Manning v. School Board of Hillsborough County, Florida Petition for a Writ of Certiorari

    No. 00- 1811

In  The

i^upratte Gunirt nf the United States

Andrew L. Manning, et al.,
Petitioners,

v.

The School Bo.ard of Hillsborough County, Florida 
(formerly Board of Public Instruction of 

Hillsborough County, Florida), et al.,
Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Elaine R. Jones 
Director-Counsel

Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2259

Warren Hope Dawson 
Dawson Law Office 
1467 Tampa Park Plaza 
Tampa, FL 33605 
(813) 221-1800

Victor A. Bolden 
(Counsel o f Record)
Jesse M. Furman
Kenneth D. Heath
Wiggin & Dana
One Century Tower
265 Church Street
New Haven, CT 06508-1832
(203) 498-4400

Counsel fo r  Petitioners



1

QUESTIONS PRESENTED

The Eleventh Circuit Court of Appeals reversed the 
District Court’s ruling that Respondent Hillsborough County 
School Board had not eliminated the vestiges of de jure 
segregation and had not demonstrated good-faith compliance 
with the Court’s orders and the Equal Protection Clause. The 
Eleventh Circuit’s opinion raises several questions 
appropriate for review by this Court. The questions 
presented are:

1. Whether the burden of proving that current racial 
imbalances are related to the prior de jure  segregated school 
system or later actions by school district officials shifts to the 
plaintiffs, even though the defendant school system has failed 
to prove that these racial imbalances are not within its 
control.

2. Whether a school board seeking relief from a 
desegregation decree may satisfy the good-faith requirement 
absent specific proof, or other objective evidence, that it is 
unlikely to revert to its former unlawful conduct.

3. Whether, under the clearly erroneous standard, the 
factual findings of the District Court may be disregarded by 
the Court of Appeals in favor of findings by the Magistrate 
Judge when the District Court findings are based on 
extensive documentary evidence and reasonable inferences 
drawn from facts in the record.



1. All African-American children eligible to
attend public schools in Hillsborough County, 
Florida, and their next friends, Petitioners;

2. Darnel Cannon, Petitioner;

3. Nathaniel Cannon, Petitioner;

4. Norman Thomas Cannon, Petitioner;

5. Tyrone Cannon, Petitioner;

6. Andrew L. Manning, Petitioner;

7. Gail Rene Myers, Petitioner;

8. Randolph Myers, Petitioner;

9. Sanders B. Reed, Petitioner;

10. Sandra Reed, Petitioner;

11. Shayron Reed, Petitioner;

12. School Board of Hillsborough County,
Florida, Respondent;

13. Glenn Barrington, Respondent;

14. Carolyn Bricklemyer, Respondent;

15. Carol W. Kurdell, Respondent;

16. Jack R. Lamb, Respondent;

17. Joe E. Newsome, Respondent;

18. Candy Olson, Respondent;

19. Doris Ross Reddick, Respondent.

ii

LIST OF PARTIES



QUESTION PRESENTED...... .............................   i

LIST OF PARTIES .................................................................... ii

TABLE OF AUTHORITIES..................................................... iv

OPINIONS BELOW ..................................................................1

JURISDICTION.......................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED....................  2

STATEMENT OF THE CASE..................................................2

REASONS FOR GRANTING THE W RIT..............................8

I. The Decision of the Court of Appeals
Conflicts With This Court’s Decisions and 
Those of Other Circuits and Improperly Shifts 
the Burden of Proof on the Unitary Status 
Issue to Plaintiffs................................................ 8

II. The Court of Appeals’ Interpretation o f the
Good-Faith Standard Conflicts With the 
Framework Established by this Court’s 
Decisions in Freeman and Dowell and with 
the Tenth Circuit’s Interpretation...................18

III. The Court of Appeals Misapplied Governing
Law in its Review of the District Court’s 
Factual Findings...............................................24

iii

TABLE OF CONTENTS
Page

CONCLUSION 29



IV

Anderson v. Bessemer, 470 U.S. 564 (1985)..... 24, 25, 26, 27

Belk v. Charlotte-Mecklenburg Board o f  Educ., 233 
F.3d 232 (4th Cir. 2000), vacated and reh ’g  en 
banc granted, Nos. 99-2389 (4th Cir. Jan 17, 2001).........21

Board o f Educ. v. Dowell, 498 U.S. 237 (1991)............passim

Brown v. Board o f  Educ., 349 U.S. 294 (1955).............. 23, 24

Brown v. Board o f  Educ, 978 F.2d 585 (10th Cir.
1992).........................................................   13,21,23

Coalition To Save Our Children v. State Board o f  
Educ., 90 F.3d 752 (3rd Cir. 1996)................................15, 21

Dowell v. Bd. o f  Educ., 8 F.3d 1501 (10th Cir. 1993).... 14, 19

Freeman v. Pitts, 503 U.S. 467 (1992)........................... passim

Friends o f  Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167 (2000).............  22

Jenkins v. Missouri, 122 F.3d 588 (8th Cir. 1997)............... 14

Keves v. School Dist. No. 1, Denver, Colorado, 413 
U.S. 189 (1973)................................................................. 9, 14

Lockett v. Bd. o f  Educ., I l l  F.3d 839 (11th Cir.
1997) (Lockett I I ) .....................       7

Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987).............. 20, 22

TABLE OF AUTHORITIES

Cases Page



V

Missouri v. Jenkins, 515 U.S. 70 (1995).........................10, 17

Peretzv. United States, 501 U.S. 923 (1991)........................ 27

Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.
1982)........................................................................................ 25

Reed v. Rhodes, 179 F.3d 453 (6th Cir. 1999).......................15

Swann v. Charlotte-Mechlenburg Bd. O f Educ.,, 402 
U.S. 1 (1971).................................................................. 10, 11

United States v. City o f Yonkers, 181 F.3d 301 (2d 
Cir.), vacated and opinion substituted, 197 F.3d 41 
(2d Cir. 1999), cert, denied, 529 U.S. 1130 (2000)...........15

United States v. Concentrated Phosphate Export 
Ass'n, 393 U.S. 199 (1968)....................................................22

United States v. Raddatz, 447 U.S. 667 (1980)...............27, 28

Constitutional Provisions Involved

United States Constitution Article III, § 1 ............................. 27

United States Constitution Amend. X IV ........................ passim

Statues and Rules

28U.S.C. § 1254(1).....................................................................2

28 U.S.C. § 63 6 .................................................................passim

TABLE OF AUTHORITIES - Continued
Page



VI

Page

12 Charles Alan Wright, et ah, Federal Practice and 
Procedure, Civil 2d, § 3068.2 (2d ed. 1997).......................27

Fed. R. Civ. P .52  (a )................................................................ 25

TABLE OF AUTHORITIES - Continued



In the
SUPREME COURT OF THE UNITED STATES

No. 00-

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 a Writ of Certiorari to the 
United States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Andrew L. Manning, et a l, respectfully petition for a 
writ o f certiorari to review the judgment of the United States 
Court o f Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals, App. la-4 la, is 
reported at 244 F.3d 927. The opinions of the District Court, 
App. 42a-56a, 57a-187a, are reported at 28 F. Supp. 2d 1353 
and 24 F. Supp. 2d 1277, respectively. The reports and 
recommendations of the Magistrate Judge, App. 188a-272a, 
273a-314a, are unreported.



2

JURISDICTION

The Court of Appeals entered its judgment on March 
16,2001. App. la. The jurisdiction of this Court is invoked 
under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

This case involves the Fourteenth Amendment to the 
United States Constitution and 28 U.S.C. § 636(b)(1).

The Fourteenth Amendment provides, in relevant
part:

All persons bom or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and the State wherein they reside. 
No state shall . . . deny any persons within its 
jurisdiction the equal protection of the laws.

28 U.S.C. § 636(b)(1) provides in pertinent part:

A judge of the court shall make a de novo 
determination o f those portions of the report or 
specified proposed findings and recommendations to 
which objection is made. A judge of the court may 
accept, reject, or modify, in whole or in part, the 
findings or recommendations made by the magistrate. 
The judge may also receive further evidence or 
recommit the matter to the magistrate with 
instructions.

STATEMENT OF THE CASE

This case involves a decision by the Eleventh Circuit 
reversing a District Court ruling that the School Board of 
Hillsborough County, Florida, et al. (“Respondents”) had 
failed to eliminate the vestiges of the prior de jure  segregated 
school system, had not complied in good faith with its orders 
and the Equal Protection Clause, and therefore had not 
achieved unitary status. The Eleventh Circuit rejected factual



3

findings detailing how Respondents failed to prove that it 
was not responsible for the current racial imbalances in its 
school system and how Respondents failed to act in ways 
consistent with the District Court’s orders and the Equal 
Protection Clause. In doing so, the Eleventh Circuit relied on 
the factual findings made by the Magistrate Judge, findings 
expressly rejected by the District Court.

The critical issues for purposes of this Petition 
involve the circumstances arising from Petitioners’ 
allegations of violations of the District Court’s orders of May 
11, 1971 and July 2, 1971 and the consent order of October 
24, 1991.

The 1991 Consent Order modified, but did not replace 
either the May 11, 1971 Order or the July 2, 1971 Order. 
Instead, it maintained all of the obligations of these prior 
orders, but permitted Respondents to convert its student 
assignment system from single-grade centers to three-grade 
middle schools and four-grade high schools. App. 68a. With 
this conversion, Respondents intended to provide for a school 
system organized into various feeder sets or “clusters,” 
containing two or more elementary schools, one or more 
middle schools and a single high school. “Because the school 
system remained under the Court’s supervision, 
[Respondents] were required to propose their Middle School 
Plan (also known as the ‘Cluster Plan’) to the Court.” App. 
67a. In implementing this new student assignment system, 
Respondents pledged to “minimize (to the extent practicable) 
the number of schools which deviate from the system-wide 
student enrollment [race] ratios.” App. 69a.

In 1994, Respondents’ implementation of the third 
year of this new student assignment system exacerbated 
rather than ameliorated racial imbalances in the school 
system. At that time, sixteen of Respondents’ schools had 
exceeded the system-wide African-American student race 
ratios by nearly 20% or more. As a result, Petitioners filed a 
motion to enforce the District Court’s Orders. The District



4

Court referred the matter to a Magistrate Judge for a report 
and recommendation pursuant to 28 U.S.C. § 636(b)(1). 
After a hearing and extensive briefing, the Magistrate Judge 
concluded that the School Board’s actions violated neither 
the 1971 nor the 1991 court orders. App. 188a-272a. 
Following receipt of the Magistrate Judge’s report and 
recommendation as well as objections filed by Petitioners, 
the District Court determined that the lack o f a finding of 
unitary status “effectively complicate^] the analysis of the 
current controversy and demonstrate[d] the need to expand 
the scope of the inquiry to a full-fledged determination of 
whether the Hillsborough County school system has in fact 
achieved unitary status.” App. 189a. Following further 
evidentiary proceedings, the Magistrate Judge concluded in 
its second report and recommendation that “the public school 
system of Hillsborough County ha[d] attained unitary status 
and should be released from Court supervision pursuant to 
such further Orders as may be appropriate under the 
circumstances.” App. 269a.

Based on its de novo review o f the Magistrate Judge’s 
report and recommendation, the District Court rejected the 
critical finding of unitary status, holding that Respondents 
had failed to eliminate the vestiges of the prior de jure  
segregated school system and had not complied in good faith 
with the Court’s orders and the Equal Protection Clause. 
App. 186a. Although the Hillsborough County public school 
system experienced very little increase in the percentage of 
its black student population during the last quarter century, 
the District Court concluded that there was substantial racial 
imbalance in its student enrollment. App. 84a-85a. Sixteen 
schools had race ratios of African-American schoolchildren 
far in excess of the 19.4% African-American population 
system-wide; all but three were elementary schools. Id. The 
Court was not “convinced that a shift in demographics and 
residential patterns explains the racial imbalances in the 
Hillsborough County School system.” Id.



5

Respondents relied on data “o f school-aged children 
from ages 0-17 to explain enrollment ratios at the elementary 
schools.” App. 98a. As the District Court noted, “the fact 
that the 0 to 17 age group logically encompasses children too 
young and too old to attend elementary school, counsels] 
against placing great weight on the use o f these statistics.” 
App. 98a. Indeed, on further inspection, the District Court 
found that “the total number of school-aged students in the 
attendance zones was an overstatement of actual attendees at 
the elementary schools at issue,” App. 106a, and that “the 
percentage of black school children actually attending each 
school almost always exceeded the ‘overstated’ 
percentages . . . .” Id. Based on this evidence and evidence 
presented by Petitioners, the District Court held that 
Respondents had “failed to prove that the racial imbalances 
are not traceable, in a proximate way, to the past de jure  
segregation.” App. 87a.

The District Court also found that Respondents had 
not complied in good faith with its orders. The District Court 
found that Respondents “unilaterally determined that they 
were not responsible for the racial imbalances; therefore, 
there was no need to take affirmative steps” to desegregate. 
App. 105a. In addition, Respondents failed to recognize and 
adopt common desegregation techniques, even ones included 
within the District Court’s prior orders. App. 134a. This 
“lack of appreciation cast[] doubt on the competence of the 
individuals charged with the task of desegregating the 
schools.” Id. The District Court concluded that the lack of 
good-faith compliance with its orders “taintfed] the analysis 
of the other facets of the school district’s operations,” App. 
184a-185a, and made it “very difficult in a case such as this 
to categorize different aspects of the school system and 
declare individual areas unitary.” App. 185a. Therefore, the 
Court could not make factual findings for partial unitary 
status on any aspect o f the school system.



6

In a supplemental opinion, following Respondents’ 
motion to alter or amend this judgment, the District Court 
reiterated the bases for its prior ruling. The District Court 
again noted “that the racial imbalances in Hillsborough 
County appear traceable to [Respondents’] prior 
unconstitutional practices and the continued unconstitutional 
inaction.” App. 53a. The District Court also amplified the 
basis for its ruling on good faith, finding no basis to conclude 
that Respondents would not revert to their prior segregated 
regime. Id. The District Court faulted Respondents for 
failing to submit “documentation of the strategic planning 
[they] have engaged in to ensure that discrimination does not 
occur in the future.” Id. Likewise, the District Court pointed 
out the failure of Respondents to provide the information 
necessary to determine the relationship between school site 
selection and current racial imbalances. See id. (“Wouldn’t it 
be great, if, in the future, [Respondents] were able to say: 
‘Here it is, we looked at the land value, population, growth 
patterns, budget, racial compositions, etc., and even more, 
without having been ordered by the Court to do so ”’).

A panel of the Eleventh Circuit reversed the District 
Court’s decision and remanded with instructions to enter 
judgment declaring Respondents’ school system unitary. 
App. 2a. Rather than rely on the factual findings actually 
made by the District Court, the Eleventh Circuit concluded 
that the District Court “seemed to have adopted in toto 
[Respondents’] theory o f the case (and the Magistrate Judge’s 
finding).” App. 19a. The Court later noted: “Since the 
district judge did not observe any of the testimony from the 
evidentiary hearing, naturally she could not evaluate the 
credibility o f the witnesses.” App. 22a.

The Eleventh Circuit then reversed the District 
Court’s ruling on whether the Respondents had met their 
burden of proof in eliminating the vestiges of the prior de 
jure  segregated school system to the extent practicable, 
holding that the District Court relied on an improper legal



7

standard. While the existence o f racially imbalanced schools 
required Respondents to “prove that the imbalances are not 
the result of present or past discrimination on its part,” App. 
35a (quoting Lockett v. Bd. o f  Educ., 111 F.3d 839, 843 (11th 
Cir. 1997) [hereinafter Lockett II]), “a school board 
overcomes this presumption when it shows that some 
external force, which is not the result of segregation and is 
beyond the school board’s control, substantially caused the 
racial imbalances.” Id. Once this standard had been met, the 
Eleventh Circuit held, “a plaintiff [seeking] to preserve the 
presumption of de jure  segregation . . . must show that the 
demographic shifts are the result o f the prior de jure  
segregation or some other discriminatory conduct.” App. 
36a. Applying this standard, the Eleventh Circuit found that 
the plaintiffs “merely persuaded the district judge that 
demographics alone did not account for the racial 
imbalances,” a finding “insufficient to deny [the School 
Board] a declaration of unitary status.” App. 36a-37a.

The Eleventh Circuit also reversed the District 
Court’s finding with regard to good faith. Limiting its review 
to only the issues of “apathy” and the lack of a viable 
majority-to-minority (MTM) program, the Eleventh Circuit 
found that neither issue provided a basis for the District 
Court’s decision. According to the Court of Appeals, the 
District Court’s finding of “apathy” amounted to nothing 
more than an erroneous application of the law. App. 37a. 
The Court of Appeals rejected the District Court’s 
conclusions with respect to the MTM program on two 
grounds: (1) even if properly implemented, this program 
“should have had only marginal relevance in analyzing 
whether Appellants’ ‘policies form[ed] a consistent pattern of 
lawful conduct directed to eliminating earlier violations,’” 
App. 39a (quoting Lockett II, 111 F.3d at 843), and (2) 
discerning a school board’s good faith is a “subjective 
finding,” depending “in part on the judge’s personal 
observation of the witnesses.” App. 40a. “Where, as here, a 
district judge does not personally observe the witnesses in



making subjective finding of fact, we view such a finding 
with skepticism.” Id.

Having reversed both the District Court’s finding on 
the elimination of vestiges and its finding on good faith, the 
Eleventh Circuit declared that “federal judicial supervision of 
the Hillsborough County school system shall cease.” App. 
40a-41a.

REASONS FOR GRANTING THE WRIT

Petitioners seek this Court’s review for three reasons. 
First, the Eleventh Circuit improperly shifted the burden of 
proof on the issue of unitary status from the Respondents to 
the Petitioners, a holding without precedent in this Court or 
any other Court of Appeals. Second, the Eleventh Circuit 
narrowed the scope of this Court’s good-faith inquiry to 
require no showing that Petitioners will be free from 
discrimination in the future. Third and finally, the Court of 
Appeals disregarded the factual findings of an Article III 
judge and instead relied on the findings of a Magistrate 
Judge.

To address the fundamental issues raised herein, this 
Court should grant certiorari and review the Eleventh 
Circuit’s decision.

I. The Decision of the Court of Appeals Conflicts 
With This Court’s Decisions and Those of Other 
Circuits and Improperly Shifts the Burden of 
Proof on the Unitary Status Issue to Plaintiffs

Under existing law, a school board operating under a 
desegregation decree is not responsible for any racial 
imbalances that are beyond its control. However, the 
talismanic invocation of demographic change does not 
relieve a school board of responsibility to remedy racial 
imbalances that it has failed to prove are not within its 
control. Nevertheless, the Eleventh Circuit has now held



9

that, so long as a “school board shows that demographic 
shifts are a substantial cause of the racial imbalances,” App. 
35a, the school board no longer has a burden to explain or 
address any racial imbalance in its school system and the 
burden of proof shifts to plaintiffs to establish that vestiges of 
the de jure  segregated system still exist. The Eleventh 
Circuit’s ruling represents nothing less than a fundamental re­
allocation of the burden of proof in school desegregation 
cases. It is clearly inconsistent with this Court’s precedents 
and the precedents of other Court of Appeals. As a result, 
this Court should grant certiorari to review this decision.

It is well settled that, having once violated the 
constitutional rights of African-American schoolchildren and 
their parents by maintaining segregated schools, “[t]he duty 
and responsibility of a school district once segregated by law 
is to take all steps necessary to eliminate the vestiges of the 
unconstitutional de jure  system.” Freeman v. Pitts, 503 U.S. 
467, 485 (1992). Long ago, this Court recognized that, given 
this past violation, any existing racial imbalance is presumed 
to be the product of a school system which has decided to 
return to its old segregative ways. See Keyes v. School Dist. 
No. 1, Denver, Colorado, 413 U.S. 189, 208 (1973) (“[A] 
finding of intentionally segregative school board actions . . . 
creates a presumption that other segregated schooling within 
the system is not adventitious”); id. at 210 (“[B]e it a 
statutory dual system or an allegedly unitary system where a 
meaningful portion of the system is found to be intentionally 
segregated, the existence of subsequent or other segregated 
schooling within the same system justifies a rule imposing on 
the school authorities the burden of proving that this 
segregated schooling is not also the result of intentionally 
segregative acts”). As this Court reaffirmed in Freeman, 
“[t]his inquiry is fundamental, for under the former de jure  
regime racial exclusion was both the means and the end of a 
policy motivated by disparagement of, or hostility towards, 
the disfavored race.” 503 U.S. at 474.



10

External factors, such as widespread demographic 
change, can effectively preclude further desegregation and 
thereby provide an explanation for any current racial 
imbalance. Racial balance is not to be achieved for its own 
sake, but rather “is to be pursued when racial imbalance has 
been caused by a constitutional violation.” Id. at 494. A 
school district is under no duty to remedy racial imbalances 
caused by demographic factors “once the racial imbalance 
caused by the de jure  violation has been remedied.” Id. 
(citing Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 402 
U.S. 1, 31-32 (1971)). Under such circumstances, this 
Court’s command to desegregate “to the extent practicable” 
has been satisfied.

The role of the District Court, however, is not to 
presume that any demographic change or even some 
substantial degree of demographic change accounts for any 
current racial imbalance, much less all of it. In Board o f  
Educ. v. Dowell, 498 U.S. 237 (1991), this Court required the 
District Court to consider whether the school district had 
“made a sufficient showing of constitutional compliance.” 
Id. at 249. Before finding that this showing has been made, 
this Court held, the District Court must engage in a factual 
determination highly dependent on the circumstances o f the 
case and conclude that, to the extent that demographic change 
accounts for any racial imbalance, this change is “not 
attributable to the former de jure regime or any later actions 
by school officials.” Freeman, 503 U.S. at 496. Nothing in 
either Dowell, Freeman or this Court’s most recent 
desegregation opinion, Missouri v. Jenkins, 515 U.S. 70 
(1995), suggests that, to the extent that a school system 
wishes to argue that an external factor made further 
desegregation impractical, the burden for proving this does 
not fall on the school district or is shifted to the plaintiff 
schoolchildren.

Furthermore, this Court’s examination in Freeman of 
whether “any later actions by school officials,” 503 U.S. at



11

496, could have resulted in the racial imbalance is critical in 
determining whether a school system has satisfied its burden, 
even in the midst of demographic change. School board 
decisions, such as where to locate new school buildings, can 
influence demographic patterns and promote the re­
segregation of a school district. As this Court recognized in 
Swann:

The construction of new schools and the closing of 
old ones are two of the most important functions of 
local school authorities and also two of the most 
complex . . . .  The result of this will be a decision 
which, when combined with one technique or another 
of student assignment, will determine the racial 
composition of the student body in each school in the 
system. Over the long run, the consequences of the 
choices will be far reaching. People gravitate toward 
school facilities, just as schools are located in 
response to the needs of people. The location of 
schools may thus influence the patterns o f residential 
development of a metropolitan area and have 
important impact on composition of inner-city 
neighborhoods.

402 U.S. at 20-21; see also Freeman, 503 U.S. at 513 
(Blackmun, J., with whom Stevens, J., and O ’Connor, J., 
join, concurring in the judgment) (“Close examination is 
necessary because what may seem to be purely private 
preferences in housing may in fact have been created, in part, 
by actions of the school district”).

An initially successful desegregation plan does not 
relieve a school board still under court order from 
demonstrating that its decisions regarding school construction 
and school closings did not contribute to any current racial 
imbalances. See Swann, 402 U.S. at 21 (“In devising 
remedies where legally imposed segregation has been 
established, it is the responsibility of local authorities and 
District Courts to see to it that future school construction and



12

abandonment are not used and do not serve to perpetuate or 
re-establish the dual system”); see also Freeman, 503 U.S. at 
514 (Blackmun, J., concurring in the judgment) (“Because of 
the various methods for identifying schools by race, even if a 
school district manages to desegregate student assignments at 
one point, its failure to remedy the constitutional violation in 
its entirety may result in resegregation, as neighborhoods 
respond to the racially identifiable schools”). This Court 
further defined the burden in Keyes:

[TJhe Board’s burden is to show that its policies and 
practices with respect to school site location, school 
size, school renovations and additions . . . , student- 
attendance zones, student assignment and transfer 
options, mobile classroom units, transportation of 
students, assignment of faculty and staff, etc., 
considered together and premised on the Board’s so- 
called ‘neighborhood school’ concept, either were not 
taken in effectuation of a policy to create or maintain 
segregation in the core city schools, or, if 
unsuccessful in that effort, were not factors in causing 
the existing condition of segregation in these schools. 
Considerations of ‘fairness’ and ‘policy’ demand no 
less in light of the Board’s intentionally segregative 
actions.

413 U.S. at 214.

The Eleventh Circuit’s “substantial cause” standard 
does not comply with this Court’s precedents. Under this 
standard, a school district is no longer responsible for any 
racial imbalance if  it can show that external factors are a 
“substantial cause” of racial imbalance within the school 
district. App. 35a (“Where a school board shows that 
demographic shifts are a substantial cause of the racial 
imbalances, the defendant has overcome the presumption of 
de jure  segregation”) (citations omitted). A school system is 
not required to explain, let alone remedy, other “substantial 
causes,” which may be just as significant -  or more -  or



13

constitute the predominant basis for the current racial 
imbalance. See App. 35a-36a (“[A] plaintiff does not 
undermine the strength of a defendant’s demographic 
evidence by merely asserting that demographics alone do not 
explain the racial imbalances. Rather, for a plaintiff to 
preserve the presumption of de jure segregation, the plaintiff 
must show that that the demographic shifts are the result of 
prior de jure  segregation or some other discriminatory 
conduct”) (citations omitted). This approach not only 
conflicts drastically with the decisions of this Court, but also 
those of other Courts of Appeals. Indeed, not a single Court 
of Appeals has applied the burden-shifting test adopted by 
the Eleventh Circuit.

Not long after Freeman, the Tenth Circuit, in Brown 
v. Board o f  Educ, 978 F.2d 585 (10th Cir. 1992), clearly 
rejected this approach, reversing a district court for engaging 
in precisely this type of burden shifting: “Neither Freeman 
nor Dowell suggests that the plaintiffs in the remedial phase 
of school desegregation litigation must make a new showing 
of discriminatory intent in order to obtain relief from a 
current condition of segregation. The district court wrongly 
required the plaintiffs to make such a showing.” Id. at 589. 
Rather than adopt a “substantial cause” approach, the Tenth 
Circuit clarified the “substantial burden” placed on the 
defendants in these cases. Id. at 590 (“In the continuing 
remedial phase . . .  the district court must impose upon 
defendants the substantial burden of demonstrating the 
absence o f a causal connection between any current condition 
of segregation and the prior de jure system”). If this burden 
is not satisfied, “the district court must retain some measure 
of supervision over the school system.” Id. (citations 
omitted).

Under the Tenth Circuit’s approach, a school system 
does not fulfill its burden even with evidence of demographic 
change, unless the current racial imbalance is “only a product 
of demographic changes outside the school district’s



14

control.” Id. at 591. The Tenth Circuit also applied this 
standard in Dowell v. Bd. o f Educ., 8 F.3d 1501 (10th Cir.
1993), requiring factual findings consistent with Freeman 
that the school system did not play a role in, or contribute in 
any way to, the demographic change. See id. at 1511 n.6. 
The Eleventh Circuit’s “substantial cause” standard falls far 
short of the Tenth Circuit’s mark.

The Eighth Circuit has also rejected the Eleventh 
Circuit’s lenient standard. Following the remand after this 
Court’s decision in Jenkins, the Eighth Circuit addressed the 
presumption and expressly rejected the notion that anything 
short of proof that the racial imbalances resulting from the 
dual system have been eliminated in their entirety satisfies a 
school board’s burden. See Jenkins v. Missouri, 122 F.3d 
588, 593 (8th Cir. 1997) (“Only when a school district has 
attained unitary status does the burden of proving disparities 
were caused by intentional segregation shift back to the 
plaintiffs”); see also id. at 595 (‘“ [Cjertainly plaintiffs in a 
school desegregation case are not required to prove ‘cause’ in 
the sense of ‘non-attenuation’”) (quoting Keyes, 413 U.S. at 
211 n.17). The Eighth Circuit then upheld the District 
Court’s finding that the School Board had not met its burden 
for addressing the vestige of student achievement disparities, 
despite evidence that they were substantially caused by 
external factors:

It is evident that the District Court rejected Dr. 
Armor’s opinion that socio-economic factors alone 
were the cause of the achievement gap in the [Kansas 
City Missouri School District], We cannot say that 
the District Court clearly erred in making this finding. 
The burden of proof was on the State to prove that it 
had not caused the gap, and the State’s expert could 
not explain a third of the achievement gap by his 
socio-economic theory. The State simply failed to 
carry its burden, and our discussion could end at this 
point.



15

Id. at 598. Regardless o f the partial contribution of external 
factors to existing disparities, the Eighth Circuit, like the 
Tenth Circuit, refused to shift the burden of proof to the 
plaintiffs and held that the school system had a continuing 
responsibility to eliminate to the extent practicable those 
racial imbalances or disparities within its control.1

Applying the well-established principles o f this Court, 
the District Court in this case properly found that 
Respondents failed to meet their burden of proof with regard 
to current racial imbalances in their school system. While 
Respondents argued that changing demographics had both 
caused these racial imbalances and made it impractical to 
ameliorate them, the District Court found that Respondents 
had failed to explain numerous decisions that affected school 1

1 Recent rulings in other Circuits similarly offer no 
support for the Eleventh Circuit’s position. The Sixth Circuit 
has adopted the Freeman approach verbatim, noting that a 
school district is not required to remedy imbalances caused 
by demographic shifts “once the racial imbalance due to the 
de jure violation has been remedied.” Reed v. Rhodes, 179 
F.3d 453, 466 (6th Cir. 1999) (quoting Freeman, 503 U.S. at 
494). Although the Court there affirmed a finding of unitary 
status, it based its holding on the absence of any evidence to 
suggest that the school system’s evidentiary burden had not 
been met, and its opinion provides no support for the 
Eleventh Circuit’s approach. See id. at 466-67.

Both the Second and the Third Circuits have held that 
the burden does shift from the school system to the plaintiff 
schoolchildren when there had never been a finding of a 
vestige. See United States v. City o f  Yonkers, 181 F.3d 301, 
311 (2d Cir.), vacated and opinion substituted, 197 F.3d 41 
(2d Cir. 1999), cert, denied, 529 U.S. 1130 (2000); Coalition 
to Save Our Children v. State Board o f Educ., 90 F.3d 752, 
776 (3d Cir. 1996). This legal distinction is not and could not 
be the basis for the Eleventh Circuit’s decision in this case.



16

enrollment and that demographic change could not be solely 
responsible for the racial imbalances. On the first point, 
Respondents’ own analysis failed “to address [their] initial 
decisions to draw attendance zones, decisions not to act when 
it was apparent that those zones were inappropriate, or other 
School Board decisions, such as, location of new schools, or 
implementation (or lack thereof) of desegregation tools.” 
App. 97a; cf. Freeman, 503 U.S. at 515 (Blackmun, J., 
concurring in the judgment) (“Nor did the court consider how 
the placement of schools, the attendance zone boundaries or 
the use of mobile classrooms might have affected residential 
movement. The court, in my view, failed to consider the 
many ways [the school board] may have contributed to the 
demographic shifts”).

On the second point, the District Court found 
Respondents’ evidence of demographic change insufficient to 
prove that they were not responsible for the racial imbalances 
existing in its schools. See App. 86a (“The Court is not 
convinced that a shift in demographic and residential patterns 
explains the racial imbalance in the Hillsborough County 
School System”). Indeed, the demographic evidence 
presented by Respondents raised more questions than it 
answered:

Since the total number of school-aged students in the 
attendance zones was an overstatement of actual 
attendees at the elementary schools at issue, and 
because the percentage of black school children 
actually attending each school almost always 
exceeded the “overstated” percentages, the Court is 
hesitant to accept [the School Board’s] argument that 
a shift in demography is the sole cause [of] the 
imbalance in these elementary schools. Moreover, 
Plaintiffs have provided evidence that the 
discrepancies were not caused solely by a shift in 
demography.

App. 106a.



17

The District Court did not and could not have 
accepted any demographic data as a basis for releasing the 
School Board from federal court supervision. If, as was the 
case here, the demographic evidence did not provide a clear 
and adequate basis for a factual finding that the School Board 
did not contribute to or cause the current racial imbalances, 
then the District Court could not have found that the School 
Board had met its burden. See Freeman, 503 U.S. at 515 
(Blackmun, J., concurring in the judgment) (“[Tjhis Court’s 
decisions require the District Court ‘to dwell on what might 
have been.’ In particular, they require the court to examine 
the past to determine whether the current racial imbalance in 
the schools is attributable in part to the former de ju re  
segregated regime or any later actions by school officials”); 
c f Jenkins, 515 U.S. at 100-01 (“Although the Court o f 
Appeals later recognized that a determination of partial 
unitary status requires ‘careful factfinding and detailed 
articulation of findings,’ it declined to remand to the District 
Court”). Moreover, following this Court’s guidance from 
Freeman, the District Court in this case found that 
Respondents’ history of poor compliance with its orders 
counseled against a finding that the board had met its burden. 
See App. 86a.2

2 Once the District Court concluded that Respondents 
had failed to satisfy their burden with respect to the area o f 
student assignment, given the interrelationships between this 
area and the other Green factors, the District Court 
appropriately refused to declare the school district unitary in 
any area. App. 184a-185a; see Freeman, 503 U.S. at 497 
(“[T]he Green factors may be related or interdependent. Two 
or more Green factors may be intertwined or synergistic in 
their relation, so that a constitutional violation in one area 
cannot be eliminated unless the judicial remedy addresses 
other matters as well . . . .  As a consequence, a continuing 
violation in one area may need to be addressed by remedies 
in another”).



18

In reversing the District Court’s decision, the 
Eleventh Circuit misapplied this Court’s precedents. Despite 
ample evidence in the record in support of the District 
Court’s factual findings, the Eleventh Circuit substituted its 
novel “substantial cause” standard for the prevailing law. 
Quite simply, the Eleventh Circuit has created a lesser burden 
for school systems found previously to have engaged in de 
jure  segregation, thereby undermining the constitutional 
guarantee of equal protection. This lesser burden turns this 
Court’s command to desegregate “to the extent practicable” 
on its head. By shifting the burden away from the defendant 
school system, the Eleventh Circuit’s approach forces 
plaintiffs in a school desegregation case, not the school 
system, the party with control of all of the information 
explaining the bases for its decisions, to account for racial 
imbalances in the school system. To address the Eleventh 
Circuit’s fundamental error in the interpretation of this 
Court’s precedents as well as its conflicts with other Courts 
of Appeals, certiorari should be granted. II.

II. The Court of Appeals’ Interpretation of the Good- 
Faith Standard Conflicts With the Framework 
Established by this Court’s Decisions in Freeman 
and Dowell and with the Tenth Circuit’s 
Interpretation
This Court should also decide whether, and to what 

extent, a school board seeking relief from a desegregation 
decree must submit proof of how it plans to comply in the 
future with the dictates o f the Equal Protection Clause. By 
failing to require such proof, and reversing the findings of the 
District Court despite evidence that the school board might 
return to its unconstitutional ways, the Eleventh Circuit 
disregarded an important element of the framework 
established by this Court in Dowell and Freeman. In doing 
so, moreover, it created an irreconcilable conflict with the 
Tenth Circuit, which has interpreted Dowell and Freeman to



19

require proof of “specific policies, decisions, and courses of 
action that extend into the future” before a district court may 
grant relief from a desegregation decree. Dowell, 8 F.3d at 
1513 (internal quotation marks omitted). For these reasons as 
well, this Court should grant certiorari.

In Dowell, this Court established that a school district 
seeking relief from a desegregation decree must prove both 
that “the vestiges of past discrimination [have] been 
eliminated to the extent practicable,” Dowell, 498 U.S. at 
249-50, and that the school district has demonstrated good 
faith in complying with its obligations under the Equal 
Protection Clause and the desegregation decree, see id.; see 
also Freeman, 503 U.S. at 491-92. With respect to the latter 
burden, the Court explained that the good-faith requirement 
embodies both retrospective and prospective elements. First, 
the school district must demonstrate that it has “operated in 
compliance with the commands of the Equal Protection 
Clause of the Fourteenth Amendment” and the court’s 
desegregation decrees. Id. at 247. Second, and equally 
important, a school district once found to have engaged in 
intentional discrimination must submit objective proof that 
“it was unlikely . . . [to] return to its former ways.” Id. As 
the Dowell Court reasoned, “A district court need not accept 
at face value the profession of a school board which has 
intentionally discriminated that it will cease to do so in the 
future.” Id. at 249.

In Freeman, this Court reaffirmed that the good-faith 
requirement embodies a forward-looking component. In that 
case, the Court held that a school district seeking termination 
or modification o f a desegregation decree must first 
demonstrate “its commitment to a course o f action that gives 
full respect to the equal protection guarantees of the 
Constitution.” 503 U.S. at 490 (emphasis added). Proof of 
such commitment, the Court explained, demonstrates that a 
school district “will not suffer intentional discrimination in 
the future,” and provides “parents, students, and the public”



20

with “assurance against further injuries or stigma.” Id. at 
498; see also id. at 498-99 (‘“A finding of good faith . . . 
reduces the possibility that a school system’s compliance 
with court orders is but a temporary constitutional ritual’”) 
(quoting Morgan v. Nucci, 831 F.2d 313, 321 (1st Cir. 
1987)). Without such proof, the Court made plain, a school 
district should not be relieved from a desegregation decree: 
“When a school district has not demonstrated good faith 
under a comprehensive plan to remedy ongoing violations, 
we have without hesitation approved comprehensive and 
continued District Court supervision.” Id. at 499 (citing 
cases) (emphasis added).

The Eleventh Circuit ignored these pronouncements, 
and looked only to the past in applying the good-faith 
requirement in this case. See App. 38a (holding that 
Respondents satisfy the good-faith requirement because they 
“never violated a court order, never were sanctioned, and 
consulted extensively with the African-American community 
. . . prior to implementing new student assignments under the 
1991 Task Force Report”). By contrast, the Tenth Circuit has 
properly interpreted Dowell and Freeman to require proof of 
both past conduct and future plans for a school district to 
satisfy the good-faith requirement. See Dowell, 8 F.3d at 
1511-13. As that Court explained the “second,” forward- 
looking “prong” of the inquiry:

The second prong of the good faith inquiry is whether 
it is “unlikely that the school board would return to its 
former ways.” Dowell, 498 U.S. at 247. In Freeman, 
the Supreme Court explained that “[a] school system 
is better positioned to demonstrate its good-faith 
commitment to a constitutional course of action when 
its policies form a consistent pattern of lawful conduct 
directed to eliminating earlier violations.” 503 U.S. at 
491. We have since interpreted the good faith 
showing set out in Freeman to mean that “[m]ere 
protestations o f an intention to comply with the



21

Constitution in the future will not suffice. Instead, 
specific policies, decisions, and courses o f  action that 
extend into the future must be examined to assess the 
school system’s good faith .”

Id. at 1512 (emphasis added) (quoting Brown, 978 F.2d at 
592). Thus, unlike school districts in the Eleventh Circuit, 
school districts in the Tenth Circuit are required, consistent 
with Dowell and Freeman, to submit proof of “future- 
oriented board policies manifesting a continued commitment 
to desegregation” before obtaining relief from a 
desegregation decree. Id. at 1513.

The approaches of the Tenth and Eleventh Circuits 
are irreconcilable. However, a review of other court of 
appeals decisions following Dowell and Freeman reveals that 
confusion over the interpretation of this Court’s holdings runs 
deeper than conflict between the Tenth and Eleventh Circuits. 
In Coalition to Save Our Children v. State Board o f Educ., 90 
F.3d 752, 760 (3d Cir. 1996), for example, the Third Circuit 
quoted the test from Freeman, but failed to engage in any 
inquiry whatsoever with respect to good faith. By contrast, in 
Belk v. Charlotte-Mecklenburg Board o f Educ., 233 F.3d 
232, 252-53 (4th Cir. 2000), vacated and reh’g  en banc 
granted, Nos. 99-2389 et al. (4th Cir. Jan. 17, 2001), a panel 
of the Fourth Circuit held that Freeman requires 
consideration o f both the past conduct and future plans of a 
school district. Unlike the Tenth Circuit, however, the panel 
of the Fourth Circuit suggested that the latter consideration is 
part of the inquiry into whether a school district has 
eliminated the vestiges of discrimination to the extent 
practicable, not the inquiry into good faith. In short, a review 
of court of appeals decisions reveals a range of 
interpretations of the test established in Dowell and Freeman.

Petitioners submit that, among these varied 
interpretations, the Tenth Circuit’s understanding of the 
good-faith requirement -  requiring proof of both past 
compliance with the mandates o f the Equal Protection Clause



22

and “future-oriented board policies manifesting a continued 
commitment to desegregation” -  is the correct interpretation 
of this Court’s precedent and the Constitution, First and 
foremost, the Tenth Circuit’s approach is consistent with the 
test established by this Court in Dowell and Freeman while 
the Eleventh Circuit’s approach is not. For example, the 
Tenth Circuit’s approach to the good-faith requirement takes 
seriously this Court’s statement, quoted above, that a district 
court prior to vacating or terminating a desegregation decree 
must find “that it [is] unlikely that the school board would 
return to its former ways.” Dowell, 498 U.S. at 247. By 
contrast, the Eleventh Circuit’s approach simply ignores this 
statement and the others in Dowell and Freeman like it.

Second, requiring a school district to submit future 
plans gives force to the constitutional guarantee of equal 
protection while looking solely at a school district’s past 
conduct does not. In particular, mandating such future- 
oriented proof distinguishes those school districts that have 
cynically complied with the literal terms of a desegregation 
decree, without genuine commitment to the principles of the 
Equal Protection Clause, from those districts that have truly 
embraced their constitutional obligations and no longer need 
judicial supervision to ensure continued compliance. By 
doing so, the requirement ‘“ reduces the possibility that a 
school system’s compliance with [the dictates of the Equal 
Protection Clause] is but a temporary constitutional ritual.’” 
Freeman, 503 U.S. at 498-99 (quoting Morgan, 831 F.2d at 
321); c f Friends o f Earth, Inc. v. Laidlaw Envtl. Servs. 
(TOC), Inc., 528 U.S. 167, 189 (2000) (holding that, when a 
party asserts that relief is no longer appropriate, that party 
bears the “‘heavy burden of persua[ding]’ the court that the 
challenged conduct cannot reasonably be expected to start up 
again” (quoting United States v. Concentrated Phosphate 
Export A ss’n, 393 U.S. 199, 203 (1968)). As the Tenth 
Circuit explained in Brown, “Depending on the definition of 
‘good faith,’ the possibility of immediate resegregation 
following a declaration o f unitariness seems all too real. For



23

this reason, . . . evaluation of the ‘good faith’ prong of the 
Dowell test must include consideration of a school system’s 
continued commitment to integration.” 978 F.2d at 592 
(emphasis added).

Further, in light of the “complexities arising from the 
transition to a system of public education freed of racial 
discrimination,” Brown v. Board ofEduc., 349 U.S. 294, 299 
(1955), the Tenth Circuit’s understanding of the good-faith 
requirement is more pragmatic than the understanding 
adopted by the Eleventh Circuit. As the record in this case 
reflects, school desegregation decrees are often in effect for 
significant periods of time before school districts can even 
plausibly seek relief from them. Moreover, the decrees 
required to eliminate all vestiges of an unconstitutional de 
jure  system are often ambitious in scope. Under these 
circumstances, those affected by the decrees -  parents, 
students, teachers, administrators, and the public -  come to 
rely upon the policies enacted pursuant to the decrees. 
Terminating a decree without some indication from the 
school district regarding how it plans to comply with the 
Equal Protection Clause absent the decree risks undermining 
these settled expectations and, particularly in a large school 
district, risks wreaking havoc on the school system. By 
contrast, requiring proof of future-oriented board policies 
manifesting a continued commitment to desegregation more 
readily assures an orderly “transition to a system of public 
education freed of racial discrimination,” id., and avoids any 
potential misunderstanding on the part of parents, students, 
teachers and the like that actions taken by a school district in 
the wake of judicial supervision are inconsistent with 
constitutional requirements.

Applying the Tenth Circuit’s correct understanding of 
the good-faith requirement to this case, there is no doubt that 
the Eleventh Circuit erred in reversing the finding of the 
District Court that Respondents failed to demonstrate good 
faith under Dowell and Freeman, or that the Eleventh



24

Circuit’s error will harm Petitioners. Putting aside self- 
serving statements of School Board officials -  evidence this 
Court itself has discounted, see Dowell, 498 U.S. at 249 -  
there is simply no evidence in the record to suggest, let alone 
prove, “that it [is] unlikely that the school board would return 
to its former ways.” Id. at 247. Indeed, the District Court -  
the court best situated to appraise the school district’s 
compliance, see Brown, 349 U.S. at 299 -  expressly found, 
after an exhaustive review of the record, that Respondents 
“fail[ed] to . . . demonstrate that they have strategically 
planned for the future.” App. 50a. In particular, 
Respondents failed to submit “documentation of the strategic 
planning [they] have engaged in to ensure that discrimination 
does not occur in the future.” Id. Respondents simply did 
not give the District Court any indication of what they would 
do if or when unitary status was granted. In fact, the 
Respondent School Board members did not even vote on 
whether to seek unitary status in the first place. (10/25/96 
Unitary Status Hearing Tr. at 25-26).

Given the absence of affirmative proof that 
Respondents were unlikely to revert to their former ways, the 
District Court’s finding that Respondents failed to establish 
good faith was not error -  let alone clear error -  and, but for 
its misapplication of the test established in Dowell and 
Freeman, the Eleventh Circuit would have been required to 
affirm. For this reason, and because the Eleventh Circuit’s 
erroneous interpretation of Dowell and Freeman is in direct 
conflict with the interpretation of the Tenth Circuit, this 
Court should grant certiorari. III.

III. The Court of Appeals Misapplied Governing Law 
in its Review of the District Court’s Factual 
Findings
It is well settled that a district court’s factual findings 

‘“ shall not be set aside unless clearly erroneous.’” Anderson



25

v. Bessemer, 470 U.S. 564, 573 (1985) (quoting Fed. R. Civ. 
P. 52(a)). In Anderson, this Court cautioned that when a case 
turns on the resolution of factual disputes, “the task of 
appellate tribunals . . .  [is limited to] determin[ing] whether 
the trial judge’s conclusions are clearly erroneous.” Id. at 
580-81. Nevertheless, the Eleventh Circuit improperly 
subjected the District Court’s decision to more stringent 
scrutiny solely because the Magistrate Judge -  and not the 
District Court -  conducted the evidentiary hearing in this 
case, and because the Court o f Appeals deemed the 
Magistrate Judge’s credibility determinations “dispositive.” 
App. 40a. A court of appeals is not free to apply an elevated 
standard of review to the findings of a district court on this 
basis. For this reason, this Court should review the Eleventh 
Circuit’s decision.

Relying on its decision in Proffitt v. Wainwright, 685 
F.2d 1227, 1237 (11th Cir. 1982), the Eleventh Circuit wrote 
that “[i]n other contexts . . . [it] ha[d] cautioned district 
judges from overruling a magistrate judge’s finding where 
credibility determinations are dispositive.” App. 40a. It 
proceeded to reverse the District Court’s decision based upon 
either its improperly constrained view of the District Court’s 
authority to review the magistrate’s findings, App. 40a 
(“Where . . .  a district judge does not personally observe the 
witnesses in making a subjective finding of fact, we view 
such a holding with skepticism, especially where, as here, the 
finding is contrary to the one recommended by the judicial 
official who observed the witnesses”), or its erroneous 
application of the prevailing law. App. 20a-21a ( (“[W]e are 
convinced that the district judge agreed with the magistrate 
judge and found that shifting demographics was a substantial 
cause of the racial imbalances in [Respondents’] student 
assignments and that [Respondents] did not deliberately 
cause the racial imbalances”). To reach this conclusion, the 
Eleventh Circuit relied on two fundamentally flawed 
premises.



26

First, the Eleventh Circuit wrongly decided that the 
District Court’s factual findings involved credibility 
determinations. In fact, they did not. The District Court’s 
factual finding that Respondents failed to present sufficient 
demographic evidence in order to meet its burden for 
explaining current racial imbalances in the school system did 
not turn on the credibility of a witness, but rather on the 
limitations of the demographic evidence Respondents 
presented. See App. 98a (“[T]he fact that the 0 to 17 age 
group logically encompasses children too young and too old 
to attend elementary school, counsels] against placing great 
weight on the use of these statistics”). The District Court’s 
factual finding that the School Board failed to comply in 
good faith with its orders and the Equal Protection Clause 
based, in part, on the failure of a School Board official to 
understand a critical part o f the 1971 Order did not turn on 
the credibility of a witness; indeed, the District Court 
accepted the School Board officials’ statements as true. See 
App. 134a (“It is very disturbing that Defendants’ ‘in-house’ 
desegregation expert testified that he did not completely 
understand the import of the MTM program . . . .  Certainly, 
[Respondents] lack of appreciation casts doubt on the 
competence of the individuals charged with the task of 
desegregating the schools”).

Second, the Eleventh Circuit erroneously held that the 
type of fact-finding conducted by the District Court is 
entitled to less deference. As this Court observed in 
Anderson, deference to a District Court’s factual findings is 
warranted under the clearly erroneous standard “even when 
the district court’s findings do not rest on credibility 
determinations, but are based instead on physical or 
documentary evidence or inferences from other facts.” 470 
U.S. at 574. As discussed above, the District Court based its 
findings both on documentary evidence and inferences from 
other facts. It was error for the Eleventh Circuit to reverse 
the District Court’s decision “simply because it [wa]s



27

convinced that it would have decided the case differently.” 
Id. at 573.

Certainly, the fact that the Magistrate Judge had 
engaged in fact-finding does not provide a basis for 
disregarding the District Court’s factual findings. Under 28 
U.S.C. § 636, a district court judge must make a de novo 
determination of the magistrate judge’s findings. See United 
States v. Raddatz, 447 U.S. 667, 674 (1980) (“It should be 
clear that on these dispositive motions, the statute calls for a 
de novo determination, not a de novo hearing. We find 
nothing in the legislative history o f the statute to support the 
contention that the judge is required to rehear the contested 
testimony in order to carry out the statutory command to 
make the required determination”).

A district court’s authority to make a de novo 
determination following a magistrate judge’s hearing is 
essential to protect the rights o f the litigants in matters 
referred by the district court pursuant to 28 U.S.C. 
§ 636(b)(1)(B). As one commentator has observed,

[constitutional concerns explain the statutory 
distinction between types o f pretrial matters. Motions 
thought “dispositive” of the action w arrant. . .  a higher 
standard of review [by the district court] because “of 
the possible constitutional objection that only an article 
III judge may ultimately determine the litigation.”

12 Charles Alan Wright, etal., Federal Practice and 
Procedure: Civil 2d, § 3068.2, at 334 (2d ed. 1997) 
(citation omitted). This Court has previously recognized that 
“Article III, § 1 [of the United States Constitution] serves 
both to protect the role of the independent judiciary within 
the constitutional scheme of tripartite government . . . and to 
safeguard litigants’ right to have claims decided before 
judges who are free from potential domination by other 
branches of government.” Peretz v. United States, 501 U.S. 
923, 929 n.6 (1991) (internal quotation marks and citations



28

omitted); see also Raddatz, 447 U.S. at 686 (Blackmun, J., 
concurring) (noting that litigants’ rights are adequately 
protected by the statutes governing referral o f matters for 
decisions by magistrate judges because “the district judge -  
insulated by life tenure and irreducible salary -  is waiting in 
the wings, fully able to correct errors,” and therefore there is 
no “threat to the judicial power or the independence of 
judicial decisionmaking that underlies Art. III”). While it is 
true that “litigants may waive their personal right to have an 
Article III judge preside over a civil trial,” Peretz, 501 U.S. at 
936, that was not the case here. Petitioners did not consent to 
trial by the Magistrate Judge in this case, and never waived 
their right to have an Article III judge ultimately pass upon 
their claim that Respondents had not achieved unitary status. 
Under these circumstances, the Eleventh Circuit’s notion that 
the Magistrate Judge’s findings concerning unitary status 
should be adopted conflicts with Petitioners’ right to final 
resolution of their dispute by an Article III judge.

The Eleventh Circuit simply had no basis for 
disregarding the factual findings of the District Court. It does 
not promote judicial economy to require a District Court to 
repeat the evidentiary hearing conducted by a Magistrate 
Judge pursuant to a 28 U.S.C. § 636(b) referral in order for 
its findings of fact to receive the deference it is due under the 
“clearly erroneous” standard. This result is inconsistent with 
the desire for greater judicial efficiency that motivated 
Congress to enact § 636(b), and contradicts the legislative 
scheme, which requires de novo review of dispositive issues 
addressed by the magistrate judge, except when such 
proceedings are conducted with the consent o f the parties. 
To review and correct this fundamental legal error, certiorari 
should be granted.



29

CONCLUSION

For the foregoing reasons, this petition for a writ of 
certiorari should be granted.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense 
& Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 965-2200

Victor A. Bolden 
Counsel of Record 
Jesse M. Furman 
Kenneth D. Heath 
Wiggin & Dana 
One Century Tower 
265 Church Street 
New Haven, CT 06508 
(203) 498-4400

Warren Hope Dawson 
Dawson Law Office 
1467 Tampa Park Plaza 
Tampa, Florida 33605 
(813)221-1800



APPENDIX



la

Opinion of the Court of Appeals

United States Court of Appeals,
Eleventh Circuit.

Andrew L. MANNING, a minor, by his father and next 
friend, Willie MANNING, et ah, Plaintiffs-Appellees,

v.
THE SCHOOL BOARD OF HILLSBOROUGH COUNTY, 

FLORIDA (formerly Board of Public Instruction of 
Hillsborough County, Florida), et ah, Defendants-Appellants.

No. 99-2049.

March 16, 2001.

*929 Walter Crosby Few, Few & Ayala, Thomas M. Gonzalez, 
Arnold B. Corsmeier, Thompson, Sizemore & Gonzalez, P.A., 
Tampa, FL, for Defendants- Appellants.

Victor Allen Bolden, Wiggin & Dana, New Haven, CT, 
Jacqueline A. Berrien, NAACP Legal Defense & Educational 
Fund, Inc., New York City, Warren Hope Dawson, Dawson and 
Griffin, P.A., Tampa, FL, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Middle 
District of Florida.

Before BLACK, FAY and COX, Circuit Judges.

BLACK, Circuit Judge:

Appellants, the School Board of Hillsborough County', 
Florida, and its officials, appeal two orders of the district court 
which subject them to continued supervision under a federal 
desegregation decree. See Manning v. Sch. Bd. o f  Hillsborough



2a

County, Fla., 24 F. Supp. 2d 1277 (M.D. Fla.), mot. to alter or 
amend den., mot. fo r  clarification granted in part, 28 F. Supp. 
2d 1353 (M.D. Fla.1998). Appellants argue that they have 
eliminated the vestiges of past discrimination to the extent 
practicable and have fully complied in good faith with the 
desegregation decree. Accordingly, Appellants claim their 
school district should be declared unitary and federal judicial 
supervision should cease. Conversely, Appellees, a class of 
African-American schoolchildren, contend the school district is 
not unitary and federal judicial oversight o f Appellants remains 
necessary. We hold that Appellants have achieved unitary 
status. We reverse and remand for the district court to enter 
judgment, in accordance with this opinion, declaring the 
Hillsborough County school system to be unitary.

I. BACKGROUND

A. Procedural History

Appellants for many years operated a racially- 
segregated, dual school system. As a result of the Supreme 
Court's landmark decision in Brown v. Board o f  Education o f  
Topeka, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) 
(Brown I), Appellees in 1958 filed this class-action lawsuit on 
behalf of all "minor Negro children and their parents" residing 
in Appellants' school district.1 In 1962, the district court found *

‘The lawsuit was filed in the Southern District of Florida. In 
1962, the Middle District of Florida was created, and the case was 
transferred to that court's docket on November 2, 1962. In a May 
1971 order, the presiding district judge noted that this case was--in 
1971--the oldest active case on the docket of the Middle District of 
Florida. Of course, the same holds true today.

The Honorable Thurgood Marshall, prior to his appointment 
to the Supreme Court, served as one of the attorneys for Appellees.



3a

that Appellants, by operating a segregated school system, had 
violated the Fourteenth Amendment. For the next *930 eight 
and half years, the district court issued various orders as part of 
its efforts to remedy the harm caused by Appellants' 
unconstitutional conduct. See, e.g., Mannings v. Bd. o f  Pub. 
Instruction o f Hillsborough County, Fla., 306 F. Supp. 497 
(M.D. Fla. 1969).

In 1970, our predecessor court examined whether 
Appellants had sufficiently eradicated the illegal dual school 
system such that it could be found "unitary." See Mannings v. 
Bd. o f  Pub. Instruction o f  Hillsborough County, Fla., 427 F.2d 
874 (5th Cir.1970). Relying upon the six so-called Green2

The lead plaintiff was, and still is, Andrew L. Manning; through the 
many years of litigation, his surname has frequently, and incorrectly, 
been spelled "Mannings." The institutional defendant was formerly 
known as the Board of Public Instruction of Hillsborough County. 
The following are the published opinions arising from this case: 
Mannings v. Bd. o f Pub. Instruction o f Hillsborough County, Fla., 
277 F.2d 370 (5th Cir.1960); Mannings v. Bd. o f Pub. Instruction of 
Hillsborough County, Fla., 306 F. Supp. 497 (M.D. Fla. 1969); 
Mannings v. Bd. o f Pub. Instruction o f Hillsborough County, Fla., 
427 F.2d 874 (5th Cir.1970); Mannings v. Sch. Bd. o f Hillsborough 
County, Fla., 796 F. Supp. 1491 (M.D. Fla.1992); Mannings v. Sch. 
Bd. o f Hillsborough County, Fla., 816F. Supp. 714 (M.D. Fla. 1993); 
Mannings v. Sch. Bd. o f Hillsborough County, Fla., 149 F.R.D. 235 
(M.D. Fla. 1993); Mannings v. Sch. Bd. o f Hillsborough County, 
Fla., 149 F.R.D. 237 (M.D. Fla.1993); Mannings v. Sch. Bd. o f 
Hillsborough County, Fla., 851 F. Supp. 436 (M.D. Fla. 1994). 
Additionally, a law review article is devoted exclusively to this 
litigation. See Drew S. Days, III, The Other Desegregation Story: 
Eradicating the Dual School System in Hillsborough County, 
Florida, 61 Fordham L. Rev. 33 (1992).

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



4a

factors, the former Fifth Circuit concluded that, with regard to 
three factors (transportation, extracurricular activities, and 
facilities), Appellants had indeed achieved a unitary school 
district. See Mannings, A l l  F.2d at 878. Nonetheless, based on 
its examination of three other factors (faculty desegregation, 
staff desegregation, and student assignments), the court found 
Appellants had fallen short and had not attained unitary status. 
See id. The case was remanded to the district court with 
instructions to remedy the deficiencies. See id.

After remand, the Supreme Court, in Swann v. 
Charlotte-Mecklenburg Board o f  Education, 402 U.S. 1, 91 S. 
Ct. 1267, 28 L. Ed. 2d 554 (1971), gave firm guidance on a 
district court's equitable power to remedy illegal segregation. 
On May 11, 1971, just 21 days after Swann was decided, the 
district court directed Appellants to submit a comprehensive 
desegregation plan that conformed with the requirements of 
Swann. Thereafter, Appellants submitted such a plan, and the 
district court adopted the plan in its order dated July 2, 1971 
(the July 1971 Order). From 1971 to 1991, the district court's 
supervision of Appellants was governed, with some minor 
modifications, exclusively by the July 1971 Order.3

In 1991, Appellants and Appellees entered into a 
consent decree (1991 Consent Order). The primary reason for 
the 1991 Consent Order was to enable Appellants to reorganize 
the school district, so as to eliminate single grade centers and to 
create middle schools. The 1991 Consent Order, which was to 
be implemented over a 7-year period, did not annul the July 
1971 Order, but merely modified it.

