He Takes on Blacks and Whites Alike - 'I've Been the Prodigal Son' Herald Profile on Howard Clement News Clipping
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September 25, 1977
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Brief Collection, LDF Court Filings. Mills v. Polk County, FL School Board Brief for Appellants, 1992. 837c05ca-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a9843282-4882-40d1-939e-5fa3ec8c009d/mills-v-polk-county-fl-school-board-brief-for-appellants. Accessed May 22, 2025.
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IN THE UNITED STATES COURT OF- APPEALS
FOR THE ELEVENTH CIRCUIT
NO. 92-2832
HERMAN HENRY MILLS, JR., et al.,
Plaintiffs-Appellants
and
UNITED STATES OF AMERICA,
Plaintiff-Intervenor-Appellee
vs.
THE SCHOOL BOARD OF POLK COUNTY, FLORIDA, et a l.,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Florida, Tampa Division
BRIEF FOR APPELLANTS
NORRIS D. WOOLFORK, III
Suite 2
1325 West Colonial Drive
Orlando, Florida 32804
(407) 872-1205
LARRY R. JACKSON
Suite 220-B
101 West Main Street
P. O. Box 3668
Lakeland, Florida 33602-3668
(813) 682-3111
JULIUS L. CHAMBERS
NORMAN J. CHACHKIN
99 Hudson Street, 16th floor
New York, New York 10013
(212) 219-1900
Attorneys for Appellants
NO. 92-2832 MILLS v. SCHOOL BOARD OF POLK COUNTY
The undersigned counsel certifies that the following named
persons have an interest in the outcome of this case:
ALLISON ALEXANDER, plaintiff in related, removed and remanded
state court action
LYDIA ANN ATKINS, a minor, by REV. JOEL E. ATKINS, her father
and next friend
ROBERT ATKINS, a minor, by REV. JOEL E. ATKINS, his father and
next friend
WILLIAM STERLING ATKINS, a minor, by REV. JOEL E. ATKINS, his
father and next friend
HARRIET P. BAKER, plaintiff in related, removed and remanded
state court action
MICHAEL T. BAKER, plaintiff in related, removed and remanded
state court action
SANDRA LYNN BEBER, attorney for the United States of America
CLARENCE A. BOSWELL, JR. , attorney for the School Board of
Polk County, Florida, et al.
BOSWELL, STIDHAM, PURCELL, CONNER, WILSON & BREWER, P.A. ,
attorneys for the School Board of Polk County, Florida,
in related, removed and remanded state court action
DAVID S. BRALOW, attorney for Lakeland Ledger Publishing
Corporation, applicant for intervention
DEBORAH L. BRYANT, a minor, by MRS. ALEX JACK BRYANT, her
mother and next friend
JACQUELINE G. BRYANT, a minor, by MRS. ALEX JACK BRYANT, her
mother and next friend
JANICE PAULETTE BURNEY, a minor, by MRS. WILLIAM BURNEY, her
mother and next friend
C-l of 5
NO. 92-2832 MILLS V. SCHOOL BOARD OF POLK COUNTY
WILLIAM BURNEY, a minor, by MRS. WILLIAM BURNEY, his mother
and next friend
DARLENE CARTER, plaintiff in related, removed and remanded
state court action
DONALD CARTER, plaintiff in related, removed and remanded
state court action
NORMAN J. CHACHKIN, attorney for plaintiffs
JULIUS L. CHAMBERS, attorney for plaintiffs
J.J. CORBETT, Member of the School Board of Polk County,
Florida
JOHN R. DUNNE, Assistant Attorney General, attorney for the
United States of America
JAMES W. EDWARDS, plaintiff in related, removed and remanded
state court action
FLOURNOY DEVELOPMENT COMPANY, a Georgia Corporation, plaintiff
in related, removed and remanded state court action
ROBERT W. GENZMAN, United States Attorney for the Middle
District of Florida, attorney for United States of
America
BEULAH HOBBS, a minor, by HATTIE HOBBS, her mother and next
friend
HON. WILLIAM TERRELL HODGES, United States District Judge
DENNIS INGRAM, plaintiff in related, removed and remanded
state court action
LARRY R. JACKSON, attorney for plaintiffs
HOPE JACKSON-JINES, plaintiff in related, removed and remanded
state court action
AMOS JOHNSON, a minor, by CORA JOHNSON, her mother and next
friend
C-2 of 5
NO. 92-2832 MILLS V. SCHOOL BOARD OF POLK COUNTY
FRANCES LULA JOHNSON, a minor, by CORA JOHNSON, her mother and
next friend
LINK JOHNSON, JR., a minor, by LINK JOHNSON, SR., his father
and next friend
MICHAEL KEENEY, plaintiff in related, removed and remanded
state court action
THERESA A. KEENEY, plaintiff in related, removed and remanded
state court action
MARGUERITE G. KENNEDY, plaintiff in related, removed and
remanded state court action
MICHAEL KENNEDY, plaintiff in related, removed and remanded
state court action
VERNON HARRIS KINSLER, a minor, by MRS. FRANK KINSLER, his
mother and next friend
LAKELAND LEDGER PUBLISHING CORPORATION, applicant for
intervention
LAMBERSON, ALICE, plaintiff in related, removed and remanded
state court action
ARVIN J. LANGE, JR., plaintiff in related, removed and
remanded state court action
SUE LANGE, plaintiff in related, removed and remanded state
court action
S. LUKER, plaintiff in related, removed and remanded state
court action
HON. STEVEN D. MERRYDAY, United States District Judge
HERMAN HENRY MILLS, JR., a minor, by ALTHEA MILLS, his mother
and next friend
DAN MOODY, Chairman of the School Board of Polk County,
Florida
JOHN R. MOORE, attorney for the United States of America
C-3 of 5
NO. 92-2832 MILLS V. SCHOOL BOARD OF POLK COUNTY
NEW YORK TIMES COMPANY, Parent Company of LAKELAND LEDGER
PUBLISHING CORPORATION, applicant for intervention
NEAL L. O'TOOLE, attorney for interested parties
PADDOCK CLUB LAKELAND, a limited partnership, plaintiff in
related, removed and remanded state court action
PADDOCK CLUB LAKELAND, PHASE II, a limited partnership,
plaintiff in related, removed and remanded state court
action
PARENTS FOR FAIRNESS AND RESPONSIBILITY IN EDUCATION, an
unincorporated association, plaintiff in related, removed
and remanded state court action
CATHY RASTATTER, plaintiff in related, removed and remanded
state court action
TIMOTHY RASTATTER, plaintiff in related, removed and remanded
state court action
SCHOOL BOARD OF POLK COUNTY, Florida (formerly the Board of
Public Instruction of Polk County, Florida)
NANCY SIMMONS, Member of the School Board of Polk County,
Florida
JOHN A. STEWART, Superintendent of Schools of Polk County,
Florida
JONATHAN D. STIDHAM, attorney for School Board of Polk County
in related, removed and remanded state court action
CONSTANCE LAVERNE SWANIGAN, a minor, by MRS. MILTON SWANIGAN,
her mother and next friend
MILTON SWANIGAN, JR., a minor, by MRS. MILTON SWANIGAN, his
mother and next friend
DEBORAH JOYCE SWANIGAN, a minor, by MRS. MILTON SWANIGAN, her
mother and next friend
GREGG D. THOMAS, attorney for Lakeland Ledger Publishing
Corporation, applicant for intervention
C-4 of 5
NO. 92-2832 MILLS V. SCHOOL BOARD OF POLK COUNTY
UNITED STATES OF AMERICA, plaintiff-intervenor
JACQUELINE UTZ, plaintiff in related, removed and remanded
state court action
CARLTON M. WALKER, plaintiff in related, removed and remanded
state court action
MARJORIE A. WALKER, plaintiff in related, removed and remanded
state court action
CLIFFORD HOBBS WEEKS, a minor by ELLA HOBBS GREENE, his
guardian and next friend
ANDREA WHITELEY, Member of the School Board of Polk County,
Florida
RUBIE WILCOX, Member of the School Board of Polk County,
Florida
NAPOLEON B. WILLIAMS, JR., attorney for plaintiffs
JOAN S. WILSON, plaintiff in related, removed and remanded
state court action
ROGER E. WILSON, plaintiff in related, removed and remanded
state court action
NORRIS D. WOOLFORK, III, attorney for plaintiffs
The class of Negro children and their parents in Polk County,
Florida
C-5 of 5
Statement Regarding Oral Argument
This appeal is prosecuted from an order entered on the basis
of stipulated facts and the agreement of all parties that a hearing
in the district court was not necessary. Although only recently
assigned to this case, the district judge who entered the order had
previously approved a comprehensive remedial decree — jointly
agreed to by all parties — and thus had some familiarity with the
matter at the time the dispute arose that is the subject of this
appeal. Because the panel assigned to this appeal may not have
that same degree of knowledge about the case, the Court may wish to
hear oral argument in the matter.
i
Certificate of Interested Persons ...................... C_1
Statement Regarding Oral Argument ...................... i
Table of A u t h o r i t i e s ................................... iii
Statement of Jurisdiction .............................. v
Statement of Issues Presented for Review ............. 1
Statement of the C a s e ................................... 2
A. Background of the l i t i g a t i o n ................... 2
B. The present dispute.............................. 5
1. The agreed o r d e r .............................. 5
2. Elementary school rezoning in the Bartow area 7
3. Out-of-zone transfers ........................ 11
4. Request for judicial determination ........... 12
C. Standard of r e v i e w .............................. 15
Summary of Argument..................................... 16
ARGUMENT---
Introduction ......................................... 17
I The Elementary School Zoning Plan Adopted By The
Polk County School Board Should Have Been Rejected
By The District Court In Light of Available, Feasible
Alternatives That Would Achieve Greater Desegregation 18
II The District Court Erred In Modifying The Agreed Order
Over The Objections Of Two Of The Three Signatory
P a r t i e s ........................................... 30
III Guidance From This Court Is Necessary For The Proper
Conduct Of Further Proceedings In This Action; The
Certainty Of Those Proceedings Prevents This Appeal
From Being Rendered M o o t .......................... 34
C o n c l u s i o n ............................................. 38
Certificate of Service ................................ 38
Table of Contents _ Page
- ii -
Albemarle Paper Company v. Moody, 422 U.S. 405 (1975) 15
Alexander v. Holmes County Board of Education, 396 U.S.
19 (1969) ......................................... 28n
Board of Education of Oklahoma City v. Dowell, ___ U.S.
___, 112 L. Ed. 2d 715 (1991) ................... 18
Table of Authorities- Page
Cases:
Carter v. West Feliciana Parish School Board, 396 U.S.
290 (1970)......................................... 28n
*Davis v. Board of School Commissioners of Mobile, 402
U.S. 1 (1971) ................................... 21, 23, 24n
Freeman v. Pitts, ___ U.S. ___, 118 L. Ed. 2d 108 (1992) 18
Graves v. Walton County Board of Education, 686 F.2d
1135 (5th Cir. Unit B 1982) 2n
Green v. County School Board of New Kent County, 391
U.S. 430 (1968) ................................. 21
*Harrington v. Colquitt County Board of Education, 460
F.2d 193 (5th Cir.), cert, denied, 409 U.S. 915
(1972)............................................. 22
Harris v. Crenshaw County Board of Education, 968 F.2d
1090 (11th Cir. 1992) 15
*Henry v. Clarksdale Municipal Separate School District,
406 F.2d 682 (5th Cir.), cert, denied, 396 U.S.
940 (1969)......................................... 24
International Organization of Masters, Mates & Pilots
v. Brown, 498 U.S. ___, 112 L. Ed. 2d 991 (1991) 36
*Jacksonville Branch, NAACP v. Duval County School
Board, 883 F.2d 945 (11th Cir. 1 9 8 9 ) ............ 25-26
Kadrmas v. Dickinson Public Schools, 487 U.S. 450
(1988)............................................. 36
Kelley v. Metropolitan County Board of Education, 463
F.2d 732 (6th Cir.), cert, denied, 409 U.S. 1001
(1972)............................................. 2n
iii
Table of Authorities- Page
Cases (continued):
Keyes v. School District No. 1, Denver, 303 F. Supp.
279, supplemental findings, 303 F. Supp. 289
(D. Colo. 1969), aff'd, 445 F.2d 990 (10th Cir.
1971) , vacated and remanded on other grounds,
413 U.S. 189 (1973) 25
Lee v. Anniston City School System, 737 F.2d 952 (11th
Cir. 1 9 8 4 ) ......................................... 15, 23
Lee v. Macon County Board of Education, 616 F.2d 805
(5th Cir. 1980) 29
Lee v. Macon County Board of Education, 448 F.2d 746
(5th Cir. 1971) 25
Lockett v. Muscogee County Board of Education, ___ F.2d
___ [No. 92-8087] (11th Cir. Nov. 2, 1992) . . . . 2n
♦Mills v. Polk County Board of Public Instruction, 575
F. 2d 1146 (5th Cir. 1978) ........................ 3n, 30
Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass.), aff'd
sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st
Cir. 1974), cert, denied, 421 U.S. 963 (1975) . . 25
Northcross v. Board of Education of Memphis, 333 F.2d
661 (6th Cir. 2964) .............................. 24
*Rufo v. Inmates of the Suffolk County Jail, ___ U.S.
___, 116 L. Ed. 2d 867 ( 1 9 9 2 ) .................. 2, 32, 33
♦Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) ............................ 21, 22n, 23
United States v. Board of Public Instruction of Polk
County, 395 F.2d 366 (5th Cir. 1 9 6 8 ) ............. 3
United States v. Burr, 25 F. Cas. 30 (C.C. Va. 1807)
(No. 14692) ....................................... 15
United States v. CRUCIAL, 722 F.2d 1182 (5th Cir. 1983) 29
♦United States v. DeSoto Parish School Board, 574 F.2d
804 (5th Cir.), cert, denied, 439 U.S. 982 (1978) 30
IV
Table of Authorities- Page
United States v. Lawrence County School District, 799
F. 2d 1031 (5th Cir. 1986) ........................ 23
United States v. Lowndes County Board of Education, 878
F . 2d 1301 (11th Cir. 1 9 8 9 ) ........................ 22n
United States v. Swift & Company, 286 U.S. 106 (1932) . 32
Valley v. Rapides Parish School Board, 646 F .2d 925
(5th Cir. 1981), cert, denied, 455 U.S. 939 (1982) 29
Cases (continued):
Statutes and Rules:
28 U.S.C. § 1292 (a) (1) v
28 U.S.C. § 1343 ( 3 ) ..................................... v
42 U.S.C. § 1983 V
Fed. R. Civ. P. 7 2 ( b ) ................................... 28n
Statement of Jurisdiction
This suit was brought pursuant to 42 U.S.C. § 1983 to redress
the deprivation of the Fourteenth Amendment rights of the plaintiff
class that were being denied by the maintenance of a racially
segregated public school system. The district court accordingly
has jurisdiction of the action under 28 U.S.C. § 1343(3).
This appeal was taken from the August 17, 1992 order of the
district court which modified prior injunctive orders governing
pupil assignment in the defendant school system, by the timely
filing of a Notice of Appeal on August 20, 1992. This Court
therefore has jurisdiction of this appeal pursuant to 28 U.S.C. §
1292 (a) (1) .
v
IN THE UNITED STATES COURT OF- APPEALS
FOR THE ELEVENTH CIRCUIT
NO. 92-2832
HERMAN HENRY MILLS, JR., et al.,
Plaintiffs-Appellants,
and
UNITED STATES OF AMERICA,
Plaintiff-Intervenor-Appellee,
vs.
THE SCHOOL BOARD OF POLK COUNTY, FLORIDA, et al. ,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Florida, Tampa Division * 1 2
BRIEF FOR APPELLANTS
Statement of the Issues
This appeal presents two legal issues:
1. Did the district court err in approving the plan of
elementary school rezoning for the Bartow area adopted by the
School Board of Polk County, which creates racially identifiable
schools through systematic overcrowding of some facilities and
under-utilization of other buildings?
2. Did the district court err in modifying a consent order
over the objections of two signatory parties in the absence of the
showing of changed circumstances required by Rufo v. Inmates o f the Suffolk
County Jail, ___ U.S. ___, 116 L. Ed. 2d 867 (1992)?
Statement of the Case
A. Background o f the litigation
This school desegregation lawsuit was filed in 1963 as a class
action on behalf of black children and their parents residing in
Polk County, Florida. On January 15, 1965, the district court made
the following Findings of Fact:
3. The plaintiffs are minor Negro citizens and
residents of Polk County, Florida, and of the United
States. The suit is brought by their respective parents
and next friends.
4. The suit is brought also on behalf of all other
children and parents of Polk County, Florida who are
similarly situated and affected by the complained of
policy, custom, practice and usage. The Court finds that
this suit presents a proper class action under Rule
23(a)(3), Federal Rules of Civil Procedure. Common
questions of law and fact are involved; common grievances
are asserted? common relief is sought for each plaintiff
and each member of the class; and the plaintiffs fairly
and adequately represent the class in whose behalf they
sue.[1]
The case followed the now familiar pattern of proceedings through
freedom-of-choice and ineffective geographic zoning plans;
significantly, in 1968 the former Fifth Circuit required that new 1
1Because this action was filed before the Federal Rules of
Civil Procedure were amended in 1966 to require formal class
certification by separate order, no issue with respect to its
status as a class action arises. See Kelley v. Metropolitan County Board o f
Education, 463 F.2d 732, 743, 748-50 (6th Cir.), cert, denied , 409 U.S.
1001 (1972); c f Lockett v. Muscogee County Board o f Education , ___ F.2d ___
[No. 92-8087] (11th Cir. Nov. 2, 1992); Graves v. Walton County Board o f
Education, 686 F.2d 1135, 1139-40 (5th Cir. Unit B 1982).
2
school construction be consciously carried- out in a manner that
would facilitate rather than impede the elimination of the dual
system. United States v. Board o f Public Instruction o f Polk County, 395 F.2d 366
(5th Cir. 1968).
On May 9, 1969, the district court approved a plan based on
geographic zoning. This plan did not succeed in eliminating
racially identifiable schools from the system. In 1977, following
the United States' 1975 Motion for Further Relief, the district
court approved a plan to "cluster" and reorganize the grade
structures of groups of schools in the Lakeland and Haines City
areas.2 Again, the existence of racially identifiable schools
continued; plaintiffs and the United States suggested that this
occurred in part because the school district allowed white pupils
to transfer out of formerly all-black schools. In May of 1985, the
school board proposed a new zoning plan that would eliminate all
clustering. Following a hearing, the district court denied this
request on September 18, 1985.
In the spring of 1987, the board again requested that the
court permit it to uncluster elementary schools in the Haines City
area and operate under a geographic zoning plan. Both plaintiffs
and the United States opposed the plan; after a hearing on May 29,
2The 1977 order excluded the first and second grades in Haines
City schools from the desegregation process. The predecessor Fifth
Circuit remanded with instructions to modify the plan to include
all grades. Mills v. Polk County Board o f Public Instruction, 575 F.2d 114 6 (5 th
Cir. 1978).
3
1987, the district court denied the board's motion. A period of
negotiations ensued. Ultimately, the parties agreed on a new
geographic zoning plan to be implemented in the Haines City area
commencing in the 1989-90 school year, which was incorporated in a
consent decree approved by the district court on April 15, 1988.3
That decree also required the board to prepare a new desegregation
plan encompassing schools in the Lakeland area of the system.
The board proposed a plan in January, 19894 that was
contingent upon passage of a bond issue, which was defeated. On
April 2, 1991 the board suggested a series of modifications to its
original proposal.5 The United States retained an educational
consultant to evaluate the proposal. On January 2, 1992,
plaintiffs filed a comprehensive Motion for Further Relief,6 which
alleged that implementation of prior court orders had been
compromised by the wholesale allowance of transfers for pupils to
attend schools outside their attendance zones and that in every
area of school system operations (including school construction
3R1 - 4/15/88 Consent Decree. [Because the certified docket
entries forwarded to this Court are not numbered, after
consultation with the Clerk's Office, counsel is citing to the
single volume of pleadings in the Record on Appeal by volume and
date of docket entry and title of pleading or order. To assist the
Court, appellants are reproducing the most important documents infra
as an appendix to this Brief and will provide parallel citations in
the form "Br. App. __a" where appropriate.]
4R1 - 1/17/89 Petition for Modification.
5R1 - 4/4/91 Amendment to Defendant's Petition.
6R1 - 1/2/92 Motion for Further Relief.
4
policies), substantial vestiges of the prior dual system remained
in existence.
B . The present dispute
1. The agreed order. After a period of intensive negotiations
among counsel, on May 6, 1992 all parties jointly submitted to the
district court a detailed proposed order,7 8 addressing the issues
raised in the Motion for Further Relief and attempting to chart a
course through which this litigation can be fully and finally
resolved. In their Joint Motion to Enter Order, the parties noted
that
[a]s recited in the Introduction of the proposed Order,
plaintiffs agree that upon its entry, their recently
filed Motion for Further Relief shall be treated as
having been withdrawn; defendants have agreed to
undertake the measures described in the proposed Order;
and all parties are satisfied that the provisions of the
Order constitute adeguate and legally permissible means
of fulfilling the School Board's obligations in this
matter.[8]
On June 2, 1992, the court requested counsel to eliminate
ambiguities that it felt existed with respect to the parties'
endorsement of the order and to respond to certain questions, which
plaintiffs' counsel did in writing9 and orally at a hearing
conducted before the court on June 5, 1992.10 On July 8, 1992, the
7See Rl - 5/7/92 Joint Motion to Enter Order and Proposed
Order; infra Br. App. la-56a.
8R1 - 5/7/92 Joint Motion to Enter Order - 1-2; infra Br. App.
la-2a.
9R1 - 6/5/92 Response of Plaintiffs to Order of June 2f 1992.
10R2 - 5-6, 25-26, 29-31, 44-46, 54-55.
5
district court adopted the parties' jointly submitted order
[hereinafter referred to as the "agreed order"),11 with one minor
modification to which all parties had consented at the hearing.11 12
The agreed order resolves many issues within its four corners
(for example, by articulating a limited number of grounds for
transfers out of a student's attendance zone). In other instances,
it establishes time schedules for resolution of the remaining
issues (such as redrawing attendance boundaries in specified areas
of the district), committing the parties to consultation and
attempts to avoid further litigation through negotiation. In the
event that negotiation is unsuccessful, the agreed order provides
that any party may seek judicial resolution of the dispute.13
In its ruling adopting the agreed order, the district court
specified a procedure for presenting any such dispute:
In addition, if an apparently intractable dispute
requiring judicial resolution occurs at any time, the
parties are to file, within thirty (30) days, a joint
explanatory report containing a description of the
disagreement, the solutions proposed by each party, the
approximate court time required for any appropriate
hearing to resolve the dispute, and the parties' consent
to appear in court for the appropriate number of days for
resolution of that dispute within sixty (60) days,
including a listing of the days upon which all counsel
are available. Because of the nature of this dispute and
its duration, counsel are regarded as having a heightened
11R1 - 7/9/92 Order - 2-4; infra Br. App. 59a-61a.
