Opposition Brief — Manning ex rel. Manning v. School Board of Hillsborough County

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Supreme Couri, U.S.

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"a JUL 18 2001

No. 00-1971

CLERK

In the

Supreme Court of the Anited States

Andrew L. Manning, et al.,

Petitioners,

The School Board of Hillsborough County, Florida

(formerly Board of Public Instruction of

Hillsborough County, Florida), et al.,

Respondents.

On PetiTION For Writ OF CERTIORARI

To Tue UNITED STATES CouRT OF APPEALS

For THE ELEVENTH CIRCUIT

RESPONDENTS' BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

W. Crossy Few THOMAS M. GONZALEZ

Few & AYALA Counsel of Record

109 N. BrusH STREET THOMPSON, SIZEMORE &

Suite 201 GONZALEZ, P.A.

TAMPA, FL 33602 TAMPA, FL 33602

(813) 229-6401 (813) 273-0050

Counsel for Respondents

BECKER GALLAGHER LEGAL PUBLISHING, INC., 5

CINCINNATI, OHIO 800-890-5001 3 1

—

LIST OF PARTIES

Pursuant to Supreme Court Rule 14.1(b), Respondent submits

the following list of parties: *

The School Board of Hillsborough County, Florida

(formerly known as the Board of Public Instruction of

Hillsborough County, Ftorida), Respondent.

Joe E. Newsome, as Chairman of the School Board of

Hillsbo-ough County, Florida, Respondent.

Doris Ross Reddick, as Vice Chairman of the School

Board of Hillsborough County, Florida, Respondent.

Glenn Barrington, as a Member of the School Board

of Hillsborough County, Florida, Respondent.

Carolyn Bricklemyer, as a Member of the School

Board of Hillsborough County, Florida, Respondent.

Carol W. Kurdell, as a Member of the School Board

of Hillsborough County, Florida, Respondent.

Jack R. Lamb, Ed.D., as a Member of the School

Board of Hillsborough County, Florida, Respondent.

Ann Olson, as a Member of the School Board of

Hillsborough County, Florida, Respondent.

Earl J. Lennard, Ph.D., as the Superintendent of

Schools for the School Board of Hillsborough County,

Florida, Respondent.

10.

12.

13.

14.

The class of all African-American minor children who

are eligible to attend the public schools of

Hillsborough County, Florida, and their parents

and/or next friends.

Andrew L. Manning, a minor, by his father and next

friend, Willie Manning, Petitioner.

Shayron B. Reed, and Sandra E. Reed, minors, by

their father and next friend, Sanders B. Reed,

Petitioner.

Nathaniel Cannon, Norman Thomas Cannon, Tyrone

and Darnel Cannon, minors, by their father and next

friend, Nathaniel Cannon, Sr., Petitioners.

Gail Rene Myers, a minor, by her father and next

friend, Randolph Myers, Petitioner.

* The individual Petitioners are listed here as they appeared

in the caption of the original complaint filed in this case in

1958, at which time the then minor Petitioners, with their

adult parents, were alleged to be adequate representatives of

the class. The Petitioners have not included in their petition’s

List of Parties the next friends who were original parties to

the complaint, and those Petitioners who were minors in 1958

obviously have reached majority. The Respondent is without

knowledge as to what, if any, status any of the original .

Petitioners occupy in the current context of this proceeding,

or the litigation from which it arises.

—————

LIST OF PARTIES

TABLE OF AUTHORITIES

TABLE OF CONTENTS

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

STATEMENT OF THE CASE

ARGUMENT

II.

If.

CONCLUSION

The Decision of the Court of Appeals

Does Not Conflict With This Court’s

Decisions or Those of Other Circuits

and it Does Not Improperly Shift the

Burden of Proof on Unitary Status

ey aie an

The Court of Appeals’ Interpretations

of the Good-faith Standard Does Not

Conflict With the Framework

Established by his Court’s Decisions

in Freeman and Dowell with the Tenth

Circuit’s Interpretation ...........

The Court of Appeals Did Not

Misapply Governing Law in its Review

of the District Court’s Factual Findings

ill

aw i at oo ie of Dy ae oe ie oe oe ae lee et ye oe! i ee Re

Se i oe oe he oe ee ee ee ee ee le fe ey

a a i a a oa a oe or ae oe oe ek er a ce 2 oo er ee) es oe See rey

TABLE OF AUTHORITIES

Cases Page

Brown v. Board of Education,

ie i i, a 21, 22, 23

Board of Education v. Dowell, 498 U.S. 237 (1991) .. . 19

Dowell v. Board of Education

8 F.3d 1501 (10" Cir. 1994) ....... 21, 23, 24

Freeman v. Pitts

eee 0. Os CP ak Re es passim

Jenkins v. Missouri, 122 F.3d 588 (8" Cir. 1997) ... . 23

Keyes vs. School District No.1, Denver, Colorado

BED We. POC PEEE ox bs cite sass 14, 17

Lockett v. Board of Education of Muscogee County

92 F.3d 1092 (11" Cir. 1996) (Lockett I) .. 12, 13

Lockett v. Board of Education of Muscogee County

111 F.3d 839 (11" Cir. 1997)

* | CEE 6 oso ek eee 12, 13, 14, 16, 26, 27

Missouri v. Jenkins, 515 U.S. 70 (1995) ........... 26

Swann v. Charlotte-Mecklenberg Board of Education,

Wee es Ee es eae een 2, 14, 20

Statutes and Rules

ea Ee ss oe es RS EAD 1

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Respondents, the School Board of Hillsborough

County, Florida, et al. (“School Board”), respectfully ask the

Court to deny the petition for writ of certiorari filed by

Petitioners Andrew Manning, et al., who seek review of the

decision of the United States Court of Appeals for the

Eleventh Circuit entered in this case on March 16, 2001. The

holding for which review is sought is a narrow one, based on

the specific and unique facts of this case. It does not conflict

with any decision of this Court or any Court of Appeals.

Neither does it decide an important federal question, nor

present any other basis warranting review by this Court.

STATEMENT OF THE CASE

In the case before the Court, the Eleventh Circuit

declared the public schools of Hillsborough County, Florida,

to be unitary after nearly forty years of court supervision. It

reversed the holding of the United States District Court for

the Middle District of Florida, in which that Court found that

the schools were not unitary and declined to restore local

control over the school system. The District Court reached

this determination after rejecting a contrary conclusion

contained in the report and recommendation of the Magistrate

Judge, to whom the District Court had committed the issue of

unitary status for trial and recommendation pursuant to 28

U.S.C.§ 636(b)(1)(C).

“Proper resolution of any desegregation case turns on

a careful assessment of its facts.” Freeman v. Pitts, 503 U.S.

467, 474 (1992). Therefore, the factual and judicial contexts

in which the Circuit and District Courts reached their

decisions was essential to their decision-making, as it is to the

determination of this petition. Petitioners’ statement of the

case is inadequate for the last purpose. The statement is

largely dependent on selectively taken portions of the Court

of Appeals’ and District Court’s orders, which have been

taken out of context and argumentatively presented. The

statement therefore omits much that is relevant and material.

This case began in 1958 with the filing of the

Petitioners’ complaint, which sought judicial intervention to

end Respondents’ racially segregated dual system of public

education and to allow African-American children to “attend

schools nearer their places of residence.” Resp. App. 1b-7b.

On August 21, 1962, the District Court held that Respondents

were in fact operating an unlawfully segregated school system

and ordered them to file a comprehensive plan for

desegregation. Pet. App. 19la.' Over the next nine years

following that order, Respondents submitted many such plans

and the District Court entered a number of orders, several of

which were appealed. /d.

‘ The effectiveness, or lack thereof, of the various plans

which Respondents submitted and implemented in the period

between 1962 and 1971, was described at length in the

District Court’s order of May 11, 1971. Resp. App. 8b- 77b.

That order was entered by the District Court acting sua sponte

only twenty-one days after this Court, in Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1 (1971),

described the wide breadth of a district court’s powers, and its

'References to the appendix to the petition will be made by

use of the symbol “Pet. App.” and page number(s). References to

the appendix to this brief will be made through use of the symbol

“Resp. App.” and page number(s). References to the petition itself

will be made through use of the symbol “Pet.” and page number(s).

—E——ES

obligation, to end and effectively remedy de jure racial

segregation occurring in a public school system. Armed with

that instruction, the District Court entered an order which

began with a recitation of the history of Respondents’

desegregation efforts, and made clear its dissatisfaction with

the level of Respondents’ commitment to desegregation as

well as their lack of success in attaining it.

The District Court then focused its attention on what

it referred to as “black schools,” i.e., 15 of Respondents’

schools having student populations which were all, or at least

90% African-Americans, and declared simply that

“[Respondents] must desegregate all [such] schools.” Resp.

App. 24b, n.13, 64b-65b. Conceding that some of the

segregation in Respondents’ schools might be de facto rather

than de jure, the District Court nevertheless concluded that

“all of the predominantly black schools must be eliminated.”

Resp. App., 62b, n.48, emphasis added.

The District Court explained its concerns, and its

intentions, noting in particular that:

There is no evidence of any substantiality in

the record supporting the position that

segregation in Hillsborough County is

attributable in any measurable degree to

voluntary housing patterns or other factors

unaffected by school board activity. As

indicated earlier, the record makes plain that

prior to and since 1954 certain schools in

Hillsborough County have been set aside for

black students and others for white students.

With exceptions these schools remain racially

identifiable. Over the years [Respondents]

have submitted numerous plans _ for

desegregation, not one of which has altered the

naked fact that most blacks attend schools

which are inordinately black whereas most

whites attend schools in which there are no

blacks or only minuscule numbers of blacks.

The Court has been unable to locate a single

instance where [Respondents] took positive

steps to end desegregation at a black school

and thereafter segregation § returned

fortuitously. Indeed, no serious attempt has .

ever been made to eliminate the many black

schools. Based on experience, the court

concludes that what resegregation there has

been is a consequence of the continued

existence of schools identifiable as white or

black. Resp. App. 62b-63b.

To remedy this situation, the District Court ordered

drastic and immediate action, intended to eliminate once and

for all Respondents’ ability to segregate students according to

race, by doing away with ail of the “black” schools which

Respondents had used for that unlawful purpose, and, in

addition, those schools at which African-Americans

constituted at least 50% of the student population. The Court

allowed Respondents only slightly more than thirty days in

which to formulate a plan which was to be effective in the

next school year, the start of which was then only four months

away. Resp. App. 67b-68b. The plan was to have as its

“primary objective” the “abolition of segregation in all

schools in the county,” and “in particular [those] now having

a student population at least 50% black” (a requirement which

involved 28 schools, including the 15 identified as “black”

under the Court’s 90% standard) /d., 58b, n.45. In

formulating the plan, Respondents were to:

begin with the proposition that white black

ratios 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. Resp. App. 68b.

While it was left to Respondents to formulate the

specifics of the desegregation plan, the District Court limited

their discretion by specifying the particular desegregation

tools which were to be used (“pairing, grouping, clustering,

and use of satellite zones”), adding:

In view of what has gone on before, any

proposed desegregation by use of rezoning or

gerrymandered zoning shall be supplemental,

secondary, and alternative to desegregation by

the techniques mentioned earlier . . . and shall

not be in lieu thereof. Resp. App. 69b.

Respondents timely responded to the District Court’s

directive with a plan that would immediately eliminate all

majority black schools. The plan was approved by the

District Court on July 6, 1971. Resp. App. 78b-96b. Under

the plan, which used only the tools favored by the District

Court, the county’s two “black” high schools would be closed

and their entire student populations distributed in satellites

among “white” high schools. Resp. App.82b-83b. All

“black” junior high schools were closed and converted to

seventh grade centers. African-American students formerly

attending “black” junior high schools would attend seventh

grade in one of these centers, with white students transported

for that grade. For grades eight and nine, the African-

American students, with a few exceptions, would be assigned

in satellites to formerly “white” schools. All “black”

elementary schools would be closed and their buildings used

for sixth grade centers, which would be attended by black and

transported white students in that grade, and all black students

would be distributed as satellites among “white” schools for

the remaining elementary grades. Resp. App. 80b-81b.

In approving the plan, the District Court noted that

although Petitioners “did not question the effectiveness of the

plan in desegregating the school system,” they did object to

the fact that the elimination of “black” schools placed a

disproportionate burden on black children, because no longer

having the neighborhood schools which had been ordered

closed, they would be transported in greater percentages than

white children, who retained their schools. Resp. App. 84b-

86b. The Court conceded the correctness of this assessment

of relative burdens, but overruled Petitioners’ objection,

noting that:

If each of the [majority black] elementary

schools retained its character as grades one

through six and each of the junior high schools

retained its character as grades 7, 8, and 9,

satellite zones would have tc be utilized in

order to bring whites into the formerly black

schools. This would provide an invitation to

either “white flight” or “black flight,”or both. .

Resp. App. 84b-85b.

After rejecting Petitioners’ objection, the District

Court found that the plan submitted by Respondents “fully

complies with the Court’s [May 11, 1971] order . . . and the

law and will result in the establishment of a unitary school

system. ...” Resp. App. 89b. In stark contrast to the

criticism of Respondents contained in its May 1971 order, the

District Court also wrote:

The record reflects the procedure followed by

[Respondents] in developing the plan. At

hearing the Court commended [Respondents],

their staff and attorneys for this procedure....

Without agreeing to the desirability of the

Court’s order [Respondents] followed it as

being law. For the record the Court repeats its

appreciation and commendation.

As has been emphasized in previous orders,

the school board has a_ continuing

responsibility. [Respondents] represent that the

plan can and will be effectuated. The Court

will require that this be done. Resp. App.

89b-90b.

The plan was in tact fully implemented, at the

beginning of the 1971-1972 school year. The result of that

action, as the District Court found in its December 4, 1998,

order denying unitary status, was that:

In the 1971-1972 school year, [Respondents]

had desegregated all Hillsborough County

Schools, with regard to student assignment; no

majority black school existed in the county.

Pet. App. 62a, emphasis added.

There was no majority black school in operation in

Hillsborough County in the 1971-1972 school year. No

school in operation that year had ever been a “black” school,

(although the buildings used for those schools now housed the

single grade centers which would be attended by students of

both races). Resp. App. 57b, n.44.

Additionally, at the District Court’s direction, in the

year following implementation of the desegregation plan, and

in each year thereafter, Respondents prepared two reports:

one showing the racial compositions of student and staff

populations at each county school, the other informing the

District Court and Petitioners of any and all proposed changes

to be made in the attendance zone of any school in the

upcoming year, with the racial mix of students projected to

result from that change. Each of these reports was filed with

the District Court and served on Petitioners’ counsel. /d.

From 1971 until 1994, Petitioners did not file any objections

to the existence of racially identifiable schools. Pet. App.

64a, 110a.

After reviewing the reports filed in late 1974 (the

fourth school year of the plan’s operation), the District Court

issued On its Own initiative an order noting that one of

Respondents’ 128 schools had become majority black, and

four others had high percentage black student populations.

Pet. App. 63a. The Court sua sponte directed Respondents to

file a supplemental plan to address these situations. Pet. App.

63a. Id. That supplemental plan projected decreases in the

percentages of black students at all of the schools in question.

Those decreases did not occur at two of the schools. Pet.

App. 64a. The District Court took no further action. At no

time after the implementation of the supplemental plan, until

the order of October 26, 1998, did the District Court find that

Respondents had in any way failed to comply with their

obligations under the desegregation plan, nor did the District

Court order the formulation of any additional supplemental

plan, nor the taking of any action addressed to the racial

composition of students at any school. Pet. App. 64a.

In 1990, Respondents sought to establish a magnet

program at Blake Junior High School, to reduce the

percentage of African-American students attending it.

imal

Petitioners objected, and the District Court therefore denied

Respondents’ request. To support of their objection,

Petitioners, acting through the same counsel who represents

them here, argued that:

The basic structure of desegregation in

(Respondents’] school system has remained

constant and effective since 1971. Pet. App.

23a, n.21, emphasis added.

Petitioners also argued that the introduction of the

proposed magnet school would “introduce more uncertainty

about whether schools would remain desegregated.” /d.

emphasis added.