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

3For a summary of the minor modifications, see infra note 6.



5a

recommended denying the motion. The district judge, however, 
deferred ruling on the motion and sua sponte recommitted the 
matter to the magistrate judge to consider whether the school 
district had become unitary, thereby removing the need for 
federal judicial oversight.

In October 1996, the magistrate judge conducted a 7-day 
hearing, at which both sides presented considerable evidence. 
In August 1997, the magistrate judge issued a detailed report 
and recommendation wherein she recommended the district 
court find that Appellants had achieved unitary status and thus 
should be released from federal judicial supervision. Without 
holding an evidentiary hearing, the district judge in a 110-page 
order dated October 26, 1998, rejected in part and adopted in 
part the magistrate judge's report and recommendation. See 
Manning, 24 F. Supp. 2d at 1277-1335. The district judge 
concluded that Appellants had not attained unitary status and 
therefore federal judicial supervision was still warranted.4 See 
Manning, 24 F. Supp. 2d at 1335. *931 Within ten days of the 
order dated October 26,1998, Appellants filed a motion to alter 
or amend judgment pursuant to Fed. R. Civ. P. 59(e). The 
district court, in a 13-page order, denied the motion on 
December 4, 1998. See Manning, 28 F. Supp. 2d at 1361. 
Within 30 days, Appellants filed a notice of appeal as to the 
district judge's orders of October 26, 1998, and December 4, 
1998.

4Before the district court, Appellees also argued that, even if 
the school district were unitary, this status would not constitute a 
"changed circumstance" warranting a modification or vacation of the 
1991 Consent Order. See Manning, 24 F. Supp. 2d at 1287-88 (citing 
Rufo v. Inmates o f Suffolk County Jail, 502 U.S. 367, 112 S. Ct. 748, 
116 L. Ed. 2d 867 (1992)). The district court rejected Appellees' 
argument. See id. at 1288. Since Appellees do not contest this ruling 
on appeal, we do not address it.



6a

B. Facts

To analyze this case that has endured for over 40 years, 
we first summarize the contents of the July 1971 Order and the 
1991 Consent Order, which, with minor modifications, have 
served as the guideposts for Appellants' journey toward a 
unitary school district. Then, we set forth the district court's 
most recent factual findings with respect to Appellants' unitary 
status.

1. July 1971 Order

As previously discussed, the district court ordered 
Appellants in May of 1971 to submit a comprehensive 
desegregation plan. The district court stated that the "primary 
objective" of the plan should be the abolition of segregation. In 
particular, the district court sought to eliminate, at every school, 
racial balances where black students comprised more than 50% 
of the student population. The district court further stated that 
the "most acceptable and desirable" result would be a 
white/black ratio of 86%/14% in senior high schools, 80%/20% 
in junior high schools, and 79%/21% in elementary schools.

The July 1971 Order, which ratified Appellants' 
proposed desegregation plan, dealt primarily with student 
assignments in grades one through twelve. For elementary 
schools, the plan clustered each predominately black school 
with two to five predominantly white schools. The white 
schools would be used for grades one through five and would 
be integrated with black children from "satellite zones"5 who 
had previously attended the black school in the cluster. The 
black school in each cluster would be used as a sixth-grade

5A satellite zone is an area not contiguous with the main 
attendance zone for the school.



7a

center and would be integrated with white children who had 
previously attended the white schools in the cluster.

For junior high schools, each black school would be 
clustered with one to three white schools. The black schools 
would be used for seventh grade, and the white schools would 
be used for eighth and ninth grades. Again, the schools would 
be integrated with students from satellite zones. For senior high 
schools, the two black schools would be closed, but their 
facilities would be used for junior high schools. Through a 
series o f re-zoning and satellite busing measures, the white high 
schools would be integrated.

With regard to faculty and staff, the district court had 
previously entered an order on August 25, 1970. In the July 
1971 Order, the court found that no additional measures were 
necessary, and it directed Appellants to continue to abide by the 
August 25, 1970, order. With respect to transportation, 
facilities, and extracurricular activities, the July 1971 Order 
directed Appellants to comply with all previous orders. The 
order also mandated that all operations relating to these areas 
should be conducted in a non- discriminatory manner and 
should be regularly re-examined by Appellants.

The July 1971 Order also remarked on four other topics:
(1) maj ority to minority transfers, (2) other transfer rules, (3) the 
bi-racial committee, and (4) approval o f site locations. 
Specifically, the district court stated, "Each o f these has been 
required by previous orders of this Court. Some of them may 
not be required if [Appellants’] plan is effectuated and 
accomplished." Nevertheless, the district court stated that it 
was "retaining jurisdiction *932 and [would] require the 
continuation of all o f these procedures to be available and used 
as necessary."



8a

Attached to the July 1971 Order were two exhibits 
which explained the bi- racial committee, majority-to-minority 
transfers, and other transfer rules. The bi-racial committee was 
to serve as an advisory body on a number o f issues and was to 
consist of ten members, with Appellants and Appellees each 
selecting five members. In some instances, the committee was 
to receive reports about students transferring from their 
assigned schools. In other instances, Appellants were barred 
from approving student transfers before considering a 
recommendation from the committee.

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

Majority to minority transfer-Any student shall be 
permitted to transfer from a school in which his race is 
in the majority in order to attend the closest school to 
his residence in which his race is in the minority.

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

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

Transportation will be provided by the School Board in- 
service or in kind to the school to which the transfer is 
made if  that school is more than two miles from the 
home.



9a

In conclusion, the July 1971 Order stated that 
Appellants' desegregation plan "fully complie[d] with the 
[district] [cjourt's order of May 11, 1971," and that it would 
"result in the establishment of a unitary school system in 
Hillsborough County, Florida." The July 1971 Order noted, 
however, that Appellants had a "continuing responsibility" to 
ensure the plan would be effectuated. Moreover, each year 
following the implementation of the July 1971 Order, 
Appellants filed two reports per year with the district court and 
provided copies to Appellees. Lastly, the July 1971 Order 
retained jurisdiction in the district court for "such further action 
as may be necessary and required."

2. 1991 Consent Order

Between 1971 and 1991, the modifications to the July 
1971 Order were minor.6 By 1991, however, Appellants had 
determined, based upon a comprehensive study, that the school 
district would benefit if  middle schools (grades 6-8) were 
established. To accomplish this, the July 1971 Order had to be 
modified, because that order had relied extensively on single­
grade centers (grades 6 and 7) to desegregate the school district. 
Thus, Appellants entered into negotiations with Appellees, and 
the product o f those negotiations was the 1991 Consent Order.

6The modifications included, inter alia: changes in transfer 
rules for children of school employees; approval of a new high 
school site; changes in academic transfer rules; the closure of 
certain schools; and the creation of magnet schools. Perhaps, the 
most significant modification dealt with Lee Elementary School, 
which by 1974 had a black population in excess of 50%. To correct 
this imbalance, Appellants, pursuant to the district court's order, 
converted Lee to a sixth-grade center and transferred the former Lee 
students (first through fifth graders) to seven other elementary 
schools.



10a

The centerpiece of the 1991 Consent Order was the 
Middle School Task Force Report 3 of July 1991 (hereinafter 
"Task Force Report"), which the district court incorporated into 
the consent order.7 The Task Force Report was presented to the 
school board by a 12-person committee. This committee 
included Mr. Henry Carley, *933 President of the Tampa 
Branch of the NAACP. In addition, a legal committee, 
consisting of, inter alia, Mr. A1 Davis of the NAACP, reviewed 
the Task Force Report, and Appellees’ own desegregation 
expert, Dr. Leonard Stevens, was involved in shaping the Task 
Force Report. Furthermore, the Task Force Report included two 
separate position statements prepared by various African- 
American community groups (Howard W. Blake Alumni 
Group, Coalition of African American Organizations, Greater 
Tampa Urban League, Inc., and Beta Sigma Zeta Chapter of 
Zeta Phi Beta Sorority). In sum, as the 1991 Consent Order 
explained, the Task Force Report was the result of extensive 
discussions" between Appellants and Appellees, and the 
discussions were designed to "to ensure . . . that plans for the 
implementation of the [Task Force Report] were formulated in 
a manner that addressed the interests and concerns of 
[Appellees]."

The Task Force Report proposed substantial changes to 
the structure of the school system. Under the July 1971 Order, 
the school system generally had consisted of five tiers: 
elementary schools (grades K-5), sixth-grade centers, seventh- 
grade centers, junior high schools (grades 8-9), and high schools 
(grades 10-12). In contrast, the Task Force Report called for a 
three-tier school system: elementary schools (grades K-5); 
middle schools (grades 6-8); and high schools (grades 9-12).

7The parties and the district court use interchangeably the 
terms "Task Force Report" and "Middle School Plan." For the sake 
of simplicity, we use solely the term Task Force Report.



11a

This new structure would be achieved through a so-called 
"cluster model," under which 17 clusters would be formed. For 
each cluster, the high school would serve as the "basic unit" and 
its students would be drawn from "feeder" middle and 
elementary schools. The Task Force Report estimated that it 
would take five to seven years to implement the cluster model.

The cluster model proposed by Task Force Report was 
undoubtedly the most substantial change to the structure of the 
school system since the July 1971 Order. The objective of July 
1971 Order had been to desegregate the school system. By 
contrast, one of the primary objectives of the Task Force Report 
was "to maintain a desegregated school system." (emphasis 
added). In an apparent attempt to meet this objective, the 1991 
Consent Order directed Appellants "to minimize (to the extent 
practicable) the number of schools which deviate from the 
system-wide student enrollment [race] ratios." Moreover, the 
1991 Consent Order assumed that intervening demographic 
changes might necessitate future modifications in student 
assignments in order to maintain a desegregated school district.8

To further the goal of maintaining desired race ratios, 
the Task Force Report attempted to project the race ratios at 
each school after the cluster plan's implementation. In 
summary, the Task Force Report predicted:

This assumption was wrong as a matter of law. External 
factors which are not the result of segregation and are beyond a 
school board's control should not be part of the remedial calculus 
when shaping a federal desegregation decree. See Missouri v. 
Jenkins, 515 U.S. 70, 102, 115 S. Ct. 2038, 2055-56, 132 L. Ed. 2d 
63 (1995) (citing Pasadena City Bd. ofEduc. v. Spangler, 427 U.S 
424, 434, 96 S. Ct. 2697, 2703-04, 49 L. Ed. 2d 599 (1976)); infra 
Part II.B.l.



12a

The number of schools reflecting a ten or higher percent 
race ratio variance [from the recommended ratio of 
20/80%] will increase from 36 to 46. The plan also 
increases the number of schools from 56 to 72 that will 
have an almost perfectly balanced race ratio with a 
student variance of five percent or less from the 
recommended ratio of 20/80% ratio.

Appendix 1 of the Task Force Report provided more 
detail as to the projected racial balance at each school. Fourteen 
schools were projected to have a 40% or greater black 
population,9 and an additional four *934 schools were 
projected to have a 39% black population.10 * These projections, 
as part of the Task Force Report, were incorporated into the 
1991 Consent Order—a consent decree to which Appellees were 
parties.

Along with proj ecting race ratios, the Task Force Report 
instituted a variety of programs designed to maintain a 
desegregated school system. For example, the report 
implemented magnet programs,11 which were designed in part 
"to reduce minority isolation" and "to promote desegregation in

9The 14 schools, with their projected race ratios, were as 
follows: Lomax (94%), Edison (64%), Sulphur Springs (59%), 
Graham (58%), Oak Park (58%), Cleveland (50%), Franklin (47%), 
Sligh (46%), Lockhart (45%), Palm River (41%), West Tampa 
(41%), Shaw (41%), B.T. Washington (40%), Witter (40%).

10The four schools were Foster, Bing, Dowdell, and Just.

“The magnet programs were intended to supplement a 
traditional curriculum with a focus on special "themes", such as 
computers and technology or visual and performing arts.



13a

schools."12 The report also suggested a multi-cultural 
curriculum for students in all grades and instructional sessions 
to enable staff to deal with diverse populations.

One omission in the Task Force Report, however, is 
particularly noteworthy in light of subsequent events: maj ority- 
to-minority transfers. Although they had been discussed briefly 
in the July 1971 Order, majority-to-minority transfers were not 
mentioned once in the 37-page Task Force Report, nor in the 8 
attached appendices, nor in the 1991 Consent Order. Dr. 
Stevens-Appellees' desegregation expert who helped shape the 
Task Force Report—admitted at the 1996 evidentiary' hearing 
that majority-to-minority transfers would have been 
insignificant in alleviating the racial imbalances in the school 
district.

3. Factual Findings

The magistrate judge, in her 1997 report and 
recommendation, structured her factual findings around the six 
Green factors,13 plus a seventh factor, quality o f education, 
which has been used by some courts to evaluate a school 
district's unitary status. See, e.g., Mills v. Freeman, 942 F. 
Supp. 1449, 1460 (N.D. Ga.1996), affd, 118 F.3d 727 (11th 
Cir. 1997). In addition, the magistrate judge made factual 
findings regarding Appellants' good-faith compliance with past 
desegregation decrees, as required by Board o f  Education o f  
Oklahoma City v. Dowell, 498 U.S. 237, 250, 111 S. Ct. 630,

12In addition, the "racial composition targets for magnet 
school populations [was] not [to] exceed 40% black."

13Those six factors are student assignments, faculty, staff, 
transportation, extracurricular activities, and facilities and resource 
allocation. See Green, 391 U.S. at 435, 88 S. Ct. at 1693.



14a

638,112 L. Ed. 2d 715 (1991), and its progeny. Based on all of 
these findings, the magistrate judge recommended the school 
district be declared unitary in all respects and that federal 
judicial supervision of the school district be terminated.

The district judge found that the magistrate judge's 
report and recommendation was "comprehensive" and "agree[d] 
with a majority of the [magistrate [jjudge’s analysis." 
Manning, 24 F. Supp. 2d at 1287. For six of the seven factors 
(faculty, staff, transportation, extracurricular activities, facilities 
and resource allocation, and quality of education), the district 
judge adopted most, if  not all, of the magistrate judge's 
findings.14 See id. at 1316-34. In their brief to this Court, 
Appellees do not contest the findings related to these six 
factors, and thus further elaboration is unnecessary except to 
emphasize that the findings support a declaration o f unitary 
status.

With regard to the remaining Green factor (student 
assignments), the district judge expressed some disagreement 
with *935 the magistrate judge. The district judge also differed 
with the magistrate judge's finding on Appellants' good-faith 
compliance. As we discuss in Part II, the district judge used an 
incorrect legal standard. As a result, the district judge's legal 
conclusion, though based mostly upon the magistrate judge's 
factual findings, was erroneous. To help illuminate our 
discussion in Part II, we narrate below the magistrate judge's 
factual findings related to student assignments and Appellants'

14Regarding these six factors, the district judge's order is less 
than clear. After a thorough review, however, we are convinced that 
the district judge overruled most, and possibly all, of Appellees' 
objections to the magistrate judge's report and recommendation. The 
objections sustained by the district judge, if any, are inconsequential 
to our ultimate holding in this case.



15a

good faith, and we highlight, when necessary, particular 
findings adopted by the district judge. We also note those few 
areas where the district judge rejected the factual findings of the 
magistrate judge.

a. Student Assignments

As of the 1995-96 school year, the Hillsborough County 
school district consisted of approximately 120,000 students, 108 
elementary schools, 27 junior high schools, and 15 senior high 
schools. Relying on a standard proposed by Appellees' and 
Appellants' experts, the magistrate judge designated any school 
with a black/white ratio varying plus or minus 20 points from 
a 20/80 ratio as being "racially identifiable" or "racially 
imbalanced."15 It was undisputed that, by the 1971-72 school 
year, all schools were desegregated. Furthermore, the evidence 
showed that, at the time of the 1996 evidentiary hearing, 
approximately 90% of the schools were not racially identifiable. 
Appellees, however, identified 17 schools as racially 
identifiable and made these schools the focus of the 1996 
evidentiary hearing.16 Ironically, of these 17 schools, 9 were

15Since the parties agree on what constitutes a racially 
identifiable school, we shall accept their definition for purposes of 
this case and this case only. We pass no judgment on the correctness 
of this definition.

,6Both the district judge and the magistrate judge referred to
16 schools. A review of the Joint Pre-Evidentiary Hearing Statement 
and the report by Appellees' expert reveals that Appellees challenged 
the racial identifiability of 17 schools. Both the district judge and the 
magistrate judge omitted Mort Elementary from their findings. This 
oversight, however, is of no significance. The following are the 
percentages of black students at each of these 17 challenged schools 
during the 1972-73 and 1995-96 school years:



16a

among the 14 schools that the Task Force Report projected 
would have a 40% or greater black population, and two were 
among the four schools that the Task Force Report projected 
would have a 39% black population.17 Immediately after the 
July 1971 Order was implemented, all of these schools became 
*936 racially balanced.18

The critical factual question at the evidentiary hearing 
was whether the racial imbalances at the 17 schools were 
caused by Appellants' past de jure  segregation (or other 11

School
Percentage of Black 

Students, 1972-73
Percentage of Black 
Students, 1995-96

Robles 24% 91%
Edison 36% 77%
Sulphur Springs 19% 74%
Oak Park 23% 69%
Graham 35% 67%
Foster 21% 61%
Cleveland 26% 58%
Shaw 15% 57%
Witter 18% 54%
Cahoon 21% 53%
Clair Mel 18% 49%
West Tampa 14% 47%
DeSoto 35% 43%
Mort N/A 43%
Van Buren 17% 53%
Sligh 20% 50%
Dowdell 14% 48%

11 Compare supra notes 9, 10 with supra note 16.

I8One school, Mort, was not listed in the 1971 report 
submitted by Appellants and thus presumably did not exist at that 
time.



17a

discriminatory conduct), or whether, instead, the racial 
imbalances were caused by nondiscriminatory factors and 
circumstances. In a joint statement submitted prior to the 
evidentiary hearing, Appellants contended that demographic 
shifts had caused the schools to become racially identifiable. In 
the same joint statement, Appellees did not directly rebut 
Appellants' contention, but instead argued that "[djemographic 
change alone does not account for the racial identifiability in 
the Hillsborough County school system." (emphasis added).

To resolve their factual dispute, the parties presented 
considerable evidence to the magistrate judge, including, inter 
alia, reports on attendance boundaries, demographic reports, 
and expert testimony. We need not repeat all this evidence 
here, as it is fully set forth in the opinion of the district court. 
See Manning, 24 F. Supp. 2d at 1290-1312. Instead, we 
compare the findings of the magistrate judge to those o f the 
district judge.

The magistrate judge, in her report and recommendation, 
recounted the expert testimony of Dr. David Armor, one of 
Appellants' experts—testimony that the magistrate judge 
personally observed. Dr. Armor explained that he reviewed the 
extensive demographic data contained in a report by Dr. 
W.A.V. Clark, another of Appellants' experts. Based on this 
evidence, Dr. Armor opined on the witness stand that "none of 
the schools that were currently imbalanced . .  . were caused by 
[Appellants'] action[s,]" but rather such imbalances "were 
caused by demographics." The magistrate judge also reviewed 
the testimony of Dr. Fred Shelley, Appellees' demographic 
expert-once again, testimony that the magistrate judge 
personally observed. Dr. Shelley did not conduct his own 
demographic study, but rather relied on the data supplied by Dr. 
Clark (Appellants' expert). Dr. Shelley opined "that it is 
perhaps difficult to conclude that [the] increase in racial 
imbalance is attributable solely to the processes o f natural



18a

demographic change." In the end, the magistrate judge agreed 
with Dr. Armor and found that demographic change is the 
"most likely explanation" for the racial imbalances. The 
magistrate judge faulted Dr. Shelley for not providing an 
alternative explanation for the racial imbalances.19

The district judge, though not observing any of the 
testimony, agreed for the most part with the findings of the 
magistrate judge. In conformity with Dr. Armor's opinion (and 
the magistrate judge's finding), the district judge found that 
"[tjhere [was] no indication that the racial identity of the 
schools in Hillsborough County has been deliberately caused by 
segregative policies or practices by [Appellants]" and that 
"based on the totality of the evidence, a shift in demographics 
[was] a substantial cause of the racial identifiability in 
Hillsborough *937 County's schools." Manning, 24 F. Supp.

19In his report, Dr. Shelley did not attempt to link the present 
racial imbalances with past de jure segregation, but rather merely 
tried to prove that demographics alone did not cause the upsurge in 
racially identifiable schools. At the evidentiary hearing, when asked 
how his report differed from Dr. Clark's report, Dr. Shelley 
responded:

My reaction to the report was that, while I thought the 
demographic analysis was very good, what I felt was missing 
in the report was how to reason from the analysis of the 
demographic change that was undertaken to a conclusion 
that demographic change was the sole cause of the observed 
racial imbalance in the public schools in Hillsborough 
County.

Tr. of Evidentiary Hearing on October 24, 1996, Vol. 4, at 66 
(emphasis added). Dr. Shelley expressed doubts that "one can 
conclude without ambiguity that [the racial] imbalance is caused only 
by natural demographic changes." Id. at 66-67 (emphasis added).



19a

2d at 1303, 1310. The district judge likewise was unable to 
cite, in either of her two orders, any independent demographic 
evidence put forward by Appellees or an alternative explanation 
proffered by Dr. Shelley as to the cause of the racial imbalances.

The district judge seemed to have adopted in toto 
Appellants' theory of the case (and the magistrate judge’s 
finding). As the district judge stated time and time again, a shift 
in demographics was a substantial or significant cause o f the 
racial imbalances, and Appellants did not deliberately cause the 
racial imbalances. See id. at 1293 (stating "that the racial 
imbalances in the schools [were] not the result of a deliberate 
attempt by [Appellants] to affect or alter demographic patterns 
to affect the racial composition of the schools"); id. at 1311 
(finding "the evidence presented by the parties establishes that 
a shift in demographics played a significant role in the racial 
compositions of the schools" and that Appellants had "not 
'affirmatively' exacerbated racial imbalances"); Manning, 28 F. 
Supp. 2d at 1356 (stating that "demographics have played a 
significant role in Hillsborough County"). The district judge 
even agreed that " [i]t [was] probable that" the 17 challenged 
"schools would have become racially imbalanced regardless of 
[Appellants'] efforts." Manning, 24 F. Supp. 2d at 1303. Even 
Appellees' own expert, according to the district judge, "agreed 
that demographics have played a significant role in 
Hillsborough County." Id. Despite all o f the evidence showing 
that demographics, and not de jure  segregation, caused the 
racial imbalances, the district judge ultimately declined to find 
the school district unitary as to student assignments. The 
district judge declined to so find because she could not conclude 
that demographics were the sole cause of the racial imbalances. 
See id. at 1302. In the district judge's view, therefore, the legal 
presumption remained that any racial imbalances were the result 
of the prior de jure  segregation. See Manning, 28 F. Supp. 2d 
at 1357.



20a

Finally, we note that the district judge's findings were 
inconsistent and difficult to follow. For example, the district 
judge was concerned by Dr. Clark's data, especially with regard 
to its reliability.20 See Manning, 24 F. Supp. 2d at 1298-1300. 
Nevertheless, the district judge never stated that the data—which 
both sides relied upon—was so unreliable so as to undermine her 
finding that "a shift in demographics [was] a substantial cause 
of the racial identifiability in Hillsborough County's schools." 
Id. at 1303. Additionally, the district judge remarked that she 
was "not convinced that a shift in demographics explained] the 
racial imbalance in the Hillsborough County school system." 
Manning, 28 F. Supp. 2d at 1356; see also Manning, 24 F. 
Supp. 2d at 1293. Yet, in the very same sentence, the district 
judge also stated that "demographics have played a significant 
role in Hillsborough County." Manning, 28 F. Supp. 2d at 
1356. In spite of these inconsistencies, we are convinced that

20In particular, the district judge noted the following:

[Appellants'] statistics encompass a larger segment of the 
population than is useful to explain the deviations in the 
racial compositions of the unbalanced schools. Specifically, 
[Appellants] rely on Dr. Clark's use of school-aged children 
from ages 0-17 to explain enrollment ratios at the elementary 
schools; however, almost one-half of the children included 
in this group would not, in fact, be attending an elementary 
school. Moreover, while a few blocks in an attendance zone 
may reflect black school-age populations as high as 95%, 
those few blocks only represent a small proportion of the 
entire attendance zone. Finally, Dr. Clark's analysis does not 
address [Appellants'] initial decisions to draw attendance 
zones, decisions not to act when it was apparent that those 
zones were inappropriate, or other School Board decisions, 
such as, location of new schools, or implementation (or lack 
thereof) of desegregation tools.

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



21a

the district judge agreed with the magistrate judge and found 
that shifting demographics was a substantial *938 cause of the 
racial imbalances in Appellants' student assignments and that 
Appellants did not deliberately cause the racial imbalances.

b. Good-Faith Compliance

The magistrate judge concluded that Appellants had 
complied in good faith with past federal desegregation decrees, 
as required by Dowell and its progeny. 498 U.S. at 249-50,111 
S. Ct. at 638. The magistrate judge's conclusion was based 
largely on the testimony given during the 7-day evidentiary 
hearing by a variety of witnesses, including inter alia: Dr. 
Walter Sickles, the school superintendent from 1989 to 1996; 
Dr. Earl Lennard, the school superintendent as of 1996; five 
members of the school board; Doris Reddick, the chair of the 
school board; Andrew Manning, the lead plaintiff in the case 
since its inception; and Joanna Tokley, the president and CEO 
of the Urban League.

Dr. Sickles, who had been an employee of the school 
board since 1969, testified that he believed the school district 
was unitary in the early 1990’s. Dr. Sickles did not seek a 
declaration of unitary’ status at that time because he believed 
Appellees would have opposed and impeded his effort to 
establish middle schools, which was his top priority. Instead, 
Dr. Sickles sought Appellees' cooperation in establishing 
middle schools via the Task Force Report and the 1991 Consent 
Order. Dr. Lennard, an employee of the school board since 
1964, testified that he felt a "moral and legal obligation on the 
school system to continue a desegregated school system." Five 
school board members "expressed no misgivings about . . .  the 
intent and ability of the School Board to continue a 
desegregated school system while receiving input from all 
members of the community."



22a

Some witnesses "voice[d] concern about what might 
happen in the future if [c]ourt supervision ended." For 
instance, Ms. Reddick, the chair of the school board, testified 
against a finding of unitary status. Nevertheless, when asked by 
Appellees' counsel what would happen if  the school district 
were found unitary, Ms. Reddick asserted, "[Wje're going to 
guarantee that students will receive equal education."

The magistrate judge found that for more than 25 years 
Appellants had complied with the court's orders to desegregate 
and that not once had Appellants been found in violation of any 
court order. In addition, the magistrate judge noted that 
Appellants had "regularly conferred [with Appellees] . . .  to 
ensure that the school system was moving forwards, not 
backwards, toward compliance with the [cjourt's orders." 
Accordingly, "the long history of compliance with the [cjourt's 
orders" outweighed the "opinions and the anecdotal evidence 
offered by [Appellees]." In sum, the magistrate judge 
concluded, "The testimony o f . . .  most School Board members, 
as well as the current superintendent and those responsible for 
various facets o f school operation[,] demonstrates that 
[Appellants] have accepted the principle of racial equality and 
will not revert back to a dual school system."

The district judge, however, did not adopt this finding 
of good faith. Since the district judge did not observe any o f the 
testimony from the evidentiary hearing, naturally she could not 
evaluate the credibility of the witnesses. Instead, the district 
judge's finding of bad faith centered upon two interrelated areas 
of concern: Appellants' "apathy" and the lack of a majority-to- 
minority (MTM) transfer program.21 See Manning, 24 F. Supp.

21The district judge and the magistrate judge also extensively 
discussed some ex parte communications between a previous 
presiding judge and school officials. During the evidentiary hearing,



23a

2d at 1293, 1312-14.

*939 With regard to Appellants' "apathy," the district 
judge faulted Appellants for not "utilizing] all available 
techniques [to desegregate] to the maximum extent practicable" 
and for not demonstrating "that they [were] willing to 
aggressively desegregate the school district to the maximum

Dr. John Heur, a retired school board official who had been 
responsible for implementing the July 1971 Order, testified that such 
communications occurred between 1972 and 1974. The magistrate 
judge found that "[t]hese ex parte conversations, while unfortunate, 
were not initiated by [Appellants] and do not demonstrate a lack of 
good faith." The district judge agreed, finding that, "standing alone, 
the ex parte communications [did] not evidence bad faith." Manning, 
24 F. Supp. 2d at 1315. Additionally, Part II of the October 26, 1998, 
opinion is titled "Good- Faith" and discusses Appellants' magnet 
programs. See Id. at 1314-15. This portion of the opinion is very 
confusing. It lists the arguments advanced by Appellees regarding 
magnet schools, but the opinion never states whether it is adopting 
those arguments. In the opinion of December 4, 1998, the district 
judge faults Appellants for their failure to develop magnet schools 
and programs, except for one program at Tampa Bay Technical High 
School. See Manning, 28 F. Supp. 2d at 1359. But neither opinion 
ever explains how Appellants' actions with respect to magnet 
programs demonstrated bad faith.

We therefore conclude that the district judge did not base her 
finding of bad faith upon Appellants' magnet programs. Even if the 
district judge did, in fact, base her finding of bad faith on Appellants' 
magnet programs, such a finding would be clearly erroneous. In 
1990, Appellants moved to designate a magnet school, but Appellees 
opposed the motion. In successfully opposing the motion, Appellees 
argued that "[t]he basic structure of desegregation in [Appellants'] 
school system has remained constant and effective since 1971," and 
that a magnet program would "introduce more uncertainty about 
whether schools will remain desegregated."



24a

extent practicable." Id. at 1312,1335. Additionally, the district 
judge spoke of missed opportunities and a failure to take 
"affirmative steps . . .  to be released from the [cjourt's 
supervision." Id. at 1312; accord Manning, 28 F. Supp. 2d at 
1359 (citing Lockett v. Bd. ofEduc. o f Muscogee Sch. Dist., 92 
F.3d 1092, 1099 (11th Cir.1996) {Lockett I)). Nevertheless, 
after a request by Appellants to clarify exactly what steps 
should be taken to desegregate to the maximum extent 
practicable, see id. at 1355, the district judge declined to give 
any specifics.

Related to the issue of apathy is the inaction 
demonstrated by Appellants in their MTM program. As 
previously noted, the July 1971 Order directed the 
establishment of an MTM program. See supra Part I.B.l. 
Under this program, a student who attended a school where his 
race was the majority would be permitted to transfer to a school 
where his race was the minority. At the evidentiary hearing, Dr. 
John Miliziano, who was Appellants' "in-house desegregation 
expert," expressed ignorance about the requirement to 
implement an MTM program:

I dealt with the Biracial Committee for many years, and 
no member of the committee ever brought that up. And 
to tell you the truth, I thought it was one of those things 
that was considered by the court and it was never meant 
to apply. It wasn't until recently that I, a person who has 
spent many, many years in dealing with the court order, 
maybe it's stupidity on my part, but I didn't even know 
that this hidden clause-this clause, not hidden, but this 
clause in the [July 1971 Order] meant really anything.

Manning, 24 F. Supp. 2d at 1313. The evidence also showed 
that, from 1977 to 1996, no student had ever applied for an 
MTM transfer, and Appellants had not made any effort to



25a

publicize or market the MTM program. See id. at 1314; 
Manning, 28 F. Supp. 2d at 1359.

While faulting Appellants on the MTM program, the 
district judge acknowledged that the July 1971 Order "did not 
specifically direct [Appellants] to market the [MTM] program." 
Manning, 24 F. Supp. 2d at 1314. Furthermore, the district 
judge noted (and did not dispute) that no member of the Bi- 
Racial Committee and no representative of Appellees had 
complained, prior to the mid- 1990's, about the non-availability 
of an MTM program. See id. at 1313 (quoting testimony of Dr. 
Miliziano). The district judge also found that when Appellees 
did raise the lack of an effective MTM program, Appellants 
announced *940 the program "to the [school] district as a 
whole and . . . took action to publish information about the 
program." Id. at 1312.

Although the district judge stated that an MTM program 
is an "indispensable remedy" and a "useful part o f every 
desegregation plan,"22 id. at 1314, the district judge did not 
explain why this particular MTM program was needed to 
desegregate the Hillsborough County school district. In fact, as 
previously mentioned, Dr. Stevens-Appellees' expert who was 
involved in the negotiations that led to the 1991 Consent Order- 
-conceded that an MTM program would not significantly 
impact the race ratios at the schools Appellees were challenging 
as racially imbalanced. Furthermore, the Task Force Report and 
the 1991 Consent Order (both of which were approved by the

22The district judge lifted this language from the Supreme 
Court's opinion in Swuwz, 402 U.S. at 26-27,91 S.Ct.atl281. In the 
very same opinion, however, the Supreme Court warned that "[n]o 
per se rule can adequately embrace all the difficulties of reconciling 
the competing interests involved [in desegregating schools]." Id. at 
26,91 S. Ct. at 1281.



26a

district judge) failed to even mention the MTM program. 
Lastly, notwithstanding the criticism of the MTM program, the 
district judge spoke favorably of Appellants' overall 
desegregation efforts. See, e.g., id. at 1287 (stating that 
" [undoubtedly, [Appellants'] desegregation efforts demonstrate 
significant success"); id. at 1311 (stating Appellants "deserve 
acknowledgment for their desegregation efforts thus far"); id. at 
1312 (noting Appellants "have been relatively successful in 
implementing desegregation techniques"); id. at 1325 (finding 
Appellants had acted in good faith with respect to faculty 
desegregation and commending Appellants for taking 
recommendations from the Minority Recruitment Task Force).

II. DISCUSSION

A. Standard o f  Review

Where the relief sought in the district court is the 
dissolution of an injunction, the order of the district court is 
subject to a mixed standard of review.23 We review for abuse 
of discretion the failure to dissolve an injunction as required by 
law. See Wilson v. Minor, 220 F.3d 1297, 1301 (11th 
Cir.2000). The district court's application of law is subject to

23 We raised suasponte whether appellate jurisdiction existed 
in this case and requested briefs from the parties. Since this is an 
appeal of an interlocutory order of the district court refusing to 
dissolve an injunction, we do possess jurisdiction. See 28 U.S.C. § 
1292(a)(1). We also raised sua sponte whether the notice of appeal 
was timely filed. Appellants timely filed in the district court a motion 
to alter or amend judgment under Fed. R. Civ. P. 59(e). As such, 
Appellants could file their appeal until 3 0 days after the district court 
ruled on the Rule 59(e) motion. See Fed. R. App. P. 4(a)(4)(iv). 
Since the Appellants complied with this time limit, we conclude 
Appellants timely filed their notice of appeal. Thus, we may hear 
this appeal.



27a

de novo review, while its findings of fact are subject to a clearly 
erroneous standard of review under Fed. R. Civ. P. 52(a). See 
Sierra Club v. Martin, 110 F.3d 1551, 1554 (11th Cir.1997) 
(quoting SunAmerica Corp. v. Sun Life Assurance Co. o f  Can., 
77F.3d 1325,1333 (11th Cir. 1996)). A declaration o f a school 
system's unitary status is a finding of fact and thus falls under 
the clearly erroneous standard of Rule 52(a). See Lockett v. Bd. 
ofEduc. o f  Muscogee County Sch. Dist., I l l  F.3d 839, 841-42 
(11th Cir.1997) (Lockett 77); Jacksonville Branch, NAACP v. 
Duval County Sch. Bd., 883 F.2d 945,952 n. 3 (11th Cir. 1989). 
Under this standard of review, "[wjhere there axe two 
permissible views of the evidence, the [district court]'s choice 
between them cannot be clearly erroneous." Lockett II, 111 
F.3d at 842; accord Anderson v. City o f  Bessemer City, 470 
U.S. 564, 574,105 S. Ct. 1504,1511, 84 L. Ed. 2d 518 (1985). 
But where a district court applies an incorrect legal standard 
which "taints" or "infects" its findings of facts, such findings 
"lose the insulation of *941 [Rule] 52(a) and judgment based 
thereon cannot stand." Corley v. Jackson Police Dept., 566 
F.2d 994,1001 (5th Cir. 1978) (internal quotations and citation 
omitted);24 accord Bigge v. Albertsons, Inc., 894 F.2d 1497, 
1502- 03 (11th Cir. 1990); Harris v. Birmingham Bd. ofEduc., 
712F.2d 1377,1381 (11th Cir. 1983); Z/wco/h v. B d  o f  Regents 
ofUniv. Sys. ofGa., 697 F.2d 928, 938-39 (11th Cir. 1983); see 
also Solomon v. Liberty County Comm'rs, 22 I F . 3d 1218,1227 
(11th Cir.2000) (en banc) (stating "Rule 52(a) does not inhibit 
an appellate court's power to correct errors of law").

B. Analysis

24In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th 
Cir. 1981) (en banc), this Court adopted as binding precedent all 
decisions of the former Fifth Circuit handed down prior to the close 
of business on September 30, 1981.



28a

1. General Principles

Before analyzing the case before us, it is important to 
recall some general principles. In Brown I, the Supreme Court 
held that de jure  racial segregation practiced by school districts 
violates the Fourteenth Amendment. See Lockett II, 111 F.3d 
at 842 (citing Brown I, 347 U.S. at 495, 74 S. Ct. at 692). To 
remedy the illegal conduct, the Supreme Court ordered federal 
district courts to supervise local officials in desegregating 
school systems. See id. (citing Brown v. Bd. ofEduc., 349 U.S. 
294,301, 75 S. Ct. 753,757,99 L.Ed. 1083 (1955) (Brown II)). 
Federal judicial supervision of local officials, however, was 
intended to be a temporary measure. See id. (citing Bd. ofEduc. 
v. Dowell, 498 U.S. 237, 247, 111 S. Ct. 630, 637, 112 L. Ed. 
2d 715 (1991)).

A desegregation order is remedial in nature, for it is the 
means by which victims of discriminatory conduct are restored 
to the position they would have occupied in the absence o f such 
conduct. See Missouri v. Jenkins, 515 U.S. 70, 87, 115 S. Ct. 
2038,2048,132 L. Ed. 2d 63 (1995) (citing Milliken v. Bradley, 
418 U.S. 717, 746-47, 94 S. Ct. 3112, 3128,41 L. Ed. 2d 1069 
(1974)). The purpose of federal supervision is not to maintain 
a desired racial mix at a school. See Pasadena City Bd. o f  
Educ. v. Spangler, 427 U.S. 424,434-37, 96 S. Ct. 2697,2704- 
05, 49 L. Ed. 2d 599 (1976); see also Freeman v. Pitts, 503 
U.S. 467,494, 112S.Ct. 1430,1447, 118 L. Ed. 2d 108 (1992) 
(noting that "jrjacial balance is not to be achieved for its own 
sake"). Rather, a federal court may insist upon a racially 
balanced school only in those situations where a constitutional 
violation has caused the school to become racially imbalanced. 
See id. at 494, 112 S. Ct. at 1447. As the Supreme Court 
instructed 30 years ago, "[I]n the absence of a showing that 
either the school authorities or some other agency of the State 
has deliberately attempted to fix or alter demographic patterns 
to affect the racial composition of the schools, further



29a

intervention by a district court should not be necessary." 
Swann, 402 U.S. at 31-32, 91 S. Ct. at 1283-83. Put simply, a 
school board has no obligation to remedy racial imbalances 
caused by external factors, such as demographic shifts, which 
are not the result of segregation and are beyond the board's 
control. See Jenkins, 515 U.S. at 102, 115 S. Ct. at 2055-56 
(citing Spangler, 427 U.S. at 434,96 S. Ct. at 2703-04; Swann, 
402 U.S. at 22, 91 S. Ct. at 1279).

The ultimate objective of any desegregation order is the 
"restoration o f state and local authorities to the control of a 
school system that is operating in compliance with the 
Constitution."25 *942 Id. at 89, 115 S. Ct. at 2049 (internal 
quotations and citation omitted). To guide district courts in 
assessing when it is appropriate to restore local control, the

25Local control is complementary, not contradictory, to the 
goal of eradicating illegal discrimination from our nation's schools. 
The Supreme Court has spoken to this principle:

Returning schools to the control of local authorities at the 
earliest practicable date is essential to restore their true 
accountability in our governmental system. When the school 
district and all state entities participating with it in operating 
the schools make decisions in the absence of judicial 
supervision, they can be held accountable to the citizenry, to 
the political process, and to the courts in the ordinary course. 
. . . [I]t must be acknowledged that the potential for 
discrimination and racial hostility is still present in our 
country, and its manifestations may emerge in new and 
subtle forms after the effects of de jure segregation have 
been eliminated. It is the duty of the State and its 
subdivisions to ensure that such forces do not shape or 
control the policies of its school systems. Where control 
lies, so too does responsibility.

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



30a

concept of a "unitary" school system has evolved in federal 
jurisprudence. See generally Freeman, 503 U.S. at 485-92,112 
S. Ct. at 1443-46 (1992). In evaluating whether a school system 
is "unitary," a district court must carefully assess the facts and 
utilize its sound discretion to determine (1) whether local 
authorities have eliminated the vestiges of past discrimination 
to the extent practicable, and (2) whether local authorities have 
in good faith fully and satisfactorily complied with, and shown 
a commitment to, the desegregation plan. See Lockett II, 111 
F.3d at 842 (quoting Lee v. Etowah County Bd, o f  Educ., 963 
F.2d 1416, 1425 (11th Cir.1992) (citing Dowell, 498 U.S. at 
249-50, 111 S. Ct. at 638)). For a district court to determine 
whether the vestiges o f discrimination have been eliminated to 
the extent practicable, it must examine the six facets of school 
operation, the so-called Green factors: student assignments, 
faculty assignments, staff assignments, transportation, extra­
curricular activities, and facilities. See id. (citing Dowell, 498 
U.S. at 2 4 5 ,111 S. Ct. at 636 (quoting Green, 391 U.S. at 435, 
88 S. Ct. at 1693)). Using its discretion, a court may also 
consider other facets. See id. (citing Freeman, 503 U.S. at 492, 
112 S. Ct. at 1446).

It is not uncommon for plaintiffs in school desegregation 
cases to allege, as Appellees did here, that racial imbalances in 
student assignments, are a "vestige of discrimination." Until 
unitary status is attained, the defendant school board has the 
burden of showing that any racial imbalance in the school 
system is not traceable, in a proximate way, to the prior de jure 
segregation. See Freeman, 503 U.S. at 494,112 S. Ct. at 1447. 
Stated differently, once a plaintiff shows de jure segregation (as 
Appellees did here in 1962, see supra Part I.A), a presumption 
arises that all racial imbalances in a school district are the result 
of the de jure  segregation. See Keyes v. Sch. Dist. No. 1, 
Denver, Colo., 413 U.S. 189, 208, 93 S. Ct. 2686, 2697, 37 L. 
Ed. 2d 548 (1973). To rebut this presumption, "a school board 
must prove that the imbalances are not the result of present or



31a

past discrimination on its part." Lockett II, 111 F.3d at 843 
(citing Swann, 402 U.S. at 25, 91 S. Ct. at 1281); accord 
Keyes, 413 U.S. at 211, 93 S. Ct. at 2699.

2. District Court's Reliance on Lockett I 
a. Wrong Legal Standard

With the foregoing principles and standards in mind, we 
turn to the case before us. Appellants argue, inter alia,26 27 that 
the district court committed reversible error by relying upon our 
opinion in *943 Lockett v. Board o f Education o f  Muscogee 
County, 92 F.3d 1092 (11th Cir.1996) (Lockett I)}1 In Lockett 
I, a panel of this Court reversed a district court's finding of

26We need not address every argument advanced by 
Appellants with which we agree. We pause, however, to highlight 
Appellants' contention that the district court must provide them with 
a "precise statement" of their obligations under a consent decree. 
See, e.g., Jenkins, 515 U.S. at 101, 115 S. Ct. at 2055. The district 
judge avoided this requirement and held that she would not "tell 
[Appellants] which specific means to employ" for achieving unitary 
status. Manning, 28 F. Supp. 2d at 1360; see also id. at 1355 
(refusing to describe "specific action" for Appellants to take). Even 
if we were to hold that Appellants' school district was not unitary, we 
would nonetheless remand this case with instructions that the district 
court provide specific guidance on what steps Appellants must take 
to achieve unitary status. But since we conclude the school district 
is unitary, see infra Part III, there is no need for the district judge to 
issue a statement, precise or otherwise, on Appellants' obligations.

27The district judge was aware that Lockett I  had been 
superseded by Lockett II, but she justified her reliance on Lockett I  
upon the belief that "Lockett I  reiterated established principles of 
law." Manning, 24 F. Supp. 2d at 1311. District judges in this 
circuit, however, are required to adhere to the decisions of this Court 
and the Supreme Court. See Fishman & Tobin, Inc. v. Tropical 
Shipping & Constr. Co., 240 F.3d 956, 965-66 n. 14 (11th Cir.2001).



32a

unitary status and ordered the district court to "retain 
jurisdiction . . .  to monitor the progress of the school district’s 
desegregation efforts" until the school district could show that 
it ”ha[d] desegregated its schools to the maximum extent 
practicable." Id. at 1101 (emphasis added). Lockett I  was 
subsequently vacated by the same panel. See Lockett II, 111 
F.3d at 840-45.

The district judge, in relying on Lockett I, applied the 
wrong legal standard. The law does not require, as stated in 
Lockett I, that a school board eliminate the vestiges of past 
discrimination "to the maximum extent practicable." 92 F.3d at 
1101 (emphasis added). Rather, the law merely requires that 
the vestiges of past discrimination be eliminated "to the extent 
practicable." Lockett II, 111 F.3d at 842 (emphasis added); 
accord Jenkins, 515 U.S. at 90, 115 S. Ct. at 2050;28 Freeman, 
503 U.S. at 492, 112 S. Ct. at 1446; Dowell, 498 U.S. at 250, 
111S. Ct. at 638; United States v. Georgia, 171 F.3d 1344, 
1347 (11th Cir.1999); Lee, 963 F.2d at 1425. The district 
judge incorrectly referred to the "maximum extent practicable 
(or possible)" standard at least 12 times in her opinion of 
October 24, 1998, and four times in her order of December 4, 
1998. See Manning, 24 F. Supp. 2d at 1287,1289,1290,1292, 
1293, 1301,1312, 1326, 1334, 1335; Manning, 28 F. Supp. 2d 
at 1356, 1359, 1360.

28The district court in Jenkins stated that its goal was to 
integrate the school district to the "maximum extent practicable" and 
to the "maximum potential." 515 U.S. at 81, 101, 115 S. Ct. at 2045, 
2055. The Supreme Court expressly rejected this test and held that 
the proper test was whether the deficiencies "attributable to prior de 
jure segregation had been remedied to the extent practicable." Id. at 
101, 115 S. Ct. at 2055.



33a

Accordingly, the critical issue is whether the district 
judge's repeated use of the wrong legal standard sufficiently 
tainted or infected the findings o f fact so as to strip those 
findings of the insulation normally accorded under Rule 52(a). 
See supra Part II.A; Corley, 566 F.2d at 1001. We would not 
permit an inadvertent use of language by a district court to 
constitute reversible error. Here, however, we are persuaded 
that the district judge's mistake is more than mere 
inadvertence.29 As we discuss immediately below, the district 
judge's findings on student assignments and good faith were 
tainted (and thus stripped of Rule 52(a) protection) because the 
district judge held Appellants to a higher standard than the law 
requires.

b. Application o f  Wrong Legal Standard to Finding on 
Student Assignments

In Lockett, the critical issue was, as it is here, whether 
the racial imbalances in student assignments precluded a finding 
of unitary status. See Lockett II, 111 F.3d at 842, 843. Lockett 
II  held that, for a school board to rebut the presumption o f de 
jure  segregation, the school board had to prove "the [racial] 
imbalances [were] not the result of present or past 
discrimination on its part." Id. at 843; see also supra Part 
II.B.l. The district court in *944 Lockett II  found the school 
board rebutted the presumption by presenting expert 
demographic evidence showing the imbalances to be the result

29The phrase "to the extent practicable" is not meaningless 
surplusage. As the Third Circuit has noted, "[T]he phrase 'to the 
extent practicable' implies a reasonable limit on the duration of [the] 
federal supervision" because "extending] federal court supervision 
indefinitely is neither practicable, desirable, nor proper." Coalition 
To Save Our Children v. State Bd. ofEduc. o f Del., 90 F.3d 752, 760 
(3d Cir.1996).



34a

of voluntary housing patterns and demographic change. See id. 
The school board's demographic evidence was not contradicted 
by plaintiffs' experts. See id. The Lockett //majority affirmed 
the district court's finding as not being clearly erroneous. See 
id. at 844.

By contrast, Lockett I  staked out a position on the law 
under which school boards would have been held to a higher 
standard. Instead o f affirming, the Lockett /  panel would have 
remanded, so the district court could have continued 
supervising the school board "until such time as a reliable body 
of data exist[ed] to assure . . . that the school district ha[d] 
desegregated its schools to the maximum extent practicable." 
Lockett I, 92 F.3d at 1101 (emphasis added); accord Lockett II, 
111 F.3d at 844 (Barkett, J. dissenting). Under Lockett /, a 
school board would have been required to remedy racial 
imbalances even when "the imbalances [were] caused by 
circumstances over which the school district has no control." 
Lockett I, 92 F.3d at 1099 (quoted in Manning, 24 F. Supp. 2d 
at 1310). Moreover, according to Lockett /, to be declared 
unitary, it is not enough for a school board to show 
demographic shifts as the cause of the racial imbalances, as 
"demographic shifts are not necessarily independent of prior 
unconstitutional practices."30 Id. at 1099 (cited in Manning, 28 
F. Supp. 2d at 1359).

30Judge Barkett, the author of Lockett I, further elaborated on 
this view in her Lockett //dissent. In particular, Judge Barkett wrote 
that it was erroneous to "assume [ ] that as long as a school district 
can point to some force not directly related to a school district's overt 
actions which is causing or exacerbating racial imbalances, then the 
resulting imbalance is not traceable to past practices." Lockett II, 111 
F.3d at 845 (Barkett, J. dissenting).



35a

Lockett I, however, is not the law of this circuit. Rather, 
the law of the circuit must be distilled from Lockett II. We 
reiterate that, to overcome the presumption that racial 
imbalances are constitutionally violative, "a school board must 
prove that the imbalances are not the result of present or past 
discrimination on its part." Lockett II, 111 F.3dat843. Lockett 
II  stands for the proposition that a school board overcomes this 
presumption when it shows that some external force, which is 
not the result of segregation and is beyond the school board's 
control, substantially caused the racial imbalances. See id. 
(upholding declaration of unitary status when district court 
found demographic shifts caused racial imbalances); see also 
Jenkins, 515 U.S. at 102,115 S. Ct. at 2055-56; contra Lockett 
II, 111 F.3d at 845 (Barkett, J. dissenting) (advocating contrary 
proposition). Where a defendant school board shows that 
demographic shifts are a substantial cause of the racial 
imbalances, the defendant has overcome the presumption of de 
jure  segregation. See Lockett II, 111 F.3d at 843. Courts shall 
not assume that demographic shifts are a result of the past de 
jure  segregation. Contra Lockett 1,92 F.3d at 1099 (advocating 
contrary proposition); Lockett II, 111 F.3d at 845 (Barkett, J. 
dissenting) (same). Such an assumption is improper because " 
'[i]t is simply not always the case that demographic forces 
causing population change bear any real and substantial relation 
to a de jure  violation, and the law need not proceed on that 
premise'."31 Lockett II, 111 F.3d at 843 (internal alterations 
omitted) (quoting Freeman, 503 U.S. at 496, 112 S. Ct. at 
1448). Lastly, a plaintiff does not undermine the strength of a

31In addition, "[a]s the de jure violation becomes more 
remote in time and . . . demographic changes intervene, it becomes 
less likely that a current racial imbalance in a school district is a 
vestige of the prior de jure system." Lockett II, 111 F.3d at 843 
(internal alterations included) (quoting Freeman, 503 U.S. at 496, 
112 S. Ct. at 1448).



36a

defendant's demographic evidence by merely asserting that 
demographics alone do not explain the racial *945 
imbalances.32 Rather, for a plaintiff to preserve the presumption 
of de jure  segregation, the plaintiff must show that the 
demographic shifts are the result of the prior de jure  segregation 
or some other discriminatory conduct.

If the district judge had applied Lockett II, rather than 
Lockett I, her findings of fact would have led her to the same 
conclusion as the magistrate judge with respect to student 
assignments. The district judge, like the magistrate judge, 
found that demographic shifts were a "substantial" or 
"significant" reason for the racial imbalances and that the racial 
imbalances were inevitable, irrespective of Appellants' efforts. 
See swpra Part I.B.3.a; Manning, 24 F. Supp.2dat 1303,1311; 
Manning, 28 F. Supp. 2d at 1356. With this finding of fact, 
Appellants overcame the presumption that the racial imbalances 
in student assignments were the result o f de jure  segregation. 
To preserve the presumption, Appellees were required to show 
that the demographic shifts were the result o f the past 
segregative practices or some other discriminatory conduct. 
Appellees made no such showing. The district judge never 
found that the racial imbalances at the 17 challenged schools 
were caused by the past de jure  segregation or other 
discriminatory acts. In fact, the district judge found the exact 
opposite. That is, the district judge found that Appellants did 
not deliberately cause the racial imbalances through segregative 
policies or practices. See supra Part I.B.3.a; Manning, 24 F. 
Supp. 2d at 1310. Appellees merely persuaded the district 
judge that demographics alone did not account for the racial 
imbalances. See id. at 1302 (refusing to find that a "shift in

32It is elementary that one may not rebut extensive evidence 
with a scintilla of evidence. See, e.g., 2 McCormick on Evidence § 
338, at 416 (John W. Strong et al. eds., 5th ed. 1999).



37a

demography [was] the sole cause [of] the [racial] imbalance [s]" 
in the school system). Such a finding is insufficient to deny 
Appellants a declaration of unitary status.

Accordingly, by applying the correct legal standard from 
Lockett II to the district judge's findings o f fact, we reach the 
same conclusion as the magistrate judge: Appellants have 
achieved unitary status with respect to student assignments.

c. Application o f  Wrong Legal Standard to Finding 
on Good Faith

As discussed previously, the district judge had two 
interrelated areas of concern which precluded, in her view, a 
finding of good faith: Appellants' apathy and the lack of an 
effective MTM program. See supra Part I.B.3.b. The district 
judge's reliance on Lockett I  undoubtedly infected her finding 
with regard to Appellants' alleged apathy. The district judge, as 
noted above, expected Appellants to "desegregate the public 
schools in Hillsborough County to the maximum extent 
practicable." E.g, Manning, 24 F. Supp. 2d at 1287; supra Part 
I.B.3 .b. Such an expectation was erroneous, for the law does not 
require a defendant school board to take every conceivable step 
in attempting to desegregate. See, e.g., Freeman, 503 U.S. at 
493,112 S. Ct. at 1447 (expressly rejecting premise that "heroic 
measures must be taken to ensure racial balance"). Thus, the 
district judge's concern about Appellants' alleged "apathy" was 
an error of law directly traceable to her reliance upon Lockett I.

Further, Appellants' lack of an effective MTM program 
does not necessarily amount to a finding of bad faith. For 
instance, in Lockett, the school board did not implement its 
MTM program until years after the desegregation decree was 
entered and ignored other requirements of the desegregation 
decree. See Lockett II, 111 F.3d at 844; Lockett I, 92 F.3d at 
1100, 1101. Nonetheless, we affirmed a finding of good faith



38a

based in part on the district court's finding that the school board 
had never violated a court order, *946 had never been enjoined 
or sanctioned, and had consulted with African- American 
members o f the community before modifying the student 
assignment plan. See Lockett II, 111 F.3d at 843-44; contra 
Lockett /, 92 F.3d at 1100, 1101. Likewise, in the case sub 
judice, Appellants never violated a court order, never were 
sanctioned, and consulted extensively with the African- 
American community, including Appellees, prior to 
implementing new student assignments under the 1991 Task 
Force Report. See supra Parts I.B.2 & I.B.3.b. Therefore, based 
on Lockett II, the district judge clearly could have found the 
Appellants acted in good faith, notwithstanding the lack of a 
viable MTM program.

Additionally, we are persuaded that, if the district judge 
had followed the law as set forth in Lockett II, she would have 
concluded that Appellants have acted in good faith. As we 
explained in Lockett II, in determining whether a school board 
has acted in good faith, a court should not dwell on isolated 
discrepancies, but rather should "consider whether the school 
board's policies form a consistent pattern of lawful conduct 
directed to eliminating earlier violations."33 Lockett II, 111 F.3d 
at 843 (internal quotations omitted); see also Freeman, 503 
U.S. at 491, 112 S. Ct. at 1446 (holding that "a court should 
give particular attention to the school system's record of 
compliance"). Repeatedly in the October 26,1998, opinion, the * 111

33The focus is on the school board's pattern of conduct, and 
not isolated events, because the purpose of the good-faith finding is 
to ensure that a school board has accepted racial equality and will 
abstain from intentional discrimination in the future. See Lockett II,
111 F.3d at 843 (citing Freeman, 503 U.S. at 498, 112 S. Ct. at 
1449). Focusing on isolated aberrations blurs a court's long-term 
vision.



39a

district judge commended Appellants for their desegregation 
efforts. See, e.g., Manning, 24 F. Supp. 2d at 1287,1311,1312, 
1325; supra Part I.B.S.b. At the end of the opinion, the district 
judge further commented:

After evaluating the voluminous record in this case, the 
Court is convinced that [Appellants] have a short road 
to travel [to attain unitary status]. Essentially, 
[Appellants] need to demonstrate that they are willing to 
aggressively desegregate the school district to the 
maximum extent practicable.34

Manning, 24 F. Supp. 2d at 1335. Based on the foregoing 
statement, we are convinced that, if the district judge had 
applied the correct standard, she would have found (as the 
magistrate judge did) that Appellants acted in good faith, 
notwithstanding the absence of an effective MTM program and 
other possible discrepancies.

Our conclusion is buttressed by two other points. First, 
the MTM program, as conceded by Appellees' expert, would 
have been ineffective in desegregating the 17 challenged 
schools.35 As such, the MTM program should have had only 
marginal relevance in analyzing whether Appellants' "policies 
form[ed] a consistent pattern of lawful conduct directed to

34In contrast to the district judge, the magistrate judge 
recognized that "[a] school board's affirmative duty to desegregate 
does not require adoption of the most desegregative alternative 
available."

35We are by no means suggesting that a desegregation plan 
cannot, or should not, include an MTM program. The Supreme 
Court has spoken favorably of MTM programs. See Swann, 402 U.S. 
at 26-27, 91 S. Ct. at 1281.



40a

eliminating earlier violations." Lockett II, 111 F.3d at 843 
(emphasis added) (internal quotations and citation omitted).

Second, discerning a school board's good faith is in 
some respects a subjective finding. Thus, such a finding 
depends in part on the judge's personal observation of the 
witnesses. The magistrate judge, not the district judge, 
observed all of the witnesses at the evidentiary hearing. 
Granted, the district judge was free under 28 U.S.C. § 636 to 
make a de novo determination of the magistrate judge's 
findings. In other contexts, however, we have cautioned district 
judges from overruling a magistrate *947 judge's finding where 
credibility determinations are dispositive. See, e.g., Proffitt v. 
Wainwright, 685 F.2d 1227,1237 (11th Cir. 1982) (noting that, 
in criminal or habeas corpus cases, a district judge's reasons for 
rejecting a report and recommendation must be consistent with 
the credibility choices made by a magistrate). In addition, the 
rationale for deferring to a district court's finding of fact is that 
a trial judge is aware of the variations in demeanor which bear 
so heavily in making a subj ective determination. See Anderson, 
470 U.S. at 575, 105 S. Ct. at 1512. Where, as here, a district 
judge does not personally observe the witnesses in making a 
subjective finding of fact, we view such a finding with 
skepticism, especially where, as here, the finding is contrary to 
the one recommended by the judicial official who observed the 
witnesses.

III. CONCLUSION

The district judge's finding that Appellants have not 
achieved unitary status was tainted and infected by reliance on 
an incorrect legal standard. As such, we reverse the district 
judge's orders of October 26, 1998, and December 4, 1998. 
Upon remand, the district court shall enter judgment declaring 
the Hillsborough County school system unitary. Therefore,



41a

federal judicial supervision of the Hillsborough County school 
system shall cease.

