# Opposition Brief — Manning ex rel. Manning v. School Board of Hillsborough County > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1956%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2001 - **Citation:** 534 U.S. 824 ## Text NN ae Supreme Couri, U.S. es PriLEs (Q) "a JUL 18 2001 No. 00-1971 CLERK In the Supreme Court of the Anited States Andrew L. Manning, et al., Petitioners, V. 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. i. 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. il ————— LIST OF PARTIES TABLE OF AUTHORITIES TABLE OF CONTENTS RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION FOR CERTIORARI STATEMENT OF THE CASE ARGUMENT I. 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 1 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). 2 —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 3 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” 5 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 7 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. 8 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 9 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. 10 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 11 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. 12 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. 13 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 14 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 15 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, 16 503 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. 17 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. 18 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. 19 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. 20 4 GEE A, es il RE AE ON le Stet Del bs Daler eaAl/ as i BY Goi sndhipictnittik \nowonals Wir ne tts irene, EN 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 21 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 22 RUM LA Sees arcana a é ‘ 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. ; 23 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 24 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. 25 siilaitealihesitiataaae eens aiainimaaneaniin 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. 26 KK 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. 27 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 28 ee ee ae eee Pee ee ee ee ee ee ee a ee. ee ee yee ee ae 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. 29 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. 30 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 OR Ree ee eee ee te ee en - oo Tey Here SeeyCRN 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, V. THE BOARD OF PUBLIC INSTRUCTION OF wee Ne eee eee ie ie a aS aS aS SE ES ES OS C™™ 1b 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 2b ie eee ary ie tae. ON ee ee eaeee, omens Rene eee oe Sa ak 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, 3b 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. 4b Sal Sotascseiha Siaiotiiss = PLE GO SR A EIN LY FS ek OK ny As She BULAN EN NE sy 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’ Sb 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. 6b 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 7b 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 8b 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. 9b 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 LL 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 I 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 © Judge George Whitehurst. Hillsborough County was in 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 ae 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 3 3 2 Y 4 ” a 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 ee 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. II 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. 32b i 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]. IV 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 ee 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 to 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 ee 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 © The Court has not been informed what the current 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. II 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 sata 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 oo ee eee 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 ee 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 ERESEE IES ee aoe Opinion and O [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1956%3A3. Public record. Not legal advice.