockett v. Bd. of Educ. of Muscogee County Sch. Dist., 111 F.3d 839, 841-42

(11th Cir.1997) (Lockett II); Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F.2d 945, 952 n.

3 (11th Cir.1989). Under this standard of review, "[w]here there are two permissible views of the evidence,

the [district court]'s choice between them cannot be clearly erroneous." Lockett II, 111 F.3d at 842; accord

Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). But

where a district court applies an incorrect legal standard which "taints" or "infects" its findings of facts, such

findings "lose the insulation of [Rule] 52(a) and judgment based thereon cannot stand." Corley v. Jackson

Police Dept., 566 F.2d 994, 1001 (5th Cir.1978) (internal quotations and citation omitted);24 accord Bigge

v. Albertsons, Inc., 894 F.2d 1497, 1502-03 (11th Cir.1990); Harris v. Birmingham Bd. of Educ., 712 F.2d

1377, 1381 (11th Cir.1983); Lincoln v. Bd. of Regents of Univ. Sys. of Ga., 697 F.2d 928, 938-39 (11th

Cir.1983); see also Solomon v. Liberty County Comm'rs, 221 F.3d 1218, 1227 (11th Cir.2000) (en banc)

(stating "Rule 52(a) does not inhibit an appellate court's power to correct errors of law").

B. Analysis

1. General Principles

Before analyzing the case before us, it is important to recall some general principles. In Brown I,

the Supreme Court held that de jure racial segregation practiced by school districts violates the Fourteenth

23

We raised sua sponte whether appellate jurisdiction existed in this case and requested briefs from

the parties. Since this is an appeal of an interlocutory order of the district court refusing to dissolve an

injunction, we do possess jurisdiction. See 28 U.S.C. § 1292(a)(1). We also raised sua sponte whether

the notice of appeal was timely filed. Appellants timely filed in the district court a motion to alter or

amend judgment under Fed.R.Civ.P. 59(e). As such, Appellants could file their appeal until 30 days after

the district court ruled on the Rule 59(e) motion. See Fed.R.App.P. 4(a)(4)(iv). Since the Appellants

complied with this time limit, we conclude Appellants timely filed their notice of appeal. Thus, we may

hear this appeal.

24

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as

binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on

September 30, 1981.

Amendment. See Lockett II, 111 F.3d at 842 (citing Brown I, 347 U.S. at 495, 74 S.Ct. at 692). To remedy

the illegal conduct, the Supreme Court ordered federal district courts to supervise local officials in

desegregating school systems. See id. (citing Brown v. Bd. of Educ., 349 U.S. 294, 301, 75 S.Ct. 753, 757,

99 L.Ed. 1083 (1955) (Brown II)). Federal judicial supervision of local officials, however, was intended to

be a temporary measure. See id. (citing Bd. of Educ. v. Dowell, 498 U.S. 237, 247, 111 S.Ct. 630, 637, 112

L.Ed.2d 715 (1991)).

A desegregation order is remedial in nature, for it is the means by which victims of discriminatory

conduct are restored to the position they would have occupied in the absence of such conduct. See Missouri

v. Jenkins, 515 U.S. 70, 87, 115 S.Ct. 2038, 2048, 132 L.Ed.2d 63 (1995) (citing Milliken v. Bradley, 418

U.S. 717, 746-47, 94 S.Ct. 3112, 3128, 41 L.Ed.2d 1069 (1974)). The purpose of federal supervision is not

to maintain a desired racial mix at a school. See Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434-

37, 96 S.Ct. 2697, 2704-05, 49 L.Ed.2d 599 (1976); see also Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct.

1430, 1447, 118 L.Ed.2d 108 (1992) (noting that "[r]acial balance is not to be achieved for its own sake").

Rather, a federal court may insist upon a racially balanced school only in those situations where a

constitutional violation has caused the school to become racially imbalanced. See id. at 494, 112 S.Ct. at

1447. As the Supreme Court instructed 30 years ago, "[I]n the 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." Swann, 402 U.S. at 31-32, 91 S.Ct. at 1283-83. Put simply, a school board has no obligation to

remedy racial imbalances caused by external factors, such as demographic shifts, which are not the result of

segregation and are beyond the board's control. See Jenkins, 515 U.S. at 102, 115 S.Ct. at 2055-56 (citing

Spangler, 427 U.S. at 434, 96 S.Ct. at 2703-04; Swann, 402 U.S. at 22, 91 S.Ct. at 1279).