REVERSED and REMANDED.



42a

Order of the District Court of December 4,1998

United States District Court,

M.D. Florida,
Tampa Division.

Andrew L. MANNING, et al., Plaintiffs, 

v.

THE SCHOOL BOARD OF HILLSBOROUGH COUNTY, 
Florida (formerly Board of Public Instruction of Hillsborough 

County, Florida), et al., Defendants.

No. 58-3554-CIV-T-17.

Dec. 4, 1998.

*1355 Victor A. Bolden, Marianne Engelman Lado, 
Jacqueline A. Berrien, NAACP Legal Defense & Educational 
Fund, Inc., New York, NY, Warren H. Dawson, Dawson & 
Griffin, P.A., Tampa, FL, for Andrew L. Manning, Shayron 
B. Reed, Sanders B. Reed, plaintiffs.

Thomas M. Gonzalez, Thompson, Sizemore & Gonzalez, P.A., 
Walter Crosby Few, Few & Ayala, P.A., Tampa, FL, for Board 
of Public Instruction of Hillsborough County, FL, defendants.

ORDER

KOVACHEVICH, Chief Judge.

This cause comes before the Court on Defendants'



43a

Motion to Alter or Amend Judgment (Docket No. 822)1 and the 
Plaintiffs' response (Docket No. 823).

As a preliminary matter, Defendants explain that they 
have begun to take appropriate steps, including scheduling 
meetings to conduct open discussions with Plaintiffs and 
soliciting input from the parents of school attending children 
and other members o f the public. Moreover, Defendants 
emphasize that they are reviewing desegregation techniques 
which are available to them. These are certainly positive steps 
and the Court is anxious to see the results.

Nevertheless, Defendants request a further explanation 
of this Court's October 26, 1998, Order so that the parties will 
have a common interpretation of the Order. Defendants state 
that, "[d]espite numerous readings of the Order, the Defendants 
and their representatives and counsel are in substantial doubt as 
to exactly what actions they must, or indeed, may, take in order 
to satisfy the Court." However, Defendants stress that they do 
not seek a specific description of what means they may employ 
to meet the Court's requirements. In other words, Defendants 
seek a specific description of "the Court's requirements," not a 
means for meeting those requirements.

’Defendants file their Motion pursuant to Rule 59(e) of the 
Federal Rules of Civil Procedure. Rule 59(e) permits a district court 
to entertain a motion to alter or amend a judgment. A party can 
invoke the mle to direct a court's attention to matters such as newly 
discovered evidence or a manifest error of law or fact. A motion to 
alter or amend a judgment is not appropriately used to advance 
arguments or theories that could and should have been made before 
the district court rendered a judgment, or to present evidence that was 
available earlier. Consequently, Defendants' Motion will be treated 
solely as a Motion for Clarification.



44a

Notwithstanding, Defendants' second paragraph of their 
memorandum states:

The Court suggests that the Defendants "should evaluate 
desegregation tools which have been successful in other 
districts." (Order, page 109). It refers to "desegregative 
devices" which were available to the Defendants, but 
not used. (Order, page 61). It does not, however, 
describe these opportunities, nor does it provide any 
other direction.

Defendants then argue in a footnote, "[i]n fact, neither 
the Plaintiffs nor the Court has pointed to any specific action 
which the Defendants could or should have taken to meet their 
obligation to desegregate to the 'maximum extent practicable.'" 
Contrary to Defendants' assertions, Defendants seek to be told, 
specifically, which desegregation tools to use.

The Court has already pointed to deficiencies in 
Defendants' desegregation performance and will not, in fact, 
describe "specific action" which can be taken. However, if 
Defendants are unable to discern the appropriate measures to 
take on their own, the Court will hire experts of its own 
choosing to carry out the task for Defendants, at Defendants' 
expense, of course.

In addition, Defendants emphasize that during the 
course of this litigation, Plaintiffs stated that Defendants were 
complying with the Court's Desegregation Order, *1356 and 
that the plan was effective. Moreover, Defendants improperly 
raise arguments already considered by the Court concerning 
Plaintiffs' failure to object to Defendants' actions. Significantly, 
the Court, not Plaintiffs, must determine whether unitary status 
has been attained. Any posturing that has taken place between 
the parties is inconsequential to this Court's determination. 
Perhaps this concept has hindered Defendants' accomplishments



45a

over the years. Defendants' obligations remain until "the 
affirmative duty to desegregate has been accomplished and 
racial discrimination through official action is eliminated from 
the system." See Pasadena City Bd. ofEduc. v. Spangler, 427 
U.S. 424, 436, 96 S. Ct. 2697, 49 L. Ed. 2d 599 (1976). A 
judicial determination as to whether Defendants have 
accomplished their affirmative duty was never sought until this 
Court prodded Defendants to see where this case was going. 
Consequently, the fact that Plaintiffs once argued in a brief that 
the schools were desegregated, in order to prevent action sought 
by Defendants, should not be repeatedly emphasized to the 
Court.

Equally as unproductive, "Defendants ask the Court to 
consider that 'inaction' by a party who believes it to be 
consistent with the Court's directive may be error, but is not 
apathy. They ask as well that the Court remember that the 
Defendants did not rely solely on the Court's ex parte oral 
interpretations of its Order, but on a more public form of 
information as well." Defendants continue that the Court 
should acknowledge that the Court did not require any alteration 
of Defendants' action since 1974.

If Defendants' feelings have been hurt by the Court's 
Order denying unitary status; perhaps they expect an apology 
from the Court. Defendants should refrain from filing any 
additional motions in an attempt to explain why the Court 
should not unfairly characterize their inaction. There is a very 
complex and significant task to be accomplished in 
Hillsborough County. If attaining unitary status is going to be 
impaired because Defendants feel that they have been 
personally offended by constructive, and blatantly honest, 
criticisms, there are larger problems afoot in Hillsborough 
County.



46a

On page 19 of their Memorandum, Defendants argue, 
"[i]f the Court intends a holding in its Order that the 
Defendants' chances of attaining a finding of unitary status were 
doomed by acts not taken in 1976, by Board members and 
administrators who are no longer associated with the School 
board, then they ask for reconsideration of that conclusion." 
Apparently, this point needs to be made crystal clear: this case 
concerns the operations of a public school system, not 
individuals personally. The school system must be operated on 
a nondiscriminatory basis and all vestiges of the prior 
constitutional violations must be eliminated to the maximum 
extent practicable. This is true regardless o f the particular 
individuals acting for the School Board at any given time. To 
even suggest that acts not taken by the particular individuals 
currently sitting on the School Board should not be considered 
is absolutely ridiculous. The school system does not magically 
become desegregated simply because the ball has changed 
hands. Eliminating the vestiges of past discrimination to the 
maximum extent practicable is not limited to the tenure of 
individual Board Members. The Court will not address similar 
arguments raised in Defendants' Memorandum. This is not 
productive.

Despite Defendants' use of the instant Motion to defend 
their actions which have already been ruled upon, Defendants 
have raised genuine issues regarding their obligations. 
Moreover, Defendants discuss the fact that the 1971 
Desegregation Order did not provide much detail and they 
explain that the School Board needs additional guidance with 
regards to their obligations.

I. The Nature o f the Court's Conclusions Relating to Student 
Assignment.

In the October 26, 1998, Order, the Court stated that 
while demographics have played a significant role in



47a

Hillsborough County, the Court is not convinced that a shift in 
demographics and residential patterns explains the racial 
imbalance in the Hillsborough County school system. The 
Court also emphasized that the increase in *1357 the black 
population was not nearly as drastic as the increases 
experienced in cases cited by Defendants. Because the school 
system has not yet achieved unitary status, Plaintiffs are entitled 
to a presumption that the current disparities are the result of 
prior segregation. Defendant has the burden to prove otherwise.

In their Memorandum, Defendants ask the Court to 
consider whether its inability to determine the extent of the role 
played by demographics in producing numbers which are 
central to its concerns, and, by extension, its inability to 
conclude with certainty whether the schools of Hillsborough 
County are in fact unitary, are the product o f Defendants' 
counsel's unartfulness in presenting their evidence, as opposed 
to the reality which that evidence sought, but failed, to portray. 
Specifically, the Defendants ask the Court to consider whether 
or not additional or different data are needed, and/or whether 
further hearings would be helpful.

Undoubtedly, additional data is required. However, this 
is not simply a "numbers game" and the Court went to great 
lengths to explain that Defendants have not demonstrated a 
good faith commitment to desegregating the school system. In 
order to achieve constitutional compliance, a school district is 
obligated to comply, in good faith, with the court's 
desegregation decree and "take whatever [affirmative] steps 
might be necessary to convert to a unitary system in which 
racial discrimination would be eliminated root and branch." 
Green v. SchoolBd. o f New Kent County, 391 U.S. 430,437-39, 
88 S. Ct. 1689,20 L. Ed. 2d.2d 716 (1968).

Defendants need to provide the Court with additional 
data concerning how successful their desegregation efforts have



48a

been. Significantly, Defendants should provide the Court with 
statistics regarding the racial compositions of the schools in the 
county from 1995 to the present. Defendants should explain 
whether racial compositions have improved or worsened. If 
they have worsened, Defendants should explain why, and what 
is going to be done. Defendants should provide the Court with 
additional data concerning their majority to minority transfer 
program and explain whether this has been successful. 
Defendants should look at other school districts similar in size 
to Hillsborough County and determine whether the transfer 
program in Hillsborough County can be improved. Defendants 
should gather current statistics in connection with their magnet 
schools and programs and determine whether the circumstances 
have improved since 1995 and whether Defendants' predictions 
have proven accurate. Moreover, Defendants should compare 
the quality and success of their magnet schools and programs 
with other school districts similar in size.

In its Order, the Court directed Defendants' attention to 
the various other ethnic groups represented in Hillsborough 
County. Defendants correctly assert that, until a constitutional 
violation has been alleged and established as to a specific 
minority, the Court may not issue injunctive relief. However, 
Defendants can certainly provide accurate statistics to carry 
their burden. While the parties have been arguing that, for 
instance, one school is 90% black, it may support Defendants' 
other demographics statistics to have accurate statistics showing 
that the school is really 60% black, 20% Hispanic, 5% Asian, 
5% other, and 10% white. The County has changed a great deal 
since 1971 and the Court is interested in a true picture of the 
composition o f the schools, not because a constitutional 
violation has been alleged, but because Defendants are trying to 
present an accurate, and current, picture of the school system.

The breakdown of the different ethnic groups is not 
crucial to Defendants attaining unitary status and Defendants



49a

can present their case anyway they choose. Defendants also 
seek guidance as to the significance of particular race ratios. 
Admittedly, the "standard" used has been the Court's 80%/20% 
ideal. As noted above, the actual populations of ethnic groups 
in the County may illustrate that a new "standard" should be 
used or additional factors considered. The use of the 40% 
threshold is to measure Defendants' effectiveness at 
desegregating the County schools. Because the parties have not 
challenged whether the population *1358 as a whole is roughly 
80%/20%, the Court has continued to use this to determine 
Defendants' progress. Defendants' progress entails not only 
desegregating the schools because of past discrimination, but 
demonstrating that it has strategically planned to avoid 
discrimination in the future. In other words, Defendants do not 
have to ensure that every school in the system is precisely 80% 
white and 20% black. However, the Court must have a 
reference point to evaluate Defendants' efforts. Therefore, 
Defendants are not held steadfastly to any particular race ratios, 
but must have reasonable, and supportable, explanations for 
schools that are substantially disproportionate in their racial 
composition. See Swann v. Charlotte-Mecklenburg Bd. o f  
Educ., 402 U.S. 1, 26, 91 S. Ct. 1267, 28 L. ED. 2D.2d 554 
(1971).

Defendants claim that the Court fails to provide a 
"threshold by which racial identifiability may be identified as 
requiring action." Defendants have the burden to prove that the 
school system has been desegregated. Until unitary status has 
been declared, Defendants are required to take affirmative steps 
to desegregate the system. The Court cannot say that every time 
an individual school becomes 41% black, action must be taken 
at that school. But when the system is evaluated in its entirety 
and several schools are becoming more and more segregated, 
Defendants must be able to explain why. A 20% variance from 
the "ideal race ratios," which have yet to be proven 
inappropriate as a starting point, indicates that a school is on its



50a

way to becoming majority black. The School Board should 
become concerned enough to investigate its cause, especially if 
several schools are becoming majority black. The Court has not 
denied Defendants' request to be declared unitary simply 
because a school has reached a particular race ratio. However, 
the Court did issue its ruling based on the increase in the 
number of schools which indicate a source of concern and 
Defendants' failure to take affirmative steps or demonstrate that 
they have strategically planned for the future. It is not the role 
of the Court to engage in strategic planning. The Court's role is 
to oversee the strategic planning that is entirely the 
responsibility of the School Board.

Another comparison to the efforts taken by the school 
district in Freeman is instructive. In Freeman, the school 
district's desegregation plan was adopted by the district court in 
1969. Freeman v. Pitts, 503 U.S. 467, 471, 112 S. Ct. 1430, 
118 L. ED. 2D.2d 108 (1992). "Remarkable changes in the 
racial composition of the county presented [the school district] 
and the District Court with a student population in 1986 far 
different from the one they set out to integrate in 1969." Id. at 
475,112 S. Ct. 1430 (emphasis added). The racial proportions 
of the student population was further described as a "striking 
change." Id. (emphasis added). "The school system that the 
District Court ordered desegregated in 1969 had 5.6% black 
students; by 1986 the percentage of black students was 47%." 
Id. (emphasis added). The county also experienced "radical” 
demographic changes, and, as a result, the northern half o f the 
county became predominately white and the southern half 
became predominately black. Id. "In 1970, there were 7,615 
nonwhites living in the northern part of DeKalb County and 
11,508 nonwhites in the southern part of the county. By 1980, 
there were 15,365 nonwhites living in the northern part of the 
county, and 87,583 nonwhites in the southern part." Id. The 
district court in Freeman found that the demographic shifts had 
an immense effect on the racial compositions of the county's



51a

schools. Id. at 476, 112 S. Ct. 1430.

When the school district sought a declaration of unitary 
status in 1986, the district court noted that the school district 
"had taken specific steps to combat the effects of demographics 
on the racial mix of the schools." Id. at 479, 112 S. Ct. 1430. 
The school district, "on its own initiative, started an M-to-M 
program in the 1972 school year. The program was a marked 
success. Participation increased with each passing year, so that 
in the 1986-1987 school year, 4,500 of the 72,000 students 
enrolled in [the school system] participated." Id. (emphasis 
added). In 1986, the district court found that 19% of the 
students in the school system had an integrated learning 
experience as a *1359 result of the M-to-M program. Id. 
Moreover, as early as 1980, the school district in Freeman 
voluntarily instituted a magnet school program in the schools 
located in the middle of the county in order to attract students 
from the segregated northern and southern parts o f the county.

The district court found that the school district's actions 
"achieved maximum practical desegregation from 1969 to 
1986." Id. at 480, 112 S. Ct. 1430. The district court in 
Freeman also stated that it was "convinced that any further 
actions taken by defendants, while the actions might have made 
marginal adjustments in the population trends, would not have 
offset the factors that were described above and the same racial 
segregation would have occurred at approximately the same 
speed." Id. at 480-81, 112 S. Ct. 1430 (quoting the district 
court's opinion).

Conversely, in the case at hand, the increase in black 
students has only been from 17.4% in 1970, to 19.4% in 1990. 
This is hardly "striking," "radical," or "remarkable." 
Furthermore, the M-to-M transfer program has been a marked 
failure. Defendants had not granted one (1) M-To-M transfer as 
of 1996. Finally, Defendants failed to develop magnet schools



52a

and programs, except for the magnet program at Tampa Bay 
Technical High School, until 1993. This Court is not convinced 
that Defendants' inaction has not contributed to the degree and 
magnitude o f segregation in Hillsborough County's schools. 
Significantly, each instance of a failure or refusal to fulfill 
Defendants' "affirmative duty continues the violation of the 
Fourteenth Amendment." Columbus Bd. ofEduc. v. Penick, 443 
U.S. 449, 459, 99 S. Ct. 2941, 61 L. ED. 2D.2d 666 (1979). If 
you choose not to decide, you have made a choice.

The central question which Defendants seek to have 
clarified is whether Defendants have an obligation to use any 
desegregative techniques in response to racial ratios which they 
did not cause through historical or current unlawful inaction. 
The only way the Court can possibly answer Defendants' 
question is with another question: "Who has made the
determination that Defendants did not cause the imbalances?" 
This Court has not made that determination. Although 
Defendants spend a great deal of effort trying to convince the 
Court that Plaintiffs, at one time, made that determination, 
Defendants have missed the point of this litigation. Defendants 
cannot unilaterally determine that they have not caused the 
current segregation in the schools. That is precisely why they 
must continue to take affirmative action to desegregate the 
schools until they seek unitary status and the Court finds that 
the school system is unitary. Moreover, Defendants cannot 
assume that demographic shifts are necessarily independent of 
prior unconstitutional practices. "The school district bears the 
burden of showing that no [ ] causal link exists [between the 
racial imbalances and the prior unconstitutional practices and 
unconstitutional inaction], and absent such a showing, the 
district must continue to make affirmative efforts to remedy 
racial imbalances while subject to court order." Lockett v. 
Board ofEduc. o f  Muscogee Co. Sch. Dist.,92  F.3d 1092,1099 
(11th Cir. 1996).



53a

District courts must assert jurisdiction over school 
systems in order to ensure compliance with the courts' remedial 
orders and the Constitution until such time as a district court 
determines that the vestiges of past discrimination have been 
eliminated to the maximum extent practicable. In determining 
whether Defendants have satisfied their burden of proving that 
the current imbalances in the school system are not the result of 
present or past discriminatory action, the Court must consider:

(1) whether the racial imbalances are traceable, in a 
proximate way, to constitutional violations, (2) whether 
the school district has exhibited a record of full and 
satisfactory compliance with the decree, and (3) 
"whether the school district has demonstrated, to the 
public and to the parents and students of the once 
disfavored race, its good faith commitment to the whole 
of the court's decree and to those provisions of the laws 
and the constitution that were the predicate for judicial 
intervention in the first place."

Lockett, 92 F.3d at 1097 (quoting Freeman, 503 U.S. at 494, 
112 S. Ct. 1430). The Court *1360 has considered these 
factors in its previous order and found that the racial imbalances 
in Hillsborough County appear traceable to Defendants' prior 
unconstitutional practices and the continued unconstitutional 
inaction. Moreover, the Court emphasized that Defendants 
have not demonstrated a good faith commitment to 
desegregating the County schools.

"The good faith requirement assures parents, students, 
and the public that they will be protected against further injuries 
or stigma, by making 'it unlikely that the school district would 
return to its former ways.' " Id. at 1100 (citations omitted). 
"[A] finding of good faith . . . reduces the possibility that a 
school system's compliance with court orders is but a temporary 
constitutional ritual." Id. (quoting Morgan v. Nucci, 831 F.2d



54a

313, 321 (1st Cir.1987)). Defendants have not satisfied this 
requirement.

The Court cannot tell Defendants which specific means 
to employ. However, their obligations should be clear. 
Defendants must make efforts to affirmatively desegregate the 
school system and submit proof that they have, in fact, done so 
to the maximum extent practicable. An integral part of this 
proof will be documentation of the strategic planning 
Defendants have engaged in to ensure that discrimination does 
not occur in the future. A history and pattern of good faith and 
affirmative efforts will speak for itself. School districts, such 
as the one in Freeman, typically seek unitary status and provide 
proof of what the school district has done in the past, and, that 
it is continuing to do everything practicable, but that the 
demographic changes have been so overwhelming that the 
continued efforts are ineffective, and, the school district should 
be released from supervision. Conversely, Defendants have 
furnished proof that they have done some things in the past, but 
provided nothing to suggest that the Court should not look at all 
the things it hasn't done, or the ineffectiveness of what it has 
done, because there has been a 2% shift in the demography of 
Hillsborough County.

Defendants have expressed additional concerns because 
the Court's Order "has imposed on the Defendants several new 
but unspecified reporting obligations." Specifically, Defendants 
seek clarification because the Court stressed that Defendants 
should continue to consider busing burdens in assignment and 
site selection decisions. The Court is not requiring Defendants 
to monitor particular statistics in connection with the busing 
burden. However, the Court wants to emphasize that the busing 
issue should be considered in Defendants' future decisions. The 
Court feels compelled to caution Defendants that busing 
children is of great public importance and failure to account to 
the public for its decisions could become a huge obstacle down



55a

the road. Moreover, the busing issue is tied to the area o f site 
selection, which has been specifically addressed in this Court's 
Order and the Supreme Court opinions sited therein. 
Defendants must consider these interrelated aspects of the 
school system operations, both now and over the long haul.

Plaintiffs specifically raised the issue of Defendants' 
failure to document decisions with regards to site selection. 
Wouldn't it be great if, in the future, Defendants were able to 
say: "Here it is; we looked at the land value, population, 
growth patterns, budget, racial compositions, etc., and even 
more, without having been ordered by the Court to do so. We 
considered the burdens imposed on all students in the system; 
here is what has happened, along with other important 
considerations".

Nevertheless, Defendants shall provide the Court with 
the statistics discussed above concerning racial compositions in 
the schools since 1995, M-to-M transfers, and comparisons to 
other districts of similar size. If the statistics demonstrate that 
the number of schools which are racially imbalanced has 
increased, Defendants should brief the Court on why this has 
taken place, who is responsible for taking action, what action 
will be taken in the future, whether additional experts are 
needed, and other relevant facts to demonstrate that Defendants 
have fully embraced their obligations, have a strategy, and will 
have success in the future. Moreover, if  the number of magnet 
programs in Hillsborough is deficient in comparison to similar 
*1361 districts, Defendants should be prepared to explain why.

Defendants also ask the Court to alter its Order and 
declare the school system unitary in all areas except for student 
assignment. However, the Court declines to do so at this time 
because of the new and creative efforts that the Court foresees 
being implemented in Hillsborough County. "[0]ne o f the 
prerequisites to relinquishment of control in whole or in part is



56a

that a school district has demonstrated its commitment to a 
course of action that gives full respect to the equal protection 
guarantees ofthe Constitution." Freeman, 503 U.S. at 490,112 
S. Ct. 1430. The Court expects that Defendants’ future efforts 
will impact the various operations of the school system and the 
Court deems it appropriate to retain supervision. The Court has 
already discussed the relationships between some o f the Green 
factors and further discussion is unnecessary.

Finally, the Court certainly cannot provide the parties 
with a specific date on which the school system will be declared 
unitary. Nevertheless, the Court anticipates the parties will 
have the 2000 Census data available to them by the time 
Defendants have had sufficient time to demonstrate a pattern of 
good faith compliance and prove that supervision is no longer 
necessary. Accordingly, it is

ORDERED that Defendants' Motion to Alter or Amend 
(Docket no. 822) be DENIED; alternatively, the Court has 
treated Defendants' Motion as a Motion for Clarification which 
has been addressed above and granted only in part.



57a

Opinion of District Court of October 26,1998

United States District Court,
M.D. Florida, Tampa Division.

Andrew L. MANNING, et al., Plaintiffs, 
v.

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

of Hillsborough County, Florida), et al., Defendants.

No. 58-3554-CIV-T-17.
Oct. 26, 1998.

*1281 Victor A. Bolden, Marianne Engelman Lado, Jacqueline 
A. Berrien, NAACP Legal Defense & Educational Fund, Inc., 
New York, NY, for Andrew L. Manning.

Warren H. Dawson, Dawson & Griffin, P.A., Tampa, FL, 
Victor A. Bolden, Marianne Engelman Lado, Jacqueline A. 
Berrien, NAACP Legal Defense & Educational Fund, Inc., New 
York, NY, for Shayron B. Reed, Sandra E. Reed, Nathaniel 
Cannon, Norman Thomas Cannon, Tyrone Cannon, Darnel 
Cannon, Gail Rene Myers, plaintiffs.

Thomas M. Gonzalez, Thompson, Sizemore & Gonzalez, P.A., 
Tampa, FL, Walter Crosby Few, Few & Ayala, P.A., Tampa, 
FL, for Board of Public Instruction of Hillsborough County, FL, 
J. Crockett Famell, defendants.

ORDER

KOVACHEVICH , Chief Judge.

This cause comes before the Court on the Court's Order 
recommitting this matter to the Magistrate Judge for a



58a

determination of whether the Hillsborough County school 
system has attained unitary status (Docket No. 709), the 
assigned Magistrate Judge's Report and Recommendation 
(Docket No. 809), Plaintiffs' Objections to Report and 
Recommendation (Docket No. 812), Brief in Support of 
Plaintiffs' Objections (Docket No. 813), and Defendants’ 
Response to Plaintiffs' Objections to Report and 
Recommendation (Docket No. 815).1 This action was filed on 
December 12, 1958.

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

The Court initially dismissed the complaint for the 
Plaintiffs' failure to exhaust administrative remedies; however, 
the dismissal was reversed and remanded by the court of 
appeals. See Mannings v. Board o f Public Instruction, 277 F.2d 
370, 375 (5th Cir.1960). Subsequently, the Court conducted a 
bench trial and on August 21, 1962, entered an order finding 
that Defendants were, in fact, maintaining an unlawfully 
segregated system of public schools. Consequently, the Court 
enjoined Defendants from operating a racially discriminatory 
school system and allowed Defendants until October 30, 1962, *

'This Court recommitted this matter to the assigned 
Magistrate Judge prior to ruling on Plaintiffs' Amended Motion to 
Enforce (Docket No. 753). The issues raised in said motion are 
subsumed by the rulings in this Order.



59a

in which to file a comprehensive plan for the desegregation of 
the Hillsborough County schools.

Despite the several desegregation plans devised by 
Defendants, the school system remained segregated. See 
Mannings v. Board o f  Public Instruction o f  Hillsborough 
County, 306 F. Supp. 497 (M.D. Fla. 1969) . Significantly, in 
1971, the United States Supreme Court issued several opinions 
which defined with particularity the responsibilities of school 
authorities and the scope of powers of federal courts in 
eliminating state-imposed segregation in the public school 
systems. See Swann v. Charlotte-Mecklenburg Bd. ofEduc., 
402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971); North 
Carolina State Bd. o f  Education v. Swann, 402 U.S. 43, 91 S. 
Ct. 1284, 28 L. Ed. 2d 586 (1971); McDaniel v. Barresi, 402 
U.S. 39, 91 S. Ct. 1287, 28 L. Ed. 2d 582 (1971); and Davis v. 
Board o f  School Commissioners, 402 U.S. 33, 91 S. Ct. 1289, 
28 L. Ed. 2d 577 (1971). On May 11, 1971, the Court entered 
an Order explaining that Hillsborough County's school system 
remained *1282 segregated and required Defendants to 
prepare and submit a comprehensive desegregation plan for the 
Hillsborough County' school system.

In the May 11, 1971, Order, the Court explained that, 
* despite the fact that black students comprised only 19% of the 

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

In order to remedy the constitutional violation, the Court 
directed Defendants to submit a comprehensive desegregation



60a

plan which was to become effective at the beginning of the 
1971-1972 school year, and the Court provided Defendants 
with the following guidelines:

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

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

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

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

The 1971 desegregation plan was designed to 
desegregate student enrollments in grades one (1) through



61a

twelve (12); neither kindergarten nor pre-school was included.2 
All schools were assigned attendance boundaries which, when 
combined with the transportation of certain students, was 
expected to eliminate all majority black schools. The students 
attending the predominately black schools were assigned to 
various schools based on the location of their residence or the 
transportation of groups of these students from satellite zones.3 
As a result, black students were transported to provide racially 
mixed populations for grades one (1) through five (5), and eight 
(8) through twelve (12), whereas, white students were 
transported to sixth and seventh grade centers.

After the Court entered the July 2, 1971, Order, 
Plaintiffs filed a motion which requested that any desegregation 
plan adopted by the Court "include faculty desegregation and 
policies and general reporting provisions and that the Court 
retain jurisdiction." (Docket No. 243). The Court subsequently 
required Defendants to submit reports and retained jurisdiction, 
but did not grant Plaintiffs' request regarding faculty and staff 
assignments. Nevertheless, in a previous Order issued on 
August 25, 1970, the Court had directed that principals, 
teachers, teacher-aides, and other staff, who work directly with 
children at a school, be assigned so that the staffs racial 
composition would not reflect any intention that the school be 
either black or white. Teachers and other staff members were 
to be assigned so that the race ratio *1283 would be

initially kindergartens did not exist in the public school 
system; therefore they were excluded by the 1971 Plan. 
Subsequently, kindergartens were established by the School Board 
and the Court entered an Order which permitted kindergarten 
students to attend neighborhood schools, without regard to student 
race ratios.

3A "satellite zone" is an area which is not contiguous with the 
main attendance zone surrounding a school.



62a

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

Also, in the July 2, 1971, Order, the Court explained 
that the previously ordered relief of majority-to-minority 
transfers, other transfer rules, and Bi-Racial Committee 
approval of site locations, may not be required if Defendants' 
plan was effectuated and accomplished. However, the Court 
required the continuation of each of these requirements "to be 
available and used as necessary." (July 2,1971, Order at 9). In 
addition, the Court ordered Defendants to regularly reexamine 
their transportation system, all facilities, and all extracurricular 
activities, in order to assure that they were maintained, 
operated, and conducted on a nonsegregated, nondiscriminatory 
basis. Id. at 10.

In the 1971-1972 school year, the School Board had 
desegregated all Hillsborough County Schools, with regards to 
student assignment; no majority black school existed in the 
county. (T la t l3 ) .4 Each year following implementation of the 
1971 Plan, Defendants filed at least two (2) reports with the 
Court, copies o f which were served upon opposing counsel. 
The first report provided enrollments by race and grade, as well 
as, faculty assignments, by race, at each school facility operated 
for grades one (1) through twelve (12) in the system. The

4Reference to the parties' exhibits at the unitary status 
hearing are denoted by the letters "PX" or "DX" followed by the 
exhibit number. References to the seven (7) volume transcript of the 
hearing are denoted by the letter "T" followed by the volume and 
page number.



63a

second report enumerated proposed changes in student 
assignments, if  any, which would become effective in the 
following school year. (DX 6 and 7). The reports of proposed 
student assignment modifications included, inter alia, boundary 
changes occasioned by overcrowding and student assignment 
modifications necessitated by the construction of new schools. 
The reports also included projections of anticipated enrollments, 
by race, at schools affected by the proposed changes. Joint Pre- 
Evidentiary Hearing Statement, (DocketNo. 767), Statement of 
Admitted Facts at § 13 ("Stipulation").

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

The 1974 Annual Report submitted by Defendants 
reflected that there were 128 public schools in Hillsborough 
County. The report also indicated that one (1) school, Lee 
Elementary, had become majority black. In addition, 
Cleveland, DeSoto, Edison, and Gary Elementary had black 
student populations which exceeded 40%. After receiving this 
report, the Court, sua sponte, directed Defendants to file a 
supplemental plan designed to insure that, "the requirements of 
the Court's previous orders insofar as they relate to Lee 
Elementary School will be complied with as of the beginning of 
the 1975-1976 school year." (January 14, 1975, Order at 1); 
(Stipulation at § 9). In addition, the Court directed Defendants' 
attention to the other schools in the system which were 
experiencing disproportionate increases in black students. Id.



64a

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

The 1975 Annual Report reflected that there were no 
majority black schools. However, five (5) schools, out of 128, 
had student *1284 populations which were greater than 40% 
black (Cleveland, Edison, Gary, Graham, and Palm River 
elementary schools). During the 1975-1976 school year, 
Cleveland became a majority black school (55%). In addition, 
Edison became 47% black, Gary became 47% black, and 
Graham became 49% black. Despite the projected student 
populations delineated in Defendants' supplemental plan, there 
was no decrease in the percentage of black students in 
attendance at Cleveland and Gary. (DX 7).

At least since January 14, 1975, the Court has not 
directed the School Board to prepare a supplemental plan or to 
take any action with respect to the racial composition of any of 
its schools. Moreover, Plaintiffs did not seek relief or 
enforcement of any obligation imposed by the Court until June 
1994. Furthermore, Plaintiffs did not file written objections 
with the Court respecting the actual or projected enrollments of 
any schools in Hillsborough County. (Stipulation at § 15). In 
1980, Plaintiffs objected to the proposed closing of George 
Washington Junior High School and Glover Elementary; 
however, Plaintiffs' stated reasons were not related to the 
anticipated racial compositions of the affected schools.



65a

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

Since the 1977-1978 school year, Defendants have made 
more than 300 modifications in student assignments to relieve 
overcrowding, to accommodate the opening o f newly 
constructed facilities, or for other reasons, but not specifically 
for the purpose of affecting the race ratio of a school. 
(Stipulation at § 19); (DX 6); (T2 at 15). Although changes to 
attendance patterns have not been made specifically to address 
race ratios at the schools, Defendants have taken into account 
the effect of the change on the racial composition o f the 
schools. (Stipulation at § 22); (T1 at 15, 23).

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

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



66a

contiguous zone surrounding the facility, the School Board 
reassigned preexisting satellite zones to increase the number of 
black students assigned to the new facility. (Stipulation at § 
24); (T1 at 26, 33).

When modifying student assignments to relieve 
overcrowding or in connection with the opening of a new 
facility, the School Board has, since the 1975-1976 school year, 
created non-contiguous zones or satellites in at least seven (7) 
instances. In most instances, students reassigned on a non­
contiguous basis were being transported to their former school 
of assignment before the change. (Stipulation at § 25). 
However, the School Board has never created a new non­
contiguous or satellite zone solely for the purpose of altering the 
racial enrollment at a school, including schools which were 
majority black. (Stipulation § 26); (T1 at 14-15).

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

*1285 The majority to minority ("MTM") transfer 
program which was required by the July 2, 1971, Order has 
existed since the time of the Order. However, this program has 
not been widely publicized in the past. Notwithstanding, the 
School Board recently directed that the program be publicized 
and the school district's staff has announced the program to the 
entire district in recent years. (T1 at 89, 92).

In November 1989, the Hillsborough County 
Superintendent of Schools, Dr. Walter L. Sickles, appointed a 
Task Force to Modify Single Grade Centers to investigate and 
make recommendations for reorganizing the school system so



67a

as to establish middle schools. (Stipulation at § 28). A goal to 
be achieved by any recommended reorganization was the 
retention of a desegregated school system. (Stipuiation at § 29). 
In late 1990 or early 1991, the School Board suggested to 
Plaintiffs' counsel that representatives of the parties and their 
counsel meet to consider the tentative Middle School Plan being 
developed by the Task Force, to determine whether a joint 
submission of the plan could be made to the Court. (Stipulation 
at § 30).

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

Because the school system remained under the Court's 
supervision, Defendants were required to propose their Middle 
School Plan (also known as the "Cluster Plan") to the Court. 
The parties proposed an agreed order to the Court, which was 
approved and entered on October 24, 1991 ("Consent Order"). 
The Court explained that the Consent Order was the "result 
from the school district's comprehensive study of the 
educational advantages of reorganizing its grade structure to 
establish 'middle schools' serving grades 6-8, and that the



68a

School Board's conclusion, following that study, that 
implementation of the middle school grade structure is 
desirable." (1991 Consent Order at 1). The Task Force Report 
was attached to and made a part of the Consent Order. 
(Stipulation at § 36).

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

The Middle School Plan also involved the creation of 
magnet programs at some schools. (Task Force Report at 17- 
25). One of the purposes of developing the magnet programs 
was to help desegregate the schools. Some of the schools which 
were targeted for the programs were predominately black prior 
to 1971 and the School Board anticipated that these schools 
would become "black schools" again if the student *1286 
population was comprised solely of students from the 
surrounding neighborhoods as a result of the Middle School



69a

Plan. (T1 at 66). The programs were designed to perpetuate 
racial balance. (T1 at 66-67).

In the 1991 Consent Order, the Court explained that: 
The Court recognizes and anticipates that there will be 
modifications each year of the projected student 
assignment patterns contained in Appendix 1 to the 
Task Force Report to take account of demographic or 
other changes that occur. In making such modifications, 
the school district should seek to minimize (to the 
extent practicable) the number of schools which deviate 
from the system-wide student enrollment ratios (see 
Task Force Report, at p. 14).

(1991 Consent Order at 5-6). However, in the Task Force 
Report, the School Board predicted that, under the Middle 
School Plan, there would be an increase, from thirty-six (36) to 
forty-six (46), in the number of schools that deviated from the 
20/80 ratio by 10% or higher, and, an increase, from fifty- six 
(56) to seventy-two (72), in the number of schools that deviated 
from the 20/80 ratio 5% or less. Therefore, while the Middle 
School Plan was projected to increase the number of schools 
which had racial compositions closer to the district-wide ratio, 
the plan contemplated an increase in the number of schools that 
significantly varied from the 20/80 ratio.

The 1993 Annual Report reflects that the school system 
was comprised of 151 schools. As of the time of the report, 
there were eight (8) elementary schools and one (1) junior high 
school with student populations which were 5 0% or more black. 
Notably, Cleveland Elementary was 59% black and Robles 
Elementary was 90% black. In addition, there were five (5) 
elementary schools and two (2) junior high schools with student 
populations which were more than 40% black. (DX 7).



70a

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

On June 1,1994, Plaintiffs filed an Amended Motion to 
Enforce and Consent Order (Docket No. 439). In their Motion, 
Plaintiffs complained, for the first time, o f the existence of 
schools where black students constituted at least 40% of the 
total student population. Plaintiffs alleged that the existence of 
these schools was a violation of the 1971 desegregation plan 
adopted by the Court. Plaintiffs also asserted that Defendants 
had not complied with the 1991 Consent Order, which provided 
that, in the event Defendants deviated from the student 
attendance patterns contained in the proposed Middle School 
Plan, they would "seek to minimize (to the extent practicable) 
the number of schools which deviate from the system-wide 
student enrollment ratios." See (1991 Consent Order at 6) 
(citation omitted).

Plaintiffs' Motion pointed out that sixteen (16) schools, 
out of 149, had black student populations comprising 40% or 
more of the total student population. The sixteen (16) schools 
and the percentages o f black students in each school, as o f the 
1995-1996 school year, was as follows: Robles Elementary 
(90%), Edison Elementary (75%), Sulphur Springs Elementary 
(74%), Oak Park Elementary (70%), Graham Elementary 
(67%), Foster Elementary (61 %), Cleveland Elementary (5 7%), 
Shaw Elementary (56%), Witter Elementary (54%), Cahoon 
Elementary (52%), Clair Mel Elementary (49%), West Tampa 
Elementary (47%), DeSoto Elementary (43%), Van Buren 
Junior High (53%), Sligh Junior High (50%), and Dowdell



71a

Junior High (49%). (DX7). Each of these sixteen (16) schools 
were predominately white in 1971. (T1 at 33).

Plaintiffs’ Motion to Enforce was referred to the 
Magistrate Judge for a Report and Recommendation. The 
assigned Magistrate Judge held an evidentiary hearing and 
recommended denial of Plaintiffs' Motion for failure to 
establish a violation of the Court's orders. On November 17, 
1995, this Court deferred ruling on the Report and 
Recommendation, noting that Plaintiffs' Motion focused on 
student assignment. The Court explained that the issues raised 
in connection *1287 with Plaintiffs' Motion to Enforce, 
"demonstrates the need to expand the scope of the inquiry to a 
full fledged determination of whether the Hillsborough County 
school system has in fact achieved unitary status." (Order 
Recommitting Matter to Magistrate, Docket No. 709 at 3). The 
Court further emphasized that, "[a]s it stands now, this Court 
and the parties are attempting to chart a course for the future 
without the benefit o f a sound assessment of where we are 
currently." Id. at 3.

Consequently, the Court ordered:

[A] showing by Defendants as to whether they have 
complied with this Court's 1971 Order regarding the 
factors set forth by the United States Supreme Court in 
Green v. County School Bd. o f  New Kent County, Va. , 
391 U.S. 430, 88 S. Ct. 1689,20 L. Ed. 2d 716 (1968). 
In addition to student assignments, Green and 
Freeman require that faculty and staff assignments, 
transportation, extracurricular activities, facilities and 
resource allocation all be free from racial 
discrimination. In each of these areas, the School Board 
bears the burden of showing that any current imbalance 
is not traceable, in a proximate way, to the prior 
constitutional violation of plaintiffs' rights. Freeman,



72a

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

Id. at 4.

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

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

As a preliminary matter, the Court feels compelled to 
address the concerns regarding the duration of this litigation and 
the passage of time since this Court provided Defendants with 
specific instructions. One theme which Defendants have 
reiterated continuously throughout this litigation has been that, 
even when the schools in the county began to deviate from the 
system-wide race ratios, Plaintiffs, and the Court, failed to 
challenge this occurrence. However, it is clear that Defendants



73a

have been charged with the affirmative duty to desegregate the 
public schools in Hillsborough County to the maximum extent 
practicable. Regardless of the reasons for inaction by Plaintiffs 
and the Court, Defendants remain obligated to fully and 
diligently discharge their duties. Although Defendants were 
entitled to seek release from the Court's supervision at anytime 
after the desegregation plan was implemented, their obligations 
remain until this Court ruled otherwise.

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

DISCUSSION

Vacation or Modification

Plaintiffs' first objection concerns the Magistrate Judge's 
finding that attainment of unitary status constitutes a "changed 
circumstance" *1288 warranting vacation of the 1991 Consent 
Order. The Magistrate Judge explained that modification of a 
consent order in a desegregation case may be considered when: 1 * 3

(1) a significant change in facts or law warrants change
and the proposed modification is suitably tailored to the 
change; (2) significant time has passed and the 
objectives of the original agreement have not been met;
(3) continuance is not longer warranted; and/or (4)



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continuance would be inequitable and each side has
legitimate interests to be considered.

® & R at 64) (citing Jacksonville Branch NAACP  v. Duval 
County Sch. Bd., 978 F.2d 1574, 1578 (11th Cir.1992)). 
Plaintiffs contend that attainment of unitary status cannot 
amount to a changed circumstance warranting modification or 
vacation of a consent order. Plaintiffs argue that, in order to 
disturb a consent order, the change in circumstances must not 
have been foreseen at the time the agreement was reached. 
Plaintiffs cite Rufo v. Inmates o f  Suffolk County Jail, 502 U.S. 
367, 112 S. Ct. 748, 116 L. Ed. 2d 867 (1992), for the 
proposition that a significant change in factual conditions 
cannot be predicated on events actually anticipated at the time 
of entering of the decree. (Br. in Supp. of Pis.' Obj. to R & R at 
12). Plaintiffs argue that, "[fjhere is no evidence—nor could 
defendants present any plausible evidence—that unitary status 
was an unforeseen circumstance when the parties entered into 
the 1991 Consent Order." Id. (emphasis omitted).

Significantly, the respondents in Rufo argued that 
modification of a consent decree should only be allowed when 
a change in facts is both unforeseen and unforeseeable. 502 
U.S. at 385,112 S. Ct. 748. The Supreme Court explained that 
this standard proposed by the respondents would be even less 
flexible than the Swift test,5 a test rej ected by the Supreme Court

5The United States v. Swift & Co., 286 U.S. 106, 52 S. Ct. 
460, 76 L. ED. 2D. 999 (1932), "standard," requiring "[n]othing less 
than a clear showing of grievous wrong evoked by new and 
unforseen conditions," has been limited to the particular facts in that 
case. The Rufo Court explained that, while the statement appears to 
be a hardening of the traditional flexible standard for modification of 
consent decrees when taken out of context, "the 'grievous wrong' 
language of Swift was not intended to take on a talismanic quality, 
warding off virtually all efforts to modify consent decrees." 502 U.S.



75a

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

Furthermore, the Rufo Court acknowledged a district 
court's need to be able to modify a decree in desegregation 
cases; "[bjecause such decrees often remain in place for 
extended periods of time, the likelihood of significant changes 
occurring during the life of the decree is increased." 502 U.S. 
at 380, 112 S. Ct. 748 (noting the upsurge in institutional 
reform litigation since Brown v. Board o f Educ., 347 U.S. 483, 
74 S. Ct. 686, 98 L. Ed. 873 (1954)). Moreover, "federal 
supervision o f local school systems was intended as a temporary 
measure to remedy past discrimination." See Board o f  Educ. o f  
Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, 247, 111 S. 
Ct. 630,112 L. Ed. 2d 715(1991). Accordingly, if the purposes 
of this desegregation litigation, as incorporated in the 1991 
Consent Order, have been fully achieved, then the Order can be 
modified and/or vacated. Id. In the instant case, modification 
is appropriate.

Interrelated Green Factors

Plaintiffs also argue that the Magistrate Judge failed to 
address the relationships among the many Green factors in 
determining that the school system is unitary. Plaintiffs contend 
that the grade restructuring plan being implemented, pursuant

at 379-380, 112 S. Ct. 748.



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to the 1991 Consent Order, is a seven-year plan that should be 
completed in order to fully evaluate its effectiveness and 
constitutional compliance. Consequently, Plaintiffs assert 
modification is inappropriate at this time. (Br. in Supp. of Pis.' 
Obj. to R & R at 5). Plaintiffs argue that many of the Green 
factors are inextricably linked to the grade restructuring * 1289 
plan; therefore, the evaluation of the Green factors will depend 
on the full implementation of the plan and declaration of unitary 
status should be deferred.

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

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

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

® & R at 88 n.56). Consequently, the Court will analyze the 
relationships among the Green factors at the appropriate time.



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Unitary Status

I. Vestiges o f  Past Discrimination

Clearly, the attainment of unitar}' status is the goal of the 
instant desegregation litigation.6 "The objective today remains 
to eliminate from public schools all vestiges of state-imposed 
segregation." Swann, 402 U.S. at 15, 91 S. Ct. 1267.

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

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

A. Defendants' Duty

The question is whether Defendants have successfully 
discharged the duty imposed by the Constitution to eliminate 
the vestiges of de jure  segregation. District courts have been 
directed to assert jurisdiction over school systems which

6In Board of Educ. o f Oklahoma City Pub. Schools, 
Independent School Dist. No. 89 v. Dowell, 498 U.S. 237, 111 S. Ct. 
630, 112 L. Ed. 2d 715 (1991), the Supreme Court expressed 
concerns for the inconsistent usage of the term "unitary." Id. at 245, 
111S. Ct. 630. The term "unitary" in this Order will be used to 
identify a school district that has completely remedied all vestiges of 
past discrimination and has met the mandate of Brown v. Board of 
Educ., 349 U.S. 294, 75 S. Ct. 753, 99 L. ED. 2D. 1083 (1955). Id.



78a

previously practiced de jure segregation to ensure compliance 
with the constitutional mandate of Brown v. Board o f  Educ., 
347 U.S. 483, 74 S. Ct. 686, 98 L. ED. 2D. 873 (1954) ("Brown 
/')•  See Brown v. Board o f  Educ., 349 U.S. 294, 300-01, 75 S. 
Ct. 753, 99 L. ED. 2D. 1083 (1955) ("Brown IF). The courts' 
jurisdiction is to be exercised until a determination can be made 
that the vestiges of past discrimination have been eliminated to 
the maximum extent practicable. See Swann v. Charlotte- 
MecklenburgBd o f  Educ., 402 U.S. 1,15, 91 S. Ct. 1267,28 L. 
Ed. 2d 554 (1971). In order to achieve constitutional 
compliance, a school district is obligated to comply, in good 
faith, with the court's desegregation decree and "take whatever 
[affirmative] steps might be necessary to convert to a unitary 
system in which racial discrimination would be eliminated root 
and branch." Green v. School Bd. o f  New Kent County, 391 
U.S. 430, 437-39, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968). 
Significantly, "[e]ach instance of a failure or refusal to fulfill 
this affirmative duty continues the violation of the Fourteenth 
Amendment." Columbus Bd. o f  Educ. v. Penick, 443 U.S. 449, 
459, 99 S. Ct. 2941, 61 L. Ed. 2d 666 (1979). Consequently, 
Defendants should be released from judicial supervision only 
when the Court finds that: (1) Defendants have eliminated the 
vestiges o f past discrimination *1290 to the maximum extent 
practicable; and (2) Defendants have exhibited a record of full 
and satisfactory compliance with the Court's orders. 
Importantly, Defendants remain subject to the 1971 
desegregation Order until this Court declares that the school 
district has achieved unitary status and has complied with the 
Court's orders in good faith. See Pasadena City Bd. o f  Educ. 
v. Spangler, 427 U.S. 424,439-40, 96 S. Ct. 2697,49 L. Ed. 2d 
599 (1976).

The School Board's responsibility to eliminate the 
vestiges o f the unconstitutional de jure  system "is required in 
order to ensure that the principal wrong of the de jure system, 
the injuries and stigma inflicted upon the race disfavored by the



79a

violation, is no longer present." Freeman v. Pitts, 503 U.S. 467, 
485, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992) . However, "a 
remedy is justifiable only insofar as it advances the ultimate 
objective of alleviating the initial constitutional violation." Id. 
at 489, 112 S. Ct. 1430; Swam?, 402 U.S. at 16, 91 S. Ct. 1267 
(explaining that judicial powers may be exercised only on the 
basis of a constitutional violation). The purpose of the remedial 
action is to eliminate the vestiges of state-compelled dual 
systems, not to remedy racial imbalances unrelated to de jure  
segregation. Id. at 494, 112 S. Ct. 1430. Nevertheless, if 
Defendants have not discharged their affirmative constitutional 
duty to dismantle the dual school system, the school district 
remains in violation of the Fourteenth Amendment.

(i) Racially Identifiable

In terms o f describing the alleged shortcomings of 
Defendants' desegregation efforts, Plaintiffs assert that 
Defendants do not have a working definition of a desegregated 
school. The concept of "racial identifiability" is generally used 
to describe the relationship between the racial composition of 
a particular school and the racial composition of the system as 
a whole. The Supreme Court's decision in Green requires 
school boards to prove that racially identifiable schools are not 
the consequence of past or present discriminatory state action. 
Throughout this litigation, the parties have been unable to agree 
on a definition of a racially identifiable school. Nevertheless, 
Plaintiffs suggest a definition of a racially identifiable school as: 
a school having a population of black students of forty-percent 
(40%) or more.

Defendants argue that a working definition of a 
desegregated school is not required in order to determine 
whether unitary status has been achieved. Defendants 
emphasize that the Court provided numerical goals for the 
Defendants to consider as it aimed at desegregating schools.



80a

However, a particular percentage has not been used as a line of 
demarcation. For example, in the 1971 Order, the Court 
directed Defendants to concentrate on all schools in the county 
having at least a 50% black population. The Court further 
suggested that a white-black ratio of 86%/14% in the senior 
high schools, 80%/20% in the junior high schools, and 
79%/21% in the elementary schools would be the most 
acceptable and desirable form of desegregation. 1971 Order at 
43-44. Notwithstanding, Defendants stress that none of the 
Court's Orders have expressly or implicitly directed Defendants 
to maintain a particular student race ratio at any school, or to 
take any action in response to increased black enrollments in the 
schools.7

In the 1971 Order, the Court explained that the 
Hillsborough County school system was a segregated system. 
"As of October 24, 1969, 74% of the county's white students 
were in 70 white schools, whereas 65% o f the black students 
were concentrated in 21 black schools." (1971 Order at 35). 
Moreover, the Court explained that, as o f October 23, 1970, 
46% of the school system's blacks were attending 15 black 
schools. "Although they comprised only 19% of the student 
population, 13,606, or 69%, were in 28 schools at *1291 least 
50% black. On the other hand, 69% of the white students— 
57,869 out of 83,474-attended 65 schools either all white or at 
least 95% white." Id.

’Defendants' position is not entirely accurate. As discussed 
above, in 1974, the Court directed Defendants' attention to the 
schools with increasing black enrollments and ordered Defendants to 
submit a supplemental desegregation plan. Moreover, the 1991 
Consent Order provided that any "modifications" in student 
assignment patterns resulting from demographic or other changes 
must be made with an eye towards minimizing, to the extent 
practicable, the number of schools which deviate from the system- 
wide student enrollment ratios. See (1991 Consent Order at 6).



81a

After the Court entered the 1971 Order, 97% of 
Hillsborough County elementary school students attended 
racially balanced schools, according to Plaintiffs.8 In 
comparison, Plaintiffs argue, only 69% of Hillsborough County 
elementary school students attended racially balanced schools 
in 1995. Moreover, Plaintiffs point out that, for all but two (2) 
years between 1971 and 1988, 90% of junior high school 
students attended racially balanced schools; however, as of 
1995, the percentage has dropped to 75%.9

The Constitution does not require that every school in 
every community must always reflect the racial composition of 
the school system as a whole. See Swann v. Charlotte- 
Mecklenburg Bd. o f  Educ., 402 U.S. 1,24, 91 S. Ct. 1267,28 L. 
Ed. 2d 554 (1971). The Courts have consistently warned 
against the application of an inflexible standard of having "no 
majority of any minority" in a school.

Neither school authorities nor district courts are 
constitutionally required to make year-by-year 
adjustments o f the racial composition of student bodies 
once the affirmative duty to desegregate has been 
accomplished and racial discrimination through 
official action is eliminated from the system. This does 
not mean that federal courts are without power to deal 
with future problems; but in absence of a showing that

8Plaintiffs have used Dr. Shelley's definition of "racially 
unbalanced" schools, which includes schools with an African- 
American population 40% or above.

9Although Plaintiffs' statistics are significant, it should be 
noted that the October 1969, figures reflect the percentages of white 
and black students, whereas, Plaintiffs' figures represent the entire 
student population.



82a

either the school authorities or some other agency of the 
State has deliberately attempted to fix or alter 
demographic patterns to affect the racial composition of 
the schools, further intervention by a district court 
should not be necessary.

Id. at 31-32, 91 S. Ct. 1267. Accordingly, it is clear that 
Defendants had no continuing duty to maintain a particular 
black to white student ratio on a school-by-school basis over the 
expansive time period of this litigation, including the 80%/20% 
ideal set forth in the 1971 Order. See id. at 24, 91 S. Ct. 1267 
(disapproving an approach to desegregate schools which 
requires, as a matter of constitutional right, any particular 
degree of racial balance or mixing).

Nevertheless, the district-wide ratios are an important 
starting point to analyze Defendants' fulfillment of its 
obligations. "In most cases where the issue is the degree of 
compliance with a school desegregation decree, a critical 
beginning point is the degree o f racial imbalance in the school 
district, that is to say a comparison of the proportion of majority 
to minority students in individual schools with the proportions 
o f the races in the district as a whole." Freeman, 503 U.S. at 
474,112 S. Ct. 1430. Moreover, although schools which have 
become virtually all one-race "require close scrutiny," they are 
not per se unconstitutional. Swann, 402 U.S. at 26, 91 S. Ct. 
1267. However, their existence in a school system with a 
history of de jure  segregation, establishes a presumption that 
they exist as a result of discrimination and the burden of proof 
shifts to the School Board. Id. "The school district bears the 
burden of showing that any current [racial] imbalance is not 
traceable, in a proximate way, to the prior violation." Freeman, 
503 U.S. at 494, 112 S. Ct. 1430.

The Court finds that Plaintiffs' definition of a racially 
identifiable school is useful and fair. A school that has 20%



83a

more black students than that of the district-wide composition 
indicates that the school has deviated significantly from the 
system-wide norm. While the phrase "racially identifiable" is 
useful as a descriptive term, it should not be accorded more 
weight than it deserves.10 * A school system can have racially 
identifiable schools and still be a unitary school system. 
Moreover, if  the racial identifiability is unrelated to de jure 
segregation, a court imposed remedy is not justified. However, 
the fact *1292 that a school deviates from the system-wide 
ratio should, at least, cause some concern and an evaluation by 
the School Board (the authority charged with the responsibility 
to desegregate the schools to the maximum extent possible), 
must ensue.11 In other words, while racial identifiability of a 
school is relevant, it does not define the standard for 
determining whether the School Board has discharged its 
affirmative duty or has achieved unitary status.

(ii) Demographics

Plaintiffs challenge the Magistrate Judge's evaluation of 
Defendants' evidence concerning the change in demographics 
in Hillsborough County. Plaintiffs argue that, not only is the 
change in demographics in Hillsborough County far less

10The Court will use the phrases "racially identifiable" and 
"racially imbalanced" or "racially unbalanced" interchangeably to 
generically represent schools which are a source of concern.

“The Supreme Court has emphasized that, "the existence of 
some small number of one-race, or virtually one-race, schools within 
a district is not in and of itself the mark of a system that still practices 
segregation by law. The district judge or school authorities should 
make every effort to achieve the greatest possible degree of actual 
desegregation and will thus necessarily be concerned with the 
elimination of one-race schools." Swann, 402 U.S. at 26, 91 S. Ct. 
1267.



84a

dramatic and more incremental than in Freeman, but the 
identification of pure demographic change is further 
complicated by the implementation of a Middle School Plan.12 
(Br. in Supp. of Pis.' Obj. to R & R at 15). Plaintiffs maintain 
that the Middle School Plan requires considerable change and 
that the statistical information on the precise demographic effect 
will not be discernible until the 2000 census is available. 
Moreover, Plaintiffs argue that Defendants have acted, or failed 
to act, in a number of ways which has contributed to the racial 
identifiability of the Hillsborough County schools. Plaintiffs 
assert that the issue is whether Defendants bear any 
responsibility for the racial identifiability and, if so, the extent 
to which Defendants are responsible.

As noted above, there are sixteen (16) schools which 
have become focal points for determining whether or not the 
school system is unitary.13 The percentages o f black students in 
each of these sixteen (16) schools, as o f the 1972-73 school 
year, were as follows: Robles Elementary (24%), Edison 
Elementary (36%), Sulphur Springs Elementary (19%), Oak 
Park Elementary (23%), Graham Elementary (35%), Foster 
Elementary (21%), Cleveland Elementary (26%), Shaw 
Elementary (15%), Witter Elementary (18%), Cahoon 
Elementary (21%), Clair Mel Elementary (18%), West Tampa 
Elementary (14%), DeSoto Elementary (35%), Van Buren 
Junior High (17%), Sligh Junior High (20%), and Dowdell

12In Freeman, the subject school system had 5.6% black 
students in 1969 and 47% black students by 1986. 503 U.S. at 475, 
112 S. Ct. 1430. In the case at hand, the increase in black students 
ages 0 to 17 has only been from 17.4% in 1970, to 19.4% in 1990.

13The 16 schools represent the degree of racial imbalance in 
the school district, i.e., approximately 10% of the schools are racially 
identifiable. Notwithstanding, there are additional schools which are 
a source of concern, as discussed below.



85a

Junior High (14%). (DX 7). In 1970, the total population in 
Hillsborough County was 490,265, of which, 422,119 were 
white and 66,648 (13.5%) were black. (DX 2 Table 1). During 
the same year, the total population between the ages of 0 to 17 
years old was 164,278, of which, 135,344 were white, and 
28,527 (17.4%) were black.14

However, the latest figures used in this litigation reflect 
the following percentages of black students attending the 
sixteen (16) schools, as of the 1995-1996 school year: Robles 
Elementary (90%), Edison Elementary (75%), Sulphur Springs 
Elementary (74%), Oak Park Elementary (70%), Graham 
Elementary (67%), Foster Elementary (61%), Cleveland 
Elementary (57%), Shaw Elementary (56%), Witter Elementary 
(54%), Cahoon Elementary (52%), Clair Mel Elementary 
(49%), West Tampa Elementary (47%), DeSoto Elementary 
(43%), Van Buren Junior High (53%), Sligh Junior High (50%), 
and Dowdell Junior High (49%). (DX 7). In 1990, the total 
population in Hillsborough County was 834,054, of which, 690, 
352 were white and 110,283 (13.2%) were black. (DX 2 Table 
1). During the same year, the total population between the ages 
of 0 to 17 years old was 202,274, of which, 152,900 were white, 
and 39,163 (19.4%) were black.15

*1293 Plaintiffs assert that, since 1971, there has been 
relatively little change in the racial composition of the 
Hillsborough County School District as a whole and by grade 
level, except at the high school level. (Pis. Proposed Findings 
of Fact and Conclusions of Law at 12). Plaintiffs contend that, 
while most schools in Hillsborough County reflect the district­

l4Less than 1% were classified as nonwhites.