12See R2 - 54-55.
13See, e.g., R1 - 5/7/92 Proposed Order - 36-37 f II.B.
(construction) ; infra Br. App. 39a-40a.
6
responsibility to be available and prepared for
resolution of problems in a prompt manner, excepting only
extraordinary commitments elsewhere.1141
The present appeal arises from the parties' first experience
utilizing this procedure.
2. Elementary school rezoning in the Bartow area. One of the subjects on
which the agreed order required future action was the rezoning of
elementary schools in the Bartow region of the school system. The
order provided for the operation, beginning in 1992-93, of a magnet
middle school in Bartow at the Union Academy school14 15 to serve
pupils in the district's South Central administrative area16 17 and
for the redrawing of elementary (now grades K-5) school zones in
that area:
c . Attendance zones for elementary schools in the Bartow area shall be
modified effective for the 1992-93 school year to accommodate the operation o f
magnet schools as provided above, to establish a middle school form o f grade
organization, and to facilitate desegregation. The School Board shall
present a complete written description of such attendance
zones, together with projections of the resulting school
enrollments, to the other parties (through counsel) no
later than June 1, 1992. If either of the other parties
objects to the implementation of the proposed attendance
zones, the parties shall consult and confer in an effort
to resolve their differences. Should agreement not be
reached, the School Board shall not implement any
modifications to which objection has been made without
first obtaining the approval of the Court.*171
14R1 - 7/9/92 Order - 4; infra Br. App. 61a.
15R1 - 5/7/92 Proposed Order - 5 [f I.A.2.]; infra Br. App. 8a.
16R1- 5/7/92 Proposed Order - 7-8 [f I.A.3.C.]; infra Br. App.
lOa-lla.
17R1 - 5/7/92 Proposed Order - 18 [f I.A.9.C.]; infra Br. App.
21a (emphasis added).
7
Shortly after the agreed order was adoptedy18 the school district
forwarded to counsel for plaintiffs and the United States
information concerning the rezoning plan adopted by the school
board.19 The Board's plan originated as a draft proposal prepared
by the staff of the school system for consideration by an advisory
citizens' committee appointed by the school board. This draft
proposal was modified three times: first by the citizens'
committee, then further by the Superintendent, and finally yet
again by the school board.20
All of these versions of the original draft proposal were
based upon the deliberate reconfiguration of previously existing
attendance zones. Under the 1991-92 plan, the Bartow area's 28%-
black elementary school population was assigned in a way that left
Gibbons Street Elementary School, one of the all-black facilities
under the dual system, more than 60% black and another school
within Bartow (Stephens Elementary) 49% black. The various 1992-93
rezoning plans differed in their desegregative effectiveness and in
the extent to which they would utilize existing school facilities
efficiently, as the table infra p. 10 indicates. The plan adopted
by the School Board was projected to create three schools in Bartow
18The agreed order projected that the Bartow rezoning would be
submitted to the other parties by June 1, but the court below did
not approve the order until July 8, 1992.
19See Rl - 7/29/92 Joint Explanatory Report of Disputed Issues
- Exhibits "A," "C"; infra Br. App. 73a-76a, 78a.
20Id.
8
with enrollments just under 50% black — all-with substantial empty
space — and three schools outside Bartow less than 15% black —
all with enrollments exceeding their capacity:
9
COMPARISON OF 1991-92 ENROLLMENTS AND UTILIZATION, AND
PROJECTED 1992-93 ENROLLMENTS AND UTILIZATION UNDER
ALTERNATIVE ZONING PLANS, BARTOW AREA ELEMENTARY SCHOOLS
School
Permanent
Capacity
1991-92
Staff
Proposal
Citizens
Committee
Superin
tendent
School
Board
% U* %B** %U %B %U %B %U %B %U %B
Bartow 480 83% 42% 84% 38% 45% 42% 63% 40% 72% 48%
Stephens 675 93% 49% 66% 34% 73% 31% 66% 39% 77% 48%
Floral Av. 550 108% 22% 77% 38% 79% 41% 71% 42% 78% 48%
Gibbons
Street 400 94% 61% 99% 35% 100% 33% 100% 33% 100% 33%
Eagle Lake 575 99% 8% 106% 20% 117% 22% 111% 20% 103% 13%
Highland
City 400 140% 9% 127% 22% 123% 19% 156% 18% 158% 11%
Alturas 350 120% 15% 116% 18% 133% 30% 142% 19% 107% 8%
Total 3430 103% 28% 93% 28% 93% 28% 93% 28% 1 93% 28%~r1
*% U= % Utilization (enrollment or projected enrollment as a percentage of permanent
capacity) Note: In 1991-92, schools served grades K-6; under all
plans, schools serve grades K-5.
**% B= % black enrollment
Source: R1 - 7/29/92 Joint Explanatory Report of Disputed Issues - Exhibits "A," "C"; infra
Br. App. 73a-76a, 78a.
10
After receiving this information about the Bartow rezoning
plan adopted by the School Board, plaintiffs notified the Board's
counsel that the plan was unacceptable because it would perpetuate
racially identifiable schools through systematic overcrowding and
under-utilization of facilities.21 Attempts to resolve the dispute
through negotiation were unavailing.22
3. Out-of-zone transfers. As noted above, the agreed order defines
with considerable specificity the grounds upon which Polk County
students may be permitted to transfer to schools outside their
attendance areas.23 These provisions were to become effective for
the 1992-93 school year with a single exception.24 On June 23,
1992 the school district requested that plaintiffs and plaintiff-
intervenors agree to a modification of this part of the agreed
order so as to continue "out-of-zone" transfers in most geographic
areas of the school system for another school year.25 The other
parties declined to agree to this request.26
21See R1 - 8/20/92 Response of Norman J. Chachkin to Order of
August 17, 1992 - Exhibit »B"; infra Br. App. 103a-106a.
22See R1 - 8/20/92 Response of Norman J. Chachkin to Order of
August 17, 1992 - Exhibit "C"; infra Br. App. 108a-109a.
23See R1 - 5/7/92 Proposed Order - 29-36 [§ I.E.]; infra Br. App.
32a-39a.
24See id. at 30 n.**; infra Br. App. at 33a n.**.
25See Rl - 7/29/92 Joint Explanatory Report of Disputed Issues
- Exhibit "E"; infra Br. App. 80a-82a.
26See Rl - 7/29/92 Joint Explanatory Report of Disputed Issues
- 6-7; infra Br. App. 69a-70a.
11
4. Request for judicial determination. On July-29, 1992 the parties
submitted a Joint Explanatory Report of Disputed Issues to the
district court.27 This document attached, as exhibits, maps and
narrative materials describing all of the plans (including the
original staff proposal prepared for use by the citizens'
committee) that had been transmitted to counsel for plaintiffs and
the United States, as well as the district's request to extend
"out-of-zone" transfers for another school year.
In accordance with the requirements of the district court's
July 8 order (quoted supra at 6-7) , the Report described the
parties' positions:
Plaintiffs and the United States have indicated to
the School Board that they do not believe the plan meets
the requirements of the Fourteenth Amendment or the Order
that the Court has entered. They contend that the level
of actual desegregation which is likely to result from
implementation of this plan, as revealed in the
projections prepared by the school district, is
unacceptable in light of alternatives which are clearly
available to the school district. . . .
The School Board's position is that the plan the
Board has adopted is a reasonable measure that is
adequately responsive to the requirements of the Order
without causing undue disruption to established patterns
of school attendance.28
27R1 - 7/29/92 Joint Explanatory Report of Disputed Issues; infra
Br. App. 64a-87a.
28R1 - 7/29/92 Joint Explanatory Report of Disputed Issues -
3-4; infra Br. App. at 66a-67a. The Report also included a footnote
in support of the position taken by the plaintiffs and the United
States on the Bartow area elementary school zoning plan, which
cited cases in which "a pattern of drawing zones creating over- and
under-enrolled schools of substantially differing racial
composition has been recognized by the federal courts as a classic
(continued...)
12
It also contained information concerning dates on which counsel
would be available for proceedings before the court as well as the
representation, to which all counsel subscribed, that they believed
the matter could appropriately be resolved on the papers without
the necessity of a hearing.28 29
On August 17, 1992 the district court entered the order from
which this appeal arises.30 In that order, the court recited that
it had received not only the Joint Explanatory Report, but also
"correspondence from [a private attorney] . . . [addressing] the
plight of 34 children residing in the Waterwood Subdivision of
Highlands City" as well as "numerous telephone calls and letters
28(. . .continued)
method of maintaining segregation in violation of the Constitution"
{id. at 3 n.2? infra Br. App. at 66a n.2).
29Id. at 7? infra Br. App. at 70a.
30Rl - 8/18/92 Order; infra Br. App. 87a-90a.
On August 3, 1992 the district court had begun a trial that
was anticipated to last for several weeks. In response to a
request from counsel for a brief telephone conference to discuss
the need for a ruling prior to the imminent commencement of the
1992-93 school year, counsel were informed that any party could
submit a proposed order directly to the judge by FAX. Counsel for
plaintiffs and the United States submitted such a proposed order on
August 10, 1992. The district court did not make this filing a
part of the record in this matter but did make reference to it in
the August 17 order that he issued (see R1 - 8/18/92 Order - 3; infra
Br. App. at 89a). Appellants do not believe the proposed order is
relevant to this appeal but would be pleased to furnish it to this
Court if it so desires; with respect to the district court's
reference to it in the August 17 order, see the response of counsel
for plaintiffs to that order, R1 - 8/20/92 Response of Norman J.
Chachkin to Order of August 17, 1992 - 4 f 5; infra Br. App. at 94a
15.
13
from interested individuals and groups.”31- The court recognized
that the parties were willing to dispense with an evidentiary
hearing, and as well that the shortness of time then remaining
before school was to open made such a hearing impractical.32
However, the Court commented, "[w]ithout respect to the wisdom of
the decision to dispense with an evidentiary hearing, both the
Court and the public are entitled to consider matters of such
importance on a more contemplative basis and on a more relaxed
schedule."
Turning to the parties' substantive disputes, the district
court made no comparison of the different zoning plans supported by
the respective parties nor discussed any grounds for superseding
the language of the agreed order respecting out-of-zone transfers.
It simply announced that the plan adopted by the School Board
should be implemented for the 1992-93 school year and that "[t]he
reguest of the School Board of Polk County to modify the jointly
submitted order so as to allow out-of-zone transfers granted in
1991-92 to be continued for another school year is granted.”33 The
court then suggested that the parties and their counsel should have
known at the time the agreed order was negotiated that they would
31R1 - 8/18/92 Order - 1; infra Br. App. 87a. None of this
correspondence was made a part of the record by the district court,
nor was it made available to counsel for the parties. (The letter
concerning the Waterwood residents had been sent to counsel for all
parties by its author.)
32R1 - 8/18/92 Order - 2; infra Br. App. 88a.
33Id.
14
deadlock over the question of rezoning elementary schools in the
Bartow area,34 35 and stated that
When the onset of a school year is imminent, everyone's
options become limited, and in all probability, a result
hastily achieved on an incomplete record is not the best
result for the students of Polk County, whose interests
are regarded by this Court as preeminent in this
controversy.1351
This appeal followed.
C . Standard o f review.
In this school desegregation case, the district court's
remedial order is reviewed for abuse of discretion, e.g. , Harris v.
Crenshaw County Board o f Education, 968 F.2d 1090, 1098 (11th Cir. 1992);
Lee v. Anniston City School System, 737 F.2d 952, 955 (11th Cir. 1984); that
discretion, of course, must be "guided by sound legal principles,"
Albemarle Paper Company v. M oody, 422 U.S. 405, 416 (1975), citing United
States v. Burr, 25 F. Cas. 30, 35 (C.C. Va. 1807) (No. 14692) (Marshall,
C.J.) .
The district court's decision to modify the agreed order as
requested by the School Board, over the objection of other
signatory parties, is subject to plenary review for legal error by
this Court.
340n this point, see R1 - 8/20/92 Response of Norman J.
Chachkin to Order of August 17, 1992 - Exhibit "D"; infra Br. App.
llla-13a.
35R1 - 8/18/92 Order - 3; infra Br. App. 89a.
15
Summary o f Argument
Because the Polk County school district has not eliminated all
vestiges of its prior dual system to the extent practicable, it
remains obligated to act affirmatively to achieve this goal, and to
further the desegregation of its schools. Under applicable
precedent, the district's student assignment plans must be designed
to achieve the greatest amount of actual desegregation that is
feasible. The district court erred, under this precedent, in
approving (without stating any reason) the Bartow area elementary
school rezoning plan adopted by the School Board because the plan
creates racially identifiable, under-utilized black schools in
Bartow and racially identifiable, over-crowded white schools
outside the city, despite the existence of feasible alternative
plans that would achieve greater desegregation and make more
efficient use of available school capacity. Because the
practicability and effectiveness of those alternatives is
undisputed on this record, a remand for specific findings by the
district court is unnecessary.
The court below also erred in modifying a consent order over
the objection of two of three signatories because the party seeking
the modification failed to articulate, or to establish, any changed
circumstances justifying the modification.
Because proceedings under the agreed order in this case will
continue for several years, this Court should provide specific
guidance to the district court respecting the manner in which
issues in the litigation should be considered and adjudicated.
16
ARGUMENT
Introduction
This appeal raises two narrow but important issues in the law
of school desegregation remedies. We refer to the issues as narrow
because they are presented in a context of agreement, rather than
disagreement, by the parties about liability and about most other
remedial matters. Indeed, the very clarity of the legal questions,
and the absence of disputed factual assertions, is what led the
parties to suggest to the court below that those legal questions
could appropriately be resolved on the papers, without an
evidentiary hearing.
Instead of acknowledging their efforts to conserve judicial
resources and to facilitate prompt resolution of their dispute, the
district court castigated the parties and their counsel for not
having foreseen that these matters would be in dispute when they
negotiated the comprehensive consent order that the court had
approved less than six weeks before. The court then proceeded to
announce its judgment without addressing any of the legal issues
raised by the parties7 filing. In so doing, we submit, the lower
court committed reversible error by approving a system of pupil
assignments that cannot withstand constitutional scrutiny and by
modifying a consent judgment over the objections of signatory
parties without an adequate justification in law for so doing.
17
I
The Elementary School Zoning Plan Adopted By
The Polk County School Board Should Have
Been Rejected By The District Court
In Light Of Available, Feasible Alternatives
That Would Achieve Greater Desegregation
The Polk County school district has never been found to have
eliminated all vestiges of prior discrimination to the extent
feasible, see Board o f Education o f Oklahoma City v. D owell, ___U.S. ____, 112
L. Ed. 2d 715 (1991), or to have done so in any discrete area of
its operations, see Freeman v. Pitts, ___ U.S. ___, 118 L. Ed. 2d 108
(1992). As the brief summary of the prior history of this action
indicates (supra at 2-5), there have been repeated judicial rulings
over a long period of years requiring new student assignment plans,
or refusing to permit the dismantling of existing student
assignment plans, because effective desegregation of the public
schools in Polk County had not been satisfactorily achieved. It is
to their credit, we suggest, that the parties (including the School
Board) recognized the situation in the agreed order that they
jointly submitted on May 6, 1992 and devised therein a
comprehensive approach that may finally lead to full constitutional
compliance, and to the ultimate dismissal of this lawsuit.
Specifically with relevance to the present appeal, the parties
agreed on a new pupil assignment plan in the Lakeland area, and
they also agreed that similar revisions of pupil assignments
throughout the rest of the school system would be required in order
18
to create middle schools across the district "and to facilitate
desegregation." The agreed order provided that at the end of the
1991-92 school year, the district would present to the other
parties a proposal for adjusting — beginning with the 1992-93
school year — zones for elementary schools in the Bartow area.36
In 1991-92, enrollment at the Gibbons Street Elementary School
— the historically black school in Bartow — was 61% black, and at
Stephens Elementary School in Bartow was 49% black, while three
elementary schools outside the Bartow municipality (Highland City,
Eagle Lake and Alturas) were 9%, 8% and 15% minority, respectively
(see table supra at 10) .37 The School Board ultimately adopted, and
the court below approved, a plan that was projected to reduce
Gibbons Street's minority enrollment to 33% but also to raise the
black enrollment at three other elementary schools within Bartow to
48% each, while leaving the three heavily white schools outside the
city with enrollments that were less than 15% minority.38 Under
this plan, each of the nearly half-black schools in Bartow would be
filled to less than 80% of its permanent structural capacity, while
36The school district is divided, for administrative purposes,
into five administrative regions. The elementary schools treated
together in the Bartow rezoning plan are all within the South
Central region; all are within a radius of approximately five to
six miles of the elementary schools located within the municipality
of Bartow.
37Total 1991-92 grade K-6 elementary school population in this
area was 28% black. (See R1 - 7/20/92 Joint Explanatory Report of
Disputed Issues - Exhibit "C"; infra Br. App. 78a.)
38See R1 - Joint Explanatory Report of Disputed Issues -
Exhibit "A" at 4; infra Br. App. 76a.
19
the three heavily white schools would each be over capacity; in the
most egregious instance, Highland City Elementary School was
projected to go from 9% black to 11% black but be even more
overcrowded than during the previous year, going from 140% of
capacity to 158% of capacity.
The School Board considered but rejected available alternative
plans that would have both reduced the extent of overcrowding and
also more evenly balanced enrollments racially. There was no
contention below that these alternatives were not educationally
sound and feasible;39 there could hardly have been such an
allegation, since the alternatives were developed by the district's
staff or its appointed committee.
Under controlling precedents of the Supreme Court and in this
Circuit, the district court should have rejected the Board's plan
for Bartow elementary schools.
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.
39The district court's ruling adopting the agreed order
required the parties to submit a joint explanatory report in the
event of any dispute that necessitated judicial resolution. In
fashioning the report that was presented to the court in this case,
each party had the opportunity to include whatever description of
its position that it wished. The school district made no
representation that any of the alternative zoning plans for Bartow
was unsound or impracticable.
20
Harris v. Crenshaw County Board o f Education , 968 F.2d 1090, 1094-95 (11th
Cir. 1992)(footnote citations omitted). In fashioning remedial
plans, "[t]he district judge or school authorities should make
every effort to achieve the greatest possible degree of actual
desegregation," Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1,
26 (1971), "taking into account the practicalities of the
situation," Davis v. Board o f School Commissioners o f M obile, 402 U.S. 33, 37
(1971). A school board's proposal must be disapproved "if there
are reasonably available other ways, such for illustration as
zoning, promising speedier and more effective conversion to a
unitary, nonracial school system," Green v. County School Board o f New Kent
County, 391 U.S. 430, 441 (1968) (rejecting "freedom of choice") ; see
also Sw ann, 402 U.S. at 27-30 ("gerrymandering" of attendance
zones to achieve greater desegregation, pairing, clustering and
student transportation were remedial tools within district court's
equitable discretion since they were "well within the capacity of
the school authority" to implement).
The alternative selected by the School Board in this case
projected the least change in racial composition at the schools
that were identifiably white (15% black or less) in 1991-92. It
also would perpetuate the simultaneous operation of overcrowded,
identifiably white facilities outside Bartow and under-utilized,
identifiably black schools within that municipality. (See table,
21
supra at 10.) In this part of the school district,40 then, the plan
adopted by the School Board reinforces, rather than alters, the
historic pattern of racially identifiable schools for black pupils
in Bartow and racially identifiable schools for white pupils
outside the city. In light of available alternatives that would
have changed this traditional distribution, the Board's zoning plan
is constitutionally inadequate. Harrington v. Colquitt County Board o f
Education, 460 F.2d 193, 195-96 (5th Cir.)("In light of the history
of segregation in Colquitt County, the existence of an alternative
plan that eliminates the single race characteristic of the five
predominantly white elementary schools outside Moultrie, and the
minimal burden adoption of this plan would entail, a 'close
scrutiny7 of the school board's plan reveals that it does not
overcome the presumption against the 'continued existence of some
schools that are all or predominately of one race'”) , cert, denied, 409
U.S. 915 (5th Cir. 1972).
The Board's plan fails to meet the mandate to achieve the
"greatest possible degree of actual desegregation" that was
40While district-wide racial composition is an appropriate
"starting point" in fashioning a desegregation plan, Sw ann, 402
U.S. at 25, in determining whether there are still "racially
identifiable schools" it is often appropriate to focus on smaller
groups of schools in particular attendance zones. See United States v.
Lowndes County Board o f Education , 878 F.2d 1301, 1305 text at n.8 (11th
Cir. 1989).
In this case the differences are not significant. Total K-5
enrollment in the group of schools covered by the plans before the
district court is approximately 28% black; the analogous county
wide proportion is approximately 23%.
22
enunciated by the Supreme Court in Swann and Davis. This case is
distinguishable from Lee v. Anniston City School System, 737 F.2d 952 (11th
Cir. 1984) — which rejected the application of the Swann and Davis
rule — for several reasons. First, i n Anniston the school board had
successfully implemented an acceptable and effective plan in 1975
and was not subject to any requirement that it modify student
assignments to achieve desegregation. See 737 F.2d at 954. Here,
at the time the agreed order was negotiated, the school district
was subject to an outstanding decree requiring a new pupil
assignment plan in the Lakeland area; and the parties concurred, in
fashioning the order, that rezoning throughout the system —
including in Bartow — was necessary "to facilitate desegregation."
C f , e.g. , United States v. Lawrence County School District, 799 F.2d 1031, 1042-46
(5th Cir. 1986) (adoption of initial plan "does not exhaust the
power of the court to direct elimination of vestiges of segregation
that remain or become apparent only after the plan has been put
into place").