In 1991, the parties agreed to a conversion of

Respondents’ school system from a elementary-junior high-

high school configuration to one based on elementary-middle-

high schools “clustered” in geographic divisions of the

county. Pet. App. 67a-69a. Under the proposal, the single

grade centers which were in the original plan were to become

magnet or middle schools. /d. The projected populations of

each of the schools in these clusters, several of which

included majority black schools, were agreed to by the parties

and incorporated in the District Court’s consent order. Resp.

App. 100b-101b.

From the 1977-1978 school year to the time of

hearing, Respondents made some 300 n.inor modifications in

student assignments, for purposes other than racial balance.

Pet. App. 65a. Each of these modifications was brought to

the attention of the District Court and Petitioners prior to its

implementation. None was rejected by the District Court. As ~

noted in the Magistrate’s first report and recommendation,

Petitioners “filed no objection nor otherwise complained to

the [District] Court about the existence of ‘racially identifiable

schools’ even though such schools had existed . . . almost

continuously since 1971." Pet. App. 299a. The District

Court, while rejecting the Magistrate’s conclusion of unitary

status, noted that Petitioners’ failure to object to racial

enrollments until 1994 “indicate[d] that there were no

perceived violations of the 1971 Order.” Pet. App. 125a.

In 1994, Petitioners filed an Amended Motion to

Enforce Court Order and Consent Order and for Further

Relief, in which they alleged for the first time that

Respondents were violating the District Court’s original

desegregation plan and the consent order by operating schools

with majority or near-majority African-American populations.

Pet. App. 70a. In the motion, Petitioners pointed to sixteen

specific schools with student populations in which African-

Americans comprised at least 40% of the whole. Pet. App.

70a-71a. None of these schools had ever been a majority

black school at any time prior to, or at the time of, the

implementation of the 1971 plan. Each was predominantly

“white” in 1971, and “immediately after the 1971 plan was

implemented [became] racially balanced.” /d., Pet. App. 15a-

16a.”

The District Court designated a Magistrate Judge to

hear Petitioners’ motion. The Magistrate Judge conducted

bench a trial and on June 23, 1995, issued a report and

recommendation in which she recommended denial of the

motion “because there have been no violations of the Court’s

*As the District Court specifically found, the number of

Respondents’ racially imbalanced schools is “relatively small.”

Pet. App. 130a. At the time that the motion to enforce was filed,

Respondents operated 149 schools: Pet. App. 70a.

orders.” Pet. App. 312a.

On November 17, 1995, the District Court deferred

ruling on the report and recommendation, citing the need to

make a “full fledged determination of whether [Respondents

have] in fact achieved unitary status,” but making no

comment on the Magistrate’s conclusion that there had_been

no violation of the Court’s orders. Pet. App. 71a. The

District Court referred the determination of unitary status to

the same Magistrate Judge who had recommended a finding

that Respondents had not violated the 1971 plan or consent

order. The Magistrate Judge held a second trial and on

August 26, 1997, issued a second report and recommendation,

which recommended a finding of unitary status. Pet. App.

188a-3 14a.

On October 26, 1998, the District Court entered an

order in which it rejected the Magistrate’s recommended

finding of unitary status at the same time it accepted virtually

all of the Magistrate’s subsidiary and other findings. Pet.

App. 57a-187a. The District Court ruled the 1994 amended

motion to enforce to be moot. Pet. App. 187a. Respondents

filed a Motion to Alter or Amend Judgement. On December

4, 1998, the District Court denied that motion insofar as it

sought amendment or al «ration, but granted it in part as a

request for clarification. Pet. App. 42a-56a.

Respondents appealed both of the District Court’s

orders to the Eleventh Circuit Court of Appeals. A three

judge panel of the Court issued its opinion on March 16,

2001, in which it reversed the District Court and remanded

the case with instructions that Respondents be released from

court supervision. Petitioners did not seek rehearing.

Neither did they seek to stay the Court of Appeals’ judgment.

On April 26, 2001, the District Court therefore entered

judgment in accordance with the Eleventh Circuit's mandate,

and terminated its supervision of Hillsborough County

schools.

ARGUMENT

Petitioners present three arguments for the granting

of their petition. Respondents will answer each in the order

originally presented.

I. The Decision of the Court of Appeals Does Not

Conflict With This Court’s Decisions or Those of

Other Circuits and it Does Not Improperly Shift the

Burden of Proof on Unitary Status Issues to Plaintiffs.

Petitioners misstate the holding for which review is

sought. The specific, express, and narrow holding of the

Court of Appeals was that the District Court applied an

incorrect legal standard to the record before it, and its reliance

on that standard “tainted and infected” its ultimate conclusion

that Respondents had not attained unitary status as well as

certain, specified subsidiary findings. Pet. App. 40a-41a.

Petitioners do not even address the Court of Appeals’

holding, much less challenge its correctness. Indeed, they

cannot, given the irrefutable fact that the District Court based

its analysis and holding on the Eleventh Circuit’s decision in

Lockett v. Board of Education of Muscogee County, 92 F.3d

1092 (t1" Cir. 1996) (“Lockett 1”). In its opinion, the

District Court expressly acknowledged that this opinion had

been vacated, by the same panel which decided it, in Lockett

v. Board of Education of Muscogee County, 111 F.3d 839

(11" Cir. 1997) (“Lockett II”), but explained that the

withdrawn opinion “reiterated established principles of law

which are applicable to the case at hand.” Pet. App. 128a.

Petitioners do not contest the Court of Appeals’ rejection of

that rationale.

Neither do Petitioners challenge the Court of Appeals’

description of the fatal impact of the District Court’s

erroneous reliance on Lockett I. They accept without

objection the Court of Appeals’ conclusion that the District

Court incorrectly considered the Magistrate’s report and

recommendation, and assessed Respondents’ conduct, under

the standard that school districts seeking release from

desegregation orders must show fulfillment with their

obligations to “desegregate to the maximum exient

practicable,” when the proper measure, quoted in the petition

itself, is whether “the vestiges of past discrimination [have

been] eliminated ‘to the extent practicable.’” Pet. App. 32a,

emphasis in the original.

Petitioners cite Lockett I]. They make no mention

whatsoever of Lockett I, or the District Court's incorrect use

of the vacated opinion. That omission, and Petitioners’

failure to even acknowledge the actual holding at issue, are

fatal to their argument of conflict, because Petitioners cite no

opinion, of any court, with which the true holding of the

Eleventh Circuit conflicts. Realizing this fact, Petitioners

avoid what they cannot attack, attributing to the Court of

Appeals a holding it did not pronounce and attempting -to

focus this Court's attention on a conflict which does not exist.

Petitioners complain that the Eleventh Circuit engaged in

nothing less than a “fundamental reallocation of the burden of

proof in school desegregation cases.” Pet. 9. There was no

such reallocation. The Eleventh Circuit applied the correct

law to the case at its hand. Its holding was informed by the

application of that law, not on reallocation of the burden of

proof, and there is no conflict between the Court of Appeals’

ruling and the rulings of this or any other court.

Petitioners’ arguments are constructed entirely upon

dicta contained in the Court of Appeals’ opinion. Petitioners

mischaracterize these words as a holding that once a school

district, placed under a court’s supervision because of de jure

racial segregation, demonstrates that demographics are a

“substantial cause” of currently existing racial imbalances, the

district no longer carries the ultimate burden of proving that

the imbalances are not the product of past discrimination.

The Court of Appeals made no such pronouncement, nor did

it apply such a principle.

The Eleventh Circuit began its review of the District

Court’s ruling by enunciating the indisputably correct

standard to be applied by courts assessing a school district’s

unitary status:

[u]ntil unitary status is attained, the defendant

school board has the burden of showing that

any racial imbalance in the school system is

not traceable, ina proximate way, to the

prior de jure segregation. . . . Stated

differently, once a plaintiff shows de jure

discrimination (as [Petitioners] did here in

1962 . . .), a presumption arises that all racial

imbalances in a school district are the result of

the de jure segregation. To rebut this

presumption, ‘a school board must prove that

the imbalances are not the result of present or

past discrimination on its part.’ (citing

Freeman, 503 U.S. at 494; Keyes v. School

Dist. No. 1, Denver, Col., 413 U.S. 189, 208;

Swann, 402 U.S. at 25; and Lockett II, 111

F.3d at 843). Pet. App. 30a.

This standard, with the presumption of causation

which is a part of it, was applied by the Court of Appeals,

which found that Respondents had met it. Part of that holding

was based on demographic evidence offered by Respondents.

Petitioners do not challenge the findings both of the District

Court and the Court of Appeals that Respondents proved that

demographic change was a “substantial” cause of the racial

imbalance of which Petitioners complain. They complain

only that the evidence was insufficient to prove that

demographics alone caused the offending imbalances.

Respondents were not required to prove that

population shifts caused all of the racial imbalance identified

by Petitioners. They had to show that the present imbalance

was not a vestige of their past acts of de jure discrimination.

That obligation included the task of overcoming a judicially

imposed presumption in favor of causation. The Court of

Appeals found that Respondents defeated the presumption that

- they caused the existing imbalances by presenting proof that

demographics were a substantial cause of those imbalances.

That finding did not relieve Respondents of their ultimate

burden of proving that they did not cause the imbalances.

The court of Appeals in fact applied that burden and found

that Respondents had met it.

In reality, Petitioners do not seek the benefit of the

established and unquestionably appropriate presumption

described above, but rather want to impose on Respondents a

different obligation, to rebut the non-existent presumption that

demographic change, found or conceded by the Court of

Appeals, the District Court, the Magistrate Judge, and

Petitioers themselves (Pet. App. 17a), was the result of

segregative school board action. It is only the imbalance that

carries the benefit of a presumption. There is no concentric

presumption that a non-segregative cause of the imbalance

proffered by a school board to explain the imbalance is itself

a vestige of past illegality.

It was in response to Petitioners’ arguments to the

contrary, and in the specific context of demographic evidence

proffered by Respondents, that the Court of Appeals wrote the

dicta on which Petitioners’ assertion of conflict solely

depends:

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. Courts shail not assume that

demographic shifts are a result of the past de

jure segregation. Such an assumption is

improper because ‘it 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.

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

balance. Rather for a plaintiff to preserve the

presumption of de jure segregation, the

plaintiff must show that demographic shifts are

the result of the prior de jure segregation or as

some other discriminatory conduct. Pet. App.

35a-36a (citations and footnote omitted,

emphasis added).

The Court of Appeals’ recitation of controlling legal

principles is correct in every way. The language used,

although attributed to Lockett //, has its origins in Freeman,

503 U-S. at 496-497, in which this Court instructed:

The vestiges of segregation that are the

concern of the law in a school case may be

subtle and intangible but nonetheless they must

be so real that they have a causal link to the de

jure violation being remedied. It 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 presumption.

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.

In order to dispel the presumption of causation applied

to racial imbalances within its schools, Respondents were not

limited to the use of demographics. Instead they were

required to show, as Petitioners correctly observe, “that this

segregated schooling is not also the result of intentionally

segregative acts.” Pet. 9, (citing Keyes, 413 U.S. at 208,

emphasis added). Respondents could use demographics to

meet this burden. But they could also make use of other

proof, and they did.

Respondents proved, and the District Court found, that

the 16 schools (of the 150 operated by Respondents in the

1995-1996 school year, Pet. App. 15a) of whose racial

imbalance Petitioners complained had never had African-

American majorities in their student populations prior to

implementation of the 1971 desegregation plan, kad in fact

been “white” schools before that year, and were racially

balanced immediately upon the plan’s implementation.

Respondents proved, as the District Court found, that they

took no action to change the boundaries of any of these

schools, or any other action, to intentionally cause, or to

exacerbate, the race ratios of those schools’ student

populations. App. 125a, 129a. Respondents proved that they

effected no boundary change, nor did they construct, close, or

reconfigure any school, or otherwise alter school attendance

patterns, without prior notice to Petitioners and the Court, and

the District Court took no action to disapprove the proposed

changes or alter race ratios, save for its orders of 1975,

requiring a supplemental plan, and 1990, sustaining

Petitioners’ objection to the establishment of a magnet

program to Blake.

To all of this proof Respondents added unrebutted

evidence that there had been significant and substantial shifts

in racial demography, not in Hillsborough County as a whole,

but within the relevant neighborhoods which populated the

schools in question.’ To this record, the Magistrate and the

Court of Appeals, but not the District Court, applied the

proper legal standard and found it had been met.

Petitioners do not attack that narrow holding of the

Eleventh Circuit, which focused on the District Court’s use of

an erroneous legal standard. They instead contend,

erroneously, that the Court of Appeals assigned to Petitioners

a burden which should have been borne by Respondents, and

*As the Magistrate found, and no one challenges, from

1970 until 1990 (the latter being the year of the most current census

data available at the time of hearing), the number of Hillsborough

County census tracts having populations with 25% to 50% black

residents more than doubled, while tracts with 50% or more blacks

have increased by 40%. Pet. App. 205a.

that this “reallocation” conflicts with the holdings of this

Court and two other Courts of Appeals. There was no

reallocation.

Petitioners assertions of conflict between the Court of

Appeals and this Court’s holdings rely on cases which do not

address the issue Petitioners argue. Petitioners cite Board of

Education v. Dowell, 498 U.S. 237 (1991), for the

proposition that before a court releases a formerly segregated

school system from its oversight, it must determine that, to

the extent that demographics account for any racial imbalance,

the “change is ‘not attributable to the former de jure regime

or any later actions by school officials.” Pet. 10. This Court

did not establish a presumption that it was. The Court of

Appeals did not free Respondents of the burden enunciated in

Dowell, or impose a contrary burden on Petitioners. The

District Court did not find, and Petitioners do not assert, that

actions taken by Respondents caused any of the demographic

changes proven to have occurred.

There is no conflict between the Court of Appeals’

holding and Dowell. The recognition of the presumption

argued by Petitioners would create conflict, with this Court’s

holding in Freeman, 503 U.S. at 496-497, discussed above.

The Court of Appeals’ actual holding does not.*

4 Neither does the Court of Appeals’ comment that a

plaintiff does not “undermine” a defendant school board's

demographic evidence by contending that the proof does not

explain all of the imbalance at issue demonstrate a reallocation of

the burden of proof. It is simply a comment on the insufficiency of

the evidence offered by Petitioners, through their expert witness,

which could have no intended purpose other than to “undermine”

Respondent’s offer of proof. It in no way suggests that Petitioners

had an obligation to rebut, much less to prove.

Neither does the language of Swann, 402 U.S. at 21,

quoted at page 11 of the petition, demonstrate conflict. That

language speaks to the need for district courts overseeing

school desegregation to monitor school construction and

closings. The District Court’s own 1971 order included the

express direction that “all school construction, school

consolidation and site selection . . . shall be done in a manner

which will prevent the recurrence of the dual school

structure.” Resp. App.69b. The District Court did monitor

compliance. From the date of its 1971 desegregation order to

the present Respondents have not constructed, closed,

consolidated, or reconfigured any school without first

informing the District Court and Petitioners of their

intentions.

When Respondents sought to establish a magnet

program at Blake Junior High School to reduce the percentage

of African-American students at that school, and Petitioners

objected, the District Court prevented Respondents from

proceeding. As the Court of Appeals noted, this ruling

delayed the implementation of Respondents’ magnet school

program, the scope of which the District Court later found

inadequate. Pet. App. 22a.

There has been no finding by the District Court that

Respondents did not meet their obligations in the areas of

school construction, or school openings and closings. Indeed,

in denying unitary status, the District Court expressly found

that Petitioners’ “opening and closing of schools has generally

maintained or improved racial balance” and disavowed any

inclination to become further involved in school siting and

construction issues. Pet. App. 173a-174a. In its earlier

orders, the District Court had required approval of school site

locations. Resp. App. 88b.

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Petitioners’ remaining arguments alleging conflict with

this Court’s opinions rely upon the concurring opinion

authored by Justice Blackmun in Freeman, 503 U.S. at 513,

not the law pronounced in the majority opinion. Even at that,

Petitioners provide no evidence of conflict. The words cited

speak to the need to determine that school board actions did

not create or contribute to demographic imbalance. They do

not impose a presumption that they did.