^Approximately 5% of the "school-age" population was 
classified as nonwhites.



86a

wide student racial composition, the schools with 40% or more 
black student populations should be considered racially 
identifiable because they are approximately 20 percentage 
points above the system-wide ratio. Id. Moreover, Plaintiffs 
point out that, the majority of these schools are 30 percentage 
points or more above the district-wide black student racial 
composition. Id.

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

Defendants' recitation of the law is correct. "Racial 
balance is not to be achieved for its own sake." Freeman, 503 
U.S. at 494, 112 S. Ct. 1430. In Freeman, Supreme Court 
evaluated a district court's role in supervising a school system 
where demographics are the cause of racial imbalances and 
stated:

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



87a

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

The Court is not convinced that a shift in demographics 
and residential patterns explains the racial imbalance in the 
Hillsborough County School system. Defendants have failed to 
adequately discharge their affirmative duty to eliminate the dual 
system "root and branch." While the Court finds that the racial 
imbalances in the schools are not the result of a deliberate 
attempt by Defendants to fix or alter demographic patterns to 
affect the racial composition of the schools, Defendants' apathy 
over the years demonstrates a lack of good faith compliance.16 
Moreover, because Defendants failed to fully discharge their 
affirmative duty to desegregate the school system, the district 
has not been desegregated to the maximum extent practicable. 
Defendants have failed to prove that the racial imbalances are 
not traceable, in a proximate way, to the past de jure 
segregation.

B. Student Assignments

All of the schools in Hillsborough County were

16After Defendants filed their 1974 Annual Report, which 
indicated that four (4) schools had become 40% black and one (1) 
school had become 50% black, the Court directed Defendants to file 
a supplemental plan designed to insure that "the requirements of the 
Court's previous orders insofar as they relate to Lee Elementary 
School[, which had become 50% black,] will be complied with as of 
the beginning of the 1975-76 school year." Order of January 14, 
1975. In the same order, the Court directed the Defendants' attention 
to the other schools which had become 40% black. Id. Notably, this 
Court was expressing its concerns to Defendants only three (3) 
school years after implementation of the desegregation plan.



88a

desegregated as of the 1971- 1972 school year. Furthermore, 
each of the sixteen (16) schools, which are currently considered 
racially imbalanced, was predominately white following the 
1971 desegregation Order. (T1 at 33). Since that time, the 
School Board has implemented numerous attendance changes 
which altered the racial composition of the schools district­
wide. However, these sixteen (16) schools have increased their 
black student populations relatively quickly after the 1972-1973 
school year and their enrollments have become disproportionate 
to the system-wide race ratios. Although *1294 Defendants 
used projected attendance figures to calculate the expected 
improvements to the race ratios of the schools, the Court will 
focus on the actual changes to evaluate the cause o f the racial 
imbalance in the sixteen (16) schools.

(i) Attendance Zone Adjustments 

Robles Elementary

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



89a

Cleveland Elementary

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

Edison Elementary

The actual racial composition of students in attendance 
for the 1972-1973 school year was 36% black and 64% white. 
The first boundary change affecting Edison's attendance zone 
was implemented for the 1982-1983 school year. Twenty-one 
(21) white and ninety-four (94) black students were transferred 
from Edison to Claywell Elementary. The actual racial



90a

composition of students in attendance for the 1981 -1982 school 
year was 55% black and 45% white, whereas after the change 
was made, the actual racial composition of students in 
attendance for the 1982-1983 school year was 50% black and 
50% white. No other boundary changes were implemented that 
would have affected Edison's attendance zone. The actual racial 
composition of the students in attendance for the 1995-1996 
school year was 75% black and 25% white.

Graham Elementary

The actual racial composition of the students in 
attendance for the 1972-1973 school year was 35% black and 
65% white. The first boundary change affecting Graham's 
attendance zone was implemented for the 1988-1989 school 
year. Graham received thirteen (13) black first through sixth 
graders from the Gorrie satellite, pursuant to a student 
assignment change. The actual racial composition o f students 
in attendance for the 1987-1988 school year was 63% black and 
37% white, whereas after the change was made, the actual racial 
composition o f the students in attendance for the 1988-1989 
school year was 64% black and 36% white. No other boundary 
changes were implemented that would have affected Graham's 
attendance *1295 zone. The actual racial composition of the 
students in attendance for the 1995-1996 school year was 67% 
black and 33% white.

Oak Park Elementary

The actual racial composition of the students in 
attendance for the 1972-1973 school year was 23% black and 
77% white. The first boundary change affecting Oak Park's 
attendance zone was implemented for the 1979-1980 school 
year. During the 1979-1980 school year, there was a satellite 
transfer made from Oak Park to DeSoto Elementary and there 
was a satellite transfer from Gary to Oak Park Elementary.



91a

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

Defendants do not dispute the fact that no boundary 
changes were specifically made to reduce the racial imbalance. 
Instead, Defendants attribute the increase in the black student 
populations at the sixteen (16) schools to demographic changes 
in attendance zones and contend that, as a result, no changes 
were required. For example, Defendants argue that the 
percentage of black school-age children living in the Robles 
attendance zone increased from 13% in 1970 to 31.3% in 
1980.17 Defendants argue that the Robles attendance zone 
subsequently experienced a drastic increase in the percentage of 
black school-age children from 31.3% in 1980 to 71.4% in 
1990. Census data is unavailable for changes occurring after 
1990. Notwithstanding, Defendants assert that when they have 
made changes to the attendance patterns for reasons other than 
race, the racial composition of the schools was a paramount 
consideration.

17The phrase "school-age children" includes children 0 to 17 
years old.



92a

Conversely, Plaintiffs maintain that there has been 
relatively little change in the racial composition of the 
Hillsborough County school district as a whole since 1971. 
Plaintiffs argue that during the period when the number of 
racially identifiable schools increased, Defendants opened and 
closed schools which created new attendance zones. Plaintiffs 
contend that, when the initial decisions were made, for example, 
to construct a new school, the principal concern should have 
been desegregation; the problems of overcrowding could have 
been adjusted accordingly. Plaintiffs argue that Defendants' 
obligations include, inter alia, considering the construction and 
abandonment of school facilities, and drawing attendance zones 
so as to affirmatively promote desegregation of the school 
system. Plaintiffs argue that mere neutrality is not an option.

In addition, Plaintiffs assert that over the course of this 
litigation, Defendants altered existing attendance zones and 
redeployed inner-city satellite zones from school to school. 
Consequently, Plaintiffs argue, Defendants were provided 
with an opportunity to address existing racial identifiability in 
the school system; however, Defendants failed to take 
advantage of those opportunities. Furthermore, Plaintiffs 
emphasize that the attendance zones were changed infrequently 
for the schools which are now racially identifiable; therefore, 
Defendants' failure to act has contributed to this racial 
imbalance in the schools. Moreover, Plaintiffs argue that, other 
techniques used to improve the racial compositions at schools 
in Hillsborough County, such as the assignment and 
reassignment of satellite zones, were not used to reduce the 
percentages o f black students at schools such as Robles. As a 
result, Plaintiffs assert that this Court must determine whether 
Defendants have been affirmatively seeking to integrate the 
Hillsborough County school system with respect to all of the 
factors outlined in Green, from 1971 until the present.



93a

*1296 Undoubtedly, Defendants have been effective in 
desegregating the Hillsborough County school system. 
Hillsborough County is the 12th largest school district in the 
country. For the 1996-1997 school year, the county consisted 
of 149 public schools. Defendants point out that a majority of 
the schools have remained within a plus or minus 10% variance 
from the 80/20 race ratio suggested as ideal by the Court in 
1971.18 See 6th Annual Report at 42. Moreover, Defendants 
argue that, although the modifications have been made for 
reasons other than race, Defendants had no obligation to 
improve racial balances if the imbalances were not caused by 
either prior or present action of the School Board.

Defendants assert that, upon implementing their 
desegregation plan, none of the schools in Hillsborough County 
had a black majority population for the 1971-1972 school 
year.19 Defendants point out that, although a few elementary 
schools began to increase their black population in the 
following years, the School Board implemented a supplemental 
plan with the Court's approval.20 By the end of 1974, no

18The 6th Annual Report submitted by Defendants provides 
the following statistics for the 1996-1997 school term: 18 schools 
had lower than 10% black student population; 30 schools had 
between 10-15% black student population; 46 schools had between 
16-24% black student population; 18 schools had between 25-30% 
black student population; 14 schools had between 30-39% black 
student population; 9 schools had between 40-49% black student 
population; 14 schools had 50% or higher black student population.

19As of October 27, 1971, there were no majority black 
schools among the 122 schools in the district and only one (1) school 
had more than a 40% black student population. (DX 7).

20It should be noted that the supplemental plan was 
developed at the Court's insistence.



94a

schools had a black majority population.21 Defendants argue 
that, from that point forward, the School Board has endeavored 
to maintain a desegregated school system in Hillsborough 
County. Defendants argue that, Plaintiffs' demand that: "all 
racially identifiable schools be eliminated," is contrary to the 
mandates of the Constitution. Defendants argue that they are 
not required to maintain a specific ratio at each school in the 
County.

Defendants admit that the schools which are now 
majority black schools and which are the focus of the Plaintiffs' 
Motion to Enforce Order, have steadily increased their black 
population over the course of this litigation; however, 
Defendants attribute this increase to the change in 
demographics, rather than, any action or inaction by the School 
Board.22 Consequently, Defendants argue that they were not 
required to take affirmative action. Defendants contend that the 
only issue is whether the racial imbalances are traceable to the 
prior violation.

Defendants' Expert

During the 1996 unitary status hearing, Defendants' 
expert, Dr. Clark, testified about the differences in growth rates 
between the black and white populations of children 0 to 17 
years old. Dr. Clark noted that, between 1970 and 1980, the 
white 0 to 17 population grew by under 3% while the black 0 to

21The 1975 Annual Report reflects that five (5) schools out 
of 128 had student populations which were in excess of 40% black. 
However, by the 1975-76 school year, one (1) school, Cleveland 
Elementary, had become a black majority school at 55%.

22Using Robles Elementary as an example, the school was 
43% black in 1979-80; 75% black in 1984-85; 80% black in 1986-87; 
85% black in 1990-91; and 90% black in 1993. See (DX 7).



95a

17 population grew by almost 16%, five times as fast. (T2 at 
20). From 1980 to 1990, the growth of the black population 
was almost twice as fast as the growth of the white population. 
Id. Dr. Clark explained that the growth in both segments o f the 
population, as a whole, makes it possible to keep racial balance 
within a reasonable boundary. Id. However, according to Dr. 
Clark, the differential growth rate of the black 0 to 17 
population indicates that the black school-age population was 
increasing proportionately faster, making it more difficult to 
keep the schools racially balanced. Id. at 21.

Significantly, Dr. Clark testified that changes in the 
populations did not occur uniformly across the county. Dr. 
Clark explained that Hillsborough County experienced a 
significant loss of white population *1297 and a significant 
gain o f black population in the inner-city area. Id. at 25. 
Therefore, according to Dr. Clark, any schools within the inner- 
city areas that are neighborhood schools, will reflect racial 
compositions similar to that of the composition o f the inner-city 
areas. Dr. Clark testified that in 1970, there were about six (6) 
or seven (7) census tracts that had a 95% black 0 to 17 age 
population, whereas, in 1990, there were only three (3) census 
tracts with a 95% black 0 to 17 age population. Id. at 33. 
Nevertheless, Dr. Clark emphasized that the tracts with a 50% 
black 0 to 17 age population increased by about 40% between 
1970 and 1990. Id. at 33-34.

Dr. Clark testified that, the shifts in the inner-city 
populations made it very difficult to adjust attendance 
boundaries to maintain a student body composition within a 
plus or minus 20% range of the district-wide ratios. Id. at 35. 
Dr. Clark explained that, as the areas with a 50% black 0 to 17 
age population expand, as it has done in the inner-city of 
Hillsborough County, each school within those areas is 
impacted. Id. According to Dr. Clark, as the School Board 
attempts to make adjustments to the schools within the areas



96a

with a 50% or greater black population, and because these areas 
have expanded to encompass many different school attendance 
zones, each adjustment makes it increasingly difficult for the 
School Board to make additional adjustments that will 
effectively improve the race ratios in the other schools in those 
areas. Id. Defendants' Exhibit 8 geographically depicts the 
attendance zones o f the racially imbalanced schools and clearly 
demonstrates that the schools which have become racially 
identifiable are located in the same vicinity as other schools 
with high black enrollments. Although there are additional 
adjustments which can be made to improve racial balance, the 
improvement would be at the expense of neighboring schools 
which are on the verge of becoming racially identifiable.

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

In 1970, the Robles attendance zone was comprised of 
2,247 children between the ages of 0 to 17. (DX 2 Table 4). 
Only 292(13%) of those children were black. Id. In 1980, the 
Robles attendance zone was comprised of 2,496 children 
between the ages of 0 to 17. Id. During this time, 781 (31.3%) 
of those children were black. Id. Significantly, by 1990, the 
Robles attendance zone was comprised of 2,875 children 
between the ages of 0 to 17, by this time, 2054 (71.4%) of those 
children were black. Id. Dr. Clark emphasized that, while the 
total population of an area was not experiencing dramatic 
increases, the black population of school-aged children was 
increasing dramatically. Dr. Clark also pointed out that the 
satellite zone originally assigned to Robles was only 0 to 5% 
black school-aged children. However, in 1990, the satellite



97a

area, although no longer maintained, was almost entirely 75- 
95% black school-aged children and would have further 
increased the proportion of black students enrolled at Robles if 
it had not been removed. (T2 at 46); (DX 2 Table 4; Figure 
10).

In 1970, Cleveland's attendance zone was comprised of 
1,657 children ages 0 to 17. (DX 2 Table 4). During this time, 
only 46 (2.8%) of these school-aged children were black. Id. 
In 1980, the number of school-aged children in the attendance 
zone decreased to 1,544; however, bythis time, 639 (41.3%) of 
the school-aged children were black. Id. In 1990, the number 
of school-aged children in Cleveland's attendance zone 
increased slightly to 1,578, and the black school-aged 
population increased to 654 (41.4%). Id. Dr. Clark explained 
that in 1970, there were a few blocks with in Cleveland's 
attendance zone that were between 0 and 5% and a few blocks 
that were comprised o f between 5 and 25% black school-aged 
children. (Tr 2 at 40). By 1980, the black school-aged 
population was still concentrated in the same few blocks; 
however, by this time, those blocks were comprised o f between 
75 to 95% black school- aged children. Id. at 41. In 1990, 
those few blocks were not as concentrated with a black school- 
*1298 aged population; however, the population spread out 
through a large number of blocks which were primarily 50 to 
75% black 0 to 17 year old children. Moreover, black school- 
aged children made up of 95 to 100% of some of the 
neighborhood blocks closest to the school. Id.; (DX2 Figure 6).

Dr. Clark's testimony and report on the Demographic 
Change and School District Impacts in Hillsborough County 
(DX 2) highlights the changes in the attendance zones for the 
racially imbalanced schools. Dr. Clark described the increases 
in the black school-aged children in the attendance zones and 
concluded that the shift in the residential patterns in the inner- 
city of Hillsborough County accounts for the racial imbalances



98a

in these schools. Notwithstanding, the Court is compelled to 
question the reliability of Dr. Clark's statistics.

There are significant problems with the statistics used to 
explain the racial imbalances in the sixteen (16) schools under 
consideration. Defendants' statistics encompass a larger 
segment of the population than is useful to explain the 
deviations in the racial compositions of the unbalanced schools. 
Specifically, Defendants rely on Dr. Clark's use of school-aged 
children from ages 0-17 to explain enrollment ratios at the 
elementary schools; however, almost one-half of the children 
included in this group would not, in fact, be attending an 
elementary' school.23 Moreover, while a few blocks in an 
attendance zone may reflect black school-age populations as 
high as 95%, those few blocks only represent a small proportion 
of the entire attendance zone. Finally, Dr. Clark's analysis does 
not address Defendants' initial decisions to draw attendance 
zones, decisions not to act when it was apparent that those 
zones were inappropriate, or other School Board decisions, such 
as, location of new schools, or implementation (or lack thereof) 
of desegregation tools.

(ii) Inflated Statistics

The sweeping nature of Defendants' statistics is of 
particular concern. Dr. Clark's testimony placed great emphasis 
on the increase in the percentage of neighborhood blocks which 
were comprised of a high concentration of black school-aged 
children within each of the schools' attendance zones.

23The Court acknowledges that more precise figures were not 
available; however, the fact that the 0 to 17 age group logically 
encompasses children too young and too old to attend elementary 
schools, counsels against placing great weight on the use of these 
statistics.



99a

However, these statistics alone fail to adequately explain the 
racial compositions in these schools. For example, if  the 
attendance zone is made up of fifty (50) neighborhood blocks, 
and three (3) of those blocks are 95 to 100% black, this still 
represents a small number of black students within the 
attendance zone. Moreover, while a certain block may have 
been as high as 100% black, that block may have only had four 
(4) school-aged children living on that block. To intensify the 
problem, three (3) of those children may have been high school, 
rather than, elementary school-aged children. While the 
shortcomings of Defendants statistics do not evidence deliberate 
discriminatory action, Defendants "bear[ ] the burden of 
showing that any current imbalance is not traceable, in a 
proximate way, to the prior violation." Freeman, 503 U.S. at 
494, 112 S. Ct. 1430. Therefore, even though Defendants' 
statistics may look significant at first glance, the Court is 
concerned about the reliability of those numbers.

A very real example is Dr. Clark's testimony regarding 
Cleveland Elementary. Dr. Clark pointed out that, in 1970, a 
few blocks in the attendance zone were comprised of between 
5 and 25% black students aged 0 to 17. The black enrollment 
at Cleveland was around 20% in 1971. Significantly, over the 
next couple o f years, Cleveland's black enrollment soared up to 
40% and then, after a few more years, to 60%. (T2 at 40); (DX 
2 Figure 6). Dr. Clark testified that, in 1970, there were a few 
blocks in Cleveland's attendance zone which were between 0 
and 5% black and a few blocks which were between 5 and 25% 
black. To explain the correlation between the black populations 
in these neighborhood blocks and the black enrollment at 
Cleveland Elementary, Dr. Clark testified that, "[s]o that's-we 
would expect, then, that—if those children are going to the 
school there, we would expect the school to be somewhat in 
that range, and indeed it is. That's about what the percentage of 
black *1299 enrollment is, and we're seeing it in the school." 
(T2 at 41). In other words, Dr. Clark concluded that, because



100a

there were a few neighborhood blocks in Cleveland's attendance 
zone that were as concentrated as 25% black, it explains why 
the black enrollment at Cleveland Elementary was around 20% 
in 1971 and then continued to climb as the concentration in the 
blocks increased. Interestingly, the entire attendance zone was 
comprised of only 46 (2.8%) black school-aged children during 
this time.

A cursory inspection of Dr. Clark's graphical 
representation of these figures, reveals that these blocks with a 
high concentration of black school-aged students, represent a 
small portion of the entire attendance zone.24 See (DX2 Figure 
6). Moreover, Dr. Clark qualified his answer by saying, "if 
those children are going to the school there." However, in all 
likelihood, there would be several children who are outside of 
the elementary school age group; therefore, they would not, in 
fact, be attending that school. The fact that a small portion of

24While there has been no representation that the graphical 
representations have been drawn to scale, the numbers behind the 
graphics produce the same conclusion. For instance, Defendant's 
Exhibit 2, Figure 6, graphically represents that there are a few blocks 
within Cleveland's attendance zone that are comprised of between 5 
to 25% black school-aged children. However, in sheer numbers, 
there were only 46 (2.8%) black school-aged children, out of 1,657 
school-aged children, in Cleveland's entire attendance zone. Of 
course, some of those children were not attending the elementary 
school because the data encompasses 0 to 17 year olds. Although Dr. 
Clark testified that the 20% black population at Cleveland during the 
1971-1972 school year was expected, it would appear that a 2.8% 
black student population would have been more fitting. Moreover, 
the fact that statistics have not been provided regarding the 
concentration of white school-aged children in the neighborhood 
blocks within an attendance zone, to compare to the concentration of 
black school- aged children, creates additional doubt as to the 
reliability of Defendants' statistical arguments.



101a

the attendance zone has a high percentage of minority school- 
aged children does not explain why the total black enrollment 
of those elementary schools correlates to those few blocks with 
high percentages of minorities; especially since a percentage of 
those children in the attendance zone would not be attending the 
school in question.25 Furthermore, it should have been quite 
easy for Defendants to make adjustments to combat the sudden 
increases in minority enrollment if the increases resulted from 
a few concentrated blocks within the attendance area.26

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

25The Court is constrained to interpret Defendants' data to 
represent small percentages of the attendance zones in question. 
Because there are no statistics available to the Court which denote 
the number of children represented by these neighborhood blocks or 
the number of elementary-&gQ<l school children within each 
elementary school attendance zone, it is difficult to accurately speak 
in terms of small or large percentages of these attendance zones.

26The key question is whether Defendants were required to 
take steps to combat those increases after a racially neutral system of 
student assignment had been established. While the failure to make 
additional adjustments may not evidence deliberate racial 
discrimination, Defendants' failure to take "whatever steps 
necessary" is relevant to Defendants' good faith compliance, which 
will be discussed below.



102a

The racial composition at Robles is also illustrative of 
the deficiencies in Dr. Clark's explanation. For instance, in 
1970, Robles' entire attendance zone was comprised of 2,247 
children ages 0 to 17. During this time, only 292(13%) of these 
0 to 17 year old children were black. However, the black 
enrollment at Robles Elementary in the early 1970's rose from 
around 20% to 30%. In 1980, the number of school-aged 
children in the attendance zone increased to 2,496. By this 
time, 781 (31.3%) of the school-aged children were black. 
However, black enrollment at Robles in the early 1980's was 
between 50 and 60%, and climbing. In 1990, the number of 
school-aged children in Robles' attendance zone increased to 
2,875, and the black school- *1300 aged population increased 
to 2054 (71.4%). However, black enrollment at Robles was 
over 80% black in 1990 and was approaching 90%.

Certainly, the significant increase in black school-aged 
children residing in Robles' attendance zone over the course of 
this litigation explains why the black enrollment in that school 
continued to increase. However, even if the Court were able to 
ignore the deficiencies in Dr. Clark's statistics which he used to 
explain the increase in black students at the elementary school 
level, the abiding question is: why wasn't the attendance zone 
adjusted, at least, initially?27 Although Dr. Clark testified that 
various neighborhood blocks within the attendance zone had 
high percentages of black school-aged students, Defendants 
have not provided the Court with information on how many of 
those students actually attended elementary school. 
Significantly, in 1980, black school-aged students comprised 
only 31.3% of Robles' entire attendance zone; however, the 
actual enrollment at Robles during the 1980-1981 school year

27By 1975 five (5) schools out of 128 had black enrollments 
of 40% or more: Cleveland, Edison, Gary, Graham, and Palm River 
Elementary.



103a

was 51% black. Notably, Defendants took no affirmative steps 
to address the fact that Robles had now crossed the 50% mark 
and no longer reflected the ideal composition suggested by the 
Court. Especially since the entire attendance zone was only 
31.3% black and the elementary school was already 51 % black.

Plaintiffs' Expert

Plaintiffs' expert, Dr. Shelley, studied the disparities 
between the percentage of black children 0 to 17 years old and 
the actual black enrollment in the five (5) schools which 
became racially unbalanced in the 1970s. Dr. Shelley 
subtracted the percentage of black children 0 to 17 years old 
living in a particular attendance zone from the percentage of 
black children actually attending the elementary7 school in that 
zone. (T4at51). For example, in 1970 Cleveland Elementary's 
attendance zone was comprised of 2.8% black children, but the 
actual attendance at Cleveland for the 1971-1972 school year 
was 18% black. Thus, Dr. Shelley testified that the difference 
between these two percentages represents a disparity of 
approximately 15%. During the 1971- 1972 school year, the 
disparities were as follows: Cleveland (15%), Edison (17%) 
Graham (10%), Oak Park (15%), and Robles (12%). In 1980, 
the disparities among these same schools were as follows: 
Cleveland (24%), Edison (14%) Graham (17%), Oak Park (4%), 
and Robles (20%). Finally, the disparities in 1990 were: 
Cleveland (13%), Edison (-2%) Graham (28%), Oak Park (4%), 
and Robles (14%). (PX2 Table 5).

Dr. Shelley testified that if natural demographic change 
was the cause o f the racial imbalance in these schools, it would 
be reasonable to expect that the disparities would be consistent 
at these schools. (T4 at 53). In other words, if  the natural 
demographic changes were the only cause of imbalance in these 
schools, the amount that the actual attendance of black students 
exceeds the total number of black children in each attendance



104a

zone would be fairly consistent from one school to another. Id. 
at 56. Dr. Shelley explained that if  demographic change is the 
cause of these imbalances, then "there is no reason to believe 
that the demographic factors such as birth rates are likely to 
differ substantially from one attendance area to another." Id. at 
57. Moreover, Dr. Shelley noted, "[wjithout evidence that 
there's a substantial disparity between these school attendance 
areas in terms of things like birth rates, we would expect there 
to be a consistent pattern of difference between the school 
attendance areas among these identifiable schools." Id.

Dr. Shelley testified that the degree of disparity during 
the 1971 -1972 school year was relatively small. Id  at 5 8. The 
range was from Graham with 10% to Edison with 17%. Dr. 
Shelley explained that this 7% difference was the degree of 
consistency that he expected, because it should have been, and 
remained, consistently small. Id. Notably, this was only one 
(1) year after the desegregation Order was issued, and, 
undoubtedly, the best year, in terms of desegregation, for the 
Hillsborough County school *1301 system with regards to 
student assignments. However, by 1980, the disparity increased 
to a range of 4% (Oak Park) to 24% (Cleveland). Id. By 1990, 
the disparity increased from -2% (Edison) to 28% (Graham). 
Id. Dr. Shelley testified that, unless the rates for births, deaths, 
migration, and other factors increased dramatically by 
attendance zone, there should not have been a dramatic increase 
in these disparities. Id. Although Defendants provided 
evidence that birth rates among African-Americans had 
increased disproportionately to those of whites, according to Dr. 
Shelley, the increase should have still produced consistent 
results among all African-Americans in these attendance zones.

Unfortunately, Defendants have taken the position that 
they were not required to make any adjustments if  the School 
Board had not caused the racial imbalance. While this may be 
an appropriate legal argument to advance in unitary status



105a

proceedings in 1996, it appears as though Defendants 
imprudently incorporated this argument into their policy making 
since the 1970's. However, a part}' to a court order or decree 
must abide by its terms until it is later declared improper or 
unconstitutional. Defendants have always been charged with 
the obligation to eliminate the vestiges of past discrimination to 
the maximum extent practicable. See Davis v. Board o f  School 
Commissioners o f  Mobile County, 402 U.S. 33, 37, 91 S. Ct. 
1289,28 L. Ed. 2d 577 (1971) ("Having once found a violation, 
the district judge or school authorities should make every effort 
to achieve the greatest possible degree of actual desegregation, 
taking into account the practicalities of the situation.") 
(emphasis added); Green v. County School Bd. o f  New Kent 
Co., 391 U.S. 430, 437-38, 88 S. Ct. 1689, 20 L. Ed. 2d 716 
(1968) ("School boards . . . operating state-compelled dual 
systems were nevertheless clearly charged with the affirmative 
duty to take whatever steps might be necessary to convert to a 
unitary system in which racial discrimination would be 
eliminated root and branch.") (emphasis added). Furthermore, 
the Supreme Court has stated that, "[t]he remedy for such 
segregation may be administratively awkward, inconvenient, 
and even bizarre in some situations and may impose burdens on 
some; but all awkwardness and inconvenience cannot be 
avoided in the interim period when remedial adjustments are 
being made to eliminate the dual school systems." Swann v. 
Charlotte-Mecklenburg Bd. ofEduc., 402 U.S. 1, 28, 91 S. Ct. 
1267, 28 L. Ed. 2d 554 (1971). However, since the 1970s, 
Defendants have taken the position that they were not obligated 
to take additional steps in certain circumstances. In other 
words, the School Board unilaterally determined that they were 
not responsible for the racial imbalances; therefore, there was 
no need to take affirmative steps.

Although Defendants did not continue to employ 
aggressive desegregative techniques once the race ratios 
reflected the district-wide ratio, Defendants continued to



106a

"consider" the racial compositions of the schools as decisions 
were made. However, despite the fact that Defendants may 
have been successful in desegregating the school system, they 
are obligated to make affirmative efforts to desegregate until 
unitary status is declared. With regards to student assignments, 
affirmative efforts would have included reassigning students, 
rezoning, marketing the majority to minority programs, etc. 
The Court acknowledges that Defendants have made affirmative 
efforts to a limited extent; however, Defendants' failure to 
adequately address the racial imbalances which developed in the 
elementary schools relatively soon after the desegregation plan 
was implemented, does not exhibit a good faith commitment to 
desegregation.28 In other words, regardless of the cause of the 
imbalances, until Defendants sought a determination through 
the proper judicial channels, they were obligated to address 
these racial imbalances pursuant to the Court's orders. 
Moreover, the fact that a school system resists resegregation 
fortuitously, does not demonstrate good faith compliance with 
the Court's orders.

Without reiterating all of the abovementioned concerns 
for Edison, Graham, and Oak Park, the Court will merely 
emphasize the *1302 statistics the Court finds important. In 
1970, Edison had 1,788 school-aged children in its attendance 
zone, 343 (19.2%) were black. The actual racial composition 
for the 1972-1973 school year was 36% black and 64% white. 
By 1980, 584 (39.9%) of the 1,463 total school-aged students 
in Edison's attendance zone were black. The actual racial 
composition for the 1980-1981 school year was 55% black and 
45% white. By 1990, Edison's attendance zone included 836

28Unfortunately, Defendants may have been misled by the 
content of an ex parte communication conducted with the Judge and 
his staff who previously presided over this case. This matter will be 
discussed below.



107a

school-age students, 590 (70.5%) were black. The actual racial 
composition of students in attendance for the 1990-1991 school 
year was 69% black and 31% white.

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

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

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



108a

number of school-aged students in the attendance zones was an 
overstatement of actual attendees at the elementary schools at 
issue, and because the percentage of black school children 
actually attending each school almost always exceeded the 
"overstated" percentages, the Court is hesitant to accept 
Defendants' argument that a shift in demography is the sole 
cause the imbalance in these elementary schools.29 Moreover, 
Plaintiffs have provided evidence that the discrepancies were 
not caused solely by a shift in demography. Defendants' failure 
to act affirmatively in light of these deviations necessitates 
continued supervision.

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

29While Defendants point to other variables such as majority 
black satellite zones which may have contributed to these 
discrepancies, the point is that Defendants made the decision to 
select and implement these satellite zones without taking "whatever 
steps might be necessary" and without making "every effort" to 
achieve the greatest possible degree of actual desegregation, to the 
extent practicable.



109a

deviates approximately 10% from the district-wide ratio, it is 
also only 10% from becoming an absolute one-race school.

In the May 11, 1971, Order, this Court explained that, 
" [i]t was the Supreme Court's *1303 view that while the 
existence of a small number of one-race schools is not a sure 
mark of a segregated system, in systems with a history of 
discrimination there is 'a presumption against schools that are 
substantially disproportionate in their racial composition.'" 
(1971 Order at 32) (quoting Swann, 402 U.S. at 26, 91 S. Ct. 
1267). The Court also noted that of the seventy-nine (79) 
schools which the State Department of Education listed as white 
in a 1956 survey, in 1971, thirty-eight (38) were all or at least 
95% white. Id. at 36,91 S. Ct. 1267. According to Defendants' 
Exhibit 7, on October 24, 1994, there were eighteen (18) 
schools which were 90% or more white. Five (5) o f those 
schools were 93% or more white. (DX 7). By October 30, 
1995, twenty-four (24) schools were 90% or more white. Eight 
(8) of those schools were 93% or more white. (DX 7). By 
October 30, 1996, there were still twenty-four (24) schools 
which were greater than 90% white. Significantly, three (3) 
elementary schools had become 99% white and one (1) had 
become 97% white. At the junior high level, one (1) school had 
become 96% white and one (1) school had become 95% white. 
Consequently, the existence of these virtually one-race schools 
reveals that there were additional opportunities for Defendants 
to demonstrate a good faith commitment to desegregation.

Although Dr. Clark's report and testimony encompasses 
a degree of unreliability, based on the totality of the evidence, 
a shift in demographics is a substantial cause of the racial 
identifiability in Hillsborough County's schools. Plaintiffs' 
expert agreed that demographics have played a significant role 
in Hillsborough County; however, he asserted that additional 
factors should be considered and that it is premature to attribute 
racial imbalance in the schools to natural demographic change



110a

until the 2000 census is available. While the Court finds a lack 
of good faith commitment to desegregation by Defendants, the 
Court is not suggesting that all racial imbalance should, or 
could, have been eliminated. It is probable that these few 
schools would have become racially imbalanced regardless of 
Defendants' efforts. However, the degree and magnitude of the 
racial imbalance could have been lessened if Defendants had 
acted affirmatively over the last twenty-seven (27) years. 
Unfortunately, with the passage of time, the availability and 
effectiveness of remedies diminishes.30

The second group of schools studied by Dr. Clark 
included: Cahoon Elementary, Clair Mel Elementary, Foster 
Elementary, Shaw Elementary, Sulphur Springs Elementary, 
West Tampa Elementary, Witter Elementary, Dowdell Junior 
High, and Van Buren Junior High. These schools were grouped 
together because they deviated plus or minus 20% from the 
system-wide ratios between 1980 and 1990. (T2 at 36).

Cahoon Elementary11

In 1980, Cahoon's attendance zone was comprised of 
1,882 children ages 0 to 17. During this time, 396(21%) of 
these school-aged children were black. During the 1979-1980 
school year, Cahoon's actual racial composition was 28% black 
and 72% white. There was a boundary change implemented for 
the 1980-1981 school year which slightly reduced the

30Defendants are not solely to blame for the long delay. 
Between 1975 and 1994, Plaintiffs failed to object or otherwise 
complain about the existence of racially unbalanced schools.

3’The statistics used for these nine (9) schools were taken 
from DX 2, Table 5 and Appendix A to Defendants' Docket No. 796: 
Boundary Changes, Race Ratios & Demographic Changes for the 14 
Hillsborough County Schools with more than 40% Black Students.



111a

percentage o f black school children to 27%. However, in the
1986-1987 school year, the boundary change implemented 
increased the percentage of black students to 38%, from 33% 
the previous school year. In 1990, the number of school-aged 
children in the attendance zone increased to 2,015; however, by 
this time, 677 (33.5%) of the school-aged children were black. 
The actual racial composition for the 1990- 1991 school year 
was 38% black and 62% white. During the 1991-1992 school 
year, the actual racial composition for Cahoon was 41% black 
and 59% white. The actual racial composition of students in 
attendance at Cahoon for the 1995- 1996 school year was 52% 
black and 48% white.

Clair Mel Elementary

In 1980, Clair Mel's attendance zone was comprised of 
3,211 children ages 0 to 17. During this time, only 523 (16.3%) 
of these school-aged children were black. During the *1304 
1979-1980 school year, Clair Mel's actual racial composition 
was 27% black and 73% white. During the 1985-1986 school 
year, the actual racial composition of students in attendance was 
3 5% black and 65% white. In 1990, the number of school-aged 
children in the attendance zone decreased to 2,832; however, 
by this time, 1,112 (55.1%) of the school-aged children were 
black. The actual racial composition for the 1990-1991 school 
year was 41% black and 59% white. The actual racial 
composition of students in attendance at Clair Mel for the 1995- 
1996 school year was 49% black and 51% white.

Foster Elementary

In 1980, Foster's attendance zone was comprised of 
1,397 children ages 0 to 17. During this time, 438 (31.3%) of 
these school-aged children were black. During the 1979-1980 
school year, Foster's actual racial composition was 36% black 
and 64% white. During the 1984-1985 school year, a sixth



112a

grade was added to Foster and one (1) white and fifty-two (52) 
black students were transferred from Foster to Lopez. In 
addition, Foster received fifty-four (54) white and twenty (20) 
black students from Orange Grove Elementary. Defendants 
assert that this transfer was implemented to accommodate the 
new sixth grade at Foster and to relieve the racial imbalances 
developing. During the 1984-1985 school year, the actual racial 
composition of students in attendance was 29% black and 71% 
white. In 1990, the number of school-aged children in the 
attendance zone decreased to 1,215; however, by this time, 
63 7 (52.4%) of the school-aged children were black. The actual 
racial composition for the 1990-1991 school year was 46% 
black and 54% white. The actual racial composition of students 
in attendance at Foster for the 1995-1996 school year was 61% 
black and 39% white.

Shaw Elementary

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

Sulphur Springs Elementary

In 1980, Sulphur Springs' attendance zone was 
comprised of 1,600 children ages 0 to 17. During this time,



113a

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

Witter Elementary

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

West Tampa Junior High/ Elementary?2 32

32West Tampa started out as a junior high school in 1971; 
however, it became a sixth grade center in the 1979-1980 school 
year. It was subsequently converted to an elementary school in 1986.



114a

In 1980, West Tampa's attendance zone was comprised 
of 1,465 children ages 0 to 17. *1305 During this time, only 
305 (20.8%) of these school-aged children were black. During 
the 1979-1980 school year, West Tampa's actual racial 
composition was 21% black and 79% white. During the 1985- 
1986 school year, the actual racial composition of students in 
attendance was 20% black and 80% white. For the 1986-1987 
school year, West Tampa began serving grades K through 6. 
Defendants were required to implement numerous adjustments 
to complete this conversion. The actual racial composition of 
students in attendance at the "old" West Tampa Middle School 
before these changes were made was 25% black and 75% white. 
After these changes were made, the actual composition of 
students at the "new" West Tampa Elementary School for the
1987- 1988 school year was 47% black and 53% white. Forthe
1988- 1989 school year, twenty (20) white sixth graders were 
transferred from Lockhart to West Tampa which lowered the 
percentage of black students to 42%. In 1990, the number of 
school-aged children in the attendance zone decreased to 1,379; 
however, by this time, 436 (31.6%) of the school-aged children 
were black. The actual racial composition for the 1990-1991 
school year was 44% black and 56% white. The actual racial 
composition of students in attendance at West Tampa for the 
1995-1996 school year was 47% black and 53% white.

Dowdell Junior High School

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



115a

racial composition for the 1990-1991 school year was 41% 
black and 59% white. The actual racial composition of students 
in attendance at Dowdell for the 1995-1996 school year was 
49% black and 51% white.

Van Buren Junior High School

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

A study of the nine (9) schools which became more than 
40% black in the second decade since the desegregation Order 
was issued reveals that the disparities between the percentages 
of black school-aged children in the attendance zones and the 
actual enrollment of black students are not as dramatic as the 
five (5) schools which became 40% black within the first 
decade. Nevertheless, the actual percentages of black students 
attending these nine (9) schools exceeded the total number of 
black children 0 to 17 years old in the attendance zones in 
virtually every instance. However, as discussed above, the 
failure to actively address these imbalances is more relevant to 
Defendants' good faith compliance with the Court's orders, 
rather than to the issue of whether Defendants currently have 
desegregated student assignments. Importantly, the fact that 
these schools did not become racially unbalanced until the



116a

1980s provides support for Defendants' contention that gradual 
expansion of the black school-aged population caused the racial 
imbalance in these schools. "As the de jure violation becomes 
more remote in time and these demographic changes intervene, 
it becomes less likely that a current racial imbalance in a school 
district is a vestige of the prior de jure system." *1306 
Freeman v. Pitts, 503 U.S. 467, 496, 112 S. Ct. 1430, 118 L. 
Ed. 2d 108 (1992). However, the Freeman Court noted that, 
"[t]he causal link between current conditions and the prior 
violation is even more attenuated if the district has 
demonstrated its good faith." Id.

Defendant's other expert, Dr. Armor, testified about 
student race ratios within Hillsborough County. In addition, Dr. 
Armor summarized his findings in a report which was admitted 
into evidence as Defendants' Exhibit 1. Similar to the Court's 
definition of racially identifiable, Dr. Armor defined "racially 
balanced" schools as those schools that are within a plus or 
minus 20% variance from the district-wide racial composition. 
(DX 1 at 5). Dr. Armor indicated that prior to the Court's 1971 
Order, only 12% of black students and 56% of white students 
attended racially balanced elementary schools. (DX 1 App. 1). 
During the first three (3) years of Defendants' desegregation 
efforts, 97 to 98% of black students and 99% of white students 
were in racially balanced schools. (T3 at 23). The percentage 
o f white students that attended racially balanced schools 
remained above 90% through 1995, with the lowest percentage 
being 92%. (DX 1 App. 1). The percentage of black students 
attending racially balanced schools remained above 80% until 
1989, was between 77% and 79% from 1989through 1991,and 
since then, has remained around 70%. Id. Dr. Armor noted that 
"Hillsborough County has had a greater percentage of 
elementary students in racially balanced schools, and for longer 
durations, than any other districts I have evaluated in the 
Eleventh Circuit: DeKalb County, Savannah, and Muscogee 
County, Georgia." (DX1 at 5).



117a

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

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

(DX 1 at 6). In 1994, 79% of the black junior high school 
students attended racially balanced schools and in 1995, the 
percentages dropped to 75%. Id. From 1993 through 1995, 
100% of the high schools were racially balanced.

Dr. Armor also testified about the dissimilarity and 
exposure indices for schools in Hillsborough County. A 
dissimilarity index is a statistical measure of the degree of racial 
balance. On a scale from zero (0) to one hundred (100), zero 
(0) represents perfect racial balance, i.e., a racial balance equal 
to the district-wide composition, and one hundred (100) 
represents a system with all one-race schools. (T3 at 27). Dr. 
Armor explained that the numbers in between correspond to the 
approximate proportion of students (both races) that would have 
to change schools in order to achieve a perfect racial balance, 
i.e., 23% black and 77% white. Id. According to Dr. Armor, 
any number below 30 indicates a very high degree of racial 
balance. Id.



118a

On the other hand, the exposure index is the average 
percentage of white students in schools attended by black 
students. Id. at 29. Dr. Armor explained that it can be thought 
of as being a measure of the potential racial contact that black 
students experience in Hillsborough County. Id. Dr. Amor 
reported that:

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

The exposure index remains within ten points o f its 
maximum value until the mid-1980s, but even at the 
present time it is 63, *1307 which means that the 
average black student attends a school that is 63 percent 
white. In contrast, national figures show that the 
average exposure index for large southern districts had 
fallen below 50 by 1990, in large part because of white 
flight and falling enrollments.

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

Consequently, Dr. Armor concluded that the district­
wide figures demonstrate that, "the district has maintained a 
very high degree of desegregation up to the present time. 
Hillsborough County has higher levels of desegregation than the



119a

average large southern district, and it has higher levels of 
desegregation than other districts which have been declared 
unitary in the Eleventh Circuit." Id. at 7.

Dr. Armor also studied the student race ratios at all 
schools whose enrollments fell outside o f the plus or minus 
20% variance (whether or not it fell outside at the time he 
conducted his studies) for two (2) or more years between 1971 
and 1995. Id. There were only twenty-two (22) schools, out of 
nearly 150 regular schools in the district, and only 15(10%) of 
the district schools were outside of the variances as of October 
1995.33 Id. Dr. Armor noted that none of the schools which 
were over 40% black as of October 1995, had been a former 
black school and none of these schools had a majority' black 
enrollment before the 1971 Order. Id. at 7. Dr. Armor also 
emphasized that all of the schools that are over 40% black, 
except one (1), are located in the areas that Dr. Clark testified 
have experienced a substantial demographic change in the form 
of increasing black populations. Id.

In his analysis of the twenty-two (22) schools, Dr. 
Armor included a review of boundary changes that had the 
potential to affect racial composition by more than two (2) or 
three (3) percentage points. Dr. Armor compared the actual 
racial composition before the change to the projected racial 
composition after the change. Id. Dr. Armor concluded that the 
shift in demographics outlined by Dr. Clark explains why these 
schools moved outside of the plus or minus 20% range and that, 
despite the school board's efforts to improve racial balances, the 
boundary changes played a "relatively minor role in the racial

33It should be noted that Dr. Armor's studies excluded 
schools which were 93% or more white because they did not deviate 
by 20%. However, these "white" schools cannot deviate by 20% or 
more until they become virtually 100% white.



120a

composition o f these schools, being completely overwhelmed 
by demographics." (DX 1 at 11). Moreover, Dr. Armor 
testified that, "none of the schools that were currently 
imbalanced or were imbalanced in the past were caused by 
board action. They were caused by demographics." (Tr3-53). 
Dr. Armor concluded that, "the [School] Board did implement 
a highly effective desegregation plan that virtually desegregated 
the entire district to a very high degree o f desegregation, as 
high as I've ever seen anywhere in this country, but especially 
in the south, and that it maintained that plan for a very long 
time." (T3 at 49).

Plaintiffs expert. Dr. Shelley, also recognized that the 
boundary changes were not significant in improving racial 
compositions. Dr. Shelley reported that boundary changes have 
not consistently contributed to reducing racial imbalance. (PX2 
at 9). Dr. Shelley indicated that half of the boundary changes 
affecting the racially imbalanced schools reduced the percentage 
o f black students at that school and the other half, resulted in an 
increase. Dr. Shelley admitted that it is possible that a boundary 
change that improves racial balance in one (1) school could 
exacerbate racial imbalance in another. Id. However, Dr. 
Shelley opined that since Hillsborough County, as a whole, is 
not highly segregated, it should be possible to redraw boundary 
lines without adversely impacting neighboring schools. Id. at 
17.

Significantly, Dr. Shelley's conclusions regarding 
redrawing boundaries were based solely on the five (5) 
elementary schools which became racially imbalanced between 
1970 and 1980. Id. at 19. While Dr. Shelley emphasized that 
the attendance *1308 zones of these five (5) schools do not 
adjoin one another, he failed to evaluate the attendance zones of 
all the schools which do adjoin the racially unbalanced schools. 
Defendants' Exhibit 8 graphically depicts the attendance zones 
for the sixteen (16) racially unbalanced schools and clearly



121a

illustrates the difficulties in redrawing attendance zones. 
Undoubtedly, it would be possible to bus children across the 
county to ensure racial compositions that comport with the 
district-wide ratios; however, that would not be practicable and 
was not required by the Court's 1971 Order. Moreover, it is not 
required by the Constitution or governing law. Although 
affirmative steps are required to achieve the greatest practicable 
desegregation, heroic measures to ensure racial balance system- 
wide are not. See Freeman, 503 U.S. at 493, 112 S. Ct. 1430.

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

"What is involved here is the question whether the 
School Board has achieved the 'racially nondiscriminatory 
school system' Brown II held must be effectuated in order to 
remedy the established unconstitutional deficiencies of its 
segregated system." Green, 391 U.S. at 437, 88 S. Ct. 1689.



122a

The inquiry is whether the School Board has taken steps 
adequate to abolish its dual segregated system. Id. The 
Supreme Court in Green explained that school boards which 
were "operating state-compelled dual systems were nevertheless 
clearly charged with the affirmative duty to take whatever steps 
might be necessary to convert to a unitary system in which 
racial discrimination would be eliminated root and branch." 
Consequently, until a school system has discharged its duty to 
convert the dual system to a unitary one, the School Board's 
duty remains in place.34 However, the Supreme Court in Green 
was faced with a school district that had not yet implemented an 
effective desegregation plan.

Since Green, the Supreme Court has had numerous 
opportunities to evaluate the effectiveness of desegregation 
plans which had already been implemented. In Pasadena City 
Bd. o f  Educ. v. Spangler, 427 U.S. 424, 96 S. Ct. 2697, 49 L. 
Ed. 2d 599 (1976) and Swann v. Charlotte-Mecklenburg Bd. 
o f  Educ., 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971), 
the Supreme Court emphasized that, once a school system has 
achieved unitary status, a court may not order further relief to 
counteract resegregation that does not result from the School 
Board's discriminatory acts.35

34The Green Court also noted that," 'the court has not merely 
the power but the duty to render a decree which will so far as 
possible eliminate the discriminatory effects of the past as well as bar 
like discrimination in the future.' " 391 U.S. at 438 n. 4, 88 S. Ct. 
1689.

35The Supreme Court has declined to precisely define the 
term "unitary" in a desegregation context. See Dowell, 498 U.S. 237 
at 245,111 S. Ct. 630,112 L. Ed. 2d 715. However, to the extent the 
term is used to describe a situation where court supervision is no 
longer necessary, it must encompass a finding of good faith 
commitment. See Freeman, 503 U.S. at 490, 112 S. Ct. 1430.



123a

The Pasadena case involved the appropriateness of the 
district court's requirement that the desegregation plan contain 
provisions insuring that minorities could never become the 
majority at any of the district's schools. Id. at 432, 96 S. Ct. 
2697. Although *1309 the Court in Pasadena only 
confronted "the question of whether the District Court was 
correct in denying relief when [the school district] in 1974 
sought to modify the 'no majority' requirement as then 
interpreted by the District Court[,]" the Court reiterated the 
scope of permissible judicially created relief which is available 
to remedy violations of the Fourteenth Amendment. Id. at 432, 
434, 96 S. Ct. 2697. The Pasadena Court explained that the 
district court had no authority to impose such an inflexible 
requirement when the subsequent changes in the racial 
composition of the schools might be caused by factors for 
which the school district could not be considered responsible. 
Id. at 434, 96 S. Ct. 2697. However, Pasadena cannot be 
applied as broadly as Defendants suggest.

The Pasadena Court held that, because the school 
district had obtained the objective of racial neutrality in its 
school attendance pattern when its desegregation plan was 
initially implemented, the district court could not require the 
school district to rearrange its attendance zones each year in 
order to ensure that the racial mix desired by the court was 
maintained in perpetuity. 427 U.S. at 436, 96 S. Ct. 2697. The 
Court explained that, "once [the school district] implemented a 
racially neutral attendance pattern in order to remedy the 
perceived constitutional violations . . ., the District Court had 
fully performed its function of providing the appropriate remedy 
for previous racially discriminatory attendance patterns." Id. at 
437, 96 S. Ct. 2697.

Significantly, the Pasadena Court cautioned against 
applying its rulings generally. The Pasadena Court explained 
that it was error to enforce the district court's order to "require



124a

annual readjustment of attendance zones so that there would not 
be a majority of any minority in any Pasadena public school." 
Id. at 435, 96 S. Ct. 2697. Subsequently, the Supreme Court 
distinguished the inflexible portion of the plan in that case from 
desegregation plans involving an evaluation under governing 
case law. Id. The Pasadena Court explained:

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

Id. (internal citations omitted).

In order to align the instant case with Pasadena and 
Swann, with regards to student assignments, it must be clear 
that: (1) the implementation of Defendants' desegregation plan 
established a racially neutral system of student assignment in 
Hillsborough County; and (2) any post-1971 changes in the 
racial composition of the schools in Hillsborough County were 
not in any manner caused by segregative actions chargeable to 
Defendants.

In the case at hand, the parties do not dispute that all of 
the schools in Hillsborough County were desegregated as o f the 
1971-1972 school year. As of October 27,1971, there were no 
majority black schools among the school district's 122 schools



125a

and only one (1) school, Lee Elementary, had more than a 40% 
black student population. Moreover, Plaintiffs do not assert that 
Defendants' system of student assignments continued to 
segregate students after the desegregation plan was initially 
implemented. Plaintiffs did not file any written objections in 
this case concerning the actual or projected enrollments of any 
school in Hillsborough County for more than twenty-two (22) 
years after the 1971 desegregation plan was implemented. 
Plaintiffs failed to object to the racial compositions developing 
in the school system, despite the fact that Lee Elementary had 
become more than 50% black and Cleveland, DeSoto, Edison, 
and Gary Elementary had become more than 40% black as early 
as 1974. Moreover, Plaintiffs did not file their first objections 
to projected racial enrollments until June 1994. Plaintiffs' 
inaction *1310 indicates that there were no perceived 
violations of the 1971 Order.

There is no indication that the racial identity of the 
schools in Hillsborough County has been deliberately caused by 
segregative policies or practices by Defendants. Nevertheless, 
there is a presumption that the racial imbalance is traceable to 
the prior de jure dual system and Defendants must prove 
otherwise. The Court suspects that Defendants' inaction has 
contributed to the degree of racial unbalance in the school 
system. Notably, the 1971 Order was required because the 
School Board refused to act after the Supreme Court decided 
Brown I  and Brown II  in the 1950s. Importantly, the Supreme 
Court has emphasized that a mere racially neutral assignment 
plan maybe inadequate. Swann, 402 U.S. at 28,91 S. Ct. 1267. 
A neutral student assignment system will be insufficient if it 
"fail[s] to counteract the continuing effects of past school 
segregation resulting from discriminatory location of school 
sites or distortion of school size in order to achieve or maintain 
artificial racial separation." Id. at 28,91 S. Ct. 1267. While the 
Court acknowledges that a race neutral attendance pattern was



126a

implemented in the case at hand, Court supervision remains 
necessary. Neutrality alone is not sufficient.

"The district judge or the school authorities should make 
every effort to achieve the greatest possible degree o f actual 
desegregation and will thus necessarily be concerned with the 
elimination of one-race schools." Swann, 402 U.S. at 26, 91 S. 
Ct. 1267 (emphasis added). While the effective implementation 
o f a desegregation plan may satisfy an element o f the school 
districts' obligation under a desegregation order or consent 
decree, the courts' supervisory responsibility remains until a 
school board has: (1) eliminated the vestiges of past 
discrimination to the extent practicable; (2) exhibited a record 
of full and satisfactory compliance with the decree; and (3) 
"demonstrated to the public and the parents o f the once 
disfavored race, its good faith commitment to the whole of the 
court's decree and to those provisions of the laws and the 
constitution that were the predicate for judicial intervention in 
the first place." See Lockett v. Board o f  Education o f  Muscogee 
County School Dist., 92 F.3d 1092, 1098 (11th Cir.1996) 
(quoting Freeman, 503 U.S. at 491,112 S. Ct. 1430) ("Lockett 
/ ') ;  Lockett v. Board o f  Education o f  Muscogee County School 
Dist., 111 F.3d 839, 842 (11th Cir.1997) (" Lockett IF). "[Ojne 
of the prerequisites to relinquishment of control in whole or in 
part is that a school district has demonstrated its commitment to 
a course of action that gives full respect to the equal protection 
guarantees o f the Constitution." Freeman v. Pitts, 503 U.S. 
467, 490, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992).

"Once [Defendants] implemented a racially neutral 
attendance pattern in order to remedy [the specific] perceived 
constitutional violations on the part o f the Defendants, [this 
Court] had fully performed its function o f providing the 
appropriate remedy for previous racially discriminatory 
attendance patterns." See Pasadena, 427 U.S. at 437, 96 S. Ct. 
2697. However, Defendants were not relieved from their



127a

obligations once a means to an end was implemented.36

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

Lockett v. Board o f Education o f Muscogee County School 
Dzlst, 92 F.3d 1092 (11th Cir. 1996) (citing Freeman, 503 U.S. 
at 491, 112 S. Ct. 1430). The School Board's obligations 
remain until the Court finds that the racial imbalances are not 
traceable to prior de jure segregation. Significantly, such a 
determination has not been made in the case at hand.

In Lockett /, the Eleventh Circuit entertained arguments 
which were similar to those advanced by the parties in the 
instant case. The school district initially implemented student 
*1311 reassignment and attendance zone adjustments which 
effectively achieved its goal of proportionate student 
representation, pursuant to the district court's 1971 
desegregation Order. Id. at 1095. Throughout the 1970s, the 
school district maintained consistent statistical racial 
compositions within its schools. Id. at 1096. During the same

36Moreover, the fact that the parties entered into the 1991 
Consent Order, requires additional consideration. Not only did 
Defendants remain obligated to fulfill their duties, in good faith, 
pursuant to the equitable relief ordered by the Court in 1971, but the 
Consent Order embodies an agreement of the parties and is 
contractual in nature to some extent.



128a

period, the racial compositions of faculty and staff within most 
of the district's schools reflected the county-wide averages. Id.

However, by the end of the 1970s, the school district in 
Lockett began to curtail its desegregation efforts by reducing the 
number of student reassignments and attendance zone 
adjustments. Id. During this same time period, the 
demographics of the county began to shift. Id. By the mid- 
1980s, there was a decline in the number of schools with 
acceptable racial compositions and by 1991, a number of 
racially identifiable schools existed. Id. In 1993, the school 
district moved for a final dismissal and a declaration of unitary 
status. Id. In 1994, after an evidentiary hearing on the matter, 
the district court granted the school district's motion. Id.

Although the Eleventh Circuit initially reversed the 
district court (Lockett I), the Circuit Court subsequently granted 
the school districts' petition for rehearing and held that the 
district court's factual findings were not clearly erroneous and 
affirmed the district court's decision (.Lockett II). Lockett v. 
Board o f  Education o f  Muscogee County School Dist., 111 F.3d 
839 (11th Cir. 1997). Notwithstanding, the Eleventh Circuit in 
Lockett I  reiterated established principles of law which are 
applicable to the case at hand.

In Lockett I, the school district argued that unitary status 
had been achieved by the 1980s and therefore, they were 
released from their obligations under the 1971 Order at that 
time, even though unitary status was not declared until 1994. 
92 F.3d at 1097. Conversely, the plaintiffs argued that, "the 
school district's obligation to make affirmative efforts to 
desegregate the school system commenced in 1971 and did not 
end until the district court declared unitary status in 1994." Id. 
Moreover, plaintiffs argued that, the school district's failure to 
make good faith efforts to desegregate the system after the 
1980s contributed to the racial imbalances in the schools. Id.



129a

Significantly, the Circuit Court made it clear that, "[t]he school 
district was subject to the 1971 court order until such time as 
the district court vacated that order by declaring that the school 
district had achieved unitary status and complied with the order 
in good faith." Id. (citing Pasadena, 427 U.S. at 439-40, 96 S. 
Ct. 2697).

In the case at hand, Defendants continued their 
desegregation efforts after they initially achieved acceptable 
racial compositions throughout the school system in the 1970s. 
Moreover, Defendants continue to employ new desegregation 
techniques to date. Therefore, this case is somewhat 
distinguishable from Lockett I  .The school district in Lockett 
implemented a neighborhood assignment plan which 
"affirmatively increased racial imbalances," whereas, 
Defendants in the instant case have not. See Id. at 1101. 
Furthermore, in Lockett, the school district never implemented 
a majority to minority transfer program, "a tool basic to 'every' 
desegregation program." Id.

Although Defendants in the case at hand have not 
"affirmatively" exacerbated racial imbalances and have 
implemented, inter alia, a majority to minority transfer 
program, Defendants "curtailed" their desegregation efforts.37 
Defendants never sought a determination of unitary status until 
the issue was raised sua sponte by the Court; however, for 
years, Defendants have failed to adequately address schools 
which became racially imbalanced. While the evidence 
presented by the parties establishes that a shift in demographics 
played a significant role in the racial compositions of the 
schools, Defendants have not demonstrated a good faith

37With regards to the instant case, the term "curtail" may be 
slightly misleading. In some instances, Defendants had not 
implemented basic desegregation techniques until the 1990s.



130a

commitment to desegregation. Certainly, Defendants deserve 
acknowledgment for their desegregation efforts thus far; 
however, the Court intends that its criticisms will serve as a 
guide to Defendants as they implement desegregation 
techniques in the future. Defendants must take affirmative steps 
in order to be released from the Court's supervision." *1312 
Each instance o f a failure or refusal to fulfill this affirmative 
duty continues the violation of the Fourteenth Amendment." 
Columbus Bd. ofEduc. v. Penick, 443 U.S. 449, 459, 99 S. Ct. 
2941,61 L. Ed. 2d 666(1979).