Second, in Anniston the alternative plans which plaintiffs
claimed would achieve "a greater degree of actual desegregation"
had significant limitations. One would have required alteration of
the grade structure established throughout the district by the
board; the other "posed transportation and safety problems." 737
F.2d at 956. Neither of these difficulties is present in the case
at bar. The alternative zoning configuration supported by
plaintiffs below was fashioned by the district's own staff and is
23
entirely feasible to implement. All that the Polk County School
Board told the court below is "that the plan the Board has adopted
is a reasonable measure that is adequately responsive to the
requirements of the [agreed] Order without causing undue disruption
to established patterns of school attendance."41 That approach was
long ago recognized to be inadequate performance of the affirmative
duty to desegregate:
Where the Board is under a compulsion to desegregate the
schools (1st Brown case, 347 U.S. 483) we do not think
that drawing zone lines in such a manner as to disturb
the people as little as possible is a proper factor in
rezoning the schools.
Henry v. Clarks dale Municipal Separate School District, 406 F.2d 682, 688 (5th
Cir.) (quoting Norther oss v. Board o f Education o f M em phis, 333 F.2d 661, 664
(6th Cir. 1964)), cert, denied, 396 U.S. 940 (1969) .42
Moreover, as plaintiffs and plaintiff-intervenor United States
advised the court below,43 manipulation of school capacity and
attendance boundaries in this fashion has been recognized by the
federal courts as a classic method of maintaining segregation in
41R1 - 7/29/92 Joint Explanatory Report of Disputed Issues -
4; infra Br. App. 67a.
42The Superintendent modified the Citizens Committee plan
"because of his belief that Highland City is a separate community
from Bartow," R1 - 7/29/92 Joint Explanatory Report of Disputed
Issues - Exhibit "A" at 3; infra Br. App. 75a. Such a justification
for a less effective plan is equally unavailing. Davis v. Board o f
School Commissioners o f M obile , 402 U.S. 33 (1971).
43See R1 - 7/29/92 Joint Explanatory Report of Disputed Issues
- 3 n.2; infra Br. App. 66a n.2.
24
violation of the Constitution. E.g., Morgan Vr Hennigan , 379 F. Supp.
410, 425-32 (D. Mass.), ajj'd, sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st
Cir. 1974), cert, denied, 421 U.S. 963 (1975); Keyes v. School District No. 1,
Denver, 303 F. Supp. 279, 285, supplemental findings , 303 F. Supp. 289,
290, 293 (D. Colo. 1969), a j fd , 445 F.2d 990 (10th Cir. 1971), vacated
and remanded on other grounds, 413 U.S. 189 (1973); cf. Lee v. Macon County
Board o f Education , 448 F.2d 746, 754 (5th Cir. 1971) (closing black
school would have put white school on double sessions).
This Circuit addressed a similar situation, in the context of
a school district subject to the affirmative remedial duty to
desegregate, in Jacksonville Branch, NAACP v. Duval County School Board, 883
F . 2d 945 (11th Cir. 1989). In that case, the trial court had
relinquished jurisdiction after concluding that all vestiges of the
dual system had been eliminated. This Court held that the district
court's finding was clearly erroneous, reviewing (among other
factors) the relationship between facility utilization and racial
composition:
Since 1972, without court approval, the Board has
used portable buildings and leased additional space to
accommodate overcrowding at some schools. Other schools
were underpopulated. No studies were conducted to assess
the potential impact of these practices on the school
system's racial imbalances.
Segregation in the district as a whole has increased
since 1972. In that year, eight schools had majority
black populations; in 1985, twenty-seven schools fell
into that category. Appellant asserts that the
district's use of portable classrooms and leasing of
25
additional classroom space were partially responsible for
this increased segregation. It is unnecessary for us to
make a determination as to the actual effect of these
practices, however, in light of the board's concession
that no studies were conducted to assess their potential
impact on the system's racial imbalances. The Board's
failure to consider the objective of desegregation in its
efforts to alleviate overcrowding violates its
affirmative duty to desegregate. Pitts v. Freeman, 755 F.2d
1423, 1427 (11th Cir. 1985).
Jacksonville Branch, N A A C P, 883 F.2d at 949, 952-53. Here, the actual
effect of differential utilization of facilities is known: the
alternative plans with the least overcrowding of facilities also
result in the most desegregation. Under such circumstances, the
School Board's preference for a less effective alternative cannot
be sustained.
The district court did not explain the basis for its ruling
approving the Board's plan, except to suggest that the parties
should have foreseen the controversy when they negotiated the
agreed order and that "both the Court and the public are entitled
to consider matters of such importance on a more contemplative
basis and on a more relaxed schedule."44 While we can understand
the court's disappointment, we respectfully suggest that it cannot
justify the court's acceptance of an unconstitutional plan.
The timing problem facing the court below was not entirely
attributable to the parties. The underlying agreed order, which
set the stage for the rezoning, was submitted on May 6, 1992. The
district court took no action on the parties' joint motion to enter
44R1 - 8/18/92 Order - 2; infra Br. App. 88a.
26
that order until June 1, 1992, when it scheduled a hearing June 5,
1992.45 46 At the conclusion of that hearing, the court appeared to
indicate that it would approve the order promptly:
THE COURT: . . .Mr. Chachkin, we won't do anything
until the close of business Tuesday. And if in the
interim you have any — you either decide you don't want
to make changes or whatever, just give us a call, and
I'll do something shortly after Tuesday.
And so that all will be on notice, whether I like it
or not or whether you like it or not, if I become
dissatisfied with the progress that's being made and if
I become dissatisfied with the record that is established
by the parties in resolving these issues, you will see
more of me than every six months because we're going to
get this job done in this case which bears the date 1963.
And we're going to get it done, I think, sooner than any
of you might suppose, or, at least, we're going to
exhaust considerable energy and patience trying to do
that.1461
However, the court did not approve the order until more than a
month later, July 8, 1992.47 The School Board then took action on
the Bartow rezoning, its decision was communicated to the other
parties, and the disputes that were submitted to the district court
arose.
The parties' counsel cooperated in assembling relevant
information without formal discovery and presented the district
court on July 29, 1992 with a Joint Explanatory Report of Disputed
Issues, which included a comprehensive set of factual attachments.
45R1 - Docket Entries - 16.
46R2 - 55, 56-57.
47R1 - 7/9/92 Order; infra Br. App. 58a-63a.
27
The Joint Explanatory Report indicated the -parties' shared belief
that an evidentiary hearing would not be necessary. Although the
district court was informed that Polk County schools were scheduled
to open for the 1992-93 school year on August 20, the court neither
scheduled a hearing48 before it nor referred the matter to a
Magistrate Judge for a report and recommendation.49 Counsel for
all parties offered to participate in a telephone conference with
the Court but were informed only that the Court would accept
proposed orders FAXed to its office. Ultimately, the district
court waited until August 17 — three days before school was to
open — and then entered the order from which this appeal was
taken, approving the Board's plan and modifying the agreed order
over the objections of signatory parties, all without any legal
analysis or reasoning whatsoever.
Even if there were circumstances in which shortness of time
justifies maintenance of the status quo a n te ,50 that was not the
situation here. Establishment of Union Academy as a magnet school
and creation of middle schools necessitated restructuring of
elementary schools to serve only grades K-5 and re-drawing of zone
lines; therefore, alteration of the status quo ante would necessarily
48The order appealed from implies that the district court may
have disagreed with the position of counsel for the parties that an
evidentiary hearing was unnecessary.
49See Fed. R. Civ. P. 72(b).
50But see Carter v. West Feliciana Parish School Board, 396 U.S. 290
(1970); Alexander v. Holmes County Board o f Education , 396 U.S. 19 (1969).
28
occur. Moreover, while it is of course- appropriate that the
district court have broad discretion to control its docket, we
respectfully submit that docket control or scheduling difficulties
cannot justify announcement of a judgment unsupported by any
factual findings or legal analysis, thus substantially disabling
effective review by an appellate court. See, e.g., United States v.
C RU C IAL, 722 F. 2d 1182, 1188-89 (5th Cir. 1983) (district court
"made no findings at all with regard to the efficacy of the plan it
adopted; nor did it make comparative findings . . . therefore, we
have no basis for evaluating the degree to which the plan adopted
was 'reasonably related to the ultimate objective7 of
desegregation7") (citation omitted) ; Valley v. Rapides Parish School Board,
646 F.2d 925, 940-41 (5th Cir. 1981)(district court's failure to
make factual findings evaluating alternative plans and giving
"specific reasons for their rejection" required remand) , cert, denied ,
455 U.S. 939 (1982); Lee v. Macon County Board o f Education , 616 F.2d 805,
808-09 (5th Cir. 1980)("The court's decision, however, does not
detail sufficient factual findings for us to ascertain whether the
plan reached the maximum desegregation permitted by local
conditions").
Because the Joint Explanatory Report of Disputed Issues
contains detailed information about the results projected under
each of the plans, and because there is no issue as to feasibility,
a remand to the district court is unnecessary in the case at bar;
this Court can properly determine on the record that it was error
29
to approve the School Board's plan. United -States v. DeSoto Parish School
Board, 574 F.2d 804, 813 n.20 (5th Cir.)("Nor are we required to
send the case back to the District Court for findings of fact that
. . . seem to us to be obvious"), cert, denied, 439 U.S. 982 (1978);
Mills v. Polk County Board o f Public Instruction, 575 F.2d 1146, 1147 (5th Cir.
1978)("The district court's findings of fact and conclusions of law
state no reason for excluding the first and second grades from the
desegregation plan, and none can be gleaned from the record"). It
should do so and reverse the judgment below.
II
The District Court Erred In
Modifying The Agreed Order
Over The Objections Of Two Of The
Three Signatory Parties
The agreed order submitted by all parties establishes clear
guidelines and limited grounds for students to transfer out of the
schools serving the attendance zones within which they reside.
Except for a footnote explicitly "grandfathering" transfers granted
in 1991-92 to rising high school seniors,51 the new restrictions
on transfers were to be effective in the 1992-93 school year, like
other provisions of the agreed order which did not contain any
language postponing or limiting their effectiveness.52
51R1 - 5/7/92 Proposed Order - 30 n.**; infra Br. App. 33a n.**.
52The school district recognized that the transfer restrictions
of the agreed order were applicable in the 1992-93 school year.
(continued...)
30
After the hearing conducted by the district court on the
agreed proposed order,52 53 and while the order was under submission,
the School Board requested the other parties to consent to
"grandfather” more than 1100 out-of-zone transfers from the 1991-92
school year.54 55 Both private plaintiffs and the United States
declined to agree to this modification of the consent order:
The position of these parties is that the school district
agreed in the proposed Order to correct now the policy of
liberal transfers that had contributed significantly to
the failure of earlier desegregation efforts in this
case, and that there are no changed circumstances which
warrant relaxation of that reguirement. The plaintiffs
and the United States also believe that modification of
the requirement for enforcement of attendance zones is
particularly unwise at the commencement of implementing
the Order, especially in light of the unacceptable zoning
proposal adopted by the Board for the Bartow area.1551
The school district, for its part, did not identify any changed
circumstances to justify its request that the agreed order be
modified, but simply stated that it would prefer to continue the
transfers:
The School Board believes that a one-year exception
to the zone enforcement requirements for pupils who had
already been granted out-of-zone transfers in prior
years, and effective only for those areas of the school
system whose rezoning is being deferred under the Order
until the 1993-94 school year, has virtually no impact
52 (.. . continued)
See R1 - 7/29/92 Joint Explanatory Report of Disputed Issues -
Exhibit "E"; infra Br. App. 80a-82a.
53R2.
54R1 - 7/29/92 Joint Explanatory Report of Disputed Issues -
Exhibit "E"; infra Br. App. 80a-82a.
55R1 - 7/29/92 Joint Explanatory Report of Disputed Issues -
6-7; infra Br. App. 69a-70a (emphasis in original).
31
upon desegregation and will meaningfully increase public
acceptance of the desegregation Order and thus enhance
the chances for its successful implementation.1561
On this record, the district court's ruling allowing
continuation of the transfers in the present school year amounted
to a modification of the consent order over the objections of two
of its three signatory parties and was clear error.
The standards applicable to the Board's request were clarified
by the Supreme Court just this past Term in Rufo v. Inmates o f the Suffolk
County Jail, ___ U.S. ___, 116 L. Ed. 2d 867 (1992). In that
decision, the Court abandoned, at least "in the context of
institutional reform litigation," ___U.S. at ____, 116 L. Ed. 2d at
885, the rigid "grievous wrong" standard of United States v. Swift &
Company, 286 U.S. 106 (1932) and held that modification of consent
decrees in such cases might be appropriate even if a change in
facts were not both "'unforeseen and unforeseeable,'" id. at ___,
116 L. Ed. 2d at 887. Nevertheless, the Court stopped well short
of authorizing modification at will. Indeed, the decision makes
quite clear that a governmental entity seeking to be relieved of
obligations that it undertook in a consent decree must demonstrate
changed circumstances that make compliance with its obligations
substantially more onerous, if not impossible, and that the modification
sought is consistent with the overall purpose of the decree. The 56
56Id. at 7; infra Br. App. at 70a.
32
essence of the standard established by the Court is captured in the
following sentences from its opinion, which are not limited in
their applicability to the case at bar by the factual context of
the Rufo litigation:
. . . Rule 60(b) (5) provides that a party may obtain
relief from a court order when "it is no longer equitable
that the judgment should have prospective application,"
not when it is no longer convenient to live with the
terms of a consent decree. Accordingly, a party seeking
modification of a consent decree bears the burden of
establishing that a significant change in circumstances
warrants revision of the decree. . . .
Modification of a consent decree may be warranted
when changed factual conditions make compliance with the
decree substantially more onerous. . . .
Ordinarily, however, modification should not be
granted where a party relies upon events that actually
were anticipated at the time it entered into a decree.
Of course, a modification must not create or
perpetuate a constitutional violation. . . .
To conclude, we hold that the Swift "grievous wrong"
standard does not apply to requests to modify consent
decrees stemming from institutional reform litigation.
Under the flexible standards we adopt today, a party
seeking modification of a consent decree must establish
that a significant change in facts or law warrants
revision of the decree and that the proposed modification
is suitably tailored to the changed circumstance.
Id. at ___-__, 116 L. Ed.-2d at 886-92.
The modification made by the district court was completely
unwarranted under these standards. There was not even the
articulation, by the school district — much less a showing — of
"a significant change in facts or law [that] warrant[ed] revision
33
of the decree," nor did the district court make any findings that this
was the case. Its judgment must, therefore, be reversed.
Ill
Guidance From This Court
Is Necessary For The Proper Conduct
Of Further Proceedings In This Action;
The Certainty Of Those Proceedings
Prevents This Appeal From Being Rendered Moot
This appeal has been expedited on appellants' unopposed
motion, which advanced two reasons for accelerating its scheduling
and submission: the certainty of further proceedings in this
action that will be materially affected by the Court's ruling on
the issues raised on this appeal, and the possibility of mootness
as the end of the current school year approaches. We wish to touch
briefly upon each of these concerns.
Mootness. As to the elementary school rezoning issue, the
question of mootness arises only because of the particular language
used by the district court in its order of August 17. Although it
required that Bartow area elementary schools be rezoned "to
facilitate desegregation" "effective for the 1992-93 school
year,"57 nothing in the agreed order suggests that the parties
intended that rezoning to be temporary. The district court,
however, ruled that "[t]he rezoning plan adopted by the School
57See excerpt from agreed order quoted supra at 7 text at n.17.
34
Board of Polk County . . . shall remain in force as adopted by the
School Board for the 1992-93 school year."58 59
If the court meant by that language either that it expected
the school district to adopt a new rezoning plan to become
effective in 1993-94, or that the court intended to reconsider the
sufficiency of the plan during the present school year, it did not
clearly so indicate. In any event, if one makes the assumption
that the court below intended its ruling to be applicable only to
the 1992-93 school year, this merely underscores the need for
review by this Court despite the possibility of mootness.
Nothing prevents the issuance of another ruling on school
assignment plans covering only a single school year, similar to the
order from which this appeal is taken, and this case thus
constitutes a classic situation in which the legal errors below are
"capable of repetition, yet evading review."
Similarly, while the modification of the agreed order made by
the district court respecting student transfers applies by its
terms only to the current school year, nothing restrains the school
district from requesting, during the summer of 1993 — or the
58R1 - 8/18/92 Order - 2; infra Br. App. 88a.
59We reiterate what we said in the Motion to Expedite Appeal:
Appellants believe that the timing and content of appropriate relief,
should this Court agree with their position on this appeal, will
depend upon a consideration of the equities as they exist at the
time a decision is rendered, and that such consideration of the
equities may properly be made the responsibility of the district
court upon a remand.
35
district court from approving — another one-year extension of out-
of-zone transfers. If the district court were to grant such a
request over the objection of the other parties, another appeal
would be likely. Thus, even if the 1992-93 school year ends while
this appeal is under submission, we submit that it should be
decided under the "capable of repetition, yet evading review"
doctrine and not be dismissed. See, e.g. , International Organization o f
Masters, Mates & Pilots v. Brown, 498 U.S. ___, ___ , 112 L. Ed. 2d 991, 1001
(1991)(challenge to union rule restricting pre-convention
membership mailings by candidates for union office not mooted by
completion of election that was original subject of litigation
since plaintiff "has run for office before and may well do so
again"); Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457
(1988)(challenge to statute authorizing school districts to charge
fees for pupil transportation not mooted by payment of fees for bus
service after unfavorable ruling below since decision "would
certainly relieve [plaintiffs]" from future assessments for bus
service" and since age of children and presence of younger siblings
in family demonstrated "ongoing and concrete nature of the
controversy").
Continuing proceedings. The agreed order requires additional school
rezoning this year and in the future. For the reasons that
appellants have set forth above, we believe that the district court
made substantial errors of constitutional dimension in approving
the 1992-93 Bartow area elementary school plan and in modifying the
36
provisions of the order concerning student transfers. Those
substantive errors were compounded by the court's complete failure
to provide any rationale for its decisionmaking.
Appellants have great concern that, absent guidance from this
Court, the continuing proceedings required by the agreed order will
be subject to similar errors in the future. With great respect, we
suggest that there may be a particular need for that guidance in
this instance because the district judge only recently took office
and may be unfamiliar with the long history of school desegregation
matters in this Circuit and in the predecessor Fifth Circuit. We
are further concerned by the court's references to extra-judicial
calls and letters concerning the subject matter of the
litigation;60 these were not made a part of the record or their
contents shared with counsel for the parties, and their impact (if
any) upon the decision-making process is not known.
For these reasons, we believe that this appeal will not be
rendered moot even if it cannot be decided before the end of the
1992-93 school year (although an earlier decision will be of the
greatest assistance to the parties and the court below) and that
the Court should provide specific guidance to govern the district
court in any proceedings upon remand.
60R1 - 8/18/92 Order - 1; infra Br. App. 87a.
37
Conclusion
For the foregoing reasons, the judgment below should be
reversed and the case remanded for further proceedings consistent
with the guidance provided by this Court.
Respectfully submitted,
NORRIS D. WOOLFORK, III
Suite 2
1325 West Colonial Drive
Orlando, Florida 32804
(407) 872-1205
101 West Main Street
P. O. Box 3668
Lakeland, Florida 33602-3668
(813) 682-3111
JULIUS L. CHAMBERS
NORMAN J. CHACHKIN
99 Hudson Street, 16th floor
New York, New York 10013
(212) 219-1900
Attorneys for Appellants
Certificate of Service
I hereby certify that on this /]£&)day of November, 1992, I
served two (2) copies of the foregoing Brief for Appellants upon
the following counsel for the appellees, by prepaid Federal Express
next-day delivery service, addressed as follows:
C. A. Boswell, Jr., Esq.
Polk County School Board
1915 South Floral Avenue
Bartow, Florida 33830
David L. Flynn, Esq.
Appellate Section, Civil Rights
Division
U.S. Department of Justice
10th & Pennsylvania Avenue,
N.W., Room 5740
Washington, D.C. 20004
38
A P P E N D I X
A P P E N D I X
CONTENTS
Page
Joint Motion to Enter Order and Proposed Order,
filed May 7, 1992 ....................................... la
Substitute signature page for Proposed Order,
tendered June 5, 1992 in open court ................... 57a
Order approving Proposed Order, dated July 8,
1992 and filed July 9, 1992 ............................ 58a
Joint Explanatory Report of Disputed Issues,
with exhibits, filed July 29, 1992 .................... 64a
Order of August 17, 1992, filed August 18,
1992 (order appealed from) ............................. 87a
Response of Norman J. Chachkin to Order of
August 17, 1992, with exhibits, filed August
20, 1992 ................................................. 91a
FILED 5/7/92
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HERMAN HENRY MILLS, JR., et al.,
Plaintiffs,
and
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
-vs- CASE NO. 63-150 Civ.-T-H
SCHOOL BOARD OF POLK COUNTY, FLORIDA,
et al.,
Defendants.
/
JOINT MOTION TO ENTER ORDER
Plaintiffs, Plaintiff-Intervenor and Defendants, by their
undersigned counsel, respectfully move that the Court enter
the accompanying Order, which they have each signed indicating
their acceptance of the form and contents of the document. As
recited in the Introduction section of the proposed Order,
plaintiffs agree that upon its entry, their recently filed
Motion for Further Relief shall be treated as having been
withdrawn; defendants have agreed to undertake the measures
described in the proposed Order; and all parties are satisfied
that the provisions of the Order constitute adequate and
legally permissible means of fulfilling the School Board's
obligations in this matter.
Lakeland, Florida 33801 (813) 534-2430
(813) 682-3111
Attorney for DefendantJULIUS L. CHAMBERS
NAPOLEON B. WILLIAMS JOHN R. DUNNE
NORMAN J . CHACHKIN Assistant Attorney General
99 Hudson Street, 16th floor
New York, New York 10013
New York, New York 10013
(212) 219-1900
Attorneys for Plaintiffs
Educational Opportunities
Litigation Section
Civil Rights Division
U.S. Department of Justice
P. O. Box 65958
Washington, D.C. 20035-5958
(202) 514-2192
ROBERT W. GENZMAN
United States Attorney
Attorneys for United States,
Plaintiff-Intervenor
2
Certificate of Service
I hereby certify that on this ( 0 day of May, 1992, I
served copies of the foregoing Joint Motion to Enter Order
upon counsel for the parties, by depositing the same in the
United States mail, first-class postage prepaid, addressed as
follows:
C. A. Boswell, Jr. Larry R. Jackson
School Board of Polk County Suite 220-B
1915 South Floral Avenue 101 West Main Stret
Bartow, Florida 33830 Lakeland, Florida 33801
3
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HERMAN HENRY MILLS, JR., et al.,
Plaintiffs,
and
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
-vs- CASE NO. 63-150 Civ.-T-H
SCHOOL BOARD OF POLK COUNTY, FLORIDA,
et al.,
Defendants.