Neither does the Eleventh Circuit’s opinion conflict

with those of the Tenth Circuit in Brown v. Board of Educ..,

978 F.2d 585 (10 1992) and Dowell v. Board. of Educ., 8

F.3d 1501 (10" Cir. 1994). Brown merely affirms the burden

on school districts to demonstrate “the absence of a causal

connection between any current condition of segregation and

the prior system.” 978 F.2d. at 590. The Eleventh Circuit

properly enforced that same burden here. Petitioners assert

that, under the Tenth Circuit's “approach,” a school system

cannot meet its burden through demographic evidence “unless

the current racial imbalance is ‘only a product of demographic

changes outside the school district’s control.’” Pet. 14-15.

In fact, and as the complete portion of the dicta from which

Petitioners take only a part makes clear, the fundamental

determination to be made is whether the more condition of

imbalance is a vestige of the former system. Brown, 978 F.2d

at 591. Brown does not make use of a presumption that a

desegregated school system caused the demographics.

Indeed, Brown demonstrates the correctness of the

Eleventh Circuit’s holding, and its consistency with

controlling law. In rejecting the district court’s opinion at

issue in Brown, the Tenth Circuit wrote:

In the present case, the district court did state:

‘Demographic __ forces, uncontrolled by

defendants form the racial composition of the

schools.’ This comment, however, is in

considerable tension with the district court’s

observations that demographics have had a

desegregative effect on student assignment....

Moreover, in light of the school district’s

failure to ever operate without racially

identifiable schools, and the district court’s

failure to apply the appropriate legal standard,

the court’s conclusion that demographics

caused segregation simply does not amount to

a supportable holding thai the current condition

of segregation is wholly unconnected with the

prior de jure school system. The absence of a

moment when [the school system] achieved

compliance with the Constitution is vital

because it is only ‘[o]nce the racial de jure

violation has been remedied [that] the school

district is under no duty to remedy imbalance

that is caused by demographic factors.’ 978

F.2d. at 590, n.6.

Respondents not only operated without racially

identifiable schools, at the District Court’s instruction they did

so after closing all schools which had been used to segregate

African-American students. Even as it denied unitary status,

the District Court found that “a race neutral attendance pattern

was implemented in the case at hand,” and noted that

Respondents did desegregate their system. Pet. App. 125a-

126a, 62a. Demographics in Hillsborough County were not

desegregative in regard to the schools being examined, and the

District Court so found. The Tenth Circuit found in Brown

that the district court opinion which it reviewed was “in

considerable tension” with the record on which the opinion

had to be based, and the lower court used an incorrect legal

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standard. So too did the Eleventh Circuit in the case before

it.

Petitioners’ use of the Tenth Circuit’s opinion in

Dowell is also unavailing. They write in their petition that the

Tenth Circuit requires a showing that “the school system did

not play a role in, or contribute in any way to, the

demographic change. Pet. 14, citing Dowell, 8 F.3d at 1511,

n.6, emphasis added. In fact, what the Tenth Circuit, relying

on the concurring opinions in Freeman, required, at the cited

part of its holding, was a showing by the board that “its own

policies did not contribute directly to the racial imbalance of

the schools.” Jd. emphasis added. And it did so after quoting

the principle that “[The fact t]hat there was racial imbalance

in student attendance zones was not tantamount to a showing

that the school district was in noncompliance with the decree

or its duties under the law.” Dowell, 8 F.3d at 1511 (citing

to Freeman, 503 U.S. at 494).

Neither does the Eleventh Circuit’s holding conflict

with the holding of Jenkins v. Missouri, 122 F.3d 588 (8" Cir.

1997). The Eighth Circuit upheld the district court's

determination that the school board had failed to demonstrate

that prior inequities in student achievement caused by de jure

segregation had been re.: edied and it therefore bore the onus

of the presumption that its actions had caused the current

conditions. As in Brown, the court in Jenkins dealt with a

system unlike Respondents.’ In this case, at the District

Court’s direction, the racially segregated patterns of student

assignment were abolished once and for all in 1971.

Moreover, in Jenkins, the Eighth Circuit noted that the district

court’s finding was supported by the fact that the school

district’s expert was unable to explain a third of the gap that

existed between black and white student achievements. There

was no unexplained gap in this case. ;

The same expert who testified in Jenkins testified in

this case, and he opined without qualification that

demographics did cause the racial imbalances that existed in

Respondents’ schools, and that none of these imbalances was

caused by Respondents’ actions. Pet. App. 120a. This

conclusion was shared by Respondents’ demographic expert.

Petitioners met that proof by providing their own witness,

who could say only that the work of Respondents’

demographer was “very good” but did not allow him to

attribute all of the imbalances to demographics. App. He did

not identify the gap between Respondents’ expert’s data and

“all.” He did not testify that it was substantial.

Petitioners do not contend that the remaining cases

they cite conflict with the Eleventh Circuit’s holding, only that

they do not support it. Pet. 15, n.15. The cases therefore

provide no support for the granting of the writ. Petitioners

have not in any way addressed the actual holding of the Court

of Appeals. They have not shown any conflict between that

holding and that of any other Court.

II. The Court of Appeals’ Interpretation of the Good-faith

Standard Does Not Conflict With the Framework

Established by this Court’s Decisions in Freeman and

Dowell and with the Tenth Circuit’s Interpretation.

Petitioners complain that the Court of Appeals failed

to apply the proper legal standard in reversing the District

Court’s finding that Respondents did not demonstrate good

faith sufficient to warrant a finding of unitary status.

Specifically, Petitioners, relying on the Tenth Circuit’s

opinion in Dowell, 8 F.3d 1501, complain that the Court of

Appeals did not require Respondents to show “future-oriented

board policies manifesting a continued commitment to

desegregation.” Pet. 21, citing Dowell, 8 F.3d at 1513. This

argument is new to Petitioners’ litigation strategy, appearing

for the first time in their petition.

In her report and recommendation, the Magistrate

Judge specifically found that Respondents had demonstrated

good faith sufficient to support a finding of unitary status.

Pet. App. 265a-266a. The Magistrate reached that conclusion

by applying the standard enunciated in Freeman, 503 U.S. at

498, on which Petitioners now rely. In the exceptions they

filed to the Magistrate’s report and recommendations,

Petitioners did not raise the contention now argued in support

of the petition, contending only that Respondents had not

shown past compliance with the District orders. Resp. App.

112b-113b. They did not argue the lack of “ future-oriented”

policies, nor did they challenge the Magistrate’s finding of

Respondents’ future intentions. The District Court treated the

issue of Respondents’ good faith only as it related to past

compliance with its orders. While it rejected the Magistrate’s

finding of good faith, the District Court did not criticize the

Magistrate’s focus, or reject her determination, based on

testimony from Respondents’ Superintendent and most School

Board members which she, but not the District Court had

observed, that Respondents had “accepted the principle of

racial equality and will not revert back to a dual system.” Pet.

App. 265a-266a.

The Court of Appeals reversed the District Court

based on its uncontested conclusion that the District Court

applied an incorrect standard of law which infected and tainted

the District Court’s determinations. Once the Court of

Appeals rejected the District Court’s finding that Respondents

had not fulfilled all of their court imposed obligations, the

District Court’s ultimate conclusion of a lack of good faith,

which depended entirely on past noncompliance, could not be

sustained. Petitioners make no complaint as to these findings.

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The Tenth, Eleventh, and all other Circuit Courts of

Appeals look to the post-desegregation order past to predict a

school board’s future compliance with the Constitution. Both

are bound by the reality that compliance with a desegregation

order can be assessed only with reference to that order, which

must include a “precise statement” of the district’s

obligations. Missouri v. Jenkins, 515 U.S. 70, 101 (1995).

Here the Eleventh Circuit applied the proper law to the record

created by the parties and the District Court. It committed no

error in doing so.

III. |§ The Court of Appeals Did Not Misapply Governing

Law in its Review of the District Court’s Factual

Findings.

Petitioners’ last contention is that the Court of Appeals

subjected the District Court’s findings to “more stringent

scrutiny” because the trials which produced the record on

which it made those findings were conducted by the

Magistrate Judge. They contend that this heightened analysis

deprived Petitioners of the benefit of the clearly erroneous

standard, which should have been used to review the findings

in question. Once again, Petitioners misstate the true holding

of the Court of Appeals. The Court held that the District

Court’s findings were “tainted and infected” by its use of an

incorrect legal standard. For that dispositive reason, the

Court of Appeals rejected the District Court’s findings made

after that misinformed analysis.

If the district court had applied Lockett II,

rather than Lockett IJ, her findings of fact

would have led her to the same conclusion as

the magistrate judge with respect to student

assignments. Pet. App. 36a.

Additionally, we are persuaded that, if the

district judge had followed Locket II, she

would have concluded that [Respondents] have

acted in good faith. Pet. App. 38a.

Petitioners’ final point turns on the fact that the Court

of Appeals noted in dicta that its conclusion of District Court

error on the issue of good faith were “buttressed” by two

points. Pet. App. 39a-40a. These were the District Court’s

discussion of the extent of Respondents’ use of a majority-to-

minority transfer policy, and the fact that because a judicial

determination of good faith “is in some respects subjective, ”

deference should have been paid to the Magistrate’s finding of

it. Id. Tellingly, Petitioners do not complain about the Court

of Appeals’ discussion of the former. They accept, as did the

District Court based on Petitioners’ expert’s testimony, that

Respondents’ more aggressive use of their majority-to-

minority policy would have had no significant effect on the

student populations of the schools at issue before it.

Petitioners take issue with the Court of Appeals findings in the

areas of statistical demographic evidence and good faith.

However, the Court of Appeals spoke of deference to the

Magistrate’s findings only in the context of the latter, and then

only as support for a conclusion reached on other grounds.

The Court did not, as Petitioners incorrectly assert at Pet. 25,

find the Magistrate’s resolution of credibility “dispositive.”

The Court of Appeals’ holding did not depend on any

determination that the Magistrate’s findings were entitled to

more weight than they were due, or the Magistrate’s

resolutions of credibility. It found only that having applied

the proper standard of law, the Magistrate’s conclusions were

correct, while the District Court’s, because they were guided

by the wrong law, were not.

The Court of Appeals did not ignore the clearly

erroneous doctrine. It expressly noted that the application of

an incorrect legal principles requires an exception to the

appellate principle requiring the demonstration of clear error

before overturing a trial court’s findings of fact. Pet. App.

26a-27a. Petitioners do not challenge this statement of law,

or the Court of Appeals’ determinations based on it. They

sidestep again, relying on more dicta in the Court of Appeals’

opinion to reargue the Court of Appeals subsidiary findings.

The District Court noted, despite its findings of a lack

of good faith, that Respondents had only a “short road to

travel” to unitary status. App. 185a. It expressly found that

Respondents had been “relatively successful in implementing

desegregative techniques. App. 130a. And it concluded that,

“[{uJndoubtedly, [Respondents] have been effective in

desegregating [their] system.” App. 93a. To hold, as the

Court did, that Respondents nevertheless could not be

declared unitary, because they did not take unspecified

additional steps, was error.

In fact, and as the Court of Appeals found,

Respondents’ demographics data were reliable, and the

District court used them as a basis for its finding, stated

several times in its opinion, that demographics were a

“substantial cause of racial identifiability” in Respondents’

schools. Pet. App. 108a. The District Court, using that data,

expressly found it “probable that these few [schools contested

by Petitioners] would have become racially imbalanced

regardless of [Respondents’] efforts.” Pet. App. 110a. It

found, using the same data, that the schools which were

racially imbalanced were all located in the vicinity of other

schools with high black enrolments and making adjustments

to the attendance zones for the purpose of improving balance,

“would be the expense of neighboring schools which are on

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the verge of becoming racially identifiable.” Pet. App. 96a,

120a. It accepted the opinion of Respondents’ expert, using

the same data, that “shifts in the inner-city population made

it very difficult to adjust attendance boundaries to maintain

[racial balance].” Pet. App. 95a.”

Moreover, the District Court’s stated concerns with the

demographic data were that they included more potential

students than would be attending the various schools in

question and reflected black percentages less than those

reflected in actual school attendance. The concerns are not

material. The District Court found that the imbalanced

schools being addressed served attendance areas which were

largely unchanged for long periods of time. Pet. App. 88a-

93a. No African-American students were brought to these

schools from outside the attendance areas. Pet. App. 209a.

Thus it was undisputed that each and every student attending

any of the schools in question lived in its attendance zone,

regardless of whether he or she was accurately recorded by

census takers. And the unquestioned thrust of the report

authored by Respondents’ expert was that Hillsborough

County experienced dramatic black population growth in

several of its geographical distinct parts. This thesis was not

challenged by Petitioners, and was accepted by the District

Court, based on the only data offered at trial.

‘The District Court also noted that Petitioners’ expert

conceded that redrawing boundaries to improve racial balance at

one school could worsen it at others. Pet. App. 120a. While the

expert also opined that Hillsborough County was not highly

segregated and, therefore, redrawing boundaries remained a viable

option, the District Court noted that this last opinion was reached

based on consideration of only five schools. Pet. App. 120a-121a.

To all of this must be added that facts that the District

Court, in 1971, specifically rejected the concept of

transporting large numbers of white students to attain racial

balance, because of concern for “flight,” that this concept was

confirmed in 1998 by the same Court, writing that “bus[ing]

children across the county to ensure racial compositions that

comport with the county-wide ratios . . . would not be

practicable and was not required by the Court’s 1971 Order

. . . the constitution or governing law,” the express finding

that Respondents’ school openings and closings “generally

maintained or improved racial balance” (Pet. App.173a), and

the findings that “[Respondents] have not “affirmatively

exacerbated racial imbalances. . . .” (Pet. App. 129a), and

“(there is no indication that the racial identity of

[Respondents’] schools has been deliberately caused by

segregative policies or practices by [Respondents] (Pet. App.

125a).” In short, Respondents proved all that was required of

them to demonstrate unitary status, and the Court of Appeals

properly so found.

CONCLUSION

The holding of the Eleventh Circuit in this case was

that the District Court applied the incorrect legal standard to

the record before it, and that error infected and tainted its

ultimate conclusion to a point that reversal was required.

Petitioners do not challenge that holding. Their attempts to

raise issues and matters not decided by the Court of Appeals

does not warrant a grant of certiorari.

W. Crosby Few

Few & Ayala

109 North Brush Street

Suite 201

Tampa, Florida 33602

813-229-6401

Respectfully submitted,

Thomas M. Gonzalez

Counsel of Record

Thompson, Sizemore

& Gonzalez, P.A.

109 North Brush Street

Suite 200

Tampa, Florida 33602

813-273-0050

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APPENDIX 1

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

TAMPA DIVISION

[Filed December 10, 1958]

Civil Action No. 3554

Julian A. Blake, Clerk

ANDREW L. MANNING, a “minor,

by his father and next Friend, WILLIE

M. MANNINGS; SHAYRON B. REED

and SANDRA E. REED, minors, by

their father and next friend,

SANDERS B. REED; NATHANIEL

CANNON, NORMAN THOMAS

CANNON, TYRONE CANNON and

DARNEL CANNON, minors, by their

father and next friend, NATHANIEL

CANNON, SR.; and GAIL RENE

MYERS, a minor, by her father

and next friend, RANDOLPH MYERS,

Plaintiffs,

THE BOARD OF PUBLIC

INSTRUCTION OF

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HILLSBOROUGH COUNTY,

FLORIDA and CLYDE McLEOD,

AL CHIARAMONTE, JOHN COLEMAN

and MARVIN GREEN, Members of the

Board of Public Instruction of

Hillsborough County, Florida and

J. CROCKETT FARNELL,

Superintendent of Public Instruction in

Hillsborough County, Florida,

Defendant.

COMPLAINT

Jurisdiction

1. The jurisdiction of this Court is invoked pursuant to

title 28, United States Code, §1343(3), this being an action

which is authorized by law, Title 42, United States Code,

§1983, to be commenced by any citizen of the United States

to redress the deprivation under color of state law, statute,

ordinance, regulation, custom or usage of rights, privileges

and immunities secured by the Constitution and laws of the

United States. The rights here sought to be redressed are

rights guaranteed by the due process and equal protection

clauses of the Fourteenth Amendment to the Constitution of

the United States and by Title 42, United States Code, §1981.

Type of Proceeding

2. This is a proceeding for a permanent injunction

enjoining the cefendants herein from continuing to pursue

their policy, custom and usage of operating the public schools

of Hillsborough County, Florida on a racially segregated

basis, in violation of rights secured to the plaintiffs by the due

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Complaint - December 10, 1958

process and equal protection clauses of the Fourteenth

Amendment to the Constitution of the United States and by

Title 42, United States Code, §1981.