II. Good Faith

A. Desegregation Techniques

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

(i) Majority to Minority Transfers

Plaintiffs argue that, even though majority black schools 
existed since, at least 1977, as of April 19,1996, there was not 
one (1) majority to minority ("MTM") transfer granted. (Br. in



131a

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

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

Dr. Miliziano testified that the utility of the MTM 
transfer program was not fully appreciated in the past and that 
it is possible that students who had been denied a transfer under 
the special assignment program, could have been eligible for a 
transfer under the MTM program. (T1 at 91-93). However, it 
is clear that, when the desegregation plan was proposed to the 
Court in 1971, Defendants understood the utility of a MTM



132a

program. In the Court's July 2,1971, Order (Docket No. 250), 
the Court explained that the MTM program, other transfer rules, 
the Bi-Racial Committee, and approval of site locations had 
been required by previous orders. (July 2, 1971 Order, at 9). 
The Court noted that these programs and procedures may not be 
required if  the School Board's plan is effectuated and 
accomplished. Id. Interestingly, Defendants, perhaps being 
overly optimistic, sought to avoid the implementation of the 
MTM program before the desegregation plan had been 
approved. The Court acknowledged:

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

"(a) . . . Should the Desegregation Plan submitted by 
Defendants to the Court be approved, there would seem 
no purpose for retaining the majority to m inority 
provisions *1313 for transfer, since such plan should 
result in a black to white ratio of approximately 20% to 
80% in each and every school; accordingly, and of 
necessity, black students would be in a minority in 
schools at all levels . . .."

Id. Nevertheless, the Court opined that it would retain 
jurisdiction and "require the continuation of all of these 
procedures to be available and used as necessary." Id. The 
Court subsequently discussed Defendants' continuing 
responsibility and noted that, to effectuate the plan "will require 
the same type of community involvement, diligence and 
effectiveness as has already been shown [in developing the 
desegregation plan]." Id. at 9-10.

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



133a

Q. [Dr. Miliziano] [a]re you aware of the treatment of 
majority to minority transfers in the original 1971 
order?
A. To tell you the truth, Mr. Gonzalez, I was—I read that 
order probably a dozen times. I really was a bit 
confused as to what that meant.
Q. Okay. Let me represent to you that the court order 
contains the language with respect to that majority to 
minority transfer: "The court is retaining jurisdiction 
and will require the continuation of all of those 
procedures to be available and used as necessary."

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

A. To my knowledge, no.

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

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

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

It wasn't until recently that it was brought to my 
attention that, hey, this thing is supposed to be done,



134a

and now that you have schools that are 50 percent black 
or higher, you're supposed to implement this policy.

(T1 at 106-07).

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

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

The Magistrate Judge explained that, " [a] 1 though the 
absence of M to M transfer applications is troubling, the Court's 
1971 Order did not require the defendants to solicit M to M 
transfers; they were only required to grant them if requested.



135a

There has been no violation of the Court's Order as to the M to 
M transfer policy." ® & R at 74). Notwithstanding, the Court 
finds that this interpretation *1314 of Defendants' ongoing 
obligations is too narrow. While the Court did not specifically 
direct Defendants to market the program, surely if  Defendants 
fully embraced their desegregation obligations they would have 
wanted to utilize this technique to the fullest extent or at least, 
made an effort to understand it.

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

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

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

* * * * * *

Some of this may not be known by some or all members 
of the present board, although it should be. To be sure 
that they do know, a copy of this Order and a copy of 
the April 20,1971, Supreme Court opinion in Swann v. 
Charlotte-Mecklenburg Board o f  Education, will be 
sent separately to each defendant. It is assumed that 
being informed each will fulfill his or her sworn 
obligation to "support and defend the Constitution of the 
United States," as did the Court. Each should remember 
that he is a defendant, and that the Court will uphold its 
obligation.

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



136a

Significantly, the Supreme Court in Swann, 
emphasized that,

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

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

The Court ordered service of this Supreme Court 
opinion on Defendants in 1971; however, Defendants failed to 
take the time to understand, let alone implement, an effective 
MTM program. The Supreme Court in Swann ordered that 
school districts provide free transportation to the student and 
make space available, but twenty (20) years later, Defendants 
seek to hide behind the fact that this Court did not specifically 
indicate that the program should be publicized. This falls far 
short of demonstrating good faith compliance and, is indeed, 
troubling.

Defendants have also gone to great lengths to align the 
instant case with the Supreme Court decision in Freeman. 
However, there are some substantial difference between the two 
(2) cases. Foremost, the school district in Freeman was 
comprised of 5.6% black students when the desegregation order 
was initially entered in 1969. 503 U.S. at 475,112 S. Ct. 1430. 
Significantly, by 1986, the percentage of black students had



137a

grown to 47%, whereas, in the case at hand, the influx has not 
been nearly as remarkable. Id. Moreover, the county had 
become highly segregated in Freeman. Id. In addition, the 
school district in Freeman, on its own initiative, implemented 
a majority to minority transfer program three (3) years after the 
desegregation order was entered. Id. at 479, 112 S. Ct. 1430. 
"The program was a marked success." Id. Conversely, in the 
instant case, Defendants had not granted one (1) majority to 
minority transfer as late as 1996, twenty-five (25) years after the 
desegregation order was entered.

(ii) Magnet Schools

In addition, Plaintiffs emphasize that Defendants failed 
to develop magnet schools and/or programs, except for the 
magnet program at Tampa Bay Technical High School, until 
1993. Plaintiffs contend that magnet schools have been used by 
school districts for desegregation purposes since the 1970s. 
(PX1 at 10). Moreover, the federal government has provided 
special funds for such *1315 schools since the 1980s. Id. 
However, the Hillsborough County school system did not create 
its first magnet schools until 1993. Id. While Defendants 
deserve praise for im plem enting these m agnet 
schools/programs, the prolonged delay detracts from their 
achievement.

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



138a

race ratios after complete implementation of the Middle School 
Plan, the school system will experience an increase in the 
number of racially identifiable schools, as well as, the 
magnitude of racial identifiability of each school.

To illustrate, Plaintiffs argue that, before the plan, there 
were six (6) schools that were 50% black or higher. (PX 1 at 
15-16). Although the projections in the Middle School Plan 
anticipated a decrease to five (5) schools, the actual number had 
increased to twelve (12) by the fall of 1995. Id. There were 
nine (9) schools that were between 40 an 49% black before the 
plan was implemented. Id. According to Defendants' 1991 
projections, there was supposed to be seven (7) schools that 
were between 40 and 49% black. Id. By the fall of 1995, there 
were only five (5) schools in this range. Id. However, overall, 
fifteen (15) schools were considered racially unbalanced before 
the plan; the 1991 projections predicted that the number would 
decrease to twelve (12). Id. Unfortunately, the number 
increased to seventeen (17). Id.

(iii) Ex Parte Communications

An unfortunate occurrence which may have contributed 
to Defendants' apathetic attitude over the past several years was 
that Defendants were given ex parte advice from the 
previously presiding judicial officer. Plaintiffs argue that, "[t]he 
testimony of Dr. John Heur leads to further doubt about 
defendants' representations to this Court." (Pis.’ Br. in Supp. of 
Pis. Objs. at 52). Plaintiffs explain that Dr. Heur served as the 
Director of Pupil Administrative Services for the Hillsborough 
County school system and was responsible for implementation 
of Defendants' desegregation plan, including participating in the 
submission of plans and annual reports to the Court. Dr. Hem- 
testified that he had several ex parte conversations with the 
judge then presiding over this case, as well as, the presiding 
judge's law clerks. (T7 at 13-16).



139a

Dr. Heur explained that most of the time he was asked 
to explain information included in the School Board's 
submissions to the Court. (T7 at 15). However, on one 
occasion, the presiding Judge told Dr. Heur that the schools 
could be "left alone" if the School Board had not been the cause 
of a deviation from the ideal race ratios stated in the 1971 
desegregation Order. Id. at 16. Dr. Heur testified that, as a 
result of the ex parte conversation with the presiding judge, he 
understood it to mean that if the change in racial composition in 
a particular school was caused by housing patterns, rather than, 
gerrymandering done by the School Board, then the School 
Board was not obligated to make changes to that schools' 
attendance boundaries. Id  at 17- 18. Notwithstanding, Dr. 
Heur testified that the School Board, in fact, continued to adjust 
the race ratios if they deviated from the target ratios. Id. at 18.

The Magistrate Judge emphasized that, regardless o f any 
ex parte advice that may have been given. Defendants continued 
to take steps to improve the racial balances when making 
boundary changes and opening and closing schools. ® & R at 
85). The Magistrate Judge explained that, "[i]f this advice was 
indeed given, there is no inconsistency between the advice and 
the Court's Orders. These ex parte conversations, while 
unfortunate, were not initiated by defendants and do not 
demonstrate a lack of good faith on the part of defendants in 
complying with the Court's orders."

There is no dispute that the ex parte communications 
were inappropriate. However, standing alone, the ex parte 
communications do not evidence bad faith. Nevertheless, 
*1316 in light of the Court's findings, the communications may 
explain why Defendants failed to take affirmative action to 
desegregate the school system. Defendants have taken the 
position that, once the attendance zones were drawn and the 
schools reflected the system-wide racial composition, albeit for 
a brief period of time, the School Board had no further



140a

obligation to take affirmative steps to convert to a unitary 
system. This philosophy is clearly erroneous. Consequently, 
Defendants have failed to meet the Constitutional commands 
espoused in Brown v. Board ofEduc. o f  Topeka, Kan., 349 U.S. 
294, 75 S. Ct. 753, 99 L. ED. 2D. 1083 (1955), and the Court 
will retain jurisdiction over the educational policies related to 
student assignments.

In order to fully apprise the parties of the posture o f this 
case, the Court will address Plaintiffs objections to the 
Magistrate Judge's findings in connection with the remaining 
Green factors. The following factual findings are taken from 
the Magistrate Judge's Report and Recommendation:38

FACULTY AND STAFF ASSIGNMENTS

1. For the 1993-1994 school year, 14% of the teachers 
in Hillsborough County were black. For the same year, blacks 
constituted 17% of the principals, 22.2% of the assistant 
principals, and 7.9% of the district administrators (at the main 
school board office). Of the noninstructional permanent 
personnel, 16.1% were black. Black teacher aides comprise 
25.3% of the total teacher aides employed by the county.39

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

3*See R & R (Docket No. 809) pgs. 34-57.

39Defendants used district-wide employee data from the 
1993-1994 school year at the unitary status hearing. (T2 at 134)



141a

3. Additionally, a mentoring program has been instituted 
for black teachers who aspire to be administrators. More than 
one-half of the graduates of that program have been placed in 
administrative or teacher resource positions. (T2at 108-09; PX 
14)

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

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

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

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



142a

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

*1317 9. Defendants have never been found liable for 
racial discrimination in employment based on records which 
have been maintained since at least 1977. Some complaints 
have been resolved at the administrative stage. (T7 at 199- 200)

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

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

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



143a

receives.40 Ms. Porter, who is African-American, meets with 
the Superintendent and staff on the average of once or twice a 
month. This working relationship has become stronger with the 
current Superintendent, Dr. Earl Lennard. Although she is 
opposed to a declaration of unitary status at this time, Ms. 
Porter admitted that many complaints are resolved through 
these informal meetings. (T6 at 139-41)

TRANSPORTATION

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

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

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

40Ms. Porter was not asked about a venture between the 
University of South Florida and the School Board launched in August 
1995 to place black male teachers with the School Board after 
graduation. (DX 14, "Project PILOT" documents)



144a

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

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

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

19. Of this number, more black students than white 
students were transported at each of the three (3) school levels: 
elementary, middle, and high school. (PX 1 at 20)41

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

*1318 21. Part of the reason for adopting the Middle 
School Plan was to allow students to attend schools close to 
their homes as much as possible. (T1 at 65)

22. Although the 1971 Order did not require provision 
of transportation for after-school activities, the School Board 4

4‘Of the elementary students transported 23% were black and 
10% were white. At the middle school level 26% were black and 
18% were white. Of the high school students, 24% were black and 
8% were white. (PX 1 at 20)



145a

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

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

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

EXTRACURRICULAR ACTIVITIES

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

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



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

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

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

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

31. Defendants do not maintain data on a school by 
school basis for extracurricular activities but do track overall 
participation by race. In 1995, black students accounted for 
11% of the honor society memberships, 12% of drama clubs,



147a

27% of student councils, 20% of marching bands, 14% of 
orchestras, and 19% of choral groups. (PX 1 at 27)

32. These activities are open to all students and no 
students are denied the opportunity to participate because of 
their race.42

*1319 FACILITIES AND RESOURCE ALLOCATION 
Site Selection and School Openings and Closings

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

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

42Mae King, mother of an Armwood High School student, 
testified that she observed cheerleading tiy-outs at Armwood recently 
because she was concerned that there were not enough black 
cheerleaders. As a result of the try-outs, however, three (3) blacks 
were chosen for the varsity squad and three (3) were chosen for the 
junior squad. (T4 at 17-27) Ms. King also recounted an incident 
where a suggestion was made at a PTA meeting to have a black disc 
jockey at a school dance and some of the people at the meeting got 
upset and walked out. (T4 at 20-21; 27-28)



148a

35. Between 1971 and 1993 the School Board has 
constructed 25 new schools. In most cases, the percentage of 
black students attending these schools the first year was brought 
closer to the 80/20 ratio. (DX 4)43 By 1995, five additional 
schools were built. (PX 1 at 8) None o f the new schools has 
been opened with an all-white population or a black population 
of close to 40 percent. (T1 at 26)

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

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

38. Plaintiffs have been notified of all school 
construction through the reports filed with the Court as to 
boundary changes. Plaintiffs have never objected to the

43The School Board’s exhibit does not address schools 
opened after the 1993 school year.



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location of new schools. Although most of the new schools 
have been opened in the suburbs, Blake High School, which is 
a magnet high school opened in the 1997-1998 school year near 
downtown Tampa. Defendants have also opened several 
magnet schools in predominantly black, inner-city areas: Lee, 
Phillip Shore, and Dunbar Elementary Schools, as well as, 
Young and Middleton Middle Schools. (T1 at 155; 174-177)

Overcrowding

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

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

41. Dr. Shelley's data also shows that in 1995, atotal of 
102 public schools in Hillsborough County were more than 
25% over their FISH capacity: eighty-eight (88) were racially 
balanced schools and fourteen (14) were unbalanced44 schools. 
Only eight (8) of the *1320 eighty-eight (88) balanced schools 
were more than 50% over their FISH capacity but four (4) of the 
fourteen (14) unbalanced schools fell into this category. (PX 2 
at 23)

44Dr. Shelley used the same measure of racial imbalance used 
by Dr. Armor and Dr. Stevens.



150a

42. However, the FISH capacity of a school does not 
include portable classrooms. Use of portables does not 
necessarily mean that a school is overcrowded. (T4at 101-03)45

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

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

45. Although no testimony was provided interpreting the 
Percentage of Capacity Report in terms of individual schools, 
it appears that of the 105 elementary schools surveyed, the ten 
(10) elementary schools with the highest number of points

45Defendants have provided a 46-page list entitled 
"Relocatable Classroom Inventory" which listing all portable 
classrooms placed in use between 1949and 1995 and their locations. 
(DX 29)



151a

include Edison, Witter, DeSoto, Shaw and Cleveland, all of 
which have black student enrollments of 40% or more. (DX 32, 
Elementary Schools, at 1)

Teacher Resources

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

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

Expenditures

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

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

50. The School Board also receives funding from the 
federal government for educating handicapped students and 
funding based on the socioeconomic needs of the students. 
Capital outlay expenses for new schools and other capital



152a

expenses come from local taxes. The School Board also 
receives some state funds generated from gross receipts on 
utilities. (T1 at 188)

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

52. There is no difference in the per capita expenditures 
o f the School Board on instructional salaries for teachers 
district-wide regardless of the racial composition of the schools. 
(DX 1, charts 37,40) As stated in the preceding discussion of 
faculty and staff, instructional salaries are set by the collective 
bargaining agreement between the teacher's *1321 association 
and the School Board. The federal government also prescribes 
comparability standards for employees paid by federal funds. 
(T1 at 199)

53. Funding for instructional resources is allocated by 
the School Board on a pupil by pupil basis without regard to 
race, ethnicity, gender, or other limits such as the FISH capacity 
for the school. When a group of schools is converted to the 
middle school plan, those schools receive additional resources 
due to the conversion. (T7 at 191-93)

54. A comparison of expenditures for instructional 
supplies and equipment for fiscal years 1993 and 1995 showed 
that elementary and junior high schools which were more than 
40% black received slightly less funding than schools which 
were less than 40% black. (DX 1, charts 38 and 41)

55. The School Board attributes this difference to 
"conversion funds distributed to schools which were newly 
constructed or reconfigured pursuant to the Middle School 
Plan" and notes that "[mjost of the over 40% schools [are] not



153a

scheduled for conversion until the 1996-1997 and 1997-1998 
school years." (Dkt. 797 at 83) The record supports this 
argument. (T1 at 97)

56. In addition, a study of total capital expenditures for 
fiscal years 1993 and 1995 indicates that there was essentially 
no difference between schools which were over or under 40% 
black. During the latter year, elementary schools which were 
over 40% black received more funding. (DX 1, charts 39 and 
42)

57. A review of capital expenditures during the period 
1991 to 1995 by Dr. Armor revealed that expenditures for inner 
city elementary' schools (which comprise most if  not all of the 
more than 40% black schools) were slightly higher than those 
of the other elementary schools.46 Spending for the inner city' 
junior high schools was substantially higher than other junior 
high schools. (DX 1, chart 43)

QUALITY OF EDUCATION

58. Several witnesses called by Plaintiffs, including 
Plaintiff Andrew Manning and School Board Chair Doris 
Reddick, testified poignantly about the differences between 
black and white schools in the era of de jure  segregation. Mr.

46Darrell Daniels, one of the witnesses called by Plaintiffs, 
is employed with the Urban League and operates youth development 
programs at Robles and thirty-one (31) other schools. One (1) of his 
children attends Robles. While commending the principal of Robles, 
Mr. Daniels, who is African American, criticized the lack of 
commitment to education which he saw in the other personnel at the 
school. He also felt that Robles did not have the equipment such as 
computers which other schools have. However, he agreed that a 
school’s commitment to education can vary regardless of the racial 
make-up of the school. (T6 at 58-77)



154a

Manning and Ms. Reddick attended public schools in 
Hillsborough County. Ms. Joanna Tokley taught in the public 
schools, both before and after the Court's 1971 desegregation 
order. All three (3) are African-American. (T3 at 163-68; T5 
at 20-23; T6 at 103-110)

59. Orders entered in this case have not required the 
School Board, in dismantling the dual school system, to attain 
specified levels of student achievement or any other standard to 
evaluate quality of education. However, this Court's referral 
order directed that the quality of education, along with the other 
Green factors be evaluated, as well as, the School Board's good- 
faith commitment in determining whether the public schools of 
Hillsborough County have attained unitary status.

60. Evidence presented by the parties concerning the 
quality o f education today focused on academic achievement, 
enrollment in gifted programs, and suspension and dropout 
rates. Other factors bearing on quality o f education such as 
facilities and resources as well as magnet programs have been 
addressed in the preceding sections.

Achievement Tests

61. Since 1977, the School Board has examined the 
results of achievement tests by students of different races on a 
regular basis. (T2 at 147)

62. Dr. John Hilderbrand, who has supervised testing for 
the Hillsborough County school system since about 1977, 
testified that there are an increasing number o f state-mandated 
tests for students that are administered *1322 and evaluated by 
the School Board. (T2 at 138-40)

63. On the Stanford Achievement Test, Hillsborough 
County students scored slightly below the 50th percentile in



155a

reading and slightly above the 50th percentile in math and 
language which is the average rank for a national population. 
(T2 at 139-140) A standardized writing exam given to students 
in the fourth, eighth and tenth grades demonstrates that 
Hillsborough County students score higher than any of the other 
large school districts in the state. (T 2 at 140) Similar results 
are obtained on the High School Competency Test (HSCT). 
(T2 at 141) Scores for black students on the writing exam and 
HSCT showthat Hillsborough County students outperform state 
averages for those tests. (T2 at 141)

64. A voluntary test taken by about 47% of seniors in 
high school—the Scholastic Assessment Test—has consistently 
produced results that place Hillsborough County students above 
national and state averages. When the scores are analyzed by 
race, the same result is shown. Black students in Hillsborough 
County outperform state and national norms. (T2 at 141)

65. In attempting to evaluate how well the school system 
is educating all of its students, Dr. Armor examined 
standardized tests (the Stanford Achievement Test) given to 
fifth grade students in Hillsborough County in the spring of 
1994 and the spring o f 1995. Overall, black students scored 
sixteen (16) to seventeen (17) points lower than white students 
in reading and math. (T3 at 88-89; DX 1, chart 44) This 
represents approximately three-fourths of a standard deviation. 
(DX 1 at 21)

66. A nationwide study conducted in 1992 found that 
similar differences exist between blacks and whites at all grade 
levels in math and reading; the achievement gap ranges from 
two-thirds to four-fifths o f a standard deviation depending on 
the grade and test level. (DX 1 at 21)

67. However, when performing a regression analysis 
which used socioeconomic factors relating to family income,



156a

single or two parent families, and the educational background 
of the parents, the gap in scores between black and white 
students narrows considerably. (T3 at 90-101; DX 1, chart 45) 
Dr. Armor concluded that about 60% of the gap in the reading 
scores for black and white students and about 66% of the math 
scores can be explained by socioeconomic factors. (DX 1, chart 
46)

68. Additionally, when the first grade test scores for the 
same group of students are added as an additional variable, 
almost 75% of the reading gap and 90% of the math gap is 
explained by these variables.47 (DX 1 at 22-23, chart 47)

69. An analysis ofStanford Achievement Tests taken by 
eighth grade students revealed similar results. About 71-72% 
of the gap in reading scores and about 84-86% of the gap in 
math scores between black and white students in Hillsborough 
County for the same years was attributable to a combination of 
socioeconomic factors and first grade test scores. (DX 1 at 23, 
charts 48 and 49; T4 at 98-100)

70. Dr. Robert Crain, a witness called by plaintiffs, 
criticized some of the assumptions and methodology employed 
by Dr. Armor in arriving at his conclusions. (T6 at 157-207)

71. Dr. Crain disagreed with Dr. Armor's use of first 
grade test scores as predictors of student achievement entering 
first grade because the tests are given in the spring rather than 
in the fall. (T6 at 162-63) However, Dr. Crain agreed that a

47First grade test scores are used as a predictor of student 
achievement or skills before entering school. (T3 at 96) However, 
the tests are given in the spring of the school year rather than the fall 
and therefore are the product of the first grade curriculum to an 
extent. (T6 at 253; 283; T7 at 186-87)



157a

student's entry-level skills are important predictors of how well 
a student will perform on the fourth and eighth grade tests. (T6 
at 253-53)

72. Dr. Crain also disagreed with Dr. Armor's use of 
neighborhood data to determine the variables of family income 
and educational level of parents because that data reflected 
averages rather than actual figures for a neighborhood and 
therefore would presumably include both black and white 
families. (T6 at 168-73; 236) However, Dr. Crain uses 
neighborhood income in the studies he conducts. (*1323 T6at 
236) Dr. Crain also questioned whether family income and 
educational background could be remnants of the prior 
segregated school system. (T6 at 174-76)

73. Overall, Dr. Crain thought that Dr. Armor had 
overestimated the effects of socioeconomic factors on 
achievement test scores. (T6 at 192) Although he disagreed 
with some variables used by Dr. Armor, Dr. Crain did agree that 
the socioeconomic factors of free lunch and the number of 
parents at home were relevant and important variables. (T6 at 
266) Using these factors, he obtained a line of regression 
similar to Dr. Armor's study. Dr. Crain did not determine the 
statistical significance of the differences between his study and 
Dr. Armor's. (T6at270)48

48Dr. Crain disagreed with Dr. Armor's use of a "two-tailed" 
statistical model and felt that he should have used a "single-tailed" 
analysis. (T6 at 274) His preference for the single-tailed analysis 
was that "no one . . . would expect blacks to score better in higher 
black schools." (T6at274) The reasons cited by Dr. Armor for use 
of the two-tailed analysis are more persuasive and refute Dr. Crain's 
assumption that black students in schools with a higher black 
enrollment will always score lower than those students in schools 
with a lower black enrollment. (T7 at 161-69)



158a

74. Dr. Crain's study showed that fifth-grade black 
students attending schools that were at least 40% black 
performed deficiently when compared with their counterparts 
attending schools that were under 40% black. (T6 at 206-07) 
However, these differences occurred only with reading. There 
were no differences in math. (T6 at 281-82)

75. However, when Dr. Crain used the same variables as 
Dr. Armor, he reached substantially the same results. (T6 at 
265-66)

Academic Outcome

76. To evaluate how well the school system is doing in 
educating high school students, Dr. Armor examined grade 
averages and college plans as no standardized tests are taken by 
twelfth graders. White students have a 2.9 grade average; 
black students have a 2.3 grade average. Fifty-six (56) percent 
of the high school seniors who were white planned to attend 
college as compared to 45% of black students. (DX 1 at 24-25, 
chart 54)

77. When adjustment is made for socioeconomic factors 
and tenth grade achievement tests, Dr. Armor concluded that the 
grade average gap for black and white seniors would be only 
about .15 grade point. (DX 1 at 25, chart 55) After adjusting 
for socioeconomic factors, the difference between black seniors 
and white seniors in terms of college plans is practically 
negligible. (DX 1 at 25, chart 55)

Gifted Programs

78. As of October 1996, approximately 75% of the 
students enrolled in Hillsborough County gifted programs were 
white and approximately 9% were black. The remaining 16% 
were from other minority groups: 11% Hispanic, 4% Asian, 
and Indian and multi-cultural, less than 1% each. (T2 at 151-



159a

52) While the number of black students in the gifted program is 
disproportionate to the number of black students enrolled in 
public schools, students must both apply to the gifted program 
and meet minimum criteria including attainment of a minimum 
score on a standardized test.

79. Until 1991, admission into gifted programs was set 
by state standards requiring an IQ test of 130 or higher. That 
year, the state adopted a plan to increase the number of minority 
gifted students and invited school districts to submit alternate 
criteria for admission. Hillsborough County elected to 
participate and submitted criteria under this program (referred 
to as "Plan B") which included an IQ score of 115 or higher 
together with demonstrated academic achievement and other 
characteristics typical of gifted individuals. (T 153- 56)

80. Implemented in 1993, the "Plan B" program 
continues to this day. Dr. Stevens noted that the school 
district's implementation of "Plan B" had increased the 
proportion of black pupils in the gifted program. (PX 1 at 31)

81. Ronnie King, number two (2) in his class at 
Armwood High School, moved to Tampa from Colorado. He 
had been enrolled in gifted programs in Colorado. He *1324 
missed a year of participation in gifted programs in seventh 
grade due to the transfer and having to be retested. His mother 
was later told that he did not need to be retested. Mr. King, 
who is African-American, was placed in gifted programs in the 
eighth grade and has participated in those programs since that 
time. (T6 at 43-55).

Dropout Rates

82. Defendants monitor dropout rates and have a 
program designed to minimize dropouts. In the elementary



160a

schools, the program relies on enhancing reading, math, and 
skills development in small groups of students. (T7 at 206-07)

83. In the junior and middle schools, the School Board 
focuses on students who may be at risk of dropping out and 
provides those students with additional academic experiences 
with a low teacher to student ratio. At the senior high schools, 
defendants provide additional counselors and teachers in a 
graduation enhancement program. (T7 at 207)

84. Additionally, the School Board provides a monthly 
report of prospective dropouts to the principals of each school. 
The principals are expected to follow-up with each student on 
an individual basis to give specific suggestions on how to stay 
in school or participate in alternate programs such as the GED 
program or adult education which meets the needs o f the 
student. (T7 at 207)

85. The dropout rates for Hillsborough County public 
schools are the lowest in the state for similar large urban school 
districts. In the past five (5) years, dropout rates have averaged 
about 3 1/2 %. (T7 at 208-09)

86. Dr. Armor examined data for the high school 
graduating class of 1995 beginning when those graduates were 
in the eighth grade. The difference in dropout rates for blacks 
(15%) and whites (9%) is not significant. When adjusted for 
socioeconomic factors, that difference is negligible. (DX 1 at 
24, charts 52, 53)

Suspension Policies and Rates

87. The School Board also tracks suspensions and 
expulsions by sex, race, and age. The suspension rates for 
Hillsborough County are lower than state-wide averages in 
some areas and for some groups. (T7 at 234) The School



161a

District has out-of-school suspension programs as well as seven 
(7) alternative school sites. Individual schools can elect to run 
an in-school suspension program; that decision is left up to the 
administration at each school. (T7 at 234-36)

88. Dr. Armor did not examine suspension rates, but Dr. 
Stevens did. After examining four (4) years of data (1990-
1994), Dr. Stevens concluded that black students are suspended 
from school at disproportionately high rates. He found that in 
1994-1995 the suspension rate for black students was two (2) to 
four (4) times higher than the rate for white students depending 
upon grade level and the type of suspension. This data did not 
lead Dr. Stevens to infer racial discrimination, however. His 
criticism was that the School Board had not examined this data 
more closely on a school-by-school basis "to verify that 
disparities are not race-related." (PX 1 at 29-30)

13. Faculty and S ta ff Assignments

Plaintiffs object to the Magistrate Judge's 
Recommendation that unitary status be declared with regards to 
faculty and staff assignments. Plaintiffs point out that the 
Court's July 2, 1971, Order provides:

Principals, teachers, teacher-aides and other staff who 
work directly with children at a school shall be so 
assigned that in no case will the racial composition of a 
staff indicate that a school is intended for black students 
or white students. Such personnel shall be assigned so 
that the ratio of black to white teachers in each school, 
and ratio of other staff in each are substantially the same 
as each such ratio is to the teachers and other staff, 
respectively, in the entire school system.

(July 2, 1971, Order at 10). Plaintiffs argue that the Order 
specifically contemplates the inclusion of faculty and staff in



162a

the analysis and staff assignment is expressly listed as a Green 
factor. Plaintiffs assert that the evidence on staff which the 
Magistrate Judge deemed unreliable is a critical component of 
desegregation orders in general, and particularly, to the 
desegregation Order in this case.

Plaintiffs argue that, without exception, schools with 
higher percentages of black faculty *1325 and staff, fall into 
one (1) of three (3) categories: (1) a high percentage o f black 
student enrollment, (2) a historically black school prior to the 
1971 Order, or (3) a school located in the inner city. See (PX 
1 i (Appendix to Pis. Proposed Findings of Fact and Conclusions 
of Law)). Plaintiffs emphasize that the schools deviate 10% or 
more from the district-wide faculty and staff average and many 
deviate by 15% or more.

Conversely, Defendants argue that the Court's 1971 
desegregation Order, which dealt exclusively with student 
assignment, did not treat faculty and staff. Moreover, 
Defendants argue that when the Court ordered that, 
" [principals, teachers, teacher-aides and other staff . . .  be 
assigned so that the ratio of black to white teachers in each 
school, and the ratio of other staff in each are substantially the 
same as each such ratio is to the teachers and other staff, 
respectively, in the entire school system," the Court failed to 
provide a specific statistical variance which was to be used in 
assessing compliance with its directives. Defendants point out 
that, in the July 2, 1971, Order, the Court acknowledged that 
faculty desegregation had been accomplished in the 1970 school 
year and declined to continue the "detailed procedure" requested 
by Plaintiffs. (July 2, 1971, Order at 8). Nevertheless, the 
Court continued the requirement for faculty desegregation.

Defendants explain that they do not maintain data on 
faculty and staff broken down by certificated (teachers and other 
instructional staff) and non-certificated (aides) employees.



163a

Defendants assert that the collection of data in this manner is 
entirely consistent with the Court's previous orders, which dealt 
with all "staff who "work directly with children." Moreover, 
Defendants contend that, although the Court required that 
Defendants maintain faculties at each school which reflect the 
system-wide employment ratios and did not provide any 
specific level of hiring black teachers since the entry of the 
Court's 1971 Order, Defendants have attempted to meet a "self- 
imposed" goal of faculties which are 80% white and 20% black 
to reflect the system-wide race ratio of students in the system. 
(T2 at 106). Defendants admit that they have never met this 
goal; however, Defendants assert that they have made, and 
continue to make, efforts to meet the 20% goal.

The Court finds that Defendants have been complying 
in good faith with the Court's Orders and Defendants should 
continue their efforts until unitary status is declared. Among 
Defendants affirmative efforts are the adoption of the 
recommendations of the Minority Recruitment Task Force with 
regards to strategies and activities directed towards increasing 
the number of black teachers and administrators in the school 
system. (T2 at 107). Defendants have employed aggressive 
minority recruitment techniques which have been successful. 
Id. at 105-06. Defendants have also imposed certain 
restrictions on schools having less than 20% black faculties. 
For instance, the School Board prevents black teachers from 
moving away from a certain school when that teacher's presence 
is needed to maintain racial balance. In addition, the School 
Board prohibits a principal from hiring a white teacher at the 
imbalanced schools unless there are no suitable black 
candidates. (T2 at 115). The School Board imposes similar 
restrictions on black and white teachers with regards to transfers 
and reassignments. The School Board has been making 
administrative decisions solely based on the racial balance of 
the transferring and receiving schools.



164a

Despite the inability of the parties to agree on a standard 
on which to base compliance, the Court finds that Defendants' 
15% variance is useful. Although the Court commends 
Defendants efforts in this area, Defendants shall include staff 
assignments in their subsequent evaluations and provide 
evidence in this regard when unitary status is sought in the 
future. Moreover, the parties shall confer and endeavor to agree 
on a measurement to be used in subsequent submissions to the 
Court. Plaintiffs' objections to the Magistrate Judge's findings 
are overruled in all other respects.

C. Transportation

Plaintiffs object to the Magistrate Judge's findings 
concerning transportation of students in Hillsborough County 
because black students bear a disproportionate burden. 
Plaintiffs contend that, at the elementary *1326 school level, 
23% of all black students and 10% of all white students are 
transported for desegregation purposes. (PX 1 at 20; PX If). 
At the middle school level, 26% of all black students and 18% 
of all white students o f all white students are transported for 
desegregation purposes. Id. At the high school level, 24% of 
all black students and 8% of all white students are transported 
for desegregation purposes. Id. However, Plaintiffs concede 
that, to the extent busing is considered a burden on the student, 
these figures overstate the number of students bused for 
desegregation purposes because the figures include students 
who attend magnet schools and do so voluntarily. Nevertheless, 
Plaintiffs point out that black students are still more likely than 
whites to be assigned to a bus for desegregation purposes.

Plaintiffs argue that the issue of busing is directly linked 
to Defendants' student assignment and site selection policies. 
Particularly, Plaintiffs argue that, the perpetuation o f the 
satellite program places a disproportionate transportation 
burden on black students who live in the satellite areas.



165a

Moreover, Plaintiffs argue that the students who are bussed may 
be disadvantaged in terms of participation in extracurricular 
activities.

Conversely, Defendants argue that, in Mannings v. 
Board o f  Public Instruction, A ll  F.2d 874 (5th Cir.1970) 
("Mannings IIP), the Fifth Circuit found that the transportation 
system in Hillsborough County had been desegregated by this 
Court's May 15, 1967, Order. Id. at 876. The Circuit Court 
directed this Court to supplement that earlier decree to include 
the specific requirements of Singleton v. Jackson Municipal 
Separate School District, 419 F.2d 1211 (5th Cir.1969). In 
Singleton, the Fifth Circuit required school districts subject to 
desegregation orders to regularly re-examine their transportation 
systems to insure the provision of such services in a "non- 
segregated and otherwise non-discriminatory fashion." Id. at 
1218. This Court included this Singleton requirement in its 
July 2, 1971, Order.

Defendants point out that, despite the requirement of a 
non-discriminatory system, the Court did not impose any 
obligations on Defendants to monitor or ameliorate any busing 
"burden." Defendants emphasize that the desegregation plan 
actually imposed a greater transportation burden on black 
students because black schools were ordered closed or 
converted and by necessity, those children had to be transported 
elsewhere.

Plaintiffs raised this issue when Defendants initially 
proposed the desegregation plan and the Court addressed 
Plaintiffs' concerns. In the July 2, 1971, Order, the Court 
explained that implementing the desegregation plan would 
likely result in disproportionate busing of black students. 
However, the Court noted that, although proportionately more 
black students would be bused, the plan would result in the 
busing of fewer students overall, and that the alternative to the



166a

plan—maintaining the formerly black schools—would require the 
transportation of large numbers of white students, with the 
possible result o f " 'white flight' or 'black flight' or both."

The Court's orders have not been amended to deal with 
disproportionate burden on black students and Defendants 
cannot be charged with a duty that has never existed. 
Moreover, Plaintiffs agreed to the continuation of the 
transportation burden in the 1991 Consent Order. It would be 
unfair to require Defendants to monitor and /or account for the 
respective burdens associated with the transportation of students 
when such requirement was not a part of the desegregation 
order or subsequent orders. Furthermore, because Defendants 
must take whatever steps are necessary to affirmatively 
desegregate the schools to the maximum extent possible until 
unitary status is declared, specifically with regards to student 
assignments, the disproportionate burden will continue. 
Defendants shall continue to provide transportation on a non- 
discriminatory basis. Nevertheless, Defendants should continue 
to consider the burdens imposed by transporting all students 
when decisions are made regarding student assignments and site 
selection.49 Plaintiffs' objections to the Magistrate *1327 
Judge's findings with regards to transportation are overruled.

D. Extracurricular Activities

Plaintiffs also object to the Magistrate Judge's finding 
that extracurricular activities provided in the Hillsborough

49Defendants must remain cognizant of the correlation 
between site selection and the burden imposed on black students. 
While Defendants have noted the intention to reduce busing, if not 
enough facilities are being built in the inner-cities, black children, in 
particular, will require continued busing. These types of choices 
should be discussed openly between the parties.



167a

County school system are unitary. Primarily, Plaintiffs 
complain that Defendants fail to collect and maintain data as to 
each school in the system. Plaintiffs argue that, because 
Defendants have only provided evidence regarding athletics as 
opposed to all of the various other activities, there is insufficient 
information upon which to make a determination of unitary 
status.

There is no dispute that the Court did not impose any 
numerical or other requirements by race in connection with the 
participation of extracurricular activities. (T4 at 166-67). 
Defendants assert that, although they do not maintain data 
reflecting extracurricular participation by race by school, they 
do track participation in the district overall. The data compiled 
for 1995 reveals that black students made up 11% of the 
membership of national honor societies, 12% of drama clubs, 
27% of student councils, 20% of marching bands, 21% of other 
bands, 14% of orchestras, and 19% of choral groups. (PX 1 at 
27). The Court agrees with the Magistrate Judge that 
Defendants offer and maintain extracurricular activities on a 
non-segregated and otherwise nondiscriminatory basis. 
However, as Defendants aggressively employ desegregation 
techniques over the next few years, the Court expects that the 
representation of minorities in these various activities will 
continue to improve.

E. Resource Allocation

Plaintiffs argue that, overall, the data on resource 
allocation is so deficient that it is of little probative value. 
Plaintiffs assert that the data suffers from three (3) major 
deficiencies: (1) none of the data provided hereto is compared 
with information prior to the issuance of the 1971 Order; (2) 
only two (2) years of data are provided and not consecutive 
years; and (3) the analysis does not take into consideration the 
impact of the Middle School Plan. Plaintiffs argue that a



168a

comparison of resources allocated prior to 1971 is necessary in 
order to properly evaluate the prior de jure  segregated school 
system and the vestiges of that system that remains today. 
Moreover, Plaintiffs argue that two (2) years of data does not 
provide sufficient reliable information to evaluate. Finally, 
Plaintiffs contend that, because the Middle School Plan 
involves a tremendous overhaul of the entire school system, the 
two (2) years o f data used by Defendants is unreliable.

In addition, Plaintiffs argue that the teachers' resource 
information does not convey an accurate picture. Plaintiffs 
point out that the teachers' resource information includes 
resources, provided as a result of Chapter I funds. Chapter I 
funds provide significant resources based on the socioeconomic 
status of the students. (T7 at 93-95). As a result, Plaintiffs 
argue that, the inclusion of these Chapter I funds without 
indicating how this support affects the amount of resources can 
be misleading. Therefore, according to Plaintiffs, this is not a 
reliable indicator of how the school district actually distributes 
its resources.

Furthermore, Plaintiffs explain that the operational 
analysis includes information on teacher salaries and benefits, 
textbooks, instructional equipment, maintenance, and other 
categories. See (DX1 at 16-19). However, Plaintiffs assert that, 
because only two (2) years of data were provided, a dozen 
schools were excluded from the analysis on supplies and 
equipment expenditures. As a result, Plaintiffs assert that 
Defendants' data is unreliable.

Conversely, Defendants argue that the analysis provided 
by Dr. Armor is sufficient. Dr. Armor compared the allocation 
o f teacher resources between schools having black enrollments 
greater than 40% and schools having black enrollments less 
than 40%. Defendants explain that the availability and 
distribution of funds is controlled to a large extent by state law



169a

and/or administrative regulation. The funds needed to operate 
the schools come from three (3) sources: (1) the federal 
government; (2) the State of Florida; and (3) local revenues. 
Defendants contend that, with regards to operations, the state 
money received by Defendants is distributed according to a 
weighted formula based on the numbers and educational types 
of students *1328 enrolled during a given fiscal year. (T1 at 
186). Defendants emphasize that both the state and federal 
governments audit Defendants to ensure that funds provided to 
the Hillsborough County schools are expended for the activities 
and programs for which they are provided and on an equitable 
basis. (T1 at 190-91; 195-96).

Defendants point out that the sample which was used 
demonstrates that the allocation of resources and expenditures 
was comparable for all schools regardless of whether the school 
was greater than or less than 40% black. With regards to 
teacher resources, Dr. Armor focused on expenditures for 
instructional salaries, instmctional supplies, and for all 
purposes. (DX1 at 16-19). In the 1992-1993 school year, per 
capita expenditures for instmctional salaries for elementary 
schools which had black enrollments in excess of 40% were 
slightly lower than expenditures for other schools. However, 
these expenditures were slightly higher for junior high schools 
which had black enrollments of 40% or higher. (DX1, Chart 
37). For the 1994-1995 school year, the expenditures were 
slightly higher at schools with black enrollments below 40% 
than schools with black enrollments exceeding 40%; however, 
the differences were not remarkable. (DX1, Chart 40).

In the area of expenditures for instmctional supplies and 
equipment, the evidence showed that these expenditures were 
slightly higher for elementary and junior high schools with 
black enrollments below 40% for both years examined. (DX1, 
Charts 38,41). Defendants maintain that these differences were 
attributed to conversion funds distributed to schools which were



170a

newly constructed or reconfigured pursuant to the Middle 
School Plan. Defendants assert that most schools with 40% or 
more black enrollments were not scheduled for conversion until 
the 1996-1997 and 1997-1998 school years; therefore, the 
amounts distributed will be similar upon their conversion.

Moreover, according to Defendants, all of the resources 
with regards to instructional supplies and equipment are 
distributed on a per pupil basis to all schools, based on 
programmatic needs. (T7 at 192-95). Defendants explain that 
the only exception to this method of distribution is that schools 
which are converted to different grade configurations pursuant 
to the Middle School Plan are afforded additional monies, 
which while computed on a per pupil basis, are only available 
to those schools undergoing conversion. (T7 193-94).

Furthermore, with regards to total per capita 
expenditures, Defendants' analysis showed that in the 1992- 
1993 school year, the expenditures were very similar for 
elementary schools, regardless of racial composition, and 
expenditures were higher in the junior high schools which were 
40% or more black. (DX 1, Chart 39). In the 1993-1994 school 
year, elementary schools that were over 40% black received 
higher per capita distributions, while junior high schools were 
nearly identical, regardless of racial compositions. (DX1, Chart 
42).

Dr. Armor also reviewed capital expenditures on a five 
(5) year basis (1991 to 1995) because capital expenditures are 
"one-time costs, spread over two or more years." (DX 1 at 19). 
The expenditures were examined on a per school basis, 
comparing expenditures on inner city schools, which were 
comprised o f the highest concentration of black students, with 
other schools. The analysis demonstrated that expenditures on 
inner city schools exceeded those on other schools. (DX 1, 
Chart 43).



171a

Furthermore, Defendants explained that in addition to 
monies received from state and local sources, schools having 
certain levels of students receiving free and reduced lunches are 
eligible for federal monies, which may be used only at 
qualifying schools. (T7 at 93-96); (DX 37); (T1 at 190-91). 
These qualifying schools include many of the over 40% black 
schools. Defendants stress that this additional money is used to 
reduce class sizes and/or provide additional social and 
psychological services, as determined by the individual schools. 
(T7 at 95).

Defendants' distribution of teacher and financial 
resources reveals no pattern of discrimination and Plaintiffs' 
objections are overruled thereto. However, as the School Board 
continues to implement the Middle School Plan and to make 
adjustments pursuant to this Order, the School Board shall 
continue to evaluate its resource allocations. *1329 Moreover, 
the School Board should provide Plaintiffs with records of 
resource allocations for each year following this Order until 
unitary status is declared. The parties shall confer and attempt 
to agree on the substance and format of those records.

F. Facilities

Plaintiffs object to the Magistrate Judge's determination 
that the school system is unitary with respect to facilities. 
Plaintiffs assert th a t" [Defendants' site selection policies and 
practices suggest that the placement and construction of new 
facilities have exacerbated racial identifiability." (Br. in Supp. 
of Pis.' Obj. to R & R at 32). Plaintiffs contend that Defendants 
failed to provide any documentation concerning: (1) the reasons 
a particular school site was selected; (2) a summary analysis of 
the impact of a selected site on desegregation; (3) alternative 
sites which were considered and rejected; and (4) the reason for 
rejecting an alternative site, including consideration of the 
alternative sites' impact on desegregation.



172a

Plaintiffs contend that it is clear from Defendants' own 
data that they did not address racial identifiability when schools 
were opened and closed. For example, Plaintiffs point out that, 
from 1977 through 1995, twenty-four (24) elementary schools 
were opened and eight (8) elementary schools were closed. 
During this period, there were fourteen (14) racially identifiable 
schools which had black populations of 40% or more. (PX1 at 
8). Plaintiffs emphasize that, despite the opening and closing 
of several elementary schools over the years, none of the 
fourteen (14) racially identifiable schools were further 
desegregated by Defendants' decisions. Plaintiffs argue that, 
Defendants have not merely lost desegregation opportunities, 
but have actively promoted segregation in the community.

Conversely, Defendants assert that they have taken care 
to ensure that their actions in site selection and school 
construction do not cause a return to a dual system. Defendants 
emphasize that the School Board has not built any new schools 
since 1971 which entailed an all-white or majority black 
enrollment. Moreover, Defendants maintain that, despite the 
fact that most of the new construction has taken place in the 
suburbs, the School Board has also expended a substantial 
portion of its capital funds on construction and remodeling 
projects for inner city schools, some of which have opened as 
magnet schools to foster desegregation.

There is no question that the location of new schools has 
an immense impact on the community as a whole. The 
Supreme Court has repeatedly articulated the import of such 
decisions.

The construction of new schools and the closing of old 
ones are two of the most important functions o f local 
school authorities and also two of the most complex. 
They must decide questions of population growth, 
finances, land values, site availability, through an



173a

almost endless list of factors to be considered. The 
result of this will be a decision which, when combined 
with one technique or another of student assignment, 
will determine the racial composition of the student 
body in each school in the system. Over the long run, 
the consequences of the choices will be far reaching. 
People gravitate toward school facilities, just as schools 
are located in response to the needs of people. The 
location of schools may thus influence the patterns of 
residential development of a metropolitan area and have 
important impact on composition of inner-city 
neighborhoods.

Swann, 402 U.S. at 20-21, 91 S. Ct. 1267.

As discussed above, Defendants have failed to 
aggressively combat segregation. Unfortunately, Defendants' 
shortcomings with regards to student assignments may have 
contributed to the fact that more schools are needed in the 
predominately white suburbs. Undoubtedly, it is impossible to 
determine the precise effects of the School Boards' decisions 
over the past twenty-seven (27) years on the residential patterns 
in Hillsborough County. However, Defendants' lack of good 
faith commitment over the years, in conjunction with 
Defendants' decisions to build the majority of new schools in 
the areas of white suburban expansion farthest from the areas 
with concentrated black populations, causes this Court concern. 
Moreover, Defendants' position that they were not required to 
take affirmative action, once the initial system of *1330 
nondiscriminatory attendance patterns was implemented, 
undermines their contentions that they have not contributed to 
the racial identifiability of Hillsborough County schools.

Nevertheless, the Court finds that Defendants' evidence 
demonstrates that the opening and closing of schools has 
generally maintained or improved racial balance. See (DX 3



174a

and DX 4). While the Court expects additional documentation 
to be provided on this subject when unitary status is considered 
in the future, the Court is not inclined to become further 
entangled in the complex educational policies involved in new 
school construction and school abandonment decisions.50 
Instead, the Court will afford Defendants the opportunity to 
demonstrate that state-imposed segregation no longer exists.

In addition, the parties addressed the issues concerning 
overcrowding. Plaintiffs argue that, not only has the School 
Board selected sites in predominately, if  not exclusively, white 
neighborhoods, but there is evidence that schools which are 
twenty (20) percentage points above the district-wide black 
population are more likely to be overcrowded than any other 
Hillsborough County schools. However, as noted above, 
Plaintiffs' evidence regarding FISH capacities does not include 
portable classrooms; therefore, schools that exceed their FISH 
capacities are not necessarily overcrowded. Notwithstanding, 
the use of portable classrooms is relevant to the inquiry o f the 
equality of school facilities. While a school may not be 
"overcrowded" because of the extensive use of portable 
classrooms, the fact that brand new schools are being built 
elsewhere should be evaluated. Defendants shall make this 
evaluation and demonstrate that new school construction 
decisions have taken into consideration the discrepancies

50The Court expects Defendants to provide Plaintiffs with 
sufficient information so that the decisions made by the School 
Board, with regard to construction and abandonment of schools, can 
be adequately evaluated. Plaintiffs have already articulated the 
documentation which they believe is necessary. However, since the 
parties will be working very closely to insure that a unitary school 
system is forthcoming, the Court finds it unnecessary, at this point, 
to define the parameters of the communication between the parties on 
this topic.



175a

between the use of portable classrooms at racially balanced and 
unbalanced schools.

G. Quality o f  Education

With regard to quality of education, Plaintiffs argue that 
socioeconomic factors do not adequately explain the disparity 
in academic achievement levels among black and white 
students. Plaintiffs argue that Defendants' evidence is 
insufficient and the differences in achievement levels 
demonstrate vestiges of the prior de jure  segregated schools 
system.

Significantly, the Court's orders contain no specified 
levels of student achievement, nor any standard to evaluate 
quality o f education. To a large extent, the quality of education 
being provided in Hillsborough County must be scrutinized in 
connection with the other factors which the Court has 
previously reviewed, particularly in connection with the 
facilities provided and the allocation o f resources. In addition, 
however, the parties have generally agreed on several areas of 
the Defendants' operations which should be addressed in 
regards to j udging the equality of educational opportunity being 
afforded to students. These include dropout rates, suspension 
rates, gifted child education programs, and academic outcome.

As discussed above, Defendants need to evaluate certain 
facets o f the school system with regards to the equality of 
facilities. Moreover, Defendants shall provide Plaintiffs with 
the documentation necessary so that productive discussions and 
negotiations between the parties can ensue. With regards to 
resource allocations, there is no indication that the Defendants 
have violated the Fourteenth Amendment and this area merely 
needs to be monitored by Defendants as they continue to 
implement the desegregation plan, as well as, the Middle 
School Plan. No further discussion is required on these issues.



176a

(i) Dropout Rates

Both Dr. Armor and Dr. Stevens addressed dropout rates 
at the evidentiary hearing. Although Plaintiffs did not present 
*1331 any independent evidence on the subject, they take issue 
with analyses conducted by Dr. Armor relating to academic 
outcomes, but not to the use of that factor. Dr. Stevens notes 
that black students drop out of school at rates disproportionate 
to their presence in the general student population. (PX 1 at 31 - 
32). Similar to the issues concerning suspensions, Dr. Stevens 
does not allege a discriminatory basis for this result, but calls 
for increased monitoring, and, a different method of record 
keeping. Id. at 32.

Significantly, Defendants monitor dropout rates, and 
they maintain a program designed to reduce the number of 
dropouts, without regard to race. That program is multifaceted, 
including several components. One is the Personalized 
Education Program ("PEP"), which is based in the elementary 
schools, and focuses on academic interventions in the areas of 
reading, math, and skills development. (T7 at 206-07). In 
middle and junior high schools, Defendants endeavor to predict 
which students are at risk of dropping out and again focus on 
academic skills by using teachers with lower pupil to teacher 
ratios. (T7 at 207). Additional counselors and teachers are 
provided at senior high schools. Id. Moreover, prospective 
dropouts are assigned either on a voluntary basis or by 
administrative action to alternative schools. Id. As with 
suspensions, the defendants monitor dropouts and report them 
monthly to principals, with the expectation that they will follow 
up as part of a "dropout retrieval program." Id. As a result of 
these efforts, Defendants' dropout rates are the lowest in the 
state for districts of its size. (T7 at 208-09).

Dr. Armor presented an analysis of the differences in 
dropout rates between black and white students. Under this



177a

analysis, and after controlling for the socioeconomic status 
("SES") factors of free lunch eligibility and family structure, 
virtually all of the gap between black and white statistics is 
explained. (DX 1 at 24 and Chart 54). Even if adult education 
students are included within the dropout statistics, nearly three- 
fourths of the difference is explained, and the predicted 
difference between black and white rates is 3%. Id. Plaintiffs' 
objections to the Magistrate Judge's findings are overruled.

(ii) Suspensions

With regards to student suspensions, Dr. Stevens notes 
that black students are suspended from school for disciplinary 
purposes at a rate which is disproportionate to their presence in 
the school population. Dr. Stevens also notes that the rate of 
suspension was two (2) to four (4) times as high for black 
students as for whites from 1991 to 1994. However Plaintiffs 
do not cite these statistics as necessitating a conclusion that 
racial discrimination has occurred. Indeed, Dr. Stevens testified 
that they are not unusual. (T4 at 145). Nevertheless, he 
expressed concern over the obvious fact that a suspension 
deprives the disciplined student of the educational opportunities 
which are provided during the term of the suspension. (T4 at 
145-46). Additionally, Dr. Stevens suggested that the data 
demonstrates the need for further analysis by Defendants to 
ensure that they do not result from discriminatory treatment. 
(PX 1 at 29-30).

Defendants have been monitoring the suspension rates 
in Hillsborough County. In fact, the data relied upon by Dr. 
Stevens was collected by Defendants, who track suspensions 
and expulsions, by sex, race, and age. (T7 at 234). The 
suspension rates in Hillsborough County are slightly below 
State of Florida averages "for some groups." Id. Significantly, 
there is no evidence to suggest that the disproportionate



178a

suspension rates are the result of discrimination by Defendants. 
Consequently, Plaintiffs' objections in this regard are overruled.

(iii) Gifted Program

In addition, both parties agree that gifted child education 
should be reviewed as well. As discussed below, Defendants 
implemented a program ("Plan B") in 1993 to facilitate 
admission of disadvantaged students to the gifted programs. 
See (T2 at 151). The standard for admission to gifted programs 
offered by the Defendants is a tested IQ of at least 130. This 
requirement is set by the State of Florida for that part of the 
program and is referred to as "Plan A." (T2 at 153).
Previously, Defendants could not deviate from this prerequisite. 
(T2 at 155-56). However, in 1991, the State allowed school 
*1332 districts to formulate plans for "Plan B," which was 
designed to facilitate admission of disadvantaged students to the 
gifted programs. (T2- 151). Participation in Plan B is 
voluntary. (T2-153). Defendants elected to participate in Plan 
B as soon as it was allowed, completing their plan and obtaining 
state approval in 1993. (T2-151). Plan B allows students with 
an IQ of 115, demonstrated academic achievement, and certain 
personal characteristics to be admitted to the same program in 
which those with the higher IQ are enrolled. (T2 at 154). 
Nevertheless, prior to Plan B, the State standard for gifted class 
admissions was applied without regard to the race of the 
student. (T2 at 156-57).

As of October 1996, gifted programs in Hillsborough 
County included 8,219 white students (74.5%), 1,015 black 
students (9.2%), 1,249 Hispanic students (11.3%), 481 Asian 
students (4.0%), 71 Indian students (less than 1 %), and 27 multi 
cultural students (less than 1%). (T2 at 151-52). Dr. Stevens 
notes that while black enrollment district-wide is 23%, black 
students constitute only 9% of those children enrolled in the 
Defendants' gifted education programs. (PX1 at 30).



179a

Moreover, Dr. Stevens reported that 9.2% of all white children 
have been assessed as gifted, whereas, only 2.9% of the black 
students in the county have been so classified. (PX 1 at 30). 
Dr. Stevens emphasized that white students are three (3) times 
more likely than black students to be identified as gifted. Id. 
Significantly, Dr. Stevens admitted that these figures do not 
evidence racial discrimination, however, he does suggest 
increased scrutiny. The Court agrees that there is no indication 
that student placement is connected to race, and, consequently, 
Plaintiffs' objections to the Magistrate Judge's findings with 
regards to the School Board's gifted programs are overruled.

(iv) Academic Outcome

Dr. Armor examined several factors relating to academic 
outcomes, including achievement test scores, outcomes for 
seniors, and school effects. Data relating to Hillsborough 
County students demonstrates that there are differences between 
the achievement test scores of black students and their white 
counterparts. However, these results are not unique to 
Defendants' school system. Nationally, achievement gaps 
between students of the two (2) races range from two-thirds to 
four-fifths of a standard deviation, depending on the test in 
question and the grade level of the students taking it. (DX 1 at 
21).

The results of tests administered to fifth grade students 
in Hillsborough County in 1994 and 1995 produced a gap of 16 
to 17 points between black and white students. This difference 
represents approximately three-fourths of a standard deviation, 
which is consistent with the national statistics cited by Dr. 
Armor. (DX 1 at 22). In addition, Dr. Armor analyzed the data 
just- described, and controlled for certain SES factors. The 
particular factors which Dr. Armor used were poverty level 
(using free lunch eligibility), number of parents in the 
household, average income, and parent education level. When



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he performed this analysis on the fifth grade students who took 
the tests in 1995, controlling for the identified SES measures, 
60% of the gap between the races was explained. (DX 1 at 23 
and Chart 46). Dr. Armor also controlled for SES factors while 
adding the test takers' first grade reading test results as a proxy 
for the level of preparedness of students upon beginning their 
schooling. He was able to explain some 90% of the gap 
between the scores of whites and blacks using this analysis. 
(DX 1 at Chart 47).

Using the same methods for the 1994 school year, Dr. 
Armor obtained similar results. (DX 1 at Charts 48 and 49). In 
Dr. Armor's opinion, these findings show that race does not 
predict lower achievement test results for black Hillsborough 
County students. However, Plaintiffs' expert, Dr. Robert Crain, 
took exception with Dr. Armor's analysis. Nevertheless, when 
Dr. Crain used the same control factors as Dr. Armor, his results 
were substantially similar. (T6 at 265-66).

Dr. Crain questioned Dr. Armor's use of first grade 
reading scores, and the source of other factors Armor used. In 
his initial report, Dr. Crain questioned Defendants' use of first 
grade reading scores on the basis of their "notorious" 
unreliability. (PX 3 at 1). At the hearing, however, Dr. Crain 
did not *1333 rely on this criticism, focusing instead on the 
impropriety of these scores as a control because they do not 
demonstrate initial skills prior to schooling. (T6 at 162-63). 
Notwithstanding, Dr. Crain conceded that a child's 
characteristics at the beginning of his or her education do affect 
performance. (T6 at 243-44). Dr. Crain performed an analysis 
using only the variables of free lunch and two (2) parents. (T6 
at 266). This study produced a predictive line of regression 
which is parallel to that of Dr. Armor's study, indicating a 
similar effect. Although Dr. Crain conducted this analysis, he 
did not produce these results for the Court. Id. Neither did he



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test the statistical significance of any differences between his 
analysis and that of Dr. Armor. (T6 at 270).

Although Dr. Crain's concerns are understandable, he 
has not provided a rational basis for rejecting Dr. Armor's 
analysis. The use of neighborhood data could be replaced only 
through individual surveys of each family. While the factors 
used by Dr. Armor might themselves be affected by race, Dr. 
Crain does not explain how this possibility is any more 
impairing when using income, the use of which Dr. Crain 
criticizes, than for poverty, the use which he does not criticize.