/
ORDER
Introduction
On April 15, 1988, the Court entered a Consent Order
providing for the modification of earlier decrees in this
litigation with respect to student assignment in the Haines
City area. In that Consent Order, the Court recognized the
need for similar adjustments of pupil assignment in the
Lakeland area and the defendant School Board agreed to file
proposals for such adjustments by (December 31, 1988. On
January 13, 1989 (time having 'been extended), the Board
proposed a series of changes contingent upon the passage of a
bond issue. Plaintiff-intervenor United States of America
responded, questioning the sufficiency of the proposals. No
hearing was conducted, however, because the bond issue was
rejected by the voters of Polk County.
Since that time, the School Board has undertaken to
devise a new pupil assignment proposal for the Lakeland area,
in part through the appointment of a bi-racial committee
appointed by the Superintendent for this purpose. The Board
has opened several new elementary schools in the Lakeland
area, construction of which was made possible by an
alternative financing mechanism approved by the Supreme Court
of Florida (certificates of participation) . In addition,
plaintiffs recently filed a Motion for Further Relief in this
action, seeking to have the Court require additional remedial
steps affecting pupil assignments throughout the Polk County
school system and encompassing a broad range of subject matter
as to which, plaintiffs contend, vestiges of prior
discrimination remain.
The parties to this lawsuit have conferred for the
purpose of resolving pending issues that have been raised in
this matter on a consensual basis and avoiding the necessity
for contested proceedings before the Court. Although the
School Board denies the allegations of the Motion for Further
Relief filed by plaintiffs, it is committed to the operation
of a fully desegregated and nondiscriminatory school system
2
and believes that the plan for the Lakeland area which was
developed with the assistance of the Superintendent's biracial
committee, and the other steps which it has proposed to take
in the remainder of the school system, is the best mechanism
for achieving this end. In the course of their negotiations,
the parties have discussed a variety of concerns about various
aspects of the school board's proposals. Plaintiffs have put
forward a number of alternative desegregation measures that
differ markedly from the School Board's proposals.
Without modifying its position that the plans which it
devised are appropriate to satisfy any obligations which it
has under the Constitution, and bearing in mind the
substantial costs in time and resources that would be
necessarily expended, as well as the potential disruption of
the educational process that might be occasioned if this
matter was litigated before the Court, the School Board has
agreed to undertake the measures described herein. For the
same reasons, without abandoning their belief that other
alternatives would have been more effective and more equitable
means of achieving the complete desegregation of the school
system that is required by the Constitution, plaintiffs have
agreed that when this Order is entered, their Motion for
Further Relief shall be treated as having been withdrawn.
Finally, the United States is satisfied that the measures
3
described herein constitute adequate and legally permissible
means of fulfilling the School Board's obligations in this
matter and will, if successfully implemented, eliminate the
vestiges of the prior dual school system in Polk County,
Florida.
The Court having considered the submission of the parties
and reviewed the entire record in this cause, it is therefore
ORDERED, ADJUDGED and DECREED that the prior Orders of this
Court are modified as provided herein, to the extent that they
are inconsistent with the contents which follow:
I . Pupil Assignment
A. Effective for the 1992-93 school year, the following
modifications in pupil assignments shall be implemented:
1. Establishment o f magnet elementary schools. Lincoln Avenue
Elementary School and Rochelle Elementary School shall be
converted to dedicated magnet (voluntary enrollment) schools.
Rochelle Elementary School shall offer a performing and fine
arts emphasis in addition to the regular curriculum for pupils
in grades K-5. Lincoln Avenue Elementary School shall offer
a traditional school (basic academic) emphasis in addition to
the regular curriculum for pupils in grades K-5. Self-
4
contained programs for gifted students shall not be placed at
the magnet elementary schools.
2. Establishment o f magnet middle schools. Union Academy in
Bartow shall be converted to a dedicated magnet middle school
serving grades 6-8. In addition, Rochelle Elementary School
shall house, in its current facilities on an initial and
temporary basis, a magnet performing and fine arts enrollment
in grades 6-8, and Jesse Keen Elementary School shall house,
in its current facilities on an initial and temporary basis,
a magnet traditional school (basic academic) enrollment in
grades 6-8.
3. Selection o f magnet school participants. The Lincoln Avenue
magnet school is intended to enroll a total student population
of 650. The Rochelle magnet school is intended to enroll a
total student population of 650 in grades K-5 and 150 in
grades 6-8. The Union Academy magnet school is intended to
enroll a total student population of 350. The Jesse Keen
magnet school is intended to enroll a total student population
of 200 in grades 6-8. Admission to the programs is voluntary
but shall be controlled to achieve the desegregation of these
facilities and to preserve the desegregation of other schools
in the system.
- 5 -
a. Admission to magnet schools. Applicants shall be
admitted to the magnet schools in accordance with the
procedures described herein so as to achieve an
enrollment that is 37% black at Lincoln Avenue and
Rochelle Elementary Schools and at Jesse Keen and
Rochelle Middle Schools, or between 20% black and 40%
black if there are not enough applicants to attain that
goal; and to achieve an enrollment at other magnet
schools that is 30% black, plus-or-minus ten percentage
points. If the number of applications for admission to
a magnet school from one racial group exceeds the number
of such students who may be enrolled in the school
consistent with this goal, then applicants from that
racial group shall be selected to receive offers of
admission through a lottery-type process, subject to the
limited neighborhood priority established in the
following subsection.
b. Limited neighborhood priority. Black applicants residing
within the former (1991-92) attendance area of Rochelle
Elementary School shall have first priority for up to 200
seats at the Rochelle elementary magnet school (grades K-
5) and for up to 45 seats at the Rochelle magnet middle
school (grades 6-8); similarly, black applicants residing
within the former (1991-92) attendance area of Lincoln
6
Avenue Elementary School shall have first priority for up
to 200 seats at the Lincoln elementary magnet school
(grades K-5) and for up to 60 seats at the Jesse Keen
magnet middle school (grades 6-8). Other-race applicants
residing within the former attendance area of Rochelle
shall have first priority for up to 325 seats at the
Rochelle elementary magnet school (grades K-5) and for up
to 75 seats at the Rochelle magnet middle school (grades
6-8) ; similarly, other-race applicants residing within
the former (1991-92) attendance area of Lincoln Avenue
Elementary School shall have first priority for up to 200
seats at the Lincoln Avenue elementary magnet school
(grades K-5) and for up to 100 seats at the Jesse Keen
magnet middle school (grades 6-8).
c. Admission controls. All pupils residing in the
Northwest or Southwest administrative areas of the Polk
County school system who are enrolled in a grade served
by the Rochelle, Lincoln Avenue or Jesse Keen magnet
schools shall be eligible to apply for admission to the
schools. All pupils residing in the South Central
administrative area of the Polk County school system who
are enrolled in grades 6-8 shall be entitled to apply for
admission to the Union Academy magnet middle school. The
number of applicants to magnet schools residing in any
7
particular attendance zone who are admitted will be
limited to avoid a significant reduction in the level of
desegregation at the school[s] serving that zone.
tentatively identified for admission to magnet schools in
order of their ranking as determined by a lottery. The
final decision on admission will take into account the
cumulative effect, upon the racial composition of a
sending school, of admitting to [a] magnet school[s] all
applicants from the attendance zone of the sending
school. Admission of students from each individual
sending school shall be limited to avoid causing the
racial composition of sending school's enrollment to fall
outside the range from ten percentage points above to ten
percentage points below ("plus-or-minus ten percentage
points") the system-wide pupil enrollment at the grade
level (elementary, middle, and high school) served by the
school.
e. N o prerequisites for admission. There shall be no
academic, behavioral or subjective (e.g., teacher
recommendations, personal interviews) requirements for
admission to the magnet schools. Pupils who are offered
admission to a magnet school may be required to sign a
written commitment to the philosophy or rules of the
d. Approval o f applicants. Applicants shall be
8
school (and shall be informed clearly of the consequences
of failure to adhere to those rules); if the commitment
is refused, the offer of admission shall be withdrawn,
f. Continuation o f magnet school enrollment. Pupils who were
enrolled in a magnet school during the previous school
year shall be entitled to admission in the following
school year if the school serves their grade and will be
encouraged to remain in the magnet program until
completion of the highest grade level offered at the
school. Pupils admitted to a magnet school will be
required to remain in the school for at least one
academic year, (i) subject to the authority of the
Superintendent to administratively assign a student to a
different placement in accordance with the Student Code
of Conduct adopted by the School Board of Polk County,
and (ii) subject to the same standards governing
voluntarily requested changes in enrollment that are
applicable to pupils in all other schools in the system.
Discipline policies, standards, and penalties for failure
to adhere to them, shall be equivalent at magnet schools
to those at other, non-magnet schools within the Polk
County system. The School Board shall provide written
notice to the other parties of any school rules or
disciplinary provisions not contained in the district
9
wide Student Code of Conduct which are to be applicable
to [a] magnet school[s], at least thirty days in advance
of the date on which such provisions are intended to
become effective. If either of the other parties
objects, the parties shall consult and confer in an
effort to resolve their differences. Should agreement
not be reached, the School Board shall not implement any
such provision[sj to which objection has been made
without first obtaining the approval of the Court.
g. Harrison Performing Arts Center program. The Harrison
Performing Arts Center is an alternative high school
(grades 9-12) program for the arts serving the entire
Polk County School District. The provisions of
subparagraphs e. and f above shall be applied to newly
entering classes at the Harrison Center commencing with
the class entering in the 1992-93 school year, except
that applicants to the Harrison program shall be required
to audition or present a portfolio of works in order to
establish a sufficient level of proficiency to benefit
from the advanced training provided in the program. The
parties recognize that black students are currently
underrepresented in the Harrison Performing Arts Center
program and the school district shall exert its best
efforts commencing in the 1992-93 school year to recruit
10
and substantially increase enrollment of black students
in the program. If the racial composition of the 1995-96
entering class at the Harrison Center (the first entering
class which shall have had the opportunity to enroll in
the Rochelle performing arts magnet middle school for
grades 6, 7 and 8) does not fall within the range
established in subparagraph a. for the magnet schools,
the parties shall consult and confer concerning the need
for and the nature of appropriate additional provisions
governing the operation of the Harrison Center program.
Should agreement not be reached, any party may seek such
relief from the Court as is appropriate.
4 . Changes in Magnet School Programs or Enrollments. The
School Board agrees that the establishment of magnet
schools will not be the occasion for nor lead to the
closing of school facilities that are located in minority
communities or were formerly operated as all-black
schools; the Board is committed to the equitable location
of school facilities in all communities within Polk
County. The Board therefore agrees that:
a. No magnet school shall be closed because of low
enrollment. After each year of operation, the parties
shall review the extent to which each magnet school has
met the enrollment goals contained herein, including the
11
extent to which the full capacity of each magnet school
is being utilized. If the enrollment and full
utilization goals have not been achieved by the beginning
of the third year of operation of the magnet school, the
parties shall consult and confer to reach agreement on
the return of the school to operation as a fully
desegregated attendance-zoned or clustered facility. Any
changes in utilization will be submitted to the Court for
approval.
b. No school facility that was formerly operated as
an all-black school in Polk County shall be closed or
converted to a use different from that specified in this
Order without prior notice to and consultation with the
other parties. The School Board shall provide written
notice of any such proposed closing or conversion to the
other parties (through counsel) at least sixty days in
advance of the anticipated effective date for such
closing or conversion. If either of the other parties
objects, the parties shall consult and confer in an
effort to resolve their differences. Should agreement
not be reached, the School Board shall not implement the
closing or conversion to which objection has been made
without first obtaining the approval of the Court.
5. Transportation o f magnet school students. Transportation will
be provided for students who are enrolled in magnet schools on
the same basis as transportation is provided for students in
non-magnet schools in the Polk County system. (Pursuant to
Florida law, the school district is required to provide
transportation for any student living more than two miles from
the school that he or she attends and for any student living
less than two miles from the school that he or she attends
when there are extreme unsafe conditions.)
6. Eligibility and transportation for extra-curricular activities. All
students who attend magnet schools, whose school assignment is
changed as a result of the opening of the magnet schools or
the revision of attendance zones under this Order, or who
exercise majority-to-minority transfers as provided in this
Order, shall be fully eligible to participate in extra
curricular activities at the schools they attend, without
being subject to any waiting period. In addition, the school
district shall take steps to facilitate participation in
after-school extra-curricular activities by pupils who are
transported to school at the district's expense. When Jenkins
Senior High School opens in the 1993-94 school year the
district shall provide school bus transportation home as
needed by pupils participating in after-school activities.
For the 1992-93 school year, the district shall provide such
13
assistance to students as is feasible utilizing the facilities
of the Lakeland or Polk County public transit systems (through
such means as special contractual agreements, pre-paid fares,
etc.) as may be available. During the 1992-93 school year the
district shall also undertake a comprehensive survey of extra
curricular participation, focusing particularly upon students
who receive transportation to their assigned schools at
district expense, in order to determine the extent of need for
assistance to facilitate access to after-school activities as
well as the feasibility and cost of providing such assistance.
The results of this study (including a description of efforts
made in the Lakeland area, as provided above, in the 1992-93
school year) shall be provided to the other parties, through
counsel, no later than March 1, 1993. Thereafter, the parties
shall consult and confer in an effort to reach agreement on
steps to be taken in the future to insure access to extra
curricular activity participation for transported pupils. If
agreement cannot be reached, any party may seek such relief
from the Court as is appropriate.
7. Magnet School applications process. Applications for
admission to magnet schools must be postmarked and received
during a designated period, of at least three weeks' duration,
of the school year preceding the year for which admission to
the school is sought. The applications period shall be
- 14 -
announced and publicized by the School Board sufficiently in
advance to ensure that all parents and students have an
opportunity to submit timely applications; application forms
for magnet schools shall be made freely available at least two
weeks prior to the commencement of the applications period and
shall be submitted by delivery or mailing to a clearly
specified address.
8 . Enhancements to magnet schools.
a. Capital improvements. The School Board shall enhance
and improve the Lincoln Avenue and Rochelle facilities to
accommodate the magnet programs they will house and to
preserve and enhance their use as community institutions.
The Board shall expend a minimum of $1 million for
capital improvements at the two facilities, including the
construction of enhanced science instructional facilities
and creation of an additional computer laboratory at
Lincoln, and construction of performance, rehearsal and
workshop areas for the arts at Rochelle. The Board shall
expend (of this amount) a minimum of $200,000 for new
equipment (including computer equipment) at the two
schools. These capital improvements shall be completed
as early as possible and in no event later than the
beginning of the 1993-94 school year.
15
b. Adult and Community Education program . Commencing with
the 1992-93 school year, the School Board shall implement
an adult and community education plan serving the
Rochelle and Lincoln Avenue areas. Elements of this
program shall include, at a minimum, the establishment of
a dedicated room for community use at one, or if
possible, both schools; and the creation of a new and
additional full-time administrative position (equivalent
or higher in rank to an assistant principal) of
community/school coordinator, based at one of the two
schools, who shall be responsible for developing and
implementing a wide range of activities utilizing the
resources available through the school system and in the
community (including volunteer, business, civic
organization and other governmental agency resources) to
meet the educational, job training, recreational and
human needs of community residents of all ages, including
the families of students attending the schools. The
adult and community education plan shall be developed and
presented to the other parties for their review within
sixty days after entry of this Order.
9 . Revision o f attendance zones. In order to accommodate the
operation of magnet schools as provided above, to establish a
middle school form of grade organization, and to facilitate
16
desegregation within Polk County schools, attendance zones
shall be modified as follows in the 1992-93 school year:
a. Attendance zones for elementary schools serving
grades K-5 within the Northwest and Southwest
administrative areas of the school system shall be
modified effective for the 1992-93 school year as
indicated on the map appended hereto as Exhibit "A."
Elementary-grade pupils residing in areas not assigned to
specific schools on that map (and who do not attend a
magnet school in 1992-93 or succeeding years) shall be
afforded a controlled choice of school as provided in
Exhibit "A-l" hereto.
b. Attendance zones for middle schools, to serve
grades 6-9 within the Northwest and Southwest
administrative areas of the school system shall be
modified effective for the 1992-93 school year as
indicated on the map appended hereto as Exhibit "B."‘
Middle school pupils residing in areas not assigned to
specific schools on that map (and who do not attend a
magnet school in 1992-93 or succeeding years) shall be
afforded a controlled choice of school as provided in
‘Pupils entering the ninth grade in the 1992-93 school
year shall be afforded an option to remain in the middle
school they attended in the 1991-92 school year if they would
be assigned to a different middle school according to the
attendance zones on Exhibit "B."
17
Exhibit "A-2" hereto. (Upon completion of construction
of the Jenkins High School [anticipated to open for the
1993-94 school year], middle schools shall serve grades
6-8 . )
c. Attendance zones for elementary schools in
the Bartow area shall be modified effective for the
1992-93 school year to accommodate the operation of
magnet schools as provided above, to establish a
middle school form of grade organization, and to
facilitate desegregation. The School Board shall
present a complete written description of such
attendance zones, together with projections of the
resulting school enrollments, to the other parties
(through counsel) no later than June 1, 1992. If
either of the other parties objects to the
implementation of the proposed attendance zones,
the parties shall consult and confer in an effort
to resolve their differences. Should agreement not
be reached, the School Board shall not implement
any modifications to which objection has been made
without first obtaining the approval of the Court.
d. Pupils in grade 6 residing within the attendance
area of Sikes Elementary School shall enroll in Mulberry
Middle School.
18
B. Effective for the 1993-94 school year, the following
additional modifications in pupil assignments shall be
implemented:
1. Establishment o f magnet schools.
a. Winter Haven area. Jewett Middle School shall be
converted to a magnet middle school to which all pupils
in grades 6-8 residing in the North Central
administrative area of the Polk County school system
shall be eligible to apply for admission. The provisions
of paragraphs I.A.3. through I.A.7. above, insofar as
they are not limited in their applicability to schools
specifically named therein, shall apply to the operation
of the Jewett magnet middle school.
b. Haines City area. An elementary school in the Haines
City area other than Bethune Elementary School shall be
converted to a magnet elementary school to which pupils
residing in the Loughman, Davenport, Dundee and Lake
Hamilton areas shall be eligible to apply for admission.
The provisions of paragraphs I.A.3. through I.A.7. above,
insofar as they are not limited in their applicability to
schools specifically named therein, shall apply to the
operation of this magnet elementary school. Attendance
zones for the remaining elementary schools (grades K-5),
19
including Bethune Elementary School, shall be redrawn as
provided below.
The School Board shall present a complete written description
of its plans for these additional magnet schools, together
with projections of their impact upon enrollments at all
affected schools, to the other parties (through counsel) no
later than March 1, 1993. If either of the other parties
objects within thirty days to the implementation of the plans,
the parties shall consult and confer in an effort to resolve
their differences. Should agreement not be reached, the
School Board shall not implement any portion of the plans to
which objection has been made without first obtaining the
approval of the Court.
2. Grade restructuring o f Jewett Elementary School. Jewett
Elementary School, presently a sixth-grade center, shall serve
pupils in grades K-5 with an attendance zone established as
provided below.
3 . Revision o f attendance zones. In order to accommodate the
operation of magnet schools as provided above, to establish a
middle school form of grade organization, to take account of
the completion of additional school construction and to
facilitate desegregation by eliminating racially
disproportionate school enrollments within the Polk County
- 20 -
zones for elementary and middle schools in the North Central
administrative area of the Polk County school system; (b)
zones for elementary schools in the East administrative area
of the Polk County school system; (c) zones for schools in the
Frostproof area; (d) zones for schools in the Mulberry area;
(e) zones for elementary schools in the Lake Wales area; and
(f) zones for high schools in the Lakeland area. The School
Board shall present a complete written description of proposed
modifications, together with projections of their impact upon
the enrollment at all affected schools, to the other parties
(through counsel) no later than March 1, 1993. If either of
the other parties objects to the implementation of any of the
proposed modifications, the parties shall consult and confer
in an effort to resolve their differences. Should agreement
not be reached, the School Board shall not implement any
modifications to which objection has been made without first
obtaining the approval of the Court.
C. Future changes. The School Board shall expand its magnet
school program in the Northwest and Southwest administrative
areas of the district and make future zone changes as follows:
school system, the following attendance zones will require
modification effective with the 1993-94 school year: (a)
- 21 -
1. The Board shall construct permanent facilities for
housing the performing and fine arts magnet middle school at
the Rochelle campus and shall seek to complete such
construction by the opening of the 1994-95 school year.
2. The Board shall construct or renovate permanent
facilities for housing a magnet middle school with a
traditional (basic academic) emphasis to replace the Jesse
Keen magnet school on a permanent basis, which shall be
located within the area bounded on the south by West Ariana
Street and North Crystal Lake Drive (and the imaginary line
connecting them) , on the west by Wabash Avenue, on the east by
East Lake Parker Drive and an imaginary line extended south
from its intersection with Canal Avenue to North Crystal Lake
Drive, and on the north by Bella Vista Street (and the
imaginary line connecting West Bella Vista Street to East
Bella Vista Street).
3. Until the permanent magnet middle school facilities
have been provided, the School Board shall not construct any
additional middle schools or expand the capacity of existing
middle schools serving the Northwest or Southwest
administrative areas of the district.
4. As the enrollment and full utilization goals set
forth above for the Rochelle and Lincoln Avenue Elementary
22
magnet schools are achieved, the School Board shall convert
two additional elementary facilities, one north of the area
described in the preceding paragraph and one south of the
area, to magnet elementary schools. Unless the goals for
Rochelle and Lincoln have not been attained, one additional
magnet elementary school shall be opened in the 1994-95 school
year and the second additional magnet elementary school shall
be opened in the 1995-96 school year. The School Board shall
also provide opportunities for students in the secondary
grades to continue in magnet programs having the emphases or
themes of these additional magnet elementary schools.
5. The provisions of paragraphs I.A.3. through I.A.7.
above, insofar as they are not limited in their applicability
to schools specifically named therein, shall apply to the
operation of the additional magnet schools described above.
6. The School Board shall present a complete written
description of its plans for these additional magnet schools,
together with projections of their impact upon enrollments at
all affected schools, no later than March 1 preceding the
school year in which the additional magnet school[s] will
begin operation. If either of the other parties objects
within thirty days to the implementation of the plans, the
parties shall consult and confer in an effort to resolve their
differences. Should agreement not be reached, the School
23
Board shall not implement any portion of the plans to which
objection has been made without first obtaining the approval
of the Court.
7. Any construction or renovation necessary for or
associated with the implementation of these additional magnet
schools shall be subject to the requirements of § II. (School
Construction) , below.