3. This proceeding is brought es a class action by the

plaintiffs on behalf of themselves and on behalf of other

persons similarly situated, pursuant to the provisions of Rule

23(a)(3) of the Federal Rules of Civil Procedure, The

plaintiffs and the members of the class which they represent -

are minor Negro children and their parents, who are citizens

of the United States and of the State of Florida, residing in the

City of Tampa, Flcrae All of the minor children are eligible

to attend the publi. elementary schools maintained and

operated by defendants. The minor children are all similarly

effected by the policy of the defendants which is attacked in

this complaint in that all the minor plaintiffs are required to

attend public elementary schools which are maintained and

operated by defendants for Negro children exclusively and are

denied the right to attend certain other schools which are more

conveniently located for them solely because of their race and

color. The persons which constitute this class are so numerous

as to make it impracticable to bring each member of the class

before the court, but there are common questions of law and

fact involved affecting the several rights of the members of

the class and a common relief is sought for all of the members

of the class. The minor plaintiffs and their adult parents

adequately represent the class.

4. The plaintiffs in this case are Andrew L. Mannings,

a minor, by his father and next friend, Willie M. Mannings;

Shayron B. Reed and Sandra E. Reed, minors, by their father

and next friend, Sanders B. Reed; Nathaniel Cannon, Norman

Thomas Cannon, Tyrone Cannon and Darnel Cannon,

Complaint - December 10, 1958

minors, by their father and next friend, Nathaniel Cannon,

Sr.; and Gail Rene Myers, a minor, by her father and next

friend, Randolph Myers. The minor plaintiffs and their fathers

are Negro citizens of the United States and of the State of

Florida, residing in the City of Tampa, Florida, which is

located in Hillsborough County, Florida. Each minor plaintiff

is eligibie under the laws of the State of Florida to attend the

public elementary schools operated by he defendants in this

case. Each minor plaintiff, with the exception of one, Gail

Rene Myers, is presently enrolled in a Negro elementary

school under the jurisdiction, management and control of

defendants. Gail Rene Myers will be eligible to enroll in

school for the first time in September 1959.

Defendants

5. The defendants in this case are The Board of Public

Instruction of Hillsborough County, Florida and Clyde

McLeod, Al Chiaramonte, John Coleman and Marvin Greene,

members of The Board of Public Instruction of Hillsborough,

County, Florida and J. Crockett Farnell, Superintendent of

Public Instruction of Hillsborough County, Florida. The

Board of Public Instruction maintains and operates the public

school system of Hillsborough County, Florida, pursuant to

the laws of the State of Florida. The defendant J. Crockett

Farnell is the Superintendent of Public Instruction of

Hillsborough County, Florida and, as such is the chief

administrative officer of the Board of Public Instruction of

Hillsborough County, Florida. The individual members of the

Board of Public Instruction of Hillsborough County, Florida,

determine the policies of the Board.

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Complaint - December 10, 1958

Policy Of Which The Plaintiffs Complain

6. The plaintiffs herein allege that the defendants,

acting under color of the authority vested in them by the laws

of the State of Florida, have pursued and are presently

pursuing a policy of operating the public school system of

Hillsborough County, Florida on a racially segregated basis.

Pursuant to this policy, 72 of the public schools of

Hillsborough County are limited to attendance by white

students only and 18 schools are limited to attendance by

Negro students. Pursuant to this policy, many Negro students,

including some of the minor plaintiffs, who reside nearer to

schools limited to white students are required to attend

schools limited to Negro students which are considerably

removed from the places of their residences. In some

instances, some of the minor plaintiffs and other minor

Negroes similarly situated are required to travel as much as

ten miles to attend a Negro elementary school, whereas they

reside only two blocks from a white elementary school.

Defendants’ Refusal to Change the Policy

7. On or about August 16, 1955, the defendants were

formally petitioned by Negro parents of children eligible to

attend the public schools of Hillsborough County, Florida, to

abolish the segregation policy complained of herein. This

formal, petition was followed by several letters on behalf of

the Negro parents requesting defendants to desegregate the

public schools of Hillsborough County, Florida. Despite this

petition and despite the several letters directed to the

defendants, the defendants have refused to discontinue the

policy of operating the public schools of Hillsborough

County, Florida on a racially segregated basis. Defendants’

een

LES eT eS

Complaint - December 10, 1958

refusal to change the policy of operating the public schools of

Hillsborough County on a racially segregated basis operates

to prevent the plaintiffs from being assigned to white schools

nearer to their places of residence which they would attend if

they were white and which they presently desire to attend.

Irreparable Injury

8. As a result of the refusal of the defendants herein to

discontinue the policy of operating the public school system

of Hillsborough County, Florida, on a racially segregated

basis, the minor plaintiffs herein and the other minor Negro

children similarly situated, have suffered and shall continue

to suffer injury which is irreparable to them. It is, therefore,

necessary for this court to issue an injunction enjoining the

segregation policy in order that this irreparable injury to

minor plaintiffs herein shall cease. The plaintiffs have no

other speedy or adequate remedy at law to redress the injury

complained of herein.

WHEREFORE, plaintiffs respectfully pray that this

court advance this cause on the docket and order a speedy

hearing of this case and that after such hearing this court enter

a permanent injunction forever restraining and enjoining the

defendants, their agents, employees, attorneys and successors

and all persons in active concert and participation with them,

from continuing to pursue the policy of operating the public

schools of Hillsborough County, Florida on a racially

segregated basis and enjoining them from refusing to permit

the minor plaintiffs, and other minor Negro children similarly

situated, to attend schools nearer their places of residence

solely because of the race and color of said minor plaintiffs.

Complaint - December 10, 1958

Plaintiffs pray that this court will allow them their

costs herein and grant them such other, additional, or

alternative relief as may appear, to the court to be equitable

and just.

Francisco A. Rodriguea

703 Harrison/Street

Tampa 2, Florida

Constance Baker Motley

Thurgood Marshall

10 Columbus Circle

New York 19, N. Y.

Attorneys for Plaintiffs

APPENDIX 2

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

*No. 3554 Civ. T

Wesley R. Thies, Clerk

[Filed May 11, 1971]

ANDREW L. MANNINGS., et al, )

Plaintiffs, )

)

VS. )

)

THE BOARD OF PUBLIC )

INSTRUCTION OF )

HILLSBOROUGH )

COUNTY, FLORIDA, et al )

Defendants )

)

OPINION AND ORDER

This is a school desegregation case. Named as

defendants are the Board of Public Instruction of Hillsborough

County, Florida, the members of the Board, and the

Opinion and Order - May 11, 1971

Superintendent of Public Instruction of Hillsborough County.’

Hereinafter they will be referred to as "defendants "or "school

board.”

Since 1954 it has been clear that segregated schools

are illegal and that 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 and

consistently opposed by certain of the defendants, is legal.

To obviate any doubt that there is and has been state-

compelled segregated schools in Hillsborough County, which

this Court and others have previously found and again so

finds, this opinion and order will necessarily be in some

detail.

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

' Since the institution of this action the boards of public

instruction have been renamed school boards. Art.9 § 4(a), Fla.

Const. 1968; Chapter 69-300, Laws of Florida 1969; Section

230.21, Florida Statutes 1970. County superintendents of public

instruction have been renamed superintendents of schools. Art.9 §

5, Fla. Const. 1968; Chapter 69-300, Laws of Florida 1969;

Section 230.321, Florida Statutes 1970.

Under the provisions of Rule 25(d), F.R.Civ. P. the School

Board of Hillsborough County, the present members of the School

Board, and the incumbent Superintendent of Schools of

Hillsborough County are now the defendants in this action as the

successors in office of the 1958 defendants.

secseiiamn ia i

Opinion and Order - May 11, 1971

April 20, 1971, Supreme Court Opinion in Swann_v.

Charlotte-Mecklenburg Board of Education, US.

, 39 U.S.L.W. 4437 (1971) 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.

On April 14, 1971, the Court.received a letter from

the Superintendent of Schools of Hillsborough County, Dr.

Raymond O. Shelton. Part of the letter reads:

In response to a delegation of parents

representing the Gorrie and Carver Elementary

Schools in Tampa, the Hillsborough County

Board of Public Instruction has directed that I

inform the Court of the Board's desire to

"unpair" schools in this County. It is the

strong feeling of the parents from Gorrie and

Carver Schools, a feeling in which the Board

concurs, that education in the paired schools is

deteriorating rather than improving.* * *

The parents have documented many short

comings in these schools which they attributed

to pairing and are very concerned about the

damage that is being done to children and also

the damage that is being done to the public

school system by "white flight".

The Court's most recent attempt to persuade and then

require defendants to operate their school system in

10b

Opinion and Order - May 11, 1971

conformity with the United States Constitution occurred in

August 1970. At that time several orders were issued calling

for the desegregation of various schools in Hillsborough

County during the 1970-1971 school year. Since August 1970

important changes in law and fact affecting this case have

supervened.

The school board filed a report in November 1970

which clearly indicated that the Court's desegregation orders

were not having the intended effect of abolishing the dual

_system of schools in Hillsborough County. Second, the Court

of Appeals for the Fifth Circuit handed down a string of

opinions with respect to the disestablishment of

segregated.school systems. Finally, on April 20, 1971, the

Supreme Court of the United States in four 9-0 decisions set

forth with clarity and precision the responsibilities of district

courts and school boards in achieving an end to state-

compelled school segregation.

A federal court is bound to consider any change, either

in law or fact, which has supervened and affects a prior

judgment. Bell v. Maryland, 378 U.S.226 (1964); Singleton

v. Jackson Municipal Separate School District, 419 F.2d 1211

(5 Cir.1969) . The Ccurt will therefore re-examine the status

of the Hillsborough County School System from the

standpoint of all essentials required to convert a dual school

system into a unitary one.”

2 The Court will concern itself principally with only one

of the six essential elements which go to disestablish a dual system--

student assignment.

11lb

Opinion and Order - May 11, 1971

HISTORY OF THE CASE

This action was begun in December 1958, over 12

years ago.’ It is the oldest case on the active docket of the

Court.*

The original complaint, filed December 10, 1958,

alleged in part:

* * * the defefidaiis, acting under color of the

authority vested in them by the law of the State

of Florida, have pursued and are presently

pursuing a policy of operating the public

school system of Hillsborough County,

Florida, on a racially segregased basis.

Pursuant to this policy, 72 of the public

schools of Hillsborough County are limited to

attendance by white students only and 18

schools are limited to attendance by Negro

students. Pursuant to this policy, many Negro

students including some of the minor plaintiffs,

who reside nearer to schools limited to white

> At the time this suit was instituted counsel for plaintiffs

included Thurgood Marshall, an Associate Justice of the Supreme

Court since 1967, and Constance Baker Motley, a District Judge in

the Southern District of New York since 1966.

The papers filed in this case, including pleadings,

motions, exhibits, depositions, orders, and so forth, now weigh a

total of 62-1/2 pounds and, when stacked on top of each other, rise

2 feet, 3 inches off the ground. :

12b

Opinion and Order - May 11, 1971

students are required to attend schools limited

to Negro students which are considerably

removed from the places of their residences. In

some instances, some of the minor plaintiffs

and other minor Negroes similarly situated are

required to travel as much as ten miles to

attend a Negro elementary school, whereas

they reside only two blocks from a_v white

elementary school.° [Emphasis supplied. ]

The complaint was dismissed by a judge of the

Southern District of Florida, now retired, on August 7, 1959,

on the ground that plaintiffs had not exhausted their

administrative remedies available under the Florida Pupil

Assignment Law. Section 230.232, Florida Statutes.

Plaintiffs appealed, and on April 13, 1960, the Court of

Appeals reversed. Mannings Vv. Board of Public Instruction of

Hillsborough County, 277 F. 2d 370 (5 Cir. 1960) (hereafter

Mannings I).

The Court of Appeals held:

The Board seems to proceed on the

assumption that the presence of the

Assignment laws on the statute books legally

excludes the possibility of the Board's

continuing a policy of racial segregation in the

5 Complaint, filed December 10, 1958. p.4

the Southern District of Florida until October 28, 1962, when the

Middle District of Florida was created. See Pub. L. 87-562, 76

Stat. 247, now codified in 28 U.S.C. § 89.

13b

Opinion and Order - May 11, 1971

county schools. It follows, it says, that

injunctive relief would be inappropriate. This,

of course, does not follow. Mannings I, 277

F.2d at 373.

After referring to "[t)he failure of appellee [i.e., the school

board] to show any disposition to abandon the segregation

policy, long pursued, and, since 1954, known to be illegal,"

the Court of Appeals declared:

We conclude that, without being

required to make application for assignment to

a particular school, the individual appellants,

both for themselves and for the class which

they represent, are entitled to have the trial

court hear their evidence and pass on their

contention that the pupil assignment plan has

not brought an end to the previously existing

policy of racial segregation. In the event proof

of this fact is made appellants would be

entitled to their injunction as Mannings I, 277

F.2d at 375.

Subsequent to the reversal there were further

proceedings in this case. Non-jury trial was held December 4-

6, 1961, before another judge who has since been elevated to

the Court of Appeals.’

On August 21, 1962, almost four years after the suit

was commenced, Findings of Fact and Conclusions of Law

” Judge Bryan Simpson

14b

Opinion and Order - May 11, 1971

were entered. Based on the evidence the Court found as

matters of fact:

6. Prior to 1954, the public schools of

Hillsborough County were operated on a

completely segregated basis, i.e., certain

schools were maintained and operated for the

exclusive attendance of Negro children and

certain schools were maintained and operated

for the exclusive attendance of white children.

The Negro schools were staffed by Negro

personnel and the white schools were staffed

by white personnel.

7. Prior to September, 1961 there was no

change in the racial composition of any

Hillsborouyh County school. On that date one

seven (7) year old Negro boy (not a plaintiff

here) was admitted to Bayside School, a school

for handicapped children in the county.* * *

12. At the time of trial there were

approximately 80,000 children enrolled in the

114 public schools of Hillsborough County, 20

of which schools are Negro schools and 94 of

which are white schools. There are

approximately 3,500 teachers. Attendance

zone lines are established for each of the

elementary schools as required by Florida Law

(Section 230.23 Fla. Stat.) School attendance

area lines are revised each year for the purpose

of utilizing each school to its capacity.

15b

Opinion and Order - May 11, 1971

In numerous instances attendance area

lines for white and Negro schools overlap

requiring Negro students to travel a

considerable distance to attend a racially

segregated school, when schools limited to

white students are located within close

proximity to their residence. Some of the

minor plaintiffs here attend a Negro

elementary school ten (10) miles from their

residence, whereas they reside within two of\r

three blocks from _a white school.

The junior and senior high schools are

operating on the feeder system. This means

that graduates of Negro elementary schools are

customarily promoted to Negro junior high

schools and in turn to Negro senior high

schools, and that graduates of white

elementary schools are promoted to white

junior high schools and in turn to white senior

high schools. Thus, the compulsory biracial

system started with elementary school through

separate attendance areas carries through the

final grade of high school.

Plant City is a community of about

15,000 inhabitants near the eastern edge of

Hillsborough County, with a white high school

in the east end of that town and a Negro

junior-senior high school in the west end of the

town. There are Negro and white residential

sections near each high school. However,

Negro students from the east end of town cross

16b

”

NR AMER: Ra AA ak

ain WP

GE Wie S MELA ST MDT RSP arh NAIR SR Sell steht oa ‘sini

Ae NG ROT Aad Rea Chea alate Sek CREA Aen ONLINE

Serre ee eT ee

Opinion and Order - May 11, 1971

the town to attend the Negro school and white

students from the west end of town cross the

town to attend the white high school.*

This pattern of mixed residential areas

close to school exists in a number of other

sections of the county. In each instance racially

segregated attendance is brought about by

reason of separate, overlapping dual school

zone lines for white and Negro schools. In

addition to the Ybor City section, such

neighborhood areas include Old Port Tampa

and West Tampa.* * *

13. * * * [The Record] is a clear

demonstration of the way in which the Florida

Pupil Assignment Law, and the resolutions

adopted by the defendant Board thereunder,

has been used as an instrument to balk attempts

at desegregation, and not as a means to

accomplish desegregation. Few parents have

the time and the patience to follow through to

the unexpected success that Mr. Saunders

achieved a year and a half after he started

citizens. Certainly however the r

blacks have been obliged to attend schools not nearest th

in order to perpetuate segregation.