Dr. Crain also objected to Dr. Armor's use of a single 
model, combining black and white students, believing that 
separate models were more appropriate. (T6 at 176-77). Dr. 
Armor testified that earlier studies used two models based on 
differences in the educational outcomes of the two (2) races, but 
more recent studies have not disclosed such a difference and 
therefore rely on single models. (T7 at 182-84). Significantly, 
Dr. Crain's two (2) models did not produce different results.

Dr. Armor also examined reading achievement of black 
students based on the racial makeup of their schools. (DX 1 at 
26 and Chart 56). Dr. Armor found that a gap between these 
students and their white counterparts existed, even when the 
black children attended schools which were less than 40% 
black. Dr. Armor's analysis also found that black students who 
attended such schools scored two (2) points lower than black 
students at schools with over 40% black populations. However, 
when the analysis controlled for SES variables, the gap 
disappeared. Id.

Dr. Crain criticized these portions of Dr. Armor's 
findings as well, but this was based on his use of a different 
type of statistical analysis, described as a "one-tailed test." 
Ordinarily, a "two-tailed test" is used to analyze a sample of



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data. The tails refer to the two halves of a bell curve which 
predict the outcomes of the test. A one-tailed test eliminates all 
outcomes which fall in one half of that curve. Dr. Crain 
admitted that the use of the one-tail model is allowable only 
when the tester has an independent basis for predicting 
outcomes. (T6 at 273).

In this case, Dr. Crain justified the use of that model by 
stating that "no one in his right mind" would expect a black 
child to perform better academically in a school which is more 
than 40% black. (T6 at 274). Significantly, Dr. Crain did not 
provide any basis for this belief; therefore, there is no basis for 
using the one-tailed analysis. Dr. Armor testified to studies 
showing that blacks can, in fact, perform better academically in 
an all-black school when compared with their integrated 
counterparts. (T7 at 161-62). Indeed, within the "tail" which 
Dr. Crain eliminated from his analysis, were examples o f black 
children who outperformed their counterparts in schools with 
lower black populations. Robles, which has the highest 
percentage of black students, falls exactly where statistically 
predicted. (T7 at 165). Interestingly, Dr. Crain testified that, 
even using the one-tail model, he found no difference between 
student achievement on math tests by fifth graders who attended 
schools that were more than 40% black. (T6 at 281-82). 
Clearly, Plaintiffs' argument that there is a possibility of race- 
based differences between the quality of education Defendants 
provide to black students in reading, but not in math, is 
illogical.

Defendants have tracked the educational achievement of 
its students, by race, on several occasions over the last nineteen 
(19) years, and continue to do so. (T2 at 147). Black students 
in Hillsborough County outperform black counterparts 
nationally and in the State of Florida on Scholastic Assessment 
Tests taken by 47% of all seniors. (T2 *1334 at 141). Black 
students in the county also outperform other black students in



183a

the State on the standardized test required for graduation. Id. 
Additionally, Defendants have performed their own analysis of 
the impact of attendance at the over 40% black schools upon 
black achievement. After controlling for SES variables, no 
impact was found, which result was consistent with Dr. Armor's 
analysis. (T2 at 143).

The Court finds that the educational programs in 
Hillsborough County are provided on a fair and equal basis to 
students of all races. Although some differences in academic 
performance exist between black and white students depending 
on their race, these differences are the result of socioeconomic 
factors unrelated to the schools. While this discrepancy is 
unfortunate, it is not the result of segregation nor evidence of 
vestiges of a prior de jure  system. In Swann, the Supreme 
Court articulated the limitations of the courts' remedies.

We are concerned in these cases with the elimination of 
discrimination inherent in the dual school systems, not 
the myriad factors of human existence which can cause 
discrimination in a multitude of ways on racial, 
religious, or ethnic grounds. The target of the 
[desegregation cases] was the dual school system. The 
elimination of racial discrimination in public schools is 
a large task and one that should not be retarded by 
efforts to achieve broader purposes lying beyond the 
jurisdiction of school authorities. One vehicle can carry 
only a limited amount of baggage.

Swann, 402 U.S. at 22-23, 91 S. Ct. 1267. Plaintiffs' objections 
with regards to the quality of education provided by Defendants 
are overruled. III.

III. Conclusion



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"[T]he court's end purpose must be to remedy the 
violation and, in addition, to restore state and local authorities 
to the control of a school system that is operating in compliance 
with the Constitution." Freeman, 503 U.S. at 489, 112 S. Ct. 
1430. The Court does not wish to supervise the School Board 
any longer; however, supervision remains necessary. The 
Court believes that this case is nearing its completion, but there 
is more work to be done. Nevertheless, the Court anticipates 
that "unitary status" will be achieved over the next few years.

Contrary to the parties' submissions, they are not as 
divided and polarized as it appears. Unfortunately, the inherent 
nature o f the adversarial process encourages litigants to 
emphasize and accentuate their differences. Notwithstanding, 
the parties should be able to work together to achieve unitary 
status within a few years. Significantly, the 2000 census will 
soon be available to the parties which will provide updated data 
which will add to the understanding of the circumstances in 
Hillsborough County, specifically with regards to the Middle 
School Plan being implemented.

Unitary status is not a concrete concept and involves 
management of innumerable issues. It is not always black and 
white. One non-quantitative factor of particular significance is 
whether the School Board has sufficiently demonstrated good 
faith compliance with regards to both the operation of the 
educational system in general and the implementation of the 
Court's desegregation orders. At this point, Defendants have 
failed to show that further oversight is no longer necessary to 
avoid an imminent return to the unconstitutional conditions that 
led to the Court's intervention.

As discussed above, the Court finds that Defendants 
have failed to demonstrate a good faith commitment to the 
Court's desegregation orders. Unfortunately, this lack of good 
faith taints the analysis of the other facets o f the school district's



185a

operations. Because some of the schools in the system are 
racially identifiable, there is a presumption that the racial 
identifiability is traceable to the prior de jure system. Because 
Defendants have not hilly embraced their affirmative duty, 
Defendants have not desegregated the school district to the 
maximum extent practicable. The relevance of good faith is 
that it conveys the notion that unitariness is less of a 
quantifiable moment in the history of a desegregation plan than 
it is the general state of successful desegregation. With each 
instance of a failure or refusal to fulfill their affirmative duty, 
Defendants have continued to violate the Fourteenth 
Amendment. As a *1335 result, the Court is compelled to 
retain jurisdiction.

It is very difficult in a case such as this to categorize 
different aspects of the school system and declare individual 
areas unitary. Especially because the Court is convinced that 
Defendants' failure to demonstrate a good faith commitment has 
continued the constitutional violation and has diminished the 
availability of effective remedies. Clearly, Defendants need to 
address the issue of student assignments. Because of the 
passage of time and the construction and abandonment of 
schools, there are limitations on what can be accomplished. 
Nevertheless, Defendants have various desegregative techniques 
available and have the benefit of evaluating the techniques 
employed in other school districts. The School Board should 
not have to be told what to do at every turn; Defendants must be 
willing to take the reins. The School Board should initiate 
affirmative desegregation policies and practices to demonstrate 
that supervision by the Court can cease. By working with 
Plaintiffs to achieve unitary status, the parties can avoid 
unnecessary polarization and accomplish the task at hand 
relatively quickly.

After evaluating the voluminous record in this case, the 
Court is convinced that Defendants have a short road to travel.



186a

Essentially, Defendants need to demonstrate that they are 
willing to aggressively desegregate the school district to the 
maximum extent practicable. Defendants should evaluate 
desegregation tools that have been successful in other districts 
and determine whether they can be effectively employed in this 
school district. Secondly, Defendants need to provide Plaintiffs 
with the necessary documentation so that Plaintiffs can conduct 
independent analysis and provide input with regards to 
desegregating the district. While Defendants are not bound to 
implement any policies or procedures that Plaintiffs may 
recommend, the insight into Plaintiffs' perspectives will prove 
to be invaluable. Moreover, Defendants should document and 
chronologize the affirmative steps taken from the date of this 
Order.

The school district has changed a great deal since this 
suit was filed. Hillsborough County enjoys a diverse population 
which includes people of every race and national origin. The 
concept of unitary status should likewise account for the change 
in Hillsborough County's change in demography. Neither the 
county nor the concept of unitariness can be confined to black 
and white issues. It is questionable whether the 80/20 ratio 
remains as an appropriate a starting point. For instance, in 
1990, approximately 14% of the school-aged population was 
considered to be of Spanish descent. (DX 2 table 1). Moreover, 
approximately 5% were classified as "other." Id. However, the 
parties failed to address these significant variables. Defendants 
bear the burden of proof. Accordingly, it is

ORDERED that the Magistrate Judge's Report and 
Recommendation (Docket No. 809) be adopted in part and 
rejected in part; Defendants have failed to prove that the racial 
imbalances in the school system are not traceable, in a 
proximate way, to vestiges of past discrimination; Defendants 
have failed to demonstrate a good faith commitment to this 
Court's desegregation orders; the Hillsborough County public



187a

school system is not unitary; Defendants remain subject to the 
Court's 1971 desegregation Order and the 1991 Consent Order; 
Defendants shall discharge their duties consistent with this 
Order; Plaintiffs' Motion to Enforce (Docket No. 753) is 
DENIED as moot; and jurisdiction is retained.



188a

Report and Recommendation of Magistrate Judge 
August 26,1997

UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 

TAMPA DIVISION

ANDREW L. MANNING, et al.,

Plaintiffs,

v. Case No. 58-3554-CIV-T-17C

THE SCHOOL BOARD OF HILLSBOROUGH 
COUNTY, FLORIDA (formerly BOARD 
OF PUBLIC INSTRUCTION OF HILLSBOROUGH 
COUNTY, FLORIDA), et al.

Defendants.
/

REPORT AND RECOMMENDATION

Before the Court is the issue of whether the public 
school system of Hillsborough County has attained unitary 
status and should be released from court supervision. This issue 
has been referred to the undersigned Magistrate Judge for 
evidentiary hearing and a report and recommendation.

BACKGROUND

When this lawsuit was filed in 1958 on behalf of black 
school children, the public school system of Hillsborough 
County maintained racially segregated schools and black and 
white pupils were not permitted to attend the same schools. 
During the next thirteen years various methods were employed



189a

to desegregate the schools, at the Court's direction, and appeals 
from those orders consumed much of that time.

In May 1971 the Court found that these methods had 
failed to desegregate the schools and ordered the School Board 
to immediately implement a plan to bring the school system in 
compliance with the Constitution. Since July 1971, the 
Hillsborough County School Board (“School Board”) has 
operated under this Court’s desegregation orders. The 
desegregation plan implemented by defendants and approved by 
the court and plaintiffs shifted focus in 1991 when the School 
Board adopted a middle school plan and the Court, with the 
consent of the parties, entered a Consent Order which modified 
the 1971 Order particularly as to student assignments within a 
group or "cluster" of schools.

In 1994, plaintiffs filed a motion contending that 
defendants had violated the terms of the July 1971 Order and 
1991 Consent order by allowing certain schools to become 
"racially identifiable." The motion was referred for a report and 
recommendation. Following an evidentiary hearing, the 
undersigned Magistrate Judge recommended denial of plaintiffs' 
motion to enforce court order for failure to establish a violation 
of the Court's orders.

On November 17, 1995, this Court deferred ruling on 
the report and recommendation, noting that the dispute involved 
in plaintiffs' motion to enforce focused on student assignment. 
The Court found that the parties' discussion of the issue 
"demonstrates the need to expand the scope of the inquiry to a 
full fledged determination of whether the Hillsborough county 
school system has in fact achieved unitary status." (Order 
Recommitting Matter to Magistrate, Dkt. 709, at 3) ("Order of 
Referral") The Court ordered:



190a

a showing by Defendants as to whether they have 
complied with this Court's 1971 Order regarding the 
factors set forth by the United States Supreme Court in 
Green v. New Kent County School Bd.. 391 U.S. 430 
(1968). In addition to student assignments, Green ;and 
Freeman require that faculty and staff assignments, 
transportation, extracuricular activities, facilities and 
resource allocation all be free from racial 
discrimination. In each of these areas, the school board 
bears the burden of showing that any current imbalance 
is not raceable, in a proximate way, to the prior 
constitutional violation of the of Plaintiffs’ rights. 
Freeman, 503 U.S. at 494. The quality of education 
being received by all students and the good faith 
commitment by the School Board must be shown.

Following the referral order, the undersigned Magistrate 
Judge set a hearing on the unitary status determination and 
thereafter conducted monthly status conferences with counsel 
for the parties. The parties exchanged discovery and retained 
expert witnesses.

After the evidentiary hearing was transcribed, the parties 
filed proposed findings of fact and conclusions of law (Dkts. 
796 and 797) which were supplemented after the filing of the 
6th Annual Report to the Consent Order. (Dkts. 803 and 805) 
Closing arguments were presented on May 22, 1997.

For the following reasons, it is recommended that this 
Court find that the public school system of Hillsborough County 
has attained unitary status in that defendants have eliminated, to 
the extent practicable, the vestiges of the prior de jure 
segregated school system and have complied in good faith with 
this Court's orders.



191a

Pursuant to the referral order, the following proposed 
findings of fact and conclusions of law are submitted1.

FINDINGS OF FACT

1. This action was filed on December 12,195 8 on behalf 
of plaintiff Andrew Manning* 2.

2. The Court initially dismissed the complaint for the 
plaintiffs' failure to exhaust administrative remedies, but the 
dismissal was reversed by the court of appeals, which remanded 
the case for further proceedings. See Mannings v Board of 
Public Instruction. 277 F.2d 370, 375 (5th Cir. 1960) 
("Mannings I"T

3. Following remand, the Court conducted a non-jury 
trial, after which, on August 21, 1962, the Court entered an 
order finding that the defendants were in fact maintaining an 
unlawfully segregated system of public schools. To remedy the 
violation, the Court enjoined the defendants from operating a 
racially discriminatory school system and allowed them until 
October 30,1962, in which to file a comprehensive plan for the 
desegregation of the schools.

4. For approximately the next nine and one-half years, 
this Court issued various orders and the School Board devised

‘Some of the findings set forth in this Report and 
Recommendation have been stipulated bo by the parties (Dkt. 767) 
or are taken from the prior Report and Recommendation (“Prior R 
and R”) dated June 23, 1995 (Dkt. 699) which addressed plaintiffs’ 
Amended Motion to Enforce Court Order (Dkts. 601, 602). Record 
cities are not provided for stipulations.

2At the unitary status hearing, Mr. Manning revealed that his 
name had been misspelled as “Mannings” in court documents.



192a

various desegregation Hillsborough County’s schools. See 
Mannings v. Board of Public Instruction of Hillsborough 
County. 306 F. Supp. 497 (M.D. Fla. 1969) (“Mannings IP ), 
rev’d. Mannings v. Board of Public Information. 427 F. 2d 874, 
875, (5th Cir. 1970) (“Mannings HIM

5. On May 11, 1971, the Court entered an order 
directing the School board to prepare and implement a 
comprehensive plan for desegregating the Hillsborough County 
School system. (May 1971 Order, Dkt. 636 at 43) (hereafter 
"May 1971 order”).

6. The Court's May 1971 Order (at 43-44) directed that:

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

(b) In preparing the plan the school board shall begin 
with the proposition that a white-black ratio of 
86%/14% in the senior high schools, 80%/20% in the 
junior high schools, and 79%/21% in the elementary 
schools would be the most acceptable and desirable 
form of desegregation.

7. On July 2, 1971, this Court approved for 
implementation the plan of desegregation developed and 
submitted by the School Board (hereafter "July 1971 Order0) In 
the July 1971 Order, the Court expressly retained jurisdiction 
"for such further action as may be necessary and required." 8

8. The 1971 plan was designed to desegregate student 
enrollment in grades 1-12, as required by the Court; it did not 
include kindergarten classes, to which students continue to be



193a

assigned on a neighborhood basis, nor did it include pre-school 
(early childhood education) classes.

9. The 1971 plan required the conversion of twelve 
formerly all-black elementary schools in the “inner city” area of 
Tampa3 to single-grade attendance centers serving the 6th grade.

10. Under the 1971 plan, each elementary grade-level 
(1-5) attendance area of each of these formerly all-black 
elementary schools was subdivided into between two and five 
"satellite areas"; students residing in each of these "satellite 
areas"4 were assigned to attend a formerly white school, to 
which they were transported for grades 1-5.

11. Under the 1971 plan, Lee Elementary School was to 
serve grades 1-5. The attendance area established for Lee 
Elementary School in the 1971 plan was not modified by the 
School Board prior to the 1975-1976 school year.

12. On January 14, 1975, this Court entered an Order 
which recited that:

The latest of [the annual enrollment] reports was filed
with the Court December 10, 1974. It indicates that
because of changes therein there is a need for, and the

3Bryan, Carver, College Hill, Cuesta, Dunbar, Jackson 
Heights, Lomax, Meacham, Orange Grove, Potter, Shore and 
Williams.

4A satellite zone is an area which is not contiguous with the 
main attendance zone for a school. May 11, 1971 Order, p. 29, n.41. 
Thus, the references throughout the record to a satellite denotes a 
group of students within a given geographic area in a school 
boundary zone who are transported or assigned to a school outside 
the boundary zone primarily for desegregation purposes.



194a

Board is directed to file with the Court on or before 
March 21,1975, a supplemental plan designed to insure 
that the requirements of the Court's previous orders 
insofar as they relate to Lee Elementary School will be 
complied with as of the beginning of the 1975-76 school 
year.

13. The Court also directed the defendants' attention to 
Cleveland, DeSoto, and Gary Elementary Schools "in the event
changes for other schools are required__ " Edison Elementary,
which was 41% black at that time, was not mentioned.

14. On March 21, 1975, the School Board submitted to 
this Court a supplemental plan. This plan proposed to convert 
Lee to a 6th-grade center replacing the Meacham facility and to 
reassign the former attendance area of the Lee School under the 
1971 plan among seven different elementary schools for grades 
1-5. The plan also projected racial enrollments for Cleveland, 
DeSoto, and Gary Elementary.

15. This Court, by Order of June 3, 1975, directed 
implementation of the supplemental plan for Lee Elementary 
School commencing with the 1975-76 school year.

16. The 1975 annual report filed by the defendants 
reflected no maj ority black schools. Five out o f 128 schools had 
black student enrollments of 40% or more—Cleveland, Edison, 
Gary, Graham, and Palm River Elementary. (DX 7) Neither the 
Court nor the plaintiffs took any action as a result of those racial 
enrollments.

17. The following year, Cleveland experienced an 
increase to 55% black enrollment. (DX 7)

18. At least since January 14, 1975, the Court has not 
directed the School Board to prepare a supplemental plan or to



195a

take any action with respect to the racial composition of any of 
its schools, including but not limited to schools whose 
enrollments were more than 50% black.

19. Subsequent annual reports filed by the defendants 
reflected increased black enrollment at several schools. These 
reports were served upon the plaintiffs each year. No motion 
seeking relief or enforcement of any obligation imposed by the 
Court was ever filed by the plaintiffs until June 1994.

20. The 1993 annual report for the 151 schools operated 
by defendants indicated that there were nine elementary schools 
and one junior high school with black student enrollments of 
50% or more;5 there were five elementary schools and two 
junior high schools with black student enrollments of 40% or 
more.6

21. Each year following initial implementation of the 
1971 plan, the School Board filed at least two reports with the 
Court, copies of which were served upon counsel for the 
plaintiffs. The first report (usually submitted in the fall) 
provided enrollments (by race and grade) and faculty 
assignments (by race) at each school facility operated for grades 
1-12 in the system. The second report enumerated changes in 
student assignment (if any) proposed to become effective in the 
following school year.

5The elementary schools were Cleveland (59%), Edison 
(74%), Foster (57%), Graham (63%), Meacham (50%), Oak Park 
(66%), Robles (90%), Sulphur Springs (70%), and Witter (56%). The 
junior high school was Van Buren (50%).

6The elementary schools were Cahoon (47%), Clair Mel 
(48%), DeSoto (40%), Shaw (48%), and West Tampa (41%). The 
junior high schools were Dowdell (46%) and Sligh (43%).



196a

22. The reports of proposed student assignment 
modifications included, but were not limited to, boundary 
changes in response to overcrowding and student assignment 
modifications necessitated by the construction of new schools. 
The reports included projections of anticipated enrollments, by 
race, at schools affected by the proposed changes.

23. At least since January 14, 1975, this Court has not 
directed the School Board to prepare a supplemental plan or to 
take any action with respect to the racial composition o f any of 
its schools, including but not limited to those schools in which 
the percentage of black students attending those schools 
exceeded 50%.

24. For more than 22 years after the 1971 desegregation 
plan was implemented, plaintiffs filed no written objections 
with this Court concerning the actual or projected enrollments 
of any schools in Hillsborough County, including-schools 
whose enrollments were more than 50% black. In June 1994 
plaintiffs filed their first written objections to projected racial 
enrollments for the 1994-95 school year.

25. Plaintiffs did object in 1980 (for reasons other than 
anticipated racial composition of enrollments) to the closing of 
George Washington Junior High School and Glover Elementary 
School, proposed actions which were approved by this Court 
after a hearing on plaintiffs' objections.

26. Plaintiffs also objected in 1990 (for reasons other 
than anticipated racial composition of enrollments) to the 
proposed conversion of the Blake 7th-grade center to a magnet 
high school, a proposal which this Court disapproved (without 
prejudice to its subsequent resubmission as part o f a 
comprehensive restructuring plan) by Order of January 23, 
1991.



197a

27. In November 1989, Dr. Walter L. Sickles, then 
Superintendent, appointed a "Task Force to Modify Single 
Grade Centers" to investigate and make recommendations for 
reorganizing the Hillsborough County school system to 
establish middle schools consistent with the goal of retaining a 
desegregated school system.

28. Beginning in early 1991 a series of meetings was 
held between the Superintendent and other School Board 
representatives and plaintiffs' counsel and desegregation expert, 
Dr. Leonard Stevens. The purpose was to discuss the proposed 
middle school plan.

29. In early 1991, then-Assistant Superintendent James 
D. Randall had an initial meeting with counsel for plaintiffs. A 
more extensive meeting took place on March 15,1991, attended 
by counsel for the parties, Superintendent Sickles, Mr. Randall 
and other staff members of the school district, as well as by 
plaintiffs' educational and desegregation consultant, Dr. 
Stevens.

30. On March 15, 1991 plaintiffs' representatives were 
furnished a copy of the "Proposed Cluster Plan," which 
described working concept of middle school reorganization then 
being considered by the Task Force.

31. Further meetings were held between May and July 
1991 regarding the plan. Following the July 16, 1991 meeting, 
a formal report entitled "Middle School Task Force Report 3, 
July 1991," was submitted to and approved by the School Board 
and subsequently transmitted to plaintiffs' counsel on August 
20, 1991.

32. The Middle School Task Force Report 3 was 
attached to and made a part of the Consent Decree executed by



198a

counsel for the parties, which was approved and entered by this 
Court on October 24, 1991 as a Consent Order.

33. The "cluster plan" is currently beginning its sixth 
and final year of implementation. Of the 17 clusters, eleven 
have been implemented so far. There are six remaining clusters 
to be implemented at the beginning of the 1997-1998 school 
year.7

34. Prior to the Court's 1995 Order of Referral, the 
School Board had not requested a finding of partial or full 
unitary status by the Court and/or the vacating, in whole or in 
part, of the previous orders of the Court.

35. The Court has therefore not had occasion to make, 
nor has it made, a determination whether all vestiges o f the 
prior racially discriminatory dual school system in Hillsborough 
County have been eliminated to the extent practicable.

STUDENT ASSIGNMENTS 

Background

36. The Hillsborough County school system, one o f the 
largest school districts in the country, enrolled approximately

7 A more detailed description of the middle school plan and 
discussions between the parties concerning the proposed plan is 
contained in the Prior R and R at 29-31.



199a

120,000 students in the 1995-1996 school year.8 DX 7 at 28.9

37. As of October 30, 1995, there were a total of 148 
public schools operated by the School Board: 108 elementary 
schools, 27 junior high (or middle) schools, and 15 senior high 
schools. 5th Annual Report, April 15, 1996 at 54-82.

38. There is no dispute that all of the schools in 
Hillsborough County were desegregated as of the 1971 - 1972 
school year.

39. Plaintiffs acknowledge that most of the schools 
currently operated by defendants reflect the relative percentages 
o f black and white residents in Hillsborough County. (Dkt. 796 
at 12)

40. The controversy centers on what factors have caused 
some of the schools—particularly the elementary schools—to 
have an increasing number of black students enrolled over the 
years.

8Although the Court now has the benefit of the 6th Annual 
Report filed on April 15, 1997 providing data for the 1996-1997 
school year, this data was not available for the most part at the 
October 1996 unitary status hearing. The 6th Annual Report is 
addressed in the parties'-supplemental submissions. (Dkts. 80, 805)

99Reference to the parties' exhibits at the unitary status 
hearing are indicated by the letters "PX" or "DX" followed by the 
exhibit number. References to the seven-volume transcript are 
indicated by the letter "T" followed by the volume number and page 
number, e.g., T7 at 107.



200a

41. None of the Court's prior orders have expressly or 
implicitly"10 11 directed defendants to maintain a particular 
student race ratio at any school, or to take any action in 
response to increased black enrollments in the schools.

42. In determining the degree of racial imbalance in 
individual schools, both Dr. Stevens, plaintiffs' desegregation 
expert, as well as Dr. Armor, defendants' desegregation expert, 
applied a working definition of plus or minus 20 basis points 
over the district-wide race ratios, using the 80/20 ratio outlined 
in the May 1971 Order as a benchmark. (DX 1 at 7; PX 1 at 5)11

43. Plaintiffs' 1994 motion to enforce focused on sixteen 
schools, mostly elementary, with a black student enrollment of 
40% or more. Those schools and the percentage o f black 
students attending those schools as of the 1995-96 school year12 
are Robles Elementary (90%), Edison Elementary (75%), 
Sulphur Springs Elementary (74%), Oak Park Elementary 
(70%), Graham Elementary (67%), Foster Elementary (610), 
Cleveland Elementary (57%), Shaw Elementary (56%), Witter 
Elementary (54%), Cahoon Elementary (52%), Clair Mel 
Elementary (49%), West Tampa Elementary (47%), DeSoto 
Elementary (43%), Van Buren Junior High (53%), Sligh Junior 
(50%), and Dowdell Junior High (49%).13

I0See Prior R and R at pages 15, 34-38.

11 "This Court's 1995 referral order declined to adopt a 
specific figure in determining racial identifiability and instead stated 
that the determination is dependent on local conditions.

12Data from the 1995-96 school year was utilized at the 
evidentiary hearing conducted in October, 1996.

I3The student population statistics for all of these schools are 
taken from data set forth in DX 7, which consists of the annual



201a

44. Each of the sixteen schools named by the plaintiffs 
was predominantly white in 1971 following implementation of 
the desegregation order. (T1 at 33)14

45. In the intervening twenty-five years since the 1972- 
1973 school year, the percentage of black students attending 
these schools has increased to 40% or more.

46. The percentage of black students in each school as 
of the 1972-73 school year was as follows: Robles Elementary 
(24%), Edison Elementary (36%), Sulphur Springs Elementary 
(19%), Oak Park Elementary (23%), Graham Elementary 
(35%), Foster Elementary (21%),

student assignment reports filed by the School Board. The 
information about boundary and other attendance changes filed by 
the School Board. The information about demographic changes is 
taken from the report of Dr. William A.V. Clark, the defendants' 
demographics expert, which report was introduced as DX 2.

The data for the boundary and other attendance changes, 
including their effect on the racial composition of student 
populations, along with the data on demographic changes, for the 
sixteen schools about which the plaintiffs complained in 1994 (with 
the exceptions of DeSoto Elementary7 and Sligh Junior High) are 
summarized in Appendix A submitted by the defendants with their 
proposed findings of fact and conclusions of law. This same data 
(with the exception of demographic data) is summarized for all other 
schools (including DeSoto and Sligh) in Appendix B submitted by 
the defendants. An exhibit introduced at the hearing, the defendants 
summarized the boundary and other attendance changes made to the 
sixteen schools about which the plaintiffs complained in 1994 and 
the projected and actual effects of those changes on student race 
ratios within the schools. (DX 2; Tl-21)

14The 1972-73 school year is the earliest year after the 1971 
Order for which complete figures are available.



202a

47. These sixteen schools were also the primary focus of 
the testimony at the unitary status hearing.

Boundary Changes In General15

48. Since the 1977-1978 school year, the School Board 
has made more than 300 modifications in student assignments 
to relieve overcrowding, to accommodate the opening of newly 
constructed facilities, or for other reasons. With a few 
exceptions, none o f these boundary changes were made solely 
for the purpose o f affecting the racial ratio of a school.16

49. In addition, the School Board has accommodated 
enrollment increases, overcrowding, kindergarten classes, and 
special program needs by locating or relocating portable 
classrooms on individual school campuses. Between the school 
years from 1985-1986 through 1993-1994, the number of 
portable classrooms used in the Hillsborough County school 
system increased from approximately 800 to approximately 
1200.

50. When making assignment changes to relieve 
overcrowding or to accommodate new construction, the School 
Board has taken into account the racial enrollments within the

l5Most of the findings in this section have been stipulated to 
by the parties. (Dkt. 767 at 18-20).

16As the record demonstrates, on some occasions the School 
Board changed student assignments at certain of the schools which 
now have black student enrollments of 40% or more in order to 
improve racial balances. (See DX 3)(Dkt. 796, App. A) However, 
these changes were infrequent and were usually made inconjunction 
with some other factor such as relieving overcrowding or when a new 
school was opened.



203a

new boundary and the effect of the boundary changes on the 
enrollment ratios at the affected schools.

51. In addition, in making assignment changes to deal 
with problems of overcrowding or with new school 
construction, the district where practicable reassigned or 
divided and partially reassigned existing satellite zones (those 
originally created in 1971) in a manner that moved enrollments 
toward the system-wide ratio.

52. In particular, when the School Board constructed a 
new facility in a suburban area having a small resident black 
student population within the contiguous zone created 
surrounding the facility, it would utilize the reassignment of 
pre-existing satellite zones to increase the number of black 
students assigned to the new facility.

53. In modifying student assignments to relieve 
overcrowding or in connection with the opening of a new 
facility, the School Board has since the 1975-1976 school year 
created non-contiguous zones or satellites in at least seven 
instances.17 In most, but not all of these instances, students 
reassigned on a non-contiguous basis were being transported to 
their former school of assignment before the change.

17These seven instances, and the schools involved, are:

1977-78 Cahoon and Temple Terrace
1980-81 Mort and Cahoon

Bellamy and Dickenson
1983- 84 Dickenson and Bay Crest
1984- 85 Dickenson and Town & Country
1986-87 Greco Jr. High and Bums Jr. High
1992-93 Mort/Tampa Palms and Hunter's Green



204a

54. The School Board has never created a new non­
contiguous or satellite zone solely for the purpose of altering the 
racial enrollment ratio at a school, including schools that had 
majority black enrollments. 18

55. Since 1986, the School Board has not initiated 
boundary changes (not otherwise being considered for reasons 
such as overcrowding or the opening of a newly constructed 
school facility) for the purpose of altering the racial enrollment 
ratio at a school, including at schools that had majority-black 
enrollments.

56. In summary, the School Board's goal since 1971 has 
been to maintain a desegregated school system. This goal 
included having the ratios at individual schools come as close 
to the district-wide ratios as possible. For those schools which 
experienced increases in the numbers o f black students 
attending the schools, the School Boards would remove a 
satellite assigned to those schools if it was no longer necessary 
to maintain racial balance. However, the School Board did not 
create new satellites for schools with increasing black 
enrollment as a way to reduce the racial imbalances because of 
the disruption that would, have on the families and children 
attending those schools. (T7 at 219-21)

Student Enrollments and Demographics

I8This stipulation is understood to refer to satellite attendance 
zones created subsequent to the desegregation of the Hillsborough 
public schools which was achieved during the school year 1971- 
1972. Those created for that year wee at the express direction of the 
Court when the formerly black schools were closed and the students 
attending those schools were reassigned to other schools.



205a

57. Each of the sixteen schools named by the plaintiffs 
was predominantly white in 1971 following implementation of 
the July 1971 order. (T1 at 33)

58. The parties have examined demographic data for 
Hillsborough County to determine whether changes in 
residential housing patterns may explain why there is a higher 
percentage of black students at certain schools than existed in 
the past.

59. The most recent demographic data available for this 
inquiry is derived from the Decennial United States Census 
conducted in 1990. Since the Census is conducted only every 10 
years and no special census has been taken in the interim, the 
1990 Census figures provide the most up-to-date data available.

60. From 1970 to 1980 the total population of 
Hillsborough County, Florida, rapidly increased from 490,265 
persons in 1970 to 626,960 persons in 1980. The total 
population in 1990 increased substantially again to 834,054. 
(DX 2 table 1) The percentage increase of the total county 
population was approximately 30 percent during 1970-1980; the 
percentage increase during 1980-1990 "inner city" 
neighborhoods, this area experienced a loss of about 21,000 
white persons and a gain of about 4,000 black persons between 
1970 and 1990. (DX 2 at Table 4; T2 at 23)

65. Census data shows that the number of tracts in 
Hillsborough County with black populations of 95 percent or 
more decreased substantially from seven in 1970 to two in 
1990. At the same time, the number of tracts with populations 
o f 25% to 50% black residents more than doubled from 1970 to 
1990. (T4 at 61; PX 2 at 18) Tracts with populations of 50% or 
more black residents have expanded about 40 percent over the 
twenty-year period. (T2 at 34)



206a

66. During the period 1971 to the fall of 1995, the 
percentage of black high school students increased from 14% to 
21%. During the same period the percentage of black junior 
high students increased from 20% to 23%. At the elementary 
level, the increase was from 21% to 24% black students. (PX 1 
at 4-5)

67. Census information for the tracts having public 
schools with black student enrollments of 40% or more (thirteen 
elementary schools and three junior high schools) generally 
shows these schools as located within areas where the number 
o f black residents is increasing relative to the number of white 
residents of those tracts. (T2 at 56)19

68. While noting that in 1970 it "was possible to 
maintain a large number of schools with black enrollments of 
less than 40 percent," Dr. Clark concluded that the increased 
proportion of black residents "in the neighborhoods north o f the 
Hillsborough River and east of 22nd Street after 1980 and the 
continuing overall white student losses from inner city areas 
made it impracticable or impossible to make further attendance 
zone adjustments in order to maintain racial balance within the 
plus or minus 20 percent band." (DX 2 at 9 )

69. The evidence indicates, among other things, that for 
the school year 1990-1991 the disparity between census 
information and enrollment was not substantial at most o f the 
schools identified at the hearing which have black student 
enrollments of 40% or more. Shown below is the percentage of 
black enrollment at a school, followed by the 1990 census

19Appendices 1,2 and 3 to this Report and Recommendation 
incorporate demographic sixteen schools with black student 
enrollment of 40% or more. (DX 2, Tables 1, 4 and 5)



207a

information of black residents age 0 to 17 living in the 
attendance zone (shown in bold): Robles Elementary (86%, 
71%), Edison Elementary (69%, 70.5%), Sulphur Springs 
Elementary .(62%, 51.6%), Oak Park Elementary (61%, 
56.8%), Graham Elementary (68%, 42.9%), Foster Elementary' 
(46%, 52.4%), Cleveland Elementary (52%, 41.4%), Shaw 
Elementary (38%, 33.8%), Witter Elementary (45%, 41.1%), 
Cahoon Elementary (38%, 33.5%), Clair Mel Elementary 
(41%, 55.1%), West Tampa Elementary (44%, 31.6%), Van 
Buren Junior High, (42%, 39.6%), and Dowdell Junior High 
(42%, 39.6%). (Dkt. 796, App. A)20

70. Dr. David Armor, a well recognized expert in school 
desegregation cases,21 studied the sixteen schools with a black 
student population of 40% or more against the background of 
post1972 boundary changes effected for those schools and the 
census data gathered by Dr. Clark. (T3 at 33-48; DX 1) He 
noted that only a "handful" of schools (15 out of a total o f 135 
schools) have been or are currently out of balance. (T3 at 54)

71. None of the current or past racial imbalances in 
county schools are attributable to school board action, including 
boundary changes, but rather are attributable to demographic 
changes, according to Dr. Armor. (T3 at 53)

20DeSoto Elementary and Sligh Junior High School were not 
included in Dr. Clark's demographic study of 1990 census 
information. (DX 2) Black student enrollment for the 1990-1991 
school year was 50% at DeSoto Elementary and 35% at Sligh Junior 
High. (Dkt. 796, App. A and B)

21Dr. Armor has always testified in favor of school boards at 
unitary status hearings. (T3 at 118)



208a

72. Dr. Armor concluded that defendants have 
implemented "a highly effective desegregation plan that 
virtually desegregated the entire district to a very high degree of 
desegregation, as high as I've seen anywhere in this country but 
especially in the south, and that it maintained that plan for a 
very long time." (T3 at 49)

73. Dr. Fred Shelley, plaintiffs' demographics expert, did 
not conduct any demographic studies o f his own, but relied on 
Dr. Clark's data in drawing some differing conclusions. (T4 at 
50-56) Dr. Shelley agreed that both the inner-city areas 
identified by Dr. Clark and the neighborhoods surrounding 
those areas had experienced an increase in the percentage of 
black residents over the past twenty years. (T4 at 81 -83) But he 
did not think that demographics could totally explain the 
dramatic increases in black student enrollment at some schools. 
(T4 at 51-56; 56-58)

74. Dr. Shelley concluded that "it is perhaps difficult to 
conclude that increase in racial imbalance is attributable solely 
to the processes o f natural demographic change." (T4 at 56, 66) 
While agreeing that the most recent demographic data available 
is from the 1990 census, Dr. Shelley had reservations about 
drawing conclusions about present student enrollments based on 
that data. (T4 at 106)

75. Despite differing with the conclusions drawn by Dr. 
Armor, Dr. Shelley was unable to provide an alternate 
hypothesis for the increased black enrollment at the sixteen 
schools targeted by plaintiffs and studied by Dr. Armor. (T4 at



209a

95) Dr. Shelley conceded that only ten boundary changes had 
occurred after the schools became imbalanced. In some of the 
schools22

76. Also, Dr. Shelley apparently erroneously assumed 
that Dr. Clark's demographic data included children attending 
a school as part of a satellite attendance zone. (T4 at 91) The 
presence o f a satellite could cause that school to have a racial 
balance which might seem disproportionate to the racial balance 
in the school attendance area. (T4 at 91-92) He also agreed that 
in a highly segregated area it is more difficult to adjust 
boundaries or make other changes without substantial 
disruption including transportation. (T4 at 78)

77. Evidence presented at the hearing by the School 
Board included the percentage of black students at the schools 
before each attendance change and the percentage of black 
students at the schools after the change. However, it is 
undisputed that whenever the School Board proposed an 
attendance change, it estimated the projected attendance figures, 
including the percentage of black and white students for these

“ Defendants' Appendix A and B (Dkt. 796) summarize 
evidence as to boundary changes and the race ratios before and after 
the boundary changes for each school in Hillsborough County during 
the period of court supervision. Many of the sixteen schools 
identified by plaintiffs as racially unbalanced have not had many 
boundary changes in recent years. For example, Cahoon has had no 
boundary changes since 1989 when its black student enrollment was 
34%. Edison's last boundary change was 1982 when it was 500 black. 
Fosters last boundary change was in 1984 when it was 29% black. 
Oak Park has had no changes since 1978 when it was 41% black. 
Robles last had a boundary change in 1976 when it was 30% black. 
Shaw and Sulphur Springs have not had boundaiy changes since 
1989 when they were 37% black and 59% black, respectively. (App. 
A)



210a

schools. (DX 3, 7; T1 at 23) In most instances when an 
attendance change was made, the School Board expected the 
change to improve the race ratio at the affected school and, 
those times when the change did not improve the ratio, the 
School Board expected the ratio to change by only a few 
percentage points. (DX 3, DX 7) Occasionally, the projection 
did not hold because the demographics of the affected area 
changed unpredictably. (Tl-23)

78. If demographic factors explain the racial imbalances 
at those schools, it is unnecessary to reach the issue of what 
further desegregative techniques could be employed as this 
Court has never required defendants to adjust racial enrollments 
at Hillsborough County schools on an annual basis.

79. Notwithstanding the evidence pointing to 
demographic change as the most likely explanation for the 
increased black enrollment at thirteen elementary schools and 
three junior or middle schools, certain factual issues raised by 
plaintiffs should be addressed.

80. Dr. Shelley examined five of what he called the 
"long unbalanced" schools-Cleveland, Edison, Graham, 
Robles, and Oak Park-and noted that the attendance areas for 
these schools do not adjoin each other. He testified that it was 
at least "plausible to be able to make some slight adjustments in 
the boundaries of these attendance areas and reassign some 
students such that the degree of racial imbalance is lessened in 
those schools." (T4 at 64)

81. It must be remembered that the disparity in racial 
enrollments was also present, albeit to a lesser degree, when 
plaintiffs and the School Board approved the clusters as part of 
the middle school plan adopted by this Court in the 1991 
Consent Order. (Prior Report and Recommendation at 29, 32 
and n.22) Since the. implementation of the clusters, actual black



211a

enrollment has exceeded projected enrollment for some 
schools.23

82. Testimony received at the 1994 hearing on plaintiffs' 
motion to enforce court order demonstrated that at least as to 
West Tampa Elementary, reassignment of students according to 
suggestions made by plaintiffs' desegregation expert, Dr. 
Stevens, was not practicable.24

83. Plaintiffs have presented proposed findings 
addressing some of the sixteen schools which currently have 
40% or more black student enrollments in terms of their 
location in clusters with other schools which have a much lower 
percentage of black student enrollments. (Dkt. 796 at 18-19)

Edison Elementary

84. Edison Elementary School (75% black )25 is in a 
cluster with Morgan Woods (10% black), Town & Country 
(27% black) and Woodbridge (21% black). (PX 7 at 2)

85. However, these elementary schools are not in the 
area immediately adjoining the Edison attendance zone. Rather, 
the schools which immediately adjoin the Edison attendance

23 A chart prepared by Dr. Stevens compares the race ratios 
projected by the 1991 middle school plan and actual race ratios in 
1995 for the schools having black student enrollments of 40% or 
more. (PX 1, Ex. le)

24See Prior R& Rat 38-40.

25The racial enrollments listed in plaintiffs' exhibit are based 
on the 1995-96 school year.



212a

zone are Foster (64% black), Broward (35% black), and 
Seminole (40% black). (DX 8 at 4)26

Cleveland Elementary

86. Cleveland Elementary School (52% black) is in a 
cluster with Carrollwood (15% black), Forest Hills (27% black) 
and Lake Magdalene (12% black). (PX 7 at 2) Forest Hills does 
adjoin the Cleveland attendance zone at the northwest comer 
but its boundaries include a portion o f Florida Avenue and 
Busch Boulevard, major city streets. The other schools do not. 
The other schools surrounding Cleveland are Seminole (40% 
black), Sulphur Springs (80% black), and Foster (64% black).

Sulphur Springs Elementary

87. Sulphur Springs (74% black) is in a cluster with 
Twin Lakes (17% black). (PX 7 at 2; DX 7 at 18, 20)27 
However, Twin Lakes does not adjoin the Sulphur Springs 
attendance zone. The elementary schools which do adjoin the 
Sulphur Springs attendance zone axe: Shaw (59% black), 
Cahoon (55% black), Foster (64% black and Cleveland (53% 
black).

Graham Elementary and Foster Elementary

26The racial enrollments shown on defendants' exhibit are 
from the first month attendance figures for the 1996-97 school year 
and so they differ somewhat from the percentages shown in PX 7 as 
well as other exhibits which may be in evidence, including the 6th 
Annual Report which is the most current data in the record for the 
1996-1997 school year.

27Students who attend Sulphur Springs and Cleveland also 
attend Adams Middle School. (PX at 7)



213a

88. Plaintiffs also point out that Graham (67% black) 
and Foster (61% black) are in a cluster with Broward (34% 
black), Egypt Lake (22% black), Mendenhall (30% black), and 
Seminole (37% black). (PX 7 at 3: DX 7 at 3, 7-9, 13, 17)

89. With the exception of Seminole, which is to the 
southwest of the Foster attendance zone (divided by 12th 
Street), none of the other schools which adjoin Foster are under 
40% black. Instead, Foster is bordered by Sulphur Springs (80% 
black), Cahoon (55% black), and Edison (78% black). (DX 8 at 
5) Also, the dividing line between the attendance zones for 
Graham and Broward is Indiana Street. Graham is also divided 
from Tampa Bay Boulevard Elementary (27% black) by the 
Hillsborough River. (DX 8 at 6)

Robles Elementary

90. Robles (90% black) is in a cluster with Folsom (29% 
black). (PX 7 at 3; DX 7 at 8). While the Folsom attendance 
area adjoins Robles to the east, the two zones are separated by 
a CSX railroad track. Also, the other attendance areas 
surrounding Robles are Riverhills (45% black) and Cahoon 
(55% black). (DX 8 at 9)28

Cahoon Elementary

91. Cahoon (52 % black) is in a cluster with Hunter's 
Green Elementary School (19% black). (PX 7 at 3; DX 7 at 9) 
Hunter's Green is not an adjoining school zone, however.

28 In 1975 or 1976 the School Board considered converting 
Robles to a sixth-grade center as a way to reduce the increased black 
enrollment at the school. However, after talking to the parents in the 
Robles neighborhood, the School Board dropped that idea because 
the parents who lived in that area were opposed to it. (T7 at 220)



214a

Instead, Cahoon is adjacent to Witter (55% black), Temple 
Terrace (34% black), Riverhills (45% black), Robles (88% 
black), Foster (64% black), Sulphur Springs (80% black) and 
Shaw (59% black). (DX 8 at 1)

Shaw Elementary and Witter Elementary

92. Shaw (56% black) and Witter (54% black) are in a 
cluster with. Tampa Palms Elementary School and two other 
elementary schools to be built after the 1995-1996 school year. 
(PX 7 at 3) Tampa Palms Elementary School is 14%black. (DX 
7 at 19) Although a satellite attendance zone for Hunter's Green 
adjoins both the Shaw and Witter attendance zones (DX 8 at 9, 
12), there is no indication that the Hunter's Green attendance 
zone adjoins either Shaw or Witter and that would be unlikely 
since, by definition, a satellite attendance zone is a non­
contiguous attendance zone.

Oak Park Elementary

93. Plaintiffs' proposed findings do not address Oak 
Park. Its attendance zone is adjoined by the attendance zones 
for Palm River, DeSoto, and Kenly, all of which had a black 
enrollment of 3 5% or more for the first month of the 1996-1997 
school year. (DX 8 at 8)

94. Dr. Stevens testified at the unitary status hearing that 
he had "not drawn any plan for any particular school" for 
reducing the percentage of black students at the schools which 
have a black student enrollment of 40% or more. (T4 at 206)29

29 Dr. Stevens is also an expert in school desegregation cases. 
He has never testified on behalf of a school system, however, or in 
favor of a declaration of unitary status as to student assignment. (T4 
at 154)



215a

Magnet Schools and Programs

95. Magnet programs are one of the most effective 
desegregation techniques employed by school boards today.

96. When the Court approved the Consent Order in 
1991, a key objective of the Middle School Plan was to locate 
magnet programs in the inner city schools where the greatest 
number of black students reside. Today, all ten elementary 
school programs are located in neighborhoods which consist 
primarily of black residents. (T1 at 177)

97. As suggested by its name, the magnet program or 
school offers a special curriculum which is designed to attract 
students based on their special interests. Students who attend 
magnet programs are provided transportation if needed. (Ti at 
173-74) For the 1996-1997 school year, defendants offered 
twelve magnet programs. Three additional magnet programs 
will be offered for the 1997-1998 school year. (Tl at 143)

98. Mary Ellen Elia, director of the School Board's 
magnet school program, estimated that by the time the program 
is fully implemented, almost 90,000 students will be 
participating in magnet programs in Hillsborough County. (Tl 
at 170) All of the magnet programs and schools opened so far 
have been successful. (Tl at 154)

99. The School Board actively markets its magnet 
programs, including advertising in the media. The staff 
responsible for the magnet programs also meet with community 
groups across the county. (Tl at 144-50)

100. As there are more applicants than openings in the 
programs, lists of students are made by computer random draw. 
Students are then selected based on gender, ethnicity, and grade



216a

level. Gender and ethnicity are used as selection criteria to 
achieve a balanced population. (DX at 10) Also, applicants 
living closes to the school are given priority in at least some 
situations.30 (T1 at 162)

101. In order to obtain federal funding for the magnet 
school program, the School Board had to establish that it would 
foster desegregation and attract substantial numbers of students 
of different racial backgrounds.31 Under the School Board's 
plan, students who are members o f a minority group can 
comprise up to 40% of the students participating in the magnet 
programs or attending magnet schools. (T1 at 166) That 
percentage was chosen because it represents the total percentage 
of students within the school system who belong to a m inority 
group. (Dkt. 808, Affidavit of Mary Ellen Elia) ("Elia 
affidavit")

102. The magnet school plan also specifies the 
percentage of particular minority groups within the 40% cap 
who may be admitted under the plan: 23% Black; 14% 
Hispanic; 2% Asian Pacific Islanders; and .02% American 
Indians. (T1 at 166)

103. The percentage figure o f 23% for black student 
enrollment was part of the Middle School Task Force Plan. 
Plaintiffs and defendants agreed to this figure as part of their 
negotiations. However, the Plan also provides that if  students 
from other minority groups do not apply for the magnet * 3

30 Hillsborough County has both magnet programs and 
magnet schools. It is not clear from the testimony whether students 
applying for magnet programs also receive first priority if the live 
closest to the schools. (T1 at 161-64) 30

3‘See 34 C.F.R. § 280.1 et. seq. (1996).



217a

programs, black students may be accepted into the programs as 
long as total black enrollment does not exceed 40%. (Elia 
affidavit at 3-4)

Special Transfer Requests 
Including majority to Minority Transfers

104. The Court's July 1971 Order set out specific criteria 
the School Board was to follow in handling requests to transfer 
students from one school to another. (July 1971 Order, at 11, 
Ex. 2) The Court has not altered the School Board's obligations 
since that time.

105. The only grounds authorized for transfers axe: (1) 
maj ority to minority transfers; (2) transfers recommended by the 
juvenile court; (3) transfers for exceptional children; 
(4)transfers for children of School Board teachers and staff to 
their parents' place of employment; (5) transfers to attend 
Tampa Bay Vocational-Technical High School; and (6) 
transfers in cases o f severe hardship after determination of each 
case by the School Board.

106. Transfers under (3),(5), and (6) can be approved by 
the School Board only after considering recommendations from 
the BiRacial Committee. They are to be considered without 
regard to race except transfers are not to be approved if made 
for the purpose of avoiding desegregation. Transfers under (1) 
and (4) are to be reported to the Bi-Racial Committee.

107. Majority to minority ("M to M") transfers allow a 
student to transfer from a school in which his race is in the 
majority to attend the closest school to his residence in which 
his race is in the minority. Transportation is to be provided if 
the school to which a student is transferred is more than two 
miles from the student's home.



218a

108. It appears that no M to M transfers have ever been 
sought from the School Board. (T1 at 90-91) Although parents 
were generally familiar with the special transfer requests, they 
did not seem familiar with M to M requests. Dr. Miliziano, the 
Superintendent's Administrative Assistant, testified that not 
until recently did the School Board start evaluating special 
assignment requests made on other grounds to determine 
whether the children seeking the transfer would be eligible for 
an M to M transfer. The transfer request forms now have a 
request for the race of the student to be listed. The transfer 
requests sought on other grounds are granted if the request 
would qualify as an M to M request. (T1 at 90-92)

109. The M to M transfer program is now publicized as 
a result o f a recommendation by School Board staff in July 
1995. (PX 14) Since the policy has been publicized there have 
been no specific M to M transfer requests. (T1 at 106)

110. Dr. Stevens, plaintiffs' desegregation expert, would 
like to see the School Board do more marketing of the M to M 
transfer program but agreed that use of the M to M transfers 
would not make a big difference in alleviating racial 
imbalances. (T4 at 195) 111

111. Dr. Stevens studied other types of special transfers 
and concluded that defendants' granting other transfer requests 
had increased the racial imbalances at seven of the imbalanced 
elementary schools for the year 1995. His study indicated that 
the percentage of black students enrolled in those schools 
(Cahoon, Cleveland, Foster, Graham, Robles, West Tampa, and 
Witter) experienced increases ranging from five to seven 
percent as a result of special assignments allowing students to 
attend those schools who are not really assigned to them (T 4 
at 129-30) (PX 1 at 13)



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112. This issue was addressed at the prior hearing on 
plaintiffs' motion to enforce court order. In effect, Dr. Stevens 
believes the Court should reconsider its prior directive to the 
School Board to grant transfers for extreme hardship "without 
regard to race" if the effect of that policy would be to contribute 
to racial imbalance. (PX 1 at 12-13) For the reasons stated 
previously, for this Court to order defendants to deny black 
parents severe hardship transfers for their children because the 
transfers would adversely impact race ratios is neither practical 
nor wise. (Prior R and R at 24-26)

113. No evidence was presented that the School Board 
has failed to follow the Court's directives as to special 
assignments.

FACULTY AND STAFF ASSIGNMENTS

114. For the 1993-1994 school year, 14% of the teachers 
in Hillsborough County were black. For the same year, blacks 
constituted 17% of the principals, 22.2%  of the assistant 
principals, and 7.9%  of the district administrators (at the main 
school board office), of the noninstructional permanent 
personnel, 16.1% were black. Black teacher aides comprise 
25.3%  of the total teacher aides employed by the county.32 (T2 
at 132-135)

115. According to Marilyn Whittner, Director of Human 
Resources, the School Board has "a dearth of m inority 
applicants for our teaching positions and we are constantly 
seeking minority teachers." (T2 at 105) The School Board

32Defendants used district-wide employee data from the 
1993-1994 school year at the unitary status hearing. (T2 at 134)



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focuses recruitment efforts at colleges with a substantial 
percentage of black graduates.

116. Additionally, a mentoring program has been 
instituted for black teachers who aspire to be administrators. 
More than one-half of the graduates of that program have been 
placed in administrative or teacher resource positions. (T2 at 
108-09; PX 14)

117. For instructional and non-instructional personnel, 
the principal at an individual school interviews prospective 
applicants and is authorized to make offers contingent on 
approval by School Board and staff. Principals are given criteria 
for open positions. If Human Resources determines that a new 
hire would adversely affect the racial ratio at a particular school 
it will disapprove the offer unless no qualified candidates are 
available. (T2 at 112-16)

118. Instructional personnel employed by the School 
Board are represented by a union which negotiates salaries 
based on the level of service and academic degree held by the 
employee. These salary levels are applied across-the-board to all 
teachers. (T2 at 11415)

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

120. The parties' experts differ on whether some schools 
are racially identifiable due to their faculty and staff 
compositions. Using a 15% deviation standard, Dr. Stevens 
identified twelve elementary schools which are not in 
compliance with the districtwide ratio. However, Dr. Armor, 
defendants' expert, did not find any schools which fit into this 
category. This is because Dr. Armor used only faculty data; Dr.



221a

Stevens used data from the annual reports which aggregate 
faculty and staff and include non-certified personnel. (T4 at 
139) However, the 14% figure cited by defendants referred only 
to black faculty, not staff. (T2 at 130, 132)

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

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

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

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



222a

125. Ann Porter, head of the Tampa branch of the 
NAACP, testified about concerns about black males being 
denied employment opportunities and other complaints she 
receives.33 Ms. Porter, who is African American, meets with 
the Superintendent and staff on the average of once or twice a 
month. This working relationship has become stronger with the 
current Superintendent, Dr. Earl Lennard. Although she is 
opposed to a declaration of unitary status at this time, Ms. 
Porter admitted that many complaints are resolved through 
these informal meetings. (T6 at 139-41)

TRANSPORTATION

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

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

128. As required by Florida law, any student attending 
a school two or more miles from his residence must be 
furnished transportation by the school district. (DX 21) The

33Ms. Porter was not asked about a venture between 
theUniversity of South Florida and the School Board launched 
inAugust 1995 to place black male teachers with the School Board 
after graduation. (DX 14, "Project PILOT" documents)



223a

School Board has always complied with this requirement. (T1 
at 122-25)

129. The School Board provides transportation for all 
students who qualify and no distinctions are drawn as to race. 
(T1 at 13133)

130. The desegregation technique adopted in the 1971 
Order involved closing the formerly all-black schools and 
assigning them to "satellite" attendance zones. (T4 at 135-36)

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

132. Of this number, more black students than white 
students were transported at each of the three school levels: 
elementary, middle, and high school. (PX 1 at 20)34

133. At no time after the 1971 Order was entered did 
plaintiffs raise any objection about the number of students 
bused, including when the desegregation plan was modified in 
the 1991 Consent Order due to implementation of the middle 
school plan.

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

j4Ofthe elementary students transported 23% were black and 
10% were white. At the middle school level 26% were black and 
18% were white. Of the high school students, 24% were black and 
8% were white. (PX 1 at 20)



224a

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

136. In 1989 the School Board examined whether 
providing only one activity bus per satellite area met the needs 
of the students. The superintendent and his staff determined 
that more than one activity bus per school might be needed on 
certain days due to the number of activities and events 
scheduled at the schools. (DX 23) 137. This policy was 
implemented and remains in effect today. The School Board 
supervisor of transportation surveys schools on a weekly or 
daily basis to determine the number of buses needed. (T 131-36; 
138-41)

EXTRACURRICULAR ACTIVITIES

138. Under this Court's desegregation plan the School 
Board has been ordered to regularly, re-examine its extra 
curricular activities to insure that they are maintained and 
operated on a non-segregated and non-discriminatory basis. 
(July 1971 Order at 10)

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



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140. Since that time, a committee composed of the 
athletic director and assistant school principals has regularly 
reviewed proposed changes in the athletic programs pursuant to 
policies adopted by the School Board. The School Board offers 
a number of athletic programs, ten for females and ten for 
males. (T1 at 11315)

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

142. Of total student participation in athletics, 
approximately 23% of the athletes were black and 
approximately 77% were white for the school year 1996-97. 
Participation varied from school to school and sport to sport. 
For example, total participation in basketball for black students 
was 54% (males) and 49% (females). On the other hand, 
participation by blacks on high school swim teams was very 
low. Only three black students (one female, and two males) 
participated on high school swim teams. Over 18% of the 
cheerleaders were black. (DX 28; T1 at 115-19)

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

144. Defendants do not maintain data on a school by 
school basis for extracurricular activities but do track overall 
participation by race. In 1995, black students accounted for 11 % 
of the honor society memberships, 12% of drama clubs, 27% of



226a

student councils, 20% of marching bands, 14% of orchestras, 
and 19% of choral groups. (PX 1 at 27)

145. These activities are open to all students and no 
students are denied the opportunity to participate because of 
their race.35

FACILITIES AND RESOURCE ALLOCATION 

Site Selection and School Openings and Closings

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

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

148. the percentage of black students attending these

35Mae King, mother of an Armwood High School student, 
testified that she observed cheerleading try-outs at Armwood recently 
because she was concerned that there were not enough black 
cheerleaders. As a result of the try-outs, however, three blacks were 
chosen for the varsity squad and three were chosen for the junior 
squad. (T4 at 17-27) Ms. King also recounted an incident where a 
suggestion was made at a PTA meeting to have a black disc jockey 
at a school dance and some of the people at the meeting got upset and 
walked out. (T4 at 20-21; 27-28)



227a

schools the first year was brought closer to the 80/20 ratio. (DX 
4)36 By 1995, five additional schools were built. (PX 2 at 8) 
None of the new schools has been opened with an allwhite 
population or a black population of close to 40 percent. (T1 at 
26)

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

150. A total of nine schools have been closed since the 
19711972 school year. (DX 5) When those schools were closed 
the School Board took into account the race ratios at the closed 
school and the schools to which the pupils were reassigned. (T1 
at 30-31) In most cases, the closing of the schools brought the 
schools the students were reassigned to closer to the 80/20 ratio. 
(DX 5)

151. Plaintiffs have been notified of all school 
construction through the reports filed with the Court as to 
boundary changes. Plaintiffs have never objected to the location 
of new schools. Although most of the new schools have been 
opened in the suburbs, Blake High School, which is a magnet 
high school opens in the 199798 school year near downtown

36The School Board's exhibit does not address schools 
opened after the 1993 school year.