8. The School Board shall provide written notice to the
other parties (through counsel) of future proposed changes in
attendance boundaries, together with projections of their
impact upon enrollment at affected schools, at least sixty
days in advance of their implementation. If either of the
other parties objects within thirty days to the effectuation
of any of the proposed changes, the parties shall consult and
confer in an effort to resolve their differences. Should
agreement not be reached, the School Board shall not implement
changes in attendance boundaries to which objection has been
made without first obtaining the approval of the Court. If
there is no objection or if the parties reach agreement after
consultation, a description of the boundary modifications and
their projected impact upon school enrollments shall be
included in the next joint report submitted to the Court
pursuant to § X of this Order.
24
of the Polk County School Board that all students attending
the public schools are required to attend the school serving
(at their grade level) the attendance area within which they
actually reside, unless a student has been admitted to a
magnet school, been administratively reassigned pursuant to
the Student Code of Conduct, or has requested and been granted
a transfer in accordance with the provisions of this Order and
the regulations of the School Board. The school district may
verify that the student is actually living at the address by
sending a representative to visit the residence which the
student, parent, guardian, or other adult has represented is
his or her home.
1. Address verification. The school system shall use
objective and reliable methods to verify student addresses,
both during pre-registration or registration periods and in
making unannounced checks of student addresses from time to
time. In particular, the school district shall (a)
investigate all reported changes in address which would alter
the residential school attendance zone of a student, (b)
request the cooperation of the judiciary in denying
guardianship requests or change of custody requests where the
purpose is to create a legal residence in a specific school
zone, and (c) require documentation of a judicial custody
D. Enforcement o f attendance zones; address verification. It is the policy
25
determination in the event that a student's residence changes
as a result of dissolution of the parents' marriage. (The
School Board shall appropriately modify Section 4, f XI.A. and
f XI.A.1. of the Student Code of Conduct, Policy Number 6Gx53-
8.016, adopted June 11, 1991, to conform to this Order.)
2. Residence documentation. When an adult seeks to register
a student entering a school in the Polk County district for
the first time or re-entering the system after interrupted
attendance, or notifies the school system of a change in
residence that would alter the student's school attendance,
verification of the student's actual physical residence with
the adult shall be submitted by providing either
(a) the student's birth certificate establishing that
the student is a child of the adult registering the
child,
(b) the complaint or petition for, and a court order
declaring, that the adult registering the child is
the legal guardian of the student, or
(c) if the adult' is neither the parent nor the legal
guardian of the student, evidence of the student's
actual physical residence with the adult
registering the child (which shall be accepted only
as prima facie evidence of residence subject to
- 26 -
physical verification by the school district's
staff)
and documents verifying the residence of the adult with whom
the student resides from at least two of the following
categories:
(i) property tax records, mortgage documents
or deeds;
(ii) apartment or home lease, or current
utility bill;
(iii) voter precinct or voter registration
documents; or
(iv) documentation of participation in a
governmental benefit program.
If a student's parents are divorced, the parent with whom the
student resides shall be required to furnish a copy of the
complaint or petition for, and the court decree awarding
custody of the student to him or her. A student registering
alone and who does not identify a parent, guardian or other
adult with whom he or she resides shall be referred to the
juvenile court or the Florida Department of Health and
Rehabilitative Services.
3. Changes o f custody. Where an adult other than a parent
has been awarded custody of or appointed guardian of a student
and one or both of the student's parents reside within the
- 27 -
Polk County school district, actual physical residence with
the custodian or guardian shall serve as the basis of the
student's assignment only where the appointment or award was
made on the basis of a determination of risk to the child by
the Department of Health and Rehabilitative Services or the
juvenile court; voluntary requests for changes in custody or
guardianship by parents residing elsewhere in the school
district shall not be effective for this purpose but the
student will be considered to reside with the parent[s].
4. School Board policy and procedures. The School Board shall
adopt such regulations, policies and procedures as may be
necessary to implement the letter and spirit of the provisions
of this Order regarding enforcement of attendance zones and
address verification. The School Board shall provide copies
of such regulations, policies and procedures to the other
parties (through counsel) within one hundred twenty days of
the approval of this Order, and the other parties shall notify
the Board within thirty days whether there is any objection to
any of the provisions. If either of the other parties raises
an objection, the parties shall consult and confer in an
effort to resolve their differences and, if unsuccessful, they
may petition the Court for appropriate relief to implement
this Order fully.
E. Transfers. In order to comply with its obligations under
the decrees of this Court, to utilize facilities efficiently,
and to further effective educational planning, the School
Board shall adopt and implement a policy defining and limiting
the availability of transfers to schools that serve areas
outside the attendance zone within which a student resides.
That policy shall provide for the following:
1. Inter-district transfers. Inter-district reassignments are
governed by Sections 230.23(4)(d) and 230.23(4)(m)(2), Florida
Statutes (1991). Section 230.3(4)(d) allows the parent or
guardian of regular education students to reguest an inter
district reassignment if there is an annual resolution by the
Polk County School Board and the school board of the affected
district[s] setting out the terms and conditions for which
such reassignments may be permitted. Section 230.23 (4) (m) (2)
applies to exceptional education students and requires
cooperative agreements between districts allowing for
reassignments where necessary to provide appropriate
educational placements. The Polk County School Board will not
approve inter-district reassignments under these provisions
which impede desegregation within either the Polk County
school district or any other school district.
29
2. Intra-district transfers. Intra-district transfers shall be
granted only if justified on non-discriminatory educational or
other grounds and, except for majority-to-minority transfers,
only if there is space available in the school to which
transfer is sought. Except for magnet school attendance,
intra-district transfers shall be granted for a period of one
school year only and renewal shall not be automatic but shall
reguire re-application.** Transfers shall be limited to the
following grounds:
a. Magnet school attendance. When a student is admitted
to a magnet school, the student will be treated as having
been granted a transfer from the school serving the
attendance zone within which he or she resides to the
magnet school during the period of the student's
attendance at the magnet school.
b. Exceptional student placement. When a student is
determined, in accordance with the Special Programs and
Procedures for Exceptional Students adopted by the Polk
County School Board, to require an educational placement
in a school other than the one serving the attendance
area of his or her residence, the student will be treated
"Pupils entering the 12th grade in the 1992-93 school
year who were granted a transfer out of their attendance zone
high school for the 1991-92 school year shall be afforded an
option to remain in the high school they attended in the 1991-
92 school year if they so desire.
30
as having been granted a transfer from the school serving
that attendance area to the school of placement.
c. Course availability. Transfers for the purpose of
enrolling in specific courses not offered at a student's
attendance area high school are not generally available
in the Polk County school system. The school district
agrees that if fifteen or more pupils at a high school
express a desire to enroll in a course not currently
available at the school, the district shall make the
course of study available to the students at that high
school, either by reassigning faculty or by assigning an
itinerant (part-time) instructor to teach the course at
the school. Where fewer than fifteen pupils seek a
specific course, the school district shall seek to meet
the demand at the attendance area high school, if
possible, or through other means (such as offering the
course among more than one school jointly at a common
location to which students would be transported as
necessary). If no other means is feasible, the school
district may grant a transfer for this purpose, subject
to the availability of capacity at the receiving school
and to the condition that such transfer not significantly
alter the racial composition of the sending or receiving
schools. Any such transfer shall be effective only for
the period of time during which the student is actually
enrolled in the course[s] unavailable at the attendance
area high school. The school district shall also retain
records, centrally aggregated, indicating for the 1992-93
and 1993-94 school years the number of requests for
courses unavailable at students' attendance area high
schools, showing the home high school, the race of the
student seeking the course, the identity of the course,
the high school at which the course was available, and
the disposition of each such request, and shall make such
records available to the other parties after March 1,
1993 and March 1, 1994, respectively. The parties shall
confer and consult concerning additional steps, if any,
that are required to ensure the availability of
curricular opportunities to students in Polk County high
schools on a nondiscriminatory and equitable basis. If
agreement cannot be reached, any party may seek such
relief from the Court as is appropriate.
d. Majority-to-minority transfer. A student who is of the
same race as the majority of pupils enrolled in the
school serving his or her attendance area may transfer to
a school serving the same grade level in which pupils of
the student's race are in the minority and the school
district shall provide transportation for the transfer.
- 32 -
A student may request a transfer from the school serving
his or her attendance area to another school even if the
above "majority-to-minority" conditions are not met, so
long as (a) the reassignment, if granted, will bring both
the sending and receiving schools closer to the system-
wide enrollment proportions at that grade level; (b)
there is space available in the receiving school; and (c)
the student or parent is able to provide his or her own
transportation.
e. District employees. During the 1992-93 school year,
employees of the Polk County school system shall be
permitted to transfer and enroll their children at the
school buildings to which the employees are assigned.
There shall be no other special transfer privilege
available for children of school district employees. The
School Board shall retain records indicating the number
of pupils, by race, grade, school of attendance and
school to which the student would otherwise have been
assigned, and shall provide this information in writing
to the other parties (through counsel) no later than
March 1, 1993. Thereafter, the parties shall consult and
confer to reach agreement on whether special transfer
privileges for employees' children should be continued,
modified, or eliminated in future school years. If
33
agreement cannot be reached, the School Board shall not
offer any special transfer privileges after the 1992-93
school year without first obtaining the approval of the
Court.
f. Hardship. Students who objectively demonstrate
that extreme hardship would result from being required to
attend the school serving the attendance zone in which
they reside may be granted a transfer to attend another
school under the following conditions only:
i. Availability of day care will not be
considered as a basis for a hardship.
ii. If a hardship transfer is requested for
medical reasons, the parent or guardian must
present testimony from the treating physician at an
evidentiary hearing, stating the specific medical
reasons that are related to factors at the
attendance-area school which require the
reassignment. (The hearing shall be conducted by
an administrator designated by the School Board,
who shall make a recommendation respecting the
transfer request to the Board; the parent or
guardian may request that the hearing be private.)
Proximity to the treating physician's office
location will not alone justify a reassignment
34
unless the medical problem is of sufficient
severity to qualify the student for exceptional
education within the meaning of P.L. 94-142, as
amended.
iii. If a hardship transfer is requested for
emotional or psychiatric reasons, the parent or
guardian must present testimony from the treating
qualified psychologist or psychiatrist at an
evidentiary hearing, explaining why reassignment is
necessary to resolve factors at the attendance-area
school that contribute to the student's problems.
(The hearing shall be conducted by an administrator
designated by the School Board, who shall make a
recommendation respecting the transfer request to
the Board; the parent or guardian may request that
the hearing be private.) At the beginning of each
semester, the treating psychologist, psychiatrist
or physician must provide a written update of the
student's progress and need, if any, to continue
the reassignment.
The school system shall retain records, centrally aggregated,
indicating, for each school year, the number and types of
transfers requested to and from each school, by race of
student, the name and address of the physician, psychologist
or psychiatrist (if any) supporting the request, and the
- 35 -
disposition of each such request, and shall make such records
available to the other parties for inspection upon reasonable
notice.
A. Defendants recognize their continuing obligation,
pursuant to the prior Orders of this Court, to undertake
school construction, expansion and renovation in a manner that
facilitates the desegregation of the Polk County school system
and the elimination of any remaining vestiges of prior
discrimination.
B. Defendants shall provide written notice of proposed
school construction, expansion, addition, or substantial
renovation or remodeling projects which change the size,
capacity or grade structure of a building to the other parties
(through counsel) at least sixty days in advance of acquiring
property for new facilities or of accepting bids for
construction work. Such notice shall include information
indicating how the construction, renovation or remodeling is
consistent with and facilitates the desegregation process in
the school system. If either of the other parties has an
objection to any construction, renovation or remodeling
project, they shall inform defendants (through counsel) of the
objection within thirty days of receiving such notice.
1 1 . School Construction
36
Thereafter, the parties shall consult and confer in an effort
to resolve their differences. If agreement cannot be reached,
the school system shall not undertake the construction,
renovation or remodeling to which objection was made without
first obtaining the approval of the Court.
C. Construction projects presently under way that are not
subject to the notice and consultation requirements of the
preceding paragraph include (1) a new elementary school
(capacity of 500 pupils) in Loughman; (2) a new elementary
school (capacity 500 pupils) in Frostproof; (3) an eight-
classroom addition at Jesse Keen Elementary School in
Lakeland; (4) a new high school in Lakeland; (5) a three-
classroom addition at Oscar Pope Elementary School in
Lakeland; (6) a seven-classroom addition at Crystal Lake
Elementary School in Lakeland; (7) a ten-classroom addition at
Dundee Elementary School; (8) a four-classroom addition at
Hillcrest Elementary School in Lake Wales; and (9) a new
facility to house the Polk County Opportunity Center, to
contain fifteen classrooms and to be located adjacent to the
Travis Vo-Tech School.
D. Defendants shall also provide the other parties with
information concerning the utilization of portable and
temporary buildings leased or owned by the school district.
Within sixty days from entry of this Order the School Board
37
will furnish counsel for the other parties with a listing of
all portable and temporary buildings currently in use within
the district, identifying the classroom capacity of the
buildings, the school or other site at which they are
currently located, and a brief description of current usage
(e.g., regular classroom, special education or Chapter 1 pull
out program; storage, etc.). Thereafter, no later than sixty
days prior to the opening of each school year the School Board
shall provide written notice to the other parties (through
counsel) of planned modifications in the location or use of
portable or temporary buildings (including acquisition of
additional such buildings) for the coming school year. If
either of the other parties has an objection to the use or
location of temporary or portable buildings they shall inform
defendants (through counsel) of the objection within thirty
days of receiving the information. Thereafter, the parties
shall consult and confer in an effort to resolve their
differences, and if agreement cannot be reached, the School
Board shall not make the changes to which objection was made
without first obtaining the approval of the Court. The School
Board shall also promptly notify the other parties in writing
(through counsel) of any exigent or emergency changes in the
location or use of such buildings during the school year.
38
III. Faculty and Staff
A. Assignment. The School Board recognizes its obligation to
assign faculty (including assignments of principals and
assistant principals) and both instructional and non-
instructional staff so that all schools (including the
Performing Arts Center program and other magnet schools) are
not racially identifiable ("in no case will the racial
composition of a staff indicate that a school is intended for
Negro students or white students." See Pitts v. Freeman, 887 F.2d
1438, 1447-48 (llth Cir. 1989), rev''d and remanded on other grounds,
___ U.S. ___, 60 U.S.L.W. 4286 (U.S. March 31, 1992)). The
parties recognize that substantial deviations from this goal
currently exist, and that due to the construction of new
facilities, the implementation of the middle school form of
grade organization, and the modification of attendance zones
required by this Order, as well as these current imbalances,
changes in faculty and staff assignments will be necessary in
the 1992-93 and 1993-94 school years. The School Board agrees
to make the necessary changes to meet its obligation each
year, utilizing the following techniques:
1. Consideration in filling vacancies. The School Board has
revised its employment procedures to require centralized
referral of qualified applicants to the school principal or
- 39 -
other school system employee who conducts interviews and makes
the initial hiring recommendation. The Board agrees that no
qualified applicant shall be excluded from referral because of
race; but the Assistant Superintendent for Personnel shall
make affirmative efforts to include in the group of applicants
referred for interviews, at any school in which a vacancy
occurs, qualified individuals of the racial group, if any,
that is underrepresented to such a degree that the school is
(or is in danger of becoming) racially identifiable. In
addition, school principals and other employees who conduct
interviews and make initial hiring recommendations will be
advised, at the time applicants are referred, of any such
underrepresentation and will be encouraged to consider this
factor, along with other factors, in making the initial hiring
recommendation.
2. Voluntary transfers. If the system is unable through the
process of filling vacancies, to meet its obligation to
maintain faculty (including assignments of principals and
assistant principals) and both instructional and non-
instructional staff assignments that do not result in racially
identifiable schools, the School Board shall encourage faculty
and staff members to transfer voluntarily to other schools in
order to assist the school district in fulfilling that
obligation.
40
3. Involuntary assignment. If use of the methods previously
described does not suffice, the School Board shall as a last
resort make involuntary transfers of faculty or staff in order
to avoid the operation of racially identifiable schools.
B. Hiring and recruitment. The School Board shall implement
affirmative, non-discriminatory steps designed to increase the
number of black faculty and staff who are recruited and hired.
For example, the district shall inform the placement offices
and education departments of all historically black colleges
in the States of Florida, Alabama, Georgia and Louisiana that
offer programs of teacher training of all vacancies for
professional employment in the system.
1. Workforce utilization analysis. The Assistant Superintendent
for Personnel shall annually conduct a workforce utilization
analysis for each school and workplace site (e.g., area
administrative office) and for the school district as a whole
to determine the number and proportion of employees of various
racial and ethnic origin in each of the following categories:
(a) officials, administrators and managers; (b) principals,
assistant principals, school deans, etc.; (c) full-time
classroom teachers; (d) professional staff assigned to special
instructional programs (e.g., exceptional student education,
41
gifted educational programs); (e) other professional staff;
and (f) non-professional staff.
2. Labor market analysis. The Assistant Superintendent for
Personnel shall periodically (and in no event less than every
three years) prepare or update a labor market analysis
estimating the potential number of persons of different racial
and ethnic origin available in the relevant labor market area
for the various categories of employment within the school
system. (The parties recognize that the relevant labor market
varies in geographical area; for example, the school district
would be expected to recruit administrators and teachers from
a much broader area than cafeteria workers.) For professional
employees, including managerial and administrative employees,
the analysis shall include estimates for the southeastern
United States and graduating classes at appropriate
institutions of higher education in that area in the latest
year for which such figures are available. For all other
employees the analysis shall include estimates for the Polk
County labor market area.
3. Applicant flow data. The Assistant Superintendent for
Personnel shall annually prepare an analysis of applicant flow
for the preceding school year, indicating by category of
employee the number of individuals of different racial and
42
ethnic origin (a) who were individually contacted by a
representative of the school system for the purpose of
recruitment; (b) who applied for a vacant position or
positions in the school system following such recruitment
contact; (c) who applied for a vacant position or positions in
the school system without such recruitment contact; (d) who
were referred by the central office for an interview by the
school system employee making the initial hiring
recommendation; (e) who received an initial hiring
recommendation following an interview; (f) who were
subseguently recommended for hiring by the Superintendent; (g)
who were hired by the School Board; and (h) who accepted
employment with the school system.
4. Comparative analysis. The Assistant Superintendent for
Personnel shall annually prepare a report for the School Board
comparing the labor market availability of black persons in
the various job categories with the most recent applicant flow
data and with current workforce utilization within the system.
The report shall include specific recommendations for
affirmative, non-discriminatory steps (such as targeted
advertising of vacancies, intensive recruitment and outreach,
cooperative orientation and training programs with
institutions of higher education, etc.) to be implemented to
eliminate underrepresentation of gualified black persons in
43
any job category compared to their availability in the labor
markets specified above. The report shall be made available
to the other parties for inspection upon reasonable notice.
C. Promotions. The School Board recognizes its obligation to
implement a fully non-discriminatory system of advancement and
promotion of its employees as well as the educational
desirability of having a multi-racial workforce throughout all
categories of employment. In making promotion decisions among
qualified applicants, the staff and Board will consider, among
other factors, the results of the annual workforce analyses.
D. Staffing o f magnet schools. When existing school facilities are
converted to use as magnet schools, the policy of the Polk
County School Board with respect to staffing is to treat the
former school as being closed and the magnet school as a newly
constructed facility which is being opened, subject to the
following provisions:
1. Retention o f employment. No employee who was assigned to
the former school shall be terminated from employment with the
system solely as a result of the conversion. Rather (absent
some other justification for a change in employment status),
all employees who were assigned to the former school will be
offered positions that are equivalent (in areas such as rank
and salary) to the positions they held at the former school.
44
2. Selection o f magnet school s ta ff. All positions to be filled
at the magnet school will be advertised (including any special
criteria established by the district for magnet school staff).
Employees assigned to the former school prior to its
conversion to a magnet shall be eligible to apply for
positions at the magnet school. Selection among applicants
for magnet school positions shall be made on a
nondiscriminatory basis but one factor in the selection
decision will be the system's commitment to having an
integrated faculty and staff at magnet schools, as at other
schools in the system.
3. Reduction in fo rce. If the conversion to magnet schools
results in a reduction in force in any job category or
categories within the school district, that reduction in force
shall be governed by the principles applicable to
desegregation-related reductions in force as announced in
Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th
Cir. 1969) and its progeny.
E. Other changes required by implementation o f decree. No professional
or non-instructional staff member shall be terminated from
employment with the system nor be subjected to a loss of rank
or salary solely as a result of any other changes in
assignment, utilization, etc. resulting from implementation of
- 45 -
this decree or of specific measures adopted by the School
Board to comply with the provisions of this decree or other
outstanding Orders of the Court in this case. If actions
taken to comply with this decree or other outstanding Orders
of the Court result in a reduction in force in any job
category or categories within the school district, that
reduction in force shall be governed by the principles
announced in Singleton v. Jackson Municipal Separate School District, 419 F.2d
1211 (5th Cir. 1969) and its progeny.
A. The School Board is currently revising its student
selection procedures for the gifted program pursuant to Fla.
Admin. Code § 6A-6.03019(2)(b).
B. The parties recognize that under the procedures in effect
for the gifted program in prior years, black students were
underrepresented in gifted educational programs in Polk County
compared to their proportion of system-wide enrollment and few
black professional employees have been assigned to these
programs. The Board agrees that effectuation of the new
student selection procedures should be accompanied by
affirmative efforts to identify, recruit and place eligible
minority students in gifted programs, and that this is
particularly critical for full-time gifted programs that may
IV. Gifted Program
46
be offered at specific schools in order to avoid within-school
isolation or segregation. The Board further agrees that
minority student participation in gifted programs will be
enhanced by increasing the number of qualified minority
professional employees assigned to these programs and will
undertake affirmative recruitment and other steps to
accomplish this increase.
C. When drafting of the new student selection procedures has
been completed, they will be furnished to the other parties
(through counsel); if there is any objection, the parties
shall consult and confer in an effort to resolve their
differences.
D. The School Board shall maintain data (for a period of at
least five years) reflecting, for each school year, the number
of pupils, by race, who are (1) evaluated by school personnel,
(2) identified, and (3) placed in (a) full-time and (b) part-
time gifted programs and shall make those data available for
inspection by the other parties upon reasonable notice.
A. The parties recognize that black students in Polk County
have disproportionately been identified and placed in classes
for the Educable Mentally Handicapped compared to their
- 47 -
V. Special Education
proportion of system-wide enrollment, that white students are
underrepresented in these classes and somewhat
disproportionately identified as having Specific Learning
Disabilities, and that few black professional employees have
been assigned to the district's exceptional student education
programs.