8 At hearing on October 5, 1962, counsel for the school

board asked the Court to amend its Findings so as to state that the

evidence also indicated that many white students traveled

considerable distances to attend white schools despite the existence

of black schools closer to their homes. The request was denied

since this is an action to vindicate the rights of black American

ecord is clear that both whites and

eir homes

17b

Fe eg Se SE aw ie oleae te De Ae ree

Opinion and Order - May 11, 1971

trying to enter his six year old child in the first

grade of the elementary school nearest_his

home.

14. Whatever its merits in the abstract, the

Florida Pupil Assignment Law, has been and

is being discriminatorily and unconstitutionally

applied by the defendant Board as a means of

effectively resisting desegregation of the

defendant school system. [Emphasis supplied]

Also on the basis of the evidence Judge Simpson concluded as

a matter of law that:

1. Onand prior to May 17, 1954, the public

school system of Hillsborough County was

operated on a compulsory biracial basis

pursuant to the Constitution* * *and the laws

of the State of Florida. * * * Separate schools

were constructed, operated and maintained,

staffed by white personnel for white pupils

only. Separate schools for Negro pupils only

were constructed, maintained and operated,

staffed by Negro personnel.

2. Despite the United States Supreme Court

decisions in Brown v. Board of Education of

Topeka, Kansas, 347 U.S. 483 (May 17, 1954)

and 349 U.S.294 (May 31, 1955), and Cooper

vy. Aaron, 358 U.S.1 (September 29,1958)

holding all state laws which either require or

permit racial segregation in the public schools

to be unconstitutional under the Fourteenth

18b

aE TIRE FAAS

of he ae a Or ah a tik ioe * ”;

df A het BO PRR in RSG ANA IRAE ahh on a

Sk atta Dy ek A ih

Opinion and Order - May 11, 1971

Amendment, the defendants have continued to

operate the Hillsborough County School

System on a. racially segregated basis as a

matter of custom, policy and usage. No steps

have been taken by defendants to reorganize

this biracial school system into a single, non-

racial school system.* * *

4. The duty to initiate desegregation of the

public school system of Hillsborough County,

is cast upon the defendant school authorities

under the decision in the instant case by the

Court of Appeals for the Fifth Ciscuit.* * *

» The existence of the Florida Pupil

Assignment Law and the opportunity to apply

thereunder for reassignment does not

automatically and ipso facto relieve the

defendants of their duty to operate the school

system under their charge on a non-racial

tan.* **

The basic fault inherent in the present

application of the criteria of the Pupil

Assignment Law is tkat only after a Negro

child has first been assigned to a segregated

school, under the area attendance zone lines

now in force, is he permitted to seek

reassignment. * * *to remove discrimination,

the initial assignment must not be based on

racial grounds. * * *

19b

ae Se a

Opinion and Order - May 11, 1971

6. The evidence shows that the Florida

Pupil Assignment Law has been applied by

these defendants in an unconstitutional manner

to effect an unconstitutional result, that is to

say, it has been applied so as to perpetuate and

maintain racial segregation in the public

schools of Hillsborough County, and it has

been applied so as to defeat and evade in a

racially discriminatory fashion, the attempts of

parents of Negro children to transfer their

children to previously all white schools. * * *

in 1960 and 1961, when Negro parents sought

reassignment of their children to white

schools, the law was used to subject these

pupils to investigation, tests, deliberations and

determinations not applied to the application of

white pupils seeking reassignment to white

schools or to Negro. pupils seeking

reassignment to Negro schools.

In accordance with the Findings of Fact and

Conclusions of Law of that date, an injunctive decree was

issued on August 21, 1962. The decree found that the equities

of the cause were with plaintiffs and permanently enjoined

defendants and their successors in office from operating a

racially discriminatory school system in Hillsborough County.

The school board was given until October 30, 1962, to file a

comprehensive plan of desegregation.

The plan, filed October 29, 1962, provided for

integration of one grade a year, beginning with the first grade

in the 19631964 school year. Under the plan the dual system

of separate attendance areas for the first grade in each of the

20b

Opinion and Order - May 11, 1971

schools wkere dual areas had theretofore existed would be

abolished and a single attendance area was to be provided for

attendance therein by first grade students located in such

attendance area. Every child entering the first grade was to

have the option of attending either (a) the school nearest his

residence, or (b) the school nearest his residence wherein

members of the child's race were numerically predominant.

This arrangement was to be extended one grade a year each

successive school year.”

Plaintiffs objected to the plan and submitted their own

plan. It was their proposal that the school board draw up new

attendance areas without regard to race for all its elementary

schools, with elementary school children being required to

attend the elementary school within their zone. The school

board would be required by January 1, 1964, to submit a plan

for desegregating all other grades.'°

By order entered May 8, 1963, Judge Simpson

approved the school board's plan with minor modifications.

Judge Simpson wrote:

To the extent that the injunctive

features of the August 21, 1962 decree are not

ordered immediately enforced herein, and in

later orders of the Court, it is emphasized that :

deferment thereof is dictated by practical

considerations and by the court's firm

9 Defendants’ Plan, filed October 29, 1962.

10 plaintiffs’ Proposed Plan of Desegregation, filed

November 16, 1962.

21b

Opinion and Order - May 11, 1971

conviction that orderly step by _ step

implementation of its August 21, 1962 decree

is both beneficial and necessary.* * *

Unmodified, the plan as submitted and

herein approved would require twelve (12)

years, on a grade a year basis, before complete

desegregation of Hillsborough County schools

would be accomplished. It is extremely

doubtful that the present Board of Public

Instruction or its successors in office will find

it necessary or desirable to stretch the process

out to the fall of 1974 (this year's entering first

graders will at that time be rising high school

seniors. The amendment of the plan so as to

accelerate its grade a year provisions should be

and will be a matter for recurring

reconsideration by the Court, upon application

of plaintiffs or defendants, or upon the Court's

Own motion.

Following the order of May 8, 1963, these

proceedings continued with unabated vigor. Motions and

pleadings were filed, additional discovery was undertaken,

exhibits and reports were docketed, hearings were held, and

orders were entered.

The school board expedited its plan for desegregation

by one year for the 1965-1966 school year, so that the plan's

provisions were applied to fourth, as well as first, second, and

Opinion and Order - May 11, 1971

third graders.'' The plan was again expedited the following

year: during the 1966-1967 school year it was applicable to

all students in grades one through six.’

Upon Judge Simpson's appointment to the Court of

Appeals the case was assigned to Judge Joseph P. Lieb in

early 1967.

On May 15, 1967, Judge Lieb entered an Order on

Motion for Further Relief which superseded the order of May

S, 1963, and directed the implementation of a new plan of

desegregation. Commencing with the 1967-1968 school year,

a single system of non-racial attendance areas was to be

established for all Hillsborough County schools. Each student

was to be assigned to the school or schools in the attendance

area of his residence. Where there was more than one school

in such attendance area offering the same grade to which the

student was eligible, he would have a “free choice” among

such schools, and no choice was to be denied for any reason

other than overcrowding.

Transfers to schools outside an attendance area would

be perm/tted for handicapped students or students with special

course needs. A majority to minority transfer provision was

adopted; that is, the school board would on request permit any

student to transfer from a school where his race was in the

majority to one where it was in the minority. Finally, the

'' See Defendants’ Fourth Supplemental Progress Report,

filed November 30, 1965.

'2 See Defendants’ Fifth Supplemental Progress Report,

filed November 8, 1966.

23b

Opinion and Order - May 11, 1971

Order required the defendants to take prompt steps to equalize

facilities at the formerly black schools.

On its face the plan appeared to be a zoning-type

desegregation plan, but actually it was a type of freedom of

choice plan. It combined the use of attendance areas with

freedom of choice, the freedom of choice being limited to the

schools within the student's attendance area. Most of the

white schools were placed in attendance areas containing only

one school. But every school that was black was placed in

attendance areas with one or more white schools.'* Students

in these areas were thus given the option of attending a white

school or a black school. As the school board later phrased it,

this “enabled the students, without regard to race to have a

free choice of more than one school where the student's race

was in the minority.”

On December 16, 1968, plaintiffs filed a motion for

further relief. It alleged:

[T]he report on the operation of the Freedom

of Choice Plan filed with the Court by

defendants pursuant to the My 15, 1967 Order

of this Court demonstrates that the Freedom of

'> This Court considers and defines a white school as a

school that is attended by white students only, or whose student

body is at least 95% white. A black school is a school with a

student population that is all black or at least 90% black. See

Supplemental Findings of Fact, filed March 31, 1970; Singleton v.

Jackson Municipal Separate School District, 434 F.2d 927, 931 (5

Cir.1970).

'* Defendants' Comprehensive Plan for Racially Non-

Discriminatory School System, filed April 15, 1969, p. 15.

24b

Opinion and Order - May 11, 1971

Choice-Attendance Areas Plan fails to provide

a real prospect for dismantling the dual system

at the earliest practicable date. During the

choice period for the 1968-69 school year out

of approximately 7,200 Negro elementary

school children in Hillsborough County, only

approximately 1,800 chose to attend white

elementary schools and cf approximately 2,700

Negro high school students, only 850 chose to

attend white high schools, and less than twenty

(20) white elementary students chose to attend

formerly all Negro schools, and no white high

school students chose to attend all Negro high

schools. * * * in the Junior high schools no

white students chose to go to formerly all

Negro junior high schools.

After a hearing on the motion, Judge Lieb entered an

order on March 5, 1969, directing the school board, no later

than April 15, 1969, to submit a comprehensive plan for

establishing a raciall nondiscriminatory school system in

Hillsborough County. In formulating the plan the school

board was to consider rezoning, consolidation of schools,

pairing of schools, or any other method which would

effectively eliminate the dual system.

With assurance that "the proposed Plan submitted

herewith promises prompt and meaningful progress toward

establishing a racially non-discriminatory school system,

the school board filed its new plan on April 15, 1969.

'S Id. at p.1.

25b

Opinion and Order - May 11, 1971

According to the school board, the Florida School

Desegregation Consulting Center at the University of Miami,

Coral Gables, Florida, had participated in the preparation of

the plan.

Basically, the April 15, 1969 plan wax a slight

revision of the plan put into effect by the order of May 15,

1967. It was not the school board's intention to substantially

alter the plan already in operation.

The present attendance areas have

brought about desegregation of schools in |

many neighborhoods. Any further revision of

the unified attendance areas would not increase

desegregation with a few exceptions that will

be discussed [later].* * *

The shifts in population in some

formerly predominately white neighborhoods

have caused these communities to be

predominately Negro. The Negro pupil

population in the schools serving these

communities has also’ increased

proportionately. To increase the attendance

area of any predominately Negro school or

predominately white school to bring about

more desegregation would cause students so

assigned, both Negro and white [,] to travel

unreasonable distances. Some schools will

always be all Negro and some all white

because the communities they serve are all of

one race due to voluntary housing patterns.

26b

Opinion and Order - May 11, 1971

It then becomes necessary to unify the

attendance areas of these schools to provide

these students with the opportunity to attend a

school where their race is in the minority. '®

The system whereunder black schools were placed in

attendance areas also containing white schools with students

in these areas to choose which school to attend was continued.

However, some of these attendance areas were unified.

Boundary changes for the attendance areas of other schools

were also made, "but the changes will not necessarily affect

the racial composition of the schools.”'’ In all other respects

the plan of May 15, 1967, would be continued.

Plaintiffs objected to the plan. They complained that

the plan was simply another free choice system with little

prospect of successfully accomplishing desegregation:

An analysis of this type of zoning reveals a

blatant scheme for racial discrimination.

Where Negro students are not involved, the

defendants have one school attendance area.

Where Negroes are involved, there are two or

three schools involved, giving a white child'®

the option to continue to attend the white

school.

'© Id. at pp. 16-17

7 Id. at p. 18.

‘8 Plaintiffs’ Objections to Defendants’ Proposed Plan,

filed May 5, 1969, p. 4.

27b

Opinion and Order - May 11, 1971

Concluding that its plan was “inadequate, at the

present time," Judge Lieb ordered the school board to

"formulate and adopt a revised comprehensive plan

specifically considering the use of zoning, pairing “* * *'°

The plan was filed May 23, 1969. The attendance

zones of seven elementary schools were to be revised.” Ten

elementary schools were to be paired; that is, these schools

were placed in five attendance zones with two schools in each

zone.*' Students would attend one of the two schools in their

zone and would not have a choice of which school to attend

because neither of the schools would have the same grades.

The boundaries of six junior high schools would be altered.”

Three of the senior high schools--Blake, Middleton, and

Hillsborough, which under the May 15, 1967, order shared

one attendance area--were to be given revised and separate

attendance areas. In all other respects the plan of April 15,

1969, wculd be adhered to, and the provisions of that plan

were inccrporated by reference into the present plan.

On June 2, 1969, plaintiffs filed objections tc the new

plan. On July 18, 1969, the school board filed a motion fcr

'? Order of May 9, 1969, pp. 1, 2.

0 Roland Park, Macfarlane, Williams, Burney, Lincoln,

Jackson Heights, Progress Village.

71 Dunbar was to be paired with Cuesta; Lee with

Henderson; Edison with College Hill; Orange Grove wiih Ybor;

and Springhead with Glover.

2 Just, West Tampa, Booker T. Washington, Young,

Memorial, George Washington.

28b

Opinion and Order - May 11, 1971

leave to amend the May 23, 1969, plan; this motion was

denied the same date. On July 25, 1969, for the third time that

year, the school board was ordered by Judge Lieb to submit

satisfactory plans for desegregation.

The August 1, 1969, plan established attendance zones

for each of the public schools in Hillsborough County. Each

school had a separate attendance area except the Macfarlane-

Cuesta Schocl. The majority to minority transfer policy was

continued. Any junior or senior high school student needing

a course of study not offered by the school serving his

attendance zone would be permitted to transfer to any school

in the county offering that course of study. There were similar

transfer provisions for exceptional and handicapped children.

In certain cases transfers outside attendance areas were

permissible for elementary school children.

Under the plan there were to be 783 blacks, 90 whites

at Blake Senior High School, and 993 blacks, 137 whites at

Middleton High School. There was to be a student population

of 662 blacks, 36 whites at Just Junior High School; 609

blacks, 0 whites at Booker T. Washington Junior High

School; and 1,000 blacks, 90 whites at Young Junior High

School. Marshall High School in Plant City was to be paired

with Tomlin Junior High School. Marshall would have the

seventh and Tomlin the eighth and ninth grades.

Seven elementary schools--Carver, Dunbar,

Henderson, Meacham, Potter, Roland Park, Shore--were to

remain completely black, and 5 more were to be at least 90%

black: College Hill, Lincoln, Lomax, Williams, Ybor. There

29b

Opinion and Order - May 11, 1971

were to be large concentrations of blacks at Glover, Jackson

Heights, Progress Village, and Simmons.”

Plaintiffs objected to the plan and asserted that

alternatives existed whereby greater desegregation could be

achieved.~*

On August 18, 1969, Judge Lieb entered a Final Order

approving the August 1, 1969, plan with minor qualifications.

Mannings v. Board of Public Instruction of Hillsborough

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

In September 1969 plaintiffs appealed. On November

19, 1969, Judge Lieb assigned the case to the undersigned, the

fourth judge to preside over these proceedings.

On March 6, 1970, the Court of Appeals temporarily

remanded the case for limfted purposes. This Court was

directed to supplement its findings of fact by (a) filing maps

showing the location of each school and the area served by

each school so as to reflect student assignments as of October

24, 1969, and (b) filing a table showing the school population,

by race, which would result if a neighborhood school

attendance policy as defined in Ellis v. Board of Public

23 These statistics are taken from the maps filed by

defendants to accompany the August 1, 1969, plan.

** Plaintiffs’ Objections, filed August 11, 1969.

30b

Opinion and Order - May 11, 1971

Instruction of Orange County, 423 F.2d 203 (5 Cir.1970),

were adopted.»