228a

Tampa. Defendants have also opened several magnet schools in 
predominantly black, inner-city areas: Lee, Phillip Shore, and 
Dunbar Elementary Schools as well as Young and Middleton 
Middle Schools. (T1 at 155; 174-177)

Overcrowding

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

153. Plaintiffs introduced evidence that the schools 
having a black student enrollment of 40% or more are more 
likely to be overcrowded in terms of their Florida Inventory of 
School Houses (FISH) capacity. Plaintiffs' demographics expert, 
Dr. Shelley, testified that schools with a 40% or more black 
enrollment are more likely to have enrollments significantly 
over their FISH capacities than schools which are racially 
balanced. (T4 at 37; PX 2 at 1113, 22-23)

154. Dr. Shelley's data also shows that in 1995, a total 
of 102 public schools in Hillsborough County were more than 
25% over their FISH capacity: 88 were racially balanced 
schools and 14 were unbalanced^7 schools. Only 8 of the 88 
balanced schools were more than 50% over their FISH capacity 
but 4 of the 14 unbalanced schools fell into this category. (PX 
2 at 23)

155. However, the FISH capacity of a school does not 
include portable classrooms. Use of portables does not 37

37Dr. Shelley used the same measure of racial imbalance used 
by Dr. Armor and Dr. Stevens.



229a

necessarily mean that a school is overcrowded. (T4 at 101-03)38

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

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

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

38Defendants have provided a 46-page list entitled 
"Relocatable Classroom Inventory" which listing all portable 
classrooms placed in use between 1949 and 1995 and their locations. 
(DX 29)



230a

158. Although no testimony was provided interpreting 
the Percentage of Capacity Report in terms of individual 
schools, it appears that of the 105 elementary schools surveyed, 
the ten elementary schools with the highest number of points 
include Edison, Witter, DeSoto, Shaw and Cleveland, all of 
which have black student enrollments of 400 or more. (DX 32, 
Elementary Schools, at 1)

Teacher Resources

159. For the 1992-93 and 1994-95 school year, schools 
with a black student enrollment of 40% or more had a lower 
teacher-student ratio than the other schools with fewer than 
40% black students. (DX 1, charts 33 and 36)

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

Expenditures

161. In 1995, the School Board had a budget o f $1.2 
billion. (T7 at 150)

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



231a

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

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

165. There is no difference in the per capita 
expenditures of the School Board on instructional salaries for 
teachers districtwide regardless of the racial composition of the 
schools. (DX 1, charts 37, 40) As stated in the preceding 
discussion of faculty and staff, instructional salaries are set by 
the collective bargaining agreement between the teacher's 
association and the School Board. The federal government also 
prescribes comparability standards for employees paid by 
federal funds. (T1 at 199)

166. Funding for instructional resources is allocated by 
the School Board on a pupil by pupil basis without regard to 
race, ethnicity, gender, or other limits such as the FISH capacity 
for the school. When a group of schools is converted to the 
middle school plan, those schools receive additional resources 
due to the conversion. (T7 at 191-93)

167. A comparison of expenditures for instructional 
supplies and equipment for fiscal years 1993 and 1995 showed 
that elementary and junior high schools which were more than 
40% black received slightly less funding than schools which 
were less than 40% black. (DX 1, charts 38 and 41)



232a

168. The School Board attributes this difference to 
"conversion funds distributed to schools which were newly- 
constructed or reconfigured pursuant to the Middle School plan" 
and notes that "[m]ost of the over 40% schools [are] not 
scheduled for conversion until the 1996-1997 and 1997-1998 
school years." (Dkt. 797 at 83) The record supports this 
argument. (T1 at 97)

169. In addition, a study of total capital expenditures for 
fiscal years 1993 and 1995 indicates that there was essentially 
no difference between schools which were over or under 40% 
black. During the latter year, elementary schools which were 
over 40% black received more funding. (DX 1, charts 39 and 
42)

170. A review of capital expenditures during the period 
1991 to 1995 by Dr. Armor revealed that expenditures for inner 
city elementary schools (which comprise most if  not all of the 
more than 40% black schools) were slightly higher than those 
o f the other elementary schools.39 Spending for the inner city 
junior high schools was substantially higher than other junior 
high schools. (DX 1, chart 43)

QUALITY OF EDUCATION

39Darrell Daniels, one of the witnesses called by plaintiffs, is 
employed with the Urban League and operates youth development 
programs at Robles and 31 other schools. One of his children attends 
Robles. While commending the principal of Robles, Mr. Daniels, 
who is African American, criticized the lack of commitment to 
education which he saw in the other personnel at the school. He also 
felt that Robles did not have the equipment such as computers which 
other schools have. However, he agreed that a school's commitment 
to education can vary regardless of the racial make-up of the school. 
(T6 at 58-77)



233a

171. Several witnesses called by plaintiffs, including 
plaintiff Andrew Manning and School Board Chair Doris 
Reddick, testified poignantly about the differences between 
black and white schools in the era of de jure segregation. Mr. 
Manning and Ms. Reddick attended public schools in 
Hillsborough County. Ms. Joanna Tokley taught in the public 
schools, both before and after the Court's 1971 desegregation 
order. All three are African American. (T3 at 163-68; T5 at 20- 
23; T6 at 103-110)

172. Orders entered in this case have not required the 
School Board, in dismantling the dual school system, to attain 
specified levels of student achievement or any other standard to 
evaluate quality of education. However, this Court's referral 
order directed that the quality of education, along with the other 
Green factors be evaluated as well as the School Board's good- 
faith commitment in determining whether the public schools of 
Hillsborough County have attained unitary status.

173. Evidence presented by the parties concerning the 
quality of education today focused on academic achievement, 
enrollment in gifted programs, and suspension and dropout 
rates. Other factors bearing on quality of education such as 
facilities and resources as well as magnet programs have been 
addressed in the preceding sections.

Achievement Tests

174. Since 1977 the School Board has examined the 
results of achievement tests by students of different races on a 
regular basis. (T2 at 147)

175. Dr. John Hilderbrand, who has supervised testing 
for the Hillsborough County school system since about 1977, 
testified that there are an increasing number of state-mandated



234a

tests for students that are administered and evaluated by the 
School Board. (T2 at 138-40)

176. On the Stanford Achievement Test, Hillsborough 
County students scored slightly below the 50th percentile in 
reading and slightly above the 50th percentile in math and 
language which is the average rank for a national population. 
(T2 at 139-140) A standardized writing exam given to students 
in the fourth, eighth and tenth grades demonstrates that 
Hillsborough County students score higher than any of the other 
large school districts in the state. (T 2 at 140) Similar results are 
obtained on the High School Competency Test (HSCT). (T2 at 
141) Scores for black students on the writing exam and HSCT 
show that Hillsborough County students outperform state 
averages for those tests. (T2 at 141)

177. A voluntary test taken by about 47% of seniors in 
high school—the Scholastic Assessment Test-has consistently 
produced results that place Hillsborough County students above 
national and state averages. When the scores are analyzed by 
race, the same result is shown. Black students in Hillsborough 
County outperform state and national norms. (T2 at 141)

178. In attempting to evaluate how,well the school 
system is educating all of its students, Dr. Armor examined 
standardized tests (the Stanford Achievement Test) given to 
fifth grade students in Hillsborough County' in the spring of 
1994 and the spring of 1995. Overall, black students scored 16 
to 17 points lower than white students in reading and math. (T3 
at 88-89; DX 1, chart 44) This represents approximately three- 
fourths of a standard deviation. (DX 1 at 21)

179. A nationwide study conducted in 1992 found that 
similar differences exist between blacks and whites at all grade 
levels in math and reading; the achievement gap ranges from



235a

two-thirds to four-fifths of a standard deviation depending on 
the grade and test level, (DX 1 at 21)

180. However, when performing a regression analysis 
which used socioeconomic factors relating to family income, 
single or two parent families, and the educational background 
of the parents, the gap in scores between black and white 
students narrows considerably. (T3 at 90-101; DX 1, chart 45) 
Dr. Armor concluded that about 600 of the gap in the reading 
scores for black and white students and about 66% of the math 
scores can be explained by socioeconomic factors. (DX 1, chart 
46)

181. Additionally, when the first grade test scores for the 
same group o f students are added as an additional variable, 
almost 75% o f the reading gap and 90% of the math gap is 
explained by these variables.40 (DX 1 at 22-23, chart 47)

182. An analysis of Stanford Achievement Tests taken 
by eighth grade students revealed similar results. About 71 -72% 
of the gap in reading scores and about 84-860 of the gap in math 
scores between black and white students in Hillsborough 
County for the same years was attributable to a combination of 
socioeconomic factors and first grade test scores. (DX 1 at 23, 
charts 48 and 49; T4 at 98-100)

183. Dr. Robert Crain, a witness called by plaintiffs, 
criticized some of the assumptions and methodology employed 
by Dr. Armor in arriving at his conclusions. (T6 at 157-207)

40First grade test scores are used as a predictor of student 
achievement or skills before entering school. (T3 at 96) However, 
the tests are given in the spring of the school year rather than the fall 
and therefore are the product of the first grade curriculum to an 
extent. (T6 at 253; 283; T7 at 186-87)



236a

184. Dr. Crain disagreed with Dr. Armor's use of first 
grade test scores as predictors of student achievement entering 
first grade because the tests are given in the spring rather than 
in the fall. (T6 at 162-63) He did agree that a student's entry- 
level skills are important predictors of how well a student will 
perform on the fourth and eighth grade tests. (T6 at 253-53)

185. Dr. Crain also disagreed with Dr. Armor's use of 
neighborhood data to determine the variables of family income 
and educational level of parents because that data reflected 
averages rather than actual figures for a neighborhood and 
therefore would presumably include both black and-white 
families. (T6 at 168-73; 236) However, Dr. Crain uses 
neighborhood income in the studies he conducts. (T6 at 236) 
Dr. Crain also questioned whether family income and 
educational background could be remnants of the prior 
segregated school system. (T6 at 174-76)

186. Overall, Dr. Crain thought that Dr. Armor had 
overestimated the effects of socioeconomic factors on 
achievement test scores. (T6 at 192) Although he disagreed with 
some variables used by Dr. Armor, Dr. Crain did agree that the 
socioeconomic factors of free lunch and the number of parents 
at home were relevant and important variables. (T6 at 266) 
Using these factors, he obtained a line o f regression similar to 
Dr. Armor's study. Dr. Crain did not determine the statistical 
significance of the differences between his study and Dr. 
Armor's (T6 at 270)41

41 Dr. Crain disagreed with Dr. Armor's use of a "two-tailed" 
statistical model and felt that he should have used a "single-tailed" 
analysis. (T6 at 274) His preference for the single-tailed analysis was 
that "no one ...would expect blacks to score better in higher black 
schools." (T6 at 274) The reasons cited by Dr. Armor for use of the 
two-tailed analysis are morepersuasive and refute Dr. Crain's



237a

187. Dr. Crain's study showed that fifth-grade black 
students attending the schools with over 40 percent black 
enrollment performed less well in than their counterparts at the 
schools with under 40 percent black enrollment. (T6 at 206-07) 
However, these differences occurred only with reading. There 
were no differences in math. (T6 at 281-82)

188. However, when Dr. Crain used the same variables 
as Dr. Armor he reached substantially the same results. (T6 at 
265-66)

Academic Outcome

189. To evaluate how well the school system is doing in 
educating high school students, Dr. Armor examined grade 
averages and college plans as no standardized tests are taken by 
twelfth graders. White students have a 2.9 grade average; black 
students have a 2.3 grade average. Fifty-six percent of the high 
school seniors who were white planned to attend college as 
compared to forty-five percent of black students. (DX 1 at 24- 
25, chart 54)

190. When adjustment is made for socioeconomic 
factors and tenth grade achievement tests, Dr. Armor concluded 
that the grade average gap for black and white seniors would be 
only about .15 grade point. (DX 1 at 25, chart 55) After 
adjusting for socioeconomic factors, the difference between 
black seniors and white seniors in terms o f college plans is 
practically negligible. (DX 1 at 25, chart 55)

Gifted Programs

assumption that black students in schools with a higher black 
enrollment will always score lower than those students in schools 
with a lower black enrollment. (T7 at 161-69)



238a

191. As of October 1996, approximately 75% of the 
students enrolled in Hillsborough County gifted programs were 
white and approximately 9% were black. The remaining 16% 
were from other minority groups: 11 % Hispanic, 4% Asian, and 
Indian and multi cultural, less than 1% each. (T2 at 151-52) 
While the number of black students in the gifted program is 
disproportionate to the number of black students enrolled in 
public schools, students must both apply to the gifted program 
and meet minimum criteria including attainment of a minimum 
score on a standardized test.

192. Until 1991, admission into gifted programs was set 
by state standards requiring an IQ test o f 130 or higher. That 
year, the state adopted a plan to increase the number of minority 
gifted students and invited school districts to submit alternate 
criteria for admission. Hillsborough County elected to 
participate and submitted criteria under this program (referred 
to as "Plan B") which included an IQ score of 115 or higher 
together with demonstrated academic achievement and other 
characteristics typical principals are expected to follow-up with 
each student on an individual basis to give specific suggestions 
on how to stay in school or participate in alternate programs 
such as the GED program or adult education which meets the 
needs of the student. (T7 at 207)

198. The dropout rates for Hillsborough County, public 
schools are the lowest in the state for similar large urban school 
districts. In the past five years dropout rates have averaged 
about 3/4%. (T7 at 208-09)

199. Dr. Armor examined data for the high school 
graduating class of 1995 beginning when those graduates were 
in the eighth grade. The difference in dropout rates for blacks 
(15%) and whites (9%) is not significant. When adjusted for 
socioeconomic factors, that difference is negligible. (DX 1 at 
24, charts 52, 53)



239a

Suspension Policies and Rates

200. The School Board also tracks suspensions and 
expulsions by .sex, race, and age. The suspension rates for 
Hillsborough county are lower than state-wide averages in some 
areas and for some groups. (T7 at 234) The School District has 
out-of-school suspension programs as well as seven alternative 
school sites. Individual schools can elect to run an in-school 
suspension program; that decision is left up to the 
administration at each school. (T7 at 234-36)

201. Dr. Armor did not examine suspension rates but 
Dr. Stevens did. After examining four years of data (1990- 
1994), Dr. Stevens concluded that black students are suspended 
from school at disproportionately high rates. He found that in 
1994-95 the suspension rate for black students was two to four 
times higher than the rate for white students depending upon 
grade level and the type of suspension. This data did not lead 
Dr. Stevens to infer racial discrimination, however. His 
criticism was that the School Board had not examined this data 
more closely on a school-by-school basis "to verily that 
disparities are not race-related." (PX 1 at 29-30)

GOOD-FAITH COMPLIANCE WITH COURT 
ORDERS

202. The parties disagree as to defendants' history of 
good faith compliance with court orders and what factors are 
relevant to this determination.

203. Defendants point out that for more than 25 years, 
defendants have complied with this Court's Orders to 
desegregate the public schools of Hillsborough County and to 
eradicate the previous illegal dual school system previously 
maintained. The record establishes that not. once during that



240a

period of time have defendants been found in violation of any 
Court orders.42

204. During this period of time, the parties have 
regularly conferred, through their respective attorneys and 
desegregation experts, to ensure that the school system was 
moving forwards, not backwards, toward compliance with the 
Court's orders. (Prior R and R at 29 and n. 21)

205. At some point in the mid-1970's there were 
apparently several ex carte discussions between School Board 
staff and the District Judge formerly assigned to this case 
concerning whether the School Board needed to adjust 
boundaries at certain schools when racial enrollments changed. 
Plaintiffs learned of these conversations during a 1995 hearing 
on plaintiffs' motion to enforce court order when the School 
Board sought to admit testimony from John Heuer, former 
Assistant Superintendent, concerning these conversations. The 
undersigned ruled this testimony inadmissible on the basis of 
plaintiffs' objections .43

206. However, during the unitary status hearing, 
plaintiffs sought to introduce this testimony on the issue of 
defendants' good-faith compliance. Dr. Heuer testified that on 
a couple of occasions between 1972 and 1974 he received 
guidance from the Court, or the Court's law clerk, concerning

42There is, of course, the plaintiffs' motion to enforce court 
order filed in 1994 which remains pending before the Court 
following entry of the June 1995 Report and Recommendation 
recommending that the motion be denied. However, the Court noted 
in its subsequent referral order that the motion and recommendation 
“would be rendered moot upon a finding of unitary status.” (Dkt. 
709 at 3)

43See Prior R and R at 22 n



241a

what to do about schools where the boundaries had not changed 
but the racial composition of the school had changed. He was 
told that "if [the school board] had not created the problem, [the 
school board] did not have to go back necessarily and correct 
it." (T7 at 17) Notwithstanding this advice, defendants did their 
best to try to improve the race ratios when possible, taking into 
consideration the distance factor for transportation and the 
burden it placed on the students. (T7 at 18-22)

207. Although the testimony on this point is not entirely 
clear, it appears that these discussions consisted of (1) one or 
two face-to-face meetings with the Court, Mr. Heuer, possibly 
Raymond Shelton, then Superintendent,44 and Crosby Few, 
counsel for defendants, and (2) a couple of telephone 
conversations between Mr. Heuer and the Court's law clerk. 
These discussions were initiated by the Court or the law clerk, 
not defendants. (T7 at 11-16, 50)

208. Both the former and the current Superintendent of 
Schools testified at the unitary status hearing. Dr. Walter 
Sickles served as Superintendent from 1989 to July 1996 when 
he was replaced by Dr. Earl Lennard. Dr. Sickles had been 
employed by the School Board in various capacities beginning 
in 1969. Although he believed that the school system had 
become unitary in the early 1990's he did not suggest moving in 
that direction at that time because he felt that the obtaining 
court approval for the middle school plan should have priority. 
Dr. Sickles also believed that a move to end court supervision 
at that time would be opposed by plaintiffs and instead aimed 
at working with plaintiffs towards adoption of the middle 
school plan in the 1991 Consent Order. (T7 at 99-124)

44Mr. Shelton is now deceased.



242a

209. Dr. Lennard, appointed Superintendent in July 
1996, has been employed by the School Board since 
approximately 1964. He previously served as Deputy 
Superintendent and A ssistant Superintendent for 
Administration. He testified that he strongly feels a "moral and 
legal obligation on the school system to continue a desegregated 
school system." (T7 at 238-39) However, he has not developed 
any specific plans regarding what transportation policies he 
would recommend if unitary status were found other than 
continuing the activity buses. (T7 at 239-40)

210. Doris Reddick, the only black School Board 
member, was elected Chair by her colleagues. All seven of the 
School Board members run from districts but are elected 
county-wide. Ms. Reddick testified that the School Board had 
never taken a formal vote or held public hearings on whether to 
seek unitary status. When the Court's Referral Order was 
entered, School Board members discussed the issue with 
counsel in terms of the unitary status issues. Ms. Reddick 
testified that she did not think that the School Board should be 
released from supervision now or at "any other time that I see 
in the future." She explained that "I am not sure we have 
actually crossed over the wall, and I mean the wall of equal 
distribution of everything that the unitary system calls for." (T5 
at 27-30) However, when asked whether the School Board had 
developed any contingency plan to operate if unitary status is 
granted, Ms. Reddick indicated that any plan would maintain a 
system in which "all children will receive equal education." (T5 
at 26)

211. The other School Board members who testified at 
the hearing, Carolyn Bricklemyer, Candy Olson, Yvonne 
McKitrick, Glenn Barrington, and Carol Kurdell, expressed no 
misgivings about whether Hillsborough County schools are 
unitary or the intent and ability of the School Board to continue



243a

a desegregated school system while receiving input from all 
members of the community'. (T5 at 10-12, 16, 32, 39-40)

212. Mr. Manning, the lead plaintiff in the case, agreed 
with Ms. Reddick that the School Board had not yet completely 
eliminated the vestiges of segregation. He was concerned about 
the schools with increased black enrollments45 as well as the 
fact that black students were bused more often than white 
students. Mr. Manning did not think that there should not be 
any schools in the county with black student enrollments of 
80% or more. He stated that there was a feeling of distrust and 
unhappiness with the School Board in the black community, 
and referred to reading two years ago about "secret meetings 
that were held between the School Board and the judges," an 
apparent reference to Mr. Heuer's testimony discussed above. 
However, Mr. Manning stated that he was consulted about the 
middle school plan proposed to the court and that he agreed 
with it as it was fully endorsed by counsel, the Legal Defense 
Fund. (T 6at 113-33)

213. Joanna Tokley, a 22-year member of the Urban 
League who is currently President and CEO, testified on behalf 
of plaintiffs that she did not feel that the School Board was 
ready to be released from court supervision. (T3 at 187-89) She 
expressed concern that the inner-city schools might be passed 
over in terms of renovation projects and that low enrollments 
might cause the loss of instructional or library staff. Ms. Tokley 
thought that there were still some employees who were 
insensitive and made improper comments to children who 
qualified for free lunches. She recounted a incident involving

45Mr. Manning agreed that some parents of black students do 
not want their children transported out of schools which are majority 
black but he felt that those parents were concerned more with 
convenience rather than the quality of education. (T6 at 126)



244a

her godson who played basketball against East Bay High School 
in 1995.4 46 (T3 at 180-89)

214. Ms. Tokley served on the Biracial Advisory 
Committee for ten years beginning in 1974 but resigned because 
she disagreed with its limited role. She felt that sometimes 
boundary changes were "rubber stamped" by the Committee and 
the School Board despite the fact that she and a minority of the 
Committee members voiced disagreement with those 
recommendations at the School Board hearings. (T3 at 182-84)

215. Ms. Tokley continues to be involved with the 
school system, however. She served on the Education 
Committee of the Chamber of Commerce and the Goals 2000 
committee. She presently serves on the School Board's 
Overcrowded Schools Task Force. Additionally, she directs 
Urban League programs in about 32 Hillsborough County 
schools which provide self-esteem and behavioral modification 
programs for students of all races as well as tutoring and other 
programs. (T3 at 170-77)

CONCLUSIONS OF LAW

Plaintiffs submit that the Court must resolve four legal 
issues: (1) outstanding legal issues regarding defendants' prior 
compliance with existing orders; (2) whether a finding of 
unitary status is appropriate, absent modification of the 1991 
Consent order; (3) whether defendants have demonstrated that 
no remaining vestiges of the prior de jure segregated school 
system exist; and (4) whether defendants have demonstrated

4SMs. Tokley also testified about other incidents involving
family members in the mid to late 1970’s which she felt indicated 
disparate treatment. (T3 at 178-81)



245a

good-faith compliance with both the 1971 Orders and the 1991 
Consent Order.

Defendants submit that all these issues are subsumed 
within the unitary status inquiry. However, these issues will be 
evaluated as suggested by plaintiffs.

Plaintiffs' 1994 Motion To Enforce Court Order 
Should Be Denied As No Violations Have Been Shown

Plaintiffs have only once alleged that defendants 
violated this Court's orders, in 1994. Those allegations were 
fully addressed in the Prior Report and Recommendation dated 
June 23,1995 and the proposed findings and conclusions made 
therein are incorporated here by reference.

This is a threshold issue which remains pending before 
the Court and should be resolved prior to a determination of 
unitary status. Cf. Bradley v. Pinellas County. 961 F.2d 1554, 
1558 n.9 (11th Cir. 1992).47 Therefore it is recommended that 
the Court conclude that defendants have not violated either of 
the 1971 Orders or the 1991 Consent Order as alleged by 
plaintiffs in their prior motion to enforce court order. No 
subsequent developments, either factual or legal, justify 
reconsideration of those recommended findings and conclusions

A Finding of Unitary Status Is Not Barred 
By the 1991 Consent Order

470 f  course, the burden is on plaintiffs in their motion to 
enforce to demonstrate that defendants have violated the Court's 
orders. In a unitary status determination, the School Board has the 
burden of establishing it has eliminated the vestiges of the prior de 
jure segregated school system and has complied in good faith with 
the Court's orders.



246a

Plaintiffs contend that it is premature for the Court to 
makt a determination o f unitary status because the terms o f the 
1991 Consent Order have not been fully met.

The 1991 Consent order approved and incorporated the 
Report of the Middle School Task Force. (Consent Order at 2-5) 
The Task Force Report addressed a restructuring of 
Hillsborough County schools to establish middle schools 
serving grades 6-8 to be implemented over a seven-year period.

In agreeing to the terms of the Consent Order, counsel 
for the parties "represented to the Court that in their opinion, the 
modifications set forth in this Agreed Order meet applicable 
constitutional standards and will continue the progress of the 
Hillsborough County public schools toward a unitary system 
from which all vestiges o f past discrimination have been 
eliminated." (Consent Order at 2)

A district court unquestionably has the inherent power 
to grant a modification of a consent order in a desegregation 
case. Modification may be considered when (1) a significant 
change in facts or law warrants change and the proposed 
modification is suitably tailored to the change; (2) significant 
time has passed and the objectives o f the original agreement 
have not been met; (3)continuance is not longer warranted; 
and/or (4) continuance would be inequitable and each side has 
legitimate interests to be considered. See Jacksonville Branch 
NAACP v. Duval County Sch. 978 F.2d 1574, 1578 (11th Cir. 
1992) (citations omitted).

Attainment of unitary status is a material change in 
circumstance which could justify termination of court 
supervision over the School Board.



247a

There are No Remaining Vestiges 
of the De Jure Segregated System

In a school desegregation case, "the court's end purpose 
must be to remedy the violation and in addition to restore state 
and local authorities to the control of a school system that is 
operating in compliance with the Constitution." Freeman v. 
Pitts. 503 U.S. 467, 489 (1992) (citation omitted). A school 
system has fulfilled its constitutional duty when it has complied 
in good faith with the court's desegregation decree since it was 
entered and has "eliminated the vestiges of past discrimination 
to the extent practicable." Bd. of Educ. of Okla. City Pub. Sch. 
v. Dowell. 498 U.S. 237, 248 (1991) (citation omitted).

A dual school system is one which has engaged in 
intentional segregation of students by race; a unitary system is 
one which has been brought into compliance with the 
Constitution. See id. at 246 Thus, the court must examine all 
facets of a school district that was once a dual system, both 
when ordering a remedy and when the later question is whether 
the district courts' remedial control should be modified, 
lessened, or withdrawn. See Freeman. 503 U.S. at 486.

In 1968, the Supreme Court identified those factors 
relevant to the unitary status inquiry as: student assignment, 
faculty and staff, transportation, extracurricular activities, and 
facilities. See Green v. County Sch. Bd. of New Kent County, 
391 U.S. 430, 435 (1968). These Green factors must be 
considered in light of the school district's specific obligations 
under the Court's orders, in this case the 1971 Order and the 
1991 Consent Decree. ,Sgg Missouri v. Jenkins. 515 U.S. 70, 
100(1995).

In addition, the school district must demonstrate its 
"goodfaith commitment to the entirety of a desegregation plan 
so that parents, students and the public have assurance against



248a

further injuries or stigma." Freeman. 503 U.S. at 498. Further, 
the district court, in its discretion, may consider other facets of 
the school operations, such as the quality of education. Lockett 
v. Bd, of Educ. Of Muscogee County School. 111 F.3d 839,843 
n.l (11th Cir. 1997).

This Court has directed defendants in this case to 
address all of the Green factors, including the "quality of 
education being received by all students," as well as the "good 
faith commitment by the School Board." (Order of Referral at 
4)

STUDENT ASSIGNMENTS

Where a school board has a history of practicing 
segregation, a district court must presume that substantially 
disproportionate racial compositions within the schools are 
constitutionally violative. To overcome this presumption, a 
school board must prove that the imbalances are not the result 
of present or past discrimination. See Lockett. 111 F.3d at 843 
(citing Swann v. Charlotte-Mecklenburg Bd. Of Educ.. 402 U.S. 
1 (1974)).

However, the "constitutional command to desegregate 
schools does not mean that every school in every community 
must always reflect the racial composition of the school system 
as a whole." Swann, 402 U.S. at 24. Nor is a school board 
required to make adjustments in student attendance zones for 
racial imbalances caused by demographic factors. See Freeman. 
503 U.S. at 494. "The' Constitution does not prevent individuals 
from choosing to live together, to work together, or to send their 
children to school together, so long as the State does not 
interfere with their choices on the basis of race." Missouri v. 
Jenkins, 515 U.S. 70, 121 (1995) (Thomas, J., concurring).



249a

Although the Swarm Court did not further define what 
measure a court is to use in determining whether the racial 
composition of a school is "substantially disproportionate," the 
expert witnesses for both sides in this case have used the 
standard of a plus or minus twenty percent (200) deviation from 
the county-wide percentage of black and white school age 
children.

According to 1990 census data, twenty-three percent 
(23%) of Hillsborough residents between the ages of zero and 
seventeen are black; seventy-seven percent (77%) are white. As 
stated previously, the 1990 Census is the most recent data 
available. Both sides' experts have used schools with 40% or 
higher black student enrollment as the focus of any inquiry into 
substantially disproportionate race ratios although, in actuality, 
a 43% or higher figure would be more appropriate given the 
most recent census data.

There is no dispute that most Hillsborough County 
studentsattend public schools in which the percentage of black 
and white students is generally proportionate to the percentage 
of white and black school age residents of Hillsborough County. 
It is also evident that most of the county's schools have been 
racially balanced since 1971 when the Court ordered the School 
Board to dismantle the dual school system. The year following 
the 1971 Order, all of the public schools of Hillsborough 
County had been desegregated.

However, approximately ten percent of the 159 public 
schools, mostly elementary schools, reflect student enrollments 
in which the percentage of black students is substantially higher 
than the percentage of black children under age seventeen 
shown by the 1990 census data. All of these schools were 
racially balanced immediately following implementation of the 
Court's 1971 Order. A few of the schools crossed the 40% line 
in the five to ten years following the Court's 1971 Order. Most



250a

of the schools were balanced until about ten years ago and have 
become out of balance since then.48

This Court, in its referral order, declined to adopt a 
specific percentage figure of what constitutes a racially 
identifiable school and concluded that "the better procedure is 
toconsider that this determination is entirely dependent upon 
local conditions." (Order of Referral at 5) , If, by this, the Court 
meant the racial make-up of the neighborhoods surrounding the 
schools, then the Court may find that none of the sixteen 
schools in question are racially imbalanced, at least when 
comparing the race ratios for the 1990-91 school year and 
census figures for 1990 for the tracts surrounding those schools, 
as noted previously.49

The evidence strongly points to residential housing 
patterns as the explanation for the change in racial composition 
ofthese schools. This explanation is especially persuasive when 
the racial enrollments of the schools are compared to the 
changing racial make-up of the neighborhoods in which these 
schools are located. The expert testimony and evidence supports 
the conclusion that the schools with the largest black student 
populations are located within attendance areas that have had 
the greatest increases in the number of black school-age 
residents.

48Also, most of the schools that plaintiffs point to as evidence 
of the prior dual school system had black student enrollments that 
were over 40% or approaching 40% when plaintiffs and defendants 
sought court approval to implement the middle school concept by 
modifying the desegregation plan outlined in the 1991 Consent 
Order. (Prior R and R, at 27, 32-35, 40)

49See supra paragraph 68.



251a

The School Board has never, since the 1971 Order, 
drawn school boundaries or assigned students to separate 
schools on the basis of race. For those schools with current 
racial imbalances, changes in attendance areas have generally 
resulted in improving the racial balance, at least for the year 
immediately following the boundary change.50 Those few 
instances in which the boundary changes have not improved the 
racial balance cannot be viewed as any effort by the School 
Board to return to the prior dual school system.

The School Board's evidence on this issue was 
essentially unrebutted by plaintiffs. Dr. Shelley, the 
demographic expert called by plaintiffs, did not perform any 
independent demographic studies but relied on the data 
assembled by Dr. Clark, the School Board's demographic 
expert. Dr. Shelley's testimony does not undermine the finding 
that demographic changes in the surrounding areas are the most 
likely cause for the racial imbalances present at about ten 
percent of the schools.

It is true that plaintiffs are not required to show that 
School Board action caused the racial imbalances at some of the 
schools. The burden was and is on the School Board to establish 
that the imbalances are not proximately traceable to past or 
current discriminatory School Board policies or actions. 
However, the School Board has met its burden with the 
testimony of Dr. Clark and Dr. Armor which is supported by 
reasonable assumptions and census data.

Notwithstanding defendants' withdrawal of Dr. Clark's 
testimony addressing the effect of boundary changes (T2 at 57-64; 
74-80), Dr. Miliziano's testimony, as well as Dr. Armor's supports 
this conclusion. (T1 at 43-61; 100-103; T3 at 33-49;53)(DX 3) Dr. 
Shelley, plaintiffs' expert, found that about onehalf of the boundary 
changes improved the racial balances the following year. (DX 2 at 9)



252a

The School Board has met its burden of establishing that 
the current racial imbalance in these schools is not proximately 
caused by any unlawful School Board action, past or current, 
that assigns students to separate schools on the basis of race. 
See Freeman. 503 U.S. at 494.

The location of certain schools with below 40% black 
enrollment in the same cluster as the elementary schools with 
black enrollment of 40% or more is not evidence of any 
discriminatory motive or practice on the part of the School 
Board. Although plaintiffs have pointed in conclusory terms to 
the possibility of intra-cluster assignments to alleviate the racial 
imbalances o f some of these schools, in most cases the 
attendance zones for the other schools are not immediately 
adjacent. Where they are adjacent, there is a natural barrier such 
as a road or railroad track. Most of the sixteen schools in 
question are surrounded by schools with black enrollments of 
close to or over 40% of the total student population. Moreover, 
although plaintiffs have alleged that the school system is not 
unitary as to student assignment, they have not proposed 
specific solutions to remedy what is alleged to be an on-going 
constitutional violation.

A school board's affirmative duty to desegregate does 
not require adoption of the most desegregative alternative 
available. Practicalities such as transportation (and funding) 
may properly be considered by a court in determining the scope 
of desegregation plans even though more ambitious, plans 
might achieve greater desegregation. See generally Lee v. 
Anniston City Sch. Sys.. 737 F.2d 952, 957 (11th Cir. 1984).

Further,

[wjhere resegregation is a product not o f state action but 
of private choices, it does not have constitutional 
implications. It is beyond the authority and beyond the



253a

practical ability of the federal courts to try to counteract 
these kinds of continuous and massive demographic 
shifts. To attempt such results would require ongoing 
and never-ending supervision by the courts of school 
districts simply because they were once de jure 
segregated. Residential housing choices, and their 
attendant effects on the racial composition of schools, 
present an everchanging pattern, one difficult to address 
through judicial remedies.

Freeman. 503 U.S. at 495.

The Court must also consider the parties' prior 
representations in this case. One of the stated goals of the 
Middle School Plan approved by both plaintiffs and the School 
Board and adopted by this Court in 1991 was to retain a 
desegregated school system (emphasis added). Plaintiffs have 
stipulated to this fact. (Prior R and R at 2, nn.3 & 6) A major 
objective o f the cluster plan was to have neighborhood schools 
while maintaining a desegregated school system. (Prior R and 
R at 30) (citing Task Force Report) (T7 at 116)

In determining proposed attendance zones for the 
clusters, the School Board projected that the plan would 
improve the racial balance for some schools but cause racial 
imbalances to increase at others. Overall, however, the proposed 
attendance areas would increase the number of schools within 
the school system with student populations that were racially 
balanced. This plan was adopted by the School Board only after 
a series o f public hearings, meetings with community leaders 
and organizations, and the full participation and approval of 
plaintiffs' counsel and their desegregation expert, Dr. Stevens. 
(Prior R and R at 6-7, 29-33)



254a

Neither the 1971 Order nor the 1991 Consent Order 
required the School Board to periodically adjust the racial 
enrollment at particular schools on an annual or less frequent 
basis once the initial goal of desegregation of student attendance 
patterns was achieved. (Prior R and R at 15, 29-38)

Thus, although the School Board has not been obligated 
to maintain a particular racial balance at each school, it has 
utilized the ratios outlined in the 1971 Order as the "most 
acceptable and desirable form of desegregation" as a guide in 
formulating student attendance zones and in evaluating the 
impact of other School Board decisions on its mandate from 
this court.

The School Board has also adopted a magnet school 
program, a favored desegregative technique, and has devoted 
substantial resources to implementing and publicizing this 
program to students, their parents, and the community. It is true 
that some aspects of the magnet program remain to be 
implemented as this coming school year is the final year of 
implementation for the plan approved by the Court in the 1991 
Consent Order. However, the magnet programs and schools are 
located in the inner city areas and are expressly designed to be 
racially balanced. The percentage of black students who may 
participate in magnet programs is 23% but this percentage may 
increase to 40% if an insufficient number of other minority 
students apply for the programs. Plaintiffs' contention that 
defendants are continuing to discriminate because of the policy 
that caps black enrollment at 23% ignores the federal 
requirement that magnet schools reflect the ethnic backgrounds 
of all minority groups within the county.

The Court in its 1971 order continued the requirement 
imposed in prior orders as to Majority to Minority (M to M) 
transfers permitting any student whose race constitutes the 
majority of students at a school to voluntarily transfer to the



255a

school closest to his home in which his race is a minority of the 
students, with transportation provided if necessary. According 
to the School Board, no student has ever applied for a transfer 
under the M to M policy. Plaintiffs do not refute this evidence 
but contend that the School Board has not understood its 
obligations under this policy. To the extent that the School 
Board has not in the past publicized this policy, that was 
rectified more than a year ago.51 If transfers are sought for other 
reasons, the School Board staff now takes the affirmative step 
of reviewing the application to see if the student would be 
eligible for an M to M transfer.

Although the absence of M to M transfer applications is 
troubling, the Court's 1971 Order did not require the defendants 
to solicit M to M transfers; they were only required to grant 
them if requested. There has been no violation of the Court's 
Order as to the M to M transfer policy. Also, Dr. Stevens 
testified that M to M transfers would not be statistically 
significant in reducing the racial imbalances at the sixteen 
schools in question.

On the whole, the School Board has demonstrated that 
its schools are unitary as to student assignment policies and 
practices and that the increased black enrollments at about 10% 
of the schools which are substantially disproportionate to the 
districtwide racial ratios are due to increased number of black 
school-age children residing in those neighborhoods. See, e.g., 
Freeman. 503 U.S. at 494 (court's 1969 desegregation decree 
was designed to achieve maximum practicable desegregation 
and achieved its goal in the first year of operation "before 5

5’There is nothing in the record to indicate whether the 
School Board would continue the M to M transfer program if court 
supervision were lifted. The School Board may wish to address 
this issue in a supplemental filing with the Court.



256a

dramatic demographic changes altered residential patterns"; 
"[f]or the entire 17 year-period the respondents raised no 
substantial objection to the basic student assignment system, as 
the parties and District Court concentrated on other mechanisms 
to eliminate the de jure taint"); Morgan v. Nucci. 831 F.2d 313, 
320-21 (1st Cir. 1987) (finding of unitary status upheld despite 
existence of 13 schools in Boston school district with 
enrollments of one race comprising 80% or more of total 
enrollment at school); Stell v Bd. of Pub. Educ. for the City o f 
Savannah, 860 F. Supp. 1563, 1583 (school district unitary 
despite the fact that 11 of 44 schools were 20 percentage points 
or more outside district-wide race ratios).

F A C U L T Y  A N D S T A F F  A S SIG N M E N T

The testimony presented by the School Board indicates 
that the faculty and staff at Hillsborough County public schools 
have been and remain desegregated.52

Plaintiffs have not disputed defendants' statistics or the 
evidence of vigorous recruitment of minorities but contend that 
certain schools exceed the system-wide race ratios by a 
significant percentage. The conclusions of Dr. Stevens and Dr. 
Armor differ as to whether the any schools deviate more than 
15% from the district wide faculty average. Dr. Stevens 
identified twelve elementary schools that fit this category” Dr. 
Armor identified none. This difference is largely due to the fact 
that Dr. Stevens included non-certified staff within his 
calculations and Dr. Armor included only faculty. However, the 
School Board's 14% black faculty figure did not include staff. 
For this reason, Dr. Armor's conclusion is more reliable. Given 5

5“In July 1971 the Court noted that faculty desegregation had 
been accomplished "at every school location in the 1970 school 
year." (July 1971 order at 8)



257a

the absence of any schools which have a 15% deviation from 
the district-wide average, racial identifiability in faculty and 
staff assignments has not been demonstrated. See. eTa.. S e , 
860 F. Supp. at 1576; see also Flax v. Potts. 915 F.2d 155, 163 
(5th Cir. 1990) (unitary status achieved by school board despite 
six schools with faculty and staff 20 percentage points or more 
from system-wide ratio).

Admittedly, the School Board has not achieved the goals 
it has pursued of having the same ratio of black and white 
teachers as the student body. Black student enrollment in the 
district is about 23%. - However, there is no dispute that 
recruitment of minority teachers has been and remains an 
important goal for the School Board.

Additionally, the percentage of principals and assistant 
principals who are black exceeds the percentage of black 
teachers and the school Board has an active mentoring program 
designed to provide support for instructional staff seeking 
advancement. About one of every six principals is black; more 
than one out of every five assistant principals is black.

The School Board has established by a preponderance 
of evidence that it has eliminated racial discrimination in hiring 
and assigning of faculty and staff. The public schools of 
Hillsborough County are unitary as to this Green factor.

T R A N S P O R T A T IO N  AND 
E X T R A C U R R IC U L A R  A C T IV IT IE S

All public school students are entitled to transportation 
to and from school if  they live two miles or more from their 
school. Race has no bearing on a student's right to 
transportation.



258a

Although it is under no legal obligation to do so, the 
School Board also provides "activity buses" for students 
needing later transportation who participate in after-school 
activities.

There is no evidence of discrimination in providing 
transportation to students, including activities buses. 
Defendants have complied with this Court's orders regarding 
transportation of students.

It is true, as plaintiffs contend, that proportionately more 
black students are bused for desegregation than white students. 
By its very nature, the desegregation plan adopted by the court 
imposed a greater transportation burden on black students. 
While recognizing this fact, the Court found that its plan would 
result in busing fewer students, among other factors. (July 1971 
Order at 74) of discrimination due to race. Extracurricular 
activities are provided primarily at the high school level. The 
School Board places no racial restrictions on a student's ability 
to participate in extracurricular activities. The testimony of Ms. 
King demonstrates her concern as the mother of a black high 
school student about cheerleader selection at one high school. 
However, the try-outs she attended resulted in several black 
students being invited to join the cheerleading squad.

Plaintiffs' desegregation expert, Dr. Stevens, did not 
point to any instances of discrimination in the extracurricular 
programs offered by defendants. Instead, Dr. Stevens suggested 
that sufficient .data was not maintained to enable defendants to 
ensure that this aspect of the school system was free from 
discrimination, such as records from individual schools instead 
of district-wide data about extracurricular participation.53

53Apparently, the School Board tracks participation in 
athletic activities at individual schools by race but does not do this



259a

However, there is nothing in the Court's orders which required 
information of this sort to be maintained and speculation about 
what such records might reveal is insufficient ground to 
preclude a finding of unitary status.

The testimony shows that defendants have eliminated 
discrimination based on race in the areas of transportation and 
extracurricular activities and the court should so conclude. The 
Hillsborough County school system is unitary as to these two 
Green factors.

F A C IL IT IE S  AND R E SO U R C E  A L L O C A T IO N

Although most new schools have been built in the 
suburbs, this is consistent with the county's growth patterns. 
When assigning students to a new school, the School Board has 
taken into account the projected race ratios. No new schools 
have been built with projected black enrollment of greater than 
40%. Furthermore, when closing or converting schools, the 
School Board has taken into account the impact on race ratios 
and tried to improve the racial balance when reassigning 
students to other schools.

The School Board has also established that its allocation 
of funds and teacher resources is free from racial 
discrimination. Much of the budget comes from state and 
federal sources and the School Board is regularly audited to 
determine that it is in compliance with standards for use of 
those funds. Individual schools are funded on a per-pupil basis 
and the race of the student has no bearing on how funds are 
spent. Schools that are brought into the middle school cluster 
plan receive additional funds for that year. In recent years, total 
per capita expenditures have actually been higher at schools

with other extracurricular activities.



260a

with a 40% or higher black enrollment. These are among the 
schools that receive additional funds from the federal 
government (known as Title I funds) due to the number of 
students who come from families who meet poverty level 
guidelines.

To the extent that overcrowding is included in the 
calculus of resource allocation, it is evident that overcrowding 
is an unfortunate reality at most schools in Hillsborough 
County. The total population of Hillsborough County increased 
by almost twothirds between 1970 and 1990. The number of 
public schools grew from 129 in 1971 to 159 in 1995. The 
degree of overcrowding varies at individual schools across the 
county. Plaintiffs introduced evidence that proportionately more 
of the schools that are racially imbalanced are above their FISH 
capacity when compared to the racially balanced schools. The 
evidence submitted by defendants shows how capacity is 
extended with portables but the School Board's evidence also 
suggests that five of the ten most overcrowded elementary 
schools are among the schools with a higher percentage of black 
students enrolled. This evidence is disturbing, but it does not 
demonstrate discriminatory conduct or policy on the part o f the 
School Board. Evidence presented by defendants also indicated 
that the teacher-student ratios are lower at the schools having 
black student enrollments of 40% or more.

Defendants have demonstrated that the Hillsborough 
County school system is unitary as to the Green factors of 
facilities and resource allocation.

Q U A L IT Y  O F  E D U C A T IO N

Quality of education, while "admittedly an amorphous 
concept", is a fundamental concern in any desegregation case. 
Freeman v. Mills. 942 F. Supp. 1449, 1461 (N.D. Ga. 1996), 
affd, 118 F.3d 727 (11th Cir. 1997). "If there is one common



261a

thread in [Brown] and its progeny, it is the assumption by the 
federal judiciary of a role in which it can, by exercise of its 
equitable jurisdiction, compel a school districts which were 
once segregated by law to offer each of their children, 
irrespective of race, a quality of education which is substantially 
similar to that offered to all other children." Id. At the same 
time, "[e]nshrined in the Constitution is the promise of equal 
opportunity, not equal outcome."

As stated previously, none of this Court's prior orders 
have required defendants to implement specific programs 
addressing quality of education. The evidence presented 
indicates that the School Board has in the past regularly 
evaluated several areas of student performance in attempting to 
gauge its success in providing a quality education. It continues 
to do so at the present time, and there is every reason to expect 
that it will continue to monitor performance in the future and 
make adjustments in its programs where necessary.

The evidence on quality of education at the unitary 
status hearing focused on achievement tests, gifted programs, 
dropout and suspension rates and programs, and grade-point 
averages and college plans for graduating seniors, with 
reference to results achieved according to the race of the 
student.

Defendants regularly monitor dropout and suspension 
rates and have implemented programs to prevent dropouts 
which include providing extra counselors and teachers at the 
high school level. Although there is a disparity between dropout 
and suspension rates for whites and blacks, dropout rates for 
this school district are the lowest in the state for similar urban 
school districts (about three and one-half percent). Much of the 
gap in dropout rates can be explained by socioeconomic factors, 
according to Dr. Armor.



262a

Although not required by state law to do so, defendants 
increased minority participation in the gifted program by 
adopting "Plan B" as soon as the state permitted school districts 
to devise alternate admission criteria by lowering the minimum 
score applicants needed to attain on a standardized test. Dr. 
Stevens stated that this policy had increased black enrollment 
in the gifted program in recent years.

O f the high school seniors who planned to attend 
college, 56% were white and 45% were black. The average 
grades for black and white students varied by six-tenths of a 
point. Black students in Hillsborough County meet or exceed 
state and national norms for several standardized tests.

Achievement tests for fourth and eighth graders show a 
gap between white and black students but these differences 
occur nationwide and are not confined to the Hillsborough 
County school district. Dr. Armor concluded that most of the 
difference was due to socioeconomic factors (poverty level, 
family income, one or two parent families, and the educational 
background of the parents). Plaintiffs' expert, Dr. Crain, 
disagreed with some of Dr. Armor's methodology and 
assumptions but ultimately agreed that socioeconomic factors 
probably explained most o f the gap in math, but not in reading.

The evidence indicates that any disparity in achievement 
among students is not due to the effects of the prior segregated 
school system but rather to a myriad of other factors, largely 
socioeconomic. To require the School Board to obtain equal 
outcomes for all students is unrealistic. This Court's equitable 
powers are limited to remedying past constitutional violations.

The School Board is doing a reasonably good job of 
providing equal educational opportunities for all students. More 
importantly, it is evident that the School Board and 
Superintendent and staff candidly recognize that there are



263a

deficiencies that need to be addressed and that input and 
involvement from all members of the community are needed to 
remedy these deficiencies. Any disparities that exist are not the 
result of the prior segregated system.

"[NJumerous external factors beyond the control of the 
[School board] and the State affect minority student 
achievement. So long as these external factors are not the result 
of segregation, they do not figure in the remedial calculus.” 
Jenkins. 515 U.S. at 102 (fact that Kansas City school district 
was at or below national norms of achievement in some grades 
was not justification for court in desegregation case to require 
defendant school board to continue to fund quality education 
programs); see also Keyes v. Congress of Hispanic Educators. 
902 F. Supp. 1274, 1299 (D. Colo. 1995) (racial/ethnic 
differences in discipline, participation in gifted programs, 
dropout rates and achievements, among other facets of school 
operation, not vestiges of dual school system existing 25 years 
ago; "[t]here are too many variables, including societal and 
socioeconomic factors, to infer causation from prior 
unconstitutional conduct"), appeal dismissed. 1997 WL 408050 
(10th Cir. July 18, 1997).

G O O D -F A IT H  C O M PL IA N C E

In Freeman, the Supreme Court explained the 
importance of good faith in evaluating whether a school board 
should be released from court supervision:

[A] school district [must] show its good-faith 
commitment to the entirety of a desegregation plan so 
that parents, students, and the public have assurance
against further injuries or stigm a___[T]he good-faith
compliance of the district with the court order over a 
reasonable period of time is a factor to be considered in 
deciding whether or not jurisdiction [can] be



264a

relinquished---- A history of good-faith compliance is
evidence that any current racial imbalance is not the 
product of a new de jure violation, and enables the 
district court to accept the school board's representation 
that it has accepted the principle o f racial equality and 
will not suffer intentional discrimination in the future.

Freeman. 503 U.S. at 498 (citations omitted).

The Court must consider the testimony of various 
witnesses called on behalf of plaintiffs who testified that the 
School Board is not ready to be released from the Court's 
supervision. One of those witnesses was the School Board 
Chair, Doris Reddick, as well as the lead plaintiff in this case, 
Andrew Manning. Although they did not point to any specific 
examples, both Ms. Reddick and Mr. Manning voiced concern 
about what might happen in the future if Court supervision 
ended.

However, these opinions and the anecdotal evidence 
offered by plaintiffs are outweighed by the long history of 
compliance with the Court's Orders and the substantial evidence 
presented by defendants in support of unitary status.

Plaintiffs also contend that Dr. Heuer's testimony about 
the alleged ex parte conversations between the Court and 
defendants in the 1970's demonstrate defendants' lack of good- 
faith compliance in that "major decisions about school 
desegregation are based on one-time conversations, which are 
not clearly articulated and memorialized in court orders." (Dkt. 
796 at 65) According to Dr. Heuer, the Court advised that it was 
not necessary to do anything in response to changes in racial 
enrollments at individual schools if  defendants had not caused 
the imbalances. It is evident that the defendants tried to improve 
the racial balances when making boundary changes and opening 
and closing schools. If this advice was indeed given, there is no



265a

inconsistency between the advice and the Court's Orders. These 
ex parte conversations, while unfortunate, were not initiated by 
defendants and do not demonstrate a lack of good faith on the 
part of defendants in complying with the Court's orders.

Plaintiffs also take issue with the fact that the School 
Board did not initiate the unitary status determination by taking 
a formal vote or holding public hearings but instead responded 
to this Court's Order directing the parties to present evidence on 
the unitary status issue. The fact that this inquiry was initiated 
by the Court, instead of defendants, is not indicative of a lack of 
good faith on the part of defendants. If anything, it indicates 
defendants' commitment to this Court's prior orders and the 
duties imposed by those Orders. Further, after the Court's Order 
was entered, defendants filed a Statement of Position which 
showed a readiness to seek unitary status. (Dkt. 728)54

The School Board has complied in good faith with this 
Court's desegregation orders for quite a long period of time. The 
testimony of the most School Board members, as well as the 
current Superintendent and those responsible for various facets 
of school operation demonstrates that defendants have accepted 
the principle of racial equality and will not revert back to a dual

54Defendants stated that after reviewing the history of the 
case, the relevant court decisions, and aspects of the operations of the 
school system relevant to unitary status, " [defendants represent to 
the Court that the Hillsborough County School system is, and for 
some time, has been unitary. The Defendants therefore ask the Court 
to treat this Response as their request for a declaration that the 
system of public schools operated by the [School Board] is unitary 
under governing legal standards.



266a

school system.55

C O N C L U S IO N

From the very first, federal supervision o f local school 
systems was intended as a temporary measure to remedy past 
discrimination. See Dowell. 498 U.S. at 247. This precept was 
underscored by Justice Anthony Kennedy who authored the 
majority opinion in Freeman:

Returning schools to the control of local authorities at 
the earliest practicable date is essential to restore their 
true accountability in our governmental system. When 
the school district and all state entities participating with 
it in operating the schools make decisions in the absence 
o f judicial supervision, they can be held accountable to 
the citizenry, to the political process, and to the courts
in the ordinary course---- [0]ne of the prerequisites to
relinquishment of control in whole or in part is that a 
school district has demonstrated its commitment to a 
course of action that gives full respect to the equal 
protection guarantees of the Constitution. Y et it must be 
acknowledged that the potential for discrimination and 
racial hostility is still present in our country, and its 
manifestations may emerge in new and subtle forms 
after the effects of de jure desegregation have been

55Plaintiffs contend that the defendants have failed to 
establish unitary status as to any Green factor as well as quality of 
education and good-faith compliance. Efforts to mediate the issues 
raised in the 1994 motion to enforce were unsuccessful. The Court's 
ruling on the unitary status issue, whatever that may be, will likely 
trigger another round of appellate litigation. It is unfortunate that the 
parties have been unable to resolve-or at least narrow~the legal 
issues in dispute. They may not be as far apart as their court filings 
suggest. (See, e.g., Dkt. 796 at 85)



267a

eliminated. It is the duty of the State and its 
subdivisions to ensure that such forces do not shape 
or control the policies of its school systems. Where 
control lies, so too does responsibility.

503 U.S. at 490 (emphasis added).

The Hillsborough County public school system is by no 
meansperfect, but it is in reasonably good hands. No one can 
predict with certainty what lies ahead if the School Board is 
released from court supervision. However, "a fear that a system 
may resegregate in the future, absent credible evidence to 
support those fears, does not justify a federal court's continued 
monitoring of the system." Stell. 860 F. Supp. at 1583 (citation 
omitted).56

The question remains whether this court must or should 
maintain jurisdiction over this case pursuant to Youngblood v. 
Bd. of Public Instruction. 448 F.2d 770 (5th Cir. 1971). In 
Youngblood, the district court, sua sponte. dismissed a school 
integration case after finding that the school system was 
desegregated and unitary. Plaintiffs urged on appeal that rather 
than dismissing the case the court should have maintained the

56However, if the Court has concerns about whether 
defendants have desegregated the elementary schools to the 
maximum extent practicable, continued court supervision over 
student assignment could be retained while relinquishingjurisdiction 
over the other aspects of school operation as long as remedial action 
in the other areas is not necessary to achieve unitary status in the area 
of school assignments. A finding of the School Board's good-faith 
commitment to the entirety of a desegregation plan would also have 
to be made. See Freeman. 503 U.S. at 496-97 (incremental 
declaration of unitary status may be appropriate in certain 
circumstances).



268a

case on the inactive docket and required the school district to 
file status reports. The former Fifth Circuit agreed and vacated 
the dismissal order. It remanded the case to the district court 
which was ordered to (1) reinstate the action and retain 
jurisdiction for not less than three school years; (2) require the 
school district to file semi-annual reports; and (3) not dismiss 
the action again without providing notice to plaintiffs and an 
opportunity to show cause why dismissal of the case should be 
further delayed. See id..

Youngblood, which is binding authority in this circuit,57 
has been interpreted to require a "three-year transitionary 
period" after a declaration of unitary status. Flax v. Potts. 725 
F. Supp. 322 (N.D. Tex. 1989), aff d and remanded. 915 F.2d 
155(5thCir. 1990). In Lee v. Etowah County Bd. OfEduc.. 963 
F.2d 1416 (11th Cir. 1992), the Eleventh Circuit interpreted 
Youngblood more narrowly and held that after a school system 
has implemented a desegregation plan the district court must 
retain jurisdiction for a sufficient time—not less than three 
years—after which it may hold a hearing to determine if unitary 
status has been achieved. See id. at 1421.

Due to what may be an ambiguity in the law,58 and

57See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th 
Cir. 1981) (en banc) (adopting as precedent all decisions of the 
former Fifth Circuit handed down prior to October 1, 1981).

58Compare Dowell, 498 U.S. at 248 ("[A] federal court's 
regulatory control of [public school] systems [should] not extend 
beyond the time required to remedy the effects of past intentional 
discrimination.") (citations omitted) with Freeman. 503 U.S. at 490 
("[S]o too must a court provide an orderly means for withdrawing 
from control when it is shown that the school district has attained the 
requisite degree of compliance. A transition phase in which control 
is relinquished in a gradual way is an appropriate means to this end.")



269a

because the parties have not briefed the issue of whether a 
transition phase is necessary after unitary' status is attained, the 
parties shall do so within the time period for filing objections to 
the Report and Recommendation.

It is therefore R E C O M M E N D E D :

(1) For the reasons previously stated, this Court should 
find that the defendants have demonstrated that the public 
school system of Hillsborough County has attained unitary' 
status and should be released from Court supervision pursuant 
to such further Orders as may be appropriate under the 
circumstances.

/s/_________________________
ELIZABETH A. JENKINS 
United States Magistrate Judge

DATED: August 26th. 1997.

NOTICE TO PARTIES

Failure to file written objections to the proposed 
findings and recommendations contained in this report within 
ten days from the date of its service shall bar an aggrieved party 
from attacking the factual findings on appeal. 28 U.S.C. § 
636(b)(1).

Copies to: Counsel of Record
Hon. Elizabeth A Kovachevich, Chief Judge

Arguably, the showing of a good-faith commitment to the entirety of 
a desegregation plan would make a transition phase unnecessary. See 
Freeman. 503 U.S. at 498.



270a

Appendix 1*

POPULATION IN HILLSBOROUGH COUNTY 1970-1990

All Persons

Year Total White Black Other Spanish Origin
(Any race)

1970 490,265 422,119 66,648 1,498 38,717
1980 646,960 546,575 86,464 13,921 64,199
1990 834,054 690,352 110,283 33,419 106,908

Persons Age 0-17

1970 164,278 135,344 28,527 407 **
1980 176,030 138,945 33,007 4,078 17,762
1990 202,274 152,900 39,163 10,211 28,806

*Taken from DX 2 at 13, W.A.V. Clark's report on 
Demographic Change And School District Impacts In 
Hillsborough County (June 1996).

**no data



Appendix 2*

TABLE OF SCHOOL ATTENDANCE ZONE 0-17 AGE RESIDENTIAL POPULATION 
COMPOSITION FROM CENSUS TRACT AND BLOCK STATISTICS, 1970-1990

School area 1970 1980 1990

Cleveland
**

1657/46 (2.8) 1544/639 (41.3) 1578/654 (41.4)
Edison 1788/343 (19.2) 1463/584 (39.9) 836/590 (70.5)
Graham 1687/347 (22.2) 1288/462 (35.9) 1220/523 (42.9)
Oak Park 1649/117 (7.1) 1703/664 (39.0) 1580/897 (56.8)
Robles 2247/292 (13.0) 2496/781 (31.3) 2875/2054 (71.4)

*Taken from DX 2 at 16, W.A.V. Clark's report on Demographic Change And School District Impacts 
In Hillsborough County (June 1996).