The ultimate objective of any desegregation order is the "restoration of state and local authorities

to the control of a school system that is operating in compliance with the Constitution."25 Id. at 89, 115 S.Ct.

25

Local control is complementary, not contradictory, to the goal of eradicating illegal discrimination

from our nation's schools. The Supreme Court has spoken to this principle:

Returning schools to the control of local authorities at the earliest practicable date is

essential to restore their true accountability in our governmental system. When the

school district and all state entities participating with it in operating the schools make

decisions in the absence of judicial supervision, they can be held accountable to the

citizenry, to the political process, and to the courts in the ordinary course.... [I]t must be

acknowledged that the potential for discrimination and racial hostility is still present in

at 2049 (internal quotations and citation omitted). To guide district courts in assessing when it is appropriate

to restore local control, the concept of a "unitary" school system has evolved in federal jurisprudence. See

generally Freeman, 503 U.S. at 485-92, 112 S.Ct. at 1443-46 (1992). In evaluating whether a school system

is "unitary," a district court must carefully assess the facts and utilize its sound discretion to determine (1)

whether local authorities have eliminated the vestiges of past discrimination to the extent practicable, and (2)

whether local authorities have in good faith fully and satisfactorily complied with, and shown a commitment

to, the desegregation plan. See Lockett II, 111 F.3d at 842 (quoting Lee v. Etowah County Bd. of Educ., 963

F.2d 1416, 1425 (11th Cir.1992) (citing Dowell, 498 U.S. at 249-50, 111 S.Ct. at 638)). For a district court

to determine whether the vestiges of discrimination have been eliminated to the extent practicable, it must

examine the six facets of school operation, the so-called Green factors: student assignments, faculty

assignments, staff assignments, transportation, extra-curricular activities, and facilities. See id. (citing

Dowell, 498 U.S. at 245, 111 S.Ct. at 636 (quoting Green, 391 U.S. at 435, 88 S.Ct. at 1693)). Using its

discretion, a court may also consider other facets. See id. (citing Freeman, 503 U.S. at 492, 112 S.Ct. at

1446).

It is not uncommon for plaintiffs in school desegregation cases to allege, as Appellees did here, that

racial imbalances in student assignments, are a "vestige of discrimination." Until unitary status is attained,

the defendant school board has the burden of showing that any racial imbalance in the school system is not

traceable, in a proximate way, to the prior de jure segregation. See Freeman, 503 U.S. at 494, 112 S.Ct. at

1447. Stated differently, once a plaintiff shows de jure segregation (as Appellees did here in 1962, see supra

Part I.A), a presumption arises that all racial imbalances in a school district are the result of the de jure

segregation. See Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37

L.Ed.2d 548 (1973). To rebut this presumption, "a school board must prove that the imbalances are not the

result of present or past discrimination on its part." Lockett II, 111 F.3d at 843 (citing Swann, 402 U.S. at 25,

91 S.Ct. at 1281); accord Keyes, 413 U.S. at 211, 93 S.Ct. at 2699.

2. District Court's Reliance on Lockett I

our country, and its manifestations may emerge in new and subtle forms after the effects

of de jure segregation have been eliminated. It is the duty of the State and its

subdivisions to ensure that such forces do not shape or control the policies of its school

systems. Where control lies, so too does responsibility.

Freeman, 503 U.S. at 490, 112 S.Ct. at 1445.

a. Wrong Legal Standard

With the foregoing principles and standards in mind, we turn to the case before us. Appellants argue,

inter alia,26 that the district court committed reversible error by relying upon our opinion in Lockett v. Board

of Education of Muscogee County, 92 F.3d 1092 (11th Cir.1996) (Lockett I).27 In Lockett I, a panel of this

Court reversed a district court's finding of unitary status and ordered the district court to "retain jurisdiction

... to monitor the progress of the school district's desegregation efforts" until the school district could show

that it "ha[d] desegregated its schools to the maximum extent practicable." Id. at 1101 (emphasis added).