B. The School Board is committed to accurate, non-
discriminatory assessment, identification and placement of
exceptional students and is particularly concerned about the
placement of minority pupils in special education classes.
The parties have agreed to continue to evaluate the district's
program, to exchange information, and to consider
modifications of the Board's Special Programs and Procedures
for Exceptional Students that may be appropriate (for example,
to identify assessment or evaluation instruments particularly
suited for use with minority students). Further, the School
Board will undertake affirmative recruitment and other steps
to increase the number of minority professional employees
assigned to exceptional student education programs.
C. The School Board shall maintain data (for a period of at
least five years) reflecting, for each school year, the number
of pupils, by race, who are (1) screened by school personnel,
(2) referred for evaluation by school personnel, (3)
identified, and (4) placed in each category of special
48
education program operated by the school system and shall make
those data available for inspection by the other parties upon
reasonable notice.
A. The parties recognize that successful desegregation of
the Polk County schools requires the fair and
nondiscriminatory administration of discipline policies
embodied in the Student Code of Conduct, and that a greater
proportion of black pupils have been subjected to disciplinary
actions than their proportion of system-wide enrollment.
B. In order more fully to analyze the administration of the
Student Code of Conduct and to determine whether modifications
are appropriate, the parties agree that the School Board shall
retain data (for a period of at least five years), centrally
aggregated, indicating for each school year, the number of
pupils, by race, who are subjected to disciplinary action.
These data shall be organized by school and type of
disciplinary sanction (e.g., corporal punishment, in-school
suspension, work detail, alternative education placement, out-
of-school suspension, expulsion) and shall include a narrative
description or categorical identification of the specific
conduct which gave rise to the disciplinary action and the
identity of the staff member at the school who referred the
VI. Student Discipline
49
pupil for disciplinary action or who administered the
disciplinary sanction if there was no referral. Within sixty
days after the entry of this Order, the school district shall
provide the other parties (through counsel) for their review
with a written description of the categories of offenses or
conduct, and the range of penalties therefor, by which the
data will be organized. The school district shall make data
for the 1992-93 school year available to the other parties
promptly after they have been compiled, and thereafter the
parties shall consult and confer with respect to the need for
any procedural or substantive modifications to assure
nondiscriminatory treatment of all students.
C. The School Board further agrees that it shall retain at
each school (for a period of at least five years) the data
described in the preceding paragraph concerning individual
disciplinary actions at that school. School principals shall
be instructed periodically to review those data to determine
whether there are any patterns of substantial over-referral
(especially of black pupils) or non-equivalent sanctions for
similar offenses that indicate the necessity for counselling
and assistance to the staff member.
50
VII. Condition o f Facilities
The parties are examining data on recent years7 capital
expenditures including at formerly all-black schools and
schools located in predominantly black residential areas. The
parties agree to confer and consult with respect to the need,
if any, for further expenditures to assure that all buildings
are maintained and renovated at the same level consistent with
their age, structural limitations, etc.
VIII. Seth McKeel Junior High School
The school district shall conduct a comprehensive study
of the present condition of the facilities, program and
staffing at Seth McKeel Junior High (Middle) School and shall
present to the other parties, through counsel, no later than
March 1, 1993 a plan for such enhancements to be placed at the
school (which may include special programs or thematic
emphases), as will ensure that educational opportunities for
students at this school are equal to those available at other
middle schools in the system. Implementation of such a plan
shall commence in the 1993-94 school year. If either of the
other parties objects within thirty days to the contents of
the plan, the parties shall consult and confer in an effort to
resolve their differences; if agreement cannot be reached, any
party may seek such relief from the Court as is appropriate.
51
IX. In-Service Training
A. The School Board shall conduct pre-service and in-service
training to familiarize all staff with the design of the
magnet schools, magnet program goals and activities,
school/community relations aspects of magnet programs, and
overall implementation and evaluation of magnet schools.
B. The School Board shall conduct pre-service and in-service
training for staff on a district-wide basis in human relations
and instructional strategies that are particularly suitable
for diverse student populations, and shall consult the
Southeastern Desegregation Assistance Center funded under
Title IV of the Civil Rights Act of 1964 for assistance in
undertaking this training.
C. The school district is also committed to the development
throughout the system of a multi-cultural curriculum and
appropriate supportive activities for staff members to assist
them in implementing that curriculum.
X. Periodic Consultation and Reporting to Court
The parties, through counsel, shall meet and confer at
least annually (between May 15 and June 30) to review the
status of implementation of the provisions of this Order and
the information produced or maintained thereunder and shall
- 52 -
jointly report to the Court by July 15 respecting any
modifications of the Order which appear necessary or
appropriate to achieve its purposes. The reporting
requirements of prior decrees and Orders entered by the Court
in this action shall also remain in effect.
United States District Judge
Approved as to form:
/s/ Larry R. Jackson
Attorney for Plaintiffs
/s/ C.A. 3oswell. Jr.
Attorney for Defendants
/s/ Sandra Lynn Beber____
Attorney for United States
53
jointly report to the Court by July 15 respecting any
modifications of the Order which appear necessary or
appropriate to achieve its purposes. The reporting
requirements of prior decrees and Orders entered by the Court
in this action shall also remain in effect.
United States District Judge
The parties, by their undersigned
counsel, assent to the entry of this
Order and to all of the terms and
recitations contained therein.
/s/ Larry R. Jackson
Attorney for Plaintiffs
/s/ C .A. Boswell, Jr.
Attorney for Defendants
/s/ Sandra Lynn Beber
Attorney for United States
- 53 -
SUBSTITUTE SIGNATURE PAGE TENDERED AT 6/5/92
_____________ HEARING, SEE R2 - 53-54__________
IO 72A
ev. 8/82)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA 92 JUL - 9 AM ?■* CO
TAMPA DIVISION
lLE/:” L' - i - . , u . i . - ’ T ' < " ■ T
• n v itu Z . j i - j i . i rT\wpf -| — ..
HERMAN HENRY MILLS, JR., et al.,
Plaintiffs,
-vs- CASE NO. 63-150-CIV-T-23
THE SCHOOL BOARD OF POLK COUNTY,
FLORIDA, et al.,
Defendants.
./
ORDER
This action is before the Court pursuant to a "Motion for
Further Relief" filed by the plaintiffs on January 2, 1992. The
"Motion for Further Relief" is the most recent submission by the
plaintiffs in this case, which now rapidly approaches its thirtieth
year of pendency in this Court. The "Motion for Further Relief"
has resulted in a stipulation among counsel for the plaintiffs; the
School Board of Polk County, Florida, and other defendants; and the
United States of America, acting through the Department of Justice.
The stipulation assumes the form of a proposed order, which the
parties jointly request this Court enter as the order of this
Court.
This Court has carefully evaluated the parties' proposed order
and, on June 5, 1992, conducted a hearing for the purpose of
further exploring the meaning and application of the proposed
order. Additionally, the Court has reviewed in detail the
(g)
voluminous record compiled in this case since 1963, including data
compilations, maps, charts, legal memoranda, and other matters that
evidence the progress of this action. Finally, the Court has
received, read, and remains mindful of correspondence received from
citizens of Polk County, who have expressed a variety of under
standable concerns and reservations about the plans for the school
system to which their children are assigned.
With the exceptions enumerated below, the Court today adopts
the parties' proposed order, which has been carefully and skill
fully drafted, revised, and explained by Larry R. Jackson and
Norman J. Chachkin, who serve as principal counsel for the plain
tiffs; Sandra L. Beber, who represents the Department of Justice
of the United States of America; and Clarence A. Boswell, counsel
for the defendants. The Court is respectful of the skill, dili
gence, and persistence displayed by all counsel in their effort to
achieve a workable accommodation with respect to a perplexing prob
lem involving legal and social policy, the expenditure of public
funds, the logistics of administering a large and evolving educa
tional institution and its component parts, and the inevitable
disputes and conflicts that accompany a matter that touches a
county's children, their education, their careers, and the doings
of their everyday lives.
Accordingly, the Court ADJUDGES:
1. Subject to the terms of paragraphs 2 through 4 below,
the Court adopts as an order of this Court the proposed order
submitted to this Court and inscribed with this representation:
"The parties, by their undersigned counsel, assent to the entry of
2
this order and to all of the terms and recitations contained
therein." The Court retains jurisdiction in this action to enforce
this order and the Constitution and laws of the United States as
interpreted by the Supreme Court of the United States with respect
to the establishment of a unitary school system in Polk County,
Florida. Requests for further relief or for enforcement of the
order may occur by motion from time to time. Pursuant to the
Constitution and laws of the United States, the order of this Court
shall be regarded by all authorities as preemptive of any contrary
policy, rule, or the like, which might limit, prevent, or impede
its full implementation.
2. The Court retains jurisdiction to assess fees and costs
upon the submission of an appropriate motion, supporting authority,
and documentary evidence in support of any material factual
allegations pertinent to determination of an appropriate award.
The Court orders the parties to determine whether appropriate fees
and costs are susceptible of award by stipulation. Absent a stipu
lation, the Court orders the parties to submit appropriate papers
specifying the factual and legal issues to be resolved as a neces-
sary precedent to the award of fees and costs. Any fee for
services with respect to or arising from the plaintiffs' January 2,
1992, "Motion for Further Relief" should occur within sixty (60)
days.
3. The parties are required to meet no less frequently than
once during each six (6) months beginning July l, 1992, and there
after until relieved of this obligation by the Court. Further, the
Par"ties are to file in this case a notice of their intent to meet,
0 72A
ev. 8/82)
-3-
including a statement that the meeting will be attended by
authorized representatives of each of the three distinctive
parties. Further, within thirty (30) days after any meeting that
occurred pursuant to the notice contemplated by the preceding
sentence, the parties shall file an explanatory report concerning
the meeting and including especially any areas of apparently
intractable disagreement that may require resort to this Court for
resolution. In addition, if an apparently intractable dispute
requiring judicial resolution occurs at any time, the parties are
to file, within thirty (30) days, a joint explanatory report
containing a description of the disagreement, the solutions
proposed by each party, the approximate court time required for any
appropriate hearing to resolve the dispute, and the parties'
consent to appear in court for the appropriate number of days for
resolution of that dispute within sixty (60) days, including a
listing of the days upon which all counsel are available. Because
of the nature of this dispute and its duration, counsel are
regarded as having a heightened responsibility to be available and
prepared for resolution of problems in a prompt manner, excepting
only extraordinary commitments elsewhere.
4. On page twenty-eight, in the third sentence of paragraph
four entitled "School Board Policy and Procedures," the words "and
spirit" are stricken, a correction to which counsel for all parties
expressed agreement on June 5, 1992. (Transcript at 54)
The Court again notes the pendency of this action for thirty
years. It is the constitutional obligation of this Court to assure
the establishment of a unitary school system for Polk County,
Florida. The Court expresses its resolve that this constitutional
obligation achieve fulfillment in the foreseeable future. In that
respect, the Court intends to more carefully monitor the progress
of the rather elaborate mechanism today adopted by this Court for
implementation by Polk County. At the June 5, 1992, hearing, all
counsel on behalf of their clients expressed extraordinary optimism
that unitary status could be achieved, notwithstanding a healthy
supply of difficult problems, in the foreseeable future, perhaps
(according to the United States and Polk County) upon the satis
factory implementation of the order adopted by this Court today
pursuant to the parties' consent. One thing is certain:
fsupervision of the Polk County school system by this Court should
not endure permanently. Applicable decisions of the Supreme Court
of the United States neither require nor encourage the perpetual
substitution of the federal judiciary for local school boards as
the authority responsible for supervising the day-to-day task of
educating children and young adults. If the parties cannot achieve
a unitary school system at the present level of federal super
vision, this Court will reluctantly but inevitably assume a
heightened role of supervision in order to assure compliance with
constitutional mandates at the earliest practical date. Similarly,
the Court will assume a heightened level of observation to
determine that no party makes unreasonable demands or erects
unreasonable barriers, which serve only to prolong dispute and
delay the accomplishment of both a unitary school system and the
-5-
consequent discharge of federal supervision in deference to
supervision by local elected officials. .
ORDERED in Tampa, Florida on Ju]/' , 1992.
Steven D. Merryday
United States District Judge
»
(0 72A
lev. 8/82)
- 6-
FILED 7/29/92
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HERMAN HENRY MILLS, JR., et al.,
Plaintiffs,
and
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
-vs- CASE NO. 63-150 Civ.-T-H
SCHOOL BOARD OF POLK COUNTY, FLORIDA, et al.,
Defendants.
-t----------------------- /
JOINT EXPLANATORY REPORT OF DISPUTED ISSUES
rursuant to paragraph (3) of the Order of this Court
entered July 8, 1992, adopting the proposed Order jointly
submitted by the parties, this explanatory report is submitted
to advise the Court of issues that have arisen in the course
of implementing that Order which will require resolution by
the Court. There are two such issues: (a) Bartow area
elementary school zones for 1992—93; and (b) enforcement of
attendance zones for 1992—93 throughout the school system.
A. Bartow rezoning
In paragraph I.A.9.C. of the Order (p. 18), the parties
recognized that elementary school zones in the Bartow area
would have to be reconfigured for the 1992-93 school year, for
two reasons: (a) to accommodate the transition to a middle
school form of grade organization, under which 6th grades
would be transferred from elementary schools to middle schools
including the newly opened Union Academy magnet middle school,
and (b) to achieve desegregation. (In the 1991—92 school
year, Gibbons Street Elementary School in Bartow, a formerly
all-black facility, had a 61% black enrollment, while Highland
City Elementary and Eagle Lake Elementary Schools — part of
the same administrative area established by the school
district for operational purposes — were 9% black and 8%
bla<pk, respectively.) Accordingly, paragraph I.A.9.C. of the
Order as submitted by the parties required the district to
submit proposed rezoning plans to the other parties by June 1,
1992.1
Promptly after this Court's approval of the Order on July
8, 1992, the school district submitted to counsel for the
other parties a rezoning plan for Bartow area elementary
schools that had been adopted by the School Board of Polk
County. This plan is described in the Memorandum to counsel
for plaintiffs and the United States from Assistant
Superintendent Bill Davies dated July 14, 1992, a copy of
which is attached hereto as Exhibit "A". (A map indicating *
:This timeline was of course extended by necessity
pending the Court's approval of the Order.
- 2 -
the location of the schools and zones is appended as Exhibit
"B. ")
Plaintiffs and the United States have indicated to the
School Board that they do not believe the plan meets the
requirements of the Fourteenth Amendment or the Order that the
Court has entered. They contend that the level of actual
desegregation which is likely to result from implementation of
this plan, as revealed in the projections prepared by the
school district, is unacceptable in light of the alternatives
which are clearly available to the school district. In
particular, they note that under the proposal adopted by the
School Board, some elementary schools would have substantially
higher minority student enrollments and be very substantially
under capacity (especially Bartow Elementary and Floral Avenue
Elementary Schools) while other facilities would be
significantly overcrowded with low minority enrollments
(especially Highland City Elementary School — more than 50%
over its capacity — and Alturas and Eagle Lake Elementary
Schools).2
2Plaintiffs and the United States contend that a pattern
of drawing zones creating over- and under-enrolled schools of
substantially differing racial composition has been recognized
by the federal courts as a classic method of maintaining
segregation in violation of the Constitution. E . g . , Morgan v .
H ennigan , 379 F. Supp. 410, 425-27 (D. Mass.), a f f ' d s u b nom.
Morgan v . K e r r i g a n , 509 F.2d 580 (1st Cir. 1974), c e r t ,
d e n i e d , 421 U.S. 963 (1975); K e y e s v . S c h o o l D i s t r i c t No. 1,
(continued...)
3
The School Board's position is that the plan the Board
has adopted is a reasonable measure that is adequately
responsive to the requirements of the Order without causing
undue disruption to established patterns of school attendance.
The parties have cooperated in producing information in
lieu of formal discovery and in defining the issues to be
presented to this Court. Specifically, plaintiffs requested
production of materials that were made available to the
Citizens Committee appointed by the School Board as part of
the process of fashioning its proposal for rezoning of
elementary schools in Bartow. These materials included an
alternative zoning configuration prepared by the staff for
consideration by the Committee that would achieve better
results than either the plan recommended by the Committee or
the plan adopted by the School Board. This zoning
alternative, including projected results, is described in the
Memorandum to counsel for plaintiffs and the United States
appended hereto as Exhibit "C" (along with a map of the zones
attached as Exhibit "D"). 2
2(...continued)
D e n v e r , 303 F. Supp. 279, 285, s u p p l e m e n t a l f i n d i n g s , 303 F.
Supp. 289, 290, 293 (D. Colo. 1969), a f f ' d , 445 F.2d 990 (10th
Cir. 1971), v a c a t e d and r em a n d ed on o t h e r g r o u n d s , 413 U.S.
189 (1973); c f . Lee v . Macon C o u n t y B o a r d o f E d u c a t i o n , 448
F.2d 746, 754 (5th Cir. 1971)(closing black school would have
put white school on double sessions).
4
Plaintiffs and the United States would point out to the
Court that even under this alternative, Stephens Elementary
School would be more than 200 pupils u n d er its capacity and
Floral Avenue would be more than 100 students un der its
capacity, while Highland City Elementary School would be more
than 100 students over its capacity and Alturas and Eagle Lake
Elementary Schools both over capacity.
Plaintiffs and the United States contend that a more
effective plan can be devised. However, in light of the short
time remaining before school opens for the 1992—93 school
year, they are prepared to accept, for the coming school year,
the school system staff plan presented to the Citizens
Committee with only the modification described in Assistant
Superintendent Davies' memorandum, involving the transfer of
34 additional white pupils from the Highland City zone to
either Stephens or Floral Avenue Elementary School.
Plaintiffs and the United States submit that the Court should
order such modifications to be made and the resulting zoning
configuration for Bartow area elementary schools implemented
by the School Board for the 1992-93 school year, requiring
that further modifications be developed for implementation in
the 1993-94 school year that will eliminate overcrowding and
under-utilzation of elementary school facilities in the Bartow
area.
5
B. A t t e n d a n c e z o n e e n f o r c e m e n t
Sections I.D. and I.E. of the jointly submitted Order
(pp. 25-36) require strict enforcement of attendance zones by
the Polk County Public Schools commencing with the 1992-93
school year, subject only to delineated grounds for transfers
(§ I.E.) and specified exceptions for pupils entering the
ninth and twelfth grades (5 I.A.9.b. n.* [p. 17], II.E.2. n.**
[p. 30]) . The School Board has requested that plaintiffs and
the United States agree to a further one-year exception for
all pupils previously granted out-of-zone transfers who will
atteynd schools other than those in Lakeland and Bartow (where
attendance zones are being reconfigured for the 1992-93 school
year) . The total number of such transfers is in excess of
1000 (see letter from Assistant Superintendent Davies to
counsel for the plaintiffs and United States dated June 23,
1992 and attached hereto as Exhibit "E").
The school district has produced data indicating that
most of these transfers would not have a significant racial
impact during the 1992-93 school year, except at Wilson
Elementary School in Lake Wales (see tables included in Mr.
Davies' July 14, 1992 Memorandum, attached hereto as Exhibit
"F") . However, plaintiffs and the United States have declined
to agree to such a modification. The position of these
parties is that the school district agreed in the proposed
- 6 -
Order to correct now the policy of liberal transfers that had
contributed significantly to the failure of earlier
desegregation efforts in this case, and that there are no
changed circumstances which warrant relaxation of that
requirement. The plaintiffs and the United States also
believe that modification of the requirement for enforcement
of attendance zones is particularly unwise at the commencement
of implementing the Order, especially in light of the
unacceptable zoning proposal adopted by the Board for the
Bartow area.
fThe School Board believes that a one-year exception to
the zone enforcement requirements for pupils who had already
been granted out-of-zone transfers in prior years, and
effective only for those areas of the school system whose
rezoning is being deferred under the Order until the 1993-94
school year, has virtually no impact upon desegregation and
will meaningfully increase public acceptance of the
desegregation Order and thus enhance the chances for its
successful implementation.
Conclusion
The parties respectfully submit these two issues to this
Court for resolution. They believe that these matters may
properly be resolved by the Court on the papers and exhibits
submitted herewith but are prepared to present testimony of
7
the Superintendent and other witnesses at a hearing if the
Court so desires. Counsel estimate that such a hearing should
not exceed a half day.
Should the Court wish to schedule a hearing, counsel
respectfully advise the Court that they are generally
available on any dates beginning August 3, 1992 except for the
following commitments that were already scheduled prior to the
time these matters arose and which cannot readily be
rescheduled:
August 6, 1992 — deposition of Dr. Larry Winecoff
f
in connection with Lee County school desegregation case
September 28—29, 1992 — Rosh Hoshanah religious
holiday (counsel for the United States unavailable).
October 1-2, 1992 — New York counsel for plaintiffs
will be out of the country.
In addition, New York counsel for plaintiffs and counsel for
the United States in this matter are also involved in B l a l o c k
& U n i t e d S t a t e s v . Lee C o u n t y S c h o o l B o a r d, No. 64-168-Civ-
FtM—K, in which proceedings before this Court in connection
with a school board motion for approval of modifications to
existing Orders may also be scheduled during the time period
described above. (Depositions in connection with that matter
are being taken in Fort Myers, Florida during the week of July
27, 1992.) These counsel are also involved in a number of
8
other school desegregation lawsuits in various states and
federal judicial districts and will promptly advise this
Court, through its law clerk, of any conflicts that may arise
between the submission of this pleading and the time that a
hearing before this Court is scheduled.
/s/ Larry R. Jackson
LARRY R . JACKSON
Suite 220-B
101 West Main Street
Lakeland, Florida 33801
(813*) 682-3111
JULIUS L. CHAMBERS
NORMAN J. CHACHKIN
99 Hudson Street, 16th fl.
New York, New York 10013
(212) 219-1900
Attorneys for Plaintiffs
Attorney for Defendants
Respectfully submitted,
JOHN R. DUNNE
Assistant Attorney General
Civil Rights Division
/s/ Sandra Lvnn Beber
JOHN R. MOORE
SANDRA LYNN BEBER
Attorneys
Civil Rights Division
U.S. Department of Justice
Washington, D.C. 20530
(202) 514-2192
ROBERT W. GENZMAN
United States Attorney
Attorneys for United States
oCHOOL B oard of f olk C ounty
P.0. BOX 391 • 1915 SOUTH FLORAL AVE. • BARTOW, FLORIDA 33830
813-534-2111 • Suncom 541-2111 • (FAX) 813-534-2360
JO H N A S T E W A R T EXHIBIT A
S up erin ten d e n t o f S chools July 14,1992
C A B O S W E LL . JR
S choo l B oard A ttorney
CHAIRMAN
D A N M O O D Y
n is m iC T 2 MEMORANDUM
N A N C Y S IM M O N S
D is in iC T 1
J . J . C O R B E T T TO: Sandra Beber
UISIRICT 1
R U B IE W IL C O X Norm an Chachkin
DISTRICT a
A N D R E A W H IT E L E Y
Larry Jackson
DISTRICT 5 ^
FROM: Bill DaviesVXssistant Superintendent
SUBJECT:
Management Systems
Bartow Desegregation Plans
We w ould like to have your decision on the plan as early as possible.