On March 31, 1970, the undersigned filed and

forwarded to the Court of appeals the maps and table

requested, together with 17 pages of supplemental findings of

fact. These findings established that as of October 24, 1969,

91 of Hillsborough County's 124 public schools were

identifiable as either black or white. Whites were to be found

- in 10 white schools containing 61,478, or 74%, of all the

white students in the county. The blacks were concentrated in

21 schools containing 12,751, or 65%, of the county's black

students. In particular, these findings demonstrated:

(1) Fifty-two elementary schools with

36,214, or 82%, of the white elementary

Students were white schools. Sixteen

elementary schools.with 8,530, or 74%, of the

black elementary students were black schools.

(2) Eleven junior high schools withal3,515,

or 68 %, of the white junior high students were

white schools. Three junior high schools (Just,

Booker T. Washington, Young) with 2,334, or

48% of the black junior high school students

were black schools.

(3) Seven senior high schools with 11,749,

or 61 %, of the white high school students were

white schools. Two senior high schools (Blake

* For a discussion of the Ellis case, see below, pp. 26-28.

31b

Opinion and Order - May 11, 1971

and Middleton) with 1, 887, or 58% of the

black high school students were black

schools.”°

The supplemental findings also demonstrated that a

_ neighborhood school attendance system would do little to

eliminate the dual system. As the undersigned phrased it:

"The extent of desegregation achieved by the neighborhood

attendance plan is in effect indistinguishable from that

achieved under the plan presently in effect?’. Although it did

file the table giving the projected school population resulting

from neighborhcod attendance zones, the school board did not

file maps showing these attendance areas, and so the Court's

reliance on the figures given in the tables was based entirely

upon representations made by the schcol board. At least with

regard to attendance at Blake and Middleton Senior High

Schools, these representations turned out to be highly

inaccurate.

Ill

On May 11, 1970, the Court of Appeals reversed the

order which had been entered by Judge Lieb. Mannings v.

Board of Public Instruction of Hillsborough County, 424 F.2d

874 (5 Cir.19701 (Mannings III). A panel consisting of

Judges Bell, Ainsworth and Godbold found "the Hillsborough

system deficient in student assignment throughout the

system." 427 F.2d at 876.

6 Supplemental Findings of Fact, filed March 31, 1970.

7 Id at p. 15.

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Opinion and Order - May 11, 1971

As to student assignment the Court of Appeals, based

on the supplemental findings of fact, found “that with the

exception of the two all Negro high schools, there would be

no substantial change in the racial composition of the schools

in Hillsborough County under an Orange County type

assignment system. For the reasons which follow, we

conclude that the present assignment system is unacceptable

as to certain schools.” 427 F.2d at 876-877.

On the basis of the projections furnished by the school

board in its table attached, to the supplemental findings, the

appellate court found that a strict neighborhood assignment

system would desegregate the two remaining black high

schools. The school board's figures showed that under such a

system there would be 877 blacks, 197 whites at Blake, and

1010 blacks, 250 whites at Middleton. In the alternative, the

Court was authorized to pair Blake with Plant and Middleton

with Hillsborough. The Court of Appeals directed that the

three remaining black junior high schools, Just, Booker T.

Washington, and Young be paired with Wilson or West

Tampa, Franklin or Memorial, and Sligh, Memorial, or

Franklin, respectively. N eighborhood attendance zones for the

black junior high schools were rejected because according to

the school board's table the resulting school population would

have been:

Black Students White Students

Just 592 36

Booker T. Washington 624 15

Young 1,118 90

33b

Opinion and Order - May 11, 1971

Turning to the elementary schools, the Court of

Appeals stated: "There are 14 elementary schools with

virtually alt Negro student bodies." 427 F.2d at 877. This was

an error; as the supplemental findings vividly showed, there

were 16 elementary schools at least 90% white.» The Court

of Appeals directed that 6 of these schools be paired-- College

Hill with Edison; Dunbar with Tampa Bay; Henderson with

Graham; Lincoln with Jackson; Meacham with Gorrie; and |

Simmons with Burney or Wilson. |

The Court of Appeals also stated that it was

"conceivable" that "substantially the same result could be

achieved in some of the elementary schools by redrawing zone

lines instead of pairing." This Court was authorized to

consider and permit rezoning as an alternative to pairing

where the result would substantially desegregate student

bodies, or to permit pairing in some instances and rezoning in

others.

The majority to minority transfer policy was left intact.

A biracial committee was-ordered set up, The appellate

opinion was to be implemented by June 6, 1970. Finally, this

Court was directed to make its own conclusion by the

standards stated in the opinion as to the system being unitary.

Once it was found unitary, this Court was to retain

jurisdiction for a reasonable period of time in order to insure

unitary operation. By rehearing granted on June 2, 1970, the

Court of Appeals approved the school board’s request:

8 The omitted schools were Jackson Heights and Progress

Village. Rounded off to two decimal points each school was exactly

90% black 10%white.

34b

Opinion and Order - May 11, 1971

to realign the attendance zones for Just,

Booker T. Washington and Young junior high

schools as an alternative to pairing Just with

Wilson or West Tampa, Booker T. Washington

with Franklin, and Young with Sligh,

Memorial or Franklin * * * This modification

is granted on the representation by appellees

[i.e., the school board] that the stated zone line

.changes will result in a student population at

Jusl of 567 Negro and 107 white students: 625

Negro and 115 white students in Booker T.

Washington; and 1,075 Negro and 159 white

students_in Young. 427 F. 2d at 878.

[Emphasis supplied].

On May 13, 1970, this Court ordered defendants to

comply with the Court of Appeals mandate. On June 6,1970,

defendants file. a Notice of Compliance, and on June i,

1970, a Detailed Report of Compliance. In the Report the

anticipated attendance figures at the two black high schools

were different from those given in the table. The attendance

boundaries of Blake had been altered and the contemplated

attendance was 650 blacks, 60 whites. At Middleton with the

Same boundaries as before but under a strict neighborhood

assignment system with no variances allowed, 1,020 blacks

and 115 whites were expected.

Rather than pairing them, as suggested by the Court of

Appeals, defendants elected to redraw attendance zone lines

for certain elementary schools. Of the 6 black elementary

schools ordered desegregated by the Court of Appeals, 1 was

35b

Opinion and Order - May 11, 1971

to be closed (Henderson), 3 were to remain all black (College

Hills, Dunbar, Meacham), and 2 were to be over 90% black

(Lincoln, Simmons).

On June 19, 1970, this Court ordered defendants to

file (a) a pian for pairing Blake with Plant Senior High School

and Middleton with Hillsborough Senior High School, (b) a

plan for pairing the 6 black elementary schools, and (c) any

other plan for modifying atlendance zones at the high school

and elementary level. In response the school board filed

figures making it obvious that more desegregation would be

accomplished at the high school and elementary level by

pairing than by rezoning.” |

Plaintiffs’ Proposed Plan of Desegregation was filed

July 15, 1970. It used a feeder system as the means for

estaklishing attendance at junior and senior high schools, and

aimed at desegregating every school in Hillsborough County.

Following a hearing on July 22, 1970, at which

testimony was heard and evidence received, the Court entered

an order stated in part:

As directed by the court defendant

School Board filed a plan of pairing elementary

schools amd filed population figures by race of

the aforesaid schools both in its proposed

rezoning plan and under a pairing plan. Such

comparative figures and other evidence

received at hearing clearly establishes and the

9 Defendants’ Information Relating to Pairing Certain

Schools and Modifying Attendance Zones, filed July 10, 1970.

36b

Opinion and Order - May 11, 1971

court finds that the rezoning plan for

elementary schools as proposed by the School

Board does not substantially accomplish the

same amount of desegregation as would the

pairing plan proposed by the School Board at

the Court's direction.” .

Noting that a further rezoning plan or a plan whereby

several elementary schools were grouped might accomplish

the desired resul.ts, the Court gave the.school board until

August 21, 1970, to file a revised rezoning plan for

elementary schools.

Defendants’ second rezoning plan was filed August 11,

1970, At the close of a hearing conducted on August 13,

1970, the Court ruled from the bench and found that of the

three plans submitted by the school board the pairing plan was

the most effective and would be approved. The Court required

the school board to file additional information relating to

recommendations as to the specific grade locations at the

paired schools and further details relating to transfer rules and

the biracial committee by August 19, 1970.

On August 19, 1970, defendants presented the Court

with three separate supplemental plans for the elementary

schools concerned, one of which involved the closing of a

sckool and distribution of its pupils to three other schools, and

each of which had two or more alternative plans attached

thereto.

*° Order of August 3, 1970, p. 2.

37b

Opinion and Order - May 11, 1971

On August 21, 1970, the Court entered an Interim

Order approving various of the plans filed two days before.

Henderson was to be closed and its students distributed among

Grakan, Lee and Meacham Elementary Schools. The

following schools were paired: Carver and Gorrie; College

Hill and Edison; Dunbar and Tampa Bay Boulevard;

Simmons and Burney; Lincoln and Jackson. The Interim

Order also set out the Transfer Rules governing attendance

outside assigned schools.

The Interim Order was confirmed and supplemented by

a Memorandum and Order entered August 25, 1970.

On August 28, 1970, the school board requested that

a change be made in the bodndaries for Blake High School.

Preliminary registration of students there indicated that the .

school would be greatly under capacity when it opened on

August 31, 1970. The school board therefore asked the Court

zone approximately 290 additional students

into Blake High School who are presently

residing in the Plant High School district. The

race of the students in the proposed change

involved is predominantly black, but the exact

percentage is not known at the present time.°!

Following a hearing the Court denied the request without

prejudice to its resubmission when more definite fact about

enrollment at Blake were known.

>! Defendants' Request for Boundary Change at Blake

High School, filed August 28, 1970, p. 2.

38b

Opinion and Order - May 11, 1971

Thereafter defendants again requested a boundary

change for Blake. On September 10, 1970, they stated,

Student population at Blake was 428, far below Capacity. It

was requested that the Court:

consider a change in the attendance

boundaries for Blake High School which will

zone into Blake High School approximately

241 additional students who are presently

residing in the Plant High Sckool attendance

area. The race of the students in the proposed

change of boundaries is predominantly black.”

The second request was denied. Defendants’

Suggestion that Blake be repopulated by being further

resegregated was rejected for several reasons. At hearing on

the second request it had keen shown that of the 428 students

in attendance at Blake, 426 were black and 2 were white. It

had also been shown that all of the students to be zoned into

Blake were black. The proposed boundary change would have

qiven Blake the same attendance zone it had at the time this

Case was reversed in May 1970 with the exception of an

additional attendance area, containing no whites.

The Court also noted that in the table submitted to the

Court during the limited remand in March 1970 the school

beard had projected an enrollment of 877 blacks, 197 whites

at Blake under a neighborhood system; that the Court of

* Defendants’ Second Request for Boundary Change at

Blake High School, filed September 11, 1970, p. 2.

*3 Memorandum and Order, filed September 24, 1970.

39b

Opinion and Order - May 11, 1971

Appeals had relied on this representation in directing

implementation of such a plan at Blake; that in June 1970 the

school board had revised its figures and predicted 650 blacks

and 60 whites at Blake; and that at present there were 426

blacks and 2 whites there.

SUPERVENING FACTS AND LAW

On November 12, 1970, defendants filed a Report

giving the racial composition of certain schools as of October

23, 1970. Analyzed in light of data previously furnished the

Court, the Report demonstrates the ineffectiveness of the

August 1970 desegregation decrees.

Chart One™ traces for four school years the student

population by race at 21 schools which were black in

September 1967. It shows that these schools have remained

identifiably biack despite Judge Lieb's order of August 1,

1969, despite the Court of Appeals’ reversal on May 11,

1970, and despite the undersigned's orders of August 1970.

Both of the high schools remain black. Three of the four

junior high schools are black.* Ten of the 16 elementary

** See below, pp. i-iv. All of the charts attached to this

order are by reference made a part hereof.

*° Marshall was desegregated under the plan approved

August 1, 1969, when it was paired with Tomlin. The school board

did not furnish the Court with figures for attendance at Marshall

during the 1970-1971 school year.

40b

Opinion and Order - May 11, 1971

schools are still black.*° One has been closed. The remaining

5 are over 50% black.

Chart Two”’ compares the 1969-1970 school year enrollment

at 10 black schools directed desegregated in August 1970 with

these schools’ projected and actual enrollment for the 1970-

1971 school year. The figures therein show that both high

schools and all three junior high schools are still black. The

5 elementary schools are over 50% black.

The figures also demonstrate that tie school board's

representations to this Court and the Court of Appeals were

markedly inaccurate. At the high school and junior high

school level, there is simply no significant correlation between

the enrollment projected by the school board if its plan were

adopted and actual enrollment at present. At the elementary

school level the percentage of black students at each school is

higher than was represented to this Court.

In Chart Three* the school board's estimates of school

attendance by race at the 5 elementary schools paired with

black schools for the 1970-1971 school year .are seen to be

highly erroneous. The school board predicted that 3 of the

attendance figures are for 8 of the black elementary schools:

Glover, Jackson Heights, Lomax, Potter, Progress Village, Roland

Park, Shore, Williams. Since they were not ordered desegregated,

there can be little doubt that these schools are still black.

*” See below, pp. v-vi.

*® See below, p. vii.

4lb

SUR en wer NINES os ueRrurmoerenedl

Opinion and Order - May 11, 1971

schools would have more white students than black, but it

turned out that 4 were black.

In Pate v. Dade County School Board, 434 F.2d 1151

(S Cir.1970), the Court of Appeals disapproved a

desegregation plan for Miami, Florida, under which 22

schools with 44% of the black student population were all

black or virtually all black. The Court of Appeals stated that

"obstacles" such as “traffic hazards, school capacities,

individual school programs, format and curricula, walking

distances, natural barriers, and grade levels in each school,"

434 F.2d at 1154, could not justify a plan resulting in

insubstantial desegregation. Using the techniques cf pairing

and grouping the Court of Appeals reduced the number of

blacks attending black schools from 44% to 24%.

In Brown v. Board of Education of City of Bessemer,

432 F.2d (5 Cir.1970), it was stated:

The restructuring of the grade system in

the proposed pairing is not, by itself, such an

indicium of educational unsoundness as to

render an otherwise feasible alternative

unacceptable. * * * No_ particular grade

structure can be considered inviolate when

constitutional rights hang in the balance. 432

F.2d at 23. [Emphasis supplied. }

The Court of Appeals proceeded to desegregate by

pairing. The Court also updated the majority to minority

42b

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Opinion and Order - May 11, 1971

transfer provision “so as to provide priority for space to

transferees.” 432 F.2d at 24.

In Allen v. Board of Public Instruction of Broward

County, 432 F.2d 362 (5 Cir.1970), the Court of Appeals

observed:

In the conversion from dual school

systems based on race to unitary school |

systems, the continued existence of all black or

virtually all black schools is unacceptable

where reasonable alternatives exist. And it is

clear that one acceptable way to achieve

reasonable alternatives is by pairing schools.

The tenor of our decisions is unmistakable:

where all black or virtually all black schools

remain under a zoning plan, but it is

practicable to desegregate some or all of the

black schools by using the tool of pairing, the

_ tool must be used. 432 F.2d at 367.

- The Court of Appeals directed the pairing and

Clustering of 13 black elementary schools, thereby

desegregating every one of these schools. The Court then

Said:

In ordering the pairings and groupings

described above we have not suggested which

specific grades should be assigned to which

specific schools. Those decisions are left to the

district court. * * * However, in deciding

which grades will attend which schools, the

district court is ordered to comply with the

43b

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Opinion and Order - May 11, 1971

following requirements: (1) In every

attendance zone created by the pairing and

clustering the court must make _ every

reasonable effort to avoid "splitting" a grade,

i.e., assigning any particular grads to more

than one schocl. (2) If in some instances it does

become necessary to split a grade, the court

will assign the students in that grade in such a

manner that the degree of desegregation

ordered by this court for that attendance zone

will not be diminished. 432 F.2d at 369.

In Singleton v. Jackson Municipal Separate School

District, 432 F2d. 927 a plan was found unacceptable under

which "approximately 70% of the Negro elementary students

will bs in all (or substantially all) Negro elementary schools."

432 F.2d at 928. In a Supplemental Order the Court of

Appeals directed the district court's attention to

our recent cases in which this court has

mandated pairings, clustering, or such other

equally effective devices to reduce the number

of all black schools (90% or more black) and

the percentage and number of blacks in all

black schools. 432 F.2d at 931.