Lockett I was subsequently vacated by the same panel. See Lockett II, 111 F.3d at 840-45.

The district judge, in relying on Lockett I, applied the wrong legal standard. The law does not

require, as stated in Lockett I, that a school board eliminate the vestiges of past discrimination "to the

maximum extent practicable." 92 F.3d at 1101 (emphasis added). Rather, the law merely requires that the

vestiges of past discrimination be eliminated "to the extent practicable." Lockett II, 111 F.3d at 842

(emphasis added); accord Jenkins, 515 U.S. at 90, 115 S.Ct. at 2050;28 Freeman, 503 U.S. at 492, 112 S.Ct.

at 1446; Dowell, 498 U.S. at 250, 111 S.Ct. at 638; United States v. Georgia, 171 F.3d 1344, 1347 (11th

Cir.1999); Lee, 963 F.2d at 1425. The district judge incorrectly referred to the "maximum extent practicable

(or possible)" standard at least 12 times in her opinion of October 24, 1998, and four times in her order of

December 4, 1998. See Manning, 24 F.Supp.2d at 1287, 1289, 1290, 1292, 1293, 1301, 1312, 1326, 1334,

26

We need not address every argument advanced by Appellants with which we agree. We pause,

however, to highlight Appellants' contention that the district court must provide them with a "precise

statement" of their obligations under a consent decree. See, e.g., Jenkins, 515 U.S. at 101, 115 S.Ct. at

2055. The district judge avoided this requirement and held that she would not "tell [Appellants] which

specific means to employ" for achieving unitary status. Manning, 28 F.Supp.2d at 1360; see also id. at

1355 (refusing to describe "specific action" for Appellants to take). Even if we were to hold that

Appellants' school district was not unitary, we would nonetheless remand this case with instructions that

the district court provide specific guidance on what steps Appellants must take to achieve unitary status.

But since we conclude the school district is unitary, see infra Part III, there is no need for the district

judge to issue a statement, precise or otherwise, on Appellants' obligations.

27

The district judge was aware that Lockett I had been superseded by Lockett II, but she justified her

reliance on Lockett I upon the belief that "Lockett I reiterated established principles of law." Manning, 24

F.Supp.2d at 1311. District judges in this circuit, however, are required to adhere to the decisions of this

Court and the Supreme Court. See Fishman & Tobin, Inc. v. Tropical Shipping & Constr. Co., 240 F.3d

956, 965-66 n. 14 (11th Cir.2001).

28

The district court in Jenkins stated that its goal was to integrate the school district to the "maximum

extent practicable" and to the "maximum potential." 515 U.S. at 81, 101, 115 S.Ct. at 2045, 2055. The

Supreme Court expressly rejected this test and held that the proper test was whether the deficiencies

"attributable to prior de jure segregation had been remedied to the extent practicable." Id. at 101, 115

S.Ct. at 2055.

1335; Manning, 28 F.Supp.2d at 1356, 1359, 1360.

Accordingly, the critical issue is whether the district judge's repeated use of the wrong legal standard

sufficiently tainted or infected the findings of fact so as to strip those findings of the insulation normally

accorded under Rule 52(a). See supra Part II.A; Corley, 566 F.2d at 1001. We would not permit an

inadvertent use of language by a district court to constitute reversible error. Here, however, we are persuaded

that the district judge's mistake is more than mere inadvertence.29 As we discuss immediately below, the

district judge's findings on student assignments and good faith were tainted (and thus stripped of Rule 52(a)

protection) because the district judge held Appellants to a higher standard than the law requires.

b. Application of Wrong Legal Standard to Finding on Student Assignments

In Lockett, the critical issue was, as it is here, whether the racial imbalances in student assignments

precluded a finding of unitary status. See Lockett II, 111 F.3d at 842, 843. Lockett II held that, for a school

board to rebut the presumption of de jure segregation, the school board had to prove "the [racial] imbalances

[were] not the result of present or past discrimination on its part." Id. at 843; see also supra Part II.B.1. The

district court in Lockett II found the school board rebutted the presumption by presenting expert demographic

evidence showing the imbalances to be the result of voluntary housing patterns and demographic change.