Teacher units, portable classrooms, and budgets cannot be allocated until
we know the distribution of students. Teachers will report on August 14.
I’nlk County Schools - 1
iin ci/uol opportunity
institution for education
ond employment
There are three proposals on the Bartow elementary desegregation plan.
Bartow has seven schools in the area. Four schools are located in Bartow: 1)
Gibbons Street (the formerly all-black school), 2) Bartow, 3) Floral Avenue,
and 4) J.E . Stephens. These schools are outside the city: 1) Highland City;
2) Eagle Lake, and 3) A lturas. There is also a b lack com m unity,
Gordonville/Gordon Heights, located north of the city containing 223 K-6
students. These students currently attend J.E . Stephens (153), Alturas (66),
and Highland City (5).
The proposals are as follows:
I. Citizens Committee
The Citizens Committee recommending desegregating Gibbons Street
and also racially balancing the remaining six schools as well. This
including 150 students from J.E. Stephens to Eagle Lake and Alturas and
moving 127 mostly white studen ts, residing so u th of 540A, from
Highland City to J.E . Stephens (approximately 5 miles a t the farthest
point). The purpose of the Highland City move w as to balance
enrollments between the two schools.
The plan Is as follows:
Seating
Capacity
1991-92
Current (K-6)
1992-93
Proposed (K-5)
School Building Enrollm ent % Black E nrollm ent % Black
Bartow 480 397 42% 216 42%
Floral Avenue 550 594 22% 432 41%
Gibbons Street 400 377 61% 401 33%
Alturas 350 420 15% 465 30%
Highland City 400 561 9% 491 19%
Stephens 675 625 49% 490 ' 31%
Eagle Lake 575 569 8% 672 22%
Total 3430 3543 3167“
M 2 A -72 / 1
2
II. Superintendent
The Superintendent rejected the Citizens Committee plan and did not
recommend moving the Highland City city studen ts to J.E . S tephens.
The S uperin tenden t recommended th is because of h is belief th a t
H ighland City is a sep ara te com m unity from B artow . His
recommendation was as follows:
Seating 1991-92 This
Capacity Current Proposal
School Building Enrollment % Black Enrollment % Black
Bartow 480 397 42% 303 40%
Floral Avenue 550 594 22% 389 42%
Gibbons Street 400 377 61% 400 33%
Alturas* 350 420 15% 496 19%
Highland City* 400 561 9% 623 18%
Stephens 675 625 49% 446 39%
Eagle Lake* 575 569 8% 639 20%
Total 3430 3543 3296**
•Share in 223 students from Gordonville/Gordon Heights.
••Includes out-of-zone transferred students back in their zoned schools.
III. School Board
The School Board rejected the Superintendent’s Plan. Acknowledging
th a t Gordonville/Gordon Heights studen ts had historically attended
school in Bartow, they approved a freedom of choice plan for these
studen ts in three Bartow schools—J.E . Stephens, Floral Avenue, and
Bartow; and three area schools—Eagle Lake, Alturas, and Highland City.
The Gordonville/Gordon Heights s tuden ts will be perm itted in the
Bartow schools as long as the racial balance of these schools does not
exceed 48% black. The plan presented on the following page shows the
three Bartow schools with 48% black because the staff believes th a t is
where they will choose to attend.
M 2 A -7 2 /2 3
Plan Approved by School Board:
---- -------------- •
Seating 1991-92 1992-93
Capacity Current Propo sed
School Building Enrollm ent % Black Enrollm ent % Black
Rartnw 480 397 42% 345 48%
Floral Avenue 550 594 22% 429 48%
nihbnns Street 400 377 61% 400 33%
Alhiras 350 420 15% 375 8%
Highland CitV 400 561 9% 632 11%
Rfpnhpns 675 625 49% 525 48%
Pndlp T .aIcp 575 569 8% 590 13%
Total 3430 3543 3296
M 2 A -7 2 /3 4
EXHIBIT "B" TO JOINT EXPLANATORY REPORT
OMITTED
(MAP)
IN PRINTING
EXHIBIT C
IX): Sandra Beber
Norman Chachkin
Larry Jackson
FROM: Bill Davies, Assistant Superintendent - Management Systems
SUBJECT: Bartow Desegregation Plan (Staff)
The following plan was used as a basis for the committee plan forwarded to you last week. It
was prepared by the staff and had the following objectives:
1. Desegregate Gibbons Street
2. Equalize racial balances In Bartow to the extent practicable
Note: Bartow schools are 33% Black. All seven schools are 28% Black. The racial
balances In this plan range between 18% to 38%.
3. Equalize transportation for desegregation purposes between Black and White communities
to the extent practicable.
The plan distributes 223 K-5 students In Gordonville/Gordon Heights to Eagle Lake (79),
Alluras (72), and Highland City (72). If more students need to be taken from Highland City,
would recommend Waterwood, where there are 34 students (White) located at the end of 540A on
the east sloe of U.S. 98.
If you have questions call me at 813-534-0693.
Seating
Capacity
1991-92
Current (K-6)
1992-93
Proposed (K-5)
School Building Enrollm ent % Black Enrollm ent % Black
Bartow 480 397 42% 403 38%
Floral Avenue 550 594 22% 426 38%
Gibbons Street 400 3 77 61% 394 35%
Alturas 350 420 • 15% 405 18% '•
Highland City 400 561 9% 508 22%
Stephens 675 625 49% 448 34%
Eagle Lake 575 569 8% 607 20%
Total 3430 3543 28% 3191 28%
M 2 A -7 7 /2
EXHIBIT "D" TO JOINT EXPLANATORY REPORT
(MAP)
OMITTED IN PRINTING
EXHIBIT E
S chool B oard o f -P olk C ounty
P.0. BOX 391 • 1915 SOUTH FLORAL AVE. • BARTOW, FLORIDA 33830
813-534-2111 • Suncom 541-2111 • (FAX) 813-534-2360
Ju n e 23, 1992
Norman J . Chachkin, Esq.
Legal Defense Fund
99 Hudson Street, 16th Floor
New York, NY 10013
Sandra Lynn Beber, Esq.
Educational Opportunities Litigation Section
Civil Rights Division
US Department of Justice
10th and Pennsylvania Avenue, NW
Washington, DC 20064
R U B IE W IL C O X f
district Larry R. Jackson, Esq.
A N D R E A W H IT E L E Y 101 West Main Street
msiRicT Lakeland, FL 33801
Re: Mills v. Polk County School Board
No. 63-150 Civ. - TH (M:D. Fla)
Dear Colleagues:
I have conferred with Mr. Boswell on the attached letter and he is
aware of the contents.
The Consent Decree imposes restrictions on out-of-zone transfers
w ith the exception of m agnet schools, exceptional s tu d en t
placement, course availability, district employees to the school in
which they are assigned, and hardship (physical or emotional, bu t
not day care (pages 30-34).
The Polk County School Board is requesting approval to permit out-
of-zone transfers in selected communities for 1992-93 school year
only. The communities and number of current out-of-zone transfers
is as follows:
JO H N A S T E W A R T
S u p erin ten d e n t o f Schools
C .A B O S W E LL . JR
S choo l B oard A ttorn e y
CHAIRM AN
D A N M O O D Y
DISTRICT ?
N A N C Y S IM M O N S
DISTRICT 1
J . J C O R B E T T
DISTRICT 3
Communitv Schools Transfers
Aubumdale 5 182
Winter Haven 10 387
Frostproof 3 202
Lake Wales 7 267
Polk County Schools - Lake Alfred 1 54
an equal opportunity Ft. Meade 4 17
institution for education
and employment
Mulberry 4 56
M 2 A -6 1 /1
1
The rationale for this request is as follows:
1. These com m unities have not been engaged in school desegregation
activities in recent years as have Lakeland, Bartow, and Haines City.
Therefore, the citizens have not had the benefit of the publicity
connected with desegregation including the prohibition on out-of-zone
transfers.
2. Many of these transferred students may change schools three times in
three years if required to attend the zoned school, i.e., transferred
school in 1991-92, zoned school in 1992-93, and changed school from a
desegregation change in 1993-94.
3. Approving child care and other transfers for 1992-93 will enable the
School Board to advise each person that this will be the final year for
such a transfer and provide a year for them to make other arrangem ents.
I suggest on the attached page, amended language to page 30 of the
Consent Decree. I will call each of you next week regarding your position on
this m atter. P ursuant to your approval, we will be pleased to forward the
change to Judge Merryday for his approval.
Sincerely,
Bill Davies
Assistant Superintendent
Management Systems
xc: John A. Stewart
C.A. Boswell, Jr.
M 2 A -6 1 /2 2
Amendment to page 30
2. Intra-district transfers. Intra-district transfers shall be granted
only if justified on non-discriminatoiy educational or other
grounds and, except for majority-to-minority transfers, only if
there is space available in the school to which the transfer is
sought. [There will be two specific exceptions to this prohibition
for the 1992-93 school year as follows: 1. Students attending
srhnol in Winter Haven. Aubumdale, Lake Wales. Frostproof,
Rahsnn Park. Ft. Meade. Mulberry, and Lake Alfred who have an
approved transfer in 1991-92. and continue to be eligible under
those same conditions in 1992-93. shall be granted approved
transfers. 2. Students entering the 12th grade in the 1992-93
scliool year who were granted a transfer out of their attendance
zone high school for the 1991-92 school year shall be afforded an
option to remain in the high school they attended in the 1991-92
school year if they so desire.] (Item 2 is the footnote at the bottom
of page 30.)
Expect for magnet school attendance, intra-district transfers
shall be...
M 2 A - 6 5 / 1
3
EXHIBIT F
S chool B oard of "Polk C ounty
P.0. BOX 391 • 1915 SOUTH FLORAL AVE. • BARTOW, FLORIDA 33830
813-534-2111 • Suncom 541-2111 • (FAX) 813-534-2360
July 14, 1992
JO H N A S T E W A R T
S u p erin te n d e n t o t S chools
C .A. B O S W E LL . JR
S chool B oard A ttorn e y
CHAIRM AN
D A N M O O D Y
DISTRICT 2
N A N C Y S IM M O N S
D IS T R IC T 1
J . J . C O R B E T T
DISTRICT 3
R U B IE W IL C O X
DISTRICT 4
A N D R E A W H IT E L E Y
DISTRICT 5
Norman J . Chachkin, Esq.
Legal Defense Fund
99 Hudson Street, 16th Floor
New York, NY 10013
Sandra Lynn Beber, Esq.
Educational Opportunities Litigation Section
Civil Rights Division
US Department of Justice
n o th and Pennsylvania Avenue, NW
Washington, DC 20064
Larry R. Jackson, Esq.
101 West Main Street
Lakeland, FL 33801
Re: Mills v. Polk County School Board
No. 63-150 Civ. - TH (M:D. Fla)
Dear Colleagues:
Pursuant to your request, the following chart presents the racial
balance of the schools tha t we requested approval to permit out-of
zone transfers for the 1992-93 school year only. The attached
chart shows the racial balance of the school with in /o u t transfers
and the racial balance of the schools without the transfers. Columns
1, 3, and 5 show the enrollment and racial balance with the
transfers. Columns 2, 4, and 6 show the schools without transfers.
You will note th a t the racial balance of the schools is not
substantially affected with the exception of Janie Howard Wilson in
Haines City 37% to 43% black.
This waiver will be approved for one year only.
Thank you for your consideration of this request.
’oik County Schools -M 2A-75/I
n equal opportunity
istitulion for education
nd employment
South Central Area
(South Winter Haven, Ft. Meade)
S ch ool
W hite Black Percent
With
T ransfers
W ithout
T ransfers
With
T ransfers
W ithout
T ransfers
With
T ransfers
W ithout
T ransfers
Alturas Elem. 350 376 60 60 14.63 13.76
Bartow Elem. 216 182 165 147 43.31 44.68
Bartow Jr. 460 465 210 211 31.34 31.21
Bartow Sr. 606 615 285 282 31.97 31.44
Eagle Lake Elem. 511 517 43 45 7.76 8.01
Floral Ave. Elem. 459 378 130 121 22.07 24.25
*Ft. Meade Jr.-Sr. 351 343 106 106 23.19 23.61
*Ft. Meade Middle 187 187 50 49 21.10 20.76
Gibbons St. Elem. 150 208 238 235 61.34 53.05
Highland City Elem. 508 556 49 57 8.80 9.30
*Lake Shipp Elem. 798 802 38 44 4.55 5.20
*Lewis Elem. 484 485 119 121 19.73 22.16
^Riverside Elem. 180 179 69 68 27.71 27.53
*Snively Elem. 428 420 9 9 2.06 2.10
Stephens Elem. 319 333 300 284 48.47 46.03
Union Academy 272 271 118 116 30.26 29.97
*Wahneta Elem. 568 562 2 2 0.35 0.35
* Review only checked schools; remaining schools no transfers due to Bartow desegregation plan.
M2A-55/ 1
North Central Area
(Winter Haven, Aubumdale, Lake Alfred)
U>
School
W hite Black Percent
With
Transfers
W ithout
T ransfers
With
T ransfers
W ithout
T ransfers
With
Transfers
W ithout
T ransfers
Auburndale Central Elem. 337 319 108 101 24.27 24.04
A ubum dale Sr. 1355 1323 217 214 13.80 13.92
Boswell Elem. 555 512 46 45 7.65 8.08
Brigham Elem. 379 391 481 462 55.93 54.16
Caldwell Elem. 571 567 63 64 9.94 10.14
Denison Jr. 686 648 138 130 16.75 16.71
Elbert Elem. 481 486 348 367 41.98 43.02
Garden Grove Elem. 777 780 80 86 9.33 9.93
Garner Elem. 369 365 314 299 45.97 45.03
Inwood Elem. 332 322 122 132 26.87 29.07
Jewett Elem. 143 150 112 112 43.92 42.75
Jewett Jr. 484 496 145 146 23.05 22.74
Lake Alfred Elem. 436 405 198 191 31.23 32.05
Lena Vista Elem. 756 767 79 84 9.47 9.87
Stambaugh Middle 1145 1106 169 168 12.86 13.19
Westwood Jr. 473 515 96 102 16.87 16.53
Winter Haven Sr. 1332 1349 287 290 17.73 17.69
M2A-55/2
East Area
( H a in e s C i t y , L a k e W a le s , B a b s o n P a r k , F r o s t p r o o f )
School
W hite Black Percent
With
T ransfers
W ithout
T ransfers
With
T ransfers
W ithout
T ransfers
With
T ransfers
W ithout
T ransfers
Alta Vista Elem. 365 362 124 123 25.36 25.36
Babson Park Elem. 414 381 37 32 8.20 7.75
Bethune Elem. 244 264 382 381 61.02 59.07
Boone Middle 502 501 193 196 27.77 28.12
Davenport Elem. 882 870 244 248 21.67 22.18
Dundee Elem. 513 527 173 176 25.22 25.04
Eastside Elem. 585 585 231 231 28.31 28.31
Frostproof Elem. 852 850 129 129 13.15 13.18
Frostproof Jr.-Sr. 546 431 92 87 14.42 16.80
Haines City Sr. 858 872 420 420 32.86 32.51
Hillcrest Elem. 400 356 225 228 36.00 39.04
J.H. Wilson Elem. 324 420 246 245 43.16 36.84
Jenkins Elem. 357 356 184 181 34.01 33.71
Lake Wales Sr. 744 817 361 365 32.67 30.88
McLaughlin Middle 754 798 324 326 30.06 29.00
Polk Ave. Elem. 279 249 200 190 41.75 43.28
Spook Hill Elem. 385 386 125 128 24.51 24.90
M2A-55/3
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA V? AUG i 0 AH
TAMPA DIVISION
HERMAN HENRY MILLS, JR., et al.,
Plaintiffs,
-vs- — CASE NO. 63-150-CIV-T-23
THE SCHOOL BOARD OF POLK COUNTY,
FLORIDA, et al., *
* ORDER
This action is before the Court pursuant to a "Joint
Explanatory Report of Disputed Issues" filed on July 29, 1992. The
report discusses issues involving (1) the Bartow area elementary
school zones for 1992-93 and (2) the enforcement of attendance
zones for 1992-93 throughout the school system. The Court also
received correspondence from Neal L. O'Toole of Frost & O'Toole,
P.A., on behalf of the Waterwood Home Owner's Association of Polk
County, in which correspondence counsel addressed the plight of 34
children residing in the Waterwood Subdivision of Highlands City.
The Court has received numerous telephone calls and letters from
interested individuals and groups.
The conclusion to the joint explanatory report, signed by
authorized representatives of all parties, states that "[The
parties] believe that these matters may properly be resolved by the
Court on the papers and exhibits submitted herewith . . . ." In
short, the parties neither request a hearing nor submit evidence
other than the stipulated fact statements contained in the joint
explanatory report. Of course, the Court is unaware of the
evidence that an evidentiary hearing might reveal, but for the
purpose of this order, the Court accepts the parties agreement to
dispense with both a hearing and the development of a detailed evi
dentiary record. The imminent resumption of school attendance also
suggests that conduct of an evidentiary proceeding is impractical.
Without respect to the wisdom of the decision to dispense with an
evidentiary hearing, both the Court and the public are entitled to
consider matters of such importance on a more contemplative basis
and on*a more relaxed schedule.
With respect to the issues submitted to the Court in the joint
explanatory report, the Court ADJUDGES as follows:
1. The rezoning plan adopted by the School Board of Polk
County, Florida, and described in the memorandum of July 14, 1992,
from Assistant Superintendent Bill Davies and attached to the joint
explanatory report as Exhibits A and B shall remain in force as
adopted by the School Board for the 1992-93 school year.
2. The request of the School Board of Polk County to modify
the jointly submitted order so as to allow out—of—zone transfers
granted in 1991-92 to be continued for another school year is
granted.
3. During the proceedings that resulted in entry of this
Court's order of July 8, 1992, the parties repeatedly assured the
Court of their mutual good faith, full disclosure, optimism with
2
respect to the potential for settlement of- foreseeable disputes,
and their personal and institutional commitment to resolving issues
pursuant to the July 8, 1992, order by sensible, flexible, and
reasoned discussion. Obviously, within only days after entry of
the July 8, 1992, order, the parties deadlocked in controversy over
an issue that, assuming the bona fides of the parties' earlier
representations, should have been apparent to all concerned. Based
on the record, the Court is unable to determine whether or how this
stalemate occurred and who, if anyone, is at fault. However, one
thing is certain. When the onset of a school year is imminent,
everyone's options become limited, and in all probability, a result
hastily achieved on an incomplete record is not the best result for
the students of Polk County, whose interests are regarded by this
Court as preeminent in this controversy. The Court views with
absolutely no amusement the observation included in the plaintiff's
proposed order that "The parties plaintiff and defendant take
positions that are polar opposites, leaving the Court with a
difficult responsibility." This circumstance should not recur.
In that respect, the deputy clerk is instructed to set this case
for a one-half day status conference not later than November 1,
1992, and to command the presence of both counsel and repre
sentatives of each party for the purpose of exploring the prepara
tion and implementation of a schedule for decision making and
review. If no mutually agreeable date is available, the deputy
clerk shall secure the attendance of necessary parties by Court
process. No continuance will be granted. Leaving these matters
-3-
for determination until the last moment is"unwise and impractical
and leaves the public with the justifiable suspicion that the
welfare of the students of Polk County, Florida, is being attended
with something less than the heightened level of attention and
consideration to which it is due. This Court will not countenance
activity by counsel or the parties that lends credence to that
perception and will invoke its supervisory authority and its
punitive power if necessary.
ORDERED in Tampa, Florida on ~ ‘ .
even D. Merr^
States Distr:
Steven D . Merir}
United States Distr; 'Judge
-4-
FILED 8 / 2 0 / 9 2
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HERMAN HENRY MILLS, JR., et al.,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
-vs- CASE NO. 63-150-CIV-T-23
THE SCHOOL BOARD OF POLK COUNTY,
FLORIDA, et al.,
n
RESPONSE OF NORMAN J. CHACHKIN
TO ORDER OF AUGUST 17. 1992
Norman J. Chachkin, one of counsel for plaintiffs in the
above-captioned matter, respectfully submits this Response to
the order entered by this Court on August 17, 1992. (This
Response is submitted only on behalf of undersigned counsel
individually.)
1. The Court has instructed the Deputy Clerk to schedule
a half-day status conference in this matter between now and
November 1, 1992. Undersigned counsel respectfully advises
the Court that he is available, as of the present time, for
such a conference on any date between now and November 1, with
the exception of the period from October 1 to October 16,
1992. Undersigned counsel will be out .of the United States
from the evening of October 1 to the morning of October 17,
19921 and respectfully requests that the conference not be set
during that time period.
2. With respect to the subject matter of the conference,
undersigned counsel respectfully represents that it may be of
assistance to the Court to be apprised of steps previously
taken by counsel concerning implementation of the jointly
submitted order in a timely fashion. Attached hereto as
Exhibit "A" is a copy of a letter sent by the undersigned to
counsel for the School Board, with copies to other counsel, on
July 14, 1992, concerning required meetings, notice, and
consultation under the jointly submitted order.
3. Undersigned counsel respectfully submits to the Court
that the August 17 order is fairly subject to being
interpreted as an expression of criticism by the Court
directed toward the conduct of counsel for the parties in this
action. Because counsel are officers of the Court and have
substantial ethical responsibilities to facilitate the
administration of justice, such an interpretation of the order
is of grave concern to undersigned counsel. To the extent
that it is possible for the undersigned to provide the Court
with relevant information concerning the conduct of counsel in
1Counsel was required to make arrangements for this trip
in the Fall of 1991 and has held tickets for the necessary air
flights as well as reservations for accommodations for
approximately ten months.
this matter, therefore, he seeks to do so through this
Response.