In Youngblood v. Board of Public Instruction of Bay

County, 430 F.2d 625, 629 (5 Cir.1970), the Court of

Appeals noted: "This Court requires school boards to draw

zone lines sc as to affirmatively promote desegregation of

racially dual school systems.”

44b

SASL Se a

Opinion and Order - May 11, 1971

Ia a series of opinions the Court of Appeals clarified

the attendance system set forth in Ellis v. Board of Public

Instruction of Orange County, 423 F.2d 203 (5 Cir. 1970). In

Ellis the panel held that under the specific facts of the case

Orange County, Florida, could desegregate by using a

neighborhood school attendance system wherein variances

were not allowed to permit children a choice of not attending

the.nearest schools to their residences and thereby avoiding

assignment to a formerly black or formerly white school.

The Court of Appeals noted that a neighborhood

school assignment system--that is, a System under which a

Student must attend the school nearest his home--could be of

two types. It might take the form of equidistant assignment.

"[Z]one lines would be located equidistant between two-

schools and all students within the zone would attend a given

school without regard to the capacity of the school." 423 F.2d

at 207. Or a student might attend the school nearest his home

limited only by the Capacity of the school; if the school was

unable to accommodate him he would attend the next nearest

school to his residence. The Court of Appeals adopted the

latter plan for Orange County.

It was also held that the neighborhood schoo!

assignment system, based on school Capacity, must be

observed without exception. Variations based on traffic

Conditions or zone lines were impermissible.

Variances by arbitrary zone lines, or

for reasons of traffic, while reasonable on their

face, may destroy the integrity and the stability

of the entire assignment plan. If Orange

County wishes to maintain a neighborhood

45b

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Opinion and Order - May 11, 1971

assignment system, then it must do so without

variances. Each student in the system must be

assigned to attend the school nearest his or her

home, limited only by the capacity of the

school, and then to the next nearest school.

423 F.2d at 208.

An Ellis-type plan was rejected in Henry v. Clarksdale

Municipal Separate School District, 433 F.2d 387 (5

Cir.1970), where the plan

proposed to leave unchanged the totally

(or nearly so) segregated elementary school

program under the zoning system already

disapproved by [previous decisions in the

case], but now sought to be restored to

acceptability and brought forward under the

Ellis neighborhood school or geographical

proximity or "equal distance zoning" label. No

change with respect to the elementary schools

of Clarksdale would occur except the

nomenclature employed. The racial makeup of

pupils attending the several elementary schools

would continue exactly as before. 433 F.2d at

390.

Pairing was ordered to desegregate, and objections thereto

raised by the school board were dealt with in these words:

The objections as to children being

required to walk as much as two miles as

opposed to an average of 0.5 miles heretofore,

and of having to travel natural or man-made

46b

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Opinion and Order - May 11, 1971

barriers and the claim that a 2-2-2 grade

division is somehow less desirable than a 1-6

division, all fail. * * * Barriers which did not

prevent enforced seqregation will not be held

{oO prevent conversion to a full unitary system.

433 F.2d at 394. [Emphasis supplied].

Objections based on lack of "articulation" caused by the

breakup of grade composition between two or more schools

under zoning or clustering were also overruled.

In Valley v. Rapides Parish Schoo] Board, 434 F.2d

144 (5 Cir.1970), the Court of Appeals again rejected an

Ellis-type plan on the ground that such a plan did not

substantially abolish segregation. Pairing, rezoning, and

clustering were ordered. The majority to minority transfer

Provision was modified to require that transferees be given

priority for space.

In Ross v. Eckels, 434 F.2d 1140 (5 Cir.1970), all

parties agreed.that a desegregation plan which had left 77% of

Houston's black students in black schools in December 1969

was defective. The district court thereupon ordered an

equidistant zoning plan intu effect.

The Court of Appeals modified the district court's

plan. A geographical Capacity attendance plan was adopted for

the secondary schools. At the elementary level the equidistant

zoning plan was modified in part so that by the technique of

pairing the number of blacks in black schools was reduced

from 21,418 to 11,982.

47b

Opinion and Order - May 11, 1971

The majority to minority transfer plan was altered so

that (a) all transferring students were given transportation, and

(b) transferees were given priority for space at any school

within the system.”

A. final Court of Appeals decision of interest is Bradley

v. Board of Public Instruction of Pinellas County, 431 F.2d

1377 (5 Cir.1970). Bradley involved a school system in

close proximity to the Hillsborough system and of great

similarity. Under the plan in effect 64% of the black students

attended all black or virtually all black schools. The Court of

Appeals versed, and, by use of pairing, grouping, and

*? Other cases dealing with the Ellis-type assignment plan

(but decided prior to August 1970) are Lee v. Macon County Board

of Education, 429 F.2d 1218 (5 Cir. 1970); Hightower v. West, 430

F.2d 430 F.2d 552 (5 Cir.1970): and Andrews v. City of Monroe,

425 F.2d 1017 (5.Cir.1970).

In Andrews a purported Ellis-type plan was rejected

because it resulted in 85% of the black elementary school students

and 77% of the black high school students being assigned to

traditionally black schools which would remain black. The panel

Said:

However, we do not reject the School Board's plan

solely on the ground that it does not fit the Orange

County definition of a ‘neighborhood’ system.

Even if, as presently constituted, the plan were a

true neighborhood plan, we would reject it because

it fails to establish a unitary system. Orange

County does not say what a "neighborhood"

system of student assignment per se is a unitary

system. 425 F.2d at 97 [Emphasis supplied].

of its obvious applicability to the instant case it is discussed here.

48b

2S TESA LO STS EE I SC RE

Opinion and Order - May 11, 1971

rezoning, reduced the percentage of blacks attending black

schools from 64% to 14.2%.

Further proceedings in the Bradley case were held at

the district level when the school board failed to desegregate

the only remaining black high school, Gibbs High School. On

March 15, 1971, the school board filed its plan for

desegregating the school. The plan called for the dispersion of

all Gibbs students among Gibbs and 5 other high schools, with

the result that each of these 6 facilities would have student

bodies approximately 83% white and 17% black. A map

attached to the proposed plan showed that the desegregation

was accomplished by gerrymandered zoning and the use of

satellite zones.*!

On April 15, 1971, the district court approved the

school board's plan under this condition proposed by the

school board. "that the percentage of black students in any St.

Petersburg high school, to wit, Boca Ciega, Lakewood, St.

Petersburg, Northeast, Dixie Hollin and Gibbs, shall not

exceed twenty-two percent (22%) nor be less than twelve

percent (12%) and that it is further recognized that the area

zone lines for the respective high schools will have to be

adjusted from time to time in order to meet the respective

required ratio between black and white students.

*' A satellite zone is an area which is not contiguous with

the main attendance zone surrounding a school.

. Bradley v. Board of Public Instruction of Pinellas

County, No. 64-98 Civ. T., Order of April 15, 1971, p. 3.

49b

Opinion and Order - May 11, 1971

Ill

On April 20, 1971, the Supreme Court delivered five

opinions which defined with particularity the responsibilities

of school authorities and the scope of powers of federal courts

in eliminating racially separate public schools established and

maintained by state action. Four of these decisions will be

discussed here.

In Swann_v. Charlotte-Mecklenburg Board of

Education, U.S.__—, 39 U.S.L.W. 4437 (1971), the

district court had dealt with a school system conceitedly not

unitary in t969 and with a school board which refused to

submit a satisfactory desegregation plan. The district court

found that certain of the board's actions were discriminatory;

that residential patterns resulted in part from federal, state,

and local governmental action; and that the board's actions

based on these patterns resulted in segregated education.

The desegregation plan adopted by the district court

and affirmed by the Supreme Court proposed assignment of

blacks to all ten of the system's high schools. Attendance

zones for the high schools were shaped like wedges of a pie,

extending outward from the center of the city. The junior high

schools were rezoned, and nine "satellite zones" were created.

Under the satellite plan, inner city blacks were assigned to 9

outlying predominately white junior high schools. The 76

elementary schools were desegregated by use of zoning,

pairing, and grouping; 9 inner city black schools were

grouped with 24 white suburban schools. The district court

explained the latter aspects of the plan in these words:

50b

siieeheaerainiciiieiit ai

Opinion and Order - May 11, 1971

It * * * desegregates all of the rest of

the elementary schools by the technique of

grouping two or three outlying schools with

one inner city school: by transporting black

students from grades one through four to the

outlying white schools: and by transporting

white students from the fifth and sixth grades

from the outlying white schools to the inner

city black school. Quoted at U.S. at

—.» 39 U.S.L.W. at 4440

The Supreme Court determined that the so-called anti-

busing provisions of the Civil Rights Act of 1964, see 42

U.S.C. §§ 2000c (b), 2000c-6, do not limit the powers of

federal courts to use busing as a mode of accomplishing

desegregation. The Court also delineated "the responsibility

of local authorities and district courts to see to it that future

school construction and abandonment is not used and does not

serve to perpetuate or re-establish the dual System."

U.S. at___, 39 U.S.L.W. at 4443.

The location of schools may thus influence

the patterns of residential development of a

metropolitan area and have important impact

on composition of inner city neighborhoods.

In the past, choices in this respect have been

used as a potent weapon for creating or

maintaining a State-segregated school

Ssystem.* * * This was sometimes accompanied

by building new schools in the areas of white

Suburban expansion farthest from Negro

population centers in order to maintain the

S1b

_ ee

Opinion and Order - May 11, 1971

separation of the races with a minimum

departure from the formal principles of

"neighborhood zoning." Such a policy does

more than simply influence the short-run

composition of the student body of a new

school. It may well promote segregated

residential patterns, which when combined

with "neighborhood zoning," further lock the

school system into a mod of separation of the

races. Upon a proper showing a district court

may consider this in fashioning a remedy. __

_USS. at , 39 U.S.L.W. at 4443.

Although there is no constitutional right to a particular

degree of racial balance, racial quotas have a place, in the task

of desegregation. The district court used a 71% white-29%

black ratio in each school as a starting point in-the process of

shaping a remedy. This was held to be proper because (a) the

school authorities had maintained a dual system until at least

1969, and (b) the school board had totally defaulted in its duty

to come forward with an acceptable plan of its own.

It was the Supreme Court's 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." _

__ US. at , 39 U.S.L.W. at 4445.

Where the school authority's proposed plan for

conversion from a dual to a unitary system

contemplates the continued existence of some

schools that are all or predominately of one

52b

Opinion and Order - May 11, 1971

race, they have the burden of showing that

such school assignments are genuinely non-

discriminatory. U.S. at , 39

U.S.L.W. at 4445,

Majority to minority transfer arrangements "must

grant the transferring student free transportation and space

must be made available in the school to which he desires to

move."___—_—sdU.S.. att —__, 39 U.S.L.W. at 4445.

The Supreme Court recognized that the remedial

altering of attendance zones--including pairing, Clustering,

grouping, drastic gerrymandering of attendance zones--may be

required to effectuate a unitary system.

All things being equal, with no history of

discrimination, it might well be desirable to

assign pupils to schools nearest their homes.

But all things are not equal in a system that has

been deliberately constructed and maintained to

enforce racial Segregation. The 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. * * *

Desegregation plans cannot be limited to the

walk-in school. U.S. at , 39

U.S.L.W. at 4445, 4446,

53b

Opinion and Order - May 11, 1971

The district court's "conclusion that assignment of

children to the school nearest their home serving their grade

would not produce an effective dismantling of the dual

system" was found by the Supreme Court to be "supported by

the record." U.S. at , 39 U.S.L.W. at

4446.

In Davis v. Board of School Commissioners of Mobile

County, U.S. , 39 U.S.L.W. 447 (1971), the

Supreme Court reviewed a decision of the Court of Appeals

for the Fifth Circuit.

The metropolitan area of Mobile County, Alabama, is

divided by a major highway. About 94% of the black students

in the metropolitan area live on the east side of the highway

between it and the Mobile River. The Court of Appeals

treated each side of the highway as distinct, without either

interlocking zones or transportation across the highway.

The Court of Appeals approved a plan under which

50% of the black elementary students in the metropolitan area

were to attend 6 black schools. All 7 secondary schools

formerly black were to be desegregated. Enrollment figures

for the 1970-1971 school year made available to the Supreme

Court showed that the projections on which the Court of

Appeals had relied were inaccurate.“ Under the Court of

‘> That the enrollment figures relied upon by the Court cf

Appeals turned out to be wrong is not the only similarity of the

Davis case to the instant one. The panel in Davis consisted cf

Judges Bell, Ainsworth, and Godbold, who also presided over

Mannings III and Ellis. In Davis Judge Bell wrote of the similarities

between that case and the present one. See Davis v. Board of

School Commissioners of Mobile County, 430 F.2d 883, 886-887

54b

Opinion and Order - May 11, 1971

Appeals plan as actually implemented, 64% of the black

elementary students in the metropolitan area were

concentrated in 9 black school: and over 50%, instead of

none, of the black secondary students were attending black

schools. The Supreme Court commented:

As we have held, "neighborhood school

zoning,. whether based strictly on home-to-

school distance or on "unified geographic

zones" is not the only constitutionally

permissible remedy: nor is it per se adequate to

meet the remedial responsibilities of local

boards. 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. A

district court may and should consider the use

of all available techniques including

restructuring of attendance zones and both

contiguous and noncontiguous attendance

zones. The measure of any desegregation plan

is its effectiveness.

On the record before us, it is clear that the

Court of Appeals felt constrained to treat the

eastern part of Metropolitan Mobile in

isolation from the rest of the school system,

and that inadequate consideration was given to

the possible use of bus transportation and split

(5 Cir. 1970).

55b

aa ee reerareenarenmeeneant

Opinion and Order - May 11, 1971

zoning. U.S. at 9 USL.

at 4448 (1971)

The Court of Appeals was therefore reversed.

In North Carolina State Board of Education v. Swarm,

___ U.S. __, 39 U.S.L.W. 4449 (1971), North Carolina's

Anti-busing Law which prohibited assignment of students for

the purpose of achieving a racial balance and busing of

students for this purpose was held unconstitutional.

* * *the Constitution does not compel any

particular degree of racial balance or

m/mixing, but when past and continuing

constitutional violations are found, some ratios

are likely to be useful starting points in shaping

a remedy.

- * * *bus transportation has long been an

integral part of all public educational systems,

and it is unlikely that a truly effective remedy

could be devised without continued reliance

upon it. —__—-US. at , 39 U.S.L.W. at

4449 4450.

McDaniel v. Barresi U.S. , 39 U.S.L.W.

4450 (1971), involved an attempt by parents to enjoin the

Clarke County, Georgia Board of Education's voluntary

desegregation plan. Under the plan geographic zones were

drawn to achieve a greater racial balance. The students in 5

heavily black pockets either walked or were transported by

bus to schools located in white attendance zones. The

Supreme Court reversed the Supreme Court of Georgia and

56b

Opinion and Order - May 11, 1971

held that neither the equal protection clause of the 14th

Amendment nor the Civil Rights Act of 1964 prohibited the

board from implementing such a plan.

STATUS OF THE CASE

In addition to those heretofore made in this order, the

Court makes the following specific findings of fact:

The Hillsborough System is a Segregated System

The Supplemental Findings of Fact, filed March 31,

1970, are authority for the Proposition that the defendants'

school system is a racially segregated one. 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.

There has been little improvement during the 1970-

1971 year. Figures filed by the school board indicate that as

of October 23, 1970, 9,106, or 46%,of the system's blacks

were attending 15 black schools.“ Although they comprised

only 19% of the student population, 13,606, or 69%, were in

“ The 15 schools are: Glover, Jackson Heights, Lomax,

Meacham, Potter, Progress Village, Roland Park, Shore, Williams,

Abou, Just, Booker T. Washington, Young, Blake, Middleton. The

Court of Appeals expected only 21% of the system’s blacks to be

in black schools during this school year. Mannings III, 427 F.2d at

878.

57b

Opinion and Order - May 11, 1971

28 schools at least 50% black.** On the ether hand, 69% of

the white students--57 ,869 out of 83,474-attended 65 schools

either all white or at least 95% waite.*°

This Segregation Results from State Action

The racially separate system in Hillsborough County

is a consequence of deliberate policy long pursued on

defendants’ part of separating students solely on account of

race.