See id. The school board's demographic evidence was not contradicted by plaintiffs' experts. See id. The

Lockett II majority affirmed the district court's finding as not being clearly erroneous. See id. at 844.

By contrast, Lockett I staked out a position on the law under which school boards would have been

held to a higher standard. Instead of affirming, the Lockett I panel would have remanded, so the district court

could have continued supervising the school board "until such time as a reliable body of data exist[ed] to

assure ... that the school district ha[d] desegregated its schools to the maximum extent practicable." Lockett

I, 92 F.3d at 1101 (emphasis added); accord Lockett II, 111 F.3d at 844 (Barkett, J. dissenting). Under

Lockett I, a school board would have been required to remedy racial imbalances even when "the imbalances

[were] caused by circumstances over which the school district has no control." Lockett I, 92 F.3d at 1099

(quoted in Manning, 24 F.Supp.2d at 1310). Moreover, according to Lockett I, to be declared unitary, it is

not enough for a school board to show demographic shifts as the cause of the racial imbalances, as

29

The phrase "to the extent practicable" is not meaningless surplusage. As the Third Circuit has

noted, "[T]he phrase 'to the extent practicable' implies a reasonable limit on the duration of [the] federal

supervision" because "extend[ing] federal court supervision indefinitely is neither practicable, desirable,

nor proper." Coalition To Save Our Children v. State Bd. of Educ. of Del., 90 F.3d 752, 760 (3d

Cir.1996).

"demographic shifts are not necessarily independent of prior unconstitutional practices."30 Id. at 1099 (cited

in Manning, 28 F.Supp.2d at 1359).

Lockett I, however, is not the law of this circuit. Rather, the law of the circuit must be distilled from

Lockett II. We reiterate that, to overcome the presumption that racial imbalances are constitutionally violative,

"a school board must prove that the imbalances are not the result of present or past discrimination on its part."

Lockett II, 111 F.3d at 843. Lockett II stands for the proposition that a school board overcomes this

presumption when it shows that some external force, which is not the result of segregation and is beyond the

school board's control, substantially caused the racial imbalances. See id. (upholding declaration of unitary

status when district court found demographic shifts caused racial imbalances); see also Jenkins, 515 U.S. at

102, 115 S.Ct. at 2055-56; contra Lockett II, 111 F.3d at 845 (Barkett, J. dissenting) (advocating contrary

proposition). Where a defendant school board shows that demographic shifts are a substantial cause of the

racial imbalances, the defendant has overcome the presumption of de jure segregation. See Lockett II, 111

F.3d at 843. Courts shall not assume that demographic shifts are a result of the past de jure segregation.

Contra Lockett I, 92 F.3d at 1099 (advocating contrary proposition); Lockett II, 111 F.3d at 845 (Barkett,

J. dissenting) (same). Such an assumption is improper because "[i]t is simply not always the case that

demographic forces causing population change bear any real and substantial relation to a de jure violation,

and the law need not proceed on that premise."31 Lockett II, 111 F.3d at 843 (internal alterations omitted)

(quoting Freeman, 503 U.S. at 496, 112 S.Ct. at 1448). Lastly, a plaintiff does not undermine the strength

of a defendant's demographic evidence by merely asserting that demographics alone do not explain the racial

imbalances.32 Rather, for a plaintiff to preserve the presumption of de jure segregation, the plaintiff must

show that the demographic shifts are the result of the prior de jure segregation or some other discriminatory

30

Judge Barkett, the author of Lockett I, further elaborated on this view in her Lockett II dissent. In

particular, Judge Barkett wrote that it was erroneous to "assume[ ] that as long as a school district can

point to some force not directly related to a school district's overt actions which is causing or exacerbating

racial imbalances, then the resulting imbalance is not traceable to past practices." Lockett II, 111 F.3d at

845 (Barkett, J. dissenting).