4. With respect to the efforts of counsel to find a
negotiated settlement of the Bartow elementary school rezoning
question, attached hereto as Exhibit "B" is a July 15, 1992
letter from counsel for plaintiffs to counsel for the Board,
which analyzed what plaintiffs7 counsel believe are the legal
deficiencies of the plan adopted by the Board but sought a
negotiated compromise, concluding:
After you have ascertained your clients7
reaction to this response, we shall of course be
jpleased to discuss these issues further with you in
the hope of finding a way to resolve them without
returning to the District Court at this early stage
of implementing the Court order.
Additionally, attached hereto as Exhibit "C" is a July 17,
1992 letter from the undersigned to counsel for the Board,
memorializing a telephone conversation of that date which
conveyed to the undersigned the understanding "that the School
Board remains committed to the rezoning plan that it passed
and we are therefore at an impasse on the issue, so that it
will have to be taken before the Court." The letter requested
counsel's cooperation in facilitating informal discovery "so
that we may rapidly get to the point where we can submit a
joint explanatory report of our disagreement to the Court
112
• • • •
2The resulting document, Exhibit "C" to the Joint
Explanatory Report, is undated; however, materials in
(continued...)
3
5. Undersigned counsel was the primary drafter of the
proposed order submitted to the Court on behalf of plaintiffs
and plaintiff-intervenor on August 10, 1992 and which contains
the statement that "The parties plaintiff and defendant take
positions that are polar opposites, leaving the Court with a
difficult responsibility." The language was not intended to
be satiric or humorous but to refer to the School Board's
adherence to a plan which, in the view of undersigned counsel,
utilizes classic segregative techniques of pupil assignment.
The decretal language of the proposed order would have granted
the relief sought by plaintiffs and plaintiff-intervenor. The
balance of the proposed order was drafted by the undersigned
based on his guess about the view that the Court might have of
the controversy. It may have been presumptuous for counsel to
have made this attempt; at the time of drafting, counsel
believed that it would be of assistance to the Court. In any
event, if the language of the proposed order was offensive or
irritating to the Court in any way, undersigned counsel
respectfully apologizes to the Court.
6. With respect to the Court's observation (at p. 3 of
the order) that "assuming the bona fides of the parties'
earlier representations, [the likelihood of disagreement over
2( ••.continued)
M m eonTu!y IsT T m ? ^ f t " that ̂ was receivedthe process7 of drafti n n A h th* informati°n was evaluated, for the Join; p / n i S securing approval from all counsel
court went for«ard 4 ry ReP°rt that Was E m i t t e d to the
the rezoning plan in Bartow] should have been apparent to all
concerned [when the jointly submitted order was negotiated],"
undersigned counsel respectfully refers the Court to his
affidavit, attached hereto as Exhibit "D."
Respectfully submitted,
NORMAN J. CHAC
99 Hudson Street, 16th floor
New York, New York 10013
(212) 219-1900
5
Certificate of Service
I hereby certify that on this 19th day of August, 1992 I
served a copy of the foregoing Response of Norman J . Chachkin
to Order of August 17, 1992 upon counsel for the parties
hereto, by prepaid Federal Express next-day delivery service,
addressed as follows:
Larry R. Jackson, Esg.
Suite 220-B
101 West Main Street
Lakeland, Florida 33801
C. A. Boswell, Jr., Esg.
1915 South Floral Avenue
Bartow, Florida 33830
Sandra Lynn Beber, Esg.
Civil Rights Division
U.S. Department of Justice
Room 7736
10th & Pennsylvania Avenue,
N.W.
Washington, D.C. 20004
Norman J./ Chachkin
6
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VIA TELEFACSIMILE EXHIBIT "A"
July 14, 1992
C. A. Boswell, Jr., Esq.
c/o Polk County Public Schools
1915 South Floral Avenue
P. 0. Box 391
Bartow, Florida 33830
Re: Mills & United States v. School
Board of Polk County
No. 63-150-Civ-T-23 fM.D. Fla.)
Dear Bubba:
Now that the Order has been approved by the Court, I have gone
through^ it to isolate upcoming dates by which information is to be
provided, etc. I thought it would be useful to put these dates
down in a letter so that each of us has a convenient reminder of
what is coming up.
I understand that there are two immediate pressing matters, in
addition: first, consideration of the proposed attendance zones in
the Bartow area; and second, the school board's request for a
modification of the transfer provisions contained in the Order, at
least for the upcoming school year. As soon as I receive the
Bartow materials I will consult with Larry Jackson and we will
respond quickly. (In the Order, we had set a date of June 1, 1992
for presentation of the Bartow zoning plans, of course not
anticipating that the Court would delay approving the Order until
July 8.) We will likewise respond promptly on the transfer request
as soon as we have the racial impact information that I requested
Bill Davies to provide.
Beyond those issues, I note the following dates of
significance under the Order:
August 7, 1992 - This is the date by which, under Local Rule
4.18, an application for attorneys' fees is to be submitted. While
the Order can be read to extend that time to sixty days from July
8, it is somewhat ambiguous. Whatever the state of our
negotiations on the fee issue by August 7, it would be plaintiffs'
intention at least to file a bare-bones, protective application
with the Court, indicating that documentation and memoranda would
be subsequently submitted if negotiations are unsuccessful.
It seems appropriate to me to defer commencement of
discussions on the fee matter until we have finished dealing with
the more pressing questions of Bartow zoning and the transfer
NINETY NINE HUDSON STREET, 16th FLOOR (212) 219-1900 NEW YORK, N.Y. 100
request. However, this is a matter which Larry Jackson and I will
be ready to discuss with you at your convenience.
September 6, 1992 - According to I 2 of the Court's Order,
resolution of the fee issues "should occur" by this date. In
addition, pursuant to J II.D. (p. 37) of the Order, the district is
to provide other counsel by this date with a listing of currently
utilized portable and temporary buildings indicating their
locations and usage for the 1992-93 school year.
November 5, 1992 - Under f I.D.4. (p. 28) of the Order, the
district is to adopt regulations, policies and procedures to
implement the attendance provisions of the Order by this date.
March 1, 1993 - I.A.6. (p. 14) of the Order calls for the
presentation of the results of the study of extra-curricular
participation by this date. In addition, f I.B.l.b. (p. 20) of the
Order requires that detailed descriptions of the planned operation
of magnet schools in Winter Haven and Haines City be produced at
this time, and f I.B.3. (p. 21) calls for presentation of the
district's rezoning proposals for remaining areas of the system by
this date. 5 I.E.2.3 (p. 33) also requires the district to produce
data concerning the exercise of the transfer option for school
district employees at this time, and f VIII (p. 51) calls for
development of the plan for enhancing Seth McKeel Middle School.
After March 1, 1993 - Under f I.E.2.C. (p. 32) of the Order,
data on exercise of the option for "course availability" transfers
is to be presented to the other parties after March 1, 1993 and
March 1, 1994.
After March 1, 1994 - Under f I.E.2.C. (p. 32) of the Order,
data on exercise of the option for "course availability" transfers
is to be presented to the other parties after March 1, 1993 and
March 1, 1994.
March 1, 199? - Under fl.c.6. (p. 23) of the Order, plans for
the operation of additional Lakeland elementary magnet schools are
to be presented by March 1 of the year preceding the school year in
which each will open.
Unspecified date - f IV.C. (p. 47) of the Order requires the
district to present to the other parties the new criteria for
identification of candidates for and selection of students for
admission to gifted programs when the drafting process has been
completed.
Advance notification - Numerous provisions of the Order
require advance notification with respect to specific information.
In some instances, the requirements are triggered only by school
C . A . Boswell, Jr., Esq.
July 14, 1992
Page 2
NINETY NINE HUDSON STREET, 16th FLOOR (212) 219-1900 NEW YORK, N.Y. 1001i a.
system proposals to make a change in current methods of operation.
In other instances, there is an annual reporting requirement. A
listing of these provisions follows:
Disciplinary rules - f I.A.3.f. (p. 9) of the Order
requires 30-day advance notice of any rules or disciplinary
policies not contained in the Student Code of Conduct which
are to be applicable to any of the magnet schools. In light
of the imminent opening of school in the county, if there are
any such provisions that will be applicable at Union Academy,
Lincoln Avenue or Rochelle for the 1992-93 school year, this
information should be provided to the other parties
immediately. In addition, 5 I.A.3.g. (p. 10) of the Order
makes this provision applicable to the Harrison Performing
Arts Center.
Formerly black schools - f I.A.4.b. (p. 12) of the Order
requires 60-day advance notice of any proposed closing or
conversion to other uses of formerly black schools.
Future zoning changes - 5 I.C.8. (p. 24) directs 60-day
advance notice of future zoning changes.
Construction or site acquisition - f II.B. (p. 36) of the
Order requires 60-day advance notice prior to acquiring
property on which a school facility will be located or prior
to accepting bids for construction.
Portable buildings - f II. D. (p. 38) of the Order
requires notice at least 60 days prior to the commencement of
each school year (after the 1992-93 year) of proposed changes
in the location or use of portable buildings.
There are two final matters that I should mention. First,
your memorandum to me and Sandy of April 29, 1992 indicating that
the necessary modification of the original plan adopted by the
School Board to move the line between Griffin and Winston
elementary schools would be "advertised for Board adoption at the
earliest possible date." If the Board has not yet ratified this
change so that it can be implemented in the current school year,
this of course should be accomplished as soon as possible. We
would like to request confirmation that this has been done,
whenever it occurs.
Second, the Court's Order requires us to meet at least twice
yearly, it is apparent from the listing above that there will be
a great deal to discuss after March 1, 1993. It would seem
advisable, therefore, to have at least one meeting prior to that
time, at which counsel could review the initial enrollments for the
1992-93 school year and discuss such other matters as have arisen
C. A. Boswell, Jr., Esq.
July 14, 1992
Page 3
NINETY NINE HUDSON STREET, 16th FLOOR (212) 219-1900 NEW YORK, N.Y. 100
or as to which action is anticipated to be necessary. Sandy has
indicated to me that she will likely be unavailable in December.
I will be out of the country from October 1 to October 14. It may
make sense to think about a meeting in November, therefore. It is
a possibility that I simply wished to raise at this time so that we
can all be thinking about it.
I encourage you to review the Order independently in case I
have missed anything. I hope that putting the information down in
one place is helpful to all of us.
C.A. Boswell, Jr., Esq.
July 14, 1992
Page 4
Sincerely,
Norman J. Chachkin
encs.
cc: Sandra Lynn Beber, Esq. (by FAX)
Larry R. Jackson, Esq. (by FAX)
NINETY NINE HUDSON STREET, 16th FLOOR (212) 219-1900 NEW YORK, N.Y. 10013
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Harrp iCL Jfad&on
ATTORNEY AT LAW
SUITE 220-B
101 WEST MAIN STREET
LAKELAND, FLORIDA 33801
TELEPHONE: (813) 682-3111
VIA TELEFACSIMILE
July 15, 1992
C. A. Boswell, Jr., Esq.
c/o School Board of Polk County
1915 South Floral Avenue
Bartow, Florida 33830
Re: Mills & United States v. School Board
of Polk County, Florida
No. 63-150 Civ.-T-H____________________
Dear Mr. Boswell:
As counsel for the plaintiff class in the above-captioend
lawsuit, we have received and reviewed the materials which Bill
Davies transmitted to us relating to (a) the School Board's
proposal for rezoning elementary schools in the Bartow area for the
1992-93 school year, and (b) the system's proposal to modify the
provisions of the recently entered Court Order to allow students in
areas of the system outside Lakeland and Bartow, who were
previously transferred to schools other than those which serve the
attendance zones within which they reside, to remain in those
schools for one additional year.
As the parties embark upon the first stages of implementing
the comprehensive approach to desegregation of this school system
that we so recently agreed to, it is disconcerting to be presented
with proposals that appear to be so fundamentally in conflict with
the purposes and provisions of the Court Order. Frankly, these
proposals cause us to wonder whether the School Board, the
Superintendent and staff are seeking in good faith to carry out the
Court Order or are, in the judge's words, "maki[ng] unreasonable
demands or erect[ing] unreasonable barriers, which serve only to
prolong dispute and delay the accomplishment of both a unitary
school system and the consequent discharge of federal supervision.”
We hope that these doubts prove to be wrong but at the present
time, we are very troubled.
EXHIBIT "B"
All parties recognized in the Court Order (pp. 16-18) that
[i]n order to accommodate the operation of magnet
schools as provided above, to establish a middle school
form of grade organization, and to facilitate
desegregation within Polk County schools, attendance
zones shall be modified as follows in the 1992-93 school
year:
C.A. Boswell, Jr., Esq.
July 15, 1992
Page 2
c. Attendance zones for elementary schools in the
Bartow area shall be modified effective for the 1992-93
school year to accommodate the operation of magnet
schools as provided above, to establish a middle school
form of grade organization, and to facilitate
desegregation.
Rezoning of schools in and around Bartow is necessary because the
sixth grade is being removed from elementary schools and
transferred to middle schools, including the new Union Academy
magnet middle school, and to further desegregation. As the figures
provided to us indicate, in the current school year Gibbons Street
Elementary School in Bartow had a 61% Black enrollment and Stephens
Elementary School a 49% Black enrollment while Highland City
Elemenmtary School and Eagle Lake Elementary School were only 9%
and 8% Black, respectively. Significantly, elementary schools in
the Bartow area were not only substantially disproportionate in
their racial composition but many were substantially over- or
under-capacity, especially Highland City. This combination has
been recognized by the federal courts as a classic technique for
maintaining segregation.
In light of these commitments in the Court Order (accepted and
approved by the School Board) and the facts to which we have just
alluded, it is extremely disappointing to be presented with a plan
for Bartow area elementary schools, adopted by the Board, which
would substantially continue the pattern of maintaining schools of
substantially varying racial composition and substantially varying
utilization of the facility. Indeed, the plan which has been
proposed by the School Board adds to these problems a flat-out
refusal to assume the legal responsibility for assigning students
in accordance with the requirements of the Constitution and the
Court Order. Instead, the Board proposes to put the burdens of
achieving desegregation once again on Black students and their
parents by incorporating a limited "freedom of choice" option for
pupils residing in the "Gordonville/Gordon Heights" area. That
option is limited to school selections that would not cause the
enrollment of any facility to exceed 48% Black; white pupils in the
immediate Highland City area, on the other hand, will be
accommodated by placing additional portable buildings at the
already overcrowded site. Under the Board's plan, Highland City
Elementary would both exceed its rated capacity by more than 50%
and also continue to have the smallest Black enrollment of any
facility in this part of the school system, an enrollment that is
not substantially different (in racial composition) from its
present enrollment.
We cannot approve the proposal passed by the School Board.
Whether "Gordonville/Gordon Heights students had historically
attended school in Bartow" or not is irrelevant to the Board's
obligation to develop a rezoning proposal that meets the goals of
the Court Order. It is hardly an exaggeration to suggest that the
failure of the Board's desegregation efforts over the past decade
is related largely to attempts to retain historical attendance
patterns irrespective of their contribution to maintaining the
racial jldentifiability of schools.
The proposal recommended by the Superintendent is also
unacceptable to plaintiffs. It proposes the same overcrowding and
minimal improvement in desegregation at Highland City, on grounds
("Highland City is a separate community from Bartow") that are
legally and morally unacceptable as limitations upon desegregation.
You will recall plaintiffs' insistence in their Motion for Further
Relief on an approach to desegregation in the Polk County school
system that is not piecemeal. No less is required by the law.
E.q.. Davis v. Board of School Commissioners of Mobile County. 402
U.S. 33 (1971)(interstate highway could not be used as barrier to
reassignments for purposes of desegregation in consolidated city-
county system).
The proposal originally made by the Citizens Committee is the
closest, among the three plans that you have sent to us, to being
acceptable. However, we are compelled to note that it, too, fails
to make use of available capacity in the school system for the
purpose of maximizing desegregation and avoiding unnecessary
overcrowding, which is educationally undesirable. Specifically,
this plan would maintain Highland City Elementary School with the
lowest level of desegregation of schools in the area while
continuing to operate it nearly 25% over capacity; in addition,
Eagle Lake and Alturas Elementary Schools would see their
enrollment ratios improved by the one-way busing of Black students
from Stephens, even though this would put the school substantially
over its rated capacity. The number of white students now
attending Highland City Elementary who would be reassigned would be
limited, leaving that school overcrowded, while white students now
attending Stephens apparently would not be reassigned despite the
substantial under-utilization at Bartow and Floral Avenue. We
believe that further adjustments to the Citizens Committee plan are
required in order to produce an acceptable plan.
C.A. Boswell, Jr., Esq.
July 15, 1992
Page 3
With respect to the proposed one-year extension of out-of-zone
transfers, we are not in a position to agree to any continuation of
exceptions to the enforcement of the desegregation plan that the
school system is supposed to be implementing at this time.
Perpetuating more than a thousand out-of-zone transfers for another
year is, like the Board's proposal of a resegregative zoning plan
in Bartow, totally inconsistent with the approach to which the
parties agreed in the Court Order. At least until we have been
able to resolve the question of elementary school rezoning in
Bartow, therefore, we see no point in extensive discussions about
the transfer request.
C.A. Boswell, Jr., Esq.
July 15, 1992
Page 4
After you have ascertained your clients' reaction to this
response, we shall of course be pleased to discuss these issues
further with you in the hope of finding a way to resolve them
without returning to the District Court at this early stage of
implementing the Court Order.
‘ Sincerely yours,
f
VIA TELEFACSIMILE EXHIBIT "C"
July 17, 1992
C. A. Boswell, Jr., Esq.
c/o School Board of Polk County
1915 South Floral Avenue
Bartow, Florida 33830
Re: Mills & United States v. School Board
of Polk County, Florida
No. 63-150 Civ.-T-H (M.D. Fla.)______
Dear Mr. Boswell:
This will acknowledge our telephone conversation this morning,
in which you reported to me your clients' position with respect to
the Bartow rezoning and out-of-zone transfer issues that were the
subject of Larry Jackson's July 15, 1992 letter to you. My
understanding is that the School Board remains committed to the
rezoning plan that it passed and we are therefore at an impasse on
the issue, so that it will have to be taken before the Court.
Plaintiffs sincerely regret that matters have come to this
point. However, as Larry's letter indicated, the Bartow area
zoning proposal that the Board has adopted does not, in our view,
comport with the obligations of the Board under the Constitution or
the Court Order; if we have to have the matter resolved by the
Court, we must do so.
Given the short time remaining before school opens, I hope
that we can conduct any necessary discovery by agreement rather
than through formal filing of pleadings, so that we may rapidly get
to the point where we can submit a joint explanatory report of our
disagreement to the Court as required by paragraph (3) of Judge
Merryday's Order approving the proposed order which all parties
submitted in this case.
Specifically, I would request that the district produce copies
of any additional or alternative Bartow area elementary attendance
zone configurations that were prepared by the staff and/or were
considered by the Citizens Committee. In addition, if the Citizens
Committee was given any demographic data showing elementary school
population in the areas served by the schools involved (whether
tabular or in the form of an EcoTran-generated map, etc.) we would
like to see that as well.
Although I have not spoken with Ms. Beber as I write this
letter, I feel certain that the United States would also wish to
see copies of this information.
NINETY NINE HUDSON STREET, 16th FLOOR (212) 219-1900 • NEW YORK, N.Y. 100
If you would prefer me to file a formal Request for Production
of Documents or there is some other problem with this request,
please let me know.
C . A . Boswell, Jr., Esq.
July 17, 1992
Page Two
Very truly yours,
/c
cc: Larry R. Jackson, Esq.
Sandra Lynn Beber, Esq.
NINETY NINE HUDSON STREET, 16th FLOOR (212) 219-1900 NEW YORK, N.Y. 10013
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STATE OF NEW YORK :
ss.
COUNTY OF NEW YORK :
NORMAN J. CHACHKIN, being duly sworn according to law,
deposes and says as follows:
1. I am an attorney at law and one of counsel for
plaintiffs in the case of Mills and United States v. School
Board of Polk County, Florida, No. 63-l50-Civ.-T-23 pending in
the United States District Court for the Middle District of
Florida, Tampa Division.
2. I was an active participant, along with other counsel
for the plaintiffs and counsel for the United States and the
School Board of Polk County, in a series of negotiating
discussions during the spring of 1992 which led to the joint
submission by all parties of a proposed Order in that
li^i9 ation, which was adopted (as modified in one respect) as
the order of the Court on July 8, 1992.
3. During the negotiations among counsel for the parties,
the question of whether to include, in the jointly submitted
order, specific provisions describing how elementary schools
in the Bartow area were to be rezoned for the 1992-93 school
year was discussed. The school system representatives
suggested that the involvement of a citizens' advisory
committee in the Lakeland area had been beneficial and that
the same procedure was anticipated to work well in Bartow; for
this reason, it was proposed that final details of Bartow
EXHIBIT "D"
rezoning should be postponed until after the jointly submitted
order were approved and such a committee could be assembled.
This approach was ultimately taken in the jointly submitted
order.
4. At no time during the negotiations, and specifically
during consideration of the Bartow rezoning issue, did
undersigned counsel contemplate or imagine that substantial
changes in an advisory committee recommendation for the Bartow
area would be made by either the Superintendent or the School
Board. With the benefit of hindsight, undersigned counsel is
now of the view that it would have been preferable to have
settled the issue in the jointly submitted order. During the
negotiations, however, undersigned counsel utilized his best
efforts, knowledge and experience in evaluating the
possibility of a serious dispute arising on this issue and
concluded that it was not likely.
5. I believe that all of the other counsel involved in
the negotiations also believed and anticipated, in complete
good faith, that the matter of a Bartow rezoning plan would
not provoke the major dispute that has in fact occurred. I am
not aware of any plan or effort on the part of any participant
in the discussions to postpone resolution of difficult issues
for the future with the expectation that they would be
insoluble and would lead with certainty to contested judicial
proceedings. The provisions for such proceedings that were
2
included in the jointly submitted order were intended as
safeguards, not as crutches.
6. After this Court adopted the jointly submitted order
on July 8, 1992, counsel for the parties confronted the Bartow
rezoning problem and did seek to resolve it through
negotiations. It is my firm belief, based upon my contacts
with other counsel involved on that subject, that all counsel
made a serious effort to foster such negotiations, and that
this matter was presented to the Court in the Joint
Explanatory Report because counsel faithfully carried out
their* obligation to represent the wishes and decisions of
their principals.
I declare under penalty of perjury that the foregoing is
true and correct to the best of my knowledge, information and
Sworn to before me :
belief.
this 19th day :
My commission expires:
3