** Total, black and percent black resident population

271a



Appendix 3*

TABLE OF SCHOOL ATTENDANCE ZONE 0-17 AGE RESIDENTIAL POPULATION 
COMPOSITION FROM CENSUS TRACT AND BLOCK STATISTICS, 1980-1990

School area 1980 1990

Cahoon
**

1882/396 (21.0) 2015/677 (33.5)
Clair Mel 3211/523 (16.3) 2832/1112 (55.1)
Foster 1397/438 (31.3) 1215/637 (52.4)
Shaw 2330/312 (13.4) 2696/911 (33.8)
Sulphur Sprgs 1600/242 (15.1) 2771/1431 (51.6)
Witter 1523/267 (17.5) 1809/743 (41.1)
West Tampa 1465/305 (20.8) 1379/436 (31.6)
Dowdell Jr 7494/2070 (27.6) 6572/2584 (39.3)
Van Buren Jr 10998/1613 (14.7) 12583/4983 (39.6)

*Taken from DX 2 at 17, W.A.V. Clark's report on Demographic Change And School District 
Impacts In Hillsborough County (June 1996).

**-Total, black and percent black resident population
Note: Van Buren includes all of the area of Sligh but only junior high students attend Van Buren.

272a



273a

Report and Recommendation of Magistrate Judge 
June 23,1995

United States District Court, M.D. Florida.

Andrew L. MANNINGS, et al.. Plaintiffs, 
v.

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

of Hillsborough County, Florida), et al., Defendants.

No. 58-3554-CIV-T-17A.

June 23, 1995.

Marianne Engelman Lado, Jacqueline A. Berrien, NAACP 
Legal Defense & Educational Fund, Inc., New York, NY, 
Victor A. Bolden, Wiggin & Dana, New Haven, CT, Warren H. 
Dawson, Dawson & Griffin, P.A., Tampa, for Andrew L. 
Manning, a minor, by his father and next friend, Willie 
Mannings, Shayron B. Reed, by his father and next friend, 
Sanders B. Reed, Sandra E. Reed, by her father and next friend, 
Sanders B. Reed, Nathaniel Cannon, minor, by his father and 
next friend, Nathaniel Cannon, Sr., Norman Thomas Cannon, 
minor, by his father and next friend, Nathaniel Cannon, Sr., 
Tyrone Cannon, minor, by his father and next friend, Nathaniel 
Cannon, Sr., Darnel Cannon, minor, by his father and next 
friend, Nathaniel Cannon, Sr., Gail Rene Myers, a minor, by her 
father and next friend, Randolph Myers, plaintiffs.

Thomas M. Gonzalez, Thompson, Sizemore & Gonzalez, P.A., 
Walter Crosby Few, Few & Ayala, P.A., Tampa, for Board of 
Public Instruction of Hillsborough County, FL, Clyde McLeod, 
AL Chiaramonte, John E. Coleman, member of Board of Public 
Instruction of Hillsborough County, FL, Marvin Green, J. 
Crockett Famell, Supt., Hillsborough County, FL, School Board



274a

of Hillsborough County, Formerly Board of Public Instruction 
o f Hillsborough County, Florida, defendants.

REPORT AND RECOMMENDATION 

JENKINS, Magistrate J.

*1 THIS CAUSE comes before the Court on Plaintiffs' 
Amended Motion to Enforce Court Order and Consent Order 
and for Further Relief and Memorandum (docs.601, 602), and 
Defendants' Response (doc. 605), Plaintiffs' Proposed Findings 
of Fact and Conclusions of Law (doc. 688), Defendants' 
Proposed Findings of Fact and Conclusions of Law (doc. 689) 
and the other submissions of the parties pertinent to the 
motion.1

An evidentiary hearing was held on October 24 and was 
concluded on November 22,1994. Thereafter, the parties were 
ordered to mediation in an effort to resolve their disputes. No 
settlement was reached and on April 20, 1995 closing 
arguments were presented.

Plaintiffs ask that the Court 1) enforce the October 24, 
1991, Consent Order and the May 11,1971, Opinion and Order 
by requiring Defendants to take such steps as may be necessary 
to prevent the establishment and operation of West Tampa 
Elementary School, part of the recently implemented Jefferson 
Cluster, as an additional racially identifiable black school in 
Hillsborough County in the 1994-95 (and succeeding) school 
years; 2) require Defendants to take immediate effective steps 
to desegregate currently existing racially identifiable schools;

1

This matter was specifically referred to the magistrate judge by Order 
of the Honorable Elizabeth A. Kovachevich, United States District 
Judge.



275a

and 3) require Defendants to comply with the Consent Order 
and 1971 Order in the formulation and implementation of the 
remaining cluster assignments pursuant to their middle school 
plan.2

For the following reasons, the amended motion to 
enforce should be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND3

On May 11,1971, the Court entered an Order requiring 
the Hillsborough County School Board to prepare and submit 
for approval a comprehensive plan for desegregating the school 
system ("1971 Plan").

On July 2,1971, the Court approved for implementation 
the submitted comprehensive plan and retained jurisdiction to 
take further action as necessary. The 1971 plan was designed 
to desegregate student enrollment in grades 1 -12, as required by 
the Court; kindergarten was not included nor was pre-school.

The 1971 Plan required the conversion of twelve 
formerly all-black "inner city" elementary schools4 to single­
grade attendance centers serving the 6th grade. Each

2Plaintiffs also sought to require Defendants to modify the 
format of their annual reports, but the parties indicated during the 
course of the hearing that the issue has been resolved.

3Unless otherwise indicated, the facts in this section are those 
to which the parties stipulated prior to the evidentiary hearing on 
plaintiffs' amended motion to enforce, (doc. 657, p. 11-20)

4Bryan, Carver, College Hill, Cuesta, Dunbar, Jackson 
Heights, Lomax, Meacham, Orange Grove, Potter, Shore and 
Williams.



276a

elementary grade-level (1-5) attendance area of each of these 
formerly all-black elementary schools was divided into two to 
five "satellite areas."5 Students residing in each of these 
"satellite areas" were assigned to attend a formerly white 
school, to which they were transported for grades 1-5.

By October 27, 1971, Defendants had desegregated all 
Hillsborough County schools. There were no majority-black 
schools and only one school, Lee Elementary, had more than a 
40% black student population. (T2-53-54)6

Each year following implementation of the 1971 Plan, 
the School Board filed at least two reports with the Court and 
furnished copies of the reports to Plaintiffs. The first report 
(usually submitted in the fall) provided enrollments by race and 
grade and faculty assignments by race at each school serving 
grades 1-12 in the system. The second report enumerated 
changes in student assignment, if any, proposed for the 
following school year.

*2 The student assignment report included, inter alia, 
boundary changes occasioned by overcrowding and student 
assignment modifications necessitated by the construction of 
new schools. The reports included projections o f anticipated 
enrollments, by race, at schools affected by the proposed 
changes.

5A satellite zone is an area which is not contiguous with the 
main attendance zone surrounding a school. May 11, 1971 Order, p. 
29, n. 41.

References to the transcript of the evidentiary hearing held 
on October 27, 1994 (doc. 663) and concluded on November 22, 
1994 (doc. 671) are indicated as "Tl" or "T2", respectively, followed 
by the page number.



277a

At least since January 14, 1975, the Court has not 
directed the School Board to prepare a supplemental plan or to 
take any action with respect to the racial composition of any of 
its schools, including, but not limited to, schools whose 
enrollments were more than 50% black.

Plaintiffs have not, from the date of implementation of 
the 1971 Plan until June, 1994, filed any written objections with 
the Court respecting the actual or projected enrollments of any 
schools in Hillsborough County, including schools whose 
enrollments were more than 50% black.

Plaintiffs did object in 1980 to the closing of George 
Washington Junior High School and Glover Elementary S chool 
(for reasons other than racial composition), proposed actions 
which were approved by the Court after a hearing on plaintiffs' 
objections.

Plaintiffs also objected in 1990 (for reasons other than 
anticipated racial composition of enrollments) to the proposed 
conversion of Blake 7th-grade center to a magnet high school, 
a proposal which the Court disapproved (without prejudice to 
subsequent resubmission as part of a comprehensive 
restructuring plan) by Order of January 23, 1991.

The School Board has not requested a finding of partial 
or full unitary status by the Court and/or the vacation, in whole 
or in part, of the previous Orders of the Court. The Court has 
therefore not had occasion to make, nor has it made, a 
determination whether all vestiges of the prior racially 
discriminatory dual school system in Hillsborough County have 
been eliminated to the extent practicable.

Since the 1977-78 school year, the School Board has 
made more than 300 modifications in student assignments to 
relieve overcrowding, to accommodate the opening of newly



278a

constructed facilities, or for other reasons, but not for the 
purpose of affecting the racial ratio of a school.

When making assignment changes to relieve 
overcrowding or to accommodate new construction, the School 
Board has taken into account the racial mix within the new 
boundary and the effect of the boundary changes on the 
enrollment ratios at the affected schools.

In addition, in making assignment changes to deal with 
problems of overcrowding or with new school construction, the 
district, where practicable, reassigned, or divided and partially 
reassigned, existing satellite zones (those originally created in 
1971) in a manner that moved enrollments toward the system- 
wide ratio.

In particular, when the School Board constructed a new 
facility in a suburban area having a small resident black student 
enrollment within the contiguous zone created surrounding the 
facility, it would reassign pre-existing satellite zones to increase 
the number of black students assigned to the new facility.

*3 In modifying student assignments to relieve 
overcrowding or in connection with the opening of a new 
facility, the School Board has since the 1975-76 school year 
created non-contiguous zones or satellites in at least seven 
instances.

The School Board has never created a new non­
contiguous or satellite zone solely to alter the racial enrollment 
ratio at a school, including those schools with majority-black 
enrollments.

Since 1986, the School Board has not initiated any 
boundary changes, (not otherwise being considered for reasons 
such as overcrowding or the opening of a newly constructed



279a

school facility) for the purpose of altering the racial enrollment 
ratio at a school, including at schools that had majority-black 
enrollments.

In November 1989, Superintendent Walter Sickles 
appointed a task force to investigate and make 
recommendations for reorganizing the school system and 
implementing a middle school program.

One of the stated goals of the task force was to retain a 
desegregated school system.

In late 1990 or early 1991, the School Board invited 
plaintiffs and their counsel to consider the tentative middle 
school plan being developed by the Task Force.

During the first six months of 1991, several meetings 
between school board staff and plaintiffs' counsel took place 
(concerning the middle school plan). Plaintiffs' educational and 
desegregation consultant, Dr. Leonard Stevens, also participated 
in several of the meetings including meetings held on July 16, 
1991.

Following the July 16, 1991 meeting, a formal report 
entitled "Middle School Task Force Report 3, July 1991" (Task 
Force Report) was submitted to and approved by the School 
Board and subsequently transmitted to plaintiffs' counsel on 
August 20, 1991.

More than two months later, the Task Force Report was 
attached to and made part of the Consent Order submitted and 
executed by counsel for plaintiffs and defendants which was 
approved and entered by the Court on October 24, 1991. (PX 
48)



280a

The Task Force Report proposed modifications 
(proj ected to be implemented over a seven-year period) o f grade 
organization and student assignments in the Hillsborough 
County school system to accommodate the establishment of 
middle schools. (Consent Order, p. 2)

Implementation of the middle school concept involved 
creating attendance "clusters" which grouped elementary and 
middle schools around the high school which those students 
would ultimately attend. Each of the 17 clusters was thus 
named for the high school which was the basic unit, e.g. the 
"Jefferson [High School] Cluster". (Task Force Report, p. 10)

As described in the Task Force Report, the Jefferson 
Cluster was to be implemented between 1996 and 1998.

Subsequent to the entry of the Consent Order, the 
School Board decided to implement the Jefferson Cluster in the 
1994-95 school year.7

The Task Force Report indicated that the Jefferson 
Cluster was to be implemented by changing the grade structure 
of West Tampa Elementary School from a K-6 facility to a K-5 
school.

*4 However, two changes in the School Board's 1994- 
95 implementation plan for the Jefferson Cluster differed from 
the plan in the 1991 Task Force Report.

The implementation plan, which was approved by the 
School Board and carried out pursuant to the parties' Agreed

’Apparently, delays in construction in the East Bay Cluster 
resulted in a decision to implement the Jefferson Cluster earlier than 
anticipated. (Tl-77)



281a

Interim Order, provided that West Tampa Elementary School 
(West Tampa) will continue to operate as a K-6 school until the 
"Blake/Just" or "Downtown" Cluster is implemented.8

Only part of the sixth-grade students, those who walked 
to school, were retained at West Tampa. Those students were 
projected to attend Just Middle School which is part of the 
Blake (downtown) cluster and Just was not ready to accept 
elementary students yet because the Blake cluster had not been 
implemented. (T2-122-123)

Furthermore, although the Task Force Report envisioned 
that the area of the Jefferson Cluster formerly assigned as a 
satellite zone to Mabry Elementary School would be assigned 
to Dickenson Elementary, that satellite zone is instead assigned 
to Bay Crest Elementary School under the 1994-95 
implementation plan.

As of October 19, 1993, there were one hundred fifty- 
one (151) public schools in Hillsborough County: 111 are 
elementary schools, 26 are junior high/middle schools and 14 
are high schools. (PX23)9 Defendants state that there are now 
one hundred sixty (160) public schools in Hillsborough County.

Approximately sixteen (16) of the public schools, 
primarily elementary schools, have black student enrollments of 
40% or more. (doc. 601, p. 2)

8At closing argument on April 20, 1995, defendants stated 
that the temporary measure of retaining grade 6 at West Tampa will 
end at the close of the school year in 1996.

9Exhibits introduced by plaintiffs at the evidentiary hearing 
will be indicated by the letters "PX"; those introduced by defendants 
will be indicated by the letters "DX".



282a

The percentage of black students enrolled in the school 
system has remained fairly stable since 1971 at around the 20% 
level; currently the system-wide percentage of black students 
attending elementary schools is about 23%, about two 
percentage points higher than in 1971. (T l-110).

II. DISCUSSION

In their amended motion to enforce, Plaintiffs seek to 
require Defendants to take affirmative steps to prevent the 
establishment and operation of West Tampa Elementary School 
as an additional racially identifiable black school in 
Hillsborough County in the 1994-95 (and succeeding) school 
years. Plaintiffs contend that Defendants did not comply with 
either the 1971 Order or the 1991 Consent Order in 
implementing the Jefferson Cluster in the 1994-95 school year. 
Further, plaintiffs state that Defendants have a continuing 
affirmative duty to prevent the creation or maintenance of any 
racially identifiable schools within Hillsborough County, 
regardless of whether Defendants fully complied with the 1971 
Order in directing the immediate desegregation of Hillsborough 
County public schools.

As of December, 1993, West Tampa had a black student 
enrollment of 41%, which, according to the Task Force Report, 
was projected to be the enrollment once the Jefferson Cluster 
was implemented. However, the percentage of black students 
at West Tampa is currently approximately 48% (T l-113)

Under the Court's 1971 Order:

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



283a

*5 (b) In preparing the plan the school board shall begin 
with the proposition that a white-black ratio of 
86%/14% in the senior high schools, 80%/20% in the 
junior high schools, and 79%/21% in the elementary 
schools would be the most acceptable and desirable 
form of desegregation.

The Consent Order into which the parties entered in 
October 1991 ordered that any modifications in student 
assignment patterns resulting from demographic or other 
changes must be made with an eye toward "minimiz[ing] (to the 
extent practicable) the number of schools which deviate from 
the system-wide student enrollment ratios Consent Order, p. 
6.

A. The 1971 Order

Plaintiffs contend that the 1971 Order requires 
Defendants to prevent and/or remedy the reoccurrence of 
"racially identifiable" schools.

Approximately sixteen (16) of the public schools in 
Hillsborough County fall into the category of racially 
identifiable schools, according to Plaintiffs and their consultant, 
Dr. Stevens, and the definition they use (40% or more black 
students).

While not denying the statistical evidence cited by 
Plaintiffs, Defendants disagree with Plaintiffs' definition of a 
racially identifiable school as a school having a population of 
black students of forty-percent (40%) or more. Defendants also 
maintain that the 1971 Order required the desegregation of all 
schools and that such desegregation had occurred as of



284a

December, 1971.10

Racial Enrollments Generally

Plaintiffs do not dispute that Defendants initially 
complied with the 1971 Order in desegregating the public 
schools of Hillsborough County.

In Harris v. Crenshaw County Bd. o f  Educ., 968 F.2d 
1090, 1095 (11th Cir.1992), the Eleventh Circuit reiterated the 
obligation of a school board operating under a desegregation 
order:

Until a school system achieves unitary status, it has an 
affirmative duty to eliminate the effects of its prior 
unconstitutional conduct. To fulfill this duty, school 
officials are obligated not only to avoid any official 
action that has the effect of perpetuating or 
reestablishing a dual school system, but also to render 
decisions that further desegregation and help to 
eliminate the effects of the previous dual school system.

Id. at 1094-95 (footnotes omitted). Also, "[i]f a school system's 
violation of its duty to desegregate has been the cause of a racial 
imbalance in student attendance, then the condition must be 
remedied". Id. at 1096, citing Freeman v. Pitts, 503 U.S. 467 
(1992).

I0The response to the amended motion to enforce incorrectly 
asserts that this Court has "cleansed" the School Board of the "mortal 
sin of de jure discrimination based on race." (doc. 606, p. 10) 
However, this statement is not reflective of defendants' testimony at 
the hearing and the error appears to be counsel's.



285a

However, the "constitutional command to desegregate 
schools does not mean that every school in every community 
must always reflect the racial composition of the school system 
as a whole." Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 
402 U.S. 1,24(1971).

In Pasadena City Bd. o f  Ed. v. Spangler, 427 U.S. 424, 
434 (1976), the defendants sought, inter alia, to eliminate the 
Court-mandated "no majority of any minority" requirement, i.e., 
no school in the district could have a majority enrollment of any 
minority group. The district court denied the defendants' 
motion in that regard, and the Ninth Circuit affirmed. The 
Supreme Court reversed, finding that the district court erred in 
interpreting its order to *6 contemplate the 'substantive 
constitutional right [to a] particular degree of racial balancing 
or mixing' which the Court in [Swann v. Board o f  Education, 
401 U.S. 1 (1970) ] expressly disapproved. (Citation omitted). 
It became apparent, at least by the time of the 1974 hearing, that 
the District Court viewed this portion of its order not merely as 
a "starting point in the process of shaping a remedy," which 
Swann indicated would be appropriate, (citation omitted), but 
instead as an "inflexible requirement," (citation omitted), to be 
applied anew each year to the school population within the 
attendance zone of each school.

Although acknowledging that "[i]t may well be that 
petitioners have not yet totally achieved the unitary system 
contemplated by .. . Swann," the Supreme Court continued:

But that does not undercut the force of the principle 
underlying . . . Swann. In this case the District Court 
approved a plan designed to obtain racial neutrality in 
the attendance of students at Pasadena's public schools. 
No one disputes that the initial implementation of this 
plan accomplished that objective. That being the case, 
the District Court was not entitled to require the



286a

[Pasadena Unified School System] to rearrange its 
attendance zones each year so as to ensure that the racial 
mix desired by the court was maintained in perpetuity. 
For having once implemented a racially neutral 
attendance pattern in order to remedy the perceived 
constitutional violations on the part of the defendants, 
the District Court had fully performed its function of 
providing the appropriate remedy for previous racially 
discriminatory attendance patterns.

Spangler, 427 U.S. at 436-37.

The Supreme Court's concern in Spangler was the 
inflexibility of the "no majority of any minority" requirement. 
Based on Spangler, it is clear that Defendants have no 
continuing duty to maintain a particular black-white ratio on a 
school-by-school basis, year in and year out, including the 
80%/20% ideal set forth in the 1971 Order.

Plaintiffs' argument that the Defendants have an ongoing 
duty to redesegregate schools in which minority enrollment 
approaches 50% essentially seeks to impose a "no majority of 
any minority" rule in this case. As shown above, such a rule 
cannot be enforced.

Furthermore, the 1971 Order did not impose such a 
mandate on Defendants. In formulating their desegregation 
plan, Defendants were ordered to follow certain guidelines, 
including:

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



287a

(b) In preparing the plan the school board shall begin 
with the proposition that [the 80/20 ratio] would be the 
most acceptable and desirable form of desegregation.

1971 Order, pp. 43-44 (emphasis added).

On July 2,1971, the Court found that the plan submitted 
by Defendants "fully complies with the Court's Order of May 
11, 1971, and the law and will result in the establishment of a 
unitary school system in Hillsborough County, Florida." Order, 
p. 9. The highlighted language does not support Plaintiffs' 
reading of the 1971 Order as imposing an ongoing duty to 
maintain a particular racial balance once Defendants have 
effected compliance with its terms. Neither the literal terms of 
the 1971 Order nor Supreme Court precedent justifies this view.

*7 As noted subsequently, Defendants have 
implemented changes in the desegregation plan, with the 
approval of plaintiffs and this Court, as a result of the Task 
Force Plan recommending the single-grade centers with middle 
schools and organizing all schools into geographic clusters. In 
this phase, which commenced in 1991, Defendants contend that 
they endeavored to bring as many schools as possible in line 
with the 80/20 ratio.

Thus, while Defendants have not been mandated to 
maintain a particular racial balance at each school, they have 
utilized the 80/20 ratio identified in the 1971 Order as a guide 
in formulating student attendance zones for district schools.

In summary, there is nothing in the 1971 desegregation 
order which requires the School Board to periodically adjust the 
racial enrollment at particular schools on an annual or less 
frequent basis once the initial goal of desegregation of student 
attendance patterns has been achieved.



288a

The definition of a racially identifiable school

The parties also dispute what measure determines 
whether a school is "racially identifiable".

Plaintiffs point out that this Court has stated that "[a] 
school with a majority black population would undoubtedly be 
identifiable as a black school. The racial identification of 
schools is the antithesis of a unitary school system." Mannings 
v. School Board o f  Hillsborough County, Florida, 151 F.R.D. 
133, 136 (M.D. Fla.1993). That published decision concerned 
a motion to intervene by persons objecting to the middle school 
Task Force Report. In the course of addressing the proposed 
intervenors' objections that black students cannot maintain a 
majority of the school population in black communities, the 
Court made the above-quoted statement.

Defendants argue that the precise definition of a racially 
identifiable school was not at issue in the motion to intervene 
and the Court's pronouncement was dicta. Moreover, 
Defendants argue that inquiry into racial identifiability of its 
schools is premature at this point because the Court has not yet 
been asked to determine whether the Hillsborough County 
public school system has attained unitary status.

The current issue before the Court as to the 1971 Order 
is whether defendants have an ongoing duty to maintain a 
particular racial balance at each school since 1972. The clear 
answer to that is "no".

The determination of whether a school system has 
attained unitary status involves consideration of a number of 
factors, including the administration, student assignment, 
personnel, extracurricular activities and resource allocation for 
each school, as well as the districting of the entire school 
system, and whether the school system is proceeding to



289a

desegregate its schools in good faith. Green v. County School 
Bd. o f  New Kent County, Va., 391 U.S. 430, 436 (1968). The 
ultimate goal is a school system with schools that are racially 
nonidentifiable, i.e. not white schools and black schools, but 
rather just schools. Id. at 441.

*8 In Freeman, the Court observed that "as in most 
cases, where the issue is the degree of compliance with a school 
desegregation decree, a critical beginning point is the degree of 
racial imbalance in the school district, that is to say a 
comparison of the proportion of majority to minority students 
in individual schools with the proportions of the race in the 
district as a whole." Freeman, 112 S. Ct. at 1437. Freeman 
held that a determination of unitary status can be made 
incrementally before full compliance has been achieved in every 
area of school operations. Id. at 1445.

While the instant litigation does not involve a 
determination of unitary status, this Court may wish to 
determine what percentage of minority or maj ority race students 
shall be used to define racially identifiable schools in 
Hillsborough County'.

In doing so, this Court does not write on a blank slate. 
As noted, a definition of majority-black students was suggested 
in the 1993 Mannings order denying the motion to intervene. 
151 F.R.D. at 136. However, the definition o f racial 
identifiability was not directly at issue in that motion.

The May 11, 1971 Order finding that the Hillsborough 
County school system remained racially segregated referred to 
"a white school" as "a school that is attended by white students 
only, or whose student body is at least 95% white" and a "black 
school" as "a school with a student population that is all black 
or at least 90% black." May 11, 1971 Order, p. 11, n. 13. 
Nevertheless, the Court (the Honorable Ben Krentzman)



290a

ordered defendants to immediately desegregate "all schools in 
their school system where at least half the students are black." 
May 11, 1971 Order, p. 39, 43)

Plaintiffs' consultant, Dr. Stevens, defines a racially 
identifiable school as one which has 40% or more black 
students because "once you get schools that are running 20 
points or more at variance from the district-wide average, racial 
identifiability is a fact of life and becomes a reality for that 
school." (T2- 110) He states that one-third of all black 
elementary students in Hillsborough County are attending 
schools which are more than 40% black. (T2-218)

The courts have wrestled with the definition of what 
constitutes a racially identifiable school. See e.g. Morgan v. 
Nucci, 831 F.2d 313, 320 (1st Cir.1987) (declining to consider 
whether 80% or 90% minority enrollment makes a school 
racially identifiable while stating that 75% was too low a figure 
for Boston schools); see also Riddick by Riddick v. School 
Board o f City o f  Norfolk, 784 F.2d 521, 533 (4th Cir.) (a 
racially identifiable school has fewer than 30% or more than 
70% minority or non-minority students), cert, denied, 479 U.S. 
938 (1986); Yarborough v. Hulbert-West Memphis School 
District No. 4 ,457 F.2d 333, 334 (8th Cir.1972) (no fewer than 
30% of the minority race at each school); Diaz v. San Jose 
Unified School District, 633 F. Supp. 808, 813 (N.D.Cal.1989) 
(a desegregated school is one with at least 20% majority and at 
least 20% minority students; noting expert testimony that "an 
ethnic group would risk continued isolation if  it did not 
represent at least 20% of the student body at a given school"), 
o ff  d m  F.2d 591 (9th Cir.1988) n

“One Eleventh Circuit opinion which was subsequently 
vacated stated in a footnote that a school which was 64% black was 
clearly not racially identifiable while a school which would be 94%



291a

*9 Some courts have focused on the extent to which 
black student enrollments vary from district-wide enrollment 
ratios. See Little Rock School District v. Pulaski County 
Special School Dist. No. 1, 839 F.2d 1296, 1307 (8th Cir.1988) 
(a racially identifiable black elementary school is one having a 
black student enrollment in excess of the applicable range of 
variance from the system-wide percentage of black students, 
citing Penick. v. Columbus Board o f  Education, 583 F.2d 787, 
799 (6th Cir.1978), a ffd 443 U.S. 449 (1979)); Stellv. Board o f  
Pub. Educ. fo r  Savannah, 860 F. Supp. 1563, 1574-80 (S.D. 
Ga. 1994) (aim of desegregation order was to bring all schools, 
to the extent practicable, within +/-20 percent of district-wide 
ratio).

The Stell decision supports the approach suggested by 
plaintiffs' expert, Dr. Stevens. However, his definition o f a 
racially identifiable black school as one having 40% or more 
black students (20 basis points above the district-wide norm) is 
a standard which has never been articulated or adopted by this 
Court. Even if Dr. Stevens' definition is used, 43% instead of 
40% would be arguably be the correct measure for elementary 
schools whose black student population is approximately 23% 
at present.

Defendants have not proposed a definition of a racially 
identifiable school although Dr. John Miliziano, the 
Superintendent's Administrative Assistant, testified that he 
considers a school with more than 50% black students or

black clearly would be. Lee v. Macon County Bd. of Educ., 970 F.2d 
767,774 n.23 (11th Cir. 1992), vacated, 987 F.2d 1521 (11th 
Cir.1993).



292a

students of one race to be identifiable by race. (T2-146)12 Dr. 
Miliziano has worked for the School Board for a number of 
years and one of his chief responsibilities since becoming 
Administrative Assistant has been to monitor and work with the 
desegregation plan, in particular the cluster plan. (T2-44)

Neither plaintiffs nor their consultant have raised any 
objection to racial enrollments at schools where the percentage 
of black students is significantly lower than the district-wide 
ratio. Rather, they ask Defendants to take remedial action as to 
those schools which plaintiffs contend are racially identifiable 
as black schools.

In their amended motion to enforce, plaintiffs have 
identified eight schools with 50% or more black enrollment13 
and eight with 40% to 50% black enrollment.14 This 
information is from the 1993 Annual Report which Defendants 
filed with the Court, (doc. 601, p. 2)

If this Court adopts the definition suggested in the 1993 
Mannings order, then all schools in Hillsborough County

12Plaintiffs point out that another School Board official, 
Kenneth Allen, Director of Pupil Administrative Services, testified 
that he does not have a working definition of a racially identifiable 
school but has operated under the assumption that "if there are 
students of mixed race at school, that is a desegregated school." (Tl- 
234). Mr. Allen's responsibilities include formulating attendance 
boundaries for the schools contained within each cluster. (T1-222).

13Those schools are: Robles (90%), Edison (74%), Sulphur 
Springs (70%), Oak Park (66%), Graham (63%), Cleveland (59%), 
Foster (57%), Witter (56%), and Van Buren (50%).

14Clair Mel (48%), Shaw (48%), Cahoon (47%), Dowdell 
(46%), Sligh (43%), West Tampa (41%), and DeSoto (40%).



293a

having black student populations of more than 50% shall 
qualify as racially identifiable schools. Approximately eight 
schools fit this definition. West Tampa is not one of those 
although it does fit Dr. Stevens' definition of a racially 
identifiable school because its black student enrollment is more 
than 40%.

Official Policy and Student Attendance Zones

A racial imbalance in student attendance zones is not 
tantamount to a showing that a school district is in 
noncompliance with the decree or its duties under the law. 
Once the racial imbalance due to the de jure violation has been 
remedied, the school district is under no duty to remedy 
imbalance that is caused by demographic factors. Freeman, 111 
S. Ct. at 1446. (citations omitted).

*10 If the unlawful de jure policy of a school system 
has been the cause of the racial imbalance in student attendance, 
that condition must be remedied. The school district bears the 
burden of showing that any current imbalance is not traceable, 
in a proximate way, to the prior violation. Id. at 1447.

Due to the parties' disagreement over the meaning and 
scope of the 1971 Order, Defendants were not required to prove 
at the evidentiary hearing that the increased black enrollments 
at the sixteen schools identified by plaintiffs were due to 
demographic changes. However, such a showing is arguably 
unnecessary in the absence of some official school board action 
which could have created the racial imbalance.

Defendants agree that whenever the School Board takes 
action such as constructing new schools, closing old or 
unneeded schools, or changing attendance boundaries to 
accommodate educational needs, it must consider the racial mix 
resulting from the new or altered attendance patterns and refrain



294a

from any action which would lead to the reestablishment of a 
segregated system.

Defendants deny that they have an obligation to 
compensate for a particular student enrollment ratio at a school 
absent any School Board action directly altering the attendance 
zone of the school in question.15

The stipulated facts indicate that Defendants have 
initiated boundary changes only for the purpose of relieving 
overcrowding or populating new schools, and have never 
altered attendance zones or created satellites solely to alter the 
racial enrollment ratio at a school, including those with a 
majority black enrollment. Nor has the School Board ever 
created a new school or changed boundaries to create a school 
that was over 50% black. (T2-146)16

Plaintiffs contend that Defendants have taken a 
continuous series of district-wide School Board actions (such as 
attendance zone modifications, new construction, addition of 
portable classrooms and use of special assignments) that have 
affected the racial enrollments of schools.

The Special Assignment Policy

15Defendants argue that they understood the 1971 Order to 
mean that they need not compensate for any changes in enrollment 
ratios not caused by a boundary change and attempted to introduce 
evidence at the hearing of alleged ex parte communications to this 
effect between the District Judge formerly presiding over this case 
and a former school board employee. This evidence was ruled 
inadmissible.

i6The School Board uses the term attendance zones and 
boundaries interchangeably. (T2-150)



295a

At the evidentiary hearing on the motion to enforce the 
only School Board action specifically addressed by Plaintiffs 
was the student special assignment policy established in the 
1971 Order. This Court has not altered Defendants' obligations 
under this policy since that time.

The Court's 1971 Order prohibits the School Board from 
granting transfers except in six situations: (1) a voluntary 
transfer from any school in which the student is a member of 
the majority race o f the student population to the closest school 
to the student's residence in which the student is in a minority; 
(2) a recommendation by the juvenile court; (3) the needs of 
exceptional children, as that term is defined by state law; (4) to 
allow the children o f Defendants' faculties and staff to attend 
school where one of their parents worked; (5) to attend 
vocational school; and (6) severe hardship.

The 1971 Order also directed that special assignments 
were to be made "without regard to race, except that special 
attention will be given to ensure that transfers are not approved 
which are made for the purpose of avoiding desegregation." 
1971 Order, p. 2. The Court also appointed a Bi-Racial 
Advisory Committee to act as an advisor to the School Board 
regarding transfers, school zones, and future site locations 
among other areas.

*11 The Bi-Racial Committee considers all transfer 
requests except for those from juvenile courts. In the case of 
transfers under grounds (3), (5), and (6), the School Board may 
approve such transfers only after considering recommendations 
by the Bi-Racial Committee. Transfer requests made under 
grounds (1) and (4) were to be reported to the Bi-Racial 
Committee by the Board.

Data on how the special assignments affect the racial 
balances at each school is collected by the School Board on an



296a

annual basis. (T2-70-71) The Fourth Annual Report, filed on 
April 10,1995 (doc. 695) contains the most current statistics for 
each school in Hillsborough County concerning special 
assignments. This Report was submitted after the evidentiary 
hearing on plaintiffs' amended to enforce and has therefore not 
addressed to any extent by the parties in their submissions. This 
data is not subdivided by the category of the transfer request, 
e.g. severe hardship, exceptional children needs, etc. (Fourth 
Annual Report, p. 97-100) For some unknown reason, the 
Third Annual Report does not include this data on special 
assignments.17

Plaintiffs' argument that the School Board must deny 
special assignment requests from students whose race 
constitutes more than 40% of the enrollment of the school they 
wish to attend (or whatever percentage this Court finds makes 
a school racially identifiable) is directly contrary to the Court's 
direction that requests for transfers must be considered without 
regard to race (except for transfers made for the purpose of 
avoiding desegregation).

Even Dr. Stevens did not classify the School Board's 
long-standing interpretation of the policy (to grant hardship 
special assignment requests without regard to race) as a 
violation of the 1971 Order; he felt that the Court should 
"revisit" the issue because that interpretation was 
counterproductive to desegregation. (Tl-190)

’’Although the Third Annual Report filed in April 1994 
contains a similar section, no data is included for special assignments 
in the copy of the report filed with the Court; rather duplicates of a 
report on students transported for desegregation purposes is included. 
(Third Annual Report, p. 105-114)



297a

At the hearing, the only special assignment requests 
addressed by plaintiffs were those made by parents of black 
children who wanted their children to remain at West Tampa 
Elementary because of neighborhood child care facilities. 
Plaintiffs do not contend that these requests were made by these 
parents for the purpose of avoiding segregation, but state that 
Defendants must deny such special assignment requests from 
black parents if necessary to maintain a certain race ratio, e.g. 
to keep the black enrollment at West Tampa below 40%, 
irrespective of the hardship which would be caused by denial of 
those requests.

Under the current policy, Defendants are prohibited 
from considering race in deciding special assignment requests; 
Plaintiffs have not shown that Defendants have violated any 
provision of the Court's 1971 Order regarding special 
assignments.

Based on the present record, it does not seem advisable 
for this Court to modify the special assignment policy to require 
denial of hardship requests if  necessary to maintain a particular 
race ratio at a school. It is a fact of life that many parents must 
rely on after-school care for their children, and there is no 
denying that failure to accomodate such requests would lead to 
severe hardship in many cases.

*12 Based upon the data provided in the Fourth Annual 
Report, it is clear that the special assignment requests as a 
whole do not have a significant impact on racial enrollments on 
the eight majority-black schools identified in plaintiffs 
amended to enforce. All of these schools, with one exception 
would still be majority-black schools, even without the special 
assignments. That exception is Van Buren, the only junior high 
school among these eight schools, which has a 52/48 ratio and 
would have a 50/50 ratio without the special assignments. Of 
the other seven majority-black schools, the increase in black



298a

enrollments caused by special assignments ranged from 1% 
(Oak Park and Whitter) to 7% (Robles).

Accordingly, Plaintiffs have not established that 
Defendants have taken official action with respect to the special 
assignments policy, with the intent to return to a dual school 
system or hinder desegregation.

Plaintiffs' Prior Actions and Representations

Even if such an affirmative duty to prevent racially 
identifiable schools existed once initial compliance with the 
desegregation order was achieved (even in the absence of any 
official school board policy), this Court should not ignore 
Plaintiffs' silence on this very issue.

It is undisputed that by the end of 1971 Defendants had 
desegregated all Hillsborough County schools, and there were 
no schools having a majority black student population and only 
one which was at 40-41%, Lee Elementary. (T2-53-54). In 
subsequent years, the percentage of black students increased at 
some schools.

Plaintiffs have been served with copies of the Annual 
Reports each year since entry of the 1971 desegregation order 
and the statistics in the Annual Reports indicated the racial 
enrollments at each Hillsborough County school, including 
those which greatly exceeded the 20/80 ratio recommended by 
the Court.18 Yet, between 1975 and 1994, a period of almost

^Defendants' Proposed Findings of Fact and Conclusions of 
Law (doc. 689, p. 6-9) summarize the pertinent information in the 
Annual Reports with respect to schools which had black student 
populations of 40% or more. Copies of the Annual Reports were also 
introduced as exhibits at the evidentiary hearing. Defendants do not



299a

twenty years, Plaintiffs filed no objection nor otherwise 
complained to the Court about the existence of "racially 
identifiable schools," even though such schools had existed 
within the system (according to plaintiffs' definition) almost 
continuously since 1971.

Moreover, in late 1990, Defendants sought permission 
from the Court to establish a magnet school at Hillsborough 
High School. Plaintiffs objected to this proposal and stated in 
a written response filed with this court that "the schools in 
Hillsborough County are desegregated under the existing 
decrees and the plan they incorporate."

That eight Hillsborough County schools have become 
majority (more than 50% black) since 1971 does not 
demonstrate that Defendants have violated this Court's 1971 
Order or have failed in their affirmative obligation to eliminate 
the effects of the School Board's prior discriminatory and 
unconstitutional conduct.* 19 Focusing on the school district as 
a whole, the number of majority-black schools is only about 
five percent of the schools within the district or ten percent if 
plaintiffs' measure of racial identifiability (more than 40% 
black) is used.20

dispute the accuracy of this information or their counsels' awareness 
of it.

19If this Court concludes that Defendants have the burden of 
establishing that the racial imbalance at these schools is not the result 
of prior de jure conduct, then the parties are entitled to an evidentiary 
hearing on this issue. By prior stipulation, that issue was not 
addressed at the hearings held thus far on plaintiffs' amended motion 
to enforce.

20Defendants presented testimony that 14 of the 16 schools 
identified by plaintiffs as racially identifiable schools actually attract



300a

*13 Lastly, Plaintiffs’ lack of objection to student 
attendance patterns in Defendants' Annual Reports prior to 1994 
cannot be excused on the basis that the affirmative obligation to 
eradicate the effects of the prior de jure segregation lies solely 
with Defendants. Plaintiffs have been and continue to be active 
participants in this case since its inception.

Having entered a comprehensive order to desegregate 
the public schools of Hillsborough County, this Court has relied 
on both Plaintiffs and Defendants to monitor compliance with 
the desegregation order.21 The position which Plaintiffs assert 
in the amended motion to enforce is inconsistent with plaintiffs' 
prior representations to this Court that the public school system 
was desegregated and plaintiffs' failure to object when these 
eight schools crossed the 50% threshold a number o f years ago 
and became maj ority black schools. As discussed subsequently, 
plaintiffs also did not voice a similar objection when provided 
an opportunity to review and comment on the Task Force Plan 
adopted by this Court in its 1991 Consent Order.

Plaintiffs have not shown that Defendants are in 
violation o f this Court's 1971 Order.

B. The 1991 Consent Order

Background

a great deal more financial assistance as "Chapter 1" schools than 
other Hillsborough County schools. (T2-88-90)

2‘Defendants also point out that plaintiffs' current claim for 
attorney fees includes fees for "monitoring" the annual reports, 
among other things and that one of plaintiffs' attorneys testified that 
for each of the seventeen years, he "had to do the work necessary to 
determine whether the installment of the School Board's plan for the 
next succeeding year . . . moved forward, marked time, or moved 
backward." (doc. 689 p. 9 n. 2).



301a

Under the plan in existence prior to the Court's 1991 
Consent Order, single grade centers (consisting of sixth or 
seventh grade) bridged the transition from elementary school to 
junior high school. The single grade centers were created under 
the original desegregation plan.

Implementation of the middle school concept involved 
creating attendance "clusters" which grouped elementary and 
middle schools around the high school which those students 
would ultimately attend. One of the major objectives of the 
cluster plan was to have neighborhood schools while 
maintaining a desegregated school system, among other goals. 
(T2-80; Task Force Report, p. 10-11)

The cluster plan reduced cross-busing for students in the 
inner-city as well as the suburbs and utilized intra-cluster busing 
and magnet school busing as additional alternatives for 
desegregating the school system. (Task Force Report, p. 14).

The school district held extensive public meetings and 
hearings on the middle school plan which addressed, among 
other things, proposed attendance boundaries for the clusters. 
As a result of these meetings, as well as discussions with 
plaintiffs and their representatives, changes were made. For 
example, West Tampa parents at one hearing wanted West 
Tampa to be included in the Jefferson Cluster instead of the 
Plant Cluster and the school board agreed to that modification. 
(T2-60-68).

The middle school concept affected all schools within 
Hillsborough County, not simply the grades 5 through 9, 
because it created attendance clusters which did not exist 
previously. Thus, the Court recognized that implementation of 
the middle school grade structure necessarily required 
"modification of the Court's Orders in this action." Consent 
Order, p. 1.



302a

*14 Designing the clusters required altering the 
attendance zones for some schools because there was not a 
perfect geographic fit for all the clusters. Ideally, each high 
school boundary would have included the necessary number of 
middle schools and elementary schools needed for each cluster. 
However, this was not the case with every school. When 
boundaries had to be changed, the School Board staff 
considered factors such as distances, enrollments, capacity and 
also the impact of the boundary change on racial enrollments 
Whenever possible, staff tried to bring all the schools closer to 
the 20/80 ratio. (T2- 97-101) The School Board's 
desegregation monitor, Dr. Miliziano, terms the 16 schools at 
issue in plaintiffs’ motion as "anomalies". (T2-101-102)

Disputed Issues of Interpretation

Plaintiffs contend that the 1991 Consent Order did not 
modify any provisions of the 1971 Order which were not 
explicitly addressed and required that there not be any schools 
where the percentage of black students exceeded 40%.

This position is contrary to the parties' conduct at the 
time the Task Force Report was under consideration. Dr. 
Stevens was retained as an educational expert by Plaintiffs to 
specifically review the middle school plan and determine 
whether it was consonant with the objectives of desegregation 
and to determine whether it imposed an unfair burden on the 
plaintiff class of pupils. (T1 -98). There were several meetings 
and discussions between plaintiffs and defendants concerning 
various aspects of the proposal.

One concern of plaintiffs was that inner-city 
predominately black children were not assigned to a single 
cluster. As a result, an additional cluster was added to the plan 
for a downtown high school. (T2-65-66). There were certain 
other items that plaintiffs were adamant about including in the



303a

middle school plan, including retaining one elementary school 
(Lockhart) in the inner city that was not a magnet school. (T2- 
77-79). Defendants incorporated this request into the plan. 
(T2-80). Plaintiffs also argued for a 40/60 instead of 20/80 
black/white ratio for magnet schools and this request was also 
incorporated into the plan. (T2-83-85)

At no time during the negotiations over the middle 
school plan did Dr. Stevens or counsel for plaintiffs raise a 
concern about the projected attendance patterns reflected for 
any of the sixteen schools which are identified as racially 
identifiable schools, including the eight majority black schools, 
in plaintiffs'amended motion to enforce. (T2-82-83).22 Nor did 
plaintiffs argue, as they do now, that defendants needed to 
adjust the racial balance at these schools to insure that black 
student enrollments did not exceed 40%.

The 1991 Consent Order states, in pertinent part:

The report to be filed annually by April 15 shall also 
include a description of changes in facility utilization, 
student attendance, grade structure, or curriculum, etc. 
that are proposed to be implemented in the succeeding 
school year, and sufficient information relating to such

22Five of the eight schools identified in plaintiffs motion 
were projected to have majority-black students under the cluster plan: 
Robles (76%), Edison (64%), Sulphur Springs (59%), Oak Park 
(58%), and Graham (58%). The others were: Cleveland (50%), 
Foster (39%), and Van Buren (27%) Seven of these schools are 
elementary schools; Van Buren is a junior high school. Also, two of 
the eight schools are each assigned to different clusters. Cleveland 
and Sulphur Springs are both in the Chamberlain Cluster; Whitter 
and Van Buren are both in the Northeast Tampa SHS Cluster; and 
Graham and Foster are both in the Hillsborough Cluster. (Task Force 
Report, p. 48-102)



304a

changes to permit the Court to determine their impact 
upon the maintenance of desegregated schools in 
Hillsborough County and the elimination of any 
lingering vestiges of prior discrimination from the 
school system. The Court recognizes and anticipates 
that there will be modifications each year o f  the 
projected student assignment patterns contained in 
Appendix I  to the Task Force Report to take account o f  
demographic or other changes that occur. In making 
such modifications, the school district should seek to 
minimize (to the extent practicable) the number o f  
schools which deviate from the system-wide student 
enrollment ratios (see Task Force Report, at p. 14).

*15 Consent Order at 5-6 (emphasis added).

The pertinent section of the Task Force Report cited 
above is:

The number of schools reflecting a ten or higher percent 
race ratio variance will increase from 36 to 46. The 
plan also increases the number of schools from 56 to 72 
that will have an almost perfectly balanced race ratio 
with a student variance of five percent or less from the 
recommended 20/80% ratio.

With respect to the portion of the 1991 Consent Order 
highlighted above, Plaintiffs state that Defendants have a duty 
to minimize deviation from the race ratios (specified in the 
1971 Order), any time new attendance zones under the cluster 
plan are implemented.

Defendants contend that the duty is triggered only when 
the zones are implemented in a manner that deviates from 
(modifies) the zones proposed in the Task Force Report. 
However, Defendants state that the duty is not triggered even as



305a

to the Jefferson Cluster because it is being implemented in 
"relevant respects" as it was projected in the Task Force Report.

The Joint Pre-Evidentiary Hearing Statement (doc. 657) 
sets out the parties' respective positions.

As the Court knows, the 1991 Consent Order was 
entered pursuant to the stipulation of the parties. At the 
evidentiary hearing, plaintiffs' attorneys acknowledged that they 
drafted the Consent Order. (Tl-63)

The Consent Order clearly provides that in making 
modifications to the projected student attendance patterns, the 
school district should seek to minimize, to the extent 
practicable, the number of schools which deviate from the 
system-wide student enrollment ratios. This interpretation, 
which has been followed by Defendants, is supported by the 
plain language of the underlined portion of the Consent Order 
read in context with the prior sentence.

Plaintiffs contend that each time a cluster is 
implemented, Defendants have a duty, as to each school in the 
cluster, to minimize the extent of any deviations from the 
system-wide ratios to the extent practicable regardless of 
whether any modifications are proposed which differ from the 
cluster plan approved by the Court in 1991.

This position is not only contrary to the language of the 
Consent Order which plaintiffs drafted, but it also overlooks the 
substantial planning which went into the Task Force Report 
approved by the court. The student attendance zones were 
mapped out for each cluster with street boundaries provided in 
nearly every case, including satellite zones. (Task Force 
Report, p. 40,43,46,49-50,53-56,59-61,64-65,68,71-72,75- 
76, 79-80, 83-86, 89-90, 93, 96-97, 100, 103-104).



306a

The cluster plan and proposed attendance zones received 
extensive public hearings before being finalized and approved 
by the school district. Plaintiffs were involved in this process. 
Plaintiffs were also provided a copy of the final Task Force 
Report and had ample time (more than two months) to present 
suggestions or objections concerning the student attendance 
zones proposed for each cluster. Plaintiffs, through Dr. 
Stevens, had some concerns and made a number of suggestions 
which were implemented by the school district. (Tl-99- 102) 
However, it is undisputed that none o f these suggestions 
involved altering the student attendance zones for those schools 
which were projected to have black student enrollments of 40% 
or more, the very situation addressed in plaintiffs' instant 
motion. (Tl-140; T2-103)

*16 One of the objectives of the Task Force Plan was 
minimizing the number of racially identifiable schools and 
racial disparity in transportation of students. (T2-93) In 
accomplishing this goal, school board officials proceeded on the 
assumption that it was better to bring more schools in line with 
the district-wide racial enrollment even if that meant that the 
racial imbalance might increase at certain schools.

This approach certainly had plaintiffs' implicit, if  not 
express, endorsement because the Task Force Plan was 
incorporated into the Consent Order which the parties submitted 
to this Court.

Thus, the Task Force Report stated that under the plan, 
the "number o f schools reflecting a ten or higher percent race 
ratio variance will increase from 36 to 46" while the plan "also 
increases the number of schools from 56 to 72 that will have an 
almost perfectly balanced race ratio with a student variance of 
five percent or less from the recommended 20/80% ratio." 
(Task Force Report, p. 14).



307a

On the next issue of the interpretation of the Consent 
Order, defendants' argument—that there may be de minimis 
modifications to the cluster plan which do not require 
consideration of the effect on race ratios—is not supported by 
the language of the order. Thus, the modifications to the 
Jefferson Cluster proposed in 1993 required Defendants to 
consider the effect of the modifications on the student 
attendance patterns under certain circumstances.

The Court must next resolve the parties' disagreement 
over the nature and scope of Defendants' obligations. 
Defendants are directed that "[i]n making such modifications, 
the school district should seek to minimize (to the extent 
practicable) the number o f schools which deviate from the 
system-wide student enrollment ratios (see Task Force Report, 
at p. 14)." Consent Order at 5-6 (emphasis added).

Plaintiffs argue that such language is to be read as 
requiring the School Board to minimize the extent to which any 
school deviates from the system-wide ratio, even if that action 
would increase the extent of the deviation of another school in 
the cluster, so long as neither school becomes "racially 
identifiable". Defendants contend that they are only required to 
take actions that minimize the number of schools which deviate 
from the system-wide ratio. Alternatively, Defendants contend 
that even if the language is read as speaking to the magnitude of 
the deviation, it does not require reduction of deviation at one 
school if an increase in the extent of deviation from the system- 
wide ratio would result at another school.

Plaintiffs' interpretation is once again contrary to the 
clear language of the provision which they drafted. Moreover, 
because a consent order is to be construed for enforcement 
purposes basically as a contract, reliance upon certain aids to 
construction is proper, as with any other contract. United States 
v. ITT Continental Baking Co., 420 U.S. 223 (1975). Therefore,



308a

even if the language were ambiguous, the Court, in applying 
well-established rules of construction, would construe the 
ambiguity against Plaintiffs as the drafters of the proposed 
Consent Order.

*17 Thus, Defendants' duty under the 1991 Consent 
Order as to attendance zone modifications is to minimize the 
number of schools that deviate from the 20/80% race ratios, not 
the extent to which the schools deviate. Plaintiffs not only 
agreed to this, but drafted the Consent Order this way.

In fact, prior to the parties' disagreement over 
implementation of the Jefferson Cluster, Dr. Stevens met with 
School Board representatives concerning a staff proposal to 
modify another middle school cluster, the East Bay Cluster.

Defendants proposed to convert one of the new 
elementary schools, B.L. Bing, to a middle school instead of 
Progress Village due to the extremely high construction bids for 
converting Progress Village to a middle school. Dr. Stevens 
objected to the plan because it would result in more schools 
deviating from the 20/80 ratio than agreed upon in the Task 
Force Report. Because of this opposition, the School Board 
decided not to seek court approval for the modification which 
would have resulted in a savings of approximately six or seven 
million dollars in construction costs. (T2-142-145).

This testimony is significant because it demonstrates 
that plaintiffs' current interpretation of the "duty to minimize" 
language in the 1991 Consent Order is of recent vintage and is 
contrary to the parties' prior dealings in discussing proposed 
modifications to the Task Force Plan.

There is no evidence that the modifications to the 
Jefferson Cluster Plan proposed for the 1994-1995 school year 
increased the number of schools within the cluster which



309a

deviated from the district-wide 20/80 norm set out in the 1971 
Order and adopted by reference in the 1991 Consent Order.

West Tampa Elementary

Even if plaintiffs' interpretation of the minimization duty 
is correct, there is no "practicable" method to reduce the black 
enrollment percentage at West Tampa Elementary School.

Because the Jefferson Cluster was implemented sooner 
than projected, there was no middle school ready for all of the 
sixth-graders. Defendants proposed to retain some of the sixth- 
graders—those who walked to school~at West Tampa while 
sending those who the 1994 school year until the middle school 
that the students were assigned to was ready. Those students 
who walked to school were mostly black and those who were 
bused were mostly white. (Tl-75; 182-183).

The main reason for the increased number of black 
students at West Tampa since projected in 1991 is the special 
assignments granted parents who have after- school care 
arrangements for their children nearby. Many of the West 
Tampa parents work and utilize the boys’ and girls' club within 
the attendance area. (T2-128)

Plaintiffs' consultant, Dr. Stevens, conceded that without 
these special assignments, the black student population at West 
Tampa would be about 41%. (T2-113) Dr. Stevens proposes 
denying special assignment requests, including those made on 
hardship grounds, if necessary to maintain black enrollments 
below 40%. As previously stated, this would violate this 
Court's 1971 Order directing that such requests be considered 
without regard to race unless made for the purpose of avoiding 
desegregation.



310a

*18 Also, Dr. Stevens' plan to alter the attendance 
zones for West Tampa would involve a segment of students 
crossing a major four-lane highway (Columbus Drive) to walk 
to school, which would require transporting those students.23 
Even then, some students would elect to walk to school and 
crossing Columbus Drive would pose a significant hazard to 
them. In addition, a satellite which Dr. Stevens proposes to use 
is already assigned to another cluster. (T2-129-137; 172-175; 
200).

For these reasons alone, plaintiffs' alternative to the 
temporary measure of leaving some sixth-graders at West 
Tampa is not practicable, even if the 1991 Consent Order did 
impose a duty to minimize the extent of deviation at that school 
from the system-wide ratio.

While Defendants have a constitutional obligation to 
render decisions that further desegregation, see Harris, 968 F.2d 
at 1094-95, "[i]t is the maximum practicable desegregation that 
the lawrequires." St ell, 860 F. Supp. at 1580 (citation omitted).

Plaintiffs have not shown that Defendants are in 
violation o f the 1991 Consent Order. The Third Annual Report 
with the proposed modifications to the Jefferson Cluster should 
be approved.

Future Cluster Implementations Beyond 1995-1996

23The proposal which Dr. Stevens presented at the 
evidentiary hearing was not the same suggestion that he made when 
raising his concerns with Dr. Miliziano and other school board staff 
almost a year earlier prior to the filing of the Third Annual Report. 
(Tl-196).



311a

The eight schools addressed in plaintiffs' motion with 
black student enrollments over 50% are: Robles, Edison, 
Sulphur Springs, Oak Park, Graham, Cleveland, Foster, and 
Van Buren. All but the last three were projected to have black 
student enrollments over 50% when the Task Force Plan was 
adopted.24

The clusters these schools belong to have not been 
implemented yet by the School Board. Under the 1991 Consent 
Order Defendants' obligations to adjust the race ratios at these 
schools do not arise unless there are modifications to clusters to 
which these schools are assigned and those modifications 
increase the number o f schools which deviate from the system- 
wide ratio.

The Third Annual Report submitted on April 15, 1994 
indicates that the percentage of black students attending these 
schools is higher than proj ected in 1991, and significantly so in 
some cases. For example, Robles was projected to have 76% 
black students and had 90% black students in 1993. Edison 
(64%) had 74%. Sulphur Springs (59%) had 70%. Oak Park 
(58%) had 66%. Graham (58%) had 63%. Cleveland (50%) 
had 59%. Foster (39%) had 57%. Whitter (40%) had 56%, and 
Van Buren (27%) had 50%. The Fourth Annual Report 
submitted two months ago shows additional increases in the 
percentage of black students at these schools.

These statistics may persuade this Court that a 
prospective modification of the 1991 Consent Order is in order, 
particularly because it was acknowledged in the Task Force 
Report that planning beyond the 1995-1996 year "must be 
viewed as tentative because more information is needed to

24See footnote 22, supra.



312a

make accurate predictions." 1991 Consent Order (citing Task 
Force Report, p. 26).

Although the motion to enforce should be denied 
because there have been no violations of the Court's orders, this 
Court may wish to consider whether, commencing with the 
1996-1997 school year, it is reasonable to require Defendants, 
when implementing a particular cluster or clusters on an annual 
basis, to establish that as to any school within the particular 
cluster having majority-black student enrollments (or whatever 
measure this Court may identify) that the racial imbalance is the 
result of demographic or other factors other than official school 
board policy. If the Defendants are able to meet this burden, 
consistent with the Freeman decision, then the inquiry would 
end.25 If Defendants were unable to meet this burden, then they 
would have to show that the schools in question have been 
desegregated to the maximum extent practicable.

*19 If the Court were inclined to consider such action, 
it would be best to impose on the parties the requirement of a 
good faith effort to resolve any disputed factual issues, 
including use of mediation. The Court may also wish to

25For example, Plaintiffs point to Robles as the paradigm of 
a racially identifiable school. While the statistics concerning racial 
enrollments are undisputed, Defendants point out that Robles has not 
had any boundary changes since 1971. Despite acknowledging this 
fact, plaintiffs' consultant, Dr. Stevens, was unwilling to agree that 
demographic changes in the residential area surrounding the school 
are responsible for the current racial enrollments. Dr. Stevens has 
not done any studies on the practicability of readjusting the student 
enrollment at that school (or any of the other schools identified in 
plaintiffs' motion) except for West Tampa. However, he suggested 
that "part of the solution may lie in an out-of cluster assignment" 
when it comes time to bring on line the cluster to which Robles is 
assigned. (Tl-215-220).



313a

consider appointing an outside expert to advise the Court on 
issues relating to Defendants' desegregation efforts. As a result 
of the amended motion to enforce, it may be that the parties' 
respective desegregation experts have become somewhat 
entrenched and proprietary in their positions.

At some point in time, the Court will have to determine 
whether the school system of Hillsborough County has achieved 
unitary status.26 The issues the Court will be called on to decide 
at that time arguably may be more focused and easier to resolve 
if these measures are implemented.

However, it must be emphasized that the issues of 
modifying the 1991 Consent Order for future cluster 
implementations and appointing an independent monitor or 
desegregation expert were not addressed at the evidentiary 
hearing and are offered only as additional factors the Court may 
wish to consider.

III. CONCLUSION

For the foregoing reasons, I recommend that Plaintiffs' 
Amended Motion to Enforce Court Order and Consent Order 
and for Further Relief (doc. 601) be denied and the Third 
Annual Report filed by Defendants in 1994 be approved.

NOTICE TO PARTIES

Failure to file and serve written objections to the 
proposed findings and recommendations contained in this report 
within ten (10) days from the date it is served on the parties 
shall bar an aggrieved party from a de novo determination by

26At closing argument, Defendants' counsel indicated that the 
a motion to determine unitary status had not been filed because the 
School Board had not made that request.



314a

the District Court of issues covered in the report, and shall bar 
the party from attacking on appeal factual findings in the report 
accepted or adopted on appeal by the District Court except upon 
grounds of plain error or manifest injustice. 28 U.S.C. § 
636(b)(1)(C); Local Rule 6.02; Nettles v. Wainwright, 677 F.2d 
404 (5th Cir.1982) (en banc).