31

In addition, "[a]s the de jure violation becomes more remote in time and ... 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." Lockett II, 111 F.3d at 843 (quoting Freeman, 503 U.S. at 496, 112 S.Ct. at 1448)

(internal alterations included).

32

It is elementary that one may not rebut extensive evidence with a scintilla of evidence. See, e.g., 2

McCormick on Evidence § 338, at 416 (John W. Strong et al. eds., 5th ed. 1999).

conduct.

If the district judge had applied Lockett II, rather than Lockett I, her findings of fact would have led

her to the same conclusion as the magistrate judge with respect to student assignments. The district judge,

like the magistrate judge, found that demographic shifts were a "substantial" or "significant" reason for the

racial imbalances and that the racial imbalances were inevitable, irrespective of Appellants' efforts. See supra

Part I.B.3.a; Manning, 24 F.Supp.2d at 1303, 1311; Manning, 28 F.Supp.2d at 1356. With this finding of

fact, Appellants overcame the presumption that the racial imbalances in student assignments were the result

of de jure segregation. To preserve the presumption, Appellees were required to show that the demographic

shifts were the result of the past segregative practices or some other discriminatory conduct. Appellees made

no such showing. The district judge never found that the racial imbalances at the 17 challenged schools were

caused by the past de jure segregation or other discriminatory acts. In fact, the district judge found the exact

opposite. That is, the district judge found that Appellants did not deliberately cause the racial imbalances

through segregative policies or practices. See supra Part I.B.3.a; Manning, 24 F.Supp.2d at 1310. Appellees

merely persuaded the district judge that demographics alone did not account for the racial imbalances. See

id. at 1302 (refusing to find that a "shift in demography [was] the sole cause [of] the [racial] imbalance[s]"

in the school system). Such a finding is insufficient to deny Appellants a declaration of unitary status.

Accordingly, by applying the correct legal standard from Lockett II to the district judge's findings of

fact, we reach the same conclusion as the magistrate judge: Appellants have achieved unitary status with

respect to student assignments.

c. Application of Wrong Legal Standard to Finding on Good Faith

As discussed previously, the district judge had two interrelated areas of concern which precluded,

in her view, a finding of good faith: Appellants' apathy and the lack of an effective MTM program. See

supra Part I.B.3.b. The district judge's reliance on Lockett I undoubtedly infected her finding with regard to

Appellants' alleged apathy. The district judge, as noted above, expected Appellants to "desegregate the public

schools in Hillsborough County to the maximum extent practicable." E.g., Manning, 24 F.Supp.2d at 1287;

supra Part I.B.3.b. Such an expectation was erroneous, for the law does not require a defendant school board

to take every conceivable step in attempting to desegregate. See, e.g., Freeman, 503 U.S. at 493, 112 S.Ct.

at 1447 (expressly rejecting premise that "heroic measures must be taken to ensure racial balance"). Thus,

the district judge's concern about Appellants' alleged "apathy" was an error of law directly traceable to her

reliance upon Lockett I.

Further, Appellants' lack of an effective MTM program does not necessarily amount to a finding of

bad faith. For instance, in Lockett, the school board did not implement its MTM program until years after

the desegregation decree was entered and ignored other requirements of the desegregation decree. See Lockett

II, 111 F.3d at 844; Lockett I, 92 F.3d at 1100, 1101. Nonetheless, we affirmed a finding of good faith based

in part on the district court's finding that the school board had never violated a court order, had never been

enjoined or sanctioned, and had consulted with African-American members of community before modifying

the student assignment plan. See Lockett II, 111 F.3d at 843-44; contra Lockett I, 92 F.3d at 1100, 1101.

Likewise, in the case sub judice, Appellants never violated a court order, never were sanctioned, and

consulted extensively with the African-American community, including Appellees, prior to implementing

new student assignments under the 1991 Task Force Report. See supra Parts I.B.2 & I.B.3.b. Therefore,

based on Lockett II, the district judge clearly could have found the Appellants acted in good faith,

notwithstanding the lack of a viable MTM program.