The State of Florida had constitutional and statutory

provisions requiring school segregation on the books until

very recently. See, e.g., Art. 12 § 12, Fla. Const. 1885;

Section 228.09, Florida Statutes repealed by Chapter 65-239

§ 4, Laws of Florida 1965.

Almost ten years ago this Court found as a matter of

fact that prior to and after May 17, 1954, defendants operated,

maintained and staffed a completely dual school structure. The

> The 28 schools include, in addition to the 15 mentioned

in the previous footnote, Bryan, Burney, Carver, College Hill,

Dunbar, Edison (Gorrie, Jackson, Lee, Lincoln, Orange Grove,

Simmons, Tampa Bay Blvd.)

Hillsborough County schools may be found in Defendants’ Reports,

filed December 23, 1969, and November 12, 1970, and in the

Supplemental Findings of Fact, filed March 31, 1970. In making

its computations the Court has used the December 23, 1969,

Report's figures as to the total enrollment by race in Hillsborough

County. The Court has also assumed that enrollment at schools not

included in the Nov. 12, 1970, Report is the same as it was during

the 1969-1970 school year.

58b

Opinion and Order - May 11, 197]

School board made no attempt whatever to dismantle the

system until September 1961. In the intervening ten years the

defendant have at no time taken any steps which have had the

effect of significantly altering the system's racially biased

Student assignment system.

In October 1956 the State Department of Education

Publish a "School Plant Survey of Hillsborough County

Schools 1956." This document filed in evidence on December

5, 1 961, contains an index which lists all of the system's

schools as of 1956 under the heading of either "White" or

"Negro." Among the schools marked "Negro are Blake,

Carver, College Hill, Dunbar, Glover (then having grade 1-

9), Lomax, Meacham, Middleton, Simmons, and Booker T.

Washington. Of these 10 schools, all at present are 50%

black and 6 are at least 90% black.

Of the 79 schools listed as white, 38 are today all

white or at least 95% white. Seven of the 79 are now at least

50% black-Burney, Edison, Lee, Orange Grove, Shore,

Tampa Bay Boulevard, Ybro.

The Survey also describes future school construction;

the new schools are categorized as "White" or "Negro."

The School Board published a "Personnel Directory

1958-1959" in early 1959. It was filed in evidence on

December 4, 196]. Again the schools are Classified as

"White" and " Negro." And again, with a few exceptions, the

schools listed as " Negro" are still black, and the schools listed

as "White" are still white.

59b

Opinion and Order - May 11, 1971

In Defendants' Voluntary Proposal to Amend and

Expedite Plan, filed February 3, 1965, Potter and Roland

Park are labeled "Predominately Negro."

In their Fourth Supplemental Progress Report, filed

October 30, 1965, defendants listed 47 elementary schools, 9

junior high schools, and 4 senior high schools as totally white.

At present 40 of these elementary schools, 6 of these junior

high schools, and 2 of these senior high schools are either all

white or at least white. Among the schools described as

attended by blacks only were Carver, College Hill, Potter,

Roland Park, Williams, Dunbar, Lomax, Meacham, Progress

Village, Blake, Middleton, Just, Booker T. Washington,

Young, Glover, Simmons, Lincoln.

Space limitations forbid a more exhaustive review of

the file directed to this point. It is sufficient to observe that of

the one-race schools in existence 5 and 10 and more years

ago, nearly all of the ones still in operation are racially

identifiable. Most of the schools that were white then are still

white, and most of the black schools remain black. There have

been changes in the racial makeup of several schools, but on

the whole these have simply been drastic inflows of blacks and

outflows of whites resulting in resegregation. Although a

minority of the formerly white schools has become black,

none of the black schools has become white. Prior Plans

Have Failed.

The record in this case, including the information in

this order and the charts appended hereto, offers patent and

undeniable proof that all of the desegregation plans heretofore

implemented in Hillsborough County have failed to abolish

the dual structure of student attendance.

60b

Opinion and Order - May 11, 1971

The first plan began in 1963, In operation from 1963

until 1967, it provided for integration at the rate of one grade

a year and contained a minority to majority transfer provision

whereby a white student could avoid attendance at a black

school even though the black school was closer to home.”

From 1967 until 1969 the System operated under an

equally ineffective variety of freedom of choice plan. During

the 19691970 school year the school board used the

attendance zone system disapproved by Mannings III in May

1970. Under the plan the enrollment figures projected by the

school board failed to materialize; the black schools which

were to have small numbers of whites had only token white

attendance or none at all.

During the 1970-197] school year the system has

functioned. under a plan approved by this Court in August

1970. Once again actual attendance by race has not conformed

to what was represented to this Court by defendants. The

black secondary schools remain black, and at the paired

elementary schools the black enrollment is much higher than

expected. Numerous other schools remain identably white or

black. The reasons why the previous plans failed are obvious.

Too much reliance was placed on free choice, transfer

Provisions other then majority to minority one have been

extremely liberal, and no attempt was made to eliminate the

black schools except by the addition of a few whites to the

black school population.

“g Minority to majority transfer policies were disapproved

in Goss v. Board of Education of Knoxville, 473 U.S. 683 (1963),

and Boston v. Rippy, 285 F.2d 43 (5 Cir. 1960).

61b .

Opinion and Order - May 11, 1971

Defendants Desegregate All Predominately Black School

The Hillsborough County School System is [sic] as a res [sic]

of defendants unlawful policies. It follows that the school

board must eliminate all vestiges of the discriminatory actions,

"root and branch." Green v. School Board of New Kent Count

[sic] 391 U.S.430, 438 (1968). This obligation remains even

assuming that the defendants in good faith have submitted

plans which through no fault of their own failed to accomplish

desegregation.

It is indisputable that in systems practicing racial

discrimination the fundamental law of the land--the

Constitution of the United States--requires the

disestablishment of schools in which there is a

disproportionately high percentage of black students. In view

of the history of this case it is the holding of the Court that

defendants must desegregate all schools in their school system

where at least half the students are black.*

There is no evidence of any substantiality in the record

supporting the position that segregation in Hillsborough

County is attributable in any measurable degree to voluntary

patterns or other factors unaffected by school board activity.

As indicated earlier, the record makes plain that prior to and

since 1954 certain schools in Hillsborough C6unty have been

set aside for black students and others for white students.

‘8 Although there is some language in Mannings II and

Mannings III which might be interpreted to indicate that some of

the segregation in Hillsborough County is de facto and not de jure,

for the reasons that follow the Court finds that all of the

predominately black schools in the county must be eliminated.

62b

Opinion and Order - May 11, 1971

With exceptions these schools remain racially identifiable.

Over the years defendants have submitted numerous plans for

desegregation, not one of which has altered the naked fact Chat

most blacks attend schools which are inordinately black

whereas most whites attend schools in which there are no

blacks or only minuscule humbers of blacks. The Court has

been unable to locate a Single instance in the record where

defendants took positive steps to end segregation at a black

School and thereafter segregation returned fortuitously.

Indeed, no serious attempt has ever been made to eliminate the

many black schools. Based on experience, the Court

concludes that what re-segregation there has been is a

consequence of the continued existence of schools identifiable

as white or black.

Since defendants have not taken affirmative Steps to

end their discriminatory student attendance policies, there has

not been an end to de jure segregation

The posture of this case has been altered by

Superseding caselaw. In Davis the Supreme Court reversed

the Court of Appeals because insufficient consideration had

been given to noncontiguous attendance zones and the use of

busing. The similarities of that case involving Mobile County

to the instant one have been noted. And in Swann vy.

Charlotte-Mecklenburg Board of Education the high court

fashioned a presumption against one-race schools in school

districts with a history of discriminatory practices. The

defendant have not met this burden of Showing that the present

school assignment System is unconnected with their past and

present discriminatory actions.

63b

Opinion and Order - May 11, 1971

Supervening facts have also affected the .status of the

case as in Davis the facts upon which the Court of Appeals

relied in instituting its plan have proved to be erroneous. The

5 secondary schools directed desegregated remain black. The

percentage of blacks at the paired elementary schools is higher

than was represented to the Court at the time pairing was

directed and the Court knows, based on its experience in this

and other school cases,*? that the percentage will increase until

the schools become all black unless remedial action is taken.

Stated differently, the record supports what the Court

has learned in presiding over school desegregation

proceedings in this area of Florida: & desegregation plan will

be unsuccessful and entails desegregation where a few whites

are added to formerly black schools which otherwise remain

intact; in short, a plan which anticipates retention of

identifiably black schools will fail. Partial desegregation

results in white flight, resort to private schools, and other

maneuverings which frustrate the course of justice. Successful

desegregation must extend throughout the school system and

be done in such a way that the tactics which impede court

orders are rendered futile.

There is an old equitable maxim that equity delights to

do justice, and not by halves. It never had greater application

than here. The Court therefore concludes that in order to

” The undersigned has presided over these desegregation

cases: Blalock v. Board of Public Instruction of Lee County, No.

64-168, Civ. T.; Harvest v. Board of Public Instruction of Manatee

County, No. 65-12 Civ. T.; Mays v. Board of Public Instruction

of Sarasota County, Nu. 4242 Civ. T.

64b

Opinion and Order - May 11, 1971

desegregate the H illsborough County School System all of the

identifiably black schools must lose that identity .°

The applicable legal principles merit reiteration.

Desegregation is an Affirmative Duty of a School Board

Initially it is the duty, not of the Court, not of the

plaintiffs, but of the school board acting affirmatively and

Positively to end segregation in Hillsborough County. The

duty is not fulfilled submission of plans which fail to work.

Hall v. St. Helena Parish Sch Board, 417 F.2d 801 (5

Cir.1969); United States v. Board of Education of Bessemer

(5 Cie 1000, eee he ssemer,

396 F.2d 44 (5 Cir. 1968).

In the past defendants have considered the matter of

Opposing and appealing orders of the Court in school

desegregation matters sufficiently important to supplement the

board's legal staff with special attorneys. As this Court noted

in its order of August 25, 1970:

The many factors involved in operating a

large school system and the need for long-

range plans to guide in site selection,

recruitment and placement of teachers,

logistics and other things all suggest the

previous findings in this case. To the extent that any such conflicts

are argued it is the view of the Court that it is bound by

. Superseding facts and caselaw.

65b

Opinion and Order - May 11, 1971

desirability of a good comprehensive plan. The

record does not indicate that the Board ever

made use of the desegregation aids available to

it upon request from the various state and

federal agencies, or of the expertise in

desegregation technique, acquired by counsel

for plaintiffs after participating in many

desegregation cases.

The board has never employed special consultants .to assist

the administrative staff of the board. With the help of the

district court there the board in Mecklenburg County, North

Carolina recognize such a need and the Supreme Court

approved the procedure of the employment of an expert as a

consultant. Swarm _v. Charlotte-Mecklenburg Board of

Education, supra.

As noted, this Court has jurisdiction over school

desegregation action in the nearby counties of Manatee,

Sarasota and Lee and is by virtue of residency therein and of

common knowledge aware of the steps being taken in Pinellas

County, the plan for which was ordered by a fellow judge of

this Court.

Like Hillsborough, these counties are all on the west

coast of Florida and the school problems in each have much

in common. Pinellas County, just across the bay has the most

similar problems. Each of said counties has accomplished a

degree of desegregation in its schools which far exceeds that

in Hillsborough. To a considerable extent, and with minor

exceptions this results from a difference in attitude expressed

and action taken by school boards, school administrative and

legal staffs, local newspapers, civic organizations and county

66b

Opinion and Order - May 11, 1971

and municipal leaders. For example, shortly after this court's

order directing pairing of certain schools, a news Story in a

local newspaper quoted the Mayor of Tampa as Saying that he

would transfer his children to a private school and recently a

civic club in Tampa publicly commended the Superintendent

of Schools and the school board for Outstanding service, not

directly as a result of, but after notice of the extent of

Segregation in local schools and the Supreme Court decision

in Swan.

The position expressed by counsel for defendants at

one of the 1970 hearings that the Constitution does not require

integration but only forbids Segregation has long been

rejected. United States v. Jefferson Board of Education, 372

F.2d 836 (5 Cir. 1966), aff.en banc 380 F.2d 385 (1967).

Desegregation Must Be Accomplished Now

The time for deliberate speed is over, Griffin v. Schoo]

Board of Prince Edward County, 377 U.S. 218 (1964); that

doctrine has been sent "to its final resting place." Singleton v.

Jackson Municipal Separate School District, 419 F.2d 12] l,

1216 (5 Cir. 1969). It is the obligation of school boards to

terminate their dual systems "at once." Alexander v. Holmes

County Board of Education, 396 U.S.19, 20 (1969).

By reason of the foregoing, it is

ORDERED, ADJUDGED AND DECREED:

1. No later than June 15, 1971, the school board

shall file with the Court and serve upon plaintiffs a plan or

plans for desegregating the Hillsborough County School

67b

Opinion and Order - May 11, 1971

System in accordance with this order, said plan to become

effective with the beginning of the 1971-1972 school year.

In formulating the plan, the school board shall

follow these 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, 80%/20% in the junior high schools,

and 79%/21% in the elementary schools would

be the most acceptable and desirable form of

desegregation.

pairing, grouping, clustering, and use of

Satellite attendance zones. Where pairing,

grouping, and clustering are used, every effort

shall be made to avoid splitting of grades. If in

some instances it becomes necessary to split a

grade the school board shall file figures

showing the extent of desegregation which

would result if the grades were not split. No

splitting of grades will be approved unless it

results in a degree-of desegregation equal to

that which would result if the grades were not

68b

Opinion and Order - May 11, 1971

split. In view of what has gone on before, any

proposed desegregation by use of rezoning or

gerrymandered zoning shall be supplemental,

secondary, and alternative to desegregation by

the techniques mentioned earlier in this sub-

Paragraph (c) and shall not be in lieu thereof.

(d) In formulating the plan the school board

should consult with experts and authorities in

the field of desegregation who are unaffiliated

with the Hillsborough County School System.

(€) In formulating the plan the school board

Shall examine and consider the plans used and

in effect in Manatee, Sarasota, Lee and

Pinellas Counties and should consult with

school officials in those counties. The Clerk of

the Court is directed to make the files in these

cases available to defendants.

3. On May 21, 1971, May 28, 1971, and June 4,

1971, the school board shall file with the Court status reports

detailing its steps taken in complying with this order.

4. As noted, the location of new school sites is a

matter directly affecting existing segregation in schools. If the

board requires court consideration of new school site locations

or purchases it may submit a request for the same at any time.

3 Should the school board again default on its

obligation to present a legally acceptable plan the Court will

direct its attention to the provisions of plaintiffs' proposed

plan of July 15, 1970. The Court will also then determine

whether to appoint at defendants’ expense an expert or experts

69b

Opinion and Order - May 11, 1971

in the field of education for the purpose of obtaining a

satisfactory desegregation plan.

6. Copies of this order will be sent to each of

Present members of the school board, as well as the

superintendent of schools.

7. Jurisdiction is retained.

DONE and ORDERED at Tampa, Florida, this 11th

day of May, 1971.

Ben Krentzman

UNITED STATES DISTRICT JUDGE

70b

Opinion and Order - May 11, 1971

[FOLD-OUT]

CHART ONE

STUDENT POPULATION BY RACE

AT SELECTED HILLSBOROUGH

COUNTY SCHOOLS

71b

CHART ONE

STUDENT 2 IPULATION BY RACE AT SELECTED HLLLSBOROUG:: COUNTY SCIIOOLS

SCHOOL

bwAKE

MIDDLE-

35ee Defendaznzs

See Defendants

eee a et a er -

See Defendazrzs'

See Defendanz=s' Report, filed September 25, 1968.

1967-1970

SENIOR HIGH SCHOOLS

1967-58 School Yr. 1968-69 School Yr. 1969-70 Sehu-t gr.

as of 9-1$-67.* as of 9-17-68.2 as Gf 1-24-15.

BLACX WHITE BLACK WHITE SACK LSIULE

1122 0 855 0 877 5

102. 0 1029 0 LOLO ;

Report, filed September 20, 1967.

Report, filed December 23, 1969.

Report, filed Novenber 12, 1970.

1970-71 School

as of 10-23-70.

BLACK WHITE

526 0

ir.

Opinion and Order - May 11, 1971

[FOLD-OUT]

CHAR

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