Additionally, we are persuaded that, if the district judge had followed the law as set forth in Lockett

II, she would have concluded that Appellants have acted in good faith. As we explained in Lockett II, in

determining whether a school board has acted in good faith, a court should not dwell on isolated

discrepancies, but rather should "consider whether the school board's policies form a consistent pattern of

lawful conduct directed to eliminating earlier violations."33 Lockett II, 111 F.3d at 843 (internal quotations

omitted); see also Freeman, 503 U.S. at 491, 112 S.Ct. at 1446 (holding that "a court should give particular

attention to the school system's record of compliance"). Repeatedly in the October 26, 1998, opinion, the

district judge commended Appellants for their desegregation efforts. See, e.g., Manning, 24 F.Supp.2d at

1287, 1311, 1312, 1325; supra Part I.B.3.b. At the end of the opinion, the district judge further commented:

After evaluating the voluminous record in this case, the Court is convinced that [Appellants] have

a short road to travel [to attain unitary status]. Essentially, Defendants need to demonstrate that they

are willing to aggressively desegregate the school district to the maximum extent practicable.34

Manning, 24 F.Supp.2d at 1335. Based on the foregoing statement, we are convinced that, if the district judge

33

The focus is on the school board's pattern of conduct, and not isolated events, because the purpose

of the good-faith finding is to ensure that a school board has accepted racial equality and will abstain

from intentional discrimination in the future. See Lockett II, 111 F.3d at 843 (citing Freeman, 503 U.S. at

498, 112 S.Ct. at 1449). Focusing on isolated aberrations blurs a court's long-term vision.

34

In contrast to the district judge, the magistrate judge recognized that "[a] school board's affirmative

duty to desegregate does not require adoption of the most desegregative alternative available."

had applied the correct standard, she would have found (as the magistrate judge did) that Appellants acted

in good faith, notwithstanding the absence of an effective MTM program and other possible discrepancies.

Our conclusion is buttressed by two other points. First, the MTM program, as conceded by

Appellees' expert, would have been ineffective in desegregating the 17 challenged schools.35 As such, the

MTM program should have had only marginal relevance in analyzing whether Appellants' "policies form[ed]

a consistent pattern of lawful conduct directed to eliminating earlier violations." Lockett II, 111 F.3d at 843

(emphasis added) (internal quotations and citation omitted).

Second, discerning a school board's good faith is in some respects a subjective finding. Thus, such

a finding depends in part on the judge's personal observation of the witnesses. The magistrate judge, not the

district judge, observed all of the witnesses at the evidentiary hearing. Granted, the district judge was free

under 28 U.S.C. § 636 to make a de novo determination of the magistrate judge's findings. In other contexts,

however, we have cautioned district judges from overruling a magistrate judge's finding where credibility

determinations are dispositive. See, e.g., Proffitt v. Wainwright, 685 F.2d 1227, 1237 (11th Cir.1982) (noting

that, in criminal or habeas corpus cases, a district judge's reasons for rejecting a report and recommendation

must be consistent with the credibility choices made by a magistrate). In addition, the rationale for deferring

to a district court's finding of fact is that a trial judge is aware of the variations in demeanor which bear so

heavily in making a subjective determination. See Anderson, 470 U.S. at 575, 105 S.Ct. at 1512. Where, as

here, a district judge does not personally observe the witnesses in making a subjective finding of fact, we

view such a finding with skepticism, especially where, as here, the finding is contrary to the one

recommended by the judicial official who observed the witnesses.

III. CONCLUSION

The district judge's finding that Appellants have not achieved unitary status was tainted and infected

by reliance on an incorrect legal standard. As such, we reverse the district judge's orders of October 26, 1998,

and December 4, 1998. Upon remand, the district court shall enter judgment declaring the Hillsborough

County school system unitary. Therefore, federal judicial supervision of the Hillsborough County school

system shall cease.

REVERSED and REMANDED.

35

We are by no means suggesting that a desegregation plan cannot, or should not, include an MTM

program. The Supreme Court has spoken favorably of MTM programs. See Swann, 402 U.S. at 26-27,

91 S.Ct. at 1281.